Stephan Kinsella, ‘Against Intellectual Property’

For today’s lecture, some libertarian thoughts on the problem of intellectual property from Stephan Kinsella.

I’m regularly exposed to libertarian ideas at places like Marginal Revolution and EconLog. I like a lot of the ideas, but I wouldn’t describe myself as libertarian.

Kinsella wrote a paper called “Against Intellectual Property.” I’m slowly making my way through it. TV and the Internet have reduced my attention span down to a nub, so I often find it challenging to digest scholarly pieces like this. Especially when the footnotes consume on average half of the page.

In “Against Intellectual Property,” he talks about the first-possessor rule of property ownership. Since I can’t be bothered at the moment to research this idea further, I’m going by what I read in the paper and what occurs to me to wonder about, and it seems there is a problem with the rule.

Going with the theme of Kinsella’s example in the excerpt at the end of this post, suppose I’m one of the first fifty human beings on earth and we’re all starting out in what is now the state of New York. We have a village there and we each own a 1/4 acre of land with white picket fences defining our property boundaries.

Then one day, Thog wanders west out of the village and claims the rest of the continent–and why not say the rest of the world–by the rule of first-possessor. What determines original possession? Why should Thog get the whole world this way? It brings up the question of fairness, and I sometimes worry that when the revolution comes along, its leaders will want to reallocate my own small amount of property in the interests of fairness.

Setting aside that question, here’s an excerpt from the paper. I liked that it highlights one of the problems of patents, that so much control is granted to people for coming up with ideas.

Proponents of IP must also advocate a new homesteading rule to supplement, if not replace, the first-possessor homesteading rule. They must maintain that there is a second way for an individual to come to own tangible property. To wit, the IP advocate must propose some homesteading rule along the following lines: “A person who comes up with some useful or creative idea which can guide or direct an actor in the use of his own tangible property thereby instantly gains a right to control all other tangible property in the world, with respect to that property’s similar use.” This new-fangled homesteading technique is so powerful that it gives the creator rights in third parties’ already owned tangible property.

For example, by inventing a new technique for digging a well, the inventor can prevent all others in the world from digging wells in this manner, even on their own property. To take another example, imagine the time when men lived in caves. One bright guy–let’s call him Galt-Magnon–decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins. But the first man to invent a house, according to IP advocates, would have a right to prevent others from building houses on their own land, with their own logs, or to charge them a fee if they do build houses. It is plain that the innovator in these examples becomes a partial owner of the tangible property (e.g., land and logs) of others, due not to first occupation and use of that property (for it is already owned), but due to his coming up with an idea. Clearly, this rule flies in the face of the first-user homesteading rule, arbitrarily and groundlessly overriding the very homesteading rule that is at the foundation of all property rights.

–N. Stephan Kinsella, “Against Intellectual Property”, p32-33
  http://www.mises.org/journals/jls/15_2/15_2_1.pdf

Think about software patents, how with computers we are starting to build these amazing things in machines that sit on our desktop, but other people want to control what can be done with them. We’re on the verge of something as big as coming out of the caves, and people are trying to tell us if and how we can build our log houses.

It’s silly. And worse, it’s harmful.