My reply to Brian Doherty’s post on my Death Throes of pro-IP Libertarianism article

[Update: See also Brian Doherty, “Intellectual Property: Dying Among Libertarians?” (Reason, 2010)]

Re this article

Stephan Kinsella|8.2.10 @ 10:10PM|#

[reposted to correct formatting error]

Brian, thanks for the plug.

This piece was not meant to set out the case for IP but to discuss how and why the tide has been turning against IP among libertarians. For more information see my Against Intellectual Property, “Intellectual Property and Libertarianism,” and “The Case Against IP: A Concise Guide,” available at
https://www.stephankinsella.com/publications/#IP

I don’t think my argument is utilitarian; in fact the argument against IP need do nothing more than show that IP is incompatible with basic libertarian principles.

The utilitarian case for IP is flawed on many counts: there is no good evidence that it does what its proponents say, namely create net wealth due to incentivizing more innovation and creativity (and the burden of proof is on them); there are methodological problems with such arguments anyway (utility cannot be measured or interpersonally added or subtracted); and it’s immoral to take money from a rich guy and give it to a poor guy just because the latter values it “more” (and it’s wrong for a desperate guy to rape a hooker, even if you argue he gets “more” out of it than she suffers).

The creation case for IP is also flawed. Standard libertarian-Lockean principles already specify who owns a given scarce resource: its homesteader, or someone who can trace their title back to it.

Creation in the IP context typically means coming up with some creative, useful way to use property that we already own. The pattern of words that constitute a “novel” may be displayed on some physical medium to be read by someone (say, printed on a book). The same with the pattern for a song or movie. A recipe or technique (process) can guide the preparation of a food dish or something else. The idea behind a better mousetrap can be used to shape one’s property to make it function better–to have more value to the user.

As I note in Rand on IP, Owning “Values”, and “Rearrangement Rights”, even arch-IP advocate Ayn Rand recognized,

The power to rearrange the combinations of natural elements is the only creative power man possesses. It is an enormous and glorious power–and it is the only meaning of the concept “creative.” “Creation” does not (and metaphysically cannot) mean the power to bring something into existence out of nothing. “Creation” means the power to bring into existence an arrangement (or combination or integration) of natural elements that had not existed before.

If you rework your own property into a more valuable design then you already own the resulting item; no new property rights are created. You owned your property before you rearranged it and you own the rearranged property too.

To grant someone property rights in the pattern of the object has to mean granting them partial property rights over the property over everyone else in the world–the right to veto certain uses of that property. But of course that property is already owned by third parties, in accordance with libertarian-Lockean property-assignemnt principles; so granting veto rights to the “pattern creators” is nothing but a transfer of property rights from existing owners to pattern creators favored by the state.

Often, libertarians who are unsure about the IP issue–many of whom fancy themselves principled and not utilitarian (they would oppose antitrust law, say, and minimum wage law, on the grounds that business owners have a right to do x, y z, not on the grounds that it’s “efficient” to “permit” them to collude on prices or offer low salaries)–ask “but how will authors get paid?” or similar questions. As if a question is a rebuttal. As if, if the answer is not pleasing, then this means state granting of artificial monopoly pattern privileges is somehow justified–it’s not. This doesn’t follow. As if those who see that IP contradicts property rights have some kind of duty to prognosticate and paint a picture of the future world that would emerge once these IP shackles are removed–even though one reason we do not know, is that state IP law has preempted this whole area and squelched private arrangements that would naturally arise without.