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

No. 3] Are Patents and Copyrights MorallyJvstifi~d7 823
ideas arejust as much property as tangibleobjects. Ifideas preexist
in nature and are merely discovered (as, for example, scientific
principles ornaturally occurring substances),’ 7 then “he
who does discover, or first takes possession of, an idea, thereby
becomes its lawful and rightful proprietor; on the same principle
that he, who first takes possession ofany material production
ofnature, thereby makes himself its rightful owner.” 18 On
the other hand, if ideas are not pre-existing in nature, but are
the products of an active intellect, then “the right of property
in them belongs to him, whose labor created them.” 9
Spooner spends the rest ofthe book defending his argument
against objections. Against the objection that ideas are incorporeal,
he argues that other incorporeal entities can also be objects
ofproperty rights, such as labor, a ride, one’s reputation
and credit; even the right to property is itself, inalienableproperty.
To the objection that property rights in ideas cease on
publication or communication of an idea to another (“because
that other person thereby acquires as complete possession of
the idea, as the original proprietor” 20 ), Spooner responds that
it falsely assumes that “if a man once intrust his property in
another man’s keeping, he therebyloses his own right ofproperty
in it,” 2 ’ Possession is not equivalent to the right ofuse, for
“where one man intrusts his property in another man’s possession,
the latter has no right whatever to use it, otherwise than
as the owner consents that he may use it.” 22
Against the objection that some ideas are social in nature,
Spooner argues that the role of society in the production of
ideas is nil, Ideas are created by individuals, and only individuals
have rights to them. As Spooner counters, “Nothing is, by
its own essence and nature, more perfectly susceptible ofexclusive
appropriation, than a thought. It originates in the mind of
des merelyas tools... .There is, therefore, no such thing as the physical labor
of men, independently of their intellectual labor.
Id. 17. See Spooner, supra note 2, at 10.
18. Sd. at 26. Note that this would go farbeyond thetraditional scope of the patent
laws ofthe United States, whichexplicitly exclude discoveries ofscientificor mathematical
laws or of naturally occurring substances from patent protection. Recently, however,
the U.S. Patent Office has been awarding patents to discovers of useful
mathematical algorithms, a trend that would surely have pleased Spooner.
19. Id. at 27.
20. Id. at 42 (emphasis in original).
21. Id.
22. Id. at 52.