Shape of Libertarian IP Debate: Moebius Strip

by on May 5, 2008 · 18 comments

TimLee noted below some of the divisions of the libertarian IP debate into rights advocates and utilitarians.

 

The utilitarian/individual rights dichotomy is fascinating, but seems to me one can only push it so far before it collapses (I think it was Hayek who explores this collapse in more depth, too lazy to look it up right now). That’s because

 

a) classical liberal versions of utilitarianism tend not to discount the experience of single individuals as heavily as do more Benthamite utilitarians or law-and-econ game theorists (two examples, they rank consensual transactions highly, and Austrian-influenced thinkers would warn one to avoid of interpersonal utility comparisons);

 

and b) at bottom, no one is likely to give a fig for a set of individual rights that on the whole tend to lower standards of living, such that more babies with cleft palates are allowed to die, and so on.  [UPDATE: hmmm, I think that is overstating the case more than a little, people do tend to have a good bit of empathy for one another, but the general point is just that, the case for individual rights had better not run *against* raising standards of living as a general matter, or it will lose].

 

One of the strengths of classical liberalism has always been the twining together of concern about the growth of wealth and the shrinking of poverty with concern about rights—challenges to the Corn Laws, challenges to Jim Crow laws, and so on. The fact that the two twine together is not a coincidence. It is because *if* individuals have certain rights, natural or otherwise, it is because of some key features of human beings and human life in communities, which includes economic life. At bottom, the philosophical roots of both economic thinking and rights thinking will be closely related (e.g. Locke).

 

The reason that IP policy debates tend to run utilitarian is not just a result of the personal mindsets of the participants, either. One is dealing with tricky stuff. Many libertarian issues are “easy,” not in the sense of being “easy” as a political matter or of getting past people’s preconceptions, but in the sense that they do not require us to revisit the basics. Few of the arguments about free trade, price controls, education, social security, indecency, health markets, tax policy, involve reconceiving of the boundary lines of contract and property that constitute markets *and* that define individual rights within those markets. IP arguments—rather like arguments about abortion–do involve arguing about where those boundaries go. What kind of rights can one have in information? Where should the boundaries be exactly? How far can the analogy to property be carried? When one is arguing about the details of where the boundaries of rights should be, well, it is tricky to make arguments from individual rights because such arguments will tend to beg the question.* One generally cannot assume the boundaries in dispute.

 

Because the boundaries are in dispute, furthermore, this shifts one to thinking about what those boundaries could be at some point in the future, especially, in the very long run. Then, Rawlsian veil stuff happens. Individuals tend to fade out of this picture—they themselves no longer are clear where their own interest lies, and must think about rules in the abstract. (“Constitution interest” as opposed to “action interest”). Will they be producers or consumers? Buyers or Sellers? Minority or majority? Where will the technology go? The best consensus at that point will form around rules that seem to give everyone a fair shot (more Hayek). If that shifts the boundaries of rights, that’s okay—so long as it is not retroactive, and within bounds (and one can argue about where those bounds are, too, on and on , blah blah blah).

 

Another thought. Some of the IP debate seems to be about individual rights, but it is really about individual interests—long or short run. Many advocacy groups are strong on *short-run individual interests* in access, low-cost, and so on, and individual rights become a vehicle for advancing that (I wonder if underlying some of this is that there are a lot of  Act Utilitarians, as opposed to Rule utilitarians, kicking around here). Many tech companies are oriented to serving those interests. That’s fine. But if rights only track short-run interests, we’ve got a crummy theory of rights. 

 

Stopping now.

 

   

 

  • Tim Lee

    Well put! I think you’re basically right that one of the things that’s going on is that copyright and patent debates help to accentuate out the limitations of naive theories of natural rights. If everyone agrees what rights we have, then it’s easy to construct a logical framework of policy positions atop it. But if the nature and scope of peoples’ rights are itself in dispute, then we have to look at our underlying reasons for supporting rights in the first place. And that inevitably leads people into at least consequentialist, if not utilitarian, discussions.

  • http://linuxworld.com/community/ Don Marti

    This is really another case where we need two words for “right”. One for “natural right” or “human right” (right to free speech, right to keep and bear arms, right of privacy) and one for “rights within a system” (right of way, grazing right, IP right).

  • http://www.tc.umn.edu/~leex1008 Tim Lee

    Well put! I think you’re basically right that one of the things that’s going on is that copyright and patent debates help to accentuate out the limitations of naive theories of natural rights. If everyone agrees what rights we have, then it’s easy to construct a logical framework of policy positions atop it. But if the nature and scope of peoples’ rights are itself in dispute, then we have to look at our underlying reasons for supporting rights in the first place. And that inevitably leads people into at least consequentialist, if not utilitarian, discussions.

  • http://linuxworld.com/community/ Don Marti

    This is really another case where we need two words for “right”. One for “natural right” or “human right” (right to free speech, right to keep and bear arms, right of privacy) and one for “rights within a system” (right of way, grazing right, IP right).

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Don makes a very valid point, that we could use two words for “right”.

    What has consistently bothered me about the concept of IP as a “right” is that when a product is “sold”, the buyer (in theory) acquires a right to that product. However, the trend in IP is that property boundary has been to shift it to the point where the buyer of a product has virtually NO property right to that product under the auspices that the product is being “leased” or “licensed” rather than sold.

    While Solveig’s post, as well as many others, acknowledge that the concept of property is fluid and consequently it is difficult to establish a clearly defined property right boundary, there is a shortage of posts that examine the IP property boundary question from the perspective of the buyer.

    The assertion by some that an IP creator can define the rights of how a buyer can use a product would seem, to me, to create an un-libertarian society where some have “rights” and others don’t.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    Don makes a very valid point, that we could use two words for “right”.

    What has consistently bothered me about the concept of IP as a “right” is that when a product is “sold”, the buyer (in theory) acquires a right to that product. However, the trend in IP is that property boundary has been to shift it to the point where the buyer of a product has virtually NO property right to that product under the auspices that the product is being “leased” or “licensed” rather than sold.

    While Solveig’s post, as well as many others, acknowledge that the concept of property is fluid and consequently it is difficult to establish a clearly defined property right boundary, there is a shortage of posts that examine the IP property boundary question from the perspective of the buyer.

    The assertion by some that an IP creator can define the rights of how a buyer can use a product would seem, to me, to create an un-libertarian society where some have “rights” and others don’t.

  • Timon

    This is correct, but it is an illustration of why “IP” is a bad umbrella term, and the reason has to do with the level of abstraction at which a right is granted. For example, for IP skeptics, copyright discussions are almost purely utilitarian, and focus on transaction costs, social history, and legal practicalities. Copyright is granted at what we could call level-0 abstraction, where only specific words and images are covered, along with derivatives that depend precisely on the existence of some previous expressed form. Google any 7 word string in this comment and you probably not find any matches, since all written expression is mathematically unique. Patents are different, they range from the somewhat controversial, as in chemical compounds that are discreet and specific, to the most abstract ideas or notions that are protected by business and software patents. In the latter cases a “right” can’t exist without certain categories of thought being declared property in some government office — the kind of rights scheme that would obtain if story concepts were copyrightable. In those cases there is an obvious libertarian argument for the government staying out of it on philosophical grounds, while the opposing side tends to focus on the utilitarian necessity of incentivizing certain kinds of investment.

    Also, Solveig, you may find this phrase useful the next time you are looking for a pithy post ending.

  • Timon

    This is correct, but it is an illustration of why “IP” is a bad umbrella term, and the reason has to do with the level of abstraction at which a right is granted. For example, for IP skeptics, copyright discussions are almost purely utilitarian, and focus on transaction costs, social history, and legal practicalities. Copyright is granted at what we could call level-0 abstraction, where only specific words and images are covered, along with derivatives that depend precisely on the existence of some previous expressed form. Google any 7 word string in this comment and you probably not find any matches, since all written expression is mathematically unique. Patents are different, they range from the somewhat controversial, as in chemical compounds that are discreet and specific, to the most abstract ideas or notions that are protected by business and software patents. In the latter cases a “right” can’t exist without certain categories of thought being declared property in some government office — the kind of rights scheme that would obtain if story concepts were copyrightable. In those cases there is an obvious libertarian argument for the government staying out of it on philosophical grounds, while the opposing side tends to focus on the utilitarian necessity of incentivizing certain kinds of investment.

    Also, Solveig, you may find this phrase useful the next time you are looking for a pithy post ending.

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