In Defense of Intellectual Property

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Libertarianism can be different things to different people. Trying to define it, or characterize it, will leave some libertarians at odds with one another. What follows will isolate me from most libertarians. It is a defense of intellectual property rights (IPR) based on the thesis that there is no normative distinction between IPR and real property rights (RPR). I will use Butler Shaffer's short polemic for the Mises Institute, "A Libertarian Critique of Intellectual Property," as my primary foil as it encapsulates many of the arguments against IPR that libertarian thinkers embrace.

Where Shaffer ends I will begin. At the end of his polemic he boils down his rejection of IPR on the ground that a libertarian cannot endorse a right that is created and enforced by the state. The premise that IPR are created by the state is false, while the premise that IPR should be rejected because they are enforced by the state is unpersuasive. This essay will unfold in three parts, with the first demonstrating why Shaffer’s first premise is false, the second section demonstrating why his second premise is unpersuasive, and the third section confronting other objections to IPR.

Section I: Intellectual Property Rights are not created by the state

The only means through which one may defend RP, and not IP, is to say that the manner in which man exerts ownership over RP has nothing to do with his mind. RP and IP are both products of the same process, even though they take different forms. It doesn’t require a great imagination to see this, but because it is an unfamiliar formulation I will elaborate by means of a familiar source: John Locke. A Lockean justification of private property provides a sound defense of IPR by building through a property of conscience.

Unless we assume that man’s arms and legs move without cognition, man’s labor is a product of his mind.

In chapter 5 of his Second Treatise on Government Locke gives his seminal account of property rights. It runs thus: man alone is in possession of himself, and through his drive and ingenuity he extends his dominion beyond himself. Man is in possession of himself because no other individual gave him his will, conscience, or abilities; thus, no one else can exert dominion over him except that to which he consents.

Man takes possession of property when it lies in common and he mixes his labor with it. Simply put, if there is unowned property available, and someone takes it out of its natural state by mixing his labor with it, that property becomes his so long as there is enough left over for others to sustain themselves, for that man has no right to deprive others of providing for themselves. An acorn becomes mine if it is lying on the ground or staying in the tree, and I take it out of its natural state by mixing my labor with it — plucking it from the tree or picking it up from the ground. The mixing of labor makes it mine because that acorn is no longer what it had been. My labor made it something that it had not previously been, by virtue of my efforts. This means that nobody else can stake a claim to it without depriving me of the fruits (or nuts, in this case) of my labor.

The Lockean argument gets a bit more complicated, but in terms of how common property becomes private, this is it. That is why Locke and his intellectual heirs consider private property paramount for the preservation of liberty, for there is no real distinction between man and his property, since property is nothing more than the extension and physical manifestation of a man's liberty.

As it relates to IP, a Lockean position is easy to extract. Unless we assume that man’s arms and legs move without cognition, man’s labor is a product of his mind. Without cognition I would not cut down trees and build a shelter, nor would I engage in any productive activity that would lead to property ownership. Whether it’s writing a book or building a widget, property originates from man’s will and ability to produce.

If the process by which IP is protected is conducted poorly, that is simply the government doing a necessary job poorly and not evidence that the job is unnecessary.

James Madison has a more expansive, and sometimes confusing, articulation of property rights, but he understands them as Locke does. Madison uses property to describe what man possesses within himself (what Locke would call will or labor), and those external objects that become man's possessions through the mixing of himself with them (land, hogs, etc.). This formulation is articulated by Madison in a 1792 essay entitled "Property." Madison writes:

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions. Where there is an excess of liberty, the effect is the same, tho' from an opposite cause. Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.

We may conclude that protecting property, broadly understood, is the sole object of government for both Madison and Locke.

Somebody stealing my IP is the same as someone stealing my RP, particularly if IP is what I use to make a living. If the market for my book is 10,000 people, then someone who resells my book, or makes 10,000 copies it and sells them without my permission, has shrunk the market for me, the originator and creator of the book. This is no different from someone breaking into my shop and stealing 10,000 widgets and selling them on the black market when the market for the widget is 10,000 people. In either instance my ability to make a living through my labor has been denied by someone who illegitimately used the product of my labor without my consent. In simple terms: my right to life, liberty, and property has been denied. Nothing gives someone else the right to capitalize on my labor without my consent, for without my labor that product would not be in existence. These considerations give me sole ownership of the property if we follow the Lockean formulation of property rights.

Section II: Rights and the State

It is not a defect of IP that it needs the government to enforce it; it is the fault of libertarians if they cannot accommodate a necessary and just idea, such as IP, without government enforcement. If libertarians reject IP on the ground that it needs government to enforce it, then we have not evaluated IP on its merits but merely through a heuristic defined by ideology rather than logic.

If the process by which IP is protected is conducted poorly, that is simply the government doing a necessary job poorly and not evidence that the job is unnecessary. The focus should be on how to correct what’s wrong, not how to eradicate protections for property. Government is legitimate when it protects life, liberty, and property, and illegitimate when it does not. That does not mean that life, liberty, and property are illegitimate ends when the government does a poor job protecting them. To reject the ends because the means are faulty is a logical error.

Furthermore, libertarians who embrace RP cannot reject IP on enforcement grounds, for RP also requires government enforcement. Perhaps in idealized settings, or at least in smaller, more communal settings than the current nation-state model, RP would not require the government for protection. But we don’t live in those scenarios and must therefore recognize the reality of the situation. We can certainly debate the degree to which the government protects RP well, the means through which it does so, and the externalities associated with government protection of RP, but I don’t think anyone would say that if the police in every city were shuttered up tomorrow, crime would be reduced significantly the following day. In today’s reality, RP requires government protection just as IP does. Thus, unless one is willing to reject RP on these grounds one cannot also reject IP for the same reason.

Section III: Remaining Objections and Rebuttals

Shaffer objects to those who say that IPR promote creativity by protecting the products of one’s creative endeavors. It is true that IPR do not make me more creative, but IPR protection may provide incentives for creative activities rather than other activities that would be more profitable. If I am a musician who is unable to profit from my music because others can steal my ideas, I will have to find another job. This doesn’t prevent me from being creative, but it does reduce my incentive to do so and it impedes my ability to dedicate the necessary time to creative endeavor.

Shaffer uses the Roman aqueducts and the Egyptian pyramids as examples of human achievements in ingenuity and creativity that occurred without IPR. What Shaffer fails to acknowledge is that these were state-sponsored projects that would not have been realized without financing and organization from a large state. Similarly, while Michelangelo did not require IPR to produce his art he did require a wealthy patronage to support him and his products financially. IPR is one reason we no longer have to rely upon a patronage system in the arts and literature.

We must not deny producers security in their life, liberty, and property for fear that the authority we must rely upon to do so may turn against it.

Shaffer endorses the claim by Paul Feyerabend that “science is an essentially anarchistic enterprise” to demonstrate that an open exchange of ideas is beneficial for scientific and artistic achievement. But the passage from Feyerabend goes on to stipulate that “theoretically anarchism is more humanitarian and more likely to encourage progress than its law-and-order alternatives.” Shaffer conveniently ignores the operative term “theoretically” and thus fails to explore the reality of our world and defaults to the theoretical without acknowledging having done so. Shaffer, and all those who endorse stripping producers of their ownership rights, should recognize that producers have bills to pay and those who steal their products deprive them of their ability to provide for themselves through the outcomes of their labor. Moreover, thieves do exist, and having a means to guard against them is necessary albeit unfortunate.

Conclusion

In practical and theoretical terms there is no meaningful distinction between real property and intellectual property. If libertarians accept government protections for real property then they must too accept them for intellectual property if consistency is to be maintained.

I am sympathetic to the concern that when we ask the government to protect us it enfeebles us potentially and opens the door for the government to inch into other areas of our lives. But, the potential does not have to be realized if we do not permit it. It is possible to restrain and confine the government to those means and ends that we think most appropriate. Thus, we must not deny producers security in their life, liberty, and property for fear that the authority we must rely upon to do so may turn against it. We must instead opt for just government rather than reject it outright until such a time comes that we live in a world of entirely honest men and women.

With the permission of the author, a reply to this essay has been invited from Wayland Hunter; it is available here.




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Comments

Visitor

Think about what you are saying in the claim that intellectual property rights are fundamental rather than a derivative created by government. It is saying that if there were no government, the right would still exist -- meaning that if someone violated you intellectual property right, the thing to do would be to just go on over to their house and beat them up, or kill them.

This shows that proper government is desirable, and that it should recognize intellectual property.

Luther Jett

Thank you for this thought-provoking commentary. Here is my question:

Two people, living on separate continents, each conceive of a new and humane way to trap mice. It happens that their ideas are almost identical.

One person sketches his idea on a piece of paper, and then loses interest, doing nothing further with it.

The other person, however, constructs a prototype, secures financial backing, and begins to produce his "better mousetrap". Needless to say, many people purchase his product.

Does it matter whose "intellectual property" the idea was?

Kyle Scott

Yes, it does. The person who put forth the effort should be rewarded for it. I fail to see any argument that would justify someone ripping off the better mouse trap idea and selling it as one's own without adequate compensation being paid to the originator. If the lazy or careless inventor does not capitalize on his/her idea then that person should not be rewarded financially since s/he did not take the necessary steps to monetize it.

Luther Jett

I agree with you here. So, if it would make no sense for the inventor who failed to act on his idea to then claim it as his intellectual property, then how is the concept of intellectual property helpful at all?

Visitor

Patents, copyrights and trademarks are derivative rights granted under the civil law, subject to the rules established by the law. These rights do not exist in nature like fundamental individual rights. Therefore, whatever rules apply for establishing one's patent, copyright or trademark are what one has to live by. It is fair to the extent that the law itself is rational.

Luther Jett

I'm not sure how this response is related to my question, or if it is at all.

Perhaps i am missing something and you can clarify.

Visitor

The subject of anarchism was broached in this essay, as well as the previous one by Mr. Cox, and I want to point out an angle on the matter that I have not yet seen brought up anywhere.

In philosophy one cannot, and should not attempt to, prove a negative; with the burden of proof always being on "he who asserts the positive". In the discussion between the two points of view it is the anarchist position that asserts the negative and, not only need not, but cannot, be proven. More to the point, it is the pro government side which asserts the positive and is under the burden of proving the need or desirability of some kind of government, and what powers that government should consist of. Almost everyone believes in a government but it's unfortunate that so many of those people don't take that responsibility seriously.

Stephen Cox

Thank you for your comment on my writing as well as on that of Kyle Scott. There may be a misunderstanding about the meaning and significance of “proving a negative.” If someone accuses me of being a crook, and I reply, “What’s your evidence?”, and he replies, “Prove you’re not a crook,” that’s an improper demand, because he’s presented no evidence for his own claim. I therefore have no need to “prove the negative.” But if someone says, “There should be no government,” that’s a proposition like any other proposition, and the anarchist may properly be asked to argue for it, just as someone may be asked to argue for the proposition, “There should be no anarchist society.”

In fact, there are plenty of “negatives” that can be proven. I can prove I wasn’t in Tucson last night. I can prove that I don’t have a million dollars in my savings account. I can prove that I’m not General Lee. I can do these things as easily as I can prove that I love responses, critical or approving, to what I write. And I agree that people in favor of limited government, just as well as people in favor of anarchism, should take their argumentative responsibilities more seriously.

With repeated thanks,
Stephen Cox

Visitor

My observation that anarchism is a "negative" that cannot be proven may be a bit more nuanced than one may first realize. I mean it in the sense that the pro government champion need only point to a single instance of human interaction requiring a government to have "proven" his position, where the anarchist is in the exact opposite position. To prove anarchism would require an infinite list of proven positives (examples of human interaction NOT needing a government) - just as proving that you were not a crook would require the same infinite list of positives (actions, whereabouts, intentions, etc., on your part).

On the other hand proving that you weren't in
Tucson last night would actually involve proving a finite number of alternate POSITIVE facts which eliminate the possibility of Tucson -- which CAN be done. Your other examples of negatives proven don't really seem to be the "philosophical negatives" I was talking about.

The above assumes that we do not accept the existing circular type arguments for anarchism as proof. After all, if anarchism were a proven case I, myself, would gladly be one.

Kyle Scott

I'm not sure one would have to go through all the hoops you are assuming to prove anarchy as a worthwhile endeavor. But, the default position is government because that is all anyone within the previous several generations--for the most part--knows. Anarchists must prove that the status quo is in need of revision. And that doesn't seem like too tall of an order empirically or normatively. If I've misunderstood please let me know.

Thanks for the comments.

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