Gamrot, A Critique of Moore’s Intellectual Property Theory

by Stephan Kinsella on April 26, 2026

Speaking at APEE IP Panel in Guatemala: as well as a pro-IP paper by Adam Moore, “Five Arguments for Intellectual Property,” who has written fairly in assessing both anti- and pro-IP arguments in the past”
- Stanford Encyclopedia of Philosophy on Intellectual Property Theories
Hettinger v. Paine: Justifying Intellectual Property Rights
- Moore is author of Intellectual Property and Information Control: Philosophic Foundations and Contemporary Issues (Routledge, 2001; pdf), Intellectual Property: Moral, Legal, and International Dilemmas, ed. (Lanham, Md.: Rowman & Littlefield, 1997; pdf; Introduction), and the forthcoming Intellectual Property: Moral and Legal Foundations
Moore, ed., Adam D. (1997). Intellectual Property: Moral Legal and International Dilemmas. New York: Rowman & Littlefield. https://perma.cc/L78R-EMFS
Moore, Adam D. and Kenneth Einar Himma (2011). “Intellectual Property,” in Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy. Stanford University. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1980917; https://plato.stanford.edu/entries/intellectual-property/
Adam D. Moore, Intellectual Property and Information Control: Philosophic Foundations and Contemporary Issues (New Brunswick (U.S.A.) and London (U.K.): Transaction Publishers, 2001 [New York and London: Transaction Publishing, 2004])

Wojciech Gamrot, “A Critique of Moore’s Intellectual Property Theory,” The Journal of Value Inquiry (2025).

From the Introduction:

Several authors try to provide a moral justification for intellectual property (IP) rights. A popular strand of these theories refers to the philosophy of John Locke, and portrays IP as a natural right. Among them, the writings of Adam D. Moore have gained substantial popularity. His theory is presented in several widely quoted works. It was criticized by numerous authors.^Footnote1 However its ontological underpinnings draw little attention. This paper aims to investigate their validity. The discussion focuses on a detailed exposition of the theory presented in Moore’s (2004) book.^Footnote2 Some insights are also drawn from his other works.^Footnote3 In the second section the theory is briefly sketched. In the third section preliminary remarks regarding the justification of natural rights are offered. In the next three sections ontological assumptions of Moore’s theory are identified and challenged. Two objections are stated. They independently lead to the formulation, in the seventh section, of a competing ontology that is superior to Moore’s metaphysics. In the following five sections its implications are explored. It is argued, against Moore, that humans cannot possess, use, or labor on types. In the remaining sections these findings are confronted with Moore’s IP justification. It is demonstrated that his theory does not justify rights to types, and that any such rights are meaningless.

Kinsella, “The Problem with Intellectual Property,” in Handbook of the Philosophical Foundations of Business Ethics, 2nd ed., Christoph Lütge & Marianne Thejls Ziegler, eds. (Springer, forthcoming 2026; Robert McGee, section ed.)
Intellectual Property Rights as Negative Servitudes
Classical Liberals, Libertarians, Anarchists and Others on Intellectual Property
Against Intellectual Property After Twenty Years: Looking Back and Looking Forward
Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”
Mossoff: Why Should Business Leaders Care About Intellectual Property (Objectivism)
Conversation with Sabhlok re Locke and Intellectual Property as a Natural Right or Property Right
The Structural Unity of Real and Intellectual Property
The “Ontology” Mistake of Libertarian Creationists
Objectivists: “All Property is Intellectual Property”
A Recurring Fallacy: “IP is a Purer Form of Property than Material Resources”
Stephan Kinsella, “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), Part IV.I. In particular, references in notes 75-76 et pass.
A Recurring Fallacy: ‘IP is a Purer Form of Property than Material Resources’”
KOL229 | Ernie Hancock Show: IP Debate with Alan Korwin: “Korwin’s Defense and Departure (49:59–1:17:42) … Korwin doubles down, arguing that copyright is a natural right, more real than physical property because it’s a unique creation.”
Richard Epstein on “The Structural Unity of Real and Intellectual Property” (Mises 2006)
Classifying Patent and Copyright Law as “Property”: So What?

See report below from Grok. I keep trying to avoid “ontology” which I regard as a mostly a useless and confused field, but find I need to get into it to yet again dismantle confused ontology-based tendentious arguments from people like Tibor Machan, Schulman, Randians like Moore and others, and so on. Sigh. Do I have to do everything? Figure out ontology, free will/dualism, and so on?

Summary from Grok:

Summary Report: Wojciech Gamrot, “A Critique of Moore’s Intellectual Property Theory” (Journal of Value Inquiry, 2025)

Overall Paper Summary

Gamrot delivers a focused, systematic critique of Adam D. Moore’s influential Lockean natural-rights justification for intellectual property (IP). Moore treats IP as natural rights to immaterial “types” (synonymously: intellectual works, products, creations, ideas/collections of ideas) distinct from their physical “tokens” (embodiments/expressions). He grounds these rights in a two-step process: (1) creation/possession/labor generates prima facie claims to control the type; (2) the Lockean proviso (“enough and as good left for others,” measured by material standing) is satisfied, yielding full ownership (including perpetual rights for some types, with independent-inventor exceptions). Moore claims this vindicates existing IP regimes (copyright, patents, trademarks) as enforcement of natural rights to types.

Gamrot first insists that any natural-rights theory must derive from the pre-institutional “state of nature,” be intersubjectively ascertainable, grounded in empirically verifiable brute facts, and superior to rival ontologies (no appeal to legal fictions or positive-law proclamations). He then identifies Moore’s core ontological commitments (types as abstract, creatable, possessable, usable, and laborable objects) and subjects them to two independent objections:

Anti-creationist objection: Types cannot be created ex nihilo. Reasons include: (a) lack of evidence that a type did not pre-exist; (b) the individuation problem (which exact type is created by a given token?); (c) inconsistency with type indestructibility (if creatable, why not destroyable?); (d) relativity of simultaneity (Einstein): two independent “creations” of the same type can have conflicting temporal orderings in different reference frames, so neither creates it. Types exhibit uniqueness (like numbers, theorems, laws of nature: equal but “distinct” instances are the same entity; parsimony forbids multiplying them).
Nominalist objection: Abstract objects may not exist at all (citing Goodman/Quine et al.). Moore offers no defense of their existence.

Both objections converge on a superior “modest ontology”: humans cannot create, alter, destroy, possess, use, or labor on types—only on material tokens. “Creation” is reinterpreted as evaluative selection and arrangement of matter into tokens (master artifacts). Types (if they exist) are beyond causal reach, like distant galaxies: awareness/recognition is possible, but control is not. This framework is more parsimonious, avoids the individuation problem, resolves the non-rivalrousness puzzle (we use tokens, not types), and better fits empirical reality without Moore’s unverifiable metaphysics.

Confronting Moore directly:

Locke’s proviso offers no support for type appropriation (types are non-rivalrous and unusable; Shiffrin’s objection is strengthened).
No prima facie claims arise to types (labor/possession/creation target tokens).
Rights to types are meaningless (uncontrollable; none of Honoré’s “bundle of rights” apply). Type ownership is self-contradictory and pointless.

IP law, Gamrot concludes, is not rights to types but restrictions on token production/use/possession—i.e., a fragmentation/redistribution of tangible property rights. Moore’s type-token conflation violates non-contradiction and merely disguises this. The modest ontology exposes the equivocation; Moore’s theory fails entirely.

Does Gamrot Address the Contention that Locke Favored IP as a Natural Right?

No. Gamrot does not engage the historical or interpretive contention (sometimes advanced by pro-IP Lockeans such as Adam Mossoff) that Locke himself viewed copyright, patents, or IP as natural rights/property rights. The paper treats Moore as one of “a popular strand” of theorists who invoke Locke to portray IP as a natural right, and it notes that Moore “appeals to the authority of John Locke” and “invokes [him] relentlessly.” Gamrot’s analysis is strictly limited to showing that Locke’s own property theory—especially the rivalrousness precondition for appropriation from the commons and the proviso—provides no support for rights to non-rivalrous, non-usable abstract types. Under the modest ontology this failure is even more decisive: there is nothing to appropriate or exclude others from.

What Does Gamrot Say About the Specific Issues Kinsella Focuses On?

Gamrot does not directly address or cite the following arguments that Kinsella critiques in the linked posts:

Richard Epstein’s “structural unity of real and intellectual property” thesis;
the recurring fallacy that IP is a “purer form of property than material resources” (or “primary”/“more sacred”);
Objectivist claims that “all property is intellectual property” (Mossoff et al.); or
specific ontological defenses by Tibor Machan (or similar creationist views treating intentionally created intangibles/patterns/identities as independently ownable ontological entities).

However, Gamrot’s modest ontology and anti-creationist arguments constitute a direct, rigorous refutation of the ontological premises underlying all of them. He demonstrates that abstract types cannot be created ex nihilo, possessed, used, or labored upon—only material tokens can. This dismantles:

any “creationist” ontology that treats ideas/works as new, ownable metaphysical entities (the exact “ontology mistake of libertarian creationists” Kinsella identifies);
claims that IP is structurally or ontologically unified with (or purer than) real property, since IP rights are shown to be meaningless as rights to types and amount instead to non-consensual restrictions on already-owned tangible resources;
the elevation of IP via “pure intellect/creation” metaphors, as Gamrot reinterprets artistic/scientific work as mere evaluative selection and material rearrangement (no new abstract entity is brought into existence).

Relevance to the Ontology Work of David Koepsell, Barry Smith, or Kinsella’s Critiques of Ontological Arguments for IP (e.g., Machan)

David Koepsell: Gamrot cites Koepsell favorably and substantively multiple times (e.g., on the methodology of natural rights justification, the need for empirically verifiable brute facts in the state of nature, and the type-token distinction in formal IP analysis). This places Gamrot squarely in dialogue with Koepsell’s ontological work on IP. Koepsell’s 2000 book The Ontology of Cyberspace (which Gamrot builds upon via citations and shared terminology like “commonsense ontology”) is directly relevant: it critiques the “naive ontology” of IP law (idea/expression dichotomy, software as both expression and machine/process), rejects heavy metaphysics (Platonism, idealism), and proposes a parsimonious, commonsense framework treating all computer-mediated phenomena and man-made intentional objects as ordinary physical expressions in ordinary space (bits/bytes are not “virtual” or abstract but tangible like printed letters). Koepsell’s call for unified treatment of expressive objects (abandoning the patent/copyright split) and emphasis on material tokens over abstract types anticipates and reinforces Gamrot’s modest ontology and “master artifacts” (Peukert, whom Gamrot also cites). Both reject creatable/ownable abstract types in favor of material rearrangement and human action.
Barry Smith: Not cited directly by Gamrot. However, the paper is highly relevant to Smith’s broader ontological project (see Smith’s “An Essay on Material Necessity” on Hume/Reinach/Searle debates over material necessities, categories as intelligible forms vs. human-created social institutions, and speech-act phenomena). Gamrot’s “modest ontology” is agnostic on the existence of abstract objects (nominalist/platonist objections are both entertained) but converges on conclusions that parallel Smith-influenced critiques: it rejects heavy metaphysical commitments to creatable/ownable abstract types in favor of a parsimonious framework focused on material tokens and human actions. Peukert (2021)—whom Gamrot cites approvingly for “Master Artifacts”—explicitly adopts Searle’s social ontology (a position Smith analyzes and finds unstable without Reinach-style Platonism). Gamrot’s approach thus sits comfortably within this ontological conversation. Koepsell also draws on Reinach and related Austrian/social-ontology traditions that Smith engages.
Kinsella’s critiques of ontological arguments (Machan, Objectivists, creationists, etc.): Extremely high relevance. Gamrot’s modest ontology and explicit rejection of type creation/possession/use/labor mirror and reinforce Kinsella’s long-running attacks on libertarian/Objectivist/Machan-style creationism (e.g., reification of patterns/identities as ownable “things,” the error of treating conceptual identification as ontological proof of ownable entities, and the failure of type-token conflations). Gamrot’s conclusion that IP rights “govern material objects” and are best understood as non-consensual negative easements/servitudes (citing Kinsella 2013/2023) directly echoes Kinsella’s analysis in Against Intellectual Property (updated editions) and related posts. The paper is thus a powerful academic reinforcement of Kinsella’s ontological critique of pro-IP arguments.

Engagement with Kinsella’s Work

The paper engages Kinsella’s scholarship positively and substantively, citing it in support of key ontological, natural-rights, and legal points. It treats Kinsella as an authority on IP skepticism and aligns with his critiques without disagreement.

Specific Citations and Uses of Kinsella:

Kinsella (2023, p. 20) (fn. 10): natural rights must be intersubjectively ascertainable.
Kinsella (2008, p. 24) (fn. 15): patentable subject matter as “detailed laws of nature.”
Kinsella (2009) (fn. 47): ownership as securing undisturbed control.
Kinsella (2008) (fn. 49): types/abstract entities are not ownable.
Kinsella (2013, 2023, p. 413) (main text + fn. 50): IP rights “govern material objects” (tokens) and are a “non-consensual negative easement or servitude” that burdens tangible property rights (including human bodies in performance contexts).

Bibliography lists four Kinsella works: Against Intellectual Property (2008), “Intellectual Property and Libertarianism” (2009), “Law and Intellectual Property in a Stateless Society” (2013), and Legal Foundations of a Free Society (2023).

Compatibility with Kinsella

Fully compatible—and mutually reinforcing. Gamrot’s modest ontology and conclusions dovetail perfectly with Kinsella’s longstanding arguments: IP is not genuine property in scarce, ownable objects but a state-imposed negative servitude/easement on tangible property rights. The paper provides deeper ontological grounding for why rights to “types”/ideas are impossible or meaningless, while explicitly endorsing Kinsella’s characterization of IP law as a non-consensual burden on material resources. It strengthens the case against pro-IP Lockean, creationist, and Objectivist theories in ways that align with Kinsella’s broader libertarian/IP abolitionist framework. No criticism of Kinsella appears anywhere. (It is also fully compatible with Peukert’s Searle-based legal-realist IP theory and Koepsell’s commonsense ontology of cyberspace, both of which Gamrot builds upon.)

This paper is an excellent recent academic reinforcement of the anti-IP position Kinsella has developed for decades. It can be appended to discussions of Lockean IP justifications, the type-token fallacy, libertarian creationism, the structural disunity of IP and real property, or broader ontological debates in IP theory (Koepsell, Peukert, Smith).