Against Intellectual Monopoly

defended does not limit your ability to
enjoy the same benefit, so national defense is nonrivalrous. Put a different
way, national defense is a public good, because we all share equally in its
benefits. Economists argue that some form of government intervention is
needed for the provision of public goods: because you will benefit from my
contribution to the public good, there is a tendency for you to free ride off
of my contribution and for me to undercontribute. This is sometimes called
the tragedy of the commons - when something is commonly owned but
privately enjoyed, everyone tries to consume without contributing. Ideas, it
is argued, are nonrivalrous like public defense or the beauty of a sunset in
Capri - your use of the fundamental theorem of calculus in no way interferes
with my use of it. Ideas, it is argued, are prone to suffer the tragedy of the
commons: everyone trying to use common ideas without ever contributing to the common pool. However, this same line of reasoning goes, ideas,
unlike sunsets, are "excludable," meaning that we do not have to share ideas
with other people if we do not choose to. We can therefore solve the problem
of free riding on ideas by "protecting" them with intellectual monopoly.
    To make sense, the argument that ideas are a public good must refer
to abstract ideas, because only abstract ideas are nonrivalrous. Once we
recognize that the relevant economic entities over which property should
be exercised are not abstract ideas but copies of ideas, our perspective on
intellectual property changes. Copies of ideas are obviously both rivalrous
and excludable - they are not a public good. To put this in perspective, it is
obvious that my drinking from my cup of coffee does not affect your use of
your cup of coffee. No one would go on to suggest from this fact that coffee
is nonrivalrous or a public good and that special laws and subsidies are
needed in the coffee market. It is true that there is legal protection for cups
of coffee - if you drink my cup of coffee without my permission, this would
be an act of theft, and you would be subject to various civil and criminal penalties. Economists regard these good property rights in the usual fashion
as securing the fruits of labor and providing incentive to care for valuable
assets. But notice that less legal protection is needed for your copy of your
idea than is needed for your cup of coffee - while it may be relatively easy
for me to steal your cup of coffee by threat or when you are not looking,
it is fairly difficult for me to learn your idea without your active assistance.
Indeed, it would seem that the legal protection needed is no more than
the legal right not to be subject to physical torture or coercion - a right
that we enjoy (or according to recent U.S. legal developments, perhaps not)
regardless of the state of copyright and patent law. Be this as it may, there
is no serious challenge to intellectual property in the sense of your right to
determine to whom, under what circumstances, and at what price you will
transfer copies of your idea.

    All of this brings us to what intellectual property law is really about -
a reality that is often obscured by analogies to other types of property.
Intellectual property law is not about your right to control your copy of
your idea - this is a right that, as we have just pointed out, does not need
a great deal of protection. What intellectual property law is really about is
my right to control your copy of my idea.
    To return to the Zimbabwean example, suppose that Wind, instead ofseiz-
ing Buckle's farm, had purchased some unused land belonging to Buckle.
If he then started his own farm on that land and entered into competition with Buckle, maybe imitating Buckle's selection of crops and farming
techniques, Buckle might not much like that. But we would scarcely use
derogatory words such as pirate to describe Wind's behavior in this case.
Yet this is exactly what proponents of intellectual monopoly do. When I
buy from you a copy of your idea and reproduce or improve it, I enter into
competition with you. You might not much like that, but you still have the
money I paid you for the price you set as well as your original copy of your
idea, which you are free to use or sell or do with as you please.
    To summarize then, it is copies of ideas that have economic value. Copies
of ideas should have the usual protection afforded to all kinds of