Pragmatism and Intellectual Property

5025541044_09ab3769ba_zBy Nathan Nicolaisen

Libertarians often argue over the pragmatism of intellectual property at the expense of the ethical aspect of restricting knowledge by force. The question posed in Butler Shaffer’s A Libertarian Critique of Intellectual Property is, “…by what reasoning can the state create and enforce such interests upon persons who have not agreed to be so bound?”[i]  This is the core of all voluntary interactions, and the question of whether or not intellectual property is profitable is not critical for the libertarian. Of course there will be winners and losers by granting IP rights to some at the expense of others, but Shaffer’s point is that it is wrong to enforce contracts upon those who have not voluntarily accepted the terms.  This crucial tenet of libertarian ethics is essential in understanding why so many libertarians are opposed to intellectual property.  Few people, and even fewer libertarians, if any, contend that inventors should not be rewarded for their efforts. Rather, the chief objection to intellectual property is that inventors may not use the force of government to prevent others from peacefully employing that knowledge.

Even if we ignore the ethical and moral objections, however,  numerous problems arise in the application of intellectual property laws. For example, how do we properly credit long-dead inventors for providing us with their discoveries?  Do we track down their offspring and pay royalties?  If it’s impractical to grant perpetual IP rights, then exactly how long should they last? Patent term length in the United States is twenty years while copyrights last seventy years after the last surviving author’s death.[ii]  What makes it right to grant patents for twenty years, but not nineteen?  What happens at seventy years that makes copyrights invalid at seventy years and one day?  The question seems trivial, but is nevertheless revealing.  If IP rights are truly rights, they must be inviolable and universal, unconstrained by time and place and not established by the arbitrary laws by the state.

Economists frequently warn of the unintended consequences of market intervention by the state, and Shaffer notes that it is well established that corporations with teams of lawyers and vast financial wealth are more able to file, receive, and defend their IP claims than are small proprietors.  As a result, individuals and smaller businesses are crowded out of the marketplace of ideas and discouraged from competing in fear of infringement and ensuing litigation.[iii]

The result is a centralization of knowledge by large institutions.  In turn, this presents a barrier to creativity and innovation and stifles a society’s ability to cope with new challenges.  Intellectual property puts restrictions on what can be developed from prior innovations.  Laws that purport to promote innovation and the creative capacity of humans to invent and express themselves artistically actually limit them.  As Shaffer humorously puts it in his book, “To so constrain creativity would be akin to forcing painters to work within the boundaries of paint-by-the-numbers kits.”[iv]

Shaffer notes that historians examining the importance of creativity often find that its prevalence and expression among a population is important to a civilization’s longevity.  The diversity of ideas and “cross-fertilization” among disciplines is necessary in the development of mankind.  On the other hand, centralization of the society’s knowledge through IP poses a threat to improving our current state.[v]  Shaffer warns of the monopoly on the genetic manipulation of food by Monsanto, for example, as a serious moral hazard. Here, Shaffer’s concern is not over whether or not genetic food modification should occur, but that if only one institution is legally permitted to engage in it, it poses a serious risk.

A Libertarian Critique serves as a useful introduction to the discussion and basic arguments on the immorality and impracticality of intellectual property.  It is easy to forget the coercive basis of IP rights.  When an infringement lawsuit is filed and won against a peaceful competitor, the state removes the competition by initiating force against them.  Without the state to use coercion against competition, inventors must do it themselves.  Without the state, inventors and their customers would be appalled with initiation of force one’s competitors.  Thus, question is not strictly, “Should inventors and artists be granted legal monopolies over their work?”  Maybe the question that should be posed is, “If you were to create something and I used that same idea and reproduced it with my own resources, would you personally initiate force against me to stop?”  Here is the true nature of intellectual property.

Nathan Nicolaisen is a senior at Luther College in Decorah, Iowa studying business management and mathematics.

[i] Butler Shaffer, A Libertarian Critique of Intellectual Property, (Auburn, Alabama: Mises Institute, 2013), 22.

[ii] These numbers are from most recent legislation.  Patents and copyrights prior to this legislation have different terms lengths, supporting the idea that intellectual property is not property if its terms are arbitrary.

[iii] James Bessen and Michael Meurer, Patent Failure:  How Judges, Bureaucrats, and Lawyers put Innovators at Risk, (Princeton University Press, August 2009), 170.  The chart displays a percentage of patents held by individuals versus the total number of patents granted.

[iv] Butler Shaffer, A Libertarian Critique of Intellectual Property, (Auburn, Alabama: Mises Institute, 2013), 48.

[v] Shaffer cites several historical examinations that freedom of creativity has on society on pages 52 and 53.


  1. That’s a lot of reading. Perhaps you can answer a question or comment (that is if you care to convince me). How can one distinguish between information that was stolen or just reached by someone else’s own deductions? Although, I would say that it is wrong for someone to break in and enter a domain to extract information, I don’t think it follows that the use of the innocent availability of that information should be condemned just because it redounds to society somehow that those protections be there. It has pretty much been my position that the ends do not justify the means–being a more progressed society at the expense of the individual making use of his freely available means. Moreover, I don’t believe that those unnatural protections do redound to society.

    • I am assuming that this was meant for me, in response to my comment below.

      I am absolutely astounded that you are complaining that the rebuttals to the various anti-IP arguments I provided are “a lot of reading”. The reason it is “a lot of reading” is because a tremendous amount of thought and logical reasoning was put into it. This sort of intellectual sloth is the reason many clear-thinking people rightfully don’t take you and the other Intellectual Communists seriously.

      Again, *you are hurting* Austrian Economics and Libertarianism with this sort of rubbish. Consider the arguments, rebut them if you can, or cease and desist.

      • I answer to my own conscience–I’m not complaining at all–just wondering if you have any quick answers. I’m reading about 5 books right now plus I read all the Mises articles and listen to tons of podcasts. I work full-time and run a household–are you still astounded? No rubbish–just inquiring–not trying to refute anyone–just trying to come to my own conclusion by listening to what other people have to say. Maybe some day I’ll get to studying that link but right now I thought you could provide a couple quick answers.

        • Again, in this article you are making arguments that have already been answered.

          Ignoring the counter-arguments while repeating the original arguments is at best unimaginably lazy, at worst an attempt at base propaganda. Your argument then devolves into a classic advertising tactic: “Repeat Often”.

          Continuing to do this on associates Austrian Economics and Libertarianism with intellectual sloth and dishonesty.

          Read the counter-arguments, formulate a response, or cease and desist. If you don’t, you are discrediting Austrian Economics and Libertarianism.

          • I read the article that started this conversation from–or its blog. What is this cease and desist stuff? Is that meant for the author of the article, as well? The information you linked gave a clear distinction between patents and copyrights–a lot of my concerns (personal–not meant to propagandize anything) are relieved with that distinction, of which I already had read or listened to from Rothbard works (but I was under the impression that you supported patents). How can someone seeking answers be discrediting anything? I’m reading your beloved link to see if it answers my concerns but I didn’t want to spend the time reading stuff I ALREADY READ OR HEARD but you seem more interested in insulting me than taking me at my word that I want to know how my concerns can be addressed. However, if I still have concerns afterwards, I don’t doubt that you will continue to insult me.

          • I just noticed that you DID tell the author of the article to cease and desist. I don’t know why you would bother–if a person writes something in an honest way, he’s not going stop because someone tells him to–if a person is writing something for dishonest reasons, he’s not going to stop when he’s merely told to.

            It seems to me some common ground can be reached given what I have read from your link–so far I see the respecting and enforcing of contracts to be the answer; so, are we in agreement that there is no standardized or arbitrary law that should be applied to the concept of IP?

          • I’m still reading through your link–which linked me elsewhere but just wanted to make a distinction between a priori knowledge and the actual copying from media someone’s communicated ideas when it comes to ownership. We all have a priori knowledge and may come pretty close to communicating that knowledge without ever having copied it.

          • Strangerous Thoughts

            Modern insights into freedom

            The economic principles of intellectual property and the fallacies of intellectual communism

            From Fallacy 6 “Much like one can tolerate the occasional trespass of children on one’s property, while employing the full force of the law against much larger and significant acts of trespass (such as parking one’s car on the neighbor’s lawn), tolerating some piracy is not a renunciation of property rights. In fact, that information producers must tolerate piracy is evidence of the state’s violation of their property right, as the state by its monopoly on property protection increases the costs of protection of their rights.”

            How does the state have a monopoly on property protection? Certainly, I don’t think that my security or the security of what I choose to protect or keep secret is up to the state. Moreover, I do not think, and never said, that everyone should, God forbid, be forced to give full disclosure of his or her thoughts and applications–that’s up to the individual.

          • Okay, that’s it for today. I have a 101 other things I’d rather do–I must be unimaginably lazy; but look at it this way, at least it will cause me to cease and desist, for a while anyway. LOL

          • All in all, I’m not sure it’s the copying of intellectual property spoken of in the link that is at issue. If I purchase a movie that has a copyright, I understand that I am contracting not to copy that movie. I think it would stand to reason that the producer can will that copyright in perpetuity if he chooses, as well–so the expiration of copyright by law seems suspect (agreed). But how I use the ideas that I may have derived from that movie, would not, under that contract, make me have to pay royalties to the producer, no? Also, it is with patents, of which the link does not seem to support, where I think most of the controversy is. Another topic that concerns me, and why I am suspect of all the IP hype, is that if China’s government, say, hacks into Microsoft and benefits from the information it finds while diluting profits for Microsoft, it is my contention that the American people, through its national government (which was not meant to be) are NOT responsible for rectifying that crime. Perhaps if our government didn’t twist arms in having backdoors built into all the systems for its own perverted use, if I understand that correctly, then, perhaps, China couldn’t hack into Microsoft. Also, I am concerned that innocent people may be sued left and right by producers for rather nitpicky and rent-seeking things. Can we reach some understanding and agreement here?

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            Strangerous Thoughts

            Modern insights into freedom

            The economic principles of intellectual property and the fallacies of intellectual communism

            Posted on November 14, 2010
            Fallacy 12: We cannot know that all instances of media have been protected by copyright, therefore counterfeiters are presumed innocent

            “As stated before, in order for someone to legitimately come into possession of scarce information, he must first have a contractual relation with the producer of this information. Therefore, if someone is accused of breaking a copyright, he must demonstrate and provide a witness to the fact that his contractual relation to the intellectual property owner was not limited by copyright. If he cannot demonstrate any contractual relation having been concluded, he is necessarily a violator of property.”

            I need to understand this better because off-hand it seems to turn the preponderance of evidence on its head. Two concerns: 1) If a person comes upon material freely on the internet and copies it on his computer, how does the plaintiff go about knowing that? 2) Is it not possible, and therefore a pertinent argument that the producer may have put the material on the internet without copyright information? Perhaps sales were down, he or she was down and out and wanted a way to extract more royalties. Do the laws of economics not conclude that people who are unwilling to pay for material may take it if it is free–marginal utility and all that?
            So, obtaining the information of a person’s personal downloads and assuming that the person stole the information because of no evidence of contract with the producer does not seem like a case to me. If copyrights are effected by the technology of the internet, in all practicality, it would seem that entrepreneurship is needed for protection–not new and suspect laws. If search and seizure rights and the burden of proof in civil cases have to be violated in order to protect copyright, then we have morphed into being ruled by men, not law, in my estimation thus far. Your rebuttal, please.

    • I’m not going to answer this question because there are many Austrians that can shed light on this; but, my concern is with the notion that the only reason someone invents something is to make a profit by state barriers to entry. I believe it used to be that inventions created more efficiency in providing for one’s way of life. The end was to come up with a more efficient way of picking cotton, say, to free up some time–not extracting capital from the community that already had or could apply those same means without him. If someone wanted to pay him to assemble pieces or for his expertise, that’s one thing. Patents created a way of expropriating from others that used similar technologies as a matter of course, as I understand it.

  2. This has now become tedious. All of the objections to IP from “libertarians”, etc. have been refuted here:

    To date, NO ONE has answered ANY of those refutations. Not. A. Single. One.

    Please answer those objections, or cease and desist. *You are harming* libertarianism and Austrian Economics; as the anti-IP arguments are fallacious at best, dishonest at worst, and extremely discrediting in general.

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