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Intellectual Property: As usual, Rothbard gets it right

Intellectual Property: As usual, Rothbard gets it right

On stealing BitCoins, selling brain patterns, and copying people

There has been a fierce debate going on recently about intellectual property (IP) between libertarians, led by Stephan Kinsella on the anti-IP side and Bob Wenzel on the pro-IP side. In recent years, the momentum has shifted toward the anti-IP side, with prominent thinkers such as Stephan Kinsella, Hans-Herman Hoppe, Jeffrey Tucker, and others, coming out against IP. In the pro-IP side corner sits Bob Wenzel, Paul Cwik, but also Murray Rothbard and Ludwig von Mises.

In this article, I will argue that, as usual, Murray Rothbard gets it right. Then I will address Kinsella’s arguments, based on his treatise “Against Intellectual Property,” Copyright 2008 Mises Institute . That’s right, Kinsella’s book is copyrighted.

So, what is Rothbard’s view?

In chapter 16 of the Ethics of Liberty, Rothbard writes:

Violation of (common law) copyright is an equivalent violation of contract and theft of property. For suppose that Brown builds a better mousetrap and sells it widely, but stamps each mousetrap “copyright Mr. Brown.” What he is then doing is selling not the entire property right in each mousetrap, but the right to do anything with the mousetrap except to sell it or an identical copy to someone else. The right to sell the Brown mousetrap is retained in perpetuity by Brown. Hence, for a mousetrap buyer, Green, to go ahead and sell identical mousetraps is a violation of his contract and of the property right of Brown, and therefore prosecutable as theft. Hence, our theory of property rights includes the inviolability of contractual copyright.

A common objection runs as follows: all right, it would be criminal for Green to produce and sell the Brown mousetrap; but suppose that someone else, Black, who had not made a contract with Brown, happens to see Green’s mousetrap and then goes ahead and produces and sells the replica? Why should he be prosecuted? The answer is that, as in the case of our critique of negotiable instruments, no one can acquire a greater property title in something than has already been given away or sold. Green did not own the total property right in his mousetrap, in accordance with his contract with Brown—but only all rights except to sell it or a replica. But, therefore Black’s title in the mousetrap, the ownership of the ideas in Black’s head, can be no greater than Green’s, and therefore he too would be a violator of Brown’s property even though he himself had not made the actual contract.

In chapter 10 of Man, Economy, and the State, Rothbard writes:

Turning now to patents and copyrights, we ask: Which of the two, if either, is consonant with the purely free market, and which is a grant of monopoly privilege by the State? In this part, we have been analyzing the economics of the purely free market, where the individual person and property are not subject to mo¬lestation. It is therefore important to decide whether patents or copyrights will obtain in the purely free, noninvasive society, or whether they are a function of government interference.

Almost all writers have bracketed patents and copyrights to¬gether. Most have considered both as grants of exclusive mo¬nopoly privilege by the State; a few have considered both as part and parcel of property right on the free market. But almost everyone has considered patents and copyrights as equivalent: the one as conferring an exclusive property right in the field of me¬chanical inventions, the other as conferring an exclusive right in the field of literary creations.[93] Yet this bracketing of patents and copyrights is wholly fallacious; the two are completely different in relation to the free market.
It is true that a patent and a copyright are both exclusive property rights and it is also true that they are both property rights in innovations. But there is a crucial difference in their legal enforcement. If an author or a composer believes his copy¬right is being infringed, and he takes legal action, he must “prove that the defendant had ‘access’ to the work allegedly infringed. If the defendant produces something identical with the plaintiff’s work by mere chance, there is no infringement.”[94] Copyrights, in other words, have their basis in prosecution of implicit theft. The plaintiff must prove that the defendant stole the former’s crea¬tion by reproducing it and selling it himself in violation of his or someone else’s contract with the original seller. But if the de¬fendant independently arrives at the same creation, the plaintiff has no copyright privilege that could prevent the defendant from using and selling his product.

Patents, on the other hand, are completely different. Thus:
You have patented your invention and you read in the newspaper one clay that John Doe, who lives in a city 2,000 miles from your town, has invented an identical or similar device, that he has licensed the EZ company to manufacture it. . . . Neither Doe nor the EZ company . . . ever heard of your invention. All believe Doe to be the inventor of a new and original device. They may all be guilty of in¬fringing your patent . . . the fact that their infringement was in ig¬norance of the true facts and unintentional will not constitute a de¬fense.[95]

Patent, then, has nothing to do with implicit theft. It confers an exclusive privilege on the first inventor, and if anyone else should, quite independently, invent the same or similar machine or product, the latter would be debarred by violence from using it in production.

We have seen in chapter 2 that the acid test by which we judge whether or not a certain practice or law is or is not consonant with the free market is this: Is the outlawed practice implicit or explicit theft? If it is, then the free market would outlaw it; if not, then its outlawry is itself government interference in the free market. Let us consider copyright. A man writes a book or composes music. When he publishes the book or sheet of music, he imprints on the first page the word “copyright.” This indicates that any man who agrees to purchase this product also agrees as part of the exchange not to recopy or reproduce this work for sale. In other words, the author does not sell his property out¬right to the buyer; he sells it on condition that the buyer not reproduce it for sale. Since the buyer does not buy the property outright, but only on this condition, any infringement of the con-tract by him or a subsequent buyer is implicit theft and would be treated accordingly on the free market. The copyright is there¬fore a logical device of property right on the free market.

Rather than the nebulous term “idea,” I will use the terms “pattern,” as in “pattern of information.”

Thus, Rothbard believes that an expression of a pattern in a tangential format (e.g., a book), can be sold with a restrictive covenant on the title, preventing the buyer from copying the pattern of words. If the buyer then trades or gifts the book to a third party, that restrictive covenant remains, because the buyer cannot impart ownership rights onto the book that he did not initially have. The third party is thus bound by the restrictive covenant. It does not matter whether the third party is aware of the restrictive covenant, just like it does not matter if you buy a house to which someone else already has title. That’s why there is title insurance. Wenzel used the analogy of a rental car. If I rent a car and then sell the car to you, you do not own the car, because I did not have title to the car to sell in the first place.

Now, Rothbard does not address why patterns can be owned. However, we can deduce that, since Rothbard believes that ownership comes from mixing one’s own labor with a resource, ownership of a pattern comes from mixing one’s own labor with the previous patterns that were used to create the new pattern. But what gives you the right to use previous patterns? Well, not all patterns are scarce. You have the right to use a non-scarce pattern and mix it with your labor to create a scarce pattern. For example, I can use English words, which are not scarce patterns, to write a novel, which will be scarce. Furthermore, even with scarce patterns, you can have the right to use a pattern and derive new patterns from it, while still lacking the right to copy the pattern.

Now let’s get to Kinsella’s arguments. Stay with it, I saved the best for last.

1) Kinsella argues that distinction between which IP is protectable and which IP is not protectable is arbitrary. For example, why are novels protected by copyright, but not fashion designs or recipes? Since we can’t make a rigorous distinction between what is protectable and what is not, there is something wrong with the concept of IP.

Well, you can certainly copyright a book of recipes, or a book of fashion designs. So I would say that fashion designs and recipes can be copyrighted. Why is it that it seems reasonable to copyright a book of recipes, but not reasonable to copyright a single recipe? It appears to be a question of length and relates more to what the private law, as evolved through the market process, would set as a reasonable standard. For example, how much smoke pollution would you have to endure from your neighbor before you could sue him? The answer is somewhere between one molecule of smoke and total inundation of your property, and the legal system would sort that out through the market process. The same process would apply to IP.

2) Kinsella argues that IP gives you partial ownership of other people’s property, because an IP owner can prohibit them from performing certain actions with their own property. Therefore, IP violates other people’s property rights.

There are many examples of restrictions on property that are consistent with libertarian principles. Some examples of property restrictions include land easements, restrictive covenants, equitable servitude clauses, rental agreements, and leases and licenses. Furthermore, my property sets limits on what you can do with your property. You cannot drive your car over my lawn.

Here is an example straight from Rothbard ( Rothbard, Murray N. (1997). Applications and criticism from the Austrian school.):

Most of us think of homesteading unused resources in the old-fashioned sense of clearing a piece of unowned land and farming the soil. ... Suppose, for example, that an airport is established with a great deal of empty land around it. The airport exudes a noise level of, say, X decibels, with the sound waves traveling over the empty land. A housing development then buys land near the airport. Some time later, the homeowners sue the airport for excessive noise interfering with the use and quiet enjoyment of the houses.
Excessive noise can be considered a form of aggression but in this case the airport has already homesteaded X decibels worth of noise. By its prior claim, the airport now "owns the right" to emit X decibels of noise in the surrounding area. In legal terms, we can then say that the airport, through homesteading, has earned an easement right to creating X decibels of noise. This homesteaded easement is an example of the ancient legal concept of "prescription," in which a certain activity earns a prescriptive property right to the person engaging in the action.

Thus, there is nothing inherently wrong with restrictions on property.

3) Kinsella argues that you cannot own what is in someone else’s head.

Why not? Most libertarians will agree that you should be able to sell your organs. Thus, if I want to sell Joe a kidney, I can do so. But what if I want to rent him my kidney? Say Joe is waiting for an organ donor and is tired of being on dialysis. Joe knows it will take about a year for him to get a new kidney and we agree that, for a princely sum which he can afford, I will rent him my kidney for year. I, of course, put in all kinds of clauses in the contract about how he is to treat my kidney while it is in his body. Now my kidney is in Joe’s body and I have partial property rights to parts of his body. Note that this can extend to beyond my kidney. I can stipulate that Joe can’t drink alcohol while he has my kidney, which puts a restrictive covenant on his liver.

We can extend this little thought experiment to the brain. Just imagine that science has advanced to the point that we can transplant brain tissue. For example, I can rent Joe part of my awesome frontal cortex. Now, that may seem silly, but how about renting out a memory chip that interfaces with brain tissue and stores a certain skill set? Or, assume I develop the ability to rewire people’s brains to give them a particular engram. An engram is a term used for a set of neural connections that gives someone a particular skill. Let’s say we sign a contract that I give you an engram for fighting skills, but I stipulate that you can’t use your fighting skills to start a fight with an unwilling participant. This puts a restrictive covenant on your brain.

So, there is nothing inherently wrong with the possibility of owning what is in someone else’s head.

4) Kinsella argues that ownership is based on the first occupier, and is not based on mixing one’s own labor with the resource.

Kinsella argues against Rothbard’s, and Locke’s, criterion of homesteading. Rothbard quotes Locke (John Locke, "An Essay Concerning the true original, extent, and end of Civil Government"):

Though the earth and all inferior creatures be common to all men, yet every man has a "property" in his own "person." This nobody has any right to but himself. The "labour" of his body and the "work" of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property.

Kinsella disagrees with this basic homesteading principle espoused by Rothbard. Kinsella argues that whosoever is the first occupier of a resource is the rightful owner, and that labor has nothing to do with it. But, as Cwik points out, isn’t an act of occupation an act of labor? Furthermore, who has more claim on a piece of land? A first person who simply walks across it and leaves, or a second person that follows him and tills the land? Now, we can argue that the person that walked across the land and then left homesteaded the land and then abandoned the property, but that does not address the fact that the walking is an act of labor. Without labor, you cannot homestead.
How does this point apply to IP? Kinsella argues that creation of a thing, which is an act of labor, is not sufficient to demonstrate ownership of the thing. For example, if you create a statue out of a block of marble that you do not own, you do not own the statue. Rather, the owner of the marble owns the statue. In this, Kinsella is correct.

However, there are many examples of mixing one’s labor with a non-occupied, non-scarce resource to create a scarce resource. For example, I can make art out of garbage. This is the case with IP. I am mixing my labor with a non-scarce resource (that is, non-scarce patterns), to create a new scarce pattern.

5) Kinsella argues that scarcity is defined by rivalry, and scarcity is the basis for ownership. Ideas are not rivalrous and therefore not scarce and thus cannot be owned. “The very possibility of conflict over a resource renders it scarce.”

A scarce good is not necessarily rivalrous. A good is rivalrous if consumption by one consumer prevents consumption by another consumer. For example, you and I both can’t eat the same apple, can’t use the same bicycle, can’t get a massage from the same person at the same time, etc. But there is a class of goods known as club goods, wherein consumption by one person does not preclude consumption by another person. Examples of club goods include museums, movie theaters, cable television, or a boat ride. Imagine 10 people on a boat, enjoying a sunny day. Another boat comes by, and the captain offers the 10 people a ride on his boat for $100 each. They tell him to beat it. But if their boat hits a rock and starts to sink, and the captain comes back and offers them the boat ride again, they will happily pay for the boat ride. Furthermore, all 10 people are able to consume the boat ride. Yet the boat ride is clearly scarce.
Furthermore, imagine Robinson Crusoe. He has no rivals on his island. Yet he still has to make decision about scarce resources. Furthermore, what does he do with his time? As Cwik points out, time is also scarce.

Thus, scarcity is not defined by rivalry. Rather, scarcity is determined by supply and demand. Something is scarce if there is insufficient supply to meet all demand. This is why air is not scarce. It's in great demand, but there is sufficient supply. How do we know something is scarce? Someone is willing to trade for it (i.e., It has a price. In the example of Crusoe, he is willing to trade his time for it). But doesn't a price imply a bidding contest and thus rivalry? No, because there can be just one prospective buyer. But isn't there rivalry between the buyer and the seller? In other words, isn’t it necessarily the case that there is a conflict, resolved by the trade, as to who will consume the good, the buyer or the seller? No, because there are goods that can be consumed by both the buyer and the seller. For example, I can let you join me in my hot tub for a beer. Now we are both consuming the hot tub.
So, can a pattern be scarce? I submit that if there is insufficient supply of copies of a pattern to meet the demand, that pattern is scarce.

Having addresses some of Kinsella’s arguments, let’s get to the heart of the matter. Can you own patterns?

My view, which I believe is consistent with Rothbard, is that one homesteads something by mixing one’s own labor with a previously unowned resource. The resource can be scarce, as in land, or not scarce, as in air. For example, I can fix nitrogen from the air to create fertilizer. In the case of IP, I am mixing my labor with non-scarce patterns.

Let’s take a look at some revealing examples.

1) What is a BitCoin? My understanding is that a BitCoin is essentially a private key, and he who knows the private key can control the BitCoin. Thus, a BitCoin is a pattern. Are BitCoins scarce? Can they be owned? What about a brain wallet? A brain wallet is a sufficiently large pattern, such as a very unlikely, long sentence, which can be memorized and stored in someone’s brain, and which represents a BitCoin. Can you own a brain wallet? Can you own a brain wallet stored in someone else’s brain?

2) What about your DNA pattern? Do you own your DNA pattern? Can someone else copy it? If you store it on a disk and someone steals that disk and gives it to a third person, can that third person copy your DNA pattern and use it to clone you?

3) Who are you? Questions of the soul aside, most people would say that you are your body. But what does that mean? Are you a collection of cells? Cells die and new cells are born. Most of the cells in your body were not there 10 years ago. Now, you can argue that neural cells do not get replaced and that you are your nervous system. But neurons replace molecules all the time. DNA repairs itself with new molecules all the time. If parts of you are continuously being replaced, why are you still you?

What about your memories, your consciousness, your self-awareness? Where does that come from? Again, questions of the soul aside, most people would say that your consciousness comes from the pattern of neural interconnections in your brain. Notice that I said pattern. It is not the neurons themselves, but how they are interconnected. You could replace the neurons one by one with new neurons, or artificial functional equivalents, and you would still be you. The essence of what is you is not the neurons themselves, but how they are interconnected. You are, at the heart of the matter, a pattern.

While I doubt this is possible, suppose we develop the technology of being able to upload our consciousness into a computer and download it into a new, cloned body. Now, there are all kinds of philosophy of mind identity questions that this brings up, but I don’t want to focus on those kinds of issues right now. Rather, I want to posit, if your consciousness is stored in a computer, and someone gives a copy to a third party, should the third party be allowed to make copies?

You are not just your body. You are a pattern expressed through your body. You are pattern that is continuously evolving, by mixing your current labor with the previous version of yourself. Do you own yourself? I hope you say yes. To deny intellectual property is to deny self-ownership.

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I know that this is long, but

I know that this is long, but I truly appreciate anyone who offers me criticism. I'm new to delving into the IP argument.

​I like the idea of patterns as far as it relates to IP. The argument against IP seems to draw its conclusion by a ruductio ad absurdum: if one can own (copyright) a large conglomeration of words which are in a specific pattern then why are just two words which are in a specific pattern not "ownable" just the same? Can the phrase "intellectual property" itself be copyrighted? Concerning ideas, the place to draw the line between what is and what is not ownable, say the opponents of IP, is completely arbitrary so then there should be no IP at all.

​I think that maybe a line could be found. Two words, like the phrase "intellectual property" can, in theory, be "owned". The question to ask, though, regarding the pattern formed by the the words "intellectual property", and all other patterns for that matter, is not "can it be owned?", but rather "who is (are) the owner(s)?". If someone comes forth to claim ownership of this two word phrase, then that person should be able to demonstrate his ownership and the nature of it. How could one take ownership of this phrase?

​First it must be recognized that ideas are not free. All ideas require at least one scarce resource--time. You cannot have an idea without the expense of time which that idea (thought) requires. So with every phrase, with every pattern of words, there was a price paid (time) for the recognition of that pattern. As an idea (pattern of thought) spreads amongst people the whole price paid for that idea grows because the total time used for the idea's recognition occupies the time-requiring thought of not just one person, but many. Does the originator of an idea (the homesteader), because he paid the price first, forever and always "own" the idea? The answer is: it is up the originator's actions. The owner can transfer ownership in any number of ways, with no stipulations at all, or with a book's worth of conditions. For the right price he may even decide to renounce his rights to reproduce his own idea. It is important to understand that the right to reproduce an idea is not a characteristic which precludes ownership. Ownership can take on an infinite number of forms.

​If you are reading what I am writing right now, then I am selling you my thoughts. You are paying for my thoughts with your time. I spent time writing this before you took to spending your time reading it. We are exchanging our time in a voluntary trade. (By the way, thanks for your business.) I've sold you this pattern of words, these ideas, these thoughts, with no stipulations. They are now yours just as much as they are mine, but no more so (you're welcome). If I wanted to claim some more exclusive ownership over these ideas I could have stated at the beginning of what I have written "I am the originator of this pattern and I do not grant authority to the reader to reuse this pattern, nor any original part of it, without my permission" or, as a shorter alternative, I could just state "copyright" on top. In fact, I could make any number of stipulations which you agree upon by reading what I have written. I could even create an absurd, though largely unenforceable stipulation, such as "this pattern of words is never to be spoken aloud under any circumstance".

​If I offer what I have written with no stipulations, as is the case, and if the reader then decides to reproduce my ideas with stipulations included, then he does so fraudulently because he is not the originator and can therefore not make such claims legitimately. He does not get ownership claims beyond what I have given him.

​If I have given my ideas away with no copyright, and you, after exchanging your time with mine (again, you are "buying" my idea with your time), decide to reproduce what you have bought from me with a copyright provision included, then there is a conflict.

​It is not that you don't own the idea after reading it, you do. I have granted ownership to you with no stipulations, but don't forget that I am still an owner of the idea too. Seeing as though we are both owners, if you were able to put a copyright on this pattern and I continue to offer the same pattern without a copyright stipulation, then the exact same idea, an identical pattern, would be both copyrighted and not-copyrighted at the same time. Such a circumstance is not logical; it is a major contradiction; red cannot also be blue. So which is it? If one owner claims copyright and the other does not, then which claim rules? The claim of the originator of course, because even if you give out my idea under the fraud that it is copyrighted, the idea, as far as it is owned by me, the originator, remains without a copyright. A new person who witnesses the idea as it is represented by the copyrighted fraud, even if this new person, in turn, reproduces the exact same idea in violation of the fraudulent copyright, cannot be held liable for the reproduction because the exact same idea exists elsewhere without copyright.

Can a thing be non-scarce if

Can a thing be non-scarce if it requires the use of a scarce resource?

If you believe Intellectual Property is valid...

Then stop using the term Intellectual Property, you are infringing on the Intellectual Property rights of the guy who created the term Intellectual Property.

Actually, stop using the English language altogether, you didn't invent any of those words, so you are infringing on the IP rights of those who did.

Check out the Laissez-Faire Journal at LFJournal.com

"The State is a gang of thieves writ large." - Murray Rothbard

Did you read my article?

Do you remember the English language example I used?

"All our words are but crumbs that fall down from the feast of the mind." - Khalil Gibran
"The Perfect Man has no self; the Holy Man has no merit; the Sage has no fame." - Chuang Tzu

Yes, I read it.

The term Intellectual Property is a "pattern" of words, albeit only 2 words.

Phrases in the English Language are "patterns" of words.

Speaking a sentence in English is making a "pattern" of words.

And what does it matter whether the words are in "patterns" or not?

Use of words whether in "patterns" or alone, does not exclude others from using them, and they are not scarce as they can be consumed inexhaustibly.

Ideas can be used by multiple people at the same time without excluding others from using them.

In economics, a good is considered either rivalrous (rival) or nonrival. A rival (subtractable) good is a good whose consumption by one consumer prevents simultaneous consumption by other consumers.

Use of Ideas do not prevent others from simultaneously using them.

We can both posses the same idea simultaneously without preventing the other from doing so.

As for scarcity, Ideas are not scarce, because they are an inexhaustible resource.

Scarcity means an inadequate supply to meet demand.

An idea has an infinite supply, even if every single person on the face of the Earth were to use it simultaneously, there would never be a higher demand than there is a supply of the idea, it cannot be exhausted.

It is not destroyed by its consumption, in fact it is duplicated.

Thus, as an idea is not a scarce good, and use of an idea does not exclude it's use by others, it is not property.

"Ideas – recipes, formulas, statements, arguments, algorithms, theorems, melodies, patterns, rhythms, images, etc. – are certainly goods (insofar as they are good, not bad, recipes, etc.), but they are not scarce goods. Once thought and expressed, they are free, inexhaustible goods. I whistle a melody or write down a poem, you hear the melody or read the poem and reproduce or copy it. In doing so you have not taken anything away from me. I can whistle and write as before. In fact, the entire world can copy me and yet nothing is taken from me. (If I didn’t want anyone to copy my ideas I only have to keep them to myself and never express them." - Hans-Hermann Hoppe

Check out the Laissez-Faire Journal at LFJournal.com

"The State is a gang of thieves writ large." - Murray Rothbard

have you been following the discussion at EPJ?

First, the phrase "intellectual property" is obviously not scarce.

We have been debating the scarcity and rivalrousness of ideas. I think the pro-IP crowd has sufficiently demonstrated that at least some ideas are scarce, and that at least some ideas are rivalrous. For example, bitcoins are both scarce and rivalrous. If you continue to insist on these points, you are grinding your wheels in the mud. I believe the discussion now is shifting to what is the most libertarian theory of property? Is it the labor theory of property, as Locke and Rothbard thought, or is the first occupier theory, as Kinsella claims?

Hoppe is wrong on this, just as he is wrong about his argumentation ethic. He is a great thinker and has contributed a great deal to Austrian economics. But he has also made mistakes.

"All our words are but crumbs that fall down from the feast of the mind." - Khalil Gibran
"The Perfect Man has no self; the Holy Man has no merit; the Sage has no fame." - Chuang Tzu

I think you are confused about property theory.

"I believe the discussion now is shifting to what is the most libertarian theory of property? Is it the labor theory of property, as Locke and Rothbard thought, or is the first occupier theory, as Kinsella claims?"

Locke, Kinsella, and Rothbard all believe in the Homestead Principle, which states that the first person to make use of unowned resources is the rightful owner.

For example: A farmer homesteads previously unowned land when he becomes the first person to plow it and plant it, and gains rightful ownership of it.

There is no conflict here.


Check out the Laissez-Faire Journal at LFJournal.com

"The State is a gang of thieves writ large." - Murray Rothbard

please read up on this a little more

Locke and Rothbard hold to the Labor Theory of Property, which takes the homesteading principle that you come to own something by mixing your labor with an unclaimed resource.

Kinsella holds to the First Occupier Theory of Property, which takes the homesteading principle that you come to own something by becoming the first occupier of an unclaimed resource. Why does he do this? Because he claims that you don't own your labor, because labor is allegedly unownable. By the way, this ignores the fact that an act of occupying is necessarily an act of labor. But why does he say you can't own your labor? Because if you accept the fact that you own your labor, you get intellectual property. Well, if you don't own your labor, who does?

"All our words are but crumbs that fall down from the feast of the mind." - Khalil Gibran
"The Perfect Man has no self; the Holy Man has no merit; the Sage has no fame." - Chuang Tzu

Would you mind providing a link?

I've never heard Kinsella claim that making first use of a resource does not equal homesteading.

Check out the Laissez-Faire Journal at LFJournal.com

"The State is a gang of thieves writ large." - Murray Rothbard


I love the depth of your arguments: "My guy us right. Your guy is wrong."

Way to go Grog.

Let me clarify all this for you.

It's as simple as this.

If you need a state, you're wrong.

If you can do it in a free society, you're ok.

If you need a gun to make us, third parties, who have nothing at all to do with the transaction, to pay to protect what you think is your property, you're a thief.

If you can create a scenario where your ideas are somehow protected at your own cost or those of your customers.. fine.

When you fail do not ask us to fund your posse to put some shmoe in a cage, because your ideas went superabundant.


End of line.

There is not now, nor has

There is not now, nor has there ever been anything approaching a "free society". The very term is an oxymoron. Show me a "society" and I'll show you a controlling body of people who make and enforce laws.

Absurd, and factually and historically wrong.

Society is free everywhere there is not a gun and a badge.

When you go camping or to a burn or sailing you're free until some coast guard cutter shows up.

People do these things all the time with no ill effects, in fact seek out these situations. People don't all of a sudden break out Guy Fawkes masks and start throwing bombs.

(I should mention tangentially while I don't approve of those actions, but insomuch as they exist they exist in response to coercion.)

As well in the first century in America most of the west had no state to 'help' them. Society grew, amassed capital, then the state had cause to take over. This is all of history. Until societies have something to steal, there is no profit for gangs. This is why in history you don't find states when people can subsist off the land easily and didn't have to store capital.

At least.. until statists invented the manacle and collar.

The main point is merely

The main point is merely this: At almost no time in recorded history has there existed sizeable numbers of people without laws of one kind or another. On a one-to-one basis, people seldom act in a fashion where the laws are mentioned or called upon. Common sense applies. However, the laws are always there. Systems for judgment and enforcement remain. Human beings chafe at laws that restrain us, but demand them when we are disadvantaged or harmed. Is it any wonder there exist so many insane regulations and laws since laws are the result of almost nothing but conflicting self-interests?


No one is calling for the state to protect IP. Please stop mis-characterizing the pro-IP position. We are arguing whether private law would recognize the validity of IP.

"All our words are but crumbs that fall down from the feast of the mind." - Khalil Gibran
"The Perfect Man has no self; the Holy Man has no merit; the Sage has no fame." - Chuang Tzu

Quite so. The problem is we

Quite so.

The problem is we are often mixing non-statutory IP arguments with statist IP arguments, and it's important that people arguing for IP be clear on which they are arguing.

When they don't, there tends to be an assumption that the pro-IP person may harbor the idea there should be statutory IP law. This really undermines any useful discussion.

In the context of people who don't want a socialized system of IP, I think it invokes more passion than it should. In a stateless society certainly we will discover what people think about IP by their actions.

My strong suspicion is that where consensual arrangements to protect IP are possible, ie costs born only by the buyer and seller, there will in fact be systems to protect some IP where the cost to do so is less than the profit for doing so.

ChristianAnarchist's picture

"Contract" requires more than "implied" consent...

The very definition of "contract" requires full disclosure, meeting of minds, and competence. Show that these conditions are met and I believe you can claim "IP"...

Beware the cult of "government"...

a contract requires four things

1. Offer and Acceptance
2. Exchange of consideration
3. Capacity
4. Legality

"All our words are but crumbs that fall down from the feast of the mind." - Khalil Gibran
"The Perfect Man has no self; the Holy Man has no merit; the Sage has no fame." - Chuang Tzu

Rothbard Supports the State?

A made a post about this here: http://www.dailypaul.com/280756/rothbard-supports-the-state

Here is the post as I think it is relevant to this thread and would be curious to hear people's responses.


There has been a lot of discussion regarding the IP “debate” between Wenzel and Kinsella. One of the main arguments on the pro IP side has been that Rothbard supported IP in its current form.

I cant understand how anyone who has actually read Rothbard can take this position seriously. I recently read Rothbard’s “for a new liberty” which outlines his entire philosophy for a free society. It is entirely anti-state. His whole outlook is how to create a world without any state at all.

It seems completely unreasonable to take his position in ethics of liberty regarding what he labels copyright in a completely stateless free market based on contract law and turn that into support for a gigantic state enforced patent and copyright system based on authoritarianism.

Does anyone seriously believe Rothbard would support modern state-based IP with all the police state and bureaucracy that would be required to enforce it?

the arguments stand on their own

It just so happens that Rothbard was right.

But I don't understand, who on the pro-IP side is calling for a state? We are all anarchists, just like Rothbard. Nobody is saying that you need the state to enforce IP. We are all in favor of private law that rules on contract disputes and private law enforcement that enforces the decisions made through the private law.

The question at hand is whether private law would recognize IP. This question boils down to whether private law would recognize restrictive covenants on digital products that prevent a buyer from copying the product. I say yes.

"All our words are but crumbs that fall down from the feast of the mind." - Khalil Gibran
"The Perfect Man has no self; the Holy Man has no merit; the Sage has no fame." - Chuang Tzu


Is what drove me crazy during the interview when Kinsella would constantly refer to the evils of the STATE's IP....clearly Rothbard, Wenzel and anyone else supporting free market IP is not advocating a State, or State controlled IP, but rather in the context of private law.

Kinsella would constantly say "BOB...but CISPA, SOPA, PIPA"....

*Advancing the Ideas of Liberty Daily*

The argument that wenzel was

The argument that wenzel was making, as I heard it, in the "debate" was for modern state enforced IP. The practical argument in society right now is weather IP should exist in its current form. We have sopa and pipa and cispa and all sorts of police state legislation coming down to shut down the internet all based on IP. To sit around and argue about how IP should be in a future libertarian world is of little relevance. When we, hopefully, evenutally have a free market without state intervention, the market will best sort out how to handle these things. We dont have to figure it all out now. We need to be focusing on helping people to understand why IP in its current for is so terrible. Otherwise our free internet will not be around for much longer and we cannot have these debates because free speech will be destroyed online.

in any case...

private law would recognize contracts. But how could such a thing be enforced against parties not subject to the contract and would we want it enforced? Lets say party A signs a contract with party B to transmit to them digital content X under the condition that they can use the content but not copy and distribute it. But what if C observes the content and replicates it on their own? They are not under any contract. They have physical resources of their own which they have mixed their labor, guided by thoughts in their head. Will they be restricted in their use of information based on a contract they were not party to?

That is NOT the argument

That is not the argument Wenzel is making.

See his post today which attempts to clarify this.


*Advancing the Ideas of Liberty Daily*

Two interesting things...

The first is that Rothbard got this wrong.

The second is the example about a person being partially a pattern.

To the extent that I am a pattern---the portion of me that is simply a pattern---I do not own myself. If someone else can take raw materials and create a "copy" of me, I don't own it, and I don't have any desire to own it.

Of course, I view it as highly unlikely that people would develop such a thing as the technology to copy the consciousness of a person outside the framework of an artificial and immoral system of coercion like the one which has produced nuclear bombs and genetic engineering, i.e., the one that we have involving intellectual property, copyright, patents, taxes, wars, etc.. If we could simply keep control of our own matter/cells/nuclei, we would not have to worry about people doing such counterproductive and destructive things with other matter.

If garbage is not scarce...

It's funny how these monopoly-apologists so slyly finesse their way into constricting your rights. And you fall for it.

If garbage is not scarce, then neither is any arrangement of that garbage.

The only way any "scarce" arrangement of non-scarce goods (or patterns) STAYS scarce is through the creation of a government-protected monopoly.

This argument is over.

the argument is NOT over :)

"If garbage is not scarce, then neither is any arrangement of that garbage."

Your argument here seems to be that you cannot get a scarce good out of a non-scarce good. That's not true. Is air scarce? If I fix nitrogen from the air to make fertilizer, is the fertilizer scarce? Is saltwater scarce? If I extract salt from the saltwater, is the salt scarce?

"The only way any "scarce" arrangement of non-scarce goods (or patterns) STAYS scarce is through the creation of a government-protected monopoly."

That's also not true. If I write a novel (a scarce arrangement of non-scarce words), I can simply not release any copies of it. It can forever remain scarce. Or I can make copies for 10 trusted friends, who I know will not release any copies. Thus, it remains scarce. Or I can sell it with a restrictive covenant (copyright), which does not give any buyer the right to copy it.

Now, if you are opposed to the concept of restrictive covenants, that's a different argument. The question is, would a private law system recognize the validity of restrictive covenants? I say yes.

"All our words are but crumbs that fall down from the feast of the mind." - Khalil Gibran
"The Perfect Man has no self; the Holy Man has no merit; the Sage has no fame." - Chuang Tzu

Can you control other people's labor?

Yes, it would require labor to make the scarce good become non-scarce, but the question is whether you have the right to stop others from using their own labor to turn non-scarce goods into the same scarce good that you did.

As for your novel, once your recombination of words enters anyone else's head, its scarcity is no longer under your control - trusted friend or not - unless you get a monopolistic force involved. Until that point, anyone who isn't you could perfectly argue that your novel doesn't actually exist... and you can't prove that it does until someone else reads it.

in some situations, yes

If I start putting a garden in your yard without your permission, can you stop my gardening labor?

"All our words are but crumbs that fall down from the feast of the mind." - Khalil Gibran
"The Perfect Man has no self; the Holy Man has no merit; the Sage has no fame." - Chuang Tzu

That's not labor.

That's not labor. That's an invasion of my (scarce) resources. That's the difference between physical property and intellectual property. One is actually scarce. The other is made artificially scarce through monopolistic laws.

That's right. Limited

That's right. Limited monopolies that benefit the individual or companies that hold them. IP is property, just as land is property and both require legal systems and enforcement mechanisms for validity. As much as the idealistic no-state scenario appeals, I know better (thanks to real world exposure to thieves, liars and predatory organizations) and understand there are limits to freedom because of human behavior. Self-interest is a universal truth, therefore self-protection demands the creation of a "state"...an unhappy reality of life.