My article “Defamation as a Type of Intellectual Property” (pdf) has been published in Jörg Guido Hülsmann & Stephan Kinsella, eds., A Life in Liberty: Liber Amicorum in Honor of Hans-Hermann Hoppe (Sept. 20, 2024).1 My original title was “Defamation Law and Reputation Rights as a Type of Intellectual Property” but I have simplified it.
In this article I briefly survey the modern concept of intellectual property, or IP, its four primary component rights—patent, copyright, trademark, and trade secret—and how this concept and the “IP” terminology emerged. I then summarize the libertarian criticism of the main forms of IP with a focus on trademark law since it has the most similarity to defamation law and the reputation rights it protects. Next I provide the libertarian case against defamation law and reputation rights, and show similarities in the arguments for both trademark and defamation law as well as similarities in the case against both. I conclude that defamation law should be classified and treated as a type of IP and that like all forms of IP, it is illegitimate.
For previous arguments against defamation law, see Murray N. Rothbard, “Knowledge, True and False,” in The Ethics of Liberty (New York: New York University Press, 1998) and Walter E. Block, “The Slanderer and Libeler,” in Defending the Undefendable (2018).
Update: In my chapter I note:
And yet legal scholars generally do not include defamation law in as a type of IP. Defamation rights are not included in the discussion and list of IP rights in major textbooks and treatises, for example.
I then mention several books and publications that nowhere seem to include defamation as a type of IP.
However, it is interesting that one leading text on defamation, Sack on Defamation: Libel, Slander, and Related Problems is in fact sold by the publisher, Practising Law Institute, as part of its “Intellectual Property Law Library,” even though defamation is not usually regarded as a type of IP.
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I also note that Leland Yeager also criticizes Rothbard for his views on defamation. In Ethics as Social Science: The Moral Philosophy of Social Cooperation (Edward Elgar: 2001), pp. 277–78, he writes:
Rothbard (1982), like Block, tries to deduce all sorts of specific judgments from a few axioms about rights. These include the right of self-ownership, the right to property acquired through the Lockean process of mixing one’s labor with hitherto unowned resources, and the right to property acquired through voluntary transactions. The concept of property right, including property in one’s own body, appears fundamental. Rights are violated only by actual or threatened physical aggression or by fraud, which resembles force and threats in essential respects.
Rothbard deduces that people have a right to commit libel and slander (a right rather different from my conception articulated in Chapter 10). Anyone has a property right to print and disseminate anything he wants—even deliberate falsehoods about another person. Neither the victim nor anyone has a right to the integrity of his reputation, for that would imply a preposterous right to control thoughts in the minds of other people. From the right to commit libel and slander Rothbard derives a right to commit blackmail; for a blackmailer has a right to engage in an agreed and therefore presumably mutually beneficial transaction whereby he forbears from an act that he would have a right to commit. As for invasion of privacy, well, no one has any right to privacy except the right to have one’s person and other property free from physical invasion or trespass. If the blackmailer obtains his sensitive information by stealing letters or tapes or by bugging his victim’s home or office, the theft or trespass is the actual offense, not the blackmail as such. If, however, the blackmailer obtains his information from old newspapers or other legally available records or by buying it from old associates of the victim (provided they have not contracted to maintain confidentiality), no rights are violated. On the contrary, to outlaw blackmail or the spreading of false libels against someone’s person or product would itself be an aggressive violation of rights, for outlawing something means using force or the threat of force to suppress it.
Boycotts, including secondary boycotts, are a legitimate exercise of free speech and of property rights. Contracts should be legally enforceable only when nonperformance constitutes a straightforward or implicit theft of property (or, one might add, in the spirit of Rothbard’s position, when nonperformance constitutes a physical invasion of person or property, if that is conceivable).
Rothbard arrives at his remarkable conclusions by trying to squeeze all issues into his property rights framework and by sharply distinguishing between physical and nonphysical (such as verbal) aggression. Such a sharp distinction between the material and the nonmaterial seems odd, incidentally, coming from an economist of the Austrian school, which puts so much emphasis on the subjective aspect of commodities and of human affairs generally.
Errata
—No errata—
Non-Errata
P. 278: Note 10 references Robert Andrew Macfie, ed., Recent Discussions on the Abolition of Patents for Inventions in the United Kingom, France, Germany, and the Netherlands: Evidence, Speeches, and Papers in Its Favour: With Suggestions as to International Arrangements Regarding Inventions and Copyright (London: Longmans, Green, Reader and Dyer, 1869). It has come to my attention that this book may be found at Google Books here and here. See also the “sequel”: R.A. Macfie, ed., Copyright and Patents for Inventions: Pleas and Plans for Cheaper Books and Greater Industrial Freedom, with Due Regard to International Relations, The Claims of Talent, the Demands of Trade, and the Wants of the People, vol. II (Edinburgh: T. & T. Clark, 1883).
- It was originally slated to appear in Elvira Nica & Gheorghe H. Popescu, eds., A Passion for Justice: Essays in Honor of Walter Block (New York: Addleton Academic Publishers, forthcoming) but was withdrawn. [↩]
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