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

NO. ~J Are Patents and Copyrights Morally Ju,ct~fid? 855
by contract or by a fiduciary relationship to keep the secret confidential,
then the original proprietor of the secret has no
grounds forlegal action against others who would duplicate his
product or otherwiseuse what was previously secret. If a chemist
for the Coca-Cola Company were to reproduce the formula
for Coca-Cola (a trade secret, unprotected by patent) on leaflets
and drop them over New York City, the Coca-Cola Company
would have uncontestable grounds for (drastic) legal
action against the violator oftheir secretand any ofhis conspirators,
but not against all those on whom the leaflets fell who
proceeded to duplicate the firm’s production efforts. Similarly,
independent inventors would be immune from legal action. If
the proprietor ofthe trade secret were unable to show that another
user had improper access to his product, his production
process, or some other relevant aspect of his business, then he
has no legal claim against the independent inventor. Thus, an
ideal object can be constrained within a contractual nexus by
property rights, but once that ideal object has somehow escaped
the nexus, it can no longer be restrained by force oflaw.
Such an approach is fully consistent with the property rights
regime set forth in the remainder of this Article.
VI. JUSTICE AND THE RIGHT TO PROPERTY
Having offered criticisms of various property rights claims, it
is incumbentupon me to offer an alternative argument that will
establish property rights to tangible objects while denying
them for ideal objects.
As noted above, liberty-based arguments for property’ rights
are fundamentally hostile to intellectual property claims, for
patent and copyright monopolies interfere with the freedom of
others to use their own bodies or their, own justly acquired
property in certain ways. Establishing a liberty-based right to
self-ownership would create the foundation for property in tangible
objects while excluding property in ideal objects, for the
latter amounts simply to controls placed on the use of our own
bodies and on the use ofour legitimately acquired property.’ 43
148. But see Gordon, An Inquiry Into the Merits of Copyright: The Challengeof Consisteney,
Consent, and Encouragement Theoty, 41 SI-AN. L. REV. 1843 (1989). Arguing against my
earlier essay which was critical of patents and copyrights (see Palmer, supra note 7),
Gordon agrees that intellectual property claims are restraints on other property rights
but responds, in Hohfeldian and positivist fashion, that “All entitlements limit each
other” Gordon, supra at 1428.