12. “Contra Copyright, Again”
Abstract: This revised version of the author’s 1985 article “Contra Copyright” includes a new, introductory section explaining the background of the author’s path to copyright abolitionism. The main article surveys various libertarian debates on this issue, including the anti-intellectual property (IP) views of Benjamin Tucker and the pro-IP views of Lysander Spooner. McElroy argues that the issue of copyright hinges on the question: can ideas be property? Because only scarce goods can be property, and ideas are not scarce, copyright must be rejected as unjustified.
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I could not blame Wendy McElroy for not being prepared to debate the new theory of property rights I first presented in debate with her, but she’s now had thirty years to debate my theory and she has still never done it. For in that presentation I undercut all the assumptions she was prepared to debate and in effect left her to debate the straw man she brought into the room with her. She is still debating that straw man. She has never debated me.
Wendy was prepared to debate statist copyrights and patents. Wendy was prepared to refute the ownership of ideas. Wendy was prepared to argue that the intangible could not be owned. Wendy was prepared to argue that no one could own what existed only inside someone else’s head.
I rejected all of those assumptions in the first five minutes of my presentation. I rejected both the terms “copyright” and “intellectual property” in the first fifteen minutes.
Maybe Wendy should have taken some notes and actually tried to answer my presentation. Instead, she went on with her pre-prepared speech and left it to the audience to listen and debate with me.
One of the audience members — Robert LeFevre — lent his endorsement to my presentation when I soon published it with a pamphlet. Unfortunately after thirty years LeFevre’s actual words are in a storage locker in a box somewhere, and it will be a while before I can recover them.
What Wendy has never in thirty years addressed is that my logorights theory is not a theory of intellectual property but a theory of new natural rights theory of property deriving from the concept of “material identity.” Previous theories of property made a distinction between real property — and Locke wrote about ownership arising from a man mixing his labor with land to homestead it — and everything else, which was regarded as ephemeral if not completely intangible. Nineteenth century libertarians divided along a false dichotomy because what property actually was and how it came into being had never been rigorously defined.
That’s the task I took on in my debate with Wendy and in the articles that soon followed.
My argument should not be hard to understand for someone like Wendy who has a familiarity with Ayn Rand’s Aristotelian-based epistemology and ontology.
If an author writes an original work that work is not the materials upon which the work is printed. This might have been a hard concept to understand in the age before computers — although I think Morse and Tesla could easily have grasped it — but an author created something which is objectively real and can be apprehended, as can any real thing, but observing its component properties.
When I completed writing my first novel Alongside Night it was not something intangible existing only in my mind. The process of writing was making something that was objectively real and capable of being seen by others than myself. The whole nature and purpose of authorship is other-directed.
The first medium that carried the novel was typing paper; but over the years this real and new thing I made has existed not just as typescript but also in bound books, on computer disks, as information objects transmitted over media both wired and wireless; and soon to be both an audio dramatization from Sound of Liberty/ARTC and a movie produced and directed by me, from my own screenplay adaptation.
None of these things are ideas. None of these things owe their existence to what is in someone else’s head. All of these things are reflections and usages of a thing I made and the component properties and uses that can be extracted from the whole.
I have used several different terms to explain this over the past thirty years since my first presentation. I have called these things “a logos” and the property rights in them logorights. I have used the terms “informational property” and referred to the “material identity” which makes anything ownable as property.
I specifically addressed the necessity of property, to be an economic good, to be scarce, and explained how a property, to be ownable, does not need to be limited in all dimensions (land ownership, for example, does not own the unlimited sky above it), but only in some dimensions.
I’ve explained how the limits of what a specific logos or information is by the Law of Identity makes it a scarce item of commerce, no matter that there be a single copy of a trillion. The copies being identical to the original, the number of existents vary but the entity — thing — itself remains unique and therefore scarce because copying does not change its defining identity.
I also explained how separating out rights of uses of that property — and licensing them — is no different than leasing a house or apartment, or dividing use of a space by time (as in a timeshare), or selling a ride in a car as opposed to the car itself — and that the assumption that in allowing others to observe and make use of a created work of distinct material identity the owner abandons his ownership of the thing necessarily must annihilate the concept of private property entirely.
Most recently, in an attempt to leave in my rearview mirror the straw-man debates about owning ideas, intangibles, and what is in other people’s minds, I have devised the term Media Carried Property (MCP) as a replacement for the misleading term IP — even when by that abbreviation I meant not Intellectual Property but Informational Property.
MCP says what I mean better and without as much baggage.
Wendy has never addressed any of this. Perhaps she believes one has to be long dead before one’s ideas should be addressed.
Or maybe Victor Koman was just more dashing than I was.
References:
The Libertarian Case for IP
http://jneilschulman.rationalreview.com/2011/03/the-libertarian-case-for-ip/
MCP
http://jneilschulman.rationalreview.com/2011/04/mcp/
My comments in reply to Stephan Kinsella’s
The Origins of Libertarian IP Abolitionism
http://blog.mises.org/16319/the-origins-of-libertarian-ip-abolitionism
Neil, Wendy apparently came prepared to debate a then hot topic and one that had been live for decades: IP. She had settled on a view, prepared for it. To criticize her for not changing her speech in response to your unexpected opening talk seems bizarre to me.
And of course she is under no obligation to respond to you in the ensuing 30 years. Maybe she had better things to do. In fact her work inspired a new generation of libertarians who have taken up the IP abolitionist position, which has become more prominent and relevant since the rise of digital information and the internet in the 90s. I’d say she has done a lot.
Anyway, your theory has just morphed from “informational property” to “MCP”. Can you let us know when you are done? Okay I kid.
Stephan, it was Wendy who was complaining that all the audience questions went to me. She concluded that was because the audience agreed with her; I conclude it was that my presentation made her side of the debate quaint and the audience had heard nothing new they needed to ask about. She could have dropped her prepared notes and dealt with the pro position that I offered but she chose not to adapt. A predictably Darwinian result followed.
Nonetheless, “She was busy” for the next 30 years seems inadequate for someone who’s supposed to be a thinker in the libertarian movement. Of course that’s your excuse on her behalf; I’ve never heard one from Wendy.
Neil, maybe you haven’t made your position clear enough to be responded to.
“If a thing can be copied, it’s a thing.” Clear enough for you, Sheldon?
So it’s a thing… So what? I fail to see how “it’s a thing” is a valid theory of owning patterns. Just because something is a “thing” doesn’t mean it’s ownable.
“When I completed writing my first novel Alongside Night it was not something intangible existing only in my mind. The process of writing was making something that was objectively real and capable of being seen by others than myself. The whole nature and purpose of authorship is other-directed.”
So are you arguing that because the words you write are not abstract ideas in your head but actual words on paper that you’ve labored to create that they are in fact property?
So if I take your book and spend several days copying it out into Microsoft Word (or, perhaps, use a word scanning program to read it off the page and into a text file) is the resulting creation something I own? That I can sell? Would that violate your concept of owning the physical product?
You create a book through time and effort. So do I. You own the book that you spent 10 years writing. I own the book that I spent two days copying and two minutes printing.
If this is indeed your starting point, if the physical result of your labor is what you truly own, then I don’t see what the difference is between wanting no IP laws and whatever you propose.
“The first medium that carried the novel was typing paper; but over the years this real and new thing I made has existed not just as typescript but also in bound books, on computer disks, as information objects transmitted over media both wired and wireless; and soon to be both an audio dramatization from Sound of Liberty/ARTC and a movie produced and directed by me, from my own screenplay adaptation.”
Now hold on: you just said that the act of defined physical existence makes it yours (it’s not something intangible), and yet there’s something there that’s still yours regardless of what the physical existence is. That sounds to me like you’re trying to argue that a story is still yours no matter what the representation of it is. But that doesn’t follow when you just finished saying that what makes it yours is its physical representation.
“None of these things are ideas. None of these things owe their existence to what is in someone else’s head. All of these things are reflections and usages of a thing I made and the component properties and uses that can be extracted from the whole.”
All of those things are physical representations of an imaginary, intangible entity, you mean? You own the physical representation, and the intangible entity is not?
The rest of it I’d have to read more about because I didn’t understand a word (likely because I wasn’t able to follow your reasoning past the first few paragraphs).
I’d be welcome for a rewording but until then I’d have to agree with Sheldon: your position isn’t really clear.
Joe Schmoe (like that’s a real name) wrote, “You create a book through time and effort. So do I. You own the book that you spent 10 years writing. I own the book that I spent two days copying and two minutes printing.”
Already asked and answered in my original article at http://jneilschulman.rationalreview.com/2011/03/the-libertarian-case-for-ip/:
“Objection Two: By saying that only the owner of a logoright is entitled to the profits from making a copy, aren’t you denying the profits accruing to the labor of those who copy it?
“Answer: Not at all. Copying a logos is a separate act from creating a logos, and must be compensated separately. If I write a logos on a manuscript, I must pay someone if I am to be entitled to their labor in copying it–and if they copy it onto their own materials, I must pay for that, too. This happens every time a manuscript is taken to a quick printing store to make copies.
“However, the question really being asked is: doesn’t the labor of copying something entitle someone to the rights accruing to the ownership of the logos?
“And the answer to that question is a clear no. That labor is involved in copying something makes no statement and produces no claim over someone else’s property.
“If it did, the labor used in stealing a car could be used as a case for transfer of property rights in that car.
“Property rights must be determined first, then and only then do questions about the profits accruing to labor done on or with that property arise.
“The most exact analogy here to the taking of a property, applying labor, and producing additional properties is that of a factory–let’s say for simplicity that it’s an automobile factory.
“The factory as a property is a “producer’s” good, and it is owned by whoever created that factory or the owner’s market descendants. Workers come into the factory and–applying their labor on new materials using that factory–produce the consumer’s good of the automobile.
“Would one therefore conclude that the workers own the automobiles they are producing?
“If you say that, then you are back to “labor theory of value” and discount the necessity of capital in the production of goods.
“Even if the workers were bringing their own raw materials into the factory and producing automobiles, this would not be sufficient to establish their titles over the produced automobiles: it would first have to be established that they had the right to use the factory as a producer’s good.
“Likewise, the logos is a producer’s good for which the rights must be obtained before it may be used to create additional goods–whether those goods are additional producer’s goods or consumer’s goods.”
What is the minimal amount of an information needed for a logo? Would not expressing, a blank page if you will, be capable of being called an idea? I wish to inform the world of what needs to be improved in Gods plan of salvation – a blank page is my expression. I zealously protect this work, anyone who leaves a page blank in a book is using my idea without consent. Now I have come to realize that some authors, at the end of a chapter wish to use my logo and have their readers contemplate God’s perfect plan so they leave the remainder of a page blank before beginning the next chapter. My work is a thing capable of being copied therefore it is a thing. It has material identity. I, therefore, have a cause against those who have stolen from me.
Two men, one in Arizona, the other in Oregon, are writing Limericks about their dog named Spot. They each arrive at the same combination of words. Certainly not an impossibility correct? Each man thinks his piece a work of genius and prints a 1000 copies for sale. A signature is all that is needed to differentiate? Can I then place my signature upon the same work and claim I had the same flash of inspiration?
“What is the minimal amount of an information needed for a logo?”
Again, already asked and answered in my original article at http://jneilschulman.rationalreview.com/2011/03/the-libertarian-case-for-ip/:
“Third. Can the owner of the logoright ascertain the boundaries of her property rights–that is, are there limits to that which is being claimed?
“The answer to boundaries–limits–on a logos is again “yes.” But–and this is a crucial point to be understood–limits always are dependent on the nature of the property right being claimed.
“When one speaks of boundaries of property rights in land, one speaks of dimensions of area.
“When one speaks of property right boundaries in the radio spectrum, complaining that there are no boundaries of an electromagnetic wave’s area would be meaningless: in defining the limits of that kind of property, one rightly speaks of limits in an electromagnetic wave’s amplitude and frequency.
“And, when one speaks of the property boundaries on a logos, one speaks of the limits of identity, the signal of which is defined and limited by the principles of information theory, and the content of such signal which must be defined by each use to which the information can be put.
“In discussing the identity of a logos as a signal, one discusses its limits and boundaries in terms of the minimum number of informational bits necessary to identify that logos as a distinct creation, the resolution of a logos, the threshold of predictability of that logos as against background noise, and other criteria commonly used in dealing with information storage and transmission.
“In discussing the identity of the logos as content, one must make a metaphysical argument. Since by definition, each logos has a specific informational identity that differentiates, binds, and delimits its nature–the qualities and traits through which it is capable of being exploited–the boundary limits here are set by its identity itself.”
I’m done reprinting answers from the original article here for someone too intellectually lazy to click through and read it.
Kinsella, Richman, Schmoe – you should be ashamed of yourselves. Instead of dealing with Schulman’s reasonable arguments and propositions, you have acted as weasels.
Neil -
Sorry you had to try corner a non-existent market. Once something becomes 1s and 0s it becomes an infinite supply and therefore the price drops to zero. Kinda hard to claim ownership over something that is infinite and nigh-zero cost to produce, even if it took your ‘blood, sweat, and tears’ to make the original copy. In fact I would be proud people Torrented my work as then I would know people would be reading it and therefore reaching an audience. I’m not a harcor libertarian scholar, but this isn’t really that hard of a concept to grasp. You can still make money in today’s internet-world but its a fundamentally different ballgame then your “write a manuscript and sell it for $15 bucks a pop” era of the 20th century.
Welcome to the Digital Age.
Sorry, philliam, but your argument is absurd. A gold coin consists of atoms and atoms exist in practically-infinite supply (like your “1s and 0s”). Should we, following your logic, conclude that the “price drops to zero” for gold coins just because the quantity of atoms in the universe is practically infinite? Even information has a physical manifestation. “1s and 0s” as you put it are just a representation of that physical reality.
That’s a false positive is it not? Philliam seems to be describing how technology has allowed copies of entertainment media drop the price to zero. That is not to say the showing isn’t valuable in any regards. The entertainment just has value in a variety of other methods.
If you have a TV series, one episode on the internet isn’t a big deal. When the entire series is on Netflix, it provides more value. You pay for that access.
A gold coin can not be digitized and copied. It has a certain value based on what others are willing to give for it. It’s somewhat dubious to try to mix apples and oranges just because both are fruit.
(yea I know I’m late to the party, just came across a link to this page)
[quote]Should we, following your logic, conclude that the “price drops to zero” for gold coins just because the quantity of atoms in the universe is practically infinite?[/quote]
No, because there’s a crucial difference between gold coins and digital goods: While the quantity of atoms in the universe may be practically infinite. The availability is not.
It is the quantity and the availability in combination that determine wether a good is scarce (and thus valuable).
When you create a digital good, the value is not in the good, that’s a commodity by nature, it’s in the time you put in.
The thing about time is that once spent you can’t recoup it, so if you want to get paid for your time you had better convince someone or somegroup to do so before you spent it. That’s what things like kickstart are for.
As to your ‘argument’ in http://jneilschulman.rationalreview.com/2011/03/the-libertarian-case-for-ip/ the point you make is properly about trademark/identity not copyright.
That’s a completely different area of law altogether.
(and your argument is a great example of why lumping copyright/patents/trademark altogether under the heading IP is a real good way to muddy the waters)
The copying of a digital good does not have the quality issues the copying of a natural good has. Consequently the copying of a digital good (properly attributed) spreads your trademark, not dilutes it.
This increasing it’s value, not diminishes it, the person doing it has not taken something away from you, on the contrary he just helped to increase the value of your brand for free.
The key that you are missing John is that digitized “property” has a near-zero cost to produce. Just about anyone can easily click “copy” at virtually zero cost. A gold coin on the other hand does not have a near-zero cost of production. On the contrary since the substance known as gold is scarce and the tools to produce a coin from the gold is scarce as well the cost is very high to produce a coin.
[...] Wendy McElroy in works such as Copyright and Patent in Benjamin Tucker’s periodical Liberty and Contra Copyright, Again, early libertarian and proto-libertarians and anarchists in the late 1800s had vigorous debates on [...]
[...] Wendy McElroy in works such as Copyright and Patent in Benjamin Tucker’s periodical Liberty and Contra Copyright, Again, early libertarian and proto-libertarians and anarchists in the late 1800s had vigorous debates on [...]
[...] “Retrospective” section of Wendy McElroy’s 2011 Libertarian Papers article “Contra Copyright, Again,” she discusses the beginnings of the modern libertarian anti-IP movement in the 1980s, [...]