© 2009 Bob Schaefer
A common, ordinary apple becomes N. Stephan Kinsellas property by his simple act of plucking it from a tree.1 Yet, a novel authored by John Doe a novel that originated in Does head and materialized in Does computer is not owned by John Doe. What kind of reasoning leads one to such a counter-intuitive opinion?
[B]ecause, ideas are not scarce resources in the sense that physical conflict over their use is possible, they are not the proper subject of property rights designed to avoid such conflicts.2
When confronted with an argument like Kinsellas Against Intellectual Property, we are tempted to criticize every word. However, in this case it is necessary to focus on one word in particular because the crux of Kinsellas argument is his peculiar concept of scarcity.
In the first part of this paper we will demolish Kinsellas concept of scarcity, which underpins his argument against IP rights. We will argue that the wellspring of property rights all property rights is not scarcity but human action, more specifically, cooperative human action. In the second part of this paper we will ascertain exactly how human cooperative action implies the concept of property rights. We will present a more practical and sensible understanding of intellectual property and explain why it would properly fit into a libertarian society.
Lastly, our purpose here is specific and narrow. Our primary interest is in copyright. We are not a patent attorney nor a philosopher. Consequently, we will not examine IP law, IP as contract, specific forms of IP (other than copyright) or various libertarian philosophical defenses of IP in general. Our purpose is to demonstrate that Kinsellas objective justification of property is in error and that copyright as it exists today in our society is wholly legitimate and proper when considered from the point of view of cooperative human action. Ours is primarily a praxeological viewpoint.
Scarcity is the keystone of Kinsellas argument for property rights and against IP rights. He writes:
Thus, scarcity is not the basis for property rights, but a necessary background condition that must obtain before property rights can arise or make sense...3
Moreover, he continues, property rights can apply only to scarce resources. The problem with IP rights is that the ideal objects protected by IP rights are not scarce...4
Without Kinsellas omnipotent concept of scarcity his argument has no legs, i.e., property rights of any kind could not, in his own words, either arise or make sense. His argument for property rights in general and against IP rights in particular would, consequently, disintegrate. So we must untangle Kinsellas concept of scarcity with a fine-tooth comb.
In his short tract the word scarce appears 59 times and the word scarcity 43 times. But just what does Kinsella mean by scarcity, this almighty background condition that determines whether or not property rights can exist? He never specifically defines the concept. We are forced to impute meaning to the word based on vague phrases and parenthetical remarks.
For instance, Kinsella writes: A little reflection will show that it is these goods scarcity the fact that there can be conflict over these goods by multiple human actors. The very possibility of conflict over a resource renders it scarce, giving rise to the need for ethical rules to govern its use.5
But what does Kinsella mean by conflict, (physical conflict6 or interpersonal conflict7)? Based on its grammatical context (conflict over these goods by multiple human actors [emphasis added] and conflicts are avoided and peace and cooperation are achieved8 [emphasis added]), we might conclude Kinsella intends conflict to mean human strife, i.e., the very possibility of...[human strife]...over a resource renders it scarce... However, Kinsella throws this sense of scarcity an immediate curve ball:
Nature, then, he writes, contains things that are economically scarce.9
Are we now to understand Kinsella to mean that there are things in nature that cause human strife? Or maybe he means there are things in nature that occasion human strife?
We may dismiss the former interpretation as deterministic and behavioristic nonsense. But we must also dismiss the latter interpretation as meaningless and insignificant because it is so broadly true. The latter interpretation is more a comment on human nature than on the scarcity of tangible objects.
My use of such a thing conflicts with (excludes) your use of it, and vice versa. The function of property rights is to prevent interpersonal conflict over scarce resources, by allocating exclusive ownership of resources to specified individuals (owners).10
Here Kinsella obviously intends conflict to mean something other than human strife. Clearly, he has in mind mutually exclusive utility. True, it is fairly common in nature that Person As use of a particular thing excludes Person Bs use of that same thing. For example, As consuming a bite of apple excludes Bs consumption of that same bite. Does Kinsella believe that property rights can function to prevent this physical fact of nature, i.e., can enable two human beings to consume the same bite of apple? Such a feat is impossible and tantamount to having your cake and eating it too.
Or does Kinsella want us to understand that the function of property rights is to prevent human strife associated with particular cases of mutually exclusive utility? We think so.
Logicians recognize Kinsellas argumentative technique as the fallacy of equivocation.11 Kinsellas argument goes something like this:
Major premise: Scarcity entails possible conflict.
Minor premise: When scarce things are used, conflict is certain and unavoidable.
Conclusion: Therefore, ethical rules of property are needed to prevent conflict over the use of scarce things.
If conflict is consistently defined as human strife in this syllogism, the major premise is true, but the minor premise is obviously false. Thus, the conclusion does not follow.
On the other hand, if conflict is consistently defined as mutually exclusive utility, the major and minor premises are contradictory. Thus, the conclusion cannot possibly follow.
Only by equivocating, i.e., by using two distinct and different definitions of the word conflict, does the arguments conclusion seem to follow:12
1. Scarcity entails possible conflict [human strife].
2. When scarce things are used, conflict [mutually exclusive utility] is certain and unavoidable.
3. Therefore, ethical rules of property are needed to prevent conflict [human strife] over the use of scarce things.
Logic does not allow equivocation. So Kinsellas argument for property and against IP (only tangible, scarce resources are the possible object [sic] of interpersonal conflict, so it is only for them that property rules are applicable) is illogical and nonsensical. Kinsella has not only failed to justify property rights, but has also failed to prove that IP rights are unjust.
However, before resting our case against Kinsellas argument, we must comment further on his peculiar concept of scarcity. It is safe to assume that most economists do not share Kinsellas concept of scarcity.13
George Reisman writes:
Economists almost universally describe the condition in which the desire for wealth exceeds the amount of wealth available as one of scarcity. Scarcity, they hold, means any limitation of wealth relative to the need or desire for wealth, irrespective of whether the limitation proceeds from the lack of wealth or the abundance of desires.14
Murray N. Rothbard writes:
In the first place, all means are scarce, i.e., limited with respect to the ends that they could possibly serve.15
Ludwig von Mises writes:
Means are necessarily always limited, i.e., scarce with regard to the services for which man wants to use them.16
To our knowledge, not one of these economists links the concept of scarcity to the concept of interpersonal conflict, whether understood as human strife or mutually exclusive utility. Each views scarcity not in terms of some objective, nature-given condition, but in terms of subjective human action.
Kinsella, on the other hand, is intent on objectifying scarcity, i.e., linking the concept (and its supposed omnipotent qualities) to the objective and given qualities of nature. He writes:
Nature, then, contains things that are economically scarce.17 He adds: Ideas are not naturally scarce.18
He references Boudewijn Bouckaert as an authority on the notion of natural scarcity:
Bouckaert also argues that natural scarcity is what gives rise to the need for property rules, and that IP laws create an artificial, unjustifiable scarcity.19
And to reinforce this concept of natural scarcity, Kinsella introduces Hans-Hermann Hoppes notion of superabundance: Were we in a Garden of Eden, Kinsella writes, 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.20
From all of this we cannot but conclude that Kinsella believes that conflict, property rules and the very concept of property are functions of this concept of natural scarcity, i.e., the available but finite quantities of inanimate objects found in nature. Yet, the science of praxeology proves that nothing could be further from the truth. As the Austrian economists quoted above reveal, the concept of scarcity must always be considered within the context of human action. As Mises writes above, means in nature are scarce with regard to the services for which man wants to use them. [Emphasis added]
Lets be honest. We all know that man does not assess the conditions he imagines to exist in the Garden of Eden before he acts in the real world. Man acts based on his imperfect knowledge of the real world. To the best of our knowledge, we know the following to be true:
1) That the earthly supply of resources man is able to employ as means to a given end exist in limited and finite quantities; and
2) That one mans consumption of one unit of this supply of resources necessarily prevents another mans consumption of that self-same unit.
However, it is clear that the above objective conditions imposed by nature, whether considered individually or together, do not imply human strife, economic scarcity (natural or artificial) or property (tangible or intellectual). These particular concepts only become imaginable when a third condition imposed by nature is considered: acting man.
Kinsellas scarcity argument attempts to draw a direct, logical line from the objective and given conditions of nature to the subjective, human notion of property. Such a line cannot be drawn any more than it can be drawn from the natural means available on earth to the particular ends sought by an individual human actor. This understanding is fundamental to Austrian economics.
Interpersonal conflict human strife is not determined by the absolute quantity of goods or resources in existence. It should be obvious that conflict is absent in the Garden of Eden not because there is an infinite quantity (no scarcity) of goods and resources in the Garden, but because, so long as all human wants and desires for goods are satisfied, there can be no human action with regard to goods. Moreover, if conditions change and action is required to achieve satisfaction (e.g., conjuring up another lawnmower), individual action will suffice (e.g., the blinking of an eye). At least with respect to obtaining goods and resources, cooperative action offers no advantage over individual action in Kinsellas Garden of Eden.
However, in the real world, where goods and resources are limited in quantity, individual action will not suffice. In the real world it is individual human action that determines whether human strife will exist over scarce resources, and it is cooperative human action that eliminates this human strife.
Or is Kinsella telling us that in the real world interpersonal conflict is determined not by human actors but by the autonomic response of the human central nervous system to non-abundant stimuli? Or perhaps he means to imply that nature has hard-wired humans in such a fashion that when faced with a case of mutually exclusive utility we humans naturally engage in interpersonal human strife rather than choose interpersonal cooperation?
The very possibility of conflict over a resource renders it scarce, giving rise to the need for ethical rules to govern its use.
He has it exactly backwards. The ethical rules of private property do not mysteriously rise out of natural scarcity to prevent human strife. Seeking to eliminate conflict over scarce resources, human actors cooperate. They conceive and implement ethical rules of behavior, rules that make cooperative action possible. The concept of private property is implied by these ethical rules. Thus, as we shall prove in Part II of this paper, property rights tangible and intangible are the consequence of human cooperative action, not the consequence of some vague concept of inevitable conflict embedded in naturally scarce, inanimate objects.
As usual, Ludwig von Mises sums it up best. He demolishes Kinsellas concept of scarcity in a single paragraph:
The natural scarcity of the means of sustenance forces every living being to look upon all other living beings as deadly foes in the struggle for survival, and generates pitiless biological competition. But with man these irreconcilable conflicts of interests disappear.... Within the system of society there is no conflict of interests ... ... harmony of interests is substituted for conflict. People are no longer rivals in the struggle for the allocation of portions out of a strictly limited supply. They become cooperators in striving after ends common to all of them.21
In order to appreciate fully the role human action plays in the establishment of rights in general and property rights in particular we must thoroughly review the concept of human action. In his classic work on the subject, Ludwig von Mises defines action as purposeful behavior.22
The human actor feels uneasiness with his current state of affairs. Considering satisfaction solely from his own point of view, he attempts to substitute a more satisfactory future state of affairs for his less satisfactory current state of affairs. Using the limited means that reality and his knowledge of reality make available to him, he attempts to attain the end he seeks.
Mises distinguishes between two distinct categories of action, autistic action and cooperative action:
Action always is essentially the exchange of one state of affairs for another state of affairs. If the action is performed by an individual without any reference to cooperation with other individuals, we may call it autistic exchange... ... Within society cooperation substitutes interpersonal or social exchange for autistic exchanges. Man gives to other men in order to receive from them. Mutuality emerges. Man serves in order to be served.23
Autistic action is simple, straightforward and autonomous because the autistic actor does not collaborate with another actor. An individual contemplating autistic action introspectively conceives of a desired personal end, imagines means of utilizing his person and other existents in nature to attain that end (including the independent and unconcerted action of other individuals) and, then, acts strictly of his own accord.
Because the autistic actor alone expends the time and effort required to attain his desired end, he and he alone attains the entire desired end and gains all the satisfaction, if his action is successful when considered only from his own point of view. If from his point of view his action is unsuccessful, he and he alone fails to attain his desired end and gains no satisfaction at all.
Cooperative action is the purposeful behavior of two or more individual actors acting in concert, i.e., two or more rational, communicative individual actors consciously coordinating and concerting their individual action into a singular and consolidated course of action in order to attain a particular end desired in common.24
As such, cooperative action is complex, roundabout and interdependent. Cooperative action requires at least two cooperating actors coordinating their action. An individual autistic actor contemplating cooperative action introspectively conceives of a desired end, imagines collaborating with another individual actor as the means to attaining that end, seeks out that other actor, exhorts him to collaborate and, then, finally, subjectively decides whether or not to act cooperatively. He is well aware that the success or failure of any prospective cooperative action depends not only on his actions but also on the actions of his fellow, cooperative partners.
Why, then, does an actor undertake such a complicated and interdependent form of action? Man acts cooperatively in order to attain a specific end that he either cannot attain as an autistic actor or cannot attain as efficiently as an autistic actor.25 The self-evident fact that men act cooperatively is proof in itself that cooperative action is worth undertaking. Just as we must assume autistic action is purposeful, so we must assume that cooperative action is purposeful.
In the words of Mises, praxeology takes the ultimate ends chosen by acting man as data, it is entirely neutral with regard to them, and it refrains from passing any value judgments.26 Consequently, the purposes of human action are not positively objective and absolute, but subjective and arbitrary. An autistic actor aims at anything he can imagine and anything he desires that in his opinion will relieve his felt uneasiness.27
Likewise, the purpose of cooperative actors is not positively objective or absolute, but arbitrary and praxeologically objective (intersubjectively objective). Cooperative actors may collaborate to aim at anything they can mutually imagine, desire, negotiate and agree upon which in their mutual opinion will relieve a common, felt uneasiness.
Because cooperative action is mutual action, we deduce that the desired end of cooperative action must be mutually attainable by each individual cooperative actor. Thus, prospective partners in cooperative action must negotiate and agree upon exactly how the common end of their cooperative action, once attained, will be divvied up and consumed between or among them.
The common course of collaborative action that partners in cooperative action employ in order to attain their common, desired end is, specifically, a coordinated combine of individual courses of action which are to be simultaneously employed by each cooperator. Each individual course of action serves the greater purpose of the common and concerted cooperative action. Prospective cooperative actors negotiate and agree upon their common course of cooperative action. This common course of action must be satisfactory to each individual cooperative actor, and each individual cooperative actor must follow this common, cooperative course of action in order for each cooperator to attain his respective negotiated portion of the desired, common end.
When considered from the point of view of each cooperating actor, this intersubjective and mutual expectation that each partner must follow a designated and specific common course of action implies that a cooperative action is intersubjectively normative. That is, cooperative action imposes on cooperators intersubjective standards of proper behavior.
Similarly, the intersubjective and mutual expectation that each partner attain his respective and negotiated portion of the common, desired end implies that a cooperative action is intersubjectively proprietary. That is, cooperative action imposes on cooperators intersubjective standards of proper possession.
Thus, we might conclude that the common course of collaborative action for a particular cooperative action is a common code of ethics for that particular cooperative action.
Consequently, once a cooperative action commences, we must consider the behavior of cooperators strictly from the point of view of their sovereign, common code of cooperative ethics. If that code prescribes a particular behavior, then we must assume that particular behavior is ethical action, i.e., cooperative action, complementary to the common, desired end and satisfactory to all cooperators in that cooperative action. By the same token, if that code proscribes a particular behavior, then we must assume that particular behavior is unethical action, i.e., autistic (non-cooperative) action, contradictory to the common, desired end and unsatisfactory to all cooperators in that cooperative action.
Following this logic, we must assume that the human behavior of homicide is an autistic action only if homicide is proscribed in the common code of cooperative ethics of a particular cooperative action, and only in the specific and particular terms, conditions and cooperative context in which it is proscribed. Similarly, we must assume that the human behavior of taking is an autistic action only if taking is proscribed in the common code of cooperative ethics of a particular cooperative action, and only in the specific and particular terms, conditions and cooperative context in which it is proscribed.
Thus, we cannot assume that the homicide of one cooperative partner by another is an autistic action rather than a cooperative action. For instance, in the case of the cooperative action of mercy killing, one partners killing of the other must be a cooperative action because, from the point of view of the partner mercifully killed, his own homicide is his negotiated and proprietary portion of the common, desired end. Likewise, in the case of the cooperative action of barn raising, one partners taking the entire, newly raised barn in full measure is another partners negotiated and proprietary portion of the common, desired end.
In order to avoid misunderstanding and confusion, we consign homicide to the realm of positive knowledge, i.e., the realm of a posteriori knowledge the realm of empirically testable and observable human behavior. Conversely, we consign the normative corollaries of homicide to the realm of analytical knowledge, i.e., the realm of a priori knowledge the intersubjective realm of rational, cooperative human action. These normative corollaries of homicide are murder, manslaughter, assault, mayhem, battery, rape, kidnapping, extortion, bribery, coercion, malice, spite and the like.
Accordingly, we consign taking to the realm of positive knowledge and the normative corollaries of taking to the intersubjective realm of analytical knowledge and normative cooperative action. These normative corollaries of taking are theft, larceny, embezzlement, forgery, counterfeiting, robbery, burglary, arson, receiving stolen possessions, trespass, plagiarism, lying, cheating, covetousness and the like.
Thus, murder and theft can be rightly understood only as subjective and value-laden terms of praxeological reasoning which describe homicide and taking in the exclusive, intersubjective context of a particular cooperative action. Murder, rightly understood, is one cooperator in a particular cooperative action killing his cooperative partner contrary to the intersubjectively objective terms of their common code of cooperative ethics. Theft, rightly understood, is one cooperator in a particular cooperative action taking his cooperative partners portion of their common, desired end, contrary to the intersubjectively objective terms of their common code of cooperative ethics.
Consequently, it is impossible to imagine a sovereign, common code of cooperative ethics of a specific cooperative action that prescribes murder and theft. Rightly understood, murder and theft contradict cooperative action.
It is equally impossible to imagine a sovereign, common code of cooperative ethics of a specific cooperative action that does not proscribe murder and theft. Such a code would require cooperative partners to be apathetic and ambivalent with regard to attaining their respective proprietary portion of the common, desired end. Just as it is impossible to imagine action without purpose, so it is impossible to imagine cooperation without purpose.
If an autistic actor believes a purpose is unattainable, he will not act to attain it. If a cooperative actor believes a cooperative purpose (the attainment of his proprietary portion of a cooperative, desired end) is unattainable, he will not cooperate to attain it. Therefore, murder and theft must be proscribed as non-cooperative action in the common code of cooperative ethics of every conceivable cooperative action. If murder and theft, rightly understood, were not proscribed, then that cooperative action could not possibly be satisfactory, when considered from the subjective point of view of each of the cooperative partners.
Just as all action is rational and purposeful, so must all cooperative action be rational and purposeful, which means communicative, negotiated, mutually agreed upon, normative and proprietary. This is true despite the ignorance or stupidity or naivete of particular cooperative actors. Any human action in any circumstance must be subjective or intersubjective, autonomous or negotiated, non-ethical or normative, solipsistic or proprietary. In short, in any human action in any circumstance the individual human actor either collaborates with another human actor or he does not. There is simply no other course of action available to human actors.
If a particular cooperative action proscribes the killing of one partner by another, then it is reasonable for partners in that cooperative action to infer for themselves a legitimate, ethical cooperative right to life.
Similarly, if a particular cooperative action proscribes the taking of particular tangible things as autistic acts of theft, then it is reasonable for partners in that cooperative action to infer for themselves a legitimate, ethical cooperative right to property in those particular tangible things.
If, by the same token, a particular cooperative action proscribes the taking of particular intangible things (e.g., a mans reputation, soul or intellectual accomplishment) as autistic acts of theft, then it is just as reasonable for partners in that cooperative action to infer for themselves a legitimate, ethical cooperative right to property in those particular intangible things (IP).
The above describes the correct genesis of the concept of rights in general and property rights in particular. Since the partners of any particular cooperative action may agree to proscribe any particular human action as unethical and autistic, and agree to prescribe any particular human action as ethical and cooperative, it follows that IP and copyright are wholly legitimate and ethical when considered from the point of view of the partners in that particular cooperative action.
Summary and Conclusion
N. Stephan Kinsella believes he has proven that the concept of property springs from an objective fact of nature: scarcity. In truth, his argument is demonstrably illogical and untrue.
Our argument proves that the wellspring of rights in general and property rights in particular is not some squirrelly concept of an absolute and objective natural scarcity, but human action, more specifically, cooperative human action. Indeed, not once in our discussion of cooperative action and the genesis of the concept of rights and property does the word scarcity appear... or does it need to appear.
Seeking to substitute a more satisfactory state of affairs for a less satisfactory one, cooperators mutually agree upon an intersubjective code of cooperative ethics which prescribes ethical cooperative action and proscribes the unethical autistic actions of murder and theft, proscriptions which themselves imply specific cooperator rights to life and property (whether tangible or intangible). Although such prescriptions and proscriptions may not be objectively moral or ethical no human actions are proscriptions against the theft of intellectual products and prescriptions for copyright are nevertheless cooperatively and intersubjectively understandable, ethical and legitimate.
As fellow cooperators in society28 and, as fellow cooperators in a future libertarian society, we disagree about proscribing the taking of intellectual products as theft. We disagree about prescribing copyright as the means of protecting intellectual products as property. Our disagreements are rooted in economics, philosophy and ideology. However, as a libertarian, it seems to this author that the societal end we must value above all others is peace (i.e., the mutual satisfaction resulting from a successful cooperative action). We have proved that the only means to this end are clear and absolute proscriptions against theft and murder. We have reason to believe that most libertarians, even Kinsella,29 would agree.
It is the opinion of this author that, without copyright, our fellow cooperators would be enticed to draw fuzzier lines in general between what is mine and what is yours. Fellow cooperators would likely be less honest in their interpersonal exchanges of tangible goods and services. They would likely be less respectful of property boundaries, more prone to cheat, to forge, to plagiarize, to steal trademarks and to pilfer identities.
Kinsellas argument is a glimpse through the window of what would likely be in a cooperative action (libertarian society) without IP and copyright. Kinsella argues that property is an absolute and objective individual right (...I am entitled to do what I want with my own property my car, my paper, my word processor including improving my cars carburetor or using my ink to print words on my paper.30), and that IP rights deny third parties of this absolute and objective individual right of property. Consequently, any prospective libertarian society must deny IP rights.
However, this argument flies in the face of all we have learned about cooperative action. We know that in a cooperative action individual property rights are not absolute or objective, but necessarily cooperative and intersubjective. We know that partners in a particular cooperative action cannot assume they have a positive, individual right to act autistically. Thus, a cooperative partner in a libertarian society which proscribes the theft of IP cannot arbitrarily proclaim his absolute and objective individual right to act autistically with respect to his own property (i.e., my ink and my paper).
If such an assumption were proper in a particular libertarian society which proscribed counterfeiting as an autistic action, then that libertarian society would be faced with the impossible contradiction that a human action could be at once both autistic and cooperative, at once both unethical and ethical. In other words, libertarian partners in that cooperative action could legitimately assume that counterfeiting currency, bank notes, bearer bonds and the like is an ethical, cooperative action so long as it is done with their own ink and paper, despite the fact that such counterfeiting is proscribed as an unethical, autistic action by that societys common code of cooperative ethics.
Yet, this is the libertarian society Kinsella advocates. Unless, of course, Kinsella prefers a libertarian society in which counterfeiting were not proscribed as an unethical, autistic action, in which case partners would have the right to counterfeit with impunity so long as they used their own ink and paper. We will wager such a cooperative action is not one many libertarians would find satisfactory.
Furthermore, consider Kinsellas unusual (legalistic) notions of authorship. He dismisses the creative writing process as merely authoring an original expression of ideas...merely thinking of and recording some original pattern of information... [emphasis added]31 A novel, to Kinsella, becomes a mere pattern of words,32 a mere idea. As such, citing Thomas Jefferson,33 Kinsella concludes that a novel is an idea and, thus, cannot be property.34
But is a novel merely an idea? Merely a recipe?35 Merely a form of instruction? Is it possible to distill a unique and complex pattern of words called a novel into something as simple and trite as a mere idea? Or does a particular pattern of words running at times over a thousand pages comprise something else?
Kinsella writes that ...a copyright comes into existence automatically the moment the work is fixed in a tangible medium of expression...36 We would argue that what is known as a novel comes into existence the moment it is fixed in a tangible medium of expression. We can imagine a novel existing in no means other than a tangible medium of expression.
Nor can we imagine a novel existing disembodied from its tangible medium. Can a mind live absent the body? Can a novel live absent ink and paper (or electrons and computer screen)?
Nor can we imagine transferring a novel to another person as a mere idea rather than as an exact and entire pattern and number of words fixed in a particular medium of expression. Ideas may be free goods requiring no need to economize their employment. However the media required to transfer a novel to another user are certainly not free goods. Even though electronic publishing on the Internet is an extremely cheap medium for the transfer of a novel from person to person, there are still costs and economies involved.
And, if a novel cannot be separated from its tangible medium, then even by Kinsellas mistaken views of scarcity and tangible property a novel must qualify as property worthy of protection by our society.
If our imagination is typical of most human imaginations, then most cooperators would probably agree that pirating a novel should be proscribed in any prospective, libertarian cooperative society. Consequently, most would infer that a novel should be the authors intellectual property in the context of that society.
However, regardless of the respective power of our imaginations, the truth is that we libertarians may disagree on the common code of ethics of our prospective libertarian cooperative action (society). We may argue that a cooperative prescription of copyright is ill advised, foolish or counterproductive, even when considered from the point of view of the cooperators themselves.
Nonetheless, we may not argue that a prescription of copyright is improper, illegitimate or contrary to the cooperative nature of man or counter to Nature itself.
The harsh truth is that if we, as libertarians, allow our disagreements to be absolute and non-negotiable, if we base our arguments against IP on a flawed logic or on a faux objective morality which is exclusionary and not subject to amendment, which leads us to the misguided conclusion that it is impossible for a novel to be the property of its author, we may not be able to cooperate at all in any conceivable, widespread libertarian society.
In that case, the baby, as they say, will have been thrown out with the bath water.
1N. Stephan Kinsella, Against Intellectual Property, (Auburn, AL: Ludwig von Mises Institute, 2008), p. 37. [Available online at: http://mises.org/books/against.pdf]
2 Ibid., p. 42
3 Ibid., p. 40, n. 76
4 Ibid., p. 31
5 Ibid., p. 29
6 Ibid., p. 42
7 Ibid., p. 30
8 Ibid., p. 36
9 Ibid., p. 30
10 Ibid., p. 30
11 Wikipedia defines and explains the equivocation fallacy: http://en.wikipedia.org/wiki/Equivocation_fallacy
12 Kinsella adds to the confusion by consistently using the word interpersonal along with conflict.
13 Hans-Hermann Hoppe, Kinsellas obvious intellectual mentor, is an Austrian economist who shares Kinsellas peculiar concept of economic scarcity. However, Hoppes analysis of the concept is deficient in the same way as Kinsellas. See Hans-Hermann Hoppe, The Economics and Ethics of Private Property, (Auburn, AL: LewRockwell.com, 2004) [Available online at: http://www.lewrockwell.com/hoppe/hoppe11.html].
14 George Reisman, Capitalism: A Treatise on Economics, (Ottawa, IL: Jameson Books, 1998), p. 54, [Available online at: [http://www.capitalism.net/Capitalism/CAPITALISM_Internet.pdf]
15 Murray N. Rothbard, Man, Economy and State with Power and Market, (Auburn, AL: Ludwig von Mises Institute, 2009), p. 5 [Available online at: http://www.mises.org/books/mespm.pdf]
16 Ludwig von Mises, Human Action: A Treatise on Economics, (San Francisco, CA: Fox & Wilkes, Fourth revised edition, 1996), p. 93 [Available online at: http://mises.org/Books/humanaction.pdf]
17 Kinsella, Against Intellectual Property, p. 30
18 Ibid., p. 33
19 Ibid., p. 34
20 Ibid., p. 31
21 Mises, Human Action, p. 667
22 Ibid., p. 11
23 Ibid., p. 194
24 Ibid., p. 143 ff. For a detailed discussion of cooperative action see also my paper: The Praxeology of Human Cooperation.
25 Ibid., p. 157 ff.
26 Ibid., p. 21
27 Ibid., pp. 13-14
28 Ibid., See p. 143 ff. for a discussion of cooperative action and society. Mises writes: The total complex of the mutual relations created by such concerted actions is called society.
29 Kinsella, Against Intellectual Property, p. 36. Kinsella treats peace and cooperation as ends sought by suggesting that ...conflicts are avoided and peace and cooperation are achieved by allocating property rights...
30 Ibid., p. 53
31 Ibid., p. 35
32 Ibid., p. 32
33 Ibid., p. 32. Kinsella quotes Jefferson: He who receives an idea from me, receives instruction himself without lessening mine...
34 Ibid., p. 33. Kinsella writes: ...ideas, therefore, are not candidates for property rights.
35 Ibid., p. 35
36 Ibid., p. 10
Hoppe, Hans-Herman. The Economics and Ethics of Private Property, Boston: Kluwer Academic Publishers, 1993
The Ethics and Economics of Private Property, Auburn, AL: LewRockwell.com, 10/11/2004
Kinsella, N. Stephan. Against Intellectual Property, Auburn, AL: Ludwig von Mises Institute, 2008
Mises, Ludwig von. Human Action, 4th rev. ed., San Francisco: Fox & Wilkes, 1996
Socialism, trans. by J. Kahane, 2nd ed., Indianapolis, IN: Liberty Fund, Inc., 1981
Reisman, George. Capitalism, Ottawa, IL: Jameson Books, 1998
Rothbard, Murray N. Man, Economy and State with Power and Market, Auburn, AL: Ludwig von Mises Institute, 2009
© 2009 Bob Schaefer
Back to Molinari Society page