In the first part of this series I briefly defined what intellectual property is and what are its practical effects. Then I argued that from an economic point of view how intellectual property is an entirely unnecessary and harmful concept. In this part, I am going to expand on the economic argument and also analyze some of the ethical problems with IP and its legal consequences from a libertarian standpoint.
Probably the most important thing to remember when we consider the issue of IP is that when we gain knowledge of a certain ideal object (using this term somewhat loosely), such as a recipe, technique, or a story and use it, i.e. apply it to the tangible physical (and scarce) goods that we possess, we are not taking anything from anyone against his will, we are simply copying someone’s idea. This is a large difference, which a lot of the defenders of IP muddy, either incidentally, or on purpose. To copy someone’s technique of harvesting his crops is not to take it away from him with force. He can still use it in his own harvesting activities i.e. he can still apply this idea he is aware of, to his own tangible property (and as explained in the first part, ideas are not scarce the way tangible goods are and there can be no theft and no property to begin with, without scarcity).
Many proponents of IP try to make it sound as if copying is the same as stealing. We have all seen and heard the “piracy is theft” campaigns against internet ‘piracy’, which is simply the online sharing of digital copies of music, books, articles, and etc. It is crucial to remember that copying is a very different thing from stealing, even when we are talking of tangible physical goods. When something is stolen, the original owner loses his tangible good – it is taken away from him against his will and this necessarily involves violence. When something is copied on the other hand, the original owner still keeps his own good it’s just that now another person has a copy of that same good for his own use.
This leads us to another big problem with the enforcement of intellectual property – it necessarily entails arbitrarily restricting the use of other people’s property. IP ensures rights in ideas, but this has a direct effect on the usage of tangible goods in which those ideas are instantiated.
Let’s illustrate this by returning to the example I gave in the first article of me inventing a new sort of potato and patenting it. If another person who grows potatoes figures out how to grow this new sort, and attempts to do so on his own property, with his own tools, labor, and potatoes, he would be considered a criminal and persecuted by the State as a thief. He is operating entirely with tangible physical good which he rightfully owns, yet my patent limits his use of those goods!
Following up on this line of reasoning Roderick T. Long argues that information is a universal which exists only in the minds of humans, and thus you cannot own information without owning the humans in whose consciousness that information is contained. And that means attempting to enforce something like partial slavery over the people who are aware of copyrighted and/or patented ideas. In essence then, anyone’s “intellectual property” in some idea, will always necessarily interfere with someone else’s free use of their own tangible physical property and even their own body! From the libertarian standpoint, this is a disturbingly contradictory consequence of attempting to enforce such ‘rights’ and should raise a lot of red flags.
From the economic and natural rights point of view then, there are clearly some massive problems with IP. But there are a lot of people who argue in favor of intellectual property based on utilitarian arguments, especially insofar as patents are concerned, claiming that it stimulates innovation and that without IP there would be no motivation for technological inventions or even new developments in the arts. This utilitarian argument in favor of IP of course does not solve the numerous problems and contradictions we already discussed, both economical and ethical, but the question is, does it make a legitimate point on its own?
For the most part, no it doesn’t. In fact I would argue that patents will always tend to have an obviously detrimental effect on technological innovation. Think about it – we are supposed to believe that something which is designed specifically to secure monopoly privilege for an arbitrary amount of time and thus restrict potential competition somehow is conductive to innovation? If a given inventor knows that when he innovates a new technological gadget he can secure exclusive right to produce and sell that gadget for a given time period, will he be incentivized to innovate more in that time period? No, because he has a secure income stream from his first innovation and as long as his patent lasts, he doesn’t have to worry about losing his market share.
Especially when it is a new technological innovation, the innovator is very often guaranteed an inelastic demand for his new good which only he can satisfy, because no one is legally allowed to copy his idea. This way, the inventor has no incentive to develop his innovation further and keep creating new and better products. But if the invention couldn’t be patented, the inventor would have to keep upgrading and developing his product further in order to stay ahead of his competition, which is attempting to copy him at his every step. The only way he or she can stay ahead and keep reaping profits is to constantly keep innovating. Thus, on the contrary, I would argue that patents do not stimulate innovation at all, but in fact limit it to a very large degree.
In conclusion, intellectual property laws, by attempting to establish property rights in ideas by state fiat, not only create artificial scarcity, but also necessarily lead to violations of people’s natural rights in the tangible goods that they rightfully possess. Starting with economic nonsense, the concept of “intellectual property” results in a serious violation of libertarian ethics. And on top of that, as a monopoly privilege granted by the State, IP such as patents necessarily dis-incentivize innovation and hamstring competition.
If this series hasn’t convinced you that a libertarian should oppose intellectual property, I hope that it has at least sparked some interest in the subject. There are many other problems with intellectual property besides these discussed so far, but to attempt to go through all of them would take us far beyond the scope of this two-part series of articles. If you are interested in some further reading on the topic, I encourage you to check out the works and authors that I have already referenced.