Some writings have turned the world upside down. They toppled tyrannies. They sparked revolutions and ennobled humanity. The Magna Carta. Thomas Paine’s “Common Sense.” Thomas Jefferson’s “Declaration of Independence.”
Great scholarship can do the same.
In the 20th century, there was Ludwig von Mises’s “Economic Calculation in the Socialist Commonwealth.” This 1920 essay astonished the whole of Europe with the claim that socialism was impossible — not just inefficient but completely and fundamentally unworkable. No one ever refuted him but this essay was the subject of debate for decades.
In our time, there is an essay of similarly epic importance. It is “Against Intellectual Property” by Stephan Kinsella. It first appeared in 2000 in a low-circulation journal. But those who read it and seriously considered it never quite saw the world the same way again.
This week, this book-length essay is being released into the Spy Briefing Club, with a new introduction by the author and an editorial preface, along with additional commentary.
I was among those who came to be fundamentally changed by this piece.
Initially, I confess, I thought the whole essay was nuts. Maybe not completely wrong but just wrongheaded.
Why was Kinsella taking on the idea of intellectual property given that it is such a settled aspect of law? Isn’t holding a patent or a copyright kind of like holding other forms of property? Maybe the state as such shouldn’t be enforcing it but doesn’t it exist as a natural and normal part of the human community?
It had been decades since anyone really wrote in depth on this topic. There was Fritz Machlup in the 1940s and Murray Rothbard in the 1960s. Neither took on the entire apparatus of intellectual property (IP) as such but only criticized specific applications and supposed benefits that had been frequently cited on behalf of patent, copyright, and trademark. Hayek also had some passing comments that suggested opposition to all IP but the passages lacked passion and conviction.
But whatever: did the whole thing really matter that much? The year 2000 was really before the crisis became clear. There were some controversies growing about file sharing at the time but who could have predicted that government would later use the excuse of intellectual property as a way to smashing the whole of the digital world?
Here we are twelve years later. The government is using its jurisdiction over “intellectual property” to shut down websites, strangle new technologies in their infancy, jail teens, censor books and music, rob consumers, reward monopolists, increase prices of pharmaceuticals and agricultural products, shackle enterprise, and enhance the police power over our right to speak and act.
In fact, IP is the great excuse for the most dangerous form of 21st century tyranny over our lives. And can you believe that it is all done in the name of enforcing property rights? There are echoes of an older confusion that invoke property rights to justify chattel slavery.
This is catastrophic. How did we find ourselves in this mess? Kinsella, as a practicing patent attorney, knew exactly how. He saw the fundamental error not only of the implementation of IP but even the whole notion.
His astonishing conclusion: there is no such thing as IP in a free market. IP law is incompatible with freedom itself. It must be completely abolished in the name of freedom, prosperity, and human rights.
I won’t attempt to present his entire argument here. He started at the very beginning. Why are there property rights to begin with? They exist to resolve conflicts over scarce resources. If there were no such conflicts — if I could take a cookie from a jar and thereby cause a new cookie to instantly reappear — we would not have any use for property rights at all.
The important question, therefore, presents itself: what is scarce and what is not? Ideas are not scarce. They can be copied and copied unto infinity. There is no need for property in ideas at all. What about the value of an idea? No one owns value as such; that is determined by acting human mind. What about stealing ideas? You can’t steal what is infinitely copyable.
Note carefully: It is not possible to enforce “intellectual property” without coercing third parties that had nothing to do with economic exchange. In other words, IP is always aggression. If one idea is codified and protected by the state, the rest of humanity is thereby shackled.
If you copyright a song, even if I never heard it before, I’m forcibly prevented from writing the same melody or from performing this sequence of notes without paying you on your terms. If you write some code and patent it, I cannot write the same code even if I had never seen yours.
With IP, the government grants a monopoly to a single producer. This is just like the Middle Ages when the prince would permit only one silk trader to sell within his domain or one bricklayer to build all walls. Monopoly is the opposite of competition. IP is monopoly. Therefore it wars against free-market competition, which is to say, that it is contrary to free enterprise.
History bears this out. Real property rights have always existed. Intellectual property is an invention of modern legislation. It began in England in the 16th century and it spread, slowly at first and then faster. Even then, there was no such thing as universal copyright until just before the turn of the 20th century. Most all great art, literature, and industrial innovation took place without it (Shakespeare, Bach, Beethoven, Goethe, etc.)
Even 30 years ago, it would have been completely unthinkable that seeds and software would be rolled into this racket. A few industries are safe and therefore vibrant and profitable (fashion, for example) but there is a terrible thicket growing around everything else.
More recently, the whole system has gone nuts to the point that obsession over patents consumes vast amounts of industrial energy. It is corrupting the capitalist system. Steve Jobs used to say that “great artists steal.” Now Apple routinely accuses everyone else of theft and gets the government to hobble its competition. And copyright now poses a grave threat to the very spirit of the digital age.
What’s the answer? End the whole crazy system. Restore competition. With it comes innovation and growth, peace and free enterprise, cooperation and sharing.
No, this doesn’t mean that all non-scarce goods must be provided at zero price but only that if a producer wants access restriction, it has to emerge from the market and not be enforced by the state. Regardless, the market tends toward openness not restriction.
You don’t accept the conclusion? That’s fine. It took me some six years to come around to Kinsella’s point of view. And when I finally did, I became gradually amazed at the implications.
I discovered that this essay is not just about IP. It’s about reorienting our understanding of the way society functions. It restores the idea of learning and emulation as market forces worthy of being taken seriously.
One begins to realize that the world we see and touch, the world of scarce goods, represents a tiny fraction of reality. Ideas are the driving force of history and once those are known, they become part of the blessed commons that makes the world work.
Even if you do not eventually agree with him, think of the benefits of working it out in your own mind. This subject causes you to think seriously about fundamentals such as property rights and human freedom. You consider critical questions such as the role of government and its impact on human association and freedom of speech.
You can disagree. Maybe you can refute him. Maybe he is fundamentally wrong. But what is the most important work that we really do here on earth? We think. We turn over ideas in our mind. That’s the most important work we do. The first step to saving civilization from tyranny is thinking.
I know of no essay in the last half century that causes our minds to work so hard. In this sense, Kinsella is our benefactor.
It is my great honor that Kinsella has chosen the Spy Briefing Club as the venue into which to release this new edition of his remarkable essay.