It is sometimes argued that legal protection of intellectual property is illegitimate because intellectual objects are not subject to conditions of scarcity and can simultaneously be consumed by everyone. I argue that this line of argument is problematic. By itself, the claim that intellectual objects are unlimited and can be consumed by everyone simultaneously does not imply that we have some sort of moral claim to intellectual objects that is inconsistent with the legal protection of intellectual property. While this claim is certainly a reason against thinking that protection of intellectual property is morally justified, it falls well short of conclusive because it does not contain any information about what respective interests the creator and third parties have in intellectual objects. I conclude that a proper analysis of the legitimacy of intellectual property rights must take into account the morally protected interests that content-creators have both in the expenditure of their limited resources (e.g., time, energy, and intellectual labor) and in the value that the expenditures of such efforts brings into the world.

The issue of whether the state is morally justified in affording content-creators a legal right to exclude others from the content of their creations is a sharply contested issue in information ethics. Once taken for granted as morally legitimate, intellectual property rights have come under fire in the last thirty years as evolving digital information technologies have severed the link between expression of ideas and such traditional material-based media as books and magazines. These advances in digital technology have called attention to unique features of intellectual content that seemingly problematize intellectual property protection; any piece of intellectual content, for example, can be simultaneously appropriated by everyone in the world without thereby diminishing the supply of that content available to others. This essay provides an overview and assessment of the issues, arguments, and counterarguments on intellectual property.

At the outset, it is important to distinguish the general issue of whether intellectual property is justified from the more specific issue of whether a particular body of intellectual property law (e.g., copyright law in the U.S.) is justified. Obviously, a particular body of law protecting intellectual property will not be justified if intellectual property protection is, as a general matter, unjustified, but the converse is not true. One can coherently (and reasonably) believe that content-creators have intellectual property rights that should be protected by law but believe also that many elements of existing copyright and patent law in Western nations are unjustified. The arguments in this essay are concerned primarily with the general issue and not with the more specific issue of whether the law of intellectual property (hereinafter IP) in Western industrialized nations is morally legitimate – though some of the more problematic features of existing law will be discussed briefly at the end of this essay.

In this essay, I consider arguments both for and against intellectual property rights that are premised on some conception of a morally significant information commons. In particular, I consider the argument for a morally protected information commons that is grounded in Locke’s famous proviso limiting original acquisition of material property to situations that leave enough of the resource to others and Hardin’s famous argument that holding material property in common leads to overuse and depletion – a tragedy of the commons. I argue that neither argument is directly applicable to information objects.

I attempt to show that the law should, as a matter of political morality, provide limited protection of intellectual property interests. To this end, I argue that the issue of whether the law ought to coercively restrict liberty depends on an assessment of all the relevant competing interests. Further, I argue that the interests of content-creators in controlling the disposition of the content they create outweighs the interests of other persons in using that content in most, but not all, cases. I conclude that, in these cases, morality protects the interests of content-creators, but not the interests of other persons and hence would justify limited legal protection of the former interests.

Forthcoming in Emma Rooksby (ed.), Information Technology and Social Justice, Idea Group, 2006.

The claim “information should be free” (hereinafter ISBF) has become a rallying cry for those who believe intellectual property rights are illegitimately protected by the state. In this essay, I will attempt to (1) determine what ISBF means (which will require determining what the concept-term “information” means as used in ISBF); (2) evaluate what kind of support there is for ISBF; (3) determine whether ISBF conforms to ordinary views about the propriety of certain restrictions on the free flow of information; and (4) determine whether ISBF provides good reason for thinking that legal protection of intellectual property rights is illegitimate. I will argue that the most charitable interpretation of ISBF lacks adequate support in mainstream moral views and thus cannot ground a wholesale challenge to the legitimacy of intellectual property rights.