Saturday, October 22, 2005

"Life, Liberty, and Intellectual Property" Debate, Installment 2

I earlier offered the first installment of some excerpts from my recent debate with Adam Mossoff about whether or not copyrights and patents qualify as natural rights. Here, as promised/threatened, I offer the second installment:


Copyrights and Patents as Property?

Copyrights and patents of course share many features of property rights generally. . . . But for reasons I've detailed, and for other reasons I might add, copyrights and patents differ crucially from our natural rights to persons and property. Like a flat map of our spherical Earth, property theory illustrates some truths about copyrights and patents even as it imposes misleading distortions.

To better understand copyright and patent, we need other metaphors. I suggest, for instance, considering copyright and patent as akin to welfare programs. Like the welfare system, the copyright and patent system redistributes rights from members of the general public to particular beneficiaries: authors and inventors. And, like the welfare system, the copyright and patent system can lay fair claim to serving both equity and efficiency.

But, as with welfare, we should not forget that copyrights and patents represent, at best, necessary evils. We should always aim at a world where recipients of the public's largess learn to support themselves, relying not on special statutory protections but rather on the same general rights to persons, property, and promises that the rest of us rely on. We should, in other words, aim at ending copyrights and patents as we know them.


How Copyrights and Patents Violate Natural Rights

Copyrights and patents exist only at the expense of our natural rights to our persons and property. 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.

Such transgressions do not necessarily render copyrights and patents per se invalid. We routinely suffer violations of our natural rights in order to enjoy the fruits of government. Although it sometimes feels like simple theft, we forbear taxation because it serves such ends as national defense and public welfare.

Perhaps the rights redistributions effectuated by copyright and patent law prevent a looming market failure. We certainly enjoy a great abundance of expressions and inventions in the U.S., an effect to which copyright and patent law can plausibly lay claim. But let us not forget that we pay a price for such boons. And let us not forget that, once no longer necessary, a necessary evil becomes simply an evil.


I could—and in the Q&A part of my debate with Adam, did—say more about how copyrights and patents violate natural rights. We discussed several various accounts of natural rights—Lockean, Hayekian, Adam's, and mine—and I argued that none supports a natural right to copyrights and patents. We also discussed what the Founders seemed to have thought about the issue, and the legal import of that evidence. I don't know if I'll get around to recapping those points here. At any rate, though, the transcript published in the Journal of Technology Law and Policy ought to do the job.

16 comments:

Blar said...

I think that this view of intellectual property makes a lot of sense. Is there any major political group in the US that's supporting anything like it? Do you know which party, D's or R's, is closer to it? From what I've heard, Republicans have been trying to spread unnecessarily stringent IP law under the guise of "free trade", but I don't know if Democrats have been much better. Some liberal pundits, at least, seem to get it.

Murky Thoughts said...

I'm not exactly sure what they are, but European authors have "moral rights," which I take to be something natural. Am I not naturally entitled to a reputation reflecting that which I create? If everybody gets to sing my song, it's at the cost of my prestige and influence. If a publisher pollutes my masterpiece of literature by editing but keeps my name on the cover, am I not harmed?

Ben said...

I think this discussion is releveant: Violating A Patent As Moral Choice

Tom W. Bell said...

Blar: I not noted politicians of either major U.S. party voicing anything like the view I describe. Insofar as they speak about the philosophical foundations of copyrights and patents (which isn't much), they tend to treat them as akin to all other sorts of property rights.

Murky: The moral rights (more accurately, if less frequently, called "authors' rights") that you describe reflect a philosophical view largely alien to U.S. culture and law--one based in Hegelianism. But U.S. law does permit unfair competition claims premised on the wrong you describe: passing off.

Is that a natural right to fight unfair competition? Perhaps in this sense: We each have a natural right not to suffer fraud. If someone sells you goods or services under another's name, that arguably constitutes fraud. The law vests the cause of action not in you, however, but in the party whose name is wrongly used. Why? Not in defense of any natural right, but for reasons of adminstrative efficiency.

Murky Thoughts said...
This comment has been removed by a blog administrator.
Murky Thoughts said...

That's as may be, but just because something's only believed by Europeans doesn't mean it ain't natural.

Anyway, thanks for taking up my point. I didn't mean to be addressing "passing off" so much as using the seeming widespread acknowledgment of the wrongness of passing off as evidence of some more general right. I was suggesting as another aspect of that general right a right to accrue prestige and influence from the products of my intellectual labors. If nobody gets to sing "Row row row your boat" but me, then the glory to be derived from every embodiment or manifestation thereof attaches directly to me. Not just the glory either but every connotation of personhood that might go along with "Row row" in the minds of the world's listeners. "Row row" is me and I am "Row row." Other people are other songs. If we aren't what we create, what are we and how do we differ from one another? Anatomically only? Where we own property and whether it has an ocean view? Uh oh. I think I may be turning European.

Murky Thoughts said...

I think it at least partly true to say it's an act of self-preservation for a pop star like Madonna to keep changing her image. When everybody is dressing like Madonna, Madonna has lost something, and she's certainly less cool.

Murky Thoughts said...

I'm not intentionally being silly BTW by talking about "cool" as if it's important. Being cool (or whatever word you use in your cultural niche) is important empirically, because most of us strive for it. I'd say it's a form of wealth, just not simply interconvertable with money.

Tom W. Bell said...

Murky: I would prove extraordinarily strange and unfortunate if only authors and inventors qualified as individuals. What makes each of us unique is not what we make, but rather what we do. Our characters arise from our our choices, not from our creations.

Murky Thoughts said...

What we do? Character? I think there's IP content in both those concepts. If we wired your limbs with GPS sensors at birth and tracked your every motion through life, the data we would collect wouldn't say anything about you--you'd need interpretation by NSA psychologists to make anything of it. Our choices are mental events and often we can document their production in writing, which we can publish. Only a small amount of IP gets patented or copyrighted, so I didn't mean to count only authors, artists and inventors as people who exist. Yes, "publishing" is a recent and rare event in human history, but also it's a modern and narrow concept. But everybody is publishing all the time in a way, by the way we dress and act and talk. It's very obvious that your children at least are subscribing to this publication. I guess it's when we put a lot of energy or creativity into our IP that we start to worry about plagiarism. Malcom Gladwell had an interesting essay in the New Yorker on plagiarism a while back.

Murky Thoughts said...

Ooh, here's a (if I do say so myself) nifty thought experiment. You blog with your real name, but most people blog underpseudonyms and we talk about them (us?) having Wep personas. Well, what if after so many years bloggy and commenting as Murky Thoughts some hacker stole my URL and username and changed the password so that he or she was Murky Thoughts. Or somebody on the Web with an actual reputation, such as "Atrios" (I don't know whether Atrios has a known real identity). I think that counts as intellectual property theft. I suppose you'll acknowledge this at least as a kind of "passing off" but I think it's more or at least more obviously a crime against nature, so to speak.

Murky Thoughts said...

Maybe I didn't flesh that out enough: I have in mind that when you steal the URL and login "Atrios" you get to own the persona of Atrios--the reputation, the body of work, the identity. There's a real person or perhaps several real people behind "Atrios," but unless we know him her or them in real life, Atrios is just Web content that we regard as a person (persona). If I were to become Atrios and the person or people behind Atrios no longer get to be Atrios, that would be very wrong...although I guess we'd have to scurry around quite a bit to find a legal cause of action.

Murky Thoughts said...

Or how about this: Why even in the pursuit of knowledge is the author of an idea or theory so often its greatest and most loyal fan? Even after the author provides others the rationale? Even after others tend to favor another theory? I don't think it's incidental that ego is tied up with ideas. I think in large part we are our ideas, our IP.

Tom W. Bell said...

Murky: Granted that you can imagine fixing every one of a person's choices and claim a copyright in the resulting work. I still don't think that you would thereby capture individuality. I said that character arises from our choices. I might have added that it is not *only* our choices. Why? Because context matters crucially. A choice in the abstract conveys nothing of character. A choice matters because of what it reflects and what it does. And nobody owns a copyright in context.

Your thought experiments sound like instances of passing off, or maybe the related wrong of violation of the right of publicity. As such, they are not unknown to the law. But I don't think that the law thereby necessarily proves the existence of a natural right to not suffer mimicry.

Murky Thoughts said...

Is the standard of proof of a natural right a high one? I read a sort of "Reader's Digest" analysis of Locke by Elizabeth Anderson at the "Left2right" blog, and that's about all I know on the subject, but Locke's argument didn't exactly seem irresistable, and I think Anderson represented as not universally accepted and/or a work in progress and/or not without competitors. Besides centuries of allegiance, I suspect what Locke has going for his argument is that it jibes with our intuitive possessiveness in regards to physical property. I imagine he invented his argument to solve the problem of this inuition that was lacking a civilised justification. So I'm grasping for an intuition in regard to intellectual property, and I do feel like I've got my hands on something. I'm not sure what it establishes that an existing law touches on something. There are things we think of as natural categories and others as unnatural categories. Not every law is going to be "a natural," so the fact that an existing law suggests framing or construing the intuitive thing I'm talking about a certain way doesn't argue strongly a priori, I would think, that this is the right way to think about it. I'm stuck talking about the a priori of course, because I know all but nothing about the scholarship on this topic. Still I'm having fun! Thanks for engaging with my ideas.

One more thing: I'll concede that there's more to life and to who we are than the mental. I got a little hyperpolic in making my point. But I don't think IP has to be all we're about to be natural. Maybe I should say though that "natural" means no more to me than deserving of consideration and to being catered to--like the fact of teenage sexuality was taken into consideration once in the policy of schooling boys and girls separately, but now we accomodate in other ways or to a lesser extent. Maybe when you legal philosophy folks talk about "natural rights" you are delving for something deeper and/or different.

Murky Thoughts said...

What I might have said instead of heading into abstraction with the category business is that you may be right in identifying my examples as what you and the law would label "passing off," and yet there might be important dimensions to these imagined thefts that the legal perspective doesn't capture. e.g. pain and suffering seemingly used to be invisible to the law, and now we feel obliged to reckon with them. Patenting and copyright obviously didn't always exist either, and so maybe the law has a ways to go in this realm. 70 years of Mickey post Walt does seem a little nutty to me!