Is Intellectual Property Just?

TL;DR I think the answer to that question is a clear no. As I’ve thought about law and property and economics, I can’t help but wonder whether our practices in these areas are still just in the digital age. At first, my impulse was to say that we’ve failed by taking a pre-digital legal apparatus and applying it to new forms of knowledge. But the conclusion I’ve come to runs deeper than that. Not only have we applied an apparatus to something it was never intended to address, the apparatus itself is flawed. The problem is not the digital age; the problem is intellectual property as a concept.

What Thomas Thinks

St. Thomas Aquinas provides a helpful framework for us here.1 He tells us first that it is “altogether sinful” to sell something for more than its just price. Of course, he offers some qualification here. In the case where there is benefit to both buyer and seller in a transaction, that transaction ought to occur at the fair market value. For example, if Bob owns a piece of land that is beyond his capacity to maintain, and if Joe can use Bob’s land for productive purposes, Bob should sell Joe his land for whatever it’s worth and no more. But it is also possible that Bob will suffer some loss by selling his land. Maybe Bob uses his land to produce a portion of his family’s food, and he suffers the loss of that food source if he sells the land. In this case, Bob may offer Joe a price sufficient to cover the value of the land and the loss he incurs. Finally, if Joe knows that Bob’s land has immense productive potential that will later increase its value, Joe may offer to pay extra in accordance with that value.

In the end, we have three basic parameters for determining the sale price of any good: market value, seller’s loss, and buyer’s gain. Furthermore, the buyer and seller have different obligations with respect to these parameters. The seller always has the higher degree of moral liability because he has more rights than the buyer; namely, he has the right of disposal. Therefore, the seller is obligated by his freedom in ownership to offer a fair price in accord with (1) market value and (2) personal loss. On the other hand, the buyer is free to pay more for a good in proportion to his advantage, but he is not obligated to do so, particularly if he is able to allocate the amount of the additional payment to other, greater goods.

Application to Digital Marketplaces

There are a few things to notice about digital marketplaces based on this paradigm. First, the market value of most digital products is zero. A simple supply v. demand graph illustrates this. Normally, supply and demand interact in order to determine an equilibrium price. But what if supply is infinite? In this case, the supply curve is simple x=0. No matter the demand, the equilibrium price will always be zero. This is the situtation for digital products. The supply is basically infinite.

Of course, this is all assuming that we arrive at equilbrium prices naturally. I’m open to other options, but as far as I’m aware, supply and demand are brute economic realities. There are instances, however, where supply and demand are artificially manipulated. This is how DRM (Digital Rights Management) works. By selling a digital product with a DRM mechanism attached, I can artificially limit supply. De Beers does a similar thing with diamonds, and the federal government does it with agricultural products. By limiting supply, sellers can force a price floor on their goods. It’s easy to see the sin in the federal government’s letting food rot in warehouses, but the same applies to digital media. It is undeniably sinful to sell a digital product for more than zero.

But we also have to consider the loss to the seller. What does the “content creator” lose by giving his creations away for free? In short, he loses nothing. Digital products are nothing more than files on a hard drive. If I make a copy of a file and send it to you, I don’t suffer any loss at all. Nothing has changed on my end. Or rather, nothing has changed on my end for the worse. There is a change, but it’s to the benefit of the creator. Creators create in order for their works to be seen and used.

But what about the resources a creator puts into his work? Should he not receive compensation for that? Yes and no. As we’ve already discussed, digital products are economically worthless. So in that sense, the seller is not entitled to anything. If the buyer will see some economic gain from his acquiring the digital product, he may certainly pay the seller in accord with that gain, but the seller does not have the freedom to require such a payment from the buyer. The impetus is always on the buyer to provide that.

At this point, it’s worth admitting that this is only a simple application of something one guy said a thousand years ago. But St. Thomas draws on a deep well of Christian wisdom, and I think he serves as a great starting point for thinking through difficult ethical questions in the digital age. He’s also far enough removed from our world and our particular worldviews to serve as an objective and helpful critic of modernism (excuse the anachronism). But I understand how modern sensibilites might buck against an assertion like “intellectual property is unjust,” so I’ll end with a parable that might help illustrate my argument.

The Man with the Manna Machine

There once was a man who invented a machine. He called it the “Manna Machine.” It was very simple to operate. You simply told it what you wanted to eat, and it sent it out on a conveyor belt. It required no inputs and no raw resources. It simply created the meal from nothing, and it was always absolutely delicious.

The machine was good, but he wanted to test it to see its limits. So he opened up a restaurant with an infinite menu. Every meal was ten dollars, and you could order anything you wanted. It was always good. One day, a man walked in and said, “You know, you should really make more of these machines and sell them.”

So being a good, entrepeneurial millenial, he packed his machine up and took it down to his local venture capitalist. He gave his pitch, and the venture capitalist decided to invest. The VC gave him a blank check and a list of contacts across the world. The man took his check to the bank and began his world tour. He took his machine all around to expound its merits. He sold machines to governments and communities across the globe, and he soon became an international sensation.

But one day, his VC called and said, “I have an even better idea. Have you heard of the subscription model? We sell the machine for the original price, but we’ll charge an additional price to make it function. It’s unlimited money!” This made the man uncomfortable. He responded, “But that’s extortion! They’ve already purchased the machine; the food should be unlimited.” The VC paused and said, “But this was all your idea, wasn’t it? The machine has always produced unlimited food, but we have always charged for it. In fact, that’s just what you did when you opened your restaurant! The machine is one thing, but the food is an entirely different product.”


Is your impulse not to condemn the man and the venture capitalist? They took something that was good and distorted it in pursuit of profit.

I’m not arguing that we shouldn’t support creators and inventors, but I do question our method for supporting them. It’s at least worth considering the implications of our practices. Is it at least possible that our standards of intellectual property rights are unjust? Could we have gotten it wrong?

  1. The following discussion derives from the Respondeo in ST II-II.77.↩︎