The Free Market Environmentalism Case
Against Intellectual Property.
This article started out as an argument for why private intellectual
property rights were wrong. It has evolved into a more general theory
about what government legitimately -- for those of you who believe
minarchy is justified -- should be allowed to protect and what it
shouldn't. I'll still use the example of the inappropriateness of
intellectual works deserving the designation of private property to
prove my point, and then I'll generalize.
In conversation with objectivists who support IP, Libertarians who
oppose IP have sometimes stated, "How can you defend IP with-out
government?"
To this the objectivist has stated, "I don't know. I'm not an
anarcho-capitalist." Thus dismissing the question as irrelevant because
government exists to protect our property, and thus government
protection of IP must be legitimate. She mistakenly assumes that only
anarchists are opposed to IP, and that minarchists support it.
But indeed, the question of whether a particular type of property is
defendable with-out government is very relevant. As we shall see.
To pull a page from Free
Market Environmentalism (FME), there are three characteristics that
a type of good needs in order to become deserving of the distinction
'Private.' Private Property must be definable, defendable, and
tradable.
Private
Property Rights must be definable: "The physical attributes of
the resource must be specified in a clear and concise manner; they must
be measurable." (20)
This should be obvious. Everybody has a right to defend their property
right? But, if property rights can't be defined, how do you defend it?
How do you defend something if you don't know exactly what it is you're
defending? If you don't know exactly what's yours and what isn't? How
do you trade something if you don't know exactly what it is you're
trading?
In spite of it's obviousness, I think many libertarians don't think
much about it. They just assume that because government is instituted
to protect our right to own private property (in the classical liberal
tradition), that government should protect anything baring the name
property. We all know however, that government loves to engage in
NEWSPEAK. In other words, just because government calls something
private property, doesn't mean it is. Why would government do this? To
expand its power and legitimacy. If it can hoodwink you into believing
that many things are property which really aren't, it can make you
think expanding its police powers and other defense agencies are
completely appropriate.
Private
Property Rights must be defendable:
A rectangular survey may define surface
rights to land, but conflicts are inevitable if there is no way to
defend the boundaries and prevent other incompatible uses. Barbed wire
provided an inexpensive way to defend property rights on the western
frontier; locks and chains do the same for parked bicycles. But
enforcing one's rights to peace and quiet by "fencing out" sound waves
may be much more difficult, as will keeping other people's waists out
of the groundwater supply. Whenever the use of property cannot be
monitored or enforced, conflicts are inevitable and trades are
impossible." (20) i
This is not to say that you only have those rights you're personally
able to defend. It just means it needs to be possible to defend it. You
need to be able to monitor the boundaries so its possible for you to
know whether or not transgression has occurred. If it's not possible
for you to know whether or not transgression's occurred, it's not
possible to even try an figure out when, where, and who is doing the
transgressing. You can't even investigate, simply because, in your
mind, you'd have no reason to. This isn't to say that stealing is OK if
the person you're stealing from can't know they've been stolen from.
It's to say; if it's impossible
to know, it's not private property to begin with. It's also not very
tradable. If it's not possible to know from one day to the next if a
certain type of property has diminished or not (Not necessarily do to
theft, but maybe to bugs, or some natural phenomena), you can't know
how much you have to trade. Thus, if you can't monitor a certain type
of property, you can't trade it. Monitoring doesn't need to be
extensive. You just need to be able to know, from one time to the next
if you have the same amount of something as you did previously. Perhaps
another way to put is, is that it needs to be "countable."
This is basically a more refined way of stating the classical liberal
ideal of homesteading, in the tradition of Hume. For our purposes
homesteading is simply, "Marking the property as yours." (See, Against
Intellectual Property, for a more expansive discussion of
homesteading..)
Private
Property Rights must be tradable.
In contrasts to the costs of measuring
and monitoring resource uses, which are mainly determined by the
physical nature of the property and technology, the ability to exchange
is determined largely by the legal environment. Although well-defined
and enforced rights allow the owner to enjoy the benefits of using his
property, legal restrictions on the sale of that property preclude the
potential for gains from trade. Suppose that a group of fishermen
values water for fish habitat more highly than farmers value the same
water for irrigation. If the fishermen are prohibited from renting or
purchasing the water from the farmers, then gains from trade will not
be realized and potential wealth will not be created. Moreover, the
farmer will have less incentive to leave the water in the stream."
(20-21) ii
Another thing that libertarians sometimes don't understand is that
property rights are dynamic. They evolve as needs, wants, and new
technologies evolve. "It is useful to reiterate the importance of the
evolution of property rights and the common law. As clean water and air
become more valuable, entrepreneurs have a greater incentive to define
and enforce rights to the resources." (150)
Thus it is individuals in the market that decide whether a specific
type of property is worth defining. It is the market that figures out
the definitions of rights. Property rights may be defined differently
in different geographies simply because the geography is different. To
quote Walter Prescott Webb, author of The Great Plains,
The Easterner, with his background of
forest and farm, could not always understand the man of the cattle
kingdom. One went on foot, the other went on horseback one carried his
law in books, the other carried it strapped round his waist. One
represented tradition, the other represented innovation; one responded
to convention, the other responded to necessity and evolved his own
conventions. Yet the man of the timber and the town made the law for
the man of the plain; the plainsman. finding this law unsuited to his
needs, broke it and was called lawless. [206, quoted from FME (27)]
This is not to say that life was violent in the West, it's just to say
that property rights were defined differently. Specifically the way
water rights were defined in the east didn't make sense in the west.
Waterfall was less; streams and rivers were fewer. Water was scarcer,
therefore, definitions of what constitutes water property rights needed
to be more precise. iii
In conversation with libertarians and objectivists in particular who
believe in intellectual property, I've often taken a page from Steven
Kinsella's Against
Intellectual Property. Mainly, we should reject utilitarian
arguments as they have no basis in morality. I've used his argument
that Private Property rights are for allocating scarcity, and that
since ideas aren't scarce they aren't deserving of the designation of
private property.
I'm countered with. "So, I'm not allowed to use utilitarian arguments
even though the basis of private property rights are utilitarian?" Of
course, it's quite debatable from a utilitarian
standpoint whether or not IP does benefit society, iv
but that misses the point. This individual was saying that appealing to
scarcity was utilitarian in and of itself. It took me awhile to know
out how to respond to this.
Now I know.
1) The only legitimate function of government is the collective
(socialized) manifestation of self defense. Libertarians, minarchists
and anarchists alike understand this. It was the theory Thomas
Jefferson used to write the Declaration of Independents.
. . .We hold these truths to be
self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that
among these are Life, Liberty and the pursuit of Happiness.
--That to secure these rights, Governnments are instituted
among Men, deriving their just powers from the consent of
the governed. . .
Each individual has the right to life, liberty, property, and the
pursuit of happiness. Government was instituted to defend these rights. Remember that.
Defend is key.
2) It's the entrepreneurs, investors, and other individuals in the free
market who figure out how to define property rights. When a certain
type of property starts becoming scarce, it gives individuals
incentives to figure out more precise definitions of ownership. The
scarcer the type of property, the more refined the definition becomes.
Thus it is scarcity that gives people incentive to figure out property
right definitions. With-out scarcity private entrepreneurs would not go
through the expense of figuring out how to define property rights to
something. Thus, scarcity is important, but only because with-out it
people wouldn't figure out definitions. And if you can't define a
certain type of property, how can you know what you have? It's a
logical absurdity. "I own something, but It's impossible for me to know
what exactly this 'something' is, and even if it weren't, its
impossible for me to know exactly you how much I own."
Since the only legitimate function of government is to defend our
rights, It doesn't have a legitimate right to defend them until after
the market has (at the very least) figured out methods to define and
monitor them. Free people in the market can't ask government to defend
our property rights if we don't even know what those property rights
are. To think otherwise would be absurd.
See, government is our servant, and we (individuals) are its master.
Government morally isn't allowed to do anything that individuals can't
do. It's not morally justified to defend a property right that its
masters can't define. Can the master command his servant to defend that
which the master knows not what?
Only AFTER the market has
figured out definitions for a certain type of private property right
does government have justification to defend it. (The anarchist would
say collective defense isn't justified either. But we're assuming the
minarchist stance for the sake of argument.)
Thus government is illegitimate in many of the types of "property"
rights it defends. The reason is these private property right
definitions didn't evolve in the market, but were imposed by government
legislative fiat. This is inherently immoral. The only legitimate
purpose of government is to defend private property. It's not allowed
to define it. Imagine would kind of totalitarian world we'd live in if
government were allowed to define our property rights. In fact this is
the basic misunderstanding that most people have. They think that it's
government that grants us our rights. This is false. We already have
rights prior to the existence of government. The classical liberal
theory of Lock, and others was that we already have pre-existing rights
and that government is instituted to defend those rights. By that
theory, if we don't have rights in the first place, what's the point of
government? I fail to see the distinction between government granting
rights and government defining them. If government could define our
rights. It could (and would) define them away into oblivion.
That means that not only is government protection of intellectual
property immoral, but also government protection of spectrum space,
wild-life (hunting and fishing licenses which basically imply that
government owns it), air (pollution regulations), noise regulations,
etc.
Think about how much freer we would be be if government didn't invent
property right definitions through legislative fiat to expand its
'legitimacy' by protecting them. Defining such things through fiat,
disincentivizes the market from evolving and figuring out definitions
that make sense. In fact many times by fiatly defining rights,
government redistributes wealth ('give' to one at the plunder of
someone else) if local customs are leaning to different definitions of
private property then the government imposes.
Thus the question of how a certain type of property can be defined and
defended, or could have evolved, with-out government is just as
relevant to the minarchist as it is to the anarchist about what types
of entities are deserving of the designation private property. If it
couldn't have evolved with-out government, it shouldn't be allowed with
government. Simply because government shouldn't be allowed to do
anything that free people can't do.
Tracy Saboe
i As an aside the free market HAS figured out how to
define and monitor
ground water and aquifer rights in places where such rights have been
allowed to develop. Not in the US where most state and local
governments claims ownership of the water, but in places where
government has stayed out of the way on this particular issue, the
market has worked it out. Scotland is probably the best example of how
private markets for various types of private water property rights have
evolved..
ii This is also potentially an argument for market anarchism
because
political law intrinsically, by its bureaucratic nature, cannot evolve
to account for the dynamic changes in new technologies, and peoples
needs and wants
like the market does. But that's a different argument.
iii This is also why, if government is to exist, it needs
to exist as locally as possible. It is for this reason, I believe the
existence of Federal, and State governments are completely
illegitimate. They are so far removed from the customs of the locals
that they're intrinsically incapable of codifying law that makes sense
to every locality in the state, much less the country.
iv See also, "Patents Are An
Economic Absurdity" and "The Libertarian case
against Intellectual Property Rights." Also Steven Kinesella's IP page.