Copyright Discussion with Ryan Griggs

Ryan Griggs has offered his comments about copyright, libertarianism, and my direct, logical proof that intangible works are best understood as factories. Griggs:

There's no discussion of what makes production 'mass' production. Logical deduction builds seamlessly, one analytical step on another. The chain is broken. This isn't (logical)deduction. It's assertion. There goes “logical." 

Factories aren't created by homesteading. Homesteading is the acquisition of previously unowned resources. It's one of three ways of legitimate property acquisition. Is the creation of a factory traceable far back through time to the first instance of homesteading of that land upon which it sits? Sure. But that has nothing to do with the argument. There goes "direct."

"Production" is the rearrangement of rightly owned matter into a more useful configuration. An arbitrary border is ascribed to separate the new configuration from the rest of the universe, and the matter within the border is termed a "good". The newly-produced good can be said to have been "created", or "brought into existence", but in the physical sense, the producer has created nothing. The newly-produced good  is just a re-arrangement of pre-existing matter. In the economic sense however, production is creation.

Rather than "creation", I often use the term "homesteading" to refer to such an act of production, because it serves as a reminder that transformation, not discovery, is the crucial element in original appropriation of property. Since the newly-produced economic good was brought into existence, it was not previously owned, thus the producer has rightly acquired title to something previously un-owned. Whether to use the term "homesteading" in this context is merely a semantic problem. Libertarians agree that producer owns product.

All economic activity is aimed at producing consumer goods - things that are directly useful to individual humans. However, many goods are produced that are not directly useful to individual humans, but rather are themselves useful in producing consumer goods. Such indirectly useful goods are called "capital goods", or "producer goods".

"Mass production" occurs when, by virtue of the existence and use of a capital good, many identical instances of a consumer good are produced (or "manufactured", or "brought into existence", or "homesteaded") faster and less expensively than what could possibly occur absent the capital good. Since mass production is impossible without use of the capital good, the existence of many identical instances of a consumer good implies the existence and use of a capital good.

This sentence is literally unintelligible: "Writing and recording the song must be viewed as the homesteading of a factory, because it is precisely this human action that makes mass-production possible." Writing is the same as homesteading a factory? What? The act of recording sounds is homesteading a factory? Huh?

Yes, writing and recording a song is the production (or "creating", or "homesteading", or "building", or "making', etc. ) of a factory, because it makes mass production possible. Prior to the writing and recording of the song, if you wish to enjoy a music performance, you must first do the hard work of producing (or "creating", or "homesteading", or "building", or "making', etc.) your own new piece of music. Production must always precede consumption.  You are free to make your own original music, just as you are free to build your own car from scratch. You will find it is enormously less expensive to buy a copy of a mass-produced car.

How in the world is copying something in violation of a contract "trespass?"

Contract law covers disputes between people who already have a contract between them. It is important to keep in mind that one may only contract with one's own property. Contracts to buy, sell, license, or copy intangible works must be based on an underlying property right. So, copying a song in violation of a contract would be a breach of contract, not trespass. 

Tort law covers disputes between people with no contractual relationship. Copying by a person with no contractual relationship is known as "copyright infringement", best understood as trespass (not theft). Unauthorized copying is trespass because it is the use of a capital good owned by another. Copying interferes with the owner's use because it reduces the owner's use below 100% of the maximum possible use.

Trespass is the violation of the physical borders of another's private property (stepping into someone's home, taxation, etc.).

If you define trespass as the violation of the "physical" borders, you have simply smuggled your desired conclusion (property must be physical) into your premise. That's the oldest trick in philosophy.

Copyright' literally means the right to copy. If a seller of a good, say, a bit .mp3 data says prior to the sale that as a condition of sale the buyer may not 'copy,' that is, create an identical .mp3 file from the one that is being sold to him, we may say that the seller of the file is retaining 'copyright.' If the buyer agrees to the sellers condition, then he is bound by this condition. In other words, the buyer has agreed to a contract in which he receives a certain file *conditional on* his never 'copying' it. That's the proper libertarian analysis of copyright.

 This is why Rothbard said copyright was legitimate in a libertarian society.

One may only contract with one's own property. If there is no property right in the pattern of information, then there is simply no basis to form the contracts that Rothbard describes. In the real world, relatively free people do indeed form contracts to buy, sell, license, copy, and refrain from copying intangible goods. Intangible goods get delivered to happy customers millions of times per day, every day.

[The legitimacy of copyright] has nothing to do with mass production, or factories, or homesteading, or acts like writing or recording.

The human action of writing and recording a song is producing ("homesteading", "creating", "making" ) of a good. "Mass production" and "factories" are crucial to the understanding, because the song can function as a consumer good (for listening) or as a capital good (for mass producing copies). The writer ("homesteader") can sell you the consumer good (one song copy for listening), without selling you the capital good (the factory for making many copies).

Selling the consumer use of a thing while retaining the producer use of the thing is not unique to intangible goods. For example, it is very common for housing developers to sell a new house on the condition that the mineral rights to the land remain with the developer. If you buy a new house under those conditions, you are free to dig up your back yard to put in a swimming pool. You are not free to dig up your back yard to extract petroleum, that would be a breach of contract. If another unrelated person came to your yard and extracted petroleum, it would be trespass against the property rights of the developer, as well as against you.

Your discussion questions have absolutely nothing to do with whether copyright is valid according to the libertarian. The method of production of a good is totally irrelevant to libertarian analysis of the validity of the sort of transactions that may occur involving that good. The point is that a good is a good, 'mass produced' or not.

You are correct that "a good is a good, mass produced or not". You've ignored the point. The point of noting that song copies are mass produced is that, like any mass produced consumer good, there has got to be a factory somewhere, and the factory is also a good. Like any other factory, a song-master is owned by the person who built it. Making copies is the intended use of the factory, and the factory owner is entitled to 100% of the produce from the factory. Unauthorized copying is the unauthorized use of the factory owned by another, i.e. trespass.

Scarcity - Correctly Understood

All economic goods are scarce

All economic goods are scarce. This simply means that the supply of the good is less than infinite. There is a chance that all of the good will be consumed, making further consumption impossible.

Nothing is ever created or destroyed

The total quantity of matter and energy in the universe is fixed.  Matter can be transformed into energy, energy into matter. All the different chemical elements and compounds, and all forms of energy, are simply different arrangements of atoms (or sub-atomic particles, or disturbances in the Higgs field, or whatever nature's fundamental building blocks turn out to be).  For our purposes here, "atoms" means the fundamental building blocks of nature, and "matter" means any arrangement of atoms, including energy.

In all of history, human activity has never created or destroyed anything. All we do is transform matter as we find it into an arrangement we find more useful. The name given to this act of transforming matter into usefulness is "homesteading", while the useful thing is called a "good".

Elements of a Good 

 

All goods are comprised of two factors:

1. Matter 
2. Human effort

For example, imagine an arrangement of matter called "iron ore" laying inside a larger arrangement of matter called "a hillside". We know that iron can be very useful, because it can be fashioned into a cast-iron skillet, and a zillion other things.  However, this particular batch of iron is not an economic good, because laying undiscovered and dormant in a hillside, the iron is not in position to do us any good at all. So long as the iron lies in the hillside, it might just as well be at the bottom of the ocean, or on Mars, or a distant galaxy. It might just as well not exist at all. In terms of being an economic good, iron in the hillside does not exist. 

To transform iron ore into an economic good, somebody must first discover it, then go dig it up, bring it out, refine the ore, and do all the other things necessary to transform it into something that a person finds useful.

The same pattern - matter + human effort -  holds true for all goods. There is some arrangement of atoms that occurs in nature, and some human effort in transforming the atoms into a different arrangement.

What Causes Scarcity? 

 

Here is the key insight to understanding scarcity:

Matter is infinite, human effort is limited. 

The scarcity of economic goods is completely related to the limitations on human effort, and has nothing whatsoever to do with the quantity of matter.

Consider the organic compound known as petroleum. Petroleum is useful for making gasoline and hundreds of other products. Like any other economic good, petroleum is scarce, and seemingly becoming more scarce all the time. After all, once petroleum is pumped out of the ground, refined into gasoline, and burned up, it is gone forever, right? It's only a matter of time before it is all used up, right? It's tempting to think that the scarcity of petroleum has to do with the limited quantity that exists. But it isn't so.

What we call "petroleum" is just another arrangement of atoms. Burning it up transforms the arrangement, but destroys nothing. Even if we pumped out and burned up every last drop of naturally occurring petroleum, if we wanted more of it, all we would have to do is figure out how synthesize more petroleum from the matter at hand. Doing so may be prohibitively expensive, or even  technologically impossible to accomplish. But all that means is that there is insufficient human effort available to solve the problem. The scarcity of petroleum is not a function of its quantity, even if the quantity goes down to zero. Human effort is always the limiting factor creating scarcity. This is true of iron, petroleum, and every other economic good, without exception.

What About So-Called "Free Goods"?

Atmospheric air is widely cited as the quintessential example of a "free good", meaning that atmospheric air is supposedly non-scarce. But we can see that atmospheric air follows the same pattern. Atmospheric air blanketing planet Earth is not immediately useful. In order to make use of air, a person must bring it under control by inhaling, i.e. flexing the diaphragm muscles, drawing air into the depths of the lung tissue, where the precious oxygen can be extracted and exchanged for carbon dioxide, and exhaled as a waste product.

Every breath you take is an act of homesteading. 

Baker's First Postulate:

 

Every economic good is comprised of two factors - matter and human effort.

Baker's Second Postulate:

 

The supply of matter is infinite and literally inexhaustible, while the supply of human effort is limited.

Baker's Third Postulate:

 

Economic scarcity derives entirely from the limitation on human effort, and has nothing to do with the quantity of matter.

 

Proof of IP Validity

I would like to convince you that copyright is a valid form of property, in accordance with libertarian principles of non-aggression and original acquisition of property by homesteading. I propose the following two axioms.

1. The existence of a mass-produced good is proof that a factory exists. 

2. The existence of a mass-produced good is proof that the factory was used. 

Is there any possible argument against those two claims? I fail to see one. In every corner of modern civilization we see mass-produced goods - food, clothing, electronics, vehicles, medicines. In every case, there is a factory somewhere, transforming some type of raw material with some type of machinery that makes more efficient use of human labor, i.e., a capital good that makes possible the mass-production of a consumer good.

Axiom 1 implies the human action of homesteading 

 

Factories do not occur in nature, they must be created by a homesteader. The existence of a factory implies that an act of homesteading occurred. Prior to the act, mass-production of this particular consumer good was impossible. After the act, and because of the act, mass-production is now possible. According to libertarian property theory, the homesteader rightly owns the factory, and the produce from the factory.

Axiom 2 implies the human action of using  

 

Axiom two states that if a mass-produced good exists, then the factory must have been used. This follows from an understanding of what a factory is. To obtain finished mass-produced goods, there must be an input of some type of raw material, energy, and human effort. Even if the factory is "completely automated", there still must be a human decision to operate.

Thus, on observing the existence of any mass-produced good, the following questions can be asked:

1. Who homesteaded (thus owns) the factory?
2. Who used the factory to make these particular instances of the mass-produced good?
3. Is the person who used the factory authorized by the owner to do so?

If the user is not authorized, then use is trespass.

Application to Copyright

 

Multiple identical copies of a song are an example of a mass-produced consumer good. In light of the above, this proves the existence of, and the use of a factory. When it comes to mass-producing song copies, what exactly is "the factory", and who is using it? 

Writing and recording the song must be viewed as the homesteading of a factory, because it is precisely this human action that makes mass-production possible. Before writing and recording, it was impossible to mass-produce identical song-copies. Now, with the existence of the song-master, it is possible. The creation of a new song brings into existence a mass-production capability that did not exist prior. Therefore the writer is a homesteader, and rightly owns the factory and its produce, according to libertarian theory, just as with any other mass-produced good.

Making copies of the song must be viewed as using the factory, because there is no other way for mass-produced goods to come into existence other than using a factory. The salient question is whether or not the person who made the copies was authorized by the factory owner, for exactly the same reasons as above.

If the user is not authorized, then copying is trespass.

Conclusion

 

Unauthorized copying is trespass.

Discussion Questions

 

Are there any examples of mass-produced goods which do not require the existence of a factory?

Are there any examples of mass-produced goods which do not require the use of a factory?

Is there some sense in which copying digital media files is not mass-production?