Go to about 8:00-11:09 in the video below to hear David Friedman, in a Mises Brasil lecture, talking about copyright under anarchy. He posits an anarchist society and envisions a case where a single author and single customer/consumer have a dispute about whether the author should have copyright–the author wants it, the consumer does not. Around 8:51 or so he says that if it was just two people the judge should ask, is it worth more to the consumer to have there be no copyright, or more to the author to have copyright? And whichever one it is “worth more” to, you decide in his favor–and, at 9:07, Friedman says that would be the right answer. No, it’s not, in my view. The right answer is for the judge to refuse the author’s request for a monopoly, since the judge ought to be doing justice by respecting property rights, and the grant of a monopoly is simply a way of transferring the customer’s property (say, his money) to the author, or property of competitors (their printing presses) to the author.
Later Friedman talks a lot about whether the rules chosen give the right “incentives” to authors, and so on. This is the “wealth maximization” approach popular among the “law and economics” crowd, a utilitarian approach I believe is methodologically and morally flawed. See Hoppe’s criticism of similar “Coasean” reasoning in the Chicago Diversions section of this article.
He also assumes that if there is copyright, it sets up an incentive so that authors write more books; but there is good reason to think a monetary incentive–much less the marginal monetary incentive provided by the copyright monopoly–is the main reason, or even a main reason, why many or most authors write. That is, most authors write for reasons other than just money.
I cannot recall what Friedman’s basic position on IP is, but in my view it is clear that neither copyright nor patent–which are state-granted monopolies that arose from censorship and favoritism–could arise in a free society. (To be clear, I greatly respect and like Friedman, and his Machinery of Freedom helped convert me to anarchism, but I have never liked the utilitarian, law and economics approach. Likewise with his father, Milton Friedman, whose Capitalism and Freedom was very influential to me in my early libertarian learning, though I disagree with his positivism and his approach to normative reasoning.)
I believe that a few months back I saw another part of Friedman’s talk at Mises Brasil where he talked more about IP–perhaps in Q&A?–but I cannot find it now. If anyone knows where it is, or any other salient papers or presentations by Friedman on IP, let me know and I can update this post.
Update: I critique Friedman’s law & economics “incentives” approach to property rights and the IP issue in my post Andrew Torrance: Patents and the Regress of Useful Arts.