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I think PG is actually arguing something closer to the opposite of this - instead of property being a natural concept with a single, universal, and unchanging definition, it is something a bit more ephemeral. A smell is valuable property on the moon, but not on the Earth. A song was valuable property twenty years ago, but twenty years in the future...who knows?

How this definition changes has a lot to do with technology, society, and human nature. That last one gets pretty close to 'natural law', but there's a lot more going on there as well.

That's the idea of natural law. The concept of "owning" something in nature that is not scarce is not a natural concept.

The notion that property has value is pretty much a universal concept.

Agreed. It's pretty clear that PG is actually advocating a pragmatic approach to moral reasoning. Natural Law, as I understand it, advocates a moral order which is evident from the natural order and which exists before any human understanding of right and wrong. If our understanding of property changes with the circumstances of our society, then the right of property doesn't emanate from the natural order but from the human order.

Interestingly, there have been a number of attempts to reduce property rights to first principles. Modern Libertarians often consider property rights to be the first principle, but older classical liberal philosophers such a Locke believed that property was an offshoot of labor. That is, man has a right to product of his own labor and only by labor and continuous use can he claim to properly own something. I think this approach has some merit as it neatly gives voice to one of the reasons we feel that some forms of theft is justified and others are not.

Most libertarian exegeses on property rights take a vaguely Lockean tack. Of course, a Lockean tack may justify intellectual property as the fruits of intellectual labor.

But there are two opposite concepts of morality that people apply to property relations: in one view, the moral 'negative' is attached to depriving a person of what he has justly earned or created; in the other view, the moral 'negative' is attached to obtaining the benefit of what you have not yourself earned or created.

I'd argue that most libertarians would adhere to the first view, which roots the moral principle in a manifest social context - i.e. the the harm one does to others - as opposed to the latter view, which roots the moral principle in a more solipsistic context - which I assume the be the psychic or spiritual harm one does to oneself. (This is expressed in consequentialist terms, of course, but I'd expect there to be an equivalent deontological dichotomy).

It's probably valid to describe the former as a Lockean view, but I don't see how it could justify the extension of property rights to non-rival and intangible goods, such as ideas, since it's literally impossible to deprive anyone of them in the first place.

You have to examine what it means to deprive one of property though; certainly, depriving one of their property's commercial value is a deprivation. Certainly if I seize your house and rent it back to you, such that you're paying the same for rent as you would for your mortgage, but you lose any equity in your house or the ability to sell it to someone else or pass it on to your children, I've meaningfully deprived you of property. Likewise, if you write a book, the value of that book to you is at least partially commercial, not merely in your ability to possess a copy of it.

But in the case of copyright, that extra commercial value depends on us already accepting some copyright-like notion.

One can only expect to command a copyright-level price for a copy if other people obey a copyright-like law to not make other copies.

But that is just going in circles. One cannot justify something based on itself.

Of course there's limited commercial value in holding intellectual property without legal protection, because there's limited commercial value in holding any type of property without legal protection. But that's completely beside the point of the natural law argument.

For what it's worth, I don't actually agree with this argument; I was just pointing out that it's possible to use natural law to argue in favor of intellectual property rights.

If you wrote the book in order to obtain an exogenous financial return, then your creation of the book was a capital investment. Capital investments are speculative by nature, and inherently entail risk, which is the investor's to bear.

Using statute law to impose restrictions and obligations on others in order to protect some imagined entitlement to a positive return amounts to externalizing your risk and forcing others to bear it for you.

You're completely entitled to enjoy the fruits of your labor after applying your energies to create the book, those fruits being the book itself and the utility that owning it provides to you, which you literally cannot be deprived of due to the non-rival intangible nature of the product (considering that 'book' refers to the conceptual content rather than its physical encoding).

The financial return that you obtain by selling your book to others, however, is entirely dependent on their willingness to pay you, which they have no obligation to do in any case, and for which it can't be said that you have any inherent right.

> Using statute law to impose restrictions and obligations on others in order to protect some imagined entitlement to a positive return amounts to externalizing your risk and forcing others to bear it for you.

Copyright is no such thing; most copyrighted works don't have a positive financial return. The only "entitlement" being asserted is literally the right to copy: if I create a book, which is the fruit of my intellectual labor, I then have the right to exchange or extend or license the right to copy that book on whatever commercial, ideological, or personal terms are mutually agreeable to others, and to copy my book without such an agreement is to violate that right.

Again, I'm not saying this is my argument or my personal opinion about copyright. My approach to these issues is more pragmatic and realpolitik and less natural law. I am saying that there is a credible natural law argument to copyright.

Your argument--that an author still has the right to possess and enjoy the book that he has written--is insufficient as a response, since nearly all property rights extend beyond mere possession and enjoyment. That was the point of the house example. If I make a capital investment in building a house in hopes of selling it, and the state seizes my title without compensation but offers to let me live in the house rent-free in perpetuity, John Locke and most proponents of the natural law theory would be very displeased about the situation. On the other hand, if I make a capital investment in building a house in hopes of selling it and I end up losing hundreds of thousands of dollars because it is the year 2010 and the housing bubble burst in the middle of construction, John Locke and most proponents of the natural law theory can only shake their heads and tell me I'm screwed.

> The only "entitlement" being asserted is literally the right to copy: if I create a book, which is the fruit of my intellectual labor, I then have the right to exchange or extend or license the right to copy that book on whatever commercial, ideological, or personal terms are mutually agreeable to others, and to copy my book without such an agreement is to violate that right.

And how does the right to control the downstream copying of the work emanate from the right to enjoy the fruits of your own labor?

The point I'm making is that the direct product of your work is the book itself and nothing more; the right to enjoy that product literally cannot be taken away from you. Other people's copying activities do nothing to diminish your ability to enjoy the direct utility value of the book itself - copying can only diminish the potential return available to you from selling your book to others, but you never had a positive right to a market return in the first place.

The argument you're making requires that there's already some legal mechanism by which you can restrain others from copying your work. Your reasoning is circular.

> And how does the right to control the downstream copying of the work emanate from the right to enjoy the fruits of your own labor?

Because the fruits of my (intellectual) labor are the (intellectual) property of the book itself--the unique arrangement of words and images and so forth. Since I created that arrangement, since that arrangement is the fruit of my labor, by natural law I have property rights to it.

Keep in mind, I'm only arguing that such an argument could credibly be made. I'm not committing to the idea that it works out in the long run--part of the problem with the natural law approach is that you get caught in all kinds of logical ruts without any concern for what works, and frankly there's a lot about copyright that doesn't work.

> The point I'm making is that the direct product of your work is the book itself and nothing more; the right to enjoy that product literally cannot be taken away from you.

Property rights extend beyond private enjoyment. Asked and answered.

> Other people's copying activities do nothing to diminish your ability to enjoy the direct utility value of the book itself - copying can only diminish the potential return available to you from selling your book to others, but you never had a positive right to a market return in the first place.

I never said there was a "positive right to a market return"; that was the entire point of the house example. Asked and answered.

> The argument you're making requires that there's already some legal mechanism by which you can restrain others from copying your work.

All property rights require some legal mechanism to be enforceable. Without deeds and titles I couldn't even own my house. Asked and answered. You're just repeating yourself without understanding any of my points.

> Because the fruits of my (intellectual) labor are the (intellectual) property of the book itself--the unique arrangement of words and images and so forth. Since I created that arrangement, since that arrangement is the fruit of my labor, by natural law I have property rights to it.

And since it's quite literally impossible for you to be deprived of that particular arrangement of words, images, etc., it's physically impossible for your right to be violated.

But you're not claiming just that limited property right; you're saying that you ought to be entitled to restrict others from independently creating their own replica of that arrangement of words, images, etc. which goes far beyond the scope of property rights.

> Property rights extend beyond private enjoyment. Asked and answered.

Into what other areas, then? I'm construing 'private enjoyment' here as the ability to direct the disposition of the associated property without restraint; but how does this extend to directing the disposition of other people's replicas of your property? How does it apply to inherently intangible and non-rival goods?

> I never said there was a "positive right to a market return"; that was the entire point of the house example.

The house example was a non-sequitur. In your example, the state seized your house from you and rented it back to you; they took something that was physically owned by you, and imposed their own constraints on its use and disposition. This is a clear violation of your rights. Again, I'm not seeing how it at all compares to other people independently creating a replica of something you own without imposing any constraints on you.

The only effect third-party copying can have on you is the alteration of external market conditions, potentially reducing the financial return you can obtain from selling copies of the work yourself; but again, you never had any right to guaranteed financial returns, so no right of yours is actually being violated here.

> All property rights require some legal mechanism to be enforceable.

Absolutely false. Physical property is inherently tangible and rival, meaning that only a finite number of individuals can control its disposition at any one time; it's therefore impossible for physical property to exist without someone establishing decisive control over it (or it being abandoned, in which case you might say it's not 'property' at all).

Now, people may seek to embody the process by which people establish decisive control over physical property in some sort of deliberative or judicial context, in order to reduce the possibility of disruption of their social groups arising from property disputes, but it would be inaccurate to suggest that without such a system, the concept of property would simply not exist.

> Without deeds and titles I couldn't even own my house.

No. Deeds and titles are post-hoc formalizations that recognize property rights; they aren't the primordial source of property rights.

Simply put, natural law doesn't presuppose that only physical objects can be property. That's a separate premise you're trying to sneak in. The act of writing a book creates an information/intellectual good, not just a physical artifact.

Look, I'm tired of repeating myself, and you're either not understanding my argument or too tendentious to even try. I don't even believe in natural law, and I think it's possible to use natural law to argue either side of the copyright dispute. If you want to obsessively argue that the natural law justification for copyright is wrong from a natural law standpoint, I honestly don't give a damn. My point is that such an argument can be made, and the fact that we are repeating ourselves to each other only proves my point.

If you want to discuss this further, my email address is in my profile.

Scarcity (smells on the moon) or lack thereof doesn't alter the principle of value, it varies the scale of value.

But it does alter the principle of price. Air is one of the most valuable things on the planet (you would live only 3 or so minutes without it), but it's free, because it's not scarce.

But I think you can take a 'natural law' perspective to make a reasonable case for distinguishing copyrights/patents/trademarks from the traditional notion of property. I attempted that argument in an old HN thread[1], based on the distinction between conventions that arise 'naturally' from an emergent social context, such as traditional physical property, and those that require top-down design in the form of legislative action. I think one could regard physical property as belonging to the former category and IP as belonging to the second.

[1]: http://news.ycombinator.com/item?id=2284636

PG seems to be advocating a pragmatic approach, based on the difficulty of enforcement. Goods can be excludable or non-excludable. Excludable goods are anything that can be effectively locked down (like most physical goods, or movie tickets). Non-excludable goods can't (like air, fish in the sea, and IP). You can make a non-excludable good excludable by creating laws (like Carbon Taxes or IP laws), but it's not always practical.

But he kind of misses the other half - rivalry.

Goods can also be rivalrous or non-rivalrous. Ideas are non-rivalrous as you don't lose anything (except a competitive advantage) if other people also have it. In fact, IP may be the opposite to rivalrous (which is a rare enough thing to not have a name, though I like the name "network goods"), because it's worth more if everyone has it. If more people can speak a language, it's more useful to everyone. The Lord of the Rings is more interesting if you can talk to your friends about it.

While there's a good reason to try to make common goods (rivalrous but non-excludable) goods more excludable (by introducing laws which prevent over-exploitation), it's perverse to make non-rivalrous excludable. You don't tax breathing if there's plenty of air.

The main reason you want to make a public (non-rivalrous non-excludable) good more excludable is to incentize its creation (another reason might be because it's judged to be a "de-merit" (bad) good - such as a porn or a method of manufacturing weapons). But since IP is an input to creating IP, there's very good reasons why you want to make copyright and patents expire in a short time - bringing down the cost of creating new IP may outweigh the lost incentive. Also, the anti-rivalrous nature of IP may even encourage people to make more, simply because it's so useful have more people using it - Linus got his own private kernel debugged and extended at a lower cost by sharing it.

One thing that strikes me as unnatural about copyright is how difficult it would be to enforce effectively. With a traditional crime like robbery, the victim suffers a direct loss. The victim or a relative can report the event to the authorities. With copyright, the victim suffers no damage. Most of the time, the victim of infringement doesn't even know that the event occurred. To enforce copyright effectively, all private communications would have to be monitored at all times. After all, any data transfer between two people is a potential violation of the copyright of a third party. Even private chatter inside your home would have to be recorded and analysed. Otherwise, you'd be allowing kids to sing "Happy Birthday" without a license.

Would you then say that identity constitutes intellectual property? After all, identity “theft” (really infringement) can also occur without the victim’s knowledge, and without perceptible loss. Does that make such crimes less serious? Do they not still undermine something of value?

Unfortunately, traditional identity 'theft' is automatically noticeable when someone apply for a loan / get's a credit report / receives a bill for services rendered to someone else. What your describing is closer to someone using your hair style / an Elvis impersonator walking around and generally those on not considered a crime. Your credit score is a finite resource your haircut is not.

Identity theft is only as bad as the fraud that was performed through it. If the act causes a measurable loss to the victim (e.g. credit card fraud), the victim is going to find out about it one way or another. No need for surveillance. However, if you wanted to effectively forbid anyone from impersonating anyone else even when no harm is done, you would definitely need a surveillance society.

Re edit #2, that exact reasoning was applied by Lord Mansfield in the famous 1772 ruling in Somersett's case[2] that slavery was never legal under English common law:

"The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it's so odious, that nothing can be suffered to support it, but positive law."

[2]: http://en.wikipedia.org/wiki/Somersett%27s_Case

It also made me think about post-scarcity economics. http://en.m.wikipedia.org/wiki/Post_scarcity

We are a looooonng way from post-scarcity. In the same way that home printing didn't kill books.

I'd say it varies widely based on the resource in question. Open-source software and wiki data have a nearly perfect lack of scarcity; bandwidth and server disk space are just slightly scarce; other resources like oil (or the ultimate scarcity, human time) follow conventional rules of economics.

Post-scarcity has already arrived for every resource that has a marginal cost of production equal to zero. That includes every digital product.

That's not to say we're living in the age of post-scarcity. Most of our resources are still limited, and you're right that non-digital resources are likely to retain scarcity for a very long time. Furthermore, post-scarcity will never arrive for inherently limited resources, such as time.

But PG's essay addresses industries selling digital products, and within that realm, post-scarcity has indeed arrived.

> marginal cost of production equal to zero

I think it would be more correct to write "reproduction" or "distribution", because it costs a lot to produce a movie or a book or a big, complex piece of software.

Marginal cost does not include initial investment. https://en.wikipedia.org/wiki/Marginal_cost

It seems like you're miscommunicating over where to delineate the product. You are right that the marginal cost of the Nth copy of a particular film is about zero. The marginal cost of making the Nth film is still decidedly nonzero.

Right and in any event it's ridiculous to talk about a "post scarcity" world when there is oodles of scarcity surrounding the creation of information goods like movies.

That's exactly what Marginal cost is, the change in total cost to produce one more copy of the same product.

> Post-scarcity has already arrived for every resource that has a marginal cost of production equal to zero. That includes every digital product.

I must be doing it wrong because I don't know how to copy bits for free, let alone distribute them for free. I'm in good company - neither Amazon nor Apple knows how to do those things for free either. (The fact that their current costs may be dominated by billing doesn't imply that billing is their only cost.)

Sure, if the cost of infrastructure is taken to be a result of the requirement to replicate data. But given an infrastructure that is maintained irrespective of its use for data replication, replication is free. The former case may describe Amazon and Apple, but the later case describes pirates.

Using that infrastructure has incremental costs. Plus, building it to accomodate data replication in addition to other things costs more than just building it to accommodate those other things.

Amazon and Apple aren't in the business of distributing digital goods with low marginal cost. They are in the business of distributing digital goods with the highest marginal price possible, so they have little incentive to reduce their marginal costs as much as possible. (Even so, their profit margins are very high.)

When you stop trying to impose artificial scarcity and simply try to distribute with the lowest possible marginal cost (things like Project Gutenberg or Bittorrent), you find that even if the marginal cost is not exactly zero, it is close enough that the marginal cost does not affect the pricing across any real-world range of quantities. Thus, the traditional supply/demand model no longer applies.

> They are in the business of distributing digital goods with the highest marginal price possible, so they have little incentive to reduce their marginal costs as much as possible.

Oh really? You think that Apple and Amazon don't care about their bandwidth charges? That will be news to the folks from whom they buy bandwidth. You also think that they don't care about the cost of the servers to send that content out?

> you find that even if the marginal cost is not exactly zero, it is close enough that the marginal cost does not affect the pricing across any real-world range of quantities.

There's your problem - you think that when the cost is minimal, supply/demand doesn't apply.

Your "economics" is several decades out of date. Lots of things aren't priced by cost, but by value. Supply/demand works just fine for them.

> When you stop trying to impose artificial scarcity and simply try to distribute with the lowest possible marginal cost (things like Project Gutenberg or Bittorrent)

Ah, you think that bittorrent is cost-efficient. It isn't. It's a way to spread infrastructure costs across a lot of people.

In other words, you're confusing cost and price again.

"You think that Apple and Amazon don't care about their bandwidth charges?"

I really didn't say that, and you know it.

Apple and Amazon don't want to have a very high marginal cost, but they really don't mind small costs like credit card transaction fees. They don't need to eliminate those costs in order to be profitable. Minimizing their marginal costs is not their top priority.

>>You think that Apple and Amazon don't care about their bandwidth charges?

> I really didn't say that, and you know it.

The person who wrote "They are in the business of distributing digital goods with the highest marginal price possible, so they have little incentive to reduce their marginal costs as much as possible." either thinks that bandwidth costs aren't marginal costs for content distribution or did write that A&A don't care about bandwidth charges.

> They don't need to eliminate those costs in order to be profitable.

So? Lots of companies are profitable without eliminating certain costs, but that doesn't imply that they don't care about those costs.

You seem to think that a company that has "enough" margin doesn't, or shouldn't, care about costs. Some evidence would be nice.

> Minimizing their marginal costs is not their top priority.

Move those goal posts.

Home printing may not have killed books, but ebooks have made a significant cut in normal book purchases.

And you can get more books than you will ever have the time for of project Gutenberg (and some of them can be read on your kindle).

I'm not sure about that. PG leans a lot on whether or not the new law "warps society", which could comport with a natural law view, but is more naturally interpreted as something more empiricist or pragmatic.

---

EDIT (in response to parent's edit #1): Everyone -- utilitarians, legal positivists, conventionalists, etc. -- thinks that the law should adjust to certain realities. Likewise, the parent's definition of "rules that humans...would voluntarily adopt" is orthogonal to questions about the source and authority of the law.

I am very sympathetic to natural law but PG's piece doesn't really strike me as falling one way or the other on this issue.

See also this comment and PG's response: http://news.ycombinator.com/item?id=3694703 -- nothing to do with scarcity or technology, there.