Anti-IP arguments can be transposed against property…

The Libertarian Case Against Intellectual Property Rights, by “ancap” Roderick Long, is a somewhat famous article, whose arguments against IP are considered authoritative. My intention is to show that anti-IP arguments can also be transposed against property rights in general, by examining each of them in turn.
(note: the idea for this entry was inspired by db0’s Libertarians and Intellectual Property; check his entry out for more discussion on the subject)

1. The Historical Argument

Here, the “ancap” has a certain advantage: if IP laws were designed as exploitation from the get go, it is likely that property rights were conceived as a tool of equality. Its founders simply could not foresee where such rights would lead. As Proudhon discusses in What is Property:

Agriculture was the foundation of territorial possession, and the original cause of property. It was of no use to secure to the farmer the fruit of his labor, unless the means of production were at the same time secured to him. To fortify the weak against the invasion of the strong, to suppress spoliation and fraud, the necessity was felt of establishing between possessors permanent lines of division, insuperable obstacles. Every year saw the people multiply, and the cupidity of the husbandman increase: it was thought best to put a bridle on ambition by setting boundaries which ambition would in vain attempt to overstep. Thus the soil came to be appropriated through need of the equality which is essential to public security and peaceable possession…

They did not foresee, these old founders of the domain of property, that the perpetual and absolute right to retain one’s estate, — a right which seemed to them equitable, because it was common, — involves the right to transfer, sell, give, gain, and lose it; that it tends, consequently, to nothing less than the destruction of that equality which they established it to maintain.

But a historical argument can also be made on this premise. If property rights were justly established because they aimed to preserve equality, then the fact that they do the exact opposite today is a perfectly valid reason to abolish them. Arguing that a system was based on corrupt principles, or arguing that a system was based on valid principles but could not sustain them, basically amounts to the same thing.

2. The Ethical Argument

There are actually many arguments under this category. Some of them are only relevant to patents (and therefore do not concern our topic), but two of them, one ethical and one moral, are general enough to be transposed. Here is the ethical one:

Ethically, property rights of any kind have to be justified as extensions of the right of individuals to control their own lives. Thus any alleged property rights that conflict with this moral basis — like the “right” to own slaves — are invalidated. In my judgment, intellectual property rights also fail to pass this test. To enforce copyright laws and the like is to prevent people from making peaceful use of the information they possess. If you have acquired the information legitimately (say, by buying a book), then on what grounds can you be prevented from using it, reproducing it, trading it? Is this not a violation of the freedom of speech and press?

And yet all property rights conflict with our control over our own lives, in the same way than IP rights. The belief in the business as property means that employees can’t “control their own lives” insofar as their work is concerned. The belief in land as property means that people don’t control where they can live, and how they can live. The belief in the individual’s freedom being the State’s property means politicians control what one may or may not do. And so on.

All these forms of property represent direct violations of pretty fundamental freedoms. If IP rights are invalid under that basis, then any property right which falls under the same criterion must also be invalid, making the concept of property contingent and therefore self-contradictory.

And the second argument:

Suppose you are trapped at the bottom of a ravine. Sabre-tooth tigers are approaching hungrily. Your only hope is to quickly construct a levitation device I’ve recently invented. You know how it works, because you attended a public lecture I gave on the topic. And it’s easy to construct, quite rapidly, out of materials you see lying around in the ravine.

But there’s a problem. I’ve patented my levitation device. I own it — not just the individual model I built, but the universal. Thus, you can’t construct your means of escape without using my property. And I, mean old skinflint that I am, refuse to give my permission. And so the tigers dine well.

This highlights the moral problem with the notion of intellectual property. By claiming a patent on my levitation device, I’m saying that you are not permitted to use your own knowledge to further your ends. By what right?

This is shamefully similar to the kind of arguments “ancaps” (not Roderick Long, however) reject wholeheartedly when they are applied to other forms of property, such as the flagpole scenario. This scenario goes like this: a man is hanging from the 30th floor of a building, hanging by a flagpole. The person who owns this flagpole doesn’t want him to be doing that, so he shoots him. Was the shooting valid?

It should be blindingly obvious to anyone with any ounce of brains, sense or feeling (in short, anyone with any form of intelligence whatsoever), that the answer is “no.” Anyone who doesn’t answer “no” is not the kind of person we want in a sane society. But some “ancaps” are so psychologically invested in their particular form of insanity that they will answer “yes.”

Since here Long seems to accept the principle that human lives trump property, there’s no reason for him not to accept this principle applied to property rights as a whole. If he rejects IP rights on the basis that they can interfere with human lives (as they do in pharmaceuticals), then he must reject all property rights.

3. The Economic Argument

The economic case for ordinary property rights depends on scarcity. But information is not, technically speaking, a scarce resource in the requisite sense. If A uses some material resource, that makes less of the resource for B, so we need some legal mechanism for determining who gets to use what when. But information is not like that; when A acquires information, that does not decrease B’s share, so property rights are not needed.

Once again, I refer to Proudhon, because he pointed out clearly how this argument for property rights is exactly the opposite from reality:

[N]o matter how large a quantity of air or light any one appropriates, no one is damaged thereby; there always remains enough for all. With the soil, it is very different. Lay hold who will, or who can, of the sun’s rays, the passing breeze, or the sea’s billows; he has my consent, and my pardon for his bad intentions. But let any living man dare to change his right of territorial possession into the right of property, and I will declare war upon him, and wage it to the death!

It is precisely because the air and the light are not scarce that we could permit property rights to exist in those areas. Even though such rights would still be unethical and undesirable, they would not prohibit anyone else from getting the air or light they need. But for someone to seize more than his equal part of the soil, and forbid anyone else to live on it or off of it, is an attack against everyone else, because the soil available is limited. It is precisely because “[i]f A uses some material resource, that makes less of the resource for B” that we need to make sure that A doesn’t claim property over it.

Now the argument is defeated. But let’s look at this further. He makes an analogy with material goods, let’s say a chair. So let us say this: “If A uses a given chair, that makes less of the chair for B.” In fact, it leaves B with none of the chair at all, since a chair can only be used by one person at a time. That’s fine, but not really relevant: we don’t typically want a specific chair, but rather one of a certain kind of chairs. The real issue is therefore whether A’s usage prevents B from fulfilling his own need for a chair.

The answer here is no. In our capitalist system, it is not A’s usage which allows or denies B the use of a chair, but rather B’s own resources and the subjectively determined price of the kind of chairs he wants. Depending on his wages, B may or may not be able to get his equal share of chairs. We therefore come back to the control of property rights over people’s freedom. Property rights are the problem, not the solution.

4. The Information-Based Argument

Here, Long argues that maintaining IP rights will bring about a slippery slope towards tyranny, because the Internet is making them more and more unenforceable. Given how neo-liberalism aggravates poverty and war all over the planet, I think the transposition is pretty clear. Property rights already bring about tyranny: in fact, as I’ve argued before, all tyranny is founded on the concept of property.

25 thoughts on “Anti-IP arguments can be transposed against property…

  1. Db0 February 12, 2010 at 21:15
  2. Roderick T. Long February 13, 2010 at 03:35

    I’ll reply in more detail later, but I have to make a couple of points right now.

    a) While you don’t actually attribute to me the claim that it’s okay to shoot the flagpole hanger, you do attribute it to “‘ancaps’ like Long” — which certainly seems to insinuate that I hold it. But of course I don’t; I’ve consistently upheld a Principle of Proportionality according to which the right to respond with defensive force against aggression depends on the defensive force’s not being disproportionate to the seriousness of the aggression.

    b) However, in any case that issue is irrelevant to the sabretooth tiger example you cite, because the moral of that story was not that “human lives trump property” but rather that under IP “you are not permitted to use your own knowledge to further your ends.”

    (I also don’t consider myself an “ancap” these days, but that’s another story.)

  3. […] one of my recent anti-IP posts “Our Communist Future,” François Tremblay has a new post in which he argues that the case I make against intellectual property in my 1995 anti-IP article […]

  4. Francois Tremblay February 13, 2010 at 04:13

    Yes db0, I do believe you were the inspiration for this entry of mine. I will add a link to your entry.

  5. Francois Tremblay February 13, 2010 at 04:16

    “a) While you don’t actually attribute to me the claim that it’s okay to shoot the flagpole hanger, you do attribute it to “‘ancaps’ like Long” — which certainly seems to insinuate that I hold it. But of course I don’t;”

    I admit that was a bit unfair. I will edit that part.

    “b) However, in any case that issue is irrelevant to the sabretooth tiger example you cite, because the moral of that story was not that “human lives trump property” but rather that under IP “you are not permitted to use your own knowledge to further your ends.””

    I don’t know, but isn’t that a roundabout way of saying the same thing? Why assume that using your own knowledge to further your ends is better than enforcing IP unless you a priori judge human lives (and their ends) to be more important than the enforcement of (intellectual) property claims?

  6. littlehorn February 13, 2010 at 06:30

    Hi Francois. Considering that anything not strictly determined by natural law can only be considered law in the innocent mechanical sense of being validated/selected for by consensus, how can a state defend property rights ? It just seems to me that, by preventing agglomeration of like-minded people, and by artificially selecting for everyone one type of ownership rules, the state makes sure no consensus exists anywhere with regards to those rules, which is the only way a rule can become law and constitute a right. Hence the impossibility of state-backed property rights.

    • Francois Tremblay February 13, 2010 at 06:38

      That seems like a fair statement, but I’m not sure what your point is.

  7. Gene Callahan February 13, 2010 at 13:26

    That’s a lovely picture at the top of the blog.

    A lovely scene totally dependent on… property!

  8. Francois Tremblay February 13, 2010 at 16:30

    “A lovely scene totally dependent on… property!”

    Not following you. Which part of the scene depends on the enforcement of property rights?

  9. littlehorn February 13, 2010 at 17:02

    Well, if a set of ownership rules only exists by way of consensual choice under anarchy, then an ethical opposition to one of them commits you to attack this choice, which I see as a blatant contradiction coming from an anarchist.

  10. Francois Tremblay February 13, 2010 at 17:05

    If I strongly disagree with the local consensus, why wouldn’t I leave and start forming my own?

  11. littlehorn February 13, 2010 at 19:14

    I think I fooled myself on what the ethical opposition entailed.

    Maybe I should have simply said that no set of ownership rules is against natural law, as such. To say otherwise is to allow and push for the use of force against it, since what is illegal in natural law cannot be made legal by consensus.

    Yet, something can be unethical while still being legal, on thick-libertarian grounds…

    Which leaves me naked in the wind. What an embarrassment.

  12. scineram February 13, 2010 at 19:18

    I guess the production of the camera it was shot with.

  13. Francois Tremblay February 14, 2010 at 03:53

    I’ve had to censor a few comments on this thread. Please, people, do not post essays about why I am wrong. If you must, post them on your blog or on Google Wave or whatever. Essays are not comments, and I don’t intend to debate anyone on a comments thread. Keep it short.

    If you must argue, make one point and make it clear. All the essays I’ve received were muddled as hell, and would be hopeless as points of discussion. They seem to be written to shut down discussion more than stimulate it, probably in the hopes that I’ll look like I’m not able to reply coherently.

  14. Francois Tremblay February 14, 2010 at 04:01

    How does producing a camera require property rights?

  15. quasibill February 14, 2010 at 10:07

    I think you’ve succinctly identified why I’ve always been uneasy about resorting to “proportionality” to solve the contradictions in absolutist property conventions (though I think you are playing “hide the ball” a little bit with the definition of property): Proportionality is a relationship between two policies, not a stand alone policy itself. In order to invoke it as an answer, one must clearly state what policies one is placing in the relationship. At which point, much of the “fog” of proportionality becomes a lot clearer, as it can be described as a an exercise in weighing competing policies.

    Of course, for some people, the point is to obscure the issue in order to be able to claim that all possible answers can be objectively derived.

  16. Jill February 15, 2010 at 15:22

    All the arguments use the idea, ____ rights are wrong because the violate ______rights. A coherent argument if you accept the latter rights. IP is wrong b/c it violates property rights. You claim property rights are bad because they violate basic freedoms. These “basic freedoms” aren’t universally defined, and are likely different for those who defend property rights. It’s the basic negative vs positive liberties argument all over again, and you have shown positive liberties lead to a contradiction in property rights. This is a very common belief, and is in fact an argument by many FOR property rights.

  17. Francois Tremblay February 15, 2010 at 16:26

    Jill: why should we accept the claims of propertarians that it is ethical for some people to make millions of dollars and for others to starve?

  18. scineram February 16, 2010 at 11:56

    Hopefully the property rights of even millionaires will be enforced, so what you want to accept will be irrelevant.

  19. Francois Tremblay February 16, 2010 at 17:12

    What you want to hope is irrelevant: property rights are not valid. Besides, wasn’t talking to you, and you didn’t answer my question, you arse.

  20. scineram February 17, 2010 at 18:37

    property rights are not valid

    Tell that to the prosecutor, thief!

  21. Francois Tremblay February 17, 2010 at 22:09

    “Tell that to the prosecutor, thief!”

    Uh sure buddy. Did you have anything meaningful to say or are you in troll mode now?

  22. Confused Libertarian July 28, 2010 at 11:28

    The idea of property rights not being valid seems to be based on the idea that some have the right to live on another’s effort.
    Life, it seems to me, can only be sustained by production or by living off those who produce for you. This idea of equal right to life subjegates some producers to the life of others, making their right to their own lives unequal to that of the ones doing the stealing.

  23. Francois Tremblay July 28, 2010 at 15:49

    What in the hell are you talking about? You are “confused” indeed. The alpha and the omega of our argument is that the worker should receive his full product, and that no one should be “subjugated” as they are in capitalism.

  24. […] As I’ve discussed before, the case against IP from the libertarian side is predicated on the fact that IP is a particularly destructive and unjustified form of property. As a libsoc, I do not believe in property, therefore I reject IP on that basis also, although I do not think IP is particularly destructive or unjustified: all rights to property are destructive and unjustified. […]

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