KOL367 | Disenthrall with Patrick Smith: Fisking Strangerous Thoughts’ Critique of “Intellectual Communism”

24:30 “ It’s impossible to own knowledge because all rights are enforced by a law and all law is enforceable with physical force and physical force can only apply to physical things in the causal world, which are the scarce resources which are subject to property rights. […] The court might issue an injunction saying you cannot use your printing press to print this Harry Potter book […] force is being used against your physical body, threatening you with jail time or with financial penalties or using an injunction against your physical property. So all rights are property rights and they all affect scarce resources. So it is literally impossible to own ideas.”

I basically agree with the thought, but find the expression quite misleading and exaggerated. Obviously this is not saying that the legal system currently does not treat copyrights and patents as things that can be owned, used, licensed, sold, and violated. So it is not physically or conceptually impossible. It must mean some other sense of impossibility.

IP is not logically self-contradictory, or at least if it is, this has not shown us the receipts. It does contradict some libertarian principles. Primarily, it contradicts a specific interpretation of Hoppe’s derivation of private property in his argumentation ethics that restricts property to rivalrous physical objects. Rivalry creates the possibility of conflict; Hoppe views property as a means for resolving and avoiding such conflicts. Without rivalry, property serves no necessary or even useful purpose. It’s purpose of avoiding conflict can be achieved automatically in a world without rivalry. Persons that Hoppe has persuaded could only defend IP by somehow showing that IP somehow counts as a rivalrous resource. (Lester makes such an argument, but equivocates on the meaning of rivalry.)

Dissenters from Hoppe’s property idea are free to imagine their own purposes for property norms and contradict Hoppe. Hoppe would probably reply that such alternative approaches depart from the libertarian principles he derived. Then the controversy shifts to arguments for and against that interpretation of Hoppe’s argument.

Another way to read “it is literally impossible to own ideas” is as “IP is misguided.” I agree that IP is misguided. But saying it is impossible seems like a much stronger claim.

What about the claim that “physical force can only apply to physical things?” When a law is enforced, the force is applied primarily to the violator, a person. The legitimate use of force against trespassers and aggressors does not need to be applied to the objects involved in the violation. So although they are usually physical, and perhaps there are good reasons that should always be the case, this does not provide these reasons explicitly here. Ownership is primarily a relation between persons, not between persons and objects. When I gain ownership of a thing, the object does not change, my rights against other persons change. Before I owned a thing, no one was obligated to consult me about its use or possession. Afterwards, they are obligated, and I have a right to recourse if they violate their obligations. This is a social phenomenon, not purely a physical one. It is probably a bad idea to create ownership of non-physical things, but if so, it has nothing to do with using force to respond to violations, or what the force is applied to.

It is tempting to think that a contract breach might provide a counterexample, where a valid dispute has no physical object as it’s source. But we could counter this, by pointing to Rothard’s and Evers’ theory of contract. That would indicate that it is the money paid for fulfillment or restitution of the contract, not the actions of the defaulter that are in dispute, and failure of fulfill the contract is merely the reason that the injured party is the legitimate owner of the damages.

But then why can’t the defender of IP make a similar move? This approach would cast IP as a sort of permanent contract, in which persons have agreed to act in a certain way with respect to intellectual goods. But then the controversy would move to issues such as, did the parties to the contract give informed consent? Is the contract valid? Etc. There probably are some good replies to that, but it still undermines the claim that all rights are property rights and property can only apply to rivalrous physical resources. Some rights are contractual rights, and although they ultimately may apply to the money involved rather than some intangible, the conclusion that “ It’s impossible to own knowledge” because knowledge is not physical seems not to follow, or to follow only in a weak sense. I don’t literally own the actions or circumstances that fulfill a contract. But I can get similar recourse if the contract is breached. I own restitution conditioned upon the non-fulfillment of the contract, which accomplishes the same outcome that owning those circumstances would.

Does this undermine Rothbard and Evers? The point of their argument was to interpret contracts in a way the they remain practical and usable, while ruling out circumstances where persons may end up with their bodies being owned by others. I don’t think the creation of a property regime that includes IP would obviously contradict any of their arguments. That doesn’t mean they require such a modification.