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Friday, August 31, 2012

(Intellectual) Property is Theft!

by Benny Mattis

If I were asked to answer the following question: What is slavery?  and I should answer in one word, It is murder!, my meaning would be understood at once.  No extended argument would be required...Why, then, to this other question: What is property? may I not likewise answer, It is robbery!,  without the certainty of being misunderstood; the second proposition being no other than a transformation of the first?
-Pierre-Joseph Proudhon, What is Property?


Propertarian and "right-libertarian" philosophy is generally based on one or both of two important principles.  The first of these, the principle of self-ownership, is the idea that an individual person has exclusive rights of control over their own body and the product of their labor.  John Locke, widely considered the father of classical liberalism and an undeniable influence in the American Revolution, is often credited with formalizing this theory of property.  He explains in his Second Treaty on Civil Government: "As much as a man tills, plants, improves, cultivates, and can use the product of, so much is his property."  Of course, there are multiple interpretations as to what what constitutes "improving" and "using the product," but the general ideas of self-ownership, and ownership of the fruits of one's labor, were and are incredibly important for any discussion of what property laws ought to be based on.

The second principle often employed in capitalist rhetoric, the principle of non-aggression, condemns all initiation of force or fraud against the person or property of another, even if such force is deemed "for the greater good."  From these two principles come the right-libertarian condemnation of the state, which is funded through taxation (i.e., the initiation of force against private citizens).  Usually, these principles go hand in hand--ownership is secured through the prevention of aggression/theft, and the prevention of aggression/theft in turn is justified through the principle of self-ownership.

However, patents (and copyrights) pose a problem for property.

Intellectual property introduces a contradiction into the nice interplay between the non-aggression principle and the principle of self-ownership, because it can only be secured through the initiation of force and the flagrant violation of physical property rights.  Think about the Apple-Samsung situation: viewed through the lens of physical property rights, Samsung has done nothing in aggression against Apple.  Apple, on the other hand, is violating Samsung's property rights by dictating how they can use their property ("don't cut your plastic in this special shape," etc.) as well as stealing from them outright. On the other hand, viewed through the lens of intellectual property, Samsung has violated Apple's self-ownership; ownership implies exclusivity to Apple.  Yet, this self-ownership can only be secured through coercive state intervention and forced re-distribution of Samsung's resources.  We have two types of property--physical and intellectual--that cannot coexist.

***

In An Enquiry Concerning the Principles of Morals, David Hume considers whether property would be necessary or even justifiable in a world where material scarcity were not a problem:
It seems clear that in such a happy state every other social virtue would flourish and be increased tenfold; but the cautious, jealous virtue of justice would never once have been dreamed of.  What point would there be in dividing up goods, when everyone already has more than enough?  Why institute property when there can't possibly be any harm in not doing so?  Why call this object 'mine' when just by stretching out my hand I could get another one that is like it and equally valuable?  In this state of affairs, justice would be totally useless; it would be an idle ceremonial, having no place in the list of virtues.
This seems to be the case with intellectual property; since it can be copied and re-copied indefinitely, "dividing up" information is an "idle ceremonial."

There is, however, a component of IP that cannot be shared through copying, and that is authorship.  Radiohead, one of my favorite bands, released their album In Rainbows for free on the internet, and information-copying made it available to everyone; Radiohead's authorship of the songs, however, could never be shared in such a way.  On the contrary, if everyone claimed authorship of the album, not even Radiohead would get the benefits of authorship (fame, pay for performances, etc.); sharing information multiplies wealth, but attempting to share a claim to authorship only renders such a title meaningless.  Sometimes, the claim to authorship ought to be meaningless; this might be the case with a community-driven project where nobody really put in any more work than anyone else.  But it is clear that, for better or worse, authorship is not unaffected by scarcity in the same way that authored information is.

This is why I think that intellectual property should be not abolished, but separated from physical property.  I think a sort of property dualism is appropriate:  physical property (a phone) traded with physical property (money), and intellectual property (a "stolen" design) traded with intellectual property (an acknowledgment on Samsung's part that they did, in fact, use Apple's ideas in their technology).  Likewise, intellectual theft (attempting to claim authorship of In Rainbows) might be punished through intellectual restitution (a public announcement that I am, in fact, a fraud, and that Radiohead are the true authors of the album).

"But wait!" cry the defenders of IP.  "That design took physical resources to make!"  But this objection misses the point: the design may have taken physical resources to discover, but, in using the design, other people are not in any way taking more physical resources than what has already been spent.  Thom Yorke, in writing songs for Radiohead, keeps the fruits of all the physical labor he put into writing his songs, including the neurological make-up that results from musical practice and songwriting. This physical and neurological being, as opposed to the information instantiated in it, is what required the consumption of physical resources to construct.

Of course, the value of this physical and neurological being is not to be underestimated or dismissed with a "You didn't build that."  A musical mind is necessary to understand, remix, and create music, and there is nothing wrong with paying an artist to use their talents in different ways (public performance, commissions, etc.).  This applies to all artists, including the professional engineers and researchers at Apple Inc.

2 comments:

  1. I don't think you've given the role that IP plays as an incentive for innovation enough thought (then again this is a blog and there is a high rate of return for brevity).

    Let's take the hardest case against IP: pharmaceuticals. Billions are spent each year developing new ones and the end result is a recipe that any company can then adapt production towards.

    If companies are going to deploy the massive amount of R&D necessary to come up with new drugs, then they must be able to at least recoup their losses, otherwise the decision would not be profitable. Can companies expect to do so in a legal environment without IP or will other companies quickly create generic substitutes that cut their profits into the red? Or is the economic argument not even a proper mode of reasoning about IP? I don't see how a public notice that Bayer stole a new antibiotic, which are notoriously difficult to research yet are in very high demand, from Pfizer to be that much of a disincentive not to rely on creating cheap knock-offs of other company's research.

    Myself, I err on the cautious side about IP because of that (even though historical evidence with the birth of the pharmaceutical industry and its own massive R&D spending in 19th century Germany before IP may be a good supporting case for the possibility of large-scale research sans IP). However, what I do know is that no discussion of IP can be complete without at least mentioning pharmaceuticals.

    Sometimes property rights are not just about who owns scarce means of production, but about setting up the right incentives for desired actions.

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  2. This blog was intended primarily to address the arguments from property for IP, but I'm skeptical of the utilitarian arguments as well.

    Assume IP as we know it, and think of Bayer's position as Pfizer is designing this miracle drug. Pfizer has been working on research for a year. If Bayer starts research now, there is a good chance that Pfizer might beat them to the finished product, in which case Bayer's research will have been wasted and their profits pushed into the red (competing with Pfizer, who will be collecting dues with careful control of "their" information). Pfizer is dis-incentivized to cooperate with Bayer, because doing it solo will guarantee exclusive ownership for Pfizer when the drug is finished. So, IP has dis-incentivized research for Bayer, and removed the threat of competition for Pfizer.

    I imagine that if research were not rewarded directly through state intervention, people would still find some other way to pay for it, simply because research is so valuable. There are, for example, charity organizations like the X Prize (http://www.xprize.org/about/who-we-are). But I imagine that the people who benefit from research in certain fields might organize themselves into voluntary governing organizations, to coordinate research collectively. Not unlike Web databases like Stack Overflow (http://stackoverflow.com/).

    In any case, IP is still theft, even if it's justifiable theft. It seems to me like more of specialized type of retroactive research subsidy--does the increased sensitivity to market demand really make it so much better than simple public funding for public information?

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