Copying is Not A Tort

by Stephan Kinsella on June 7, 2025

I have pointed out that in case of disputes over the use of scarce (conflictable) resources (means of human action) other than one’s body, property rights principles are used to determine the owner of the contested resource. (In the case of one’s body, the principle of presumptive self- or body-ownership is used.) Thus, as noted in Aggression and Property Rights Plank in the Libertarian Party Platform:

2.1 Aggression, Property and Contract

Aggression is the use, trespass against, or invasion of the borders of another person’s owned resource (property) without the owner’s consent; or the threat thereof. We oppose all acts of aggression as illegitimate and unjust, whether committed by private actors or the state.

Each person is the presumptive owner of his or her own body (self-ownership), which right may be forfeited only as a consequence of committing an act of aggression. Property rights in external, scarce resources are determined in accordance with the principles of original appropriation or homesteading (whereby a person becomes an owner of an unowned resource by first use and transformation), contract (whereby the owner consensually transfers ownership to another person), and rectification (whereby an owner’s property rights in certain resources are transferred to a victim of the owner’s tort, trespass, or aggression to compensate the victim).

The problem with IP rights is that they are nonconsensual negative servitudes in which already-owned resources—owned by virtue of the above principles of original appropriation and contractual transfer—are treated as burdened or servient estates burdened by, and thus partially transferred to, a new owner (the holder of the IP right granted by the state, namely the patent or copyright)¹ even though the owner never consented to the transfer (as would be the case with a contractual, consensually-granted negative servitude or easement, such as a restrictive covenant.²

Is there any other basis for the grant of such negative servitudes? Well, it’s not as a result of fraud, since merely by making something with one’s own resources that resembles something done by another actor one does not commit fraud on anyone.³ Nor is making or selling a competing or similar product or object, using one’s own resources, a breach of any contract between the maker or seller and the IP rights holder.⁴

The only remaining argument is that making a product that is similar to some resource owned by a third party is some type of invasion of or trespass against the third party’s property that warrants a transfer some of the maker’s resources to the third party for purposes of rectification or restitution.

These arguments are always confused, circular, or dishonest. Circular, dishonest, and question begging because the IP proponent simply asserts that copying is “stealing” which presupposes that the IP rights granted by law are legitimate property rights, which is what is in dispute. You cannot argue that copying is trespass unless you first assume that there are property rights in patterns of information, which fails to recognize the distinct roles of scarce resources/means and knowledge in action—we already all agree that there are and ought to be property rights in the former; what is in dispute is property rights in the latter.⁵ If I invade your borders by using your owned resource (property) or affecting its physical integrity without your consent, then I thereby obligate myself to compensate you—to make rectification or restitution. But if I make a device or print or copy a book similar to that owned by the IP holders and sell it to a willing buyer, I have not violated any contract with the IP holder,⁶ nor have I committed any act of fraud against any customer or the IP holder.⁷

Nor are acts that reduce the value of someone’s property trespass since there is no property right to a resource’s value but only to its physical integrity.⁸

And confused because in response to this argument the IP proponent often shifts his claim and instead of arguing that the “copier” has “stolen” the money that the IP holder “could have made” if his monopoly IP rights had not been “infringed.” This is circular and confused because no one is entitled to a profit nor does anyone have a property right in money owned by potential customers.

In short, it is not a tort or trespass when a peaceful actor makes or sells a resource similar to that owned by someone else. So there is no justification for imposing a negative servitude on the copier’s property; no warrant for stealing or taking any of his resources. To do so is itself a form of legalized theft, usually in the disguised form of an IP right that is really a nonconsensual negative servitude.

This is not that hard to see. As I note here,⁹

what gives the IP holder the right to take the infringer’s money, or to prevent him from using his own factory or printing press as he sees fit? Consider the principles of original appropriation, contract, and rectification. The infringer presumably owns his money, factory, and or printing press by original appropriation or, more likely, by a contractual transfer from a previous owner. The IP holder was not the original occupier or appropriator of these resources, nor did he receive them by contract. He has no contract with the infringer/owner.

What about rectification? If the infringer had committed trespass or some tort against the IP holder—say, an act of theft, or battery—then the infringer would owe restitution or rectification to the IP holder. But by making smartphones similar to an iPhone or books similar to Catcher in the Rye the infringer has not committed any act of trespass at all; he is only an infringer of artificial, positive IP rights granted by the state, by fiat.

Competing with others, learning from them, emulating them, or even copying them simply is not fraud, it is not contract breach, it is not trespass.

Note for example the observation of noted Dutch libertarian legal philosopher Boudewijn Bouckaert:

In the case of involuntary transmission of ideas and in the case of voluntary transmission without any explicit or implicit contractual background (such as visiting an art gallery where no warning with regard to copyrights is made), neither contract nor tort can be considered the source of the obligation to refrain from the use of ideas. To qualify involuntary transmission of ideas as facts analogous to quasi-contracts is hardly defensible. When somebody makes a mistaken money transfer, the possession of the amount by the recipient is without basis; it is reasonable to ask him to repay the amount. In the case of an involuntary transmission of ideas, the person who made the idea public did not make a mistake and the recipient did not receive any scarce resource. They were merely exposed to information without asking for it. Consequently, there is hardl any basis in natural justice to require from involuntary receivers of ideas a compensation when they happen to use the information. If this should be the case, one could question why such an obligation should be limited to the kind of information the current legislation happens to protect. The way people clothe themselves,¹⁰ the way they comb their hair, the way they paint their houses, and the way they seduce their partners are all kinds of information communicated involuntarily. When a reason of natural justice applies for novels or technological recipes, why not for other kinds of information? This logical extension to all kinds of information would result in a multiplication of obligations, actions, and trials.

The obligations of third parties that result from the laws with regard to the protection of intellectual property can, as a consequence, be qualified only as obligations that are directly imposed by the government. In this respect they are exogenous to the inner logic of private law.¹¹

See also the comments of Benjamin Tucker:

The natural-rights side contended that the law must presume something to be property so long as it was valuable. If an idea had value, then it was presumed to be property whether publicly expressed or not. By contrast, Tucker advanced a theory of abandonment. That is, if a man publicized an idea without the protection of a contract, then he was presumed to be abandoning his exclusive claim to that idea.

If a man scatters money in the street, he does not thereby formally relinquish title to it … but those who pick it up are thereafter considered the rightful owners…. Similarly a man who reproduces his writings by thousands and spreads them everywhere voluntarily abandons his right of privacy and those who read them … no more put themselves by the act under any obligation in regard to the author than those who pick up scattered money put themselves under obligations to the scatterer.⁵⁴

Perhaps the essence of Tucker’s approach to intellectual property was best expressed when he exclaimed, “You want your invention to yourself? Then keep it to yourself.”¹²

I do not quite agree with Tucker here, since ideas are never owned, even when secret and known only to one person, so no “abandonment” theory is needed. But his instincts are basically correct here.