Introduction to Laissez Faire Books edition of Against Intellectual Property

Laissez Faire Books released today a new edition of my monograph Against Intellectual Property, originally published as an article in 2001 and then issued as a monograph by the Mises Institute in 2008. The new edition contains an Editorial Preface by Jeff Tucker and a new Introduction by me (both appended below). You can buy it here, but it is also available as a free epub or mobi (kindle format) download for members of the Laissez Faire Club, as discussed in Tucker’s Laissez Faire Today column introducing the new publication (Jeff’s column is also appended below) [update: files available here: epub; mobi]. The book is being discussed in a forum on the Laissez Faire Club (which I mentioned previously), at Let’s talk IP and Kinsella; if you’re not a member, join!¹

Jeff’s column (which is far too kind), his Editorial Preface, and my Introduction are appended below.

Scholarship that Changes Everything

Jeffrey Tucker · June 21, 2012

Great scholarship can do the same.

In the 20th century, there was Ludwig von Mises’s “Economic Calculation in the Socialist Commonwealth.” This 1920 essay astonished the whole of Europe with the claim that socialism was impossible — not just inefficient but completely and fundamentally unworkable. No one ever refuted him but this essay was the subject of debate for decades.

In our time, there is an essay of similarly epic importance. It is “Against Intellectual Property” by Stephan Kinsella. It first appeared in 2000 in a low-circulation journal. But those who read it and seriously considered it never quite saw the world the same way again.

This week, this book-length essay is being released into the Laissez Faire Club, with a new introduction by the author and an editorial preface, along with additional commentary.

I was among those who came to be fundamentally changed by this piece.

Initially, I confess, I thought the whole essay was nuts. Maybe not completely wrong but just wrongheaded.

Why was Kinsella taking on the idea of intellectual property given that it is such a settled aspect of law? Isn’t holding a patent or a copyright kind of like holding other forms of property? Maybe the state as such shouldn’t be enforcing it but doesn’t it exist as a natural and normal part of the human community?

It had been decades since anyone really wrote in depth on this topic. There was Fritz Machlup in the 1940s and Murray Rothbard in the 1960s. Neither took on the entire apparatus of intellectual property (IP) as such but only criticized specific applications and supposed benefits that had been frequently cited on behalf of patent, copyright, and trademark. Hayek also had some passing comments that suggested opposition to all IP but the passages lacked passion and conviction.

But whatever: did the whole thing really matter that much? The year 2000 was really before the crisis became clear. There were some controversies growing about file sharing at the time but who could have predicted that government would later use the excuse of intellectual property as a way to smashing the whole of the digital world?

Here we are twelve years later. The government is using its jurisdiction over “intellectual property” to shut down websites, strangle new technologies in their infancy, jail teens, censor books and music, rob consumers, reward monopolists, increase prices of pharmaceuticals and agricultural products, shackle enterprise, and enhance the police power over our right to speak and act.

In fact, IP is the great excuse for the most dangerous form of 21st century tyranny over our lives. And can you believe that it is all done in the name of enforcing property rights? There are echoes of an older confusion that invoke property rights to justify chattel slavery.

This is catastrophic. How did we find ourselves in this mess? Kinsella, as a practicing patent attorney, knew exactly how. He saw the fundamental error not only of the implementation of IP but even whole notion.

His astonishing conclusion: there is no such thing as IP in a free market. IP law is incompatible with freedom itself. It must be completely abolished in the name of freedom, prosperity, and human rights.

I won’t attempt to present his entire argument here. He started at the very beginning. Why are there property rights to begin with? They exist to resolve conflicts over scarce resources. If there were no such conflicts — if I could take a cookie from a jar and thereby cause a new cookie to instantly reappear — we would not have any use for property rights at all.

The important question, therefore, presents itself: what is scarce and what is not? Ideas are not scarce. They can be copied and copied unto infinity. There is no need for property in ideas at all. What about the value of an idea? No one owns value as such; that is determined by acting human mind. What about stealing ideas? You can’t steal what is infinitely copyable.

Note carefully: It is not possible to enforce “intellectual property” without coercing third parties that had nothing to do with economic exchange. In other words, IP is always aggression. If one idea is codified and protected by the state, the rest of humanity is thereby shackled.

If you copyright a song, even if I never heard it before, I’m forcibly prevented from writing the same melody or from performing this sequence of notes without paying you on your terms. If you write some code and patent it, I cannot write the same code even if I had never seen yours.

With IP, the government grants a monopoly to a single producer. This is just like the Middle Ages when the prince would permit only one silk trader to sell within his domain or one brick layer to build all walls. Monopoly is the opposite of competition. IP is monopoly. Therefore it wars against free-market competition, which is to say, that it is contrary to free enterprise.

History bears this out. Real property rights have always existed. Intellectual property is an invention of modern legislation. It began in the England in the 16th century and it spread, slowly at first and then faster. Even then, there was no such thing as universal copyright until just before the turn of the 20th century. Most all great art, literature, and industrial innovation took place without it (Shakespeare, Bach, Beethoven, Goethe, etc.)

Even 30 years ago, it would have been completely unthinkable that seeds and software would be rolled into this racket. A few industries are safe and therefore vibrant and profitable (fashion, for example) but there is a terrible thicket growing around everything else.

More recently, the whole system has gone nuts to the point that obsession over patents consumes vast amounts of industrial energy. It is corrupting the capitalist system. Steve Jobs used to say that “great artists steal.” Now Apple routinely accuses everyone else of theft and gets the government to hobble its competition. And copyright now poses a grave threat to the very spirit of the digital age.

What’s the answer? End the whole crazy system. Restore competition. With it comes innovation and growth, peace and free enterprise, cooperation and sharing.

No, this doesn’t mean that all non-scarce goods must be provided at zero price but only that if a producer wants access restriction, it has to emerge from the market and not be enforced by the state. Regardless, the market tends toward openness not restriction.

You don’t accept the conclusion? That’s fine. It took me some six years to come around to Kinsella’s point of view. And when I finally did, I became gradually amazed at the implications.

I discovered that this essay is not just about IP. It’s about reorienting our understanding of the way society functions. It restores the idea of learning and emulation as market forces worthy of being taken seriously.

One begins to realize that the world we see and touch, the world of scarce goods, represents a tiny fraction of reality. Ideas are the driving force of history and once those are known, they become part of the blessed commons that makes the world work.

Even if you do not eventually agree with him, think of the benefits of working it out in your own mind. This subject causes you to think seriously about fundamentals such as property rights and human freedom. You consider critical questions such as the role of government and its impact on human association and freedom of speech.

You can disagree. Maybe you can refute him. Maybe he is fundamentally wrong. But what is the most important work that we really do here on earth? We think. We turn over ideas in our mind. That’s the most important work we do. The first step to saving civilization from tyranny is thinking.

I know of no essay in the last half century that causes our minds to work so hard. In this sense, Kinsella is our benefactor.

In is my great honor that Kinsella has chosen the Laissez Faire Club as the venue into which to release this new edition of his remarkable essay.

Editorial Preface

Against Intellectual Property
Laissez Faire Books edition (2012)
Jeffrey A. Tucker

This monograph is justifiably considered a modern classic. Stephan Kinsella has caused libertarians worldwide to rethink the very basis of intellectual property.

Mises warned against patents, and so did Rothbard. But Kinsella goes much further. He argues that the very existence of patents — and copyrights and trademarks, too — is contrary to a free market. They all use the state to create artificial scarcities of nonscarce goods and employ coercion in a way that is contrary to property rights and the freedom of contract.

Many who read this book will be unprepared for the rigor of Kinsella’s argument. It takes time to settle in, simply because it seems so shocking at first. But Kinsella makes his case with powerful logic and examples that are overwhelming in their persuasive power.

After all, the relevance of this argument in a digital age can’t be overstated. The state works with monopolistic private producers to inhibit innovation and stop the progress of technology, while using coercion against possible competitors and against consumers. Even US foreign policy is profoundly affected by widespread confusion over what is legitimate and what is merely asserted as property.

What Kinsella is calling for instead of this cartelizing system is nothing more or less than a pure free market, which involves nothing resembling what we call intellectual property today. IP, he argues, is really nothing more than a state-enforced legal convention, not an extension of real ownership.

Few books written in the last decades have caused so much fundamental rethinking. It is essential that libertarians get this issue right and understand the arguments on all sides. Kinsella’s book is masterful in doing just that — making a case against IP that turns out to be more rigorous and thorough than any written on the left, right, or anywhere in between.

Introduction

Against Intellectual Property
Laissez Faire Books edition (2012)
Stephan Kinsella

As it was for many other libertarians, Laissez Faire Books was for me an indispensible source of books and information in the 1980s and ’90s. I loved flipping through the pages of its wonderful catalog, with its informative reviews and suggestions. LFB played a crucial role in preserving and spreading the ideas of liberty and sound economics in the pre-Internet age. So it is of course an honor to have LFB publish a version of my monograph.

Against Intellectual Property originated as a long Journal of Libertarian Studies article in 2001, with the title suggested by Professor Hans-Hermann Hoppe, then the journal’s editor. My initial title had been “The Legitimacy of Intellectual Property,” the name of the earlier paper I had delivered at the Austrian Scholars Conference the preceding year.² It was only eleven years ago, but at the time there was not yet much interest among libertarians in intellectual property (IP). It was thought of as an arcane and insignificant issue, not as one of our most pressing problems. Libertarian attention was focused on taxes, war, the state, the drug war, asset forfeiture, business regulations, civil liberties, and so on. Not on patent and copyright.

I felt the same way. I looked into this issue primarily because I had been, since 1993, a practicing patent attorney, and had always been dissatisfied with Ayn Rand’s arguments in favor of IP.³ Her weird admixture of utilitarian and propertarian arguments raised red flags for me. It included tortuous arguments as to why a 17 year patent term and a 70 year copyright term were just about right, and why it was fair for the first guy to the patent office to get a monopoly that could be used against an independent inventor just one day behind him. I knew Rand’s approach was wrong, but I assumed there must be a better way to justify IP rights. So I read and thought and tried to figure this out. In the end, I concluded that patent and copyright are completely statist and unjustified derogations from property rights and the free market. So I wrote the article to get it out of my system, and then moved on to other fields that interest me more, like rights theory, libertarian legal theory, and the intersection of Austrian economics and law.

But IP’s wallflower status was about to change. Some were starting to sense that the IP issue was becoming more important. The need to shine a light on patent and copyright, heretofore relegated to the shadows and the bailiwick of specialists, was becoming more apparent. An early sign of this among Austro-libertarians, perhaps, was the Mises Institute’s awarding my “Against Intellectual Property” the O.P. Alford III Prize for 2002.

The Internet is the reason for IP emerging from the shadows. The Internet—and digital information and file sharing, social media and related technologies like cell phones, texting, and ubiquitous video cameras—was at this time gaining steam and becoming a huge social force. It was becoming one of the most important tools to fight statism and to preserve and extend human freedom and prosperity. And this is why it has been under attack by the state, in the guise of anti-pornography, anti-gambling, anti-terrorism, and especially anti-piracy/copyright protection efforts.

The Internet became the world’s biggest copying machine, leading to a dramatic increase in the amount of copyright infringement, and thus in the amount of copyright lawsuits and penalties. At the same time, news of shockingly excessive, absurd, and outrageous copyright persecutions were instantly and widely communicated over the Internet—college students and single mothers sued for millions of dollars for sharing a few songs. No longer were these lawsuits hidden in the dark; Internet users were made aware of them.

Patent outrages and abuse also increased along with a growing tech sector and economy and were also communicated at light speed to blogs and RSS feeds. And in the meantime the traditional content-producers, ever-resistant to new technologies that disrupt comfortable business models, kept lobbying Congress to ratchet up patent and copyright scope and terms and penalties and enforcement.⁴ This culminated in the recent attempt to enact anti-piracy legislation such as the Stop Online Piracy Act (SOPA) and Protect IP Act (PIPA), which was—at least for the moment—derailed by a historic Internet uprising.⁵

For these reasons, in the early to mid-2000s, libertarians, left-libertarians, civil libertarians, and the young and Internet dependent, have become more interested in the IP issue and more receptive to anti-IP arguments.⁶ They have become more interested in older criticisms of IP, such as the writings of Benjamin Tucker, Wendy McElroy, Sam Konkin, and Tom Palmer, who saw the problem with patent and copyright clearly in the pre-Internet age.⁷ And more and more people are writing on this important topic and extending previous analyses, such as Sheldon Richman, Mike Masnick, Nina Paley, David Koepsell, Jeff Tucker, and others. In addition, a host of economists and empirical researchers,⁸ most notably Michele Boldrin and David Levine, authors of the groundbreaking Against Intellectual Monopoly, have expressed deep skepticism, on empirical grounds, of the claimed pro-innovation effects of patent and copyright.⁹

Since I wrote in AIP in 2001,¹⁰ I and others have written a good deal more on the topic of so-called intellectual property law, as it has become a greater and more apparent threat to property rights, freedom of expression, and the Internet. I am in the process of writing a new book on IP, tentatively entitled Copy This Book, taking into account more recent arguments, evidence, and examples. In the meantime, readers of AIP may find useful the list of selected writings and talks that supplement the arguments made in AIP, which I have compiled in my C4SIF blogpost “Selected Supplementary Material for Against Intellectual Property” (March 1, 2012), and which will be updated from time to time. For further information see various works linked at www.c4sif.org/resources and material posted going forward at www.c4sif.org.

Stephan Kinsella
Houston
March 2012

1.  Update: AIP is now available online in these formats: epub; mobi; pdf. For the Mises Institute edition (2008): print,PDF, epub; Scribd; HTML; audio book version; large print version. [↩]
2. “Against Intellectual Property” first appeared as part of the symposium Applications of Libertarian Legal Theory, published in the Journal of Libertarian Studies 15, no. 2 (Spring 2001); it was based on “The Legitimacy of Intellectual Property,” a paper presented at the  Law and Economics panel, Austrian Scholars Conference, Ludwig von Mises Institute, Auburn, Alabama (March 25, 2000). [↩]
3. Ayn Rand, “Patents and Copyrights,” in Capitalism: The Unknown Ideal (New York: New American Library, 1967), p. 133. [↩]
4. See Kinsella, “The Mountain of IP Legislation,” C4SIF Blog (Nov. 24, 2010), Mike Masnick, “How Much Is Enough? We’ve Passed 15 ‘Anti-Piracy’ Laws In The Last 30 Years,” Techdirt (Feb. 15, 2012), and Timothy B. Lee, “Copyright enforcement and the Internet: we just haven’t tried hard enough?”, ars technica (Feb. 16, 2012). [↩]
5. See, e.g., Kinsella, “SOPA is the Symptom, Copyright is the Disease: The SOPA wakeup call to ABOLISH COPYRIGHT,” The Libertarian Standard (Jan. 24, 2012). For more discussion of SOPA and PIPA, see C4SIF.org and Techdirt. See also Kinsella, “Where does IP Rank Among the Worst State Laws?”, C4SIF Blog (Jan. 20, 2012), “Masnick on the Horrible PROTECT IP Act: The Coming IPolice State,” C4SIF Blog (June 2, 2012), “Copyright and the End of Internet Freedom,” C4SIF Blog (May 10, 2011), “Patent vs. Copyright: Which is Worse?”, C4SIF Blog (Nov. 5, 2011). [↩]
6. See Kinsella, “The Death Throes of Pro-IP Libertarianism,” Mises Daily (July 28, 2010). On the young and the Internet, see also Kinsella, “‘We, The Web Kids’: Manifesto For An Anti-ACTA Generation,” C4SIF Blog (March 3, 2012). [↩]
7. See Kinsella, “The Origins of Libertarian IP Abolitionism,” Mises Economics Blog (April 1, 2011) and “The Four Historical Phases of IP Abolitionism,” C4SIF Blog (April 13, 2011). [↩]
8. See various work linked at www.c4sif.org/resources. [↩]
9. See various work linked at www.c4sif.org/resources, and Kinsella, “Yet Another Study Finds Patents Do Not Encourage Innovation,” Mises Economics Blog (July 2, 2009); also “Legal Scholars: Thumbs Down on Patent and Copyright” (Oct. 23, 2012); “The Overwhelming Empirical Case Against Patent and Copyright” (Oct. 23, 2012). [↩]
10. In AIP  I sometimes used “tangible” to indicate scarce resources that can be subject to property rights. Hardy Bouillon argues that it might be more precise to focus on the difference between material vs. non-material goods rather than tangible vs. non-tangible goods, as the touchstone of things subject to property rights. As Bouillon writes:

    Though some speak exclusively of tangible and non-tangible goods, I prefer to talk of material and immaterial goods. … The point about material goods is not that they are tangible, for some are not. For instance, atoms and many other small material units are not tangible; they are identifiable only indirectly, though this does not prevent us from calling them material.

    Hardy Bouillon, “A Note on Intellectual Property and Externalities,” Mises Daily (Oct. 27, 2009), previously published in Property, Freedom and Society: Essays in Honor of Hans-Hermann Hoppe (Jörg Guido Hülsmann & Stephan Kinsella, eds., Mises Institute, 2009). [↩]