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CONTACT: Amy Smorodin
February 13 , 2006
(202) 289-8928
Libertarians Can Support IP Protection
Professor Epstein Addresses Split with 'Classical Liberals'

WASHINGTON D.C. - Classical liberals support limited government and often find themselves in agreement with hard-core libertarians when addressing the fevered growth of government, but they sometimes differ on the merit of intellectual property protection. University of Chicago Law Professor Richard Epstein takes on this schism in "Why Libertarians Shouldn't Be (Too) Skeptical About Intellectual Property," a new Progress on Point publication from The Progress & Freedom Foundation.

Libertarians, Epstein writes, are inclined to view property as best dealt with through contract. They are hostile to IP rights in general, and copyright an patent rights in particular, because these aren't viewed as "natural" rights over tangible things stemming from the actions of individuals. But Epstein argues that "these rights are defensible because they help advance human happiness in a wide range of circumstances, so that their creation under a set of general prospective rules satisfies the most exacting of social criterion. They tend to leave no one worse off than in a state of nature, and indeed tend to spread their net benefits broadly over the entire population."

Differences in how the law treats both tangible and intellectual property do not "signal any disintegration in the overall conception of property rights," Epstein writes, as in all cases "we should be on the lookout for strong social improvements that cannot be achieved by voluntary means. In those cases, purposive innovation on property rights, by either courts or legislatures seems appropriate." The law of intellectual property "should be subject to constant analysis and review," he says, "but not to any a priori attack on the supposed inferiority of intellectual property rights to those in tangible objects."

The similarities and differences between intellectual property and real property, and the ideological differences between classical liberals and libertarians on intellectual property protection, have been discussed and debated at length on PFF's IPcentral blog ( In "Why Libertarians Shouldn't Be (Too) Skeptical About Intellectual Property," Epstein adds to the discussion in his second paper for PFF since joining IPcentral's Academic Advisory Council. Epstein is the James Parker Hall Distinguished Service Professor of Law, Faculty Director for Curriculum, and Director of the Law and Economics Program at the University of Chicago, and the Peter and Kirstin Bedford Senior Fellow with the Hoover Institution.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



The Progress & Freedom Foundation