What an interesting week. Thanks to Robert Wenzel and Stephan Kinsella, there has been significant dialogue regarding intellectual property within the framework of libertarian thought.
I have done my share of participating in this discussion. Mostly, I have done my share of reading. The comments by the multitudes have provided a great opportunity – the division of (intellectual) labor has proven its worth. Reading these hundreds of comments at EPJ (and the handful here) has helped me to focus my thoughts on this subject.
I began, what seems like long ago, in a simple place – looking for an understanding regarding enforcement. For the pro-IP libertarian, what level of state enforcement is envisioned? I could imagine a minarchist accepting government involvement here, as this would be viewed as protection of property – something most minarchists would find as falling within acceptable government function. This wouldn’t work for me; however I could envision a variety of possibilities for private means of enforcement: contract, license, even simple statements printed on the protected product. For the anti-IP libertarian, what would be the objection of attempts at private means of enforcement?
I came to understand that my simple place came inherently with an assumption – that an idea is property that can be owned. I needed to develop a foundation – for my question to have relevance, it is necessary that I come to some conclusion regarding the possibility that an idea can be owned: is it property? I use the term “idea” as shorthand for any product from the brain: a design, a formula, a written piece, etc.
I had to put into concrete terms what I meant by “own.” For my own clarification, I have often defined it as: control, use, and disposition. How could I apply this to an idea?
Coca-Cola (the drink): what of the formula? What does it mean that Coke (the company) “owns” this formula? Is it appropriate to suggest, as the anti-IP side does, that Coke loses none of its property if the formula is publicly known? After all, Coke can still produce the beverage – they have not been prohibited from doing so solely by the fact that others can also produce the same beverage. Coke still “owns” the formula.
To explore this further, I had to explore my view on the possibility of an idea as property. The concept of property is reasonably easy to apply to physical goods – the product of man’s muscle and sweat applied to the natural world. As I considered this, I thought – why doesn’t this also apply to the product of man’s brain?
The brain is one of only two things that differentiate man from all other animals on earth (the other being the soul, for those who walk this path. I will ignore bringing products of the soul to this discussion, as it isn’t applicable and I wouldn’t know where to begin anyway).
How can it be that the product of the one thing that makes man different from other animals cannot be classified as property? I conclude that such products must be classified as property; else the value of man’s brain relative to the other animals is rendered worthless.
The product of man’s most significant attribute, if not owned by the producer, becomes community property. (Some on the anti-IP side say that an idea cannot be owned by anyone. But everything is owned by some entity.) Man’s brain must exist in a communist world if I carry the anti-IP argument to what I see as its ultimate conclusion. I am sure the anti-IP libertarians do not see it this way – especially out of respect to the unparalleled contributions to libertarian thought of Hans-Hermann Hoppe (who, apparently, is sympathetic to the anti-IP view), I am hesitant in this conclusion. Nonetheless, it is how I see it – and it isn’t the first time I have come to a conclusion different from one held by libertarian and Austrian titans.
What if the formula finds its way into the public sphere, even by relatively innocent means? The anti-IP position is that Coke has lost nothing – the company can still produce the beverage.
I suggest that what Coke owns is more than the formula. Coke has the right to the control, use, and disposition of the formula. Coke owns the sole proprietary right to the formula. The formula is uniquely Coke’s, just as a cow uniquely belongs to a farmer. A sole proprietary right is no more divisible for this formula than it is for a cow. Just as a farmer has a monopoly right to a specific cow, Coke can have a monopoly right to a specific formula.
What of independent discovery? It seems to me that independent discovery would be a legitimate method by a third party of gaining the formula; how this might develop regarding the various types of IP is far beyond the scope I intend to cover here.
This leads me to enforcement. I can now return to my original (and, now I recognize, inappropriate) starting point. As I conclude IP is property that is subject to being owned, I can accept any private means of enforcement consistent with the NAP. Just as physical property can be defended, so can intellectual property.
I do not speak to the practicality of enforcement; however the fact that enforcement might prove impractical (for example, for anything that can be digitized and disseminated via the internet) does not eliminate the possibility and the right of enforcement.
So this is where I am. What an intellectually tiring week, yet so many others did much more to contribute than did I. I thank Wenzel and Kinsella. I especially thank those who provided the myriad of comments – what a wonderful method to flush out ideas and to weigh arguments.
I do not pretend this is a fully researched conclusion. I have not read a dozen theories regarding what is property, or what it means when we consider something is “owned.” I am satisfied for now with my conclusions.
I also do not speak to the utility of IP, one way or the other. I have previously written on the explosion in learning in 19th century Germany (the region), because copyright was not well-developed. This explosion of learning turned the region from agricultural to industrial in a very short time – going from well behind England in this regard to virtually equaling it. The utility is not my consideration. The justice in the protection of private property is.
In summary: an idea is property – the result of man applying his brain to the physical world, just as physical property is the result of man applying his sweat to the physical world; the creator of the idea has just as much right to control its use as does the creator of physical property. Enforcement, solely along principles of the NAP, is perfectly acceptable. In other words, intellectual property can be defended just as physical property is. This can include force (of course, not state force) in defense.