Intellectual Property: Have Your Cake Or Eat It
by Joseph Rowlands
There's been plenty of debate over the existence of intellectual property rights. Those who don't recognize intellectual property rights claim that copyright laws and patents are just government-granted monopolies. Those who support IP rights see them as just another form of property rights. There are plenty of interesting arguments on both sides, and this article isn't written to end the debate. Instead, I want to up the stakes of that debate. I consider the existence of IP rights an all-or-nothing proposition. They either exist, or they don't. There can't be a middle ground.
What kind of middle ground am I talking about? Some people have argued that property rights don't exist, but that you can still protect your ideas. There are two examples. One is by insisting the buyer of the ideas sign a contract disallowing him to use the ideas in the future, or at least limiting the use. The second is to keep the idea a trade secret.
The idea of contracting protection of the idea is invalid. The validity of a contract is based on the concept of property rights. To see why this is, you have to look at why it is that a contract can't be broken. By making a trade, if one side opts out of the contract, they are violating the property rights of the other. By not fulfilling their part of the exchange, they are simply stealing what they received. Breaking a contract is a form of theft.
So what happens when someone decides after he's signed the contract and learned about the invention that he wants to keep the idea for himself? What happens if he decides to violate the contract by using the ideas in whatever way he wants? The answer, if intellectual property rights do not exist, is - nothing. Without property, there is no theft. Without intellectual property, there can be no theft of ideas. A contract wouldn't be worth the paper it was written on.
This also applies to someone who "contracts" with another to develop an idea or technology. There is no guarantee of payment because the contract would not be binding. And selling the idea is difficult because the buyer is unable to inspect the invention before purchasing it. He'd have to pay for it up front, without the ability to change his mind. In fact, legally the "buyer" would merely be giving a gift. It isn't an exchange because one half isn't property.
The same lack of security affects trade secrets. Imagine the following scenario: You invent a new motor that will revolutionize the world. It's a billion dollar invention. You've locked it up in your factory, so nobody can copy it. You're careful not to let anyone else see it. Someone breaks in at night and makes a copy of the plan. You call the cops, and they find their man. They fine him $100 for trespassing. After all, there was no theft involved. He might not have even broken any windows.
As I said, it's all or nothing. Either intellectual property rights exist, or they don't. If they don't exist, you can't rely on force to protect it, including retaliatory force. The government could not defend such contracts. It could not even consider the fact that it was the billion dollar motor plans that someone had taken. Given today's system of not presenting irrelevant information to a jury, you wouldn't even be able to tell them someone stole your idea. And that's because it wasn't stolen without intellectual property. Theft is logically dependent on property.
Take this another step. Say you write a novel. It's brilliant, and you've worked hard in order to make it. But it turns out you can't let anyone print it. If you give the novel to a printing press, they can just print it and not pay you anything. It's not theft, since you don't own it. It isn't property. Of course, you could buy your own printing press, and operate it yourself. You might still find a way of making money. But cooperation with others would be impaired.
Without property rights between men, cooperation is hampered because the product may simply be taken. Without intellectual property rights between men, the same problem exists. There cannot be a half-way point on this issue. Either intellectual property rights exist, or they don't.
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