There are various ways to explain what is wrong with IP. You can explain that IP requires a state, and legislation, which are both necessarily illegitimate. You can point out that there is no proof that IP increases innovation, much less adds “net value” to society. You can note that IP grants rights in non-scarce things, which rights are necessarily enforced by physical force, against physical, scarce things, thus supplanting already-existing rights in scarce resources. (See, e.g., my Against Intellectual Property, “The Case Against IP: A Concise Guide,” Mises Daily (Sept. 4, 2009) (comments on Mises blog archived here) and other material here.)
Another way, I think, to see the error in treating information, ideas, patterns as ownable property is to consider IP in the context of the structure of human action. Mises explains in his wonderful book Ultimate Foundations of Economic Science that “To act means: to strive after ends, that is, to choose a goal and to resort to means in order to attain the goal sought.” Or, as Pat Tinsley and I noted in “Causation and Aggression,” “Action is an individual’s intentional intervention in the physical world, via certain selected means, with the purpose of attaining a state of affairs that is preferable to the conditions that would prevail in the absence of the action.”
Obviously, the means selected must therefore be causally efficacious if the desired end is to be attained. Thus, as Mises observes, if there were no causality, men “could not contrive any means for the attainment of any ends”. Knowledge and information play a key role in action as well: it guides action. The actor is guided by his knowledge, information, and values when he selects his ends and his means. Bad information–say, reliance on a flawed physics hypothesis–leads to the selection of unsuitable means that do not attain the end sought; it leads to unsuccessful action, to loss. Or, as Mises puts it,
Action is purposive conduct. It is not simply behavior, but behavior begot by judgments of value, aiming at a definite end and guided by ideas concerning the suitability or unsuitability of definite means.
So. All action employs means; and all action is guided by knowledge and information. (See also Guido Hülsmann’s “Knowledge, Judgment, and the Use of Property,” p. 44. [Update: See also Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”, discussing Mises’s views that production is “directed by reason”; “Production is alteration of the given according to the designs of reason. These designs—the recipes, the formulas, the ideologies—are the primary thing; they transform the original factors—both human and nonhuman—into means. Man produces by dint of his reason; he chooses ends and employs means for their attainment.”])
Causally efficacious means are real things in the world that help to change what would have been, to achieve the ends sought. Means are scarce resources. As Mises writes in Human Action, “Means are necessarily always limited, i.e., scarce with regard to the services for which man wants to use them.”
To have successful action, then, one must have knowledge about causal laws to know which means to employ, and one must have the ability to employ the means suitable for the goal sought. The scarce resources employed as means need to be owned by the actor, because by their nature as scarce resources only one person may use them. Notice, however, that this is not true of the ideas, knowledge and information that guides the choice of means. The actor need not “own” such information, since he can use this information even if thousands of other people also use this information to guide their own actions. As Professor Hoppe has observed, ” in order to have a thought you must have property rights over your body. That doesn’t imply that you own your thoughts. The thoughts can be used by anybody who is capable of understanding them.”
In other words, if some other person is using a given means, I am unable to use that means to accomplish my desired goal. But if some other person is also informed by the same ideas that I have, I am not hindered in acting. This is the reason why it makes no sense for there to be property rights in information.
Material progress is made over time in human society because information is not scarce and can be infinitely multiplied, learned, taught, and built on. The more patterns, recipes, causal laws that are known add to the stock of knowledge available to actors, and acts as a greater and greater wealth multiplier by allowing actors to engage in ever more efficient and productive action. (It is a good thing that ideas are infinitely reproducible, not a bad thing; there is no need to impose artificial scarcity on these things to make them more like scarce resources; see IP and Artificial Scarcity.) As I wrote in “Intellectual Property and Libertarianism“:
This is not to deny the importance of knowledge, or creation and innovation. Action, in addition to employing scarce owned means, may also be informed by technical knowledge of causal laws or other practical information. To be sure, creation is an important means of increasing wealth. As Hoppe has observed, “One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways.” While production or creation may be a means of gaining “wealth,” it is not an independent source of ownership or rights. Production is not the creation of new matter; it is the transformation of things from one form to another — the transformation of things someone already owns, either the producer or someone else.
Granting property rights in scarce resources, but not in ideas, is precisely what is needed to permit successful action as well as societal progress and prosperity.
This analysis is a good example of the necessity of Austrian economics–in particular, praxeology–in legal and libertarian theorizing (as Tinsley and I also attempt to do in “Causation and Aggression“). To move forward, libertarian and legal theory must rest on a sound economic footing. We must supplant the confused “Law and Economics” movement with Law and Austrian Economics.
Touched on this topic many times:
- See Intellectual Property and Economic Development.
- Hayek: see Hayek’s Views on Intellectual Property:
- “the rise of our standard of life is due at least as much to an increase in knowledge which enables us not merely to consume more of the same things but to use different things, and often things we did not even know before. And though the growth of income depends in part on the accumulation of capital, more probably depends on our learning to use our resources more effectively and for new purposes.
The growth of knowledge is of such special importance because, while the material resources will always remain scarce and will have to be reserved for limited purposes, the users of new knowledge (where we do not make them artificially scarce by patents of monopoly) are unrestricted. Knowledge, once achieved, becomes gratuitously available for the benefit of all. It is through this free gift of the knowledge acquired by the experiments of some members of society that general progress is made possible, that the achievements of those who have gone before facilitate the advance of those who follow.”
“… The range of what will be tried and later developed, the fund of experience that will become available to all, is greatly extended by the unequal distribution of present benefits; and the rate of advance will be greatly increased if the first steps are taken long before the majority can profit from them. Many of the improvements would indeed never become a possibility for all if they had not long before been available to some. If all had to wait for better things until they could be provided for all, that day would in many instances never come. Even the poorest today owe their relative material well-being to the results of past inequality.” Update: Re the “fund of experience” notion: see also Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948), discussing scientific discoveries which add to the “storehouse of knowledge of all men”; also discussed in Elizabeth I. Winston, “The Technological Edge.” See also “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward“: “For elaboration, see Kinsella, “Hayek’s Views on Intellectual Property,” C4SIF Blog (Aug. 2, 2013) and “Intellectual Property and the Structure of Human Action,” discussing Hayek’s comments about how the accumulation of a “fund of experience” helps aid human progress and the creation of wealth. See also Kinsella, “Tucker, ‘Knowledge Is as Valuable as Physical Capital,’” C4SIF Blog (March 27, 2017).”1
- also Tucker, Hayek: Spread of Non-Scarce Knowledge is the Key to Progress; Tucker, “Misesian vs. Marxian vs. IP Views of Innovation“; Tucker, “Hayek on Patents and Copyrights“
- Tucker, “Knowledge Is as Valuable as Physical Capital”
- Hayek’s Views on Intellectual Property: Hayek, fund of experience
- “The growth of knowledge is of such special importance because, while the material resources will always remain scarce and will have to be reserved for limited purposes, the uses of new knowledge (where we do not make them artificially scarce by patents of monopoly) are unrestricted.Knowledge, once achieved, becomes gratuitously available for the benefit of all. It is through this free gift of the knowledge acquired by the experiments of some members of society that general progress is made possible, that the achievements of those who have gone before facilitate the advance of those who follow…All the conveniences of a comfortable home, of our means of transportation and communication, of entertainment and enjoyment, we could produce at first only in limited quantities; but it was in doing this that we gradually learned to make them or similar things at a much smaller outlay of resources and thus became able to supply them to the great majority.A large part of the expenditure of the rich, though not intended for that end, thus serves to defray the cost of the experimentation with the new things that, as a result, can later be made available to the poor. The important point is not merely that we gradually learn to make cheaply on a large scale what we already know how to make expensively in small quantities but that only from an advanced position does the next range of desires and possibilities become visible, so that the selection of new goals and the effort toward their achievement will begin long before the majority can strive for them.””
- “Although the fact that the people of the West are today so far ahead of the others in wealth is in part the consequence of a greater accumulation of capital, it is mainly the result of their more effective utilization of knowledge. There can be little doubt that the prospect of the poorer, “undeveloped” countries reaching the present level of the West is very much better than it would have been, had the West not pulled so far ahead. Furthermore, it is better than it would have been, had some world authority, in the course of the rise of modern civilization, seen to it that no part pulled too far ahead of the rest and made sure at each step that the material benefits were distributed evenly throughout the world. If today some nations can in a few decades acquire a level of material comfort that took the West hundreds or thousands of years to achieve, is it not evident that their path has been made easier by the fact that the West was not forced to share its material achievements with the rest—that it was not held back but was able to move far in advance of the others?Not only are the countries of the West richer because they have more advanced technological knowledge but they have more advanced technological knowledge because they are richer. And the free gift of the knowledge that has cost those in the lead much to achieve enables those who follow to reach the same level at a much smaller cost. Indeed, so long as some countries lead, all the others can follow, although the conditions for spontaneous progress may be absent in them. That even countries or groups which do not possess freedom can profit from many of its fruits is one of the reasons why the importance of freedom is not better understood.Civilization Can Be Copied [n.b.: this header was not present in the original chapter; it was inserted in the Freeman reprint. —SK]For many parts of the world the advance of civilization has long been a derived affair, and, with modern communications, such countries need not lag very far behind, though most of the innovations may originate elsewhere.”
- Mises: Mises 1978b (Salerno) https://mises.org/library/ludwig-von-mises-social-rationalist/html/c/587: .”[K]nowledge is a tool of action. Its function is to advise man how to proceed in his endeavors to remove uneasiness”” – Also, from HA: “”Action is purposive conduct. It is not simply behavior, but behavior begot by judgments of value, aiming at a definite end and guided by ideas concerning the suitability or unsuitability of definite means.””
- Rothbard: ““There is another unique type of factor of production that is indispensable in every stage of every production process. This is the “technological idea” of how to proceed from one stage to another and finally to arrive at the desired consumers’ good. This is but an application of the analysis above, namely, that for any action, there must be some plan or idea of the actor about how to use things as means, as definite pathways, to desired ends. Without such plans or ideas, there would be no action. These plans may be called recipes; they are ideas of recipes that the actor uses to arrive at his goal. A recipe must be present at each stage of each production process from which the actor proceeds to a later stage. The actor must have a recipe for transforming iron into steel, wheat into flour, bread and ham into sandwiches, etc. The distinguishing feature of a recipe is that, once learned, it generally does not have to be learned again. It can be noted and remembered. Remembered, it no longer has to be produced; it remains with the actor as an unlimited factor of production that never wears out or needs to be economized by human action. It becomes a general condition of human welfare in the same way as air.”
- Huelmann’s article on “Knowledge, Judgment and the Use of Property.” https://mises.org/system/tdf/rae10_1_2.pdf?file=1&type=document
- See also Guido Hülsmann’s “Knowledge, Judgment, and the Use of Property,” p. 44.)
Against Monopoly comments:
Can’t the argument disproving the legitimacy of intellectual property be simplified to recognizing that two or more people can independently develop the same idea. If two or more people can independently develop an “idea” then how can one person assert “ownership”????Intellectual property, as a concept, presents a logical conundrum, how can one person have property right to an idea that is denied to the others who also legitimately developed the same idea.
[Comment at 01/06/2010 06:20 AM by Steve R.]
Two people can never independently develop the same idea. They are two ideas that happen to be similar (indistinguishably).Two dissimilar objects do not magically collapse into a single object just because they become so highly similar that people cannot distinguish between them. Clearly, such magic does not happen in this universe. They remain two distinct objects.
It may be that our language blinds us to this reality, e.g. the use of ‘same’ to mean both ‘indistinguishably similar’ (“I have the same phone as you”) and ‘identical’ (“Is that the same phone you had yesterday”).
THEREFORE, GIVEN THAT SIMILARITY DOES NOT CONFER IDENTITY, people do own the ideas they think up and when they fix them in a medium or realise them in a mechanism then they become their intellectual property. Only patent attempts to legislate the idea that similarity connotes identity and thus that there can only be one owner of a distinct idea or fixation thereof.
However, let’s also not forget that copying is as perfectly natural as intellectual property, so if you lend or give someone your IP, then they are naturally at liberty to copy it. It is only copyright that attempts to legislate the idea that you can give someone an intellectual work and prohibit them from copying it.
Patent and copyright are unnatural.
Intellectual property is as natural as material property.
In other words, there’s nothing invalid or unnatural about IP once you eliminate the 18th century privileges that unnaturally augment it (or attempt to).
[Comment at 01/06/2010 07:15 AM by Crosbie Fitch]
Of course, this assumes that you believe in “natural” anything. The only “natural” I believe in is existence and the law of tooth and claw. All else are constructs of man and inherently flawed.The only “natural” rights anyone has, exclusive of those given to living being by nature, are those invented by someone. If something was truly universal and as obvious as either Kinsella or Fitch say, then there would be universal agreement. Even Libertarians do not uniformly define natural rights or what those rights are. Until they do so, the term is meaningless, as meaningless as Kinsella claims “ownership of intellectual property” is, and perhaps more so since “natural” rights require even more in the way of artificial constructs than intellectual property, including patents and copyrights seems to (I can at least see a single set of rules for patents and copyrights, looking for “natural” rights leads to all sorts of arguments amongst Libertarians at to what they mean).
Patents and copyrights might well by “unnatural,” as Fitch claims. I similarly claim that “natural” rights are just as unnatural (except for the laws of nature, exemplified by “eat or be eaten” and “might makes right,” both with actual nature behind it), especially when “natural” rights exist only under the guise of the Libertarian religion, and especially when various sects of the Libertarian religion have different beliefs regarding same.
[Comment at 01/06/2010 07:57 AM by Anonymous]
[Comment at 01/06/2010 07:58 AM by Steve R.]
- See also Julio H. Cole, “Patents and Copyrights: Do the Benefits Exceed the Costs?”, J. Libertarian Stud. 15, no. 4 (Fall 2001): 79–105, p. 84 et seq., discussing the importance of technical progress (not to be confused with patents) to economic growth. In this regard, Cole cites in n.12: Robert M. Sherwood, Intellectual Property and Economic Development (Boulder, Colo.: Westview Press, 1990), pp. 82–83; Robert M. Solow, “Technical Change and the Aggregate Production Function,” Review of Economics and Statistics 39 (1957), pp. 312–20; and Edward F. Denison, Accounting for Slower Economic Growth (Washington, D.C.: Brookings Institution, 1979). [↩]