My article Intellectual Property and Libertarianism was published today in Mises Daily; a previous version, without endnotes, was published in Liberty. The article is based in part on a speech at Mises University 2009 (July 30, 2009; audio; video) and also on my What Libertarianism Is, which contains references not present in the Liberty paper (as does The Case Against IP: A Concise Guide).
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Stephan Kinsella is a libertarian writer and patent attorney in Houston, Texas. He has published widely on various areas of libertarian legal theory and on legal topics such as intellectual property law and international law. His publications include Legal Foundations of a Free Society (Papinian Press, 2023), Against Intellectual Property (Mises Institute, 2008), and International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford, 2020).
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I read your IP article on Mises. I agree with much of it, but I’m still not fully convinced by your refutation of IP through contract.
If I come up with an idea, certainly I have a right to privacy–to not have it coerced out of me or discovered by someone rummaging through my personal files (my property) without my consent, right? Shouldn’t it follow that I can contract with someone that I will reveal my idea or intellectual work to them under certain restrictions or with some predetermined compensation or prior understanding that they will not use it unless we come to an agreement on compensation?
Secondly, why wouldn’t it also be possible to, say, release a work of art under the stipulation that the buyer not copy it OR allow anyone else to copy it?
Thanks,
Mike
Mike, contract is about the exchange of goods, inanimate objects, not of people or their rights such as liberty.
You cannot bind people to silence or non-disclosure. You can only make non-disclosure a pre-condition to an exchange, e.g. “If the contents of this report do not become spidered by Google during the next year then I will pay you $500 as a non-disclosure bonus”.
Or, you can say “If we discover you have published the secret recipe we’ve disclosed to you in your manufacture of our cookies we will terminate your employment immediately”, but not “…you must pay us a fine of $5 million or serve 5 years imprisonment.”
In other words people are naturally at liberty to disclose any knowledge or intellectual work legitimately obtained (where such disclosure does not needlessly endanger life). A contract is not ‘bespoke legislation’, but a voluntary and equitable exchange.
It is only indoctrination through the unethical privilege of copyright that gives people the notion that they should have the power to constrain the speech of their fellows, the circulation of the confidences or intellectual works they would convey.
Privileges, being transferable, can be exchanged through contract. However, despite the abusive use of the term ‘right’ in ‘legal right’ (privilege), that leads people to assume that all ‘rights’ can be exchanged through contract, natural rights are inalienable and cannot be exchanged. Copyright and patent are privileges, not natural rights.
Crosbie,
I don’t think I understand your position. Are you saying that “I’ll tell you my ideas if you give me $100” is not a legitimate exchange?
Aren’t we contracting our liberty whenever we go to work for someone else? We’re selling our labor–agreeing to produce ideas, information, and physical products for them in the future in exchange for compensation. If you agree to do a service for someone, is that not a valid exchange?
Doesn’t libertarianism usually assert that our bodies are our own property and that our right to external property is just an extension of that right? It seems to me that contract is ALL about the exchange of rights.
Exchange of intellectual work for money is indeed ethical. It is the attempt to constrain the recipient’s liberty that is not.
Employment is an exchange of labour, not liberty. You may be thinking of slavery, i.e. sale of oneself into bondage (whether for a month or for life).
Property is a derivative of the right to privacy (bodily possession, occupation, homesteading, etc.), and extended by social consent to allocate, of land, etc. You exchange objects and custody, not natural rights or people.
I don’t think I would call it slavery if it’s voluntary. It seems to me that the only difference between exchanging your labor and what you’re calling slavery is that labor contracts usually provide for the option of ending the agreement (quitting your job) whenever you want, as long as certain obligations are fulfilled (i.e. all accounts are settled). But it seems to me that you could agree to not include such a provision and it would be legitimate–it would just be really stupid.
But I guess what you’re saying is that a contract that says, “I’ll run around in circles if you run around in circles” isn’t legitimate? I don’t understand how this is any different from a service.
I don’t know if “exchanging rights” makes sense or not, but it seems to me to be more of a matter of semantics. As far as exchanging people, you definitely cannot contract to make a third party do something without their consent. I agree with you there. That’s not what I’m talking about, though.
I guess a better way to put my example above would be, “I WON’T run in circles if you don’t run in circles”
My point is, I don’t see the difference between agreeing to perform an action as part of a contract and agreeing NOT to perform an action as part of a contract.
The exchange of labour is: “If you expend effort in this area to my satisfaction giving me any product, then I’ll give you $X.”
Slavery is : “If you give me the exclusive privilege to compulsorily extract labour from you for one month, and deliver labour to my satisfaction, then I’ll give you $X.”
Notice how in the former you retain your liberty to choose whether or not to work, whereas in the latter you have surrendered that liberty.
It is a pity so many people believe that an employment contract constitutes bondage. Or for that matter, that contracts constitute a trump card that enables an individual to alienate themselves from their natural rights where the law cannot. 🙁
I don’t see your logic.
I view “natural rights” as the default set of rights that you have before you contract.
I have a natural right to my property, time, labor, etc. When I enter into a contract, I agree to exchange some of those rights for some of someone else’s rights. If this were not so, then contracts would be impossible.
I’m not trying to be difficult… I just really don’t see where you’re going with this.
Mike, you don’t exchange rights. Rights are like fences. An exchange is the transfer of objects across them. My rabbit skins for your baskets. Neither of us even momentarily surrenders the protection of our fences – our rights.
Just because you offer me baskets, that doesn’t compel me to supply rabbit skins. I remain at liberty to decline your offer.
Just because you offer me $100 if I wash your car, that doesn’t suspend my liberty, and enable you to coerce my labour. Even if I say, “Sure, that’s a deal”, I still remain at liberty, e.g. “Sorry Mike, something’s come up, get someone else”. You can’t say “No. You agreed. You are now my slave who I can coerce to wash my car, with severe penalties if I am not satisfied, and a reward of $100 if I am”. All a contract does is stipulate an agreeable and equitable exchange. It doesn’t enable either party to submit themselves to the other’s will. Of course, there are many who would like contracts to have this power (and many who believe they do).
Well, I equate rights with ownership and property. Having a right to something means I own it and can control it. When I give something to someone else in an agreeable exchange, I no longer have the right to control it, and now they do. That’s all I’m saying.
I still don’t understand where you draw the boundaries of contracts, and what you base that on. An “agreeable and equitable exchange” is entirely relative and up for each individual to decide. In the example you gave above, I would agree with you. Except that if you washed my car and then I refused to pay you, you would have the right to my $100 and would be entitled to get it from me against my will. The same is true if I paid you and then you didn’t wash my car.
You say that contracts don’t allow people to submit to the other’s will, and yet that’s exactly what contracts are–Each side agrees to submit to the other’s will during the exchange. If you accept their exchange but don’t submit to the other’s will, that’s fraud. Liberty just means the right to make your own decisions. It doesn’t mean the right to change those decisions once you’ve made a promise to follow through on something.
Mike, you may be mistaking the privilege of copyright or patent for a natural right. The privilege enables you to deny another their liberty to do something, e.g. use a design, or copy something in their possession. That privilege is not a natural right, and shouldn’t be used to inform your understanding of what natural rights are.
Rights do not attach to objects, but are innate to human beings. It is your right to privacy, your natural power to exclude others from the space about you, the buildings you inhabit, that means you have exclusive control over what you possess within that space. The objects in your private domain (that you create, gather, or receive as gifts or in exchange) are your private property.
Of course a contract is a matter of mutual and subjective agreement as to equitability (barring deceit/fraud).
The remedy of a contentious contract is to complete it, revert it, or achieve equitability through the exchange of property, not to force people to work against their will. If I take your $100, either I wash your car or I give you your $100 back. You don’t get to compel me to wash your car against my will. Similarly, if I wash your car and you don’t pay me, well you still don’t lose your liberty and become my slave. If we can’t complete our contract or revert it, we can refer to an arbitrator to determine the fairest remedy given evidence of what the agreement was and what had been exchanged so far.
Liberty includes freedom of action, movement, speech, anything that does not violate another’s right. A contract cannot alienate its parties from their liberty, only that which can be alienated, i.e. their property. So, when I agree to wash your car in exchange for $100 next Saturday, that doesn’t mean I’ve surrendered my liberty not to wash your car. It just means that if I don’t meet the conditions of what we had agreed (washing your car on the Saturday) I don’t get your $100.
It can be seductive to think a person can surrender themselves to you (power over another can be attractive), but this is contrary to natural rights libertarianism. Of course, in a society that does permit slavery, and the ability for people to alienate themselves from their natural rights, then contract would behave as you suggest.
No, I ‘m not talking about copyright at all right now–we obviously have a much more fundamental disagreement. I don’t view copyright as a natural right or a right at all.
I’m not saying that objects have rights, I’m saying that people have rights TO objects, and that when I give you the ownership to an object that I previously owned, I give up my right to it. The right to an object doesn’t depend on who physically possesses the object or where it is physically located.
“If we can’t complete our contract or revert it, we can refer to an arbitrator to determine the fairest remedy given evidence of what the agreement was and what had been exchanged so far.”
If I didn’t have to follow through with the original agreement (by your logic), why should I be able to be “coerced” into following the arbitrator’s decision?
I’ve never heard such an interpretation of natural rights. Do you have a link or a good book that describes this view?