Rothbard: bad and confused on patent and IP by contract; silent on trademark; good on defamation.
- David S. D’Amato, “Libertarian Views of Intellectual Property: Rothbard, Tucker, Spooner, and Rand,” Libertarianism.org (May 28, 2014)
- Matt Zwolinski in The Myth of Libertarianism
- Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”
- Murray N. Rothbard, Knowledge, True and False
- ———, Man, Economy, and State and Power and Market, Scholars Edition, pp. 745-54 & 1133-38
- ———, Rothbard’s comments here
See the following, adapted from my tweet in response to Matt Zwolinski in The Myth of Libertarianism.
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“Herbert Spencer and Lysander Spooner thought intellectual property was a straightforward extension of property rights; Murray Rothbard thought it was an affront to them.”You are right about Spencer and Spooner. https://c4sif.org/2015/10/classical-liberals-and-anarchists-on-intellectual-property/But are you sure Rothbard is opposed to IP rights? In “Knowledge, True and False,” in The Ethics of Liberty, he defends what he calls “(common law) copyright”. https://mises.org/mises-daily/knowledge-true-and-false
This obviously covers original works of expression like books (which is what copyright covers now) and it also covers inventions–the very example he gives is of a mousetrap, an invention (the type of thing protected by today’s patent law).
Now, what he calls “(common law) copyright” is an unfortunate term he made up because there is already a doctrine of common law copyright which has nothing to do with Rothbard’s new doctrine; so we should refer to his proposed legal doctrine as “Rothbardian ‘common law’ copyright” or better yet, “Rothbardian contractual copyright”, or “Rothbardian contractual IP rights”. In any case, what Rothbard defends is a novel legal right, “Rothbardian ‘common law’ copyright,” which protects (a) original works of creative expression, and (b) inventions. I.e., “Rothbardian ‘common law’ copyright” is a unified type of IP right that combines what modern patent and copyright protect.
So why do you say he holds that IP rights are an affront to property rights? Where does he say this? Now it is true that in MES he states that the patent system might not increase innovation, and that it distorts research. He writes: “It is by no means self-evident that patents encourage an increased absolute quantity of research expenditures. But certainly patents distort the type of research expenditure being conducted. . . . Research expenditures are therefore overstimulated in the early stages before anyone has a patent, and they are unduly restricted in the period after the patent is received. In addition, some inventions are considered patentable, while others are not. The patent system then has the further effect of artificially stimulating research expenditures in the patentable areas, while artificially restricting research in the nonpatentable areas.” See https://mises.org/library/book/man-economy-and-state-power-and-market https://c4sif.org/2011/07/milton-friedman-on-the-distorting-effect-of-patents/.
But there is no reason to think this sparse observation means that he is against the patent system or thinks IP rights/patents violate property rights, any more than Mises and Hayek were opposing patent law when they recognized patents and IP have some effects on the market) (https://c4sif.org/2012/09/mises-on-intellectual-property/; Hayek’s Views on Intellectual Property; also Tucker, “Misesian vs. Marxian vs. IP Views of Innovation“; Tucker, “Hayek on Patents and Copyrights“; Salerno, Hayek Contra Copyright Laws https://c4sif.org/resources/).
Especially because, despite the fact that a patent system does not obviously stimulate more R&D and it distorts R&D, in Ethics of Liberty (1982) he clearly favors the “patents” that come from “Rothbardian ‘common law’ copyright” protection. So maybe he was confused, but even though patents on inventions don’t do any clear good and in fact distort research, he was still in favor of legal protection of inventions/patents.
It is true that in MES, ch. 10, §7, p.747, he attacked patents under the current system but only on the grounds that it would prevent someone from using their invention that they independently invented. Presumably an independent inventor would not engage in contractual copyright that he envisions in Ethics of Liberty; but the remainder of patent law would survive (in addition: since Obama’s America Invents Act in 2011, patent law now has fairly broad protection for prior users/independent inventors, largely alleviating the one concern Rothbard had — https://c4sif.org/2011/10/the-american-invents-act-and-patent-reform-the-good-the-meh-and-the-ugly-2/ ).
In fact, Rothbard’s proposed contractual-common-law-copyright/patent-IP scheme would be broader and worse than current IP law, in many respects, since with the patent system only certain inventions can be patented (leading in fact to his complaint about the patent system distorting research since only certain types of inventions can be patented and others cannot. But in his Rothbardian-contractual-“common law”-copyright-patent-IP-rights system, there would be more types of inventions that could be “copyrighted” (since people can sign contract for whatever they want, even for trivial and non-novel and obvious inventions) in this way. Rothbard’s replacement of contractual-IP is even worse than modern patent law, because it is broader than patent law: it covers more subject matter. Also, it would have no time limits, unlike the current patent system in which patents last about 17 years. So Rothbard’s confused, cockamamie IP scheme would be perpetual and would be broader than current IP law. Wow. Some opponent of IP.
So when he writes “Patents, therefore, are grants of exclusive monopoly privilege by the State and are invasive of property rights on the market” it has to be understood in that context: that he is only opposed to some patents—and the type that are not much of a problem anyway. And again, he supports “Rothbardian ‘common law’ copyright” in The Ethics of Liberty, written 20 years after MES. In the next passage in MES, he tries to distinguish patent and copyright: “The crucial distinction between patents and copyrights, then, is not that one is mechanical and the other literary. The fact that they have been applied that way is an historical accident and does not reveal the critical difference between them.96 The crucial difference is that copyright is a logical attribute of property right on the free market, while patent is a monopoly invasion of that right.”
But though he says they are different, his defense of “Rothbardian ‘common law’ copyright” covers both creative works and inventions, i.e. he does support “patents” for inventions, just re-labeled “(common law) copyright”.
I would love to list Rothbard as opposing IP but see no reason to think he did. I think he would have come around to my/Hoppe’s clearer and better and more principled position had he lived, but he died the year I started explaining the real problem with IP to the world. So he can’t be blamed, perhaps. But to count him as an opponent of IP rights on the grounds that they violate property rights seems to me be just a groundless assertion. Anyone who actually understands what IP rights are should be able to see this—and also, if they are libertarian, to see why IP rights in fact do violate property rights. Something the hapless Spencer and Tucker and Spooner and Rand and Galambos and self-interested libertarian sci-fi novelists like J. Neil Schulman and L. Neil Smith did not and could not see, and unfortunately something Rothbard, as great as he was, never quite got around to figuring out.
If I’m wrong about this, I’d love to be corrected.
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“Henry George thought land was categorically different from other property, justly owned by the community; Rothbard called that view “intellectually and morally beneath contempt.””
Now it is true Rothbard opposed defamation law, which protects reputation rights, which is a form of IP as I have argued (https://c4sif.org/2024/07/defamation-type-of-ip/), and this would mean he also ought to oppose trademark law, which is one other recognized major form of IP, but he never made that connection nor has he ever condemned trademark law. In any case the primary forms of IP are patent (protecting inventions) and copyright (protecting original creative works), and we see, Rothbard is in favor of such IP rights. So could you point me to any clear statement or argument of Rothbard to the effect that IP rights (for inventions and creative works) violate property rights, since he actually explicitly argues for such IP rights in Ethics of Liberty? Why is what George thought relevant to this debate about libertarianism? Are you saying he is a libertarian? Since when?”
