What People Are Missing About Property

Over at Rondam Ramblings is a very interesting post about the debate over some Internet-threatening legislation (the Stop Online Piracy Act, aka SOPA) that Congress is considering. The author, "Ron", makes quite a few very interesting points, and shows himself to be quite astute about the importance of naming all the premises in any debate. Unfortunately, he reaches a dangerously wrong conclusion, which he claims is what "everyone is missing in the SOPA debate":

[I]ntellectual property [is] a granted right, not a recognized or fundamental right...

Ron reaches this conclusion by considering the clause in Article 2 of the Constitution that establishes patents and copyrights, and noting several differences between these rights and property rights, both legally and culturally:

[T]he "right" to "intellectual property" does not exist unless explicitly granted by Congress at its discretion. Furthermore, Congress is constrained to grant this right only in service of a specific purpose. namely, to promote the Progress of Science and useful Arts, and only "for limited times".

... "[I]ntellectual property" is clearly on a different legal footing from the "inalienable rights" to "life, liberty and the pursuit of happiness" to which people are endowed by their Creator, as recognized in the [D]eclaration of Independence. Neither the Declaration nor the Constitution mentions "property" by name [correction: the 5th amendment does mention it. See the comments.], but it is quite clear that the right to physical property was universally considered an inalienable fundamental right by the Founders.

Ron clearly is grappling with the issue of what the Founding Fathers might have meant by their clause, as he looks for historical evidence within the Constitution and other historical documents. Unfortunately, two aspects of his approach lead him astray.

First, it seems to me that the Founding Fathers were themselves unclear about the exact nature of property. For one thing, a quick search of the web site usconstitution.net reveals that they themselves did not use the term "intellectual property". This suggests that perhaps the concept of intellectual property hadn't been fully formed yet (or at least was very new, or not yet widely accepted), although the Founding Fathers realized on some level that there was something about creative work that merited protection. For another thing, the fact that slavery was recognized in the Constitution suggests that the way that many people held "property" as a concept at the time was wrong. Otherwise, the idea that people could be property would have been widely ridiculed, rather than codified into law in any way whatsoever. The Founders thus were sincerely attempting to protect individual rights, while at the same time (and like anyone), facing errors (e.g., the slavery question, for some) and incomplete knowledge (e.g., an incomplete grasp of the nature of intellectual property) of their own, as well as whatever virtues or limitations the culture of their time placed on what, politically, was possible.

Second, and proceeding directly from the above, while I do not fault anyone with looking at history, an attempt to grapple with the question of whether intellectual property is an individual right is hampered without also considering the philosophical question of what property really is. Any errors or incompleteness of knowledge on the part of the authors of the Constitution will limit any such inquiry that does not account for (1) the essential purpose of the document (setting up a government that protects individual rights) and (2) the nature of those rights.

It is at this point that I defer to Ayn Rand, who made the following argument in a chapter of her book ("Patents and Copyrights"), Capitalism: The Unknown Ideal:

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. [bold added]

Rand is arguing that, as a type of property (i.e., something obtained through individual effort), intellectual property is a fundamental right. Elsewhere in her article, Rand explains that the time limits on patents and copyrights are essential aspects of securing these rights: When the originator of the idea dies, his ideas cease to exist as property. She goes further:

Since intellectual property rights cannot be exercised in perpetuity, the question of their time limit is an enormously complex issue. If they were restricted to the originator's life-span, it would destroy their value by making long-term contractual agreements impossible: if an inventor died a month after his invention were placed on the market, it could ruin the manufacturer who may have invested a fortune in its production. Under such conditions, investors would be unable to take a long-range risk; the more revolutionary or important an invention, the less would be its chance of finding financial backers. Therefore, the law has to define a period of time which would protect the rights and interests of all those involved. 

Intellectual property is a fundamental right, and the differences in how the government secures that right from other property rights are not concessions to its being a granted favor or a civil (rather than a fundamental) right, but rather recognitions of the fact that intellectual property differs from tangible property in fundamental ways.

I disagree with Ron's conclusion about intellectual property: Intellectual property is a fundamental right, regardless of whether the Founding Fathers regarded it as such. That said, breaking the Internet is not the proper way to secure that right, and for that reason, I agree that Congress should scrap SOPA/PIPA.

-- CAV