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“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:

This chapter adopts a broad definition of libertarianism, which includes individuals who self-identify as classical liberals, but this does admittedly exclude anarchism. Given space limitations, I am also excluding liberal or leftist scholars who justify or criticize IP rights, and who are quoted or cited by libertarians, such as Lawrence Lessig, Michele Boldrin, and David Levine (Huebert 2010, 201–219).

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. (( For others, see “The Overwhelming Empirical Case Against Patent and Copyright” (Oct. 23, 2012). ))

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)]2

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.

Also, Mossoff’s argument and support for his contention that common law copyright existed in England is not persuasive; the revisionist article he cites3 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”).

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. See Intellectual Properganda”. []
  3. H. Tomas Gomez-Arostegui, “Copyright at Common Law in 1774.” []
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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.