One of the hottest topics in contemporary rights-based libertarian theory is the question of whether intellectual property is justified from the moral perspective. While many important historical libertarian figures (e.g. Lysander Spooner) and modern ones (Ayn Rand and Robert Nozick) have defended the ethical foundation of this form of property, I think it is fair to say that the current tide of opinion is flowing in the opposite direction. One reason for this is the influential 1990 essay by Tom G. Palmer, “Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects” (in Harvard Journal of Law & Public Policy, Vol. 13/3), which is available here, http://tomgpalmer.com/wp-content/uploads/papers/palmer-morallyjustified-harvard-v13n3.pdf.
Before critiquing Palmer’s case against the justice of IP under libertarian principles, I wish to praise his essay as a very useful introduction to the entire subject. It is clear, thought-provoking and intellectually honest in its presentation of the case for and against IP. I learned and benefited a great deal from engaging with it. Having said this, I ultimately found the author’s reasons for rejecting a rights-based justification for IP to be less than compelling.
I will focus here on what I consider Palmer’s central argument (page references are to his essay). This involves the claim that there is an inconsistency between upholding libertarian rights on the basis of a labor-based moral desert theory (such as the self-ownership thesis) and the restrictions on liberty implied by IP. His claim is grounded in the idea that the enforcement of IP rights conflicts with the right of self-ownership because it precludes people from using their own bodies in certain ways, i.e. in ways that infringe patents or copyrights.
So, for example, if A has a patent over a particular invention, all other people within the applicable jurisdiction are legally precluded from using their bodies to make, use or sell this particular bit of technology without a license from the holder (pp. 827-9). Moreover, it is at least theoretically possible that two people will independently invent the same device simultaneously, yet the person filing for a patent first gets full rights to the invention, while his/her competitor must seek a license to use the invention he independently made (pp. 829-30).
I will pause here just long enough to clarify that while I do not subscribe to the self-ownership thesis, which seems to be Palmer’s primary target, I believe that his argument, if successful, would also be telling against Nozick-style libertarianism, i.e. one grounded in respect for persons as rational (moral) agents. Therefore, I will simply proceed as if Palmer’s argument is intended to show that the recognition of IP rights would unduly limit the scope of rational agency.
Palmer recognizes, of course, that libertarian self-ownership and the rights it implies over land and other material goods also restrict the freedom of action of all others. As Nozick puts it, “My property rights in my knife allow me to leave it where I will, but not in your chest.” (ASU, p. 171). But, Palmer holds that IP rights are qualitatively different because “while property in tangible objects limits actions only with respect to particular goods, property in ideal objects restricts an entire range of actions unlimited by place or time…by all but those privileged to receive monopoly grants from the state” (p. 830). Thus, my libertarian rights over a particular abacus only deprives the rest of the world of the liberty to use that exemplar without my consent, while a patent on the invention of the abacus “would be a restriction on the liberty of everyone who wanted to make an abacus with their own labor out of wood they legitimately owned” (p. 831).
This is an ingenious argument, but I daresay that upon close inspection the bright-line distinction that Palmer seeks to establish begins to blur. First, the restrictions on liberty imposed by IP are not as onerous as they might seem at first glance, and conversely, the constraints on our freedom of action created by tangible property rights may be much greater than Palmer acknowledges.
Turning to the first half of this assertion, I believe it should be apparent that patent rights actually represent a fairly trivial restriction on self-ownership. I note initially that all patent regimes in the civilized world grant a relatively short period of exclusivity. In our system, it is 20 years from the date of filing, which in practice means an effective life that is a few years shorter than that. Comparable limitations exist in the systems of all developed countries.
But there is nothing magical about this particular time span. I take it that, as Nozick remarks, the idea is that the period of exclusivity is “a rough rule of thumb to approximate how long it would have taken, in the absence of knowledge of the invention, for independent discovery.” (ASU, p. 182) Any system that would pass muster from the rights-based libertarian perspective will have this feature. Thus, to use Palmer’s example of the abacus, if there were a patent office back in ancient Mesopotamia, the inventor would have enjoyed his 20 year monopoly several thousand years ago, after which the invention would reside in the public domain throughout eternity.
It is true that copyrights enjoy a much longer period of exclusivity (life of the author, plus 70 years), but this does not seem to constitute an undue burden on the freedom of others to write, compose, paint, etc. This is because the chances of another person independently writing something that copies (for example) the text of the late, great Graham Greene’s Travels With My Aunt, is extremely remote, and thus represents a lesser burden on the liberty of other novelists. I believe the same observation would apply equally to the other genres that are subject to copyright. Here again, once the copyright expires, works of literature, songs, paintings, etc. may be used without restriction for eternity.
I think is also bears mentioning that it is “black letter” law for all patent regimes with which I am familiar (and certainly for any system that libertarians would care to endorse) that legal monopolies will be granted only for inventions and not ideas. Accordingly, you cannot patent your incredibly brilliant idea for a single wonder pill that will cure all cancers, but only a specific and novel molecule or compound that is “useful” in the way defined and required by our patent code. Similarly, an inventor cannot patent the idea of a device that enables a person to perform arithmetic calculations without paper or pencil, but only a specific, original device that enables a person to do so.
Accordingly, a patent on the abacus would not prevent the invention of other novel methods of doing arithmetic automatically, such as the mechanical adding machine and the electronic one. Similarly, Greene’s copyright on Travels doesn’t preclude other authors from writing about eccentric, adventurous mothers posing as their son’s aunt.
Of at least equal importance, libertarian rights over tangible things may be just as onerous as Palmer supposes IP to be. Thus, in contrast to the finite life of patents and copyrights, once title to land is justly acquired, the owner can hold it for his/her entire lifetime, and then control its use even after death by bequest. The owner might also place the land in a trust that will govern its use in perpetuity. Thus, I may acquire vast tracks of Western land (a la Ted Turner) and dedicate them as a nature preserve, which will restrict the self-ownership of all others for all time by prohibiting them from using their bodies to trespass on this land.
Moreover, under rights-based libertarian principles the owner of a particular resource might legitimately gain a position that will limit the freedom of all other individuals over “an entire range of actions unlimited by place or time” (the same indictment Palmer lodged against IP). Suppose that some particular rare mineral is required in the production of certain high-tech electrical devices. For the time being there are many sources for this input.
However, a particularly clever entrepreneur calculates that within a few years all sources of this mineral but one will be exhausted, and that it will take many years, if ever, for new deposits to be identified and developed. This wheeler-dealer acquires the one sustainable mine and waits for the others to shut down. When this occurs, she will enjoy a veto right over the production of all the gizmos that require this rare metal, just as if she had a patent over these devices, except that this monopoly may be of a potentially infinite duration.
Before leaving this subject, I should note that there is also a parallel in the libertarian theory of tangible property to the problem Palmer cites with respect to simultaneous invention. It is uncontroversial for natural rights libertarians that in a Lockean state of nature, ownership of wild fruits and game belongs to that party who first reduces them to possession. Therefore, two hunters may each spot a wild deer grazing on unclaimed land at the same moment, load their respective arrows, and it may be pure chance that determines which arrow strikes first. One hunter will own the prize, while the other takes nothing. A similar story could be told with respect to two explorers, each of which intends to claim an uninhabited island.
Accordingly, there does not appear to be, as Palmer contends, a qualitative difference in the degree to which libertarian rights limit freedom in the case of material and ideal property. This leaves Nozick’s justification for IP unscathed. He argues that people are morally entitled to full capitalist rights over natural resources so long as they improve the property in a substantial way and do not disadvantage others in the process. See the discussion in Nozick’s Libertarian Project, pp. 34-8. He applies this same analysis, grounded in desert, to patents.
Just as a homesteader improves land as a condition of morally legitimate first acquisition, an inventor improves the state of the art in some particular field of technology. And, as Nozick observes, “An inventor’s patent does not deprive others of an object which would not exist if not for the inventor” (ASU, p. 182). Moreover, as noted above, the interests of other would-be inventors are protected by the limited duration of the legal monopoly. In light of the points made above, Palmer gives us no reason to reject Nozick’s theory of original appropriation as applied to IP.
Of course, Palmer’s essay does not exhaust the supply of moral arguments against IP, but I believe that the above analysis undercuts what might be the most influential of those circulating about.
Finally, nothing herein should be construed as a defense of our actual code of IP law or the manner in which it is practiced in the “real world.” From what I can gather, this is an absolute, anti-competitive mess. Nevertheless, just as the evident difficulty of implementing the criminal law requirement of proof “beyond a reasonable doubt” in a fair and impartial way does not by itself discredit this standard, so too the problems with our existing IP system do not demonstrate that the very concept of IP is fatally flawed from the moral point of view.