J. Neil Schulman
@ Agorist.com
@ Agorist.com
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
Copying Is Not Theft? How About Identity Theft?
Copying Is Not Theft? How About Forgery? Counterfeiting? Plagiarism?
Also L. Neil Smith’s Guest Editorial:
This article is Copyright © 2012 The J. Neil Schulman Living Trust. All rights reserved.
Winner of the Special Jury Prize for Libertarian Ideals from the 2011 Anthem Film Festival! My comic thriller Lady Magdalene’s — a movie I wrote, produced, directed, and acted in it — is now available free on the web linked from the official movie website. If you like the way I think, I think you’ll like this movie. Check it out!
June 4, 2012 - 6:10 am
This is a masterpiece of a concise statement of principles about the nature of property that I have ever seen. I love it. And I shall recommend this to others.
Brad Linaweaver’s statement about the disjunction between art and knowledge is brilliant.
June 4, 2012 - 10:29 am
Neil,
I have been following your writings for years now. This short essay is no exception to your other excellent works.
You have restated eloquently Mises’s simple declaration; “Property is a human device.” None but the most dull of minds would believe that this premise does not apply in some fundamental way, to the artistic and literary creations of the human mind. And none but those intellectually dishonest proponents of some deeper agenda would cling to the argument that this premise is limited by simple scarcity.
The principle of first possession applies equally well to works of artistic or literary value, as you yourself have argued in your formulation of “media-carried property”. The likes of anti-MCP opponents do not deny that such human products exist; they argue that they are rightfully declared a resource of the commons. I agree that negating the obvious utility of MCP rights on the basis of the ease of replication leads to the Marxist concept of collectivism that is antithetical to the principle of private property.
Any honest analysis of the process of production and consumption, starting from any number of points of departure, moral, economic, or legal, leads inevitably to the same conclusion.
If one cannot recognize the obvious utility of MCP as a property right, then that same logic leads to a denial of the fundamental basis of all property rights.
Well done.
June 4, 2012 - 11:01 am
Yet, if I go and build my own house after seeing the one you built, you define my house as yours.
And if I make a meal that tastes like yours did after eating yours, you define it not as my meal but again yours.
This is why so-called “intellectual property” fails so badly. There is only force and fraud. Singing the same song you sang is neither force (depriving you of the song) nor fraud (I have made no claim to have sung it first). So-called “intellectual property” must have an entirely new crime created especially for it, one which exists for nothing else that people call property: mimicry.
And then there must be vast complicated structures of law and illogic, like “fair use”, “parody”, “public domain”, and the rest of the exceptions, exemptions, qualifications, durations, and disqualifications, all to try to rationalize what is fundamentally irrational.
Your failed business model is not justification to impose your values violently upon everyone else. If you cannot find a way to profit by the same ability everyone else has, to release one’s work at a time, place, and to persons of one’s choosing, then find another line of work.
If writing turns out to be only a hobby, then so be it. Few people figure out how to make money building model trains, either. Yet model trains get built.
June 4, 2012 - 11:46 am
Adam Smith was a moral philosopher. Underlying the Austrian School’s value-free approach to analyzing human action is the need to understand that human action itself can’t be value free. Human behavior has to be judged as within morally acceptable bounds or not.
Libertarians who attempt to weasel out of the moral component of property claims merely because in ignoring this they get freebies are skunks at a picnic. And libertarians with a sense of decency should shun them.
And specifically to you, Mr. Robertson:
If you can’t tell the difference between a moral right and a business model, you’re not fit to be my friend or neighbor.
June 4, 2012 - 11:57 am
Bill Ritch and Rob @ Wildberry:
Now you make good neighbors!
Neil
June 4, 2012 - 12:23 pm
I very much enjoyed this post and find it classically Libertarian. My sister is senior copyright attorney for a large news organization and we have discussions on such laws with a fair degree of frequency. There are indeed subtleties and nuances regarding the value of copyright law to the First Amendment, and the need for some flexibility of copyright law in order to protect the very same First Amendment. Such issues are alive and discussions ongoing at all turns. As an artist I also concern myself with these issues.
For example, artists have used and referred to published photographs since photography was invented. There was a major and very important exhibition at the Museum of Modern Art in New York of artworks done after popular images and advertising called HIGH AND LOW: MODERN ART AND POPULAR CULTURE. It posed many interesting questions about the ownership of images and where the line is crossed when “borrowing” or expropriating popular images.
“Fair use” clauses do allow for rather generous interpretations of such borrowing. If there is enough originality in a derivative work – let’s say, Duchamp’s mustache on a print of the Mona Lisa, or a painting of a Velazquez painting by Picasso – then the derivative work becomes copyrightable in itself, although in the case of the Duchamp the artist is questioning whether a work which is so frequently reproduced can even be a cultural icon, and, by extension, whether anything can be. Although copyright law does encourage an artist’s or author’s free speech rights by offering strong degrees of protection, to deny the right of another artist to refer to a past work would in turn deny his or her free speech rights. of course, the decision of whether or not a work of art imitates the original too closely is a subjective matter. Some laws have been put neatly into place and other interpretations prove to be more difficult. Parody is one of the protected forms, as is almost any comment on a work which might put it in a political light.
There was recently a very interesting case in which an artist used a photograph published by AP for which the copyright ownership was questionable, in order to create the now famous poster of Obama. Unfortunately that case was somewhat marred by the fact that the artist lied about which photograph he had used, so that no really clear or narrow law could come out of it and the two parties settled.
It is my opinion that the multiplicity of editions have no bearing on whether or not a work is afforded full protection. Such an edition is made up of multiple originals and it is the unique expression of the idea which is copyrighted.
Thanks for an interesting and very topical discussion.
June 4, 2012 - 12:35 pm
Property totally exists in nature. If you take away my one-year-old’s stuffed hippo, she’ll get really mad at you. She’s never read any libertarian theory, and she’s not using any “abstract intellectual concepts”. Rather, she appears to have an emotional notion of “mine!” that’s been violated. My suspicion is that, gobbledygook about “unique objects” and “trade goods” and “nothingness” aside, most libertarian defenders of IP are motivated by the same.
June 4, 2012 - 12:57 pm
Your child is a genius!
June 4, 2012 - 1:01 pm
——– Original Message ——–
Subject: Re: Human Property « J. Neil Schulman
Date: Mon, 4 Jun 2012 14:34:59 -0400 (EDT)
From: TSZASZ@xxxxxxxxxx
To: jneil@jesulu.com
CORRECT. Tom
In a message dated 6/4/2012 2:41:08 A.M. Eastern Daylight Time, jneil@jesulu.com writes:
http://jneilschulman.agorist.com/2012/06/human-property/
June 4, 2012 - 1:14 pm
I agree with Joel and submit that even my dog has notions of private property. Just try to take away his bone…
June 4, 2012 - 1:30 pm
Yes, and dogs will fight over a bone. Animals will fight over territory.
But settling such disputes by referencing a moral code instead of victory in battle is a human invention.
June 4, 2012 - 2:00 pm
Exactly.
June 5, 2012 - 7:32 am
They say there are really only seven stories in the world and everything ever written have been but variations on those themes – but what riches lies in those Seven!
http://us.penguingroup.com/static/html/blogs/seven-stories-rule-world-matt-haig
Authors have a long history of borrowing stories and themes from one another and they never violate the other author’s property. For example, “West Side Story” reinterprets Shakespeare’s “Romeo and Juliet” (1591) which in its turn used Arthur Brooke’s poem, “Romeus and Juliet” written in 1562, later turned into a prose story, “The Palace of Pleasure” by William Painter in 1582, which related an Italian folk story based on actual events that took place in Verona in 1303.
In the Elizabethan period, poets answered each others’ works with works of their own, each parodying or echoing the last. Christopher Marlowe’s, “Passionate Shepherd to His Love” was answered, supposedly by Sir Walter Raleigh with, “The Nymph’s Reply To the Shepherd” and slyly, erotically, echoed by John Donne in “The Baite”. In all, there were at least five poems which answered, imitated, or otherwise framed themselves in the same form as Marlowe’s, including one by Shakespeare, and some written in modern times by the likes of William Carlos Williams.
In summary, even “borrowing” themes, rhythms and story lines affords rich, original and unique works. The “call and response” between authors, even over many centuries is part and parcel of the creative process and is amply protected by our copyright laws and by our Constitution. There is no need to argue over the validity of protection for each unique form of expression of one of the age-old themes, i.e, a book, disc, or editions of prints. Distribution of such editions, even for pay, is always a dialogue with our fellow humans.
June 5, 2012 - 3:07 pm
Originality comes in different flavors and serving sizes. William Shakespeare’s most enduring play, Romeo and Juliet is based on The Tragical History of Romeus and Juliet by Arthur Brooke — but few who didn’t look it up on Wikipedia as I did would know that since Shakespeare’s telling of that story is the one everybody knows and the source material is an obscure historical footnote.
Shakespeare added something original that made the story universal.
In my 1973 interview with him author Robert A. Heinlein said that an author is influenced by every other writer he’s ever read; and you can find influence in Heinlein from writers including H.G. Wells, Mark Twain, Upton Sinclair, George Bernard Shaw, and James Branch Cabell — and therefore the writers that influenced them. I was influenced by reading Heinlein. We writers don’t write in a vacuum.
But Stranger in a Strange Land is original. Heinlein has original thoughts to convey and has created in that novel unforgettable characters, quotable quotes, and a variation on millennia of stories about prophets and their martyrdoms.
It’s only the envy of those who can’t make up anything original and compelling who try to say there’s nothing new under the sun, and argue that there’s nothing but common coin.
Fuck that noise.
June 5, 2012 - 6:16 pm
You may also be interested by the story of the Sea Venture, a ship which was wrecked on the island of Bermuda in 1609 and on which John Rolfe, future husband of Pocahontas, was sailing. The English settlement of Jamestown, of course, eventually led to the establishment of our United States. It is widely believed that a popular broadsheet relating the story of the wreck published and circulated by William Strachey, a fellow survivor and an enthusiastic frequenter of London’s theater circuit, was the inspiration for Shakespeare’s “The Tempest”…
SPOKEN BY PROSPERO
“Now my charms are all o’erthrown,
And what strength I have’s mine own,
Which is most faint: now, ’tis true,
I must be here confined by you, 5
Or sent to Naples. Let me not,
Since I have my dukedom got
And pardon’d the deceiver, dwell
In this bare island by your spell;
But release me from my bands 10
With the help of your good hands:
Gentle breath of yours my sails
Must fill, or else my project fails,
Which was to please. Now I want
Spirits to enforce, art to enchant, 15
And my ending is despair,
Unless I be relieved by prayer,
Which pierces so that it assaults
Mercy itself and frees all faults.
As you from crimes would pardon’d be, 20
Let your indulgence set me free. “
June 5, 2012 - 6:33 pm
Heinlein’s favorite quote from Shakespeare, and I once had my mom paint a watercolor for him for a birthday present I sent him, quoting this:
June 6, 2012 - 9:06 am
If you take away my one-year-old’s stuffed hippo, she’ll get really mad at you.
Yes, but if you bought, or sewed, a stuffed hippo just like your daughter’s hippo, and she saw it, I doubt she’d get mad.
June 6, 2012 - 12:56 pm
You have it just backwards. If you took away either hippo the baby would cry — because they’re the same thing.
June 6, 2012 - 6:26 pm
Yes, property is an abstract intellectual concept.
Your discussion of rivalrousness misses the mark. Different people can’t consume the same water, and different people can’t lie in the same place at the same time. Ideas can theoretically be used by all people simultaneously.
“A thing which can be identified as a unique object qualifies as a thing that can be claimed as private property.”
An object is a material thing that can be seen and touched. Paper, hard drives, etc. — things upon which words and numbers can be placed to communicate ideas — are objects. Ideas, since they can not be seen and touched, are not objects. Therefore, by your definition, ideas can not be claimed as private property.
“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.”
What is this “thing” of which you speak? If I place ink on paper and form words that are arranged in the same order as one of your novels, do you become the owner of the ink and paper? If I recite one of your novels aloud, do you become the owner of the sound waves produced? In both cases, I am the human being bringing something forth from nothingness. You certainly did not place the ink on the paper, nor create the sound waves.
June 6, 2012 - 8:09 pm
And you missed the point. This article is not a discussion about the ownership of ideas or restricting the usage of ideas. Ideas can’t be owned.
But “property” is an abstract idea. Property boundaries are like national boundaries on a map — unless someone draws them real big you can’t see them from orbit. Property rights are actions that one can morally take and someone else can’t morally take.
We’re discussing moral behavior, which is a discussion of ideas.
Point at a right. You can’t.
Your approach is entirely reductionist. You might as well argue that if you can’t touch a beautiful woman there is no such thing as love.
And you’re again entirely missing the point.
A novel is not an idea. It’s something objectively real. As I wrote above, “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.”
But the ownership of a thing — the property right in it — is an idea, something abstract.
The novel is a real thing.
The property right in it is an abstract moral concept, just like the property right referring to the use of any other objectively discernible thing.
The “thing” is that which is imprinted on the paper, carried on the soundwaves.
You want to say that something does not exist apart from the paper and soundwaves — but then you say that which does not exist is something you want to use anyway.
That’s like saying there’s an empty canteen, chide me for claiming there’s such a thing as water in the canteen, and you then demand the right to the nothingness inside the canteen which somehow magically without existing will quench your thirst.
When I write a novel for others to read, my moral rights — rights being an abstract concept about rightful or wrongful applications of human behavior– are in my licensing others to read it only under my terms.
My terms are: nobody but me gets to decide who may make copies of it. That’s the application of the moral concept of property rights to these things which I make and are the fruits of my labor.
If my terms aren’t acceptable, read something else the existence of which isn’t the fruits of my labor.
June 7, 2012 - 7:29 am
The “thing” is the unique form in which in idea is carried – whether that form is words, paint, clay, musical notes… Copyright exists in order to protect the particular expression of an idea by allowing an author/artist/composer/poet a means of retaining the uniqueness of the form. The form itself is important because it embodies the idea in such a unique way as to bring a new way of looking at it, therefore engaging in dialogue with other citizens. This is why it is so tied to our First Amendment rights.
Accepting money for one’s production of these unique expressions does not diminish the expressive quality of the “thing”. “The sale of protected materials is also protected. See Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n. 5 & 768, 108 S.Ct. 2138, 2143 n. 5 & 2150, 100 L.Ed.2d 771 (1988) . “It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.” – excerpt from Bery v New York City.
The sale of a “thing” also does not diminish the author/artist composer/poet’s copyrights. Those are a separate issue from the production, distribution or sale of the “thing”. For example, I do not sell my copyrights when I sell a painting. I retain copyrights to my own work and the buyer cannot publish, distribute copies of it or make t-shirts or coffee mugs from the image that I have created, until and unless I specifically sell those rights or give them away, or if the contract I have with a publisher states that whatever I create belongs to them.
Copyright also exists in order to encourage publishers to distribute the ideas once they have purchased them and to come up with fresh ways of making them attractive to a buying public. Thus the dialogue is continued with various business partners as well as people the artist/author, composer/publisher will never meet.
You are free to be inspired by the work of artists/authors, composers and even free to sing their songs or read/recite their poetry/prose in your own private space. But you are not permitted to perform protected works publicly nor to charge money for performing them or distribute them on the Internet, without their express permission or waiting until the allotted amount of time after their deaths or to respect the “fair use” laws that exist and are ample enough to allow you to quote, parody or fully reinvent the works in which you are interested.
June 7, 2012 - 7:56 am
I would be remiss if I did not mention that the unique qualities of a “thing” -qualities nearly as unique as the artist/author, composer him/her/self – is of such importance that Congress enacted VARA – The Visual Artists Rights Act – in 1990. This act grants protection moral rights of a creator of a given work and is the first federal copyright law to do so.
http://en.wikipedia.org/wiki/Visual_Artists_Rights_Act
June 7, 2012 - 9:51 am
My point is that your definition of what can be claimed as private property uses the word “object,” which is defined as a material thing that can be seen and touched. A novel, according to you, is a thing that exists independent of paper, sound waves, and computer-readable memory. Therefore, according to your definitions, a novel is not an object, and can not be claimed as private property. You need to adjust your definitions in order to make your position internally consistent.
“A novel is not an idea. It’s something objectively real.”
Can you point to a novel that is distinguishable from the paper it’s printed on or the computer-readable memory it’s stored on? A novel only exists as an idea until it takes a physical form.
“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.”
I can conceptualize a uniquely identifiable thing with specific characteristics, but it only exists as an idea until it takes a physical form.
“The property right in it is an abstract moral concept, just like the property right referring to the use of any other objectively discernible thing.”
Of course property is an abstract concept, but that does not mean that property can be applied to abstract things. Scarcity is a necessary requirement for the concept of property, and abstract things are not scarce.
At the end of the day, you do not want property rights in the novel itself: you want property rights in the physical things that the novel is imprinted or carried on. The problem with your position is that you want to be able to exercise exclusive control over physical things owned by other people.
June 7, 2012 - 9:14 pm
From the definition at Dictionary.com:
Not a single one of these five definitions requires an object to be made out of atoms or molecules. Electrons or pixels work just fine.
Sure. Take a novel printed on paper. Scan the text into a computer. Now burn the paper. Then reprint the novel onto new paper.
That which survives the destruction of the original paper and exists to be reprinted on new paper is the novel.
You don’t understand what the word “physical” means, either:
Also from Dictionary.com:
Definitions 1 and 5 are irrelevant in this context. Definitions 2 through 5 refer to the physical sciences, which includes both matter and energy. An object that is formed out of electrons or pixels is physical.
A novel is not an abstract thing. It is a specific object with a known and definite sequence of alphanumeric characters. It is a physical thing and can be owned.
It is also a singular thing that can be carried, displayed, or stored on multiple media. But just as holding a book in front of mirrors facing each other can create an infinite regress of images in reflection, there is still only a single object — and that single object is scarce.
Just because you own a bus doesn’t mean you own the people in the bus. Just because you own a truck doesn’t mean you own the cargo.
You aren’t stupid enough to keep pretending that you can’t tell the difference between a book and the composition it carries.
June 8, 2012 - 12:38 am
Me: Yes, but if you bought, or sewed, a stuffed hippo just like your daughter’s hippo, and she saw it, I doubt she’d get mad.
Neil: If you took away either hippo the baby would cry — because they’re the same thing.
You miss my point. I would not take away the girl’s hippo. I’d merely sew a copy hippo, which I’d give to the girl’s friend. The first girl would still keep her original hippo. She wouldn’t cry just because her friend has a similar hippo.
The REAL question, which is often missed in these discussions, is not IF copyright should be protected, but what IS copyright? What are the parameters?
I believe in copyright — but I also believe that the concept has been abused. The length is too long. Fair Use is too narrowly defined.
I think that works should enter the public domain sooner (say, life of author + 18 years) and that Fair Use should be expanded. One should always be allowed to take BRIEF EXCERPTS from ANY medium to incorporate in either nonfiction or fiction works.
Right now, Big Media bullies those who engage in what should be legitimate Fair Use.
For instance, film reviewers should be free to take and upload SHORT CLIPS from films — without the filmmaker’s permission — onto film review websites. But some film reviewers who’ve done this complain of takedown notices from Big Studio lawyers.
Likewise, musicians should be free to take SHORT CLIPS from other songs, and insert them into their songs. But again, Big Music lawyers come knocking on their doors.
To reduce the question to “Are you for or against copyright” plays into the hands of Big Media, because it avoids the real question of what SHOULD be the parameters of copyright.
Wanting shorter terms, and broader Fair Use, is NOT anti-copyright. It’s just an attempt to define it.
June 8, 2012 - 1:42 am
Thomas, nowhere in my article am I discussing copyright law. I am discussing the origins and nature of property rights as they apply as moral sentiments to the reasonable boundaries of human action.
June 8, 2012 - 4:46 am
I think moral sentiments and law can be the same thing and often are. Copyright laws are worked out in Congress. If one wishes to change the laws, then one must take legal actions in that sphere. Personally, I would be more comfortable with copyright law at the original author’s life plus 50 years – pre Sonny Bono Copyright Term Extension Act. Fair use allowances are fairly generous because very tight restrictions threaten Constitutional rights, but large corporations have expensive lawyers and can intimidate others into not exercising their Fair Use rights or legally restricting them to five notes or 6 copies, etc.
At any given moment there are challenges to such laws. If one wishes to change the laws, then one must familiarize oneself with the cases, come up with a constitutionally rational argument and begin to present it.
June 8, 2012 - 9:44 am
“Electrons or pixels work just fine.”
Yes, these are part of the physical world.
“Sure. Take a novel printed on paper. Scan the text into a computer. Now burn the paper. Then reprint the novel onto new paper.
That which survives the destruction of the original paper and exists to be reprinted on new paper is the novel.”
In your example, the novel only exists in specific physical instances, and different people can’t exercise full ownership over the exact same physical things.
“A novel is not an abstract thing. It is a specific object with a known and definite sequence of alphanumeric characters. It is a physical thing and can be owned.”
A novel, as you have defined it, is not a physical thing. “A sequence of alphanumeric characters” is not a physical thing; “a sequence of alphanumeric characters printed on paper” is a physical thing.
“You aren’t stupid enough to keep pretending that you can’t tell the difference between a book and the composition it carries.”
I can conceptually tell the difference, but in physical reality — the realm of property rights — there is no difference. Other human beings can only experience a composition in specific physical instances: a specific book, specific pixels on a screen, a specific live performance, etc. The question is, does the author of a composition own, i.e., have the legal right to exercise exclusive control over, the physical things that it is imprinted or carried on?
June 8, 2012 - 2:18 pm
I don’t buy into the myth that government is a reasonable or functional way to settle these questions. See my article “Welcome to Customer Service.”
June 8, 2012 - 2:21 pm
I have only limited patience with people who don’t respond to what I already wrote to them. Read the definition of “physical” from Dictionary.com that I already posted in response to your previous misuse of the word.
June 8, 2012 - 3:21 pm
I said previously that electrons and pixels are physical.
Your claim is that a novel exists in a physical form that can be owned separately from its specific physical instances.
A sequence of alphanumeric characters printed in a book is a specific physical instance. A sequence of alphanumeric characters on a hard drive is a specific physical instance. A sequence of alphanumeric characters displayed as pixels on a screen is a specific physical instance.
Your claim is that a book is not just a book: it is a “novel” plus a book. If you own the “novel” and I own the book, what is the physical thing that you own in this instance?
Your claim is that a hard drive is not just a hard drive: it is a “novel” plus a hard drive. If you own the “novel” and I own the hard drive, what is the physical thing that you own in this instance?
Your claim is that pixels on a screen are not just pixels on a screen: they are a “novel” plus pixels on a screen. If you own the “novel” and I own the pixels on the screen, what is the physical thing that you own in this instance?
How can a novel physically exist separately from its physical instances?
June 8, 2012 - 5:27 pm
Stephen, are you aware that every seven years the human body changes to completely new molecules?
Are you aware that there are molecules in you that have existed in other human beings, animals, plants, and inanimate objects?
Are you therefore going to say that only the specific molecules that make up your body exist and you have no existence apart from the molecules?
This is the kind of reductionist argument you’re trying to make when you suggest that a novel has no existence apart from its pixels.
If that’s true, then you have no existence apart from your molecules, you have no independent personhood, and burning you alive is just a harmless conversion of your molecules into gas.
June 8, 2012 - 7:28 pm
http://www.thefreemanonline.org/columns/tgif/intellectual-property-versus-real-property/
Sheldon Richman writes, “Note that in both cases ideas are said not to be the object of intellectual property. And yet, ultimately, it is ideas that are at issue. For what is a “form or expression of ideas” if not an idea?”
That is not a legal or moral question; it’s an ontological question.
First of all, all property is an expression of an idea. Nothing in nature exists as property. Property is more a verb than a noun, in that the referent of “property” isn’t a thing but what a human being is entitled under a theory of moral sentiments to restrict others from doing with it.
My “ownership” of my house allows me to preclude the non-rivalrous use of it when I’m on vacation and not using it. Why? In the Netherlands and Mexico a house is considered abandoned if the owner isn’t in continuous residence and a squatter who moves in while the owner is absent becomes the new owner.
Let’s say I own a car and lend it to a friend for the evening – a bilateral agreement not binding on any additional parties. Now my friend, using my borrowed car, parks it at Starbucks, leaves the engine running and the doors unlocked, and while he’s getting his Caramel Macchiato a random stranger gets into the vacant car and drives off. Now, my agreement for use of the car doesn’t apply to this third party who drives off in the car. This new party is not restricted by contract. So do I have or do I not have exclusive property rights that are being violated by this random driver taking possession of the car?
This exactly same situation exists when an opponent of “intellectual” property or copyrights argues that it’s a violation of an innocent third party’s rights to prevent him from making a copy of a novel or make a free download of a song from a torrent site. They argue that any bilateral agreement I make with a publisher or even the person who buys the book can’t be applied to any other party who isn’t a party to that agreement.
But this argument is a negation of all property, in that it assumes that the failure to grant a property right to any random stranger is itself a property right. It assumes that the copy of the novel is a different property than the original — and they argue the “non-rivalrous” use of the copy as proof that it exists without a property claims restricting its use.
But how is that different from the squatter who moves into my house while I’m away? That use is also non-rivalous; it’s only my exclusive property right that makes it a violation. The non-rivalrous of the use is not sufficient to negate the exclusive property right.
So, the argument that a random third party has no obligation to respect a property right because he’s not a party to a contract. and the argument that “non-rivalrous” use does not violate an owner’s exclusionary claim to forbid use of that owned property, have both been shown to be a negation of property rights per se.
The final attempt to create an apartheid between “intellectual” property from any other sort of property is that claim that a novel is merely an abstract idea, not something externally and objectively real, finite, material, and physical.
But in what way is a novel not something material and physical?
A novel starts as abstract ideas but when made into a final and fixed sequence of characters, spaces, and punctuation – what in computer language is a file comprised of a sequence of alphanumeric characters – it becomes something independent of its creator’s mind or ideation, something fixed, observable, measurable and quantifiable, and distinguishable from both all other alphanumeric sequences and separate from the media carrying, storing, and displaying it.
Proof? The novel – the alphanumeric sequences – is written on paper. Then you scan that sequence into a computer. Now you burn the paper.
If the alphanumeric sequence has no material identity as a thing separate from the paper, burning the paper destroys it as well. But if that sequence can be carried on other media, we have proof that its existence is independent of the medium – it exists as its own thing.
The attempt to treat a novel as not exclusive property must be made by negating all other types of property.
All property is an expression of human ideas; nothing in nature is property.
All property claims are selfish and exclusive.
All property exists by a moral claim to exclude others from using it without the owner’s permission.
And the objects of all property claims exist in the real world where they can be observed outside of a human mind.
”Intellectual” property is a flawed concept. All property rights are slices and boundaries on the use of things that exist in the external worlds – an expression of intellect with respect to specific and usable things.
Once outside the mind, once perceivable as a thing by more than one person, things are real, and the person who makes a thing makes a claim to be its exclusive owner under a theory of natural law and natural rights which is itself a human fiction.
June 8, 2012 - 9:50 pm
From a Facebook discussion:
Stephan Kinsella: My theory of property rights is simple to understand and both internally consistent and consistent to reality.
1. Property is an abstract intellectual idea the referent of which are the actions one can take with respect to real things, based on the moral premise of determining the limits of individual natural human rights under an enlightenment theory of natural law.
2. Only things can be claimed for exclusive use under natural rights theory.
3. A thing does not need to be made out of molecules to be a thing; it merely needs to be objectively real, definable, and possessing a specific material identity.
4. Property rights are a statement of exclusive use by its owner and the determination of moral right to exclusive determination of use is made by the owner without permission needed from another.
5. A natural property right is a moral definition of what an owner may or may not do with a thing.
6. Exclusive right of use determines the moral statement of ownership. The referent of the property right being an exclusive use does not require the thing claimed as property to be scarce or its usage rivalrous. Non-rivalrous usage can be a violation of an exclusive property right.
Now, there are reflections of moral rights under legal systems. Some law is in contradiction to natural rights and natural law theory.
I have never made a defense of statist law except when it accurately reflects natural law. Statists do this because a total denial of natural laws causes complete chaos.
You object to copyright and patents. I don’t have a problem with that per se. But you don’t understand the moral roots of natural rights to property. You conflate natural laws with statist legislation and court rulings. You think property rights are something physical rather than being abstract concepts of morality.
That which can be owned has to be something real and objective. But “rights” will always be a subject of intellectual debate of moral concepts.
And while the underlying principles can be stated simply, the applications are not simple.
Look, all property is imaginary. That’s what you’re not getting. A thing exists or doesn’t exist — but the ownership of it is a intellectual conception the referent of which is a system of recognizing moral, ethical, and — yes — legal fictions. We human beings make up imaginary property lines because it makes it possible for us to incent production. If people can’t own the things they work to make they say “What the fuck” and slack off. That’s what happened in Jamestown when there was no private ownership of land or crops — everybody quit farming, started starving, and the Natives had to go all pro bono to save the idiot intellectuals who didn’t think private property was a good idea.
A novel exists as much as anything else. Remove the novel from the book and it’s the same as unloading a load of wheat from a container. The container isn’t the trade good people are taking delivery of and they’d be upset if the container arrived empty and they were expected to make payment. The same with a novel and a book. Deliver a book without the novel and the trade good is missing.
You’re a lawyer. You had to have taken courses on contract law. What do you think would have happened if you tried telling your professor that a novel can’t be a trade good apart from the printed book — that any book is the same good as any other book despite the presence or absence of the novel?
June 9, 2012 - 2:57 pm
An idea (a novel) can’t be experienced by other human beings except in specific physical instances.
Each physical instance of an idea (a novel) requires a physical thing.
Technology enables an idea (a novel) to reach anyone in the world instantly, at practically no cost, through physical things produced and owned by other people.
You want a monopoly over each physical instance of an idea (a novel), no matter who owns the physical thing. This is impracticable, because an idea (novel) can’t be separated from its physical instance, and physical things can not have more than one exclusive owner.
June 9, 2012 - 3:20 pm
Your fallacy is in your first four words.
An idea is something inside someone’s head.
A novel is a physical object in the real world. It’s just a crying shame you can’t read and comprehend the definitions of the words “physical” and “object” from Dictionary.com I’ve quoted for you in my prior responses to your comments.
June 10, 2012 - 9:54 pm
I accept the definition of “physical” you have provided:
“2. of or pertaining to that which is material: the physical universe; the physical sciences.
3. noting or pertaining to the properties of matter and energy other than those peculiar to living matter.
4. pertaining to the physical sciences, especially physics.”
Now your major claim: “A novel is a physical object in the real world.”
If a novel is indeed a physical thing, it can be owned. However, you need to provide at least one example of a novel that exists apart from one of its specific physical instances in order for your theory to hold water. According to the definition that you keep pointing me to, you have not done this.
June 10, 2012 - 11:27 pm
I’ve already explained this to you in prior messages; I’m just not getting through.
You exist made up of molecules, yet that which is you changes all molecules completely every seven years. You exist independent of the specific molecules that “carry” you, yet at any given moment you do not exist without being carried by some specific set of molecules.
Likewise, a novel that can be transferred from paper to computer memory exists independent of the media that carries it, but — like you and the molecules that carry you — at no time does it exist without some specific media carrying it.
June 11, 2012 - 6:52 am
This reminds me of the classic Ship of Theseus argument:
http://en.wikipedia.org/wiki/Ship_of_Theseus
Now we may be verging into talk of a Soul.
I do believe in the “soul” of a work of art or literature, just as I believe that the USS Constitution is the same ship as it was over 200 years ago, even though it has been completely rebuilt over that period of time.
June 11, 2012 - 9:39 am
Back in the days when I was more active in publishing what was not yet even called “eBooks” I thought of calling them “geistbuchen.”
Oh, and I can tell you with the certainty of experience that dealers in fine violins are definitely concerned with whether the original violin has its original parts.
June 11, 2012 - 9:49 am
So, a “novel” doesn’t “exist without some specific media carrying it,” just as I don’t exist without the specific molecules that “carry” me.
How can my “self” be owned separately from my body?
June 11, 2012 - 10:27 am
That may be either an unproved assumption or axiomatic, depending on which philosophy you subscribe to; but without that premise killing you can not be considered as a crime.
June 11, 2012 - 11:55 am
Please explain further. Killing seems to be a crime because of harm done to a physical body, not to a “self.”
June 11, 2012 - 6:21 pm
The contrast between the ship and the violin is interesting because in the case of the ship, one expects to need to make repairs and replace fairly significant parts of a ship (like a mast). In the case of the violin, one would attempt to avoid the need to make repairs of any kind, even down to the varnish. I think the difference in the two cases necessitates a different definition of identity.
However, both may be said to have been imbued with and embody some of the “soul” or “spirit” of the maker and certainly carry the particular history of the life of each and the touch of those who used or inhabited each, however long that may last and whatever contact each may have had.
June 16, 2012 - 12:40 pm
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.
Using “selfish” as any kind of slur is an attack on individuality.
I have a barely controllable urge to see such individuals repeatedly slapped, and castigated for being selfish about the use of their face as a practice target.
June 20, 2012 - 1:34 pm
What’s your definition of “scarce”?
June 20, 2012 - 1:50 pm
If I plunge you into a vat of liquid nitrogen there is no harm to your body. In fact, it’s being perfectly preserved.
Unfortunately, not so good for your “self” — whatever that is.
June 20, 2012 - 1:53 pm
You want it. You don’t have it.
June 25, 2012 - 7:17 pm
Of course there is harm done to my body if I am plunged into a vat of liquid nitrogen: my body is dead. Health is measurable, and a body that is not functioning in a healthy manner is certainly harmed. Whatever a “self” is, it has nothing to do with intellectual property.
“You want it. You don’t have it.”
I accept this definition. Property rights can only apply to scarce things.
June 26, 2012 - 10:39 am
Property rights can be applied to unscarce things.
Water might not be scarce in some places … but steal a glass of water from my table in a restaurant, and I will apply pain to you immediately.