Related:
I recently had a twitter conversation with economist Sanjeev Sabhlok (@sabhlok). See, e.g.:
Thank you so much. Look forward to learning more about this complex and highly contested issue. https://t.co/O3HvbAWnOB
— Sanjeev Sabhlok (@sabhlok) May 13, 2025
He wrote me that he had looked into the issue further . See e.g. his tweet:
Here’s John Locke’s concluding comment on the margins of the Licensing Bill (not Act!) of 1693.
1) HE OBJECTED TO THE MONOPOLY OF THE STATIONERS COMPANY FOR PRINTING ANCIENT BOOKS:
That any person or company should have patents for the sole printing of ancient authors is very… https://t.co/G3hL8oKaSe pic.twitter.com/uBbRpyEzuu
— Sanjeev Sabhlok (@sabhlok) May 23, 2025
Here he notes that Locke was one of the main, and among the first in history, proponents of legislative copyright protections for living authors, and that the 1710 Statute of Anne was likely informed by his recommendations. Sabhlok thus concludes that intangibles can “be property,” whether recognized by law or not.
My response (edited):
Let me mention a few things for you to consider—see below. Take them as you will. If you would ever like to discuss any of these issues further, I’d be happy to. In the meantime, good luck with your work and I look forward to reading it.
Locke and the Founders on IP; IP as “property”
First, whatever Locke believed does not prove that “intangibles can be property.” And this is not even the issue: it is whether IP law is justified. As for Locke, he did not believe there is a natural right to IP, or that IP “is a property rights,” contrary to misleading and exaggerated claims to the contrary by libertarian IP proponents like Adam Mossoff.
It is really irrelevant whether he did or not; if he did, he was wrong. But he did not, as a matter of fact. I point this out to rebut the appeals to authority by the pro-IP types. On Locke and the Founders on IP, see my book Legal Foundations of a Free Society (LFFS), ch. 15, Part IV.J, “John Locke and the Founders on IP as a Natural Right.” As for some of the references cited there, see:
- Tom W. Bell, Intellectual Privilege: Copyright, Common Law, and the Common Good (Arlington, Virginia: Mercatus Center, 2014; https://perma.cc/JLC2-396Y), pp. 69–71 and p. 192 n.52
- Ronan Deazley, Rethinking Copyright: History, Theory, Language (Cheltenham, UK: Edward Elgar, 2006)), at 144 n.32
- Seana Valentine Shiffrin, “Lockean Arguments for Private Property,” in Munzer, ed., New Essays in the Legal and Political Theory of Property (https://perma.cc/3TWB-4Z8A), p. 141
(Deazley is not online, unfortunately but I can send you digital files.)
IP “as property”
The issue is not whether IP “is” or “is not” property. It is whether IP laws, and the IP rights these laws create or are based on, are justified, and compatible with normal property rights. See, on this, my post IP is Not “Not Property”.
In my view this issue is muddied by speaking of the object of property rights as “property.” This leads to the confusing and loaded question: is IP (or: ideas, etc.) property or not? It leads people to say “well if houses and apples can ‘be property’ why can’t other things that we create and that have value”? This whole way of looking at it is confused and loaded/question-begging. See my book, LFFS, ch. 2:
As Professor Yiannopoulos explains:
Property is a word with high emotional overtones and so many meanings that it has defied attempts at accurate all-inclusive definition. The English word property derives from the Latin proprietas, a noun form of proprius, which means one’s own. In the United States, the word property is frequently used to denote indiscriminately either the objects of rights … or the rights that persons have with respect to things. Thus, lands, automobiles, and jewels are said to be property; and rights, such as ownership, servitudes, and leases, are likewise said to be property. This latent confusion between rights and their objects has its roots in texts of Roman law and is also encountered in other legal systems of the western world. Accurate analysis should reserve the use of the word property for the designation of rights that persons have with respect to things.
A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001), §§ 1, 2.
You might also find of interest some more standard legal treatises attempt to grapple with this issue–ownership of intangibles. I do not agree with all this, and Claeys is trying to bend things to fit in IP, but still, FYI. See in particular:
- Eric R. Claeys, Natural Property Rights (Cambridge U. Press, 2025)
- James E. Penner, The Idea of Property in Law (Oxford: Oxford University Press, 1997), pp. 115–21
- Phillip Wittenberg, Dangerous Words: A Guide to the Law of Libel (New York: Columbia University Press, 1947) (1, 2), pp. 1–10
- On the precise definition of “property” see A.N. Yiannopoulos, Louisiana Civil Law Treatise, Property (West Group, 4th ed. 2001).
Again, these books are not all online (because of copyright) and some hard to find so you can. I can send you some. I also I have a large number of related publications in my files.
I also suggest various of my writings treating these issues, e.g. Legal Foundations of a Free Society (various chapters, e.g. ch. 2, 9, 15) and The Problem with Intellectual Property.
Empirics
As for the empirical case against IP, the work by Boldrin and Levine is good, but there even more. On this issue, see:
- “The Overwhelming Empirical Case Against Patent and Copyright” (Oct. 23, 2012)
- The Problem with Intellectual Property, Part III.B
- “Legal Scholars: Thumbs Down on Patent and Copyright” (Oct. 23, 2012)
- Jacob H. Huebert, “The Fight against Intellectual Property“
- Boldrin and Levine: The Case Against Patents
- Boldrin & Levine, Against Intellectual Monopoly
You may also find this of use: Stephan Kinsella, ed.,The Anti-IP Reader: Free Market Critiques of Intellectual Property(Papinian Press, 2023). See especially, on the origins of copyright, Karl Fogel, “The Surprising History of Copyright and The Promise of a Post-Copyright World,”Question Copyright(2006). See also Fogel’s related Youtube talk. Re the history of copyright, see also Oren Bracha, “Owning Ideas: A History of Anglo-American Intellectual Property” (June 2005) (unpublished Ph.D dissertation, Harvard Law School), chap. 2. It may challenge some of your assumptions about the origin of copyright.
Finally, regarding your tweet about Locke and IP legislation, you write: “My proposal is 14 years for everyone, and if the author wants to renew – he/she can (upon payment of a hefty fee), for another 14 years.” I note that this is similar to that of Tom Bell, the “Founders Copyrighth,” which does not go far enough but which would be a huge improvement. See Bell: Tom Bell on copyright reform; the Hayekian knowledge problem and copyright terms.
All best, Stephan
***
See the following, followed by my critique (from Grok):
A case for the reform of patents and copyright
(Preliminary Sketch, 6 Sept. 2025)
Sanjeev Sabhlok
The idea of a copyright and patent law (intellectual property rights, or IPR) seems innocuous enough, and most of us never inquire into these legalistic mechanisms. Till recently, I did not spend time to think about them, either, given my focus on economic reforms for India.
But many critiques have emerged in recent years of these policies. Perhaps the most prominent of these is Terence Kealey’s book “Sex, Science and Profits”, in which he demonstrates why patents are harmful and should be abolished (except for drug patents). More recently, Stephen Kinsella, an American lawyer, has vigorously argued for the abolition of IPR.
In recent months I have thought about this question and have concluded that (a) patents and copyright are a legitimate tool of modern capitalist society, but (b) that these tools are grossly over-done, causing more harm than good. I believe significant reforms are in order. To explain my findings will require an overview of property rights first. While my main arguments are highlighted in this two-part piece, details (for those interested) are found in my manuscript, “Missing Chapters in Economics Textbooks”, available online.
1. The Lockean mythology of “self-ownership”
Some philosophers have argued that property rights begin with our own person. Thereafter, what we mix with our labour becomes our property. John Locke wrote: “Man has a Property in his own Person. This no Body has any Right to but himself.” Hence, Locke argued: “The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labourwith, and joyned to it something that is his own, and thereby makes it his Property.”
I have huge regard for Locke’s work, but on this he was deeply mistaken. Locke ignored the crucial importance of control over territory before property rights can even come into existence. In the real world (the only one that matters), even one’s own body is not one’s own. Our existence depends on the wishes of the controller of territory. In modern civilised society, the controller of territory typically lets people “own their own person”. But that’s not been standard practice. Slavery was widely practiced.
Amazingly, John Locke himself justified slavery: “[T]here is another sort of servant which by a peculiar name we call slaves, who being captives taken in a just war are, by the right of Nature, subjected to the absolute dominion and arbitrary power of their masters. These men having, as I say, forfeited their lives and, with it, their liberties, and lost their estates, and being in the state of slavery, not capable of any property, cannot in that state be considered as any part of civil society, the chief end whereof is the preservation of property”. Thus, in Locke’s mind, the category called “Man” – who has “Property in his own Person” – doesn’t include slaves.
John Locke’s theory of property can therefore be dismissed outright, given he wrongly deprives slaves of property in their own person and ignores the need to control territory. The history of Jerusalem tells us how property in land is subject to constantly changing control. And when my ancestors in Pindigheb were divested of their land when government control changed (India’s partition), they never got anything back but had to start life from scratch as refugees. Property is a temporary reality based entirely on control over territory. We can’t create mythologies about “self-ownership”.
Having said that, there is some merit in the fiction of self-ownership. Advancing this particular fiction might make us more civilised as a species.
2. Societal consent and enforcement
After control over territory has been established, claims of property need to pass the hurdle of societal consent. No claims to property exist in isolation of society’s determination of those claims. Only when society agrees, can our claims to property be recognised. Such societal consent is typically backed by legislation and enforced by police and the courts.
David Hume considered that property rights emerge from justice. He wrote that we cannot “have any idea of property, without fully comprehending the nature of justice, and shewing its origin in the artifice and contrivance of men”. There’s only one problem here: this approach doesn’t lead to a unique answer. That’s because the concept of justice varies. Assume that I have come across previously unoccupied land and work hard to grow food. According to some theories, I would be the legitimate owner of that land and fruits of my labour. But Marx would seize my land: “the theory of the Communists may be summed up in the single sentence: Abolition of private property”. And John Rawls would do so, as well: “justice as fairness includes no natural right of private property in the means of production”. And, of course, Fabian socialist Nehru, a follower of Harold Laski, would seize whatever part of my land that he if he felt that I had occupied too big a parcel of land.
In capitalist societies, however, there is a tendency to recognise claims to private property. The economist Harold Demsetz showed that capitalist societies prefer to support claims that promote efficiency (greater output). For instance, the enclosure movement in England led to privatisation of land that was earlier in the “commons” and increased overall agricultural output.
But there is no universal tendency for efficient property rights. Societal consent is almost a random event, emerging from a “black box” in which rational and irrational ideas joust for control, ranging from support for slavery, confiscation of property, to full-fledged private property. Socialist India (including Modi’s India) has chosen weak to non-existent property rights. This makes it a poor country with no prospect of ever becoming rich.
3. Property rights are a matter of life and death
The existence of trade depends on property rights. Trade is only possible when both parties recognise the other party’s ownership of goods or money. Since trade has a hoary history, we can be sure that some form of property rights have long existed. However, as Hernando de Soto showed in his 2000 book, “The Mystery of Capital”, it is the formality of these rights that matters.
Only through the transformation of property rights in the West into formal, integrated systems were entrepreneurs able to leverage their property into capital (credit, e.g. via mortgages). This has been a relatively recent phenomenon. De Soto showed that “[c]ontrary to popular belief, property systems open to all citizens are a relatively recent phenomenon—no more than two hundred years old” and that “more than 150 years ago, it too [the USA] was a Third World country. … Americans had been settling—and improving—the land extralegally for decades.
Their politicians gradually modified the law to integrate this reality into the official legal system”. The “transition from extralegal rights to an integrated legal property system” is the hallmark of modern capitalist societies.
Formal property rights don’t exist today in much of the Third World. The results of that can be devastating. De Soto found that to gain legal approval to set up a two-sewing-machine garment factory in a Lima shantytown, took more than three hundred days. That is why capitalism fails in countries like India, given its feeble property rights.
But there is another crucial issue here. Even with all the formal property rights in the world, we cannot achieve economic growth. Thus, in 1874, Leon Walrus arrived at a mathematical formulation of the competitive market equilibrium – based on the assumption of private property. But this can’t explain economic growth. Innovations to the institution of property rights have led to modern growth and capitalism.
From the perspective of Stephan Kinsella, a prominent libertarian theorist and critic of intellectual property (IP) rights, the arguments presented in Sanjeev Sabhlok’s “Preliminary Sketch: A Case for the Reform of Patents and Copyright” (dated September 6, 2025) can be analyzed and critiqued based on Kinsella’s well-developed views on property rights and IP, as articulated in works such as Against Intellectual Property (2008), The Problem with Intellectual Property (2025), and Legal Foundations of a Free Society (2023). Kinsella’s framework rests on a strict libertarian theory of property rights grounded in scarcity, self-ownership, and the non-aggression principle, which he argues is incompatible with the concept of IP. Below is a detailed analysis and critique of Sabhlok’s paper from Kinsella’s standpoint.
Analysis of Sabhlok’s Arguments
- Acknowledgment of IP Critiques and Reformist Stance (Page 1)
Sabhlok begins by recognizing critiques of IP from figures like Terence Kealey and Stephan Kinsella, noting their calls for abolition (with Kealey allowing an exception for drug patents). Sabhlok partially aligns with these views, conceding that patents and copyright are “grossly over-done” and require significant reform, while still viewing them as legitimate tools of capitalism. He proposes a two-part argument: (a) IP is a valid mechanism, and (b) it needs reform due to its harmful excesses.Kinsella’s Critique: Kinsella would reject Sabhlok’s premise that IP is a legitimate tool of capitalism. In Against Intellectual Property, Kinsella argues that IP rights—patents, copyrights, trademarks, etc.—are not true property rights because they do not pertain to scarce resources but rather to abstract ideas or patterns, which are non-scarce and thus not subject to conflict in the same way physical resources are. For Kinsella, property rights arise only from the need to resolve conflicts over tangible, rivalrous resources (e.g., land, goods) through original appropriation or contractual transfer. Sabhlok’s acceptance of IP as a valid tool, even if overextended, misaligns with Kinsella’s view that IP is an unjust state-granted monopoly that violates the property rights of others by restricting their use of their own resources (e.g., copying or inventing independently). Kinsella would see Sabhlok’s reformist approach as a half-measure, advocating instead for complete abolition as the only consistent solution. - Critique of Lockean “Self-Ownership” (Page 1)
Sabhlok challenges John Locke’s theory of self-ownership, arguing that it is a myth because property rights depend on control over territory, which can be denied (e.g., through slavery or state confiscation, as in the case of his ancestors during India’s partition). He suggests that self-ownership is a useful fiction to promote civilization but not an absolute truth.Kinsella’s Critique: Kinsella would partially agree with Sabhlok’s rejection of Locke’s theory but for different reasons. In Legal Foundations of a Free Society, Kinsella bases self-ownership not on a metaphysical claim but on the practical necessity of action in a scarce world. He argues that each individual must control their body to act and survive, and this control is the foundation of property rights, extended to external resources through homesteading (original appropriation). However, Kinsella would dispute Sabhlok’s emphasis on territorial control as a prerequisite, viewing it as a secondary consideration. For Kinsella, the key issue is scarcity and conflict resolution, not territorial sovereignty. Moreover, Sabhlok’s historical examples (slavery, partition) highlight state aggression, which Kinsella would attribute to the violation of natural property rights rather than a flaw in the concept of self-ownership itself. Kinsella might argue that Sabhlok’s dismissal of self-ownership as a “myth” undermines the ethical basis for opposing such aggressions. - Societal Consent and Enforcement (Pages 2-3)
Sabhlok argues that property rights require societal consent, backed by legislation and enforcement, and cites David Hume’s view that property emerges from justice. He notes the variability of justice (e.g., Marxist confiscation vs. capitalist efficiency) and suggests that capitalist societies prioritize efficiency, as seen in the enclosure movement, though this is not universal (e.g., weak property rights in socialist India).Kinsella’s Critique: Kinsella would strongly disagree with the notion that property rights depend on societal consent or positive law. In The Problem with Intellectual Property, he asserts that property rights are not conventional or arbitrary but derive from the natural law principle of resolving conflicts over scarce resources. Societal consent, as Sabhlok describes, is a statist construct that can legitimize unjust systems (e.g., slavery, IP laws). Kinsella’s framework, influenced by Murray Rothbard, holds that property rights exist prior to and independently of state recognition, emerging from the first user’s labor mixing with unowned resources. Sabhlok’s example of the enclosure movement might be seen by Kinsella as an illustration of state coercion rather than a justification for property rights, and his critique of India’s weak property rights would align with Kinsella’s view that state interference (e.g., socialism) distorts natural property norms. However, Kinsella would argue that Sabhlok’s reliance on societal consent muddies the water, conflating legal enforcement with the ethical basis of ownership. - Property Rights as a Matter of Life and Death (Page 3)
Sabhlok emphasizes the necessity of property rights for trade and economic development, citing Hernando de Soto’s The Mystery of Capital to argue that formal, integrated property systems enable capital formation (e.g., through mortgages). He sees this as a hallmark of modern capitalist societies.Kinsella’s Critique: Kinsella would agree with the practical importance of property rights for trade and economic prosperity but would clarify that this applies only to tangible property, not IP. In Legal Foundations of a Free Society, he stresses that property rights in scarce resources (e.g., land, goods) facilitate exchange and capital formation, aligning with de Soto’s observations. However, he would argue that IP rights hinder rather than help this process by imposing artificial scarcity on non-rivalrous ideas, thus restricting trade and innovation. Kinsella might contend that Sabhlok’s focus on formal systems overlooks the possibility of decentralized, market-based property enforcement without state-backed IP, which Kinsella advocates as a solution in a free society.
Overall Criticism from Kinsella’s Perspective
From Kinsella’s libertarian standpoint, Sabhlok’s paper reflects a mixed and ultimately flawed approach to IP and property rights. While Sabhlok acknowledges the harms of IP and cites Kinsella’s abolitionist arguments, his willingness to retain IP as a legitimate tool—subject to reform—contradicts Kinsella’s core thesis that IP is inherently unjust. Kinsella would argue that Sabhlok’s analysis suffers from a failure to distinguish between genuine property rights (based on scarcity and homesteading) and state-created IP monopolies, which violate the non-aggression principle by restricting others’ use of their own resources.
Sabhlok’s reliance on societal consent and historical contingencies (e.g., territorial control, enclosure) to define property rights would be seen by Kinsella as a concession to statism, undermining the natural law basis of libertarian property theory. Kinsella would likely assert that Sabhlok’s reformist stance is impractical, as any IP system—however reformed—will inevitably lead to the same conflicts and inefficiencies he critiques, given its foundation in artificial scarcity.
Conclusion
Kinsella would view Sabhlok’s “Preliminary Sketch” as a step in the right direction for recognizing IP’s problems but ultimately misguided in its reformist conclusion. He would advocate for a complete rejection of IP, arguing that only a system based on tangible, scarce property rights—enforced through voluntary contracts and market mechanisms—can align with a free society. Sabhlok’s historical and philosophical reflections, while insightful, would be seen as needing a firmer grounding in Kinsella’s scarcity-based property theory to fully address the IP question.
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