Utilitarian Defenses of IP
Advocates of IP often justify it on utilitarian grounds.
Utilitarians hold that the “end” of encouraging more innovation
and creativity justifies the seemingly immoral
“means” of restricting the freedom of individuals to use
their physical property as they see fit. But there are three
fundamental problems with justifying any right or law on
strictly utilitarian grounds.
First, let us suppose that wealth or utility could be maximized
by adopting certain legal rules; the “size of the pie”
is increased. Even then, this does not show that these rules
are justified. For example, one could argue that net utility
is enhanced by redistributing half of the wealth of society’s
richest one percent to its poorest ten percent. But even if
stealing some of A’s property and giving it to B increases
B’s welfare “more” than it diminishes A’s (if such a comparison
could, somehow, be made), this does not establish
that the theft of A’s property is justified. Wealth maximization
is not the goal of law; rather, the goal is justice—giving
each man his due.39 Even if overall wealth is increased due
to IP laws, it does not follow that this allegedly desirable
result justifies the unethical violation of some individuals’
rights to use their own property as they see fit.
Finally, even if we set aside the problems of interpersonal
utility comparisons and the justice of redistribution
and we plow ahead, employing standard utilitarian measurement
techniques, it is not at all clear that IP laws lead
to any change—either an increase or a decrease—in overall
wealth. It is debatable whether copyrights and patents
really are necessary to encourage the production of creative
works and inventions, or that the incremental gains in
innovation outweigh the immense costs of an IP system.
Econometric studies do not conclusively show net gains in
wealth. Perhaps there would even be more innovation if
there were no patent laws; maybe more money for research
and development (R&D) would be available if it were not
being spent on patents and lawsuits. It is possible that companies
would have an even greater incentive to innovate if
they could not rely on a near twenty-year monopoly.
There are undoubtedly costs of the patent system. As
noted, patents can be obtained only for “practical” applications
of ideas, but not for more abstract or theoretical
ideas. This skews resources away from theoretical R&D.
It is not clear that society is better off with relatively more
practical invention and relatively less theoretical research
and development. Additionally, many inventions are patented
for defensive reasons, resulting in patent lawyers’
salaries and patent office fees. This large overhead would
be unnecessary if there were no patents. In the absence of
patent laws, for example, companies would not spend
money obtaining or defending against such ridiculous
patents as those in the Appendix. It simply has not been
shown that IP leads to net gains in wealth. But should not
those who advocate the use of force against others’ property
have to satisfy a burden of proof?
We must remember that when we advocate certain
rights and laws, and inquire into their legitimacy, we are
inquiring into the legitimacy and ethics of the use of force.
To ask whether a law should be enacted or exist is to ask:
is it proper to use force against certain people in certain
circumstances? It is no wonder that this question is not
really addressed by analysis of wealth maximization. Utilitarian
analysis is thoroughly confused and bankrupt: talk
about increasing the size of the pie is methodologically
flawed; there is no clear evidence that the pie increases with
IP rights. Further, pie growth does not justify the use of
force against the otherwise legitimate property of others.
For these reasons, utilitarian IP defenses are unpersuasive.