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: Penner on Intellectual Property, Monopolies, and Property: recognizes IP rights as protected by law are “not rights in personam, but rights against the whole world“—i.e., in rem rights.

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.
• Stephan Kinsella, “Law and Intellectual Property in a Stateless Society,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), Part III.I n.75:
  • “Mackaay unpersuasively argues that something resembling patent and copyright can emerge through private legal arrangement like trade secret and contractual structures, a “simulated property right,” which the legislator can then “complement” by “by adding the possibility of systematically ensuring exclusivity against third parties.” Ejan Mackaay, “Economic Incentives in Markets for Information and Innovation,” Harv. J. L. & Pub. Pol’y 13, no. 3 (Summer 1990): 867–910, p. 904; see also p. 899–901 et pass. Or, as summarized by Dale Nance, Mackaay sees IP rights: ‘… as representing a compromise that appears relatively warranted because they do not have the kind of features associated with the worst kinds of governmental meddling in the economy, and because their functional equivalents could, to a considerable extent but perhaps at greater cost, be achieved by carefully protected trade secrets combined with contractually imposed restrictions on copying by buyers or licensees of the information in question. In other words, he sees patents and copyrights as little more troublesome than state-provided form contracts.’ Dale A. Nance, “Foreword: Owning Ideas,” Harv. J. L. & Pub. Pol’y 13, no. 3 (Summer 1990): 757–74, p. 770
  • “Easterbrook makes a similar, and similarly untenable, claim, when he writes: “[I]n the end intellectual property may be understood as the result of voluntary undertakings, which the government simply enforces.” Frank H. Easterbrook, “Intellectual Property Is Still Property,” Harv. J. L. & Pub. Pol’y 13, no. 1 (Winter 1990): 108–118, p. 114.

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