Comments on Bedirhanoğlu and Schaefer

Molinari Society’s 2009 Symposium on Intellectual Property

by Roderick T. Long


Comments on G. Nazan Bedirhanoğlu’s History of the Reification of the Intellect

Nazan Bedirhanoğlu’s task is to trace the origin of intellectual property by focusing on the relations of production in which it is embedded – a project that accords well with the left-libertarian critique of intellectual property.* As she rightly points out, IP laws, despite being ’marketed” as a means of protecting and rewarding creators and innovators, actually tends to protect and reward large corporations at the expense of such creators and innovators.

But Bedirhanoğlu goes on to suggest that the spread of intellectual property laws is to be traced in part to the rise of capitalism and of broadly Lockean ideas of property; and here I want to make some left-libertarian distinctions.

There have been broadly Lockean-minded theorists on both sides of the IP debate, so it may well be true that the spread of IP was driven by ideas that were in some sense of Lockean provenance. But a strong case can be made for thinking that Lockean principles must be substantially distorted in order to press them into service on behalf of IP. Locke himself makes fairly clear that the justification of private property depends on there being no way to make effective use of a good unless it is removed from the commons: although “no body has originally a private dominion, exclusive of the rest of mankind,” in any external goods, Locke tells us, yet “being given for the use of men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man.” (Second Treatise V.) But the objects for which IP is proposed are precisely such things as can be made use of without establishing exclusive private dominion over them; and so the Lockean case for IP would appear to fail.

As Thomas Jefferson writes:

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 ... the moment it is divulged, it forces itself into the possession of every one, 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. ... Inventions then cannot, in nature, be a subject of property. (Letter to Isaac McPherson, 13 August 1813.)


Moreover, IP rights would appear to conflict with other rights that Locke defends. For example, if I acquire some piece of information from you (say, by hearing you recite a poem or watching you demonstrate some new invention), that information is now encoded in my brain – which, by Lockean standards, I own. If I now transcribe that information onto paper that I own, using ink that I also own, or otherwise assemble things that I own in accordance with that information, and provide the results to other people either gratis or for a consideration – how can my freedom to do these things be infringed without violating my Lockean right to make peaceful use of the products of my labour?

To quote Jefferson once more:

If we have a right to use three things separately, I see nothing in reason or in the law, which forbids our using them all together. A man has a right to use a saw, an axe, a plane, separately; may he not combine their uses on the same piece of wood? He has a right to use his knife to cut his meat, a fork to hold it; may a patentee take from him the right to combine their use on the same subject? (Letter to Oliver Evans, 16 January 1814)


Or, as Kevin Carson puts it, IP represents “an artificial monopoly on the right to perform a certain action – to arrange material elements or symbols in a particular configuration”; and “unlike property in tangible goods and land ... enforcement of ‘property rights’ in ideas requires the invasion of someone else’s space.” Such injustice, Carson notes, is “exacerbated by government funding of research and innovation” (at the taxpaters’ expense), which leads to “private industry reaping monopoly profits from technology it didn’t spend a penny to develop.” (Carson 2006, ch. 5.) In this sense, a consistent Lockean position must agree with Bedirhanoğlu’s suggestion that IP’s focus on information functions to obscure what is happening to and with concrete particular material goods. As simultaneously a form of censorship, of protectionism, and of government-granted monopoly – all violations of Lockean rights – IP seems an unpromising candidate for Lockean justification.

What of IP’s relation to capitalism? As Charles Johnson points out, the term “capitalism” is systematically ambiguous among three different meanings:



I would add that “socialism,” as the theoretical antithesis of “capitalism,” is subject to precisely the same ambiguities.

As Johnson goes on to note, the first two senses of “capitalism” – free market and corporate state – are starkly opposed to each other, involving radically different “relations of production” (and if Lockean principles support capitalism in the sense of free markets, then they utterly condemn capitalism in the sense of corporate statism). Capitalism in the third sense, boss-directed labour, is technically compatible with either of the first two, though it’s a matter of dispute as to whether it has greater affinity with one, and if so which. (Both right-libertarians and their Marxist critics tend to regard capitalism-3 as the likely or inevitable outcome of capitalism-1, though they differ over their evaluation of this outcome; while left-libertarians tend to argue that that capitalism-3 results rather from capitalism-2 and would have difficulty surviving under capitalism-1.)

The libertarian critique of capitalism-2 actually antedates the Marxist critique; the idea of society as a system of exploitation of productive labourers on behalf of a privileged bourgeois class, along with the call for the abolition of class rule and the withering away of the state, was actually pioneered by free-market libertarians like Charles Dunoyer and Thomas Hodgskin and later borrowed by Marx – though unlike Marx, his libertarian predecessors regarded government intervention as the chief enabler of such exploitation, and thus advocated capitalism-1 as the cure for capitalism-2. (Hart 1994, Stack 1998, Raico 2006, Long 2009.)

The case for regarding IP as inconsistent with Lockean principles is also, I maintain, a reason to regard IP as inconsistent with, and so a fortiori not an outgrowth of, capitalism-1. But as Carson has shown, “capitalism” as the western world has known it over the past several centuries – including the so-called “laissez-faire” period – has been largely capitalism-2 rather than capitalism-1: “the violent reconstruction of society by a statist revolution from above” rather than a free market:

Both state socialists and corporate welfare queens, for nearly identical reasons, have a common interest in maintaining the myth of the laissez-faire nineteenth century. The advocates of the regulatory-welfare state must pretend that the injustices of the capitalist economy result from the unbridled market, rather than from state intervention in the market; otherwise, they could not justify their own power as a remedy. The apologists of big business, on the other hand, must pretend that the regulatory-welfare state was something forced on them by anti-business ideologues, rather than something they themselves played a central role in creating; otherwise their worst fears might be realized, and the interventionist state might actually be pruned back. (Carson 2006, ch. 5.)


And there is in fact a long libertarian tradition of seeing IP as an instrumentality of capitalism-2. The 19th-century American individualist anarchist Benjamin Tucker, for example, started from the libertarian principle of “the freedom of the individual, his right of sovereignty over himself, his products, and his affairs, and of rebellion against the dictation of external authority,” and on the basis of this principle was led to embrace the goal of “taking capital away from government-protected monopolies and putting it within easy reach of all individuals.” This goal included the abolition of all laws “protecting inventors and authors against competition for a period long enough to enable them to extort from the people a reward enormously in excess of the labor measure of their services, – in other words, in giving certain people a right of property for a term of years in laws and facts of Nature, and the power to exact tribute from others for the use of this natural wealth.” (Tucker 1897; cf. Proudhon 1868.)

Likewise, Carson notes:

The patent privilege has been used on a massive scale to promote concentration of capital, erect entry barriers, and maintain a monopoly of advanced technology in the hands of western corporations. It is hard even to imagine how much more decentralized the economy would be without it. (Carson 2006; cf. Boldrin and Levine 2008, as well as http://praxeology.net/anticopyright.htm.)


My chief goal in these comments, then, has been to situate the IP debate in the context of the capitalist-1 critique of capitalism-2, and thus to draw to Bedirhanoğlu’s attention a body of work that reinforces her suspicions about IP’s role as part of an exploitative economic system, but from a perspective with which she may be less familiar.


Comments on Bob Schaefer’s Response to Kinsella: A Praxeological Look at Intellectual Property Rights

Stephan Kinsella (2008) takes an approach to IP that roughly corresponds to what I have been claiming is the proper Lockean position. (There are some important differences between Kinsella’s approach and the standard Lockean one – some of which I regard as improvements and some not – but Bob Schaefer’s critique does not turn on these differences so I will set them aside.) According to Kinsella, the function of property rights is to prevent conflict over the use of scarce resources; since intellectual products are not scarce – that is, one person’s use of an intellectual product does not exclude another’s – no conflict over their use can arise, and so Kinsella concludes that intellectual products are not appropriate objects of property rights.

Schaefer charges that Kinsella equivocates in his use of the term ‘conflict,’ sometimes meaning by it actual strife, and at other times meaning merely the impossibility of two or more people using the same resource simultaneously in incompatible ways.

Kinsella’s claim that property rights are supposed to prevent conflict makes sense, says Schaefer, only if ‘conflict ’ means strife; for if ‘conflict ’ means the impossibility of simultaneous mutually exclusive use, then obviously property rights cannot prevent conflict in this sense; nothing can.

But Kinsella’s claim that conflict can arise only over scarce resources makes sense, Schaefer maintains, only if ‘conflict ’ means the impossibility of simultaneous mutually exclusive use; for when ‘conflict ’ means strife, people can clearly get into conflicts over nonscarce resources just as much as over scarce ones.

Now to begin with, it’s not obvious to me that this last claim is true. At any rate, it’s certainly open to Kinsella to deny that there are genuine conflicts over nonscarce resources. After all, part of the point of his critique of intellectual property is that apparent conflicts over nonscarce abstract objects are really conflicts over scarce concrete particulars – that the novelists’s claim to his novel, for example, is really a demand to control the particular bits of paper and ink in which copies of it are realised – paper and ink that is already legitimately owned by people other than the novelist.

But suppose we concede Schaefer’s contention that strife need not arise solely over scarce resources. Then I still think Schaefer is being uncharitably restrictive in the choice of interpretive options he offers us. When two people want to make mutually exclusive use of the same resource, then we have – not strife, necessarily, but a problem. Some rule or set of rules to determine who gets to use what when is a solution to the problem; and systems of property rights surely are such rules or sets of rules. If by ‘conflict’ we take Kinsella to mean, neither strife on the one hand nor the impossibility of simultaneous mutually exclusive use on the other, but rather the problem of lacking a rule to determine which of two or more mutually exclusive uses shall prevail, then Kinsella can easily say, without equivocation, both that conflict can arise only over scarce resources, and that property rights function to prevent such conflicts.

Schaefer’s second objection is that Kinsella is departing from the praxeological approach which both Kinsella and Schaefer profess to accept, by employing an objective rather than a subjective conception of scarcity (or, for any Randians in the audience: an intrinsic rather than an objective conception of scarcity; cf. Long 2005). For the praxeological tradition, Schaefer reminds us, scarcity is a concept that applies in the context of purposeful action; means are scarce (or nonscarce) relative to the ends to which they may be put; yet Kinsella erroneously treats scarcity and nonscarcity as though they were objective natural facts.

This objection also seems to me to miss the mark. For if we distinguish what Kinsella is talking about and what Schafer is talking about by using the terms ‘objective scarcity’ and ‘subjective scarcity’ respectively, it quickly becomes apparent that objective scarcity, while not sufficient for subjective scarcity, is necessary for it. In other words: the amount of a good can be limited in absolute terms and yet still count as a free good in praxeological terms (since the amount that exists can be greater than the amount needed to satisfy existing wants), but the amount of a good cannot be unlimited in absolute terms and yet still count as an economic good in praxeological terms (since the amount needed to satisfy existing wants cannot be greater than the absolute amount when the latter is infinite). Hence Mises refers to recipes as “free goods” on the grounds that “their ability to produce definite effects is unlimited.” (Human Action, p. 364)

Hence I cannot agree with Schaefer’s claim that a “direct, logical line from the objective and given conditions of nature to the subjective, human notion of property .... cannot be drawn.” Scarcity in the praxeological sense is not something that exists solely in the agent’s private consciousness; rather, it consists in a relation between that consciousness and extramental reality, and so it has extramental conditions.

Later in the paper, Schaefer argues that even if, for example, a novel is a nonscarce resource, it must be embodied in tangible media, and those media must accordingly qualify, even by Kinsella’s standards, as “property worthy of protection by our society.” But if this is offered as a point against Kinsella, then I’m puzzled; for of course Kinsella does think that the tangible media in which a novel is embodied are property worthy of protection. If a novel is embodied in ink and paper that I own, a hard drive that Schaefer owns, and a massive collection of refrigerator magnets that Kinsella owns, then the embodiment in my ink and paper is my property, the embodiment in Schaefer’s hard drive is Schaefr’s property, and the embodiment in Kinsella’s refrigerator magnets is Kisnella’s property. Schaefer also suggests that a society without intellectual property would be more likely to engage in various other immoral activities; the only example he gives, however, is that of counterfeiting: if I have the right to publish your book using my own ink and paper, then I must also, absurdly, have the right to counterfeit money using my own ink and paper.

I don’t see how this inference is supposed to work. After all, Kinsella isn’t claiming that you have the right to do whatever you want to so long as you do it with your own property; I don’t, for example, have the right to shoot you just because I’m using my own gun and my own bullets. Rather, what Kinsella is claiming is that you have the right to do whatever you want to so long as you do it only with your own property. The problem with shooting you with my own gun and bullets is that I’m sending my bullets into your body (and thus forcibly interfering with your exclusive use of what is properly yours).

So let’s consider the counterfeiting case. Suppose I print piles of counterfeit hundred dollar bills and keep them to myself, perhaps papering my walls with them for aesthetic reasons. In that case, it’s hard to see how any libertarian could object.

But now suppose that I begin to engage in economic transactions with them; I offer you a counterfeit bill, falsely representing it as genuine, and thus induce you to provide me with some good or service you would not otherwise have provided. In this case, then, I have extracted from you, under false pretenses and so against your will, some actual concrete particular good, or some use of your concrete particular mental and physical faculties; so of course from a libertarian perspective I have violated your rights, for I am no longer using only my own property. Kinsella’s point is that there is nothing analogous in the copyright case. So the slippery slope that Schaefer postulates from copyright violations to illicit counterfeiting does not appear to be a real one.

Schaefer argues that in a cooperative libertarian society, an individual agent cannot legitimately deny intellectual property rights if the prevailing ethos in that society reocgnises them; to do so would be uncooperative (dare we say “unmutual,”?). And if he further supposes that, on the assumption that his “imagination is typical of most imaginations,” any such society is indeed likely to accept IP.

Starting with the second assumption, I don’t know why he assumes that a preference for IP is inherent in the human imagination. Throughout most of human history, there was no such thing as IP; and even today, there are many flourishing fields of creative endeavour, such as the fashion industry, where IP is mostly nonexistent.

But it’s the first assumption – that it’s uncooperative and unlibertarian to deny IP rights if the prevailing ethos in society recognises them – that I find especially puzzling. Does this apply across the board? For example, would it be uncooperative, and so unlibertarian, to reject slavery if the prevailing ethos in society recognises it?

If Schaefer says yes, then surely we have bade libertarianism farewell – which I took not to be Schaefer’s intention.

On the other hand, if Schaefer says no, then what is the difference between slavery and IP? Schaefer may say that slavery is uncooperative; but (leaving aside Schaefer’s own apparent view that what is or isn’t cooperative depends on social conventions) Kinsella’s point is that IP is likewise uncooperative, since – like slavery, albeit to a lesser degree – it interferes with a person’s peaceful use of her own property.

[Note: Various sections of these comments are likely to be cut from the oral presentation in the interests of time, but the entire following section is especially likely to be cut:

Let me close with some comments on Schaefer’s broader theory of cooperative ethics.

It seems to me that the claim that praxeology rules out an objective ethics itself turns on an equivocation on value-subjectivism. We must distinguish between explanatory value-subjectivism and normative value-subjectivism. Explanatory value-subjectivism holds that in explaining an agent’s actions, we must appeal only to her own subjective values; and this is surely correct. But it does not entail normative value-subjectivism, which holds that no set of subjective values is more justified than any other. The fact that actions must be explained in terms of the agent’s subjective values no more implies that there is no objective good than the fact that actions must be explained in terms of the agent’s subjective beliefs implies that there is no objective truth. On the contrary, I actually think, on broadly Socratic and Aristotelean grounds, that the having of subjective values commits us to accepting the existence of objective values; but going into that would take us beyond the scope of our present discussion. (For some details see Long 2005, 2006a, 2006b.)

Later in the paper, Schaefer suggests that accepting objective values means allowing our normative disagreements to become “absolute and non-negotiable.” But again, I don’t see why this argument, if it worked, wouldn’t likewise work against objective truth. If I think the earth is objectively flat and you think it’s objectively round, does this commit us to treating our agreement as “absolute and non-negotiable”? Of course not; instead you look for evidence and arguments that will convince e, and I look for evidence and arguments that will convince you. Now perhaps Schaefer is assuming that there’s no analogous procedure for value disagreements; but I don’t see why the method of reflective equilibration is any worse off in ethics than it is in science. (cf. Long 2000, 2003, 2006c.)

I’m not sure how helpful I find the distinction between autistic and cooperative action as Schaefer draws it. Suppose A acts in order to produce satisfaction in B, but from purely benevolent motives and without expecting any return. (Perhaps A derives psychic satisfaction from her action, but if so it’s not dependent on any purposeful response from B.) By Schaefer’s definitions this would seem to count as an autistic rather than cooperative, and thus as outside the realm of ethical concern – which seems odd. (For that matter, even purely self-regarding actions are ordinarily taken to be subject to ethical assessment, as Mises himself admits at one point (“rational behaviour, directed solely toward one’s own good, should be called ethical too.” – Socialism, p. 408).

In any case, Schaefer’s suggestion that an action’s counting as autistic or cooperative depends on a code of cooperative ethics strikes me as getting things upside down; the whole notion of a cooperative ethics seems to me to rest on, and thus to presuppose, an independent notion of cooperative action, so I don’t see how the latter could in turn be based on the former.]

Roderick T. Long
Philosophy, Auburn University

Notes

* By left-libertarianism I mean the position that Kevin Carson has described as agreeing “with the Greens and other left-wing decentralists on the evils to which they object in current society and on their general view of a good society,” but “with free market libertarians on their analysis of the cause of such evils and how to get from here to there,” or in summary form, “green ends with libertarian means.” (Carson 2008, pp. 1-2.) Or, in historical terms, I mean the movement that, while having its roots in the individualist anarchism of the 19th century (particularly such figures as Thomas Hodgskin, Lysander Spooner, Benjamin Tucker, and Voltairine de Cleyre), emerged or re-emerged in the 1960s through the rapprochement between libertarianism and the New Left (as represented by Murray Rothbard’s journal Left & Right, as well as the early years, at least, of its successor Libertarian Forum), was continued in the 1970s by Samuel Konkin’s “Movement of the Libertarian Left,” and broadened in recent years into the Alliance of the Libertarian Left (http://all-left.net). Left-libertarianism in this sense should not be confused with the more recent use of the term to describe the neo-Georgist position of such theorists as Peter Vallentyne, Hillel Steiner, and Michael Otsuka (though overlap between these two forms of left-libertarianism is certainly possible).

References

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