Nozick on Intellectual Property

by Stephan Kinsella on February 11, 2026

Classical Liberals, Libertarians, Anarchists and Others on Intellectual Property

Nozick was bad on IP: he was confused and weakly in favor of some form of patent law; very diletanttish reasoning, as often is the case for Nozick. See William Fisher, “Theories of Intellectual Property” (2), in Stephen Munzer, ed., New Essays in the Legal and Political Theory of Property (Cambridge University Press, 2001), text at n.5. Also Robert Nozick, Anarchy, State, and Utopia (Oxford: Basil Blackwell, 1974), p. 182: “independent inventors, upon whom the burden of proving independent discovery may rest, should not be excluded from utilizing their own invention as they wish (including selling it to others).” On Nozick’s dilettantism and “razzle-dazzle,” see Kinsella, Afterword to Hoppe’s The Great Fiction, Second Expanded Edition, and Hoppe, Murray N. Rothbard and the Ethics of Liberty.

See also Otto Lehto, “A point so fundamental: Nozick on intellectual property,” Critical Review of International Social and Political Philosophy (11 Feb 2026); Lehto’s tweet.

Abstract:

In Anarchy, State and Utopia, Nozick defends a libertarian theory of property rights under a minimal state. Whether libertarian theory supports or excludes intellectual property (IP) rights remains controversial. This paper shows that, although Nozick only mentions intellectual property (IP) a few times in the book, these discussions turn out to be surprisingly pivotal for his arguments. Indeed, Nozick calls IP rights a ‘fundamental’ issue for libertarian theory. So, it is important to analyse the structural, methodological, and substantive implications of what Nozick says (and does not say) about IP rights. I will show that in Part 1 of ASU, IP rights illustrate the non-ideal problem of persistent disagreement, which shows that the minimal state cannot simply administer justice; it must also tackle disagreements about the content of justice. In Part 2 of ASU, Nozick discusses patents to illustrate the limits of the Lockean Proviso. His embrace of counterfactual reasoning opens the surprising possibility that even property rights in physical resources may be up for time limitations, inheritance laws, or other proviso-motivated regulations. Overall, Nozick’s discussion of IP rights illuminates the somewhat neglected role of non-ideal libertarian theory, epistemic indeterminacy, counterfactual reasoning, and pragmatic, ‘rule-of-thumb’ remedies in ASU. In the final analysis, Nozick does not develop a fully coherent picture of IP rights, and his proposed solution, putting time limits on patents, seems somewhat ad hoc. Although IP rights play an underappreciated role in the book, his discussion raises more questions than it answers. The epistemically humble libertarian (or liberal) should approach the regulation of IP rights, and other thorny issues of real-world property-ownership, with an open mind.

What is interesting here about Lehto’s paper (admirably published online!)¹ is that it shows how Nozick’s half-based support for IP undermines his case for normal property rights. Again quoting the abstract:

This paper shows that, although Nozick only mentions intellectual property (IP) a few times in the book, these discussions turn out to be surprisingly pivotal for his arguments. Indeed, Nozick calls IP rights a ‘fundamental’ issue for libertarian theory. … In Part 2 of ASU, Nozick discusses patents to illustrate the limits of the Lockean Proviso. His embrace of counterfactual reasoning opens the surprising possibility that even property rights in physical resources may be up for time limitations, inheritance laws, or other proviso-motivated regulations.

In other words, Nozick’s mistake and weak views on IP—making the mistake of treating IP as “another type of” property right² —cannot help but undermine property rights—something Tom Bell has also suggested.³ Instead of saying that natural property rights last forever, so IP rights must too⁴—in other words, like things must be treated alike—his support of IP has to imply that just as IP rights must be time limited, so should regular property rights.

Overall, Nozick’s discussion of IP rights illuminates the somewhat neglected role of non-ideal libertarian theory, epistemic indeterminacy, counterfactual reasoning, and pragmatic, ‘rule-of-thumb’ remedies in ASU. In the final analysis, Nozick does not develop a fully coherent picture of IP rights, and his proposed solution, putting time limits on patents, seems somewhat ad hoc.

Since Nozick, like Rand,⁵ viewed IP rights as a “fundamental” issue for libertarian theory, it is important to get this right and not be half-assed or ad hoc about it! Otherwise you undermine the case for property rights, the most fundamental aspect of libertarian theory!⁶