Most libertarians find some areas of
libertarian theory more interesting than others. My own passion has
always been rights theory and related areas, such as the theory of
contracts, causation, and punishment.
property (IP), which has garnered greater attention in recent years,
was never my strongest interest, even though I have specialized in this
field in my legal practice for
more than 16 years. But I've ended up writing a great deal on it from a
libertarian perspective anyway. One reason for this is that there are
not many libertarian patent attorneys.
Commentary by those
familiar with IP law is usually devoid of libertarian principle. Most IP
experts are, unsurprisingly, proponents of the status quo, just as
government school teachers tend to favor government schooling and
astronauts cheer NASA.
And libertarian discussions of IP often
confuse the details of the law under debate. In fact, it's common for
libertarians to conflate trademark, copyright, and patent (Murray
Rothbard talked about a copyright on a mousetrap, which is an invention and therefore the subject of patents).
reason is that from the beginning, the IP issue nagged at me. I was
never satisfied with Ayn Rand's justification for it. Her argument is a
bizarre mixture of utilitarianism with overwrought deification of "the
creator" — not the Creator up there, but Man, The Creator, who
has a property right in what He Creates. Her proof that patents and
copyrights are property rights is lacking.
So, I kept trying to find a better justification for IP, and this search continued after I started practicing patent law.
libertarians abandon minarchy in favor of anarchy when they realize
that even a minarchist government is unlibertarian. That was my
experience. And it was like this for me also with IP. I came to see that
the reason I had been unable to find a way to justify IP was because it
is, in fact, unlibertarian. Perhaps this would have been obvious if
Congress had not enacted patent and copyright statutes long ago, making
them part and parcel of America's "free-market" legal system — and if
early libertarians like Rand had not so vigorously championed such
But libertarianism's initial presumption should have been
that IP is invalid, not the other way around. After all, we
libertarians already realize that "intellectual" rights, such as the
right to a reputation protected by defamation law, are illegitimate. Why, then, would we presume that other laws, protecting intangible,
intellectual rights, are valid — especially artificial rights that are
solely the product of legislation, i.e., decrees of the
fake-law-generating wing of a criminal state?
But IP is widely
seen as basically legitimate. Sure, there have always been criticisms of
existing IP laws and policies. You can point to hundreds of obviously
ridiculous patents, and hundreds of obviously outrageous abuses. There
are absurd patents on ways of swinging on a swing, faster-than-light
communications, and one-click purchasing; there are $100 million- and
billion-dollar patent-lawsuit awards; there are millions of dollars in
copyright liability imposed on consumers for sharing a few songs. Books
are even banned — quite literally — in the name of copyright.
terms of patents (about 17 years), and especially copyrights (which
expire 70 years after the author's death, or 95 years in the case of
works made for hire), are ridiculously long, and Congress keeps
extending them at the behest of Mickey Mouse (a.k.a., the Disney
company). Copyright is now received automatically, whether you want it
or not, and is hard to get rid of. The patent office is an inefficient government bureaucracy; and the
patent laws are arbitrary, ambiguous, and vague (generating more work
for me — thanks).
there are plenty of reasons to oppose the current IP system. There are
many calls for "reform" of IP law, just as there are always calls for
reform of the tax code, welfare, public education, and the way we are
fighting the current war. But I became opposed not just to ridiculous
patents and outrageous IP lawsuits, but to patent and copyright per se,
root and branch. IP laws should be abolished, not reformed, just like
the Americans with Disabilities Act and the tax code.
Why, exactly, is this? What is the libertarian case against IP? To answer this question requires a clear, coherent understanding of
libertarian principles. I thus take a brief detour here to sketch out
the libertarian framework. The Libertarian Framework
What is the essence of our libertarianism? It is said that libertarianism is about individual rights; property rights; the free market; capitalism; freedom; liberty; justice; and the
nonaggression principle or axiom. But capitalism and the free market
describe the market conditions that arise or are permitted in a
libertarian society, not all aspects of libertarianism.
are many calls for 'reform' of IP law, just as there are always calls
for reform of the tax code, welfare, public education, and the way we
are fighting the current war."
What about individual rights,
justice, and freedom from aggression? Well, in my view, these are all
derivative — they are defined in terms of property rights. As Rothbard
explained, all rights are property rights. And justice is just giving someone his due, which depends on what his (property) rights are. Likewise, freedom and liberty also depend on rights, since one ought to have liberty or freedom to do that which is rightful.
The nonaggression principle itself is also dependent on property rights. If you hit me, it is aggression because I have a property right in my body. If I take from you the apple you possess, this is trespass, aggression, only because you own the apple; if it is my apple, it is not trespass.
other words, to identify an act of aggression is implicitly to assign a
corresponding property right to the victim. (This is, incidentally, one
reason why it is better to refer to the nonaggression principle instead of the nonaggression axiom — because property rights are more basic than freedom from aggression.)
we have property rights left. But mere "belief in property rights" does
not explain what is unique about the libertarian philosophy. This is
because a property right is the exclusive right to control a scarce resource; property rights just specify who owns, who has the right to control,
scarce resources. No political system is agnostic on the question of
who owns resources. To the contrary — any given system of property
rights assigns a particular owner to every scarce resource.
of the various forms of socialism, for example, denies property rights;
each socialist system will specify an owner for every scarce resource.
If the state nationalizes an industry, it is asserting ownership of
these means of production. If the state taxes you, it is implicitly
asserting ownership of the funds taken. If my land is transferred to a
private developer by eminent domain, the developer is now the owner. If
the law allows a recipient of racial discrimination to sue his employer
for a sum of money, the plaintiff acquires ownership of the money.
Even a private thief who steals something of yours is implicitly acting on the maxim that he has the right to control it — that he is its owner. He doesn't deny property rights; he simply differs from
the libertarian as to who the owner is. In fact, as Adam Smith observed,
"If there is any society among robbers and murderers, they must at
least, according to the trite observation, abstain from robbing and
murdering one another."
Thus, protection of and respect for property rights is not unique to libertarianism.
What is distinctive about libertarianism is its particular property-assignment rules — its view as to who is the owner of each contestable resource, and how to determine this. So the
question is, what are the libertarian property-assignment rules that
distinguish our philosophy from others? Property in Bodies
There are two types of scarce resources: human bodies, and external resources found in nature. Let us first consider the property assignment rules for bodies.
course one's own body is a scarce resource. As Hans-Hermann Hoppe has
explained, even in a paradise with a superabundance of goods,
person's physical body would still be a scarce resource and thus the
need for the establishment of property rules, i.e., rules regarding
people's bodies, would exist. One is not used to thinking of one's own
body in terms of a scarce good, but in imagining the most ideal
situation one could ever hope for, the Garden of Eden, it becomes
possible to realize that one's body is indeed the prototype of a
scarce good for the use of which property rights, i.e., rights of
exclusive ownership, somehow have to be established, in order to avoid
other words, every person has, controls, and is identified and
associated with a unique human body, which is a scarce resource.
"Thus, protection of and respect for property rights is not unique to libertarianism."
The libertarian view is that each person completely owns his own body — at least initially, until something changes this, such as if he
commits some crime by which he forfeits or loses some of his rights. Now some say that the idea of self-ownership makes no sense. You are yourself; how can you own yourself? But this is just silly wordplay.
To own means to have the right to control. If A wants to have sex with B's body, whose decision is it?
Who has the right to control B's body? A, or B? If it is A, then A owns
B's body; A has the right to control it, as a master to a slave. But if
it is B who has the right to decide, then B owns her own body: she is a
And of course, self-ownership is what is implied in
the nonaggression principle. Ayn Rand famously said, "So long as men
desire to live together, no man may initiate.… No man may start — the use of physical force against others." To initiate force means to invade the borders of someone's body, to use her body without permission or consent. But this presupposes that that person has the right to control her
body: otherwise her permission would not be needed, and it would not be
aggression to invade or use his body without his consent.
libertarian property-assignment rule for bodies is that each person owns
his own body. Implicit in the idea of self-ownership is the belief that
each person has a better claim to the body that he or she
directly controls and inhabits than do others. I have a better claim to
the right to control my body than you do, because it is my body; I have a unique link and connection to my body that others do not, and that is prior to the claim of any other person.
Anyone other than the original occupant of a body is a latecomer with respect to the original occupant. Your claim to my body is inferior in part because I had it first.
The person claiming your body can hardly object to the significance of
what Hoppe calls the "prior-later" distinction, since he adopts this
very rule with respect to his own body — he has to presuppose ownership
of his own body in order to claim ownership of yours.
The self-ownership rule may seem obvious, but it is held only by libertarians. Nonlibertarians do not believe in complete self-ownership. Sure, they usually grant that each person has some rights in his own body, but they believe each person is partially owned
by some other person or entity — usually the state or society.
Libertarians are the only ones who really oppose slavery, in a
principled way. Nonlibertarians are in favor of at least partial
This slavery is implicit in state actions and laws such
as taxation, conscription, and drug prohibitions. The libertarian says
that each person is the full owner of his body: he has the right to
control his body, to decide whether or not he ingests narcotics, works
for less than minimum wage, pays taxes, joins an army, and so on.
those who believe in such laws believe that the state is at least a
partial owner of the body of those subject to such laws. They don't like
to say they believe in slavery, but they do. The modern left-liberal
wants tax evaders put in jail (enslaved). The modern conservative wants
marijuana users enslaved. Property in External Things
In addition to human bodies, scarce resources include external objects. Unlike human bodies, however, external things were initially unowned. The libertarian view with respect to such external resources is very
simple: the owner of a given scarce resource is the person who first
homesteaded it — or someone who can trace his title contractually back
to the homesteader.
"Your claim to my body is inferior in part because I had it first."
This person has a better claim than anyone else who wants the object. Everyone else is a latecomer with respect to the first possessor. (Note that we are here speaking of
scarce resources — material objects — not infinitely reproducible
things such as ideas, patterns, and information.)
rule is actually implied in the very idea of owning property. If the
earlier possessor of property did not have a better claim than some
second person who wants to take the property from him, then why does the
second person have a better claim than a third person who comes later
still (or than the first owner who tries to take it back)?
deny the crucial significance of the prior-later distinction is to deny
property rights altogether. Every nonlibertarian view is thus
incoherent, because it presupposes the prior-later distinction when it
assigns ownership to a given person (because it says that person has a
better claim than latecoming claimants); while it acts contrary to this
principle whenever it takes property from the original homesteader and
assigns it to some latecomer.
what is relevant for our purposes here is the libertarian position, not
the incoherence of competing views. In sum, the libertarian position on
property rights in external objects is that, in any dispute or contest
over any particular scarce resource, the original homesteader — the
person who appropriated the resource from its unowned status, by
embordering or transforming it (or his contractual transferee) — has a better claim than latecomers, those who did not appropriate the scarce resource. Libertarianism on IP
back to IP. Given the libertarian understanding of property rights, it
is clear that the institutions of patent and copyright are simply
Copyrights pertain to "original works," such as
books, articles, movies, and computer programs. They are grants by the
state that permit the copyright holder to prevent others from using
their own property — e.g., ink and paper — in certain ways.
grant rights in "inventions" — useful machines or processes. They are
grants by the state that permit the patentee to use the state's court
system to prohibit others from using their own property in
certain ways — from reconfiguring their property according to a certain
pattern or design described in the patent, or from using their property
(including their own bodies) in a certain sequence of steps described in
In both cases, the state is assigning to A a right
to control B's property: A can tell B not to do certain things with it.
Since ownership is the right to control, IP grants to A co-ownership of
This clearly cannot be justified under libertarian
principles. B already owns his property. With respect to him, A is a
latecomer. B is the one who appropriated the property, not A. It is too
late for A to homestead B's property — B already did that. The resource
is no longer unowned. Granting A ownership rights in B's property is
quite obviously incompatible with basic libertarian principles. It is
nothing more than redistribution of wealth. IP is unlibertarian and
Why, then, is this a contested issue? Why do some libertarians still believe in IP rights?
reason is that they approach libertarianism from a utilitarian
perspective instead of a principled one. They favor laws that increase
general utility, or wealth. And they believe the state's propaganda that
state-granted IP rights actually do increase general wealth.
utilitarian perspective itself is bad enough, because all sorts of
terrible policies could be justified this way: why not take half of Bill
Gates's fortune and give it to the poor? Wouldn't the total welfare
gains to the thousands of recipients be greater than Gates's reduced
utility? After all, he would still be a billionaire afterwards. And if a
man is extremely desperate for sex, couldn't his gain be greater than
the loss suffered by his rape victim, say, if she's a prostitute?
even if we ignore the ethical and other problems with the utilitarian
or wealth-maximization approach, what is bizarre is that utilitarian
libertarians are in favor of IP when they have not demonstrated that IP
does increase overall wealth. They merely assume that it does and then
base their policy views on this assumption.
It is beyond dispute
that the IP system imposes significant costs, in monetary terms alone,
not to mention its costs in terms of liberty. The usual argument, that
the incentive provided by IP law stimulates additional innovation and
creativity, has not even been proven. It is entirely possible (even
likely, in my view) that the IP system not only imposes many billions of
dollars of costs on society but actually impedes innovation, adding
damage to damage.
But even if we assume that the IP system does
stimulate some additional, valuable innovation, no one has established
that the value of the purported gains is greater than the costs. If you
ask advocates of IP how they know there is a net gain, you get silence
(this is especially true of patent attorneys). They cannot point to any
study to support their utilitarian contention; they usually just point
to Article 1, Section 8 of the Constitution, as if the backroom dealings
of politicians two centuries ago were some sort of evidence.
"Utilitarian libertarians are in favor of IP when they have not demonstrated that IP does increase overall wealth."
In fact, as far as I've been able to tell, virtually every study that attempts to tally the costs and benefits of copyright or
patent law concludes either that these schemes cost more than they are
worth, or that they actually reduce innovation, or that the research is
inconclusive. There are no studies showing a net gain. There are only repetitions of state propaganda.
Given the available evidence, anyone who accepts utilitarianism should be opposed to IP. Libertarian Creationism
reason why many libertarians favor IP is their confusion about the
origin of property and property rights. They accept the careless
observation that you can come to own things in three ways: through
homesteading an unowned thing, by contractual exchange, and by creation.
mistake is the notion that creation is an independent source of
ownership, independent from homesteading and contracting. Yet it is easy
to see that it is not, that "creation" is neither necessary nor
sufficient as a source of ownership. If you carve a statue using your
own hunk of marble, you own the resulting creation because you already
owned the marble. You owned it before, and you own it now. And if you
homestead an unowned resource, such as a field, by using it and thereby
establishing publicly visible borders, you own it because this first use
and embordering gives you a better claim than latecomers. So creation
is not necessary.
But suppose you carve a statue in someone
else's marble, either without permission, or with permission, such as
when an employee works with his employer's marble by contract. You do
not own the resulting statue, even though you "created" it. If you are
using marble stolen from another person, your vandalizing it does not
take away the owner's claims to it. And if you are working on your
employer's marble, he owns the resulting statue. So creation is not
This is not to deny the importance of knowledge, or
creation and innovation. Action, in addition to employing scarce owned
means, may also be informed by technical knowledge of causal laws or
other practical information. To be sure, creation is an important means
of increasing wealth. As Hoppe has observed,
One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting
homesteaders, producers, or contractual exchangers. There are no other
production or creation may be a means of gaining "wealth," it is not an
independent source of ownership or rights. Production is not the
creation of new matter; it is the transformation of things from one form
to another — the transformation of things someone already owns, either
the producer or someone else.
Using your labor and creativity to
transform your property into more valuable finished products gives you
greater wealth, but not additional property rights. (If you transform
someone else's property, he owns the resulting transformed thing, even
if it is now more valuable.) So the idea that you own anything you
create is a confused one that does not justify IP. The Contractual Approach
libertarians also argue as if some form of copyright or possibly patent
could be created by contractual tricks — for example, by selling a
patterned medium (book, CD, etc.) or useful machine to a buyer on the
condition that it not be copied. For example, Brown sells an innovative
mousetrap to Green on the condition that Green not reproduce it.
such contractual IP to emulate statutory IP, however, it has to bind
not only seller and buyer, but all third parties. The contract between
buyer and seller cannot do this — it binds only the buyer and seller. In
the example given above, even if Green agrees not to copy Brown's
mousetrap, Black has no agreement with Brown. Brown has no contractual
right to prevent Black from using Black's own property in accordance
with whatever knowledge or information Black has.
Now if Green
were to sell Brown's watch to Black without Brown's permission, most
libertarians would say that Brown still owns the watch and could take it
from Black. Why doesn't a similar logic apply in the case of the
The difference is that the watch is a scarce
resource that has an owner, while the mousetrap design is merely
information, which is not a type of thing that can be owned. The watch
is a scarce resource still owned by Brown. Black needs Brown's consent
to use it. But in the mousetrap case, Black merely learns how to make a
mousetrap. He uses this information to make a mousetrap, by means of his
own body and property. He doesn't need Brown's permission, simply
because he is not using Brown's property.