The Law of Intellectual Property : Part 1, Chapter 2, Section 1
(1808 - 1887) ~ Individualist Anarchist and Unitarian Christian Abolitionist : The greatest natural rights thinker of the 19th century was the American lawyer and maverick individualist Lysander Spooner. He responded to the tumultuous events of his era, including the Panic of 1837 and the Civil War, with pamphlets about natural rights, slavery, money, trial by jury and other timely subjects. (From : Jim Powell Bio.)
• "The doctrine that the majority have a right to rule proceeds upon the principle that minorities have no right in the government; for certainly the minority cannot be said to have any rights in a government so long as the majority alone determine what their rights shall be." (From : "Free Political Institutions," by Lysander Spooner.)
• "Again, the doctrine that the minority ought to submit to the will of the majority proceeds, not upon the principle that government is formed by voluntary association and for an agreed purpose on the part of all who contribute to its support, but upon the presumption that all government must be practically a state of war and plunder between opposing parties..." (From : "Free Political Institutions," by Lysander Spooner.)
• "There is no particle of truth in the notion that the majority have a right to rule, or exercise arbitrary power over, the minority simply because the former are more numerous than the latter. Two men have no more natural right to rule one than one has to rule two." (From : "Free Political Institutions," by Lysander Spooner.)
Part 1, Chapter 2, Section 1
The objections that will be urged to the principles of the preceding chapter, are the following.
It will be said there can be no right of property in ideas, for the reason that an idea has no corporeal substance.
This is an ancient argument, but it obviously has no intrinsic weight or soundness; for corporeal substances are not the only things that have value; they are not the only things that contribute to the welfare of man; they are not the only things that can be possessed by one man, and not by another; they are not the only things that can be imparted by one man to another; nor are they the only things that are the products of labor. Indeed, correctly speaking, corporeal substances are never the products, (that is, the creations,) of human labor. Human labor cannot create corporeal substances. It can only change their forms, qualities, adaptations, and values. These forms, qualities, adaptations, and values are all incorporeal things. Hence, as will be more fully shown hereafter, all the products—that is, all the creations—of human labor, are incorporeal.
To deny the right of property in incorporeal things, is equivalent to denying the right of property in labor itself; in the products of labor; and even in those corporeal substances, that are acquired by labor; as will now be shown.
1. To deny the right of property in incorporeal things, is equivalent to denying the right of property in labor, because labor itself is incorporeal. It is simply motion; an action merely of the faculties. It has no corporeal substance. To deny, therefore, that there can be any right of property in incorporeal things, is denying that a man can have any right of property in his labor; and, of course, that he can have any right to demand pay for it, when he labors for another. Yet we all know that labor is a subject of property. A man's labor is his own. It also has value. It is the great dependence of the human race for subsistence. It is of ten thousand thousand kinds. Each of these kinds, too, has its well understood market price; as much so as any corporeal substance whatever. And each of these various kinds of labor is constantly bought and sold as merchandise.
Labor, therefore, being incorporeal, and yet, by universal confession, a subject of property, the principle of the right of property in incorporeal things is established.
2. To deny the right of property in incorporeal things, is equivalent to denying the right of property in the products, (that is, in the creations,) of human labor: for these products, or creations, are all incorporeal. Human labor, as has already been said, cannot create corporeal substances. It can only create, and give to corporeal substances, new forms, qualities, adaptations, and values. These new forms, qualities, adaptations, and values are all incorporeal things. For example—The new forms, and new beauties, which a sculptor, by his labor, creates, and imparts to a block of marble, are not corporeal substances. They are mere qualities, that have been imparted to a corporeal substance. They are qualities, that can neither be weighed nor measured, like corporeal substances. Scales will not weigh them, nor yard sticks measure them, as they will weigh and measure corporeal substances. They can be perceived and estimated only by the mind; in the same manner that the mind perceives and estimates an idea. In short, these new forms and new beauties, which human labor has created, and imparted to the marble, are incorporeal, and not corporeal things. Yet they have value; are the products of labor; are subjects of property; and are constantly bought and sold in the market.
So also it is with all the new forms, qualities, adaptations, and values, which labor creates, and imparts to the materials, of which a house, for example, is composed. These new forms, qualities, adaptations, and values, are all incorporeal. They can neither be weighed, nor measured, as corporeal substances. Yet without them, the corporeal substances, out of which the house is constructed, would have failed to become a house. They, therefore, have value. They are also the products of labor; are subjects of property; and are constantly bought and sold in the market.
The same principle holds good in regard to all corporeal substances whatsoever, to which labor gives new forms, or qualities, adapted to satisfy the wants, gratify the eye, or promote the happiness of man—whether the substances be articles of food, clothing, utensils for labor, books, pictures, or whatever else may minister to the desires of men. The new forms and qualities, given to each and all these corporeal substances, to adapt them to use, are themselves incorporeal. Yet they have value; are the products of labor; and are as much subjects of property, as are the substances themselves. And the destruction or injury of these forms and qualities, by any person not the owner, is as clearly a crime, as is the theft or destruction of the substances themselves. In fact, correctly speaking, it is only the incorporeal forms, qualities, and adaptations of corporeal substances, that can be destroyed. The substances themselves are incapable of destruction. To destroy or injure the incorporeal forms, qualities, and adaptations, that have been given to corporeal substances by labor, destroys or injures the market value of the substances themselves; because it destroys or impairs their utility, for the purposes for which they are desired. How absurd then to say that incorporeal things are not subjects of property.
The examples already given, of labor, the products, or creations of labor, (by which is now meant those forms, qualities, adaptations, and values, imparted by labor to corporeal substances,) would be sufficient to prove that incorporeal things are subjects of property. But, saying nothing as yet of ideas, there are still other kinds of incorporeal things, that are subjects of property. For example. A man's pecuniary credit, or reputation for pecuniary responsibility, has value; is the product of labor; and is a subject of property. Various other kinds of reputation are also subjects of property. A magistrate's reputation for integrity; a soldier's reputation for courage; a woman's reputation for chastity; a physician's reputation for skill; a preacher's reputation for sincerity, &c., &c., are all subjects of property. They have value; and they are the products of labor. Yet they are not corporeal substances.
Health is incorporeal. Strength is incorporeal. So also the senses, or faculties, of sight, hearing, taste, smell, and feeling are incorporeal. A person might lose them all without the loss of any corporeal substance. Yet they are all valuable possessions, and subjects of property. To impair or destroy them, through carelessness or design, is an injury to be compensated by damages, or punished as a crime.
Melody is incorporeal. Yet it has value; is the product of labor; is a subject of property; and a common article of merchandise.
Beauty is incorporeal. Yet it is a subject of property. It is a property, too, that is very highly prized—whether it be beauty of person, or beauty in those animals or inanimate objects, which are subjects of property. And to impair or destroy such beauty, is acknowledged by all to be a wrong, to be compensated in damages,—or a crime, to be visited with penalties.
A ride, and the right or privilege of riding, or of being carried, as, for example, on railroads, in steamboats, and public conveyances of all kinds, are incorporeal things. They cannot be seen by the eye, nor touched by the hand. They can only be perceived by the mind. Yet they have value; are subjects of property; and are constantly bought and sold in the market.
The right of going into a hotel, or a place of public amusement, is not a corporeal substance. It nevertheless has value, and is a subject of property, and is constantly bought and sold.
Liberty is incorporeal. Yet it has value; and if it be not sold, it is because no corporeal substance is sufficiently valuable to be received in exchange for it.
Life itself is incorporeal. Yet it is property; and to take it from its owner is usually reckoned the highest crime that can be committed against him.
Many other kinds of property are incorporeal.
Thus it will be seen that thoughts are by no means the only incorporeal things that have value, and are subjects of property. Civilized society could not exist without recognizing incorporeal things as property.
3: To deny the right of property in incorporeal things, is equivalent to denying the right of property even in corporeal things.
What is the foundation of the right of property in corporeal things? It is not that they are the products, or creations, of human labor; for, as has already been said, human labor never produces—that is, it never creates—corporeal substances. But it is simply this—that human labor has been expended upon them—that is, in taking possession of them. The right of property, therefore, in corporeal things, has its foundation solely in human labor, which is itself incorporeal. Now it is clear that if labor, which is incorporeal, were not itself a subject of property, it could give the laborer no right of property in those corporeal substances, upon which he bestows his labor. A right cannot arise out of no right. It is absurd, therefore, to say that a man has no right of property in his labor, for the reason that labor is incorporeal, and yet to say that that same labor, (which is not his,) can give him a right to a corporeal substance, to which he confessedly has no other right, than that he has expended labor upon it. If labor itself be not a subject of property, it follows, of necessity, that it can give the laborer no right of property in any thing else.
The necessary consequence, therefore, of denying the right of property in incorporeal things, as labor, for example, is to deny the right of property in corporeal things; because the right to the latter is only a result, or consequence, of a right to the former. If, therefore, we deny the right of property in incorporeal things, we must deny all rights of property whatsoever.
The idea, therefore, that incorporeal things cannot be subjects of property, is simply absurd, since it goes necessarily to the denial of all property; and since also it is itself denied by the common sense, the constant practice, and, above all, by the universal necessities, of mankind at large. On the other hand, if we admit a right of property in incorporeal things at all, then ideas are as clearly legitimate subjects of property, as any other incorporeal things that can be named. They are, in their nature, necessarily personal possessions; they have value; they are the products of labor; they are indispensable to the happiness, well-being, and even subsistence of man; they can be possessed by one man, and not by another; they can be imparted by one man to another; yet no one can demand them of another as a right; and, as has before been said and shown, they are continually bought and sold as merchandise.
The doctrine, however, that corporeal substances only could be subjects of property, was a somewhat natural one in the infancy of thought; when men's theories about property were superficial and imperfect, partaking more of the character of instinct, than of reason, and when things visible by the eye, and tangible by the hand, would naturally be regarded, by unreasoning minds, as of a very different character, in respect of susceptibility of ownership, from such incorporeal things as ideas, of which few men had any worth setting a price upon. The distinction, however, between corporeal and incorporeal things, as subjects of property, is one entirely groundless in itself, and entirely unworthy of the advanced reason of the present day; or even of any modern day; although modern days have seen the argument urged.*
Mankind have doubtless never consistently adhered to the theory that only corporeal things could be subjects of property. Probably in the darkest barbarism—certainly since the earliest history of civilization—incorporeal things, of various kinds, have been subjects of purchase and sale. The illiterate have sold their labor, which is incorporeal; and the learned, powerful, and artful, as, for example, the law-givers, magistrates, priests, physicians, astrologers, and necromancers, have sold their ideas. And the nature of men assures us, that there was never a time known among them, when the injury or destruction of various kinds of incorporeal property, as, for example, strength, sight, health, beauty, liberty, and life, was not considered and treated as a wrong to be avenged.
In modern times, with the advance of civilization, incorporeal things in a thousand forms, ideas included, have come to be among the most common articles of traffic; and contracts, based solely upon the ground of property in incorporeal things—as, for example, contracts to pay lawyers, physicians, preachers, teachers, editors, &c., for their ideas—are continually enforced by courts of justice, with the same uniformity as are contracts for corporeal things; while at the same time, the very tribunals, who enforce these contracts—tribunals composed, too, of men, who earn their official salaries only by giving their ideas in exchange for them—deny the principle of property in ideas. Such has been, and still is, the inconsistency of men's opinions on this subject—an inconsistency that strikingly illustrates the immaturity of reason, the low state of legal science, and the imperfection of political and judicial institutions.
One obstacle to the universal acknowledgment of property in ideas, has been this. Mankind freely give away so large a portion of their ideas, and so few of their ideas are of sufficient value to bring anything in the market, (except in the market of common conversation, where men mutually exchange their ideas,) that persons, who have not reasoned on the subject, have naturally fallen into the habit of thinking, that ideas were not subjects of property; and have consequently been slow to admit that, as a matter of sound theory or law, men had a strict right of property in any of their ideas. And yet these same doubters have themselves been, and now are, in the constant practice of buying ideas, in various ways, of magistrates, lawyers, physicians, preachers, teachers, editors, &c., and paying their money for them, without once dreaming that there was any more hardship or injustice in their being necessitated to do so, than in their being necessitated to buy their food or clothing.
Another reason, why the absolute right of property in ideas, has not been earlier, more consistently, and universally acknowledged, has been that, in the infancy of civil society, and even until a comparatively recent date, owing to the general ignorance of letters, and the want of records for that purpose, there has been a nearly or quite insuperable difficulty in maintaining that right in practice, by reason of there being no means of proving one's property in an idea, after the idea itself had gone out among men. But that difficulty is now removed by the invention of records, by which a man may have his idea registered, and his right to it established, before it is disclosed to the public.
But what must settle, absolutely and forever, this question of the right of property in incorporeal things, is this—that the right of property itself is an incorporeality. The right of property is a mere incorporeal right of dominion, or control, over a thing. It is neither tangible by the hand, nor visible by the eye. It is a mere abstraction, existing only in contemplation of the mind. Yet this incorporeal right of dominion or control over a thing, is itself a subject of property—of ownership; one that is continually bought and sold in the market, independently of possession of the thing to which it relates.
To make this point clear to the unprofessional reader. There are two kinds of property, which pertain to every corporeal thing that is owned. One is the right of property, or ownership, in the thing owned—that is, the right of dominion or control over the thing. The other is the possession of the thing owned. These two kinds of property are the only kinds of property, that any man can have in any corporeal thing. Yet these two kinds of property can exist, and often do exist, separately from each other. Thus one man may own a thing—that is, have the right of property in a thing—as a house, for example—and another man have the possession of it. One man has the abstract incorporeal right of dominion, or control, over the house; the other has, for the time being, the actual dominion—that is, the possession—which he holds, either with, or without, the consent of the owner, as the case may be.
Now, any one can see that this incorporeal right of the true owner, is itself a subject of property. It is a thing that may be owned, bought, and sold, independently of the other kind of property, viz.: possession. It often is owned, bought, and sold, independently of possession. For example, a man often buys, pays for, and owns, a house to-day, which he is not to have possession of until next week, next month, or next year. Yet, though out of possession of the house, his incorporeal right of property in it, is itself a legal and bona fide property, of which he is possessed. It is a property, which he himself may sell, if he so choose.
This incorporeal right of property is the property, that is principally regarded by the laws. Possession is comparatively of little importance. It is comparatively of little importance, because if a man own the right of property in a thing, he can then claim the possession, solely by virtue of that right, and the law will give it to him. On the other hand, if a man have possession of a thing, without the right of property in it, the law will compel him to surrender the possession to the one who owns the right of property. Hence, in nearly all controversies, in law, about property, the question is, Who has the right of property? Not, Who has the possession? These facts show that the right of property, in any corporeal thing, is itself a subject of property, of ownership, independently of possession; and is so regarded by the laws. Yet it is but an incorporeality.
This incorporeal right of property is also the property, which is of chief consideration in the minds of men, in all their dealings with each other. It is what one man buys, and the other sells. They care little for possession; because they know that the right will, sooner or later, give them the possession. On the other hand, they know that possession, without the right, will be insecure, and of little value. For these reasons, in all legitimate traffic, the purchaser is careful to know that he buys the right of property—that is, that he buys of one, who really owns the property—has the abstract incorporeal right to it; and not of one who merely has the possession of it. This fact, too, shows that the right of property is itself a subject of property—of ownership—independently of possession of the commodity to which it relates; and is universally so recognized by mankind, in their every day dealings. Yet it is but an incorporeality.
To accumulate evidence on this point. That this right of property is itself a subject of property, and an incorporeality, is proved by the fact, that it is transferred from one man to another, simply by consent—by a mere operation of the mind—without any corporeal delivery of the thing, to which the right attaches. Thus two men, in New York, may exchange their respective rights of property, in two ships, that are, at the time, in the Pacific ocean. And this incorporeal transfer, of the incorporeal right of property, in the ships, enables each purchaser afterwards to claim the possession, dominion, and control of the ship itself, that he has purchased. Here it is clear that the incorporeal right of property, or dominion, is a legal entity, and a subject of property, of ownership; one, which is transferred, from one man to another, by an incorporeal act, a simple operation of the mind, viz.: the act of consent. Manifestly this incorporeal right of property, or dominion, is, of itself, independently of possession of the commodity to which it relates, a subject of property, of ownership.
Again. This incorporeal right of property, being, of itself, a subject of property, it follows that no man can assert that he has a right of property even in a corporeal thing, without, at the same time, asserting, that an incorporeality is a subject of property, of ownership.
To conclude. The right of property being incorporeal, and being itself a subject of property, it demonstrates that the right of property may attach to still other incorporeal things; for it would be plainly absurd to say, that there could be an incorporeal right of property to a corporeal thing, but could be no incorporeal right of property to an incorporeal thing. Clearly an incorporeal right of property could attach to an incorporeal thing—a thing of its own nature—as easily as to a corporeal thing, a thing of a different nature from its own. The attachment of this incorporeal right of property, to a corporeal thing, is not a phenomenon visible by the eye, nor tangible by the hand. It is perceptible only by the mind. And the mind can as easily perceive the same attachment to an incorporeal thing, as to a corporeal one.
It will now be taken for granted, that this point is established, namely, that on principles of natural law, incorporeal things are subjects of property. If that point be established, it is self-evident that ideas are naturally subjects of property; that their incorporeality is no objection whatever to their being owned as property.
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