So some Randian, Gary “McGath,” who had published a weak semi-anti-IP article previously, “Patenting Software Threatens Innovation” (his utterly confused and totally useless article pontificates, “Software patents aren’t a necessity. Without patents, code can still be under copyright, protecting its authors from copying without compensation.” Brilliant, Gary, brilliant)—well, he submitted a pro-copyright article to FEE recently, his article “Is Copyright a Right?” As with all pro-IP arguments, it is confused and incoherent.¹  As he wrote in his email begging FEE to  publish him, “This article’s thesis is that copyright is a legitimate form of property, based on the same principles as the right to tangible creations. The libertarian case for copyright hasn’t had enough representation lately, and I’m hoping FEE will help to balance the debate by publishing this article.”

Obviously this guy is just another confused Randian who wants to find some way to justify some type of IP protection for his pet interest, software, sort of how Rand searched for a way to find animal rights because she loved her pet cat, Fluffball, or whatever she “Objectively” called it. (But at least, in the end, she had the grace to admit she couldn’t justify animal rights—yet, like most libertarian novelists, she twisted her theories to defend copyright. Because, you know, that’s how you live, man! You got to have protection from competition from the state, man!”)

This amateur, pro-IP, statist submission was rejected by FEE (no surprise, as the founder of FEE, Leonard Read, was naturally against IP) but, I figure, hey, I’ll have a conversation, a discussion, with anyone. So I email him to offer this. I say:

“Tucker told me you wanted to publish an article defending copyright (surprising to me since I believe you opposed software patents in the past). Would you like to have a discussion about it via Skype or phone—not a debate, just a discussion. If it’s not a trainwreck I could post it on my podcast. If you are not aware, I’m a leading libertarian legal theorist and the world’s leading IP policy theorist, and a practicing patent lawyer (also opposed strongly to all forms of IP). Also a semi-/former Randian.

Lemme know.”

His reply:

Stephan,

If you’re talking about offering some money (writing is what I do for a living), sure, I’d be interested in talking about it. My cell number is __. I’ll be around this afternoon from 1 to 6 PM Eastern time.

My views on software patents and on copyrights are two very different things; I believe that copyright is the appropriate level of legal protection for software. My view on copyright is that it stems from the same principles as property rights in tangible objects, coming from a more or less Randian position.

So it’s amazing to me. This is how these Randroid morons think. If you don’t “pay me” I won’t “produce” “values.” They are so… predictable. When I am offering to give him free services valued in the hundreds per hour, plus free publicity. Typical Randroid. You just can’t make this shit up. They really think this way. Unbelievable.

My reply:

“Stephan,

If you’re talking about offering some money (writing is what I do for a living), sure, I’d be interested in talking about it.”

Oh, not at all. I was offering to give you maybe an hour of my time, which is valued at $600 by the market, to help tutor you and educate you, and also give you a bit of free PR, since I’m well known and have a popular podcast. I would never pay you–if anything you could pay me, but I would waive the fee, as a pro bono type gesture, as part of my libertarian activism.

“My cell number is __. I’ll be around this afternoon from 1 to 6 PM Eastern time.

“My views on software patents and on copyrights are two very different things; I believe that copyright is the appropriate level of legal protection for software. My view on copyright is that it stems from the same principles as property rights in tangible objects, coming from a more or less Randian position.”

Yes, I gather you are a Randian. Her views on IP are utterly confused and flawed—her worst mistake, worse even than her mistake on anarchy. I thought you might want to have a conversation about it, but apparently you think you need to be paid for this, so again, let’s forget it. It’s just that I’m always willing to take time pro bono to try to expose errors people have in thinking about IP—either for the benefit of the person I am talking to, or for the audience.

You do realize, by the way that FEE doesn’t pay for articles, so you were willing to have them publish your piece for free (if they would have accepted it, which they didn’t—maybe some indication of the value of strained defenses of the fascist idea of copyright in the name of “liberty”).

His reply:

Please do not call me.

Um. As if I had offered (“threatened”?) to “call him”. I offered him my tutoring.

Sorry, Gary, you sad sack. My reply to this … upstanding citizen: “Ditto.” Hey, your loss, Randroid. Your loss.

1. See“There are No Good Arguments for Intellectual Property.”   [↩]

Update: see also discussion on Facebook.

Intellectual Property Is Theft

FEE.org

Thursday, June 30, 2016

Dan Sanchez

Property must be distinguished from monopoly. They are often conflated because they both involve exclusive rights. But they are importantly different. Property is an exclusive right to use a particular means. Monopoly is the exclusive right to use any means in a certain way.

Property is the exclusive right to use this boat, this paper, this trap, these speakers, this computer, this plastic, or this aluminum.

Monopoly is the exclusive right to use any boat to trade with India, to use any paper to make playing cards in 17th century England, to use any trap to catch beavers in North America, to use any speakers to play “Happy Birthday,” to use any computer to deliver a podcast or download “Happy Birthday,” to use any plastic and aluminum to build a certain kind of washing machine.

Since it is an exclusive right to use any means in a certain way, intellectual “property” is not property at all, but monopoly. Intellectual “property” is therefore a misnomer, euphemistically used by state-privileged monopolists to drape their monopolies in the mantle of property.

The Innovation Argument

But doesn’t IP stimulate innovation by rewarding it? One hint that something is fundamentally wrong with the “rewarding innovation” argument for IP is that it could be used by any other monopolist. The prospect of a royal monopoly in trade with India may be said to stimulate a merchant company to open up trade with that country. Why do some economists favor IP monopolies, yet oppose mercantilist monopolies? Why stop with artistic, literary, and engineering innovators and their intellectual innovations?

Indeed, why, in the modern era, do we not offer monopolies in business models and strategies to innovators? Why shouldn’t monopolies have been granted for just-in-time manufacturing or big box retailing? Sure, it would have impeded emulation, obstructed widespread adoption of these efficacious innovations, and kept them from benefiting consumers as much as possible. But, as monopolists might argue using the same line of reasoning as IP defenders, they might have been developed a little sooner if people thought that by developing such innovations, they could get a legal lock on them, and enjoy a long stream of monopoly profits.

Also, keep in mind that the “rewarding innovation” argument has been used by the biggest monopolist of them all, which itself begets all other monopolies: the State. It is often along this line of reasoning: “I was the first to clear this land of bandits and this sea of pirates. I am the first to fully provide defense with force to this land, and therefore I should henceforth have a monopoly of force.” Read, for example, Plutarch. Didn’t Theseus, by clearing the roads of highwaymen and monsters, demonstrate why he and his heirs deserve to rule Athens?

It is true that any prospective monopoly, including IP, might stimulate or accelerate the development of a certain innovation. But for every innovation a monopoly artificially boosts, it precludes, deters, and delays several more innovations: including (1) further innovations that the monopolist would have developed if he hadn’t been able to rest on his laurels, passively collecting his royalties or patent fees; (2) innovations that other creative people would have developed if they had been free to adopt and build off of the monopolized innovation; (3) any innovations that might have built off of innovations in categories (1) and (2); (4) any innovations that might have built off of innovations in categories (1), (2), and (3); and so on. Any institution that eliminates several good things for every one good thing it induces is a bad institution.

True Property Vs. Intellectual Monopoly

Property and monopoly (including IP) are not only distinct; they are antithetical to each other. To the extent that a proprietor has the exclusive right to use his particular means any way he chooses, a would-be monopolist cannot claim ownership of such “ways” and therefore cannot have the power to veto such uses. And to the extent a monopolist has “ownership” over ways of using any means whatsoever, a would-be proprietor can never truly own a particular means. The proprietor must ever be at odds with the monopolist.

The virtue of property is that it facilitates economization (the allocation of means to competing ends, when the quantity of the means is not sufficient to pursue all potential ends) by assigning in an ideal way exclusive control over those things which must be economized. As demonstrated earlier, monopoly (which includes IP) is antithetical to property. Therefore, monopoly necessarily hinders economization. This clear fault is not offset by monopoly’s alleged stimulus to innovation, because, as demonstrated above, monopoly (which includes IP) necessarily precludes, deters, and delays far more innovations than it boosts. Therefore, IP (and any other form of monopoly) is a wholly vicious institution and should be totally abolished.

Hobbling Entrepreneurs

How does IP’s hindrance of economization manifest in a market economy? The characteristic workings of a free market economy are determined by the institution that defines it: private property. Violations of that root institution will manifest in the characteristics of the hampered market economy that results.

According to sound economic theory, private property results in market exchange, which results in market prices, which result in market profits and losses, which guide and select entrepreneurs in such a way that production is ever-adjusted toward ever-better economization of resources in light of consumer preferences. An essential part of this process is as follows.

Anywhere this side of the Garden of Eden, there are imperfections in the way resources (means) are being economized in light of humanity’s ultimate (that is, “consumptive”) needs and desires. An innovating entrepreneur, using his superior judgment, changes the use of his own resources in a way that mitigates one of these imperfections. He jumps into a breach in consumer satisfaction, and begins to fill it.

Through his consumer-pleasing innovation (adopting a better way of using his means in production), this successful entrepreneur earn profits. These profits signal other entrepreneurs to emulate the innovator. In following the innovator into the breach, they bring along with them their own resources, which are then used to contribute to the filling of it. So much the better for humanity’s ultimate needs and desires.

The emulating entrepreneurs and their resources constitute competition both for each other and for the innovator. This competition impels the entrepreneurs to strive to outdo each other in more efficiently filling the breach, whittling down profits, and resulting in an even better economization of resources (manifested in lower real consumer prices), which frees up resources to be dedicated to filling other breaches instead.

Eventually the breach is filled as profits drop toward zero. The entrepreneurs then look to the next breach in consumer satisfaction, in their career-long quest to improve their own condition by way of making the world a better place (that is, by serving the ultimate needs and desires of humanity). “Profit earned, and problem solved. Onto the next profit/problem.”

Thus we see that emulative competition is, to use the language of computer programming, an essential feature of the market, and not a bug to be stomped on by the boot of IP or any other form of monopoly. The more freedom entrepreneurs have to emulate and the less artificial protection is given to first-mover profits, the faster will resources be wheeled in to fill the breach in consumer satisfaction, and the faster will competition induce gains in efficiency. Both results mean a better-satisfied consumer and a more prosperous populace.

Profits are supposed to be ephemeral. Profits are indeed a sign that a hole in human happiness is being filled, but they are also a sign that the hole is not yet filled to the top. The faster the sign disappears, the better.

IP and other forms of monopoly are a stick in the spokes of the would-be emulators who want nothing more than the chance to improve their lot by wheeling in their resources to participate in the filling of a breach in consumer satisfaction. It provides first-movers (or first-filers at the patent office) a sheltered, artificially prolonged stream of propped-up profits at the expense of everyone else, competitor and consumer alike. The breach in consumer satisfaction is then only leisurely filled by the sheltered monopolist at the pace of a government road construction worker, and other entrepreneurs are forced to go find an inferior, second-best way of serving consumers.

With respect to the market, granting an innovator in literature, art, or engineering “ownership” over his innovation (the way he used his resources: his paper, ink, computer, paint, plastic, aluminum, etc) is functionally no different from granting such a claim to any other innovator. It is a monopoly privilege, and as demonstrated above, monopoly privileges, even when held by innovators, only hamper the workings of the market and harm human welfare.

Now, does all this matter very much? Would society be tremendously more prosperous if IP were abolished? As established above, IP is economically harmful. It is an empirical fact that IP deeply pervades the market, covering every order of production, from home entertainment, to household appliances, to the software and hardware that underlie the digital sector, to medicine, to food, to heavy manufacturing, and even to the essential spread of sound ideologies through web sites and other media. An institution that is both harmful and deeply pervasive is deeply and pervasively harmful. Undoing a deep, pervasive economic harm is the same thing as providing a great, pervasive economic benefit. Therefore, yes, society would be tremendously more prosperous if IP were abolished.

Comments:

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• 61 Comments

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…]

Related:

• Did Obama Violate Copyright Law Watching the Super Bowl?
• Techdirt, Reminder: Don’t Believe The NFL’s Lies About Its Super Bowl Trademarks

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.” (Cato Podcast • May 6, 2016 Trademarks and Derby-Pie®)

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), idem, The Constitutional Protection of Intellectual Property (March 8, 2021), 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 ]

• On Patents, Hoover Sucks
• On the Electronic Frontier Foundation, see Mark Cuban Funds EFF’s New ‘Mark Cuban Chair To Eliminate Stupid Patents’;
• EFF does not oppose patents: see Adi Kamdar, Daniel Nazer, Vera Ranieri, Defend Innovation: How to Fix Our Broken Patent System, Electronic Frontier Foundation (Feb. 2015) (“The patent system is in crisis. Patents—particularly software patents—have become a tool for intimidation and expensive litigation, chilling the very innovation the patent system was supposed to encourage. … Since the mid-1990s, software patents in particular have proven to hinder rather than support innovation. … despite recent Supreme Court decisions that have dialed back some of the excesses of the patent system, patent quality remains low. … PART 1 – THE PROBLEM A. The root of the problem: Too many bad patents. … The U.S. patent system has one primary purpose, embodied in the Constitution itself: to encourage innovation.3 The basic bargain is simple: in exchange for disclosing their inventions (so that others may build upon them), inventors get a “limited private monopoly” on those inventions.4… the current patent system isn’t doing a very good job of fulfilling its purpose. The United States Patent Office is issuing far too many weak and overbroad patents, particularly on software. And many of the courts that end up reviewing those patents seem unwilling to second-guess the Patent Office. Instead of promoting innovation, these patents become landmines for companies that bring new products to market. … 2. The Patent Office isn’t helping When the Patent Office reviews a patent application, one of its tasks is to search for prior art (publications and uses from before the filing date of an application) that might show the claimed invention is not new or is obvious in light of what came before. This is a difficult task. … If the Patent Office misses key prior art, it will issue patents on existing or obvious ideas. Unfortunately, the Patent Office doesn’t do a good job looking for prior art when it reviews applications for software patents.”) See Patent Trolls, Bad Patents, and Incompetent Examiners are Not the Problem
• Tabarrok, Cowen, and Douglass North on Patents: “Richard Stallman argues that “patent law should be abolished.”44 The Electronic Frontier Foundation’s view is that the “patent system is broken” and “it’s time to start over.”45”

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. 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)
   2. Grok summary of Kinsella on IP
2. “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
3. “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward” (2023). An update of AIP
4. 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
5. “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”
6. “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. KOL483 | The Economics and Ethics of Intellectual Property, Loyola University—New Orleans (a very good recent overview)
2. KOL253 | Berkeley Law Federalist Society: A Libertarian’s Case Against Intellectual Property
3. KOL 037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory
4. KOL364 | Soho Forum Debate vs. Richard Epstein: Patent and Copyright Law Should Be Abolished
5. KOL388 | Cantus Firmus with Cody Cook: Against Intellectual Property
6. “Intellectual Property and Economic Development,” Mises University 2011 (July 27, 2011) [Speech + Transcript]
7. “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:

• KOL471 | “What Is Property? And What Is Not? — Part 1,” Capitalism & Morality (Vancouver)
• KOL472 | “What Is Property? And What Is Not? — Part 2 — Fireside Chat on Intellectual Property with Albert Lu,” Capitalism & Morality (Vancouver)
• KOL217 | Intellectual Property is the Bastard Child of the Gatekeepers
• 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?

Like · Reply · 1 · 15 hrs

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.

Like · Reply · 10 mins · Edited

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 [NOTE: IGNORE THIS COLOR SCHEME FOR NOW; it is inaccurate]. 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
• Immanuel Kant (1724–1804) bad⁸
• Thomas Paine (1737–1809): pro-copyright⁹
• Jeremy Bentham (1748–1832): weak¹⁰
• James Madison (1751–1836): bad¹¹
• Jean-Baptiste Say (1767–1832) bad¹²
• Charles Comte (1782–1837): good¹³
• Charles Dunoyer (1782–1862): good¹³
• 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.¹⁴ 
• William Leggett (1801–39): very good, for his time, on both patent and copyright¹⁵
• Charles Coquelin (1802-52): bad¹³
• John Stuart Mill (1806-1873): bad¹⁶

• Michel Chevalier (1806–1879): good¹⁷
• Lysander Spooner (1808–87): horrible on IP, just about the worst, next to Galambos, Rand, and Schulman¹⁸
• Pierre-Joseph Proudhon (1809–65): possibly bad on IP (claim disputed)¹⁹
• JK Ingalls (1816–98): Seems to be almost identical to Tucker: good on IP, but for confused reasons, including hostility to the “land monopoly”²⁰
• Gustave de Molinari (1819–1912): bad on patent and copyright²¹
• Herbert Spencer (1820–1903): horrifically bad on IP²²
• Leo Tolstoy (1828–1910) good on copyright
• Auberon Herbert (1838–1906): unknown²³
• Henry George (1839–97): bad on copyright²⁴
• James Walker (Tak Kak) (1845–1904): excellent on both patent and copyright, like Tucker²⁵
• Eugen Böhm-Bawerk (1851–1914): expresses skepticism about both patent and copyright²⁶
• Benjamin Tucker (1854–1939): great on IP, but perhaps not completely for the right reasons²⁷
• Albert Jay Nock (1870–1945): possibly skeptical of patents²⁸
• 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-copyright²⁹
• Frank Knight (1885–1972): skeptical of patents, but perhaps in favor of state funding of R&D³⁰
• Henry Hazlitt (1894–1993): weak³¹
• Arnold Plant (1898–1978): skeptical of empirical case for patents³²
• Lionel Robbins (1898–1984): skeptical of empirical case for patents³³
• Leonard Read (1898–1983): appeared to be skeptical of ownership of ideas in general, i.e. anti-IP³⁴
• F.A. von Hayek (1899–1992): seemed to be leaning against IP, though not entirely clearly. See Hayek on Intellectual Property.
• Henry Simons (1899–1946): trying to figure out. Matt Zwolinski has a piece coming out about his opposition to monopolies… Grok says he was opposed to patents. Not so sure: Economic Policy For A Free Society, p. 101: “Our whole corporation law, like our patent law, needs complete overhauling.” p. 102: “We might face and solve the problem of corporate size; we could repair the damage of bad patent laws, implementing monopoly arrangements utterly unrelated to the proper purpose of patents;… ” p. 130: “It is shameful to have permitted the growth of vast corporate empires, the collusive restraint of trade by trade associations, and the gross abuse of patent privilege for extortion, exclusion, and output restriction.” P. 248-249, 319: he seems skeptical but not opposed. Grok is confused, as is ChatGPT.
• 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): bad and confused on patent and IP by contract; silent on trademark; good on defamation. See Rothbard on Intellectual Property.
• 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
• Ron Paul (1935–): bad
• Jan Narveson (1936–): pro-IP⁴⁴
• Robert Nozick (1938–2002): bad
• Tibor Machan (1939–2016): confused and bad on IP⁴⁵
• Dominick T. Armentano (1940—present): probably weak⁴⁶
• 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–): good⁴⁸
• 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) (Hoppe on Intellectual Property)
• 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
• Victor Koman (1955–): good
• David K. Levine (1955–): see entry for Boldrin
• 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
• Stephen Hicks (1960–): probably pro-IP; not clear⁶⁵
• Peter Boettke (1960–):⁶⁶
• J.C. (Jan) Lester (unknown): confused and bad on IP⁶⁷
• Lawrence Lessig (1961–): weak/confused/unprincipled⁶⁸
• 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–): good⁶⁹
• Rand Paul (1963–): bad
• Roderick Long (1964–): good (early radical libertarian opponent of IP)
• Stephen Davies: good
• Adam D. Moore (1965–): bad⁷⁰
• N. Stephan Kinsella (1965–): need I say more
• Jeff Deist (1966–): good
• Alex Tabarrok (1966–): confused/bad-mixed⁷¹
• Daniel Lacalle (1967–): confused/bad⁷²
• Adam Thierer (?): weak, unprincipled⁷³
• Roberta A. Modugno (1965?): good⁷⁴
• Tom W. Bell (1965?—): fair; not abolitionist, but skeptical and favors significant rollbacks⁷⁵
• Stefan Molyneux (1966–): good⁷⁶
• Cory Doctorow: not abolitionist, but skeptical and favors significant rollbacks (I believe)
• GeneCallahan (3): good⁷⁷
• 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 unlibertarian⁷⁸
• Paul Cwik: bad/evolving⁷⁹
• Javier Milie: unclear (( 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.” On the other hand, see Milei, “libertarian” IP fascist?. ))
• Elon Musk (1971–): apparently pretty good⁸⁰
• Bryan Caplan (1971–): bad
• Thomas Massie (1971–): bad⁸¹
• Tom Woods (1972–): good⁸²
• Mike Masnick (1974—): fair; not abolitionist, but skeptical and favors significant rollbacks⁸³
• Per Bylund (1975–): good⁸⁴
• Jerry Brito (1976?–): skeptical of IP and favors reform, but not abolition⁸⁵
• Isaac Morehouse (1976?–): good⁸⁶
• Jack Dorsey (1976–): apparently good⁸⁷
• Timothy Sandefur (1976?—): good⁸⁸
• Robert P. Murphy (1976–): good ⁸⁹
• Jacob Huebert (1978?–): good⁹⁰
• Peter Leeson (1979–): not clear; touches on it briefly in this paper
• Vin Armani, now known as Ciprian (1978?—): good⁹¹
• Nathan Goodman (?): good (( Tweet; tweet; Breaking your legs and taking your crutches; Beware Panaceas: Promises and Pitfalls of Agorism, Illegalism, and Syndicalism; Deadly Contradictions: Patent Privilege vs. “Saving Lives”; The Trans-Pacific Partnership and Internet Freedom; ALEC is an Enemy of Liberty; Obama vs. Medical Access; Intellectual Property: Weapon of Censorship and Bigotry. ))
• Saifadean Ammous (1980–): good⁹²
• Justin Amash (1980–): weak/bad⁹³
• Adam Kokesh (1982–): good⁹⁴
• Dave Smith (1983–): good⁹⁵
• Jack V. Lloyd (1982?—): good⁹⁶
• Juan Ramón Rallo (1984—): good
• Chase Rachels (1989?—): good⁹⁷
• 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,⁹⁸ as well as other lesser/modern figures such as Chris LeRoux,⁹⁹ Shayne Wissler,¹⁰⁰ Silas Barta (aka John Sharp, “Person,” Richard Harding/Hard Dick).¹⁰¹

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]. See also “The legislature, were it possible that its deliberations could be always directed, not by the clamorous importunity of partial interests, but by an extensive view of the general good, ought, upon this very account, perhaps, to be particularly careful, neither to establish any new monopolies of this kind, nor to extend further those which are already established. Every such regulation introduces some degree of real disorder into the constitution of the state, which it will be difficult afterwards to cure without occasioning another disorder.”Wealth of Nations, quoted in The “Big Tech” Problem By Duncan Whitmore. [↩]
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. Kant on Intellectual Property. [↩]
9. See Tom Paine, Copyright Statist. [↩]
10. See p. 7 of Machlup & Penrose, “The Patent Controversy in the Nineteenth Century” (1950) [↩]
11. Madison Lied about Patent and Copyright [↩]
12. See Say, A Treatise on Political Economy: “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.” 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). [↩]
13. According to Louis Rouanet, “Michel Chevalier’s Forgotten Case Against the Patent System” (2015). [↩] [↩] [↩]
14. 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. [↩]
15.  William Leggett on Intellectual Property  [↩]
16. See Machlup & Penrose, “The Patent Controversy in the Nineteenth Century” [pdf] (1950), p. 7: “John Stuart 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]).” See also John Stuart Mill, Principles of Political Economy, ed. W. J. Ashley (London: Longmans, Green & Co., 1909), Bk. V, chap. x, pp. 932–933:
    

    The condemnation of monopolies ought not to extend to patents, by which the originator of an improved process is allowed to enjoy, for a limited period, the exclusive privilege of using his own improvement. This is not making the commodity dear for his benefit, but merely postponing a part of the increased cheapness which the public owe to the inventor, in order to compensate and reward him for the service. That he ought to be both compensated and rewarded for it, will not be denied, and also that if all were at once allowed to avail themselves of his ingenuity, without having shared the labours or the expenses which he had to incur in bringing his idea into a practical shape, either such expenses and labours would be undergone by nobody except very opulent and very public-spirited persons, or the state must put a value on the service rendered by an inventor, and make him a pecuniary grant. This has been done in some instances, and may be done without inconvenience in cases of very conspicuous public benefit; but in general an exclusive privilege, of temporary duration, is preferable; because it leaves nothing to any one’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. So decisive, indeed, are these considerations, that if the system of patents were abandoned for that of rewards by the state, the best shape which these could assume would be that of a small temporary tax, imposed for the inventor’s benefit, on all persons making use of the invention. To this, however, or to any other system which would vest in the state the power of deciding whether an inventor should derive any pecuniary advantage from the public benefit which he confers, the objections are evidently stronger and more fundamental than the strongest which can possibly be urged against patents.

    On the same page Mill later added, against the 1860s abolition campaign, the line Machlup quotes in note 32: attempts to “impugn the principle of patents altogether” would “enthrone free stealing under the prostituted name of free trade.” In the 1871 text that sentence follows immediately, after “It is generally admitted that the present Patent Laws need much improvement; but in this case, as well as in the closely analogous one of Copyright, it would be a gross immorality in the law to set everybody free to use a person’s work without his consent, and without giving him an equivalent.” [↩]

17. Louis Rouanet, “Michel Chevalier’s Forgotten Case Against the Patent System” (2015); Chevalier on Patents as Industrial Monopoly Privileges. [↩]
18. Tucker on Spooner’s One Flaw  [↩]
19.  Proudhon: For Intellectual Monopoly  [↩]
20. 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.” [↩]
21. Molinari (and Tucker, and Mutualists) on IP  [↩]
22. 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.” Alan Burris, A Liberty Primer, pp. 262, et seq., is similar confused, as also noted in this ChatGPT discussion. See e.g.: “Because we own our bodies, what we produce with the labor of our bodies is also our property. Ideas, which are the products of mental labor, are the property of the producers, just as the material products of physical labor belong to their producers.” Libertarian creationism, anyone? “just as owners of physical property have a right to a “monopoly” on its use and sale, so do owners of intellectual property.” Groan. See The Structural Unity of Real and Intellectual Property. “Once stolen, an idea may be copied many times to benefit the thief and to deny the creator the Just reward for his/her mental labor.” Copying, Patent Infringement, Copyright Infringement are not “Theft”, Stealing, Piracy, Plagiarism, Knocking Off, Ripping Off. [↩]
23. 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] [↩]
24. Henry George on Intellectual Property and Copyright  [↩]
25. See William Leggett on Intellectual Property; and Wendy McElroy, For Liberty, Life and Property….But Not The Ownership of Ideas [↩]
26.  Böhm-Bawerk on Patent and Copyright  [↩]
27.  Molinari (and Tucker, and Mutualists) on IP; see also “Benjamin Tucker and the Great Nineteenth Century IP Debates in Liberty Magazine” (July 11, 2022). [↩]
28. 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.” [↩]
29. 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” [↩]
30. 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. [↩]
31. 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. [↩]
32. “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 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? [↩]
33.  Lionel Robbins on the Patent Monopoly  [↩]
34.  Leonard Read on Copyright and the Role of Ideas  [↩]
35. 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 [↩]
36. On The Fountainhead as IP Terrorism: “I designed Cortlandt. I gave it to you. I destroyed it.” [↩]
37. LeFevre on Intellectual Property and the “Ownership of Intangibles” [↩]
38. 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.  [↩]
39. Capitalism and Freedom, p. 127: “In both patents and copyrights, there is clearly a strong prima facie case for establishing property rights.” [↩]
40. IP as Contract [↩]
41. Tabarrok and Murphy: Why Are US Drug Prices So High?  [↩]
42.  see Cordato and Kirzner on Intellectual Property  [↩]
43. See A Libertarian Critique of Intellectual Property; Boundaries of Order: Private Property as a Social System (Auburn, Ala.: Mises Institute, 2009), pp. 164–165; KOL238 | Libertopia 2012 IP Panel with Charles Johnson and Butler Shaffer. But weaker than David Gordon claims; Stephan Kinsella, “My Years with the Mises Institute,”Property and Freedom Journal (May 2, 2026). [↩]
44. 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.” [↩]
45. See references in Remembering Tibor Machan, Libertarian Mentor and Friend: Reflections on a Giant . [↩]
46. “I emailed Dominick Armentano about his book (which I love) entitled “Antitrust and Monopoly: Anatomy of a Policy Failure” and whether he thought American IP laws contributed to the unnatural growth of large companies people mistakenly view as free market monopolies. I asked him if antitrust law was just the crutch that the government used to mend the leg they broke with IP laws? He honestly said he wasn’t too sure how he felt about IP.” Quoted in It’s A Fucking Disgrace that the Libertarian Party Platform Does Not Condemn “Intellectual Property” (Patent and Copyright). [↩]
47. 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.” [↩]
48. 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, citing H. LEPAGE, LA NOUVELLE ECONOMIE INDUSTRIELLE (1988), ch. X (pp. 349–84), “Propriété industrielle, propriété intellectuelle et théorie de la propriété”. See Grok summary of LePage on IP.  [↩]
49. “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). [↩]
50. See Gary North on the 3D Printing Threat to Patent Law. [↩]
51. See KOL364 | Soho Forum Debate vs. Richard Epstein: Patent and Copyright Law Should Be Abolished.   [↩]
52.  Brevets d’invention, droits de reproduction et propriété intellectuelle, Patents, Reproduction Rights and Intellectual Property  [↩]
53. “Economic Incentives in Markets for Information and Innovation“. See also Kinsella, Against Intellectual Property After Twenty Years: Looking Back and Looking Forward, n.75; Legal Hybrids: Beyond Property and Monopoly? and Law and Economics for Civil Law Systems, pp. 358 et seq. [↩]
54. David Friedman on Intellectual Property. [↩]
55. 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 [↩] [↩]
56. Shughart’s Defense of IP; Independent Institute on The “Benefits” of Intellectual Property Protection [↩]
57. Kinsella, “Reply to Van Dun: Non-Aggression and Title Transfer,” in Legal Foundations of a Free Society. [↩]
58. 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 (Nov. 3, 2002). See IP as Contract, and also this Grok report on Schoolland’s IP views. 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.  [↩]
59. He’s pro-defamation law and I was told he is also pro-IP; see facebook and twitter; also Kinsella, Jacob Hornberger on Defamation and Alex Jones, Freedom and Law/C4SIF.org (Oct. 22, 2022). [↩]
60. See links in Cato on Drug Reimportation; Cato Tugs Stray Back Onto the Reservation; and Other Posts. [↩]
61. see Cordato and Kirzner on Intellectual Property  [↩]
62.  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. [↩]
63. see Palmer on Patents; Cato on Drug Reimportation; Cato Tugs Stray Back Onto the Reservation; and Other Posts; Intellectual Property and Think Tank Corruption. [↩]
64. 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’.”  [↩]
65.   Grok; Hicks, Open Objectivism or Closed? Elements: “Intellectual Property” and “Ownership”; Facebook post; tweet; . [↩]
66. 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. [↩]
67. See discussion in my post “Aggression” versus “Harm” in Libertarianism; also J.C. Lester: “Against Against Intellectual Property: A Short Refutation of Meme Communism”  [↩]
68. Independent Institute on The “Benefits” of Intellectual Property Protection. [↩]
69. Jeffrey A. Tucker on Intellectual Property [↩]
70. 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. [↩]
71. 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  [↩]
72. Lacalle on China and IP “Theft.” [↩]
73. 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. [↩]
74.  Preface for the Italian edition of Kinsella’s Against Intellectual Property.  [↩]
75. Tom W. Bell, “Copyright, Philosophically,” in Intellectual Privilege: Copyright, Common Law, and the Common Good (Arlington, Virginia: Mercatus Center, 2014). [↩]
76. AFAIK. See KOL127 | FreeDomainRadio with Stefan Molyneux: SOPA, Piracy, Censorship and the End of the Internet? (2011); The validity of intellectual property with Stefan Molyneux & Jeffrey Tucker, Adam vs. The Man (2017). [↩]
77. See Callahan: Rethinking Patent Law (2000). Who knows if he still holds these views; he seems to have left both libertarianism and Austrian economics behind. See Kinsella, My Years with the Mises Institute, n.34. [↩]
78. see Huemer vs. Epstein on Intellectual Property  [↩]
79. See “Is There Room for Intellectual Property Rights in Austrian Economics?“, Mises.org (3/04/2008); also our recent discussion, KOL491, [tbd] . [↩]
80. tweet: “I agree” (see Dorsey); Planet Money: The Case Against Patents. [↩]
81. “Massie Introduces Patent Reform Legislation Restoring “First to Invent” Protection to Inventors” (April 29, 2024); Intellectual Property Discussion with Mark Skousen. Not a surprise as he never claims to be a libertarian. See Massie on IP and the Jones Act. [↩]
82.  KOL379 | Tom Woods Show Ep. 2145 – Does Intellectual Property Exist?; KOL147 | Tom Woods Show: Patents and Liberty; personal experience. [↩]
83. Masnick on the Horrible PROTECT IP Act: The Coming IPolice State. [↩]
84. 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. [↩]
85. Jerry Brito, ed., Copyright Unbalanced: From Incentive to Excess (Arlington, Va.: Mercatus Center, 2013). [↩]
86. 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). [↩]
87. tweet: “delete all IP law”; Twitter Heroically Promises Not to Use Patents Offensively  [↩]
88. 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.  [↩]
89.  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. [↩]
90.  “The Fight against Intellectual Property” [↩]
91. Vin Armani, “The Ownable and the Unownable,” in Self Ownership: The Foundation of Property and Morality (2017) [↩]
92. 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.  [↩]
93. 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.  [↩]
94. Adam Kokesh, “Intellectual Property,” in Freedom! (2014; https://archive.org/details/FREEDOMEbook), §VI. [↩]
95.  KOL241 | Dave Smith’s Part of the Problem Show: Libertarian Property Theory; personal experience. [↩]
96. Jack Lloyd, “Property Rights,” in The Definitive Guide to Libertarian Voluntaryism (2022. [↩]
97. Chase Rachels, “Property,” in A Spontaneous Order: The Capitalist Case For A Stateless Society (2015), section “Intellectual Property.” [↩]
98. KOL 038 | Debate with Robert Wenzel on Intellectual Property  [↩]
99.  KOL076 | IP Debate with Chris LeRoux ; Can you own ideas? Chris LeRoux debates Daniel Rothschild. [↩]
100.  “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. [↩]
101. 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.