Liberty versus Property? Cracks in the Foundations of Copyright Law

Abstract

Many modern intellectual property scholars have argued that the creation of patents and copyrights, for inventions and writings, respectively, should be resisted on the grounds that these forms of property necessarily infringe ordinary forms of liberty, in contrast to property that is found in tangible things. This article rejects that claim by showing how property conflicts with liberty in both settings, but that the different configurations of rights observed in these various areas is defensible on the grounds that the loss of liberty for all persons is, to the extent that human institutions can make it, compensated by the increased utility generated by the various property rights in question. The appropriate approach to intellectual property is not abolition but fine-tuning in an effort to increase the gains from intellectual property generally.