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What's Wrong with Theft?

As I noted in Copypats, many non-specialists and proponents of IP erroneously believe that copying is an element of patent infringement--they conceive of the typical patent infringer as some bad guy who knocked off, or "stole," the patentee-inventor's idea. They are usually unaware that proving copying is neither necessary nor sufficient to prove patent infringement. It's not necessary because even an independent inventor can be guilty of patent infringement. It's not sufficient because the patent may be invalid, or the copier may make changes to "design around" the patented invention (which is encouraged by patent policy--that's one reason the patent is published).

But it is common to charge the patent infringer, especially the idea copier, with theft--he stole the idea, it is said. But if we think about standard cases of theft that we all agree are criticizeable, what is it about them that we object to? Is it that the thief now has a bicycle? Or is it that the owner now doesn't have his bicycle?

Of course it is the latter. If you have a bike, or car, or log cabin, or corn crop, and I could gaze at it from afar, blink my eyes, and conjur up a similar bike, car, cabin, or crop for myself, I do not steal your things. But if I take your bike or car from you, or oust you from home and farm, you no longer have the things you formerly possessed and owned. That is the damage done to you by theft. This corresponds nicely to the very nature and function of property rights: the need for them arises when people need to use scarce resources as means to act in the world, and appropriate unowned ones. The scarce nature of these things is such that use by one person excludes that by another; the goods are rivalrous. (More on this in How We Come to Own Ourselves; Defending Argumentation Ethics; Owning Thoughts and Labor.)

But copying or emulating someone else's idea is not "taking" it from them; it is not theft. The originator of a given pattern still has his idea, and is free to use it in guiding his action and using or transforming his own property. This is why all arguments in favor of IP (and reputation rights) ultimately end up falling prey to the notion that there are property rights in the value of property, rather than in its physical integrity. But this view is fallacious, as shown by Hoppe and others.


Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.