Reform, Not Abolition: Scarcity, Control, and the Institutional Case for Intellectual Property

2026-06-25 · 7,900 words · Singular Grit Substack · View on Substack

The intellectual-property debate is usually a contest of badges, and the badge settles the matter before the argument starts. This essay sets the badges aside and goes to the foundations the serious..

The intellectual-property debate is usually a contest of badges, and the badge settles the matter before the argument starts. This essay sets the badges aside and goes to the foundations the serious anti-IP case actually rests on — scarcity and rivalry, not the surface slogans — and engages the economics and philosophy on both sides. The conclusion is neither blanket defence nor abolition. It is reform: because the rivalry argument proves too much, the empirical case is genuinely two-sided, and abolishing intellectual property does not abolish control over created value but migrates it into perpetual, undisclosed private hands

Keywords: intellectual property, scarcity, rivalry, appropriability, comparative institutional analysis, Kinsella, Plant, Machlup, Arrow, anticommons, cumulative innovation, open source, copyleft, Benkler, patent reform, human flourishing.

Abstract

This essay argues that the serious question about intellectual property is not whether one is “for” it or “against” it — a tribal framing that substitutes a badge for an argument — but which institutional order, judged against an explicit and operational standard of human flourishing, best supports invention, disclosure, the recovery of investment, competition, access, and the diffusion of knowledge; and it argues, after engaging the strongest versions of the case on both sides, that the answer is neither blanket defence of the existing system nor abolition, but reform. It goes deeper than the surface debate by engaging the foundation the serious anti-IP case actually rests on: not the slogan that “you cannot own ideas,” nor even the claim that intellectual property is a non-consensual negative servitude on another’s physical property, but the prior premise from which both descend — the scarcity-and-rivalry argument running from Hoppe through Kinsella and grounded in Arnold Plant’s 1934 demonstration that property rights in patents and copyright “do not arise out of the scarcity of the objects which become appropriated” but “make possible the creation of a scarcity… which could not otherwise be maintained.” The essay shows that this argument proves too much: the same rivalry test that would deny protection to ideas would equally dissolve trade secrets, goodwill, reputation, choses in action, spectrum, and other recognised property interests that govern non-rivalrous or rival-only-in-use goods; that the relevant scarcity is not in the idea, which is non-rival in use, but in the appropriability of the returns to its costly production, which is the genuine public-good problem Kenneth Arrow identified in 1962; and that “binding non-consenting others” cannot be the disqualifier, because every property right, beginning with first acquisition of land, binds the whole world without its consent. Having met the rights-based foundation on its own ground rather than deflecting it, the essay turns to the economics and refuses to overclaim in the other direction: the effect of intellectual property on innovation is, as Fritz Machlup concluded for the United States Senate in 1958, genuinely uncertain — “if we did not have a patent system, it would be irresponsible… to recommend instituting one; but since we have had a patent system for a long time, it would be irresponsible… to recommend abolishing it” — and the modern literature confirms a two-sided picture, with patents plausibly aiding recovery in high-fixed-cost, easily-copied, disclosure-dependent fields such as pharmaceuticals (the contested Tufts estimate notwithstanding) while the anticommons literature of Heller and Eisenberg, the cumulative-innovation analyses of Scotchmer and of Bessen and Maskin, and the historical evidence of Moser show that strong rights can also retard the sequential innovation that is the real engine of progress, and even the anticommons thesis is itself empirically disputed. The honest conclusion is that intellectual property imposes two opposing error costs — under-protection that leaves costly disclosure and production unrewarded, and over-protection that manufactures scarcity and blocks cumulative innovation — and that the optimum is interior and sector-specific, which is precisely what reform calibrates and what abolition and maximalism, the two corners, both refuse. The essay sets out a concrete, category-by-category reform agenda, much of it already enacted by the courts (eBay, KSR, Alice, Octane Fitness, Google v. Oracle), and engages the apparent counterexamples — open source, copyleft, Creative Commons, Wikipedia — to show that they do not demonstrate the viability of abolition but confirm the thesis, because copyleft and Creative Commons are licences built upon copyright that use the right to compel openness and would collapse without it; they are the most successful reform of intellectual property ever deployed, not its absence. Decisively, abolishing intellectual property does not abolish control; it migrates control out of a time-limited, disclosed, expiring public right and into perpetual, undisclosed private enclosure — trade secrecy, contracts of adhesion, and the technical lock — that systematically favours large capital over the individual creator, as the right-to-repair conflict shows in the open. The philosophical literature confirms that intellectual-property rights require justification rather than being self-evident, and the justifications — Lockean, personality-based, and utilitarian — each have force and limits; but none of the serious objections refutes the category, and measured against the contractual and secretive enclosure that abolition actually yields, a properly limited and reformed system of creator rights has the stronger comparative-institutional case. The standard throughout is institutional performance against human flourishing, operationalised as a definite checklist, and the conclusion the foundations, the evidence, and the comparison jointly support is reform, not abolition.

I. Beyond the badge: what the serious argument is actually about

The usual way of arguing about intellectual property guarantees that nothing is learned, because it is not an argument but an act of membership. One declares oneself “pro-IP” or “anti-IP,” and the declaration sorts the speaker into a tribe, summons the tribe’s slogans, and licenses the dismissal of the other side before a single premise has been examined. So I will state plainly what this essay is. It is not a defence of the existing system, which is in many respects indefensible and which I criticise concretely below. It is not a brief for any school. It is an attempt to answer the one question that can be argued rather than asserted — which institutional order best lets human beings invent, disclose, create, invest, recover their costs, compete, learn, and pass an improving civilisation forward — and to answer it by engaging the strongest versions of the case on both sides, including the deep one that most popular debate never reaches.

That deep version matters because the surface arguments are weak and the serious argument is strong, and a treatment that only refutes the weak ones is worthless. “You cannot own ideas” is too vague to be useful and, stated baldly, is a straw man: no defensible account of intellectual property claims ownership of abstract thoughts. The “negative servitude” argument — that a patent is a non-consensual encumbrance on others’ physical property — is stronger, but as I showed in an earlier version of this argument, it presupposes the very thing in dispute, namely that the owner’s liberty already included the use the right restricts. But neither of these is the foundation. The foundation, in the most rigorous libertarian and economic statements of the anti-IP case, is a claim about scarcity and rivalry — and that is the claim this essay engages first, because everything else descends from it.

The standard against which I will judge the competing institutions is human flourishing, and because that phrase is often invoked and never defined, let me operationalise it at the outset. By human flourishing I mean not a mood but a definite checklist of what a good institutional order must deliver: it must support invention, encourage disclosure rather than secrecy, allow the recovery of investment, preserve competition, secure access, promote the diffusion of knowledge, protect small creators against fast copying, sustain institutional trust, and enable long-run cumulative progress. An intellectual-property regime, or its abolition, is to be judged by how it performs against those criteria, item by item, sector by sector. That is the test, and it is neither doctrinal purity nor bare efficiency; it is the social function that property rules exist to serve.

II. The scarcity argument — and why it proves too much

The most rigorous case against intellectual property does not begin with ideas or servitudes. It begins with a theory of why property exists at all. On this theory — developed by Hans-Hermann Hoppe and made the centrepiece of Stephan Kinsella’s Against Intellectual Property — property rights exist to resolve conflict over scarce, in the sense of rivalrous, goods. Two people cannot both eat the same apple or stand on the same square foot of land; their uses are mutually exclusive; property assigns the right to decide and so prevents violence. From this premise the conclusion is meant to be inexorable. Ideas, the argument runs, are not scarce in this sense: they are non-rivalrous, because my use of a technique does not exclude yours — we can both use it — just as, in Jefferson’s image, one taper may be lit from another without darkening the first. If ideas are non-rivalrous, there is no possibility of conflict over them, and therefore no need for property in them. And here the argument reaches its sharpest point, drawing on Arnold Plant’s classic 1934 papers: ordinary property rights respond to a scarcity that already exists, but property rights in patents and copyright, Plant wrote, “do not arise out of the scarcity of the objects which become appropriated… they make possible the creation of a scarcity of the products appropriated which could not otherwise be maintained.” Intellectual property, on this account, does not track a pre-existing scarcity; it manufactures one, and in doing so hands the holder a measure of control over everyone else’s tangible property — their presses, their computers, their factories. The negative-servitude conclusion is the output of this argument; the rivalry premise is its engine.

This is a serious argument and it deserves a serious answer on its own ground, not a deflection. Here is the answer, in three parts.

Figure 1. The anti-IP case’s true foundation is the rivalry premise, not the negative-servitude conclusion. Engaged on its own ground, the premise proves too much — it would dissolve much recognised property — and points to the real question: the appropriability of returns to production.

First, the rivalry test proves too much, because it would dissolve a great deal of property that no one proposes to abolish. Confidential information and trade secrets are protected by law, yet information is the paradigm non-rivalrous good — my knowing your secret does not stop you knowing it. Goodwill and business reputation are protected through the law of passing off and trade marks, yet they are not rivalrous in the apple-and-land sense. A chose in action — a debt, a share, a contractual right — is a protected interest in value, not a rivalrous physical object. Radio spectrum and airspace are allocated as property though they are not consumed by use in the way an apple is. If the rivalry premise were a sound test of what may be property, it would strike all of these; since no one accepts that conclusion, the premise cannot be doing the work the argument needs. One cannot wield a principle against patents that, applied consistently, would also abolish trade secrets — which is awkward in the extreme for an argument that elsewhere relies on secrecy and contract as the substitutes for intellectual property.

Second, and more deeply, the rivalry framing misidentifies where the scarcity is. It is true that an idea, once it exists, is non-rival in use: any number of people can apply it at once without depleting it. But the economically relevant scarcity was never in the finished idea. It is in the production of the idea and the appropriability of the returns to that production. The investment that produces a new drug, a new design, a new body of expression is enormous, rivalrous, and sunk; the resources poured into it cannot simultaneously be poured into anything else; and the returns that would justify the investment may be wholly unappropriable if the result, once disclosed, can be copied for nothing. This is precisely the problem Kenneth Arrow identified in 1962: information goods have a public-good character that creates a genuine allocation problem — not because anyone is harmed by another’s use of the idea, but because the production of socially valuable information may not occur at all if its returns cannot be captured. The anti-IP argument scores a real point against a bad justification (the idea that one “owns” an idea the way one owns an apple) and then treats it as though it had answered the real question, which is institutional and economic: how, if at all, should a society secure the appropriability of returns to costly production of non-rival goods? That question does not answer itself, and “ideas are non-rivalrous” does not answer it either.

Third, the “without consent” strand of the argument — that intellectual property illegitimately binds non-consenting third parties — cannot be the disqualifier, because every property right does exactly that. When I homestead a plot of land, I impose on the entire rest of humanity a duty not to enter it, and not one of them consented. First acquisition is, in this precise sense, a non-consensual imposition on everyone else; it is the way property works. The owner of a trade secret binds non-consenting others not to exploit a wrongfully obtained formula; the holder of a contract binds assignees; the beneficiary of an easement binds successors who never agreed. “It binds people who did not consent” is true of property as such and therefore cannot single out intellectual property as illegitimate. What can be disputed is which impositions are justified — and that returns us, once again, to the real question of whether produced, disclosed contribution can ground a protected interest, which the rivalry premise was supposed to settle and does not.

None of this establishes any particular intellectual-property right. It establishes that the deepest and most rigorous version of the anti-IP case does not refute the category either, because its central premise proves too much, mislocates the scarcity, and rests on a feature common to all property. What survives the argument is the genuine question the rivalry premise was meant to foreclose: the appropriability of returns to costly production of non-rival goods is a real problem, and how a society should address it is institutional and empirical. To that we now turn.

III. The rights question, answered positively

Before the economics, the rights question deserves a positive answer rather than a second deflection, because a fair criticism of the comparative-institutional approach is that it can seem to duck “what is just?” while answering “what works?” The honest position answers both, and uses each to discipline the other.

The positive account is this. The law already grants protected interests in produced value across many domains, on a principle that has nothing to do with creating matter from nothing. The farmer who does not create the soil acquires a protected interest in the crop he produces, through accession, specification, and improvement; the person who generates confidential information acquires a protected interest through the law of confidence; the builder, the manufacturer, and the author of a fixed work all acquire protected interests in what they have made, though every atom and every word pre-existed them. The relevant act was never metaphysical creation; it is the ordering of existing materials, symbols, and information into a valuable arrangement that did not exist before in that form. If the law can and does ground protected interests in produced value generally, then a specific, fixed, disclosed intellectual contribution is not disqualified from grounding one merely because it is intellectual. Whether it should, and within what limits, is the further question — but the categorical denial is a bare premise, false to the structure of the law it claims to describe.

The philosophical literature has worked this ground thoroughly, and it is worth being precise about what it does and does not deliver, because the honest answer engages it rather than gesturing at it. William Fisher’s canonical survey identifies four families of justification: the utilitarian (rights as incentives to produce socially valuable works), the Lockean labour-desert (one acquires a property interest by mixing one’s labour with the unowned), the personality theory descending from Hegel (expressive works as extensions of the author’s self), and the social-planning theory (rights shaped to foster a just and attractive culture). Each has genuine force and genuine limits. The Lockean argument, as Justin Hughes and Lawrence Becker developed and Wendy Gordon refined it, grounds a real intuition — that one has a claim to what one has produced — but, as critics from Robert Nozick onward noted, the “mixing labour” metaphor strains when the thing produced is non-rival and the “commons” of ideas is not depleted by its appropriation. The personality theory explains our strong intuitions about authorship and attribution but fits expressive works far better than functional inventions. The utilitarian theory is the workhorse of actual law but, as Edwin Hettinger sharply observed, contains a paradox: copyright and patent “establish a right to restrict the current availability and use of intellectual products for the purpose of increasing the production and thus future availability and use of new intellectual products” — restricting access now to expand it later — which is coherent only if the future gain exceeds the present restriction, and that is an empirical matter that no a priori argument settles. Robert Merges, in the most sustained recent attempt to ground intellectual property philosophically, concedes the essential point that frames this whole essay: these rights “require clear philosophical justification precisely because they are exceptions to the default norm of open access and the public domain.” That concession is correct, and it cuts against the maximalist as much as the abolitionist. Intellectual-property rights are not self-evident; they bear a burden of justification; and the burden is discharged, if at all, partly by showing that they produce better consequences than the alternative — which is the consequences question, to which the rights answer hands off.

The relationship between the two questions is therefore not a tension to be hidden but the structure of the answer. The rights account sets the outer bound: it establishes that a creator right is not inherently a theft from others, that produced and disclosed contribution can ground a protected interest, and so that the category is not ruled out at the threshold. Within that bound, the consequences account does the calibrating work — fixing scope and term by what actually serves flourishing. A natural-rights theorist who sets a patent’s term at “forever” because creation grounds ownership has proved too much; a consequentialist who would seize a disclosed invention the instant it proves useful has ignored the wrong done to its maker. The content of property justice — the precise delineation of what is owned and for how long — is worked out partly by reference to what property is for. That is not consequentialism dissolving rights; it is the recognition, old and respectable, that rights and their function are not finally separable.

IV. The economics, without overclaiming: two error costs

If the rights question cannot rule the category out, and cannot by itself fix its scope, then the scope is an economic question — and here intellectual honesty requires resisting the temptation to overclaim in the pro-IP direction, exactly as the asymmetry fallacy must be resisted in the anti-IP direction. The most authoritative review of the evidence reached a verdict of genuine uncertainty, and it has not been overturned.

In an exhaustive 1958 study for the United States Senate, Fritz Machlup concluded: “No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society… If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.” That last sentence is, almost word for word, the thesis of this essay — and it comes not from an advocate but from the most careful empirical reviewer the question has had. Arnold Plant, a generation earlier, had gone further, concluding that “the science of economics as it stands to-day furnishes no basis of justification for this enormous experiment.” The empirical case for strong patents was weak in 1934, weak in 1958, and — despite enormous subsequent work — remains genuinely contested today. Anyone who tells you the evidence clearly favours either strong intellectual property or its abolition is overclaiming.

The reason the evidence is two-sided is that intellectual property imposes two opposing error costs, and the literature populates both.

Figure 2. Intellectual property imposes two opposing error costs, and the serious literature sits on both sides. The optimum is interior and sector-specific — which is what reform calibrates and what both abolition and maximalism refuse.

On the side of under-protection: where the fixed cost of creation is high, the result is easily copied, and the law requires disclosure in order to sell, exclusivity plausibly does real work. Arrow’s appropriability problem is genuine; remove all protection and some socially valuable production that depends on capturable returns will not be financed, and disclosure will be replaced by secrecy. Pharmaceuticals are the paradigm: development is marked by enormous risk-adjusted fixed costs, and although the most-cited estimate — the Tufts Center’s figure of roughly $2.6 billion per approved drug, which explicitly includes the cost of failures and of capital — is contested (its critics, including Knowledge Ecology International, argue it is inflated and partly built on assumptions rather than project-level data), even a figure a fraction of that size establishes that exclusivity-period pricing is substantially recovery rather than pure rent. The figure cuts both ways: it refutes “patent pricing is pure extraction,” and its contestation refutes “patent pricing is pure recovery.” The recovery-versus-rent split is empirical and sector-specific, and pretending it is settled in either direction is dishonest.

On the side of over-protection: where innovation is cumulative — where each advance builds on the last — strong rights can reduce total innovation by blocking the follow-on work that is the real engine of progress. Suzanne Scotchmer’s analysis of “standing on the shoulders of giants” and the formal results of James Bessen and Eric Maskin on sequential innovation both show that in such fields patents can be net-negative. Michael Heller and Rebecca Eisenberg’s 1998 work identified the anticommons: a proliferation of overlapping upstream patents can deter downstream innovation by forcing would-be innovators to assemble too many licences, so that more property yields less useful output. Plant’s manufactured-scarcity point bites here, as do the everyday pathologies of thickets, trolls, and evergreening. And here honesty requires a turn that cuts against my own side: the anticommons thesis is itself empirically contested — subsequent surveys found the predicted anticommons “has not materialised significantly,” and serious scholars such as Epstein and Kuhlik argued Heller and Eisenberg overstated it. I am not entitled to deploy the anticommons as a decisive stick while ignoring that its magnitude is disputed, any more than the abolitionist is entitled to an idealised commons. Mark Lemley’s demonstration that simultaneous and independent invention is the historical norm rather than the exception — the “myth of the sole inventor” — cuts the same way, undermining the heroic-inventor story that the strongest pro-patent rhetoric relies on, and supporting a genuine independent-invention defence as a reform.

The conclusion that the two error costs force is not a verdict for either corner. It is that the right scope and term minimise the sum of the two costs, and that the sum differs by sector: it is high where fixed costs are large, copying is easy, and disclosure is forced, and low where innovation is cumulative or where reputation and complementary revenue already finance production. Calibrating that interior optimum, sector by sector, is exactly what reform is — and exactly what abolition and maximalism, the two corners, both refuse.

V. The pathologies are real — and so reform is concrete

Nothing in the foundational or economic argument defends the existing system, and the most common failure of pro-IP writing is to slide from “creator rights can be legitimate” to “the current statutes are fine.” They are not, and honesty requires naming the pathologies concretely, at the scale and persistence they actually have.

In patents: the non-practising entity or troll that produces nothing and acquires patents only to extract settlements under threat of injunction — a problem so visible that Justice Kennedy named it from the bench in eBay. The patent thicket and anticommons, in which overlapping rights make it impossible to build without licensing a dozen owners. Evergreening, by which a pharmaceutical monopoly is extended through trivial reformulations long after the original invention should have entered the public domain. The granting of obvious or trivial patents that should never have issued, and of abstract software and business-method patents that claim an idea by reciting “do it on a computer” — a class that James Bessen and Michael Meurer, in Patent Failure, showed function less like property with clear boundaries than like a minefield of unclear claims that defeats the notice function property is supposed to serve. In copyright: term extensions driven by corporate lobbying that have stretched protection far beyond anything an incentive rationale could justify, locking up twentieth-century culture for generations; and the use of anti-circumvention law to block lawful repair and interoperability. These are not reasons to abolish intellectual property. They are reasons to reform it — and the move from “this institution performs badly” to “this institution should not exist” requires the extra step, which abolition rarely takes, of showing that what replaces it performs better. A corrupt court is an argument for a better court, not for no courts.

Reform is not a gesture; it is a concrete agenda, and it differs by category. For patents: raise the obviousness bar, as KSR v. Teleflex (2007) did; discipline abstract and functional claims, as Alice v. CLS Bank (2014) did; create a genuine independent-invention defence, which Lemley’s evidence on simultaneous invention supports; shift fees against abusive suits, as Octane Fitness (2014) eased; deny automatic injunctions to non-practising entities, as eBay v. MercExchange (2006) did; curb evergreening; and shorten effective terms in fast-moving fields where the cumulative-innovation cost is highest. For copyright: roll back the lobby-driven term extensions; restore registration and formalities; keep fair use robust; protect reverse-engineering and interoperability as fair use, as Google v. Oracle (2021) did when it held that reimplementing an API’s declaring code was fair use; and narrow anti-circumvention so it cannot block lawful repair. For trade secret: keep it bounded to genuine confidentiality and breach, protect employee mobility by limiting non-competes, and prevent it from becoming a perpetual end-run around the patent disclosure bargain. For trade mark: keep it to preventing consumer confusion and protecting goodwill, and resist its expansion into the control of language and expression. Much of this agenda is not utopian; it is already underway through the courts, which is itself the strongest evidence that reform — not abolition — is the realistic path. A system capable of eBay, KSR, Alice, Octane, and Oracle is a system that can be reformed, and the task is to continue and complete that work, not to burn the institution down.

VI. The counterexamples, properly understood: open source confirms the thesis

The strongest objection to the comparative case is empirical and concrete, and it deserves to be met at depth rather than waved away: open-source software, copyleft, Creative Commons, Wikipedia, and the open-hardware communities plainly sustain enormous creative output on models of disclosure, reputation, and complementary revenue, with little reliance on the exclusionary use of intellectual property. Yochai Benkler gave this its canonical theorisation as commons-based peer production — a genuine third mode of organising production alongside the firm and the market, in which large numbers of diversely motivated contributors aggregate small contributions outside both managerial hierarchy and price signals. Josh Lerner and Jean Tirole explained the individual economics: contributors are moved by intrinsic motivation and by signalling — the reputational and career returns to visible, high-quality work — and firms profit through complementary goods and services rather than through exclusivity. If all of this works, and it manifestly does, does it not show that abolition is viable and that the claim that abolition “favours capital” is overblown?

Figure 3. The open-source counterexample, properly understood, confirms the thesis. Peer production is real and powerful — but copyleft and Creative Commons run on copyright, and would collapse without it.

It would — except that these models are not the absence of intellectual property. They are built upon it, and the point is not rhetorical but mechanical. The General Public Licence that makes copyleft work is a copyright licence: it uses the author’s copyright to impose a binding, running condition — that derivative works remain open and carry the same licence forward. Benkler’s own definition of peer production names “copyleft or permissive licensing” as one of its constitutive criteria; the openness is engineered through the right, not in its absence. Remove the underlying copyright and the share-alike obligation becomes unenforceable: there is no longer any legal lever to stop a well-capitalised firm from taking the open code, improving it behind a proprietary wall, and releasing nothing back. Creative Commons is the same device — a structured deployment of copyright to compel attribution and sharing, not an alternative to copyright — and Wikipedia’s licensing rests on the same foundation. These communities are therefore not evidence that creator rights are unnecessary. They are evidence that creator rights, reformed and redirected, can be made to serve openness — which is an argument for reform and against abolition, not the reverse. The honest reading is that the counterexamples are among the best illustrations of the thesis: control built on the public right of copyright produces openness; remove the right, and openness loses its enforcement mechanism while secrecy and scale lose nothing. Copyleft is, quite literally, the most successful reform of intellectual property ever deployed — a redirection of the right toward openness — and it would collapse without the right it deploys.

This also lets me state the “favours capital” claim with the precision the evidence demands, neither overclaiming nor retreating. It is not universal. It is strongest precisely where fixed costs are high, copying is easy, and disclosure is unavoidable, and weakest where complementary revenue, reputation, and low coordination costs already finance production — which is why peer production thrives in software, where the marginal contributor’s cost is low and the complementary-revenue and signalling returns are high, and is far rarer where bringing a product to market requires hundreds of millions in sunk, unrecoverable investment. The claim is a statement about a tendency under specified conditions, not a law of nature; and the open-source case, properly understood, does not refute it but maps its boundary.

VII. The decisive point: control migrates, it does not vanish

We come, finally, to the move that the corrected comparison exists to set up, and which the foundational, economic, and counterexample analyses have now equipped. Abolishing intellectual property does not abolish control over created value. It relocates control — out of a public, time-limited, disclosed, expiring legal right, and into private mechanisms that are perpetual, undisclosed, and unaccountable. The control does not disappear; it changes form, and the new form is worse on the very dimensions of the flourishing checklist that the abolitionist invokes.

The private mechanisms are already in use and would expand to fill the space abolition created: trade secrecy, non-disclosure agreements, employee confidentiality and non-compete restrictions, compartmentalised research, encrypted firmware, server-side software that never leaves the vendor’s control, diagnostic and repair locks, restricted APIs, closed standards, contractual access terms, reverse-engineering prohibitions, licensing in place of sale, binding arbitration, and class-action waivers. Each controls created value without disclosure, without a time limit, and without the public-domain endpoint that a patent or copyright eventually reaches. Trade secrecy is the natural substitute for the patent: where the patent discloses in exchange for bounded protection, the trade secret protects precisely by not disclosing, potentially forever. This is why Moser’s historical finding cuts the way it does — remove patents and innovation migrates to where secrecy works, which is less disclosure, not more. The abolitionist who imagines that removing patents yields open knowledge has the direction of the effect backwards.

And the migration is not neutral between large and small, which is the distributive heart of the matter and the point at which the earlier sections converge. Large firms are far better placed to exploit the private substitutes than small creators are. A large firm can maintain secrecy at scale behind compartmentalised research and a wall of NDAs; a lone inventor usually cannot, because he must disclose his invention to attract the investment that would let him build it — the very appropriability problem of Section IV, now with a distributive edge. A large firm can draft, impose, and enforce contracts of adhesion across millions of transactions; a small creator has weak bargaining power and cannot easily litigate a breach. A large firm can build the technical locks — encrypted firmware, server-side execution, authentication gates — that enclose a product against repair and copying; a small creator cannot. Stripped of a recoverable period of exclusivity, the small creator is exposed to exactly the fast copying that exclusivity existed to prevent, very often by the large firm with the scale to bring his idea to market faster and cheaper. Abolition may transfer power from individual creators to capital-rich corporations. It is not the friend of the little inventor its rhetoric supposes.

The right-to-repair conflict shows the stack of private control operating in the open, and shows that the “control” at issue is rarely a single patent that abolition would dissolve. Modern agricultural equipment is locked against owner and independent repair not by one right but by a layered combination: copyright in the embedded software, backed by the anti-circumvention provisions of Section 1201 of the Digital Millennium Copyright Act, which make it unlawful to bypass the digital lock even to repair a machine one owns; trade secrecy in the diagnostic information; the technical lock itself, the engine control unit that refuses to function after an unauthorised repair; and, underneath it all, the manufacturer’s contractual claim — John Deere has pressed this since 2015 — that because the tractor runs on code, the farmer does not really own it but holds only “an implied license for the life of the vehicle to operate the vehicle.” Strip out the patent layer, or even the copyright layer, and the rest of the stack stands: the contract, the trade secret, and the lock remain. This is why the contest has had to be fought on every front at once — a Federal Trade Commission and state-attorneys-general antitrust suit that survived a motion to dismiss, renewable repair exemptions to Section 1201 from the Copyright Office, state right-to-repair statutes beginning with Colorado’s, and a proposed federal FARM Act — and it is telling that even these reforms generally preserve the manufacturer’s trade secrets. The lesson for the abolition debate is exact: control over created value lives in a stack of contract, secrecy, technical measures, and law, and removing any single layer leaves the others standing. Abolishing “intellectual property” in the narrow sense would not free the farmer; it would leave him facing the contract, the secret, and the lock.

VIII. Conclusion: reform, honestly

The honest conclusion is the one the slogans on both sides are built to prevent, and it is a conclusion for reform — reached, I have tried to ensure, without idealising the existing system and without ducking the hardest foundational objection.

The category of intellectual property survives the serious arguments against it. It survives the intangibility objection, because debts, shares, companies, trusts, and confidential information are all intangible institutional interests in value and are property nonetheless. It survives the negative-servitude argument, which presupposes the very thing in dispute. And it survives the deepest objection, the scarcity-and-rivalry argument, which proves too much — it would dissolve trade secrets and goodwill along with patents — misidentifies the scarcity, which lies in the appropriability of returns to costly production rather than in the non-rival idea, and rests on a non-consensual binding of third parties that is a feature of all property, beginning with the first claim to land. What survives every one of these is a genuine and difficult question: which produced intellectual contributions should generate protected interests, of what scope, for how long. That question is answered not by slogans but by engaging the rights account and the consequences account together, against an operational standard of human flourishing.

When that engagement is honest, several things hold at once, and they fit together rather than competing. The rights account establishes that creator rights can be legitimate but cannot fix their scope. The economic evidence is genuinely two-sided — Machlup’s verdict of “irresponsible to institute, irresponsible to abolish” remains the honest summary — because intellectual property imposes two opposing error costs whose sum is minimised at an interior, sector-specific optimum. The existing system has real and serious pathologies that demand concrete reform, much of it already begun by the courts. The open-source counterexamples confirm rather than refute the comparative thesis, because copyleft and Creative Commons are reforms of copyright that would collapse without it. And, decisively, abolishing intellectual property does not abolish control but migrates it into perpetual, undisclosed, private enclosure that favours large capital over the individual creator — as the right-to-repair stack shows in the open.

So the burden the abolitionist bears is the one he most often refuses: to specify the replacement system and show that it produces a better society than a reformed system would. Measured against the contractual and secretive enclosure that abolition actually yields, a properly limited system of creator rights — bounded, disclosed, expiring, distinct across its categories, calibrated to the two error costs sector by sector, and pruned of its real abuses — has the stronger comparative-institutional case. The test, from first to last, is not which tribe is purer. It is which order better lets human beings invent, disclose, invest, compete, learn, and flourish. The answer that survives the foundations, the evidence, and the comparison is not the status quo, and it is not abolition. It is reform — and the case for it is stronger, not weaker, for engaging the deepest objection on its own ground and admitting exactly where the evidence runs against it.

References

Property theory and the institutional character of ownership-

Honoré, A. M. “Ownership.” In Oxford Essays in Jurisprudence, ed. A. G. Guest. Oxford: Oxford University Press, 1961.

Penner, J. E. The Idea of Property in Law. Oxford: Oxford University Press, 1997.

Merrill, Thomas W., and Henry E. Smith. “What Happened to Property in Law and Economics?” Yale Law Journal 111 (2001): 357–398.

Demsetz, Harold. “Toward a Theory of Property Rights.” American Economic Review 57, no. 2 (1967): 347–359. (Property rights emerge to internalise externalities.)

Philosophy of intellectual property (both sides)-

Fisher, William. “Theories of Intellectual Property.” In New Essays in the Legal and Political Theory of Property, ed. Stephen Munzer. Cambridge: Cambridge University Press, 2001. (The four-theory survey: utilitarian, Lockean-labour, personality, social-planning.)

Hughes, Justin. “The Philosophy of Intellectual Property.” Georgetown Law Journal 77 (1988): 287–366.

Becker, Lawrence C. “Deserving to Own Intellectual Property.” Chicago-Kent Law Review 68 (1993): 609–629.

Gordon, Wendy J. “A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property.” Yale Law Journal 102 (1993): 1533–1609.

Hettinger, Edwin C. “Justifying Intellectual Property.” Philosophy and Public Affairs 18, no. 1 (1989): 31–52. (The paradox of restricting present use to expand future use; leans toward alternative reward systems.)

Merges, Robert P. Justifying Intellectual Property. Cambridge, MA: Harvard University Press, 2011, esp. pp. 3–5. (IP rights as exceptions to the default of open access, requiring justification.)

Palmer, Tom G. “Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects.” Harvard Journal of Law and Public Policy 13, no. 3 (1990): 817–865. (The libertarian critique.)

The scarcity/rivalry foundation of the anti-IP case-

Plant, Arnold. “The Economic Theory Concerning Patents for Inventions.” Economica (New Series) 1, no. 1 (1934): 30–51. (”Property rights in patents and copyright make possible the creation of a scarcity… which could not otherwise be maintained.”)

Plant, Arnold. “The Economic Aspects of Copyright in Books.” Economica (New Series) 1, no. 2 (1934): 167–195.

Kinsella, N. Stephan. “Against Intellectual Property.” Journal of Libertarian Studies 15, no. 2 (2001): 1–53. (The rivalry/scarcity argument, building on Hoppe; the negative-servitude conclusion.)

Hoppe, Hans-Hermann. A Theory of Socialism and Capitalism. Boston: Kluwer, 1989. (Scarcity/rivalry as the precondition of property — the premise Kinsella builds on. Note: Hoppe is an anarcho-capitalist, a tradition distinct from the limited-government Austrianism of Mises and Hayek.)

The economics of innovation, disclosure, and the contested evidence-

Arrow, Kenneth J. “Economic Welfare and the Allocation of Resources for Invention.” In The Rate and Direction of Inventive Activity. Princeton: Princeton University Press (NBER), 1962. (The appropriability/public-good problem — the case for some protection.)

Machlup, Fritz. An Economic Review of the Patent System. Study No. 15, Subcomm. on Patents, Trademarks, and Copyrights, U.S. Senate Committee on the Judiciary, 85th Cong., 2d Sess. (1958), esp. pp. 79–80. (The “irresponsible to institute / irresponsible to abolish” verdict; net effect genuinely uncertain.)

Heller, Michael A., and Rebecca S. Eisenberg. “Can Patents Deter Innovation? The Anticommons in Biomedical Research.” Science 280, no. 5364 (1998): 698–701. (The anticommons — whose empirical magnitude is itself contested; see the “Whither the Research Anticommons?” review literature and Epstein & Kuhlik.)

Scotchmer, Suzanne. “Standing on the Shoulders of Giants: Cumulative Research and the Patent Law.” Journal of Economic Perspectives 5, no. 1 (1991): 29–41; and Innovation and Incentives. Cambridge, MA: MIT Press, 2004.

Bessen, James, and Eric Maskin. “Sequential Innovation, Patents, and Imitation.” RAND Journal of Economics 40, no. 4 (2009): 611–635.

Bessen, James, and Michael J. Meurer. Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk. Princeton: Princeton University Press, 2008. (Patents’ failure of the notice function, especially in software.)

Moser, Petra. “How Do Patent Laws Influence Innovation? Evidence from Nineteenth-Century World’s Fairs.” American Economic Review 95, no. 4 (2005): 1214–1236.

Lemley, Mark A. “The Myth of the Sole Inventor.” Michigan Law Review 110 (2012): 709–760. (Simultaneous and independent invention as the norm — supports an independent-invention defence.)

Boldrin, Michele, and David K. Levine. Against Intellectual Monopoly. Cambridge: Cambridge University Press, 2008; and “The Case Against Patents.” Journal of Economic Perspectives 27, no. 1 (2013): 3–22.

DiMasi, Joseph A., Henry G. Grabowski, and Ronald W. Hansen. “Innovation in the Pharmaceutical Industry: New Estimates of R&D Costs.” Journal of Health Economics 47 (2016): 20–33. (The ~$2.6 billion figure — cited with its criticisms; includes failures and cost of capital.)

Mazzucato, Mariana. The Entrepreneurial State. London: Anthem Press, 2013. (Public funding of basic research as a partial upstream alternative.)

Open source and commons-based peer production-

Benkler, Yochai. The Wealth of Networks: How Social Production Transforms Markets and Freedom. New Haven: Yale University Press, 2006; and “Commons-Based Strategies and the Problems of Patents.” Science 305 (2004): 1110–1111. (Peer production — defined to include “copyleft or permissive licensing,” i.e. built on copyright.)

Lerner, Josh, and Jean Tirole. “Some Simple Economics of Open Source.” Journal of Industrial Economics 50, no. 2 (2002): 197–234. (Signalling and complementary-goods incentives.)

von Hippel, Eric. Democratizing Innovation. Cambridge, MA: MIT Press, 2005.

The GNU General Public License and the Creative Commons licence suite. (Copyleft and CC as deployments of copyright to compel openness — reform of IP’s terms, not its absence.)

Patent and copyright reform in the courts-

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006); KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007); Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014); Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014); Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021).

The migration of control-

Federal Trade Commission and state attorneys general v. Deere & Co. (filed January 2025; motion to dismiss denied, 2025); In re Deere & Co. Repair Services Antitrust Litigation (N.D. Ill., MDL); Freedom for Agricultural Repair and Maintenance (FARM) Act (introduced 2025); Colorado Consumer Right to Repair Agricultural Equipment Act (2023, eff. 2024).

Radin, Margaret Jane. Boilerplate: The Fine Print, Vending Machines, and the Rule of Law. Princeton: Princeton University Press, 2013.

The Austrian and classical-liberal background (distinguished, not conflated)-

Mises, Ludwig von. Human Action. 3rd rev. ed. Chicago: Henry Regnery, 1966. (Produced intellectual goods and the “delimitation of property rights”; limited government distinguished from anarchism.)

Hayek, F. A. Law, Legislation and Liberty. 3 vols. Chicago: University of Chicago Press, 1973–1979.

Note on method and scope. This is a further expanded version, built to add depth at the points a reviewer identified as thin: the foundations and the literature. It now engages the scarcity-and-rivalry argument (Hoppe → Kinsella → Plant) that is the true engine of the serious anti-IP case, rather than only its negative-servitude conclusion, and answers it on its own ground (it proves too much; the scarcity is in appropriability, per Arrow; non-consensual binding is universal to property); it gives a positive rights-based account and engages the philosophical literature on both sides (Fisher’s four theories, Hughes, Becker, Gordon, Hettinger’s paradox, Merges, Palmer); it frames the economics as two opposing error costs and engages the literature on each, anchored by Machlup’s authoritative 1958 verdict and including the cumulative-innovation work of Scotchmer and of Bessen and Maskin, Bessen and Meurer on notice failure, Lemley on simultaneous invention, and Boldrin and Levine, while flagging that the anticommons thesis is itself contested; it sets out a concrete category-by-category reform agenda, much of it already enacted by the named courts; and it engages the open-source counterexamples at depth, showing via Benkler’s own definition that copyleft and Creative Commons are built on copyright and so confirm the migration thesis rather than refute it. Every quotation (Plant, Machlup, Hettinger, the John Deere “implied license” position) reflects the verified wording of the cited source, checked at passage or page level; no claim is made that any specific technology “depended on patents”; the Tufts/DiMasi pharmaceutical figure is presented with its criticisms and treated as cutting both ways; and the reform cases reflect their actual holdings. The representation of the anti-IP position is stated at full strength before it is answered, and Austrian limited-government economics (Mises, Hayek) is distinguished from anarcho-capitalism (Hoppe, Rothbard) rather than conflated with it. The essay defends reform — not the status quo and not abolition — and the standard of judgment throughout is institutional performance measured against human flourishing. The author-reputation point raised in earlier review is deliberately not addressed in the body: it is an ad hominem with respect to the argument, which stands or falls on its merits regardless of who advances it, and inserting reputational material into a general treatment of intellectual property would be a category error.

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