C4SIF.org

Adapted from my Tweet.

Replying to a previous tweet, which stated: “All property is fundamentally intellectual.” This is the Objectivist bait and switch. All property involves the intellect–the mind, rationality, decisions, ideas. Sure. All property involves labor too. Why not say all property is labor? You need to start with a definition. What do you mean by property? [continue reading…]

Anna’s Blog argues that “Copyright reform is necessary for national security“. The argument is that American companies are hobbled in using copyright-protected works (such as that on Anna’s Archive) to train their AI LLM models, but Chinese firms have no such compunctions. Thus, US copyright law should be modified to make it easier for American AI companies to use this data to train their AIs—for example by reducing the copyright term and providing other safe harbors.

It’s a pretty flimsy and unprincipled argument, and somewhat nationalistic, and seems unaware of many other proposals for IP reform (and abolition), e.g. my own anti-IP work (e.g. You Can’t Own Ideas: Essays on Intellectual Property), proposals for reform such as “How to Improve Patent, Copyright, and Trademark Law” and those by others such as Tom Bell (Tom Bell on copyright reform; the Hayekian knowledge problem and copyright terms).

I received a couple questions from someone about IP and AI.

Question 1:

we could imagine an AI system without any censorship which can quote anything without any restrictions and provide access to any information that is available, anyone could create a website with any pirate content they want and it uses modern technologies allowing to provide this service without any way blocking it. How long IP could exist if there was a tool that completely ignores human made laws and lets information live freely?

Kinsella:

I’m not quite sure what you are asking. I think copyright is incompatible with AI. You can’t have both. That’s the problem with copyright. It’s already affecting AI. See, re Sarah Silverman’s suit against OpenAI, “AI Suffers Setback As Judge Trims Case“; and “The Times Sues OpenAI and Microsoft Over A.I. Use of Copyrighted Work” (“Millions of articles from The New York Times were used to train chatbots that now compete with it, the lawsuit said”).

Response:

Obviously OpenAI is affected by the government regulations, I am talking about black market version of it, that doesn’t care about made up laws and acts strictly within voluntary cooperation. The question is: if there was a distributed system (kind of like bitcoin is) that couldn’t be blocked by the government and allowed using AI without any restrictions, how in your opinion would it change the mindset of the people regarding copyright?

Kinsella:

Hard to say. Probably not much. They are too confused about IP and copyright to start to understand it just because of some obvious examples. Instead they would (a) minimize the example and focus on how the unregulated blackmarket AI is also being used for bad things (it might give racist answers etc., or “for crime,” like Bitcoin or The Silk Road) and (b) they would say, “well this just means copyright law is being abused here and all we need to do is find the right ‘balance.'” No one can ever think in principled terms.

After all think of how copyright obviously hobbles Youtube, but no one says we should abolish copyright because of this. They just moan about “abuse” and say the system needs to be tweaked or improved or fixed to achieve the right “balance.” It gets tedious to hear this nonsense over and over.

So I expect copyright to continue to hobble AI (patents might too; see how nChain/Craig Wright tried to use both copyright and patents, maybe trademark too, I can’t recall, as threats against the bitcoin ecosystem).¹ This will mean it will have reduced functionality and it will be more expensive as the AI companies are extorted into paying ransom in the form of “license fees” to book publishers, newspapers, and others with content on the Internet. It’s going to hold back human progress, as IP always does. No offense, Heritage Foundation, Cato, Independent Institute, Federalist Society, and others.²

Question 2:

Intellectual property is one of the most fascinating and, at the same time, controversial concepts created by the state to regulate interactions between people. The term itself is essentially an oxymoron because ideas, knowledge, or creative expressions cannot be “owned” in the same sense as physical objects. You cannot restrict the spread of a thought once it enters someone else’s mind. Yet the state has invented rules that allow this to happen through coercion, restrictions, and penalties.

True property is based on the principle of self-ownership: you own your body and, therefore, the fruits of your labor if they are created without violating the rights of others. But can it truly be considered a violation to “copy” an idea that someone has heard or seen? If I create a copy of your book or invent a similar machine, does that really harm your property? After all, the original remains with you, and you have not lost anything. This contradicts the very nature of property, which aims to avoid conflict over scarce resources.

The system of intellectual “property” benefits only those who wish to use coercion for profit: corporations, states, and bureaucrats. Authors, inventors, or artists receive only an illusion of protection, which quickly shatters against the reality of lawsuits, patent trolls, and bureaucratic obstacles. In contrast, true freedom of creativity and innovation comes from open systems where ideas freely circulate and enrich society.

Everyone who creates something in this world has the right to decide how and with whom to share their work. If your ideas are truly valuable, you will find those willing to support you voluntarily. But imposing a monopoly on thought is an attack on the freedom of others, on their right to use their own minds, to create, and to share their ideas.

Thus, the issue of intellectual property is ultimately a question of freedom versus coercion. A free society does not need state patents or copyrights. It needs a space for collaboration where people create, copy, improve, and freely exchange ideas without fear of bureaucracy or legal sanctions.

Kinsella:

This is not bad, and it’s aiming at the right answer. There are few things I would tweak.

First, a pedantic point. You write: “the issue of intellectual property is ultimately a question of freedom versus coercion”. We libertarians oppose aggression; libertarians sometimes use “coercion” as a synonym for aggression, just like we sometimes (sloppily) say that we oppose “violence.” But not all coercion is aggression, just like not all force or violence is aggression. See my posts The Problem with “Coercion” and The State is not the government; we don’t own property; scarcity doesn’t mean rare; coercion is not aggression.

Second, you write: “True property is based on the principle of self-ownership: you own your body and, therefore, the fruits of your labor if they are created without violating the rights of others.”

Here, you speak of “true property.” As one legal scholar explains,

In the United States, the word property is frequently used to denote indiscriminately either the objects of rights … or the rights that persons have with respect to things. Thus, lands, automobiles, and jewels are said to be property; and rights, such as ownership, servitudes, and leases, are likewise said to be property. This latent confusion between rights and their objects has its roots in texts of Roman law and is also encountered in other legal systems of the western world. Accurate analysis should reserve the use of the word property for the designation of rights that persons have with respect to things. (( See Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) [LFFS], ch. 2, App. I. ))

So the question is not what “is property” but what human actors have property rights to. As Rothbard explains, all (human) rights just are property rights; and all property rights are rights in scarce resources.³ And to be just—according to libertarianism and the private law—these property rights must assigned in accordance with (1) original appropriation (occupation; Lockean homesteading) or (2) contractual title transfer from a previous owner.⁴

I would also slightly disagree with your wording: “you own your body and, therefore, the fruits of your labor if they are created without violating the rights of others”. We do not own labor, or the “fruits of” our labor. We own previously-owned scarce resources acquired either by original appropriation or by contractual title transfer from the previous owner. Neither one of these actions “creates” the “thing” owned, nor do they require the assumption that an actor owns of the “fruits of his labor”. When an actor appropriates or occupies an unowned resource, he does not create it; it already existed; he merely appropriates it. Yes, yes, this effort involves the use of labor (and intellect, knowledge, and so on), but the labor is merely a type of action (as opposed to leisure); labor is not owned, and neither is “action” or “leisure.”⁵

It is true that laboring—rearranging an already-owned resource—is a source of wealth but not of property rights.⁶

In light of all this, I would also say that the problem with IP is not that ideas “are not property.” Even scarce resources are not “property”; as noted above, humans have property rights in scarce resources (determined in accordance with original appropriation and contractual transfer). The thing that I own is not “property”; it is something in which I have a property (ownership) right.

The problem with IP is not that ideas are “not property” or that IP is “not property”; the problem with IP law and the IP rights it creates, is that that IP rights violate existing property rights—since IP gives ownership rights to IP holders, over resources already owned by others in accordance with principles of original appropriation and contractual transfer. IP rights and IP law are unjust. This is the fundamental problem with IP rights.⁷

As I pointed out in “Intellectual Property versus Intellectual Property Rights“:

One mistake made by many opponents of IP is that they believe the problem with IP is that it is “not property,” which is one reason they are reluctant to adopt the loaded term “intellectual property.” But this is because they still hew to the common view that things we have property rights in “are property.” If they believe that IP law is illegitimate, this means that “intellectual property” is not actually “property”; that there is no such thing as “intellectual property”; or as some of them say, “intellectual property does not exist.” As this chapter will make clear, the problem with IP is not that it does not exist, but that IP rights and IP law are unjust. Inventions and creative works exist; patents and copyrights, and patent and copyright law, exist. The opponents of IP here remind me a bit of the natural law types who resist calling a bad law “law” but instead say things like, an unjust law is no law at all.

(See also my similar comments in “Munger on Property Rights in Words and Information.”)

1. Announcing the Open Crypto Alliance to Protect Bitcoin, Blockchain and Crypto; various tweets by . [↩]
2. Adam Mossoff, “The Patent System: America’s Innovation Engine,” Heritage Foundation Report (Jan. 23, 2025); see also Kinsella, “Independent Institute on The ‘Benefits’ of Intellectual Property Protection,” C4SIF Blog (Feb. 15, 2016). [↩]
3. LFFS, ch. 4, text at n.2. [↩]
4. See LFFS, ch. 4, 5, 9, et pass.; Kinsella, “Aggression and Property Rights Plank in the Libertarian Party Platform.” [↩]
5. See my posts Cordato and Kirzner on Intellectual Property; L ch. 11, text at n.33. [↩]
6. See LFFS, ch. 14, Part III.B; ch. 15, Part IV.C; Kinsella, “Locke, Smith, Marx; the Labor Theory of Property and the Labor Theory of Value; and Rothbard, Gordon, and Intellectual Property,” StephanKinsella.com (June 23, 2010); idem, “KOL 037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory,” Kinsella on Liberty Podcast (March 28, 2013).  [↩]
7. Kinsella, “Intellectual Property Rights as Negative Servitudes” (June 23, 2011). [↩]

I just recalled that my friend Greg years ago posted a nice broadside against patents “Ideas Are Not Property, On Dismantling IP,” in The Independent Political Report, back in June 2013. As he opens:

The US Supreme Court ruled unanimously this past week that human genes may not be patented. That was a good decision. However those in support of this ruling are by and large hypocrites. They vociferously decried the negative consequences of upholding such patents (limiting research, higher costs, limited choice) but then fail to acknowledge these same deleterious consequences occur for ALL patents. It’s not like these bad things don’t occur for “legitimate” patents but do occur for “illegitimate” ones. Patents are the problem, not their “legitimacy.”

Read more>>

I’m writing “The Problem with Intellectual Property,” to appear in Handbook of the Philosophical Foundations of Business Ethics, 2nd ed., Christoph Lütge & Marianne Thejls Ziegler, eds. (Springer, forthcoming 2025; Robert McGee, section ed.). (My “The Case Against Intellectual Property,” a different article, appeared in the first edition, Handbook of the Philosophical Foundations of Business Ethics (Prof. Dr. Christoph Lütge, ed.; Springer, 2013) (chapter 68, in Part 18, “Property Rights: Material and Intellectual,” Robert McGee, section ed.).)

One of my footnotes is becoming unwieldy and I will have to pare it down, so I include the full version here, as I have trouble killing my darlings. [continue reading…]

From a tweet (Jan. 7, 2025) (lightly edited):

David Gordon on IP. From 2013. After @jeffreyatucker left.

Gordon doesn’t seem to get the problem with Rothbard’s contractual copyright views. Or maybe doesn’t care, since he doesn’t seem to want to acknowledge serious problems in Rothbard’s argument about IP.

Perhaps this is why Gordon preferred and praised Butler Shaffer’s short, non-systematic, non-comprehensive, nonrigorous, ad hoc and scattershot critique of IP–because it doesn’t get “bogged down” in the details and thus doesn’t criticize Rothbard’s confused approach to IP. Butler’s sympathies are largely correct, but this is clear or systematic approach to the IP issue.

From Gordon’s “Introduction” (who ever heard of an “Introduction” to a “book” that is barely 15 pages long?):

Intellectual Property is a difficult topic, and a lesser author could easily get bogged down in legal technicalities. Not so Shaffer. As always, he penetrates to the fundamentals.

Gee, I wonder who he had in mind here.

P.s. it wasn’t just Tucker who was “pushing” my Against Intellectual Property, as Gordon claims—Hoppe encouraged me to publish it in the Journal of Libertarian Studies and then the Mises Institute awarded it the first O.P. Alford III Prize.

Oh, and I was asked to deliver the Rothbard Memorial Lecture at the Mises Institute’s Austrian Scholars Conference (2008), “The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism.” And to deliver the speech “Intellectual Property and Libertarianism,” at Mises University 2009 (July 30, 2009), which was also podcast on The Lew Rockwell Show and published as “Intellectual Property and Libertarianism” at Mises Daily (Nov. 17, 2009).

Hoppe, by the way, is totally on board with my approach to IP—no surprise, since my own approach is built on his own libertarian theories about property rights, scarcity, and so on.¹

***

Also, from an old Facebook post (April 19, 2015), commenting on David’s review of Shaffer, “Scarcity, Monopoly, and Intellectual Property” [archived comments]:
David Gordon on IP:
“In his discussion of innovation, Shaffer avoids a bad argument that, I regret to say, has beguiled several opponents of IP. It is correctly pointed out that ideas are not scarce, in one meaning of that term. Any number of people can make use of an idea at the same time. By contrast, economic goods are scarce: one’s use of economic goods excludes others from using them. In brief, ideas are non-rivalrous. From this, it is wrongly concluded that the creation of new and valuable ideas poses no problem: If ideas are not scarce, then they are abundant. Obviously, then, IP protection for them is absurd. It makes no more sense than property rights in air, a good which in normal circumstances anyone can have as much as he wants.

A parallel argument will serve to expose the fallacy. A common criticism of the free market is that it cannot supply public goods, such as national defense, in the economically optimal quantity. A public good is non-rivalrous: my consumption of defense, e.g., does not impede your consumption of it. It is alleged that this leads to undersupply of the good.
It would be a very poor answer to this complaint against the market to say, “This is not a problem! Just as the opponent of the free market has said, defense is a public, non-rivalrous good. If so, it is abundant — we need not then worry about its supply.” The error here is apparent: the fact that an indefinite number of people can consume a good at the same time does not show that there is as much of the good as people want. The application of this to the IP argument canvassed above is, I hope, sufficiently obvious.”

For a perhaps contrasting view, see Daniel Coleman and Manuel Lora on IP:

http://mises.org/daily/4553
“The technological advantages of sharing information point us to an important praxeological principle that also explains the nonviolence of this black market. Unlike the goods people exchange money for, information is nonscarce. Being nonscarce, it is a nonrivalrous good and, as such, it is free.

In fact, as Rothbard points out, nonscarce goods cannot even be economized — that is, they cannot be made the object of human action.[2] To see the relevance of this point to illegal movie downloads, consider another nonscarce good: air. For the most part, air remains only a part of the general conditions of human action and does not factor into the economizing of means to achieve ends. One can breathe as much air as he likes without exhausting its supply or decreasing the amount (or quality) of air left for everyone else.

It takes special circumstances to make air a scarce good and thus something that acting man must economize. For example, one might decide to dive to the bottom of the sea with the assistance of oxygen tanks — and thus face decisions on what to do with the limited amount of air available. Or, if the earth were to become polluted enough, the world’s breathable air supply could itself become a scarce good and an ongoing concern in human affairs.

We should observe that air, since it is a physical good, is scarce in principle but may be considered nonscarce insofar as its supply and ubiquity exceeds all of the potential uses to which acting persons can put it. But ideas and information are not physical goods, and therefore they are not only nonscarce in practice but also nonscarce in principle. It is impossible to diminish their supply or reduce their quality.

If information cannot be made the object of human action, and illegal digital content is but information, how is it possible for there to be a black market for it? What is it that really happens when users obtain illegal digital content? It is clear that no ideas are altered, exchanged, or diminished. Instead, the black market in information is simply individuals cooperating in order to manipulate their own private property — namely, altering the physical state of their computers in certain patterns. We term these patterns “songs,” “movies,” and the like, informally treating them like physical objects. But at no point does copying a pattern inhibit anyone else’s ability to enjoy that same pattern. It turns out that copying is not theft.”

Further deponent sayeth not.

nb Jeffrey Tucker

From the comments:

Kinsella:

Gordon’s article when posted had a vigorous comment thread, but now that’s all been deleted from Mises.org, unfortunately.

Some remnants I have from old email discussions:

“Dinch42
48p· 1 hour ago
Your argument in the first link is silly. Let’s use the “World Intellectual Property Organization” statistics as an unbiased look into patents as property rights. Then let’s compare the top ten innovative countries (all developed countries) to the bottom ten (all countries with almost no concept of property rights at all, let alone IP) and conclude that since the unbiased rankings from the World Intellectual Property Organization show that the top ten most innovative countries all have strong IP laws and the bottom ten have poor IP laws, IP laws must, in fact, be beneficial to society and must therefore be considered legitimate property. It is such a poorly argued position I don’t even want to bother with the other links.”

…

I don’t usually reply there, but I seem to have been already logged in somehow, so…:

James VanWinkle· 5 hours ago
It wasn’t until Mises.org introduced me to the IP debate from both sides that I realized I had to rethink my belief that intangible property rights made sense. Although I am still making up my mind, I have completely changed my mind and now see patents and copyrights (without the use of contracts) to not be property rights. What I am stuck on is “branding.” The use of brands allows one to “certify” a product. A consumer then can buy a product based on a brand’s reputation. A counterfeit product would not be excluded (it seems to me) if copyrights were not recognized.

So it seems that an important market tool would be lost without copyrights. Is that right?
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Bob_Robertson81p· 49 minutes ago
What I expect is that the “social standard” would apply. Such things as are not direct coercion remain things that people argue about, and seek adjudication for.

For example, if I want to find a MacDonald’s chain restaurant, and I look around and see what _looks_ like a MacDonald’s, and I go in and buy the food and discover that they are not, that might be considered fraud.

Now I went through this with Kinsella in years past myself: The bogus MacDonald’s is not defrauding the MacDonald’s _chain_, the people whom they are fooling, the customers, are who are being lied to if it is proven that the fake was deliberately impersonating the real in order to defraud the customers.

So “branding” certainly is an issue, and being as important as it is there will be ways of supplying that demand.
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Stephan Kinsella63p· less than 1 minute ago
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It is trademark that protects brands, not copyright. And trademark is also illegitimate, but for different reasons. All you need is regular contract and fraud law to handle the issue of someone deceiving the consumer. And it is telling that most people say you need trademark law to stop fraud–that it is based in fraud law. Well, then why do we need it–fraud is already illegal. In fact, trademark law does NOT require a showing of fraud. It only requires you show a “likelihood of consumer confusion.” You can show this even when the customer is not deceived–e.g. when they buy a fake Rolex, knowing that it is fake. Further, trademark lets the original company sue the trademark infringer–but if the victim is the customer, they should be the plaintiff. Not the original company. And further still: trademark law does not even require a showing of likelihood of consumer confusion: there is an antidilution cause of action, based on actions that “dilute” the “value” of someone’s mark, or “tarnish” it. This whole field of law is corrupt and unlibertarian, just as defamation law (reputation rights) is. I explain all this in detail in various articles, — trademark for example is covered in Against Intellectual Property, and in my Reply to Van Dun, all on my site. [“Defamation as a Type of Intellectual Property,” in A Life in Liberty: Liber Amicorum in Honor of Hans-Hermann Hoppe, edited by Jörg Guido Hülsmann & Stephan Kinsella (Houston, Texas: Papinian Press, 2024)]

***

jmorris84· 8 hours ago
“Could one not devise a complicated contract in which everyone agrees to IP protection?” – David Gordon

David, you mean something like The Constitution? Lysander Spooner destroyed the idea that a “complicated contract”, such as the US Constitution, is anything remotely close to a binding contract.
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Jon Dorian· 7 hours ago
It gets deeper than that. Not even the politico-philosophical basis of Social Contracts on which governments are supposed to be based make any sense (see Social Contracts are a Scam). Basically, all governments are invalid from a practical as well as theoretical point of view.
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David Gordon· 7 hours ago
Spooner’s argument is that people haven’t accepted the Constitution as a binding contract. How is this relevant to a contract in which everyone agrees?
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jmorris84· 1 hour ago
David, explain how you plan on having everyone in the world agree to IP protection.
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Bob_Robertson81p· 1 hour ago
I think that’s the point.
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Stephan Kinsella63p· less than 1 minute ago
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According to Rothbard, contracts are not binding promises, as most people today conventionally assume. They are simply transfers of title to owned resources–an exercise of ownership by the owner. That is all. The entire theory of social contract, and other ideas like “imagine a world where people contract to respect IP” is based on a nebulous and incoherent understanding of contract. It is this reason that Rothbard understands slavery contracts are not enforceable–they are not binding promises, and even if they were, breach of such a contractual promised obligation would not call for enslavement–that’s disproportionate; but they are title transfers, but a title transfer is a transfer by an owner of a resource that he has acquired ownership to, to someone else. You do have an ownership right in your body but the person who is the owner is not separable from his body, or from his “will” as Rothbard explains. One of Rothbard’s most revolutionary theories in my view was his theory of contract (he built it on Evers, but Evers apparently got it first from Rothbard — I explain this here, http://libertarianstandard.com/2010/11/19/justice…. Pro-IP libertarians who fling the “contract” notion (and fraud as well) without having a serious clue about the nature of contract and fraud and how they are rooted in and related to a coherent theory of property rights are making bad arguments.

Kinsella:

As a friend wrote me at the time: ” he [Gordon] writes “the argument I had in mind isn’t that because use of ideas is non-rivalrous, there is no problem in the creation of new and valuable ideas. Rather, it is that because use of ideas is non-rivalrous, ideas are “abundant” or “free goods”, available in unlimited supply.”

but first of all, he literally wrote ” ideas are non-rivalrous. From this, it is wrongly concluded that the creation of new and valuable ideas poses no problem: If ideas are not scarce, then they are abundant.” But now he says that that is not the argument he has in mind?

And secondly, what then does he mean by “abundant” and “available in unlimited supply”? If he merely means that they’re nonrivalrous then he wouldnt actually disagree with the argument he is attacking but if he means that there are as many ideas available as we could possibly want, then he’d still be attacking a straw man.

this is very odd.”

Tucker:

To confuse the nonscarcity of ideas with the non-excludability of so-called public goods takes some seriously circuitous thinking. Seems like a crazy diversion tactic also known as sophistry.

Gordon:

I’m grateful to Stephan Kinsella for his attention to my remarks and regret that what I said created puzzlement. I offer the following in clarification.

There are strong arguments against IP rights. A number of these may be found in Butler Shaffer’s monograph, to which the remarks of mine that Stephan quotes were an introduction. Strong arguments, though, do not suffice for some opponents of IP. They think that there is a simple argument that shows that the very idea of an IP right is absurd. This argument I take to be this: (1) Ideas are non-rivalrous, i.e. the use of an idea by someone does not prevent or impede anyone else from using the idea; (2) Rights exist only to settle conflicts about the use of a resource; (3) Therefore, there are no rights to ideas.

The key problem, as I see it, with this argument is that premise (2) is by no means self-evident. Suppose a defender of IP rights claims that the creator of a new idea has, in certain circumstances, a right to prevent others from using it without his permission. I do not accept this view, but it does not seem to be nonsensical, either. To dismiss the claim by appeal to premise (2) begs the question. What exactly is the argument for premise (2)? I am unwilling to accept it as a mere act of conceptual legislation.

In his comment, Jeff Tucker says “To confuse the nonscarcity of ideas with the non-excludability of so-called public goods takes some seriously circuitous thinking. Seems like a crazy diversion tactic also known as sophistry.” In correspondence with me, he emphasized that what impresses him is that ideas are infinitely reproducible: This phenomenon is not to be found among public goods. Though one cannot help but admire his dithyrambic effusions on the topic, their bearing on the IP question remains unclear. Whether I am a sophist is not for me to say, but I do not propose to take lessons in logic from him. Among his many intellectual virtues, I should not be inclined to put precision of thought in the first place.

Kinsella:

“(2) Rights exist only to settle conflicts about the use of a resource;”

It is true that rights DO exist to settle conflicts over the use of scarce resources. So long as you understand that there are and ought to be property rights in scarce resources, then you oppose IP because they amount to a reassignment of rights in already-owned resources. So then the reason for the “only” in this condition is the same as the reason why there are “only” negative rights: if you create positive or welfare rights, they invade negative rights. They come at the expense of negative rights. They are not free. Same with money: if you inflate the money supply you dilute the purchasing power of existing money. Same here: if you have property rights in resources allocated in accordance with Lockean principles and contract, then these property rights must necessarily be undermined and reassigned (redistributed) if IP rights (rights in informaiton, ideas, recipes) are recognized. You cannot have both.

Gordon:

But what is the scope of the initial property rights in resources? I think that you are correct that IP rights do invade the initial resource rights; but an IP defender will say that you are begging the question against him. Again, my point is not that you are mistaken but that the issue cannot be resolved by linguistic legislation on what a right “must” be.

Kinsella:

David, if gold becomes money, it is because the scope of the property rights in that gold are clear enough for it to do so. The same is true with other resources. Principles of original appropriation or homesteading augmented by principles of contractual title transfer or restitution are sufficient to determine ownership of a given contested resource. Competition on the market, evolution, emulation, human civilization, all depend on the spread of information, copying, learning. Learning some possible pattern from observation and then using it to guide your actions to impart some pattern on your own already-owned resources does not invade the borders of others’ already-owned resources, it does not commit a tort, it does not breach a contract. There is no possible excuse to justify limiting such copying activities. To do so would be to limit rights in already-owned resources even though the owner did not agree to it contractually and did not commit any tort. To take his money as compensation/damages, would be to disregard his title to his gold. And so on.

***

David’s wording–he seems to want to leave open the possibility there could be IP in information–that’s what he means about ‘scope’ here I think–
“But what is the scope of the initial property rights in resources? I think that you are correct that IP rights do invade the initial resource rights; but an IP defender will say that you are begging the question against him. ”

— he is saying (I think) that if I homestead material and presumably rearrange it into some other shape (say, I make a printer) then the “scope” of my rights to control the thing includes only what is known-to-date. And that if someone else later comes up with a new use for that type of object (e.g. a novel, a new machine design) then I never homesteaded the “right to use my printer in X Y Z way since the novel did not exist at the time I homesteaded it”. Therefore, if the owner of the pattern of information stops me from using my printer or object for that new purpose, it doesn’t violate my rights because I never owned this right in the first place–the “scope” of my rights in the printer doesn’t extend to printing that novel, the “scope” of my rights in my wood and metal does not include the right to fashion it into a new mousetrap design.
This is reminiscent of an implication of Rothbard’s convoluted contractual copyright argument where he conceives of a mousetrap as “missing” the right to copy it, since the original owner “reserved” that right.

It’s also a variant, perhaps, of the argument I routinely hear: that A can’t complain that B’s copyright is a trespass or theft or interference with A’s use of his own resources, since B’s property rights always limit what A can do with his own property, and therefore, so what if the copyright also limits how A can use his own property–property rights always do this. This is a confusing and insidious and flawed argument I have addressed here: [See “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” in Legal Foundations of a Free Society [LFFS], n.11 and accompanying text; “The Non-Aggression Principle as a Limit on Action, Not on Property Rights” and “IP and Aggression as Limits on Property Rights: How They Differ.”

***

Update: In Gordon’s review of Huebert’s excellent Libertarianism Today,² he writes:

Huebert presents a much more accurate account of Rothbard’s opinions than most [Hmm, wonder who he means here? —SK]. The capsule formulation that most adopt is that Rothbard rejected patents but allowed copyrights. Huebert makes clear that this vastly oversimplifies what Rothbard says.

Rothbard thought that copyright could be justified if it were the product of a contract. For example, if when Smith sells Jones a book, Smith marks it ‘”copyright,” then Jones only receives from Smith the right to make and use that physical book, but not the right to copy it … because a person cannot transfer any more rights than he or she owns, any third parties who later get the book after Jones would be subject to the same restrictions Jones faced … Rothbard justified patents of a sort on similar grounds. If Smith sells Jones a new kind of vacuum cleaner and marks it “patented” (or, as Rothbard would have it “copyrighted”), that tells Jones that he is only receiving the right to the physical object, not the right to make copies of it. (pp. 205–206)

Someone who independently invented the vacuum cleaner would be immune from the reach of the patent.

The standard objection to Rothbard’s position is that such contracts can bind only the people who are parties to them. If you find a copyrighted book that someone has discarded, you are free to copy it as you please; you have made no agreement not to do so. It is because of this point, I think, that Huebert says, “Murray Rothbard began to chip away at the IP idea but still clung to parts of it” (p. 205)”

This is an excellent point (Robert Nozick was among the first to raise it), but is it an objection to Rothbard’s view? In Man, Economy, and State, Rothbard says,

Copyrights … have their basis in prosecution of implicit theft. The plaintiff must prove that the defendant stole the former’s creation by reproducing it and selling it himself in violation of his or someone else’s contract with the original seller. (MES, p. 745, emphasis added)

This suggests that someone who is not party to the contract would be free to copy the creation as he pleased. The point about third parties would then be a consequence of Rothbard’s view, not an objection to it.

Okay so let’s take two cases. A sells his mousetrap to B but does not sell B the “right to copy it” (a bizarre idea introduced by Rothbard). B sells it to C, but since B does not “own” the “right to copy” and can only sell to C “what he owns,” C also does not receive or own the “right to copy” the mousetrap. Thus by Rothbard’s reasoning, C cannot copy it.

Now I want to pause here to emphasize something. The mistaken assumption by Rothbard here is that before you “make a copy” of something, you need some “right to copy.” You do not. In a free society we do not live by permission where everything that is not permitted is presumed to be forbidden. Instead, any action is permissible so long as it does not use someone else’s body or other owned resources without his permission.

Using one’s own resources to rearrange it into whatever shape you want³ does not require permission simply because doing this does not trespass against or invade the borders of anyone else’s property. If I take my own metal and glass and so on, that I already own (by virtue of original appropriation or by contractual transfer from a previous owner) I can do whatever I want with it so long as my actions do not invade or use someone else’s property.

Keep in mind that it is actions that property rights limit, not other property rights, as I explain at length in ch. 11 of my book. Namely: others’ property rights limit my use of their property without their consent. But my rearranging my own owned resources a certain way does not affect the physical integrity of their resources.)⁴ If I see A‘s or B‘s mousetrap and want to make a similar one, with my own hands, my own effort and labor, my own mind, my own raw materials, I am free to do so since doing so does not infringe A’s or B’s rights! So Gordon is wrong here when he writes: “Someone who independently invented the vacuum cleaner would be immune from the reach of the patent.” This implies that someone who does not “independently invent” (whatever that means) the vacuum cleaner does not have the right to do so. Not true! Everyone has the right to do this! (Even B, even if B contractually agreed not to perform this action; since body rights are inalienable and because contracts are not binding promises or obligations but rather title transfers to alienable property,⁵ B is free to copy the mousetrap he purchased from A, but this might trigger the payment of monetary damages to A, depending on their contract (which is why B would be stupid to agree to encumber his use of the mousetrap he purchased, but hey, we are talking about a free country).

To return to Rothbard’s reasoning as applied to the hypothetical: this would be, as Rothbard says, a case where C, the Defendant, in copying it and selling it himself, would be “in violation of his or someone else’s contract with the original seller.” That is why Rothbard thinks C can be bound–because of B‘s contract with A. Because he mistakenly thinks C needs some permission to “make copies,” and if he doens’t “get it” from B—and B doesn’t “have” that “permission” since A carved up the mousetrap’s ownership into bundles: he retained this “right to copy” and sold the “rest” of the mousetrap to B. Thus, C‘s normal freedom to make whatever object he wants with his own material is somehow thwarted… because B didn’t “transfer” this … “right to copy” to C … a “right to copy” that C never needed in the first place since “making a copy”—more particularly, making anything at all with his own resources, or more particularly still, rearranging his own resources into whatever shape he wishes, does not invade the borders of or use A’s owned resources (“property”)⁶ without A‘s consent. (And if someone says: yes, C‘s “making a mousetrap” violated A‘s rights to his own “invention”, this is simply question begging, since the question is, whether there are property rights in ideas or, more precisely whether granting nonconsensual negative servitudes to A over C’s resources is justified!⁷ Something IP proponents seem incapable of grasping, or, more likely, unwilling to admit, so dead set on arguing for IP as they are.)

So what of the case where B owns the mousetrap and someone else, say D,  doesn’t buy it at all or ever touch it, he just sees it. And then he “copies” it, starts making and selling copies. Would Rothbard’s strange view exempt D but not C? Why? Neither one of them needs permission to make a copy of the mousetrap with his own resources. For that matter, even B does not need permission! (But he might owe monetary damages, a penalty, so to speak, as noted above.)

If so, this just means that anyone who wanted to “copy” A‘s mousetrap design would simply observe how A‘s or B‘s mousetrap works, refrain from agreeing to a contract, and then start competing. Right? Does Rothbard’s view imply this? Who knows. I doubt even Rothbard knew.

Of course, by the way, this “contractual copyright” scheme Rothbard has cobbled together this was really the law, it would dissuade people from ever buying the mousetrap in the first place for fear they now have in effect acquired contractual liability, in the event they ever compete with A. (For the same reason that large companies return unopened submissions by outsiders of their ideas; they do not want to be accused of “stealing” or infringing some IP. And for the same reason some artists who are influenced by an earlier song often don’t admit it or deny it, because they do not want to be liable for copyright infringement or having to pay royalties!)

This is obviously absurd. This is why I have argued that you cannot use contracts to emulate something like copyright. For example suppose Amazon makes a deal with its authors to sell their books only to customers who agree to (a) pay for the book and (b) sign a liability clause agreeing to pay millions of dollars to the author/Amazon if they ever sell copies of the book (or similar copies, translations, sequels, things “inspired” by it, and so on) (if the contractual penalty is small, then it would not be sufficient to deter copying). Obviously, imposing this extra cost on customers reduces the price you can charge, and also you lose lots of customers who will just say “fuck that, I’ll pirate it.”

1. Hoppe on Intellectual Property. [↩]
2. See also my own, The Best Introduction to Libertarianism Ever. [↩]
3. As Rothbard recognizes: see Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’, C4SIF (Sep. 29, 2010): “Men find themselves in a certain environment, or situation. It is this situation that the individual decides to change in some way in order to achieve his ends. But man can work only with the numerous elements that he finds in his environment, by rear­ranging them in order to bring about the satisfaction of his ends. With reference to any given act, the environment external to the individual may be divided into two parts: those elements which he believes he cannot control and must leave unchanged, and those which he can alter (or rather, thinks he can alter) to arrive at his ends. The former may be termed the general conditions of the action; the latter, the means used. Thus, the individual actor is faced with an environment that he would like to change in order to attain his ends. To act, he must have technological ideas about how to use some of the elements of the environment as means, as pathways, to arrive at his ends. Every act must therefore involve the employment of means by individual actors to attempt to ar­rive at certain desired ends. In the external environment, the gen­eral conditions cannot be the objects of any human action; only the means can be employed in action.” [↩]
4. “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” LFFS. [↩]
5. See Stephan Kinsella, “The Title-Transfer Theory of Contract,” Papian Press Working Paper #1 (Dec. 20, 2024), and idem, “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023). [↩]
6. See LFFS, ch. 2, App. I, section “Concept and Definition of ‘Property,'” quoting Yiannopoulos: “Accurate analysis should reserve the use of the word property for the designation of rights that persons have with respect to things.” [↩]
7. Intellectual Property Rights as Negative Servitudes. [↩]

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