Saturday, August 14, 2004

Non-Rivalry in Discussion

What sort of anti-social idiot would pick a fight with Glen, a gracious blog-host, brilliant thinker, and ninja debater? Not me! But I might qualify as the sort of scrupulously polite guest who cautiously offers a modestly alternative view of some of the issues that Glen raised in his recent post, The Properties of Property Rights.

Glen there argues against drawing a fundamental distinction between intellectual property (IP) rights and tangible property rights. He explains that IP is limited in duration as a matter of policy because it is non-rivalrous in consumption as a matter of fact. Glen emphasizes, however, that the non-rivalry in consumption of IP does not make it fundamentally different from other types of property. Different types of property have different attributes, he explains, citing as an example the limited duration of rideable wave faces, an asset that I earlier described in terms of property rights. (Here as elsewhere, I take it we use “intellectual property,” to refer only to copyrights and patents. Other types of IP—trademarks, rights of publicity, and trade secrets—are rivalrous in consumption and thus impliedly outside the scope of our discussion.)

To bolster his point that different types of property have different attributes, Glen appears to claim that whereas a surfer who abandons a wave “cannot forbid another surfer from taking over,” the same is “[n]ot true for real estate. “ I have to wonder, though, why we cannot regard the adverse possession doctrine as establishing essentially the same rule for real property that holds true in surfing. Under adverse possession, someone who openly, exclusively, and notoriously occupies land to which they do not own title can thereby, if not ejected by the rightful owner after a term of some years, win rightful title to it. Surfers transfer title to waves in the same fashion, albeit more quickly.

I quibble, though. Different kinds of property certainly do have different attributes. Rideable wave faces don’t last as long as plots of land, even if title to either can pass from one who abandons the property to one who takes possession of it. In further defense of Glen’s argument, I note that he might likewise have observed that different kinds of property have different attributes of mobility. Waves and chattel property move; real property does not.

(OK, ok. More precisely, Earth-bound parcels of real property do not move with regard to each other, even though they move as a whole with respect to the rest of the universe. Sheesh, you sci-fi guys drive me nuts, sometimes.)

So understood, Glen’s argument leaves a crucial question hanging. Granting that different types of property have different attributes, does IP’s non-rivalry in consumption mark it as too different from tangible property to qualify as a natural right? To put the question another, perhaps clearer way, is rivalry in consumption a necessary attribute of a natural property right?

Some will say that the question, in either form, wrongly presupposes that natural rights exist. Some will answer, “No. Patents and copyrights qualify as natural rights.” I reply, “Yes, I think both that tangible property rights qualify as natural rights and that the non-rivalry in consumption of copyrights and patents marks them as too different in kind to merit that same appellation.”

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