KOL038 | Debate with Robert Wenzel on Intellectual Property

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Kinsella on Liberty Podcast, Episode 038.

[Update: see my post Wenzel the Werewolf]

Blogger Robert Wenzel and I had a “debate” earlier today about IP, to be jointly put up on my podcast and his Economic Policy Journal “podcast” (it’s on his site at Kinsella Crushed!! and Initial Report on Debate, and mentioned ahead of time several times as linked below). Bob is an Austrian libertarian (I think) blogger but has been criticizing me and Jeff Tucker’s anti-IP views for a few years now (see links below), so we decided to discuss it. ¹

The transcript is available here.

Youtube:

Backup copy:

The discussion went on for over 2 hours. It went about as I expected: he tried to dwell on side points, he refused to—was unable to—even attempt to define IP much less provide a coherent justification for it. He repeatedly engaged in question-begging: calling using information you learn from others “stealing,” which presupposes that there is some owned thing that is stolen. He started out with several bizarre, off-point attacks: for example challenging my claim in my 2001 piece Against Intellectual Property that Rothbard was one of the original libertarian opponents of IP. The entire criticism by Wenzel is bizarre because whether or not I am right in listing Rothbard as an opponent of patent and copyright has nothing to do with whether IP is justified. Further, later in the paper I have an extensive section dealing with Rothbard’s attempt to come up with some kind of contractual scheme that emulated some aspects of IP, which he confusingly calls “copyright.” Some libertarians, like Wenzel, apparently think Rothbard did support copyright (though Wenzel repeatedly equivocates on whether he is talking about state copyright or Rothbard’s private “copyright” scheme), or patent, or something in between, and others say he didn’t. For example  David Gordon writing on LewRockwell.com, in Sam Konkin and Libertarian Theory, observes:

… anti-IP views were very much in the air thirty years ago: Wendy McElroy stands out especially in my mind as a forceful and effective critic of IP. Even earlier, Rothbard had in Man, Economy, and State (1962) favored the replacement of the state system of patents and copyrights with contractual arrangements, freely negotiated. (If one moves outside modern libertarianism, Benjamin Tucker rejected IP well over a century ago as Wendy McElroy has documented in an outstanding article.

Rothbard did not take this “contractual copyright” idea very far and indeed I believe it contradicts other aspects of his thought such as his contract theory (ch. 19 of Ethics of Liberty), his opposition to reputation rights/defamation law (ch. 16), and his explicit opposition to patents (ch. 16, also Man, Economy, and State and Power and Market, Scholars Edition, pp. liv, 745-54, 1133-38, 1181-86).

But anyway, what does it matter? It’s a bizarre appeal to authority. I am quite sure that Rothbard would have agreed with us anti-IP libertarians if he had had more time to sort it out; as I noted, it’s implied in all the structure of his political theory. This is why Hoppe easily saw this by integrating Rothbardian  and Misesian political economic ideas (Hoppe on Intellectual Property). But so what if he would not have? Then he would have been wrong. And so what if I had been wrong in listing Rothbard as an early libertarian opponent of IP (though he arguably was; although as the paper explained later on, his position was not fully fleshed out and/or had ambiguities). How does this prove IP is legitimate? It does not, but Wenzel has no good argument for IP which is why he for over two hours refuses my repeated requests that he provide one—after all, it’s supposed to be a debate about IP. In fact in my opening statement I explained that the burden of proof is on the pro-IP libertarian: to provide a coherent definition of and justification for IP, especially given its statist origins and statist usage today (Where does IP Rank Among the Worst State Laws?).

At another point Wenzel, going back and forth on whether Rothbard did, or did not, support IP, or patent, or copyright—yes he did, wait, no he didn’t, well not copyright like today, but copyright like in 1962, but private copyright, not legislated copyright, and copyright that somehow includes patents, though he mounted a great case against patents…. duuuuuhhh who knows what Wenzel thinks Rothbard thought about patents (and why is this relevant in a discussion of whether IP is legitimate?)—Wenzel says Rothbard believed in perpetual copyright, something I found amusing since this is what the absurd Galambos and Spooner believed in, and whatever Rothbard thought about IP, he was an opponent of the traditional concept of IP and patent and state-legislated copyright. Wenzel finds a quote from Rothbard about perpetual copyright, but of course Rothbard was talking about his contractual “copyright” which is not the same as the IP protected by modern systems (I tried in vain to explain the difference between in rem property rights and in personam contract rights, since the latter are only private agreements between a small group of people and do not affect third parties, unlike in rem or real property rights, which is what real IP advocates want IP to be; meaning you cannot create property rights like IP rights, out of contract rights; but Wenzel was uninterested in serious dialogue). Wenzel basically is arguing here: “ha ha, look at Kinsella, he does not have the Boldrin and Levine paper memorized, or every word of Rothbard, so he is a shoddy thinker! Therefore, IP is legitimate!”

And this, ladies and gents, is what passes for an attempt to argue for IP: bluster, bravado, circular reasoning. I have yet to see a good argument for it and Wenzel did not offer one. (Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012); There are No Good Arguments for Intellectual Property.) I asked him a dozen time to give me his view on IP and he kept promising to do it later; 1.5 hours in it became obvious he would continue to stonewall, and to try to read boring quotes from my footnotes (snore), so I tried to state his position for him, which he basically agreed with. His argument is what he imagine’s some version of Rothard’s to be: that you can sell ideas, they are “scarce,” so you can own them. Wow! No one has ever grappled with this brilliant insight before, Wenzel!

Another bizarre attack was his reading of a Hoppe quote on epistemology and demanding to know if I still agree with the Misesian approach to epistemology; yes, I said. Aha! he pounced—but if you are not a utilitarian WHY DO YOU POSITIVELY CITE BOLDRIN AND LEVINE!! It is positively bizarre. As if showing that utilitarian arguments for IP fail even on their own term is somehow becoming a utilitarian. It’s an incredibly stupid argument.

Ultimately the “debate” was pointless because Wenzel does not know how to engage in subtle discussion, he engages in question-begging repeatedly, he engages in bizarre ad hominem and tangential arguments, he refuses to define terms and seems unable to engage in clear, analytical reasoning. Honestly, he seems to have no clear position at all on IP, so it’s kind of a mystery why he is so invested in it at all, so passionate about it, so hostile to my views. Other than his thinking he has some magical formula for getting Drudge Report links that he wants to be able to sell in his Drudge-Report dominated libertarian paradise. Apparently he is for some reason upset that anyone would dare, DARE, to ever challenge or disagree with Rothard (though there is no way Wenzel could agree with Rothbard’s own contract theory or views on defamation law, and maintain his pro-IP stance), or that the anti-IP position is becoming the default position among modern libertarians (The Origins of Libertarian IP Abolitionism; The Death Throes of Pro-IP Libertarianism).

Listen if you dare; I cannot promise it will be enjoyable; and I apologize in advance for at times being unable to take Wenzel’s unfounded bluster and bravado and sputtering attempt at arguments seriously, and sometimes myself resorting to sarcasm, mockery, condescension, and coarse language (all accurate and well-deserved).

In short: Wenzel embarrassed himself but as expected is saying he “crushed” me—all the while seemingly oblivious to the fact that he did not even attempt to argue for IP must less define it or establish that it is justified or compatible with libertarian property principles.

Update: Stephen Davis sent me  debate summary, appended below:

Wenzel-Kinsella IP Debate Summary

1) Kinsella makes opening remarks stating that (a) he assumes Wenzel agrees that there should be a free market and a system of private property rights in scarce resources, (b) all he has to show is that the idea of IP sets up some kind of right that is incompatible with the rights Wenzel already supports, (c) to establish the case for IP, Wenzel needs to make a positive case explaining his theory, including putting forth a clear and coherent definition of IP, explaining why it’s justified, and explaining how it’s compatible with regular property rights, and (d) if Wenzel can’t present a positive case, then he should at least present one clear example that shows a case for IP of some type, in a free market, that doesn’t depend upon the state and explain how it’s compatible with regular property rights.

2) Wenzel explains that Kinsella has really pissed him off and asks if Kinsella thinks he’s a worm, a weasel, or a clown. Kinsella says that he doesn’t think he’s a worm, that he thought he might weasel out of the debate, and that he makes some clownish arguments and sometimes treats his guests in a clownish way.

3) Wenzel describes Kinsella’s book as terrible, misleading, containing poorly framed arguments, and illogical at points, then says it’s bizarre that it’s gotten any attention.4) Wenzel claims that Kinsella wrongly included Rothbard among a group of thinkers belonging to a long tradition of opposition to patent and copyright. In support of his case Wenzel quotes Rothbard using the word “copyright” and saying that it’s a logical device of property right on the free market. Kinsella says that although Rothbard used the word “copyright,” he advocated contractual arrangements and nothing else.5) Kinsella points out that even if he misdescribed Rothbard’s view, which he believes he didn’t, that this has no bearing on whether IP is legitimate. Wenzel says that people who don’t have time to research Rothbard’s views are going to be misled by Kinsella’s book and that Kinsella is a sloppy writer and thinker.6) Kinsella asks Wenzel to give his definition of IP and explain why it’s justified. Wenzel says that he’s building his base towards it and that he’s getting there.

7) Wenzel says he will show that Kinsella is a sloppy writer and thinker and that he doesn’t know what he’s talking about. He says that he wants to destroy Kinsella because he (along with Jeff Tucker) has a following in the libertarian movement and his thinking is so off, so bad, and so sloppy that it needs to be destroyed.

8) Wenzel points out that Kinsella has an online post called “Boldrin and Levine: The Case Against Patents” and that Boldrin and Levine are utilitarians. Kinsella states that he is not a utilitarian. Wenzel points out that Kinsella says that people who favor patents on utilitarian grounds must be either ignorant or dishonest, and Wenzel asks how he can make such a claim. Kinsella points out that the empirical data do not support the utilitarian case for patents, so sincere utilitarians would have to oppose patents if they were aware of the studies. He points out that if utilitarians are aware that the empirical data do not support their case yet still support patents, they are dishonest, and if they aren’t aware of the studies, they are ignorant.

9) Wenzel grills Kinsella about what’s in the Boldrin and Levine paper and Kinsella describes their general thesis. Wenzel claims that Kinsella didn’t read the paper.

10) Wenzel asks Kinsella why he cites utilitarians in support of his argument when he claims not to be one. Kinsella points out that he is a principled libertarian and therefore opposes patents on propertarian grounds, but that there’s nothing wrong with pointing out that utilitarian arguments fail on their own terms.

11) Kinsella asks Wenzel to present an argument.

12) Wenzel quotes Kinsella discussing why authored works are not scarce in the way that a piece of land or a car are scarce. He asks Kinsella what he means by “scarce.” Kinsella explains that he means “scarce” in the way that every economist means it: rivalrous.

13) Wenzel says that he has a formula to drive traffic to his site from Drudge Report. He asks Kinsella if his formula is scarce, or whether every blogger in the world knows his formula. Kinsella says that Wenzel is assuming that if everyone doesn’t have it that it’s scarce, and says that patterns of information are not scarce. Kinsella cites Mises and says that knowledge guides action but is not a scarce means of action.

14) Wenzel asks Kinsella if his Drudge formula is superabundant and asks why it is not scarce. Kinsella says that it is not scarce because it is not rivalrous. Kinsella says that a rivalrous good is one that can only be exclusively controlled by one person at a time. Wenzel asks why that is the definition and claims that there is rivalry between him and someone selling the same formula as him (and driving the price down).

15) Kinsella says that Wenzel is engaging in equivocation because rivalry in the sense of competition is not what economists mean by the term “rivalrous.” He says that people might metaphorically speak about fighting over religion, but that what they’re really fighting over is rivalrous resources such as bodies or land, and that religion is simply the justification given.

16) Kinsella says that in Wenzel’s example, someone selling the same formula as him is simply competing with him and that doesn’t make his formula rivalrous. Wenzel continues using the term “rivalry” synonymously with “competition” and claims that Kinsella doesn’t know what he’s talking about.

17) Kinsella says that competitors might “take” sales from each other, but that they have no property right in the money of customers.

18) Wenzel claims that any reasonable person is going to know that his Drudge formula is scarce and that if someone else learns about it, that person is in rivalry with him. He says this is common sense and that he doesn’t have to defend it any further.

19) Kinsella poses a scenario: If Wenzel owns a drug store and a competing drug store opens up across the street, would that be rivalry? Wenzel says of course. Kinsella then asks if the competing drug store takes away some of Wenzel’s business, are they taking away something that Wenzel has a property right in? Wenzel says that rivalry is competition and that if the competing drug store stole his products and sold his products, that would be stealing. Kinsella says that Wenzel is engaging in question begging by analogizing physical things to his Drudge formula.

20) Kinsella asks Wenzel to agree with him that you can’t establish something by engaging in question begging. Wenzel agrees.

21) Wenzel asks Kinsella what is superabundant about his formula. Kinsella says that his formula is not superabundant, but that it can be infinitely copied.

22) Kinsella explains Hoppe’s discussion of why scarcity is a necessary condition for the emergence of property. Kinsella says that we live in a world in which there are scarce resources (what Mises called the means of action) and that libertarians believe in property rights to assign an exclusive owner to each scarce resource. Kinsella says that knowledge is not a scarce resource.

23) Kinsella asks Wenzel what his alternative theory is. Wenzel says his theory is that ideas are scarce.

24) Kinsella explains the implications of assigning property rights in ideas. He says that there would have to be property rights in recipes for fashion, newspaper headlines, pizza, and bar drinks; that we’d all have to get permission to use any information; that all ideas are built upon other ideas. Kinsella explains the harm that granting new rights does by creating obligations on other people. Wenzel says that he doesn’t want to hear that stuff and that it’s a simple fact that ideas are scarce.

25) Wenzel asks Kinsella to demonstrate to him how he uses his Drudge formula. Kinsella asks Wenzel if he can tell him what’s in his left pocket. Wenzel says that he can’t and that’s the exact point. Wenzel says that knowledge is scarce.

26) Kinsella asks if Wenzel’s argument is that if something is not superabundant that there should be property rights in it. Wenzel says that ideas and information are not superabundant like air.

27) Kinsella asks Wenzel if he learns about his Drudge formula, why can’t he act on it? Wenzel says it depends how he learns about it. Kinsella agrees. Kinsella says that if he contracted with Wenzel not to reveal the information, that is perfectly legitimate, is simply a contract, and has nothing to do with IP. Wenzel says that at this point, with only A and B involved, his Drudge formula is scarce.

28) Kinsella says that scarcity explains why we have property rights and what their function is. He says that when people come into conflict over something that only one of them can use at a time, libertarians believe that the one who homesteaded it first or that contracted for it is the one who gets to control it. He says that the case against IP is recognizing that the only way to grant IP rights is to undercut earlier homesteading rights.

29) Kinsella states his agreement with Wenzel that if B has a contract with A to keep information secret, that B is bound by the terms of the contract. Kinsella asks Wenzel if B violates the contract and the information becomes known to C, who is not a party to the contract, how C is violating A’s property rights? Wenzel starts analogizing information to cars, and Kinsella says that he is question begging because they both already agree that there are property rights in cars.

30) Wenzel asks why he can’t ask person C, who got his information from B, to take the information off his website, just as Hertz could ask for a rental car back from person C. Wenzel says that it’s the same whether you are talking about information or talking about a car. Kinsella says it’s not the same because the car is a rivalrous resource and the information is not.

31) Wenzel asks why his formula isn’t a rivalrous resource when only three people know it and a competitor using it drives down the price. Kinsella asks what driving down the price has to do with its nature as a rivalrous good. Wenzel starts talking about stealing goods, and Kinsella asks how someone learning information is committing theft.

32) Kinsella says that Wenzel’s theory seems to be that if he can sell something for a price, then he should have some sort of anti-competitive right to keep the price high, which makes it scarce in a sense, so it can be owned. Wenzel says that if something has a price, it is scarce.

33) Wenzel says that he is for private property and he thinks that intellectual property is property.

34) Wenzel starts saying that if someone obtains something illegally… then Kinsella says that he is question begging because he can’t say that it’s illegal in the argument for why it should be illegal.

35) Kinsella gives examples involving making a chocolate cake and a bloody mary. He points out that he and Wenzel agree that there should be property rights in the scarce physical means that go into making each. Kinsella asks Wenzel to agree that while multiple people couldn’t use the exact same scarce physical means to make a cake or a bloody mary, multiple people could use the same knowledge at the same time. Wenzel agrees, but says that not everyone is going to know the information, so the information is scarce.

36) Kinsella asks Wenzel whether person B learning how to make a bloody mary from person A and later making a bloody mary somehow prevents person A from making a bloody mary. Wenzel says that the information is still not superabundant and that not everyone in the world knows how to make a bloody mary. Wenzel says that if a person is stealing that from him, that proves his point.

37) Kinsella asks Wenzel if B observing A and learning from A’s behavior is stealing from A. Wenzel says yes. Kinsella asks again. Wenzel says that it’s taking. Kinsella points out that A still has it, so it’s not taking. Kinsella says that it’s learning. Wenzel says he’ll go along with calling it B learning from A.

38) Wenzel says that if someone has to learn knowledge, that knowledge is not superabundant. He says it’s a scarce good. Wenzel says that he’s had economists steal his critiques of Krugman, and Kinsella says that’s question begging because he has not agreed that IP is a type of property. Wenzel says that Kinsella can interpret it that way in his own world, but that he considers it theft.

39) Wenzel poses a scenario in which he has a formula for getting on Drudge and he agrees to sell that formula to B on condition that B can use it, but can’t reveal it someone else. Kinsella asks if someone else observing B over time and figuring out the formula counts as revealing the information. Wenzel says no, that is someone else independently gaining knowledge of the formula. Kinsella says that Wenzel has given up the entire case for IP.

40) Wenzel says that Kinsella doesn’t understand Rothbard and that Rothbard would favor perpetual copyright.

41) Wenzel tells Kinsella to talk about some other thing (while he apparently researches Rothbard’s perpetual copyright quote).

42) Kinsella asks Wenzel for his defense of IP. Wenzel says that ideas are not generally superabundant, they are scarce. If A has an idea, it’s his, and it’s scarce. If A makes a contract with B, it’s still scarce because it’s between A and B. If B reveals it to C, and B violates the contract, in the same way that if someone rents a car from Hertz and sells it to C… Kinsella says that this is question begging. Wenzel says it’s not question begging.

43) Wenzel quotes Rothbard using the word “copyright” in support of his argument that Rothbard is not against IP. Kinsella says that Rothbard thought contract could be used to replicate some features of the modern copyright system and that he was wrong. Wenzel says that he wasn’t wrong, and that this is more sloppy stuff from Kinsella.

44) Wenzel goes back to the Hertz example, and Kinsella says he’s begging the question. Kinsella points out that they both agree that there are property rights in cars. Kinsella says that when someone rents a car from Hertz, they sign a contract agreeing to use it for certain purposes, and that if they violate the contract…

45) Wenzel stops Kinsella because he finds the Rothbard perpetual copyright quote. He quotes Rothbard talking about “copyright” that is “perpetual.” Kinsella says that Rothbard was talking about contracts. Wenzel says that he has Kinsella by the balls.

46) Kinsella explains the difference between contractual rights and rights good against the world and says that contractual rights involving information can not be built up to support a theory of rights in information good against the world.

47) Wenzel says that Kinsella’s framework is based on broken contract and that his theory doesn’t even start until a contract his broken.

48) Wenzel poses a scenario in which he creates a house design with certain exterior features and certain interior features that he wants to protect. He draws an analogy to the Mises Institute’s sign saying “private property” and says that there are costs involved with protecting property and it’s a matter of deciding how far you want to go to protect that property. Kinsella says that he is question begging by calling his house design property.

49) Kinsella poses a scenario in which Wenzel reveals his house-building technique to a dozen people by contract and one of them leaks it online. He asks whether the technique can now be used by everyone. Wenzel says that Kinsella’s framework is based on broken contract and that he has no theory without a broken contract.

50) Wenzel asks why Kinsella keeps bringing up situations in which contracts are broken. Kinsella says that he is doing it because Wenzel is basing his theory on contract and he is demonstrating why that won’t work, since third parties can’t be bound by the contract.

51) Kinsella says that he doesn’t think that people will agree to contracts that subject them to massive penalties for doing such things as buying a book. Wenzel agrees.

52) Wenzel says that people can design whatever kind of contracts they want and asks Kinsella whether he has a problem with the way the free market works.

53) Kinsella makes closing remarks stating that we are already living partly in the nightmare world that Wenzel wants, in which hundreds of billions of dollars are wasted on patent lawsuits; IP is used to intimidate and extort people; oligopolies are created; competition is reduced; innovation is distorted and reduced; the government uses copyright to censor, threaten, ratchet up the police state, and control the internet; and people are going to jail for downloading copies of movies. He says that IP carried to its full extent would lead to a fascist, anti-property world, and he hopes that it won’t be extended any further. He says that thankfully most Austrians and libertarians recognize the horrible, fascist, police-state, anti-competitive, anti-human-life thing that IP is and are arguing against it.

Update: I do think Wenzel is in part sincere; he is just confused, and at this point too proud or invested in his status as a “thinker” to debate this with the proper inquiry and humility. Sad for him. The comments on youtube, facebook, reddit, even on his site are overwhelmingly devastating to him; I feel bad actually. Also, early on he asked me if I believed in free market copyright; I thought he said property right so said yes; that confused him for a while. Mutual mistake. On his questions to me about what was in the Boldrin Levine piece—since his question was out of the blue I at first thought he was talking about their Against Intellectual Monopoly book. I finally realized he was not talking about my earlier writing but about a recent blogpost where I mentioned their recent paper (Boldrin and Levine: The Case Against Patents). He was apoplectic that I said, in that post:

We can only conclude, at this point, that people who favor patents on “utilitarian” grounds are either ignorant or dishonest.

He was upset that I could not cite the federal labor statistics they used in their paper, for some weird reason. Good “gotcha”, Wenzel! He also thought it was odd I would use this to counter pro-IP utilitarian arguments, as if this means I am contradicting my anti-utilitarian views. Of course, this is ridiculous.  But he also thought I was saying the 2012 paper itself shows pro-IP utilitarians must be ignorant or dishonest; well it’s the fact that after 220 years, there has not been clear empirical evidence buttressing the pro-IP utilitarian case; studies like this are just summaries of or evidence of this. (See The Overwhelming Empirical Case Against Patent and Copyright.) Yet another bizarre “argument” by El Wenzellio.

The “nickels” comment (2:18:05) was from his post The Irresponsible Jeff Tucker, where he criticizes Tucker for merely stating his opinion about bitcoin, in the same post where he crows about his recommendation that people “buy nickels” (yes, shoeboxes of nickels, squirreled away in your closets).

In addition to the comments below, almost every forum I see (email, Youtube comments, Mises community, Reddit, Facebook (here, here, here, Michael Barnett’s post (suggesting Wenzel be put on suicide watch; others wondering if it’s an April Fool’s joke, Wenzel was so bad), here, here, Justin Longo‘s post, here, here, Dan Cotter’s epic thread, and Mises South Africa’s post The Wenzel IP Embarrassment, Murray D. Lewis’s post The Not-So-Great Libertarian IP Debate.)) are almost 98% anti-Wenzel. Even on his own varied blogposts, from which he is apparently blocking many critical comments (as many have reported elsewhere), he is being largely attacked, even by his own following. Truly, he has jumped his own Fonzi shark.

The Mises community thread has a few great comments:

By John James:

Oh this was so much fun.

Maybe it was my anticipation of it, but I don’t know how you guys could stop listening.  It was as entertaining as a good movie.  I even had my popcorn.  (Well, it was tortillas, but still.)

I’m going to address specific points from the debate, so if you want to listen first, go ahead and do that before reading further 🙂

 

Pre and early debate

My pre-debate guess was correct…despite all his “getting into Kinsella’s head” posts on his blog, it was Wenzel who was getting people in his own head.  He all but admits it when early on he proclaims several times how Kinsella “pissed him off”.  And he was clearly emotionally affected for the vast majority of the podcast.

What’s also telling is how Kinsella laid it out quite clearly (in his intro, no less) that the burden on Wenzel (and any pro-IP advocate) is to actually provide a positive case for IP…that simply picking at Kinsella’s argument or anyone else’s is not sufficient.  But notice that’s exactly what Wenzel starts off doing.  And it’s not even a good pick…he picks on Kinsella’s opening statements inAgainst Intellectual Property, where he lists Rothbard as an example of people showing anti-IP sentiments?

I guess it should have been expected, given Wenzel’s obsession with Rothbard (that goes even beyond his fixation with Jeff Tucker).  Wenzel is probably more “If Rothbard said it, it’s Gospel” than even Lew Rockwell.  So I suppose it’s fitting that his first instinct is to make sure to try and make the point that Rothbard was in favor of IP…because of course that’s the side he himself has taken, so of course the most important thing is that that’s the side Rothbard was on…and if that means he can show Kinsella was wrong in a statement about Rothbard, so much the better.

 

Wenzel’s lack of a positive argument

The trouble Kinsella has right from the start in getting Wenzel to even give a definition of “intellectual property” illustrates quite plainly what has been said in the comments of Wenzel’s blog for some time now: Wenzel has basically avoided stating any real concrete explanations of anything he’s had to say on IP…so no one has really had any way of actually dismantling his pro-IP position…because he essentially won’t give one.

Every time he’s ever been challenged on it he just claimed it would be dealt with in his “upcoming book”.  For FOUR F-ING YEARS he’s been saying that.  No joke.  Here’s the earliest mention (earliest I happened to know of, anyway) of this mysterious book …in2009.  (To put that in perspective, George W. Bush was still President, just 5 days prior.)  There may be others even earlier, but I’m not sure.

I think this comment from a few months ago was quite apt:

I am creating a new fallacy called “Argumentum ad Pseudo Librum”, it’s the “Argument by referring to an unpublished book” fallacy. Bob always drags it out when you start questioning his pro-“libertarian IP” views. He says “Just wait for my book” instead of responding to your argument. Then he never publishes the book.

Where is it? HBR? Wiley? Oxford? MIT Press? Who optioned the IP on this one?

I think this debate all but proves we’ll never see an IP book from Wenzel.  At least, not one that provides any sort of positive case for it, anyway.  I fully accept he may put out all sorts of crap attacking Kinsella’s work and that of any others…but I can pretty much guarantee we’ll never see anything of his explicating any of his own actual positions…something that everyone else can pick apart the way he insists on doing with Kinsella.

In fact someone even brought it up back in 2010 on his own blog…

“It will be nice when you finally publish your IP book so we can all start taking swings at your IP views because right now it’s unclear what they are and why and everytime people try to critique them you insist we wait to read your book!”

…Again that was almost 3 years ago.

Wenzel has no positive position because he can’t.  Kinsella is simply right, there is no way to justify IP within a true libertarian framework.  It’s simply unlibertarian.  This is why Wenzel insists on trying to find fallacies in Kinsella’s writing, and simply quoting other people, instead of even defining what “intellectual property” is.  He won’t even define his terms….probably because he’s got at least a few brain cells left in his senility to know that the minute he actually states a concrete position on IP, he’ll be taken to the woodshed, not just by Kinsella, but by the entire libertarian population that understands the unlibertarian reality of IP…which is quickly becoming not only the vast majority of the libertarian population, but large numbers of the population even outside libertarian spheres…  (Falkvinge.net; Torrentfreak.com; Legal Scholars: Thumbs Down on Patent and Copyright; The Origins of Libertarian IP Abolitionism; The Death Throes of Pro-IP Libertarianism)

 

Wenzel’s lack of understanding

You’ll notice this tactic of nitpicking is basically his whole “argument” for at least the first third of the podcast.  When he moves on to his Drudge Report formula, he simply fixates on the the fact that he’s (allegedly) the only person who knows the formula (even though there’s no possible way he could be sure that he’s the only one who has come to know it.  He fully concedes the concept of “independent discovery,” yet he apparently knows for sure he’s the only person to figure out this formula).  He claims that the fact that no one else knows it, means it’s scarce.  When Kinsella says it’s not scarce, Wenzel insists Kinsella recite the formula back to him.  As if a single person not knowing something means it’s scarce.

Even on Wenzel’s own terms…hypothetically saying ideas can be owned, I fail to see how one single man not knowing the formula demonstrates its “scarcity.”  I’m sure Kinsella could have easily asked Wenzel what the 100th digit in π is…does Wenzel’s ignorance of that prove it’s a “scarce” bit of knowledge?  And just how many people have to know something before it’s not scarce, anyway?  25? 250? 1 million?  Where do we arbitrarily draw this arbitrary line?

When Kinsella tries to point out that scarcity in the economic/property rights context implies rivalrousness, Wenzel equates “rivalry” with competition, using an example of himself being pissed off at party C who came to know his secret through breach of contract by party B…that means that him and C now have a “rivalry”.  The moron doesn’t even know the economic definition of the word…but then again I suppose that’s not surprising, considering he won’t define ANY of his terms.

This is further illustrated with his fixation with Hoppe’s words “super abundant”.  He basically takes those words as the litmus test for whether something is “scarce” or not.  (As if that were any less ambiguous than his “does a particular man know it” test from earlier.)  His problem is that he is evidently not familiar with the economic definition of “rivalrous”, so Kinsella has no way to explain what truly determines if something is scarce.

Wenzel thinks that if he can make a case that something isn’t “super abundant” — apparently because Hoppe is the ultimate authority on this, and his words are gospel, (where Hoppe ranks relative to Rothbard on this scale of supreme edicts from on high, I’m not quite sure) — then that specific something is not scarce.  Kinsella tries to explain multiple times that “abundance” has nothing to do with scarcity in this context.  When talking about scarcity in these terms, as Kinsella points out, the issue is whether they are rivalrous or not…that is, whether one person making use of the thing in question prevents or otherwise hinders someone else from using it.

Of course Wenzel never seems to get this point.  What’s funny is that a couple of commenters on his blog in his defense say thingslike “Yea….keep trying to convince everyone that “scarce” is something other than scarce,” but Wenzel’s opponents clearly state that ‘scarcity’ does not have to refer to ‘rarity’.

 

Logical fallacies

You’ll notice Wenzel’s entire argument — if you can even call it that — almost entirely centers around the fallacies of begging the question and a combination of argument by name (i.e. argument by definition, without stating a definition), equivocation, andappeal to authority…  (And that’s of course if you ignore what seems to be his overall argument, the ad hominem that Kinsella is “sloppy” and “doesn’t know Rothbard”.)

Throughout the whole podcast his overarching theme is that Kinsella’s writing is sloppy and Kinsella doesn’t know Rothbard very well.  What this does to prove or even support a pro case for IP, I have no idea.

When he’s not spouting ad hominem, he constantly seems to essentially make variations of the argument that ideas are property because they can be “stolen”, or that because it’s “theft of someone’s property” if you rent a car from Hertz and sell it to a third party, that means it’s also “theft of someone’s property” when you pay someone to share some information with you and then you reveal it to someone else…because “it applies to all sorts of property…intellectual property!” (1:51:40)

And when he’s not doing that, he’s either equivocating on the terms “scarce” and “rivalrous” or quoting Rothbard as saying “copyright is a logical device of property right on the free market”, and essentially implying that because Rothbard said that, that makes copyright valid…even though (a) Rothbard is not God, and (b) he wasn’t even talking about the same concept we are referring to by the term “copyright”.

Wenzel is so focused on Rothbard simply stating that “copyright” is valid, that he doesn’t even recognize Kinsella’s point that Rothbard may have said the word “copyright” but was in fact talking about something else.  Obviously if I take a bite of cereal and say “I sure do love eating cake”…that is not proof (or even strong evidence) that I actually like the dessert.

 

The closest Wenzel gets to making a point

I think the part at which Wenzel gets closest to making any sort of coherent point is the part about the Mises sign, where he’s referring to a blog post he made in which he embedded a picture of a “private property” sign on the parking lot of the LvMI.  It sounds like he’s making the point that everyone chooses to what extent they are willing to protect their property…meaning that the LvMI just put up a sign, but they could instead have a moat and sharpshooters.  Applying that to his “Rothbardian” world of IP, it seems like he’s trying to say that you get to choose to what lengths you’ll go to to enforce your “intellectual property rights”…meaning if you are using information that someone else owns the copyright in, they can choose to simply send you a cease and desist letter, or they can actually go tie you to a chair.  I think.  I can’t really be sure.  He never really makes it clear, but either way it’s irrelevant because he’s still begging the question.  He hasn’t established that anything that is currently protected by IP laws is actually property.  So it makes no difference how such things would get “protected” in a “free society”…he hasn’t proven that they should be allowed to be “protected” (i.e. that you should be able to use force to prevent others from using them.)

I also understand what he’s saying when he tries to say that Kinsella’s theory doesn’t begin until a contract is broken, but he only says that because in that moment he’s limiting his view of what constitutes “intellectual property”, or at least, what is currently protected by IP law (again, we never got a definition of IP from Wenzel).

He thinks that the only way things can become super abundant (when the “secret-knower” doesn’t want his secret out) is if someone breaks a trade secret-type contract with someone else.  But he’s neglecting virtually all forms of copyright.  If my house is near a pavilion, and an outdoor concert is being held there, and a band plays a song and I happen to hear it, under current copyright law I can’t just go play that music on my own piano, record the sounds my piano makes, and sell copies of the recordings.  (Not without paying someone a royalty, anyway.)

But there was no contract between me and the person playing the song.  So how can he justifiably prevent me from selling my recordings of my piano playing?  Kinsella addresses this very clearly in his monograph when he discusses how Rothbard was wrong: sure you can set it up so that everyone who buys a book agrees to a contract to not share the information contained within it…but suppose a third party comes across the book left on a park bench?  Or sees words on the page over your shoulder as you’re reading it.  Can they now not go write a new story about those same characters?  According to current copyright law they can’t.  But what contract have they broken?  What contract has anyone broken?

Kinsella actually starts to get to this point when he actually poses that same book scenario, but he elects to take it in a different direction and point out how no one would even agree to such a contract.  Personally I would have just hypothetically agreed with Wenzel’s suggestion of such a contract and gone straight to the third party learning the information without B breaching the contract, because as we saw, Wenzel just used the wiggle room, leading to spit-on-the-keyboard moment starting at 2:16:17. [described below]

 

Funniez and other timestamps

One of my favorite parts comes at 0:24:33 when Wenzel claims Rothbard supports copyright, and Kinsella says that’s false.  Then Wenzel quotes Rothbard saying “copyright is a logical device of property right on the free market”…right after Kinsella initially brought up that very section of Rothbard’s work himself to show that Rothbard was confusing the term “copyright”, as his example was a mousetrap…an invention…which is not covered by copyright, but patent.  So when Wenzel introduces this quote, Kinsella responds “Bob, he’s talking about a mousetrap.  Do you understand the definition of…”

Then Wenzel cuts him off with: “THE MOUSETRAP…DON’T YOU KNOW THE DIFFERENCE BETWEEN COPYRIGHT AND PATENT?  THE MOUSTRAP IS PATENT, IT’S NOT A COPYRIGHT!”

I swear this guy was senile over 2 years ago when I initially said it.  He’s so far gone now it’s comical.

 

1:18:28 was another one of the multiple parts I almost laughed my way into needing a new keyboard.  Kinsella references Rothbard’s “half-hearted” argument for contractual copyright.  The minute he said that I was like: “Uh oh.  NOW he’s gone and done it.”  And Wenzel so totally delivered: “HALF HEARTED?! ROTHBARD?!??”  Watch out Kinsella.  I’m sure there’s now a nice little spot for a doll of you in Wenzel’s Rothbard closet shrine.

2:16:17:  Kinsella asks “well how is [the contract] going to be designed then?”  And Wenzel doesn’t have an answer: “Who knows?  Let the free market decide.”  And then Kinsella sums up Wenzel’s argument:

“So in other words, you think maybe you could have a contract that could act something like IP, but what would the contract look like?  ‘Who knows?!’  What would IP look like?  ‘Who knows?!’  But I’m still in favor of it!”  (Another nearly new-keyboard moment.)

1:42:19 is probably the best Cliff’s Notes boil-down to the basis of Wenzel’s amateur position.  I love how he’s so forceful with it, but yet still doesn’t seem to be able to state it smoothly…all the meanwhile Kinsella is mockingly playing along with “uh huh”s as if he hasn’t heard this crap a thousand and one times.

1:50:58 Wenzel gives his own summary of his major points: Kinsella doesn’t know Rothbard, Kinsella quoted a paper in a blog post but didn’t read the paper, and Kinsella thinks Wenzel’s formula to get on Drudge is super abundant.

..I assume, “therefore, IP is valid”?

1:10:01 I was literally at the edge of my seat when I heard Wenzel begin “my alternative theory is…”  And then it finally comes out: “…ideas are scarce.”

There it is folks.  That’s Wenzel’s basis for IP.

Of course now that Wenzel actually stated a position pertaining to IP, Kinsella just as a reflex jumped right into his refutation of that particular flawed justification for IP (the same one he and so many others have fleshed out so many times he could do it in his sleep).  I just wish he would have slowed down to make Wenzel agree with him in a step by step Socratic way, so Wenzel couldn’t worm his way around later.

1:41:28  The second admission we finally get from Wenzel of something concrete is that Rothbard would be in favor of copyright into perpetuity (which I think it goes without saying that that means that’s what Wenzel is for too.)  Can I just say, “holy shit?”  Of course Kinsella laughs and Wenzel starts looking for a quote, and when he immediately discovers he can’t search and talk at the same time, he tells Kinsella to “talk about some…uh…some other thing” (obviously so he can ignore whatever point Kinsella makes and use the time to track down his next Rothbard quote.)

 

Conclusions

Basically this interview exposes that Wenzel has absolutely no new theory of IP or even property rights.  I recall in one blog post a while back when he was defending his delayed book release, he claimed  that his research into IP led to him going even deeper, into analyzing the concept of property and property rights.  Exactly a year ago he mentioned his “soon-to-be-released” booklet Why I Am A Libertarian Even Though There Are No Natural Rights.  And more recently in his post on the Ron Paul vs. RonPaul.com fiasco, he states that all rights are “designed.”

I forget exactly which post, but I seem to recall him implying his work was at least to some degree a development of a theory of rights or something to that effect…that essentially his defense of IP was going to be some kind of new understanding of even more basic concepts.

But of course this podcast unequivocally shows Wenzel’s position is nothing even remotely new (surprise, surprise).

With all the dancing around and ad hominem, I’m actually a little surprised Kinsella didn’t just eventually say “Okay Bob, I’m a total idiot.  I’m the sloppiest writer in the world.  Can we hear your case for IP now?”

 

Overall I find this to be a huge plus for the anti-IP side.  Despite Wenzel’s self-promotion and false blog post title, Kinsella clearly destroys him in every relevant way.  (And yes, I realize it usually happens that people say that for the side they support, no matter what happens, because obviously the whole thing is subjective)…but in this case I think it gets as close to empirical as you can…

Kinsella offers clear arguments and expositions of his points, and actually offers such arguments on the topic of IP (the subject of the debate).  Wenzel does no such thing, he simply picks specific quotes from various authors and reads them out loud, and then fixates on tangential irrelevant details, asking the same question over and over, even after Kinsella gives the answer.  He must have asked the “is the formula scarce” question close to a dozen times, with Kinsella answering directly at least three times, and offering a full explanation twice.  And of course when Kinsella ventures to ask him a simple question, or even to simply define his terms, Wenzel is all “well we’re gonna get there.”

I will grant that Kinsella initially was on the losing in terms of vulgarity, electing to use swear words on multiple occasions, but I wouldn’t go so far as to say he got more angry than Wenzel…as Wenzel made it quite clear he was “pissed”.  It was evident to me Kinsella was just getting fed up, and being of a younger ilk, curse words seemed to be a much more colloquial, conversational part of his lexicon.  (Notice his use of words like “dude” as well.)

But of course, later the tables turned and Wenzel let his tongue fly as well (1:25:14, 1:46:38, 2:04:39)  LOL (Speaking of which, is Wenzel really a Scientologist?)

But as I said, in the areas that matter, I think anyone listening will find Kinsella to have had the superior showing.  I’d like to say he had the superior argument, but Wenzel never really presented one…which I think is the most damning part of all for him.

 

I’ve determined that Wenzel really is well on his senility journey.  I had my suspicions a couple years ago…but this was just scary.  He honestly just doesn’t seem to have the capacity to actually understand the anti-IP position.  He makes it quite clear especially starting at 2:07:10 that he honestly doesn’t understand not only the basis of the concept of property, but he doesn’t even understand Kinsella’s point about the nature of information.  He literally says that Kinsella’s argument is that if A tells B something, and C finds out, that makes the information “super abundant”, and therefore not scarce, and therefore not property.

It’s insane.

also by John James:

My favorite comment so far:

I thought the debate was funny. Stephan begins with his opening comment regarding IP. Wenzel’s opening statement was used to explore the question, “Am I a worm?”

Stephan defined his terms and explained his position on IP. Wenzel stated his position on IP was based on destroying Stephan, but refused to give up a positive theory.

By the end of the “debate,” Wenzel’s theory of IP had been boiled down to one word: “Rothbard.” I can’t wait for his long-promised book.

“The General Theory of IP”
by Bob Wenzel
copyright 2017 Bob Wenzel
Chapter 1. General Theory
“Rothbard.”
Index:
Rothbard, Murray 1

 

Second favorite:

I know the Drudge formula, and I will share it now.

But first, I must point out that by sharing the Drudge formula, that Wenzel will be crushed and will have to admit the formula is no longer scarce, since I know it. Sharing this knowledge will crush Wenzel.

Now, on to the formula, but first, allow me to gloat in advance over the imminent crushing Wenzel is soon to face! Oh, how sweet it will be to crush Wenzel!

Prepare yourself, as you are about to witness a crushing, the likes of which you’ve never seen, the likes of which you will never see again, so thorough will be this crushing!

I shall crush Wenzel like a bug! Like a whining, sniveling bug, I will crush him. I shall crush him now!

Now, I crush him, but only after I mention one last time how total this crushing will be! And now, on to the crushing.

The formula is simple: you add “HOT” to a blog title full of otherwise generally known information, throw in a few ad hominum attacks to your libertarian-themed tabloid, and delete comments you find disagreeable.

BOOM! Thus ends the most complete crushing of a man in the short but glorious history of the internet. And thus ends the notion that ideas are scarce.

Jagger out.

by Conza88:

The discussion starts off well with intellectual points briefly eluded to by Kinsella… provision of context, defining terms, and indicating assumptions being made…great. Solid intro. Things look promising. Then it’s Bob’s turn… and the debate gets derailed before it’s even begun – with an attempt to address the red herring of how the debate came about… sorry, but who cares? Answer: no-one but Wenzel. Thus commences the side-show.

I had hoped it wasn’t going to end up this way. I must say props to Tucker for being way too classy to respond & get dragged in. Props to Kinsella for ‘going there’, and coming out on top despite all attempts at being dragged down in the face of such incivility. I must say, talk about shooting yourself in the foot. It’d actually have been more beneficial for Wenzel to have remained silent (and be thought a coward / buffoon) than to have spoken up and removed all doubt.

I’ve actually enjoyed Wenzel’s blog for quite some time – until lately where the commentary has become more and more rancorous. I also wonder why there appears to be some kind of emotional attachment to the issue? On a bit of a personal note though, I appreciated when Bob started posting all the Rothbard video snippets I had edited down from the full lectures (an idea to make them more accessible). He then began copying them and hosting them on his own channel.

Obviously I could careless (it’s nothing special), and in fact support their proliferation…  but what I am interested in though is how he would justify these actions with his IP “stance”? It seems rather contradictory. Again though this is hard to validate given his actual ‘stance’ is so obscure.

As a quip I’d suggest Wenzel has fallen for one of Rothbard’s sociological laws: “Everybody specializes at what they are worst at (e.g. Friedman, and money).”

Except that Wenzel doesn’t even reach that level – there isn’t any indication of specialization at all.

Furthermore it’s a shame that in all his zealotry Bob inadvertently drags down the names of the people he appeals to. Hoppe is clear as day regarding intellectual property:

Daily Bell: Where do you stand on copyright? Do you believe that intellectual property doesn’t exist as Kinsella has proposed?

Dr. Hans-Hermann Hoppe: I agree with my friend Kinsella, that the idea of intellectual property rights is not just wrong and confused but dangerous. And I have already touched upon why this is so. Ideas – recipes, formulas, statements, arguments, algorithms, theorems, melodies, patterns, rhythms, images, etc. – are certainly goods (insofar as they are good, not bad, recipes, etc.), but they are not scarce goods. Once thought and expressed, they are free, inexhaustible goods. I whistle a melody or write down a poem, you hear the melody or read the poem and reproduce or copy it. In doing so you have not taken anything away from me. I can whistle and write as before. In fact, the entire world can copy me and yet nothing is taken from me. (If I didn’t want anyone to copy my ideas I only have to keep them to myself and never express them.)

Now imagine I had been granted a property right in my melody or poem such that I could prohibit you from copying it or demanding a royalty from you if you do. First: Doesn’t that imply, absurdly, that I, in turn, must pay royalties to the person (or his heirs) who invented whistling and writing, and further on to those, who invented sound-making and language, and so on? Second: In preventing you from or making you pay for whistling my melody or reciting my poem, I am actually made a (partial) owner of you: of your physical body, your vocal chords, your paper, your pencil, etc. because you did not use anything but your own property when you copied me. If you can no longer copy me, then, this means that I, the intellectual property owner, have expropriated you and your “real” property. Which shows: intellectual property rights and real property rights are incompatible, and the promotion of intellectual property must be seen as a most dangerous attack on the idea of “real” property (in scarce goods).

As for Rothbard – we can look back with hindsight regarding his position and adequately criticize… but it pays to remember the times. Given the below I have no doubt Rothbard would have been taken by Kinsella’s & Tucker’s cleaning up of the whole issue… just like when he admitted he was wrong after Hoppe advanced his ‘a priori of argumentation’:

“…Over 30 years I have been preaching to the economics profession that this cannot be done: that economists cannot arrive at any policy conclusions (e.g., that government should do X or should not do Y) strictly from value-free economics. […]

And yet, remarkably and extraordinarily, Hans Hoppe has proven me wrong. He has done it: he has deduced an anarcho-Lockean rights ethic from self-evident axioms. Not only that: he has demonstrated that, just like the action axiom itself, it is impossible to deny or disagree with the anarcho-Lockean rights ethic without falling immediately into self-contradiction and self-refutation….”

As usual Rothbard was ahead of the game back then. The article starts off a tad rough but ends well…
“…Finally, there is the almost incredible harassment of VCR owners. If I buy a VCR and a blank tape, I should be able to tape a movie or other program off my own TV set. If the TV or movie people don’t like it, they should jolly well have to lump it. It is grotesque that movie producers might get the Supreme Court to agree to outlaw use of the VCR. Worse yet is that the movie producers are harassing poor SONY, who only manufactures and doesn’t use VCRs. Obviously, SONY has the deep pockets to enjoin and sue, which most home owners do not. Obviously, too, the government would have a great deal of difficulty mobilizing an enormous Gestapo, armed to the teeth, to break in on and confiscate or destroy the VCRs in many million American homes. Defend your VCRs to the death, fellow Americans! In practice, then, the movie people are not going to outlaw VCRs. They will just force SONY and the other manufacturers to pay a tax to the movie people, a tax which will be passed on to every VCR buyer. But the unfortunate principle—and the higher cost—might well be enshrined in the books.

The problem in all these cases is not whether “property rights” should or should not be upheld. The problem in each of these cases is: Who should have the property right? The computer hacker to do what he wants with his own computer and his access to the telephone lines, or the other computer owner? The signal sender or the signal receiver in the latter’s own equipment? The VCR owner or movie producers? In all of these cases I believe that the concept of copyright has been illegitimately extended to become invasive, and that the fact that the common law cannot combat these “crimes” is already an indication that they are not crimes at all.

But I am in an odd position here. Of all the people in the libertarian movement, I probably know the least about computer technology. There are few movement people lower tech than myself. And yet among all the computer mavens in the movement, I have seen no discussion of these thorny issues. But it is important to apply libertarian property rights theory, i.e. judgments in various areas on who is a criminal and who is a victim, to advancing technology. So on these matters I still have a relatively open mind. Before the Iron Door closes, I cheerfully invite libertarian theorists and high-tech mavens to submit papers, on any or all sides of this problem, for possible publication in the Libertarian Forum. Is there computer crime? Are VCR and satellite dish owners criminals? Please send in your discussions, and help advance libertarian theory.”

—  Murray N. Rothbard, High Tech ‘Crime’: A Call for Papers, The Libertarian Forum, Vol. 17, No. 7-8, July-August, 1983.

Kinsella and Tucker have done just that. Advance libertarian theory. I don’t think it takes any kind of stretch to come to the conclusion that Rothbard would have been persuaded by the new arguments and clarifications of old ones. Especially given sentiment against the Draconian measures suggested / adopted by statist policy makers in trying to clamp down on “intellectual property”. The VCR example is also rather analogous to the music industry and mp3 files re: ripping from radio, online streaming and torrents. “I should be able to tape a movie or other program off my own TV set [computer]. If the TV or movie people [music industry] don’t like it, they should jolly well have to lump it.”

Wenzel’s appeals to authority aren’t even good. I do wonder though how he would respond to the above. Maybe that is the only way he’ll change his tune? In any case: where’s the intellectual honesty at Bob? Hopefully you will bounce back from this with some new found humility and a different take on the issue.

Update:

In yet another post, Understanding Scarcity with a Little Help from Ludwig von Mises, Wenzel haplessly attempts to salvage his botched understanding of the scarcity issue. Here is a comment I added, and append here as well (in part, in case the comment does not get approved):

Bob, your analysis is deeply flawed.

Consider your comments about cash flow: this shows that you think a company has a property right in the money owned by potential customers; that is what the dispute is about. But they own their money.

As the quote I provided above from Mises shows, knowledge, information, etc. is not a scarce good, not a scarce means of action. To repeat: from p. 128 of Human Action:

“A thing rendering such unlimited services is, for instance, the knowledge of the causal relation implied. The formula, the recipe that teaches us 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 he must choose between the use-value of a known formula and any other useful thing.”

Recipes, knowledge, information, ideas, Bob, are not economic goods, that is, not scarce means of action. Mises is explicit here, and dead on.

Rather: information, knowledge, recipes play a different role in human action than scarce means do. The latter are rivalrous, scarce resources that can be employed by an actor to causally affect future outcomes so as to achieve some goal of the actor; the knowledge—of possible ends, of how to employ means, etc.—guides the actor’s choice of ends, and means, but is not itself a scarce means.

Mises of course recognizes this, that information is a guide to action and plays a different role than scarce means do in the praxeological structure of human action itself. As he puts it (in my favorite of his books, The Ultimate Foundation of Economic Science:

“Action is purposive conduct. It is not simply behavior, but behavior begot by judgments of value, aiming at a definite end and guided by ideas concerning the suitability or unsuitability of definite means.”

(I discuss this in Intellectual Property and the Structure of Human Action.)

This is uncontroversial among Austrians. See, e.g., Guido Hülsmann’s “Knowledge, Judgment, and the Use of Property,” p. 43-44, stating:

“However, there is still a more fundamental condition of action. This is the fact that knowledge as such is never scarce…. In any case, as conditions do not cease to change, we constantly have to acquire new knowledge if only to conserve our present standard of living. However, economic science does not have to deal with the factors conditioning the acquisition of knowledge. … For the moment we are entirely unconcerned with the creation of knowledge, that is, of judgments that prove to be successful in action. We do not bother about the way we reduce our sheer ignorance. …

“The quantities of means we can dispose of—our property—are always limited. Thus, choice implies that some of our ends must remain unfulfilled. We steadily run the danger of pursuing ends that are less important than the ends that could have been pursued. We have to choose the supposedly most important action, though what we choose is how we use our property. Action means to employ our property in the pursuit of what appears to be the most important ends.

“In choosing the most important action we implicitly select some parts of our technological knowledge for application. In other terms, our choices imply a judgment upon the importance of our technological knowledge under the expected conditions of our action. This economic judgment is our only concern. Technological knowledge as such is immaterial for economics.”

See also Rothbard, in Man, Economy and State, ch. 1, sec. 8:

It might be asserted that another way of increasing his pro­duction is to improve his technical knowledge of how to produce the desired goods—to improve his recipes. A recipe, however, can only set outer limits on his increases in production; the actual increases can be accomplished solely by an increase in the sup­ply of productive factors. Thus, suppose that Robinson Crusoe lands, without equipment, on a desert island. He may be a com­petent engineer and have full knowledge of the necessary proc­esses involved in constructing a mansion for himself. But with­out the necessary supply of factors available, this knowledge could not suffice to construct the mansion.

Notice how it is uncontroversial to these Austrians that knowledge plays a different role in human action than do scarce means. They all recognize that  all action employs means; and all action is guided by knowledge and information (technological knowledge, knowledge of causal laws, recipes, etc.).

Jeff Tucker and I discuss this at some length in Goods, Scarce and Nonscarce. Some of the following is adapted from that:

Austrians have always, if sometimes only implicitly, recognized the existence of the nonscarce good, which is precisely the good in question with regard to intellectual property. Menger’s 1871 book, Principles of Economics, begins with the definition of a good that excludes the concern over scarcity. Something is a good, in Menger’s view, when it is causally capable of satisfying a human need. This is a very broad definition.

For something to be a good, said Menger, there must be human knowledge of this cause-and-effect connection, along with command over the thing (the scarce means, the economic good) so that the relationship between cause and effect can be realized.

Mises recognized the subclass of goods called “free goods” — something that is “available in superfluous abundance which man does not need to economize.” (Human Action, p. 93.) Mises says that though they are “not the object of any action” they are useful and even essential for production. (p. 128) Giving the example of a recipe, he writes that these free goods, or nonscarce goods, render “unlimited services.” A free good “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.”

This does not mean knowledge, recipes, nonscarce goods are unimportant: “These designs — the recipes, the formulas, the ideologies — are the primary thing; they transform the original factors — both human and nonhuman — into means.” (p. 142)

Ideas and information are nonscarce goods but they serve as guides to action in the use of scarce means, to transform scarce things in the world to achieve the actor’s desired end. As I noted above, this is why Mises wrote, “Action is purposive conduct. It is not simply behavior, but behavior begot by judgments of value, aiming at a definite end and guided by ideas concerning the suitability or unsuitability of definite means.” [Ultimate Foundation of Economic Science, p. 34 (emphasis added)]

Rothbard elaborated: “There is another unique type of factor of production that is indispensable in every stage of every production process. This is the ‘technological idea’.” [Man, Economy and State, p. 75] Rothbard points out that once the idea comes about, it no longer has to be produced. It is an “unlimited factor of production that never wears out or needs to be economized by human action.”

This is precisely what a nonfinite, nonscarce good, like an idea or knowledge or recipe, is: an unlimited factor of production.

Fetter also glimpses that ideas themselves are nonscarce goods:

The gain to the general welfare, however, can result only when the new inventions are actually embodied in machines. An invention is only an immaterial idea, and the machines in which inventions are incorporated are wealth which has a capital value. Further, a gain can result only when the usance of the machines is not so high as to absorb the larger part of the gain in efficiency. Not all labor-saving inventions call for more elaborate or more costly machines. Some are merely better methods, and require no more equipment — or even less. Some of them are simpler and less costly than the forms they displace. These (unless patented) are free goods, uplifting the efficiency of production “without money and without price.”[22]

***

The upshot of all this is that causally efficacious means are real things in the world that help to change what would have been, to achieve the ends sought by the actor. Means are scarce resources. As Mises writes in Human Action,

“Means are necessarily always limited, i.e., scarce with regard to the services for which man wants to use them.”

To have successful action, then, one must have knowledge about causal laws to know which means to employ, and one must have the ability to employ the means causally suitable to help achieve the goal sought. The scarce resources employed as means need to be owned by the actor, because by their nature as scarce resources only one person may use them. Notice, however, that this is not true of the ideas, knowledge and information that guides the choice of means. The actor need not “own” such information, since he can use this information even if thousands of other people also use this information to guide their own actions. As Professor Hoppe has observed, ” in order to have a thought you must have property rights over your body. That doesn’t imply that you own your thoughts. The thoughts can be used by anybody who is capable of understanding them.”

In other words, if some other person is using a given means, I am unable to use that means to accomplish my desired goal. But if some other person is also informed by the same ideas that I have, I am not hindered in acting. This is the reason why it makes no sense for there to be property rights in information.

Material progress is made over time in human society because information is not scarce and can be infinitely multiplied, learned, taught, and built on. The more patterns, recipes, causal laws that are known add to the stock of knowledge available to actors, and acts as a greater and greater wealth multiplier by allowing actors to engage in ever more efficient and productive action. (It is a good thing that ideas are infinitely reproducible, not a bad thing; there is no need to impose artificial scarcity on these things to make them more like scarce resources; see IP and Artificial Scarcity.)

As I wrote in “Intellectual Property and Libertarianism“:

This is not to deny the importance of knowledge, or creation and innovation. Action, in addition to employing scarce owned means, may also be informed by technical knowledge of causal laws or other practical information. To be sure, creation is an important means of increasing wealth. As Hoppe has observed, “One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways.” While production or creation may be a means of gaining “wealth,” it is not an independent source of ownership or rights. Production is not the creation of new matter; it is the transformation of things from one form to another — the transformation of things someone already owns, either the producer or someone else.

Granting property rights in scarce resources, but not in ideas, is precisely what is needed to permit successful action as well as societal progress and prosperity.

For more on some of these ideas, see the following articles and posts:  Intellectual Freedom and Learning Versus Patent and Copyright, Ideas are Free, Knowledge is Power, Goods, Scarce and Nonscarce.

One more note. Wenzel repeats a common fallacy. This is the idea that if you can sell something, that implies you own it (a converse fallacy is the idea that if own something, you can sell it—Walter Block relies on this in his defense of body-alienability, as discussed in KOL004 | Interview with Walter Block on Voluntary Slavery). Wenzel relies on the first fallacy in his argument that when you sell information (like the Drudge formula he allegedly has) and receive money for it, this shows that the “thing” you “sold”—the information—has “value” and is an “ownable thing”. After all, how can you trade, or sell, something unless you own it?

This a mistake repeatedly made by libertarians who use imprecise and overly metaphorical language and who have an insufficiently clear understanding of the basics of libertarian property rights and, most importantly, contract theory.  They should review Rothbard’s and Evers’s title-transfer theory of contract, which I elaborate on in A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability. I discuss this fallacy in that article, where I point out that some contracts are exchanges of title to owned things (an apple for a pear, a dollar for a steak), but some are only one-way title transfers, as when you give someone a gift, or when you bet and thus conditionally transfer money to someone based on some uncertain future condition that serves as the trigger to the title transfer—or when you pay money to someone to induce them to perform some desired action (labor, service, employment, disclosing information). In these latter cases there is only one title transfer: from the owner of the money to the person who performs the desired action the performance of which triggers the transfer of the money. People speak of this as a “sale” of labor or of information, but only by analogy to the traditional bilateral title exchange situation. What they are saying is that the action performed by the “seller” is the desired end of the “buyer”. But the “seller” of “labor” does not literally own his labor or his actions or the information he divulges. Rather, he owns his body and is thus able to decide to engage in or refrain from certain actions, including disclosing private knowledge, and thus he can use this to induce the guy who desires access to the information to conditionally transfer title to some sum of money—conditioned on the performance of some action by the other guy. This is not complicated; in fact it’s very simple. But calling it a “sale” of a service, or information (which is just another way of explaining the object or end the payer desires) makes people think of a standard “sale” where title to money is exchange for title to some owned good, and thus confuses them and muddies the water. For more on this, see my post The “If you own something, that implies that you can sell it; if you sell something, that implies you must own it first” Fallacies. See also KOL 037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory; Lecture 6 of my “Libertarian Legal Theory”  Mises Academy Course, at slide 16; and Lecture 5 of my “Libertarian Controversies” Mises Academy Course, at slide 15.

In addition to my 6-week Mises Academy course, Rethinking Intellectual Property, I also provide a pretty exhaustive refutation of just about every major pro-IP argument in Intellectual Nonsense: Fallacious Arguments for IP.

Update:

See Mathew Alexander’s excellent post-mortem in Intellectual Property and the Great “Debate”

From my post in a FaceBook discussion:

Some of my friends have admonished me for the Larouchie comments Wenzel is pretending to go crazy about. I do not disagree that it is possible it was a tactical error to even debate him, or take my approach in continuing to engage him.

But I have not been persuaded that any of my comments to or about him were wrong (though I am open to this). Let me give some context.

Wenzel appeared out of nowhere in 2008–2009 or so. He starts attacking Jeff Tucker and my IP comments—implying we are “communists” etc. Implying he has a “book” on IP coming out (and even a book on libertarian theory). He does this while cozying up to Mises Institute people and people interested in Austrian economics. He sets himself up as a big economic prognosticator, though no one had ever heard of the guy before. Is this even his original name? Where did he come from? No one knows.

So this no-name non-scholar, a kind of loud-mouth crude braggart self-promoting showboat type, more akin to Bill O’Reilly or Morton Downey Jr., starts loudly braying and attacking me and Tucker. It was obvious to me then, and remains obvious now—in fact it’s more obvious now, after our “debate”—that he has no coherent theory of libertarianism or of IP. He could not even present one in our debate, for which he needed 2–3 months to “prepare.” I half-suspect he did it all as a ruse to sell his ridiculous Drudge formula, which is odd in itself that he would want to hawk $100 or $500 sales of a formula that he can only sell a small amount of, all the while claiming to be rich (offering to pay $500k if people can prove he is not a Larouchie) and while claiming to charge $750 per 10 minutes for a phone consultation (that amounts to $4500 per hour. yeahhhh…. right).

The guys is an obvious blowhard, oddball, and loose cannon. A sensationalist, and not an intellectual or scholar.

A few years ago at Mises Institute in Auburn I was sitting alone in the bar, on my iPad. Wenzel walks up to me and the first thing he says is a snarky, snide remark about me using an Apple product—after all I must be a hypocrite if I use a product from a company that uses copyright, right? So I smiled, changed the subject and bought him a drink. We had a long conversation, some nice, some of which he revealed utterly bizarre things that made me question his … perspectives on life, let’s just say (and which I did not mention in our debate, as they are irrelevant).

Then his attacks continue on me and Tucker. He invited Tucker to debate him and Jeff (probalby wisely) declined. Wenzel then makes some rude, smartass comment that Tucker was a dumbass follower of mine but that at least I had a real theory to be contended with. This is a bizarre slight on Tucker, from whom I have learned a lot, but in any case I offered to “discuss” with him this issue. Within an hour he was trumpeting and promoting it though we had not worked out ground rules yet, and he was asking for a month or two. I guess, to prepare.

So the guy is some outsider, a nobody, spoiling for a fight, looking for traffic. A blustering clown, really. In response to some queries abou this on FB I said what I think (I never mince words): that he would weasel out of the debate like a worm, and that he was a clown. If you listen to his interviews you’ll see what I mean. He is untalented, rude, and a hack. He is a clown. And as for the weasel comment—partly I did that so he could not back down. In any case, in the end he did as I predicted—he weaseled out of presenting a real case for IP or having a real debate about it by wasting time asking why he is a clown; in our “debate” he never did present a coherent view of IP and even today is still grasping for some coherent theory.

Honestly it’s curious why he would even want a “debate.” Why would he debate me if he had no theory? Why would he even care? Why would he be certain that I am wrong? To get attention, obviously. Which he almost admits in subsequent posts bragging about how the debate increased his traffic. This guy is an unscholarly, crude oaf. He has the temerity to cozy up to the Mises Institute and then start attackin me and Jeff Tucker (and implicitly all the senior scholars and other Austro-libertarians who have learned what a horrible thing IP is) and now even the Institute’s leading intellectual and Rothbard’s closest intellectual associate, Hans-Hermann Hoppe—and in the name of Rothbard, to make it worse. In our debate Wenzel violated our pre-agreed upon rules; he was incivil; he did not give me equal time; he talked over me repeatedly; he evaded the issues and failed to answer questions and present a coherent case for IP.

I gave this guys a long leash. I was polite to him. I ignored his earlier slights. I bought him a drink, and talked with him in person. I agreed to a discussion about IP with him, on the terms that we have a civil discussion as equals—not his normal clownish, amateur, embarrassingly oafish “interview” style (read: interrogation). He promoted it to high heaven, then was rude and blustery and loud and ridiculous. He covered up his intellectual and scholarly deficiencies with ridiculous bluster and outrageous rudeness. In response I sometimes laughed in bemusement, in utter amazement that a specimen like him even exists in the real world.  And I sometimes mocked him, and toyed with him, since every time I tried to make a serious point I was met with his bizarre bluster and intellectual incompetence. Was it a tactical mistake to engage this mental troll? I don’t know. Was it immoral to mock him and not treat him with respect? I don’t think so. Does he deserve respect? This guy attacked me, Tucker, now Hoppe, and libertarianism itself (by promoting IP). It is rich that he plays the poor victim after engaging in this outrageous stuff.

In any case: he has not (and cannot) demonstrated that IP in any form can be justified.

I am actually surprised any Austro-libertarians take this guy seriously. I never have. No one I know that I respect ever has.

***

For background information on the views I expressed in the podcast, see:

• C4SIF resources;
• Intellectual Property Rights as Negative Servitudes,
• KOL 037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory;
• Hume on Intellectual Property and the Problematic “Labor” Metaphor;
• Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”
• Locke, Smith, Marx and the Labor Theory of Value
• The Overwhelming Empirical Case Against Patent and Copyright
• Against Intellectual Property
• KOL 037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory
• my 6-week Mises Academy course, Rethinking Intellectual Property
•  Intellectual Nonsense: Fallacious Arguments for IP.

For posts related to/leading up to this debate, see:

• Kinsella, Kinsella vs. Wenzel on IP
• Kinsella, IP Debate with Wenzel Looms
• Kinsella, “Oh yeah? How would like it if I copy and publish your book under my name?!”: On IP Hypocrisy and Calling the Smartasses’ Bluffs
• Wenzel, A “Bullshit” Response from Jeffrey Tucker
• Wenzel, Mises Institute: Do As They Say, Not As They Do?
• Kinsella, Wenzel on Copyright and Patent
• Wenzel, Stephan Kinsella Taking the High Road
• Wenzel, The Economic Recovery: Washington’s Big Lie (Part 2)
• Wenzel, A “Bullshit” Response from Jeffrey Tucker
• Kinsella, “Oh yeah? How would like it if I copy and publish your book under my name?!”: On IP Hypocrisy and Calling the Smartasses’ Bluffs
• Wenzel, Examining Jeff Tucker Intellectual Property Theory
• Wenzel, Mises Institute: Do As They Say, Not As They Do?
• Wenzel, Jeff Tucker Declines to be Interviewed on the Robert Wenzel Show
• Wenzel, Naked Trademark Battle
• Wenzel, Examining Jeff Tucker Intellectual Property Theory

• Wenzel, Stephan Kinsella versus Barack Obama On Copyright Protection

1. Note: I failed to record the audio at my end until 1:07:10, but my audio quality was better. So I spliced in the better second half from my recording. So starting at 1:07:10 you can hear better audio quality at my end, and no worse at Wenzel’s. [↩]