IP Anyone?

There is a debate afoot now about whether one ever owns the likes of a novel, poem, computer game, song, arrangement or similar “intellectual” items. Some argue, to quote the skeptic, Professor Tom Bell of Chapman University’s School of Law, “Copyrights and patents function as a federal welfare program of sorts of creators,” while others, such as James V. DeLong of the Competitive Enterprise Institute, hold that “It is difficult to see why intellectual property should be regarded as fundamentally different from physical property.” I want to suggest a way to come to terms with this dispute in this brief essay and offer a possible resolution.

A major issue that faces one who wishes to reach a sensible understanding of intellectual property is just what “intellectual” serves to distinguish among what surrounds us in the world and how that contrasts with other kinds and types of possible property. What quality does “intellectual” point to about something? In my list, above, I am assuming that whatever is an invention or creation of the human mind amounts to potential IP, while others would argue that nothing intellectual in fact can constitute property, let alone private property. But this is merely to start things off, in need of clarification and analysis.

Some have proposed that the major element distinguishing intellectual from other property is that it is supposed to be intangible. So, for example, home or car or land parcels are tangible, capable of being brought into contact with our senses. However, a musical score or arrangement or a romance novel is supposed to be intangible – such a thing cannot be touched, felt or otherwise brought into contact with our sensory organs. Yet an immediate problem this attempt to distinguish intellectual property is that there are tangible aspects to inventions, and there are intangible aspects to these other items that are supposedly all tangible. A home is not just some raw stuff but a building that is the result of a combination of ideas, some of them inventions. Even land isn’t own exactly as it occurs in the wild but is configured by the more or less elaborate design work of landscapers. The same with whatever so called tangible items that function is property. A watch is not just some metal, mineral, glass and such assembled randomly but some assembly of such materials designed to show time and otherwise be appealing as well. In turn, a novel, song or computer game is also a combination of tangible and intangible stuff – the paper, typewriter or pen and the lead or ink with which the novel is written – only the author, and only for a little while, encounters the novel in intangible form after which the novel becomes an often very tangible manuscript.

The tangible/intangible distinction is not a good one for what can and cannot be owned and, thus, treated as distinctive enough to be related to owners. Indeed, the distinction seems to derive from a more fundamental one, in the realm of philosophy and its basic branch, metaphysics. In a dualist world reality would come in either a material or a spiritual rendition. Our bodies, for example, are material objects, whereas our minds or souls are spiritual or at least immaterial ones.

This goes back to Plato’s division of reality into the two realms, actual and ideal, although in Plato particular instances of poems or novels belong to the actual realm. A less sophisticated version of dualism, however, suggests the kind of division that’s hinted at through the tangible-intangible distinction. In nature we may have physical things as well as stuff that lacks any physical component, say our minds or ideas. Yet much that isn’t strictly and simply physical is intimately connected with what is, such as our minds (to our brains) and ideas (to the medium in which they are expressed).

So, the tangible versus intangible distinction does not seem to enable us to capture the distinguishing aspect of intellectual property. What other candidates might there be?

One candidate is that unless government or some other force bearing agency bans the supply of some item of intellectual property, there is never any scarcity in that supply.

There is certainly something at least initially plausible about this view. What is tangible is more subject to delimitation and capable of being controlled by an owner than something that is intangible. A car or dresser is such a tangible item of property, whereas a novel or musical composition tends to be fuzzy or less than distinct. One cannot grab a hold of a portion of a novel, such as one of its characters, as one can of a portion of a house, say a dresser.

Yet intellectual property isn’t entirely intangible, either. Consider that a musical composition, on its face, fits the bill of being intangible, yet as it appears, mainly in a performance or on a recording, it takes on tangible form. Consider, also, a design, say of a Fossil watch. It is manifest as the watch’s shape, color, and so on. Or, again, how about a poem or musical arrangement? Both usually make their appearance in tangible form, such as the marks in a book or the distinctive style of the sounds made by a band. These may be different from a rock, dresser, top soil or building but they aren’t exactly ghosts or spirits, either.

It might also appear that the theological division between the natural and supernatural mirrors the tangible-intangible division but that, too, is misleading since no one who embraces that division would classify a poem or novel as supernatural. Thus it seems that there isn’t much hope in the distinction some critics of intellectual property invoke. The tangible-intangible distinction seems to be independent of the usual types of ontological dualism and so the case against intellectual property, then, seems unfounded. If there is such a distinction, between ordinary and intellectual property, it would need to be made in terms of distinctions that occur in nature, without recourse to anything like the supernatural realm. Supposedly, then, in nature itself there are two fundamentally different types of beings, tangible and intangible ones. Is this right?

Again, it may seem at first inspection that it is. We have, say, a brick, on the one hand, and a poem, on the other. But we also have something very unlike a brick, for example, smoke or vapor or clouds. In either case it’s not a problem to identify and control the former, while the latter tend to be diffused and allusive. We also have liquids, which are not so easy to identify and control as bricks but more so than gases. Indeed, it seems that there is a continuum of kinds of beings, from the very dense ones to the more and more diffused ones, leading all the way to what appear to be pure ideas, such as poems or theater set designs.

So, when we consider the matter apart from some alleged basic distinction between tangible and intangible stuff, one that seems to rest on certain problematic philosophical theories, there does not appear to be any good reason to divide the world into tangible versus intangible things. Differentiation seems to be possible in numerous ways, on a continuum, not into two exclusive categories. Nor, again, does it seem to be the case that there is anything particularly intellectual about, say, cigarette smoke or pollutants, albeit they are very difficult to identify and control. They are, in other words, not intellectual beings, whatever those may be, yet neither are they straightforwardly tangible.

I would like to explore the possibility of a very different distinction, namely, one between what is untouched by human meaning and whatever is subject to it. For example, there would be no poems without intentions, decisions, deliberations and so forth. There would, however, be trees, rocks, fish or lakes. Is it the point of those who deny that intellectual property is possible that when people produce their intentional or deliberate objects, such as poems, novels, names, screenplays, designs, compositions, or arrangements, these things cannot be owned? But this is quite paradoxical.

The very idea of the right to private property is tied, in at least the classical liberal tradition – starting with William of Ockham, to John Locke and Ayn Rand – to human intention. It is the decision to mix one’s labor with nature that serves for Locke as the basis for just acquisition. In the case of such current champions of this basic individual right, such as James Sadowsky and Israel Kirzner, it is the first judgment made by someone to invest something with value that serves to make something an item of private property.

However all of this comes out in the end, one thing is certain: the status of something as property appears to hinge on it’s being in significant measure an intentional object. But then it would seem that so called intellectual stuff is a far better candidate for qualifying as private property than is, say, a tree or mountain. Both of the latter are only remotely related to human intentions, whereas a poem or novel cannot have their essential identity without having been intended (mentally created) by human beings.

Of course, in becoming owned, a tree and mountain does become subject to intentionality, as when someone decides to make use of such a thing for his or her purposes. And, conversely, even in the case of a poem, there are words that are as it were pre-existing and only their particular concatenation is a matter of intention.

I am not certain what the outcome should be from these and related reflections. They do suggest something that is part of both the ordinary and the so called “intellectual” property traditions, namely, that when human beings are agents of creation, when they make something on their own initiative – when they invest the world with their distinctive effort, they gain just possession of what they have produced. And if there is anything that they produce more completely than such items as poems or computer games, I do not know what it might be.

For me, then, the issue is this: When one designs and produces something novel that one has thought up, some gadget or machine or such, does one then own this design/product? And if someone else copies it, did they take something from the former against his or her will? If the answer is yes to the former, then I think the answer must be yes to the latter.

Whether the protection of one’s property occurs via this or that legal device — patent, contract, trademark, what have you — seems a secondary issue and detail. The first is ownership. Also, what one’s owning something one conceives and makes may mean for others who may be thinking up the same thing later is irrelevant, no less so than if one finds a piece of land and appropriates it and then later others, too, find it and would like to appropriate it but now may not.

Those, by the way, who complain that governments enforce patents and copyright laws, should realize that governments also enforce property rights in societies with governments. Governments in such societies are akin to body or security guards. Certainly, taxing others for this enforcement is unjust but that isn’t the essential idea behind the enforcement, not if one understands that copyright and patents could be protected without government, as well, just as other private property can be protected without government. But until it is government that protects — not establishes but protects — rights, it will also protect the right to intellectual property, if there be such a distinct thing in the first place. Taxation for such protection is irrelevant since taxation for the protection of other types of property is also beside the point.

Finally, that patents run out may be compared to the fact that ownership can cease with death, too. Of course, patents or trademarks or copyrights could all be reassigned from one to another owner, just as property in anything can be reassigned upon voluntary exchange or transfer. There is nothing necessarily odd about this, simply because the matter hasn’t developed very smoothly and consistently.

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Some reflections on the Right to Private Property

[Editor’s note: the following is an essay by Dr Tibor Machan, professor emeritus in the department of philosophy at Auburn University, and current holder of the R. C. Hoiles Chair of Business Ethics and Free Enterprise at the Argyros School of Business & Economics at Chapman University in Orange, California. He is also a research fellow at the Hoover Institution at Stanford University, an adjunct scholar at the Cato Institute, and a former adjunct faculty member of the Ludwig von Mises Institute. Machan is a syndicated and freelance columnist; author of more than one hundred scholarly papers and more than thirty books. We are extremely grateful for his generosity in regards to sharing this article.] 

Private Property Rights

The first step in the destruction of capitalism must be the abolition of the right to private property. Marx and Engels were clear about this in The Communist Manifesto. And many who sympathize with his idea of a socialist political economy agree. This is one reason many such thinkers and activists are champions of land use, eminent domain and related legal measures that render even the most personal of real property subject to extensive government control.

Of course, there are others who have argued that the right to private property is not only the basis for vigorous commerce but also the foundation of other individual rights, including freedom of speech, freedom of religion, and freedom of the press. It is arguably, in a somewhat roundabout way, the conceptual foundation of the right to freedom of political participation. Without some safe haven, one’s private domain, to return to after the vote has gone against one’s way, one will be vulnerable to the vindictiveness of the winners! And political advocacy without exclusive jurisdiction over one’s domain is difficult to imagine since advocacy, support and such political activities could not be carried out independently of other people’s permission.

Accordingly, it is no mere academic curiosity whether the idea of private property rights is well founded, sound, or just. Within American political and legal history there has been some confidence in the soundness of this principle but the basis of it has not gone unchallenged over the last two centuries. One need but consider the recent work by Liam Murphy and Thomas Nagel, The Myth of Ownership, Taxes and Justice (Oxford University Press, 2001) to appreciate how vulnerable is that confidence. Indeed, it is mostly members of the discipline of economics who see merit in the idea of private property, and then not as a feature of justice but more as a feature of an efficient system of resource allocation.

Yet, there is reason to think that the right to private property is a good idea, that everyone should be understood to have this right and that the institutions built upon it should be preserved. Indeed, they should be extended into areas where other ideas have held sway (for example, environmental public law). Let us consider this idea, then, and see whether we can be confident in its validity as a sound political-legal concept. 

From Mixing Labor to Rewarding Good Judgment Continue reading

Libertarian Countries and Libertarian Societies

by Fred Foldvary

Michael Lind in the 4 June 2012 salon.com in his article “The question libertarians just can’t answer,” asked, “Why are there no libertarian countries?”  One answer is simply that there are very few pure libertarians. But another answer is that most folks are libertarian enough that they establish libertarian societies, by which I mean not just organized clubs but also informal social gatherings and happenings.

The essential libertarian proposition is “live and let live.”  In a libertarian society, there are no restrictions on peaceful and honest human action.  Most people believe that it is morally wrong to coercively harm others, and they have been brought up to have some sympathy for others, so that they don’t want to hurt others.  Therefore most gatherings such as concerts, athletic events, and street traffic is peaceful. Thus much of the world operates in a libertarian way, without governmental direction. If you host a party in your house, you seldom need a government official there to keep the peace.

This social libertarianism has limits, as those who do not conform to cultural standards such as dress codes would encounter some intolerance.  Nevertheless, there is an almost universal agreement that assault and theft are evil, and a widespread aversion to such anti-social behavior.  When most folks are pro-social in their behavior, they demonstrate a wide and deep level of libertarianism.

Why does the US government impose restrictions such as prohibiting trade with Cuba?  Most Americans probably favor free trade with Cuba. But a minority special interest opposes trade with Cuba and has the political clout to stop it. So the basic reason why the US does not have full freedom is the inherent dysfunction of our system of selecting the chiefs of state. That system is mass democracy.  The failures of mass democracy have been documented and analyzed by the branch of economics called “public choice.”

The two basic reasons why there are no libertarian countries are:

1. Very few people understand or even know about the ethics, economics, and governance of pure liberty.  Pure freedom is not taught in schools, and it is not in the predominant culture.

2. Mass democracy enables special interests to skew policy that favors a few at the expense of the many.

However, the general concept of “freedom” and “liberty” is universally admired.  People have a genetic dislike of being controlled. But their moral views have been skewed by thinking their religious and cultural views are universal.  Ignorance is therefore the ultimate reason why libertarianism is not more widespread.

In another essay on 13 June 2013 Lind says, “Grow up, Libertarians!”  It shows that Lind does not know the meaning of the word “freedom.”  He writes that fighting evil requires limiting the “freedom of employers to buy and sell slaves.”  He has a physical definition of “freedom,” rather than the ethical meaning of there being no restrictions other than on coercive harm to others.  The ownership of a slave is not ethical freedom.

He then says that libertarians propose “the replacement of all taxes by a single regressive flat tax that would fall on low-income workers.” Anyone who advocates such as tax is not a pure libertarian. Lind confuses libertarianism with conservativism.

Michael Lind concludes with the statement, “libertarianism as a philosophy is superficial, juvenile nonsense.” Wow – perhaps he has never read freedom philosophers such as John Locke, John Stuart Mill, Herbert Spencer, and John Hospers. We need a serious explanation of why the basic libertarian idea – live and let live – is superficial nonsense.

There seems to be a simple explanation for Lind’s views on libertarianism – he simply does not understand it.

Equal self ownership

John Locke in his Second Treatise of Government had two premises for natural moral law: independence and equality. Independence means that we think and feel individually. Equality is about moral worth. There is no inherent master/slave status in human nature. There is no inherent superiority or inferiority among the races, sexes, or other categories of human beings. The moral default is therefore equality.

This is the concept recognized by Thomas Jefferson, when he wrote that all persons are created equal. This is the concept of equality before the law. Human equality is a premise for natural moral law, or the universal ethic.

When one person imposes coercive harm on another, he makes himself master, and the other is a slave. This is inconsistent with equality. The universal ethic begins with our subjective values, and then provides a moral production function resulting in moral rules for the universal ethic. One’s personal ethic or subjective value that being coercively harmed is evil gets passed as a universal ethic moral rule that coercive harm to others is evil. But mere offense becomes transformed as morally neutral, since one has not been invaded.

For the full treatment, see my book The Soul of Liberty.

Libertarianism and Republican Virtue

I am short on time and effort these days, so I apologize for bringing up my school readings on the blog. I have moved on from Locke’s Two Treatises to Montesquieu’s Spirit of the Laws.  This passage in particular has stood out to me so far:

When Sulla wanted to return liberty to Rome, it could no longer be accepted; Rome had but a weak remnant of virtue, and as it had ever less, instead of reawakening after Caesar, Tiberius […] Nero, and Domitian, it became ever more enslaved; all the blows were struck against tyrants, none against tyranny (pg. 22).

The decay of the American republic has been a worry of learned men since the agreement first took place.  My big question here is not so much about decay or liberty, but rather what virtue is.  I have some conception of it, but any sort of clarification would be great.

Montesquieu treats the desires and defenses of manufacturing, commerce, wealth, finance and luxury as the end of virtue and the beginnings of ambition, which leads to despotism and tyranny.

Given that most libertarians are also republicans (small “r”), how do we go about explaining that the freedom to pursue material goods is what is actually compatible with democratic government?  Was Montesquieu attacking a straw man?

Reading John Locke

My MLK Day will be spent finishing up an assigned reading project for a political theory course: John Locke’s Second Treatise of Government.  Most of the arguments seem pretty self-evident to me, a testament to the soundness of his writings.

But I know that there is much more to Locke than meets the undergraduate’s eye.  Does anybody out there have any thoughts (or tips on what to keep an eye out for) about John Locke’s musings on private property?  Are there any closet monarchists out there who believe that Locke was wrong about the beginnings of political society?

Happy MLK Day folks!