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Another Confused Libertarian on Intellectual Property

Another Confused Libertarian on Intellectual Property

Timothy Sandefur is another Libertarian confused about intellectual property – see his article.  He suggests that Adam Mossoff’s article on Natural Copyrights and Ayn Rand’s thoughts on intellectual property are incorrect.  Mossoff and Rand have the better argument.  First of all it is clear that intellectual property rights are consistent with Locke’s view of property rights.  You own yourself and therefore you own the product of your labor mental or physical.

Portuguese Claim to Sea

The argument about the Portuguese claim to the sea is an attempt to condemn Locke by a misapplication of Natural Rights theory.  The Portuguese did not improve the sea.  According to the Portuguese argument when I drive over the road I own the road or if I walk over land I own the land.  Using a misapplication of Natural Rights theory is a red herring argument.

Non-Exclusive Nature

Patents do not keep you from thinking about the invention and in fact it is a purpose of patent law to encourage the dissemination of knowledge associated with inventions so that other inventors can improve upon these inventions.  Patents only restrict you from making a physical version (or threatening to do so – offer for sale).  An infringer of a patent is no longer making a non-exclusive use of the invention when they make it.  They have taken a part of the potential market for the invention.  This market is neither unlimited or non-exclusive.

Your argument about two people having two separate copies of the invention ignores the property right involved in patents.  The property right is not in the physical item.  When you steal my invention by making an unauthorized copy, you have initiated force not the patent holder.  This is similar to me stealing apples from your orchard.  I have not initiated any force against you, it is only when you call the police or come out with your shotgun that force is initiated.

The exclusive nature of real property is illusionary at best.  You only occupy and exclude the space you are presently in.  You do not occupy your whole apple orchard all the time.  If I take an apple from your orchard that you are not presently holding or eating then there is nothing “naturally” exclusive about your ownership of that apple.  If you own more land than you can farm or otherwise take advantage of and I decide to plant crops on that land I have not hurt you.  You have initiated force against me when you kick me off your land and you inhibit productive enterprise.

The non-exclusive nature of intellectual property is a confused argument.  If you are talking about physical exclusion then you should only own real and personal property that you are presently using, which would destroy the concept of  property rights generally.  If you are talking about the legal right to exclude others from using your property, then you have to be consistent with your definition of the legal right involved.  Intellectual property is not about physical ownership, so making a copy of another invention is a clear breach of the property right.

Simultaneous Invention

In your statement about “innocent” simultaneous inventors that, “but because you make it to the patent office first, you get the patent on that thing, and can therefore forbid the other person from making or selling his thing” is wrong.  The US is a first to invent country (at least so far) not a first to file country.  So just because someone beats you to the patent office does not mean they receive the patent.  However, you do make a strong point for why we should not change our patent laws to a first to file system.

More generally, the definition of an inventor is the first person to discover a new invention.  Only the first person adds to the store of human knowledge.  The second person is just clever.  If a person living in India rediscovers Calculus he is not the discoverer of Calculus because he did not add anything to the store of human knowledge.  In addition, there are an infinite number of potential inventions and increases in technology are the only way to increase our standard of living.  As a result, we want people to invent not to copy other people’s inventions.

Fair Use

Copyrights protect the artistic expression of an idea.  They do not protect every component of a written work for example.  Fair use is just a statement of this fact.  So copying a small portion of work is not a violation of the owner’s copyright because you have not taken their expression of the idea.  This is why one of the factors of fair use is how much of the work did you copy.

Intellectual Property and Free Markets

You state, “natural copyright is very dangerous to the free market, in that it proposes to forbid entrepreneurs from legitimate and praiseworthy uses of their liberty.”  Actually, the exact opposite is true.  By undermining intellectual property you are undermining the very basis of property rights and liberty.  The empirical evidence also shows that whenever a government refused to protect intellectual property rights they also do not respect other property rights or the mechanisms of a free market.

Locke’s Natural Rights

Natural rights theory is not only the historical and logical basis for property rights but explains most common law crimes.  The natural rights labor theory of property explains why slavery is immoral.  If you own yourself, then no one else has the right to own you.  It also explains why murder and manslaughter are immoral, why stealing is immoral, why assault and battery are immoral and why we have laws against all these actions.  The natural rights labor theory defines how property should be allocated and how people come into possession of property morally and legally.  The labor theory explains all of our basic criminal law and all of our basic property laws.  What does scarcity explain?  It offers no justification for why slavery, murder, manslaughter, assault and batter and theft are immoral, except that they are inefficient at allocating resources.  Thus, all of these crimes would be allowed if they were efficient at allocating resources.  Scarcity does not explain who has ownership in property or why they should have ownership in property.  It merely explains that private property ownership is an efficient manner in allocating scarce resources.

In science, the theory that has the greatest ability to explain the widest number of facts is considered to be the correct or better theory.  Here the “scarcity” theory of private property requires the additional assumption that it is preferable to have efficient allocation of resources.  However, it fails to explain how the resource should be initially distributed, it does not explain how property law determines ownership and has no power to explain criminal law.  Trading scarcity for the labor theory of property is like trading the theory that “what goes up must come down” for Newton’s Law of gravity.  The fact of the matter is that the proponents of scarcity have confused cause with effect.  A system of private property results in efficient allocation of resource, but it is not the reason for private property – it is the effect of private property.

For more information see Scarcity – Does it Prove Intellectual Property Rights are Unjustified?


  1. How ironic that Timothy Sandefur should write a book entitled “Cornerstone of Liberty: Property Rights in 21st Century America” and yet not recognize that intellectual property is property in the same sense as physical property.

  2. A few questions.

    1) Under the law copyrights and patents last for a limited time. Does a natural rights view assume no limits? A natural rights view would not seem to allow a short term right.

    2) Would language be allowed under natural rights? All words are inventions of individual people by using those words we are benefiting from their invention without the permission of the creators. It seems like language would be wrong or at least very difficult under a natural rights scheme.

    3) Finally, a quick thought experiment. We live in a big universe there is a reasonable chance that a super advanced civilization is out there and has already invented everything we are currently working on. So what do I do as an inventor when I know I am almost certainly violating someone’s rights by creating and profiting these inventions.

  3. Hi Jason,

    Interesting questions:

    1) Logically property rights can only be owned by the living, so no property rights go on forever. But more to your point intellectual property rights are granted (recognized) because of the inventor’s or author’s efforts, if their descendants inherited these rights (forever) they would be receiving an unearned reward. This would be the exact opposite of the reason for intellectual property rights. For more information see Ayn Rand on Intellectual Property

    2) Words are not inventions at least as normally defined. Inventions are for devices or systems that have an objective outcome (repeatable). A word has an objective meaning but a subjective effect. Things, such as books, plays, paintings, that have a subjective result are the province of copyrights. A copyright protects the authors expression it does not protect the underlying ideas. Titles to books do not receive copyrights because they are not considered to embody the author’s artistic expression. Similarly, a word cannot be copyrighted. A title to a book can become a trademark, but most are not trademarks. For instance, the “Dummy” series is a trademark, whereas my book title is not a trademark. You cannot obtain a trademark on the generic use of a word. So inventing a word will generally not give you trademark rights in the word. However, if you invent a word to act solely as a trademark, e.g., EXXON, then you can obtain trademark rights in the word. EXXON is not a word in any language and is completely made up to function as a trademark for an oil company.

    3) Based on your hypothetical you would not be infringing anyone else’s intellectual property. If this other civilization is so much more advanced than us, then anything you invented would have been known to them for generations. Since intellectual property rights are necessarily time limited (as are all property rights – see 1), then the invention would now be in the public domain.

  4. Based on your response to 3 it sounds like you are saying that patents and copyrights benefit the inventor at the expense of the public, but that is fine since eventually the inventor will die and in the long term everything will work out. I mean to be precise I never said the aliens were mortal. Perhaps they also invented a cure for death and can live indefinitely. If they were immortal nothing or very little would be in the public domain.

    As for 2 sure words are not normally but considered inventions, but they seem like a system that has an objective outcome. They are sequences of sounds that elicit specific ideas in the head of the person who hears it. Also if words are not inventions what about other languages such as programming languages?

  5. I do not see how it is at the expense of the public – unless theft is in the public interest. But for the inventor, the invention would not exist.

    Programming languages are just a way of determining a wiring diagram for a general purpose electronic circuit (computer). Electronic circuits are clearly patentable. The purpose of a programming language is not to convey an artistic subjective response in the reader, it is to have an objective response by a computer (general purpose electronic circuit).

  6. [...] John Locke, Lysander Spooner, Ludwig Von Mises, Murray Rothbard, Ayn Rand, L. Neil Schulman, Morris and Linda Tannehill, David Friedman, Richard Epstein…(to be continued) [...]

  7. Thanks very much.
    Have linked you at my blog.

  8. Thank you, sir.

    Well put. Will be marking this blog and linking to relevant posts, thus saving me the labor of reinventing the wheel on this subject.

    Can you please explain why this anti-IP movement has come into being? Can it really be that supposedly sophisticated thinkers cannot tell the different between a monopoly, a patent, a copyright, and IP in general?

    I have brought up this issue several times at libertarian outlets like The Daily Bell and am surprised at how much respect some very poor arguments against IP get.

    My theory is that it is perhaps some kind of astroturf movement in support of some hidden agenda.

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