As a practical reality, intellectual property is one of the most carefully-protected property classes out there today. The combination of statutory law, common law, and code-enforced law have created a legal mess that is almost as hard to wrap your brain around as the tax code. The number of interested, huge, well-funded parties doesn’t help.
But in a purely hypothetical, analytical, theoretical world, I have a question: does intellectual property exist, as a first principle?
Taken for granted: real property exists. This isn’t some argument from radical skepticism that I’m presenting here. I don’t want you to steal my car and drive away with it. I want to kick you off of my land (or my little street corner, as the case may be) if I don’t like you. This kind of property is not what I mean to question.
Intellectual property is fundamentally different. You cannot touch it. Or, as Scott Adams says, you cannot eat it if you try hard enough. I can certainly understand creating a set of rights associated with intellectual property to, as the US Constitution says (approximately), encourage progress in the arts and sciences. But that’s a different question entirely.
My question is this: assuming we decided as a society that we aren’t interested in the trade-off that our Constitution makes concerning IP, would intellectual property exist anyway? I have some ideas about how to think this through, but I haven’t managed to find the time to do so yet. Anyone have an opinion?