Are Intellectual Property Rights Are Inconsistent with Libertariansim?

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Are Intellectual Property Rights Are Inconsistent with Libertariansim?

Post by sWamp-Ass on Wed Mar 28, 2012 7:49 pm

Daily Bell: You provide non-utilitarian arguments for intellectual property being incompatible with libertarian property rights principles. Can you explain this?

Stephan Kinsella: I alluded to this above in my discussion about negative servitudes. An IP right gives the holder the right to stop others from using their property as they wish. For example, George Lucas, courtesy copyright law, can use the force of state courts to stop me from writing and publishing "The Continuing Adventures of Han Solo." J.D. Salinger's estate was able to block the publication of a sequel to Catcher in the Rye, for example. This is censorship. (See The Patent, Copyright, Trademark, and Trade Secret Horror Files.) And Apple can get a court order blocking Samsung from selling a tablet if it resembles an iPad too closely. This is just protection from competition. (See Intellectual Property Advocates Hate Competition.)

Daily Bell: You offer a discourse ethics argument for the justification of individual rights, using an extension of the concept of "estoppel." Can you expand please?

Stephan Kinsella: This approach is summarized in Argumentation Ethics and Liberty: A Concise Guide and New Rationalist Directions in Libertarian Rights Theory. The libertarian approach is a very symmetrical one: the non-aggression principle does not rule out force, but only the initiation of force. In other words, you are permitted to use force only in response to some else's use of force. If they do not use force you may not use force yourself. There is a symmetry here: force for force, but no force if no force was used. In law school I learned about the concept of estoppel, which is a legal doctrine that estops or prevents you from asserting a position in a legal proceeding that is inconsistent with something you had done previously. You have to be consistent. I was at this time fascinated with Hoppe's argumentation ethics, which is probably why it struck me that the basic reasoning of legal estoppel could be used to explain or justify the libertarian approach to symmetry in force: The reason you are permitted to use force against someone who himself initiated force is that he has already in a sense admitted that he thinks force is permissible, by his act of aggression. Therefore if he were to complain if the victim or the victim's agents were to try to use defensive or even retaliatory force against him, he would be holding inconsistent positions: His pro-force view that is implicit and inherent in his act of aggression and his anti-force view implicit in his objection to being punished. Using language borrowed from the law, we might say he should be "estopped" from complaining if a victim were to use force to defend himself from the aggressor or even to punish or retaliate against the aggressor. I tried to work this into a theory of libertarian rights, relying heavily on insights from Hoppe's argumentation ethics and from his social theory in general.
Source/More Here.

It was only 11 years ago, but at the time there was not yet much interest among libertarians in intellectual property (IP). It was thought of as an arcane and insignificant issue, not as one of our most pressing problems. Libertarian attention was focused on taxes, war, the state, the drug war, asset forfeiture, business regulations, civil liberties and so on, not on patent and copyright.

I felt the same way. I looked into this issue primarily because I had been, since 1993, a practicing patent attorney and had always been dissatisfied with Ayn Rand's arguments in favor of IP (Ayn Rand, "Patents and Copyrights," in Capitalism: The Unknown Ideal (New York: New American Library, 1967), p. 133). Her weird admixture of utilitarian and propertarian arguments raised red flags for me. It included tortuous arguments as to why a 17-year patent term and a 70-year copyright term were just about right and why it was fair for the first guy to the patent office to get a monopoly that could be used against an independent inventor just one day behind him. I knew Rand's approach was wrong but I assumed there must be a better way to justify IP rights. So I read and thought and tried to figure this out. In the end, I concluded that patent and copyright are completely statist and unjustified derogations from property rights and the free market. So I wrote the article to get it out of my system and then moved on to other fields that interest me more, like rights theory, libertarian legal theory and the intersection of Austrian economics and law.

In the meantime, with the flowering of the Internet and digital information and with increasing abuses of rights in the name of IP, more and more libertarians have become interested in the IP issue and have realized that it is antithetical to libertarian property rights and freedom. It is in fact becoming a huge threat to freedom and increasingly used by the state against the Internet, which is one of the most important weapons we have against state oppression. (For more on this see SOPA is the Symptom, Copyright is the Disease: The SOPA wakeup call to ABOLISH COPYRIGHT. For more discussion of SOPA and PIPA, see and Techdirt. See also Where does IP Rank Among the Worst State Laws?; Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; Copyright and the End of Internet Freedom; and Patent vs. Copyright: Which is Worse?)

Laissez Faire Books is coming out with a new edition of my Against Intellectual Property later this year. I am also in the process of writing a new book on IP, tentatively entitled Copy This Book, taking into account more recent arguments, evidence and examples. In the meantime, readers interested in these ideas may find useful the list of selected writings and talks that supplement the arguments made in AIP, which I have compiled in my C4SIF blogpost "Selected Supplementary Material for Against Intellectual Property." For further information see various works linked at and material posted going forward at

Daily Bell: How do you think artists and writers feel about it? What do they do to make a living if they do not receive royalties?

Stephan Kinsella: Well, sharing is not piracy, and copying is not theft. (And competition is not theft, either − see Intellectual Property Advocates Hate Competition.) But people are used to thinking in these terms, due to state- and special interest-inspired propaganda to the contrary. Most artists and writers do not make much money from copyright; if they are successful at all they typically go through a publisher who makes most of the profits and owns the copyrights anyway. Luckily, technology is allowing writers and musicians to bypass the publishing and music industry gatekeepers.

There are any number of models artists can use to profit off of their talent and artistry. It is not up to the state to protect them from competition. Musicians can obviously get paid for performing and having their music copied and "pirated" helps them in this respect by making them more well known, more popular. As Cory Doctorow has noted, "for pretty much every writer − the big problem isn't piracy, it's obscurity." Artists are just entrepreneurs. It's up to them to figure out how or if they can make a monetary profit from their passion − from their calling, as I discussed above. Sometimes they can. Musicians can sell music, even in the face of piracy. Or they can sell their services − concerts, etc. Painters and other artists can profit in similar ways. A novelist could use kickstarter for a sequel or get paid to consult on a movie version (see Conversation with an author about copyright and publishing in a free society). Authors of non-fiction such as academic articles do not even get paid today − but it enhances their reputations and helps them land jobs in academia, for example. Inventors have an incentive to invent to make better products that outcompete the competition − for a while. Or they are hired in the R&D department of a corporation that is always trying to innovate. And so on. And if you cannot make your calling your career, then find a way. As director Francis Ford Coppola has observed:

"You have to remember that it's only a few hundred years, if that much, that artists are working with money. Artists never got money. Artists had a patron, either the leader of the state or the duke of Weimar or somewhere, or the church, the pope. Or they had another job. I have another job. I make films. No one tells me what to do. But I make the money in the wine industry. You work another job and get up at five in the morning and write your script."

Source/More Here.


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