Are Patents and Copyrights Morally Justified? - Tom G. Palmer

No. 3] Are Patents and Copyrights Morally Juct~fied? 827
to the production process offactors ofproduction or from entrepreneurial
activity. Following what he calls the “finderskeepers”
rule, he argues that “a producer is entitled to what he
has produced not because he has contributed anything to its
physical fabrication, but because he perceived and grasped the
opportunity for its fabrication by utilizing the resources available
in the market.” 39 He contrasts “ownership-by-creation”
with “ownership-by-just-acquisition-from-nature” and argues
that the former better justifies entrepreneurial profit because
“until a resource has been discovered, it has not, in the sense
relevant to the rights of access and common use, existed at all.
By this view it seems plausible to consider the discoverer ofthe
hitherto ‘nonexistent’ resource as, in the relevant sense, the
creator ofwhat he has found.” 4 °Clearly, if one were to substitute
such an “ownership by creation” theory (or “finders-keepers”)
for “ownership-by-just-acquisition-from-nature,” then
the case for intellectual property rights would become much
more plausible.
All of these lines of argument strongly emphasize the moral
desert ofthe creator, inventor, or author. 4 ’ They are consistent
with the argument ofJohn Locke in his Second Treatise that no
one, so long as there was “as good left for his Improvement,”
should “meddle with what was already improved by another’s
Labour; If he did, ‘tis plain he desired the benefit of another’s
Pains, which he had no right to . . ,“~ When one has improved
what was before unimproved (or created what before
did not exist), one is entitled to the result ofone’s labor. One
deserves it.
Objections to Labor-Based Moral Desert Theories
Arguments such as Spooner’s and Rand’s encounter a fundamental
problem. While they pay homage to the right of selfownership,
they restrict others’ uses oftheirown bodies in conjunction
with resources to which they have full moral and legal
rights. Enforcement ofa property right in a dance, for example,
39. Id. at 196.
40. Id. at 212-13.
41. Moral desert plays a powerful role in many theories of property. According to
Lawrence C. Becker, “the concept of desert is constitutive of the concept of morality
per se L.C. BECKER, PROPERTY RIGHTS: PHILOSOPHIC FOUNDATIONS 51 (1977).
42. J. LOCKE, Two TREATISES OP GOVERNMENT, 309 (P. Laslett ed. 1970) (3d ed.
1698). *
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