Monday, June 6, 2011

A Misplaced Analogy

The libertarian challenge to the legitimacy of “intellectual property” has created some confusion. It’s understandable. For one thing, there’s an apparent inconsistency: If one favors property rights in tangible things, why not in intangibles? Pro-property IP opponents reply that the tangible/intangible distinction is decisive. When you take someone’s car without permission, not only do you have use of the car, but the owner does not. But when you engage in an IP (copyright or patent) violation, you have not literally taken anything. This is disputed, so let’s look more closely.

Jones invents (and patents) the wheelbarrow and uses it on his land. He intends to produce this great new device and sell it to a world that eagerly awaits it. Smith lawfully walks by Jones’s property and watches him using the wheelbarrow, realizing this is something no one has ever seen before. If Smith goes home and, using her own materials and labor, makes a wheelbarrow from the mental image stored in her mind, what has she taken from Jones? Smith’s mental image is hers. One could say it is the result of her own mental labor (observing, understanding, remembering). When she acquired it, in no way did she interfere with Jones’s access either to his physical wheelbarrow or his mental image of it. Jones had what he started with. That’s how it is with ideas. (Bear in mind that under current law Smith is guilty of patent infringement even if she never saw Jones’s wheelbarrow. Do not assume that patents are primarily about prohibiting copying.)

Read More: Sheldon Richman: Slave Labor and Intellectual Property


  1. While it's been 14 years since I took patent law, my memory is this:

    Smith would not be guilty of patent infringement unless she used her design for commercial purpose.

    As I recall the subject, patent law does not prohibit hobbyist tinkering or home use invention.

  2. Good point, Karl, but it misses the point that's being made.

    Even if the use is for commercial purposes, Smith has still not taken anything from Jones. Jones might now face competition, but tough, that's the free market.

    But suppose further that Smith just makes handcrafted wheelbarrows that don't pose any real threat to a large factory that Jones might build to mass produce his design. Smith might just make a small living selling a few wheelbarrows a month, while Jones produces thousands. Yet, Smith would still be in violation of patent law. And, as Richman points out, that would be true even if she came up with the idea of the wheelbarrow herself, independently, and never saw Jones's design beforehand.


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