authorized to enjoin you
from using your voice
as you choose—mean-
ing that your liberty of
action over your body
is lessened by my legal
privilege. The prob-
lems with patents are
no less severe, espe-
cially when you con-
sider that merely filing
a patent application 10
minutes earlier confers
a full monopoly over the
invention, regardless
of the claims another
inventor may have.
Merely calling a priv-
ilege “property” doesn’t
mean that it has the
characteristics of prop-
erty that libertarians
find desirable. Occupa-
tional licenses, monop-
olies, farm subsidies,
and other privileges are
sometimes referred to as
property (and in many
cases have characteristics of property—they’re transferrable,
can be borrowed against, etc.), but that is no reason to extend to
such privileges the traditional libertarian respect for the “lives,
liberties, and estates” that were designated by Locke as property.
Thomas Jefferson, after some years as a member of the fed-
eral Patent Board, wrote that “if nature has made any one thing
less susceptible than all others of exclusive property, it is the
action of the thinking power called an idea, which an individual
may exclusively possess as long as he keeps it to himself; but the
moment it is divulged, it forces itself into the possession of every
one, and the receiver cannot dispossess himself of it. Its peculiar
character, too, is that no one possesses the less, because every
other possesses the whole of it. He who receives an idea from me,
receives instruction himself without lessening mine; as he who
lights his taper at mine, receives light without darkening me.”
Jefferson granted that the state may award such monopolies “as
an encouragement to pursue ideas which may produce utility,”
but he was skeptical that they actually served that function. That
skepticism has been borne out by historical experience.
Plenty of innovation takes place in fields without patent pro-
tection, including effectively the whole U.S. aviation industry
from 1917 to 1975. Most firms patent to avoid having competi-
tors register patents before them, or use the number of patents
filed to measure the productivity of their R&D departments.
There is no compelling evidence from empirical research that
patents generate overall economic benefits, with one possible—
and significant—exception: chemical compounds.
In many cases, these compounds can be easily reverse-engi-
neered and are also relatively easy to define. In the pharmaceuti-
cal industry, the costs of R&D and of evaluation by the Food and
Drug Administration can be astronomical, and the consumer
benefits can be very substantial. Pharmaceuticals may be the
best case (and I write “may,” since there could still be other solu-
tions in that instance) that general benefits can flow from grants
of monopoly privileges—so long as the formulae are published,
ensuring that generics can be made available after the patents
expire, and the duration of the monopoly is limited. But one
exception does not a general case make.
The power to hand out such legislative monopolies is
expressly limited by the Constitution, but those limitations are
under attack in ways that clearly have nothing to do with pro-
moting the further “Progress of Science and useful Arts.”
Extending the copyright of a film won’t cause more of that
film to be produced. The current patent system, rather than
speeding up innovation, may even be hampering it, as pat-
ents are issued with barely any examination of whether the
application is overly broad or whether someone else is already
producing what the patent covers. “Patent mill” law firms then
buy up such patents and shake down tech firms by threatening
patent infringement suits that would, even if unsuccessful,
cost the targets millions to defend against. The tech compa-
nies often agree to hefty settlements (accompanied by non-
disclosure agreements) with the law firms because doing so is
less costly than litigation would be. In discussions with CEOs
of electronics firms manufacturing in the U.S., I’ve been told
that the existing system increases the cost of doing business
and that, despite their cutting-edge position, they’d prefer to
be rid of the whole mess.
The future of civilization does not hinge on whether we
extend, diminish, or abolish copyright and patent protec-
tions. There are other, more critical issues before us. But people
who value liberty should be skeptical of moves to lengthen or
strengthen legislatively granted monopoly privileges. Putting
the lipstick of “property” on a pig shouldn’t make it sexy.JAM E S V. D ELO N G is the former direc tor of the Center for the Study of Digital
Property at the Progress & Freedom Foundation.TO M G. PALM ER is a senior fellow at the C ato Institute and G eorge M. Yeager
Chair for Advancing Liberty and executive vice president for international
programs at Atlas Network.46 OCTOBER 2018 Illustration: Wikimedia