How Should Libertarians Think About Intellectual Property?

Brink Lindsey, Sasha Moss, Wayne Brough, Eli Dourado, and Nick Gillespie talk patents and copyrights in the digital age.

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How Should Libertarians Think About Intellectual Property?

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Libertarians have long been divided on the subject of intellectual property such as patents and copyright. Does natural law extend to intellectual property rights, just like "real property" rights? Or is IP just another government-granted monopoly that limits freedom?

The Progress Clause of the U.S. Constitution grants Congress authority to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." During the Constitutional Convention, this provision was adopted by an overwhelming vote and with little debate. But IP was much more limited at the nation's founding than it is today.

In fact, copyright terms are now 580 percent longer than at the start of the 19th century and patents are now granted for software, designs, and business methods that don't look anything like the traditional definition of "inventions."

How should libertarians regard the current legal and regulatory framework and does it help or hinder progress in the digital age? And when considering reform, how can policymakers balance the interests of creators while limiting the potential for regulatory capture and industry-driven cronyism?

On October 8, 2015, R Street and Reason co-hosted a discussion on the pitfalls and merits of intellectual property at Reason's DC offices. Joining the panel was Brink Lindsey of the Cato Institute, Wayne Brough of FreedomWorks, Eli Dourado of the Mercatus Center, and Sasha Moss of R Street Institute. The discussion was moderated by Reason's Nick Gillespie.

Related: Check out Nick Gillespie and Matt Welch's take on IP during "What's Your Take on IP & Net Neutrality?" during Ask a Libertarian day.

Edited by Joshua Swain. Cameras by Swain and Todd Krainin.

About 26 minutes.

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Comments

[Just say Nikki]

Intellectual property is theft.

[Sapient Mulch]

That's a good thought. Give it to me.

[Scarecrow & WoodChipper Repair]

Hey! Give it back so I can steal it too!

[IceTrey]

Reverse engineer it.

[Sapient Mulch]

Theft of property is intellectual? Is this the lost progressive codex!!??

[Sanjuro Tsubaki]

Or else!

[Fist of Etiquette]

Here's a good rule of thumb: It's not property if I can't spill my seed on it.

[BiPolarMoment]

This says more about your sex life than perhaps you intended, FoE.

[BiPolarMoment]

Does a mail-order bride count as an exception?

[Chipper Morning Wood]

It also says too much about his size. Speaking of which, my rule of baby-arm is that, in general, "mo' property rights mo' betta."

[Sanjuro Tsubaki]

If you're jacking off on your front porch, they're going to arrest you anyway.

[tbeard524]

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[Chipper Morning Wood]

Is this the new rentboy.com?

[Sanjuro Tsubaki]

They should think for themselves.

[Outside the Box]

"Does natural law":

I stopped.

[Edwin]

the same way they think about the concept of land as property

they're both pseduo-valid, but should be severely limited, because fundamentally they don't exist as a natural right and are outside of the NAP, and yet tons of libertarians accept them out of convenience/convention and often defend them with utilitarianism ("it creates an incentive!")

[Edwin]

IOW,

the idea that just because someone thought of something that we should give them a monopoly on that thing for a super long time as a way to incentivize invention is just as ludicrous as the idea that we should let someone dominate and exclude every possible use of land just because they built the initial house or farm as a way to incentivize initial land development

[ThomasD]

...that to preserve these rights governments are instituted among men..."

So long as there is any right to property property must also be defined. So, as with all aspects of government, the Devil is in the details.

I'm ok with patents and copyrights of truly limited duration much the same as I accept that there will be no true allodial titles to land either. Government is always a bargain.

[ThomasD]

What I'm not ok with alt text fail, or the LACK OF AN EDIT BUTTON.

Twenty first Century my ass.

[The Master McMonocle]

Patent rights are as much a natural right as carbon credits. They're created by regulation and transferred as a property right. With most property rights, problems arise with transfer, as the actual boundaries are fairly clear. Land is kinda a grey area; it's scarce, but still relies on public registers and surveys as to the actual boundaries. Patent problems arise almost entirely due to boundaries and the great uncertainty in determining them. Even if you think patent rights are natural rights, property rights don't mean much if you can't define them.

The only utility patents that are in the realm of workable are pharmaceutical and chemical composition patents. They tend to have clearer boundaries, as their claims rely on formulas and their enablement on working examples. They also tend to be in fields where research is more linear and investing in research pays off more proportionately than, say, software. So development can be incentivized. The high capital costs keep the trolls out, for the most part. The patents tend to be a bit better vetted; most examiners just search patent literature, while those in chemical and pharma arts search publications. James Bessen's book Patent Failure is a nice utilitarian look at the patent system's problems, and discusses some of these points more.

[The Master McMonocle]

Eli had a good point at the end about 3D printers. With the exception of the criminality aspect, I don't really consider copyright to be a big deal. Copyright infringers are small and distributed, and as Nick pointed out, companies like Spotify have found a way to work within the system. Culture suffers, but livelihood doesn't. Patent infringers, on the other hand, tend to be larger and more concentrated, so they're easier to discover and are worth going after. 3D printing and other distributed manufacturing technologies could change patent infringement to be a bit more like copyright infringement, at least for certain products, in that it's these small, numerous, distributed parties who infringe.

[CatoTheYounger]

Patents have always been used as a means for corporations to destroy their competition. While I am undecided on complete abolishment, we definitely need patent reform.

[gphx]

The title should be changed. It may be great but I don't watch things which tell me 'How you should think' or 'What you need to know'. Too authoritarian. I'll decide that tyvm.

[Todd E]

The panel needed an "abolitionist" as they put it.

At most, the way technology is today, patents should be for something like 5 years max. Plenty of time to recoup research costs. But I think that they shouldn't exist at all, from both a moral, and a *shutter* utilitarian point of view.

This is especially true for things like copyrights. Shakespeare wrote all of his work before copyrights.

I was thinking, from a market perspective, something that could happen is that a company/organization could get started to buy parents for things like pharmaceuticals, and put them in the public domain. I think this is something that a lot of people would be willing to give to as a charity. It would be a win-win situation, as the inventor could get a lump sum payment up front, and then innovation wouldn't be hampered, and productive effort wouldn't be wasted on litigation, e.g. the patent trolls the panel mentioned.

[flashgordon]

Wow, the new video format works really well. HD and good audio. Nice improvement.