By Daniel Takash, Brink Lindsey

This is the introduction to a new paper examining the moral foundation for intellectual property laws, as well as a roadmap for reform.

Full paper here.

Supporters of strong and expansive copyright and patent laws argue that these laws advance important policy goals—namely, encouraging artistic expression and technological innovation. Although these claims are widely accepted among the uninitiated, many experts are highly critical of how the laws actually work in practice.

Copyright and patent supporters deflect such criticism by buttressing their frequently spotty empirical case with sweeping moral claims. Specifically, they argue that copyright and patent laws are needed to protect “intellectual property” against “theft” and “piracy.” Intellectual property, they contend, is an integral part of the overall system of private property that is the legal foundation of the market economy and modern prosperity. Any criticism of these laws or proposal to scale back the scope or level of protections they afford is accordingly portrayed as a defense of unjust conduct and an attack on the whole institution of private property.

The moral case for “intellectual property” has adherents across the ideological spectrum, but it is especially influential among conservatives. Given their deep ideological commitment to robust private property rights generally, conservatives are particularly inclined to support strong protections for copyrights and patents if they see them as a species of property.

In this paper we scrutinize the moral case for copyright and patent laws and find it wanting. “Intellectual property” is a misleading description of those laws in their current form; it suggests a deep continuity between them and the larger system of private property in physical objects that simply does not exist.

Patents and copyrights obviously do create rights that can fairly be called property as a matter of positive law: they grant the holders certain rights with respect to valuable goods (the right to prevent the unauthorized copying of copyrighted works or patented inventions) and those rights are transferable. This fact, alone, however, cannot ground the moral claim by supporters of intellectual property that they have, not merely the law and not merely expediency, but fundamental justice on their side.

Just because the positive law creates property rights does not mean those property claims are supported by justice. After all, the system of awarding taxi medallions also creates a kind of transferable property right, and nobody thinks that this fact alone makes restricting access to the taxi market a good idea. The moral defense of intellectual property amounts to a claim of “natural right”—that patent and copyright holders deserve to assert the rights they enjoy independent of whether those rights are actually protected under positive law. The mere fact that the positive law has created transferable rights does not prove that case.

Moral arguments come in two broad modes: deontological, or those concerned with notions of inherent fairness and desert; and consequentialist, which uphold moral principles for the real-world fruit they bear. Moral reasoning inevitably flips back and forth between these modes as conceptions of what is right and fair are never divorced cleanly from considerations of consequences, and criteria for what count as good consequences often depend on intuitions about right and fairness.

The moral case for intellectual property is made in both modes. The consequentialist case claims a fundamental continuity between patent and copyright laws and private property generally in that both function to incentivize the efficient allocation of resources by “internalizing externalities”—that is, making economic actors absorb both the costs and benefits of their actions. The deontological argument, extrapolating from the philosopher John Locke’s justification for the initial appropriation of private property, asserts that patent and copyright holders—like Lockean homesteaders in the state of nature—“mix their labor” with the physical world and thereby establish a right to the material fruits of their labors.

Both modes of justification have a certain superficial plausibility. But when subjected to sustained critical scrutiny, they fail to hold up. Admittedly, there are defensible moral intuitions on which to make a case for limited forms of copyright and patent protection. But as we will show, copyright and patent laws grounded in that secure moral foundation would look dramatically different than those in force today.

Read the full paper here.