Norman Stephen Kinsella is an Austro-anarchist legal theorist (from his own website). His primary focus is on patent law and intellectual property rights. This is a review of his most recent work titled Against Intellectual Property and I aim to refute some of his assertions against protecting intellectual property rights.
There is no problem addressing property rights among individualists, it can include rights to tangible things like resources and one’s own body, thus life. It can also include intangible things like one’s reputation, Kinsella agreed that these are not up to dispute. He then go on to explain the 4 types of intellectual property “goods”:
Copyright is the property right to own one’s original work and prevent the work from being copied without permission.
Patent is the property right to own one’s invention and prevent the invention from being manufactured or sold without consent.
Trade Secret is the property right of information or knowledge that gives one competitive advantage, such as KFC’s 11 herbs and spices.
Trademark is simply an expression that identifies objects from the source of production.
Kinsella goes into further details to explain the United States Federal regulations regarding each of the intellectual property rights. He further divides the intellectual property arguments into 3 camps.
Intellectual property as a natural right: One owns one’s mind and body, intellectual property is something one creates thus he is entitled to the ownership.
Intellectual property as a utility: Protecting intellectual property promotes innovation thus creating more net utility.
Contractual property right: intellectual property right is to be protected only under contractual agreements.
We do not need to go into details on utilitarian defense as it is inherently illogical and arbitrary. Kinsella provided detailed analysis as well as factual data to refute the utilitarians.
As for the natural right argument, Kinsella directly targeted Rand (who is the most vigorous proponent of intellectual property), he raised a few problems with this argument. The first one being what is to be protected under the law, he claimed the “distinction between the protectable and the unprotectable is necessarily arbitrary.” He stated that the current law only allows for practical application of ideas to be protected rather than the idea itself, this is also what Rand has expressed in the essay titled Patents and Copyrights. Rand distinguished discovery and invetion, she accepts “A scientific or philosophical discovery, which identifies a law of nature, a principle or a fact of reality…cannot be the exclusive property of the discoverer because (a) he did not create it, and (b) he cares to make his discovery public, claiming it to be true, he cannot demand that men continue to pursue or practice falsehoods except by his permission.” Kinsella then went on to say “no one creates matter; they just manipulate and grapple with it according to physical laws. In this sense, no one really creates anything.” Kinsella fell into the trap of reductionism, he first claimed that it is impossible to distinguish discovery and invention (which Rand did distinguish) then reduce the two concepts as mutually exclusive, but the reality is that they are very much correlated. He used the example of engineering creating a new moustrap “by rearranging existing parts to provide a function not previously performed”. He ignores the fact that the engineer requires understanding of how the law of physics works to create a new product by identifying the functions of different parts i.e. form association, to recognize the value of tangible resources such as crude oil, iron particles, electricity, etc. Then he reduced the theory of relativity to merely a mathematical algorithm, but it is in fact a discovery as nothing was directly produced as a result, untilt the application. Kinsella effectively is eating the cake by anyone can invent randomly, then attributing “invention” of scientifc facts as requiring efforts. As Rand said “potential is not a reality”.
Then he talked about the length of protection being arbitrary, but he did not mention Rand’s rejection of perpetuity of intellectual property in the rest of Capitalism the Unknown Ideal. He also failed to mention the arbitrary rules are created by the State, and Rand’s assertion that expiration is a complex issue, the deciding factor should be about maximising the reward for the creator. Then he attacked Rand for thinking there was no property rights before the 1800s, but the property right Rand has consistently referred to was for private property rights, which the anarcho capitalists so desperately are trying to protect since its creation.
His next section focused on property rights only applying to objects of scarcity, thus defining borders. He quotes Thomas Jefferson saying “He who receives an idea from me, receives instruction himself without lessening mine; as he
who lights his taper at mine, receives light without darkening me.” and Rand agreeing that ideas cannot be consumed in the same essay. Kinsella argues that intellectual property laws create an artificial scarcity, rights can only be protected by contracts.
I find myself in agreement with him, but Kinsella focused on the statutory aspect of the intellectual property (that is not just in the first place) rather than the practical application of intellectual property under a free society.
Kinsella continues to take on his formidable opponent Rand in the next part where he believes Rand was confused about the source of property rights. Kinsella belives intellectual property rights is the source of conflict, despite the fact that conflict exists not only in intellectual property rights but also in physical property rights, even objects without definitive scarcity such as air can be sold given the right condition. His homestead principle also relied on examples of alteration of land that does not drastically create things based on new ideas such as plucking an apple from a tree or creating a fence, he isn’t wrong in stating creation is not a neccessary condition for ownership, but his statement on creation as an action rather than (as we know from earlier, Rand clearly rejected the “creation” by discovery) producing fundamental transformation on the occupied (as Kinsella argued for correct homesteading) land is not an attack on Rand who agreed with him.
Then he created his own phrase of “ideal objective” that is something created from an idea which is not “ownable”, but his attack on David Kelly’s version of creation centred approach was not something I fundamentally disagree with. I think his argument was built on a Statist framework as oppose to how intellectual property can exist in a free society via contractual agreements.
Regarding how intellectual property could really be protected for those against intellectual property, contractual agreements may be used such as in buying this book means you would enter a contract of not replicating the content of this book. However, Kinsella argued that the contracts only binds the agreement to the two parties involved, but third parties are not bound by the rules, unlike patent or copyright laws. Kinsella stated even Rothbard talked about reservation of rights for the owner to the owner, then made a theoretical argument against it by claiming if people would abandon their right then someone else can reclaim it, who now owns the right? The answer is to never get into this place in the first place, if creator of book 1 abandons the property right and duplicator creating book 2 which is identicle and claiming it is their own, they did not “create” something new as far as the scarcity argument goes, it is not something new thus is not protected.
Then Kinsella posed a new problem of knowing the book second-hanedly/creating a mousetrap by “seeing” the original mousetrap. He argued that those people through secondhand knowledge acquired idea (despite he also argued knowledge cannot be owned because it is not scarce nor tangible) produced something similar independently is a problem to address, but it can easily be said that without the originator of the knowledge the person will not be able to create something independently, therefore the creation is not independent. Only when a creation is independent can it be an intellectual property, thus the requirement for this independence is PROOF, that is something fundamental to property rights Kinsella has not been discussing at all.
The contract does not have to be direct under the current contract law, it can be indirect i.e. A selling book to publisher B and C buying from B effectively enters into a new contract between B and C to A under A and B’s contract. It can be applied not only to book but informations and products. Kinsella mentioned this possibility but he went defensive by allowing the doubt of C to feign ignorance to the contract, which can easily be resolved by enforcing contract between A and B upon the sale/transmission.
In conclusion, he created his own definition of homesteading and property rights, but even with his logic, intellectual property rights is feasible and moral uner his anarcho capitalist society, though he refuses to accept the possibility despite considering the possibility of intellectual property under correct contract laws. He did a good job of addressing intellectual property, but I am still not convinced.