I just recalled that my friend Greg years ago posted a nice broadside against patents “Ideas Are Not Property, On Dismantling IP,” in The Independent Political Report, back in June 2013. As he opens:

The US Supreme Court ruled unanimously this past week that human genes may not be patented. That was a good decision. However those in support of this ruling are by and large hypocrites. They vociferously decried the negative consequences of upholding such patents (limiting research, higher costs, limited choice) but then fail to acknowledge these same deleterious consequences occur for ALL patents. It’s not like these bad things don’t occur for “legitimate” patents but do occur for “illegitimate” ones. Patents are the problem, not their “legitimacy.”

Read more>>

[From my Webnote series]

I’m writing “The Problem with Intellectual Property,” to appear in Handbook of the Philosophical Foundations of Business Ethics, 2nd ed., Christoph Lütge & Marianne Thejls Ziegler, eds. (Springer, forthcoming 2025; Robert McGee, section ed.). (My “The Case Against Intellectual Property,” a different article, appeared in the first edition, Handbook of the Philosophical Foundations of Business Ethics (Prof. Dr. Christoph Lütge, ed.; Springer, 2013) (chapter 68, in Part 18, “Property Rights: Material and Intellectual,” Robert McGee, section ed.).)

One of my footnotes is becoming unwieldy and I will have to pare it down, so I include the full version here, as I have trouble killing my darlings. [continue reading…]

From a tweet (Jan. 7, 2025) (lightly edited):

David Gordon on IP. From 2013. After @jeffreyatucker left.

Gordon doesn’t seem to get the problem with Rothbard’s contractual copyright views. Or maybe doesn’t care, since he doesn’t seem to want to acknowledge serious problems in Rothbard’s argument about IP.

Perhaps this is why Gordon preferred and praised Butler Shaffer’s short, non-systematic, non-comprehensive, nonrigorous, ad hoc and scattershot critique of IP–because it doesn’t get “bogged down” in the details and thus doesn’t criticize Rothbard’s confused approach to IP. Butler’s sympathies are largely correct, but this is is not a clear or systematic approach to the IP issue.

From Gordon’s “Introduction” (who ever heard of an “Introduction” to a “book” that is barely 15 pages long?):

Intellectual Property is a difficult topic, and a lesser author could easily get bogged down in legal technicalities. Not so Shaffer. As always, he penetrates to the fundamentals.

Gee, I wonder who he had in mind here.

P.s. it wasn’t just Tucker who was “pushing” my Against Intellectual Property, as Gordon claims—Hoppe encouraged me to publish it in the Journal of Libertarian Studies and then the Mises Institute awarded it the first O.P. Alford III Prize.

Oh, and I was asked to deliver the Rothbard Memorial Lecture at the Mises Institute’s Austrian Scholars Conference (2008), “The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism.” And to deliver the speech “Intellectual Property and Libertarianism,” at Mises University 2009 (July 30, 2009), which was also podcast on The Lew Rockwell Show and published as “Intellectual Property and Libertarianism” at Mises Daily (Nov. 17, 2009).

Hoppe, by the way, is totally on board with my approach to IP—no surprise, since my own approach is built on his own libertarian theories about property rights, scarcity, and so on.¹

***

Also, from an old Facebook post (April 19, 2015), commenting on David’s review of Shaffer, “Scarcity, Monopoly, and Intellectual Property” [archived comments]:

David Gordon on IP:

“In his discussion of innovation, Shaffer avoids a bad argument that, I regret to say, has beguiled several opponents of IP. It is correctly pointed out that ideas are not scarce, in one meaning of that term. Any number of people can make use of an idea at the same time. By contrast, economic goods are scarce: one’s use of economic goods excludes others from using them. In brief, ideas are non-rivalrous. From this, it is wrongly concluded that the creation of new and valuable ideas poses no problem: If ideas are not scarce, then they are abundant. Obviously, then, IP protection for them is absurd. It makes no more sense than property rights in air, a good which in normal circumstances anyone can have as much as he wants.

A parallel argument will serve to expose the fallacy. A common criticism of the free market is that it cannot supply public goods, such as national defense, in the economically optimal quantity. A public good is non-rivalrous: my consumption of defense, e.g., does not impede your consumption of it. It is alleged that this leads to undersupply of the good.

It would be a very poor answer to this complaint against the market to say, “This is not a problem! Just as the opponent of the free market has said, defense is a public, non-rivalrous good. If so, it is abundant — we need not then worry about its supply.” The error here is apparent: the fact that an indefinite number of people can consume a good at the same time does not show that there is as much of the good as people want. The application of this to the IP argument canvassed above is, I hope, sufficiently obvious.”

For a perhaps contrasting view, see Daniel Coleman and Manuel Lora on IP [from: The Nonviolent Black Market in Information]:

“The technological advantages of sharing information point us to an important praxeological principle that also explains the nonviolence of this black market. Unlike the goods people exchange money for, information is nonscarce. Being nonscarce, it is a nonrivalrous good and, as such, it is free.

In fact, as Rothbard points out, nonscarce goods cannot even be economized — that is, they cannot be made the object of human action.[2] To see the relevance of this point to illegal movie downloads, consider another nonscarce good: air. For the most part, air remains only a part of the general conditions of human action and does not factor into the economizing of means to achieve ends. One can breathe as much air as he likes without exhausting its supply or decreasing the amount (or quality) of air left for everyone else.

It takes special circumstances to make air a scarce good and thus something that acting man must economize. For example, one might decide to dive to the bottom of the sea with the assistance of oxygen tanks — and thus face decisions on what to do with the limited amount of air available. Or, if the earth were to become polluted enough, the world’s breathable air supply could itself become a scarce good and an ongoing concern in human affairs.

We should observe that air, since it is a physical good, is scarce in principle but may be considered nonscarce insofar as its supply and ubiquity exceeds all of the potential uses to which acting persons can put it. But ideas and information are not physical goods, and therefore they are not only nonscarce in practice but also nonscarce in principle. It is impossible to diminish their supply or reduce their quality.

If information cannot be made the object of human action, and illegal digital content is but information, how is it possible for there to be a black market for it? What is it that really happens when users obtain illegal digital content? It is clear that no ideas are altered, exchanged, or diminished. Instead, the black market in information is simply individuals cooperating in order to manipulate their own private property — namely, altering the physical state of their computers in certain patterns. We term these patterns “songs,” “movies,” and the like, informally treating them like physical objects. But at no point does copying a pattern inhibit anyone else’s ability to enjoy that same pattern. It turns out that copying is not theft.”

Further deponent sayeth not.

nb Jeffrey Tucker

From the comments:

Kinsella:

Gordon’s article when posted had a vigorous comment thread, but now that’s all been deleted from Mises.org, unfortunately.

Some remnants I have from old email discussions:

“Dinch42
48p· 1 hour ago
Your argument in the first link is silly. Let’s use the “World Intellectual Property Organization” statistics as an unbiased look into patents as property rights. Then let’s compare the top ten innovative countries (all developed countries) to the bottom ten (all countries with almost no concept of property rights at all, let alone IP) and conclude that since the unbiased rankings from the World Intellectual Property Organization show that the top ten most innovative countries all have strong IP laws and the bottom ten have poor IP laws, IP laws must, in fact, be beneficial to society and must therefore be considered legitimate property. It is such a poorly argued position I don’t even want to bother with the other links.”

…

I don’t usually reply there, but I seem to have been already logged in somehow, so…:

James VanWinkle· 5 hours ago
It wasn’t until Mises.org introduced me to the IP debate from both sides that I realized I had to rethink my belief that intangible property rights made sense. Although I am still making up my mind, I have completely changed my mind and now see patents and copyrights (without the use of contracts) to not be property rights. What I am stuck on is “branding.” The use of brands allows one to “certify” a product. A consumer then can buy a product based on a brand’s reputation. A counterfeit product would not be excluded (it seems to me) if copyrights were not recognized.

So it seems that an important market tool would be lost without copyrights. Is that right?
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Bob_Robertson81p· 49 minutes ago
What I expect is that the “social standard” would apply. Such things as are not direct coercion remain things that people argue about, and seek adjudication for.

For example, if I want to find a MacDonald’s chain restaurant, and I look around and see what _looks_ like a MacDonald’s, and I go in and buy the food and discover that they are not, that might be considered fraud.

Now I went through this with Kinsella in years past myself: The bogus MacDonald’s is not defrauding the MacDonald’s _chain_, the people whom they are fooling, the customers, are who are being lied to if it is proven that the fake was deliberately impersonating the real in order to defraud the customers.

So “branding” certainly is an issue, and being as important as it is there will be ways of supplying that demand.
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Stephan Kinsella63p· less than 1 minute ago
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It is trademark that protects brands, not copyright. And trademark is also illegitimate, but for different reasons. All you need is regular contract and fraud law to handle the issue of someone deceiving the consumer. And it is telling that most people say you need trademark law to stop fraud–that it is based in fraud law. Well, then why do we need it–fraud is already illegal. In fact, trademark law does NOT require a showing of fraud. It only requires you show a “likelihood of consumer confusion.” You can show this even when the customer is not deceived–e.g. when they buy a fake Rolex, knowing that it is fake. Further, trademark lets the original company sue the trademark infringer–but if the victim is the customer, they should be the plaintiff. Not the original company. And further still: trademark law does not even require a showing of likelihood of consumer confusion: there is an antidilution cause of action, based on actions that “dilute” the “value” of someone’s mark, or “tarnish” it. This whole field of law is corrupt and unlibertarian, just as defamation law (reputation rights) is. I explain all this in detail in various articles, — trademark for example is covered in Against Intellectual Property, and in my Reply to Van Dun, all on my site. [“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)]

***

jmorris84· 8 hours ago
“Could one not devise a complicated contract in which everyone agrees to IP protection?” – David Gordon

David, you mean something like The Constitution? Lysander Spooner destroyed the idea that a “complicated contract”, such as the US Constitution, is anything remotely close to a binding contract.
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Jon Dorian· 7 hours ago
It gets deeper than that. Not even the politico-philosophical basis of Social Contracts on which governments are supposed to be based make any sense (see Social Contracts are a Scam). Basically, all governments are invalid from a practical as well as theoretical point of view.
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David Gordon· 7 hours ago
Spooner’s argument is that people haven’t accepted the Constitution as a binding contract. How is this relevant to a contract in which everyone agrees?
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jmorris84· 1 hour ago
David, explain how you plan on having everyone in the world agree to IP protection.
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Bob_Robertson81p· 1 hour ago
I think that’s the point.
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Stephan Kinsella63p· less than 1 minute ago
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According to Rothbard, contracts are not binding promises, as most people today conventionally assume. They are simply transfers of title to owned resources–an exercise of ownership by the owner. That is all. The entire theory of social contract, and other ideas like “imagine a world where people contract to respect IP” is based on a nebulous and incoherent understanding of contract. It is this reason that Rothbard understands slavery contracts are not enforceable–they are not binding promises, and even if they were, breach of such a contractual promised obligation would not call for enslavement–that’s disproportionate; but they are title transfers, but a title transfer is a transfer by an owner of a resource that he has acquired ownership to, to someone else. You do have an ownership right in your body but the person who is the owner is not separable from his body, or from his “will” as Rothbard explains. One of Rothbard’s most revolutionary theories in my view was his theory of contract (he built it on Evers, but Evers apparently got it first from Rothbard — I explain this here, http://libertarianstandard.com/2010/11/19/justice…. Pro-IP libertarians who fling the “contract” notion (and fraud as well) without having a serious clue about the nature of contract and fraud and how they are rooted in and related to a coherent theory of property rights are making bad arguments.

Kinsella:

As a friend wrote me at the time: ” he [Gordon] writes “the argument I had in mind isn’t that because use of ideas is non-rivalrous, there is no problem in the creation of new and valuable ideas. Rather, it is that because use of ideas is non-rivalrous, ideas are “abundant” or “free goods”, available in unlimited supply.”

but first of all, he literally wrote ” ideas are non-rivalrous. From this, it is wrongly concluded that the creation of new and valuable ideas poses no problem: If ideas are not scarce, then they are abundant.” But now he says that that is not the argument he has in mind?

And secondly, what then does he mean by “abundant” and “available in unlimited supply”? If he merely means that they’re nonrivalrous then he wouldnt actually disagree with the argument he is attacking but if he means that there are as many ideas available as we could possibly want, then he’d still be attacking a straw man.

this is very odd.”

Tucker:

To confuse the nonscarcity of ideas with the non-excludability of so-called public goods takes some seriously circuitous thinking. Seems like a crazy diversion tactic also known as sophistry.

Gordon:

I’m grateful to Stephan Kinsella for his attention to my remarks and regret that what I said created puzzlement. I offer the following in clarification.

There are strong arguments against IP rights. A number of these may be found in Butler Shaffer’s monograph, to which the remarks of mine that Stephan quotes were an introduction. Strong arguments, though, do not suffice for some opponents of IP. They think that there is a simple argument that shows that the very idea of an IP right is absurd. This argument I take to be this: (1) Ideas are non-rivalrous, i.e. the use of an idea by someone does not prevent or impede anyone else from using the idea; (2) Rights exist only to settle conflicts about the use of a resource; (3) Therefore, there are no rights to ideas.

The key problem, as I see it, with this argument is that premise (2) is by no means self-evident. Suppose a defender of IP rights claims that the creator of a new idea has, in certain circumstances, a right to prevent others from using it without his permission. I do not accept this view, but it does not seem to be nonsensical, either. To dismiss the claim by appeal to premise (2) begs the question. What exactly is the argument for premise (2)? I am unwilling to accept it as a mere act of conceptual legislation.

In his comment, Jeff Tucker says “To confuse the nonscarcity of ideas with the non-excludability of so-called public goods takes some seriously circuitous thinking. Seems like a crazy diversion tactic also known as sophistry.” In correspondence with me, he emphasized that what impresses him is that ideas are infinitely reproducible: This phenomenon is not to be found among public goods. Though one cannot help but admire his dithyrambic effusions on the topic, their bearing on the IP question remains unclear. Whether I am a sophist is not for me to say, but I do not propose to take lessons in logic from him. Among his many intellectual virtues, I should not be inclined to put precision of thought in the first place.

Kinsella:

“(2) Rights exist only to settle conflicts about the use of a resource;”

It is true that rights DO exist to settle conflicts over the use of scarce resources. So long as you understand that there are and ought to be property rights in scarce resources, then you oppose IP because they amount to a reassignment of rights in already-owned resources. So then the reason for the “only” in this condition is the same as the reason why there are “only” negative rights: if you create positive or welfare rights, they invade negative rights. They come at the expense of negative rights. They are not free. Same with money: if you inflate the money supply you dilute the purchasing power of existing money. Same here: if you have property rights in resources allocated in accordance with Lockean principles and contract, then these property rights must necessarily be undermined and reassigned (redistributed) if IP rights (rights in informaiton, ideas, recipes) are recognized. You cannot have both.

Gordon:

But what is the scope of the initial property rights in resources? I think that you are correct that IP rights do invade the initial resource rights; but an IP defender will say that you are begging the question against him. Again, my point is not that you are mistaken but that the issue cannot be resolved by linguistic legislation on what a right “must” be.

Kinsella:

David, if gold becomes money, it is because the scope of the property rights in that gold are clear enough for it to do so. The same is true with other resources. Principles of original appropriation or homesteading augmented by principles of contractual title transfer or restitution are sufficient to determine ownership of a given contested resource. Competition on the market, evolution, emulation, human civilization, all depend on the spread of information, copying, learning. Learning some possible pattern from observation and then using it to guide your actions to impart some pattern on your own already-owned resources does not invade the borders of others’ already-owned resources, it does not commit a tort, it does not breach a contract. There is no possible excuse to justify limiting such copying activities. To do so would be to limit rights in already-owned resources even though the owner did not agree to it contractually and did not commit any tort. To take his money as compensation/damages, would be to disregard his title to his gold. And so on.

***

David’s wording–he seems to want to leave open the possibility there could be IP in information–that’s what he means about ‘scope’ here I think–
“But what is the scope of the initial property rights in resources? I think that you are correct that IP rights do invade the initial resource rights; but an IP defender will say that you are begging the question against him. ”

— he is saying (I think) that if I homestead material and presumably rearrange it into some other shape (say, I make a printer) then the “scope” of my rights to control the thing includes only what is known-to-date. And that if someone else later comes up with a new use for that type of object (e.g. a novel, a new machine design) then I never homesteaded the “right to use my printer in X Y Z way since the novel did not exist at the time I homesteaded it”. Therefore, if the owner of the pattern of information stops me from using my printer or object for that new purpose, it doesn’t violate my rights because I never owned this right in the first place–the “scope” of my rights in the printer doesn’t extend to printing that novel, the “scope” of my rights in my wood and metal does not include the right to fashion it into a new mousetrap design.
This is reminiscent of an implication of Rothbard’s convoluted contractual copyright argument where he conceives of a mousetrap as “missing” the right to copy it, since the original owner “reserved” that right.

It’s also a variant, perhaps, of the argument I routinely hear: that A can’t complain that B’s copyright is a trespass or theft or interference with A’s use of his own resources, since B’s property rights always limit what A can do with his own property, and therefore, so what if the copyright also limits how A can use his own property–property rights always do this. This is a confusing and insidious and flawed argument I have addressed here: [See “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” in Legal Foundations of a Free Society [LFFS], n.11 and accompanying text; “The Non-Aggression Principle as a Limit on Action, Not on Property Rights” and “IP and Aggression as Limits on Property Rights: How They Differ.”

***

Update: In Gordon’s review of Huebert’s excellent Libertarianism Today,² he writes:

Huebert presents a much more accurate account of Rothbard’s opinions than most [Hmm, wonder who he means here? —SK]. The capsule formulation that most adopt is that Rothbard rejected patents but allowed copyrights. Huebert makes clear that this vastly oversimplifies what Rothbard says.

Rothbard thought that copyright could be justified if it were the product of a contract. For example, if when Smith sells Jones a book, Smith marks it ‘”copyright,” then Jones only receives from Smith the right to make and use that physical book, but not the right to copy it … because a person cannot transfer any more rights than he or she owns, any third parties who later get the book after Jones would be subject to the same restrictions Jones faced … Rothbard justified patents of a sort on similar grounds. If Smith sells Jones a new kind of vacuum cleaner and marks it “patented” (or, as Rothbard would have it “copyrighted”), that tells Jones that he is only receiving the right to the physical object, not the right to make copies of it. (pp. 205–206)

Someone who independently invented the vacuum cleaner would be immune from the reach of the patent.

The standard objection to Rothbard’s position is that such contracts can bind only the people who are parties to them. If you find a copyrighted book that someone has discarded, you are free to copy it as you please; you have made no agreement not to do so. It is because of this point, I think, that Huebert says, “Murray Rothbard began to chip away at the IP idea but still clung to parts of it” (p. 205)”

This is an excellent point (Robert Nozick was among the first to raise it), but is it an objection to Rothbard’s view? In Man, Economy, and State, Rothbard says,

Copyrights … have their basis in prosecution of implicit theft. The plaintiff must prove that the defendant stole the former’s creation by reproducing it and selling it himself in violation of his or someone else’s contract with the original seller. (MES, p. 745, emphasis added)

This suggests that someone who is not party to the contract would be free to copy the creation as he pleased. The point about third parties would then be a consequence of Rothbard’s view, not an objection to it.

Okay so let’s take two cases. A sells his mousetrap to B but does not sell B the “right to copy it” (a bizarre idea introduced by Rothbard). B sells it to C, but since B does not “own” the “right to copy” and can only sell to C “what he owns,” C also does not receive or own the “right to copy” the mousetrap. Thus by Rothbard’s reasoning, C cannot copy it.

Now I want to pause here to emphasize something. The mistaken assumption by Rothbard here is that before you “make a copy” of something, you need some “right to copy.” You do not. In a free society we do not live by permission where everything that is not permitted is presumed to be forbidden. Instead, any action is permissible so long as it does not use someone else’s body or other owned resources without his permission.

Using one’s own resources to rearrange it into whatever shape you want³ does not require permission simply because doing this does not trespass against or invade the borders of anyone else’s property. If I take my own metal and glass and so on, that I already own (by virtue of original appropriation or by contractual transfer from a previous owner) I can do whatever I want with it so long as my actions do not invade or use someone else’s property.

Keep in mind that it is actions that property rights limit, not other property rights, as I explain at length in ch. 11 of my book. Namely: others’ property rights limit my use of their property without their consent. But my rearranging my own owned resources a certain way does not affect the physical integrity of their resources.⁴ If I see A‘s or B‘s mousetrap and want to make a similar one, with my own hands, my own effort and labor, my own mind, my own raw materials, I am free to do so since doing so does not infringe A’s or B’s rights! So Gordon is wrong here when he writes: “Someone who independently invented the vacuum cleaner would be immune from the reach of the patent.” This implies that someone who does not “independently invent” (whatever that means) the vacuum cleaner does not have the right to do so. Not true! Everyone has the right to do this! (Even B, even if B contractually agreed not to perform this action; since body rights are inalienable and because contracts are not binding promises or obligations but rather title transfers to alienable property,⁵ B is free to copy the mousetrap he purchased from A, but this might trigger the payment of monetary damages to A, depending on their contract (which is why B would be stupid to agree to encumber his use of the mousetrap he purchased, but hey, we are talking about a free country).

To return to Rothbard’s reasoning as applied to the hypothetical: this would be, as Rothbard says, a case where C, the Defendant, in copying it and selling it himself, would be “in violation of his or someone else’s contract with the original seller.” That is why Rothbard thinks C can be bound–because of B‘s contract with A. Because he mistakenly thinks C needs some permission to “make copies,” and if he doens’t “get it” from B—and B doesn’t “have” that “permission” since A carved up the mousetrap’s ownership into bundles: he retained this “right to copy” and sold the “rest” of the mousetrap to B. Thus, C‘s normal freedom to make whatever object he wants with his own material is somehow thwarted… because B didn’t “transfer” this … “right to copy” to C … a “right to copy” that C never needed in the first place since “making a copy”—more particularly, making anything at all with his own resources, or more particularly still, rearranging his own resources into whatever shape he wishes, does not invade the borders of or use A’s owned resources (“property”)⁶ without A‘s consent. (And if someone says: yes, C‘s “making a mousetrap” violated A‘s rights to his own “invention”, this is simply question begging, since the question is, whether there are property rights in ideas or, more precisely whether granting nonconsensual negative servitudes to A over C’s resources is justified!⁷ Something IP proponents seem incapable of grasping, or, more likely, unwilling to admit, so dead set on arguing for IP as they are.)

So what of the case where B owns the mousetrap and someone else, say D,  doesn’t buy it at all or ever touch it, he just sees it. And then he “copies” it, starts making and selling copies. Would Rothbard’s strange view exempt D but not C? Why? Neither one of them needs permission to make a copy of the mousetrap with his own resources. For that matter, even B does not need permission! (But he might owe monetary damages, a penalty, so to speak, as noted above.)

If so, this just means that anyone who wanted to “copy” A‘s mousetrap design would simply observe how A‘s or B‘s mousetrap works, refrain from agreeing to a contract, and then start competing. Right? Does Rothbard’s view imply this? Who knows. I doubt even Rothbard knew.

Of course, by the way, this “contractual copyright” scheme Rothbard has cobbled together this was really the law, it would dissuade people from ever buying the mousetrap in the first place for fear they now have in effect acquired contractual liability, in the event they ever compete with A. (For the same reason that large companies return unopened submissions by outsiders of their ideas; they do not want to be accused of “stealing” or infringing some IP. And for the same reason some artists who are influenced by an earlier song often don’t admit it or deny it, because they do not want to be liable for copyright infringement or having to pay royalties!)

This is obviously absurd. This is why I have argued that you cannot use contracts to emulate something like copyright. For example suppose Amazon makes a deal with its authors to sell their books only to customers who agree to (a) pay for the book and (b) sign a liability clause agreeing to pay millions of dollars to the author/Amazon if they ever sell copies of the book (or similar copies, translations, sequels, things “inspired” by it, and so on) (if the contractual penalty is small, then it would not be sufficient to deter copying). Obviously, imposing this extra cost on customers reduces the price you can charge, and also you lose lots of customers who will just say “fuck that, I’ll pirate it.”

1. Hoppe on Intellectual Property. [↩]
2. See also my own, The Best Introduction to Libertarianism Ever. [↩]
3. As Rothbard recognizes: see Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’, C4SIF (Sep. 29, 2010): “Men find themselves in a certain environment, or situation. It is this situation that the individual decides to change in some way in order to achieve his ends. But man can work only with the numerous elements that he finds in his environment, by rear­ranging them in order to bring about the satisfaction of his ends. With reference to any given act, the environment external to the individual may be divided into two parts: those elements which he believes he cannot control and must leave unchanged, and those which he can alter (or rather, thinks he can alter) to arrive at his ends. The former may be termed the general conditions of the action; the latter, the means used. Thus, the individual actor is faced with an environment that he would like to change in order to attain his ends. To act, he must have technological ideas about how to use some of the elements of the environment as means, as pathways, to arrive at his ends. Every act must therefore involve the employment of means by individual actors to attempt to ar­rive at certain desired ends. In the external environment, the gen­eral conditions cannot be the objects of any human action; only the means can be employed in action.” [↩]
4. “Selling Does Not Imply Ownership, and Vice-Versa: A Dissection,” LFFS. [↩]
5. See Stephan Kinsella, “The Title-Transfer Theory of Contract,” Papian Press Working Paper #1 (Dec. 20, 2024), and idem, “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023). [↩]
6. See LFFS, ch. 2, App. I, section “Concept and Definition of ‘Property,'” quoting Yiannopoulos: “Accurate analysis should reserve the use of the word property for the designation of rights that persons have with respect to things.” [↩]
7. Intellectual Property Rights as Negative Servitudes. [↩]

Related:

• Masnick on Innovation vs. Invention
• Phan: 11 types of cross-industry innovation
• Study: Most Important Innovations Are Not Patented
• Jared Diamond on Inventors and Innovation
• Jared Diamond on Inventors and Innovation

I received this email last night:

Hello ! I hope this message finds you well!

I’m reaching out to share my recently published book: Patent Dystopia, How the Patent System Strangled Innovation, Job Creation and the Economy

I believe you will find the themes in my book both relevant and thought-provoking, even if you don’t end up agreeing with every point.

I think it complements your work in meaningful ways, and I even quote and cite of your books, “Against Intellectual Property” [continue reading…]

On Twitter, someone asked pro-IP Objectivist law professor Adam Mossoff for recommendations for IP-skeptical writing from a pro-market and pro-industry perspective. (See also related tweets from Garett Jones and Jacob Huebert)

Shea Levy @shlevy 18h

@AdamMossoff
do you have a recommended resource for the generally market/industry-friendly but IP-skeptical type?

I’m not sure if Mossoff understood the questions (but I doubt that), since he replied with a list of apparently pro-IP writings (I haven’t gone through them yet; will fisk this later): [continue reading…]

KOL452 | Ethics, Politics, and IP for Engineering Students

Podcast (kinsella-on-liberty): Play in new window | Download (68.5MB)

Kinsella on Liberty Podcast: Episode 452.

I was asked recently to guest lecture for a course taught to some mechanical engineering students at Colorado University Boulder (EMEN 4100: Engineering Economics) by the lecturer, David Assad. Assad covers some ethics related matters in the latter part of the course and asked me to talk generally about ethics and related matters. I discussed ethics, morality, politics, and science. I discussed ethics and its relationship to science and politics, and discussed about what science is, the types of sciences, ethics and ethical theories and the relationship to specialized ethics and morality in general, and its relationship to political ethics and political philosophy. I then discussed libertarianism in general, the nature and function of property rights, and then explained how the intellectual property issue can be addressed based on the libertarian and private law perspective. The references and notes I gave the class are embedded in the slides and reproduced below.

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More copyright insanity. All a predictable result of unnatural, evil IP law. I can’t show this whole article, because of … evil copyright law. But a few choice nuggets

Can You Copyright a Vibe?

One influencer is suing another, accusing her of copying her minimalist aesthetic on social media. It turns out there is a lot of gray area in shades of beige.

The oversize beige cable-knit sweater. The center-parted hair. The right knee pointed out, creating a curve at her left hip.

Practically every detail in the photo — right down to the matching short set — looked familiar to Sydney Gifford. So did the woman posed in front of the nondescript white wall.

Days earlier, Ms. Gifford, a 24-year-old lifestyle influencer, had shared a photo with her thousands of followers that was virtually identical. The woman in this new photo was a fellow influencer, Alyssa Sheil, with whom she had gone shopping and done a photo shoot months earlier.

At the time, she thought their interactions had been merely awkward. But as she scrolled through Ms. Sheil’s photos on Instagram for the first time in nearly a year, she said, Ms. Gifford suspected those meetings had been some kind of aesthetic espionage.

… But in the carefully curated world of social media, Ms. Gifford has leveled a perhaps more severe charge against her: stealing her vibe.

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Kinsella on Liberty Podcast, Episode 450.

My discussion/interview by Matthew Sands of the Nations of Sanity project as part of his “Together Strong” debate series.

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From a facebook post by David Veksler:

There is no such thing as “intrinsic value” in economics. Value exists only in the eyes of the beholder. The concept of “value” is made possible by being valuable to a specific person, for a particular purpose. The only thing in the universe that is intrinsically valuable is human beings.

TLDR: Stop with nonsense like “Bitcoin has no intrinsic value”

My comment (lightly edited here):

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My latest article: Stephan Kinsella, “Decouple Trade and IP Protection,” Brownstone Institute (Dec. 4, 2024; perma).

Related:

• Trump’s Proclamation World Intellectual Property Day, 2025: Of course these geniuses just repeat the same nonsense about IP being “the same as” property and how infringing IP is “theft” of course they are insinuating China “steals American IP,” all of which are confused bullshit lies and distortions. See The Structural Unity of Real and Intellectual Property; Copying, Patent Infringement, Copyright Infringement are not “Theft”, Stealing, Piracy, Plagiarism, Knocking Off, Ripping Off; KOL460 | Rant about the “China is Stealing Our IP” Myth
  • This Proclamation also explicitly admits that it is using tariffs and other trade negotiations to engage in IP imperialism: “Through the strategic use of tariffs, we are recentering our trade policy and securing stronger intellectual property protections in new and existing trade deals.”
• The China Stealing IP Myth
• “Patents, Pharma, Government: The Unholy Alliance,” Brownstone Institute (April 1, 2024)
• “Free-trade” pacts export U.S. copyright controls
• Patents and Pharmaceuticals;
• Kinsella, “FDA and Patent Reform: A Modest Proposal” (May 5, 2023)
  • “Are Patents Needed to Make Up for FDA Kneecapping?” (July 2, 2011)
• Tabarrok’s Launching the Innovation Renaissance: Statism, not renaissance: “in the same discussion Tabarrok mentions positively how the US twisted the arm of Australia in 2005 when negotiating a “free trade” agreement to expand its IP protection for pharma patents and also extended its copyright term from life of the author plus 50 years to life plus 70, to match the insane US term. Free trade agreements have nothing to do with local property rights; that is the province of bilateral investment treaties, which are usually negotiated between a developed country and a developing country. So here we have so-called IP reformer who says IP protection is too strong but he gets the term of patents wrong, and things they should be extended, and favors US IP imperialism to force other countries to extend their own copyright terms.”

Decouple Trade and IP Protection

By Stephan Kinsella
December 4, 2024
Government, Policy, Society 9 minute read
Brownstone Institute (Dec. 4, 2024; perma)

Many of us who support free trade and private property rights tend to look favorably on regional and bilateral treaties that claim to further these goals. There is a vast network of bilateral investment treaties, or BITs, for example, designed to promote foreign direct investment by Western firms into developing nations by limiting the host state’s ability to expropriate the investments.

These BITs aim to strengthen the property rights of international investors in the host state so as to make investment less risky. There are more than 2,500 BITs in force worldwide; the US itself currently has BITs in place with 39 countries. BITs and other measures can benefit both host states and international investors by strengthening local property rights, as I explain in International Investment, Political Risk, and Dispute Resolution.

In addition to investment treaties that concern the property rights of foreign investors in host countries, there is also a global network of bilateral and multilateral free trade agreements ostensibly aimed at promoting trade between nations. Many of us favored so-called free trade agreements like NAFTA even if we would have preferred more radical approaches. Regional, multilateral, and bilateral trade agreements are viewed as incremental improvements even if thousands of pages of regulations could be easily replaced by a couple of sentences or, better, unilateral abolition of import tariffs.

But over time it has become apparent that “free trade” agreements often serve as a pretext for exporting Western intellectual property (IP) law—mainly US-style patent and copyright law—onto the rest of the world. This is what I call IP imperialism. Here’s how it works. First, we are told that intellectual property rights are legitimate, and in fact are part of the reason for the relative success of the industrialized countries in the West. (It’s not. For more on this, see You Can’t Own Ideas: Essays on Intellectual Property.)

Next, developing countries are chided for not having strong IP law enforcement. They are even accused of “stealing” know-how and technology from Western capitalist firms as if there is something wrong with manufacturers in a developing country using the most efficient known production techniques.

Finally, the West, primarily the US, uses its leverage to pressure developing nations to adopt and strengthen IP protections and adopt international IP treaties, primarily for the benefit of US corporate interests, namely pharmaceuticals (patent) and Hollywood and music (copyright). This has led to various IP treaties on copyright, patent, trademark, and so on, which most states and the world are party to (including China, Russia, North Korea, and so on) and which require member states to protect IP in their national legislation. And there is continual agitation by the Western powers to add even more IP protections and to pressure other countries to adopt them.

In addition to international IP treaties, the US and other countries pressure developing countries to strengthen local IP protection by including IP provisions in multilateral, regional, and bilateral free trade agreements. The US does not deny this; it admits it. As stated by the United States Trade Representative:

“USTR’s Innovation and Intellectual Property (IIP) uses a wide range of bilateral and multilateral trade tools to promote strong intellectual property laws and effective enforcement worldwide, reflecting the importance of intellectual property and innovation to the future growth of the U.S. economy. … Key areas of work include: … the negotiation, implementation, and monitoring of intellectual property provisions of trade agreements … ”

But the ostensible purpose of a free trade agreement is simply to lower tariffs and barriers to international trade. Such an agreement really should have nothing to do with the property rights in force in the other country (unlike BITs, which do concern the protection of property rights of foreign investors in the host country). Notice that free trade agreements never dictate to the developing country that they must respect their citizens’ property rights, not engage in eminent domain, not engage in confiscatory taxation, and so on. So then why do these “free trade” agreements require IP rights to be protected in the developing country?

In any case, this is what the US and other countries do. Their free trade agreements invariably contain a section requiring developing nations to strengthen their local IP law. For example the agreement may require the other state to increase its copyright term even beyond what is required by the IP treaties.

As an example, the Trans-Pacific Partnership was being negotiated for years between the US and various Pacific Rim economies, until it was scuttled after Donald Trump won the US Presidency in 2016. Of course, although this supposed free trade agreement has nothing to do with the local property rights of member states, it naturally included an entire chapterrequiring member states to ratchet up their local IP protections.

The Berne Convention on copyright requires member states to protect copyright for at least 50 years after the author’s death (for perspective, copyright used to last for only 14 or 28 years); in the US, copyright protection now lasts for 70 years after the death of the author. The TPP proposed to require member states to follow suit. During negotiation of the TPP, Canada considered strengthening its copyright law. Finally, in 2022, as a result of terms in the United States–Mexico–Canada Agreement, which replaced NAFTA, Canada got on board and finally extended its copyright term to 70 years after death. In 2018, as a result of the TPP negotiations, Japan also extended its copyright term for some works.

This kind of pressure works, even on other advanced economies not as beholden to IP special interests as the US government is. And developing nations of course grudgingly go along as well. They sometimes complain, even if those complaining accept the legitimacy of IP but merely want more “balance” or “flexibility.” See, for example, a paper by Anselm Kamperman Sanders, “The Development Agenda for Intellectual Property: Rational Humane Policy or ‘Modern-day Communism’?,” in Intellectual Property and Free Trade Agreements (pdf), which notes:

More in particular, the mounting pressure from developing nations to view intellectual property not just as a means to guarantee the interests of rightholders, but also to bring about economic development and welfare for the whole of global society.

…In the fall of 2004 Argentina and Brazil submitted a formal proposal to the WIPO relating to the establishment of a new development agenda within WIPO The proposal addresses the ‘knowledge gap’ and ‘digital divide’ that separates wealthy nations from developing nations and calls for a case-by-case assessment of the role of intellectual property and its impact on development.

Whereas in the previous years the prevailing trend has been to harmonise international legal norms through the World Trade Organisation’s (WTO) Agreement on Trade Related Aspects of Intellectual Property (TRIPS Agreement), there is now a clear call for increased flexibility.
…these provisions place the protection of intellectual property rights in the context of a balance of rights and obligations of producers and users of technical knowledge.

…these provisions recognise that WTO Members are entitled to a certain degree of flexibility when it comes to the protection of public health and nutrition, and the promotion of public interest in sectors of vital importance to their socio-economic and technological development. (pp. 3–4)

In other words, the WTO is supposed to protect IP but balance the harms that strict, Western-style IP enforcement puts on developing countries, by giving them flexibility, such as the ability to issue compulsory licenses (which blunt the harshness of patents), access to technology transfers, etc.
However,

the Western world is undermining the Development Agenda by introducing so-called TRIPS-plus obligations through the WTO system and bilateral Free Trade Agreements (FTAs) and Bilateral Investment Treaties (BITs).

…The Development Agenda is about finding flexibility in the implementation of TRIPS obligations but also about balancing the monopoly of the intellectual property rights holder with the interests of third parties and of society as a whole. Flexibility is, however, something that sits uneasy with the current trend in intellectual property policy. This trend has been one of maximizing rights to stamp out piracy and one of harmonization to provide a one-size fits all level playing field of rights. (p. 4–5)

No surprise. Sanders then quotes Bill Gates, who “In a recent interview … even went so far as to say that restricting intellectual property rights is tantamount to communism.” As Gates said:

Q. In recent years, there’s been a lot of people clamouring to reform and restrict intellectual-property rights. What’s driving this, and do you think intellectual-property laws need to be reformed?

No, I’d say that of the world’s economies, there’s more that believe in intellectual property today than ever. There are fewer communists in the world today than there were. There are some new modern-day sort of communists who want to get rid of the incentive for musicians and moviemakers and software makers under various guises. They don’t think that those incentives should exist.

And this debate will always be there. I’d be the first to say that the patent system can always be tuned—including the US patent system. There are some goals to cap some reform elements. But the idea that the United States has led in creating companies, creating jobs, because we’ve had the best intellectual-property system—there’s no doubt about that in my mind, and when people say they want to be the most competitive economy, they’ve got to have the incentive system. Intellectual property is the incentive system for the products of the future.

It’s a shame that Sanders and others can only dimly see the real problem: that IP law is unjust. Even those who sense something is wrong with the provisions foisted on developing countries by bilateral and multilateral trade agreements (see, e.g., www.bilaterals.org) criticize the wrong things about free trade agreements. It’s not the free trade part that is the problem. But they all sense something is unfair.

In any case, Gates’s comments are ironic on many levels. First, he used to understand that patents impede innovation. As he said back in 1991, “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” But now Microsoft is just a huge rent-seeking IP bully.
Second, his underlying assumption is that patents are pro-West, part of capitalism, and that socialism is opposed to patents. This is not true either. Most countries, including socialist ones, have IP law, even if the “capitalist” West keeps pushing them to strengthen IP protections.

This should not be a surprise since IP is inherently statist, an artificial manufacturing of pseudo Rights even as it systematically violates property rights. IP rights are not part of capitalism; it is one of modern “capitalism’s” socialistic aberrations. The West should not foist its destructive IP laws onto developing countries and certainly should not link it to free trade.
Published under a Creative Commons Attribution 4.0 International License

For reprints, please set the canonical link back to the original Brownstone Institute Article and Author.

Author
Stephan Kinsella

Stephan Kinsella is a writer and patent attorney in Houston. Formerly a partner in the Intellectual Property Department with Duane Morris, LLP, General Counsel and VP-Intellectual Property for Applied Optoelectronics, Inc., his publications include Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), Against Intellectual Property (Auburn, Ala.: Mises Institute, 2008), You Can’t Own Ideas: Essays on Intellectual Property (Papinian Press, 2023), The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023), Trademark Practice and Forms (Thomson Reuters, 2001–2013); and International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide, 2nd ed. (Oxford University Press, 2020).

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I sent this recently to the CEO and President of the Houston Symphony, regarding its 2030 Strategic Plan (pdf), which aims to “establish the Houston Symphony as a world-class orchestra.” Pillar 1 of the 2030 Strategic Plan includes the following goal/initiative:

Regularly engage in touring and recording projects:

To establish ourselves as a world-class orchestra, we need to increase our visibility beyond Houston through touring and recording. A comparison with other major U.S. orchestras shows that most orchestras have returned to some touring over the past two years, while Houston has not toured. Additionally, the orchestra has released only three albums in the last five years. To address this, we will prioritize periodic international touring and focus on building our recording identity with unique commissions and performances that showcase Houston’s distinct character. Touring and recording projects are critical for the orchestra’s artistic development, for making our artistry more broadly accessible, and for cementing our reputation as a world-class orchestra.

My letter is below. The copyright mindset runs deep, so it is unlikely this advice will be heeded. Still, I thought it worth a shot.

Update: Jeff Tucker informs me of something I was not aware of in the music industry. Apparently there are modern editions or arrangements or “engravings” of classical, public domain works which the publishers claim copyright in, and modern orchestras usually use the more recent engravings when they record or perform. If this is right, then to be able to release a recording of a classic work into the commons the orchestra might want to use the original score or a later public domain engraving. Still, I see no reason it could not be done.
[continue reading…]

In a recent tweet I bemoaned that even many people skeptical of IP still favor it and oppose abolition, and I glancingly mentioned tech journalist Glyn Moody (I have cited him positively many times for his work critical of IP; see his techdirt posts). He replied and said he is actually for IP abolition, and pointed me to his book, Walled Culture, which is also free online and CC0!

The book may not explicitly be anticopyright but the vibe is there. He writes (last few pages of the last chapter): [continue reading…]

I’ve long noted how the West, primarily the US, uses its leverage to pressure developing nations to adopt and strengthen intellectual property (IP) protections and adopt international IP treaties, primarily for benefit US corporate interests, namely pharmaceuticals (patent) and Hollywood and music (copyright). This is a form of what I call IP imperialism. It is often done by insisting on local IP protection even in agreements that have nothing to do with the local property law of developing nations, namely bilateral and multilateral free trade agreements.¹ The purpose of a free trade agreement is simply to lower tariffs and barriers to international trade, but the US and other western powers usually insist on developing nations strengthening local IP law even though this has nothing to do with trade but instead is a matter of local property rights.² [continue reading…]

1. I discuss bilateral and multilateral investment and trade agreements in detail in my book International Investment, Political Risk, and Dispute Resolution, 2d ed. (Oxford, 2020). [↩]
2. See various posts on IP imperialism here. [↩]