Libertarian perspectives on intellectual property

Libertarian perspectives on intellectual property

Libertarians have differing opinions on the validity of intellectual property laws. Many libertarians don't have a strong opinion on the topic, while others consider it a minor matter in the light of what they believe are greater government violations of rights, such as physical property rights.

Copyrights and patents

Many libertarians consider copyright and patent to be forms of inclosurendash illegitimate government creation of exclusive privilege by prohibiting most individuals from accessing commons. Copyright and patents are government-granted monopolies on production, and no better than a government-granted monopoly on producing food or oil.


Trademark, unlike copyright and patent, can be construed as a protection against fraud and misrepresentation: it ensures that others cannot abuse a successful product name to promote an inferior knockoff. Since most libertarians believe that fraud should be criminal, they agree, in this regard, with trademark law.

However, in many jurisdictions the concept of trademark dilution has developed to protect trademarks as a property right, securing the investment the trademark owner has made in establishing and promoting a strong mark without regard to likelihood for confusion. This has even been used to limit free speech about a product, something few libertarians would be likely to defend.

Natural-law libertarians' views

Some natural-law libertarians believe in a right of authors and inventors to control others' copying of their creations. They usually believe this right should have all the conventional attributes of property, including perpetual inheritance. They differentiate between the intellectual property (e.g. a blueprint, or music) and its physical manifestation (e.g. the machine or a copy of the music), the former being "used" to create the latter. They believe, therefore, that an owner's control over the use of his/her property extends to control over the use of intellectual property. Nonetheless, they believe the right would exist regardless of whether government chose to enforce it.

Other natural-law libertarians believe that intellectual property is but a monopoly privilege that would not exist but for government intervention, and that it should be abolished. To them, whatever secrecy and exclusivity are to exist should be achieved out of voluntary contracts, the cost of which are to be born by those who try to achieve secrecy and exclusivity. Agorism is a form of anarcho-capitalism which holds this view, and it is also held by some other anarcho-capitalists (but by no means all).

Minarchist views

Some minarchists who believe in the government's authority to exercise its enumerated powers believe that the federal government should protect patents and copyrights, whose imposition by Congress is allowed under Article I of the United States Constitution. The Cato Institute for instance, claims "Congress should...take the constitutional principle of 'promoting the progress of science and useful arts' seriously, but don't extend copyrights far beyond reasonable terms." [] Ayn Rand also supported copyrights and patents, although she argued that the term should be limited, noting in "": []

Andrew J. Galambos [citation|title=The Theory of Volition|author=Galambos, Andrew J.|year=1999] and J. Neil Schulman [citation|title=Information Property: Logorights|publisher=Journal of Social and Biological Structures|year=1990|author=Schulman, J. Neil] are other libertarian proponents of IP. Some objectivists who support IP are George Reisman, David Kelley, etc. Lysander Spooner and Herbert Spencer supported IP on moral grounds.

Anarcho-capitalist views

Since anarcho-capitalists oppose the existence of even a minimal state, this ideological framework requires that any functions served by intellectual property law promulgation and enforcement be provided through private sector institutions. Murray Rothbard argues for allowing contractually-arising infinite copyright terms; for treating patents as copyrights; and against the need for any government role in protecting intellectual property. [] He states that government's involvement in defining arbitrary limits on the duration, scope, etc. of intellectual property in order to "promote the Progress of Science and useful Arts" is inherently problematic, since "By what standard do you judge that research expenditures are 'too much,' 'too little,' or just about enough?" He argues that intellectual property laws can actually hinder innovation, since com­petitors can be indefinitely discouraged from further re­search expenditures in the general area covered by the patent because the courts may hold their improvements as infringements on the previous patent, and the patent holder is discouraged from engaging in further research in this field because the privilege discourages his improvement of his invention for the entire period of the patent, with the assur­ance that no competitor can trespass on his domain. [] Morris and Linda Tannehill propose that ideas in the form of inventions could be registered in a privately owned "data bank"; the inventor could then buy insurance against the theft and unauthorized commercial use of the invention, and the insurance company would guarantee to not only compensate the inventor for any losses suffered due to such infringement but to stop such unauthorized use. [cite book|title=The Market for Liberty|pages=58-59|author=Tannehill, Morris and Linda|isbn=0-930073-08-8|chapter=Propertyndash The Great Problem Solver] David D. Friedman appears to support IP, on "law and economics grounds." Opponents to intellectual property rights include Wendy McElroy, Tom G. Palmer, Lepage, Boudewijn Bouckaert, and N. Stephan Kinsella. [] The latter argues that patents may be inefficient in that they divert resources from research and development to patent filing and lawsuits and from theoretical research to practical research. Kinsella argues that property rights can only apply to scarce resources; thus, if a new lawnmower could be magically conjured up out of nothing in the blink of an eye, it would not be theft to steal one. Since ideas are not naturally scarcendash i.e., copying a book does not prevent anyone else from copying the same bookndash they are not a legitimate subject of property rights. Furthermore, the only way that intellectual property rights can be implemented is by limiting others' physical property rights. For instance, a patent on a method for drilling a well limits others' property rights over their land, as they cannot use that method without seeking permission from the patent owner. Thus, each patent places restrictions on land not owned by the patent holder.

Roderick T. Long argues that the concept of intellectual property is not libertarian. He holds that prohibiting people from using, reproducing, and trading copyrighted material is an infringement of freedom of speech and freedom of the press, and that since information exists in people's minds and other people's property, one cannot own information without owning other people. As proof that authors and publishers will continue to produce without copyrights, he cites the fact that hundreds of thousands of articles are uploaded onto the Internet by their authors every day, available to anyone in the world for free and that nearly all works written before 1900 are in the public domain, yet pre-1900 works are still published, and still sell. [] Benjamin Tucker writes, "...the patent monopoly...consists in protecting inventors...against competition for a period long enough to extort from the people a reward enormously in excess of the labor measure of their services,ndash in other words, in giving certain people a right of property for a term of years in laws and facts of Nature, and the power to exact tribute from others for the use of this natural wealth, which should be open to all." [Benjamin Tucker, Instead of a Book, By a Man Too Busy to Write One: A Fragmentary Exposition of Philosophical Anarchism (New York: Tucker, 1893), p. 13.]

The Molinari Institute notes that Thomas Jefferson was against copyrights and cites many other libertarians who opposed it. []

Intellectual property-related policies and practices of prominent libertarians

Many libertarian organizations, such as the Reason Foundation, [] Independent Institute, [] Cato Institute, [] and Ludwig von Mises Institute [] copyright their publications. However, the latter nonetheless makes entire books freely available on the Internet, making their "non-free" status somewhat irrelevant from the point of view of someone who merely wants to read them. Moreover, the site hosts many articles about the allegedly absurd lengths that copyright enforcement is taken to, which they claim have hindered the ability of consumers to buy the products they want. For instance, a Mises blog entry notes that a bakery is refusing to put Disney characters on its customized birthday cakes, lest it be liable for infringement; [] another blog criticizes the Marvel Comics lawsuit over the "City of Heroes" game that allows players to create characters that resemble those from its comic books. [] Mises writers also lamented the demise of the International Music Score Library Project in the wake of a cease and desist letter. [] The Independent Institute's collection of research does not seem to provide much coverage of intellectual property debates; its book "Winners, Losers and Microsoft" approaches the issue of copyright owner monopoly power only indirectly, opining that barriers to entry for a new product can be overcome by offering a discount during an introductory period; the ability to design software to be compatible with competitors' products; potential coordination of customers in switching to a new standard; etc. [cite book|title=Winners, Losers & Microsoft: Competition and Antitrust in High Technology|author=Liebowitz, Stan J. and Margolis, Stephen E.|pages=89, 111] Cato scholars suggest that government remove barriers to private sector efforts to enforce intellectual property rights, noting for instance that "overzealous antitrust enforcement might hamper collective private efforts to license songs." []

Susan Hogarth, leader of LPRadicals and candidate for North Carolina House of Representatives, does not include a copyright notice on the caucus website or on her campaign website, [] [] and has stated in posts to the lpradicals Yahoo group [] that she does not believe in intellectual property. Libertarian wikis tend to release their content under some sort of free or semi-free license; LPedia licenses its content under the Creative Commons Attribution-Noncommercial-Share Alike 3.0 license. [] Libertarianwiki releases its content into the public domain. [] In 2008, Libertarian Nathan Larson announced that he was releasing all the content on his campaign website into the public domain. He said the lack of need to ask permission to reprint material would reduce the transaction costs for those who want to modify and propagate useful information.


External links

* [ The Libertarian Case Against Intellectual Property]

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