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>From a historical perspective, why is the notion of intellectual property any less legitimate than the notion of real property? In both cases, we are granting to a private concern the exclusive right to exploit something that used to be in the commons.

The difference is as clear as day. Now matter how much you exploit an intangible good, you cannot deplete it. It's not scarce, so it makes no sense to hand anyone a monopoly over it.

Also, land ownership can be questioned as well. It's most often justified by reciting the Tragedy of the Commons, but private ownership isn't the only solution you could apply to the problem it describes (depletion of a shared resource), but I digress.

> In the case of both real and intellectual "property", there is a resource from which limited value can be extracted. There are a limited number of cows that can graze in a given number of acres, there is a limited amount of money that can be made by selling a particular molecule as a drug, and there is a limited number of tickets that can be sold during opening weekend of a film.

Land has scarcity; not everyone can use it at once. You've argued that the same thing applies to works currently controlled by copyright, but I (and many other people) fundamentally disagree. Movie tickets have scarcity because not everyone fits in the theater at once; just look at the lines outside theaters on opening night of a popular film. However, the film itself has no scarcity; that doesn't represent a moral statement, just a statement of reality.

That might mean that people making films have to find other ways to extract value, but as a culture that falls under "not our problem". For a film people want to see, clearly the existence of the film has value, and people have found ways to make that support the film; just look at things like Kickstarter for one example, which would work just fine without copyright. (They'll probably work far better once they become a necessity; right now they have to compete with the effectively subsidized development of works controlled by copyright.)

Also, the ability to interactively change our culture represents a feature, not a bug. (Among many other things, see https://en.wikipedia.org/wiki/Remix_culture .) We deal with media we find distasteful by giving a collective "ewww" and moving on. That doesn't invalidate the huge value of having a rich public domain. (And in the case of Disney and numerous others, note that most of their movies couldn't exist without a rich public domain for them to have drawn from.)

> So it seems to me that opposition to intellectual property can't come from "legitimacy," unless we also consider ownership of real estate to be illegitimate. That would be a sad state of affairs, because I think the human race would be worse off without the idea of land deeds.

"Understatement" doesn't quite cover the implications of not respecting the exclusivity of property. But no, your premise doesn't hold; no natural scarcity exists for copyright and patents as presumed by the loaded phrase "intellectual property", the way it does for real estate.

Classic sci-fi thought experiment: if someone invented the replicator tomorrow, what else suddenly has no natural scarcity? Real estate would rapidly become the only component of the physical world with scarcity; apart from that, only services would have value.

> Edit: RF spectrum is another example, I suppose -- there's a limited amount of value to extract (only so many channels), and there are conflicting uses that create different kinds of value (which applications to run on which frequencies with which propagation characteristics.) And the policy tradeoffs in spectrum "property" seem to be different again from those in real or intellectual property. For one thing, there's the rapid advance of technology, and the possibility of spread spectrum.

RF spectrum absolutely does have scarcity, albeit somewhat flexible scarcity since we continuously find new ways to pack more into less. I don't think we currently handle spectrum regulation in the most efficient way (auctions don't necessarily seem like the right approach), but RF spectrum does at least have a legitimate claim as a limited resource that needs some kind of special handling. That said, the value of special-purpose RF protocols has gone down significantly, compared to just finding ways to connect devices to the Internet.

My argument is that there is natural scarcity not of copies of a piece of information, but of the value that can be extracted from it. Scarcity is relevant to movie tickets because only so many people want to see a particular movie this Friday night. Let's say that in San Francisco there are 1000 such people. If only 5 movie theaters can show the movie, they might sell 200 tickets each. If 50 movie theaters can show the movie, they're not going to sell 200 tickets each. Collectively they will still sell at most 1000 tickets. They have to divide a scarce resource -- the value of the information to moviegoers on that particular night in SF. Once the information is adequately distributed, no matter how many copies you make, you won't increase that value.

So, instead of tracking the physical copies -- which I think we'd both agree are an irrelevant artifact of an antiquated distribution system -- I think we should talk about the value that is created for humanity when someone comes up with a new piece of information. When I make a movie, I've added a certain amount of value to the world. When I establish that a molecule can safely be used to treat a disease, I've added a certain amount of value to the world. It is hard to find units to measure this value (revenue potential in USD is a distorted one), but it is undoubtedly finite, and different for each movie or drug. None of this changes with your sci-fi replicator.

The question is, should I as the creator of the information be able to capture all that value? Some of that value? None of that value?

If we thought of IP as a natural right, we'd say "all." Copyright would be perpetual and there'd be no fair use. In a post-scarcity world where everyone got food and housing and paint and movie cameras for free, we might say "none" and hope (correctly I think) that people would still create for the pleasure of creation.

Historically in the US we've said "some," nominally because we think it maximizes the rate of production of value for the commons, but in fact because of the natural vulnerability of our legislative system to capture by rent-seeking copyright aggregators. It is like a resonant frequency of democratic capitalism.

It sounds like you've said not that scarcity exists in the supply, but rather than a limited amount of demand exists. That much certainly seems true (consider YouTube's statistics on how many days of video get uploaded per minute). However, I don't see how that leads to the conclusions you suggest; it certainly doesn't have the same effect as scarcity of supply.

> The question is, should I as the creator of the information be able to capture all that value? Some of that value? None of that value?

You have the right to try; you don't have any fundamental right to succeed, but you can certainly try.

I agree with the concept that you create value when you create new information, rather than at some later time. That seems like the perfect time to attempt to extract value, since you can choose not to create the information if you can't get value for it, and you can choose to focus on creating information for which you can derive value.

That model fits nicely with systems like Kickstarter: raise money to create something, then create it. If those become the primary model for funding creative work, they'll almost certainly attract more interest and more funding, which would otherwise go to copyright-subsidized creativity. Seems to me like a pretty reasonable model. Other sensible post-copyright models almost certainly exist; people just haven't thought of them yet, or haven't demonstrated that they can succeed.

> why is the notion of intellectual property any less legitimate than the notion of real property

hxa7241, above, links his summaries of four deontological argumentations on this issue.

http://news.ycombinator.com/item?id=3305043