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Kinsella on Liberty Podcast: Episode 471.

This is my talk this morning at Jayant Bhandari’s (@JayantBhandari5) Capitalism & Morality 2025 (Vancouver) conference. My topic is similar to some recent ones, to-wit: KOL259 | “How To Think About Property,” New Hampshire Liberty Forum 2019 and KOL420 | There Ain’t No Intellectual Property: The Personal Story of a Discovery (PFS 2023). For relevant background see also Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), e.g. chs. 2, 9, 14, 15, et pass.

The audio is from my iphone. I will replace it with the video and better audio at a later date.

In my talk I focused on the the role of scarce means (conflictable resources) in action. I had to finish my talk before turning to the second part of action one needs to analyze to fully understand property rights and the intellectual property debate: the knowledge that guides actors in the use of means. For more on this, see Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Rights; Hayek’s “Fund of Experience”; the Distinction Between Scarce Means and Knowledge as Guides to Action and, for the application of this framework and approach to IP, see The Problem with Intellectual Property.

For Part 2, see KOL472 | “What Is Property? And What Is Not? — Part 2 — Fireside Chat on Intellectual Property with Albert Lu,” Capitalism & Morality (Vancouver).

Powerpoint slides (Powerpoint – pptx file):

Shownotes by Grok:

Event Introduction and Societal Reflections

The talk begins with Jayant Bhandari welcoming attendees to the Capitalism and Morality Seminar, reflecting on its inception in 2010 and the open-mindedness of Western culture that allowed such events. He contrasts this with his experiences growing up in a “hellhole” and warns of Canada’s declining safety and emerging bureaucratic hurdles, like security questionnaires for controversial speakers. Bhandari emphasizes the divide between savagery and civilization over socialism versus capitalism, urging society to heed the speakers amid systemic crises.

Kinsella’s Background and Intellectual Journey

Stephan Kinsella, a libertarian attorney and intellectual property expert, shares his evolution from Ayn Rand’s influence to anarcho-libertarianism shaped by Rothbard, Mises, and Hoppe. As a patent lawyer, he initially sought to justify intellectual property (IP) but concluded it’s unjustifiable after deep research, leading to his book Legal Foundations of a Free Society. He humorously notes the radical yet innocuous nature of his talks and stresses rethinking core concepts like property to resolve IP puzzles.

Clarifying Property Terminology and Rights

Kinsella delves into precise definitions, explaining that “property” refers to rights in things, not the things themselves—derived from Latin “proprius” meaning “one’s own.” He distinguishes property rights as the right to exclude others, not unlimited use, using examples like fist-swinging or gun ownership to show they limit actions, not other property rights. He critiques common misuses, like calling ideas “property,” and highlights Hoppe’s view of property as foundational to social sciences, defining aggression, contracts, socialism, and capitalism.

Distinction Between Possession and Ownership

Drawing on Robinson Crusoe hypotheticals, Kinsella differentiates possession (physical control, applicable even in isolation) from ownership (normative rights emerging in society to support possession against interference). He explains human action per Mises involves using scarce resources to alleviate uneasiness and change the future, with property rights providing normative backing. Mises’ terms like “catallactic ownership” (possession) versus “juristic ownership” underscore this, noting economists often conflate them.

Emergence and Principles of Property Rights

Kinsella traces property rights’ evolution in systems like Roman and English common law, emphasizing original appropriation (homesteading), contracts, and self-ownership as core principles to resolve conflicts over scarce resources. Every society has property rules identifying owners, even if unjust like in dictatorships. Libertarians advocate consistent application to oppose aggression, with socialism as institutionalized interference. He concludes by inviting questions, reinforcing property’s role in peaceful cooperation.

***

Slides, video, transcript below.

I also participated in a Fireside Chat later that day with Albert Lu, whose podcast I’ve been on in the past. ¹

Rick Rule and Albert Lu a few weeks ago on the conference:

 

Slides (powerpoint .pptx):

YOUTUBE TRANSCRIPT cleaned up by Grok

Transcript: What is Property? What is Not?

Below is the cleaned-up transcript of Stephan Kinsella’s talk at the Capitalism and Morality Seminar, with topical section headings and timestamps aligned with the original YouTube transcript.

Introduction and Event Logistics

A while ago, I gave a presentation. If you want, I can share it, but it might disturb the video recording, as the videographer may struggle to integrate it. It’s better not to use the presentation, as the screen can complicate things. The videographer can add it later if needed. I can send you the video when it’s done, as my videos tend to get watched later.

Welcome to the Capitalism and Morality Seminar

[JAYANT BHANDARI]

Ladies and gentlemen, good morning. My name is Jayant Bhandari, and I want to welcome you to this year’s Capitalism and Morality Seminar. When I first launched this seminar in 2010, I asked the university events manager if hosting a libertarian gathering on campus would be acceptable, unsure if these viewpoints would be welcomed. I suspected she leaned left, so I wanted to ensure she wouldn’t cause trouble. In the spirit of Western culture, she was open-minded and responded that what we discussed inside the room was our business. Despite living in the West for a long time, this openness still surprises me.

Back then, the university required me to use their preferred videographer, who charged a significant fee. When I explained I couldn’t afford it, the events manager reiterated that what we did inside the room was none of her business. I’ve heard this sentiment often in Western society, where even bureaucrats bend rules to do the right thing. I grew up in a hellhole, and I see that hellhole slowly arriving in Canada, a trend I’ve discussed for years.

Observations on Societal Decline

Today, we faced logistical issues: the IT person and coffee were missing, causing a half-hour delay. Unlike many in this audience, I see things differently because of my background. For me, the divide is not between socialism and capitalism—often debated as Swedish socialism versus American capitalism—but between savagery and civilization. Western society will face a reckoning in the coming years due to decades of misguided policies. I no longer live in Vancouver because I see what’s coming. When I moved here 20 years ago, it was a safe city with minimal major crime, but much has changed. This year, for the first time, I had to complete a security questionnaire about bringing controversial or politically connected speakers. Things are changing rapidly, and it scares me. I guarantee that within a few years, you’ll face issues like air conditioning failures and power outages—systemic crises I recognize from experience.

I hope Canadian society listens to today’s speakers. Our schedule is tight, and we’re 35 minutes behind, so I’ll cut lunch time to compensate. I’ll keep speaker introductions brief to maximize their speaking time.

Introduction of Stephan Kinsella

Our first speaker is Stephan Kinsella, a libertarian attorney and intellectual property expert from Houston. He’s authored numerous books and publications on international investment, political risk, dispute resolution, and property rights. He’s also a key figure at Dr. Hans-Hermann Hoppe’s conference in Turkey. Please welcome Stephan Kinsella.

Stephan Kinsella’s Opening Remarks

[STEPHAN KINSELLA]

Thank you, Jayant. I’m going digital with my notes today. It’s always impressive to speak on a Saturday morning to professional, busy people listening to a patent attorney discuss property rights without academic credit—you’re not even forced to be here. As for controversial speakers, I’ve spoken at Yale twice and Berkeley once without protesters. I’m almost offended because my talks seem innocuous, though they’re radical beneath the surface. People don’t get worked up about intellectual property or property rights because they don’t grasp the implications.

I’m glad to be here. I’ve known Jayant for years and have spoken at this event multiple times. I’m not a great speaker, as you’ll discover, but I no longer get nervous—maybe because I’m older or more confident in the topic. I prepared a PowerPoint to organize my thoughts but won’t show it.

Background and Libertarian Journey

I sometimes start with a joke, but I’ll spare you the groans. Here’s one I’ve used: Why do anarchists drink herbal tea? Because property is theft. I’m from Louisiana, a civil law state, and now live in Texas. I’ve been a libertarian for about 45 years, since high school. I’m a semi-retired patent attorney in Houston and a longtime libertarian writer, influenced initially by Ayn Rand, then heavily by Rothbard, Mises, and Hoppe. I’m an anarcho-libertarian thinker and writer.

After law school, I wrote on libertarian theory topics like contract theory, rights theory, causation, and intellectual property. I’m best known in libertarian circles for my work on intellectual property, starting in the mid-1990s. I began in oil and gas law in Houston in 1992 but switched to patent law due to better market opportunities and my engineering degree, which allowed me to move to Philadelphia.

Intellectual Property and Property Rights

Libertarian arguments for intellectual property always troubled me. Ayn Rand, in Capitalism: The Unknown Ideal, supported patents and copyrights but said it’s acceptable for them to expire after a finite period—17 years for patents, about 100 years for copyrights. This didn’t make sense to me; a natural right shouldn’t expire. As a rising libertarian writer and practicing patent attorney, I thought I could develop a better theory for intellectual property. Like my Catholic days searching for a solid argument for God, I tried to justify intellectual property but failed. Paraphrasing Walter Block, I was trying to justify the unjustifiable. Once I considered that intellectual property might be unjustifiable, everything fell into place. I concluded that all forms of patent law are flawed, as detailed in my book, Legal Foundations of a Free Society, published two years ago, which compiles my ideas on libertarian legal theory, including intellectual property.

To resolve the intellectual property issue, I had to rethink common-sense concepts of property, justice, and law. Solving this puzzle, though not my favorite topic, required combining expertise in economics, libertarian theory, law, and intellectual property law. Once clarified, the case against intellectual property is simple and can be explained in five minutes to anyone with an attention span longer than a cocker spaniel’s. After solving a problem, it seems obvious, like marginal utility theory after Menger and others resolved the diamond-water paradox.

Rethinking Property Concepts

To address intellectual property, I had to rethink property rights, asking seemingly dumb questions, as I did in law school. My friend Bob Murphy, an Austrian economist, does this too, questioning why people value things to prompt deeper thought. My Philadelphia colleague Steve Mendelson, in his article “Confessions of a Law School,” described asking basic questions like, “What’s a tort?” or “What’s a magistrate?” to challenge assumptions.

As a patent attorney, my mentor Bill Norbell taught me to interview engineers and record their explanations to write patent applications. Engineers often assume knowledge, so I asked basic questions—like “What’s a photon?”—to ensure clarity. They’d think I was clueless, but when they reviewed the draft application, they’d realize I was listening carefully. Precision in definitions is critical because words have multiple meanings, and language is inherently analogical and imprecise. Böhm-Bawerk, a favorite Austrian economist, warned against confusing practical habits with scientific truth, emphasizing the limits of metaphors in economic theory.

Clarifying Terminology in Property Rights

Libertarians often say we’re against “government schools,” not “public schools,” which in England mean private schools, highlighting terminological confusion. Similarly, we’re not against coercion but against aggression—the initiation of force. Coercion, like threatening force to detain a robber, can be justified. The term “voluntarist” is misleading; “consensualist” better captures our emphasis on consent, as voluntary actions can be coerced, like handing over a wallet under threat.

Hans-Hermann Hoppe, in A Theory of Socialism and Capitalism (1989), calls property the most basic social science category after action. He defines aggression, contract, socialism, and capitalism in terms of property: aggression as violation of property, contracts as non-aggressive relations between property owners, socialism as institutionalized aggression against property, and capitalism as institutionalized recognition of property and contractualism. Socialism’s essence is institutionalized interference with private property, distinguishing it from private crime.

Defining Property and Property Rights

We intuitively understand property, saying, “That car is my property.” But terminology matters in law. Yiannopoulos, a Greek law professor, notes that “property” derives from the Latin proprius, meaning “one’s own.” In the U.S., “property” often refers to either objects or rights in objects. For precision, property should denote rights to things, not the things themselves. Saying “That car is my property” is slightly misleading; it’s a thing in which I have a property right. In intellectual property debates, opponents claim I argue ideas aren’t property, but the question is whether ideas are things over which property rights can apply due to potential conflict.

Property rights assign ownership to resolve conflicts over scarce resources. They’re not a right to use but a right to exclude. The saying “Your right to swing your fist ends where my nose begins” is misunderstood; it’s not about limiting property rights but about actions. Your property right in your nose limits my action of swinging my fist, not my property right in my fist. Similarly, owning a gun doesn’t grant the right to shoot someone, as their body’s property right restricts my actions, not my gun ownership.

Property Rights as Social Relations

Property rights are relations between people regarding things, not between a person and a thing. Robinson Crusoe on an island has possession of a coconut but no property rights, as there’s no one to respect or violate them. Property rights emerge in society to support possession normatively, allowing owners to exclude others, backed by legal enforcement.

We call things “property” because they’re extensions of ourselves, like a spear for a hunter. Resources are useful, so we identify them as “ours,” though technically, we have property rights in them. Mises distinguished possession (sociological or catallactic ownership) from legal ownership, recognizing that economic analysis studies possession’s implications, while law adds normative ownership.

Human Action and Property

Human action, per Mises, involves using scarce resources to achieve ends, driven by uneasiness about the future. We act to change the future state of the world, using causally efficacious means, like a spear to catch fish, not irrational actions like a rain dance. Property is critical because we manipulate scarce resources to achieve goals, making them extensions of ourselves.

Property Rights in Society

In society, others’ free will introduces the risk of interference with possession, necessitating property rights to protect it. Over time, civilized societies recognize possession normatively, supporting it with laws. Property rights emerged over 2,500 years, from Roman law to English common law and modern civil law systems, all recognizing original appropriation (homesteading) as the primary way to acquire ownership, alongside contracts.

Every society has a property rights system, even totalitarian ones, where the king may own everything. Libertarians advocate consistent application of self-ownership and homesteading principles, opposing aggression as violations of property rights in bodies and resources.

Conclusion

I’ll stop here due to time constraints but can answer questions later. Thank you very much.

 

1. • KOL193 | The Economy with Albert Lu: On IP and Double Counting (3/3)
   • KOL192 | The Economy with Albert Lu: On the Legal Significance of Ownership (2/3)
   • KOL191 | The Economy with Albert Lu: Can You Own Bitcoin? (1/3)
   • KOL171 | With Albert Lu Discussing Stossel and IP
   • KOL139 | Power and Market Report with Albert Lu: Law, Careers, Scholarship; Intellectual Property Law Policy, Law, and Career [↩]