Is Intellectual Property Itself Unethical?

from the making-the-argument dept

For many years I've argued that the economics of abundance is not a moral issue. This is in response to the typical moral and ethical arguments in favor of things like excessive copyright or patent law, with normative claims about how we must protect artists' or inventors' creations for moral reasons, in that it would somehow be "unfair" to have others make use of their creations or inventions. My argument, in response, has always been that the role of morality is in determining a different level of fairness, it's determining the allocation of harm. In other words, moral questions come up when there is a choice over who gets harmed. If you're in a situation where no one gets harmed, then there should be no moral question. So, in approaching an issue like intellectual property, my argument is that if you can create a solution in which the economics allow a greatly increased opportunity for everyone, then you preempt the moral question. Since everyone has a chance to be better off, if you understand the economics and apply it properly, then the only issue is one of economics -- how to best achieve that goal -- rather than morality.

However, if it's true that by doing away with the idea of intellectual property, you create greater opportunities for everyone, could you make the argument that intellectual property laws themselves are immoral or unethical in that they are actually what makes everyone worse off? Could you make the argument that by restricting the use of certain resources and restricting freedom of expression, those laws lead to unethical limitations? Put another way, if intellectual property is causing actual harm, then you could make the claim that there is a moral issue in discussing them -- in that the laws of intellectual property, by themselves, are immoral. That is, if taking away IP causes no direct harm, then there's no moral issue to discuss. But, if leaving them in place does cause harm, then that is a moral issue worth considering.

It's really not something that I had thought about, but Stephan Kinsella points us to a recent talk given by David Koepsell, who not so long ago wrote a book, Who Owns You?, all about the serious problems in patenting genes. I've actually had a few email conversations with Koepsell over the past few months, and it's worth paying attention to what he has to say. He's very deliberate and careful in his work, supporting his positions with deep levels of analysis and evidence. This talk appears to be a new area that he's taking on, trying to make the case that all intellectual property is, by its very nature, unethical: Now, I will be the first to admit that the talk itself is a bit dry at parts and rough around the edges, and at times seems to go off on tangents. But it certainly has some potential. The argument uses different language than we use here to describe some points, but they map back to the points we discuss on a regular basis pretty easily. He talks about the difference between real property and intellectual property, in that real property concepts predate the law -- predate "institutions" -- because of the brute facts of the situation. If you possess a physical good, there need not be any law saying that you are excluding others from using it. You have it. But if it's an idea or an expression, you need an institution or a law to try to exclude it from others. Effectively, he's distinguishing between what we refer to as scarce goods and infinite goods. Scarce goods, by their nature, are rivalrous and excludable. Infinite goods are not.

He also discusses that the concept of "the commons" is too simplistic, and that there are different kinds of commons. Again, there are the commons that are created through legal or institutional necessity -- such as national parks or the highway system. Without the institutions, then others would likely claim that land via possession. Keeping them as a commons is the legal attempt to avoid a "tragedy of the commons," where that property is allocated inefficiently. But, he argues, there's another type of commons as well: a commons that itself is normal that cannot be enclosed and possessed outside of the law. And that includes things like your genes, or any expression. He refers to the former as a "commons by choice," and the latter as a "commons by necessity," which is an interesting concept.

Thus, the key argument he makes is that intellectual property is an attempt to lock up the "commons by necessity," in the false belief that it is the same thing as the "commons by choice." And while he doesn't directly make this final point, what's clearly implied is this: the purpose of a commons-by-choice is to avoid the tragedy of the commons and to better allocate a scarce resource by letting everyone share it. But when we try to take a commons-by-necessity and pretend there's a tragedy of the commons when it might not exist, we actually make the allocation of resources significantly less efficient. And making a choice to limit the efficiency of a space -- such as by limiting your rights to expression or your rights to innovate or, perhaps worst of all, the rights to your own genes, you are creating harm -- and that harm is immoral.

It's definitely an argument worth considering.

Filed Under: david koepsell, ethics, intellectual property, morality