Libertarian Answer Man: “property rights as it pertains to data as physical matter”

Query:

I know you’re probably a busy guy, but if you have a minute or two, I’d like to get your thoughts on, or established articles about, property rights as it pertains to data as physical matter. I have started writing an article about this matter, but before I get too far along, I’d like to see if there have been others who have already tackled this. My essential consideration is how to apply a property-rights framework to the physical matter in which data is contained (EM waves, light pulses, radio, etc.). I initially came up with a simple analogy of driving your personal car along a roadway owned by Others (private or govt as the case may be) and someone physically barricading your car to be able to search it for whatever purpose (without voluntary consent). Similarly, the data we send on our phones which is transformed (homesteaded) by our labor by the use of software on our phone that digitizes the data and packages it into whatever physical EM signal is used to transmit. The data signal is the car on the road, but once that data packet is distributed by the wireless router through fiber-optic cables owned by some private entity, it has now gone onto the street and so becomes subject to some agreement between the owner of the signal and the transport media (fiber cable). Maybe what I am wondering is simply what the “fine print” user agreements amount to when agreeing to use an app. Anyway, I would appreciate any feedback at all regarding this concept, even if just a few quick points of reference or critique.

Answer:

No time at present to reply at length—but very quickly, labor is not ownable and the labor theory of property is wrong. See—

• KOL274 | Nobody Owns Bitcoin (PFS 2019)
• The Libertarian View on Fine Print, Shrinkwrap, Clickwrap
• KOL037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory
• Why Airwaves (Electromagnetic Spectra) Are (Arguably) Property (Aug. 9, 2009)
• Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, Part IV.F “Resources, Properties, Features, and Universals”
• The Nature, Properties, and Characteristics of Goods (Igloo Coolers case)
• The “Ontology” Mistake of Libertarian Creationists
• IP is Not “Not Property”
•  Libertarian Answer Man: Self-ownership for slaves and Crusoe; and Yiannopoulos on Accurate Analysis and the term “Property”; Mises distinguishing between juristic and economic categories of “ownership”

From: The Nature, Properties, and Characteristics of Goods (Igloo Coolers case): “… But it calls to mind a point I have made before: see Against Intellectual Property After Twenty Years: Looking Back and Looking Forward:

IV.F “Resources, Properties, Features, and Universals”

As noted above (see note 31), confusion about the IP issue sometimes stems from identifying “property” with the owned resource. People then get bogged down in loaded or confused questions like, “Are ideas property?” If one keeps in mind that the question is not what is property, but rather who is the owner of a conflictable resource, then the IP mistake is harder to make. A related mistake stems from the failure to understand that all human rights are property rights and all property rights just are rights to the exclusive control of a given scarce (conflictable) resource.^[62] But every property right is an ownership right held by a particular person or owner with respect to a particular conflictable resource. It is the actual resource itself which is owned, not its characteristics.

For example, if you own a red car, you own that car, but you do not own its color; you do not own red or redness. If owning a red car meant you owned its characteristics, you would own not only that particular car, but its age, weight, size, shape, color, and so on, and, thus, would thereby have an ownership claim over any other object that is red, and so on. This would amount to reassigning ownership rights in someone else’s red car to you, even though he owns that car and you did not homestead it or obtain it by contract. Likewise, information cannot be owned since it is not an independently existing thing; information is always the impatterning of an underlying medium or carrier or substrate, which is itself a scarce resource that has an owner.^[63] If I own a copy of Great Expectations, I own that physical object: paper and glue and ink. It has various characteristics: an age, a size, a shape, and a certain arrangement of ink on its pages—the way the ink is impatterned so that it represents letters and words and meanings to someone who can read and who can observe the features of the book. But just as you don’t own the color of your car, you don’t own the way an object is arranged or shaped.^[64]

^[62] To be even more precise, I would say that a property right is not a right to use a resource, but a right to exclude others from using a resource. In practical terms this gives the owner the ability to use it as he sees fit so long as he is not using trespassing on others’ property rights. This follows from the analysis in Kinsella, “The Non-Aggression Principle as a Limit on Action, Not on Property Rights,” StephanKinsella.com (Jan. 22, 2010) and idem, “IP and Aggression as Limits on Property Rights: How They Differ,” StephanKinsella.com (Jan. 22, 2010). However, this nuance need not concern us here. See also “What Libertarianism Is” (ch. 2), p. 32; George Mavrodes, “Property,” in Samuel L. Blumenfeld, Property in a Humane Economy (LaSalle, Ill.: Open Court, 1974), p. 184; “A Libertarian Theory of Contract” (ch. 9), n.1; Connell v. Sears, Roebuck Co., 722 F.2d 1542, 1547 (Fed. Cir. 1983) (“the right to exclude recognized in a patent is but the essence of the concept of property”), citing Schenck v. Nortron Corp., 713 F.2d 782 (Fed. Cir. 1983). Further, property rights are rights as between human actors, but with respect to particular resources. See “A Libertarian Theory of Contract” (ch. 9), n.1.

^[63] J. Neil Schulman argued for years for a form of IP known as “logorights.” Oddly,  perhaps partially in response to my relentless criticism of his flawed argument, he eventually changed his argument to argue for “media-carried property,” thus implicitly acknowledging that he was in favor of property rights in characteristics, or features, of owned objects, i.e., universals. See “Introduction to Origitent” (ch. 16) and “Conversation with Schulman about Logorights and Media-Carried Property” (ch. 17).

^[64] Even the pro-IP Ayn Rand implicitly acknowledged this. As she wrote:

The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power—and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.

See Kinsella, “Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging,’” quoting Ayn Rand, “The Metaphysical and the Man-Made,” in Philosophy: Who Needs It (New American Library, 1984), p. 25. See similar quotes by Rothbard, J.S. Mill, and Mises in ibid; and Reisman, “Progress In a Free Economy.”

Neil Schulman and I bat these ideas around in “Conversation with Schulman about Logorights and Media-Carried Property” (ch. 17). ¹

And:

as I pointed out before, ² bitcoin cannot be owned since it does not “exist” as an independent material thing—but which is instead just the conceptually understood unit of an abstract concept of a spreadsheet or ledger, essentially a data or information structure that is also was just stored on or impatterned in some existing material substrate or carrier, which itself has independent existence and as a scarce thing, an owner according to standard property allocation principles (original appropriation and contractual transfer)—and because it does not exist in this sense it cannot be possessed and also cannot be owned …. ³

1. Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, Part IV.F, “F. Resources, Properties, Features, and Universals”. See also KOL475 | ECON104 (Saifedean Ammous and Saylor Academy) (“if I have a red ball and I own the ball, that means I own its features or properties, like its redness. Does that mean I own everyone else’s red thing…?”); KOL470 | Intellectual Property & Rights: Ayn Rand Fan Club (“Your car is red, but you don’t own that feature of the car, that characteristic or property of the car. You don’t own its redness.”); The “Ontology” Mistake of Libertarian Creationists (uses the redness/red car analogy); Patrick Smith: Un-Intellectual Property (discusses ownership of the object vs. its features/characteristics, giving a red balloon/redness example). [↩]
2. KOL274 | Nobody Owns Bitcoin (PFS 2019) [↩]
3. On Property Rights in Superabundant Bananas and Property Rights as Normative Support for Possession. [↩]