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

834 HarvardJournal of Law & Public Policy [Vol. 13
they became his private right.”~
If the hinge to a Lockean labor theory of property, then, is
ownership in ourselves (as I believe it is), the fact that his two
additional supplementary arguments point toward a form of
“property” that would infringe on our ownership in ourselves
(as copyrights and patents do) indicates that they should be detached
from the argument from self-ownership as contradictory
to it. If one wished to insist on thejustice of intellectual property
claims, ownership rights in ourselves would have to be rejected
as a foundation for property and independent
arguments offered for rewarding moral desert based on labor.
This is a difficult task, and one that has not been adequately
undertaken, for reasons that Hume, Kant, and others have
pointed out: desert has no principle, that is, no readily available
and intersubjectively ascertainable measure. 65 Such an inherently
subjective standard provides a poor foundation for the
abstract and general rules that guide conduct in a great society.
66 In a great society, not all labor is rewarded; 67 and not all
of the rewards to labor are in the form of property rights. 68
Our ownership rights in ourselves are based on our natural
freedom, and are indeed synonymous with it; they cannot rest
64. Id. at 830.
65. As DavidHume notes,
‘Twerebetter, no doubt, that every onewere possess’d ofwhat is most suitable
to him, and proper for his use: But besides, that this relation offitness may
be common to several at once, ‘tis liable to so manycontroversiesandmen are
so partial and passionate injudging of these controversies, that such a loose
and uncertain rule wou’d be absolutely incompatibLe with the peaceof human
society.
D. HUME, A TRa~vnsEOF HUMAN NATURE 502 (P. Nidditch ed. 1978); see also F. HAYEK,
THE FATAL CONCEIT: THE ERRORS OF SOCIALISM 78-75 (1989).
66. Frank Knight has characterizedthe patentsystem as “an exceedingly crudeway
of rewarding invention,” for
as the thing works out, it is undoubtedly a very rare and exceptional case
where the really deservinginventorgets anything like a fair reward. Ifanyone
gains, it is somepurchaser ofthe invention or at best an inventorwho adds a
detail or finishing touchthat makes an idea practicable wherethe real work of
pioneering and exploration has been done by others.
F. KNIGHT, RISK, UNCERTAINTY, AND PRoFIT 372 (1921).
67. Indeed, often the greatest rewards go to those who have—inthe usual sense of
the word—labored theleast. We may owemore to the laziest among us: to the person
who was too lazy to carry loadsby hand and cameupon the idea of using a wheelbarrow,
for example. Attempts to reducesuch differentials in productivity to asubstrata of
undifferentiated labor are inherendydoomed, as the failed attempt ofMarxist systems
indicates.
68. The rewardto labor for inventiveness in marketing, for example, is greatersales
or market share, not property rights in marketing techniques or (least plausibly) in
market share.