I don't believe any reasonable person would disagree that there are distinct differences between real and intellectual property. PFF Senior Fellow James DeLong, director of our Center for the Study of Digital Property, said for much of his career he had viewed them as entirely distinct, but that over time he has come to see "very important continuities" between the two. A recurring theme at the Milan conference was the issue of property rights, and how those rights should be enforced, or whether they should even be recognized. In fact, there seemed to be in the audience an alignment between the so-called "Copyleft" that wants a commons of free goods and libertarians who don't believe property rights should exist and instead would rely on contract law. As what Ray calls a "practical libertarian," I was unnerved by this alliance, but repeatedly the conference speakers pointed out how it was all but impossible to talk about contract law without property rights.

Jim threw a bone to the libertarians, noting that property rights rules tend not to come first from government, but from parties seeking to protect their interests. "This process is now taking place in cyberspace," he said. In this reality, property rights form a basis for societal cooperation - he cited an example of miners negotiating water rights in the American West - and those rights are later codified by law to ease enforcement.

This didn't seem to sit well with Professor Pascal Salin of the Universite Paris Dauphine. Salin is the rarest of breeds, a French libertarian (I think with him in Milan it left the entire nation of France with no one of that political ilk, a frightening thought indeed). Salin's speech was brilliant and insightful, and I don't claim to have processed it all. But I was not alone in being struck by his views on intellectual property. "Many people believe there is no reason to extend real property rights to intellectual property rights," Salin said on a panel after Jim's, and he seemed to be speaking for himself. He said when government protects intellectual property rights, it is "creating exclusions" that creates barriers to innovation. While acknowledging difficulties in areas such as pharmaceuticals, where there are extremely high fixed costs of development but nearly nonexistent marginal costs of production (this example was cited by PFF Vp-Research Tom Lenard), Salin then said: "Intellectual property rights given by legislation should not exist." Instead, such protection should be negotiated by contracts. His position was heartily endorsed by a Swiss libertarian in the audience.

The thesis was provocative, and appealing if one remains in a theoretical world free of concerns about intellectual property theft or bad actors. But Salin found his theory punctured by an unlikely slayer, the European Union's Simon Bensasson. As I will later blog, Bensasson managed to alienate both the Copyleft and pro-patent advocates with his luncheon speech on government's role in software procurement, but at the end of the conference he struck a middle ground on intellectual property rights as a legal entity.

PFF Senior Adjunct Fellow Solveig Singleton, who has a long legacy in the libertarian movement herself, took the opportunity in the last panel to revive the debate about substituting intellectual property law with contract law. As is Solveig's diplomatic way, she didn't assert a position, but rather sought reaction from attendees. The most telling one came from Bensasson. "I don't understand contract law without property law," he said. Each supports the other, he maintained, and in fact are complementary. The answer seemed agreeable to most everyone in attendance - except for our Swiss libertarian friend, who clung admirably if somewhat naively to his theoretical world in a spirited discussion on the terrace overlooking the Duomo Cathedral after the conference.