This article is confused. Anything enforced by contract is not IP since contract rights are in personam—between the parties only—whereas IP rights are in rem (or erga omnes) property rights good against the world. That is why they affect third parties and precisely why they are problematic. A contract cannot bind third parties so it can’t produce IP rights. Hammer is confused. Rothbard was wrong that contracts can bind third parties. I explain this in the “IP as Contract” section of Against Intellectual Property, in particular the subsections “The Limits of Contract” and “Contract vs. Reserved Rights.”

***

This article was published in the Winter 1995-96 issue of Formulations

by the Free Nation Foundation

Intellectual Property Rights Viewed As Contracts

by Richard O. Hammer

 (to table of contents of FNF archives)

While we libertarians wrestle with the rectitude of intellectual property rights, I suggest that we think of contracts, and the limits of the enforceability of contracts. Suppose Scribbler has written a book that you want to read. Scribbler offers you a contract. For $10 you may take the volume — but only if you promise not to copy it.1

While some libertarians argue persuasively against the legitimacy of intellectual property as granted by state power,2 I think that most of us would agree that the state should not intervene to void a contract between two freely consenting parties. You and Scribbler have a right to enter into a contract which gives Scribbler a right, of sorts, to intellectual property. [continue reading…]

[Update: See also My reply to Brian Doherty’s post on my Death Throes of pro-IP Libertarianism article]

This piece Brian Doherty, Intellectual Property: Dying Among Libertarians?, was published in Reason in 2010. He doesn’t quite get it, but at least tries to fairly summarize my propertarian take. I had several replies, including this one:

In this recent podcast, KOL341 | ESEADE Lecture: Should We Release Patents on Vaccines? An Overview of Libertarian Property Rights and the Case Against IP, I start off with a concise overview of the libertarian understanding of property rights and why this rules out intellectual property rights. The podcast episode is accompanied by a transcript.

Kinsella on Liberty Podcast, Episode 341.

This was a webinar I did for an Argentinian audience for ESEADE May 26, 2021. The topic was formally “Should We Release Patents on Vaccines” (“¿Hay que liberar las patentes sobre las vacunas?“). In this talk, I briefly provide an overview of the nature of property rights and the principled case against IP, then apply it to vaccines, and took questions from the audience.

Read more>>

One no-name nym-wielding Silas Barta (aka John Sharp, “Person,” Richard Harding [a juvenile sexual term, “hard dick”])¹ has been a perennial gadfly and pest about IP, flitting in various Mises Blog comments razzing us IP abolitionists.

His argument is a literally stupid one (not surprising as “There are No Good Arguments for Intellectual Property”; see also “Absurd Arguments for IP”). It amounts to this: Some libertarians seem to think that there should be rights in electromagnetic (EM) spectra (see e.g. my post Why Airwaves (Electromagnetic Spectra) Are (Arguably) Property [Aug. 9, 2009]). And if you believe in property rights in EM spectra, then you have to believe in IP rights. After all, “IP (intellectual property) rights have the exact same form” as EM spectra rights. Et voilà!

Here’s his old post about this. He tangles with Bob Murphy in the quotes; interestingly, they later wrote a book together on Bitcoin: Murphy and Barta, Understanding Bitcoin: The Liberty Lover’s Guide to the Mechanics & Economics of Crypto-Currencies (2015)  I love Bob and some of his Bitcoin stuff is provocative and enlightening (see his “Bitcoin and the Theory of Money” and “The Economics of Bitcoin“), but I can’t bear to read something co-authored by this idiot pest Barta/Person/Sharp/Harding, unless Murphy assures me he wrote basically all of it and for some reason just added Barta as a pity gesture or something. But since num-nuts’ name is listed first, I assume it was the opposite: gadfly Hard Dick wrote it and persuaded Bob to attach his name to it. Since Hard Dick is so bad on libertarian theory and on the argument for EM spectra (he doens’t even give an argument), I have no reason to think he has anything sensible to say about Bitcoin or libertarianism at all.

In his “article” pretending to “argue” for IP (he nowhere does), Barta says “Unlike some other people who shall remain nameless[1], I want to see where I’m wrong.” This is a lie. He doesn’t want to see where he’s wrong because he doens’t adduce a genuine argument for IP. He has some weird monomaniacal obsession with the EM spectrum issue [which is not settled among libertarians, unlike real property rights (yes!) and unlike IP rights (no!)]. His argument is not a real one; it’s an “if-then” one. “IF you believe in EM rights, THEN you should believe in IP rights.” Well. This is simply not a case for IP. And it’s wrong. You can believe in EM rights without believing in IP rights (see my post linked above). And if he’s right that EM implies IP, then EM would have to fall too, for the same reasons IP falls.

What Silas refuses to see is that, ultimately, IP rights are a taking of property rights, a redistribution of wealth in the form of a nonconsensual negative servitude (or easement), as I explain here: Intellectual Property Rights as Negative Servitudes. And to counter his predictable next silly argument: see my posts “The Non-Aggression Principle as a Limit on Action, Not on Property Rights,” “IP and Aggression as Limits on Property Rights: How They Differ,” “The “If you own something, that implies that you can sell it; if you sell something, that implies you must own it first” Fallacies.”

By the way, Hard Dick, I’ll be happy to discuss/debate this issue with you any time (this goes for any other defender of evil, socialist IP in the world).

In any case, here’s his little screed, saved here for posterity in case he modifies or deletes it out of embarrassment later.

[continue reading…]

1. He once confirmed this to me: “I also post at these places.  (Usual handle in parentheses.)

   Asymmetric information, Megan McArdle’s blog (Person)
   Marginal Revolution (Person)
   Overcoming Bias (Silas)
   Kip Esquire’s blog, A Stitch in Haste (Silas)
   econlog.econlib.org (none, banned)
   economiclogic.blogspot.com (johnsharp9)”  [↩]

I’ve previously criticized George Mason economist Alex Tabarrok’s views on patents.¹ For example, as noted in Patent Policy on the Back of a Napkin, Tabarrok makes a Laffer-curve style argument that patent rights are currently “too strong.” Of course, he is correct that patent rights are too strong. However, he assumes that we should reduce patent strength, since it’s “too strong” now, but not abolish it, since zero protection is too weak. Instead, there is an optimal amount of patent strength, somewhere between zero and infinity, and we should try to adjust the patent system to optimize the production of innovation.

But there is no evidence that patent policy produces any kind of net societal gains at all,² nor does Tabarrok provide any. [continue reading…]

1. See, e.g., Tabarrok: Patent Policy on the Back of a Napkin; Libertarian Favors $80 Billion Annual Tax-Funded “Medical Innovation Prize Fund”; $30 Billion Taxfunded Innovation Contracts: The “Progressive-Libertarian” Solution; and Tabarrok’s Launching the Innovation Renaissance: Statism, not renaissance.   [↩]
2. See, e.g., “The Overwhelming Empirical Case Against Patent and Copyright.” [↩]

I just came across this one in a Twitter thread — some rando no-name apparently named Vincent, who doesn’t even understand that copyright is automatic.

See also

• Objectivist Greg Perkins on Intellectual Property
• Objectivists Hsieh and Perkins on IP and Pirating Music
• There are No Good Arguments for Intellectual Property

***

See: How to Improve Patent, Copyright, and Trademark Law

An Open Letter to Congress

Dear Member of Congress:

Below please find some suggestions for legislative improvements to federal law in favor of American free markets, property rights, and individual liberty.
[continue reading…]

Jammit to the wall.

Lockean Intellectual Property Refuted, by Cezary Błaszczyk, Scienza & Politica, vol. XXXII, no. 63 (2020).

Abstract: Locke’s theory of property is irreconcilable with intellectual property. Property-like titles in ideal objects cannot be introduced within the framework of the natural law, because they could constrain others from acts necessary for their survival. Nevertheless, followers of Locke’s theory of politics choose to belittle this conclusion and even Locke himself supported early copyright legislation. The inconsistency is important, for it depicts the problem of legitimization of intellectual property as political and demonstrates liberal reification of various aspects of social life.

This paper is solid, thorough, conclusive, and full of brilliant insights. It demolishes the case that IP, propounded by some such as Adam Mossoff, is a natural right or that Lockean theory supports IP. Related:

• Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory: Transcript
• Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging” (esp. the arguments by Tom Bell and Ronan Deazely that Locke’s thought does not support IP as a natural right)

Or should I say “libertards”?

[Update: see Jeffrey Tucker, Backdoor Censorship through Libel Law; Techdirt Podcast Episode 266: In Defense Of Section 230 & A Decentralized Internet; Walter Block, “A Libertarian Analysis of Suing for Libel,” LewRockwell.com (Sep. 5, 2014); How Democrats’ Attack On Section 230 Plays Right Into Trump’s Censorial Plans, Techdirt (March 26, 2025)]

It’s understandable conservatives, who have no serious principles about liberty or property rights, want to end the “safe harbors” granted to ISPs and related social media platforms, like Twitter, Facebook, Instagram, Youtube, by §230 of the 1996 Communications Decency Act (CDA) (which has to do with defamation) and the “OCILLA provisions of the 1998 Digital Millennium Copyright Act (DMCA) (which has to do with copyright).¹ This is to be expected. But it’s disheartening when even some libertarians want to do this (e.g., Tom Bell; the late Justin Raimondo).

These laws, signed by Bill Clinton at the dawn of the Internet, prevent platforms from being vicariously liable for tortious conduct (e.g. defamation law) or copyright infringement by their users. They were instrumental in the early flourishing and development of the Internet; Youtube, blogging, etc. would not have been possible without them. See The Court Case that Enabled Today’s Toxic Internet.

Some argue that these laws were premised on the assumption that ISPs and now, social media services, are mere neutral platforms, not “publishers,” and thus they should not be responsible for actions of their users, any more than the telephone company should be liable for criminal actions by individuals when they make phone calls to plan a crime. But now that Facebook, Twitter, et al. have become more woke and are censoring non-progressive speech, they are “acting like publishers” and should be treated like publishers. If the New York Times is potentially liable for libel for publishing an article or letter or ad that defames someone, so should Twitter and Facebook, since they now obviously monitor and edit the content their users post. But removing the §230 and DMCA safe harbors would just be a way of imposing defamation and copyright liability on companies that are now somewhat exempt. Since both defamation and copyright law are utterly unjust and unlibertarian (as Murray Rothbard and Walter Block have shown re defamation; and as I and others have shown re copyright), we should not urge the abolition of these safe harbors. It would be like, instead of abolishing the drug war, advocating that rich white kids suffer the same criminal penalties as the poor do, or instead of advocating an end to the draft, advocating for a universal draft so that it doesn’t disproportionately affect the underclasses. No. Abolish taxes, copyright, the draft, and the drug war for all. Don’t extend it just to reduce inequality.

But the incremental advance of IP law continues. See, e.g., Covid-19 Relief Bill Adds Criminal Copyright Streaming Penalties and IP Imperialism; and The EARN IT Act Violates the Constitution—the EARN It Act seeks to undermine the ability to encrypt data, which will expand IP enforcement and threatens Bitcoin and cryptocurrency.

Some of my comments from previous posts and emails are below. [continue reading…]

1. See Trump Threatens to Veto Defense Bill if Tech Liability Shield Stands; Tucker Carlson Interview with Senator-Elect Josh Hawley on CDA 230; Mike Masnick, Lindsey Graham’s Latest Attack On Section 230: Reform It By 2023, Or We Take It Away; other Masnick posts; Hello! You’ve Been Referred Here Because You’re Wrong About Section 230 Of The Communications Decency Act. [↩]

As noted in this Facebook post:

It’s sad to see Republicans and even Fox News types applauding the Covid “relief packages” Congress recently passed and also earlier this year. These are massive wealth transfers and simply theft. I wonder however if the libertarians who believe in takings (eminent domain) have any principled opposition to this, e.g. Richard Epstein, author of Takings. Epstein’s argument there is that sometimes, because of free rider problems and holdouts, you need a public measure that takes someone’s private property for public use, while compensating them for the fair market value, with general tax revenues. This way, the overall cost of a measure is distributed evenly, and everyone benefits since the measure helps the “size of the pie” grow bigger (it is this surplus that you compensate the expropriated victim from, so that no one is harmed on net and everyone benefits overall). [continue reading…]

Announcing the Open Crypto Alliance, which has been formed to fight blockchain and crypto patent trolls and patent abuse that threatens the bitcoin space (as discussed in this Facebook post).

[Update: the Open Crypto Alliance (2020–22) has changed its name to the the Open Crypto Foundation (2022–)]

As we know, one significant threat to bitcoin and cryptocurrency is state regulation and law. Another looming threat to freedom and innovation in crypto also results from state law: the patent system. A group of us—blockchain and crypto advocates, working in technology and patent law for over 30 years—have created this alliance to organize a successful fight to provide freedom to operate in blockchain and crypto technology. ​The Open Crypto Alliance is dedicated to keeping blockchain and crypto technology free of unwarranted patent assertions. We intend to do this by taking aggressive proactive action to oppose unwarranted patents that are being filed and collected by patent trolls and other bad actors.

As I noted here, previous patents have already needlessly distorted and hindered bitcoin technology. What a waste. What a shame. And the patent threat is growing. See, e.g., this Bloomberg interview with one of our Advisors, patent attorney Marc Kaufman, about Blockchain patent strategies and Blockchain patents: the emerging landscape of risk, and, by our Founder, Jed Grant, What Would A Blockchain Patent War Look Like? For example, the rabidly pro-patent Craig Wright (see his comments here; see also my IP debate with Wright) has a growing arsenal of patents related to blockchain and crypto technology. (For example, see Craig Wright/nChain’s global patent filings or granted US patents and pending US patent applications. 

If you are a crypto entrepreneur or company concerned about the patent threat to innovation and freedom to operate in this space, please pass the word along, and join us.