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Kinsella on Liberty Podcast: Episode 497.

Yesterday (Sep. 5, 2026) I participated in the debate: “Should Free Cities Protect Intellectual Property?” with IP attorney Brian O’Beirne, moderated by Tipolis CFO Alex VossTopic, held at the Free Cities Foundation annual Conference, Próspera, Honduras, Sept. 4–7 (Sat. Sept. 5, 2026) (SK profile; O’Beirne profile) (see Free Cities Foundation Annual Conference — Próspera 2026).

I spoke for 4 minutes, then Brian, and then we had an exchange and audience questions for the remaining time. It was very civil unlike some other debates I’ve participated in. ¹ Transcript and shownotes below.

Related/mentioned

• “Conversation with an author about copyright and publishing in a free society” (Jan. 23, 2012)
  • Copywrong: copyright as censorship
  • KOL346 | Copyright and Satoshi’s Legacy: The Tatiana Show, with Tatiana Moroz
• How to Improve Patent, Copyright, and Trademark Law
• FDA and Patent Reform: A Modest Proposal
  • “Are Patents Needed to Make Up for FDA Kneecapping?” (July 2, 2011)
• KOL190 | On Life without Patents and Copyright: Or, But Who Would Pick the Cotton? (PFS 2015)
• Mark Lemley: The Very Basis Of Our Patent System… Is A Myth (July 29, 2011)
• Frank H. Easterbrook, “Intellectual Property Is Still Property,” Harv. J.L. & Pub. Pol’y 13, no. 1 (Winter 1990): 108–118, pp. 109–110 (on inevitable disclosure)
• Intellectual Property’s Great Fallacy
• KOL190-2 | Part 2: On Life without Patents and Copyright: Or, But Who Would Pick the Cotton? — Panel Discussion, Hoppe, Dürr, Kinsella, van Dun, Daniels (PFS 2015)
• The Overwhelming Empirical Case Against Patent and Copyright
• “The Problem with Intellectual Property,” in Handbook of the Philosophical Foundations of Business Ethics
• Do Business Without Intellectual Property (Liberty.me, 2014)
• The Universal Principles of Liberty

Shownotes and Summary

Overall Summary of Debate

At the Free Cities Conference in Próspera, Alex Voss moderated Stephan Kinsella against Brian O’Beirne on whether intellectual property is legitimate and what a free city should do about it. Kinsella argued that property exists only to allocate scarce, rivalrous means (self-ownership, first use, contract, restitution); ideas are guides to action, not ownable things. Patent and copyright are statutory privileges—historically Crown monopolies and press control—that impose unconsented negative servitudes on other people’s property, block independent inventors, enrich large firms, and should be abolished. O’Beirne treated IP as a right in human ingenuity and a last individual defense against corporate oligopoly and central banking. He granted that the present code is broken (thickets, trolls, life-plus-70) but said abolition would hand creators’ work to those same firms; the answer is reform, sector-scaled terms, and symmetry of rights, not erasure.

On practice they were closer. Both said Próspera should not pick a treaty fight that threatens the zone. O’Beirne wanted opportunistic protection to attract builders (CAFTA-DR/TRIPS, Infinita). Kinsella wanted the lightest lawful touch—no treble damages, no criminal copyright, shorter terms, Founders’ copyright, no software copyright—and stressed that patents are territorial, so skipping a local patent office does not stop U.S. or European filings and is largely irrelevant for exporters. Audience questions (expiry of “property,” fire and the wheel, trademarks, pharma/FDA) replayed the same split: O’Beirne qualified rights by the common good and novelty; Kinsella called consistent IP perpetual, the patent-bargain a myth, and patents a patch on the FDA.

Summary of Kinsella’s position (from Grok, based on the transcript and his pre-debate email exchange with O’Beirne and Voss)

Stephan Kinsella’s case against intellectual property, as he put it to Alex Voss before the session and then on stage, has two layers that he keeps joined: a rights argument about what property is, and a practical argument about what a free city should do when it cannot get the ideal.

Voss had already framed the dispute narrowly: patents and copyrights—exclusive rights in inventions and works that bind strangers without a contract. Contracts, NDAs, employment terms, and trade secrets were set aside as different questions. Voss’s sketch of Kinsella’s theory (conflict over scarce means; title by appropriation or transfer; creation not an independent source of title; information as patterning of an already-owned substrate; IP as a veto over others’ things) Kinsella accepted, then added history, scale of harm, and institutional design.

1. What property is for

The four-minute opening is the core. We do not live in the Garden of Eden. Action uses two things: scarce means that can cause results, and knowledge that tells us how to use them. Knowledge can be copied; a hammer or a factory cannot be used two incompatible ways at once. Because people have free will, conflict over those scarce means is always possible. Property rights are the norms that let people possess and use those means peacefully—self-ownership of the body; original appropriation of unowned external resources; contract; restitution for wrongs. That, he says, is the spine of Roman law, common law, and a consistent libertarianism.

Ideas do not fit. They are not “conflictable.” They exist only as the patterning of some already-owned substrate (paper, a chip, a machine). You own what you make because you already owned the inputs, not because “creation” mints a new title. Patent and copyright therefore do not add a new kind of property. They give A a legally enforceable veto over how B uses B’s own press, factory, or chemicals. In the debate he calls that a nonconsensual negative easement or servitude—the same structure as a restrictive covenant, minus the neighbors’ consent. Consent is the whole difference.

He is explicit that he does not care about “symmetry.” A rule that everyone may sue everyone for defamation, or for welfare, would be symmetric and still unjust. First-to-the-patent-office does not even guarantee uniqueness: independent inventors are blocked. That is enough, for him, to reject the system as a matter of justice, before any spreadsheet about incentives.

2. History, legislation, and the dishonest name

He adds what Voss’s paragraph left out. Patent began as Crown privileges to shield favorites from competition (Statute of Monopolies, 1623). Copyright began as control of the press and unapproved speech (Statute of Anne, 1710). They did not grow out of common-law title; they were statutes. In the email he presses a further institutional point: patent and copyright cannot exist without a legislature empowered to make law. Organic court-made law—Roman law, common law, Restatements, even a scholarly compilation adopted as a code—resolves disputes over scarce things. It does not invent a 17-year monopoly in a pattern. A free city that takes common-law or Restatement principles as its base, and treats legislation as rare and suspect, has a structural reason not to enact IP at all. His Universal Principles of Liberty are meant that way: not as a statute.

He tells Brian that origin is not his only argument (so the “genetic fallacy” charge misses). He also opposes trademark, defamation, and trade secret, some of which did come through common law. “Sometimes the common law gets it wrong.” The name “intellectual property” is the propaganda move: a state privilege flying the flag of property and capitalism. That is why he calls it intellectual privilege and why, in the email, he ranks abolishing or shrinking it with war, taxation, and central banking—and in one respect worse, because those are at least seen as evils, while IP is sold as a positive good.

3. “Property in value,” labor theories, and the treaty web

The email states the deeper error he thinks sits under most pro-IP talk: a property right in value, fed by a Lockean labor theory of property and a Smithian–Marxian labor theory of value. Labor and ingenuity do not generate title in other people’s already-owned stuff. That fallacy, he writes, now binds almost the whole world through the Paris Convention, the PCT, Berne, TRIPS, and WIPO. So the theoretical case is not academic. It explains why a new city cannot simply opt out without cost.

On stage he answers the “ingenuity deserves respect” line the same way: respect is not a veto over neighbors. Copying freely is why the species is richer. Elon forgoing patents “defensively” is the exception that shows the rule: portfolios accumulate in large firms, thicken into cartels, and do not liberate the lone inventor.

4. Consequences he treats as confirmation, not the foundation

He is not a utilitarian first, but he treats the results as what you would expect from a privilege.

• Patents suppress and distort innovation, raise prices, impede R&D.
• Copyright censors speech and warps culture.
• The “patent bargain” (monopoly in exchange for disclosure the public would not otherwise get) is a gyp: firms patent what they would reveal by selling the product anyway and keep the rest as trade secrets (he points to work associated with Easterbrook and a post on c4sif.org).
• Fire and the wheel would be patentable subject matter; term limits and “laws of nature” exclusions are political patches, not principles. Consistent IP advocates (Galambos, some Randians, J. Neil Schulman, Spooner) therefore want perpetual terms.
• Trademark does not mainly stop fraud; Chanel can seize knockoffs the buyer knows are knockoffs. Reputation is not ownable. He ranks harms: patents worst, then copyright, then defamation, then trademark; mask works and moral rights are trivia.
• Pharma: patents are a patch on the FDA, which forces disclosure and lets rivals queue up. Mises: controls breed controls. Without both, first-mover advantage and secrecy do the work. Even with the FDA, he says you still do not need patents (again pointing to c4sif.org).

When Brian reads Boldrin, Levine, and Lerner as “no productivity gain from expanding patents, hence a wash, hence keep the right,” Kinsella’s frame is the opposite: an unjust monopoly that is also a deadweight lawyer tax does not become just because the empirics are muddy.

Forced to choose between current copyright and none, Brian keeps the current term (Rowling). Kinsella’s reply, cut off in the recording, is that there are business models without the monopoly; Rowling-scale success is not a proof of the statute.

5. What a free city should actually do

Voss asked for practice: how high IP ranks against courts, tax, immigration, medical approval; granting vs. recognizing foreign rights; sub-sovereign constraints; whether a for-profit city changes the ethics.

Kinsella’s email answer:

Ideal end-state first. A free, liberal society respects self-ownership and scarce-resource title. Patent and copyright are “utterly incompatible” with that, like drug laws, taxes, conscription, war, central banks, and state schooling. The cumulative harm of patents alone is “almost inconceivable and certainly incalculable.” Ceteris paribus a free city has no IP law.

Then constraints. You may not be able to be a total IP scofflaw. Treaties and host statutes bind; other states punish tax and banking havens; investors have been taught that IP is capitalism. Reduced IP may not even sell until you educate them. So: comply as little as you must, advertise the compliance as minimalist and efficient, and use the widespread “the system is broken” consensus as cover.

Concrete minimalism (email + debate): no treble damages; no criminal copyright; shorter terms; dump the extra 20 years the U.S. pushes; leave Berne if you can; Founders’ copyright (~14 years) as Tom Bell-style reform for people not ready for abolition; drop software from copyright; other incremental reforms he has listed (Voss asked whether How to Improve Patent, Copyright, and Trademark Law is still the handout—he treats that as the short-of-abolition menu). MAYA—“most advanced yet acceptable”—is the slogan; the fight is over what counts as advanced.

Granting vs. recognizing, and why patents are the easy win. This is the technical point he repeats in the email and on stage because it is “arcane” and constantly missed. Patents are territorial. There is no world patent. Making or selling X in country D does not infringe A’s, B’s, or C’s patents. China cannot “steal” a U.S. patent by practicing the invention in China. If Titusville/Próspera has no local patent system, local research, manufacture, and even export to places without a patent do not violate anyone else’s patent. Builders can still file in the U.S., Europe, Japan, China. A tiny jurisdiction’s own patent office is expensive and unused. So refusing to create a local patent institution is both the principled move and, usually, costless for firms selling abroad.

Copyright is harder because Berne makes a work published in one country enforceable under another’s copyright law. That is why he talks about lighter enforcement, shorter terms, and exiting Berne rather than “patents don’t apply here.”

Political capital. Autonomy is scarce. He does not tell founders to spend their last chip on a symbolic patent code. He tells them to take the lightest lawful touch, teach residents and investors why that is a feature, and not build an examination corps they do not need.

Legislation test. If the city’s legitimacy story is common-law or Restatement-style judging, it should be reluctant to enact any rule that can only exist by “the decree of a committee of bureaucrats called ‘legislature.’” That test knocks out patent and copyright even for people who are not anarchists.

On Voss’s hypos he did not write full answers (not enough time), but the implications are direct: do not build a local grant system; training an AI model on copies is using information, not a special new wrong if copyright is illegitimate; a research exemption is at best a lesser evil that still concedes the patent; a generics plant exporting only to unpatented markets is not “infringing” those eleven countries’ patents by operating in Titusville.

How the two layers fit

Theory: property is for scarce means; IP is a nonconsensual burden on those means, born as privilege and legislation, dressed up as title in value and ingenuity.

Practice: abolition is the benchmark; in an IP-treaty world, a free city should create as little patent/copyright machinery as it can, exploit the territorial nature of patents, market “broken-system reform,” and spend scarce sovereignty on courts, tax, and medical speed—while refusing to treat IP as one of the sacred property rights the project exists to protect.

That is the same case in the first four minutes, the rest of the floor fight, and the August 31 email: not a dispute about whether inventors are clever, but about whether cleverness licenses a veto over other people’s already-owned things.

Summary of O’Beirne’s position (from Grok, based on the transcript and his pre-debate email exchange with Kinsella and Voss)

Brian O’Beirne’s case for IP, drawn from the debate and his email, is that intellectual property is a real form of property in human ingenuity, and that it is one of the few remaining individual defenses against concentrated corporate and financial power.

1. The political background, not a free-market baseline
He does not start from a clean libertarian society. He starts from a world in which corporate oligopolies already control most material resources and the means of production, aided by central banking and cheap credit. That order, he says, produces wage slavery, surveillance capitalism, pollution, and poverty. Libertarianism is a legitimate reaction to that: people try to wall off what is theirs. But he thinks the standard libertarian property story is too thin for that fight.

2. Critique of the scarcity / first-occupancy frame
On his reading, anti-IP libertarians treat property only as a conflict-avoidance rule for scarce, rivalrous things, allocated by first occupancy (plus contract and restitution). He objects on two grounds:

• Almost no one alive today was “first.” Treating first occupancy as decisive either blesses the existing distribution or requires libertarians to say how they would reallocate it.
• That frame treats ideas as free-for-all because they can be held simultaneously. He calls that unrealistic. Tesla’s patents do not stop an ordinary person from using a car; they mainly constrain other firms. The real restriction, in his view, is already the concentration of capital, not the patent.

He also blurs the material/idea line. Citing George Gilder, he argues that most of the value in physical goods is embedded knowledge (design, structure). Smash a Tesla and you still have the atoms; the value is gone. So “real” property already depends on ideas. Drawing a boundary around land is itself an idea. He treats that as a reason to see IP as the more basic form of property, not an exception.

3. What IP is supposed to protect
He insists the object is not “ideas” in the abstract but ingenuity: intelligence, industriousness, gumption. That is “the wellspring of human civilization,” neglected in an economy of alienated labor and scale, and overshadowed by talk of AI. Justice, for him (invoking the Roman “give each their due”), means the creator is owed respect for that creation. He calls this deontological, not merely utilitarian.

He answers the “IP limits what you may do with your stuff” objection by stressing symmetry and priority: you get the right only if you were first with something new, non-obvious, and useful; the other person has the same right if they invent. Statutory origin does not, in his view, make the right illegitimate (he rejects the genetic fallacy). In Ireland, he notes, IP has been treated as a constitutional individual right. Positive law is needed because these goods are “ethereal” and easy to misappropriate; the legislature sets parameters.

4. History and “the patent bargain”
That patents and copyrights grew out of privileges and statutes (Statute of Anne, Statute of Monopolies) is, for him, neither here nor there. Value can survive a bad origin. He also defends disclosure: the patentee publishes the invention so others can invent around it. Without protection, he expects creators to hide work. He treats term limits as compatible with property because rights are already qualified by the common good (Irish constitutional balancing; the drowning-man-on-your-land example) and because knowledge becomes obvious over time.

5. Reform, not abolition
He agrees the current system is “ridiculous”: thickets, trolls, life-plus-70 copyright, software patents. That is an argument to reform—return rights toward individuals, scale term to cost of creation (longer in pharma, shorter or none in software/AI)—not to abolish. Abolition tomorrow, he says, would give large firms free rein over everyone else’s inventions and works. They already own the presses and factories; without IP, they would take artistic integrity and inventor rents as well. Forced to choose between no copyright and the present “fascist” term, he would keep the present one, citing J.K. Rowling as someone who could not have built a career without it.

On empirics (Machlup, Boldrin & Levine, Lerner), he reads the literature as showing that expanding patents did not raise productivity—not that patents damage innovation. A wash, in his view, still leaves the creator’s right standing.

6. Free cities / network states
Pragmatism dominates here. Honduras is bound by CAFTA-DR / TRIPS-plus. Network states should not pick fights that threaten their existence. They should be opportunistic: whatever IP mix speeds innovation and draws builders (he points to Infinita). For jurisdictions trying to carve out sovereignty and win recognition, defending individual creation against a “globalist corporate oligopoly” matters more than whether the right comes from statute or common law.

In one line:
O’Beirne treats IP as property in ingenuity, justified by desert and by the need for a last individual foothold against oligopoly; the existing code should be trimmed and differentiated by sector, not discarded, and free cities should keep as much of it as diplomacy and growth require.

Summary of the Debate

The debate at the Free Cities Conference in Próspera (5 September 2026) was billed as two questions: whether intellectual property is ethically defensible, and what a free city should do about it. Alex Voss moderated Stephan Kinsella against Brian O’Beirne. Theory first, practice second, then audience. It did not “settle” the old libertarian fight. It did make the clash of frames unusually sharp.

Openings.
Kinsella used his four minutes for the scarcity argument he has made for thirty years. Property exists because means of action are rivalrous. Title comes from self-ownership, first use, contract, and restitution. Ideas guide action but are not scarce; patent and copyright are statutes born as Crown privilege and press control, not common-law title. They burden other people’s things, suppress innovation and speech, and should be abolished as privilege, not defended as property.

O’Beirne did not try to win on homesteading. He conceded sympathy for that libertarianism, then changed the terrain. The world is already an oligopoly of firms and central banks. First occupancy blesses a distribution nobody living made. What is left for the individual is ingenuity. IP is a last bulwark against that elite—not “ideas,” but intelligence and gumption. Bad historical origins (the genetic fallacy) do not settle present value. Network states should take whatever legal tools they can get.

The floor fight.
Kinsella pressed the counterfactual: in a free market with no IP statute, why would you create a penalty for using your own press or factory in a pattern someone filed at an office? “Corporations are too powerful” and “ideas deserve respect” are not title. Copying is how wealth compounds. Patents accrue to the same large firms O’Beirne fears.

O’Beirne granted thickets and trolls, then flipped the counterfactual: abolish IP tomorrow and those firms take every invention and book for free. Reform, don’t erase. Kinsella called that “free rein” freedom.

He then used the HOA hypo: a covenant not to paint houses orange is fine because it is consented. Patent and copyright are the same negative servitude without the burdened owner’s consent. O’Beirne answered with symmetry (you can patent too), first occupancy applied to novelty, Irish constitutional recognition of IP, and the need for statutes because inventions are “ethereal.” Disclosure, inventing around, and term limits were offered as the market-facing side of the bargain. InsiderWave and politician trades were his picture of a world without information rules.

Kinsella discarded symmetry: unjust rights stay unjust if everyone holds them. First to the patent office is not first to invent. He is also against trademark, defamation, and trade secret, so “it came from statute” is not his only brief. Deadweight lawyers and blocked independent inventors are enough.

Voss asked O’Beirne for reform and for justice versus utility. O’Beirne proposed sector-scaled terms (long in pharma, short or none in software/AI), called his view deontological (“give each their due”), and, with Gilder, treated knowledge embedded in matter as more basic than land lines. Kinsella put the Epstein question: no copyright, or today’s “fascist” term, if those are the only options. O’Beirne kept the current term (Rowling, publishers, integrity). Kinsella’s reply—cut in the recording—was that fortunes exist without the monopoly.

Practice.
On free cities both sounded pragmatic, then diverged on what “advanced” means.

O’Beirne: Honduras is in CAFTA-DR / TRIPS-plus. Do not suicide the project. Be opportunistic; Infinita-style speed; attract people who want protection.

Kinsella agreed on survival and MAYA, then argued the selling point should be less IP once investors are taught. Most Rothbardians already agree; utilitarians and Friedmanites lag. Lightest lawful touch: no treble damages, no criminal copyright, shorter terms, Founders’ copyright, no software copyright, exit Berne if possible. On Voss’s worry that skipping IP would scare off drug and device builders, he gave the territorial point: patents are national. No Próspera patent office does not stop a U.S. or EPO filing, and almost no one would file in Próspera anyway. Copyright is the treaty problem, not patents.

Audience.
A “from the future” speaker denounced IP as blocking simultaneous invention and praised pop-up cities. Someone asked O’Beirne why true property expires; he invoked democratic side-constraints and the drowning man on your land. Kinsella noted that consistent IP people (Galambos, some Randians, Schulman, Spooner) drop the expiry, and that the patent-bargain story fails because firms patent what selling would disclose.

On empirics, an audience member cited Machlup and a priori damage to innovation. O’Beirne read Boldrin, Levine, and Lerner as “expansions didn’t raise productivity,” not “patents destroy it”—a wash that still leaves the creator’s right. Fire and the wheel: O’Beirne said laws of nature and obviousness; Voss asked whether they were always obvious; Kinsella said they would have been patentable subject matter.

Trademarks: O’Beirne thought anti-IP libertarians were softer there. Kinsella ranked patents, copyright, defamation, trademark as the damaging cluster; knockoff seizures are reputation rights, not fraud prevention.

Drugs: Kinsella pointed to his FDA post. Patents patch a disclosure-forcing regulator; drop both and you get first-mover advantage and cheaper medicines. Controls breed controls.

Where they actually disagreed.
Not on “the current U.S. code is ugly.” Both said that. The split is whether ingenuity is a source of title that may burden strangers’ things, and whether oligopoly makes that title more necessary or shows why the privilege should not exist. For O’Beirne, abolition hands the field to the firms; IP is the individual’s remaining claim. For Kinsella, that claim is the firms’ tool, an unconsented servitude, and a free city’s comparative advantage is not a better patent office but fewer artificial vetoes—especially local patents, which do almost no work for exporters anyway.

They closed closer on tactics than on principle: neither told Próspera to pick a fight that kills the zone. O’Beirne would keep and tune protection as a draw. Kinsella would shrink enforcement to the treaty floor and treat that shrinkage as the product.

Additional information

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1.  KOL038 | Debate with Robert Wenzel on Intellectual Property; KOL123 | Debate with Jan Helfeld on Anarchy vs. Limited Government. [↩]