Scarcity and Justice

I would like to offer some thoughts on the notion that property rights are ways to mitigate and resolve conflicts that are presented to us by the unsharable nature of physical objects. I have also read that it is the scarcity of such physical objects that require us to treat them as private property.

I think scarcity is the salient aspect. If land were a much more abundant resource, it would not matter that we could not both occupy the same space at the same time; one or the other of us could just go elsewhere and be happy. Water, which comes close to being as abundant as air, is, under a wide variety of circumstances, so plentiful as to barely require a notion of property to avoid conflict. And then, of course, there is air, which, absent a pollution hazard, isn't given any consideration at all.

When scarcity has been mentioned in relation to property rights, it has often been spoken of in the way I did just now: if a specific resource is "scarce", then property rights are useful in regulating its disposition, but if plentiful, it would be unfair or inappropriate or unnecessary to do so. Since prerecorded music seems to be plentiful, it is unfair to expect it to be restricted by intellectual property rights.

One serious concern that is not addressed by this analysis is the necessity of human effort and cooperation. Most of our possessions are not "found objects", they are produced through our intelligent effort. Nor are they produced by us acting alone as individuals. Without the cooperative effort of others we would have virtually nothing. In fact, as social animals, it is very likely that we could not survive at all, let alone survive in comfort, without the help and cooperation of others. Defining, respecting, and reinforcing our relationships with others is necessary for our survival and well being, and is the basic fact that creates the necessity for justice. It is from the necessity for justice that our conceptions of property arise.

Rawls, I believe, stated this best: The need for justice arises from our need to cooperate under conditions of moderate scarcity. If there is an abundance of resources and our every need is indeed fulfilled by found objects with minimal and individual effort, then mutual cooperation is unnecessary and justice is not needed. If resources are so constrained that no amount of cooperation can possibly alleviate our suffering, we must live a zero-sum life that is solitary, poor, nasty, brutish and short. Justice would be impossible. Only under conditions of moderate scarcity, where we need to cooperate and we benefit substantially by doing so, is a conception of justice both necessary and possible.

Note that this scarcity is a general and pervasive condition that demands a general and pervasive conception of justice. An artist (or other producer) cannot, ultimately, live well without our cooperation just as we cannot, ultimately, live well without hers. When we deprive a composer or recording artist of her just compensation, we are NOT depriving her of her music. We are depriving her of the means to obtain the food, clothing and shelter that she needs. Not to mention the Porsche that she covets.

And why should she, of all producers, be so deprived? What did she do to deserve this disrespect that seems directed to her particular productive capabilities? She is doing something for us, just as any other producer is, and she deserves something in return, just as any other productive person does.

She may even deserve a Porsche.

All P is IP

Some time ago I read, I think on "slash dot", the assertion that "intellectual property" is a contradiction in terms; that anything that is "intellectual" in nature cannot be construed as "property", which has to have some sort of tangible, physical existence. Apparently, for this writer, this was an intuitive truth that required no justification or explanation.

I had to smile at this and shake my head. To me, this view seems very superficial and even childish, as if something that can not be seen can not exist.

The truth is quite the opposite. There is no real distinction between what we term "intellectual" property and property in general. In fact, intellectual property is more prototypical of property than is much of what we consider "tangible" or "real" property. Intellectual property is the essence of property. All P is IP.

What is it that distinguishes something that is "mine" from something that is "yours"? It is the way that you and I behave with respect to it, and the expectations that we have for each other's behavior. If the bicycle on the sidewalk belongs to me, it is OK for me to get on it and ride away. If you take the same action without going through the ritual of "getting permission" first, it isn't OK and you can expect a very different response from me than if the bicycle were yours.

This difference in expected and permissible behaviors, while it centers around an object, is actually about our behavior with respect to one another. Respecting each other's property is basically a way of respecting each other, of according to each the dignity and respect due a fellow human being and treating each other the way we would expect to be treated. It is not all about an object. It is all about our relationship.

With "real" property - real estate - this is even more apparent. When I, the owner, approach my land, I step right onto it and proceed on my way. When others approach, I expect them to walk in a different direction, around my land, even if that isn't the most direct path to where they are going. In this case, our behavioral expectations concern what amounts to be no more than an imaginary "line in the sand". We may make this line apparent through the use of a fence or other marker, but more often we simply register a set of measurements, nothing more than an intellectual description, with a public official. These measurements are what turns a region of land into "my property".

Lines in the sand may be even more abstract. We speak, rightly, of ownership of the airwaves - the right to broadcast signals having certain electromagnetic characteristics within a specific geographic region. A radio frequency is created through a regulatory declaration, it is auctioned off, and thereafter may be bought and sold. Not "as if" it were property: it is property. And like all propriety, it is based on behavioral norms regarding what it is proper or improper to do, in this case based on a technical description of electromagnetic waves.

What has been termed "intellectual" property is simply another expectation regarding the behavior of others; in this case, with respect to a design or innovation that we have created and, perhaps, properly registered with a public official. We expect our creative efforts, to some extent or another, to be respected by others as a matter of right. Just as we expect others to refrain from riding off on our bicycle, to refrain from walking over our land or to refrain from interfering with our radio broadcast, we expect them to refrain from copying our creative efforts without our permission. This is no more, and no less, than any other property right.

All rights, privileges and immunities - including property rights - are based on behavioral norms and expectations. They are social constructs regarding our relationship to each other. They all reflect what we believe to be the proper way to treat one another, what we consider to be due respect in accordance with human dignity. All P is IP.