Lacalle on China and IP “Theft”

Daniel Lacalle on Twitter: “China bans US exports ans businesses and steal intelectual property.” I have no doubt that most of Lacalle’s criticisms of China are true. But not this one.

Lacalle seems to be unaware that mis-named and dishonestly-named “intellectual property” (IP)¹ is actually antithetical, hostile, and contrary to free markets, capitalism, private property, and so on, and that Austrians and libertarians—especially Austro-libertarians, and especially those affiliated with the Mises Institute (see this recent Tweet by the Mises Bookstore, for example)—by and large now recognize this.² IP is socialistic and destructive, and downright evil to the core. We would never endorse the institution of IP. As I wrote previously,

It is obscene to undermine the glorious operation of the market in producing wealth and abundance by imposing artificial scarcity on human knowledge and learning (see “IP and Artificial Scarcity“). Learning, emulation, and information are good. It is good that information can be reproduced, retained, spread, and taught and learned and communicated so easily. Granted, we cannot say that it is bad that the world of physical resources is one of scarcity — this is the way reality is, after all — but it is certainly a challenge, and it makes life a struggle. It is suicidal and foolish to try to hamper one of our most important tools — learning, emulation, knowledge — by imposing scarcity on it. Intellectual property is theft. Intellectual property is statism. Intellectual property is death. Give us intellectual freedom instead!

China is guilty of many things but it does not “steal” IP, it unfortunately protects IP—not surprising, given that it’s a backwards, socialist hellhole which is inimical to human freedom and progress and private property rights, so it’s the very place you would expect to adopt socialistic, evil IP rights.³ and even if it did flout the world IP order and American big pharma/Hollywood/music industry IP imperialism it would be a good thing (see various posts on IP Imperialism).

I have explained this repeatedly. China does not “steal” IP. This is ridiculous pro-western/US IP-socialist nonsense. In addition, it just legally and factually incorrect to refer to copying or infringing artificial, statist, fascist IP rights are stealing (or as “property”!).¹ IP is infringed, not “stolen.” As I wrote previously:⁴

In the U.S. Supreme Court case Dowling vs United States, the Supreme Court explicitly valued whether copies could be regarded as stolen goods under the law, and held that they could not.

Instead, “interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: ‘[…] an infringer of the copyright.’”

See also Mark A. Lemley, “Romantic Authorship and the Rhetoric of Property,”  Texas Law Review, Vol. 75 (1997): p. 873, 897:  “Intellectual property cases and arguments are replete with references to infringement as “theft,” which it assuredly is not, at least in the traditional meaning of that word.” Also quoted in Michael H. Davis, Patent Politics, n. 147.

See also See Dale A. Nance, “Foreword: Owning Ideas,” Harv. J. L. & Pub. Pol’y 13, no. 3 (Summer 1990) 757–74, pp. 757–58: “intellectual property may be defined as embracing rights to novel ideas as contained in tangible products of cognitive effort. More narrowly, these rights are such that their violation does not necessarily entail physical misappropriation or fraudulent misuse of such products, or any breach of contract or fiduciary duty. Consequently, the special term “infringement” is used to refer to such violations.”

So copying is not “theft,” crime, or any kind of offense, and would not and should not be regarded as such on a free market or in a just society that respect property rights. And even if the state prohibits copying and thuggishly protects favored cronies with artificial, protectionist patent and copyright privileges and grants, it is still not “theft,” not even in the law–it is “infringement“—a made up “crime” but it’s still not “taking,” “theft,” “piracy,” “stealing.” Nor is it fraud, plagiarism,⁵ cheating, and so on.⁶ All these are confused and dishonest pejorative descriptions of what is on a free market totally legitimate activity: copying, emulating, competing (gasp!),⁷ innovating, and so on. Free market economists, especially Austrians and libertarians, should know better.

I have explained this over and over. See, e.g., More of the “China is Stealing Our IP” nonsense, All-In Podcast Concern over China and IP “Theft”, Libertarian and IP Answer Man: Does China have “more fierce” competition because of weaker IP law?, “To Steal a Book is an Elegant Offense”—Chinese saying, and other posts under the tag China-IP-theft.

1. “Intellectual Properganda.” [↩] [↩]
2. See Stephan Kinsella, “The Death Throes of Pro-IP Libertarianism,” in You Can’t Own Ideas: Essays on Intellectual Property (Houston, Texas: Papinian Press, 2023); also idem, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), Part IV; idem, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023); idem, Against Intellectual Property. [↩]
3. Hello! You’ve Been Referred Here Because You’re Wrong About Intellectual Property, the section “IP can’t be socialistic, since the Soviet Union didn’t recognize IP law.” [↩]
4. Stop calling patent and copyright “property”; stop calling copying “theft” and “piracy” (Jan. 9, 2012). [↩]
5. Defamation law is also a form of IP and is unjust, by the way. Ahem. Kinsella, “Defamation as a Type of Intellectual Property,” in A Life in Liberty: Liber Amicorum in Honor of Hans-Hermann Hoppe, edited by Jörg Guido Hülsmann & Stephan Kinsella (Houston, Texas: Papinian Press, 2024).  [↩]
6. “If you oppose IP you support plagiarism; copying others is fraud or contract breach.”  [↩]
7. “Intellectual Property Advocates Hate Competition.” [↩]