Saturday, April 6, 2013

IP: My Last Word (well, at least for now…)

What an interesting week.  Thanks to Robert Wenzel and Stephan Kinsella, there has been significant dialogue regarding intellectual property within the framework of libertarian thought.

I have done my share of participating in this discussion.  Mostly, I have done my share of reading.  The comments by the multitudes have provided a great opportunity – the division of (intellectual) labor has proven its worth.  Reading these hundreds of comments at EPJ (and the handful here) has helped me to focus my thoughts on this subject.

I began, what seems like long ago, in a simple place – looking for an understanding regarding enforcement.  For the pro-IP libertarian, what level of state enforcement is envisioned?  I could imagine a minarchist accepting government involvement here, as this would be viewed as protection of property – something most minarchists would find as falling within acceptable government function.  This wouldn’t work for me; however I could envision a variety of possibilities for private means of enforcement: contract, license, even simple statements printed on the protected product.  For the anti-IP libertarian, what would be the objection of attempts at private means of enforcement?

I came to understand that my simple place came inherently with an assumption – that an idea is property that can be owned.  I needed to develop a foundation – for my question to have relevance, it is necessary that I come to some conclusion regarding the possibility that an idea can be owned: is it property?  I use the term “idea” as shorthand for any product from the brain: a design, a formula, a written piece, etc.

I had to put into concrete terms what I meant by “own.”  For my own clarification, I have often defined it as: control, use, and disposition.  How could I apply this to an idea?

Coca-Cola (the drink): what of the formula?  What does it mean that Coke (the company) “owns” this formula?  Is it appropriate to suggest, as the anti-IP side does, that Coke loses none of its property if the formula is publicly known?  After all, Coke can still produce the beverage – they have not been prohibited from doing so solely by the fact that others can also produce the same beverage.  Coke still “owns” the formula.

To explore this further, I had to explore my view on the possibility of an idea as property.  The concept of property is reasonably easy to apply to physical goods – the product of man’s muscle and sweat applied to the natural world.  As I considered this, I thought – why doesn’t this also apply to the product of man’s brain?

The brain is one of only two things that differentiate man from all other animals on earth (the other being the soul, for those who walk this path.  I will ignore bringing products of the soul to this discussion, as it isn’t applicable and I wouldn’t know where to begin anyway). 

How can it be that the product of the one thing that makes man different from other animals cannot be classified as property?  I conclude that such products must be classified as property; else the value of man’s brain relative to the other animals is rendered worthless. 

The product of man’s most significant attribute, if not owned by the producer, becomes community property.  (Some on the anti-IP side say that an idea cannot be owned by anyone.  But everything is owned by some entity.)  Man’s brain must exist in a communist world if I carry the anti-IP argument to what I see as its ultimate conclusion.  I am sure the anti-IP libertarians do not see it this way – especially out of respect to the unparalleled contributions to libertarian thought of Hans-Hermann Hoppe (who, apparently, is sympathetic to the anti-IP view), I am hesitant in this conclusion.  Nonetheless, it is how I see it – and it isn’t the first time I have come to a conclusion different from one held by libertarian and Austrian titans.

What if the formula finds its way into the public sphere, even by relatively innocent means?  The anti-IP position is that Coke has lost nothing – the company can still produce the beverage.

I suggest that what Coke owns is more than the formula.  Coke has the right to the control, use, and disposition of the formula.  Coke owns the sole proprietary right to the formula.  The formula is uniquely Coke’s, just as a cow uniquely belongs to a farmer.  A sole proprietary right is no more divisible for this formula than it is for a cow.  Just as a farmer has a monopoly right to a specific cow, Coke can have a monopoly right to a specific formula.

What of independent discovery?  It seems to me that independent discovery would be a legitimate method by a third party of gaining the formula; how this might develop regarding the various types of IP is far beyond the scope I intend to cover here.

This leads me to enforcement.  I can now return to my original (and, now I recognize, inappropriate) starting point.  As I conclude IP is property that is subject to being owned, I can accept any private means of enforcement consistent with the NAP.  Just as physical property can be defended, so can intellectual property.

I do not speak to the practicality of enforcement; however the fact that enforcement might prove impractical (for example, for anything that can be digitized and disseminated via the internet) does not eliminate the possibility and the right of enforcement.

So this is where I am.  What an intellectually tiring week, yet so many others did much more to contribute than did I.  I thank Wenzel and Kinsella.  I especially thank those who provided the myriad of comments – what a wonderful method to flush out ideas and to weigh arguments.

I do not pretend this is a fully researched conclusion.  I have not read a dozen theories regarding what is property, or what it means when we consider something is “owned.”  I am satisfied for now with my conclusions. 

I also do not speak to the utility of IP, one way or the other.  I have previously written on the explosion in learning in 19th century Germany (the region), because copyright was not well-developed.  This explosion of learning turned the region from agricultural to industrial in a very short time – going from well behind England in this regard to virtually equaling it. The utility is not my consideration.  The justice in the protection of private property is.

In summary: an idea is property – the result of man applying his brain to the physical world, just as physical property is the result of man applying his sweat to the physical world; the creator of the idea has just as much right to control its use as does the creator of physical property.  Enforcement, solely along principles of the NAP, is perfectly acceptable.  In other words, intellectual property can be defended just as physical property is. This can include force (of course, not state force) in defense.


  1. bionic - I read several of your posts there and thought they were on point. But that's a tough crowd. The AIPers are like the Agents in the Matrix except they dodge logic bullets.

    I'll just say here that the issue completely goes away in plenarchy. As a voluntary state, all citizens agree to the arrangement upon signing the citizen contract.

    I didn't want to confuse things at EPJ though so I didn't bring it up but I was hoping for more debate on the efficacy of IP itself - not the distraction of state force. Coercion by government is so pervasive that singling out IP seems like a complete distraction.

    Maybe coercion is the only real objection? I've read Kinsella and other AIPer arguments and they cite issues like loss of competition, less innovation, etc.

    I find those issues worth discussing and I honestly want to work through them. I'm 98% confident I want IP in plenarchy for many reasons but I'm open to eliminating it if a stronger case can be made. Another day perhaps.

    The device I propose for putting all IP under one instrument in plenarchy is the public use license. The PUL is to replace patents, copyrights, trademarks, etc. It allows anyone to write their own IP license within a fixed set of rules.

    The PUL is to have a term limit (I've made it 33 years but less might be better). Be passive in that the IP owner is responsible for bringing accusations of infringement to the courts. There is to be no proactive enforcement by the state.

    It is to be the responsibility of the IP license holder to have performed due diligence to ensure the PUL is valid upon filing.

    For patent IP, the PUL subject matter must be novel, nonobvious, and perform a function. For a design patent, same but no function requirement. Copyrights and trademarks like what we have. Other types of IP might emerge since the PUL is open ended. Does that sound scary to you?

    The PUL owner would not be permitted to obligate the IP user. In other words, the PUL scope cannot extend beyond the IP itself. The PUL would simply be filed with the state authority as a matter of public record and not be subject to an examination process (no PTO) other than for filing standards.

    The PUL holder must then be prepared to defend the PUL in court if it is challenged or the IP owner makes a challenge.

    Just some thoughts on how I think IP can be handled equitably in the voluntary state of plenarchy.

    1. plenarchist, I thought you did some heavy lifting in the discussion at EPJ.

      “Maybe coercion is the only real objection?”

      First, it seems some cannot grasp the difference in concept of authoritarian / government coercion as opposed to private coercion in defense of property or contract.

      However, another objection that comes up regularly is the idea that the developer of the IP is not deprived of the use of the IP no matter how many copies are made and used by others. I have come to conclude that this is faulty, as I believe part of what is owned by the developer is the sole proprietary use of the IP (as I suggest with my example of the formula for Coca-Cola).

      I am a simpleton. Why is it legitimate for man to describe as “property” that which he creates with his muscle, but not with his brain? I am sure there is some fancy answer to this, however it strikes me that any answer will only serve to either a) justify communism of ideas, or b) move man to the station of other animals – in other words, neuter the full value of the one attribute that distinguishes man from the rest of the animal kingdom.

      “I've read Kinsella and other AIPer arguments and they cite issues like loss of competition, less innovation, etc.”

      These utilitarian arguments might be correct, they might not; for example, see here:

      There are countless thousands who blog away for free (I am one), only hoping that what is written somewhat influences the dialogue - and happy whenever something written is picked up at another site! This should be up to the individual. This doesn’t mean it must be true for every blogger. For me, the right approach does not depend on utilitarian arguments.

      I found one thing of interest at the EPJ dialogue, upon which I have not commented there: the example of Rothbard and the VCR. Who has rights to the copied product? Rothbard suggests, and I agree, this is muddled. Quoting Rothbard from the quoted text:

      “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?”

      It seems to me that this is a wonderful example of the market resolving a muddled property rights issue. Individuals taped television shows by the millions. This ended the debate rather quickly.

    2. I'll read your post on copyright. Thanks.

      I had the sense that at EPJ we weren't debating IP really. The debate was more about designed rights (I also call rational rights) versus natural rights.

      Natural rights are so deeply ingrained in the libertarian psyche that the idea of designing rights for some desired outcome is alien and suspect. And yet, this should be the basis of all rights in my opinion.

      After reading a fair amount of Herbert Spencer, I've decided he's my man. Spencer was utilitarian. His thinking on social evolution led him to the principle of equal freedom. I want to design "rights" or laws that will hopefully promote that end.

      So for me the standard for any law, does it create greater equal freedom or less? And that's my dilemma with respect to IP that I have yet to fully sort out. It's involved but I see from the EPJ exchange that there is little to be gained from intellectual mud wrestling. I'll refrain from it because it takes too much time but it can be fun.

      Regarding the VCR example, I think this shows how common sense needs to enter the picture. The injury is caused by the distributor and not the end user with little to be gained targeting them.

      In my view Sony was the violator by manufacturing the device to copy the IP. In plenarchy, if the matter is civil I intend to add a requirement that the parties mediate first before taking it to court for arbitration.

      The IP owners and Sony would go through mediation (unless they intended to accuse Sony of a criminal act). If mediation fails, then go to court. The court could issue a cease and desist order to Sony and might make them pay damages.

      But the mediation step is critically important to me. It is here that the two parties would likely resolve the dispute (to avoid the court cost and risk) with a compromise like the VCR is still manufactured but with limits on copying. Maybe only one copy per movie tape per VCR or some other compromise. At least that would be my hope.

      Of course, our problem with the state policing IP (as the movie industry lobbies for today) is that it will gladly do so and use it as a pretext for other mischief and abuse (as it has with the drug war).

  2. Just a couple of general remarks for you ,BM. First, thanks for your blog posts and comment responses. It is refreshing to see that you have been able to seperate any emotionalism from your discussions. Even though, for now, we most likely diagree on this topic, I am glad to see that you no londer view it as a peripheral concept and now begin to give it serious thought. It is not the certainity of our answers but the quality of the questions asked that is the more important thing( h/t Butler Shaffer). Two specific remarks, please at least take the time to read Kinsella's view of trade secrets and trademarks - I think you will find them of interest - and Hoppe is not apparently sympathetic to the anti-IP view. He is totally, radically AIP - see:
    Best Regards,

    1. STS, thank you for the note.

      We may continue to disagree. I find a fundamental inconsistency in the idea that one can own the product of his muscle but not the product of his mind. In both cases, to own means to have sole proprietary control, use, and disposition. Such sole control can be exchanged or encumbered voluntarily by the owner.

      In Hoppe’s example at the interview, he is focused on copyright, whistling a tune (perhaps the easiest form of IP to attack). Setting aside the fact that there are many types of intellectual property (I have somewhat purposely focused on the formula of Coca-Cola), I also note the following exchange from the interview:

      Daily Bell: We have suggested that if people want to enforce generational copyright that they do so on their own, taking on the expense and attempting through various means to confront copyright violators with their own resources. This would put the onus of enforcement on the pocket book of the individual. Is this a viable solution – to let the market itself decide these issues?

      Dr. Hans-Hermann Hoppe: That would go a long way in the right direction. Better still: more and more courts in more and more countries, especially countries outside the orbit of the US dominated Western government cartel, would make it clear that they don't hear cases of copyright and patent violations any longer and regard such complaints as a ruse of big Western government-connected firms, such as pharmaceutical companies, for instance, to enrich themselves at the expense of other people.


      Hoppe says nothing against the possibility of private enforcement techniques in this. Hence, I return to where I began in this dialogue – what is the proposed means of enforcement for the pro-IP libertarian, and what is justification to disallow such a means for the anti-IP libertarian?

  3. Bionic,

    I attempted to post the remarks below in response to your comment on EPJ, here.

    As per usual, Wenzel never approved it, as it clearly pointed out his shortcoming.

    So I'll leave it here:

    That's funny you'd say such a thing...considering Wenzel will never even give a definition of "intellectual property."

    And there's a reason he won't. It's the same reason in 2 and a half hours of a podcast he wouldn't. The man wouldn't even define his terms because he either simply doesn't have a definition (meaning he hasn't even given it an even rudimentary consideration), or he won't give one because that will just open the flood gates to the whole dismantling of his position.

    Up until now the old man was smart enough to never actually explain his position, and instead just refer everyone to an unwritten book he claimed he would put out. It would explain everything. Just wait for his book. For at least 4 YEARS he said this. (see "Wenzel's lack of a positive argument")

    Now he finally at least agreed to a podcast on the subject, but as anyone who listens can see, he spends virtually no time in that entire 2.5 hours offering a positive case for IP, and instead simply spends the entire time trying to point out errors in Kinsella's writing over a dozen years or so.

    Again there's a reason for this. Wenzie doesn't have a cogent argument in favor of IP. That's why he'll never make one. He'll simply keep appealing to authority, equivocating, begging the question, and quoting other people's work to try and poke holes in it.

    As Kinsella said at the very beginning of the podcast, simply proclaiming that he or anyone else made a factual error does not validate IP. Simply saying "Kinsella got x, y, and z wrong...he's a sloppy writer. Therefore, IP is valid!!!" not an argument. Nor is "Rothbard said so!!" (Despite how much Wenzel seems to think so.)

    Yet you'll see that's precisely what Weezy Wenzie did for the majority of his time on the podcast. "I'mona destwoy you stefawn. No, I will not define my terms, I'm trwyin to destwoy you stefawn!"

    Perhaps you, bionic mosquito could offer a definition of "intellectual property" and then we could continue the discussion from there.

    (Although, we'll have to see if this post even gets approved.)

    1. “Perhaps you, bionic mosquito could offer a definition of "intellectual property" and then we could continue the discussion from there.”

      As I have unashamedly written more than once, I am a simpleton in this discussion.

      How about this: Property that results from original creative thought, as patents, copyright material, and trademarks.

      “(Although, we'll have to see if this post even gets approved.)”

      Other than a mistake because I was unfamiliar with the blogger software, I have only deleted two comments here. One was laced with vulgarity; the other was spam – paragraphs of rambling on subjects having nothing to do with the post. I also am sensitive to personal attacks in any form – of me or others.

      Now I ask you – answer what I wrote. I have seen dozens if not hundreds of anti-IP comments, and have yet to see meaningful responses to what I wrote (whether to me or to others). For ease, I copy my comments here:

      April 10, 2013 at 9:35 PM

      "There is nothing incompatible between real property and intellectual property. They simply both recognize ownership rights and the limits of those rights given the nature of the type of property."

      Well said, and nothing that has been written or said during the entirety of this discussion has demonstrated to me otherwise. The more I have witnessed the dialogue the more convinced I have become of this.

      The product of labor; the product of muscle...why should these be treated differently from a property rights standpoint?

      There is no good answer....

      April 11, 2013 at 9:45 AM

      “…depends on how much time and money you want blow in court rather than inventing, like Eli Whitney.”

      But what does this have to do with my point? Businessmen make decisions every day about what and where they want to invest time and money. The practicality of enforcing intellectual property rights is not an issue for libertarian debate. It is an issue for an individual businessman to decide.

      “Do you not understand that to try and investigate and incacerate breach of IP further than the A and B contract would be so enormously costly that only a State would be nessacary to persue such foolish actions. And foolish it would be if the IP holder wished to pay out of his pocket to procecute everyone who heard or seen his IP - he would be broke - Both in time and money.

      Why is this your concern? So what if a businessman wants to spend his time and money this way? Do you propose a government program that disallows businessmen from making dumb decisions?

      “So, in reality, the current idea of IP can't survive without the state to offload the expense on helpless tax surfs who foot the bill for the "intellectualls" privilages.”

      No, in reality the market would decide which specific items of IP were worth protecting privately and which were not. Why is this such a difficult concept for libertarians / Austrians to grasp?

    2. I am in error in the comment above. It should read:

      The product of the brain; the product of muscle...why should these be treated differently from a property rights standpoint?

      This is my question.

    3. I just first want to be clear that last line about the post possibly not getting published was still part of the comment that I had originally tried to post at EPJ. So as you can see, my suspicions about Wenzel were correct.

      I cannot be sure if it was my nicknames for him (inspired by his nicknames for Kinsella), or if he was genuinely afraid of making public my pointing out that he not only has made no positive case for IP, but has actually avoided doing so for at least 4 years.

      Probably both.

      That being said, I first want to address the definition you alleges that "intellectual property" is "property that results from original creative thought, as patents, copyright material, and trademarks."

      I think it is important to point out that a large part of the whole debate here is the understanding of what even constitutes "property", and more specifically, legitimate property rights. As Kinsella, Hoppe, and so many other libertarian thinkers have argued, the different types of intellectual creativity covered by IP law, (i.e. essentially ideas and patterns) are not ownable property at all.

      However, the definition you gave assumes that one can have rights, as Kinsella said, "arising from some type of intellectual creativity, or that are otherwise related to ideas."

      So we need to recognize that there is a fundamental issue at hand here.

      And you'll notice this is where a great amount of problem came for Wenzel during the podcast, as for a great deal of it he was simply begging the question...assuming that one can have rights in ideas and patterns, when the whole issue being argued is whether or not one can actually have legitimate rights in ideas and patterns.

      In other words he was committing the same fallacy that many Evangelist Christians do when they appeal to the Bible as support for their belief in the Bible...

      “A lot of people wonder how we can trust the Bible. But they need to read First Corinthians 5 where Paul writes…”

      That's essentially what Bob as doing throughout the podcast, which is why Kinsella kept stating how he was "question begging."

      As for your question to me, "The product of the brain; the product of muscle...why should these be treated differently from a property rights standpoint?"... it is actually partially addressed by the understanding I laid out above...namely that the "product of the brain" as you put it, is not ownable property. One may own their brain, but own cannot "own" ideas within it, at least in the legitimate property rights sense.

      Kinsella started to address this issue toward the middle of the podcast, actually.

      But rather than simply rehash what has already been written, I'd like to ask...have you read Kinsella's monograph?

      I think it lays out the case quite well and I believe would greatly aid in your understanding. And it's quite short.

      You can find it an virtually every medium you could want (audio, PDF, HTML, etc.) here.

      I believe if you read it, it will aid not only in your understanding of IP in general, but in the entire argument against IP. It will offer a concise introduction to what exactly IP is, and give a strong grounding in the true nature of property rights.

      I would love to continue a discussion, and I think it would save us a lot of time if you were to read it, as you could then pose specific questions about the position, without me having to essentially re-write the whole thing so as to give you education in the basics and answers to all the major questions.

      (The audio is actually under 2 it's better than 20% shorter than the podcast itself...and you don't have wade through all the high-pitched Wenzel whines, logical fallacies, and circular reasonings.)

      Would you be willing to read it?

    4. If you are attempting to convince me by sending me to Kinsella’s work, it will not be helpful. There are several statements in Kinsella's presentation with which I disagree. I find it difficult to get through these to look for the needle that you suggest is hidden in the haystack.

      The entire subject is not so terribly important to me that I will take time to write a point by point rebuttal. Either Wenzel will do this or he won't. It is his time to spend.

      Offer a simple answer to my simple question and we can continue this dialogue – I do not see that it is answerable, and in the countless posts and comments on this subject over the last two weeks, I have not seen an answer.

      Absent a simple answer, I am not sure what more I can add – there are wonderfully well qualified libertarian thinkers on both sides of this position. I will leave the esoteric stuff to them. In the meantime, I have satisfied myself in my position and to the extent that I care about this topic.

      I am quite satisfied that free markets and contracts applied in a free market environment will sort this out in the future libertarian world. What other conclusion could a libertarian / Austrian reach?

    5. I'm not sure how you got the impression I was "trying to convince you" of anything by reading Kinsella's monograph. I stated quite clearly that I simply thought it would be helpful in aiding your understanding, as you have said multiple times that you're a simpleton on this subject.

      And it sounds like you want a simpleton answer to a question on a subject that is a bit more sophisticated than it seems you care to be educated on.

      That sounds pretty lazy from an intellectual perspective. You admit you don't know enough, yet you expect an answer enough satisfy your admittedly ignorant consciousness.

      Second, I'm not sure where this "needle in a haystack" idea came from either. I suggested no such thing. Again, all I was doing was suggesting a little 80 page monograph (which could be read to you by a professional narrator in under 2 hours) so that you could move beyond being a simpleton and we could have a much more elevated discussion and not have to dwell and dance around basic fundamental concepts.

      And I think you miss my point about Wenzel. My point is that as Kinsella stated quite clearly at the beginning of the debate, rebutting his own arguments does not make a case for IP. Yes, Wenzel seemed to want to spend the entire 2.5 hours "destwoying Stephwan", but (and I'm essentially quoting here), to establish the case for IP, you can't just pick apart things in [Kinsella's] have to have a positive case of property, you need to have a clear and coherent definition of what you mean by "intellectual property", and why you think it's justified, and why you think it's compatible with regular property rights. It will not do to find little mingling things that are misstatements in people's criticisms of IP...even if Kinsella and others are wrong in all of their criticisms of IP, it doesn't mean IP is justified.

      So my point about Wenzel is not whether or not he will ever come out with a "point by point rebuttal" of Kinsella's work. That's entirely irrelevant. (Which is why I wouldn't be surprised if he did it.) What I know he won't do is come out with a clear positive case for IP, explaining why it is justified and why it is compatible with regular property rights.

      That being said, I believe the issue here is simple, and again, I think Kinsella laid it out quite clearly in his introduction in the debate. (Honestly just listen from 1:02-9:02). The issue is that we all agree with a free market and a system of private property rights in scarce resources. If we can agree on that, then all that needs to be shown is that this idea of "intellectual property rights" sets up some kind of "right" that is incompatible with what we all already agree with... (continued)

    6. Now, as to your question, and the topic of this post here titled "IP: My Last Word", I think it is some shortcomings in your definitions that have led you to flawed conclusions.

      First you define "ownership" as simply "control, use, and disposition." You are forgetting one crucial aspect of property ownership: exclusion. Having a right in some property means having the moral ground to restrict others from making use of it. And why is this an integral part of property rights? Because as Hoppe explains, the entire concept of property arises out of the fact that rivalrousness exists. Now, despite the fact that Bob Wenzel seems to think that "rivalry" has to refer only to college football teams and Looney Tunes characters, in the economic sense, what we mean by that is "a good whose consumption by one consumer prevents simultaneous consumption by other consumers."

      The fact that you and I can't both eat the same banana, and we don't live in the Garden of Eden where everything is in magical infinite supply and can essentially be conjured up at will, means that the concept of "property" in this rivalrous resources arises. To avoid conflict there has to be an order, a system by which we determine who has the best claim on a rivalrous good, and therefore who has the right to not only consume it, but to prevent others from consuming/making use of it.

      Your definition of ownership doesn't seem to include any of this. So when you say "Coke still 'owns' the formula", you're correct in that they can still make use of it...but the question is "do they have a moral right to forcibly prevent others from making use of it?" And to that end, you're simply begging the question by claiming Coke "owns" an idea.

      The formula is not rivalrous at all. As Kinsella explained in the debate, you and I both having the same recipe doesn't prevent either one of us from utilizing that recipe to guide our actions. Knowledge is not a scarce means of action. It is not ownable property. (See 56:24-58:34)... [continued]

    7. Your second issue is in your literally state: "an idea is property – the result of man applying his brain to the physical world". That makes absolutely no sense. Again, knowledge guides action...therefore the idea must exist prior to any sort of action in the physical world. So how you can say an idea is property that is the result of applying one's brain (which I'll assume you mean metaphorically) to the physical world? I mean really what you're saying is "an idea is property – the result of man applying his idea to the physical world." Do you see the problem here?

      You are correct that a man can own the physical product of his labor, but that's not because he owns the idea that guided his labor...nor is it because he owns his labor...a man owns the product of his labor only when he has a higher claim to that product than anyone else...that is, the raw materials he used, the scarce resources he transformed with his labor...he either appropriated/homesteaded, or justly acquired from a rightful owner through voluntary exchange.

      So in other words, a man only owns the product of his labor if he owned the raw materials beforehand (or contracted a transfer of title). To claim that he "owned" the idea that guided his actions, or even more laughable, that the idea is somehow the result of his actions in the physical world, is just abject nonsense.

      So your question, "The product of the brain; the product of muscle...why should these be treated differently from a property rights standpoint?" is quite confused. Essentially the "product of muscle" is ultimately a product of the brain. But neither of those constitutes ownership. You haven't established a positive case for are simply begging the question...You are assuming that ideas are property in trying to make your argument that ideas are property.

      "Action is the employment of scarce means, guided by knowledge. Libertarians believe that there should be property rights in scarce means...not in the knowledge. Knowledge is an inexhaustible good, that once you are aware of it, you're free to use it to guide your actions. And your attempt to enforce IP is an attempt to establish property rights in knowledge, which is not a scarce means."

      "You have a property right in your brain, and your body. This is a scarce resource. You have a legally recognized right to control, to be the exclusive one who can control your body.

      Guess what that gives you? That gives you the ability to act, and it gives you the ability to keep your mouth shut if you don't want to tell people your secret. [...] It gives you the ability to run around your lawn naked at midnight worshiping the moon if you feel like it. That doesn't mean you own this ability to run around. That doesn't mean you "own" your actions, it doesn't mean you own your labor, and it doesn't mean you own the secrets in your head, because those are not ownable things."

      And to your final point: "I am quite satisfied that free markets and contracts applied in a free market environment will sort this out in the future libertarian world. What other conclusion could a libertarian / Austrian reach?"

      The problem is you're not realizing that you cannot replicate a system of IP with contracts. Again, we agree that there should be a system of property rights in scarce (i.e. rivalrous) resources. So the only issue is in your not seeing that a system of IP actually creates new rights that are incompatible with the system of actual property rights that we both agree with.

    8. patm, please see my reply here:

  4. Just came across this: two brief comments.

    " (Some on the anti-IP side say that an idea cannot be owned by anyone. But everything is owned by some entity.)"

    This is not true at all. Not every "thing" can be owned. Only scarce resources can be owned, as Hoppe explains (see here and as is implied in Rothbard's understanding that all rights are property rights, combined with his non-aggression principle which recognizes that *physical* force is the only way to violate rights.

    " Man’s brain must exist in a communist world if I carry the anti-IP argument to what I see as its ultimate conclusion. I am sure the anti-IP libertarians do not see it this way – especially out of respect to the unparalleled contributions to libertarian thought of Hans-Hermann Hoppe (who, apparently, is sympathetic to the anti-IP view), I am hesitant in this conclusion. "

    Hoppe is not just sympathic to the anti-IP view, he is explicitly anti-IP just as I am: see and

    1. Thank you. I am familiar with the arguments on all sides of this issue.

      I don't think I have written anything on the topic for at least two years as I found the tone of the dialogue to be one of the more distasteful of any in the libertarian-debating community.

      When I noticed that I was allowing this tone to effect how I wrote, I decided to spend my time on less harmful pursuits.

    2. Semantics can be troublesome when dealing with such rather general terms as “ownership”. However, it would seem that an inventor could indeed “own” his idea by means of the original IP, i.e. keeping it secret. For instance, should an inventor conceive of a cure for cancer, he could “own” and exploit the idea without witnesses. Should, by theft or torture, a third party unjustly gain possession of the idea, resort to legal recourse for damages for taking of the idea or equitable recourse to prevent use or disclosure of the idea by the miscreant would seem both reasonable and indicative of a property right.

      Once the principle of a property right is acknowledged, statutory rights protections the property right in a manner more beneficial to society follows.


  5. BM, not to pick a scab, but have your thoughts on IP shifted at all since 2013/last year? I thought maybe since some time has passed, your appetite to continue thinking about this topic might have returned...

    1. I have not thought about it much. I remain firm in my view that anything agreed in a private contract and enforced in private means (in the context of IP) is not in violation of the NAP.

      I also hold firm in my view that if the matter was left to the private sector, very few intellectual "inventions" would be worth defending "on my own nickle."

      And that this wouldn't slow down innovation one bit - it might speed it up, as was the case in 19th century Germany.