Property rights are not derived from anything. They don’t have a source. They are norms, quite useful norms, and norms that can be justified–but hardly need to be as most people already accept their utility and justification. Who that uses property they homesteaded, or purchased…
— Stephan Kinsella (@NSKinsella) May 31, 2025
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Property rights are not derived from anything. They don’t have a “source.” This is legal positivist thinking.1 They are norms, quite useful norms, and norms that can be justified–but hardly need to be as most people already accept their utility and justification. Who that uses property they homesteaded, or purchased from a previous owner, and wants to keep it and claims ownership better than that of outsiders, denies this? Who?
It does not matter that you mutter on that this is because of a “right to the product of one’s mind,” or other religious blah blah blah. It doens’t matter why you believe it. You do. You and I and everyone else already agree that property in material things is determined by two principles: original appropriation, and contractual transfer. That’s it.
So here is what you are missing. The thing is you and I do not disagree that there ought to be property rights in material resources that were previously unowned. Since those things had to be first used at some point, and since the first user has a better claim than latecomers, and against anyone else other than someone he gave it to by contract–we both already agree on how we can identify who the owner is of any disputed material resource. No one disagrees on this. Not me, not you, not advocates of IP. If I own a house or factory or car, because I found the material and produced a house or car, or someone else did and I purchased it by contract, then everyone agrees that I am the owner. Everyone agrees that if someone else claims ownership of my property, they lose. In general if two people claim ownership of the same resource, we decide who wins by asking: who found it; who bought it from a previous owner. That’s it.
No one who thinks about this for a few seconds disagrees with this.
Your mistake is you think we can have property rights to material resources, determined this way—and intellectual property rights too. You think this because you have not thought deeply about the nature of property rights, and you do not fully understand what IP rights are and how they operate, so you do not understand that this is impossible.
You are very much like the economic illiterate who does not understand why the government doesn’t just print more money to help the poor. He doesn’t get that this dilutes the purchasing power of existing money so only redistributes wealth; it does not create wealth–because money is not wealth. He doesn’t get that you don’t get something for nothing.
You are very much like the welfare statist who believes in negative rights like the right not to be murdered or stolen from and the positive rights to food, housing, education. He does not understand nothing is for free. He does not understand that positive rights come at the expense of negative rights. You cannot have both.
I am sure you understand these last two fallacies. But you are just like them. Unfortunately because of your crude and incomplete understanding of property rights, and your inadequate understanding of the IP rights you sadly support, you believe there can be property rights in material things and property rights in immaterial things namely ideas or information patterns—logos, in Neil Schulman’s nearly mystical, italicized term. You fail to understand that all rights are property rights and all rights are enforced by physical force and can only be applied to material things. As a libertarian you understand why force is a fundamental concept and why we oppose the initiation of force; you understand that all laws are ultimately enforced by the state’s goods bullets. Yet you cannot see that the same is true of IP rights: they are not really “rights” to ideas, since ideas cannot be owned and force cannot be applied to them; this is because they are different types of things from scarce resources, and this is mirrored in their different but important role in action: humans employ scarce material resources when acting, but that action is guided by knowledge and ideas, which is non-scarce. So an IP law is not a right to an idea though it is disguised that way, just like positive welfare rights are disguised as theft by calling them positive rights; just like the inflationary nature of money printing is obscured because the aid the recipients receive is visible but the spread out loss of purchasing power everyone else suffered is not apparent. What an IP law is, is a nonconsensual negative easement or servitude over someone else’s property. It is like monetary inflation: it results in a redistribution of property rights. Now the owner of a factory subject to a patent, or a printing press subject to a copyright, is forced to have a co-owner: the owner of the patent or copyright. The IP right is based on an implicit third property allocation principle that undermines the first two in the same way that positive rights undermine negative rights and that monetary inflation redistributes wealth.
Before IP, the two principles we refer to to determine the owner of a resources is: who had it first (original appropriation); and who transferred it by contract. There is a third case which can be viewed as special case of the second: if you commit trespass (use someone’s resource without the owner’s consent; invasion) you owe rectification to the victim. But now you add another principle: or if someone else thought of a way to use their own property then he can now exercise a veto rights over your own uses of your property, even though you did not consent to be burdened by this negative servitude: this is a nonconsensual negative servitude. It redistributes wealth from the owner to the IP holder; it is a form of theft. https://c4sif.org/2011/06/intellectual-property-rights-as-negative-servitudes/…
That you people are unable to see this is a testament to how deep the IP mindworm has spread ever since Locke’s mistake has contaminated everything. https://c4sif.org/2013/04/lockes-big-mistake-how-the-labor-theory-of-property-ruined-political-theory-transcript/… and This is discussed in my book Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), ch. 14, Part III.B; ch. 15, Part IV.C, et pass. https://stephankinsella.com/lffs/, which is written very clearly, plainly, for people just like you. Well, for other people, people who know how to read and are interested in learning, people who care more about truth and justice and liberty than their little egos and impatience at thinking too hard.
After I’ve laid all this out so plainly for libertarians who should know better–you people have no excuse anymore. Any so-called libertarian who expresses a pro-IP opinion instead of just remaining silent if they are too confused or stupid to sort it out is a disgrace and willingly advocating evil ideas. Shame on you. Shame on you all.
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