[From the Mises Blog; archived comments below. I also discuss this issue in Legal Foundations of a Free Society (2023), chapter 15, “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” Part IV.B. See also the discussion about latecomers in Property Title Records and Insurance in a Free Society.]
As I noted in AIP, “ownership of an idea, or ideal object, effectively gives the IP owners a property right in every physical embodiment of that work or invention.”
It occurred to me the other day that the best way to classify the legal nature of intellectual property rights such as patent and copyright is the civil law doctrine of negative servitudes (easements). Patent and copyright permit the holder of these rights to prohibit certain uses of their own property. For example, in the case of patents, NTP, by virtue of its patents, could prohibit RIM from making Blackberry smartphones (using its own property, even its own designs)–and could use this veto-right to extract $600M from RIM to permit RIM to use its own property as it wanted to. And Genzyme can prevent competitors from making a drug similar to Fabrazyme, because of its patent monopoly (because it’s a life-saving drug in short supply, this is helping to kill people). In the case of copyright, for example, J.D. Salinger, author of Catcher in the Rye, convinced U.S. courts to ban the publication of a novel called 60 Years Later: Coming Through the Rye.” And in Canada, when a grocery store in Canada mistakenly sold 14 copies of a new Harry Potter book a few days before its official release, a judge “ordered customers not to talk about the book, copy it, sell it or even read it before it is officially released at 12:01 a.m. July 16″ (on both cases, see Atlas Hefts: The Sequel!).
In all these cases, the patent or copyright holder obviously has a legal veto over certain uses others may make of their own property (their smartphones, their bodies, their paper and ink, their books).
This is strikingly similar to what is called a negative servitude in civil law jurisdictions such as Louisiana, and to what is called a negative or appurtenant easement in the common law. See the definitions below, taken from my Louisiana Civil Law Dictionary (with Gregory Rome, forthcoming 2011, Quid Pro Books) (entries to the Louisiana Civil Code articles cited below can be found online here):
Negative servitude. A predial servitude “impos[ing] on the owner of the servient estate the duty to abstain from doing something on his estate.” La. C.C. art. 706.
Predial servitude. A “charge on a servient estate for the benefit of a dominant estate.” La. C.C. art. 646. The two estates must be owned by different owners. Predial servitudes are either apparent or nonapparent. Similar to an appurtenant easement at common law.
Servient estate. The land burdened by a predial servitude. See La. C.C. art. 646.
Apparent servitude. A predial servitude that is perceivable by “exterior signs, works, or constructions,” e.g., a road or a window in a common wall. La. C.C. art. 707.
Nonapparent servitude. A predial servitude without any outward sign of its existence, e.g., building restrictions. La. C.C. art. 707.
Conventional servitude. A servitude established by contract. See La. C.C. art. 654.
Personal servitude. “A charge on a thing for the benefit of a person.” La. C.C. art. 534. The three major personal servitudes are usufruct, habitation, and rights of use.
The common law concept of appurtenant easement is similar. It’s defined at law.com as follows:
appurtenant easement: adj. pertaining to something that attaches. In real property law this describes any right or restriction which goes with that property, such as an easement to gain access across the neighbor’s parcel, or a covenant (agreement) against blocking the neighbor’s view. Thus, there are references to appurtenant easement or appurtenant covenant.
The common law equivalent of a negative servitude would be be a negative easement (like a restrictive covenant).
These legal concepts apply to immovable property or realty such as land, but the essence is that a negative easement gives the owner of one estate the right to force the owner of the servient estate to abstain from doing something. Such property rights are perfectly legitimate if established voluntarily, by convention or agreement (see La. C.C. art. 708). But it is obvious that giving someone a negative servitude would be a taking of some of the property rights of the owner of the servient estate–a redistribution of property. If B gets a veto right over how A uses his property, this is legitimate only if A voluntarily agrees to it.
Now the parallels between patent and copyright and negative servitudes should be obvious. The concept does not apply exactly: first, negative servitudes apply to land (immovable or realty), not movable property or personalty, while patent and copyright apply to all types of corporeal property: to how one may use his immovable property (land and factories) and well as movable property (computer, paper, and even one’s own body). Further, while a negative servitude is a predial servitude that gives the veto right to whoever owns a given tract of land known as the dominant estate, patent and copyright give the veto right to a designated IP holder; so in this respect, patent and copyright are more like a personal than a predial servitude. The positive law does not have an exact parallel to categorize IP in terms of servitudes precisely because the state grants IP rights and considers them valid, and to treat them as servitudes would make it obvious that they are illegitimate since they are not voluntarily agreed to.
Finally, it is also clear that IP is more like a nonapparent than an apparent servitude since there is no outward sign (on one’s body or property) that one is unable to use it in ways prohibited by the holder of the patent or copyright.
The best way, then, to categorize patent and copyright legally would be to view them as nonapparent negative personal servitudes: a nonapparent charge on a servient estate (that is, the land, personal property, or body of some person) for the benefit of the holder of a patent or copyright, where the charge imposes on the owner of the servient estate the duty to abstain from doing something on or with his property/estate.
In other words, it is quite clear that patent and copyright divest owners of property (and self-owners of their bodies) of some of their property rights by assigning to IP holders a negative personal servitude that was never purchased by the holder or contractually or voluntarily sold by the original owner. This helps make it clear that IP robs people of property rights.
[Update: Unlike normal negative servitudes, which are contractually granted by the owner of the burdened or servient estate, and which are thus consensual, the negative servitudes created by IP are not granted by the consent of the owner of the servient estate, and thus they may be more fully classified as nonapparent, non-consensual negative servitudes. They are also incorporeal movables. See Are Ideas Movable or Immovable?.
See also Emory Washburn, A Treatise on the American Law of Easements and Servitudes, 2nd ed. (Washington: BeardBooks, 2000 ), discussing a case which held a negative easement or servitude “to be an incorporeal hereditament, the right to title to which could only be acquired by a grant or deed under seal, or by prescription.” P. 18, discussing Pitkin v. Long Island R.R. Co., 2 Barb. Ch. 221, 231.]
[Update: In the English common law, patents are apparently classified as a chose in action. See Peter Drahos, A Philosophy of Intellectual Property (Ashgate, 1996), p. 35 n.26, citing In re Heath’s Patent , W.N. 137 [56 Sol Jo 538, 29 RPC 389]; also W. S. Holdsworth, “The History of the Treatment of ‘Choses’ in Action by the Common Law,” Harv. L. Rev. 33, no. 8 (June 1920): 997–1030. In Heath
You may take a Vesting Order. … The nature of Patent rights has been discussed more than once when it has arisen on the question of patented articles being seized by the Sheriff. Lord Herschell said in Steers v. Rogers (ubi supra) ;—”What is the right which a patentee has, or patentees have? It has been spoken of as though a patent right were a chattel, or analogous to a chattel. The truth is that Letters Patent do not confer upon him a right to manufacture according to his invention. That is a right which he would equally effectively have if there were no Letters Patent at all—only in that case all the world would equally have the right. What the Letters Patent confer is the right to exclude others from manufacturing in a particular way, and using a particular invention.” In my opinion a patentee’s right is a chose in action, and entirely distinct from the right of property in a chattel; therefore I make the Vesting Order as asked. ]
See also Emory Washburn, A Treatise on the American Law of Easements and Servitudes, 2nd ed. (Washington: BeardBooks, 2000 ), discussing a case which held a negative easement or servitude “to be an incorporeal hereditament, the right to title to which could only be acquired by a grant or deed under seal, or by prescription.” P. 18, discussing Pitkin v. Long Island R.R. Co., 2 Barb. Ch. 221, 231. What is of note here is that the court and the author found it unremarkable that a negative servitude “only be acquired by a grant or deed under seal“. In other words, it has to be consented to by the owner of the burdened estate. This, then, is the very essence of the problem with IP rights: they are nonconsensual negative easements.
The authors contend that what can legitimately be owned in a free society is only rights to physical property, not to the value thereof. You are thus free to undermine the value of our property by underselling us, by inventing a new substitute for our property, etc. But you cannot legitimately physically aggress against our property, even if its value remains constant despite your efforts.
They argue that:
(1) Discrimination, (2) defamation and libel suits, (3) comparable worth, parity, and afﬁrmative action policies, and (4) the notorious ‘ex-lover seeks compensation for no longer being loved’ suits would then have to be regarded as scandalous if at times amusing perversions of law and justice. Likewise, institutions such as (5) licensing laws, (6) zoning regulations, (7) anti-trust laws, (8) insider trading laws, etc., represent legal outgrowths of the property-in-value theory. Ultimately, they all involve restricting A’s control over speciﬁed resources by correspondingly expanding B’s control over them.
In other words, these legal practices are all exploitative since they give B control over resources owned by A;2 that is, they are forms of negative servitudes, if not outright transfers of property rights. Interestingly, the authors do not mention intellectual property such as patent and copyright, though this is one of the most conspicuous examples that could illustrate their point;3 however, they do mention defamation and libel, which is really a type of IP.4 In other words, as I’ve been thinking for some time now, many unjust laws can be classified as negative servitudes, including at least some of those Hoppe and Block analyze in this article.
Update: From :
IPRs, Professor Cornish reminds us, ‘are essentially negative: they are rights to stop others from doing certain things’.” Bob Baxt and Henry Ergas, “Australia” country chapter, in Intellectual Property, Competition Law and Economics in Asia, p. 97 (2011), quoting WR Cornish, Intellectual Property, 3rd edn (London, Sweet and Maxwell, 1996) 6.
Update: I need to generalize this someday, and integrate it with Rothbard’s taxonomy of state intervention as either autistic, binary, or triangular, which is discussed in Power and Market, in the chapter “Fundamentals of Intervention.”
What types of intervention can the invader commit? Broadly, we may distinguish three categories. In the first place, the intervener may command an individual subject to do or not to do certain things when these actions directly involve the individual’s person or property alone. In short, he restricts the subject’s use of his property when exchange is not involved. This may be called an autistic intervention, for any specific command directly involves only the subject himself. Secondly, the intervener may enforce a coerced exchange between the individual subject and himself, or a coerced “gift” to himself from the subject. Thirdly, the invader may either compel or prohibit an exchange between a pair of subjects. The former may be called a binary intervention, since a hegemonic relation is established between two people (the intervener and the subject); the latter may be called a triangular intervention, since a hegemonic relation is created between the invader and a pair of exchangers or would-be exchangers. The market, complex though it may be, consists of a series of exchanges between pairs of individuals. However extensive the interventions, then, they may be resolved into unit impacts on either individual subjects or pairs of individual subjects.
All these types of intervention, of course, are subdivisions of the hegemonic relation—the relation of command and obedience—as contrasted with the contractual relation of voluntary mutual benefit.
Autistic intervention occurs when the invader coerces a subject without receiving any good or service in return. Widely disparate types of autistic intervention are: homicide, assault, and compulsory enforcement or prohibition of any salute, speech, or religious observance. Even if the intervener is the State, which issues the edict to all individuals in the society, the edict is still in itself an autistic intervention, since the lines of force, so to speak, radiate from the State to each individual alone. Binary intervention occurs when the invader forces the subject to make an exchange or a unilateral “gift” of some good or service to the invader. Highway robbery and taxes are examples of binary intervention, as are conscription and compulsory jury service. Whether the binary hegemonic relation is a coerced “gift” or a coerced exchange does not really matter a great deal. The only difference is in the type of coercion involved. Slavery, of course, is usually a coerced exchange, since the slaveowner must supply his slaves with subsistence.
Curiously enough, writers on political economy have recognized only the third category as intervention.3 It is understandable that preoccupation with catallactic problems has led economists to overlook the broader praxeological category of actions that lie outside the monetary exchange nexus. Nevertheless, they are part of the subject matter of praxeology—and should be subjected to analysis. There is far less excuse for economists to neglect the binary category of intervention. Yet many economists who profess to be champions of the “free market” and opponents of interference with it have a peculiarly narrow view of freedom and intervention. Acts of binary intervention, such as conscription and the imposition of income taxes, are not considered intervention at all nor as interferences with the free market. Only instances of triangular intervention, such as price control, are conceded to be intervention. Curious schemata are developed in which the market is considered absolutely “free” and unhampered despite a regular system of imposed taxation. Yet taxes (and conscripts) are paid in money and thus enter the catallactic, as well as the wider praxeological, nexus.4
I am not quite sure at present how to fit the idea of imposed negative servitudes into this Rothbardian framework. A negative servitude is like autistic intervention in that it commands someone not to do certain things with his own property; yet this right is transferred to another citizen, instead of being wielded directly by the state. It has aspects of redistribution of property rights, where the state takes from A and gives to B (minus a handling charge), as in the case with taxation and welfarism. Must think more on this.
Update: The fact that IP law gives the wielder a negative servitude over the property, and even bodies, of others, shows that IP can also resemble slavery. I pointed this out in Against Intellectual Property (see text at n 94); as does Tom Palmer, “Intellectual Property: A Non-Posnerian Law and Economics Approach,” p. 281; and Palmer, “Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects,” pp. 828-29, 831, 862, 864–65; and Roderick Long (Owning Ideas Means Owning People; The Libertarian Case Against Intellectual Property Rights). Palmer notes that William Leggett also “argued that such rights were in reality statutory monopolies that infringed upon the rights of others to the ownership of their own bodies”. Palmer, Are Patents and Copyrights Morally Justified?,” p. 828–29; see also my post William Leggett on Intellectual Property.
Update: See Arnold Kling & Nick Schulz, Invisible Wealth 2011: p. 274: arguing that IP law is akin to slavery or ownership of others’ property, and that IP laws create scarcity where none existed: “However, one can also make a compelling case that laws to protect intellectual property are not natural, and that they promote disorder rather than order. They can create conflict where none existed previously. With tangible property, potential conflict exists whenever two people want to use the same thing at the same time. For example, two people cannot farm the same land at the same time. In economic jargon, we say that land is rivalrous, meaning that you and I are potential rivals over land. Similarly, we are potential rivals over a particular hamburger, a particular car, or a particular doctor’s time. Tangible goods and services are rivalrous.
Ideas are not rivalrous. I can use a formula, listen to a song, or follow a recipe without interfering with your ability to do so at the same time. I do not have to engage in physical trespass or violence in order to use one of your ideas. If someone takes the book you are holding away from you, they are depriving you of something. But that is not the case if someone unobtrusively stands over your shoulder and reads the book.
Indeed, it can be argued that while tangible property rights serve to limit disputes in situations where they might otherwise occur, intangible property rights create disputes unnecessarily. It is the person who presses a claim to intellectual property who must engage in physical trespass. I have to stop your printing press from printing a book. I have to stop your computer from downloading a song. Thus, intellectual property rights seem to confer a sort of reverse property right that diminishes the tangible property rights of others.”
Update: see also Wojciech Gamrot, “The type individuation problem,” Studia Philosophica Wratislaviensia vol. XVI, fasc. 4 (2021) (“IP rights are about the control of matter,” citing Justin Hughes, “The Philosophy of Intellectual Property,” 77 Geo. L.J. 287 (1988), pp. 330–350; also citing Hugh Breakey, “Natural intellectual property rights and the public domain,” The Modern Law Review 73 (2010), pp. 208–239 and Radu Uszkai, “Are Copyrights Compatible with Human Rights?,” The Romanian Journal of Analytic Philosophy 8 (2014), pp. 5–20.)
- See also Hoppe on Property Rights in Physical Integrity vs Value. [↩]
- For Hoppe’s explanation of why aggression is the true form of exploitation, see Hoppe: Marx was “Essentially Correct” . [↩]
- See, e.g., Locke, Smith, Marx and the Labor Theory of Value, Rand on IP, Owning “Values”, and ‘Rearrangement Rights’, Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism. [↩]
- See my post Types of Intellectual Property. [↩]