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A Libertarian Critique of Intellectual Property
What is the status of intellectual property? Are patents and copyrights legitimate in a free society?
Butler Shaffer is a distinguished libertarian legal theorist who has for many years taught at Southwestern Law School in Los Angeles. In this monograph, he addresses an important question that has aroused much interest among libertarians: What is the status of intellectual property? Are patents and copyrights legitimate?
Shaffer responds with an appeal to fundamental libertarian principles. Only arrangements that people freely negotiate with one another are acceptable: laws imposed by a coercive state are not. Judged by this standard, intellectual property fails. People may make contracts that limit the sale or transmission of ideas or books, but these bind only those who make them. Intellectual property laws, by contrast, apply to everyone, whether people accept them or not. These laws could not have arisen through voluntary agreements.
Defenders of intellectual property maintain that inventors and writers need protection for their work. Without patents and copyrights, inventions and creative work would be impeded. Shaffer responds that most of the great creators and inventors of the past worked without patent s and copyrights. Leonardo da Vinci and Shakespeare, for example, did rather well without this sort of state privilege.
A Libertarian Critique of Intellectual Property is a major contribution to libertarian legal theory and an indispensable guide to a vital topic.
1 pages, Audiobook
First published January 6, 2014
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Displaying 1 - 7 of 7 reviews
March 25, 2016
Schaffer's argument is not as radical as it might sound. He is not an anarchist. His criticism of intellectual property laws is that they provide incorporated bodies ('artificial' persons recognized by law) with the power to limit, control, and profit from ideas that would better benefit society as part of the creative, communicative commons. He does not suggest that property should be abolished, but that ownership of property should be limited to 'natural' persons, for information that they choose not to send forth into the community. He does raise the prospect, though, that in reality no ideas are built truly independently of the knowledge of others, thus implying that intellectual property laws should be rendered null and void.
See select quotations at:
http://generationpositivecanada.blogs...
See select quotations at:
http://generationpositivecanada.blogs...
January 3, 2025
much of this piece would be unconvincing to a non-Libertarian, still liked it
August 27, 2021
"Objectively" this was 5/5 stars. For me personally, it was 3/5 stars. So I averaged that by giving it 4/5 stars. Probably the best feature of this one was Shaffer's emphasis on how IP law actually discourages the communal sharing of ideas between scientists, innovators, and creators, thus severely impairing the flow of ideas throughout society
However, because the (correct) view that intellectual property law should be abolished on both moral and pragmatic/economic grounds is so heterodox, there aren't nearly enough works in defense of that view. Even most people who consider themselves capitalists or libertarians falsely believe that intellectual property is a real, defensible form of private property, despite IP being a grant of monopoly privileges by the state and thus a violation of private property.
(This, for example, is one of the few ways I deviate from Ayn Rand's otherwise brilliant defense of capitalism: she accepts the myth that intellectual property is a real form of property, when it actually assumes other people's minds are your property.)
Prior to reading this, I had already read Steven Kinsella's Against Intellectual Property and Against Intellectual Monopoly by Michele Bodorin and Steven Levine -- the most well-known books defending this viewpoint. (Kinsella focuses on the moral and legal arguments against it, whereas Bodorin and Levine do a lot more heavy lifting on the empirical side of showing how IP is actually a barrier to creativity and invention, not a contributor to it. Butler Shaffer focuses on a balance of both). So by the time I got around to reading Shaffer's work, it was "objectively" excellent but didn't so much add to my knowledge of the subject as merely reinforce it (itself of great value, to be sure). That's the reasoning for my 4/5 rating.
Libertarians of the anti-IP variety (myself included) need to publish far more works in book form on this. For example, modern IP law is actually a holdover from the ancient and medieval guild system which British intellectuals in the eighteenth and nineteenth centuries largely but not entirely succeeded in repealing -- that's an extremely interesting historical fact that casts a lot of light on the very assumptions underlying IP, and yet even the very tiny minority of us who oppose IP don't seem to be very much aware of that point. I will probably end up doing some such book(s) of that myself in the coming years, especially since I plan to be publishing a lot of both written work and artistic work. I plan to forfeit copyright protection to them while showing that I can still profit by doing so, so I might as well.
However, because the (correct) view that intellectual property law should be abolished on both moral and pragmatic/economic grounds is so heterodox, there aren't nearly enough works in defense of that view. Even most people who consider themselves capitalists or libertarians falsely believe that intellectual property is a real, defensible form of private property, despite IP being a grant of monopoly privileges by the state and thus a violation of private property.
(This, for example, is one of the few ways I deviate from Ayn Rand's otherwise brilliant defense of capitalism: she accepts the myth that intellectual property is a real form of property, when it actually assumes other people's minds are your property.)
Prior to reading this, I had already read Steven Kinsella's Against Intellectual Property and Against Intellectual Monopoly by Michele Bodorin and Steven Levine -- the most well-known books defending this viewpoint. (Kinsella focuses on the moral and legal arguments against it, whereas Bodorin and Levine do a lot more heavy lifting on the empirical side of showing how IP is actually a barrier to creativity and invention, not a contributor to it. Butler Shaffer focuses on a balance of both). So by the time I got around to reading Shaffer's work, it was "objectively" excellent but didn't so much add to my knowledge of the subject as merely reinforce it (itself of great value, to be sure). That's the reasoning for my 4/5 rating.
Libertarians of the anti-IP variety (myself included) need to publish far more works in book form on this. For example, modern IP law is actually a holdover from the ancient and medieval guild system which British intellectuals in the eighteenth and nineteenth centuries largely but not entirely succeeded in repealing -- that's an extremely interesting historical fact that casts a lot of light on the very assumptions underlying IP, and yet even the very tiny minority of us who oppose IP don't seem to be very much aware of that point. I will probably end up doing some such book(s) of that myself in the coming years, especially since I plan to be publishing a lot of both written work and artistic work. I plan to forfeit copyright protection to them while showing that I can still profit by doing so, so I might as well.
January 28, 2025
Prior to his death, Butler Shaffer, law professor and Austrian economist, wrote a concise and persuasive book, “ A Libertarian Critique of Intellectual Property” which examines the arcane subject of intellectual property or IP. Shaffer argues for the abolition of IP on both moral and economic grounds. With respect to the former, Shaffer has noted in his “Boundaries of Order”: “Private property, as a system of social order, reflects the extent to which we are willing to acknowledge one another’s autonomy and to limit the range of our own activities. Private property is the operating principle that makes real Immanuel Kant’s admonition: “Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.” With regard to the latter, Shaffer writes in the present work: “The notion that the anticipation of monopolistic rewards such as patents and copyrights is essential to the creative process, is negated by much of human history. I am unaware of any copyrights having been issued to writers such as Aeschylus, Homer, Shakespeare, Dante, or Milton; or composers such as Beethoven, Bach, Mozart, Wagner, or Tchaikovsky; or artists such as Van Gogh, Michelangelo, Da Vinci, Rembrandt, or Renoir. Were Leonardo’s or Gutenberg’s inventions, or the Egyptian pyramids, or the Roman aqueducts, rewarded by state-issued patents?”
Shaffer assiduously marshals evidence to show how IP law discourages the communal work of scientists, innovators, and creators, hence slowing the flow of ideas to the detriment of society as a whole.
That said, Shaffer’s views have been surmounted by positive law, and they are now considered unorthodox if not heretical. Conventional legal thought holds that intellectual property is a real, a defensible form of private property, and not a grant of monopoly by the state which actually does violence to the notion of private property.
IP is a legal barrier to creativity and invention, the existence of which results in opportunity costs detrimental to the civil, social order. Hitherto, English common law was reticent about assigning property rights to IP. However, as some writers note, modern IP law hearkens back to the medieval guild system which was largely transcended by the advent of capitalism in the 18th century.
Shaffer concludes by asking a poignant question: “ Can one, consistent with a libertarian philosophy, respect any “property” interest that is both created and enforced by the state, a system defined by its monopoly on the use of violence? “ In short, Shaffer’s book is provocative and well-written examination of a much neglected topic.
Shaffer assiduously marshals evidence to show how IP law discourages the communal work of scientists, innovators, and creators, hence slowing the flow of ideas to the detriment of society as a whole.
That said, Shaffer’s views have been surmounted by positive law, and they are now considered unorthodox if not heretical. Conventional legal thought holds that intellectual property is a real, a defensible form of private property, and not a grant of monopoly by the state which actually does violence to the notion of private property.
IP is a legal barrier to creativity and invention, the existence of which results in opportunity costs detrimental to the civil, social order. Hitherto, English common law was reticent about assigning property rights to IP. However, as some writers note, modern IP law hearkens back to the medieval guild system which was largely transcended by the advent of capitalism in the 18th century.
Shaffer concludes by asking a poignant question: “ Can one, consistent with a libertarian philosophy, respect any “property” interest that is both created and enforced by the state, a system defined by its monopoly on the use of violence? “ In short, Shaffer’s book is provocative and well-written examination of a much neglected topic.
March 11, 2017
Not a very convincing argument although at 54 pages it's not exactly a major waste of time. I enjoyed it, but I think there are stronger cases to be made.
September 1, 2016
Too much more could be said to rate this above three stars. Some of the analogies are rather weak (eg, what if language was copyrighted?!) Even so, it's a quick read that has a general argument that is persuasive.
April 21, 2014
Shaffer makes a lot of good points. The book is really short--he could have fleshed out his arguments better in a full-length monograph.
Displaying 1 - 7 of 7 reviews