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Do We Need Patents and Copyrights?

Written By: Sheldon Richman  |  Posted: Tuesday, July 19th, 2011

            The libertarian challenge to the legitimacy of "intellectual property" has created some confusion. It's understandable. For one thing, there's an apparent inconsistency: If one favors property rights in tangible things, why not in intangibles? Pro-property IP opponents reply that the tangible/intangible distinction is decisive. When you take someone's car without permission, not only do you have use of the car, but the owner does not. But when you engage in an IP (copyright or patent) violation, you have not literally taken anything. This is disputed, so let's look more closely.

            Jones invents (and patents) the wheelbarrow and uses it on his land. He intends to produce this great new device and sell it to a world that eagerly awaits it. Smith lawfully walks by Jones's property and watches him using the wheelbarrow, realizing this is something no one has ever seen before. If Smith goes home and, using her own materials and labor, makes a wheelbarrow from the mental image stored in her mind, what has she taken from Jones? Smith's mental image is hers. One could say it is the result of her own mental labor (observing, understanding, remembering). When she acquired it, in no way did she interfere with Jones's access either to his physical wheelbarrow or his mental image of it. Jones had what he started with. That's how it is with ideas. (Bear in mind that under current law Smith is guilty of patent infringement even if she never saw Jones's wheelbarrow. Do not assume that patents are primarily about prohibiting copying.)

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