Anti-Deepfake Porn Laws: The Latest Type of IP

The purpose of property rights is to reduce conflict in the use of scarce means by assigning owners based on objective and just criteria, namely original appropriation (ownership, property) and contractual title transfer (contract), plus ancillary rules for tort (rectification).¹

Notice there is no role for “creation” as a source of property rights. Creation is only a source of wealth, but not of property rights.² But many people think creation is a source of rights because our political philosophy and legal system is based on a fundamental mistake made by Locke in his attempt to oppose the divine right of kings and the natural rights of people. The mistake is insertion of a needless step in the argument for homesteading advanced by Locke, which unnecessarily assumes that owning one’s body, or “self,” implies owning one’s labor. Thus, when one mixes one’s owned “property”³ (labor) with an unowned thing, one becomes its owner. But this argument takes a “needless circuit.”⁴ This has led to the idea that labor, or even actions, are owned, to metaphors like “you own the fruits of your labor,” to the idea that hard work entitles you to a profit or return, and to the libertarian-propertarian “creationist” idea that property rights come from creation, rather than understanding that all production—the creation of wealth of value—is simply the result of applying effort and labor and mental input to the rearrangement of existing, already-owned input factors. This leads to confusing notions, such as the idea that because humans owns their bodies, they own their “selves” (whatever that means) and “therefore” they own their “actions” such as “labor”… which ultimately led to the labor theory of property and ultimately the labor theory of value of Adam Smith, David Ricardo, and then Marx— ⁵ The Lockean justification for homesteading or original appropriation is ultimately correct but it is needlessly complicated and includes unnecessary (and flawed) steps and assumptions about ownership of labor, labor-mixing, and so on. In fact Locke’s labor-mixing rule has been criticized by Richard Epstein as inferior to the simpler Roman Law rule for “occupatio“.⁶

In any case, once we lose sight of the purpose and nature of property rights and think of owned things a coming to be owned by acts of “creation,” and we conceive of property rights as rights in the value of things rather than in the physical integrity of owned, scarce resources,⁷ all bets are off. Once we supplement normal property rights in corporeal, tangible, material, scarce resources by “adding on” other so-called “property rights” in immaterial things, in ideas, in value, then there are no limits to the new rights that can be created, which will all undermine existing property rights.

Thus, in addition to normal property rights in material, scarce, corporeal resources, we have various “intellectual property” rights in patterns of information, in value. Patent and copyright are the two most damaging types of IP,⁸ but others like trademark and trade secret do lots damage as well. As do newer types of IP, such as semiconductor maskwork protection and so on. As I have noted elsewhere, new types of IP rights are proposed all the time, e.g.:

• Bartenders Looking For Greater Intellectual Property Protection For Drinks
• Agitation to add IP laws for fashion designs
• Daft Idea Of The Week: Giving People Copyright In Their Faces
• Ban on “revenge porn”.⁹

IP is already threatening the emerging field of AI by way of copyright threats to the use of scraped data to train the large language models of AI engines, so it is no surprise that other IP-like laws are being proposed in response AI and its capabilities, such as “The US Needs Deepfake Porn Laws. These States Are Leading the Way” (Wired, Sep. 5, 2024).

All such laws banning deepfake videos are unjust and based on flawed notions. I am sure some libertarians—mostly, those who support IP law—will claim that such laws are justified since “fraud” is a crime and may be prohibited. But it is not fraud to lie, or to pretend. It is a specific crime with specific attributes.¹⁰ No one has a property right in the value of their resources or their lives, thus defamation law is unjust.¹¹ No one owns their reputation, no ones rights are violated by criticism or mockery or spoofs or even dishonest portrayals of them. There are no “personality rights” (right of publicity, name, image and likeness rights, and so on).

Of course these anti-AI-porn laws will be futile and will only make deepfake porn videos more popular, just as the drug war is futile and sometimes adds a “forbidden fruit” allure to dangerous drugs. A anti-IP-porn law is are also arguably unconstitutional since they violate freedom of speech and the First Amendment (and are not authorized by in the Constitution in the first place), although copyright also violates the First Amendment yet the courts refuse to recognize this.

Expect to see more unjust laws that hobble, distort, and impede the development of AI technology and that violate individual freedom and rights as this age’s obsession with IP continues to spin out of control.

1. Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) (LFFS), ch. 2, text at n.11 et pass., ch. 11, text at n.15 et pass.; also chs. 4, 5, 14, et pass.; Kinsella, “Aggression and Property Rights Plank in the Libertarian Party Platform,” StephanKinsella.com (May 30, 2022); idem, “KOL259 | “How To Think About Property”, New Hampshire Liberty Forum 2019, Kinsella on Liberty Podcast (Feb. 9, 2019). [↩]
2. LFFS, ch. 14, Part III.B, ch. 15, Part IV.C. [↩]
3. On the correct use of the concept and term “property,” see LFFS, ch. 2, Appendix I. [↩]
4. See LFFS, ch. 14, n.81; ch. 15, Part IV.D & nn. 56–57. [↩]
5. “Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory: Transcript; LFFS, ch. 14, Part III.B, ch. 15, Part IV.C. [↩]
6. See Epstein, “Roman Law talk by Richard Epstein” (go to about 9:10) and “What was the Roman View of First Possession? Roman Rule v. John Locke [No. 86]“. For more on this,  du Plessis, P. (2020) Borkowski’s Textbook on Roman Law, 6^th ed. Oxford: Oxford University Press, §7.2.3: “7.2.3 Occupatio“; Herbert Hausmaninger & Richard Gamauf, A Casebook on Roman Property Law, translated with introduction, supplementary notes, and glossary by George A. Sheets (Oxford: Oxford University Press, 2012), ch. III.D, on “Abandonment and Finding”; and my post Inability to Abandon Property in the Civil Law. [↩]
7. See Kinsella, “Hoppe on Property Rights in Physical Integrity vs Value,” StephanKinsella.com (June 12, 2011). [↩]
8. “Where does IP Rank Among the Worst State Laws?”; “Patent vs. Copyright: Which is Worse?”. [↩]
9. “Types of Intellectual Property”. [↩]
10. See Kinsella, “KOL207 | Patent, Copyright, and Trademark Are Not About Plagiarism, Theft, Fraud, or Contract,” Kinsella on Liberty Podcast (February 21, 2016); LFFS, ch. 9, Part III.E; idem, “The Title-Transfer Theory of Contract,” in David Howden, ed., Palgrave Handbook of Misesian Austrian Economics (Palgrave, forthcoming 2025). [↩]
11. See “Defamation Law and Reputation Rights as a Type of Intellectual Property” (forthcoming 2024). [↩]