UPDATE: Readers have pointed out some factual errors in this article, and I wish to correct them. I have indeed read Kinsella's book "Against Intellectual Property", but I have also read many of his other published articles, and had a podcast conversation with him, in addition to various email and discussion thread interactions.
My confusion arises over the use / non-use of the words "scarce" (which appears in the book) and "rivalrous" (which does not). In many subsequent writings, Kinsella uses "rivalrous" to mean what "scarce" means in the book.
As always I appreciate substantive criticism, and I do apologize for sloppy research here. However, I don't believe this is likely to change my opinion on the issues. For posterity I will leave the article and comments below as they are, now relabeled "first draft", and work on a revised version of "Kinsella's Kool-Aid".
-Alexander Baker October 4, 2013
Kisella's Kool-Aid - First Draft
The Austro-Libertarians have given what I consider to be the correct theory of economics. In the process, they earned my respect, and they accomplished both of those things the same way: by steadfastly adhering to a consistent set of core principles, then diligently exploring all of the implications, regardless of whether the conclusions reached might be popular or not.
Sadly, on the issue of intellectual property, many libertarians, led by Stephan Kinsella, have abandoned academic rigor and principle. Instead, they repeat the basic tenets of Kinsella's attack on IP, without ever stopping to consider if Kinsella has given a defensible thesis. He hasn't.
Kinsella Doesn't Define Key Terms
Kinsella's anti-IP position is crucially founded on showing that IP is not scarce, and not rivalrous. Scarcity of physical goods gives rise to possible conflict, thus necessitating the allocation of property rights in physical things. Since IP is not scarce and not rivalrous, Kinsella argues, there is no need and no justification for IP.
However, a careful reading of Kinsella's central work "Against Intellectual Property" reveals a very troubling shortcoming: he does not define "scarce" and does not define "rivalrous". To fail to define the very terms upon which a thesis stands is inexcusable. The reason for Kinsella's subterfuge becomes clear upon studying the book. He pulls the clever, but intellectually dishonest trick of smuggling his conclusion into his premise.
Kinsella Smuggles his Conclusion Into his Premise
Consider: "Rivalrous" means that "use by one interferes with use by another". Clearly we also need to understand what "use" means. I would define use as "experiencing the value or benefit of". With these definitions in mind, we can test whether or not something is rivalrous, and thus whether it is rightful property.
But Kinsella never defines those terms explicitly, and that's where it gets sneaky. Throughout the book, Kinsella mentions that one can "use" an intellectual work without interfering with someone else's use. But what he means is that they do not interfere physically. Do you see how this works? Kinsella is implicitly including "physical" into the definition of "use", and therefore into the defintion of "rivalrous".
In context, we can conclude that Kinsella is defining "rivalrous" as "physical use by one interferes with the physical use by another". Obviously, if property requires rivalry, and rivalry must be physical, then property must be physical. Thus Kinsella assumes his conclusion. Had Kinsella defined his key terms explicitly, he could have written a very, very short book!
Why Have the Mises Scholars Endorsed Kinsella?
It's clear Kinsella wanted to attack IP, by all means possible, and he's been very successful at doing so. But the question reamins: why? After all, Kinsella himself is a patent attorney and a successful author, having earned over $1,000,000 in royalties, according to him. Why would Kinsella take such a position, and even more importantly, why would the Mises scholars embrace a theory so obviously lacking in academic rigor?
The answer, I'm afraid, is all too plain to see. The Mises scholars have long ago realized that their own intellectual property simply isn't worth very much. That is not to say it is bad. Indeed, I feel that the Austro-libertarian literature comprise the finest books ever written. But the simple fact is that books and videos on economics and philosophy are never going to sell as well as those about Harry Potter or NFL football or the Kardashians, or whatever.
The Napster Generation
The early 2000's saw the great advent of Napster and other file sharing sites, where millions of mostly young people were happily sharing songs and movies, without a care in the world for copyright violations. Then they got caught. The fight was on, as media giants began suing file-sharing sites, and even individual users. The libertarians, led by Kinsella, sensed a golden opportunity.
Since their own intellectual property is not worth very much anyway, they schemed, why not create a theory denouncing the very concept of intellectual property? This is an immensely attractive idea to the Napster generation, desperate for guilt relief about their iPod's full of pirated content. Join the libertarian movement, drink Kinsella's Kool-Aid, and you never have to feel bad about downloading ever again! Those big, bad media companies just want to use the coercive power of the state to enforce their monopoly, and destroy your freedom.
And the strategy may work out for them, I'm sad to say. Libertarianism appears to be more popular than ever, and that's a good thing, as far as it goes. But to me, libertarianism is nothing without a strict adherence to principle. If we must sacrifice principle for membership, count me out. I just don't see eye to eye with intellectual communists.