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August 09, 2007

Yglesias vs. Mossoff on intellectual property

Considering recent proposals to apply intellectual property law to fashion designers, prominent liberal blogger Matthew Yglesias recently posted the following:

The idea of copyright is not that creators deserve your money, but that you, the citizen, deserve a world in which creators have incentives to create. The fashion industry is perfectly vibrant as is.

I responded with the following in the comments section:

Matt, I disagree, and I wonder what your reason for thinking this is. Saying that copyright is not a matter of the creator's desert is like taking the "P" out of "IP." Surely creators of an item of intellectual property deserve the right to set the conditions for the disposal of their property, insofar as there is a right to property.

I for one would argue that IP and property in general are a matter of moral right. Now it is true that there is a historical tradition justifying copyright (and property rights in general) on utilitarian grounds. But a second historical tradition appeals to natural rights doctrine. Adam Mossoff, a law professor at Michigan State, has a piece outlining the second tradition, and its influence on the U.S. constitution here:

http://www.ipcentral.info/review/v1n1mossoff.pdf

For example:

State laws protecting intellectual property rights prior to the 1787 federal convention also reflected a Lockean influence; the New Hampshire legislature, to take but one example, enacted legislation to protect copyrights and other forms of intellectual property because “there being no property more peculiarly a man’s own than that which is produced by the labour of his mind.”22 Moreover, the evolution and creation of new types of intellectual property rights in the nineteenth century, such as trademarks and trade secrets, followed the contours of a labor theory of property.23 The initial definition and protection of trade secrets as property entitlements, for instance, derived its justification from the courts’ belief that such rights were similar to other property rights born of valuable labor and already protected by the law.

The rest of the piece deals with digital copyright, but in relation to the general question of whether copyright is property. Take a look.

IANAL, and I don't know what to think about the application of copyright law to the fashion industry. I think it's probably misguided and Walker may be right that patent law is better applied. But this is not because copyright isn't a right.

NS

UPDATE: Professor Mossoff himself has now added a comment to the thread.

Posted by admin at August 9, 2007 02:37 PM

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