Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors
In my posts Owning Thoughts and Labor and Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading, I discuss several problems with over- or mis-use of various metaphors in political theorizing, especially the idea that we "own" our labor and "therefore" come to own things we "mix our labor with"; the idea that we own things we "create," and that this is one of the main ways (or the only way) to acquire ownership in things; and related notions such as the idea that we have property rights in the "value" of things we own.
[Update: see Oliva on Objectivists and "Second-hand Property Rights"]
As I argue in the posts above and elsewhere (e.g., How We Come to Own Ourselves; Defending Argumentation Ethics; Owning Thoughts and Labor), homesteading does not need to rely on the strange, non-rigorous, overly-metaphorical idea that we "own" our "labor." One owns has a better claim to unowned things one first uses, than do latecomers. Period. It has nothing to do with "owning" "labor." We own scarce resources, not our labor.
As for the idea that we own things we "create," this idea is often used to justify IP--after all, who can deny that an author "creates" his novel? So if you own normal (tangible) property because you create it, why don't you own other "ontological" types of things you create, like poems or inventions or recipes? (See, e.g, the argument for IP by Tibor Machan.) The problem with this idea (see pp. 26 et pass. of Against Intellectual Property; Owning Thoughts and Labor; and the discussions in the comments section of Trademark and Fraud) is that creation is neither necessary nor sufficient for ownership. If you already own the underlying material that you re-shape into a different, more useful configuration, you own the resulting thing because you already owned the material that it is made of (imagine carving a statue out of your hunk of granite). And if you carve a statue in someone else's granite, you don't own the statue. In fact, the only way to come to own something is to either find it unowned and appropriate it; or to obtain it contractually from someone who did (or his transferee).
Finally, all this is intermixed with the idea of value. A common mistaken belief is that one has a property right in the value, as opposed to the physical integrity of, one's property. For elaboration, see pp. 139-141 of Hoppe's A Theory of Socialism and Capitalism; also see my comments re same to Patents and Utilitarian Thinking. This assumption sneaks into or lies at the basis of many fallacious notions of property rights, such as the idea that there is a right to a reputation because it can have value. It ties in with the (especially Randian) notion of "creation" as the source of rights, and the confusing admixture of the "labor" idea, when we talk about using our labor to "create" things of "value" (like reputations, inventions, works of art). Actually, if you labor transform a homesteaded thing into something more valuable, you own the resulting valuable thing not because you created it; not because you own your labor--but because you were the first user of the underlying property that was transformed. Yes, your creative labor made the object that you owned more valuable to you (presumably, ex ante, as this was your goal), but it is not a source of ownership. Therefore, it's a non-sequitur to leap from these observations and say that you own anything you create that has value.
As Hoppe notes in his classic article Banking, Nation States and International Politics: A Sociological Reconstruction of the Present Economic Order,
"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."
Note that Hoppe here acknowledges that "production" is a means of gaining "wealth". But this does not mean that creation is an independent source of ownership or rights--production is not really the creation of new matter; it is the transformation of things from one form to another; things one necessarily already owns. Therefore, the resulting more valuable finished products--the results of one's labor applied to one's property--give the owner greater wealth, but not additional property rights. If I carve a statue out of my stone, I already owned the stone, so I naturally own the resulting statue; what has changed is that I have transformed my property into a new configuration that is worth more to me, and possibly to others. (This is discussed further in Owning Thoughts and Labor.)
I mention all this because these issues came to mind when I read the recent comments of an Objectivist law professor, Adam Mossoff, on copyright and related matters. See, e.g., his "Locke's Labor Lost," 9 University of Chicago Law School Roundtable 155 (2002); "Is Copyright Property?" 42 San Diego Law Review 29 (2005); both available on SSRN.
In the copyright piece, in the short span of two paragraphs, Mossoff nicely illustrates the kind of reasoning I'm talking about--the misuse of the concepts of creation, labor, and value in an attempt to justify copyright as a natural right. Writes Mossoff:
Property is the right to acquire, use, and dispose of the things that one has created through one's labor. It is this concept of property that precipitated the virtual truism in American society that every person has a right to enjoy the fruits of one's labors.
It is also this concept of property--which focuses on the substantive relationship between a person and the thing that he has labored upon or created--that explains and justifies the protection of intellectual property rights, regardless whether these rights exist in tangible books or computer code. A person's right to control the disposition of his creation, and thereby enjoy the fruits--the profit--of his labors, is central to the legal definition and protection of property entitlements.57 As the New York Court of Appeals stated in 1856: "Property is the right of any person to possess, use, enjoy and dispose of a thing. . . . A man may be deprived of his property in a chattel, therefore, without its being seized or physically destroyed, or taken from his possession."58 In the context of tangible property rights, the courts have never demanded that a person be deprived physically of his property as a necessary prerequisite for finding a violation of property rights. Stealing the fruits of one's labors or indirectly interfering with the use of the property is sufficient; in other words, it is sufficient that one lose the ability to use, control or dispose of the values that one has created.59 It is this concept of property that explains why copyright is in fact property, rather than monopoly privileges meted out to authors at the leisure of the state's utility calculation."
So let's take a look at this. First, Mossoff says property is that which you "create" through your "labor". The concepts of labor and "creationism" permeate his analysis.
It would be harmless to merely recognize, to observe, that in homesteading a scarce (rivalrous) resource, one of course employs "labor". One homesteads an unowned resource by being the first to possess, use, emborder it, because these give the appropriator an objective link to the property, a better connection to it than any latecomer. It is not because one "owns" one's labor. This is a misleading metaphor. But it's okay to observe this, if one is clear in one's terms. Of course, "using" something or "acting" or "appropriating" an object is a type of "labor," so sure, labor is involved. Fine. But it does not imply that one has a right to anything one labors on. This would be taking the significance of labor out of context.
And as noted above, one does not really create new things--one only homesteads them (if unowned); or transforms them (if already owned) into more useful configurations. Productive effort can create wealth, that is, transform owned things into more-valuable things. But creation is not a source of rights or ownership; rather, creative production is what makes already-owned things more valuable. The uncareful over-reliance on the role of creation sloppily equates wealth (which is the result of human labor, creativity, productivity) with property.
To re-state: one has property rights in scarce resources that he homesteads. Nobody "creates" these things; someone appropriates them from their unowned state. It is commonly argued that you can acquire ownership of things by either finding, buying, or creating them. But in reality, creation is a false third category. And here, the IP proponent is elevating it as the main (or sole) way of acquiring ownership in things. As of course he has to, since, as Tibor Machan notes, ideal objects like poems are purely human-created things:
"the status of something as private property appears to hinge on its being in significant measure an intentional object--its status as a private owned entity has to do with in what mental relation is stands with an agent. But then it would seem that so called intellectual stuff is an even better candidate for qualifying as private property than is, say, a tree or mountain. Both of the latter only come to be related to human intentions, whereas a poem or novel cannot have their essential identity without having been intended (mentally created) by human beings."
But not only is creation the only, or main, source of ownership; it is not a source at all.
Back to Mossoff: note that in the second paragraph quoted, he subtly relies on the idea that labor is a source of rights, and that there are property rights not only in tangible objects, but in "value" one has "created" with one's labor. First, he writes that: "It is this concept of property [that it's the right to acquire, use, and dispose of the things that one has created through one's labort] that precipitated the virtual truism in American society that every person has a right to enjoy the fruits of one's labors". Well, what are the "fruits" of one's labors? There are literal fruits, like a tree producing fruits. Of course, if you own a tree and the land it's on, the fruit that falls from the tree is yours too; before it drops from the tree it's part of the tree that you own; you own the fruit after it falls off, just as you own both parts of your staff after you break it in two. There are also "civil fruits"--the profits or interest that you gain from investing capital you own. Or other "fruit" like milk of the cow you sell. But owning a resource (say, a cow) is sufficient to give you the right to benefit from its "fruits," since you own these too. You don't need to find a separate "right to own fruits"; it's implied in what it means to own something.
And say you want to make money by being paid to labor for someone. You could call the payment for doing the job "receiving the fruits of one's labor"--the fruit is the money you receive, in exchange for labor you perform. Now you certainly own your body, which is a scarce resource. But this is enough to allow you to make money by laboring: you control your body, so you withhold services until someone agrees to pay you for performing a given action.
So: recognizing the role of "labor" as part of acting to appropriate property in no way implies one is "entitled" to "whatever results" from that labor. Likewise, the fact that human creativity can create wealth--make owned things more valuable--in no way implies that "creation" is some kind of independent source of ownership of things. And the fact that we value the things we own, and that we enhance this value by improving or transforming our property, in no way implies that we have property rights in value as such.
So why, then, does Mossoff emphasize that we have the right to enjoy the fruits of our labors? Why does he imply that there is a separate, independent property right in "fruits" of "labor"--? After all, labor is not the source of rights; nor is there some separate homesteading of unowned fruits out there--the fruits are either yours already (because they were part of and came from a thing you owned), or they are given to you contractually (in exchange for you performing services with things you own). In neither case is there any reliance on some underlying labor-creationist-theory that you have a right to "own" any "thing" that you "create" with your "labor," much less any thing -- even intangible things--that "have" value (of course, things don't "have" a value; they are valued by certain people as demonstrated by their actions).
Well, he emphasizes labor and value and creation because that is what you have to do to claim rights in copyrights and patents. These things are not scarce resources that are homesteaded. No; they are simply mercantilist, state-granted monopoly privileges that give the holders claims on other people's already-owned property. And on what grounds? On the grounds that the holder thought of a way to use his own property--so he ought to be able to control everyone else's property in the same way. Clearly this is in stark opposition to the notion of homesteading, which is the true basis for property rights. But if you ignore the true nature of homesteading--that it is the assignment of property rights to those with an objective link to the scarce object in question so as to permit conflict-free interaction and use of scarce means--and emphasize "aspects" of homesteading--that it "involves" labor; that the results of productive effort "have value"; then you can just "by analogy" try to invent a new form of property right in "things that have value", that are naturally owned by--who else--the person who created them. After all, you have a right to things that "result from" your labor, right?
Note that Mossoff says,
"In the context of tangible property rights, the courts have never demanded that a person be deprived physically of his property as a necessary prerequisite for finding a violation of property rights. Stealing the fruits of one's labors or indirectly interfering with the use of the property is sufficient; in other words, it is sufficient that one lose the ability to use, control or dispose of the values that one has created."
Note the word values tossed in there, to allow him to find a way to say that failing to respect copyright is a type of "stealing" since it diminishes the "value" of the copyright to the user.
Mossoff also writes:
It is also this concept of property--which focuses on the substantive relationship between a person and the thing that he has labored upon or created--that explains and justifies the protection of intellectual property rights, regardless whether these rights exist in tangible books or computer code. A person's right to control the disposition of his creation, and thereby enjoy the fruits--the profit--of his labors, is central to the legal definition and protection of property entitlements.
Here he says that property has to do with a relationship between a person, and "the thing that he has labored upon or created". As if this is what homesteading is. And of course, you have to have the right to control the disposition of your property to enjoy its fruits. Well, let's think about this. In the case of tangible property, it is not because you "labored upon" it that you own it. In fact, if you labor upon someone else's property you do not own it. No: it is because (in the case of homesteaded property) you were its first user, giving you an objective link to it and a better claim than anyone else, who with respect to you is a late-comer (making their own claim, which also would have to be based on the idea of their link to it, which is their possession of it, inferior, since it came after yours, and contrary to their own presupposed prior-later distinction since of course they maintain a third-comer has no rights to it because they come later!). It is not because you "labored upon" it; it's because you did something to emborder it, to appropriate it. And it's not because you "created" it: you never create property: you just transform it. To transform something, you have to own it already, or at least, you transform unowned property thereby appropriating it. But you are not creating it. If you "create" wealth, you do not own the wealth; it's just an aspect of property you do own. If you create products using your own raw materials, you creation of products is not a separate source of ownership; you own the products not because you created them, but because they are just transformed property that you already owned. If your cow gives milk you own the milk because you already owned the cow, and the stuff that was inside her.
So Mossoff is wrong to imply that homesteading of normal (scarce, rivalrous) property rests on the notion that, or implies that, creation is a source of property rights, or even "laboring upon". Labor only serves to generate property rights if it's labor that amounts to a type of first use or possession of an unowned scarce resource. This in no way implies that if you think of a pattern or a way to use your property, that you now gain property rights in other people's already-homesteaded property. The analogy totally breaks down.
As to the comment, "A person's right to control the disposition of his creation, and thereby enjoy the fruits--the profit--of his labors, is central to the legal definition and protection of property entitlements." Well--for tangible property, the exclusive right to control the scarce resource homesteaded is in itself fully sufficient to "enjoy the fruits of" it--just as ownership of a home is sufficient to have "free speech" on it. Just as there is no separate right to free speech (if there were, you could speak on others' property without their consent); not, it's just a consequence of, or derivative of, or an aspect of, the fundamental right to control your property (including your body). Likewise, there need be no separate "right to enjoy the fruits of" your "things" that "result from your labor." This is a stilted way of putting it to reverse engineer the result that the IP advocates want. Giving the first user of a scarce resource the right to control it is all the property rights do, and need do. Given this right to control, you can "enjoy its fruits". There is no separate right to enjoy fruits--certainly not as open-ended as "enjoy the fruits of" any thing (whether scarce or not) that you "labored upon to give value to" or "created". None of this follows at all.
The entire case for copyright and patent based on "creationism" is nothing but a house of cards, constructed on confused understanding about the true nature of individual property rights. The labor-value-creationism myth has wormed its way through libertarian property rights theory and tainted it. It needs to be ripped out.
One final comment. The conclusion to Mossoff's paper states:
The past evolution of copyright law is notable because we are in the midst of another revolution today--the digital revolution. The impact of the digital revolution is as far reaching as was the industrial revolution of the nineteenth century, but it is important to realize that we are still in the midst of this revolution. It is not yet clear how and in what ways intellectual property rights should be best protected in the new digital domain, but the evolution of intellectual property rights is as necessary today as it was during the industrial revolution. It would be wrong to condemn outright our early attempts to define copyright entitlements for digital content, just as it would have been wrong to condemn the early attempts at defining trademarks or the evolving rules of copyright at the end of the nineteenth century. A legal doctrine in transition may be criticized for its various fits and starts, but the difficulties inherent in the transition are not sufficient grounds for junking the doctrine itself.
Fits and starts!? Some growing pains we are going through. It's bizarre any advocate of liberty could ever advocate the nightmare that is copyright.
Appendix: On the dangers of metaphors in scientific discourse
The following observations and quotes assembled from previous email and other conversations re same:
See the following, from Mark Thornton's The "Market" for Academic Research: this is a great quote; I think it would be a useful project to collect various comments on dangers of the use of metaphors into one place:
"For it would be an absurd undertaking to banish from the language of economic theory every manner of speaking that is not literally correct; it would be sheer pedantry to proscribe every figure of speech, particularly since we could not say the hundredth part of what we have to say, if we refused ever to take recourse to a metaphor. One requirement is essential, that economic theory avoid the error of confusing a practical habit, indulged in for the sake of expediency, with scientific truth."
--Eugen von Böhm-Bawerk, (1881), "Whether legal rights and relationships are economic goods." In H. Sennholz (Ed.), Shorter classics of Böhm-Bawerk, Volume I. Spring Mills, PA: Libertarian Press, 1962, p. 135. As Mark noted on a list: "Bohm Bawerk took up this issue [of misuse of metahpors] in Shorter Classics. I quote him at the opening of this paper (attached). The whole public choice agenda is based on the use of market methaphors for government institutions."
I've long noticed the over- and mis-use of metaphors. For example Paterson or Lane's use of "energy circuits" .... very scientistic. Similar to the way people talk about the "momentum" of a football game or the "energy" of a crowd or a crystal.
Or in the idea of mixing or owning labor, or owning ideas, or in the idea that prices "convey knowledge".
Also, as I noted elsewhere: "Mixing labor" is horribly misleading and a sloppy metaphor: if I turn a piece of land into a farm, did I *actually* mix my labor? I mean, is there like an amount of labor "in" the soil? It's really sloppy and imprecise.
I've always liked this observation of Huelsmann's:
Only in a metaphorical sense could one say that prices reflect or contain information on present conditions. ...
... It is asserted that prices communicate abridged relevant information. This, however, is only a metaphorical expression.
It is not prices that coordinate the actions of sellers and buyers of tin; prices are the outcome of (coordinated) action, not its coordinators. It is property, rather than knowledge, that coordinates the separate actions of different people. The terms coordination and communication rather obfuscate than adequately express this fact. This is another example of the dangers linked to the use of metaphors in scientific discourse.
From p. 29 of this article
"The term "consumers' sovereignty" is a typical example of the abuse, in economics, of a term . . . appropriate only to the political realm and is thus an illustration of the dangers of the application of metaphors taken from other disciplines. "Sovereignty" is the quality of ultimate political power; it is the power resting on the use of violence. In a purely free society, each individual is sovereign over his own person and property, and it is therefore this self-sovereignty which obtains on the free market. No one is "sovereign" over anyone else's actions or exchanges. Since the consumers do not have the power to coerce producers into various occupations and work, the former are not "sovereign" over the latter."
"Mises rightly criticised treating imaginary things (collectives, analogies, metaphors, etc.) as real and warns us to be very cautious when using fictitious auxiliary constructs to explain things"
Also, from others' comments about this on an email discussion list:
"Ironically, in his memoirs Mises accuses Bohm-Bawerk (in their dispute over Cantillon effects) of being led astray by the idea of "friction" and other metaphors from the physical sciences."
On a thread, I had written: "Right, and this is the danger of metaphors (BTW I wonder if anyone has examined this issue in any detail--? The dangers overuse of metaphors in scientific discourse?)." Roderick Long replied: "Right, such a study might be called "How Scientific Discourse is Being Savagely Bitten to Death by Rabid Metaphors." Tom DiLorenzo's reply:
"A fun paper (Vedran, are you listening?) would be to ridicule the metaphors in macroeconomics with all the talk of "injections," "Leakages," shocks," etc. I would start by comparing it all to the movie Young Frankenstein, where they tried to "shock" the monster to life, just as "infusions" of money or tax dollars supposedly shock the economy out of a recession. Then when shock therapy didn't work, Gene Wilder pulled out a giant needle and "injected" the monster, just as money is supposedly injected into the economy by the Fed. The possibilities are endless."
In this connection, I would put in a strong plug for Peter Lewin's paper: "Methods and Metaphors in Capital Theory." (Advances in Austrian Economics, vol. 2B).
I might add that important parts of Mises' "Ultimate Foundations... " and "Theory and History" deal with the issue of inapt and misleading metaphors in economic science.
See also The Problem with "Fraud": Fraud, Threat, and Contract Breach as Types of Aggression, discussing problems resulting from uncareful use of concepts like "fraud" in libertarian reasoning.