Imagine this scenario:
After
many long years of intellectual and emotional struggle, writer John G.
has finished what he is certain will be a bestselling novel. Everyone
who has read the book has praised its originality, its style, its
thoughtful content.
JG
sends his carefully prepared manuscript to a nationally renowned
publisher. He can hardly contain his impatience while awaiting a
response. Poverty has dogged his heels for so long, he finds it
difficult to imagine what a financially comfortable life will be like.
Two
months stretches into three, but — finally! — the mail brings a reply.
Even as he gathers up that day’s deliveries, however, JG feels the pit
of his stomach grind hollowly. Rather than receiving a slim envelope
from the publisher containing an acceptance letter and contract, his
complete manuscript has been returned.
Sickened,
he reluctantly opens the package. Atop the pile of paper that is the
culmination of his life’s dreams, ambitions, and hard work rests a
letter from the chief editor. Oddly, though, the “rejection” begins
with effusive praise for the exciting story, the well-rounded and
intriguing characters, and the thrilling yet unexpected twist at the
end.
Puzzled,
JG continues reading. If the editor found the tale so enthralling, why
did he return the manuscript? He skims the last few paragraphs. What he
reads sinks into his soul like a dagger plunged into his heart:
...as per our obligation, we are returning your property, that is, the physical manuscript...
...cannot own ideas...
...no ownership or property rights in intellectual undertakings of any kind...
...will be publishing the ideas expressed on these pages under a house name...
...not
any disrespect for you since you possess no property or legal rights to
ideas of any kind, including those ideas contained on these physical
pages...
...not
committing fraud against you or our readers, either, since such a
violation is only possible if we pretended to own or have property
rights in something that is owned by you. But clearly you do not and
cannot own any ideas, only the physical pieces of paper which you
submitted to us...
...the notion that intellectual property rights exist is a fallacy...
...but
we do respect your property rights in physical objects, hence we are
returning your property — this physical set of papers — to you...
...thank you for contacting us...
As
the frigid numbness of disbelief, anger, and utter amazement sapped his
strength, JG let the thin sheet of paper slip from his fingers and
drift lazily towards the floor...
#
Frankly, it’s amazing what some libertarians will believe.
A
recent spate of untenable arguments supporting the erroneous notion
that intellectual property rights do not exist has oozed across my
computer screen. Part of me is astounded by the statements promulgated
by some of these writers. Part of me is unsurprised by these errors,
since many if not most of those I have seen railing against
intellectual property rights commit similar fundamental mistakes in
asserting the intellectual coherence and propriety of anarchy. These
writers miss a principle that underlies (or should underlie...) all discussions about “property”:
All property is intellectual.
So
thoroughly has the Marxist “labor theory of value” permeated the fabric
of our society — the false idea that a “value” results solely from
one’s physical labor and that this value is “intrinsic” or inherent in
some “physical” object that results from that labor — that even
individuals who purport to defend freedom and its prerequisites fall
unwitting victims to the infectious taint that has brought untold
misery to countless billions of people.
It
is not physical “labor” that forms the foundation for human values. It
is not physical “labor” that forms the foundation for property (as one
particular type of value). As important and necessary as action
(physical “labor”) is for instantiating our values, the truly
indispensable factor in value of any kind is the human mind, i.e., the human intellect.
Again, with feeling...:
ALL PROPERTY IS INTELLECTUAL.
In order to defend the untenable, those against the existence of intellectual property tie themselves into intellectual knots.
Consider these quotes from a couple of representative articles:
“...a
[broadcast] frequency is not a physical object but rather an abstract
property of all waves. It is the land over which that frequency is
broadcast that is owned... Ownership...is ultimately a property right
over a region of space.”
“...only physical things, which can actually be fought over,...are owned.”
“...ownership is not necessarily over entire objects but rather over decisions to be made with regard to them. An object can be owned by many different people...”
“Intellectual property is, like socialism, a kind of slavery... [and] is a claim over the entire universe.”
“A
piece of physical property is only in one place at a time, and one can
chase after it if it is stolen, but an idea can disperse in an
unlimited number of directions at once. An idea can be everywhere on
the planet in a matter of minutes.”
“Intellectual property is necessarily a statist doctrine.”
“...ideas
are said not to be the object of intellectual property. And yet,
ultimately, it is ideas that are at issue. For what is a ‘form or
expression of ideas’ if not an idea? And what is a ‘practical
application’ of an idea if not an idea?”
The
source of property is the “Prior ownership of the inputs through
purchase, gift, or original appropriation. This is sufficient to
establish ownership of the output. Ideas contribute no necessary
additional factor.”
“[A
person] has a perfect right not to sell or share any thoughts he has.
But if he does release a thought, people will have mental copies of it
and those mental copies are now theirs.”
“Putting
your name on something someone else has written is fraud against your
customers, not a violation of intellectual ‘property.’ Noncoercive
social action (exposure, boycott, ridicule, etc.) is more than up to
the task of ‘retaliating’ for such uncouth behavior.”
“...one
of course has a property right in one’s manuscript or drive, but why
call that intellectual property? One owns a manuscript because one
owned the paper or drive first. But it still is an error to say one
owns the ‘ideas.’”
Oy.
Lessee... Writer One...
[First of all, a “frequency” is not an “abstract” characteristic of waves. It is an actual trait. (Nonphysical does not equal abstract.)]
This
writer claims that “only physical things” can be owned. First he says a
broadcaster “owns” the “land”...but, no, he doesn’t own the physical land but only a “region of space,” a nonphysical thing. But, wait, the broadcaster doesn’t own the thing itself
in its exclusive entirety, but what he “owns” are the “decisions” made
about the object...even though a “region of space” still is not an
“object.” And even though this land region of space object
whatever can be owned — and ownership of something confers control over
that thing — somehow, some way “an object can be owned by many
different people...” Also, if property is only that which is physical,
how does one “chase after” a “region of space”? Indeed, how does one
“steal” a region of space and cart it off to a new location, a new
“region of space”?
And even though all rights are contextual, we get the straw man argument that intellectual property rights necessarily entails control of “the entire universe.”
As for Writer Two...
He
first commits the “fallacy of composition,” illicitly maintaining that
all ideas are identical in nature, that what is true of one idea is
true of all ideas; that no valid distinctions can be made among any
referents of the concept “idea.” But, of course, to this author, ideas
are irrelevant to an understanding of “property.” Ideas are in no way
“necessary” to establish what should count as “property” and what
should not. Only “prior ownership” or “original appropriation” of
“inputs” is required to establish that an “output” will qualify as an
instance of “property.” Pick up a “wild” object and, voilà,
one has created “property.” No ideas need apply. Indeed, since ideas
are an unnecessary “additional factor” to understanding property, then,
by golly, when a bird picks up a seed, it owns that seed. Indeed, by this “reasoning,” since ideas are not required for understanding “property” and “property rights,” then any animal
can qualify to “own” “property” and thus to possess “property rights,”
as long as another animal either gives the animal in question the
“input” or the animal finds the “input” somewhere in nature.
As
for my initial example of poor ol’ writer JG, why, he “owns” the
physical manuscript he sent to the publisher, but that is the only aspect of the situation he can claim as his “property.”
He can’t claim the story as his property. A story is a set of ideas.
He can’t claim the particular plot twists he invented as his property. A plot is a set of ideas.
He can’t claim the particular characters as his property. Fictional characters are merely a set of ideas.
He
can’t claim he has a right to have his name attached to any physical
object produced from his ideas. After all, the only thing he can claim
as his physical property is the manuscript, and that was returned to
him complete and whole.
He
can’t claim he has been plagiarized. Plagiarism (“the practice of
taking someone else's work or ideas and passing them off as one's own”)
does not exist for anyone at any time because in the fantasy realm of
the “no intellectual property” movement there is no such thing as
“ideas of one’s own.” The ideas JG placed on paper instantly become “copies” in the editor’s and publisher’s minds and “belong” to them — “are theirs”
— from that instant on. They have done nothing “uncouth.” (This point
of Writer Two’s, of course, begs the question how ideas can be “one’s
own” when no one can own any idea. Writer Two also engages in the
fallacy of the stolen concept by implying that one can legitimately
“sell” his ideas...but no one can properly “sell” what is not his
property, what he does not own by right.)
JG
can’t claim that the publisher and editor are committing fraud — that
is, “a person or thing intended to deceive others, typically by
unjustifiably claiming or being credited with accomplishments or
qualities” (for example, committing forgery, i.e.,
pretending to be someone else to access that person’s money via a bogus
check with a forged signature) — since JG’s only property is the
physical manuscript he sent to the publisher...and that was returned
whole and intact.
(Compare JG’s case to the frequent example offered against intellectual property
rights of copying an mp3: the original remains with the creator but now
unlimited others can also have a “copy” of this mp3 since possessing
such a copy deprives the creator of nothing...since the creator cannot
“own” an idea [which at its root is what music is] and he retains his
original copy unaltered and unharmed.)
In this light, it is impossible
to defraud customers over a thing that no one owns, that is no one
else’s property. To claim otherwise is a category error. The existence
of fraud requires that someone’s property rights are violated. For JG
to be harmed, for fraud to occur in relation to something he wrote, it
would have to be possible — in some
context — for JG to claim “ownership” of his ideas, to have some
property connection that could be hidden or distorted by another
person. But that cannot be, so say the anti-IP folks. So, the editor
and publisher can legitimately take JG’s ideas — or, indeed, those of
any bestselling writer — print them in a book, put whatever name on
those physical objects they desire (a name on an article or a novel is,
in this reality, meaningless if a writer is merely placing on paper
what he does not own), and offer those physical things for sale.
Indeed,
anyone can take any piece of writing or music or art, exactly reproduce
it as many times as he cares to, change it, put his own name on it, and
post it on the Internet without acknowledgment of who originally
created it since the “copy” is “his” (to
paraphrase Writer Two) and this new person can do anything he wants
with that song, that painting, that novel, just as a person can do
whatever he wants with anything that is incapable of being owned by any
particular person. It is a self-contradiction to claim that
intellectual property rights are nonexistent and simultaneously claim
that anyone can commit fraud against a user of ideas. If IP rights do
not exist, then no fraud is possible against either the manipulator of
unownable ideas nor against customers who are merely purchasing a
physical or digital copy of ideas that are unownable.
JG can’t claim his reputation is “damaged” by what the editor has done.
“Reputation” is an idea, not a physical thing. It can’t be owned. No
one has property rights in his name, his reputation, his ideas.
According to the anti-IP crowd, a reputation is no more ownable or
subject to fraud than any other idea. Hence, one has no “ownership” in
one's reputation nor recourse to what others do to what one does not
own.
Right?
Right...
But all this “intellectual property does not exist” brouhaha is incoherent, of course.
One more time:
ALL PROPERTY IS INTELLECTUAL.
The
essence of property (and its concomitant rights) is a human’s
intellect, a human’s mind. The concept of “property” arises from the
principle of self-ownership, a fact which (again) flows from the
fundamental nature and requirements of our minds,
our volitional, conceptual type of consciousness, the basic trait that
separates us from all other animals. We are the only animal that can
own property or possess property rights...and that is because of our intellect, NOT primarily because of our physical
nature or its requirements. The anti-IP crowd echoed by Writer Two
self-contradictorily declare that the mind and its ideas are irrelevant
to the concept or existence of property. (Remember? “Ideas contribute
no necessary additional factor.”)
As Ayn Rand said, intellectual property declares that what is essential to the production of values is thought
— an idea — and not merely the physical effort ultimately required to
produce that value or property. To claim that all property is only that
which is “physical” is implicitly to endorse the “labor theory of
value.” That
falsehood — the foundation of the anti-intellectual-property movement —
is what is really incompatible with freedom, is what is “necessarily a
statist doctrine.”
Contrary
to Writer Two, not all “ideas” are the same. A fundamental idea — say,
special relativity — is not the same in kind or in quality as the particular manner in which I explain that idea.
It is true that no one has an ownership right to an idea that is inherent in nature, i.e., to a discovery, an identification
of some aspect of the universe that occurs independently of human
existence, of human thought. A person can have a property right only to
an invention, the creation of an X that did not and would not exist in nature on its own without the intervention of a human’s mind, without the use of human thought. A person has ownership to a particular formulation that has a material, i.e., physical manifestation. (For example, no one can own “quantum physics,” but a writer has ownership of his particularized and physical presentation of that idea.) The physical is important, of course. People are not ghosts. We exist in a physical world.
But those who denounce the existence or possibility of intellectual property seek to do the impossible: to sever the necessary bond, the essential connection between “property” and the human mind and the ideas — the concepts — that are the human mind’s indispensable tools. Without the input of a person’s mind, no
property — of any kind — would exist. The intellectual component
involved in making “oil” into a “value” is no different in kind than
the intellectual component of an author in making 100,000 words a
“value” by placing them in a particularized order and publishing a book
(electronic or physical) that contains his individualized presentation.
And since a fundamental “right” is primarily about the ability to
choose how to use
a particular X and less about the X itself, then a creator of property
can set the terms for how others may or may not have access to or use
of that property.
The
erroneous belief that “intellectual property” is a fallacy relies on
the same kind of “concept stealing” and circular argument committed by
adherents who claim that “anarchy” is a viable option for organizing
human society. The latter writers smuggle in the precondition of
“freedom” and a “free market” to make “anarchy” sound plausible then
claim “anarchy” can lead to a “free market” and “freedom.” Those
opposing “intellectual property” similarly claim that only physical
things can be property and that people can have property rights only in
physical things but ignore the fact that a precondition of property and rights of any kind is the existence and conceptual nature of human consciousness/thought/intellect/ideas.
Those
who in engage in these types of arguments want to have their cake and
keep it, too, that is, they want to deny that the concept under
question, i.e., a ”free market” or “property (rights),” depends on a previously established condition or concept, i.e., a free society or ideas (the “intellect”). But reversing or ignoring causation (e.g., claiming that an anarchic-style “free market” leads to freedom or that [physical] property or property rights can exist sans ideas) does not save these propositions from violating the Law of Noncontradiction.
I don’t know what the motivations or goals are of those seeking to eradicate ideas from the nature or origins of “property” and “property rights,” but one thing that no one should forget is that any and all property and all rights are, at their root, intellectual.
#
