“Intellectual Property” in The Routledge Companion to Libertarianism

The recently-published Routledge Companion to Libertarianism (Matt Zwolinski & Benjamin Ferguson, eds., 2022) includes a chapter on “Intellectual Property,” written by Objectivist law professor Adam Mossoff. I was initially dismayed that Mossoff was included in the book since he is pro-IP.¹ However, according to the Introduction, his chapter “surveys the surprisingly wide range of libertarian opinion on the issue of intellectual property rights.” As Mossoff states, “This chapter does not argue for any position in this longstanding IP debate, but rather describes the various positions on IP rights among libertarians and classical liberals.”

To my pleasant surprise, it’s a pretty decent and even-handed overview. I would quibble here and there, but it’s pretty good. As for some quibbles—

Mossoff claims that he surveys the thought only of minarchists and classical liberals, and excludes anarchists and non-libertarians. As he writes:

It makes no sense to exclude anarchists and, in fact, he actually doesn’t; he cites me, Roderick Long, Wendy McElroy, Tom Palmer, Jacob Huebert, and Benjamin Tucker—all anarchists (I think Palmer is, anyway). And he cites himself and Ayn Rand on IP; they are Objectivists and Ayn Rand rejected libertarianism. And given that he devotes part of his survey to a discussion of libertarian objection to IP on utilitarian grounds, it’s inexplicable that he would exclude Boldrin & Levine and their seminal work on this subject, Against Intellectual Monopoly; nor does he mention many of the other studies that cast doubt on the utilitarian case for IP, such as the famous remark by economist Fritz Machlup in a well-known 1958 study:

No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society. The best he can do is to state assumptions and make guesses about the extent to which reality corresponds to these assumptions. … If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one.²

Mossoff also notes:

The first usage of “IP” in the extant US legal record is in an 1845 court opinion by Circuit Justice Levi Woodbury, who wrote that “we protect intellectual property, the labors of the mind, … as much a man’s own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears” (Davoll v. Brown, 7 F. Cas. 197, 199 [C.C.D. Mass. 1845]).

But he doesn’t point out that this term was pushed mostly for propaganda purposes. As Fritz Machlup and Edith Penrose observed in two seminal studies:

Those who started using the word property in connection with inventions had a very definite purpose in mind: they wanted to substitute a word with a respectable connotation, “property”, for a word that had an unpleasant ring, “privilege”.

[Fritz Machlup & Edith Penrose, “The Patent Controversy in the Nineteenth Century,” Journal of Economic History 10 (1950), p. 1, 16]

While some economists before 1873 were anxious to deny that patents conferred “monopolies”–and, indeed, had talked of “property in inventions” chiefly in order to avoid using the unpopular word “monopoly”–most of this squeamishness has disappeared. But most writers want to make it understood that these are not “odious” monopolies but rather “social monopolies”, “general welfare monopolies”, or “socially earned” monopolies. Most writers also point out with great emphasis that the monopoly grant is limited and conditional.

[Fritz Machlup, U.S. Senate Subcommittee On Patents, Trademarks & Copyrights, An Economic Review of the Patent System, 85th Cong., 2nd Session, 1958, Study No. 15 (text excerpt)]³

While Mossoff admirably tries to explain the variety of arguments for the finite, fixed term limits for patent and copyright, it only ends up demonstrating how confused, arbitrary, and incoherent these justifications are.

Mossoff also writes:

All property rights provide exclusive control over a resource or asset. One key di!erence between IP rights and other property rights, such as chattels, real estate, water, air rights, radio spectrum, credit, or legal judgments, among innumerable other forms of property, is that an IP right prohibits unauthorized copying in addition to prohibiting unauthorized access, use, and sale of the property (see, for example, 35 USC Section 271). Since copying is a form of how IP rights are violated, courts have long defined unauthorized copying along with unauthor-ized access, use, or sale as a “trespass” on the rights of innovators and creators (Mossoff 2007, 992–993).

Property rights do not actually provide the right to control, but only the right to exclude. This is made explicitly clear in the case of patents, but it is true for other forms of property as well. See, on this, Kinsella, “What Libertarianism Is,” p. 32, and “Against Intellectual Property After Twenty Years” (ch. 15), n.62 and Part IV.H, in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), also idem, “The Non-Aggression Principle as a Limit on Action, Not on Property Rights,” StephanKinsella.com (Jan. 22, 2010) and idem, “IP and Aggression as Limits on Property Rights: How They Differ,” StephanKinsella.com (Jan. 22, 2010), both at www.stephankinsella.com/lffs.

Also, Mossoff’s argument and support for his contention that common law copyright existed in England is not persuasive; the revisionist article he cites⁴ is not persuasive at all. Instead of arguing whether the court in England in the late 1700s “got it right” in deciding whether there had been a common law copyright before the Statute of Anne in 1710, why not just point to a few pre-1710 common law cases recognizing such a right? And why argue that patent and copyright are “really” common law rights, when Mossoff and other defenders are in support of the patent and copyright legislation? Why not agree with us that the Patent Act and Copyright Act should be abolished and just let the common law courts recognize these fake IP rights? I suspect it is because Mossoff realizes that without legislation these rights could not exist, just as he (to his credit) admits that IP rights cannot come from contract (he writes: “one can try to create through contracts some of the protections provided by the concept of an IP right, but it is impossible to create all of them”).

It is, in fact, not clear at all that common law copyright—that is, some legal rights similar to today’s modern copyright, that arose purely on the common law—ever existed. Some state-based laws existed, but they mostly concerned a trade-secret like right to prevent an unauthorized person from first publishing one’s unpublished work.⁵ (Rothbard himself was confused by this term, using it to refer to some kind of “contractual copyright,” even though, as even Mossoff acknowledges, IP rights cannot stem from contractual arrangements. The use of “common-law copyright” by Rothbard is doubly confusing and misleading, since that expression never referred to contractual arrangements; nor did it refer to rights in inventions—the domain of patent law—, which his “common-law copyright” idea most certainly did, as can be seen with his use of the example of a mousetrap. See Kinsella, Legal Foundations of a Free Society, pp. 391 & 415 n.46.)

Again, as noted above, I was pleasantly surprised by the chapter’s mostly accurate and even-handed overview of both sides of this debate. Happily, there is was a free version of the book online, so you can judge for yourself.

1. See “Mossoff: Patent Law Really Is as Straightforward as Real Estate Law“; “Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors“; “Hsieh and Mossoff on IP and Sewing Machines“; “Mossoff: Why Should Business Leaders Care About Intellectual Property (Objectivism)“; “Pledge for a Webcast on Intellectual Property by Adam Mossoff“. [↩]
2. For others, see “The Overwhelming Empirical Case Against Patent and Copyright” (Oct. 23, 2012). [↩]
3. See “Intellectual Properganda”. [↩]
4. H. Tomas Gomez-Arostegui, “Copyright at Common Law in 1774.” [↩]
5. See, e.g., Howard B. Abrams, “The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright,” Wayne L. Rev. vol. 29, no. 3 (Spring 1983): 1119–92; Ronan Deazley, “The Myth of Copyright at Common Law,” Cambridge L. J. 62, no. 1, pp. 106-133; Liam Séamus O’Melinn, “The Recording Industry v. James Madison, aka “Publius”: The Inversion of Culture and Copyright,” Seattle U.L. Rev. 35, no. 1 (2011): 75–133, pp. 79, 103 (citing Abrams and Deazley: “common law and natural law copyright are fictions”; common-law copyright has been “fully and formally discredited”). But cf. Tomas Gomez-Arostegui, “Copyright at Common Law in 1774,” Conn. L. Rev. 47, no. 1 (2014): 1–57. [↩]