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.