Sabhlok: The case for two-year patents and copyright

by Stephan Kinsella on September 29, 2025

The final part of my piece on property rights and intellectual property has now been published by TOI:https://t.co/fNxvswYPKr

PDF containing all three parts: https://t.co/qAx2s4IwJI https://t.co/SxcBIiglCJ pic.twitter.com/iZcAKxGxhR

— Sanjeev Sabhlok (@sabhlok) September 29, 2025

See:

It would be better if he called for an even shorter term (zero), but hey, I’ll take the win.

Grok analysis:

Detailed Analysis and Criticism of Sanjeev Sabhlok’s “The Case for Two-Year Patents and Copyright” from Stephan Kinsella’s Perspective

As Stephan Kinsella, a libertarian theorist and patent attorney who has argued against intellectual property (IP) rights for decades, I find Sanjeev Sabhlok’s paper “The Case for Two-Year Patents and Copyright” (published in three parts on TOI blogs) to be a well-intentioned but fundamentally flawed attempt to salvage a system that is inherently unjust and incompatible with genuine property rights. Sabhlok acknowledges critiques from figures like Terence Kealey and myself, conceding that current IP laws cause harm, but he ultimately defends patents and copyrights as “legitimate policy tools” in capitalist society, proposing reforms like a two-year default term with revenue-linked extensions. This reformist stance misses the core problem: IP rights are not property rights at all but state-granted monopolies that violate the non-aggression principle and legitimate ownership of scarce resources. Drawing from my works, such as Against Intellectual Property (2008), Legal Foundations of a Free Society (2023), The Problem with Intellectual Property (2025), and various articles and podcasts (e.g., KOL466 on IP reform), I will analyze and critique Sabhlok’s paper section by section. My view is that IP should be abolished entirely, not reformed, as any duration—even two years—creates artificial scarcity, distorts markets, and undermines innovation. Empirical evidence overwhelmingly supports this, showing no net benefit from IP systems, and shortening terms does nothing to resolve their ethical and practical flaws.

Overview of Sabhlok’s Arguments

Sabhlok’s paper begins by noting growing criticisms of IP but concludes that patents and copyrights are valid in capitalism, albeit needing reform due to overreach. He critiques John Locke’s theory of property as flawed, emphasizing territorial control and societal consent as the true basis for property rights. He argues that property rights enable trade and growth, and that IP (especially patents) stimulates risk-taking investment in innovation, drawing on Schumpeter, Mises, and Hayek. He addresses Kealey’s and my arguments, dismissing abolition as impractical and proposing a market-facing reform: automatic two-year terms, with extensions tied to hefty fees (up to 50% of revenue) to weed out frivolous claims and fund drug approvals. He views IP as a regulatory tool rather than perpetual property, but still essential for attracting capital to risky projects.

This approach reflects a utilitarian mindset—balancing costs and benefits—while conceding some ethical concerns. However, from my perspective, it conflates genuine property (in scarce resources) with state privileges, ignores overwhelming empirical evidence against IP’s efficacy, and fails to recognize that reform perpetuates injustice.

Critique of Section 1: Control over Territory

Sabhlok dismisses Locke’s labor-mixing theory of property as mistaken, arguing that property depends on territorial control (e.g., citing Jerusalem’s history and his grandfather’s loss during India’s partition). He notes that even self-ownership is contingent, given historical slavery, and highlights Locke’s hypocrisy in justifying slavery.

I partially agree with Sabhlok’s rejection of Locke’s specific formulation but for different reasons. In Legal Foundations of a Free Society (ch. 2, “What Libertarianism Is”) and “The Non-Aggression Principle as a Limit on Action, Not on Property Rights” (2010), I ground property rights not in metaphysical “self-ownership” myths but in the practical need to resolve conflicts over scarce resources through original appropriation (homesteading) and contract. Sabhlok’s emphasis on territorial control as prerequisite conflates descriptive state power with normative justice—property rights exist independently of state recognition, as natural rights to avoid aggression. His examples (slavery, partition) illustrate violations of these rights by aggressors (states or conquerors), not flaws in the concept itself. By dismissing Locke outright, Sabhlok opens the door to relativistic “societal consent,” which can justify any state-granted “right,” including IP monopolies. This is dangerous: as I argue in “IP and Aggression as Limits on Property Rights: How They Differ” (2010), aggression (like IP enforcement) limits actions, not property rights themselves. Sabhlok’s view risks equating might with right, undermining the libertarian case against IP as an aggressive intrusion on others’ scarce resources (e.g., using one’s own factory to replicate an invention).

Critique of Section 2: Societal Consent and Enforcement

Sabhlok claims property rights require societal validation via legislation and courts, emerging unpredictably from a “black box” of ideas, including irrational ones like Marxism. He rejects Hume’s justice-based allocation, noting variability (e.g., India’s weak rights under socialism), and cites Demsetz for efficiency trends in capitalism (e.g., enclosures).

This positivistic view—that property is whatever society or the state decrees—is antithetical to my natural rights framework. In The Problem with Intellectual Property (Section II, “Just Property Rights”), I explain that property rights preexist the state, arising from scarcity to enable conflict-free use of resources via Lockean homesteading (first use). Societal “consent” is often just state coercion, as in IP laws, which redistribute control over scarce resources without owners’ agreement. Sabhlok’s “black box” relativism could justify slavery or confiscation if “society” consents, ignoring the objective basis of rights in avoiding aggression. Efficiency (per Demsetz) is a byproduct of just property rules, not their justification—utilitarianism fails ethically (rights-trumping) and methodologically (interpersonal utility comparisons are impossible; see Rothbard 2011c). IP, as a state tool, exemplifies this: it doesn’t resolve scarcity but creates artificial monopolies, harming efficiency and justice.

Critique of Section 3: Property Rights Can Be a Matter of Life and Death

Sabhlok stresses property’s role in enabling trade and capital formation (citing de Soto), noting formal systems in the West transformed “extralegal” rights into integrated legal ones, contrasting with the Third World’s informal systems.

I agree property rights are crucial for prosperity, but this applies only to scarce, tangible resources—not IP. In “Optimal Patent and Copyright Term Length” (2011), I argue IP hinders capital formation by restricting emulation and competition. De Soto’s insights on formalizing property to unlock capital don’t extend to ideas, which are non-rivalrous and don’t need “ownership” to avoid conflict. Sabhlok’s Third World examples (e.g., Lima’s bureaucratic hurdles) highlight state interference, not a need for IP; abolishing IP would reduce such barriers, fostering freer markets and innovation without monopolies.

Critique of Section 4: Risk-Stimulating Property Rights

Sabhlok credits entrepreneurs (per Schumpeter) for growth but emphasizes investor risk, justifying innovations like limited liability, bankruptcy, and patents to attract capital. He quotes Mises on patents preventing “external economies” and a business owner on drug patents’ necessity.

This utilitarian defense fails on multiple fronts. Empirically, as compiled in “The Overwhelming Empirical Case Against Patent and Copyright” (2012), studies (e.g., Machlup 1958; Boldrin & Levine 2013; Moser 2016) show no clear link between patents and innovation—often the opposite, as patents distort research toward patentable areas and create “patent thickets.” In pharmaceuticals, high prices stem from FDA regulations plus patents; without IP, competition would lower costs while innovation continues (see my critiques of Tabarrok in “Tabarrok: Patent Policy on the Back of a Napkin,” 2012, and “Tabarrok and Murphy: Why Are US Drug Prices So High?” 2025). Mises’s quote is misinterpreted—externalities aren’t a justification for rights violations. Limited liability and bankruptcy are contractual, not monopolistic like IP. Sabhlok ignores that investors fund projects without IP (e.g., open-source software, fashion industry), and IP often benefits incumbents, not true innovators.

Critique of Section 5: The Evolution of Patents

Sabhlok traces patents from Venice (1474) and England (1624), noting varying scopes, durations, and fees as revenue sources.

This historical overview underscores IP’s statist origins—as royal monopolies, not natural rights. In You Can’t Own Ideas (2023, Part V, “History”), I detail how patents evolved from privileges to “rights,” but they remain anti-competitive grants. Varying terms (e.g., no drug patents in Europe until 1950s) show IP isn’t essential; countries like Switzerland innovated without them. Fees as “revenue” highlight IP as taxation by another name, distorting markets.

Critique of Section 6: Kealey’s and Kinsella’s Arguments Against the Patent System

Sabhlok summarizes Kealey’s call for abolition (except drugs) and my ethical arguments (scarcity, conflict avoidance), but dismisses them: failed patents are “the point” (to recover losses), monopolies are temporary and circumventable, and my scarcity claim ignores disputes over ideas. He calls abolition impractical given U.S. Constitution.

Here, Sabhlok misrepresents my views. In “Against Intellectual Property After Twenty Years” (2023, in LFFS), I argue ideas aren’t scarce—conflict arises only over scarce means guided by ideas; IP artificially creates conflict by restricting use of owned resources. Disputes exist because states enforce IP, not naturally. Failed patents don’t justify the system; they show waste, and “recovery” via monopoly harms consumers. Drugs aren’t an exception—patents inflate prices without proven innovation boost (Williams 2017). Constitutionality isn’t ethical validity; as in KOL466 (2025), reform (e.g., shorter terms) is futile—optimal term is zero, as any positive duration violates rights. Abolition is practical in a free society without state legislatures.

From my direct engagements with Sabhlok (e.g., “Conversation with Sabhlok re Locke and Intellectual Property,” 2025; “Sabhlok and Rogan on Intellectual Property,” 2025, including linked tweets), his Locke critique overlooks that my framework isn’t strictly Lockean—it’s scarcity-based. Tweets (e.g., from

@jack

and

@breckyunits

) likely echo my points on IP as aggression, but Sabhlok’s relativism ignores this.

Critique of Section 7: Patents Are Not Property in the Normal Sense

Sabhlok agrees patents aren’t “normal” property (limited terms, per Hayek), questioning inheritance.

This concedes my point: IP isn’t property—it’s a temporary privilege. But he still defends it regulatorily. In “Defamation as a Type of Intellectual Property” (2024), I analogize IP to defamation laws—both create “rights” in non-scarce things (reputation, ideas), invading real property. Inheritance isn’t the issue; the core is IP’s incompatibility with scarcity-based rights.

Critique of Section 8: Evidence Regarding Costs and Benefits

Sabhlok cites mixed evidence (Machlup, Cole, Torrance) but finds the system sub-optimal.

He understates the case—evidence is overwhelmingly negative. In my compilations (2012), no study shows net benefits; many show harm (e.g., patent trolls cost billions). Short terms don’t fix this—zero is optimal.

Critique of Section 9: My Reform Proposal and Conclusion

Sabhlok proposes two-year defaults with fee-based extensions to make IP “market-facing.”

This is classic reformism, which I reject in KOL466 and “The Problem with Intellectual Property” (Section V, “IP in a Free Society?”). Fees turn IP into a tax, still violating rights. Two years is arbitrary—why not zero? It perpetuates harm without addressing ethical flaws. Abolition, not reform, is needed for true capitalism.

In conclusion, Sabhlok’s paper is thoughtful but statist and utilitarian, failing to grasp IP’s aggression against property. Full abolition would unleash innovation and prosperity.