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Richard Epstein on "The Structural Unity of Real and Intellectual Property"

October 4, 2006

New from Law professor Richard Epstein: The Structural Unity of Real and Intellectual Property (video). Epstein argues that there are many similarities between physical property and "non-physical" property (i.e, intellectual property). Epstein identifies four principles that create a basic framework for understanding physical property law. He concluded in his speech that all four can be applied to intellectual property with the main difference being transfer of such property is only absolute in the case of physical property.

I think Epstein confuses positive law with justification. Of course IP "can" be enforced. But recognzing crucial role of scarcity in specifying property rights makes it clear that any enforcement of IP is always done in the physical realm—enFORCEment, get it? Enforcing IP in the physical realm in effect means a claim to IP is a claim to physical property. Property that is already owned. Property whose ownership is justified—in libertarian terms—by the first possession of that piece of property by the owner or an ancestor in title—the homesteader or someone who contracts with him. Granting a right to control that resource to an IP creator simply means transferring rights in an already-owned thing to a non-homesteader, non-contractor. We libertarians call this theft, trespass, confiscation, socialism, or redistribution of wealth. Showing that modern positivistic legal systems can "deal with" IP does not show it is justified.

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