Mondays with Murray: Did Rothbard Support IP?Submitted by Marc Clair on Mon, 04/08/2013 - 10:38
In the past week there has been heated debate within the Libertarian Internet Geek Community – of which I proudly consider myself a member – over the issue of intellectual property. This was sparked by the recent debate / shouting match between Stephan Kinsella on the anti-IP side and Robert Wenzel on the pro-IP.
I’ve been developing my thoughts on this debate which I’ll put together later in the week, but for now it seems appropriate to use this latest rendition of Mondays with Murray to examine one of the more contentious topics of the Kinsella-Wenzel showdown, which was Murray Rothbard’s position on intellectual property.
Rothbard makes a clear distinction between copyright and patent, and it’s an important one to keep in mind when defining the framework of the libertarian debate on intellectual property.
From Chapter 10 of Man, Economy and State:
Turning now to patents and copyrights, we ask: Which of the two, if either, is consonant with the purely free market, and which is a grant of monopoly privilege by the State? In this part, we have been analyzing the economics of the purely free market, where the individual person and property are not subject to mo¬lestation. It is therefore important to decide whether patents or copyrights will obtain in the purely free, noninvasive society, or whether they are a function of government interference.
Almost all writers have bracketed patents and copyrights together. Most have considered both as grants of exclusive monopoly privilege by the State; a few have considered both as part and parcel of property right on the free market. But almost everyone has considered patents and copyrights as equivalent: the one as conferring an exclusive property right in the field of mechanical inventions, the other as conferring an exclusive right in the field of literary creations. Yet this bracketing of patents and copyrights is wholly fallacious; the two are completely different in relation to the free market. It is true that a patent and a copyright are both exclusive property rights and it is also true that they are both property rights in innovations. But there is a crucial difference in their legal enforcement. If an author or a composer believes his copy¬right is being infringed, and he takes legal action, he must “prove that the defendant had ‘access’ to the work allegedly infringed. If the defendant produces something identical with the plaintiff’s work by mere chance, there is no infringement.”Copyrights, in other words, have their basis in prosecution of implicit theft. The plaintiff must prove that the defendant stole the former’s creation by reproducing it and selling it himself in violation of his or someone else’s contract with the original seller. But if the defendant independently arrives at the same creation, the plaintiff has no copyright privilege that could prevent the defendant from using and selling his product.