New from Law professor Richard Epstein: The Structural Unity of Real and Intellectual Property (video). Epstein argues that there are many similarities between physical property and “non-physical” property (i.e, intellectual property). Epstein identifies four principles that create a basic framework for understanding physical property law. He concluded in his speech that all four can be applied to intellectual property with the main difference being transfer of such property is only absolute in the case of physical property.
I think Epstein confuses positive law with justification. Of course IP “can” be enforced. But recognzing crucial role of scarcity in specifying property rights makes it clear that any enforcement of IP is always done in the physical realm–enFORCEment, get it? Enforcing IP in the physical realm in effect means a claim to IP is a claim to physical property. Property that is already owned. Property whose ownership is justified–in libertarian terms–by the first possession of that piece of property by the owner or an ancestor in title–the homesteader or someone who contracts with him. Granting a right to control that resource to an IP creator simply means transferring rights in an already-owned thing to a non-homesteader, non-contractor. We libertarians call this theft, trespass, confiscation, socialism, or redistrubution of wealth. Showing that modern positivistic legal systems can “deal with” IP does not show it is justified.
Interesting note: someone asked me if I thought it odd Epstein’s paper does not cite or link to any prominent anti-IP libertarian publications, such as my Against Intellectual Property. Could it be, my correspondent wondered, Epstein is engaging in the typical Cato-ish habit of not-naming or citing to a Rothbardian or Hoppeian, even when it would be appropriate? After alll, Epstein is a Cato Institute Adjunct Scholar, and Epstein’s piece does seem addressed at some growing groundswell of opposition to the legitimacy of IP. Doesn’t it? But I am loathe to think this of Epstein, who has always been a genuine scholar and someone I greatly respect and admire.
But just a couple of observations: First, some of us have criticized Epstein’s and Cato’s pro-patent views in print in the past. See, e.g. Epstein and Patents; also Cato Tugs Stray Back Onto Reservation; Jude Blanchette’s The Reimportation Controversy; Protectionist Cato?; Drug Patents and Welfare.
Second, it is interesting to note that James DeLong introduced Epstein’s paper and talk–the same DeLong that I debated on the issue of “Do patents and copyrights undermine private property?” a few years back in a symposium in Insight Magazine.
But I’m not saying nuttin’.