Special to L. Neil Smith’s The Libertarian Enterprise

Here's a snippet of an argument that's currently raging on a decidedly non-libertarian forum where intellectual property rights (IPR) is a very hot topic:

"I'm a lot more interested in coming up with ways where it's more CONVENIENT for ordinary music listening people to go to an identifiable place (i.e. record stores, or some equivalent) where they know they can find and get the music they want, than it is for them to hunt down 'counterfeit versions' online."

Setting aside the fact that such places already exist and have for some time, this really is not the issue at all. While I accept the frustration and the desire for a short-term solution, I'm much more concerned for a long-term solution to the issue. And the only way we can achieve a long-term solution is if we absolutely refuse to surrender the moral high ground to those are engaged in the behavior we wish to discourage. In other words, we must insist on identifying the offending activity correctly—as theft—and using that correct identification when we discuss the issue.

Once we surrender our right to call a thing what it is—once the theft of intellectual property becomes "acceptable" in a cultural sense—we will have lost the war. The petty criminals who are currently engaged in these acts of theft are only a small part of the problem; the people we must be concerned with are those in positions of perceived authority who are encouraging, defending, and providing the rationalizations for those acts.

Intellectual property rights are the recognition of a true natural monopoly. No one else can be me. No one else can have my thoughts in the same way that I have them, bringing all of my experiences to bear on my knowledge and no one else can communicate those thoughts with exactly the same style which grows out of who and what I am—the sum of my knowledge, experience, and independent thought. Each of us, while possibly sharing very similar experiences and knowledge, is nevertheless unique in our response to their impact on us.

There is a willful misunderstanding in the anti-IPR mentality, expressed over and over by people who clearly know that what they claim is in error. The mantra goes like this: if intellectual property rights exist then there can never be any progress because every idea that comes from "A" can never be acted upon by "B". This assertion is incorrect on so many levels it's difficult to know where to begin.

Ideas, in and of themselves, are not intellectual property. The use we make of those ideas (their unique arrangements driven by our knowledge and experience) may or may not be intellectual property. Laws of physical reality are not intellectual property—they exist whether we are aware of them and whether we understand them or not -- our identification of them has no impact on their existence or validity or function.

If I think of a house, and you, seeing my house, then think of a house of your own there has been no infringement of IRP. The concept of shelter from the elements is not defensible property and it's perfectly possible for you to think of shelter as a cave or something other than a cave without ever setting eyes on my version. If you're not capable of, or haven't yet made, that conceptual leap, the knowledge of the existence of "house"—your subsequent awareness of the possibility of "house" thanks to your knowledge of mine—represents my gift to the public domain. The knowledge that a thing can be done, regardless of the actual method of its doing, is a demonstrable spur to innovation.

If I think of a house, and you, wanting a house but being unwilling to go to the mental effort of thinking up your own house, request that I share the specific plan with you I have the right (that plan being my property) to share it with you, or not. I might be inclined just to give the plan to you (because the property values in my neighborhood will go up when you start living in a house and stop living in a ditch, or because I like you and don't wish to see you huddled in the cold).

I might offer to "sell" the plan—trade its value to you in exchange for something you have that I value and do not have—at which point you must decide if you like the characteristics of my house (and the knowledge that it is engineered to stand up instead of fall down) enough that you're willing to pay for the plan, or not.

Or I might just tell you no. I don't want to share my plan with you. I like having a one-of-a-kind house. What you decide to do at that point determines what sort of person you are. You know that "house" is possible. You know what at least one example of "house" looks like, and if you've been in my house, you might have some idea of how it functions. All of that information is yours to do with what you will and although it's possible you will build an exact duplicate of my house, it's unlikely. In any event, I am not required to share with you all of the lessons I learned from building my house in the form of the plan.

The fact that the plan exists on paper (or some other medium) does not magically transform it into public property. The act of "writing it down" in no way changes the nature, or the ownership, of the unique expression of information. If you take the plan without my consent you have committed an act of theft. And if you further disseminate the plan you have acquired through theft you become a purveyor of stolen property, commonly known as a fence.

The same logical steps apply to a published work. If I invest the time to write a 50,000 word novel that work is my property—it could not have been written by anyone but me based on who and what I am and on my experiences in life and my knowledge of events and human behavior. If you decide you'd like to read it, I might decide, for reasons of my own, to give you a copy. Perhaps I think (or hope) that if I give you a copy you'll be inspired to purchase other of my works. Perhaps I'm so proud of its contents, or so eager to influence your future behavior, that it's worth the cost to me to provide you with a copy. In any event, it's my decision. What I have given you is that physical copy of the novel. What I have not given you is the "right" to counterfeit my book and compete with me using my own property, exchanging it for money or some other value you seek (like the ability to barter for other people's intellectual property be that music or print or art).

Perhaps, instead, I offer you the opportunity to purchase it. Once you have purchased it you own that physical copy of the book. You are explicitly invited to read what I have written and integrate it into your own experiences and knowledge. It may inspire you to write your own unique work, based on who and what you are and your experiences in life (including the reading of my book) and your knowledge of events and human behavior, in which case the world may become a richer place. You may hate it, in which case it's your right to burn it or rip it to shreds. What I have not sold you is the "right" to counterfeit my book and compete with me using my own property, exchanging it for money or some other value you seek (like the ability to barter for other people's intellectual property be that music or print or art).

If you decide the price is too high, you are under no obligation to purchase my book. If you decide the price is too high but you are entitled to have it anyway you are taking something for which you have exchanged no value and you are committing an act of theft. And if you further disseminate the book you have acquired through theft you become a purveyor of stolen property, commonly known as a fence.

The person whose behavior is in question here is not, and never has been, mine. The behavior in question here is that of the person who takes, on terms not offered by the owner, what is not his.

Moving on from there, what is the lesson to be learned by the thief?

For one thing he learns that, in our current culture, there are "authority figures" who will provide him with salve for his conscience, assuring him that he's committed no crime because once I put pen to paper (or electron to recording media) I no longer own my property.

Another, and potentially more costly lesson is that if it's impossible to stop you or catch you, you've done no harm. It's a very small step indeed—in fact no step at all—from there to: "The shop owner will never miss this little item. He has plenty of them, and there's no guarantee that he'll ever sell them all, so it won't hurt anything if I take one (provided I can get out the door without being caught)". If theft becomes the cultural norm it will spread throughout the range of human interaction—after all why should you be a sucker and pay for what someone else has no reluctance to take for free?

The person whose behavior is in question here is not, and never has been, mine. The behavior in question here is that of the person who takes, on terms not offered by the owner, what is not his.

I don't know what the solutions to the current ease of availability issues are. I, too, love it that I have the whole world's knowledge is at my fingertips—but it doesn't piss me off that there are those who have chosen to ask me to pay for their insights. What I do know is that if we acquiesce to the insistence that no harm has been done when we take property on the terms not offered by the owner, we will have done immeasurable harm to ourselves and future generations. So what I'll settle for, for the time being, is the right to call a thief a thief and not let the act be carried out without at least the psychological and social stigma it deserves.

 

Reprinted from The Libertarian Enterprise for Number 591, October 11, 2010