German Translations of Hoppe and Kinsella on “Imaginary Property”

In 2001, Stephan Kinsella wrote a groundbreaking article titled “Against Intellectual Property ,” and nowadays, hardly any conversation on the topic of intellectual property can be had in libertarian circles without a reference to this article. I am pleased to make the article available in German with this book, because copyright law in particular is increasingly being questioned in Germany as well. Reading this book is essential to support this position.

Technological innovation and the rise of a generation that takes it for granted make it inevitable that copyright law will change. One of the most vocal advocates for reform, Lawrence Lessig, who observes cultures that have emerged online in particular, says the following:

Prof. Lessig is certainly right that current legislation needs to be changed. This is not limited to copyright law, however, but also applies to patent law. Since its inception, patent law has been expanded to include such questionable areas as software development, gene sequencing, and even business practices ^[ 2 ] . This creates a situation in which companies can never be sure that they might be infringing a patent and are therefore constantly at risk of being sued. A situation in which one cannot be sure that they are acting legally, in which one is constantly subjected to a seemingly arbitrary “ order ,” can be described as tyrannical to a certain extent. A pharmaceutical company cannot be sure that its researchers are not currently developing something that infringes a competitor’s patents. They are forced to hire legal counsel, if only to defend themselves in a potential “ patent war .” Acting legally in this situation is practically only possible for large companies, since only they can afford the lawyers to find out what is legal.

The “remix ” culture developing on the Internet cannot, by its very nature, comply with applicable law, because the works they create are based on other copyrighted works. Thus, participants in this culture are implicitly criminals simply by participating. If these creators do not believe they are breaking the law and this view is widely accepted in society, this has serious consequences for the relationship between citizens and the law. Lessig explains:

Indeed, ” Corrosive to Democracy ” can be seen as a guide. The articles in this book come from precisely such a philosophical school, one that does not take democracy for granted and in which critical examination of parliamentary legislation is practically the norm. This is libertarianism in the tradition of Murray N. Rothbard, represented in this book by Hans-Hermann Hoppe and Stephan Kinsella.

What is special about the criticism of intellectual property (hereinafter also referred to as intellectual property) presented here is its basis in principles. It is a critical examination of the underlying philosophical and ethical justifications of intellectual property. This stands in stark contrast to the usual criticism based on empirical observations or the balancing of interests of various social groups such as authors, publishers and private individuals. If no ethical basis can be found for intellectual property, then the questionable origins of copyright law are informative, but of secondary importance. Likewise, the interests of various social groups can only be balanced against one another if they are legitimate interests.

Consider, for example, the Pirate Parties, perhaps the most vehement advocates of reforming copyright laws at the political level in Europe. None of them go so far as to want to abolish them completely. This isn’t surprising, since their criticism isn’t based on principle, but rather the result of a balancing act between the interests of the authors and, in their view, much more important societal interests:

This is, of course, not a fundamental criticism, and it is therefore not surprising that the Pirate Party considers the ” economic interests of the authors ” to be ” legitimate .” This party would be well advised to examine the reasoning for ” seems immoral to us ” more closely. Lawrence Lessig also does not doubt the fundamental legitimacy of the general opinion:

This very justification, however, is questionable. As so often in history, interest groups hardly need to worry about the answers if the right questions aren’t even asked in the first place. Given the essentially utilitarian considerations outlined above, they have truly done a great job in this area. The real question must be: Is intellectual property ethically justifiable? Given their origins as a means of censorship and to grant monopolies on intellectual objects, as well as to benefit economic interest groups, it should come as no surprise that these laws fail to withstand scrutiny of their ethical justification. It should come as no surprise to discover that these parliamentary-granted privileges were created in disregard of fundamental rights (especially property rights).

Stephan Kinsella examines precisely this question in his article “Against Intellectual Property”, first published in the “Journal of Libertarian Studies” 15, no. 2 in Spring 2001. This article has caused a considerable rethink in libertarian circles. Its rigorous argumentation, as well as logical and conclusive examples, have convinced many – at least in these circles. ^[ 6 ] One might think that this book lacks an empirical examination of the consequences of intellectual property and the potential outcome (or rather, the possible consequences) if it were abolished. Such concerns are only a side note and are sufficiently dealt with in other books, for example, in “ Against Intellectual Monopoly ” ^[ 7 ] . Ignoring them, however, is only logical, because this is an investigation of ethically justifiable action from a theoretical perspective. If the theoretical argument suggests that EC is ethically unacceptable, concerns about how society might function without it are essentially a “ practical problem ” ^[ 8 ] , which we do not wish to dwell on here.

Suffice it to say: Libertarians have virtually unlimited faith in free markets; which means nothing other than that they trust that people who behave ethically and cooperate voluntarily with one another will find solutions to their problems. In fact, such solutions are already emerging today. If we consider, for example, the problem of financing authors, we can already see with today’s copyright law that artists hardly earn any money from the actual sale of their work after publication. Alternative sources of income, such as concert performances, compensate for this. The essential problem arising from digital media is that financing a work after publication is impractical, since consumers can access the work through free sources. If two groups, in this case those who create intellectual creations and those who use them, have a common interest in the production of art or innovations, a libertarian expects solutions to develop in a free market. These solutions would have to enable an artist, for example, to be fairly compensated before their work is published. In fact, such a solution can already be observed today with the example of ” Kickstarter ” ^[ 9 ] . Here, artists can present their projects along with the necessary budget. Anyone who wants to see a project realized (and receive one of the bonuses offered by the artist) is free to support the project financially. It is nothing other than a modern version and a revival of the principle of patronage, widespread before copyright law.

Before we come to Kinsella’s criticism of intellectual property, however, it is essential to have a sound understanding of the ethical foundations of tangible property. Property, especially at the political level, is often viewed as something relative. If, for example, the expropriation of a landowner based on the supposedly more important economic interests (one would like to assume: based on political contacts) of a third party or for the undefined “ good of the common good ” and with reference to legislation ^[ 10 ] is even remotely legitimate, it will be difficult to follow Kinsella’s argument. Property is defined precisely by who has the right to dispose of a certain object. If others claim this right for themselves, they are by definition claiming to be co-owners. Since the ultimate power over this property lies with the legislature, one could even claim that the “ owner ” is not an owner at all, but that the legislature is the owner and the person they call the owner merely has a right of use, which can be withdrawn at any time. Before we proceed to examine the extension of property rights to non-material things, we must clarify whether this practice is ethically justifiable. Hans-Herman Hoppe provides a wonderful argument—one could even say a proof—on this topic in the form of his article “ Private Property: Foundations of Ethics and Economics ” ^[ 11 ] .

In this article, Hoppe demonstrates in a rigorous and uncompromising manner how essential property rights are for ethical action. It also becomes clear that the subsequent criticism of the right to property is merely one of many examples of the consistent application of property rights. It confirms Rothbard’s statement: ” There are no rights but property rights .” ^[ 12 ] Property is therefore central to understanding the libertarian view of intellectual property in Kinsella’s article. My hope, therefore, is not only that this book brings a fundamental critique of the right to property from the Anglo-American world to Germany that is very relevant today, but also that it encourages a closer look at libertarianism.

Manuel Barkhau