Against Intellectual Property by Stephen Kinsella
Intellectual Property and Property Rights
Property and Scarcity
Let us take a step back and look afresh at the idea of property rights.
Libertarians believe in property rights in tangible goods, resources.
Why? What is it about tangible goods that makes them subjects for property rights?
Why are Tangible Goods Property?
A little reflection will show that it is these goods' scarcity,
the fact that there can be conflict over these goods by multiple human actors.
The very possibility of conflict over a resource renders it scarce,
giving rise to the need for ethical rules to govern its use.
Thus, the fundamental social and ethical function of property rights is to prevent
and Interpersonal Conflict over Scarce Resources.
As Hoppe notes,
Only because scarcity exists is there even a problem of formulating moral laws.
Insofar as goods are superabundant, free goods, no conflict over the use of goods is possible
and no action coordination is needed.
Hence it follows that any ethic correctly conceived must be formulated as a theory of
and Property, i.e. a theory for the assignment of rights of exclusive control over scarce means,
because only then does it become possible to avoid otherwise inescapable and unresolvable conflict.
Others who recognize the importance of scarcity in defining what property is include Plant, Hume, Palmer, Rothbard and Tucker.
Nature, then, contains things that are economically scarce.
My use of such a thing conflicts with, excludes, your rights of it, and vice versa.
The function of property rights is to prevent interpersonal conflict over scarce resources
by allocating exclusive ownership of resources to specified individuals, owners.
To perform this function, property rights must be both visible and just.
Clearly, in order for individuals to avoid using property owned by others, property borders and property rights must be objective, intersubjectively ascertainable. They must be visible. For this reason, property rights must be objective and unambiguous. In other words, good fences make good neighbours.
Property rights must be demonstrably just, as well as visible, because they cannot serve their function of preventing conflict unless they are acceptable as fair by those affected by the rules.
If property rights are allocated unfairly or simply grabbed by force, this is like having no property rights at all. It is merely might versus right again, i.e. the pre-property rights situation.
But as libertarians recognize, following Locke, it is only the first occupier or user of such property that can be its natural owner.
Only the first-occupier homesteading rule provides an objective, ethical and non-arbitrary allocation of ownership in scarce resources.
When property rights in scarce means are allocated in accordance with first-occupier homesteading rules,
and Steading Rules, property borders are visible and the allocation is demonstrably just.
Conflict can be avoided with such property rights in place because third parties can
see and thus sidestep the property borders and be motivated to do so because the allocation
is just and fair.
But surely it is clear given the origin, justification and function of property rights that they
They are applicable only to scarce resources.
Were we in a garden of Eden where land and other goods were infinitely abundant, there
would be no scarcity and therefore no need for property rules.
Property concepts would be meaningless.
The idea of conflict and the idea of rights would not even arise.
For example, your taking my lawnmower would not really deprive me of it if I could conjure
Lawnmower taking in these circumstances would not be theft. Property rights are not applicable
to things of infinite abundance because there cannot be conflict over such things. Thus,
property rights must have objective, discernible borders and must be allocated in accordance
with the first-occupier homesteading rule. Moreover, property rights can apply only to
The problem with IP rights is that the ideal objects protected by IP rights are not scarce, and, further, that such property rights are not, and cannot be, allocated in accordance with the first-occupier homesteading rule, as will be seen below.
Scarcity and Ideas
Ideas
Like the magically reproducible lawnmower, ideas are not scarce. If I invent a technique
for harvesting cotton, your harvesting cotton in this way would not take away the technique
from me. I still have my technique as well as my cotton. Your use does not exclude my
use. We could both use my technique to harvest cotton. There is no economic scarcity and
There is no possibility of conflict over the use of a scarce resource. Thus, there is no need for exclusivity.
Similarly, if you copy a book I have written, I still have the original, tangible book, and I also still have the pattern of words that constitute the book.
Thus, authored works are not scarce in the same sense that a piece of land or a car are scarce.
If you take my car, I no longer have it, but if you take a book pattern and use it to make your own physical book, I still have my own copy.
The same holds true for inventions and indeed for any pattern or information one generates or has.
As Thomas Jefferson, himself an inventor, as well as the first patent examiner in the US, wrote,
He who receives an idea from me receives instruction himself without lessening mine, as he who
lights his taper at mine receives light without darkening me.
In a footnote, the author cites Thomas Jefferson in a letter to Isaac MacPherson Monticello,
August 13, 1813, from the writings of Thomas Jefferson, Volume 13, edited by A. A. Lipscomb
and A. E. Berg, Washington D.C., Thomas Jefferson Memorial Association, 1904, p. 326-338.
Jefferson recognized that because ideas are not scarce, patent and copyright are not natural
rights and can be justified only, if at all, on the utilitarian grounds of promoting useful
inventions and literary works, and even then they must be created by statute since they
They are not natural rights. See also Palmer, Intellectual Property and Non-Posnarian Law
and Economics Approach, page 278. Yet this does not mean that Jefferson supported
patents even on utilitarian grounds. Patent historian Edward C. Walterschied explains
that throughout his life Jefferson retained a healthy scepticism about the value of the
System, Thomas Jefferson and the Patent Act of 1793, Essays in History, vol. 40, 1998.
Since use of another's ideas does not deprive him of its use, no conflict over its use is
possible. Ideas, therefore, are not candidates for property rights. Even Rand acknowledged
In a footnote, the author cites RAND, Patents and Copyrights, page 131. Mises, in Human Action, in page 661, recognizes that there is no need to economize on the employment of formulas, because their serviceableness cannot be exhausted. On page 128, he points out
It's the knowledge of a causal relation implied. The formula, the recipe that teaches us how
to prepare coffee, provided it is known, renders unlimited services. It does not lose anything
from its capacity to produce however often it is used. Its productive power is inexhaustible.
It is therefore not an economic good. Acting man is never faced with a situation in which
Ideas are not naturally scarce. However, by recognizing a right in an ideal object, one creates scarcity where none existed before.
As Arnold Plant explains,
it is a peculiarity of property rights in patents and copyrights
But they do not arise out of the scarcity of the objects which become appropriated.
They are not a consequence of scarcity.
They are the deliberate creation of statute law, and whereas in general the institution
of private property makes for the preservation of scarce goods tending to lead us to make
the most of them, property rights in patents and copyrights make possible the creation
of a scarcity of the products appropriated which could not otherwise be maintained.
Here, the author includes a footnote citing Plant, The Economic Theory Concerning Patents for Inventions, page 36, and also quotes Mises from Human Action, page 364.
Such receipts are, as a rule, free goods, as their ability to produce definite effects is unlimited.
They can become economic goods only if they are monopolized and their use is restricted.
Any price paid for the services rendered by a recipe is always a monopoly price.
It is immaterial whether the restriction of a recipe's use is made possible by institutional conditions,
such as patents and copyright laws, or by the fact that a formula is kept secret and other people fail to guess it.
Buchert also argues that natural scarcity is what gives rise to the need for property rules and that IP laws create an artificial, unjustifiable scarcity.
As he notes, natural scarcity is that which follows from the relationship between man and nature.
Scarcity is natural when it is possible to conceive of it before any human institutional contractual arrangement.
Artificial scarcity, on the other hand, is the outcome of such arrangements.
Artificial scarcity can hardly serve as a justification for the legal framework that causes that scarcity.
Such an argument would be completely circular.
On the contrary, artificial scarcity itself needs a justification.
Thus, Buchert maintains that only naturally scarce entities over which physical control
is possible are candidates for protection by real property rights. For ideal objects,
the only protection possible is that achieved through personal rights, i.e. contract. More
on this below. Here the author inserts a footnote. It could be argued that ideal objects deserve
of Legal Protection as Property because they are Public Goods, that is, because of negative
externalities which arise if IP is not legally protected. However, the concept of Public
Goods is neither coherent nor justifiable. C. Palmer, Intellectual Property, a Non-Posnerian
Law and Economics Approach, pages 279-280 and 283-287, Hans-Hermann Hoppe, Fallacies
Studies of the Public Goods Theory and the Production of Security, Journal of Libertarian
Studies, Volume 9, No. 1, Winter 1989, p. 27. Also Hoppe, The Economics and Ethics of
Private Property, Chapter 1. As Palmer points out, the cost of producing
any service or goods includes not only labour, capital, marketing and other cost components,
but also fencing or exclusion costs as well.
Movie theatres, for example, invest in exclusion devices like ticket windows, walls and ushers,
all designed to exclude non-contributors from enjoyment of service.
Alternatively, of course, movie owners could set up projectors and screens in public parks
and then attempt to prevent passers-by from watching, or they could ask governments to
to force all non-contributors to wear special glasses which prevent them from enjoying the
movie. Drive-ins, faced with the prospect of free riders peering over the walls, installed,
at considerable expense, individual speakers for each car, thus rendering the publicly
available visual part of the movie of little interest. The costs of exclusion are involved
in the production of virtually every good imaginable. There is no compelling justification
for singling out some goods and insisting that the state underwrite their production
costs through some sort of state-sanctioned collective action, simply because of a decision
to make the good available on a non-exclusive basis.
From Palmer, Intellectual Property, a Non-Posnerian Law and Economics Approach, pages 284-285.
There is no way to show that ideas are clearly public goods. Moreover, even if ideas were
For all public goods, this does not justify treating them as property rights, for the same reasons that even wealth-increasing measures are not necessarily justified, as discussed above.
Only tangible, scarce resources are the possible object of interpersonal conflict, so it is only for them that property rules are applicable.
Patents and copyrights are unjustifiable monopolies granted by government legislation.
It is not surprising that, as Palmer notes, monopoly privilege and censorship lie at the
historical root of patent and copyright.
It is this monopoly privilege that creates an artificial scarcity where there was none
before.
Let us recall that IP rights give to pattern creators particular rights of control, ownership,
over the tangible property of everyone else. The pattern creator has partial ownership
of others' property by virtue of his IP right, because he can prohibit them from performing
certain actions with their own property. Author X, for example, can prohibit a third party
and the Why from inscribing a certain pattern of words on Why's own blank pages with Why's own ink.
That is, by merely authoring an original expression of ideas, by merely thinking of and recording some original pattern of information,
or by finding a new way to use his own property, recipe, the IP creator instantly, magically becomes a partial owner of others' property.
As some say over how third parties can use their property, IP rights change the status
quo by redistributing property from individuals of one class, tangible property owners, to
individuals of another, authors and inventors. Prima facie therefore IP law trespasses against
or takes the property of tangible property owners by transferring partial ownership to
to Authors and Inventors. It is this invasion and redistribution of property that must be
justified in order for IP rights to be valid. We see, then, that utilitarian defences do
not do the trick. Further problems with natural rights defences are explored below.
Creation vs. Scarcity
Some inconsistencies and problems with natural rights theories of IP were pointed out above.
This section discusses further problems with such arguments in light of the preceding discussion
of the significance of scarcity.
As noted before, some libertarian IP advocates, such as Rand, hold that creation is the source
of property rights.
This confuses the nature and reasons for property rights, which lie in the undeniable fact of
of Scarcity
Given scarcity and the corresponding possibility of conflict in the use of resources, conflicts
are avoided and peace and cooperation are achieved by allocating property rights to
such resources.
And the purpose of property rights dictates the nature of such rules.
For if the rules allocating property rights are to serve as objective rules that all can
The general rule, then, is that ownership of a given scarce resource can be identified by determining who first occupied it.
There are various ways to possess or occupy resources, and different ways to demonstrate or prove such occupation,
depending upon the situation of the individual.
The general rule, then, is that ownership of a given scarce resource can be identified by determining who first occupied it.
There are many sources and different ways to demonstrate or prove such occupation, depending upon the nature of the resource and the use to which it is put.
Thus, I can pluck an apple from the wild and thereby homestead it, or I can fence in a plot of land for a farm.
It is sometimes said that one form of occupation is forming or creating the thing.
For example, I can sculpt a statue from a block of marble, or forge a sword from raw metal, or even create a farm on a plot of land.
We can see from these examples that creation is relevant to the question of ownership of a given created scarce resource, such as a statue, sword or farm, only to the extent that the act of creation is an act of occupation, or is otherwise evidence of first occupation.
However, creation itself does not justify ownership in things.
It is neither necessary nor sufficient.
One cannot create some possibly disputed scarce resource without first using the raw materials
used to create the item.
But these raw materials are scarce, and either I own them or I do not.
If not, then I do not own the resulting product.
If I own the inputs, then by virtue of such ownership I own the resulting thing into which
Consider the forging of a sword. If I own some raw metal, because I mined it from ground I owned, then I own the same metal after I have shaped it into a sword. I do not need to rely on the fact of creation to own the sword, but only on my ownership of the factors used to make the sword.
Here, in a footnote, the author adds,
I do not need to rely on ownership of my labour, strictly speaking, labour cannot be owned, and labour ownership need not be relied on to show that I maintain ownership of my property as I transform it.
And I do not need creation to come to own the factors, since I can homestead them by simply mining them from the ground, and thereby becoming the first possessor.
On the other hand, if I fashion a sword using your metal, I do not own the resulting sword.
In fact, I may owe you damages for trespass or conversion.
Creation, therefore, is neither necessary nor sufficient to establish ownership.
The focus on creation distracts from the crucial role of first occupation as a property rule
for addressing the fundamental fact of scarcity.
First occupation, not creation or labour, is both necessary and sufficient for the homesteading of unowned scarce resources.
One reason for the undue stress placed on creation as the source of property rights may be the focus by some on labour as the means to homestead unowned resources.
This is manifest in the argument that one homesteads unowned property with which one mixes one's labor, because one owns one's labor.
However, as Palmer correctly points out, occupancy, not labor, is the act by which external things become property.
By focusing on first occupancy rather than on labour as the key to homesteading, there is no need to place creation as the fount of property rights, as objectivists and others do.
Instead, property rights must be recognised in first comers or their contractual transferees in order to avoid the omnipresent problem of conflict over scarce resources.
Creation itself is neither necessary nor sufficient to gain rights in unowned resources. Further, there is no need to maintain the strange view that one owns one's labour in order to own things one first occupies. Labour is a type of action and action is not ownable. Rather, it is the way that some tangible things, e.g. bodies, act in the world.
The problem with the natural rights defense of intellectual property, then, lies in the argument that because an author-inventor creates some thing, he is thus entitled to own it.
The argument begs the question by assuming that the ideal object is ownable in the first place.
Once this is granted, it seems natural that the creator of this piece of property is the natural and proper owner of it.
However, ideal objects are not ownable.
Under the libertarian approach, when there is a scarce, ownable resource, we identify
its owner by determining who its first occupier is.
In the case of created goods, i.e. sculptures, farms, etc., it can sometimes be assumed that
the creator is also the first occupier by virtue of the gathering of raw materials and
and the very act of creating, imposing a pattern on the matter, fashioning it into an artifact and the like.
But it is not creation per se that gives rise to ownership, as pointed out above.
In a footnote, the author expands,
Even such advocates of intellectual property as Rand do not maintain that creation per se is sufficient to give rise to rights,
or that creation is even necessary.
It is not necessary because unowned property can be homesteaded by simply occupying it,
which involves no creation unless one stretches the concept without limit.
It is also not sufficient because Rand would certainly not hold that creating an item using
raw material owned by others gives the thief creator ownership of the item.
Rand's view even implies that rights, including property rights,
only arise when there is a possibility of conflict. Rand, for example, views rights
as a social concept arising only when there is more than one person. See Rand, Man's Rights
in Capitalism, the Unknown Ideal, page 321. A right is a moral principle defining and
sanctioning a man's freedom of action in a social context. Indeed, as Rand argues, man's
Man's rights can be violated only by the use of physical force, i.e. some conflict over
a scarce resource.
The Nature of Government in Capitalism of the Unknown Land, page 330.
On page 334, Rand attempts unsuccessfully to justify government, the agent that enforces
rights, based on the fact that there can be honest disagreements, i.e. conflict, even
and among fully rational and faultlessly moral men.
So in Rand's theory, creation per se is neither necessary nor sufficient, just as in the theory
of property advocated herein.
For similar reasons, the Lockean idea of mixing labour with a scarce resource is relevant only
because it indicates that the user has possessed the property, for property must be possessed
in order to be laboured upon.
It is not because the labour must be rewarded, nor because we own labour and therefore its
fruits. In other words, creation and labour-mixing indicate when one has occupied and thus homesteaded
unknown scarce resources.
It is for these reasons that I disagree with the creation-centred approach of objectivists
David Kelly and Murray Frank. According to Frank, Intellectual and Personality Property,
Page 7 Although property rights help ration scarcity,
scarcity is not the basis of property rights. The view that it is appears to reverse cause
and effect in that it sees rights as a function of society's needs rather than as inherent
in the individual who in turn must live in society. I am not sure what it means to say
that rights, which are relational concepts that only apply in a social contact, are inherent
to In an Individual, or that they are functions of anything.
The former notion verges on the positivistic in implying rights have a source, as if they
could be decreed by God or government, and the latter borders on the scientific in using
the precise mathematical and natural sciences notion of functions.
And the argument for property rights is not based on the need to ration scarce items,
but instead on the needs of individuals to employ means to achieve ends and to avoid
interpersonal conflict over such means. Thus, scarcity is not the basis for property rights,
but a necessary background condition that must obtain before property rights can arise
or make sense. Conflict can only arise over scarce resources, not abundant ones. As pointed
As pointed out in the preceding footnote, objectivism also holds that conflict possibility is just such a necessary condition for property rights.
Moreover, the scarcity-based argument set forth here is no more a function of society's needs than is Frank's objectivist approach.
Frank believes that men need to be able to create things in order to survive, in a social setting where the presence of other men makes disputes possible. Thus, law should protect rights to created things. But the scarcity-based arguments recognizes that men need to be able to use scarce resources and that this requires conflicts to be avoided. Thus, law should allocate property rights in scarce resources. Whatever the relative merits of
of the creation-based and the scarcity-based positions, the scarcity argument is not more
collectivist than the creation one, and the creation argument is not more individualist
than the scarcity argument.
Kelly, in response to Kinsella, page 13, writes,
Property rights are required because man needs to support his life by the use of his reason.
The primary task in this regard is to create values that satisfy human needs, rather than
rather than relying on what we find in nature as animals do.
The essential basis of property rights lies in the phenomenon of creating value.
Scarcity becomes a relevant issue when we consider the use of things in nature, such as land, as inputs to the process of creating value.
As a general rule, I would say that two conditions are required in order to appropriate things in nature and to make them one's property.
First, one must put them to some productive use.
And second, that productive use must require exclusive control over them, i.e. the right
to exclude others.
The second condition holds only when the resource is scarce, but for things that one has created
such as a new product, one's act of creation is the source of the right, regardless of
scarcity.
My reasons for disagreeing with Kelly here should be apparent, but let me point out that
But all human action, including creation of values, has to rely on the use of scarce means,
that is, the material stuff of the world.
Each act of creation employs things made of already existing atoms, neither this fact
nor the recognition of it is animal-like in any pejorative sense.
That men, as opposed to animals, wish to create higher order values by using scarce resources
did not change this analysis.
2. Kelly advocates two separate rules for homesteading scarce resources, by first use
of the resource and by creating a new, useful or artistic pattern with one's own property,
which gives the creator the right to stop all others from using a similar pattern, even
with their own property. As discussed below, these two homesteading rules are in conflict,
and only the former can be justified.
Finally, Kelly states that the creator of a new product owns it because he created it
regardless of scarcity.
If Kelly here means a tangible product such as a mousetrap, such a good is an actual scarce
tangible thing.
Presumably, the creator owned the scarce raw materials which he transformed into the final
and the Final Product. But he does not need to have a right in the ideal object of the
mousetrap idea or pattern in order to own the final product itself. He already owned
the raw materials and still owns them after he reshapes them. If Kelly instead means that
by creating a pattern or idea one acquires the right of control over all other scarce
By focusing on creation and labour, rather than on first occupancy of scarce resources
as the touchstone of property rights, IP advocates are led to place undue stress on the importance
of rewarding the labour of the creator, much as Adam Smith's flawed labour theory of value
led to Marx's even more deeply forward communist views on exploitation.
Here the author adds a footnote, quoting Murray Rothbard, Economic Thought Before Adam Smith,
An Austrian Perspective on the History of Economic Thought, Volume 1,
Brookfield, Vermont, Edward Elgar, 1995, page 453.
It was indeed Adam Smith who was almost solely responsible for the injection into economics
of the Labor Theory of Value, and hence it was Smith who may plausibly be held responsible
for the emergence and the momentous consequences of Marx. Even otherwise sound thinkers sometimes
place undue stress on the importance of labor to the homesteading process and its ability
to be owned. Rothbard himself, for instance, implies that an individual owns his own person
and Therefore His Own Labour, Rothbard, Justice and Property Rights, page 285, emphasis added,
see also Rothbard, The Ethics of Liberty, page 49.
It is a misleading metaphor to speak of owning one's own labour or one's life or ideas.
The right to use or profit from one's labour is only a consequence of being in control
of one's body, just as the right to free speech is only a consequence or a derivative of the
and the right to private property, as Rothbard recognized in the Ethics of Liberty, especially Chapter 15.
As noted above, for Rand, intellectual property rights are, in a sense, the reward for productive work, i.e. labour.
Rand and other natural rights IP proponents seem to adopt a mixed natural rights utilitarian rationale
While in holding that the person who invests time and effort must be rewarded or benefit
from this effort, for example, Rand opposed perpetual patent and copyright on the grounds
that because distant descendants did not create their ancestors' works, they deserve no reward.
In addition, in a strange admixture of natural rights and utilitarian thinking, the natural
The Federal Rights IP approach implies that something is property if it can hold value.
But as Hoppe has trenchantly shown, one cannot have a property right in the value of one's
property, but only in its physical integrity.
Moreover, many arbitrarily defined things can acquire economic value if government grants
a monopoly over the thing's use, even if the thing is not otherwise a scarce resource.
and, for example, the Postal Service's monopoly power to deliver first class letters.
Thus, because ideas are not scarce resources in the sense that physical conflict over their use is possible,
they are not the proper subject of property rights designed to avoid such conflicts.
Two Types of Homesteading
What, though, is really wrong with recognizing new property rights?
After all, since new ideas, artistic creations and innovations continually enrich us, what
is the harm in moving with the times by recognizing new forms of property?
The problem is that if property rights are recognized in non-scarce resources, this necessarily
means that property rights in tangible resources are correspondingly diminished.
This is because the only way to recognize ideal rights in our real, scarce world is
is to allocate rights in tangible goods.
For me to have an effective patent right, a right in an idea or pattern, not in a scarce
resource, means that I have some control over everyone else's scarce resources.
In fact, we can see that IP rights imply a new rule for acquiring rights in scarce resources,
which undercuts the libertarian homesteading principle.
Therefore according to Lockean libertarian homesteading, it is the first occupier of
a previously unknown scarce resource who homesteads it, i.e. becomes its owner. A latecomer who
seizes control of all or part of such owned property is simply a thief, because the property
is already owned. The thief effectively proposes a new and arbitrary homesteading rule to replace
This is the first occupier rule, namely the particularistic rule.
I become the owner of property when I forcibly take it from you.
Of course, such a rule is no rule at all and is clearly inferior to the first possessor
rule.
The thief's rule is particular, not universal.
It is not just and it is certainly not designed to avoid conflicts.
Individuals of intellectual property must also advocate a new homesteading rule to supplement,
if not replace, the first possessor homesteading rule.
They must maintain that there is a second way for an individual to come to own tangible
property.
To wit, the IP advocate must propose some homesteading rule along the following lines.
A person who comes up with some useful or creative idea which can guide or direct an
When an actor in the use of his own tangible property thereby instantly gains a right to control all other tangible property in the world with respect to that property's similar use.
This newfangled homesteading technique is so powerful that it gives the creator rights in third parties already owned tangible property.
For example, by inventing a new technique for digging a well, the inventor can prevent
all others in the world from digging wells in this manner, even on their own property.
To take another example, imagine the time when men lived in caves. One bright guy, let's
call him Galt Mannion, decides to build a log cabin in an open field near his crops.
To be sure, this is a good idea, and others notice it. They naturally imitate gold manion,
and they start building their own cabins. But the first man to invent a house, according
to IP advocates, would have a right to prevent others from building houses on their own land
with their own logs, or to charge them a fee if they do build houses. It is plain that
the innovator in these examples becomes a partial owner of the tangible property, for
for example land and logs of others, due not to first occupation and use of that property,
for it is already owned, but due to his coming up with an idea. Clearly this rule flies in
the face of the first user homesteading rule, arbitrarily and groundlessly overriding the
very homesteading rule that is at the foundation of all property rights. There is, in fact,
There is no reason why merely innovating gives the innovator partial ownership of property
that others already own.
Just because a rule can be proposed does not mean that it is workable or just.
There are many arbitrary rules one could dream up by which property rights could be allocated.
For example, a racist could propose that any white person can homestead any property already
first homesteaded by a black person.
Or, the third occupier of a scarce resource becomes its owner.
Or, the State can homestead all capital goods, even if already first acquired by individuals.
Or, by legislative decree, the State can homestead in the form of taxes part of the estates that are already owned by private individuals.
All such arbitrary homesteading rules, including the IP rule that innovates as homestead partial control of all others' tangible resources, are unjustifiable.
They all conflict with the only justifiable homesteading rule, first occupation.
None of them establish fair, objective rules that avoid interpersonal conflict over scarce resources.
Discussions of protecting rights in ideas, creations or things of value only serves to
obscure the fact that the proponent of IP opposes the unadulterated right to homestead
and own private property.