A Logical Advocate.
I had intended to make some comments upon Tak Kak’s last chapter on copyright, as well as to notice the amusing passage-at-arms between Mr. Lloyd’s metaphysical Own Advocate and the dull Devil’s Advocate in his service; but I am glad to find myself relieved from two-thirds of this task by the receipt of a letter from a friend in which the logical reader may find most of my opponents’ objections fully met and covered.
My friend writes:
Liberty containing your additional remarks on copyright has just reached me and has been read with interest. I think your observations quite just. . . . Controversially, however, I fear your last remarks have weak points: as where you say that
the objection, if valid, destroys the Anarchistic position, etc., and yet say below:
But the truth is that there is no reason for applying the principle, etc. There is no real inconsistency in your statements I think, but an apparent one perhaps. The latter statement I think is cogent and, as you say yourself, new. It must have occurred to all of us, but has not been expressed before, I believe. And there can be no doubt that the consideration suggested is fundamental. In the conception of property in land which limits equitable ownership to occupation (meaning use) the element of fixity in the amount of land is essential. If the amount of land were indefinitely augmentable, I think the arguments which show that equity requires ownership to be limited by use would not seem to us valid. But, as you say, no such limits to ideas, nor even to commercially-valuable ideas (a much smaller quantity) are discernible. And hence the personal-use limitation loses its force. I must say however that I do not agree with you that the preventing-of-others-from-discovering objection has any force whatever. First, suppose discovery by No. 1 prevents No. 2: what is it that has prevented No. 2—is it our politico-juridical system? Not at all. The thing that prevents No. 2 (if he is prevented) is simply a physical fact—a phenomenon of nature—an accident of time. The notion of justice is irrelevant to a deprivation so caused. Second, I deny that prior discovery alone does prevent. There must be added contact with the thing discovered, and understanding. I deny that any man seeing a locomotive in action is thereby prevented from originating the locomotive. In this case deliberate choice—leading No. 2 to study a thing already existing in preference to studying his own mind (out of which a locomotive might spring if he chose that course)—is necessary in order that priority should act as a bar to new discovery. Finally, I deny that it is possible to determine what is just by considering possible results. We must appeal to the generalization of equal  liberty and abide by the decision. As you have repeatedly and pertinently insisted what is there in the act of publication that destroys the right of exclusive use acknowledged to exist in the first place? Nothing, absolutely nothing. A man, having originated, being for the moment in exclusive possession, chooses to sell—what? his whole possible usufruct (at $1.00 per volume)? No. He chooses to sell a portion of his whole possible usufruct, e.g., as much as a man can get from one copy of his book—or as much as an operator can get from the use of one machine. So much, and no more, he agrees to sell at $1.00 (say) for a book, or at $1,000 (say) for a machine. These, it seems to me, are the clear implications when
ideas are sold in printed volumes or industrial implements. It is open to any one to assert that this makes us the slaves of a small aristocracy of creative intelligence: I reply that it is impossible that adherence to equal liberty can result in an unjust inequality.
There remains nothing for me to consider but the contention as to the non-invasive quality of the act of copying, or imitation. I had charged Tak Kak with seeking to decide à priori what property is and with making arbitrary distinctions between
material objects, properly appropriable, and
immaterial objects, claimed as not rightly appropriable. This charge he was prompt to
repel. But what do we find him maintaining in his last contribution?
Property, he says, in the economic sense,
is alienable. The giver or seller parts with it in conveying it. This characteristic distinguishes property from skill and information. That this characteristic distinguishes, I admit cheerfully; but I deny that the right of property is in any wise affected by this distinction. To say that only that is property which is alienable, is arbitrary, is an à priori assumption. Tak Kak continues:
Bread is property. Those who hold that the art of baking is property, hold that it is alienable, but monopoly consists in the attempt to make property of liberties, discoveries, sciences, and arts by a pretended or forced alienation. This, Tak Kak adds,
may be no argument. If so, I prefer to make none. This, I say, is certainly no argument, as I accept neither the definition of property nor the definition of monopoly above given. Property is limited only by equal liberty, and nothing possessed consistently with equal liberty may rightly be stigmatized as monopoly. Here I am reminded that both Tak Kak and Mr. Lloyd profess anxiety to square their position with equal liberty. How successful their attempt is, remains to see.
Tak Kak prefers
the direct examination whether liberty is invaded by copying, but says that,
of course if sufficient care is taken in making the more roundabout deduction via property the corollary of liberty, it must result the same. And he also reminds us that, if
the inquiry via the corollary seems to some persons to show an infringment . . . . it will be well for them to examine all the factors, to discover where there has been a false principle admitted. I confess that I do not see how a direct examination is possible in this case; and it seems plain that the difficulties surrounding the question of property in ideas are precisely due to this impossibility of a direct examination. It is utterly unfair and unwise on the part of my opponents to continue to darken counsel and intensify the confusion prevailing in this division of ethics by such inconsequential talk as this:
The fact that A occupies and uses a piece of land prevents B from occupying the same land, but there is nothing in equity to prevent his taking up a similar piece of unoccupied land and farming it in precisely the same manner. This is imitation, not invasion. . . . First discovery has nothing to do with just ownership anyhow. . . . Discoveries can be repeated—that is, copied indefinitely without invasion. The question whether invasion, in certain cases, is invasion or not cannot be settled by a dogmatic declaration that imitation is not invasion. The demand for a
direct examination is an idle quibble and a mockery when it is universally acknowledged that a direct examination is impossible. I know and concede that it is entirely possible to copy or
imitate an author without invading his castle and killing or disabling or otherwise injuring his person. The question is whether the act of copying itself is not an invasion of the author’s liberty; and that cannot be settled by any direct examination, but via property in ideas the corollary of liberty. If property in ideas can be shown to be a logical deduction from the equal liberty principle, then it is an invasion and a wrong to copy or
imitate the author without his consent, all metaphysical subtleties and distinctions to the contrary notwithstanding.
That property in ideas is a logical deduction from equal liberty has been clearly demonstrated in previous articles, and need not be argued here.