Revised: April 21, 2017
The views and opinions in this article written by Chris LeRoux, with some input by Tal Salsa, do not represent the views and opinions of other people that write on peacefreedomprosperity.com.
Clifton Knox, in “A Treatise on Ownership: defending intellectual property,” has offered up a somewhat confused and limited defense of ownership of what is generally called IP. I will briefly explain the strengths and weaknesses in his approach.
“The appearance of peer-to-peer file sharing rocked static industries such as music, book, and software publishing. These industries sought to restrict, or bottleneck, access to original works through predefined outlets and older, easier-to-control mediums. As the public’s appetite for digital files grew, these industries and others failed to keep pace, and the result was a rampant violation of intellectual property law. It is the failure of these industries to change which gave rise to a black market for intellectual property.”
It isn’t industry that has failed but rather the governments that created and coercively monopolize the system. It is a typical tragedy of the commons.
“The argument is as follows: abstract boundaries define all property. Abstract boundaries are ideas which require moral agreement. Property is synonymous with ownership. Therefore, ownership is defined by abstract boundaries and moral agreement.”
The above statement seemingly ignores the Austrian school definition of ownership as ‘exclusive control obtained without initiating coercion.’ Ownership is achieved via the physical actions of homesteading, production, and-or voluntary exchange and the boundaries are demarcations of “mixed labor.” If an individual on unowned land picks up an unowned stick, they own that stick. They have obtained exclusive control without initiating coercion. Thus, property and its boundaries are concrete and objective, not abstract. Also, property is not synonymous with ownership. Property is ‘that which is under ownership.’
“There is no true delineation between so-called “intellectual property,” and so-called “scarce property,” and if one is accepted as moral, then the morality of the other must be accepted as well.”
“The point is that scarcity is controlled by the function of supply and demand. Scarcity is not a feature of resources or the tangible world, as Kinsella maintains. Scarcity is a subjective description of a resources relationship to human beings within an economy. Kinsella is correct in maintaining that scarce resources cause rivalry among consumers, but he is incorrect in his assumption that scarcity is an objective and real attribute of resources. To treat scarcity as if it were a permanent feature of the existence of an object in the world instead of a feature of the relationships between humans and those same resource objects is a serious logical flaw and one that leads to all sorts of odd conclusions, as he indeed has. Cwik points out quite adeptly the example of crude oil. On the market today, oil is a high demand resource with limited availability and limited reserves. Thus, oil is a perfect example of a so-called ‘scarce’ resource. However, it was not always scarce. For example, today oil is a scarce good. However, several centuries ago, not only was oil, not an economic good, it was an ‘economic bad.’ If oil were to come bubbling up from the ground, it could destroy one’s crops and result in the starvation of one’s family. The physical characteristics of oil have not changed, rather what has changed is how it is used. This change was a demand side change” (Cwik 6).”
This critique of the claim an existent must be scarce to be property is entirely correct. Scarcity is subjectively assessed by each individual and is relative to supply and demand. This is the Austrian school theory of subjective, marginal utility. The oil example is a good one. Imagine also someone picking up a grain of sand in an unowned desert. Its scarcity would depend on individual, subjective assessments of marginal utility. If the sand was found to be a cheaper, more efficient, and more reliable, source of energy than oil, it would increase in scarcity. Regardless, ownership of the grain of sand was established via homesteading and any violation is criminal. The law of private property is: 1) absolute: has no exceptions, 2) axiomatic: cannot be rejected without contradiction, 3) eternal: applies to all of time, 4) objective: unbiased by personal feelings, 5) universal: applies equally to all humans, and 6) metaphysically imposed natural law established by self-ownership (Hans-Hermann Hoppe, Argumentation Axiom). It is the law of private property which distinguishes aggressor from victim, crime from law, coercion from voluntaryism, and statism from anarchism. It is the law of private property which rules aggression, coercion, and the state criminal.
Further, the anti-IP adherents have merely confused a cheaper cost of reproduction achieved for certain goods via improvements in technology with what they call a lack of scarcity. Ideas are actually the most scarce commodity that exist, for nothing new can be achieved without new ideas. If ideas weren’t scarce, every human being would already know all the ideas that could ever exist. Additionally, the fact that individuals purchase an existent proves it is scarce. People don’t buy non-scarce existents, because they are available for free. But, individuals do voluntarily purchase ideas, books, machines, music, movies, software, and so on. This proves these things are scarce. Finally, people do indeed come into conflict about ownership of all these various existents, hence the entire debate. So, Kinsella’s assertion that there can be no conflict over them is obviously contradictory.
“Stephan Kinsella fields several arguments which are construed as natural rights arguments but are utilitarian. The first argument is that so-called ‘intellectual property’ allows one intellectual property owner to control what scarce property owners may do with what they own. Patents and copyrights limit what others may do with resources under their ownership.”
There is, however, an exception to the right to use and disseminate the knowledge within one’s head: namely, if it was procured from someone else as a conditional rather than absolute ownership. Thus, suppose that Brown allows Green into his home and shows him an invention of Brown’s hitherto kept secret, but only on the condition that Green keeps this information private. In that case, Brown has granted to Green not absolute ownership of the knowledge of his invention, but conditional ownership, with Brown retaining the ownership power to disseminate the knowledge of the invention. If Green discloses the invention anyway, he is violating the residual property right of Brown to disseminate knowledge of the invention, and is therefore to that extent a thief. . . Hence, our theory of property rights includes the inviolability of contractual copyright [and contractual patent]. . . it should be noted that many, if not all, of the problems could be easily surmounted. . . by the promisee’s requiring a performance bond of the promissor in the original agreement. . . Since money, of course, is alienable, and since such a contract would meet our title-transfer criterion, this would be a perfectly valid and enforceable contract. . . Failure to meet the performance bond will then be an implicit theft of the property of the owners. . . Furthermore, in its centuries of use, almost no creditors bothered to sue in the courts for “damages” (in a “writ of covenant”), since the “damages” had been fixed in advance in the contract. ~Murray Newton Rothbard, Ethics of Liberty (1998), [bracketed modifier mine]
“The answer to the communist claim that property is theft because it restricts what people may do with their bodies is eerily similar to the answer to Kinsella’s argument that intellectual property steals ownership from others.”
This is very well said. Kinsella ultimately rejects all property. This follows from his other errors. For instance, he once said, “Property rights are legally recognized rights of control over a resource that can be the subject of conflict,” and “To call an object or thing property is confusing or misleading.” This seems to indicate he believes property is just a matter of opinion, not an absolute determined by the fact of homesteading, production, and voluntary exchange. He seems to believe if the state or society rejects the existence of private property then there isn’t any private property. This is erroneous. Private property is the law and any one who violates it is a criminal.
“There is much more to consider than what may be presented within this limited work. There are questions which regard the current morality and fairness of the intellectual property system within the United States and other countries. There is no attempt here to cover the vast amount of questions regarding what is a moral, legal system of ownership.”