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What Social Animals Owe to Each Other

Thursday, May 04, 2006

Creative Thought and Ownership

The maker of the BlackBerry wireless e-mail service, Research in Motion (R.I.M), has more patent troubles, and it's fighting back. I don't want to go over the full case against patents, or intellectual property (IP) rights in general, but I do want to restate a powerful argument made by others, such as N. Stephan Kinsella. Some pro-IP folks think it is self-evident that if someone originates an idea he has a natural right to control the manufacture and sale of devices that instantiate that idea. After all, he thought it up. He exerted creative effort. Property rights are said to flow from that creative exertion.

It can't be. No ownership rights flow from thinking, regardless of how important thinking is to production. Ownership flows from other factors, and there are no gaps in the emergence of property rights that have to be filled in by creative thinking. Using Occam's Razor, we just don't need mental effort to justify property rights.

To see this, imagine that Howard Roark's evil twin enters your land without permission and uses your building materials and tools to create an acclaimed and original architectural marvel never seen before. Does this Roark have any rights whatsoever to the building? Of course not. Not even a scintilla of a claim. Why not? Because he didn't own the land or the materials. No degree of creative genius could transfer ownership to him. (And he could not gain ownership by mixing his labor with already owned things.) The real owner has every right to destroy the building without paying Roark a penny.

On the other hand, if Roark had legitimately owned the land and materials, the creation would clearly be his. His prior ownership of the elements of his creation would be sufficient to justify his ownership of the building. Thinking up the ideas embodied in the product adds nothing as far as his property rights are concerned. Prior ownership or original appropriation of unowned resources is not merely necessary to property rights in a product, it is sufficient.

The point is not that thinking is unimportant, only that it is irrelevant to the generation of property rights.

Cross-posted at Against Monopoly.


Anonymous said...

If thinking is irrelevant to property rights, does that mean I can copy one of your books and put my name on it (or one of your blog posts)? Or does the expression of your thoughts on paper or some other medium constitute "mixing in labor"? It looks like a very gray area.

Sheldon Richman said...

Putting your name on my written work should be regarded as a discourtesy, a moral lapse, and an insult to your readers, but not a crime or an actionable civil offense. I cannot own an arrangement of words. See the Creative Commons Attribution License at the bottom of the blog. It is not perfect, in my view, but it comes close to what I want to say. Also see the "Copyright Notice" at Against Monopoly.