This article was originally my half of a November, 1983 debate, at a supper club meeting of Los Angeles-area libertarians, on the question “Is Copyright A Natural Right?” I revised my debate presentation for publication as a booklet published on December 2, 1983 under the title TOWARD A NATURAL RIGHTS THEORY OF LOGORIGHT and, on March 16, 1989, for on-line publication through the Connected Education(r) Library, but it is still helpful to understand that these arguments are largely directed to libertarians who already agree with the fundamental concepts of natural rights, or at the very least presume a sympathy with libertarian and natural rights philosophy and philosophers.
It is generally thought that discussion of rights is a political or ethical issue. In fact, the argument must begin at the level of basic epistemological and metaphysical premises and proceed from there.
Antebellum debates on slavery hinged on the question of whether Blacks were People, thereby having rights, or whether Blacks were only animals, and therefore could be the property of People. Political analyses were being made by Southerners in which they attempted to demonstrate that, economically, slavery was good because it benefited the Southern economy. And even moral debates hinged on the metaphysical question: if slaves weren’t people, but were animals, then what could be morally wrong in owning them?
It did no good to discuss the morality or economics of slavery until one had arrived at the simple metaphysical fact that skin color does not definitively answer the question: What is a Human Being?
Moral and political questions often hinge on such differing perceptions of reality. This is one reason such discussions are often so heated: differing premises at these levels will make one question the sanity and logical faculties of someone who disagrees with one’s own obvious conclusions. The feeling for someone who has a divergent vision of reality is: “He must be blind or crazy if he can’t see something as clear as daylight!”
So it is that on an issue involving “rights,” one feels an opponent is not merely wrong, but unbelievably wrong. Even among professed advocates (and practitioners, one hopes) of reason, it makes it hard to understand how one who disagrees can be so obstinate on so easy a question.
That there are disagreements about natural rights even among strict advocates of them proves that the question is harder than we might have originally thought.
Therefore, let advocates of human rights not trade insults, but get down to the business at hand, which is establishing the premises from which we’re arguing. Then one can either see whether our views are fundamentally incommunicable to another, or find basic agreements and proceed from there.
I’d like to start off with an image to have in your minds during the course of this article–and this image is a mnemonic–a memory aid–for a point I want you to remember.
You’re in the Land of Oz, and you come across Dorothy, Tin Man, and Scarecrow at a fork in the Yellow Brick Road leading to the Emerald City. Dorothy is arguing to go down one fork of the road, and Scarecrow is arguing that they go the other way. After the debate between Dorothy and Scarecrow has gone on pointlessly for what seems an eternity, Tin Man turns to Dorothy and says, “We’re never going to settle anything this way, Dorothy. Don’t you realize that you’re arguing against a Straw Man?”
Now, I didn’t say that just to make an atrocious pun–I want you to keep that image firmly in mind, and I think this will help. The reason I started out with this mnemonic–this memory aid–is that I don’t want to have to answer or defend all the theories of “intellectual property,” “copyright,” and “patent law” that I will not be advocating herein.
So let me start out by stating what I am not talking about, when I advocate what I will eventually be defining as “logorights.”
- I am not talking about a grant of privilege from the State. If it can be demonstrated to me (but I don’t think it can be) that the only way the concept I am advocating can exist is through the State granting it as a privilege, then I will concede outright that it has no place in natural rights theory or practice, and the concept should be abandoned.
- I am also not going to be talking about a defense of ideas as property, or defending what historically has been called intellectual property. Whatever the merits of these concepts, they are not part of the concept I am going to be putting forward here. Therefore, any attack on “logorights” which involves disproving the validity of ideas as property or intellectual property will be arguing against a Straw Man.
What I am going to be doing is to put forward what I believe to be a new and original concept of copyright–a word which I’ll be replacing in a few hundred words as inadequately defined for the concept I’m really advocating.
III. Defining A New Concept
There are two kinds of definitions that can be given. The first way to define a concept is with a lexical definition–that is, with a definition by other words, such as you’d find in a dictionary. The second way to define a concept is with an ostensive definition–that is, with a definition abstracted by pointing out with several examples just what it is you’re trying to define, and demonstrating what is common to each example and can therefore be induced from the examples as an isolated concept. With a new concept, it’s always better to give the ostensive definition before the lexical, so you can get an idea of some of the contexts in which the new concept appears. So before I give you a dictionary definition of this new concept, I’m going to define it by example several times.
Hardware and Software (#1)
I think the best first example is to be found in the following question: Is computer hardware the only thing that can be property, or can computer software be property also? And I’d better define those terms for those of you who aren’t familiar with computer jargon. In computer terminology, hardware is the computer itself and all the machinery used with it–the microprocessors, the disk drives, the monitor, the printer–and software is all the recorded orderings of bits–recorded information signals–that you feed into the machinery to make it operate. And let me be exact in my meaning: because a computer diskette–a round piece of plastic with a magnetic coating–is what software is usually stored on, it is common use to refer to computer diskettes as “software”–but really, the diskette is hardware, too–and the information on it is actually the software.
If you don’t believe me on this last point, then listen to the language that comes out the mouth of a computer user who plunks down several hundred bucks for a package of diskettes labelled “Wordstar” that the salesman said contains information telling the computer to do word processing, if, when the user gets it home, she discovers that she’s just purchased two diskettes with random, meaningless characters. Is it the diskettes themselves that the user has just paid three hundred bucks for? If so, she just got overcharged by several hundred dollars–she can buy a package of blank diskettes for around ten bucks.
Atlas Shrugged (#2)
Okay, here’s my second example: the same concept in a different context.
You go into a Waldenbooks and plunk down cash for a book that says on the cover “ATLAS SHRUGGED by Ayn Rand.” You get it
home … and the first sentence is, “It was the best of times, it was the worst of times.”
Now, what you bought is a book and this book has got everything that makes a book a book: a binding, hundreds of sheets of paper with printed ink impressions on it, and a cover. Let’s even pretend that the book you took home has the same number of pages, the same dimensions and weight, the same binding and style of printing as the book with the composition called ATLAS SHRUGGED. Do you have any just cause of complaint if the
composition of words inside the book turns out to be something other than what the cover says? If you answer no, then you got everything you paid for. But if you answer yes, then you are saying that the composition of words makes this book a different commodity from the book you thought you were buying, and therefore you are rightfully entitled to a copy of the composition of words labelled ATLAS SHRUGGED.
Next definition by example: A college student figures out a way to put together a few commonly available hardware items into a cheap device that moistens stamps without having to lick them. Nobody ever has put together these commonly available items in this configuration before. Has she invented anything? Is there anything new that didn’t exist before? Has she, in effect, performed an act of creation?
Last example: An artist does a design logo for a company’s product–let’s call the product a stamp moistener called Stamplix. Stamplix stamp moisteners are put on the market with that design logo on it … and two weeks later the company’s competitor puts that same Stamplix logo on a different type of stamp moistener they’re marketing in competition. Is that second company violating anybody’s property rights?
Lexical Definition: "logos"
Now you might have already abstracted the concept from the examples–but I have to assume you haven’t for the sake of completeness. In the first case–software–what I was discussing was orderings of bits; in the second case, the composition of words in a book; in the third case, a new configuration of materials; in the fourth case, an identifying mark. And, what is common to each of these is “logos.”
“Logos” was a word used by the ancient Greeks. In fact, logos was the word the Greeks themselves used for “word.” But they meant a good deal more than that: logos meant not only “word” but also “thought,” “speech,” “science,” “study,” “reason” and “rational principle.” Logos meant the pattern of creation manifest in the universe–what we libertarians might refer to as the principle behind natural laws and natural rights. Later on, the Christians adopted Logos to mean the Second Person of the Christian Holy Trinity–identified by them as Christ when according to them he visited Earth–and the Gospel of St. John accordingly starts out, “In the beginning was the Word, and the Word was with God, and the Word was God.” Logos meant “knowledge.” It’s the root behind the suffix “-ology” found at the end of biology, psychology, technology, ornithology, herpetology, and radiology. Logos is the root word behind “logic.” Logos is also preserved in the modern words “logistics,” “logarithm”, and “logo”–short for a commercial logogram. In using the word “logos,” I’ll be going back to what is meant by all those usages, all of which refer to an observable order, array, pattern, form, or identity to be found in the Universe.
By logos I mean exactly: an order, array, pattern, or form of information which can be imposed upon or observed in a material substance: specifically, a thing’s material identity.
It is the logos of bits imposed onto a blank computer disk that makes it software. It is the logos of words in a book that makes it a novel. It is the logos of an object to make it perform a particular task that makes it an invention. It is the logos of a mark that gives it the ability to identify a particular product. And it is property rights in logos that I’ll be advocating in this article.
Earlier I mentioned that the word copyright is inadequate to define the new concept being advocated: property rights in logos. The new word I’m going to use for property rights in logos is, as promised before, “logoright.” Now, for me to defend a particular kind of property right as being a “natural” right relating to the concept of identity, we need to understand, (1) first, what do we mean by “identity”; (2) second, what natural rights and property rights are in general; (3) third, what property is in general and how it comes to exist; and (4) fourth, how property rights are established and what they mean in practice. Only after that ground is cleared is it possible for me to get to the case for logorights in particular; but by that point, the logoright case will be seen as only one instance of a general theory arguing that ALL property rights derive from Identity.
IV. Things and Their Observers
Metaphysics as a study questions as one of its subjects what constitutes an entity and what constitutes its identity, or to phrase it more colloquially, what a thing is and what is its “thingness.” Epistemology asks how we can know whether and what a thing is. Where one begins and the other leaves off is the main event in the history of philosophical debate.
Let’s start with several divergent views:
- Platonist View: In the Platonist view, identity is not an attribute of a material entity but, merely or not, an attribute of a Soul, or Ego, or Mind viewing and manipulating this universe in which we exist but not itself being a part of it. Existence does exist but it is only the faculty of Reason that breaks existence down into “identifiable” parts. If a soul/ego/mind perceives a pattern on a thing, the perceived identity fundamentally remains an attribute of the soul/ego/mind, rather than the thing itself which is merely a poor copy of the Original. Identity in this view resides not primarily in those Things that Exist, but to the Consciousness which is apart from Existence.
- Nominalist View: The Nominalist view would be the same view of Identity as the Platonists, except that the Consciousness in question is part of Existence. But in any case, “identity” still refers to the observation rather than that which is observed: existents still have no identity of their own, apart from identifications made by souls, or egos, or minds.
- neo-Aristotelian View: The view to which I subscribe, which I would classify in this respect as Randian, neo-Aristotelian, or “Objectivist,” is that Identity is a fundamental attribute not of Consciousness as such, but of an Existing Entity, whether or not a soul/ego/mind chooses to perform an act of identification of that Entity. This is my understanding of what Identity means: that the thingness of a thing is not only that it exists independent of our senses, but that each entity has a specific nature, with specific attributes and features, that makes it what it is independent of our senses. Whether or not a soul/ego/mind is part of existence itself is moot: in either case, a soul/ego/mind may impose an attribute on a thing, and thereafter that attribute is an attribute of the thing itself: something which can be observed, by that or any other soul/ego/mind, as an objective attribute of that imposed-upon entity.
Continuing: if an entity has within its nature specific attributes that are its identity, then either:
- (I) One or more of those attributes can be observed in or duplicated onto another entity, making them in that respect identical; or
- (II) An attribute cannot exist twice or more, or be duplicated: no two things could share any attribute, and therefore each existent would be in all respects a different entity from every other existent.
Since, obviously, (II) reduces to epistemological absurdity instantly (if no attributes may be duplicated or shared, we would have no way of inducing universal concepts from reality at all), then logically an attribute, or attributes, can be duplicated. And if all attributes are duplicated, we now have two existents which are, for all intents and purposes, the same thing: two separate existents are in the respect under consideration, the same entity. They are identical.
Some corollary premises follow:
- Corollary One: There are fundamentally two things a consciousness can do with an entity: observe it, inducing universals which construct percepts and build into concepts; or, it can impose new attributes in that entity.
- Corollary Two: If a new attribute is imposed on a thing, that thing, in that respect, is different from the way it was before.
- Corollary Three: If a new attribute imposed on an entity changes the fundamental nature of an entity, it becomes a new entity entirely.
- Corollary Four: In the case that a particular attribute, or set of particular attributes, defines what a thing is, that attribute or attributes define what is the thing itself: they are that entity’s identity.
- Corollary Five: Impose this identity on a thing, it becomes an entity of that identity: a thing of that type. Remove that identity, it is no longer that thing.
Now the metaphysical question on which answer my logoright position will later rest: Are two separately existing Entities, sharing the exact same Identity;
- (A) identical in themselves (that is, metaphysically the same Entity, though observably not the same Existent, since each exists apart from the other), or
- (B) not identical in themselves but identical only to the consciousness that perceives them.
I see the answer is necessarily (A), for the same reason that I rejected the view that an attribute can’t exist twice or be duplicated: if no two existents can share any attribute, and therefore each existent is in all respects a different entity from every other existent, then we would have no way of inducing universal concepts from reality at all: epistemology itself, by failing to answer the problem of universals, would reduce to chaotic absurdity.
I also believe that answering (B) at this point, even starting with Objectivist premises, makes one, for all practical intents and purposes that follow on this question, either a Platonist or a Nominalist. That may be all well and good when discussing realities beyond our experience, but it is to the
“neo-Aristotelians” or “Objectivists” that I will be directing the remainder of my argumentation, for I believe that regarding the universe we find ourselves within as anything less than real leads one quickly to a philosophical discussion suited only to the Afterlife … which is where denying everyday reality delivers one rather quickly.
V. Natural Rights and Property Rights
Natural rights and property rights theory has a long history of development, but it is my purpose here to define natural and property rights then move on, not trace their history.
And, the best short definition of natural rights and property rights I can give you is to be found in five paragraphs from Ayn Rand’s essay, “Man’s Rights,” in the book THE VIRTUE OF SELFISHNESS–Copyright 1963 by The Objectivist Newsletter, Inc., and reproduced here under the Doctrine of Fair Usage:
A right is a moral principle defining and sanctioning a man’s freedom of action in a social context. There is only one fundamental right (all the others are its consequences or corollaries): a man’s right to his own life. Life is a process of self-sustaining and self-generated action; the right to life means the right to engage in self-sustaining and self-generated action–which means: the freedom to take all the actions required by the nature of a rational being for the support, the furtherance, the fulfillment and the enjoyment of his own life. (Such is the meaning of the right to life, liberty and the pursuit of happiness.) The concept of a ‘right’ pertains only to action– specifically, to freedom of action. It means freedom from physical compulsion, coercion or interference by other men.
Thus, for every individual, a right is a moral sanction of a positive–of his freedom to act on his own judgment, for his own goals, by his own voluntary, uncoerced choice. As to his neighbors, his rights impose no obligations of them except of a negative kind: to abstain from violating his rights. The right to life is the source of all rights–and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has to sustain his life by his own effort, the man who has no right to the product of his effort has no means to sustain his life. The man who produces while others dispose of his product, is a slave. Bear in mind that the right to a property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it. It is the right to gain, to keep, to use and to dispose of material values.”
Now, Rand uses two phrases in the section I just quoted which give us the beginnings of what property is and how it comes about. So I’ll focus on these then expand on them in detail. (1) The first phrase, when interpolated slightly, is: the product of a man’s effort. (2) The second phrase is: material values which are gained, kept, used, and disposed of. And these two phrases lead us right into the discussion of what property is and how it comes into existence.
VI. The Creation of Property
What does it mean to say that property is the product of a man’s–or using a word I prefer, a Person’s–effort? Do we mean property is that which a Person “creates”? If so, we need a concept of “creation.”
We are told, by physicists and chemists, that we live in a universe where matter and energy can be neither created nor destroyed, but only changed. This change may include the transformation of matter into energy–or theoretically energy into matter–but existence does not allow us the possibility of creation ex nihilo–out of nothingness. If we start with this premise then it becomes curious–at the very least–how human beings have talked casually for quite some time about how anybody “creates” anything. Why do we speak of engineers “building,” musicians “composing,” architects “designing?” Each of these speaks of people, by their actions, bringing into existence something that wasn’t there before.
Here’s where the concept of logos comes into play again. Creation is a Person’s action which imposes that Person’s logos on something which exists to give that thing a unique identity it did not previously have.
The fundamental act of creation is the act of patterning a logos on something: patterning notes into a musical composition, patterning words into a novel, patterning bits into computer software, patterning ink into a blueprint, patterning steel into an automobile, patterning images and sound into a movie, patterning furrows into a farm, patterning flour, water, and yeast into bread. There are, of course, questions about greater and lesser orders of logos that can be brought up now. But I am not arguing that every act of creation is on an existent that previously had no identity at all. I am merely saying that the act of creation is the act of imposing an aspect of a Person’s identity–a
logos–on something to give that object an identity it did not previously have.
VII. The Thermodynamic Paradigm
As a paradigm, but one which I think is useful only in proper context, let’s consider creation in thermodynamic terms as a localized and continuing lowering of entropy. Entropy is that universal process which takes things from a state of greater improbabilities to a state of lesser improbabilities–commonly thought of as the decay of order into chaos.
Creation–the act of imposing on natural objects a logos not naturally found–is the act of moving things from a state of lesser improbabilities to a state of greater improbabilities.
Some specific examples: iron and carbon are both elements found in nature–in fact, iron ore can contain carbon in large amounts. But steel–which requires the combining of a specific ratio of iron to carbon at specific temperatures for specific spans of time–is rarely if ever produced by the automatic processes of nature.
If you make iron and carbon into steel, the resulting substance is much less probable–therefore it is tempting to use the language of thermodynamics and say that an act of taking iron and carbon and creating steel is lowering the entropy of that iron and carbon. If you take that steel, and press it into rectangular sheets of even thickness, length, and width, the result is even less probable–therefore it is tempting to say that the act of finding steel and creating sheet metal out of it is lowering the entropy of that steel. And, if you take that sheet metal, form it into the body of an automobile, and paint it so the steel doesn’t rust, the result is less probable still, and it is tempting to say that the act of taking sheet metal and creating painted auto bodies is lowering the entropy of that sheet metal.
One should resist the temptation. Taking the “lowering entropy” argument too far into the area of physical thermodynamics runs one quickly into problems of both fact and theory; the comparative “entropy levels” of a car, a piece of junk, and a chunk of ore are incalculable. Nevertheless, I believe the “entropic” paradigm of regarding creation as a “calculable increase in improbability” is sound within the context of information theory, where one discusses the “entropy” of a signal; and, in fact, I’m told there are existing formulas, used by the Search for Extra-Terrestrial Intelligence (SETI), to calculate the “improbabilities” of a signal being a “natural” occurrence as opposed to being artificially generated “information.”
Unless one accepts a “Watchmaker” argument about the creation of Earth–that in fact what we believe to be nature is in fact the artifice of an earlier Creator–bridges are less probable than rivers, symphonies are less probable than bird-songs, and houses are less probable than caves. But regardless of whether the Watchmaker under discussion is mortal or deity, engineers, composers, and architects each make their surroundings more improbable of existing than it would be without their intervention.
For example, scientists know that Mars has water, so a Martian river isn’t all that improbable; but photographic evidence of an artificially constructed bridge across such a Martian river would double the number of planets in the universe which we would know to have hosted intelligent life … likely to be, even without cynicism, one of the most improbable things found.
Specifically, then, creation is the act of patterning less improbable substances and objects to produce things more improbable of having resulted from the automatic processes of nature.
VIII. Defining Property
Now, the only sort of creation we’re concerned with in this discussion is the creation of property–and we find that “things rarely if ever produced by the automatic processes of nature” is a good jumping off point for defining property.
What we may, in one sense then, define property as is: that which a Person makes improbable enough to be generally recognized as an “artifact.”
If you then compare this definition with the two phrases drawn from Rand–the product of a man’s effort and material values which are gained, kept, used, and disposed of–you find no contradictions and a good deal of implied overlap.
Now I want to focus on Rand’s phrase “material value” long enough to point out the following: Rand’s definition of “value” is “that which one acts to gain or keep” and a material value would by her definition be “something material which one acts to gain or keep.”
Since the question of materiality is one which will come up again later, I wish to point out that Rand’s use of the word material in this context did not prevent her from referring to as property things not comprised of matter such as radio frequencies, in her essay “The Property Status of Airwaves” in CAPITALISM: THE UNKNOWN IDEAL or patents and copyrights in “Patents and Copyrights,” her very next essay in that book.
Before I leave the area of defining property, I wish to bring out what libertarian property theoretician Robert LeFevre used for his tests in his book, THE PHILOSOPHY OF OWNERSHIP.
LeFevre asked three questions:
- First, is that which is said to be property claimed by someone?
- Second, does that which is said to be property have boundary limits?
- And third, is that which is said to be property under an owner’s control?
And these lead us to the next discussion necessary before we get to logorights:
IX. Establishing and Using Property Rights
Let me quote once more Rand’s statement on property rights:
“Bear in mind that the right to a property is a right to action, like all the others: it is not the right to an object, but to the action and the consequences of producing or earning that object. It is not a guarantee that a man will earn any property, but only a guarantee that he will own it if he earns it.”
Therefore, a property right by its very nature refers to an action with respect to a property.
The question arising in the establishment of property rights is: what actions are required to gain rights with respect to that property?
And, the definitions of property we’ve already discussed provide (in no particular order) the following answers to the establishment of property rights:
That which is to be your property must be valued–that is, you must act to gain or keep it.
That which is valued as your property must be claimed as property–that is, it must be publicly available knowledge that you are declaring it your property.
That which is being claimed as property must in some sense be a product of human effort. It must be created–that is, a Person must take it from a state of lesser improbability to a state of greater improbability.
The claim to the property must be defined within observable boundary limits.
And, the property must be subject to the control of the person claiming it.
The question arising once property rights have been established are: what actions is the owner permitted respecting that property?
And, the question of what actions the owner is permitted respecting that property are dependent on the question: what rights specifically does the owner have in this property?
The best way to show the import of this is to give some examples:
- Do I have the right to build a house on this lot and live in it?
- Do I have the right to raze the building on the next lot over and build a three-car garage?
- Do I have the exclusive right to use this driveway, or is there a public right-of-way?
- Do I have the right to eat this sandwich?
- Do I have the right to divert this stream so the water doesn’t flow to the next parcel of land?
- Do I have the right to broadcast radio signals on a certain frequency, at a certain power output, from a certain location, during certain times of the day?
- Do I have the right to take this book home from the bookstore–and what may I do with it when I get it home?
Note than none of these actions requires the property itself to be anything: the property right–being a statement referring to the definitions of moral action–adheres not to the property, but to the owner and actions that owner may or may not take with respect to that property.
One last set of property rights concepts, and then we’ll be ready to discuss logorights.
X. Exclusive Use, Consumption, Bundles of Rights, and Properties
From the instant a property is created and claimed by a Person, all rights to that property are held by that Person–who I’ll refer to as the property’s First Owner. Since property results from an act of creation, it should come as no surprise that the answer to the question of what an owner of may do to a property includes its consumption. Ultimately, an owner may exercise property rights to the complete destruction of that property, without the consent of anyone who does not share rights in that property.
Again using a thermodynamic paradigm, it would be tempting to say that the entire process of owning property begins with a lowering of its entropy, continues with maintaining its entropy at a level relatively lower than that of the natural substances from which it is made, and ends with consuming that property until its entropy is as high as the condition in which its First Owner found it–at which point it is consumed entirely and ceases to be property as such.
What ownership of a property means is that all rights to exploit, consume, keep unconsumed, control, destroy, trade, or otherwise decide the ultimate disposition of a property may be made by its owner without sharing the decisions regarding the property–or its benefits–with anyone else. That property–by its very nature–is owned to the exclusion of all non-owners: any use of that property by anyone other than the owner requires the owner’s permission. When an owner creates a property, that property is totally and exclusively its owner’s.
Here we have the necessity of property rights to begin with: the origin of property rights stems from the need of adjudicating conflicting claims about the exclusive use of something. Since a property can only be owned exclusively, property rights are the means of determining who holds the exclusive claim on that property.
Utilitarians argue that these claims should be adjudicated for the benefit of society as a whole: “the greatest good for the greatest number.” The utilitarian premise is at the base of all non-theistic political systems: democracy, republicanism, communism, fascism, socialism, national socialism, and militarism. Even the worst dictator claims to act in the best interests of “the people” or “the will of the blood” or “the proletariat” or “the folk.”
Libertarians, on the other hand, say that property rights adhere not to society but to the individual Person, arising out of the specific nature of humans having to control their material environment in order to survive as rational beings. To survive, a human being must be able to control the environment–that human being’s domain. To control that domain, the human being must identify the nature of each existent in the environment, and arrange them all in such patterns that they contribute to the purposes of survival and well-being.
Since the right to pursue survival and well-being is distributed universally, no good or utility to one person or group can be greater than the good or utility of any other person or group. There is no possible “calculus” of good that can say that one person’s or group’s rights outweigh another’s; a right is a moral absolute allowing no exceptions or head-counting. The necessity of property being, by nature, exclusive stems from the necessity of dedicating an object to a specific function–giving it a form to perform that function–and having some security that the form to perform that function will not be interfered with by someone else. And, this is precisely what the act of creating a property is: the act of imposing a new form on something found in a more probable condition to dedicate it to a function that is highly improbable of being performed without that imposition.
The creation of property, therefore, is an act necessary to human survival–and as such the requirements of our survival as human beings sanction our taking those actions, and those sanctions are called rights.
Now, because the first ownership of any given property is total and exclusive ownership, the owner can dispose of the property in any fashion that owner sees fit. The owner can choose to abandon the property–in which case it reverts to a state of not being owned anymore. The owner can choose to sell the property. The owner can choose to break up the property into smaller parts, and sell those parts. The owner can turn it into junk–then call the junk art.
Switching context to the first definition of “property” found in WEBSTER’S COLLEGIATE DICTIONARY–”a quality or trait belonging to and especially peculiar to an individual or thing”–it is correct to say that this property consists also of its constituent “properties.” And we can see from this first definition how use of the word “property” as something belonging to an owner came about: that which was owned was thought of as a quality or trait–a “property” in the first definition–of the owner itself. Therefore, it is etymologically correct to refer to each property–each quality or trait adhering to that which is owned as a whole–as a property as well.
This leads us to the additional possibility that an owner may choose to break the property down into its constituent properties–that is, each of the various qualities or traits adhering to the property as a whole–and sell, as a separate property, the right to exploit that quality or trait. When this is done, a property is said to be made up of a bundle of rights which are then broken into distinct and separable rights–each separate right referring to a separate action that can be taken with respect to the property in question.
Two cases showing how “bundles of rights” are dealt with in respect to land use will illustrate this.
 First case:
If I own a parcel of land outright, then I own all the rights–the entire “bundle”–in that parcel of land, and I may exercise any and all of those rights as I see fit. As I’ve said, this is the situation enjoyed by a property’s First Owner or creator.
 Second case:
However–and this is a big however: a previous owner may have broken up the bundle of rights on her parcel of land–the bundle of rightful actions that may be taken with respect to that land–and sold me only the single right to build a house on that land. The right to dig a coal mine there can be owned by someone else. In this case, then, the rights to the various actions that can be taken with respect to it have been divided up by quality or trait among more than one owner–and the owner of each particular property right must exercise that right in such a way that it does not interfere with rights held by other rights-holders. The various discrete properties taken from the original property are still owned exclusively–but the original property itself is no longer under the exclusive domain of a single owner. We are now ready to ask whether there are, in fact, property rights in logos–whether logorights can be property.
XI. Does Logoright Exist?
Earlier in this discussion, I referred to the necessity of imposing a logos on material objects as a precondition to creating them as property.
That is not the question under discussion.
Having established that an object receiving an imprint from a Person’s logos becomes that Person’s property–has it been established as well that the logos which the Person is imposing also can be owned as a separate property?
The answer is yes.
Here’s how it happens.
When a logos is imposed on matter, creating a new property, the logos becomes a material quality of the property it is imposed upon. Simultaneous with the creation of a new property, the logos becomes the trait of that property to display the logos itself, which includes the possibility that the logos can be copied onto other matter and make that property as well.
Starting from the creation of a new property, the First Owner has total and exclusive ownership of that property and all its different parts, qualities, and traits: all its different properties.
One of the properties included in this total ownership of the created property is therefore the logos itself.
Consequently, if the First Owner–or any subsequent owner of the total property–decides to break the property into bundles of rights–and maintain ownership of some of those rights while selling others–this is perfectly within that owner’s prerogatives.
Now, this next point is crucial:
Placing any restrictions on how the owner may dispose of the property–or its constituent properties–would deprive that owner of the exclusive and total ownership which belongs to a first owner.
You cannot attack the rights of a total owner to divide up rights to that property without destroying the concept of property being exclusively that owner’s.
And, a property right not exclusively owned is not a property right at all.
Once the property is broken up into separate properties–each property requiring a separate right to exploit that quality or aspect–each property right from the original bundle of rights can be traded separately.
Remember: rights–being moral sanctions of what action a Person may take with respect to a property–adhere not to the property itself, but to the owner.
If you declare that property rights are inherent in the property rather than in the owner, then you are reduced to the absurdity of saying that property–apart from the actions of its owner–is capable of committing moral or immoral acts.
Thus, is is perfectly within the prerogatives of that owner to maintain ownership to the rights in the logos–the logorights–in that property, by valuing it, claiming it, defending its boundaries, and continuing to control it.
XII. “Four Tests of Property”
Let’s take those four points one at a time.
 Logoright Value
First. Is the logoright of value?
Yes. Remember Rand’s definition of value: that which one acts to gain or keep.
The owner has either created the logos–thus demonstrating that it is something worth gaining–or the owner maintains ownership in it–thus demonstrating that the logoright is something worth keeping.
If you say the logos doesn’t have value, then why does imposing a logos on two dollars worth of computer diskettes make them several-dollars worth of software?
A blank diskette and a diskette with a logos of information on it are two separate goods with two separate qualities: two different properties which can easily be told apart.
Perhaps you can’t tell those diskettes apart by looking at them, but my computer surely can: if I stick in one diskette with a certain logos of information on it, the computer’s display gives me an OPENING MENU. When I stick in a blank diskette–otherwise identical–it says: NOT A VALID SYSTEM DISK.
And if a logos has no value as a separate property from that object which it is imposed upon, why would you be upset it you brought home the book you thought was ATLAS SHRUGGED and found that the first sentence was not, “Who is John Galt?”
To state the principle explicitly:
If a logos has no value in itself, then removing it from the objects on which it is found should make no difference in the values found in those objects.
As a corollary: the value of the logos is demonstrated by removing it from an object and seeing whether that object is valued as a separate good or commodity.
 Logoright Claim & Titles
Second. Does the owner claim the logoright?
Yes: and here’s where the term copyright may be used exactly for once.
Copyright is a claim of a logoright–and the claim is made by embedding what is called a “Copyright Notice” onto the logos being claimed–putting anyone finding that logos on notice that the property rights in logos are owned and not open for a new claimant.
The nearest equivalent in common law requires the posting of No Trespassing signs on land if you wish to preserve the exclusivity of your property rights to prevent the land from lapsing into being a public thoroughfare.
I might also add at this point that registration of the copyright is the exact equivalent to the registration of the deed on a piece of land: a formal recorded proof that the property rights are claimed as of a certain date by a certain owner.
Such registration, of course, need not be with a State, but merely with a person, company, or organization generally trusted to maintain such records.
As an example of private copyright registration: the Writers Guild of America maintains an office for depositing copies of screenplays and screen treatments as proof that a certain person had possession of it on a certain date. Such proof is commonly used in private arbitrations, performed by the Writer’s Guild, regarding disputes over rights and credits.
 Logoright Boundaries
Third. Can the owner of the logoright ascertain the boundaries of her property rights–that is, are there limits to that which is being claimed?
The answer to boundaries–limits–on a logos is again “yes.” But–and this is a crucial point to be understood–limits always are dependent on the nature of the property right being claimed.
When one speaks of boundaries of property rights in land, one speaks of dimensions of area.
When one speaks of property right boundaries in the radio spectrum, complaining that there are no boundaries of an electromagnetic wave’s area would be meaningless: in defining the limits of that kind of property, one rightly speaks of limits in an electromagnetic wave’s amplitude and frequency.
And, when one speaks of the property boundaries on a logos, one speaks of the limits of identity, the signal of which is defined and limited by the principles of information theory, and the content of such signal which must be defined by each use to which the information can be put.
In discussing the identity of a logos as a signal, one discusses its limits and boundaries in terms of the minimum number of informational bits necessary to identify that logos as a distinct creation, the resolution of a logos, the threshold of predictability of that logos as against background noise, and other criteria commonly used in dealing with information storage and transmission.
In discussing the identity of the logos as content, one must make a metaphysical argument. Since by definition, each logos has a specific informational identity that differentiates, binds, and delimits its nature–the qualities and traits through which it is capable of being exploited–the boundary limits here are set by its identity itself.
Now, I can anticipate the following question at this point: Since a logos can be copied infinitely without depriving the owner of the original, how can you say that a logos is a scarce resource and therefore an economic good?
The first answer here is: The scarcity of a logos is a function of its being, like all other kinds of property, a product of human effort. Someone had to put work–the scarce resource of human labor–into the production of the logos in the first place–and storing that labor in a recorded form–patterning the logos into a material object as a material value–constitutes the creation of a scarce good–a property.
But the answer here that I prefer to give is: if this logos is so damned unlimited as not to be an economic object–then why do you want to reproduce mine?
The limits on this kind of good are not drawn by its infinite ability to replicate itself, which is a way in which the logos is not limited. However, just as property rights in the radio spectrum are not limited by area but by amplitude and frequency, the limits on logoright are not to be found in its ability to be infinitely reproduced, but in the finite identity to be exploited for its qualities and traits that distinguish any given logos from any other logos.
In terms used by economists, when defining the scarcity of a logos we must look to limits of horizontal competition between different kinds of goods, rather than to the limits of vertical competition within a kind of good.
 Owner's control of Logoright
The fourth and last test: does the logoright’s owner control the logoright?
Most definitely, in three ways:
- The owner of a logos controls property rights in that logos by maintaining ownership of the logoright and “licensing”–that is, leasing–the various rights.
- The owner of a logos, through limiting the license to reproduce the logos, is preserving the integrity of that logos.
- And, the owner of a logos is using that logos as a producer’s good to create consumer’s goods.
You hear libertarians speak a lot about human rights and property rights–but what I’m most used to hearing about–as a working writer–are primary rights and subsidiary rights: hardcover rights, trade paperback rights, mass-market paperback rights, electronic rights, first serial rights, transcription rights, character rights, story rights, merchandising rights, dramatic rights, movie rights, episodic TV rights, live TV rights, radio rights, English rights, and foreign language rights.
Each of these is a separate right in the bundle of rights created with the original property–a separate action to be performed by using the logos–and each one can be sold or licensed separately as the logoright owner wishes.
XIII. “If A Thing Can Be Copied, Then It’s a Thing”
Traditional arguments against copyright have begun by asking how one is depriving a person of her property by copying it and using the copy, since presumably the owner still has the original.
I submit that the first question is not whether someone’s rights are being violated by copying but whether, in fact, anything exists which can be copied.
If a human being isn’t performing an act of creation by imposing an identity on an existent making it a new entity, then there is literally no thing which can be copied in the first place. If there is something distinct and observable which can be copied, the case for it having been newly created by someone is already made, and–to the propertarian who already believes that that which is newly created is the property of its creator–the case for exclusive property rights in that new thing follow directly upon the self-evident axiom of property identity.
Conversely, if there is no identity to speak of, then there is nothing there to be copied that is distinguishable from anything else, and there is no question to debate at all. The pro-unlimited-copying case bites its own tail in saying that that which may be copied without limit does not exist at all, and therefore the argument reduces itself to absurdity.
The rule by which one recognizes an axiom is that if denying something logically requires that itself which is being denied, then that which is being denied is self-evident. Therefore, the pro-unlimited-copying case just reaffirms the axiomatic nature of the material identity of that which is being copied as a distinct entity–material identity being the definition of a logos which I presented earlier in this article. Denying the very existence of material identity as a distinguishable property of a thing leaves no Distinguishing Property to debate further.
Since That which one Creates, Owns, Consumes, Buys, and Sells is an Entity, not merely an Existent, then it is irrelevant that the Identity (thingness, if you will) can be observed in or duplicated onto more than one Material Existent. What a Creator Creates, what an Owner Owns, is an Entity (including that Entity’s Identity) and it is a reductionist argument to a thing’s materiality as an existent, rather than its being an entity having identity, to deny ownership because more than one existent is involved.
The “lack of scarcity” argument fails in not recognizing that the scarcity, on which the concepts of property and economics rest, refer to the scarcity of an entity qua its identity: it is scarce by being limited to its identity. It can be no other. That an entity can be in or on more than one existent is irrelevant to the questions of ownership.
When it comes to questions of identity, the copy IS the original; an entity is an entity: A is A.
One may wish, at this point, to expand the discussion to entities which are similar but not exactly identical, and put forward the position that each copy is a different entity as well as a different existent.
The discussion would then have to continue to take in boundary effects and threshold limits of which attributes define an entity and which do not, but the principle would remain intact. Such boundary problems and threshold effects relate to all questions of ownership and property–otherwise shining a flashlight onto someone’s lawn could be considered, on the face of it, photon invasion of that property. Obviously whether damage is or is not done to the lawn has to be asked at some point: this is what I mean by boundary limits and threshold effects.
It strikes me that the clearest illustration I can give that property rights are dependent on a thing’s identity, not merely on its material existence, is the following question: have I violated your property rights if I pulverize your car, but leave you in possession of every microgram of dust?
Answering no defeats one’s argument by reducing to absurdity.
But if one answers yes, then what one is claiming ownership of was a thing–an entity–and one must claim that by removing the identity of that thing I have violated one’s property rights. This concedes that property rights are bound to the identity, as well as the mere existence, of a property, and if this is so, then does it not follow that the ownership of that property’s identity is as exclusive to its owner as everything else about it?
Thus, to a propertarian, my logoright case is proved by the Law of Identity alone, regardless of whether my further theorizing regarding a thermodynamic model of property-creation furthers my case or does not.
XIV. “Refinements and Objections”
This next section will treat some of the objections to logoright that were brought out both during and after the debate for which this article was originally written, and refine the concept to demonstrate how these objections do not invalidate it.
Objection One: A logos is nothing tangible; it is an idea and therefore not capable of being owned.
Answer: I am answering an objection usually brought against copyrights and patents because these have been defined as the products of ideas, and defended with the concept of “intellectual property.”
But the theory of logorights as presented herein does not treat logos as being a product of an idea: it is treated simply in terms of information which is observable in material form.
“Information”–as a term used in information theory–does not require that which is being dealt with as information to have meaning or purpose; it need only perform a function. Information is a mathematical, rather than a teleological, concept.
As such–speaking colloquially–we’re in a whole new ballgame when discussing a concept of property rights in logos, which is a discussion not of intellectual property” but of “informational property.”
#2: Profit Entitlement
Objection Two: By saying that only the owner of a logoright is entitled to the profits from making a copy, aren’t you denying the profits accruing to the labor of those who copy it?
Answer: Not at all. Copying a logos is a separate act from creating a logos, and must be compensated separately. If I write a logos on a manuscript, I must pay someone if I am to be entitled to their labor in copying it–and if they copy it onto their own materials, I must pay for that, too. This happens every time a manuscript is taken to a quick printing store to make copies.
However, the question really being asked is: doesn’t the labor of copying something entitle someone to the rights accruing to the ownership of the logos?
And the answer to that question is a clear no. That labor is involved in copying something makes no statement and produces no claim over someone else’s property.
If it did, the labor used in stealing a car could be used as a case for transfer of property rights in that car.
Property rights must be determined first, then and only then do questions about the profits accruing to labor done on or with that property arise.
The most exact analogy here to the taking of a property, applying labor, and producing additional properties is that of a factory–let’s say for simplicity that it’s an automobile factory.
The factory as a property is a “producer’s” good, and it is owned by whoever created that factory or the owner’s market descendants. Workers come into the factory and–applying their labor on new materials using that factory–produce the consumer’s good of the automobile.
Would one therefore conclude that the workers own the automobiles they are producing?
If you say that, then you are back to “labor theory of value” and discount the necessity of capital in the production of goods.
Even if the workers were bringing their own raw materials into the factory and producing automobiles, this would not be sufficient to establish their titles over the produced automobiles: it would first have to be established that they had the right to use the factory as a producer’s good.
Likewise, the logos is a producer’s good for which the rights must be obtained before it may be used to create additional goods–whether those goods are additional producer’s goods or consumer’s goods.
#3: Logos vs Medium
Objection Three: How can you say that a logos is a separate property since it can be imposed on someone else’s property?
Answer: the same way that a house can be a separate property from the land it is on.
#4: Independent Invention
Objection Four: What about two or more people who come up with the same invention or story independently? Who owns the logos then?
Answer: As I’ve discussed earlier, creation means the taking of something from a state of greater probability to a state of lesser probability.
To the extent which a given logos of invention or story can be produced independently more than once, to that extent the probability is still great enough to question whether an act of creation has been performed at all.
One of the objections brought against copyrights and patents can be dealt with this way: that a person being sued for infringing on a previous copyright or patent has had the burden of proof in demonstrating that their story or invention is a separate and distinct creation from that which they’re accused of infringing.
Here is precisely a case where information theory provides answers to definitional problems that previous theories were unable to deal with.
By using a process of correlation of the information in each logos, one can find out precisely how much overlap exists between them.
Only if the correlation is proven by the petitioner to be significant enough to warrant a charge of copy infringement would independent creation have to be established as a defense by a respondent. If the respondent succeeds in demonstrating independent creation, then the petitioner’s original “creation” wasn’t inherently improbable, therefore questionable as a unique creation–and therefore possibly not property at all–for either of them.
In a practical sense, however, I think twin logoses of sufficient complexity and resolution to be considered created property at all are about as likely as a million monkeys typing for a million years and producing the play Hamlet.
#5: Random Generation
Objection Five. What about a case where a randomly generated logos is found and claimed as property? Has an act of creation taken place? Can there be property rights in something randomly or accidentally produced?
Answer: Any given logos–to be considered a logos at all–must be, in some sense, unique. The shape of a blade of grass is neither complex enough nor uncommon enough to qualify as a logos. Where a unique array has been produced by random or natural processes–and a person decides, for whatever reasons–that it is worth preserving, it is the act of preserving that array that is the essential act of “increasing improbabilities” which is the definition used herein for the creation of a logos.
#6: Accidental Copy
Objection Six. What about a person who copies a logos accidentally? Isn’t that person potentially a victim of the owner of the logoright?
Answer: This case is exactly equivalent of an accidental trespasser on someone’s land. In common law decisions, it has been determined that land must be clearly posted with No Trespassing signs to remove the liabilities involved in a trespasser coming to harm on your land. The “Copyright Notice” is prominently placed on a logos for the same reason: to warn trespassers that they are responsible for their own liabilities if they violate the owner’s property rights.
#7: Fair Use
Objection Seven. Isn’t the “Doctrine of Fair Usage” you relied on before an admission that the exact point at which using a logos becomes a property violation can’t be determined objectively?
Answer: No. The “Doctrine of Fair Usage” is a legal definition in use under current–and admittedly statist–copyright laws. It is a utilitarian decision that says that so long as the use of part of a copyrighted work is educational or isn’t a significant enough part to adversely affect the market value of that work, it will be considered that the property owner is going to allow this as a courtesy to the public–whether that owner likes it or not. Nevertheless, the utilitarian basis of this decision does overlap similar common law decisions regarding courtesies and rights of access in private lands–which is also a utilitarian decision.
As a strict propertarian, I would have to say that the use of the smallest identifiable part of a logos–that is, identifiable by an objective process such as correlation–requires its owner’s consent. However, as the owner of a number of logoses, myself, I am willing to allow “fair usage” as a general courtesy to the public, which includes many logos owners some of whom have logorights not protected by the State, and I am presuming–until otherwise challenged by a particular logos owner–that such courtesy is also being granted to me. I do, of course, risk having to pay restitution if my assumption of reciprocal courtesy turns out to be mistaken.
++++#8: Restrict Contents of the Mind?
Objection Eight. Doesn’t a logoright restrict the contents of a person’s mind? Are you going to say a logos can’t be memorized–that is, the logos imposed on a human brain? Are you going to then say that a person can’t use the memorized contents of her own mind in any way she sees fit–including the imposition of it on matter?
Answer: Assuming that the logos can be taken intact into a human brain, then that copy of the logos has been swallowed by that person–in the same way that if I take a diamond and swallow it, that diamond ceases to exist as recoverable property while it is in my stomach. In neither case would someone have a right to violate the boundaries of that person’s sphere of self-ownership to retrieve either the swallowed diamond or the swallowed logos.
However, swallowing someone else’s property does not constitute a transfer of property rights, which–being a statement of morally permissible action relating to a property–attach not to that property but to the owner. Swallowing someone else’s property does not constitute in itself a transfer of property rights to that property, even though the owner of the swallowed property may not invade you to retrieve it. Moreover, if while that logos resides within you it stimulates better digestion–that it, aids you in creative efforts of your own–then that good digestion is yours to keep, regardless of whatever rights the logos’s owner may have in the logos itself.
But if the person who swallowed the logos reimposes that logos on outside matter–if the person redraws the blueprint from memory or retypes the novel from memory or reproduces an invention from memory–then the logos to be found in matter must still be regarded as the property of the logoright’s owner: in essence, the person reproducing the logos without obtaining the rights has just regurgitated or passed the diamond again, and the true owner has the right to demand that her property be returned.
#9: Performance 'rights'
Objection Nine. What about the reenactment or performance of a logos–such as singing in my shower? Since I am not copying or reimposing on matter that logos, how can I be said to be violating the logos owner’s rights?
Answer: Logoright is not, per se, copyright–restricting only the right to copy onto matter. Logoright refers to any use of a logos, each use of which is a separate right in the bundle of rights created with the logos.
Again: “right” refers to an action which a person may or my not take with respect to a property.
The right to reenact or perform a logos is a use of that logos, and often–such as with live performances of musical compositions or plays–the rightful use must be licensed from the logos owner.
However, in all the cases of copyright I have ever heard about, I have never heard of someone being successfully sued for singing someone else’s song in the shower. Presumably this is not a public performance?
I suspect the absence of such case law would survive the demise of the State and its copyright laws, to a society which recognizes and enforces the concept of logoright.
#10: History of IP as State Monopoly & Abuse
Objection Ten. Isn’t it a historical fact that as soon as printing presses were invented kings began handing out copyright protection? Isn’t this proof that copyright has always been nothing more than another grant of monopoly by the State, and a privilege that is dependent on the State for its existence? Even today, isn’t it the existence of copyright laws itself that has led to the domination of publishing by a few oligopolies? Doesn’t a value-free analysis of the publishing market demonstrate that eliminating copyrights wouldn’t affect authors much since (a) most books published are for the first time and (b) an author’s royalties are only a small percentage of the price of a book? Since most of the income an author receives comes up front as an “advance,” isn’t it true that an outright sale from an author to a publisher wouldn’t make much difference to the author anyway?
Answer: These arguments were raised by Samuel E. Konkin III in an article titled “Copywrongs,” published in a magazine titled THE VOLUNTARYIST in the year following the debate that sparked this article. Since the editor of THE VOLUNTARYIST at the time was Wendy McElroy, who was the other half of this debate, I took her commissioning of Konkin to write on this subject as a reaction to my presentation. Since Konkin is a long-time libertarian ally, and one with whom I have usually sided on most issues, I found it worthwhile to write a response to his article. THE VOLUNTARYIST did not, however, see fit to print my response. Some of the more general arguments contained in my unpublished reply to Konkin have been incorporated into this version above; the segment that I include here deals directly with Konkin’s arguments, and I’ve eliminated duplication of text used elsewhere in this article. I’ve also updated my reply as necessary. Those wishing a copy of the original “Copywrongs” article can obtain it from Samuel Edward Konkin III, P.O. Box 1748, Long Beach, CA 90801.
Herewith my reply to Konkin’s “Copywrongs”:
“To start off with, I am dubious regarding the usefulness of concentrating on a value-free or even value-laden analysis of copyright until a factual metaphysical question is settled: is that which copyright protects with the status of property rights something which actually exists, or is it, at best, a delusion and, at worst, a vicious fraud? Of course Sam did say that ‘The point of all this vulgar praxeology is not just to clear the way for the moral question. The market (praise be) is telling us something. After all, both market human action and morality arise from the same Natural Law.’ And so I agree with Sam in principle, if not with his application. The question is: what is the natural law here? The answer is: the Law of Identity. But even leaving this aside–if one can leave metaphysical facts aside–Sam’s value-free economic case is standing on quicksand, since he is arguing from empirical observation of current market conditions–a dangerous thing for a libertarian to do, since it can so easily be turned back against us.
“For example, we argue in libertarian theory that monopolies can’t arise in a free market. A liberal then points to existing monopolies. And we retort, ‘We don’t have a free market today to point at–what you’re seeing is monopolies in a state-controlled economy.’ And, Sam would have to agree that the market his empirical case examines is state-controlled, since he’s arguing that the current market is structured by, among other factors, the current copyright laws.
“But, copyright is only one of the many ways the state has intervened into the publishing industry. (I assert that the effect is largely neutral as compared to a purely propertarian marketplace since the state intervention roughly parallels the actual property rights.) In the publishing industry, as in all other industries, there has been endless non-copyright state intervention: limited liability laws, anti-trust suits preventing publishers from owning bookstores, labor laws creating union shops, wartime paper rationing, interstate commerce regulations, obscenity laws, tax laws, postal and shipping regulations, FCC regulations, etc.
“I would therefore caution anti-copyright debaters of a libertarian persuasion to be very hesitant at looking at any current market condition and categorically asserting that any particular factor, such as copyright, is the final cause of any particular market end state, even though–in Sam’s observation that most of that which is published today is for the first time–I believe Sam has, in fact, shown a final cause which destroys his own praxeological case.
“I would also caution anti-copyright libertarians against assuming their conclusion in using anti-monopoly and ‘privilege’ rhetoric against copyright. Arguments against ‘monopoly privilege’ in the exclusive ownership of a logos ignore the fundamental difference between all property rights, which are monopolistic in the sense of being held exclusively, and monopoly practices, which are invasive.
“Moreover, that printing presses and state grants of copyright protection arose at the same time in history is not conclusive evidence that the state was not protecting that which would be considered property in a stateless society anyway. It is only circumstantial evidence of two events coinciding–a ‘coincidence.’ The same ‘argument from coincidence’ could be used against any property right–proper or not–arising from new technology under current state law. Since the state claims the airwaves as ‘public property’ which as a ‘scarce resource’ is licensed ‘in the public interest,’ are we likewise–by the argument from coincidence–supposed to conclude that broadcast frequencies are not potential property?
“But let me focus on Sam’s contention, at the foundation of his economic case, that for Big Publishers, ‘royalties are a fraction of one percent of multi-million press runs.’
“It just ain’t so. Let’s take, as an example, the 1986 Avon edition of my novel, THE RAINBOW CADENZA. The raw manufacturing cost of each book–typesetting, printing, and binding–was roughly $0.60. My royalty was 8% off a cover price of $3.50. This is a royalty of $0.28 per book, or about 47% added to publisher’s cost over manufacturing. Hardly negligible, Sam.
“This is a base cost figure before they start figuring in editorial salaries, commissioning cover art, office overhead, advertising–all of which are start-up costs for an original edition of a book in addition to buying ‘rights’ from the author–before then calculating in markups to wholesalers, shipping costs, percentage of returns, etc.
“Now, consider that without copyright protection–statist or otherwise–four days after a book starts selling well (that’s all it takes to manufacture and distribute an ‘instant book’) any reprint publisher could come out with its own competing edition of a book–at a huge discount since this publisher wouldn’t have to pay any of the start-up costs: royalties, editorial salaries, typesetting costs, commissioning cover art–anything other than pure manufacturing and distributing costs. I expect that the competitor’s copy edition could be put on the market for about half the price of the original edition. The first publisher would be stuck with all the risk and startup costs, then be undersold by half by a competitor’s edition.
“In purely economic terms, what publisher would risk investing in publishing a book knowing that if he or she hits it lucky with a book anyone actually wants, everyone else will get a much-lower-risk return on investment?
“The publishing industry would quickly become a game with One Rule: Let George Do It. If you think a book might make money, reject it. With luck, someone else (somebody real stupid) will take the risk of publishing it first, and you can clean up by knocking off a cheap reprint after it’s been developed and market-tested at your competitor’s expense.
“Thus, all economic incentives would shift from being first on the market with a product, to being second. Original publishing would cease to be a profitable market at all. If, in a market with copyrights, Sam sees the great majority of publishing being first-time, and a much smaller amount being reprint, then this statistical distribution is an effect of the existence of copyright in the marketplace to begin with. Remove this causative factor, making reprint publishing more profitable than start-up publishing, and value-free deductive logic leads directly to the conclusion that the reverse would be true: reprint would be the rule, and original printing would be the exception.
“This structure of publishing in a copyright-free market would be that of a regressive industry, at first largely parasitic on works created before the abolition of copyright (unless we assume copyright never to have existed at all, in which instance there is a case to be made that publishing never would have become an industry at all) and later dependent for its product on those persons not at all motivated by the desire to make a livelihood out of authoring. What would be left to be published would be the works of hobbyists, dilettantes, psychological ‘flashers,’ and preachers. Perhaps this might leave something worthwhile to be published–a work occasionally by a J.R.R. Tolkien–but it would certainly never have produced a Robert A. Heinlein, who started writing to pay off a mortgage. Even the Tolkien case is questionable, considering how offended he was that Ace Books took advantage of the accidental omission of copyright on THE HOBBIT and THE LORD OF THE RINGS to reprint his works without his permission.
“Thus, beginning by denying the Law of Identity and the specific nature of that which is being written and published, Sam ends by eliminating both authorhood qua work and publishing qua industry. Just as C.S. Lewis demonstrated how denying the existence of objective referents for standards of subjective-valuation would logically result in the Abolition of Man, the logic of praxeology demonstrates how denying the objective identity of a Created Work would logically result in the Abolition of Creative Industry.
“And if, as Sam states, that ‘both market human action and morality arise from the same Natural Law,’ then my praxeological analysis should give one a pretty clear indication that my case that copyright is protection of natural rights in logo-property (primarily a metaphysical, rather than moral, case, since I’m arguing that logoright derives from the Law of Identity) follows as well.”
XV. An Ill-Tempered Conclusion
Now. If after all this you still think a logos can’t be property because it isn’t a “scarce economic good,” or if you think creation isn’t essential to the origin of property–then compose your own damn symphonies, write your own damn novels, invent your own damn computer–much less figure out how to program it–design your own damn houses, film your own damn movies, and come up with the damned recipe for bread on your own, –because a person who makes his or her living by creating a logos for license isn’t going to work for free.
If logorights aren’t recognized as property, a Creator of a logos is left with two choices: limit the circulation of the logos only to those who sign contracts agreeing not to copy it–and pray that someone doesn’t accidentally leave a copy unprotected for an hour in the vicinity of a Xerox machine or camera–or produce only the least-labor-intensive sort of logos that can be quickly exploited in the time before someone can undersell the licensed product by reproducing its logos without having to pay royalties.
If you don’t think a logos is a scarce good, you’ll find out how scarce it is damned quickly if you declare open season on ripping them off. And, yes. I did say “rip off.” Logorights are property rights–and they are entitled to the same respect and protection as property rights in land, butter, guns, cars, radio frequencies, and gold that I have heard property rights advocates defending endlessly.
Just as the communist anarchist argues that it is only the monopolistic grants of privilege from the State that makes property itself possible, so the anarchist opponent of copyright has been arguing that it has been only the monopolistic grant of protection from the State that makes copyright possible. Both are making the same error. If anything, the State is constantly violating logorights by imposing through fiat the State’s own copyright laws on logoright owners.
And that is why, as a propertarian anarchist, I proudly declare that this essay is my property–herein claimed by giving you notice that this article is Logoright (L) 1983, 1989 by J. Neil Schulman and anyone who attempts to violate my property rights in this logos should expect to hear from the legal firm of Smith & Wesson.
XVI. LOGORIGHT NOTICE
Logoright (L) 1983, 1989 by J. Neil Schulman
The logos in this Work is its material identity, an “information object,” separate from the materials upon which it may be imposed or observed, which has been created as a unique structured artifact by its author’s labors. Since each artifact resulting from the labor of a person is, by natural right, by decency, and by common law, beyond all limitations imposed by sovereign force, the morally claimable property of that being, each use of that property must be authorized by its owner, and all unauthorized uses of it are tresspasses of a person’s natural rights and a violation of that person’s spirit.
The Logoright notice is an explicit marking of that object to declare to all that it is owned. This Work is licensed for reading purposes only. All other rights and uses, including the right to make copies, are reserved to its Owner.
Reprinted with permission by J. Neil Schulman, Editing & Formatting by JamesCarlin