What Makesa Thing Property

Why are some things property, and others not? (If you're looking for the What-makes-a-thing Property, you need to go somewhere else.)

Rather than risk mis-stating other people's theories, I am going to present only the one that I actually believe, in the following. I do not claim that it is really original; I might be borrowing from such people as John Locke. (However, sometimes I mis-state the theories I believe, though I hope not!)

Property, legally, is not really an aspect of a thing at all; it is the right of exclusive use over a thing. A "right", in turn, is best seen against the background of its opposite - permission. If you own a pencil, you do not need to ask anyone's permission in order to use that pencil. In order for another person to use your pencil, he would need your permission.

(The "right to use the thing," like any right, has to be defined in such a way that the right does not infringe the rights of anyone else. Just because you own a pencil doesn't mean you can stab people with it. Just because you own land doesn't mean you can burn stuff on it to the point that you smoke out the neighbors. However, that doesn't mean the right comes with responsibilities - only boundaries, beyond which you have no right. See WithPowerComesResponsibility?.)

When a person creates or originates something, or makes it available for the first time to human use, it ought to become his property. This is a theory that has never been practiced, but ought to be. The implications of it are staggering:

If you were the first person to live on Mars, you would own the planet, because you would be the first person to make it available to human use, and because the effort required in order to get there is probably more than the planet is worth. Though it seems staggering to award ownership of a whole other planet to "just one person", think again: living on Mars is so hard that any person would need a lot of help, and those who helped, knowing that ownership would be awarded, would probably be able to get real estate in return for helping, if they bargained shrewdly. This idea is really just an extension of homesteading. [Ronald Pisaturo explored this idea in a screenplay called TheMerchantOfMars?; a studio bought it, and I don't know if it is in production or what. Copies of the screenplay are not available anywhere.]
If you discovered a new type of radio, or a new band of radio, then you would own that bandwidth. But then, maybe all existing bandwidth would be the property of a certain Marconi.
The first person to put an object in orbit would have owned all the "property" in orbit, on the grounds that he had been the first person to make it available to human use. This would mean that the Russians would have owned it. For National Security reasons, that could not have been permitted, but if people in the U.S. and other free countries had known that property ownership might be awarded, they would have been racing toward it much quicker.
I would own this Wiki page. (Well, WardCunningham might have a prior claim. I created the page, but he created the Wiki.)

A person can acquire property through trade or by performing services. A person can be given property, e.g., by his parents.

The sun is not currently anyone's property, but if anyone interfered with the Sun, it would devalue the land of all land-owners, and therefore infringe their rights in just the same way that smoking up the Earth's atmosphere would - or in the same way that a tall skyscraper might infringe the rights of people on the ground by putting them in almost permanent shadow. You could argue that anybody who owns land owns a "share" of the Sun. This only goes to show that some people - and some legal systems - take certain kinds of property for granted.

Nobody actually believes that 'the spoils go to the fastest' is a valid or sound argument for a just system of allocation. Not even JohnLocke. Locke argued only that farmers could take out land from the global pool of unowned land if and only if they did not reduce the value (real and potential) of the remaining land. Locke thought this justified enclosures of common land, but from our perspective it is clear that it forbids the enclosure of any land. The value of Mars is not zero and there is no valid mechanism by which the unowned Mars could legitimately become privately owned. The only way to do so would be for the owner to compensate every other member of humanity for their own equally legitimate claims to Mars. And this compensation would have to be paid in perpetuity to account for future generations being born. This is the process by which one justifies land and natural resource taxes, which Georgist Libertarians endorse completely.

There are two flaws in the argument. The first is that the remuneration to 'people who helped' is decided by what the helper demands. If Alice and Bob help you equally but you manage to snow Bob into believing he should have less than Alice, does that make it right? The second flaw becomes obvious only after correcting for the first flaw. The set of people who helped includes almost the entirety of humanity. It's just that their claims were conveniently forgotten.

The above arguments against interference with the sun assume that there is any kind of right to land. Instead of making a bizarre case based on property rights, it is simpler and more powerful to claim that interference with the sun violates all human rights. Human rights have implications for property rights as well. There is a human right to personal property (toothbrushes, books, computer accounts, et cetera) and this is sufficient to account for all that is universally recognized as legitimate property. The notion that the first human to make use of fire has an exclusive and perpetual claim to the use of fire is obviously absurd and extremely destructive. RichardStallman makes use of those facts to argue for FreeSoftware.

As to the ownership of Mars: it takes work to open up a new piece of property for human use. This is especially clear in the case of Mars, where the amount of effort required to make it available is probably greater than the cash value of the planet. Yes, it's true that if Mars were put up for auction today, that it would bring in a few million bucks, maybe a few billion - but why not make it a condition of the sale that the person who buys it has to actually make some use of it? Why not make it so that, instead of paying cash to the government, the would-be owner pays directly into the economy in order to get rockets, life-support systems, and the like manufactured? The fact that Mars will have been made possessable at all is sufficient "compensation to the rest of humanity" - since the property is useless (and worthless) if that labor goes unperformed. Why do you deserve to be compensated if someone else spends billions of dollars to develop a space program, build rocket ships, travel, and build a house on Mars?

[Insult retracted by its author due to insufficient evidence. AnneShirleyApology.]

As to employment, employment is a trade, and I make the assumption that people do (and ought) not have to trade except upon terms that are mutually agreed to. No one can make unrefusable demands of anyone else. If Alice and Bob work for Carol, and Bob ever finds out, or even suspects, that Carol is ripping him off, then he has the right to cut off any aid he is giving until the situation is rectified. He can point out that his services are his to give, and use that fact to negotiate better terms. He can also tell Alice and Dave why he thinks he is being ripped off. If they agree with him, a strike could result, even without a union. If Carol refuses to negotiate, then Carol will have to go without Bob's services - taking the risk that Bob's services are irreplaceable. Of course, if somebody under-bids Bob, then that is part of the risk Bob takes.

The idea that a person should have to pay royalties for fire is a StrawMan; I do not hold that the person who discovered fire has the perpetual right to charge for its use. A dead person cannot own property, and if people could pass down the ownership of ideas without limit, then the descendants would receive royalties on old ideas - royalties that they had not worked for. It is the principle of rewarding people for their work that causes patents and copyrights to exist - and to expire. The only reason we don't have them expire at the moment of death is that, while the exact moment of a person's death is unpredictable, people need to know how long they can expect a piece of property to last. I might want to sell the rights outright - rather than mess with licensing, let someone else do it. But they need to know how long they can expect their piece of property to last, in order to estimate its value.

[This is explicitly NOT true for copyrights - they START expiring with the author's death, unless owned by a corporation via work for hire.]

The fundamental example RichardStallman gives is that, with a sandwich or a chair, ownership is justified, because only one person can really make use of the object, but intellectual property can be copied, and the person who copies it is not taking away the original. So, he says, if copying does not preclude ownership, ownership should not preclude copying.

Except, suppose I decide to make a chair the like of which has never been seen before by man. I decide to put gold-leaf on the back and engrave it by hand and set lapiz lazuli in the arms. The materials, shall we say, are readily available due to replicators, but I nevertheless spend twelve years determining exactly what the thing should look like. The work is painstaking. Finally one day it is done. Then RichardStallman comes along with his ReplicatorTechnology and copies my chair in 0.0126 milliseconds, thereby getting all the results without having to do any of the work. "Bwa ha ha!" he says, and runs away...

It is only fair that those who share in the results share in the work. But it is also fair that the person who takes the initiative and does the work gets paid according to its value, not its price. Copyright makes itpossible for a person to create an idea, set a license price, and see how many licensees he gets. If his idea is valuable enough that he can demand a high license price, then he deserves every penny he makes. If no one pays for his licenses, then, well, the idea must not have been worth licensing.

Copyright makes it possible for people to specialize in the creation of ideas, rather than having to work eight hours a day in mere physical labor, and come up with ideas only on the side - ideas which wouldn't be worth any money, anyway.

The whole information age is based on the realization that ideas can make money. Actually, so was the industrial revolution.

What makes a thing property is the fact that someone has to work for it. And the person who does that work is the person who is entitled to the property. -- EdwardKiser

Admirable goals but poor execution. How do you account for different natural endowments and the existence of necessities? If the race belongs to the fastest then you have a priori dictated that future generations do not matter by virtue of not yet having entered the race. Do you propose that people should be condemned for the sins of their fathers? Should people be threatened with dehydration because someone has gone to the effort of bottling all the fresh water on the planet? Two centuries ago, the idea of settling all the land in the world was unthinkable. And look where we are now because of it, a few billionaires owning or controlling 99% of the land on the planet. So now you want to apply principles of fair exchange to a situation that is inherently unfair? What exactly is fair in the dictate "work for me or starve to death"? That's the situation that Bob finds himself in. Of course he can "cut off any aid until the situation is rectified" but if he actually tries to do this in practice then he starves to death. What position do the realities of power and necessity have in your philosophy?

Btw, it is fallacious that natural resources are useless if the first person to develop them does not do so. If the first person does not do so then the second will. Or the third, or the fourth, and so on. There is no shortage of people to develop natural resources. What there is is a shortage of natural resources to be developed. If natural resources were sold on an auction block today, undeveloped, then they would raise a hefty price. The natural rent (what it would fetch on the hypothetical auction block) for a nugget of gold lying on the ground is its market value minus the cost of picking it up. The natural rent on oil in the ground is its market value minus the cost of drilling it. If the situation were as you paint it, a buyer's market, then the natural rent would be near zero. But the situation is very different from how you describe it and the natural rent is very high. 7 trillion USD a year for the USA alone is one estimate. Enough to cut a check of 30,000 for every man, woman and child in the USA. The opportunity to develop natural resources has intrinsic value. This opportunity is something the developer must negotiate for with the rest of humanity, or must steal from them. The fastest-takes-all argument just advocates for wholesale theft!

Your assertion that Mars would bring in a few million dollars is incorrect. Its location value now may be near zero but you seem to forget the fact that such rents are paid in perpetuity. Mars can never, ever be sold outright. If it ever became possible for people to go to Mars cheaply then its location value alone would be worth trillions of dollars per year. Its mineral deposits would require yet more money to buy.

Egalitarianism is a fundamental moral axiom which nearly every human being accepts, or rejects only because of extremely suspicious and self-serving reasons. By rejecting egalitarianism, you have destroyed any possible conception of human justice. It is not possible for your distribution of goods to be fair or just without your basing it on egalitarianism at some point. (Yes, even the extreme right-wingers do that at some point.)

As for copyright being supposed to make division of labour possible, this is quite different from what it actually does.

Why can't loans go unpaid at the debtor's death? If dead people do not own anything then why is it that they can owe things? The bank is taking a risk in giving the loan. Why can't this be one of the risks involved? It is very inconsistent to argue on one hand that investors deserve interest rent because they are incurring a risk and on the other hand seek to minimize that risk as much as possible by passing it onto the public. Further, the argument you accuse of being a straw man is nothing of the kind. It is only creating an equivalence between the acquisition of land and the acquisition of ideas. If land can be privately owned in perpetuity and inherited by descendents without limit or any compensation to the people deprived of its use then why can ideas not be so inherited?

[I'll not respond to this; I've said what I want to say for today. -- EdwardKiser]

If any of us in the UnitedStates are to believe that we have property rights, wouldn't we have to believe that it's valid to take property away from others, by use of force (in at least some circumstances)?

Otherwise, shouldn't the native Americans, and their descendants, own all of it? -- JeffGrigg

Some natives were willing to share their land when Europeans arrived; that land would still be owned by the descendants of Europeans today. Most of the land in this country was not in use at all when Europeans arrived; they would be the first to use it and thus to own it, and it would still be in the hands of their descendants today. Sometimes Europeans took native land in retaliation for natives attacking Europeans; if that retaliation were justified, then the land would rightfully remain in the hands of European descendants. Some natives died of European disease (not the fault of the Europeans, who didn't even have germ theory at the time), and so was unowned when the Europeans got to it; the dead cannot own property, so that property would still be in the hands of descendants of Europeans. Europeans also committed crimes while here, and among those, they seized land they shouldn't have. However, the descendants of those people might not now have any way of knowing whether the land was seized criminally - there was much confusion about who attacked first, in any case. The value added to the land is theirs, since they worked to add it. It is not fair for these people to have to pay for the crimes of their dead ancestors. It is also not really possible to trace back history and determine exactly what distribution of land would have happened if things had gone other than they did. We cannot change the past; we can only hope to make sure atrocities don't happen in the future. With that - since the original perpetrators and victims are all dead - we have to be content.

[This calls to mind P.J. O'Rourke's line: "The Indians have a right to live anywhere in Ohio they want, but oops - we killed them all."]

As far as natives and land ownership in North America, the cases vary and are often more complex than people think. Take British Columbia as an example. Through the Royal Proclamation of 1763, the King essentially agreed that the natives owned it, and that the natives could sell it to the settlers, but that the settlers could not simply take it from them. Unfortunately, that is just what happened, leading to some severe legal problems today. It's quite possible now that, for want of a handful of beads a couple of hundred years ago, the vast majority (if not all) of British Columbia is not owned by most of those who live on it, according to their own laws.

No, actually we don't. But it makes a nice speech for a swindler or any other criminal. "Honest officer, you can't tell that I killed the McCoys? but now that I have all their land, now we must be content. Let sleeping dogs lie and all that." The natives who were willing to share land did so under two important preconceptions. That land would not be enclosed, and that it was impossible for the colonists to use all land. In fact, the natives didn't even believe that land could be privately owned. At best, it's a giant swindle. At worst, this invalidates your philosophy.

Further, knowing germ theory is irrelevant to the practical use of biological warfare. There is at least one recorded instance of deliberate biological warfare using Smallpox infected blankets. Using the blankets was suggested by General Amherst of the British, given to a native delegation (from the forces led by Pontiac) who were told the boxes contained medicine and should not be opened until they returned home (1760s).

What makes a thing property is the fact that someone has to work for it.

Under this theory, most software currently sold results from misappropriation; under current copyright laws, software created by salaried employees is copyrighted property of their employer, not themselves.

Oh, wait; or is the theory that it's OK for something to be the property of a given person, as long as someone - even if it's someone else - had to work for that thing to come about?

Ummm, if your employer pays you to write software for him, and you agree to it, then you lose the software, because you agreed to give it up in exchange for the salary. If you think you are being ripped off, then quit and become self employed.

See LawrenceLessig, Code and Other LawsOfCyberspace for an excellent discussion of why property law exists and how that maps onto "IntellectualProperty".

"Property, legally, is not really an aspect of a thing at all; it is the right of exclusive use over a thing."

But, let's carry it backward. If someone had the right to use your arm, for instance, you could not be said to be free. Your arm is an aspect of you by right. In much the same way, if you use that arm to write a Windows shell extension, in a deep sense, that code is an aspect of you. You have poured your soul into each arcane nook and cranny.

This isn't a philosophy as much as an attempt to imagine a common root to the several definitions of property in a world were shell extensions where an early part of discourse.

So if an engineer designed and built an artificial heart, pouring his soul into each arcane nook and cranny, and the thing was implanted into someone, then the artificial heart should still be the property of the engineer? Or what if the engineer was a Klannsman and the only people on the planet who needed artificial hearts were black people, would it still be rightfully the property of the engineer?

In the first case - the implanted heart is owned by the patient - because s/he would have paid for it to be implanted, or the government would have forced transfer of ownership to the recipient. In the second case, if an artificial heart was somehow bought by a black person, they would own it, regardless of the inventor's wishes - once sold, the property rights follow the object. Even if you agreed that people could be property, they would still be owned by their buyer, who could sell them to someone else, transferring the property rights at that point.

In the hypothetical, the inventor wants all potential clients to die, so he wouldn't sell any units - just patent it and make sure nobody could ever discover something similar. It's pretty clear why his personal choice can't be allowed to dictate the matter. "He might slip up" is a pretty lame basis for rights.

See also HowPossessionsDifferFromProperty and HowPowerAndFreedomDiffer?