On The Shape of the Libertarian “IP” Debate

by on April 30, 2008 · 26 comments

Over at Larry Lessig’s blog, David Friedman has a really interesting comment about libertarian attitudes toward patent and copyright law (I’m going to relax my usual rule about the phrase “IP” because of the way Friedman and Lessig have framed it):

You write: ” There is a divide in the libertarian camp about IP extremism.”

I think that understates the case. There has long been a divide among libertarians about IP itself. Some see it as the purest and most morally defensible form of property, on the grounds that it is produced by the human mind without using any unproduced resources, such as land, which one might have difficulty justifying the ownership of. Others see it as a clear violation of rights, on the grounds that if something such as a book belongs to me, I have the right to do with it as I will.

This is an accurate summary of the state of play among philosophically-minded libertarian generalists. Anybody’s who’s spent a lot of time in libertarian circles can almost recite the competing arguments in their sleep. Frankly, they start to seem kind of vacuous after a while.

This is most obvious in the anti-“IP” camp. If you believe that copyright and patent law are nothing but infringements on peoples’ natural rights, then you have a simple, compelling answer to every question in this area of law. You’re also going to be completely left out of the practical discussions of copyright and patent reform. Because if all copyright and patent monopolies are illegitimate, there’s no obvious way to tell which ones are the most illegitimate. Or to put it a different way, if you’re an “IP” abolitionist and you want to participate in contemporary policy debates, you need to have an additional set of principles that tells you which parts of the copyright and patent systems to reform first, and these principles are ultimately going to do more to drive your policy choices than the principled opposition to government monopolies in all of their forms.

But if they’re consistent, their ideological opponents face almost the same problem. Because if copyright and patent rights are just like ordinary property rights, then it’s hard to see where the state gets off in placing the many limits it places on the exercise of these rights. In the ideal “pro-IP” world, copyrights and patents would be perpetual, with no fair use exception, no first sale doctrine, no subject matter limits, etc. In this ideal world, I would have to pay royalties to Shakespeare and Edison’s descendants. Such a system would be insane, and quite possibly incoherent. But more to the point, it would be very different from the copyright and patent systems we have now, with its plethora of limitations and pragmatic, politically-driven carve-outs for various special interests. Which means the natural-rights-oriented “IP” supporter would also need a secondary set of principles to evaluate the present-day copyright and patent systems and inform his thought as to how to reform the system to more closely approximate the ideal of absolute, perpetual protection for copyrights and patents.

I think this is why among libertarians who actually spend a lot of time looking at the details of copyright and patent law, rather than simply arguing about it with friends at the bar, tend to have a surprising degree of agreement about the underlying philosophical issues. Virtually all the libertarian-minded copyright and patent scholars I’ve read, ranging from Richard Epstein and Jim DeLong to David Levine, tend to converge on a utilitarian/consequentialist framework for analyzing copyright and patent issues. On this view, the function of property rights is to promote wealth creation, and it’s an empirical question whether (and to what extent) various “IP” rights promote the creation of wealth.

Within this philosophical framework, I think, people tend to break down into roughly three camps. Maximalists like Epstein and DeLong generally think that longer, broader, and more strictly enforced copyright and patent rights create better incentives for innovation and creativity. Abolitionists like Levine think the evidence shows little or no positive benefit from copyright and patent monopolies. Finally, there’s a middle group, which I think includes me and most of the people who have been defending Lessig in the comments section here, who conceive copyright and patent law as a balance between the need to incentivize the creation of new works and the value of having them widely distributed.

This third camp has grown in recent years in reaction to a series of rather dramatic expansions of the copyright and patent systems. The biggest arguments these days are not between “pro-IP” and “anti-IP” thinkers, but between those, like me, who defend the traditional conception of balanced copyright and patent law, and the folks Lessig calls extremists, who have never seen an expansion of copyright and patent law they didn’t like.

It’s completely misleading to lump traditionalists like me together with abolitionists like Levine. I have a lot of respect for Levine’s work, but I ultimately don’t think he makes a strong enough argument to justify tossing out systems that have, for the most part, served us well for two centuries. I think our patent and copyright systems can and should be fixed. I spend so much of my time arguing with the Epsteins and Sydnors of the world only because the copyright and patent laws have changed so much over the last couple of decades. If we succeed in rolling back those harmful changes, then I expect I’ll find myself back on the side of Epstein and DeLong arguing that the copyright and patent systems, for all their flaws, create necessary incentives for the production of inventions and creative works.

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