A commentary on and summary of Contre la Propriété Intellectuelle, a French translation of Against Intellectual Property, by Marius-Joseph Marchetti, has been published here: Contre la propriété intellectuelle : un essai éclairant [Part 1], and Part 2. The Google auto-translation is appended below, with light edits.
Against Intellectual Property: An Enlightening Essay
By Marius-Joseph Marchetti
August 7, 2019
Let’s dive into a quality libertarian work: Against Intellectual Property by N. Stephen Kinsella (and translated into French by Stéphane Geyres and Daivy Merlijs). The 76-page book aims to fulfill several roles, which it fulfills very well. It is divided into four parts, each essential for having an overall vision of intellectual property.
We will separate our analysis of Stephan Kinsella into two parts, to allow for greater readability.
The different forms of intellectual property
First, Kinsella begins by recalling the different forms that intellectual property can take, which are “rights over intangible things.”1 Kinsella reminds us that we generally consider four forms of intellectual property: copyright,2 trademarks,3 patents4 and trade secrets.5 We will ignore the technical explanations that the reader will find later (in the book or elsewhere) and refer to the definitions provided by the author.
The Spectre: A Representation of Different Libertarian Views on Intellectual Property
Libertarians can have completely different views on IP from one author to another. It is probably one of the most debated topics in the field, which makes Kinsella’s point of view even more important. Defenders of intellectual property are divided between those who use natural rights arguments (natural rights theory) and those who use utilitarian arguments (increasing overall utility). The natural rights argument in favor of intellectual property lies in the “natural right to the fruits of one’s labor” (Lysander Spooner ). On the utilitarian side, we find federal judge Richard Posner or the anarchist David Friedman, for reasons of “law and economics.” The defense of intellectual property rights is based above all on the theory of public goods (ideas being considered as such) and on the desire to avoid free-riding. But there is also a long tradition of opposition to patents and copyright among libertarians, as with Rothbard and Palmer. The question is therefore far from settled.
Kinsella glosses over the problems with the utilitarian defense of intellectual property, as these are related to the flaws in utilitarianism itself. The problems with utilitarianism lie primarily in the fact that utilitarianism:
- does not seek justice (that is, giving everyone their due), but utility, even if it means degrading the situation of third parties and not ensuring that everyone’s rights are respected
- even in a situation where we are simply looking for a Pareto optimum (a situation in which we cannot improve the situation of one individual without degrading that of another), we are faced with the impossibility of measuring interpersonal, and therefore subjective, utilities that are radically different from one individual to another.
To see the additional costs induced by intellectual property systems, we refer readers, like the author before us, to the work of Cole.6
But utilitarians aren’t the only ones at fault, according to Kinsella. Natural rights advocates who defend intellectual property are hampered by inconsistencies in how they understand property. For Ayn Rand, objectivists, and other libertarians who advocate, more or less, a natural rights approach, creation is the source of property rights. Intellectual property rights are therefore a reward for productive labor. However, the creation approach requires distinguishing between creation and discovery. A creation is a patentable invention, while a discovery is not. A line is drawn between “laws of nature” and unpatentable “abstract ideas” and patentable “practical applications,” and patent law distinguishes between the two. But the distinction is arbitrary, and the job of lawyers to sort things out is highly delicate, as the Supreme Court itself has stated. (( “the specification and claims of a patent (…) constitute one of the most difficult legal instruments to establish with precision.” Topliff v Topliff, 145 US 156, 171, 12 S.Ct. 825 (1892). )) One could just as easily end this distinction, as Galambos does, and forbid oneself from using any idea that is not one’s own. Applying Galambos’s principle implies that the person who invented fire would have had rights over the lighting of fire by other humans. With such a radical conception of intellectual property, one realizes that all human life would quickly become impossible.
Tomorrow, in a second part, we will address the problems linked to a poor understanding of the origin of property rights, and whether intellectual property can be transcribed by a strictly contractual approach.
***
This is the second part of our overview of Against Intellectual Property. We previously discussed the types of intellectual property found today, as well as the views of libertarians in favor of intellectual property. For the next points we will cover, we must first introduce the principle of Homesteading, as Kinsella does at the beginning of his book.
Homesteading, or the principle of “first appropriation,” is inspired by John Locke, who is often cited as a source of inspiration for many libertarians. Homesteading describes the first appropriation by an individual, and therefore legitimate, because it does not harm anyone by making the thing their own.
Intellectual property and intellectual property rights
All libertarians believe in the right to property in tangible or corporeal things. The overarching question, and one worth asking, is this:
What makes these tangible goods subject to property law?
Unlike Rand and the natural law advocates who defend intellectual property, Kinsella responds that it is not creation, but scarcity that is at the origin of property rights. Property rights fulfill a social and ethical function, which aims to prevent conflicts.7 Kinsella takes the example of a sword that an individual would have forged by grabbing resources previously taken from the earth by someone else. Not only does the act of forging a sword (a creative act) not make these resources his property, but he would be forced to pay damages to its legitimate owner, namely the first occupant. Property rights therefore have particular characteristics. They must be not only tangible, and therefore visible, but also just. This is why the first occupant rule is essential, because it is the only justifiable one, given that the allocation of resources is “objective, ethical and not arbitrary.” (( N. Stephan Kinsella, Against Intellectual Property , p.33. )) This is why, if we were in a utopian world where everything was available at our fingertips, the notion of property would have no meaning, because no conflict would be possible.
But in the case of ideas, the situation is quite different. Ideas are intangible goods, and if you share your idea with me, you are not dispossessed of it. The patent system, on the other hand, does not function as a system of property rights designed to prevent the conflict of scarcity. In fact, the principle is the opposite. It artificially creates a scarcity that did not exist before8 to induce us to “make the most of it,” patent rights and copyrights allow for the creation of a shortage of appropriate products that could otherwise not be maintained.” ]. It must also be taken into account that IP rights provide partial rights of ownership control over the tangible goods of all other owners.
The view of libertarians defending intellectual property is therefore, according to Kinsella, highly paradoxical, because they find themselves defending two contradictory laws of appropriation: the Lockean law of first occupation (legitimate), and the law erected under intellectual property and in defense of intangible abstract ideas providing rights of control over the ownership of tangible things (illegitimate).
Intellectual Property as Contract
Kinsella then addresses the less obvious part of the concept of intellectual property, namely intellectual property established by contractual arrangement. While contractual arrangements can recreate some intellectual property, it remains limited to the co-contractors in certain cases. Third parties are generally not affected by these agreements, since they are not signatories. This argument is opposed by Murray Rothbard , who develops what Kinsella calls a divisible “reservation of rights” approach. Let us imagine that third parties find the work, they would be prohibited from reproducing it, not because they had a prior arrangement, but because “no one can acquire a title of ownership superior to what has been given or sold.” In short, the person who buys this book possesses it in a tangible way, but does not have a parallel “copying right.”
This approach, Kinsella tells us, poses two problems: first, that of differentiating two goods, which are essentially identical, but are not subject to the same IP constraints (for example, one being stamped “copyright” and the other not). And finally, that of determining what prevents third parties from using information about this object. In the first case, Kinsella reminds us that the limits must be visible and justifiable, which is far from being the case in the example raised. In the second case, the fact of seeing an artifact, a particular combination of elements, does not transgress the tangible good of the owner. One cannot, Kinsella reminds us, be the owner of an action or a process.
In short, Kinsella glosses over patents and copyrights very quickly, which would clearly not be reproducible in their current form by the contract. Trade secrets, however, are easier to justify. If A agrees with X to keep his secret, and he works in another company, for example, that of his competitor Y, X can apply for an injunction to prevent A from disclosing it to Y. Although there is no contract between X and Y, if Y bribes A because he knows he is in breach of his contract, the latter can be considered an accomplice of A.
Trademarks, too, can be deemed legitimate. However, for Kinsella, if a competing brand commits fraud and copies its logo exactly with another, it is not the owner of the original trademark, but the consumers who should see their damages repaired. It is the consumers who would have the right to sue the pirates for fraud and breach of contract.
So that’s it for our summary of this short but fascinating book by Stephen Kinsella. Since we can’t afford to extend our explanations further, as this is only a summary, we invite readers to read it to learn about the chain of reasoning he uses to demonstrate the incongruities of intellectual property.
- N. Stephan Kinsella, Against Intellectual Property. Tom Palmer defines intellectual property as follows: “IP rights are rights in ideal objects, as distinguished from the material substrates in which they are embodied.” [↩]
- “Copyright is a right granted to the authors of “original” works, such as books, articles, films, and computer programs. Copyright gives the exclusive right to reproduce the work, to produce derivative works, and to perform or present the work in public.” [↩]
- “A trademark is a word, phrase, symbol, or design used to identify the source of goods or services sold and to distinguish them from the goods or services of others.” [↩]
- “A patent is a property right on inventions, that is, devices or processes that perform a useful function.” [↩]
- “A trade secret is any formula, device, or confidential information that gives its holder a competitive advantage for as long as it remains secret.” [↩]
- See Cole, Patents and Copyrights: Do the Benefits Exceed the Costs? [↩]
- On this subject, see Hans-Hermann Hoppe, A Theory of Socialism and Capitalism (Boston: Kluwer Academic Publishers, 1989), p. 235 n. 9.: “ [ It is only because scarcity exists that there is also a problem of formulating moral laws; to the extent that goods are superabundant (“free” goods), no conflicts related to their use are possible and no coordination of actions necessary. It follows, therefore, that any ethics, properly conceived, must be formulated as a theory of property, i.e., a theory of the assignment of rights of exclusive control over scarce means. For only then does it become possible to avoid otherwise inevitable and insoluble conflicts.” [↩]
- Plant, The Economic Theory Concerning Patents for Inventions , p. 36: “It is a peculiarity of patent rights (and copyrights) that they do not arise from the scarcity of the objects appropriated. They are not a consequence of scarcity. They are the deliberate creation of a statutory status, and whereas in general the institution of private property serves to preserve scarce goods, tending […] [↩]
You must log in to post a comment. Log in now.