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

• 818 HarvardJournal of Law & Public Policy [Vol. 13
differing conclusions. This occurs because liberty and property
in this context may be irreconcilable; copyrights and patents
seem to be property, but theyalso seem to restrict liberty. One
would be hard-pressed, for example, to find two stronger defenders
ofliberty and property in Nineteenth Century America
than the abolitionist Lysander Spooner. and the Jacksonian
editorialist William Leggett. Yet on the subject ofintellectual
property rights, they each came to opposite conclusions:
Spooner steadfastly championed intellectual property rights
while Leggett advocated with equal force the unrestricted exchange
of ideas. Although they came to opposite conclusions,
each argued that his beliefs were consistent with his overall
stance in favor of liberty, private property, and freedom of
trade. 2
Sometimes the best developed arguments in support ofintellectual
property rights are advanced by relatively marginal authors,
like Spooner for example. This is because the great
pioneers of the philosophy of property rights wrote before
property rights for authors or inventors had become a popular
issue; it remained for lesser figures to mold the arguments for
intellectual property based on the property theories that had
been developed earlier by more prominent thinkers. Consequently,
while Locke, Hume, Kant, Hegel, and other philosophers
will figure significantly in this Article, attention will also
be devoted to later interpreters, who applied the ideas ofthese
and other great philosophers in new ways.
Intellectual property rights are rights in ideal objects, which
are distinguished from the material substrata in which they are
instantiated. 3 Much of this Article will therefore be concerned
with the ontology of ideal objects. This is because the subject
of intellectual property, indeed, the very idea of exercising
property rights over ideas, processes, poems, and the like,
2. See, e.g., Spooner, A Letter to Scientists and inventors, on the Science offustice, and Their
Right of Perpetual Property in Their Discoveries and Inventions, in 3 THE COLLECTED WORKS
OF LYSANDER SPOONER 68 (C. Shively ed. 1971); W. LEOOETF, DEMOCRATICK EDITORS-
AL5: ESSAYS IN JACKSONIAN POLITICAL ECONOMY 397-98 (L. White ed. 1984).
3. This catch-all category covers the subject matter of patents and copyrights, including
those for algorithms, computer programs, manufacturing processes, inventions,
musical or literaryworks, pictorial or other kinds of representations, sculptures,
designs, and more. The relevant difference between such goods and tangible goods is
that the former can be instantiated an indefinite number oftimes, that is, they arenot
scarce in a staticsense, whiletangible goods arespatially circumscribed andare scarce
in both the staticand the dynamic sense of the term.