Re: Intellectual property

Pat Fallon (
Sun, 23 Mar 1997 15:06:07 -0500

The thread on intellectual property is getting down to the "nuts and bolts"
of whether the concept of property is properly applied to these 'ideal
objects'. I thought that the comments of some past writers on this subject
might be of interest to the list. Here's an article by the anarchist writer
Benjamin Tucker which raises some of the same issues.
Pat Fallon


by Benjamin Tucker

The laws of Patent and Copyright are the means by which the State, that
greatest of criminal and tyranical monopolies, grants special monopolistic
privileges to a few at the expense of the many by protecting inventors and
authors against competition for a period long enough to enable them to
extort from the people a reward enormously in excess of the labour measure
of their services. The abolition of these monopolies would fill their
beneficiaries with a wholesome fear of competition which would cause them to
be satisfied with pay for their services equal to that which other labourers
get for theirs, and to secure it by placing their products and works on the
market at the outset at prices so low that their lines of business would be
no more tempting to competitors than any other lines.

The Patent and Copyright monopolies are a species of property rights which
depend for their legitimacy on the subtle notion of "property in ideas". The
defenders of such property set up an analogy between the production of
material things and the production of abstractions, and on the strength of
it declare that the manufacturer of mental products, no less than the
manufacturer of material products, is a labourer worthy of his hire. So far,
so good. But, to make out their case, they are obliged to go further, and to
claim, in violation of their own analogy, that the labourer who creates
mental products, unlike the labourer who creates material products, is
entitled to exemption from competition. Because the Lord, in his wisdom, or
the Devil, in his malice, has so arranged matters that the inventor and the
author produce naturally at a disadvantage, man, in his might, proposes to
supply the devine or diabloic deficiency by an artificial arrangement that
shall not only destroy this disadvantage, but actually give the inventor and
author an advantage that no labourer enjoys, - an advantage, moreover, which
in practice, goes, not to the inventor and the author, but to the promoter
and the publisher and the monopolist.

Convincing as the argument for property in ideas may seem at first hearing,
if you think about it long enough, you will begin to be supicious. The first
thing, perhaps, to arouse your suspicion will be the fact that none of the
champions of such property propose the punishment of those who violate it,
contenting themselves with subjecting the offenders to the risk of damage
suits, and that nearly all of them are willing that even the risk of suit
shall disappear when the proprietor has enjoyed his right for a certain
number of years. Now, if, as the French writer, Alphonse Karr, remarked,
property in ideas is a property like any other property, then its violation,
like the violation of any other property, deserves criminal punishment, and
its life, like that of any other property, should be secure in right against
the lapse of time. And, this not being claimed by the upholders of property
in ideas, the suspicion arises that such a lack of the courage of their
conviction may be due to an instinctive feeling that they are wrong.

I take it that, if it were possible, and if it had always been possible, for
an unlimited number of individuals to use to an unlimited extent and in an
unlimited number of places the same concrete things at the same time, there
never would have been any such thing as the institution of property. Under
those circumstances the idea of property would never have entered the human
mind, or, at any rate, if it had, would have been summarily dismissed as too
gross an absurdity to be seriously entertained for a moment. Had it been
possible for the concrete creation or adaptation resulting from the efforts
of a single individual to be used contemporaneously by all individuals,
including the creator or adapter, the realization, or impending realization,
of this possiblity, far from being seized upon as an excuse for a law to
prevent the use of this concrete thing without the consent of its creator or
adapter, and far from being guarded against as an injury to one, would have
been welcomed as a blessing to all,- in short, would have been viewed as a
most fortunate element in the nature of things. The raison d'etre of
property is found in the very fact that there is no such possiblity,- in the
fact that it is impossible in the nature of things for concrete objects to
be used in different places at the same time. This fact existing, no person
can remove from another's possession and take to his use another's concrete
creation without thereby depriving that other of all opportunity to use that
which he created, and for this reason it became socially necessary, since
successful society rests on individual initiative, to protect the individual
creator in the use of his concrete creations by forbidding others to use
them without his consent. In other words, it became necessary to institute
property in concrete things.

But all this happened so long ago that we of today have entirely forgotten
why it happened. In fact, it is very doubtful whether, at the time of the
institution of property, those who effected it thoroughly realized and
understood the motive of their course. Men sometimes do by instinct and
without analysis that which conforms to right reason. The institutors of
property may have been governed by circumstances inhering in the nature of
things, without realizing that, had the nature of things been the opposite,
they would not have instituted property. But, be that as it may, even
supposing that they thoroughly understood their course, we, at any rate,
have pretty nearly forgotten their understanding. And so it has come about
that we have made of property a fetish; that we consider it a sacred thing;
that we have set up the god of property on an altar as an object of
idol-worship; and that most of us are not only doing what we can to
strengthen and perpetuate his reign within the proper and original limits of
his sovereignty, but also are mistakenly endeavouring to extend his dominion
over things and under circumstances which, in their pivotal characteristic,
are precisely the opposite of those out of which his power developed.

All of which is to say, in briefer compass, that from the justice and social
necessity of property in concrete things we have erroneously assumed the
justice and social necessity of property in abstract things,- that is, of
property in ideas,- with the result of nullifying to a large and lamentable
extent that fortunate element in the nature of things, in this case not
hypothetical, but real, - namely, the immeasurably fruitful possibility of
the use of abstract things by any number of individuals in any number of
places at precisely the same time, without in the slightest degree impairing
the use thereof by any single individual. Thus we have hastily and stupidly
jumped to the conclusion that property in concrete things logically implies
property in abstract things, whereas, if we had had the care and the
keenness to accurately analyze, we should have found that the very reason
which dictates the advisability of property in abstract things denies the
advisability of property in abstract things. We see here a curious instance
of that frequent mental phenomenon, - the precise inversion of the truth by
a superficial view.

Furthermore, were the conditions the same in both cases, and concrete things
capable of use by different persons in different places at the same time,
even then, I say, the institution of property in concrete things, though
under those conditions manifestly absurd, would be infinitely less
destructive of individual opportunities, and therefore infinitely less
dangerous and detrimental to human welfare, than is the institution of
property in abstract things. For it is easy to see that, even should we
accept the rather startling hypothesis that a single ear of corn is
continually and permanently consumable, or rather inconsumable, by an
indefinite number of persons scattered over the surface of the earth, still
the legal institution of property in concrete things that would secure to
the sower of a grain of corn the exclusive use of the resultant ear would
not, in so doing, deprive other persons of the right to sow other grains of
corn and become exclusive users of their respective harvests; whereas the
legal institution of property in abstract things not only secures to the
inventor, say, of the steam engine the exclusive use of the engines which he
actually makes, but at the same time deprives all other persons of the right
to make for themselves other engines envolving any of the same ideas.
Perpetual property in ideas, then, which is the logical outcome of any
theory of property in abstract things, would, had it been in force in the
lifetime of James Watt, have made his direct heirs the owners of at least
nine-tenths of the now existing wealth of the world; and had it been in
force in the lifetime of the inventor of the Roman alphabet, nearly all the
highly civilized peoples of the earth would be today the virtual slaves of
that inventor's heirs, which is but another way of saying that, instead of
becoming highly civilized, they would have remained in the state of
semi-barbarism. It seems to me that these two statements, which in my view
are incontrovertible, are in themselves sufficient to condemn property in
ideas forever.