I’ve previously discussed and criticized Objectivist views on IP, including those of Diana Hsieh, Greg Perkins, and Adam Mossoff.1
In a recent Noodlecast, Hsieh and Perkins have about a 10 minute segment discussing music piracy and IP:
Question 4: The Morality of Pirating Music (34:37)
Is pirating music immoral? Why or why not? In one way I think it must be immoral because it involves gaining the unearned, but there have been (granted I know little of the music industry) many claims that illegal file sharing has actually been good for the music industry in a number of ways. There have also been arguments that it is not technically theft because it involves copying information instead of physically taking it from the owner i.e. the original owner (and creator) has not lost the music even after you have copied it, but this argument seems shoddy by its concrete bound concept of theft and ownership. Simply put, to me, it feels immoral, but I have trouble conceptualizing exactly why.
My Answer, In Brief: As Adam Mossoff persuasively argues, all property is fundamentally intellectual property. So, contrary to the spurious arguments found in the question, the reason to respect intellectual property is the same as the reason to respect tangible property, namely that the mind is the source of all value.
Perkins’s and Hsieh’s attempts to answer the piracy question help to highlight several flaws in Objectivist thinking. First, they admit the importance of the economic concept of scarcity as it applies to rationing scarce resources; but then they flippantly dismiss emphasis on this for the field of rights as focusing on some incidental feature or “concrete bound.” Scarcity is incidental? But without scarcity we would not have the possibility of conflict. Hsieh says “good ideas are scarce,” thus conflating “not abundant” with “scarcity,” which ignores the precise economic concept of scarcity as being rivalrousness–this kind of confused use of terms leads to equivocation: Hsieh and Perkins both use “scarcity” in the “rivalrousness” sense when they are talking about material objects and “microeconomics,” but in the “not abundant” sense when saying “good ideas are scarce.”
Second, they say that property rights flow from man’s productive nature–his need to have property rights in “values” he produces. I have always thought this was an incredibly crankish and confused concept by Rand: we do not create “values” as values do not exist as some independent entities. Rand appreciated Mises, so it’s surprising more Objectivists do not realize that value is relational, subjective (not in the evil Kantian sense, but not intrinsic or “in” thing). You demonstrate that you value something by your action–this is the Misesian notion of demonstrated preference, which actually parallels Rand’s idea of value as something that you act to gain and/or keep.2 You don’t own “a value”–rather, things are valuable to you. The idea that you “own” “values” because you “create” them is utterly confused. And Rand should have known this: as I explain in my post Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”, she elsewhere wrote:
The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power—and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.
In other words, we create “wealth,” we “produce,” by rearranging property into more valuable arrangements. It is crankish and potentially misleading to say you “create values,” and that you thus need to “own” values. If you realize that producing means transforming or rearranging already owned, existing property, then you can easily see that you are able to benefit from the “wealth” you “create,” from the “value” you find in these things, because you already own the factors that you transformed by your productive efforts. If I own a piece of steel and I forge it into a sword, it’s more valuable to me–but my property rights in the steel-now-sword is all the property rights I have; I do not own the steel, the sword, and ”the value”–that would be double or triple counting. Sure, your ownership of the steel (and thus the steel-shaped-as-sword) gives you the practical ability to benefit from and use the wealth you created, the value you added. But you don’t own “the value” as some independent thing. This is exactly why Rothbard argues in “Human Rights” As Property Rights that there are no independent rights to freedom of speech, say:
As I wrote in another work:
Take, for example, the “human right” of free speech. Freedom of speech is supposed to mean the right of everyone to say whatever he likes. But the neglected question is: Where? Where does a man have this right? He certainly does not have it on property on which he is trespassing. In short, he has this right only either on his own property or on the property of someone who has agreed, as a gift or in a rental contract, to allow him on the premises. In fact, then, there is no such thing as a separate “right to free speech”; there is only a man’s property right: the right to do as he wills with his own or to make voluntary agreements with other property owners.2
In short, a person does not have a “right to freedom of speech”; what he does have is the right to hire a hall and address the people who enter the premises. He does not have a “right to freedom of the press”; what he does have is the right to write or publish a pamphlet, and to sell that pamphlet to those who are willing to buy it (or to give it away to those who are willing to accept it). Thus, what he has in each of these cases is property rights, including the right of free contract and transfer which form a part of such rights of ownership. There is no extra “right of free speech” or free press beyond the property rights that a person may have in any given case.
And it is the same with “wealth” and “value”–there are no property rights in values, since values do not exist independently; a given owner or actor may value his property because of its utility to him, but he does not own “the value” as a thing apart from the object that is valuable to him.
In response to the question about how pirating music can be theft or stealing since it’s just copying, and the original “owner” still has his copy, Hsieh simply asserts that it’s stealing because it’s immoral and because property rights come from man’s productive nature. But she never really addresses the argument. She just asserts that it’s taking the property since the property is the information pattern itself–i.e., she just begs the question.