Information, Scarcity, and Property
- Chapter 6: Information, Scarcity, and Property
Chapter 6: Information, Scarcity, and Property
“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.”
Thomas Jefferson, letter to Isaac McPherson (1813)^1^
Introduction
What is the relationship between information and property? The answer determines how privacy can be protected. If information content can be property, privacy might be protected through property rights in information itself. If information content cannot be property, privacy must be protected through other means.
Stephan Kinsella’s analysis provides the framework.^2^ Property rights apply only to scarce resources, those that one party’s use precludes another’s use. Information content, once known, can be used by unlimited parties simultaneously without depletion. It is non-scarce and therefore cannot be property.
This chapter follows the Kinsella framework because it is the direct application of scarcity-based property theory that Austrian economics has developed from Rothbard forward. The framework is not the only Austrian-libertarian position on intellectual property, and the chapter says so plainly. Murray Rothbard, in Man, Economy, and State, treated patent and copyright as separate cases: patent grants a monopoly that suppresses independent inventors and is illegitimate; copyright restated as a contractual reservation by an author against purchasers (the original meaning before the modern statutory regime) is in principle legitimate as a contract, though it does not bind third parties who never agreed to it. Kinsella’s later development sharpens Rothbard’s analysis by showing that the contractual route does not in fact reach what copyright statute does in operation (binding non-parties, controlling downstream physical media, surviving into the public domain), and by extending the same scarcity-based logic to all categories of state-granted information monopoly. The two positions converge on the points that matter for privacy: self-ownership covers the body and mind, physical property covers devices and premises, and contract creates enforceable confidentiality between parties who agree to it.^3^ The chapter develops the Kinsella version because it is more precise about what contract can and cannot do, but the privacy argument the book defends survives in either form.^4^
This does not leave privacy unprotected. Privacy is protected through self-ownership (control over one’s body and mind), physical property (devices, papers, homes), and contract (confidentiality agreements). These mechanisms protect privacy without treating information content as property, and understanding this distinction is essential for clear analysis of privacy economics.
6.1 Scarcity as the Foundation of Property
Why Property Rights Exist
Property rights exist to resolve conflicts over scarce resources. A scarce resource is one that, when used by one party, cannot simultaneously be used by another in the same way. Land, food, tools, and bodies are scarce: my use of this apple precludes your simultaneous use of the same apple.
Scarcity creates the potential for conflict. If multiple parties want to use the same resource in incompatible ways, they must either fight over it or agree on allocation rules. Property rights are allocation rules that assign control over resources to specific parties. Economists call this property of physical goods “rivalrousness”: one party’s use excludes another’s. Information is non-rivalrous — when you learn something I know, my knowledge is not reduced — which is why the same property logic does not apply to it.
Without scarcity, property rights serve no purpose. If a resource can be used by everyone simultaneously without conflict, no allocation rules are needed.^5^
A related distinction makes the framework cleaner. Possession is a factual matter: who currently controls a resource. Ownership is a normative one: who has the legal right to control it. Roman law and the Anglo-American common law both recognize the distinction, and Kinsella’s treatment makes it foundational.^6^ Property rights provide normative support for possession; they answer the question of who, in a dispute, has the better claim. Possession is descriptive. Ownership is prescriptive. The acquisition rules below allocate ownership; they do not describe who happens to be holding the thing at any given moment.
Physical Scarcity vs. Artificial Scarcity
Physical scarcity is inherent in the resource itself. Land is scarce because occupying one location precludes simultaneous occupation by another. Apples are scarce because eating one prevents anyone else from eating the same apple.
Artificial scarcity is imposed by external force on resources that are not inherently scarce. If I write a poem and you memorize it, you can recite it without diminishing my ability to recite it. The poem, as a pattern of words, is non-scarce. But if the state grants me a “copyright” enforced by violence, it artificially restricts your use of a non-scarce resource.
Property rights in physically scarce resources resolve real conflicts. “Property rights” in artificially scarce resources create conflicts that would not otherwise exist. They give one party control over how others may use their own legitimately owned physical resources.
6.2 “Intellectual Property” as Aggression
Section 6.1 established that property rights exist to resolve conflicts over scarce resources, and that information content is non-scarce. The implication: “intellectual property” creates artificial scarcity through state violence, violating actual property rights in physical resources.
Consider a simple case. Alice invents a new mousetrap design. Bob independently develops the same design, or learns of it and implements it using his own materials.
If Alice has “intellectual property” in the design, she can use state violence to prevent Bob from using his own materials (wood, springs, wire) in certain configurations. The state will punish Bob for arranging his own property in ways Alice disapproves.
The claim constitutes aggression. Bob has done nothing to Alice or her property. He has used his own property. The “intellectual property” claim is a claim that Alice can control how Bob uses Bob’s property, backed by state violence.
The Patent Example
Patents grant monopolies on ideas. A patent holder can prevent anyone else from implementing the patented idea, even someone who invented it independently.
The patent holder controls how others may use their own physical property. Independent inventors have no defense because the first to file wins. Competition is restricted not by superior service but by legal privilege. Innovation is taxed, as anyone improving on patented ideas must pay tribute.
Patents are state-granted monopoly privileges enforced through aggression against others’ actual property.^7^
The Copyright Example
Copyright grants control over copying patterns. A copyright holder can prevent others from arranging their own physical property (paper, ink, hard drives) in certain configurations.
You cannot print certain patterns on your own paper, store certain bit patterns on your own hard drive, or speak certain word sequences in commercial contexts. Your physical property is controlled by others’ claims to patterns.
Copyright operates as censorship backed by state violence: it restricts what you may do with your own physical property based on pattern similarity to patterns someone else claims.
IP as Nonconsensual Negative Servitude
The legal name for what the state grants the IP holder makes the framework precise. A negative servitude (or easement) is a property interest that lets one party prevent the owner of another resource from using it in specified ways. Consensual negative servitudes are common and unobjectionable: a restrictive covenant in a residential subdivision that forbids commercial use is a negative servitude every buyer accepts when buying in. What patent and copyright create is a nonconsensual negative servitude, granted by the state without the agreement of the owner whose use is restricted. The independent inventor never agreed to refrain from arranging his own materials in the patented configuration. The reader who buys a book never agreed to refrain from arranging bits on his own hard drive in the copyrighted pattern. The IP holder acquires, by state grant, the power of a co-owner over property he never owned and never bought.^8^
Creation Is a Source of Wealth, Not of Property
The error that keeps recurring under all this is the Lockean intuition that creation is a source of property rights, the idea that mixing one’s labor with something gives one ownership of it. Creation is a source of wealth, not a source of property. Every act of creation transforms already-owned input materials into a more valuable output configuration; the owner of the inputs is the owner of the outputs because he was the owner of the inputs, not because he created the outputs. Employees in a factory create the products and do not own them. Original appropriation, contractual transfer, and rectification are the three sources of property rights in scarce external resources. Self-ownership of the body grounds rights in one’s person. Creation is not a fourth source. The intuition that creators ought to own their creations is the ghost that animates IP advocacy, and it has to be rejected explicitly: useful ideas, original expressions, and recognizable brands are products of creation that increase wealth in the world, and none of them is property.^9^
6.3 Content vs. Media: The Critical Distinction
Information Exists on Physical Media
Information is always instantiated on physical media: a book is paper and ink arranged in patterns, a hard drive contains magnetic domains in specific configurations, and a brain contains neural patterns encoding memories and knowledge.
The media (paper, hard drive, brain) are scarce physical objects. The content (patterns, information, ideas) is non-scarce.
Property Rights Apply to Media, Not Content
You own your paper. You can do anything with it: write on it, burn it, fold it into a hat. Your property rights are complete.
You own your hard drive. You can store any bit patterns you want. Your property rights include determining what configurations your property takes.
But once you communicate content to another person, you cannot control what they do with their own media. If you tell me a secret and I write it in my notebook, you have no property claim to my notebook. The content, now in my mind and my notebook, is not your property.
What “Owning Information” Would Mean
If information content were property, teaching would be transfer of property (do teachers lose their knowledge when students learn?), learning would be acquisition of property (from whom? with what consent?), memory would be storage of others’ property (can they demand deletion?), and conversation would be property exchange (tracking who “owns” each idea discussed?).
These absurdities reveal that information-as-property is incoherent. Knowledge is not a thing that can be owned, lost, stolen, or transferred in the way physical objects can.
The “Theft” Confusion
When someone copies your file without permission, have they “stolen” it? No. You still have your file, nothing has been taken from you, and your property is intact.
What has happened is that they have created new patterns on their own media, patterns similar to patterns on your media. This may violate contract if they had agreements with you. It may be wrong for other reasons. But it is not theft because nothing was taken.
The language of “stealing” ideas confuses the issue by importing property concepts where they do not apply.
6.4 How Privacy Is Protected
If information content cannot be property, how is privacy protected? Through three mechanisms that do not require information-as-property claims.
Self-Ownership
Chapter 4 argued that self-ownership follows from argumentation ethics. Self-ownership grounds claims to mental privacy and bodily integrity, as well as control over what you express. Your thoughts are yours, and extracting them without consent stands in tension with that claim. Your body is yours, and uninvited examination or monitoring stands in the same relation. You choose what to communicate, and silence remains within your control.
Self-ownership protects privacy at the source. Before information is communicated, it exists only in your mind and body, which are yours.
Physical Property
You own your devices and papers, your home and hard drives. Property rights over these objects include deciding who may enter and refusing search without consent. You determine how your property is configured, including what data your devices store.
Physical property rights protect information by protecting the media on which it exists. Your encrypted hard drive is your property. Others have no automatic right to access it, and any claim to compel decryption would need separate justification beyond the property claim itself.
Contract
Voluntary agreements can create enforceable obligations.^10^ Non-disclosure agreements bind parties not to reveal certain information. Employment or service contracts may include confidentiality clauses. Attorneys, doctors, and clergy operate under traditional professional privilege requiring confidentiality.
Contract protects privacy through voluntary commitment. When someone agrees to keep information confidential, they become bound by that agreement.
Breach of confidentiality agreements is more than “breaking a promise.” When payment is made under the condition of secrecy, revealing the secret can amount to taking payment under false pretenses. The money was transferred conditionally; accepting payment while violating the condition is at least fraud, and in some cases can be treated as theft of a conditional transfer, not mere breach of an abstract obligation. Contract violations have teeth because they involve transfers of scarce resources made under specific conditions.
Contract binds the parties who agreed to it. It does not bind third parties who never agreed. An employee under a non-disclosure agreement is bound by it; a stranger who finds the document on a sidewalk has no obligation under it. A licensee who accepts terms of use is bound on those terms; a friend who borrows the licensee’s copy is bound only by whatever separate agreement, if any, the friend made. The reach of contract is the reach of consent, and consent does not propagate to non-signatories. This is what distinguishes the contract route from a property claim in the information itself: a property claim would reach everyone, including independent discoverers and downstream non-parties; a contract reaches only those who agreed. The book treats this limit as a feature of the framework, an honest accounting of what voluntary agreement can and cannot do.
Trade Secrets
The trade secret is the cleanest case for showing what the framework does and does not protect, because it isolates the question from the patent and copyright debates.
Consider a beverage firm with a recipe its competitors would value. The recipe is protected by a combination of measures: the document itself sits in physical security; employees with access have signed non-disclosure agreements; the firm has invested heavily in vault construction and personnel screening; and the firm trades on the brand and the manufacturing capacity it has built around the secret. None of these measures involves a property claim in the recipe pattern itself. They are property claims in scarce physical resources (document, vault, manufacturing plant) and contractual claims against parties who agreed to confidentiality. The combination is sufficient to keep the secret in practice over the long run.
The framework’s predictions for the edge cases are clear. A burglar who breaks into the vault commits aggression against physical property and is liable on those grounds. An employee who leaks the recipe in violation of the NDA has accepted payment conditionally and committed fraud or breach of contract on those grounds. A chemist who buys a bottle off the shelf and reverse-engineers the formula commits no aggression: the chemist has used his own equipment and his own mind to arrive at a pattern that happens to match the firm’s. He owes the firm nothing. An independent inventor who arrives at the same recipe without ever encountering the firm’s product commits no aggression for the same reason. These predictions match what a reasonable libertarian intuition holds, and they match Rothbard’s position on patent in Man, Economy, and State: independent discovery is not theft, and reverse engineering of legitimately acquired physical property is not theft either.
The trade secret holder’s position is therefore strong without requiring property in the pattern. The holder’s protection comes from physical security of the storage media, contractual obligations of the people granted access, plus the labor and capital invested in keeping the secret close. What the holder does not have is a claim against the world. That absence is the whole content of the disagreement with patent law, and it is the position Rothbard and Kinsella converge on, the same position the framework this book follows extends.
These three mechanisms do not include property rights in information content itself, claims against people who independently discover the same information, rights to prevent others from using their own property in certain ways, or control over information after voluntary, unconditional disclosure. If you tell a stranger your secret with no confidentiality agreement, you have no property claim to prevent them from sharing it. You controlled disclosure (self-ownership); you could have kept silent. Having chosen to speak, you cannot claim property rights in the patterns now in their mind.
6.5 Implications for Privacy Analysis
What “Privacy Violation” Means
Given this framework, privacy violation is not someone knowing information you wish they did not know; that may be unfortunate but is not a violation. In the standard case, privacy violation means someone accessing information through aggression against person or property.
Examples of violation include forcibly extracting information through torture or coerced testimony, trespassing to obtain information by breaking into home or device, breaching confidentiality contract which constitutes theft of conditional payment, and fraud to obtain information through impersonation or deception.
Examples of non-violation include observing someone in public, receiving information voluntarily shared, independently discovering information, and learning information from someone who was told without confidentiality agreement.
Reputation Is Not Property
A related case the framework rules out is that reputation is not property. A reputation is what other people think about a person. It exists in their minds and on their media, not in any resource the person being talked about owns. Defamation law, like trademark and copyright, asserts a property-like interest in something non-scarce, in this case what other people believe and what audiences attend to. The framework treats false speech the same way it treats true speech: legitimate response is counter-speech, withdrawal of patronage, and social withdrawal. Where speech plays a causal role in actual aggression, a witness lying on the stand to send the defendant to prison, an order to commit assault, incitement of a crowd to lynch, the speaker is liable for the aggression his speech causes, not for damaging the victim’s reputation as such. The same conclusion this chapter reached for patents and copyrights applies here: state enforcement of reputation rights against peaceful speech is aggression, not protection.^11^
The Role of Technology
Technology changes what is possible, not what is legitimate.
Encryption protects physical property (your devices) from search. This is an exercise of property rights, not a new right created by technology.
Anonymous networks protect self-ownership by enabling communication without revealing identity. This extends the natural privacy of in-person cash transactions to digital contexts.
Privacy technology implements existing rights. It does not create new rights or new categories of property.
Free and Open-Source Software as the Working Example
Free and open-source software^14^ is the standing proof that the non-scarcity framework describes a functioning economy. Source code is a pattern; once released under a permissive or copyleft license, the pattern can be copied, modified, and redistributed by anyone with the physical media to hold it. No artificial-scarcity enforcement is invoked, and the software still gets written, maintained, and improved at a scale that now runs most of the world’s servers, embedded devices, and cryptographic infrastructure. Linux,^15^ OpenSSH, OpenSSL, GnuPG, Bitcoin Core, Tor,^16^ Signal,^17^ and the compiler toolchains that produce them are all instances of valuable software produced without the patent and copyright assumptions mainstream economics treats as necessary conditions for software production.
The revenue models that support this work are consistent with the framework. Developers are paid for scarce inputs: their time, their attention, their domain expertise, and their reputations for delivering working code. Firms pay for support contracts, custom development, hosted instances, and hardware that runs the software. Foundations collect voluntary contributions from users who benefit from the work and want it to continue. None of these arrangements requires property claims over the patterns themselves; they require ordinary contracts over the scarce labor and services that produce and maintain the patterns. The license attached to the code is a disclaimer of certain state-granted privileges, not an assertion of property in the content.
The licenses in wide use fit the same logic. Permissive licenses (MIT, BSD, Apache) allow any downstream use and rely on the underlying fact that the content is not property; they disclaim the state-granted copyright privilege entirely. Copyleft licenses (GPL, AGPL)^18^ use the copyright privilege instrumentally: a conditional grant that requires downstream distributors to extend the same freedoms to their users, so that the artificial scarcity cannot be closed back up at a later stage in the supply chain. Both strategies treat copyright as a privilege to be neutralized, and both produce software with longer service lives, broader audit exposure, and greater resistance to supplier capture than the closed-source alternatives the framework’s critics predicted would outcompete it.
The practical implication for privacy is direct. Every privacy-critical primitive this book relies on, including the cryptographic libraries in Chapter 14, the anonymity networks in Chapter 17, the Bitcoin implementations in Chapters 18 through 20, the zero-knowledge tooling in Chapter 15, and the secure-computation runtimes in Chapter 16, is free software. Their auditability is what makes the resistance claims in Chapter 5 credible in the first place; a privacy tool whose source is closed is a privacy tool whose adversary-model includes its own author. Free software is the operating environment in which the book’s technical arguments hold, and its existence is the economic vindication of the non-scarcity framework developed in this chapter.
“Surveillance Capitalism” and Information Economics^19^
Whether companies that collect data about users commit privacy violation depends on the terms. If users agree to data collection (however unwisely) in exchange for services, no violation occurs: it is voluntary exchange. The exchange may be foolish, the terms may be buried in dense agreements, but consent was given.
If companies collect data without consent or through deception that exceeds the scope of agreements, this may violate contract or involve fraud.
But the data collected, once in the company’s possession, is stored on their media. They own their servers. The information patterns on those servers are not “your property” that you can reclaim. The remedy for excessive data collection is not property claims but better contracts and privacy-preserving competition.^12^
Chapter Summary
Property rights apply to scarce resources, and scarcity is what creates the conflicts property rights exist to resolve. Information content is non-scarce: unlimited parties can hold the same idea without conflict. It cannot be property, and the mechanisms patents and copyrights use to pretend otherwise create artificial scarcity through state violence, granting some parties control over how others may arrange their own physical media. That is restriction enforced by aggression, not protection of rights.
Privacy does not need information-as-property to be defensible. Self-ownership protects mind and body, physical property protects devices and papers and homes, and contract creates enforceable confidentiality obligations through voluntary agreement. These three mechanisms cover the person and their possessions, not abstract patterns of information. They do not reach independent discoverers, downstream use of other people’s property, or information voluntarily disclosed without condition, and they should not; the framework rejects ownership claims over patterns and limits ownership to scarce things. Free and open-source software is the standing empirical confirmation of the framework. Source code is a non-scarce pattern released under licenses that disclaim or neutralize the copyright privilege, and the resulting software runs most of the world’s cryptographic and communications infrastructure while developers are compensated for scarce inputs (time, attention, expertise) through ordinary contracts for labor, support, and services.
What this chapter sets is the criterion, not its full application. A complete theory of commercial data practices needs Chapter 11’s treatment of deceptive collection, and the technical means of enforcing privacy when contract alone does not suffice belong to the later chapters on cryptography, anonymous networks, and private monetary layers. The privacy tools this book relies on implement existing rights, and the next three chapters carry the framework into exchange, capital theory, and monetary analysis.^13^
Endnotes
^1^ Thomas Jefferson, letter to Isaac McPherson, August 13, 1813, in The Writings of Thomas Jefferson, ed. Andrew A. Lipscomb and Albert E. Bergh (Washington, DC: Thomas Jefferson Memorial Association, 1905), 13:326–338, available at the Library of Congress at https://founders.archives.gov/documents/Jefferson/03-06-02-0322. The letter is the canonical statement of the anti-intellectual-property position by one of the officials who would, in his role as Secretary of State and then President, administer the American patent system. The modern restatement of Jefferson’s argument is Stephan Kinsella, Against Intellectual Property (Auburn, AL: Ludwig von Mises Institute, 2008), 15, which this chapter develops in detail and which provides the contemporary theoretical framework.
^2^ Kinsella’s fullest statement is Against Intellectual Property, originally published as “Against Intellectual Property,” Journal of Libertarian Studies 15, no. 2 (2001): 1-53. See also his blog at https://stephankinsella.com for ongoing elaboration and responses to critics.
^3^ Rothbard’s treatment in Man, Economy, and State (cited at Chapter 3, note 3), chapter 10 §7, distinguishes patent (a state-granted monopoly that suppresses independent inventors and is therefore illegitimate) from copyright reframed as a contractual restriction freely accepted by purchasers (which Rothbard argues is in principle legitimate as a private agreement, though he acknowledges it does not bind third parties who never agreed). The distinction was a real intellectual contribution and is the version of the libertarian-Austrian position most commonly cited in the older Mises Institute orbit. Eric Voskuil’s libbitcoin “Patent Resistance Principle” (https://github.com/libbitcoin/libbitcoin-system/wiki/Patent-Resistance-Principle) works within the same Rothbardian register at the protocol-design level, treating patents as a state-granted monopoly that Bitcoin’s open-source-license-and-prior-art posture is built to neutralize.
^4^ Kinsella’s developments since Against Intellectual Property (2001) sharpen the contract-route argument by showing what it does and does not deliver. A contract binds its parties; it does not bind third parties; downstream readers of a book never agreed to the publisher’s terms; therefore “copyright as contract” cannot reach what statutory copyright reaches in operation (binding all third parties, including those who acquire the work without notice). Kinsella’s title-transfer theory of contract, developed in The Title-Transfer Theory of Contract (Papinian Press Working Paper No. 1, 2024), explains why obligations transfer with consent and not otherwise. The disagreement between Rothbard’s older treatment and Kinsella’s later one is narrower than it appears: both reject patent, both accept that a contract binds its signatories on the conditions they agreed to, and both deny that the contract route delivers a claim against third parties. The book’s privacy argument depends on the points the two positions share, not on the points where they diverge.
^5^ On scarcity as the foundation of property, see Murray N. Rothbard, The Ethics of Liberty (cited at Chapter 2, note 3), chapters 6-8, and Hans-Hermann Hoppe, A Theory of Socialism and Capitalism (cited at Chapter 3, note 7), chapter 2. On the economics of non-rivalrous goods and the empirical case against intellectual monopoly, see Michele Boldrin and David K. Levine, Against Intellectual Monopoly (Cambridge: Cambridge University Press, 2008), https://levine.sscnet.ucla.edu/general/intellectual/against.htm.
^6^ On the possession-vs-ownership distinction, see Stephan Kinsella, “Another Way to Explain the Problem with IP: Resources v. Knowledge, Ownership v. Possession,” Center for the Study of Innovative Freedom (February 2017), https://c4sif.org/2017/02/another-way-to-explain-the-problem-with-ip-resources-v-knowledge-ownership-v-possession/. The Roman-law sources are summarized in J. A. C. Thomas, Textbook of Roman Law (North-Holland, 1976), §§13–14. For the modern statement of the same distinction within Kinsella’s framework, see Legal Foundations of a Free Society (Papinian Press, 2023), Appendix I, on possession, ownership, and the right to possess.
^7^ On the distinction between property and privilege, see Rothbard, The Ethics of Liberty (cited at Chapter 2, note 3), chapter 10, and Lysander Spooner, “The Law of Intellectual Property” (1855), which argued for intellectual property but illuminates the issues.
^8^ On intellectual property as a nonconsensual negative servitude, see Stephan Kinsella, “Intellectual Property Rights as Negative Servitudes,” Center for the Study of Innovative Freedom (June 2011), https://c4sif.org/2011/06/intellectual-property-rights-as-negative-servitudes/. The framing is restated in Kinsella, The Problem with Intellectual Property (Papinian Press Working Paper No. 2, 2025), §III.A.2. On the distinction between consensual and nonconsensual servitudes in property law, see A. N. Yiannopoulos, Louisiana Civil Law Treatise: Predial Servitudes, 4th ed. (West, 2013), and the Roman-law treatment in Justinian, Digest, Book 8.
^9^ The Lockean intuition that mixing one’s labor with a resource gives one ownership of it is set out in John Locke, Second Treatise of Government (1689), §27 (“Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property”); the canonical online edition is at https://www.gutenberg.org/ebooks/7370. On the rejection of creation as a source of property rights, see Stephan Kinsella, “Libertarian Lockean Creationism,” Center for the Study of Innovative Freedom (May 2025), https://c4sif.org/2025/05/libertarian-lockean-creationism/, and Kinsella, The Problem with Intellectual Property (Papinian Press, 2025), §III.A.1. The same point is made at length in Kinsella, “Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging,’” Center for the Study of Innovative Freedom (2010). For the broader case that IP is not property at all, see Kinsella, “IP Is Not (Not) Property” (April 2025), https://c4sif.org/2025/04/ip-is-not-not-property/. Roderick T. Long, “Owning Ideas Means Owning People,” Cato Unbound (November 19, 2008), http://www.cato-unbound.org/2008/11/19/roderick-long/owning-ideas-means-owning-people, and Long’s earlier “The Libertarian Case Against Intellectual Property Rights,” Formulations 3, no. 1 (Autumn 1995), http://freenation.org/a/f31l1.html, develop the implication that IP claims trace back to claims over other persons.
^10^ On contract as the basis for confidentiality, see Randy Barnett, “A Consent Theory of Contract,” Columbia Law Review 86 (1986): 269-321, and Kinsella’s discussions of trade secrets in Against Intellectual Property (cited in note 2 above).
^11^ On reputation as non-property and the incompatibility of defamation law with the framework, see Stephan Kinsella, “Defamation as a Type of Intellectual Property” (cited at Chapter 2, note 10), and the earlier post at https://c4sif.org/2024/07/defamation-type-of-ip/. The framework treats reputation as the contents of other people’s beliefs, which are non-scarce and therefore non-ownable; the same scarcity-based reasoning that rules out patents and copyrights rules out reputation rights. Murray N. Rothbard’s classic statement is “Knowledge, True and False,” in The Ethics of Liberty (cited at Chapter 2, note 3), chapter 16, which argues that defamation actions are illegitimate because no one owns the contents of others’ minds. Walter Block, “The Slanderer and Libeler,” in Defending the Undefendable (Fleet Press, 1976), reaches the same conclusion through a different route. On the causal-incitement cases that are sometimes mistaken for defamation, see Kinsella, “Causation and Aggression,” in Legal Foundations of a Free Society (Papinian Press, 2023), chapter 8.
^12^ On data and privacy in the digital age from a property-rights perspective, see Stephan Kinsella’s ongoing writing at https://stephankinsella.com (in particular his essays tagged “intellectual property” and “Against IP Reader”) and the Center for the Study of Innovative Freedom at https://c4sif.org. See also Kinsella, You Can’t Own Ideas: Essays on Intellectual Property (Papinian Press, 2023), which collects his most recent treatments. On the “data ownership” framing specifically, see Jaron Lanier, Who Owns the Future? (Simon & Schuster, 2013), which argues for data as property from a non-libertarian standpoint; Kinsella’s response is in his blog post “Data Ownership Misses the Point.”
^13^ Further reading on intellectual property from multiple perspectives.
^14^ Richard Stallman, “What is Free Software?”, GNU Project, https://www.gnu.org/philosophy/free-sw.html. The canonical definition of free software: software that grants users the freedoms to run, study, modify, and redistribute it. The Free Software Foundation, founded by Stallman in 1985, provides the ideological and legal infrastructure (including the GPL) behind the examples this section cites. For the broader movement, see Sam Williams, Free as in Freedom: Richard Stallman’s Crusade for Free Software (O’Reilly Media, 2002), https://www.oreilly.com/openbook/freedom/. The term “open-source” was coined in 1998 by Christine Peterson and formalized by the Open Source Initiative; see https://opensource.org/history.
^15^ Linus Torvalds announced the Linux kernel in a 1991 Usenet post to comp.os.minix: “I’m doing a (free) operating system (just a hobby, won’t be big and professional like gnu) for 386(486) AT clones.” The kernel’s source is at https://kernel.org. Linux is the paradigm case of large-scale software production without intellectual-property enforcement; see Steven Weber, The Success of Open Source (Harvard University Press, 2004), for the political economy of its development model.
^16^ The Tor Project, https://www.torproject.org. Tor (The Onion Router) is a free, open-source anonymity network that routes traffic through a series of volunteer-operated relays, encrypting each layer so no single relay knows both source and destination. Originally developed by the U.S. Naval Research Laboratory; see Roger Dingledine, Nick Mathewson, and Paul Syverson, “Tor: The Second-Generation Onion Router,” Proceedings of the 13th USENIX Security Symposium (2004), https://svn.torproject.org/svn/projects/design-paper/tor-design.pdf. Tor is the primary anonymity-network primitive this book’s Chapter 17 relies on.
^17^ Signal, https://signal.org. Signal is a free, open-source encrypted messaging application developed by the Signal Foundation (formerly Open Whisper Systems). Its cryptographic protocol - the Signal Protocol, combining the Double Ratchet Algorithm and the X3DH key agreement - is the basis for end-to-end encryption in WhatsApp, Google Messages, and several other mainstream applications. See Moxie Marlinspike and Trevor Perrin, “The Double Ratchet Algorithm” (2016), https://signal.org/docs/specifications/doubleratchet/. Signal is cited in this book as an instance of privacy-critical infrastructure produced under open-source licensing.
^18^ Richard Stallman, GNU General Public License, version 2 (1991) and version 3 (2007), https://www.gnu.org/licenses/gpl-3.0.html. The GPL is the founding copyleft instrument: it grants all the freedoms of free software while requiring that any distributed derivative work carry the same license, preventing downstream parties from closing the code. The Affero GPL (AGPL) extends this to network-deployed software. The legal mechanics are analyzed in Eben Moglen, “Enforcing the GNU GPL,” Columbia Law School (2001), https://moglen.law.columbia.edu/publications/lu-12.html. The strategy described in the body text - using the state-granted copyright privilege instrumentally to prevent re-enclosure - is Stallman’s invention and represents the clearest example of the framework in section 6.2: using an existing legal mechanism against the grain of its original purpose.
^19^ Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power (PublicAffairs, 2019). Zuboff’s argument is that platform firms extract “behavioral surplus” - data beyond what is needed to provide the service - and use it to build predictive products sold to advertisers. The section heading uses her term; the analysis differs: where Zuboff argues for a new property right in behavioral data, the framework here denies that data patterns can be property and locates the remedy in contract and competition rather than data-ownership claims. The disagreement is fundamental and is the precise point at which the Austrian property-rights framework and the progressive data-rights framework diverge. Kinsella’s most recent restatements of the framework: The Problem with Intellectual Property (Papinian Press Working Paper No. 2, 2025), https://stephankinsella.com/wp-content/uploads/publications/kinsella-problem-intellectual-property-v1.1-2025.pdf, is the current book-chapter treatment, with The Title-Transfer Theory of Contract (Papinian Press Working Paper No. 1, 2024) as the companion contract paper. The libertarian-Austrian case at book length: Stephan Kinsella, Against Intellectual Property (Mises Institute, 2008), http://www.stephankinsella.com/wp-content/uploads/publications/kinsella-against-IP-book.pdf; his You Can’t Own Ideas: Essays on Intellectual Property (Papinian Press, 2023) collects the more recent essays. The shorter pieces directly relevant to this chapter’s framing: Kinsella, “Intellectual Property Rights as Negative Servitudes” (cited in note 8 above), develops the negative-servitude framing this chapter relies on; Kinsella, “Another Way to Explain the Problem with IP” (cited in note 6 above), develops the possession-vs-ownership distinction; Kinsella, “Libertarian Lockean Creationism” (cited in note 9 above), names the recurring error this chapter rejects. Roderick T. Long, “Owning Ideas Means Owning People” (cited in note 9 above), traces the IP claim to its implication that the holder owns part of other persons. On the mainstream-economics critique of intellectual monopoly, Michele Boldrin and David K. Levine, Against Intellectual Monopoly (cited in note 5 above), is the empirical treatment. Fritz Machlup, An Economic Review of the Patent System, Study No. 15 (U.S. Senate Subcommittee on Patents, 1958), is the classic institutional-economics study that concluded the patent system could not be justified on the evidence available. For historical context, Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates (University of Chicago Press, 2009), is the standard history. On copyright specifically, Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (Penguin, 2004), is the canonical mainstream-progressive critique; Tom W. Bell, Intellectual Privilege: Copyright, Common Law, and the Common Good (Mercatus Center, 2014), is the more libertarian version. The opposing view, for fairness: William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Harvard University Press, 2003), is the standard law-and-economics defense of the existing system.
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