From an email sent initially to the wrong me (Stephen Kinsella’s I am Not) a few months back but then helpfully forwarded on to me by my fellow Kinsella. Our edited thread.
From one “Monty”:
I read your essay Against Intellectual Property and it left me with a question I hope you might be willing to answer. Your justification for protecting tangible property rights–to avoid conflict over scare resources—strikes me as fundamentally utilitarian in nature. Yet you reject utilitarian defenses of intangible property rights. But if it is ok to enforce property rights for one utilitarian reason, why is it not ok to enforce property rights for another utilitarian reason?
Thank you, Monty
It’s not utilitarian, it’s consequentialist [see Randy Barnett, “Of Chickens and Eggs—The Compatibility of Moral Rights and Consequentialist Analyses” (PDF); Introduction to idem, The Structure of Liberty: Justice and the Rule of Law (Oxford: Oxford University Press 2d ed. 2014)], and descriptive (utilitarianism just being one type of consequentialism). And I see no incompatibility between a principled (deontological) approach and a consequentialist one.In any case, if we explain that property rights arise because of the need of cooperating humans in society to find a way they can use rivalrous resources without conflict… then even if you can deride the property rights system that we come up with in service of this goal–that simply does not mean that IP rights are justified. For they do not reduce conflict but give rise to it and simply artificially redistribute wealth from current owners to new owners, which is both unjust and also leads to more not less conflict.
Thank you, Stephan. I really am conflicted on IP rights and I am just trying to figure out what to think in my own mind. Whether we want to call them utilitarian, consequentialist, or whatever (I am no philosopher and the labels don’t mean much to me), it seems to me that reducing conflict (the justification for property rights) and encouraging innovation (the justification for IP rights) are alike insofar as they seek to justify government intervention on the basis of overall social welfare rather than some notion of “moral” entitlement.
As such, it’s hard for me to see why we should embrace one justification and not the other (assuming they are both true empirically).
But I nonetheless appreciate your response. I will keep thinking about it.—Monty