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Intellectual Property: of rocks and ideas

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09/19/2011

Intellectual property is a concept that is inherently flawed. In particular, missing is the absolutism that is central to the ownership of property. And this flaw caused me to drop intellectual property as a requisite attribute of liberty.

The visit

A few weekends ago, my father-in-law came over for a visit. While we sat outside after dinner, he noted an issue he was having with a software package on his computer. He is technical, but not Google. Being from the era when answers were found in the manual or from support staff, he checked the manual and then called the software company’s helpdesk, all without result. He was rightly frustrated. I asked him to explain the problem. I took mental notes of relevant terms and told him I would have an answer in five minutes. A quick Google and a couple of clicks later and I found a message board with the solution. Problem solved.

Pet rocks

My three-year old collects rocks. Nothing special, just any rock he finds interesting. My four-year old occasionally raids the rock bucket, with the expected conflict soon following. My wife and I intervene and once again explain the house rules with respect to property. Theft is theft, regardless of the value of the item stolen.

Ownership of property is absolute. The market value, or any physical attribute (size, shape, beauty, etc), of the item is not a consideration. That is why we enforce the right to property under all circumstances.

The connection

When I discuss property with various folks, no one questions our house rule. Property is property, so to speak. However, when the discussion moves to intellectual property, the absolutism of property rights breaks down. Sure, the pharmaceutical company owns its patent. But the solution to the irritating computer problem that brightened my father-in-law’s evening is too small, too insignificant, to be owned by anyone. Government grants the pharmaceutical company a monopoly while the clever man posting on the message board is out of luck.

So we have a mishmash of laws that protect some forms of intellectual property and ignore of others. And the same person who says that all ideas have an owner has no expectation of owning the idea thus stated. It is crazy.

It is emotional

I understand the desire for a system of IP laws when considered from an emotional point of view. Yes, it seems right that an idea should belong to its owner, especially when the supposed owner is an entity that created a drug to cure a serious illness or a starving writer who devoted his life to the thoughts on the page. However, even sincere emotional arguments do not necessarily lead to valid conclusions.

Reductio ad absurdum

Physical property suffers the reductio ad absurdum challenge without fail – if you can homestead it or trade for it, no matter how small or insignificant the item, you can own it. Even subatomic particles are homesteaded and considered property. This is not to say our legal system adheres to the absolutism of physical property. But that is a flaw in our legal system; a our legal system based on utilitarian ethics and not grounded in the ethics of liberty. However, since defining an ethical system of property rights is our challenge, we do not need to justify the current instantiation of flawed positive rights, etc.

A system of property rights that protects my son’s rocks is valid and ethical. And by adopting it, liberty is enhanced, not harmed. The same cannot be said for intellectual property. A de minimis is implicitly assumed – a threshold that divides ideas that can be owned from those that cannot be owned.

A survey of IP laws shows thresholds that are various and arbitrary, with each area of IP law having its own threshold, or thresholds, for that matter. And these thresholds are, of course, matters of political action. And political action is always an unjustifiable force antithetical to liberty.

Conclusion

Liberty is the area falling outside the realm of political action. Therefore, IP laws, as a product of political action, and political action alone, do not enhance liberty. They harm it

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.

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