19 March 2010

Liberty and (Intellectual) Property

I've been involved in a few debates recently about whether or not "intellectual property" is compatible with a libertarian system of maximal personal freedom.  My answer is yes and no!  The reason for that inconclusive answer is the use of the term "intellectual property."  It is essentially a propaganda term which covers a range of rights/privileges, some of which are compatible with full liberty and some of which aren't, so unless you are specific about what you mean by "intellectual property," you can't reach a definitive conclusion.

For copyright and patents, which seem to be the main bones of contention, I think the answer is no, because, for a property right to be compatible with full liberty, it has to be granted over a rivalrous good.  My reasoning is thus:

If you take rightful liberty to be as described by Jefferson or, as per this Herbert Spencer quote:
every man may claim the fullest liberty to exercise his faculties compatible with the possession of like liberty by every other man.
it should be fairly clear that, in those circumstances, unless I've personally agreed otherwise, I may claim the right to use an idea, concept, expression or other non-rivalous intangible good that I am aware of, because, in doing so, I do not prevent you doing likewise.

With rivalrous goods, which in the main are tangible goods, the same does not apply.  If we both want to wear a coat at the same time, we can't.  Physical reality makes that impossible.  Therefore, an appeal to maximal liberty doesn't enable us to claim the right to wear the coat, because neither of us can wear it without infringing the like freedom of the other.  In essence, property rights over tangible goods exist outside the framework of maximal liberty.  There are any number of ways in which those property rights could be allocated, many of which will be inequitable, unjust or downright stupid, but the crucial thing for the purpose of this argument is that, however you've come to acquire it, your property right over a rivalrous good doesn't inherently infringe my rightful liberty, because it is impossible for us to both to enjoy the freedom to use the good simultaneously.

Which brings me back to my initial answer of "yes and no."  The term "intellectual property" is applied to a range of intangibles, but it isn't tangibility which makes a property right compatible with maximal liberty, but rivalry, so any intangible which is impossible for two people to use simultaneous could have property rights applied to it without violating maximal liberty.  One area where this arguably could be the case is internet domain names, as it is not possible for two websites to share the same name at the same time.

The moral of the story is, if want to reach a meaningful conclusion about "intellectual property," don't use that term; talk about the specific right/privilege you're addressing.

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