Libertarianism can be different things to different people. Trying to define it, or characterize it, will leave some libertarians at odds with one another. What follows will isolate me from most libertarians. It is a defense of intellectual property rights (IPR) based on the thesis that there is no normative distinction between IPR and real property rights (RPR). I will use Butler Shaffer's short polemic for the Mises Institute, "A Libertarian Critique of Intellectual Property," as my primary foil as it encapsulates many of the arguments against IPR that libertarian thinkers embrace.
Where Shaffer ends I will begin. At the end of his polemic he boils down his rejection of IPR on the ground that a libertarian cannot endorse a right that is created and enforced by the state. The premise that IPR are created by the state is false, while the premise that IPR should be rejected because they are enforced by the state is unpersuasive. This essay will unfold in three parts, with the first demonstrating why Shaffer’s first premise is false, the second section demonstrating why his second premise is unpersuasive, and the third section confronting other objections to IPR.
Section I: Intellectual Property Rights are not created by the state
The only means through which one may defend RP, and not IP, is to say that the manner in which man exerts ownership over RP has nothing to do with his mind. RP and IP are both products of the same process, even though they take different forms. It doesn’t require a great imagination to see this, but because it is an unfamiliar formulation I will elaborate by means of a familiar source: John Locke. A Lockean justification of private property provides a sound defense of IPR by building through a property of conscience.
Unless we assume that man’s arms and legs move without cognition, man’s labor is a product of his mind.
In chapter 5 of his Second Treatise on Government Locke gives his seminal account of property rights. It runs thus: man alone is in possession of himself, and through his drive and ingenuity he extends his dominion beyond himself. Man is in possession of himself because no other individual gave him his will, conscience, or abilities; thus, no one else can exert dominion over him except that to which he consents.
Man takes possession of property when it lies in common and he mixes his labor with it. Simply put, if there is unowned property available, and someone takes it out of its natural state by mixing his labor with it, that property becomes his so long as there is enough left over for others to sustain themselves, for that man has no right to deprive others of providing for themselves. An acorn becomes mine if it is lying on the ground or staying in the tree, and I take it out of its natural state by mixing my labor with it — plucking it from the tree or picking it up from the ground. The mixing of labor makes it mine because that acorn is no longer what it had been. My labor made it something that it had not previously been, by virtue of my efforts. This means that nobody else can stake a claim to it without depriving me of the fruits (or nuts, in this case) of my labor.
The Lockean argument gets a bit more complicated, but in terms of how common property becomes private, this is it. That is why Locke and his intellectual heirs consider private property paramount for the preservation of liberty, for there is no real distinction between man and his property, since property is nothing more than the extension and physical manifestation of a man's liberty.
As it relates to IP, a Lockean position is easy to extract. Unless we assume that man’s arms and legs move without cognition, man’s labor is a product of his mind. Without cognition I would not cut down trees and build a shelter, nor would I engage in any productive activity that would lead to property ownership. Whether it’s writing a book or building a widget, property originates from man’s will and ability to produce.
If the process by which IP is protected is conducted poorly, that is simply the government doing a necessary job poorly and not evidence that the job is unnecessary.
James Madison has a more expansive, and sometimes confusing, articulation of property rights, but he understands them as Locke does. Madison uses property to describe what man possesses within himself (what Locke would call will or labor), and those external objects that become man's possessions through the mixing of himself with them (land, hogs, etc.). This formulation is articulated by Madison in a 1792 essay entitled "Property." Madison writes:
In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions. Where there is an excess of liberty, the effect is the same, tho' from an opposite cause. Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.
We may conclude that protecting property, broadly understood, is the sole object of government for both Madison and Locke.
Somebody stealing my IP is the same as someone stealing my RP, particularly if IP is what I use to make a living. If the market for my book is 10,000 people, then someone who resells my book, or makes 10,000 copies it and sells them without my permission, has shrunk the market for me, the originator and creator of the book. This is no different from someone breaking into my shop and stealing 10,000 widgets and selling them on the black market when the market for the widget is 10,000 people. In either instance my ability to make a living through my labor has been denied by someone who illegitimately used the product of my labor without my consent. In simple terms: my right to life, liberty, and property has been denied. Nothing gives someone else the right to capitalize on my labor without my consent, for without my labor that product would not be in existence. These considerations give me sole ownership of the property if we follow the Lockean formulation of property rights.
Section II: Rights and the State
It is not a defect of IP that it needs the government to enforce it; it is the fault of libertarians if they cannot accommodate a necessary and just idea, such as IP, without government enforcement. If libertarians reject IP on the ground that it needs government to enforce it, then we have not evaluated IP on its merits but merely through a heuristic defined by ideology rather than logic.
If the process by which IP is protected is conducted poorly, that is simply the government doing a necessary job poorly and not evidence that the job is unnecessary. The focus should be on how to correct what’s wrong, not how to eradicate protections for property. Government is legitimate when it protects life, liberty, and property, and illegitimate when it does not. That does not mean that life, liberty, and property are illegitimate ends when the government does a poor job protecting them. To reject the ends because the means are faulty is a logical error.
Furthermore, libertarians who embrace RP cannot reject IP on enforcement grounds, for RP also requires government enforcement. Perhaps in idealized settings, or at least in smaller, more communal settings than the current nation-state model, RP would not require the government for protection. But we don’t live in those scenarios and must therefore recognize the reality of the situation. We can certainly debate the degree to which the government protects RP well, the means through which it does so, and the externalities associated with government protection of RP, but I don’t think anyone would say that if the police in every city were shuttered up tomorrow, crime would be reduced significantly the following day. In today’s reality, RP requires government protection just as IP does. Thus, unless one is willing to reject RP on these grounds one cannot also reject IP for the same reason.
Section III: Remaining Objections and Rebuttals
Shaffer objects to those who say that IPR promote creativity by protecting the products of one’s creative endeavors. It is true that IPR do not make me more creative, but IPR protection may provide incentives for creative activities rather than other activities that would be more profitable. If I am a musician who is unable to profit from my music because others can steal my ideas, I will have to find another job. This doesn’t prevent me from being creative, but it does reduce my incentive to do so and it impedes my ability to dedicate the necessary time to creative endeavor.
Shaffer uses the Roman aqueducts and the Egyptian pyramids as examples of human achievements in ingenuity and creativity that occurred without IPR. What Shaffer fails to acknowledge is that these were state-sponsored projects that would not have been realized without financing and organization from a large state. Similarly, while Michelangelo did not require IPR to produce his art he did require a wealthy patronage to support him and his products financially. IPR is one reason we no longer have to rely upon a patronage system in the arts and literature.
We must not deny producers security in their life, liberty, and property for fear that the authority we must rely upon to do so may turn against it.
Shaffer endorses the claim by Paul Feyerabend that “science is an essentially anarchistic enterprise” to demonstrate that an open exchange of ideas is beneficial for scientific and artistic achievement. But the passage from Feyerabend goes on to stipulate that “theoretically anarchism is more humanitarian and more likely to encourage progress than its law-and-order alternatives.” Shaffer conveniently ignores the operative term “theoretically” and thus fails to explore the reality of our world and defaults to the theoretical without acknowledging having done so. Shaffer, and all those who endorse stripping producers of their ownership rights, should recognize that producers have bills to pay and those who steal their products deprive them of their ability to provide for themselves through the outcomes of their labor. Moreover, thieves do exist, and having a means to guard against them is necessary albeit unfortunate.
In practical and theoretical terms there is no meaningful distinction between real property and intellectual property. If libertarians accept government protections for real property then they must too accept them for intellectual property if consistency is to be maintained.
I am sympathetic to the concern that when we ask the government to protect us it enfeebles us potentially and opens the door for the government to inch into other areas of our lives. But, the potential does not have to be realized if we do not permit it. It is possible to restrain and confine the government to those means and ends that we think most appropriate. Thus, we must not deny producers security in their life, liberty, and property for fear that the authority we must rely upon to do so may turn against it. We must instead opt for just government rather than reject it outright until such a time comes that we live in a world of entirely honest men and women.
With the permission of the author, a reply to this essay has been invited from Wayland Hunter; it is available here.