IP and Aggression as Limits on Property Rights: How They Differ

From the comments to Reducing the Cost of IP Law [archived Mises blog comments] (see also my related post The Non-Aggression Principle as a Limit on Action, Not on Property Rights):

Russ:

“…You are (in effect) assuming that only scarce (and hence physical) entities can be “property” in order to “prove” that ideas and patterns cannot be “property”.”

I agree, Stephan. In Randian terms, you are smuggling in as an assumption that which is to be proved; that only scarce goods can qualify as property. In your own terms, you’re begging the question, every bit as much as you accuse others of doing.

Kerem: “How is, “IP is not valid because it infringes on the property rights of others” is an independent argument when it depends on the never proven but often assumed assertion that only scarce things can be property?”

It does not assume that ONLY scarce things are property, but it assumes that scarce things ARE property–don’t we all agree on this? The one that is up for debate is property in anything else. My contention is that assigning rights in non-scarce things necessarily undermines rights in scarce things. Since we all agree with rights in scarce things, we should oppose the type of rights-inflation that undermines this.

Surda:

any theory of property restricts the way some people may act.

Let’s be precise here. It is the nature of scarcity that restricts how people may act. Consider Guido Hülsmann’s comments in his 1997 article Knowledge, Judgment, and the Use of Property, p. 28:

There can be no doubt that the effect of the increased scarcity of tin will rapidly spread throughout the whole economic system and influence not only all the uses of tin but also those of its substitutes, etc. This process is, however, not best characterized by a coordinative function of prices.

The fundamental fact of scarcity implies that not every demand for tin can be satisfied. Some people have tin whereas others do not. An increased scarcity of tin implies that some market participants who otherwise could have benefited from tin are now of necessity prevented from using it. If a quantity of tin is sold, then the seller cannot sell it again, regardless of the exchange rate. There is simply no more of this tin left. Whether the seller takes notice of this or not is immaterial. He cannot sell what is no longer in his possession. Moreover, tin does not become scarcer and then this fact can come to be known to someone and lead to adaptations. Rather it is the other way around. The very fact that demand increases means that someone already knows of a more value-productive employment of tin.

(I discuss this also at note 9 and accompanying text of my Knowledge, Calculation, Conflict, and Law.)

Now, the fact of scarcity is part of the world. It is this which limits how we can act. The fact is that if there is a scarce resource, A and B cannot both use it at the same time. If they can, there is no scarcity, and no conflict. Conflict can only arise when there is scarcity, and conflict can only be conflict over the use of scarce resources. People say there is conflict over religion, etc., say–nonsense. Religion is the reason why A wants to kill or control B’s body, perhaps, but the conflict is over B’s body–a scarce resource.

The only question is whether the use of scarce resources will be conflict-free or not. If there are no property rules then the use of scarce resources is precarious and people will waste time in violent struggle rather than in productive use of resources.

To avoid such conflict and permit peaceful, productive use of scarce resources, property rules can assign ownership to identifiable individuals. As I have explained in What Libertarianism Is, all political and legal systems assign property rights–someone is assigned the legal right to control each particular scarce resource. The libertarian approach is unique in that the assignment is based on a consistent desire to avoid conflict, and so we follow a Lockean type of property assignment rule–the first user of a resource has a better claim, ceteris paribus, than later claimants. Now this is not a complete argument for the libertarian case, and in a libertarian forum where we all agree with this one need not argue for it–but you can see that the very nature and purpose of any property system is to permit the conflict-free use of scarce resources, and that the libertarian approach is the one most consistent with this purpose and nature.

So: it is not a theory of property that restricts how people may act. It is the omnipresent, undeniable fact of scarcity. A theory of property permits peaceful use of resources, by prohibiting violent struggle over them, which is not productive. The only question is whether the property rules are just or not. If they are all assigned to Donald Trump or the State, then this would technically allow conflict to be avoided but at the cost of injustice. The libertarian thus favors a just rule: assigning property rights in a given scarce resource to the first appropriator thereof.

This is not a restriction on action. It permits the resource to be used peacefully, and justly.

Now even the advocates of IP, such as Silas, are too happy to admit that they don’t really favor property rights in mere abstract “ideas”. No, they readily admit it’s only in physical instantiations of the idea. That is, they admit that what they want in their IP theories is to grant to A property rights in all the physical media (say) owned by B1, B2, … Bn. So the real dispute is always about scarce resources. If B owns a piece of plastic (a blank DVD) then the IP advocate wants A to have some property rights in B’s disk. He wants A to have a veto over B’s use of B’s own disk.

Now, there are many non-libertarian property rights theories–theories that undercut or are contrary to the libertarian-Lockean first-use-first-own rule. This is just one of them. It is not “circular” to point this out. It is not “circular” to be a libertarian, any more than it’s “circular” to be a socialist, communist, theocrat, or IP advocate. They all advocate property assignment rules that differ from the libertarian’s Lockean homesteading rule.

The attempt to analogize this to the gun shooting or murder prohibition example fails. If A is prohibited from murdering B, this is just a way of restating one application of the libertarian conception of rights: it is saying that B owns his body, and that A’s actions of shooting bullets into it violate’s B’s rights in that scarce resource. To say A is limited in what he may do is to recognize property rights in scarce resources.

In other words, the libertarian idea is that we do not live by permission. We live by right. We may do anything we wish in life, perform any action, unless it is an unconsented-to use of another’s property. In other words, unjustified interpersonal violence—conflict—is prohibited for the sake of establishing a regime where peaceful, productive use of scarce resources may occur. I can use my gun for anything one can think of: the possibilities are open ended—anything except narrow cases where it would be an act of aggression against others. But it is not as if there are 1,136 permissible things I can do with the gun, each one a “right,” and 17 things I cannot do with the gun. Rather, it’s as if there is an ocean of liberty—open-ended, infinite, with small islands of things that I may not do. (This is one reason the Ninth Amendment was added: because all our rights cannot be specified–so the first 8 amendments of the Bill of Rights is incomplete; so the Ninth recognizes that just because some rights are enumerated in the Constitution, this doesn’t deny or disparage the infinite, open-ended set of unenumerated—and unenumerable—rights that we have. For example I don’t need to specify that I have a right to wake at 7:03 a.m., another right to wake at 7:03:08 a.m., and so on; I have the right to do anything except violate others rights.)

The IP advocate has to view us as living by permission: you have those 1,136 things you may do with your gun, and only those things. It is a finite list, fixed at some moment in time. If B thinks of way number 1,137 to use a gun, then he owns this way-to-use-guns. That is to say, he owns all guns in the universe, to the extent they are used for method 1,137. And, they say, this does not harm owner A, since he never had that right in the first place. It doesn’t take away his right to use his gun for method 1,137; he only had homesteaded the first, known, 1,136 ways to use it. In fact, the IP fascist says, A is now better off, since he can learn from 1,137, and get permission for a small fee from B to use his gun in a new way. Everyone wins!

Except this is the totalitarian way of looking at things. We do not live by permission. Rothbard has explained that there is no right to free speech; it’s just one implication of property rights. In my Against Intellectual Property (p. 53), this is precisely why I pointed out that

We do not have to have a “right to copy” as part of a bundle of rights to have a right to impose a known pattern or form on an object we own. Rather, we have a right to do anything at all with and on our own property, provided only that we do not invade others’ property borders. We must not lose sight of this crucial libertarian point. If I own a 100-acres of land, I can prance around naked on it, not because the land is imbued with some “right-to-prance-naked,” but because I own the land and it does not (necessarily) violate the property rights of others for me to use my property in this fashion.

I am restricted in my use of my gun to murder B only because of property rights in scarce resources. Unless you can point to such an act of aggression (trespass), I can use my gun as a means for any action whatsoever. I don’t have to find an enumerated right #1,132 in my bag-of-rights, in my “permissions,” to do it. I can perform any action, so long as it is not a use of another person’s property.

And this is precisely why this is not analogous to the IP case. Pointing out the above as an implication or explication of how libertarian property rights is not circular. It does not assume there are only property rights in scarce resources; rather, it unwinds a theory about allocating property rights in scarce resources. The nature of such a system is what implies that assigning rights in “ideal objects” is really simply a different way of assigning rights in scarce resources–an assignment rule that differs from the libertarian-Lockean one; this is exactly why in my 2000 LRC article on IP explicitly opposed “the Second Homesteading Rule.”

The IP advocate’s argument is dishonest. He says, well, my IP rule limits your property rights, but so do all property rights. So what’s the big deal? The big deal is that the only limits we recognize are that you may not violate others’ property rights! Murder or normal theft or trespass is obviously an instance of this. But using my own property peacefully is not! The IP advocate needs to show that my use of my own DVD somehow interferes with his own property in his own scarce resources. Obviously, it cannot. So, it fall back on IP itself: it says, well, it doesn’t violate B’s physical property, but it does violate his intellectual property. Hellooooo–THIS is the circularity. The circular reasoning is done by the IP advocates, NOT by the libertarian who is simply a consistent opponent of aggression.

Published: January 22, 2010 10:58 AM

[AM]

Update: Jukka Varelius, “Do patents and copyrights give their holders excessive control over the material property of others?,”  Original Paper Published: 23 November 2014 Volume 16, pages 299–305, (2014) Cite this article Ethics and Information Technology Aims and scope Submit manuscript  https://link.springer.com/article/10.1007/s10676-014-9355-4. This paywalled paper is full of nonsense, too tedious to go through now. Jesus.