Ben Klemens, whose work I’ve praised in this space in the past, has a new essay up that I found a little bit aggravating. It’s on the perennial question of whether it makes sense to describe patents and copyrights as property. I’ve been a critic of the term “intellectual property” for a few years. Ben’s on the other side.
What I disliked most about Ben’s piece was the condescending tone he takes toward property rights activists (like me). Klemens has little patience for property rights activists whose websites have “lots of clip art of flags and eagles,” and who are under the delusion that the holders of property rights have some kind of moral claim against government interference with those rights. Klemens also critiques neoclassical scholars who “will try to trip you up into thinking that society is built around natural, objective property rights rather than social construction.” Klemens concludes by arguing that “Sure, IP law is artificial, but physical property law is equally artificial; we’re just so used to it that we’ve forgotten.”
Now look, on some level this is indisputably correct. God doesn’t strike trespassers down with lightning; property rights are defined and enforced by fallible human beings. The problem is that Klemens argument proves too much. The same reasoning can undermine any moral or legal rights. On some level a woman’s right not to be raped is a “social construction,” but I don’t think that in any way diminishes the strong moral claim that each and every woman has not to be raped, regardless of what the rest of us regard as “socially optimal.”
The crack about the eagles and American flags seems to imply that only ignorant rubes believe that property rights could have a moral dimension. Sophisticated thinkers know that property rights exist by the grace of the legislature, and so if the government decides that the “socially optimal allocation of rights” involves taking your house and giving it to a wealthy developer so he can build a shopping mall, that’s too bad for you but it doesn’t raise any more profound moral issues.
The problem with this is that it completely ignores how our actual system of property rights came into being. Ben’s right that most people have forgotten how we got our modern system of property rights, but the things we’ve forgotten are almost precisely the opposite of what he imagines them to be. Traditional property rights are not and never have been the creation of governments. Indeed, government efforts to create new property systems from whole cloth tend to be abject failures. People ignore them, and the government lacks the resources to impose them on an unwilling population. This is the situation you saw on the American frontier during the 19th century, and it’s the situation you see today in many third-world countries with dysfunctional property systems. The formal property rules were and are radically out of step with the informal property rules that actually govern the day-to-day lives of ordinary people.
In contrast, successful systems of property rights tend to emerge spontaneously from the bottom up, and are simply recognized and reinforced by the government. Over time, consensus emerges among neighbors about who owns what and what people may do with their properties. The job of the courts and the legislature isn’t so much to decide who owns what (ordinary people already know that) but simply to record and ratify the already-existing social consensus and handle disputes at the margin.
To bring things back to the patent and copyright debates, I think the right lesson from the analogy to physical property rights is exactly the opposite of the legal positivism Ben seems to be defending. In reality, legislatures have very limited powers to impose property-like systems on an unwilling populace. When a property-like legal regime is widely ignored or evaded (think software patents or peer-to-peer file sharing) that’s a strong signal that the legislature needs to re-write the law to make it work “with the grain” of peoples’ existing attitudes and expectations.
In contrast, when the formal law is well-aligned with peoples’ expectations, it tends to attract the passionate support of ordinary citizens—the kind of people who like to adorn their websites with clip art of eagles and American flags. It’s not a coincidence that there are thousands of passionate property rights activists who are mobilizing against eminent domain and asset forfeiture, but surpassingly few pro-copyright or pro-patent activists who are mobilizing against fair use and the Bilski decision. (Patrick Ross doesn’t count.) Traditional property rights are an organic legal institution that emerge spontaneously from peoples’ day-to-day interactions. Software patents are an invention of the patent bar that has been vigorously rejected by rank and file software developers. I think it’s both philosophically misguided and rhetorically counterproductive to equate the two.