Tuesday, April 04, 2006

Are Ideas "Property?"

During the eBay v. MercExchange Supreme Court hearing of last week, Justice Scalia remarked, "We're talking about a property right here and a property owner has the right to exclude others from using his property."

But are we really talking about a property right, when we are talking about government-granted monopolies over ideas? Thomas Jefferson would certainly have disagreed with Scalia, but I wanted to further explain why this is such an absurd notion.

Some intellectuals have defined "property" as "the fruits of labor." Under this definition, ideas might qualify as property (as long as one ignores the 'Eureka' theory of ideas, in which case ideas are not the pure fruit of one's labor). But this definition is insufficient, both historically and philosophically.

Historically, property rights only arise in the presence of scarcity and conflict. For example, during our ancestors' hunter-gatherer days, there was no concept of land as a property right. This is largely because land was not scarce, and there was little conflict over its use. As populations grew, different groups crowded each other for the best hunting grounds, and conflict due to scarcity occurred -- but these conflicts were communal, and were usually resolved with tribal battles or other types of violence. The concept of parcels of land owned by individuals did not arise until the introduction of agriculture, which gave rise to a new type of scarcity and conflict: competition for the most productive plots of land. The same is true of other types of property throughout history: scarcity and conflict resolution plays a key role in definition of property rights.

It extends naturally, then, that when there is no scarcity of a certain resource, there cannot be any conflict over that resource's use. And, since there is no conflict, property laws for that resource are unnecessary. No wars were fought in pre-industrial times over ownership of the air we breath, and no laws were needed to regulate atmospheric property rights. This is because air was once considered to be a nearly infinite resource.

Are ideas scarce? Can the fact that I once imagined and invented a method for folding a paper into the shape of a peanut somehow cause you not to think of the same (or very similar) idea? Of course not. Ideas are not exclusive, are not scarce, and conflict over their use does not naturally occur. It is only when governments grant exclusive rights to the use of an idea (via patents) that such conflict can arise, only through government regulation can scarcity of ideas be born. Ideas are not property.

But even worse, idea monopolies introduce a way for unconnected individuals to magically impede on the true property rights of one another. If I had been granted a patent on my hypothetical peanut-shaped paper folding technique, I would have the legal authority to restrict you from engaging in folding your paper, with your hands and the exertion of your labor, into the patented peanut shape. My government-invented paper-peanut patent 'property' right over an intangible idea would trespass on your natural physical property right over your hands, your energy, and your tangible paper. Such a conflict between imaginary idea property and real physical property is inevitable, and it is made worse by the fact that my idea monopoly extends not only against you, but against every single living soul who is subject to the patent regime's enforcement.

So, yes, Justice Scalia, we are talking about a property right here: we're talking about every individual's right to create using their own property in any way they see fit, as nature intended. We're talking about the government unreasonably interfering with that essential, natural right. And we're talking about how that is a bad deal for inventors, consumers, businesses, and society as a whole.

(for an expansion on these ideas, see Against Intellectual Property by Stephan Kinsella)


Blogger Jackson Lenford said...

Some would dismiss these arguments by claiming that our patent system is not supposed to grant monopolies over ideas, but only over their embodiment in some invention.

The answer to that is that we have seen, time and time again, that overly broad patents do carve out entire sections of the "idea-scape," without referring back to any particular embodiment of the invention. Additionally, patents granted on algorithms (software) and business methods are never physically embodied, but exist only as ideas, even when implemented.

The truth, if we cared to admit it, is that our intellectual property regime does grant monopolies over ideas, not as the exception, but as the rule.

10:03 AM  
Anonymous Anonymous said...

A nice analysis that extends from Kinsella's essay can be found at Dionidium. The author there makes the point that government's role is to protect the integrity of property, not the market value (which is the opposite of how patents work).

3:32 PM  
Blogger Maciej Miasik said...

Good post. Translated to Polish and published here:


You are becoming a regular poster on my blog :)

2:21 PM  
Blogger Steve R. said...

Perplexing logic. First, I am on your side that abstract ideas cannot be patented and hence do not possess a "property right".

My point of concern is the use of a "real property" property right as an analogy. You wrote: "Historically, property rights only arise in the presence of scarcity and conflict. For example, during our ancestors' hunter-gatherer days, there was no concept of land as a property right. This is largely because land was not scarce, and there was little conflict over its use."

While this statement loosely true, it leaves out a crucially important concept. A property right does NOT arise out of scarcity.

The "correct" logical process is that scarcity creates VALUE, this value is then perceived by some entity (an individual, tribe, king) who then asserts it belongs to them because they control it or otherwise seize it. Possession over a period of time along with the invention of law, resulted in the initial concept of "property rights".

The abusuridy of patenting ideas was an unintended consequence of an article that appeared in Discover Magazine. Evidently a person obtained a patent for a faster than light drive. It didn't work. Suppose now that someone does get an FTL drive to work, is that inventor and all of society going to have to pay someone for an idea that failed?????

1:57 PM  
Blogger Steve R. said...

Oops my post above was in the wrong place, I re-wrote and posted at http://www.techliberation.com/archives/038535.php

Also it turns out that the Discover article was on antigravity, not FTL.
Discover, April 2006, Whatever happened to Antigravity Research?

3:52 PM  

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