In the Atlantic, Megan McArdle offers a long, tilting-at-strawmen defense of (intellectual) property rights. (In what follows, I’m not going to attempt line-by-line rebuttals; McArdle rambled too much for that. I’ve simply directed my ire against the two aspects of the post that stood out the most: the attack on a strawman argument and the patronizing, sneering tone of voice.)
I get the sense that people find it intuitive that many people think property is, at its heart, a system for deciding how to allocate a limited and fixed set of stuff….I’m not sure how we settled on “it’s non-rivalrous” as the reason that file sharing is a) not stealing and b) okay….But [libertarians] haven’t, to me, advanced a theory of property–either moral or economic–to which the property “rivalrous” is really so obviously fundamental that in its absence, we’re no longer dealing with property.
McArdle takes herself to be arguing against the claim that “If non-rivalrousness obtains with respect to a good there should be no property rights with respect to it”. This, as far as I can tell, has never been the basis, of any argument against property rights in anything. It has however, in many, many, different venues been the basis of a claim that suggests that goods that are non-rival in nature require some rejiggering of legal regimes–and intuitions built on long discourses surrounding those regimes–that have been constructed with rivalrousness central to their understanding of property rights. That is all. Anyone that takes on non-rivarlousness in goods as being a sufficient reason for there being no property rights pertaining to those goods is tilting as windmills.
Ironically, McArdle seems to imagine some consensus over the understanding of property rights (she invokes an imaginary “We” again and again that does nothing more than recapitulate some shadowy set of established intuitions that are precisely the ones up for reconfiguration in the modern debate about IP rights), and by throwing out a bunch of hypotheticals (the Barnes and Noble example she constructs is a classic), actually lands up undermining some conventional intuitions that people might have about rival goods instead. In the B&N case, I’d suggest she ends up making a good argument for why property rights should be weaker even in the case of solid, tangible, rival goods like printed books (read the example; it is entirely plausible that someone on reading her example would be tempted to respond, “Well, when you put it that way, maybe it’s better that someone walks out with a book from a store rather than that book being pulped!”). Similarly, for the trespass case; McArdle again lands up making a very good case for why some variants of non-interference squatting should not be a problem for proponents of property rights (read the example; a plausible response might be “Now that you put it that way, I think using that cabin up in the mountains while the owner isn’t there might not be such a bad thing for society after all”). I’m not sure if this was her intention but she certainly succeeds.
McArdle’s article though, for my money, commits an even greater sin than the mere commission of a fallacy. She patronizes:
[I]t occurred to me how many of the analogies seem to have been designed by and for college students. Which is to say, they are reasoning from a pretty simple version of property, appropriate to someone who doesn’t really engage in much commerce.
There is that old sneer–which seems to be almost obligatory for folks who advocate for strong (intellectual) property rights–all over again: You don’t do business; you don’t understand commerce; why participate in this discussion about an issue that bears on culture? Let folks that do “commerce” get to decide how information should be legally manipulated, controlled and regulated. No matter what kind of information it is. (What makes this sneer especially ironic in the context of the particular case is that McArdle jumped to offer her defense in the context of the JSTOR/Schwartz imbroglio, a case that has a great deal to do with the dissemination of a scholarly scientific and cultural archive.)
Update: Changed post title to “Property Rights” rather than “IP rights”