Penner on Intellectual Property, Monopolies, and Property

I found some interesting commentary in James E. Penner, The Idea of Property in Law (Oxford: Oxford University Press, 1997). (Ironically, this treatise is quoted favorably by pro-IP libertarian law professor Eric R. Claeys, Natural Property Rights (Cambridge U. Press, 2025), §4.2, p. 77. ) I will provide some quotes and then some takeaways. I have omitted footnotes; note the bolded text in particular:

between owner and other which provide the issue of the exchange. The appeal of Hohfeld’s view lies in his observation that rights, and we should say norms in general, only operate between persons.41 Reasons influence the behaviour of people, not things. Therefore we cannot have norms which operate on things as if a thing could be answerable at law. Thus Hohfeld’s translation of rights in rem into bundles of rights in personam, however flawed, seemed a natural way of realizing the point that rights bind people, not things. [p. 30]

…

The question of what ‘things’ are proper items of property is a very difficult one, which will be tackled in Chapters 5 and 6. It is enough to say two things here. One, property may be tangible, like material objects, or intangible, like a copyright. Two, as a first approximation, what distinguishes things that can be objects of property from things that cannot turns on whether the thing in question is a (legally recognized) person, or is significantly connected to the individual personality of a person, like one’s kidneys are; these things cannot be property, but everything else can. [p. 50]

…

Once these versions of the right to use are laid out, however, it is apparent that they can be framed as corresponding versions of rights to exclude having the same normative effect, so long as we remember that these rights are employed in a social setting. If the link between actual use and exclusion is the factual premise that using something characteristically requires that (at least some) others be excluded from it, the link between rights to exclude and use is that all rightful exclusions can be broadly characterized as serving the interest or purpose of putting a thing to use. [pp. 69–70]

… This can be expressed as follows, in what I shall call the exclusion thesis: the right to property is a right to exclude others from things which is grounded by the interest we have in the use of things. [p. 71]

[pp.  118–120] These authors’ [early twentieth-century writers] views on intellectual property are similarly stimulating: not one of them embraces the idiotic fiction that intellectual property constitutes property in ideas (patents) or expressions (copyright). They see it for what it is, a certain class of rights to monopolies. Elphinstone doubts that intellectual property rights are choses in action, for they are not rights in personam, but rights against the whole world; until someone violates the right, there is no right in action, whereas in the case of a debt its very existence depends upon such a right.40 Sweet regards intellectual property as incorporeal property, but not truly choses in action for ‘their essential quality is that they are permanent property—not necessarily perpetual, but wholly different from such transient things as debts and other rights of action’; however, if one must choose to treat them as either choses in possession or choses in action, Sweet prefers the latter alternative, at least in the context of bankruptcy.41 Brodhurst goes so far as to treat them as choses in possession on the basis that the benefit that one receives by having copyright is not secured by action; one enjoys the benefit of it simply by having it, by one’s ‘constructive possession’ of it: if one’s copyright is infringed, one then obtains a right in action for what amounts to a trespass.42 Each of them is in his own way right.

Intellectual property rights are akin to choses in action because they are abstract legal rights, with no direct connection to any thing, tangible or intangible. But they are not claims to receive some share or amount of the property of others, as choses in action typically are. They are rights directly to a practice of exclusion, as directly as are property rights in chattels or land, correlating to duties in rem by which all subjects of the legal system have a negative duty not to do something. The duty is not one to refrain from interfering with material objects, but to refrain from working an invention or copying an original work or from representing one’s business or its products by a certain name or symbol.

While patents are not property rights in ideas,43 nor copyrights property rights in expressions,44 nor again trade marks property rights in symbols or words, in general it does no harm to speak of rights in ideas, or in manuscripts, or in marks, any more than it does to refer to one’s rights in one’s labour. And in the same way that labour forms part of one’s life experience, the development of an idea or the creation of an artistic work can never be separated from the inventor or artist; it remains the inventor’s or artist’s forever. The light bulb is Edison’s invention whoever makes use of it, and Bleak House is Dickens’s whoever reads it. Whatever rights the inventor or the artist has, when we start speaking of property rights in ideas and artistic works, things begin to lose sense. A true property right in an idea or an expression would constitute a right of exclusion from that idea or that expression itself. Subjects of the law would have a duty not to read about or understand an invention or take in the expression in a book or a painting¹ (a funny notion since patents are published when granted, and a copyright is a right exclusively to disseminate a work). Intellectual property rights are monopolies defined in terms of ideas and expressions and symbols.

Treating property in patents and copyrights as property rights in monopolies that are defined in terms of ideas and expressions, rather than as property rights in the ideas and expressions themselves, may appear to be a slippery slope which would lead to all property rights being defined as rights to monopolies of some kind. As we have seen, the right to a piece of land is not completely exclusive. Passers-by may gain value by looking at one’s garden. Why, then, do we not say that the landowner has a monopoly on various uses defined in reference to the land, of course, but no direct property right in the land itself?² Neither the land owner nor the patent holder has a complete right to all facets of use or value that the thing, the land or the idea, provides.³ The difference, however, lies in the characterization of the landowner’s and patent-holder’s respective use-rights. The landowner’s use-rights are essentially indefinable, comprising every possible use of land. One cannot draw up an exhaustive list of them, and this is true even if others like the passer-by may gain some value from the land. The exact opposite is true of the patent-holder’s use-rights. The patent is an exclusive right to a particular use of the invention or idea, that is, working it to produce goods for sale in the market.⁴ But this is only one of a limitless number of ways in which an idea may be ‘used’; one can study it, use it to illustrate scientific principles, use it as the basis for further inventive endeavours, and so on. That the market use of the idea is often the most valuable use in economic terms (though clearly not always, and probably rarely as a proportion of the patents that are actually granted), that does not alter the fact that it is one use only. A patent is like the ‘lease’ to extract oil mentioned at the end of the last chapter; in the same way that the lease was not really a property right in the land, the patent is not a property right in the idea or invention.

…

[p. 105–108]

5

The Objects of Property: The Separability Thesis

If property is a right to things, we must provide some characterization of the things that can be property. We can start by noticing that there appears to be a significant distinction between the uses we feel justified in making of ‘things’ which lack personality, whether objects, space, ideas, and even particular concretely specified relations between people, such as debts, and ‘things’ which do have or significantly involve personality, such as people, their actions, and their ongoing, dynamic relations with other people. If the distinction is of consequence to us, then one understandably expects it to be reflected in our concepts. ‘Property’ refers to a particular human practice, the practice of dealing with things, which stands in contrast to our practices of dealing with other people and dealing with what I shall call our ‘personality-rich’ relationships with other people. This can be further explained by examining the nature of things which can be objects of property, which I outline through a second thesis about the character of property, the ‘separability thesis’. In the next chapter I return to the exclusion thesis, bringing the objects of property and the duty of non-interference together.

Objects of Property

At this stage, it is worthwhile giving a brief outline of what the law treats as property in conventional terms. Most persons familiar with philosophical treatises on property are never faced with the task of thinking about why some things are objects of property and others are not. Typically, philosophical works purporting to concern property start with a kind of justifiable evasion of this task. Here is Waldron’s, which is laudable just for mentioning choses in action, a type of property much neglected by legal theorists and philosophers:

I have defined property in terms of material resources, that is, resources like minerals, forests, water, land, as well as manufactured objects of all sorts. But sometimes we talk about objects of property which are not corporeal: intellectual property in ideas and inventions, reputations, stocks and shares, choses in action, even positions of employment. As we say, this proliferation of different kinds of property object is one of the main reasons why jurists have despaired of giving a precise definition of ownership. I think there are good reasons for discussing property in material resources first before grappling with the complexities of incorporeal property.1

Waldron defends this with essentially two arguments: first, that the distribution of material resources is more basic, and thus universal, and so one suspects that incorporeal property arises, perhaps by analogy with property in material resources, only once corporeal property has been sorted out conceptually;2 secondly, that, even in modern industrial societies, the ownership of incorporeal property can be regarded not as a right to some abstract object of property, but rather as a complex right (mediated via a complex private property system) to those same old material resources, which are ultimately the basis of wealth even now.3 This move is justifiable given the fish Waldron wishes to fry; he is interested in examining the justice of a right to an unequal share of social wealth; ‘property’ is just a shorthand for that. 4

He therefore has no reason to distinguish between those economic advantages which are actually property and those which are not. My rights under my present contract of employment matter much more to my economic position than do any of my property rights (alas); call them property if you will, but that is simply a stipulated definition which attempts to fix someone’s right to his economic situation and treat it as analogous to property. For most philosophers the actual objects of property are uninteresting, and the real meat of the question about property is how we can justify unequal holdings. As I have said, one of the themes of this work is that understanding property does not enlighten one on this question, any more than understanding what beauty is will allow one to justify why some people are beautiful and others ugly. What is essential to understand, and fascinating to boot, is why we think it appropriate to characterize some things in the world as beautiful or ugly, but not others. I shall charitably trust that the reader who has stayed with me so far is willing to take his property neat, unwatered by everything else that commonly adulterates it in the realm of philosophy.5

The menagerie can be categorized in different ways, and the divisions of English law are instructive.6 Its most basic division is between real and

[n.3 Ibid. 37. Waldron regards the insistence that the nature of incorporeal property be addressed stems from ‘a desire to preserve a link between the concept of property and “economic reality”.’ The appropriate desire is to preserve a link between property and legal and moral reality. It is significant from the normative, i.e. legal or moral, point of view that patents are regarded as property. See my discussion of the distributive character of property in Ch. 10.]

personal property, that is, into land and everything else. The use of the word ‘real’ originated in medieval law and described the legal remedies the system provided: the owner of a freehold interest in land could get the land itself back from a dispossessor-so the remedy provided the owner with the actual or real thing back again. 7 The owner of a chattel, that is any moveable corporeal thing like a cow (which is what the word ‘chattel’ originally meant), benefited from duties in rem prohibiting interference, but the remedy at common law was merely a payment in damages; the owner did not get the actual thing back again. Originally, one could not regain possession of leasehold interests in land, so8 leases counted as personal property, under the oxymoronic nomenclature of ‘chattels real’. Thus the legal analysis of the division between land and everything else was originally based on a distinction between the kinds of legal remedies available to the owner, rather than on any defined characteristics of the things themselves.9 While leaseholds now count as real property, the situation regarding the right to repossession of the thing itself reflects to this day the real and personal property division. If one has been wrongly excluded from the occupation of land, one can regain occupation by legal action, but if one sues someone who has wrongfully dispossessed one of a chattel, in general the remedy is money damages.

Over the centuries, there has been a great growth in forms of personal property, and so new divisions have arisen. The most important one is that between tangible and intangible property, but there are also interesting combinations of both. This distinction is sometimes framed as the difference between ‘choses in possession’ and ‘choses in action’: things one owns because they can be physically held, and those which one owns only because one has a right to prosecute a legal relation by bringing a court action against some other person or persons. 1° Choses in action, therefore, unlike property rights in land or chattels, are not rights in rem; they are rights in personam held against specifiable individuals, which should appear surprising at first glance. How they acquire a property-like character despite the fact that they are in essence personal rights will be discussed in detail in the next chapter. Although the division between choses in possession and choses in action applies to personal property only, we can treat land as a chose in possession as well, as a material thing to which one can maintain a physical relation. ‘Occupation’ captures this relation better than ‘possession’, though possession is the term of art in English law.11 Some choses in action are ‘pure’ intangibles, like debts, and some are ‘documentary’, embodied in paper, like cheques. Pure choses in action are, roughly, those legal rights in personam to pay a certain sum of money or deliver specified property, which the rightholder can transfer to someone else by ‘assigning’ them. The requirement to do so in writing does not mean that the right, say to the payment of a debt, becomes attached to the writing. The writing is essentially evidence of the assignment, even if there is a legal rule that only written assignments are valid. A ‘formal’ requirement of this kind exists so that the difficulties of proving oral assignments are avoided, and perhaps also out of the fear of allowing individuals to bind themselves legally by making casual oral assignments. The debt remains a purely intangible, abstract legal relation. Documentary intangibles are legal rights in personam ‘reified’ or embodied in paper, like a cheque or promissory note which reifies a right to the payment of money, or like a document of title such as a bill of lading which reifies a right to the receipt of chattels. 12 The owner can transfer the rights embodied in these documents by indorsing the documents and delivering (i.e. transferring possession of) them to the recipient. They thus partake of the nature of both chattels and choses in action.13

Some takeaways from the above. Let me first note that this is an excellent example of my observation made many times: that it’s hard to find thinkers who are both deeply learned in a field an also deeply learned scholars. Usually you find a libertarian who is solid on theory but weaker on legal theory, and so on; or a mainstream thinker who is a deep expert but suffers from mainstream political and economics assumptions a libertarian would not make. To make progress that is both sound and radical and also does not sound crankish and uninformed of the relevant mainstream literature, one must read both and take the good from each.⁵ Penner is no libertarian and thus I would disagree with many of his other arguments and he no doubt with mine, but he has many useful things to say about law nonetheless.

IP as Monopoly not Property Rights in Ideas

Modern advocates of IP often deny that it is a monopoly. Instead, it is just another type of property right.⁶ Penner readily acknowledges that IP rights are not property rights but monopoly grants: “not one of them [early twentieth-century authorities quoted previously] embraces the idiotic fiction that intellectual property constitutes property in ideas (patents) or expressions (copyright). They see it for what it is, a certain class of rights to monopolies.” (p.77) He also expresses a view on the issue of whether IP rights are ownership in ideas or not, something even IP advocates cannot agree on, such is their confusion on the foundations of this issue.⁷

IP Rights as In Rem Rights

He also recognizes IP rights as protected by law are “not rights in personam, but rights against the whole world“—i.e., in rem rights. I have pointed this out many times in explaining exactly why IP cannot be generated from contract, since contract is in personam and does not give rise to in rem rights. In other words, contract affects only the parties and not third parties, and so do not result in rem rights.⁸

Ownership of Labor as Figurative Only

Writes Penner:

While patents are not property rights in ideas,43 nor copyrights property rights in expressions,44 nor again trade marks property rights in symbols or words, in general it does no harm to speak of rights in ideas, or in manuscripts, or in marks, any more than it does to refer to one’s rights in one’s labour.

In other words, thought IP law does not really grant property rights in ideas, it’s harmless to speak of them figuratively in this way, just as people “refer to one’s rights in one’s labour.” In other words, there is really no property right in one’s labor; no one “owns” their labor; this is just figurative or metaphorical talk. As I and others have pointed out before in rebutting the idea that labor is produced by a person and therefore owned—which also underlyies the  libertarian creationism argument. As I noted previously:⁹

Some philosophers account for the right of occupation, by saying, that every one has a property in his own labour; and when he joins that labour to any thing, it gives him the property of the whole: But, 1. There are several kinds of occupation, where we cannot be said to join our labour to the object we acquire: As when we possess a meadow by grazing our cattle upon it. 2. This accounts for the matter by means of accession; which is taking a needless circuit. 3. We cannot be said to join our labour to any thing but in a figurative sense. Properly speaking, we only make an alteration on it by our labour. This forms a relation betwixt us and the object; and thence arises the property, according to the preceding principles.¹⁰

Likewise Kirzner, favorably quoting J.P. Day:

Day is sharply critical of Locke, denying that one can talk significantly of owning labor (in the sense of “working”). Laboring, Day contends, is an activity, “and although activities can be engaged in, performed or done, they cannot be owned.”¹¹

Things and Objects of Ownership

“If property is a right to things, we must provide some characterization of the things that can be property. … Most persons familiar with philosophical treatises on property are never faced with the task of thinking about why some things are objects of property and others are not.” Of note is Penner’s observation that not every “thing” that “exists,” or that can be conceptually identified or named, can be an object of property. This is an exceedingly important point that I have had to emphasize over and over in my writing. Now I do not agree with his view that one’s body is not the object of property rights, or that patent and copyright are objects of property. If he had a more libertarian or modern/sophisticated and less legal-positivistic understanding of these matters … but he doesn’t. The point is he recognizes some important things here.

In particular, he recognizes that just because there are some “things,” does not mean they can be (objects of) property, that is, subject to property rights. That is, ownable by human actors. This supports my view that IP advocates are wrong tfo assume that created “things” are owned by the “creator”; first you have to show that the created thing is the type of thing which can be owned! And ideas cannot! (Not that Penner would agree with me here.)

(On libertarian creationism, see Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Rights; Hayek’s “Fund of Experience”; on the unsupported assumption that anything that is created can be owned, that is, can be the object of property rights, and on why ideas cannot be owned, see … New Working Paper: Machan on IP;  The Structural Unity of Real and Intellectual Property; A Recurring Fallacy: “IP is a Purer Form of Property than Material Resources”.)

Objects of Property Rights vs. Property Rights and Ownership

I have pointed out the term “property” is better reserved to refer to the objects of property rights—”things” that can be owned.¹² Penner, likewise, seems to shy away, at least in some cases, from referring to things that are the object of property by the term “property,” but instead often uses wording such as: “The question of what ‘things’ are proper items of property” (instead of calling them “property,” they are “items of property”) and “what distinguishes things that can be objects of property from things that cannot” (the “things” are “objects of property” not themselves “property”).

IP and Incorporeal Rights as Negative Servitudes/Easements

I have noted previously that it is only scarce (conflictable) things that can be owned, that is, be the subject of property rights.¹³ Information or knowledge (recipes, in general), as a non-scarce, non-conflictable thing, cannot be owned; any law purporting to assign property rights in such things is just a disguised reassignment of property rights in existing conflictable resources (money, factories, printing presses, etc). As I note there:

All property rights are enforceable rights in material, scarce—conflictable—resources, the type of (causally efficacious) scarce means that human actors can possess and manipulate and employ to causally interfere in the world. It is not that assigning property rights in information or knowledge is wrong, but that it is impossible.42 Force cannot be applied to “ideas” or information, but only to scarce resources. Any IP right is just a disguised reassignment of property rights in existing scarce resources.

See also this insight, recognizing that so-called “incorporeal rights” are really about material objects, which are the actual objects of property rights:

the ownership of incorporeal property can be regarded not as a right to some abstract object of property, but rather as a complex right (mediated via a complex private property system) to those same old material resources, which are ultimately the basis of wealth even now.

Property as a Right to Exclude

In another passage, Penner writes: “The right to property is that normatively protected part of our interest in using property, and that part, i.e. that fraction of our uses of property, is determined by the extent to which others must exclude themselves from our property.” [p. 72] He is not perfectly consistent on this, but this supports the view that property rights at essence are not the right to use but the right to exclude others.¹⁴

See also this related comment:

Once these versions of the right to use are laid out, however, it is apparent that they can be framed as corresponding versions of rights to exclude having the same normative effect, so long as we remember that these rights are employed in a social setting. If the link between actual use and exclusion is the factual premise that using something characteristically requires that (at least some) others be excluded from it, the link between rights to exclude and use is that all rightful exclusions can be broadly characterized as serving the interest or purpose of putting a thing to use. [pp. 69–70]

This can be expressed as follows, in what I shall call the exclusion thesis: the right to property is a right to exclude others from things which is grounded by the interest we have in the use of things. [p. 71]

Related

• Kinsella, Legal Foundations of a Free Society [LFFS] (Houston, Texas: Papinian Press, 2023)
• IP isn’t about owning ideas; those who oppose ownership of ideas are commies.
• IP as Contract
• Hume on Intellectual Property and the Problematic “Labor” Metaphor
• Cordato and Kirzner on Intellectual Property.
• Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Rights; Hayek’s “Fund of Experience”
• Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors
• New Working Paper: Machan on IP;
• The Structural Unity of Real and Intellectual Property;
• A Recurring Fallacy: “IP is a Purer Form of Property than Material Resources”
• Intellectual Property Rights as Negative Servitudes
• Are Patents and Copyrights “Monopolies”?
• IP isn’t about owning ideas; those who oppose ownership of ideas are commies
• IP as Contract
• Erudite, Scholarly, and Unfailingly Polite: To Sean Gabb on the Occasion of his Sixtieth Birthday
• Hoppe on Property Rights in Physical Integrity vs Value
• Dominiak & Wysocki, “Libertarianism, Defense of Property, and Absolute Rights”

1. “And in Canada, when a grocery store in Canada mistakenly sold 14 copies of a new Harry Potter book a few days before its official release, a judge  “ordered customers not to talk about the book, copy it, sell it or even read it before it is officially released at 12:01 a.m. July 16″ (on both cases, see Atlas Hefts: The Sequel!).” Intellectual Property Rights as Negative Servitudes. [↩]
2. Because there are not property rights to the value of a thing but only to its physical integrity. Hoppe on Property Rights in Physical Integrity vs Value. The author is thus mistaken in thinking this implies property rights are “limited”; that “the right to a piece of land is not completely exclusive.” —SK [↩]
3. Property rights limit what actions others may perform, not other property rights. See Legal Foundations of a Free Society [LFFS], ch. 15, at n.75; my criticism of the strawman of “absolute property rights” in Dominiak & Wysocki, “Libertarianism, Defense of Property, and Absolute Rights”. [↩]
4. Not exactly. It’s not a right to use; it’s only a right to exclude, to prevent others. Using your own patented invention could still infringe another’s patent. —SK [↩]
5. See, e.g., Erudite, Scholarly, and Unfailingly Polite: To Sean Gabb on the Occasion of his Sixtieth Birthday:

   Sean [Gabb] is one of the few exceptions to a rule I’ve long observed: that it is generally rare to find a libertarian who is also deeply learned as a standard scholar, and it is also rare to find a deeply learned scholar who is solid on political and economic matters. Libertarians tend to have a more sound general perspective on politics, the state, and economics, but they are not usually the top recognized scholars in the field, for various reasons. And if you read some of the top-notch scholars in law, history, politics, and so on, they know their fields very well and deeply, but will invariably mangle something because their mainstream views on economics and the state contaminate their analysis. … On occasion, there are exceptions to this tendency—someone who is sound on political matters, i.e., a principled, radical libertarian, and also a serious scholar and deeply learned in his field.

   “Afterword,” in Hans-Hermann Hoppe, The Great Fiction: Property, Economy, Society, and the Politics of Decline (Laissez Faire Books, 2012) and “Afterword” [PDF] (Second Expanded Edition, Mises Institute, 2021):

   The book you hold in your hands—or that resides in memory bits on your digital device—provides a perfect illustration of the power of Austro-libertarian ideas. Brainpower and genius alone are not enough to provide sound social analysis. One also needs a coherent understanding of economics, in particular of Misesian-Austrian praxeology-based economics. And one needs a coherent and realistic understanding of politics and the state—which is to say, anti-state libertarianism.

   We all encounter and learn from brilliant thinkers, but there is often something missing. This is usually because they are insufficiently aware of the true predatorial nature of the state and the role it has played in the history of human society. Or there are, to put it kindly, gaps in their knowledge of economics. How many times have you read a brilliant thinker only to see them err on a crucial issue because of some mainstream economic or statist assumption? It is a frustrating experience.

   So genius is not enough. But it helps. After all, the problems and issues at hand are not easy. Great intellect, combined with a realistic, sober view of politics and economics, and with a passion for truth, can achieve great things: a clarifying vision of the nature of the institutions of society. Dr. Hoppe was perfectly placed by the currents of fate to become today’s leading libertarian social theorist, which is to say: today’s leading social theorist.

   Faculty Spotlight Interview: Stephan Kinsella:

   if you value peace, prosperity, and cooperation, and you have basic economic literacy, then you cannot help but favor a free market and private property. It’s hard to imagine someone who understand Austrian economics but would favor statist market intervention anyway; he would have to be some kind of weird Austrian genius misanthrope. And conversely, I think a working knowledge of the basics of free market and Austrian economics, and the Austrian dualist approach to methodology (its opposition to monism-scientism-empiricism) is crucial to a sound understanding of normative and political/legal theory.”).

   Kinsella, “Knowledge, Calculation, Conflict, and Law,” in LFFS, n.2 and accompanying text:

   many libertarian authors are economists or philosophers who are not sufficiently familiar with the workings of real legal systems; others are not completely or consistently libertarian in their approaches.2 Jurisprudence has yet to receive the attention it deserves from libertarians (and, one might say: vice-versa).

   … Richard Epstein has contributed enormously to libertarian and legal theory, but is not a completely consistent libertarian and is certainly not an anarcho-capitalist.

   Yuri N. Maltsev, “A Knight of Anarcho-Capitalism,” in Jörg Guido Hülsmann and Stephan Kinsella, eds., Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe (Mises Institute, 2009):

   Calm, logical and focused, Hoppe is a Sherlock Holmes of economics, in constant search for truth, rejecting any compromises and “sweet little lies” of “publicly certified intellectuals,” beltway libertarians, and neo-conservatives. A most learned scholar, he has called upon all advocates of liberty to be “intellectual anti-intellectuals,” as opposed to most “intellectuals” in the West, who have sold out to the state:

   The first and foremost task of the intellectual anti-intellectuals, then, is to counter this dogmatic slumber of the masses by offering a precise definition of the state, as I have done at the outset, and then to ask if there is not something truly remarkable, odd, strange, awkward, ridiculous, indeed ludicrous about an institution such as this. I am confident that such simple, definitional work will produce some serious doubt regarding an institution that one previously had been taken for granted.

     [↩]

6. See Are Patents and Copyrights “Monopolies”?; The Structural Unity of Real and Intellectual Property. [↩]
7. IP isn’t about owning ideas; those who oppose ownership of ideas are commies. [↩]
8. See IP as Contract. [↩]
9. “Hume on Intellectual Property and the Problematic “Labor” Metaphor.” [↩]
10. Hume, A Treatise of Human Nature, Book III, Part II, Section III note 16; all emphasis added. [↩]
11. Cordato and Kirzner on Intellectual Property. See also Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Rights; Hayek’s “Fund of Experience”; “Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors,” Mises Economics Blog (April 19, 2011); “Hume on Intellectual Property and the Problematic “Labor” Metaphor” (April 9, 2011). [↩]
12. On “things” as objects of property rights, and the proper use of the term “property,” see LFFS, ch. 1, App. 1, the sections “Concept and Definition of ‘Property’” and “Things”; Libertarian Answer Man: Self-ownership for slaves and Crusoe; and Yiannopoulos on Accurate Analysis and the term “Property”; Mises distinguishing between juristic and economic categories of “ownership”. [↩]
13. See “Against Intellectual Property After Twenty Years,” in LFFS, Part IV.B; Intellectual Property Rights as Negative Servitudes. [↩]
14. On why ownership is partial, because it’s not a right to use, see LFFS, ch. 2, App. I, the section “Property as a Right to Exclude,” and ch. 11, section “Property Rights as Limits on Action”; various posts on “strict liability” here. [↩]