The antipatent movement from 1850 to 1873
The debates among individualist anarchists in the late 1800s
Mounting libertarian IP skepticism in the pre-Internet age (1930s–1980s)
Austrolibertarian IP abolitionism in the digital/Internet age (1995–present)
The third phase can be broken into two subphases: first, opposition to IP by free-market (but not completely principled or libertarian) economists such as Arnold Plant and Fritz Machlup from the 1930s to the ‘50s;1 second, a period of strongly libertarian opposition to intellectual property roughly covering the ‘60s to ‘80s.
The primary libertarian thinkers of this latter period are Hayek, Rothbard, Wendy McElroy, Samuel Edward Konkin III (”SEK3”), and Tom Palmer. Hayek and Rothbard were good on this — especially Rothbard — but their analyses were not that extensive.2
Konkin was a significant early figure in the development of a systematic and libertarian opposition to IP, as explained in David Gordon’s article “Sam Konkin and Libertarian Theory”; see also Lew Rockwell’s post “Remembering Samuel Edward Konkin III,” both of which discuss Konkin’s pioneering article “Copywrongs.” After being influenced by Konkin, Wendy McElroy developed the argument further, resulting in the first extensive, full-fledged, fully libertarian, and principled modern case against IP, informed by principles of Austrian economics. Gordon is right in his assessment of Konkin’s significance:
Konkin’s work on IP deserves at least equal recognition as his better-known defense of counter-economics and agorism; and, to the extent that anti-IP views come to prevail among libertarians, I predict that Sam Konkin will be a name we shall often hear.
I believe the same is also true of McElroy. I would say the primary originators of the modern libertarian opposition to IP are Benjamin Tucker, Konkin, and finally McElroy, who built on their insights. McElroy’s analysis was more modern and Austrian and radically propertarian than that of Tucker (who, after all, was wobbly on property in land), and it was more extensive and systematic than that of Konkin. Tucker was a protolibertarian IP abolitionist, without the benefit of modern Austrian and radical propertarian insights; Konkin had pioneering, modern libertarian insights into IP, as can be seen in his “Copywrongs” article, but McElroy took it even further. (It was, in fact, McElroy’s work that was a major influence on my own thinking as I was searching for the right approach to IP in the early 1990s. Ideas do have consequences.)
McElroy’s prefatory remarks to her recent Libertarian Papers article “Contra Copyright, Again” elaborate on this history. As she wrote there, in a “Retrospective,”
Ernest Hemingway once wrote, “If you are lucky enough to have lived in Paris as a young man, then wherever you go for the rest of your life, it stays with you, for Paris is a moveable feast.” Los Angeles in the early ‘80s was like that for libertarians. It brimmed over with supper clubs, student groups, small magazines, debates and conferences. Given the concentration of high-quality scholars and activists in the area, the explosion of activity was inevitable. Although the new-born Libertarian Party was extremely active, the circles in which I ran were generally anti-political or apathetic about electoral politics. They included the cadre gathered around Robert LeFevre, a sprinkling of Objectivists (mostly admirers of Nathaniel Branden), a few Galambosians, and as many Rothbardians as I could meet. And, then, Carl Watner, George H. Smith and I established our own unique circle by creating The Voluntaryist newsletter and re-introducing the term Voluntaryist back into the libertarian mainstream. A libertarian used book store named Lysander’s Books that I co-owned became the center of Voluntaryism.
One intellectual circle in particular exerted a profound influence on the development of my thinking on intellectual property: the anarcho-capitalists who banded around Samuel Konkin III (or, as he preferred, SEK3), many of whom lived in the same apartment complex as SEK3; the complex became known as the anarcho-village. (In truth, it was SEK3 and Victor Koman rather than the entire circle that exerted the influence.)
My first exposure to the theories that constitute intellectual property came from reading Ayn Rand,i but I gave the matter little thought. It was not until reading Lysander Spooner that I began to analyze the issue critically. Spooner advocated a rather extreme form of ownership in ideas. He once wrote, “So absolute is an author’s right of dominion over his ideas that he may forbid their being communicated even by human voice if he so pleases.”ii 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, I was disturbed by how closely so much of Spooner’s advocacy came to the Galambosian view at which so many of my companions laughed derisively. Galambos famously had a nickle jar into which he would deposit a coin every time he used a word that had been “invented” by someone else and to whom (in his opinion) he owned money for its use. I thought then (and now) that such ownership claims went against the free flow of knowledge required by a thriving society … or a thriving individual, for that matter. In short, 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 despite the fact that Murray Rothbard — my idol and my friend — was anti-copyright. Frankly, Murray and I never discussed that subject.
But SEK3 and I did. Many people found SEK3 to be a bit annoying in how he argued ideas. There was a persistence and casual assurance about him that irritated some but which I found charming. SEK3 was always available and “up” for gab-sessions that lasted for hours. He had an uncanny ability to find the strand of thought in your argument which could be reduced to absurdity. Some people bitterly resented this ability because they thought he was making them look foolish but it fascinated me and I found it compelling. SEK3 now used the technique on me and, so, chipped away at my acceptance of copyright.iii 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.
One of SEK3’s cadre who never made the same leap was/is the science-fiction writer J. Neil Schulman, author of the classic libertarian sci-fi novel Alongside Night. Shortly after my conversion experience, I was asked to debate J. Neil on the topic of copyright at a Westwood supper club that scrapped the dinner part of the evening in order to accommodate a longer program of debate, rebuttal, Q&A. (SEK3 may well have been the more logical choice but, as I said, he irritated some people.) The event was a rousing success in several ways. First, the large room was filled beyond capacity, with people choosing to stand for hours rather than leave. Brad (now my husband of over 20 years) attended as the representative of the Society for Libertarian Life. SLL offered 2 buttons: one pro- and one anti-copyright; as I remember, they sold out.
It was a long evening, mostly due to the fact that J. Neil went over his 20-minute time limit by about 30 minutes. Nevertheless, not a single person left and the Q&A was unusually lively. At first, I was disappointed because the questions were overwhelmingly directed toward J. Neil. But, then, I realized no one was arguing with me. Everyone was taking exception to his presentation on what he called “logorights.” At that point, I relaxed until, finally, the moderator had to cut off questions because the gathering was going beyond the time for which the room had been rented. A group of us adjourned to a Good Earth restaurant and continued the discussion.
J. Neil immediately began to write up his side of the debate and later published it.iv I followed suit. Since I always write out my presentations, this merely required some polishing to produce “Contra Copyright” which appeared in an early issue of The Voluntaryist newsletter. A still more polished revision appears below.
You can see from this historical account how the influence of Benjamin Tucker and SEK3 (and Victor Koman) led to McElroy’s complete rejection of IP, and to her debate with Schulman. Schulman’s speech at the debate resulted in his “Logorights” article (1990), and McElroy’s in her “Contra Copyright” (1985). I republished it a few months ago in Libertarian Papers, with the new historical retrospective, and when discussing this piece with McElroy she mentioned that a recording of that original debate might exist. It turns out Victor Koman had recorded the debate, and still had the copy. (Incidentally, years ago I read and enjoyed Koman’s novels Solomon’s Knife and The Jehovah Contract.) At Wendy’s request, he mastered and mixed it, and just a few days ago Wendy sent it to me. It was posted last week as a podcast by the Mises Institute:
This is truly an amazing treasure to find. If only more of the libertarian events of preceding decades had been recorded and preserved. In any case, here we have a sizzling, intelligent debate about IP in the 1980s, in the heart of libertarian ferment in Los Angeles. You can hear in the debate the precursors of arguments and questions that are raging now. (One can only wish Rothbard had turned more of his attention to this issue during these times. He surely would have written more on it had he lived past 1995, into the Internet age.)
Of course, I think McElroy has the better argument in the debate; in fact, I think I agree with everything she said. Her arguments are logical and devastating, her voice eloquent, sincere, and intelligent. Schulman tries to argue for restrictions on the use of ideas and information, but you can hear the unease the audience has with his proposal. I’ve criticized Schulman’s ideas previously;3 here I’ll note only a few things.
First, while Schulman, as an anarchist, to his credit admits that if it could be shown that his version of IP could be enforced only by state law, he would abandon it, he ends his speech with a very 4 unlibertarian threat of murder: to sic the firm of “Smith and Wesson” on those who use the ideas they have learned from him. Second, in this debate he tried to defend IP’s substance while saying he was not defending IP — trying to have it both ways. Third, in later discussions with me and others, he objects to my observation that his argument is basically Randian, which I have extensively criticized; yet in this debate you can hear how explicitly he relies on Rand’s arguments about the nature of property rights and ownership of “values” that someone has “created.” Another interesting fact is that Schulman was and remains a big fan of Konkin — he included an afterword by Konkin in his Alongside Night.
In private discussion with McElroy she provided a bit more color to the events surrounding the debate. An edited version of that correspondence follows:
First of all, thank you for the kind words about my IP stand in the ‘80s … which is pretty much my IP stand right now. I think something remarkable and unique happened in Los Angeles in 1980 that did not happen in other libertarian strongholds like NYC, DC, or SF. Samuel Konkin III had been something of a lone voice against IP, with a few talented associates like Victor Koman taking up the cause. He spoke on the subject at Supper Clubs, he wrote about it (to a limited degree, e.g. the article “Copy Rights and Copy Wrongs”). At the monthly parties that seemed to occur at one place or another, SEK3 and I — we were good friends — went “at it” repeatedly about IP because I came from a Randian background and I was heavily influenced by Spooner. At that point, I was also starting to read the IP debate within Tucker’s Liberty and Tucker (along with several cogent contributors) quite simply overwhelmed my belief in IP, like an army storming a castle wall. [See McElroy’s “Copyright and Patent in Benjamin Tucker’s Periodical.”] At that point, I began introducing Tuckerite IP arguments to SEK3 and, then, he started to hand IP conversations at parties over to me. I think he was tired of the subject. SEK3 lived in the “anarcho-village” — a strip of apartments that resembled a converted motel — and J. Neil Schulman literally lived next door. I think SEK3 was sick to death of discussing this issue … and there I was … full of the passion of the converted and expressing a few twists on the argument that he had not heard before.
I thought about IP for about a solid month. I was indexing Tucker’s Liberty at night and working during the day as a legal secretary. It was a good job. My boss was in meetings about 50 percent of the time and I had copious spare time to sketch articles, etc. The debate with J. Neil came about because both SEK3 and I were pushing the issue at supper clubs, etc., and it was becoming quite an active issue in L.A. in a manner that I do not believe was true of any other city. As I remember, the debate organizers considered SEK3 first. But too many people objected to SEK3 who was rather unpopular in some circles, partly because he could be really quite abrasive; SEK3 balked as well. He kept handing IP off to me. For one thing, I was coming up with arguments he had not heard before. For various reasons, audiences were more receptive when I addressed them.
As for the event itself … it was an LP supper club that ditched the eating part of the evening in order to offer an expanded program — a debate on an issue that kept coming up with their membership. In a break from the norm, it was held in a hotel rather than a restaurant and the crowd was overflow, with standing room only spilling out into the corridor beyond the opened doors. George Smith moderated. The voice you hear informing debaters of the time is that of [my now husband] Bradford Rodriguez, who was in his Toast Masters phase and took on the task of timing. Victor Koman was in the audience and snuck up every once in a while to tend the taping equipment that was on the table at the raised platform where we sat. SEK3 was in the audience, smiling and nodding throughout, his pipe in mouth; what a good mood that man was in! There were quite a few people I remember whose names would mean nothing to you: Paul and Maureen Genteman, Charles Curley, Dick Eagleson, Linda Rader.… Howard Hinman represented SLL (Students for Libertarian Life) and sold buttons that were both pro- and anti-IP as well as literature. By the way, no one was paid for their “performance.”
Afterward, a group of us retired to the Good Earth restaurant for a late dinner.… I, for one, was starving because I can never eat before a speech. J. Neil and his future wife were included in the group as were George Smith, SEK3, Victor Koman, and Brad.
Again, I think that what happened on IP in Los Angeles was unique and flowed from the combination of SEK3 and, then, me being highly vocal on the subject. I also remember several friends telling me it was a ridiculous position that would ruin my reputation if I pursued it. I remember getting into a fight — something I rarely do — with a friend who publicly announced that anti-IP was the only positively silly thing he had ever heard me argue and that I should be embarrassed for myself. That was pretty much the general response from people who were hearing these arguments for the first time. But I thought I was right so I kept on being “silly.” Besides which, what career? I was working days as a legal secretary. By the way, Carl Watner is a strong pro-IP fellow, along Spooner lines, but he willingly published both SEK3 and me on this subject. But, then, Carl is golden.
SEK3 was sound on the issue before I was. What I did was to introduce 19th-century anarchist arguments into the mix — along with some insights from Murray and others, like Jefferson believe it or not — and, then, pick up the issue when SEK3 wearied of it.
It is a hoot that Mises may be doing a podcast of a debate I did decades ago. Thanks guys. You make me smile.
My reply:
Great history. It is amazing how hard it is even for those of us steeped in these issues to keep a clear perspective on it but this confirms the view that you and SEK3 were there at the start of the modern anti-IP libertarian movement, the first of all to have a solid and radical and libertarian stance on IP. It is interesting that it was catching fire in local libertarian circles in the LA area in the early 80s, but what I suspect happened is that the issue remained a sort of “intellectual” one only of only limited import, until the effects of IP law started to be radically magnified ca. 1995 with the dawn of the Internet.
McElroy:
I think you are spot-on correct when you state “the issue remained a sort of intellectual one only of only limited import, until the effects of IP law started to be radically magnified ca. 1995 with the dawn of the Internet.” People were very stirred up by the issue as long as it was being actively debated in LA ca. 1980–1984 but, when they went home, it had little relevance to their lives — unlike taxes, for example. It is not merely the internet that has changed the whole IP landscape but also DVDs and the ability to copy movies so easily. See Wendy McElroy’s Notes.
- 1See Arnold Plant, “The Economic Theory Concerning Patents for Inventions,”Economica, New Series, 1, no. 1 (Feb., 1934); 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
; Fritz Machlup and Edith Penrose, “The Patent Controversy in the Nineteenth Century,”Journal of Economic History 10 (1950), p. 1. - 2On Hayek’s views on IP, see Tucker, “Misesian vs. Marxian vs. IP Views of Innovation”; Jeff Tucker, “Hayek on Patents and Copyrights”; Salerno, “Hayek Contra Copyright Laws”; on Rothbard’s, see his “Knowledge, True and False”; andMan, Economy, and State and Power and Market, Scholars Edition, pp. liv, 745–54, 1133–38, 1181–86.
- iSee Ayn Rand, “Patents and Copyrights,” in Capitalism: The Unknown Ideal (1970).
- iiLysander Spooner, The Law of Intellectual Property; Or an Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas (1855), p. 125.
- iiiSEK3’s views on IP are expressed in Samuel Edward Konkin III, “Copywrongs,”The Voluntaryist (July 1986).
- ivSee J. Neil Schulman, “Informational Property — Logorights,”Journal of Social and Biological Structures, 13 no. 2 (1990), pp. 93–117.
- 3See “On J. Neil Schulman’s Logorights”; “Kinsella v. Schulman on Logorights and IP”; “Query for Schulman on Patents and Logorights”;“Replies to Neil Schulman and Neil Smith re IP”; “Schulman: Kinsella Is ‘the Foremost Enemy of Property Rights.’”
- 4See my posts “Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’”; “Locke, Smith, Marx and the Labor Theory of Value”; “Libertarian Creationism”; “Rand on IP, Owning ‘Values,’ and ‘Rearrangement Rights’; “Elaborations on Randian IP”; “Objectivists on IP.”
