A couple weeks ago I promised a series on libertarian thought on IP. This is the second in that series, interrupted by our Aspen summit.

Today I want to outline the contention that IP is inherently incoherent because it is impossible to have property rights in ideas.

Rod Long's paper is as good a place as any to visit to see one version of that argument in action.

Essentially, the argument boils down to this (I'll go with a copyright exampe--the arguments are similar for patent). Suppose I write a poem, and it is copyrighted. You read it. Your memory of the words of that poem exists in your head. How can I coherently claim to own a thought in your head? Suppose furthermore you decide to write down the poem from memory on your sheet of paper with your pen. My copyright over the poem then amounts to a claim to be able to direct what you do with your own pen and paper. Copyright is thus inconsistent with plain old physical property rights.

The difficulties I see with this line of argument is that a) copyright does not in fact consist in a claim on the thoughts in other people's heads, so long as they stay in the head and are not published; b) It does in some contexts amount to a claim on what you may do with your own pen and paper (a personal copy of the poem would be allowed, publication would not be). But it begs the question to assume that the physical property rights ought to be absolutely exclusive in all contexts. That is, in fact, what the debate is about.

Richard Epstein has an interesting point here... he notes that many libertarians that are opposed to copyright or patent on the ground that rights in ideas are incoherent, also propose that contractual rights could be an alternative to IP. But if it is coherent to have a contractual right in ideas, there seems to be no good reason one could not have an equally coherent property right.

Next week, some other aspect of this debate. I'm not sure what yet.

posted by Solveig Singleton @ 8:46 AM | Academia, General, Liberty and IP, Physical Property

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