By Richman, Sheldon
The American Conservative , Vol. 11, No. 1
Staunch advocates of private property might be expected to support "intellectual property rights"--patents and copyrights--but these days that expectation is more than likely to be wrong. IP has come in for a thrashing from libertarians, among others, in the last few years, and it may be all over but the funeral.
The issue can be viewed from three vantage points: moral, economic, and political. The pro-IP lobby tends to conflate the first two, moving back and forth between assertions about justice and economic incentives. Their case is something of a moving target, so let's break it down.
The moral claim is that an inventor has an exclusive, enforceable right to his useful, novel application of an idea, while an author or composer has such a right to his original work or expression. IP specialists insist that what is owned is not an idea per se, but it's hard to make sense of that assertion since an application or expression of an idea is itself an idea. IP really is about the ownership of ideas, and therein lies the problem.
Why should an inventor or author have an exclusive right, whether in perpetuity or for a finite period? Ayn Rand, the late novelist-philosopher who vigorously defended intellectual property, replied, "Patents and copyrights are the legal implementation of the base of all property rights: a man's right to the product of his mind. Every type of productive work involves a combination of mental and physical effort..." Patent and copyright laws "protect the mind's contribution in its purest form." In this view, all property is ultimately intellectual property. As the 19th-century free-market anarchist Lysander Spooner wrote, an individual's "right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with his right of property in material things ... no distinction of principle, exists between the two cases." (Not all 19th- and 20th-century libertarians agreed--a notable counterexample being the individualist anarchist Benjamin Tucker, who thought patents were a pillar of plutocracy.)
But contrary to Rand and Spooner, there is a distinction between physical objects and ideas that is crucial to the property question. Two or more people cannot use the same pair of socks at the same time and in the same respect, but they can use the same idea--or if not the same idea, ideas with the same content. That tangible objects are scarce and finite accounts for the emergence of property rights in civilization. Considering the nature of human beings and the physical world they inhabit, if individuals are to flourish in society they need rules regarding thine and mine. But "ideal objects" are not bound by the same restrictions. Ideas can be multiplied infinitely and almost costlessly; they can be used nonrivalrously.
If I articulate an idea in front other people, each now has his own "copy." Yet I retain mine. However the others use their copies, it is hard to see how they have committed an injustice.
Contrary to Rand, ideas, while inherent in purposeful human action, have no role in establishing ownership. If I own the inputs of productive effort, that suffices to establish that I own the output. If I build a model airplane out of wood and glue, I own it not because of any idea in my head, but because I owned the wood, the glue, and myself. On the other hand, if Howard Roark's evil twin trespasses on your land and, using your materials, builds the most original house ever imagined, he would not be the rightful owner. You would be, and-bad law notwithstanding--you would have the objective moral right to use the design.
In practical terms, when one acquires a copyright or a patent, what one really acquires is the power to ask the government stop other people from doing harmless things with their own property. IP is thus inconsistent with the right to property.
An IP advocate might challenge the proposition that two or more people can use the "same" idea at the same time by noting that the originators economic return from exploiting the idea will likely be smaller if unauthorized imitators are free to enter the market. …