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Thoughts on the Great IP Debate

Hi all, I put together my early thoughts on the intellectual property debate going on. Posting them here in the hope of keeping what I'm finding to be one of the most fascinating debates among libertarians going!

by Marc Clair | Lions of Liberty | April 12, 2013

The Libertarian Internet Geek Community, of which I consider myself a card-carrying member, has been embroiled in heated debate over the last few weeks on the subject of intellectual property. This debate was sparked by Robert Wenzel’s challenges on his blog at Economic Policy Journal to what many had presumed was the libertarian consensus on intellectual property. This “consensus” view – the one most associated libertarian patent attorney Stephan Kinsella – is that the very concept of “intellectual property” is fraudulent and a creation of the State, and serves only to stifle freedom and creativity in the marketplace.

This view is so prevalent that until very recently one would be hard pressed to find much opposition to it within the libertarian movement. In fact, we ourselves criticized Ron and Rand Paul’s “Technology Revolution Manifesto” for it’s support of IP.

Kinsella presents this view of intellectual property as a creation of the State; an artificial construct that would not exist in a free market system. I believe this is the main reason for libertarian opposition to the concept of intellectual property – becaise it is framed in the context of the State, and associated with all of the terrible things that the State and crony capitalist firms have done in the name of IP. From the evil censorship laws proposed in CISPA and SOPA to major corporations like Apple using IP laws to shut down competition through “patent trolling”, the State and it’s crony partners in crime have used intellectual property as a cover for all sorts of nasty, anti-liberty maneuvers.

Wenzel however presents a different view of intellectual property. Wenzel holds the view held by Murray Rothbard as we discussed in this week’s edition of our weekly feature, Mondays with Murray. Rothbard essentially believed that intellectual property could have a legitimate function in the market place through the use of copyrights. Copyrights essentially allow the producer of an idea – a song, a book, a formula,etc. - to attach a condition on the sale of that idea that it will not be shared by the purchaser. This is essentially a contract between the seller and buyer about the use of the idea. However, Rothard was opposed to the idea of patents, which attempt to stymie competition by using force to prevent anyone who independently discovers or invents something from using or selling that idea or invention on the market place.

It’s clear the issue isn’t a simple one, and if you’re like me you still haven’t made up your mind on this one. So I will attempt to cut through the clutter and break down what I see as the most important questions that must be sorted out in order for libertarians to form a strong opinion on intellectual property.

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I have posted

A follow up to this post


*Advancing the Ideas of Liberty Daily*


For those who might be interested, I posted a reply on Marc's site to a comment which is at the very beginning (bottom) of this thread. Posted early this morning; might be of interest.

You can't own an idea

Period. No discussion.
As a video game developer, I hear from people all the time, "Oh, I have a great idea for a video game!" Really? you and like thousands of other people! No idea is new under the sun. Ideas, or information, are infinitely reproducible. A thousand monkeys typing on a thousand typewriters will eventually reproduce the works of Shakespeare. Think you credit card is unique? Bah, i could guess that number given a sufficiently fast CPU and some time.

As humans we have this inherent bias. We come up with an idea in our heads, and we think it's unique to us. We think we 'own' it. 15 years before netflix existed, I envisioned a website where I could watch any TV show that had aired in the past. Does that mean netflix owes me money for 'stealing' my idea? NO!

This bias is the root of all 'Intellectual Property' Laws. I for one will never stop developing disruptive technology until such unjust, monopolistic laws are wiped from the record of human history.

Rights are not "given" they are fundamental constants of the universe which prevent large populations of humans from being controlled by a small group of people. - http://jediborg2.blogspot.com

And you don't understand what

And you don't understand what "intellectual property" means as a legal term. It ISN'T about mere IDEAS.

Many thanks for this post and

Many thanks for this post and your entire blog post. (I think I remember reading this blog not long ago on another subject and enjoying how you covered the topic.) I've been interested in this subject lately and listened to the K/W debate. I found it difficult both because I don't use anarchy as my starting place in such discussions and because...well the "debaters" acted like toddlers fighting over a melting pop-sickle.

In an attempt to understand the debate, I'm going to try to apply what I think I understand as the basis of the argument made by folks who are against IP legal protections. (I'm just trying to learn so grains of salt and all that.)

As I understand it, the Austrian delineation of whether a right to private property should be granted/enforced by government or private enforcement rests on whether that property is scarce. The scarcity label is bestowed for things that are both not available to anyone, anytime and to things that are diminished as used by more people. It also seem to be a given that the label is used in general, common circumstances, not for outliers. So we would not call "air" scarce, despite the fact that I could be diving at 120 feet with a buddy, whose regulator fails, turning the air in my tank into a thing not available to everyone in the circumstance and quite rivalrous -- one of us may well not make it back to the surface where "air" is not scarce.

So, I'm left contending with a foundational definition of scarcity that assumes a general, common circumstance. Not so foundational -- I'm thinking. It doesn't work at the edges; it's not a hold-fast definition; it's conditional.

I get that conditional is squish and we libertarians bend over backward to lick our privates to avoid them. Alas, that's where we're at in this debate.

The air in my tank at 120 feet below is scarce and rivalrous. It's a firm, Austrian property right.

I'm only going to proceed with my thought experiment for copyright as it's what I deal with in my work. So certainly the words I use to create a novel are available to everyone, anytime. The raw materials are not scarce. However being as an average novel has between 80,000 and 120,000 words, my particular arrangement of those common words is highly scarce; a million monkeys typing for a billions years won't produce my novel. The product I produce is more rare than land or a car or a chair. The marketplace I sell to values it, as evidence by my publisher's six-figure check. (The author's marketplace is not readers, but publishers.) So my novel meets one of the two criteria for being labeled scarce and justifying legal protection.

Using my product is in no way rivalrous. If you read one of my novels, it does not diminish the ability of anyone else to read my novel (given mass printings and/or widely available downloads).

But what if someone plagiarizes my novel and sells it has his own? Does this diminish your ability to read my novel?

I can't see how it doesn't. The plagiarist has put the two of us in a zero sum game. His novel or mine? No reader is going to read both. You read his plagiarism of my novel and you won't read mine. And vise versa. Mr. Plagiarist has made it so that my output is diminished as more people read his version.

Ah, but you'll argue that the idea and arrangement of these 100,000 words that compose my/his novel are not diminished for the reader. A million readers can read and hold the story in their heads simultaneously. But a bunch of those readers will have been misled. They'll love Mr. P's book and be eagerly awaiting his next. They won't be looking for mine. Reader's utility in my storytelling ability, my patterns of string words together is diminished as the cheater's work is consumed by more people.

Anyway, that's my attempt to reason from my thinking, and I'm looking for folks to challenge me here and poke holes as I really want to understand this stuff.

Thanks wishfulthinker

Thanks for reading and for your thoughtful insights. Your thoughts on this echo a lot of mine as I work my way through this stuff.

*Advancing the Ideas of Liberty Daily*

Also, I meant to add to the

Also, I meant to add to the discussion that IP laws to rely on the wronged party to prosecute. There's not government department of copyright or patent infringement police. A person who thinks they've been infringed has to bring legal action; the government simply provides the court system and the enforcement of judgements. People who lift a patent idea for backyard use, or perform an AC/DC number, or lift a few graph of any book don't get hauled to jail. They have to be selling the work of someone else, not just using it. I can re-copy version of any poem, novel, song I want with absolutely no danger. It is only when I attempt to profit from or subvert the creator's profit that I get in trouble.

And, there are fair-use doctrines in place. You can quote at length from a book-length work as long as you cite me and as long as your use of my work does not serve as a replacement in the marketplace for my work. If you quote from a shorter work, your quote, obviously, has to be shorter to meet the fair-use doctrines.

I'm confused about how anyone gets the idea that if I search the patent database and see, for example, a great idea for a mobile chicken coop, I can't use that for my own backyard. There's no prohibition for me using the idea; only for me selling the idea. As I understand it, patents and copyrights don't protect a unique idea or expression; they protect profiting from it, outside personal benefit, without dealing with the patent/copyright-holder -- at least for a time.

So much of the anti-IP stuff I've read, seems to be confused about this. They seem to think that no one can use an idea if it's been patented or copyrighted. That's obviously untrue practically, and, I think, also untrue legally. Patents are published for a reason. We get to play with them, use them for ourselves and our own research. No one is stopping anyone from building that better patented mouse trap, just from selling it -- for a time. And it's not government doing the preventing; it's a civil suit brought by the patent owner or proxies. Government just supplies the courts and the legal scaffolding folks can go to if they think they've been wronged.

You know, it's possible to be

You know, it's possible to be a Libertarian AND support IP. They are not mutually exclusive concepts. Personally, I believe in minimal government, but I also believe government has to be big enough to defend our rights as enumerated in the Constitution.

Libertarianism is incompatible with IP

No, it's not possible to square libertarian principles with IP. I understand this issue probably better than anyone on the planet and have answered dozens of -- always flimsy or incoherent -- arguments for it. The debate is over. Principles libertarians know this.

As for the original article: the author is wrong to assert that the argument rests on the anti-state case or that this is why it has gained currency. The argument against IP does not rest on being anarchist or even anti-legislation. It simply rests on the assumption that property rights in scarce resources are a good thing. Once you accept this, IP becomes impossible to justify. You cannot have both: property rights in scarce resources and IP. RAther, you can have property rights in scarce resources, but not allocated according to Lockean-libertarian principles (first-appropriation and contract). You have to introduce a new ownership rule to implement any form of IP, one that takes property rights in already-owned scarce resources from the libertarian owner and transfers it to a third party, just like any other socialistic welfare redistribution scheme.

This issue is clear. There is a reason libertarians have flocked to it; once they turned their attention to it, the answer is obvious--to those who are honest and have libertarian principles. And it was seen, very very clearly, long ago: by Benjamin Tucker over a century ago, and then in revived form by Sam Konkin, and Wendy McElroy, and then (partially) by Rothbard, and then by Tom Palmer, and, then, starting in the internet age, 1995-, when the issue gained renewed importance, by the bulk of libertarians: Austrians, anarchists, left-libertarians. Even honest utilitarians should oppose IP but... they don't, making you wonder if they are really utilitarian (reminds of Sowell's Vision of the Anointed: Self-Congratulation as a Basis for Social Policy: the liberals pretend to favor the poor but ignore evidence that their policies are counter productive; same with utilitarians who pretend to favor IP "because" it stimulates net innovation, and who turn their eyes aside when all the evidence points the other way).

I have provided a nearly exhaustive and--I will say, knowledgable *and* coherent, unlike most IP proponents--demolition of every IP argument I hear. This is all at www.c4sif.org. It gets tedious to keep hearing the same old disingenuous and ignorant and crude stuff over and over, as if repetition and volume is the way to truth.

IP is utterly evil. It is completely in opposition to what libertarians stand for. Principled, honest, thoughtful libertarians pretty much all see this. Thank goodness. Too bad it is not yet enough to defeat this abomination.

"It is easier to commit murder than to justify it." –Papinian


> I understand this issue probably
> better than anyone on the planet...

You must be near the top for presenting your ideas in a way that causes people not to listen to you too.

P.S. I'm basically on your side.

I see what you are saying

While I never gasve it much thought, I understand your principle, and I see your point. It's like, if IP was attached to the body, like a hand (IP - third hand, a scarce benefit among humans), then IP would be personal property one would want to "protect", so one can enjoy the "fruit of one's possession", rather than for it to be "enslaved" by anyone for anyreason under the name of "freedom"?

IWO Freedom would only be free to the "paracites", but cist the creator his hand to feed them.

IP means owning other people

See roderick long: owning ideas means owning people http://www.cato-unbound.org/2008/11/19/roderick-long/owning-...

Rothbard made a similar point in his chapter on knowledge and defamation in Ethics of Liberty.

and see http://archive.mises.org/17398/intellectual-property-rights-...

"It is easier to commit murder than to justify it." –Papinian

Utter nonsense.

oh, well

I guess I am not a principled, honest, thoughtful libertarian. I am going to the Kinsella hell! Perhaps I will roast next to Rothbard. We'll have some great conversations, Murray and I, while the Eben Moglen devil stabs us with a pitchfork to speak louder. No whispering allowed in the anti-IP hell. Information wants to be free!

“The welfare of the people in particular has always been the alibi of tyrants.” — Albert Camus

Ed Ucation

You are simply wrong in your arguments--why, I do not know. Stubbornness? mental block? dishonestly? stupidity? I really don't know. But you are advocating an evil, unlibertarian system AND you are using arguments so shoddy that I find it hard to believe that you should not know this--that you are doing it intentionally. Lots of people are confused by this issue and I grok that. These people think and *ask questions* they do not swagger around like a belligerent drunk spouting off things they really know very little about and have not thought through.

"It is easier to commit murder than to justify it." –Papinian

Thanks, Norman. We get it. Your

Thanks, Norman. We get it. Your Sheldon Cooper-esque anti-IP arguments and relentless self-promotion are well-known. Personally, I view you as a failed lawyer (and I have a healthy level of contempt for Texas lawyers in particular).

failed lawyer?

self-promotion? really? failed lawyer? really? of course none of this is relevant to whether IP is justified. And such claims come from little, tiny minds.

"It is easier to commit murder than to justify it." –Papinian

And what about you arguing

And what about you arguing for arbitrary limits on what is property? You argue against personal property rights when you make these deceptive statements.

If I can own physical land, if I can own the products of my own labor, why should I not own the product of my mind in the form of an expression of an idea? No one makes arguments for restricting the flow of ideas. No one credible, anyway. Ideas cannot be contained. The expression of ideas can and should be made commodities for the benefit of property owners. That we have come to the conclusion that these expressions of ideas should be given time limited protection increases competition and commerce.

Your arguments are nonsensical appeals to fear.

Why the insults?

I came to this thread because of your post Velveeta.. and I don't see what "Norman" said that is causing you to have a melt down (you can't debate so you insult). I think Norman is making a great point.

It seems to me, freedom is being able to profit off the fruit of your own possessions, not others profitting off your possessions?

Am I wrong? I'd like to understand your point because you're a bright star here on DP, and while we may not always agree, I do respect you as being more reasonable and rational, even more educated about "what's up on DP", than most.

Selective in our reading, are we?

Did you accidentally "skip over" this gem?

"You are simply wrong in your arguments--why, I do not know. Stubbornness? mental block? dishonestly? stupidity?"

Kinsella is widely known for his pedantic, dismissive and insulting style.

You said: "It seems to me, freedom is being able to profit off the fruit of your own possessions, not others profitting off your possessions?"

Kinsella makes specious arguments and sets arbitrary limits on what is property. He argues against what is logical in a system that respects personal property rights.

Yes, I am selective in my reading

My reading list became too big..

As for Kinsella.. I only read what you were responding to, after all, I already admitted I only went to the thread to see what you had written, attracted by the headline.. and when I read both, I thought Kinsella made a good point, and his attitude was self defense.

Anyways, I don't read Kinsella's posts as much as I read yours, and I read yours because I enjoy them.. and why I found it rather odd that YOU would be upset, as it's not like you.. passionate, but not to a fault.. and this was hitting the fault line in my book.. so yeah.. I was being selective in my reading, and I think as wide as Kinsella's agrument goes, it makes sense.

Maybe the idea.. if IP was worth more than gold.. how free would you want yours? I don't know much about this.. my first thought was Ron Paul and the ronpaul.com issue.. which I have no idea what's going on with that.. but only it seems Ron Paul thinks owning what is his (his name) even if it's shared by many (owners of the www with his name or other Ronald Paul's.

We have had our share of

We have had our share of disagreements and I'm confident we'll have more in the future, but I am certain you are a sweetheart in person and you seem earnest in your convictions, Granger. Have a good evening.

Trying to following the

Trying to following the reasoning here. I'm getting it until here, "You have to introduce a new ownership rule to implement any form of IP, one that takes property rights in already-owned scarce resources from the libertarian owner and transfers it to a third party, just like any other socialistic welfare redistribution scheme."

I don't get how a new IP ownership rule necessarily takes scarce, owned resources from anyone.

For example, when I finish a novel and go to sell it to a publisher, I sell it with the backing of copyright law and my publisher sells it with the backing of copyright law. I don't see how the use of copyright law (the new IP ownership rule) takes any scarce and/or owned resource from anyone else.

Am I misunderstanding the idea on which your argument seems to hing?

IF IP owners were cows

It would be like herding cows from the pastures (no more grazing for you IP owner!) And then they let the sheep out....

Are you for or against

Are you for or against intellectual property? Do you believe your inventions and discoveries should be considered property that you can buy, sell or do nothing with? I ask because your point of view is not clear to me.


I'm for property rights. That said, I believe globalization has made it difficlut to afford because if there's any money in your IP, it's because it's on an international level, so one would need an attorney that cists more than the majority can afford. Also, ideas have a way of coming up in clusters, so there's a race to make claims, and also, like the artist would wound up doing Obama's portrait.. HOPE (what was it GIANT"? anyways.. he was sued by AP who claimed they owned the photograph, (the photographer was not interested in the suit) and though the artist lost his case, "Levi's" and other hired him as artistic director, affording him a better life when he plastered "GIANT" stickers all over LA and beyond..Sheppard Fairy <- name of the artist.

But Sheppard Fairy committed

But Sheppard Fairy committed a blatant copyright violation. If he was a more talented artist, instead of a hack, he would've been able to synthesize an original work of art from several images. He's more of a designer than anything, I suppose.

At any rate, I'm glad to see you support all property rights.

new property rule

Wistfulthinker: I just answered a similar question on Facebook: I'lll paste it here with some more links:

Terry: I mean what Mises means by scarce means--part of the praxeological structure of action. It is rivalrous things. See Hoppe, recent paper in Libertarian Papers (on his site). The case against IP does not "rest" on the scarcity of resources. First, there need be no "anti-IP" case other than observing that the pro-IP argument does not work. The burden is on IP advocates. Second, this issue can be easily seen by simply recognizing that if we are to have property rights in scarce (rivalrous) resources, then systems like patent and copyright undercut these property rights. They are incompatible. It is that simple. see e.g. Intellectual Property Rights as Negative Servitudes.

Terry, let me ask you a simple question. Do you think there should be property rights in scarce resources *such as* your body, your land, your home, your car, your factory, your printing press, your ink, your paper? And do you think that the property allocation rule for determining who owns these things should basically be the Lockean-libertarian ones-- that is: to determine who owns any one of these things, if they are contested by multiple claimants (for example: if the state wants to lock away your body in jail because you smoked pot, and you prefer not to go to jail; if the state wants to take your money and you prefer to keep it; if a squatter claims your house but you want it), we ask who has the better claim to the resource, and our answer is: the guy who had it first (the homesteader) has a better claim over others, *because* he had it first, because he appropriated it--unless he contractually transferred it to someone else, who then has a better claim to it than anyone else (including the homesteader). Can you agree, in general, to this? That we need property rights in such scarce things AND that the first guy or his contractual assignee in title, in general, has a better claim to it than others? If so, you have agreed with me on the IP issue, since IP cannot coexist with this.


Wistful: why don't you think about this and let me know what you think or if you have other questions. And by the way I laid out precisely why IP sets up a new homesteading rule in my 2000 LewRockwell.com article In Defense of Napster and Against the Second Homesteading Rule. I think my position is excruciatingly clear and explicit (and very persuasive and easy to understand).

"It is easier to commit murder than to justify it." –Papinian

Then why

Then why did you continuously return to the argument of "but the State is evil!" Do I have to go back and count how many times you did this? This is a total straw man. You should refrain from using this argument if it is "not the issue", which I agree it isn't.

Stephan you should be thrilled, the continuance of this "unprincipled" debate should be welcomed by you. I will be giving your published works a thorough read in order to help form my views. Isn't that what you want?

It is absurd to say "the debate is over", especially when so many people are newly learning about libertarianism.

And if Wenzel is full of crap, you should be confident that your views will continue to win out. But blanket calling those that even attempt to participate in the debate as "unprincipled" while screaming about the State isn't going to win people over.

*Advancing the Ideas of Liberty Daily*

because the state is evil?

"Then why did you continuously return to the argument of "but the State is evil!""

Because it is, and this is an independent argument against IP. Aimed mostly at the anarchist pro-IP people.

"Do I have to go back and count how many times you did this? This is a total straw man. You should refrain from using this argument if it is "not the issue", which I agree it isn't."

It is one of many arguments against your flawed position. I cant help if it there are eleventy ways you are wrong.

"Stephan you should be thrilled, the continuance of this "unprincipled" debate should be welcomed by you. I will be giving your published works a thorough read in order to help form my views. Isn't that what you want?"

I want IP to be abolished.

"It is absurd to say "the debate is over", especially when so many people are newly learning about libertarianism."

The debate is not over but the case is won.

"And if Wenzel is full of crap,"

No "if" about it. Have you heard him?

" you should be confident that your views will continue to win out."

That doesn't follow at all. Sometimes evil views win out. Ask Jews about to be killed in the concentration camp. Ask guys rotting in jail now for drug or tax crimes. As blacks during slavery.

" But blanket calling those that even attempt to participate in the debate as "unprincipled" while screaming about the State isn't going to win people over."

This is a tactical point. How does this prove IP is justified?

"It is easier to commit murder than to justify it." –Papinian