Kinsella and others have offered their arguments against intellectual property. These same people all support property rights in physical things. If their anti-IP arguments are valid, then the exact same reasoning applied to physical objects should produce the opposite result. However, if a logical construct produces the same result regardless of whether it tests a physical or intellectual object, this is strong evidence for the validity of intellectual property. If you want to show that physical goods are rightful property while intellectual goods are not, then you must do so by applying consistent standards to both.
Following is a restatement of all of the arguments against IP, including the conclusion reached by that argument. After each restatement, I have formulated a generalized rule using the variable “X”, and logical operators and conditions. The rule is constructed such that when an intellectual object is substituted for “X”, the result agrees with the argument above. Assuming physical property to be valid, I then substitute a physical object for “X”, to test the rule.
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.
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.
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.
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.
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.
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.
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.
8. Intellectual property is not economical. IP works against the interest of consumers by stifling innovation and dis-coordinating the economy.
This utilitarian argument is based on economic analysis. An ethical, moral and economic analysis of intellectual property on the free market can proceed by postulating the Doctrine of Intellectual Space, Matter and Property; then reasoning forward under Hoppe’s Argumentation Ethic and Austrian Economic Principles generally. Such is the task of the next section.