Intellectual property - 9 September 2010 |
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I recently read N. Stephan Kinsella, Against Intellectual Property. Who’d have thought something so apparently simple would turn out to be so complicated?
Well, after a good deal of to-ing and fro-ing, and with grateful thanks to a few friends (X, T, G, M, J, C, G, D, V, J, N, R, B), here’s a breakdown of the state of play as I see it.
1. The utilitarian argument
1.1 In favour of IP is a utilitarian argument that says unless you grant IP rights people won’t bother to innovate.
1.2 Critics of IP respond by pointing out that plenty of innovation occurs without IP, e.g. open source software.
1.3 Proponents point out that the presence of generosity in one field without IP rights doesn’t imply that commercial activity will take place in other fields without IP rights.
1.4 Critics then respond that utilitarianism is a bad basis for ethics anyway.
2. The ideas-aren’t-property argument
2.1 Critics of IP claim that ideas can’t be “owned” in the strict sense, since they are not “scarce.” “Scarce” in this context is a technical term meaning “my ownership necessarily deprives you of ownership”; it has nothing to do with how common certain things are.
2.2 At this point the debate gets confusing (to me, at least), perhaps because of equivocation on the meaning of “scarce.”
2.3 Proponents of IP might question whether scarcity, even defined as in 2.1, is in fact the necessary and sufficient condition for whether something can be owned.
2.4 Proponents of IP might further point out that we “own” our labour, and therefore we surely own the product of our labour, even if that product is an idea.
2.5 Critics of IP press the “scarcity” point, insisting that IP laws do not arise from the natural scarcity of ideas, but rather are themselves a totalitarian attempt to create artificial scarcity of ideas.
3. Distinctions between different kinds of ideas
3.1 We should distinguish between different kinds of ideas, and therefore between different kinds of IP, such as copyright, patent, trade secrets, etc.
3.2 Some critics would grant that although copyright is illegitimate, a trade secret (for example) can be protected somehow, though not through IP laws, but through laws of contract (see 4, below). For example, an employee voluntarily enters an contractual agreement with his boss never to divulge a secret fried chicken recipe.
4. Contractual restrictions vs. intellectual property
4.1 Critics of IP grant that the owner of an idea can place restrictions on its use when they sell it to someone. However, this (they argue) is not carried out under IP law, but under regular contract law.
4.2 The distinction between a contractual obligation and an IP law becomes clear if we consider the case of a third party. Since this restriction is contractual, third parties who have not entered willingly into the contract are not bound by it. Consequently, if A sells B a book subject to certain restrictions (no copying, for example), but B then loses the book and C finds it, C is not bound by the no-copy restriction. Thus the ideas contained in the book are not protected; only B’s use of them is.
4.3 Others might respond by claiming that B cannot give away, or even lose, rights he did not himself possess, so even though C did not enter into the contract with A he is still not free to copy the work. A, they insist, still owns the right to copy the idea; C doesn’t own it, and CANNOT own it unless A relinquishes it. Such people might claim that C, on finding the book, has a moral obligation to determine what rights A has reserved before copying it, and furthermore that C is morally obligated not to infringe those rights.
5. Other issues
5.1 Plagiarism is lying, and therefore sinful. But not all sins should be crimes, and there is disagreement over whether plagiarism should be criminalised.
5.2 Generosity is good.
5.3 Everything we have comes from God anyway.
5.4 Since everyone agrees that theft is wrong, the basic issue is this: “Do ideas count as property?”
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Posted by Steve Jeffery · Topics: Minister's Blog