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Kinsella on Liberty Podcast, Episode 127.
From December 2011, an interview by Stefan Molyneux for his Freedomain Radio program about the evil Stop Online Piracy Act, or SOPA. We discussed the First Amendment violations of and other problems with SOPA.
Moly’s original video was taken down when he was deplatformed.
Youtube transcript and Grok shownotes below.
Grok shownotes:
Episode Overview: SOPA, Piracy, and Internet Freedom
In this episode of Freedomain Radio, host Stefan Molyneux interviews intellectual property critic Stephan Kinsella about the Stop Online Piracy Act (SOPA) and broader issues surrounding copyright enforcement. Kinsella provides an overview of SOPA’s status, noting its delay until January amid widespread opposition, and criticizes it as a tool for big media industries like the RIAA and MPAA to ratchet up penalties for infringement. He argues that copyright is a government-granted monopoly incompatible with free speech and human liberty, potentially even unconstitutional under the First Amendment. The discussion highlights the tension between copyright’s censorship effects and the internet’s role as a “copying machine,” drawing parallels to the drug war’s futile escalation.
Historical Context and DMCA Critique
Kinsella traces copyright’s evolution, referencing the Digital Millennium Copyright Act (DMCA) from the 1990s, which included safe harbor provisions that inadvertently allowed the internet to flourish by shielding ISPs and platforms from liability for user actions. However, he points out abuses like takedown notices, exemplified by Uri Geller’s attempts to remove embarrassing footage despite lacking rights. Molyneux concurs, likening it to suing a road maker for a bad driver, and notes how risk-averse platforms side with copyright holders, stifling fair use. The conversation positions SOPA as an unnecessary layer atop the DMCA, potentially breaking DNS protocols and enabling ex parte shutdowns without due process.
Impacts of SOPA and Technological Workarounds
The hosts discuss SOPA’s potential to create “permanent pirate communities” by driving hardcore users offshore with encryption and tools like DeSOPA or MafiaFire add-ons, while inconveniencing law-abiding citizens and chilling speech. Kinsella warns of broader state control, using IP enforcement as a pretext alongside child pornography or terrorism fears, and predicts SOPA’s unconstitutionality due to prior restraint issues. Molyneux adds that it could exacerbate civil unrest by suppressing dissent during economic turmoil, and both criticize the “dinosaur mentality” of media industries clinging to outdated models, ignoring studies showing pirates often buy more content.
Alternative Business Models and Creative Incentives
Exploring life without strict copyright, the duo highlights successful freemium approaches, such as comedian Louis CK earning $1 million in days from a $5 DRM-free video release, or Molyneux’s own experience freeing his books and thriving on donations. They advocate tipping-based systems for artists, akin to waiters, and suggest authors like J.K. Rowling could profit via pledges or endorsements. Molyneux emphasizes how low barriers to digital donations enable voluntary support, countering claims of market failure, while Kinsella mocks government-funded innovation panels as bureaucratic absurdities that could cost trillions.
Government-Media Alignment and Economic Ramifications
The episode delves into motivations behind SOPA, with Kinsella attributing it to media bribery of politicians and state desires for internet control, echoing historical monopolies like the Statute of Anne. Molyneux speculates on an alignment where Hollywood’s reliance on government protection ensures pro-state narratives in media, avoiding anti-government films amid social unrest. They warn of job losses as IT firms flee U.S. jurisdiction and investment chills, framing SOPA as rent-seeking with visible gains for media but invisible societal costs.
Molyneux’s Alignment with Kinsella’s Anti-IP Views
Throughout the discussion, Molyneux shows strong alignment with Kinsella’s anti-IP stance, though he stops short of explicitly calling for the abolition of patent and copyright laws. He actively supports Kinsella’s critiques by sharing personal anecdotes, such as releasing his books for free and advocating tipping models, implying copyright hinders better systems. Molyneux counters pro-IP arguments—like diminished creativity without controls—by citing billions of unpaid blogs as evidence against underproduction, and he ridicules piracy loss calculations as “insane.” His libertarian framing of SOPA as government overreach and enthusiasm for freemium economies indicate he views IP as unnecessary and harmful, consistent with abolitionist views, but without a direct statement like “abolish copyright.” This implicit agreement is evident in his positive engagement and lack of pushback against Kinsella’s core arguments.
Youtube transcript (cleaned up by Grok):
Podcast Transcript: KOL127 | Freedomain Radio: SOPA, Piracy, Censorship, Internet
Introduction and Lighthearted Banter
0:00
Stefan Molyneux: All right. Hi, everybody. It’s Stefan Molyneux from Freedomain Radio. I have, I guess, the original Steph. I would be the Stef version B, the revision, the beta. This is Stephan Kinsella, who’s going to be talking to us about SOAP, if I understand this rightly. The need for more personal hygiene among libertarians. Did I get that correct?
0:14
Stephan Kinsella: That is not what I prepared for today, Steph.
0:20
Stefan Molyneux: So, you haven’t showered. That’s what you’re saying. Okay. So, SOPA. I did some writing on it and some reading on it, and it seems alarming in a way that all these initiatives seem alarming. The only way that I can see what is most alarming about it is, as usual, by what the government says it’s never going to be used for. Whatever the government says things are never going to be used for, I assume that’s immediately what it’s going to start being used for. But I wonder if you could go over what you find most heinous and deleterious about this. Is it imminent? It’s coming up for a vote pretty soon.
Overview and Status of SOPA Legislation
0:48
Stephan Kinsella: Well, I just heard today or yesterday the most recent news about the status of this bill, which is apparently it is now delayed until January. Last Friday, everyone was worried it was going to be pushed through by the Republicans and, I guess, the Democrats too. Then they delayed it and said it was delayed until January. On Monday, they said, well, we’re going to take it up again on Wednesday, which is today. Then they finally said, no, we’re going to delay till next year. So, I think we have a little reprieve. But these guys are relentless. The big media, you know, the music industry, the RIAA, the MPAA, the software industries, they are relentless in pressuring Congress to ratchet up the penalties for copyright infringement. I don’t think they’re going to give up. So, I think it’s a matter of time. Maybe it’ll be watered down a little bit.
Background on Copyright and SOPA
1:39
Stephan Kinsella: Let me give you a little background on what’s going on here. As you know, I’m a strong opponent of copyright. I think it’s basically a government grant of monopoly privilege, and it is inconsistent with human liberty and human rights. In fact, I think there’s a good argument that it’s inconsistent with the First Amendment, with free speech rights, because it basically prevents you from publishing or saying certain things. You could even argue that the copyright clause in the US Constitution, which was in 1789, when the Constitution came out, was superseded by the Bill of Rights in 1791, two years later. So, if there’s an inconsistency between free speech and the censorship that’s wrought by copyright, then the later provision would have to prevail. That’s an argument that I haven’t heard many people take up, but I do think you could argue that. Most people think that the copyright clause is legitimate and the free speech clause is legitimate, and they recognize there’s a tension. So, they say we have to balance these things.
2:40
Stephan Kinsella: So, you have this unprincipled approach, which you and I hear all the time, that the government or the courts have to balance these interests. We have to balance the incentive of copyright and the creativity that it inspires, allegedly, with free speech rights. So, there’s a balancing effect. We’ve had copyright for a long time, and there is tension. Then, in the ’90s, this thing called the DMCA, the Digital Millennium Copyright Act, was passed, which was a ratcheting up of the power of copyright in the digital age. Luckily, at the time, the proponents of this, I think, did not realize the effect of the safe harbor provisions that some of the opponents insisted be put in, because it basically allowed the internet to flourish.
Impact of DMCA Safe Harbor Provisions
3:29
Stephan Kinsella: If those safe harbor provisions had not been put in, the internet may not have taken off. There may not have been a YouTube, a Twitter, or a Facebook. The safe harbor provision basically shields a publisher or an ISP from liability for the allegedly copyright-infringing or defamatory actions of a user who posts on that site, because otherwise, they might be liable for that. Then, the person who claims they’re a victim of copyright infringement or defamation could go after the website or the host or the ISP.
4:09
Stefan Molyneux: Right? It’s like you wouldn’t sue the road maker for a bad driver.
4:15
Stephan Kinsella: Exactly. So, this safe harbor provision is why we have now this kind of arcane system of DMCA takedown notices, which is still not the best system, but at least it’s a procedure. There’s some due process. There’s some understanding of what’s going on. It can be abused, and it is abused regularly because if you get a site taken down with a DMCA takedown notice and you’re wrong about the copyright claim, there’s really not much that the victim of this can do if their video, media, or blog is shut down. But at least there is some system. Instead of trying to fix the problems with this DMCA, they’re adding yet another layer on.
Examples of DMCA Abuse
4:52
Stephan Kinsella: I wanted to mention too that I was reading that Uri Geller, a psychic charlatan from the 1970s, was on The Tonight Show and was pretty much humiliated by having all his tricks exposed by Johnny Carson. He actually asked for this stuff to be taken down, though he has no copyright holdings over it, and the site owners agreed. That’s just because, you know, who’s going to stand on principle and face years of this sort of back-and-forth?
5:15
Stefan Molyneux: Yeah, legally he actually had no right because he probably signed a waiver, and if you film someone, the copyright is in the person who films it, not the person being filmed.
5:27
Stephan Kinsella: But basically, if you threaten to sue someone, then they know there’s a chance they might be liable. If they just respond the way the DMCA says they should respond, then they have the safe harbor of liability protection. So, they take it down out of risk aversion. A lot of times, the other side can respond with a response. But if your response is fair use, which it often is—like, well, yeah, technically this looks like it’s a use of someone’s copyrighted material, but I have a fair use claim—well, fair use is one of these nebulous, vague things that has to be decided by a court, usually. So, the ISP or YouTube is going to just say, “Well, how do I know if it’s fair use or not? I want to keep my safe harbor. I want to keep my limitation of liability.” So, it tends to cause them to have a hair-trigger in siding with the rights holders, the copyright holders. You’re exactly right about that.
Layering New Laws on Top of DMCA
6:27
Stefan Molyneux: So, you’re saying that they’re adding more layers on at the moment. Like all laws, they just grow and grow. It’s like stalagmites. They just grow and grow. So, they don’t sweep away and start with a clean slate. Is this being layered on top of the Millennium Act?
6:40
Stephan Kinsella: Yes, layered on top of that and some recent acts which penalized streaming. But basically, about two or three years ago, there was an act called the PRO-IP Act, which they tried, and they didn’t quite succeed. Then, it was succeeded by one called the COICA, Combating Online Infringement and Counterfeits Act. COICA went down to defeat about a year ago, and now we have the son of COICA, which is PIPA. We call it the son of COICA, the Protect IP Act in the House, and the Senate version is called SOPA, the Stop Online Piracy Act.
SOPA’s Attempt to Enforce Copyright
7:13
Stephan Kinsella: So, basically, all these laws are an attempt to enforce copyright in the form of stopping piracy, which, you know, they refer to using information and copying information on the internet as piracy. You have a tension here because you have the internet, which is the world’s greatest copying machine. Once ideas get out there, information gets out there, it’s not going to be not copied and not used. You have the idea of copyright, which is to stop people from copying, learning, imitating, emulating, remixing, and using and learning from others. So, of course, you have tension. It’s like the drug war stuff because you cannot stop people from doing this, especially with the increasingly sophisticated encryption techniques people have, BitTorrenting techniques, and these kinds of things. So, you have to escalate and ratchet up the penalties, just like the drug war, right? I mean, life in prison or even execution for fairly minor drug crimes in a desperate attempt to enforce something that is inherently immoral and impractical in the copyright sense.
Examples of Harsh Copyright Penalties
8:28
Stephan Kinsella: I just read something today about a guy—now this is without even SOPA being passed. There was a guy that was sentenced to a year in prison for uploading a copy of the Wolverine movie onto the internet. He’s in jail for a year, even though the movie made $273 million, and, you know, it’s just insane. It’s only going to get worse if SOPA passes.
8:56
Stefan Molyneux: Well, of course, there are three categories of people covered by most laws. There are the people who would never do it and don’t even know what it is, and they’re not going to be affected. There are people sort of in the middle who have a vague idea: “Oh, I’m watching something on YouTube. I don’t know, maybe it is, maybe it isn’t,” or “I’m uploading something, a mashup or something like that.” Those people will probably be scared off. But, of course, the reality is, just like the drug war, the hardcore people are only going to find it more valuable to provide whatever service when there’s more restriction on what they can provide. The value of what they can provide goes up, just like the drug war, like any other thing. Those people are just going to move their stuff offshore. They’re going to put encryptions. What they’re doing is they’re guaranteeing the emergence of permanent pirate communities. Wouldn’t you say that’s fair?
Emergence of Pirate Communities and Technological Workarounds
9:36
Stephan Kinsella: 100% true. In fact, I read just today about a new Firefox add-on called DeSOPA, which is already out there and is ready to go into effect as soon as SOPA comes into effect. What it will do is, one of the bad things SOPA will do is it will basically allow—well, there are different versions of it—but it will allow the Attorney General or private citizens, in some versions of the law, to get a site shut down. In other words, a private citizen or the Attorney General can either send a letter with this sort of safe harbor threat that we talked about, or go through the court, but a court that doesn’t invite the other party. So, it’s ex parte, we call it. In other words, it’s not adversarial. There’s no due process. It’s basically a unilateral order to a third party like Google or YouTube, telling them you have to not give a link anymore to this website or to all the parts of the infrastructure of the internet that give the DNS names. You have to remove this from your database. So, they will literally break the internet’s DNS protocol.
10:43
Stephan Kinsella: So, if you type in, you know, freedomainradio.com, that’s text that maps onto this IP address. No one knows your IP address. You probably don’t even know it. But there’s a DNS that maps it to that. Well, if the government comes in and breaks that mapping, people can’t find you anymore. So, there’s this program called DeSOPA, and what it will do is, if you type in freedomainradio.com and Firefox can’t find it because it can detect that the government has had it taken down, it’ll just go to this database in Europe somewhere or somewhere overseas, find the right mapping address, and take you right to it. Of course, the pirates and even the real terrorists, people like this, they’re going to easily find a way around this stuff. So, it’s only going to inconvenience law-abiding citizens. It’s only going to give more and more tools to the state to hold over people’s heads as a threat that, you know, here’s yet another law you’ve broken, so cooperate with us on this or whatever. I agree 100% with you.
11:47
Stefan Molyneux: Well, I think there’s an add-on for Firefox called MafiaFire or something like that, where sites that have been taken down, you get redirected to backup sites. It’s the WikiLeaks thing, right? These people, they learn nothing.
Motivations Behind SOPA and Copyright Enforcement
11:59
Stefan Molyneux: Do you think it’s being driven by what always strikes me about piracy issues or questions is that people say, “We’ve had 3 million illegal downloads of our movies. Okay, so at, you know, $10 a movie, that’s $30 million in lost revenue,” which to me is a completely insane calculation because it assumes that if the people weren’t able to download it, they would have immediately bought it. That just doesn’t seem to me to be the case at all. I don’t know if any studies have been done on that, but I know that in England, they found that people who downloaded spend more money than people who didn’t download, and it’s a way of sampling or previewing music, and then you go out and buy the album or support the artist however you like. I think it was Coldplay who released their last album on a sort of pay-what-you-want basis, but it seems like there’s just this real old-school mentality that people are stealing from us, and we just have to close the gates. Where do you think the mentality is coming from that is really driving this? Is it merely punitive? Is there a fantasy of riches if it goes through, or what’s driving it?
13:04
Stephan Kinsella: I think it’s a combination. It’s an intersection of a lot of different trends here. On the average person’s side, they’ve been taught this idea that property rights are good, and, of course, other types of IP property rights are good, like intellectual property. So, they hear “piracy,” and the problem is, in this debate, even most of the opponents of SOPA will concede the ground. They will say, “Well, we admit that piracy is a problem, but this isn’t the right solution.” Well, once they say that, in my opinion, they’ve lost the argument because once you admit that there’s a right being violated, sure, there are costs to different enforcement measures, but you can’t really object to them on principle grounds. It may cost too much, but if there’s theft going on, we have to try to stop it. So, I think the average person has been basically brainwashed or propagandized with this false idea that intellectual property is a type of property.
14:05
Stephan Kinsella: Now, on the side of the MPAA and the RIAA, they’re just trying to hold on to a dying business model and extract every bit of profit that they can out of it. If you read back in the history, every time there’s a technological advance, they freak out. They freaked out about LPs. They thought it would ruin live performances. They freaked out about radio. They freaked out about live television broadcasts. They freaked out about the VCR, as you remember. They freaked out about CDs, digital audio tapes. They freak out every time, and every generation, their profits get better and better. There have been studies, even recently, showing that, yeah, the people that tend to pirate are the ones that buy even more. Even if you could show that someone’s profit is less than it would be absent an absolute ironclad fascist monopoly enforced by a strong state, are they really entitled to that?
Alternative Business Models: Louis CK Example
14:59
Stephan Kinsella: This guy, Louis CK, this popular US comedian, the other day released his comedy tour video on his own website for $5, DRM-free. He said, “I know people can pirate this and torrent it, but here it is for you. Do what you want with it.” He said, “It cost me $30,000 to have the video made and $200,000 to produce the show, and I’m hoping to make enough.” He made like a million dollars in about seven days.
15:25
Stefan Molyneux: Now, I’m just going to cry for a moment, just to say, as a podcaster, but I’ll be fine. Let me just get a Kleenex here. Maybe he would have made two million if he had done the regular deal, and the studio would have made three million on top of it, and the consumers would have paid $19.99 and couldn’t have used it on their iPod, but they could use it on one device and had to pay for it twice sometimes. It was a win-win for everyone except for the middleman, these copyright-entrenched studios and media industries.
15:55
Stephan Kinsella: Yeah, I agree. Piracy is, of course—the most recent example was just a couple of days ago. The new Batman movie is coming out next July, The Dark Knight Rises or something like that, and Warner Brothers or whoever is showing the trailer in theaters now before movies. Someone pirated the trailer, and then they put that on their website, and Warner Brothers sent a takedown notice, threatening to put the guy in jail who just had a link to it on his site because some of these laws actually criminalize a link because you’re providing an access tool, they call it, to the content. SOPA will make this even worse. What makes no sense is that no one’s going to pay for a trailer. This is advertising the movie. It makes no sense whatsoever.
16:42
Stephan Kinsella: So, I think it’s a dinosaur mentality that these guys have.
16:48
Stefan Molyneux: Well, my guess is that they’re probably getting some concessions out of the movie theaters in return for the trailer, and they feel that that may call—I don’t know. But if you go to the movie, you’re going to see the trailer anyway. I think art should be—my one of my first jobs was as a waiter where I lived on tips, and now, 30 years later, I find myself once more living on tips. It works. It’s the weird thing. It works in restaurants, and it works for podcasting. There’s a $300 billion-a-year economy that is freemium, as they call it, right? Free plus premium. My belief is that art should be—artists should be waiters. We all start out as waiters anyway, the actors and artists and all that. It should be tipping-based. You should receive the value for free and then tip. I can tell people that that works. I can tell you that it works. It works better than charging people for stuff.
Challenges of Shifting Business Models
17:34
Stefan Molyneux: But it’s a hard thing to let go of. I had to let go of a couple of years ago. I just let all my books go out for free. It’s a hard thing to do because you grow up with that mentality.
17:47
Stephan Kinsella: That’s true. I often get asked the question, “Well, if you don’t have copyright, how could you sell a book or sell a movie or sell a video or a song?” Not having copyright doesn’t prevent you from—I mean, Louis CK actually sold, you know, he had competition potentially, but he sold it anyway. He was the first one there, and people knew he was the reliable source because he produced it. It was a reasonable price, and he had no middleman. So, he made his money back in two days, and then he’s got pure profit now. People understand that if they like something and want more of it, they’ve got to throw some coin at it. Everybody gets that much. I think there’s some of that, too.
Innovation Without Copyright
18:26
Stephan Kinsella: I also think that when we stop being so reliant upon the business models that have grown up around the assumption that there’s copyright and copyright enforcement, people will become even more creative. For example, let’s say J.K. Rowling, who wrote the seven Harry Potter books. I don’t know if in a copyright-free world she would be the second-richest woman in Britain, worth a hundred million pounds, but she could have easily gotten an audience with the first two or three books and found a way to say, “Listen, I’ve got books four, five, six, and seven written. I’ll release them when I get pledges from a million subscribers, and then I will agree to endorse the first guy who makes a movie that pays me a fee to consult on the movie, and this will be the official movie.” There are ways you can profit from your reputation and your association with what you’ve created.
19:27
Stefan Molyneux: Also, all of this stuff arose at a time where if you consumed something for free and then you wanted to donate to the author, you had to write out a check, get a stamp, and go down to the post office. It was quite arduous to give people money for value received. But now, it’s like two clicks, and you’re done. The barrier to donations is much lower.
19:56
Stephan Kinsella: Yeah, I agree. Especially if you don’t go with the business model that the early movie and music industry did, where we had DRM and all this stuff. Just release it DRM-free. People are going to pirate it anyway, so give it to consumers the way they want it. These are the guys that are actually paying you. Why do you want to alienate the people and basically threaten to sue them? Say, “I’m not giving you ownership of this. I’m just giving you a license.” You’ve heard about these stories about the NFL threatening to sue churches that were showing the Super Bowl because the televisions were greater than 55 inches in diagonal length because, literally, there’s some statute or regulation that says 55 is as much as you can go. It’s crazy.
20:44
Stefan Molyneux: Well, those guys place an unwanted tax of about a hundred bucks a year on every US subscriber, even if they don’t watch. They’re just a bunch of predatory maniacs in the sports world.
Canadian Copyright Tax Example
20:55
Stefan Molyneux: In Canada, you have something similar with when digital audio tapes came out. The Canadian government slapped a tax on every blank tape based upon the idea that a certain percentage of these will be used to siphon away what could be sold normally with CDs. At least here, we’re not there yet. That’s like a type of prior restraint, like we’re assuming—it’s continued into the digital age. In Canada, they’ve slapped a tax on every form of media that can store MP3s or videos. The artists all went to the government and said, “Oh, we’re losing so much money.” Of course, they get grants from the government, but let’s leave that aside and say, “Oh, we’re losing so much money.” So, you need to tax all this media, and then you’re going to put that into a fund, which then gets paid out to artists on some ridiculous calculated basis. Of course, the money never went to the artists. They got, like, three pennies at a time. But what it did was it said to every single Canadian, “You can now download everything that you want. The floodgates have opened because you’re paying this tax, and that is now carte blanche to download and copy, and you’ve paid. So, go to town, right?”
22:11
Stephan Kinsella: That might be a better solution if they really would let you do that. But I have a feeling they’re going to crack down on the other. I think they’re actually trying to really ratchet up Canadian copyright law as we speak, the Conservative government there.
Proposed Government-Funded Alternatives to Copyright
22:22
Stephan Kinsella: I don’t know, you may be familiar with this, but there have even been some allegedly libertarian and free-market economist types in the US who, because they buy into this mentality of intellectual property, at least the utilitarian idea that we need to have the government grant these—in other words, we’re going to have an underproduction of artistic works, novels, movies, creative works, and inventions if the government doesn’t come in and solve this horrible market failure of the free market. Some of these guys have said, “Well, we agree that there are problems with the copyright law, and we agree there are problems with the patent law.” So, some of them have proposed augmenting or replacing the copyright and patent systems with a system where the government takes taxpayer dollars, gives it to a panel of experts appointed by the government, of course, who dole out rewards at the end of the year or each season of measuring people’s output.
23:28
Stephan Kinsella: So, people will come to this panel and say, “Hey, I just wrote a novel. Isn’t it great? I think I deserve $100,000.” Or, “I just came up with a new mousetrap. I think it’s really cool. I think I deserve a million dollars because, after all, I spent $900,000 in my garage over the last 17 years tinkering with it. So, I’ve got to recoup my cost, right?” Literally, one of them proposed a $30 billion fund for artistic works. Another proposed $80 billion just for medical innovations. Now, that’s just medical, but if you imagine the different fields of technology that patents cover, medical is just one narrow slice of it. So, if you extrapolate outwards, you’re talking 1, 2, 3, 10, 20 trillion dollars a year that these guys have in mind as a system to incentivize innovation and creativity because they have fallen prey to this crazy idea that there’s basically market failure, that without the state, we don’t have enough innovation or creativity.
24:41
Stefan Molyneux: Yeah, everybody knows that bureaucrats who have no interest in the profitability or loss of an item are much better at judging its business value than entrepreneurs or investors who actually have their own money in the game. It’s insane. But they believe in the public goods problem. They believe in market failure. So, they have no real intellectual defense against the argument that, well, you know, we can always have more. We don’t have enough innovation right now. We have an underproduction of innovation on the market.
Government and Media Alignment Concerns
24:58
Stefan Molyneux: I’d like to ask you a theoretical question. I don’t think there’s any way to prove or disprove it, but it seems like there’s an alignment of interest between the government and Hollywood insofar as you very rarely see an anti-government film or an anti-law film or whatever. You may see sort of crooked cops or whatever, but they always get replaced by good cops, like the Good King at the end of Macbeth. But it would seem to me that if I were running the government, put on my sort of cornered hat of infinite evil, I would really want the media on my side. I would really want the writers and producers and all that to be beholden to me so that I would not have to worry about critical messages, particularly at a time of significant social unrest such as the US is going through. Do you think there’s anything like that going on? In terms of the timing, I do.
25:40
Stephan Kinsella: I think—well, big media’s interest in this is obvious. They want to use the state to keep their monopoly as long as they can. This is exactly what happened in the origins of the Copyright Act in the 1600s or 1700s, the Statute of Anne in 1710. The monopoly was given to—what happened was the earlier monopolies that were given to the censoring guilds, the Stationers’ Guild, were fading out, and so the printers wanted to keep their monopoly. They petitioned the state, and the state said, “Well, we agree, but we’ll give it to the authors instead.” So, they sort of undercut what they wanted, but it ended up going to the printers and the publishers anyway because of the system, because the authors have to go to the publishers. I think the same thing’s happening now. They are going to the state, trying to keep their monopoly going as long as they can.
26:44
Stephan Kinsella: From the state’s point of view, the state is doing it in part to get bribed, basically, by these guys. They get tons of contributions. That’s why they’re fighting so hard for this. I think the guy that sponsored this, SOPA, was Lamar Smith, a Republican from Texas. Now, Texas, if anything, has high-tech industries like Dell and Compaq and even some Apple plants and things like this. They’re pretty much against this. We don’t have Hollywood here in Texas, so why would Lamar Smith be doing this? There’s got to be some graft and bribery going on here. But, of course, I think also the state can use this as a method of control.
The Internet as a Tool for Freedom and State Control
27:18
Stephan Kinsella: I’m sure you have a similar feeling. The internet, I believe, is one of the greatest tools of freedom of all time and one of the greatest weapons that we have against the state. Because it’s communication, it’s learning, it’s association. Now, of course, technology can be used by the state too. I think the state hates and fears the internet and the freedom that they inadvertently allowed to happen with the way it happened with the safe harbor provisions they inadvertently let slip into the DMCA. So, they are using every chance they can to find a way to come in and shut down, have a kill switch on people that they don’t like, or to have surveillance. They do it in the name of child pornography. They do it in the name of terrorism. They do it in the name of intellectual property enforcement now. So, I think they’re using the media industry as tools, dupes in a way, to assert more and more control at the same time that they’re criticizing China and Egypt and others for having restrictive policies of controls on the internet.
28:33
Stefan Molyneux: Yeah, it is, again, I think really committed people are going to continue, but there are lots of people out there who are going to shy away from this. It’s the well-known chilling effect of, “Well, I don’t really know what the law is, and it’s really complicated, so maybe I’ll just blog about my cooking or something like that.” Of course, the other thing too is that people say, “Well, if there’s no intellectual property controls or rights, then there’ll be a diminishment of creative work.” It doesn’t explain something as simple as the billions of blogs around the world. Most people don’t even make spare change out of them, if anything. Their work’s entirely copyright-free for the most part. There’s millions of people writing down their thoughts every day.
29:13
Stephan Kinsella: In fact, most of the people that criticize it, they’re commenting on someone’s blog for free, and they’re spending their time to make a comment. They’re not getting paid for it. So, why are they even doing it? No, I agree completely.
Constitutional Concerns and Potential Challenges to SOPA
29:25
Stephan Kinsella: The one good thing about this, the one silver lining, is that it seems pretty clear that SOPA will be unconstitutional. I think if they do enact it, it will be struck down in a year or two as being unconstitutional. I hope so.
29:38
Stefan Molyneux: You mean on First Amendment grounds?
29:44
Stephan Kinsella: Yeah, because under US law anyway—this is the US provision—most other countries are really worried about this because it would allow the US, because the US has a strange stranglehold on the entire DNS system because of the way the internet arose. They would try to use that to mess with the infrastructure of the internet, which could potentially disrupt the internet in other countries. The law asserts jurisdiction over foreign companies, like ISPs in other countries, on the grounds that they have what’s called in rem presence in the US because they’re on the internet, basically. So, a lot of other countries are starting to get riled up about this American imperialism, basically.
30:31
Stephan Kinsella: But normally, under US law in the Constitution, when there’s a law that would prevent some kind of speech or chill speech—and this clearly would, without even a court hearing giving the other side a chance to reply—then there’s really no due process. That’s called prior restraint. I think it’s going to be a pretty easy knockdown for the court. I wouldn’t be surprised if it gets struck down 9 to 0. Which makes it even more strange that Congress would rush to put it through. I personally think every single member of Congress that votes for this should be impeached because they’re voting for something that is blatantly unconstitutional, and they’re supposed to uphold the Constitution.
Political Timing and Social Unrest
31:13
Stefan Molyneux: Well, part of me says that if they feel they can get away with it for a year or two, I think it’s probably fairly clear that the next year or two is kind of a make-or-break time in American politics with the deficit and all that. So, I think that they’re probably imagining that there’s going to be a peak in civil unrest over the next year or two, and it’s like, “Well, let’s just get it in now, and we’ll deal with it later,” and then Obama or whoever can extend it under some martial law provision or whatever.
31:41
Stephan Kinsella: Yeah, I know. Or there’ll be enough civil unrest that people will say, “Well, we don’t want to, you know, let’s keep our clamps down,” and they’ll just find some way to extend it.
Public Opposition and Economic Impacts
31:46
Stefan Molyneux: Yeah, there has been a heroic uprising on the internet, surprising a whole variety. If you look at the demographics of the people that oppose it, all the young people oppose this. The Democrats tend to oppose it more than Republicans. Technology-savvy people oppose it manifestly, overwhelmingly. So, the word is out there. It’s been coming from all quarters, the EFF and other groups. I think that the congressmen that have been supporting this are pretty much aware now that they’re voting for something that 70–80% of the country is against. But the problem is, it’s not strong opposition on a widespread basis because people don’t understand this stuff. It’s arcane, and unlike the drug war, for example, the drug war is eventually going to fade away, or at least marijuana, because people know that you’re not really hurting anybody. But people have been fed this propaganda that IP is a property right, so they have the cover of property rights.
32:51
Stephan Kinsella: So, in a way, this type of provision is more insidious than the Patriot Act or even war or even the drug war because it goes under the cover of property rights, which we support.
33:05
Stefan Molyneux: Right, and of course, it’s going to drive a lot of jobs overseas. People are just going to take all of their IT infrastructure and move it as far away from US jurisdiction as possible, and it’s going to chill investment into the IT sector. But, again, these are all soft losses that are impossible to trace months or years down the road, whereas the immediate benefits of scaring people into not “stealing” from giant media—that’s an immediate hit that you can say you’ve really done something. It’s that usual thing of visible gains and invisible losses that creates all of those lopsided rent-seeking incentives of state action.
Challenges to Enforcing SOPA
33:34
Stephan Kinsella: Yeah, but luckily, I’m hopeful that the state will be unable to implement this, even if they pass it. Like I mentioned, you already have tools like this DeSOPA plugin for Firefox and the—what’s it—MafiaFire you mentioned. By the way, I think the law actually outlaws things like DeSOPA because, just like the DMCA outlawed what they call anti-circumvention technology—in other words, it outlawed owning a piece of hardware or equipment that you could use to decrypt an encrypted file, even if you have the right to decrypt it because you have a fair use right. Even if you weren’t going to use it for that, just owning this piece of hardware. The problem is, every computer can do this. So, theoretically, the DMCA already outlaws every computer in the world. They just don’t want to enforce it that way yet. Likewise, SOPA will outlaw anti-circumvention procedures like the DeSOPA procedure, but I don’t think they can actually stop it. So, I’m hopeful that they will be ineffective in enforcing this if they get it passed, but maybe they won’t pass it. Maybe they’ll pass something really watered down.
Closing and Upcoming Projects
34:48
Stefan Molyneux: Well, I guess we can hope. Just on a slight aside or to an end note, do you have any projects or speaking engagements coming up? I know you’ve done some great speeches recently, which I’ll put some links to on the message board that I’ve really enjoyed. Do you have any other fiery, denunciatory pulpit speeches coming up?
35:02
Stephan Kinsella: I’ve just been blogging a lot lately on The Libertarian Standard, which is libertarianstandard.com. I’ve got two or three books in the works. I’ve got one book in the works on intellectual property called Copy This Book, and I’ve got another book in the works as well. So, that’s what I’m focusing on right now. I blog a lot on these issues, on intellectual property issues, on my website, c4sif.org, which stands for Center for the Study of Innovative Freedom.
35:40
Stefan Molyneux: I’ll put that link in. As always, it’s been a real pleasure chatting with you, and have yourself a very, very merry Christmas.
35:46
Stephan Kinsella: Thanks, Steph. You too. Bye.
