Chad Perrin: SOB

13 March 2006

Patently Absurd: Ethical Property Law

Filed under: Liberty — apotheon @ 05:21

The US patent system is a wart on the face of property rights. Somewhere along the way, someone decided that people should be able to separate the sale of items from the sale of ideas, allowing creators to have their cake even after they’ve eaten it.

I find that any discussion of my opinion of “intellectual property” is generally best begun with a quote from Thomas Jefferson:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

This quote is occasionally used to criticize intellectual property law, especially within the United States. When this occurs, it is often in the form of an appeal to authority (for, certainly, Thomas Jefferson must be a more authoritative source of right thought in such matters than you or me — right?), though my own purpose in bringing it up is simply that Jefferson put into eloquent words something with which I agree entirely. I would (and have done so on many occasions, in fact) write words to that effect myself, but there is little point when a simple cut-and-paste achieves the same aims, and I attribute it to a Founding Father of the United States because that’s who wrote it, not because I find that his name makes it any more or less true.

Illustrating my actual attitude toward the words of Thomas Jefferson is of course the fact that, very rarely, some supporter of intellectual property law will then respond by pointing out the context within which this statement resides in a letter from Thomas Jefferson to Isaac McPherson in 1813. Such supporters of intellectual property law always go on to talk about what Thomas Jefferson’s actual position on intellectual property law was: that it’s a good thing to have, and thus it should be enshrined in the foundational document of the nation’s legal system. My point: Thomas Jefferson was right about the relationship of ideas to nature. He was wrong about the notion that this relationship should be undermined, replaced in society by a counterfeit that produces an unnatural condition of monopoly. Thomas Jefferson was wrong in his belief that artificial scarcity is something that should be enforced by law for economic purposes.

The source of this problem is clear in a statement Jefferson made earlier in that same letter. He said “It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance.” I have long been of the opinion that while this is certainly true, it conflates tangible property with “intellectual property”, providing a fallacious basis for further pontificating upon the ephemera of the intellect from the perspective of it sharing anything in common with the concrete tangibles of this world. As I’ll explain later, I’ve only just a few minutes ago come to realize that this is not where Jefferson’s error lies: he is, in this comparison of physical and intellectual “property”, quite correct.

Nowhere else have I heard any argument proceeding from fundamental premises, suggesting that an idea is comparable to a pencil in its appropriateness for proprietary definition, that actually succeeded in supporting such a relationship validly. The most common arguments for such ultimately are circular, originating in the desire for intellectual property law to be recognized as desirable. I, in fact, held a similar opinion on the matter for a long time, until a friend of mine finally called the underlying assumptions into question over dinner at Denny’s in 2003. That conversation sparked long consideration of the matter, ultimately ending in my conclusion that the concept of intellectual property is deeply flawed, broken from its very basis, utterly without ethical merit. It is, in short, merely justification for coercive, monopolistic dealings. It is justification for a protection racket.

Jefferson’s next sentence after the last I quoted is “By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it.” He’s right. Property as recognized by the general populace is in fact a legal conceit. Property is not in and of itself a right, as Voltaire or most objectivists would have you believe. Rather, it is a consequence of other rights. It is a symptom rather than a root cause. Property rights are merely rights to self-determination that are extended by possession to include “things”, for some definition of the term. By this light, then, one has proprietary right only over something within one’s possession, unless that proprietary right can be extended by means of other interactions of fundamental individual rights. Neither the fact of the existence of law, nor a goal of fostering “the public good”, nor even a desire to lubricate the machinery of the market economy, is sufficient to ethically extend property rights for either the product of the intellect or tangible goods beyond immediate possession or occupation.

What is sufficient is one’s right to freedom from coercion, which includes a prohibition of fraud. Prohibitions against fraud are the basis of the ethical inviolability of contractual agreements, and by contractual agreements proprietary interest can be extended through means such as occupation or possession by proxy. In other words, one might contract with others to ensure the proprietary security of a piece of land by way of their occupation of that land in one’s name. In essence, these people are the actual possessors of the land, but by virtue of contractual agreement they are beholden to relinquish it to the person with whom they’ve contracted, and to refrain from doing anything with the land prohibited by the terms of that contract.

Similarly, one’s land can be protected by virtue of preparations that make it effectively impossible for a would-be appropriator of said land to occupy it without potentially endangering the rights of others. For instance, if one must use a wrecking ball on a section of wall to gain entrance to the land in question, that person may well be endangering the lives of people who may be on the other side of that wall. Thus, gaining entrance is prohibited by the fact that it requires the potential endangerment of the rights of those hypothetical people.

Where, then, is the protection for ideas provided by copyright and patent law that is similarly supported by ethical premises? Whose individual rights, absent intellectual property law, are violated if I happen to overhear a song, reproduce it, and sell the copies? Whose individual rights are similarly violated if I take photos of a mural on the side of a building and sell them as postcards?

. . . and before you raise the specter of the end user license agreement, I cannot be ethically held to the terms of a contract when I was not aware of those terms before its observance was forced upon me. Legally, of course, I can — but the law is far from ethical in this day and age.

Ultimately, Jefferson’s words in that letter are quite equivocal on the subject of the appropriateness of enshrining the concept of intellectual property in law. They could as a whole be taken to support either side of the debate, though his statements regarding his serving on the patent board indicate at least tacit support of intellectual property law.

Finally, in answer to the common complaint that without intellectual property law all innovation would grind to a halt, I leave you with two points to ponder. The first is the example of open source software development, which is in recent years proving itself generally more productive of innovation than the more traditional proprietary model. The second is the end of the paragraph in which Thomas Jefferson pontificates upon the relationship of nature to intellectual property laws:

Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.

Now Playing: Snog — Big Brother


  1. True that lack of copyright and patent protection did nothing to hinder Aristotle, Sophocles, Archimedes, Da Vinci, and many others. On the other hand, none of these great men were primarily motivated by profit. Intellectual property law confirms and entrenches the capitalist system. The open source movement, although it has demonstrated the ability to coexist with capitalist motives, more starkly demonstrates that capitalism isn’t a prerequisite for innovation (as you noted).

    Big Brother isn’t the political ideal of statism, it’s the monetary interest behind maintaining a certain state of affairs, under whatever ideological banner serves it best.

    Comment by Sterling Camden — 13 March 2006 @ 11:25

  2. Capitalism doesn’t require intellectual property law: it only requires that all means of production are privately owned and operated (or, by an oddly orthogonal definition, that capital is used to keep score). In fact, the concept of intellectual property requires legal enforcement and centralized jurisprudence to be even vaguely viable, which would preclude the possibility of anarcho-capitalism.

    Comment by apotheon — 13 March 2006 @ 11:40

  3. True, anarcho-capitalism would be against such regulations by definition. However, capitalism as it is practiced benefits from such rules by promoting capital as the primary reward for innovation. If capital is how we keep score, then (the theory goes) there is no reason to innovate unless it generates capital. And if that capital reward is not protected, the reason to innovate will perish with it. Not that I completely agree with that, but so goes the logic behind the position of Microsoft and other tacitly anti-open-source purveyors of software.

    Comment by Sterling Camden — 13 March 2006 @ 06:52

  4. Some thoughts of mine:

    Don’t all products and creations of humans start as a thought or an idea? The difference is the way the end product is manifested. The result of the one idea becomes a tractor and another becomes a song. Both use a form of matter, one is solid metals and another is sound waves. Why is it that one idea deserves the protection from others copying and profiting and the other does not?

    In the past perhaps, creative objects were not so much used for profit. Artwork, music, literary writings, etc. were more for the purpose of conveying thoughts and feelings or to record events and stories. In current times, these items have taken on the additional purpose of becoming a commodity similar to concrete objects, like a new car model or a new perfume. People have the choice to create an object that is free for the use of everyone if they so wish, but if they don’t want to freely let others copy it then they copyright/patent/trademark it. Why should there be a difference in the protection if it is a hammer or if it is a piece of software?

    Comment by medullaoblongata — 13 March 2006 @ 07:59

  5. Oddly enough, while I have a hard time imagining how intellectual property law can be approximated in Ancapistan, there are a great many self-proclaimed anarcho-capitalists who support IP law, for whatever reason.

    EDIT: I entirely agree with the commentary of medullaoblongata here as regards the similarities of ideation and manifestation she indicates. On the other hand, there are hammers being “invented” today that have “patent pending” stamped on them, as ridiculous as that may seem.

    Comment by apotheon — 13 March 2006 @ 08:05

  6. Here’s an example of where patents get truly absurd (“patent trolls”):

    Comment by Sterling Camden — 14 March 2006 @ 11:01

  7. First impression

    I don’t agree that all intellectual property rights are unjust or illogical. The mural example, for example, strikes me as a straw man argument because the act of selling a photograph as art or decoration is implicit recognition of the visual appeal of the subject of the photograph, proven by the existence of a non-zero sale price, which logically requires that the photograph has value. If that value does not derive from the object photographed, but from the photographic paper, why go to the bother of developing the photo? Why bother even opening the shutter.

    If I were to change United States intellectual property law, it might be along the lines of requiring some sort of statement of utility to accompany EULA’s, a claim by which I could judge whether the rights that I abandon as an end user are more or less valuable than the utility promised by “the Company”. I would also, in Absolute Utopia, pay successful inventors extravagant salaries to judge the novelty of others’ inventions on a sliding scale, affording the most useful and most genuinely innovative new intellectual abstractions higher levels of protection.

    Comment by Absolutely — 15 March 2006 @ 08:39

  8. The image certainly has value in and of itself, but that doesn’t mean that one should be prohibited from taking a copy along when one leaves, or later providing it to others. The value of an image is, generally, the display — and once you’ve displayed it to someone, it’s too late: that person has a copy in his or her head. That person can then go on to reconstruct the composition of a photograph, repaint images seen, and so on.

    Furthermore, when you pass out free copies (as happens when you view an image on the web), it’s hardly kosher to expect that the person receiving is somehow now bound by your rules of display and distribution, especially since you in no way gave the person the opportunity to opt out of receiving that particular image. The alternative is to essentially force someone to take a photograph and say “You may now burn it if you like, but you’re not allowed to use it for your own purposes. If you do, I’ll shoot/arrest/whatever you.”

    The problem here is, of course, that so-called “intellectual property” forces itself into the possession of others by the mere fact of being perceptible. It has no value without being observable, and the moment it’s observed it is already distributed. There’s no “in between”. There is no “How do you like it? Do you want it?” option, because the very act of examining it to determine value involves receiving it. It’s an idea, not an object. You cannot truly purchase “intellectual property” except sight-unseen, before you even know what it really is, though you can have it forced on you and have money extorted from you for something you never agreed to “buy” — which is exactly what the body of US intellectual property law does.

    EULAs, in fact, are ex post facto contracts, enforced long after you have the option of refusing them — which is, in short, BS. It’s an implicit contract: it is implied that you agree to all its terms when you fork over cash for a box that you hope contains something useful, long before you even know the terms. You’re paying money on the off-chance that you won’t get royally screwed by that for which you’re paying. It’s unethical to a pretty severe extreme. If someone wants a contract relating to the terms of use of some “intellectual property”, that contract should be available for examination and agreement should be explicit before any exchange of value is made. To do otherwise is to use the intellectual protection racket to extort money from people.

    Comment by apotheon — 15 March 2006 @ 09:32

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