Intellectual property issues are hot among libertarians now, spurred by Jeffrey Tucker’s live blogging of Against Intellectual Monopoly and renewed interest in Stephan Kinsella’s “Against Intellectual Property.” Below I attempt to sketch a theory of copyrights and trade secrets.
The crucial term relevant to IP is “information” whose nature it is to reside in minds in the form of beliefs or knowledge (say, justified true beliefs or something of that sort) or imagination. But information can also be encoded in a material medium. A bust of Ludwig von Mises is form in matter; a human being is soul-in-body (or body-in-soul). A file containing a trade secret is encoded into a CD; again, matter arranged in some form. Note that “form” here is not “shape” but the answer to the question “What is this thing?” It is information describing the thing. Matter is the answer to the question “What is this thing made of?” The same form can inhere in multiple parcels of matter.
Forms can be of things we wouldn’t call “material objects”; thus, the physical laws of the universe as a whole (whatever it is) are one of the forms of the universe. The laws of economics are a form of society: when you ask “What is a society of human beings?,” a key part of the answer would be explanatory statements such as “division of labor makes a society more productive,” and “most societies use money which originates according to the regression theorem,” and so on; in other words, everything that describes how societies function. (Of course, many laws of economics apply to isolated individuals, as well, and moreover, the life of a society is lived entirely in its members, but the point stands: a society is informed; it is not chaotic.)
Not all forms need to be in matter or in minds. Angels and God, according to classical philosophy, are “pure forms.”
Alright, you can own a parcel of matter, because the control of it is exclusive, and so property is a way to resolve any potential disputes as to who gets to use that parcel how. A form is a universal: it exists in many, that is, it can be attached to numerous parcels of matter. But there are no free-floating forms at least in this world; there are only forms-in-matter. Therefore, you can never own a form as such; you can only own forms-in-matter. But one bust of Ludwig von Mises is not numerically identical to another bust of Mises, because the matter that is formed in Mises’s likeness is different in the two cases. Therefore, they are different objects and can have different owners.
Even more obvious is the case of ideas in people’s minds or images they form in their minds’ eyes. Even if you have first conceived of a cube, created the first cube, and showed to it to me, then the picture of a cube I have in my mind (say, I close my eyes and picture a cube, rotate it in various ways, contemplate its properties, etc.) and the knowledge of what a cube is cannot exclusively belong to you. For how can something as intimate as the contents of my own mind be your property? I may be required by moral scruples to give you credit for the invention of a cube; history may remember you as the first to come up with a cube; discussing cubes without mentioning your name may be called plagiarism in the academia, but you can’t possibly own my knowledge or the products of my imagination. Like one’s body, these things are one’s “natural property.” It’s outrageous to think, absent a rather bizarre contract of the right sort, that you can order me to stop imagining a cube. We will see later in what sense you can forbid me from teaching about cubes to other people, that is, from copying the cube-related information into another person’s mind.
A question with respect to numerical identity arises in the case of ideas, as well. Is the form-in-your-mind numerically the same as the form-in-my-mind (it may be qualitatively the same). The best we can say for this claim is that any form-in-a-mind is not encoded in matter. But, of course, they are still not identical. For example, it is possible that the form-in-your-mind can cease to exist if you forget it or if you die, but the allegedly same form-in-my-mind will still exist. You can improve upon your form, while my form will remain the same. The principle of the indiscernibility of identicals is not controversial, and so if two things have different properties, then they are not numerically identical. Again, they can for that reason have different owners.
The only claim you can have to the contents of my mind is via non-disclosure agreements (NDAs). You will tell me a secret, you say, but only if I agree not to tell anyone. That’s fine, but if the secret has been somehow revealed, including, unlawfully, by me, the new knowers are under no obligation not to use it or to reveal it further. Now Rothbard objects to this position with respect to copyrights: “no one can acquire a greater property title in something than has already been given away or sold.” (The Ethics of Liberty, 123) Therefore, I can’t, even if I spill the beans, imbue the new knowers with rights greater than those that I myself lawfully had. However, if the original owner does that himself, then full rights can be transferred. I suggest that Rothbard’s intuition here can be to an extent adjusted. It’s not that you possess a property right to the idea in my mind; it’s that we have agreed to an exchange of services. You give me something valuable — a secret. I give you something valuable in return — my silence. You own a “piece of me,” my body, such that I cannot tell anyone, by speaking or writing or doing anything whatever, what I have learned. Perhaps I even have a positive duty to take steps to ensure that the information I am privy to does not leak out. E.g., if you tell a masseur to go a little lower and to the left, then he is duty-bound to do just that. His body is temporarily under your control, the control having been paid for. Same with NDAs: I am under contractual constraints not to move my tongue and other bodily parts in such a way as to reveal the secret. But if someone finds out from me or in any other way, then he is not as duty-bound as I am, unless I, too, have bound him by an NDA.
In other words, there are two differences between ideas and material things: first, ideas are only partially scarce, in that they don’t have to be economized; second, ideas can be copied from lump of matter to lump of matter and from mind to mind, rather than moved from being owned by one person to being owned by another. Thus, creating a new instance of an idea is not moving an old one. It is rather creating something new by using the original as prototype or source.
It follows that if A sells an orange to B while withholding for himself the right to destroy the orange, call it destroyright, then if B sells the same orange to C, then he must let C know that A remains the holder of the destroyright. If C wants to annihilate the orange, then he’ll have to take it up with A. Suppose now that we were living in the Star Trek universe (heaven forfend). A notable feature of this universe is replicators: machines that can make an exact copy of a material object. Let it be that for a latinum coin you give me access to your replicator so I can copy your orange, to which you hold all the rights except the destroyright, myself. What rights should be assigned to the replicated orange? I can’t imagine anyone arguing that I ought to lack the destroyright to the new orange which I have just created. Consider the following scenario: the original orange’s pattern was copied into the replicator, and after that the original orange was eaten (let’s think of that as different from “destroying” it). The pattern persists in the replicator for six months, and everyone forgets about it. Then during a routine maintenance I discover the pattern and use it to make a brand new orange. Will it still be insisted that I do not own the destroyright to it?
If you so far agree with me, then as I have shown, the idea-in-my-mind is numerically distinct from the qualitatively-the-same-idea-in-your-mind, even though the reason why it’s distinct is that it is instantiated not in two different parcels of matter (like the oranges) but rather in two different minds. So, analogously, I possess all the rights to it, including destroyright. It is true that, unlike the replicated orange, the idea is immaterial, but what of it? The important thing is that the thing be valuable, be a good, not whether it’s material or not. Finally, everything I’ve said about destroyright seems to apply to copyright, as well.
In his Simple Rules for a Complex World Richard Epstein considers a case of “joint ownership by mistake.” Suppose that a piece of marble came under your control without your knowing that it actually belonged to someone else, Smith. You go ahead and in good faith carve a statue out of the marble. Then the misunderstanding is clarified, and both you and Smith contend for the ownership of the statue. To whom should it revert? Epstein characterizes the conflict as your labor versus Smith’s capital good. Notice how different this situation is from the one posed by IP: if I reprint a book to which Smith owns or “owns” a copyright, then both the labor and the materials are mine: the most that Smith can claim is that he supplied the form, while I supplied the matter and labor. But I have argued that there is no such thing as ownership of standalone forms. Hence the analogy fails.
It appears on reflection that those who did not formally consent to an NDA are not bound by it, even if non-disclosure agreements can be enforced as a special kind of contract. For example, suppose that you encounter a file stamped “Top secret. Authorized personnel only,” and you are not one of such personnel. Is it your duty not to read the secret file, even if the file is just lying there unattended? Is it a kind of theft? Rothbard would probably say that it would be theft, because you have no right to the information in the file. On the other hand, Rothbard also contends that in the case of bribery it is he who takes the bribe who is guilty of some crime, while he who offers the bribe is within his rights; similarly, being careless with the secrets you know may be a violation of your contract, while merely listening to or reading a secret is nothing of the sort. This is a tricky question, so what would be the Rothbard’s response? The correct response?
