Al has an idea for a new manufactured product called
"the widget". He spends an entire year building a factory on his own
land. Now that the factory is built, he can churn out widgets at a rate of 1
every 5 minutes. Each widget bears a unique serial number, and Al begins
selling widgets on the market.
Less than a week later, Bob has accumulated 100 widgets.
Interestingly, the serial numbers on Bob's widgets do not match any of the ones
the Al has produced from the factory. Somehow, more widgets have been produced
than Al was aware of. Our task is to figure out who these new widgets rightly
belong to.
Where did Bob's widgets come from? There are 2
possibilities, and we must use our reasoning skills to decide which is correct.
Either Bob has built his own factory, on his own land, and is now able to make
his own widgets, or else Bob has been sneaking into Al's factory at night, and
making unauthorized widgets.
Even if we don't have direct knowledge about what Bob has
been doing lately, we know that he must have been using Al's factory. It would
take a year for Bob to build his own factory, and here he is with a hundred
widgets less than a week after Al opens his factory!
Before Al built his factory, there was no ability to produce
widgets at all. The ability to produce widgets did not occur magically.
Productive capacity comes into existence due to the purposeful investment and
labor of entrepreneurs.
By sneaking into Al's factory, Bob is guilty of property
crimes, such as trespass. The widgets produced by Bob rightly belong to Al. Bob
should be additionally punished as a deterrent to future crimes.
In his own defense, Bob might make some interesting
arguments. Bob could say that widgets are not rivalrous, because his making new
widgets did not deprive any previous owners of their use and enjoyment. This
would be a blatantly incorrect interpretation of “rivalrous”. From the consumer
standpoint, each widget can only be used by one person at a time, thus widgets
are rivalrous. From the producer standpoint, the market for widgets is only so
big at a point in time. Only so many total widgets can be sold, thus the widget
market is also rivalrous.
Bob could assert that his actions have increased the total
supply of widgets, improving the overall economy, and helping to promote the
visibility of widgets to potential new customers of both Al and Bob. These
assertions may or may not be true in this case, but nonetheless are completely
irrelevant on the issue of Bob's crimes. Property rights are the very
cornerstone of a free market, and a property right means nothing if not the
ability to exclude others.
Now let's get intellectual . . .
Keeping in mind the story of the factory and the widgets,
let's now make Al a singer-songwriter. Al spends a year writing, arranging and
recording a new song called "Forever Mine". The finished song exists
as a digital file. He is able to
use his computer equipment to make CD copies at a rate of 1 every 5 minutes. Al
is so pleased with his productive capacity that he calls his original song file
"the factory", and each copy, a "widget". Al begins selling
his song copies, his "widgets" on the market.
Less than a week later, Bob has accumulated 100 copies of
"Forever Mine". We know
what happened: Bob purchased one CD copy, and was able to extract the digital
file. Bob could then make his own copies at the rate of 1 every 5 minutes.
Where did Bob's productive capacity come from? Comparing it to the example of the factory and widgets,
which is it more like? Is it more like Bob built his his own factory on his own
land, or is is it like Bob was sneaking in to Al's factory and making
unauthorized widgets?
The answer must be that Bob was sneaking onto Al's property.
Bob did not make any investment in creating this productive capacity, yet the
productive capacity exists.
"Even if we don't have direct knowledge about what Bob has been doing lately, we know that he must have been using Al's factory. It would take a year for Bob to build his own factory, and here he is with a hundred widgets less than a week after Al opens his factory!"
ReplyDeleteNot necessarily. What if I tell you that Bob already has multiple factories which are more advanced and configurable than Al's? Bob scanned the widget in and started producing copies.
More importantly, your overall argument seems more like an abuse of analogy than a strict logical flow. Maybe you could try and refine it to make the steps more explicit.
The way I read your argument is:
1) in cases where person 1 spends a lot of capital to produce something, one would infer that person 2 is guilty of trespass if we observed person 2 producing many similar Xs
2) X = song
3) therefore a person copying a song must be trespassing
What you are missing is that the reason the inference at step one is reasonable in some cases is because we have prior knowledge of what X is and what type of factory is involved. This inference may or may not be applicable for different physical goods, let alone intellectual ones.
If Bob sneaks into Al's factory, that's trespass. If Bob already has his own factories then he does not violate Al's physical property rights. I don't think Al enjoys an intellectual property right in the design of the widget, because the widget itself does not contain productive capacity.
DeleteIf Bob copies a song, he is trespassing on the productive capacity built and owned by Al. If Bob produces his own different song, and makes copies of that, he is using his own productive capacity.