Sunday, September 29, 2013

Kinsella's Kool-Aid - The Real Reason Libertarians Oppose IP

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.


  1. Your grasping at straws. Don't fall to this level of speculation.

    Because I feel generous, let me leave you with the pseudo-code for enumerating all the ideas, patterns, movies, music, blueprints, patents, etc that have ever been invented and will ever be invented:
    var i
    while (true) {

    Information and ideas are just bits. They are trivially enumerated, although some are more useful than others.

    1. Saying that an intellectual work is "just bits" is like saying a human being is "just some carbon, calcium and water". Code designed to generate every random combination of symbols fails to capture the essence of meaning, something vital to real humans.

    2. @ Julien: You're.

  2. Tend to agree with the first commenter here. The first seven paragraphs are pure gold. I'm afraid the rest are tailings.

  3. I can't think of any other reason the Mises scholars would suddenly abandon their normally high academic standards. I'm open to alternative explanations, should they be forthcoming.

  4. "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?"

    You have no theory as to why I would adopt this view, since I have made money off of both patent and publishing; so you punt on it, and say "more importantly" as to why others agree. And it's not just Mises scholars who agree with my approach; left-libertarians and anarchists basically are all anti-IP. And not all of them for my own reasons; there have been many others before me or roughly contemporaneous who were anti-IP and have had some infuence/effect/following--Benjamin Tucker, Sam Konkin, Wendy McElroy, Tom Palmer, Roderick Long, and many others.

    "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."

    You seem to be saying that people who do make money off of IP are reluctant to oppose it (unlike me, I guess). Well, say you are right. No one in the world is surprised that people fight for laws that enrich them. This is true of lots of unjust laws and programs, such as public education, the military-industrial complex, and so on.

    1. And let me say also: what you are doing here is simply begging the question--by just *assuming* the "Mises scholars" (and me) are wrong, and jumping to psychologizing about *why* they are wrong. You can't psychologize about why someone is wrong without first establishing that they are. You are trying to argue that because someone has an interest in making or adopting a certain argument, then the argument is wrong. That just does not follow.

      Oh, and for another prominent anti-IP Austrian, see Hoppe. And DiLorenzo. And Walter Block. All of whom have had well-selling books.

    2. You're absolutely correct that whether an argument works for or against one's personal interest has no bearing on that argument's validity. I admit to writing "Kinsella's Kool-Aid" while nursing very hurt feelings caused by your personal attacks against me. For example, you asked me if I had "made lampshades out of Jewskin". I was so upset that my 10 year old daughter asked me what was wrong.

      While it's true that THIS article does not delve much into my positive case for IP, nor my critique of anti-IP, it is ludicrous for you to suggest that I have not made those arguments.

  5. A couple of thoughts. Kinsella's book is available for free in PDF form here:

    A quick search shows no instances of the words 'rivalry' or 'rivalrous' in this book. I have heard him use those words frequently in podcasts, and I believe he's always defined them. The book does use the words 'scarce' and 'scarcity'. That term is first referenced on page 29, where he does appear to define his use of it as follows:

    scarcity—the fact that there can be conflict over these goods by multiple human actors

    So you don't need to do a "careful reading" of the book, just do a quick search for the very first instance of his use of the word, and you'll see that the very first thing he does is define it. Did you actually read his book?

    1. Scott, you're right. See Update at the top of the article.

  6. Also, you state:
    "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."

    So how does my "experiencing the value or benefit of" your idea interfere with your "experiencing the value or benefit of" that same idea? The only answer is that my use of it can somehow interfere with your ability to maximize your financially profiting off of the idea. Sorry, but you don't have an ownership right to "potential profit". If you believe that you do, then are you consistent in your beliefs and also believe that competition should be illegal? Under that same mindset, if I'm the first person to open a hot dog stand in my town, no one else should be allowed to open one up unless they get permission by me, and possibly paying me a "license" fee.

  7. Alex,
    Your speculative logic here just doesn't add up. You're basically saying that because some Mises scholars realize their works already have little market value they're going to concoct some master plan that will take that already small value down to nothing whatsoever. Why would someone do that? Why would someone work against their own financial incentive? Why would Kinsella promulgate a philosophy that if successful would basically put him out of business? In my view, someone working against their own financial interests has more credibility, not less, on such a subject. They are either crazy or deeply committed to upholding a moral philosophy despite any personal harm that may come to them because of that philosophy. I've read enough of the anti-IP literature to know these people are clearly not crazy. The arguments are logically sound.

    The main problem you seem to have with anti-IP is that on the surface the anti-IP position appears to be adopted by jerks that just want stuff for free (songs, software, etc). That people somehow think all this stuff should just come to them at no charge and so what if the author never gets paid. Ok, yes, I'll grant you that, some people do come off like that, particularly the young folk who engaged in rampant digital file copying... they just want free stuff and don't really care about philosophy of property or not. So, you had a knee jerk reaction to not want to be associated with that crowd and so have worked really hard to come up with a way to redefine things in such a way as to "prove" anti-IP is wrong. In other words you are guilty of the very thing you are accusing the anti-IP folk of doing: starting from a conclusion and working backward to prove that conclusion in any way possible.

    1. Hypothesizing a conclusion is not the same as assuming a conclusion. My approach in Intellectual Space is to create logical rules regarding property, then test physical property and intellectual property with exactly the same rule.

  8. The problem though is you are running into the guilt by association fallacy. For example, secession is a perfectly legitimate process of political separation for two peoples. However because the racist confederacy seceded the whole notion of secession was cast in a negative light... people now automatically link secession=racism... therefore people that come out in favor of it are automatically thought to be racist (even though that is totally absurd). In the same way anti-IP is totally legitimate, however some people (the file sharers) are employing that philosophy to achieve their own illegitimate ends (acquiring something without paying any price) and thusly “tainting” the notion of anti-IP with their behavior.

    But the problem with what they're doing is not with anti-IP, rather it is with the IP framework we have today that makes such loopholes possible for people to exploit. The solution is not to "fix" IP, but to get rid of it. This would then establish new methods of content distribution wherein the stakeholders would be responsible for their remuneration and so would use the system best suited for their situation to ensure they are appropriately compensated... rather than merely relying on big daddy government to go around with his stick and beat people over the head if they happen to get caught. The current system fails because it relies on one single entity to enforce the compensatory system. A non state based system would succeed because there would be layers and layers and layers of mechanisms that would avoid the issues we see today. Just because one is anti-IP does not necessarily mean one is saying all such products MUST be free for everyone. It simply says no one party can justify a monopoly of production for some good just because it happens to be the fruit of a particular idea. I mean when you come down to it, ALL production in the world is the result of an idea… so why legitimatize a monopoly for some production here but not this production over there? If we’re going to talk time limits, then that is even more arbitrary, who picks the time frame? Why X years? Why not X+ 1 or X-1 years? Arbitrary edicts cannot be the basis for an a priori moral philosophy.

    1. I agree with your point about guilt by association, and your example regarding secession is well taken.

      Your second paragraph is internally inconsistent. You refer to "stakeholders" being "appropriately compensated". Having a "stake" in something means a property interest. Compensation is "appropriate" only under the terms of a contract, and one may only contract with that which is one's property.

      Without a property right in intellectual goods, there is no stake, no contract, and no appropriate compensation.

      I agree that arbitrary time limits on intellectual goods should be abolished. If there is a legitimate property right, it is forever, so long as the property object exists. Copyright is legitimate property, patent is not, for the reasons discussed elsewhere.

    2. One does not need a property right in intellectual goods (IG) in order to be a stakeholder in such a good. Property rights can exist only for rivalrous goods (if I have it then you don't and vice versa). However - contractual rights can exist for IG. If one is the originator of the IG then I would say at all moments prior to its dissemination to others one has a controlling "right" over it that is functionally equivalent to a property right, i.e. exclusive control over a rivalrous thing (since the originator has it and no one else has it). However - and this is key - the moment it is disseminated to others that equivalence vanishes due to the destruction of its rivalrous nature at that moment of dissemination. Once out you can't put the toothpaste back in the container, it is an irreversible transformation. If one chooses to give the IG away, then one has no right to stipulate how others may use the information because the usage is non-rivalrous... you can continue to do what you want with the IG while those you gave it to use it in whatever way they want to. If one however contractually transfers the IG then such contracts would govern the behavior of others. However, in practice contracts are often not the best mode of ensuring remuneration for IG that are trivially duplicated - in a perfect world they would be, but we don't live in a perfect world. So one must be clever enough to come up with mechanisms that duplicate the financial outcome of a contract without employing a contract per se (such as up front payments, cascading distribution, etc). So, in short, rivalrous property is governed by property rights (because the right dictates who may have legitimate exclusive control) and IG are governed by contract rights.

      But, you lost me at the end, so you're for copyright but not for patent? Aren't both IG? On what basis do you say one is legitimate property and the other is not?

    3. One may only contract with that which is one's property.

  9. However, just because IP is not property doesn't mean it is "wrong" to acquire income from it. I can do a jig/dance on stage and people might pay me... but that doesn't mean I can establish a property right in that jig/dance because I thought of it first. Others can do the same thing and their doing so in no way prevents me from continuing to do the same thing (non-rivalrous nature). Their doing so might lower what I can charge and so I could assert I have been harmed... but that is the very nature of competition. If harm is a valid basis for asserting a tort claim in this situation then it must be a valid basis in all situations, i.e. harm=tort claim, not harm=tort if this or this but not that. If exceptions have to be built into a rule then there are problems with the rule itself. So if we're saying a tort claim is only harm if some sort of IP was copied, but not if it's say a pizza joint and burger joint competing then this is just non-sense and inconsistent... in other words harm arising from loss of value from competition can never be a valid tort claim.

    1. All property is a monopoly. Property is, by definition, the right to exclude others from using. In other words, property is the right to monopolize and prevent competition regarding the use of a particular object.

      Thus to say that anything which can be construed as "reducing competition" is a violation of property rights is a paradox, what Molyneux likes to call "self-detonating". KaBooooom. Your statement just exploded.

      You may argue that property exists to eliminate conflict, not competition. I would accept that semantic distinction, then restate my response as follows.

      What you characterize as "competition" is actually "conflict" over the scarce resource of my rightly homesteaded intellectual property object. Property rights exist to eliminate conflict.

    2. Property rights exist to enable one owner alone to use it, NOT TO REDUCE CONFLICT! Property rights may increase conflict as they require physical force to exist.

    3. Ok, it's a monopoly over a particular set of atoms, in the same way I have a monopoly over the labor of Greg Morin... but this is a distinction without a difference - my labor is universally interchangeable with the labor of anyone else with the same skill set. In practice nobody cares if I have a "monopoly" over my labor. If I'm selling widgets and you're selling widgets we are still competing even though each of us has a "monopoly" over the different set of atoms in each widget.

      Sorry, competition and conflict do not mean the same thing.
      conflict: a serious disagreement or argument, a prolonged armed struggle
      competition: strive to gain or win something

      Or rather I would say, those in conflict may be competing with each other (to win the conflict) however the converse is not true, those who are competing are not necessarily in conflict. So yes, property rights exist to eliminate conflict, not competition... but not unjustifiable conflict (as in conflict over thought something up first), otherwise we could establish property rights in political conflicts in order to eliminate those conflicts (and maybe that is what we do today - voting says the winning side has an exclusive right to rule in order to eliminate conflict between the two sides disagreeing...but it is still wrong)

      But wait, maybe we're not understanding each other here, it sounds like you're saying you think I'm saying that property rights are SUPPOSED to eliminate competition? If so, no, I'm not saying that at all. I was using that as an absurd example to counter what I interpreted you to be saying which was that if one can homestead "value" then any act which reduces value (competition) must be prohibited.

  10. Alexander, I guess I'm not familiar with the line of reasoning that results in one believing copyright to be valid, but patent to not be. Please enlighten me.

    1. Murray Rothbard gave the argument in MAN ECONOMY & STATE and elsewhere, if I recall correctly. He also gave the argument to me in person.

      In my book, the whole rivalrous, non-rivalrous is a red herring. One could use my land for certain purposes and not interfere with what I wanted to use it for. . . so what? I shoot-em if they trespass.

    2. @ Scott - My thesis is original. Copyright is homesteading, patent is not.

    3. @ lloyemillerus - Rothbard did indeed support copyright, and reject patent. He did not explore the issue very deeply, I do.

  11. Socialist "libertarians" often think something is "yours" only while you are using it. When you stop using it other should be allowed to use it. Absurd, non-sense, of course, irrelevant to property rights. 2 people using the same screw driver at different times makes for non-rivalrous use?

  12. I'm not sure I understand the critique here. You suggest that Kinsella's argument is circular, but that of itself doesn't determine whether it is acceptable. After all, question begging is an informal fallacy, i.e., it isn't fallacious by means of its form, such as is the case with affirming the consequent, or denying the antecedent, but rather by particular use, namely when smuggling one side of the very question being debated into the premises. Indeed, any argument from definitions are question begging, but virtuously, i.e., licitly, so.

    Thus, simply point out the circularity of Kinsella's argument is insufficient to condemn it. Whether the circle is virtuous or vicious is a matter for discussion. But, it seems prima facie acceptable to use definitions couched in physical terms for property, given that property has historically been seen as a primarily physical good, until someone gives reason to suggest that the definitions are outdated, or otherwise infelicitous. Perhaps introducing IP does that, but then the advocate of IP would have to show why the old definitions are harmful, or generally wanting. It doesn't seem fallacious or dishonest, however, to maintain the older definitions *even in light of the IP debate* simply because someone has challenged them. Libertarians, for instance, whether right, left, anarchist, and so on, shouldn't have to suspend their definition of liberty simply because Chomsky and others don't like it and openly challenge it. We could, of course, defend our interpretation against theirs, or attempt to show why theirs is inadequate, but neither tactic entails suspension of either definition.

    1. The reason that the a strictly physical definition of property is harmful is that it makes a legal system is impossible.

  13. "I would define use as "experiencing the value or benefit of"."

    No! Using an object is doing something physical with it. You can use a cd by placing it in a player and play it. Experiencing the beauty of the music that follows is only the result of using it. It is not part of it. So "experiencing the value or benefit" has got nothing to do with the use itself.

    You want to snuggle in 'financial exploitation' as a use, but that's not using an item. That's only a desired outcome of the use.
    What if a baker (no pun intended) would say that the use of his bread is to 'experience the value or benefit of it'? If that's really the use, then he would have the right to prevent others to start a bakery in the same area, because then it would be rivalrous.