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.
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