Jakub Wiśniewski, “On the Impossibility of Intellectual Property,” Q.J. Austrian Econ. 23, no. 1 (Spring 2020): 33–45.
Abstract: The concept of intellectual property (IP) has been variously criticized
as incompatible with natural rights and detrimental to the dissemination of innovations. In this paper I argue that it can be criticized on an even more fundamental level—namely as a praxeological impossibility. More specifically, it is suggested that since ideas are not economic goods, but preconditions of action, and since physical goods transformed by ideas become as heterogeneous (and thus as intellectually unique) as the individuals who enact such transformations, no economic goods can be meaningfully designated as appropriable in virtue of embodying the objectively definable value of one’s intellectual labor. In view of the above, I subsequently suggest that IP protection laws constitute an exceptionally arbitrary and thus exceptionally disruptive form of interventionism directed against the very essence of the
entrepreneurial market process.
I asked Grok to summarize and provide my analysis in view of my previous comments on a earlier draft. See below.
Related
- Wiśniewski, Libertarian Quandaries
- Wiśniewski, Jakub Bożydar. 2015. “‘Własność publiczna’ jako prakseologiczna sprzeczność: Przyczyny, skutki, implikacje.” [“Public property” as a praxeological contradiction: Causes, effects, and implications]. Jakub Bożydar Wiśniewski (blog), December 6.
Concise Summary
Wiśniewski notes existing libertarian critiques of intellectual property (IP) as incompatible with natural rights and self-ownership, and economic critiques showing that patents and copyrights hinder rather than promote innovation. He advances a distinct claim: that IP is a praxeological impossibility.
Drawing on subjectivist value theory and Austrian insights into capital and entrepreneurship, he argues that ideas are not economic goods but preconditions (or “general conditions”) of action. Genuine economic goods must exhibit objective physical scarcity. When an actor implements an idea—even one learned from another—by transforming physical resources, the resulting goods become heterogeneous and unique because of the actor’s particular circumstances, plans, and entrepreneurial judgment. Consequently, no economic goods can be meaningfully designated as appropriable merely by virtue of embodying the “objectively definable value of one’s intellectual labor.” Treating ideas as ownable confuses objective mental preconditions with the subjective results of action.
IP laws therefore do not monopolize a distinct category of resources; they arbitrarily curtail entrepreneurial “resource heterogenization.” They function as uninvited institutional co-ownership of competitors’ physical property and impose especially disruptive regime uncertainty, particularly on firms that rely heavily on innovative adaptation of existing technical knowledge. The argument is presented as positive and praxeological rather than normative, though it implies that IP protection is an exceptionally arbitrary form of interventionism directed against the entrepreneurial market process.
Kinsella’s Analysis
The paper’s central insight—that knowledge or ideas are distinct from the scarce means of action, and that any concrete implementation of an idea involves unique entrepreneurial adaptation of physical resources—overlaps substantially with arguments developed in the libertarian literature on the structure of human action and the nature of property rights. Successful action requires both knowledge (of ends and of causal laws) and control of scarce means. Knowledge is nonscarce and infinitely replicable; property rights concern only the latter, because only scarce resources can be subject to conflict. Ideas guide action but are not themselves the objects of ownership. See N. Stephan Kinsella, “Intellectual Property and the Structure of Human Action” (Mises Economics Blog, Jan. 6, 2010; later collected in You Can’t Own Ideas: Essays on Intellectual Property, Papinian Press, 2023). Related distinctions between scarce and nonscarce goods appear in Jeffrey A. Tucker and Stephan Kinsella, “Goods, Scarce and Nonscarce” (Mises Daily, Aug. 25, 2010).
Wiśniewski’s observation that IP laws create “uninvited institutional co-owners” of competitors’ physical property is closely related to the characterization of patent and copyright as non-consensual negative servitudes (or easements). Such rights do not create ownership of ideas; they redistribute control rights over already-owned scarce resources according to an arbitrary rule that conflicts with original appropriation, contract, and rectification. See Stephan Kinsella, “Intellectual Property Rights as Negative Servitudes” (C4SIF.org / Mises Wire, June 23, 2011), and the fuller development in Stephan Kinsella, “The Problem with Intellectual Property” (Papinian Press Occasional Paper No. 2, May 15, 2025, v.1.1). This is also the core of the case in N. Stephan Kinsella, Against Intellectual Property (Auburn, Ala.: Mises Institute, 2008; originally Journal of Libertarian Studies 15, no. 2 [Spring 2001]).
Several aspects of the argument would benefit from further clarification if the paper is to be fully persuasive on its own terms. The notion of “praxeological impossibility” remains somewhat under-specified. IP statutes and their enforcement plainly exist; what is impossible is a coherent concept of ownership of nonscarce information that is consistent with the logic of human action and the function of property rights. Claims that ideas are never strictly replicated, or that every implementation is uniquely “heterogenizing,” are suggestive but often compressed or metaphorical; they need more careful unpacking, especially with respect to mass-produced goods and the distinction between technical recipes and entrepreneurial judgment. The paper sometimes risks blurring the positive/normative distinction that Mises maintained between the catallactic and juristic realms; asserting that a concept is “praxeologically incoherent” does not by itself settle whether the corresponding legal rules are unjust. Trademark is introduced without adequate differentiation from patent or copyright, and the overall category of “intellectual property” is not clearly delimited at the outset.
Greater engagement with related arguments would also strengthen the piece. Property rights attach to the physical integrity of scarce resources, not to their value (see, e.g., discussion of Hoppe in Stephan Kinsella, “Hoppe on Property Rights in Physical Integrity vs Value,” StephanKinsella.com, June 2011). Production consists in rearranging already-owned scarce resources guided by knowledge, not in “creating” new objects that somehow generate new ownership rights. The idea/expression dichotomy familiar from copyright doctrine is arbitrary and non-objective; similar difficulties attend any attempt to draw a non-arbitrary line around “sufficiently complex” concepts that might be subject to exclusive control. Finally, the practical conclusion remains somewhat open-ended: is the claim that IP law should be abolished, that economists should stop treating the concept as meaningful, or something else?
Despite these points, the article usefully reinforces, from a capital-theoretic and entrepreneurial-process perspective, the fundamental categorical error in treating knowledge as ownable. It is complementary to the normative libertarian case developed in Against Intellectual Property and subsequent writings collected in You Can’t Own Ideas: Essays on Intellectual Property (Papinian Press, 2023) and Legal Foundations of a Free Society (Papinian Press, 2023), especially chapters 14–15.
Selected references:
- N. Stephan Kinsella, Against Intellectual Property (Auburn, Ala.: Mises Institute, 2008).
- N. Stephan Kinsella, “Intellectual Property and the Structure of Human Action,” Mises Economics Blog (Jan. 6, 2010).
- Jeffrey A. Tucker and Stephan Kinsella, “Goods, Scarce and Nonscarce,” Mises Daily (Aug. 25, 2010).
- Stephan Kinsella, “Intellectual Property Rights as Negative Servitudes,” C4SIF.org (June 23, 2011).
- Stephan Kinsella, “Hoppe on Property Rights in Physical Integrity vs Value,” StephanKinsella.com (June 2011).
- Stephan Kinsella, “The Problem with Intellectual Property,” Papinian Press Occasional Paper No. 2 (May 15, 2025, v.1.1).
- Stephan Kinsella, Legal Foundations of a Free Society (Houston: Papinian Press, 2023), esp. chs. 14–15.
