Interpretive Myths- Intellectual Property

Intellectual Property (IP) is currently commonplace in western countries, like the United States. The first defense of IP that I was familiar with was provided by Ayn Rand. Unlike some of Rand’s stances, I did not necessarily agree, and did not look further into the topic. However, a couple of weeks ago I listened to an episode of the Libertarian Christian Podcast, in which the guest presented a comprehensive view against intellectual property that I had never been exposed to. I Purchased and read Stephen Kinsella’s book, Against Intellectual Property. Kinsella successfully convinced me that arguments for intellectual property are bogus, and in my own wording, along with being an interpretive myth, IP has and continues to be harmful where it is in place.

Kinsella is an actual Intellectual Property lawyer so his knowledge of IP likely goes far more in-depth than this book. For those who don’t know much about IP, Kinsella begins by summarizing it and various laws. Kinsella explains, “IP rights are rights to intangible things–to ideas, as expressed (copyrights), or as embodied in a practical implementation (patents).” Intellectual Property is embodied in Patents, Copyrights, TradeSecrets, and Trademarks, which are all slightly different, but all assume a right to a monopoly in ideas.

There are two pro-IP arguments:Natural Rights, and Utilitarian.

Libertarian, natural rights proponents of IP include, Galambos, Schulman, and Rand. Natural rights proponents argue that ‘creation of the mind are entitled to protection just as tangible property is’ due to a theory that since one owns ones labor, one has a natural law right to the fruit of ones labor. Kinsella proves this to be false, pointing out that property rights do not exist because of labor, but rather the homesteader or ‘first occupier’ has the initial claim to property. If it were true that one own’s the output of one’s labor, than the Burger King employee that trades his labor for a wage should also own the burger that he makes. He doesn’t, that burger belongs 100 Percent to the customer who paid for it.

Prominent among utilitarian Intellectual Property advocates is federal judge Richard Posner. Kinsella argues, “The utilitarian argument presupposes that we should chose laws and statues that maximize wealth and utility” (whether or not they are morally correct). The Utilitarian argument holds that due to Copyright and Patent laws there will be an incentive for people to create art and inventions, since they will be able to hold a monopoly on their ideas. Even if the ends of infringing upon tangible property rights justify the means. Even if one holds that the Ends Justify the Means, it is far from conclusive that IP causes greater prosperity. Actually, a free spread of ideas, with improvement upon those ideas, would likely cause much greater prosperity.

So Intellectual property shouldn’t exist, but what is it’s real harm? Property laws are a way to intermediate conflict for scarce resources. Tangible property is scarce, and the first occupier or the person who has traded for or inherited property owns it. Intellect is not scarce, and it is impossible to truly determine who was the first occupier of an idea. Thus Intellectual Property creates artificial scarcity. In order to exist, Intellectual Property grants people control of other people’s tangible property. For example, if person A digs the first well, but then patents building a well, Person B wishes to build a well on his property, but his property rights are violated because he is not allowed to use his own property as he desires. It is actually a critical facet of Libertarianism, that people should be allowed to use their own property in whatever way they desire as long as it does not harm other people’s lives or property.

In his conclusion, Kinsella states, “We see, then that a system of property rights in ‘Ideal objects’ necessarily requires violation of other individual property rights, e.g. to use one’s own tangible property as one sees fit.” Intellectual Property was established in the United States constitution, and has widely been accepted ever since without much question. Stephen Kinsella has effectively questioned these government granted monopolies, and has effectively debunked an interpretive myth.


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