(who owns Middle Earth?)
I have recently thought about Stephan Kinsella's core argument against intellectual property (IP) and whether it has a hole in it. I think it might not, if certain assumptions are made, but I will try to discuss my approach to the issue. This will also be a useful review of why intellectual property makes no sense.
First, let me outline Kinsella's argument:
Nature, then, contains things that are economically scarce. My use of such a thing conflicts with (excludes) your use of it, and vice versa. The function of property rights is to prevent interpersonal conflict over scarce resources, by allocating exclusive ownership of resources to specified individuals (owners).
(Against Intellectual Property, p. 20)You can read the quoted essay for more details of the argument. Here is my understanding of what Kinsella is saying:
1. Some resources in nature are scarce: they can only be used by one person at a time.
2. Sometimes two or more people will want to use the same resource and will not give way to each other. This is called "conflict over scarce resources". (The conflict can be actual, with two people arguing, or theoretical: for instance, if I see a resource and want to know whether I have a right to take it.)
3. Property rights exist (as an aspect of both law and morality) to resolve conflicts over scarce resources peacefully. NOTE: this means peacefully determining whom the resource should "belong" to. Enforcement of that decision can be violent or not.
The last point is important. Assume someone disagrees to honor a certain determination of property rights. It seems that the rights-holder has, well, a right to defend his property. With force if necessary. (Or threat of ostracism. Or personal authority.) Point is: it's moral and legal for the owner to exclude others from use of his property.
4. Resources that are not scarce don't fall under above justification for property rights. In other words: if my use of X does not conflict with your use of X, then it doesn't seem like there is any conflict. So, what exactly are property rights to X supposed to resolve? What is the justification for you to prevent me from accessing X if my doing so doesn't prevent you from accessing it?
Now, let's look at what information is. Information is a non-scarce resource. If you describe a new method for getting rid of garden gnomes or a new fantasy land, and I gain access to that information (e.g., by buying your book in a store), why should you prevent me from using that information whichever way I want with my property? (E.g., printing out instructions in my book and selling them or writing a new novel set in the same fantasy land setting.) It's not like I am preventing you from using the said information for your purposes.
One quick objection is that my activity can lure some of your potential customers away. But: therefore what? Do you own your customers? Do you own their money before they gave it to you? Certainly not. Is it a loss to the original author? Well, it is in the same sense that the fact that I cooked tonight and didn't go out was a loss to whatever restaurant I would eat out at. (And if I ate at a pizza place, that decision resulted in a loss to the deli next door.) It's a loss from the estimated potential future profits. But potential future profits were not in your possession — that's why they were "potential" and "future". So, I didn't steal anything that you actually owned.
What IP laws do, therefore, is not protect from theft of actual property. Quite the contrary: they themselves create theft (if we define "theft" more generally as "violation of property rights"; such as "borrowing without permission is theft"). If I am not allowed to use my pen, ink, and paper to write a novel in a fantasy world invented by you (or, for that matter, to distribute the book I bought from you), my property rights to my pen, ink, paper, printer, hard drive, etc., are being violated.
That is the general outline of the anti-IP argument prevalent in the libertarian circles. I will discuss my slight objection — and the potential answer to it — in the next post.