Hello again, readers. I’m working on a long post, tentatively titled “The Costs of Copyright”, but before that’s ready, I’d like to share with you something that was going to be in the post, but which I removed because it didn’t fit the tone I was going for, but I just couldn’t throw it out, so here it is now: I am taking three people who I’m inclined to disagree with, and finding things that we agree upon.
The three people who disagree with me are J. Neil Schulman (see my disagreements with him here), Alexander Baker (see here) and a mysterious fellow who I know only as Strangerous Thoughts. I haven’t publicly sparred with Strangerous before, but they’ve written posts like The ultimate justification for natural and intellectual property and The economic principles of intellectual property and the fallacies of intellectual communism, so you can see why I am inclined to list them alongside Alexander and Neil. But before I get to disagreeing with these fellows once more, I must first say nice things about them (one of these days, I’m going to say nice things about Jack Valenti).
First, about J. Neil Schulman. Neil wrote a little essay called Human Property, seeking to explain his views on what property is and what it should be. Sadly, early on the essay, he insists: “There is no more of a distinction to be made between “intellectual” property and “stupid” property than there are distinctions between any other kinds of property.” But! Just before Neil says that, he says this:
Nothing in a state of nature is property.
It’s only the application of human intellect to things found in a state of nature that makes anything property.
Why, that’s right! And it’s something that I’ve been overlooking.
As Neil puts it, nothing in nature has the stamp of ownership on it. There is no natural property. So how does property come into being? Quoting Neil:
Then come human beings who look around, put up fences, take stuff and turn it into other — sometimes brand new — stuff, and say to other human beings, “This which I messed around with is mine and not yours. Use it without my permission and there’s going to be big trouble.”
Now, when I read that, I remembered this phrase from Jean-Jacques Rousseau’s Discourse on Inequality:
The first man who, having enclosed a piece of ground, bethought himself of saying This is mine, and found people simple enough to believe him, was the real founder of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: Beware of listening to this imposter; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.
It seems that Mr. Rousseau and Mr. Schulman do not agree on the utility of the idea of “property”. Who is right? I say that J. Neil Schulman is right. To support Neil’s position, I quote Crosbie Fitch:
Tell a bear his cave is not his property because he has no government to legislate it so. Tell a wolf the carcass he’s enjoying is not his property because he has no government to legislate it so.
Property derives from privacy, the individual’s innate power and natural right to exclude others from the spaces they inhabit and the objects they possess. Governments are supposed to secure such exclusive rights – on the basis of equality – as opposed to whoever is the more powerful.
Rousseau saw property as a wicked institution, but Fitch does not agree, and neither does Neil, and neither do I. Animals recognize property just as much as humans. Birds do it (nests), bees do it (hives), even educated fleas do it (citation needed). The idea of property is a functional, useful idea. But it is an idea, and I thank Mr. Schulman for pointing that out to me.
Second, about Alexander Baker. In the comments on this recent post of his, he makes an excellent point, which I shall quote here:
“Use is only interfered with if the thing is physically interfered with.”
You’re free to define “use” that way, but then all you’ve done is smuggled your conclusion into your premise. With that definition, Kinsella could have written a very short book:
Property rights only apply to rivalrous things. Rivalrous means that use by one interferes with use by another. Interference must be physical. Therefore property rights only apply to physical things. QED.
And that is the sum and substance of what Kinsella did, although he goes on for 60 pages.
(Context: he’s responding to a commenter trying to nail down the definition of use, and he references this book by Kinsella.)
Now, to me, that sounds very reasonable! Why not make that a premise? But Mr. Baker is right to point out that it is a premise, and it’s important to question our premises, and it’s especially important to not assume what you’re trying to prove (except in mathematical proofs, but that’s a story for another time).
Finally, about Strangerous Thoughts. They’re new here, but it so happens that I have the nicest things to say about them (sorry, Neil and Alexander). I refer you to this post of theirs: The supply of and demand for rights and the fallacy of natural rights. I agree with the entire thing, and I will be basing this post on the theory that Strangerous offers therein. Here’s Strangerous’s own summary:
The pursuit of natural rights theory is a search for first principles that determine the unarguable right any human possesses at any time in any place. This idea cannot be transposed from theory to reality. In reality, rights only exist if they are enforced, and the enforcement of rights is limited by material scarcity. In a free market society there may be no avoiding positivist rights if costs must be suffered to have rights – each individual must pick and choose what rights to insure himself.
In other words, we cannot guarantee all conceivable rights, so we must economize. For example, we cannot grant ourselves the right to immortality. It’s too expensive! Generations have tried and failed to achieve it, without success, so it’s just not a good idea to try to guarantee it. Of course, none of us are very eager to die, so we grant ourselves the right to not be murdered. This is a much cheaper right, but it still comes at a cost: we must give up the right to murder. Most of us consider this right to be of very little value, so we give it up almost thoughtlessly, but it’s good to recognize that we have given up a right in exchange for a different right. Everything comes at a cost.
Now, all that said, what rights shall we grant ourselves? Here, like most libertarians, I take my cue from the viewpoint of individualism. As an individual, I exist independent of anyone else, and have the power to make my own decisions, just like every other individual out there. The libertarian style of economics, so often called “capitalism”, is better understood as economic individualism:
Economic individualism’s basic premise is that the pursuit of self-interest and the right to own private property are morally defensible and legally legitimate. Its major corollary is that the state exists to protect individual rights. Subject to certain restrictions, individuals (alone or with others) are free to decide where to invest, what to produce or sell, and what prices to charge.
This approach applies to civil rights as well. As Neil put in the title of one of his posts: No, Not Gay Rights — Individual Rights! I couldn’t have put it better myself.
Now let me get back to the subject of economizing rights. Since we’re trying to maximize individual rights, we must ask: “What rights do individuals want most, and what rights can individuals afford?” From here, we can turn to physical reality as our guide, to help us determine which rights an individual needs most to survive and which rights an individual is most able to secure for themselves. Crosbie Fitch, pondering a similar question, came up with this response:
Rights are the vital powers of all human beings. We have rights to life, privacy, truth, and liberty.
– We have a right to life, to protect the health and integrity of our minds and bodies.
– We have a right to privacy, to exclude others from the objects we possess and spaces we inhabit.
– We have a right to truth, to guard against deceit.
– We have a right to liberty, to move and communicate freely.
Regrettably, Fitch calls these “natural rights”, but the term here might be appropriate, because these rights stem from powers that we all naturally possess, and needs that we all naturally have! As such, we can describe them in market terms as high-value, low-cost rights, just the sort of thing that a free market in rights can effectively deliver. Better yet, the enforcement of these kinds of rights is subject to economies of scale: the more people have them and defend them, the easier they are to defend. By cooperating in mutual defense, we can strengthen our claims to these rights, lowering their effective price, which leaves us room in our “rights budget” to secure further rights for ourselves (or, alternatively, to take the time and energy that we used to spend securing our rights, and use it to secure other goods, such as material wealth of leisure time). This is called progress.
That was all going to be in the introduction, but I changed my mind. I hope you don’t mind me putting it here, to stand or fall on its own merits alone.