See this interesting thesis by Mark Lemley, “IP in a World Without Scarcity” (abstract below).

More:

• Mark Lemley: The Very Basis Of Our Patent System… Is A Myth
• Intellectual Property’s Great Fallacy
• My paper “Intellectual Freedom and Learning Versus Patent and Copyright,” The Libertarian Standard, Jan. 19, 2011
• Knowledge is Power
• Kinsella: “Intellectual Freedom and Learning Versus Patent and Copyright”

[continue reading…]

In a recent Cato Podcast, Trademarks and Derby-Pie®, host Caleb Brown interviews Walter Olson about trademark law, with reference to a recent controversy where the Kentucky Derby was threatening restaurants from selling a “Derby Pie” (see NPR, What’s Inside A ‘Derby Pie’? Maybe A Lawsuit Waiting To Happen), and similar absurd situations such as the NFL using trademark law to coerce companies not to use the term “Super Bowl.”

Unlike many other libertarian groups, which are willing to condemn intellectual property as unlibertarian or at least feature thinkers who argue against IP, Cato routinely hosts panels, speeches, and publications that promote IP and rarely, if ever, features the anti-IP position,¹ which is ironic given that former Cato scholar Tom Palmer was one of the early libertarian IP abolitionists.²

I was hoping this short podcast would condemn trademark law in general, as I have done,³ or at least condemn these uses of trademark as clear examples of abuse and injustice and as obviously incompatible with libertarian principles, as I have also done.⁴ But Olson nowhere clearly does either. Instead, he insinuates trademark law is an ostensible sensible policy (it’s not), and tries to explain some basic aspects of trademark law. Which is odd, for a libertarian institute; you would think it would make some comments about the policy aspects of IP. And not give a legal commentary on how the law works. Especially when the commentary is not especially illuminating or correct. Indeed, the comments about trademark and IP law are confused, perhaps not surprising as Olson doesn’t appear to be a trademark or IP law specialist.

First, Olson indicates that trademark holders can’t really be blamed for aggressively enforcing their trademarks (e.g. by sending out cease and desist letters to potential infringers, filing suit, etc.), since the way trademark law works, it “presses” them to be aggressive—since, if they do not enforce their trademarks, they might lose their trademark protection, for example by allowing it to become generic (as aspirin has become). However, if you hold a trademark and it becomes generic, you are still able to use it. It just means that others can too; you can’t stop them from doing so. So it makes no sense to say that you are forced by trademark law to threaten to sue people, merely to retain your right to sue them.

Second, Olson implies that it was clear to the Founders that unlike copyright, trademarks originally were limited geographically; it’s not clear why the Founders are invoked here, since they had nothing to do with trademark law. The Founders authorized Congress to enact patent and copyright law in the Constitution—but not trademark law. At the time of the ratification of the Constitution, trademark was protected in the common law by the states. Congress did not even attempt to enact the first federal trademark law until 1870. (I’d argue federal trademark law is unconstitutional precisely because there is no authorization for it; but courts rely on a broad reading of the Interstate Commerce clause to validate the law, since it purports to regulate trademarks for goods sold in interstate commerce—which is why state trademark law still exists, alongside federal trademark law.)

Third, Olson implies that copyright prevents an infringer from selling the work of someone else, “as your own.” I.e., that it merely is meant to stop some form of “plagiarism”—for example, if I were to try to sell John Grisham’s novel The Firm under my own name, as Stephan Kinsella’s The Firm, say. But copyright has nothing to do with plagiarism.⁵ For one, even if you accurately represent the name of the author—give credit, or attribution—copying another’s work is still copyright infringement. If I try to re-sell copies of Grisham’s The Firm under his name, you can be sure I’ll get sued. Plagiarism is irrelevant to copyright, and stopping plagiarism is not the purpose of copyright law. Stopping copying is, regardless of whether the real author’s name is used or not.

Olson characterizes trademark law as being aimed at stopping someone from confusing consumers by selling goods under the original manufacturer’s name. He indicates this is a type of “quasi-fraud.” Well either’s it’s fraudulent, or it’s not. If it is, then the guy selling fake goods to consumers is already covered by fraud law; there is no need for trademark law. It’s only redundant with fraud law. Further, in such as case, the consumer would be the one with the right to sue the knockoff provider, not the original manufacturer. But trademark law gives that right to the trademark holder, not to the allegedly defrauded consumers. Further, trademark law does not even require that a consumer be defrauded for the trademark holder to have a case against the infringer: “likelihood of confusion” is all that needs to be shown, not actual confusion (and not actual fraud or even likely fraud). So, even when the consumer is aware of the “fake” nature of the goods he is purchasing, and wants the fake goods (for example if you buy a fake Chanel purse for $20 to save money), and thus is clearly not defrauded or even confused, the trademark holder can still sue and have the knockoff items seized and destroyed, even though there are no victims of confusion or fraud, or even “quasi-fraud,” whatever that is. And finally, trademark law now doesn’t even require likelihood of confusion—in the US, the Federal Trademark Antidilution Act of 1995 “protects famous trademarks from uses that dilute their distinctiveness, even in the absence of any likelihood of confusion or competition.”

Thus, trademark law is totally unlibertarian, just as patent and copyright are—and for the same reasons that all reputation rights (defamation law, libel and slander) are illegitimate, as Rothbard long ago definitively showed.⁶ It would have been nice of Olson had realized and mentioned this.⁷

1. See Independent Institute on The “Benefits” of Intellectual Property Protection; Richard Epstein, Challenges of Intellectual Property. The only exception I’m aware of is this talk given by Dan D’Amico. [↩]
2.  See The Four Historical Phases of IP Abolitionism. Although it appears Palmer’s anti-IP views softened a bit years later, at least with respect to pharmaceutical patents. See Cato vs. Public Citizen on IP and the TPP; Pilon on Patents (archived comments). [↩]
3.  Trademark versus Copyright and Patent, or: Is All IP Evil?, Trademark and Fraud, also this comment . [↩]
4.  The Velvet Elvis and Other Trademark Absurdities; How to Improve Patent, Copyright, and Trademark Law; The Patent, Copyright, Trademark, and Trade Secret Horror Files.  [↩]
5. See Balancing Intellectual Property Rights and Civil Liberties: A Libertarian Perspective [Transcript]; “Oh yeah? How would like it if I copy and publish your book under my name?!”: On IP Hypocrisy and Calling the Smartasses’ Bluffs; Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense. [↩]
6. See Rothbard, Knowledge, True and False, in The Ethics of Liberty. [↩]
7. Trademark versus Copyright and Patent, or: Is All IP Evil?, Trademark and Fraud, also this comment.   [↩]

In this short and well-done video, libertarian and photographer Patrick Smith provides an argument against IP, explaining how he finally “saw the light” and realized that patent and copyright law are unjust and incompatible with property rights. Whereas he would previously become angry when people “took” his photographs and “used” them—especially, gasp, for profit!—he realized his arguments justifying his reaction were  just emotional and finally came to see that there can be no just “intellectual property” rights; there can be no ownership of information.¹

Smith rightly observes that all owned things are “media”—i.e. scarce resources. If you own a CD with musical data on it, the data is just the impatterning of the owned media. Likewise, if you own a plot of land (dirt), the farm you build on it is just the impatterning of that media. To give someone ownership of the pattern apart from the medium is to give them partial ownership rights in others’ media (scarce resources). I’ve made similar arguments myself before, as has Roderick Long. As I’ve noted: an object may be owned, and the object may have various features, characteristics, or properties, such as its weight, color, age, size, shape, and how it’s impatterned, but ownership of the object and whatever features it has does not imply that the owner independently or separately owns the features of the object. Information is always stored on and embedded in some ownable medium. The medium may be owned (like a piece of paper or a thumb drive or a machine configured in a certain way), but the properties of the medium may not. As Roderick Long has explained,² owning the properties of objects that you own would be ownership of a universal, which would result in ownership of parts of everyone else’s already owned physical objects. Ownership of a red balloon would imply you own its “redness,” meaning you now own everything in the universe that has that redness, for example. (I discuss this in various recent lectures and interviews, but I can’t remember which ones precisely, offhand.)³ [continue reading…]

1.  More and more libertarians have come out against IP in recent years: “The Death Throes of Pro-IP Libertarianism,”; “The Four Historical Phases of IP Abolitionism”; “The Origins of Libertarian IP Abolitionism” . [↩]
2.  The Libertarian Case Against Intellectual Property Rights; see also Owning Ideas Means Owning People. [↩]
3. See “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward”, the section “Resources, Properties, Features, and Universals“. See also A Selection of my Best Articles and Speeches on IP.  [↩]

[Update: See also Shughart’s Defense of IP (Jan. 29, 2010); Disinvited From Cato; Cato on IP; James Stern: Is Intellectual Property Actually Property? [Federalist Society No. 86 LECTURE]; More defenses of IP by the Federalist Society. See also Kinsella, “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” n.86 and Adam Mossoff, “The Patent System: America’s Innovation Engine,” Heritage Foundation Report (Jan. 23, 2025), and other pro-IP pieces at the Heritage Foundation from Mossoff and others here; and the pro-IP Acton Institute, Sabhlok and Rogan on Intellectual Property. IP Law and “Market Failure”; Intellectual Property Advocates Hate Competition ]

As an increasing number of libertarians nowadays are aware or sense, intellectual property is utterly incompatible with private property rights and libertarian principles.¹ In fact, it is one of the most insidious and harmful of statist policies.² Ever since the advent of the Internet, which has magnified the costs of IP and made them more apparent, causing libertarians to turn their attention thereto, more and more libertarians are coming to oppose IP. Virtually all anarchist-libertarians, left-libertarians, and Austrian libertarians, and a growing number of minarchists, oppose IP, and in increasing numbers.³

Yet there remain stubborn holdouts: primarily Randians, older generation minarchists, novelists and other authors who think their livelihood depends on copyright, and a few others financially dependent on IP who want to preserve their gravy train. Some libertarian think tanks, like the Mises Institute or FEE, are anti-IP or at least feature anti-IP writers. But other libertarian think tanks continue to cling to IP in one form or another, either defending it, or having endless panels and conferences about how to “reform” IP, but never to abolish it. For example, see the recent Cato event Intellectual Property and First Principles, featuring four panelists, two strongly in favor of IP and none calling for IP abolition (despite the fact that IP abolition pioneer Tom Palmer is a former Cato guy). The Independent Institute is another libertarian think tank that seems to never feature anti-IP writers, only defenders of IP. For example, as I’ve noted before, Independent Institute senior fellow William Shughart, in “Ideas Need Protection: Abolishing Intellectual-property Patents Would Hurt Innovation: A Middle Ground Is Needed” (archive), has embarrassingly argued:

Granting a temporary monopoly to the rare breakthrough is necessary, therefore, to provide its inventor with an opportunity to earn a return on the investment that led to the new idea – and to encourage additional such investments. Such protection is especially important in the pharmaceutical industry, where, in its absence, new drugs could be duplicated by competitors, and the incentive to invest would disappear, stifling the discovery process.

To paraphrase the late economist Joan Robinson, patents and copyrights slow down the diffusion of new ideas for a reason: to ensure there will be more new ideas to diffuse.

And in the Winter 2015 issue of the Institute’s journal, Independent Review, we have a pro-patent article, Seeking the Patent Truth: Patents Can Provide Justice and Funding for Inventors, by Arthur M. Diamond Jr.⁴

See also Lessig, “Cato’$ Late$t” (criticizing the pro-IP views of Adam Thierer in Howard Dean’s Plan for the Internet: Collectivism In, Property Rights Out; see mention of Lessig’s comments in  Julian Sanchez, Tech Throwdown, and my post Cato, Lessig, and Intellectual Property), where he says “Of course I’m all for more balance in ‘intellectual property.'” Not a good look, Lessig.

And now we have yet another pro-IP piece from the Independent Institute, “The Benefits of Intellectual Property Protection,” by John R. Graham (Feb. 15, 2016). Graham writes:

If there is one thing about which libertarians are never likely to agree, it is whether intellectual property—patents, copyrights, trademarks, and trade secrets—should receive the same legal protection as physical property.

This is simply a false assertion. As noted above, libertarians are now predominately anti-IP and more and more of us move in this direction. This in fact seems to be one issue that we are in fact likely to agree on, unlike, say, abortion or minarchy. In my own libertarian lifetime I can hardly recall seeing such progress on a previously murky or contested issue.

Without wading too deep into the philosophical debate, but showing my colors as an IP advocate, let me share some new research published by the U.S. Chamber of Commerce’s Global Intellectual Property Center (GIPC) on the benefits of legal protection of intellectual property.

In just one sentence, there are least three things to comment on. First: how can one comment on a supposedly contested libertarian normative issue, while explicitly refraining from engaging in “the philosophical debate”? Sounds like trying to have one’s cake and eat it too—or an abdication of responsibility. One should not weigh in on such an important issue, taking a normative position, without taking or having an argument for a normative or philosophical stance. Second, the author admits he is an IP advocate—though he doesn’t say why (perhaps because of his connections to medical/pharmaceutical industries, which are typically strongly anti-competition, I mean, pro-patent). One can only imagine he thinks his bread is buttered somehow by the IP system. That may be well and good, but it is not an argument. I’m an IP lawyer but I oppose IP, so it is possible to have some integrity. Third: he just launches into “research” as if this is how this issue is to be decided. Not everyone is a utilitarian or empiricist, nor do all of us trust data from advocacy  groups.

Graham then launches into a discussion of the U.S. Chamber of Commerce’s “research.” This reminds a bit of the utterly bogus US Commerce Department report “Showing Intellectual Property-Intensive Industries Contribute $5 Trillion, 40 Million Jobs to US Economy”.⁵ This argument, of course, makes the mistake of equating correlation with causation, just as similar arguments for IP do, such as: Postwar Japan prospered because it had a patent system; countries with the most IP are the most prosperous; America’s prosperity and growth since its inception is due to its patent and copyright systems.

Regarding the U.S. Chamber of Commerce study, Graham says:

Published on February 10, Infinite Possibilities ranks 38 countries by 30 indicators of strength of IP protection. The indicators measure both law and enforcement: Countries which do not enforce IP rights, despite the letter lf the law, are marked down. Most of the indicators are straight forward: Longer patent, copyright, or trademark terms are better; strong enforcement mechanisms are better; and treaty obligations protecting intellectual property invented in other countries are better.

The report does not attempt to determine causality between strong IP protection and social or economic outcomes. Indeed, 30 indicators are likely far too many to use for such an analysis. Nevertheless, the report does determine a number of positive correlations between strong IP protection and a number of other beneficial indicators. For example, the correlation between countries’ scores and

• access to venture capital is 0.81;
• number of researchers in research and development is 0.80;
• access to the latest technologies is 0.83;
• access to video-on-demand and streaming TV is 0.64;
• private sector spending on research and development is 0.75;
• share of workforce in high-value, knowledge-intensive services.

I could go on, but I am sure you get the drift. Some libertarian critics complain that IP protection is the result of innovation, not its cause; and the legal framework is a consequence of rent-seeking rather than the government’s desire to promote innovation.

This chicken-and-egg question may be beside the point: It is very difficult to envision innovation continuing at the current rate if innovative industries lose the protections for which they advocate. Infinite Possibilities shows there are no innovative and prosperous countries today that do not have strong IP protections.

One’s jaw has to drop at how bad this argument is. Graham admits that the “report does not attempt to determine causality between strong IP protection and social or economic outcomes.” But, it “does determine a number of positive correlations between strong IP protection and a number of other beneficial indicators.” In other words, he admits that the report does not attempt to show causality, that it only shows correlation. Yet then he simply asserts, “It is very difficult to envision innovation continuing at the current rate if innovative industries lose the protections for which they advocate.” Um. But this is the pro-IP premise, which is simply not supported by the study, since it does not even purport to demonstrate causation. 

As for this being a “chicken-and-egg” question: not so. As I have noted, the empiricist-utilitarian approach is unprincipled and bankrupt. But, given the available evidence, anyone who accepts utilitarianism should be opposed to patent and copyright.⁶

In any case, what do these weird “arguments” for IP have to do with liberty, human freedom, private property rights, and the rule of law? So what if a certain government policy might “promote innovation”? Since when was that the purpose of law, justice, and property rights? Utilitarian libertarians just launch into discussions about empirical benefits of various state policies, as if that is relevant to justice. These libertarians have lost their mooring, and their principles.

The Independent Institute should be ashamed for repeatedly promoting the evil, statist idea of intellectual property—especially in the name of liberty and free markets.

Update:  More from Shughart, Aug. 12, 2019:

William Shughart•8 hours ago• edited

Authors of textbooks (among which I count myself) are paid royalties only on sales during (roughly) the first six months after publication. Once new texts enter the used book market, all of the revenue goes to used-book dealers, including college bookstores. In consequence, authors (and publishers) have strong incentives to market revised editions (often only with cosmetic changes), or to use cheap bindings that fall apart quickly, to undercut the used-book market and collect royalties for another six months or so.

Consider, in contrast, the authors and publishers of music, which through an organization called ASCAP, earn royalty income every time a copyrighted song is played or replayed (on the radio or in live performance). If textbook authors and publishers also could benefit from resales, existing editions would remain in print for much longer and their prices would not rise as rapidly, would remain stable, or perhaps even fall over time.

Recall Ronald Coase’s conjecture that a monopolist of a perfectly durable good has no option other than to sell the good at a price equal to marginal cost.

Stephan Kinsella William Shughart •5 hours ago

It is amazing that you promote copyright and patent, from an ostensibly liberal point of view. This is horrible and confused. You are wrong about IP and about its compatibility with free markets and liberalism. Patent and copyright are utterly evil and anathema to free markets. Anyone promoting free markets, human liberty, competition, human progress, etc., should see that. Shughart, you’ve written explicitly in defense of IP law before. Shame. For shame. As you wrote: “Granting a temporary monopoly to the rare breakthrough is necessary, therefore, to provide its inventor with an opportunity to earn a return on the investment that led to the new idea – and to encourage additional such investments. Such protection is especially important in the pharmaceutical industry, where, in its absence, new drugs could be duplicated by competitors, and the incentive to invest would disappear, stifling the discovery process.

To paraphrase the late economist Joan Robinson, patents and copyrights slow down the diffusion of new ideas for a reason: to ensure there will be more new ideas to diffuse.”

We libertarians are NOT AGAINST the “diffusing” or spreading of “new ideas”. We oppose patent and copyright law. They are both abominations. It is sad you don’t know this, and it is also too bad the author didn’t bring in copyright law in his analysis of textbook pricing.

https://c4sif.org/2016/02/in…

Update: According to a friend, in a recent Russ Roberts EconTalk podcast (Oct. 2019, interview with Susan Houseman), Roberts said “I don’t care so much whether our trading partners follow free trade. I do care if they steal our intellectual property.” (01:09:38) Sigh.

1. See Kinsella, “Intellectual Property Rights as Negative Servitudes” (June 23, 2011). [↩]
2. “Where does IP Rank Among the Worst State Laws?”; “Masnick on the Horrible PROTECT IP Act: The Coming IPolice State”; “Copyright and the End of Internet Freedom”; “Death by Copyright-IP Fascist Police State Acronym”; “SOPA is the Symptom, Copyright is the Disease: The SOPA Wakeup Call to Abolish Copyright“. [↩]
3. See “The Death Throes of Pro-IP Libertarianism,” “The Four Historical Phases of IP Abolitionism”, “The Origins of Libertarian IP Abolitionism”. [↩]
4. Update: See also the excerpt below from Lawrence Lessig, in his article Copyright’s First Amendment, 48 UCLA Law Review 1057 (2001). It is a mystery to me why people think of Lessig as some copyright maverick. Lessig is no friend of liberty or opponent of copyright; see Tim Lee and Lawrence Lessig: “some punishment” of Swartz was “appropriate”. And here he is praising a famous pro-copyright piece by Melville B. Nimmer, “Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press,” 17 UCLA L. Rev. 1180 (1969-1970). Lessig gushes, “There are few essays in the field of legal science that have had as profound an impact on the law as this-not just among academics, but among courts as well.” Well, sure, the Court adopted some of Nimmer’s argument. Bravo. But Nimmer’s argument is bereft of any principles; it’s just clever legal-positivist bullshit that tries to find clever legal tricks to “balance” the “interests” of copyright versus the opposing “interests” of free speech—by making the perverse argument that copyright actually promotes free speech. (To be clear, Copyright is Unconstitutional, and in any case, it is surely wrong and evil.) Here is Lessig paraphrasing the “brilliance” of copyright scholar Nimmer:

   “There are few essays in the field of legal science that have had as profound an impact on the law as this-not just among academics, but among courts as well. And I take it that no one was surprised when the U.S. Supreme Court, just as this essay turned fifteen, embraced the central insight in Nimmer’s analysis to explain the puzzle that Nimmer set himself to solve.

   That puzzle was this: How is it that a constitution could protect “freedom of speech” from the abridgment by Congress, and yet give Congress the power to grant monopolies over speech?2 What consistency could there be between the command not to control, and the power to give authors almost a century of control? What interpretation of freedom of speech made this control make sense? What understanding of this system of control—copyright—makes this constitutional freedom possible?

   In Harper & Row, Publishers, Inc. v. Nation Enterprises, the Supreme Court gave us a theory. Or better, they gave us Nimmer’s theory, now backed with the force of law. Said the Supreme Court, following Nimmer (and citing him twenty-seven times), this alleged contradiction was apparent, not real. Copyright did not abridge speech, because without copyright, a great deal of speech would not exist. Copyright, through its limited protection of authors, creates an incentive to produce speech that otherwise would not exist. It functions, as the Court said, as an “engine of free expression,”4 fueling the creation of what otherwise would not be created.

   Copyright does this, no doubt, by limiting some speech. But it limits some speech so that other speech might be created. Just as the Constitution itself limits democracy so that democracy might be more free, as Rebecca Tushnet has written, copyright limits some speech so that other speech might be produced. Thus, there is no first amendment “abridgment” when the baseline is properly set. [↩]

5. See USPTO, “IP Contributes $5 Trillion and 40 Million Jobs to Economy”; USPTO/Commerce Dept. Distortions: “IP Contributes $5 Trillion and 40 Million Jobs to Economy” . [↩]
6. Legal Scholars: Thumbs Down on Patent and Copyright”; “The Overwhelming Empirical Case Against Patent and Copyright“. [↩]

I’ve spoken and published on IP theory so much, even I have trouble figuring out which of my various presentations is the best. I still agree with my Against Intellectual Property (published originally 2001) but it has some extraneous information I would now delete, is slightly dated, and I have in the meantime tightened up the language used in the argument and found a few additional arguments. Plus it’s fairly long.

I did a 2009 piece The Case Against IP: A Concise Guide, but it is not really a presentation of the case against IP—it’s more of a guide to the literature on this topic. And Grok does a pretty decent summary.

In a way I think the best case against IP is encapsulated in this short post: Intellectual Property Rights as Negative Servitudes.

And I have some longer pieces as well. Here are some suggestions (some newer material listed below):

1. Grok summary of Kinsella on IP
2. The Problem with Intellectual Property (2025)
   1. Sebastian Wang, “Review of The Problem with Intellectual Property by Stephan Kinsella,” Libertarian Alliance [UK] Blog (7 October, 2025)
3. “Intellectual Property and Libertarianism,” Mises Daily (Nov. 17, 2009). Concise case against IP.
   1. “Law and Intellectual Property in a Stateless Society,” Libertarian Papers 5 (1) (2013): 1-44. More detailed.
   2. “Intellectual Freedom and Learning Versus Patent and Copyright,” The Libertarian Standard, Jan. 19, 2011
      1. Based on KOL062 | “Intellectual Freedom and Learning versus Patent and Copyright” (2010)
   3. Ideas are Free: The Case Against Intellectual Property: or, How Libertarians Went Wrong
4. “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward” (2023). An update of AIP.
5. An Overview of Libertarian Property Rights and the Case Against IP [from KOL341)
   1. How To Think About Property
   2. Aggression and Property Rights Plank in the Libertarian Party Platform
6. “The Overwhelming Empirical Case Against Patent and Copyright”
   1. There’s No Such Thing as a Free Patent
   2. “Legal Scholars: Thumbs Down on Patent and Copyright”
7. “Defamation as a Type of Intellectual Property,” in A Life in Liberty: Liber Amicorum in Honor of Hans-Hermann Hoppe, edited by Jörg Guido Hülsmann & Stephan Kinsella (Houston, Texas: Papinian Press, 2024)

Other

1. KOL253 | Berkeley Law Federalist Society: A Libertarian’s Case Against Intellectual Property
2. KOL 037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory
3. KOL364 | Soho Forum Debate vs. Richard Epstein: Patent and Copyright Law Should Be Abolished
4. KOL388 | Cantus Firmus with Cody Cook: Against Intellectual Property
5. “Intellectual Property and Economic Development,” Mises University 2011 (July 27, 2011) [Speech + Transcript]
6. “KOL236 | Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012)” (Feb. 10, 2018) and “KOL237 | Intellectual Nonsense: Fallacious Arguments for IP—Part 2 (Libertopia 2012)” (Feb. 12, 2018) [Speech + Transcript]

(all available here http://www.stephankinsella.com/publications/ and https://c4sif.org/aip/)

Among my talks—I don’t know. I have too many for me to sort out. Other than those above, here are some other recent ones:

• KOL268 | Bob Murphy Show: Law Without the State, and the Illegitimacy of IP
• KOL341 | ESEADE Lecture: Should We Release Patents on Vaccines?, including: An Overview of Libertarian Property Rights and the Case Against IP
• KOL172 | “Rethinking Intellectual Property: History, Theory, and Economics: Lecture 1: History and Law” (Mises Academy, 2011)
• KOL217 | Intellectual Property is the Bastard Child of the Gatekeepers
• KOL184 | Intellectual Property is the Root of All Evil (PorcFest 2015)
• KOL190 | On Life without Patents and Copyright: Or, But Who Would Pick the Cotton? (PFS 2015)
• KOL101 | The Future (the End?) of Intellectual Property (Open Science Summit, 2011)
• KOL 037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory
• KOL013 | “Intellectual Property and Libertarianism,” Mises University 2009

See also:

• Anti-IP Youtube Videos: A Selection
• KOL409 | IP Law Tutorial, Part 1: Patent Law
• KOL411 | IP Law Tutorial, Part 2: Copyright Law
• KOL412 | IP Law Tutorial, Part 3: Trademark, Trade Secret, and Other

And a few selected blog posts:

• Intellectual Property and the Structure of Human Action
• Intellectual Property Rights as Negative Servitudes
• Classical Liberals and Anarchists on Intellectual Property
• Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory: Transcript
• The “If you own something, that implies that you can sell it; if you sell something, that implies you must own it first” Fallacies,
• Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012)
• “The Non-Aggression Principle as a Limit on Action, Not on Property Rights”
• “IP and Aggression as Limits on Property Rights: How They Differ”

Until I write a new book from scratch—tentatively titled Copy This Book—this will have to do.

[Update: see these more recent collections of essays regarding IP:

• Kinsella, Legal Foundations of a Free Society (Papinian Press, 2023) (Part IV)
• Kinsella, You Can’t Own Ideas: Essays on Intellectual Property (Papinian Press, 2023)
• Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (ebook; Papinian Press, 2023)]

Interesting recent discussion/debate between minarchist Richard Epstein and anarchist libertarian Michael Huemer at Victor Niederhoffer’s “Junto” meeting in New York. Go to around 1:07:22 or so. Some guy asks a question about patent law in a free society.

Huemer seems to oppose patent law, though in a fairly tepid and unprincipled fashion. Epstein has respectable arguments for minarchy over anarchy, but his arguments for patent law are completely hollow: his case is basically empirical and utilitarian, but he offers no empirical evidence to back up his pro-patent contentions (no one else has either, that I am aware of).

A few minutes later, Epstein argues for a muscular US government to keep order, etc.

Update: on a Facebook post, which I can no longer find, I had listed the top state evils:

1. Drug War
2. War
3. Taxation
4. Intellectual Property
5. Government Education
6. Central Banking/fed/inflation/business cycle

and I asked the open-borders libertarians, who oppose immigration restrictions, if they think immigration restrictions are really as bad as these top 6. Huemer responded:

Mike Huemer Yes, I think immigration restriction is a strong candidate for the worst government policy, comparable to the drug war. (And IP doesn’t belong on that list.) If you don’t see that we would say this, then you haven’t understood the open borders argument.

There was also another FB post which had some info on it but it, too, has been deleted. Odd.

Here’s more of the interchange from the other Facebook post:

Where does IP Rank Among the Worst State Laws?

In Masnick on the Horrible PROTECT IP Act: The Coming IPolice State, I noted some insane excesses of patent and copyright (like the precursor to SOPA), and wrote: I believe in days past, say, befor…

C4SIF.ORG

Monica Sophie Granger Why doesn’t IP belong on the list?

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Oliver Westcott The open borders argument (Caplan) seems to be purely one of economic benefit, yet the argument about the burden of the increase of the welfare state seems neglected. The same as the moral burden of having to associate with people through the force of anti-discrimination laws.

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Stephan Kinsella “If you don’t see that we would say this, then you haven’t understood the open borders argument.”

I think this is an unnecessarily condescending way of putting it. It coudl be an honest disagreement amongst principled and even radical libertarians. I am myself open borders and an anarchist (albeit a principled, rights-based one) and I do not agree immigration belongs on the list, and i do think I “understand” the open-borders argument. Indeed, I have understood it for maybe 30 years, unlike some johnny-come-lately libertarians.

As for the derisive comment that IP doesn’t belong on the list: i have provided reasons for my view as to why it does. Huemer does not. Perhaps Mike Huemer does not think it’s clear IP is unlibertarian, since his approach to anarchy is not rights-based–David Friedman for example is ambivalent about IP, even though he is a supposed anarcho-libertarian. I can’t recall Huemer’s approach to IP but let us just say that I totally disagree. IP clearly ranks up there with the top 5 or 6 state evils, and immigration, *even* if you accept the libertarian arguments against immigration restrictions–it’s not clear thati it belongs up htere on that list, any more than minimum wage does (as bad as it is).

***

Update: See this facebook post:

From Michael Huemer:

“Example 2: I start deliberately spreading false rumors that Walter Block is a Nazi. This causes him to be ostracized, lose his job, and be blacklisted by the SJW culture that is academia.

Almost everyone, including most libertarians, agrees that Walter should be able to sue me for defamation in court, and collect damages, coercively enforced, of course.”

Huemer seems unaware that most libertarians don’t accept defamation law. No wonder he’s also not solid on IP law. If you can’t get defamation law straight (which is a type of IP) you can’t get IP law straight.

https://c4sif.org/…/huemer-vs-epstein-on-intellectual…/

“Example 1: I promise to mow Ayn Rand’s lawn in exchange for her grading some of my papers. Rand grades the papers, with copious helpful comments (pointing out where students are evading reality, hating the good for being the good, etc.), but then I don’t mow the lawn. I also refuse to do anything to make amends for my failure. Haha.

Almost everyone, including libertarians, thinks that the state can force me to mow the lawn or otherwise make amends (e.g., pay the money value of a mowed lawn).”

Uh, no. Most libertarians do NOT think the state or legal system can force you to mow the lawn. This is specific performance, and if you can justify that you can justify voluntary slavery agreements, which most libertarians do not.

“NAP: It is always wrong to initiate force against other people.”

Huemer might want to take a look at the work of fellow philosophers Rasmussen and Den Uyl, who view rights as metanorms, not as normal personal norms. See Douglas B. Rasmussen & Douglas J. Den Uyl, “Why Individual Rights? Rights as Metanormative Principles,” in Norms of Liberty: A Perfectionist Basis for Non-Perfectionist Politics (Pennsylvania State University Press, 2005):

“An individual’s right to liberty is thus not in essence a normative principle. Rather, it is a metanormative principle. In other words, it is concerned with the creation, interpretation, and justification of a political/legal context in which the possibility of the pursuit of flourishing is secured.”

https://fakenous.substack.com/p/naps-for-babies

Henry George (1839–97): bad on property and rights (e.g. his nutty single-tax ideas, ably dissected by Rothbard here); and bad on IP too. He makes an artificial (and unsustainable) distinction between patent and copyright (like many political thinkers who pontificate on IP, he doesn’t seem to really understand the legal systems of patent and copyright that he feels compelled to weigh in on); he bases his critique of patent on ridiculous notions about the role of labor in the acquisition of property rights (like many thinkers, he relies on a labor theory of property, a cousin of the pernicious labor theory of value); and his defense of copyright is horrific and illiberal, as Benjamin Tucker (who also disagreed with Spooner’s similar views)¹ noted.

Rothbard himself praises George’s fallacious distinction between patent and copyright. See Man, Economy, and State and Power and Market, Scholars Edition, pp. 745-46:

For more, see: Classical Liberals and Anarchists on Intellectual Property.

From Wendy McElroy: “Copyright and Patent in Benjamin Tucker’s Periodical”

The Debate Debuts: The Question of Patent

In the July 7, 1888, issue of Liberty, Tucker critiqued an article by Henry George that had appeared in the June 23 issue of the Standard. George claimed that ownership came from production, not discovery. This led him to reject patents, describing them as ideas that manipulated the laws of nature through machinery. He wrote, “No man can justly claim ownership in natural laws, nor in any of the potentialities which nature hold for it.” To those who protested that only the machine, not the natural law, was being claimed as property, George replied that the principles upon which the machines operated were intrinsic to nature. For example, a windmill was nothing more than an expression of how the force of wind pushing against a surface could produce power. Thus, every patent reduced to an ownership claim over an expression of nature.

George distinguished between two forms of labor that went into producing an invention. The first form was the mental labor of working out the operating principles of the machine — this was the labor of discovery. But since the principles existed in nature — e.g., how X amps of electricity reacts to Y ohms of resistance — they were available for discovery by anyone and could not be claimed by one man. The second form of labor was the actual construction of a specific machine from raw materials — this was the labor of production. Thus, the specific machine a man produced, such as a wheelbarrow, could be claimed as his property but he could not prevent another man from producing his own wheelbarrow.

George then proceeded to distinguish between patents and copyright, and to argue that the latter was a defensible form of intellectual property. That is, he claimed that the labor of production expended on how to say something gave a man an ownership right to that arrangement of words and not merely to one specific instance of the arrangement.

In a response that bordered on an ad hominem attack, Tucker called George “one of the most dangerous men among all of those now posing as public teachers.” It was George’s defense of copyright that elicited Tucker’s scorn. Henceforth, the topic of intellectual property would have two well-defined threads in which patent and copyright were addressed as separate issues.

Concerning patents, Tucker agreed that the act of discovery gave a man no more right to a principle, such as electricity, than simply stepping upon a continent gave him a right to that landmass. Only the labor of production endowed ownership. And, since “the work of production is required afresh in the case of each particular thing,” no particular thing can be claimed by anyone other than the individual who manufactured it.

Tucker then raised controversy by contending that the act of discovering the principle anew was not even required for someone to claim equal ownership to a specific machine for the simple reason that such independent invention might not be possible. For example, Tucker disputed whether any man living in civilization had the ability to independently invent the steam engine; if a man had seen this machine, he was thereby deprived of the ability to conceive it anew. That is, a man who had seen a steam engine could not be totally original in inventing one even if he honestly attempted to be so. “This being the case,” concluded Tucker, “a patent given to him [the inventor] puts the entire world at his mercy.”

See also Wendy McElroy, “Patently Improper,” The Freeman (Sept. 27, 2011):

Patents and copyright quickly part company. The most famous libertarian to make a sharp distinction between the two was the single-tax champion Henry George. He rejected the former and embraced the latter.

Why? In his periodical The Standard (June 23, 1888), George explained his objection to patents, “No man can justly claim ownership in natural laws, nor in any of the potentialities which nature hold for it.” A patent involves identifying and using a law of nature or a fact of reality, neither of which have been created by the discoverer.

Discovery versus Production?

George distinguished between two forms of labor involved in invention. The first was the mental labor of working out operating principles: discovery. The second form was the construction of a specific machine or implementation: production.

Since the principles discovered were preexisting – such as how X amps of electricity react to Y ohms of resistance — they  should be available for anyone to use and not monopolized by one man. To the argument that specific implementations – such as voltmeters — did not exist in nature and so could be patented, George replied that the principles on which machines operated were intrinsic in nature. A windmill expresses how the force of wind pushing against a particular surface can produce power. Thus every patent amounts to an ownership claim over an expression of nature and the logic of its application. A man could own a specific windmill he produced but he could not prevent others from similarly producing their own windmills.

This is a common distinction between patents and copyright. Patents are an ownership claim over preexisting natural laws and their implementation; copyright is a claim to “goods” with no preexistence.

See also Julio H. Cole, “Patents and Copyrights: Do the Benefits Exceed the Costs?”, J. Libertarian Stud. 15, no. 4 (Fall 2001): 79–105, p. 94 et seq., discussing the pro-copyright views of Rothbard and George.

1. See Tucker on Spooner’s One Flaw. Also, on Tucker’s confused argument against IP, see Molinari on IP. See also Benjamin Tucker and the Great Nineteenth Century IP Debates in Liberty Magazine. [↩]

From the great Nina Paley, speaking at TEDxMaastricht.

Reason and a group called “R Street” did some a panel discussing IP. The panel consisted mainly of  tech/libertarian pundits who do not take a principled propertarian stance on IP, and talking a lot about areas most of them are not specialized in. The panelists bat around various ideas about IP but never oppose it in principle, and never adduce good arguments for it, either. This kind of discussion only confirms my view that There are No Good Arguments for Intellectual Property. Here we have a situation where most libertarians are turning against IP and seeing how monstrous it is:¹ Austrians, anarchists, Rothbardians, left-libertarians, tech-libertarians—and we a panel of mostly timid policy wonks.² It’s good that most of them are skeptical of IP and want to rein it in, but none of them are IP abolitionists. They basically think IP has “gone too far”. Missed opportunity.

And it’s not impossible for mainstreamish/popular-format libertarian programs to do a good job—see, e.g., my Stossel show appearance from earlier this year, which at least features two hard-core, principled, libertarian opponents of IP (me and David Koepsell). At least on Stossel there were two people who know the law and have a principled, and libertarian, take on IP. Not so on the Reason/R-Street discussion. It’s a bit surprising, since in the past, there have been a couple of IP pieces at Reason that were pretty solid in opposing IP.³

1.  Masnick on the Horrible PROTECT IP Act: The Coming IPolice State  [↩]
2.  The Death Throes of Pro-IP Libertarianism; The Four Historical Phases of IP Abolitionism; The Origins of Libertarian IP Abolitionism. [↩]
3. Update: See Lindsey’s article Why intellectual property and pandemics don’t mix: “patent law, properly restrained, constitutes one important element of a well-designed national innovation system…. [↩]

This is included as ch. 6 of Stephan Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023).

***

I’ve discussed before the IP stances of various older libertarians, classical liberal, and anarchist thinkers.¹ Below is a list of, sorted chronologically (by date of birth), indicating each thinker’s stance on IP: Good guys in blue (lighter blue for the ones that are semi-good); bad in red. Since this list was started, I’ve begun to include the occasional non-libertarian, and more modern or recent thinkers as well (not everyone listed, especially among more recent people listed, is all that notable). This list cannot hope to be comprehensive but I intend to supplement it from time to time.

For more on modern libertarian views on IP see The Four Historical Phases of IP Abolitionism, The Origins of Libertarian IP Abolitionism; see also Pro-IP “Anarchists” and anti-IP Patent Attorneys and Patent Lawyers Who Oppose Patent Law. I also list several anti-IP libertarians in “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” at n.22,², most of which are now also listed here.

For some of the libertarian and conservative think tanks, here are some that are weak or pro-IP.³ A few are good: C4SIF, Mises Institute, Property and Freedom Society, Libertarian Party.

Institutes/Foundations Bad/Weak on IP

• Cato Institute:
  • Disinvited From Cato
  • Cato on IP
  • Cato vs. Public Citizen on IP and the TPP
  • Cato Tugs Stray Back Onto the Reservation; Epstein on reimportation
• Independent Institute:
  • Independent Institute on The ‘Benefits’ of Intellectual Property Protection
  • Shughart’s Defense of IP
• Federalist Society:
  • More defenses of IP by the Federalist Society
  • Anti-IP Material Needed in the IP Section of the Federalist Society’s “Conservative & Libertarian Legal Scholarship: Annotated Bibliography”
  • James Stern: Is Intellectual Property Actually Property? [Federalist Society No. 86 LECTURE]
• Acton Institute: Sabhlok and Rogan on Intellectual Property.
• Heritage: Objectivist Adam Mossoff and Heritage Argue for Internet Censorship to Protect Copyrights

Thinkers

• John Locke (1632–1704): weak, confused, but not as bad as some, like Adam Mossoff, claims he is⁴
• David Hume (1711–76): unclear, but seemed to reject aspects of Locke’s labor argument that are now used to justify IP⁵
• Adam Smith (1723–1790): apparently in favor, but somewhat cautious and skeptical⁶
• Blackstone (1723–1780): apparently opposed to patents⁷
• Thomas Paine (1737–1809): pro-copyright⁸
• Jeremy Bentham (1748–1832): weak⁹
• James Madison (1751–1836): bad¹⁰
• Jean-Baptiste Say (1767–1832) bad¹¹
• Charles Comte (1782–1837): good¹²
• Charles Dunoyer (1782–1862): good¹²
• Frédéric Bastiat (1801–50): In one writing he seems skeptical of patents, but elsewhere expresses support for copyright (“literary property”), based, as usual, on the confused labor theory of value and the tired old “fruits of one’s labor” metaphor.¹³ 
• William Leggett (1801–39): very good, for his time, on both patent and copyright¹⁴
• Charles Coquelin (1802-52): bad¹²
• John Stuart Mill (1806-1873): bad¹⁵
• Michel Chevalier (1806–1879): good¹⁶
• Lysander Spooner (1808–87): horrible on IP, just about the worst, next to Galambos, Rand, and Schulman¹⁷
• Pierre-Joseph Proudhon (1809–65): possibly bad on IP (claim disputed)¹⁸
• JK Ingalls (1816–98): Seems to be almost identical to Tucker: good on IP, but for confused reasons, including hostility to the “land monopoly”¹⁹
• Gustave de Molinari (1819–1912): bad on patent and copyright²⁰
• Herbert Spencer (1820–1903): horrifically bad on IP²¹
• Leo Tolstoy (1828–1910) good on copyright
• Auberon Herbert (1838–1906): unknown²²
• Henry George (1839–97): bad on copyright²³
• James Walker (Tak Kak) (1845–1904): excellent on both patent and copyright, like Tucker²⁴
• Eugen Böhm-Bawerk (1851–1914): expresses skepticism about both patent and copyright²⁵
• Benjamin Tucker (1854–1939): great on IP, but perhaps not completely for the right reasons²⁶
• Albert Jay Nock (1870–1945): possibly skeptical of patents²⁷
• H.L. Mencken (1880–1956): unknown
• Ludwig von Mises (1881–1973): skeptical, but mixed and confused on IP; seem to be somewhat anti-patent but pro-copyright²⁸
• Frank Knight (1885–1972): skeptical of patents, but perhaps in favor of state funding of R&D²⁹
• Henry Hazlitt (1894–1993): weak³⁰
• Arnold Plant (1898–1978): skeptical of empirical case for patents³¹
• Lionel Robbins (1898–1984): skeptical of empirical case for patents³²
• Leonard Read (1898–1983): appeared to be skeptical of ownership of ideas in general, i.e. anti-IP³³
• F.A. von Hayek (1899–1992): seemed to be leaning against IP, though not entirely clearly³⁴
• Fritz Machlup (1902–83): skeptical of the empirical case for patents³⁵
• Ayn Rand (1905–82): bad (central plot point of The Fountainhead: IP terrorism)³⁶
• Robert LeFevre (1911–86): expresses very good, early skepticism of the notion of IP or ownership of ideas. But, as noted in an update in the post linked below, LeFevre oddly has some quasi-pro-IP comments on the copyright page of his book This Bread Is Mine, which seem incompatible with his anti-IP thoughts expressed elsewhere. Not sure if his thinking changed on this, or he was just confused.³⁷
• F.A. “Baldy” Harper (1905–73): indications are he was or would have been bad on IP; infected by the Lockean “creationism” virus³⁸
• Milton Friedman (1912–2006): bad³⁹
• Bettina Bien Greaves (1917–2018): bad/weak/confused (just as Mises and Rothbard were)
• Andrew Joseph Galambos (1924–97): bad (one of the worst, with Spooner a close competitor for this title): total nutjob on IP, utterly in thrall the scientism, the labor theory of property, and non-rigorous, overly metaphorical reasoning
• Murray N. Rothbard (1926–95): decent on patent; confused on copyright; good on defamation
• Morris (1926–1988) and Linda Tannehill (1939–?): weak/confused on IP. They were anarchists but advanced a strained argument as to how a free market, anarchist society could still enforce some version of Ayn Rand’s insane IP views. It can’t. They were wrong.⁴⁰ See The Market for Liberty, ch. 7 (confused comments about inventorship and royalties (i.e., patent law) and some vague assumption (like Rothbard tried to briefly advance) that IP law is based on contract–it’s not).
• Noam Chomsky (1926–): not a libertarian, but solidly against patents
• Thomas Sowell (1930–): bad⁴¹
• Israel Kirzner (1930–): seems to lean against IP, but not clearly⁴²
• Butler D. Shaffer (1935–2019): good⁴³
• Jan Narveson (1936–): pro-IP⁴⁴
• Robert Nozick (1938–2002): confused and weakly in favor of some form of patent law; very diletanttish reasoning, as often is the case for Nozick.⁴⁵
• Tibor Machan (1939–2016): confused and bad on IP⁴⁶
• Fred L. Smith Jr. (1940–24): According to Sheldon Richman, he was one of the early anti-IP libertarian intellectuals.⁴⁷ I am looking into this…
• Henri LePage (1941–): somewhat skeptical⁴⁸
• Walter Block (1941–): good⁴⁹
• Deirdre McCloskey (1942–): somewhat skeptical of patent and copyright, but not in favor of abolition and expresses no principled or coherent view
• Gary North (1942–): pretty good: appears to oppose patent and copyright on biblical and economic grounds, but favors trademark and defamation law⁵⁰
• Richard Epstein (1943–): bad⁵¹
• Bertrand Lemennicier (1943–2019): good⁵²
• Ejan Mackaay (1943–): bad⁵³
• David Friedman (1945–) (bad/confused)⁵⁴
• L. Neil Smith (1946–2021): bad⁵⁵
• Sam Konkin (1947–2004): good (see Copywrongs)
• Boudewijn Bouckaert (1947—): good
• William F. Shughart II (1947–): bad⁵⁶
• Mark Skousen (1947–): bad (private correspondence; see also Mark Skousen on Patents and IP)
• Frank van Dun (1947–): seems to be good on patent and copyright (at least this is implied); but weak on trademark⁵⁷
• George H. Smith (1949–2022): unknown; probably good
• Mary Ruwart (1949–): good: indicates here she is generally against IP (previously, position a bit unclear:  here she doesn’t clearly condemn defamation law, which is a type of IP [discussed further at this facebook post])
• Hans-Hermann Hoppe (1949–): good (great)
• Sheldon Richman (1949–): good (great)
• Ken Schoolland (1950–): seems very skeptical of patents⁵⁸
• Jacob “Bumper” Hornberger (1950–): apparently bad⁵⁹
• Randall Holcombe (1950–): unclear (said it’s an open question but admires my work)
• David R. Henderson (1950–): bad⁶⁰
• Wendy McElroy (1951–): good (the first to get it basically right from a libertarian perspective)
• Dale Nance (1952(?)—): good —as implied in his excellent article Dale A. Nance, “Foreword: Owning Ideas,” Harv. J. Law & Public Policy 13, no. 3 (Summer 1990): 757—74. Nance confirmed for me via email (May 20, 2023) that he tends to favor IP abolition and has libertarian inclinations in this regard, but that IP is not his primary field of research. See also his excellent article “Guidance Rules and Enforcement Rules: A Better View of the Cathedral,” 83 Virginia L. Rev. (1997): 837–937.
• Randy Barnett (1952–): told me personally (email dated May 5, 2024) he is an IP skeptic, that he used to be anti-IP when he was younger, but is more humble now and just an IP skeptic, but was never pro-IP
• Roy Cordato (1953—): seems to be skeptical of IP⁶¹
• J. Neil Schulman (1953–2019): very bad⁵⁵
• David K. Levine (1955–): see entry for Boldrine
• Michele Boldrine (1956–) (with David K. Levine): pretty good⁶²
• Tom Palmer (1956–): good (at least originally)⁶³
• Tyler Cowen: bad
• James DeLong: bad
• Matt Ridley (1958–): pretty good; somewhat skeptical about patent and copyright⁶⁴
• Peter Boettke (1960–):⁶⁵
• J.C. (Jan) Lester (unknown): confused and bad on IP⁶⁶
• Lawrence Lessig (1961–): weak/confused/unprincipled⁶⁷
• Glyn Moody (unknown): is critical of patent and IP abuse (techdirt posts) seems to strongly favor copyright abolition (see Walled Culture, ch. 9, final pages) (see here)
• Jeffrey A. Tucker (1963–): good⁶⁸
• Roderick Long (1964–): good (early radical libertarian opponent of IP)
• Stephen Davies: good
• Adam D. Moore (1965–): bad⁶⁹
• N. Stephan Kinsella (1965–): need I say more
• Alex Tabarrok (1966–): confused/bad-mixed⁷⁰
• Daniel Lacalle (1967–): confused/bad⁷¹
• Adam Thierer (?): weak, unprincipled⁷²
• Roberta A. Modugno (1965?): good⁷³
• Tom W. Bell (1965?—): fair; not abolitionist, but skeptical and favors significant rollbacks⁷⁴
• Stefan Molyneux (1966–): good⁷⁵
• Cory Doctorow: not abolitionist, but skeptical and favors significant rollbacks (I believe)
• Adam Mossoff: bad [basically: among the worst, along with Rand, Spooner, Galambos, and Schulman, all of whom were insane on IP]
• Michael Huemer (1969–): confused: doesn’t think it’s clear that IP is unlibertarian⁷⁶
• Paul Cwik: bad [so bad he’s hardly even wrong]
• Javier Milie: possibly pretty good⁷⁷
• Elon Musk (1971–): apparently pretty good⁷⁸
• Bryan Caplan (1971–): bad
• Thomas Massie (1971–): bad⁷⁹
• Tom Woods (1972–): good⁸⁰
• Mike Masnick (1974—): fair; not abolitionist, but skeptical and favors significant rollbacks⁸¹
• Per Bylund (1975–): good⁸²
• Jerry Brito (1976?–): skeptical of IP and favors reform, but not abolition⁸³
• Isaac Morehouse (1976?–): good⁸⁴
• Jack Dorsey (1976–): apparently good⁸⁵
• Timothy Sandefur (1976?—): good⁸⁶
• Robert P. Murphy (1976–): good ⁸⁷
• Jacob Huebert (1978?–): good⁸⁸
• Peter Leeson (1979–): not clear; touches on it briefly in this paper
• Vin Armani, now known as Ciprian (1978?—): good⁸⁹
• Saifadean Ammous (1980–): good⁹⁰
• Justin Amash (1980–): weak/bad⁹¹
• Adam Kokesh (1982–): good⁹²
• Dave Smith (1983–): good⁹³
• Jack V. Lloyd (1982?—): good⁹⁴
• Juan Ramón Rallo (1984—): good
• Chase Rachels (1989?—): good⁹⁵
• Sharon Presley (1943–2022); and some less-known more modern soi-disant anarchists who are nonetheless confused and bad on IP: Bob Wenzel, for example,⁹⁶ as well as other lesser/modern figures such as Chris LeRoux,⁹⁷ Shayne Wissler,⁹⁸ Silas Barta (aka John Sharp, “Person,” Richard Harding/Hard Dick).⁹⁹

1. See The Four Historical Phases of IP Abolitionism, The Origins of Libertarian IP Abolitionism, The Death Throes of Pro-IP Libertarianism. [↩]
2. In Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023). [↩]
3. Collected at Independent Institute on the “Benefits” of Intellectual Property Protection; Speaking at APEE IP Panel in Guatemala. [↩]
4. See the discussion of Locke and comments by Bell and Deazley etc. here: Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”. [↩]
5. see Hume on Intellectual Property and the Problematic “Labor” Metaphor  [↩]
6. From Lectures on Jurisprudence, Part I, Div. III, §8, p. 130: “The privilege, however, of vending a new book or a new machine for fourteen years has not so bad a tendency, it is a proper and adequate reward for merit.” From Wealth of Nations, G.Ed. p. 754: “When a company of merchants undertake, at their own risk andThe grant of a temporary monopoly to a joint-stock company may sometimes be reasonable, but a perpetual monopoly creates an absurd tax expence, to establish a new trade with some remote and barbarous nation, it may not be unreasonable to incorporate them into a joint stock company, and to grant them, in case of their success, a monopoly of the trade for a certain number of years. It is the easiest and most natural way in which the state can recompense them for hazarding a dangerous and expensive experiment, of which the public is afterwards to reap the benefit. A temporary monopoly of this kind may be vindicated upon the same principles upon which a like monopoly of a new machine is granted to its inventor, and that of a new book to its author.” (discussed in Adam Smith and the Role of Government). See also The Economist: “’The granting [of] patents “inflames cupidity”, excites fraud, stimulates men to run after schemes that may enable them to levy a tax on the public, begets disputes and quarrels betwixt inventors, provokes endless lawsuits…The principle of the law from which such consequences flow cannot be just.’ … The Economist may have put it rather strongly in 1851, but its disapproval of patents represented conventional wisdom at the time. A century earlier, Adam Smith had described them as necessary evils, to be handed out sparingly, and many other economists have since echoed his reservations. Patents amount to temporary monopolies on useful new inventions.” See also Tom Bell’s comments showing Smith did not view IP as natural rights. Update: See also pp. 7–8 of Machlup & Penrose, “The Patent Controversy in the Nineteenth Century” (1950), where the authors point out that while Smith argued that monopolies in trade are harmful, he thought that “a temporary monopoly granted to the inventor of a new machine could be justified as a means of rewarding risk and expense.” [Citing Wealth of Nations, at Bk. V, chap. i., Part III, 388, from the Oxford version 1928; online]. [↩]
7. See Bob Baxt and Henry Ergas, “Australia” country chapter, in R Ian McEwin, Intellectual Property, Competition Law and Economics in Asia, p. 98 (2011), stating: “Arguments that ‘publicutility requires that production of the mind should be diffused as widely as possible’ [5] were common in the English literary property debate of the eighteenth century; so too was the hostility embodied in Blackstone’s view that ‘mechanical inventions tend to the improvement of arts and manufactures, which employ the bulk of people; therefore they ought to be cheap and numerous’. [6]” citing [5] “The Cases of Appellant and Respondents in the Cause of Literary Property before the House of Lords (1774) 6, cited in B Sherman and L Bently, The Making of Modern Intellectual Property Law (Cambridge, Cambridge University Press, 1999) 29.” and [6] “W Blackstone [as Counsel] in Tonson v Collins (1760) 96 ER 189″. See also Ronan Deazley, Commentary on: Tonson v. Collins (1762); and Tonson v. Collins, London (1762). [↩]
8. See Tom Paine, Copyright Statist. [↩]
9. See p. 7 of Machlup & Penrose, “The Patent Controversy in the Nineteenth Century” (1950) [↩]
10. Madison Lied about Patent and Copyright [↩]
11. See Say, A Treatise on Political Economy:
12. “In Great Britain, the individual inventor of a new product or of a new process may obtain the exclusive right to it, by obtaining what is called a patent. While the patent remains in force, the absence of competitors enables him to raise his price far above the ordinary return of his outlay with interest, and the wages of his own industry. Thus he receives a premium from the government, charged upon the consumers of the new article; and this premium is often very large, as may be supposed in a country so immediately productive as Great Britain, where there are consequently abundance of affluent individuals, ever on the look-out for some new object of enjoyment. Some years ago a man invented a spiral or worm spring for insertion between the leather braces of carriages, to ease their motion, and made his fortune by the patent for so trifling an invention.Privileges of this kind no one can reasonably object to; for they neither interfere with, nor cramp any branch of industry, previously in operation. Moreover, the expense incurred is purely voluntary; and those who choose to incur it, are not obliged to renounce the satisfaction of any previous wants, either of necessity or of amusement.
13. See also p. 7 of Machlup & Penrose, “The Patent Controversy in the Nineteenth Century” (1950); also Louis Rouanet, “Michel Chevalier’s Forgotten Case Against the Patent System” (2015). [↩]
14. According to Louis Rouanet, “Michel Chevalier’s Forgotten Case Against the Patent System” (2015). [↩] [↩] [↩]
15. See Economic Harmonies, ch. X, which seems vaguely critical of the idea of patents; and clearer mentions in “Propriété et Spoliation“. Re Bastiat being in favor of not only copyright, or “literary property,” but in fact indefinite or perpetual copyright, see “Discours au cercle de la librairie” (“Speech to the bookstore circle”). In Economic Harmonies, ch. X, he writes: “if it were possible for the individual, family, class, or nation that finds certain natural advantages within reach or makes an important discovery in industry or acquires through thrift instruments of production, to be permanently exempt from the law of competition, it is obvious that this individual, family, or nation would retain the monopoly of its exceptional remuneration for all time to come, at the expense of mankind. Where would we be if the inhabitants of the tropics, free from all competition among themselves, were able, in exchange for their sugar, coffee, cotton, and spices, to demand from us, not amounts of labor equal to theirs, but pains equal to those we ourselves would have to take in order to raise these commodities in our rugged climate? By what an immeasurable distance would the various social strata of mankind be separated if only the race of Cadmus *92 could read; if no one could handle a plow unless he could prove that he was a direct descendant of Triptolemus; *93 if only Gutenberg’s descendants could print, Arkwright’s sons could operate a loom, Watt’s progeny could set the funnel of a locomotive to smoking? But Providence has not willed that these things should be, for it has placed within the social machinery a spring as amazingly powerful as it is simple. Thanks to its action every productive force, every improved technique, every advantage, in a word, other than one’s own labor, slips through the hands of its producer, remaining there only long enough to excite his zeal with a brief taste of exceptional returns, and then moves on ultimately to swell the gratuitous and common heritage of all mankind. All these discoveries and advantages are diffused into larger and larger portions of individual satisfactions, which are more and more equally distributed. Such is the action of competition. We have already noted its economic effects; it remains for us to glance at a few of its political and moral consequences. I shall confine myself to pointing out the most important.” Yet in “Discours au cercle de la librairie” he supports perpetual copyright. One commentator seems to note the contradiction: in note 9: “And yet! Bastiat would have done better to question this apparent contradiction further, until he found its substance; because despite his denials, Bastiat’s position in matters of literary property is indeed a form of protectionism that goes unnoticed. It must be said that he probably did not have a sufficiently valuable interlocutor to understand his position and show him the contradiction with valid arguments from his own point of view. As for the argument that follows, it must be said that with regard to special printing and publishing services, the usual arguments against protectionism apply to denounce the ban on printing and publishing abroad, while with regard to the authorship service, this is supposed to have been paid and remunerated before any printing, and any voluntary remuneration a posteriori for the work can then only be patronage and no longer an exchange of service. ( note from Faré, 2000-07-09 ).” See also Bastiat, Economic Sophisms, pp. 37–38. [↩]
16.  William Leggett on Intellectual Property  [↩]
17. See p. 7 of Machlup & Penrose, “The Patent Controversy in the Nineteenth Century” (1950), noting that Mill “stated categorically that [the condemnation of monopolies ought not to extend to patents …'”; also Mackaay, p. 359, n. 273: “John Stuart Mill justified intellectual property in similar terms: ‘an exclusive privilege, of temporary duration is preferable; because it leaves nothing to anyone’s discretion; because the reward conferred by it depends upon the invention’s being found useful, and the greater the usefulness, the greater the reward; and because it is paid by the very persons to whom the service is rendered, the consumers of the commodity’ (Mill 1985 [1848], 296 (Bk V, Ch. X, §4 [10.24]).” [↩]
18. Louis Rouanet, “Michel Chevalier’s Forgotten Case Against the Patent System” (2015); Chevalier on Patents as Industrial Monopoly Privileges. [↩]
19. Tucker on Spooner’s One Flaw  [↩]
20.  Proudhon: For Intellectual Monopoly  [↩]
21. See his Social Wealth [1885], pp. 85–86: “The idea of a natural exclusive right in invention or in the publishing of books is absurd. If there is one, why our patent and copyright laws? Why not defend the right at common law or by general consent? Because a man utters a new word, or coins a new phrase, is that his property which no one may repeat? If we may not be prevented from reiterating it, why from rewriting it or reprinting it? Because a man builds a house to shelter himself and family, shall all mankind be compelled to dwell in caves to the end of time? or pay him and his descendants a royalty or kingly tribute? Doubtless,  society will feel under obligation to one who has invented a useful thing or written an instructive or entertaining book. And the man who has conceived or perfected either of these has the power of property over it, while he keeps it private or secret, and will usually find means to secure an advantage from it before making it public property, as Daguerre did with his beautiful invention. Society, too, may take lawful methods of awarding services of that kind; but to create a monopoly is not one of them. For books and inventions a premium might be allowed for a given time; but not to interfere with the freedom of manufacture and sale by all who would respect the right.” See also Wikipedia: “He was an associate of Benjamin Tucker and the “Boston anarchists.” He believed that government protection of idle land was the foundational source of all limitations on individual liberty.” [↩]
22. Molinari (and Tucker, and Mutualists) on IP  [↩]
23. See The Principles of Ethics, Vol. 2, Ch. 13, §§ 303–306; also, according to Roderick Long, from Spencer’s Autobiography. See also Spencer’s Social Statics, ch. XI, § 3: “As already remarked, it is a common notion, and one more especially pervading the operative classes, that the exclusive use by its discoverer of any new or improved mode of production, is a species of monopoly, in the sense in which that word is conventionally used. To let a man have the entire benefit accruing from the employment of some more efficient machine, [139] or better process invented by him; and to allow no other person to adopt and apply for his own advantage the same plan, they hold to be an injustice. Nor are there wanting philanthropic and even thinking men, who consider that the valuable ideas originated by individuals—ideas which may be of great national advantage—should be taken out of private hands and thrown open to the public at large. …. —And pray, gentlemen,—an inventor might fairly reply,—why may not I make the same proposal respecting your goods and chattels, your clothing, your houses, your railway shares, and your money in the funds? If you are right in the interpretation you give to the term ‘monopoly,’ I do not see why that term should not be applied to the coats upon your backs and the provisions on your dinner tables.” See also Spencer, The Principles of Ethics, vol. II, Part IV, Ch. XIII, “The Right of Incorporeal Property.” TBD: ADD stuff from the recent 1981 book on liberty by alan Burris… [↩]
24. Jeff Tucker assures me that Herbert was good on IP but I can find nothing in The Right and Wrong of Compulsion by the State and Other Essays [1885] definitive, though he has a bit of pro-IP-ish “libertarian creationism” in his comment “We claim that the individual is not only the one true owner of his faculties, but also of his property, because property is directly or indirectly the product of faculties, is inseparable from faculties, and therefore must rest on the same moral basis, and fall under the same moral law, as faculties. Personal ownership of our own selves and of our own faculties, necessarily includes personal ownership of property. As property is created by faculties, it would be idle, it would be a mere illusion, to speak of an individual as owner of his own faculties, and at same time to withhold from him the fullest and most perfect rights over his property, if such property has been rightfully acquired” [emphasis added] [↩]
25. Henry George on Intellectual Property and Copyright  [↩]
26. See William Leggett on Intellectual Property; and Wendy McElroy, For Liberty, Life and Property….But Not The Ownership of Ideas [↩]
27.  Böhm-Bawerk on Patent and Copyright  [↩]
28.  Molinari (and Tucker, and Mutualists) on IP; see also “Benjamin Tucker and the Great Nineteenth Century IP Debates in Liberty Magazine” (July 11, 2022). [↩]
29. According to a friend, “In his biography of Jefferson, he claims that Jefferson was against patents, and his phrasing makes it appear that he was against them, too. In his narrative about Jefferson’s views, he refers to them as monopolies.” [↩]
30. Human Action 3rd rev. ed. Chicago: Henry Regnery (1966), chap. 23, section 6, pp. 661–62; see also pp. 128, 364; see also Kinsella, “Mises on Intellectual Property” [↩]
31. Knight believed the patent system “is an exceedingly crude way of rewarding invention. Not merely do the consumers of the product pay, which is doubtless fair, but large numbers of other persons suffer who are prevented from using the commodity by the artificially high price. And as the thing works out, it is undoubtedly a very rare and exceptional case where the really deserving inventor gets anything like a fair reward. If any one gains, it is some purchaser of the invention or at best an inventor who adds a detail or finishing touch that makes an idea practicable where the real work of pioneering and exploration has been done by others. It would seem to be a matter of political intelligence and administrative capacity to replace artificial monopoly with some direct method of stimulating and rewarding research.” Risk, Uncertainty, and Profit, “Part III, Chapter XII: Social Aspects of Uncertainty and Profit,” p. 372 (1921). As noted by Bob Baxt and Henry Ergas, “Australia” country chapter, in R Ian McEwin, Intellectual Property, Competition Law and Economics in Asia, p. 99 & n9 (2011), this was “a view the Nobel laureate in economics, Kenneth Arrow, echoed, some 40 years later, in his classic article on the economics of research and development (R&D). … Although often cited by those who support strong IPRs, suggesting that as with so much economic literature, it is far more often cited than read, Arrow’s main conclusion is that ‘for optimal allocation [of resources] to invention it would be necessary for the government or some other agency not governed by profit-and-loss criteria to finance research and invention.’ K. Arrow, ‘Economic Welfare and the Allocation of Resources to Invention’ in The Rate and Direction of Inventive Activity: Economic and Social Factors (National Bureau of Economic Research, 1962) 623. [↩]
32. In Hazlitt’s article “Patents and Monopoly,” New York Times, December 14, 1938 (p. 24; uncredited), he seems slightly skeptical of patents. He acknowledges that the government’s grant of patents helps create the monopolies that the government then complains about. He also wonders if patents have really promoted progress, or whether perhaps their “abuse” has hindered progress. Still, he does not seem to favor abolition or to oppose patents on principle. And in his 1962 National Review review of Rothbard’s MES, he criticizes Rothbard’s “abstract doctrinaire logic” such as his “sharp contrast between copyrights and patents, and his implication that the former might well be granted in perpetuity and the latter not at all”. He is right that Rothbard is wrong to imagine a sharp contrast between patent and copyright, and Hazlitt appears to oppose copyright in perpetuity (but not completely), and to oppose the abolition of patent law. Later he criticizes Rothbard for opposition to libel law (which very similar to IP law, in establishing intangible “reputation rights” [as trademark law also does]), and blackmail law, indicating Hazlitt favored established positive law, both common law (blackmail and libel) and statutory law (e.g. patent law). Hazlitt is very confused here, accusing Rothbard of being “misled by his epistemological doctrine of “extreme apriorism” into trying to substitute his own instant jurisprudence for the common law principles built up through generations of human experience”–since patent and copyright law were not based on gradually developed common law, but rather the result of state interference in human life and the market, and statutes such as the Statute of Anne 1710 [copyright] and the Statute of Monopolies 1623 [patent], and the patent and copyright clause in the US Constitution of 1789 and the patent and copyright statutes enacted immediately after by Congress. [↩]
33. “The Economic Theory Concerning Patents for Inventions,”Economica, New Series, 1, no. 1 (Feb., 1934). See also Robert Van Horn & Matthias Klaes, “Intervening in Laissez-Faire Liberalism: Chicago’s Shift on Patents,” in
34. Building Chicago Economics: New Perspectives on the History of America’s Most Powerful Economics Program: “Echoing the anti-patent concerns of U.S. political leaders and the U.S. Supreme Court were two future European members of the Mont Pèlerin Society, Arnold Plant[12] and Michael Polanyi.[13] Plant maintained that patents, like all forms of monopoly, were deleterious to society because they diverted resources from other forms of production that might be more beneficial to society. According to Plant, with a patent system in place, a certain combination of output would result – say, Combination A. With an open market price system in place and without a patent system, another combination of output would result – say, Combination B. Which combination was more generally useful? According to Plant, this could not be determined by any system of economic analysis. Thus, he trenchantly stated, “the science of economics as it stands to-day furnishes no basis of justification for this enormous experiment in the encouragement of a particular activity by enabling monopolistic price control” (51). In lamenting the economic troubles of England, Plant asked: “Can it be that the patent system is in part responsible for our present economic troubles?” (51)  14.” Note 14: ”  In providing additional criticisms of the patent system, Plant’s analysis included four noteworthy anti-patent claims. First, Plant observed that patents were unnecessary in some industries for the production of inventions. Without patents, the fashion industry burgeoned with a high rate of invention. Additionally, the creation of inventions in the field of medicine took place, partly due to altruistic motives and professional drive for repute.  Second, according to Plant, the patent system only served the one who secured the patent, providing no financial reward to the numerous other participants in the invention process. Plant incisively stated, “Lotteries in open competition there may well be; but the lottery of the patent system awards but one prize, and that a monopoly, while those who subscribe most of its value may be precluded from qualifying for the prize” (46). Third, Plant asserted that patents prevented future discoveries because an inventor, fearing that he or she would transgress another’s patent, would be deterred. Plant observed, “competitors instead of helping to improve the best, are compelled in self-preservation to apply themselves to the devising of alternatives which, though possibly inferior, will circumvent the patent” (46). Thus, for Plant, the patent system caused a mal-distribution of resources. Fourth, the patent system was no longer necessary to ensure that businesses did not conceal their inventions. Although the patent system might have had a beneficial role to play in the eighteenth century, when numerous small businesses tended to be individually owned, the patent system, according to Plant, had no equivalent role to play in the early twentieth century, which depended on large scale manufacture. For Plant, because of large-scale manufacture, protracted secrecy tended to be infeasible. Even though there might be exceptions, such as a chemical process, Plant maintained, “such cases, if they indeed exist outside the pages of detective fiction and sensational literature, must surely be exceptional, and unlikely to be eradicated by the inducements of temporary patent production” (44).” Plant page references to this; Polanyi page references to Philip Mirowski, The Effortless Economy of Science? [↩]
35.  Lionel Robbins on the Patent Monopoly  [↩]
36.  Leonard Read on Copyright and the Role of Ideas  [↩]
37. see 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  [↩]
38. U.S. Senate Subcommittee On Patents, Trademarks & Copyrights, An Economic Review of the Patent System, 85th Cong., 2nd Session, 1958, Study No. 15 (text excerpt) [“Report to the US congress from 1958, which also extensively narrates the history of the patent movement and of earlier economic research on this subject. Machlup, a renowned American economist of Austrian origin, is the first author of a large treatise on knowledge economics and other treatises which belong to the teaching repertoire of economics departments in universities. His report cites a wealth of historical and economic evidence to refute most of the reasoning used by lawyers to legitimate the patent system.”]; Fritz Machlup & Edith Penrose, “The Patent Controversy in the Nineteenth Century,” Journal of Economic History 10 (1950), p. 1 [↩]
39. On The Fountainhead as IP Terrorism: “I designed Cortlandt. I gave it to you. I destroyed it.” [↩]
40. LeFevre on Intellectual Property and the “Ownership of Intangibles” [↩]
41. KOL 037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory; “The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism” (Powerpoint; PDF version), Austrian Scholars Conference 2008 Rothbard Memorial Lecture (audio; video; Google Video version); Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”; Libertarian Creationism; Rand on IP, Owning “Values”, and “Rearrangement Rights”; Locke, Smith, Marx and the Labor Theory of Value.  [↩]
42. Capitalism and Freedom, p. 127: “In both patents and copyrights, there is clearly a strong prima facie case for establishing property rights.” [↩]
43. IP as Contract [↩]
44. Tabarrok and Murphy: Why Are US Drug Prices So High?  [↩]
45.  see Cordato and Kirzner on Intellectual Property  [↩]
46. See A Libertarian Critique of Intellectual Property; KOL238 | Libertopia 2012 IP Panel with Charles Johnson and Butler Shaffer. But weaker than David Gordon claims. I have a blog post forthcoming. [↩]
47. Kraft & Hovden claim Narveson is anti-IP but this is incorrect. In The Libertarian Idea he hints at being pro-IP (“Those who produce information produce a useful product, and it can be bought and sold, spawning its own particular technologies and organizational problems (copyright questions, for instance). p. 218”); see also Jan Narveson – A Defense of Intellectual Property Rights and “Privacy, Intellectual Property, and Rights.” [↩]
48. 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. [↩]
49. See references in Remembering Tibor Machan, Libertarian Mentor and Friend: Reflections on a Giant . [↩]
50. KOL457 | Sheldon Richman & IP; Andre from Brazil re Contract Theory, Student Loan Interest Payments, Bankruptcy, Vagueness, Usury. See also Tom Palmer, “Intellectual Property: A Non-Posnerian Law and Economics Approach”: “I wish to thank many individuals for their helpful comments on individual drafts, including my colleagues at the Institute for Humane Studies at George Mason University Leonard P. Liggio, Walter Grinder and Jeremy Shearmur, Fred L. Smith, Jr. of the Competitive Enterprise Institute, and Milton Mueller, Wendy Gordon, M.L. Rantala, David Friedman, Mark Brady, Roger Meiners, Andrew Melnyk, Stephen Eagle, Hannes Gissurarson, Edward J. Damich,  David Schmidtz, Timothy Brennan, Mario Rizzo, and the members of the Austrian Economic Colloquia at New York University and George Mason University.” [↩]
51. see Mackaay, Ejan. “Economic Incentives in Markets for Information and Innovation.” In “Symposium: Intellectual Property,” Harvard Journal of Law & Public Policy 13, no. 3 (Summer 1990), at p. 869. [↩]
52. “The Intellectual-Property Denier,” in Defending the Undefendable II: Freedom in All Realms (UK and USA: Terra Libertas Publishing House, 2013; reprint edition Auburn, Ala.: Mises Institute, 2018). [↩]
53. See Gary North on the 3D Printing Threat to Patent Law. [↩]
54. See KOL364 | Soho Forum Debate vs. Richard Epstein: Patent and Copyright Law Should Be Abolished.   [↩]
55.  Brevets d’invention, droits de reproduction et propriété intellectuelle, Patents, Reproduction Rights and Intellectual Property  [↩]
56. “Economic Incentives in Markets for Information and Innovation“. See also Legal Hybrids: Beyond Property and Monopoly? and Law and Economics for Civil Law Systems, pp. 358 et seq. [↩]
57. David Friedman on Intellectual Property; also KOL377 | No Way Jose Ep. 140: David Friedman Debate Prep: Deontology vs. Consequentialism, Utilitarianism, Natural Rights, Argumentation Ethics, Intellectual Property; David Friedman on the “Problem” of Piracy; David Friedman on Copyright; David Friedman: Current Experiments in Self Publishing. [↩]
58. Replies to Neil Schulman and Neil Smith re IP; Kinsella v. Schulman on Logorights and IP; Schulman: Kinsella is “the foremost enemy of property rights” ; Query for Schulman on Patents and Logorights [↩] [↩]
59. Shughart’s Defense of IP; Independent Institute on The “Benefits” of Intellectual Property Protection [↩]
60. Kinsella, “Reply to Van Dun: Non-Aggression and Title Transfer,” in Legal Foundations of a Free Society. [↩]
61. See ch. 31 of The Adventures of Jonathan Gullible: A Free-Market Odyssey; and “Exercising the Mind: An open marketplace of ideas is the best mechanism for reaching the truth,” Honolulu Star-Bulletin, November 3, 2002. See IP as Contract. Unlike Burris: “Alan Burris has a section in A Liberty Primer proposing free market protection of ideas.” See Alan Burris, A Liberty Primer. His theory is confused, as noted in this ChatGPT discussion.  [↩]
62. He’s pro-defamation law and I was told he is also pro-IP; see facebook and twitter; also Kinsella, ““Libertarian” Lightweight and “Minarchist” (read: mini-statist) Jacob Hornberger on Defamation and Alex Jones,” Freedom and Law (substack) (Oct. 22, 2022; https://perma.cc/QEX8-4PH8). [↩]
63. See links in Cato on Drug Reimportation; Cato Tugs Stray Back Onto the Reservation; and Other Posts. [↩]
64. see Cordato and Kirzner on Intellectual Property  [↩]
65.  Boldrin & Levine, Against Intellectual Monopoly; Boldrin and Levine: The Case Against Patents; The Economics of Musical Copyright; Boldrin & Levine on Covid-19, Vaccines, the Pharmaceutical Industry, and Patents. [↩]
66. see Palmer on Patents; Cato on Drug Reimportation; Cato Tugs Stray Back Onto the Reservation; and Other Posts; Intellectual Property and Think Tank Corruption. [↩]
67. Ridley, The Rational Optimist, ch. 8: “there is little evidence that patents are really what drive inventors to invent. Most innovations are never patented. In the second half of the nineteenth century neither Holland nor Switzerland had a patent system, yet both countries flourished and attracted inventors. And the list of significant twentieth century inventions that were never patented is a long one. It includes automatic transmission, Bakelite, ballpoint pens, cellophane, cyclotrons, gyrocompasses, jet engines, magnetic recording, power steering, safety razors and zippers. By contrast, the Wright brothers effectively grounded the nascent aircraft industry in the United States by enthusiastically defending their 1906 patent on powered flying machines. In 1920, there was a logjam in the manufacture of radios caused by the blocking patents held by four firms (RCA, GE, AT&T and Westing house), which prevented each firm making the best possible radios. …“In the 1990s the US Patent Office flirted with the idea of allowing the patenting of gene fragments, segments of sequenced genes that could be used to find faulty or normal genes. Had this happened, the human genome sequence would have become an impossible landscape in which to innovate.” See also How Innovation Works: And Why It Flourishes in Freedom, ch. 11, section “When the law stifles innovation: the case of intellectual property”: “there is no evidence that there is less innovation in areas unprotected by patents. … none of the following technologies were patented in any effective way: automatic transmission, power steering, ballpoint pens, cellophane, gyrocompasses, jet engines, magnetic recording, safety razors and zippers. … All in all, the evidence that patents and copyrights are necessary for innovation, let alone good for it, is weak. There is simply no sign of a ‘market failure’ in innovation waiting to be rectified by intellectual property, while there is ample evidence that patents and copyrights are actively hindering innovation. As Lindsey and Teles put it, the holders of intellectual property are ‘a significant drag on innovation and growth, the very opposite of IP law’s stated purpose’.”  [↩]
68. He told me this Sun. April 6, 2025, on bus from APEE dinner in Guatemala City that he agrees 100% with my anti-IP views. [↩]
69. See discussion in my post “Aggression” versus “Harm” in Libertarianism; also J.C. Lester: “Against Against Intellectual Property: A Short Refutation of Meme Communism”  [↩]
70. Independent Institute on The “Benefits” of Intellectual Property Protection. [↩]
71. Jeffrey A. Tucker on Intellectual Property [↩]
72. Adam D. Moore, “Toward a Lockean Theory of Intellectual Property,” in Adam D. Moore, ed., Intellectual Property: Moral Legal and International Dilemmas (New York: Rowman & Littlefield, 1997); “Intellectual Property and the Prisoner’s Dilemma: A Game Theory Justification of Copyrights, Patents, and Trade Secrets,” Fordham Intellectual Property, Media & Entertainment L.J.  28, no. 4 (2018): 1–38);  “Five Arguments for Intellectual Property,” delivered at APEE 2025; see KOL458 | Patent and Copyright versus Innovation, Competition, and Property Rights (APEE 2025). Based on his APEE 2025 talk, there is little doubt that his forthcoming  Intellectual Property: Moral and Legal Foundations (2025?) will double down on his pro-IP arguments. However, he seems to be fair in describing alternative IP views; see Stanford Encyclopedia of Philosophy on Intellectual Property Theories; Hettinger v. Paine: Justifying Intellectual Property Rights. [↩]
73. Tabarrok: Patent Policy on the Back of a Napkin; Tabarrok: Defending Independent Invention; Tabarrok’s Launching the Innovation Renaissance: Statism, not renaissance; Tabarrok on Ideas and Prosperity  [↩]
74. Lacalle on China and IP “Theft.” [↩]
75. See When Rights Collide: Principles to Guide the Intellectual Property Debate; also Reply to Adam Thierer on Net Neutrality and IP and Cato, Lessig, and Intellectual Property and Independent Institute on The “Benefits” of Intellectual Property Protection. [↩]
76.  Preface for the Italian edition of Kinsella’s Against Intellectual Property.  [↩]
77. Tom W. Bell, “Copyright, Philosophically,” in Intellectual Privilege: Copyright, Common Law, and the Common Good (Arlington, Virginia: Mercatus Center, 2014). [↩]
78. AFAIK. See KOL127 | FreeDomainRadio with Stefan Molyneux: SOPA, Piracy, Censorship and the End of the Internet? (2011). [↩]
79. see Huemer vs. Epstein on Intellectual Property  [↩]
80. I’ve heard he has read my IP writing. He seems to be skeptical; see this tweet and Yumber Vera Rojas, “A decree by Javier Milei attacks copyright,” Página|12 (June 29, 2025) (“The regulations mean that hotels and party halls do not pay Sadaic … Musicians, managers, and directors of Sadaic oppose the measure, which could be brought to court in the coming days.”); “Milei government deregulates collection of author’s royalties“: “President Javier Milei government orders deregulation of the collection of authorship royalties in Argentina, whose processing was previously obliged to pass through a society for artists but can now be transmitted without intermediation.” [↩]
81. tweet: “I agree” (see Dorsey); Planet Money: The Case Against Patents. [↩]
82. “Massie Introduces Patent Reform Legislation Restoring “First to Invent” Protection to Inventors” (April 29, 2024); Intellectual Property Discussion with Mark Skousen. [↩]
83.  KOL379 | Tom Woods Show Ep. 2145 – Does Intellectual Property Exist?; KOL147 | Tom Woods Show: Patents and Liberty; personal experience. [↩]
84. Masnick on the Horrible PROTECT IP Act: The Coming IPolice State;  [↩]
85. Postmarket Effects of Intellectual Monopoly  (where Per said he “came out of the [IP] closet.”); Mises on IP (Bylund); Intellectual Property: Innovation Should Serve Consumers, Not Producers; Recent IP Cartel Advances. [↩]
86. Jerry Brito, ed., Copyright Unbalanced: From Incentive to Excess (Arlington, Va.: Mercatus Center, 2013). [↩]
87. Isaac Morehouse, “How I Changed My Mind on Intellectual Property,” FEE.org (Sept. 27, 2016), also in Keith Knight, ed., The Voluntaryist Handbook: A Collection of Essays, Excerpts, and Quotes (2022). [↩]
88. tweet: “delete all IP law”; Twitter Heroically Promises Not to Use Patents Offensively  [↩]
89. Timothy Sandefur, “A Critique of Ayn Rand’s Theory of Intellectual Property Rights,” J. Ayn Rand Stud. 9, no. 1 (Fall 2007; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1117269): 139–61.  [↩]
90.  Tabarrok and Murphy: Why Are US Drug Prices So High?; KOL268 | Bob Murphy Show: Law Without the State, and the Illegitimacy of IP; Murphy, Is “Identity Theft” Really Theft?; Grok analysis; Murphy, (Minor) Criticisms of Kinsella. [↩]
91.  “The Fight against Intellectual Property” [↩]
92. Vin Armani, “The Ownable and the Unownable,” in Self Ownership: The Foundation of Property and Morality (2017) [↩]
93. From twitter: “I discuss it in Principles of Economics [pirated copy] [see p. 128, “Property in Ideas”] and reverentially cite the great Kinsella! It’s also the pivot point from the real world to the imaginary history in my next book, a work of fiction in which the world goes on a gold standard in the 20th century, thanks to the Wright brothers dropping their IP lawsuit against other aviation pioneers!” See also Kinsella, Guest Lecture, “Open Crypto Alliance” topic, for seminar and podcast, conducted by Dr. Saifedean Ammous, author of The Bitcoin Standard, for The Bitcoin Standard Academy (Jan. 21, 2021); KOL314 | Patents vs. Bitcoin: The Bitcoin Standard Podcast; KOL441 | The Bitcoin Standard Podcast with Saifedean Ammous: Legal Foundations of a Free Society, Property Rights, Intellectual Property. See also his tweet here, condemning IP law.  [↩]
94. Here is Amash upset with Trump for trying to prevent the federal government from paying prescription drug prices inflated by patents. See Trump’s “Worst Idea”: Undercutting Patent-Inflated Monopoly Pharmaceutical Patents.  [↩]
95. Adam Kokesh, “Intellectual Property,” in Freedom! (2014; https://archive.org/details/FREEDOMEbook), §VI. [↩]
96.  KOL241 | Dave Smith’s Part of the Problem Show: Libertarian Property Theory; personal experience. [↩]
97. Jack Lloyd, “Property Rights,” in The Definitive Guide to Libertarian Voluntaryism (2022. [↩]
98. Chase Rachels, “Property,” in A Spontaneous Order: The Capitalist Case For A Stateless Society (2015), section “Intellectual Property.” [↩]
99. KOL 038 | Debate with Robert Wenzel on Intellectual Property  [↩]
100.  KOL076 | IP Debate with Chris LeRoux ; Can you own ideas? Chris LeRoux debates Daniel Rothschild. [↩]
101.  “Locke’s Big Mistake: How the Labor Theory of Property Ruined Economics and Political Theory,” Liberty in the Pines Conference (March 2013); and this tweet thread; but see his article An elegant argument against patents. [↩]
102. Silas Barta: The shortest, safest libertarian case [sic] for IP. Re his nyms, 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) feconlog.econlib.org (none, banned) economiclogic.blogspot.com (johnsharp9)”  [↩]

Now that the song is copyright-free.

The August 8–14 2015 issue of The Economist has a great couple of pieces basically calling for abolition—or at least radical reform—of the patent system. The first is the leader, “Time to fix patents“; the second is the longer piece, “A question of utility.” The leader notes that “in 19th-century Britain,” The Economist sided with free-traders in calling for the complete abolition of the patent system. As the longer article explains:

THE Great Exhibition, staged in London in 1851, was intended to show off the inventive genius of Victorian Britain. In doing so it sparked a hardfought debate on intellectual property. On one side were public figures horrified at the thought of inviting the whole world to see the nation’s best ideas, only to have most of it go straight home and copy them. They called for the patent system to be made cheaper and easier to navigate, and for the rights it conferred to be more forcefully upheld. These demands, though, were met with a backlash. Supported by economic liberals who had successfully fought for the repeal of the protectionist Corn Laws a few years earlier, this side of the debate argued that free trade and competition were good for the economy; that patents were a restraint on both; and that therefore patents should be not reformed, but done away with.

The Economist, founded by opponents of the Corn Laws, was an enthusiastic promoter of this abolitionist movement. A leader in our July 26th issue that year thundered that the granting of patents “excites fraud, stimulates men to run after schemes that may enable them to levy a tax on the public, begets disputes and quarrels betwixt inventors, provokes endless lawsuits [and] bestows rewards on the wrong persons.” In perhaps our first reference to what are now called “patent trolls”, we fretted that “Comprehensive patents are taken out by some parties, for the purpose of stopping inventions, or appropriating the fruits of the inventions of others.”

Arguing that patents “rarely give security to really good inventions” and fail at their job of encouraging innovation by rewarding inventors for their efforts, we backed the abolitionists in a debate over patent reforms then in Parliament. Our knockout argument: most of the wonders of the modern age, from mule-spinning to railways, steamships to gas lamps, seemed to have emerged without the help of patents. If the Industrial Revolution didn’t need them, why have them at all?

Today’s Economist cannot quite, clearly, explicitly, unambiguously call for abolition, despite framing some of the arguments for it, and even though its arguments for mere partial reform are confused and fall flat. Anyone reading these pieces will at first be nodding, “Yes, yes, I see—maybe they are right—time to do away with these government monstrosities”, only to be confronted near the end with a confusing and unpersuasive series of blacksliding arguments to the effect that “despite all these problems with patents, of course we need them in a few areas  these two pieces indicate growing hostility to the idea of intellectual property and growing recognition that patents and IP are incompatible with the free market and property rights.

The “Austrian Economics Center,” which claims to advocate “the ideas of the Austrian School of Economics” and to promote “a free, responsible and prosperous society,” “has joined the Property Rights Alliance (PRA) in an open letter to WIPO Director Dr. Francis Gurry in support of strong protections for all types of IP”.

A letter from Barbara Kolm, the Center’s Director, announcing this, stated:

As we consider free markets and economic growth in Europe we must reflect on the importance of Intellectual Property (IP) rights. We strongly feel IP is key to fostering global innovation, creativity and competitiveness, particularly in today’s knowledge-based economy.

Risk is the lifeblood of creative and innovative economies. IP rights encourage entrepreneurs and creators to push for new advances and contemplate new creations in the face of adversity. Intellectual property is the engine of economic growth and competitiveness, and helps generate breakthrough solutions to global challenges.

In both the United States and European Union, IP-intensive industries support tens of millions of jobs and contribute trillions of dollars to annual GDP. For example, in the EU alone, IP-intensive jobs contribute to 26% of employment and 39% of GDP. Numerous studies have found that countries with strong IP protection programs have up to 13 times higher GDP than those that do not.

That is why we joined 85 think tanks and institutions globally in signing a letter to global leaders that articulates a framework and guidelines regarding intellectual property. As these issues are discussed in various forums around the world, these guidelines will be a helpful resource.

Advanced societies have long understood that by protecting the proprietary rights of artists, authors, entrepreneurs, innovators, and inventors, they are promoting greater public welfare. The continued protection of these fundamental rights is essential to global innovation, creativity and competitiveness.

The comment that “IP-intensive industries support tens of millions of jobs and contribute trillions of dollars to annual GDP” appears to be lifted from a ridiculous “study” by the Commerce Department that is transparently false and flawed—see USPTO/Commerce Dept. Distortions: “IP Contributes $5 Trillion and 40 Million Jobs to Economy”. As for her comment, “Numerous studies have found that countries with strong IP protection programs have up to 13 times higher GDP than those that do not.”—this makes the obvious error of confusing correlation with causation. (See Intellectual Property as a cause of American Prosperity?)

Also signing the letter are other supposed libertarian, free market, liberal, or Austrian groups, such as the F.A. v. Hayek Institute, Austria; Hayek Institute Romania; Ayn Rand Institute Europe (unsurprisingly); Libertarian Club Libek, Serbia; Liberty Forum of Greece; Italian Students for Individual Liberty; The Liberty Institute, India; Digital Liberty, USA; and many others.

To their credit, none of the Mises Institutes that are part of the Mises Global network, nor the Cato Institute, nor the Cobden Centre, signed this letter. Indeed, American groups seem under-represented on this list, perhaps because this letter concerns IP in Europe, and also perhaps because of the growing awareness over here among free market libertarians that IP is monstrous and utterly incompatible with liberal principles.

[Update: See Hoppe on Barbara Kolm and her IP views: https://twitter.com/ograu90/status/1725231525849952478 ]

But it is especially distressing that the soi-disant Austrian groups (the Austrian Economics Center and the two aforementioned Hayek Institutes) are coming out explicitly in favor of IP, despite the fact that many prominent Austrians, such as Bohm-Bahwerk, Mises, Hayek, Rothbard, Kirzner, and Hoppe have expressed extreme skepticism or outright hostility to IP (or to the empirical/utilitarian approach implicitly being advanced here), plus a number of fellow travelers such as Plant, Machlup and Leonard Read. For example, see:

• Böhm-Bawerk on Patent and Copyright
• Fritz Machlup, U.S. Senate Subcommittee On Patents, Trademarks & Copyrights, An Economic Review of the Patent System, 85th Cong., 2nd Session, 1958, Study No. 15 (text excerpt) [“Report to the US congress from 1958, which also extensively narrates the history of the patent movement and of earlier economic research on this subject. Machlup, a renowned American economist of Austrian origin, is the first author of a large treatise on knowledge economics and other treatises which belong to the teaching repertoire of economics departments in universities. His report cites a wealth of historical and economic evidence to refute most of the reasoning used by lawyers to legitimate the patent system.”]; also Fritz Machlup & Edith Penrose, “The Patent Controversy in the Nineteenth Century,” Journal of Economic History 10 (1950), p. 1
• Ludwig von Mises, Human Action 3rd rev. ed. Chicago: Henry Regnery (1966), chap. 23, section 6, pp. 661–62; see also pp. 128, 364; also Kinsella, “Mises on Intellectual Property“
• Hayek: see 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
• Arnold Plant, “The Economic Theory Concerning Patents for Inventions,”Economica, New Series, 1, no. 1 (Feb., 1934)
• Murray N. Rothbard, Knowledge, True and False; Man, Economy, and State and Power and Market, Scholars Edition, pp. liv, 745-54, 1133-38, 1181-86
• Cordato and Kirzner on Intellectual Property
• Leonard Read, “On Plagiarism” (1972), reprinted in Kinsella, “Leonard Read on Copyright and the Role of Ideas“
• Hoppe on Intellectual Property; Hoppe Interview on Anarchy and Intellectual Property

Intellectual Property is completely contrary to private property rights, free markets, competition, and liberal principles. All Austrian and free market/libertarian groups should strongly oppose IP, not promote it. If these institutions choose to be wertfrei that is fine, but then they should take no policy positions. Once they enter the field of making policy pronouncements they open themselves up to criticism in this arena. (On a slight tangent: as I concluded in New Rationalist Directions in Libertarian Rights Theory:

Under the three theories outlined above—argumentation ethics, estoppel theory, and the self-contradictions of rights-skeptics—we can see that the relevant participant in discourse cannot deny the validity of individual rights. These rationalist-oriented theories offer, in my opinion, very good defenses of individual rights, defenses that are more powerful, in a sense, than many other approaches, because they show that the opponent of individual rights, whether criminal, skeptic, or socialist, presupposes that they are true. Critics must enter the cathedral of libertarianism even to deny that it exists. This makes criticism of libertarian beliefs hollow: for if someone asks why we believe in individual rights, we can tell them to look in the mirror, and find the answer there.