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The Four Historical Phases of IP Abolitionism

In my post The Origins of Libertarian IP Abolitionism, I discussed the origins of the modern libertarian anti-IP movement. I’ve learned a lot more about the antecedents and history of all this from teaching the Mises Academy course “Rethinking Intellectual Property: History, Theory, and Economics.” This history is very interesting. It seems to me we can mark at least four periods of significant and vigorous debate about IP that included strong arguments against IP, which I set forth below.

1.The Anti-patent movement from 1850-1873

Machlup1 lays out four historical periods leading to the modern patent systems of the world:

  • Early History (pre-1624)
  • Spread of the Patent System (1624-1850)
  • Rise of the Anti-patent movement (1850-1873)
  • Victory of the Patent Advocates (1873-1910)

Interestingly, many of the same argument, pro- and con, that were made then, have been made since. The most interesting of these four periods for our purposes is the third, 1850-1873. There is a huge amount of material from this period attacking IP–and from a free market perspective–that I have not been able to access or study in detail yet (but plan to). In this period, patents were attacked along with tariffs by free-traders, since both were seen to be obviously contrary to the free market. But with the depression following the Panic of 1873, there was a rise in nationalism and a reduced opposition to tariffs and protectionism. With the free trade cause on the ropes, its opposition to patents also became less relevant. The willingness to tolerate protectionism and other incursions into free markets and free trade opened the door to increased patent propaganda by special interest groups.

Thus, the anti-patent movement lost steam, and holdout nations such as Switzerland and the Netherlands finally gave in and reintroduced patent systems previously abolished (in the case of the Netherlands) or not yet adopted (Switzerland). Ever since, we have had a more or less universal, modern patent system in place in countries around the world.

2.The Debates among Individualist Anarchists the Late 1800s

As detailed by Wendy McElroy in works such as Copyright and Patent in Benjamin Tucker’s periodical Liberty and Contra Copyright, Again, early libertarian and proto-libertarians and anarchists in the late 1800s had vigorous debates on this topic. Lysander Spooner in The Law of Intellectual Property; Or an Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas (1855) had argued for IP but Benjamin Tucker deviated from Spooner, his mentor, and rejected IP. A vigorous debate ensued in the pages of Liberty, in the 1890s, with Tucker taking the most consistent anti-IP position, and others, such as Tak Kak (pen name for James L. Walker) and Victor Yarros, arguing for IP. Tucker’s arguments were powerful and influenced others later, such as McElroy.

3. Mounting Libertarian IP Skepticism in the Pre-Internet Age

Free market economists had long voiced skepticism over the case for IP. This trend was continued, in the 20th century, by Arnold Plant (1934) and Fritz Machlup (1950s) (see the C4SIF Resources page).

In the latter half of the 20th century, more explicitly libertarian thinkers began to seriously doubt or completely deny the legitimacy of IP, including F.A. Hayek (1948), Murray Rothbard (1962, in MES), Wendy McElroy (1985), Samuel Edward Konkin III (“SEK3″) (1986), and Tom Palmer (1989/90) (again, see the C4SIF Resources page).

4. Austro-Libertarian IP Abolitionism in the Digital/Internet Age

As Roderick Long notes in his 1995 article The Libertarian Case Against Intellectual Property Rights (one of the first sallies of Phase 4),

Though never justified, copyright laws have probably not done too much damage to society so far. But in the Computer Age, they are now becoming increasingly costly shackles on human progress.

The digital information/Internet age made the problem of IP more obvious and serious, which led to our current modern resurgence of libertarian IP abolitionism, a position which seems to have grown and become dominant in the last 10 years, as I argue in “The Death Throes of Pro-IP Libertarianism.”

The case against IP is today especially clear to Austrian-, anarchist-, and left-libertarians, and has intensified and grown significantly in recent years, and shows no sign of abating. The libertarian IP proponents are on the ropes and dwindling in numbers, or so it seems to me.

Thus, in addition to the younger libertarian IP opponents from Phase 3, above (McElroy and Palmer), there are today a large number of libertarian and free market/semi-libertarian opponents of IP, including: Roderick Long, Kinsella, Jeff Tucker, Boldrin and Levine, Julio Cole, Karl Fogel, Nina Paley, David Koepsell, Bertrand Lemmenicier, Sheldon Richman, Kevin Carson, Tom Bell (many of whom are members of the C4SIF’s advisory board), and many others (again, see the C4SIF Resources page for link to many of these scholars’ work).

Let’s hope our numbers in the fourth phase continue to grow, culminating in Phase 5: IP Abolition.

  1. 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 []

Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.