I’ve been doing a lot of research of late on intellectual property, for an upcoming article. In particular, I read Tom G. Palmer’s outstanding essay Are Patents and Copyrights Morally Justified?: The Philosophy of Property Rights and Ideal Objects, 13 Harv. J. L. & Pub. Pol’y 817 (1990), and then re-read Ayn Rand’s Patents And Copyrights, in Capitalism: The Unknown Ideal (1967), to see if Palmer’s criticisms really do hold up. Boy, do they ever. Patents And Copyrights must be the second worst essay Rand ever wrote (behind her essay about how no woman should ever be president).
Rand’s argument is that intellectual property rights are natural rights, and that “[t]he government does not ‘grant’ a patent or a copyright in the sense of a gift, privilege, or favor.” Id. at 131. As a descriptive matter, of course, this is plainly false. Intellectual property was not a right at common law, and has always been regarded by the law as a mere privilege. Donaldson v. Becket, 98 Eng. Rep. 257 (H.L. 1774), accord, Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 663 (1834). But if Rand is saying that patents and copyrights ought to be regarded as natural rights, she has to make a case for it, and that case must profoundly address the most significant characteristic of intellectual property: its non-exclusivity. That is, intellectual property can be used simultaneously by more than one person at a time, and once obtained, it can never be taken away from a person. In Jefferson’s phrase, a person who lights his candle from mine illuminates himself without darkening me.
Rand fails to address this matter at all, except in one interesting passage. In that passage, she argues that intellectual property rights must be limited in time, lest they clog the flow of progress: “it would become a cumulative lien on the productivity of unborn generations, which would ultimately paralyze them,” she says, for intellectual property rights to extend to perpetuity. Rand at 131. Yet this argument counts against her proposition that intellectual property is a natural right. For one thing, I know of no other natural property right which becomes unjust merely by the passage of time, and with no intervening unjust act occurring. And if intellectual property is a natural right, then it would seem that a time limit would be an injustice, just as it would be unjust for the government to simply declare that all land titles shall expire in exactly 50 years.
Just as time limits are incompatible with a natural right copyright, so any doctrine of “fair use” would seem to be incompatible with a natural right copyright, as well. Government has no legitimate authority to force me to provide a public easement over my land—so, too, if intellectual property rights are a natural right, then the government has no right to declare a public “fair use” quasi-easement over my intellectual property rights. Yet Rand herself employed the fair use doctrine on a regular basis: she quoted and published passages from Nietzsche, Victor Hugo, and other writers she admired, without, so far as I am aware, any compunctions: and rightly so, because Nietzsche and his descendants (had he any) would have no legitimate right to stop Rand from quoting him—not because “fair use” is a legitimate easement over a natural intellectual property right, but because intellectual property is not a natural right.
Rand’s argument seems to conflate several principles which it is important to distinguish. First, she confuses a producer’s legitimate moral glory with his legal rights—that is, she is swayed by the moral intuition that it’s unfair to copy someone else’s ideas, without explaining why it is any business of the government’s. Second, she confuses the right to the product of your labor with the right to prevent others from taking that product.
It is of course true that a person who invents or creates does so by the application of virtue, and that he deserves recognition and respect for doing so. Hank Rearden’s invention of Rearden Metal is a glorious thing, the fountainhead of human progress, as it were, and he deserves his honors. But that does not mean that any person who copies him has done him a harm of which the state should be cognizant. I am not convinced, indeed, that copying him would be immoral in any way. But even assuming it is, that does not mean Rearden has the right to stop it.
Second, there is a difference between one’s right to his earnings, and one’s right not to have his earnings taken from him. With regard to tangible property, these two things fit together perfectly, like the convexity and concavity of the same curved line. But with regard to intellectual property, which is non-exclusive, these two things are pried apart. A man who invents a new mousetrap certainly deserves what he can earn for producing that mousetrap. (And nobody may take either his earnings or his particular mousetrap from him.) But he does not necessarily have the right to stop others from “taking” his mousetrap idea from him, because even when a person does so, he still retains that idea. It is nonexclusive. That is to say, for Rand to establish that intellectual property rights are natural rights, she must explain how one can have theft without disseisin—which she does not even attempt to do.
One might argue that intellectual property is exclusive because, if a man copies the new mousetrap idea and goes into competition with the inventor, the copier is obtaining market premiums in the form of not having to pay for research and development, which is “stolen” from the inventor. But the copying marketer is also taking the economic risk in this circumstance, and if his business failed, he certainly would have no right to sue the inventor for coming up with an unsuccessful idea. So it should not work the other way around.
Simply put, competition is not a crime, and if a competitor sees that another person has implemented a successful business model, it does not harm anyone for the competitor to implement that model himself so as to more successfully compete. This is one of the oldest principles in the common law. As the court put it in Prior of Christchurch Canterbury v. Bendysshe, 93 Selden Society 8 (1503?), “[d]amage alone is not a cause of action. Thus, [where] an innkeeper or other victualler comes and dwells next to another [innkeeper] and thereby more of the customers resort to him than the other, it is a damage to the other, but no wrong, for he cannot compel men to buy victuals from him rather than from the other.” Rand seems to confuse the moral right to one’s earnings with the right to enlist the government’s assistance in assuring that one’s earnings remain as high as they possibly can be—which is, of course, the principle of the (genuine) monopolist.
If Standard Oil tried to stop me from opening an oil company to go into competition with them, solely on the basis that “they were doing it first,” I would think that, of all people, Ayn Rand would be the loudest to defend my right to compete—even if I got the idea from watching them. Yet patents are precisely this same principle.
Indeed, patents contain two serious injustices which Rand should have been most sensitive to. One she does not discuss, the second she fumbles badly. The first is that, in discussing the claims of American Indians against the American government—as well as in her comments about Arab ownership of oil in one of her Donohue interviews—Rand argued that merely “being here first” did not give the American Indians the ownership of North American land, and that merely “being there first” did not give Arabs the right to the oil in the ground. Rather, those rights followed the productive use of the resources. Now, whether you agree with this or not is irrelevant—the point is, patents, in many cases, are precisely the same thing.
Some time ago, my mother came up with a brilliant invention: a paint brush with a tapered end to the handle like a flat-headed srewdriver, so that you could pry open a paint can with it, and thus dispense with getting a screwdriver every time you want to open a paint can. I ran a patent search, and sure enough, it’s already been patented. If I were to go into business with this thing, I could be stopped and sued and forced to disgorge my profits. Why? I did nothing wrong—I didn’t even copy anyone, assuming that is wrong. But the other guy was there first. Why does this work for the inventor, in Rand’s eyes, but not the American Indian?
This is the second issue, which Rand fumbles badly. Discussing the problem of simultaneous inventors, she says
The fact that a man might have been first, does not alter the fact that he wasn’t. Since the issue is one of commercial rights, the loser in a case of that kind has to accept the fact that in seeking to trade with others he must face the possibility of a competitor winning the race, which is true of all types of competition.
Rand at 133. Now, this must be the vilest sentence Rand ever penned. This is not like “all types of competition.” In the free market, if I want to compete against Standard Oil, I can do so, even though they were there first. But in this case, I cannot produce my paintbrush at all, merely because I wasn’t there first. That rule is not imposed by the market’s “commercial rights”; it’s imposed by the government-backed monopoly of patent law. So to say that I “ha[ve] to accept the fact,” Rand is saying that “there are just some things you have to learn to live with to get along with others,” or, to put it another way, “You must sacrifice for the good of society,” which is a remarkable argument for Ayn Rand to make! The simultaneous inventor (or innocent second-comer) scenario, is, in my eyes, an inescapable moral flaw in intellectual property rights, which cannot be reconciled with a belief in natural rights.
Palmer’s attack on these arguments is truly dead-on, and I strongly recommend it. I’ll probably post more on this subject as I think more about it—and of course, I am open to argument, and I could very well change my mind and decide that Rand is right about these things. I welcome thoughtful emails.
One final note: I in no way mean to denigrate the moral glory that creators have and deserve. I consider myself an Objectivist and entirely agree with Rand’s great homages to inventors and artists and the creative work that makes them special people. They deserve every penny they get through fair competition. My point is only that, when I make a copy of a record, or a movie, or something, I am not initiating force against the creators, and therefore, it is none of the government’s business.