Libertarian Views of Intellectual Property: Rothbard, Tucker, Spooner, and Rand

Rothbard defended a contract theory of copyright, the idea that if an author properly conditions the sale of her work on the purchaser’s agreement “not to recopy or reproduce this work for sale,” then the resulting copyright protections would be completely legitimate on libertarian grounds. After all, libertarians recognize the enforceability of legal contracts as an implication of the idea that we can and should be bound by agreements that we have entered into freely, where there has been no coercive interference in our relations with one another. In The Ethics of Liberty (published first in 1982), Rothbard applies this contract rationale not only to copyrights, but also to patents, urging that the inventor of a mousetrap, for example, may successfully prohibit others from selling an identical mousetrap to the extent that the inventor retains a piece of “the property right in each mousetrap.” Rothbard contended that, as a practical matter, libertarian principles must entail the ability to limit purchasers’ rights regarding a work or invention, and thus to similarly limit all others’ rights—even when these others are not parties to the original contract. “[N]o one,” Rothbard argued, “can acquire a greater property title in something that has already been given away or sold.” According to this account, then, if the original purchaser’s rights had been limited by his agreement with the inventor, then so too would be those of every latecomer.

While Rothbard applied his copyright‐​by‐​contract theory likewise to patents, he distinguished these two forms of intellectual property. In Man, Economy, and State, Rothbard qualifies the protection offered to patents, claiming that patents are invalid and “incompatible with the free market” insofar as they attempt to go beyond copyright—that is, provide protections beyond those of the original contract. For Rothbard, this kind of unqualified patent was incompatible with the principles of the free market because it outlawed practices which were not theft (either explicitly or implicitly). If another inventor “arrives at the same invention independently,” Rothbard writes, he “will, on the free market, be perfectly able to use and sell his invention.” Given that his apologies for intellectual property rights ground them firmly in contract theory as opposed to some other separate basis, even Rothbard’s defenses represent a challenge to standard economic arguments for intellectual property. Noting the popularity of the economic, utilitarian case for patents among economists, Rothbard pointed out the obvious practical problem with drawing the line, with developing the standard by which we calculate the “correct” level of expenditures on research and development.

For individualist anarchist Benjamin Tucker, intellectual property in all its forms was simply protectionist economic privilege, adverse to legitimate individual rights and designed for no higher purpose than the insulation of the powerful against competition. Believing that labor was the ultimate source of value, Tucker saw copyrights and patents as granting their holders the power to profit in excess of the amount to which their work equitably entitled them. As another way to separate price from cost, Tucker argued that intellectual property was instituted in the service of “usury,” a feature of the capitalistic system which, he contended, full competition would eliminate. Whether ideas could or should be the subject of property was debated spiritedly within the pages of Liberty from the journal’s start. Writing on the subject in an 1888 issue of Liberty, Tucker quoted Henry George, who wrote, “Discovery can give no right of ownership.… The natural reward of labor expended in discovery is in the use that can be made of the discovery without interference with the right of anyone else to use it.” Tucker agreed with George that “patent laws endeavor to add an artificial reward” to discovery that would “retard, if not put a stop to, further inventions,” rather than incentivizing them.

Tucker, however, went further than his frequent foil Henry George in opposing not only patent, but also copyright, contending that George mistakenly categorized the work of an author as “the work of production.” Unlike the work of production, which George argued granted an ownership right, the words of an author, even though assembled in a unique combination, also “existed potentially before he came,” just like an invention. Tucker thus regarded the “original work of the author … in thinking or composing” as a perfect analogy to the inventor’s work—with the reproduction of an author’s work being the correct analogy to the production of, for example, new wheelbarrows. Neither were entitled to special protection, but were rightly protectable only insofar as they might be by free agreement, boycott and other strictly voluntary, free market means. Only concrete, physical things were appropriable and, consequently, subject to individual ownership. To Tucker, the “laws and facts of Nature” were a form of “natural wealth” to be left free and open to all. Attempts to fence them in through the artifice of legislation were not a proper element of market competition, but were an invidious form of monopoly—indeed, one the “four of principal importance” which Tucker pinpointed for special criticism.

The work of individualist anarchist Lysander Spooner presents a stark and noteworthy contrast to that of Benjamin Tucker. Eulogized by Tucker as “Our Nestor,” Spooner was a key influence on early American anarchism and continues to have an impact on the contemporary libertarian movement. Uncompromising in his methodical attacks on slavery and repressive legislation more generally, the polemics of this libertarian lawyer were always feisty and creative. He founded his American Letter Mail Company in 1844 as a rival to the monopolistic U.S. Post Office and attacked slavery on constitutional grounds only to turn around and attack the Constitution itself using generally accepted principles of contract law. Given his rare genius and durable stature as an important ancestor of modern libertarians, Spooner’s views on intellectual property rights have continued to inform the conversation surrounding the relationship between those rights and natural law. In his essay “The Law of Intellectual Property,” published in 1855, Spooner sets out to “understand the law of nature in regard to intellectual property,” a project he says must begin with “understand[ing] how and when wealth becomes property.” For Spooner, this distinction between wealth and property is important, with the former encompassing a broad array of things even “intangible and imperceptible,” and the latter reserved for wealth that an owner has converted into something “that is possessed” (emphasis in original). Property, Spooner writes, “is a right against the whole world,” and may embrace any “conceivable thing … which can be possessed, held, used, controlled, and enjoyed, by one person.” Spooner thus affirmatively answers the question of whether things like enjoyments, ideas, happiness, and feelings fall within the category as he has delineated it, concluding that all of these are susceptible to property.

Since Spooner finds the foundation of property in each individual’s natural right to provide for her own subsistence and happiness, it is perhaps unsurprising that he regards “the right of property in intellectual wealth” as necessary and legitimate. After all, ideas are no less important to the ends served by property than are labor and natural resources, which would remain idle and useless without the application of intellect and ingenuity. Confronting the argument that a thing must have “corporeal substance” to be the subject of a property right, Spooner protests that tangible, physical substances “are not the only things that have value”—that denying a property right in ideas is akin to arguing that an individual does not own her labor, also intangible. If labor is properly the subject of property, belonging to the individual and deserving of payment, then so too are ideas, which he compares to the “new forms and new beauties” that human labor gives to physical objects. Engaging ideas from tort law, Spooner goes on to observe that health, strength, and the physical senses too are incorporeal, susceptible to loss “without the loss of any corporeal substance,” but are nevertheless “valuable possessions, and subjects of property.” A tortfeasor who impairs or harms these non‐​physical qualities must make his victim whole, paying damages as compensation. For Spooner, then, it is clear that property rights can (indeed, must) extend their reach beyond physical objects, that the acquisition of property itself depends fundamentally upon something that cannot be seen or touched, human effort.

Among the several other objections Spooner addresses is the common worry that “ideas have no ear‐​marks,” that it is impossible, as a practical matter, to attribute ownership of an idea to an individual accurately or justly. To this, Spooner points to the fact that, as things are now, individuals regularly register ownership of their ideas, and “with a great variety of other evidence” demonstrate that ownership to tribunals with sufficient certainty and definiteness. Spooner thus denies that the density and plurality of inventions’ causes means that the ideas behind them cannot be owned by distinct individuals, arguing that this objection, if sound, would also apply to property in tangible objects. Spooner urges his reader to consider the gold miner in California, who is no less propelled and aided by the “general progress of science, knowledge, and art,” the gold he discovers no less owing to others who came before him. Spooner takes on perhaps the most common objection to intellectual property rights among libertarians today, that private property in corporeal commodities is justified only by the fact that these are rivalrous, that they “cannot be completely and fully possessed and used by two persons at once.” Carried to its logical end, Spooner says, this argument is nothing but communism, allowing any individual the right to take for himself and use freely anything he wants, regardless of whether he has produced it by his own labor. Spooner arrives at this conclusion by arguing that private property has its proper foundation not on the rivalrousness of tangible objects, but on the fact that the property in question is “produced by one man’s labor.” The opponents of intellectual property therefore undermine the entire basis for private property, establishing a principle that, Spooner argues, in fact applies equally well to corporeal commodities under certain circumstances. For example, railways, roads and canals may be used simultaneously by several people, and yet are proper subjects of private property. Having set out his own case for private property in ideas and carefully attended to many of the objections to such property, Spooner’s “The Law of Intellectual Property” remains a pivotal moment in the case for pro‐​intellectual property libertarianism.

Still another forceful exhibit in the case in favor of intellectual property rights comes from Ayn Rand, always a lightning rod and, like Spooner, an outspoken champion of copyright and patent protections. Indeed, Rand tracks Spooner quite closely in her conception of the proper basis for private property, which she argues is “a man’s right to the product of his mind.” “What the patent and copyright laws acknowledge,” Rand argues, “is the paramount role of mental effort in the production of material values.” Without such laws, true competition is compromised insofar as the first in time inventor, the “winner of the race,” is not protected—the “the potential” is mistaken for the “the actual.” In service of her defense of patents and copyrights, Rand draws a distinction between a “scientific or philosophical discovery” and an invention, the latter representing “only … the practical application of knowledge.” Intellectual property is only legitimate, in Rand’s view, because it protects creators in their fabrication of concrete things that did not previously exist in nature. Whether another individual might have invented the same, or did so in another local, is not the question. Instead, as with homesteading land, the critical question for Rand is who invented the object in question—be it a literary creation or a new machine—and who took the steps to give it a material form. Like Spooner, Rand thought that the theoretical case for private property in general was hollow without accounting for and protecting labors of the mind.

Libertarians are seldom indecisive or wishy‐​washy on the question of intellectual property. We tend either to favor or oppose it strongly, depending on whether we see it as a necessary and proper guardian of legitimate individual rights, or a precarious and inherently unjust form of coercive monopolism. In an era when so much of what is even considered free competition depends on our answer to the intellectual property question, it is important to grapple with the theoretical work that was handed down to us, regardless of our ultimate stances.