Intellectual Property: Response to Tom, Part 2

First installment here.

Says Tom:

Copyrights limit your peaceable enjoyment of your printing press and throat, for instance, restraining you from publishing or singing in echo of another. Patents likewise constrain how you use your laboratory or machine shop. Copyright rights and patent rights thus do not come out of thin air. They exist only because the government has redistributed some of our natural rights to authors and inventors.

Tom is claiming that IP deprives people of certain aspects of their traditional property. His use of the word “redistribution” bolsters his case for regarding IP as a form of welfare rather than a form of property. But I question whether the kind of redistribution in question is problematic in principle. I have three objections, two of which I’ll make here, and one that I’ll save for a third post.

First objection: All property rights are limited by other property rights. My right to have wild parties in my home is limited by my neighbors’ right to peace and quiet, for instance. The law of nuisance is all about placing limits on the use of property in order to protect other forms of property. So the mere fact that copyrights and patents limit the use of your material property doesn’t mean there has been an illegitimate redistribution.

But an IP-opponent might respond, correctly, that the granting of new patents or copyrights takes away uses of material property that the owners had previously. The copyrighting of a new song, for instance, prevents musicians from using their instruments in ways they could have used them before the granting of the copyright. This brings me to my second objection: it is not unknown in the law of material property for new developments to result in the abridgement of rights, or at least what had heretofore been regarded as rights. For instance, the law of real property used to follow the ad coelum doctrine, which held that a land owner owned the entire column of air above his land “up to the heavens.” That doctrine was dropped upon the development of air travel. Home owners might also reasonably have thought they could prevent the transmission of radiation through their homes – before the advent of broadcasting. If these changes in property law constitute redistributions, they strike me as innocuous ones. They were also highly beneficial ones, because adhering to a strict ad coelum doctrine or “no deliberate radiation” rule would have created an untenable economic problem. In order to fly airplanes, airlines would have needed to obtain consent from everyone in the planned flight path. Broadcasters would have had to obtain consent from everyone in the broadcast area. The transaction costs would likely have been insuperable.

Third objection to come.