THE PRODUCT OF MAN'S MIND

by Liberty and Power

A interesting quirk in Ayn Rand's theory of property creation seems to have major implications for the concept of intellectual property and may explain why libertarians are somewhat divided on the issue.

Rand seems to go to great lengths to distance her theory from John Locke's, trying to avoid the idea that mixing one's labor with an unowned resource transforms that resource into owned property. Instead, Rand always speaks of property as the"product of man's mind," not his physical labor.

Now, in most cases, this is a trivial distinction. Obviously, all physical labor is driven by thought; we are not zombies. But the distinction does become relevant when you think of intellectual property: music, stories, movies, etc. Because in a very real sense, Rand sees all property as intellectual property. A poem is as much a product of"intellectual labor" as is a building.

This, I think, helps explain why Objectivists are, among libertarian-minded folks, the ones most inclined toward the legitimacy of intellectual property, while libertarians who get their property theory straight from Locke (or from Locke via Nozick or Rothbard) tend to view"intellectual property" as suspect, as not really property at all, because it lacks any tangible existence.

For my part, I tend to side with the pure Lockeans, but I think Randians may find this an interesting area to explore.

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Charles Johnson - 1/7/2004

Franklin Harris is, of course, exactly right about one of the major causes for the Objectivist predilection for Intellectual Property (IP) protections. Indeed, some pro-IP Objectivists who have entered the lists with anti-IP Objectivists or libertarians have *explicitly cited* Rand's distinctive account of property as the touchstone of their case; and they argue that the difference between their position and the libertarian anti-IP position is proof that *political* appeals to the Non-Initiation of Force Principle (or a theory of rights generally) are empty without a prior *moral* account for property. (Those who are inclined to sneer at the word "libertarian" then have an easy transition to the "libertarians are nihilists" line.)

That said, I don't think that Rand's account of property *actually* does the work that anti-IP Objectivists (including Rand herself) want it to do. The reason is that neither Rand nor anyone else thinks that "X is the product of my mind" is a *sufficient* condition for "X is my property" -- because, for example, I could chisel a breathtaking sculpture out of a block of marble. But if I chiseled it out of *your* block of marble, that wouldn't thereby make the statue *my* property. So the "product of man's mind" formulation has to be qualified: X is my property if it's the product of my intellectual labor -- *on resources which are either mine or available for homesteading*.

Let's say you write a poem and read it aloud to me; I like it so much that I learn it by heart. Now that I've memorized it, there's a copy of the poem in my brain. Who owns that copy? If you are an Objectivist you might claim that you own it -- after all, the poem is product of your intellectual labor. "But wait," I say. "It may be the product of your intellectual labor, but this copy was produced using *my* brain. So it's mine." And if *that* copy is mine, then I can do anything I want with it except commit fraud or initiate force -- such as, for example, writing it down on a slip of my own paper (using my own ink) and selling it to people who are willing to trade their property for a copy of this poem.

The Objectivist might object that relevant property in this case is not the *particular copy* of the poem, but rather the *poem* itself. The *copy* of the poem in your brain may be your own property, but the *poem* itself is an abstract object, and it couldn't have been made out of your resources because abstract objects aren't made out of resources at all. But then what is "owning the poem" supposed to mean? I don't know what, exactly, it is to own an abstract object -- I am not sure that the notion makes sense. But more to the point I'm not *selling* abstract objects. I'm selling *particular copies*. And unless your claim to own the abstract object is actually a claim to own all the copies -- the claim we already considered and dismissed -- then it does not seem like I'm selling anything of yours when I sell the particular copies.

(Of course, I suppose that you could make a case for intellectual property if you were a Platonic realist about universals. For then it would be the case that the *form* of the poem, which you may claim to be yours, is *in* every *particular* copy of the poem that is sold. Indeed, this might open up a whole new speculator's market for homesteading unowned Forms! But if the Objectivist theory of intellectual property can only be saved through Platonic realism about universals, it seems pretty clear to me that IP is what's got to go.)

dragoon - 1/7/2004

One of the problems with discussing so-called "intellectual property" is the lack of a single type of intellectual property. Copyrights are very distinct from patents, and trademarks are different from the other two. When trying to argue what creations should be protected by force, it's best to deal with each separately.

In your examples, you seem to have mentioned only copyrighted intellectual property, but patents are a very important government-granted monopoly. I think the libertarian justification for turning ideas into property is much weaker when it comes to the securing of patents.

Oscar Chamberlain - 1/6/2004

This tension between Locke and Rand indicates why the original idea behind intellecutal property rights, which was a limited period of exclusive use, was an effective compromise. It encouraged creativity but guaranteed that the creativity would enter the common culture.

However, long-lived corporations want long-lived intellecutal property rights to match. The potential result is intellectual impoverishment.

(Or at least some major irritants. I am getting afully tired of seeing trademark markings popping up in the body of writings. One can imagine an near-future electronic world in which every word is hyperlinked to its maker.)