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Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading

May 26, 2006

Tags Legal SystemMonopoly and CompetitionOther Schools of ThoughtPhilosophy and Methodology

The following edited comments are excerpted from a recent email discussion with Walter Block and one of his correspondents, a Philosophy Professor (designated [PhilProf] below):

Walter, [PhilProf] -- Thanks for your email. Only time for a few comments now.
[PhilProf]: "I find it difficult to accept the following possibility, namely, that when, say, I publish a hardcover book with [Publisher], it would be just for someone else to reproduce the contents in a paper version and sell it at a very cheap rate, thereby undercutting my hardcover sales and destroying my paperback sales."
[PhilProf], I fully understand this intuition and emotion, but I'm not sure how it's an argument. I would rather put the burden the other way around: the default position is that each person is entitled to do as he wishes with his own property--by which I mean his body and other homesteaded scarce resources he owns--so long as he does not violate the physical integrity -- invade -- others' property.
BTW I think perhaps it may have been better had I used the economists' term "rivalrous" to characterize what I call "scarce" resources. By "scarcity" I do not just mean the relative plentifulness of similar types of goods; I mean a particular quality of a particular resource itself, whether it is the only one of its kind or whether there are millions of others. My Timex watch is scarce--rivalrous--simply because you and I cannot both control it/possess it at the same time--even if there are 100,000 other identical ones out there.


[PhilProf]: "1. Kinsella doesn't mean "scarcity" but finiteness, where distribution is a zero-sum state of affairs. Scarcity is I take it a relative notion. Even if land is not scarce, as among the early colonists, it was finite and property ownership was still crucial."
Every particular plot of land is scarce (rivalrous), even if there is pleny more to go around. The point is that 2 people could both want to use it at the same time, whcih would give rise to the possibility of conflict. Property rules allocate the right to control the resource to one person, so that it can be used without conflict.
[PhilProf]: "So, when we come to putative intellectual property, we should think of its legitimacy in terms of finiteness and not scarcity."
IMO, this argument falls away when you realize the type of scarcity we mean is rivalrousness, which ideas clearly are not.
[PhilProf]: "Finite what, you ask? Well, if someone else gets the money for selling a knockoff of my book, then I do not get that money."
Sure; you could use a similar argument against free competition. If you are the first barber shop in town then someone else comes along and puts up another, you now don't get some of the money you would have gotten from customers who now go to your competitor. so what.
[PhilProf]: "2. I grant you that there is a fine line between discovery of ideas (like discovering a literary pattern in a play) and creation. But no one doubts that my book on Plato, say, is my creation,"
Maybe; but as I tried to point out in my piece, creation is neither necessary nor sufficient for ownership.
[PhilProf]: "One flaw in Kinsella'a reasoning is a common one, namely, that where there is no absolutely clear division there is no difference."
Well; my argument does not rest on this. It is merely an additional nail in the coffin. Even if you could rigorously, objectively distinguish between discovery and invention, still, both are merely ideas, or recipes, or knowledge ,or information--and in either case, not the ontological type of thing that can be property. "Running" exists but it cannot be owned. Lots of "things" exist--or are they merely our way of organizing our percepts into concepts we can understand? I don't know and don't think it matters--but not all "things" are "ownable things". This is one problem with saying that you own something if you create it: it avoids the first step of asking whether the thing is an ownable thing; in fact, it presupposes that all things whatsoever are in principle ownable--memories, facts, things-that-happen, time, love, emotions, feelings, tendencies, smells, centuries, poems, letters, fonts, shades, giddiness, etc etc. etc ad infinitum. Funny however, all the advocates who want to "expand" the concept of property beyond the realm of the physical or tangible--scarce (rivalrous) resources--always want to enforce--en*force*--those rights wiht real, physical, force. If these ghostly, nontangible things are "real", "as real as" well, real things, then why not use some kind of ghostly, nontangible "force" to enforce them? Why sully your hands by dipping into the "real" world of force to enforce these proliferating imaginary rights? In short, you reveal that you really know that the only "real" things--re rights--are those that connect to and are part of the real, physical, world of scarce resources, whenver you advocate using real force against real objects, as the way to enforce rights in these imaginary, conceptual "things". It's having your cake and eating it too. Or is it, rather, having your cake while you deny that only substantial things can be eaten.


[PhilProf]: "As an author of lots of philosophy books, I know perfectly well the difference between "imaginary conceptual things" and a book (not the physical book, but the composition)."
But I mean to refer to a "book" as "imaginary"--to distinguish it from a tangible item.
My point is that unless you come up with some criteria for distinguishing ownable from non-ownable things, then any type of "thing" you can think of--basically, any concept--becomes property. Which shrinks more and more the domain of property in real things.
My criteria is the very thing that gives rise to the need for property rules in the first place: scarcity. Others apparently have no criteria, but seem to assume that so long as you think of some "thing" and can come up with a concept and name for it, voila, it's ownable--and who should the owner be but, of course, the "creator". What could be more natural? Except that this way of looking at it just presupposes that any "thing" is ownable.
[PhilProf]: "I'd say that the distinction between the creative product and random sequences is pretty clear to everyone, and even more significant than the difference bertween tangible and intangible property."
Well, I still do not agree that there is a clearcut difference between creation (innovation) and discovery, but even if there is, and if there is a distinction between "things" you "create" and other "things," still, you need to show why "creating" the thing makes it a type of thing that is ownable! Otherwise you are still begging the question.
That is, the first question is NOT, "Who owns this Thing?" Rahter, you only reach that question IF the thing is ownable in the first place. so the first question is: is this the type of Thing that is ownable? Does it fall in the class of Ownable Things? Or not? If it does, THEN we ask,--WHO owns it. Now, for all Ownable Things I am aware of, the owner is simply the first possessor or his descendant in title. If we say that poems, patterns, etc, are now ownable, then I suppose you could argue the creator has the best claim to own it. But in my view, we never reach this question.
I mean if you ask, "Who owns discus-throwing," I might have to say, well, all Greeks. But I would say, I reject the premise of the question: no one owns discuss-throwing, because it's not an Ownable Thing.
[PhilProf]: "On your view, the following is just fine. I sweat over my book for two years, and I contract with Oxford to publish it, to copy edit it, to promote it, etc. Someone (say a guy whose day job is bootlegging CDs) buys the first copy, runs off to reproduce it exactly and, since he has little overhead and doesn't have to pay royalties sells it for 1/4 the price that Oxford sets. My university bookstore is happy to buy the bootleg version because they think that by doubling the wholesale price (rather than the usual 30% markup), they can sell more copies and make more money than otherwise. What part of this story is just?"
I never said that was "fine"; and who knows what institutions would arise to thwart this, much like software publsihers now have a variety of ways to capture rents from sale of software in a piracy-laden world.
I would again simply ask you: for you to stop the "Unjustness" you allude to, you would have to use state force against some third party who never contracted with you or your buyer. Why is that "just"? Prima facie, it's aggression.
[PhilProf]: "By the way, I didn't mention patents on drugs because the consideration here is also obviously utilitarian."
Right. This is all old hat. We are not all utilitarians.
[PhilProf]: "Just to put this in some perspective, by the way, my last royalty check from [Publisher] was, I think for [dollar sum]."
Congrats--I also make money from some books, but try to be principled enough not to let that make me utter words i do not believe.
[PhilProf]: "I hope very much that we can continue this discussion. We can pick it up when you have time. I'm just sitting here producing another piece of intellectual property."
Yes--and without monetary pay. Imagine that.



I was thinking this morning about where our problem is exactly. It seems to me that you want to insist that property is exclusively the raw material that is possessed or inhabited. It remains property when it is worked out into something else only because of this. The "form" itself adds nothing to the "matter" insofar as property is concerned. This is certainly a bit paradoxical on a Lockean approach to property, since it is the mixing of one's labor that makes the raw material, the land, one's own.
Ok, so let's say we reject the Lockean approach. But then how do I possess the land? I can only literally stand on one tiny bit of land. To possess it is to homestead it, do something productive with it. If that is the case, why can we not analogize to artistic production? The only difference is that in the case of artistic production, we did not already own the raw materials. A third case would be, say, finding a piece of gold in the wild.
I don't have to do anything with it to own it. How does the gold differ from the land? Well. I guess I would say that they differ in that there is no way to say what land I own unless I work it, whereas there is a very clear way to say that I own this piece of gold. So, gold we can just own and do nothng with; land we have to work somehow. If property is made in these two different ways, I don't see why artistic products don't constitute a third sort of property, since it isn't just possession that does it in the case of land.

My reply:

Okay, briefly (I have addressed this in smatters here and there)-- 
I not only reject the Lockean proviso, I also reject the notion that "creation" is the way we come to own things. I think creation is neither necessary (if I homestead land I don't create it; if I chip a statue into a chunk of marble that I already own, I own the statue that results not because I created it, but because I already owned the underlying marble) nor sufficient (if I chip a statue out of your marble, without your permission, I don't own it).
Moreover, I reject the confused, over-metaphorical idea that you own your labor and "therefore" you own things you mix your labor with. Again, as with creation, I think ownership-of-labor is neither necessary (I own land I homestead because I am *first*, and have the best claim to it, not because I own my labor) nor sufficient (even if we did own our labor it does not show that we own things we mix it with--maybe we lose ownership of the labor by mixing it with things, much like you lose ownership of spit when you spit in the ocean).
I don't start out by asking what we should insist what property is. Rather, as a civilized person who has voluntarily decided to accept the civilized way of doing things and related civilized norms--that cooperation is good, that violent interaction is not preferred, ceteris paribus, etc.--as does anyone would discuss such matters with me, as you are doing now--I simply ask, when there is a possibility of conflict over a given thing (which is necessarily, therefore, a "scarce" things, otherwise conflict over it would not be possible), which of the claimants for the thing should be able to control it; that is, I simply ask, when there is a dispute over a rivalrous thing, which contestant has the *better claim* to it. Obviously, someone with a more objective link to the property and someone whose connection or claim to it is such that recognizing their ownership is the way that would be seen universally (by those searching for justice and fairness--i.e., by those who choose to be civilized--i.e. by those who choose to discourse peacefully about such things) to be the best way to permit that resource, and others, to be used in a conflict-free (civilized) way; and obviously, ceteris paribus, the *earlier user* of the thing has a better claim than latecomers. If prior users didn't have better claims than latecomers, there could be no property, no ownership; there would only be the (uncivilized) rule of the jungle, bare possession, and tooth and nail conflict over resource, which contradicts the presupposition of civilized discoursants that a conflict-free system of interaction is preferred. By the way, the significance of the prior-later user distinction is explained very well by Hans-Hermann Hoppe in his "argumentation ethics"; see www.HansHoppe.com; see also my discussion of Hoppe's views on mere verbal decrees and the prior-later distinction in Defending Argumentation Ethics.
Now none of this requires me to say that the form of property "adds nothing" to it. J. Neil Schulman, in his logorights piece, argues that the identity of a created intellectual thing is primarily determined by its pattern (logos) not its material substrate, and "therefore" the creator owns it. To me, this is just sleight of hand. It begs the question by presupposing that all types of things in general are ownable. It opens the door to ontological chaos, since there can be an unending proliferation of types of things that can be owned--and each of these things, if they are non-scarce resources, chokes back the domain of objective property rules that apply to the actual, real, tangible, scarce resources that really need such rules since real, violent, physical conflict over them is really possible.
It is similar to the phenomenon of artificial positive welfare and other rights enforced by the state diluting and infringing upon and invading natural, real, negative rights. Liberals think you can just add more positive rights to the roster without realizing--or minding--that this necessarily reduces the space of negative rights. Likewise, those who advocate any rights whatsoever in any non-scarce thing (like a novel-pattern, or method-of-doing-something) necessarily advocate reducing the space of rights that pertain to and protect the conflict-free use of scarce things. This is why I point out, for example, that assigning IP rights is a way of stealing property: if A owns a car and all of a sudden B gets exclusive right of a way-to-tune-car-engines because he thought of it first, then B becomes a partial co-owner of the car with A, since A's right to control over it is shared with B (in a particular way). The transfer of rights in the car from A to B is commonly called wealth redistribution, or, by principled libertarians who do not mince words, outright theft, or socialism. This is but one example of how recognizing rights in IP reduces rights in real things.
As for your question of how much land you homestead: I do not see that the problem is different if you look at it my way as opposed to the standard Lockean way. In both cases, there needs to be a decision made as to "how much" land you "mixed your labor with" (Locke) or "possessed" (in my case). In fact I would say that "mixing your labor" is a way of determining how much land you did use or possess--but it simply does not require one to say that you "own" your labor. It is confused to say this. You don't own your labor any more than you own your memories or love or emotions or knowledge or actions.
I simply do not see that this kind of reasoning can be applied to "artistic creations," for all the reasons specified above. As for a piece of gold you find it in the wild, if you appropriate it, then you have an objectively better claim to it than any possible contestant.

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