N. Stephan Kinsella – Against Intellectual Property
“wealth” or “utility.” With respect to copyright and patent, the idea
is that more artistic and inventive “innovation” corresponds with, or
leads to, more wealth. Public goods and free-rider effects reduce the
amount of such wealth below its optimal level, i.e., lower than the
level we would achieve if there were adequate IP laws on the books.
Thus, wealth is optimized, or at least increased, by granting copy-
right and patent monopolies that encourage authors and inventors
to innovate and create.
36
On the other hand, there is a long tradition of opposition to pat-
ent and copyright. Modern opponents include Rothbard, McElroy,
Palmer, Lepage, Bouckaert, and myself.
37
Benjamin Tucker also
36
See Palmer, “Are Patents and Copyrights Morally Justified?” pp. 820–21;
Julio H. Cole, “Patents and Copyrights: Do the Be nefits Exceed the Costs?”
http://www.economia.ufm.edu.gt/Catedraticos/jhcole/Cole%20_MPS_.pdf
37
See Murray N. Rothbard, Man, Economy, and State (Los Angeles: Nash
Publishing, 1962), pp. 652–60; Murray N. Rothbard, The Ethics of Liberty,
pp. 123–24; Wendy M cElroy, “Contra Copyright,” The Voluntaryist (June
1985); McElroy, “Intellectual Property: Copyright and Patent”; Tom G.
Palmer, “Intellectual Property: A Non-Posnerian Law and Economics Ap-
proach,” Hamline Law Review 12 (1989), p. 261; Palmer, “Are Patents
and Copyrights Morally Justified?”; on Lepage, see Mackaay, “Ec onomic
Incentives,” p. 869; Boudewijn Bouckaert, “What is Property?” in “Sy m-
posium: Intellectual Property,” Harvard Journal of Law & Public Policy 13,
no. 3, p. 775; N. Stephan Kinsella, “Is Intellectual Property Legitimate?”
Pennsylvania Bar Association Intellectual Property Law Newsletter 1, no. 2
(Winter 1998), p. 3; Kinsella, “Letter on Intellectual Property Rights,” and
“In Defense of Napster and Against the Second Homesteading Rule.”
F.A. Hayek also appears to be opposed to patents. See The Collected
Works of F.A. Hayek, vol. 1, The Fatal Conceit: The Errors of Socialism,
ed. W.W. Bartley (Chicago: University of Chicago Press, 1989), p. 6; and
Meiners and Staaf, “Patents, Copyrights, and Trademarks,” p. 911. Cole
challenges the utilitarian justification for patents and copyright in “Patents
and Copyrights: Do the Benefits Exceed the Costs?” See also Fritz Mach-
lup, U.S. Senate Subcommittee On Patents, Trademarks & Copyrights, An
Economic Review of the Patent System, 85th Cong., 2nd Ses sion, 1958,
Study No. 15; Fritz Machlup and Edith Penrose, “The Patent Co ntroversy
in the Nineteenth Century,” Journal of Economic History 10 (1950), p. 1;
Roderick T. Long, “The Libertarian Case Against Intellectual Property
Rights,” Formulations 3, no. 1 (Autumn 1995); Stephen Breyer, “The Un-
easy Case for Copyright: A Study of Copyright in Books, Photocopies, and
Computer Programs,” Harvard Law Review 84 (1970), p. 281; Wendy J.
Gordon, “An Inquiry into the M erits of Copyright: The Challenges of Con-
sistency, Consent, and Encouragement Theory,” Stanford Law Review 41
11