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)