Intellectual “Waste” Land And A Lockean Approach To IP

By Noah Millman • September 20, 2012, 2:13 PM

I applaud Samuel Goldman for pointing out that, in Locke’s theory, the “right” to property derives from the act of (or at least the intent to) make productive use of same. Locke is properly understood as a fore-runner of Marx’s labor theory of value.

Without carrying a brief for Locke’s theory in general (much less its application to the case of the appropriation of land in the Americas), I wonder whether anyone has undertaken the project of applying Locke’s theories to intellectual property. It seems to me that if “waste” land has no proper owners, the same should logically be true of intellectual property. Might such an application be used to justify clearing out the stacks of defensive “patents” acquired in order to retain the right to sue someone who actually makes use of the patented innovations?

6 Responses to Intellectual “Waste” Land And A Lockean Approach To IP

Gilbert Berdine says:

September 20, 2012 at 8:22 pm

Why should ideas have property rights? Property rights are necessary for things that have exclusive use. If I eat an apple, nobody else can use the apple. While I am typing on my keyboard, nobody else can use it. These things are properly called property and have titles or property rights. Ideas do not have exclusive use. My use of an idea does not impair anyone else in any way to use the same idea. Ideas do not require property rights to avoid conflict and should not be considered property.

Chuck Ross says:

September 20, 2012 at 8:26 pm

I’d be surprised if this hasn’t been addressed somewhere.

But just as states generally have homestead laws that grant ownership to people occupying a parcel of land that is not otherwise being used by the owner, defensive patents also don’t hold into perpetuity. There is a statute of limitations (10 years? 20 years? depending on the type of patent).

IIRC, Locke did hold that something became property even without action as long as the owner intended to use it. But with IP, we’re also talking not about the intent to own a particular thing, we’re talking about the intent to sell a particular thing. The patent doesn’t prevent ownership; instead it prevents a business transaction.

Aaron in Israel says:

September 21, 2012 at 1:23 am

Seems that a lot of people who’ve thought a lot about “intellectual property” reject the term itself. They say that “property” is just a bad metaphor for what’s involved. Not only that, but it lumps together disparate things like patents, copyright, etc., that should be considered separately.

Even if you accept Locke’s theories about actual property – and people have been pointing out problems in his view for the last three centuries – it’s pretty shaky to try to extend them metaphorically to intellectual so-called property. Trying to extend the metaphor is just going in the wrong direction.

c matt says:

September 21, 2012 at 4:51 pm

So if you come up with an idea, spend $$$ to develop it into a usable product, you would have no problem with someone else copying that same product and selling it without having incurred the development costs and be able under-price you.

After all, it’s just and idea, and you can still make and sell your product.

And if that was the norm, what would bethe incentive in developing a product in the first place? There would be a “first to market” advantage, but it would quickly dissipate, possibly before R&D costs are recouped.

The problem is the concept of “property” itself is nebulous in this sense – what you are protecting are rights – i.e., the right to develop, use and profit from an idea you came up with. And not just any idea (IIRC, certain “common knowledge” commonly discoverable type things are excluded – e.g., Newton could not have patented F=MA. to the exclusion of anyone else using it).

Gilbert Berdine says:

September 21, 2012 at 6:29 pm

c matt,

I do not have the space to properly answer all your questions. I will try to summarize the problems in your response and you can find more detailed answers in sources such as ‘Against Intellectual Monopoly’ or ‘Against Intellectual Property.’

A copy cat should not be able to under price you. The development costs are sunk costs. Sales price has a lower limit set by the cost of production.

If, indeed, one’s expertise was in thinking new designs, the division of labor and economic efficiency would be best served by the designer selling the design to a copy cat without ever building the item in the first place.

Copying something may be trivial, but may also be formidable. Take the pharmaceutical industry. Knowing a chemical formula does not necessarily allow one to make a drug. A new drug that has been tested enjoys Brand recognition. A copycat drug may not be as safe or effective as the tested version. The Brand name will enjoy a price advantage.

The incentive to develop new ideas for sale ramains profit. If the development costs are so enormous that a project is not worth starting without a guarantee of monopoly profit, we might be better off without it.

One should consider concrete examples rather than abstract ideas. The sources I gave provide plenty of concrete examples where patents held up progress rather than promoted progress.

prdust says:

September 23, 2012 at 11:27 pm

I wonder whether anyone has undertaken the project of applying Locke’s theories to intellectual property

Lockean vs. utilitarian are the standard theories of IP, aren’t they? Shouldn’t be hard to find bibliographies from philosophy and/or history of the book people; there’s at least one article comparing the development of Lockean and util. ideas in a North American historical context. Don’t forget Fichte, either.

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