What You Need to be Solid on IP

by Stephan Kinsella on April 29, 2015

From a Facebook thread, in which I was pinged to explain how Rothbard erred on intellectual property–my comment, edited somewhat:

We stand upon the shoulders of giants. Rothbard was such a monumental figure and genius, and did so much for libertarian theory and to advance Misesian Austrian economics. Even so, there are some gaps in his framework, and a couple of missteps. I’d say the gaps include a fully developed rights framework (which he basically admitted in his comments on Hoppe’s argumentation ethics), and his lack of attention to and emphasis on the importance of scarcity to human action and property rights. Hoppe’s own focus on this feature is why Hoppe was able to easily see the truth about IP, without even much reflection, apparently, when it takes others (including me) several years to finally see the IP issue properly.

Another thing is that most Misesians, somewhat surprisingly, even if they accept praxeology, mostly ignore the “knowledge” part of action, and they analyze only the “scarce means” or “economic goods” aspect–even though in praxeology these two factors of action each have deep significance: in acting, we are guided by knowledge of causal laws, in choosing which scarce means to employ, to achieve our ends. Both knowledge and the scarce means are essential to human action but most Austrians and economists focus on the latter only. Rothbard was no exception to this. If he had drilled down into the knowledge side of praxeology more deeply, perhaps he would have realized more easily that IP is incompatible with property rights: that property rights apply to the scarce means part of action but not to the knowledge/recipe part of human action. Ironically, some people do focus more on knowledge–Hayek, people like George Gilder–but they do so not from a praxeological framework, and therefore, this insight is not as easy to obtain for them. The insights about IP have to come from a combination of (a) praxeological awareness, (b) deep analysis of the nature of and distinction between the roles of knowledge and scarce means in the structure of human action, including (c) extensive analysis into the role of knowledge in guiding human action; (d) a searing focus on the connection between economic scarcity, conflict, cooperation, and ownership-property rights. It also helps to have a (e) Rothbardian-Lockean type understanding of property rights and politics. (f) An awareness of actual legal systems, in a sophisticated sense, helps, too. Hoppe basically had all of these factors to one degree or the other, even if he was a bit light on (b), and not extremely deep on (f), he was deep enough into them due to his foundations (Rothbardian and Misesian and other) and wide reading and frankly systemic genius. That is why he was able to see the answer to the IP issue instantly, in 1988, in response to a random audience question. Rothbard did not go far enough into (b) and (c) and (d) to arrive at the right answer. (I am frankly a bit confused as to why Mises did not. He seemed to have all factors covered sufficiently, except perhaps, for (b) and (e). But the main problem is that he did not turn his attention to IP. Nor did Rothbard.

Rothbard’s mistake on IP is a bit surprising given his trenchant analysis of defamation law–which is a type of IP law. He did not extent this analysis to other types of IP. (In this, he is similar to Rand, who had somewhat schizophrenic strands in her thought: on the one hand, she recognize we cannot metaphysically create anything; that we rearrange material to make it more useful. This line of thought ought to lead one to recognize that IP is incompatible with normal property rights. But she didn’t.)

Incidentally, none of this is to criticize Rothbard at all. He could not do everything or be infallible! I am quite confident that had Mises and Rothbard really realized what IP would be come, they would have revisited the issue and had they analyzed it closely, they would have come to the position Hoppe and I hold.

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Stephan Kinsella nb. Jeffrey Tucker

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