As I’ve mentioned previously, there’s a split in the libertarian movement right now, over the subject of “intellectual property”. Some are against it, some are for it. One of the voices in favor of intellectual property rights (specifically in the area of copyright) is a fellow named Alexander Baker. He writes a blog called Intellectual Space, subtitled: “The Libertarian Theory of Intangible Property”. Here’s his brief explanation of his own blog:
Intellectual Space is a praxeological examination of property rights for intangible objects. I initially began thinking that a rigorous philosophical approach would support the anti-IP position prevalent in libertarian circles. The opposite has occurred.
This is an interesting challenge for me. Alexander Baker appears to share many of the premises I have, yet he arrives at a very different conclusion from mine, and he insists that it is the result of a rigorous philosophical approach. This indicates to me that something, somewhere, has gone wrong. Perhaps we do not share certain as many premises as I thought. Perhaps our logic has gone wrong somewhere. Perhaps we’re just miscommunicating, and we do not truly differ in opinion. Whatever the case, there is a problem somewhere, and this long post is my attempt to tease out that problem and fix it.
Starting with an introduction seems like a good idea, so let’s check out the Intro to Intellectual Space:
Property is the foundation of any free and just human society. “Property” is the name we give to things that can be owned. The owner of a thing is the person who has the sole right to use it, to exchange it, and to exclude others from using it. Without an understanding of property, we have no basis for ethics. We simply have no other way to decide who is and is not allowed to do anything.
Not a bad start. I seem to agree with everything in it. But just because the assumptions being made here are assumptions I like doesn’t mean they’re any good, so let’s pause for a moment to examine some of the assumptions here.
One assumption is that property is necessary. In other words, we are assuming that people need to have the sole right to use a thing, including the right to exclude others from using it. We make this assumption because it tends to be true, for reasons well grounded in physics. Two objects cannot be in the same exact place at the same time, one object cannot be in two places at the same time, energy is conserved, and entropy tends to increase; all these combine to make sharing difficult in all cases and impossible in some cases. Thus, to ensure that people will be able to secure the things they need to survive, we grant each other property rights. But property rights can do more than grant the bare necessities. They can also give people room to develop and improve their possessions, allowing for growth and stability. They can also allow people to have privacy. Property is really nice stuff! So it behooves us to find a way to make sure that everyone can get some property.
There are two recognized ways of getting property: homesteading it, and receiving it. Homesteading is going out, finding some stuff that no one is claiming as property, and claiming it for yourself. Receiving property is when the current owner says that it now belongs to you. This can happen as an exchange, or as a gift. Either way, you now have something that you own, and you can use it to your advantage.
There are some questions that this little intro does not answer, such as, “What constitutes a just claim to property?” and, “What rules should we set on exchanges?” These are important questions, but I’ll leave the answers for later. For now, let’s move on.
Alexander gives credit to the Austrian school of economics for guiding his analysis. I, too, appreciate the contributions of the Austrian school, but they are not the only libertarians whom I consider worth listening to. There are other libertarians and other economists whose opinions and analyses I trust. This may prove to be important.
Then, at last, the intro arrives at the subject of intellectual property. Alexander gives us this quote from Lysander Spooner:
…a man has a natural and absolute right- and if a natural and absolute, then necessarily a perpetual, right- of property, in the ideas, of which he is the discoverer or creator; that his right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with his right of property in material things; that no distinction, of principle, exists between the two cases.
– from The Law of Intellectual Property, Part 1, Chapter 1, Section 9
And here is where the disagreement begins. I do not accept Spooner’s assertion that one can hold ideas as property in the same way that one can hold material things as property. Ideas are not subject to the same laws of physics as material things. They can exist in multiple places at once, at it’s quite possible to use them without using them up.
Alexander then quotes Ayn Rand:
Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.
– from Capitalism: The Unknown Ideal, p. 130
But is that right? I think it’s not hard to come up with an example of property that we can’t reasonably describe as the product of a mind. Consider a fruit tree. Let’s say that no one claims to own this tree, or the land it’s sitting on. It’s free for the taking. So I go up to it and say, “This tree is my tree”. This seems like a typical, uncomplicated example of homesteading to me. Now the tree is my property. But is the tree a product of my mind? I didn’t think of it. I didn’t make it grow. I just claimed it. Or how about this: say I don’t take the whole tree, but I pick a fruit off of it. The rest of the tree I leave for others, but I have homesteaded that fruit. This seems even less controversial than me claiming the whole tree, but that fruit still isn’t the product of my mind, is it?
At some point, Alexander’s viewpoint and my viewpoint diverged. Perhaps I can find out where we split up by examining some of his other posts. He has one post titled The Alleged Case Against Intellectual Property. This seems like a good place to start. In that post, Alexander lists several objections to intellectual property, and explains why he thinks these objections don’t work. Let’s see what he says.
The first objection:
1. Intellectual property is not rivalrous. Physical objects, such as the apples on a tree, are always limited in abundance. If I take the apples and eat them, there are none for you. The use of property by one excludes the use by another. Conflict over scarce resources is inevitable. A peaceful society therefore requires a system of property rights in physical things to decide who is allowed to exploit which resource. Conversely, IP is, by its very nature, super-abundant. If you download a copy of my book, I still have my book. Your use of the IP does not preclude my use. A system of IP rights is therefore unnecessary.
Rule 1: If X is useful, and Y is a duplicate of X, and the use of Y does not interfere with the use of X, then X cannot be property.
X = bicycle.
A bicycle is useful, and a second bicycle is a duplicate of the first bicycle, and the use of the second bicycle by a second person does not interfere with the use of the first bicycle by the first person.
Therefore a bicycle cannot be property?
Rule 1 Fails.
Well, the rule as stated by Alexander does not work. But perhaps there’s a better way to say it. Let’s think about individual copies for a moment. Say I have a CD. The physical CD, at least, is my property; I decide when it’s played, and I answer to no one. Now say someone else has an identical CD. It is not the same physical object, but the information is identical. They own their copy, I own mine. They can play their CD without affecting me and my CD at all. This does not prove that CDs cannot be property. But what about the information on the CD? Alexander has confused the information within an object with the object itself. A better rule would be: “If X is useful, and Y is a duplicate of X, and the use of Y does not interfere with the use of X, then the common trait between X and Y cannot be property.” In the case of bicycles, the common trait would be the information needed to make the bicycle – the essence of bicycles, as it were. Anyone can own a single bicycle, or even multiple bicycles, but no one could claim to own all the bicycles, or somehow claim to own the essence of bicycle. I extend this logic to information: I can own a particular instance of information (a copy, in other words) but I cannot claim to own all instances of it. I own my CD, the other person owns their CD, and so on. We can all play our CDs, or not play our CDs, without conflicting with anyone seeking to play or not play an identical CD. Does this rule fail? I don’t think so.
The second objection:
2. Intellectual property is not libertarian. Enforcement of IP necessitates violations of physical property rights, including the right to self-ownership. If I write a novel and assert a copyright, IP denies you the ability to write down the same pattern of words, even though you are using your own pen, your own paper, and your own physical body. Because you have not aggressed against me, any enforcement of my IP would represent the initiation of force against you.
Rule 2: If the enforcement of Person A’s alleged property rights in X imposes any restrictions on the physical movement of Person B, or any restriction on Person B’s use of his own rightful property, then X cannot be property.
X = land with house.
Person A has land with a house on it. Person A’s alleged property rights in her house imposes a restriction on the physical movement of Person B, because Person B is not allowed inside the house.
Therefore a house cannot be property?
Rule 2 fails.
X = Person A’s own physical body.
Person A’s alleged property rights in her own physical body imposes a restriction on B’s use of his own gun and bullets, because Person B is prohibited from shooting Person A. Therefore one’s own physical body is not self-owned?
Rule 2 fails again.
Again, I think that Alexander fails to craft a sensible rule. He is misstating his opponent’s position and refuting his own flawed misunderstanding, otherwise known as “attacking a straw man”. A better rule would be: “If the enforcement of Person A’s alleged property rights in X imposes any restrictions on the physical movement or actions of Person B within Person B’s own rightful property, then X cannot be property.” Consider the CDs again. I have a CD that I claim as my physical property, within my house that I also claim, with access to copying equipment (like a computer, for example) that I claim as mine. No one disputes any of these claims. Within my house, I can take that CD and copy it as much as I please. But then, someone claims to own the information on the CD. They don’t dispute that I own the physical CD, but they say that I have no right to copy that information. Well, how are they going to stop me? I am within my own house, using my own stuff, and I own that CD! How will they enforce their claim now? Alexander does not say.
3. IP requires arbitrary boundaries. Supporters of IP all agree that a novel is sufficiently complex to be IP, while nobody has suggested that the single word “the” should be property. But how and where do we draw the line? IP requires arbitrary, subjective judgments about the quantity and complexity of information needed to constitute property. Therefore IP cannot be the subject of a rational objective theory, and so cannot be property.
Rule 3. If, during the attempted homesteading of X, the property lines cannot be objectively determined with absolute precision, then X cannot be property.
X = un-owned land.
John discovers un-owned land and decides to build a house and farm, a useful thing. He plants one acre of corn, and sets his house back 20 feet from the beginning of his cornfield, believing he owns the land in between.
Jack discovers un-owned land a few miles from John’s place. Jack decides to build a house and farm, a useful thing. Jack plants one acre of tomatoes, and builds his house 500 feet from the beginning of his tomato field, believing he owns the land in between. Jack also believes he owns a 100 square mile surrounding area (except for John’s house and John’s field) because part of Jack’s use and enjoyment of his property is the beautiful view of undeveloped nature.
Joe discovers un-owned land and decides to build a road, a useful thing. The course of the road leads onto the vast area that Jack believes he owns, and, due to the contour of the land, Joe’s road goes right in between Jack’s house and Jack’s tomato field. Joe’s road also includes a tunnel which runs directly below John’s cornfield, at a depth of 50 feet.
What is the allowable “set back” between a farm house and a field? How much land is rightly allocated for “viewing pleasure”? Did Joe’s road aggress against Jack’s homestead by being on his “100 square miles?” What about when the road went in between Jack’s house and field? John is concerned that the tunnel might cause a cave-in, but it hasn’t yet. How deep, exactly, to property rights go? Where, exactly, are the property lines to be drawn in this example?
The solution to this phsycial property dispute requires arbitrary, subjective, good faith decisions. Therefore land is not valid property?
Rule 3 fails.
A much more interesting objection! This one gets into the difficulty inherent in making claims of property. How much can a person actually claim? Fortunately for us, when it comes to physical property, like land, there are physical guides we can use to help resolve claims. We can ask: How much space does this person need? How much are they actually using? Would it be better to share this stuff, or to give it to a sole owner?
These questions all become much murkier when we get into information. Does anyone need the exclusive right to distribute information? We can say that people absolutely need exclusive space, but exclusive communication? Our guides for solving disputes over physical things can no longer help us.
Alexander does not mention necessity anywhere when discussing property rights. He doesn’t seem to think that it’s relevant. If so, I think he’s wrong. The necessities of life are absolutely vital when drawing just boundaries around property claims. The third objection here points out that there are no necessities to guide us when it comes to “intellectual property”, so how can we draw any lines at all?
The fourth objection:
4. Intellectual property is evil. IP laws are tools of the coercive state. Enforcement of IP is arbitrary or malicious, practiced for the benefit of the government itself and favored interest groups, at the expense of everyone else.
Rule 4: If a state has legislated with regard to the use of X, and enforced that legislation in violation of libertarian principles, then X cannot be property.
X = gold
In 1933, Franklin D. Roosevelt issued executive order 6102, and the following year Congress passed The Gold Reserve Act, making possession of monetary gold a criminal offense. This is clearly in violation of libertarian principles.
Therefore gold cannot be property?
Rule 4 fails.
Now this is just unfair. His “rule” is crap. A better statement would be: “If ownership of X cannot be maintained without a coercive state, then X cannot be property.” Gold can be owned without the help of the state – indeed, it was only because of the state that people lost their ownership of gold! But “intellectual property”? How can you own it without the state? How will you enforce your claims? I’ve never seen a good proposal to enforce IP claims that didn’t require centralized control, mass surveillance, presumption of guilt, seizing of assets, and worse. Alexander offers none. I say that the fourth objection stands.
The fifth objection:
5. Intellectual property requires a physical container. Storing, transmitting and consuming IP can only be accomplished with tangible, physical things like paper, CDs, hard drives, modems, copper wire, DNA, and the human brain. Without physical property, IP disappears. IP is therefore meaningless, and the only correct system of rights is in physical, tangible things.
Rule 5. If X requires a physical container in order to be useful, then X cannot be property.
Without a physical container, orange juice just spills on the ground, which is useless.
Therefore orange juice cannot be property?
Rule 5 fails.
Here, I say that “container” is the wrong word. A magnetic tape, for example, does not “contain” data. When you copy the data off the tape, you’re not pouring it into another container, like so much juice. A better word would be “embodiment”. A tangible, physical thing provides a physical body through which the data can exist. Thus, a CD does not “contain” music like a cup; in a way, it is the music. When data is copied, what happens is that a device reads the data off of a physical object, then alters another physical object, transforming that second object into a new embodiment. A copy machine scans the original, then prints on paper, transforming the paper into new embodiments of the same information. So, rather than being like orange juice, information is more like orange flavor. To restate the rule: “If X requires a physical embodiment in order to exist, then X cannot be property.” Alexander has given no answer to this, so the objection stands.
The sixth objection:
6. Intellectual property is free. Content is an unlimited resource. People can now make perfect copies of digital content for free. That’s why they expect content to be free — because it is in fact free. That is GOOD.
Rule 6: If the per-unit cost of producing consumer good X is extremely small, then capital investment in productive capacity may be ignored, X may be considered “free goods”, and thus not rightful property.
The per-unit cost of manufacturing pain-relief pills is extremely small, so the capital investment in research and development, and machinery may be ignored, pain-relief pills may be considered “free goods”.
Therefore pain-relief pills are not rightful property?
Rule 6 fails.
Notice that when stating the objection, Alexander talks about copies, but when stating his counter-objection, he talks about taking a pill, not copying it. He has missed the point. Indeed, even in stating the objection, he misses the point. It is not that information is free, but rather, that the cost of information can be borne entirely by the consumer, without affecting the producer.
When a “pirate” sets out to infringe copyright, they know that it will cost them. There’s the cost of time, of resources, and of skill. They have to seek out what they want to copy, apply effort and energy into the copying (computers are powerful, but they aren’t magical), and use limited resources to embody and distribute the information (electricity is not free, nor is data storage, nor bandwidth). But none of this affects the original producer of the information. After the pirate has done their work, the maker of the copyrighted information has not lost any time, or resources. The pirate can copy and seed at will without the copyright holder ever knowing, because the pirating truly does not physically affect them.
This is very different from Alexander’s hypothetical with the pills. Though the loss there is small, it is a physical loss. Thus, Alexander’s answer to the objection fails to actually address it. The objection stands.
The seventh objection:
7. Reduction in market value is not rivalry. Of course the unauthorized copying and distributing of a copyrighted work reduces the market value of the work to its creator. This does not mean that IP is rivalrous. For a copyright holder to claim that he has been damaged by the copying, he would first have to assert that he has a legal claim on the money of all his potential customers. In fact, the copyright holder has no more rightful claim to the customer’s money than the copier does.
Rule 7: If a reduction in market value is the only way that the purported owner of X can measure damages caused by a trespasser, then X cannot be property.
You own a house that would sell for $200,000 on the market. A trespasser comes and breaks all the windows. It would cost $10,000 to repair the windows, thus the house as-is would now sell for $190,000 on the market. The trespasser is liable to the homeowner. According to long-standing common law principles, the correct measure of damages is $10,000, the reduction in the market value of the property.
Therefore a house is not rightful property?
Rule 7 fails.
Alexander’s answer does not conform to his proposed rule. The damage to the house can be measured without appealing to market value: the windows are broken! The trespasser caused a physical change to the house that reduced its functionality as a house, and they had to enter the house’s physical space to boot. This does not happen with “intellectual property”. When a pirate copies a file, there is no “broken window” to point to. There was no invasion of someone else’s space, and no loss of functionality of someone else’s property. Nothing changed. Alexander’s hypothetical again fails to address the problem. The objection stands.
Alexander lists one more objection: “8. Intellectual property is not economical. IP works against the interest of consumers by stifling innovation and dis-coordinating the economy.” His post has no answer to this, but he promises to address it later. Having seen how he failed to address the previous seven, I don’t have much faith in his ability to address this one.
But wait! Alexander has a trick up his sleeve. He calls it: “the Doctrine of Intellectual Space”. According to this essay:
The Doctrine of Intellectual Space allows an intellectual object, such as a song, movie, book, or software to be visualized in the same manner as a physical object. This greatly facilitates the otherwise confusing task of comprehending property rights over intangible goods.
Alright, then. Let’s visualize these intellectual objects. How does this work?
Intellectual Space is an array of unique locations, like physical space. Vast quantities of raw intellectual matter are scattered around intellectual space, just as vast quantities of physical matter are scattered around physical space. Words and symbols of human language constitute the basic building blocks of intellectual matter, just as atoms and molecules are the basic building blocks of physical matter.
Pardon me, Mr. Baker, but where is this “intellectual space” that you’re talking about?
No, really, where is it? Can you point it out to me? Can you draw lines in it? Or do you have to resort to pointing at physical space to explain it to me? See, I have to live in physical space and abide by its rules, so why should I care about this “intellectual space” of yours?
I don’t think Alexander ever answers this question of mine. And the excerpt I picked out has a troubling sentence in it. Here it is again: “Words and symbols of human language constitute the basic building blocks of intellectual matter, just as atoms and molecules are the basic building blocks of physical matter.” As a conceptual tool, this isn’t troubling, but as a rubric for determining property rights, this scares me. Consider: when you own a piece of physical property, you own all the atoms and molecules embedded within it (with some exceptions, such as the air around your house). But when you own a piece of “intellectual property”, you cannot claim to own its components; the words and symbols are universal, and anyone can use them. With physical property, this is impossible, but with “intellectual property”, it has to be the norm! This tells us that “intellectual space” has rules very different from physical space. Since this is true, how can we apply property rights based on the rules of physical space to a new space where the rules are different? Alexander doesn’t seem to notice this.
By contrast, Alexander does notice this strange feature of “intellectual space”:
The difference between producer goods and consumer goods is quite obvious in physical space: a factory is different than the things that come rolling off its assembly line. But in intellectual space, there is this fascinating feature: an intellectual object can function as either a producer good or a consumer good, depending on how it is being used at the time.
This is true, and it ought to give us pause. In physical space, ownership does not depend on usage. If I have a seed, for example, I can use it as a producer good (planting it) or a consumer good (eating it). Either way, it’s still my seed. I own it, I get to use it. But “intellectual objects” transform, depending on how you use them. Thus, according to this theory, I can own a song as a “consumer good”, but not as a “producer good”. Despite the fact that I bought a copy of the song, I still cannot use it in a certain manner. But why not? Why can’t I treat the song the way I treated my seed?
Alexander attempts to explain, declaring that making unauthorized copies is akin to trespassing:
No matter how many copies of the song are made, there is still only one song.
No matter how many consumer goods come rolling off the assembly line, there is still only one factory.
Suppose Betty noticed that John was using only his own computer to make copies of “Think This Through”. Betty buys 1 CD and extracts the digital file from it. Using her own computer, her own raw materials and her own labor, Betty burns new CDs. Has Betty stolen anything from John? Has Betty done anything wrong?
Betty may argue that she did nothing wrong. After all, John was making CDs with his own computer, so Betty’s use did not interfere with John’s use. John is still free to use his computer just as before.
I hope that the flaw in Betty’s argument is apparent. Betty may not have stolen anything from John, but she trespassed in intellectual space. She could not have made the copies of “Think This Through” without first venturing on to John’s intellectual property without permission.
The reason trespassing is wrong is that the owner of a property is entitled to exclude others from using it, even when not using it himself. The owner is entitled to 100% of the use. Betty may assert that by making copies she did not interfere with John’s use. But properly understood, she most certainly did interfere. She interfered with the producer use, not the consumer use.
Before Betty’s trespass, John enjoyed 100% of his song’s productive capacity.
Afterwards, it was something less.
But wait! We’re just assuming here that John has the exclusive right to use his “intellectual space”! Now, in physical space, that’s a reasonable assumption, but we’re not in physical space anymore, and different rules apply. An owner of physical property is entitled to exclude others because they have to (if others wander over your property, they can damage it) and because they can do so peacefully (you can put a fence around your property without crossing other people’s property). But in “intellectual space”, it appears as though you don’t have to exclude others (Betty did not harm John’s song by copying it), nor can you exclude them peacefully (you cannot build intellectual fences, so you have to use awful stuff like DRM).
Alexander’s theory is interesting, but not compelling. Just because we can visualize information as objects in space doesn’t mean we have to treat information like objects in space. You might as well try to own a plot of land in Hilbert space as claim a property right in intellectual space. It’s just a metaphor, not a law.
Now, Alexander is not quite done yet. In this post, he asks three questions to anti-IP folks like myself. Let’s see if I can answer them. Here’s the first question:
If IP is super abundant, why do people act as though it is scarce? In particular, why do people contract for the delivery of IP (movies, songs, software, video games)?
Flippant answer: because people are stupid, and tend not to act according to what is real.
More serious answer: because information is not automatically abundant. Rather, information is as abundant as we make it. We can make information scarce, by not sharing it. So if someone wants some information, then they either have to find a loose copy, or find someone willing to share that information with them. Even pirates know this: when a would-be infringer wants a copy of a file, they have to find someone willing to share it with them. This usually isn’t hard, but it doesn’t magically happen for every file that exists.
The trouble with IP is that it says that people have no right to make information more abundant. We all have the power to make more copies, but copyright says that we’re not allowed to do so. Pirates ignore this restriction, increasing the abundance of information. But even pirates can’t copy a file they don’t have. So information is still subject to a kind of natural scarcity, but human action can reduce that scarcity. IP’s problem is that it applies an artificial scarcity on top of the natural one.
The second question:
In a world without IP, how could we possibly contract for the intangible goods people want?
Contract for exchanges of services, of course! In the case of information that already exists, someone who wants that information finds someone who has a copy (anyone will do as long as their copy is sound) and asks them to make a new copy. The owner of that copy can name their terms. Many people will choose to ask nothing in return, but some folks would still sell copies.
In the case of information that does not yet exist, the author could ask for payment up front, or a contract stipulating future payments, in exchange for their services (many do this now). They could release the information gradually, asking would-be consumers to pay for subscription (many authors do this, too). They could bundle the information with some scarce good, such as selling signed copies or giving personal readings. They could even just release the information to the world and ask for payment out of gratitude (this has actually worked quite well for some people). The important thing is that there are options that are known to work. People would still make “intangible goods”, and they’d still make money doing so.
The third question:
Why would you ostracize a plagiarist, when the plagiarist has not violated anyone’s property right?
Maybe because people don’t like being lied to? Alexander insists that “[a]bsent copyright, plagiarism is not fraud”, but that doesn’t change the fact that people don’t like being lied to. Think about it: if you find out that someone has been lying to you, but you haven’t lost any money to them, do you still trust them? No, of course not! People don’t need to be told to shun liars; it comes naturally to us! Furthermore, there could still be property at stake. If someone falsely claims to be a book’s author, and they sell copies of the book signed by themselves but advertised as “signed by the author”, the buyers are being defrauded, because they’re getting books signed by a faker! They didn’t get what they paid for, and the liar owes them money. This only requires honesty, not IP.
And that’s about it. Alexander has more posts on his site, but they don’t present arguments beyond what I addressed here. They still rely on his theory of “intellectual space”, and it’s a bad theory.
If I had to sum up what the Doctrine of Intellectual Space is, I would say it like this: “We can conceive of patterns of information (like books and songs) as objects made of matter, floating in space. Because we can conceive of them as objects in space, we are obligated to treat them like objects in space, applying the same rules we use to determine ownership of actual objects in physical space.” But this doesn’t work, because we can easily see that patterns of information are not subject to the laws of conservation that physical objects are, and we do not need to force them to obey rules that aren’t natural for them.
So to Alexander Baker, and to all other defenders of IP, I say: if you don’t want people to trespass your intellectual space, try putting up an intellectual fence, and see if it keeps people out.