≡ Menu

KOL040 | INTERVIEW: Alexander Baker: Discussion with a Pro-Intellectual Property Libertarian


Kinsella on Liberty Podcast, Episode 040.

[UpdateKOL186: Great IP Debate with Baker-Kinsella]

This is a discussion about IP with a fellow Austro-anarchist libertarian, Alexander Baker, who initially accepted the anti-IP argument I and others have made, but who has since moved to a type of pro-IP position. We had a few email discussions in recent months about this, but I was unable to persuade him that his approach was misguided. We decided to have a (friendly) discussion about it.

Baker calls his theory “intellectual space” and has a new blog devoted to this “libertarian theory of intangible property”; he sketches his position in his post Intro to Intellectual Space. We had a very interesting, civil discussion, which is rare for discussions with IP advocates (see, e.g., KOL 038 | Debate with Robert Wenzel on Intellectual Property). Baker was honest and forthright, willing to admit what he is not yet sure about; he admitted his own bias for IP given that his career (as a musical composer) depends in part on IP protection. He admitted the burden of proof is on IP advocates, and I believe he would not disagree with me that many advocates over the years have offered weak arguments.

I don’t agree with Baker, in the end. His argument seems to me to be based on analogies: an idea or recipe can play a role in production “similar” to how scarce means can, and thus can be exploited, owned, etc. However, he came across to me as sincere and searching for truth, which I can appreciate. Listen and judge for yourself.

Update: Here is a previous discussion on this topic between Baker and Stefan Molyneux:


{ 69 comments… add one }
  • Alexander Baker April 16, 2013, 11:39 am

    Thanks Stephan for a stimulating conversation. As I continue to build my theory, I welcome any questions, criticisms or comments at my blog.

    I take a slight exception to the written comments in the OP regarding “recipes” etc. I hope I’ve made it clear that the theory of intellectual space finds a property right only in those intellectual objects which substantially function as productive capacity, because only then will an intellectual object be rivalrous.

    • Stephan Kinsella April 16, 2013, 3:44 pm

      What is OP–? If it is something I wrote please send me a correction and I will try to fix. Someone on YouTube said I was interrupting you too much; this may be so, for which I apologize. I will try to improve my style for future discussions–

      • Alexander Baker April 16, 2013, 3:55 pm

        OP = original post of a discussion thread. What’s important to my theory is to not lump all IP together. A song may be rightful property, a recipe may not. The test is whether the creation of the intellectual object represents an act of homesteading, and whether it is rivalrous.

  • Josiah Garber April 16, 2013, 3:06 pm


    I’d love to hear a different example of an intellectual object that should be considered property and rivalrous besides the song example. Great podcast. I think the logic for the anti-ip side seems much stronger and clearer, but I enjoyed the discussion.

    • Alexander Baker April 16, 2013, 3:29 pm

      Examples of rivalrous intellectual objects include movies, songs, books, computer software, games. The rivalry test for an intellectual object is whether or not it substantially functions as a productive capacity. That’s another way of saying that the intellectual content itself is the consumer good.

      Please feel free to browse my blog – homesteadip.blogspot.com. Your questions and comments help drive my work.

      • Scott April 16, 2013, 9:44 pm

        Alexander, intriguing theory and I commend you for developing it. In your last post you reference a causal relation “productive capacity” and then equate it with an identity statement “intellectual content” is “consumer good”. Identity precludes causal relatedness, ergo contradiction obtains. What idea would not, on your theory, constitute “consumer good”? Again, intriguing theory and thought provoking discussion.

        • Alexander Baker April 17, 2013, 12:30 am

          An idea which nobody would voluntarily pay for is not a consumer good.

  • Inquiring Mind April 17, 2013, 2:01 am

    Question regarding the negative servitude example introduced early in the podcast..

    If a third party can limit the right of you using your own house as a nuclear bomb because it could harm others, why then can a third party not limit the right of you to reproduce their IP within your own house if it, too, could harm others (i.e. harm third party’s financial prosperity by way of IP, among other reasons). It seems as though the only answer is that third party’s financial prosperity by way of his IP is not an inherent right, but then the conclusion is nothing more than the premise by which the conclusion is reached..

    • JamesCarlin April 17, 2013, 3:03 am

      Not quite. The location where a violation occurs is arbitrary and irrelevant to the violation in question. Even the use of fully-owned materials in the process of violation (i.e. the computer) is not the violation itself.

      The violation in question is the involuntary/non-consensual use of another’s owned property – in this case the intangible owned by the author – or as described by Baker, the productive good which was not transferred to the consumer.

      Obviously this relies on some IP concepts, however it is important to correctly attribute the violation as to avoid mistakenly debunking a strawman.

      • Inquiring Mind April 17, 2013, 10:31 am

        But it seems as though the negative servitude argument goes something like this..

        Premise: The assumed right to intellectual property inherently interferes with another’s right to property (i.e. reproduce and sell property as he/she sees fit).
        Conclusion: Therefore, the assumed right to intellectual property is invalid.

        It seems as though the principle of the argument is that two valid rights cannot possibly interfere, therefore the established right to tangible property trumps the assumed right to intellectual property. But why the assumption that two valid rights cannot conflict with one another? I’m not an expert, just thinking aloud here..

        • Inquiring Mind April 17, 2013, 10:35 am

          In other words, whose to say that, alternatively, IP law is the medium by which said discrepancy is solved, unless IP law is inherently invalid, which brings us back to the circular logic issue..

          • Inquiring Mind April 17, 2013, 10:36 am

            whose to say that IP law isn’t****

        • Alexander Baker April 17, 2013, 1:30 pm

          Of course valid rights can conflict with one another. That’s just another way of saying that rights have limits – your rights end where mine begin.

          Important: Boundaries change over time. What you may rightly do today, you may not be allowed to do tomorrow, owing to someone else’s having rightly acquired property in the meantime.

          • Inquiring Mind April 17, 2013, 5:49 pm

            Then what is the principle by which the negative servitude example is valid? If two valid rights can indeed conflict, why is it that the existence of intellectual property rights interfering with a person’s tangible property creates some sort of paradox? Wouldn’t it just make sense that my tangible property rights end where your intellectual property rights begin, by way of IP laws? Unless of course IP laws are invalid.. but in that case, there must be an argument other than that of negative servitude or else, as previously stated, circular logic is employed.

  • Misesian April 17, 2013, 2:31 am

    Why does a recipe not “substantially function as a productive capacity” and why does a song so “function”? Why can a recipe not be “homesteaded” but a song be?

    What has “substantial functioning as a productive capacity” to do with the concept of property? How “substantial” does the functioning have to be?

    Baker appears to have his mind made up about IP and is trying to see if he can justify it by analogy to physical property. This is fine. The problem is he just can’t get it done.

    The non-IP part of property rights that he would agree with doesn’t depend on the notion of “productive capacity”, whether “substantial” or not, nor on distinctions between producer or consumer goods, for justification.

    • Bob B April 17, 2013, 11:07 am

      I was thinking about this as well. If you make the argument that a recipe is not covered by copyright under his proposed framework, then you must apply that same argument to sheet music (which is a recipe for sound instead of taste).

      Once you do that, producing a ‘cover’ of a song for profit would not be covered by copyright. I have a feeling that Mr. Baker would take objection to a more popular band performing his music as their own without his consent, but will happily eat copies of award winning brownies at the local bake sale.

      The only solution I can find to this arbitrary double standard is a rejection of IP entirely. Otherwise we enter into murky waters of hot dishes not being covered, but special sauces can be. What do you do with a song that was written in a 2 hour drug induced flash of brilliance? Surely that is not the same thing as creating the ‘productive capacity’ of a bicycle factory before pumping out more ‘copies’. Should that piece of IP have the same sort of protections as a more labor-intensive one? or does it fall into the more ‘trivial’ arena?

      • Alexander Baker April 17, 2013, 1:19 pm

        These are intriguing questions, and I thank you for them. The first point is to note that precisely the same questions arise with respect to physical property.

        Yes, reasonable people could disagree as to whether a particular recipe did or did not constitute “substantial” productive capacity (thus making it rivalrous). Reasonable people could also disagree on whether a 200 ft. “setback” between a farmhouse and cropland was or was not rightly homesteaded.

        Property boundaries necessarily require subjective, arbitrary human judgments. Whatever criteria you apply to solve this problem with respect to physical things, I will apply to intangibles.

    • Alexander Baker April 17, 2013, 1:26 pm

      You are correct that physical property does not depend on whether it is productive capacity. It depends on whether it is rivalrous.

      Intellectual objects become rivalrous when they function as productive capacity, because producer use by one interferes with producer use by another.

      I believe my writings make that more clear than this podcast interview, which was directed by Kinsella obviously.

      • Bob B April 17, 2013, 3:27 pm

        “Intellectual objects become rivalrous when they function as productive capacity, because producer use by one interferes with producer use by another.”

        This is your assertion, but I’m not sure it is true. Both producers can produce without conflict. The conflict arises when it comes to the ‘sale’ of the product. Specifically, the first original producer wants to sell his product for money, and the second producer is (usually) happy to give it away for free. In the physical world, a 2nd producer of the same physical object for a more affordable price is considered healthy competition.

        At this point the complaint of the first producer is that the second producer is either stealing potential sales or (in your framework) trespassing by using the productive capacity of IP without authorization.

        I think the challenge is proving how an idea given away for free can be rivalrous. In the case of physical property, we would consider this a ‘trivial’ object (the dust in the house). I would argue that IP by its very nature is trivial. Once IP has been created (be it a formula, a song, a movie, a recipe, or just a thought), re-creating it has essentially zero cost. In the physical world, objects with zero cost are trivial.

        The only way then to make IP non-trivial is to attempt to put protections on the IP based on something – usually the effort involved in creating the original. In the physical world this doesn’t work… it doesn’t matter how much effort you put into something. What matters is the cost the market will bear. For things that are trivial the cost is zero. My child puts considerable effort into creating watercolor art, but the market for them is essentially zero.

        To me, belief in IP amounts to trying to monetize trivial things, and prosecuting others for not spending money on the trivial things one is trying to monetize. If you can say that the nature of IP is both production factory and consumer good, I say that the nature of IP is it is trivial – all of it.

        • Alexander Baker April 17, 2013, 10:38 pm

          You are comparing two producers, but ignoring the fact they are both using the same one productive capacity.

          If I build and own a factory, it is my property, and I will disallow you from using my assembly line. You will say that I am restricting competition, that I am monopolizing the use of my assembly line, especially since I only use it during the day. You will say that competition is good, and that I should allow you to use my assembly line at night, because more would be produced, and I would have another competitor.

          And your argument would be perfectly correct, so long as we ignore the property right in the assembly line.

          When I create a song, I have created a productive capacity that did not exist prior, just as a factory owner creates a productive capacity by building an assembly line.

          Whatever reasoning you use to dispute the assembly line example above, precisely the same reasoning will apply to an intellectual object like a song.

          Please review the logical rules in play, and my discussion of them:


          • Misesian April 18, 2013, 5:01 am

            “If I build and own a factory, it is my property,” fine. The remainder of the paragraph and the following one is irrelevant to the issue of the whether the factory is your property or not.

            “When I create a song, I have created a productive capacity that did not exist prior, just as a factory owner creates a productive capacity by building an assembly line.”

            The “productive capacity” of the factory has nothing to do with whether or not the factory is your property. If you don’t dispute this, then the above quoted paragraph is also irrelevant to the issue at hand: property (at least regarding the factory).

            “Whatever reasoning you use to dispute the assembly line example above, precisely the same reasoning will apply to an intellectual object like a song.”

            I’ve said that “productive capacity” has nothing to do with the factory being your property so if you mean this same reasoning applies to “an intellectual object like a song”, then yes. You’ll need to demonstrate what “productive capacity” has to do with the concept of property. You’ve asserted your belief that it does by making “intellectual objects” rivalrous but note that this is now completely different and non-applicable to your factory example.

            Also, you haven’t stated what you mean by “productive capacity” and you haven’t demonstrated how it makes “intellectual objects” rivalrous. You say in another post above that “producer use by one interferes with producer use by another”. This is a very unclear phrase (what is “producer use” and how would one interfere with another?) and you haven’t shown how this relates to the concept of rivalry.

            “Please review the logical rules in play, and my discussion of them”. I got as far as your first rule. You say anti-IP argues:

            “If you download a copy of my book, I still have my book. Your use of the IP does not preclude my use.”

            But then the following absurdity follows:

            “A bicycle is useful, and a second bicycle is a duplicate of the first bicycle, and the use of the second bicycle by a second person does not interfere with the use of the first bicycle by the first person. Therefore a bicycle cannot be property?”

            Here you imply that a bicycle can be reproduced just as a book can be. Thus, since reproduction does not prevent something from being property, a book can be property just as a bicycle can be. Yes, a-specific-book, just as a specific bicycle can be property.

            You want to argue that “an intellectual object-book” is property. Are you also arguing that “an intellectual object-bicycle” is property? If not, it’s unclear why. But the main thing either way is your above examined rule (or characterization of an alleged anti-IP rule) is completely incorrect. A specific bicycle will remain such no matter how many times it’s reproduced as will each specific reproduced bicycle and so on with each specific book. Stated differently, a specific physical item can’t be exactly duplicated (a different thing can’t be the same thing) which is why the rivalrous hence property issue arises for each specific item.

            Thus, you seem to be launching an attack on the act of reproducing itself, with various unclear exceptions such as recipes vs. songs, perhaps “the bicycle” vs. “Against Intellectual Property”?

            I checked your site out; I could say many other things. But this is more than enough; I’m sure you’ll continue on your quest.

            To say the very least, I’m not convinced. Good luck with your book.

          • Alexander Baker April 19, 2013, 8:58 am

            @ Misesian:

            You’re avoiding my point, we both know it, and it emboldens me tremendously. I’ll try once more, with some added clarifications.

            Please assume the general notion that a thing must be RIVALROUS to rightly be property. The actors in my example – factory owner and late-night pirate – agree with Hoppe and Kinsella that RIVALRY necessitates property.

            The DISPUTE is that the factory owner believes that the late-night pirate has trespassed, but the late-night pirate argues that he has not interfered with the use of the assembly line, at all.

            You are the JUDGE in a free-market court. Please give your decision, and a RATIONALE for how, exactly, the late-night pirate’s action interfered with the use of factory owner’s assembly line.

          • Crosbie Fitch April 19, 2013, 9:44 am

            This just helps demonstrate how vacuous and ineffective ‘scarcity’ and ‘rivalrousness’ are at helping people understand the difference between property and monopoly.

            Fred’s photocopier in Fred’s office, Bob’s poetry in Bob’s desk drawer – both the property of the possessor.

            Neither has any right to access, steal, copy or use the other’s property – because there’s a physically delimited, boundary of privacy about it.

            Bob offers his poetry for sale in greeting cards in a shop. Fred buys a few cards.

            Fred now has poetry and a photocopier.

            But Bob has asked the Stationers Company to petition Queen Anne for a privilege to sue those such as Fred, should they make and distribute copies of published works without authorisation.

            With or without this privilege, Fred is at liberty to print as many sheets of photocopied poetry (without misrepresenting respective poets’ authorship) as he wants, but given the Statute of Anne, he is in jeopardy of being sued by Bob. Even so, by enjoying his liberty he has committed no crime, burgled no-one’s home, violated no-one’s privacy, committed no fraud.

            No amount of praxeological sophistry can magic up a privilege. You need the state to create such instruments of injustice.

        • Alexander Baker April 18, 2013, 9:18 am

          @Misesian –

          Please consider a hypothetical in which a factory owner operates his factory during the day. Suppose I sneak in to the factory at night, and using my own raw materials, I manufacture widgets.

          Please explain how my use of his property interfered with his use. Please give a logical rule (If X is …. then ) by which your explanation can be tested.


          • Misesian April 18, 2013, 4:40 pm

            If you sneak into a factory owner’s factory during the day, or at night, or at any time, you’re trespassing (assuming that by sneaking in you don’t have his or her permission).

            The above remains true even if you use your own raw materials to manufacture widgets or anything else or nothing at all.

            How the factory owner uses his property is his or her business. It’s not for the trespasser to decide whether he or she “wouldn’t mind” if the trespasser snuck in at a supposedly opportune time.

            Of course, that’s assuming you accept the concept of property which you do.

            To reiterate, you must establish that IP is correctly conceived as property. I get that you sense this and are working on a detailed explanation/ book. It seems to me that your attempts to date founder on incorrect analogies with physical property and an inchoate conception of property.

            I don’t see the prospects for a more detailed theory/ book improving. But I wish you luck on your quest for truth.

          • Alexander Baker April 18, 2013, 8:36 pm

            @ Misesian,

            You didn’t address the issue.

            In the assembly line hypothetical, assume I question whether there is a valid property right involved. Sneaking in and running the assembly line at night is only trespassing if there is a property right, and there is only a property right if the use is rivalrous.

            Please explain how, in my example, by using your assembly line, at night, with my own raw materials, that I have interfered with YOUR USE.

          • Misesian April 18, 2013, 10:36 pm

            Actually, I did address the issue.

            You’re now introducing something new into your example. Now you’re saying assume the factory may not be owned by the previously stipulated factory owner. Ok. Then this becomes an issue of how one establishes property in the factory.

            In that case, it’d be unclear why you’d need to sneak into the factory at night. If it may not belong to the person previously stipulated to be the owner, it may be yours depending on who has the more proper claim.

            If you follow this up by questioning how one establishes property in the factory, I would suggest that at that point, the factory example becomes completely irrelevant. The real issue would then be how one establishes property rights in anything.

            We could dance around the latter problem if that’s what you want to question but I think it’s beyond a blog comment. I can only refer you to books you already presumably know (e.g. The Economics and Ethics of Private Property by Hans-Hermann Hoppe).

          • Stephen April 19, 2013, 8:42 am


            A rivalrous good is a good whose use by any one person for any one purpose necessarily excludes (or interferes with, or restricts) its use by any other person or for any other purpose.

            A factory is a rivalrous good by its nature. If one person wants it to be closed at night and another person wants to manufacture widgets at night, there is a conflict.

          • Alexander Baker April 19, 2013, 9:02 am


            A song is a rivalrous good by its nature. If one person wants it to be closed at night and another person wants to manufacture song-copies at night, there is a conflict.

          • Stephen April 19, 2013, 9:31 am


            Your analogy fails. The factory owner can’t simultaneously use the factory for any purpose while someone else uses the factory for any purpose.

            On the other hand, I can use a song for any purpose while someone else uses it for any purpose. The only conflict that could arise would be over the use of things that we already agree there should be property rights in. There is not an actual conflict over the “song.”

          • Alexander Baker April 19, 2013, 6:39 pm

            @ Stephen,

            No, you cannot use a song for ANY purpose at the same time that I do. The purpose of my use is to commercially exploit a market. Your use directly interferes with my use.

            And the thing that you are using was homesteaded into existence by me. I homesteaded, its use is rivalrous, therefore it is rightful property.

          • Brian Drake April 22, 2013, 5:54 am

            You can ignore all of Alex’s “theory” because he admits his true point at 47:11-36 (in the podcast; don’t know if time matches YouTube version). Loosely quoted (typed from audio):

            “[the digital media file of a song] is rivalrous, because its use…the capital goods use of that digital media file is to mass produce copies and to exploit a scarce and limited supply of potential customers”

            Like virtually all IP proponents, his argument basically boils down to asserting a property right in potential revenue. Since “potential revenue” is just a misleading way of saying “the money that currently belongs to other people”, this is a false property right assertion.

            Clearly the digital media file (i.e., the pattern of bits his physical digital device is configured to) is not rivalrous in its use to “mass produce copies”. I can have a copy on my computer (i.e., I can configure my harddrive to that pattern) and he can have a copy on his and we can both use it (the pattern) to copy en masse at exactly the same time.

            What is actually (potentially) “rivalrous” is our ability to “exploit a scarce and limited supply of potential customers”. It might be that customer X will not buy from Alex the song file (pattern of bits to configure his digital device) AND buy/receive it from me too. This exlusivity is of course not a given. It could be customer X downloads the song from me for free, determines he likes the song, then looks up Alex and pays for the “official copy” (this happens all the time in real life). It could also be that since Alex most likely has not perfected the ability to market to every single human being, my independent distribution actually reaches new markets and thus does not actually reduce the potential consumer base he had considered.

            But even if my provision of the song does indeed reduce the number of people willing to obtain it from Alex (the actual numbers are always speculative since “potential” customers are uncountable), the point is that “rivalry” over customers is not rivalry in the same definition as “rivalrous” when defining scarce resources. This is the same dishonest tactic Wenzel employed: using “rivalrous” in the same sense as “rivalry”. Two sellers may have a “rivalry” over who gets customer X (this process is more accurately referered to as “competition”), but there is no actual property ownership dispute involved in this type of rivalry, since the actual resources (money, bodies, digital devices, etc.) are already owned by the customers.

            As Kinsella has pointed out in various contexts, this highlights the error in over-use of metaphor and inconsistent definitions. It’s acceptable for convenience to use the term “my customers”, but the “my” there (indicating relationship) is not the same meaning as the “my” in “my computer” (indicating ownership). I clearly don’t own my friends, even though I use the term “my friends”. You don’t own your customers/potential customers, so competing for their patronage is not a trespass against your property. Nor can you rightly include the potential actions of others in how you define the usage of a pattern you originate to magically make it rivalrous and thus subject to ownership.

            Like all pro-IP belligerents, Alex is simply upset that people can compete with him. He’s tried to construct a complex theory to obscure this simple fact, but when all the nonsense and sophistry is stripped away, it’s the same old song we’ve heard over and over. Though presented falsely, the true “rivalrousness” that is claimed is the same claimed by any monopolist. If others are allowed to compete, my income might decline. This no more establishes a property trespass than any other anti-competitive argument.

          • Brian Drake April 22, 2013, 6:07 am

            Darn. My above comment was supposed to go to the main post, not to this specific thread. But seeing where it ended up, I see that Alex further repeats his admission:

            “The purpose of my use is to commercially exploit a market. Your use directly interferes with my use.”

            All competition interferes with your purpose to commercially exploit a market.

          • Stephen April 26, 2013, 9:09 am


            Ah, in your post at April 19, 2013 at 6:39 pm you give away your argument and expose your true colors. (Brian correctly addresses the same thing in his post at April 22, 2013 at 5:54 am).

            You do not want property rights in songs. You want property rights in revenue. You said it yourself.

          • Stephan Kinsella April 30, 2013, 10:12 am

            Yes. The dispute is over property owned by the people using the song: in their money. That is rivalrous, and Alexander’s system of IP would transfer ownership rights in existing, already-owned scarce goods (such as money) from the existing owner to the IP claimant.

        • Misesian April 19, 2013, 6:55 pm


          I’m doing no such thing (avoiding your point). What I was trying to show is that your factory example is inchoately and fundamentally incorrectly conceived. There’s no comparison to what you want to demonstrate – that “productive use” has something to do with physical property. Persuambly you then want to relate this to “productive capacity” and “intellectual objects”. As I’ve shown, you’ve failed in that objective.

          “You are the JUDGE in a free-market court. Please give your decision, and a RATIONALE for how, exactly, the late-night pirate’s action interfered with the use of factory owner’s assembly line.”

          I assumed that you agreed with general libertarian theory on physical property as you previously asserted you did. What you then wanted to show was that property rights extend to “intellectual objects”. Are you now questioning whether an owner can exclude a trespasser from his property if the trespasser doesn’t “interfere with his productive use”?

          If so, this is amazing, or at the very least un-libertarian. As judge, I would evict the trespasser from the owner’s property without a care in the world for whether or not the owner’s “productive use” was or wasn’t being interfered with.

          • Alexander Baker April 20, 2013, 10:17 pm

            @ Misesian –

            You should change your screen name, whoever you might be in reality, you’re evidently not Misesian. The idea that property is necessitate by the rivalrous nature of things comes from Mises, Rothbard and Hoppe.

            If you want to argue the rationale for property in general, contact Hans-Hermann Hoppe.

          • Misesian April 21, 2013, 12:58 am


            You refuse to admit that your factory example fails as a factory owner can evict a trespasser from his property without concerning himself or herself with whether his or her “productive use” was being interfered with. One wonders whether you wouldn’t mind sneaking into someone’s apartment while they’re away on holiday as long as you didn’t interfere with their “productive use” and brought your own bed.

            It’s interesting you mention the name Hoppe. I have suggested The Economics and Ethics of Private Property Rights to you. In chapters 11 and 13, Hoppe explains in great detail why the notion of rivalry can only involve physical property. You claim you’re writing a book but you haven’t addressed his arguments for this very specific claim or his definition of aggression being tied specifically to physical property.

            Fine. I don’t really care to convince you through blog comments as you’re obviously wed to this notion of IP till death do you part it seems. To be honest, your reasoning is imprecise, poorly thought out, inchoate. I see no further reason to engage with you. You don’t seem versed in the literature of the philosophy of property, never mind your attempt to extend it to IP. So, I shan’t be waiting for your book and I shall now disengage.

            That said, I wish you the best as a human being.

          • Alexander Baker April 21, 2013, 8:04 pm

            @Misesian –

            LOL. You’re obviously an anonymous coward, ignorant of Hoppe’s central point about rivalry, or worse, cognizant of it, and refusing to engage, as it obviously makes my point:

            Rivalry is key to property. Not all property is productive capacity, but all productive capacity is property. When intellectual objects function as productive capacity, they are rivalrous, and rightly property.

            You sound like a socialist to me. Change your screen name, and go post on DemocracyNow, or something.


    • Alexander Baker April 17, 2013, 1:36 pm

      A song is a thing that has been made, a recipe is a method for how to make a thing. Thus, a song has been homesteaded, a recipe is instructions for how you may homestead something, but is not an act of homesteading.

      As I said in another post, property depends on rivalry. Intellectual objects generally are not rivalrous unless and until they function as productive capacity. Then, they are.

      In that Intellectual Space is a genuinely new theory, I will need patience.

      • Bob B April 17, 2013, 2:30 pm

        I see you making a distinction without a difference. A recipe is words on a paper indicating how to cook something. A song is notes and words on paper indicating how to play something. I don’t see how you can claim that one has been homesteaded and the other not.

        Is your distinction that the musician typically creates the song and records the performance at the same time – and those 2 acts together are homesteading?

        If that is the case, then the cook creates the recipe and bakes the cake – which would be homesteading the cake. The difference here is that the cook has no expectation that the cake will continue to produce revenue after the first user consumes it, where as the song writer does.

        • Alexander Baker April 17, 2013, 10:47 pm

          A recipe is instructions on how to CREATE a cake which does not yet exist.

          A printed song is instructions on how to PERFORM a song which already exists.

          Writing a song is like baking a cake (act of creation). Performing and listening to a song is like eating and digesting a cake (act of consumption).

          • Bob B April 18, 2013, 1:24 pm

            I disagree entirely. The cake exists in the mind of the cook in exactly the same way that music exists in the mind of the musician. They both write down instructions. At the end, the cook gets a cake, and the musician gets music.

            Also, performing and listening cannot be like eating and digesting. Performing is like cooking, and listening is like eating.

            It seems you must accept IP for things like recipe’s if you accept IP for things like songs or music – or accept neither.

          • Alexander Baker April 18, 2013, 5:59 pm

            @Bob B –

            A song is not a recipe, although there are such things as instructions on “how to write a song”, indeed, whole courses. “First, write a title. Then choose a tempo. Then attach melody notes to each syllable of the title. Then decide on a chord for each strong beat” and so on. This is a RECIPE for how to write a song.

            The RECIPE is instructions for how to create a song, just as a RECIPE is instructions for how to bake a cake.

            The act of actually COMPOSING a song is like actually COMPOSING a cake, both are acts of creation.

            The song is a CONSUMER GOOD, as a cake is a CONSUMER GOOD.

            Performance is DELIVERING the song, serving is DELIVERING the cake.

            Listening is CONSUMING the song, eating is CONSUMING the cake.

  • Crosbie Fitch April 17, 2013, 5:36 am

    …and when the tide of liberty arose about King ©anute’s throne, his courtiers desperately finessed their arguments, that what they were observing was merely a predictable surge, that it would obviously have to occur in the process of obeisance to the king’s command.

    • Alexander Baker April 17, 2013, 1:38 pm

      Stephan King-sella, you mean?

      • Crosbie Fitch April 18, 2013, 3:06 am

        When you’ve completed the finessing of your argument, Alexander, we can try it out on the people. I dare say it’ll have a lot of support from those espousing greater respect for copyright , but it’s those pesky delinquent masses you have to convince.

        Property is that which one can put in a box, or erect a fence around, that which an individual has a natural and vital power (right) to exclude others from. This is where the law comes from.

        Rights and property do not come from the law – however much those desperate to perpetuate state granted monopolies by other means finesse the law’s definitions of property.

        That said, if you say that state granted monopolies are recognitions of property in ideas/designs/patterns long enough, you will fool many people into believing that because the protection of property is recognised as a human right so the protection of ‘property’ in ideas must be recognised as a human right.

        If you corrupt the language you can corrupt anything, but it still doesn’t change human nature.

        You can annul the right to copy from the law, but this does not remove the right to copy from the people.

        King ©anute cannot hold back the tide of his subjects’ liberty – however brilliant the legal minds of his courtiers may be.

  • Joshua Griffith April 17, 2013, 2:01 pm

    Alexander, if I understood you correctly, you analogize a digital song file to a factory, having the productive capacity to manufacture new copies. However, replication requires the use of a scarce resource-consuming computer to perform the non-trivial process of receiving, decoding, storing, and then re-transmitting the analog waveforms that encode the binary number that can be interpreted as a song. It seems to me that the computer is the factory that contains the productive capacity, not the file.

    • Alexander Baker April 17, 2013, 7:57 pm

      No, the computer’s role in copying a digital file is like the raw materials in a factory. Please review this table:


      • Stephan Kinsella April 23, 2013, 11:29 am

        Saying it is “like” it is irrelevant. Similarity and analogy is not enough. The fact is that we all agree in property rights assigned in scarce resources on the basis of first use and contract. Setting up IP rights necessarily has to undercut this: it has to set up a third rule for ownership of a contested scarce resource, one that is inconsistent with the Lockean homesteading/contract rules. Why people cannot see this is truly a mystery. It is very easy to see.

        • Alexander Baker April 25, 2013, 6:45 pm

          Actually, I’ve devised a theory that does NOT require any new rules of ownership, that’s the beauty and power of Intellectual Space – the exact same logic and reasoning which justifies property in homesteaded physical objects applies to certain intangible objects.

          What is easy to see is that the vast majority of people ACT as though IP exists – in particular they contract to buy and sell it. That one fact alone proves IP’s existence and validity. If there was no valid property in IP, people would not and could not contract regarding it.

          • Ontology December 13, 2013, 8:02 pm

            What is an “intangible object?” doesn’t that just mean an object that does not exist?

            How can you homestead an object that does not exist?

            Lets take an mp3 file.

            When we say that an mp3 file is “ON” a hard drive, what this means is that the hard drive is fashioned in such manner that code can be read from it’s form, but there is nothing there in addition to the hard drive itself. When we talk about the mp3 file, we are only talking about the form of the hard drive.

            The mp3 file does not have a productive capacity, because the mp3 file does not even exist, only the hard drive exists.

            The mp3 file is not in any way rivalrous, because it doesn’t even exist. How could the non-use of something that doesn’t exist, interfere with another persons non-use of that which does not exist?

            The same is true with the “song itself,” what is a song? Lets take Happy Birthday. What is Happy Birthday, it certainly is not an extant object we can find somewhere in reality and homestead. Happy Birthday is a possible order of words that can be sung, it does not exist, it is something that extant people can do, it’s a possible modality of extant air molecules. Singers exist, the air molecules they vibrate exist, compact discs exist, hard drives exist, Happy Birthday does not.

            We do not “use” happy birthday at all, so there can never be conflict over it’s use. What is being demanded when one asserts an IP “property claim” is not an “intangible object,” but rather monopoly privilege to a means of collecting monopoly prices.

  • Louigi Verona April 19, 2013, 5:16 am

    I made a short video response and issued a challenge to Alexander.


    • Alexander Baker April 20, 2013, 10:38 pm

      Hi Luigi,

      With all due respect, your “challenge” simply assumes its own conclusion. You’re asking how copying is a physical trespass. It isn’t. It is an intellectual trespass. If you assume that a thing must be physical to be property, then it surely follows that trespass must occur in physical space.

      In my theory, trespass can occur in intellectual space.

      • Louigi Verona April 21, 2013, 3:57 am

        Right. What is “intellectual”? I don’t know of anything in the world around us that is not material. Intellect is matter.

        • Crosbie Fitch April 21, 2013, 6:22 am

          The universe in which we live is real, purely physical, comprised of matter (arrangements of information) and information (arrangements of matter) in space. We produce physical works, comprising both matter and information, a material and intellectual component. We can put these works into physical boxes and physically exclude others from them. We can call those works ‘property’, because they are alienable and we naturally have the power to exclude others from them.

          Being intelligent, we can think/imagine in terms of abstractions, and can conceive of a non-existent/abstract plane in which abstract ideas permeate. One might term this an ‘intellectual space’. However, if we start confusing the abstract with the real, and start believing that, despite a lack of physical power within the abstract plane, people have some kind of divine ‘right’ to exclude others from the abstractions they ‘homestead’ within that abstract plane (or ‘intellectual space’) then we join the ranks of what can be termed ‘religious nutters’.

          • Alexander Baker April 21, 2013, 8:06 pm
          • Crosbie Fitch April 22, 2013, 2:45 am

            Alexander, if by putting your faeries in a box you can exclude me from them, then go for it – I’m not really sure you possess any faeries though.

            If you can sell me a box of faeries such we can both identify and count how many faeries are within, and we can both exclude others from the faeries in our respective boxes, then that sounds promising.

            If we can add and remove faeries to boxes, such that several people (in a double blind test) count the same numbers of faeries in a set of boxes (containing differing numbers of faeries), then we’re pretty close to establishing the physical reality of faeries.

            The trouble is, we need to distinguish between a ‘faerie’ (a piece of paper shaped like a faerie) and a faerie (a tiny winged humanoid creature, ethereal or otherwise).

            You can substitute faerie with triangle, and similarly distinguish between the ‘triangle’ (drawing of) and the triangle (abstract concept). You can put drawings of abstractions in boxes, but you can’t put abstractions in boxes.

            You can even substitute ‘intellectual object’, but again, you need to distinguish between its physical description and the imaginary abstraction.

            If you reverse this process, you should see that you are effectively trying to argue that faeries are real, and that you believe in their existence.

            That the concept of faeries has played a significant part in mankind’s culture is true, but this doesn’t make faeries real, nor property (copyright notwithstanding).

            You can physically possess a physical description of an abstraction. You can imagine, but cannot physically possess an abstraction – though thanks to indoctrination by sacred state granted monopolies, many people like to imagine that they can and should be able to possess abstractions (they make do with ‘all physical manifestations thereof’, given the abstract plane is still inaccessible to them).

            So, Alexander, do you believe in faeries?

          • Stephan Kinsella April 23, 2013, 11:27 am

            Alexander, the question is not whether ideas, patterns, inventions, songs, etc. “exist” or “are real.” This is just semantics or at best, conceptual organization. Treat these things as you like. Say the exist. Say they are “real.” Say they “are” “entities.” Say they “have” a nature. Say they are “created.” I do not object to any of this. It is utterly irrelevant since it simply begs the question by assuming that if you can say it ‘exists” then it is ownable. This does not follow.

            Ownership in fact is literally impossible over nonscarce things. Ownership is some kind of recognized exclusive use of something–necesarily a scarce resource. It is often backed by force, say. And implies the power to exclude, to exclusively control, a given thing. That makes no sense whatsoever for nonscarce things like information. How could it, since rights are en”forced” by physical force used against physical (material) resources. The copyright holder suing someone always seeks to control some physical resource owned by the victim-defendant: his money, say, or his body or other resources. The dispute is always, always, always, about scarce resources. The copyright claim is just a disguise used to cover up the nature of the real claim being made: the claim on the owned property of the victim. If you said “I own the money you just earned because you used information in your actions that I came up with” then the naked theft would be more transparent; thus the IP advocate covers it up by using “property” and other techniques. It’s question-begging and disingenuous. IP is just a type of theft of existing property rights.

  • Alexander Baker April 22, 2013, 7:45 am

    Property, physical or intellectual, is a monopoly, if you wish to use that term. Property is the right to exclude others from use. The state currently enforces both physical and intellectual property rights, and such is not an argument for or against anything.


    • Crosbie Fitch April 22, 2013, 9:48 am

      The cartel is already trying the old “Let’s call state granted monopolies ‘property'” line.

      So, you might as well say “Let’s call the state’s recognition of natural property a ‘monopoly'”.

      I have a natural monopoly over my identity, but it isn’t property.
      I have natural property in my chair, but I don’t have a monopoly in the sale/manufacture/supply of chairs – natural or granted by the state.

      Yes, there are many opportunities for Newspeak, whether you’re an overt copyright supporter, or a fifth column ‘libertarian’.

    • Stephan Kinsella April 23, 2013, 11:23 am

      Property rights in scarce resources are not monopolies. This is a common argument of IP advocates. They are saying: “You complain that patent and copyright are monopolies. But regular property rights are monopolies too. So we libertarians have no grounds to complain about monopolies at all.”

      This is nonsense.

      It is similar to another argument IP libertarians often make. I say: if you grant an IP right, it gives a third party the right to limit how you can use scarce resources that you already own. They respond: “Well you can’t shoot your gun at me or swing your first if it hits my nose, so the existence of others’ property rights always limits how you can use your property. ‘Therefore’ [sic], libertarians have no grounds for complaining about any limitations on property rights.”

      Both arguments are completely nonsensical. See: Intellectual Property Rights as Negative Servitudes, The Non-Aggression Principle as a Limit on Action, Not on Property Rights, and IP and Aggression as Limits on Property Rights: How They Differ.

      • Alexander Baker April 27, 2013, 12:19 am

        Yes, and some intellectual objects are scarce and rivalrous.

        • Brian Drake April 28, 2013, 5:41 pm

          No. They’re. Not.

          And you don’t even believe that either. You equivocate by talking about the rivalrousness of intellectual objects, but admit that the rivalrousness you really have in mind is that of the limited amount of potential revenue (i.e., money that belongs to other people that MIGHT give it to you).

          Intellectual objects != money belonging to other people

          Thus you are engaged in equivocation, which is another way of saying you are lying.

        • Stephan Kinsella April 30, 2013, 10:10 am

          Alexander, above you gave examples of “intellectual objects” that are rivalrous, including “movies.” A movie is not rivalrous. You cannot find an economist in the world who would agree with this. Even the ones who support IP. Any number of people can “have” and “use” the “movie” at the same time, without interfering with others’ use of the movie and without rivalry or conflict.

  • Brian Drake April 22, 2013, 5:47 pm


  • Scott R April 26, 2013, 12:46 pm

    He lost me as soon as I saw that he was relying on analogies to tangible things. An idea/design isn’t a tangible thing. A song is not like a bicycle. Pro-IPers need to come up with a new approach to this entire argument.

    • Alexander Baker April 27, 2013, 12:03 am

      @Scott –

      All of law relies on analogy. If you dismiss analogy outright. you dismiss the common law. Unless you are willing to accept the validity of saying “This situation is similar to that situation, therefore the law should treat it the same”, then you simply cannot have law.

  • Leggo my eggoism November 16, 2013, 2:03 am

    Hello all,

    I know Stephan will perhaps disagree with me on this, but I think it is very important when debating over IP, to touch on the ontological state of ideas, and point out that because ideas do not exist, what is actually being controlled by IP “rights” is other people, and the permitted limits of their autonomy.

    People do in fact ideate, but no extant thing(idea) is ever summoned into existence by their ideation. Ideation is an action of an individual person, specifically the action/state of their brain.

    When envisioned in this way, I think the very un-libertarian nature of IP becomes very clear.

    Let’s consider the ontological nature of say a novel. What exactly is a novel? I’d argue that in the world around us, there is no such ontologically extant thing as a novel, instead when we talk about a novel, we are only talking about a possible combination of concepts(words) that also do not ontologically exist. Ontologically speaking, a “paper copy of a novel” is merely ink and paper, fashioned in such way, that upon reading, a reader is aided in ideating upon concepts in like manner to the way the original writer did while writing said novel.

    To enforce control over a conceptual novel, is to forcibly limit another persons autonomy, not as a necessity for the author to enjoy the result of their original ideation. A creative persons autonomy is not impeded upon, simply because another emulates them, or their way of acting on their ideation, also it should go without saying that something that does not exist, cannot be stolen.

    Unfortunately the material world does not work this way. If someone were to ask me why I feel I MUST have exclusive control over, and forcibly limit others freedom to use, portions of the of the material world, my answer would be that the nature of matter is such that I can not eat an apple, while another simultaneously eats the same apple, I cannot plant a garden to provide food for myself while another uses the same space to build a house.

    The significance of the rivalrous nature of matter is that the phenomenon of ideation(which is what we are fundamentally talking about when we discuss IP), is not material, does not work the same way as matter, and this is why justifying the appropriation of the physical world, is an entirely different exercise than attempting to justify the appropriation of NON-EXISTANT ideas, formulas, recipes, novels, etc…

    In short matter exists, and can therefore be the subject of debates over appropriation norms, ideas however DO NOT EXIST, therefore they can NEVER be the subject of any rational appropriation scheme. No mater what kind of mental gymnastics one goes through in an attempt to justify the appropriation of ideas, they are wasting time because the thing they wish to appropriate does not even exist.

Leave a Reply

© 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