From the White-PillBox: Part 27. Achilles Heel edition 1
The State's Achilles Heels, starting with Intellectual Property.
This is the first in a sub-series of the White Pill essays. They will examine some of the State’s obvious (and not-so-obvious) vulnerabilities.
Like any bully, the State can be formidable. But it has numerous Achilles Heels. These are attributes or outcomes that are pressure points…weak links in the State apparatus. This makes every one of them a solid White Pill.
Most of them will be familiar to freedom advocates, but one in particular (Intellectual Property) merits special attention. It will be the entire focus of this installment; upcoming essays will cover the White Pills of other State Achilles Heels.
Intellectual property (IP)
Intellectual property is an important component in the growth and power of the State, especially in the U.S. But by its nature it is an obscure area of law. Moreover, its unfortunate use of the term “property” has often led liberty thinkers astray, even to the point of enthusiastically supporting it. Its moral and practical failings are poorly understood. Perhaps most obscure is exactly how it is an Achilles Heel of the State.
For these reasons it is necessary to devote a good portion of this essay to clarifying the essentials of IP, and how it is so harmful. We can then more clearly see the associated White Pill 1.
What is IP?
IP is the use of State law to grant monopoly privileges in creative works. As we know, monopolies tend to yield reduced supply and lower quality. IP does this with ideas (e.g., inventions, formulas, artistic works).
IP claims to defend property rights in new ideas. Let’s examine both property rights, and the concept of ideas.
Property rights: the physical world and how resources are allocated
The first important resource is ourselves. Libertarianism favors self-ownership, wherein every person is assumed to own their body.
Secondly, there are resources in the real world; we need resources to live. But since they are not in infinite supply, conflict is possible. We call “scarce resources” anything which can only be possessed or used by one person at a time, that is, over which there can be a conflict 2.
To help avoid conflict, we identify the owner of a resource. This is done by asking two questions: who got it first, and who justly acquired it thereafter 3.
Those questions are actually all we need 4. They establish who has the property right in the scarce resource. We don’t need the additional question, does this thing qualify as property? So long as it is a conflictable resource, the two questions suffice. Conversely, super-abundant things (for which there can be no conflict), do not need to be classified as property.
The term “property” is commonly misused to describe an object (“that apple is my/your property”). But it actually describes a relationship between a person and a scarce resource (“I/you have a property right in that apple”).
Ideas
In the context of IP, an idea is a pattern, not a physical object. It can be a song, a poem, a novel, a movie, an invention, a method of doing tasks. The important distinction from physical objects is that ideas are universals. A novel, for example, is a particular arrangement of words. That pattern is not physical; it is a universal. It is a template for how physical objects can be arranged. Once arranged that way, the resulting object embodies the pattern. In our example, the object would be a particular physical book that represents an instance of the novel.
Once a pattern is embodied in an object, we can say the pattern is an attribute of the physical object. This emphasizes how the pattern (the idea) is not itself an object.
Any number of people can replicate the pattern without infringing on anyone else. So the idea cannot be conflictable. But again, a particular instance of the novel (a single book) is conflictable: only one person can own it or use it at a time.
This is why it is necessary to identify a property right in a particular, specific book, but not a property right in the idea (the universal of the word pattern we call the novel).
The IP error
IP skips the simple question of who owns resources, and misdirects us with the claim that ideas are property. Indeed, it co-opts the very term “property” to imply there are classes of property, and then calls one of them “intellectual”. But all this is a distraction because, as indicated above, “property” simply describes a relationship between a person and a scarce resource.
This clearer understanding shows why idea-ownership is a fallacy…a fallacy that is IP’s basic premise. There is no need to have a property right in an idea because there is no conflict possible.
What we need in order to act
Human action requires two distinct elements: physical resources (used to act with) and knowledge (to guide our actions). Physical resources are conflictable; knowledge (ideas) is not 5.
The purpose of property norms is to avoid conflict. So property rights are necessary and meaningful for physical scarce resources (because there can be conflict). Conversely, property rights are unnecessary and meaningless for ideas (two people or two trillion can use the same idea without conflict).
This makes IP laws perverse. IP law attempts to treat infinitely replicable ideas as if they were scarce resources…to basically impose scarcity on that which is already free and available to everyone 6.
The State, as usual, violating consent
Consent is at the heart of property rights. What you do with your property is governed by your consent.
IP law puts an obligation on your property without consent. Copyright holders can impede the use of your own printer and paper; a patent holder can impede the use of your own production resources to make a certain device.
Claiming there would be no creativity without IP
IP alleges it encourages innovation. Once again, this is a distraction. It side-steps the moral issue at the heart of property: who owns a resource. And we can already establish the owners of physical resources (by asking the questions stated earlier), so there is no problem needing to be solved.
But even its claim to encourage innovation fails in reality: there has never been a convincing empirical case made in favor of IP. Not one 7.
Related to this are the concerns over how creativity would happen if innovators did not have monopoly privileges. But the purpose of law is to resolve disputes, not to stimulate innovation (or, for that matter, to achieve any goal other than justice). It is the innovator’s concern as to how he can profit from his creative work (and indeed this is a highly interesting academic discussion in itself).
In the end, IP law only accomplishes one thing: damage.
The damage of IP
IP manages to attack both key elements of human action: physical resources and knowledge. This is one reason it is so insidious.
Damage by undermining property rights
IP law can claim all it wants that it applies to ideas. But this is impossible. The force of law can only be applied against physical things, not against abstracts like ideas.
So in actual practice, IP can only undermine actual property rights. In effect it takes an already-owned resource of the victim, and gives a control right over that resource to the IP holder.
For example, an owner of a copyright can use IP law against someone who copied their work. How? By penalizing the person’s property as punishment. Or, the owner of a patented device can use IP law against a competitor. How? By preventing them from using their own physical property to make the device.
Damage by undermining knowledge (ideas)
As humans we are hampered by IP wherever it touches us, because the source of progress (ideas) is restricted 8. In fact, the collective damage done to humanity by IP law is incalculable.
The absurdity of IP
Even intuitively we can see that IP is absurd - both in its premise that ideas are ownable, and in its claim to encourage innovation.
The absurdity of owning ideas
We hear people casually say, “I own my ideas”; “he stole my idea”.
But the term “idea” is imprecise when used this way. Instead, recall that ideas are abstracts…universals. Using these more precise words reveals the absurdity:
“I own my abstracts”, “I own my universals”, “he stole my universal”.
The absurd claim that IP encourages innovation
In reality there is very little evidence of this, and far better evidence that IP hampers innovation. And since knowledge is key to man’s progress, by stifling innovation IP is a direct cause of human suffering.
If we do a simple comparison, we see why IP necessarily impedes innovation:
Creativity with IP
In our world with IP, ask yourself what inputs creators have at their disposal. What musical sources may a songwriter use to compose a song? What previous techniques and designs may an inventor use to devise something new?
They may use anything in the public domain (i.e., not restricted by IP), plus the IP they own or license.
What inputs are they not permitted to use? Literally all ideas protected under IP, minus the few they own or license. In practice this means almost the entire universe of IP-restricted ideas is off-limits to all creators.
Creativity without IP
Now ask yourself what inputs creators have at their disposal in a society free of IP laws.
Simply put: all creators have all ideas ever conceived by man. No ideas are off limits.
The potential for innovation absent IP should be obvious 9.
The absurdity of fairness
The gut reaction to the free use of ideas is commonly this: It’s not fair. As soon as I come up with a new idea, anyone can use it and profit from it.
This is a myopic view of what is actually happening, namely:
Every creator’s tool kit (including yours), contains every idea in existence.
IP deprives their tool kits of precisely the ideas that accelerate innovation: the newest and most innovative.
If we are arguing from morality, it is IP that is unfair: property ownership is undermined.
If we are arguing as pragmatists, it is IP that impedes creativity and creates human suffering.
But IP is a big benefit - for the State
The State needs handmaidens to do a big part of its dirty work. Special interest groups work hand in hand with the State in a twisted partnership. From the State, interest groups receive favored privileges. From interest groups, the State gets the tools that support it (weapons, financing, the image of legitimacy, free advertising, control of information, public indoctrination).
Corporate interests comprise the majority of these groups. The stronger they are, the more secure is the State.
Intellectual Property is a significant reason corporations grow, by using the force of law to stifle competition. The biggest conglomerates have entire divisions devoted to IP…resources unavailable to smaller or potential competitors. This permits large corporations to grow ever larger, which in turn only increases their influence with the State.
But it is also an Achilles Heel (the White Pill)
Expanded human choices are a key aspect of the emergence of a stateless society. The more needs we satisfy without the State, the less relevant it becomes, until it is disregarded into obscurity.
This makes expanded choices a danger to the State 10. The State wants choices limited. Which is exactly what IP does. IP makes the path to liberty harder by hampering innovation and creativity.
But the State has a problem.
People always gravitate toward expanded and better choices. This is a powerful and ever-present incentive to innovation.
So a highly fortuitous dynamic exists.
IP and innovation are, quite literally, mortal enemies: IP kills innovation, while innovation (at least certain kinds) can make IP a relic 11.
That makes innovation a natural Achilles Heel of IP…and the State.
We can largely credit anarchist scholarly thought with identifying the flaws in the arguments favoring IP. Even the term “flaws” does not do justice to the weak case for IP. Indeed, there is no compelling rationale whatsoever for IP.
It helps to be clear on the meaning of “scarce” in this context. Commonly, the term means “in short supply”. But here, “scarce” means that a resource is limited regarding its use, e.g., it can only be used in one way at a given time, or by only one person at a given time. Apples, for example, are a scarce resource regardless of whether they are abundant or in short supply.
Property can be acquired as a gift, by agreement, or as restitution (e.g., after harming someone you may owe them damages, so some of your property is transferred as compensation).
Any form of property ownership must deal with the possibility of conflict. The “first use” form described here has undeniable advantages over all others: it is elegant and simple; it is the most conducive to resolving disputes; it yields by far the greatest and broadest human stability, prosperity and goodwill; it is exactly the form that emerges naturally in the real world (both in conditions free of a State, and even in certain contexts with a State).
Knowledge underpins human progress. So it is fortunate indeed that ideas can replicate endlessly across space and time at no cost. Those ideas that make life better can spread and benefit everyone. For example, humanity’s condition improved significantly once we conceived of making clothing, discovered uses for fire; designed a wheel; built shelters, planted crops, etc.
Ironically, the free market seeks the opposite. It strives for abundance: seeking non-scarcity in a world of scarce things.
IP did not even originate from any utilitarian claim that it would improve humanity overall; it was an effort to grant monopoly privileges.
The end of IP would bring an explosion of creativity and invention. We can scarcely imagine the creations we could have: in medicine, inventions, software, engineering, art, music, movies, novels, etc. The astounding progress of the last two centuries (despite being hampered by IP), would accelerate exponentially.
This also undermines the claim that no one would have an incentive to create without IP protection. People would have every incentive to create, having near infinite combinations of inputs with which to innovate. And the explosion of new creations means more first-creators…more opportunity to build a reputation as an innovator.
And happily, a danger to its favored handmaidens…the major media, the medical establishment, the financial industry, the weapons manufacturers.
Just a few examples of this: the Internet itself is making copyright enforcement nearly impossible; 3D printing, while still in its infancy, holds the potential of severely undermining the patent system.