Related

• KOL234 | Vin Armani Show: Live from London: Kinsella vs. Craig Wright Debate on Intellectual Property
• KOL267 | Sal the Agorist Interview: Bitcoin, Copyright, Craig Wright
• Tufty the Cat: Faketoshi Patent Oppositions – The Story So Far
• Craig Wright: You Don’t Own Your Digital Stuff. NFTs Could Actually Fix That — Without Intellectual Property
• Optimal Patent and Copyright Term Length
• Tabarrok and Murphy: Why Are US Drug Prices So High?
• Tabarrok: Patent Policy on the Back of a Napkin
• The Overwhelming Empirical Case Against Patent and Copyright
• “The Problem with Intellectual Property”
•  Against Intellectual Property
• “Law and Intellectual Property in a Stateless Society,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) (LFFS)
• Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, in LFFS
• Reason’s Tim Lee on Two Decades of Attempts to Enforce Copyright

I’ve been squabbling in last few days with Craig Wright on Twitter. I append some below. Now he has some out with some babbling faux-econometric “proof” of optimal patent terms or something: Craig Wright, “The Price of Ideas,” Craig’s Substack (June 20, 2026). It’s just a big pretentious word salad. He doesn’t not seem to realize some of us are Austrians and reject this entire approach—the same way Rothbard and Hoppe reject the standard utilitarian model attempting to justify antitrust law.¹ I specifically address, among many problems with standard defenses of IP, the utilitarian defense; this is just one of many problems with the case for IP. See, e.g., Kinsella, “The Problem with Intellectual Property,” Part III.B; Against Intellectual Property, “Utilitarian Defenses of IP”; Kinsella, “Law and Intellectual Property in a Stateless Society,” Part III.A, in LFFS. Wright does not deal with this at all. He just marches on as if there is nothing wrong methodologically or ethically with utilitarian arguments for law and rights. [continue reading…]

1. Murray N. Rothbard, Man, Economy, and State, with Power and Market, Scholar’s ed., 2nd ed. (Auburn, Ala.: Mises Institute, 2009), ch. 10: “Monopoly and Competition”; Hans-Hermann Hoppe, A Theory of Socialism and Capitalism (Laissez Faire Books, 2013), ch. 10, “Capitalist Production and the Problem of Monopoly.” [↩]

From Duke University Libraries blog.

Related

• Utah legislative summary materials
• 17 U.S.C. § 105, “Copyright protection under this title is not available for any work of the United States Government.”
• Grok on the public edicts doctrine
• EFF: Supreme Court Affirms That No One Owns the Law
• Georgia v. Public.Resource.Org Inc.: “Georgia tried to claim copyright in the annotations (explanatory summaries, case notes, etc.) in its official annotated code. The Court ruled 5-4 that these annotations—created under legislative authority and published as the official code—were not copyrightable. Chief Justice Roberts wrote that the doctrine applies to works legislators and judges create in their official capacities, including explanatory materials.”
• Justia: Banks v. Manchester (1888): Judges cannot copyright their opinions or related judicial work. Wheaton v. Peters (1834): No copyright in Supreme Court opinions.
• The state copyright conundrum What’s your state government’s rule on copyright?

Who owns the law?

Just came across this old post from bionic mosquito (whose name is apparently Jonathan Goodwin, according to Danny Ajamian;¹ I am not really sure) about IP and my then-upcoming debate with Werewolf Wenzel. Bionic is somewhat confused about all this, but at least doens’t seem to favor IP or pretend he is an expert on it. But for example, he writes:

I have never found the debate significantly important to me: can one own an idea (in its various manifestations)?  While it is to me personally a rather peripheral issue given the other, more clear-cut, governmentally-enabled property rights violations we face daily, it is an important consideration for some in the libertarian community.

It may not be important “to him” but it is far from a marginal or trivial issue. It’s up there with war, taxation, the fed, and so on. It’s very damaging and insidious.²

He also wonders if IP could be enforced privately, by contract, in a stateless society. It cannot as I have explained because IP is not a contractual, in personam, right; it is an in rem property right. It has nothing to do with contract (see IP as Contract), as Mosquito suggests in the comments, e.g. with this statement: [continue reading…]

1. Daniel Ajamian, “The Cost of Enlightenment,” Quarterly Journal of Austrian Economics 22, no. 2 (Summer 2019). [↩]
2. “Patent vs. Copyright: Which is Worse?”; “Where does IP Rank Among the Worst State Laws?” [↩]

Wojciech Gamrot, “Labor as the Basis for Intellectual Property Rights: Against Cwik,” Philosophy of Management (2026; pdf).

Abstract:

While the dominant justification for intellectual property rights seems to remain consequentialist, various deontological theories are also proposed. They often appeal, directly or indirectly, to intellectual labor as a source of rights or as a circumstance that is relevant to justifying intellectual property on moral grounds. Recently, another such theory has been proposed by Bryan Cwik, gaining substantial recognition. It holds that, in the absence of intellectual property regulation, innovators and artists are at a disadvantage as compared to manual laborers. This is because they cannot control how the fruits of their intellectual labor are used. Patents, copyrights and other similar regimes are portrayed as necessary to secure their control over the exercise of their productive capacities. In the present paper Cwik’s theory is evaluated and exposed as indeterminate. Its metaphysical presuppositions are also criticized. When they are replaced by a more coherent ontology, a reinterpretation of control relations follows. Cwik’s objective of maximizing individuals’ control over their own productive capacities is achieved by intellectual property abolition, rather than enforcement. His theory fails to support intellectual monopoly.

To be updated later: for now see:

Bryan Cwik, “Property Rights in Non‐rival Goods” (2, 3, 4). It’s another flawed argument, but at least he recognizes that ideas are not scarce (in the sense of rivalrous) and thus, to justify IP, one must come up with some way to justify property rights in non-rival goods. No surprise, he elsewhere makes other bad arguments for IP, e.g. “Labor as the Basis for Intellectual Property Rights” (2; 3).

(See also: “Good Ideas is Pretty Scarce”; KOL491 | Trying to Persuade Paul Cwik of the Case Against IP )

***

other IP theories

“The Problem with Intellectual Property,”

Paul Cwik: bad/evolving: See “Is There Room for Intellectual Property Rights in Austrian Economics?“, Mises.org (3/04/2008); also our recent discussion, KOL491, [tbd]

As I note in “Good Ideas is Pretty Scarce”,  Yet others are a mite more honest. Case in point: “Property Rights in Non‐rival Goods,” by Bryan Cwik. It’s another flawed argument, but at least he recognizes that ideas are not scarce (in the sense of rivalrous) and thus, to justify IP, one must come up with some way to justify property rights in non-rival goods. No surprise, he elsewhere makes other bad arguments for IP, e.g. “Labor as the Basis for Intellectual Property Rights“; Gamrot, Labor as the Basis for Intellectual Property Rights: Against Cwik. (Interestingly, another Cwik, Paul Cwik, also makes bad arguments in favor of IP. Unlike the other Cwik, Paul should know better, as he is an Austrian and libertarian. See Classical Liberals, Libertarians, Anarchists and Others on Intellectual Property.)

[Cross-posted at PFS Blog]

Congrats, pro-IP libertarians. This is the kind of fascist bullshit you support. https://t.co/Om2WrqIbRI

— Stephan Kinsella (@NSKinsella) June 11, 2026

[continue reading…]

Related

• (All by Kinsella), “Patents, Pharma, Government: The Unholy Alliance,” Brownstone Institute (April 1, 2024)
• The Overwhelming Empirical Case Against Patent and Copyright
• Tabarrok and Murphy: Why Are US Drug Prices So High?
• Intellectual Property Rights as Negative Servitudes
• “Intellectual Property Advocates Hate Competition”
• Are Patents and Copyrights “Monopolies”?
• IP Rights as Monopolistic Grants to Overcome the Public Goods Problem
• “Decouple Trade and IP Protection,” Brownstone Institute (Dec. 4, 2024)
• The China Stealing IP Myth
• “Free-trade” pacts export U.S. copyright controls
• Patents and Pharmaceuticals
• “FDA and Patent Reform: A Modest Proposal” (May 5, 2023)
  • “Are Patents Needed to Make Up for FDA Kneecapping?” (July 2, 2011)
• KOL469 | Haman Nature Hn 149: Tabarrok on Patents, Price Controls, and Drug Reimportation
• Optimal Patent and Copyright Term Length
• Tabarrok: Patent Policy on the Back of a Napkin
• Classical Liberals, Libertarians, Anarchists and Others on Intellectual Property
• Pharmaceutical Shills and Think Tank Corruption: Sally Pipes’s The World’s Medicine Chest: How America Achieved Pharmaceutical Supremacy―and How to Keep It
• Hello! You’ve Been Referred Here Because You’re Wrong About Intellectual Property: “IP can’t be socialistic, since the Soviet Union didn’t recognize IP law.”

See Lawrence Wilson and Sylvia Xu, “The Loophole Drug Makers Use to Keep Prices High: How pharmaceutical companies use the patent system to delay generic drugs from coming to market,” Epoch Times – In Depth – Premium Reports (May 24, 2026). Decent article. Of course, it hypocritically whines about patent law “abuse” while using the equally evil¹ copyright law and paywalls to block people from reading this information, so I post only a snippet and a Grok summary below.²

The article is wrong to refer to this as a “loophole.” This is just sleazy clickbait since the word does not even appear in the article. Using patent law as it is written is not a loophole nor is it “abuse.” The thing, the thing, the thing itself is the abuse! (h/t Burke) No; this is just the normal response of market actors to a patent system. If you give free food to people (“you on da the welfare,” as Eddie Murphy would say), they will take it, like hogs to a trough. If you give market actors the ability to use state force to hobble competitors by acquiring patents, they’ll do it. Welfare recipient are not the problem; patent applicants are not the the problem. The problem is the state stealing from taxpayers and granting patents! —and the confused citizens and intellectuals who support this robbery (Yes, Dorothy, patents are theft;³ I would say, “h/t Proudhon” but but while he said property is theft⁴ it is not clear that he opposed IP, any more than other stupid socialists oppose IP.)⁵ So the subtitle is correct: “How pharmaceutical companies use the patent system to delay generic drugs from coming to market.” Why wouldn’t they? What do you expect? It’s not a loophole. SOYLENT GREEN IS PEOPLE! [continue reading…]

1. “Patent vs. Copyright: Which is Worse?” [↩]
2. We are all copyright criminals: John Tehranian’s “Infringement Nation”  [↩]
3. Intellectual Property Rights as Negative Servitudes. [↩]
4. Classical Liberals, Libertarians, Anarchists and Others on Intellectual Property. [↩]
5. Hello! You’ve Been Referred Here Because You’re Wrong About Intellectual Property: “IP can’t be socialistic, since the Soviet Union didn’t recognize IP law.” [↩]

[From my Webnote series]

Related

• The Overwhelming Empirical Case Against Patent and Copyright
• “Legal Scholars: Thumbs Down on Patent and Copyright”
• Intellectual Property’s Great Fallacy;
• Mark Lemley: The Very Basis Of Our Patent System… Is A Myth
• IP Law and “Market Failure”
• Richard Epstein’s Takings Political Theory versus Epstein’s Intellectual Property Views
• Richard Epstein’s Takings Theory of the State
• Email to Richard Epstein: Tension Between Takings Framework and IP Views
• “Intellectual Property Advocates Hate Competition”
• The Universal Principles of Liberty; The Fundamental Principles of Justice
• On Property Rights in Superabundant Bananas and Property Rights as Normative Support for Possession
• Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Rights; Hayek’s “Fund of Experience”; the Distinction Between Scarce Means and Knowledge as Guides to Action
• The Problem with Intellectual Property

From various posts at C4SIF.org and StephanKinsella.com:

The Problem with Intellectual Property:****

I tire of people repeating over and over again that we need IP because without it there would be no innovation, etc. I have pointed out to them over and over that not only is this false,¹ but that it misconceives the purpose of law itself. It imagines that there are market failures and imperfections,² such as “holdout problems” and “free riders,”³ and “too much competition,⁴ and that the state is therefore justified in intervening–in engaging in what are in effect takings—in attempt to grow the size of the pie. Of course this never works because (a) there are no market failures, (b) even if there are, they are dwarfed by political failure, i.e. the solution is worse than the problem. But it also assumes that if the state could intervene and make things “better” in some vague sense, that this is justified. But this misconceives the purpose of law: it is is to do justice—by recognizing, identifying, defining, respecting, and protecting property rights.⁵ IP law violates property rights;⁶ it is the opposite of justice. It is a perversion of law and justice. [continue reading…]

1. The Overwhelming Empirical Case Against Patent and Copyright; “Legal Scholars: Thumbs Down on Patent and Copyright”;  Intellectual Property’s Great Fallacy; Mark Lemley: The Very Basis Of Our Patent System… Is A Myth. [↩]
2. IP Law and “Market Failure”. [↩]
3. Richard Epstein’s Takings Political Theory versus Epstein’s Intellectual Property Views; Richard Epstein’s Takings Theory of the State; Email to Richard Epstein: Tension Between Takings Framework and IP Views.  [↩]
4. “Intellectual Property Advocates Hate Competition”. [↩]
5. As Justinian himself said, “Justice is the constant and perpetual wish to render every one his due.… The maxims of law are these: to live honestly, to hurt no one, to give every one his due.” Thomas, ed. (1975, Book 1, Title 1). See also The Universal Principles of Liberty; The Fundamental Principles of Justice; The Fundamental Principles of Justice. [↩]
6.  Intellectual Property Rights as Negative Servitudes. [↩]

Related

Kinsella, “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)

• • The Patent, Copyright, Trademark, and Trade Secret Horror Files
  • “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)
  • KOL485 | The Brownstone Show, with Jeffrey Tucker: Defamation and Intellectual Property
  • The Velvet Elvis and Other Trademark Absurdities
  • Taylor Swift Files Trademark to Protect Her Voice and Likeness Against AI Misuse
  • Trademark Ain’t So Hot Either…
  • Trademark and Fraud; Discussion with George Reisman
  • Copyright is Unconstitutional (trademark too)
    • The Velvet Elvis and Other Trademark Absurdities
    • KOL483 | The Economics and Ethics of Intellectual Property, Loyola University—New Orleans
  • Classificationism, Legislation, Copyright
  • Federal Judges Aren’t Real Judges
  • Another Problem with Legislation: James Carter v. the Field Codes
  • Re the “tension” between free speech and trademark, like other tensions such as the tension between patent and competition, between patent and copyright law and monopolies and antitrust law:
    • Antitrust vs. Trademark Law
    • Price Controls, Antitrust, and Patents (July 2011)
    • Antitrust vs. Trademark Law (June 2011)
    • The Schizo Feds: Patent Monopolies and the FTC (Aug. 2006)
    • The Schizophrenic State (Jan. 2006)
    • IP vs. Antitrust (Sept. 2005)
    • The Microsoft-Apple Gesture Oligopoly
    • Controls breed controls, Monopolies breed monopolies
    • When Antitrust and Patents Collide (Rambus v. FTC)

Trademarks and Free Speech: Conflicts and Resolutions: CIPIL Evening Seminar, Cambridge lecture by Lisa P. Ramsey, author of Trademarks and Free Speech: Conflicts and Resolutions (Cambridge, 2026). [continue reading…]

[From my Webnote series]

Related

• Classificationism, Legislation, Copyright
• Federal Judges Aren’t Real Judges
• Another Problem with Legislation: James Carter v. the Field Codes
• The Non-Aggression Principle as a Limit on Action, Not on Property Rights; Individuals are Responsible for Actions, not “for Their Property”; Property rights are not obligations or responsibilities
• On Conflictability and Conflictable Resources
• The “Ontology” Mistake of Libertarian Creationists
• Hardy Bouillon, A Note on Intellectual Property and Externalities
• Stephan Kinsella, Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, in Legal Foundations of a Free Society [LFFS] (Houston, Texas: Papinian Press, 2023), n30.
• Reply to Van Dun: Non-Aggression and Title Transfer, in LFFS
• Sarah Isgur and David French, “SCOTUS Clears Way for Alabama to Use Congressional Map,” Advisory Opinions (May 14, 2026), at 38:21
• Vericool World LLC v. Igloo Products Corp., No. 24-192 (9th Cir. May 6, 2026) (GovInfo; pdf)
• John Rearick, “Other Barks & Bites for Friday, May 8: … Split Ninth Circuit Panel Nixes False Representation Claims,” IPWatchdog.com (May 8, 2026)
• Rebecca Tushnet, “Dastar bars false advertising claim against “first of its kind” ads,” Rebecca Tushnet’s Blog (Dec. 15, 2023)
• Jeff Greenbaum, “Who Made the “First” Biodegradable Cooler?,” Advertising Law Blog, Frankfurt Kurnit Klein & Selz PC (May 11, 2026)

Interesting recent case discussed by Sarah Isgur and David French in Advisory Opinions:¹ Vericool World LLC v. Igloo Products Corp. (9th Cir. May 6, 2026).² [continue reading…]

1. David French, “SCOTUS Clears Way for Alabama to Use Congressional Map,” Advisory Opinions (May 14, 2026), at 38:21. [↩]
2. Vericool World LLC v. Igloo Products Corp., No. 24-192 (9th Cir. May 6, 2026) (GovInfo; pdf), a Ninth Circuit opinion affirming summary judgment and holding that “first to market” claims are not actionable under the Lanham Act [trademark law] as they concern the origin of an idea rather than observable product characteristics. For commentary, see John Rearick, “Other Barks & Bites for Friday, May 8: … Split Ninth Circuit Panel Nixes False Representation Claims,” IPWatchdog.com (May 8, 2026) (solid summary of the split decision, majority’s tangible-vs.-intangible line, Bumatay dissent on plain meaning, and patent-law overlap concerns); Rebecca Tushnet, “Dastar bars false advertising claim against “first of its kind” ads,” Rebecca Tushnet’s Blog (Dec. 15, 2023) (analysis of the district court ruling framing it as a Dastar-based bar on false-advertising claims for “first of its kind” ads); Jeff Greenbaum, “Who Made the “First” Biodegradable Cooler?,” Advertising Law Blog, Frankfurt Kurnit Klein & Selz PC (May 11, 2026) (practical analysis of the Ninth Circuit holding, Lanham Act limits, and implications for advertisers making priority/originality claims). [↩]

Related

• Legal Scholars: Thumbs Down on Patent and Copyright
• Texas A&M (formerly Tulane) law professor Glynn Lunney
• Glynn S. Lunney Jr, “Trademark Monopolies,” Emory L. J. 48 (1999): 367–487
• Glynn S. Lunney, Jr., “A Natural Right to Copy,” Boston University Law Review, Forthcoming;  Texas A&M University School of Law Legal Studies Research Paper No. 19-42 25 (Posted: 20 Aug 2019)
• Glynn Lunney, Copyright’s Excess, TEDxTAMU
• Copyright: The New Mercantilism

Grok summary of Lunney on IP

Summary of the two attached papers by Glynn S. Lunney Jr.

1. “Trademark Monopolies” (Emory Law Journal, 1999)

This is a major scholarly critique of the expansion of U.S. trademark law in the second half of the 20th century. Lunney traces trademark doctrine from its early 18th–mid-20th century roots, where courts and commentators (including Edward Chamberlin’s theory of monopolistic competition) treated trademarks as a form of monopoly that required careful limits to avoid harming competition. Early trademark protection was justified primarily on deception-based grounds: preventing consumer confusion about the source of goods so that buyers could match their preferences to products accurately. This served an efficiency function (better information, quality incentives) while still allowing “workable” or “fair” competition.

Lunney argues that since the mid-1950s (especially after the Lanham Act), trademark law has undergone a profound shift toward property-based protection. Courts and commentators increasingly treat the trademark itself as a valuable asset/product worth protecting independent of any source-identifying function. This has produced:

• Expansion of protectable subject matter (e.g., more trade dress, slogans, colors, product shapes).
• Broader scope of rights (dilution, anti-confusion rules reaching “possible” rather than “probable” confusion, protection against non-competing uses).

The result, Lunney contends, is the creation of “trademark monopolies” in the pejorative sense: market power and deadweight loss without the offsetting consumer-information benefits of traditional deception-based trademarks. He rejects the common analogy to patent/copyright (which at least purport to incentivize new creation), noting that trademark doctrine does not tie protection to any proven need for extra incentives and risks locking up product differentiation in ways that harm competition. The paper calls for restoring the competitive balance by limiting protection to cases of material deception.

2. “A Natural Right to Copy” (Texas A&M Law Scholarship / SSRN, 2019)

This essay is a direct philosophical and normative attack on natural-rights justifications for copyright (and by extension IP more broadly). Lunney begins with the observation that copying/imitation is the foundation of civilization: language, culture, technology, and knowledge transmission all depend on it. Without the ability to copy, humans could not learn, share discoveries, or build cumulatively (“standing on the shoulders of giants”). Creativity is valuable but secondary; copying is the sine qua non of progress.

He critiques Wendy Gordon’s influential 1993 article that used John Locke’s labor-desert theory to argue for a natural right to exclude others from copying original expressive works. Lunney argues Gordon conceded too much by equating copying with “theft.” Copying is not theft (it does not deprive the owner of the original); it is a natural human faculty and the default rule in any sensible baseline. Locke’s framework, properly read, supports a natural right to copy, not a natural right to monopolize copies. Copyright is purely positive (statutory) law—an artificial, narrow exception to the general freedom to copy—and should be construed narrowly. Lunney emphasizes that self-interest, reputation, and market forces already provide substantial incentives for creation even without broad copyright; expansive protection mainly serves concentrated industry interests at the expense of consumers and cumulative culture.

How anti-IP is Lunney compared to Stephan Kinsella?

Kinsella is one of the most radical and consistent abolitionists of all IP (patents, copyrights, and trademarks). He argues IP is unjust government-granted monopoly privilege that violates natural rights in tangible property and free speech, impedes innovation, and should be abolished entirely in favor of private-ordering alternatives (contracts, trade secrets, etc.). His site (C4SIF) celebrates scholars who are “thumbs down” on IP and explicitly frames copyright as “the new mercantilism.”

Lunney is strongly anti-IP in practice and is explicitly cited approvingly by Kinsella in both of the consulted posts:

• Kinsella’s “Legal Scholars: Thumbs Down on Patent and Copyright” lists Lunney alongside abolitionists and radical skeptics (Kinsella, Tom Bell, etc.).
• Kinsella’s “Copyright: The New Mercantilism” post highlights Lunney’s critique that modern copyright expansions rest on mercantilist/job-protection rationales rather than genuine incentive arguments, and that even a very limited copyright (roughly the scope of the 1790 Copyright Act—14 years against commercial mechanical duplication) “may” be justified, but broader protection is unjustified and harmful.

Key differences in degree of opposition:

• Lunney is a reformist skeptic. He accepts that some very minimal, narrowly tailored IP (especially traditional deception-based trademark and perhaps a short, limited copyright) could be defensible on efficiency/incentive grounds in theory. His work focuses on showing that current expansive doctrines have overshot that point and created unjustified monopolies. He works within the existing legal framework to constrain and roll back overreach.
• Kinsella is a principled abolitionist. He rejects the entire IP category as illegitimate on both deontological (natural rights) and consequentialist grounds and calls for its outright elimination, not mere narrowing.

In short, Lunney is one of the more prominent academic critics of expansive IP and is squarely in the “anti-IP” camp as Kinsella defines it—he supplies powerful scholarly ammunition against modern copyright and trademark expansion. But he stops short of Kinsella’s full abolitionist position, leaving open the possibility of a stripped-down, incentive-justified core. Kinsella is farther out on the spectrum: total elimination of state IP monopolies. Lunney is “anti-IP” enough to be praised by Kinsella, but more moderate/reform-oriented in his ultimate prescriptions.

***

A Natural Right to Copy

Glynn S. Lunney Jr, “Trademark Monopolies,” Emory L. J. 48 (1999): 367–487

Abstract:

Since 1742, when Lord Hardwicke seemingly equated trademark protection with monopoly in one of the first trademark cases, until the mid-1950s, concerns that trademarks represented a form of illegitimate monopoly effectively constrained the growth of trademark protection. In the twentieth century, Edward Chamberlin became the leading proponent of the trademark as monopoly view with the publication of his work, The Theory of Monopolistic Competition, in 1933. In his work, Chamberlin argued that a trademark enabled its owner to differentiate her products and then to exclude others from using the differentiating feature. By doing so, trademark protection can effectively cede control over distinct product markets to individual producers and thereby generate for trademark owners the downward sloping demand curve of a monopolist, with its associated monopoly rents and deadweight losses. Although Chamberlin himself recognized the need for product differentiation and rejected the supposed ideal of the perfect competition model, his work became a common rallying point for the trademark as monopoly argument. During the legislative debates leading to the Trademark Act of 1946, his work served as a basis for the Justice Department’s opposition to broad trademark protection.

***

Glynn S. Lunney, Jr., “A Natural Right to Copy,” Boston University Law Review, Forthcoming;  Texas A&M University School of Law Legal Studies Research Paper No. 19-42 25 (Posted: 20 Aug 2019)

Abstract:

In this symposium, we gather to celebrate the work of Wendy Gordon. In this essay, I revisit her article, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property. In the article, Professor Gordon first used the “no-harm” principle of John Locke to justify copyright as natural right and then used his “enough-and-as-good” proviso to limit that right. Her second step turned natural rights approaches to copyright on its head. Through it, she showed that even if we accept copyright as natural right, that acceptance does not necessarily lead to a copyright of undue breadth or perpetual duration. Rather, even a natural rights framework leads to a copyright regime shorter and narrower than we presently have.

While I agree that copyright should be shorter and narrower, I worry that Professor Gordon conceded too much in her first step. Neither Locke’s reasoning nor Professor Gordon’s reading of it can justify a right to prohibit copying as a matter of natural law. It is not the right to prohibit copying to which we have a natural entitlement. It is the right to copy.

Andrea Togni, “The Multiple-Homesteading Theory and the Metaphysics of Ideas and Information,” Journal of Libertarian Studies 30, no. 1 (2026): 64–86.

Abstract:

This article explores the intersections between privacy, property rights, ideas, and information. The multiple-homesteading theory (MHT) posits that property rights have universal applicability, encompassing the physical, digital, and mental domains. Property in ideas and information (PII) exists only as long as privacy is fully maintained. Once shared, ideas and information trigger automatic homesteading processes in any individual who comes into contact with them; these individuals then form new and original ideas, which remain their exclusive property as long as privacy is preserved. Any libertarian addressing PII must investigate the ontological nature of ideas and information, which cannot be defined in purely physicalistic terms. This article carries out this preparatory work through examinations of heterogeneous philosophical and scientific theories, literature, and classical music. In addition, a meme theory of ideas is outlined. Ultimately, recognizing the existence of PII does not legitimize positivistic intellectual property (IP) legislation, which is incompatible with libertarian principles. Instead, the MHT demonstrates that privacy bridges coherent libertarian theory and effective libertarian action, especially in a world dominated by the pervasive intersection of the physical and digital domains.

Related:

• IP is Not “Not Property”
• It is impossible to own ideas
• Another way to explain the problem with IP: Resources v. Knowledge; Ownership v. Possession
• Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Rights; Hayek’s “Fund of Experience”; the Distinction Between Scarce Means and Knowledge as Guides to Action
• Intellectual Property Rights as Negative Servitudes
• “The Problem with Intellectual Property”
• More defenses of IP by the Federalist Society
• Anti-IP Material Needed in the IP Section of the Federalist Society’s “Conservative & Libertarian Legal Scholarship: Annotated Bibliography”
• Federalist Society Panel: Undermining or Preserving Property Rights? The New Administrative Patents
• Independent Institute on the “Benefits” of Intellectual Property Protection
• Austrian Economics Center and Hayek Institute Support IP Socialism and 2026 World IP Day Coalition
• Attempts to Get on Mainstream IP Podcast and AIPLA Quarterly Journal Predictably Fail
• KOL235 | Intellectual Property: A First Principles Debate (Federalist Society POLICYbrief)
• Other Federalist Society mentions

I have no doubt in my mind they will royally screw this up.

When Should We Recognize Something as a Property Right?

May 8, 2026
Friday, 12:00 p.m. EDT
Webinar

Sponsors: Intellectual Property Practice Group [continue reading…]

In comments I suggested:

• IP is Not “Not Property”
• Intellectual Property Rights as Negative Servitudes
• “Conversation with an author about copyright and publishing in a free society”

IP: The Property That Isn’t

[continue reading…]