The Abolition of Man Through Intellectual Property - Grove City

31 Pages·2012·0.25 MB·English

by  Kevin Rahbar

GROVE CITY COLLEGE
The Abolition of Man
Through Intellectual
Property
Kevin Rahbar

Kevin Rahbar
1/29/2012

This paper explores the concept of owning ideas, intellectual property, the problems it causes in
the market place, the place for intellectual property in Christendom, and the connection between
intellectual property, liberty, and the human personality.
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Introduction
―He who receives an idea from me, receives instruction himself without lessening
mine; as he who lights his taper at mine, receives light without darkening me. Inventions
then cannot, in nature, be a subject of property,‖ spoke Thomas Jefferson. It appears as
though Jefferson was an advocate for the free exchange of ideas. Ideas can be spread but
often there are barriers to the free use of an idea. Information, while readily available, can
sometimes not be readily used. The institution of intellectual property has a long history
and development, but the present author questions the legitimacy of the present system
and will join the conversation surrounding this controversial subject matter. Intellectual
property has been a subject of immense debate in politics, economics, history, ethics,
philosophy, and legal studies. This paper will discuss the nature of ideas, the nature of
property and intellectual property. We will also discuss the effects of intellectual
property, the compatibility of intellectual property with a Christian world view, and
defend the importance of the free spread of ideas. Intellectual property gives ownership
over non-scarce intangible goods resulting in the implicit ownership of information in the
minds of people which damages the extent of the market; this damage obfuscates the
development of the human person because it stymies the creativity that is essential to man
being an image-bearer of God.
What are ideas?
The most fundamental question that must be answered in our inquiry into
intellectual property rights is: What are ideas? On both an ideological level and on a
metaphysical level we need to determine the nature of ideas. Are ideas ends? Are ideas
means? Are ideas in their own category?
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Any definition of an idea that can or is used for an‖ idea‖ does not permit it to be
ownable. An idea could most simply be defined as whatever is before the mind as one
thinks. Ideas can represent images, concepts or a variety of other things. To possess an
ideas is to be engaged in thinking which has been argued to be a fundamental category of
being. Humans have the ability to create worlds, structures, images, literature, and
solutions all in our minds. It is a direct reflection of the imago dei to be able to engage in
a thinking process. In some ways we are even able to re-create and re-live events that
have happened in the past. In other senses we are able to prepare in advance for what may
happen.
Plato was the father of discussing the nature of an idea, and opened up the
discussion for the importance of ideas as it relates to metaphysics and epistemology. For
Plato believed ideas are immutable, eternal, and perfect. Descartes believed ideas were an
image or representation, but he did not think that these necessarily needed to exist ―in the
mind.‖ Descartes said that, ―Some of my thoughts are like images of things, and it is to
these alone that the name 'idea' properly belongs." He sometimes maintained that ideas
were innate‖ (Descartes 1993, pp. 196-198). Locke differed from Plato in his conception
of an idea. In Locke‘s Essay Concerning Human Understanding, Locke defines an
idea as:
[T]hat term which, I think, serves best to stand for whatsoever is the object of the
understanding when a man thinks, I have used it to express whatever is meant by
phantasm, notion, species, or whatever it is which the mind can be employed
about in thinking; and I could not avoid frequently using it.
Following Locke, Hume and Kant continued the discussion. Hume limited an idea to
ambiguous mental constructions of perceptions, which he called ―impressions‖ (The
Encyclopedia of Philosophy 1973, pp. 74-90). Kant defined an idea against a concept
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(ibid. 973, pp. 74-90). ―Regulator ideas" are ideals that we move toward, but never fully
accomplish. For example, liberty is an idea, and not a concept. G.F. Stout and J.M.
Baldwin, in the Dictionary of Philosophy and Psychology1, define idea as "the
reproduction with a more or less adequate image, of an object not actually present to the
senses." It is clear to see that none of these definitions implicitly or explicitly imply that
an idea is ownable
Are ideas means? In order for an idea to be a means, it must first be a good. Carl
Menger provides us with four conditions that make a good. Let us examine if Menger‘s
conditions line up with an idea being a mean. Menger (2007, p. 52) lists his four
conditions for a good obtaining good-character:
1. A human need.
2. Such properties as render the thing capable of being brought into a causal
connection with the satisfaction of this need.
3. Human knowledge of this causal connection.
4. Command of the thing sufficient to direct it to the satisfaction of the need.
Menger goes on to explain that only if all four prerequisites are present can a thing
become a good. Most helpful for our discussion of the issue of intellectual property rights
is his fourth condition. Granted, Menger explicitly communicates that all four conditions
must be present at the same time, the fourth condition is adequate to remove the
possibility of an idea being a means; ideas are not directly serviceable. Under any of the
definitions we have discussed so far of an idea, would any of them imply direct
satisfaction of the end desired? For example, does having the idea of a new cell phone

1 See http://psychclassics.yorku.ca/Baldwin/Dictionary/
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design give one the ability to make phone calls? Does an idea of a new type of screen
enable the viewing of images on that screen? Clearly, the answers are no.2
Mises (1998, p. 93) argues in the beginning of his well-regarded work, Human
Action, the issue of ends and means stating,
A thing becomes a means when human reason plans to employ it for the
attainment of some end and human action really employs it for this purpose.
Thinking man sees the serviceableness of things, i.e., their ability to minister to
his ends, and acting man makes them means. It is of primary importance to
realize that parts of the external world become means only through the operation
of the human mind and is offshoot, human action… It is human meaning and
action which transform them into means.
Ideas are not sufficient to be means because the existence of the idea does not de facto
mean that the end can be satisfied. Means can only become means through human action,
and we will later see that the possession of an idea is not labor. Goods must be directly
serviceable and means are only able to satisfy ends indirectly, but the prerequisites for
human action are ideas, means, and ends. An idea alone will never satisfy an end. More
could be said on the issue of an idea being an end, but we will refrain from further
argumentation and simply posit that ideas are not means.
Property, Intellectual Property, and Property Rights
The next issue we must address is the question of what is intellectual property?
However, in order to address the issue of intellectual property we need to determine what
property is. To answer this question simply: property is anything that we can come to
own.3 However, what can be property is a subject of debate. Locke contributed most
notably to the creation argument that makes something property by stating it is done by

2 It might be objected that the idea could be an end. In that case you would have to have an idea about an
idea and then means to apply your idea about your idea to arrive at your end. This leads to some fairly
obvious logical issues. Additionally, Mises deal with creative acts of genius not being products of labor
which is discussed later in this paper.
3See Boudewijn Bouckaert, ―What is Property?‖ in ―Symposium: Intellectual Property,‖ Harvard Journal of
Law & Public Policy 13, no. 3 (Summer 1990) for a more detailed discussion on what property is.
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―mixing your labor with an object, or clearing and cultivating virgin land‖ (Locke 1690).
Locke also saw right of self-ownership as necessary for liberty. Ownership in ourselves is
the foundation for ownership of alienable objects because they become assimilated to our
bodies.4 There is not a large debate about the ownership of one‘s own body because ―self-
ownership‖ has not been a problematic or controversial issue in the history of economic
thought. The ownership of tangible goods has not historically been an issue is Christian
thought or libertarian convention, but there has been and continues to be a discussion on
the eligibility of ownership of intangible goods.5
Advocates for intellectual property law often use a Lockean-style natural law
argument which states that creations of the mind are due equal protection under the law
as tangible property (Kinsella 1998, p. 3). This argument does not see that intangible
property is not naturally ―scarce‖ like tangible property.6 In Locke‘s view the state of
nature contains natural property and therefore natural property which is economically
scarce. Ownership is allocated to the first person that ―mixes his labor‖ with resources
and property to solve the potential conflict that could happen from two people trying to
use something. However, ―since use of another's idea does not deprive him of its use, no
conflict over its use is possible, which undermines the natural-law justification for
property rights in IP.‖7, 8 As Professor Tom Bell (Torremans 2007, p.54) writes, Locke‘s

4 See (Wheeler 1980, p. 171)
5 See (Khan 2008) and (Boldrin and Levine 2008, pp.48-67) for additional discussion on the history of
intellecual property
6 See (Rothbard 2004, p. 173) for a discussion on radio waves. Rothbard was a head of his time but the
discussion needs to be updated

7http://web.archive.org/web/20061213004018/ and
http:/www.fedsoc.org/Publications/practicegroupnewsletters/intellectualproperty/legitimate-ipv3i3.htm
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…labor-desert justification of property gives an author clear title only to the
particular tangible copy in which she fixes her expression–not to some intangible
plat in the noumenal realm of ideas. Locke himself did not try to justify
intangible property. He appears, in fact, to have viewed copyright as merely a
policy tool for promoting the public good. Modern commentators who would
venture so far beyond the boundaries of Locke‘s thought and into the abstractions
of intellectual property thus ought to leave his name behind.
More succinctly, copyright contradicts Locke‘s justification of property.9 Copyright
violates the very rights that Locke defended by silencing our voices, shackling our hands,
and furthering ignorance. Locke did not consider his theory of property extending to
copyrights and patents, stating in his Second Treatise of Civil Government,
―The labour that was mine, removing them out of that common state they were in,
hath fixed my property in them.‖ The purpose of borders of owned things is to distinguish
them from things one does not own. Labor does this by establishing a causal connection
between the homesteader and the thing.
In addition to answering the question of property, we must answer the issue of
what a property right is. The New Palgrave Dictionary of Economics defines property
rights as a ―socially enforced right to select use of an economic good.‖10 As Hoppe notes
in The Economics and Ethics of Private Property, ―According to this understanding of
private property, property ownership means the exclusive control of a particular person
over specific physical objects and spaces‖ (Hoppe n.d., p. 6). Is intellectual property be a
socially enforceable right?

8 Ideas can be infinitely instantiated and therefore the use of one‘s idea never interferes with another‘s
instantiation of an idea.
9 Locke described legislation authorizing the Stationers‘ Company monopoly on printing—the nearest thing
to a Copyright Act in his day—as a ―manifest . . . invasion of the trade, liberty, and property of the
subject.‖ Even today, by invoking government power a copyright holder can impose prior restraint, fines,
imprisonment, and confiscation on those engaged in peaceful expression and the quiet enjoyment of
physical property.
10 See Property rights in The New Palgrave Dictionary of Economics
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To begin, we must define what intellectual property is and come to an
understanding of our terms. The scope of this paper will only deal with intellectual
property in so far as it is used to refer to copyrights and patents. There are various
definitions for intellectual property rights. Some have called it the construction of a
scarce resource from knowledge or information (May and Sell 2006, p. 5). Other have
called it the intangible items that typically produce or creates products, processes,
expressions, marks or nonpublic information (Sun and Baez 2009, p. 1). It has also been
expressed as rights in ideal objects, which are distinguished from the material substrata in
which they are instantiated (Kinsella 2008, p. 9). Yet others claim it is a government
issued monopoly (Boldrin and Levine 2008).
A copyright is a right given to authors of ―original works,‖11 such as books
articles, movies and computer programs. Copyrights give exclusive right to perform or
present the work publicly; it protects form or expression, not the underlying ideas
themselves (Kinsella, 2008, p. 10). Copyrights have been used for literary works and for
media, including music and movies (Boldrin & Levine, 2008, p. 22). Copyrights deals
with the written expression of ideas once they are reduced to a tangible form (Peloso,
2003, p. 35). A patent is a property right in inventions that performs a useful function. It
grants the inventor a limited monopoly on manufacture, use or sale of the invention
(Kinsella, 2008, pp. 10-11). Patents12 protect inventions and the laws are designed to

11 We will later explore the nonsensical nature of this distinction.
12 Patents, by definition are aimed to clock competition (Boldrin and Levine 2008, p. 77). A myriad of
patents are created to keep competitors from creating anything that even remotely resembles their product
or service. Patents come about for defensive reasons resulting in patent lawyer salaries and patent office
fees. The large overhead would not be needed if there were no patents (Kinsella 2008). For a list of
ridiculous patents see (Kinsella 2008) appendix. The defensive patent situation is very similar to the cold
war where weapons were created for ―defensive‖ purposes, but never used. In other words defensive
patents are a creation of the legislation (Boldrin and Levine 2008, p. 74).
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encourage technology advances and new ideas (Peloso 2003, p. 35). The laws gives the
inventor a monopoly on his invention for a limited period of time in the exchange for
sharing the technology when the patent expires.
One cannot get very far in the intellectual property literature without encountering
Ayn Rand‘s advocacy for intellectual property rights. For Rand (1986, p. 141),
The government does not grant a patent or copyright, in the sense of a gift,
privilege, or favor; the government merely secures it that is the government
certifies the origination of an idea and protects its owner‘s exclusive right of use
and disposal.
Exclusive right and disposal are very powerful terms if we are going to take Rand‘s
conjecture to its logical extent. We will explore the ramifications of this type of
proposition as we proceed with our discussion. However, we need to address where rights
are derived from.
Natural rights were pioneered by philosophers and political scientists13 and are
argued to be universal and inalienable. These rights do not depend on any religious,
ideological, cultural or traditional understanding. As a result these rights can be adopted
by all people. The Stoics pioneered natural law, followed by the Catholic thinkers, the
Reformers14, and most recently the Enlightenment. Most notably and widely recognized
has been John Locke‘s additions to the historical dialogue on natural rights. Locke

13 John Locke, Thomas Hobbes, Thomas Jefferson, Thomas Paine, Samuel P. Huntington, G.E. Moore,
Hugh Gibbons, Ayn Rand, Murray Rothbard, and Robert Nozick.
14 The reformer, Luther (1523), declared:
Furthermore, every man is responsible for his own faith, and he must see it for himself that he
believes rightly. As little as another can go to hell or heaven for me, so little can he believe or
disbelieve for me; and as little as he can open or shut heaven or hell for me, so little can he drive
me to faith or unbelief. Since, then, belief or unbelief is a matter of every one's conscience, and
since this is no lessening of the secular power, the latter should be content and attend to its own
affairs and permit men to believe one thing or another, as they are able and willing, and constrain
no one by force.
In other words, the state should coerce beliefs systems like religious faith.
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claimed that natural rights were, ―life, liberty, and estate (property).‖ Lock believed that
the right to life15 means that everyone is entitled to live once they are created. Liberty
means that people are free to do what-so-ever they please, provided it does not conflict
with the right to life, and the estate or property right means that people are entitled to own
what they homestead or gain though exchange provided that it does not conflict with the
right of life or liberty. We will later explore if Locke‘s claims line up with intellectual
property rights. In the libertarian tradition the liberal tradition of natural rights has been
continued by most recently by Rand16and Rothbard.17 and Natural rights proponents have
claimed that man has ownership over this life and ergo his property because of the use of
the individuals time, which is an extension of his life, that he has put into the property.

15 Rothbard (2001, p. 1311) Egalitarianism is, therefore, a literally senseless social philosophy. Its only
meaningful formulation is the goal of ―equality of liberty‖—formulated by Herbert Spencer in his famous
Law of Equal Freedom: ―Every man has freedom to do all he wills, provided he infringes not the equal
freedom of any other man.‖ This goal does not attempt to make every individual‘s total condition equal—
an absolutely impossible task; instead, it advocates liberty—a condition of absence of coercion over person
and property for every man. This goal has sometimes been phrased as ―equality before the law,‖ or
―equality of rights.‖ Yet both formulations are ambiguous and misleading. The former could be taken to
mean equality of slavery as well as liberty and has, in fact, been so narrowed down in recent years as to be
Yet even this formulation of equality has many flaws and could profitably be discarded. In the first place, it
opens the door for ambiguity and for egalitarianism. In the second place, the term ―equality‖ connotes
measurable identity with a fixed, extensive unit. ―Equal length‖ means identity of measurement with an
objectively determinable unit. In the study of human action, whether in praxeology or social philosophy,
there is no such quantitative unit, and hence there can be no such ―equality.‖ Far better to say that ―each
man should have X‖ than to say that ―all men should be equal in X.‖ If someone wants to urge every man
to buy a car, he formulates his goal in that way—―Every man should buy a car‖—rather than in such terms
as: ―All men should have equality in car buying.‖ The use of the term ―equality‖ is awkward as well as
misleading. And finally, as Clara Dixon Davidson pointed out so cogently many years ago, Spencer‘s Law
of Equal Freedom is redundant. For if every man has freedom to do all that he wills, it follows from this
very premise that no man‘s freedom has been infringed or invaded. The whole second clause of the law
after ―wills‖ is redundant and unnecessary. Since the formulation of Spencer‘s Law, opponents of Spencer
have used the qualifying clause to drive holes into the libertarian philosophy. Yet all this time they were
hitting at an encumbrance, not at the essence of the law. The concept of ―equality‖ has no rightful place in
the ―Law of Equal Freedom,‖ being replaceable by the logical quantifier ―every.‖ The ―Law of Equal
Freedom‖ could well be renamed ―The Law of Total Freedom.‖
16 See http://aynrandlexicon.com/lexicon/individual_rights.html
17 See (Rothbard 1998)