Though very lightly attended, the event proved great fun toward a worthy end. The Federalist Society has arranged to have a transcript of the debate published in an upcoming issue of the Journal of Technology Law and Policy. That transcript will presumably include the points that Adam and I ad libbed during the Q&A session that followed our talk. On this blog, I'll offer a lower calorie (because less heated!) version, excerpted from my initial comments. To make it less filling, moreover, I'll break my comments into two easily digestible parts. Herewith the first installment:
. . . I come before you as a friend of property rights. I moreover regard property rights as natural rights—not as merely the inventions of social engineers. Yet I regard copyrights and patents as no more than necessary evils, at best. Why? . . .
. . . I regard copyrights and patents skeptically because I hold our natural, customary, common law rights to tangible property in such high regard. To call copyrights and patents "property" risks diluting that term. Under so lax a definition, we might end up characterizing taxicab medallions or welfare benefits as property rights, too!
In that event, the meaning of "property"—and of our property rights—would have precious little meaning at all. We would find our natural rights to our persons and chattels transgressed on all sides, whittled away to satisfy a host of unnatural, artificial, statutory rights.
Allow me to explain. I'll briefly relate the consensus view of copyrights and patents, which regards them as statutory remedies to a looming market failure. I'll then explain why friends of natural property rights should regard copyrights and patents as no better than necessary evils.
The Consensus View
. . .
. . . [C]opyrights and patents differ crucially from tangible property. They are non-rivalrous in consumption. If I sing your copyrighted song or build your patented machine, I in no way interfere with your use and enjoyment of your creations. You can still sing your song or build your machine, too.
In contrast, we cannot simultaneously use and enjoy the same real or chattel property. If I build on your land or eat your apple, you cannot do the same. Such tangible goods are rivalrous in consumption.
That crucial economic difference justifies giving copyrights and patents different legal treatment from tangible property. . . .
. . .
Insofar as the law limits free access to copyrights and patents, it imposes a deadweight social cost on us all—the lost opportunity to enjoy the free and universal use of expressions and inventions. Why, then, does the law impose such limits? Not in defense of natural rights. No natural rights to copyrights and patents exist.
The law limits access to copyrights and patents to forestall a market failure. In addition to being non-rivalrous in consumption, copyrights and patents differ from tangible property in yet another, crucial way: Authors and inventors find it relatively difficult to prevent the unauthorized use of their creations. They thus fear that they will not recoup their production costs without a statutory right to limit the unauthorized use of their expressions and inventions. Hence the utilitarian justification for granting copyright and patent protection.