obviousness, and a working model. Copyright is also hedged
with limitations; only specific expression, not general ideas
or plotlines, can be protected. Both patent and copyright are
subject to rich and complicated bodies of legal doctrine, which
testifies to their importance.
Things do indeed go awry sometimes, especially in times
of rapid change. In the late 19th century, rural America was
outraged by the “driven well patent,” which covered a pipe
pounded into the ground. A decade or so ago, patents were
granted too freely for computerization of familiar practices,
such as conducting a Dutch auction. But the system, for the
most part, works.
Copyright is a bigger problem. To a large degree, the anti-
I.P. forces have gotten their wish. The internet, and especially
Google search and YouTube, have made people’s rights to their
own creations practically unenforceable for anyone who isn’t a
large corporation with a battalion of lawyers on call.
The results are mixed—at best. For those who use informa-
tion as a tool for some other purpose, and whose business model
does not depend on selling that information, the web has pro-
duced spectacular results. Commerce is now easier, and think
tanks and other groups benefit enormously from the increased
reach they can attain.
But for those of us who are dependent on monetizing infor-
mation itself, the results have been disastrous. News organiza-
tions have been reduced to living off of the mere crumbs that fall
from the maw of Google’s advertising algorithms. In many ways,
the traditional news business no longer exists at all. Instead,
the product is the consumer, whose eyeballs can be sold and,
because tailored ads are more effective and thus more lucrative,
whose privacy is increasingly invaded.
In the entertainment field, individual artists have always had
a hard time making a buck, but the trend, as intellectual prop-
erty rights become less reliable, is toward ever-greater indus-
trial concentration. A creator must sign on with one of the new
barons, such as Amazon or Netflix, to access the necessary clout
and resources to protect herself.
Sure, some artists do well in this system, but most cannot,
and anyone outside the magic circle is fish bait. One of the great
promises of the internet was that people on the fringes could
use it to access a wider array of potential customers and become
less dependent on intermediaries. Without defensible property
rights, this is a pipe dream.
Time will tell how this all works out, but the current state of the
news business is hardly a cause for libertarian exultation. Per-
sonally, for both news and entertainment, I mourn a lost alterna-
tive world in which strong intellectual property protections and
micropayments together could have restored both consumers
and producers to their proper, and more prosperous, roles.
NEGATIVE:
Patents and Copyrights
Are Dubious Legal
Instruments
TOM G. PALMER
PATENTS AND COPYRIGHT are frequently in the news, with head-
lines such as “Amazon Patents Aerial Fulfilment Centers
for Improved Drone Delivery” and “Elon Musk, Artist Settle
Copyright Row Over Unicorn.” Sometimes the conversation
turns to the alleged need for legislative changes to lengthen
or strengthen patent and copyright protections. The argu-
ments in favor of such moves are propelled by moral claims
about fairness and just reward but also by dubious claims about
increased innovation and economic growth. (Trademark and
trade secret protections are generally defended for other rea-
sons based on contracts.)
Generally, both the very best defenses and the very best cri-
tiques of patents and copyrights were crafted by people working
in the libertarian tradition. The reason isn’t hard to identify: Pat-
ents and copyrights have come to be called “intellectual prop-
erty,” and libertarians see property and liberty as intimately
connected. John Locke argued that people join in society “for
the mutual preservation of their lives, liberties and estates,
which I call by the general name, property.”
Property is associated with prosperity, voluntary coopera-
tion, and social harmony. It overcomes many “free rider” prob-
lems by creating incentives for people to take care of what is
their own: In the fourth century BCE, Aristotle pointed out that
“that which is common to the greatest number has the least care
bestowed upon it.”
Yet as Fritz Machlup and Edith Penrose pointed out in their
classic study “The Patent Controversy in the Nineteenth Cen-
tury,” “those who started using the word property in connec-
tion with inventions had a very definite purpose in mind: they
wanted to substitute a word with a respectable connotation,
‘property,’ for a word that had an unpleasant ring, ‘privilege.’”
Patents and copyrights are privileges granted by political
authorities. They were originally used to advance the interests
of the rulers, not of the ruled; monopoly rights were often sold
or handed out for political reasons. Only later were these instru-
ments reformulated as attempts to create an artificial scarcity
that would generate incentives for authors and inventors.
If I write a song and you sing it, you may be infringing
a copyright granted to me by the state, and a court may beREASON 45