Anarcho-Capitalism and Intellectual Property Right
In his blog entry on Mises.org, Stephan Kinsella, an avowed student of Murray Rothbard, states the following:
“And libertarian discussions of IP often confuse the details of the law under debate. In fact, it’s common for libertarians to conflate trademark, copyright, and patent (Murray Rothbard talked about a copyright on a mousetrap, which is an invention and therefore the subject of patents).
“Another reason is that from the beginning, the IP issue nagged at me. I was never satisfied with Ayn Rand’s justification for it. Her argument is a bizarre mixture of utilitarianism with overwrought deification of “the creator” — not the Creator up there, but Man, The Creator, who has a property right in what He Creates. Her proof that patents and copyrights are property rights is lacking.
… “But libertarianism’s initial presumption should have been that IP is invalid, not the other way around. After all, we libertarians already realize that “intellectual” rights, such as the right to a reputation protected by defamation law, are illegitimate. Why, then, would we presume that other laws, protecting intangible, intellectual rights, are valid — especially artificial rights that are solely the product of legislation, i.e., decrees of the fake-law-generating wing of a criminal state?
“But IP is widely seen as basically legitimate. Sure, there have always been criticisms of existing IP laws and policies. You can point to hundreds of obviously ridiculous patents, and hundreds of obviously outrageous abuses. There are absurd patents on ways of swinging on a swing, faster-than-light communications, and one-click purchasing; there are $100 million- and billion-dollar patent-lawsuit awards; there are millions of dollars in copyright liability imposed on consumers for sharing a few songs. Books are even banned — quite literally — in the name of copyright”.
Here’s my reply to that collectivist idea of Mr. Kinsella:
It’s disgusting to observe how Rothbard hijacked the von Mises circle and the Libertarian Party. A person who rejects intellectual property right is the worst defender, no, the worst enemy of capitalism. IP guarantees that you own the product of your own mind and that you exercise the right of ownership over your property. There are attributes of property, such as possidendi (poessession), utendi (use), fruendi (fruits), abutendi (consume), dispodendi (dispose), and even the destruction of one’s property. Now just because a person embraces anarcho-capitalism, he cannot claim that these things that made the United States the greatest country on earth do not exist. The rejection of IP is tantamount to the enshrinement of communism, wherein all property, inventions and discoveries are owned by the people or the communal state. The IP and patent law are the reason why most scientists and inventors like Nikola Tesla migrated to the United States, the only country in the 18th century that respected man’s right to life, liberty and property.
Stephan Kinsela and the people who reject IP and enshrine anarchism simply want to bring our modern civilization to primitive jungle wherein rational, objective principles, and moral philosophy are nonexistent. These people, the anarchists, are worse than the socialists or communists. They reject the idea that contradiction cannot exist. Philosophically and ideologically, they are Kantians, subjectivists and relativists. They don’t recognize the most fundamental law of logic, namely, Aristotle’s law of identity. They wanted to blast the philosophical foundation of the United States, which holds that man has the right to his life, liberty, property, and pursuit of happiness, a philosophical concept that made America the greatest country on earth. This is the reason why anarcho-capitalism is a dangerous floating abstraction which has no definite philosophical base and direction. This immoral, evil idea is anti-Man and anti-Freedom.
It’s pretty clear that Kinsella is advocating for the abolition of IP to justify Rothbard’s anti-intellectual, anti-capitalist act of plagiarism. Kinsella’s communistic/collectivist proposal has no room in our civilized world. The world has achieved phenomenal success because of this legal principle and the philosophy of Aristotle which is the basis of America’s Constitution. IP exists even in socialist countries because the free-market system compels the socialists to respect rational standards. China joined the WTO in 2001 after it vowed to recognize rational principles like IP right, property rights, among others.
Suppose you have discovered a cure for cancer and AIDS, under Mr. Kinsella’s collectivist terms everybody who did not share your hard work and who did not spend so many years of labor, money, energy and efforts could simply loot the product of your own mind. Under the terms of Mr. Kinsella, everybody has the right to force Bill Gates, Apple, and the inventors who worked hard in order to profit from the products of their mind and ability. This simply shows that anarcho-capitalism is anti-individualism and is part and parcel of collectivism. It is a prelude to everything that a rational man should be afraid of. It is anti-man and anti-capitalism at best. Kinsella’s proposal and his anarcho-capitalism will only lead to a mob rule wherein only the potential dictators and the mystics can have an advantage over rational men.
Kinsella’s anti-capitalist/collectivist proposal suggests that man is a slave and that men have the right to the property and the products of the mind of other men. That man is compelled by some sort of social contract to share his property and everything that proceeds from his efforts and ability to create wealth. The philosophy behind his proposal is “man is his brother’s keeper.” This simply means that anarcho-capitalism is a gateway to various kinds or derivatives of collectivism. The axiom of Kinsella’s proposal is this Marxist credo– “FROM EACH ACCORDING TO HIS ABILITIES, TO EACH ACCORDING TO HIS NEEDS.” Ergo, Kinsella’s proposition is the best mystical tool for the looters and the moochers who only rely on the ability and energy of thinking men. It is a proof that anarcho-capitalism is simply a floating abstraction which gives due advantage to the mystics and potential dictators. Yes, Mr. Kinsella, you are a closet collectivist. You’re a collectivist but you just don’t know it.
Now let me reproduce here the argument made by Greg Perkins against some Libertarian scholars against intellectual property. Perkins wrote the following:
“Abandoning intellectual property protection is saying that the author who invests thirteen years in writing a bestseller has no more right to profit from its sale than anybody else. It is saying the studio that risks $100 million on producing a blockbuster movie has no right to set the terms of its use to enjoy blockbuster profits, even though it retains the sole right to suffer the losses of a flop. The same is true for the labs that invest billions in developing mechanical, electronic, and virtual tools and toys that improve peoples’ lives. It is saying that biotech companies who risk vast fortunes and decades of sweat in striving to create life-saving drugs and population-sustaining crops should simply give away the benefits of their risk, toil, and dedicated genius.
“It is true that the sudden abandonment of intellectual property rights would be a boon for manufacturers and customers, instigating a burst of wealth-creation as they deployed formerly protected ideas more freely. But this would be short-lived and stagnation would soon follow as those who might have risked, invested, toiled, and dedicated their genius to the next opportunity simply shrug. Creators would stand aside and not bother, or they would spend their minds on developing those (much more limited) things which aren’t easily copied and imitated. Having killed the proverbial goose that lays the golden eggs, countless life-serving creations would come more slowly or not at all. Why risk a billion dollars and half a lifetime attempting to develop a cure for cancer if others can profit by that achievement any way they see fit? Then decline would follow stagnation as shifting conditions in populations and resource availability bring new challenges that will go unmet.20
But again, disastrous practical results alone are not a full justification; they are only a (very strong) hint that there is a deeper explanation we must appreciate, an important fact we need to respect. In this case, the numbingly unjust and destructive results are ultimately caused by the denial of the crucial role of ideas in wealth-creation. Rand summarized it this way:
Every type of productive work involves a combination of mental and physical effort: of thought and of physical action to translate that thought into a material form. The proportion of these two elements varies in different types of work. At the lowest end of the scale, the mental effort required to perform unskilled manual labor is minimal. At the other end, what the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values; these laws protect the mind’s contribution in its purest form: the origination of an idea.21
In the example I gave above, if A, scientist, discovered the cure for AIDS, and the IP socialists succeeded in abolishing the IP law, he now has to choose between manufacturing the cure for AIDS and keeping his discovery a secret. But suppose he chose to manufacture the cure for AIDS and as a result, the idea or the formulation became known to big-time pharmaceutical corporations, how can he now compete with multinational pharmaceutical companies who stole his idea if he only had a small capital to put up his own pharmaceutical company in order to mass produce the cure for AIDS?
Under the terms of the IP socialists, the big gangs would end up as the beneficiaries of the “intangible ideas” created by creators and producers. The concept of copyright and intellectual property right entails that an “intangible idea” has value. But the question is: value for whom? Whether a thing is intangible or tangible, if it has value, it is considered a property. If one is willing to pay for the idea of another person, that thing, which is the subject of payment, is considered a property. A trade secret is a property, which must be protected against a company’s competitors. Information, which has value, is a property. Such information, if it pertains to the management strategies and scientific techniques of a company, which might put the it’s viability at risk if known to its competitors, has a corresponding value to the company’s management stakeholders.
Suppose Inventor A discovered a machine that can produce an infinite amount of energy, and this machine, which does not consume any fuel, converts vibration into electricity. Inventor A knows that his technology is possible and has a great commercial value, but under the terms of the IP socialists like Mr. Kinsella, any bigger gang out there can loot the product of his own mind since there is no guarantee that his IP right would be protected. What should a creator like Inventor A do now that a social contract exists allowing everybody to have the right to the idea or invention of everybody? You may proceed from here…
It must be observed that the creepy, dishonest scheme of the anarcho-capitalists is that they attempt to elevate their political cause to the realm of reason. They are merely plagiarizing the style of Immanuel Kant who distorted reason by divorcing it from reality. Now these subjectivist, relativist and logical positivist proponents of anarcho-capitalism seek to widen the breach between reason and reality by also distorting the meaning of freedom, liberty, individual rights, and capitalism. Politically and philosophically, these proponents and supporters of anarcho-capitalism, most especially the disciples of Murray Rothbard, are pragmatists.
Ayn Rand wrote:
“In the name of reason, Pragmatism established a range-of-the-moment view as an enlightened perspective on life, context-dropping as a rule of epistemology, expediency as a principle of morality, and collective subjectivism as a substitute for metaphysics. Logical Positivism carried it farther and, in the name of reason, elevated the immemorial psycho-epistemology of shyster-lawyers to the status of a scientific epistemological system—by proclaiming that knowledge consists of linguistic manipulations.”
Furthermore, here’s Ayn Rand’s idea of patent and copyright: “Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.”
It is important to understand that everything in this universe falls into two fundamental categories: tangible and intangible. Tangible things or property include machines, laboratories, computers, air, water, electricity, etc., while intangible entities are ideas produced by the mind. In order for man to survive, he must use reason. In order for man to have a comfortable and better life, he must discover new things. Everything existed in this world before man discovered them. It took man thousands of years before discovering electricity. Man discovered, through the use of his mind, that air, water, earth and fire are a potential form of energy that can be converted into an actual product: electricity. It is the rational idea from man’s working mind that led to the discovery of things that we have today, which makes life more comfortable. Under the law of identity, there can be no material entity without man’s productive use of his mind. There can be no commercially useful things without man’s productive idea. To deprive man of the product of his own mind is to allow every looter and moocher to appropriate it.
Ayn Rand further wrote:
“What the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values; these laws protect the mind’s contribution in its purest form: the origination of an idea. The subject of patents and copyrights is intellectual property.
“An idea as such cannot be protected until it has been given a material form. An invention has to be embodied in a physical model before it can be patented; a story has to be written or printed. But what the patent or copyright protects is not the physical object as such, but the idea which it embodies. By forbidding an unauthorized reproduction of the object, the law declares, in effect, that the physical labor of copying is not the source of the object’s value, that that value is created by the originator of the idea and may not be used without his consent; thus the law establishes the property right of a mind to that which it has brought into existence.
“It is important to note, in this connection, that a discovery cannot be patented, only an invention. A scientific or philosophical discovery, which identifies a law of nature, a principle or a fact of reality not previously known, cannot be the exclusive property of the discoverer because: (a) he did not create it, and (b) if he cares to make his discovery public, claiming it to be true, he cannot demand that men continue to pursue or practice falsehoods except by his permission. He can *copyright the book in which he presents his discovery and he *can demand that his authorship of the discovery be acknowledged, that no other man appropriate or plagiarize the credit for it—but he cannot copyright theoretical knowledge. Patents and copyrights pertain only to the practical application of knowledge, to the creation of a specific object which did not exist in nature—an object which, in the case of patents, may never have existed without its particular originator; and in the case of copyrights, would never have existed.
“The government does not “grant” a patent or copyright, in the sense of a gift, privilege, or favor; the government merely secures it—i.e., the government certifies the origination of an idea and protects its owner’s exclusive right of use and disposal.”
Dr. Harry Binswanger, of the Ayn Rand Institute, clearly explained the psychology of the anarcho-capitalists. Dr. Binswanger wrote:
“The anarchist claim merits discussion only to illustrate the sort of self-defeating contradictions generated by anti-philosophical movements, of which the so-called “libertarians” are a prime example.
“A proper government is restricted to the protection of individual rights against violation by force or the threat of force. A proper government functions according to objective, philosophically validated procedures, as embodied in its entire legal framework, from its constitution down to its narrowest rules and ordinances. Once such a government, or anything approaching it, has been established, there is no such thing as a “right” to “compete” with the government—i.e., to act as judge, jury, and executioner. Nor does one gain such a “right” by joining with others to go into the “business” of wielding force.
“To carry out its function of protecting individual rights, the government must forcibly bar others from using force in ways that threaten the citizens’ rights. Private force is force not authorized by the government, not validated by its procedural safeguards, and not subject to its supervision.
“The government has to regard such private force as a threat—i.e., as a potential violation of individual rights. In barring such private force, the government is retaliating against that threat.”
Really, it’s not surprising that the anarcho-capitalists are Kantians and modern-day propagators of logical positivism, pragmatism, relativism, and subectivism.
(The above quotation is reprinted from the August 1981 issue of The Objectivist Forum.)