The distinction is a direct consequence of the fact that intellectual property isn't actually property. (Because it is not scarce.)
Re: scarcity, nothing about property requires it to be scarce. Anglo law has been treating intangible things like contractual rights as property for hundreds of years. Moreover, you're playing a definitional game you're going to lose. Are you suggesting, for example, that if land weren't scarce, it shouldn't be the subject of property rights? Moreover, while copies of say a movie may be infinite, movies themselves are not. There are finite movies in existence, and each one takes effort and investment to produce. The property right attaches to the scarce resource of movies, not the unlimited resource of copies thereof.
As for the scarcity of movies. Well, that's a tough one. First, there is no way I can actually steal a movie —short of abducting the director, stealing the props… I mean, all I can do is download a copy at almost zero charge. Even if I shoplift a DVD, that's not stealing the movie, that's stealing a plastic disc.
The problem is, the value of the film is completely decorrelated from its scarcity. As you say, it takes resources to make a film: time, cameras, actors, props… most of which are scarce —some are not, like stock footage. Once the film is done however, the film itself is not scarce at all: it can be copied over and over at near zero cost.
The easy way out is to go back to scarcity: you know how to monetize it: just sell the artificially scarce copies. But this is obviously not ideal. Our world is sufficiently flawed as it is, adding artificial scarcity on top of it doesn't sound like a great idea.
Hence the question: how do you distribute something abundant when the production of the first copy consumes scarce resources? I don't know. But people are working on it, and have produced some ideas that are worth trying: global licence, basic income… Or maybe just lower the length of the granted monopolies, like 10 years after publication or so. Even if we can't abolish artificial scarcity altogether, we might be able to reduce it.
You're taking things too literally. Defending my property doesn't necessarily require me to do it. I can pay others to do it. This does not require a coercive third party.
> Re: scarcity, nothing about property requires it to be scarce.
Of course it does. Property itself is a construct invented by us in an attempt to resolve conflict. If something isn't scarce, then there can be no conflict, since my use of something does not conflict with your use of the same thing.
> Are you suggesting, for example, that if land weren't scarce, it shouldn't be the subject of property rights?
It's beyond my capacity of thought to even imagine what "land isn't scarce" would even look like. I guess it would require some sort of reality where N people could occupy the same space without impeding on the use of said space by the other N-1 people. In that case, certainly, it wouldn't be property.
> There are finite movies in existence
Finiteness has nothing to do with this. There are also a finite number of copies of movies, and yet, I claim such things are not scarce.
I don't believe this distinction applies here. Not all IP requires the government to enforce it (e.g. trade secrets). Conversely, if someone were to move into my yard, or steal something from me, I would call Police (an agent of the government) to enforce my property rights.
Note: I'm not trying to defend or ague for property rights, merely pointing out that this particular distinction is in valid, as the poster above pointed out -- all property is, to an extent, government enforced.
Property rights over tangible things (whose use is physically exclusionary) do not require the defense of a coercive third party. That this is how the world works in the US today does not imply it is the only way. For example, I could defend my property with my own weapons. Or more likely, I could pay someone else to defend it for me.
I would still claim that the distinction you're drawing is arbitrary. Yes physical objects and ideas are different and the ways one goes about defending them will, of course also be different. The defense of intellectual property does not, in principle, require enforcement by a coercive third party. I could defend it by keeping it a secrete, or announce to the word that I am in fact the inventor (ownership of an idea does not necessarily have to imply exclusive use of it).
You're claiming that the attribute of physical exclusivity is essential to the notion of "property"; I can argue that it is incidental. The import thing is that thorough appropriating your property, I am depriving you of some tangible benefit. In case of physical property, the benefit is the (necessarily) exclusive use of that property. In case of intellectual property, the benefit maybe competitive advantage (if I choose to keep my knowledge secret), or a revenue stream (if I choose to allow others to benefit from my knowledge in return for compensation), or reputation and status (in being acknowledged as the inventor).
That paper makes the same erroneous assumption:
"Only tangible, scarce resources are the possible object of interpersonal conflict, so it is only for them that property rules are applicable."
This obviously wrong. Reputation, influence (political religious, etc), honor, status, competitiveness -- all quality sources of "interpersonal conflict".
In fact, the paper conveniently avoids tackling some forms of intellectual property--trade secretes and trademarks-- by dismissing them as "less problematic" (thus tacitly acknowledging the validity of the concept of "intellectual property") and instead chooses to focus on copyrights and patents (both of which are indeed severely flawed -- today even more so then when the paper was originally published). It is thus drawing an arbitrary distinction between different forms of intellectual property -- something it goes on to condemn later. Note that the classification of physical property is also essentially arbitrary (e.g. the notion of "private property", as applied to physical objects, was far weaker in the Soviet Union, and still is elsewhere in the world, than it is in the US).
EDIT: grammar + clarity.
Defense of property is defense from an aggressor trying to take that property from you. The things you've noted may be defense in some general way, but they certainly aren't the sort of "self defense" that is implied when speaking of defending one's property.
In particular, defense ought to be expanded to "the legitimate use of physical force or threat of force in proportionate response to the initial use of physical force or threat of force against your person or property."
In this sense, IP absolutely requires a coercive third party.
> You're claiming that the attribute of physical exclusivity is essential to the notion of "property"; I can argue that it is incidental. The import thing is that thorough appropriating your property, I am depriving you of some tangible benefit.
You have it backwards. The only reason why you're depriving me of some tangible benefit is because it's scarce. If you take some resource from me that isn't scarce, then no benefit is lost because I can immediately conjure up another resource of identical value. Therefore, there is no conflict.
> In case of intellectual property, the benefit maybe competitive advantage (if I choose to keep my knowledge secret), or a revenue stream (if I choose to allow others to benefit from my knowledge in return for compensation), or reputation and status (in being acknowledged as the inventor).
Defining property in terms of tangible benefits is simply untenable because there is no bound to it. For example, I could claim that the person who lives next to me lowers the value of my house because they never cut their lawn. I could therefore claim that they are creating conflict because they are removing some tangible benefit that I have.
We can't define property in terms of "tangible benefits" because "tangible benefits" could be just about anything. It makes the concept of property untenable as a means to resolve conflict and this is why it is rejected.
> This obviously wrong. Reputation, influence (political religious, etc), honor, status, competitiveness -- all quality sources of "interpersonal conflict".
You're misinterpreting the piece you quoted by assuming that "interpersonal conflict" can mean any kind of grievance someone might have. Frankly, that's ridiculous and defeats the whole purpose of having a system of ethics in the first place.
Kinsella makes it quite clear that interpersonal conflict is conflict in which one person deprives another person the use of a resource. This can only happen when the resource is scarce, otherwise it cannot be deprived from anyone.
> In fact, the paper conveniently avoids tackling some forms of intellectual property--trade secretes and trademarks-- by dismissing them as "less problematic" (thus tacitly acknowledging the validity of the concept of "intellectual property")
The paper does address them, you just didn't read those parts. Trademarks are discussed starting on page 43 and it's quite clear that no validity is given to the concept of intellectual property rights. Instead, some aspects of trademark law can be enforced with respect to the consumer (via charges of fraud).
> It is thus drawing an arbitrary distinction between different forms of intellectual property
It's not. Everything is explained. You're taking the "less problematic" portion out of context. Kinsella proceeds by arguing that any law which depends on the notion that ideas can be owned is illegitimate. He then goes on to show how most laws under the umbrella of "intellectual property" depend upon the notion that ideas can be owned (and are therefore illegitimate). Notably, there are some laws that don't depend on idea ownership and therefore could be legitimate.
This isn't arbitrary at all because it's consistently applying the illegitimacy of owning ideas.
> Note that the classification of physical property is also essentially arbitrary
It's not surprising one would think this. Property isn't exactly a universal law of physical reality. It's a useful heuristic that can be used among a collection of individuals who seek to resolve conflict peacefully in lieu of violence.
Why? You're arbitrarily narrowing down the definition of "defense" to suit your argument. Are you saying that anything short of physical violence or threat of physical violence is not a real threat that can be legitimately defended against (either through physical means or otherwise)? An if we're going down this route, an attacker may well choose physical violence to get me to divulge my knowledge just as they might use it to deprive me of a physical possession.
>The only reason why you're depriving me of some tangible benefit is because it's scarce. If you take some resource from me that isn't scarce, then no benefit is lost because I can immediately conjure up another resource of identical value. Therefore, there is no conflict.
True, but again, you're thinking of scarcity in purely physical terms. Say I run a food stand, and due to my grandma's secret sauce recipe, I have no shortage of customers. You, my competitor, acquire that recipe from me (you may have stolen a written copy, blackmailed me, or even simply beaten it out of me in a dark alley). You now start adding the same sauce to your product and take away some of my customers. Your knowledge of the recipe, has not diminished my knowledge of it, however it has diminished my competitive advantage (the scarce "resource" in this case) and so that knowledge no longer has the same value.
>Defining property in terms of tangible benefits is simply untenable because there is no bound to it. For example, I could claim that the person who lives next to me lowers the value of my house because they never cut their lawn. I could therefore claim that they are creating conflict because they are removing some tangible benefit that I have.
Yes, true, and certain councils and home owners associations do exactly that. It is a gradient. But that's the point -- the place where you choose to draw the "property" line on this gradient is necessarily arbitrary. You're claiming that your arbitrary point (physical exclusivity) is actually the right point, and any other point is "untenable". My argument is that this is not the case, and today, in a world of increasing automation of physical labor and freer, near-instantaneous communication, where an increasing portion of the population (in the West, at least) are engaging in what could be classified as "intellectual pursuits", physical boundaries are becoming increasingly inadequate.
>The paper does address them, you just didn't read those parts.
You're right, I've lost interest words the end of the paper, and didn't read it all the way through. My apologies. I have now.
>Trademarks are discussed starting on page 43 and it's quite clear that no validity is given to the concept of intellectual property rights.
Not in the case of trademarks. For trade secrets, the author, after wrangling with the legal notion of contract, does begrudgingly admit that trade secrets are a valid form of intellectual property (or at least, that they may form a valid grounds for legal recourse...).
The author's argument against trademarks is absurd. After establishing the concept of a trademark in the first paragraph, they dismiss it out of hand and with no justification or argument to back it up at the beginning of the second. The author then proceeds to construct and knock down the strawman of consumer rights (which is not what trademarks are about). Finally, they use their (entirely unsupported) conclusion about the notion of trademark ownership to dismiss the idea of trademark dilution.
>This isn't arbitrary at all because it's consistently applying the illegitimacy of owning ideas.
Except the author never justifies it. Instead, they assume illegitimacy of owning ideas, and then proceed to use that assumption to demonstrate how the (a priori) illegitimate laws are, in fact, illegitimate. The whole thing is an exercise in circular reasoning:
you can't own ideas --> laws that depend on owning ideas are illegitimate; there are no legitimate laws that support owning ideas --> idea ownership is illegitimate