I’m going to interact with the case made by N. Stephan Kinsella in Against Intellectual Property. I’m a sympathetic audience for his project, having quite a skeptical attitude toward IP rights, and especially toward patents. I don’t think ideas can be owned by human beings.
Nonetheless, I still found his case very weak:
He grounds property rights in scarcity (p. 29ff), which appears to be an exercise in missing the point—one which undermines the whole rest of his case moving forward. What possible justification could there be for thinking that, “were we in a Garden of Eden where land and other goods were infinitely abundant, there would be no scarcity and, therefore, no need for property rules; property concepts would be meaningless” (p. 31)?
Firstly, just as a matter of obvious counterexample: even given infinite resources, people will still have preferences. Just because there are a million other places for me to build a house doesn’t mean that I don’t prefer the spot right by the river bend, and wish to stake an exclusive claim to it.
Secondly, and more importantly, property rights are surely grounded not in scarcity, but rather—as all our other rights are—in our nature as God’s imagers. That is to say, where there are rights, there is a reflection of God. We know that God owns the earth not because he is competing with anyone for scarce resources, but because he made it (Psalm 24:1–2). Derivatively, we own parts of it because he grants us dominion over those parts (Genesis 1:26–29; Deuteronomy 18:9; 32:8; Acts 17:26 etc). So the way Kinsella grounds his entire argument moving forward is biblically spurious; property rights are not derived as a utilitarian mandate from the prior need to avoid conflict over resources (though they certainly help to avoid such conflicts); they are direct applications of the dominion mandate, grounded in God’s ownership of his creation. This distinction may have major ramifications for IP rights.
Further to (1), the homesteading principle fails as an absolute basis for tangible property rights. Certainly it is generally true that homesteading grants property rights, and that latecomers who try to possess the property afterward are simply thieves. But this is true only because homesteading is the typical way by which God implicitly grants dominion; it can certainly be overridden, as in the case of God giving Abraham the land already settled by others. Even the thievery principle is much murkier than it first appears, as is obvious in the case of colonization: even if land is taken unjustly, at some point it does arguably come under the rightful claim of its new possessors.
Kinsella takes the view that statutory IP rights are unjustified just because they grant the IP owner partial rights over others’ tangible property. Yet there are obvious analogues here that challenge his assumption as naïve. To take just one analogy, the police have the (surely statutory) right to search your house if they have probable cause, which grants them partial rights over your tangible property. The same goes for arrest, which grants them fairly substantial rights over your own person. This is true even if you are innocent, yet I can’t see that it’s unjustified, since the statutory encroachment on your natural rights is commensurate with certain reasonable expectations of what must be allowed to ensure a fair society. It seems fairly trivial to find an analogy to IP rights here. (This is not to say that the mere existence of the analogy justifies IP rights—rather, it just doesn’t cut the mustard to merely assert their injustice on the grounds of their encroaching natural property rights.)
Apropos (3), Kinsella also relies on at least one claim that seems plainly false: namely that “only tangible, scarce resources are the possible object of interpersonal conflict, so it is only for them that property rules are applicable” (p. 35). Has it not occurred to him that if I were to start republishing his book under my own name, passing it off as my own, he would have a just cause for interpersonal conflict with me—regardless of whether I was thereby depriving him of any tangible resources in the form of potential earnings? This leaves an enormous blind spot in his book, since he doesn’t even consider honorable behavior or fair recognition as a ground of IP law. This blindness to honor is a recurring defect that ultimately scuttles much of his credibility.
Apropos (4), his presentation under the section on the limits of contract is decent (p. 45ff), but he fails to anticipate the rejoinder that there is a social contract that prohibits copying without permission. This seems self-evidently true in the case of Western society, and certainly a broader case could be made for it. This social contract is definitely more limited in scope, as well as in legal force, than actual IP law—but that doesn’t mean it has no power whatsoever, nor that it can be dismissed without consideration. Kinsella’s oversight here seems to further highlight a fundamental difference between libertarian and biblical ethical presuppositions. He argues that, “contrary to practice in totalitarian societies, all things that are not forbidden are permitted” (p. 54)—to which Paul would of course respond, “Yes, but not all things are good; let none seek his own good, but that of his neighbor” (1 Corinthians 10:23–24; 8:9).
On this point, a biblical ethic would ironically strengthen Kinsella’s case against IP law in at least some instances. Take his example of Jed planning to buy land from his neighbors without mentioning the oil he has found (pp. 54–55). I agree that the neighbors have no obligation to artificially limit their knowledge when they learn of the oil in violation of Jed’s supposed IP—but I’d go further to point out that Jed himself is being a scumbag by trying to defraud his neighbors of their properties’ actual value! Oddly, Kinsella doesn’t seem to even notice this, which rather makes one wonder about libertarian ethical presuppositions…
His argument about trademark prosecution reflects a similarly skewed perspective. While I certainly agree that consumers obviously should be able to sue for being duped by deceptive trademarks (or any other deceptive practices), surely it is equally obvious that a trademark pirate is acting dishonorably toward the original company? Do libertarians not understand the concept of honor? It would appear not, given Kinsella’s bold followup assertion that “there is, of course, nothing wrong with being the first to acquire a domain name and thereafter selling it to the highest bidder” (p. 60). Cybersquatting is a clear case of acting dishonorably; it is equivalent to extortion, effectively “kidnapping” a resource so as to ransom it back. A fair society should obviously punish such behavior in some way.
Overall, the problem with Kinsella’s case is not so much that his conclusion about IP rights is wrong, but that it is skewed by his ethical blind spots, and ultimately negated by his inability to ground rights period. Although I am sympathetic to his general view, the specific way in which he builds it ends up being a lopsided castle in the sky.