[Aug. 9, 2025]
Dear Mr. Kinsella,
I have been touching up on some of the anti-IP arguments that have been raised by libertarian theorists and you alike.
Specifically, I think the argument goes like this.
1. Property Rights are sensible for scarce (aka rivalrous resources.)
2. scarcity matters because without it, no conflict over use can arise.
3. Intellectual creations such as ideas and expressions are not scarce because multiple people can use them without depriving others.
4. IP is therefore conceptually distinct from physical property insofar that it cannot be justified with the same principles.
Now that I’ve laid out what I think is the basic argument (you can correct it if you see anything wrong here), I think that now is the appropriate time to head into my question.
I generally accept that scarcity shows when conflicts arise, but I’m skeptical of it being a hard limit on property rights as most libertarians would say. If the reason for property rights is to ensure coordination of conflicting plans, why exactly are we stopping at physical objects? As far as I know, as it pertains to copyright / attribution disputes, courts sort of already act as de facto arbitrators in such intangible disputes, so it’s conceptually similar to how courts arbitrate already over physical property. I think then that there’s maybe potential for strengthening the anti-IP approach. The scarcity only rule seems somewhat arbitrary because conflicts over ideas could potentially warrant a similar protection. Essentially, scarcity is only a criterion for a very specific set of property rights theory. So we can’t stop at simply non-rivalrous = no property rights unless we explain why these sorts of conflicts shouldn’t count. What would your approach be to this specifically?
Now as that is outlined, I think that libertarians would now have to show:
1. That non-rivalrous goods can’t produce the same kind of rights-worthy conflict as rivalrous goods
2. or introduce another principle that limits property rights to rivalrous goods even if other conflicts exist beforehand.
I look forward to your response, and thank you in advance, Mr. Kinsella.
***
Kinsella (Sep. 15, 2025):
I don’t have time right now to reply in detail, but I am happy to discuss with you after my trip to Turkey tomorrow, perhaps by zoom. In the meantime I suggest you read the following and if you still have questions we can have a zoom talk.
- The Problem with Intellectual Property
- Intellectual Property Rights as Negative Servitudes
- The Structural Unity of Real and Intellectual Property
- KOL471 | “What Is Property? And What Is Not? — Part 1,” Capitalism & Morality (Vancouver)
E.g.: A Succinct Case Against IP: Libertarians Have No Excuse Anymore: Shame on You:
“Your mistake is you think we can have property rights to material resources, determined this way—and intellectual property rights too. You think this because you have not thought deeply about the nature of property rights, and you do not fully understand what IP rights are and how they operate, so you do not understand that this is impossible.
You are very much like the economic illiterate who does not understand why the government doesn’t just print more money to help the poor. He doesn’t get that this dilutes the purchasing power of existing money so only redistributes wealth; it does not create wealth–because money is not wealth. He doesn’t get that you don’t get something for nothing.
You are very much like the welfare statist who believes in negative rights like the right not to be murdered or stolen from and the positive rights to food, housing, education. He does not understand nothing is for free. He does not understand that positive rights come at the expense of negative rights. You cannot have both.”
https://stephankinsella.com/as_paf_podcast/kol177-rethinking-ip-lecture-6-mises-academcy-2011/
I’m in favor of it all. David Kelley explicitly says this in a little debate with me in 1995. It’s on my website. It’s a letter to IOS. It’s on StephanKinsella.com/publications. It’s somewhere on that page under the IP section. But in any case, he says scarcity is one reason we need to have property rights, but it’s not the only reason. If you create something of value or create a value, then you can own that too. But you can’t just own that too. This is just – this is very similar to the arguments of socialists and lefties who advocate all these positive rights like a right to welfare or a right to a job or a right to social security or a right to healthcare or a right to an education. They just – they say, well, we’re just adding rights, the more rights, the better.
00:28:13
But of course every one of these rights is enforced in terms of the physical world by taking someone else’s physical money or property from them or forcing them to work to support this. So all these rights always come at the expense of real rights in scarce resources, so they can’t have it both ways. They have to choose, and I’m afraid they’re choosing when they say all rights are – all property rights are intellectual property rights. They’re choosing the IP side, and that way madness lies. You have people like Galambos who say that’s the primary property. If they have their way and they would extend property rights on every aspect of every idea, all information, and it was made perpetual, then none of us could move. We would just all die. We would all starve to death. We would strangle the world in a nettle of IP sort of tendrils or something.
KOL241 | Dave Smith’s Part of the Problem Show: Libertarian Property Theory: see transcript at 1:15:05:
1:15:05
It’s very similar to what I pointed out before, the same reason that libertarians oppose monetary inflation by the government and we oppose what’s called positive rights.
1:15:17
Liberals and mainstream people think, well, we believe in the rights to security and etc., but we also believe in the right to welfare and education and housing.
1:15:26
We libertarians would say, no, it’s a positive right. It’s got to be provided by someone, and it’s got to come at the expense of negative rights that we have.
1:15:35
We know that. And if you have money and the government just prints more, hey, what’s wrong with the government just giving free money to people?
1:15:41
Because it dilutes the purchasing power of the existing money and makes us all poor. It’s stealing our purchasing power.
1:15:47
And exactly in the same way is when the government creates other rights, like intellectual property, it’s taking away and eating at the existing allocation of property rights in physical things.
1:15:58
You can never have physical property rights and intellectual property.
1:16:04
The intellectual property is just a way of shifting these other ownership rights, and it’s basically stealing it under the guise of calling it property, which is just obscene.
1:16:14
You call it intellectual property so that the act of theft there is masked or distorted.
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