NOTE: I am not an expert in the concept of intellectual property, so I welcome clarifications and/or corrections by more knowledgable commenters.

Stephan Kinsella’s short but efficient monograph on the justification for patents, copyright and other forms of intellectual property (or lack thereof) is squarely aimed at libertarians and conservatives. For those in that spectrum, the ideas in the book should at least be the catalyst for a re-think of IP. Kinsella echoes Rothbard in his to-the-point and uncompromising manner. The logic of what he is saying is inescapable.

It is so persuasive, in fact, in my mind the theoretical aspect of intellectual property is more or less settled.

I now turn to the implications of a world in which we abandon patents and copyright. Being in the film industry, I speculate on how I would want my products being distributed with the knowledge that anybody could copy them and make money from them. This requires more thought. In any case, the prospect that conflict would be significantly reduced is the overriding persuasive aspect and encourages me to pursue the subject further. At last, we may be free of guilt for downloading illegal films, and free of the rude notices from YouTube for putting a 10 second segment of a copyrighted song at the beginning of a video.

The extreme economic left, with their skepticism towards the entire concept of private property to begin with, will have little of value to find. For a thorough think-through of private property as a whole, Kinsella implicitly recommends Hans-Herman Hoppe’s The Economics and Ethics of Private Property.

Kinsella quickly establishes the two libertarian/classical-liberal justifications for private property: natural rights theory, and utilitarianism.

He, perhaps rightly, perhaps hastily, dismisses the utilitarian argument altogether as arbitrary and un-enforceable, seeing as there is no objective way to ‘value’ the consequences of patent and copyright enforcement. He makes the compelling point that subjective-value economics is incompatible with the utilitarian argument.

He only briefly touches upon the argument that patents encourage innovation. For more information, Kinsella has produced a presentation in which he outlines studies conducted in this subject, ultimately concluding that patent laws either do nothing towards, or outright discourage innovation. The YouTube of that presentation is linked below.


He spends a bit longer on the natural rights argument, first having to address the fallacies of Adam Smith and Ayn Rand’s views on property. Rand was a stern supporter of patents and copyrights under the assumption that what one produces is automatically one’s property. This derives from the labour theory of value, which was flirted with by Smith, and taken to its fullest extreme by Marx. It is understandable, seeing as if labour theory of value is correct, it matters not that a worker is on the property of someone else when they manufacture a product, it would still follow that the product would be property of the worker seeing as their labour produced it. In that sense Marx’s theory of value is more logically consistent than Rand’s.

To the contrary, Kinsella adopts  Rothbard and Hoppe’s homesteading theory view of property. Nothing is really ‘created’, Kinsella reminds the reader, only re-arranged. The theory states that the first occupier of the resource is the owner of the resource: the product one makes is therefore only theirs by their ownership of the raw materials. The owner can then grant permission to others to manufacture (re-arrange resources into) products for him (him being the owner), or give the right to the resource/product away in a transaction.

But clearly the most important point Kinsella makes is concerning scarcity, and why society needs a consistent view of property rights in the first place. In a utopian world of abundance, no property rights would be required. Individuals could use any resource as they wish without depriving any other. In our temporal world, however, resources are scarce. Property rights, then, are a method of avoiding conflict. Copyright and patents are enforcing the distribution of information, however, information is not scarce in the same way as tangible goods. When one copies the idea of another, the original creator of the idea is not deprived of it. It is therefore fallacious when copyright claimants claim ‘theft’ of their product. They are not lacking of their idea as they would if it was a tangible product that was stolen.

Kinsella points out that the natural rights justification for intellectual property ignores the fact that property is merely a means to the end of avoiding conflict. Patenting and copyright artificially burdens information with the inconveniencies of tangible goods, when it needn’t. There is an inherent conflict in the enforcement of property rights if patents and copyright are upheld: they restrict the use of others’ property. If an individual justly acquires the land and the machinery to produce a product, he is still aggressively prohibited from using it if the products he wants to make happened to be made by someone else first.

In reality, two or more individuals could easily share the usage of the same piece of information without having a fight. It is only the existence of intellectual property legislation that creates conflict between these parties. When a book, movie, invention or computer file is copied, the only thing the original creator (or, re-arranger of information) is deprived of is the monopoly right to reproduce and therefore make money out of it. If anything, he is thieving from the rest of the population.

And even more convincingly, Kinsella argues that if the justification for intellectual property was taken to its full conclusion, there would be little room for development of humanity – every human act could be patented. Imagine if one pre-historic individual was granted the sole legal right to chop down trees with the aid of a piece of rock attached to a stick: the human race would die out within months!

This could be the one persuasive argument to subjectivists, seeing as they mostly share the goal of avoiding the death of the species.

Patenting, to Kinsella, then, is neither justified, nor enforceable without the presence of the state. The state’s own guidelines for patents are essentially arbitrary anyway – why must the individual re-apply for the patent after a certain number of years? Do rights have a time limit?

On the other hand, copyright could feasibly be enforced through contracts. Much like a trade secret agreement with employees, a book company could specify in their contract with the customers that they must not copy their books. However, once released, the book is ‘out there’, and those not involved in the original contract would be able to copy it without retribution. There would therefore be little point in specifying such a thing in a contract.

Stephan Kinsella points out with emphasis that modern intellectual property enforcement benefit the big corporations and not much else. Leading industry figures in favour of IP, such as Bill Gates and the late Steve Jobs, despite building their respective companies on borrowing and improving existing ideas, have only achieved restriction of competition in their defence of it, which is good for neither small business nor consumer.

The appendix is welcome comic relief, listing what Kinsella calls ‘questionable’ real-life examples of patent and copyright. The highlight is the mechanical ‘back-patter’.