Intellectual Property and Empathy

Vince asks,

"I'm reading Richard Posner's "The Economic Structure of Intellectual Property Law" right now and I am interested in the tension I see between the economic approach and the moral Approach to intellectual property. Economically, Posner writes that "[t]he principle difference between the law of intellectual property and the law of physical property is that transaction costs tend to be much higher in the former case. This difference argues for less extensive propertization of intellectual than of physical property." Posner contrasts this idea with a Hegelian concept of possession of property as the mark of the free man. Under this idea, some argue that intellectual property rights should be inalienable.

I'm not that far into the book at all, and this is probably an oversimplification of the issues, but it's enough to present a question:

Do you think intellectual property rights should be inalienable?"

I do not think that intellectual property rights should be inalienable.

The core of the ethical justification is that one is rights-based, one is entitled to the fruits of one's labors. If you created it, it ought to be yours to do with as you see fit. In this case the it isn't actually an it and that is what causes the problems because when the it is an it, when you have it, I cannot. But with intellectual property, I may arrive at it independently or by giving it to me, you still have it. As such, the propertization is based on something that one could easily argue is a category mistake. That being said, clear cases such as someone pirating one of Kerry's books is clearly morally problematic.

The question gets even more interesting, however, when you think about what we now consider to be covered by intellectual property law. Gene sequences for members of natural kinds, for example, are considered intellectual property. Here, you have discovered, not invented or created that which is considered your intellectual property. the scientific version of finders keepers. Now, you may have had to create a means of discovery, but what is protected is not the means but the result as there may be other means of discovering the same information. Do the features of humanity itself belong to humanity as a whole or is this something that can be owned? What about cases in which making the information public will save innocent lives?

The utilitarian arguments in favor of propertization contend that the profit motive inherent in a competitive marketplace is more likely to bring advances than the open sharing of information which only gave us the entire history of science up until the last couple decades. But surely, even if you buy this consequentuialist line, there will be situations where it will be more than appropriate to strip someone of their intellectual property rights for the good of all. If we were having a pandemic and a drug company was intentionally slowing production to further increase scarcity or to force politicians into a less advantageous bargaining position (not that big pharma would ever do such a thing, the wonderful, caring humans that they are), it would seem to me necessary to put the usual market-based incentives by the side of the road and do what we need to do.

Less dire versions of the question can be found in the time it takes for published material or music to move into the public domain. Surely, there is no problem here stripping the heirs of an artist of the exclusive rights to that which is part of the culture. Yes, artists need protection, but 75 years? 100 years? given that artists emerge from and are nutured by their cultures it does not seem unreasonable that the propertized compositions or recordings would resort to communal ownership.

JMH asks,

"Is it possible to have too much empathy?"

Yes. Empathy is a good thing, even in a Supreme Court Justice. Realizing that other humans are in fact humans (and we certainly should extend that beyond humans to other sentient beings) is essential for community and as Aristotle correctly said, we are political animals in that we need community of some sort to flourish.

But can one overempathize? Yes. there will be times and situations where one needs to build an emotional wall to protect oneself from the suffering of others. Aid workers or reporters in a natural disaster or war zone, for example, will see horrible things and in order to do what they need to do to help folks in need, they need to distance themselves. I have a dear friend who is a surgeon and they are known for having very dark senses of humor, something necessary when you deal constantly with very ill people, some of whom will tragically die despite your best efforts.

From a more mundane point of view, Nel Noddings who argues for a care-based system of ethics contends that you cannot care for everyone or else you will not be able to adequately care for anyone -- unless of course you are Bono or Oprah. We need to understand that we are limited and that in some sense we can only extend ourselves so far. That said, few of us come anywhere near that limit and we all could certain stand to be more empathetic.