Libertarians and IP, Round 2

In a previous post (// I critiqued a carefully reasoned attack on intellectual property rights by Tom Palmer, an influential libertarian theorist.  As discussed in my earlier essay, one of the arguments deployed by Palmer is 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 based on the idea that the enforcement of IP rights conflicts with the right of self-ownership because it would preclude persons from using their own bodies in certain ways, i.e. in ways that infringe patents or copyrights.

To briefly summarize, I replied to this argument by observing that: “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.” After substantial argument, I concluded that “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.”

However, upon subsequently reading an attack on IP rights from another respected libertarian philosopher, I realized that my previous analysis was incomplete. See Roderick T. Long, “The Libertarian Case Against Intellectual Property Rights,” in Formulations (Autumn 1995),  I am referring here to the apparent harm done to a person who independently (i.e. without relying on any disclosures by the patent-holder) invents something that infringes a patent. He has not done anything wrong, but is still deprived, at least temporarily, of all rights to his invention.

In discussing this problem in my earlier essay, I claimed that this situation has a parallel in the world of natural resource appropriation where, for example, two explorers  independently set out to claim an uninhabited island. It may be a matter of pure chance which explorer gets to acquire the prize; nevertheless, libertarians have no qualms about upholding the property rights of the first to satisfy Lockean standards.

However, Professor Long correctly points out that the patent case is dissimilar to examples of my kind because there neither party has any preexisting right to this land. In contrast, the second to invent (independently) a patented devise arguably has a right to exploit his labor under basic libertarian principles. As Long notes, this knowledge is innocently in his head, and under principles of self-ownership, he should seemingly be free to do as he likes with it. So, more needs to be said here.

I don’t believe that Long’s observation provides a decisive reason to reject IP rights. For one thing, it is certainly possible to labor innocently on something and yet justly be denied the right to exploit the results. Suppose that due to a surveying error you mistakenly begin developing certain acreage belonging to your neighbor.  Because it turns out that you were working someone else’s land, you are entitled to nothing for the value of your labor.

Thus, I believe the issue boils down to whether intellectual property is indeed some form of “property,” i.e. an intangible thing that can be reduced to individual ownership (at least for the term of a patent), and which permits the creator to justly exclude others. Long answers this question in the negative claiming that it is fundamentally unfair for a person “to claim ownership over a law of nature.”

In response to the obvious objection that patents only cover inventions, not discoveries, he asserts that: “Laws of nature come in varying degrees of generality and specificity; if it is a law of nature that copper conducts electricity, it is no less a law of nature that this much copper, arranged in this configuration, with these other materials arranged so, makes a workable battery. And so on.”  I believe this reasoning is fatally flawed.

It is much more plausible to say that the laws of nature simply supply the raw materials out of which inventions are fashioned. It is a law of nature that copper conducts electricity, but until some inventor figured out how to use this and other facts to make a battery, the laws of nature didn’t power flashlights, cell phones, toys, etc. On Long’s logic, original appropriation via homesteading shouldn’t be recognized either because the claimant didn’t create the land he will own, but merely develops it.

It should also be noted that under our IP law (and all other defensible examples), patents are only granted to inventions that are not obvious to one with “ordinary skill” in the relevant art. See 35 U.S.C, sec. 103. Thus, I believe it is reasonable to hold that patent-holders do create a form of property where none previously existed.

Even assuming this to be true, we might still reject IP protection if its effects on other innocent parties was unduly harsh.  This indeed is the template for the Lockean appropriation of land, which is deemed morally illegitimate unless it leaves, in Locke’s words, “enough and as good” for others. But, I don’t think patent protection fails this test.

First, there are an infinite number of things to invent, so that anyone who finishes in second place in the race to create a certain thing has an unlimited number of other opportunities. Second, the grant of exclusive right to exploit a patent is for a limited duration, so that independent “runner-up” inventors will eventually enjoy  the fruits of their labor. Admittedly, they may be of little value then, but it is not so clear that things would be much better in a patent-free world. The second place inventor would then not only have to compete with the first to invent, but also with nos. 3, 4, and 5, etc., not to mention coping with daunting issues of proof.

Finally, all aspiring inventors are on notice “that to the victor go the spoils,” so perhaps there is no harm done in enforcing the known rules of a fair, competitive game.

It is quite clear that for natural rights libertarians the question of IP is a tough one, which explains the widespread controversy. I think reasonable libertarians can reach conflicting conclusions here. I just happen to be (what I hope) is a reasonable libertarian that supports IP rights.

Finally, nothing herein should be construed as endorsing our actual IP laws. Perhaps it should be more difficult to obtain patents; maybe we should revise the methodology for calculating damages to make them less punitive; and we might consider shortening the lifetime of patents. But at issue here is the very justice of patent protection, not the particulars.  I am not convinced that the very concept of IP is indefensible from the moral point of view.  





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