Intellectual Property Rights Are a Power to Stop Other People from Exercising Their Own Property Rights; the Law of Copyrights and Patents Violates the Very Rights Locke Defended

This means that IP rights are not property rights, but are in fact a power to stop other people from exercising their own property rights. If I own a copyright in a book, I can use the force of government to stop someone from using their own paper and ink to produce their own copies of the book. If I own a patent on an invention, I can use the force of government to shut down someone else’s factory that produces copies of my invention, even though the other person is using his or her own equipment, machinery, and components. I can even do this if the other person is not using a ‘‘copy’’ of my invention, but independently invented it all on his or her own. For a libertarian, this is unjust because it is using aggressive force against peaceful people. As law professor Tom W. Bell has put it:

By invoking state power, a copyright or patent owner can impose prior restraint, fines, imprisonment, and confiscation on those engaged in peaceful expression and the quiet enjoyment of tangible property. Because it thus gags our voices, ties our hands, and demolishes our presses, the law of copyrights and patents violates the very rights Locke defended.

So according to libertarian theory, IP rights are not ‘‘property rights’’ at all, but are a government-issued license to attack property rights—and therefore should be abolished.

Rand’s attempt to justify IP fails under this framework because it presumes that ownership of ideas is possible and legitimate. So does Rothbard’s attempt to ground IP in contract. We can see why by comparing Rothbard’s contract-based copyright to a case in which Jones makes a contract with Smith to tell him a secret. A contract to keep a secret, standing alone, is legitimate—people can always make deals to do or not do things. If Smith tells everyone Jones’s secret, Jones rightly can sue Smith because he broke their deal. Jones cannot, however, sue everyone else in the world who now knows the secret to stop them from repeating it; he did not have contracts with those people and therefore cannot claim any rightful ownership over them, the ideas in their heads, or their property. And so it is with copyright: a seller can make his buyers agree not to copy a book, but he may not stop others who happen to see it from doing so. Likewise, an inventor may not stop someone who sees his or her invention (say, a machine) from using this knowledge to make a similar or better machine.

--Jacob H. Huebert, Libertarianism Today (Santa Barbara, CA: Praeger, 2010), 208.