The Ethics of Intellectual Property
ABOUT PROPERTY RIGHTS
An explanation of intellectual property rights, from an Ethics perspective, with a linguistics twist.
Let’s start with the linguistics aspects of the discussion. The word, “right” appears to be a noun – but it’s not really a noun. A noun represents a person, place, or thing. Given a big enough wheelbarrow, you could put a “person” in a wheelbarrow. You could put a “thing” in a wheelbarrow. You could even put a “place” in a wheelbarrow, if the wheelbarrow were, as I said, big enough. How would you put a “right” in a wheelbarrow? You couldn’t – so the word isn’t a noun.
So what kind of word is “right”? In the field of linguistics, we call such a word a “nominalization”. A nominalization is simply a word used as a short-cut or symbol representing a behavior, or related set of behaviors. The behavior represented by a nominalization can run the gamut from very simple to extremely complex.
To illustrate, here are some other nominalizations: idea, behavior, concept, science, mathematics, law, principle, business, religion, and government, to name just a few. Some might find it amusing to note that even the word, “noun” is a nominalization. There are also nominalizations that are multi-word-phrases, like “turn-of-the-century”, “part-of-speech”, or “multi-word-phrase”. Clearly, nominalizations can be very useful in communication. I use them all the time – and you do too.
However, when we discuss complex subjects like “rights”, “property-rights”, or “intellectual-property-rights” with any real objectivity, we need to take into account that these words symbolize behaviors and systems of behaviors – and deal with those properly.
When someone talks about intellectual property rights, they make many assumptions about the nature of rights, property, property rights, intellect, and finally, intellectual property rights. Let’s start with the word, “property”. The intuitive meaning of the word is that it represents anything that can be put in a (large enough) wheelbarrow. If there is a noun that represents it, it can be property. An acre of land at a particular location can be property – as can a hat, a boat, a table, etc., etc. However this definition is incomplete. A thing, representable by a noun, may not be property. Consider the sentence, “That hat is my property.” The thing becomes “property” only when someone claims ownership of it. Until that happens, the thing is just a thing.
Murray Rothbard pointed out that there are only two ways that a thing ethically becomes someone’s property. When a thing is already owned by someone, one can make it one’s own by means of a voluntary mutual exchange – for example by buying it – in which case, the two parties to the transaction each value what they acquired more than what they gave up for it. This is the nature of any ethical transaction. The other way one can acquire a property ethically is by discovery. For example if you were wandering in a wilderness and found something that no one else owned – and if you could use it without taking it away from someone else – you could do so, thus making it your property. In either case, it is the behaviors involved that turn a thing into a property.
Now we should look briefly at the concept of ownership – another nominalization. Whether we acquire a property by exchange or by discovery, there is the assumption that, having done so, we will thereafter behave in accordance with the notion that we are the sole master of the thing that is now our property. We have decided not to allow anyone else to exploit the property, or to take it away from us, except by a voluntary mutual exchange. It is this internal behavior, this decision, and all the behaviors that are logical consequences of this behavior that collectively define ownership. What makes this behavior ethical is the fact that the decision of ownership, made in this way, increases our creativity without limiting or diminishing anyone else’s creativity. A detailed discussion of what is ethical and what is not ethical, can be explored on the Titanians website.
Now we are ready to address the meaning of the phrase, “property-rights”. When I assert that have the property rights to something, I mean that I have acquired ownership of that property ethically – in accordance with the definitions above. Note that it is the behaviorally-based definitions above that give meaning to the nominalization, “property rights”. In the absence of those definitions, there would be no such thing as property rights.
Moving right along, let’s now examine the phrase, “intellectual property”. What is an intellectual property? Suppose for a moment that you have an idea in your head (I imagine you have many). Is that Idea an intellectual property? Well, it’s certainly intellectual – in the sense that it exists in your brain. And it’s certainly yours – how could it be anyone else’s? But is it property? Ah – no! It isn’t a thing that could be put in a wheelbarrow – so it’s not property, as we’ve defined it above. So it can’t be intellectual property. It’s just an idea – thus far.
So, how might the idea be transformed into an intellectual property that you own? There are some subtleties to this question; but I’ll skip them for the sake of brevity – as their inclusion would make this explanation very long and tedious.
The answer to the question is best understood by example. Suppose your idea is an original (self-created) design for an X-ing machine. To become a property, you need to create a tangible representation of the design – by, for example, putting the idea on paper. You make a drawing, perhaps, and write an accompanying description of how the machine is constructed and how it works. That piece paper, and any copies you might make of it, comprise an intellectual property. It embodies your idea in a unique combination of lines, symbols, equations, and words that no one else has ever seen. It is uniquely yours. You own it. It is your intellectual property.
Now we are almost ready to begin discussing intellectual property rights. And I have to admit, it gets just a little strange. We have to ask the question, “Where did you get your ‘original’ idea”? John David Garcia made the assertion that the universe is a holographic quantum mechanical phenomenon and that the human brain is a quantum mechanical machine. He further asserted that the human brain can reach out into the quantum universe and find new information (new to the finder). Since the information may be true or false, we then test that new information by using the tools of science, to see whether that information is, in fact, true or false. This is the sole purpose of science.
I could write a whole book about how I’ve come to believe that Garcia was correct in these assertions – but, for the purposes of this article, suffice it to say that I find the evidence compelling. So, my analysis proceeds accordingly.
Following this model, we can compare the quantum universe to the aforementioned wilderness in which we found something potentially useful and claimed ownership of it – or the rights to it, if you will. As in the discovery model above, the design for your X-ing machine was found by you – not purchased or copied from someone else’s original design. And, unlike tangible things that might be found, you haven’t taken it away from someone else, nor prevented someone else from using it. From an ethical point of view, then, you are free to use your design, build your X-ing machine, mass produce it, and sell as many as you wish.
Now comes the controversial part of the situation. People in so-called “governments” assert that if someone, other than you, described an original design for an X-ing machine, and “registered” that design by publishing it in the form of a patent, that there is no way to know whether your original design was truly original. You might have just looked up “X-ing machine” at the patent office and copied it with cosmetic changes to make it look original.
They (those government folks) would maintain that by copying someone else’s design you are taking away some profits from the design’s originator – and in this they are correct, and your action (copying the design) would have been unethical. So the government sets out to protect the original designer by deciding that the property rights belong solely to the original designer and will penalize you (by force or threat of force, if need be) if you infringe upon the original designer’s rights.
BUT, what if your design is truly original – NOT copied from someone else’s work? In this instance, the government’s prohibition against your use of your own design would limit and diminish your creativity – and that action would be unethical. For further clarity in this matter I suggest you read Ethics, Law, & Government on this website.
The short explanation resolving this apparent dilemma is to note that, as explained in the aforementioned article, ethical ends can never be attained by unethical means. And, while protecting people from theft is a legitimate function of government, doing so by unethical means is not.
From this I conclude that the current patent and copyright systems are ethically flawed; because they provide some people protection at the involuntary expense of others.
When a person acquires an intellectual property ethically, it follows that they have certain rights to it – so it can’t be the rights that are “against another person” – it must be the “claim” that is against the other person. What does that mean? I’m not totally sure, but – I’m guessing here – that to make a claim against another person is to assert that the other person acquired their intellectual property unethically – by copying your property. If you have objective grounds to assert this, you have every right to seek compensation or restitution. Otherwise not.
“Should a person ever defend their intellectual property rights against the infringement of another person?”
Now I’m not one to tell others what they “should” do – since the word “should” just implies what someone else wants – but I’d be totally comfortable if the question were finally revised like this:
“Is it ethical for a person to defend their intellectual property rights against the infringement of another person?”
AND OF COURSE THE ANSWER IS, “YES!” – With the understanding that intellectual property rights (or any other property rights, for that matter) only exist when the property has been acquired ethically – in which case it would be unethical NOT to defend those rights.
© April 2011 by Robert Podolsky
All Rights Reserved