If 'property rights' is the answer, what's the question?

Richard Goode's picture
Submitted by Richard Goode on Tue, 2012-05-29 11:56

If 'property rights' is the answer, what's the question?

The question is, how do we allocate scarce resources in a free society?

Here are two common examples of scarce resources.

(1) Tangible, "value added," goods.
(2) Land.

The answer in each case is the same: privatisation. The institution of private property—which is a societal convention—accords people property rights in tangible goods and land.

Tangible goods to which value has been added are the products of someone's effort. Other things being equal, we give ownership of the goods to the person who produced them. According to our property conventions, you get to keep the fruits of your labours.

Land is already there. It's not the fruit of anyone's labours. So, as a very general rule, we give ownership of land on a "first come, first served" basis. If you're the first to stake a claim (by planting a flag, perhaps), then it's yours. (There may be qualifications, for example, it may be deemed necessary to "improve" the land, or to "occupy" it "continuously" for a period of time.)

What about so-called "intellectual property"? Should a free society give ownership of ideas? There's no disputing the fact that good ideas are (almost) always products of someone's intellectual effort. And there's no disputing that good ideas are (almost) never thought of simultaneously. Take any good idea, and there's (almost) always someone who thought of it first. And, what's more, it's (almost) always the case that the person who thought of the good idea first is someone who put in the intellectual effort required to come up with the idea. So, other things being equal, why not give ownership of the good idea to that person, perhaps by way of copyright or patent?

Why not? Because, in the case of ideas, 'property rights' is the answer to a question we don't need to ask. In a free society, ideas are not scarce resources. Tell me what your good idea is, and I have it too. Ideas can be copied. They can be copied ad infinitum. Ideas aren't scarce.

The notion of "intellectual property" is bogus. The correct account of the nature of property is the scarcity theory of property. The production theory of property is flawed.

Here's a counter-example to the production theory of property, a third, less common, example of a scarce resource.

(3) Radio frequency transmission bands.

If you and I broadcast our radio shows on the same radio frequency band in the same geographical area, our transmissions interfere with one another. The solution to the problem is, again, privatisation. There's actually a legitimate role of government here—to endorse, and to enforce the rulings of, an independent body that grants exclusive use, in a given geographical area, of scarce radio frequency transmission bands. On the basis of ... what? Fairness? Not on the basis of first come, first served. And certainly not on the basis of the production theory of property. You can't produce a mathematical range. And you can't be first to use a set of numbers.

[Cross-posted from Eternal Vigilance.]

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No, Richard...

Ross Elliot's picture

...I consider patents as utilitarian in the same way as I see disputes between neighbors over noise and pollution. The common law decides upon the basis or relative harm or benefit. It sure ain't perfect but it allows us to co-exist and thrive, within rational limits.

Don't try to paint patent protection the same as collectivist genocide: it's not just silly, it's nasty.


Richard Goode's picture

Under the production theory of property ... is copying production?

A good question. It would seem so ... is this a reductio ad absurdum of the production theory of property?


Richard Goode's picture

Patents are utilitarian.

The catchphrase of utilitarianism—“The greatest good for the greatest number”—is one of the most vicious slogans ever foisted on humanity.

This slogan has no concrete, specific meaning. There is no way to interpret it benevolently, but a great many ways in which it can be used to justify the most vicious actions.

What is the definition of “the good” in this slogan? None, except: whatever is good for the greatest number. Who, in any particular issue, decides what is good for the greatest number? Why, the greatest number.

If you consider this moral, you would have to approve of the following examples, which are exact applications of this slogan in practice: fifty-one percent of humanity enslaving the other forty-nine; nine hungry cannibals eating the tenth one; a lynching mob murdering a man whom they consider dangerous to the community; IP laws.

There were seventy million Germans in Germany and six hundred thousand Jews. The greatest number (the Germans) supported the Nazi government which told them that their greatest good would be served by exterminating the smaller number (the Jews) and grabbing their property. This was the horror achieved in practice by a vicious slogan accepted in theory.

But, you might say, the majority in all these examples did not achieve any real good for itself either? No. It didn’t. Because “the good” is not determined by counting numbers and is not achieved by the sacrifice of anyone to anyone.

Why, oh, why

Ross Elliot's picture

Sure, there's no shortage of ideas, but there are shortages of ideas specifically defined and made real. And that is what patents protect.

Further, copyright and patent law only protect for a certain length of time. The law already recognises that these things are somewhat different than actual physical things. It recognises that the things created from ideas have a limited period of exploitation. Why? So that inventors will continue to invent. Patents are utilitarian. They recognise the role of the inventor but they *expire*.

Patents are fundamentally capitalistic. They are not anarchistic. Since capitalism and anarchism have nothing to do with each other, this shouldn't come as any surprise.

This has always been my thesis and I don't know why capitalists keep debating it with anarchists. There's no common ground. You might as well debate property rights with collectivists.

Under the production theory of property...

reed's picture

... is copying production?

IP is the solution to a non-existent problem

Richard Goode's picture

If you're part of the solution to a non-existent problem, you *are* the problem!

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