The “Ontology” Mistake of Libertarian Creationists

by Stephan Kinsella on May 29, 2025

From my various posts and writing.

Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Rights; Hayek’s “Fund of Experience”
A Recurring Fallacy: “IP is a Purer Form of Property than Material Resources”

Remembering Tibor Machan, Libertarian Mentor and Friend: Reflections on a Giant:

To provide an insufficient summary, Tibor basically tried to argue that there are ontologically various kinds of “things” that “exist”—poems, trucks, etc. And since “The tangible-intangible distinction is not a good one for what can and cannot be owned”, then we need to focus on “intentionality”–things we intentionally create or produce, whether they be “tangible” or “intangible.” Indeed, that intangible things like poems, computer games/programs, novels, songs, arrangements, etc. are more completely “intentional” and “created” than are tangible goods. I.e., Tibor’s theory seems to be that any “ontological type of thing” that we can identify, and that was intentionally created or produced by man, is owned by man.

I think this is flawed for a number of reasons, as I have pointed out elsewhere.¹ Naming a thing conceptually does not prove there is some “ontological type of thing that exists and can be owned”; this would be to conflate concepts adopted for conceptual utility with real, existing things. It would be a type of reification. But I also don’t think Tibor thought he had figured this issue out completely. Again, he was sincerely struggling with a difficult issue—trying to figure things out, trying to find out the best way to understand liberty and rights.

Owning Thoughts and Labor:

The problem here is it just assumes any “thing” you can identify conceptually may be owned. One problem with this is that it seems to make reality depend on the way we name or conceptually identify things. If I call or understand your output as a “novel,” then the “novel” is the unit. But just because this suffices for conceptual understanding of the world does not mean there is some “ontological” class of entities called “novels” that may be owned. In fact our concepts are use to refer to many phenomenon in or aspects of reality–truth, love, the-fact-that-I-woke up this morning, the age of the earth, my favorite drink. Are these things ownable just because they are “things” that can be conceptually identified? I don’t think so.

When you ask what things are ownable, before asking who the owner is, you realize the criteria is bound up with the purpose of property rights, which is to assign owners to avoid conflict; that is, they pertain to the types of things over which there can be conflict–that is, to rivalrous (scarce) resources.

From Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023): ch. 15, n. 76:

See my posts “Yet more disanalogies between copyright and real property,” C4SIF Blog (Feb. 4, 2013); “Mossoff: Patent Law Really Is as Straightforward as Real Estate Law,” C4SIF Blog (Aug. 17, 2012); “Classifying Patent and Copyright Law as ‘Property’: So What?”, Mises Economics Blog (Oct. 4, 2011); and “Richard Epstein on ‘The Structural Unity of Real and Intellectual Property,’” Mises Economics Blog (Oct. 4, 2006). Anyone who thinks there can be a straightforward analogy between normal property rights and property rights in intangibles should consult Peter Drahos, A Philosophy of Intellectual Property (Ashgate, 1996; https://press-files.anu.edu.au/downloads/press/n1902/html/cover.xhtml), pp. 16–19 et pass., and Alexander Peukert, A Critique of the Ontology of Intellectual Property Law, Gill Mertens, trans. (Cambridge University Press, 2021), p. 101 et pass.

LFFS, ch. 14, n. 78:

Tibor Machan, “Intellectual Property and the Right to Private Property,” Mises.org working paper (2006; https://mises.org/wire/new-working-paper-machan-ip), discussed in Kinsella, “Owning Thoughts and Labor,” Mises Economics Blog (Dec. 11, 2006), and in idem, “Remembering Tibor Machan, Libertarian Mentor and Friend: Reflections on a Giant,” StephanKinsella.com (April 19, 2016). See also the similar “ontology” based argument of J. Neil Schulman, mentioned in “Conversation with Schulman about Logorights and Media-Carried Property” (ch. 17).

ch. 17, n.20:

“Tibor Machan advanced a similar “ontology” based argument for IP. See Tibor Machan, “Intellectual Property and the Right to Private Property,” Mises.org working paper (2006; https://mises.org/wire/new-working-paper-machan-ip), discussed in Kinsella, “Owning Thoughts and Labor,” Mises Economics Blog (Dec. 11, 2006), and in idem, “Remembering Tibor Machan, Libertarian Mentor and Friend: Reflections on a Giant,” StephanKinsella.com (April 19, 2016); see also “Law and Intellectual Property in a Stateless Society” (ch. 14), at n.78.

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The Ontology of Cyberspace: Law, Philosophy, and the Future of Intellectual Property by David R. Koepsell. https://stephankinsella.com/2009/08/david-koepsell-another-austrian-influenced-ip-opponent/

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Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors (2008):

As for the idea that we own things we “create,” this idea is often used to justify IP–after all, who can deny that an author “creates” his novel? So if you own normal (tangible) property because you create it, why don’t you own other “ontological” types of things you create, like poems or inventions or recipes? (See, e.g, the argument for IP by Tibor Machan.) The problem with this idea (see pp. 26 et pass. of Against Intellectual Property; Owning Thoughts and Labor; and the discussions in the comments section of Trademark and Fraud) is that creation is neither necessary nor sufficient for ownership. If you already own the underlying material that you re-shape into a different, more useful configuration, you own the resulting thing because you already owned the material that it is made of (imagine carving a statue out of your hunk of granite). And if you carve a statue in someone else’s granite, you don’t own the statue. In fact, the only way to come to own something is to either find it unowned and appropriate it; or to obtain it contractually from someone who did (or his transferee).

Rand on IP, Owning “Values”, and “Rearrangement Rights”:

I think a similar mistake is made by Tibor Machan. Rand slips into thinking of values as ownable things because she thinks of values as created things, rather than thinking of it as a verb: people value things (and demonstrate this preference or valuing in action). I’m sure Machan would disagree with my way or framing his argument, but his argument, to me, seems to say that if you can have a concept for some”thing”, or a name or word for “it,” then it’s an ontological “type of thing,” and after all, if you create this thing, why shouldn’t you be “its” owner? The problem (For more on this, see New Working Paper: Machan on IP; Owning Thoughts and Labor; this comment to “Trademark and Fraud”; Libertarian Creationism; also Elaborations on Randian IP and Objectivists on IP.)

Kinsella v. Schulman on Logorights and IP:

Neil, I said your term “logorights” is somewhat arcane, not your theory, and there was no disrespect implied.

I think you are just wrong to assume that “having an identity” is a sufficient condition for being subject to property rights.

Consider: one has no property right the value of one’s property, as Hoppe and Rothbard have argued (see Sheldon Richman on Intellectual Property versus Liberty); and likewise, one has no property right in the “identity” of one’s property.

The reason is that owning value, patterns, identify gives you an ownership right in others’ already-owned property. Saying you own the “identity” of a thing you own is another way of saying you own the pattern by which it is arranged-which is a disguised way of saying you have ownership rights in things everyone else owns. The standard Lockean account of property accepted by most libertarians says that the person who appropriates a previously unowned scarce resource becomes its owner. The IP advocate, of which you are one, says that if A thinks of a unique way to use his property or a unique pattern to impose on his own property, this act of intellectual innovation magically gives him partial ownership rights in property already owned by others. It lets you tell B how he can use his own property, even though B is the appropriator and by Lockean principles only B should be the owner. Granting A an IP right just means some of B’s rights of control are transferred to A-it’s a transfer of wealth or property, and it’s incompatible with libertarian property rights.

The mistake Rand made was thinking “anything you create” is property, without first asking if the thing created is the type of thing that is subject to property in the first place. In fact, creation is neither necessary nor sufficient since if you create some new pattern using others’ property you are not its owner; and if you impose a new pattern on property you own, then you own the transformed thing since you already owned the stuff of which it’s made. A focus on creation as a source of ownership is the mistake made here. Creation is a source of wealth, sure, but not of ownership, since you can only create using things you already own.

Tibor Machan makes a similar mistake to your “identify” view when he assumes that many “ontological” types of things can be property-the mistake is in assuming that the way we conceptually and terminologically understand the world has some metaphysical basis that translates into property rights. By this view any concept we come up with to “identify” things that is successful, has magically created a new class of property. I find the concept “poem” useful-it is conceptually valid.. poems “have” “identity”-voila, they must be property!

I don’t agree with this way of making rights depend on what concepts we have or how we identify and understand things in the world. Just because we can call something by a word, or call it a “thing,” does not mean it is ownable. In fact, all ownership rights are enforced in physical terms against scarce resources; which means that granting rights in anything else has to undermine and dilute real rights in real things.

Trademark Ain’t So Hot Either…; Trademark and Fraud; Discussion with George Reisman:

I’ve tried to show that it’s a mistake to think of creation as a source of ownership of property. Often it’s said that you can find/appropriate something, create it, or buy/receive it from a previous owner. But “creation” is not really a third way of acquiring ownership. In fact, it’s neither necessary nor sufficient. Appropriation of unowned goods, and contractual acquisition of goods from previous owners, are the only ways to acquire property rights in things. I discuss this in detail in the section “Creation vs. Scarcity” et pass. of Against Intellectual Property. Also, note that if you say that we have property rights to “things we create,” you indeed open the door to a horrible pandora’s box of things that people have monopolistic rights to, which would entangle and ensnare all use of scarce resources, thus leading to the entire human race dying out. See, e.g., the examples of Galambos and Schulman, noted in my article, who advocate protection of a very broad range of mentally “created” patterns, ideas, “logos,” what have you.

Tibor Machan has alluded to this in some of his writings, where he basically wants to say that there are all kinds of “things” that “exist”–poems, trucks, etc.–and since “The tangible-intangible distinction is not a good one for what can and cannot be owned”, then we need to focus on “intentionality”–things we intentionally create or produce, whether they be “tangible” or “intangible”–indeed, intangible things like poems, computer games/programs, novels, songs, arrangements, etc. are more completely “intentional” and “created” than are tangible goods. I.e., Machan’s theory seems to be that any “ontological type of thing” that we can identify, and that was intentionally created or produced by man, is owned by man. For more on this, see: New Working Paper: Machan on IP; also see the criticism and discussion in the comments (e.g., those of Carl Johan Petrus Ridenfeldt at November 30, 2006 4:59 PM); see also Owning Thoughts and Labor [Rothbard and Hoppe on 1988 Panel], Mises Blog (Dec. 11, 2006) and related comment thread; and the comments in The Copyright/Baseball Analogy. I think if you review the criticisms of Machan’s view here (and my discussion of “Creation v. Scarcity” in my longer paper noted above), you’ll begin to see the magnitude of problems that accompany looking at property in this way.

Intellectual Nonsense: Fallacious Arguments for IP: Transcript: