pollux.codes

intellectual-property.md (9183B)

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+++ title = 'Creative Commons and Intellectual Property' date = 2025-03-17T21:22:16-05:00 blogtags = ['philosophy', 'intellectual property', 'libertarianism'] +++

Previously, the content on my site has been licensed under the Creative Commons CC-BY-NC-SA 4.0 license, which permits redistribution as long as attribution is given, it isn't for commercial purposes, and any modifications are licensed under the same terms. At first, I thought this was a good license for my work, but after thinking about it more, trying to reconcile my gut instincts with my broader views about intellectual property, I realized that the two were in conflict and I needed to change the licenses of my work to reconcile the two.

From now on, all work on this website will be licensed under the more permissive CC-BY-SA 4.0 license, and all past work will be relicensed under these terms as well (I won't keep the old terms, since they are contained in their entirety within the new terms). This post will outline my opinions on intellectual property, with a couple arguments to justify my position, as well as my rationale for choosing the license that I did.

Why Intellectual "Property" Is Illegitimate

I will provide three reasons why I believe that intellectual property rights are illegitimate. The first two are more conceptual, principled arguments, and the last is based on considering how the manifestation of these rights in our society is hurting many people.

Intellectual "Property" Isn't Real Property

In order to understand why intellectual property is not real property, we need to understand what property itself is and what conditions are required for its existence.

I will be drawing much from the ideas of Hans H. Hoppe and the broader conservative wing of libertarian thought.^{1 2}

Property can broadly be defined as that which an agent has the right to exclusive control over the use (or lack thereof) of a scarce resource. For example, because I own the laptop I am writing this on (it is my property), I have the right to tell others that they can't use it, or to tell them that they may but only in a particular way. If they disregard my wishes, they are in the wrong for violating my property rights.

Notice, however, the mention of scarcity in this definition. A scarce resource is one that, by it's nature or lack of abundance, requires that its use by one agent cause another agent to loose their ability to use it, this encompasses many resources, but not all. A good example of a resource that is not scarce is the air we breathe. There is so much of it that I can use as much of it as I want without impacting anyone's ability to use it. Even if I start a hundred bonfires to consume as much oxygen as I can manage, you will still be able to use it just as well. Since the air is not considered scarce, we also do not consider claims of ownership over it legitimate (imagine if your neighbor sued you for using the air from his property blown over to yours by the wind). Conversely, consider a scenario in the future where we are both colonists on Mars, which does not have an abundance of breathable oxygen. In this scenario, we would each likely have our own reserves of oxygen to breathe, and would certainly, and reasonably so, claim ownership oven our reserves of air. This highlights why resources must necessarily be scarce in order for people to legitimately claim ownership of them: Only scarce resources are able to create the conflict requisite for a moral framework, namely property rights, to be necessary.

Intellectual "Property" Rights Violate Real Property Rights

Having argued that intellectual property ought to be striped of its false status of property, I would now like to argue that upholding ownership of intellectual property, rather than simply not being a right, also violates the property rights of others.

Libertarian thinker Stephan Kinsella presents a good argument demonstrating how enforcing intellectual property rights violates others property rights, which I will paraphrase here.[^kinsella2008]

By enforcing your intellectual property rights of an idea, by means of a patent, for example, you are not protecting your resources, per se, but rather a particular pattern that resources can be arranged in, including those that you do not own.³ If we consider our above definition of property rights, we can see that you exercising your intellectual property rights violates my (and everyone else's) property rights, since it gives you control over what I am allowed to do with my property.

Intellectual "Property" Rights Are Easily Abused

A more consequentialist argument against the concept of intellectual property comes from considering the negative consequences of copyright and patent laws, which serve as the concept's manifestation in our modern world. It is nothing new to point out that these laws are abused, but I would like to highlight that this is often, incorrectly, blamed on capitalism, or more specifically, real property rights. I will explain why those who do so are mistaken, and in fact these issues stem from our society's departure from the ideals of the free market.

Insulin is a classic example of patent abuse. Although insulin itself is not patented, that would be ridiculous, the means of producing and administering it are. This makes it extremely difficult for competition to get set up. (There's also the issue with the mandatory red tape, but that is a completely separate issue.) The lack of competition results in the few producers available being able to increase their prices with impunity, and the patients suffer. While those who say that this is the result of "corporate greed," are technically correct, they fail to see the bigger picture, that these prices are the result in the government interfering in the market, and because of this failure, they suggest completely-to-mostly ineffective band-aids that don't really solve the problem, such as price controls, that also bring their own slew of problems.

This issue can also be understood in the context of scarcity. By exercising intellectual property rights, you are taking an idea, which is infinitely replicable, and restricting the ways it can be used, thus introducing scarcity where there is none. Thus rather than being a mechanism to resolve disputes caused by scarcity, which is why typical property rights exist, intellectual property rights instead create scarcity. Given that scarcity is one of the fundamental ills in society, and is the principle fact of life responsible for poverty, starvation, poor medical care, and countless other ailments, we should avoid creating more of it.

How Should We License Our Work?

Suppose that you were convinced by the above, and would like to help erode the legitimacy of the illegitimate intellectual property rights. Suppose as well that you are yourself a creative who writes, composes, paints, or engages in some sort of intellectual pursuit with a creative output. How should you license your work?

CC0 (or MIT No Attribution)

Under the purest interpretation of the illegitimacy of intellectual property, the best way to license our work is the Creative Commons CC0 license (or the roughly equivalent software license: MIT No Attribution), which lets us dedicate our work to the public domain. This constitutes an honest admission that we do not have the right to restrain the way others may use or apply our ideas.

CC-BY-SA (or GPL-v3)

Although the above licenses are fine ways to license work, and I have nothing but the utmost respect for those who use them, I think there is room for improvement. After all, we are granted the ability to restrict the ways our work can be used, why not use that ability to encourage the proliferation of permissive licenses, with the ultimate goal of rendering intellectual property rights irrelevant? If a work is licensed under CC0, then anyone who adapts that work can license it however they want, even under restrictive "All rights reserved" licenses.

Because of this, I consider it to be beneficial to use our "right" to license our work to encourage others use more permissive licenses, with the ultimate result being more works being released under these permissive licenses. This is why I have chosen the CC-BY-SA 4.0, and similar "copyleft" licenses for my work, and encourage you to do the same. (Obviously, with more emphasis being placed on the "SA" part, rather than the "BY" part.) This license requires that any derivative works must be released under the same license, promoting the proliferation of this minimally restrictive license. For code, the equivalent license would be the Gnu GPL-v3.