Protected: against intellectual property.
This was written as a senior project paper between December 2007 and March 2008. The interview with Kinsella can be found on the Mises blog (High School Senior’s Questions About IP).
Note that I no longer fully endorse everything in this paper, but I stay with my anti-IP conclusions.
11 March 2008
Is Intellectual Property Valid?
According to a special report by the United States Bureau of Justice Statistics, 8,254 intellectual property-related civil cases were filed at district courts in 2002. In that same year, eighty-eight percent of the defendants were convicted, and the median jail time served was fifteen months (Bureau of Justice Statistics). However, one must wonder – is intellectual property really valid? Does an abstract idea qualify as real property? A closer look at the nature of intellectual property (IP) reveals that it is nothing more than theft and does not stimulate creativity. IP laws are based on protecting a fraud and, from a more utilitarian viewpoint, do not have any visible effect on the economy or innovation, often hampering it.
Since intellectual property and copyrights deal with property rights, it is necessary to take a closer look at property. Property derives from scarcity (scarce as used here does not refer to a paucity, but to the condition where only one person can use something at a particular point in time). Natural resources are limited, so were there no such concept as property, humans would constantly fight over them. People would be locked in conflicts over who could use a certain good and who could not. Assigning one unique person exclusive control over a good – ownership – arises out of the need to prevent such conflict. Property, that which is owned, is necessary because of scarcity. Were resources unlimited, property ownership would not be necessary. Patent lawyer N. Stephan Kinsella best sums up this idea:
Were we in a Garden of Eden where land and other goods were infinitely abundant, there would be no scarcity and, therefore, no need for property rules; property concepts would be meaningless. The idea of conflict, and the idea of rights, would not even arise. For example, your taking my lawnmower would not really deprive me of it if I could conjure up another in the blink of an eye. Lawnmower-taking in these circumstances would not be “theft.” Property rights are not applicable to things of infinite abundance, because there cannot be conflict over such things (Kinsella, “Against Intellectual Property”).
Ideas and designs are not scarce as an infinite number of people can simultaneously use an idea or a design to their ends, unlike a physical object. A suitcase cannot be stored away in a basement, in the cargo hold of an airplane, and lie in the dumpster all at the same time. The suitcase can only be and do one thing at a time. This is not the case with designs and ideas. One person can use a certain design on a quilt, another person can use the same design as a part of a painting, and a third person can do a charcoal illustration of the design all at the same time. The mental form of the design can be used by millions of people simultaneously, and therefore it is not scarce. As property derives from scarcity, abstract ideas and designs fail to qualify as real property.
Copyright laws are, by their very nature, theft as enforcing them involves deprival of tangible property. Theft is taking away of property without consent of the rightful owner. Property is that which is owned. Ownership is absolute, irresponsible dominion. If a person owns an object, he and only he has absolute dominion over it, which means he can do anything with it. A person who justly owns a car is justified in burning it even if others disagree. If an individual wants to grant ownership of his house to someone else, he may justly do so by any mutually voluntary means such as exchange or gift, after which he no longer owns it (Rothbard and Hoppe). A copyright means that the original artist “owns” the design, an intangible, abstract idea. If another person is found to be using a copyrighted idea or a design, his material, tangible property can be confiscated using real force. The original artist does have a right to the material canvas or computer he used to create it. However, he does not have a right to control someone else’s property, which copyright laws essentially allow him to. If an artist claims someone else copied his design, under the copyright system he could take away the other person’s real, tangible property on which the design was used, and this is simple theft.
Many people will likely respond by saying, “But I don’t like the idea of my art being reproduced!” This claim has absolutely no sound basis; it bases itself only on emotions, which do not make a sound argument. If emotions made an argument valid, they could be used as an argument for any position, including the destruction of copyright laws. Feelings are simply personal and do not have any effect on how reality operates, and so they do not make an argument at all. In the words of nineteenth-century individualist Benjamin Tucker, if a person wants his invention to himself, he should keep it to himself (Kinsella, interview). However, perhaps the most common charge against the abolishment of copyrights is that without them, there would be no incentive to create and artists would stop creating. This is false on many counts. As Douglas Clement pointed out in “Creation Myths: Does Innovation Require Intellectual Property Rights?” people have been creating and inventing throughout history without any intellectual property laws. Over the several centuries of human history, many famous artists, writers, composers, and inventors have dedicated their lives to creating intricate and exquisite works with no copyright protection (Clement). Today, there are also many websites and resources where artists, software programmers, and others create, knowing their creations can be legally reproduced and modified by anyone in the world. Examples include FreePatentsOnline.com and the many hundreds of open source software programs available at SourceForge.net and other open source websites. These people are aware of the fact that their work will likely be reproduced, printed out, modified, etc. and they still continue creating. Furthermore, as Samuel Konkin says in “Copywrongs,” artists will create as long as there is a “burning need to express” (Konkin). It is rather unrealistic to predict that in a world sans copyright, artists will no longer have any desire to create. There may even be some evidence that intellectual property laws actually decrease creativity. In the 1980s, court rulings that strengthened patent protection resulted in less software innovation (Clement). A rationale behind this can be explained using basic economics. As the rate of reproduction increases, the prices drop due to the law of supply and demand, which leads to more consumers buying the product (Clement). Other pro-IP people claim that the original artist will not get as much profit from the creations if there were copies all around. As Konkin says, the real money comes from the first publication; after that any copy is less valuable. Clement also addresses this point by noting that in the present fashion world, “[a] Gucci is a Gucci; knock-offs are mere imitations and worth less than the original” (Clement). An original is an original; a copy will not fetch as much in the market. Evidence supporting this can be found in a study showing that “illegal music downloads have had no noticeable effects on the sale of music, contrary to the claims of the recording industry” (Fisher). The study showed that peer-to-peer (P2P) networks that copied and downloaded songs affected less than 0.7 percent of music sales. Even the minimum point correlated to a 368-copy decrease in sales, a number statistically considered indistinguishable from zero. Several applied methods of data analyzation all led to the same conclusions – that illegal music downloads had no causal relationship with increases or decreases in album sales (Fisher).
Still, other supporters of copyrights and patents claim that people own their brains, and therefore they own the mental products of their brains. Kinsella responds to this point by noting that creation is not actually a source of ownership. An artist owns a painting only if he rightfully owned the blank canvas and paints that were used to make it. If he uses someone else’s canvas and paints, the rightful owner owns the painting as the materials used were his property, not the artist’s, even if the artist created a new painting with them; on the other hand, the artist could be sued for violating property rights (Kinsella, interview). “Mental products” is a rather nebulous and broad concept; if we granted property rights in them, every time a farmer today plants a seed, the posterity of the early Cro Magnon who discovered how to grow crops would have to be given a share of the money, and Isaac Newton’s descendants would have to be paid a royalty every time a mathematician uses a calculus formula.
Destroying intellectual property laws would not result in a decline in creativity or innovation, but rather put an end to the thousands of related lawsuits currently carried out every year, resulting in time, money and resources being wasted on protecting a fraud (Bureau of Justice Statistics). Millions of people would be free to exercise their creativity to any extent as they wish, unrestrained by the shackles of copyright. The removal of all IP laws would lead to an influx of art designs, products and inventions pouring into the market, causing a Golden Age of innovation.
So in brief, intellectual property laws are invalid as they result in simple theft of tangible property only to protect pseudoproperty and zero, or sometimes a negative, effect on innovation and the economy. Arguments in favor of intellectual property can be debunked with the facts of reality, and arguments against IP can be proven true with basic truths about the cosmos around us.
Works Cited
Bureau of Justice Statistics. (2004). Intellectual Property Theft, 2002 (NCJ Report 205800). Washington, DC; US Department of Justice.
Clement, Douglas. “Creation Myths: Does Innovation Require Intellectual Property Rights?” Reason Magazine. March 2003. 6 Dec. 2007.
Fisher, Ken. “Study: P2P Effect on Music Sales ‘Not Statistically Distinguishable from Zero’.” 12 Feb. 2007. 18 Dec. 2007.
Kinsella, N. Stephan. Personal interview. 7 Dec. 2007.
Kinsella, N. Stephan. “Against Intellectual Property.” Journal of Libertarian Studies Spring 2001: 1-53.
Konkin, Samuel E. III. “Copywrongs.” The Voluntaryist July 1986: 25.
Rothbard, Murray N., and Hans-Hermann Hoppe. The Ethics of Liberty. New York University Press, 1998. Mises E-books. 3 Dec. 2007.