Intellectual property: a dilemma for libertarians

Can an idea be “owned” in any meaningful way? Only one person can stand on a patch of land at one time, whereas an infinite number of people can read a passage of a book without denying the owner of it use of this work. Physical goods are, in this sense, scarce, and we have property to ensure peaceful control of these things, but in the realm of ideas, there is no such scarcity. Also, IP represents an attack on freedom. If I own a computer, and a supplier of software bans me from using it in certain ways lest I violate IP, then I am being told how to use my own physical property. In short, IP limits freedom.

This dilemma has harrassed and divided libertarians for years and is the endless topic of beer fueled debates. That is why Tom Burroughes has kindly agreed to speak at this months drinks evening at the Rose and Crown. His talk will review the arguments to inform our discussion late into the evening. Does he have any answers? I’ll tell you afterwards.

Tom Burroughes is a Samizdatista and group editor of ClearView Financial Media. He sits on the advisory board of the Cobden Centre and blogs at the Cobden Centre blog.

His talk will begin at 8pm on April 5th at the Rose and Crown, Colombo Street. The informal drinks will begin from 1900. Limited catering will be provided, to fuel brains.

Please indicate attendence via to help us plan things smoothly.


  1. Copyrights and patents last for a governmnent set number of years. If IP is correct why the limit on the number of years? And why a different number of years in different countries (and please no world government “an international treaty will sort this out”)?

    It all seems rather arbitrary.

    However, the theoretical debate does not really matter – as the Chinese (and so on) will never really enforce these things against the interests of local producers.

    Oh of course they will drag a few copyright and patent breakers off to execution – but it ill be a show, better connected producers will carry on production just round the corner from where the execution of patent and copyright breakers.

    Production goes to where it is least expensive to produce – period. Not a matter of wages (first Britain, then the United States were the main manufacturing power when they had the HIGHEST wages in the world), what actually matters is productivity – which is influenced by such things as taxation, regulation, the price of electricity and other imputs (and so on). Money per hour does not matter – what matters is money per amount of stuff produced in that hour.

    As for the idea that patents and copyrights can save industry in countries where production has been made uncompetitive by government interventionism – it is a foolish as the idea that taxes on imports can save domestic production.

    Oh, by the way, companies like Apple use factories in Asia – so even if local producers do not violate copyrights and patents (and, see above, they will) the very holders of the these things have no intention of even trying to use them to try and “save” Western production.

    Typed on a Samsung Netbook.

    And guess how much I care who is right in the Samsung V Apple feud.



      1. (Much as I frown upon someone taking Mises name in vain!)

        To say something is ‘totally counter to general prosperity’ is not necessarily expressing an opinion one way or another of whether it should be allowed or not. It can easily be a value-free judgement, and indeed it should be if it is an economic argument.

        To say ‘the needs of the many outweigh those of the individual’ is however a value judgement, and does not automatically follow.

        A patent is a grant of monopoly which invades the property of others, and is defended in the same way as protective tariffs for ‘infant industries’ are defended, i.e., with spurious reasoning.


      2. The point I was trying to make is that usually we are supposed to be in favour of an individual’s right to do as he see’s fit with the fruits of his labour, and no one else may assert a claim to it.

        For example- I am currently (finally!) reading Atlas Shrugged. Part way though Hank Rearden is forced into handing over the rights to his invention so others can produce it (whether he actually patented it was unclear to me). This is rightly presented as a great injustice. Yet by the logic mentioned above this is justified as there is a greater good to denying him the right to produce it exclusive (though of course this is a crapsack world where no one seems to try and invent their own, possibly better version)


      3. @ Andy,

        “The point I was trying to make is that usually we are supposed to be in favour of an individual’s right to do as he see’s fit with the fruits of his labour, and no one else may assert a claim to it. ”

        Yes indeed, and the case against patents are that grant to the holder an illegitimate right over another individual’s fruit (!).

        In patent law, there is no need to prove any kind of plagiarisation or ripping off of the patent-holder’s idea. The idea may be arrived at wholly independently, but if someone else has managed to register a patent in that area, then the second person (who actually may have made the invention first, but not registered it) is going to be penalised.


      4. I should have used the name Rothbard… I am not swayed by ‘greater good’ arguments and loathe utilitarianism, however I do like to make the greater good arguments for any Vulcans who may be reading. I refer you to point a) which is enough to convince me. As for Hank Rearden (below, I think), he would have been forced to hand over the details of his metallurgical process on a PIECE OF PAPER: actual theft!


      5. Yes Hank Reardon did not rely on the state – his position was, I have worked out how to make a new thing, I am not going to tell you how to do make it.

        Other people were too dull to work out how to make the metal – even though Reardon was willing to sell it to them (and they could do any tests they liked upon it).

        That is true “intellectual property”.


  2. We need to avoid conflagrating copyright with patents.

    Under copyright, the usual situation is that the “sale” of an item to you is not unconditional. In fact, it’s often not a sale of goods at all, you’re buying a licence to use those goods on terms set by the vendor. If you don’t agree to those terms, then don’t buy/licence it. It’s as simple as that. Or are people suggesting that conditional contracts of sale/licencing should be illegal?

    The problem arises with those who have not entered into a contract with the vendor. If I obtain a copy of an ebook, some software. a music file or a film from someone, I have no contract with the vendor. It is the person who originally bought/licenced the work that has breached their contract with the vendor. It is they who should be sought by the vendor and made to pay damages for breach of contract. But the legislators seem to think they have the right to effectively create some type of contract, to between me and the vendor (a contract to which I never agreed) that makes me liable in law for perceived losses.

    When it comes to patents, the problem is much more tricky. Would I invest large amounts of time and money to create something new if the only advantage I receive is that of first mover? Probably not. As such, there might be a little less progress in the world.

    It should be an interesting talk.



    1. “Would I invest large amounts of time and money to create something new if the only advantage I receive is that of first mover?”

      In many cases the answer to this question is yes, because said innovation is actually very difficult to copy without knowing precisely how it was done in the first place, closed-source software is one example, and try cloning a sheep if all you know is that somebody managed to clone a sheep. There’s a natural monopoly period during which time imitators may try to catch up, plus the imitators don’t have the incentive of being first mover, they will have already established competition.



  3. When a vendor enters into a contract with a customer in the full knowledge that there is no prospect of him being able to enforce those terms if the contract is breached, it is unreasonable for him to expect the state to enact laws to trawl for, and punish, people breaking such contracts. If that happens, it is an example of state corporatism.

    Would it have been reasonable for Kodak to have governments outlaw digital imaging technology on the basis that they first had the idea for photography?

    What the above vendor needs is a new business model.



  4. Generally I’d agree that copyright and trademarks are useful and necessary in a free society, though patents am not so sure of.

    We need to remember always Robert Heinlein’s observation that There’s no such thing as a free lunch. Anything and everything that we produce has a cost that has to be borne somewhere- for example at the moment I’m playing a Japanese game that I bought an english translation of online.

    The translator had to be paid for his time and the firm also had to pay a license to the orginial developer. I’m willing to pay for their product because I value it and think the firm deserves to profit from it.

    I also know of sites where it could have been downloaded for free from. However if too many people do that then the firm makes a loss and no games will get translated in future (yes there are fan translations out there but I’ve tried them and they never work properly or take ages to complete)



    1. The only way IP can be preserved is not by state edicts.

      It is by making it very difficult to copy something – by technical means.

      If a producer of a film (or whatever) can not figure out how to do that then then all copyright rules in the world will not help them.

      With theft something is missing – that physical object you own is MISSING.

      With breaking copyrights and patents nothing is missing – so the whole thing can not really be covered by the laws on theft.

      If someone says “I am the one who invented this thing first” (and sells on this basis) then one might be able to hit him on the basis of fraud (misrepresentaion).

      But if someone says “I thought this idea was a good one – so I copied it” it is hard to see what crime has been committed.

      Especially as no one seems to argue for ETERNAL copyrights and patents.

      After all other ownership is not for an ARBITRARY number of years.



      1. “Especially as no one seems to argue for ETERNAL copyrights and patents.”


        “On the free market, there would therefore be no such thing
        as patents. There would, however, be copyright for any inventor or creator who made use of it, and this copyright would be perpetual, not limited to a certain number of years. Obviously, to be fully the property of an individual, a good has to be permanently and perpetually the property of the man and his heirs and assigns. If the State decrees that a man’s property ceases at a certain
        date, this means that the State is the real owner and that it simply grants the man use of the property for a certain period of time.*

        *Of course, there would be nothing to prevent the creator or his heirs from voluntarily abandoning this property right and throwing it into the “public domain” if they so desired.”

        Murray N. Rothbard – ‘Man, Economy and State’ pg 749
        The section it’s from is worth reading. He declares patents contrary to the free market but supports copyright.

        Click to access mespm.pdf


      2. I apologise for my error – I had simply forgotten that Rothbard had written that (I have read the book – but twenty years ago).

        Eternal copyright.

        An “interesting” concept.


    2. Andy Janes, it literally took you 23 minutes to go from “so the needs of the many do outweigh those of the individual after all then?” to a naive utilitarian argument implying that copyright is “useful and necessary” and makes people better off.



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