Comments Elsewhere

Castillon: The solution for patents is trade secrets, which do deal heavily in contracts and are relatively successful.

Well, maybe it is and maybe it isn’t. If “trade secrets” are binding on third parties who have made no agreement to respect or conceal them, then they are just as objectionable on free market grounds as patents or copyrights. If they are not, then it’s pretty likely that at least some products will be easily reverse engineered by people not bound by trade secrets. (This is at least the case with products that can be reverse-engineered using chemical analysis, most software, etc.) Of course, without the bludgeon of patent law and copyright law to bully people with, firms might try demanding that their customers sign on to trade secret agreements as a condition of sale. But that’s a fairly novel approach for most of the products concerned and it’s unclear whether, given the choice, customers would take it. It’s also unclear how successful it would be given that it has no binding force over third parties who innocently come into possession of the product without having signed the agreement.)

It may very well be true that the end of patents will make capital- and labor-intensive research unprofitable for many fields in which it is profitable today. Maybe there is some way of patching that up, but I don’t think that it would be any argument for intellectual protectionism if it couldn’t be patched up. There are reasons for doing research other than making an immediate profit through monopoly control over the engineering results of the research; and there is no good way of centrally planning the best modes of research to allocate money to. The best thing to do is to leave it open to market competition and see what falls out of researchers’, sponsors’, and consumer’s economizing decisions.

Castillon: As to copyrights, the original inspiration for them in Anglo-American law had nothing to do with contract law, property rights, or anything else like that. They were a utilitarian means to encourage production of some very limited varities of largely artistic endeavours.

Well, that depends on the date you are attributing to the origin of copyright law. If you’re dating them from the Statute of Anne then you’re right to say that they had this explicitly protectionist purpose. If you’re dating them to the extension of letters patent to the use of the printing press with regard to particular works (which were sometimes granted to particular printers and sometimes to particular authors), or the Licensing Act of 1662, then the purpose wasn’t even connected to the promotion of “useful books” at all; it was simply a brute grant of privilege from the Crown, combined with the desire to control printing for purposes of censorship, suppression of heresy, etc. In any case, the discussion above was not directed to the purposes originally cited for copyright law, but rather to the kinds of stories that pro-copyright libertarians try to tell themselves to justfy the claim that copyright is compatible with a free market. (Randians favor the claim that it is a form of private property; Rothbard argued that it is a form of contractual agreement; Matt seems to be vacillating between the two different accounts; and I argue that neither is right or even particularly plausible.)