KOL470 | Intellectual Property & Rights: Ayn Rand Fan Club 92 with Scott Schiff

by Stephan Kinsella on August 18, 2025

Podcast (kinsella-on-liberty): Play in new window | Download (67.7MB)

Kinsella on Liberty Podcast: Episode 470.

From my appearance on the Ayn Rand Fan Club with Scott Schiff and William. Their Shownotes:

Patent attorney, Libertarian & Ayn Rand fan Stephan Kinsella joins William & Scott to talk about his history in the liberty world and his unique view that property rights should only pertain to physical things, and not to intellectual property. They also talk about Elon Musk opening his patents and the effects of IP law on AI.

Grok shownotes:

Episode Overview

In this episode of the Ayn Rand Fan Club, hosts Scott Schiff and William Swig engage in a thought-provoking discussion with Stephan Kinsella, a retired patent attorney, author, and libertarian thinker with a deep background in Ayn Rand’s Objectivism. The conversation delves into Kinsella’s journey from Objectivism to anarcho-capitalism, his critical stance on intellectual property (IP), and his broader views on libertarian principles. Recorded on August 18, 2025, the episode explores the philosophical and practical implications of IP laws, their impact on innovation, and their compatibility with property rights, while also touching on contemporary libertarian movements.

Stephan Kinsella’s Background and Philosophical Evolution

Kinsella shares his personal journey, starting with his introduction to Ayn Rand’s The Fountainhead in high school, which sparked his interest in Objectivism. Initially a “hardcore Objectivist” for eight years, he later gravitated toward Austrian economics and anarcho-capitalism, influenced by thinkers like Ludwig von Mises and Murray Rothbard. As a patent attorney in Houston, Texas, Kinsella began questioning the validity of IP laws in the early 1990s, finding existing justifications—whether utilitarian or Objectivist—unsatisfactory. His career as a patent lawyer, paradoxically, coincided with his growing opposition to the patent and copyright system, which he argues violates fundamental property rights.

Critique of Intellectual Property

Kinsella’s primary critique of IP centers on its violation of tangible property rights. He argues that patents and copyrights impose non-consensual restrictions, or “negative servitudes,” on how individuals can use their own property, such as a printing press or factory. Drawing from libertarian principles, he contends that property rights should stem from homesteading or contract, not state-granted monopolies. Kinsella rejects both utilitarian arguments (e.g., IP promotes innovation) and natural rights arguments (e.g., creators inherently own their ideas), asserting that there’s no empirical evidence for underproduction of creative works without IP and that the concept of owning labor or ideas is flawed, rooted in a misinterpretation of John Locke’s labor theory.

Trademark, Defamation, and Reputation Rights

The discussion extends to trademark and defamation laws, which Kinsella also opposes. He explains that trademark law, originally intended to prevent consumer fraud, has evolved into a “reputation right” that protects brands like Rolex or Chanel from dilution, even absent deception. He argues that fraud laws already suffice to address deceptive practices, rendering trademark law unnecessary. Similarly, Kinsella rejects defamation laws, asserting there’s no property right in one’s reputation, as it’s merely others’ opinions. He distinguishes incitement to violence as a separate issue, potentially actionable if it directly causes aggression, but maintains that reputation itself isn’t ownable.

Impact of IP on Technology and Culture

Kinsella highlights the detrimental effects of IP laws on technological and cultural progress, particularly in the digital age. He notes that patents and copyrights slow the diffusion of knowledge, stifling innovation in fields like AI, where restrictive licensing limits training data and outputs. He cites examples like Elon Musk and Twitter (now X) opening their patents to foster competition and market growth, arguing that IP creates unseen costs by suppressing projects like documentaries or software due to licensing hurdles. Kinsella emphasizes that competition, not monopoly protections, drives progress, challenging the notion that IP is necessary for profitability.

Libertarian Principles and the Mises Caucus

The conversation shifts to broader libertarian themes, including Kinsella’s involvement with the Mises Caucus, which took over the Libertarian Party to promote principled libertarian candidates. He discusses his work on clarifying property rights and non-aggression principles for the caucus, as well as his recent Universal Principles of Liberty document, which systematizes libertarian legal theory. Kinsella also addresses the controversy surrounding Javier Milei’s influence on the liberty movement, noting divisions among libertarians, with some seeing Milei as a beacon of hope and others, like Hans-Hermann Hoppe, criticizing his policies.

Rights, Forfeiture, and Contextual Ethics

In the final segment, Kinsella tackles the concept of rights forfeiture in the context of criminal acts, framing it as a semantic issue. He aligns with Ayn Rand’s non-aggression principle, distinguishing between unjustified initiation of force and justified defensive or responsive force. Rights, he argues, are contextual, as William suggests, and their recognition may shift based on actions like murder, though Kinsella prefers to avoid the term “forfeiture,” focusing instead on the justification of force in response to aggression. The episode concludes with reflections on Rand’s ethics, particularly the premoral choice to live, and the gradual cultural shift toward liberty through practical experience and technological advancement.

Youtube transcript (cleaned up by Grok):

Scott (0:00):

Welcome to the Ayn Rand Fan Club. I’m Scott Schiff, along with William Swig. William, how are you today?

William (0:07):

I’m doing well. How are you?

Scott:

Good. Good. Well, I’m very pleased we have a well-known libertarian, retired patent attorney, author, and longtime Ayn Rand fan, Stephan Kinsella. Stephan, thank you for joining us today.

Stephan (0:20):

Glad to be here. Very glad.

Scott:

And before we get into all the IP stuff that I know is going to come up, can you just give us a little bit about your background story, even how you got into Ayn Rand and libertarianism?

Stephan (0:36):

Yeah, sure. I am a mostly retired patent attorney here in Houston, Texas. I’m from Louisiana, and I’m 59 years old. So, I was raised in the ’70s and ’80s in Louisiana, and I was always philosophical. I was into technology and all that, and science fiction. But in high school, I was at a Catholic high school in Baton Rouge, and a librarian who knew I liked literature, reading, and philosophy recommended that I read The Fountainhead. That was in 10th grade. So, I read The Fountainhead and got hooked, got really interested in Objectivism and philosophy. I would say I was a hardcore Objectivist for about eight years. I still consider myself to be an Objectivist if you go by the four main tenets. They probably wouldn’t have me, but I do subscribe to her four main tenets in general terms: egoism, reality, capitalism, individualism, that kind of stuff. I agree with all of it. Still do. Self-interest. But that led me to Mises, Rothbard, the Austrians, and the anarchists, and so I became way more interested in Austrian economics and anarchist theory around law school and college time. When I started practicing law in 1992, I started in oil and gas law at first in Houston, but then I switched to patent law soon after that for career reasons. And when I did that around ’93 or ’94, I started thinking and writing on libertarian topics like rights and stuff like that. So, I thought maybe I’ll turn my attention to the intellectual property issue because everyone else’s treatment of it was dissatisfying to me—like Galambos, Spooner, Rand, and the utilitarians. There was something wrong with all of their approaches. So, I thought, because I’m a patent attorney and a budding libertarian writer, I can figure it out. I was trying to justify intellectual property for a couple of years, reading everything I could, and finally, I realized why I kept failing: I was trying to justify the unjustifiable, to use, to mangle a Walter Block type of title. The reason I was failing and dissatisfied with all the arguments was that it was unjustified. So, I came to that conclusion right around the time I started practicing patent law. So, for my whole career, I was increasingly opposed to the patent and copyright system while I was doing it for a living.

Scott (3:28):

Did that affect that? Did judges know your view? Did you practice?

Stephan:

Well, at first, I tried to downplay my opinions. I would write as a hobby in libertarian journals and editorials and things like that. For my job, my career, I would write legal articles and things like that, and they were sort of separate. But I was a little bit worried that the word would get out that I was an anti-IP patent attorney, and it would hurt me with my partners and my clients. But of course, no one reads anything, and no one cares about it. It’d be like worrying that they would be worried about my religion or my sexual preference or something. No one cares, and they don’t read anything. And not only that, I found that when I started becoming more vocal when I realized it wasn’t hurting me, I would speak up among lawyer groups, and they would just listen, but they weren’t interested. But it started getting me clients. I would go to the Mises Institute and give a speech on why the patent system should be abolished, and someone would walk up to me and say, “Hey, I’ve got this idea for an invention. Can you help me with it?” They didn’t care that I wanted to abolish the system. From their point of view, I was a smart patent lawyer who knew the law so well that I knew it should be abolished, but I must know it well enough to lecture on it, so I must be competent at my job. So, let’s hire Kinsella. So, it strangely never hurt me.

Scott (4:56):

Were there any other attorneys who felt the way you felt?

Stephan:

I’ve identified a few. One of my good friends, who I was a lawyer with, is sort of a default libertarian and a cynic about the whole thing. He thinks it’s BS, but he doesn’t write on it or anything. I’ve had a couple of people write anonymous letters to me, asking me to post them anonymously because they were afraid it would hurt their careers. There was one law professor who died, but he was anti-IP, though he was a socialist, so I didn’t like to count him on my side. But yeah, there were a couple that were anti-IP. But everyone who’s pro-IP, it’s like when you talk to a post office worker or a teacher at a public school, they’re in favor of the post office and the public schools, but they don’t really have a good argument. They’re just in favor of it because it pays their check. Most lawyers and patent lawyers don’t think about it. They might repeat the talking points, like it’s good for innovation, but that’s not why they do it. They do it for a paycheck. But yeah, I’ve come across a few that agree. In fact, my old boss, my first patent lawyer boss, Bill Norrell, I reconnected with him about six months ago after many years, and he’s retired. He agreed to come on, and I interviewed him, and he told me he agrees with me that the patent system should be abolished. I’m like, really? He goes, yeah, I read your stuff. You think you’re right. I was a little surprised. So, yeah, I’ve seen that from time to time.

Scott (6:26):

And just for our audience that may not be aware, can you give us a quick synopsis? I think I understand where you’re coming from, but just briefly.

Stephan:

Sure. We can talk, if you want, about the problems I’ve seen with it and where I think the error lies, like why people get this issue wrong. It’s hard to disentangle because it’s confusing. And then the second question, why I think Objectivists get it wrong. That’s a harder one to figure out. I’ve been trying to find a way to articulate what the exact error is that Objectivists make on this issue. But broadly, in the public, I think most people have just accepted patents and copyright. The Objectivists try to have a more intellectual argument based upon their theory of rights, and I think that’s flawed in certain ways. The standard argument—there are two main arguments for intellectual property. One is just that it’s in the Constitution. So, if the Constitution says we should have patent and copyright law, then we should have it because it’s in the Constitution. That’s sort of an argument from authority or tradition, or just that we’ve always had it. That’s not really a good argument. I do think that’s why Ayn Rand was in favor of it, by the way. She was such a fan of the Constitution and the American system, and she hated the Russian system, that she assumed the U.S. system was so good that she had to find a way to justify the patent system that was in the Constitution. Plus, she was a writer, so it kind of went along with her career.

William (8:04):

Jump in real quick there because—yeah, sure. So, I reread “Patents and Copyrights” by Ayn Rand, and I think she had a little bit more sophisticated argument than that because she thought that—and I’m quoting here—“the government does not grant a patent or copyright in the sense of a gift, privilege, or favor. The government merely secures it.” So, I think her idea was that you have this right based on your actions or your nature or whatever you’ve been doing. It’s not a privilege, but it’s—

Stephan:

I totally agree. That’s definitely her view. I don’t want to be unkind and say it was her rationalization, but that was not in the Constitution, right? That was her attempt to show why that law is just, even though the rationale in the Constitution is explicitly consequentialist or utilitarian. It says to promote the progress of the arts, Congress can grant these limited monopolies, basically, for a limited time. So, that was an explicitly consequentialist or utilitarian goal. Now, one of her followers, Adam Mossoff, a law professor, has tried to put her arguments on a little bit sounder footing. He’s also argued, like Rand did, that the common conception of patents and copyrights as being utilitarian is wrong, that it was a natural right. But I think he’s just wrong as a matter of history. His view is that Jefferson and the Founding Fathers, and even John Locke, didn’t view it as a monopoly granted by the government or a privilege. They viewed it as a natural right, although there’s confusion by them because they weren’t perfect Objectivists or whatever. But he thinks that their view was that it was a natural right. Now, that’s just a historical dispute. I think they’re wrong. There’s a guy named Ronan Deazley who’s written on this. John Locke did support copyright, but only to stimulate the arts and stuff like that. I don’t think John Locke himself thought there was a natural right to intellectual creations, although that’s debatable. But anyway, that’s ultimately an argument from authority anyway. Basically, the argument is that you would have an underproduction of innovative works and creative works, like artistic works that are covered by copyright and inventions covered by patents, if you didn’t have the government grant these limited rights of patent and copyright. You would have an underproduction of works because people would find it too difficult to recoup their cost of development because when they face competition from people copying their inventions or their works, they wouldn’t be able to make a profit as easily and wouldn’t be able to recoup their effort. So, you need to grant them these temporary monopolies to make sure they can sell their products at a higher price for a temporary time, make enough profit to justify them doing it in the first place. That’s the utilitarian or consequentialist argument, which is implied by the constitutional clause. But the second way of looking at it is that it’s a natural right. The idea is that you have a natural right to things that you create. And so, the government just secures those rights, which is how Rand tried to put it and how Adam Mossoff tries to put it. That’s the standard view. And the view I came to is that both of those arguments are confused and wrong because utilitarianism is not the way you justify laws, and number two, there’s no evidence to support their case. On the natural rights side, there’s a confusion about the nature and origin of rights. Basically, the mistake came because of a flaw made by John Locke in his original argument, which he had to introduce because of the way he had to argue against the theistic arguments at the time. He introduced this idea of labor ownership, which I think is the mistake that crept into later political philosophy and corrupted the way we think about the origin of rights. It led to what I call Lockean creationism, the idea that creation is the source of rights. I think it also led to Adam Smith, Ricardo, and then Karl Marx’s labor theory of value, this whole misconception about value and whether it’s an ownable thing and what role it plays in the acquisition of rights and in the production of wealth. But we can get into that if you want. Ultimately, the problem I have with patent and copyright is that they violate property rights that are already granted in material things based upon homesteading and contract. So, if you have ownership of an object, like a printing press or a factory, because you built it yourself or because you acquired it by contract, that property right should allow you to do whatever you want with that resource unless you’re committing an act of aggression. That was inherent in Rand’s view of what aggression was, right? That only the initiation of force can be prohibited by law. Unless you’re initiating force, no law is just that stops that force. My argument is that once you have a domain of property secured by contract and by original appropriation, that determines who owns that resource. So, I can use my factory to make a copy of an iPhone and sell it or a copy of a book and sell it because I’m just making something with my own property, and I’m not committing an act of aggression. I’m not initiating force against anyone else. Ultimately, those laws grant the right to the holder of the patent or copyright to stop me from using my property as I see fit. It lets them limit how I can use my property even though I didn’t commit an act of aggression. It’s what I call a negative easement or a negative servitude that the state grants to someone that I didn’t consent to. It’s a burden on my property that I didn’t consent to, unlike a voluntary negative easement, like a homeowners’ association restrictive covenant, where you agree to not build a house over a certain height or whatever. Those are contractual, and they’re fine because the owner consented to it. But in the case of patent and copyright, the owner doesn’t consent to a burden on his factory or his printing press. The government grants it to someone else by fiat. So, it’s a non-consensual, involuntary negative servitude. That’s ultimately the problem with patent and copyright: they are takings of existing property rights.

William (15:19):

My wife summarized your view as, you know, you can’t tell me what to do with my printing press.

Stephan:

Correct. But within that, can I open a hamburger place called McDonald’s and put golden arches outside and piggyback off their reputation?

Scott:

Well, we could talk about that. It’s important to get these things distinct. In the beginning, there was no such thing as the concept of intellectual property. There were patent and copyright, which were created by statute. They were not common law rights. There were also other things now called IP rights, like trademark and trade secret, which evolved in the common law. Let’s forget about trade secret for a second. You don’t really need the government to give you a right to have a trade secret. You just have to keep it secret. So, if you own your head and you’re not compelled to speak, you can keep information secret, really. But trademark started with the idea that if you use a brand or a mark to identify the source of a good, others can’t use a mark too similar because that would confuse consumers, which is kind of close to fraud. The original justification for giving a trademark right to someone to enable them to stop someone else from using a similar name was based on the idea that other people shouldn’t be defrauding consumers. Okay. So, that’s rooted in the idea of fraud, which you could justify slightly unless you understand the details of how trademark works, and you realize that if that’s really the basis of trademark, then you don’t need trademark law. You already have fraud law and contract law. But let’s set that aside. The point is, the Constitution in the U.S. doesn’t give Congress the power to regulate trademark. It only gives them the power to regulate inventions and artistic works, which is copyright and patent, which is why the original two IP laws were patent and copyright in 1790. It wasn’t until the 1950s when state law governed trademark law, defamation law, fraud law, contract law, and trade secret law. Then the federal government passed the Lanham Act in the ’50s, or maybe it was even later, I can’t remember. They federalized part of trademark law under the interstate commerce clause, which I think is clearly unconstitutional. But anyway, my answer is, I do think that people should be able to make a golden arches and compete with McDonald’s for two reasons. Number one, it’s not a right of McDonald’s that’s being violated. It’s the right of consumers who are being allegedly defrauded. If you make a fake McDonald’s chain and you defraud consumers, then I think they should have a contract or a fraud claim against that fake McDonald’s, and they would sue them into oblivion, and they would just go out of business. It wouldn’t be a real problem. But the point is, the right shouldn’t be to McDonald’s. It should be to the deceived consumer. The second thing is, trademark law now does not require you to show fraud. It only requires you to show the likelihood of consumer confusion, and it doesn’t even require that if there’s a famous mark. It only has to show there’s a dilution of that mark. So, trademark law has really turned into a reputation right, like defamation law. For example, if someone sells knockoff Rolex watches or knockoff Chanel purses and they sell them for $20 out of a van on the sidewalks in New York City, then Rolex or Chanel can get a court order and seize those products and have them destroyed. But on what grounds? The people buying it are not being deceived. There is no fraud. There’s no consumer confusion whatsoever. No one buying a $20 Rolex watch thinks it’s real. So, the only harm done is to the reputation right of Rolex or Chanel. But that is not a trademark right. That’s a reputation right, which is a whole other issue. I think the Objectivists are also wrong to believe in reputation rights. David Kelley supports reputation rights. I think that’s wrong.

William:

You’re using reputation rights for part of this argument for why you would be able to sue them?

Stephan:

No, I think you could sue them for fraud. Fraud is a different thing. I think fraud law is justified. Fraud means when you deceive someone and basically take their money by trick, right, or deceptively. So, basically, it’s like a case of lack of informed consent. I’ve written a whole chapter in my book on libertarian legal theory. This is my book. It came out two years ago. This has all my arguments in it. Legal Foundations. You said it’s not copyrighted. Well, it’s copyrighted because all copyright is automatic, but I have a Creative Commons Zero license on there. So, I’ve made it public domain as much as the law will allow me to make it. Yeah, I’ve had three or four smartasses say things like, “This is you, there’s so many bad arguments for IP.” They’ll say, “Oh, well, Kinsella.” First, I get the hypocrisy argument. “Oh, you’re a practicing patent lawyer, so you’re a hypocrite.” I’m like, well, so basically, the only people you want to complain about IP law are people who don’t know anything about it? Because if someone knows something about it, like me, we’re supposed to not complain about it. Anyway, whether I’m a hypocrite or not is irrelevant to whether IP law is justified. They do this kind of dishonest argument. But I’ll have people say something like, “Oh, well, Stephan Kinsella, I guess they don’t know that my works are open source, so they’ll say something like, ‘Well, I guess Kinsella wouldn’t mind if I slap my name on his book and make a million dollars.’” It’s like, do you idiots know how hard it is to make money selling? Do you really think if it was so easy to make a million dollars selling a 75-page book on IP law that I wouldn’t have tried to do that already? Go ahead. Show me how to do this, you know? So, what I’ve done is, they’ll say, “What if I slap my name on your book?” Okay, so I’ll take my article, put their name on it, put it on my website. They’ll say, “Here it is. John Doe is against IP.” Congratulations. Now you’ve just published a book arguing against patents with your name on it. Is that what you really want to do? I mean, it makes no sense. These guys are just smartasses.

William (22:13):

I’d like to ask you a question about the effect of the division of labor on the need for patents and copyrights. When we were just hunter-gatherers, there was no need for patents or copyrights because there was no technology that’s going to make them money. People weren’t publishing books and things like that. But when civilization reaches the point where you need storytellers and inventors, and they need to be able to make money and survive in society off their labor, isn’t patents and copyrights a form of protecting the division of labor and the need for that?

Stephan:

Well, that’s complicated. First of all, the way I look at it in general is, I hate to bring up praxeology and Mises, but it’s a simple way of looking at what human action is. I don’t think this is incompatible with Objectivism. In every action in human life, human beings aim at a certain end. They’re trying to change the universe. They’re trying to change the future for the way they see things coming, right? They’re uneasy about what they think is coming, and they have a goal in mind and try to achieve it. That’s what all human action is. To do that, they have to have knowledge and scarce resources at their disposal. The knowledge is the ideas, and that’s crucially important. That’s an ingredient you have to have for successful action. You also have to have availability of means, and to have availability of means in a society of other people where there’s possible conflict, you want to have secure possession of those means so people don’t take it from you. So you can have long-term plans and things like that. Property rights emerge to socially protect those scarce means of action. But the knowledge is the second ingredient that informs what you do. I would say, even in the caveman days or the days you’re talking about, technological knowledge is equally important. You have to know how to catch a fish. You have to know how to do things. If we need IP now, I don’t see why we wouldn’t need it before. In fact, back in Sybaris, the Greek city-state, in the year 500 BC, about 2500 years ago, there were some crude early forms of copyright and patent. There was a cooking culinary competition, and everyone would try to cook their best dish. Whoever won, who got the king’s favor or whatever, would have a monopoly to be the only one who could make that dish for a year. So, you had this idea around for a long time. But there are two problems with the way you worded it. Number one, it presupposes that the purpose of rights and property rights is like we have to have this central planning mentality and look around for market failures and things that the law should incentivize or encourage, like we need to make sure we have enough division of labor or something like that. That’s just not the purpose of law, justice, and rights. The purpose of law is to protect people’s rights, to do justice, right? And to do that, we have to know what their rights are. Once their rights are established, then they can operate knowing what they are. It’s up to them to figure out how to make a profit in a world that secures those rights. The other assumption is that you need the government to grant you some kind of limited protection from competition to sell something or make a profit at it. I mean, you can sell a book without having the right to stop people from selling copies of the book. There’s nothing stopping you from selling your book.

William:

Yeah, I was just going to say, I mean, the take that incentives don’t matter versus the rights. Going back to Rand, it’s like the moral is the practical, and you can see that in all these areas that capitalism increases the rate of technological progress, standard of living. So, you’re telling us here in this one case that without adopting it, it may stifle creativity or the arts.

Stephan (26:55):

So, I would say this. I don’t think it does stifle creativity, and I don’t think it’s necessary, but I’m simply saying that our primary focus has to be on the principled approach and on rights. You don’t reverse-engineer the rights to get the incentives that you want. Normally, they go hand in hand. If you can say, “Well, the rights system that Kinsella proposes has this breakdown because there’s no good incentives,” that’s fine to point out and look at closely to see if there’s a disconnect because there shouldn’t be a disconnect. The practical and the moral should be the same thing. I think the assumption is wrong, and in fact, all the empirical studies show that every argument given that you need these rights to stimulate creativity and that without these rights you have an underproduction of these things—a so-called market failure—there’s just no evidence of that. The common-sense case, I understand, like, “Why would I spend a billion dollars to make a drug that someone could just make a knockoff of the next day?” I can understand that knee-jerk argument, but if you look into it more closely, the argument just fades away. In any case, the point is, you have to first identify what our rights are, and then you have to analyze how society’s going to work based on that. I’m not saying that I don’t care what happens or that the consequences are irrelevant or incentives don’t matter. I do think incentives matter, and I think they flow from a rational, objective system of law that protects property rights. I just think it’s enough to do that, and within that system, people can find ways to make a profit even though they face competition. Basically, I don’t have a problem with competition, which is ultimately what people who support patent and copyright have a problem with. I think people have this idea that up until around the 2000s, maybe when the internet started, technology started, piracy started, and encryption and digital information started, we were in the analog age. In the analog age, you had a natural ability to make a profit because it was difficult for people to compete with you because everything people made was a real service or a tangible product, a material product, which required a factory, employees, capital, and labor. When you invest in that and take a risk, you hope to make a profit, and you make an unnatural profit for a while. Because remember, profit is an unnatural thing because when you make a profit on the market, you send a price signal to the rest of the world saying, “This guy’s making a lot of money. He’s doing it by pleasing the consumers.” Over time, you attract competition, and it becomes harder to make that profit. But for a while, you have a head start, and your profit goes down to the rate of interest over time. But at first, you have this natural profit in the beginning because you’re the first one. Then, over time, that gets eroded, and you have to keep improving your product. That’s the natural way the world worked in the analog age when there was a friction or difficulty of people right away competing with you. They couldn’t—if I sold a Harry Potter book one day or a new phone or a new drug, people couldn’t make a duplicate of it the very next day because, even when books were analog, you had to have a printing press. You had to decide which books to copy if you wanted to pirate or bootleg books. You don’t want to copy every book that’s out there because you might be wasting your money. So, you might wait a year or two to see, “Oh, Harry Potter is the bestseller.” Now I’m going to start making bootleg copies. But in the digital age, you can do it right away, or I can make a drug right away, is the argument, which is not true. It’s not the way pharmaceutical companies work. But anyway, that’s the idea: it’s too easy to compete in the digital age. Because it’s too easy to compete, the natural analog world’s competition process breaks down. Now it’s too hard to make a profit. It’s too hard to make this unnatural profit. It goes down to zero much more quickly, and therefore, the whole incentive structure breaks down. So, we should put these patent and copyright laws in place to slow down the diffusion of ideas because these new ideas are a problem. I think it’s insane, but that’s kind of what they come out on. They’re literally afraid of competition because competition makes it—if competition comes too free and easy, which it does in the digital age with certain goods like digital goods—then no one’s going to invest in the first place. That’s kind of the argument.

Scott (32:28):

I’d like to try to get at something maybe more fundamental. I watched your intellectual property and history course on YouTube, and you were discussing different types of property: real property, personal property, and intellectual property. Why can’t the arguments for real property be applied to intellectual property as well? It seems like in both cases, you’re mixing some mental effort with physical things. So, I’m curious about your thought on that.

Stephan:

Right. I got sidetracked. You asked earlier about patent and copyright and fraud and all this. The reason I distinguish patent and copyright from trademark is—Scott, you had asked about someone making golden arches and all this—that’s a trademark example. What I was going to say is, originally, people viewed and called patent and copyright monopolies and monopoly privileges. Thomas Jefferson, when he was in Paris when the Constitution was being drafted or the Bill of Rights, I can’t remember, he wasn’t really part of that process, but he had some correspondence with Madison. I think it was the Bill of Rights being drafted, but it was after the Constitution had been drafted and ratified in 1789, and it had the patent and copyright clause granting Congress the power to enact protections for inventions and authors for a limited period of time. Jefferson suggested in the Bill of Rights putting one of the amendments that Congress can only grant these monopolies—and I think he used the word monopolies—for a blank period, like he wanted to put a cap in there. The point is, he called them monopolies, and he wanted to put a cap in there, just like when the income tax amendment was being debated in the early 1900s, one of the congressmen wanted to put a 10% cap in there, but the other congressmen said, “No, we can’t put a 10% cap in there because Congress will think that we can go to 10% right away.” They’ll think we’re giving them permission to go to 10%, which would be ridiculous. Of course, now we wish they had put a 10% cap in there. I wish they had put a 14-year cap in the original Constitution or Bill of Rights. Patent and copyright would have had to expire in 14 years, and they wouldn’t have been able to go for 150 years like copyright does now. But anyway, originally, these things were recognized to be privileges. In the 1800s, the free market economists started criticizing patent and copyright, which were becoming more noticeable after the U.S. enacted these laws based upon the original British system, which was based, by the way, on a law called the Statute of Monopolies and the Statute of Anne. That was the patent and copyright statutes. It was literally called the Statute of Monopolies. But the free market economists in the 1800s, from 1825 to 1850, started objecting to patent and copyright because they recognized they were monopolies and in restraint of free trade and international trade. So, there was a growing movement for these countries to start abolishing or not adopting or slowing down the adoption of their patent and copyright laws. But in response, by this time, you had these publishing industries and some inventive industries emerging, which were now getting dependent on patent and copyright. So, they started opposing it, and one of their arguments was, in response to the criticism that we should abolish these state-granted monopoly privileges, they said, “Well, it’s not a privilege; it’s a right. It’s a natural right.” Someone said, “Well, what kind of natural right is it that expires in 14 years?” Their response was, “Well, it’s a special type of property right. It’s an intellectual property right.” So, they came up with the term intellectual property as a propaganda move to try to say it’s just another type of property because everyone was in favor of property rights. That’s the argument that goes on now by Adam Mossoff and Richard Epstein and others. They say there’s a similarity or analogy between property in material things and intellectual property. One argument they make is the one you hinted at: they’re all the product of the human intellect and human effort, and they’re all things that you create. So, just like you can own a chair or a house that you create, why can’t you own an idea that you create, like a book, an invention, or a song? The problem with that argument is that you don’t—this is what I alluded to earlier—the mistake made by Locke is that people have seized on an aspect of his argument, which is the idea that the reason you homestead tangible resources is because you own your labor. That’s the assumption. So, there’s an assumption that you can own your labor. If you can own your labor, you can own things you mix with it. That leads people to believe that the essence of ownership of unowned things or created things is the ownership of your labor that you mix with it. The fallacy, in my view, is that you don’t own your labor. Labor is an action. It’s not a thing you can own. This is related to the problem I think Randians have with their rights theory. They use this word “values” in an idiosyncratic way. Most people say value is a verb. It’s something you value by acting to gain and/or keep it, which is what Rand used in another context. She said a value is something you act to gain and/or keep. But she viewed it as a noun, as an object, as a thing that you create. But in other writings, she recognized that we don’t really create things ex nihilo, from nothing. We just rearrange matter, which is also what Rothbard and Mises say. The act of creation or production is really rearranging matter into a more useful configuration. That is a useful thing. It requires knowledge, insight, ingenuity, effort, and person. You can apply that to pen marks on a page or art, increasing the value of those physical products.

William:

Correct. That’s like Daniel Schulman, who was a libertarian anarchist but Rand-influenced writer. It’s funny how all these novelists in favor of copyright, like Rand and Neil Schulman and L. Neil Smith, even though they’re anarchists, happen to favor copyright. It boils down to originality, right? If you’re creating a fictional story, that requires a lot of mental effort to come up with, especially if it’s correct.

Stephan:

It does require mental effort, there’s no doubt about that. But the question is, do you own effort? Do you own labor, or is it just something you do with your property? If you think of ownership as taking responsibility for what you do, that’s a different sense of the term. That’s another confusion, I think. When you combine that with originality and also where I was going with the division of labor thing, you need to live off this originality. That’s your career. That’s the way you’re going to make money, the way you’re going to survive. Ayn Rand said you live off the products of your mind as a human. So, we need to recognize that in some way in law to protect that so people can live off the products of their mind.

Scott:

I think a lot of Rand’s insights are correct, but some of them are more metaphorical. The problem is, I think she didn’t quite fully realize that there’s really a conflict between—let me give an example, and I don’t want to be patronizing because this stuff is not easy. I think it’s understandable that she made a mistake. I understand why even Rothbard messed this up too. All of us would agree—Objectivists and libertarians—that there is a mistaken idea that the government could easily just feed the poor by printing more money. We understand the problem with that argument, right? The problem is that when you print more money, you dilute the value of existing money. In other words, it would just be a disguised transfer of wealth from one person to another. Nothing comes for free. The same problem is the case with positive rights, which is why we all basically talk about negative rights. There’s a right to have people refrain from violating our rights, but there’s no positive rights, which are welfare rights. Because if the government protects negative rights but also tries to protect positive rights, you can’t do both because the positive rights come at the expense of negative rights. If the government protects my right to my body, my car, and my house, but it also gives people a welfare right to go to college or have free food or housing, that’s got to come from me because they have to tax me to do it. The same thing is true, I believe, of intellectual rights because they have to come at the expense of existing physical rights. It’s not like you can just say, first, we recognize real property rights, and then we also recognize intellectual rights by analogy, and we just add on to the rights. They have to come at the expense of these rights. The reason is, it comes in the form of the negative servitude I talked about. Just like your wife says, it’s like telling you what to do with your property. Ultimately, the question is, if I come up with a useful way to put ink on paper, and I turn this stack of paper and ink into Atlas Shrugged and sell it, it’s worth more than just the ink and the paper by itself to a buyer because the buyer wants it arranged in a certain way. That’s Schulman’s argument: the identity of the thing is the book itself. It’s not the novel, kind of this Platonic abstract idea of it, and they’re just one instantiation of it. Then you should have the right to all copies of the book. But what they don’t understand is that’s claiming a right in what Roderick Long calls a universal. If you own a car, let’s say you have a red car. Your car is red, but you don’t own that feature of the car, that characteristic or property of the car. You don’t own its redness. Because if you did, you would own every other car in the world or every other thing in the world that was red. You can’t own a characteristic of a thing. The thing is, information is always a characteristic of a thing because information doesn’t exist on its own. I learned this being a patent lawyer writing computer software claims when I was trying to claim—you can write a patent on an object or an apparatus, we call it, or on a process or a method, a way of doing something, right? Those are method claims. But when you write a method claim, in the computer age, you wanted to get a patent on that method but also on a computer-implemented way of doing it. So, I would write a set of claims on the method, like a flowchart, but I would also write a set of claims on a computer-implemented method of doing it, like the computer designed to perform these steps, but also, at the time, a CD-ROM. I would say, okay, a CD-ROM that has imprinted on it the information that would lead a computer to perform these steps because I was trying to get a patent claim that would cover someone selling a CD-ROM at the time that, if implemented on a computer, would infringe a patent. But then we also came up with these claims called signal claims. I said a signal. But that got a little metaphysical because the idea is, what if I don’t—and this is an analog to streaming video games now as opposed to buying a copy of it or streaming music or movies. I don’t necessarily have to have a physical copy of a program that performs these patented steps. I could just have it beamed to me from a satellite over the electromagnetic airwaves, right, in the air. But you have these digital signals which don’t really exist as a physical thing, but they have to have a carrier wave. I agree with some Objectivists—I’m a big skeptic of quantum physics, and I’m a fan of—I think there is an ether. There’s no such thing as a wave without an ether, but that’s another issue.

Scott:

Stuff we don’t fully understand yet.

Stephan:

Well, I probably agree with you a little bit there because I think there is something, you know, I call it just space. I think space is a thing—it’s not a thing, but it’s the closest you can get to nothing, and it provides a medium for everything that exists to travel through. My view is, I’m influenced by Petr Beckmann, who is an Objectivist-influenced electrical engineering professor, and his theory is that the gravitational field itself is the ether, but that’s a whole different issue.

William (47:07):

Before we get further, just to keep on technology for a moment, is it fair to say that copyright law changes with advances in recording and reproduction? I read the 1910 Copyright Act was partially a response to whether piano rolls on player pianos—

Stephan:

Correct. The original Copyright Act only covered basically books and maps, maybe. You could argue that modern copyright is unconstitutional because the original clause didn’t encompass things like what are covered now. But the copyright statutes have evolved to cover computer code, which I think is unconstitutional because software is patentable also because it’s functional. It’s not really expressive. It’s either one or the other. But copyright software code can be covered by patents or by copyright, which makes no sense to me.

William:

Is it just, you know, with AI, for example, are we now stifling what AI can do because—

Stephan:

Yes. I was going to say, you said it evolves, but it actually doesn’t evolve fast enough because—this is a good example—copyright is not free. It always hurts something. It slows down the development of knowledge. Patents are even worse. I think patents do the most damage because the reason the human race is richer now is because we have more technological knowledge at our disposal. Every generation or every day, we get more and more that people can dip in and use, and patents intentionally slow down or impede the development and spread of that knowledge and make the human race poorer. Elon’s been opening his patents. He started that a long time ago because he realized that he needed to open any patents he had up to make sure he didn’t scare away competitors because he needed to have a bigger market to have a piece of than it’s better to have 10% of a huge market than 80% of a zero market. Twitter did that too a long time ago. Twitter had an agreement with their employees where they granted the right to their employees to limit the ability of Twitter to use their patents aggressively. They tried to tie their own hands.

Scott (49:28):

Before we get further, you mentioned to me in your note that you’ve been questioning IP yourself. So, I’m just curious, what is your take as an Objectivist on patent and copyright, and what are the reasons why you’re questioning it?

William:

Yeah, speaking for myself, it’s things like Elon going to open source. It’s seeing things like how, with Rand, they used to have $200 tape sets that you had to have all these provisions for exactly how you used it, and you had to play the whole thing. Then they realized, oh, it’s actually better to give a lot of the stuff away and draw people in that way. Also, what’s going on with AI? It’s like, we’ve got this incredible tool, and it’s like all these things. I’m not trying to make money off of this just because I want to include a song or a picture of something that’s trademarked.

Stephan:

You should try this. If you go to Grok or ChatGPT and ask it, “Recite for me page 17 of this book,” it will come up with all kinds of excuses. If you ask it why it can’t do that, it will ultimately admit it’s because of copyright. So, the designers are intentionally gimping it, and it will admit that if it was free of copyright, its training would be better and less distorted, and it could store things and give better answers. It’s really putting a serious barrier on an extremely important and developing technology. That’s an example of why copyright—it’s not utilitarian. Look, if you say that the drug war destroys lives, that’s not a utilitarian argument. It’s illustrating the reason we oppose injustice, right? The reason we favor property rights that would not allow the drug war is because if you allow the drug war, it’s going to cause human death, destruction, and misery. That’s not a consequentialist argument. There’s nothing wrong with illustrating the negative effects of unjust laws.

William:

Right. But I’m just saying, before, we had an issue with whether or not it was actually going to be stifling creativity to have these copyright laws.

Stephan:

The thing is, you don’t see—there’s the seen and the unseen, right? We don’t know how much technology and artistic work has been distorted or stifled because of copyright and patent because there’s lots of things that happened in the past that we got away with because they happened too quickly without permission, like Uber. You had rap music doing sampling. You have documentaries that are produced, but a lot of documentaries are not produced because people know it’s too hard to get the permissions because of copyright. So, you have a huge distortion of culture. You have Bill Gates being interviewed in the 1990s saying that if there had been software patents at the time—that was a later thing—Microsoft could never have gotten off the ground. There’s lots of early technology that got away with it, but now the way patent law and IP law have morphed, there’s lots of things that are being strangled. We just don’t know what’s being killed off because that’s the untold or the unseen costs of the state and unjust laws. One other thing I was going to bring up as an aside: there’s now a trademark that the Ayn Rand Institute put on the name Ayn Rand. I guess they would try to argue they were protecting her reputation from people. I don’t think it’s enforceable or that they’ve ever even necessarily tried to enforce it.

Scott:

Trademark law is a little counterintuitive. The way trademark law works is, the more descriptive a name is, the less enforceable it is because you can’t get a trademark on “French fries” or “pizza” because then everyone would have to come up with a different name. But if I make up a name like “Cloud Discs” or something that’s not descriptive and not accurate, then I can get—that’s why people come up with fanciful names. Kleenex used to be a name for tissue; it’s become generic because of overuse. Xerox used to be one. Our show’s called Ayn Rand Fan Club. Are we in trademark violation? That’s so descriptive, it would be hard to get a trademark on that unless you had a famous aspect to it after a certain number of years of use. But it would still be a very narrow mark. That’s the way trademark works. The odd thing about trademark is, unlike patent and copyright, there’s almost a slight justification for being a little bit of a trademark bully in today’s world, which has trademark law, which I would abolish too. I would abolish every form of IP, some for independent reasons. If you wanted to rank them as far as the worst, patent is the worst, copyright’s next, defamation law is the next worst, reputation rights, and then trademark, and then trade secret.

William:

Wait, you’re saying you’re against defamation law?

Stephan:

Absolutely. Yeah, because there’s no reputation right. Walter Block and Rothbard have argued this, and a few other libertarians. You can’t have a property right in value or in the value of your property. You only have a property right in the physical integrity of it. So, you don’t have a property right in what other people think about you. You can use your printing press to disparage somebody.

William:

Can you incite violence against them?

Stephan:

No, you can’t incite violence. That’s a different thing. Chapter eight in my book is about causation. I think if you incite violence, that’s a completely different thing. So, not all speech is free, actually. I don’t believe in free speech. If your speech plays a causal role in aggression, then you can be liable. If I say, “Ready, aim, fire,” and my firing squad kills an innocent guy, then I’m responsible. Or if I’m a mafia henchman and I give my underling an order to go kill someone, I think I could be responsible for that. But that’s not because of defamation.

Scott:

Private theater.

Stephan:

That’s a more complicated issue. Rothbard talks about that—it’s more of an issue of property rights of the owner, like what do his rules permit? But in general, if you’re in a place and you do something like that, and your words have a causal effect on other people’s rights, then that could be something like a tort or something like that. But that’s got nothing to do with reputation rights, which is what defamation law protects.

William (56:38):

You’ve touched on Hoppe and Rothbard. Any thoughts on the recent rise of the Mises Caucus taking over the Libertarian Party a couple of years ago?

Stephan:

Well, I was sort of part of that in the sense that I watched it from the side. Although I’ve been a libertarian since 1982, basically, I never was a member of the party until about six years ago when the Mises Caucus emerged, and Dave Smith and Tom Woods and these guys joined it. I did vote for Ron Paul and people like that over the years when I voted, but I wasn’t a member of the party because I’ve been skeptical of activism. But I finally realized that, well, if you’re going to have a party out there, and you’re always going to have a Libertarian Party, even if it fell apart tomorrow, it would rise from the ashes because someone’s always going to want to use that name. You might as well have people who are actually libertarians running as candidates. For many years, they had terrible candidates who weren’t really libertarians and unclear messaging. So, I figured, let’s have the Mises Caucus take over, and maybe they can at least have libertarian candidates and a libertarian message. So, I joined, and I’m actually on their judicial committee now. At that convention about three years ago, before I was on the committee, I helped the Mises Caucus draft a clarification of the principles of property rights and what aggression is. That’s in there now.

Scott:

Jefferson of the Mises Caucus.

Stephan:

Yeah. On that topic, by the way, just a couple of days ago, I released a brand new document called The Universal Principles of Liberty. I wrote this in collaboration with some other colleagues, but it’s a kind of systematic statement of libertarian property rights principles, principles of justice, and principles of law. I’m pretty happy with it. I don’t think anyone’s ever done anything like this before. It’s based upon a more coherent, systematic understanding of property rights, based somewhat on Rand’s views but more on Rothbard and especially on Hoppe and Mises, and my own development of it, which I had to clarify to sort out the IP issue. Getting the IP issue under control mentally required me to improve my understanding of property rights in general. So, I’m pretty happy with that.

William (59:27):

Good. Is Milei an inspiration for ancaps and even the broader liberty movement?

Stephan:

There’s a lot of controversy and debate about that. Hoppe, just this morning, I posted on his site an open letter where he and some others resigned from the board of Mises Institute Germany because they are giving a big award to Milei. So, there are people like—Block can join the German group. No, I’m kidding. He probably could. Yeah, he was ousted by Hoppe. So, Hoppe and others are not happy with Milei. Now, there are other activist types who are doing the libertarian happy dance and think it’s the greatest thing since sliced bread, kind of like Ron Paul in 2008, and there were all these memes, and it was like, “It’s happening,” and Lew Rockwell was writing, “See you at the inauguration.” Libertarians always get so excited about something, like the Randians. My understanding is, this crowd of people around Rand when she was writing Atlas Shrugged, they were all so enthusiastic and thought that when it was published in 1956, within six months, the world would be Objectivist, rational, and free. This kind of youthful, naive optimism. I understand it takes that level of optimism to build a long-term movement. They used to laugh at the socialists, too. It may, but I’m a fan of being self-honest and not deceiving yourself for goals. I like realism and to know where I stand. The point is, people always get excited about something, and then five years later, it’s gone, and they’re on to the next thing. I don’t think they quite understood how ideas impact culture and how long it takes for an idea to take root.

Scott (1:01:37):

That came later, I think, with maybe Leonard Peikoff.

Stephan:

I totally agree. Look, until maybe 10 years ago, I always used to say when I was younger that most people are decent people; they just don’t understand basic economics. So, if we could just have most people in the world read Economics in One Lesson, we would have a libertarian world. I kind of naively thought that. So, our mission as activists is to persuade people to read that. That is so naive on several levels because, number one, that’s never going to happen. Most people don’t have our interest in reading books and things like that. They have their other interests. So, they’re never going to read it. Even if they did read it, I don’t think it might make the world better if more people were economically literate. But you would still have this problem of the public choice problem, the prisoner’s dilemma problem that we have, where once you have a state like we have now, even if everyone was an Objectivist in America, I think you would still have a big statist problem because everyone has a rational incentive to, once Congress is in session and they’re taking from A to give to B, you might as well fight with special interest lobbying to get your slice of the pie, and then it happens all over again. So, the only solution is to have no state, I think, really, because otherwise, you’re going to have eternal squabbling over a sort of spoils system. I kind of think now that the only way to achieve liberty is the slow, gradual way of hoping the human race matures and gradually learns things by practical experience and osmosis and by teaching examples. One example I like to give is, until the Soviet Union collapsed in 1991, everyone would say, “Well, it’s either capitalism or socialism; one has some advantages over the other.” Now everyone knows that central planning is not the way to go. They didn’t learn that from reading books; they just learned that from seeing it collapse. That’s been a teaching moment. People have this wariness about central planning now and too much central planning. It’s starting to come back a little bit. People are forgetting. That’s the problem. People forget. But I’m hopeful that with AI and technology and maybe post-scarcity production of super wealth someday, despite the state, maybe we’ll gradually become more liberal and more humane, less religious, less tribalistic, more individualistic, and we’ll just sort of become more liberal or libertarian because we can afford it and we become smarter. I don’t know. That’s my only hope, you know, but I don’t think we’re going to do it by being activists and preaching it.

William (1:04:21):

Yeah, it’s got to come from within to some degree. That’s good. William, any final questions?

Scott (1:04:28):

I have one more, but I don’t know if it’s going to be easy to answer in a few minutes. I want to ask you about this idea of forfeiting your rights because you hear people talk about murderers, like if you murder someone, then you forfeit your right to your life. I’m wondering if you think that’s the proper way to conceptualize rights because, in my view, you have rights, and you don’t lose them just because you do something criminal. What happens is other people stop respecting your rights or recognizing them, and so the state says, “Well, we’re not going to recognize your rights, and we’re going to lock you up and put you on trial because we suspect you of this.” Does that mesh with your view of the nature of rights and how they are affected when you commit a crime or something like that?

Stephan:

Yeah, I think it’s semantics. I think it doesn’t matter what word we use to describe that process, but basically, if you recognize that there’s a concept called the non-aggression principle, which is what Rand said, basically, when she says no man may start the use of violence, right? So, she’s distinguishing between defense or what I call response violence. She’s distinguishing between the initiation of violence against someone else and the response to that violence. So, there’s a moral distinction there, and there should therefore be a legal distinction and a normative distinction. In other words, some actions are justified, and some are not that use force. Actions that initiate force are not justified, and actions that are in response to force are justified. Likewise, the same with laws that are based upon that. So, a law that prohibits murder is justified because it’s basically sanctioning the use of force, legal force, or the community’s force against a guy that’s initiating force. But a law that puts you in prison if you don’t go to war for the country, conscription, or if you don’t pay your taxes, or if you don’t show up for jury duty, or if you sell drugs or put the wrong drugs in your body, or if you’re the wrong religion or whatever—those laws are unjust because they’re the initiation of force against someone who didn’t commit force. What those laws recognize is that, in some cases, if you use force against me, it’s unjustified; it’s aggression. But in some cases, it is justified, like if I use force against you because you’re trying to attack me, and I’m defending myself, then you don’t have the right to complain about that use of force against you. So, we have a distinction here. We’re making a distinction: someone has the right to complain about force being used against them, or they don’t have the right to complain. If it’s self-defense, you can use whatever word you want to describe that. You can describe that situation by saying, “Well, that means the invader has forfeited his rights.” That’s just a way of saying that the use of self-defense against him is justified. So, I think that the use of force against an aggressor in self-defense and even after the fact for purposes of restitution or even retribution or punishment is justified. Whether you want to call that a forfeiting of rights or not, to me, is just semantics. I use that term. Randy Barnett, I reviewed his book, The Structure of Liberty, and he didn’t want to use that word “forfeit,” but I said, “Well, I don’t think it matters what word we use because the words are just describing our view about the justice of a given type of action.” Does that make sense?

William:

Yeah. Just to tag on there a little bit, I view it as rights are contextual, you know, like—

Stephan:

First of all, Ayn Rand says we believe in objectivity. So, values are objective. Everything’s objective. So, that means there’s a context in which you have a certain right, and then there’s a context where you don’t. As long as you’re being peaceful and not murdering people, you have these rights. But then the context changes when you murder somebody.

William:

Absolutely. That’s a good way to look at it. Another aspect of that is her quite good response to people who bring up emergency cases. There are situations where—and John Locke and others recognized this—there’s a phrase in the classical liberal literature called “where peace is possible.” There’s a presupposition that peace among people is possible, that cooperation is possible, that it’s good to live in society, that there need not be conflicts among rational people in most cases. But you can imagine cases where there is conflict, like, I don’t know, I think Rand or someone came up with this idea of, what if there’s another species of vampires? Then there’s no way we can have cooperation with them because their self-interest is to kill us, and ours is to kill them. Now we can only fight. Or, you know, if you have two people stranded on a lifeboat and there’s only enough food for one, then there’s no way. By the way, these lifeboat examples are terrible because they’re trying to poke holes in principled libertarian or Objectivist things. But it’s like, socialism wouldn’t solve that problem either. You can come up with things where there’s no good solution, right? There’s a war of all against all, in effect. Socialism won’t solve it either. It just gives a winner. It may choose a different winner, but it doesn’t solve the problem. Sometimes you have, you know, if there’s two people in a desert and there’s only one bottle of water, there’s no way they’re both going to survive. Rights and normative thinking won’t solve the problem. So, we’re almost in the case that Rand talks about at the core of her ethics, which is—I think Rand’s ethics is really hypothetical. They don’t like to admit that because it’s an if-then thing: if you value life, then you should live like a man or certain things like that, right? It’s hypothetical in that sense, but she would say that the choice to live is amoral or premoral because you can’t say someone should choose to live because the “should” there is a normative thing that’s based upon values. But if you don’t value living, then there’s nothing to rest that on, right? Although, I think in her heart of hearts, just like me, I might admit theoretically that I can’t tell you whether you should choose to live or not. Once you choose to live, then I can tell you how you should live your life, right? Live like a man. But I think we would say, you should choose to live, right? I think we all think you really should choose to live. That’s what we really think, right?

William:

You have to be alive to make choices.

Stephan:

But we also think it’s actually objectively good to be alive. If your friend asks you, “Hey, I’m thinking about killing myself. What should I do?” You wouldn’t say, “Well, I can’t tell you because if you choose not to live, there’s no basis for me to criticize you because you haven’t.” You say, “Don’t kill yourself, dude. Give it a month. Maybe things will get better.” I think any healthy person tries to live as long as possible. If you value yourself, then you want to live, and that’s just the natural choice.

William:

They do. But Rand says that choice is premoral or amoral. You can’t criticize it based on morals because morals come from that choice to live, right? But as a descriptive, factual matter, it is true that most life—life is a process that exists for a reason. It wants to perpetuate itself, right? A healthy person does want to live because they value living. They enjoy living.

Scott (1:12:42):

Exactly. Well, this has been a great conversation. Depending on what legal things come up, maybe we can call on you in the future. But we’ll put up a link to your website and to that new piece you referenced. Thank you so much for joining us. I’m Scott Schiff, along with William Swig. This is the Ayn Rand Fan Club, and we’ll see you next time. Take care.