BT et C

Tuesday, April 12, 2005


I was recently informed that

"a copyright creates ownership by NATURAL right of a thing AND the copies of that thing"

which, plainly, is buncombe. So I was encouraged when I saw from the same writer that "the concept of intellectual property, which itself is an oxymoron, is not sound...". This, plainly, is not buncombe.

Rather than continue that discussion in comments, I thought I'd start afresh, clarifying my position and hopefully that of my collocutor. Eureka: he says "BUT, as I said, if an idea or theory or thought has been put into a physical form, and by that I mean a form physical enough that it can contain a self-evident notice of ownership (ie, digital objects with copyrights), then ownership of that particular object IS valid"

This seems to mean only that when I produce physical manifestations of my ideas, I own those objects. True enough. But this is because I own all the physical objects I produce. Copyright and patent are about the right to control subsequent copies, manifestations, and derivative works. They are invalid vis-a-vis natural law because the ideas standing behind the manifestation are non-scarce & non-alienable. Obtaining them does not diminish their original owner, or constitute any sort of aggression against that owner. I have said all this before.

Since I have read a good chunk of Rothbard's book, I feel fine linking An Alternate View. Incidentally, I was well pleased to find, partway through that article, that Rothbard is counted among the opponents of patent & copyright (he holds the view that a copyright owner can reserve rights and therefore holds sway over use of his work by contractual agreement -- note, not by natural right; an analysis of this view and its problems also occurs in the linked article).

The critical thing there is that:

"..creation and labor-mixing indicate when one has occupied -- and, thus, homesteaded, -- unowned scarce resources." (p. 29)

Which is to say, the rights of ownership arise from first-occupancy, not from the labor. The labor admixture is simply a good indicator of who the first occupant was. Furthermore, in this property theory the tangibility of the owned thing is assumed. Applying it without further reflection to non-scarce resources is foolhardy. The reason you can't take the first occupant's property is because you must aggress against him or her to do so.

In anything that you create, you have a sort of abstract ownership -- so we refer to "Shakespeare's MacBeth" or say that I'm my mother's son. But I can surely make copies of MacBeth or of myself, derivative works, if you please (and cute ones at that), without any permission from Shakespeare or my mother. It is because you do NOT -- by natural right -- have any control over the allocation of property unless it constitutes an agression against you.

In America, in 2005, I can make and sell all the copies of MacBeth that I want. But not Ship of Fools. It is not because the latter action does anything to Katherine Porter. Both writers being dead, my actions do nothing to them. It is merely by convention; we have a theory (growing weaker all the time) that no one will write books unless the government promises to employ its monopoly on physical force on their behalf, fining or jailing anyone that copies their book even though they suffer no harm from the copying, for 75 years.

We have also decided, as it turns out, that it's a good idea to get together every couple decades and extend the scope of that promise.

One might be tempted to suggest that if I write a book and am selling it on the market, and people make copies and sell them, I am harmed by the lost sales. This is the RIAA/MPAA's theory, and there is food for thought in it. "Lost sales" are a kind of harm, I suppose. But do not confuse it with the actual, physical violence that must be done to you in order to take away your tangible property.


  • I LOVE this post! especially references to Rothbard, and the "monopoly on physical force" of the government. but you knew I'd love that when you wrote it, didn't you? and I'd much rather have the dialogue about whether or not natural rights apply to intangible objects, rather than have the utilitarian vs. natural rights dialogue.

    I know you have challenged me with non-scarcity before, and I still count it as a truth, however minimal, that even digital goods are not totally non-scarce - exist on scarce physical storage, sustained by scarce power sources, etc. but I'll accept that for all practical purposes, digital goods are non-scarce. furthermore, the discussion can continue in regards to truly non-scarce objects (patterns of words, etc), and leave the scarcity of digital objects to another time.

    so, after reading the article, I have altered my opinion. (gasp) I am more in line with the first-possession basis of property rights than the creation basis. more Rothbard & Locke than Rand. but notice that the first-possession basis of property rights still counts it as a natural right of a person to own a thing which they themselves have homesteaded or appropriated to themselves from the common, or general. and only after ownership is established can a contractual agreement be valid - for how could one contract something that they do not own?

    and here is where we get to some interesting stuff. the author of the article stipulates that intrinsic reserved rights are not valid, on the basis that "the borders of property must be visible." and that holds true under a situation like he details - an identical book sold under different contractual terms that do not appear on the book itself.

    however, it should also be noted that any physical work can contain, as I've described before, a self-evident notice of ownership (which has since been shown invalid to apply to usage), but also can contain a self-evident contract of usage - defining those visible borders of property. ie. the GPL on pieces of software. the author correctly refutes Rothbard's claim that items intinsically possess the characteristics of the contract under which they were distributed. but this is the reason that GPL requires inclusion of the GPL along with/in/on every distribution, as this is establishing the visible "property border" on the item. so even though items themselves do not contain the contractual obligations, we do not want to say that because of that, contractual obligations are moot, because that would negate not only copyright-style contracts, but also copyleft-style contracts.

    the author also very astutely describes why it is not accurate to say rights-of-use must be granted to receivers of property in order for them to use the property in that way.

    "I do not have to first find in my property a right-to-use-in-a-certain-way, for all ways of using it, except those that cause invasions of others’ property borders, are already encompassed within the general right to use my property."

    to my thinking, this is what justifies both copyright contracts and copyleft contracts.

    ie, something could be distributed with a copyright contract that stipulates, as a right-to-use, users to make no copies. and by using that thing - you have agreed to a contract that you won't copy it. on the flip side (d4wg), something could be distributed with a copyleft contract that stipulates, as a right-to-use, users to make public all of their alterations to the thing - you have agreed to a contract that you will do so.

    you have convinced me, with much Libertarian help (w00t!) that copyright law is indeed invalid in its current form - while it is a natural right of a person to ownership of something (thru first-possession), it is not an intrinsic natural right of a person to limit the use of something unless they explicitly attach that limit to the thing in a contractual sense - the ingenuity of the GPL is that the contract requires you to license further copies under the same contract, and to include, visibly, the contract itself.

    but surely a similar contract that requires non-copy could be created, and must be treated as equally binding of a contract as the GPL.
    so the validity of contractual rights supports copyleft and copyright licenses/agreements/contracts. so ultimately, as we originally discussed, the issue is indeed which style of contract people will use things under.

    both kinds of contracts are valid, so let this happen...

    let government-granted copyrights be removed, and let usage contracts take their place. some usage contracts may stipulate non-copy, some may stipulate public release of modifications, some may make no stipulations at all. but let all kinds of contracts exist, and let producers and consumers choose.

    sound good?

    By Blogger luke, at 11:50 AM  

  • Briefly:

    The non-scarcity of digital goods is not, in my opinion, the critical factor vis-a-vis natural property rights-- it's the non-alienability. Getting an idea or mathematical truth from you deprives you of nothing. It is as though you owned a plot of land that I wanted, and that I could acquire it by homesteading the same plot of land in a parallel dimension, leaving you and your land just as you are.

    The damn-near-zero marginal cost of digital goods is simply a fortunate historical accident brought about by recent technology. Its effect on natural property rights is negligible. But its effect on the market for "intellectual property" is huge. So huge that very big players in this market would like to undo that effect.

    Would that it were a matter of letting copyright and copyleft coexist peacefully competing in the free market! That'd be great; I content that the digital revolution is so significant that copyright would quickly "lose" a fair fight.

    The major problem is that the big players are aggressively attempting to restrict the market for these goods, to create artificial scarcity and preserve their business model, which is inherited from the days when "content" was always bound in a tangible -- thus expensive -- form.

    That said, I don't actually advocate the invalidation of all copyright law. That's unrealistic, at least right now.

    But considering the underlying absurdity of the concept of "intellectual property", it's a shame that these rights are in many respects being made stronger. It is as though teleportation were possible, but the government kept passing more and more complicated laws requiring people to buy and drive cars. It wouldn't take long to figure out who was behind that ;)

    By Blogger Matt Crouch, at 12:26 PM  

  • well yeah, most of the time government is doing anything it's only because it makes a certain special interest happy.

    "Their principal device to that end [holding office] is to search out groups who pant and pine for something they can't get and to promise to give it to them. Nine times out of ten that promise is worth nothing. The tenth time is made good only by looting A to satisfy B. In other words, government is a broker in pillage and every election is a sort of advance sale of stolen goods."

    I do like the non-alienability of digital goods as the basis for the intangible nature of digital goods. And one major step I've had to make in my own mind is to abandon my utilitarian apprehension at a major re-work of how creative content producers are rewarded. sure our current system has provided for some great innovation, but it's justification is still not soundly based on natural rights.

    so, even though it may mean less innovation at first, the proper system should still be implemented, and I'm pretty sure the market will adapt - it seems to be pretty good at that, from what I hear.

    By Blogger luke, at 7:47 AM  

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