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

No. 8] Are Patents and Copyrights MorallyJus4fied? 821
each of these arguments’ internal structures and then attempt
to apply them to ideal objects. In part II, I will takeup the labor
theory of property, and in part III, the personality theory. In
part IV, I will address utilitarian concerns, but, as I have stated,
only briefly. Inpart V, I will discuss the attempt to derive intellectual
property rights indirectly, that is, “piggy-backing” on
rights to tangible property. The concluding sections ofthe Article,
parts VI and VII, present my own case for a private property
system that does not recognize copyrights and patents. 8
I make no claims to an exhaustive taxonomy of property
rights theories. Other important theories ofpropertyand other
theoretical concerns are not dealt with here, because I have
chosen to concentrate on those most relevant to the problem of
intellectual property. Further, I will have little to say about the
actual historical genesis of intellectual property; while intellectual
property originated in grants of monopoly from the state
and received its legitimacy from that source, the,public debate
over its legitimacy shifted radically in the late Eighteenth Century.
As Fritz Machiup and Edith Penrose note, “those who
started using the word property in connection with inventions
had a very definite purpose in mind: they wanted to substitute a
wordwith a respectable connotation, ‘property,’ for a word that
had an unpleasant ring, ‘privilege.’ “~ Given this shift in the
popular conception ofpatents and copyrights, I intend to question
whether they are legitimate forms ofproperty at all.
II. LABOR AND THE NATURAL RIGHT TO PROPERTY
Lysander Spooner was surely one of the most remarkable
American men of letters of the Nineteenth Century. He was a
constitutional scholar, a fervent crusader for the abolition of
slavery, an entrepreneur who succeeded through competition
in forcing the American postal service to lower its rates, a philosopher,
a writer on economic matters, and more,
Spooner begins his book, The Law ofIntellectual Property: orAn
Essay on the Right ofAuthors and Inventors to a Perpetual Property in
T/zeirldea.s,’°by establishing the status of immaterial objects as
8. As will be demonstrated, however, the approachI set forth would include trademarks
and tradesecrets as legitimate. Trademarks and trade secrets have roots in the
common lawand enjoy acontractual or quasi-contractual moral grounding.
9. Machlup & Penrose, The Patent Controversy in the Mneteenth Century, 10 J. ECON.
HIs~r.I, 16 (1950).
10. Spooner, The Law of Intellectual Property: or An Essay on the Right of Authors and In-