Contro La Proprietà Intellettuale (Amazon.it), Italian translation of Against Intellectual Property, edited, translated, and with a preface by Roberta A. Modugno (Soveria Mannelli: Rubbettino Editore, Nov. 2010) (“Il giurista Kinsella non ama l copyright,” review by Alberto Mingardi, Domenica, 6 Marzo 2011, N.10) [Amazon Italy version]. An English version of Roberta Modguna’s Preface is pasted below.
The pdf and .doc files for another translation are available for download here.
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Against Intellectual Property
Preface
Stephan Kinsella’s Against Intellectual Property is an important intervention in libertarian political theory. In order to appreciate its significance, one needs to situate it within the background of this political doctrine.
Libertarianism, a variant of classical liberalism, is an American political movement that originated after World War II.[1] Murray Rothbard, an economist and historian, was the principal exponent of one variant of libertarianism, and he is the chief intellectual influence on Kinsella. In general terms, libertarianism carried to extreme lengths the opposition to the New Deal of Franklin Roosevelt and the socialism of the post-1945 British Labour Party. Perhaps the most notable expression of this opposition was Friedrich Hayek’s famous The Road to Serfdom (1944), which warned that the patterns of thought found in advocates of the welfare state repeated dangerous ideas favored by pre-war Continental intellectuals. These thinkers, of whom Karl Mannheim was for Hayek the chief villain, showed themselves willing to suppress liberty, if necessary, in order to put into effect their economic plans. In so doing, Hayek argues, they paved the way for the totalitarian evils of Nazi Germany.
Hayek’s thesis aroused much controversy, but one group maintained that he had not gone far enough. Hayek, although strongly critical of planning, allowed substantial room for state intervention in the economy. He expressly repudiated laissez-faire, arguing that a genuine free market required a carefully constructed legal framework in order to operate properly. He allowed for state provision of basic welfare services, a position he elaborated at greater length in his The Constitution of Liberty (1960).
Libertarians such as the novelist Ayn Rand and Leonard Read, head of the Foundation for Economic Education, maintained that such concessions to contemporary opinion were unneeded and in fact harmful. Voluntary charity would suffice to take care of welfare, if given a chance; besides, the use of state compulsion violates individual rights.
Murray Rothbard, an economist who graduated from Columbia University in New York shortly after World War II, became attracted to the free market position of the Foundation for Economic Education, but he soon carried matters further to develop his own distinctive and radical variety of libertarianism. Rothbard attended the seminar conducted by the great Austrian economist Ludwig von Mises at New York University and soon became an ardent advocate of Mises’s system of economics.[2]
The economics of Mises fitted very well with libertarianism; Mises contended that all economic systems other than the free market were doomed to failure. Rothbard asked the question, if the free market works so well, why do we need a government at all? Could not private protection agencies assume all the functions commonly assigned to government? Rothbard answered that the free market could indeed be extended in this way, a conclusion that put him decidedly at odds with Mises. In taking this path, Rothbard was influenced by the nineteenth century American individualist anarchists Benjamin Tucker and Lysander Spooner, who had likewise opposed a monopoly state. He differed from these predecessors, though, in adding Austrian economics to their anarchism. Tucker and Spooner were, in Rothbard’s view, monetary cranks, who lacked an appreciation of the importance of sound money and capital investment.
In the foundations of his political philosophy, Rothbard again broke with his teacher Mises. As Mises saw matters, natural law was an outdated idea, which falsely claimed that certain subjective preferences had universal validity. One should rather, Mises thought, openly acknowledge that all ethical judgments are no more than expressions of personal preference. Contrary to what one might at first think, this course of action did not make an effective defense of the free market impossible. Quite the contrary, the fallacy of any attempt to intervene in the free market could be readily shown, without any appeal to controversial value judgments. One can defend the market by showing that interventionist measures fail to achieve the goals of their own advocates. The defender of the market thus stands acquitted of the charge of imposing his subjective preferences on those who do not share them.
For Rothbard, this was not enough. He believed, contrary to Mises, that ethics was an objective science. As he explained in Power and Market and The Ethics of Liberty, each person is a self-owner. No one can coerce or threaten to coerce him, unless he initiates force against others.
If this self-ownership principle is combined with the assumption that land and resources are initially without owners, a controversial conclusion readily results. (The Marxist philosopher G.A. Cohen has questioned the view that land begins unowned.[3]) If people own themselves, then they also own their labor. If they then mix their labor with land, they acquire it. This account is of course derived from John Locke; but Rothbard takes it to much more radical lengths than his great seventeenth-century predecessor. For Rothbard, Lockean acquisition of property leaves no room at all for a state or for any non-voluntary provision of welfare.
We have devoted time to discussing Rothbard because his thought forms the basis of Stephan Kinsella’s monograph on patent and copyright law. Like Rothbard, Kinsella takes the self-ownership principle as fundamental. He does not, though, ground morality in natural law, in the style of Rothbard. He instead follows the Kantian argument of Rothbard’s follower Hans-Hermann Hoppe. In his The Economics and Ethics of Private Property and other books, Hoppe developed a new argument for self-ownership, which modified the communication ethics of Karl-Otto Apel and Juergen Habermas,[4] under whom Hoppe had studied. According to Hoppe, anyone who denies self-ownership falls into a sort of contradiction. Hoppe’s argument has engendered much controversy among libertarians; but Rothbard viewed it with favor.
Even though Kinsella differs from Rothbard in rejecting natural law, the principal interest in Against Intellectual Property lies elsewhere. At first sight, one might wonder why a monograph on patent and copyright law would be of general interest to those interested in classical liberalism. Is not the topic of what protection, if any, inventions and books ought to receive of rather specialized interest? In defending his view, Kinsella extends standard Rothbardian libertarianism; and it is in this extension that the main importance of the work lies for those who wish to understand classical liberalism.
To understand Kinsella’s extension, we must first grasp his conclusion about patents and copyrights. He resolutely rejects these, as well as other forms of intellectual property. If Kinsella wishes to adopt this view, he of course needs to confront the question, how might a libertarian supporter of intellectual property defend patents and copyrights? The answer lies readily at hand. He would argue that because each person owns his own labor, people are also entitled to the products of their intellectual labor. Specifically, patents and copyrights are legitimate: they secure the property rights that are due to intellectual labor. The logic appears inescapable. If you are a self-owner, then you own your own labor; and if you own your own labor, then patents and copyrights are legitimate. How can Kinsella, who rejects patents and copyrights, avoid this repugnant conclusion?
The argument is no mere hypothetical possibility. As Kinsella makes clear, defenders of patents and copyrights have argued in the way just suggested. In particular, to followers of Ayn Rand, intellectual property is the central case of private property. Philosophers, called Objectivists, who accept her views argue in precisely the way sketched above. Kinsella pays particular attention to one such Objectivist philosopher, David Kelley.
In addition, the Austrian economist Israel Kirzner, although he does not address patents and copyrights directly, uses a variation of the argument for patents and copyrights as his central argument for all private property. As he sees matters, people who devise new uses for resources are in effect creating the resource and are thus entitled to own it.[5] For him, as for the Objectivists, ownership of one’s intellectual output is basic.
To return to our question: what is Kinsella to do? He cannot reject the first premise of the argument. To the contrary, he resolutely affirms it: people are self-owners. He responds to the argument instead by rejecting the contention that ideas can be owned. Only physical objects, and claims to them, can be owned. If Kinsella is correct, the argument for patents and copyrights that we have considered collapses. From the initial premise of self-ownership, nothing logically follows about patents and copyrights. Kinsella appears to have solved his problem.
Kinsella makes another important contribution to libertarian theory. He does not reject Locke’s labor-mixture account of initial acquisition of unowned land, but he supplements it with another argument. His new argument proceeds from a penetrating question: what is the need for private property at all?
Kinsella answers that private property stems from scarcity. If we lived in a world of abundance, in which everyone could have as much of any resource he wanted without detracting from anyone else’s share, there would be no need for individual property rights. It is only because this happy state of affairs is not to be found in reality that the problem of property arises. Because, contrary to our fantasy, there is not an abundance of resources available to everyone, any society faces a fundamental problem: how are resources to be distributed?
Here, then is our problem: owing to scarcity, property must be assigned to the various members of society. The task cannot be avoided. As Kinsella explains, human action involves the use of scarce means to attain ends. Given the scarcity of means, we need some system of distributing rights to these means, if incessant social conflict is to be avoided.
In a bold stroke, Kinsella argues that only one method of property assignment is rational. Libertarian property rights must be assigned to the first person to use unowned land or resources. How else could one proceed? Surely the first user has a better claim than the second or any subsequent user.
If Kinsella is correct in his derivation of property rights, he has constructed an argument, based on the inevitable social fact of scarcity, that enables him to defend exactly the property rights he supports.
An appeal to scarcity cannot be used to justify patents and copyrights. Ideas, unlike physical resources, are not inherently scarce. My use of an idea does not prevent you from using the same idea. No circumstances of justice compel us to devise a plan to distribute ownership of ideas. As is unfortunately not the case with physical objects, one person’s use of an idea does not interfere with the use of that idea by anyone else.
Patents and copyrights cannot be justified by an appeal to scarcity; but does this fact suffice to show that patents and copyrights should not exist? Perhaps there is some other sort of argument to justify them.
Kinsella blocks any effort to find such an argument by an ingenious move. What happens, he asks, if patents and copyrights exist? Then, people are restricted in the ownership of their own physical resources. If, e.g., you have a patent on the construction of a certain type of machine, then I am not at liberty to build such a machine, even if I own all the resources necessary to do so. If this is true, we face a difficulty. The argument from scarcity has already established that people have libertarian rights to such resources. If so, someone who owns the parts required to construct a machine is at liberty to assemble them, even if in doing this he relies on someone else’s ideas. Patents and copyrights contradict libertarian rights to physical objects, at least if one accepts Kinsella’s account of such rights.
Stephan Kinsella has given us a provocative and original account of libertarian property rights, in the course of a sustained polemic against intellectual property. Those interested in the political theory of classical liberalism and its most radical branch, libertarianism, will find this book essential reading. Kinsella’s arguments against intellectual property will shape all future discussion of this vital problem.
Roberta Adelaide Modugno
[1] For a general history of libertarianism, see Brian Doherty, Radicals for Capitalism, Public Affairs Press, 2007.
[2] See Roberta Modugno, Murray N. Rothbard e il libertarismo americano, Rubbettino Editore, Soveria Mannelli, 1998, for a more detailed account of Rothbard’s views.
[3] See G.A. Cohen, Self-Ownership, Freedom, and Equality, Cambridge University Press, 1995.
[4] See Karl-Otto Apel, Ethics and the Theory of Rationality: Selected Essays of Karl-Otto Apel, Volume 2, Humanities Press, 1996; Juergen Habermas, Moral Consciousness and Communicative Action, MIT Press, 1990.
[5] See Israel M.Kirzner, Discovery, Capitalism, and Economic Justice, Basil Blackwell, 1989.
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