In discussing an article by Ron Johnson, The Government Says Money Isn’t Property—So It Can Take Yours, I mentioned that in previous writing 1 I had argued that just as bitcoin is not ownable, in today’s world of fiat money even dollars are not exactly ownable—but that I would not want to get the state to accept this argument at present time. A friend asked me: “what would follow if the courts accepted your premise? How could that affect intellectual property law?”
My response:
It wouldn’t affect it at all because calling a legally enforceable patent right “property” or “intellectual property” is not necessary for a court to uphold the validity of the patent law.
In fact if the court agreed with my reasoning, it would recognize that patent (and copyright) rights are just negative servitudes or easements on existing property, whereby the state simply grants a negative easement over a previous owner’s property to the patent holder, thereby giving the patentee a partial property right in others’ property (e.g. their factories). So the rights created by patents are actual, real property rights: they are negative easements over others’ factories. The court would also acknowledge that the easements held by patent owners/inventors are non-consensual (unlike normal negative easements (think: restrictive covenants in a planned neighborhood). 2 So we libertarians would say “Ahah! that means the negative easement that the patent grants to the patentee is unjust!” and the court would say “we don’t care”.
But at least the nature of the patent grant would be clearer and it could not then easily be referred to as “intellectual property.” 3 My argument that IP is illegitimate is not that IP “is not property”. 4 It’s that IP is really a state grant of a negative easement that the owner of the burdened estate did not consent to—the easement is non-consensual. The argument is not that IP or ideas “are not property”: it’s that any IP right is not really what it seems to be: it is not really a property right in ideas; instead, what it is, is a grant of a negative easement to A, over material resources already owned by others B, C, D…. Before the IP grant, third parties B, C, D had 100%, or full, or “allodial” to use a word beloved by cranks, 5 of their resources, by virtue of the two primary private law (and libertarian) principles of property acquisition: original appropriation (homesteading or occupation) or contractual title transfer. After the IP grant, the third parties only have a 90% ownership right since 10% (in the form of a veto right, i.e. a negative servitude) was given by state fiat to A.
This is the reason ideas are “not property”: because all legally enforceable ownership rights are necessarily rights to control scarce (conflictable) 6 resources (the word “force” is part of “enforceable” and force can only be applied to a material, tangible thing which is why there can only be property rights in material, conflictable things, i.e. scarce means of action). It is impossible to have property rights in ideas. All property rights are necessarily property rights in scarce resources. You just have to look at how a law works, how a given purported legal right works: you have to look at what legal control rights over the specified scarce resource at issue are given by the IP right that flows from a given law. Propadists and stupid and dishonest people call the rights granted by a patent (or copyright) a “property right”–in “an invention” (patent) or in “a work” (copyright) but it is literally impossible to have a property right in these abstract things, in “an invention,” in “a work,” in knowledge, in ideas, in recipes, since force (think: enforceable, enforceability) can only be applied to material, scarce things, just as your hand can only grasp a physical thing to wield and use it as a tool (as a means of action).
My related bitcoin (and dollar) argument is not that bitcoin “is not property”. It’s that any law granting a so-called property right “in your bitcoin” is really just a disguised grant of a non-consensual control or property right over others’ already-owned resources, which they acquired either by original appropriation or contract—namely, the computers owned by people who have a regularly updated copy of the blockchain on their computer’s memory devices. This is because “bitcoins” do not exist as independently existing “things”; “a” “bitcoin” is just the conceptual label we give to an entry in an abstract ledger that is how we think of or interpret data stored in or represented in thousands of copies of the blockchain ledger in computers around the world. Information does not exist in abstracto; it always requires an underlying medium or substrate: a brain (and its neural pathways: memories), a piece of paper, a carved rock, an etched CD-ROM, the memory board of a computer. Information is always just the impatterning of an underlying substrate or medium, which itself is necessarily physical (and thus ownable). Information is just patterns, and they require something to be stored on–something that can be impatterned. This medium or substrate has an owner, determined by reference to principles of original appropriation and contract.
To have a “property right” in “your” bitcoin doens’t mean owning “a bitcoin” since information is not ownable. It means that the holder of the state-granted “bitcoin right” has been granted, by state fiat, some control (ownership) rights over the computers/memory owned by every user of the BTC network. This is the only way the owner of “stolen” bitcoins can “retrieve” them: by a court order (backed by force) issued to every node operator that they have to “roll back” their copy of the blockchain to “restore” someone’s” (owned and stolen) bitcoins “back” to them.
Now traditional money emerged from material, scarce commodities, e.g. gold, which are ownable things—gold coins “are money” and are owned in accordance with original appropriation (gold mining) or contract (minting by contract, or contractual title transfer as when there is a payment made). But since the tie to gold has been severed and now dollars are pure fiat, and in fact are now entries on a central database (legally) owned by the state, one could argue that, like bitcoin, dollars are not owned because they do not independently exist; they are just entries on a database or ledger stored on some central computer run by the state. But as I pointed out in other posts, 7 I would not want the state courts to realize this or to decree that this means no citizen owns “their” dollars. Not until the state is abolished. One reason is that unlike in bitcoin, where recognizing property rights in bitcoins means a taking of property rights in others’ computers (just as an IP right is a taking of property rights in others’ factories or printing presses/paper by means of a non-consensual negative easement)—in the case of dollars, recognizing a property right in “dollars” just means that the citizens holding dollars are “really” partial owners of the computers nominally and legally owned by the state, and this is good, since the state doesn’t justly own anything.
- Nobody Owns Bitcoin and Libertarian Answer Man: Eminent Domain and Ownership of State Monetary Payments. [↩]
- Libertarian Answer Man: Restrictive Covenants and Homeowners Associations (HOAs). [↩]
- See Kinsella, “Intellectual Properganda”; “Defamation as a Type of Intellectual Property,” ; Legal Foundations of a Free Society, ch. 15, Part IV.I. [↩]
- See Libertarian and IP Answer Man: Artificial Intelligence and IP. [↩]
- See Peculium, and the State as Overlord. [↩]
- On Conflictability and Conflictable Resources. [↩]
- Nobody Owns Bitcoin; Libertarian Answer Man: Eminent Domain and Ownership of State Monetary Payments. [↩]
