A point so fundamental: Nozick on intellectual property

In Anarchy, State and Utopia, Nozick defends a libertarian theory of property rights under a minimal state. Whether libertarian theory supports or excludes intellectual property (IP) rights remains controversial. This paper shows that, although Nozick only mentions intellectual property (IP) a few times in the book, these discussions turn out to be surprisingly pivotal for his arguments. Indeed, Nozick calls IP rights a ‘fundamental’ issue for libertarian theory. So, it is important to analyse the structural, methodological, and substantive implications of what Nozick says (and does not say) about IP rights. I will show that in Part 1 of ASU, IP rights illustrate the non-ideal problem of persistent disagreement, which shows that the minimal state cannot simply administer justice; it must also tackle disagreements about the content of justice. In Part 2 of ASU, Nozick discusses patents to illustrate the limits of the Lockean Proviso. His embrace of counterfactual reasoning opens the surprising possibility that even property rights in physical resources may be up for time limitations, inheritance laws, or other proviso-motivated regulations. Overall, Nozick’s discussion of IP rights illuminates the somewhat neglected role of non-ideal libertarian theory, epistemic indeterminacy, counterfactual reasoning, and pragmatic, ‘rule-of-thumb’ remedies in ASU. In the final analysis, Nozick does not develop a fully coherent picture of IP rights, and his proposed solution, putting time limits on patents, seems somewhat ad hoc. Although IP rights play an underappreciated role in the book, his discussion raises more questions than it answers. The epistemically humble libertarian (or liberal) should approach the regulation of IP rights, and other thorny issues of real-world property-ownership, with an open mind.