Just came across this article: John M. Kraft & Robert Hovden, “Natural Rights, Scarcity & Intellectual Property,” 7 NYU J.L. & Liberty 467 (2013)
Property rights are a fundamental aspect of all classical liberal and libertarian philosophies. Within these ideological paradigms, there is little disagreement over the concept of selfownership and property rights in tangible goods. But when looking to property rights in non-tangible or ideal objects—like those granted by copyright, patent, and trademark law—a considerable disagreement can be seen within the classical liberal approach.
If we look to positions of various libertarian and classical liberal writers, we see a range of conclusions concerning how ideas and their applications should be protected under a system of law. This paper takes a natural rights approach to the consideration of property in general, and investigates the reasons why the consensus on rights to tangible property exists and why it breaks down when applied to ideal or intangible property. Beginning with the Lockean foundation of the natural right to self-ownership and personal property, and continuing into the application of these ideas to intangible and ideal objects, this paper concludes that scarcity is the fundamental difference between these two types of resources. The lack of scarcity in ideal objects destroys any perceived natural rights foundation to intellectual property.
Many of the arguments in favor of the extension of strict property rights to intellectual property and ideal objects stem from a misapplication of Locke’s mixed labor theory of property. These arguments may pull at the heartstrings of those libertarian and classical liberal writers who rightly see property as fundamental to liberty. But when we look closely at why property rights are so important to a worldview that holds liberty sacrosanct, we can see that the staunch defense of property stems from the harm that runs to owners of scarce objects when they are divested of sole possession. In contrast, because scarcity does not attach to ideal and intangible objects, a “no harm” principle is implicated by the lack of sole possession. This distinction between scarce and non-scarce objects drives a wedge between what should be considered a natural right in property found in tangible and scarce resources justly acquired, and those resources that can be held in common without harm to any possessor. The distinction between these two types of resources is not without consequence. “Property” in the Constitution is distinct from Congress’s grant to authors of monopolies over their work. This has implications for the rights both authors and the public hold in regards to intellectual property law.
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