The Fraud of Intellectual Property

The Fraud of Intellectual Property


Copyright. Patent. Trademark. None of these concepts apply comfortably to Bitcoin which was forged in open source and plunked into the public domain to function as a collaborative venture. Intellectual property (IP) itself seems antiquated in the Internet Age with gluts of free data just a Bittorrent away. But IP is an active issue within the crypto-community, especially regarding customized blockchains in which there is tremendous potential for profit.

The trend toward IP will accelerate as the blockchain and digital currencies go mainstream. In fact, blockchain tech is already being used to register digital copyrights in a way that is both immutable and timestamped. It is called “the poor man’s copyright” because registration is often free. And it cements together the concepts of Bitcoin and IP.

But can someone actually own an idea? This is not asked as a legal question but as a practical one. The law can grant artificial property rights in anything to anyone, including the ‘ownership’ of another person. Such a law does not make slavery proper or logical, however.

IP is a contradiction in terms and an artificial construct that blocks human progress. IP would obstruct the development of Bitcoin and similar technology while sharply diminishing its value to individual freedom.

What is Property?

Who Owns What Is In Your Mind? The title of this book captures a commonsense objection to IP. Most people would indignantly declare, “no one owns what’s in my mind!” And, as long as information is private, then it is ‘owned’ as part of the natural jurisdiction everyone has over his body. You own undisclosed ideas in the same manner as you own air in your lungs…that is, for as long as the air is in your lungs. Taking your ideas without consent would require violence, perhaps in the form of torture.

But what happens when the idea ceases to exist only in your brain? If a scientist leaves a chemical formula scrawled on a blackboard that you accidentally glimpse, do you have a right to use it without the originator’s permission? To do so might be immoral and it certainly is in bad taste but is it a violation of property rights? Those who argue for IP, on any basis other than contractual, are claiming the law should protect ideas as it protects other property.

The IP debate devolves to the question, “What is property?” IP advocates generally define it as tangible or intangible ‘goods’ that have been acquired through discovery, labor, trade or as a gift. IP deniers often ask a more fundamental question: “Why does the concept of property exist in the first place?”

Concepts are problem-solving devices that arise only when people are confronted by a need or a desire. The concept of ‘property rights’ arose as a means to solve conflicts caused by scarcity. All tangible goods are scarce, which results in a competition for their use. Since the same apple cannot be used at the same time and in the same manner by two people, it is necessary to determine who should have the apple. If you lived in a world where thinking of an apple made it drop into your hand, there would be no scarcity and no need for the concept of property.

But ideas can be used at the same time and in the same manner by an infinite number of people. They are not scarce except when a scarcity is artificially enforced, usually by law. In short, IP contradicts the very purpose of property.

IP also lacks several of the defining characteristics of property. For example, ideas are not transferrable; that is, they cannot be alienated. Thomas Jefferson famously stated, “He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”

The inalienablity of ideas is a result of the nature of ideas. They are not wooden, metal or anything else physical in the external world. Ideas can be expressed in physical form, certainly; the principle of electricity can be expressed by a generator. If so, the person who discovered the principle and built the generator owns the machine but not the principle which others remain free to understand and use themselves.

Ideas in your mind are an aspect of who you are whether or not you originated them. For one thing, every idea you experience becomes immediately different because it is automatically integrated with other thoughts, memories and associations that are uniquely you. For someone to claim ownership of them, therefore, is to claim a property right to your body. It is a form of partial slavery.

Ideas in circulation are not property at all. Perhaps a ‘property’ right could result from a contract but this would almost certainly break down, and quickly so. For one thing, how would a third party who glimpsed the idea be obligated not to use it?

Copyright v. Patent

Copyright and patent are often treated differently, and for one reason.

Simultaneous and independent inventions are not uncommon because many discoveries are almost logical extensions of ‘the state of the art’ in science or technology. A commonly cited example is the independent formulation of calculus by Isaac Newton and Gottfried Wilhelm Leibniz. Advocates of IP dismiss the idea that two men could independently originate Hamlet, however. Other writers might use the themes of Hamlet, perhaps, but they had no business using the words of the play for their own benefit.

A complex argument would require much more space than a 1000-word article. (Click here for a more detailed presentation.) It may be sufficient to reduce the pro-IP position to a logical absurdity. Namely, if a form of expression or arrangement can be property, then why limit the ownership to words? If a printer cannot publish an ‘unauthorized’ Hamlet, why should a shoemaker imitate a competitor’s new shoe style or a garden plant an arrangement of flowers that he has seen? How can a cook duplicate a recipe without the originator’s permission? In short, why doesn’t every person own every form of expression that they create? There is nothing legally sacrosanct about words or code.

And, yet, such a move would be absurd because it would place society in a straitjacket.


Advocates of IP inevitably argue that IP is necessary to promote invention and innovation which won’t occur if people don’t own the products of their labor. (Bitcoin itself refutes this argument, of course.) The reality is the opposite of what is being claimed. The 19th century individualist anarchist Benjamin R. Tucker explained, “The central injustice of … [IP law] is that it compels the race to pay an individual through a long term of years a monopoly price for knowledge that he has discovered today although some other man … in many cases very probably would have discovered it tomorrow.” IP stifles invention and innovation by granting a monopoly over ideas.

If Satoshi had not thrown Bitcoin into the public domain, it is difficult to imagine the explosion of cryptocurrencies that’s occurred in so short a period of time. Rather than hinder invention and innovation, the free and wild Bitcoin has caused a deluge of new ideas and expressions of them.

Significantly, Satoshi did not impoverish himself by going public as evidenced by the one million bitcoins in his wallet. Freedom and profit are not at odds. Monopoly and progress are.

What do you think about IP in relation to Bitcoin? Let us know in the comments below.

Images via Pixabay and GQ

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  • Hi all: I will be dropping by the commentary section today and tomorrow to chat and answer questions. Enjoy your Sunday

  • Patrick Little

    If a coffee mug has three handles, because I need to reach it from many different angles at various times of need, should I pay a royalty to the inventor of the mug or the handle or the inventor of the mug handle combination? I like to think I could give this idea to everyone and let the world have three handles, two handles or no handles. The variation that wins is a strength to which handle version I will invest in. This mental exercise may be something IP proponents should think about as ideas cannot be owned only invested in for a certain period of time. A blockchain could hold the votes and its value of interest while the ideas age and collect valued interest along with market value. Over time and interest you could have the inherit values of each idea and know the strongest version of the idea. As well as newer ideas like a stein cover to keep coffee warm or aluminum insulator to keep latte cool. A blockchain could hold the value but not own the ideas. If IP and Patent Lawyers could think this way, then the blockchain could be of use to many.

    • Hear, hear. A free market of ideas maximizes not only ‘value’ but also ‘truth’, which are closely related concepts. I like the image of a 3-handled cup because it is so unexpected that it makes you stop and think a moment — a good start for opening the mind of anyone who’s pro-IP.

      • Agree on truth as inherit characteristic of a free market. But, bailouts tend to suppress my thought of it as truth should include the failures. Monopoly has a right to exist if it can compete with multi-monopolies and anti-monopolies. I think there is room in the blockchains for all. Bitcoin Core or Classic is winning the evaluation to fiat, currently. And, Bitcoin Unlimited has had a failure in growth due to a protocol crash. I would keep an eye on Zcash, Dash, and Ethereum they are getting through their growth period and growing stronger everyday. IP could be carried in more than one public ledger as insurance or just prudence…

        • I have to say that this argument against bailouts never occurred to me but it seems self-evidently true now that it has. Bailouts as an attack upon the truth of the free market. I like it. As for monopolies…I take a Rothbardian view of them and believe that they could not function for long without without state protection. But I’m happy to be proven wrong by having them compete in an unfettered marketplace and see what happens. Thanks for the post.

          • Ngerikl

            I for One have nothing against the bitcoin and believe its just how money evolves, pretty much like how we were able to eventually accept the paper currency as a substitute for gold and silver. In fact, I remember being one of the first to give-in to its capabilities and how it can help fund important projects we only dream about in our small isolated communities. Circulation through the media and new mining apps had me once locked away 24/7 in our 2br apartment for weeks just testing the best bitcoin applications on the market. My wife began thinking I have lost it completely!.. Unfortunately, still does till this day thanks-to Facebook and Microsoft. Problem is, unless we support the system with stringent policies to guide its implementation across cultures- doing away the negatives often accompanied by growth.

          • Murray is a force today as he was when alive, bless his soul…I agree with him on almost everything. Although, some mechanisms like farming( maybe because I mine coin ) and invention will naturally sway in and out of monopolism based upon the scarcity or regionality of the product and consumption. But, on the whole I think the Cryptocurrency landscape is well fielded with technology and resources large and few worldwide. I think Murray Newton Rothbard would be supremely intrigued and full of thoughts on this subject and I dare excited at the strength against Fiat it has shown and showing. Users of Intellectual Property and Patents will come along shortly.

  • concerndcitizen

    Thanks once again for your clear and thoughtful article, Wendy. Ideas of course, want to be free.

  • Brad R

    On the subject of IP being an artificial construct that blocks human progress — there was a striking example of this in 19th-century Germany, which didn’t have copyright laws, at a time when other European countries did. This lack of copyright protection led to an explosion of German publishing, and is credited with fuelling Germany’s industrial expansion. Der Spiegel had an article about this in 2010, “No Copyright Law:
    The Real Reason for Germany’s Industrial Expansion?”. I’ll try posting a link, but if that ends up in moderation, you should be able to Google that title.

    • Ngerikl

      Thanks Brad for the helpful feedback.. A strikingly similar scenario which only confirms even more how powerful data really is and the significance it has over development; and whether or not, Copyright law may be the issue- it is something people just have to learn to overcome and improve with as technology progress. I’m more interested on the chain of events leading up to these sudden burst of positive changes. And are there negative ones we ought to lookout for?..

      • Brad R

        Negative changes? I can perhaps take the role of devil’s advocate here for a moment. One foreseeable change, if patents and copyrights were abolished, would be the increased use of trade secrets for protection. Indeed, this was one of the arguments for patent protection — that it would encourage the publication of useful ideas, since the inventor’s interest in the ideas would be protected. It’s conceivable that the lack of patent protection would encourage companies to be more secretive, and to place more restrictive agreements on their employees. (Though even with patent protection, employment agreements are pretty restrictive.)

        It might also increase the use of contracts in the place of copyright protection. Though in the case of software, license agreements are already pervasive, even with copyright law. (Note that you never own a copy of Microsoft Windows; even before the recent rise of software as a subscription, you only ever got a license to use Windows.) So this might be a negligible change.

        • Ngerikl

          Definitely.. totally against the abolishment of patents and copyright laws in that as much as possible reinforce and adjust to work more efficiently along with ever-changing tech and security requirements. However, when it comes to ideas it doesn’t necessarily mean the technical details behind a patented software or license behind a certain component essential in creating the idea, but the general concept that draw’s companies like Microsoft into the mix by choice and will only own a shares to the company should the inventor decide to invest on the stock if available. This is how I see the IP; pretty much like a special home recipe only the main chef knows about.

  • Ngerikl

    Great article and is a rare find as begins to clear things as they should. Totally agree about computers and no matter how well your able to manipulate or restore would always leave a traces and records of past events- when, where and how they came about. 🙂

  • Youliy Ninov

    “Ideas in circulation are not property at all”

    Ideas themselves cannot be property of course. But people conflate ideas with their implementation. The implementation/usage of an idea can be property.
    Moreover it is against the rules of the free market to say that people DO NOT have the right to implement IP laws on their own private property (land). Imagine a society composed of private land owners who all agree to implement IP. How is the latter against the free market (NAP in particular)?

    • Brad R

      It sounds to me like you’re arguing for a contractual implementation of IP protection. It is certainly possible to do that; consider the “shrink-wrap” licenses commonly used with computer software. But where this differs from IP law is that it cannot bind third parties who have not accepted the agreement.

      For example: you sell me an operating system for my computer, and I sign a contract agreeing not to copy or share that software. (I’ll leave the legal issues of “shrink-wrap” licenses for another time; that’s not relevant to the main point.) Then I upgrade my system and carelessly toss out the software you sold me, and a stranger finds it in the dump and begins to make copies for his friends. Assuming (easily) that you can trace that original copy to me, and that the contract provides for damages, and that you can convince a court that you’ve lost several thousand sales because of this, you can sue me to oblivion and take everything I own. But after that, what is your recourse?

      Now suppose that my home is broken into, or my computer is hacked, and my copy of your software is stolen.* Am I liable for being a victim of theft? What is your recourse?

      * Bear in mind that, unlike all other property, IP — in this case computer software — can be “stolen” without a trace; i.e., without depriving the original owner of his copy. I might not even know my computer had been hacked, and a copy of your software illicitly made.

      • Perhaps even our notion of “theft” needs to be reexamined in this context. That is to say, is copying something (with or without permission) stealing the thing that was copied. And, to take the even further, how do we deal with a situation when someone uses your computer without your knowlege and operates that software for whatever benefit they can derive from it. That is, they don’t even make a copy of it but simply make use of it.

        You could compare the last example with someone entering your home when you’re not there, sleeping in your bed and then tidying it up and leaving without you even knowing about it. Has this person done anything even legally incorrect if they are never discovered?

        • Brad R

          Interesting. Another example would be someone taking a shortcut across your property, without your knowledge. Assuming they did no damage in the process, what would a policy of strict restitution say about the act? Libertarians take the view that you can exclude people from your property, but I’m not knowledgeable about the corresponding legal theories regarding trespassing.

  • JdL

    IP stifles invention and innovation by granting a monopoly over ideas.

    But copyright does not protect ideas, only specific implementations of ideas. Thus, if I write a spreadsheet program, you are perfectly free to write and market a competing program with all the features mine has; you’re just not free to make money selling the program I spent many man-months (if not years) writing. What possible objection could anybody have to that?

    • Brad R

      I’ll let others address the objections to copyright in principle (and there are many), and confine myself to a few of the pragmatic objections.

      In the first place, you are incorrect. Under current law I would not be free to write and market a competing program, because copyright also encompasses “look and feel.” Search Wikipedia for the story of Paperback Software International, which was sued by Lotus for making a lookalike spreadsheet program.

      This highlights one of the pragmatic problems: where do you draw the line? The late and unlamented SCO tried to assert a copyright in widely used Unix/C header files. (For the uninitiated, header files do not include executable code; they merely define the interfaces between computer functions, and are needed in order to [i]use[/i] those functions. I once compared them to the table of measures inside a cookbook, e.g. that specify 1 tbsp = 3 tsp.) Should that be permitted? Can you copyright the C language implementation of min(x,y)? In how many ways do you think that function can be rewritten? Copyright does not allow for cases of independent invention.

      Then there are the problems currently addressed by the “first sale” and “fair use” doctrines. Suppose I have a computer textbook, and I want to make some notes on an algorithm it contains. So, to preserve the book, I photocopy the page and scribble on that. Have I violated copyright? Or suppose the algorithm contains an egregious error, that could do harm, and I choose to publicize that algorithm with my own comments to point out the problem. Have I violated copyright?

      Ultimately copyright is [i]not[/i] natural, and is wholly arbitrary (with lots of arbitrary limits, like fair use). And the computer industry in particular has shown that copyright is not necessary. I’m old enough to remember the time when it had not been established in the U.S. that computer programs were copyrightable; other mechanisms were devised to protect software from duplication. (I still have some copy-protected floppy disks.) And the open-source community has abundantly shown that IP isn’t necessary for software to be developed.

    • The implementation of an idea is an idea itself. I have no objection whatsoever to anyone using his own idea or protecting it through contract, although I believe the latter would quickly break down as people who are not under contract would access the spreadsheet at some point through some means. My objection is to anyone claiming an arrangement of code (such as a spreadsheet) and automatically prohibiting anyone else from using it. That is, I object to the non-contractual ownership of ideas and I believe the onus of proof is on anyone who makes the positive claim that ideas are property. Nevertheless, I’m willing to argue the negative. I object to IP because ideas do not fit the definition or characteristics which make something ownable. I could go into the massive obstacle IP presents to human progress and well being — the monopoly on certain drugs is a good example — but I think you are asking for the principled argument rather than the pragmatic one. I go into a great deal of detail on the arguments against copyright, if you are interested, in an essay published at the Mises Institute. Unfortunately, the commentary section seems to ban or drastically delay the posting of anything with a URL…so you’d have to google “Wendy McElroy intellectual property Tucker.” Then it will pop up. Thanks for the post.

  • I believe the point of IP law is to encourage the disclosure of GOOD ideas.

    The U.S. silicon valley establishment thought they could print profit by watering down IP protection which would allow them to use their resources to rapidly commercialise any good idea they came across.

    However the laws of economics have asserted themselves yet again and the best the valley seems to have these days is an expensive juice machine.

    The concept of ownership is based on the concept of possession. One owns what one possess. Thus the ownership of good information is only assured by restricting the possession of the said information.

    In the case of the U.S., the framers of their constitution, most of whom were schooled in the benefits of secret knowledge, enshrined a patent clause in order to incentivize exceptional thinkers to disclose their discoveries.

    They were learned men who understood that this was the only way their young nation would benefit from whatever talent was located within (and eventually without) their jurisdiction.

    As for bitcoin/block chain, it’s a loss leader, a means to an end, the real value to its originators lies in the upsell.

  • Brad R

    Youily Ninov – I saw your answer to my post, and had composed a reply to it. When I clicked “Post” I was informed that I could not reply to an inactive post. And when I reloaded the page, your answer was gone. Damned if I know why. There was nothing objectionable in your answer (not even a hyperlink!)

    I also saw your post twenty minutes ago, asking why your previous post had disappeared. When I attempted to reply to you, I again got “You cannot reply to a post that is not active.”

    Moderators – is Youliy Ninov on a blacklist?

  • Ngerikl

    learned a lot from this.. Awesome discussion.. thanks

  • Richard Keorkunian-Rivers

    Thanks for the Jefferson quote. I didn’t know about it or the McPherson letter it came from. Very good read in its entirety. It never occurred to me that Jefferson had a position on the subject, but I underestimated patent law’s importance in that era.

    I’m not sure I agree with the electricity analogy, but I admit that there is very little philosophical difference between devising a creative idea and discovering a physical law. In terms of effort there is no meaningful difference. But the reasons people would generally give for why the underlying idea is not owned by anyone in particular are different. People hope to benefit tangibly from understanding physical laws, but benefit in a qualitatively different way from e.g. reading fiction. Also it is commonly believed that the physical laws ‘already exist’ and therefore their prior existence is what makes them not subject to intellectual property, whereas Moby Dick did not already exist in any discoverable form except to the imagination of Melville.

  • Wendy, I wrote a rather long somewhat negative comment here, but it seems to have been taken down. Wassup?

    • Ned, I don’t know because I have no ability to edit the comment section and no interest in doing so. If it included a link, then they will hold it for moderation which can take a day or three. That’s happened to me. Sorry to hear of it because I encourage active debate.

      • Wendy, my comment has miraculously reappeared. See below. I know it wasn’t your doing.

  • Hi all: I understand some messages are “getting lost” and I’ve received some emails of complaint. I don’t know what is happening and I have no more control over the content of this section than any other poster. That is, I cannot delete or edit messages. I can only add and edit my own. If you include a URL in the text, I know that the message can be held for moderation or, perhaps, deleted. But I did not set that policy — I don’t set any policy on this site — and, as I said, I don’t know what is happening. Sorry for any frustration this is causing.

  • Fritz Knese

    Thank you!! I had been planning to write something like this, but you have done so wonderful a job that I no longer feel it necessary. One thing, intellectual property always depends upon coercion usually by government to exist. This should be anathema to any freedom lover!

  • Brad R

    Sorry, I don’t see it. How does “society” decide to implement IP laws? And how do you “impose” IP laws without force?

    It seems to me that either all of the property owners must agree to respect “IP laws” — that is, agree to terms controlling the use and transfer of intellectual property (suitably defined) — or a majority of the property owners will agree to those terms, and then require the minority to abide by them. The former case is functionally the same as a multi-party contract. The latter case requires the majority to impose its will on the minority, which requires the use of force, and is functionally identical to a state.

    You can have IP agreements (binding upon those who voluntarily accept them). Or you can have “IP laws” (binding upon third parties). Sorry if I’m missing a third way that you’re trying to propose.

    • Youliy Ninov

      Thanks for responding and being patient to wait until my post appeared again (“miraculously” as you say!).
      Note first that using “force” is not bad by itself. An example: A policeman apprehends a criminal. Only the initiated force is bad. So, if a landowner (private property) imposes something on a person residing on his land he does not initiate force. And the reason is that this land is his own and he is the one to deal with it as he wishes. The latter includes his right to determine the rules valid over it. Suppose now that many landowners with similar views agree that the same laws will be valid over their lands. Then we will have a monopolistic law imposed without the initiation of force. And there will be no state, but we will have a jurisdiction.

      • Brad R

        First, owning land does not confer an unlimited right to “impose something” on someone on your land. As an extreme example, you could claim the right to shoot on sight any black person who sets foot on your property. I think most libertarians would agree that you would be in the wrong, and that you would be initiating lethal force. (This gets into the question of proportionate response, which is an interesting and unsettled topic, but probably a digression here.)

        However, let’s take your example that “many landowners with similar views agree that the same laws will be valid over their lands.” Seven questions:

        1. Do those “laws” apply to neighboring lands?
        2. If a third party (not one of the landowners) visits one of the landowners, do those laws apply to him?
        3. If a landowner sells his land, do those laws apply to the purchaser?
        4. If a landowner dies, do those laws apply to his heir?
        5. Can a subset of landowners agree to modify the laws among themselves?
        6. Can a landowner withdraw from the agreement?
        7. What is done if a landowner violates one of these laws?

        I submit that imposing a monopolistic law over a geographically-defined jurisdiction is the very definition of a state. (More commonly a state is defined as an entity having a geographic monopoly over the use of force; but you have stipulated — wrongly, I believe — that your landowners’ use of force to impose their laws is “defensive force” in the libertarian sense.) If it looks like a state, and walks like a state, and quacks like a state, it’s most likely a state.

        • Youliy Ninov

          About the definition of state you have given: In order to have a state you need centralized control over the use of force. In the system I suggest this control will be decentralized, i.e. no central body to impose the laws will exist. All that will be necessary will be for the society to set the rules (laws). Once they do it then the laws will be imposed by the market itself. I realize that the latter sounds strange, so all I can suggest to you is to read my recently published article in “New Perspectives on Political Economy” (a journal with Austrian views). Optionally, we could have a VERY long conversation.

          “As an extreme example, you might claim the right to shoot on sight any
          black person who sets foot on your property. I think most libertarians
          would agree that you would be in the wrong, and that you would be
          initiating lethal force.”

          If they claim so then they find themselves in a controversy. In particular this means that the particular trespasser has the right to reside on your property. It also means that the land of the land owner is not really private. If it was, then he would have the right to set the rules over it.

          About your points 1 to 7. I will answer them but this will lead us nowhere.
          1. The laws do not apply to neighboring lands.
          2. The laws apply to visitors (as is the situation now).
          3. It is up to the particular society and the particular landowner to decide if the particular laws apply to the sold land.

          4. Same as the above in case of a death of a land-owner.
          5. A subset of owners can modify the laws. This would allow for adjustment to changes in opinions/convictions/beliefs.
          6. A landowner could withdraw from an agreement if the society allows it.
          7. If a landowner violates the laws in place then the laws in place are applied to him.

          I doubt that the above explanation (1 to 7) has made my suggestion clearer.

          • Brad R

            I stand by my last statement: if it looks like a state, and walks like a state, and quacks like a state, it’s most likely a state. You have not convinced me otherwise.

          • Youliy Ninov

            No problem with me. Still, you say, quote:

            “More commonly a state is defined as an entity having a geographic monopoly over the use of force”

            There is no monopoly over the use of force under the system I suggest. There is only a monopoly over the determination of laws. Consequently the above definition does not hold and the system I suggest is not a state.

          • Brad R

            You were the one who called it monopoly: “Then we will have a monopolistic law imposed without the initiation of force.” You may have some rhetorical artifice by which you claim that force used to impose these laws is not initiation of force, but I don’t buy it. You say there is “a monopoly over the determination of laws”; I say that sounds like a state to me. You may choose to call it a Benevolent Association or a Social Club, but it’s acting like a state.

          • Youliy Ninov

            Thanks for your comments Brad! I realize that new ideas sound strange to most people. My impression is that my article causes so high level of cognitive dissonance that people typically discard it (“These are not our ideas!””). A typical example is Walter Block. I sent my newly- published article to him and his comments were the following: “You quote Rand. Rand is wrong, therefore you are wrong. Here are my articles against Rand’s philosophy””. Note that I am not a Randian at all. However, it was enough for him to find an excuse not to read my article to the end.

            Allow me to try to explain again:
            Even nowadays, in the present situation, the societies set the laws and impose them separately. This is not a joint step. We create the laws in a parliament and then authorize a monopoly (the police) to impose them. But these are separate steps. Typically laws change but the way we imposed them (by the state) does not. Most authors (Rothbard for instance) join these steps somehow, they presume that if you set the laws monopolistically then you must impose them monopolistically. The latter however need not be so. You could set the laws in a monopolistic manner but impose them non-monopolistically. However, if you impose the laws in a distributed manner (by the market) then there is no way to control their imposition centrally (which is actually the definition of a state).

          • Brad R

            You claim it is not a state if you “set the laws in a monopolistic manner but impose them non-monopolistically.” Suppose the government of Canada were to continue to write all laws, but delegate enforcement to vigilantes. By your logic, that would not be a government. Indeed, laws in the U.S. are “imposed…in a distributed manner,” by a multitude of federal agencies, fifty states (with their own subdivisions), and a very large number of municipalities. Does that mean the U.S. is not a state?

            Regarding my seven questions:

            1. Good.
            2. If “the laws apply to visitors,” then you are saying that the laws are imposed on non-consenting individuals. This distinguishes “law” from “agreement.”
            3. That doesn’t answer the question. If it is “up to the society” (however “society” is defined), then presumably they will have their laws apply. If it is “up to the landowner,” presumably he do whatever fetches the best price, i.e., minimal restrictions. It can’t be both. Whose decision controls?
            4. If the landowner is dead, then you seem to be saying that “society” imposes their rules on an heir, regardless of the heir’s consent or non-consent.
            5. If a subset of owners can modify the laws, then it follows that I can agree with a single neighbor to nullify all of the “society’s” laws, on our property. But you’ve said I can’t do that by myself. Do I understand that correctly?
            6. Saying that a landowner can withdraw “if the society allows it” is basically saying the landowner can’t withdraw. An inmate can leave prison if the prison allows it; that doesn’t mean he’s not a prisoner.
            7. How, exactly, are “the laws in place applied”? Who applies the laws?

            By creating your arbitrary distinction between who “sets” the laws and who “imposes” them, you seem to be attempting to create a central authority with a monopoly on writing the laws, having subjects who may not opt out of the laws, and yet which is called something other than a “state” (or “government”). Sorry, I don’t buy it. Whether you call it a fraternity or a knitting circle, you’re proposing a government.

          • Youliy Ninov

            I have to admit that you are right. The example you gave is absolutely correct. In order not to have a state it is not enough that laws be imposed non-monopolistically. What is necessary in addition is that the laws be set not by a simple monopoly but by a free-market monopoly (there is such a notion). Please, bear with me until I explain.

            We start with a typical An-cap society. Some group of people, let say of christian faith, buys contiguous pieces of land and decides to form their own society. Once they have bought the land they decide that on their land only christians are allowed. So, they invite christians from everywhere to join them and inform the non-christians that they will have to leave. First question: Do they have the right to discriminate? The answer is yes. If you say no, then you claim that their land is not private in fact. What you would implicitly claim is that a land owner does not have the right to raise a wall around his land, that a restaurant owner does not have the right to throw out an aggressive customer or that I have the right to enter your home and stay there without your permission. So, a land owner has the right to determine who will live on his land. Do you agree? And if not, why?

            Now: what we will have will be homogeneous society, i.e. a society composed of people with the same or very similar views. In such a society there is no problem for monopolistic laws to exist. And the simple reason is that they will be supported (or at least tolerated) by everybody. Note however that a land owner can not impose any law he wishes because he is dependent on the people living on his land. After all somebody must produce something, so that this land has value at all. In effect the laws will be created jointly, there will be market feedback. A land owner will need a big enough group which supports his views. Note that such laws will be imposed without the initiation of force. If you think otherwise, let me know who and how initiates force.

            In such a jurisdiction (!) you can impose laws such as : ban drugs (after all nobody wishes them there), ban guns (again nobody wishes them), etc. If you still wish to take drugs, just exit the society and you can buy whatever your heart desires. Nobody stops you from taking drugs, you just have to make sure that this does not happen on this particular private land.

            In such a way, a society can impose IP laws without a state and without the initiation of force in general. But unless you find some flaw with the above society you have to admit that the IP laws are OK in general and it is just the way they are imposed can be wrong (if they are imposed by a state for instance).

            I will comment on points 1 to 7 after we clear the above.

          • Brad R

            Ah, I see the point of confusion. When you speak of a group of landowners, I think of a group of individuals each owning his own parcel of land. But now I see that you are talking about — for lack of a better term — “corporate” ownership of a single large area of land. A group of people agree to pool their resources and fund a management entity that will own the land and set rules on its use. (Whether the contributions are of money or of land does not affect this analysis.) Those rules presumably cover all the foreseeable circumstances, such as policies about guests and withdrawal.

            I would agree that an anarcho-capitalist society has room for such a joint-stock company. (I will leave aside the question of corporate personhood, as not being a critical factor here.) However, I would disagree that the participants should be called “landowners,” since they in fact own no land and are not free to dispose of “their” parcel. They would be better described as shareholders. They would be free to sell or bequeath their shares in the enterprise, but those shares are still limited by the original company “by-laws” (which no doubt include the rules by which shareholders can alter the by-laws).

            Similarly, where you use the word “law” I think I would use “by-law,” and for “jurisdiction” I would use the word “company” or “corporation,” or even “society” in the business sense.

            While such an entity may be able to ban drugs or guns, I think it would be very difficult for them to enforce IP laws. Suppose I duplicate a music CD at my company home, and then take it elsewhere to give to a friend? Would you mount continuous inspection of what people are doing with their computers, or simply search all parcels entering and leaving the company area?

            And no, the fact that you might be able to persuade a group of people to abide by IP laws within the group, does not mean that I “have to admit” that IP laws are OK in general. People can agree voluntarily to all kinds of things, that would be objectionable if imposed without their consent. Many people tithe 10% of their salary to charity; that doesn’t mean that taxation is ok. Regardless of who imposes it, taxation is theft.

          • Youliy Ninov

            I am very glad that I managed to get my idea across to some extent. Still, several comments are in order. This will not be a joint-stock company but a whole society. There will be people on this land who will just reside there (non-owners) because of the laws there. As an example: a Frenchman would prefer a society speaking French, within the French cultural traditions and customs. And if he decides at certain point that the laws there are not OK (there are taxes for instance) he will just “vote with his feet” and in short order many people will either leave (depopulate) the society in question or they will just insist on changing the laws. As I said the landowners are not independent law-producers and they will adjust the laws to reflect the needs of the people. If at a certain point you decide that you need a different society you just change your place of living. There could be an infinite variety of societies constantly in a process of change so as to serve the changing human preferences.

            Nobody questions the fact that it will be very hard to impose the IP laws. But this is not the question. Kinsella, the present author, etc. claim that IP laws are IMMORAL. The latter has nothing to do with how hard they are to impose. You say, quote :”People can agree voluntarily to all kinds of things, that would be objectionable if imposed without their consent.” This summarizes my opinion. But if they agree on IP laws then who are we to tell them that they have no right to impose them? We may think that they are stupid to do it, but people must be free to determine their own lives and the latter may include IP laws.
            Let me re-iterate my stance: IP laws are not bad by themselves, they are bad when they are imposed by initiated force (for instance by a state).

            Your last sentence however contradicts the above-quoted. I mean “Regardless of who imposes it, taxation is theft.”. The latter is not correct. If a society agrees voluntarily to pay some tax, then what is wrong with that? if such a society can exist then you you in fact say : “The voluntary taxation is theft”, or in other words that people have no moral right to gather money for poor/disabled/etc. people in need. Note that nobody would force you to pay a tax. But if you choose to stay in such a society you have to.

          • Brad R

            You say “If at a certain point you decide that you need a different society you just change your place of living.” That sounds to me like you are proposing a society of renters. You have avoided specifying who owns the land, and this information is crucial, since the essence of ownership is rightful control. You have not changed my conclusion that what you are proposing is some kind of corporate entity — whether a joint-stock company or some other form — which exercises ownership and establishes by-laws.

            You brush aside the difficulty of enforcing IP laws as irrelevant. I submit to you that a law which can only be enforced through immoral means is an immoral law.

            However, let me take Kinsella’s point more directly. I, too, maintain that IP laws are immoral, irrespective of how hard they are to impose. Ultimately they attempt to deny the essential characteristics of property and human thought (ideas are neither scarce nor alienable, as the present author explained). This does not negate my point that someone may rightfully choose to do something that it would be wrongful to compel him to do. People certainly have the right to voluntarily contribute to the poor/disabled/etc., but it is wrong to forcibly take money from people for that purpose.

            You speak glibly of “a society” as if it were an individual. “A society” does not agree to pay a tax or to accept IP laws. Individuals make such agreements, and it is immoral for someone to claim to make an agreement on behalf of another (unless explicitly authorized to do so by that other).

            And, you keep skating past the question of enforcement, which leads you to contradictions like this: “Note that nobody would force you to pay a tax. But if you choose to stay in such a society you have to.” Have to, how? I ask again: what happens in your society to those who refuse to pay? Do you forcibly evict them from their home? Do you confiscate their property? How do you propose to compel unwilling people without the use of force?

            It seems to me that at some point, you must initiate force in order to “impose” your society’s “laws.” Nothing you have explained convinces me otherwise. A state by any other name is still a state.

          • Youliy Ninov

            First about “How do you propose to compel unwilling people without the use of force?”

            You find yourself in front of a private amusement park. If you decide to enter you are required to pay some amount of money. However you do not pay but still go inside. Now the question is: Does the owner have the right to kick you out? I.e. does he have the right to apply force to you? And is this force justified or not? Every liberty oriented person would admit that the owner is justified in applying force to you and that this force will be defensive/retaliatory, i.e. that the owner will not initiate force when kicking you out. You would be the one to have initiated force when you entered his park without paying. This right of the owner comes from the fact that this is his land, i.e. this is private property and he is entitled to decide the rules of access. He may simply deny you access for no reason (or for a stupid reason) and that is absolutely legitimate.

            Now: I am talking about a society in which ALL land is private. You asked for an example, so here is one. A society consist of 100 000 people. 100 of them own the land on which the society is situated (for instance 100 000 ha). So, 90 000 of the people are non-owners who however agree with and approve of the rules which are valid there (as I have already said: a homogeneous society). Supposedly the society is a christian one, i.e. it is composed of christians. And in addition the society (including the land owners) require that only christians reside on this land. You are not a christian but you still go there. Again the question: Does the society have the right to kick you out? Note that ALL land is private. And if not why? How does the private amusement park differ from this society?

            In short: Authors such as Rothbard, etc. somehow implicitly presume that all land is semi-private and one has the right to reside there (as is the case nowadays with the public places). However if the land you reside on is truly private you have to obey the laws/rules in place. And if you don’t then you can be kicked-out/punished without any force being initiated on you. So, if you decide to sell/use drugs in a society which does not allow drugs (has anti-drug laws) you can be punished (fined/jailed/expelled/even killed) and this would be in full compliance with NAP.

          • Youliy Ninov

            Now about: “Ultimately they attempt to deny the essential characteristics of property and human thought (ideas are neither scarce nor alienable, as the present author explained).”

            You have an idea about a new movie with some famous actors. So, you invest a lot of money, spend a lot of time and effort and in the end you have it ready. Now, however, when it is in a digital format it can be easily copied and distributed by whoever can lay his hands on it. A basic principle of the free market is that if a person has put effort, money and time and produced something of economic value then he must have the right to make use of it, to be compensated for it. But unauthorized copying prevents this. So, no essential characteristic of property is denied here.

            Do you insist that this movie does not belong to the producer? Because if it is his then he must have the right to decide how do deal with it. But if it not his, then everybody has the right to take it, even with force. So, you come and just request the movie and if he denies this request you sue him or simply beat him or call the police. No libertarian supports the latter, so there is an implicit admission that the movie belongs the the producer. However if somebody somehow manages to copy the product and distribute it without the producer’s permission this is somehow presumed to be justified. How so? Because it is easy? The easiness of producing/copying something does not lead to a moral right. It is very easy for me to steal a candy from a baby, I could just go there and take it. But is this right?

          • Brad R

            This will be my last post on the topic; you can have the privilege of last reply.

            You have confirmed my understanding that you are proposing a society of renters. In your example, 100 owners and 99,900 renters. What you are suggesting is the equivalent of writing a lot of by-laws into the renters’ lease agreement, e.g., all renters must be Christian, all renters must refrain from using drugs, all renters must refrain from copying IP, etc. (That’s going to be a mighty long lease.) Yes, you as landlord have the right to write such an agreement; yes, you as landlord have the right to expel someone for violating the lease; yes, you as landlord may call upon (public or private) police force to expel a violator who refuses to leave. Your amusement park example is on point.

            I do not at this time address the rights of your co-owners, which is an entirely different question. I presume that all the owners have entered into a contractual agreement. I predict that you will have enormous practical difficulties enforcing both this agreement and your lease agreement for renters, but you seem unconcerned by this.

            Incidentally, I’ve never seen anything that suggests Rothbard etc. “implicitly presume that all land is semi-private.” Quite the opposite; the presumption is that all land is privately owned.

            Regarding the hypothetical new movie: you seem to be subscribing to the labor theory of value. “You invest a lot of money, spend a lot of time and effort and in the end you have it ready.” Rothbardians (and Austrian economists in general) long ago rejected the idea that labor alone determines value; value is subjective. Your movie is worth whatever you can convince someone to pay you. You do have the right to make use of it, but you do not have the right to be compensated for it. (E.g., suppose it’s an awful movie that no one wants to watch.)

            When you speak of the movie “belonging” to the producer you are assuming your conclusion; specifically, you are assuming that the characteristics of property (being exclusive and alienable) apply. That is false to fact. Your digital movie is significantly unlike real property.

            That being said, it is absurd to suggest that someone has the right to compel you to publish your movie, and no libertarian IP opponent has suggested such. Here you are fighting a straw man, I’m afraid. As Benjamin Tucker stated, “You want your invention to yourself? Then keep it to yourself.” The implication being that you have the right to exclusive use of an unpublished idea.

            But once you have published it, you don’t have the right to compel others’ thoughts. If you sell it in tangible form (as real property, e.g. a book), you don’t have the right to tell others what they can do with their property. It has nothing to do with the ease of copying; it has everything to do with self-ownership — we each own what is in our minds, however it got there — and ownership of tangible property.

            And with that, we have come full circle to the original article. On this we will clearly not agree, and, having come to an understanding of your proposals, I will pursue this no further here. I bid you good day.

          • Youliy Ninov

            Your view about the system I suggest is good enough for the purpose of the discussion. Note what you admit: That such a system can exist and that it will correspond to the libertarian views. What follows is that in such a system IP laws are entirely acceptable (ethically right).

            However you, the present author and Kinsella together claim that IP laws are ethically wrong in principle, i.e. always. This leads to the following problem:
            Above you admit that IP laws can be imposed in an ethically right manner in a particular situation while still claiming that they are always wrong. You find yourself in a contradiction! You support two statement which cannot be true at the same time.
            Let me use the example of Nassim Taleb: You say that all swans are white. But I show you a black one. And if you accept the rules of logic as binding then it follows that the original (all encompassing) statement is wrong.

            From here on you have several choices:
            1. Admit that I am right. In particular that the IP laws and not bad in general but only when imposed by initiation of force.
            2. Think out some excuse why the system I suggest cannot exist. Note that this system is the most likely one under anarchism for the simple reason that people tend to discriminate and group themselves. Polycentric societies are very unlikely.
            3. Pretend that such a problem does not exist. This is what people almost always do when confronted with facts/arguments which contradict their views.

            About my supposed acceptance of the labor theory of value: Let me quote myself from above “….if a person has put effort, money and time and produced something of economic value”. The last two words are important.

            It is worth noting that the system we discussed is a vary small part of my article. It just sets the stage so to say. Let me again raise the level of cognitive resonance by saying that in my article I claim that Anarcho-capitalism is not a free-market system, contrary of what its supporters claim. And the reason is that it contradicts the ethical views espoused by these same people. That is why there are so many organizational problems with police and courts under anarcho-capitalism.

            I thank you for the time you spent to understand the idea I was trying so hard to get across. Few people are willing to get deeper into some subject and I am very glad that you are one of them. It was a pleasure having a discussion with you!

  • Brad R

    Ah, I see your vanished posts have magically reappeared! Fortunately I saved the reply that I had written; it is now posted below. (Or at least it’s “below” as I’m viewing posts.)

  • Hey, Brad, thanks for the link. Very interesting article.