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

No. 8} Are Patents and Copyrights Morally Jus1~fied? 851
The role of scarcity within the justice-as-order approach is
equally important, but leads us in an entirely different direction.
Rights to property are allocated precisely because the
scarcity of resources means that, without legal demarcation and
protection of rights, human beings would come into violent
conflict over these resources.
This relationship between justice-as-order and property
rights is what Hume is getting at when he argues that without
property there is no justice:
tT]ho’ I assert, that in the state of nature, or that imaginary
state, which preceded society, there be neither justice nor
injustice, yet I assert not, that it was allowable, in such a
state, to violate the property of others. I only maintain, that
there was no such thing as property; and consequently cou’d
be no such thing as justice or injustice.’ 5 ’
Scarcity in X-maximization arguments is the relevant factor
in deciding whether intellectual property rights should be recognized,
and if so, what form they should take. Scarcity in justice-as-order
arguments is the relevant factor in determining
when rights can or should be granted to resources over which
humans may come into violent conflict. Intellectual property,
however, does not have the “static” scarcity that tangible property
has, and therefore does not qualify as a locus of property
rights within justice-as-order arguments.’ 32 Two of us can think
the same thought, sing the same song, or use the same method
of making fishhooks without coming into violent conflict over
the thought, song, or method.Justice-as-order, then, is incompatible
with intellectual property rights.’ 33
V. PIGGY-BACKING ON THE RIGHTS TO TANGIBLE PROPERTY
One final argument for intellectual property rights, or at
least for copyright, deserves consideration before turning to
the foundation of a property-rights system consistent with liberty.
That is the argument that intellectual property rights can
be justified as “piggy-back” rights, logical extensions of the
131. D. HUME, A TREATISE OF HUMAN NATURE 501 (P. Nidditch rev. ed. 1978) (emphasis
in original).
132. Such objects, however, must be produced. In this sense they do share the kind
of scarcity relevant to the X-maximization arguments.
133. As I shall argue at the conclusion of this Article, justice-as-order is consistent
with—indeed it is the genus for—the self-ownership, liberty-based argumentfor property
that, as I have argued above, is incansutent with patentand copyright.