Monday, October 4, 2010

Does IP Really Make Sense?

It took quite a while after finding myself steeped in radical libertarian theory that I even began to look at the concept of intellectual property seriously. But over the last year or so, I've seen and heard some things that I, quite frankly, can't mentally revoke. The seed has been firmly planted, and I'm afraid that I'm now growing the flowers of contempt for a concept that I used to take so much for granted.

So what nudged me in the right (wrong?) direction? Well, Stephen Kinsella had quite an impact on my line of reasoning. Several other prominent thinkers who would identify themselves as "left-libertarian" also had quite a substantial influence. But, to be fair to myself, it was a subject that I hadn't considered too seriously in the past. I (like many of you, I'm sure) just took the idea for granted. Defending intellectual property was just part and parcel to defending any other form of property, right? Well, yes and no.

I'd venture to say that I'll stick up for property rights when and where I see it - but the operative qualifier there is the word property. "Exactly, like 'intellectual property'!" Not so fast; what is it that we're claiming a person has a property in here? "Ideas, of course!" Fair enough...but does it really make sense that someone can own something intangible - at least in the sense that we generally recognize that term? I think the defense of it as such is more of an uphill battle than one might be led to believe initially. In fact, I've come to believe that the general argument is intractable in some ways.

Kinsella has a shiny array of IP-busting rhetorical cannons on his side of the debate. I won't pretend that I could summarize them efficiently in the span of a short post, but this is a pretty good start for the uninitiated. However, it's worth noting that I'm not in complete lock-step with the likes of the infamous anti-IP-IP-lawyer here. I happen to think that one of his trusty cannons may not prove too effective in the long run.

One of his arguments seems to hinge on the fact that ideas are not scarce - that they are, for all general purposes, infinitely reproducible. This may or may not be true. I won't bore anyone with that particular debate. I tend to agree that, conceptually, property in itself has evolved along with civilization in order to govern how we handle control over finite resources. On the other hand, it seems like this could be shaky ground for considering IP law unjust - as coming along and taking a baseball bat to your car doesn't seem to necessarily be less of a tort simply because we could press a button and make a new one. Of course, a more subtle rebuttal may conclude that even in a world without scarcity, that the subjective valuation of any particular thing that is mine might be higher than that of a replacement (sentimental value perhaps). Or, if they wanted to be crafty, you could make a strong argument for not a time value of money but possibly even a time value of assets (in a world of subjective value, of course). I'm not an economist, but it seems if we can recognize the value of time given money (in the interest that we might accrue from an investment) it seems like you could make a case for a psychological return on use of an asset. In other words, any time you might have robbed me of (by taking away something I value) might prove to have value that could still constitute a tort. But I don't think we even have to go this far in argument.

The defense of IP is really wedded to the concept that someone owns an idea. And that by using their idea, you have stolen their property (or labor depending on your interpretation). But as occurs with so many complex actions or human institutions I believe we might be getting too mixed up in the semantics of the argument - the language itself. If you tell me that you have an idea, what are you really saying? You're referring to a specific neural pattern you're creating in your own brain at the cellular level (or rather a confluence of several neural patterns). This is (from what we understand) what fundamentally constitutes a thought. And you can even say that you own this thought in a very real way. It's quite literally inside your head. And as a part of you, no one could deny that.

But if you think about it, where things really start to break down is if in seeing someone else utilize the resultant of your idea or it's conveyance you begin to proclaim that he took your idea. This might seem like a rhetorical jab here (it's not intended to be), but this almost relays an ape-like understanding of the process of thought. Your thoughts aren't floating out in the ether, where you find yourself warding it from the snatch of undeserving minds. What is really occurring is that another human is seeing what you have done, and being the primo-pattern-builder that defines us, he is quite literally assimilating that pattern, inductively, within his own mind. Ladies and gentleman, we now have two distinctively separate, yet similar ideas in two separate minds.

Did the second individual derive this pattern all on his lonesome? Well, no, of course not. But like MOST LEARNING, we often observe others and incorporate their patterns (thoughts) into our own ideological index so to speak. Whenever I look at someone else's clothes, when I see what someone buys at the store, when I read a book - patterns are being deciphered if not directly communicated. We don't look at the man building a chair or a house and contend, "Hey, that's someone else's idea! Stop! Thief!" And yet, this is how we act with IP law in some regards. I think examining the very real fact that, even if we were to treat ideas as tangible objects, it would be silly to ascertain that they are being stolen; as if they are being selfishly pulled from some divinely Platonic void.

Of course, these are just my musings on the subject. I strongly suggest that anyone that's interested look into some of the IP debates that have been sparked in the libertarian sphere as those have been some of the most informative and divisive that I've witnessed. Regardless of what your opinion is, it's a debate worth having. And it just goes to show that it's never good to simply take any idea for granted, no matter how committed you are to a particular belief or group. Get out there and get your hands dirty.

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