When discussing issues of patent, copyright,a d trademark, it is important to note that, “Intellectual Property Isn’t Property.”
It never has been.
If I steal your car, you no longer have the use of that car.
If I excerpt your essay, you still have that essay.
You cannot take IP in the same way that one could a spoon:
Frank Luntz’s rebranding of the estate tax as the “death tax” was an impressive bit of marketing genius, but perhaps the greatest branding coup in modern American politics was the introduction of the term “intellectual property” into the policymaking lexicon. Intellectual property guarantees the owner exclusive rights to the use of an idea, but the uglier-sounding term “intellectual monopoly” is actually more accurate.
It may be too late to cast intellectual property out of our parlance in favor of intellectual monopoly, but it’s worth addressing the underlying philosophical claim to ideas as property. There is a strong consequentialist case for intellectual property in theory, but IP does not satisfy the Lockean definition of property and therefore shouldn’t grant the holder property rights under a natural-rights framework.
To examine where property rights come from, let’s turn to John Locke’s Second Treatise of Government. To avoid a lengthy discussion about the merits of Locke’s arguments, let’s take the existence of property rights as he discusses them as a given: If I own myself and I put a part of myself, through my labor, into an unclaimed physical object, I should have exclusive claim to it in the same way I should have exclusive claim to my body and labor.
Why doesn’t this logic work for ideas? Most obviously and importantly, because physical property is scarce and rivalrous. If I take a piece of wood from the wilderness and whittle it into a spoon, anyone who uses that specific spoon is depriving me of my ability to use it.
This is at the nub of the problem Locke is trying to solve. Because physical objects are scarce and rivalrous in use, rights to use and control are necessarily exclusive: If one person gets to use and control the spoon, nobody else does. Locke is wondering how such exclusive rights got going if (as Locke believed) the physical world was given to people in common by their creator. He solves the riddle by asserting the right of self-ownership. Since our bodies and minds start out under our exclusive control, mixing our labor with external objects can bring them out of the common pool and into the realm of private property.
Ideas, on the other hand, are non-rivalrous, meaning their use by one party doesn’t prevent another from using them. If I come up with a new design for a wooden spoon and someone else uses the same idea (whether they learned it from me or developed it independently), my ability to use that design isn’t impeded.
What is impeded is my ability to monetize my design while denying others the ability to do the same. And in cases where the cost of innovation is high but the cost of imitation low, that impediment could end up mattering a great deal for society. Encouraging innovation by helping creators to monetize their creations is at the heart of the consequentialist case for IP. These considerations are, however, outside the scope of a Lockean case for intellectual property.
Furthermore, while you have a right to the products of your mind just as you have a right to the products of your body, there’s an important distinction that must be made between an idea in your head and one that’s known to others. If I come up with an original idea for a widget, song, book, or joke, I could tweet it, tell it to a few close friends, or take it to the grave. This is a natural extension of someone’s right to their own mind.
But once an idea is out in the open, it’s analogous to someone selling or giving away physical property they appropriated from nature. As long as something is transferred voluntarily, the original owner can’t make a claim to this property once it changes hands (or in this case, minds). To maintain otherwise would violate the right to free exchange, a natural extension of the right to property.
Meanwhile, physical property could theoretically remain private forever, while even the staunchest supporters of IP rights believe ideas should enter the public domain at some point. Suppose Alice goes through the traditional process of Lockean appropriation to produce a spoon. That could be hers through the end of her life, but if she gives it to Bob it becomes his. He can then give it to Charlie, and so on. At no point in this chain does the spoon go back into the commons for someone else to appropriate. To believe that intellectual property is, in fact, property, one must also accept the possibility of this infinite chain of private ownership.
The solution to this conundrum is to understand that IP is public interest law, as it states in the Constitution, it exists, “To promote the progress of science and useful arts.”
It is there to serve the public interest, by making the public pay for its benefits.
In other words, it’s socialism.