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.

 

Am I allowed to pick an apple from that tree? It depends whose property this is. Am I allowed to drive that car? It depends who owns it. Even basic human rights are best understood as property rights. Each person owns herself. Am I allowed to touch you? Only if you say so, because you belong to you.

 

Do you see how fundamental and far reaching the concept of property is? The moral concepts of “right” and “wrong” disappear without property. Conceived this way, all rights are property rights, and all wrongs are property violations.

 

Like most everyone, I believe it is wrong to initiate the use of force against the person or property of another. Like anyone with the courage and clarity to apply this non-aggression principle consistently, I am a libertarian. I favor a stateless, voluntary, free society. ­This conclusion is controversial, but it is the only conclusion that can be reached after accepting the validity of property.

 

The findings of Austrian economics

 

The philosophical and economic framework for libertarianism is found in a large literature over the past two centuries, most importantly in that of the Austrian school of economics.[1] Owing to preeminent thinkers such as Ludwig von Mises, Murray Rothbard, and Hans-Hermann Hoppe, using the irrefutable logic of human action called praxeology, the Austrians have shown that a society free of government intervention is superior to any other system, both morally and economically.

 

Economics is understood through a priori, deductive logic, not empiricist positivism. Scarcity of economic resources creates the possibility of conflict. Self-ownership, non-aggression and respect for private property rights are the requirements for peace and prosperity. A state, by definition, is a monopolist of the legal use of violence, and so is incompatible with a free society.  Government intervention into the economy distorts the price signaling system, causing irrational economic calculation. Fractional reserve credit expansion artificially lowers interest rates, stimulates bad investments, and ultimately causes the boom-bust business cycle. Money in a free society must be based on a valuable commodity, like gold.  These are some of the conclusions reached by Austrian school, and I concur.

 

Libertarians on intellectual property

 

In 1855, anarchist philosopher, abolitionist and attorney Lysander Spooner[2] held that:

 

 . . . 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.[3]

 

Similarly, libertarian philosopher and novelist Ayn Rand invoked a homestead principle in supporting intellectual property:

 

Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.[4]

 

Murray Rothbard also supported the concept of intellectual property, but drew a distinction between copyright and patent.[5] He saw no justification for patent on the free market, but argued that copyright could exist as a contract in which a buyer agrees not to copy the intellectual work as a condition of purchase.[6]

 

In recent years, however, owing largely to the scholarship of libertarian author and patent attorney Stephan Kinsella[7], many Austrians appear to have adopted what I believe is an erroneous position on the issue of intellectual property (IP). Kinsella has evidently convinced many that intellectual property does not exist, except in the fanciful imaginations of those artists and inventors who would engage the coercive power of the state to force others to pay for the use of their ideas.  In Kinsella’s view, IP, like the state itself, is incompatible with a free society:

 

[A] system of property rights in “ideal objects” necessarily requires violation of other individual property rights, e.g., to use one’s own tangible property as one sees fit.[8]

 

About this project

 

Having studied and acquired such profound respect for the Austrian school, I initially accepted Kinsella’s central claim that intellectual goods are not rivalrous, and so cannot be property. As both a libertarian and a music composer, deriving a significant portion of my income exploiting my copyrights, I accepted the anti-IP argument somewhat grudgingly.

 

I did notice what I saw as a few shortcomings of Kinsella’s work, such as a lack of clear definitions of crucial terms, and a rather non-libertarian take on the homestead principle. For this reason I began to work on intellectual property myself, thinking I could bolster Kinsella’s case with praxeology.

 

To facilitate, I propose the doctrine of intellectual space. The doctrine is a conceptual framework theorizing the a priori existence of intellectual matter. My approach is to take the reasoning used by Mises, Rothbard and Hoppe in showing the existence of, and property rights in physical matter; and to apply that same reasoning to intellectual matter. I expected to see that these intangible patterns of ideas behaved so differently than physical objects that they could not function as property in a free society. But just the opposite occurred.

 

By the logic of human action, I will show that intellectual objects exist, that they are rivalrous, that they have all the characteristics of goods, and may be homesteaded. I will therefore conclude that a legal system in a free society should enforce property rights in intellectual creations such as songs, books, and motion pictures. For reasons that will become clear, I draw a sharp distinction between copyright and patent, finding that the former should be enforced, while the latter must not.

 

Overview of topics

 

How do we assign property rights in the first place? Is there a philosophically valid way to establish original ownership? And what of intellectual property? Is there such a thing? Is it morally permissible, or economically viable to recognize a property right in a pattern of ideas? Or should property be restricted to the realm of physical, tangible objects? What are the tenets of  the current anti-IP case, and is it valid or flawed? Of what value are empiricist or utilitarian analyses? What thought experiments will illuminate the problem most brightly?  These are the questions will drive this work.

 

In Part I, “The Philosophical Case for Physical Property”, I will offer a brief summary of the well-established libertarian philosophy on property rights, including Hoppe’s Argumentation Ethic. I consider this position to be proven, and after my restatement, I will assume it as fact. If you do not accept the fundamental propositions of self-ownership, the non-aggression principle and homesteading, I refer you the many fine scholars at the Mises Institute[9] , and any disagreements you have can be taken up with them.

 

Next, in Part II, I postulate “The Doctrine of Intellectual space”. I will define “intellectual space”, “intellectual matter”, “intellectual object”, and “intellectual property”, along with other key terms. With these in play, I’ll do a side-by-side analysis of physical vs. intellectual objects, and show that we arrive at property rights in intellectual objects exactly as we arrive at property rights in physical objects. The two behave identically.

 

Part III is “The Alleged Case Against Intellectual Property”. Restated are the arguments against intellectual property, particularly those presented in “Against Intellectual Property” (Stephan Kinsella), and “Against Intellectual Monopoly” (Boldrin and Levine). I will refute each and every element of the supposedly “libertarian” anti-IP position, showing that argument to rest upon logical fallacies such as faulty analogy, baseless assertions, non-sequitors, and begging the question.

 

Finally, Part IV is called “Exploring Intellectual Space”. Here I offer various examples, parables and thought experiments. I apply the theory to various species of intellectual property enforced under the current statist model (i.e. copyright, patent, trademark, and reputation), and discuss which of these are viable in a free society. 

 

I hope that you will join me on my journey through intellectual space.

 

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[1] Austrian economics today has nothing to do with the country of Austria. The originators of the doctrine (Carl Menger, Eugen von Böhm-Bawerk, Ludwig von Mises, Frederich Hayek) were indeed in Austria, faculty at the University of Vienna, during the late 19^th and early 20^th centuries.

[2] See Spooner’s classic essay “No Treason: The Constitution of No Authority” (1867), a refutation of the U.S. Constitution under common law contract principles.

[3] Spooner, Lysander, “The Law of Intellectual Property”, Part 1, Chapter 1, Section 9.

[4] Rand, Ayn, “Capitalism: The Unknown Ideal” Signet, New York, 1967, p. 130.

[5] Rothbard, Murray N., “Man, Economy, and State: A Treatise on Economic Principles” Volume II, Chapter 10: Monopoly and Competition, Nash Publishing, Los Angeles 1970, pp 652-660)

[6] Under long-held common law principles, one can only contract regarding that which is one’s rightful property.

[7] See Kinsella’s website http://www.stephankinsella.com

[8] Kinsella, Stephan, “Against Intellectual Property” Ludwig von Mises Institute,  (2008) p. 59.

[9] The Ludwig von Mises Institute (http://www. mises.org) freely provides a vast library of online books, articles, lectures and other educational materials related to the economics and philosophy of human liberty.