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Carpe Veritas,
​Mad Philosopher

 It should be no surprise that the issue of property should become so central on an anarchist philosopher's blog; nearly every opposing argument to anarchy I have encountered hinges on property rights or one's fear that their property should become insecure.

It also should be no surprise that intellectual property should come up so quickly; copyright law has been a cultural mainstay sine the Church and publishing companies had decided to try and control society's intellectual pursuits several centuries ago. IP is a subject almost as involved and arguably more convoluted than property at large, so I'm going to focus on one specific point concerning IP today and add to it more later on. I would have to, as property rights and IP intersect frequently with issues such as innovation and privacy. Some more definitions, some metaphysics, and one not-so-world-shaking claim are all I can manage this week.

What is intellectual property? Despite being a centuries-old cultural mainstay, IP law is very nebulous and unhelpful to rational inquiry. Only slightly more useful is the cultural and academic narrative concerning “stealing ideas” and channels by which one gives credit, which are somewhat informed by IP laws. Instead of teasing ideas out of these frustratingly ad-hoc narratives, we should look at the term and the high-altitude basics with fresh eyes.

So, “intellectual”. I tend to avoid metaphysics on my blog, instead reserving such exercises for in-person discussions and my still-unpublished book. I am essentially a substance pluralist, which means I am not beholden to the materialist doctrine. Today, I am going to be using terms such as “ideas”, “mental/intellectual substance”, “mind” and the like. While these terms sound like some sort of Cartesian dualism (to which I do not ascribe), I am aware that, in some form or another, there are materialist parallels to each of these concepts. For the sake of our discussion, we will have to assume that people possess minds and that the discussion of intellectual matters are concerned primarily with the operation of minds. I don't think this is too far a stretch for my readers.

Ideas are immaterial. Where apples or rocks exist independent from observers and act on their own (producing gravity, growing, decaying, interacting with their environment), ideas are contingent upon minds (or, rather a medium which can contain the idea, such as a mind). If there is an idea in my mind, it exists solely within my mind. Even as I write these words, the idea I am attempting to express resides solely within my mind. It is possible, though infinitely unlikely, that someone, at some point in time, may have an idea that is identical to the one I am expressing now, but it would not be the same idea, nor would we ever have a method by which to determine that it is identical.

This is due to the phenomenological barrier between our rational minds and the world around them. I am currently experiencing having an idea and attempting to express that idea in precise linguistic terms. I am expressing it in this way, hoping that by reading these words you, the reader, will be able to use this expression to construct a similar enough idea such that we will have a common language for expression of ideas. You can never see or experience the idea in my head, but you can attempt to construct a facsimile idea that is close enough.

In short, I cannot “give” or “take” and idea from you, I can only strive to provide you with the necessary components of an idea I wish to share. If I, for whatever reason, wish to prevent you from constructing a particular idea, I can attempt to avoid expressing hints at that idea. This is the basis of a secret. If I have an idea in my mind and wish no-one else to be aware of it, I can refrain from expressing it and even engage in behaviors that may prevent others from becoming aware of such an idea. For instance, Bruce Wayne can pretend to be a playboy billionaire too busy hanging out with loose women to be beating criminals in the dead of night, thus keeping his secret of being Batman.

Bruce Wayne is an excellent example, as he effectively demonstrates the nature of secrets. For example, the common inhabitants of Gotham have no idea that Bruce Wayne is Batman, primarily because they are ignorant of the requisite evidence to form such an idea. However, every iteration of Bruce Wayne is eventually exposed as Batman to someone else (Alfred, Dick Clark, Catwoman, Bane, etc.). The moment that a copy of the idea that Bruce Wayne is Batman is created, the secret is out. Such a secret inevitably spreads at a geometric rate, sparking the creation of duplicate ideas in fresh minds from the initial host, spreading like a virus and taking on a new form with each duplication.

If Alfred discovers Bruce Wayne is Batman, can Bruce justifiably kill or coerce Alfred in order to prevent such a spread of information? One may make a convoluted case that Alfred, by knowing something that could put Bruce in danger, is aggressing against him... but I don't have time to waste on such absurdities. All Alfred has done is construct an idea which serves to inform his understanding of the world. The material equivalent would be Bruce creating a tool, say an ax, in order to make woodcutting easier, and Alfred, seeing the utility of such a tool, fashions an ax himself to cut his own wood. It is possible that Alfred's ax may put Bruce at risk,(Alfred may snap, and murder Bruce in his sleep or a criminal may acquire the ax and use it in the same manner), but the mere fact that Alfred possesses a tool does not threaten Bruce. The same applies to Catwoman, Talia and Ra's AL Ghul, Bane, etc; regardless of who knows the alleged secret, the only thing that matters (morally speaking) is what they do with that knowledge.

Now that we've taken most of our time exploring the term “intellectual”, let's briefly turn our attention to “property”. My last two posts (here and here) explored the basics of property already. We don't have to go much further than we already have. I got the least amount of feedback to-date concerning these posts, so I have had very little opportunity to change my mind.

Two key requirements I have laid out for something to be considered property are thus: the alleged “property must be a discrete and identifiable object, and it must be transmissible. Given what we have already covered concerning intellectual matters, it becomes readily apparent that an idea is not really discrete and identifiable. Whether it be an immaterial entity within one's mind, a specific arrangement of cells and chemicals in a brain, or a series of magnetic charges on a metal plate, an idea is difficult (to the degree of being an impossibility) to identify as a discrete object. Additionally, an idea, in any of the forms I have just listed, cannot really be moved from one medium to another; they are actually merely duplicated with varying degrees of fidelity. Because “intellectual” things cannot meet the necessary conditions for property, “intellectual property” is an oxymoron.

“But what about books? You can own, trade, identify, and move books.” Books are obviously property; they meet each of the necessary and sufficient conditions we have already covered. However, there is a delineation between the material book itself and whatever ideas the book “contains”. The paper, ink, glue, etc. are discrete and identifiable, but the ideas that can be constructed by way of the material object only exist insofar as the mind is able to assemble ideas from its interaction with the material object. When one buys a book, one isn't buying ideas. One, ostensibly, purchases a book with the intent of receiving fresh inspiration for one's mind, but all they purchase is ink-stained paper.

“What about ebooks or software?” Legal fictions aside, we can look at identifiable, concrete actions and determine what is taking place. When one creates an ebook or piece of software, they are devising a particular series of on/off signals which are comparable to the phonetic and tonal sounds one makes when one performs a speech or holds a conversation. One can duplicate that series of signals with comparative ease, courtesy of modern computers. However, in order to create a duplicate, one must first have access to an existing instance of that arrangement of signals.

Ultimately, the (ostensibly) easiest method of gaining access to that series of signals is to pay the creator or host for such access. Things like DRM are typically implemented with the intent of making alternative methods of access cost-prohibitive. In the case of software, limiting functionality to people and charging for a password to increase functionality is still a common practice today, even if it is somewhat hidden behind the user interface. A material comparison would be a factory producing fully functional and free cars with locked doors. The easiest way (in this case) to gain access to the car and drive it away would be to pay the factory owner for the key to unlock the door.

Based on these behaviors, I would say that electronic media or, rather, the data stored on those media, are not property. They are certainly intellectual, which disqualifies them from being property. Instead, when one “purchases” an ebook, software, or whatever, one is paying for the service of allowing access to an extant copy in order to duplicate it, for the service of providing a password which grants access to functionality, or some comparable service. If this seems contrary to one's intuition, I suggest one investigate how exactly services like Netflix operate.

The most informative part of this discussion, though, is a matter of the metaphysical and physical impossibility of theft. When something is stolen from its owner, the owner looses access to and control over the stolen item; that is the definitive quality of theft. Ideas (and data, a subset of ideas)can be copied, modified, and even destroyed, but they cannot be stolen. If it can't be stolen, it isn't property.

TL;DR: Metaphysics and science alike will admit that the phenomena of ideas are immaterial (or, at least, have not yet found the specific material components and nature of ideas). Both will also bolster the claim that ideas are not moved about in the same manner as material objects, but are mind-specific and merely copied from medium to medium. Based on our current definition of property and these attributes of intellectual things, ideas cannot be property. Therefore, intellectual property is an oxymoron and ideas cannot be stolen. Nor, despite laws to the contrary, can one justifiably initiate aggression against anyone else over an idea they have, not even Batman

 Before I can argue about intellectual property, we must first have a working definition of property at large.

 Property, like the other concepts I've tried to define in this blog, is an idea that nearly everyone uses daily without much self-awareness. Of course, the precedent set by previous posts will be upheld here; my definition is going to be functionally approximate to common use, but counter-intuitive. A good starting place would be to identify the common understanding of what property is and what function it serves.

Property, in its common conceptualization, is simply an item, process, idea, or region of space to which one lays claim and society acknowledges said claim. Usually this claim comes in the form of a title, deed, or bill of sale (receipt) issued by the seller or government and the acknowledgment takes the form of deference to property and licensure laws (and all the violence inherent therein). Of course, an anarchist would be disinclined to use such a convention. Before throwing it out, though, we ought to explore the function of such a convention.

What function does property convention serve in contemporary culture? Ostensibly, it is a determining factor in the acknowledgment of rights and liabilities. If some thing is one's property, one has the right to do with it what one will; if said thing is not one's property, one can only do with it that which is permitted by the acknowledged owner. Of course, if this rhetoric is to be used as a definition of property, the state is the owner of all property by virtue of laws concerning what uses are allowed for all property. As a function, though, this idea serves as an excellent starting place for defining property.

What could be necessary and sufficient conditions for an item to be considered property, with an eye to producing a functionality similar to that mentioned above? I am not confident that I could fully formulate them here, but I must at least begin the discussion.

One such condition I believe to necessary is the discrete nature of the object in question. This is both a practical and a definitional concern. Where one could indicate a clearly defined object and lay claim to that specific object, it would be nonsense to indicate something nebulous or unconstrained and lay claim to it. For example, I could lay claim to a specific apple as my property and the claim could be easily constrained to the perceptible material boundary of the apple's flesh, but it would be practically and conceptually impossible for me to crop-dust the line at the DMV and then lay claim to the fart cloud permeating the room and everyone's nostrils. Another possible example would be for me to fence-in a distinct and limited area of land and lay claim to it and it may be a legitimate claim. Barring that being a legitimate claim, I can at least claim that the fence is my property.... which, given the basics of property rights, would be more or less functionally equivalent to claiming the land inside the fence.

However, laying claim to “all the land between this ocean and the next” or “from sea to shining sea” would be as absurd as, and logically equivalent to, claiming “all the apples”. It may be possible that, by way of trade (purchase) or labor, I may successfully acquire all of the known apples or all of the known land, but this is a circumstantial quality of that claim, not an essential or necessary one. What this means is that an apple or piece of land could be discovered to which I have not yet laid legitimate claim and I would then no longer own all of the apples or land, whereas, a categorical claim to “all the things” would mean that if a new “thing” were discovered, it would automatically be incorporated into my property.

In addition to being a discrete object, one must claim it in order for it to become property. A rock in a forest, unseen by man, may as well be a planet in the Andromeda galaxy: undiscovered, unowned, unimportant. A rock in my hand, though, is mine (unless the rightful owner has handed it to me... whatever). Of course, if two parties lay claim to an object, there must be some principle by which to determine whose claim is legitimate, but that problem should be explored later.

There are those who claim that whatever object is claimed, it must be a limited resource in order to become property. I hear AnCaps assent to that claim, but only because they believe it to be a tautology; all resources are scarce, only the degree to which they are scarce is in question. I also hear liberals and liberal-leaning individuals assenting to this claim. However, I believe this claim is assented to solely because it can serve the liberal agenda of eliminating property; in a post-scarcity world, property couldn't exist. I am inclined to agree that such a condition for property is tautological, but for a different reason than the AnCaps. In laying claim to portion of even a non-scarce resource (such as a bucket of seawater or a fistful of sand at a beach), one creates a particular type of scarcity. The sand owned by the individual in question is scarce by virtue of being his sand. It can be argued that such a distinction is meaningless, that his sand is indistinguishable from any other which is non-scarce... but the industry of religious and cultural relics would argue otherwise. Of course, this scarcity only exists so long as one cannot lay claim to the entirety of a resource, scarce or not, as I addressed above.

The next condition is complex and may be considered the deciding factor by which property is defined. Property could be considered an object to which one has the most full control over and access to. While this principle sounds straightforward and implies a Hobbesian brutality, it is far more nuanced and just than it sounds. Some examples really are simple and Hobbesian. If I wander into the woods and find our previously undiscovered rock from before, I can pick it up and claim it as my own. It is mine by virtue of being in my hand. If I bring it home and place it in my yard or home, it is mine by virtue of being on my property and in my control. If I were to claim it as mine, drop it in the woods where I found it and walk away, never to return again, anyone could claim the rock because I have forsaken control over and access to said rock.

This is where simplicity breaks down. What happens if I loan said rock to my neighbor, or rent it to a client? I abdicate physical control and access to someone else, how is it different from simply having gifted or sold it to someone else? An easy answer, which I reject, is “contracts”. Contracts, as readers of this blog will know, are as fictitious as the law in my mind. A lease or renter's contract amounts to nothing more than a promise with a written reminder of that promise. Which, incidentally, serves as an excellent launching point for my suggested solution. So long as my neighbor honors my wishes regarding the rock (contractually state or not), I still exert control over the rock, if indirectly. I may lack access to said rock, depending on the nature of my agreement with my neighbor, but insofar as the nature of that lack is temporary, my control of the rock serves as a substitute.

If my neighbor decides he values my rock more than his friendship with me, he may decide to violate our agreement and claim the rock as his own. In which case, he takes control of the rock and renders my lack of access to it permanent. These two factors being the determining factors of property would render the rock as his property. At this point, the Leviathan of social acknowledgment reawakens and rears it's many ugly heads. One method by which I could prevent or mitigate such an event would be to publicly establish my claim to the rock before lending it to my neighbor. At which point, if my neighbor steals the rock, I can call upon our community to place social pressure on him to return my property. I could also alert the community that I intend to retrieve my property at any cost, in order to dissuade the virtuous men of my community from interceding on my neighbor's behalf if such an attempt were to escalate to violence. In this way, the social forces I can bring to bear could still be considered “control”.

There are many technologies that lend themselves to this solution, though. Branding, titles/deeds, third-party records-keepers, smart property, remote bricking, social conventions, etc. have all come from the long-standing intuition of social acknowledgment. Even with such technologies, as a principled anarchist, I believe the utility of such solutions may be insufficient justification in light of the potential for abuse. One can turn to fictitious accounts of the wild west for examples of abuse of the contract/social acknowledgment solution to theft. These flaws are sufficient to encourage me to look for a better resolution, but this is one stopgap measure that seems to parallel the average person's intuition and lend itself to marketability. Other options have been explored and are in use today. I believe that a small enough community would have no need for such technologies, especially a community centered on anarchist principles. In the case of larger communities, I recommend reading Spooner, Rothbard, or (oddly enough) Proudhon for alternatives. Again, I believe in letting a thousand flowers bloom and seeing what works, but this particular issue and resolution is raised this time for definitional purposes.

The issue of theft gives rise to the last condition I have found to be necessary for a thing to be considered property; legitimacy of claim. My neighbor claiming the rock he borrowed from me as his own is considered an illegitimate claim and, therefore, theft. There is an overabundance of issues and theories concerning legitimacy of claim. Most straightforward of these issues and solutions is that of homesteading. It's a very involved discussion that I will explore further at a later date. A quick overview, though, is essentially thus: the first person to use or add value to an unowned object has a legitimate claim of ownership. After one establishes such a claim, one may give or sell it to whomever one so desires.

By extension, then, if one purchases property from someone else, one then has a legitimate claim to it. Of course, if the seller has stolen said property, there remains the issue of whether the original owner's claim or that of the unwitting purchaser is (more) legitimate. Thus far, I have not read or synthesized a categorical answer to this particular problem. Perhaps discussions with you, the readers, will help me to do so. In the mean time, I'm inclined to give the pragmatic case: don't let your stuff get stolen. If it does get stolen, get it back before the thief sells it. If you fail to do so, there's little cause to steal it from someone uninvolved in the crime. Maybe, if you ask nicely, you and the new owner can work something out.

This answer is clearly unsatisfying, so I will venture two cases that each have their own flaws, but may prompt appropriate discussion. If ownership is some metaphysical attribute that a person or piece of property has, then the claim of ownership that the original owner makes would be more legitimate than that of the thief or the unwitting purchaser of stolen goods, as theft would not transfer the metaphysical ownership from oneself to a thief... or we wouldn't call it theft and expect the thief to return the stolen property or equivalent goods. If, in fact, ownership is merely a term we use to describe a practical state of affairs, the purchaser of stolen goods has a legitimate claim to the property by virtue of having engaged in a voluntary exchange of goods, trading something of approximate value for something else of approximate value.

There also arises the issue of homesteading abandoned property, which closely parallels the limit cases of theft. I feel I've taken enough of your time this time around, and I believe any satisfying answers would have to be informed by the limit cases of theft and their resolutions, so we'll save that issue for later. For now, titles, records, blockchains, receipts, deeds, etc. are useful tools to try and avoid finding oneself embroiled in such an issue.

TL;DR; My working definition of “property” is, “any discrete object to which one has access, control over, and a legitimate claim by virtue of homestead or acquisition from the previous owner with the owner's assent.” This definition needs improvement and exploration, especially in establishing a principled resolution of theft and homesteading abandoned property.