After acknowledging, correctly, that a libertarian society is founded on respect for property rights, Shaffer sets out to prove that intellectual property (IP) is illegitimate, and nothing more than a tool of the coercive state. Seemingly wishing to analyze intangible goods on the same logical grounds as physical goods, Shaffer asks the pertinent question up front:
How do [property] interests come into existence? (p.17)But Shaffer never actually addresses this question, certainly not from a libertarian perspective. He never mentions the concept of self-ownership, nor homesteading. He never discusses scarcity and rivalry, the very rationale for property.
Instead, he cites the U.S. Constitution, § 8.8, relating to the rights of authors and inventors, as if it gave birth IP in 1789. Having bypassed any discussion of the philosophy of property, Shaffer hurls hyperbole:
This constitutional authority [to govern copyright and patent] created, in a legal monopolist of violence, the power to create in others monopoly property interests that did not otherwise exist. (pp. 24-25)This is just a naked assertion. Shaffer does not attempt, let alone succeed, at showing that property rights to intangible works cannot exist but for the state. Instead, he simply assumes his desired conclusion, stating:
The incompatibility of such an interest with libertarian principles should be apparent. (p.25)In a word Mr. Shaffer: No. No, the alleged incompatibility of IP with libertarian principles is most certainly not apparent. Whether or not IP is libertarian depends on our understanding of the rationale and ethics of property in general. If intangible goods can meet the critera, then IP is legitimate. If not, then not.
Briefly, the rationale for property is avoiding conflict over scarce rivalrous goods. I have given my arguments for why and under what circumstances intangible goods must be considered scarce and rivalrous. But at no point does Shaffer even raise the issue.
Briefly, the correct ethics of property are self-ownership and the homestead principle. I own my body, you own yours. The first person to discover un-owned things and transform them into usefulness is the rightful owner. Producer owns product. I have shown that intangible works are acts of homesteading. Shaffer does not even raise these issues, but instead offers:
The common law system got it right: because the essence of ownership is found in the capacity to control some resource in furtherance of one’s purposes, such a claim is lost once a product has been released to the public. The situation is similar to that of a person owning oxygen that is contained in a tank, but loses a claim to any quantity that might be released—by a leaky valve—into the air. (pp. 25-26)Shaffer's analogy to oxygen leaking from a tank into the atmosphere is ludicrous. Oxygen dissolves into the air almost immediately, and becomes indistinguishable from it. In stark contrast, an intellectual object like a song remains perpetually distinct from its surroundings in intellectual space. There are millions of copies of "Hey Jude" in existence, yet we still have no difficulty ascertaining its boundaries. We can tell where it begins, and where it ends. We understand what is "Hey Jude", and what is not "Hey Jude".
What philosophy holds that "the essence of ownership is found in the capacity to control some resource in furtherance of one's purposes" as Shaffer asserts? It certainly isn't libertarianism, and it certainly isn't the Common Law. Under Shaffer's theory, whoever is strong enough to take over a piece of land becomes the rightful owner.
The rightful owner is the homesteader, or those who have contracted with the homesteader in voluntary exchange. It's pretty basic libertarian stuff. Thus, it's downright astonishing that other Mises scholars let Shaffer get away with this shallow sophistry. David Gordon, who wrote the introduction, is one of the sharpest philosophical minds in libertarian circles, yet says nothing about Shaffer's unwillingness to adhere to even the slightest modicum of academic rigor. What is going on here? I digress.
Throughout his book, Shaffer repeatedly refers to IP as a "monopoly". This is the same thinly-veiled scare-tactic employed by Boldrin & Levine. Any property right is a "monopoly", if you want to abuse the term. Property, by definition, is the right to exclusive ("monopolistic") control. Shaffer badly wants to convince us that IP must be a state-granted "monopoly". But in the end, he doesn't even try.
The notion that the anticipation of monopolistic rewards such as patents and copyrights is essential to the creative process, is negated by much of human history. I am unaware of any copyrights having been issued to writers such as Aeschylus, Homer, Shakespeare, Dante, or Milton; or composers such as Beethoven, Bach, Mozart, Wagner, or Tchaikovsky; or art- ists such as Van Gogh, Michelangelo, Da Vinci, Rembrandt, or Renoir. Were Leon- ardo’s or Gutenberg’s inventions, or the Egyptian pyramids, or the Roman aque- ducts, rewarded by state-issued patents? (p. 27)Where is the evidence that ancient Egyptians had decent respect for property rights in land? And yet, they built the great pyramids, amazing physical structures that stand to this day. Clearly, great works can be completed prior to a general acceptance of property rights. Does it follow that property rights are therfore invalid? It's an obvious non-sequitur.
It's certainly true that great inventions and works of art occurred before patent and copyright. This is simply due to the fact that intellectual goods are a much more recent development than physical goods. The great increase in intellectual works in the late middle ages gave rise to the need for property rights in them, the same way that building houses and farms gave rise to the need for physical property rights long before that.
Steadfastly refusing to acknowledge even the possibility that IP could be based on actual property theory, Shaffer restates the the utilitarian argument, to then attempt to dismiss it:
But is the premise upon which IP has long been defended—i.e., its importance in making possible creations that benefit mankind—at all valid? (p. 28)
[W]ho, amongst our earliest ancestors, were granted copyrights for [inventing the alphabet]? (p.33)Who, amongst our earliest ancestors, were granted land deed titles? None. Does this invalidate physical property? No. Recall that, in the beginning, Shaffer did suggest that he would apply a consistent standard in comparing physical to intellectual property. He obviously chose not to do so.
Throughout the book, given the lack of any mention of homesteading, or self-ownership, one gets the impression that Shaffer's bent is not particularly libertarian. Then he completely gives away the game, and his communistic mindset is revealed plainly:
What anticipation of material rewards drove our prehistoric ancestors to make their handprints on the walls of ancient caves in Spain and France? Might they have had no other purpose than to reach their hands 40,000 years into the future to express to us that most fundamental spiritual need for transcendence: “I was here”? (p. 36)I can think of no better expression of New Socialist Man than what Shaffer has written above. Forget your "anticipation of material rewards". Forget your property rights. It's all about your "fundamental need for transcendence". Wow. Just, wow.
Having ignored his own question for the entire book, Shaffer restates it at the end:
As asked earlier, to the extent IP interests arise only by way of grants from the state, how can such claims be defended on the basis of libertarian principles grounded in individual liberty and respect for private property? (p.42)Claims to property rights over intangible goods can indeed be defended on the basis of libertarian principles grounded in individual liberty and respect for private property. That is Intellectual Space.