Those of us who come from the Libertarian, Anarchist, Capitalist, Voluntaryist or similar schools of thought are used to dealing with coercive elements who lay claim to our property, particularly in the form of confiscating our “fair share” of taxes. The coercers begin with some premise that gives them, they say, the moral right to take what is ours – because it isn’t really ours.

Nothing new there. Our entire system of government and politics worldwide is based on the premise that you don’t own what is yours – including your body – and that it’s right and proper to regulate, tax, and confiscate. And if you respectfully disagree you can think about your argument while sitting in prison.

What has become increasingly shocking to me is the number of people inside the pro-individual / anti-State marketplace who have spontaneously declared the same coercive dynamic should be applied to writing, music, software, design, movies, industrial processes and a vast sector of productive human labor widely known under the term Intellectual Property.

I’d like to say at the outset that I am no defender of any State nor of any State function, including its monopoly enforcement against infringement of copyrights and trademarks. I’m also not a fan of any States monopoly enforcement against rape and murder, but I’ll get to that in a moment.


I recently had a brief exchange with one of the principle proponents of this non-ownership of Intellectual Property idea, Stephan Kinsella over on the Voluntaryist blog.

It seems that his argument, as all arguments do, hinges on a premise from the beginning. Namely, in order for something to even be property it must have the characteristic of scarcity. Once you accept that premise then it can be demonstrated that, for example, a digital copy of Led Zeppelin’s Stairway to Heaven is not a scarce thing and therefore – presto – is not property and therefore said band has no rights to the song it wrote, performed and produced at its own financial expense.

Importantly, Led Zeppelin saying “I don’t agree with your premise” is no defense and given zero weight and credibility by the person taking their music without paying.

I asked Mr. Kinsella about this very example and here is his answer: “No one owns it, it has no owner, since it is not an ownable thing. Property rights simply do not and cannot apply to it. This is not a normative proposition: I am not saying there *should not* be property rights in songs or ideas. I am saying there *cannot be*–and in fact there are not, now. What we have now is the law giving Led Zeppelin property rights in other people’s scarce resources (e.g. their money) *based on the excuse* that Led Zeppelin “owns” “the song”. But this is just the excuse given for the robbery that copyright law perpetrates. The song is never owned.”

This argument is a curious mix of philosophical and US copyright law. According to Mr. Kinsella sometimes I was wrong because of the universal correctness of his scarcity premise, sometimes I was wrong because of my ignorance of US copyright law. Either way, I “didn’t know what I was talking about” and/or was “full of sh*t” and/or should “shut up.

Again, no other opinions on the nature and identity of property were valid – only his scarcity premise is valid and that gives him all the license he needs to use the fruits of other people’s labor and financial investment as he sees fit and without paying anything to anyone. Note also that ‘my money is scarce – your labor isn’t.’ Hmmmm.

I know from personal experience that Mr. Kinsella has many young fans who embrace his arguments and feel no shame or guilt in torrenting terabytes of music, movies, software and other IP without compensating the creators under terms to which the creators agree.

I’m never sure where they think future innovation would come from should everyone adopt their convenient beliefs and premises regarding non-payment.

The Handbrake on Bad Ideas

I think it’s possible to create a society of near-zero coercion. I wrote a book about it. The fact is, in such a system, which I call a Contractual Republic, there has to be a place for ideas and philosophies we don’t like and don’t agree with.

There has to be a place for millions of people who want to have their hand cut off if they steal something. Or their head cut off if they sleep with someone they agreed they wouldn’t sleep with. There has to be a place for people who just want to be left alone to be the best Amish person they can be. Or people who want to be syndicalist communists where they have zero private property of any kind. These people matter and they have a right to live their lives as they choose.

The reality of creating global human Freedom (capital F deliberate) is that 7-billion individual preferences need to be simultaneously accommodated. Including Mr. Kinsella and the converts to Intellectual Property communism/non-existence.

But the handbrake on all of these ideologies – including the one I propose – is that people also need to be free to NOT participate in any community they choose. I don’t agree to have my head cut off for your definition of blasphemy. I don’t agree to live by your Catholic definition of morality. And I don’t agree to surrender my work without compensation because of your definition of Intellectual Property.

Mutual, voluntary agreement is the handbrake on ideas we think are bad or that we simply do not agree with for our own reasons. With agreement we trade, without agreement we go our separate ways.

Blaming the State

I think States are monstrosities of coercion and slavery. They are, by the definition I use, anti-Freedom. All of them.

But there is a logical fallacy is stating that because a State protects Intellectual Property in some way, it is therefore wrong and immoral to protect it. The States I’ve lived under also make it illegal to murder or rape an individual – and I certainly support the validity underlying that principle.

My argument is this. Suppose I define rape my own way. Maybe I say there is no such thing as rape. Maybe I say the act of rape does not affect the sacrosanct concept of scarcity. Maybe I say might makes right. Maybe I say an immoral, coercive State grants rape protection without proper intellectual foundations. Whatever. Armed with my new, superior definition, is it then perfectly moral for me to have sex with any person I want, irrespective of his or her consent to my definitions?

I say it is not moral because it’s coercive.

I say there must be mutual, voluntary agreement to the definitions, terms and conditions of the transaction. Once there is mutual agreement, it’s nobody else’s business.

But, if there is coercion we all have an interest in eliminating that coercion lest we be the next victim. This is the value and power of a Contractual Republic and of the marketplace in general. Coercers make restitution or they don’t get to participate with the non-coercers in the market – any of them.

That is the challenge for the folks who want to live in a society where they say there is no way to own Intellectual Property nor to be compensated for producing it. They have a right to form such a society, but what would be the incentive to trade with them if you create valuable Intellectual Property? And if they decide to just take it without mutual, voluntary agreement, the remainder of the productive world would isolate them until restitution was made. Because not everyone agrees with their definitions – especially productive people.

Where do new medicines and new inventions come from for this insular non-IP society when the innovators are not compensated? Where does new software come from? New industrial processes? New methods of transportation, communication, and power generation that contain important new Intellectual Property?

I think these societies would be doomed to gradual decline.

I think the same would apply to societies that redefine rape in ways that don’t respect and protect the people who disagree with the new definition, and simply imposes one unilaterally on unwilling sex partners. I think the same would apply to any society that imposes unilateral definitions regarding anything.

There is a vast difference between these two positions;

A) “Here is a digital file of my new song, I will sell it to you for 99 cents and you can use it under these specific terms. Take it or leave it. Entirely up to you.”

B) “I’m taking the digital file of your song – not respecting your terms – and not paying you anything. And you can’t stop me.”

Some people want to convince me that B is perfectly moral and builds a better world. They won’t convince me of this.

They aren’t alone.

Good people also want to convince me that Jesus of Nazareth is the source of all morality and his Father was the Creator of the universe. They have their evidence and their arguments. I remain unconvinced and do not wish to accept their terms and conditions on my life and property.

Same goes for those who earnestly and deeply believe a particular a prophet born in Mecca speaks for how I should live. Or believe that Ronald Regan was an ideal ruler for mankind. Or that Karl Marx had the definitive arguments and evidence for the correct disposition of property. Or that Stephan Kinsella does.

However, I agree that everyone who does believe and embrace these views and new definitions has a right to organize themselves into a society where they ALL AGREE to those definitions, terms and conditions and they trade amongst themselves.

I wish them well in that. Honestly. Maybe they’ll find a way to prosper and add something to the human experience. As long as they do it non-coercively, by not unilaterally imposing their beliefs on others who do not agree, they have every moral right to proceed. And they can surely live well enough without any Led Zeppelin music.

In the meantime, I’ll be over here in the marketplace where people only trade under mutual, voluntary, agreed upon definitions, terms and conditions and don’t impose conditions unilaterally. I’m betting that’s the better path to an advanced, peaceful, prosperous social system of global human Freedom that can eventually take our species into the far cosmos.