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.)
But, someone will object, if Smith competes with Jones in selling wheelbarrows, Jones’s profits will likely be smaller than if the government were to stop Smith from competing in that market. (That’s what patents and copyrights boil down to.) True enough. But now the subject has changed. Instead of talking about property rights in the product of one’s labor, we’re talking about property rights in economic value or potential profits. How can one own economic value? It’s in the eyes of beholders. How can one own yet-to-be-made profits?
But, our critic might say, those profits would have been made had Smith not done what she did. We’re back to square one. What did she do? Again, she used her labor and materials to build a wheelbarrow based on a image in her mind. That image was there as a result of nonaggressive action. Had she broken into Jones’s home, Jones would have a cause of action for burglary. But Smith committed no burglary in our story. Had a contract existed between the two parties with respect to the wheelbarrow, perhaps a breach occurred. That’s also not part of this story. The burden of proof would seem to be on anyone who thinks a rights violation took place.
My example may be rejected because Jones obviously took no precaution against people seeing his wheelbarrow. I think that objection fails. If he owns the very idea wheelbarrow (which is the implication of a patent), why should he have to take such a precaution? Lysander Spooner, who pushed the case for IP as far as it can be pushed, wouldn’t have thought so. If Jones leaves the keys in his car, that certainly would not be a valid defense for a car thief.
In a recent discussion about copyright, my interlocutor suggested that the unauthorized publishing of a book in effect makes a slave of the author because the publisher profits off the author’s labor without consent. But that begs the question by assuming what is in dispute, namely that the publisher took something that belongs to the author. But what? The intangible book is an arrangement of words, however imaginative or novel. It’s hard to see how that can be owned. (We’ve already dealt with the lost-profits argument.) Of course there is nothing to stop fans of the author from launching a campaign to encourage people to buy the authorized edition. (J. R. R. Tolkien launched such a campaign for himself when The Lord of the Rings was issued in an unauthorized paperback.)
(I do not concede, by the way, that absent copyright, authors would suffer great hardship in the free market. Copyright advocates assert without good grounds that duplicating artistic works and complicated inventions is necessarily a low-cost and automatically lucrative endeavor, which is by no means the case. But that subject is for another time.)
The “slave labor” objection in fact proves too much. If Jones creates a new market by offering a novel product, is he exploited if Smith caters to that same market with a similar yet sufficiently different product? (Apple created a market with the iPod, but soon competitors came along that presumably did not violate Apple’s patents.)
Finally, it is curious that the first thing that occurs to people on first hearing the anti-IP case is plagiarism: “You mean it would be okay for someone to take an author’s work, put his own name on it, and sell it?”
Two issues are conflated here. One can plagiarize without violating a copyright, and one can violate a copyright without plagiarizing. Under copyright law you may use brief verbatim excerpts of another’s written work without permission as long as you use quotation marks and attribute the text to the author. It’s called “fair use.” (Question for copyright fans: Isn’t even fair use a violation of an author’s rights?) If you were to use an excerpt that otherwise would qualify under the fair-use principle but without attribution, you would be guilty of plagiarism but not copyright violation. The same would be true if you quote Shakespeare without attribution. (Shakespeare wrote without benefit of copyright.)
On the other hand, if you publish Atlas Shrugged with Ayn Rand’s name on it, you would be guilty of copyright violation but not plagiarism.
For the sake of clear thinking, let’s keep these issues separate.
Well, is plagiarism okay? No, it’s not! Obviously it is dishonest and dishonorable to represent someone else’s work as one’s own. But note, according to LegalZoom, “plagiarism is not a criminal or civil offense.” Nor should it be. It’s a breach of good conduct, and there is a plentitude of nonviolent, non-State ways to deal with it, especially in the Internet age.