The following is Bob Schaefer’s critique of the objective conception of scarcity which appeared in his paper “Response to Kinsella: A Praxeological Look at Intellectual Property Rights.”
Introduction
A common, ordinary apple becomes N. Stephan Kinsella’s property by his simple act of plucking it from a tree.1 Yet, a novel authored by John Doe – a novel that originated in Doe’s head and materialized in Doe’s computer – is not owned by John Doe. What kind of reasoning leads one to such a counter-intuitive opinion?
Kinsella writes:
“[B]ecause, ideas are not scarce resources in the sense that physical conflict over their use is possible, they are not the proper subject of property rights designed to avoid such conflicts.”2
When confronted with an argument like Kinsella’s Against Intellectual Property, we are tempted to criticize every word. However, in this case it is necessary to focus on one word in particular because the crux of Kinsella’s argument is his peculiar concept of “scarcity.”
In the first part of this paper we will demolish Kinsella’s concept of scarcity, which underpins his argument against IP rights. We will argue that the wellspring of property rights – all property rights – is not scarcity but human action, more specifically, cooperative human action. In the second part of this paper we will ascertain exactly how human cooperative action implies the concept of property rights. We will present a more practical and sensible understanding of intellectual property and explain why it would properly fit into a libertarian society.
Lastly, our purpose here is specific and narrow. Our primary interest is in copyright. We are not a patent attorney nor a philosopher. Consequently, we will not examine IP law, IP as contract, specific forms of IP (other than copyright) or various libertarian philosophical defenses of IP in general. Our purpose is to demonstrate that Kinsella’s objective justification of property is in error and that copyright as it exists today in our society is wholly legitimate and proper when considered from the point of view of cooperative human action. Ours is primarily a praxeological viewpoint.
Part I
Scarcity is the keystone of Kinsella’s argument for property rights and against IP rights. He writes:
“Thus, scarcity is not the ‘basis’ for property rights, but a necessary background condition that must obtain before property rights can arise or make sense…”3
“Moreover,” he continues, “property rights can apply only to scarce resources. The problem with IP rights is that the ideal objects protected by IP rights are not scarce…”4
Without Kinsella’s omnipotent concept of scarcity his argument has no legs, i.e., property rights of any kind could not, in his own words, either “arise or make sense.” His argument for property rights in general and against IP rights in particular would, consequently, disintegrate. So we must untangle Kinsella’s concept of scarcity with a fine-tooth comb.
In his short tract the word “scarce” appears 59 times and the word “scarcity” 43 times. But just what does Kinsella mean by “scarcity,” this almighty “background condition” that determines whether or not property rights can exist? He never specifically defines the concept. We are forced to impute meaning to the word based on vague phrases and parenthetical remarks.
For instance, Kinsella writes: “A little reflection will show that it is these goods’ scarcity – the fact that there can be conflict over these goods by multiple human actors. The very possibility of conflict over a resource renders it scarce, giving rise to the need for ethical rules to govern its use.”5
But what does Kinsella mean by “conflict,” (“physical conflict”6 or “interpersonal conflict”7)? Based on its grammatical context (“conflict over these goods by multiple human actors” [emphasis added] and “conflicts are avoided and peace and cooperation are achieved”8 [emphasis added]), we might conclude Kinsella intends conflict to mean human strife, i.e., “the very possibility of…[human strife]…over a resource renders it scarce…” However, Kinsella throws this sense of scarcity an immediate curve ball:
“Nature, then,” he writes, “contains things that are economically scarce.”9
Are we now to understand Kinsella to mean that there are things in nature that cause human strife? Or maybe he means there are things in nature that occasion human strife?
We may dismiss the former interpretation as deterministic and behavioristic nonsense. But we must also dismiss the latter interpretation as meaningless and insignificant because it is so broadly true. The latter interpretation is more a comment on human nature than on the scarcity of tangible objects.
Kinsella continues:
“My use of such a thing conflicts with (excludes) your use of it, and vice versa. The function of property rights is to prevent interpersonal conflict over scarce resources, by allocating exclusive ownership of resources to specified individuals (owners).”10
Here Kinsella obviously intends “conflict” to mean something other than human strife. Clearly, he has in mind mutually exclusive utility. True, it is fairly common in nature that Person A’s use of a particular thing “excludes” Person B’s use of that same thing. For example, A’s consuming a bite of apple excludes B’s consumption of that same bite. Does Kinsella believe that property rights can “function” to “prevent” this physical fact of nature, i.e., can enable two human beings to consume the same bite of apple? Such a feat is impossible and tantamount to having your cake and eating it too.
Or does Kinsella want us to understand that the function of property rights is to prevent human strife associated with particular cases of mutually exclusive utility? We think so.
Logicians recognize Kinsella’s argumentative technique as the fallacy of equivocation.11 Kinsella’s argument goes something like this:
Major premise: Scarcity entails possible conflict.
Minor premise: When scarce things are used, conflict is certain and unavoidable.
Conclusion: Therefore, ethical rules of property are needed to prevent conflict over the use of scarce things.
If “conflict” is consistently defined as “human strife” in this syllogism, the major premise is true, but the minor premise is obviously false. Thus, the conclusion does not follow.
On the other hand, if “conflict” is consistently defined as “mutually exclusive utility,” the major and minor premises are contradictory. Thus, the conclusion cannot possibly follow.
Only by equivocating, i.e., by using two distinct and different definitions of the word “conflict,” does the argument’s conclusion seem to follow:12
- Scarcity entails possible conflict [human strife].
- When scarce things are used, conflict [mutually exclusive utility] is certain and unavoidable.
- Therefore, ethical rules of property are needed to prevent conflict [human strife] over the use of scarce things.
Logic does not allow equivocation. So Kinsella’s argument for property and against IP (only “tangible, scarce resources are the possible object [sic] of interpersonal conflict, so it is only for them that property rules are applicable”) is illogical and nonsensical. Kinsella has not only failed to justify property rights, but has also failed to prove that IP rights are unjust.
However, before resting our case against Kinsella’s argument, we must comment further on his peculiar concept of scarcity. It is safe to assume that most economists do not share Kinsella’s concept of scarcity.13
George Reisman writes:
“Economists almost universally describe the condition in which the desire for wealth exceeds the amount of wealth available as one of ‘scarcity.’ Scarcity, they hold, means any limitation of wealth relative to the need or desire for wealth, irrespective of whether the limitation proceeds from the lack of wealth or the abundance of desires.”14
Murray N. Rothbard writes:
“In the first place, all means are scarce, i.e., limited with respect to the ends that they could possibly serve.”15
Ludwig von Mises writes:
“Means are necessarily always limited, i.e., scarce with regard to the services for which man wants to use them.”16
To our knowledge, not one of these economists links the concept of “scarcity” to the concept of “interpersonal conflict,” whether understood as human strife or mutually exclusive utility. Each views scarcity not in terms of some objective, nature-given condition, but in terms of subjective human action.
Kinsella, on the other hand, is intent on objectifying scarcity, i.e., linking the concept (and its supposed omnipotent qualities) to the objective and given qualities of nature. He writes:
“Nature, then, contains things that are economically scarce.”17 He adds: “Ideas are not naturally scarce.”18
He references Boudewijn Bouckaert as an authority on the notion of “natural scarcity”:
“Bouckaert also argues that natural scarcity is what gives rise to the need for property rules, and that IP laws create an artificial, unjustifiable scarcity.”19
And to reinforce this concept of “natural scarcity,” Kinsella introduces Hans-Hermann Hoppe’s notion of superabundance: “Were we in a Garden of Eden,” Kinsella writes, “where land and other goods were infinitely abundant, there would be no scarcity and, therefore, no need for property rules; property concepts would be meaningless. The idea of conflict, and the idea of rights, would not even arise. For example, your taking my lawnmower would not really deprive me of it if I could conjure up another in the blink of an eye.”20
From all of this we cannot but conclude that Kinsella believes that conflict, property rules and the very concept of property are functions of this concept of natural scarcity, i.e., the available but finite quantities of inanimate objects found in nature. Yet, the science of praxeology proves that nothing could be further from the truth. As the Austrian economists quoted above reveal, the concept of scarcity must always be considered within the context of human action. As Mises writes above, means in nature are “scarce with regard to the services for which man wants to use them.” [Emphasis added]
Let’s be honest. We all know that man does not assess the conditions he imagines to exist in the Garden of Eden before he acts in the real world. Man acts based on his imperfect knowledge of the real world. To the best of our knowledge, we know the following to be true:
- That the earthly supply of resources man is able to employ as means to a given end exist in limited and finite quantities; and
- That one man’s consumption of one unit of this supply of resources necessarily prevents another man’s consumption of that self-same unit.
However, it is clear that the above objective conditions imposed by nature, whether considered individually or together, do not imply human strife, economic scarcity (natural or artificial) or property (tangible or intellectual). These particular concepts only become imaginable when a third condition imposed by nature is considered: acting man.
Kinsella’s scarcity argument attempts to draw a direct, logical line from the objective and given conditions of nature to the subjective, human notion of property. Such a line cannot be drawn any more than it can be drawn from the natural means available on earth to the particular ends sought by an individual human actor. This understanding is fundamental to Austrian economics.
Interpersonal conflict – human strife – is not determined by the absolute quantity of goods or resources in existence. It should be obvious that conflict is absent in the Garden of Eden not because there is an infinite quantity (no scarcity) of goods and resources in the Garden, but because, so long as all human wants and desires for goods are satisfied, there can be no human action with regard to goods. Moreover, if conditions change and action is required to achieve satisfaction (e.g., conjuring up another lawnmower), individual action will suffice (e.g., the blinking of an eye). At least with respect to obtaining goods and resources, cooperative action offers no advantage over individual action in Kinsella’s Garden of Eden.
However, in the real world, where goods and resources are limited in quantity, individual action will not suffice. In the real world it is individual human action that determines whether human strife will exist over scarce resources, and it is cooperative human action that eliminates this human strife.
Or is Kinsella telling us that in the real world interpersonal conflict is determined not by human actors but by the autonomic response of the human central nervous system to non-abundant stimuli? Or perhaps he means to imply that nature has hard-wired humans in such a fashion that when faced with a case of mutually exclusive utility we humans naturally engage in interpersonal human strife rather than choose interpersonal cooperation?
Kinsella writes:
“The very possibility of conflict over a resource renders it scarce, giving rise to the need for ethical rules to govern its use.”
He has it exactly backwards. The ethical rules of private property do not mysteriously “rise” out of natural scarcity to prevent human strife. Seeking to eliminate conflict over scarce resources, human actors cooperate. They conceive and implement ethical rules of behavior, rules that make cooperative action possible. The concept of private property is implied by these ethical rules. Thus, as we shall prove in Part II of this paper, property rights – tangible and intangible – are the consequence of human cooperative action, not the consequence of some vague concept of inevitable conflict embedded in naturally scarce, inanimate objects.
As usual, Ludwig von Mises sums it up best. He demolishes Kinsella’s concept of scarcity in a single paragraph:
“The natural scarcity of the means of sustenance forces every living being to look upon all other living beings as deadly foes in the struggle for survival, and generates pitiless biological competition. But with man these irreconcilable conflicts of interests disappear… Within the system of society there is no conflict of interests … … harmony of interests is substituted for conflict. People are no longer rivals in the struggle for the allocation of portions out of a strictly limited supply. They become cooperators in striving after ends common to all of them.”21