The Nature of Intellectual Property

Don't miss the discussion between Eugene Volokh and Lawrence Solum over the nature of intellectual property and why we protect it at all.

The point that I want to focus on is from Eugene:

2. Property as a limit on others' freedom of action. From this follows another important point: All property that has a right-to-exclude component is a limit on others' freedom of action. If you own your land, this limits my freedom to walk on it.

Now we often don't perceive this as limits on freedom of action, because we're used to it, and aren't much troubled by it. But sometimes we do sense it: For instance, when there's talk of taking public beaches (i.e., beaches open to all, with no individual having a right to exclude others) and turning them into someone's private property, people might say "Hey, that means I won't be free to go to that beach any more." Likewise, homeless people who want to take shelter on private property may be keenly aware that the owner's right to exclude interferes with their liberty to go onto that property.

All property is a limit on other people's freedom of action. Yes. But IP is also a limit on how other people use their own unrelated property.

Because your computer belongs to you, I can't seize it and start using it without your permission. Your property right is a restriction on my actions. But unless I happen to be in the vicinity of your actual computer -- an embodied, specific, physical thing -- there is no chance of that happening anyway.

But with IP, the situation is different. If you put a few words together in a particular order as a title of your business and deem it a "trademark," the law might forbid me from putting a few similar words together so as to form a similar phrase, even if I have never heard of your trademark and have never been within a thousand miles of you. This is not just a restriction on my freedom of action, but on the use of my own property. The law here is restricting what words I can print on my own business's promotional literature, what words I can place on the sign in front of my business, etc., etc.

In other words, the whole point of invoking IP law is to prevent other people from engaging in speech by means of their own physical property. I can't quite put my finger on it, but this strikes me as odd.