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Mondays with Murray: Did Rothbard Support IP?

In the past week there has been heated debate within the Libertarian Internet Geek Community – of which I proudly consider myself a member – over the issue of intellectual property. This was sparked by the recent debate / shouting match between Stephan Kinsella on the anti-IP side and Robert Wenzel on the pro-IP.

I’ve been developing my thoughts on this debate which I’ll put together later in the week, but for now it seems appropriate to use this latest rendition of Mondays with Murray to examine one of the more contentious topics of the Kinsella-Wenzel showdown, which was Murray Rothbard’s position on intellectual property.

Rothbard makes a clear distinction between copyright and patent, and it’s an important one to keep in mind when defining the framework of the libertarian debate on intellectual property.

From Chapter 10 of Man, Economy and State:

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 together. Most have considered both as grants of exclusive monopoly 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 mechanical inventions, the other as conferring an exclusive right in the field of literary creations. 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.”Copyrights, in other words, 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. But if the defendant independently arrives at the same creation, the plaintiff has no copyright privilege that could prevent the defendant from using and selling his product.
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Rothbard's views on copyright in 1983 as opposed to 1962:

“…Finally, there is the almost incredible harassment of VCR owners. If I buy a VCR and a blank tape, I should be able to tape a movie or other program off my own TV set. If the TV or movie people don’t like it, they should jolly well have to lump it. It is grotesque that movie producers might get the Supreme Court to agree to outlaw use of the VCR. Worse yet is that the movie producers are harassing poor SONY, who only manufactures and doesn’t use VCRs. Obviously, SONY has the deep pockets to enjoin and sue, which most home owners do not. Obviously, too, the government would have a great deal of difficulty mobilizing an enormous Gestapo, armed to the teeth, to break in on and confiscate or destroy the VCRs in many million American homes. Defend your VCRs to the death, fellow Americans! In practice, then, the movie people are not going to outlaw VCRs. They will just force SONY and the other manufacturers to pay a tax to the movie people, a tax which will be passed on to every VCR buyer. But the unfortunate principle—and the higher cost—might well be enshrined in the books.

The problem in all these cases is not whether “property rights” should or should not be upheld. The problem in each of these cases is: Who should have the property right? The computer hacker to do what he wants with his own computer and his access to the telephone lines, or the other computer owner? The signal sender or the signal receiver in the latter’s own equipment? The VCR owner or movie producers? In all of these cases I believe that the concept of copyright has been illegitimately extended to become invasive, and that the fact that the common law cannot combat these “crimes” is already an indication that they are not crimes at all.

But I am in an odd position here. Of all the people in the libertarian movement, I probably know the least about computer technology. There are few movement people lower tech than myself. And yet among all the computer mavens in the movement, I have seen no discussion of these thorny issues. But it is important to apply libertarian property rights theory, i.e. judgments in various areas on who is a criminal and who is a victim, to advancing technology. So on these matters I still have a relatively open mind. Before the Iron Door closes, I cheerfully invite libertarian theorists and high-tech mavens to submit papers, on any or all sides of this problem, for possible publication in the Libertarian Forum. Is there computer crime? Are VCR and satellite dish owners criminals? Please send in your discussions, and help advance libertarian theory.”

— Murray Rothbard, The Libertarian Forum, 1983.


Check out the Laissez-Faire Journal at LFJournal.com

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

I don't believe

I don't believe this contradicts his view on copyright if that us what you are saying. He discusses how copyright enforcement has become "invasive", but he doesn't seem to denounce , in concept, intellectual property.

Interesting quote though, that is one I haven't seen.

To me this seems like he's more talking about protecting the property of VCR owners and not punishing then for crimes they've yet to commit. I wonder what his view would be of a VCR owner copying movies and selling them
Under the guise if being a legit licensed reseller of movies.

Thanks for sharing!

*Advancing the Ideas of Liberty Daily*

It suggests his views on copyright were evolving...

"If I buy a VCR and a blank tape, I should be able to tape a movie or other program off my own TV set. If the TV or movie people don’t like it, they should jolly well have to lump it."

He is saying that he believes he has the right to copy movies and television programs, and that the copyright holders of movies and television programs don't have the right to prevent him from doing so.

Check out the Laissez-Faire Journal at LFJournal.com

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

Fair point

My views are constantly evolving as well.

Regardless it seems clear that, evolving views along with technological advances not withstanding, Rothard did believe in the concept of "intellectual property."

*Advancing the Ideas of Liberty Daily*

good information

Kinsella mislead regarding Rothbard's views on IP in his book.

I personally

Enjoyed the unfiltered animosity of their debate