How do hardline libertarians like Nozick and Rand consider the question intellectual property and monopolies through patents?

On one hand, it seem to me that they would support the concept, given the importance they place on the freedom to do as one pleases with one's property, and on the freedom to enjoy the fruits of one's talent and labor as one sees fit.

On the other hand, restricting free-enterprise through patents and government enforcement, and thwarting free market mechanisms by maintaining monopolies through intellectual property rights seems to go against the general gist of libertarianism. Think of how pharmaceutical companies avoid competition by maintaining monopolies through patents, or how government enforcement was used by corporations to shut down Napster and other peer-to-peer networks.

The case of patents is particularly intriguing: If I can deduce the principles of how to construct a device or a medical treatment based on my observation of its working, my knowledge of science and engineering, and my sheer talent, why should I be prevented from constructing a similar one and marketing it? Isn't that an artificial constraint on my freedom to create?

Again: I am not interested in a general discussion of these ideas, I am specifically asking how would strong libertarians like Nozick or Rand address this issue? Would they agree that companies have exclusive rights to their intellectual property and patents, or would they take a more anarchic, everyone should be free to do work as they please stance?

  • Perhaps off topic: The point of the patent, however is that you don't have to deduce this, you can look it up. People forget there is a tradeoff here -- the next generation of inventors actually profit from the patentness of a patent. The main gain to the Arts and Sciences fom the patent process is not to the patent holders, but to speeding up the cycle of the reuse of information -- it is like Keynesian economics for engineering.
    – user9166
    Aug 25 '16 at 18:53
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    @jobermark my post was spurred by the current EpiPen controversy, a case were the patent isn't benefiting anybody but the owners of the patent, and clearly a case of Radian/Wilt Chamberlainian egoism of the worst kind. Aug 25 '16 at 21:53
  • You are ignoring my point. It isn't now, but it already has. The EpiPen patent is the basis of at least one diabetic drug delivery system that would probably not exist yet if the original design had not been published. Without patents, there would not be publication because it would be a trade secret, and would have to be engineered in a way that resisted analysis which (if effective) would lead to other technologies being harder to develop. Begetting new technology is an automatic result no matter who holds the patent or how it is deployed.
    – user9166
    Aug 25 '16 at 22:19
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    I am just arguing that (a) is the goal and (b) is merely the mechanism. There is only one purpose even if the other remains a use. It has obviously gotten way out of control (e.g. Disney's 78-year patent on the shape of Mickey's hands comes to mind.) So even if they agree, Libertarian arguments about 'intellectual property' are misplaced -- not every source of income constitutes property (e.g. my ability to work is not property.)
    – user9166
    Aug 25 '16 at 22:48
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    The notion of 'intellectual property' is inherently flawed. Now that we have the technology to adequately monitor use, transfer of patents is probably an abuse of the intention behind them. It is using an incorrect notion of what is going on, that was adopted metaphorically for lack of anything more tractable.
    – user9166
    Aug 25 '16 at 22:55

Some libertarians oppose patents and copyrights in principle, see Kinsella's manifesto Against Intellectual Property. A common view is that due to its reproducibility (e.g. "theft" does not deprive the owner of the use of his/her creation or invention) "intellectual property" lacks a crucial feature of being "property". The alternative interpretation is of a government enforced temporary monopoly to encourage creativity and invention. This follows the wording of the patents and copyrights clause of the US constitution: "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

At this point there is a bifurcation, minimal government libertarians recognize that as a legitimate purpose but insist that the law be targeted and short term. Rand however goes even further and endorses the concept of "intellectual property" as property. From Capitalism: The Unknown Ideal:

"Patents and copyrights are the legal implementation of the base of all property rights: a man's right to the product of his mind. Every type of productive work involves a combination of mental and of physical effort: of thought and of physical action to translate that thought into a material form... Thus the law establishes the property right of a mind to that which it has brought in existence... If it were held in perpetuity, it would lead to the opposite of the very principle on which it is based: it would lead, not to the earned reward of achievement, but to the unearned support of parasitism. It would become a cumulative lien on the production of unborn generations, which would ultimately paralyze them."

According to Philosophic Perspectives on Intellectual Property, Nozick's position is similar:

"Nozick argues, by the assignment of a patent right to an inventor because, although other persons' access to the invention is undoubtedly limited by the issuance of the patent, the invention would not have existed at all without the efforts of the inventor -- and (although Nozick is not entirely clear on this point) the inventor would not have invented the invention and made it public had he not been lured by the prospect of a patent."

P.S. As the comments indicate, classification of Rand's and Nozick's positions as libertarian is controversial, at least on this issue.

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    Not to poison the well, but Rand, after all was primarily an author, not a philosopher. It would be difficult to imagine her not standing up for her source of income.
    – user9166
    Aug 25 '16 at 18:47
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    It is not meant to be quite ad hominem, but it points out the problem with being consistently Libertarian to begin with. We all need protection, and loud protestations to the contrary generally have big gaps in them like this one. Nozick is afraid of violence, Rand is afraid of having her art co-opted along with her ideas... The only Libertarians that don't seem to want an exception for whatever they are most afraid of are separatist Sovereignty extremists, and they can only keep themselves together by aligning against 'Babylon'.
    – user9166
    Aug 25 '16 at 20:06
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    I think you should add a couple of clarifications. First, with regards to Nozick. (a) in Anarchy, State, and Utopia, Nozick did not link intellectual rights directly to libertarianism. Rather he directly imported a modified Lockean theory of property rights. The idea that labor creates property is not something that is obviously connected to libertarianism per se. (b) Nozick is not really a "hard core" libertarian. While Anarchy, State, and Utopia is probably the best defense of philosophical libertarianism, he abandoned much of that view by the end of his life. Aug 25 '16 at 20:11
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    Second, with regards to Rand, she was an objectivist, a form of egoism rather than a libertarian. For the libertarian, all political rights stem from a fundamental principle of liberty. For the objectivist, all political rights stem from a fundamental principle of the self. The two overlap in a good many ways. But they are distinct and such things as property rights that are tied to one system may or may not apply to the other. A good example of this are the subject in question. Egoism has more to say about intellectual property per se than does strict libertarianism. Aug 25 '16 at 20:13
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    @LeeMalatesta Whether or not she represents libertarianism, she is being inconsistent complaining about the inflation of crime. She is doing it here. Theft deprives someone of something. If someone 'takes' your idea, you still have use of it. If you think that you can control others' use of your idea up to and including anything they make using it (like in your example) that is inflation of the mere notion of preventing theft. In a digital age, we need a more subtle and less contrived notion of retaining and profiting from ideas than 'ownership' and 'theft' allow for.
    – user9166
    Aug 27 '16 at 19:56

I can't resist to make two general remarks:

  1. The principle "to enjoy the fruits of one's talent and labor" is a meritocratic principle. If Libertarianism is about meritocracy, Libertarians could also argue for anti-discrimination laws, state grants for gifted students, extremely high inheritance taxes, etc. but Libertarians don't seem to do that.

  2. To argue for IP on the basis of "the freedom to do as one pleases with one's property" is a petitio principii, which already assumes that intellectual works (protected by copyright) or the knowledge behind inventions (protected by patents) can be legitimate property. But if only scarce goods can be property, it must be interpreted as an argument against IP: IP will restrict what you can do with your legitimate property. Because torrenting a movie is just a use of your scarce property (your computer).

But now to your question. I want to add one point to Conifold's comprehensive answer, that has been missed: There are a few strong libertarians who try to deduce IP "rigorously" from natural rights principles.

The results are metaphysical excesses quite uncommon in our time.

Like this gentleman, Alexander Baker, who claims that we can homestead parts of an "intellectual space" (platonic realm?). There are also debates between him and Stephan Kinsella (and that's the reason why I mention him. Otherwise he would be too obscure).

And another one, novelist and self-professed anarcho-capitalist J. Neil Schulman (the link is to an article which at least appeared in an academic journal):

The "lack of scarcity" argument fails in not recognizing that the scarcity, on which the concepts of property and economics rest, refer to the scarcity of an entity qua its identity: it is scarce by being limited to its identity. It can be no other. That an entity can be in or on more than one existent is irrelevent to the questions of ownership.

As you see, their results are not very convincing.

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