We have property rights to avoid conflict over scarce
goods. Nearly all things are scarce, or more precisely, “rivalrous”.
Rivalrous means that the use of the thing by one person interferes with
the use by another. Super-abundant goods, like atmospheric air, are not
rivalrous. My breathing does not interfere with anyone else’s breathing.
So, there is simply no need to establish a property right.
It is argued that intangible goods (songs, stories, movies, computer games, software, etc.) are super-abundant, like a “magically reproducing lawnmower” (see Kinsella). I will show that this assertion is based on a failure to distinguish between producer goods and consumer goods. Once the “use” of producer goods is understood, it becomes clear that intangible goods are rivalrous, justifying intellectual property (IP).
A Song is a Like a Bicycle . . . and a Bicycle Factory
Bicycles are mass-produced in a bicycle factory. A song is mass-produced by making digital copies on a computer. A bicycle factory does not simply exist, nor does a master song file. Like any other producer good, both factories and master song files must first be created, only then can they be used for mass production.
Making a bike factory or a new song is an act of creation by an entrepreneur. The person who brings this productive capacity into existence is its rightful owner, according the to the homestead principle. The homesteader also owns whatever goods are produced in the factory.
Theoretically there is some finite limit on the quantity of goods that could possibly be produced in the factory over a given period of time. In operating the factory, the owner may attempt to reach that upper limit, or not. Either way, ownership is not diluted. The homesteader owns 100% of the output from their factory, regardless of how much he or she chooses to utilize.
Bicycles in Physical Space
Suppose John is a bicycle maker. John discovers unowned land, and builds a bicycle factory there. By doing so, John has homesteaded in physical space, because he discovered and transformed unowned tangible raw material into something useful. The factory exists at a unique location in physical space, because other things are at a different longitude and latitude. We can appreciate the boundary, because the building is distinguishable from its surroundings. By titling the factory and attaching his name, John has staked his claim.
For simplicity, imagine John’s factory as a building with an assembly line and a pile of raw aluminum tubing. With electricity to run the machine, and John’s labor, he can make 48 bicycles in an 8-hour day.
John owns all 48 bicycles produced each day. If he sells a bicycle to Betty, then Betty owns that one bicycle. Betty is now free to ride her new bicycle whenever she pleases. But in no way does Betty own any part of the productive capacity in John’s factory. When it comes to bicycles, the difference between the producer good (the factory) and the consumer good (the bicycle) is obvious, because they are physically distinct.
Betty Makes Bicycle Copies
Suppose Betty noticed that John was only operating his factory 8 hours per day. Late one night, Betty sneaks into the factory. Using her own raw materials and her own labor, Betty runs the assembly line and produces some new bicycles, which she carts away before John returns the next morning.
Has Betty stolen anything from John? Has Betty done anything wrong? Betty may argue that she did nothing wrong. After all, John was using his factory only during the daytime, so Betty’s use did not interfere with John’s use. John is still free to use his factory just as before.
I hope that the flaw in Betty’s argument is apparent. Betty may not have stolen anything from John, but she trespassed. The reason trespassing is wrong is that the owner of property is entitled to exclude others from using it, even when not using it himself. The owner is entitled to 100% of the use. Betty may assert that she did not interfere with John’s use, but properly understood, she most certainly did interfere. Before Betty’s trespass, John enjoyed 100% of his factory’s productive capacity. Afterwards, it was something less than 100%.
Note that expressing the factory’s total productive capacity as a percentage is crucial. If we were to express the capacity as a quantity, say “48 bicycles per day”, we would arrive at the mistaken conclusion that Betty is allowed to use John’s factory at night.
Songs in Intellectual Space
Now suppose John is a recording artist. John writes and records a new song called “Think This Through”. In doing so, John has homesteaded in intellectual space. He discovered and transformed unowned intangible raw material into a useful new object. The song exists at a unique location in intellectual space because it has a beginning, an end, and unique contents within. We can appreciate the boundary because it is distinguishable from other songs. By titling and attaching his name, John has staked his claim.
“Think This Through” exists as a digital file on John’s computer. The master song file, the computer, and a stack of blank CDs are like a factory assembly line. With electricity to run the machine, and John’s labor, he can make 48 copies in an 8-hour day.
John owns all 48 CDs produced each day. If he sells a CD to Betty, then Betty owns that one CD. Betty is now free to play her CD whenever she pleases. But in no way does Betty own any part of the productive capacity in John’s factory. When it comes to music, the difference between the producer good (the original song) and the consumer good (a copy of the song) is not obvious, because the copy can also be used as an original. But the difference is real, and crucially important:
Suppose Betty noticed that John was using only his own computer to make copies of “Think This Through”. Betty buys 1 CD and extracts the digital file from it. Using her own computer, her own raw materials and her own labor, Betty burns new CDs. Has Betty stolen anything from John? Has Betty done anything wrong?
Betty may argue that she did nothing wrong. After all, John was making CDs with his own computer, so Betty’s use did not interfere with John’s use. John is still free to use his computer just as before.
I hope that the flaw in Betty’s argument is apparent. Betty may not have stolen anything from John, but she trespassed in intellectual space. She could not have made the copies of “Think This Through” without first venturing on to John’s intellectual property without permission.
The reason trespassing is wrong is that the owner of a property is entitled to exclude others from using it, even when not using it himself. The owner is entitled to 100% of the use. Betty may assert that by making copies she did not interfere with John’s use. But properly understood, she most certainly did interfere. She interfered with the producer use, not the consumer use.
Before Betty’s trespass, John enjoyed 100% of his song’s productive capacity. Afterwards, it was something less than 100%.
Conclusion
Copyright infringement is trespass, not theft. Recognizing the distinction between producer use and consumer use of intellectual objects is crucial to correct analysis. The music industry should continue making the strong utilitarian argument, pointing out that creators will not be compensated without copyright. However, the music industry should also address the philosophical debate over intellectual property by implementing the paradigm of Intellectual Space.
It is argued that intangible goods (songs, stories, movies, computer games, software, etc.) are super-abundant, like a “magically reproducing lawnmower” (see Kinsella). I will show that this assertion is based on a failure to distinguish between producer goods and consumer goods. Once the “use” of producer goods is understood, it becomes clear that intangible goods are rivalrous, justifying intellectual property (IP).
A Song is a Like a Bicycle . . . and a Bicycle Factory
Bicycles are mass-produced in a bicycle factory. A song is mass-produced by making digital copies on a computer. A bicycle factory does not simply exist, nor does a master song file. Like any other producer good, both factories and master song files must first be created, only then can they be used for mass production.
Making a bike factory or a new song is an act of creation by an entrepreneur. The person who brings this productive capacity into existence is its rightful owner, according the to the homestead principle. The homesteader also owns whatever goods are produced in the factory.
Theoretically there is some finite limit on the quantity of goods that could possibly be produced in the factory over a given period of time. In operating the factory, the owner may attempt to reach that upper limit, or not. Either way, ownership is not diluted. The homesteader owns 100% of the output from their factory, regardless of how much he or she chooses to utilize.
Bicycles in Physical Space
Suppose John is a bicycle maker. John discovers unowned land, and builds a bicycle factory there. By doing so, John has homesteaded in physical space, because he discovered and transformed unowned tangible raw material into something useful. The factory exists at a unique location in physical space, because other things are at a different longitude and latitude. We can appreciate the boundary, because the building is distinguishable from its surroundings. By titling the factory and attaching his name, John has staked his claim.
For simplicity, imagine John’s factory as a building with an assembly line and a pile of raw aluminum tubing. With electricity to run the machine, and John’s labor, he can make 48 bicycles in an 8-hour day.
John owns all 48 bicycles produced each day. If he sells a bicycle to Betty, then Betty owns that one bicycle. Betty is now free to ride her new bicycle whenever she pleases. But in no way does Betty own any part of the productive capacity in John’s factory. When it comes to bicycles, the difference between the producer good (the factory) and the consumer good (the bicycle) is obvious, because they are physically distinct.
Betty Makes Bicycle Copies
Suppose Betty noticed that John was only operating his factory 8 hours per day. Late one night, Betty sneaks into the factory. Using her own raw materials and her own labor, Betty runs the assembly line and produces some new bicycles, which she carts away before John returns the next morning.
Has Betty stolen anything from John? Has Betty done anything wrong? Betty may argue that she did nothing wrong. After all, John was using his factory only during the daytime, so Betty’s use did not interfere with John’s use. John is still free to use his factory just as before.
I hope that the flaw in Betty’s argument is apparent. Betty may not have stolen anything from John, but she trespassed. The reason trespassing is wrong is that the owner of property is entitled to exclude others from using it, even when not using it himself. The owner is entitled to 100% of the use. Betty may assert that she did not interfere with John’s use, but properly understood, she most certainly did interfere. Before Betty’s trespass, John enjoyed 100% of his factory’s productive capacity. Afterwards, it was something less than 100%.
Note that expressing the factory’s total productive capacity as a percentage is crucial. If we were to express the capacity as a quantity, say “48 bicycles per day”, we would arrive at the mistaken conclusion that Betty is allowed to use John’s factory at night.
Songs in Intellectual Space
Now suppose John is a recording artist. John writes and records a new song called “Think This Through”. In doing so, John has homesteaded in intellectual space. He discovered and transformed unowned intangible raw material into a useful new object. The song exists at a unique location in intellectual space because it has a beginning, an end, and unique contents within. We can appreciate the boundary because it is distinguishable from other songs. By titling and attaching his name, John has staked his claim.
“Think This Through” exists as a digital file on John’s computer. The master song file, the computer, and a stack of blank CDs are like a factory assembly line. With electricity to run the machine, and John’s labor, he can make 48 copies in an 8-hour day.
John owns all 48 CDs produced each day. If he sells a CD to Betty, then Betty owns that one CD. Betty is now free to play her CD whenever she pleases. But in no way does Betty own any part of the productive capacity in John’s factory. When it comes to music, the difference between the producer good (the original song) and the consumer good (a copy of the song) is not obvious, because the copy can also be used as an original. But the difference is real, and crucially important:
No matter how many bicycles come rolling off the assembly line, there is still only one factory.
No matter how many copies of the song are made, there is still only one song.Betty Makes Song Copies
Suppose Betty noticed that John was using only his own computer to make copies of “Think This Through”. Betty buys 1 CD and extracts the digital file from it. Using her own computer, her own raw materials and her own labor, Betty burns new CDs. Has Betty stolen anything from John? Has Betty done anything wrong?
Betty may argue that she did nothing wrong. After all, John was making CDs with his own computer, so Betty’s use did not interfere with John’s use. John is still free to use his computer just as before.
I hope that the flaw in Betty’s argument is apparent. Betty may not have stolen anything from John, but she trespassed in intellectual space. She could not have made the copies of “Think This Through” without first venturing on to John’s intellectual property without permission.
The reason trespassing is wrong is that the owner of a property is entitled to exclude others from using it, even when not using it himself. The owner is entitled to 100% of the use. Betty may assert that by making copies she did not interfere with John’s use. But properly understood, she most certainly did interfere. She interfered with the producer use, not the consumer use.
Before Betty’s trespass, John enjoyed 100% of his song’s productive capacity. Afterwards, it was something less than 100%.
Conclusion
Copyright infringement is trespass, not theft. Recognizing the distinction between producer use and consumer use of intellectual objects is crucial to correct analysis. The music industry should continue making the strong utilitarian argument, pointing out that creators will not be compensated without copyright. However, the music industry should also address the philosophical debate over intellectual property by implementing the paradigm of Intellectual Space.
I don't think the distinction between idea as-a-good vs. idea as-a-factory advances your argument. The fundamental issue is that two people can use the same idea at the same time. It is not exclusive. And it does matter if they use it as a good or as factories.
ReplyDeleteOn the other hand, physical objects such as bikes and factories can only be used by one owner at a time. If I take your bike, then you don't have it anymore. If I use your factory, you can't use it at that time anymore.
But with ideas, my re-using your idea does not take it away from you (although clearly some of the benefits you would get from excluding me are lessened). You can still do everything you would have done (you didn't lose use of the idea).
If physical space was not rivalrous and two people could literally stand in the same place or use the same space for two concurrent purposes, the concept of property in space would be useless.
The same applies to ideas (whether they are goods or capital goods).
It is crucial to distinguish between consumer use vs. producer use. This is because it fundamentally changes what it means to "use" the thing in question. Whether the use occurs "at the same time" or "at some other time" is completely irrelevant. If I own it, you can't use it AT ANY TIME, whether I'm using it at that time, or not.
DeleteIt is absolutely true that copying my song does not interfere with my ability to listen to a different copy of the song. However, that is not my intended use. My use is to mass-produce copies. Because I homesteaded the productive capacity, I own 100% of the product.
Perhaps your communistic impulses satisfy an egalitarian concept of fairness within you. Perhaps they derive from a frustration that your own IP is worthless. Whatever the reason, communism must be opposed on both moral and utilitarian grounds.
Consider the ownership of a house. It's easily possible for 2 people to "use" the house at the same time. Does this mean that a house is not rivalrous? No, and here's why.
DeleteAlthough 2 people can use some part of the house at the same time, 2 people cannot use 100% of the house at the same time. Ownership is not diluted. Ownership means exclusive control of 100% of the use of the thing in question. Not 50%. Not 99.99%.
Likewise, it is possible for 2 people to make copies of the same song at the same time. But two people cannot use 100% of the productive capacity of the song at the same time.
If I own a house, but you decide to move in regardless, I do lose control and my ownership is concretely reduced. I cannot accomplish my goals anymore. For example, I cannot cook my dinner because you may already occupy the small kitchen, you left a mess or you ate the food in the fridge. In short, I cannot produce what I want from my kitchen.
DeleteOn the other hand, if I start making copies of the song you "own", I am not preventing you from accomplishing your goals. You are still able to produce the same amount of copies you wanted. You still have full productive capacity. In short, you can still produce what you want using the song.
So I would say that copying your song does not interfere with your use of the song as a production good, whereas your moving into my house does interfere with my use of the house.
My making copies of the song is effectively undetectable to you until you try to sell you song to customers (unlike my trying to cook dinner in my kitchen).
Yes, my copying your song will be harder for you to make money. There is a reduction in profits from trade. But those profits are not something ownable in the first place (just like you don't own your customers, or your job, etc).
Going back to the kitchen analogy, it should be clear that the profits from trade cannot be ownable. Let's say I use my kitchen to produce food that I sell (lunchbags). Then you open a competing place selling lunchbags. You have reduced my profits from customers (just as when I produce copies of songs), but you have no rights to those profits anyways.
PS: Speculations as to my motivations are irrelevant to my arguments.
I think some flaws in your argument might become clear if you expand on the ramifications a bit. If I understand correctly, you're a musician.. so I can see why the digital duplication of recorded works is of special interest to you. But if you could comment on some other "intellectual property" situations, I'd appreciate it:
ReplyDelete-Can Betty learn and publicly perform John's song without permission? Does this interfere with his intended use of it in its productive capacity?
-Can Betty make, perform, record, or distribute songs derived from John's? Remixes, mash-ups, parodies, variations on themes in John's song? Songs containing 1-second "samples" of John's? 10-second samples? 30-second samples?
In other disciplines:
-Is it permissible for Betty to create "fan fiction" based on characters in John's song, or on Harry Potter or Star Wars characters? What about characters from Beowulf?
-If John prepares a dish, and Betty (whose palate is as refined as Christine Ha's) figures out how to make it simply by eating it, does she trespass his "intellectual property" if she prepares (and sells) the dish for others? If John owns a restaurant and sells the dish, are Betty's rights to do so different than if he doesnt?
-What about a chess game? The intended purpose of a sequence of moves (which are designed/created by intellectual effort) is to win a game. Can Betty use the same moves to win games? Can she print books/commentary on them? Does it depend on whether the original player is publishing/selling books containing the game in question?
As you can see, I (and most people who engage these questions) are less interested in whether you call something "scarce" (or "property" or "communism") than we are in what human actions you think must be prohibited.
-Matt
Alexander,
ReplyDeleteWHY ARE PROPERTY RIGHTS NECESSARY?
"Rivalrous means that the use of the thing by one person interferes with the use by another. Super-abundant goods, like atmospheric air, are not rivalrous. My breathing does not interfere with anyone else's breathing. So, there is simply no need to establish a property right."
Here you recognize that property rights are not necessary in things that people can use at the same time without interfering with each other. But what constitutes interference? A man may want the use of atmospheric air to himself and, seeing you breathing, accuse you of interfering with his use. Yet the fact remains: because of the nature of physical reality, you breathing atmospheric air does not interfere with his ability to do the same.
Hence, whether something is rivalrous does not depend on what purpose anyone has in mind for it; whether something is rivalrous depends on its physical nature.
PRODUCER GOODS VS CONSUMER GOODS
"It is argued that intangible goods (songs, stories, movies, computer games, software, etc.) are super-abundant, like a 'magically reproducing lawnmower' (see Kinsella). I will show that this assertion is based on a failure to distinguish between producer goods and consumer goods. Once the 'use' of producer goods is understood, it becomes clear that intangible goods are rivalrous, justifying intellectual property (IP)."
Here you admit that your justification for "IP" rests on "use." Unlike rivalrousness, whether a good is a producer or consumer good has nothing to do with its nature; human actors determine the status of a good based on their subjective valuations, and a specific good can be both a producer and consumer good at the same time.
For the purpose of economic analysis, it can be useful to distinguish between producer and consumer goods. However, when it comes to assigning property rights, this distinction is unnecessary and nonsensical. Things do not morph from being rivalrous to non-rivalrous based upon how they are subjectively viewed by human actors.
WHY BETTY'S ACTIONS VIOLATE JOHN'S PROPERTY RIGHTS
"Suppose Betty noticed that John was only operating his factory 8 hours per day. Late one night, Betty sneaks into the factory. Using her own raw materials and her own labor, Betty runs the assembly line and produces some new bicycles, which she carts away before John returns the next morning.
Has Betty stolen anything from John? Has Betty done anything wrong? Betty may argue that she did nothing wrong. After all, John was using his factory only during the daytime, so Betty’s use did not interfere with John’s use. John is still free to use his factory just as before.
I hope that the flaw in Betty’s argument is apparent. Betty may not have stolen anything from John, but she trespassed. The reason trespassing is wrong is that the owner of property is entitled to exclude others from using it, even when not using it himself. The owner is entitled to 100% of the use. Betty may assert that she did not interfere with John’s use, but properly understood, she most certainly did interfere. Before Betty’s trespass, John enjoyed 100% of his factory’s productive capacity. Afterwards, it was something less than 100%."
John is the owner of the physical factory, and hence has the right to exclude others from using it. A factory, by its physical nature, is a rivalrous good. Betty of course trespassed, but she also interfered with John's use of his factory because, at the very same time that he was using it in the way he wanted (vacant, machinery off, lights out, etc.), she used it for her own purposes (occupied, machinery on, lights on, etc.). "Productive capacity" has nothing to do with why Betty's actions constitute violations of John's property rights.
(continued...)
(part 2...)
ReplyDeleteA FALSE ANALOGY
"'Think This Through' exists as a digital file on John’s computer. The master song file, the computer, and a stack of blank CDs are like a factory assembly line. With electricity to run the machine, and John’s labor, he can make 48 copies in an 8-hour day.
John owns all 48 CDs produced each day. If he sells a CD to Betty, then Betty owns that one CD. Betty is now free to play her CD whenever she pleases. But in no way does Betty own any part of the productive capacity in John’s factory. When it comes to music, the difference between the producer good (the original song) and the consumer good (a copy of the song) is not obvious, because the copy can also be used as an original. But the difference is real, and crucially important:
No matter how many bicycles come rolling off the assembly line, there is still only one factory.
No matter how many copies of the song are made, there is still only one song."
In your example, the factory is analogous to the computer, not the song. Just as the physical factory that John owns is one factory, the physical computer that John owns is one computer. The factory can be used to make bicycles (containing bicycle designs) and the computer can be used to make CDs (containing songs). Just as there can be other factories making bicycles, there can be other computers making CDs.
Saying "there is still only one song" is like saying "there is still only one bicycle design." This in no way proves that assigning property rights in bicycle designs or songs is necessary.
WHY BETTY'S ACTIONS DO NOT VIOLATE JOHN'S PROPERTY RIGHTS
"Suppose Betty noticed that John was using only his own computer to make copies of 'Think This Through'. Betty buys 1 CD and extracts the digital file from it. Using her own computer, her own raw materials and her own labor, Betty burns new CDs. Has Betty stolen anything from John? Has Betty done anything wrong?
Betty may argue that she did nothing wrong. After all, John was making CDs with his own computer, so Betty’s use did not interfere with John’s use. John is still free to use his computer just as before.
I hope that the flaw in Betty’s argument is apparent. Betty may not have stolen anything from John, but she trespassed in intellectual space. She could not have made the copies of 'Think This Through' without first venturing on to John’s intellectual property without permission.
The reason trespassing is wrong is that the owner of a property is entitled to exclude others from using it, even when not using it himself. The owner is entitled to 100% of the use. Betty may assert that by making copies she did not interfere with John’s use. But properly understood, she most certainly did interfere. She interfered with the producer use, not the consumer use."
John is the owner of the physical computer, and hence has the right to exclude others from using it. A computer, by its physical nature, is a rivalrous good. Betty did not trespass to obtain her CD; she purchased it. Betty's later use of her computer in no way interferes with John's use of his computer because, at the very same time that he can use his computer in the way he wants, she can use her computer for her own purposes. Whether John views his computer as a producer good has nothing to do with his property rights in it or things created with it.
(continued...)
(part 3...)
ReplyDeleteCONCLUSION
Human actors determine the status of a good based on their subjective valuations, and a specific good can be both a producer and consumer good at the same time. Since things do not morph from being rivalrous to non-rivalrous based upon how they are subjectively viewed by human actors, trying to assign property rights by distinguishing between producer and consumer goods is nonsensical.
The paradigm of "Intellectual Space" is a failed attempt at creating a justification of "IP" and could not possibly be implemented. Property rights are only necessary in rivalrous things, and whether something is rivalrous does not depend on what purpose anyone has in mind for it; it depends on its physical nature. The theory of "Intellectual Space" attempts to create artificial "rivalrousness" and to give some people a negative servitude over the peaceful use of the physical property of others. Hence, it is a dangerous idea that undercuts legitimate property rights.
-Steve
IP RIGHTS ARE IN CONFLICT WITH ACTUAL PROPERTY RIGHTS
ReplyDeleteLet us suppose that there is a person called Robert. Robert used his own property to buy a computer, some musical instruments and some CDs. This computer, the musical instruments and the CDs are his property and thus he has the right to use them in whatever way he wishes. Robert hears some music being played by his neighbor John and likes the music very much, so after a few attempts he successfully plays identical music and records it onto a CD, which he then begins making copies of for his friends. John notices that one of his friends who is also a friend of Roberts is playing a CD with his song on it, but he didn't buy the CD from John.
At this point John confronts Robert with his "trespass onto intellectual property space." John makes the argument that Robert has interfered with his usage of his IP, by reducing his ability to produce copies of his song to below 100%, even though he hasn't reduced the actual number. Robert merely replies that John's prohibition of Robert recording the song himself and making his own copies of the song would reduce his capacity to use his own property (computer, musical instruments and CDs) below 100%. In other words Robert's inherent right to use his property however he wants is diminished if John's IP rights are enforced and likewise John's IP rights are diminished if Robert's property right's are enforced.
"Regular" property rights and IP rights cannot co-exist within the same social/legal/philosophical/moral system, because they inherently conflict with each other, in much the same way that supposed "rights to a fair share" inherently conflict with actual property rights.
ADDITIONAL REASONS WHY IP VIOLATES ACTUAL PROPERTY RIGHTS
Let us suppose that there is another person named Shelly who lives 50 miles away from John, Robert, Betty, etc. She independently writes a song called "Think This Through" that is exactly the same as John's song and makes some copies to sell. Both John and Shelly decide to expand the market for their CD sales by having a fair in the same town that is between where they live. Who has violated who's IP here?
In any reasonable conception of actual rights, neither person has violated the other's rights in the slightest. However, if IP were in any way actually enforced, then whichever one of them had "registered" their song first, or whatever would legally have the right to stop the other from utilizing their own original ideas, and by extension limit their usage of their own property; a.k.a. they would legally be allowed to violate the other's property rights.
Let us suppose that there is another person named Alex who hears both of the (identical except for singer) songs and decides to make his own song, which is extremely similar, but slightly different. Is Alex violating his/her/their IP by doing so? How much "Intellectual Space" does one idea take up? When an idea is homesteaded by a person, do they only homestead the exact manifestation of that idea, or also everything related?
There are no hard and fast rules that are even possible with any conception of IPs, because they just don't exist. IPs can only ever be a monopolistic creation of the state.