Eigentum über Ideen in Lockes Rahmen (IH)

Zwei Anwendungen der Locke'schen Überlegungen auf "geistiges Eigentum"

Richard A. Epstein: Liberty versus Property? Cracks in the Foundations of Copyright Law

Ein natürliches Recht auf Eigentum? Der Einwand John Rawls'.

The starting point for the justification of tangible property is the famous statement of Locke that reads “Though the earth and all inferior creatures be common to all men, yet every man has a property in his own person; this nobody has any right to but himself. The labour of his body and the work of his hands we may say are properly his.” Here, of course, the point is treated as a departure from the common pool norm for all that follows in his system. The most important deviations are the rules that speak about the expenditure of labor as a means to acquire private property by “mixing” one’s labor with land or other external objects, which are said to be owned in common. However, this theory is subject to a wide range of important objections as it relates to liberty, property and their intersection. Many of these objections bear on the question of whether we should recognize property rights in general, or copyright in particular.

At the starting point, Locke’s theory does not read like a paean to utilitarianism in particular or any species of consequentialism in general. Ironically, it does not appear to fall into the class of natural law theories that rest on some “backward looking” deontological claim, in which the question of right depends solely on all that has gone before, and not on those things that are likely to come afterwards. Nor is it clear that the claims can be conveniently slotted into theories of this sort. The most obvious point of criticism is that there is quite literally nothing that anyone has ever done to "deserve" the creation of ownership rights in his own person. Further, it does not matter what terms are used, whether autonomy or self-ownership—assuming that some differences ride on the choice of terminology. The blunt truth is that these tangible things are gifts of nature, in the sense that no one has committed any form of labor to create them. The point receives its most forceful elaboration in the critiques that John Rawls has made of the claim that individuals own, or are otherwise entitled to their own (not normative, but descriptive — or so one assumes) talents. Rawls noted that it is "morally arbitrary" for any individual to be treated as the sole owner of his own talents because the determinants of their value lie at the random fortunes of birth and upbringing combined with the demand for these talents in some concrete social setting, which in some settings the talents are awarded enormously, but in others not at all.

We can explore this counterargument to Locke on a number of grounds. First, many of our most important endowments from good health to good character and intelligence do depend upon the luck of genetic lottery, many of which no legal system can correct. For example, people born with fatal conditions, such as Tay-Sachs disease, will live short and unhappy lives no matter what form of income distribution is implemented in their favor. However, the Make-A-Wish Foundation does marvelous work for young persons with fatal maladies. It does not equalize fortunes across individuals, but at the same time it would be a mistake to adopt the posture of genetic determinism to the exclusion of social factors. Once we control for social factors, it seems indefensible to say, as a general matter, that across the board individuals’ successes and failures depend in large measure on circumstances beyond their control. There are many people who are raised in adverse circumstances and achieve success in life because they have, by dint of their own labor, developed the character and skills needed to allow them to succeed in the general world. By the same token, we all know many individuals who, as children, enjoyed every advantage of family and fortune only to make a mess of their own lives. It takes a good deal of confidence to believe that we have a strong knowledge of the determinants of individual success.

The Rawlsian response could come in the form of a regression of the sort that claims these personal virtues are derivative in large measure on the labor, care and comfort supplied by parents, often at great sacrifice to themselves. These individuals might have some claim of moral desert in virtue of what they have supplied their children. They have indeed engaged in activities that qualify under some "desert theory," looking backward to their past actions. But so what? If they choose to make gifts of services to their children, why cannot they transfer the fruits of their labor to their children in the same way that they leave them a share of stock or a family keepsake? Perhaps the answer lies in the idea that we do not allow individuals to make gifts of what they have created, even to their loved ones. There is a long tradition of propertied individuals such as Andrew Carnegie and Bill Gates who are in favor of very steep death taxes. If this is correct, the argument has shifted, at least in part, from justice in the acquisition of liberty and property to justice in transfer. The level of control that the state (i.e. other people) exercises over each individual becomes ever more extensive. If people do not own their own talents, they cannot transfer the fruits of their labor to anyone else either, or so it would appear.

Ein Argument gegen Rawls

The strongest opposition to the idea that individuals do not deserve to own their own labor comes, however, from this simple question: if I do not deserve the fruits of my labor, genetic endowments and parental assistance, then who does? If these elements are regarded as insufficient to establish a claim that each person owns his own labor and the fruits thereof, on a desert theory, they are surely not sufficient in any form or combination to allow any other person to claim those ownership rights in my labor. Reciprocally, I cannot claim ownership rights of any sort in their labor. After all, what possible desert do we have in the labor of others to which we have contributed nothing of any sort? Therefore, the rejection of the Lockean claim on individual self-ownership cannot be read as an argument that it fails the criterion of "desert," where the implicit subtext is that some other unspecified allocation passes that test. Quite the contrary, if the Lockean theory fails because it does not meet the standard of desert, then no other desert-based allocation is possible. Nor should we think otherwise. Nature (in the literal sense) has provided some freebies for us all. So long as there are unearned elements, it is not possible for all things of value to be earned under any version of the desert their. The idea of desert becomes a siren and a sink-hole. We have to look elsewhere to justify any theory of property, private or common.

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At this point we can start to see the connection between the traditional natural appeal to theories of desert that rely on the labor theory of value, and the consequentialist situation that seeks, as I would have it, to create rules that in the long-run create win/win situations — call these Pareto improvements — for the vast run of the population. Each of us, ex ante, is better off waiving any inchoate claims against the labor of others on condition that they waive their claims in return. The purpose of this massive renunciation of weak class claims is not to guarantee some perfect allocation of the goods of the universe. It is the more mundane task to identify at low cost clear owners of labor so as to assure the security of investment and exchange that promotes long term productive wealth. It is not an accident that those who accept the self-ownership of individual labor tend to be strong devotees of the market system, because they see the deleterious effects that come from the perverse incentives that arise from any system that is blind to selfinterest and purports to operate on the principle "from each according to his ability, to each according to his need." It is only those who remain mired in philosophical doubt that see the ambiguities over desert as yet another nail in the coffin of market capitalism. Engaging in a case-by-case examination of the determinants of desert lets philosophical doubt sow administrative confusion in the countless practical decisions of each day.

Der Kommunismus droht.

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Und die Freiheit?

One line of objection is that this definition of property remains necessarily inconsistent with the broad definition of liberty that is part of the endowment of each person — the precise claim that is urged with copyright. That liberty includes the ability to go where one wills, and this right of movement is necessarily limited by the creation of any system of private property, which converts free movement into trespass. The point has been argued extensively by Robert Lee Hale and G.A. Cohen, both who see the creation of any law of trespass as a limitation, often unjustified, on individual freedom.

The blunt truth is that this challenge cannot be turned aside by some pat analytical response. It is conceivable that we could treat land as a commons like water and thus prevent its permanent occupation by any one. Early nomadic tribes followed just this pattern. However, the reason we are not still in this primitive state are the enormous advantages from the privatization of land, without which no one would invest in permanent improvements at his own expense that could be snatched away by anyone. The short answer to the question of why the law confers private ownership of these resources is the same as it is for labor. It works to the long-term advantage of everyone behind a veil of ignorance, so that these limitations on liberty are justified by the gains that they yield from the social ownership of property. The losses that people suffer from exclusion are small compared to the gains that they get both from their ability to privatize their labor and from their ability to enter into trade with those who have engaged in privatization.

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Konsequentialismus

The last distinctive element of land is the rule that allows for acquisition of the surface to cover the rights to the earth (and minerals) below and the air above. Land is not two-dimensional, but it is not practicable in any way to require individuals to expend huge resources in order to stake out claims. Thus, we again encourage the private protection of some “unearned increment” because the key task of the system is to reduce the labor and complexity that is required to reduce natural things to private ownership.

A legal regime that requires individuals to expend labor that is equal in value to the property acquired reduces the value of the property to zero. Any system that requires individuals to run through hoops in order to acquire these interests in property reduces their value pro tanto. Again, from an ex ante perspective, it is in society’s best interest to have as few barriers to the creation of private ownership as possible, and not as many as could be imposed.

In the end, therefore, any exploration of the rules that govern the acquisition of property have the same feel as those that deal with liberty. In both cases, there is an unearned increment of talent or wealth that is not deserved under some strong theory of individual moral desert. That objection, however, carries little weight in the general case because, if true, it means that no one else could mount a claim based on desert either. Therefore, the best solution is to develop some cheap rule that allows individuals to mark off property as their own as cheaply as possible. It is better that the unearned increment be held by someone, rather than it be lost in the morass of competition to acquire ownership. With both property and liberty there are limitations that may well make sense. For example, one major issue is the common pool problem, which results in the overhunting of certain forms of wild animals that at common law are subject to unlimited capture. But these limitations are not designed to set liberty in opposition to private property, nor to challenge the legitimacy of either. Rather, they are designed to continue the process of creating long-term social improvement by sensible incremental modifications of a system of property rights. These issues are not without their importance for the area of copyright, where they help to frame so much of the current debate over the subject.

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Justin Hughes, The Philosophy of Intellectual Property

Epstein directly, albeit unknowingly, points out a critical difference: we are not in possession of any particular external objects by a kind of natural necessity. If we were, the need for property laws would be greatly diminished. Each person, like a tree, would be rooted to his own parcel of external objects; this would be "of natural necessity," and no one would try to displace another from his natural and necessary attachments. Precisely because "natural necessity" goes no further than the mind/body link, reliance upon the "possession" of body as a foundation for a possession-based justification of property is a bit disingenuous.

"das Leben nehmen"; "Sie ist ihrer Sinne mächtig"; "Sie besitzt große Ausdauer".

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We can justify propertizing ideas under Locke's approach with three propositions: first, that the production of ideas requires a person's labor; second, that these ideas are appropriated from a "common" which is not significantly devalued by the idea's removal; and third, that ideas can be made property without breaching the non-waste condition. Many people implicitly accept these propositions. Indeed, the Lockean explanation of intellectual property has immediate, intuitive appeal: it seems as though people do work to produce ideas and that the value of these ideas -- especially since there is no physical component -- depends solely upon the individual's mental "work."

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The creativity we perceive in an intellectual product may be either in the core idea or in the core idea's execution. I suggest that when we readily can separate the two, execution always seems to involve labor, but it is not always clear that the creation of the idea involves labor. Ideas often seem to arrive like Athena -- suddenly they are here, full and complete. Like Zeus, we may have a headache in the process, but it is some unseen Minerva who puts in the labor.

Yet our inability to formulate any clear separation between idea and execution suggests that we should treat them as one. This apparent inability is reinforced by occasions in which the "execution" step begins before the idea. In many fields, one has to do extensive research to create a necessary launching pad for a new idea. A graduate law student writing his doctoral paper made the telling comment, "If I had six more months to work on this paper, it would be an original idea."

The Lockean conception of idea-making provides another ground for treating idea and execution as a single event. Viewing new ideas as plucked from some platonic common may be reification in the extreme. Yet in that view, the ideas already exist and the chief labor is transporting them from the ethereal reaches of the idea world to the real world where humanity can use them. If ideas are thought of as such preexistent platonic forms, the only activity possible is execution, which consists of transporting, translating, and communicating the idea into a form and a location in which humans have access to it.

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This complete exclusion is impossible for two reasons. First, any property scheme which completely excludes third parties from ideas must enforce its restrictions in ways incompatible with our notions of privacy and individual freedom. Second, successful policing of such exclusion probably would be impossible. This impossibility can be thought of in either technical or economic terms. For the foreseeable future, practical considerations will limit the ways in which people can be excluded from intellectual goods. By any standard, thought-police would look more like Keystone Kops than like the KGB. Such thought policing would certainly not be cost effective. Historically, the only time the cost effectiveness of policing has not been a controlling factor is when the police enforce the claims of the sovereign and not the claims of individuals. Police states guard the interests of the state, not those of persons.

As long as complete exclusion cannot or does not happen, ideas will be available to people in their own thoughts even though these ideas already have become someone else's property. Through this availability, one idea can lead to still more ideas. In other words, once a "new" idea has been put into intellectual commerce, once people know about it, it leads to an "expansion" of the common, or of the accessible common. New idea X may be the key to a whole new range of ideas which would not have been thought of without X. Assuming the Platonic model, putting X into intellectual commerce does not increase the common so much as it enhances the abilities of people to take from the common; it gives people longer arms to reach the ideas on higher branches. In this view, X just makes new ideas Y and Z more easily discovered by a wider range of people. When the range of people and/or ease of discovery is dramatically improved, one can think of the common as being practically enlarged.

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Earlier I described two broad categories of ideas to which ascription of private ownership is denied. The first is the category of common, "everyday" ideas, such as thinking to wash one's car, to add paprika to a quiche for coloring, or to tell mystery stories to your cub scout troop. The second is the category of extraordinary ideas like the Pythagorean theorem, the heliocentric theory of the solar system, or the cylindrical column in architecture.

One reason that we do not permit property rights in either category of ideas may be that doing so would involve tremendous reallocations of wealth toward the property holders of these ideas. If we had to pay a royalty each time we told a ghost story or walked the dog, unprecedented wealth would concentrate in the hands of those "holding" the most common ideas. These common, everyday ideas are too generically useful to allow someone to monopolize them. The common would not have "enough and as good" if they were removed.

The same is true of extraordinary ideas. This category, however, actually contains two distinct groups of ideas. First, there are ideas that are extraordinarily important because they disclose facts about the world, such as the Pythagorean theorem and the theory of electromagnetism. In the case of electromagnetism, the Supreme Court ruled that Samuel Morse could not monopolize the general idea of using galvanic current for long-distance communications, although he could monopolize his particular process for exploiting the idea.

A second group of extraordinary ideas -- which contains ideas like the architectural columns -- may not be monopolized because of their widespread public use. At first, this sounds like a poor argument: that the idea of a column is widely used may mean it is a "public idea," but that is hardly a self-evident reason why it must be public. Yet widespread use of something, like columns and vaulted ceilings, has another effect: it makes a particular idea appear to be a basic truth or process. At some point, one hardly can imagine the larger social organization without the lesser object. Columns would appear as a far less basic truth to cave dwellers than to those who inhabit a post-Hellenic world in which columns prevent our buildings from crumbling into impromptu pyramids.

In short, some ideas become "depropertized." Originally, they could have been subject to private ownership (unlike the first kind of extraordinary ideas), but the pressure to keep them in the common increases as the ideas become increasingly important to the society. As an idea becomes extraordinary, it is clear the common will not have "enough and as good" if the rights to the idea continue to be privately held.

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