PROPOSITION: Intellectual Property Must Be Protected.

• Author: Delong, James V.
• Position: The Debate Issue

AFFIRMATIVE: I.P. Holders Need the Legal System To Uphold Their Rights

IF ANY GATHERING of people of libertarian bent becomes dull, raise the topic "intellectual property." The result will be an entertaining escalation in both outrage and decibels. The only certainty is that no minds will be changed, because the pros and the cons emphasize different values and the twain show no signs of meeting.

The case for recognizing a creator's right to his creations and his claim on the state to help protect this right rest on the same foundations as the arguments for protecting tangible property: Lockean entitlement to the fruits of one's labors; economic considerations of the importance of incentives and mechanisms for investment (and of the freedom of anyone with an entrepreneurial idea to bet on it without approval by hierarchies); the political benefits of separating people's livelihood from power structures (the old idea of the independent yeoman class, as modified for a society in which land has become less important as a factor of production and ideas more so); and the philosophical concepts of human agency and personal dignity, combined with the role of property--intangible as well as tangible--in making them a reality rather than an abstraction.

As always, it's in moving from the abstractions to the realities where the devilment lies. Defining and bounding intellectual property rights is complicated. The field is subdivided into four major domains: Copyright governs written, visual, and audio creations; patents apply to inventions; trademarks deal with brand protection; and trade secrets cover confidential information. Each has special characteristics and is subject to its own special rules.

Other than trade secrets, these domains differ from tangible property in a crucial way. Because tangible property can be locked up, nailed down, or fenced in, anyone who wants to infringe my rights must make physical contact with it. That makes self-protection the first line of defense, with invocation of state power as a backup. (Because trade secrets are much like tangible property in this respect, they tend not to rouse as much resistance.)

Intangible property, in contrast--to be either useful or lucrative--must be made available publicly and can be easily copied. Sometimes self-protection is possible by integrating tangible property with the intellectual product. Newspaper content, for example, was for decades protected by the expense of printing and distribution. But usually the holders of intellectual property must rely upon the legal system to uphold their rights.

It is not surprising that this intimate intertwinement of property with state power worries libertarians, as indeed it should. A government-enforced monopoly based on a patent or copyright looks a lot like a monopoly granted by a self-seeking officeholder to his...