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Kinsella’s Libertarian Case Against Intellectual Property (Grok and ChatGPT)

by on July 3, 2025

I asked my two go-to AIs to write an article for me based my previous publications. Here is the initial prompt I gave both:

Write a draft article, in Stephan Kinsella’s style and voice, presenting his case against intellectual property law. Draw on the articles and posts linked below and attached. Include as many nuances and details as possible and make the argument systematic and as comprehensive as possible. Make the article concise if possible but take as much space as needed to fully flesh out the various arguments and explanations.Consult attached documents and the following:

I also gave it the following in Word format:

The Grok version was better, but left out some material I wanted added. The ChatGPT version was more of a condensed summary, but seems pretty good.

I asked Grok to augment its version with the additional prompt here:

Keep most of this analysis, which is excellent, but augment with the following considerations:Consider also the version written by ChatGPT in https://c4sif.org/2025/07/kinsellas-libertarian-case-against-intellectual-property-grok-and-chatgpt/ and also also re-consider the arguments in https://stephankinsella.com/as_paf_podcast/kol-037-lockes-big-mistake-how-the-labor-theory-of-property-ruined-political-theory/, and https://c4sif.org/2025/04/ip-is-not-not-property/. Add to your draft article some explicit mention of the argument criticizing Locke’s labor theory of property and Lockean or Libertarian Creationism, and make sure you include the argument where Kinsella points out that, as shown in Locke’s Big Mistake and elsewhere, creation is not an independent source of ownership. Creation is the transformation of already-owned materials. Homesteading is the source of ownership; creation merely rearranges what is already owned. As part of this explanation and argument make sure to include the argument that successful action requires both the availability of causally efficacious scarce means of action and knowledge to guide action, and that only the former is ownable, that is, a candidate for, or a type of thing that can be subject to property rights, while knowledge is not and cannot be owned because it is not an independenty existing thing but only a feature of characteristic of an owned material carrier or substrate, an impatterning or arrangement of an already-owned thing, and because of the non-scarce, non-conflictable, non-rivalrous nature of knowledge and information, not only can it not be owned, it does not need to be because there cannot be conflict by actors in the use of information, patterns, and knowledge that guides action but only in the scarce resources that actors possess and that are causally efficacious at achieving ends. On this issue, see also “For further discussion of why it is impossible to own information (or things like Bitcoin) precisely because it is replicable and always has to be stored on an underlying, already-owned medium, see “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability” (ch. 9), at n.31; “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection” (ch. 11), at notes 3 and 5; “Against Intellectual Property After Twenty Years” (ch. 15), at n.69; and “Conversation with Schulman about Logorights and Media-Carried Property” (ch. 17), attached. And consult also https://c4sif.org/2024/01/munger-on-property-rights-in-words-and-information/ and https://c4sif.org/2017/02/another-way-to-explain-the-problem-with-ip-resources-v-knowledge-ownership-v-possession/
As noted in ch. 25 (attached), “We need to understand that aggression is not the fundamental concept of libertarianism. Aggression is a shorthand description of our view of property rights. Every political philosophy, every person on the planet, has an implicit or explicit view of property rights. Because property rights arise only because we live in a world of scarcity, a world of scarce resources, which means a world where conflict is possible. If you understand Mises’s praxeology and his analysis of human action and how human action is the purposeful employment of scarce means—things that are causally efficacious in the world to achieve your end, guided by your knowledge (which is why there are no property rights in ideas) —then you’ll understand that property rights are always the right to control a given resource. It’s about that.”
As noted here https://c4sif.org/2024/01/munger-on-property-rights-in-words-and-information/, “the axe head and knowledge are not really related. They play distinct roles in human action. Human action is always the use by a human, of his corporeal body, to manipulate physical things in the world (means) to causally intervene to try to achieve ends; and the action is always guided by the actors’ knowledge: his choice of what ends to pursue, his choice of what means can suffice to achieve his ends. The means and knowledge are completely distinct and play distinct roles in successful human action. All successful human action requires the actor have access to both causally efficacious means, and to knowledge as to what ends to pursue and what means to employ. Both ingredients are essential, but they are distinct, just as the actor himself is conceptually and existentially distinct from the means employed, the action taken, the knowledge consulted.” And in https://c4sif.org/2025/05/problem-with-intellectual-property-tttc-wp-2/, “Moreover, “[m]eans are necessarily always limited, i.e. scarce, with regard to the services for which man wants to use them.”[45] This is why property rights emerged. Use of a resource by one person excludes use by another. Property rights are assigned to scarce resources to permit them to be used productively and cooperatively, and to permit conflict to be avoided. In contrast, ownership of information or ideas that guide action is not necessary (or even possible). For example, two people who each own the ingredients (scarce goods) can simultaneously make a cake using the same recipe.Material progress is made over time because information is not scarce. It can be infinitely multiplied, learned, taught, and built on. The more patterns, recipes, and causal laws that are known, the greater the wealth multiplier as individuals engage in ever-more efficient and productive actions. It is good that ideas are infinitely reproducible. There is no need to impose artificial scarcity on ideas to make them more like physical resources, which are scarce.”
Give me the revision in HTML format.

GROK (first try; revision)

[Note: Grok told me “You’ve hit the content size limit for attachments in this conversation. Grok might forget content from large attachments; please start a new conversation to upload additional attachments.”]

Against Intellectual Property: A Libertarian Case for Abolishing Patent and Copyright

By Stephan Kinsella

Intellectual property (IP) law—encompassing patents, copyrights, trademarks, and trade secrets—has long been accepted as a cornerstone of a free market system. For centuries, it has been assumed that IP rights are essential to incentivize innovation and creativity, enshrined in statutes and defended as extensions of property rights. Yet, as a libertarian grounded in the principles of self-ownership, homesteading, and the non-aggression principle, I argue that IP is fundamentally incompatible with a free society. Patents and copyrights are state-granted monopoly privileges that invade genuine property rights, distort markets, and impoverish human flourishing. This article presents a comprehensive case for abolishing patent and copyright, drawing on libertarian principles, economic insights, and empirical evidence, while addressing common defenses, including flawed labor and creationist theories, and envisioning an IP-free world.

I. The Libertarian Framework: Property Rights and Conflict Avoidance

Libertarianism is not merely about advocating property rights—every political system assigns ownership to resources—but about defining just rules for their allocation to avoid conflict and foster peace and cooperation. To understand why IP is unjust, we must first clarify the libertarian conception of property rights, rooted in self-ownership and the homesteading of scarce resources.

A. Self-Ownership: The Foundation of Liberty

At the heart of libertarianism lies self-ownership: each individual has the exclusive right to control their own body. As Murray Rothbard states, “The fundamental axiom of libertarian theory is that each person must be a self-owner, and that no one has the right to interfere with such self-ownership.”1 This principle emerges from the need to avoid conflict over scarce resources, including human bodies, which are rivalrous—my use of my body excludes others from using it. Self-ownership is justified by the unique, objective link between a person and their body: direct control. Hans-Hermann Hoppe emphasizes that property title must be assigned based on “an objective, intersubjectively ascertainable link” between owner and resource.2 My direct control over my body gives me a better claim than any outsider, avoiding arbitrary or particularistic norms (e.g., “I own your body, but you don’t own mine”).3 Non-libertarian systems, such as those endorsing taxation or conscription, implicitly claim partial ownership over individuals’ bodies, akin to slavery, which libertarians reject.

B. Property in External Resources: Homesteading and the Prior-Later Distinction

For external scarce resources—land, materials, or objects—libertarians assign ownership based on first use or homesteading. Unlike bodies, which are inherently tied to a person, external resources are initially unowned and become property through appropriation. Hoppe describes homesteading as “embordering,” establishing publicly visible boundaries to prevent conflict.4 The “prior-later distinction” ensures that the first user has a better claim than latecomers, respecting the temporal reality of human action.5 If latecomers could seize homesteaded resources, ownership would collapse into possession, endorsing a “might-makes-right” system that fuels conflict.

Property rights thus govern scarce, rivalrous resources—things that can only be used by one person at a time. As Ludwig von Mises explains, human action involves employing scarce means to achieve ends, guided by knowledge.6 Property rights allocate these means to enable productive use and cooperation. IP, as we will see, attempts to assign ownership to non-scarce knowledge, which is neither necessary nor justifiable.

II. Why Intellectual Property Is Unjust

Patents and copyrights grant holders the right to control how others use their own property based on patterns, ideas, or information. Patents cover inventions, allowing patentees to prohibit others from configuring their property in certain ways. Copyrights cover original works, restricting reproduction or distribution using one’s own materials. These are state-enforced monopolies that invade property rights and violate libertarian principles.

A. IP as a Negative Servitude on Others’ Property

Ownership entails the exclusive right to control a scarce resource. IP, however, grants co-ownership claims over others’ property. A patentee can prevent someone from building a machine with their own materials, while a copyright holder can stop someone from printing a book with their own ink and paper. This is a non-consensual negative servitude—a restriction on others’ property use.7 As I’ve argued, “IP grants to A a co-ownership right (a negative servitude) in B’s property,” redistributing wealth from B to A akin to theft.8 The prior owner, who homesteaded or purchased their property, is overridden by a latecomer IP holder whose claim rests on state fiat, not natural rights.

Real-world cases illustrate this. In 2005, a Canadian judge ordered customers not to read, copy, or discuss a Harry Potter book purchased early, censoring their actions with their own property.9 J.D. Salinger used copyright to ban a novel, 60 Years Later: Coming Through the Rye, stifling expression.10 These examples reveal IP’s censorious roots in crown and church efforts to suppress ideas.11

B. Ideas Are Not Scarce or Ownable

Property rights address scarcity: rivalrous resources require allocation to avoid conflict. Ideas, patterns, and information—the subject matter of IP—are not scarce. Unlike a physical object, an idea can be used simultaneously by countless individuals without depletion. Thomas Jefferson captured this: “He who receives an idea from me, receives instruction himself without lessening mine.”12 Two people can bake cakes using the same recipe without conflict, as long as they own their ingredients. IP artificially imposes scarcity on ideas, restricting their use and stifling progress.13

Moreover, information cannot be owned because it is not an independently existing thing. It exists only as an impatterning or arrangement of an already-owned material substrate, such as a brain, paper, or computer drive.14 For example, a novel is not a standalone entity but a pattern of words on owned paper or a digital file on an owned device. Owning the substrate does not confer ownership of the pattern, as patterns are replicable and non-rivalrous. As I’ve noted, “Information is always stored on an underlying, already-owned medium,” and thus cannot be independently owned.15 This applies to entities like Bitcoin, which are not ownable because they are digital information requiring an owned medium (e.g., a blockchain ledger).16

C. Knowledge vs. Means in Human Action

Human action, as Mises explains, involves employing scarce means to achieve ends, guided by knowledge of causal laws and recipes.17 Scarce means—bodies, materials—are causally efficacious, enabling action in the physical world. Knowledge, however, is a distinct component, guiding the actor’s choice of ends and means. Both are essential, but only scarce means are ownable, as they are rivalrous and subject to conflict.18 Information, being non-scarce, does not require ownership to avoid conflict, as multiple actors can use the same knowledge simultaneously. IP’s attempt to treat knowledge as property conflates these roles, restricting the use of owned means based on non-ownable patterns.19 As I’ve written, “The more patterns, recipes, and causal laws that are known, the greater the wealth multiplier as individuals engage in ever-more efficient and productive actions.”20 IP’s artificial scarcity hampers this process, impoverishing society.

D. IP Violates the Prior-Later Distinction

IP inverts the prior-later distinction. The first user of a resource has a better claim than latecomers. Yet, IP allows a patent or copyright holder to override prior owners’ rights. If I independently develop a machine with my own factory, a patentee who filed first can prohibit my use, despite my prior claim to my property.21 This grants latecomers state-backed privileges, undermining libertarian property principles.

III. Refuting Defenses of Intellectual Property

IP defenders, including some libertarians, argue that it promotes innovation or is a moral right. These defenses—utilitarian, deontological, and contractual—fail under scrutiny.

A. Utilitarian Arguments: The Myth of Innovation Incentives

The utilitarian defense claims IP incentivizes innovation, as reflected in the U.S. Constitution’s aim to “promote the progress of science and useful arts.”22 This is flawed ethically and empirically.

Ethical Flaws: Utilitarianism, which prioritizes aggregate welfare, can justify injustices like wealth redistribution or even violence if the benefits outweigh the costs. Libertarians prioritize principled property rights to ensure individual liberty.23

Empirical Flaws: The evidence for IP’s benefits is weak. Fritz Machlup’s 1958 study found no conclusive proof that patents confer a net societal benefit.24 James Bessen and Michael Meurer argue that patents hinder innovation by creating legal risks.25 Michele Boldrin and David Levine assert, “There is no empirical evidence that [patents] serve to increase innovation.”26 IP imposes massive costs—billions annually in legal fees, litigation, and compliance—while its benefits remain speculative.27 Utilitarianism’s slippery slope also invites ever-harsher IP regimes, with no logical limit.28

B. Deontological Arguments: Labor, Creationism, and Personality Theories

Deontological defenses often rely on labor or creationist theories, misapplying property concepts to ideas.

Locke’s Labor Theory: John Locke’s idea that mixing labor with a resource creates ownership is widely misunderstood. As I’ve argued, “Locke’s labor theory of property ruined political theory” by conflating labor with ownership.29 Creation is not an independent source of ownership; it is the transformation of already-owned materials. If I carve a statue from my marble, I own it because I owned the marble, not because I labored. If I carve stolen marble, my labor doesn’t grant ownership.30 Applying this to IP, creating an idea or invention does not make it ownable, as ideas are not scarce resources that can be homesteaded. A mother doesn’t own her child because she created it, nor does a vandal own a mural on another’s wall.31

Libertarian Creationism: Some libertarians, like Tibor Machan, argue that “intellectual stuff” is a prime candidate for property rights.32 This “creationist” view assumes creation inherently generates ownership, ignoring the scarcity requirement. Ideas are not rivalrous; creating one doesn’t make it ownable, just as creating a child doesn’t make it property.33 As I’ve noted, “IP is not property” because it lacks the rivalrous nature of true property.34

Personality Theory (Hegel): The Hegelian claim that creations embody one’s personality is unpersuasive. Ideas are not part of one’s body or identity in the way physical resources are. This theory is particularistic, granting creators special rights without a universalizable basis, and fails to justify overriding others’ property rights.35

C. Contractual Arguments: The Limits of Private Agreements

Some libertarians, including Rothbard in some contexts, suggest IP-like protections could arise via contracts, such as a no-copying clause in a book sale.36 This fails because contracts bind only the parties involved. If Brown sells a mousetrap to Green with a no-copying clause, third parties like Black, who learn the design independently, are not bound. Enforcing IP-like rights against third parties requires claiming ownership over information, which is not ownable.37 Moreover, information’s non-scarce nature undermines analogies to physical property. If Green steals Brown’s watch, Brown can reclaim it; but if Black uses Brown’s mousetrap design, he uses his own property, not Brown’s.38

IV. The Empirical Case Against IP

The costs of IP are staggering, while its benefits are dubious. Legal fees, litigation, and compliance costs run into billions annually, burdening businesses and consumers.39 The patent system is a bureaucratic nightmare, with inefficiencies and errors rife in patent offices, leading to frivolous patents and costly disputes.40 Studies consistently undermine the claim that IP fosters innovation. Michele Boldrin and David Levine’s Against Intellectual Monopoly shows that industries like software and pharmaceuticals thrived before strong IP protections, and patents often hinder rather than help innovation.41 James Bessen and Michael Meurer’s Patent Failure concludes that patents discourage innovation by creating legal risks and barriers to entry.42 Julio H. Cole’s analysis further highlights the lack of evidence for IP’s net benefits.43 Fritz Machlup’s 1958 report remains relevant: “No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society.”44

Real-world examples abound. The fashion industry, with minimal IP protection, is a hotbed of innovation, as designers compete to create new trends.45 Open-source software, unencumbered by patents, has driven technological advances, as seen in projects like Linux and Apache.46 These sectors demonstrate that competition, not monopoly, fuels creativity.

V. IP and the State: A Legislative Abomination

Patents and copyrights rely on centralized legislation and state enforcement, incompatible with anarcho-libertarian rejection of the state or minarchist skepticism of arbitrary intervention.47 They cannot arise in a decentralized, case-based legal system, as they require statutory monopolies that override natural property rights.

VI. Imagining an IP-Free World

Critics often demand a blueprint for innovation without IP, but as John Hasnas argues, this is a call for central planning.48 The state’s IP regime has preempted alternative institutions, but plausible models exist, based on current trends and historical examples:

  • Crowdfunding: Platforms like Kickstarter allow creators to raise funds directly from fans. Double Fine Productions raised over $1 million in a day for a new game, bypassing traditional publishers.49
  • Direct Sales: Comedian Louis C.K. earned $1 million in weeks by selling DRM-free videos online at a low price, proving that convenience trumps piracy.50
  • Reputation and Branding: Non-fiction authors, bloggers, and academics publish freely to build reputations, leading to speaking fees, consulting, or ad revenue. Novelists could use similar strategies, releasing early works to gain fans who pre-fund sequels.51
  • Concert and Experiential Models: Musicians profit from live performances, while movie theaters offer unique experiences (3D, premium sound) that home viewing can’t replicate.52

These models thrive despite piracy, which persists even under IP regimes. The solution to piracy is not censorship but better service—offering value that competitors can’t match. As Mike Masnick notes, “We’re living in the most creative time in history,” despite widespread file-sharing.53 Historically, industries like 19th-century fashion and early software development flourished without strong IP protection, demonstrating that competition drives innovation.54 In a free society, entrepreneurial creativity would find countless ways to profit, unhindered by state monopolies.

VII. Conclusion

Intellectual property is a mercantilist relic, incompatible with libertarian principles. It invades property rights, imposes artificial scarcity on non-scarce knowledge, and relies on state coercion. It fails empirically, with no clear evidence of net benefits, and its defenses—labor, creationism, personality, or contracts—collapse under scrutiny. Creation is not an independent source of ownership; it transforms already-owned resources. Knowledge, essential to human action, is non-ownable due to its non-scarce nature, making IP unnecessary and harmful. In a free society, innovation would thrive through competition, not monopoly. As Thomas Paine wrote, “A long habit of not thinking a thing wrong, gives it a superficial appearance of being right.”55 It’s time to abolish patent and copyright, liberating human creativity from state-imposed shackles.

Notes

  1. Murray N. Rothbard, The Ethics of Liberty (New York: New York University Press, 1998), 60. [Back]
  2. Hans-Hermann Hoppe, A Theory of Socialism and Capitalism (Auburn, Ala.: Mises Institute, 2010), 23. [Back]
  3. Stephan Kinsella, “Defending Argumentation Ethics,” in Legal Foundations of a Free Society (Papinian Press, 2023), ch. 7. [Back]
  4. Hoppe, A Theory of Socialism and Capitalism, 160–62. [Back]
  5. Stephan Kinsella, “Thoughts on the Latecomer and Homesteading Ideas,” Mises Economics Blog (Aug. 15, 2007). [Back]
  6. Ludwig von Mises, Human Action (Auburn, Ala.: Mises Institute, 1998), 93. [Back]
  7. Stephan Kinsella, “Intellectual Property Rights as Negative Servitudes,” C4SIF Blog (June 13, 2011). [Back]
  8. Stephan Kinsella, “Against Intellectual Property,” Journal of Libertarian Studies 15, no. 2 (Spring 2001): 1–53 (hereinafter AIP), 29. [Back]
  9. Stephan Kinsella, “The Patent, Copyright, Trademark, and Trade Secret Horror Files,” Mises Economics Blog (Feb. 3, 2010). [Back]
  10. Ibid. [Back]
  11. Karl Fogel, “The Surprising History of Copyright and The Promise of a Post-Copyright World,” Question Copyright (2006). [Back]
  12. Thomas Jefferson, Letter to Isaac McPherson (Aug. 13, 1813). [Back]
  13. Stephan Kinsella, “Ideas Are Free: The Case Against Intellectual Property,” Mises Daily (Nov. 23, 2010). [Back]
  14. Stephan Kinsella, “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” in Legal Foundations of a Free Society, ch. 9, n.31. [Back]
  15. Stephan Kinsella, “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” in Legal Foundations of a Free Society, ch. 11, notes 3, 5. [Back]
  16. Stephan Kinsella, “Nobody Owns Bitcoin,” StephanKinsella.com (April 21, 2021). [Back]
  17. Mises, Human Action, 93. [Back]
  18. Stephan Kinsella, “Another Way to Explain the Problem with IP: Resources v. Knowledge; Ownership v. Possession,” C4SIF Blog (Feb. 10, 2017). [Back]
  19. Stephan Kinsella, “Munger on Property Rights in Words and Information,” C4SIF Blog (Jan. 26, 2024). [Back]
  20. Stephan Kinsella, “The Problem with ‘Intellectual Property,’” C4SIF Blog (May 13, 2025). [Back]
  21. Kinsella, AIP, 30–31. [Back]
  22. U.S. Constitution, Art. I, Sec. 8, Cl. 8. [Back]
  23. Ronald M. Dworkin, “Is Wealth a Value?,” J. Legal Stud. 9, no. 2 (March 1980): 191–226. [Back]
  24. Fritz Machlup, An Economic Review of the Patent System (1958), 79–80. [Back]
  25. James Bessen & Michael J. Meurer, Patent Failure (Princeton University Press, 2008), 146. [Back]
  26. Michele Boldrin & David K. Levine, “The Case Against Patents,” J. Econ. Perspectives 27, no. 1 (Winter 2013): 3–22. [Back]
  27. Stephan Kinsella, “Reducing the Cost of IP Law,” Mises Daily (Jan. 20, 2010). [Back]
  28. Stephan Kinsella, “$30 Billion Taxfunded Innovation Contracts,” Mises Economics Blog (Nov. 23, 2008). [Back]
  29. Stephan Kinsella, “Locke’s Big Mistake,” KOL037, Austrian Student Scholars Conference (2010). [Back]
  30. Kinsella, AIP, 31–32. [Back]
  31. Pierre-Joseph Proudhon, “Les Majorats littéraires” (1868), in Primary Sources on Copyright (www.copyrighthistory.org). [Back]
  32. Tibor Machan, “Intellectual Property and the Right to Private Property,” Mises.org (2006). [Back]
  33. Kinsella, “Against Intellectual Property After Twenty Years,” in Legal Foundations of a Free Society, ch. 15. [Back]
  34. Stephan Kinsella, “IP is Not Property,” C4SIF Blog (April 10, 2025). [Back]
  35. Tom G. Palmer, “Are Patents and Copyrights Morally Justified?,” Harv. J. L. & Pub. Pol’y 13, no. 3 (Summer 1990): 817–65. [Back]
  36. Murray N. Rothbard, “Knowledge, True and False,” in The Ethics of Liberty. [Back]
  37. Kinsella, AIP, 51–55. [Back]
  38. Wendy McElroy, “On the Subject of Intellectual Property” (1981), C4SIF Blog (March 19, 2013). [Back]
  39. Julio H. Cole, “Patents and Copyrights: Do the Benefits Exceed the Costs?,” J. Libertarian Stud. 15, no. 4 (Fall 2001): 79–105. [Back]
  40. Stephan Kinsella, “There’s No Such Thing as a Free Patent,” Mises Daily (March 7, 2005). [Back]
  41. Michele Boldrin & David K. Levine, Against Intellectual Monopoly (Cambridge University Press, 2008). [Back]
  42. Bessen & Meurer, Patent Failure. [Back]
  43. Cole, “Patents and Copyrights: Do the Benefits Exceed the Costs?”. [Back]
  44. Machlup, An Economic Review of the Patent System. [Back]
  45. Kal Raustiala & Christopher Sprigman, The Knockoff Economy (Oxford University Press, 2012). [Back]
  46. Stephan Kinsella, “Innovations that Thrive Without IP,” StephanKinsella.com (Aug. 9, 2010). [Back]
  47. Stephan Kinsella, “Legislation and the Discovery of Law in a Free Society,” in Legal Foundations of a Free Society, ch. 13. [Back]
  48. John Hasnas, “The Myth of the Rule of Law,” Wis. L. Rev. 1995, no. 1 (1995): 199–234. [Back]
  49. Mike Masnick, “People Rushing to Give Hundreds of Thousands of Dollars,” Techdirt (Feb. 9, 2012). [Back]
  50. Kinsella, “Comedian Louis C.K. Makes $1 Million,” C4SIF.org (Dec. 22, 2011). [Back]
  51. Kinsella, “Conversation with an author about copyright,” C4SIF.org (Jan. 23, 2012). [Back]
  52. Kinsella, “Examples of Ways Content Creators Can Profit Without Intellectual Property,” StephanKinsella.com (July 28, 2010). [Back]
  53. Mike Masnick, “We’re Living In the Most Creative Time In History,” Techdirt (Feb. 12, 2012). [Back]
  54. Boldrin & Levine, Against Intellectual Monopoly, ch. 2. [Back]
  55. Thomas Paine, Common Sense (1776), Introduction. [Back]

From CHATGPT

The Case Against Intellectual Property

Stephan Kinsella

I. Introduction: Property Rights and the Problem of IP

Property rights, properly understood, are essential to peaceful human interaction. They solve the fundamental problem of conflict over scarce resources. But intellectual property (IP) law—including patent, copyright, trademark, and trade secret law—has been smuggled into the legal framework under the misleading label of “property,” despite its profound conceptual and moral flaws.

IP law does not emerge organically from private-law traditions, like tort or contract. It is a modern, statist construction that grants artificial monopolies over non-scarce things—ideas, patterns, expressions, and information—under the guise of “property.” The consequence is that it erodes genuine property rights, retards innovation, censors speech, and fuels corporatism. It is incompatible with a free society and a system of genuine private property.

II. The Libertarian Framework: Scarcity and Property

As Hans-Hermann Hoppe and others have shown, the very function of property rights is to allocate control over scarce resources, i.e., physical things that cannot be simultaneously used by multiple actors. Property rights are not about rewarding labor or incentivizing good behavior. They exist to solve conflict over scarce means of action.

From this foundation, libertarian theory affirms the following principles:

  • Self-ownership: Each individual is the exclusive owner of their own body.
  • Original appropriation: The first user of an unowned, scarce resource becomes its owner by embordering or transforming it.
  • Contractual transfer: Ownership can be transferred by voluntary agreement.
  • Rectification: Property rights can be transferred to compensate for torts.

These four principles form the basis for all property claims. They presuppose scarcity. They also exclude IP, which concerns not scarce goods, but universalizable patterns of information.

See: Kinsella, Legal Foundations of a Free Society (2023), Part IV, Chapters 14–15; How To Think About Property (2019).

III. What IP Actually Is: State-Granted Negative Servitudes

IP rights, in practice, are nonconsensual negative easements over others’ physical property. A patent or copyright gives the holder the legal ability to stop others from using their own tangible property as they see fit: from assembling molecules in a certain way (patent), to printing certain arrangements of words or pixels (copyright).

In a just system, a restrictive covenant or servitude is legitimate only if it is consensually agreed to—like a homeowner voluntarily agreeing not to build above a certain height. But IP law imposes such servitudes on everyone, without their consent, backed by state violence.

See: Kinsella, Intellectual Property Rights as Negative Servitudes (2011); The Problem with Intellectual Property (2025), Part III.A.2.

IV. The Myth of Creationism and the Labor Theory

IP advocates often claim that creation or labor is the source of ownership. This Lockean notion has misled generations of libertarians into thinking that the fruits of one’s labor ought to be owned.

But as shown in Locke’s Big Mistake and elsewhere, creation is not an independent source of ownership. Creation is the transformation of already-owned materials. Homesteading is the source of ownership; creation merely rearranges what is already owned.

See also: Legal Foundations, Part IV, Chapter 15, Section IV.C; The Problem with IP, Part III.A.1.

V. Human Action, Emulation, and the Role of Ideas

Mises explains that action requires ends, means, and knowledge. Knowledge and ideas are essential to action but are not themselves means. They are not scarce. Two people can use the same idea at once. Two bakers can follow the same recipe.

As I explain in Ideas Are Free and in The Problem with IP, information is an input into action, but not the object of property. Material progress is made over time because information is not scarce. It can be infinitely multiplied, learned, taught, and built on. There is no need to impose artificial scarcity on ideas to make them more like physical resources.

VI. Utilitarianism Fails: Incentives and the Burden of Proof

Even if one adopts a utilitarian framework, IP still fails. The empirical case for IP is extraordinarily weak.

  • There is no clear evidence that patent or copyright increase net innovation.
  • The costs of the system (litigation, censorship, monopolies, deadweight loss) are enormous.
  • Much innovation occurs despite, not because of, IP.

See: Kinsella, The Overwhelming Empirical Case Against Patent and Copyright (2012); Legal Scholars’ Thumbs Down on IP (2012).

See also: Boldrin & Levine, Against Intellectual Monopoly (2008); Vaidhyanathan, Copyrights and Copywrongs (2001).

VII. The Structure of IP Law: Statism and Censorship

Patent and copyright law originated not in property principles, but in monopolistic and censorious practices. The Statute of Monopolies (1623) and the Statute of Anne (1710) were not efforts to define rights, but to restrict the freedom of others to publish and compete.

These laws have metastasized. Copyright terms have ballooned from 14 years to life plus 70 years; patent law has become an arcane regulatory morass used as a weapon by entrenched players.

See: The Problem with IP, Part III.B and Part IV.5; Legal Foundations, Chapter 14, Section III.E.

VIII. Against the Confusion of Contract and IP

Some attempt to justify IP by contract: if I agree not to disclose a trade secret, or not to copy your software, then you have a right to enforce that agreement.

This is true, but it is a matter of contract and privity, not property. You can bind me not to use my own property in certain ways, but you cannot bind third parties.

See: The Problem with IP, Part III.C; Legal Foundations, Chapter 14, Section III.C.

IX. What About Attribution, Fraud, and Confusion?

Fraud and misrepresentation are real torts. But IP law is not needed to combat fraud.

  • Plagiarism is dishonesty, but not a property crime.
  • Trademark confusion can be addressed under fraud or contract law.

See: Kinsella, Defamation as a Type of Intellectual Property (2024); Legal Foundations, Chapter 14, Section III.D.

X. A World Without IP

In a free society, there would be no patent or copyright. Information would flow freely. Creators would still create. Innovation would flourish.

Business models would adapt, as they already do in industries like fashion, cuisine, software, and comedy—all largely untouched by IP.

See: The Problem with IP, Part IV; Legal Foundations, Chapter 14, Section IV.

XI. Conclusion: Repeal, Don’t Reform

IP law is a deviation from the principles of property, contract, and justice. It is not a quirk to be reformed. It is a fundamental assault on liberty, innovation, and the free market. It is a form of state-granted monopoly that criminalizes learning, emulation, and free expression.

The only libertarian position is the abolition of IP. Not reform. Not “balance.”

Property rights are for scarce resources. Ideas are not scarce. They are not ownable.

Ideas are free.

Bibliography and Resources

Stephan Kinsella is a patent attorney and libertarian theorist in Houston, Texas. He is the author of Against Intellectual Property, Legal Foundations of a Free Society, and The Problem with Intellectual Property. More at c4sif.org and stephankinsella.com.

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The Center for the Study of Innovative Freedom (C4SIF) is dedicated to building public awareness of the manner in which so-called “intellectual property” (IP) laws and policies impede innovation, creativity, communication, learning, knowledge, emulation, and information sharing. We are for property rights, free markets, competition, commerce, cooperation, and the voluntary sharing of knowledge, and oppose IP laws, which systematically impede or hamper innovation. IP law should be completely and immediately abolished.

We provide news commentary and analysis and scholarly resources from our unique pro-property, pro-market, pro-innovation perspective.

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The Problem with Intellectual Property

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Classical Liberals, Libertarians, Anarchists and Others on Intellectual Property

The Overwhelming Empirical Case Against Patent and Copyright

Defamation as a Type of Intellectual Property

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