KOL013 | “Intellectual Property and Libertarianism,” Mises University 2009

um I did change the title of my talk to intellectual property and

libertarianism um like most of you I have a strong interest in the free market and Austrian economics and like

many if not most of you I have also long been deeply interested in libertarianism

and libertarian Theory and philosophy in general and perhaps for this reason I find the links and connections between

Austrian economics and libertarianism fascinating what links are there well

for one because a economics as you’re discovering is such a sound and Powerful way of

understanding the implications of Human Action Libertarians who are knowledgeable in Austrian economics tend

to be more principled Libertarians and to have better arguments and because people tend to be

decent and civilized and they want prosperity and peace once they understand basic economics they tend to

Veer it in a Libertarian Direction they realize that free markets and private property rights support these values and

goals and this is probably the reason that there’s a tendency for austrians to be Libertarians mises himself the

greatest of Austrian economists was also a great liberal thinker and this is one reason I personally believe economic

education is so important because economically literate people tend to be more

libertarian and economics itself in analyzing market exchange can benefit from libertarian insights on property

rights since the notion of market exchange is exchange of owned

property and it is political philosophy which establishes what ownership rights there should

be so for these reasons I often describe myself as an Ostro Anarchist

libertarian now in libertarian Theory my personal strong interest has always been and remains basic rights Theory what are

our rights and how do we show this and there are also many fascinating related areas of libertarian legal Theory such

as the theory of contracts causation and responsibility and so on now

intellectual property in particular patent in copyright law was never my strongest interest from a theoretical

point of view and yet here I am um it turns out that there are not many austro Anarchist libertarian patent

attorneys out there um but ever since I was a Libertarian say from around age 18 which

is about 25 years ago now um the IP issue always nagged at me um I was never

satisfied with Ein Ran’s justifications for it her argument seems to be a bizarre mixture of

utilitarianism with some over brought deification of the Creator not not the Creator up there but man the Creator in

all caps so I kept trying to find a better justification for IP and I kept doing

this even though I hit roadblocks I kept trying this hunting for a way to justify IP even after I started practicing

patent law in 1992 now many of you may have at one point abandoned minarchism in favor of

Anarchy when you finally realize that even limited government even if it’s possible which I doubt is

libertarian and it was like this also for me with respect to IP I finally realized that the reason I couldn’t find

a way to justify IP was because it’s un libertarian um we Libertarians already

realize that many so-called intellectual rights such as the right to

reputation protected by defamation law is illegitimate why would we believe that artificial rights that are solely

the product of legislation that’s decrees of the fake law making wing of a

criminal state would be valid sure you can point to hundreds of obviously

ridiculous patents hundreds of obviously outrageous abuses of the system there are absurd patents on ways of swinging

faster than light communication there are 100 million dollar or billion dollar uh uh patent lawsuits almost every year

there are millions of dollars in Damages awarded against consumers for downloading a few songs the terms of

patents uh especially copyrights or ridiculously long and arbitrary and copyright is even received

automatically even if you don’t apply for it and it’s very sticky and almost impossible to get rid

of even if you don’t want it and it’s also true that the patent office is an inefficient government bureaucracy

bureaucracy and the laws are ambiguous and vague so there are plenty of Fairly mainstream or understandable reasons to

oppose the current IP system or abuses in the system and to Advocate reform

which is pretty common but I became and remain opposed not just to ridiculous

patents and outrageous lawsuits based on them but to patent and copyright in principle root and

Branch I mentioned before I was never the most passionate about IP Theory but what I found in writing on this and

thinking about it is that understanding how to view IP requires a thoroughly principled coherent libertarian

understanding of many areas of libertarian Theory and informed by Austrian economics it requires a clear

understanding of areas such as the nature and justification of property rights homesteading contract theory and

fraud so what I’ll do now is do a brief sketch briefly sketch out my view of

what the libertarian framework is and then return to IP and U what I’m going to speak about now is out elaborated in

further detail in my chapter in the book that was published last night the uh Hans hoppas Fest shft if uh if you’d

like to read up on the following in more detail so what is the essence of our

libertarianism it’s been said that libertarianism is about individual rights it’s about property rights the

free market capitalism Justice the non-aggression principle or Axiom but most of these terms don’t seem

to be appropriate capitalism in the free market describe the catallactic

conditions that arise or permitted on on the libertarian Society but not really all of the libertarian

Society what about the ideas of individual rights and Justice and aggression is this what uh defines

libertarianism well the problem with these terms is they’re derivative they’re all defined in terms of property

rights as maray rothbart explained All rights are property rights and so so

it’s not about individual rights unless you understand them as property rights Justice is giving someone his due but

what your due is depends upon what your rights are because what you your rights are determines what you’re owed and

that’s what you’re due so Justice is also a derivative of the concept of property rights the non-aggression

principle itself is also dependent on property rights if you hit me it’s aggression because I have a property

right in my body if I take from you an apple that you’re holding it’s trespass or aggression only if or because you own

the Apple if it’s my Apple it’s not trespass so to identify Act of

aggression is to implicitly assign a corresponding property right in the victim of the act of aggression this is

why it is better to refer in my opinion to the non-aggression principle instead of the non-aggression

axium so we have property rights left is property rights what

distinguishes libertarianism from other other political philosophies well not

not merely belief in property rights why is this a property right is merely the

exclusive right to control a scarce resource property rights just specify

who owns or who has the right to control scarce resources but any given system of

property rights in any system assigns a particular owner to every scarce

resource everyone has some view of property rights every individual every political Theory and system none of the

various forms of socialism really deny property rights each form of Socialism

specifies an owner for every scarce resource if the state nationalizes an industry it is asserting ownership of

these means of production if the state taxes you it is implicitly asserting ownership of the funds

taken right if my land is transferred to a private developer by imminent domain statutes the developer is now the

owner the legal system that permits this is specifying who the owner of my land is it is now the the new shopping center

if the law allows a recipient of racial discrimination to sue his employer for a sum of money now he’s the he’s the owner

of the money so every system does specify owners even the private Thief

who steals something of yours is implicitly acting on the maximum that he has the right to control it that he is

its owner he doesn’t deny property rights he just differs from the libertarian as to who the owner

is in fact as Adam Smith observed if there’s quote if there is any society among robbers and murderers they must at

least according to this tried observation abstain from robbing and murdering one another end quote so

protection of and respect for property rights is not unique to libertarianism what is distinctive about libertarianism

is its particular property assignment rules our view as to who the owner is of

each contestable resource and how we determine this so what are the

libertarian property assignment rules that distinguish our philosophy from others well first it’s important to

recogn I that there are two types of scarce resources human bodies and

external resources found in the world we need to consider the property assignment rules for these two cases

separately first the body of course your body is a scarce Resource as Professor

haa has explained even in a paradise like land of of superabundance of goods

quote every person’s physical body would still be a scarce resource and thus the

need for the establishment of property rules in other words rules regarding people’s bodies would exist one is not

used to thinking of One’s Own body in terms of a scarce good but in Imagining the most ideal situation one could ever

hope for the Garden of Eden it becomes possible to realize that one’s body is indeed the Prototype of a scarce good

for the use of which property rights in other words the rights of exclusive ownership somehow have to be established

in order to avoid clashes end quote so in other words every person has and controls and is identified and

associated with a unique human body which is a scarce resource so the libertarian view is very

simple each person completely owns his own body at least initially until something

changes this such as the commission of an act of crime by which you may forfeit some rights in your

body now it is true that some people object to the uh idea that self-

ownership they say that it makes no sense it’s an incoherent idea you are yourself you can’t own yourself in my

opinion this is just a verbal word play if a wants to have sex with B’s

body whose decision is it who has the right to decide the right to control B’s

body is it b or is it a if it’s a then a owns be’s body and has the right to

control it as a Master with a slave if it is B then B owns B’s body B

is a self- owner and this is the libertarian view each person is a self- owner and of course this is what is

implied in the non-aggression principle that’s applied to bodies as an ran famously said so long as men desire to

live together no man May initiate no man may start the use of physical Force against others now to initiate Force

means to invade the borders of someone’s body to use their body without permission or consent but this implies

that the person has the right to control his body otherwise his permission would not be needed and it would not be

aggression to invade or use his body without his consent so the libertarian

property assignment rules for bodies is each person owns his body and this rule might seem obvious and especially to us

but it is really held only by Libertarians non- Libertarians do not believe in complete self-ownership

yes they usually grant that each person has some rights in his own body but they believe that each person is partially

owned by some other person or entity usually the state in other words we are

the only ones who oppose slavery if you are a non- Libertarian you are in favor of at least partial

slavery this partial slavery is implicit in state actions and laws such as taxation conscription and drug

prohibitions for example the libertarian says that each person is the full owner of his body he has the right to control

his body to decide whether or not to join an army to ingest narcotics and so on but those who believe in these types

of laws believe the state is at least a partial owner of the body of the people

subject to those laws they don’t like to say they believe in slavery but they do

the liberal wants tax evaders put in jail or Enslaved the conservative wants marijuana users

enslaved so we Libertarians believe in self- ownership everyone else Advocates some form of

slavery now I don’t here have time to go into to a justification of this defense

but I am attempting to describe what our libertarian view is so what about external

objects the key difference is unlike our bodies external things are initially

unowned they exist in the state of nature with no owner and the libertarian view here is

also very simple the owner of a given scarce resource is the person who first

homesteads it or someone who can trace his title back contract actually to the

Homesteader and our view is that this person has a better claim to the property than anyone else who wants the

property everyone else is a late Comer they come after they’re a latecomer with respect to the first possessor or the

current owner and if you think about it the latecomer rule is actually implied in

the very idea of owning property because if an earlier possessor of property did not have a better claim

than some second person who wants to take the property from him why does the second person person have a better claim

than a third person who comes later still in other words to deny the crucial significance of what HOA calls the prior

later distinction is to deny property rights altogether every non- libertarian view

is thus incoherent because it presupposes the prior later distinction when it assigns ownership to a given

person because it says that the person has a better claim than late-coming

claimants but it acts contrary to this principle whenever it takes property from the the original Homestead and

assigns it to some latecomer but what is relevant for our purposes is describing what the

libertarian position is not pointing out the incoherence of competing views so in

some the libertarian position on property rights is that in any dispute or contest over any particular scarce

resource the original Homesteader the person who appropriated the resource from its unknown status by ordering or

transforming it or his descendant in title has a better claim than

latecomers better claim than those who did not appropriate the scarce resource so now let’s return to

IP given this libertarian understanding of property rights the idea of copyright

and patent are simply indefensible there are other types of intellectual property trademarks Trade

Secrets special rights like boat hole designs and semiconductor Mas work protection

um I will focus on copyright and patent here and I’m going to briefly just say what they are a patent is a grant by the

state that permits the patentee person who receives the grant to use the

state’s court system to prohibit someone someone else from using their own property in certain ways from

reconfiguring the property according to a certain pattern or design described in the patent for example or from using the

property in a certain sequence of steps described in the patent a copyright is a

grant by the state that permits the copyright holder to prevent others from

using their own ink and paper for example in certain ways now in both cases the state is

assigning to a a right to control B’s property a can tell B not to do certain

things with B’s own property and this clearly cannot be justified under libertarian principles

be already owns his property with respect respect to him a is a latecomer

b is the one who appropriated the property not a it is too late for a to Homestead B’s property B already did

that the resource is no longer unowned so a clear understanding of libertarian

property rights can easily show that IP is clearly unjustified so why is this a contested

issue why do some Libertarians still believe in intellectual property rights well one reason is many of them

approached libertarianism from a utilitarian point of view instead of a principled one these so-called

Libertarians are in favor of laws that increase overall utility or wealth and

they believe the state’s propaganda that state granted IP rights actually do increase overall

wealth now the utilitarian perspective is bad enough because all sorts of terrible policies could be justified

this way why not take half of Bill Gates money and give it to the poor after all

wouldn’t the sum total of the welfare gains of the thousands of enriched poor people be far greater than the slight

decline in Bill Bill Gates’s utility after after all he would still be a

billionaire if a man is extremely desperate for sex couldn’t his gain be greater than the loss suffered by some

rape victims such as a prostitute for example so by utilitarian reasoning you

can get some truly un libertarian results but even if we ignore the ethical problems with utilitarianism and

the methodological problems that which Austrian economics helps to highlight it is bizarre that

Libertarians are still in favor of of Ip even on utilitarian grounds when they have not demonstrated that IP does

increase overall wealth even by their standards there is no doubt that the IP system imposes significant costs on the

economy in money terms alone not to mention costs in terms of

Liberty the argument that the incentive provided by IP law stimulates additional

Innovation and creativity has not even been proven it is possible that the patent system cost billions of dollars

and attorney fees and uh defensive maneuvering and things like this and decreases Innovation to boot

adding a second cost to it but even if we assume that the patent and copyright system do stimulate extra valuable

marginal Innovation and creativity it has still not been shown that the value of this extra creativity

is greater than the cost of the patent [Applause] system if you ask an advocate of Ip well

how do you know there’s a net gain you’re just met with silence this is especially true of patent attorneys they

have okay um they cannot point to any study that supports

them so far as I’ve been able to tell every study that I’ve ever seen that attempts to tally the cost and benefits

of copyright or patent law either concludes that uh the laws cost more than their

Worth or that they actually reduce Innovation or the study is inconclusive there are no studies that I’m aware of

showing a net gain they’re only repetitions of State propaganda anyone who buys into

utilitarianism should based upon the evidence available be against

IP now another reason that many many Libertarians favor intellectual property

is because of confusion about how how property rights are assigned they believe you can come to own things in

three ways and in the literature you’ll see this this repeated on occasion you can come to own something by

homesteading it or by contractual exchange or by creating it so the

mistake here is in assuming that creation is a third independent source of

ownership it’s easy to see that it’s not creation is not is neither necessary nor

sufficient for ownership for example if you carve a statue in a big hunk of

marble that you own you own the resulting creation the statue but why

because you already own the marble you’ve just transformed what you own

so you owned it already so the idea of creation being a source of property rights is not necessary in this case to

give you ownership of the resulting statue on the other hand suppose you steal your neighbor’s marble and you

carve a statue in it you do you not do not own the resulting statue so it’s not sufficient if you’re

an employee and you’re paid to carve a statue and the employer’s hunk of marble

you still don’t own it still not

sufficient so if you Homestead an unowned resource like a field let’s say

and you own it you own it because you’re the first user and you have a better claim than anyone that comes

after when you establish visible borders you Homestead the thing so creation is

not necessary here either now some have argued that homesteading involves your

labor and mental effort and therefore this is an active creation Now I think this is torturing the language a little

bit um even if you do this and you say that transforming or EMB Bering an

unknown scarce resource is a type of creation this only means that creativity plays a role in the homesteading of

unowned scarce resources it would never imply that thinking of a creative way to use your own property

right let you re Homestead already owned property owned by other people okay now it is true that creation

is an important means of increasing wealth and this is this is I think what confuses some people as Professor haa

has observed quote one can acquire and increase wealth through either through

homesteading production and contractual exchange or by expropriating and

exploiting homesteaders producers and contractual exchangers there are no other ways now production or creativity

or creating something it is a means of gaining wealth but it’s not an independent source of ownership of

Rights production is not the creation of new matter or new things that can be

owned production is the transformation of things from one form to another

things that you already own otherwise you would not have the right to transform them so using your labor and

your creativity to transform your property into more valuable finished products gives you greater wealth but

not additional property rights so the idea that you own anything

you create is a confusion and it does not justify

IP now the other justifications offered for IP is that some form of copyright or possibly

patent could be created by some kind of contractual trick for example by the seller stamping the product he sells to

a buyer on the condition that it not be copied um it’s argued that this could

create a simulation or a subset or a type of patent or copyright system um

and however this is an example of another way that a sound understanding of coherent Austrian influenced and

inspired libertarian principles can help you keep straight on this for example

most people that write this way have a sort of vague understanding of the proper theory of contract they just sort

of buy into the mainstream idea that you can bind Yourself by promising to do something but the Ostro libertarian view

is the title transfer theory of contract espoused by williamsman Evers elaborated by Murray rothbart and under this Theory

which is implied in the very idea that property rights are rights and scarce resources the owner of a scarce resource

has the right to control it and do what he wants with it one of those things is to sell the property to someone else to

give it away to someone else contracts are simply networks or webs of

contractual exchanges transferring my ownership of this scarce resource to someone else maybe in exchange for them

doing something for me or in exchange for them transferring their property to me so the problem is that if you try to

use contract it only binds the two parties to the contract and it doesn’t even

really bind them it just transfers title between them but IP to be effective has

to be good against the world not against just the two parties to a contract but against against third parties as well so

for example uh if Brown sees a mouse trap that green has purchased let’s

assume green is obligated somehow to pay a million dollars damages to the seller if he reveals the secret or if he copies

it well if Brown sees that mouse trap uh uh uh even if green has agreed to to

keep it secret Brown never did agree with the seller there’s no privity of contract we would say or there’s no

contract between them so there’s really no way to ens snare third Parties by using a contract

scheme so the contract approach fails as well and so in closing let me mention

one other final problem with intellectual property and this is yet another one that is informed by austral libertarian insights such as the

insights about the uh problems with legislation as a method of making law in

addition to the fact that legislation requires a state and the thing is that especially with

patent and copyright law it is literally inconceivable to imagine these things arising on a free market they are purely

creatures of legislation and state action legislation requires a

legislature and it requires which requires a state so in other words the anarcho libertarian the principal

libertarian cannot support IP in any case with that I’ll conclude my talk and

I am open for questions [Applause]

yes I just want a little comment I actually had a big argument on the Forum last February on this topic I was

arguing with some people some minist I’m an anarchist there was some minist on the Ron Paul forum and they were saying

that like uh you needed to have IP or else basically Noah would invest that x

amount for R&D and I said like from a prac theological point of view that made

no sense because you’re always going to pursue uh a profitable idea no matter whether you have a violent Monopoly on

that idea and that doesn’t even go into other stuff like open source other avenues I just thought i’ thr that out

there yeah so the question in the comment was that um some minarchist uh

that the questioner discussed with u wanted to know what incentive there would be to produce in the absence of a

state granted Monopoly and um I think there’s several ways to approach that kind of question

the the principled approach is that that’s irrelevant uh I mean the goal of law is to protect property rights and

it’s clear that IP trespasses against property rights so that’s the end of the story as a principal point of view um

for those who approach the wonder about consequences they’re curious about consequences and how the free market

would um um function in the absence of these laws or for utilitarians who base

their standards on that well first there is an excellent book it’s called against intellectual Monopoly by um McKelly

balen and David LaVine which addresses a lot of the more practical consequences like this and discusses over and over

again how private uh Alternatives could um U would flourish in the absence of

these laws and how pretty much most Innovation would be even better um but I

would argue that you know um even if the Assumption of the question is correct and that IP laws do

say add some extra stimulus to innovate well how much is enough right there’s

always an arbitrary cut off I mean we have a 100 and something year copyright term and a roughly 17year patent term

now well we could make it a thousand years right so these guys don’t have and

or we could increase the penalties we can impose the death penalty for violating copyright and patent I me if

they really are serious about doing anything regardless of the cost to stimulate Innovation uh why don’t they

advocate further it’s sort of like the minimum wage you know that people that think the minimum wage is a good idea why don’t they why don’t they Advocate

$1,000 minimum wage right so

yes um the critique of IP doesn’t uh uh

concern the electromatics M Spectrum I think that that is more the application of the basic libertarian principle of

homesteading I so I think that is another um uh that does require some more work because that’s sort of a

difficult tricky issue there there there there are arguments on both sides that

um that the electromagnetic spectrum is a is a scarce is not a scarce resource really that when you perturb the EM

spectrum by generating a signal um you’re just sending it out there and if someone else does it 2 miles away and

interferes with your signal then you’re both just doing something you have the right to do uh others see the Spectrum

and I I I lean this way like an airway or like an a path or a ride of way um as

a scarce resource because by its nature it can only be used by one person at a time one person’s use can exclude the

use of another person um and there is a a pretty good book on this by the way by David Kelly and Roger donway which is

fairly old by now it’s called Les Le parlor freedom in the electronic

spectrum and it talks about how in the common law before the FCC came about uh

there were uh common law recognition of airwave rights starting to be recognized

before the FCC basically monopolized the entire field yes ma’am are your

first owner principle does that mean that all Americans have a duty to give

this land back to Native Americans and so forth everybody else I don’t understand um in my in my opinion uh uh

if you own property and someone else can show a better title to it then they should get the property so if a

particular Native American can trace his claim back to his ancestor and show that his land was taken by your ancestor and

title yes he has the right to the property now in uh I think that as a practical matter the older these uh

issues get uh the less and less likely that there could be evidence to to do it

uh to to prove the case um but sure I mean even now when you bought when you

when you buy your home you get title insurance right and that’s an insurance policy that you take out in case there’s

a defect in the opinion of the title attorney um saying that the seller had

the right to own the land and sell it to you so even now you could be ousted by someone with a better claim if you buy

land for example from someone who you think has title and they don’t then you could be Ed and then your title

insurance would come in and cover you and so I think that type of policy would be more widespread in a you know under

this homesteading rule yes assume the original owner

pass I’m sorry could you repeat that yeah how do you know theal owner pass on

lines oh no when I say the question was how do we know that a title is passed along and um along genetic lines uh when

I say descendant or ascendant in title that doesn’t refer to family lines that’s a a legal term that means uh just

a chain of title going back and forth yes um my question is as a p attorney do

you still practice and if so why if it’s something that you I I I’m a

p attorney as well I used to practice in DC um and I conversation with my with my

boss about this issue he was the first one who brought it up as far as why do we still have patent law and we worked

we did patent work for one of the largest chemical companies in in Germany um so we patent shop for them

just cranking out lots of applications for them to any anybody

else do you do you work for a large firm do you work for small clients and this

is this is an issue that I’m well um the question was uh am I a

patent attorney practicing now and why do I do it um and how can you justify this um I am a general counsel for a

company and um I handle all their legal matters and about 5% of what I do is IP

um and most of that is acquiring an occasional patent um um our company

acquires patents for purely defensive reasons that’s our explicit policy um I don’t think I would participate in

a patent uh lawsuit on the plain of side but in my opinion um in in today’s

system well first of all this is an ethical question and I don’t claim to be an expert on this uh but I I did write an extensive blog post a few weeks ago

on my blog responding to a similar question that was emailed to me uh so you can find it on my blog but um my

position is that um uh like a gun A gun can be used for good or evil right so

merely having a gun or buying a gun is not un libertarian it’s un libertarian to use it in the wrong way uh acquiring

a patent in today’s system in my opinion is not un libertarian because merely having a patent is not harming anyone it

uh not it’s not aggressing against anyone it would it would be aggression to use it offensively against someone in

my opinion however most patents that are acquired are either never used or asserted as you probably know um and

they’re held sort of a porcupine defense we call it it’s just to keep the other guy from suing you okay so it’s to sue

someone back if they sue you for patent infringement which I would completely support and do if someone sued my

company I have we have a large arsenal of patents and I would sue them back it’s a big waste of money that we spend

hundreds of thousands or millions of dollars getting a patent and so do all of our competitors just so that we don’t Sue each

other um but what it does is it keeps the small companies um from competing

because they don’t have the resources to have a big portfolio and so basically it’s it’s it’s part of the same old game

of the big companies or the more well-funded companies uh in a sense getting a slightly monopolistic Advantage um similar to the

way they do with with with u with u uh Pro Union legislation and minimum wage

laws um so that’s that’s my main take on it um although I I find the I do find

the practice a little bit distasteful uh yes in the back one problem is why couldn’t an insurance

company just draft a bunch of titles you know to R the property someone say Well I homesteaded this property and they say

well we have the title and they could draft the title before the person you know Homestead

hty how would a settle that issue one person they could prove you know the one

person claims insurance creates yeah okay so the question is sort of a question of uh

how would you prove your title and uh what’s to prevent insurance companies from counterfeiting property TI

um I’m not sure why you think insurance companies would be the ones that would be doing this I mean someone could counterfeit a title to a property uh or

not really counterfeit they could print a title to a property that’s not been Homestead yet is that what you mean property that’s not been well I just

don’t think printing a piece of paper is counts as an active homesteading you know it’s just I mean I

could I could print one right now that says I hereby declare I own the moon the Indians built nothing on you know land

so many years ago and they could find some kind of proof that you know we live on this regardless of the fact that we

didn’t change it well I think it would be difficult to prove for the Indians prove but if in a if so it’s a it’s a

contingent question if in a particular case uh some American a Native American could could prove to the court that his

ancestor did have had homesteaded this piece of property then I I think he should be able to get it back um me take

one of the back yes

the question is am I familiar with the status of a loial title in the United States I I I think I’m familiar with

what you’re

asking um

I there’s a guy named John cin who is a Libertarian and he’s lalis is his big

thing um I’ve never understood the value of the concept to be honest to me it just means ownership a loial means

complete ownership without any restraint um there is no allodial ownership in

America today I mean the government is basically the overlord of the property literally in fact um in the feudal

systems in in say in England the king is the Overlord of all property right and there’s land different feudal landlords

and people down the chain um that’s why the the concepts we use nowadays and

mostly in America um for property are so strange and convoluted we talk about Feast simple ownership and all these

bizarre feudal terms um when America uh left

Britain mistakenly

um this most of the States enacted statutes declaring um U the overlord

status of the king to be at an end it’s actually there’s a book by Cornelius moan that talks about this and um there

was a there’s two or three states where they explicitly declared the state to be the overlord step into the place of the

king’s shoes so actually in those States the state is still the overlord technically of the land but as a

practical matter the state is Overlord now I mean the state to Pro to tax your property to have property taxes is

claiming some kind of Overlord status over the land um so in my opinion in being in favor of

complete ownership of one’s body and having U settled rights in property one

acquires I’m advocating what’s essentially aalis but I don’t think it exists

today okay

sure uh yes so

[Music]

most [Music]

so what’s your

question so the question is um about copy left and related types of Licensing

schemes and I I don’t understand your use of the word utility what I don’t

understand what you mean by utility what are you asking wellity do you mean utilitarianism or do you mean utility

patents

IDE okay all right I’m with you well so the question is what’s what’s the

motivation behind why people use these licenses I mean look uh I use now and The mises Institute uses now a similar

type of Li A Creative Commons license we use the the most open one that exists that that we think is legally enforcable

there there’s one it’s basically Creative Commons uh share I mean no it’s Creative Commons uh attribution

attribution only so basically it’s there’s there’s there are more restrictive ones like uh Creative

Commons uh attribution uh share alike or attribution non-commercial only uh so we

use the most open one possible there’s some others that are a little bit more open in theory uh cc0 or public domain

but these are not uh guaranteed to actually work in most countries or or

all countries um took me a while to understand this uh

but basically a license is permission okay permission only needs to be granted

by someone who has the right to stop you from doing something so a license just means you’re getting permission from someone who can stop you from doing what

you’re getting permission to do um without copyright so in other words all these licensing schemes require there to

be copyright now copy left is more like the share like and I don’t like

personally don’t like copy left because it’s almost like uh a nerdy libertarian way to try to force

people to be like us you know and so it’s like saying you can use my stuff but only if you make everyone else do

you know it’s like putting it’s actually using the power of copyright to make someone do something uh and one problem

with this especially for writing in my opinion is that um let’s say you publish an article like in our Journal

libertarian papers and if we were to do the copy left or the share likee um some

publisher who wanted to include this paper in a book might not include it because they’re a commercial publisher and they’re just not going to do that

cuz they’re not going to agree to impose those kind of creative comons or copy provisions on other people so you’re

actually going to get your papers left out if you do the Creative Commons sh attribution only well all they have to

do is put your name on and they’re going to do that anyway so we want our ideas out there um I think I I read I think

it’s in a really good podcast with McKelly balron and Russell Roberts um he mentioned that uh Bill Gates had a

comment that if uh if there had been software patents there would be no there’ be no Microsoft

now I mean it would it would it be it’ be a nightmare um now it’s it’s in little little bit

boring technical stuff in my opinion for most people unless you’re happen to be interested but the distinction between

patent and copyright how they affect U software is a different issue I mean copyright covers basically your code

what how it’s written and patents could apply to some of it uh the all these licensing schemes are primarily uh

copyright based related to copyright um yes

[Music]

sir okay interesting question um as an anarchist how do you handle the problem

of enforcing property rights in a Anarchist Society against people who would otherwise trespass against your

rights or not respect them um I mean that’s really beyond the scope of this talk um and I don’t claim to be the

biggest expert on that um that’s more uh security Theory production and security Theory um I mean I would just say that

you know if we have a reach in Anarchist Society it’s because most people are already convinced of Anarchy or of libertarian principles that’s how we’re

going to get there so you’re always going to have a marginal number of of criminals and um in one of my favorite

phrases by haa I believe um that’s just a technical problem uh you know how to

deal how to deal with these guys I mean it’s a problem like any other problem in life I mean how do you fight off cancer and how do you um how do you build a

bridge how do you come up with ways of killing bad guys you know um now there’s

a lot of theory on this and articles on this and I would just have to point you to that there’s on the Lou Rockwell

website uh under the archives there is a really good uh bibliography section and

there’s a really good one on anarcho capitalist literature that haa prepared and there are some other ones on there too I would I would just just point you

to some of those articles yes I just kind of wanted to give my own opinion on his question one that mention about

fraudulent things for one I think in a completely free market you know ones that would for instance give a contract

fraudulently saying X Homestead of this piece of land Le be out competed by those who honest and also I think even

in the case like I know some people who are in N syndicalists that have believe in property I think even though you might have like war or or some outbreaks

over issues of like property here I think overall because they you know are

going to Value not getting destroyed themselves even what they’re Caan to be against property um that’s going you

know that praxiological principle is going to work itself out and they themselves be working to cooperate so

won’t be like cing it will work out okay I can’t in my

opinion I can’t uh I agree with that I can’t I can’t summarize the whole comment but it was a comment on the question earlier which I just remembered

I didn’t really answer um about fraudulent property titles um in addition to your question about uh fake

property titles that are titles to things that have not been homesteaded

um just try not to get hung up on the word title people get a little bit legalistic and mechanistic about things

and they think of a contract or a title as a a piece of paper it’s not title

just means the right to own in my opinion okay so if you print up a title you’re not printing up a title you’re printing up a piece of paper that claims

you own own it I believe in a free market just like in today’s society um you would have established ways of

showing your of demonstrating or proving your ownership of property um especially for real property or land or immovable

property I mean you wouldn’t want to take a chance that someone would contest it and that in the ensuing court trial

you might lose because you didn’t have a good way of showing you owned it so I think there would be a reason for you to pay a little fee to some kind of uh

independent registration agency and register your claim and then over time I think that would become a de facto um

evidentiary method used to prove title and if someone printed up just printed up a title you would just go compare it

to the records in this established property ey title office and you would lose yes do you explain how um contracts

don’t quite approximate patents but when you be able to approximate copyrights so

the question is if even though uh contracts could not be used to uh approximate patents could they be used

to approximate copyright and ironically this was rothbard’s view even though he was a proponent of the

title transfer Theory contract uh it was a really tentative section I don’t I think he was I think he just made a

mistake uh I think he wasn’t thinking clearly rothar basically argued that um

well first of all he gave the example of a mouse trap brown and green and I forget the other colors but so he said

what if you know you you sell a mouse trap and you stamp it copyright now then he he comes up with an argument to try

to show that this this would prevent not only the buyer but also a third party I think green um from using it U well

first of all copyright the copyright is is is is used

to protect original expression original creative expression like novels poems software movies things like that patents

are used to protect um Innovative practical

functioning ideas uh methods and and devices and if you know anything about

how these systems work I mean there’s a reason there there are two different statutory schemes they’re pretty much

unrelated in fact I agree with a lot of the critics of Ip who don’t like the term inal property but again I I think

that’s fighting the wrong battle to focus on semantics but they what they object to is unifying these different

things under the same umbrella because they are different but my point is they are so different that it makes no sense

to treat one like the other and rothbart is trying to use copyright to protect an invention so patents is what applies to

that so he says he’s against patent but then he uses copyright to protect what patents do cover I mean to me that’s

shows he wasn’t really familiar with how this worked but the the mistake he made I believe was he said um he he he thinks of rights as

being a bundle of Rights and so if I own a mous trap I have the right to the

design whatever that means and I have the right to the physical object I produced and I sell only the object to

my buyer and I retain the right to copy okay so it’s like he’s envisioning

the mouse trap with this kind of mystical right to copy compartment empty

right and so if if Brown has it he’s just holding a mouse trap that doesn’t have a right to copy with it so green if

green sees it there’s just no way green can get the right to copy from it and you can see that this just makes no

sense whatsoever so how does that apply to books music movies I think the same way I I don’t think any of them can be

covered by any kind of a I don’t think any them uh could uh

uh be protected with respect to third Parties By Any kind of contract system um and I mean just imagine an example of

you know you have a neighbor who’s watching a copyrighted movie on his television but he leaves

his windows open and you know you’re looking out and you you see you know the Wizard of Oz playing by and you kind of

get the idea oh there’s Dorothy and there’s so you kind of learn of the plot just by watching across the street all you’ve gained is information

now you haven’t signed a contract with anyone you’re not trespassing so why can’t I write oh I think I want to write

uh Stephan canel’s uh Further Adventures of Dorothy why not but under the current

law you can’t do it because that’s a derivative right yes um do you think

that the ability to be like the first person in the market with this item and

obviously be able to make a profit immediately even though your profit might not be as much other competitors

into the market copying your product you think that’s still going to be enough of incentive to um to make like creative

items Like Music Television or music movies books uh still like a viable

level commity well so the question is would the would the being first to Market in the absence of a copyright

system be be enough to U enough of an advantage to stimul to

incentivize people to produce books and movies and and music and I mean of course of course because I mean before

we had copyright law there were books and there was music so we clearly would have some now would we have the same

amount would we have more would we have less would we have a different type I don’t know

um you know I I tend to think some things would change I think that music I mean music would tend to be music in

books would probably tend for a lot of people tend to be given out uh for free as PR advertising for the person they

would make their money other ways on the speaking circuit or live concerts or by selling you know an autograph copy of a

CD with a special thing with it and things like that and that’s already happening a little bit right now um but

I mean basically the question is would it be enough not would there be any right so you can’t say would there be any obviously there would be some I mean

you know we write articles for free people he that blog on blogs you’re not getting pay for that you do it for free

and people get to see it so there’s there’s going to be some of this done

and I don’t think that uh it’s the province of U of libertarianism to decide how much is enough now for examp

even in today’s society uh there are costs of exclusion for example um driveing movie theaters I don’t know if

you you’ve heard this story before but drivein movie theaters adopted the little speakers that go up next to every

car to prevent free free Free Riders from sitting on the on the road next to it and just watch because you can see it

right it’s it’s out in the open and if they had big speakers blaring it out then you could have a bunch of Free Riders watching so they had to spend

money to put in Speakers by every car which don’t sound as good probably and

as as their exclusion cost and they’re still in business or some some are still in business um even even this the ticket

changer and the doors are means of exclusion right if you could just trust everyone to be honest then you wouldn’t

have to charge a ticket you would just say you know only only go in if you pay but instead you lock your doors and you

have a little guy at the counter and you have to pay them a salary right so there there’s cost of exclusion in almost

every type of business and it’s up to the creativity of the uh of the entrepreneur and the businessman to

figure out the best way to do it and if there’s some type of endeavor for which the exclusion costs are too high then he

shouldn’t be in that business he shouldn’t do it it’s not it’s not economically efficient uh yes

[Music] no way that should be expected to

you C never

I I mean so really your question is your question is just an interpretation of contract you’re saying how do you

interpret contracts where you know if a sells a book to B and makes B agree not to let anyone see it then

how do you construe whatever provision is in there um as coming in if if if B

let C see it I mean I think that’s just that’s just a question of is there a breach of contract and so I mean you’d

have to show me the provision now my personal view is these these kind of contracts wouldn’t be used that much because first of all the seller knows

that it’s not going to work very well against third parties it’s going to leak just got to leak once and then then you’re you’re doomed um and also I don’t

think you’re going to waste time on draft drafting Provisions that are unenforceable and hard to enforce okay so um I think basically it’s there’s a

really good expression I think it was um it’s it’s in a Wendy mroy article which is a really good article about copyright

um she quotes I think Benjamin Tucker I think and the idea is you know if you want to if if you want to keep keep an

idea um if you want to protect your idea keep it to yourself you know but once you release it it’s known I mean this is

public you know it’s information and so if you’re selling a product that is basically a lot of the value of it is in

the information you know that’s the risk You Take by selling it and you have to find other ways to make money yes okay

I’ll do you since I haven’t asked you

we have to econom it in that sense and I just wondering I know that knowledge

acquisition itself

[Music] still so the question is

um how is knowledge economically classified as scarce means or scarce Goods or not and um I mean I think

clearly it’s not it’s almost the Paradigm example of a non-s scarce resource um a scarce a scarce good is is

by scarcity we do not mean just not very abundant uh we just we mean that it’s

contestable really that that only one person can use it at a time that one that one person’s use exclud means

rivalers basically one person’s use excludes anothers okay

yeah I think actually there’s a there’s a good comment by GTO in one of his early GTO hillsman in one of his early pieces about and he just has a offhand

comment about how knowledge is used to inform action I mean it’s it’s what we do when we act we use knowledge to to to

to make to uh to act um and actually there’s a good comment in the McKelly

balen podcast I mentioned earlier he talks about how um he actually denies that uh that he denies that that it’s

really easy to spread a lot of this knowledge like abstract knowledge you know 2 plus 2 is four that’s fine but he

gives example why is he’s an economics professor why is he paid to teach I mean he’s teaching things that are in

thousands of books have been known for a long time but he’s still being paid to teach it because he’s got sort of a practical knowledge about how to teach

it to people right you can’t easily communicate that um so no I think

knowledge is clearly not a serious and I think one way to see this is you know if you have a book and you have a stick and

I I Homestead this stick it doesn’t do anything to your book right doesn’t my homesteading this unknown stick doesn’t

trespass against your physical book but if you were to Homestead a scarce an

idea if it were scarce it would give you the right to control that other person’s

paper so but that’s scarce too so how could they conflict like that I mean it just doesn’t make any sense scarce Goods

don’t interfere with each other when you Homestead one of them and ideas do mean that research will disappear if the

knowledge is not and it’s to become free well okay no more time for any

question the question was would research disappear in the absence of Ip the answer is just no thank you

[Applause]