Intellectual Property: Why It Fails on the Most Basic Libertarian Ground

IP’s validity has been a hot topic among libertarians for decades now, and the debate is still far from coming to a finish. Contrary to what one might suspect, the answer to whether IP is a valid form of property is simple. It comes down to what links a specific actor to a specific scarce resource.

The Homesteading Principle and the Failure of IP

The Homesteading Principle is the most basic principle of libertarianism. It is more fundamental than body ownership, i.e. self-ownership, because a person owns their body as a result of homesteading. When an individual homesteads,i.e. emborders, a previously unowned scare resource they create an objective, intersubjectively ascertainable link between them and the scarce resource.

If IP is a valid form of property, then acquiring intellectual property rights must follow homesteading as defined by the Homesteading Principle. An issue arises, acquiring IP does not follow the Homesteading Principle.

Let us take patents as an example to show that IP right acquisition does not follow the Homesteading Principle. A person gains rights in a patent by either filing it — going by legal standards for ethical standards — or simply by creating it — more of a natural law approach.

The only time a person “creating” an invention would gain rights in it would be if they took a previously unowned scarce resource and transformed it into the invention; however, the right in the new invention would not restrict others from using their scarce resources to recreate the invention. Patents suppose a property right in every one else’s owned goods to the extent that they cannot recreate the patent without explicit consent, but this property right in other’s goods has no objective link to the creator of the patent. Specifically, the creator of the patent never embordered, i.e. first appropriated, everybody else’s property; in fact, he could not have since he was not the first owner of their resources.

Restricting another person from recreating inventions, words, logos, information patterns, etc. with their scarce resources simply is aggression. This stands true for all IP. There is no objective link between the creator to all owned scarce resources when they write, invent, make a logo, etc., and thus acquiring IP rights is not homesteading.