As a followup to various posts (The L. Neil Smith – FreeTalkLive Copyright Dispute (archived comments); Recent Blogposts on The Libertarian Standard and Mises Blog; Russell Madden’s “The Death Throes of Pro-IP Libertarianism”; Replies to Neil Schulman and Neil Smith re IP; see also Jeff Tucker, L. Neil Smith on IP), I see Smith has posted another article, “The Medium and the Message,” that touches on IP.
In this piece, he again states that IP is valid but without offering any justification. He explicitly compares IP abolitionists to those who want to tax and regulate and censor the Internet: after describing these nefarious types, he turns to IP opponents, describing us as an “equally deadly threat to freedom of expression”. Yes, he literally said that. We are simply envy-filled socialists: “Like the socialists they are, most of them appear to envy and hate the creators of intellectual property, and relish a future they imagine in which it’s impossible to earn a living by writing.” We are not libertarians; we are thieves: “Opponents of intellectual property rights are nothing more than thieves, and, no matter what they may claim, neither are they libertarians.”
But he provides no argument at all for the proposition that IP is a legitimate type of property. He just calls it theft. And he says, “There can be, of course, no moral distinction between physical and intellectual property …..” The “of course” apparently is supposed to do all the work here.
[TLS]
Stephan,
Here’s a property rights question for you.
Let’s say I own a time-share condo.
One year, during the two weeks I own the time share — the two weeks where I exclusively own rights to use it — I decide to vacation somewhere else, and leave the condo vacant during those two weeks.
Someone else uses my time share during my two weeks of ownership, without my consent.
Now, this is a non-rivalrous use of my time-share, since I wasn’t using it. No provable harm has been done to me.
So by the non-rivalrous definitions you’ve been using to justify copying without license, have any property rights of mine been violated?
Neil
Neil,
The use of your property without your consent is exactly the definition of trespass. But we all agree on this because we libertarians all agree that the condo is a scarce resource, it is a subject of property, and that you are the owner. This is all easy and elementary, and non-controversial. This analysis doesn’t change by some observation that it’s a “non-rivalrous use” of the time share. This is in fact false. The condo is a physical object that is in fact rivalrous. If you are the owner it does not mean that you are the only one who CAN use it. It means you get to decide, you get to say, who uses it: that means you can use it yourself, or not; you can give others permission to use it, or you can deny them permission. Here, you denied permission, but it was used anyway. That is a classic case of trespass. None of us disagrees on this.
The dispute between us arises since we do NOT agree on whether non-scarce things like patterns of information are legitimate subjects of property. The only reason I bring up rivalrous is that it is obvious that the quality of scarcity or rivalrousness of a thing is something we libertarinas all agree on that makes something property. It helps explain the function of the property rules: when there is rivalrousness, there is the chance of conflict; so a property rule permits the thing to be used peacefully and productively instead of the contestants violently battling over it.
Once you realize this, it’s not too hard to see that in the world of physical action and force, of causal laws and action using means to change things–then assigning property rihgts in scarce things exhausts all that canbe done. If you make up proeprty rights in non-scarce things like information patterns, this has to come at the expense of rights in scarce things, just as adding positive welfare rights comes at the expense of negative rights.
Stephan,
It took a while but I finally got you. Your condition of “non-rivalrous” usage is not now and never has been a necessary condition for exclusive property ownership.
A novel manuscript, a single recording or sheet music of a song, or a painting — before any copies are made — are all singular, scarce objects, just as a condo is a single, scarce object.
A time share licenses usage of that condo into multiple time units. If one divides the condo usage into two-week shares, usage has now been “copied” twenty-five times. There are now 26 usage units where before there was but one.
Usage of any of those units without permission is trespass. You’ve just conceded that. Because usage of any of these newly created time-usage units is non-rivalrous with the others, we have now clearly negated “non-rivalrousness” as a necessary condition of property rights.
The person who uses my usage unit without my permission when I’m not using it has not deprived me of anything. Yet, you concede that they have violated my property rights.
In effect, you acknowledge that “squatting” — unauthorized use of an unused property without permission of the owner — is a violation of property rights even though it is clearly a non-rivalrous use. You are willing to call that tresspass.
Yet, when I argue that my ownership of a manuscript I’ve created, or a recording or sheet-music of a song, or a painting, likewise gives me exclusive rights to license use of that thing — including restricting the right to use it which is non-rivalrous — you then create a definition of “non-rivalrousness” regarding the uses to negate my exclusive right to licenses uses.
Thus, your entire case for “non-rivalrousness” as a necessary condition for the claim of property rights is refuted THUS.
J. Neil Schulman
Stephan,
It took a while but I finally got you. Your condition of “non-rivalrous” usage is not now and never has been a necessary condition for exclusive property ownership.
Again, you mean rivalrousness,but no, you have refuted nothing. this is all a bunch of bluster and needless confusion that just makes the waters murky and imprecise and metaphorical; it’s a simple issue that is evident if you don’t make it cloudy.
Neil’s argument seems to rest on a misunderstanding of the term “scarcity.” If a resource is scarce, then there’s some way of using it which precludes at least one other way of using it that would otherwise have been possible. This doesn’t imply that every way of using it precludes every other way of using it.
Hence, a trespasser might use my property in a way that doesn’t conflict with the use I happen to be making of it, but this doesn’t mean my property isn’t scarce.