A Predator of Information

I've had conversations along these lines a few times in a few weeks, so I'm going to write about property.

Most copyfighters dislike the term ‘intellectual property’ as it implies a similarity between the ‘property’ of your lunch and the ‘copyright’ of the text of a book. If someone swipes my lunch, I don't have a lunch any more. If someone uses my recipe and makes a lunch with it, I still have my lunch. This fits most people's intuitions, who don't view downloading a song or movie nearly as harshly as the movie industry would like them to, if they disapprove of it at all. Many people would quite happily download a car, if 3D printers could print them.

This obscures the fact that ‘property’ as commonly used and ‘intellectual property’ are more similar than people realize. Both are, fundamentally, de jure restrictions on action, and both are, fundamentally, arbitrary.

First, let us be perfectly clear that ‘property’ is a restriction on the action of others and an implied threat of violence and nothing else. ‘Ownership’ is not the right to use something, it is the right to keep others from using something. If I find my way to an uninhabited patch of land, no Staunch Defender of Property as Basic Human Right is going to tell me I can't farm it, build a house, or improve and rent it out. Some, if they skew in a Lockean direction, may insist that I have to improve it significantly before I can tell other people they have to stay off it unless they pay me rent.

This is ironic, given how many people of a deontological libertarian leaning, who like to cite a ‘Non-Aggression’ principal, or who spend their time focusing on the badness of people telling others what to do view property as the foundation of freedom. Property is nothing but telling others what to do and threatening to aggress against them if they don't. Property creates the situation where one can shoot someone for sleeping on a patch of land or send the police after them for picking and eating fruit off trees.

In saying this, I am not arguing against property. I am insisting that we not fool ourselves on the question of what property is. Nobody who supports the idea of property is in a position to act as threatening violence is some line that must never be crossed.

Second, property is arbitrary. If we are to have property, then exactly what the details of property are are things that have to be worked out. In our current Western society many of them are invisible due to how pervasive they are. The norms in most cases are that one can use, sell, and otherwise dispose of property however they wish. There are obvious exceptions, such as the dreaded HOA (A homeowner's association is actually pretty similar to copyright law, in that people can take action against someone for doing something that lowers the resale value of adjoining property, like painting their house a funny color. The tort done by copyright violation is similar, as it lowers the price that a copyright holder can charge for a work.), mineral rights, airspace rights, easements, insider trading, and a lot of other things that mostly come up if you're well enough to own real estate or financial instruments.

Most societies have had some idea of ‘personal property’ to the extent that grabbing something someone else is holding is frowned upon. People who have a place where they sleep are usually entitled to keep other people out. However, in some societies land was simply not something one could ‘own’ as an individual. It was owned by a family, a larger societal group, or a nation. It could not be sold. Or, if it could be sold, it could not be sold outside of a community, or if it could be sold, its ownership would revert after some years. In the Pentateuch, the laws for property forbid stopping someone from walking through a field and picking and eating whatever they like so long as they don't carry food off with them for later. Also in the Pentateuch and in the customs of pre-Industrial Europe, the poor were allowed to glean. That is, after a harvest they were allowed to come in and gather up what was left. The Pentateuch even requires farmers to leave something behind to be gleaned.

In the modern United States and Europe, rights of ‘ownership’ are recognized in cases where something is not legally ‘property’. The most obvious example is that the lessee of an apartment is allowed to exclude their landlord except under a few circumstances. Exactly what rights the tenant has to exclude the landlord vary from location to location, but some exist in most of them.

All of these, including the idea that things can be sold for cash, are rules we made up. The only way it makes sense to think of property is as the rules of acquisition, use, and transfer imposed in a larger scheme of resource allocation. This is how most people think of intellectual property, and why it's so resented. Many people are in favor of artists being able to make a living and support creating incentives to create new and interesting stuff, but they see that the current intellectual property regimes are acting counter to that.

Similarly, we ought to question whether the regimes of property generally that we have now actually provide the efficiency, wealth, and standard of living that is claimed for them. This kind of questioning can happen among fans of property (for example, the economists Eric Posner and Glen Weyl quite like property and capitalism and think both can be improved by making property and its attendant exclusion and threat of violence expensive to maintain), or by socialists, some of whom might want to tear down and reconstruct notions of property entirely. Most socialists maintain an idea of ‘personal property’ as important, recognizing the importance of being secure in one's residence, not having people come in and rummage through your files or search your phone, or otherwise remove parts of your near, personal habitat without reason. However, they often support transforming or limiting the notions of land ownership, or ownership of means of production. The idea that I should be secure in the place where I sleep in no way contradicts questioning the idea of owning land and charging others rent to live there or contemplating that infrastructure should be owned and managed as a social good by the people who benefit from it.

None of this, by itself, argues that property is bad or needs to be abolished. It does mean that we should view property with skepticism and evaluate its mechanisms and details to see if it provides a sufficient return in wellbeing to compensate for its inherent restrictions on action.