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.
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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.
