[From my Webnote series]
[See also IP and Aggression as Limits on Property Rights: How They Differ; and Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023): ch. 15, “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” Part IV.H, ch. 2, “What Libertarianism Is,” the section at n.52, “Property as a Right to Exclude”; also ch. 8, “Causation and Aggression,” text at n.3.]
[Update: see also Tom G. Palmer, “Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects,” Harvard Journal of Law & Public Policy 13, no. 3 (Summer 1990), available at tomgpalmer.com, pp. 830–31:
To those who might argue that any form of property limits liberty in some way, Jan Narveson responds:
This is to talk as though the ‘restrictions’ involved in ownership were nothing but that. But that’s absurd! The essence of my having an Apple Macintosh is that I have one, at my disposal when and as I wish, which latter of course requires that you not be able simply to use it any time you like; it’s not that you can’t have one unless I say so. [Quoting Jan Narveson, The Libertarian Idea (Temple University Press, 1988) at 77]
J.C. Lester, who pretends to be a libertarian anarchist yet supports intellectual property, makes the same argument criticized in this post. In Escape from Leviathan, he writes:
Intellectual property, we are told (281) [by Tom Palmer], conflicts with physical property and self-ownership. However, all forms of ownership constrain other forms of ownership. It is no more a valid argument against intellectual property that it restricts some things one can do with one’s person and physical property than it is that physical property limits what we can do with our bodies. If I may not walk onto your land without your permission, for instance, that does not mean that I do not own my body. Neither does it if I cannot play your music without your permission.]
From a discussion with “Russ”:
If IP really were a valid right, then a person would have “a right to use force against another to prevent them from using their own property to reproduce the aforementioned creator’s work”. That’s what the word “property” implies! For instance, let’s say that you own a gun. Let’s say that I own a dog. By virtue of my ownership of the dog, I do have the right to use force against you to prevent you from using your own property (your gun) in any way you might wish (e.g. if you wish to shoot my dog with your gun). Similarly, any property right implies the right to use force to limit what another can do with their own property.
Sure. And if chattel slavery were valid, the whipping of one’s slave would not be aggression. And if pigs had wings they could fly. But chattel slavery is not valid, and pigs do not have wings—and IP is also not valid.
Your mistake seems to be the assumption that property rights give you the right to do anything whatsoever with your property.
No, the assumption is only that you may engage in whatever action you wish, except those that invade the borders of others’ property—where “property” is conceived of in the Lockean sense of scarce resources homesteaded by appropriation, based on the first-comer has better title than the latecomer principle.
The fact that some actions are impermissible because they are invasions of others’ property rights has nothing to do with any “limitation” on one’s own property. You may not commit murder, whatever the means—whether it’s your gun or not. The limitation on action is not a limitation on property rights. In fact actions are limited because of others’ property rights!
They don’t. The right to swing your baseball bat ends where my front window begins. Similar, if IP rights were valid, your right to use your computer would end where my IP rights begin. Your argument just says that IP rights are invalid, because the limitations they necessarily impose on others’ property are invalid. But the limitations that IP rights impose are no different than the limitations that classical property rights impose.
Wrong. The limitations you are speaking of are not a property rights limitation but rather a limitation on one’s actions.
If these limitations are wrong, and invalidate IP, they also invalidate classical property rights.
If you want to keep classical property rights, which it seems you do, you need to come up with another reason why IP rights are invalid. I prefer an argument that is based on the fact that material objects are scarce goods, while patterns of ones and zeroes are not.
Because the question always comes down to: who owns this scarce resource–e.g., in a typical IP case, the IP “owner” claims the right to prevent A from using a scarce resource A himself homesteaded or acquired contractually from a homesteader. He claims the right to prevent this use even though A’s use—his action—does not invade any borders of A’s property. It is very different than your typical prohibition on murder etc.’
Update: for an example of this confusion, see the comments here (duplicated here), where one “ABR” disagrees with my view that we are self-owners. He writes:
Kinsella writes earlier: “The libertarian view is that each person completely owns his own body—at least initially, until something changes this, such as if he commits some crime by which he forfeits or loses some of his rights.” This statement is misleading. Under libertarianism, a person is not allowed to strike another person aggressively. Nor is a person allowed to trespass on another person’s land. Effectively, others are constraining the behaviour of each person. A person does not completely own his own body.
I.e. the fact that you cannot use your body to invade another’s body (because he owns it) somehow means you do not own your body. Not so. The action of invading another’s body is prohibited because he does own his body; his body-ownership is a limit on what actions I can take; it is not a limit on my property rights in my body; in fact my property rights in my body mean that this other person also may not invade the borders of my body without my consent. I explain this in my reply here, which reads in pertinent part:
Saying I don’t completely own my body because I may not murder other people is ridiculous. If I own my body, it implies others similar situated also own their bodies; so the impermissibility of my using my owned body to harm someone else’s own body is an implication of my own self-ownership, it does not undercut it! (I am reminded here of Rand’s attack on (the idealistic version of) Kant who said reason was inefficacious because it had a certain nature! how absurd).
…
But B is already being told what he can and cannot do with his property. He cannot launch rockets against his neighbour. He cannot start fires on his property that spread to his neighbours’ property. A restriction on B not to print Atlas Shrugged is merely one of many restrictions he faces.
The prohibition on B harming A’s property has nothing to do with B’s property. It is not a limitation on B’s property rights. B may not invade A’s property borders with any means, whether they are owned by B or not. And the reason he may not, is because of property rights—A’s property rights. But if A has them, so does B.
The reason, however, that B may not invade A’s land is because it is A’s property. You cannot just say that this means it’s okay to prevent B from using his own property in certain peaceful ways, unless you show that it violates A’s property rights. To say that it does in the case of B just using his property according to a certain pattern or recipe, is to presuppose that A has a property right in patterns. Which begs the question.
Update: The Economist on the American Patent System: Comment from “Tomkow May 9, 2011 at 12:32 am”: “Any system of property “constrains the liberty” of non-property holders against using that property.”
Update: Elsewhere I point out 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.” 1
Interestingly, George Mavrodes writes:
I propose to say that a certain agent owns a certain object if and only if he has the right to decide upon the disposition to be made of that object. And I will say that the owner’s having such a right entails at least two things: (1) the fact that the owner has disposed of the object in a way contrary to some other human agent’s preference is not, per se, evidence that the owner has done something which he ought not, and (2) the fact that some other human agent has disposed of the object in a way contrary to the owner’s preference is, per se, evidence that this other agent has done what he ought not. 2
This way of putting it is compatible with my approach here. The second part refers to the owner’s right to exclude others. The first implies that the owner using his property is not per se a violation of others’ rights (this is why ownership of a resource and the right and ability to exclude others implies, in most cases, the practical ability or capacity to use the resource), but it does not rule out that the use of the owned resource, by the owner, might in some cases be wrong. That is, merely owning a resource does not give the owner a blanket right to use it, since some uses violate others’ property rights. Keeping this in mind helps one from being lulled by the false formulation that property rights are limited by other property rights—and, thus, if IP rights limits normal property rights, that doesn’t show that IP rights are illegitimate; after all, all property rights limit other property rights! Or so the “reasoning” goes. But property rights do not limit other property rights; property rights limit others actions (and thus, do not directly give one a right to use one’s property as one sees fit; it simply prevents others from using it, without one’s permission). This is a subtle point and for some people, initially hard to grasp; but it is profoundly important.
***
Published: December 30, 2009 3:20 AM
Gil: “If I can’t spray a hail of bullets into a crowd of innocent people then I don’t fully own my machine gun.”
No. The prohibition on your shooting bullets is not a limitation on your ownership of your gun. It’s a limitation on what action you can perform–whether the action uses your own gun and bullets or those of another person. Ownership has nothing to do with hit. (See my comments here.) The reason I may not shoot people (with whatever gun) is just a specific application of the general notion that I may not act so as to cause the invasion of the borders of another’s property; I may not invade their property borders; I may not interfere with the physical integrity of their property; I may not use their property without their consent. I may not trespass. All these things are actions that employ some means, of course, but the means need not be owned by me, and it is irrelevant whether they are (see also Intellectual Property and the Structure of Human Action). So the prohibition on my action is a result of presupposing the validity of property rights in scarce resources.
For you to make an analogous case about IP, to argue that my putting a pattern on my own DVD may also be prohibited, you have to argue that the action itself is trespass. That is, that my impatterning my own DVD somehow invades the borders of someone else’s property right.There are only two ways this is so. First, if the DVD is not my property. But this is false, per assumption. The other way is if my action somehow invades the borders of some other scarce resource that another person owns. But clearly it does not. I am not interfering whatsoever in your ability to use your own body and resources.
The only remaining way out of this is to say well, it doesn’t trespass against any physical property you own, but it does trespass against your property in a certain idea, since it prevents you from using and exploiting that abstract, disembodied idea as you see fit—it uses the idea without your permission. And this is true. It does use the idea without your permission. But this is only trespass if you own the idea. Which is the question under consideration when IP rights is debated: so it’s merely a circular, question-begging assumption. It is a totally invalid argument.
Published: January 21, 2010 2:59 PM
- Silas Barta
The prohibition on your shooting bullets is not a limitation on your ownership of your gun. It’s a limitation on what action you can perform–whether the action uses your own gun and bullets or those of another person …
Any argument that merely involves relabeling things is an automatic fail.
(Which includes the quoted one above)
If I can’t do X with my machine gun, that is a limitation on my right to use the machine gun. It doesn’t matter if it arises from someone else’s rights, or the lack of a specific right to do X.
If you want to make a crucial, insightful argument, these relabeling tricks just don’t work.
Published: January 21, 2010 3:16 PM
- Stephan Kinsella
Person,
If I can’t do X with my machine gun, that is a limitation on my right to use the machine gun. It doesn’t matter if it arises from someone else’s rights, or the lack of a specific right to do X.
If you want to make a crucial, insightful argument, these relabeling tricks just don’t work.
Silas, the trick is in people who say that there is nothing wrong with IP’s infringement of property rights since after all, your property rights are limited in all sorts of ways. This is a common argument; and it is wrong.
The reason I am not able to use my bullets to kill you is because using them in this manner invades the borders of your own property–your body. Using my blank DVD to impattern it in a certain way, however, does not use your body or other scarce resources, so you can’t say the two limitations are analogous. To make them analogous you have to presuppose that you own the pattern itself, which is question-begging.
Now do you get it?
Published: January 21, 2010 3:50 PM
Grudgingly, I have to agree with Silas. The argument presented this way is circular. It might be in future possible for me or someone else to “fix” this problem, however so far the approach has failed.
There is a slightly similar issue however, one that Silas has failed to address. The only way to conclude that trespass in IP occurred is to observe the trespasser. With rival goods, including EM transmissions, this is not necessary, because a trespass on those leads to an observable change occurring at objects in the rightful owners’ possession or at their premises. For example, a stolen car is observable by the lack of the car in the parking space. EM interference is observable by receiving a different wave than the one expected.
Besides the practical question of how to monitor everyone, there is a more fundamental problem. If the only way to conclude trespass is that the trespasser performs a certain action (regardless of his location), any action whatsoever can be claimed to be a trespass. Why is “copying” singled out as the only action that leads to such conclusion? Why not any writing? Why not any attempt to create a machine, or a drug? Why not laying on one’s bed? Or blowing one’s nose?
Published: January 21, 2010 3:59 PM
Surda, what argument is circular? I disagree, if you are talking about mine about action etc. To say an action (or use of property, whatever) is prohibited because it infringes on the property of others, in typical cases such as trespass, does indeed presuppose the validity of property rights in scarce resources. It presupposes only that invasion of the borders of others’ owned scarce resources, is prohibited. Thus, if we assume both sides to the debate accept this, it does not follow that we have to accept that it’s okay to prohibit a use of property that does NOT amount to such trespass. This argument is not circular in the slightest. The argument simply points out that B does not follow from A.
Published: January 21, 2010 4:28 PM
See also Lamont Rodgers, Self-Ownership and Justice in Acquisition, Reason Papers:
Thus, Mack writes, “The existence of this constraint against Harry’s inserting his knife into Sally’s chest does not at all show that Harry has anything less than full ownership of his knife.”32 This is because the property right is itself constrained by the self-ownership of others. So the owner of the water hole owns it, even though he cannot preclude the travelers from drinking from it. The owner may well have a right to demand compensation for the access, but he cannot fully exercise his right to exclude people from the hole.
I agree with Mack here, but disagree that it has anything to do with Harry’s ownership of “his knife”; the constraint against Harry is not against inserting “his” knife into Sally’s chest without her consent, but against inserting any such object, whether owned or not, much less by Harry, into Sally’s body without her consent.
[Update: for a somewhat similar point by Rothbard, see “‘Human Rights’ As Property Rights,” in The Ethics of Liberty (New York: New York University Press, 1998), p. 114 (reference omitted):
couching the analysis in terms of a “right to free speech” instead of property rights leads to confusion and the weakening of the very concept of rights. The most famous example is Justice Holmes’s contention that no one has the right to shout “Fire” falsely in a crowded theater, and therefore that the right to freedom of speech cannot be absolute, but must be weakened and tempered by considerations of “public policy.” And yet, if we analyze the problem in terms of property rights we will see that no weakening of the absoluteness of rights is necessary.
For, logically, the shouter is either a patron or the theater owner. If he is the theater owner, he is violating the property rights of the patrons in quiet enjoyment of the performance, for which he took their money in the first place. If he is another patron, then he is violating both the property right of the patrons to watching the performance and the property right of the owner, for he is violating the terms of his being there. For those terms surely include not violating the owner’s property by disrupting the performance he is putting on. In either case, he may be prosecuted as a violator of property rights; therefore, when we concentrate on the property rights involved, we see that the Holmes case implies no need for the law to weaken the absolute nature of rights. 3
[And see also the comments by Mavrodes, above]
- See Stephan Kinsella, “Against Intellectual Property After Twenty Years,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), p.421 n.62; see also “What Libertarianism Is,” in the same volume, p. 32. [↩]
- George Mavrodes, “Property,” in Samuel L. Blumenfeld, Property in a Humane Economy (LaSalle, Ill.: Open Court, 1974), p. 184. [↩]
- See also KOL021 | “Libertarian Legal Theory: Property, Conflict, and Society, Lecture 4: Causation, Aggression, Responsibility” (Mises Academy, 2011), transcript at 1:08:41; KOL019 | “Libertarian Legal Theory: Property, Conflict, and Society, Lecture 2: Libertarian Basics: Rights and Law-Continued” (Mises Academy, 2011), at 49:55. [↩]
As I note in my article “
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