Anti IP, Contra Spooner

Lysander Spooner is a famous name among radical libertarians, and probably among the larger libertarian movement as well. And rightly so. His critique of the U.S. Constitution as a “social contract” is a persuasive and extensive work. He was also a staunch abolitionist (while opposing Lincoln’s tyranny), and he is known for setting up the American Letter Mail Company in defiance of the high postage rates imposed by the monopolistic US Post Office. In short, Spooner was a principled libertarian who worked tirelessly to advance liberty through both theory and action.

But… much like other human beings, he was not perfect. In particular, his work on intellectual property leaves much to be desired. His essay, The Law of Intellectual Property, offers a somewhat confused theory of IP, contains contradictions, and rests on questionable fundamentals. Below, I present my critique of this essay, and I wish only that he were alive to respond.

What Can Be Property?

The most pronounced cracks in Spooner’s theory are visible when he discusses What Things are Subjects of Property. Part of this section actually appears to exclude ideas from being property whatsoever:

“Every conceivable thing, whether intellectual, moral, or material, of which the mind can take cognizance, and which can be possessed, held, used, controlled, and enjoyed, by one person, and not, at the same instant of time, by another person, is rightfully a subject of property.” (Emphasis both mine and his)

And in the next paragraph:

“…all the things, intellectual, moral, emotional, or material, that can contribute to, or constitute, the happiness or well-being of man; and that can be possessed by one man, and not at the same time by another, is rightfully a subject of property…” (Emphasis mine)

If it’s not clear what Spooner is saying here, he is talking about what we now refer to as rivalry. A good is said to be rival when its use or consumption interferes with or prevents simultaneous consumption or use by another person. So, are ideas rivalrous? No, they are not.

For a simple example of a rivalrous good, think of a chair. It is plainly obvious that if two or more people tried to use the chair simultaneously, there would be conflict. Thus, we have property rights, which are a means of determining who has the right to use the chair, and to exclude others from use. In other words, property rights arise because there is a need to decide who ought to control something. Ideas are quite different. My use of an idea does not directly interfere with your use of the same idea. We can both, for instance, simultaneously listen to the same song, employ the same business strategy in our store, or build a flying car with the same instructions, without coming into conflict.

It appears that in the very essay where Spooner is attempting to justify property in ideas, he has excluded ideas from being property. He does this by positing rivalrous as a component of property.

Spooner goes on to say:

“A man’s ideas are his property. They are his for enjoyment, and his for use. Other men do not own his ideas. He has a right, as against all other men, to absolute dominion over his ideas. He has a right to act his own judgment, and his own pleasure, as to giving them, or selling them to other men. Other men cannot claim them of him, as if they were their property, and not his; any more than they can claim any other things whatever, that are his. If they desire them, and he does not choose to give them to them gratuitously, they must buy them of him, as they would buy any other articles of property whatever. They must pay him his price for them, or not have them. They have no more right to force him to give his ideas to them, than they have to force him to give them his purse.”

But the fact that other men may pay a man to disclose an idea, does not prove that the idea was or is owned. It may simply be that a man’s body is his property, and so it follows that others may not threaten to or harm his body lest he reveal some information. Property in ideas is not needed to explain what is going on here. Only property in the body is.

Perhaps the flaws of ideas as property will be more apparent if we use Spooner’s own example:

“The air, that a man inhales, is his, while it is inhaled. When he has exhaled it, it is no longer his. The air that he may inclose in a bottle, or in his dwelling, is his, while it is so inclosed. When he has discharged it, it is no longer his.”

Cannot this same reasoning be applied to ideas? Perhaps in a sense, we could say the idea is my own while it is in my head (though there are reasons not to call it property, as explained above), but after it is let out into the world, it is no longer mine exclusively. As Spooner mentions later of air, “When we exhale it, we abandon our right of property in it.” I see no reason why when we disclose our ideas to others, we also abandon any right to it we may have had. The fundamental reason being that while some air or an idea are only in my head, it would inherently cause conflict if someone were to attempt to use them. Once, the idea is in others’ heads as well, there is no conflict in use.

Spooner addresses my suggestion later on, by noting that it is perfectly reasonble to allow others to be in possession of your property while retaining ownership in it.

“This is a very shallow objection, since it is founded wholly on the assumption, that if a man once intrust his property in another man’s keeping, he thereby loses his own right of property in it; whereas men are constantly intrusting their property in other men’s hands, in many different ways, and for many different purposes…”

I think the analogy between ideas as property and other types of property, does not hold. Think again of the air example. Even if we grant that I own the air while it is in my lungs, why do I no longer own it once I expel it? It is because it is no longer scarce and rivalrous. The question of “who owns the idea?” need not come up, since there will not be a conflict over its use. The person who tries to prohibit the use of an idea once that idea is out in the world, is actually creating conflict where it need not be. Conversely, if I allow a friend to possess my laptop for a while, the question of ownership is still quite relevant. If I want the laptop back and my friend refuses, we are at a crossroads. Some resolution will be needed to decide which of us has the better claim to ownership.

Spooner extrapolates:

“If the ideas, which a man has produced, were not rightfully his own, but belonged equally to other men, they would have the right imperatively to require him to give his ideas to them, without compensation; and it would be just and right for them to punish him as a criminal, if he refused.”

This implies that the only other option besides private ownership for ideas, is communal or collective ownership. But this overlooks a 3rd option of non-ownership. If ideas cannot be owned (either privately or collectively) then punishment can be explained as unjust by appealing to the ownership of the person’s body. Again, property in ideas is not necessary to explain how using aggressive force against someone violates their rights.

Labor As Justification Of Property

Spooner asserts that there are 2 general methods for acquiring property. The first is via discovery and possession.

1. The natural wealth of the world belongs to those who first take possession of it. The right of property, in any article of natural wealth, is first acquired by simply taking possession of it.
Thus a man, walking in the wilderness, picks up a nut, a stick, or a diamond, which he sees lying on the ground before him. He thereby makes it his property—his own.

If ideas be considered as productions of nature, or as things existing in nature, and which men merely discover, or take possession of, then he who does discover, or first take possession of, an idea, thereby becomes its lawful and rightful proprietor; on the same principle that he, who first takes possession of any material production of nature, thereby makes himself its rightful owner.

I again point out that ideas should not be lumped in with other materials so hastily. It is a very different thing to say I own a stick than it is to say I own an idea. If we disagree about what a particular stick should be used for, one of us will ultimately need to be granted the right to decide (in other words, a property right). However, if we disagree about how to utilize an idea, we can both use it with no trouble. The question over ownership of the stick only ever arises when control over it conflicts. To apply the right of property to an idea would be like if everyone was able to use and control their own stick, but since one person found theirs first, he gets to control everyone’s.

2. The other mode, in which the right of property is acquired, is by the creation, or production, of wealth, by labor.

If ideas be considered, not as productions of nature, or as things existing in nature, and merely discovered by man, but as entirely new wealth, created by his labor—the labor of his mind—then the right of property in them belongs to him, whose labor created them; on the same principle that any other wealth, created by human labor, belongs rightfully, as property, to its creator, or producer.

But as Spooner goes on to say, creating something out of wood, or stone, or iron, etc, only creates property in the creation if the laborer already owns the raw resources.

For example—a man bestows his labor upon a block of marble, and converts it into a statue; or upon a piece of wood and iron, and converts them into a plough; or upon wool, or cotton, and converts it into a garment. The additional value thus given to the stone, wood, iron, wool, and cotton, is a creation of new wealth, by labor. And if the laborer own the stone, wood, iron, wool, and cotton, on which he bestows his labor, he is the rightful owner of the additional value which his labor gives to those articles. But if he be not the owner of the articles, on which he bestows his labor, he is not the owner of the additional value he has given to them..”

Applying the creation justification to ideas then, is begging the question. Humans do not create things from nothing. Just as garments come from wool, ideas come from other ideas. And in order for Spooner’s argument to hold, he would need to show that the creator of an idea owned all of the things that went into the creation. Or indeed, that all of the inputs can even be owned.

Despite touching on the concept of rivalry briefly in his discussion of what can be property, Spooner goes on to contradict himself throughout the rest of the essay. He consistently ignores rivalry by repeatedly comparing ideas to other types of property. Overall, he applies property far too broadly. Property in one’s body is all that is needed to prohibit others from forcing you to give up secrets. To call the idea property as well, is to confuse the matter.