For today’s lecture, some libertarian thoughts on the problem of intellectual property from Stephan Kinsella.
I’m regularly exposed to libertarian ideas at places like Marginal Revolution and EconLog. I like a lot of the ideas, but I wouldn’t describe myself as libertarian.
Kinsella wrote a paper called “Against Intellectual Property.” I’m slowly making my way through it. TV and the Internet have reduced my attention span down to a nub, so I often find it challenging to digest scholarly pieces like this. Especially when the footnotes consume on average half of the page.
In “Against Intellectual Property,” he talks about the first-possessor rule of property ownership. Since I can’t be bothered at the moment to research this idea further, I’m going by what I read in the paper and what occurs to me to wonder about, and it seems there is a problem with the rule.
Going with the theme of Kinsella’s example in the excerpt at the end of this post, suppose I’m one of the first fifty human beings on earth and we’re all starting out in what is now the state of New York. We have a village there and we each own a 1/4 acre of land with white picket fences defining our property boundaries.
Then one day, Thog wanders west out of the village and claims the rest of the continent–and why not say the rest of the world–by the rule of first-possessor. What determines original possession? Why should Thog get the whole world this way? It brings up the question of fairness, and I sometimes worry that when the revolution comes along, its leaders will want to reallocate my own small amount of property in the interests of fairness.
Setting aside that question, here’s an excerpt from the paper. I liked that it highlights one of the problems of patents, that so much control is granted to people for coming up with ideas.
Proponents of IP must also advocate a new homesteading rule to supplement, if not replace, the first-possessor homesteading rule. They must maintain that there is a second way for an individual to come to own tangible property. To wit, the IP advocate must propose some homesteading rule along the following lines: “A person who comes up with some useful or creative idea which can guide or direct an actor in the use of his own tangible property thereby instantly gains a right to control all other tangible property in the world, with respect to that property’s similar use.” This new-fangled homesteading technique is so powerful that it gives the creator rights in third parties’ already owned tangible property.
For example, by inventing a new technique for digging a well, the inventor can prevent all others in the world from digging wells in this manner, even on their own property. To take another example, imagine the time when men lived in caves. One bright guy–let’s call him Galt-Magnon–decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins. But the first man to invent a house, according to IP advocates, would have a right to prevent others from building houses on their own land, with their own logs, or to charge them a fee if they do build houses. It is plain that the innovator in these examples becomes a partial owner of the tangible property (e.g., land and logs) of others, due not to first occupation and use of that property (for it is already owned), but due to his coming up with an idea. Clearly, this rule flies in the face of the first-user homesteading rule, arbitrarily and groundlessly overriding the very homesteading rule that is at the foundation of all property rights.
–N. Stephan Kinsella, “Against Intellectual Property”, p32-33
http://www.mises.org/journals/jls/15_2/15_2_1.pdf
Think about software patents, how with computers we are starting to build these amazing things in machines that sit on our desktop, but other people want to control what can be done with them. We’re on the verge of something as big as coming out of the caves, and people are trying to tell us if and how we can build our log houses.
It’s silly. And worse, it’s harmful.
9 Comments
Great post.
29 October 2006 at 1:41 pm
Stephan Kinsella? Really? Thank you.
29 October 2006 at 8:09 pm
Privacy, Truth, and Liberty.
What more can an artist need?
I will not accept the enslavement of my fellow man, nor any imposition upon his liberty, as reward for the publication of my art.
30 October 2006 at 6:17 am
For more elaboration on the nature of homesteading, see: How We Come To Own Ourselves and Defending Argumentation Ethic, available at http://www.stephankinsella.com/publications.php#rightsth.
See also Rothbard, Ch. 8 of Ethics of Liberty: http://www.mises.org/rothbard/ethics/eight.asp “Some theorists have maintained—in what we might call the “Columbus complex”—that the first discoverer of a new, unowned island or continent can rightfully own the entire area by simply asserting his claim. (In that case, Columbus, if in fact he had actually landed on the American continent—and if there had been no Indians living there—could have rightfully asserted his private “ownership” of the entire continent.) In natural fact, however, since Columbus would only have been able actually to use, to “mix his labor with,” a small part of the continent, the rest then properly continues to be unowned until the next homesteaders arrive and carve out their rightful property in parts of the continent.”
and: Rothbard, in Law Property Rights and Air Pollution: http://www.mises.org/story/2120
“In our discussion of homesteading, we did not stress the problem of the size of the area to be homesteaded. If A uses a certain amount of a resource, how much of that resource is to accrue to his ownership? Our answer is that he owns the technological unit of the resource. The size of that unit depends on the type of good or resource in question, and must be determined by judges, juries, or arbitrators who are expert in the particular resource or industry in question.”
30 October 2006 at 2:53 pm
Thanks for the pointers, Stephan. Will have to read more about this.
It makes sense that first possessors should be able to claim some amount of land that they can reasonably put to use, but how about this one: We develop advanced nanotechnology and space travel capable of bringing us to a single inhabitable world.
Various groups are working to make the journey, and one of them would be the first to arrive on the planet with self-replicating machines. Within a few days or weeks, these machines have built an infrastructure spanning the new world.
Have these few people effectively asserted a claim based on putting the land to active use? When the next batch of settlers arrives–not to mention the billions of other people who may have wanted to move off the crowded home planet–are they out of luck?
In that situation, it may be hard to find arbitrators with sufficient expertise to judge the matter.
Just thinking out loud. My reading list is always growing but I’ll get to those links — thanks again for sharing them.
30 October 2006 at 8:25 pm
Wow. You are to be encouraged. :)
8 November 2006 at 9:42 am
This whole article rocked, but the last line sums it up nicely.
“It’s silly. And worse, it’s harmful.”
Excellent, I couldn’t have said it better myself!!!
-M
2 March 2008 at 1:49 pm
Thanks, Max!
2 March 2008 at 2:13 pm
This is a fascinating article (relevant to my interests since I’m in Trademark Law.) Thank you so much.
16 July 2008 at 5:11 pm