The Rhetoric of Property RIghts

by on January 28, 2008 · 2 comments

One of the recurring themes in libertarian discussions of patent and copyright law is the question of whether these institutions are better thought of as a form of property rights or as government monopolies. Personally I think that the property metaphor misleads more than it illuminates, and so I tend to avoid discussing the subject in those terms.

Reason recently had a debate about global warming, which you can watch here. And interestingly, it ended up raising almost precisely the same issues. Fred Smith dismisses cap-and-trade schemes for limiting the emission of greenhouse gases as “rationing.” Around 3:45 in the fourth video, Bailey points out: “With regard to this notion that somehow this is ‘energy rationing,’ well, Fred, when we a forest, is that lumber rationing? When we privatize the fisheries, is that fish rationing?”

It’s a good question. The idea of property rights is central to libertarian thought, and as a result, labeling a given regulatory scheme a system of “property rights,” rather than “monopoly” or “rationing” automatically gives it a leg up in libertarian policy debates. But this also opens the door for mischief, as people pushing fundamentally un-libertarian policy proposals attempt to win the debate by re-framing their preferred position using the rhetoric of property rights.

Ultimately, you have to go beyond the terms to examine the underlying institutions to determine to what extent the underlying institutions actually fit the property model. I’ll just say that I think the analogy with property rights is somewhat problematic in both cases, but cannot be lightly dismissed in either case.

  • Timon

    Jim Harper, Richard Epstein, et al, are fundamentally right in their arguments about copyright as analogous to the Lockean nature + labor = property equation (it might even be a purer version of the concept than obtains in real property.) The problem is that while it is very easy to express that kind of principle in law (descriptively) it is occasionally impossible to do so in technology (imperatively.) Copyright is one of those cases – you cannot have free anonymous speech and copyright in a world of frictionless communication, whether or not the constitution provides for both. If anyone could anonymously send and receive whatever data they wanted, what would copyright even mean? You therefore have to have heavy state monitoring of all information flows in order for copyright to be feasible, on a technical level, whether through direct blocking or mandatory data retention that is available to some state agency so that subjects can be punished ex post. This should be as obvious as saying that Saudi Arabia can’t enforce its decency laws without something like the system it has set up. Some libertarians are more concerned with maintaining the Lockean abstraction and some are more concerned about the implementation. In the case of copyright the disagreement is not so much about whether authors have a moral right to control what happens to their expressions after publication but about whether enforcement of those rights are worth the cost to liberty.

    Patents are much harder to justify on property grounds, and unjustifiable without at least two changes to the law regarding them. In copyright it is very easy to know whether one thing came from another – for example it is mathematically near-impossible for two strings of more than 10 or 15 words to be independently created. In Lockean or property terms you can demonstrate an appropriation. In patents it is harder to demonstrate that one idea came from another, but it should be required, or at least allowed to be disproven. I think many people would be shocked to learn that independent invention is not a defense to patent infringement. That aspect of patent law is orthogonal to the Lockean idea, and to basic fairness. The second minimum change would be to require working models or detailed documentation of an actual thing, which could be compared to supposed infringers, and serve the disclosure function that patents were designed to encourage. A skilled person in a given field should be able to recreate an invention with nothing but the published patent, otherwise the customary delimiters of property, like recorded public notice and clear boundaries, are too vague to be meaningful.

    Those conditions on patents are already largely met by the pharmaceutical industry’s products — and since they deal in discreet compounds theirs are distinguishable in a way more conceptual patents aren’t. You would get into weird enforcement territory if everybody had a universal pill synthesizer at home. At that point it would become hard to square basic privacy, autonomy, etc with an enforcement regime that by definition would have to look into every house in some way to verify compliance, even though nothing else would have changed. Computers have already forced those issues in both the copyright and patent areas.

  • Timon

    Jim Harper, Richard Epstein, et al, are fundamentally right in their arguments about copyright as analogous to the Lockean nature + labor = property equation (it might even be a purer version of the concept than obtains in real property.) The problem is that while it is very easy to express that kind of principle in law (descriptively) it is occasionally impossible to do so in technology (imperatively.) Copyright is one of those cases – you cannot have free anonymous speech and copyright in a world of frictionless communication, whether or not the constitution provides for both. If anyone could anonymously send and receive whatever data they wanted, what would copyright even mean? You therefore have to have heavy state monitoring of all information flows in order for copyright to be feasible, on a technical level, whether through direct blocking or mandatory data retention that is available to some state agency so that subjects can be punished ex post. This should be as obvious as saying that Saudi Arabia can’t enforce its decency laws without something like the system it has set up. Some libertarians are more concerned with maintaining the Lockean abstraction and some are more concerned about the implementation. In the case of copyright the disagreement is not so much about whether authors have a moral right to control what happens to their expressions after publication but about whether enforcement of those rights are worth the cost to liberty.

    Patents are much harder to justify on property grounds, and unjustifiable without at least two changes to the law regarding them. In copyright it is very easy to know whether one thing came from another – for example it is mathematically near-impossible for two strings of more than 10 or 15 words to be independently created. In Lockean or property terms you can demonstrate an appropriation. In patents it is harder to demonstrate that one idea came from another, but it should be required, or at least allowed to be disproven. I think many people would be shocked to learn that independent invention is not a defense to patent infringement. That aspect of patent law is orthogonal to the Lockean idea, and to basic fairness. The second minimum change would be to require working models or detailed documentation of an actual thing, which could be compared to supposed infringers, and serve the disclosure function that patents were designed to encourage. A skilled person in a given field should be able to recreate an invention with nothing but the published patent, otherwise the customary delimiters of property, like recorded public notice and clear boundaries, are too vague to be meaningful.

    Those conditions on patents are already largely met by the pharmaceutical industry’s products — and since they deal in discreet compounds theirs are distinguishable in a way more conceptual patents aren’t. You would get into weird enforcement territory if everybody had a universal pill synthesizer at home. At that point it would become hard to square basic privacy, autonomy, etc with an enforcement regime that by definition would have to look into every house in some way to verify compliance, even though nothing else would have changed. Computers have already forced those issues in both the copyright and patent areas.

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