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The Worst Argument for IP Ever?

As I’ve noted before, there are no good arguments for intellectual property.1 It’s really astonishing. Utilitarians say it’s “necessary” to “incentivize” innovation–but they have no evidence to back this up; it’s mere assertion and assumption.2 Randians and others who try to find a more principled basis for IP invariably make several mistakes–for example, that “creation” is an independent source of ownership,3 or that value is objective, intrinsic, “created,” and an ownable substance; and/or the quasi-Marxian idea that we “own” our “labor” and “thus” are “entitled” to some kind of “reward” for laboring.4

It’s hard to say which argument for IP is the worst, since they all just keep repeating the same errors, over and over. Rand’s was bad–a confused mixture of most of the fallacies noted above, a deontological-Marxoid-utilitarian hodge-podge masquerading as libertarian-Lockean principle (even Locke didn’t think his natural rights theory included IP; Rand I (“‘Creation’ means the power to bring into existence an arrangementof natural elements that had not existed before”) should have known better than Rand II (“Patents are the heart and core of property rights”; Objectivists: “All Property is Intellectual Property”). Galambos’s was even worse, with its ridiculous amateur-engineer scientistic-crankish notions of “primordial” and “primary” property (every time you use “liberty,” you should drop a nickel in the Thomas Paine Descendant Royalty box).5 And there are some other arguments that are so absurd it’s hard to take them seriously.6

J. Neil Schulman, perhaps sensing some problems with standard arguments for IP, at least tried to set forth an original argument in his “logorights” theory. But it, too, is flawed.7 More recently, another libertarian sci-fi Neil, L. Neil Smith, make a half-hearted rear-guard attempt to justify IP, but it was not much more than assertion and repetition of old Randian IP assumptions.8

And now comes arguably the worst. As I’ve noted, “free market” proponents of IP and some leftist opponents of IP make the same error: they both assume IP is a legitimate subset of property rights. The IP libertarian supports IP because they believe it is a type of property. The leftist opposes IP because they agree with this classification, but they are opposed to property. So the leftist correclty opposes IP, but for the wrong reasons.

Leave it to an anarcho-capitalist cum socialist to come up with the worst possible combination of confused beliefs. In The case for socialist intellectual ownership, Voluntary Human Extinctionist Francois Tremblay (VHEMT’s motto: “May we live long and die out”) argues, as best I can tell:

  • property is bad;
  • therefore IP, as a form of property, is bad;
  • but Intellectual Ownership (IO) is justified since we need to reward “the individual who laboured to discover,” but not “the owner of the idea itself, being an abstract piece of property”.
  • “In the IO system, everyone is encouraged to manufacture products which take advantage of the innovation. There is no restriction of the kind we see today. The only limitation is that the cost-price must be raised by a certain percentage, reflecting the added cost of the innovation itself. In the case of artistic works, this percentage might be up to 1%, but in the case of innovations, it would be a range something like 0.1%-0.01%, the specific percentage in each case depending on how significant the improvement is.”

So…. he rejects property (bad) … and he rejects IP because it’s property … but he supports a variation of IP called IO based on the hoary, pseudoscientific Marxoid idea of labor-ownership. Hmmm. About as confused as can be. It’s like an innovation-VAT. Way to penalize innovation! As my C4SIF colleague Nina Paley noted to me:

Whaa? How exactly would the “added cost of the innovation itself” (?) be controlled, enforced, etc.? Looks like it would require a ton of surveillance. … I definitely mind the implication that a surveillance state is a “solution.”

The only limitation is that the cost-price must be raised by a certain percentage, reflecting the added cost of the innovation itself. In the case of artistic works, this percentage might be up to 1%, but in the case of innovations, it would be a range something like 0.1%-0.01%, the specific percentage in each case depending on how significant the improvement is.

And who is going to decide “how significant the improvement is”? Yikes.

Just goes to show you what happens when you lose your libertarian moorings, reject property rights, and adopt Marxoid fallacies about “labor” and other nonsense. As we say in law, res ipsa loquitur (the thing speaks for itsself).

[Mises cross-post]

  1. See also The Death Throes of Pro-IP Libertarianism. []
  2. See “There’s No Such Thing as a Free Patent“;  “Reducing the Cost of IP Law“; What Are the Costs of the Patent System? []
  3. Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging” []
  4. See The Death Throes of Pro-IP Libertarianism; and “Rand on IP, Owning ‘Values,’ and ‘Rearrangement Rights’,” discussing Hoppe’s criticism of property rights in value. []
  5. Galambos and Other Nuts; Galambosian IP Recursion; Against Intellectual Property, p. 27. []
  6. Absurd Arguments for IP. []
  7. See Kinsella v. Schulman on Logorights and IP; On J. Neil Schulman’s Logorights. []
  8. See “The L. Neil Smith — FreeTalkLive Copyright Dispute” and Jeff Tucker, “L. Neil Smith on IP“. For a sampling of some of other recent, futile libertarian attempts to defend IP and to stem the migration to the anti-IP side, see: “IP: The Objectivists Strike Back!“; “Shughart’s Defense of IP“; “Richard Epstein on ‘The Structural Unity of Real and Intellectual Property'”; “Yeager and Other Letters Re Liberty article ‘Libertarianism and Intellectual Property'”; “Objectivists: ‘All Property is Intellectual Property'”; “Objectivist Law Prof. Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors.” []
{ 7 comments… add one }
  • Francois Tremblay December 15, 2010, 12:14 am

    Gee, I expected something better from the man who’s made his name by debunking IP. Is that really your only argument? That IO penalizes innovation? How does it penalize innovation, Kinsella? Your objection is unjustified and doesn’t even make any sense. Innovators in the capitalist system are not rewarded adequately: only 2.2% of the surplus generated by an invention goes to the inventor himself (not all the money paid for it, but only the surplus), so the inventor profits very little from what he contributes to society- and we can’t expect any “ancap” or Misesian system to do better. Capitalism, because of its commodity fetishism, fails at stimulating innovation, and in many cases, as you know yourself as regards to IP, does the exact opposite. A socialist system of IO where the emphasis is put on rewarding innovators without encumbering commerce, however, does. The system I propose is specifically designed to give innovators their fair share of their own production (innovation), which has the logical effect of increasing incentives as well.

    Of course, you bleat about your antique propertarian mindset, which was already debunked by Proudhon 170 years ago. How boring… Mises himself proved that your corporate system is inefficient and will fail, it has failed and had to be rescued by big government, but you’re too busy sticking your fingers in your ears and screaming “LA LA LA you’re a Marx quackpot I can’t hear you!” to realize the failure of your worldview.

  • Keith Hamburger December 15, 2010, 1:06 pm

    It seems to me that the biggest issue is internal inconsistency, as virtually every such collectivist argument boils down to. The argument for ownership but no property appears to be the worst and most fundamental flaw.

    Ultimately, the communist/socialist/collectivist argument is somehow that you don’t own yourself and your life, many others have a claim on it, but, somehow, the labor your provide is your property, but not the actual fruits of that labor beyond your own sustenance.

    • Stephan Kinsella December 15, 2010, 1:21 pm

      Of course. It’s just confused to talk about ownership but say you oppose property–they imply each other. Everyone believes in property rights, as I explain in What Libertarianism Is. It’s just people differ in their favored property title allocation schemes. We are libertarians; everyone else is some type of pro-slavery socialist.

    • Francois Tremblay December 15, 2010, 4:19 pm

      It seems you didn’t read my entry either, since this is an inconsistency that is not present in my argument. I’ve never stated that your labor is “your property.” I don’t believe in property.

      • Keith Hamburger December 15, 2010, 4:55 pm

        More ignorance. If you are supporting “Intellectual Ownership” and opposed to property then you are advocating for “ownership” of what? One owns property. One has a property interest in that which one owns. You can’t have one without the other.

        And, if one can have no ownership nor any property there is no justification for claiming a right to any proportion of one’s ideas or development, any more than one can claim a right to their labor or their lives.

        • Francois Tremblay December 15, 2010, 4:58 pm

          Once again, is that the best you guys can do? Equating all modes of ownership with property, and ignoring all the alternatives? What totalizing nonsense. This is what capitalism does to your brain.

To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.