I’ve discussed before The Origins of Libertarian IP Abolitionism (see also The Four Historical Phases of IP Abolitionism). Not until fairly recently did liberal and libertarian thinkers start really getting the case against IP right. An exception is Benjamin Tucker, who was anti-IP even back in the late 1800s.1 But as I noted in a Facebook thread, even Tucker’s case against IP seems to have ultimately been somewhat confused. For example, he thought that Spooner’s mistakes on IP2 were connected with what Tucker saw as Spooner’s mistakes on land. That is, Tucker is good on IP, but almost by accident. He believes the argument for IP is based on the idea that you own the products of labor (“he who first takes possession of any material production of nature”), but this argument must be rejected, because this would imply you can own land too. And because he had problems with the ownership of land,3 therefore the principle behind IP must be flawed too.
Most people accept the confused Lockean labor metaphor, and this leads many of them to favor IP.4 Yet Tucker thinks that the problem with the labor metaphor is that it would also imply you can own land. Ugh.5 If Tucker had realized (as Hume did) that the labor metaphor is just a metaphor and is not even necessary to the Lockean original appropriation argument, he would not have been as able to object to land ownership (since it does not rest on labor ownership), but he could have still rejected IP based on the different nature of scarce resources like land (which are ownable) and nonscarce things like ideas and information (which is not).6
In any case, other, earlier libertarians and proto-libertarians have been confused and/or wrong on IP for a long time, such as Spooner, as noted above, and even even Proudhon, who otherwise railed against “property” as “theft” (maybe);7 and, in the modern era, Ayn Rand, Andrew Galambos, J. Neil Schulman, Richard Epstein, and others.
Another that can be mentioned is Gustave de Molinari who unfortunately, it turns out, was also bad on IP, as can be seen in the “Second Evening” portion of his 1849 work Les Soirées de la rue Saint-Lazare: entretiens sur les lois économiques et défense de la propriété (Evenings on Saint Lazarus Street: Discussions on Economic Laws and the Defence of Property). As can be seen from the meandering discourse, and the conclusion, it appears Molinari, like the other confused socialists of the time—Spooner, Proudhon (maybe), et al., with the exception of Tucker and a few others—based on confused notions of property and utilitarianism, think that if you support property in material goods, you have to support property in IP.
Update: See also Luigi Marco Bassani, “Life, Liberty, and . . . : Jefferson on Property Rights,” J. Libertarian Stud., Volume 18, no. 1 (Winter 2004), pp. 31–87, at 64:
While an important nineteenth-century classical liberal such as Gustave de Molinari was in favor of a perpetual intellectual right of property, and conceived ownership of ideas as perfectly analogous to ownership of a material good, other classical liberals argued in favor of the natural right of single individuals to copy and reproduce whatever is legitimately theirs.
Probably the best overall libertarian in pre-modern times was Benjamin Tucker but even he, like lots of the earlier anarchists, was confused on some basic economic issues, the “land” question, etc.—this latter issue even corrupted his heroic opposition to IP: his argument against IP is that it is based on the idea that you own the products of labor (“he who first takes possession of any material production of nature”), but that this would imply you can own land. And we know we can’t have ownership of land, therefore the principle behind IP must be flawed too. [See Land Monopoly and Literary Monopoly]
So Tucker was great, esp. for his time, but not complete.
Further, he was too early to benefit from modern Austrian economics, especially the praxeological-Misesian approach. Which I regard as essential to being a basically modern, complete, systematic, coherent, principled libertarian. You need to be anti-state/anarchist, Austrian (Misesian), and also consistent and very propertarian. Without this it is more proto-libertarian or flawed libertarianism.
Update: see Louis Rouanet, “Michel Chevalier’s Forgotten Case Against the Patent System” (2015), stating that Molinari and most other French economists, such as Jean-Baptiste Say, Gustave de Molinari, and Charles Coquelin, were pro-patent (citing Molinari, Gustave de (1856): “La propriété des inventions, réplique à M. Frédéric Passy,” Journal des Économistes, 2nd series, 9 (25), pp. 133–36).
- See Wendy McElroy, Copyright and Patent in Benjamin Tucker’s periodical Liberty; also my post Benjamin Tucker and the Great Nineteenth Century IP Debates in Liberty Magazine. [↩]
- Tucker on Spooner’s One Flaw [↩]
- see Statist “Private Property” Is Theft [↩]
- Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors [↩]
- For a similar error in arguing against IP, see Clarence Lee Swartz and The Mutualist Associates, What Is Mutualism? (1927), pp. 9, 23, & 28–29 (opposing four types of monopolies: money, land, tariffs, and patent & copyright), 51 (arguing against the absentee ownership of land), 54–56 (arguing against patent and copyright). [↩]
- See Hume on Intellectual Property and the Problematic “Labor” Metaphor. [↩]
- Proudhon: For Intellectual Monopoly. [↩]
- Leonard Read on Copyright and the Role of Ideas [↩]
- LeFevre on Intellectual Property and the “Ownership of Intangibles”. [↩]