In some respects, I agree with both sides in the heated L. Neil Smith-Shire Society intellectual property dispute. There has been some childish name-calling from each camp, although Smith’s has been far more harsh.
The controversy stems from the creation of the heretofore obscure Shire Society, the several dozen signatories claiming their “commitment to peace, individual sovereignty, and independence.” The signing of the declaration took place in June at the 2010 Porcupine Freedom Festival affectionately known as Porcfest, which is hosted by the Free State Project. (Note: I am a Free State Project participant, but I do have my own reservations about the Shire Society Declaration.)
The drafting of the precise language of the Shire declaration involved about 10 people and took place over several months. The final document borrowed heavily from Smith’s “A New Covenant.” From what I understand, this fact was acknowledged early in the deliberation process, though some were not aware of this at the time of their signing.
Smith’s twofold complaint is that he has not received enough credit for inspiring the society’s declaration and that he could suffer financially if people decide to back the Shire’s document instead of paying Smith two dollars to archive their pledge to his original work. He is also critical of the revisions made by Shire members.
I cannot say this represents all the facts, but they are the most relevant facts I know of. The primary ethical defense for the action of the Shire Society members is that non-tangible objects are fundamentally different from tangible objects insofar as they can be replicated without the destroying the original object. (I agree that much is true.) Consequently, Smith has not been injured by the copying of his original thoughts. Shire defenders lose me when they say restrictions backed by force on the use of non-tangible objects constitute aggression by restricting how users may use their own tangible property in the duplication of existing works.
This last claim is dubious because it tries to state as fact that non-tangible objects cannot be property. [Edit: In the original copy, this paragraph read as if I was expressing that I believe ideas, in and of themselves, can be owned; whereas, I was trying to express that it was someone’s labor that created those ideas.) It should be a simple matter of demonstrating that labor is owned and can be negotiated on what terms a laborer thinks favorable.
All Property is Intellectual Property
Ultimately, I believe the Shire Society should prevail in this case, but the argument against non-tangible property that its defenders put forth is unconvincing.
All wealth is a product of the ideas of the mind. We may use our muscles and bones to move earth or write a play, but our physical body is just a tool of our mind, which propels the use of those tools. As Lysander Spooner said, “There is, therefore, no such thing as the physical labor of men, independently of their intellectual labor.” The motion of our bodies, our labor, is equally non-tangible, yet no one would deny we own our own labor.
The creation of property (wealth that is possessed) is primarily an intellectual exercise by integrating an individual’s abstract and perceptual knowledge of objective reality into concepts to act upon. That is how, counter-intuitively, writers such as Smith can arrange words, which are limitless and therefore valueless in and of themselves, into highly valued books that people find it worth trading their scarce time and labor to read.
The value is found, not in the printed words themselves, but in the usefulness (or entertainment) of the expression of those ideas. The same is true of tangible property. Tangible property is by its nature scarce, but it is not necessarily finite. Wealth is not finite either. It is a product one’s mind, as Ayn Rand said, and endless imagination.
Whether someone’s work is harmed by duplicating it or not is irrelevant to the question of who may use the work.
Property does not exist so much in the physical dimensions of an object as it does in identifying the decision-making interest of the object. It means acquiring “the full services that can be derived from a good,” as Ludwig von Mises said. A property right is the ability to act freely (without the threat of force) and accept the consequences of that action at the exclusion of that same right to others while simultaneously honoring the property rights in relation to other objects.
Resolving Intellectual Property Disputes
The right to free speech is the right to use his or her property to disseminate information, except in cases to coerce others of their property, and the corollary right not to disseminate information. In that respect, the Shire Society has a case for borrowing from Smith’s work.
One possible limit could exist if the information was first acquired conditionally. To illustrate, if I sell a book under a certain explicit condition, such as a restriction on duplication, then I have not sold the full ownership and still retain certain property rights to that particular copy. Of course, the onus is on the original owner to state those restrictions before the transaction. If my customer transferred or lost ownership of the book, the next owner could not morally acquire any greater ownership rights than the previous owner, because I would retain whatever conditions were originally created.
The problem with existing intellectual property law is that the conditions of ownership are set by government law, that is, by force. The involuntary intervention of government enforcement enables intellectual property owners to place far harsher conditions than they could negotiate freely. Effectively, government intellectual property conditions are made under duress and should not be enforced.
In the case before us, Smith set no such additional property conditions on the use of the work on his Web site. And if he did set forth such conditions, the burden of proof would be on him to prove that someone deliberately copied his work and that it was not mere coincidence. The principle is, not that people owns ideas, per se, but they do own the labor that contributed to those ideas. Smith could not claim ownership of a coincidental duplication since he cannot own another’s labor either.