In Part 1 of my critique of Robert Levine’s Salon.com interview I noted that online companies are simply the medium between producer and consumer. I cited examples from history where IP laws restricted innovation, and cases where their absence allowed for more creation, not less. In this essay I hope to refute the claim that IP is a legitimate form of property and shed light on more of its history.
Over time, property rights emerged as a way of mitigating conflict over scarce goods. If there is a finite amount of something, say pizzas, it is possible that at some point, conflict over the use of a pie may arise. Establishing property rights, and institutions to enforce those rights and arbitrate disputes, tends to reduce conflict. However, if there are an infinite number of pizzas, or such a device exists to infinitely reproduce the pies, then the problem of scarcity disappears, along with the need for property rights.
Hans Hermann-Hoppe explains this concept by using the Garden of Eden as an example, where everything is in abundance. However, “outside the Garden of Eden, in the realm of scarcity, there must be rules that regulate not only the use of [property] but also of everything scarce so that all possible conflicts can be ruled out (emphasis in original).”
Intellectual Property is essentially information. Whether it is the particular design plans to an engine, the arrangement of musical notes, or the pixels of a digital image is immaterial. None of these meet the scarcity requirement to necessitate property rights. Each can be infinitely reproduced, without denying their use by the original owner.
Thus, IP should not have the protection against theft that scarce property enjoys. Theft is defined specifically as “the felonious taking and removing of personal property with intent to deprive the rightful owner of it (emphasis added).” Theft is not therefore a synonym for duplicate.
What about the profits from IP that are “lost” by someone copying a work and selling it or giving it away? We can’t know a priori that such profits would be realized absent copying, so we can’t know for sure that any loss was indeed incurred. What the “pirating” shows is that someone was unwilling to pay the artificially high “market” price. The true market price in this case is what someone was willing to pay for a copy.
In fact, the use of “pirating” to describe copying is ironic given the history of the word patent. Stephan Kinsella, an IP lawyer himself, has found that the word patent was used by governments to authorize actual piracy. A letter of patent was written to a privateer, who was then granted special permission to commit real piracy, you know, attack foreign ships, kill the crew, seize their property, etc.
In the course of the interview Levine quotes Supreme Court Justice Sandra Day O’Connor regarding copyright and free speech. “The framers intended copyright itself to be the engine of free expression,” she said. An interesting argument indeed, considering the actual wording from Article I, Section 8 reads: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]”
I didn’t read anywhere in that clause anything about free speech. And if somehow it could be gleaned from that, why would the Anti-Federalists have insisted on the 1st Amendment’s free expression clause? The history of copyright laws is rooted not only in protection for guilds, but also in censorship. So to suggest that copyrights are intended to secure rights to free expression could only be described as Orwellian.
IP laws, rather than securing property rights, in fact encroach on them. If I assert “rights” to my writing and you choose to copy it, either for profit or personal use, than I am projecting a certain amount of control over your property. By legally prohibiting you from using your computer and printer, or pen and paper, I have appropriated in some way, your rights to property. For its not only the mere possession of property, but also the free use of it, that make property of any value.
There is no inherent right to IP, as it does not meet the requirement for legitimate property. For some, the consequences of abolishing IP would be failure and poverty, but a system based on legitimate property rights and freedom is far superior to any system designed by the politically well connected. Everything else they touch is soured and corrupt, why should we expect this to be pure? The alternative to the present IP legal framework would simply be freedom: freedom to emulate, to improve, and to share.