Solveig (being brave, perhaps foolhardy) has undertaken a project to explain the views of Libertarians on IP.

This reminded me of a discussion that Adam Thierer and I had the other day, wherein he commented, correctly, that my views on IP are Lockean. That is, I believe that the creator of something, be it a crop, an artifact, or a song, has a moral right to it. The view usually juxtaposed to this is utilitarian - a belief that IP rights are created by the state to foster creativity, and that the state can thus chop them at will.

I am indeed Lockean, but actually I do not think the two justifications are in conflict. A powerful argument for adopting a Lockean view is utilitarian -- creating a general rule that creators have property rights in their creations is the only sensible way to make a society work, wherever one stands on the question whether it was their "Creator" that "endowed them with certain unalienable Rights."

What usually passes for "utilitarianism" in the nation's law schools is actually central planning. The Uts argue that the state can craft specific detailed rules that fine-tune rights rather than rules of general applicability that define and perfect the Lockean-based property rights. (See, for example, the law professors' brief in Eldred.)

The conventional wisdom in the law schools is also that this fine-grained utilitarian view is what motivated the Founders, who put the IP clause into the Constitution. This argument is simply wrong. The historical record is much more mixed, and the Founders had a pragmatic mixture of utilitarian and Lockean views.

Justice Ginsburg got it right in Eldred when she said (Footnote 18):

As we have explained, "[t]he economic philosophy behind the [Copyright] [C]lause ... is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors." Mazer v. Stein, 347 U. S. 201, 219 (1954). Accordingly, "copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge... . The profit motive is the engine that ensures the progress of science." American Geophysical Union v. Texaco Inc., 802 F. Supp. 1, 27 (SDNY 1992), aff'd, 60 F. 3d 913 (CA2 1994). Rewarding authors for their creative labor and "promot[ing] ... Progress" are thus complementary; as James Madison observed, in copyright "[t]he public good fully coincides ... with the claims of individuals." The Federalist No. 43, p. 272 (C. Rossiter ed. 1961). Justice Breyer's assertion that "copyright statutes must serve public, not private, ends" post, at 6, similarly misses the mark. The two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.

posted by James DeLong @ 8:40 AM | Liberty and IP

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