The Labor Theory of IP?
Since labor alone doesn’t create value if it’s not used to produce what people choose to subjectively value [verb], then we might likewise ask how can labor alone create a property claim as IP advocates often seem to imply?
It can’t.
Property is a claim to that which is scarce. It doesn’t matter how much work you did to produce something — once it’s created as an item of information, it’s not naturally scarce anymore with todays information transfer/duplication technology. In similar manner, flailing my arms about as “labor” doesn’t create a claim to the not-particularly scarce air that I pass through. This despite calories being expended and despite breathing being vitally important and “valued” — because the air is, for the most part, not scarce.
J. Neil Schulman, who advocates his own version of IP that he calls “logorights“, responded on Facebook that:
“Value does not derive from labor; existence as a newly created real object does.”
To clarify, Neil regards a created, distinct, identifiable item of information as a “thing”. I’m mostly not inclined to quibble with him about that because what matters is that it’s not a naturally scarce thing.
Neil continued:
“…a new and unique thing which can be distinguished from all other things is scarce by virtue of its uniqueness.”
Not quite! With current information duplication/transfer technology, an item of information is pretty much ONLY (naturally) scarce PRIOR to the point of creation (leaving aside, for purposes of discussion, closely guarded secrets).
But Neil disagrees with my characterization of items of information as not particularly scarce.
“That its scarceness is horizontal rather than vertical is beside the point; all property rights are with respect to things that have ways in which they are unbounded.”
Above, Neil is elaborating on his already stated notion that the uniqueness of a particular item of information is a type of scarcity. That notion, though, conflates the concepts “distinct” and “scarce”. The atmosphere and the ocean are (at the scale of an individual, anyway, leaving aside large scale issues for purposes of this example) not scarce. They are, however, distinct. Distinctness is not scarcity. That the air is not the ocean does not mean I can flail my arms about to create a claim to the not-particularly scarce air around me that would allow me to charge you a toll for passing through “my air”.
We can say “property” in that which is scarce matters because it serves as a metaphorical container for labor as an aspect of its scarcity.
That is, it is wrong to forcibly take a scarce item from someone who has made it theirs via their labor (or which was gifted or exchanged to them from those who had a labor-derived original claim). To take a scarce item from someone that their own or exchanged labor brought into their possession is to take their labor from them against their will — to enslave them.
After the point of creation, duplicating an item of already created information does not remove it from the enjoyment of any other possessor — because it’s not scarce. The duplicator has not stolen from or enslaved anyone. No labor has been stolen because the labor has not been “contained” in a scarce item in the first place. No property claim, in any ethical understanding of the term “property”, has been created.
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What I find troubling about your logic is that it relies on today’s information duplicating technology. When Aristotle “wrote” (however that was accomplished) _Metaphysics_, did it have more value because there was only one copy? Did it lose value because he had already disseminated some or all of its information by word of mouth? Was it even less valuable when monks started transcribing the original Greek so several copies were available or translating it into Latin? If someone paid to own an original copy of one of those transcriptions or translations was he simply paying for the monk’s time spent in transcribing and their knowledge of Greek and Latin, or were they paying for some other value? When the printing press came on the scene, were people buying a copy of _Metaphysics_ simply paying for the time of setting type and proofreading? Did the books lose further value with the invention of Xerography?
In the realm of computer software, if I hire you to write an application to manage my business, can you or I make money by selling the app or a slightly modified version of it to others (i.e., duplicating it), even though I already paid you for the time, effort and knowledge involved in writing the original code? And arguably the app also includes some of my knowledge which I transmitted to you in directing the design and development. Am I entitled to profit from your original work because I contributed to it and after all it’s “my” application now? Or are you entitled to profit “more than once” (if you will) because you can duplicate the software and sell it to other companies in the same line of business. Is it enough if we agree to these “rights” in a contract?
re: “What I find troubling about your logic is that it relies on today’s information duplicating technology.”
Good point. Allow me to clarify.
Ideas, once created, are not scarce. My references to modern information tech solely serve to emphasize that point. Those references make that point of non-scarcity more obvious and undeniable. If it seems my reasoning *depends* on that, though, then I failed to adequately communicate my views.
Brad, nice post. You wrote, “Neil regards a created, distinct, identifiable item of information as a “thing”. I’m mostly not inclined to quibble with him about that because what matters is that it’s not a naturally scarce thing.” I’ve made a similar point to others before. The Objectivist types focus on creation as a source of ownership. They do this because they have this “ontological” view of reality that leads them to just assume that any “thing” that “has value” that you “create” is owned by, well, by who else–the creator. The problem is this rests on the implicit assumption that the “thing” in question is OWNABLE. They seem to have no limit on what kinds of “ontological things” can be owned. As long as you can name it with word–form a concept to identify “it” so that “it” “exists”–well, then “it” is a “thing” that can be owned. Especially if it “has” value (nevermind the Austrian insight that nothing “has value”–valuing is demonstrated in action and is a function of how much a valuing actor demands the thing in question). So they inherently equate property rights with “things that have value”–hence their believe in reputation rights too. The problem is that our concepts can be used to identify any number of aspects about reality. We don’t change reality by forming concepts to identify it, yet Objectivsts and neo-objectivists like Schulman want to let reality be determined by our terminology, our concepts–if you can slap a word on it, it’s a “thing,” and “ownable thing”, don’t-cha-know.
Well, sure, if that “thing”–say, that “poem”–is ownable, naturally the creator is the owner. The problem is that by setting up ownership in such non-scarce things, it always reduces the scope of propert rights in scarce objects, precisely because the IP advocate descends back down into the lowly material world to enforce his ehtereal platonic rights: he wants real, physical FORCE used, against the physical body or property of the patent infringer, to extract real, tangible money damages from him, etc.
We must ask: is this “thing” a type of thing that is ownable?–before asking who its owner is. This, the Objectivists do not do. They assume everything is ownable. If everything is ownable, scarce resources are not, and we would all die, since we are not ghosts.
For more on this see my various posts: Intellectual Property and the Structure of Human Action http://blog.mises.org/archives/011383.asp ; IP: The Objectivists Strike Back! http://blog.mises.org/archives/011327.asp ; Kinsella v. Schulman on Logorights and IP http://blog.mises.org/archives/011323.asp ; IP and Artificial Scarcity http://blog.mises.org/archives/011151.asp ; Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading http://blog.mises.org/archives/005098.asp
It’s one reason libertarians are changing their minds about IP in growing numbers: Have You Changed Your Mind About Intellectual Property? http://blog.mises.org/archives/011288.asp