≡ Menu

The Anti-IP Reader: Free Market Critiques of Intellectual Property

Cite as: Stephan Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023; www.stephankinsella.com/ip-reader)


Papinian Press logoThis online e-book is a selection of critiques of intellectual property (IP) law from a libertarian or free market perspective.

We live in a world awash with IP law, with most laymen, scholars, and policy-makers all being in favor of patent, copyright, and other forms of IP. So, most writing on IP is favorable to these systems. Some want reform, but almost none favor abolition. The anti-IP view is thus very much a minority view. And there are some leftist critics of IP, but they tend to base their arguments on criticisms of capitalism and free markets.1 There is thus a need for a collection of key writings critical of IP from those not hostile to private property and free markets—that is, from libertarians and others defenders of free markets.

I had an idea for a book like this some time ago. However, many of the pieces I would like to include are, ironically and tragically, under the copyright censorship wall, which, along with the usual difficulties of working with a mainstream publisher, would make publishing a more standard book difficult. Thus, I have decided to present this material in the form of this “skeletal e-book,” with hyperlinks to online versions of each chapter (most of my preferred material was available online, with only a couple of exceptions, but was still under copyright, which would make a reprint prohibitive).

I focus mainly on those thinkers who favor complete abolition of IP due to its incompatibility with free markets and private property, or who at least express deep skepticism of IP on similar grounds. I do not include leftists who oppose IP because they oppose capitalism and property rights in general, though I do include some left-libertarian criticisms of IP since those are not  hostile to property rights in general. Chapter 1 is not anti-IP but is a useful general history. With a few exceptions, I also do not include those who merely advocate for IP reform. And I certainly do not include writings in favor of IP, as the literature is replete with such sentiments and arguments. I have also decided not to include anything by Mises, Hayek, or Rothbard, since none of them mounted any full-throated or coherent criticisms of IP. They all expressed skepticism, but unfortunately could not quite see the ultimate incompatibility of IP with the private property and free market regimes they otherwise advocated (and Rothbard, unfortunately, even favored some type of contractual or common law “copyright” which is almost the same as patent law even while opposing official patent law).2

I have ordered the included chapters roughly chronologically, within categories. The dates following each title indicate the dates of the featured publication, or, in some cases, of the relevant time period discussed or publication date of the key IP-related publications of the thinker(s) discussed.


Part I: History of IP

  1. Adam D. Moore & Kenneth Einar Himma, History of Intellectual Property (2011).3
  2. Fritz Machlup, Historical Survey [Patent Law] (1958).4 Part II of Machlup’s study An Economic Review of the Patent System, commissioned by Congress (and thus public domain) includes a brief overview of the history of IP.
  3. Karl Fogel, The Surprising History of Copyright and The Promise of a Post-Copyright World (2006).5

Part II: Overview and History of IP Abolitionism

  1. Kinsella, The Origins of Libertarian IP Abolitionism (1888–1980s).6 All hail Benjamin Tucker, Sam Konkin, and Wendy McElroy!
  2. Kinsella, The Four Historical Phases of IP Abolitionism (mid-1800s–present).7 Let’s go ahead and get to phase five.
  3. Kinsella, Classical Liberals and Anarchists on Intellectual Property (late 1700s–present).8 Rounding them up. The good, the bad, the ugly.9

Part III: Early Opposition to IP

  1. Fritz Machlup, The Patent Controversy in the Nineteenth Century (1850–73). This is a section from Machlup’s 1958 study prepared for Congress, An Economic Review of the Patent System,10 which summarizes a more in-depth 1950 work with Edith Penrose, which is unfortunately not online. As Machlup’s report explains, the ability of the English crown to grant protectionist monopoly privileges, in the form of patents, was reined in by Parliament in the Statute of Monopolies of 1623, but the act still allowed the crown to grant patents for inventions. Later, more general patent laws were enacted, the first in South Carolina in 1691, and then in the US in 1790, shortly after the Constitution was ratified in 1789. Free market economists began to object to the patent system in the mid-1800s, leading some countries to repeal or delay adopting patent laws. The primary criticism was that protectionist patent grants are incompatible with free trade. However, the “Long Depression” starting in 1873 turned public opinion against free trade, leading the anti-patent movement to collapse and for modern patent systems to eventually become dominant world-wide.11
  2. Wendy McElroy, Copyright and Patent in Benjamin Tucker’s Periodical (1888–91).12 McElroy recounts the debates on IP in the magazine Liberty in the late 1800s, with individualist anarchist Benjamin Tucker, the editor of Liberty, as well as Tak Kak (James Walker) and J. William Lloyd, strongly opposing IP, and with associate editor Victor Yarros, Wordsworth Donisthorpe, A.H. Simpson, John Beverley Robinson, and Hugo Bilgram arguing in favor of IP.13
    Tucker was the first well-known libertarian or proto-libertarian opponent of IP. His writing on IP is scattered across many Liberty issues from 1888–91,14 so McElroy’s presentation is the best way to understand this early debate and Tucker’s vigorous and principled opposition to IP, even Tucker’s argument had some flaws. For example, as I have noted previously,15 Tucker believed the argument for IP is based on the idea that you own the products of labor, and that this argument must be rejected, because this would imply land ownership, which Tucker opposed.16 Many of these earlier anarchist and proto-libertarian thinkers were mired in the labor concepts promulgated by Locke and Lockeans, which also helped to support the IP idea and which is intermixed with the Marxian labor theory of value and related confusions.17 So their arguments against IP are somewhat rickety, but Tucker was the first to strongly oppose it root and branch, even if some of his arguments need to be refined and shorn of their labor-theory of property and anti-land elements. To his great credit, he strongly opposed IP even though it was championed by his mentor, the anarchist Lysander Spooner.18
  3. Kinsella, Benjamin Tucker and the Great Nineteenth Century IP Debates in Liberty Magazine (1888–91).19 Further discussion of Tucker and the issues discussed by McElroy in the preceding chapter.
  4. William Leggett, Would Humanity Be Better off without Intellectual Property?, and Two Other Essays (1837).20 As noted in a FEE reprint of the lead essay, this article was originally published January 21, 1837 as a response to the popular push among the New York intelligentsia for an international copyright law.21
  5. Robert LeFevre, Ownership of Intangibles (1966).22
  6. Leonard Read, On Plagiarism (1972).23 Now, Read’s terminology is a bit off (plagiarism has nothing to do with copyright), but Read’s anti-IP sentiments here are laudable and ahead of their time.24 As Jeffrey Tucker writes, regarding Read’s pioneering open-source vision:

    Pick up any book or publication from FEE before the 1990s. You will see a remarkable and visionary sentence on the copyright page:

    Permission to reprint granted without special request.

    This one sentence is what made it happen. Any newspaper could print a column. Any publisher could include an essay. Indeed, he invited any publisher to take any FEE book and publish it and sell it, owing no royalties and asking no permissions.

    The publisher was not even asked to acknowledge its source! So, in this sense, he was even more radical than the Creative Commons attribution license.25

Part IV: Mounting Libertarian IP Skepticism in the Pre-Internet Age

As discussed in chapters 4 and 5 above, the first three pieces in this section are where the modern libertarian arguments against IP began to take shape. As I wrote in “Introduction to Origitent” (in LFFS), after the anti-IP writings of Tucker in the late 1800s, and a few scattered pieces in the 20th century (Part III, above):

Amongst libertarians and proto-libertarians, the issue lay mostly dormant until the mid-1980s, when thinkers such as Sam Konkin, Wendy McElroy …  entered the fray again. Konkin and especially McElroy provided the first systematic arguments against IP rooted in modern libertarian property rights principles ….

I list Konkin here first because, as McElroy explains in her chapter, after starting to question the pro-IP line due to her exposure to Benjamin Tucker’s thought (ch. 8, above), Konkin, and fellow libertarian Victor Koman, helped push McElroy to oppose all forms of IP.26 McElroy’s case against IP is far more developed than Konkin’s, and I view it as the first sophisticated and well-developed case against IP in the modern libertarian era.

In 1990, Tom Palmer published an in-depth criticism of IP that focused on scarcity and the nature of libertarian property rights (ch. 15, below), and another criticizing utilitarian arguments for IP (included in Part VI, below).

The work of McElroy and Palmer were the two biggest influences in changing my own mind on IP, combined with Hoppe’s insights on scarcity and the nature of property rights.

I also include here selections by Henri LePage and Boudewijn Bouckaert, also published around the same time as Palmer’s two articles (Bouckaert’s and Palmer’s articles were in the same symposium).

  1. Samuel Edward Konkin, III, Copywrongs (1986).27
  2. Wendy McElroy, Contra Copyright, Again (1985/2011).28 McElroy’s seminal critique of IP law, influenced by the work of Benjamin Tucker and the ideas of Konkin (and Victor Koman), laid the groundwork for the modern libertarian anti-IP movement. To my knowledge, there are no published works by Koman on IP, though he was apparently influential in the early resurgence of the modern libertarian uprising against it, in Los Angeles in the early 1980s.29
  3. Tom G. Palmer, Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects (1990).30 This in-depth criticism of IP focused on scarcity and the nature of libertarian property rights. This piece only briefly addresses utilitarian issues (p. 821), which are addressed in more detail in his companion article published around the same time (ch. 32 in Part VI, below).31
  4. Henri LePage, Propriété industrielle, propriété intellectuelle et théorie de la propriété (1989).32 This work is in French and I have only been able to read a crude auto-translation [doc; pdf], but I include it here since it is reputed, and appears, to be a significant contribution to this debate. (If anyone is aware of a proper English translation of this chapter of LePage’s book, or of an English language review or summary, please let me know. I might also include a work by Bertrand Lemennicier, if I can have a translation made.)33 As Professor Ejan Mackaay writes:

    [I]ntellectual rights would seem to be incompatible with property and other fundamental rights. The question has been raised of whether the apparent incompatibility does not stem from a fundamental flaw in the very concept of intellectual property rights. The case for such a position has recently been stated most explicitly by Tom Palmer in the United States and with equal conviction but in less detail by Henri Lepage in France. This Article is written as part of the debate stirred up by Palmer’s and Lepage’s articles.34

  5. Boudewijn Bouckaert, “What Is Property?” (1990).35 This is the only piece in this collection that is not available online, other than behind the HeinOnline paywall. I have requested reprint permission from the publisher, but in the meantime, I have linked to a post of mine that highlights some of the key insights from this paper that helped illuminate the IP issue for me.

Part V: Austro-Libertarian IP Abolitionism in the Digital/Internet Age

Following the work in Part IV, starting in the mid-1990s, as the Internet and digital copying emerged, several thinkers in the libertarian or free market tradition started to address this issue. I cannot include them all, but have selected some of the earlier and key works or some representative works by key thinkers. I have not included work by later writers who mostly summarize or restate previous arguments. (See the Appendix.) In this Part, I include mostly pieces that criticize IP from a perspective of property rights, libertarian principles, notions of justice, and so on. More utilitarian-focused criticism appears in Part VI, below. (Jeff Tucker has contributed here also, but the article of his that I include is in Part VI, below, as explained there.) After Huebert’s introductory survey chapter, I open with the work of Roderick Long and my work. As far as I know, he and I were the first to start writing on this topic—both in 199536 —after the groundwork laid by Konkin, McElroy, and Palmer in the previous, pre-Internet generation. After the chapters by Huebert, Long, and me, the remainder are presented chronologically, by date of publication.

  1. Jacob H. Huebert, The Fight Against Intellectual Property (2010).37 This is an excellent overview of modern libertarian, pro-property rights criticisms of IP (as of 2010), as represented in the material in this Part V. Huebert also surveys the empirical case against IP (see the chapters in Part VI, below).
  2. Roderick T. Long, The Libertarian Case Against Intellectual Property Rights (1995).38 One of the first of the modern attacks on IP, from a principled libertarian perspective, published in the wonderful but obscure journal formulations (1993-2000), the archives of which are online. Key quote: “It may be objected that the person who originated the information deserves ownership rights over it. But information is not a concrete thing an individual can control; it is a universal, existing in other people’s minds and other people’s property, and over these the originator has no legitimate sovereignty. You cannot own information without owning other people.”39
  3. Roderick T. Long, Owning Ideas Means Owning People (2008).40 Elaborating further on the ideas in the preceding chapter. See also ch. 22, below, Part IV.B.
  4. Stephan Kinsella, Law and Intellectual Property in a Stateless Society (2010).41 Like Long, I started publishing on IP around 1995 (right after I passed the patent bar). I published Against Intellectual Property (2001/2008) (AIP), and many pieces since (see Kinsella, You Can’t Own Ideas). In this collection, instead of AIP, I include two more recent pieces (this chapter and the next), which together adequately cover my thought on this topic.42 The structure of this chapter is similar to the more concise “Intellectual Property and Libertarianism” (ch. 4 of You Can’t Own Ideas), and incorporates much of the material from AIP and includes some additional material that I had published the intervening decade or so. The following piece (ch. 22) contains additional arguments developed subsequently and complements this chapter and AIP.
  5. Stephan Kinsella, Against Intellectual Property After Twenty Years: Looking Back and Looking Forward (2023).43 This chapter provides a perspective on the IP debates amongst libertarians since AIP was first published in 2001, and provides an overview of newer arguments about IP that I’ve made in the two decades or so since the publication of AIP. It also discusses changes I would make to the original arguments presented in AIP. This chapter complements the preceding chapter, which itself was originally published about a decade after AIP.
  6. Hoppe on Intellectual Property (1988–2015). Unlike other High Austrians (Mises, Hayek, Rothbard), who were confused or wobbly on IP (see note in the Preface), Hoppe has always seen this issue clearly. Although he has never written a dedicated article or chapter on his topic, his occasional comments on this topic clearly indicate that he has always recognized that his property rights principles, anchored in notions of praxeology and scarcity, rule out any form of IP. His emphasis on scarcity and his approach to property rights, along with insights from McElroy and Palmer, were essential to my understanding of IP. I have assembled his key comments here.
  7. Timothy Sandefur, A Critique of Ayn Rand’s Theory of Intellectual Property Rights (2007).44 And from a somewhat Objectivist perspective…45
  8. Kevin Carson, Intellectual Property — A Libertarian Critique (2009).46 Unlike some of the other pieces in this section, this hard-hitting attack on IP comes from a left-libertarian perspective.
  9. Sheldon Richman, Intellectual “Property” Versus Real Property: What Are Copyrights and What Do They Mean for Liberty? (2009).47
  10. David Koepsell, Redefining Intellectual Property in the Nano-age (2011).48
  11. Gary Chartier, Intellectual Property and Natural Law (2011).49
  12. Butler Shaffer, A Libertarian Critique of Intellectual Property (2013).50 Butler was a thoughtful libertarian law professor, and a skeptic of IP, a rarity for a law professor. He even moderated one of my own IP discussions.51 This is an unsystematic and somewhat eclectic essay, but he make some good points about how innovation and creativity are obviously possible without patent and copyright, and how these laws cannot be based on contract.
  13. Tom W. Bell, Copyright, Philosophically (2014).52

Part VI: Utilitarian, Empirics, and Economists

As noted in the Preface, there is a large amount work on the topic of IP reform, mostly from a utilitarian or empirical point of view. Almost none  of the empirical/reform work advocates IP abolition, in part because it is completely unprincipled. I have included here a selection of the most influential and useful anti-IP writing from a utilitarian perspective, even though none of it is really truly abolitionist. I start with a couple surveys I have done, since it would be impossible to include a larger sample of the IP-skeptical writing by the empiricists/utilitarians.

  1. Kinsella, The Overwhelming Empirical Case Against Patent and Copyright (2012).53 It is what is sounds like.
  2. Kinsella, Legal Scholars: Thumbs Down on Patent and Copyrigh. (2012).54 It is what is sounds like. Even many law professors, when pressed, concede that IP makes no sense.
  3. Arnold Plant, The Economic Theory Concerning Patents for Inventions and The Economic Aspects of Copyright in Books (1934).55 Not really an IP abolitionist, but these studies are worth including here anyway.
  4. Fritz Machlup, Economic Theory [Patent Law] (1958).56 Part IV of Machlup’s study An Economic Review of the Patent System surveys the economic-empirical case for IP as of 1958. He concludes:

    No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society. The best he can do is to state assumptions and make guesses about the extent to which reality corresponds to these assumptions. … If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.

  5. Tom G. Palmer, Intellectual Property: A Non-Posnerian Law and Economics Approach (1989).57 As noted in the introductory comments for ch. 15, above, in 1989–90 Palmer published two complementary articles on IP theory. This one was devoted mostly to utilitarian-empirical arguments (that topic is also discussed, relatively briefly, in Part IV to ch. 15 (pp. 849–51).
  6. Pierre Desrochers, On the Abuse of Patents as Economic Indicators (1998)58
  7. Julio Cole, Patents and Copyrights: Do the Benefits Exceed the Costs? (2001).59
  8. Mike Masnick, The Case For Patents Harming Innovation (2006).60
  9. Michele Boldrin & David Levine, The Case Against Patents (2013).61 These authors penned an entire book eviscerating the empirical case for IP: Against Intellectual Monopoly (Cambridge, 2008), and were able to negotiate the right to put the book online. The book covers both copyright and patent, and is well worth reading; this later paper covers patents only. From the introduction:

    The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless the latter is identified with the number of patents awarded – which, as evidence shows, has no correlation with measured productivity. This is at the root of the “patent puzzle”: in spite of the enormous increase in the number of patents and in the strength of their legal protection we have neither seen a dramatic acceleration in the rate of technological progress nor a major increase in the levels of R&D expenditure – in addition to the discussion in this paper, see Lerner [2009] and literature therein. As we shall see, there is strong evidence, instead, that patents have many negative consequences

  10. Jeffrey A. Tucker, Ideas, Free and Unfree (2011).62 Tucker was one of the first to see the merit in the new wave of anti-IP thought. He was the Engels to my Marx, so to speak (his words). I list him according to the year 2011 here, but he joined me in this anti-IP crusade many years before that. I list him after the preceding work by Boldrin and Levine, since this piece is primarily a commentary on their 2008 book, Against Intellectual Property. This is also the reason I have included this article by Tucker in this section on utilitarianism. Tucker has also written a great deal on IP from a principled libertarian position, as well. (( See the “Can Ideas Be Owned?” section of It’s a Jetsons World (chaps. 37–41); the “Technology” section of idem, Bourbon for Breakfast: Living Outside the Statist Quo (Auburn, Ala.: Mises Institute, 2010); and various chapters in Part VI of A Beautiful Anarchy: How to Create Your Own Civilization in the Digital Age (Laissez Faire Books, 2012). ))

Part VII: Suggestions for Reform

Short of abolition, that is. Any incremental reform is always to be welcome. Not that it’s likely.

  1. Kinsella, How to Improve Patent, Copyright, and Trademark Law (2011).63 Some modest proposals.
  2. Tom W. Bell, Five Reforms for Copyright (2012).64 Ironically, and I would say shamefully, the book in which this excellent chapter is included is paywalled and not public domain. Even if it was covered by the “Founders’ Copyright” promoted by Bell, it could still not be included here, since that is still a 14–28 year term on literal copying. Boo. But Bell does his best, within his Overton window, I suppose. Some reform. Yay.65

Appendix: Further Reading

Appendix: Cumulative and Duplicative Work

As noted above, there has been a good deal of scrutiny and criticism of IP law since 1995 or so (see Part VI). Some of it is merely duplicative or cumulative of earlier material, or just not up to par (e.g., the work by Barlow), so I have not included it in the main body of material above.66 I list some of this work here:

  1. See, e.g., Kinsella, “Stallman: An Internet-Connectivity Tax to Compensate Artists and Authors,” C4SIF Blog (June 19, 2011); idem, “Eben Moglen and Leftist Opposition to Intellectual Property,” C4SIF Blog (Dec. 4, 2011). []
  2. See, on this, Kinsella, “Mises on Intellectual Property“; “Hayek’s Views on Intellectual Property“; Tucker, “Misesian vs. Marxian vs. IP Views of Innovation“; Tucker, “Hayek on Patents and Copyrights“; Salerno, “Hayek Contra Copyright Laws“; Kinsella, “Hayek’s Views on Intellectual Property“; Tucker, “Misesian vs. Marxian vs. IP Views of Innovation“; Tucker, “Hayek on Patents and Copyrights“; Salerno, “Hayek Contra Copyright Laws“; Rothbard, Man, Economy, and State and Power and Market, Scholars Edition, pp. 745-54 & 1133-38; Rothbard’s comments here; Kinsella, “Böhm-Bawerk on Patent and Copyright“; Kinsella, “Cordato and Kirzner on Intellectual Property.” []
  3. From Adam D. Moore & Kenneth Einar Himma “Intellectual Property,” in Edward N. Zalta, ed., Stanford Encyclopedia of Philosophy (Stanford University, 2011), §1, pp. 1–2. Chapters 2 and 3, below, discuss the origins of patent and copyright law, respectively. For further discussion of the origins of IP law in general, see Oren Bracha’s comprehensive account of the origins of patent and copyright law in “Owning Ideas: A History of Anglo-American Intellectual Property,” (June 2005) (unpublished Ph.D dissertation, Harvard Law School), chaps. 1 and 2; see also other references in Kinsella, “Introduction to Origitent,” in Legal Foundations of a Free Society (LFFS; Papinian Press, 2023), n.3, including: Tom G. Palmer, “Intellectual Property: A Non-Posnerian Law and Economics Approach,” Hamline L. Rev. 12, no. 2 (Spring 1989): 261­­–304, Part II, “Historical Origins of Intellectual Property Rights” [included as ch. 35, below]; Christopher May & Susan K. Sell, “The Emergence of Intellectual Property Rights,” in Intellectual Property Rights: A Critical History (Boulder and London: Lynne Rienner Publishers, 2006); Brad Sherman & Lionel Bently, The Making of Modern Intellectual Property Law: The British Experience, 1760–1911 (Cambridge University Press, 1999); Carla Hesse, “The Rise of Intellectual Property, 700 B.C.–A.D. 2000: An Idea in the Balance,” Daedalus 131, no. 2 (Spring, 2002), pp. 26–45.
    Re patents, see Maximilian Frumkin, “The Origin of Patents,” J. Pat. Off. Soc’y 27, no. 3 (1945): 143–49; “History of patent law” (Wikipedia); Michael Witty, “Athenaeus describes the most ancient intellectual property,” Prometheus 35, no. 2 (March 2018): 137–43; Kinsella, “Food Patents in Greece in 500 BC,” StephanKinsella.com (Aug. 8, 2010).
    Re copyright, see Benedict Atkinson & Brian Fitzgerald, A Short History of Copyright: The Genie of Information (Springer, 2014); Ronan Deazley, Rethinking Copyright: History, Theory, Language (Cheltenham, UK: Edward Elgar, 2006); Ronan Deazley et al., eds., Privilege and Property: Essays on the History of Copyright (Cambridge: OpenBook Publishers, 2010); Michael H. Roffer, “The Irish Copyright War,” in The Law Book: From Hammurabi to the International Criminal Court, 250 Milestones in the History of Law (New York: Sterling, 2015); “History of copyright” (Wikipedia). []
  4. See Part II of Fritz Machlup, U.S. Senate Subcommittee On Patents, Trademarks & Copyrights, An Economic Review of the Patent System (85th Cong., 2nd Session, 1958, Study No. 15); also Oren Bracha, “Owning Ideas: A History of Anglo-American Intellectual Property,” (June 2005) (unpublished Ph.D dissertation, Harvard Law School), chap. 1. See also Simon Lester & Huan Zhu, “Rethinking the Length of Patent Terms,” American U. Int’l L. Rev. 34, no. 4 (2019): 787–806, Part I; and the references noted re ch. 1, above. []
  5. Karl Fogel, “The Surprising History of Copyright and The Promise of a Post-Copyright World,” Question Copyright (2006). See also Fogel’s related Youtube talk. Re the history of copyright, see also Oren Bracha, “Owning Ideas: A History of Anglo-American Intellectual Property,” (June 2005) (unpublished Ph.D dissertation, Harvard Law School), chap. 2, and the references noted re ch. 1, above. []
  6. C4SIF Blog (April 1, 2011). []
  7. C4SIF Blog (April 13, 2011). []
  8. C4SIF Blog (Oct. 6, 2015). []
  9. I call out various libertarian groups for their weak stances on IP in various posts, e.g. More defenses of IP by the Federalist Society (July 29, 2013); Anti-IP Material Needed in the IP Section of the Federalist Society’s “Conservative & Libertarian Legal Scholarship: Annotated Bibliography” (Oct. 29, 2012); James Stern: Is Intellectual Property Actually Property? [Federalist Society No. 86 LECTURE] (Sep. 17, 2022); Independent Institute on The “Benefits” of Intellectual Property Protection (Feb 16, 2016) (ch. 22 of Kinsella, You Can’t Own Ideas: Essays on Intellectual Property [Papinian Press, 2023]);  Shughart’s Defense of IP (Jan. 29, 2010); Disinvited From Cato (Aug. 7, 2016); Cato on IP (Jan. 30, 2023); Cato vs. Public Citizen on IP and the TPP (Jan. 20, 2014); Cato Tugs Stray Back Onto the Reservation; Epstein on reimportation (July 29, 2003). []
  10. Fritz Machlup, U.S. Senate Subcommittee On Patents, Trademarks & Copyrights, An Economic Review of the Patent System (85th Cong., 2nd Session, 1958, Study No. 15), Part II.C. This section is entitled “The Rise of an antipatent movement (1850-1873),” but I have given the listing here the name of the earlier Fritz Machlup & Edith Penrose, “The Patent Controversy in the Nineteenth Century,” J. Econ. History 10, no. 1 (May 1950): 1–29. See also Roger E. Meiners & Robert J. Staaf, “Patents, Copyrights, and Trademarks: Property Or Monopoly,” Harv. J. L. & Pub. Pol’y 13, no. 3 (Summer 1990): 911–48, pp. 911–12, summarizing Machlup & Penrose: “In the Nineteenth Century, the patent debate was characterized in terms of free trade versus protectionism, with ‘protectionists’ favoring monopoly grants to inventors, and the ‘free traders’ against grants. The free traders lost, but not without some battles. A bill to weaken patents passed the House of Lords in England in 1872. Holland abolished patents in 1869, but reinstated them in 1910. Switzerland, which held out against patents longer than any other European country, adopted patents in 1882. Although several portions of Germany did not adopt patents and Chancellor Bismarck announced his opposition to patents in 1868, uniform patents were adopted for the entire Reich in 1877.” []
  11. See also two interesting volumes on the IP debates in the nineteenth century: Robert Andrew Macfie, ed., Recent Discussions on the Abolition of Patents for Inventions in the United Kingdom, France, Germany, and the Netherlands: Evidence, Speeches, and Papers in Its Favour: With Suggestions as to International Arrangements Regarding Inventions and Copyright  (London: Longmans, Green, Reader and Dwyer, 1869; free epub and pdf download and here), and the “sequel”: R.A. Macfie, ed., Copyright and Patents for Inventions: Pleas and Plans for Cheaper Books and Greater Industrial Freedom, with Due Regard to International Relations, The Claims of Talent, the Demands of Trade, and the Wants of the People, vol. II (Edinburgh: T. & T. Clark, 1883), discussed in Kinsella, “Nineteenth Century Criticism of the Patent System” (June 6, 2023). []
  12. Wendy McElroy, “Copyright and Patent in Benjamin Tucker’s Periodical,” Mises Daily (July 28, 2010), was first published as “Intellectual Property,” in idemThe Debates of Liberty: An Overview of Individualist Anarchism, 1881–1908 (Lexington Books, 2002). The Mises Daily version omitted the endnotes that were present in the book chapter. In the version linked here, I have reprinted the Mises Daily article, with the missing endnotes and some missing formatting added (with the author’s permission). []
  13. See also Wendy McElroy, “For Liberty, Life and Property….But Not The Ownership of Ideas,”C4SIF Blog (Nov. 29, 2011), and ch. 9, below. []
  14. See the next chapter. []
  15. See “Molinari (and Tucker, and Mutualists) on IP”  (April 8, 2014). []
  16. See Kinsella, “Statist ‘Private Property’ Is Theft” (Jan. 6, 2011). []
  17. See KOL037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory (March 28, 2013). []
  18. See, e.g., Lysander Spooner, “A Letter to Scientists and Inventors, on the Science of Justice, and their Rights of Perpetual Property in their Discoveries and Inventions” and “The Law of Intellectual Property or an Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas,” in Charles Shively, ed., The Collected Works of Lysander Spooner, vol. 3, reprint ed. (Weston, Mass.: M&S Press, 1971 [1855], http://www.lysanderspooner.org/works); also Kinsella, “Tucker on Spooner’s One Flaw,” C4SIF Blog (June 15, 2012). []
  19. Kinsella, “Benjamin Tucker and the Great Nineteenth Century IP Debates in Liberty Magazine” (July 11, 2022). []
  20. These three essays appeared in the 1984 Liberty Fund collection Democratick Editorials: Essays in Jacksonian Political Economy. I have reprinted all three in Kinsella, “William Leggett on Intellectual Property,” C4SIF Blog (Dec. 6, 2012). []
  21. Which later became the Berne Convention. See Kinsella, “The Mountain of IP Legislation,” C4SIF Blog (Nov. 24, 2010). []
  22. Reprinted and discussed in Kinsella, “LeFevre on Intellectual Property and the Ownership of Intangibles’,” C4SIF Blog (Dec. 27, 2012). []
  23. Reprinted in Kinsella, “Leonard Read on Copyright and the Role of Ideas,” C4SIF Blog (Sep. 12, 2011). []
  24. See, e.g., Kinsella, “KOL207 | Patent, Copyright, and Trademark Are Not About Plagiarism, Theft, Fraud, or Contract,” Kinsella on Liberty Podcast (Feb. 21, 2016); idem, “If you oppose IP you support plagiarism; copying others is fraud or contract breach,” in “Hello! You’ve Been Referred Here Because You’re Wrong About Intellectual Property” C4SIF; Kinsella, “Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense,” Mises Economics Blog (Nov. 21, 2009). []
  25. Jeffrey A. Tucker, “The Works of Leonard E. Read,” Mises Daily (March 31, 2009). See also idem, “Leonard Read’s Open-Source Vision,” LewRockwell.com (Feb. 14, 2009). []
  26. As she writes,

    I had adopted many of Spooner’s ideas wholesale but I balked at his view of intellectual property. Although I did not then question the claim that ideas could be property … Spooner’s approach to intellectual property felt wrong.

    At that same time, I was also engaged in indexing Benjamin Tucker’s 19th century periodical Liberty (1881–1908) and, eventually, I progressed into Tucker’s discussion of intellectual property in which he fundamentally disagreed with the views of his mentor, Spooner. The pre-Stirnerite Tucker considered the issue to be his only deviation from Spooner. As I read the very active debate within Liberty, I began to reduce my commitment to intellectual property, to narrow it. For example, I abandoned altogether the belief that inventions could properly be patented. My belief in copyright, however, was more persistent ….

    SEK3 [Konkin] … chipped away at my acceptance of copyright. The last blow was dealt by the science-fiction writer and SEK3 cadre Victor Koman who asked me a pointed question at an otherwise forgettable party. Vic asked, “Do you really think you own what is in my mind?” As an anarchist who was then reading both Tucker and 19th century abolitionist tracts, one answer alone was possible: “No.” And, yet, if I claimed ownership over an arrangement of words he had read, then I was answering “yes” because that arrangement now resided in Victor’s mind. If I could compel him (as Spooner suggested) not to speak the words aloud, then I was making an ownership claim over another person’s body.

    At that moment—and, granted, it took several months of consideration to reach that moment—I abandoned all belief in intellectual property. []

  27. Samuel Edward Konkin, III, “Copywrongs,” The Voluntaryist (July 1986), reprinted at LewRockwell.com (Nov. 15, 2010), and also in Schulman’s Origitent. []
  28.  Wendy McElroy, “Contra Copyright, Again,” Libertarian Papers 3, art. no. 12 (2011), which includes idem, “Contra Copyright,” The Voluntaryist (June 1985); also included in Schulman’s Origitent. Other writing by McElroy on this topic includes “Copyright and Patent in Benjamin Tucker’s Periodical” (ch. 8, above); “The Last Gasp of Copyright Dies Within Me,” The Daily Anarchist (March 20, 2013); “For Liberty, Life and Property….But Not The Ownership of Ideas,”C4SIF Blog (Nov. 29, 2011); her earliest writing on this topic, “On the Subject of Intellectual Property,” Caliber (December 1981–January 1982): 8–9; and “Patently Absurd,” LewRockwell.com (July 20, 2000). []
  29. In a subsequent email discussion with Koman, he wrote me this on Aug. 21, 2023: “regarding any anti-IP articles I may have written: I don’t recall any. I was mostly outside the ring, watching Sam [Konkin] and Neil [Schulman] (and Wendy [McElroy]) go at it, shouting ‘Fight, fight, fight!'” []
  30. Tom G. Palmer, “Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects,” Harv. J. L. & Pub. Pol’y 13, no. 3 (Summer 1990): 817–65. []
  31. Despite having a principled opposition to IP, rooted in property rights and libertarian ideas, Palmer seemed to backtrack on pharmaceutical patents later on, on utilitarian grounds. See Kinsella, “Cato vs. Public Citizen on IP and the TPP,” C4SIF Blog (Jan 20, 2014); “Cato on IP,” C4SIF Blog (Jan. 30, 2023). []
  32. Henri LePage, “Propriété industrielle, propriété intellectuelle et théorie de la propriété,” ch. X in La Nouvelle Économie Industrielle (1989; pdf). []
  33. See Bertrand Lemennicier, “Brevets d’invention, droits de reproduction et propriété intellectuelle” (Patents, Reproduction Rights and Intellectual Property). []
  34. Ejan Mackaay, “Economic Incentives in Markets for Information and Innovation,” Harv. J. L. & Pub. Pol’y 13, no. 3 (Summer 1990): 867–909, at p. 869. []
  35. Available at HeinOnline, which is paywalled. See discussion in Kinsella, “Bouckaert, ‘What is Property?’ (1990),” StephanKinsella.com (May8, 2023).  []
  36. See Kinsella, “Roderick Long: Bye-Bye for IP,” C4SIF Blog (Dec. 30, 2010); Kinsella, “Letter on Intellectual Property Rights,” in You Can’t Own Ideas. []
  37. Jacob H. Huebert, “The Fight Against Intellectual Property,” in Libertarianism Today (Praeger, 2010). []
  38. Roderick T. Long, “The Libertarian Case Against Intellectual Property Rights,” formulations (Autumn 1995). []
  39. See also Long, “Thoughtcrime” (Sep. 14, 2003); “Comments on Bedirhanoğlu and Schaefer” (2009). []
  40. Roderick T. Long, “Owning Ideas Means Owning People,” Cato Unbound (Nov. 19, 2008). []
  41. Originally published in Libertarian Papers 5, no. 1 (2013): 1–44; an updated version of which is included in LFFS; also included in You Can’t Own Ideas. []
  42. For those who want to read the original AIP, I recommend instead “The Case Against Intellectual Property” as it omits some material very few need to read, such as the examples in the Appendix and the lengthy bibliography. See Kinsella, “The Case Against Intellectual Property,” in Handbook of the Philosophical Foundations of Business Ethics (Prof. Dr. Christoph Lütge, ed.; Springer, 2013) (chapter 68, in Part 18, “Property Rights: Material and Intellectual,” Robert McGee, section ed.). []
  43. First published in LFFS and also included in You Can’t Own Ideas. []
  44. Timothy Sandefur, “A Critique of Ayn Rand’s Theory of Intellectual Property Rights,” J. Ayn Rand Stud. 9, no. 1 (Fall 2007): 139–61. []
  45. See Kinsella, “The Death Throes of Pro-IP Libertarianism,” in You Can’t Own Ideas. []
  46. Kevin Carson, “Intellectual Property — A Libertarian Critique,” Center for a Stateless Society, Paper No. 2 (Second Quarter 2009; PDF). []
  47. Sheldon Richman, “Intellectual ‘Property’ Versus Real Property: What Are Copyrights and What Do They Mean for Liberty?,” The Freeman (12 June 2009); see also idem, “Patent Nonsense,” The American Conservative (Jan. 1, 2012); Kinsella, “Sheldon Richman’s Takedown of Patent and Copyright: Patent Nonsense” (Jan. 19, 2012); Richman, “Slave Labor and Intellectual Property: On a misplaced analogy,” The Freeman Online (June 3, 2011); and Kinsella, “Sheldon Richman on Intellectual Property versus Liberty.” []
  48. In particular, see chaps. 5–6 of David Koepsell, Innovation and Nanotechnology: Converging Technologies and the End of Intellectual Property (UK: Bloomsbury Academic, 2011), “Things in Themselves: Redefining Intellectual Property in the Nano-age” and “Authorship and Artifacts: Remaking IP Law for Future Objects.” See also Kinsella, “Koepsell on IP“; Koepsell, “Revising Intellectual Property: Liberating Intellectual Capital,”  Innovation, Sustainability, and Development: A New Manifesto; “The Ethical Case Against Intellectual Property” (slidesvideo); “A Patent Too Far,” Washington Times (Op-ed with Kenneth Alfano); How Genes are Like Plutonium (Neither Should Be Patentable); “Back to Basics: How Technology and the Open Source Movement Can Save Science.” []
  49. Gary Chartier, “Intellectual Property and Natural Law,” Australian J. Legal Phil. 36 (2011): 58–88. Much of this appears in idem, Anarchy and Legal Order: Law and Politics for a Stateless Society (Cambridge University Press, 2013), in which Chartier, in his own words, tries “to show how my own preferred version of the new classical natural law theory’s account of property rights could take account of, e.g., Boldrin & Levine.” (Re Boldrin & Levine, see ch. 33, below). In the book version, Chartier goes into more depth as to the relevant view of property. However, as that version is not online, I have used here the previous stand-alone article. See also my comments in Kinsella, “Gary Chartier, ‘Intellectual Property and Natural Law,’C4SIF Blog (July 10, 2022). []
  50. Butler Shaffer, A Libertarian Critique of Intellectual Property (Auburn, Ala.: Mises Institute, 2013). []
  51. See Kinsella, “KOL238 | Libertopia 2012 IP Panel with Charles Johnson and Butler Shaffer,” Kinsella on Liberty Podcast (Feb. 14, 2018). []
  52. Tom W. Bell, “Copyright, Philosophically,” in Intellectual Privilege: Copyright, Common Law, and the Common Good (Mercatus, 2014). []
  53.  Kinsella, “The Overwhelming Empirical Case Against Patent and Copyright,” C4SIF Blog (Oct. 23, 2012). []
  54. Kinsella, C4SIF Blog, “Legal Scholars: Thumbs Down on Patent and Copyright” (Oct. 23, 2012). []
  55. Arnold Plant, “The Economic Theory Concerning Patents for Inventions,” Economica, New Series, 1, no. 1 (Feb., 1934): 30–51; idem,  “The Economic Aspects of Copyright in Books,” Economica New Series 1, no. 2 (Ma7 1934): 167–95. []
  56. From Part IV, “Economic Theory,” of Fritz Machlup, U.S. Senate Subcommittee On Patents, Trademarks & Copyrights, An Economic Review of the Patent System (85th Cong., 2nd Session, 1958, Study No. 15). []
  57. Tom G. Palmer, “Intellectual Property: A Non-Posnerian Law and Economics Approach,” Hamline L. Rev. 12, no. 2 (Spring 1989): 261­­–304. []
  58. Pierre Desrochers, “On the Abuse of Patents as Economic Indicators,” Q. J. Austrian Econ. (Winter 1998): 51–74. See also his article “Excludability, Creativity and the Case Against the Patent System,” Economic Affairs, vol. 20, no. 3 (September 2000), pp. 14-16. []
  59. Julio Cole, “Patents and Copyrights: Do the Benefits Exceed the Costs?“, J. Libertarian Stud. 15, no. 4 (Fall 2001): 79–105. See also Cole, “Would the Absence of Copyright Laws Significantly Affect the Quality and Quantity of Literary Output?“, Markets & Morality 4, no. 1 (2001). []
  60. Mike Masnick, “The Case For Patents Harming Innovation,” TechDirt (Jan. 18, 2006). []
  61.   “Does Intellectual Monopoly Help Innovation” []
  62. Jeffrey A. Tucker, “Ideas, Free and Unfree,” in It’s a Jetsons World: Private Miracles & Public Crimes (Auburn, Ala.: Mises Institute, 2011). []
  63.  Kinsella, “How to Improve Patent, Copyright, and Trademark Law” (Feb. 1, 2011). []
  64. Tom W. Bell,  “Five Reforms for Copyright,” in Jerry Brito, ed., Copyright Unbalanced: From Incentive to Excess (Mercatus Center, 2012). []
  65. See also Kinsella, “Tom Bell on Copyright and Intellectual Privilege,” C4SIF Blog (May 2, 2014);  idem, “Tom Bell on copyright reform; the Hayekian knowledge problem and copyright terms,” C4SIF Blog (Jan 6, 2013); idem,The Great Debate on Intellectual Property,Cato Policy Report (January/February 2002); other copyright writing. []
  66. Perhaps somewhat ironically, I have adopted here the standard of avoiding “cumulative” works here, which is similar to the patent law standard related to the duty of the inventor, applicant, or patent agent/attorney to disclose material prior art; one must disclose relevant prior art, unless it is cumulative with that already provided or discovered. See 37 CFR §1.56(b). []
  67. Discussed in Kinsella, “John Perry Barlow’s “The Economy of Ideas: A framework for patents and copyrights in the Digital Age,” Mises Blog (Dec. 14, 2009). []
  68. see also his “Libertarians for Protectionism” (123) []

© 2012-2024 StephanKinsella.com CC0 To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to material on this Site, unless indicated otherwise. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.

-- Copyright notice by Blog Copyright