There’s a question that’s been bugging me about libertarian property rights theory for some time now, and I couldn’t quite figure out how to formulate it until yesterday when I was reading Kinsella’s “Against Intellectual Property.”
Kinsella says,
[W]hat is the harm in. . .recognizing [intellectual] property? The problem is that if property rights are recognized in non-scarce resources, this necessarily means that property rights in tangible resources are correspondingly diminished . . . For me to have an effective patent right–a right in an idea or pattern, not in a scarce resource—-means that I have some control over everyone else’s scarce resources . . .To wit, the IP advocate must propose some homesteading rule along the following lines: “A person who comes up with some useful or creative idea which can guide or direct an actor in the use of his own tangible property thereby instantly gains a right to control all other tangible property in the world, with respect to that property’s similar use.” This new-fangled homesteading technique is so powerful that it gives the creator rights in third parties’ already owned tangible property.
My problem is, doesn’t this argument apply to tangible property as well? When I homestead, say, a plot of land, am I not in essence also claiming control over “third parties’ already owned tangible property”? When I forbid you to trespass with your body on my land, am I not claiming a right of partial control over your body? So it seems to me there is a sort of truth in the slogan “Property is theft!”, though not in the way in which Proudhon meant it, rather, that every claim to property detracts from everybody else’s liberty to use their existing property. Kinsella seems to think that this concept is an argument against intellectual property, I’m afraid it may be an objection to the libertarian theory of property rights in general.
I’m sure that this concept has been written about and addressed somewhere, do any of you fellows have links to readings that might help me understand the counterarguments to this or why this objection is not an objection?
Also, a question I have that might be related. Let’s say that you have a plot of land, and I have my body. I walk onto your plot of land without your permission. How do we know that it is I who am trespassing on your land and it is not your land which is trespassing on my body?
You will find differences in opinion here. I tend to subscribe to the belief that property rights are absolute and derive from the only a priori claim to property, the untransferable mental will. Your body is naturally yours because your will homesteaded it first. Therefore, either the body or a piece of land is simply a tool of the will and neither has more superiority over the other.
In regards to your questions, your rights to property end where mine begin. Your problem might lie in that of continuity, a where does one border end and another begin question
To your last question, my land can certainly trespass on your body. For example one of my rocks may hit you, but I believe you are speaking to how we differentiate between them.
Property problems are division problems. You have a hole of material-matter that you keep dividing by ownership.
“When I homestead, say, a plot of land, am I not in essence also claiming control over “third parties’ already owned tangible property”? When I forbid you to trespass with your body on my land, am I not claiming a right of partial control over your body? So it seems to me there is a sort of truth in the slogan “Property is theft!”, though not in the way in which Proudhon meant it, rather, that every claim to property detracts from everybody else’s liberty to use their existing property. Kinsella seems to think that this concept is an argument against intellectual property, I’m afraid it may be an objection to the libertarian theory of property rights in general.”
Why stop there? Even control over your own body (not even getting into self-ownership) and being in a particular point in space does the exact same thing. New slogan “Existence is theft!”
Because for libertarians, liberty is defined as acting within the limits of non-aggression. You mean liberty in the absolute sense of being able to do anything at any time for any reason. This is not what Kinsella means.
Not really. By merely existing I place no restriction on what you may do with, say, your baseball bat. Only if I claim a right to exist and forbid you from extinguishing my existence by using your baseball bat to transform me into a bloody pulp.
But I don’t think Kinsella can mean that by liberty and still remain logically consistent.
Intellectual property in no way limits “liberty within the realms of non-aggression” because to use the existing tangible property in a way that violates intellectual property rights would be considered aggression.
"Not really. By merely existing I place no restriction on what you may do with, say, your baseball bat. Only if I claim a right to exist and forbid you from extinguishing my existence by using your baseball bat to transform me into a bloody "
Of course you do, by you being somewhere, anywhere, logically means I, or any other, cannot be there as well and even after I’ve beaten you, your corpse still lies there, taking up space. Obviously a restriction of freedom. Your exclamation rights only makes matters more difficult, not inherently different.
It’s still not the same type of restriction. Property rights create moral restrictions; that is to say, they don’t physically prevent anybody from doing anything in the material world. They simply declare certain actions to be immoral. Existence, on the other hand, is a physical phenomenon. It might physically prohibit you from acting in a certain way, but declares nothing about the moral nature of any action.
So perhaps it is a restriction of your physical freedom, but not of your moral freedom or your property rights.
"Not really. By merely existing I place no restriction on what you may do with, say, your baseball bat. Only if I claim a right to exist and forbid you from extinguishing my existence by using your baseball bat to transform me into a bloody "
Of course you do, by you being somewhere, anywhere, logically means I, or any other, cannot be there as well and even after I’ve beaten you, your corpse still lies there, taking up space. Obviously a restriction of freedom. Your exclamation rights only makes matters more difficult, not inherently different.
You are not being careful with the words you use. You are trying to define freedom to include metaphysical freedom, ie you want freedom from reality.
Property rights create moral restrictions; that is to say, they don’t physically prevent anybody from doing anything in the material world.
Got an example of libertarian property rights creating a “moral” (legal?) restriction which has no bearing at all with an individual interfering with the physical integrity of another person or their property?
The idea is that property rights derive from homesteading or first use, and no one can homestead an idea. Even if they could be homesteaded, my use of an idea does not limit another’s use of it. So, everyone is acting peacefully. If you enforce intellectual property rights, you give the proprieter the right to attack non-aggressive non-intrusive agents.
Got an example of libertarian property rights creating a “moral” (legal?) restriction which has no bearing at all with an individual interfering with the physical integrity of another person or their property?
It doesn’t matter that all libertarian property rights all “have bearing” with individuals interfering the physical integrity of another person or their property. The point is that moral restrictions are different from and cannot be compared to physical restrictions. Property rights are moral restrictions; the law of nature which states that multiple objects cannot be in the same place at the same time is a physical restriction.
So, claiming ownership of an object diminishes what a person is morally entitled to do with their property (property is theft), but the mere phenomenon of existence has no bearing on what a person is or is not morally entitled to do, so it cannot be considered “theft” in the same sense.
I suppose “property is theft” was a poor choice of phrase to accurately reflect the concept I am trying to get across, because theft is a physical action with a moral definition. But hey, it’s catchy!
"Even if they could be homesteaded, my use of an idea does not limit another’s use of it. So, everyone is acting peacefully. If you enforce intellectual property rights, you give the proprieter the right to attack non-aggressive non-intrusive agents.
That’s true. I agree with the argument that it makes no sense to make non-scarce entities artificially scarce–an argument Kinsella makes very well elsewhere. But here, at least it seems to me, he is making a separate, independent argument against IP. Basically, that IP enslaves other people, because as it accumulates it puts an increasing amount of restrictions on other people’s existing property.
My point is that this objection can be applied to tangible property as well.
It depends how you concieve “enslavement”. If enslavement is where I go out and attack you for doing only peaceful things, then no, property rights are not enslavement. If you think that a slave is someone who can do whatever they want as long as they don’t hurt other people, then you’re right. Property rights are slavery.. Pick your definition. For ease in speaking to others, I try to choose mine putatively.
This is basically what I thought when I read this book. Is not being able to use property to harm others control of that property by non-owners? I don’t see it that way, but I never liked it as an argument against IP, either. Why is the control of others’ property due to IP in the way Kinsella is talking wrong? It is clear that IF IP is wrong then that control is wrong, but that is what is trying to be proven. I agree with you that the rest of the argument is strong, but essentially I ignore this point.
“It’s still not the same type of restriction. Property rights create moral restrictions; that is to say, they don’t physically prevent anybody from doing anything in the material world. They simply declare certain actions to be immoral. Existence, on the other hand, is a physical phenomenon. It might physically prohibit you from acting in a certain way, but declares nothing about the moral nature of any action.”
Property creates legal restrictions, not moral ones. You retain all the moral freedom regardless of any legal environment. Going further and substituting legal for moral doesn’t really change the point I was trying to make: Why stop at property lines and not the logical conclusion of the individual himself? Your claims not to be violated, murdered, beaten with a bat, etc… are all of the same kind as that with property, objections to physical trespass of some sort. Even your breathing is taking air away from me. So yes existence is theft, or at least a restriction on another.
"You are not being careful with the words you use. You are trying to define freedom to include metaphysical freedom, ie you want freedom from reality. "
No not metaphysical freedom, just [absolute] physical freedom.
It doesn’t matter that all libertarian property rights all “have bearing” with individuals interfering the physical integrity of another person or their property.
Uh, homesteading principle anyone? We’re talking about ownership distinguished from control by the resource in question being previously unowned.
So, claiming ownership of an object diminishes what a person is morally entitled to do with their property (property is theft)
The basic idea is that it’s impossible to legitimately lose control of your property due to a change in external circumstances – once it’s yours, it’s yours until you give it up. While I find this principle elegant and intuitively plausible, I’ve yet to see a knock-down argument for it.
You and
raise a good point. The non-libertarian does not argue that theft is right; from their perspective, they are restoring property to its rightful owners, and the libertarians who resist are the thieves. So simply saying “stealing is wrong” (a tautology, mind you) doesn’t help distinguish between the two.
I want to know whether IP proponents believe that any ideas or products of a persons intellect are ‘ownable’ or whether there is something distinguishing ownable ideas from non-ownable ideas.