Hoppe on Intellectual Property

Included as ch. 23 of Stephan Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023).

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On occasion a pro-IP libertarian who is also an admirer of Hans-Hermann Hoppe, the world’s leading libertarian intellectual, will express incredulity and dismay at the idea that Hoppe would oppose IP. It has been obvious to me for ten years that Hoppe is anti-IP. He welcomed the publication of my “Against Intellectual Property” article in the Journal of Libertarian Studies in 2001 when he was editor (in fact he came up with the title); and its reasoning and conclusions are based on and perfectly consistent with Hoppe’s anarcho-Austrian-Rothbardian ideas on property, rights, ethics, and economics. But some Hoppe admirers are loath to admit this (see the comments of Dave Narby here, and Stranger on this thread,¹ for example).

Just to set the record straight, since this issue keeps coming up over and over:

In this comment, one Stephen observes:

Here’s a video of Hoppe where he clearly attacks IP.

[1:13:20]

[Audience member]

I’ve heard people defending intellectual property rights from the same rules as you use. Could you touch briefly on that?

[Hoppe]

Very briefly. I should make you aware of a great article by a friend of mine, Stephan Kinsella, who is actually a patent lawyer, but doesn’t believe in patents. That article has appeared a few years ago in the Journal of Libertarian Studies, which is available on the net @ www.mises.org, and if you just type in Kinsella, you get his five or six articles that he has are published for the journal, and from the title you would clearly recognize that it deals with intellectual property rights. But let me say this much at this point: recall, I said property rights can only be acquired in things that are scarce, and only because they are scarce, are conflicts over their use possible. Now ideas, once they have been thought, are no longer scarce. If I think the same idea that you think, I am not taking anything away from you. You can still think exactly the same thing as before. Nothing is diminished on your part. Thoughts are, once they have been thought, free goods and conflicts over them are impossible. Again, imagine what the consequences would be if we would not accept this view. Then we would owe royalties to the widow of Aristotle until the end of our lives. Not even the widow has survived up to this point either, but Aristotle’s little Aristotles run around in Greece. They might still collect money whenever we say A and non-A cannot exist at the same time. And I think I would consider that to be utterly unfair because I can think this idea myself also. I would not have needed Aristotle to come up with this idea, but nonetheless, he was the first one to write it down. So this is the same thing, you are all free-riding on my ideas, I could just collect royalties now from all of you, plus I’ve used some words that you might not have heard before, I might have expressed some thoughts that you will repeat, that you found funny or not so funny, and you will now be eternally indebted to me. I should throw you all into debtors prison unless you just deliver your weekly, or monthly, or annual royalties to me. So keep that, please, in mind.

[1:17:00]

See also the conclusion to my article Ideas Are Free: The Case Against Intellectual Property:²

Professor Hoppe realized this as far back as 1988. At a panel discussion on ethics with Hoppe, Rothbard, David Gordon, and Leland Yeager, there was the following exchange, and I’ll conclude with it:

AUDIENCE QUESTION: I have a question for Professor Hoppe. Does the idea of personal sovereignty extend to knowledge? Am I sovereign over my thoughts, ideas, and theories? …

HOPPE: … in order to have a thought you must have property rights over your body. That doesn’t imply that you own your thoughts. The thoughts can be used by anybody who is capable of understanding them.[18]

See also these excerpts from Hoppe Interview on Anarchy and Intellectual Property:

Daily Bell: Where do you stand on copyright? Do you believe that intellectual property doesn’t exist as Kinsella has proposed?

Dr. Hans-Hermann Hoppe: I agree with my friend Kinsella, that the idea of intellectual property rights is not just wrong and confused but dangerous. And I have already touched upon why this is so. Ideas – recipes, formulas, statements, arguments, algorithms, theorems, melodies, patterns, rhythms, images, etc. – are certainly goods (insofar as they are good, not bad, recipes, etc.), but they are not scarce goods. Once thought and expressed, they are free, inexhaustible goods. I whistle a melody or write down a poem, you hear the melody or read the poem and reproduce or copy it. In doing so you have not taken anything away from me. I can whistle and write as before. In fact, the entire world can copy me and yet nothing is taken from me. (If I didn’t want anyone to copy my ideas I only have to keep them to myself and never express them.)

Now imagine I had been granted a property right in my melody or poem such that I could prohibit you from copying it or demanding a royalty from you if you do. First: Doesn’t that imply, absurdly, that I, in turn, must pay royalties to the person (or his heirs) who invented whistling and writing, and further on to those, who invented sound-making and language, and so on? Second: In preventing you from or making you pay for whistling my melody or reciting my poem, I am actually made a (partial) owner of you: of your physical body, your vocal chords, your paper, your pencil, etc. because you did not use anything but your own property when you copied me. If you can no longer copy me, then, this means that I, the intellectual property owner, have expropriated you and your “real” property. Which shows: intellectual property rights and real property rights are incompatible, and the promotion of intellectual property must be seen as a most dangerous attack on the idea of “real” property (in scarce goods).

Daily Bell: We have suggested that if people want to enforce generational copyright that they do so on their own, taking on the expense and attempting through various means to confront copyright violators with their own resources. This would put the onus of enforcement on the pocket book of the individual. Is this a viable solution – to let the market itself decide these issues?

Dr. Hans-Hermann Hoppe: That would go a long way in the right direction. Better still: more and more courts in more and more countries, especially countries outside the orbit of the US dominated Western government cartel, would make it clear that they don’t hear cases of copyright and patent violations any longer and regard such complaints as a ruse of big Western government-connected firms, such as pharmaceutical companies, for instance, to enrich themselves at the expense of other people.

Note also Hoppe’s comments here:

“Furthermore, the tendency [of the process of civilization, i.e., the lowering of time-preferences] will actually be accelerated insofar as A and B…engage in voluntary trade or cooperation and even without any such exchange insofar as they merely observe each other’s activities and copy each other’s knowledge.” —Hoppe, Democracy: God that Failed, p. 10; also in Time Preference, Government, and the Process of De-Civilization – From Monarchy to Democracy, Journal des Economistes et des Etudes Humaines, Vol.5, 2, 1994; also published in John Denson, ed., The Costs of War (New Brunswick: Transaction Publishers, 1997)

See also Hoppe’s comments here: PFP145 | Hoppe, Dürr, Kinsella, van Dun, Daniels, Discussion, Q&A (PFS 2015):

A lightly edited transcript of the exchange:

QUESTIONER: Okay. My question is for Stephan Kinsella. It’s a question, not an argument.

4:58

What is the case for private photos and pictures shared over the internet on Facebook and someone else is using it?

5:08

What is the argumental basis on that from the IP perspective?

>> STEPHAN KINSELLA: What’s the justification for using someone else’s?

5:15

> QUESTIONER: Using, or do they need our permission, without permission? What is the case for…

>> STEPHAN KINSELLA: Do you mean under current law or under libertarian system?

5:23

> QUESTIONER: Under – both.

>> STEPHAN KINSELLA: Well, under current law, copyrights – photographs are owned by the photographer, and if you put it online you still own the copyright, but you’re giving a license for people to use it for limited purposes like doing it on their browser.

5:39

If you use it beyond that, unless there’s a creative common license attached to it, you could be sued.

5:45

And the perverse aspect of copyright – let’s suppose you’re on vacation and you hand your iPhone to a stranger and he takes a picture of your family.

5:53

He owns the copyright but you don’t know who he is, so you have this great picture, and you may be infringing his copyright when you put it on your Apple TV.

6:02

And there’s other perverse aspects of copyright. There are cases where there’s – someone takes a photograph.

6:08

They have a copyright in the photograph, and it becomes a best-selling print or something like that.

6:14

And someone else will go to the same location and recreate the photo by taking their own photograph, and they can be sued by the owner of the first copyright for taking a photograph in that location.

6:26

Under libertarian law, there would be no property rights whatsoever in information at all.

6:32

Information is not an ownable thing. Information is the impatterning of an owned thing, a physical material resource.

6:38

Information is never free-floating. It’s always the impatterning of a substrate: your brain, electromagnetic waves, a CD-ROM, a USB drive, a hard drive on a computer.

6:49

And those things are already owned by someone according to the principles Professor Hoppe referred to earlier. The owner of the thing—I own this physical object. It’s structured in a certain way, which is the information.

7:00

I don’t own the information and the phone. I own the phone and the feature – it has certain features.

7:06

This phone has a weight. It has an age. It doesn’t mean I own the age of the phone. If I did own the age of the phone, I would own lots of other phones in the world that were made on the same day you see.

7:15

So the problem with owning an aspect of a thing that you own is it’s a universal that applies to any number of instances in the world.

7:23

And to own that universal feature of the thing would instantly give you ownership claims over other material resources in the world that other people have claims to.

7:32

This is the very problem with IP. So if you put a photograph online in a free society, then you have to take the risk that other people might look at it and use it.

7:44

>> HANS-HERMANN HOPPE: On intellectual property rights, a funny movement – you reported about it on your website —where people, some alleged Austrians from Vienna, Mrs. What’s-Her-Name from the Hayek Institute, Barbara Kolm.

8:10

She wants to defend physical and intellectual property rights at the same time.

8:16

It never occurred to her that that is an absolute impossibility. To give you an example, I whistle a song.

8:26

You hear the song, and you copy it. You whistle the same melody.

8:34

If intellectual property rights exist, of course I would be able to then sue you for having whistled the same song without having received my permission.

8:50

But that means that I thereby acquire property rights over your own body, that I am then an owner of your vocal chords and whatever it is.

9:07

And that shows quite clearly that either physical property rights exist or intellectual property rights exist, but both of these things cannot exist simultaneously. So it’s simply a contradiction.

9:28

>> STEPHAN KINSELLA: And an actual illustration of that is the “Happy Birthday” song, which is in litigation right now.

9:35

This is literally true. Waiters in restaurants in the US sing a different song because they may be sued for singing the one that’s in the movies, which movie studios have to pay licensing fees for.

9:48

It’s another way IP would help movie studios. Their costs would go down. I want to read something Hans said in 1988 on a panel with Rothbard and David Gordon and Leland Yeager.

10:02

And this is ’88 at the Mises Institute I assume, and an audience member said “I have a question for Professor Hoppe. Does the idea of personal sovereignty extend to knowledge? Am I sovereign over my own thoughts, ideas, and theories?”

10:14

And Hans said, “in order to have a thought, you must have property rights over your body. That doesn’t imply you own your thoughts.

10:21

The thoughts that can be used by – the thoughts can by used by anybody who is capable of understanding them.” So Hans understood this with pure praxeology 30 – almost 30 years ago.

10:38

> HANS-HERMANN HOPPE: Then I was still young.

Finally, see also Hoppe and Intellectual Property: On Standing on the Shoulders of Giants (July 31, 2006), and The Critique of Copyright in Hans-Hermann Hoppe’s Argumentation Ethics.

And finally: this is a bit amusing. As noted in this comment on a Mises.oeg thread debating IP and whether Hoppe is anti-IP, the commenter writes: ”

Hoppe with Kealey (who challenges IP as a non-Rothbardian) and Kinsella PFS 2010

Kinsella @ 18:40  (Note, Hoppe does not judo chop him for saying IP is not libertarian, despite Hoppe being well within striking distance)

Again at 36:20

1. A forum discussing Onar Åm, “The Moral Basis for Intellectual Property Rights“; e.g. my comments here; Stranger’s comments, e.g. this one. [↩]
2. Also in You Can’t Own Ideas [↩]