Property and Equal Liberty.
I was very much interested in the little story with which Mr. Tucker prefaced his comments upon my article on The Right to Authorship in No. 178. Lest the busy reader may have forgotten it, I will quote it here.
When I wrote my previous answer, said Mr. Tucker,
I foresaw that he would make precisely the reply that he has made. It would have been more merciful, no doubt, to have then and there assumed what the reply would be, and, by answering it in advance, prevented him from making it. But by a certain perversity inhering in my nature, akin, I fear, to that which actuates a cat in toying with its prey, I was led to allow him to attempt the seeming avenue of escape that still remained, leaving him to find out later that he had plunged into a cul-de-sac.
In this, I am sure, there is no fiction, only truth; but truth stranger than fiction. For what do we find when we turn to Mr. Tucker’s
previous answer? Any indication of playfulness or confidence? Not the faintest. On the contrary, we find a frank acknowledgment of the difficulty of the task.
Thus far, wrote Mr. Tucker then,
this has been a most interesting battle. To me I am sure it will prove useful whether I win it or lose it. To be forced to combat single-handed against five such gladiators as Yarros, Simpson, Donisthorpe, Fuller, and Bilgram develops one’s faculties immensely. Now we are asked to believe that, when in that serious state of mind, Mr. Tucker deliberately chose to be cruel and so far indulged his natural perversity,
akin to that which actuates a cat in toying with its prey, as to prepare a trap for me and exult in anticipation of my humiliation! This sort of mischief can scarcely be said to be useful or to develop one’s faculties immensely: nor is it reasonable to suppose that
gladiators are toyed with in such fashion. Yet we are asked to believe that the tale is absolutely true. Well, well, as I have said, we have no alternative but to believe and marvel at the strange things that do occur.
And so, when Mr. Tucker
argued that the publication of an invention practically takes away from all other men the liberty to invent the same thing for themselves, he knew that I
would answer: He knew this, and had his rejoinder ready. Read it again and admire it—if you can; for I cannot.
Let them shut their eyes, then, or stay in the house. They are not obliged to read, study, and look at the new invention. But if they do so read, study, and look, they voluntarily abandon their liberty to invent the same thing themselves.
The voluntary abandonment is all on the other side. Here we are, all of us, with equal rights to shut our eyes, or open them, to stay at home or walk the streets, and to exercise our native faculties. This is the normal condition, the status quo. Some man comes along with an invention and parades it in the streets; and we are told that, in consequence of this act on his part, we must either give up our liberty to walk the streets or else our liberty to invent the thing that he has invented! Not so fast, my dear sir. The boot is on the other leg. Were you compelled to parade your invention through the streets? Were you even invited to do so? No! Then why do you do that? And why do you ask us to protect you from the consequences? You want your invention to yourself? Then keep it to yourself. Nobody says you nay. But when you parade it in the streets, you voluntarily abandon your liberty to keep it to yourself.
Mr. Tucker has been repeatedly reminded by myself and by other critics of the necessity of carrying on his defence of communism in ideas without assumptions or question-begging. Is not the answer just quoted vitiated by the assumption that the publication of a thing necessarily involves the abandonment of the right to keep it to one’s self? I am tired of protesting against this assumption and of pointing out that this is just what Mr. Tucker is bound to prove in order to establish his position on intellectual property. I readily admit, however, that Mr. Tucker’s objection holds in the case of things which it is not necessary to examine and study; and I will allow that the man who parades a simple thing in the streets should not be protected in the monopoly of its use if men are really prevented, merely by looking at it, from inventing it themselves. In other words, I do not require men to shut their eyes or to stay at home. But as a believer in equal liberty I must stop here. It is self-evident that, in the case of a complex thing, or of a book, the voluntary abandonment is not on the part of the author or inventor, but on the part of the man who purchases and reads the book or goes out of his way and stops to study the invention. I have the same liberty as Spencer to observe, reflect, write, and publish. When I hear that he is engaged in writing a book on ethics, I am at liberty to engage in a similar task. When I hear that he has published a book,—that is, authorized by his agents to sell it to those wishing to buy, I still have the liberty to go and write and publish a book on the same subject. But if I go and purchase a copy of his work and study it, I deliberately take away my own liberty to write such a book as his. I have not been forced to read it, hence my liberty has not been infringed. This cannot be successfully denied, and I am entirely willing to leave it to logical minds to decide whether I or Mr. Tucker may claim victory on this point. But I wish the readers clearly to understand that upon the answer to this single and simple question depends the solution of the whole problem. The only question is, Does Spencer, by the mere fact of placing copies of his First Principles in the hands of his agents, take away my liberty to write my own book and originate any ideas on the subject? Mr. Tucker says, Yes; I say, No. If I am right, then property in ideas is sanctioned by the principle of equal liberty. If Mr. Tucker is right, then property in ideas is negatived by that principle. From the point of view of equal liberty, no other objection to property in ideas has been advanced, nor does any other seem possible. Convinced that every unprejudiced and logical mind must concur in my view of the matter, I consider this phase of the controversy finished and settled in my favor. It is Mr. Tucker, not I, who departs from Anarchistic ground; it is he who preaches the doctrine of tyranny and communism. I simply defend the principle of equal liberty, from which the right of property in ideas is a logical deduction. I protest against being covertly denounced as an
But, the reader may ask, even supposing that equal liberty justifies and sanctions property in ideas, is it not true, as Mr. Tucker has asserted, that property in ideas would bring about economic and literary effects of the most deplorable character? Do you then really adhere to equal liberty as to a fetich, and not simply as a means to happiness? I answer that I adhere to equal liberty as to a scientific social law.
A comparison of the various forms of the conduct of men in relation to their fellows in the fields where these forms have been the most thoroughly tested has revealed the fact that the proportion in which these forms make for happiness corresponds in the long run very exactly to the proportion in which they observe and preserve equality of liberty. Centuries of experience have so established this fact to the satisfaction of the greatest political philosophers of today that they consider this generalization as a social law, and use it as a test of proposed policies in fields untried or comparatively unexplored. If it is not to be used in this way, it is useless, or nearly so. To serve as such a test, and to do away with the necessity of empirical observation in each new case, is the main function of a generalization. I do not choose to place Mr. Tucker’s
fancied prescience above other men’s science, and he should be the last person to ask me to. If equal liberty in this particular sphere would really be disastrous, then equal liberty is not a scientific principle and there is no such thing yet as social science. Believing as I do that we have a social science, and that equal liberty is the first principle of social welfare, I cannot but dismiss Mr. Tucker’s gloomy forecast of the results of equal liberty in the realm of intellectual property as the product of fear and prejudice.
Mr. Tucker’s effort to make out that there is only a surface similarity between his reductio ad absurdum of property in ideas and Mr. Bilgram’s
attempted reductio ad abusrdum of no-property in ideas, and that beneath the surface similarity there is an essential difference, is not crowned with success. He never asserted for a moment, he tells me, that,
if Mr. Bilgram’s claim that a denial of property in ideas would leave us without a literature should be thoroughly established, the fact would not therefore prove either that such property is consistent with equal liberty or else that equal liberty does not always make for happiness and is a much less reliable reliable guide than we now suppose. His objection to Mr. Bilgram was
that he refused to consider, on the ground of irrelevancy, the theoretical argument that property in ideas is consistent with equal liberty, but instead, without pointing out any flaw in this argument, insisted that it must be unsound because in his opinion, unsubstantiated by any facts, and even against the facts, and against the opinion of most students, denial of property in ideas would destroy literature.
I cannot admit that this fairly and accurately describes Mr. Bilgram’s case. Though I differ from Mr. Bilgram, I am still bound to recognize the fact that
most students do share his opinion that the denial of property in ideas would destroy (or, at all events, cripple) literature. Mr. Bilgram’s opinion is substantiated by facts, and by numerous facts; and upon these facts
most students base their opinions. These facts, however, fail to convince me, as they fail to convince Spencer, and therefore I, like Spencer, feel that the only way to settle the question is to appeal to first principles, to subject the matter to the test of equal liberty. However, let us look at Mr. Tucker’s attempted reductio ad absurdum. He says:
I cited as a possible result of absolute and perpetual property in ideas the destruction of Spencer’s works for all time by the descent of the copyright to a bigoted Catholic heir. This possibility is not a doubtful matter. It is undenied and undeniable. In fact, any one who looks at the matter without bias will admit the strong probability that such a result would ensue sooner or later, if not in the case of Spencer’s works, then in the cases of others equally important. And this being true, it shows property in ideas to be absurd, just as Mr. Bilgram’s claim, if it were true, would show no-property in ideas to be absurd. Manifestly it did not occur to Mr. Tucker that one might look at the matter without bias, admit the strong probability of the result feared, and yet flatly contradict the unsupported assertion that the absurdity of property in ideas is thereby triumphantly established. Mr. Tucker overlooks the important fact that nobody has ever claimed that the application of equal liberty alone would result in the greatest social wellbeing. Equal liberty is not the sole condition of social happiness; it is the first and most essential condition, but there are other conditions to be fulfilled. It is not claimed for equal liberty that it is fully competent to free us from all inconveniences and annoyances and troubles; what is claimed is that disasters and calamities threatening the social fabric would be averted and rendered impossible by compliance with that condition. Disasters, not inconveniences. The destruction of the works of the greatest of philosophers could never amount to a great social calamity. There are many philosophers in the world, thank the gods! and the greatest of them is not sufficiently great to have the whole civilized world at his mercy. Besides, the total destruction of any really valuable work is an impossibility. A valuable work is sure to find many purchasers, and the copies sold can never be destroyed by the repentant author or his heirs. Nothing will prevent a man from keeping his copy or from lending it to his friends. All of which conclusively shows that Mr. Tucker’s attempted reductio ad absurdum is based on a misconception of the remedial power of equal liberty.
Nor is this all I have to say in confutation of Mr. Tucker’s argument. In confidently saying that the undeniable possible destruction of Spencer’s works shows property in ideas to be absurd, Mr. Tucker assumes the very point in dispute,—namely, that Spencer’s works belong to the world. In discussing property in ideas we are discussing this very right of Spencer or his heirs to destroy his works. If property in ideas is consistent with equal liberty, then Spencer has the right to destroy his works and laugh at the
world’s impotent rage. The
treasures are his, not the world’s. If, on the other hand, equal liberty negatives property in ideas, then of course he cannot destroy what is not his, but the world’s, treasure. Mr. Tucker’s reasoning is something like this:
See how unspeakably absurd you are in contending that Spencer’s works are his property to use and abuse! Why, if you allow Spencer to do with his books as he pleases, he may burn them up, destroy them altogether, and thus abridge our liberty in depriving us of our treasures and our property. Mr. Tucker must see that he cannot overthrow my claim by paraphrasing it, while in saying that our liberty is abridged he simply begs the question.
My objection to Mr. Tucker is, then, that, besides begging the question, he insists that property in ideas must be an absurdity because, in his opinion, unsubstantiated by any facts, and even against the facts, and against the opinion of most students and of many
gladiators, as well as of some of the greatest of the gladiators’ teacher, recognition of property in ideas would destroy literature and liberty.
Now, a word with Tak Kak. Mr. Tucker assures Mr. Simpson that
the spook of immaterial property is effectively disposed of by Tak Kak, the spook-destroyer. This is not quite clear. Does it mean that, having assumed that immaterial property is a spook, Tak Kak disposed of it in some way, or that Tak Kak disposed of immaterial property by showing it to be a spook? For enlightenment, I turn to Tak Kak’s third article (with the first two articles I have not space to deal), and find that he undertakes to dispose of immaterial property by demonstrating its incompatibility with equal liberty. But what is his method? He begins by putting the cart before the horse. Tak Kak tells us that he does not admit Spencer’s claim to the exclusive use of his original ideas, that he will not sign the social compact if property is to be given an idealistic extension, and that he holds that ideas, once published, are the property of as many persons as comprehend them. All of which we duly note. But where is the argument showing that, if property is given an idealistic extension, the terms equal liberty will cease to mean anything else than reciprocal invasion? Tak Kak does not furnish any. Do you know, dear reader, how he destroys the
spook of immaterial property? Simply by declaring that Mr. Tucker’s argument that one who has seen an invention is debarred in that respect from becoming an inventor,
is a settler. In other words, Tak Kak endorses Mr. Tucker’s argument, and Mr. Tucker (quite naturally) thinks that Tak Kak has disposed of the spook of immaterial property.
Seriously, Tak Kak’s method of defending his position is strangely unscientific. He ought to know that we cannot à priori decide what is property and what is not, and that the right to property is limited only by the right to liberty. The question, after all, is simple. We agree upon the general principle of equal liberty, from which the right to property is a corollary. If I show that the right to property in ideas is unquestionably valid from the point of view of equal liberty, it is of no avail to draw arbitrary distinctions between  material property and immaterial property: all such distinctions are themselves immaterial. If you show me that property in this or that thing—whether material or not—necessarily involves a violation of equal liberty, your case against such an extension of property is fully made out. Of course, we may decide some day to reject the general principle of equal liberty and trust to—brute force; but such a contingency we need not now pause to consider. I appeal to Mr. Tucker and Tak Kak to use equal liberty
as a test, as the sole test, in this
comparatively unexplored field of property in ideas. Their empirical observations I care nothing about. Is or is not property in ideas logically deducible from the principle of equal liberty? I have shown that it is, and have refuted the solitary argument which Mr. Tucker and Tak Kak had relied on. I have unsettled their