November 23, 2015

Rethinking Intellectual Property: A Reformed-Libertarian Perspective

By In Articles, Philosophy, Political Theory

Intellectual property is something of a debate within libertarian circles. On the surface of the matter this is surprising. Libertarians are big fans of property, how could they not all support intellectual property? My view is certainly not unanimous amongst libertarians, and perhaps not even this site (I’m not really sure of C Jay’s exact position), and it is certainly a minority position among reformed Christians (with the exception of Vern Poythress). So this article is not necessarily a representative consensus of Reformed Libertarianism™, but it is my personal position and thinking on the matter. I suspect many will be surprised to find the arguments for supposed intellectual property to be mostly utilitarian in nature and the natural rights arguments to be rather weak.

Stephen Kinsella, a patent attorney, has done some of the best work explaining and negating intellectual property (IP) rights, especially in their American legal expression. He explains “In today’s legal systems, IP typically includes at least copyrights, trademarks, patents, and trade secrets…IP rights, at least for patents and copyrights, may be considered rights in ideal objects. It is important to point out that ownership of an idea, or ideal object, effectively gives the IP owners a property right in every physical embodiment of that work or invention.”[1] Copyrights and Patents are by far the most familiar to us but still require more exact explanation of what they are. “Copyright,” Kinsella states, “is a right given to authors of ‘original works,’ such as books, articles, movies, and computer programs. Copyright gives the exclusive right to reproduce the work, prepare derivative works, or to perform or present the work publicly. Copyrights protect only the form or expression of ideas, not the underlying ideas themselves.”[2] Copyrights today last for the life of the author plus 70 years. Patents on the other hand are “ a property right in inventions, that is, in devices or processes that perform a ‘useful’ function.”[3] Patents last from the day of issuance until 20 years after the initial filing.[4]

As Kinsella explains “IP [intellectual property] rights are rights to intangible things —to ideas”[5] and not necessarily in the physical manifestation of  those ideas but specifically a right to the exclusion of other’s use of the idea’s physical manifestation. In its conception it is very Platonic. Plato argued that there is pure being, or the ideal of all things, that each thing has a sort of archetype which it exist out of. There is a chair, and then there is ideal “chairness” of which all chairs share in or are an imperfect impression of . In the case of IP rights, if you were the first person to make a chair you would not own the materials that would make up other people’s chairs but “chairness” or whatever consist in the “chairness” ideal of your design. Even further, suppose you were not the first person to invent the chair but the stool, you now own the idea-pattern of the stool and may exclude others from making a copy or impression of the stool pattern-idea. Further suppose that now someone looks at your design and adding a backing creates the first chair, he now owns the pattern-idea of the chair. However, this doesn’t mean he has the rights to a physical chair because in making it he would partly infringing on the owner the stool patent. Hence IP laws do not grant any kind of physical ownership but only a right to exclude others use of a physically implemented (patent) or expressed (copyright) tangible copy of your pattern-idea, even if created with their own properly owned materials.

Like in many other areas people have taken a utilitarian approach to intellectual property rights. Utilitarian thinking would hold that intellectual property (or any other law for that matter) should be adopted based on what optimizes social utility/welfare according to a cost-benefit analysis. Without IP laws all ideas and works would be public goods which would have a very negative free-rider effect which would take away the incentives for innovation, inventions, and creativity reducing wealth below an optimal level than would have existed with IP laws. As Kinsella summarizes of utilitarian approach “Public goods and free-rider effects reduce the amount of such wealth below its optimal level, i.e., lower than the level we would achieve if there were adequate IP laws on the books.”[6] We need IP law for incentive to builders, inventors, designers, artist, and writers.

This conception of utilitarianism however is both intellectually incoherent and morally bankrupt. First, utilitarianism in not claiming any value judgments but only weighing costs and benefits, is resting on one fundamental and unchecked value judgment about the law, that its highest good or value is to promote the maximum amount of benefit over cost for the highest number of people. As Rothbard says of Mises in his critique of his utilitarianism “uncomfortable as he must have been with making any value judgments even as a citizen, he made the minimal possible degree of such judgments; true to his utilitarian position his value judgment is the desirability of fulfilling the subjectively desired goals of the bulk of the populace.”[7] However utilitarianism itself cannot show that this is the only or the highest goal of individuals or of the law.

From an Austrian-praxeological perspective utilitarianism rests on “making illegitimate interpersonal utility comparisons, as when the ‘costs’ of IP laws are subtracted from the ‘benefits’ to determine whether such laws are a net benefit.” Certainly Reformed Libertarians must reject this and posit that the highest value of the law is justice, come what may:

“You shall not pervert justice. You shall not show partiality, and you shall not accept a bribe, for a bribe blinds the eyes of the wise and subverts the cause of the righteous. Justice, and only justice, you shall follow, that you may live and inherit the land that the LORD your God is giving you.” Duet. 16:17-20

If IP rights do in fact, as I argue, pit actual property in tangible goods against rights in ideas and give partiality to innovators, inventors, artist, and writers than no amount of social benefit conferred by IP laws can justify them.

The question at hand is whether it is justified to use force (through the legal apparatus) against another person to enforce IP laws. Is it legitimate and ethical to coercively extract retribution from another person if they have violated a patent or copyright? Can we threaten them with a gun or a jail cell if they do not comply with IP law? If we can, then an eye for an eye, make them (violently if necessary) pay in proportion to their theft. If it is illegitimate to use physical force against supposed IP violations than extracting retribution by threat of the gun or the jail cell is morally no different from armed robbery or kidnapping. I am not here arguing whether we should obey current IP laws but whether we should have IP laws. If you google search for a Christian perspective on intellectual property the most in-depth ethical analysis you will probably find is some youth pastor’s blog telling students not to burn CD’s of Metallica or the Newsboys. To be clear youth pastors, no one has “burned” a CD for over a decade, and yes there is no reason there should ever be more Newsboys or Metallica in the world. Newsboys is just bad music, and as far as Metallica goes we all know Rock attained perfection in 1974 it’s a scientific fact.

We must look at the very basics of property rights to understand why we cannot own intangible items like ideas. What are property rights, how do we justify property rights, and where does the need for property rights come from in the first place?  A small error in an otherwise decent article on intellectual property by Vern Poythress will introduce the answer and make this clear. He says “The Bible does talk about theft.[But] It is not theft to breathe air or drink water out of a stream, because no human being owns these things. But it is theft to take an ax or a sword or a sheep that belongs to someone else.”[8] This is imprecise. It is not so much that human beings cannot own these things, but that under normal circumstances they are not scarce goods and therefore have no need of being owned.

Certainly people do sometimes own air, and put it into little metal tanks; like scuba divers, sports teams in Colorado, or hospitals. In fact Murray Rothbard has an excellent essay on Law, Property Rights, and Air Pollution which applies homesteading and property rights to air and therefore proposes tort law in response to pollution. It is not that air cannot be owned but that under normal circumstances it exist in such abundance that there is no conflict over its use. In all the above places however air is scarce. Same goes for streams, people often actually do own streams and all the land around it. A rancher may depend on the stream for his herd or flock and be very outraged if someone were to let their animals drink out of it even if they were to do this without trespassing on his land. Someone on the shore of Lake Superior may not have the same vigilance in protecting the water supply.

Where there is no scarcity there is no need for property rights claims to avoid interpersonal conflict. In this we see that avoiding conflict in the control or use of scarce resources is really the essence of the need and use of property rights. Property rights set and delineate clear boundaries on who has ultimate arbitration over a scarce tangible (physical) resource. The reason I say physically tangible goods is not to slip my conclusion into the premise but because only tangible goods may be controlled or used, and therefore may have conflict arrive over its use. Intangible Platonic ideal “chairness” cannot used or controlled, only its physical manifestation that may share in its “essence” can produce conflict over its use. While IP laws are claims made over ideals (non-tangible goods), their only legal claim is the right to use coercion over the physical manifestations of that ideal even over combinations and recipes of another person’s owned materials. Kinsella connects scarcity to conflict, which property rights attempt to solve:

“[O]nly because scarcity exists is there even a problem of formulating moral laws; insofar as goods are superabundant (‘free’ goods), no conflict over the use of goods is possible and no action-coordination is needed. Hence, it follows that any ethic, correctly conceived, must be formulated as a theory of property, i.e., a theory of the assignment of rights of exclusive control over scarce means. Because only then does it become possible to avoid otherwise inescapable and unresolvable conflict.”[9]

The function of property rights is to prevent this personal conflict through visible and just property rights. By visible I mean objective and unambiguous; it must be discernable or observable where your property begins or ends. Think of the use of landmarks in the OT to distinguish property lines in Israel and all the laws and curses against moving your neighbors to increase the size of your own land “Cursed is the one who moves his neighbor’s landmark” (Deut. 27:17). I’m not simply speaking of land however, written contracts and other things also make objective and unambiguous what is yours and how it may be used that are not land.

God has not created everything in nature in superabundance. Our food comes by the sweat of our brow (Gen. 3:8) as we toil under the sun (Eccl. 5:18) not by simply conjuring up the goods we desire by desiring or wishing. This manner of thinking is entirely in keeping with biblical logic as in James explanation “What causes quarrels and what causes fights among you? Is it not this, that your passions are at war within you? You desire and do not have, so you murder. You covet and cannot obtain, so you fight and quarrel,” (James 5:1-2). The nature of conflict between man and man (covetousness, adultery, rape, theft, and murder) is the contradictory wills, or passions, over the contested use of a scarce good and the fact that one man’s use of an item excludes his neighbor’s use of that item and vice versa. However, as Kinsella points out:

“Were we in a Garden of Eden where land and other goods were infinitely abundant, there would be no scarcity and, therefore, no need for property rules; property concepts would be meaningless. The idea of conflict, and the idea of rights, would not even arise.  For example, your taking my lawnmower would not really deprive me of it if I could conjure up another in the blink of an eye. Lawnmower-taking in these circumstances would not be ‘theft.’ Property rights are not applicable to things of infinite abundance, because there cannot be conflict over such things.”[10]

The same can be applied to ideas:

“Like the magically-reproducible lawnmower, ideas are not scarce. If I invent a technique for harvesting cotton, your harvesting cotton in this way would not take away the technique from me. I still have my technique (as well as my cotton). Your use does not exclude my use; we could both use my technique to harvest cotton.”[11]

On the other hand if I were to take not the ideal pattern and method of your cotton harvesting technique but your harvesting machine, you now no longer have it. I have stolen it from you. But as Thomas Jefferson said “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his candle at mine, receives light without darkening me.”[12] Ideas are infinitely reproducible, and therefore fundamentally not a scarce mutually-exclusive good, and the appropriation of them by another is a fundamentally non-damaging act in contrast to all other forms of theft. In appropriating for myself the idea, pattern, or method of which you may be the original creator using my own physically owned materials I make no claim on the possible uses on your idea or the physical materials you own or used in its creation. Conversely in claiming a right to your intellectual “property” you are claiming a partial ownership and right over the control of not only mine but everyone else’s property. Kinsella explains:

“IP rights give to pattern-creators partial rights of control—ownership—over the tangible property of everyone else. The pattern-creator has partial ownership of others’ property, by virtue of his IP right, because he can prohibit them from performing certain actions with their own property. The pattern-creator has partial ownership of others’ property, by virtue of his IP right, because he can prohibit them from performing certain actions with their own property. Author X, for example, can prohibit a third party, Y, from inscribing a certain pattern of words on Y’s own blank pages with Y’s own ink.”[13]

IP law results in real and actual transgression of tangible property rights claiming at least some control over the use of the property of others while the absence of property rights would result in no material damage to anyone nor contradict other property rights claims allowing full ownership by individuals of their property. What I am arguing is not that you don’t have a right to intellectual property but that there is no intellectual property, that it is precisely a non-ownable thing. All arguments for intellectual property end up being subjective, ambiguous, contradictory, and arbitrary. Non-tangible ideas are not things in which we can have property and cannot be made to fit to the requirements of property rights above.

What most would argue in a half utilitarian/natural rights argument is that you have some sort of right to the value of your work or your creation–to its potential income. You have expended great intellectual effort, mixed your labor with the resources you own to come up with this design, and ought to reap the benefits. You ought to own the fruits of your labor. However we do not own the value of our property, but the physical thing itself. Value is subjective to individuals, and is determined by a variety of conditions and goals subject to change. Monetary value simply means the amount money other people are willing to pay for your good. How could one possibly own or have a right to someone else’s valuation and appraisal at a given moment? We do not own the value of our property but its physical integrity. Hoppe explains:

“[S]ince according to the principles of the natural theory of property every natural owner is only protected against physical invasion and the non-contractual acquisition and transfer of property titles, it also implies that everyone constantly and permanently runs the risk that through changes in demand or actions which other owners perform with their property, property values will fall below their given level. According to this theory, however, no one owns the value of his property and hence no one, at any time, has the right to preserve and restore his property values.”[14]

Any uninvited harm to the physical integrity of the property of the natural owner is an aggression against him. It is theft, and it may entitle him to retribution in the form of monetary compensation, but there are non-aggressive ways that lower the going market price of a good (value and monetary price are not equivocal) while leaving its physical integrity perfectly intact. Any baker who starts a shop within any remote distance of another baker is “threatening” that baker’s future income. People as a whole may simply change their minds, and not value goods as much as they use to. It may become obsolete, it may be found to be hazardous to one’s health, or it may become of such abundance due to natural discovery that the money price plummets.

We can see the absurdities of IP simply by treating it just the way we would any other piece of property. There are several aspects of IP and its expression in American law which shows it to be a truly foreign, imposed, and unnatural right. One instance is the near universal recognition of the need for term limits betrays the fact that this is not in fact a natural right, since true property claims do not expire, but an artificially imposed monopoly:

“Moreover, adopting a limited term for IP rights, as opposed to a perpetual right, also requires arbitrary rules. For example, patents last for twenty years from the filing date, while copyrights last, in the case of individual authors, for seventy years past the author’s death. No one can seriously maintain that nineteen years for a patent is too short, and twenty-one years too long.”[15]

In addition to the arbitrary setting of limits and terms IP laws are distinct in their virtual need for a centralized title recognition, collection, and enforcement agency. Unlike most items we own which are clearly marked by our use, storage, or boundaries and can be enforced as property in a decentralized independent fashion at an interpersonal level rather easily. IP claims, because they are intangible, require a large, centralized, and singular institution which has ultimate judgment on IP claims and enforcement. Some non-libertarians may not care about this fact but it is important to note in that it differentiates IP claims from typical property rights.

Thirdly, IP law (at least in the US) relies on spurious distinctions between “creation” and “discovery” or between “practical” and “theoretical” which cannot be justified. As Kinsella argues “No one creates matter; they just manipulate and grapple with it according to physical laws. In this sense, no one really creates anything.”[16] The distinction between what is “practical” and therefore valuable, versus the “merely theoretical” is subjective and arbitrary. As Rothbard points out all this distinction has done is to shift the type of research and development that is undertaken.[17] Even the U.S. Supreme Court has noted that “[t]he specification and claims of a patent . . . constitute one of the most difficult legal instruments to draw with accuracy.”[18]

In the fourth place, I argue that both the “first to file,” and the “first-to-invent,” system are patently (ironic, no?) unjust. Suppose we have two identical twin brothers who have been separated at birth. Independently and unaware of the other both have become mechanical engineers in a similar field working for two nearly identical companies. They are both working on similar machines that will perform an important function. Their lives, education, and personalities so mirror each other that they are at identical stages in the invention process of these nearly identical machines. In the “first to file” system the brothers may finish the invention at the same time may leave for patent office at exactly the same time but because the one is held up in traffic the other may become the owner with full rights to the invention. If one mistakenly uses Locke or Rothbard to conclude that owning and mixing their labors has given them a right to property in the concept of an invention how can one brother own it and the other not? Both have done the work, and both have expended their labor. How is it any more just to use a “first-to-invent,” (like the U.S.) a similar scenario may still apply. People working in obscure fields may not even be aware of prior invention and may come to a similar design. Both did all the work and have all the elements of what people normally suppose constitutes IP rights.

These may be reductio ad absurdums but they demonstrate the unworkable inner contradictions of claims to intellectual property rights. Imagine a simpler Robinson Crusoe scenario. Suppose Crusoe and Friday are not simply stranded on an island but also part of the very early history of man with little knowledge of any tools. After months of hunting and gathering on the island the two have saved resources and begin to try their hand at farming, only they have no tools. Through months of trial and error Crusoe has fashioned from strange metal the rudimentary beginnings of the double-angled plow. By using fire to soften the metal, hitting it with a rock, and attaching it to a large stick he is able to turn up soil of the hard ground of the island. Perhaps he is able to farm on parts of the island that were not possible before. Crusoe crops nearly quadruple in size. Friday sees Crusoe using his new plow, studies it, and makes a remarkably similar one using wood, rock, and ore that he had found on his land. Does Crusoe have the right to order him not to use the plow because he clearly copied his design? Can Crusoe set terms of Friday’s use of the plow, perhaps demanding an initial or ongoing payment of berries for the “rights” to the plow made of Friday’s own resources?

Robinson Crusoe’s claim seems to have the elements of modern argument for intellectual property. He is in a sense the intellectual homesteader of the plow. He has mixed his labor with his resources and created an item of tremendous value. It is “a useful, concrete and tangible result.” But certainly Friday may object that Crusoe still has the very same plow that he worked to create, and Friday himself had to gather all the resources and fashion his. Friday will no doubt argue that he has in no way harmed Crusoe. Should Friday be banned from the incredible harvest now made possible simply because Crusoe thought of it first? Even more pressing to the matter can Crusoe use physical force to assert his new found IP claim? Can he: take the plow Friday has made, threaten to tie Friday to a tree if his does not stop, or may he beat Friday for his continued neglect for Crusoe’s property right? Now, if Friday had simply walked over onto Crusoe’s land and taken his plow, then certainly he would be justified in taking the plow Friday had appropriated to himself, but Crusoe has no such grievance. At what point is Crusoe entitled to impose by physical force this property right to the design of the plow or the value of the plow? If not with a simple scenario as this what if there were more actors on the island and they had developed some sort barter economy, and eventually begun to use coconuts as money.  Does Crusoe now have a natural right to the value in coconuts of the excess marginal product created by his new plow invention? May he now gather the other members of the island together and force Friday to participate in their primitive conception of intellectual property? I propose that Crusoe has no material grievance against Friday, and that at no point in any of these scenarios can he possibly be justified in using physical force or coercion against Friday.

If we do away with arbitrary terms of patent and copyright so that they could end in the same manner as physical property (namely transfer of title to another), and we did away with arbitrary distinctions between creation and discovery or between practical and theoretical, we would see that something as simple as rubbing two sticks to start a fire would be the property of an original neanderthal and his descendants who created this method. We would have to have permission or pay rights in order to have a campfire. Are we not glad that the first person to invent the wheel did not have such notions of intellectual property to start swinging his club at anyone who attempted to benefit from its genius and warmth? “Such unbounded ideal rights” says Kinsella “would pose a serious threat to tangible-property rights, and threaten to overwhelm them.” Virtually all uses of one’s property, arrangements or production, or even the simplest drawing would “be bound to infringe upon one of the millions of past, accreted IP rights, and the human race would die of starvation.”[19] As the preacher says “What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun. Is there a thing of which it is said, “See, this is new”? It has been already in the ages before us.” (Ecclesiastes 1:9-10).

A consistently applied natural rights theory of intellectual property is impossible and contradicts property rights of real and tangible goods, and thus all IP advocates adopt spurious distinctions, arbitrary terms, limits, and restrictions. It is not so much that I think Reformed Libertarians should be against intellectual property rights but that intellectual property is not a thing. To whatever degree intellectual property rights are embraced it will always mean that actual property rights are diminished. Intellectual property cannot cannot pass the muster of biblical natural law property rights.

[1] N. Stephen Kinsella, Against Intellectual Property (Ludwig von Mises Institute, 2008) 14-15.

[2] Ibid, 10.

[3] see 135 USC § 1 et seq.; 37 CFR Part 1

[4] Kinsella, 10-11.

[5] Ibid, 9.

[6] Kinsella, 18.

[7] Murray N. Rothbard, Praxeology, Value Judgments, and Public Policy in The Foundations of Modern Austrian Economics, Edwin Dolan, ed. (Kansas City: Sheed and War, 1976), pp. 89-111.

[8] Vern Sheriden Poythress, Copyrights and Copying: Why The Laws Should Be Changed, http://www.frame-poythress.org/copyrights-and-copying-why-the-laws-should-be-changed/

[9] Kinsella, 29.

[10] Kinsella, 31.

[11] Kinsella, 32.

[12] See http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html

[13] Kinsella, 35.

[14] Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics, The Ludwig von Mises Institute’s Studies in Austrian Economics (Boston: Kluwer Academic Publishers, 1989) 94-95.

[15] Kinsella, 25.

[16] Kinsella, 24.

[17] Murray N. Rothbard, Man, Economy, and State, pp. 658–59.

[18] See Topliff v Topliff, 145 US 156, 171, 12 S.Ct. 825 (1892).

[19] Kinsella, 24.

Written by Brian Jacobson

Brian Jacobson works as a quality technician for a manufacturing company in St. Louis, Mo where he lives with his new bride. He studied biblical and theological studies at Reformation Bible College under R.C. Sproul in Orlando, FL. He’s an Old-School Presbyterian who enjoys the simple means of grace, Machen, and living the high life on a budget. Follow him @briankjacobson on Twitter.