Libertarianism and the intellectual property paradox
May 15, 2008 by Abhishek
Intellectual property laws, such as those relating to copyright or patents, are a source of considerable disagreement among libertarians. The reason is not hard to see. In the words of Rodrick Long,
When libertarians of the first sort come across a purported intellectual property right, they see one more instance of an individual’s rightful claim to the product of his labor. When libertarians of the second sort come across a purported intellectual property right, they see one more instance of undeserved monopoly privilege granted by government.
In this fine article, Long argues against intellectual property laws from a libertarian perspective and points out there are other means (such as laws against fraud) to achieve many of the same results. My position on the matter is less extreme than Long’s. I believe that a case does exist for some intellectual property laws; however I also believe that current laws are more restrictive than is necessary. For instance, there is no justification, in my opinion, for the absurdly long copyright laws that currently exist in the United States (and were passed incidentally, under pressure from media corporations).
The matter is complex and deserves a longer post, which I hope to attempt some day. For now, I’d like to point the reader to the fact that Neil Nataniel is currently guest-blogging at Volokh on what he calls the “copyright paradox”, a reference to the fact that copyright simultaneously enables and restricts free speech. The first two posts are here and here.
Copyright is an open and shut case. Anyone with half a brain should be able to say that if someone created a work, it belongs to him. People can disagree on the legal methods used to grant protection to copyrighted works, whether the protection should be of a perpetual kind (Mark Twain wanted it) and how far the copyright owner can extend his control on the end use of his work, particularly that which occurs in the confines of the consumer’s home - dvd or cd ripping and copying, scanning magazines and books and keeping such images on the computer for easy access and so on. But there can be no two views on whether it is a right. It is. For those who have not read it, Lessig’s book - Free Culture (pdf) - makes great reading.
Patents are a tricky issue. While I am for regular patents based on the condition of non-obviousness, I am against patents on algorithms and methods (like those used in claims for software patents and patents on business methods), That said, I am a little ambivalent on breakthroughs like the Diffie-Hellman-Merkle Key Exchange and RSA Public Key Cryptography algorithms because of the problems they solved. Did they or did they not deserve patent protection in spite of being mathematical algorithms?
The problem with the present IP regime is that there is too little of innovation and too much of law. Patent trolls are running amok with suspicious patents that the USPTO sometimes seems to grant (the one on turmeric, or the one on play lists for e.g.), and companies are paying up rather than risk a lawsuit with an unknown outcome. This has facilitated a jump from legal protection to legal terrorism.
That, however, goes to the heart of the matter. In a naive sense, if someone created a work, it belongs to him. However, intellectual property is fundamentally different from tangible (physical) property. Think about people who view or read the work. It becomes a part of their intellectual repertoire too and surely they have ownership upon anything thats part of their brain. Therefore overly restrictive copyright laws can actually hurt individual liberty and rights by preventing one from expressing one’s thoughts and ideas. Of course you may say that it is only expressions of ideas that are copyrightable and not the ideas themselves; plus there is the fair use exception. In practice however, the situation is more complex than that. Thus, conflicting notions of freedom come into play, and there are no easy answers.
My position, which I hope to expand upon some day, is that there should be some copyright, but it ought to be much less restrictive than what it is today. I have a similar position with respect to patents, and I agree with you that the current IP regime ‘has facilitated a jump from legal protection to legal terrorism.’