The basic premise of libertarianism is well stated in the movie The Fifth Element: “Seno Akta Gamat!”

Property is a selfish idea.

This statement has two components.

Property is selfish.

Property is an idea.

You look around and nothing in a state of nature is made with a stamp on it saying that anybody owns it. There are mountains, valleys, plains, lakes, seas, ice masses, and oceans. There are creatures great and small. There are fields of grasses, dense forests, trees and vines bearing fruit, all sorts of edible plants and fungi.

Then come human beings who look around, put up fences, take stuff and turn it into other — sometimes brand new — stuff, and say to other human beings, “This which I messed around with is mine and not yours. Use it without my permission and there’s going to be big trouble.”

I’m called a defender of “intellectual” property. I’ve been denying this for as long as it’s been said for a simple reason: nothing but human intellect makes anything property.

Nothing in a state of nature is property.

Ideas are not property. Ideas make things property.
–J. Neil Schulman, Tweet June 6, 2012

It’s only the application of human intellect to things found in a state of nature that makes anything property.

There is no more of a distinction to be made between “intellectual” property and “stupid” property than there are distinctions between any other kinds of property.

Gutenberg Bible, Lenox Copy, New York Public Library, 2009

Human action encompasses activities that are both obviously useful and activities the utility of which is intangible.

If I put food on a plate in front of you, the usefulness of the food is barely debatable: human beings are animals that survive by ingesting food used by the body to sustain life.

If I make a dwelling that keeps you dry during rains, warm during winter, unmolested by the sun’s lethal radiation, the utility of the dwelling is also obvious.

But if I tell you a joke, sing you a song, tell you a story that in the retelling helps you put your child to bed, make a book that by trying to explain your place in the universe makes it easier for you to put yourself to bed at night, the utility is subtler.

The utility of any thing is defined by what a user can do with it. The value of a thing is defined by what a user is willing to exchange for it — either one’s own investment in time and toil or by exchange with someone else to get it. All of modern economics is an attempt to analyze, understand, and better plan human activities based on the above fundamental truths.

Beginning a few decades beyond two centuries ago, a moral philosopher named Adam Smith wrote a book launching a new discussion on the right and wrong ways to make nations richer. Since then others have called this book the beginnings of economics as a science, and subsequent writers from Karl Marx to Ludwig von Mises have written their own books to take up Adam Smith’s discussion.

It’s beyond my scope in this brief essay to discuss the overall history of ideas in the science of economics; but I do want to make it clear that what we debate in discussions about property are ideas.

Property does not exist in nature.

Property is an abstract intellectual concept.

When we discuss “property” we are discussing what human actions are rightful by general moral principles, by utility to the individual human being or some wider group of individual human beings — and these days there are human beings who demand that the discussion be widened to the general welfare of non-human animals, plants, and even the spiritual needs of our planet, which they address as “Gaia.”

I’m a libertarian. My moral philosophy is that only beings that can communicate the thought “I am and this is what I demand” qualify for my consideration as actors — and that to qualify as a member of the class of moral actors one needs to be able to be put on trial by other moral actors for the consequences to others of one’s acts. Anything other than responsible moral actors may be worthy of privileges, immunities, and protection — but how and what those are will be decided in councils of moral actors.

Those acts that moral actors may take without prior permission of another moral actor is the beginning of the abstract concept of a “right.” Those rights — the collection of actions that may be taken without another’s permission — those right-sanctioned actions when taken as a whole — is called “liberty.”

Making the use of a thing exclusive to the decisions of a particular moral actor is the foundation of what we call property rights. A property right is an action with respect to a non-sapient thing that a morally responsible actor may take without permission from another.

Now.

There are current writers who argue that there is a distinction to be made between things that are scarce and common — the use of which is “rivalrous” or “non-rivalrous” — and these distinctions define what may and may not rightfully be considered property.

But absolute non-scarcity of a thing is not a distinction that universally disqualifies a thing as ineligible for a claim that a particular human being has a rightful moral claim to its exclusive use.

Water is ubiquitous on planet Earth — three quarters of the surface of this planet is covered with it, sometimes to great depth — yet a canteen of potable water to a man trekking through a desert can be private property that is the difference between life and death.

Nor is the “rivalrous” or “non-rivalrous” use of a particular thing a distinction that disqualifies a thing from being the exclusive property of a specific human owner.

A bed that I use only eight hours a night does not become open to “non-rivalrous” use during the other 16 hours in a day merely because my body is not lying on it. If I own the bed — if it is my private property — my moral rights to exclusive determination of how and when that bed is used are the definition of ownership.

Declaring me selfish by my disallowing others to use the bed in my absence is an attack on the concept of private property, and the negation of individual human rights as the moral basis for organizing human utilization of the things we dedicate to our uses.

This is an abstract discussion of moral premises.

So far this is not a discussion of what things are but what moral actions we may take with respect to them.

But there is now a discussion that things which human beings make that exist only as replicable art may not be private property. The argument is made that a thing which is replicable can be used by more than one person at a time because another’s use of a copy does not deprive the original owner of anything. He still has exclusive use of the original.

But that’s simply not true.

Art is not knowledge.
–Brad Linaweaver, in a discussion with the author

A novel is a longish written-down story, the function of which is to be communicated from its author to someone else, who is its audience. Writers do not write novels for their own individual use. It is written as a trade good for the use of others.

When I write the novel it exists first as a thing separate and distinguishable from anything which carries it — paper, computer-readable memory, or even the brain of a human being with eidetic memory.

If the composition of words is rendered into digital form, the file has a unique file size and each line of text has a unique checksum; but the novel itself is a uniquely identifiable sequence of alphanumeric characters. A computer can identify this novel in comparison to other digital files as a unique thing as easily as it can compare the digital images of two fingerprints and determine one of them to be a unique identifier of a single human being among billions.

Ever notice thieves and communists scream like Gollum “My precious! Mine! Mine! Mine!” the second you enforce the original property right?
–J. Neil Schulman, Tweet June 6, 2012

A thing which can be identified as a unique object qualifies as a thing that can be claimed as private property. The number of media carriers upon which this unique thing can be stored and displayed is a variable; yet there is a singular and unique thing that exists no matter whether the number of displays or carriers is the single manuscript upon which it was first imprinted or the millions of carriers upon which it is communicated to its intended audience.

To deny this property right is to deny that the thing exists, or that it is a commercial trade good. Without this recognition there is no thing that the audience may enjoy and no thing that its author has made for their use.

The distinction between these media-carried properties and other kinds of property is not a question of economics or morality.

The primary question is not who does or does not own this thing. That moral and economic question is answered when we have acknowledged that a thing exists. At that point, those who believe in individual, selfish property rights grant the right of ownership to the human being who brought it forth from nothingness in an act of ex nihilo creation.

Or at least it is as close to nothingness that can be observed on a blank piece of paper, or gazing at a blank monitor screen, when I fill it in with avalanches of words.

The persistent fallacy of the anti-IP crowd: all private property is an expression of human intellect. Private property is itself an idea.
–J. Neil Schulman, Tweet June 6, 2012

Atheists these day debate with the religious about whether the universe is the product of dumb nature or intelligent design.

Atheists these days debate with the religious about whether God created the Heavens and the Earth.

Surely atheists do not need to debate with the religious about whether J. Neil Schulman created this essay you just read?

I’ve been cornered into writing about “intellectual” property for over three decades. It’s been a distraction from the fundamental core arguments about the nature of property I’ve intended to make.

It’s not an accident I titled this article “Human Property.” I intended that title to have the impact of titles like Capital and Human Action.

It’s not a complicated idea I’m trying to get across so I was able to be terse about it. Unlike Marx and Mises, I did not need to expound at tome length.

But if shorter essays by Thoreau can inspire a Gandhi or Martin Luther King, I don’t see any reason why my little essay on the nature of human property can’t be as inspirational for a new generation of libertarians who have been lied to by moral idiots.

–J. Neil Schulman, from an email about this article written to Brad Linaweaver

Related Articles by J. Neil Schulman:

An Inquiry into the Nature and Causes of the Poverty of Nations

Who Has Rights?

The Libertarian Case for IP

MCP

Copying Is Not Theft? How About Identity Theft?

Copying Is Not Theft? How About Forgery? Counterfeiting? Plagiarism?

My Unfinished 30-Year-Old Debate with Wendy McElroy

Karl Marx versus Political Correctness

Also L. Neil Smith’s Guest Editorial:

Little Criminals — The Context of Consent

This article is Copyright © 2012 The J. Neil Schulman Living Trust. All rights reserved.