indessed roscivs

Libertarians are most often seen as those who want small or no government, where enforcing property rights and contract law are its only role. The idea of one’s property as almost sacrosanct is a common theme. But why have property rights at all? Why are they a foundation upon which a society should be built? Surely they’re not innate or natural, but rather a government-created fiction. So why should “intellectual property” rights, which are also a government-created fiction, be any different?

First of all, this doesn’t pose a problem at all for the libertarian of the Randian persuasion, who are mostly in favor of intellectual property. The foundation of this movement is the moral principle of “non-initiation of force,” which means that the use of force or violence is only justified in retaliation for theft of property. They tend to believe that this is equally true for intellectual property as for physical property—violation of either is grounds for retribution (such as monetary damages, prison time, etc).

The libertarian who believes in the non-initiation of force principle but not in intellectual property does have a bit of explaining to do. Why should the use of force be justified in cases of violating physical property, but not in cases of violating intellectual property?

I personally don’t believe in the non-initiation of force principle as a moral absolute (at least not in the way that many libertarians believe it), so I can’t offer a compelling explanation for this viewpoint. I’m a utilitarian, so I look at the question of physical property and intellectual property from a utility standpoint: does invoking force to protect physical property have more utilitarian value than invoking force to protect intellectual property? I believe the answer is unquestionably yes.

The simplest significant difference to see between physical and intellectual property is that intellectual property is a difficult concept to define. Copyrights, patents, and trademarks are all very different beasts, but they all fall under the general umbrella of “intellectual property”. Furthermore, all intellectual pursuits have some commonality—where do you draw the line for infringement? Are only exact duplicates considered infringement? What about borrowing the ideas but creating new material, like fan fiction? What about simply being inspired by a work you read or heard? What about sampling of music? Translations? Format shifting? Each of these have had a different status under copyright law over the years.

Physical property is much easier to define because it can only be in one place at one time, and possessed only by a single person. If you take my watch or my wallet, I do not have them any more and have more obviously been wronged. With land and real estate, you can “infringe” or trespass without actually taking the property from me, but again it’s easy to define. There’s a distinct, visible, definable property line that, when you cross without permission, you are deemed to have trespassed and violated my property rights. No such distinct, obvious line is available for copyrights, patents, or trademarks.

Another difference is the possibility of what I call “infringement at a distance”. To violate physical property rights, you (or some physical agent of yours) always has to be physically located next to that physical property, whether you’re stealing my jewelry or trespassing on my land. With intellectual property, it’s possible to infringe distantly, privately, using only one’s own materials. For example, if I attend a poetry reading, later on that night, in the privacy of my own home, using my own pen, ink, and paper, I can transcribe the poem from memory, make dozens of copies, and give them to my friends, even from hundreds or thousands of miles away. The original author of the poem may have no way of knowing that I’ve even copied his poem without authorization.^[1]

The practical result of infringement at a distance is that enforcement is much more costly and invasive. Perfect enforcement of copyright, I believe, would require nothing less than a police state. From a utilitarian standpoint, this means that the benefit to society of intellectual property must be significantly higher than the benefit to society of physical property in order for it to command the same respect and legal status.

More on this subject next week …

This entry was posted on Sunday, September 30th, 2007 at 6:22 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.