IP is Not “Not Property”

by Stephan Kinsella on April 23, 2025

As I have pointed out many times, the argument against intellectual property rights is not that IP rights, or IP law, or IP itself,¹ is “not property,” as many people put it, even my fellow opponents of IP.² The question is not: are ideas (information, patterns, etc.) property or not. It’s whether IP laws are just or compatible with the fundamental or foundational libertarian principles of justice, of property rights.

And they are not. As I pointed out previously,

every political theory advances some theory of property. None of the various forms of socialism deny property rights per se; each system will specify an owner for each contestable scarce resource. If the state nationalizes an industry, it is asserting ownership of those means of production. If the state taxes you, it is implicitly asserting ownership of the funds taken. If my land is transferred to a private developer by eminent domain statutes, the developer is now the owner. If the law allows a recipient of racial discrimination to sue his employer for a sum of money, he is the owner of the money.

Protection of and respect for property rights is thus not unique to libertarianism. What is distinctive about libertarianism is its particular property assignment rules: that is, the rules that determine who owns each contestable resource.³

Libertarianism’s property assignment rules are a more consistent version of the legal rules long recognized in the private law of the Roman law and English common law.⁴ In the libertarian view,

property rights are assigned in accordance with whichever actor has the best link or connection to the resource. … In Western private law and in libertarianism, which is a far more consistent working out of this, there are basically two types of links—the type of link applied to your body, which is a unique scarce resource; and the type of link applied to external resources in the world, which were previously unowned scarce resources. For the body, the link is a self-ownership link. You own your body, and the reason is because of your direct control over it ….

And then for scarce resources in the world, they’re always owned first by someone first using them from their unowned state. That’s called homesteading or original appropriation [occupation].⁵ And then ownership can be transferred for two reasons: contractually—that’s a voluntary transfer of your ownership title of the resource to someone else, either by sale or by gift; or for purposes of rectification, which can be seen as a subset of contract because it’s also a transfer of title from an owner to someone, but it’s because the owner committed a tort against the victim and thus gave him a right to recover some of the aggressor’s property as damages.⁶

So original appropriation, contract, and rectification are basically the only three principles to determine ownership of external resources in case of a dispute. So these four principles—body-ownership due to direct control, with an exception made for forfeiture of this right due to committing aggression plus the three principles for external resources—are how we determine the best link, and this is the core of all property rights, and of all just law. A developed body of private law, to be just, has to be based on these core principles, and just entails working out the details as the law develops.⁷

As Hoppe writes,

But who owns what scarce resource as his private property and who does not? First: Each person owns his physical body that only he and no one else controls directly (I can control your body only in-directly, by first directly controlling my body, and vice versa) and that only he directly controls also in particular when discussing and arguing the question at hand.… [A]s for scarce resources that can be controlled only indirectly (that must be appropriated with our own nature-given, i.e., un-appropriated, body): Exclusive control (property) is acquired by and assigned to that person, who appropriated the resource in question first or who acquired it through voluntary (conflict-free) exchange from its previous owner. For only the first appropriator of a resource (and all later owners connected to him through a chain of voluntary exchanges) can possibly acquire and gain control over it without conflict, i.e., peacefully.⁸

These core property rights principles are what distinguishes all other systems, which are thus to one degree or another socialistic.

And every socialist system, and every law not based on these core principles, including IP law, always ends up deviating from these core private property law principles in one way or another.⁹

In the case of patent and copyright IP rights, they are nonconsensual negative easements over resources owned by others, and are thus socialistic violations of property rights.¹⁰

Further Reading

These are all distinct concepts. See Kinsella, “Intellectual Property versus Intellectual Property Rights.” Just as mind is distinct from brain, person or self is distinct from body, and a property right in a thing is distinct from the thing itself. On this latter point, see “What Libertarianism Is,” in Legal Foundations of a Free Society [LFFS] (Houston, Texas: Papinian Press, 2023) [LFFS]; [*** to be done: NEW WEBNOTE ON PROPERTY, PROPERTY RIGHTS AND OWNERSHIP, AND THINGS SUBJECT TO PROPERTY RIGHTS]. [↩]
As an example, see Masnick: Creation Does Not Equal Ownership, where some Objectivist in the comments says “This is the Achilles Heel of the anti-IP claim that only stuff and never ideas can be property.” For other examples, see “Libertarian and IP Answer Man: Artificial Intelligence and IP”, “Intellectual Property versus Intellectual Property Rights,” Speaking at APEE IP Panel in Guatemala (re paper by the anti-IP Lucca Tanzillo Dos Santos, “Ideas Are Not Property: A Cross-Country Analysis of Institutions and Innovation”), Morin on Patents (2013), Munger on Property Rights in Words and Information. [↩]
Stephan Kinsella, “Law and Intellectual Property in a Stateless Society,” in LFFS, ch. 14, Part II.A. [↩]
See Kinsella, “Preface,” in LFFS (“The developed legal system of an advanced, free society is the detailed working out of the implications and applications of these basic principles to various practical and recurring situations in human interactions.”) and Kinsella, “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” in LFFS, the section “Property Rights and Objective Link,” text at n.14 and at n.16. [↩]
See Richard Epstein’s argument that the Roman idea of occupatio—acquisition of title to an unowned thing (like land) by simply occupying it—is superior to the Lockean idea of labor-mixing. See Stephan Kinsella, “Survivors of polygamist sect fence off 1,000 acres of US Forest Service land in southwestern Colorado,” StephanKinsella.com (Oct. 12, 2024). In my view, the general category is original appropriation, with occupation or homesteading (labor-mixing; transformation) being either cases of this or ways of understanding it. Original appropriation is also somewhat synonymous with embordering. [↩]
Ownership can also be lost by abandonment instead of by transfer (gift or sale, or rectification transfer, to another). See Kinsella, “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” in LFFS, text at n.41. See also Kinsella, “What Libertarianism Is,” App. II at n.56, et pass.; “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” in LFFS, section “Contract, Selling and Ownership: External Scarce Resources,” at n.28; Kinsella, “Inability to Abandon Property in the Civil Law,” StephanKinsella.com (Aug. 3 2009) and “Homesteading, Abandonment, and Unowned Land in the Civil Law,” StephanKinsella.com (Aug. 28, 2021). [↩]
Kinsella, “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” in the section “Property Rights and Objective Link.” See also idem, “Law and Intellectual Property in a Stateless Society,” Parts II.A-II.D; Kinsella, “What Libertarianism Is,” LFFS, text at n.8 et seq.; idem, “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). [↩]
Hans-Hermann Hoppe, “A Realistic Libertarianism,” LewRockwell.com (Sept. 30, 2013). [↩]
Kinsella, “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” in LFFS, in the section “Property Rights and Objective Link.” [↩]
Intellectual Property Rights as Negative Servitudes. [↩]