Within libertarian circles, opposition to intellectual property has become more popular in recent years, and among anarcho-capitalists is almost certainly the majority position. While some of the earlier anarcho-capitalist literature (e.g. Linda and Morris Tannehill’s The Market for Liberty) endorsed IP with the assumption that it was a necessary propertarian institution, the works of N. Stephan Kinsella and others have been instrumental in making the “natural rights”-based arguments which characterize IP as inconsistent with libertarian conceptions of property.
Here I will attempt to demonstrate that these arguments are plagued by inconsistency and beg the question with regard to the definition of property. My claims, while not novel in all respects, hopefully will present some important insights into the nature of property rights in libertarianism.
The Scarcity Theory of Property
To avoid the possibility of “strawmanning” these claims, I will produce the following quotation (from Kinsella’s Against Intellectual Property, pp. 28-9), which characterizes a common anti-IP argument regarding scarcity and the role of property:
"Let us take a step back and look afresh at the idea of property rights. Libertarians believe in property rights in tangible goods (resources). Why? What is it about tangible goods that makes them subjects for property rights? Why are tangible goods property?
A little reflection will show that it is these goods’ scarcity—the fact that there can be conflict over these goods by multiple human actors. The very possibility of conflict over a resource renders it scarce, giving rise to the need for ethical rules to govern its use. Thus, the fundamental social and ethical function of property rights is to prevent interpersonal conflict over scarce resources. As Hoppe notes:
'[O]nly because scarcity exists is there even a problem of formulating moral laws; insofar as goods are superabundant (“free” goods), no conflict over the use of goods is possible and no action-coordination is needed. Hence, it follows that any ethic, correctly conceived, must be formulated as a theory of property, i.e., a theory of the assignment of rights of exclusive control over scarce means. Because only then does it become possible to avoid otherwise inescapable and unresolvable conflict.'  "
The argument is that, for rivalrous or scarce goods, the absence of a means to limit access will result in violent conflict. From an economic standpoint, the claim makes sense, and tends to be borne out by reality.
But it is far from a deontological claim; in fact, it is a form of the consequentialism Kinsella, Hoppe et. al claim to oppose! Someone who supports a property system on the basis of the scarcity problem expresses a preference for the absence of violent conflict; that is, he or she demonstrates a subjective desire for some set of consequences (in this case, peaceful society) by acting (in this case, arguing for propertarianism along such lines).
So if scarcity arguments for property are acceptable, then why not arguments based on other possible consequences? After all, resolving the scarcity issue is not the only purpose of property. Property rights also provide incentives to create capital, means for trade to occur (and thereby division of labor, which is arguably the impetus behind morality), prevention of externalities, and justice or fairness by whatever standards are preferred (e.g. “fruit of one’s labor” claims), among other things. What, then, is inherently wrong with favoring the imposition of a moral system which includes IP if one believes it will promote innovation? Perhaps one can be wrong about the latter assumption, but one is still only demonstrating a preference for a moral rule based on its consequences.
Conflicts Between Different Types of Property
As we have seen, the usual “natural rights” arguments tend to arbitrarily single out scarcity as the only important issue which property is intended to resolve. Aside from this, it is also argued that IP is forced upon others, as a holder can forcibly prevent others from using their property in a way which violates his or her IP claim. As explains Kinsella in Against Intellectual Property (pp. 35-6):
"Let us recall that IP rights give to pattern-creators partial rights of control—ownership—over the tangible property of everyone else. The pattern-creator has partial ownership of others’ property, by virtue of his IP right, because he can prohibit them from performing certain actions with their own property. Author X, for example, can prohibit a third party, Y, from inscribing a certain pattern of words on Y’s own blank pages with Y’s own ink.
That is, by merely authoring an original expression of ideas, by merely thinking of and recording some original pattern of information, or by finding a new way to use his own property (recipe), the IP creator instantly, magically becomes a partial owner of others’ property. He has some say over how third parties can use their property. IP rights change the status quo by redistributing property from individuals of one class (tangible-property owners) to individuals of another (authors and inventors). Prima facie, therefore, IP law trespasses against or “takes” the property of tangible property owners, by transferring partial ownership to authors and inventors. It is this invasion and redistribution of property that must be justified in order for IP rights to be valid."
To illustrate the problem with this argument, suppose we have a left-anarchist of some sort who claims that individuals have just claims around the use of their physical body, or, in other words, “own themselves” (although that may not be the phrasing such a person would use). However, this individual denies the supremacy of “homesteaded” property, or of State-controlled property.
This fellow argues, “If I entered a grove of fruit trees and intended to pick apples, a farmer might come along holding a pitchfork and tell me that I must leave his orchard. If I refused, exercising my right to control the use of my body as long as I did not directly assault someone else’s body (and I am not assaulting the farmer directly), the farmer would repeat his order and say that if I did not leave, he would remove me forcibly. He might promise to use as little force as possible while evicting me from the premises, but he still is assaulting my body directly and thereby denying my right to self-ownership by trying to enforce his ‘physical property’ claim. Clearly, his ‘physical property’ is a violation of my actual property rights, and his actions are therefore unjustified.”
What is the problem here? There is one clear logical error: our left-anarchist friend is begging the question. He claims that the farmer’s orchard is not “valid property” because it violates the property rights of those who might try to enter and take, use, or modify parts of it. However, he is only able to “prove” this by classifying property exclusively as human bodies, owned by their inhabitants. The same faulty argument is used by statists to justify a “social contract” where tax payment is mandatory and tax evasion is considered theft from the State, because property which is supposed to be seized in taxes is not “valid property”.
If one assumes that property is defined as “homesteaded physical property” and nothing else, then yes, one can prove that IP is not valid. But since this requires assuming the very conclusion one seeks, it is not useful for finding what property is in general. It is possible for intellectual and physical property to coexist just as physical and bodily property can coexist; the different systems interact under principles outlined in the overarching property rights system in question.
In other words, to say, “intellectual property is not property because it violates property rights” is to make a circular argument.
The Problems With Objective Ethics in General
The problems with the “natural rights” anti-IP arguments reflect problems with arguments about objective ethics in general. While I do not wish to devote too much time to this issue, I will say that I believe the meta-ethical “is-ought problem” is insurmountable. I have not seen any convincing arguments to the contrary, and it seems that “ought” statements have the idea of a preference for one state (lowercase ‘s’, not the polity) over another inherently ingrained into them. “Ideal forms” arguments, for instance, involve subjective value judgements over what is “ideal”; theistic arguments, even if God did exist (which I doubt), are still the “preferences” of the God or gods in question; Kant seems to like the concept of moral laws being “universal”, but that preference is subjective, and so on. In other words, I believe the “third-grader” approach to morality of simply asking “Why?” repeatedly will never lead to anything but a subjective preference.
This is not to say that I have no personal morality. I support libertarian ethics regarding polycentric law and free markets and support individual rights along libertarian lines, but these are just my preferences, and they only exist as means to my desired ends, not ends themselves. The following resources convey some (not all) of my personal views on ethics:
Libertarianism is Not 'No Gun in the Room' by Niels “Nielsio” van der Linden
The Utilitarian Foundation of Morality by Daniel James Sanchez
Crusoe, Morality, and Axiomatic Libertarianism by Nielsio
Am I an IP “apologist”?
No, not at the moment. I believe in a general presumption against IP, and I tentatively support the hypothesis that IP law would yield consequences I find unfavorable (namely, rent-seeking, patent gridlock, less innovation of most types, legal uncertainty, et cetera). For more on this, see Against Intellectual Monopoly by Michele Boldrin and David Levine and this blog post by Stephan Kinsella.
However, I do believe that polycentric courts could theoretically enforce IP laws in the same way that they would enforce rights in physical and bodily property and associated freedoms of contract. I am also willing to be convinced that some IP protections could be justified by economic consequences I find favorable. While IP does have substantial transaction costs, some of the other mechanisms for innovation incentives do as well, and if IP laws could solve a coordination problem more efficiently by a standard I agreed with, I would support them.
Finally, I should say that I do not believe that the arguments of Kinsella and others who oppose IP are of no value. The discussions they have prompted about libertarian legal theory, libertarian ethics and meta-ethics, and consequentialist examinations of IP have all been useful in helping us to define various aspects of what we believe. Certainly Mr. Kinsella is not a fool, and I do respect his works. But I must speak out against the developing “consensus” that IP is objectively unjust, because I value the importance of truth in the arguments we present and find the natural rights arguments to be erroneous.