Sheldon Richman’s Takedown of Patent and Copyright: Patent Nonsense

by Stephan Kinsella on January 19, 2012

Sheldon Richman has a really fantastic, concise, well-written and tightly reasoned essay in The American Conservative explaining why intellectual property — patent and copyright — is illegitimate, and “enforces a monopoly over the mind.” From the Jan. 1, 2012 issue:

Intellectual property enforces a monopoly over the mind.By Sheldon Richman | January 18, 2012

Staunch advocates of private property might be expected to support “intellectual property rights”—patents and copyrights—but these days that expectation is more than likely to be wrong. IP has come in for a thrashing from libertarians, among others, in the last few years, and it may be all over but the funeral.

The issue can be viewed from three vantage points: moral, economic, and political. The pro-IP lobby tends to conflate the first two, moving back and forth between assertions about justice and economic incentives. Their case is something of a moving target, so let’s break it down.

The moral claim is that an inventor has an exclusive, enforceable right to his useful, novel application of an idea, while an author or composer has such a right to his original work or expression. IP specialists insist that what is owned is not an idea per se, but it’s hard to make sense of that assertion since an application or expression of an idea is itself an idea. IP really is about the ownership of ideas, and therein lies the problem.

Why should an inventor or author have an exclusive right, whether in perpetuity or for a finite period? Ayn Rand, the late novelist-philosopher who vigorously defended intellectual property, replied, “Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind. Every type of productive work involves a combination of mental and physical effort…” Patent and copyright laws “protect the mind’s contribution in its purest form.” In this view, all property is ultimately intellectual property. As the 19th-century free-market anarchist Lysander Spooner wrote, an individual’s “right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with his right of property in material things … no distinction of principle, exists between the two cases.” (Not all 19th- and 20th-century libertarians agreed—a notable counterexample being the individualist anarchist Benjamin Tucker, who thought patents were a pillar of plutocracy.)

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