Tom Bell and Glen Whitman have been debating IP issues on Agrophilia. Since Agrophilia doesn't have a subject index, I've carefully compiled the links here, in order.

1) Tom Bell on IP as a natural right.

2) Glen's response, on IP as a natural right.

3) Tom's further comments on IP as a natural right. Here it gets interesting. He notes that he doubts IP is a natural right because of its recent statutory origins and the fact that it is not needed to control violence. Ah... but, I think, perhaps it is needed to reduce other kinds of wasteful conflicts and allow other kinds of desireable transactions? Let's see what Glen says.

4) Glen's reply: He notes that "property rights" can be a lot more fluid than Tom is allowing above.

5) Tom replies, that the difference between rights to rivalrous goods (physical goods) and nonrivalrous goods (intellectual property) is too great to call IP "property rights." Hmmm... That seems to me to reduce the debate to a semantic one, over whether IP gets labelled "property" or something else--it doesn't go at all to the question of whether IP is the sort of right we should have. I think it is enough like physical property to call it "property" for want of a better term--but if forced at gunpoint to concede that it isn't, I'd be happy to do so--I still think it is a necessary foundation for the market in books, movies, photos, ceramics, etc.

Here is more of Tom on this subject. Here he is explaining that he doesn't think one could have IP in a state of nature, and thus for him it doesn't qualify as a natural right. Hmmm... well, it's actually pretty hard to get *any* kinds of rights in a state of nature. But yes, certainly, historically, we do get physical property rights first and IP later. So maybe IP is "natural" to a later state of economic evolution? There weren't laws against infanticide in ancient times either...

And back to Glen. He notes here that the debate is evolving into one over whether evolved law (case law) is inherently better than statute law; the question becomes whether IP would have developed without a statute. But it is really beside the point, it doesn't answer whether IP is a good thing today.

Legal systems for better or for worse tend to start with case law and then move towards code. They... just do. Roman law did, so have a lot of other legal systems. It seems to be a natural feature of legal systems; as the sheer bulk of case law increases it become unmanageable, and the human impulse to condense and reduce to rules takes over. This has its drawbacks. But a constant yearning back to the days of case law seems futile, though certainly it is useful as a reference point, it can be taken too far.

Glen further notes that all rights are limited by other rights, in a continuation of the debate about IP versus physical property.

I'll stop here. I expect there will be other posts in this series later.

posted by Solveig Singleton @ 3:27 PM | Liberty and IP

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