Anarchist Libertarian Jan Lester’s Argument for Intellectual Property

by Stephan Kinsella on April 1, 2014

Starting around 1:30:00, another deeply flawed attempt to argue for intellectual property. It’s made all the worse in that it comes from an anarchist libertarian, J.C. Lester, author of Escape from Leviathan: Liberty, Welfare and Anarchy Reconciled (conspicuously not online yet. Why some people take time to write books but don’t want to make their ideas accessible is a perennial mystery—but in tune with the IP idea, I suppose). His entire Popperian “conjecturalist” approach is in my view flawed, as his is view that libertarianism is about reducing “impositions,” instead of aggression. See my discussion of some of this in “Aggression” versus “Harm” in Libertarianism. See transcript below.

Grok: Kinsella’s Response to Lester

A Response to Jan Lester’s Defense of Intellectual Property

As someone who’s been arguing against intellectual property (IP) for nearly three decades—starting with my early pieces like “Letter on Intellectual Property Rights” (1995) and culminating in works like Against Intellectual Property (2001) and my recent monograph The Problem with Intellectual Property (2025)—I’ve encountered just about every pro-IP argument under the sun. Jan Lester’s talk, “Intellectual Property: Non-Aggressive Meme Propertarianism,” is no exception. While I respect Lester as a fellow anarchist-libertarian and appreciate his Popperian influences (we both draw from critical rationalism, though in different ways), his defense of IP is riddled with confusions and missteps. It fundamentally misunderstands the nature of property rights, conflates harm with aggression, gets tangled in his own conjecturalist framework, and even mischaracterizes actual IP law. Let me unpack this step by step, drawing from my own work on the subject (see c4sif.org for a comprehensive archive).

First, a bit of context: Lester premises his argument on a theory of liberty as the “absence of proactively imposed constraints” (what he calls “impositions”). He then tries to shoehorn IP into this as a form of non-aggressive property right in “memes” (ideas or intellectual objects). But as I’ve argued extensively—most recently in chapters 5 (“Causation and Aggression”) and 6 (“Law and Intellectual Property in a Stateless Society”) of my book Legal Foundations of a Free Society (LFFS, 2023)—this approach gets it backward. Property rights aren’t about minimizing vague “impositions” or harms; they’re about preventing aggression—the initiation of force against others’ legitimately owned scarce resources. Lester’s focus on “impositions” leads him astray, much like Patrick Burke’s error in No Harm: Ethical Principles for a Free Market (1994), where he conflates harm with rights violations to justify things like bans on blackmail or defamation. (I critique Burke similarly in LFFS, ch. 5, and in my 2009 post “Aggression versus Harm in Libertarianism.”)

Disagreement with Lester’s Critique of Justificationism and His Conjecturalist Approach

Lester lambasts most libertarians for being “bitten by justificationism,” accusing them of seeking epistemological foundations for liberty through a priori reasoning, natural rights, utilitarianism, or even Austrian economics. He favors a “conjectural” approach inspired by Popper’s critical rationalism: liberty is a desirable conjecture to be criticized, not justified. But here’s the rub: Lester’s own framework is riddled with the very justificationism he decries. He conjectures that liberty (as minimal impositions) is desirable, then builds an elaborate defense of IP on top of it, complete with arbitration processes, fair use conceptions, and time limits based on “likely independent invention.” This isn’t pure conjecture—it’s an attempt to justify a system of IP rules under the guise of libertarian theory.

As I’ve explained in LFFS (ch. 2, “What Libertarianism Is”) and in my discussions of Hoppe’s argumentation ethics (e.g., “Argumentation Ethics and Liberty: A Concise Guide,” 2011), libertarianism doesn’t need endless conjectures or anti-justificationist hand-waving. Rights emerge from the logic of human action and discourse: when we argue or act in society, we presuppose norms that favor self-ownership and homesteading of scarce resources. Lester’s conjecturalism, by contrast, leads to arbitrary outcomes—like his bizarre suggestion that painting your house blue could be IP-protected until someone else “likely” invents it independently. This isn’t criticism-proof; it’s ad hoc and unmoored from the core libertarian focus on conflict avoidance over scarce goods. In short, Lester critiques justificationism but then justifies a pro-IP regime that’s anything but conjectural—it’s prescriptive and state-like, even if he calls it “anarcho-libertarian.”

Lester’s Confused Understanding of Intellectual Property Law

As a practicing patent attorney for over 30 years, I can spot when someone opines on IP without grasping its legal realities. Lester starts by disclaiming any discussion of “what any state law on intellectual property actually says or does,” focusing instead on applying “libertarian theory” to the IP concept. Fair enough for a thought experiment, but this detachment leads to errors. For instance, he analogizes owning an “intellectual object” (meme) to owning a physical object, claiming that “to own the rights of use just is to own the physical object itself.” But this misses the point: IP law doesn’t grant ownership of ideas per se; it grants monopolies over expressions or implementations (e.g., copyrights protect fixed works, patents protect novel inventions reduced to practice). Lester’s “meme propertarianism” invents a perpetual, shareable IP right limited by “likely independent creation,” which isn’t how real IP works—patents expire after ~20 years, copyrights after ~life+70, and neither cares about independent invention (that’s a defense only in some cases, like trade secrets).

In my monograph The Problem with Intellectual Property (sec. IV), I explain that IP isn’t true property—it’s a state-granted privilege that redistributes control over physical resources from owners to IP holders. Lester’s proposal for arbitration to decide “fair usage” or “dissimilarity” thresholds just recreates the vagueness and arbitrariness of current IP law, which I’ve critiqued in pieces like “You Can’t Own Ideas” (2023). He ignores how IP stifles innovation in practice—e.g., patent trolls, copyright takedowns—and his “private enforcement” fantasy doesn’t fix the underlying injustice.

Lester’s Confused Understanding of the Nature and Justification of Property Rights

Lester flips the script on property rights, prioritizing “liberty” (minimal impositions) over self-ownership and homesteading. He claims many libertarians are “self-ownershiparians or private propertarians” who don’t center liberty, calling for a “Copernican revolution” putting liberty first. But as I argue in LFFS (ch. 2), this gets it wrong: property rights are the foundation of liberty. Self-ownership is the starting point—each person owns their body because they are the first user—and homesteading extends this to external scarce resources to avoid conflict.

Lester’s error is treating property as derivative of liberty, leading to odd conclusions like IP being “libertarian” if it doesn’t “impose” beyond independent invention. But property rights justify themselves by enabling peaceful cooperation over scarce goods; IP, by contrast, creates artificial scarcity in non-scarce ideas, aggressing against real property owners (e.g., you can’t use your own paper to print a “protected” book). In “Against Intellectual Property After Twenty Years” (LFFS, ch. 15), I note that critics like Lester conflate value-protection with physical integrity—protecting a book’s “value” isn’t the same as protecting your land from trespass. Hoppe nails this in his work: rights protect physical integrity, not economic value (see my 2011 post “Hoppe on Property Rights in Physical Integrity vs Value”). Lester’s approach justifies aggression to prevent “impositions,” undermining true property rights.

Lester’s Confused Concept of Imposing Harm vs. Focusing on Aggression

This is the crux: Lester’s “proactive imposition” standard blurs harm and aggression. He argues IP doesn’t impose if others aren’t “worse off” than if the idea never existed, or if limited to pre-independent invention. But as I elaborate in “Aggression versus Harm in Libertarianism” (2009), libertarianism prohibits aggression—uninvited physical invasion of owned resources—not mere harm. Harm from competition (e.g., a new inventor “harming” your market) isn’t aggression; it’s peaceful. IP, however, is aggression: it uses force to stop you from using your own property (e.g., your computer to copy a file).

Lester’s examples—like secrecy being like not taking produce to market—ignore that IP aggresses against others’ physical property to protect “memes.” In LFFS (ch. 6), I show IP grants veto rights over others’ resources, violating self-ownership. Defamation, which Lester might analogize, is similar: it’s “harm” to reputation (value), not physical aggression (see my 2024 paper “Defamation as a Type of Intellectual Property”). Hoppe’s distinction is key: rights shield bodily integrity, not subjective value. Lester’s imposition-focus could justify all sorts of unlibertarian restrictions, like banning competition to avoid “harming” profits.

In sum, Lester’s pro-IP stance, while clever, collapses under scrutiny. It stems from a flawed liberty-first view that dilutes property rights and equates non-aggressive harm with invasion. True libertarianism abolishes IP to protect genuine property and freedom. For more, see my collections at c4sif.org or You Can’t Own Ideas (2023). Jan, if you’re reading this—let’s debate it sometime.

Transcript

Introduction to Jan Lester and His Work

Timestamp: 1:19:22

Thank you. Our last speaker is Jan Lester. He’s a philosopher specializing in libertarianism. Apart from articles, dialogues, and book chapters—many available online—he’s the author of Escape from Leviathan: Libertarianism Without Justificationism, which was published in paperback last year, and Arguments for Liberty, which was published in 2011. The title of his talk is “Intellectual Property: Non-Aggressive Meme Propertarianism.” Please welcome Jan Lester.

[Music and Applause]

Timestamp: 1:20:04

Jan Lester: Thank you. Actually, Jan is a Cornish name, the only place in the world where there are male Jans. I’m going to have to talk briefly about liberty because this entire discussion is premised on my theory of liberty. Without that as a background, it won’t make sense. A lot of people who call themselves libertarians, from my point of view, aren’t really libertarians. They’re self-ownershiparians or private propertarians, but they don’t prioritize liberty first and foremost. For me, this is a big problem. We need some sort of Copernican revolution that puts liberty at the center and then explains everything else, rather than assuming private property and then trying to talk about liberty. This should become clear fairly quickly.

Defining Liberty and Its Importance

Timestamp: 1:21:03

Liberty, as I shall be reading—because, as Karl Popper used to say, what I write is cleverer than I am—is most broadly understood as the absence of constraints. Libertarians are interested in social or interpersonal liberty: people not being constrained by each other in the sense of proactively imposing or, if you like, aggressing. Without such proactive constraints, it follows that people will immediately control—that is, in effect, own in a de facto sense—themselves and any external goods they come to acquire without proactively imposing. Thus, people have liberty to the extent that they are not proactively interfered with in their bodies or external property.

Various problems and paradoxes can be posed. For instance, can someone secretly buy all the land around you and then not let you out? Can light waves from a few electric lights on one’s own property trespass onto others’ property without their permission? Such problems can be solved by reverting to the more abstract pre-propertarian principle: to follow whichever rule will minimize such impositions. So, generally, a right of access to one’s land and a right to have some light without a blackout are the lesser impositions than their opposites.

Timestamp: 1:25:03

What libertarians usually say about some other ideological conceptions of liberty is that they are not about interpersonal liberty at all but rather about power, ability, opportunity, self-realization, or any number of other distinct things. However, it would be foolish to argue about the mere use of words. So, if people want to define liberty in some other way, then let them. But the libertarian is advocating liberty only in more or less the sense explained.

Why should people have liberty? It is a conjecture that this is desirable. It is better to criticize the conjecture in the critical rationalist manner than to ask for supporting reasons. But it ought to be understood that libertarians typically also suppose that there is no systematic clash with human welfare. One can, of course, explain how libertarians think liberty will operate, and such explanations abound. But an explanation is not a justification, and it is itself conjectural. Most libertarians are bitten by justificationism, like most people, and so they attempt to offer epistemological support for libertarianism by reference to a priori reasoning, Austrian economics, autonomy, contractarianism, natural rights, utilitarianism, eudaimonism, or whatever happens to be the latest justificatory fashion.

Intellectual Property and Libertarian Theory

Timestamp: 1:25:16

So, that’s approximately the theory of liberty and how it relates to property. Now, intellectual property is a bit different. To avoid possible confusion, please note that this is not a discussion of what any state law on intellectual property actually says or does. It is about the application of a libertarian theory to the concept of intellectual property.

It is sometimes asserted that people only ever own, and conceivably can only ever own, specific rights of use concerning the expression of an idea rather than own the intellectual object itself. However, one could equally well assert something analogous and more obviously erroneous of a physical object: people only ever own, and conceivably can only ever own, specific rights of use concerning a physical object rather than the physical object itself. But to own the rights of use just is to own the physical object itself. Therefore, to the extent that there is protected use and control of an intellectual object by someone, there seems no reason to deny that this is owning that intellectual object—or, as I shall occasionally say, partly for brevity, a meme.

Some memes might be independently discovered or created. Most patented ideas, usually someone else would have come up with them eventually. Some are not. Most copyrighted works, no one would have written the same novels if Charles Dickens had not done so. This distinction matters because anyone’s intellectual property that is allowed to extend beyond likely independent discovery or creation is thereby likely to proactively impose on other people. Conversely, that others are not worse off than if some example of intellectual property had never been created appears to show that it does not proactively impose inherently. Or at least one person would always be worse off as a result of the intellectual property.

Timestamp: 1:30:16

If it were somehow naturally impossible to use an idea without its creator’s permission, then people would be unlikely to complain that they were proactively imposed on by this, as they would see that they were not. Thus, one defense of intellectual property is that it is libertarian to allow it and unlibertarian to disallow it, up until any likely independent production would emerge, if it ever would. It would be shared with any who could demonstrate that they probably would have eventually become independent creators of it, or with everybody if, eventually, by a certain time, it would likely have been invented or discovered anyway. When all claims run out, it becomes common property by entering the public domain.

Some kind of impartial decision or arbitration process, taking account of the pace at which relevant memes are produced, might therefore be needed to determine the likely time limit in each case. It would also need to decide how dissimilar from a particular idea would still count as using that idea and decide on some conception of fair usage. For instance, would discussing, parodying, or satirizing it count? And how does this affect gifts, sales, rentals, or loans that were not authorized by the original IP holder?

Criticisms of Intellectual Property Among Libertarians

Timestamp: 1:30:36

Intellectual property is controversial among libertarians. Many are skeptical or critical, including for some of the following significant, but not exhaustive or collectively consistent, reasons:

It is a state monopoly and widely abused.
It prevents people from doing what they like with their own physical property.
If you don’t want people to know about your ideas, then you can simply keep them secret, as happens with some ingredients for commercial food and drink products, for instance.
Ideas are not finite as the physical world is, so intellectual property does not help to deal with the problem of scarcity as physical property does but actually creates an artificial scarcity.
A sufficient amount of intellectual production can be stimulated simply by the profitability of being the first to market.
Contracts with purchasers not to copy, etc., can produce sufficient protection to make intellectual production profitable.
Technological devices can legitimately help to prevent copying.
Suppose someone sells a product in a new geographical area or markets a product in a new way; then it seems that the innovator could claim a form of intellectual property not to be copied in that way, which would thereby interfere with the normal and apparently libertarian and efficient parts of market competition.
I paint my house blue, and you want to copy me. Should I be allowed to forbid this or charge you? Could it be libertarian or efficient to have ownership of such trivial ideas?

Defense of Intellectual Property Against Criticisms

Timestamp: 1:35:16

Taking these nine criticisms in order, libertarian intellectual property might be defended along the following lines:

There is no necessity for the state to be the organization that enforces intellectual property, and the fact that state intellectual property has often been abused does not reflect badly on private enforcement. Intellectual property is only a monopoly in the same sense as owning any single physical thing. I’ll come back to this in a minute.
You cannot do what you like with your own property when it interferes with the property of others. It merely denies the thesis without an argument to assert that you are doing nothing with anyone else’s property by copying someone’s book, thereby using their ideas and selling your own physical versions. If intellectual property is libertarian, then you are using their intellectual property as though it were your own.
Keeping ideas secret often means not using them. In such cases, advising secrecy is analogous to saying, “If you don’t want people to steal from your store, then don’t take your produce to market.”
Each idea is a single thing in the memetic realm—what Karl Popper calls World 3—and thus is scarce. Examples or uses of the idea in other minds (World 2) or the physical world (World 1) are not the idea itself. If you can use my idea as you wish when I would rather own it, then I am proactively imposed on, just as much as if you used my physical property against my wishes. I might not know that you have used my intellectual property or that I have suffered a financial loss, but that is also true of any physical property of mine. In both cases, there is an objective trespass involving another’s particular resource.

Timestamp: 1:40:16

Physical property internalizes externalities to a considerable extent and strongly tends thereby to be optimally economic and libertarian. The same seems to be true of intellectual property. To expect an inventor of an idea to have sufficient incentive merely by being first to market is significantly like expecting the creator of a physical product to sell what he can before people discover where his factory or farm is and then simply loot it without his consent. Even where it is still profitable, it will often be insufficiently profitable to stimulate an economic amount of production, setting aside the practical and theoretical problems of estimating this and comparing different systems for efficiency.
If every relevant product is sold subject to a contract that no user can copy it without permission, then that would stop copying using the ideas by all customers. But what if a non-customer can see or find out how something works or what it looks like? We can have no such contract with the mere observer. With certain memes, this could undermine all or most of the economic incentive to produce it. And as before, even where it is still profitable, it might not be optimally economic.
Technological devices that restrict using others’ ideas at expense, if they could somehow be made perfect for all products, then we would simply be back to a situation analogous with the natural impossibility of using others’ ideas but with all the added expense. If such anti-copying devices are in principle fine without limit, then why not simply allow the cheaper option of having intellectual property in the first place?
It is not clear that starting a new market practice should not be protected if protection is claimed, subject to likely independent invention. Counterintuitive though this may be, this would appear to internalize externalities and thus would tend to be, I would argue, libertarian and efficient.
Any intellectual property ownership needs to be claimed, and it cannot clash with any existing contracts, such as what and how house colors are allowed on, say, some privately run estate. It is not likely that many people would want to claim what is trivial, but such things are, after all, only trivial. In any case, we still have the limit of likely independent invention. Somebody would have thought of painting their house blue eventually.

Conclusion on Intellectual Property

Timestamp: 1:45:16

In short, intellectual property is an extension of property into the memetic realm for relevantly and sufficiently similar economic reasons, rather than perfect analogies, as to why it is libertarian and economic in the physical realm. It must have appeared strange when people first attempted to fence off land and claim exclusive rights of use. They had not, after all, even created the land. But those who claim IP have at least created it or built it in the framework of a pre-existing culture. To reject intellectual property is to be in favor of compulsory communism in the realm of ideas. Admittedly, however, this could not be anywhere near as disastrous as compulsory communism in the physical realm. Of course, this libertarian defense of intellectual property may well be mistaken, but it appears to give reasonably cogent answers to the listed current criticisms of intellectual property. As far as I can see, it ought at least to clarify and develop the debate to attempt to refute it.

All that being said, patents, copyrights, and trademarks are the most notable forms of intellectual property recognized in the world today. So, how far are they congruent with the outlined theory? They approximate to varying degrees in various different cases. Thus, in some cases, they are significantly better than nothing from libertarian and welfare perspectives, and in other cases, they are significantly worse. But if the theory provided here is substantially correct, then even within a statist framework, they can be ameliorated. However, this could not hope to match an anarcho-libertarian framework. And in either case, I hereby claim intellectual property in this theory of intellectual property. Thank you.

[Applause]

Q&A: Addressing Intellectual Property Concerns

Timestamp: 1:39:31

Audience Member: I just wanted to, in the spirit of Karl’s open society where everything can be discussed openly, I wanted to quote from a lecture earlier this year by J. Lester entitled “The Intellectual Property: Non-Aggressive Meme Propertarianism.” I don’t have any permission from the author. I will say that there is a scarcity of good ideas.

Jan Lester: Yes, I didn’t claim intellectual property of this particular talk, of course. Yes, there’s a scarcity of good ideas. What point are you making?

Audience Member: Okay, do that as often as you like. I was hoping you might be able to respond to one of my favorite arguments against such property, which is that if our end practical goals are to encourage the generation, the sharing, and the application of ideas for the betterment of humanity as a whole, I think you could make some fairly strong arguments that the latter two are not helped by intellectual property, and that it’s a sort of mixed bag on the first. I was wondering if you could perhaps respond to that general life point of view.

Jan Lester: In the short run, it might look like it would be better if there wasn’t any property and everybody has free access, but you’re undermining the incentive effect of allowing people to keep the fruits of their labor. It’s a very important part of this particular theory that you can only have as much as you actually created. So, for instance, if you beat somebody to the patent office by a little bit, say by a week or two, in all likelihood, you only get exclusive rights for that first week or two, and then the other guy gets it, and then somebody else, and so on. Eventually, it would become common property because somebody would have come up with it. You know, it’s sort of an obvious thing, and everybody was working on this problem. So, just to give you some incentive to have gone about it, you just get as much as some sort of independent judicial procedure or arbitration procedure decides is reasonable and no more. You have the incentive to produce it, and then after that, it’s everybody’s. For me, that’s just that process of internalizing the externalities—in this case, the beneficial externalities—insofar as you’re responsible for them is libertarian and efficient.

Timestamp: 1:45:16

I can’t see there’s any problem with it. I mean, the idea, you know, you say to somebody who writes a book—Harry Potter or Escape from Leviathan—the second that it comes out, somebody can just take it and make copies. I mean, what’s that? That must undermine the process of encouraging people to write such books. And what’s your loss if somebody creates something? Even if there’s perpetual copyright in something like a book, which there might or might not be, if a book could drop out of copyright in the sense that we don’t know anybody who inherited it and it’s been out of print for a long time, in which case, arguably, either it’s become part of the public domain, or it could belong to whoever first republishes it gets some sort of a claim. I’m not too positive on that, but it would all have to be worked out in terms of the extent to which they were adding value rather than simply being a nuisance to other people. So, I just don’t see any inefficiency inherently in intellectual property. I certainly think there are lots of bad intellectual property, in the same way that there are—I mean, you can’t look at the average corporation and say, “There you are, that’s what private property anarchy gets you,” because the whole thing is riddled through with state legislation and corruption. Intellectual property at the moment is riddled through with state legislation and corruption, so this is, I think, a completely different approach, I hope.

Audience Member: Yeah, I think, isn’t it about scarcity? I know that’s the point, as you said, but to me, it’s sort of the enforcement of law on property. You know, you have, like, Butler Shaffer and boundaries. What I read, he wrote that property must have boundaries, you must have claim to it, and you have control of it. You can’t really apply that to intellectual property, and I understand that. I’m just saying that how can you ensure it’s a matter of morality and social grace as to not, you know, rob you of your work and then claim it as my own? To enforce that as property, I mean, I suppose it’s about the definition of property, but scarcity for me is key.

Jan Lester: Well, an idea is a particular individual thing. In that sense, it is scarce. There’s only one Pythagoras’s Theorem, and it has very definite boundaries, such that you can come up with something that’s so different you say, “Well, that’s no longer Pythagoras’s Theorem; that’s something else.” So, it doesn’t even say anything about triangles. So, the scarcity is there. I don’t see any problem with boundaries, but we’re talking about intellectual boundaries rather than physical boundaries. But those intellectual boundaries seem to me to be quite coherent. Anything which is sufficiently similar to the original object is using that object without its creator’s permission and thereby not respecting the property rights of the creator.

Audience Member: Yeah, I can see that. I just think it’s a matter of boundaries in terms of the enforcement of it because, you know, what stage, when you’re copying Mozart or something, you know, how does it become common? At what stage does it become plagiarist, you know, whatever you like to call it?

Jan Lester: Yeah, of course, there’ll be difficulties, but then there are difficulties with private property. But you don’t say there are no boundaries. There are boundaries with private property; there are boundaries with intellectual property as well. And what you’d have to have is a system where, you know, arbitration by experts, with appeals, with evidence. Obviously, if there’s money involved, more will be thrown at it in order to make these boundaries precise. But in principle, I can’t see why somebody couldn’t say, “This tune is sufficiently like that tune that everybody knows that basically it’s a ripoff.” And maybe there’s some clever countervailing argument that the person could give: “I was brought up in the back of beyond where we had no radios.” And if he can really prove this, you could say, “Okay, in that case, you did genuinely invent it, and that’s fine.” So, that’s the sort of procedure that we’d have to go through, and it might be complicated and occasionally expensive, but then it’s complicated and expensive to go shopping. And you might think, if you are some sort of a socialist, “If only we didn’t have to bother with all this money, we just take what we want off the shelves and walk out with it. We wouldn’t need cash tills; we wouldn’t need checkout people.” I mean, things would go wonderfully. No, they wouldn’t. It would destroy the system. And not allowing people to keep the fruits of their intellectual products is a disincentive for them to continue. Your great minds in physics and inventors are disincentivized to continue. I think that’s the strongest argument for intellectual property, in my opinion. Well, except that, past a certain point, people don’t do it for the money, of course. So, I mean, it’s not—I’m not saying intellectual property is compulsory. I mean, you can certainly give ideas away if you want to, and a lot of physicists would because that’s not how they make their living, not by anybody who uses gravity from now on.

Timestamp: 1:50:16

Audience Member: First, about ideas being scarce. I think when you use the term scarce, you mean that ideas are something concrete, something we invent and something we get to know. But in terms of supply, like, really, when you have a supply of something, the raw material resources are really scarce because when you use them in one field, you have to decrease the usage in another field. So, you have to affect, in some way, production functions, production possibilities. So, when I, for example, steal your bike, you have to go on foot. But if I copy your bike, you can still use your bike. So, in terms of potential production possibilities, ideas are not scarce because once they are created, they actually increase the range of application of those ideas, and they increase production possibilities. Now, of course, there is some trade-off there. You are talking about incentives. When you create, give patents and intellectual property in some way, you give incentives to create new things, to come up with memes. But, on the other hand, you’re also reducing it on the other side. So, in general, it’s really hard to make a profit and loss analysis in there. But cannot we make a sort of Misesian antisocial argument, saying that if those things are not scarce and they increase our intellectual potential, and they basically say we can use our intellectual division of labor to use them as productively as possible, so we open up a completely new range of doing things? Isn’t it the case that this actually increases our production possibilities, so creating artificial scarcity in this sense actually decreases the potential? And to relate what you just said about the scarcity itself, the boundary, right? So, you cannot have an idea; actually, in terms of intellectual property, you can only own the particular implementation of the idea. And I cannot see justice in this. I cannot see why the person who invented GPS should have more economic claims on selling it than Einstein, the brilliant genius who is actually responsible for it, because without Einstein, there would be no GPS. Why should the person who invented GPS get all the credit rather than Einstein and his children?

Jan Lester: I think Barack Obama beat you to it on that last argument with “You didn’t build that.” Of course, we all rely on a background of culture, but insofar as some things are freely available for us to draw on, we don’t impose on anybody else. And insofar as we come up with some new twist, maybe not greatly novel, you know, maybe a silly Christmas toy or something, whatever ideas are, they’re not concrete. But the idea itself is one thing. The fact that anybody can be thinking about the idea, it can be in different people’s heads, doesn’t mean that those are all different ideas. There’s only one idea that other people happen to be thinking about, that one idea that you create. You want to be able to control that because, in many cases, that’s why you created it. To say there’s an artificial scarcity, as I said, in the sense that, “Well, we could use it, and you’ve still got your idea,” well, you could say, “Well, we can run off with what you’ve produced, and you’ve still got your factory or land.” Maybe if what you produce doesn’t cost too much to produce, you know, because it’s made out of very cheap materials or something. I think you’re just wrong about the artificial scarcity and that an idea somehow has a multiplicity to its nature. There is only one thing that is that idea, and to own that idea is to have some control over whether it’s used or not, in the same way that control over a piece of land is. The analogy there seems to be very strong.

Timestamp: 1:55:16

If you take away the incentive, immediately, at any particular time, you will probably get a sort of boost in production as people say, “Okay, now anybody can do anything with this.” But that means you just undermine—you’re killing the goose that lays the golden eggs, the golden eggs of ideas. Because they’re either not going to produce them a lot of the time, or they’re not going to tell you about them. So, it’s not that they get into the public domain for everybody to use; they’ll be kept out because we know that that’s the only way we can control them, maybe. So, I think the more significant effect and the more likely effect is it’s going to stop their production, and that’s what I’m worried about. And what’s so peculiar here is that people who understand how private property is efficient and how it tends to both efficiency and liberty somehow have this blind spot when it comes to ideas. And this is where I think Popper sort of helps because the reality of the intellectual realm has to be taken seriously. There are real problems, real solutions, symphonies, books, and whatever, and they exist in this sort of intellectual realm, which has an objective existence in the sense that anybody can check up on it and see what’s there and what’s not there and what the properties are. It has an objective existence, which is highly analogous with the physical realm. It’s not something airy-fairy, and what Popper does is he helps us to take that seriously. And I think when you do take it seriously, you just see, well, economics applies there as well, and it’s a highly analogous way in which it applies.

Timestamp: 2:00:16

There is no—the whole idea that artificial scarcity is completely wrong because there is only ever one intellectual object. When it’s created, a book, a poem, an invention is a single intellectual object. Copies of it are not it, but you cannot completely consume it; you cannot use it up. That’s the thing. Whereas with real property, you can consume it. You can’t consume the Earth; you can alter the state of the planet, but you can’t consume the planet. The planet will carry on being here unless there’s a big crunch. But I mean, almost all production is not really creation; it’s just changing matter from one state to another. In that sense, we never create anything; we simply move things around. But when you do something right now, you decrease the possible usage, at least on a certain time horizon, which is not the case with ideas. You do remove the use of the owner if the owner creates it in order to have control of it, and you steal that from him. You’ve then taken from him the one thing that he wants—the final benefit, the financial benefit.

Audience Member: But not the use.

Jan Lester: Maybe, maybe not the financial—no, no, no, the financial benefit is separate. The reason why he wants to control it might or might not be for money. It’s highly likely to be for money, but not necessarily. You may just say, “I’ve created this idea, and I want to decide who can use it and how, for whatever reason,” up until likely independent invention. And I always have to add this, of course, because, you know, it wouldn’t be either ad infinitum or set at some arbitrary limit. If plenty of other people might have come up with it, you will only get, say, the worth of what you’ve created, as it were, and the control of it up to that point. I just don’t see any realistic way in which you’re creating artificial scarcity. There is this one thing, like one idea, one hotel. There’s a hotel on this spot here; not everybody can own it, not everybody can use it. Somebody can have one idea; not everybody can own it, not everybody can use it. The owner of this hotel does what he or she or whoever likes with it. The owner of an idea should be able to do what—now, you can say you can introduce ways in which there’s artificial scarcity in the fact that not anybody can come in this hotel without permission or that sort of thing. I mean, the analogies between intellectual objects and physical objects are not perfect, but they’re certainly sufficient, as far as I can see, for the economic arguments to work just as well. And you just don’t need to say, “Oh, well, that’s just ideas; it doesn’t matter.”

Audience Member: So, given that one uses physical methods to defend physical property, what do you think of the idea that you could only use intellectual methods to defend intellectual properties?

Jan Lester: That’s so arbitrary. I mean, you can defend any kind of property in a whole variety of ways. Mostly, physical methods are a threat; that’s the last resort. You think it’s acceptable to use physical methods to defend intellectual property? Of course. I mean, if somebody writes a book, pirated copies are made of that book. If this—I’m sort of assuming in a society where this is understood and agreed that there can be intellectual property in a book—then you can seize the pirated copies and say, “I’m sorry, you’re just stealing the fruits of the labors of the person who created this book by copying it and then selling it.” Of course, it’s—I can’t see anything wrong with seizing. I mean, ultimately, if you’re going to protect property, force is what you fall back on if they won’t give in. You know, you give them a warning first, and you tell them to stop, and if they won’t, you say, “Okay, well, then we’re going to have to send in to damage their reputation so everybody knows that they’re not a pioneer in the field.” It’s very hard to damage the reputation of a pirate. I mean, that Kim Dotcom revels in his reputation of doing more or less what he likes with intellectual property without getting into the details. Sorry, it just provides a forum for exchanging ideas.

Audience Member: Yeah, well, I mean, it’s a complicated issue, and I can’t really get into it, but the point is you can’t shame pirates into changing their ways.

Jan Lester: Not a thing, but an action.

Audience Member: Sorry, so if I’m to argue it, I write a song. What I’m doing is translating a neurochemical charge that’s in my brain into my exercise of the administration of my body by moving my fingers over the board of my guitar. That is the limit; those are the complete limits of the extent of my property.

Jan Lester: Yeah, you’ve—when you write an idea down, you thereby sort of make it objective in a way, and that’s what Karl Popper calls World 3. Strictly speaking, we need more than Popper’s three worlds to actually make full sense of what’s going on here. There is the material world, there are minds, and there are memes. But before any of this, we may say there are modes—there are just ways of being in the abstract sense, and that’s really where ideas are. They’re completely abstract. Once you write them down, you’ve got them on paper; what you’ve got there is a key to how to get in touch with the idea. But the idea is—I mean, an idea isn’t an action. How can an idea be an action? A thought is a kind of action. If you say, “I’ve been thinking all day,” in a sense, you’ve been doing something. To think is to somehow move your brain around, you know. But there’s no way that the idea itself is an action. That’s like saying a hotel is an action. You needed action to create the hotel, but once it’s created, it isn’t an action; it’s just a thing.

Audience Member: But a hotel is a physical object; it’s concrete, sensible.

Jan Lester: Yeah, and an idea is an immaterial object, an inconcrete thing, but it still has boundaries and limits and can be understood and passed on. And there’s no problem in seeing what it is. I mean, it might be more complicated than we can fully understand, but so might this hotel. Nobody could ever know all the nooks and crannies of this hotel, but the nooks and crannies of a complicated theory may well exceed what people can easily grasp. But it’s—something in the realm of ideas is no less real. A prime number, the highest prime number, if there is one, is there; it is a particular thing, certainly isn’t an action. How can an idea be an action? You can adapt an idea without affecting the original idea. You might be stealing some of the original—

Audience Member: You can’t. So, if I want to adapt this glass, you know, change it, the glass would no longer be as is. But if I want to adapt your idea, your idea would still be your idea. You know, you could walk away with your idea, and it would still remain the same.

Jan Lester: Yes, yeah, well, this is where, you know, if I think I’ve had a pretty good idea for creating something that has value, and then you just take it and tweak it a bit, I will—maybe I would go to court and say, “Well, he just took my idea and tweaked it. I know he did add a little bit of value, but he’s taken his little bit of value and all of my original value, which he didn’t pay me for or, you know, have any contract.” And he should have had a contract with me to take my original idea and then do his tweak, and then we could have done a deal. Instead, you took the whole thing. So, the fact that an idea is overlapping, as it were, with another doesn’t mean you can say, “Oh, well, this is everything you said, you know, plus with a brass button on or something.” You know, so that’s just basically the same idea. Obviously, you’ve stolen the original idea. It’s not enough that it be distinguishable in some trivial way; it’s got to be genuinely original. But if you do have some genuine addition that has value, then that would be yours. But what you can do with that, of course, is trade with me or trade with other people concerning that. And how that would work out, I don’t know. I mean, it just all depends on whether I may say, “No, I refuse to allow you to put your addition onto my idea until my intellectual property runs out, which is another five years, according to the court that we went to last year.” Very hard to enforce legally, very hard to enforce legally.

Timestamp: 2:05:16

I don’t see why we’re talking about a more sophisticated libertarian future where intellectual property is taken seriously and dealt with precisely. Okay, another question.

Audience Member: I just, before my question, I was going to say that the action of the idea is a byproduct of the idea, so the thinking is original thought because the action is the birth; the idea isn’t. Sorry, I’ll direct, Sebastian. Well, yeah, basically, the idea is the original thought, and it’s not a verb because you’ve already thought about it. The thinking of the idea was the actual verb action, whereas the idea—I mean, that’s—

Jan Lester: There’s a natural confusion. This is why you need to get away from the language of “idea” because people think, “Well, if it’s an idea, then it’s in the brain, and it’s something that the brain is doing.” It’s—you think of, and I agree, that’s where you have your ideas. But once you’ve created the idea, as it were, what it is as an intellectual object isn’t in the brain; it’s completely abstract. Beethoven’s Ninth Symphony is a complete abstraction that you can have instantiated in a printed form or in a form in which it’s played. But the thing itself now is completely separable. I mean, we obviously have to go through a physical medium, and if we’re going to enjoy it, it’s got to go through our brains in some way. So, even though we think of ideas, once they become external, in the same way that, as I say, when you build a hotel, you know, lots of action takes place, but then once you’ve finished, you step back; there it is. Once you’ve finished with an idea or a book or a poem, you step back; there it is. It’s no longer part of you; you’ve objectified it.

Audience Member: I was going to say it’s a byproduct of the actual action of the thought, so you can always embellish on it and constantly act upon it, but the idea is not really an action at all. But my question, what I was going to say—I mean, I struggled to put this question together, but I was going to say, when an idea has been invented, limitations—how would you control the idea without not sharing it? Because when you share an idea, it loses its originality because other people can use it for their own benefits. Do you understand what I mean? How do you control it?

Jan Lester: I mean, there’s a problem with policing physical property, and there will be a problem with policing intellectual property always. And that—but you, of course, you’ve got to separate in principle whether it makes sense to have physical or intellectual property from how practical it is and how it can be policed and at what point you sort of give up and say, “You know, beyond that point, it’s just not possible, and we have to forget about that.” And there will be limits whereby you just say, “We can’t go into people’s houses,” you know, there. So, but that’s not where the problem really is anyway. The problem is people pirating it. So, as long as that’s the real problem, that can be dealt with. But there will be economic limits to how far—and there are, of course, certain psychological limits in a sense that you can’t explain an idea to somebody that they understand and then not think about it. I mean, that’s—it’s in their head; it’s there. If they can’t sort of think, “Right, I will never think about that idea that you’ve given me. Oh no, I’m not thinking about it.” No, just to think about whether you’re not thinking about it is to think about it. But anyway, there’s no loss there, so that’s not really a problem.

Audience Member: So, there’s a question in the—please, last one. Just, it seems to me that the only way that you can actually enforce intellectual property rights is by violating physical property rights. Because, while, for example, with the book, while the guy can copy the content of your book, he has still put his own real resources into printing those copies. And in order to prevent him from selling it, you have to essentially seize his property, just as you have to seize the assets of the burglar who broke into your house with a jimmy and he’s got his swag bag and everything. And you say, “Well, yeah, I paid for all of those,” and his stripy jersey, of course, and, “You’ve got to, you know, those are mine.” Well, I’m—yeah, yeah, and you—he put his time into it, and he put his thought into it, and burglary is a complicated business.

Jan Lester: I’m sorry, if what you’re doing is entirely illegitimate, then those things are going to be seized, and you can’t have them. In fact, they can even be seized in advance because there’s a crime of going equipped to commit a burglary. You don’t actually have to go into the house; you can just be walking along the road with the stripy jumper and the bag.

Timestamp: 2:10:16

Audience Member: Can I ask, if I may, take it out of the context of intellectual property for a moment, regarding what you said in the very beginning regarding liberty in the center or private property. You know, I would describe myself as a propertarian. You know, I think property comes first, and then I believe in liberty within the framework of private property. And, you know, liberty is really a meaningless term, a meaningless political term, without that framework. And almost every political position claims to advance liberty, even communism. Would you reflect on that?

Jan Lester: Yeah, I think it’s a very common error, and it’s a complete and utter error and an error of the first magnitude. And until we can correct this error and put liberty back at the center, libertarianism isn’t really going to make progress, either socially or even intellectually. It works like this—I’m going to make it very, very simple, but it’s all in my book, and I’ve got a few copies with me if anybody’s interested. The reason you want private property and self-ownership is because if you think that the liberty of the individual is important, private property liberates you. You can do things without people interfering with you. If you own your own body, then people can’t do anything to you without your permission; then you have more liberty. So, if liberty means not being positively interfered with, you know, in a proactive way by other people, then self-ownership and certain kinds of external ownership will follow. But by putting it that way around, we can show how these things are congruent with liberty. If you say property comes first, then any system of property, you can say, “What, however it was acquired, you can say doing what you like with that kind of property—okay, I own these slaves; I captured them; they’re mine; nobody can take them from me, otherwise they’re interfering with my liberty.” Now, I want to say that is not an example of liberty in the libertarian sense because it doesn’t—libertarianism doesn’t just fit any kind of property. It’s got to be the kind of property where you’re not actively aggressing against other people.

Audience Member: You would have a kind of ethical superstructure, and the first principle would be that everybody would own themselves, so there’s a kind of private self-ownership.

Jan Lester: Yeah, I mean, I would say ethics comes later as well. First is a problem of what liberty is and how it would apply in theory. It’s a secondary and subsidiary issue whether liberty is a good thing. You can’t bundle it up with the idea that whatever it is, it’s a good thing, and that’s got to be completely separate. So, that doesn’t really solve the problem. And that’s another thing that people do; they often start talking about rights. But how do these rights relate to liberty in the first place? You need to see that if liberty is respected, then certain things must happen because that just means not interfering with individual liberty. Then you can ask the question, “Is it a good thing?” I would say, “Oh, yeah, it’s a very good thing; it’s productive, creates responsibility, all kinds of good things follow; that’s why we want it.” But if we ever get into a problem with any particular kind of property, such as intellectual property, if you start with, say, “I believe in physical property, and that’s what I believe in, and that’s what I call libertarianism,” then you sort of say, “Well, I can’t—then you can’t make any sense of intellectual property.” They’re just—physical property is property. You don’t have a theory of liberty, and that’s a problem. If you’re a libertarian, you ought to have a theory of liberty first, and then you ought to be able to say how—it’s not very difficult—self-ownership is a result of respecting people’s liberty. Obviously, to seize somebody and use them as a slave is to interfere with that person’s liberty. Obviously, to allow people to keep the fruits of their labors within certain rules means you’re not interfering with them, and that’s liberty. So, liberty is first, and whenever a problem arises, like intellectual property or anything else, or how do you go about rectification in the event of somebody having committed a crime, you can go back to the theory of liberty and say, “What follows from the theory of liberty as regards what’s going on here? What can be done that’s compatible with the theory of liberty?” Without the theory of liberty, we’ve simply got a proprietary mess based on historical ideas of material property and, “Well, that* that’s how we’ve always done it,” and common law says this, precedent says that. There is no theory, and that’s the big problem. As soon as you put liberty at the center, everything falls into place. It’s the difference, as I said, between the geocentric view of the universe and the heliocentric view. The liberty-centered view, once you follow through all the arguments, solves all of the problems that the private property-centered view can’t solve and which critics of the private property-centered view see cannot be solved.

Audience Member: I would disagree with you. One of the advantages of putting property in the center is that it allows more forms of life to be possible. You know, what do people who don’t want to live in a libertarian society, who want to form some kind of communitarian society, and within a propertarian superstructure, a propertarian order, that would be perfectly possible. Why is that not libertarian?

Jan Lester: A communitarian society on a voluntary basis is libertarian. You say, “Well, it’s not an alternative to a libertarian society.” A libertarian society isn’t about the market; that’s just one of the things that libertarianism allows. It allows you to be a monk or a nun or a communist or whatever on a voluntary basis, or even a slave if you want to contract in. This is the best of it.

Here we will leave it, but thank you very much.

[Applause]

Closing Remarks

Timestamp: 2:16:45

Thank you. I want to thank everyone very much for coming, and I hope you had a good time. I had an amazing time setting it up, and just want to thank one more time Caroline, who’s not here, and Emma mainly for all their help. And I hope you had a good time. Thanks very much.

[Applause and Music]

Timestamp: 2:17:16

Lunch is outside. Thank you.