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

852 HarvardJournal of Law & Public Policy [Vol. 13
right to own and control tangible objects. Thus, Murray Rothbard
justifies what he incorrectly’ 34 calls “common-law copyright”
as amounting to “the author or publisher selling all
rights to his property except the right to resell it.” t35
Rothbard’s argument implicitly rests on the distinction
drawn by Kant between a “book” (or other object) as a material
thing, and a “book” as the work that is instantiated in a material
object but is capable of being instantiated in other such
substrata ad infinitum.’ 36 He extends his argument beyond the
realm of literature to include any artifact that incorporates or
instantiates an ideal object, whether a mousetrap (its design or
the process by which it was made), a map, or a dance step—
which is always materially instantiated in some way, whether in
a performance on some piece of property, or through a description
in a book, film, or other device.
This would extend a copyright-type of protection to the subject
matter of patents as well. Thus, argues Rothbard:
suppose that Brown builds a better mousetrap and sells it
widely, but stamps each mousetrap ‘copyright Mr. Brown.’
What he is then doing is selling not the entire property right
in each mousetrap, but the right to do anything with the
mousetrap except to sell it or an identical copy to someone
else. The right to sell the Brown mousetrap is retained in
perpetuity by Brown.‘~
134. See Abrams, The Hi.stonc Foundation ofAmerican Copyright Law: Exploding the Myth
of Common Law Copyright, 29 WAYNE L. REV. 1119 (1983).
155. M. ROTHBARD, THE ETHICS OF LIBERTY 144 (1982) (Rothbard seems to have
made aslip here; he does not mean the right to “resell” the property, but the right to
copy it).
136. See Kant, supra note 88 and accompanying text.
137. M. ROTHBARD, supra note 135, at 123. Rothbard seems to have confused what is
beingmade the subject ofa property right. Clearly he cannotmean theright to sell the
object, for then nothing that was copyrighted could be resold, and the market system
would either grind to a halt or copyright would become adead letter. He must mean
the right to reproduce, rather than to resell. Note that the argument Rothbard presents
in The Ethiss of Liberty represents a shift from the argument presented in his earlier
treatise on economics, M. ROTHBARD, MAN, ECONOMY, AND STATE: A TREATISE ON Eco-
NOMIC PRINCIPLES 654-55 (1970), in whichhe attacks patents as monopolies, but justilies
copyrights as aform of implicit contractual agreement not to copy. Such an implicit
agreement differs from a right reserved by the creator. “(T]he inventor could mark his
machine copyright, and then anyone who buys themachine buys it on the condition that he
will not reproduce and sell such a machine for profit. Any violation of this contract
would constitute implicit theft Id. (emphasis original). Rothbard’s more recent
proposal at least avoids themost obvious problem with his earlier position: what right
would the originator haveagainst acopier who did not buy the item, but simply saw it,
heardof it, or found it. There could be no agreement, implicit or explicit, on thepart
ofsuch acopier, and henceno obligation to refrainfrom copying. The later“reserved
right” position allows the right to be reserved regardless ofwho comesinto possession