Kinsella, Stephan. The Problem with Intellectual Property. Papinian Press Occasional Paper, No. 2. Houston, Texas: Papinian Press, May 15, 2025 (v.1.1). 30pp. ISBN Ebook 979-8-9890306-8-2. Available online at C4SIF. Published under Creative Commons Zero (CC0).

Stephan Kinsella’s The Problem with Intellectual Property (2025) is a concise but thorough demolition of the case for patents and copyrights. It draws upon the author’s decades of scholarship and advocacy to set out with clarity why intellectual property (IP) is not property at all, but a state-created distortion of genuine ownership. In doing so, it strengthens a long tradition of Austrian and libertarian criticism of monopoly privileges.

The introduction immediately sets the stage: “It is widely recognized that the institutional protection of private property rights was a necessary (though probably not sufficient) condition for the radical prosperity experienced in the West since the advent of the industrial revolution” (p. 1). Yet alongside property rights in scarce resources, the modern world developed “so-called ‘intellectual property’ (IP) rights,” such as patents and copyright. Kinsella stresses that defenders of IP “make strained arguments that IP is just like, or at least structurally similar to, property rights in physical resources. Yet it is still treated differently than other property rights” (pp. 1–2). Unlike land or chattels, IP terms expire—“about 17 years for [patents] and usually over 100 years for [copyrights]” (p. 3).

His conclusion is uncompromising: “I argue that the arguments for IP do not hold up, and that all forms of IP should be abolished entirely, not merely reformed; that IP rights are unjust and incompatible with legitimate property rights” (p. 3).

The opening substantive chapter provides a rigorous exposition of what property is, and why it matters. Drawing on Mises and Rothbard, Kinsella shows that human action is always about employing scarce means to satisfy ends. “All action involves direct control of one’s body and possession and employment of other resources to bring about a more desired end” (p. 4). Because conflicts over scarce resources are possible, societies develop property rights as a means of avoiding violence and enabling cooperation.

The “core property acquisition rules” are laid out clearly: “self-ownership, original appropriation, contractual transfer, and transfers for rectification” (p. 5). These principles, found in Roman law and the common law, embody justice by ensuring that ownership rests on either first use or voluntary exchange. This framework is the measuring rod against which IP must be tested.

The bulk of the paper, from pp. 6–21, takes apart the main arguments advanced in favour of IP.

1. Lockean “Creationism.” Kinsella labels the idea that creation generates ownership “Libertarian Creationism” (p. 8). He is blunt: “Creation is neither sufficient nor necessary for ownership and property rights. The entire mistaken notion of creation as a source of ownership needs to be discarded” (p. 10). He illustrates this with telling analogies: mothers do not own their children, and employees do not own the factory outputs they help produce (p. 10).The effect of IP is to impose “a negative servitude (or easement) over the resources of the infringer” (p. 12), preventing people from using their legitimately owned factories, presses, or computers. Such non-consensual servitudes, he argues, are analogous to rape: consent makes all the difference between legitimacy and aggression (p. 12).
2. Knowledge and Scarcity. The heart of his argument is that information is not scarce: “Two people who each own the ingredients (scarce goods) can simultaneously make a cake using the same recipe” (p. 13). To impose scarcity on ideas is both unnecessary and destructive: “It is good that ideas are infinitely reproducible. There is no need to impose artificial scarcity on ideas to make them more like physical resources” (p. 13).
3. Utilitarianism. Kinsella exposes utilitarian justifications as ethically perverse (“Why not take half of Henry Ford’s fortune… Yet theft is still theft” p. 14), methodologically incoherent (“illegitimate interpersonal utility comparisons” p. 14), and empirically bankrupt. He cites Fritz Machlup’s famous 1958 Senate report: “No economist, on the basis of present knowledge, could possibly state with certainty that the patent system… confers a net benefit or a net loss upon society” (p. 17). Later research has only confirmed the scepticism: “the patent system fails on its own terms” (p. 18). Boldrin and Levine’s conclusion is cited: “The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity” (p. 18).
4. Contract and Fraud. He dispatches the claim that IP can be created by private contract. Contracts are in personam, binding only the parties, whereas property is in rem, good against the world. No contract between author and publisher can bind a stranger who happens to see a copy (pp. 18–19). Fraud, plagiarism, and dishonesty are separate matters, already covered by existing law and ethics.
5. Dependence on the State. IP requires legislative codes and central enforcement. It “could no more arise in the decentralized, case-based legal system of a free society than could the Americans with Disabilities Act or Medicare” (p. 23).

Perhaps the most engaging section imagines a world without IP. Kinsella echoes John Hasnas: to demand blueprints of a free market in advance is “to miss the point” (p. 24). The honest answer to “what would replace IP?” is Leonard Read’s “I don’t know” (p. 24). Markets discover solutions; states suppress them.

Nevertheless, Kinsella shows how entrepreneurs already adapt: Louis C.K. earning $1M in two weeks with DRM-free sales, or Double Fine raising over $1M on Kickstarter (p. 26). Cinemas exclude non-payers by walls and ushers; musicians monetise concerts. Creativity is thriving despite piracy, and would thrive even more in a freed market.

The conclusion is clear: “So-called IP rights such as patent and copyright are monopoly privileges granted by the state that dilute and undermine property rights… Thus, IP rights are incompatible with genuine private property rights, liberty, and justice” (p. 27). Reform is not enough: abolition is the only just and practical path.

Kinsella’s paper is both scholarly and polemical. It synthesises Austrian economics, libertarian legal theory, and historical evidence into a single clear indictment of intellectual property. His language is accessible without sacrificing rigour. The footnotes and references—ranging from Locke and Hegel to Machlup, Rothbard, and Boldrin & Levine—make this not just a pamphlet, but also a guide to the whole anti-IP literature.

If there is a criticism, it is that the work’s density might daunt beginners. But this is a minor quibble. As a short occasional paper, it is ideal for students, scholars, and activists seeking a principled and comprehensive argument against IP.

In the libertarian tradition, The Problem with Intellectual Property is destined to be as important as Kinsella’s earlier Against Intellectual Property (2008). For anyone serious about free markets, this is essential reading. It demonstrates beyond doubt that patents and copyright are not the defence of property but its negation.

Related posts:

Stephan Kinsella on the Common Law: Lessons from Bodrum 2025 David Dürr on Swiss Anarchism – Property and Freedom Society Bodrum 2025 Saifedean Ammous on Property Rights and the Palestinian–Israeli Conflict – PFS Bodrum 2025 The UK Climate and Nature Bill Machines Without Meaning: A Libertarian View of Duncan Whitmore’s AI Trilogy Minds, Means and Machines – The Ominous Conclusion?

Powered by YARPP.