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Are Libertarians For Intellectual Property?–IEET Discussion

An IEET discussion from 2009:

Are Libertarians For Intellectual Property?

J. Hughes

J. Hughes
Ethical Technology

Posted: Aug 26, 2009

Intellectual property, like biopolitics, is not a simple left-right issue. There are arguments for and against patents on human genes, and patents in general, from both progressives and libertarians. Stephan Kinsella, for instance, is a libertarian critic of intellectual property.

Mr. Kinsella recently weighed in with a longish comment on the debate between Randy Mayes and David Koepsell on human gene patents here at the IEET. With his permission I repost that comment here.

imageMr. Koepsell,

I read with interest your comments above criticizing IP from a self-professed libertarian perspective. I am a libertarian and a practicing patent attorney and I too oppose patent rights (one of the few patent attorneys who dare to)—patents are, as you say, unnatural and artificial privileges granted by the state at the expense of real property rights. My website contains various articles, books, and speeches on this topic, including Against Intellectual Property, and my recent speech “Intellectual Property and Libertarianism.”  I’m also affiliated with the Mises Institute, so I suppose Mr. Mayes has my work in mind when he unfairly, uncharitably, and falsely disparages and dismisses us as “idealogues.”

I heartily agree with you when you write that you are “consistently confused by “libertarians” who support a government-sponsored monopoly of any kind” and that patents “are the grant by a government of an artificial monopoly of the practice or sale of a useful art or product.”

Given that you recognize this, it is not clear why you seem to draw back (at least in this post; I have not yet read your book, which I intend to do) from a more sweeping critique of patents in general. E.g., you write, “IP laws only conflict with notions of justice when they impinge on some other, grounded right, as I argue they do with the genetic commons.” IP laws always impinge on property rights. That is their purpose and nature.

I must say I sympathize with your comments about conflicts of interest on the side of IP advocates—isn’t it striking that almost every patent lawyer or big company that benefits from this state monopoly is in favor of the practice? You are right: the patent industry benefits patent lawyers, so of course they tend to mindlessly repeat the state propaganda that supports their profession’s existence.

As for Mr. Mayes’s comments, he writes:

“Your confusion related to libertarianism and what libertarians think is probably due to several reasons. What libertarians think is not universal. Libertarians at the Ludwig von Mises Institute are ideologues. They do not want the state involved period, so this provides an argument against patenting DNA for them. Civil libertarians are complaining about freedom of speech restrictions from patenting DNA, which is a week argument.

“Pragmatic or mainstream libertarians housed at the Cato Institute and CEI are interested in IP as an extension of individual rights. Ayn Rand regarded IP as the base of all property rights: a man’s right to the product of his mind. In the process, freedom of speech issues arise as well as the monopoly issue which create the confusion. Since the right to own property is the most fundamental right for mainstream libertarians, this overrides the speech and monopoly issues.”

Well, as for free speech, I grant you that it is more endangered by another state-granted pattern-privilege, patent law’s cousin, copyright (see my post Book Banning Courtesy of Copyright Law). Some Cato scholars support IP rights, but not all (see the work of Tom Palmer, for example—are they idealogues too, now?). Ayn Rand’s defense of IP was seriously confused, and she would never have granted that IP so important that it “overrides” “speech and monopoly issues.” IP rights are not an extension of property rights; they quite obviously undercut and invade property rights—a patent gives a right to its holder to legally force someone else not to use their own property as they see fit.

As for the repeated claims by various defenders of IP and critics of Mr. Koepsell to the effect that patent protection is “needed” to “incentivize” various forms of innovation—Mr. Holman in his review refers to “the important role gene patents have played in incentivizing the development of life-saving therapeutics” as if this is obvious and uncontroversial—this is the same old bankrupt utilitarian reasoning that is triply flawed. First, as I point out in Against Intellectual Property, utilitarianism is morally flawed—you could justify all sorts of horrible policies, including legalized theft, this way; and it is methodologically flawed since it is based on the unscientific notion that utility can be cardinally measured and interpersonally compared (the insights of Austrian economics shows that this is not the case).

But even if we ignore the ethical and other problems with the utilitarian or wealth-maximization approach, it is bizarre that utilitarians are in favor of IP when they have not demonstrated that IP does increase overall wealth. They merely assume it does (or say they assume it does) and then base their policy views on this assumption. It is beyond dispute that the IP system imposes significant costs, in money terms alone—not to mention liberty costs. The argument that the incentive provided by IP law stimulates additional innovation and creativity has not even been proven. It is entirely possible—even likely, in my view—that the IP system, in addition to imposing billions of dollars of cost on society, actually reduces or impedes innovation, adding damage to damage (see my post What are the Costs of the Patent System?).

But even if we assume that the IP system does stimulate some additional, valuable innovation, no one has established yet that the value of the purported gains is greater than the costs of the system. If you ask an advocate of IP how they know there is a net gain, you get silence (this is especially true of patent attorneys). They cannot even point to any study to support their utilitarian contention; they usually point to Art I, § 8 of the Constitution, as if the back-room dealings of politicians two centuries ago is some sort of evidence. In fact, as far as I’ve been able to tell, virtually every study that attempts to tally the costs and benefits of copyright or patent law either concludes that these schemes cost more than they are worth; or that they actually reduce innovation; or the study is inconclusive. There are no studies showing a net gain (see my post “Yet Another Study Finds Patents Do Not Encourage Innovation”; and, in this connection, I also highly recommend Boldrin and Levine’s Against Intellectual Monopoly and their blog Against Monopoly, to which I contribute).

Instead, we hear repetitions of propaganda trotted out by the state to justify its artificial legislative schemes. But the truth is that anyone who accepts utilitarianism should, based on the available evidence, be opposed to IP. That they are not is telling—it is like those who claim to be environmentalists or fret about “global warming” but never advocate nuclear power, the obvious solution to the “problems” they pretend to be worried about.

James Hughes Ph.D., the Executive Director of the Institute for Ethics and Emerging Technologies, is a bioethicist and sociologist at Trinity College in Hartford Connecticut USA, where he teaches health policy and serves as Interim Director of Institutional Research and Planning. He is author of Citizen Cyborg and is working on a second book tentatively titled Cyborg Buddha. He produces a syndicated weekly radio program, Changesurfer Radio. (Subscribe to the J. Hughes RSS feed)

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Stephan Kinsella • Houston • Aug 26, 2009

Mr. Hughes,

Thanks for posting my piece, and for your succinct introduction.

FYI, I’ve been active in libertarian theory for almost two decades now. In my view the anti-IP position is dominant among principled libertarians and is growing rapidly, especially among the young. The primary holdouts are: (a) Randians and Galambosians, who have an utterly bizarre, extreme, and quasi-utilitarian approach despite their protestations; and (b) utilitarians who are not very principled, and who take an ad hoc approach to everything.

But the great bulk of libertarians are sold on the anti-IP case by virtue of moral and normative arguments such as those I present in my Against Intellectual Property. But it seems to me the only coherent, principled stance on IP comes from the libertarian side, since it is necessary to have defensible, clear view of property rights and its justification first.

Progressives’ approach to IP is less princilped and less coherent. Some of it is motivated by andi-industrial/anti-capitalist animus: these people agree, with the libertarian IP advocates, that IP is part of capitalism and property rights, and for this reason oppose it. Libertarian IP advocates support IP because they think it is part of property rights.

jhughes • Hartford, CT • Aug 27, 2009

Well Stephan, you can count me as an opponent of IP overreach, and human gene patents, who comes to my position from utilitarian ethics and socialist political economy. However I am not a utilitarian to the degree that I think that, regardless of social utility, natural facts like genetic sequences should be patentable unless they are truly novel, useful intellectual creations. That principle seems essential on logical and utilitarian grounds.

But I appreciate your cogent and fascinating parsing of why consistent libertarians, or at least “anarcho-Austrians,” should be skeptical of patents and copyrights. Since I don’t agree with your Lockeian deontological assumptions I am less radical, simply wanting to press back against the socially harmful effects of corporate power, while protecting the very narrow socially beneficial uses of IP. In that trench we appear to be shooting in the same direction at the same enemies.

Stephan Kinsella • Houston • Aug 27, 2009

I think you left out a “not” before “be” in your second sentence…?

Randall Mayes • Durham, NC • Aug 28, 2009

Stephan, I am not familiar with you or your work at all.

I believe we have different psychological perspectives on approaching patenting DNA. I feel connected to the history that has led to the current biotechnology infrastructure. Also, I feel connected to the type of libertarianism advocated by CEI and Cato embracing limited government which is practiced ubiquitously in the US at the municipal, state and federal levels. Since no government entity in the US, that I am aware of anyway, practices the von Mises ideal of political economy, ther must be a disconnect with what is going on and possibly some feeling of alienation.

I do not think that Tom Palmer is an idealogue. Upon reading about his background, I discovered he has affiliations with the Institute for Humane Studies. This would explain his conservative and moral objections to patenting DNA. Obviously, Cato respects his individuality on this issue which contrasts their official position and that is what their brand of libertarianism is all about. In contrast, I would imagine that a Mises scholar would have to quote Rothbard, Mises , or Hayek to give an official position which is my interpretation of an ideologue.

Main Entry: ideo·logue
Variant(s): also idea·logue
Function: noun
Etymology: French idéologue, back-formation from idéologie
Date: 1815
1 : an impractical idealist : theorist
2 : an often blindly partisan advocate or adherent of a particular ideology

A number of psycholigists refer to the ability to form a sense of self as the final stage of cognitive develoment. Unfortunately, not everyone reaches this stage. I have the highest respect for IHS since Leornard Liggio taught me classical liberalism and I consider him my favorite teacher of all. No one has influenced my politics as much as he has.

Here is an article titled “The FTC’s Suit Against Intel Is an Attempt to Steal Intellectual Property” by: Robert S. Getman on Ayn Rand’s official website regarding monopoly caused by IP. Rand actually feels there is a moral obligation to protect our intellectal capital.


But, actually my quote is referring to David Koepsell’s confusion with how libertarians justify a temporary monopoly. My discussions with other pragmatic liberatian scholars informed me of the heirarchy of core values.

Stephan Kinsella • • Aug 28, 2009

Dear Mr. Mayes,

Strain as I might, I am confess that unable to discern even a hint of coherent argument in your no doubt higher level take on things. No doubt this is my own limitation due to being a “von Mises ideologue.” As best I can tell, you feel “connected” to something or another, and that settles it for you. How nice for you. Us lowly “von Mises ideologues” can only strive in vain to reach such lofty heights.

cc • Chicago • Sep 6, 2009

Is the OP here criticizing all intellectual property or just excessive intellectual property?

Without IP, branding in general would become somewhat worthless if you could start a firm or sell a product with the exact same name and appearance as an existing one.

I can’t really see anyone investing a lot in game development if piracy becomes legal – the day after release prices would drop to the cost of a blank DVD.

David Koepsell • Delft, NL • Sep 6, 2009


A case study in non-IP profit making with software is Id software, whose Doom engine generated many millions for it despite being released into the public domain. Why did people program and continue to improve Linux without IP protection? Open Source licensing is contract law, not a govt-sponsored monopoly, and seems to work for quite a number of software products that are well-trusted, widely-distributed, and moreover, real good products making money too.


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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.