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

824 HarvardJournal of Law & Public Policy [Vol. 13
a single individual. It can leave his mind only in obedience to
his will. It dies with him, if he so elect.” 23 Even granting the
truth of the objection, he asks, do we deny private ownership of
tangible objects because their creators availed themselves of
pre-existing knowledge, or cooperated with others in their
production? 24
Spooner also refutes the objection that ideas are nonrivairous
in consumption; that is, that the use by one person of
an idea does not diminish anyone else’s use, and that ideas are
therefore unsuitable candidates for the status of property, by
showing its consequences if applied to tangible property. For,
if it be a true principle, that labor and production give no
exclusive right of property, and that every commodity, by
whomsoever produced, should, without the consent of the
producer, be made to serve as many persons as It can, without
bringing them in collision with each other, that principle
as clearly requires that a hammer should be free to different
persons at different times, and that a road, or canal should
be free to as many persons at once, as can use it without
collision, as it does that an idea should be free to as many
persons at once as choose to use it. 25
The key to Spooner’s approach is to deny those defenses of
property that rest on the joint operation of scarcity, the law of
the excluded middle, and the desirability of avoiding violent
conflict. He writes, “The right of property, or dominion, does
not depend, as the objection supposes, upon either the political
or moral necessity ofmen’s avoiding collision with each other,
in the possession and use ofcommodities.. ~ Rather, “the
right of property, or dominion, depends upon the necessity
and right of each man’s providing for his own subsistence and
happiness; and upon the consequent necessity and right of
every man’s exercising exclusive and absolute dominion over
the fruits of his labor.” 27 Similarly, the argument that the propagation
of an idea is like the lighting of one candle by another,
illuminating the former without darkening the latter, would
“apply as well to a surplus offood, clothing, or any other commodity,
as to a surplus of ideas, or—what is the same thing—to
28. Id. at 58.
24. See id. at 61-64.
25. Id. at 79.
26. Id. at 81.
27. Id. at 81-82.