The Libertarian Case for IP
“Ideas” can’t be property. “Information objects” may be property but information as such can’t be property. Only things can be owned. If a thing can be copied then it’s a thing. Property rights aren’t the property itself. You can’t point to a right. The debate about IP is a moral debate about human action, the same for any other property right. If you think a novel isn’t scarce, write one people beg to read.
The above YouTube video is probably the cleverest, catchiest, and most cogent argument in favor of eliminating I.P. laws I’ve ever seen. As a piece of advertising for a concept it’s hard to top. Bravo!
Now I will destroy it.
The argument of “Copying is Not Theft” is that by copying a novel, a song, a movie, the owner is still in possession of the original and therefore by making a copy nobody is doing anything to deprive the owner of the original of anything of value.
Clever. Very clever.
But wrong. Very wrong.
Remember the scene in the movie The Net where Sandra Bullock’s character, Angela Bennett, arrives home to find her house empty and a real-estate agent selling it? The real-estate agent has a copy of the deed to the house with a copy of Angela’s signature on it. Hey, those are just copies — Angela still has the originals … somewhere. She wasn’t deprived of anything by the act of making copies, was she?
Let’s say you graduate from medical school and get a diploma, with additional certifications so that you’re entitled to put “MD, FACS” after your name. Now, anyone copying those diplomas and certifications hasn’t deprived you of anything if they perform surgery in your name and a few patients die in the O.R. right?
Or for my last example — and you gotta love this one — you’re a scientist working at a lab that stores various viruses — weaponized anthrax, as an example — that if released could kill millions of people. Hey, you still have all your original security passes, ID’s, and clearances if someone clones your biometric data and uses it to go grab some anthrax and drop it into the Lake Mead reservoir, right?
Come on, Neil, now you’re just being arch, argumentative, and ridiculous. Get to the point — copying a book, or a song, or a movie.
I never left the point. It’s exactly the same subject.
I spend five years of my life writing a novel — go through eight drafts before I finally have it right. That’s a major investment of blood, sweat, toil, and tears.
I put it up for sale on my website as a PDF file, or on Amazon.com as a Kindle file, or get it accepted for sale through iTunes for reading on the Apple iPad.
The next thing I know, all these versions of my novel are free Torrent downloads for which I don’t get anything in return.
Oh, Neil, you still have your original. Copying Is Not Theft. By making a copy I haven’t deprived you of anything.
Except, why should anyone making a rational economic calculation pay me for something they can get for free? So people get the benefits of my five years of blood, sweat, toil, and tears, and my checking account doesn’t have money in it to pay for doctor’s visits and prescriptions needed to treat my Type-II Diabetes.
Or, I spend four years of my life and a half million bucks of my family’s dough — including fourteen cuts in an editing bay — making a movie. Then I put it up for sale on Amazon.com as a Video on Demand. Someone with software to get by any copy protection Amazon.com has takes my movie and presses it into DVD’s for sale in kiosks in Hong Kong … and, once again, as a Torrent.
Now before I even get the chance to sell my movie for commercial distribution — which might get me back the cash, talent, and time invested in making this movie so I can afford to make another one — people are getting the benefit of my blood, sweat, toil, tears, and cash … and I am prevented from self-financing my next movie.
If I invent, compose, or craft something original, it’s part of me. It’s part of my identity.
The basic libertarian principle of liberty starts with self-ownership. Preventing me from owning the sole right to offer copies of things that are part and parcel of my personal identity — preventing me from owning the exclusive right to make copies of what I make as part of my personal identity — is the destruction of my life and liberty … and quite literally could end up killing me.
Think about it. Please. None of this is theoretical for me. This is how I make my living. This is how I survive … or not.
Kyle Bennett (presumably no relation to the fictional Angela Bennett I referred to in the movie The Net) wrote in a comment on my Facebook wall this morning:
All of your examples are of fraud or trespass secondary to the copying. There’s a difference between my selling a copy of “Lady Magdalene’s by J Neil Schulman,” and selling a copy of “Lady Magdalene’s by Kyle Bennett,” or a copy that has different content than the buyer was led to believe it was.
Kyle admits that someone making a copy of “Lady Magdalene’s by J Neil Schulman” and selling a copy of “Lady Magdalene’s by Kyle Bennett” is committing the fraud we call “plagiarism.” Putting your own name on someone else’s work product without their authorization and distributing that mislabeled product as your own is misrepresenting the pedigree and provenance of that product to the end users. It is claiming someone else’s accomplishment as your own. It’s cheating.
So let’s look at the cases where you make copies of something I made and still keep my name on it. That is no longer plagiarism.
It’s now a different form of fraud, which in the art world is called “counterfeiting” and in the world of other commercial products — such as designer clothing or luxury watches — is called “forgery.”
Remember: my first premise here is the libertarian premise of self-ownership. I own my name when it refers back to me, my biographical details, my resume, my accomplishments, the proprietary artifacts I’ve used to generate my reputation, my personal expertise and taste. All of these are elements that when attached to my name make it a personal brand. Someone else using my name — my identity — for things not owned or authorized by me is committing identity theft — and I gave examples of that in yesterday’s article.
But let’s say I write a novel and put my brand — my author’s name on it: J. Neil Schulman. The first claim of authorship of something I write is my byline attached to the writing. In a novel this is on the cover and title page. I write a dedication and acknowledgments, giving the work a purpose and a pedigree. On the copyright page is a claim of ownership — in land terms the posting of a “No Trespassing” sign, to stake out the boundaries of ownership.
Often I will personally affix an additional brand enhancement — my signature. This is called an inscription or an autograph. That takes the particular copy from merely being authentic — authorized by its author — to being an object of memorabilia and gives it additional trade value in the marketplace. If the author is particularly noteworthy then under the right circumstances a personal signature can make an authorized copy many times more valuable than a copy that has merely the original commercial brand authorization.
You see this all the time in designer clothing lines, or perfumes, or celebrity photographs, or luxury watches. All of these products have enhanced market value by affixing a known celebrity brand.
The celebrity brand tells the buyer that the celebrity had personal input into the design, quality control, and manufacturing conditions of the product. The celebrity is risking his reputation if the quality control of the copy fails to meet top standards. This is an argument I made in another of my recent articles — What’s Your Bible? — when I argued:
As a professional writer whose name is his commercial brand, I can no more allow someone else to rewrite me as they like and put my byline on it than the Walt Disney Corporation can allow someone else to publish cartoons of Mickey Mouse buggering Donald Duck.
In a comment in reply to a challenge from a reader, I further wrote:
No true craftsman allows someone else to ruin their work and keep their name on it. A license that allows unlimited rewriting but keeping the original writer’s name on it is an abomination to anyone who gives a damn about the integrity of their work. Deal breaker. … I have contempt for people in any field of human endeavor who don’t care about maintaining the quality of their work product. If that makes me a snob, so be it. I call it having standards.
I have sat next to celebrities at conventions while the star signed personal memorabilia, taking cheaply manufactured objects — photographs of themselves, shirts, objects memorializing their career accomplishments — and charged up to several hundred dollars to sign it for a buyer — with lines around the block for them to do it.
Auction houses and auction websites make markets out of common objects that would be trash except for a celebrity having owned or used or once touched it.
A set of golf clubs or a box of golf balls is worth far more in a pro shop if the brand name “Tiger Woods” is on the label, because by affixing the name of the golf legend the buyer is being told that Tiger Woods had personal input into the quality of the products.
Anyone who copies that box of golf balls with the Tiger Woods label on it — without proper authorization — is committing an act of forgery.
Anyone who copies something I make without my license to make authorized copies is committing Identity Theft against me and some form of fraud against the person to whom they’re providing the copy: either plagiarism if they substitute their own brand or forgery and counterfeiting if they keep my brand name on it.
Sell knock-offs of Tiger Woods label Nike shoes to the wrong person and don’t be surprised if you get capped upside your head, mutha!
The questions of how copyrights, trademarks, and patents are currently defined and enforced by States are an entirely separate issue from the arguments I have been making since the 1980’s about property rights in identity and information objects.
For now I would be entirely satisfied if libertarians and anarchists recognized my property rights in the things I create and respected my right to license copies, using no other enforcement mechanism than social preferencing.
If we ever get there, I would only sign a General Submission to Arbitration with an arbiter whose legal code recognized my property rights in name, brand, identity, and information objects I create.
But if libertarian/anti-statist writers and organizations continue to deny property rights in Identity and Personal Brand — both violated by unlicensed copying of created works — the libertarian movement fails to be an effective defender of the right to self ownership — the center of all libertarian thought — and belongs in the dustbin of history along with all other failed forms of socialism that treat the individual as a slave to the wants and needs of their brothers.
Reprinted from the Journal of Social and Biological Structures, Volume 13, Issue 2, 1990, Pages 93-117
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
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
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
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
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.
“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. I
think the best first example is to be found in the following
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
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.
Okay, here’s my second example: the same concept in a
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
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?
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
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
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, first, what do we mean by “identity”; second,
what natural rights and property rights are in general; third,
what property is in general and how it comes to exist; and
fourth, how property rights are established and what they mean in
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.
“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.
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.
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.
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-
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
(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
Corollary Three: If a new attribute imposed on an entity
changes the fundamental nature of an entity, it becomes a new
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
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.
“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.
The first phrase, when interpolated slightly, is: the
product of a man’s effort.
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.
“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
“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
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”
occurence as opposed to being artifically generated
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
For example, scientists know that Mars has water, so a
Martian river isn’t all that improbable; but photographic
evidence of an artifically 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
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
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
Second, does that which is said to be property have boundary
And third, is that which is said to be property under an
And these lead us to the next discussion necessary before we
get to logorights:
“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
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
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
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
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
Do I have the right to build a house on this lot and live in
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.
“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
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
Two cases showing how “bundles of rights” are dealt with in
respect to land use will illustrate this.
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.
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
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-
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.
“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
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
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
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.
“Four Tests of Property”
Let’s take those four points one at a time.
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.
Second. Does the owner claim the logoright?
Yes: and here’s where the term copyright may be used exactly
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
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.
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
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.
The fourth and last test: does the logoright’s owner control
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
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.
“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
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
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 irrelevent 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 threshhold limits of which attributes define
an entity and which do not, but the principle would remain
intact. Such boundary problems and threshhold 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 threshhold
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
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
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.
“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
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
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
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
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
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.
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.
Objection Four: What about two or more people who come up
with the same invention or story independently? Who owns the
Answer: As I’ve discussed earlier, creation means the taking
of something from a state of greater probability to a state of
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
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
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
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.
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.
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
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
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
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.
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
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
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.
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
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.
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
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
“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
“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,
“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
“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
“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
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
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 &
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.
My comment just posted on “IP: The Objectivists Strike Back!” at http://www.againstmonopoly.org/index.php?limit=0&chunk=0&perm=593056000000002117
The reason I argue that “any conceptually identifiable ‘thing’ is ownable” — although I never put it that way — is that without identity differentiating things nothing could be ownable.
The reason that creation is the beginning of the moral case for property rights is that without creation nothing other than brute-force possession defines ownership.
As for “the obvious conundrum of people coming up with the same idea” that is just one of the questions I answered 25 years ago in my essay “Informational Property: Logorights,” newly available at http://jneilschulman.rationalreview.com/2009/12/classic-j-neil-informational-property-logorights/.
“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. … 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.”
Another comment I just posted on “IP: The Objectivists Strike Back!” at http://www.againstmonopoly.org/index.php?limit=0&chunk=0&perm=593056000000002117
“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.” –J. Neil Schulman, “Informational Property — Logorights”, at http://jneilschulman.rationalreview.com/2009/12/classic-j-neil-informational-property-logorights/
My comment posted on the Austrian Economics Blog at http://austrianeconomicsblog.com/4554/ip-the-objectivists-strike-back/
There’s another side to this argument in my article “Informational Property — Logorights,” newly reposted at http://jneilschulman.rationalreview.com/2009/12/classic-j-neil-informational-property-logorights/
No one who takes property rights seriously can afford to dismiss property rights in information objects without refuting the proofs and the detailed discussion of objections I raise in this article.
Stephan Kinsella has been claiming since 1996 that he’s done so. Read it for yourself and decide whether you agree with me that he hasn’t.
From my replies to Stephan Kinsella at Query for Schulman on Patents and Logorights
I use a screenwriting program called “Movie Magic Screenwriter.” It’s not ethereal; it’s loaded on the same computer I’m writing this from, This currently existing commercial software software package can compare any two scripts and highlight the overlaps and differences between them. No speculation is involved. No counterfactuals. It merely uses a process memorialized in the Sesame Street song “One of These Things is Not Like the Other.” Only it can count higher than two.
If two scripts were written independently and correlate as the same (yes, a hypothetical), then neither one was original.
But in the real world, if you encounter this, what has happened is plagiarism, even if of an author lost to antiquity.
Creation requires something unique — a one-up. If two inventors independently come up with the same “invention,” the question arises whether what they did was not invention but discovery. The movie Flash of Genius is a great exposition of a real-life patent case which explains the process of correlation (and differentiation) between two claimants.
There is only one Atlas Shrugged.
There is only one A Christmas Carol.
There is only one The Rainbow Cadenza.
The processes of differentiation and correlation can prove whether or not they are unique creations. And if they are unique creations, they are the exclusive property of their creator.
“If the state exists, my IP claims however evaporate with the state, as do my claims to social security and medicare.”
Social Security and Medicare are state payments. Transfer of money taken by force from taxpapers.
My ownership of the things I’ve written are private property independent of the State and its copyright laws. I don’t own them because of a grant of privilege from the State. I own them because I made them and they’re mine by natural law and natural right. I took them from no one else. Their existence is dependent on one one but me. They would not exist except for my creating them.
According to Stephan Kinsella, writers make nothing and own nothing.
According to Stephan Kinsella composers make nothing and own nothing.
According to Stephan Kinsella architects make nothing and own nothing.
According to Stephan Kinsella digital filmmakers make nothing and own nothing.
According to Stephan Kinsella digital graphic artists make nothing and own nothing.
According to Stephan Kinsella Bach, Beethoven, Brahms, John Lennon, Charles Dickens, Robert Heinlein, Rudyard Kipling, Mark Twain, George Orwell, Ayn Rand, L. Neil Smith, and me made nothing and deserved to own nothing.
This is so ridiculous that I am ashamed that I waste my time responding to it. It is absurd and self-annihilating nonsense and those who believe it if they put this vile nonsense into effect kill the geese who lay the golden eggs — from a story by Aesop, who according to Stephan Kinsella made nothing and deserved to live as a slave.
I advocate the substitution of statist law with market-derived law, a position I have advocated since the mid 1970′s. So do I advocate the abolition of statist copyright and patent law? Absolutely — when the state’s tyrannical edicts are replaced by liberty.
All statist protection of property rights is flawed — and copyright law, patent law, and trademark law is as flawed as statist protection of any other “property” rights which involve violation of others’ natural rights.
All propery rights questions involve defining boundaries. Again, covered in my original article.
If I shine a flashlight on your land, am I committing photonic trespass? What if my flashlight triggers your burglar alarm and the ADT agents shoot you thinking it’s an intruder?
If I grow peanuts and peanut dust blows into your child’s bedroom and sickens your child who has a severe peanut allergy?
There is no property right that can’t generate extreme cases.
What I think you have most failed to understand in my defense of logorights is how high a bar logorights theory sets for a claim of exclusive ownership. Yes, my theory requires a proof of uniqueness before a property right can be claimed. Failing that standard there is no rightful claim of property right.
Stephen King’s new novel, 11/22/63, is about a time-traveling teacher who goes back in time to stop the JFK assassination.
Is his plot an infringement of my own Twilight Zone script, “Profile in Silver”?
The burden would be on my to prove that it would have been impossible for Stephen King to come up with that plot if “Profile in Silver” hadn’t been broadcast in CBS prime time, first. If I can’t, there’s no violation of my rights.
But if Stephen King has in his novel identical characters and story elements to my writing so numerous as to defy common sense for independent creation, then he’s committed plagiarism and he’s violated my rights. That’s common sense.
By the way, the only people who say that “nothing is original” are people who don’t trust their own powers of creation. That statement is the hallmark of the quitter.
Do you own a house with a county-issued deed, Kinsella? If you do, is the statist issued deed sufficient reason for you to abandon your property?
How about your car? You can’t own it without DMV permission in many states. Ooops. Statist laws. No property rights. Give me your car!
How about your kids? Agree to keep them in school so the county doesn’t arrest you for violation of truancy laws and place your kid in a state home? Or divorced and got a custody arrangement issued by a judge? Ooops! Not your kids anymore unless a statist judge grants permission.
There are no private property rights not in effect without permission of the State. You expect me to abandon my rights because the state actually allows me to keep some of my own property?
You’re not stupid. You’re not evil. You’re not trying to abolish all property rights. You’re merely mired in a three-century old Lockean paradigm of property rights that is so reductionist that it is ludicrous.
Winner of the Special Jury Prize for Libertarian Ideals from the 2011 Anthem Film Festival! My comic thriller Lady Magdalene’s — a movie I wrote, produced, directed, and acted in it — is now available free on the web linked from the official movie website. If you like the way I think, I think you’ll like this movie. Check it out!