status: work in progress, mostly complete.
This article will explore a positive case for intangible ownership norms.1 The structure of this article will first describe what the positive case is for, the benefits of the proposed norms, and the opportunity cost of common Abolish-IP (AIP) proposals. This is not a "proof of IP" nor a "disproof of abolish-IP." The author also considers this an adaptive concept, and as such is likely to update and refine this article based on new information2.
Part #1: Answering 'What?'
A Man of Straw:
The positive case here is NOT for enforcement of IP by centralized governments.3, current IP laws4, misconceived5 or absurd forms of IP6, or the current state of IP legal code and enforcement7. Please take that into careful consideration as to avoid misunderstanding or strawmanning what follows.
The case being made is for balanced systems of norms regarding intangibles, including the treatment of some intangibles as owned property. This article only makes a positive case for the pursuit of norms which seek a balance of several values, but not for simply any possible intangible-norms. For a lack of a better label, the labels "intangible norms," "intangible property," and "intangible ownership" will be used.
The opportunity cost, or contrasting conditions, will be considered the complete abolition of IP as currently promoted by several members of the Ludwig von Mises institute (LVMI), and their followers. This group and belief will be labeled Abolish-IP (A-IP) and Abolish-IP Advocates (AIPA/AIPAs) The author recommends reviewing materials directly from the primary sources8 In the pursuit of brevity, and due to alternatives and diversity within AIPAs, the author recognizes that this article may not adequately represent all persons, forms, or groups, though it is not the author's intent to strawman.
Discussion of which specific intangible-norms are ideal, efficient, or most ethical with AIPAs is a non-productive exercise. This article remains agnostic and open-minded to possible diverse formulations of intangible ownership norms. To avoid issues of confusion the value and flaws of one concepts as the value of another9, the scope of this article will only address a positive case for the general pursuit of intangible ownership norms based on a balanced set of values10. The author recognizes that some possible formulations for intangible property may be destructive or in opposition several values11, and as such this article is not intended to support or advocate for any or all intangible ownership norms.
Basis, Values, and Objective Ethics:
This article's approach to the subject of intangible property will be "Norm-X promotes or undermines Value-Y." This approach does not make ought-claims, such what one "ought value" or what "norms ought be enforced," but rather seeks to explore the interactions between norms and the values that one might have (for more information, see: "Objective Statements").
The author does not wish for the content of this article to be confused with consequentialism or utilitarianism12, and further this article makes no claims of argumentation ethics,13 objective ethics, or objective values14. The positive case here is not for an inflexible objective intangible property ethic that must never be violated under any circumstances.
Adaptive Norms, Ownership as Technology:
Ownership norms are not unique to humans, however modern human property norms15 which promote advanced, wealthy, technological societies any anything but simple or static. By promoting or proposing norms, I recognize that in an unknowable future, it is possible that any norms proposed here may be replaced by either more advanced norms, or norms relevant to unknowable changes in conditions of human interaction.
The author also recognizes the limits of his (and more importantly, everyone's) knowledge and capacity to predict16, and wishes readers to follow the reasoning of the article, but seek their own conclusions. This is also important in the proper construction of balanced norms which come about as a result of intellectual exploration, values and the limits of those values, real-world testing through economics and common-law, and adapting to changing conditions.
Part #2: Answering 'Why'
This article will now explore the value in the pursuit of intangible ownership norms. For contrast, the alternative (opportunity cost) will be considered the pursuit of Abolishing-IP norms (A-IP). The author recognizes the possibility that the proposed pursuit of norms (+norm) may be superseded by some other known or unknown alternative.
Voluntary Diverse Economic Relationships
The pursuit of intangible ownership norms allows for the pursuit of propertarian economic systems to be constructed around intangibles as products or economic goods. If creators and investors are granted ownership and control over the means by which they wish to, or wish not to, monetize the productive of productive efforts, they may pursue and explore a diverse array of potential economic relationships with their clients and customers.
Customers and clients who find the intangible-product to be of value , and the price and terms of transaction agreeable17 may voluntarily engage in a mutually beneficial relationships with those who produce or invest in the production of intangible goods and services. Those who find the product, pricing or terms-of-agreement undesirable may freely opt out.
Economics, and Market Forces
Intangible ownership norms allow for the promotion of natural free market-forces which promote efficiency and waste. As with standard market forces, those who make good investments and produce value will be naturally rewarded. Those who make bad investments, poorly allocate resources, are unable to engage in mutual transactions, or otherwise engage in non-productive or inefficient market activity will naturally be 'regulated' by market forces.
Ownership norms may secure ownership in the hands of those who produce value18, while undermining parasitic activities, defined as the poaching and extracting of value against the consent of producers. Ideally these norms are voluntarily respected by participants, who willingly refrain from parasitic activities in pursuit of their own values19 In the absence of such voluntary action20, intangible ownership norms may allow mechanism for sanctions or the pursuit of restitution.21
Disputes and Non-Ownership Norms
The pursuit (or opposition) of intangible norms further offers mechanisms for dispute resolution, restitution, prevention, and standards for acceptable and unacceptable behaviors regarding intangibles, including those not commonly referred to as 'property.' Intangible-norms may include standards for hacking, viruses, fraud, privacy, identity theft, extortion, stalking, harassment, verbal abuse, mental abuse, several forms of pollution, counterfeit currency, trademarks, fraud, contract-violations, and threats. Which norms regarding these intangibles are most efficient, ethical, practical, and best promote a diverse array of values is another topic to be examined on a case-by-case basis.
Part #3: Contrasting (Non) Norms
According to the A-IP, once secrecy is breached through any means22, the intangible product is treated as the equivalent to public domain, and the producers consent is treated as entirely arbitrary.23 The absence of IP norms offers creators few options for control and security that would not quickly deteriorate under proposed A-IP norms. The capacity to manage, customize, experiment, or otherwise engage in diverse economic relationships would greatly diminish.
The creator control is limited to secrecy and contract24 enforcement, presuming contract enforcement is allowed. AIPAs commonly advocate non-liability of third parties, regardless of the means by which the pirated or poached values was obtained25, laundering all ethical and legal liability of those who willfully pursue and receive poached intangible goods and services26
Abolish-IP treats all intangibles as property of the commons27 regardless of consent or the means by which it was made available.28, and the incentives to maintain and produce are undermined, while the incentives for parasitic activities are increased. The absence of ownership norms undermines the benefits and efficency of price signals and allocation of resources common of propertarian systems.29
Disputes and Absence of Intangible Norms
Abolish-IP promotes the abolition of other norms regarding intangibles30. In the absence of intangible norms, the problems and harm associated with these activities remains, but several mechanisms for dispute preventions, resolution, and enforcement disappear.
Several AIPAs show a tendency to adopt positions against other intangible norms. Specifically, leaders of the [AIPAs are known to undermine norms regarding contracts, threats, fraud, privacy, and several other norms which cannot easily be framed as physical property violations. Given norms of intangibles, combined with norms of restitution and arbitration, the pursuit of many acts of injustice is made significantly less efficient.31
Much of creative entrepreneurship would be made 'impossible' or inefficient in an idealized non-IP society. Proposed alternatives tend to be a collection of shaky business models reminiscent of gift economies32, obscurity33, popularity34, derivative products35or one-off products36 - many of which would become less viable with non-IP norms37 or shift incentives towards economic activities this author finds inefficient and undesirable.38
Unfortunately, the nuances of running a creative entrepreneurial efforts are difficult, complex and best learned through hands on experience. Regardless the volume of material written on the subject, few successfully are able to communicate the nuances of a creative business, much less do so in fewer than several hundred pages. Worse, there's a plague of destructive business advice, which this author estimates is the leading cause of "starving artist syndrome."39
- Related article: "Coaching from the Sidelines".
Author's 'Subjective' Conclusion
The author finds it discouraging that libertarians are wasting an opportunity to take the lead in the development of more ethical and economical intangible-norms, and instead wasting it on a fruitless and counter-productive effort to abolish them entirely. Ownership, and norms in general are adaptive, almost technological, and it would be shameful for libertarians to become dogmatically glued to some misplaced idealism which leaves their property norms primitive and stagnant, or potentially counter-productive or destructive. Ideally this article will assist in providing the basis for the exploration and promotion of norms regarding intangibles and intangible ownership,40 and promote the consideration of what balanced norms might be.