IP as Contract

[From my Webnote series]

See: Stephan Kinsella, “Law and Intellectual Property in a Stateless Society,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), Part III.C.

Also:

• Against Intellectual Property, the section “Contract vs. Reserved Rights” and the subsections “The Limits of Contract” and “Contract vs. Reserved Rights”
• Wendy McElroy’s perceptive comments on the “copyright by contract” approach in her note to me reprinted in McElroy: “On the Subject of Intellectual Property” (1981)
• You can’t oppose IP without opposing contract; IP simply flows from contracts
• See also my 2011 Mises Academy course on IP, Lecture 6 (in particular, see slide 12; or see the transcript there and search for mousetrap; or go to 45:10 in the video )
  • See also Leonard Peikoff on IP here (go to 5:41). Peikoff thinks that whether reading books in a library or buying a used book violates the copyright of the author depends on the contract of sale. Thus he appears to be making an argument similar to Rothbard who thought you could have some type of contractual copyright (in inventions, oddly) system. He doesn’t seem to understand Rand’s own argument for IP, which is not based on contract.
• See also Wendy McElroy, The Last Gasp of Copyright Dies Within Me
• Also explained in detail here: Bryan Caplan’s view on Slavery Contracts and IP
  • See also Richard O. Hammer: Intellectual Property Rights Viewed As Contracts
  • Also discussed in the transcripts and podcasts here: KOL326 | Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 1: Under the Influence…; KOL234 | Vin Armani Show: Live from London: Kinsella vs. Craig Wright on Intellectual Property; KOL174 | “Rethinking Intellectual Property: History, Theory, and Economics: Lecture 3: Examining the Utilitarian Case for IP” (Mises Academy, 2011); KOL076 | IP Debate with Chris LeRoux; and KOL 038 | Debate with Robert Wenzel on Intellectual Property
• See also Adam Mossoff, a pro-IP Objectivist law professor: “one can try to create through contracts some of the protections provided by the concept of an IP right, but it is impossible to create all of them” (emphasis added). “Intellectual Property,” in The Routledge Companion to Libertarianism (Matt Zwolinski & Benjamin Ferguson, eds., 2022), at p. 482, n.2.
• Some thinkers, like the Tannehills¹ and LeFevre,² also seem to think some form of IP can be arrived at privately, by contract or arbitration and so on.

1. Classical Liberals, Libertarians, Anarchists and Others on Intellectual Property [↩]
2. LeFevre on Intellectual Property and the “Ownership of Intangibles” [↩]