Locke and IP: Not All Property Is Created Equally

We’re all familiar with the Lockean concept of life, liberty, and property. This is the cornerstone of the notion that one of the essential purposes of government is the defense of property. Traditionally, intellectual property has fallen within the purview of this Lockean view of property, however, the Fine Brothers fall-out is a reminder to us that (1) the digital landscape is still quite new and therefore, our approach to issues within this landscape requires more thought. In his article,Intellectual Property: Policy for Innovation, not ‘Fairness’, Matthew Lievertz maintains that traditional property rights, as suggested by Locke fail within the digital landscape because these rights depend on the scarcity of that property.

He uses an example. If Joe owns property and Sue acquires it, then Joe no longer has it, and Sue has harmed Joe (by theft). Joe’s property is scarce. If, on the other hand, Joe has an idea (i.e., owns intellectual property) and Sue acquires it, then Joe still has it as well as Sue, and Sue has not harmed Joe. Here, we see that in the case of intellectual property, an unlimited number of people can possess it at the same time. Intellectual property is simply not a scarce resource. Lievertz saves the much-discussed ethics of Internet piracy for another day, but what we can glean from comparing Lockean property theory to the development and enforcement of intellectual property law within the digital landscape is that not only is the concept of property different on the internet, but the promotion and protection of IP also looks different. What the Fine Brothers fall-out teaches us is that certain protection practices stifle motivation to innovate and the present challenge for us all is to achieve and maintain the balance (protecting IP while encouraging innovation), offering enough control to motivate authors, inventors and publishers but not so much control as to threaten important public policy aims.