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andrewduckerStolen from the Volokh Conspiracy for my own later pludering
I've recently gotten some messages asking why intellectual property makes sense at all. Sure, they say, it's good to have property in land and in tangible items -- but the concept just doesn't make sense for expression (copyright) or inventions and ideas (patent).
I want to speak briefly to this. I think the concept does make sense, and cannot be quickly dismissed on conceptual or moral grounds. The analogies between tangible property and intangible property are indeed fairly significant. Intellectual property may yet been shown to be pragmatically unsound, in some or even all of its parts; I'm certainly not an unconditional defender of intellectual property law. But the sound arguments against it, like the arguments for it, are more complex than some suggest. (The impatient may want to skip to item 2 and the well example in item 4 below, which may be less familiar than the other materials.)
1. Property as a right to use plus a right to exclude. You own your house, and you own your car. This means (oversimplifying) that you have a right to use this property, and a right to keep others from using it. As it happens, the right to exclude is usually necessary to make the right to use work -- if others could use your car without limit, there'd often be times when you couldn't use it. But as we'll see shortly, that needn't be so. (Not all property interests involve a right to use plus a right to exclude, but let's set that aside for now.)
In lay usage, people often think of property as being necessarily something physical; but law generally doesn't require this. In particular, copyright and patent are treated as property because, like property in land or goods, they are (not unlimited) rights to use a work or an invention, plus (not unlimited) rights to exclude others from using it. That's really what it means to say that they are "intellectual property."
2. Property as a limit on others' freedom of action. From this follows another important point: All property that has a right-to-exclude component is a limit on others' freedom of action. If you own your land, this limits my freedom to walk on it.
Now we often don't perceive this as limits on freedom of action, because we're used to it, and aren't much troubled by it. But sometimes we do sense it: For instance, when there's talk of taking public beaches (i.e., beaches open to all, with no individual having a right to exclude others) and turning them into someone's private property, people might say "Hey, that means I won't be free to go to that beach any more." Likewise, homeless people who want to take shelter on private property may be keenly aware that the owner's right to exclude interferes with their liberty to go onto that property.
These limit may be legitimate, because we might conclude that you shouldn't have a moral or legal right to walk onto my property. (After all, my right to life is also a limit on your freedom not to kill me, but a justifiable one.) But that just means the question is "Which forms of property are proper limits on others' freedom" -- not that some forms of right-to-exclude property are limits and others aren't.
So copyrights and patents are certainly limits on others' freedom. They keep me from copying your computer program on my computer in my office from disks that I lawfully own. But in this respect, they are similar to, not different from, property rights in tangible items.
3. Why have property? Property feels right to many of us because of a sense that each of us should own the fruit of our labor. (Incidentally, that's why copyright and patent feel right o many people, too.) But this is at least not the whole story, because some property -- such as land -- wasn't created by its owners.
Say there's a large stretch of land that's commonly owned, such as the West of the U.S. once was. (Ignore the complications raised by the presence of American Indians.) The government decided to open the land for private ownership. It didn't have to do it; it could have kept it as a giant park, and no-one's property rights would have been harmed. But it gave or sold the land to people who didn't create it, thus limiting the freedom of action of all others.
The reason for this was incentive: If people have the right to exclude others from their land, they'll have more incentive to invest effort in improving the land -- build homes, plant crops, and so on. We could have had open parkland with everyone free to sleep and pick fruit anywhere, but few shelters or orchards. Instead, we limited people's freedom, and got more homes and hotels (though ones that cost money to sleep in) and agriculture (though you need to buy apples from people, not just gather them).
So far, the argument tracks copyright and patent law quite well. The theory of intellectual property is likewise that giving people the right to exclude others from new works or inventions will give people an incentive to invest effort in creating and inventing. We would have less legal freedom of action -- you'll be more limited in what you can do in your own office or garage -- but we'd have more wealth, because there'll be a lot more works and inventions, albeit ones that it may cost you money to use.
4. The rivalrous and the nonrivalrous. There is, of course, an important distinction: Only a limited number of people can sleep in your house, or eat your apples. If people were free to come on your land and consume your crops -- "rivalrous goods" -- then you (and the people whom you sell rights to) wouldn't have a place to sleep or food to eat. But if people were free to copy your book or reproduce your invention, you'd still be free to do the same yourself, since these items are "nonrivalrous." So no need for property law here, right?
But that makes sense only if you see property law as focused solely on securing the rights to use. If property law -- in land and in goods -- also legitimately protects the right to exclude, not just as a way of protecting the right to use but also as a way to give people enough incentive to invest time and effort, then intellectual property law does make sense even if such property is nonrivalrous.
Consider an example: Imagine that there are a few hundred farmers living out in relatively well-irrigated countryside. Each farmer can dig a well, which will amply serve the farmer and many nearby farmers; that's just the property of a well -- even a small well provides lots of water, much more than one farmer would need. Moreover, the water table is huge, and the farmers aren't going to exhaust it. But, it turns out, the well takes a lot of money to dig (the money goes for renting equipment and paying laborers).
Say that you create a well on your property, and start charging your neighbors, who don't have such wells, for access to it. Many of your neighbors are willing to pay; your well is closer and more convenient than other competitor wells. But some others just come and take the water for free. "This water is nonrivalrous," they say. "If I take the water, I'm not going to interfere with your or your customers' right to use it, nor will I really interfere with any work you do on your land on the way to the well."
You'd be upset, but that's not my concern. My concern is that if this starts happening, and other neighbors see that they can take water without paying, other farmers won't drill as many wells: They'll know that if they do spend the money to dig the well, they probably won't be able to recover this investment. Maybe they'll find some less effective and more expensive ways of getting payment (for instance, they may invest more money into putting up very high-tech fences -- technological self-help rather than reliance on law), but this will still mean many fewer wells built, and much more expensive water.
Even for the nonrivalrous good, destroying the right to exclude has taken away much of the incentive to invest. It hasn't taken away all the incentive; even destroying all property wouldn't take away all the incentive to invest effort. But it has taken away a lot, likely enough to make society on balance considerably worse off.
I give this as an example because the well is tangible property, not intangible property. Most of my pro-property readers would have no trouble concluding that the well owner should have the right to protect the property. But why? Here there's a situation where tangible property really is nonrivalrous. (There are other, more limited, examples of this, too, having to do with excess capacity in mostly empty theaters, airplanes, and so on, though there the excess capacity is much more limited, and removing the right to exclude eventually will remove the right to use.) Others' use of the well doesn't interfere with my right to use.
This scenario, I think, shows that there indeed is more to property than securing the right to use; there's also the need for an incentive to create new works (plus perhaps a moral right to have exclusive control of the fruits of one's labor, but actually I'm not relying on this here). And if this is so for tangible property, then this may be so for intellectual property too.
I've recently gotten some messages asking why intellectual property makes sense at all. Sure, they say, it's good to have property in land and in tangible items -- but the concept just doesn't make sense for expression (copyright) or inventions and ideas (patent).
I want to speak briefly to this. I think the concept does make sense, and cannot be quickly dismissed on conceptual or moral grounds. The analogies between tangible property and intangible property are indeed fairly significant. Intellectual property may yet been shown to be pragmatically unsound, in some or even all of its parts; I'm certainly not an unconditional defender of intellectual property law. But the sound arguments against it, like the arguments for it, are more complex than some suggest. (The impatient may want to skip to item 2 and the well example in item 4 below, which may be less familiar than the other materials.)
1. Property as a right to use plus a right to exclude. You own your house, and you own your car. This means (oversimplifying) that you have a right to use this property, and a right to keep others from using it. As it happens, the right to exclude is usually necessary to make the right to use work -- if others could use your car without limit, there'd often be times when you couldn't use it. But as we'll see shortly, that needn't be so. (Not all property interests involve a right to use plus a right to exclude, but let's set that aside for now.)
In lay usage, people often think of property as being necessarily something physical; but law generally doesn't require this. In particular, copyright and patent are treated as property because, like property in land or goods, they are (not unlimited) rights to use a work or an invention, plus (not unlimited) rights to exclude others from using it. That's really what it means to say that they are "intellectual property."
2. Property as a limit on others' freedom of action. From this follows another important point: All property that has a right-to-exclude component is a limit on others' freedom of action. If you own your land, this limits my freedom to walk on it.
Now we often don't perceive this as limits on freedom of action, because we're used to it, and aren't much troubled by it. But sometimes we do sense it: For instance, when there's talk of taking public beaches (i.e., beaches open to all, with no individual having a right to exclude others) and turning them into someone's private property, people might say "Hey, that means I won't be free to go to that beach any more." Likewise, homeless people who want to take shelter on private property may be keenly aware that the owner's right to exclude interferes with their liberty to go onto that property.
These limit may be legitimate, because we might conclude that you shouldn't have a moral or legal right to walk onto my property. (After all, my right to life is also a limit on your freedom not to kill me, but a justifiable one.) But that just means the question is "Which forms of property are proper limits on others' freedom" -- not that some forms of right-to-exclude property are limits and others aren't.
So copyrights and patents are certainly limits on others' freedom. They keep me from copying your computer program on my computer in my office from disks that I lawfully own. But in this respect, they are similar to, not different from, property rights in tangible items.
3. Why have property? Property feels right to many of us because of a sense that each of us should own the fruit of our labor. (Incidentally, that's why copyright and patent feel right o many people, too.) But this is at least not the whole story, because some property -- such as land -- wasn't created by its owners.
Say there's a large stretch of land that's commonly owned, such as the West of the U.S. once was. (Ignore the complications raised by the presence of American Indians.) The government decided to open the land for private ownership. It didn't have to do it; it could have kept it as a giant park, and no-one's property rights would have been harmed. But it gave or sold the land to people who didn't create it, thus limiting the freedom of action of all others.
The reason for this was incentive: If people have the right to exclude others from their land, they'll have more incentive to invest effort in improving the land -- build homes, plant crops, and so on. We could have had open parkland with everyone free to sleep and pick fruit anywhere, but few shelters or orchards. Instead, we limited people's freedom, and got more homes and hotels (though ones that cost money to sleep in) and agriculture (though you need to buy apples from people, not just gather them).
So far, the argument tracks copyright and patent law quite well. The theory of intellectual property is likewise that giving people the right to exclude others from new works or inventions will give people an incentive to invest effort in creating and inventing. We would have less legal freedom of action -- you'll be more limited in what you can do in your own office or garage -- but we'd have more wealth, because there'll be a lot more works and inventions, albeit ones that it may cost you money to use.
4. The rivalrous and the nonrivalrous. There is, of course, an important distinction: Only a limited number of people can sleep in your house, or eat your apples. If people were free to come on your land and consume your crops -- "rivalrous goods" -- then you (and the people whom you sell rights to) wouldn't have a place to sleep or food to eat. But if people were free to copy your book or reproduce your invention, you'd still be free to do the same yourself, since these items are "nonrivalrous." So no need for property law here, right?
But that makes sense only if you see property law as focused solely on securing the rights to use. If property law -- in land and in goods -- also legitimately protects the right to exclude, not just as a way of protecting the right to use but also as a way to give people enough incentive to invest time and effort, then intellectual property law does make sense even if such property is nonrivalrous.
Consider an example: Imagine that there are a few hundred farmers living out in relatively well-irrigated countryside. Each farmer can dig a well, which will amply serve the farmer and many nearby farmers; that's just the property of a well -- even a small well provides lots of water, much more than one farmer would need. Moreover, the water table is huge, and the farmers aren't going to exhaust it. But, it turns out, the well takes a lot of money to dig (the money goes for renting equipment and paying laborers).
Say that you create a well on your property, and start charging your neighbors, who don't have such wells, for access to it. Many of your neighbors are willing to pay; your well is closer and more convenient than other competitor wells. But some others just come and take the water for free. "This water is nonrivalrous," they say. "If I take the water, I'm not going to interfere with your or your customers' right to use it, nor will I really interfere with any work you do on your land on the way to the well."
You'd be upset, but that's not my concern. My concern is that if this starts happening, and other neighbors see that they can take water without paying, other farmers won't drill as many wells: They'll know that if they do spend the money to dig the well, they probably won't be able to recover this investment. Maybe they'll find some less effective and more expensive ways of getting payment (for instance, they may invest more money into putting up very high-tech fences -- technological self-help rather than reliance on law), but this will still mean many fewer wells built, and much more expensive water.
Even for the nonrivalrous good, destroying the right to exclude has taken away much of the incentive to invest. It hasn't taken away all the incentive; even destroying all property wouldn't take away all the incentive to invest effort. But it has taken away a lot, likely enough to make society on balance considerably worse off.
I give this as an example because the well is tangible property, not intangible property. Most of my pro-property readers would have no trouble concluding that the well owner should have the right to protect the property. But why? Here there's a situation where tangible property really is nonrivalrous. (There are other, more limited, examples of this, too, having to do with excess capacity in mostly empty theaters, airplanes, and so on, though there the excess capacity is much more limited, and removing the right to exclude eventually will remove the right to use.) Others' use of the well doesn't interfere with my right to use.
This scenario, I think, shows that there indeed is more to property than securing the right to use; there's also the need for an incentive to create new works (plus perhaps a moral right to have exclusive control of the fruits of one's labor, but actually I'm not relying on this here). And if this is so for tangible property, then this may be so for intellectual property too.
