Gettin’ Intellectual About Property

Some recent posts on the always interesting IPCentral ‘blog prompt me to invite some more careful discussion about the similarities and differences between intellectual property and tangible property. I think such discussion might help illuminate the apparent disagreement among libertarians posting their comments here on TLF and on IP Central.

I’m more of a tech-head libertarian activist than a theoretician or even a constitutional scholar any more, so I’m probably going to expose myself to a lot of criticism thrashing around in philosophy and theory as I’m about to do, but who cares! If it helps get people to talk more carefully about their differences on IP, it’ll all be worth it.

I think we all ascribe to the theory of property propounded by Locke in his Second Treatise of Government. That is, that property is transformed from common ownership to private ownership by the mixing of one’s labor with it. (Assume a Garden of Eden, where people come upon things for the first time . . .) When someone picks an apple from an un-owned tree, the apple becomes that person’s property. So it is with tilling un-owned land. It becomes yours when you use the land for productive purposes. Locke focused on the idea that your bodily efforts create your private property.

This applies equally well to intellectual effort as to manual effort, I think. Why shouldn’t the mixing of your ideas, actions, and observations to make new ideas and facts result in a new item of private property? A new piece of “intellectual property.” (I use the term here without reference to federal statutory law.) It seems obvious that it does–and in calling it “obvious,” I wonder who I’ve just waved a red flag in front of.

But what happens when you stop tilling land and move over to the next valley, never to return? Let’s say you hack a trail through unowned wilderness to get there? What’s the explanation for the lands you have used but don’t use any longer? When you finish eating an apple and chuck the core into a field, what is the status of the apple core?

Likewise, what happens to an item of data that you release to the world? What is the ownership status of the fact that you wear a fedora on a given day as you walk to work? Putting the hat on your head and walking surely are the mixing of labor with your property. This makes the fact of wearing a hat your property in the first moment that it exists, but . . . .

I’ve heard argument–though I haven’t seen much written–that part of what completes the possession of private property under Locke is “fencing” of the property. Taken literally with real property, fencing makes it difficult to trespass, but the concept of fencing probably also includes giving notice to others that certain property is owned.

That makes a lot of sense. How would a society work if someone coming upon a fallow field, a trail, or an apple core had to rely on the subjective beliefs of whoever might have been there before to figure out whether it was owned. Failure to fence, and thus to own, is common with intellectual property. How would a society work if each of us had to get permission from the wearer of a hat to notice it, remember it, or comment on it?

Maybe hardcore Lockeans would ignore that problem and say, “Tough luck. The original entitlement went to the first person to use or create the item. S/he has a property right superior to yours even if you had no way of determining the property status of the item.”

This could apply equally well to intellectual property. Perhaps the first person to ever say “cool” with the meaning “acceptable” or “stylish” rather than “low-temperature” should have the property right to that invention, which has proven to be hugely beneficial. The heirs and assigns of the first person to say “cool” with that meaning deserve some payment for all the coolness that’s been done with that turn of phrase. (And just now another tiny debt accrued!)

That’s a great principle, but think of the enforcement nightmare you’ve just brought on yourself. Tracking the nascence of every idea that is ever reused would be quite a difficult task. Anyone who wanted to actually live an ethical life would have to refuse seeing and thinking–to say nothing of speaking–for fear of violating some antecedent intellectual property right.

It can’t be. There must be some better explanation for what’s going on in the world.

In the law, I think the best explanation for what goes on when property is no longer used and bears no indicia of fencing is abandonment. It reverts to un-owned until someone else comes along and does the things that are needed to own it.

According to my quick-n-dirty Web research using Wikipedia–there’s another red flag to a couple of you–where John Locke focused on effort, American individualist anarchist Benjamin Tucker focused on scarcity. The utilitarian basis for property rights in tangibles is that they solve the problem of scarcity. Two people can’t use the same thing at the same time, so someone has to get it. First-to-use is a simple rule for making people play nicely with one another when the things they want are scarce.

But intellectual property isn’t scarce. It’s plentiful. Two people can use pieces of intellectual property at the same time without degrading each other’s use. Because of the huge popularity of my thinking, for example, figuratively thousands of people are reading this same ‘blog post all at once–and no one is the worse off for the others reading it.

So, intellectual property has a lot of similarities with tangible property, but a key difference. They both arise from the mixing of labor with “common property.” They both can be abandoned and often are. Property rights in tangibles cause us to play nicely and cooperate through trade to move scarce items–land, goods, and such–to their highest and best use. But intellectual items aren’t scarce in this way because everyone can have the same thing without affecting someone else’s interest in its use. We don’t need to have property rights in them to get people to play nice or to move them to their highest and best use.

We could continue property rights in them out of a sense of justice–people are entitled to own every product of their labor; we shall do away with the requirement of fencing–but I’ve talked about the bizarre life we would live if we did so. There is some other reason why we would protect property rights in intellectual items, and then only in certain, narrowly defined items.

If exposing intellectual property to others meant that it was almost always going to be treated as abandoned–like we abandon the fact that we walk down the street wearing a hat–people who wanted to protect such property would have to take a lot of pains to do so, to properly fence it. As to ordinary facts like the appearance of our bodies, we do so regularly by clothing ourselves, for example. But what about elaborate items of intellectual property–songs, poems, designs, and inventions?

In the natural course of events, sharing them once would make it nearly impossible to protect them. You might have to bring everyone into a room and get them to promise they won’t reproduce a song you’re about to perform or an invention you’re about to demonstrate. Good luck proving who violated your contract rights if someone does. Another enforcement nightmare.

So an additional suite of property rights come forward to solve this problem. The laws of patent and copyright create rules that dispense with the need to fence certain types of intellectual property. These laws supply fencing even when an item of intellectual property might appear to be abandoned. Thus, creators can bring their works forward, to publish and trade them, while still retaining certain property rights.

To recap my stumble through property theory: Private property in real/tangible property and intellectual property both spring from Lockean mixing of labor with common property. Property rights in real/tangible property prevent constant conflict in the context of scarcity. Property rights in intangible property prevent constant conflict in the context of abundance.

They are both important, but they are very different. Rights in tangible property have deep roots in natural law, where rights in intellectual property have shallower roots there, if any at all. Property rights of both kinds are meant to solve problems, but very different problems.

This may be amateur-hour when it comes to articulating the bases of these different property rights, but I’m confident that we should treat the two property regimes as pretty much separate, something not done in recent IPCentral posts.

Update [even before posting this screed!]: I take second place to nobody in my claim to having a humor gene! It has been looking like y’all IP Centralizers think property rights in tangibles and in intellectual items are entirely the same.

Also, I think what I’ve said here is consistent with Richard Epstein’s piece for PFF, even if I’m less well-versed: There is a utilitarian justification for intellectual property law. I think his piece and this both frame the issue at the center of this debate: Is the federal statutory intellectual property regime serving those utilitarian ends or not?

(I think the debate is not whether libertarians should categorically oppose intellectual property protection. Any libertarian who believes we should, please identify yourself.)

(And BTW, apropos of the Epstein piece, I think Tim Lee’s strongest argument is that the DMCA anti-circumvention provisions actually allow the owner of Blackacre to prevent someone else from becoming the exclusive owner of Whiteacre. Right, Tim? Alas, Tim too carelessly wanders into general criticisms of DRM that are allowing good Jim DeLong to think that Tim’s objection is wholesale to DRM and IP both. I see Ed Felten’s and Tim’s point that DRM can’t stop file-sharing, but I don’t really care if people try. Free to fail, my friends.)

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