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There are No Good Arguments for Intellectual Property

There are some decent arguments out there that argue in favor of a state, welfare rights, war, democracy, drug laws, and so on. They are all flawed, since libertarianism is right, but there are coherent, honest arguments that we libertarians have to grapple with.

But it is striking that there are no decent arguments for IP--as Manuel Lora remarked to me, "You know, I haven't seen a good pro IP article ever." This is true. One sees the same incoherent or insincere claims made over and over, such as:

  1. It's in the constitution (argument from authority; legal positivism)
  2. Intellectual property is called property! (argument by definition?)
  3. No movies would be made and kids would die without medicine (artworks and medicine have been produced for ages without IP law; and where's the evidence?)
  4. If you "create" something you own it (despite all the exceptions, and despite the fact that creation is neither necessary nor sufficient for ownership; despite the fact that you either limit these rights in scope or time arbitrarily, or you extent them to infinity, choking off rights in real things and forcing life and commerce to a screeching halt)
  5. It generates net wealth--more value than its cost (no evidence, ever, for this contention--just assumptions; not to mention the problem of utilitarian summing of values)
  6. IP infringement is "theft" (even though the owner still has his property and ideas, and even though IP infringement is just learning and emulating)
  7. People "could" create variants of IP via private contracts... therefore artifical patent granting bureaucracies legislated by a criminal state are ... justified?)

There are other arguments, I suppose, but they are so incoherent as to defy description. They often involve crankish initial caps, like Property and Rights, the Internet equivalent of crayons.

I have truly never seen a coherent, good argument for IP. The advocates are either utilitarian, with all the problems that accompany that (not to mention they never have any evidence for their claims); or the advocate a more "principled", rights-based type of IP that, if taken seriously, would completely undermine all real property rights and make life on earth impossible, so they retreat from this and impose arbitrary, senseless limits on it. What a kluge.

In a recent discussion, What's Wrong With Theft?, one of the IP advocates, when pushed into a corner, ended up arguing that rights to own property include the right to control all "access to" and "interactions with" one's property--and that "interactions" include observing or knowing about or learning facts about the things owned by someone, and that when you use this knowledge you are "interacting with" the property, and thus "stealing" it (even though the owner still has it). So here we have it: IP means "interaction rights." Wow. This is how kooky all IP arguments ultimately are.


Stephan Kinsella

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