KOL388 | Cantus Firmus with Cody Cook: Against Intellectual Property

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Kinsella on Liberty Podcast: Episode 388.

I was a guest on Cantus Firmus, with host Cody Cook (episode released July 8, 2022; recorded July 7, 2022). We discussed IP etc.

Recently re-podcast as Libertarian Christian Podcast Ep. 423. Grok shownotes and transcript below.

From his shownotes:

Stephan Kinsella was my guest to talk about “intellectual property,” the concept that an individual’s ideas belong to them and should be protected from free use by others through law. Stephan is a patent attorney and libertarian writer in Houston whose book Against Intellectual Property is the seminal writing on this subject. We discussed why intellectual property is not really property, why it places an undue burden on society, and how it inhibits the free exchange of culture and ideas. He can be found at www.stephankinsella.com, at the Center for the Study of Innovative Freedom, and on Twitter @NSKinsella

Resources mentioned in the podcast:

• Stephan Kinsella’s Against Intellectual Property – Amazon and Free from the Mises Institute
• Stephan’s Soho forum debate Abolish Copyrights and Patents?
• RiP: A Remix Manifesto – Amazon Video and Free on Youtube
• Richard Stallman’s book Free Software, Free Society

Not discussed in the podcast, but relevant to this discussion, is my own essay Open Source Jesus: A Manifesto for a Liberated Church

See also “Libertarians and the Catholic Church on Intellectual Property Laws” (2012) and KOL243 | Libertarian Christians Podcast with Norman Horn: Intellectual Property.

Grok shownotes:

Show Notes for Cantus Firmus Podcast Episode with Stephan Kinsella

Introduction and Background

• Topic: Guest Introduction and Motivation for Discussing Intellectual Property
  • [0:08] Cody Cook introduces the podcast and guest Stephan Kinsella, a patent attorney and libertarian writer from Houston, to discuss intellectual property (IP).
  • [0:26] Stephan Kinsella shares his dual journey into IP: his early interest as a libertarian questioning the weak arguments of pro-IP figures like Ayn Rand, and his career shift to patent law in 1992, which deepened his legal and theoretical engagement with IP. He explains how his dissatisfaction with existing justifications led him to conclude IP lacks a valid basis, prompting him to write and advocate against it, noting growing libertarian opposition over the past 20 years.

Personal Experience as a Patent Attorney

• Topic: Ethical Practice and Career Impact
  • [3:03] Cody Cook asks about Kinsella’s experience as a patent attorney opposing patents.
  • [3:13] Stephan Kinsella discusses his initial hesitation to write critically about patents due to career concerns, but found it enhanced his credibility with clients, who valued his expertise over his views. He distinguishes between patent prosecution (helping acquire patents) and litigation (suing or defending infringement), deeming only offensive litigation illegitimate as it resembles aggression. He likens his role to a “weapons merchant” or “cancer doctor,” helping clients navigate a flawed system defensively, though he finds it increasingly distasteful as a “fraudulent sham.”

Defining Intellectual Property and Its Issues

• Topic: Overview of Intellectual Property and Its Origins
  • [7:44] Cody Cook seeks clarification on why IP isn’t real property, assuming listener familiarity.
  • [8:13] Stephan Kinsella explains IP as a complex, intentionally obscure field, with the term “intellectual property” as propaganda to counter 19th-century free-market critiques. He outlines private law’s focus on scarce resource ownership (e.g., bodies, land) via self-ownership and homesteading, contrasting it with state deviations like patents (originating from royal monopolies in 1623) and copyrights (from the 1710 Statute of Anne to control printing). He argues these are unjustified government-granted monopolies, not natural rights, undermining true property rights.
• Topic: Property Rights vs. Intellectual Property
  • [8:13 cont.] Kinsella elaborates that property rights involve enforceable exclusion of others from scarce, tangible resources, impossible with intangible ideas. He compares IP to illegitimate slavery (using physical force on bodies) and labels it a “negative servitude” (veto over others’ property without consent), akin to contractual homeowners’ association rules but imposed by the state, distorting property concepts like taxation or inflation hides government takings.

Universals Argument Against IP

• Topic: Conceptual Critique of Owning Ideas
  • [23:43] Cody Cook references Kinsella’s book Against Intellectual Property, noting an argument about owning universals.
  • [23:48] Stephan Kinsella confirms the book title and explains the universals argument: owning ideas (e.g., a book’s pattern) is like claiming ownership of a universal (e.g., the color red), which conflicts with real property rights. He illustrates with a red car—owning the car doesn’t mean owning “red”—and argues IP’s abstract nature undermines tangible ownership, likening it to incompatible positive welfare rights.
• Topic: Praxeological and Practical Property Perspective
  • [23:54] Kinsella delves into Mises’ praxeology, viewing humans as actors using scarce resources (e.g., a spear) to shape the future, leading to a colloquial use of “property” as personal characteristics. He warns against conflating this with legal property, using the red car example to show owning a thing’s physical integrity, not its properties (e.g., color, age), reinforcing that information (e.g., a book’s text) is a pattern on owned media, not independently ownable.

Utilitarian Arguments and Empirical Evidence

• Topic: Constitutional and Utilitarian Justification for IP
  • [33:13] Cody Cook raises the U.S. Constitution’s utilitarian argument for patents to advance arts and sciences, asking Kinsella’s response to claims of incentivizing creation despite IP not being “real.”
  • [34:12] Stephan Kinsella critiques the shifting IP defenses from natural rights to utilitarian claims, debunking the founders’ intent as a self-interested hunch, not empirical, rooted in British practices. He challenges the premise that law’s purpose is to optimize innovation, asserting it’s about justice and property allocation, and notes the lack of conclusive evidence (e.g., Fritz Machlup’s 1950s study) supporting IP benefits, with industry claims (e.g., $5 trillion GDP contribution) being correlative, not causal.
• Topic: Economic Distortions and Lack of Data
  • [34:12 cont.] Kinsella highlights IP’s costs (e.g., billions in legal fees) and distortions (e.g., favoring patentable applications over theoretical research), countering common sense with no solid proof of net benefit. He cites the absence of patents in major medical milestones (e.g., penicillin, insulin) and CDC achievements, suggesting IP, like in pharmaceuticals, inflates prices (e.g., insulin monopolies) due to government schizophrenia—imposing regulations and patents, then criticizing high prices.

Practical Examples and Incentives

• Topic: Real-World Impact and Insulin Example
  • [41:17] Cody Cook cites his wife’s type 1 diabetes, where patents raise insulin costs due to monopolies, questioning if abolishing IP might slow technological progress.
  • [42:51] Stephan Kinsella reframes the debate, arguing law’s purpose is justice, not innovation optimization, which lacks a logical limit (e.g., extending patent terms or heavy subsidies). He notes IP’s implicit tax reduces consumer spending power, potentially stifling other innovations, and cites studies (e.g., Boldrin and Levine) showing patents drag on net innovation, with examples like unpatented medical breakthroughs (e.g., aspirin, vaccines) and government hypocrisy in pharmaceutical pricing.

Communitarian and Ethical Perspectives

• Topic: Stallman’s Open-Source and Christian Sharing Arguments
  • [48:34] Cody Cook shifts to Richard Stallman’s view that proprietary software is antisocial, contrasting it with early Christians’ free distribution of biblical texts, asking if Kinsella resonates with these communitarian arguments or accepts contractual end-user agreements.
  • [50:06] Stephan Kinsella acknowledges Stallman’s good instincts but critiques his confusion, rejecting copyleft as dependent on copyright and favoring CC BY or CC0 licenses. He supports voluntary contracts (e.g., no-copy agreements) but deems them impractical without copyright’s backdrop, citing high penalties’ ineffectiveness. He aligns with Jeff Tucker’s view that religious texts should be freely shared, not copyrighted, and questions paywalling non-profit libertarian works, advocating against censoring idea spread.

Cultural Impact and Remix Culture

• Topic: Cultural Ownership and Remix Manifesto
  • [54:31] Cody Cook references Rip: A Remix Manifesto, arguing copyright has privatized culture, asking if communitarian arguments resonate with Kinsella.
  • [55:08] Stephan Kinsella agrees culture was once shared, now distorted by “monopoly capitalism” or fascism, blaming IP for exacerbating commodification. He ranks patents as worst for material damage (slowing technical progress, costing lives) and copyrights for cultural/spiritual harm (e.g., long terms, sequel dominance, remix suppression), citing cases like Napster’s shutdown and the close Betamax decision, lamenting lost cultural and technological potential (e.g., TikTok constraints).

Closing Remarks and Resources

• Topic: Wrap-Up and Contact Information
  • [1:00:56] Cody Cook thanks Kinsella after an hour, promoting his websites (stephankinsella.com, c4sif.org—Center for the Study of Innovative Freedom) and Twitter (@NSKinsella
    ), promising links in show notes.
  • [1:01:24] Stephan Kinsella clarifies c4sif.org hosts his IP-focused content, appreciating the discussion’s novelty and one-way persuasion trend against IP.
  • [1:01:41] Cody Cook encourages exploring the argument for freer, less violent societies, thanking Kinsella for his time.
  • [1:02:43] Stephan Kinsella notes IP’s pervasive damage becomes unignorable once understood, aligning with Cook’s societal freedom questions.

Additional Resources

• Website: stephankinsella.com – Includes podcasts and writings.
• Twitter: @NSKinsella
• C4SIF: c4sif.org – Center for the Study of Innovative Freedom, focusing on IP critiques.
• Soho Forum Debate: Episode 364 – “Abolish Copyrights and Patents,” linked in show notes.
• Recommended Reading: Against Intellectual Property by Stephan Kinsella, available via Mises Institute or c4sif.org.
• Law Review Article: 70-page piece on copyright stifling innovation, posted on c4sif.org.

Contact and Feedback

• Email or comment via Cantus Firmus platforms to engage with the discussion or request further topics.

Transcript:

Introduction and Background

0:08 Cody Cook: Greetings, you’re listening to Cantus Firmus. I’m Cody Cook, and my guest today is Stephan Kinsella. Stefan is a patent attorney and libertarian writer in Houston, and I’ve got him on here because I wanted to talk a little bit about intellectual property. So, Stefan, can you tell us a little bit about yourself and why you became interested in this idea of IP, your intellectual property?

0:26 Stephan Kinsella: Well, yeah, there are two sort of simultaneous parallel tracks that got me interested. Number one, I was interested in the issue as a libertarian in law school and even earlier, reading the pro-patent, pro-copyright, pro-intellectual property views of Ayn Rand and others. So I was just kind of interested in it because their arguments were not very good, I thought. I mean, I assumed that they were right, but I thought their arguments were weak, so I thought maybe there’s a better argument that I had missed or something. But then I started practicing law in 92 and started in oil and gas law in Houston, but then I switched pretty soon after that to patent law because, for personal reasons, it was a better career option for me. So I got interested in patent law and intellectual property law as a lawyer, and so the law itself and those two things sort of dovetailed. Since I was learning so much about patent law as a lawyer and I was interested in libertarian theory and was dissatisfied with current approaches to justifying intellectual property, I thought I could maybe take a stab at it. So I started trying to find a better argument for IP for a couple of years and devoured the literature, considered all the arguments, tried to come up with some of my own, and kept hitting roadblocks because I couldn’t come up with a good argument for IP, and no one else had a good one. And I finally realized the reason why was because there is no good argument for IP. I was trying to justify the unjustifiable. It would be like trying to come up with a good argument for the drug war or something like that or the Federal Reserve. So I finally realized the error of my ways, which was I had been looking at it from the wrong direction, and when I realized that intellectual property rights are completely incompatible with justified natural private law libertarian property rights and I was willing to go that direction even though I was practicing in it, then everything became clear. So I started writing on it just to clear it up for people who were confused about it like I had been, and the interest is still there because libertarians in the last 20 or so years since I’ve been writing on it have gradually become more and more against IP as they’ve understood how illegitimate and unjust it is.

Personal Experience as a Patent Attorney

3:03 Cody Cook: And this is just kind of a personal question. So, being somebody who’s a patent attorney but who’s against the idea of patents, do you practice patent law like a—

3:13 Stephan Kinsella: Okay, I’ve written on that too. And at first, I was very timid in writing about it because I was worried that it would affect my career, like I thought clients or my employer or my law firm would be upset about it. But I gradually realized no one reads this stuff except for libertarians, and no one cares. No one cares what your policy views are. In fact, the more I wrote on it, even criticizing patents and stuff, the more it impressed potential clients because they didn’t care what my views were, but they figured I must know my stuff if I know enough to write about it. So it never hurt my career. But from an ethical sort of point of view, the way I view it is, well, first of all, patent law is not a monolithic thing. There’s different types of patent law that you can practice. There’s basically patent prosecution, which means helping clients draft patent applications and file them before the patent office and obtain issued patents, so it’s helping people acquire patents. And then the second type of patent law is litigation, which is, you actually don’t even have to be a registered patent attorney to do that. You can be any normal attorney who’s a litigator, and these are the people that go to court and they litigate about patents. So they will either sue someone on behalf of their client for patent infringement or they will defend someone who is being sued for patent infringement. Now, of those three types of activity—that is, patent prosecution, patent litigation offense, and patent litigation defense—two of them are, I think, are legitimate, actually. So the only one that’s illegitimate is patent litigation offense, that is, because it’s like aggression. It’s like you have these patents, and holding a patent doesn’t hurt anyone directly, although it can exert a chilling effect, but that’s just because of the system. But holding a patent is akin to owning a weapon, like a gun or bullets; how you use it can be aggressive or defensive. So if a company is sued for patent infringement, then one of their defenses or one of their strategies can be a counterclaim where they countersue the plaintiff for infringing one of their patents, and I view that as totally legitimate because it’s not an aggressive use of a patent. It’s only hitting someone back when they pitch you first. So in my career, I have tried never to be part of that patent litigation aggressive side, and I never have. So primarily, I help people obtain patents, and what they do with them is up to them. So I’m more like a weapons merchant; I help people buy guns or bullets, and what they do with them is up to them because there are legitimate uses and there are illegitimate uses. Now, I also view what I do as like being an oncologist, so like a cancer doctor who gets paid because there’s this unfortunate disease out there called cancer, but his goal in life is to help people navigate and deal with cancer and to minimize its effects. And also, most decent cancer doctors would prefer a world where cancer had been abolished, even though that would mean they wouldn’t have a career anymore as a cancer doctor. So they actually work for a world where they’re trying to abolish their jobs, and that’s what I do. So I view like I’m a cancer doctor in the patent field, and I wish we could get rid of this disease of patent law. But given that it exists, companies do need advice from people who know how to help them navigate the system and help them defend themselves by acquiring patents that they can use, if even if only defensively. So I think there are legitimate uses, legitimate things you can do as a patent practitioner, although ideally my job would not be necessary because I am a waste. It’s just a waste. It’s necessary because, just like CPAs and tax attorneys are necessary, and defense attorneys are needed because there’s a drug war, right? Without if there was not a drug war, you wouldn’t have as many defense attorneys being employed to keep people from going to prison for doing something that’s a victimless crime. That’s all that said, I do find my practice of patents more and more distasteful personally because I knew it’s just the whole thing is a big fraud, it’s a big sham, and I’d rather be doing something that’s constructive. Even though, you know, if someone’s paying you to do something, you are helping them, it’s just unfortunate that we have to help them fight this system.

Defining Intellectual Property and Its Issues

7:44 Cody Cook: Yeah, so, and you know, I assume people listening are familiar with what intellectual property is, but you’ve kind of started to sort of dance around why you don’t like it and why you wish it didn’t exist. So intellectual property is, we think about physical property, something I own, like this cup. An intellectual property is that I have an idea, a book, a song, something like that, and because I’ve had this idea, I claim ownership in it, and I can, the government will grant me some protections, right? So, yeah, why is intellectual property not real property in your opinion?

8:13 Stephan Kinsella: Yeah, and see, the thing is, it’s a very arcane area of law. It’s very complicated and confusing. Most people don’t understand it, and, like, for example, most people couldn’t tell you the difference between patents, copyrights, and trademarks. And that’s why it’s in the domain of specialists like me, and we get paid big bucks to help people navigate this. But the way it’s described, with all the ambiguities and confusion, is almost intentional because it helps the advocates of these systems keep people from really understanding what’s going on and understanding why it’s so pernicious. So, for example, the very term “intellectual property” is a made-up term that was propaganda that was made up to respond to criticisms of the patent and copyright system. So a brief overview of all this: in general, you have in the western societies, and you know, in the West, you have a private legal system. You have the state legal system too, which call public law because you always have a state, but by and large, the bulk of the law has always been private, and the private law includes criminal law, but it also includes civil law, which means the law of contracts and property rights and things like that. Ultimately, it all boils down to a view of property rights, which means a legal set of legal rights and rules and laws that basically allocate ownership of scarce resources in the world, including our bodies and other resources in the world that we use in human action, like tools, land, raw natural resources, raw materials, things like that. So the law is basically a body of rules that whenever there’s a conflict or dispute among two or more people over who should have a given resource over which there can be a contest or conflict, then the law will give an answer. It’ll say who owns it, and the answer, by and large, is compatible with the natural law, the private law, the Lockean idea that, in general, everyone owns their own person, their body. You know, that’s why slavery is not justified, and that’s why murder is wrong because when you kill someone, you’re using their body in a way they don’t consent to. So they own their own bodies. So this idea that you own your body is at the root of all private law, criminal law, and laws against slavery. And then for other things that we use, these scarce means of action, these scarce resources, the basic rule is whoever gets it first when it’s in an unowned state is the first owner. That’s called homesteading, or if you get it from someone who previously owned it by contract. So basically, you have these simple rules: contractual title transfer, original appropriation or homesteading, and self-ownership. So those are the core principles of the private law, and you see that. So ownership and property rights are a response to the problem of conflict and the fact that we live in a world of scarcity and limited resources, and to avoid having to fight all the time with each other, we have these rules that, at least in principle, if everyone follows them and if these laws are enforced, it allows us to live cooperatively and peacefully and have division of labor and trade and get richer and have more peaceful relations with our neighbors rather than war and all this kind of stuff, right? So that’s sort of the core backdrop. But now there’s always been deviations. As I said, public law or state law, the state makes exceptions for itself. Like, normally, you can’t steal something or kill someone because that’s theft or murder, but if the government does it, like if they take your money, they call it taxes instead of theft, or if they kill you because you sell drugs, or if they force you to fight in their wars and you get killed, that’s not called murder, although technically it is. So the state always makes exceptions for itself. So there’s always deviations from this ideal private law system, and one of those deviations in centuries past was this were two things that led to patent and copyright, which are the two most important forms of so-called intellectual property. And patents emerged from the practice of the king basically granting a monopoly to someone to be the only person who could do something in a given region, like you’re the only guy who can sell wine in this town. Now, why would he do that? Well, he would do it so that the guy would kick back some of the monopoly profits to him, right? So now this guy owes the king a favor. So, but of course, everyone else is worse off; his competitors can’t compete with them now, so they’re worse off, and the consumers are worse off because they’re getting lower quality products or at a higher price, right? So it’s a way of basically redistributing wealth from the average person to the favored court cronies and to the crown itself. So that’s what patents originated in, and that finally resulted in the Statute of Monopolies in England in 1623, which was the basis of the U.S. patent system, which now we say is a property right to inventors in their novel and non-obvious inventions, right? But really, it’s the same thing, you see. The government is granting a monopoly privilege to this guy for a reason, and the reason is because he patented something. Now, what does the government get in exchange? Well, the guy has to pay filing fees to the patent office, so that keeps a bunch of people employed at the patent office. In fact, the patent office makes a profit, and then the fees are diverted to the government. And not only that, if you want to enforce your patent, you have to go to government courts and pay fees. So, I mean, you know, the government gets their cut anyway. Now, copyright originated because when the printing press came around, then the ability of the court—I’m sorry, the ability of the crown and the state and the church to censor speech by controlling what the scribes could print by hand, you know, all these monks and people like that—it was easy before the printing press for the government and the church to keep forbidden texts from being printed and given to the people so they could control thought that way. But when the printing press came around, that was threatened, and after about a hundred-year period of a temporary monopoly, what’s called the Stationers’ Company, it was like a guild which was a monopoly on printing, when that expired, the government passed the Statute of Anne in 1710, which was basically copied modern copyright, and that’s where the U.S. copyright system came from. So copyright’s origins lie in the attempt by the church and the state to control what could be—what speech could be—well, what could be printed, believe freedom of the press. And you see that that’s still the same thing today, except the right has been transferred to authors. But what it means is the author of a book who has a copyright in the book can go to a government court and get forced use by the government court against someone else to prevent them from printing a book. It’s literally censorship. It’s literally book banning. So copyright still results in the suppression of speech. Now, these practices came under assault in the 1800s with the rise of the free trade movement and the free market economists and with the rise of free trade among the nations, and the industrial revolution was getting going in the 1800s, and these free market economists started criticizing this insane practice of the states with copyright and especially patents because they’re contrary to the free market. They basically protect people from competition; they’re anti-competitive; they cause censorship; it distorts the market; it leads to reduced innovation, all kinds of bad effects. In response, the defenders and the entrenched interests—you know, the certain inventor groups, certain industries, certain publishing groups that had needed copyright or relying on copyright for monopoly profits—they defended, they tried to oppose the government’s abolishing these rights, of course, and they said, well, it’s not a monopoly privilege granted by the government, which it was and which it always had been known to be. It’s a natural right. It’s a common law right. It’s a property right. Because everyone had a favorable opinion of property rights—people were in favor of property rights, and they’re in favor of free trade and capitalism—so when you say, well, this is a property right, then people say, well, I guess it’s a good thing then. But then the response was, well, how can you call it a property right? There’s no fixed, defined borders; it’s not tangible; and it expires in 17, in 14 years or 28 years. What kind of property right expires in 14 years? It’s obviously some unnatural, artificial thing by the government. And the response to that by the intellectual property advocates was, well, it’s a property right, but it’s a special type of property right. It’s an intellectual property right because regular property rights protect the products of your hands or your labor, whereas intellectual property rights protect the creations of your mind, your intellect—so books, inventions, trademarks, trade secrets, all these things that have to do with your intellect. So they basically found this kind of sneaky argument that bamboozled people because of ambiguities in the way they use the word “property.” So, like, even you started out, you said, why is intellectual property not property? Well, first of all, it’s not “intellectual property”; that’s against the propaganda term. So the question would be, why are patenting copyright not property? But even that’s not the question, because the question is not whether something is property—property rights is just an institution; it just means ownership—so you wouldn’t say something weird like, why aren’t patents ownership? I mean, what you would say is, can you own ideas? Can there be a property right in ideas? And there cannot be, because property rights are always the legally enforced and enforceable right to exclude someone from a given use of a given resource, and the word “force” has to be in there because government courts actually use force, like, to back up a law. Like, if you have a right, it can be enforced, but you can only apply force, which is physical, against physical things, like your body or your other things that you own. So whenever you have something that pretends to be a property right in something intangible, like information, which is what patent copyrights pretend to do, it’s just a disguised way of really undermining actual property rights. It’s not really property rights in information because you cannot have that. All property rights are always necessarily property in other things. So even if you have a system of slavery, for example, if I own this slave, Sally, I mean, her body is a scarce resource, and I’m using state force or my personal force to keep her from running away, right? So I’m using physical force against her body, so I’m claiming ownership of body. Now, we would say that right is not legitimate because it’s not a justified claim, but that legally could be recognized. It’s possible to own another person; it’s just wrong. But it is not possible to own an idea because you can only use force against things that you can use force against, which are tangible, physical, material, you know, real things. So what really is happening, which the IP advocates never want to put it this way, is that what a patented copyright really are, it’s what I call a negative easement or a negative servitude. So everyone’s familiar with the negative easement in a homeowners’ association. In a homeowners’ association, a bunch of neighbors voluntarily sign a big contract, and they all agree to give up some narrow, limited rights in their own property, which basically is a negative right. It gives their neighbors not the right to use their house, but it gives their neighbors the right to veto certain uses of their house. So everyone says, okay, there’s gonna be no commercial uses of property in this neighborhood; it’s all residential, something like that, right? Or you can’t have a building more than three stories tall or two stories tall, something like that. That means that you’re—you can’t build a house that’s three stories tall, and you can’t put a massage parlor on your plot of land without your neighbor’s permission because you’ve given them, by contract, this veto right, which we call a negative servitude or a negative easement, in which, in a widespread form in a neighborhood, it’s called a homeowner’s association or a restrictive covenant, right? So those are perfectly legitimate because they’re contractual; they’re consented to; they’re legitimate because of consent. The whole essence of property rights means the owner of a resource is the one who can grant consent to others or deny consent to others; they can exclude them, or they can permit them to use that resource, right? So this is the difference between rape and between normal sexual intercourse or consensual sex, right? If a woman consents to sex with her body, she’s letting a man use her body for a certain purpose; it’s totally legitimate because she’s the owner; she can consent to it. If she doesn’t consent, we call that rape. So consent by the owner makes all the difference, right? And that’s the same thing with patents and copyrights and with negative servitudes. A negative servitude that is consensual is perfectly fine, but a patent in a copyright is the government granting to the holder of that right—the inventor or the author—the government is granting them a negative servitude over everyone else’s property, even though they didn’t consent to it. And you can see that because if I own a copyright, I can prevent you from printing a book with your printing press. That’s a negative easement. Or if I have a patent on a new laser printer design, I can prevent you from using your factory to make laser printers with your own raw—so that’s a negative servitude; that’s an injunction they’re getting against you. But the problem is, you didn’t consent to it. So you have what’s called, in the law of negative easements or negative servitudes, you have a burden to state, but you didn’t choose the burden. You can burden your state, that means you can divide your bundle of rights up if it’s by contract, but contractual consent. So the ultimate problem with patenting copyright is that it’s a taking of property rights in the form of a negative servitude, but it’s not called that because if you called it that, everyone would see that it’s a naked taking of property, and they would object to it. So the proponents lie and distort to make people think it’s an intellectual property right. There’s nothing—you know, if you’re in favor of regular property, you might as well be fair with this property. It’s very much like the price inflation issue. The government can tax people, and people know what a tax is, and they resist higher taxes because it’s an explicit and blatant and obvious taking of their resources, and they’ll put up with some, but the more the higher it is, the more they rebel. So the government does a second type of tax: they just debase the monetary supply by printing more money, and then when prices rise, the government calls that inflation, even though the real inflation of what they’re doing to the money supply, and then they blame the corporations, like Joe Biden is doing now. They’ll say, oh, it’s just greedy corporations raising the prices and taking advantage of the crisis in Ukraine to screw the consumer, right? In reality, when prices go up, that’s a hidden tax by the government, and it’s in its favored cronies, the banking industry and others, by taking the purchasing power of the average person away from them. But they don’t call it that because if he calls it that, people would rebel. So the government does lots of things that are sneaky ways of violating our rights and taking our property for their benefit and for the benefit of their cronies, and IP is one of them. IP is one of them; people contribute to their campaigns, yeah.

Universals Argument Against IP

23:43 Cody Cook: So, and so you’ve given some persuasive arguments for why what we call IP isn’t real property. In your book, which I think is just called Against Intellectual Property, am I right about that?

23:48 Stephan Kinsella: That’s right.

23:54 Cody Cook: You give one argument that you didn’t give here, which is kind of interesting, that owning ideas is like owning a universal, like you can own a red car, but you can’t own the color red, correct?

24:00 Stephan Kinsella: Correct, although, although I think the last time I looked at a bag of Reese’s Pieces, they had trademarked the color orange, that Reese’s Pieces, correct. But so, so that’s one argument. One argument is one that you’ve hinted at here, that IP conflicts with real property. So like, I can have—you know, I can write whatever I want on my own paper, right? But if somebody says, well, you can’t write my ideas on your paper, they’re saying that their intellectual property is more important than my physical property, that that trumps it, right? But the physical property is the thing that’s actually real, and the IP is abstract. So some of the people that argue for IP actually argue—they see, they seem to sense this conflict, and they’ll say that if they have to choose, they’ll choose intellectual property. They’ll say, well, if you believe in property rights in things in the world just because you find it and you mix your labor with it, you should believe even more strongly in intellectual property because that’s purely a creation of your mind. So, and but most of them, most of them seem to either deny that, deny the tension, or they say we can have—they say you can have both, like, oh, property rights are good, the more property rights the better, so we have property rights in real scarce resources, and now we can add them to other things. But what they don’t understand is that there’s always—nothing is for free, and so just like the welfare state liberals are in favor of welfare rights, which are positive rights, they just say, well, we should support negative civil liberties, like you know, you shouldn’t be murdered and stolen from and killed, let’s also have the right to education and the right to income and the right to health care. But you can’t have them both because when you have a positive right to welfare, that money has to come from someone; it has to be taken from someone, so it always comes at the expense. Just like when you inflate money, people—if you print more money, you make some people richer, but you debase everyone else. You can’t just print more money because printing money doesn’t create wealth; it just redistributes the existing wealth. A positive right to pay for someone’s education has to be taken from a negative right from somebody else and not have their money stolen. The same thing is true with IP because rights are always enforced in law. Now, the universals argument is one way of wording what I basically just said, and that’s Roderick Long’s formulation. The other way I look at it is, it’s like the reason the word “property” started being used is because—well, there’s a word “proprietary,” but that just means like you have a proprietary interest in something; it just means you’re the proprietor, you’re the owner; it’s another way of saying you’re the owner. But another way to think about it is this: if you have a body, now this I’m getting into sort of Mises and Human Action and his theory of what’s called praxeology, which is his idea that the way you understand and evaluate human action and economics is to conceive of us as actors—that is, an intelligent, goal-oriented, basically a mind with a body in the world who seeks to change things in the future. That’s what action is. Action is always—you observe what’s going on; you’re not happy with the way you think the future is going to unfold without your intervention, so you intervene. To intervene means to act. To act means to look around you and see what available tools you have, which are the scarce means or resources of action—what things can you use in conjunction with your body and controlled by your body to divert and change the course of affairs to make there be a different future state of affairs? That’s why that’s what all human action is; it’s always attempting to change the course of events by employing scarce resources, right? So when you when you when you use these resources, you start using these tools. So, like, let’s say you’re a simple man in the old times; you might have clothes, you might have a fur coat, you might have a spear, you might have a hut, you know, you have these things that that you control to control the universe, the world around you, and they become—you could say they become a property of yourself, like they’re—they won’t say the way you’re defined, but they become an aspect of yourself or characteristic of yourself because now I have the ability to throw a spear and kill an animal. So, like, you could say that spear is one of my properties, you know, just like my other properties would be my size or my weight or my height or my age or my strength; these are different properties of me, right? So you could say that well my skin color is one of my properties, my abilities are one of my properties, my memories are my properties, and this spear is one of my properties. So over time, we start calling the spear “my property,” and we think of it as a noun, so we think of the word “property,” and I think it’s sort of a mistake or at least people into a mistake because it’s conflating a casual, informal, colloquial use of “property” with the more legal definition. So again, people say, our ID is your property; it’s like, well, it’s a property of me, but it’s a characteristic of me, and this gets to these universal things. So, like, let’s say I have a red car; one of the characteristics or properties of the car is its color, it’s redness. Now I own the car, which means no one can use that car without permission. That’s what ownership means; it’s the right to exclude someone. But does it mean that I own red? Do I own the car’s color in addition to owning the car? No, that’s double counting. And if you say I own the car’s color and the car, that’s akin to saying I can have negative rights and positive welfare rights; you can’t have them both. In fact, if I say I own the car and it’s color red, then that is claiming an ownership of a universal. I’m claiming the property that things can have, but if I claim the property things can have and that property is red, then that means I own every other thing in the universe that’s red. So it’s a disguised way that would give me the right to own everyone else’s red car, even though they’re the owner of that car. So it’s just like a patent; it’s a negative servitude that would—or it’s even worse than that; it would just take away the ownership of the other thing. So this is why you can’t own properties of things; you can only own the thing itself. That is, and by that I mean specifically, property rights are a right to the physical integrity of a resource, not to its value and not to its properties. And so this, this is—and this is why intellectual property ultimately fails. It fails because information is never an independently existing physical object in the world. Information is always some pattern stored on some underlying medium because information can’t just float out there in the world. It has to—so, like, if you have a memory in your brain, then it’s the way your neurons are impacted, you know? You own your brain, but do you own the way they’re in patterned? It’d be like saying if you own a car, you own the color the car happens to be or the age of—you know, if I have a seven-year-old car, I don’t own seven years, you know? It doesn’t make any sense; I own the car. And so, and by the same token, if I have a book, like the novel Atlas Shrugged, the novel is the pattern of information, the sequence of words, but those sequence words can’t exist in a free-floating way; they have to be stored on an underlying physical medium, whether it’s a computer drive or a magnetic tape or a piece of paper with ink and pattern a certain way. And those underlying things, which you can call the media or a medium or a substrate, are always ownable things, and they have an owner. And again, those things are owned by who? By the owner, by an owner in accordance with homesteading and contract. An outside person doesn’t own it just because they have a book with a similar pattern, which is why if I write a novel on one piece of paper and then I may—I can keep that secret if I want, but if I choose to make it public by publishing it, like telling everyone, hey, here’s a pleasing sequence of patterns that you might like to read along and follow along and enjoy the plot of this story, if you tell everyone this information, then if they use that information to in-pattern their own underlying substrates—like if they print the same thing on their own paper—then you can’t own that arrangement because that would be like owning the color red. You don’t own the way your book is arranged; you only own the book itself. Yeah, which is, I mean, in ancient times, people would copy—you’d say, what do you have a scroll of Socrates or the Book of Acts or whatever? Can I copy that? And that was considered completely legitimate for forever, right? So, you know, so behind—oh, and by the way, we’ve left—this is all so far the principal case, the propertarian, natural rights principle view of all this. There’s a second argument that all the IP advocates they keep making, especially nowadays, it’s all utilitarian and empirical. They’ll say things like, well, without patenting copyright, because of the special nature of the way information products are valuable and can be copied easily on a free market, there’s not—it’s not easy for someone who makes these inventions or new artistic creations to recoup their costs because they would have—they would draw competitors really quickly who would knock them off.

Utilitarian Arguments and Empirical Evidence

33:13 Cody Cook: Yeah, I was going to get to that too. Yeah, so your argument about, you know, that real property is scarce and that’s why we have to have rules for how you determine who owns it does, obviously, doesn’t apply to ideas because ideas aren’t scarce. They can—I can have the same idea in your mind that you do, and I’m not stealing it from you; I’m not impoverishing you. But some folks who are in favor of IP would say, well, yes, you do impoverish somebody when you copy their ideas because then they—they’re not selling it to you; you’re just using it. And I think that argument is essentially what’s used in the Constitution of the United States where they argue that the protection of intellectual property—I don’t think they even use that word—they talk about patents is necessary because it advances the useful arts and sciences. And so their argument is not that intellectual property is a real thing, but that we’re going to pretend that it is because we think it will incentivize people to create new things if they get some exclusive use to earn profits on it for a temporary time. So what would you say to people like those—those people that you’re referencing would object that there’s a useful reason to have this, even if we acknowledge it’s not real?

34:12 Stephan Kinsella: So the proponents of intellectual property are a little bit sneaky and all over the map, so they will—they will go back and forth between this deontological or natural rights argument. They’ll say, well, it’s just—anyone who creates an idea should own it, like, you know, so they give this natural rights argument, although you wonder why they don’t want the rights to last forever then. Like, they say, well, it shouldn’t last forever though, because that’d be unreasonable. So, like, they sort of admit that there’s really another argument; it’s more of an instrumental or utilitarian case. And these guys now—well, a lot of them, like a lot of the Objectivist types who do argue that it’s a natural right, even though they perversely believe it’s just still be limited in time for some arbitrary reason—they will argue that the founders of the U.S. who put the copyright and patent clause into the Constitution to authorize Congress to pass these laws that we have now, that they viewed it as a common law right and as a natural right. They’re doing that to bolster their own argument that it’s a natural right, but it’s a complete lie and a fabrication because there were a couple of occasional scattered comments by people like James Madison saying it’s a common law right, but it was a complete topic; it was complete bullshit. Everyone knew it wasn’t a real common law right; they knew it wasn’t a natural right, and proposals to put that kind of language in the Constitution were rejected. And instead, they put in a utilitarian thing saying, to promote the progress of science and the useful arts, Congress has the power to grant for limited times these privileges to authors and inventors. So it’s explicitly utilitarian. So the theory there is that it’s not a natural rights argument at all; it’s that on a free market, you’re gonna have an underproduction of intellectual goods because of a market failure because these are public goods that can be easily copied, and it’s not easy to recoup your costs because competition is just too easy. So the government needs to come in and fix this market failure with a patch, and the market failure is that you have an underproduction of innovation. So you don’t have—you have some inventions, but you don’t have as many innovations and inventions as you would have if there wasn’t this market failure, and you don’t have as much artistic work as you would have without this market failure. So we’re going to fix this failure or at least repair it to some degree by giving people that produce these works a temporary monopoly to protect them from competition for a certain number of years after they start selling it, so they can charge a monopoly profit for a while and be free from—because they’re free from competition because it’s illegal for someone to compete with them—and then recoup their costs, and then they have the incentive to engage in the in the research and the innovative and creative activity in the first place. So that’s the theory. Now, the founders didn’t do some kind of empirical study with a bunch of empirical econometric economists; they just—they just came up with a rationale to justify what the what had been going on in Britain for a while, and keep in mind also that the people that drafted the Constitution, by and large, were the people that were authors; they were the ones that wrote—they published the books, and they were the inventors, think of Benjamin Franklin and Thomas Jefferson. So the people writing the Constitution were the very class of people that served to benefit; they served to gain from some type of legally enforced property right in these intellectual type of endeavors. So it was a little bit self-interested, right? So they put it in there, but it was never considered to be a natural right. And so, and so anyway, my point is, they didn’t do a study, so they just went with what I call a hunch, you know? They—let’s let—let’s assume good faith, although I don’t think it was really good faith; I think they were self-interested, but let’s assume good faith. They had—they thought, okay, this will—this will—this will increase the overall amount of innovation in society, and it won’t hurt anyone that much, so it’s a good thing. So it’s one little way we can tinker with the system to tweak and to slightly improve the free market; we can nudge it in the right direction, okay? Let’s give them that. Well, we’ve had 240 something years since then, and we’ve had advanced economic econometrics and util—in the whole economic profession who can do studies, and they basically started trying in the 50s—1950s—and, you know, Congress commissioned Fritz Machlup, who was a quasi-Austrian economist, to do this big study, and he did a huge study, and he concluded after researching everything that there’s just inconclusive evidence on the patent system, like there is no solid evidence that it does any good, and he said that if you know if we were starting from scratch right now, it would be irresponsible to start a patent system. But he also said, but we also don’t know that it harms, because basically there’s just no data. I think he was sensing that data—that value is subjective, and you can’t really measure these things anyway, so that’s why it’s better to go with a principled case and have a solid set of property rights and fundamental principles that you go by. But anyway, in the years since, no one has yet proven this. Every now and then, you have a bogus claim made by one of the industry, like the RIAA, the music industry, or Hollywood, or some—or the pharmaceutical industry saying some nonsense, like the Commerce Department, which runs the copyright office, says something like, oh, Commerce Department study proves that intellectual property contributes five trillion dollars to the U.S. economy. Now, what kind of study is this? All they did was they said, okay, the U.S. GDP is about 15 trillion a year—I think this is a few years ago—and about one-third of all the industries in the U.S. use intellectual property, like they produce things that are subject to copyright or they—they—they make up innovations that they can get patents on. Well, yeah, but that doesn’t mean that that’s the cause of it at all; it just means that the government has imposed this huge system which affects most of the economy; it doesn’t mean that it’s the cause of the innovation. So there are no good studies in this, and it just flies in the face of common sense. It’s quite obvious that the patent system, for example, costs tens of billions of dollars a year in the U.S. alone in cost of patent attorneys like me, lawsuits, not to mention distorted innovation because, for example, you can’t get a patent on a law of nature or abstract ideas, but you can get a patent on a practical application of that, so this distorts the natural division of research funding that would go to these different fields. It pushes it in the direction of practical things that can be patented, so that distorts things. Who can say that’s good? Everyone says, oh, it’s better to have more practical, yeah, but you’re going to have less theoretical research then. The government always distorts things when they intervene. It’s like price fixing; price fixing always has distorting effects.

Practical Examples and Incentives

41:17 Cody Cook: Well, and I was going to say, you give a lot more kind of data on—well, I guess you demonstrate the lack of data in support of, or for what IP does, right, that it does something beneficial, I should say. In a Soho Forum debate that you did somewhat recently, which I’ll link to in the show notes, “Abolish Copyrights and Patents,” I think was the name of it. And so, I mean, there’s one example that I think of in this kind of practical application thing. I have a wife who’s—I have my wife—I have one wife who’s a type 1 diabetic, and you know, patents make her insulin less affordable because there are basically three companies that have this sort of monopoly on this technology, and no one else is allowed to produce it, so they can keep the prices pretty high. And so to me, that seems like a good practical reason to get government out of the IP business. But someone else might object that getting rid of IP might de-incentivize technological advancement, and I think you seem to be suggesting that the evidence for that proposition is not very strong. But it does seem, you know, on when you think about who’s lobbying for these kind of protections, they’re the big producers of—of, well, not producers necessarily—but the—let’s see—the publishers and the manufacturers of technologies of books or whatever, and it seems that when you apply this to something like medicine, you could see, well, yeah, maybe if they really want these patents so badly, maybe this does encourage them to produce more. And so would we lose some of those advances or would that slow down if IP was not protected?

42:51 Stephan Kinsella: So let me give you a few responses. Once more fundamental response is that the way of framing this is in the favor of the IP people because once they get you saying, well, does this encourage innovation or not, they’ve got you already accepting the premise, which is hidden, which is that the purpose of government and law is to incentivize innovation or something or to maximize it or optimize it or something. When did that become the purpose of law? The purpose of law is to identify owners of scarce resources which are the subject of conflict by establishing property rules and enforcing them so that people can have—they can live their lives free of violent conflict from other people. That’s the fundamental purpose. That’s what justice—the purpose of law is justice. Justice—what does it mean? According to Justinian, the emperor from Rome, justice means giving someone his due. Now, what his due is depends on what his property rights are. His property rights are the time-tested private law rules of you own your body, you own resources you acquire, and you know that kind of stuff. So the purpose of law is to do that. It’s not to come in and tweak the rules to optimize some random factor. I mean, what if—what if we said, well, the goal of law is to optimize religious observance, or I mean, it’s any—any number of arbitrary values other than liberty and justice and property rights? You could pick innovation is not one of them. And there’s no stopping point to this because so you—you could argue that you have this much innovation with the patent system, without the patent system, and then you have say twice as much with a patent system. Well, there’s still some innovation left on the table because even charging a monopoly price for 17 years is—it does—is not going to give you enough incentive to recoup your costs for certain very, very, very expensive R&D projects. So maybe we should double the patent term, or maybe we should impose capital punishment, or maybe we should have a government taxpayer-funded prize system where the government awards an additional bonus to people who come up with unique things. If our goal is to maximize innovation, we could basically have a 99% tax rate and just pour it all into subsidizing innovators. It just makes no sense. And even if it did increase innovation on net, which I don’t think it does, but even if it did, it doesn’t mean that it’s worth it because it has to come at the cost of something else because it comes at the cost of basically an implicit tax on everyone else because when you have a monopoly price being charged, then it’s like a tax because people have less money left over in their pockets to spend on other things. Consumers have less money in their pockets to spend on consumption or investment, so there’s less money left over to engage in other activities which could have led to other consumer benefits, whether it’s production, new business ventures, or even other types of innovation, right? And second of all, and third of all, if you look at the actual studies, all the studies seem to conclude that the patent system basically is a drag on innovation on net. So I—I would—and now—so I was going to read you this. If people that are interested, they should go to my my podcast, which is on stephankinsella.com, and go to the Soho Forum episode, which I think is episode 364. I collect a lot of posts, different things, but I just had here a quote from Boldrin and Levine; there are two economists who have an empirical argument against patents. It’s called Against Intellectual Monopoly, their book. I just had here—they looked at a poll, the British Medical Journal readers, on the top medical milestones in history, and almost none of them had anything to do with patents. And this includes penicillin, X-rays, tissue culture, anesthetics, chlorpromazine, public sanitation, germ theory, evidence-based medicine, vaccines, the birth control pill, computers, or rehydration theory, DNA structure, monoclonal antibody technology, right? And the Center for Disease Control has a list of the top 10 public health achievements of the 20th century, and many of them came about without patents at all, like aspirin, AZT, cyclosporine, digoxin, ether, fluoride, insulin, medical marijuana, methadone, morphine, oxytocin, penicillin, phenobarbital, quinine, Ritalin, and vitamins. So it’s just not true that patents even are the main driver of these types of innovations. And furthermore, yeah, your wife’s—your wife’s insulin would be cheaper without patents, of course. And so you have—you have these blowhards like Bernie Sanders and these people saying we—the government needs to fight high prescription drug prices, yet none of them wants to go to the root of the problem, which is the patent system. None of them take the—say we should abolish or or reduce the patent term or abolish patents in pharmaceuticals. That’s the real—you can’t—if you intentionally—if the government grants a monopoly to pharmaceutical companies intentionally to allow them to recoup their costs, they’re recouping it by charging a higher price than they otherwise would have. That’s a monopoly price; that’s a high price, and then they complain about the high price. Sure, so it makes no sense. The government is schizophrenic. So the government imposes lots of cost on the pharmaceutical companies by imposing the FDA regulatory process on them, and then they say, well, these poor companies have such a high cost to recoup, which is imposed on them by the government by the FDA; we have to give them a patent system to let them charge a monopoly price, but then we’re going to criticize them for having a monopoly price. So—and by the way, you might be on violation of any trust law, which the government says you can’t have a monopoly price, even though we just gave you a monopoly to allow you to charge a monopoly price. So the government’s completely schizophrenic.

Communitarian and Ethical Perspectives

48:34 Cody Cook: Yeah, well, so good, good answers. So to shift gears a little bit here, so we’ve been talking about, you know, property rights and individual rights is kind of the basis of our argument against IP here. Richard Stallman, who is one of the major figures in the free or open-source software movement, argued that the ideology behind proprietary software, which is software whose code was hidden and protected so that it couldn’t be shared or modified, was antisocial and anti-human, so unethical, simply wrong, is what he argued. And that this is really an issue about what kind of society we’re allowed to have. He argued that humans are naturally communitarian, a desire to help one another, and so proprietary software inhibits this instinct. And somewhat similarly, as like a Christian theologian, I look at how early Christians copied and distributed copies of biblical books like mad because they thought the information was so essential, and they wanted to share it with their neighbors because love of neighbor was the highest interpersonal ethic for them. And so I—I think that a similar argument that Stallman’s making here and that I would kind of make for information sharing in a religious context could be made against the restriction of sharing any other kind of quote-unquote intellectual property. But these are different kinds of arguments than the ones you make. Like, I don’t think you would go along with Stallman and say it would be wrong for a software company to say, here’s an end-user license agreement that you’ll sign saying that you can’t do such and such with the software. You’d say that’s fine, right, because that’s an agreement that’s contractual?

50:06 Stephan Kinsella: Stallman has a confused understanding of property rights and capitalism principles, so he—he has some good instincts, but he confuses it all. Like, I think he’s in favor of an internet connectivity tax and alternatives to copyright and all this—copyleft—but which would all be meaningless and pointless without copyright. This is what they—so copyleft is sort of a response to the automatic nature of copyright, but it’s—I don’t like left because it—it’s an attempt to—it’s still standing on your copyrights and granting a license only on certain conditions, the condition that the guy using it or modifying it imposes a similar condition on their users. In all my writing, in the Creative Commons equivalent of that is CC—CC in—CC uh—CC SA, share alike. I don’t use SA; I use just BY or zero. BY means by means attribution; means like you can use my stuff as long as you put my name on it, and I don’t care about that. It’s just—it’s a way to impose one little cr—one little condition that will serve as consideration maybe, so the contract is a binding. I’m just trying to make it binding because it’s hard to opt out of copyright law. I do CC zero as well; I’m just—I’m afraid that won’t be legally effective. But anyway, if you abolish copyright, then software would automatically all be free and copyable, and a lot of these indi—a lot of these end-user license agreements would almost be unworkable in a world without copyright. They—they sort of—they’re done in the backdrop of a world with copyright. Without copyright, it’d be really difficult to have a lot of these end-use license agreements that said, I have nothing—nothing against any kind of freely negotiated enforceable contract between any two parties whatsoever. Unlike Stallman, I just think they would be impractical in most cases. So, for example, imagine a world without copyright: I write a book and I sell it on Amazon, and I get Amazon to agree to only release it to customers who sign an agreement promising not to ever copy the book, okay? That’s a contractual agreement; that’s perfectly legitimate. But either the agreement imposes a big penalty or a little penalty on them for violating the agreement. If it’s a little penalty, someone’s just gonna—they’re gonna violate it, pay the fine, and put it on the internet, and everyone’s gonna have it. So the only way to stop copying is to have a million-dollar penalty. Now, what—who’s going to buy a five-dollar book from me on Amazon and be subject to possibly a million dollars of damages in a contract breach when they can just go pirate a free copy somewhere? So if there’s a limit to how these things can really work in the real world—yeah, I—I believe—now—you were asking about—so I—I’ve actually talked a lot about this with Jeff Tucker, who’s a good buddy of mine, who’s—who’s been heavily involved with the Catholic Church, and he’s heavily involved with me on this anti-IP kind of mission, and he’s been appalled by and been arguing, yeah, it’s just appalling that the church—the Catholic Church or other Christian or other religious organizations, whatever—would ever enforce a copyright in—you know—the word of God or any religious tract that seeks to spread your religious faith. The whole purpose of your church is not to make money, and it’s not to stop people from spreading your message; it’s to spread the word, right? So it’s—it’s completely—the whole idea of copyright is antithetical to the idea of—oh—now I’m not saying you have an obligation to go out there and digitize everything you want to put up on your website for free, but at least don’t penalize people that want to make bootleg copies of something or cut and paste it and spread it around the world. I—I have the same view about libertarians, you know? If you’re a money-making author like Tom Woods or Michael Miles, and you’re—or someone who’s making money—I understand paywalling some of your stuff because your goal is to make money; part of your goal is to make money. Most of this libertarian stuff never makes money; it’s just like an academic article or something that that you’re hoping some people will read, and if you paywall and you threaten people, they can’t copy it without your permission, you’re intentionally slowing down the spread of an idea that you took a lot of time to develop for what—you’re not making—you’re not going to make money off of—of all—you’re not going to do is—it all you do is censor it and slow down its spread.

Cultural Impact and Remix Culture

54:31 Cody Cook: Yeah, well, so okay, so but to zero in on this a little bit, like to shift from Stallman, there was a documentary some years ago made called Rip: A Remix Manifesto that was focusing in on the kind of remixing and mashups and music and how intellectual property had kind of slowed down this process, and they make some pretty strong arguments, I think. But one of them is that culture used to be shared and belonged to everyone, and now because of copyright and publishers lobbying for special protections, we think of little pieces of culture as being owned by these different people.

55:08 Stephan Kinsella: That’s correct. And so that’s not really a—a property or—or kind of an individual rights argument; it’s more of a communitarian argument. But I wondered if those communitarian arguments had some resonance with you as well. To a degree, I mean, you know, the problem is when you see the effects of—we don’t—we don’t really have capitalism now; we have a bastardized monopoly capitalism or—we all—we have a type of fascism in a sense, right? We have—we have a—definitely a mixed economy. But then your average person, your average left-leaning person, thinks we have capitalism, so all these things they—they don’t like, they—they blame it on capitalism because they think we have that. So they start—you know, they—they oppose exploitation and objectification and commodity—excuse me—the commodification of everything. Now, a pure capitalist like me, I don’t oppose commodification at all as long as it is the result of a truly natural free market. Whatever happens happens; whatever people want to trade, you might—you might—you might oppose overly materialistic commodification on moral or personal preference grounds, but if it happens voluntarily, naturally, you’re going to have a certain amount of that, and that’s fine. I do think that the existence of IP has exacerbated that though and has given some grant—some—some—some ground to our communitarian—um—allies, adversaries—I don’t know what they are—but—but yeah, so I—I think that—here’s the way I look at it: copyright patent is the worst because patent impedes and distorts innovation, technical and scientific innovation, and that does the most material damage to the human race because the way we survive and prosper and even maintain our standard of living in the face of growing government taxation and regulation is because we always keep improving productivity by increasing our technical knowledge. That’s what innovation is, and so over—over every generation, we get richer and richer because we develop more—more and more knowledge. And if you believe, as I do, that the patent system slows that process down, then we’re slowing down the prosperity; we’re reducing the prosperity of any given generation of the human race and literally killing people—lots of people. So patents are the worst. Copyrights are number two; they’re worse in some ways because patents last 17 years, copyrights last about 120, 30 years—it’s insane; the term is insane. Copyrights don’t do as much material damage, but they do more cultural and spiritual damage in a sense because it distorts the culture heavily. So who knows what types of artistic creations would be prevalent now if not for copyright threats, documentaries are just—or—or you know—or disincentivized, or the way you shoot them—you can’t shoot in certain buildings because there’s copyrights; you can’t—certain people because they have an identity right, and you gotta be—you might get sued for defamation or trademark infringement. There’s—there’s a proliferation of certain cookie-cutter sequel-type movies because the studios own the copyrights and the trademarks for those characters, and they can stop anyone else from making a sequel. Remix culture itself has been heavily—yeah, I think it started out like—like the rappers and these people did a lot of the remixing and the sampling; they started doing it ignoring copyright law, but then all the lawsuits started, right? And so now there’s a chilling effect, and you could say, well, you should respect people’s property rights, but you know, we don’t know what we’ve lost is the point. There’s a—there’s a really good pioneering—like 70-page law review article I just posted on it on my website, c4sif.org; it’s about how copyright literally stifles technological innovation because if you just think of the Napster example—like this Napster music service around the—in the around 2000 came—like in the dawn of the internet—like, hey, we can take advantage of—of MP3 files and streaming, and we can start making music available to people; you don’t have to go buy a CD anymore, you know? And that was popular with people, but of course the—the music industry shut it down with lawsuits, and that—that—that exerted a huge distorting and chilling effect on music for—for the last 30 years. Finally, iTunes had a success, but we don’t know what we’ve lost; we don’t know what we’ve lost. You know, there was a famous case in the 80s, the Sony or the Betamax case, where the recording industry was suing the—the VCR machine, which—if you remember—people used to rent movies on VCRs, then they—they got the ability to record on them; they started recording their television shows, trading, you know, things like that, and of course there was a lawsuit against that. And in the Supreme Court, it was—I think it was five to four decision in favor of the home user saying it’s a fair use—if you can get a broadcast over the airwaves and watch an ABC show, you can record it for your own private non-commercial use. Yeah, no, that’s not—that wasn’t a given; that—that decision was going to be the case because the fair use factors are vague and subjective; they’re not objective. And the court—the case was five to four; it could have been—it could have been the other way around, which would have totally killed everything; would have killed Hollywood Video, Blockbuster Video—I mean—you know—it would have killed everything that came after it; would have changed everything, and it has changed it. We don’t know what we would have had otherwise. So copyright distorts and impedes cultural creativity, including the remix culture. So I think it’s a shame. You do have some innovations on occasion try something, but then they’ll get shut down if they’re too blatant about it. I mean, TikTok has this kind of cool thing where people make these little TikTok videos, and you can do a side-by-side thing; you can have your commentary video, all these kind of things, but you got to be careful what you do because if it’s a copyrighted video, then you can be in trouble. But really, what’s wrong with that? This is all—this is the way the culture would work in the absence of the of the copyright controls.

Closing Remarks and Resources

1:00:56 Cody Cook: Yeah, absolutely. Well, Steph, it’s been about an hour; I don’t want to take too much more of your time. I want to reference your website, which anybody watching can see the—the links on the bottom of your—your image there, but stephankinsella.com—that’s Stefan with an A. Your Twitter is at NSKinsella, and you’re the website, which I don’t—I don’t know if I’d check that one out yet—the—the c4sif—what—what is that one.org?

1:01:24 Stephan Kinsella: That’s just—I created that a few years ago. It’s just—it stands for Center for the Study of Innovative Freedom. It’s basically—I just kind of offload most of my intellectual property-related stuff onto that site, so it’s still my publications and my speeches, but it’s mostly the IP-related ones.

1:01:41 Cody Cook: Awesome, cool. I’ll link to all that stuff on the—on the show notes for anybody who’s interested. I really appreciate you taking time to—to—to join us and talk with us a bit about this. It’s really, really interesting stuff, and I’d imagine a lot of people listening haven’t heard this before. Their probably intuition was—is similar to mine, which is to go, I don’t know about this, but I think if they follow it up, it’s going to make more and more sense the more they think about it.

1:01:59 Stephan Kinsella: Yeah, it’s one—it’s one of these areas where it is hard to figure out because of the confusion spread by the people who don’t know what they’re talking about or who do and they’re sort of malevolent about it. But it’s one of these issues—it’s a one-way issue. I have hardly ever seen someone go from my position to the pro-IP position, but I’ve seen lots of people go from a mild or pro-IP position, and once—once you see it, it’s like something you can’t unsee. Once you understand how bad it is, and then you’ll start seeing it everywhere, like I do. Yeah, like you’ll see IP—all IP damage everywhere in society. It’s—it’s everywhere.

1:02:43 Cody Cook: Yeah, well, I think for me, the question is, do you want to live in a society that’s more communitarian? Do you want to live in a society with less violence because you don’t have the state trying to enforce these ideas? You want a society that’s more free? And I think if your answer to those questions is yes, then you should be interested in—just this argument against intellectual property. So thank you so much, Stephanie; I really appreciate your time. Thanks.

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