The Libertarian Case Against Intellectual Property Rights

Lance's picture
Submitted by Lance on Tue, 2007-08-07 02:23

Is this a legitimate argument against copyrights and patents? I'm not sold on the author's argument against copyrights, but his case against patents caught my eye and left me wondering:

"Another problem with patents is that, when it comes to laws of nature, even fairly specific ones, the odds are quite good that two people, working independently but drawing on the same background of research, may come up with the same invention (discovery) independently. Yet patent law will arbitrarily grant exclusive rights to the inventor who reaches the patent office first; the second inventor, despite having developed the idea on his own, will be forbidden to market his invention.

Ayn Rand attempts to rebut this objection:
"As an objection to the patent laws, some people cite the fact that two inventors may work independently for years on the same invention, but one will beat the other to the patent office by an hour or a day and will acquire an exclusive monopoly, while the loser's work will then be totally wasted. This type of objection is based on the error of equating the potential with the actual. The fact that a man might have been first, does not alter the fact that he wasn't. Since the issue is one of commercial rights, the loser in a case of that kind has to accept the fact that in seeking to trade with others he must face the possibility of a competitor winning the race, which is true of all types of competition."
(Ayn Rand, Capitalism: The Unknown Ideal (New York: New American Library, 1967), p. 133.)

But this reply will not do. Rand is suggesting that the competition to get to the patent office first is like any other kind of commercial competition. For example, suppose you and I are competing for the same job, and you happen to get hired simply because you got to the employer before I did. In that case, the fact that I might have gotten there first does not give me any rightful claim to the job. But that is because I have no right to the job in the first place. And once you get the job, your rightful claim to that job depends solely on the fact that your employer chose to hire you.

In the case of patents, however, the story is supposed to be different. The basis of an inventor's claim to a patent on X is supposedly the fact that he has invented X. (Otherwise, why not offer patent rights over X to anyone who stumbles into the patent office, regardless of whether they've ever even heard of X?) Registering one's invention with the patent office is supposed to record one's right, not to create it. Hence it follows that the person who arrives at the patent office second has just as much right as the one who arrives first — and this is surely a reductio ad absurdum of the whole notion of patents."

(Before I get flamed, I am aware that this is a so called libertarian case against IP rights, and not necessarily an objectivist one.)

edit for clarity:This is a genuine question put forth in good faith, and not an "Aha, prove me wrong!" To put the question more accurately: Do the authors arguments hold water from an objectivist view? If not, what are the mistakes or misjudgments?

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Some agreement

SovereignThinker's picture

I do agree with you that man is not entirely like a hunter-gatherer. We do have the ability to both record the laws of nature and to anticipate what might happen if we reorganize certain physical phenomenon in novel ways. I can understand that a person who spends a great deal of time working on something would want to be able to do as they wished with that thing; however, if you look at an inventor, he is not entirely responsible for his invention. Part of his invention comes from the laws of nature, for instance, the ability to make fire comes directly from a natural phenomenon, the first fire starter should not be able to patent fire starting thereby preventing any other human from ever starting a fire. Furthermore, certain inventions only become possible with the creation of certain other novel inventions. The person who created the first diode should not be able to patent it, because it is a fairly simple invention once silicon manufacturing reached a particular level of efficiency. Considered further, silicon manufacture should not be patentable, because even though silicon is hardly ever found in nature, it is a natural element which has properties which must be discovered, not invented (*cough* hunter-gatherer), just because tools were needed to discover those things, does not mean that the person is entirely responsible for their reality. To look at a hunter, they must fashion a spear, but still, they kill something else for their sustenance, essentially "stealing" an outside resource from "nature."

If you look further into it, to use Ayn's formula, when patenting an object and protecting it, you must consider who is going to protect you by what means from whom and what the moral implications of those events actually are. If a government is to protect you from potential competitors by use of guns, courts and bureaucrats, then you must naturally assume that a government bears within itself the rightful authority to strip you of your freedoms in the interest of protecting another person from your potential competition. By freedom, I mean the freedom to reverse engineer, which is man's essential nature, discovery... If a person truly wishes to keep information from the world, then they best not share it. When putting something up for trade or gift, they are essentially allowing other people to know of its existence. Once known, our human nature will necessarily kick in and we will naturally wish to better understand such a device (well, at least some of us will, I still do see a mob of zombies wandering everywhere that seem to be happily oblivious to the causes of things, but I cannot relate much to them).

Upon doing that, our minds will begin to think of a vast assortment of ways that we might use such a device to improve our lives. For a government to force us not to better our lives by means of peacefully employing our minds and property to better our own end is in my mind tyranny. Upon being taught basic circuitry, I was impressed with the number of gadgets I could avoid buying and instead make for myself. Had the electronics industry had been as tyrannical as the computer and biotechnology industries presently are, we would still be communicating via morse code. It was the dispersal of the technology and the cultivation of a wide assortment of circuits and logic gates (many of which developed openly by hobbyist communities) which has allowed for our modern realization of the electronics age.

It is collaboration and a community of education, exploration and implementation which leads humankind forward, not monopolistic secrecy and government tyranny.

True, true, there have been several industrialists throughout our history who have in secret developed some gem which might make them a fortune, but the vast majority of inventions have taken place in backyards, university labs, libraries, and hobbyist conventions. Humorously enough, most of these never get a patent. Instead, they are freely and openly distributed. It is the rare inventions controlled largely by corporations which are patented, and often they are a true discovery as opposed to an invention. Just look at how many proteins are being patented. Bastards. They didn't lift a single finger to design those proteins, nor do they even pretend to. Instead, they look to nature to do their inventing for them, and then they take all of the credit. Human glory? Sounds much more like human cowardice, pettiness and thievery to me.

Roderick Long's analysis

Ptgymatic's picture

has some weaknesses. For one, the second-place inventor is not left with nothing. He has the knowledge he acquired. He has the ability to produce the invention for his own use.

Further, if there were no patent protection at all, his being the second to get to market would be of little reward, as third, fourth, etc. would be immediately on the scene, having copied the first inventor's design. I suspect the sense of injustice to the runner-up inventor comes from the assumption that he is being cheated out of the very exclusivity in commercial exploitation of his intellectual work that he wishes to deny the first inventor. But unless it goes to the first inventor, it goes to no-one, not even others who did the intellectual work, rather than just copying the product.

The argument that it is nature that is, actually, responsible for the inventions, and the inventor is merely a hunter-gatherer of her secrets, is preposterous. Nature makes what nature makes. What man makes nature didn't. Man lives by his brains, by changing natural conditions and situations. That argument is an attempt to deprive man of his fundamental glory!

The fact that we cannot, or have not changed every feature of nature is irrelevant. You don't have to have created the raw materials in order to have created what you made from them. It is not necessary to create de novo.

The arguments against IP smack of the "green" mentality that entirely discards man's context when arguing what man should do.


The physical universe has a

SovereignThinker's picture

The physical universe has a law of conservation which ultimately means that resources are limited to a certain tangible number. It is from this reality that our ideas of property emerged. If reality were much different, our understanding of property might also have emerged much differently.

Looking at physical property, it is limited to a certain maximum number, when raw resources are used to manufacture a thing, necessarily, those resources cannot also be made to manufacture an alternative thing simultaneously, when a person makes a thing, it bears a unique identity which once removed can never be perfectly replaced, also if removed, a thing is thence denied from its original owner.

Looking at intellectual property, it is unlimited, any number of thinking minds or recording devices may contain the same information; it is able to be pluripotent, meaning that more than one tangible inscription might be present in a given piece of data, while a table is just a table, a communique can be many things, interpreted in many ways, and even confused as unintelligible by the uninitiated. Just look at how long it has taken us to figure out that other higher mammals and certain species of squid might actually be "talking." When a person comes up with an idea, it does not bear a unique identity except for in the manner in which it is communicated, meaning that a person is not going to explain their idea the very same way each time. This is untrue for works of fiction, art, or design, which do have a unique identity and are produced the very same way each time. In the case of copyright infringement; however, it is not a theft so much as it is a fraud. Instead, instructions have a necessary understanding of nature which must preexist their formulation. It is nature which has allowed for their potential and we are merely cartographers of nature. Furthermore, when information is copied from one person or device to another, it is not deprived from its original owner. In my mind intellectual property is fundamentally different than physical property and should be treated as such.

The world I envision: no control from above. The way intellectual property would be handled: a trade secret is your only competitive protection, once another has discovered how to do what you have done, then you must compete with them. If someone uses your trademark, specific language, or artistic design to fool people into thinking that they were actually buying your product, then a civil case could be made for fraud and impersonation, but not for theft. If they merely discovered a piece of information that only you had previously known, well, then in the terms of my elementary school colleagues, "tough titty," or as our modern society might say, "such is life."

Much obliged for your

Lance's picture

Much obliged for your replies Michael and Aaron. The links you provided and subsequent references in those threads and articles provided a lot of insight.

Regarding the nature of copyright duration, it seems to me that copyright should, when seen as an extension of the right to own property, extend at least the duration of the life of the author/creator. But then copyright is often transferred, by sale, to another individual or company. It all gets quite murky then. A recent study apparently found that, 'mathematically', the optimum copyright period is 14 years

Regarding patents, well, I'm going to have to do a lot more reading. It really appears to me that the patent system, as currently implemented, is incompatible with Objectivism. If I have an idea and the means to implement it, only to discover that someone else has registered that idea as a patent, I then don't have the right to produce and market the implementation of my idea? Bugger that! The commercial competition should be in the market place, not the race to the patent office.

Disingenuous, as usual

Michael Moeller's picture

"Ignorant flamers"? Hmmmm. Read the thread and see my explanation of copyright law, considering I am an IP law student. Then check out Aaron's reasoning based on "probablities"--a combination of the fallacy of the stolen concept and question begging. He also seems to think copyright duration is "arbitrary" ("why 100 years over life + 70", he asks?), indicating he has nary a clue about the arguments for duration. Yup, he knows what he is talking about.


Michael Moeller's picture

I recommend a recent thread on The Forum for a good insight into the defense of IP.

Notice in Dr. Long's analysis, the "right" to a job is a false analogy. There is no such right, whether one is the first person to interview or the thousandth, its entirely up to the owner of the business. In contrast, there is a right to the product of your mind and your effort. Imagine what would happen if a pharmaceutical company--after countless years of research and hundreds of millions in investment--another company came along bought the drug and copied the formula. After all, some "patterns" exist that don't make it their property, so why not allow outright theft? Some incentive that would be to invest in creating new, life-saving drugs.

Secondly, Dr. Long's that it is no less a use of natural laws to create a battery--well, of course!! What else could one use!! Its a failure to distinguish between the discovery of natural laws and the practical implementation thereof in the form of a useful invention. A battery does not simply exist in nature, it has to be created by the mind and effort of the inventor--i.e. it is the metaphysical vs. the man-made.

Consider the newest "battery" of the future (i.e. fuel cells) whereby companies are investing billions. Ask youself, why would they do this if it could simply be ripped off once it enters the market? Alleged defenders of capitalism sanctioning the wholesale theft of IP during the Mind Economy--gotta love that.


Case in point concerning

Aaron's picture

Case in point concerning ignorant flamers. Anyway Lance, if you have any questions about what I actually said or want to discuss the ideas involved around IP in general I'd be happy to.


Michael Moeller's picture

Yes, I do recommend the ROR thread that Aaron cited. You can see the lame attacks given on IP by anarcho's and their fellow travelers. Consider that Aaron regarded this as one of Rand's "truly ignorant moments", while denying IP protection based on some mush about "patterns"; and at the same time trying to defend copyright based on "probabilities". Get a good read of that stuff--its a hoot.

'Intellectual property'

Aaron's picture

'Intellectual property' differs from tangible or even relatively easily addressed intangible property (e.g. airwaves) in being reproducible patterns that lack the exclusivity of other property. I think the correct way to address this is from the ground up - a definition of property that can encompass what if anything related to copyrights and patents are property, and apply concepts of property rights from there. Unfortunately, I haven't seen Objectivists or other libertarians, Rand included, use this approach. Instead there is often a pragmatic defense of the status-quo or something near it. Rand's own 'Patents and Copyrights' essay I see as one of her weakest works.

I see the value in somehow treating reproducible patterns as property, but there are many details to be resolved. The best works I've seen toward this are an article on NoodleFood by Greg Perkins, addressing that critique, and some ideas in a RebirthOfReason thread several months ago. The RoR thread I entered as devil's advocate on non-IP side, but wished to explore the ideas and get some good responses. Though I picked up some ignorant flamers, there were some very relevant and good points by Steve Wolfer and MSK. I don't consider these all thorough and starting by defining property to encompass IP, but I think them a good start, especially concerning copyrights.

I think in the end copyrights could be well-justified even in a form rather similar to now - though then if they are property there would have to be something more than an arbitrary utilitarian compromise to why they would expire, unlike other property rights. Since patents are much closer to discovery than creation, and as you pointed out possess a serious concern for independent creation that copyrights do not (and which Rand disappointingly dismissed), I think that any ground-up derivation of them would be different and much more limited than the status quo. In any case, I don't think abandoning entirely the concept of IP is warranted - but there are many questions and details to be worked through to have a solid Objectivist approach to it.

"Laws of nature come in

Lance's picture

"Laws of nature come in varying degrees of generality and specificity; if it is a law of nature that copper conducts electricity, it is no less a law of nature that this much copper, arranged in this configuration, with these other materials arranged so, makes a workable battery."

Why then, morally, should an inventor be granted the right to monopolise on that implementation? If an inventor has put together a collection of materials, in such a way that, in accordance with the laws of physics, they behave in a certain manner and achieve a specific task, why is it wrong for a person who has seen that implementation and acquired the information to then implement and market it themselves?

Don't get me wrong, I'm all for the innovators and producers getting their due. But once that information is out there, and accessible by other people, surely that's when commercial competition takes over. The reward for the inventor is that he is the first on the market. From there on out it's who is making the better product or marketing it the best. Yes, the inventor created the idea, but is the idea the fruit of his labour(and thereby his property) or is the end product the fruit of his labour and the implementation of his ideas(and thereby his property)?

Edit: I've just re-read my last sentence and even I am finding it unintelligible.
What I am trying to say is: Surely it is his end product that is his property, not the idea. By all means he should be commended and congratulated and held in high regard if it was a particularly brilliant idea. But can an idea, if an idea is just an implementation of the laws of physics, be regarded as property?

This is a

Elijah Lineberry's picture

great topic to debate/discuss, Lance.

I am all in favour of Patents and Intellectual Property Rights.

The idea of two people inventing the same thing at the same time and it being a matter of who gets to the Patent Office first, whilst valid, is very uncommon.
(Life is simply not that cut and dried)

A reason for being in favour of such rights is that an inventor may have spent years, and a great deal of money, inventing [whatever] and it is only right and proper he should gain financial benefit from his idea once he cracks it.

To the victor the spoils, is my attitude.

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