Is Intellectual Property Properly Property? A Sketch

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“Intellectual Property” as defined by a quick Google search is,

“a work or invention that is the result of creativity, such as a manuscript or a design, to which one has rights and for which one may apply for a patent, copyright, trademark, etc.”

This will include the content of books, music, blueprints, ect. It does not include, for instance, the actual physical book. Just the contents included. The physical book is considered “real” property.

I’m writing out my thoughts on this obscure idea because this is a topic that most Christians have never thought about. It is something that they live with and they simply assume it’s legitimacy. Most of these words were originally from discussions I have had online, so having the ideas already lined out, I have decided to share them with everyone.

Classically understood, property must be scarce. One cannot own something that is infinitely copyable and of such a widespread abundance that everyone has possession of it or can have possession of it. One does not own the air we breath everyday, but in environments where air is scarce, if you can contain it and use it, it becomes property. The idea and the importance of private property is to check violence in an environment with multiple persons yet scarce resources. There must be some sort of principle in which people can justly divide up scarce resources instead of simply fighting over things. This is where we get “first user” or homesteading principles. Whenever something is infinitely copyable, say an idea (which could be a combination of letters like a story, a theory of some sort, a design, a combination of noises like music, colors displayed a certain way like paintings) then that idea cannot rightly be understood as property. It is not scarce.

Not only is IP inconsistent with private property principles, it actively violates private property principles. If I buy a material thing, I should have all rights pertaining to that item I now rightly possess. Meaning, I actually own it. I have the right to perceive, copy, translate, modify, any abstract ideas that are connected with the owned physical property.

Theft is certainly sin, but we must think clearly about what theft is. Can we say consistently that copying an idea is theft? How does one steal something that the original owner still possesses? Is something theft because it ontologically IS theft, or because the corrupt and wicked government says it is? Is all copying theft, or just the copying of certain ideas? Why those certain things? If copying an idea IS theft, then I would humbly ask for some sort of biblical principle that explicitly or implicitly says that. I certainly could be neglecting a verse somewhere.

There is so much that could be said about this, and many interesting and valid objections that I believe can be adequately addressed.

First, everyone wants the author to gain from their work. There are many ways to gain from works of intellectual property without the use of restrictive laws.

Second, to take something that you did not write and to publish it as your own for monetary gain is not theft (because you still have it), BUT it is lying and possibly fraud. That is a different thing altogether that does not require IP laws to address. Lying like that is certainly a sin, and according to God’s Law, possibly could be against the civil law. We cannot jump from something being a lie to something being theft without biblical evidence or strong philosophical deduction.

I’d like to stress that I believe not only that abstract content providers can have monetary gain without IP laws, but they should if that is their desire. This can, and already does, include free market devices such as DRM, and initial release contracts restricting data release. I believe we really underestimate the power of markets in its ability to provide for things they see as valuable.

I understand the desire to protect authors from malicious fraud and that desire is perfectly legitimate. In addition, I believe that the desire to ensure that an author/artist is able to receive monetary gain from the fruits of his or her labor is a natural and righteous desire. I want to be clear that those desires aren’t unjust or illegitimate. Quite the opposite.

The argument that IP Laws are simply a matter of honoring a contract is a fascinating idea. If legitimate, the case for IP could be summed up with “let your yeses be yeses”. I, however, do not find this argument to be persuasive. The very idea of IP is a modern construct designed to stifle competition. The governmental agencies required to enforce and police these IP contracts are not authorized in scripture. The whole of the idea and the whole of the system is dishonest, harmful to society, and destroys real property rights. Even if implicit or explicit contracts were made, the contracts are not just or logical. There is certainly no theft. At most it is a breaking of an unjust contract with a governmentally protected publisher.

While most arguments for IP will come from a right desire to protect the author, designer, or artist, it is my contention that the goals of IP laws were never the protection of the content creator. Rather, it was just another means of the government to gain control over the people. It was used, and is still used, as a way to stifle unpopular ideas and to curry favor from large and powerful private enterprises that can afford to navigate the convoluted and corrupt waters of the U.S.P.T.O. It is nothing more than crony capitalism. This quote from Gary North comes to mind.

“What is significant for our understanding of copyright law is this: it was never established to protect the interests of authors, who are the creators. It was established to enable the government to regulate less expensively the flow of politically incorrect information into the hands of the public. Secondarily, it established what economists call an oligopoly for printers. As for authors’ economic interests, who cared? Nobody.”

My view is that a government bureaucracy isn’t the correct way to answer your (and my own) natural and righteous desires for justice, fair recognition, and due profit. Much like every other government bureaucracy, the U.S. Patent and Trademark Office is full of inefficiency and corruption. I believe that as well as the free market principle argument against IP, the lack of biblical precedence against copying or protection against hypothetical profits (as opposed to realized capital), I also hold that the free market would provide for any needed devices to ensure gain for those providing valued content. And those methods would inherently be more efficient and ethical than any system Washington could conceive of.

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