My Austrian Scholars Conference 2008 Rothbard Memorial Lecture, "The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism" (originally titled "Rethinking IP Completely"), is now online. Here's the audio, the video, and the accompanying Powerpoint presentation (PPT, 32 MB; PDF version, 51 MB). Update: the Google Video version is now available; embedded version below.

Potentially having high market value, an intellectual work must be regarded as property in its own right. Among other things, this is because its value, whether utilitarian or aesthetic, can be appropriated by theft (irrespective of the possibility that any number of copies may remain with its possessor).

Despite crazy definitions to the contrary, thieves do not have uppermost in their minds the concept or intent of denying a legitimate owner the use of their property, but rather the concept and intent of seizing valuable/saleable property without payment (where the effort of theft is expected to be lower than the amount expected to be recovered through possession/use/benefit/exchange of the stolen property).

One cannot simply have a statutory penalty for violation of someone's privacy right. One must also consider the market value of the intellectual property so appropriated, and ideally the cost of its return/repossession.

The fundamental flaw in most people's notions of IP is not primarily that creation confers ownership (this tends to be coincident even with your first-comer idea), but that one should continue to own one's IP even after one has parted with it (sale or gift). But for this, the legitimate owner of a book cannot be stealing it's author's property by making copies of their purchased book, unless one sustains the idea that the author owns all copies of their book even after they've sold them.

So it's quite possible to accept intellectual property as arising out of natural law, e.g. you write a book, you have absolute ownership and control over that book. Similarly with copies: you make a copy, you have absolute ownership and control over that copy. However, the author has no natural right to control what people do with the copies they purchase, e.g. make further copies or derivatives. Privileging the author to the contrary (for the publisher's benefit) is the unnatural misstep, the strings the state attached that nature did not.

Copyright is unnatural. All state granted monopolies are unnatural, patent included.

Intellectual property is natural. The effective monopoly over access to one's private domain and control over the material and intellectual properties within it is also natural, and thus to be protected by the state.

I was going to complain about ownership in intangibles, but then I thought of my computer. I do not just own my hard drive, I also own the files on it, and copying those files without my permission I would consider theft. Still that leaves open the question of whether intellectual property really requires special recognition, as it follows naturally from my ownership of my tangible property.

Thus to be protected by the state? The state, protecting rights? Now, that's an interesting idea!

I do not just own my hard drive, I also own the files on it, and copying those files without my permission I would consider theft.

If you consider that theft, then you are quite simply and obviously wrong.

It is absolutely a violation. It is absolutely not theft.

This muddying of definitions due to another sort of violation can serve no purpose except to add to the power of the state as we've seen with all the recent imaginary property laws.

Pretending that one sort of violation is an entirely different sort merely to try and gain some advantage for yourself through the mechanisms set up (ostensibly) to defend the right of real property is, in my opinion, a far worse violation than the one that was only enabled by your failure to take responsibility for the security of your own computer.

Your failure to take responsibility to protect something you feel is valuable (and I most likely do not) does not confer upon me a responsibility to deal with new laws restricting my ability to engage in perfectly legitimate activities because you refuse to take the appropriate precautions with the things you consider valuable.

It is theft if the drive is private (clearly in one's private domain and not made accessible to the public) and the thief has not been made privy to the drive's contents.

When a drive may be worth $10, and the value of an unpublished masterpiece upon it worth orders of magnitude more, one can't wave away the theft of unauthorised copies as a figment of the imagination, and simply say this was a privacy violation with statutory fine - even if no physical property was removed or damaged.

The theft of intellectual property must be recognised and restorative justice obtained.

Just because copyright has been abusively claimed to grant property rights to published works doesn't mean that without copyright there aren't natural property rights to private works.

Indeed, it is only copyright that interferes with our natural intellectual property rights, and gives the idea of owning intellectual works such a bad name.

Despite crazy definitions to the contrary, thieves do not have uppermost in their minds the concept or intent of denying a legitimate owner the use of their property, but rather the concept and intent of seizing valuable/saleable property without payment

That's true as far as the thief's motivation is concerned, but the thief's mental state is not what makes theft a harmful act. That is, the reason we try to stop theft is not because we want thieves to be disappointed, but rather because we don't want legitimate owners to be deprived of the use of their property.

So it's quite possible to accept intellectual property as arising out of natural law, e.g. you write a book, you have absolute ownership and control over that book. Similarly with copies: you make a copy, you have absolute ownership and control over that copy.

But a copy only exists as part of the physical medium in which it's stored. In order to control the copy, you must control the medium; and if you control the medium, you control the copy. What purpose, then, is served by introducing intellectual property rights in addition to physical property rights, if you're going to stop short of giving the "owner" control over copies that exist in mediums they don't own (i.e. if you're not going to use this form of ownership to reimplement copyright)?

When a drive may be worth $10, and the value of an unpublished masterpiece upon it worth orders of magnitude more, one can't wave away the theft of unauthorised copies as a figment of the imagination, and simply say this was a privacy violation with statutory fine - even if no physical property was removed or damaged.

I believe you can. The question to ask isn't "what has the 'thief' gained", but rather "what has the 'owner' lost". If they still have the drive, and it still has their unpublished masterpiece on it, then they've lost nothing; and if they've lost nothing, there is no theft at all, only copying.

I'm not trying to change the definition of theft to encompass IP theft, but as an aside correcting the definition of material theft back to the more common sense understanding. The definition that it is 'depriving of use' is an over-simplification and thus does not cover all cases. It certainly isn't the layman's definition. Theft is unauthorised removal of something from someone's private domain. The severity of the theft is in proportion to the value of the item removed.

If someone substitutes a fake Mona Lisa in place of the genuine one, they have not deprived the owner of its use, they have merely substituted an almost indistinguishable copy in place of the original. However, they have removed something of extreme value.

In the case of IP, a copy has been manufactured and removed, whilst leaving an indistinguishable copy behind. Moreover, in the case of unpublished works, the market value of a work is maximal.

If you cannot tolerate the idea of IP theft (despite the contemporary abuse of that term to cover unprivileged reproduction of legitimately purchased publications) then do you still not otherwise believe that a value-proportionate crime should occur upon an unauthorised removal of a copy of a private work?

Your failure to take responsibility to protect something you feel is valuable (and I most likely do not) does not confer upon me a responsibility to deal with new laws restricting my ability to engage in perfectly legitimate activities because you refuse to take the appropriate precautions with the things you consider valuable.

If I didn't know better I'd mistake this for an argument against property rights in general.

Implementing intellectual property would, for legitimate activities, be no different than lack of intellectual property. The only situation in which it makes a difference is if you're trying to get your hands on intellectual work the owner doesn't want you to have.

If you bought it, then you can do anything you want with it, as you would be able to do with ordinary property you bought. The separation of the right to use and the right to copy (both property rights) is what is causing trouble - copyright - not the concept of intellectual property rights.

What purpose, then, is served by introducing intellectual property rights in addition to physical property rights, if you're going to stop short of giving the "owner" control over copies that exist in mediums they don't own (i.e. if you're not going to use this form of ownership to reimplement copyright)?

I have no intention of stopping short from giving owners control over copies in media they don't own. Why should I? It ought to be a fairly rare occurrence, however. The situation would be similar to me pouring my wine into your bottle. You don't automatically own my wine, but I suppose you do have a right to remove my wine from your bottle if I had no permission to put it there in the first place.

Copyright isn't giving owners of intellectual property control over copies in media they don't own. Copyright is a separation of the right to use and the right to copy. In other words, they're claiming that you do have all of the rights to the copy that you own, except the right to copy it. That is obviously nonsensical and has got nothing to do with traditional ideas of property, while the concept of true intellectual property is not that big of a jump.