This is the curse of IP – excessive restrictions upheld by laws used to protect the “economic rights” of authors. Instead of promoting scientific progress we are instead beholden to copyright. Instead of allowing human innovation to flourish, we are told ideas should be owned. IP reserves itself the monopoly of coercion. It does not exist to ease, facilitate and grant social innovation – it prevents such progress. IP is a hurdle to self-direction and thus the inclined labor of human beings. The solution is to question and dismantle this authority, furthering our progress towards a free society.

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This is the very basis of the scientific method. We are encouraged to doubt and question the existing order, to follow self-direction and formulate our own hypotheses to work toward possible conclusions. In fact, an old academic motto notes that learners are not empty vessels waiting to be filled, but instead respond in different ways to the stream of knowledge and its current.

Under self-direction, peer-to-peer learning is incredibly important. Focusing specifically on Higher Education, particularly graduate academics, there is a need and reliance on empirical data. The goal of graduate research is to add to a body of knowledge that seeks understanding of a system or concept. In order to conduct such research, one must not only understand the relevant field, but also be granted access to data, information and the methods used to obtain such data. In today’s academic institutions this is championed, but there do exist barriers to achieving this goal — one of the greatest is perhaps Intellectual Property (IP).

Take the case of Diego Gomez, a 26-year-old Colombian student whose research interest is biodiversity conservation. Throughout his academic career, access to peer reviewed journals on global research databases was extremely limited due to lack of institutional resources. Because of this, Gomez became dependent on the Internet. The web allowed him to research, share documents and talk with colleagues. To further collaboration, when he and others came across relevant papers they shared them together over the net.

One such paper landed him in legal trouble when the author filed a lawsuit over the “violation of [his] economic and related rights.” Under the allegations of this lawsuit, reports EFF, Gomez could be sent to prison for up to eight years and face crippling monetary fines. His crime is violation of “intellectual property” law — patents, copyright and trademarks that restrict human labor and innovation.

This is the curse of IP — excessive restrictions upheld by laws used to protect the “economic rights” of authors. Instead of promoting scientific progress we are instead beholden to copyright. Instead of allowing human innovation to flourish, we are told ideas should be owned. IP reserves itself the monopoly of coercion. It does not exist to ease, facilitate and grant social innovation — it prevents such progress. IP is a hurdle to self-direction and thus the inclined labor of human beings. The solution is to question and dismantle this authority, furthering our progress towards a free society.

Luckily, we are well on our way in the age of network mutualism. Falling communication costs are allowing us to build anew within the shell of the old. The open access movement occurring on the Internet is creating global markets for free association among social networks that educate and inspire — totally void of traditional power structures. The creative, innovative potential for human labor in the Internet age is astounding.

In a free society ideas will not be owned. Ideas are powerful and fundamental to human flourishing — they should not be caged by legal activism. Instead, imagine a different order – one crafted by creative expression, innate interests and the ingenuity of a free society. To achieve greatness we must continue to advance today’s emerging, beautiful anarchic order. Open source content is fundamental to our success.

It’s vital not to forget Joseph’s wonderfully put and absolutely correct argument that private property is the only method by which people can peacefully interact and allocate scarce resources. It would be odd indeed if we ignored the volumes of work, such as Human Action or Man, Economy, and State, showing how and why property rights are important, indeed necessary, for a functioning and prosperous society. Still, it would be similarly odd if we ignored the volumes of work explaining why people have an inherent moral right to private property, such as The Ethics of Liberty or Two Treatises of Government.

Before answering if there is good reason to respect private property beyond just consequential considerations, we have to ask, is there good reason to respect individual sovereignty beyond just consequential considerations? It seems evident that there is. Arguably the entire libertarian and anarchist project is predicated on the idea of a certain moral worth that each individual is entitled to, by their very nature, which makes states and oppressive hierarchies unjust.

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We would be much better off if we weren’t tormented by scarcity. There would be no conflict or potential for conflict over physical goods. This hypothetical world — one of superabundance or post-scarcity or infinite supply or infinite reproducibility or whatever you want to call it — is preferable to both options presented in the libertarian dichotomy. Superabundance would also obviate and overcome other undesirable corollaries of scarcity, including opportunity cost, supply and demand, and ultimately economy itself. Unfortunately, this world doesn’t exist.

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It would be odd, indeed, to declare, following some rigorous ethical constructivism, that property in anything is legitimate. I fear that is what I did in my first response because I never included a key part of libertarian property theory. That is, external property is only legitimate, only an extension of self-ownership, in the case of scarce goods.

You can’t homestead or acquire a good that is superabundant, such as air. To have a fully fleshed out theory of property, you need to account for the difference between scarce and non-scarce goods. I couldn’t claim a certain “area” of air as being rightfully mine since it is, for all intents and purposes, not scarce. As Rothbard puts it in “Man, Economy, and State,” air is “In most situations in unlimited abundance. It is therefore not a means and is not employed as a means to the fulfillment of ends….Air, then, though indispensable, is not a means, but a general condition of human action and welfare.”

Air, and other things of super abundance, are not goods in the economic sense. They are simply there. Therefore, they aren’t proper subjects of homesteading. That is, they can’t be owned. Suppose that we lived on the Enterprise and had access to the replicator: a machine which creates whatever we want out of thin air, at no cost (besides the few seconds it takes to work). In the world of Star Trek, everything is in super abundance (well, technically not everything since the replicator can’t create living organisms or dark matter, but it can create any economic good we know of).

Now, once I used the replicator to create a delicious pizza for me for lunch, and I am sitting down to eat it, I think it is rightfully mine. If Worf tried to come over and take it, I believe that would be, in effect, stealing. So, in a sense that pizza is rightfully mine since I made it part of my ongoing projects. However, Worf is able to use the replicator and make his own pizza, or whatever Klingons eat. There is no conflict since the resources are not scarce (ignore for the purposes of this discussion the scarcity and/or availability of the replicator itself).

This is exactly Joseph’s point. Without scarcity in goods, conflict over resources is impossible and the notion of external property becomes meaningless. He succinctly uses this point to argue against intellectual property. Let’s go back to the original quote, “At best, private property is a neutral concept in itself; based on given natural conditions, it can be either good or bad.” The theory of property is this: People have claim rights to external, scarce goods by mixing their labor with them and making them part of their ongoing uses. This is the part concerned with normative ethics.

We must delve deeper into each specific situation to apply this theory, to do applied ethics. We must first determine what is or isn’t scarce in the real world before we can see what property applies to. Pizzas and comics are scarce goods that can be legitimate property. Air and ideas are superabundant “goods” that can’t be legitimate property. The world of Star Trek, because of the “natural (the replicator isn’t really natural) conditions,” external property doesn’t really make sense. In our world, external property is a valid concept since there are scarce goods, but there are also things it doesn’t apply to.

Ultimately I believe Joseph and I are in full agreement on this issue. It only took some clarification to realize it. The issue is not consequential vs deontological reasons for external property. The issue is looking at the real world and seeing where valid property exists. It is conceivable that a world exists where they don’t. A world of superabundance. A world where I live on the Enterprise. However, I can only dream of that world. Scarcity, so far, is a fact of our world. Joseph and I agree that property only applies to those scarce objects.

A lead essay, deliberately provocative, will be followed by responses from inside and outside of C4SS. Contributions and comments from readers are enthusiastically encouraged. The following Mutual Exchange began as a feature by Joseph S. Diedrich, Private Property, the Least Bad Option. Cory Massimino and Diedrich have prepared a series of articles challenging and exploring the themes presented in Driedrich original article. Over the next week, every other day, C4SS will publish one of their responses. The final series can be followed under the title: Private Property: How, When and Why. 

In response to my recent article, “Private Property, the Least Bad Option,” Cory Massimino has penned a well-articulated rebuttal. I find myself in agreement (more or less) with everything he says, yet I don’t believe my article is in any way contradicted or undermined. In my opinion, Cory asserts that my article claims more than it actually does, and for that, I am at least partially responsible. Allow me to clarify my positions.

My central argument is as follows. Many libertarians operate under the assumption that private property alone fosters peaceful interaction. From there, many conclude that its structure and function — viz., exclusive control of resources — make private property inherently good. They assign to it the status of a universally applicable ethic (valid in all cases, regardless of given conditions).

There are two problems with that: First, private property is not sufficient to promote peaceful interaction; however, under certain circumstances, it is necessary. I say “certain circumstances” because another factor must be considered. There are two classes of resources: scarce and non-scarce. Scarce resources are excludable, and absent a system of exclusive control, conflict over their use is unavoidable. Non-scarce resources are not excludable, and therefore no conflict over their use naturally occurs. Only if we attempt to apply private property norms to them does conflict over their use become a reality.

Second, as a corollary, private property cannot be assigned the status of a universally applicable ethic. Rather, its status is contingent upon the uncontrollable dictates of nature. Its structure and function (exclusive control) dissuades conflict over scarce resources, but actually promotes conflict over non-scarce resources.

Moreover, in the realm of scarcity, private property is not only necessary for peaceful interaction. It is also logically unavoidable. There are various theories that demonstrate the logical necessity of private property, including “rights-skepticism,” Stephan Kinsella’s “estoppel” theory, and Hans-Herman Hoppe’s “argumentation ethics,” to name a few.

Hoppe begins by proposing that rational discourse (argumentation) proves self-ownership, “Justification — proof, conjecture, refutation — is argumentative justification. Anyone who denied this proposition would become involved in a performative contradiction because his denial would itself constitute an argument.” To engage in rational argumentation presupposes exclusive control over one’s own physical body:

No one could propose anything and expect the other party to convince himself of the validity of this proposition or deny it and propose something else unless his and his opponent’s right to exclusive control over their respective bodies and standing rooms were presupposed.

From there, Hoppe proceeds to deduce the logical validity of private property rights in “other scarce means.”

There are other ways to arrive at the same general conclusions; argumentation ethics is but one example. Yet all valid arguments and theories of this sort have at least one fundamental commonality—a consideration of scarcity. Hoppe mentions it explicitly. Self-ownership is a priori justified only because our bodies and standing room are scarce. In other words, private property attains validity and becomes just only because the possibility of conflict exists.

Private property in scarce resources, then, is a universally applicable human ethic. It allows each individual to assess his or her actions prior to acting. We can determine ex ante whether or not the actions we intend to take will be just or unjust.

Consider the other class of resources—those that are non-scarce. In this case, private property (exclusive control) has the opposite effect. It promotes conflict where none would otherwise arise. In addition, from an abstract theoretical viewpoint, private property is ultimately logically impossible in non-scarce resources. I argue this in an article at the MacIver Institute:

[I]f indeed property, [non-scarce] resources can be sold, rented (licensed), given away, or stolen…

To be sold, rented, given away, or stolen, however, property must obviously be owned, a requisite that makes necessary the consideration of unowned proprietary resources…

If the prognostication of universal appropriation is fulfilled, eventually a world will exist in which all [non-scarce] resources are appropriated. Every idea will be owned—every concept, every design, every plan, every thought. Indeed, even the abstract idea of an “idea” will be owned. In other words, the concept of action will be under exclusive control.

As a corollary, anyone who uses the concept of action—i.e., acts—without prior permission from its owner would be engaging in an illegitimate form of property acquisition, viz., theft. In order to seek said permission to use (or rent or buy) the concept of action, one must talk or write using words and concepts—in other words, one must act…

Via reduction ad absurdum, we expose an undeniable contradiction. Nevertheless, even though theoretically impossible in the long-run, we still have the ability to impose private property onto non-scarce resources. And we do it all the time, most notably with intellectual “property.”

My intention with “Private Property, the Least Bad Option,” was to be both descriptive and prescriptive. Hence, when I wrote, “Scarcity doesn’t govern the non-physical world, and thus it is unnecessary, imprudent, and patently foolish to impose coercive private property strictures onto it,” I was making not a theoretical observation but a precise recommendation. We should never impose artificial scarcity upon the non-scarce world of ideal resources and digital “space.”

Furthermore, when I said, “private property isn’t morally meritorious or great in itself,” I meant that in a very specific sense. Merit can only be interpersonally determined based on the ability of a means to lead to an end. Private property (which, even when it is our only logically coherent possibility, is still only a means) can be morally meritorious and great, but only insofar as it aligns with our ultimate ends.

If our ultimate end is increased social welfare and a higher standard of living (a desire predicated on peaceful interaction), then private property in scarce resources must be upheld. On the other hand, private property (or the attempt thereat) in non-scarce resources must be rejected. At best, private property is a neutral concept in itself; based on given natural conditions, it can be either good or bad.

A lead essay, deliberately provocative, will be followed by responses from inside and outside of C4SS. Contributions and comments from readers are enthusiastically encouraged. The following Mutual Exchange began as a feature by Joseph S. Diedrich, Private Property, the Least Bad Option. Cory Massimino and Diedrich have prepared a series of articles challenging and exploring the themes presented in Driedrich original article. Over the next week, every other day, C4SS will publish one of their responses. The final series can be followed under the title: Private Property: How, When and Why.

What reasons do people have to respect property rights, if any? It’s not an easy conundrum considering political theorists and moral philosophers have been grappling with it for centuries. In an excellent and ideologically significant article, Joseph Diedrich argues,

The right to private property isn’t some intuitive, natural axiom… on the contrary, private property evolved as the best and only method of peacefully allocating scarce resources.

I agree with this conclusion. Libertarians often wrongfully treat private property as a foundational rule, which presupposes all their arguments. This is the wrong approach since we need to justify private property on some grounds. Joseph says, “Private property isn’t morally meritorious or great in itself, but only insofar as it is the best and only way to avoid conflict given the reality of scarcity in the physical world.” However, I believe there are reasons to respect property rights beyond just its socially positive consequences.

It’s vital not to forget Joseph’s wonderfully put and absolutely correct argument that private property is the only method by which people can peacefully interact and allocate scarce resources. It would be odd indeed if we ignored the volumes of work, such as Human Action or Man, Economy, and State, showing how and why property rights are important, indeed necessary, for a functioning and prosperous society. Still, it would be similarly odd if we ignored the volumes of work explaining why people have an inherent moral right to private property, such as The Ethics of Liberty or Two Treatises of Government.

Before answering if there is good reason to respect private property beyond just consequential considerations, we have to ask, is there good reason to respect individual sovereignty beyond just consequential considerations? It seems evident that there is. Arguably the entire libertarian and anarchist project is predicated on the idea of a certain moral worth that each individual is entitled to, by their very nature, which makes states and oppressive hierarchies unjust.

Certainly the only reason I don’t drive to Joseph’s house and punch him in the face isn’t just that I have figured out the consequences would be harmful to me and/or society. I ought to respect his autonomy because of his nature and mine. Resorting to coercion and abandoning reason would go against my nature as a rational creature. It would be acting subhuman. I shouldn’t treat him as a means to my ends, even if I could get good effects out of doing so. Whether we call this idea “self-ownership” or not is not of huge importance here. I simply want to establish there are moral reasons to respect personal autonomy and not cross peoples’ “boundaries” without their permission, beyond the consequential considerations.

But why does this mean people are also morally obligated to respect property? Suppose I decided I was really in the mood for some pizza. I even got the dough, the cheese, and the sauce all together and made it step by step. I toiled for hours putting the ingredients together. Now, right when I was about to take a big bite out of the pizza Joseph sneaks in and takes it. He takes all eight slices. Now it could be that he ought not to do this because that action, along with the rule associated with that action, would result in bad social consequences. But, aside from that, did, in some way, Joseph violate my personal autonomy? Did he invade my “boundary,” despite never laying a hand on me?

It seems implausible to say that he didn’t just because the pizza was external to my physical body. I spent the whole day cooking that pizza just to have it taken away from me. I altered physical matter to create something new, something delicious. While we do this all the time with external objects, we also do it with our own body. The particles that make up our bodies currently weren’t always there. We constantly gain new ones and lose old ones. We take external matter and make it part of us. We make it part of our ongoing projects.

This is exactly what I’ve done with the dough, cheese, and sauce. I utilized previously unclaimed or traded particles and made them part of my ongoing project. That project being eating pizza. External property that we mix our labor with, and make part of our ongoing uses, is an extension of our individual boundary. If you don’t respect my justly acquired property, you aren’t respecting my personal autonomy.

Joseph is right in that we have good reason to respect private property because of its social consequences. The system of private property is vital to social cooperation and the efficient allocation of resources. However, that isn’t the whole story. We have other reasons to respect private property, too. Matter that is altered and made part of one’s ongoing uses is an extension of their person. Just as we have good reason to respect peoples’ individual autonomy regardless of the consequences, we have good reason to respect peoples’ property claims regardless of the consequences.

Private property is a coercive stricture. It is not coercive in the sense of putting a gun to someone’s head or stealing wealth in the form of taxes, but coercive in the sense that it circumscribes, dictates, and restricts our interaction with the natural, physical world. The realities of scarcity coerce us into choosing between private property and dismal alternatives.

We would be much better off if we weren’t tormented by scarcity. There would be no conflict or potential for conflict over physical goods. This hypothetical world – one of superabundance or post-scarcity or infinite supply or infinite reproducibility or whatever you want to call it – is preferable to both options presented in the libertarian dichotomy. Superabundance would also obviate and overcome other undesirable corollaries of scarcity, including opportunity cost, supply and demand, and ultimately economy itself. Unfortunately, this world doesn’t exist.

A superabundant world does exist, however, in ideal resources – ideas, patterns, concepts, words, expressions, information, knowledge, etc. (in other words, products of the mind). My use of a chicken soup recipe doesn’t interfere with or exclude anyone else’s ability also use it. The same goes for the design of an internal combustion engine, the arrangement and expression of words in a novel, the colors and patterns of a painting, the notes and rhythms of a musical composition, and anything that exists beyond the constraints of physical goods.

The fact that a superabundant supply of ideal resources exists does not imply that everyone has infinite knowledge. The process of discovery converts ignorance into awareness, but it has no effect on excludability or scarcity. When Pythagoras discovered his famous theorem, he was initially the only one who knew of it. Yet just because everyone else was ignorant of it didn’t mean that it was scarce. Anyone else was free to independently discover it or learn of it from Pythagoras (if he shared it) and in turn make use of it without excluding anyone else from doing the same.

Ideal resources do, of course, interact with scarce objects. For example, thoughts are communicated as arrangements of words, which are often written on or displayed via scarce objects, such as paper or computer screens. On a more abstract level, the scarcity of neurons, time, and space also come into play.

The way that non-scarce, ideal resources interact with scarce, physical resources has changed and continues to change. The first great revolution occurred with the advent of written language. The second great revolution involved the supplanting of copyists by publishers upon the invention of the Gutenberg press. The third great revolution, which we are all witness to, has been the transformation from print to digital. The cloud effectively eliminates scarcity as it relates to the distribution of recorded information.

Think about radiation therapy for a moment. Patients afflicted with cancer can often turn to radiation as a beneficial treatment. It purges their bodies of malignant cells and overcomes the horror of disease. However, if a healthy person is exposed to radiation, or if radiation is applied to a sick person improperly, the results are ghastly. Instead of promoting healing and prolonging life, the bad radiation engenders suffering and induces mortality.

As with radiation, the imposition of unnecessary and indiscriminate private property strictures inhibits human progress. Where scarcity doesn’t exist, the necessity of making that infamous dichotomic choice isn’t coerced upon us. When we choose to apply private property strictures to non-scarce ideal resources in the form of intellectual property, for example, we leave the realm of natural coercion (uncontrollable elements of the physical world requiring us to make undesirable choices) and enter into the realm of artificial coercion (humans coercing other humans).

This is what libertarians often miss. We can become so attached to the idea of private property that we believe we have to create it or impose it or legislate it even when it is unnecessary. Scarcity doesn’t govern the non-physical world, and thus it is unnecessary, imprudent, and patently foolish to impose coercive private property strictures onto it. Remember the old adage that says you shouldn’t fix what’s not broken?

In an Edenesque superabundant world, space, time, and self would still be scarce. Even if I were able to conjure up anything that I wanted, I would still be limited by time, by my physical body and the space it occupies, and by my own mortality. These conditions, however, undermine neither self-ownership nor the argument that private property is undesirable. Immortality, unlimited space, and unlimited time would seem to be preferable to the opposite.

The right to private property isn’t some intuitive, natural axiom, come down from the Heavens as an eternal law of all human interaction. On the contrary, private property evolved as the best and only method of peacefully allocating scarce resources. As the commons became smaller and smaller this undeniable fact became more and more evident. While private property is preferable to all available alternatives, it is not inherently desirable or good. Recognizing this clarifies and enhances libertarian theory.

Translations for this article:

• Portuguese, Propriedade privada, dos males o menor.

Le leggi sulla proprietà intellettuale comprendono i brevetti, i diritti d’autore e i marchi commerciali. Da qualche decennio ad oggi le imprese americane, soprattutto quelle ad alto contenuto tecnologico, hanno preso a dipendere sempre di più da queste leggi per proteggere i “loro profitti”: l’impresa prende il capitale mentre il lavoro individuale raramente riceve una ricompensa. Nota la Reuters, inoltre, che questo aumento delle cause legali è il prodotto di differenze tra le sentenze dei giudici costituzionali e le sentenze di una corte d’appello specializzata con sede a Washington che si occupa dei casi di brevetto a livello nazionale; su alcuni punti chiave le due parti non hanno raggiunto un accordo. Tenete conto del fatto che una sentenza sulla proprietà intellettuale può avere vaste conseguenze sulla società: il genoma umano e i vaccini dovrebbero essere brevettati o possono rimanere risorsa comune? Io propendo per quest’ultima. Ma l’industria farmaceutica investe molti soldi e molte energie politiche a favore di una forte protezione dei brevetti, così da poter proteggere il suo “diritto” multimilionario ad incassare una rendita su un monopolio inventato.

Se poi le cause legali che riguardano la PI sono aumentate è anche perché questa restringe l’ambito dell’attività umana e l’innovazione.

Le cause aumentano perché la libertà è la nuova etica: creative commons è qui per restare. La rivoluzione tecnologica generata dall’open source sta emergendo davanti ai nostri occhi con il suo tema della decentralizzazione, costringendo lo status quo a cambiare, e questo agli interessi particolari non piace. Per nostra fortuna il mondo è anarchico. La rivoluzione stigmergica lavora per vie traverse attorno alle gerarchie tradizionali e il loro potere di coercizione: il vecchio ordine (per quanto ci provi) non riesce a stare dietro.

Quello che vediamo è forza sociale in azione. In questa nuova pubblica piazza le corti, il potere legislativo e gli interessi particolari sono impotenti. Il mercato così liberato non è interessato alla proprietà delle idee, ma al progresso, all’innovazione e alla collaborazione nel lavoro. Il colonialismo corporativo ha i giorni contati.

Se si vuole liberare la società le idee non devono avere padroni. Una volta che queste finiscono nel mercato, chiunque dovrebbe essere libero di aggiungervi le proprie conoscenze e mandarne avanti la realizzazione pratica. Questo significa semplicemente massimizzare le capacità innovative dell’attività umana. Le migliori realizzazioni pratiche dovrebbero essere lasciate libere di svilupparsi. La PI, con le leggi che riconoscono la “proprietà” dell’informazione, restringe il potenziale creativo e innovativo della popolazione in senso ampio. Le leggi sulla PI servono a proteggere il capitale a spese dei lavoratori dotati di talento. Le idee sono uno strumento potente, fondamentale, in una società libera; e non dovrebbero essere ingabbiate dall’attivismo legalistico.

Grazie alle nuove tecnologie, oggi informazione e idee si diffondono senza restrizioni. L’attività umana ha un nuovo management: l’individuo. L’uso dei tribunali per privatizzare le idee e proibire il libero flusso delle informazioni è un credo che appartiene al passato; ecco perché è emerso creative commons. Il mercato va sempre alla ricerca della libertà, perché l’attività umana opera per l’avanzamento reciproco di tutte le parti della società.

L’attività umana dotata di talento, libera, è il motore che fa andare una società libera. L’ordine anarchico sta emergendo. Mentre seppelliamo la proprietà intellettuale reclamiamo il nostro potere sul bene comune.

Traduzione di Enrico Sanna.

“What we are seeing is social power at work. The courts, legislature and special interests are powerless in the new public arena. The liberated market is not interested in the ownership of ideas, but rather progress, innovation and co-operative labor. The days of corporate colonialism are numbered.”