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Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”


I’ve noted before a central error of arguments for intellectual property (IP) is the idea that creation is an independent source of rights (see Libertarian Creationism; Rand on IP, Owning “Values”, and “Rearrangement Rights”; Locke, Smith, Marx and the Labor Theory of Value; this comment to “Trademark and Fraud”; Elaborations on Randian IP; Objectivists on IP). As I noted in “Intellectual Property and Libertarianism“:

… creation is an important means of increasing wealth. As Hoppe has observed,

One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways.[26]

While production or creation may be a means of gaining “wealth,” it is not an independent source of ownership or rights. Production is not the creation of new matter; it is the transformation of things from one form to another — the transformation of things someone already owns, either the producer or someone else.

Using your labor and creativity to transform your property into more valuable finished products gives you greater wealth, but not additional property rights. (If you transform someone else’s property, he owns the resulting transformed thing, even if it is now more valuable.) So the idea that you own anything you create is a confused one that does not justify IP.

There are two ways to acquire rights to property: homesteading unowned property; or contractually acquiring title to property held by a previous owner. It is wealth and value that is created or produced, by rearranging already-owned scarce resources. But no new property emerges from an act of production, from labor, from creation: new wealth is created, by making existing property more valuable. By being careful here about the distinction between “creating value” and acquiring property rights, by avoiding overuse of the creation and labor metaphors, we can avoid the mistake of thinking that we have rights in whatever we find, whatever we buy, and whatever we create, as if this latter is an independent, third category. We have rights to the value we create only as a by-product of owning the resource that we have made more valuable by rearranging it. And once we see that this third category does not exist, we see that the creationist case for IP evaporates. Creation never was a source of ownership at all.

Or, as I wrote in Against Intellectual Property,

One reason for the undue stress placed on creation as the source of property rights may be the focus by some on labor as the means to homestead unowned resources. This is manifest in the argument that one homesteads unowned property with which one mixes one’s labor because one “owns” one’s labor. However, as Palmer correctly points out, “occupancy, not labor, is the act by which external things become property.” By focusing on first occupancy, rather than on labor, as the key to homesteading, there is no need to place creation as the fount of property rights, as Objectivists and others do. Instead, property rights must be recognized in first-comers (or their contractual transferees) in order to avoid the omnipresent problem of conflict over scarce resources. Creation itself is neither necessary nor sufficient to gain rights in unowned resources. Further, there is no need to maintain the strange view that one “owns” one’s labor in order to own things one first occupies. Labor is a type of action, and action is not ownable; rather, it is the way that some tangible things (e.g., bodies) act in the world.

Palmer (p. 838) cites Hegel’s Philosophy of Right for the contention that “occupancy, not labor, is the act by which external things become property”. In particular, in §§50-51, Hegel writes:

The principle that a thing belongs to the person who happens to be the first in time to take it into his possession is immediately self-explanatory and superfluous, because a second person cannot take into his possession what is already the property of another. … Since property is the embodiment of personality, my inward idea and will that something is to be mine is not enough to make it my property; to secure this end occupancy is requisite. … Occupancy makes the matter of the thing my property, since matter in itself does not belong to itself.

So: creation does not give rise to property rights or new property, but only enhances the value of already-owned scarce resources. And it is being first to appropriate or occupy an unowned resource, not some metaphorical and derivative “ownership of labor,” that is the basis for Lockean homesteading. The idea of creation and the labor metaphor Locke employed has been wildly distorted by modern advocates of intellectual property. They regularly argue that if you own your labor then you own “things” that you create with your labor. Yet even the American Founders who put the IP clause into the US Constitution in 1787 did not think of IP rights as natural rights, steeped as they were in Lockean ideas. “To the contrary, they evidently viewed copyright as a policy tool, one aimed at promoting the progress of science and useful arts. They begrudged copyright’s interference with natural and common law rights, like the government they formed, as a necessary evil.” Tom W. Bell, Intellectual Privilege: A Libertarian View of Copyright, ch. 3 (draft). The Founders didn’t think Locke’s natural rights views implied that IP was a natural right, and Locke apparently didn’t either. As Professor Bell writes, Locke’s

labor-desert justification of property gives an author clear title only to the particular tangible copy in which she fixes her expression–not to some intangible plat in the noumenal realm of ideas. Locke himself did not try to justify intangible property. He appears, in fact, to have viewed copyright as merely a policy tool for promoting the public good. Modern commentators who would venture so far beyond the boundaries of Locke’s thought and into the abstractions of intellectual property thus ought to leave his name behind.

More pointedly, copyright contradicts Locke’s justification of property. He described legislation authorizing the Stationers’ Company monopoly on printing—the nearest thing to a Copyright Act in his day—as a “manifest . . . invasion of the trade, liberty, and property of the subject.” Even today, by invoking government power a copyright holder can impose prior restraint, fines, imprisonment, and confiscation on those engaged in peaceful expression and the quiet enjoyment of physical property. By thus gagging our voices, tying our hands, and demolishing our presses, copyright law violates the very rights that Locke defended.

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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