As far as Kinsella is concerned, he has written a deeply thought out and complete theory of IP that I will respond to in full length book form. Kinsella's theory deserves serious treatment and I will not attempt to address that discussion in a blog post.
However, Tucker's views do not have the same rigor as Kinsella's and can be demolished in a drive by shooting manner. I will attempt to do so here by examining his article, Back to Basics on Property and Competition.
He begins by writing:
Zeroing in on a topic like "intellectual property" offers a chance to clarify fundamental notions in economics generally. You think you understand something like property rights or the nature of competition — you have studied the ideas for years! — and then a challenge comes along that blows everything up. It's an opportunity. Time to think and think again."Clarify fundamental notions in economics generally," really? This is not a widely held view by economists. In fact, the great Austrian economist Ludwig von Mises went out of his way to slam Tucker's type of view. He wrote in his magnum opus, Human Action that intellectual property discussion had little to do with general economic thinking:
It is beyond the scope of catallactics to enter into an examination of the arguments brought forward for and against the institution of copyrights and patents.From this stumble, Tucker goes on to tell us that:
If you have an idea, it is yours. You can do with it what you want. If you share it (sing, speak, broadcast, let others see the products of your ideas), others then have copies of it. They are entitled to do with their copies of the idea precisely what you can do with your idea. They can use it how they want provided they don't prevent others from doing with it what they want. This is a simple application of the non-aggression principle that governs a free society. Whether it is fashion, language, know how, or whatever, people are free to copy.This is a huge failure in logical rigor, it is a tendency that pervades Tucker arguments.
Let us put the above paragraph in some kind of logical form and see what happens:
A. If you have an idea, it is yours.
This is true.
B. You can do with it what you want.
This is also true.
C. If you share it (sing, speak, broadcast, let others see the products of your ideas), others then have copies of it.
This may or may not be true. If you sing something and it is not recorded than you might be able to argue that a person has a copy in his mind, but this is at least a bit of a stretch. A stretch students listening to a college lecture can easily relate to when taking a test. You may have heard the lecture, but it doesn't mean that you have a full copy of it in your head when you are taking a test based on the lecture.
Thus, as far as point C is concerned, if we are charitable, we can say that Tucker is just not completely rigorous in his argument.
D. They are entitled to do with their copies of the idea precisely what you can do with your idea. They can use it how they want provided they don't prevent others from doing with it what they want.
Tucker makes this point as a declaration rather than offering any proof as to why it should be so. In fact, it is easy to imagine plenty of cases in a free market society where this doesn't occur and control of intellectual property remains controlled by the original holder of the information, based on an agreement between two consenting adults. I may, for example, tell you a secret only if you agree not to tell anyone else. This could not occur in Tucker's world, secrets couldn't exist.
In business, non-disclosure contracts are quite common. I may want to show you my project because I may want financing from you, but I don't want to reveal the workings of my business unless you agree not to disclose the information to anyone else.
Tucker tends to pose all IP situations as a battle with the government, but the above two examples show IP protection can evolve in the private sector, even in a world without government.
Tucker also uses utilitarian arguments that tend to suggest that elimination of IP is always the way to advancement. But clearly, private agreements in Tucker's world would not be enforceable, so it may result in some businesses choosing not to disclose their projects to potential financiers for fear their projects might be stolen without non-disclosure protection. Thus, in Tucker's non-IP protection world, some projects may not get to be financed to the degree they would where non-disclosure agreements would be allowed.
Further, Tucker can't prove that some writers, singers and other creators of intellectual property will be willing to produce product if their works aren't IP-protected. Some may chose not to. Thus, his claim that the elimination of IP will improve production for overall society is something that can not be asserted as a fact, since it will be impossible to measure net production, especially because of the difficulty in measuring product that isn't produced because of lack of IP protection. And we also run into the problem of what is good "for all of society." We can't measure value over individuals, thus it is impossible to state, as Tucker does, that preventing people from entering into IP private contracts will result in a "greater good" for overall society.
E. [Non-IP ] is a simple application of the non-aggression principle that governs a free society. Whether it is fashion, language, know how, or whatever, people are free to copy.
If a person agrees to provide information to another only if the other person agrees not to share it, it is difficult to see how it is not a violation of contract (an aggression), if the recipient of the information shares it with third parties. Thus, non-IP is not "a simple application of the non-aggression principle." In fact, dictating that a contract can't be enforced that two people initially agreed upon is a case of aggression against the party that is being damaged by the lack of enforcement of the contract.
And if an agreement can be made between two adults to not further disperse intellectual property, why can't one person do it with multiple people, say for a book or a song? (Note: I am aware of Kinsella's argument of a person agreeing to not to pass on the information and then doing so and thus there would be no obligation to protect IP by the third party receiver. I will address this in my book)
Finally, to conclude analysis of this Tucker paragraph, it should be noted, there is no logical progression from points A to E. They are separate sentences in a paragraph that suggests a logical flow, of which there is none. There is no If A then B, then C, then D, then E. In fact, standing alone, we can see that some of the sentences are true, others are unclear and still others false.
Tucker goes on:
"Intellectual property" is the completely wrongheaded idea that, in the words of the authors [of the book Against Intellectual Monoploy], someone has the right "to monopolize an idea by telling other people how they may, or more often may not, use the copies they own." This strikes at the heart of progress because it means not improving what exists but rather prohibiting others from using and improving it.Tucker here again is ignoring the possibility that two people might enter into an agreement, where one agrees to keep some intellectual property, provided to him, private. There's nothing "wrongheaded" about it. Indeed, if we understand the concept of Austrian subjective theory, as Tucker has proclaimed he does, we know it is impossible for an outsider to proclaim scientifically that an agreement between two consenting adults is "wrongheaded." We may have our own opinion about a particular agreement and think it wrongheaded, but this is quite different from declaring, as Tucker does, that all such agreements are "wrongheaded." Among many other things, Tucker here is claiming that it is "wrongheaded" to agree to keep a secret.
Yup in Tucker's world, there would be no secrets, no non-disclosure agreements, no agreements between consenting adults. It will be Tucker's rules for everyone, even if people chose to make private agreements, in Tucker's world they won't hold. Tucker writes:
What can you copy? Anything and everything. This is not "taking" anything from anyone. The original idea owner still has his. Other people now have their copies, and are free to improve it.How far is Tucker willing to take this bizarre thinking? All the way:
Let's say I write a book and publish 1000 copies. They are all mine. When I sell one, I now have 999 remaining and the new owner of the one book, in a free society, is free to do with his copy what he wants: use it as a placemat, throw it away, deface it, photocopy, and even republish it. You can even re-republish it under your own name, though that would amount to the socially repudiated vice of plagiarism (vice, not crime).Here Tucker sneaks in his anti-IP view as though it is a core principle of a free society. It is no such thing. Indeed, in Tucker's non-IP world, no IP contracts are enforceable. How is that freedom, if both parties to a contract agreed to the original terms? It is nanny state thinking---ruling from above, despite the desires of consenting adults. It's Tucker's rules, superseding the right of two people to enter into a contract and have the contract upheld.