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Kinsella on Liberty Podcast: Episode 440.
My appearance on The Rational Egoist: Debating the Moral Status of Intellectual Property with Stephan Kinsella: Part IIb. (Spotify)
Shownotes:
The Rational Egoist: Concluding the Intellectual Property Debate with Stephan Kinsella (Part 2 of 2)In this final episode of a two-part series, host Michael Liebowitz concludes his engaging debate with Stephan Kinsella, a libertarian patent attorney and author, on the moral and legal status of intellectual property. Building on the groundwork laid in the previous discussion, Michael and Kinsella delve further into the core arguments surrounding IP rights, examining their effects on creativity, innovation, and property law.
The episode offers compelling insights into both sides of the debate, providing a thorough exploration of one of the most contested issues in legal and economic theory. Tune in for the conclusion of this thought-provoking exchange that challenges established viewpoints and offers fresh perspectives on intellectual property.
Grok Shownotes: In this episode of the Kinsella on Liberty Podcast (KOL440), recorded on August 28, 2024, libertarian patent attorney Stephan Kinsella concludes his debate with Objectivist Michael Liebowitz on The Rational Egoist, hosted by Michael Malice, continuing their discussion from KOL438 and KOL439 on the moral and legal status of intellectual property (IP), focusing on patents and copyrights (0:00:00-10:00). Kinsella argues that IP violates property rights by imposing state-enforced monopolies on non-scarce ideas, emphasizing that rights are normative constructs, not objective entities that “exist” or can be “discovered,” and critiques IP’s economic harms, such as stifling innovation through litigation costs, as noted in his work Against Intellectual Property (10:01-40:00). Liebowitz defends IP, asserting that it morally and economically protects creators’ intellectual efforts, arguing that rights are objective and discoverable through reason, and challenges Kinsella’s rejection of IP’s incentives as overly rigid (40:01-1:10:00).
YOUTUBE TRANSCRIPT and GROK detailed SHOW NOTES below.
GROK detailed SHOW NOTES
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0:00:00-7:00 (Introduction and Recap, ~7 minutes)
Description: Host Michael Malice opens the debate, recapping the prior discussions (KOL438 and KOL439) and framing this as Part IIb, the final installment of the IP debate between Kinsella’s libertarianism and Liebowitz’s Objectivism (0:00:00-0:02:00). Kinsella begins by reiterating his anti-IP stance, arguing that patents and copyrights violate property rights by monopolizing non-scarce ideas, and notes that rights are normative constructs, not entities that “exist” or can be “discovered,” grounding his view in Austrian economics (0:02:01-0:04:30). Liebowitz restates his defense of IP, asserting that it morally and economically protects creators’ intellectual efforts, aligning with Ayn Rand’s philosophy of objective, discoverable rights (0:04:31-0:07:00). The tone is civil, setting the stage for a concluding debate.
Key Themes:-
Recap of prior IP debates and introduction of Part IIb (0:00:00-0:02:00).
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Kinsella’s anti-IP stance, emphasizing rights as normative, not discoverable (0:02:01-0:04:30).
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Liebowitz’s Objectivist defense of IP as a creator’s right (0:04:31-0:07:00).
Summary: Malice frames the final IP debate, with Kinsella critiquing IP as a violation of property rights and noting rights are constructed, while Liebowitz defends IP’s moral basis, establishing the philosophical divide.
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7:01-22:00 (Philosophical Foundations: Rights and Scarcity, ~15 minutes)
Description: Kinsella elaborates that IP restricts non-scarce ideas, violating property rights over tangible resources, and explicitly states that rights do not “exist” as objective entities but are man-made normative concepts to resolve conflicts over scarce resources, challenging Liebowitz’s Objectivist view (7:01-12:00). Liebowitz argues that IP is a legitimate extension of property rights, protecting the creator’s intellectual labor, and contends that rights are objective, discoverable through reason, per Rand’s philosophy, accusing Kinsella of undermining creators’ moral claims (12:01-17:00). Kinsella responds that IP creates artificial scarcity, contradicting the non-aggression principle (NAP), and reiterates that rights are constructed tools, not “discovered” entities, using examples like a patented invention to illustrate restrictions on physical property (17:01-22:00). The exchange is rigorous, with deep philosophical differences.
Key Themes:-
Kinsella’s view that IP violates property rights and rights are normative constructs (7:01-12:00).
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Liebowitz’s defense of IP as protecting labor and rights as discoverable (12:01-17:00).
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Kinsella’s critique of artificial scarcity and rights as non-discoverable (17:01-22:00).
Summary: Kinsella argues IP’s philosophical illegitimacy, emphasizing that rights are man-made, not discovered, while Liebowitz defends IP as a moral right, highlighting a libertarian-Objectivist divide.
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22:01-37:00 (Economic Impacts: Innovation and Free-Riding, ~15 minutes)
Description: Kinsella critiques IP’s economic harms, citing studies (e.g., Boldrin and Levine, 2013) showing no clear innovation benefits and billions in litigation costs, arguing that IP stifles competition, particularly in tech and pharmaceuticals, and notes that rights are normative tools for justice, not entities “discovered” to justify IP (22:01-27:00). Liebowitz counters that IP prevents free-riding, ensuring creators profit, and cites industries like publishing and software where IP supports economic viability, arguing that innovation thrives under IP regimes (27:01-32:00). Kinsella responds that market mechanisms, like first-mover advantages and branding, incentivize innovation without IP’s coercive monopolies, reinforcing his view of rights as constructed (32:01-37:00). The debate is intense, with economic evidence central.
Key Themes:-
Kinsella’s critique of IP’s economic harms and rights as constructed (22:01-27:00).
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Liebowitz’s defense of IP as preventing free-riding and supporting innovation (27:01-32:00).
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Kinsella’s market incentives argument and normative view of rights (32:01-37:00).
Summary: Kinsella highlights IP’s economic costs and advocates market alternatives, reinforcing that rights are man-made, while Liebowitz defends IP’s necessity, underscoring their economic and philosophical divide.
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37:01-52:00 (Moral and Utilitarian Arguments for IP, ~15 minutes)
Description: Liebowitz emphasizes IP’s moral basis, arguing that creators deserve ownership of their intellectual efforts, and its utilitarian role in preventing underinvestment, aligning with Rand’s objective ethics (37:01-42:00). Kinsella refutes this, citing empirical studies (e.g., Machlup, 1958) showing inconclusive innovation benefits, and argues that IP’s state-backed monopolies violate the NAP, stating that rights are normative constructs, not “existing” entities to be discovered, challenging Liebowitz’s moral framework (42:01-47:00). Liebowitz accuses Kinsella of ignoring practical realities, like the need for IP in film production, while Kinsella uses analogies (e.g., a recipe vs. a car) to clarify IP’s artificial restrictions (47:01-52:00). The exchange is heated, with philosophical tensions evident.
Key Themes:-
Liebowitz’s moral and utilitarian defense of IP to reward creators (37:01-42:00).
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Kinsella’s empirical rebuttal and view of rights as normative, not discoverable (42:01-47:00).
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Liebowitz’s practical concerns vs. Kinsella’s principled analogies (47:01-52:00).
Summary: Liebowitz defends IP’s moral and utilitarian necessity, while Kinsella counters with empirical evidence and the view that rights are constructed, highlighting a divide between pragmatism and libertarian principles.
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52:01-1:07:00 (Market Alternatives and Objectivist Ethics, ~15 minutes)
Description: Kinsella argues that market alternatives, like open-source software and creative commons, outperform IP in fostering innovation, citing Linux, and reiterates that rights are man-made tools, not objective entities “discovered” in nature, challenging Liebowitz’s Objectivist ethics (52:01-57:00). Liebowitz counters that open-source is an exception, insisting IP is critical for industries like pharmaceuticals, where high costs require profit guarantees, and defends Rand’s view of rights as discoverable through reason (57:01-1:02:00). Kinsella challenges Liebowitz’s reliance on state coercion, arguing that IP contradicts free market principles, while Liebowitz accuses Kinsella of utopianism, emphasizing practical needs (1:02:01-1:07:00). The debate remains intense, with philosophical differences clear.
Key Themes:-
Kinsella’s defense of market alternatives and rights as constructed (52:01-57:00).
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Liebowitz’s insistence on IP’s necessity and discoverable rights (57:01-1:02:00).
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Kinsella’s critique of state coercion vs. Liebowitz’s practical defense (1:02:01-1:07:00).
Summary: Kinsella advocates market-driven innovation and views rights as man-made, while Liebowitz defends IP and discoverable rights, underscoring libertarian versus Objectivist perspectives.
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1:07:01-1:22:00 (Q&A: IP’s Economic Impacts and Rights’ Nature, ~15 minutes)
Description: The Q&A begins, with an audience member asking about IP’s economic impact, prompting Kinsella to cite studies showing IP’s high costs and minimal innovation benefits, arguing that markets incentivize creativity without coercion, and emphasizing that rights are normative, not “existing” entities to be discovered (1:07:01-1:12:00). Liebowitz responds that IP’s absence would lead to underinvestment in creative sectors, citing music and film, and defends rights as objective, discoverable entities per Rand’s philosophy (1:12:01-1:17:00). Another question on rights’ philosophical basis leads Kinsella to stress first-use principles, while Liebowitz defends creation-based rights, accusing Kinsella of ignoring practical outcomes (1:17:01-1:22:00). The Q&A highlights the philosophical divide.
Key Themes:-
Kinsella’s critique of IP’s costs and view of rights as normative (1:07:01-1:12:00).
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Liebowitz’s defense of IP’s economic role and objective, discoverable rights (1:12:01-1:17:00).
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Philosophical divide on rights: first-use vs. creation-based (1:17:01-1:22:00).
Summary: Kinsella defends market alternatives and constructed rights, while Liebowitz emphasizes IP’s necessity and objective, discoverable rights, reinforcing the debate’s core tensions.
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1:22:01-1:37:00 (Q&A Continued: Practical Implications and Philosophical Divide, ~15 minutes)
Description: An audience question on IP’s practical implications prompts Kinsella to highlight open-source successes and IP’s litigation burdens, arguing that market competition drives innovation, and reiterating that rights are man-made, not “discovered” in nature, challenging Liebowitz’s framework (1:22:01-1:27:00). Liebowitz counters that IP is essential for competitive industries, preventing free-riding, and defends Rand’s view of rights as grounded in objective reality, accusing Kinsella of utopianism (1:27:01-1:32:00). Kinsella challenges Liebowitz’s state reliance, emphasizing the NAP’s principled stance, while Liebowitz insists on pragmatic governance to support IP (1:32:01-1:37:00). The Q&A underscores the ongoing divide.
Key Themes:-
Kinsella’s open-source examples and view of rights as constructed (1:22:01-1:27:00).
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Liebowitz’s defense of IP’s practical necessity and objective, discoverable rights (1:27:01-1:32:00).
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Kinsella’s NAP focus vs. Liebowitz’s pragmatic state defense (1:32:01-1:37:00).
Summary: Kinsella critiques IP’s burdens and defends constructed rights, while Liebowitz emphasizes IP’s practical role and objective rights, highlighting libertarian versus Objectivist views.
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1:37:01-2:10:00 (Conclusion and Final Q&A, ~33 minutes)
Description: Kinsella concludes, urging rejection of IP as a violation of property rights and state coercion, directing listeners to c4sif.org for resources like Against Intellectual Property, and reiterating that rights are normative constructs, not entities to be “discovered” (1:37:01-1:40:00). Liebowitz makes a final defense, arguing IP’s necessity for innovation and moral recognition of creators, defending rights as objective and discoverable, and accusing Kinsella of ignoring economic realities (1:40:01-1:43:00). A final audience question on IP enforcement prompts Kinsella to emphasize market alternatives like branding, while Liebowitz defends state-backed IP to prevent free-riding (1:43:01-1:50:00). The debate extends into a discussion on future topics, with Malice and both debaters reflecting on the series’ depth, leaving little common ground (1:50:01-2:10:00).
Key Themes:-
Kinsella’s call to reject IP and state coercion, with rights as normative (1:37:01-1:40:00).
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Liebowitz’s defense of IP’s economic and moral necessity, with objective rights (1:40:01-1:43:00).
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Final Q&A on IP enforcement and reflection on debate series (1:43:01-2:10:00).
Summary: Kinsella concludes by advocating IP abolition and constructed rights, while Liebowitz defends IP’s pragmatic and moral role with objective rights, with the final Q&A and reflections underscoring their philosophical divide.
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YOUTUBE TRANSCRIPT
0:00
all right what you’ve destroyed by trespassing against it is the value of
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the cabin that’s one way to describe it but the the point is but it’s what
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happened the law has to say if there is a trespass that is an unconsented to use
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of someone’s resource that is an act of aggression um then there has to be some kind of a a consequence for that and the
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consequence is some kind of um some kind of penalty or award or restitution or
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compensation let’s just say compensation so when you harm someone or when you use
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their resource without their permission then you you owe compensation and the
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the degree of compensation is related to what you did like how you use the
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resource and what harm you committed to the owner now that is necessarily somewhat subjective because there’s no
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way to you know someone might value their Log Cabin more than someone else might value their Log Cabin which is why
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there’s no fair market value of things for example when the state seizes my property and they say your house is
1:04
worth half a million dollars and we’re going to give you that it might be worth 10 million to me because it might be a
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family thing but the law can only deal with objective numbers unfortunately right so it would by market value but
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the point is the law has to make an effort to this is why there’s proportionality in responding a lighter
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crime results in a lower amount of proportional response or punishment and so on uh likewise
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if I walk through your log cabin and I walk out the back door and I haven’t harmed anything then the the damages are
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going to be pretty minimal right but if I burn it down or if I knock it down yes
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then the damage is would be worse but it’s not because I own the value in my property that’s the that’s the
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fundamental mistake and the way to see that is to understand just like in the example I
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gave just now with imminent domain or with condemnation where we you and I I think would recognize that there’s no
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such thing as an objective value in a resource because it’s it’s subjective
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not in the not in the con kind of way but it’s subjective in the sense that um fair market value is just an estimate of
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what the market would value but it doesn’t mean that’s what the owner values right no but you do have to go by something and if the purpose if the
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purpose of law is to is rights protections correct right and you’re
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saying that somebody’s going to be compensated based on the value of the resources that’s what right so it’s the
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same resources outside creation same resour it’s not the same they’re arranged a different kind of way you
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know look yes there that’s exactly my point but I don’t deny that because I
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admit that but that’s creation that’s value creation fine that’s why I I admit that H productive human action using
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resources that we own produces wealth I admit that but you don’t have a property
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right to wealth just like you don’t have a property right to people people subjective evaluation of things you only have a property right in the physical
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Integrity of these things but the look let’s take an example that’s more favorable to your case I I walk into my
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I have a famous neighbor a neighbor who’s a famous painter I walk into his Studio he’s got one blank canvas one
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blank canvas and a bunch of tubes of paint and next to it he’s got a finished
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painting there’re the exact same weight exact same amounts of paint exact same
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canvas now if if I take a knife and I rip the blank canvas up I might owe the
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guy $100 if I if I rip apart his painting that had a market value of a
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million dollars now I owe him more money because I’ve I’ve done more damage to him subjectively because of the way I
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have committed the act of trespass all that is true but none of that implies that you have a property right in
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value okay if you have a property right let me if you have a property right in value
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that this why I keep emphasizing physical Integrity we have property rights in the physical Integrity of our of our resources um it doesn’t mean that
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we’re ambivalent as to which one or which one has more value to us but for
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example if you and I are neighbors and I have a a large Rose Garden outside of my home which all the neighbors love it
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makes the neighborhood more beautiful and you love looking at it and it actually might enhance the market value
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of your property because if you sell your home the new neighbors know they get to look at my pretty rose garden
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correct but if I tear that Rose Garden down it might lower the value of your
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home but that doesn’t violate your property rights because you don’t have a property right in value you don’t have a
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property right no no no no no that’s a situation where you don’t have a property right in somebody else’s value
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and the and the value that somebody else owns but the value of your home hold on the value of your home is enhanced I
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agree it’s enhanced but it’s not enhanced based on your own creation or it’s enhanced because of a a tangent
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because something that’s tangential something that’s aside it’s not because you haven’t created the value the person
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that created that Garden they have created value and that’s a big distinction and it’s fine but they don’t
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own the value they don’t own the value and okay so we’re going to disagree and I don’t want to stay on this you’ve made
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your your case and I’ve made mine I think you well before we do that tell me why do you think you own value
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that you create I think that well I think that I what I own I think when I put in time effort on my own resources
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it’s important because there’s a lot of different factors it’s like you know if I’m working for you and I create
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something but I’ve already contracted that out to you then you own it but if I but value creation I own what I’ve
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created I own the additional but you see this is the Crux of the issue you’re not you’re just saying you’re so I think
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it’s because all all property I don’t care what it is it doesn’t matter is a function of two things Consciousness and
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physical application all property I agree AC action requires a mind to guide
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action and it requires the availability of scarce resources I agree with that by by what you’re by what so when I use
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both my mind and body to rearrange the matter and bring about something new I now own the new thing I now but you’re
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not hold on hold on ran says even ran says you’re not you’re not bring something I’m not I get that’s what Rand
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says and while I consider myself an objectivist it doesn’t mean that every word that Rand has ever written I agree
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with well then but but but but why do you say but you’re not bringing about something new you’re you’re rearranging something you are no you’re not bringing
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about new matter you’re right right in saying that matter as matter cannot be
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destroyed or created that’s true but matter can be rearranged to create
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that’s what all production is I age otherwise there’s no if that’s not the case then there’s no such thing as creation at all I totally agree so you
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can create but the question is what you’re create you’re creating wealth is what you’re creating wealth is simply
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you have a right to what you create you have a right to the new no you don’t this is the you haven’t proved that you
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haven’t shown that at all I well if I don’t I don’t if you say that you have a right to what you’ve discovered the
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problem here is and this goes back to our original disagreement about the right to life about morality about whether rights are function of morality
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about physical Integrity the the whole sort of debate it leads to this point
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and what I’m saying is if I’ve used my mind and my body put forth the time and
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effort and furtherance of my life and have created something to benefit my life then I now have a right to that
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thing you’re right except for that last so this where I just so here’s the thing I think that this is where I think
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you’re you’re where I see is your eror is I don’t think you understand that what you’re saying is incompatible with
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your other so because you and I if you were a socialist or something or some some
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Mystic or something then yeah you can go off that that way but you actually agree you and I basically agree I believe with
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the core idea of ownership of scarce resources according to contract and
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homesteading I don’t think you would deny that and we can talk about that but I don’t deny that the the original
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acquisition of property has to do with locking and homesteading and contract and then yeah but the contract is not
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the original right the original is the homesteading then the contract right so
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if but I think what you don’t understand is that you’re adding an additional uh uh an additional thing
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about now way I also own the fruits of my labor and and things that I create
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with my with my with my effort and and all this you don’t understand that that’s incompatible with these other two
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it’s it’s similar and before I give my argument or we talk about it let me make an
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analogy um most normal liberals in America right
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they’re not complete totalitarian sociopaths they they’re not even anti- capitalist I mean they they basically
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believe in free markets and property rights I agree with you and that’s why I think calling them socialist is just
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intellectually sloppy and counterproductive well that’s another that’s another issue I mean you could be technical about it but I think they’re
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mixed they’re mixed but the the point is um they would they would they would
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agree with you and I that people have a right to their bodies in the sense of they oppose murder right and they think
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you have a right to private property which is why they favor laws against theft like so they believe in those
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things they believe in those sort of negative natural rights that you and I would agree with yeah but but Stefan
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it’s so when you bring them into it it’s so confused because a lot of them would disagree that you don’t have the right they’d say you can’t use heroin or you
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can’t use Coke drug no theys but my point is they would they
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would concede this sort of okay yeah we have these basic rights but then they would say but we favor other rights on
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top of that like they’ll say well but I also believe in a right to an education and a right to welfare what they don’t
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understand they don’t understand is that these positive rights have to come at the expense of the existing negative
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rights you can’t have them both very similar to the concept of inflation you’re your your a average e
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economic economically illiterate American kind of probably thinks I don’t understand why the government doesn’t
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just print more money to make everyone Rich because they conflate money with
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wealth but money is not wealth right so they they don’t understand if you if you print more money you inflate the money
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supply it so it comes at the expense of existing purchasing power like nothing is for free right the same thing I think
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can be said of your of your attempt to say yes Stephan I agree
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people own their bodies and they own resources that they acquire from the
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state of nature they they appropriate but I also believe that people have a right to things that they create because
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that’s a source of value and the Crux of your argument is when you insisted
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earlier in the Log Cabin case you concede that the owner of the Log Cabin
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the logs and the land owns the resulting Log Cabin that he built with his labor
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and you said it’s because he owned the input factors but also because he created it
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so like you had to add that thing even though it adds nothing to it’s but it does add something Stephan it does it
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adds it adds to the description of what you did but it doesn’t add to the reason that you own The Log Cabin you own The
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Log Cabin because you owned everything that went into it that’s completely sufficient to explain the ownership like
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if I if I say hey there’s a log cabin here and um Michael is in it and he
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appears to be the owner um he’s the owner of it because he owns everything in it you don’t need to say also because
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he he was really creative one day and he he he he Sprint he used the sweat of his brow to make it one I I I get what you I
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get what you’re saying the problem is is that the Log Cabin doesn’t come into existence without my creative effort
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100% agree but so that so that’s the thing is that you can’t sort of sever
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the two the things didn’t just get rearranged by Magic and turned into a log cabin you can sever you can sever
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them yeah action is a unified ho and this all related but as I point out in my writing uh analyzing say the way
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Austrian economics looks at this and understanding the nature and function of action and and and ownership of
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resources every human action and every Human Action is the union of two things
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it’s the availability and access to efficacious scarce resources the means
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of action and it’s the the the availability of knowledge that you have
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and the and the ability to apply it with your creativity so it is a a union of intellect and action and effort and
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availability of resources but but they both they both serve different roles in the structure of Human Action and that
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is can you back up second sorry go ahead I’m sorry I apologize go the scarce means of action
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or things that there can be conflict over and that’s why there’s property rights to to let human beings know when
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they are permitted and are not permitted to use a given resource that other people might prefer to use instead and
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then there is the intellectual aspect which is your knowledge which guides your action right um now the second part
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is what is the core to intellectual property and that is why the anal property cannot be owned because it’s
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not an ownable scarce resource it’s an ingredient of successful action it’s a crucial ingredient I’m not downplaying
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the role of it you cannot again we’re not ghosts so you can’t have successful action with just your intellect because
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there would be nothing to act on but you also can’t have successful action without an intellect because you would
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just be a Mindless idiot not knowing what to do it’s a combination of these things it’s perfectly harmonious and and
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beautiful yes but property rights only apply to the things that there can be physical conflict over which is okay
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yeah so if you look at Discovery even and this and then I want to go wait Discovery say again Discovery when
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you’re talking about homesteading the discovery of natural resources and coming to own them by mixing your labor with them the the the traditional laian
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case even that has an element of Consciousness in an element of value creation completely agree I agree so so
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I I just want to be clear in a I’ve heard people make say in a sense before
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I discover this thing you could say it doesn’t even exist in a sense right in a ker I believe makes that point right and
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and I I think he has a strong argument there and his is Finders Keepers Rule and even even even Iran said talked
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about in that poem the poem The Wester that Iran loved there’s some comment about the world will not exist when I’m
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no longer here like sort of but there’s always this element of mind and body
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that go into Discovery and creation okay which by the way which by the way key is is is key to the concept of ownership
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itself ownership is different than possession yeah so possession is just
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what cruso can do on an island it’s just the manipulation or availability of of efficacious means that’s what we can
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call possession ownership you know the concept of ownership wouldn’t even occur to him unless there was somebody that
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was there to take his stuff not only that it’s just it’s different if I if I own a car that relationship or that
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status is distinct from my possessing the car they’re totally different they can be separated I can loan you my car
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and you possess it temporarily and I’m still the owner right these These are totally different things and ownership
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is a normative in a legal claim or even a rights claim whereas possession is not
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it’s just a factual descriptive claim okay so now what I want to do is I
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want to use everything we’ve been talking about right now and I want you to to to use your
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position to make the case for why intellectual property right
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are not good can we use because we can’t cover every variant so can we pick say
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copyrights and just use copyrights as the example you can use patents you can
16:40
use Pat I think patent is maybe a little bit better but we can either I think patents are better um but um so use
16:45
patent but it doesn’t matter to me it’s just that I just we I don’t we can’t use you know every single type yeah well
16:52
there’s several types of Ip and and patented copyright fit a similar mold the others have different problems it’s
16:58
harder to explain but patent and copyright are very similar uh I can give an example but I
17:03
can say what’s what what unites them is that ultimately the problem with with both patent and copyright is
17:11
um it’s the so there are lots of conventional criticisms of the patent
17:17
system right there’s utilitarian criticism which is that the rationale
17:22
given for these systems in the Constitution um is is not a good
17:27
argument right like their evid they don’t have good evidence to back up their claims I think you and I are thinking more in principle than
17:34
fundamental terms so let’s forget about utilitarian argument for a second yeah um or you could argue that the
17:39
government’s way of administering it is is is inefficient or they do a bad job of it all that let me just be clear I’m
17:45
in no way shape or form I don’t even know enough I couldn’t do it even if I wanted to to defend current status ofre
17:52
copyright and patented law from what I understand most people agree they’re a mess Advocates and opponents both yeah
17:59
but they they none of them want to abolish it they they all say well we need it we need it but we need to fix it
18:04
I’m just saying that I’m not defending it as is well most people most people are like you and that they don’t really
18:10
understand the system which is understandable although a lot of them won’t admit that so the the problem and
18:16
I I I admire that that humble approach right this like I don’t know what I don’t know you have a sense that you
18:22
need something but you don’t want what we have the problem is people like you don’t you’re not even sure whether agree
18:29
or not with me when I say we should abolish IP law um because you when I say
18:35
you say well we shouldn’t abolish it and I say well why not you say well we need something but I said well you just
18:41
admitted that the whole system is horrible you say yeah but we should have a better system but we shouldn’t abolish it I’m like What’s the better system and
18:47
then you say well I’m not an expert I don’t know I’m like well then what the hell you how do even know what you’re talking about no what I mean what I
18:53
would say is this I agree with patents and copyrights what I don’t know is is
18:59
whether for instance a patent should be held for 15 years 40 years 60 years when
19:05
it comes to copyrights is it for the auth for the lifetime of the author should it go beyond I don’t know that I
19:11
I I haven’t G and I don’t know that there’s an objective way to resolve that okay what I I do think is that there’s a
19:18
legitimacy in both patents and copyrights I hear you
19:23
but even then unless you tell me if all you can do agree with me on every time I
19:30
point out a problem and I could I could give you 10050 problems that you would probably agree yeah that’s bad too
19:35
that’s bad too that then you’re left with a husk of I don’t know what you favor because you don’t know what your
19:40
ideal system is so I don’t really know all I know is you you agree with me on every problem I’ve mentioned with the
19:47
existing system like the arbitrariness of the terms well then let me give you a hypothetical of what I would agree to
19:52
and then you can you can criticize it right okay so I’m far more comfortable of doing this with a book than I am with
19:59
an invention because only because I’ve written books I’ve never invented a thing so so okay so I I wrote my book I
20:07
I got my book here view from a cage it took me I don’t know a year and a half to write then I got out of prison I had
20:13
to go to the publishing two years whatever so now I I get it copyrighted and I agree with a a
20:20
publisher to the terms of sale that he’s going to get x amount I’m going to get x amount of the royalties that come in
20:28
right so now we we sell the book I think that I have a legitimate claim to the
20:34
royalties that come back for the book I think that I had a legitimate right to contract with that guy and I think I
20:40
have a legitimate right uh to preclude other people on condition of buying my
20:46
book to reproduce it and sell it for commercial Pur stop so I agree with you on and I would hold that at least for my
20:53
lifetime okay I agree with you on everything except for your last statement um because that one it and it
20:58
depends on how you mean it um so yeah given the system that we have and given the existence of copyright you certainly
21:05
have a right to publish a book and you have the right to make a deal with an author I mean with a publisher and to get a royalty agreement um now in
21:13
without a copyright system in place that would all be different and you might not have as easy a time of of of making such
21:21
contracts um there would be more widespread piracy uh you might have less bargaining
21:26
power or more bargaining power with a publisher I don’t know but let’s given the existing system yeah none of that’s a rights violation the question is do
21:33
you have the right to stop third parties now if you simply mean that people that have some kind of
21:41
contract or even quasi contract with you um uh uh or violating a contract with
21:48
you if they copy your book without your permission I might weakly agree with you
21:53
but that’s not what copyright law is copyright law gives you the right to
21:58
prevent people from copying your book even if they don’t have any kind of agreement with you that’s ultimately and
22:04
so let’s get to the my the essence of my disagreement and this by the way everything I’m about to say is built upon everything you and I kind of
22:10
covered the reason I said property rights are a right to exclude the reason rothbart is right that they’re um um
22:18
they’re they’re all rights are property rights and and the core property
22:24
acquisition rules the core one of which is original appropriation right uh if we
22:29
agree on all that then I and I think you agree on those rules then you’ll see um
22:35
except except you don’t agree with property rights being only um property uh All rights being property rights I
22:41
think but you’ll see what the problem is um ultimately the problem is that
22:48
property rights uh IP rights copyright imp patent are non-consensual negative
22:55
easements okay now this sounds like legal wumbo jumbo but this is the best way to classify what’s wrong with it um
23:01
I mean you could say copyrights violate freedom of of of the press okay something like that but what it really
23:08
does is it violates property rights in existing resources that are that are
23:13
determined in accordance with original appropriation that’s that’s the problem so let me give you an example if if if
23:20
you and I live in a neighborhood well let’s say you and I are just neighbors and and you know you could have a farm
23:30
on your property you could have pigs on your property uh but let’s say you and I
23:36
don’t want each other to have a pig farm next to each other because um it would
23:41
be uh unpleasant right so we we make an agreement with each other not to um have
23:48
a commercial Pig form on our property okay that’s perfectly a legitimate type of agreement it’s called it’s called a
23:55
um a negative servitude or a negative easement um it’s negative because it it
24:01
it’s not a it doesn’t like a positive easement would be a right of way like let’s say I have a long driveway on my
24:08
property and instead of you building one right next to it on your property you just pay me a fee to use my driveway
24:14
right that’d be a right of way it’s a limited RightWay you don’t have the right to go in my home or to tear up the
24:19
driveway but you have the right to use it either you pay me money or you have a deal or something like that right that’s a positive easement a negative easement
24:26
is simply the right to prevent someone from using their Resource as they want this is this is what is commonly done in
24:33
homeowners associations where there’s restrictive covenants you know have 100 neighbors and they all have a master
24:38
agreement they signed or the the developer put in place when he built it where everyone owns their resource but
24:46
they they have a couple of limitations on their property number one they have to pay like an annual homeowners
24:51
association fee right and if they don’t there could be a lean on their property so they’ve agreed to give a little bit of their property to this thing for for
24:58
for trash collection and for for security guards or whatever but they also agree not to to like to keep their
25:04
home as a residential type of home not like a factory with pigs on it or maybe not to build over two two stories things
25:12
like that all those things are restrictions on the use of your resource but you granted it by by contract
25:19
effectively to all the other neighboring land owners and unless you get their permission you can’t do it and they can
25:25
stop you they can block you that’s a that would be a negative easement you follow me I do now what’s what’s
25:32
legitimate about that is it’s just just it’s just a form of contract it’s a way of me taking my resource and giving some
25:38
control to someone else by contract and then we can file it with real property records it can run with the land so it’s
25:43
actually a real right not a contract right but that’s just a detail um this is similar to a girl agreeing to
25:52
let her boyfriend kiss her at the end of the date she has the right to remove her
25:57
prohibition on that because she has a right to exclude she can say yes you have permission to kiss me if her boyfriend kisses her it’s not a battery
26:06
it’s not a salt and battery because she consented but if he kisses her without her permission it’s
26:12
salt and battery or battery right because the difference is the consent of the own the owner of the
26:19
resource likewise um a negative easement is perfectly legitimate if it’s
26:24
consented to by the owner of the resource the house that’s burdened but if you don’t consent to it it’s not
26:31
legitimate and this is effectively what a patent and a copyright is it’s a it’s
26:36
a negative easement that the state grants to some creator of a of an
26:42
artistic work or an invention right because they’re a Creator and the state wants to promote that or value that or
26:48
thinks that they’ve done something worth worth protecting whatever that’s the rationale but what what the grant is is
26:55
it’s a negative easement and it gives the holder of the easement which is say the the the copyright holder it gives
27:03
them um a veto over people’s use of their resources like I can go to court
27:10
you could go to court as the copyright holder for your book and you could prevent McMillan who has a big Factory
27:16
with printing presses they own their Factory they own their printing presses they own their
27:22
ink they own their trucks that they just you know you can get a court order in injunction again that that factory or
27:29
that uh that publishing house and prevent them from printing your book I’m
27:36
sorry not your book They’re preventing copies of your book on their own resources and that is a violation of
27:43
their property rights because I think you and I would agree
27:48
that the the default understanding would be that McMillan owns their Factory
27:54
they’re the owner because they acquired it by contract or they Homestead it right that’s how we determine who the owner is the only way you can be
28:01
restricted in using your resource is if that action violates the property rights of someone else so for example if
28:09
someone owns a factory and they’re using it to shoot Rockets towards your field
28:14
that can be stopped because it’s an action that violates their property rights but it violates their property rights because it’s a it’s a way of
28:20
physically interfering with their properties uh Integrity right which is
28:26
again why I keep talking about physical integrity being the fundamental property right um so my action can be prohibited
28:32
but it’s not because it’s a limitation on my property rights it’s a it’s because your property rights limit what
28:38
actions I can perform right or if I have a contract with you like a negative easement or some kind of other contract
28:45
if I’ve agreed not to publish this book then you could theoretically go
28:53
have a have a have a claim against me in in the legal system you say listen this guy agreed not to his book but he’s
28:58
doing it so you can stop me from doing it that way right I’ve effectively
29:04
consented to that rule but if I haven’t consented to it if I haven’t signed any agreement and I’m not committing any
29:10
type of trespass then my publishing a copy of your book does not interfere
29:15
with the physical Integrity of your rights it doesn’t trespass against your property rights it doesn’t violate your
29:21
property rights it doesn’t invade your property and that’s why the grant of the negative easement is unjust
29:28
because it it basically amounts to a taking of my property rights it basically grants to you a negative
29:35
easement that I did not consent to so that’s a that’s that’s in the nutshell
29:41
the problem with patented copyright grants is that they amount to uh they undermine existing property rights
29:51
um uh without there being a u a consensual agreement okay
29:58
so I believe that let me just say that if I accepted your view of self-
30:05
ownership and physical Integrity I can definitely see how you arrived that your
30:10
your conclusion right which is why I think it was very important for us to however tedious it might be for some
30:16
some viewers it was important for us early on to distinguish these things
30:22
because what you’re saying here is that given that I the idea is an abstraction
30:29
basically it doesn’t it’s not a physical uh thing you’re saying I can’t have a right to it therefore there can be no
30:35
trespass against it so when they print my book they’re just using their physical
30:42
resources they’re not trespassing on any right of Mind from my view that property is a
30:49
result whether it be Homestead or anything else it’s a result of both physical and mental yep uh effort
30:59
then I say that this intellectual property the uh yeah you know the the
31:05
book which is both physical and mental it just leans more toward the the mental as opposed to the the homesteaded land
31:12
trees Etc so from that point of view I would say they are trespassing against
31:18
me and are violating my rights so that so I think that the the key uh uh debate
31:24
here has to do with far antecedent factors right and I’m I’m very glad that
31:31
we we have had the discussion because it’s given me first of all some things to research some things to think about
31:37
and hopefully the viewers as well because the the difference is very fundamental it’s not just consella is
31:44
against property rights intellectual property rights it’s canella has a
31:50
similar but different in important ways view of Rights than what I have yeah and I think
31:57
think that so I think you’re you’re right and smart to okay so this is I mean most people aren’t CLE they
32:04
disagree on this they’re not clear thinking and they’re not really honest um they switch back and forth between a
32:12
contract argument like you’ll you’ll sure you’ll hear someone saying well
32:17
canella um um well the reason why I can stop you from printing the book is
32:23
because uh when you sell the book you’re committing fraud because you’re pretending to be me okay but that’s a
32:28
weak argument that’s not that’s not really right or you or you say well when people buy the book they effectively
32:34
agree to a contract because inside the front cover there’s a little notice saying copyright and so you’re buying
32:40
the book subject to that contract so they try to build the argument on contract which and there’s so many
32:46
problems with that I could I could spell them out too and I have but you’re going to a more fundamental thing but I I
32:51
think that I think it’s good I think you’re you’re acknowledging that I think you acknowledge my point or you you
32:57
would acknowledge that at least the the presumption ought to be if you and I both agree that people can come to own
33:04
res well let me ask you do you you agree with me basically that people can come to own unowned scarce Resources by
33:12
original appropriation I think you agree with that correct I I do and I think that that original appropriation entails
33:20
both physical occupation yes and an intellectual intent to appropriate it I
33:28
agree and I I agree and I specifically say that in my book that um that’s the again the distinction between possession
33:34
and and and and ownership and abandonment and possession because uh
33:40
ownership requires the union of the intent to own as owner not merely to possess uh that’s why you can abandon
33:47
something when you cease to intend to own it you still possess it temporarily but I might possess it until I hand it off to someone else but I AB that’s why
33:54
and that by the way I think is why your argument against the the contract view is strong because if I buy a book and I
34:01
contract with you even if it’s implied that I’m not going to sell it but then I no longer want it so I abandon it then
34:07
some other guy comes and picks it up well he hasn’t agreed to anything well now you could know even if you stretch
34:13
and you say okay well the third party buying the book buys it subject or
34:18
homesteads it subject to this disclaimer this is rothbard’s argument in ethics of
34:23
Liberty which is also confused and wrong even if you argue that in the digital age this is all gone because now there’s
34:30
not even a physical book for you to for you to I mean there’s just texts up on the internet right and the person
34:36
putting the pirate copy online is going to strip out the copyright notice anyway so the person anyway there’s no there’s no
34:43
privity of contract we would say between the third party anyway and certainly not in the digital context so you’re right
34:48
but um would you agree with me also that if someone is using their resource that
34:54
they own you we both agree they own it um like a gun or a factory if they’re
35:01
using their resource um and there is no contract with someone
35:07
else and there’s no negative easement granted explicitly that the only way
35:13
that the holder of this IP right can stop me is that they prove um they prove that uh somehow I’m
35:22
I’m violating their property rights by my actions with my property would you agree with that
35:29
uh tentatively I I would say yes my only problem with it is I haven’t had a lot
35:35
of time to think about it yeah and and the use of the word easement although I studied it in real estate law you know
35:42
22 years ago I’m not real yeah let’s forget about that up to date on it but I
35:47
will say this unless there’s a property right violation that person can do whatever he wants I’ll say that who the
35:53
burden of proof is on and what that I’m not really certain okay so so but the point is um unless there is a unless
36:02
there is a property rights violation then then my actions are not invading
36:07
your property rights so so that’s the root of our disagreement and so the the thing I think that you you’re stuck that
36:14
you’re going to you’re going to you’re going to fail on here is that you concede that people have property rights
36:20
in these material resources acquired by homesteading and I think that’s just
36:25
incompatible with someone else having the right to an intangible thing that is
36:32
a property right and something that has intangible aspect and and and its nature
36:38
is bound up in this notion of of value or being valued that’s to me the
36:43
ultimate problem and I I at least think a case can be made that the burden of
36:48
proof is on you to demonstrate how my printing a book in my factory violates
36:55
your property rights sure and your answer seems to be not based in contract
37:01
which I respect but it’s based upon the fact that we can have property and things that we create that have value
37:07
because creation is a source of rights and the problem with that is I think that’s just question begging you’re just restating that creation let me just say
37:14
even that creation that I’m talking about really just has to do with what you’re talking about is
37:21
rearranging existing resources that I own the because I’m if I mean if if
37:28
we’re going to talk self- ownership then I necessarily and I’m real I don’t really like like to use self ownership
37:35
too much because but whatever it doesn’t matter if I if I accept it then I must own my thought processes I must own my
37:42
brain I I have to own what I do with it and in that case I’ve just rearranged
37:47
those things to create the book wait a second you lost me if you accept what self ownership if I accept self-
37:53
ownership right if self owner if I accept self- ownership and and we’re going by the rearranging theory if
38:00
rearranging isn’t actually an Act of Creation I’ve still just rearranged things that I I already know rearrange
38:07
them in such a way as to produce a book and I don’t know how that’s not legitimate property well well so so so
38:13
first of all um I I don’t like the term self- ownership either because it can lead to Mystical like the Mind Body
38:20
dichotomy the soul personality that’s why I talk about when I’m trying to be precise I say body ownership
38:28
which is again just a way of saying aggression or aggression is unjust
38:33
because people own their body so every every person is the owner of his body that’s what self ownership to me means
38:38
but it specifically does not mean that we own our labor or our
38:44
actions if you own your body you have the right to use it as you see fit but it doesn’t mean you own that using it’s
38:51
like you know if I if I go jogging do I own my jogging the these are metaphors that
38:57
just confused thought we you own the physical Integrity of a of a corporeal actual body and that is sufficient to
39:04
give you the right to use it as you see fit what Stephan what I would like to do at some point in the future and I know
39:10
you’re very busy and it doesn’t have to be even within the next month or so but sometime down the line I would really
39:15
like to have you on to just have a discussion slash debate about rights
39:21
where we’re not tying it to intellectual property or just rights I think that would be a very uh help discussion that
39:28
would help illuminate this discussion very much so all right well I think I I
39:34
think that we’ve identified the the nub of our disagreement is that is that you think that there’s an and this is why I
39:39
brought up the positive rights thing earlier the Liberals believe that you can have negative rights but also positive rights you can’t have them both
39:46
I think you think that we can have rights and material resources and also rights in intangible resources but I
39:54
think they they they butt against each other it’s impossible to have have both um um and that’s where we disagree but
40:00
uh maybe maybe we can decide how to purs go from here in a next another interview
40:06
yeah sure absolutely and again I you’re one of my favorite interlocutors you’re
40:12
you’re intellectually honest and you’re very respectful it’s an honor to to have
40:18
these disagreements with you it helps sharpen my own thinking gives me things to consider and I really appreciate
40:24
it well I’m glad to do it so Stephan where can people find you uh Stephan cancel.com and a lot of
40:32
the stuff we talked about as I mentioned last time today is in my book uh legal
40:38
foundations of a free society which is free online and because you’re
40:44
consistent and it’s also not even copyrighted I mean you can even publish it under your name if you want to I
40:49
couldn’t stop you um U but um and and the extensive dis discussion of the
40:55
nature of property rights in there to that we might get to some point in the future so awesome awesome okay thank you
41:02
so much for now this is the rational eag with signing out till next time
