Check Your Premises

Noor, from our Skype room (which btw you can join by adding me to your list: francoistremblay28144), has sent a list of questions to Stephan Kinsella. He was so impressed by her questions that he wrote it all up on the Mises Institute Blog. Here are some parts of his answers that I think are especially brillant:

Now ideas — creative works protected by copyright or inventive designs or recipes or processes of patent law — are not scarce resources. Any number of people can have a copy of a song; or can use the same method or design, with their own bodies and property. To assign rights in such things–called “ideal objects”–means setting up enforceable claims in these intangible things–but force is a tangible, real thing that can only be applied to other real (scarce) things. In other words, because ideas are scarce, assigning rights in ideas necessarily is accomplished by assigning ownership rights in scarce resources. So, for example, the holder of a copyright to a novel has a partial ownership right over the bodies and tangible property of everyone else in the jurisdiction, because he can stop them from using their bodies or property in a certain way. The owner of the patent for a mousetrap can stop you from using your own body and wood and metal to make a mousetrap having a similar design to his patented design. But as we have seen above, recognizing such rights contradicts the only just and objective property assignment rule, since it overrides the ownership rights already established in already-owned things. I homestead property, and own it; then someone else acquires some rights to control my property merely by a decree of the state, in effect, merely by their thinking of a way to use their own property, which is not “first use” of the resources they now claim ownership of.

So, in short, the problem with patent and copyright is that it amounts to theft of rights to scarce resources.

And he then shortens the argument to its essence in this way:

Assigning rights to non-scarce things necessarily infringes on rights to scarce things, since IP rights are enforced with force, real force, in the real world, against real things.

He refutes the idea that we own our labour, but also refutes the idea that this has much consequence:

Question 4. What about the argument that people own their minds, so they own the mental products?

This line of reasoning is based on the confusing notion that creation is an independent source of property rights. This error is similar to the confused idea that we own things we mix our labor with because we “own” our labor. We own — have the right to control — various scarce resources, such as our bodies and other scarce resources we homestead or acquire from previous homesteaders. We do not own “labor”; labor is just an action, an activity of the body. To be sure, when one first uses unowned property, and thereby homesteads it, he is engaging in a type of “labor”; but we do not need to rely on the confusing metaphor that we “own” our labor. By working to emborder or possess an unowned resource, one thereby establishes a visible link with the property, thus establishing a better claim than any latecomer, i.e. ownership. This chain of reasoning does not imply or rest on the idea that we “own” our labor.

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So back to your question: we do not own the mental products of our mind for several reasons. First, owning one’s body, just as owning property gives you in effect a (derivative) right to speak on it, allows you to use it to do useful things, such as come up with ideas, or even sell your services, or labor. There is no need to engage in the confusing fiction or metaphor that you “own” your labor, or you “own” the “products” of your mind.

He also talks about the idea of a right of first sale:

As a practical matter, if you have an idea or manuscript, you can use this to leverage payment to reveal it. But if you are foolish enough to let the information become public, it is too late to do this. As Benjamin Tucker noted: “You want your invention to yourself? Then keep it to yourself.”