KOL476 | Alex Anarcho Reads and Comments on Against Intellectual Property: Summary of IP Law (Part 1)

by Stephan Kinsella on November 8, 2025

Kinsella on Liberty Podcast, Episode 476.

Alex Anarcho has begun a narration of Against Intellectual Property, with interspersed commentary. (I appeared on his podcast previously; see KOL444 | Property Rights, Bitcoin, Ideas & Fungibility, with AlexAnarcho.) He has so far narrated the first two sections, the first of which, “Summary of IP Law,” is in this episode. “Libertarian Perspectives on IP” follows in the next episode (KOKL477). I have posted a Youtube video containing both parts. Alex assures me that narrations with commentary of the remainder of the book are forthcoming.

Previous audio versions include KOL008 | Against Intellectual Property (audiobook) and KOL373 | Against Intellectual Property (audiobook #2). Others audio versions of my work at https://stephankinsella.com/media/#audio-books.

Transcript, with added comments and links, below.

Transcript

(All endnotes and comments in [brackets] are my annotations. —SK)

0:04
Alex Anarcho: Hey, thanks for tuning in to the Alex Anarco podcast. In this episode and the episodes to follow, I will return to my roots, namely reading books from great libertarian philosophers.

When I started the podcast, I was reading The Anatomy of the State by Rothbard, The Ethics of Liberty by Rothbard, What Has Government Done to Our Money by Rothbard, and The Virtue of Selfishness by Ayn Rand. Then I did a bunch of episodes that were not based on books, but where I was giving my thoughts and having conversations with other like-minded people.

But now I think it’s time to read yet another book. This book has been very influential in my own thinking about the libertarian philosophy and I think it’s a must-read for all who call themselves libertarian or anarchists because it really covers an issue that has not gotten so much attention in the libertarian canon. There is a lot of thought that was spent on political philosophy such as The Ethics of Liberty by Murray Rothbard. But this book is kind of a hidden gem.

So if you have never heard of it, I think it’s a great read or for you I guess a great listen and something you definitely should be aware of. The arguments presented are very strong and they need to be grappled with.

For me personally, it was very influential, like I said, and it has significantly changed how I view the world, most specifically the world of software. For anybody who has been aware of my podcast, I’m a very big fan of the cypherpunk ethos that aims to change the world through creating technologies that are unstoppable that allow individuals who use them to become sovereign.

And I think yeah the backbone for all of this philosophy is also somewhat rooted in the arguments that are put forth in this book or at least they are heavily backed up by the arguments.

So what is the book? The book is called Against Intellectual Property by Stephan Kinsella as you may have gleaned from the title of this podcast.

And Stephan has actually been on this podcast before. I will link in the show notes the episode I did with him. And for a long time I’ve wanted to read this book to my audience and discuss the ideas put forth in it. So far I didn’t get around to it and now I think is better than never.

So we will read Against Intellectual Property. We will discuss the ideas and as with any of my episodes, if you want to chime into the conversation, you can go to my website, alexanarcho.live or if you want to reward me for making this content, you can go to xmrchat.com/alexanarco and leave a little tip with Monero XMR. It would be greatly appreciated.

Also, if you helped fund this episode, then you are eligible to join a secret Discord, a secret Matrix society on the Matrix messenger. For this you have to go to my website and claim your transaction. And when claiming the transaction in the form, you simply provide your Matrix username and this will yeah the bot will send you an invite then to the group.

Let’s dive in Against Intellectual Property.

AIP:
Property rights: tangible and intangible. All libertarians favor property rights and agree that property rights include rights in tangible resources. These resources include immovable immovables (realty) such as land and houses, and movables such as chairs, clubs, cars, and clocks.

4:18
Alex Anarcho: So I think this is a brilliant distinction and the word tangible may be somewhat foreign but it means exactly what was described here. Basically in my mind it’s things that you can touch. So I can walk up to a house and touch the house. I can walk up to a chair and touch the chair. And so things that exist in the real world. ¹

And for those things, libertarian philosophy puts forth the idea of property rights that these tangible commodities, tangible goods can have a rightful owner. And yeah, I think this is something that we’ll come back to every now and again that this is pretty a clear-cut issue and there is not a lot of discussion on this. Basically, from John Locke on the idea of being able to homestead land is very deeply interwoven in libertarian philosophy.

AIP:
Further, all libertarians support rights in one’s own body. Such rights may be called self-ownership as long as one keeps in mind that there is dispute about whether such body-ownership is alienable in the same way that rights in homesteadable external objects are alienable.

5:48
Alex Anarcho: So alienable means you can kind of outsource them or give them away to somebody else. And I think what he’s referring to here is the discussion that for example Walter Block and Murray Rothbard have had—I mean Rothbard has passed away—but the idea can you sell yourself into slavery and for this I will actually read the footnote which reads:

AIP:
Debate over this issue manifests itself in differences over the issue of inalienability and with respect to the law of contract, i.e., can we sell or alienate our bodies in the same manner that we can alienate title to homesteaded property? For arguments against body inalienability, see Stephan Kinsella, “A Theory of Contracts: Binding Promises, Title Transfers, and Inalienability.”

So for example, as I understand it, Rothbard says that you cannot sell yourself into slavery. Like your will is inalienable and therefore you cannot like in perpetuity sell your will to your own body. And Walter Block is of a different opinion as I understand it and say well yes you can do that. ²

So there is some dispute in that regard but I guess the common ground is that we do agree that we own our own body. ³ Yeah. So this is the most immediate thing that we have in the world. If we think back to in The Ethics of Liberty, Rothbard explains the scenario of Robinson Crusoe being stranded on his deserted island and the immediate reality he’s faced with is the possession and property of his own body that like he can control his own body and he kind of also has to sustain his body in order to keep on living.

AIP:
In any event, libertarians universally hold that all tangible scarce resources—whether homesteadable or created, immovable or movable, or our very bodies—are subject to rightful control (or ownership) by specified individuals.

8:29
Alex Anarcho: Yeah. So, we’ll not get lost in the discussion of can you sell yourself into slavery for this episode, but we’ll just surf on the wave of agreement in libertarian circles that yes you can have these property rights in tangible scarce resources.

And I think with texts like these is really really important to measure every word. So tangible means things you can touch and scarce means that there is a limited amount of them. ⁴

And the whole idea of property rights is because of the scarcity aspect.

If things were abundant and you could have like press a magic button and things would just appear out of thin air, property rights wouldn’t really make a whole lot of sense. The purpose of property rights is to reduce conflict that we can have over these scarce resources. Namely, well, can I sleep in this particular bed or is that your bed to sleep in? So, in order not for us to bash our heads in, we come up with the idea of property rights, which then gives us a clear guideline to establish who can now sleep in that bed. And yeah.

All right. Also what I want to point out is that the ownership is by individuals. Yeah. So not a collective. Just interesting side note.

AIP:
As we move away from the tangible (corporeal) toward the intangible, matters become fuzzier. Rights to reputation (defamation laws) and against blackmail, for example, are rights in very intangible types of things. Most, though not all, libertarians oppose laws against blackmail, and many oppose the idea of a right to one’s reputation.

10:29
Alex Anarcho: And I think Rothbard made this argument also in The Ethics of Liberty that what is my reputation? Is that something that I own? Well, no, not really. My reputation is your estimation of me that you hold in your own head. And I mean, do I now have a right over some of your thinking about me? No. ⁵

Because here the immediate self-ownership of one’s own body and thereby mind is yeah very much takes precedent I would say over the idea of a reputation and Rothbard in Ethics of Liberty put this like he followed this very logically so he was like okay blackmail it’s not criminal in the sense of the libertarian philosophy because blackmail just means that I offer to kind of hold my tongue in exchange for some payment.

And yeah, so the classic example would be I see my neighbor who cheats on his wife. Now I approach my neighbor and I say, “Oh, I saw you cheating there. If you don’t want me blabbering to your wife, you now have to make payments to me.” And again, what’s the situation with property rights there? Does my neighbor have property rights over knowledge or information that I hold in my own head?

And if not, then it’s totally legal for me to offer a contract to not yeah, disseminate this information to the world. And again here Kinsella makes the point that there is some disagreement but I myself definitely fall into the camp of Rothbard here that it’s pretty clear to me like you have some information in your head and you can do with that information whatever you want. ⁶

AIP:
Also disputed is the concept of intellectual property (herein referred to as IP). Are there individual rights to one’s intellectual creations, such as inventions or written works? Should the legal system protect such rights? Below I summarize current U.S. law on intellectual property rights. I then survey various libertarian views on IP rights and present what I consider the proper view.

13:16
Alex Anarcho: All right. So obviously we live in a world with intellectual property rights. This is a very big industry. We have a lot of things like patents and trademarks and copyright and whatever. And this yeah presents that the illusion okay we do have intellectual property.

And as you may guess from the title of the book, Kinsella does not really agree with this, but nevertheless, it’s not such an easy topic or it’s more nuanced. Yeah. So, let’s really dive into what the current state of IP, intellectual property laws are, and we’ll focus on the case of the U.S. for this because of course, Kinsella is a U.S. citizen. So now we dive into the summary of IP law.

AIP:
Types of IP. Intellectual property is a broad concept that covers several types of legally recognized rights arising from some type of intellectual creativity, or that are otherwise related to ideas. IP rights are rights to intangible things—to ideas as expressed (copyrights), or as embodied in a practical implementation (patents). Tom Palmer puts it this way: “Intellectual property rights are rights in ideal objects, which are distinguished from the material substrata in which they are instantiated.” In today’s legal systems, IP typically includes at least copyrights, trademarks, patents, and trade secrets.

15:11
Alex Anarcho: Now, here our distinction from the beginning becomes important again. We have this tangibility aspect to some things that exist in the physical world that we can touch. And intellectual property now tries to expand this concept of property rights to intangible things. So to something like an idea and of course you cannot touch an idea, you cannot kill an idea. And yeah this is the basic distinction between normal property rights or property rights in physical tangible goods and in intangible things. ⁷

AIP:
Copyright. Copyright is a right given to authors of original works, such as books, articles, movies, and computer programs. Copyright gives the exclusive right to reproduce the work, prepare derivative works, or to perform or present the work publicly. Copyrights protect only the form or expression of ideas, not the underlying ideas themselves. While a copyright may be registered to obtain legal advantages, a copyright need not be registered to exist. Rather, a copyright comes into existence automatically the moment the work is fixed in a tangible medium of expression and lasts for the life of the author plus 70 years, or for a total of 95 years in cases in which the employer owns the copyright.

17:00
Alex Anarcho: So I think to most on the internet the idea of copyright is familiar. This can yeah if you have for example these streamers who watch other streamers streams and react to them or don’t react to them this is can be copyright struck or if you are re-uploading music of an author on YouTube you may also be copyright struck and so this is yeah a broad concept on the internet that if you are using the works of somebody else then yeah you may get a copyright strike and some legal trouble may ensue.

And I think the important thing here is to differentiate that of course if now I have a original idea rare as that may be the idea itself is not protected it’s just like I write a book on an idea and now my book yeah the expression of this idea is covered by copyright. And it’s also interesting to note that how long this copyright lasts. Yeah. For 95 years in cases in which the employer owns the copyright. So a very long time.

AIP:
Patent. A patent is a property right in inventions—that is, in devices or processes that perform a “useful” function. A new or improved mousetrap is an example of a type of device which may be patented. A patent effectively grants the inventor a limited monopoly on the manufacture, use, or sale of the invention. However, a patent actually only grants to the patentee the right to exclude (i.e., to prevent others from practicing the patented invention); it does not actually grant to the patentee the right to use the patented invention.

19:08
Alex Anarcho: And I think before we continue this is a very important distinction. Yeah. So the government comes in and grants you a monopoly on some invention or process and you now can go to the government if you find your neighbor is using the same thing and say well they are violating my property right of the patent that I have filed with you and now you dear government are forced or I mean the government gladly forces then the neighbor to not use that invention or process. So you have the right to exclude your neighbor from the invention or process.

AIP:
Not every innovation or discovery is patentable. The U.S. Supreme Court has, for example, identified three categories of subject matter that are unpatentable, namely “laws of nature,” “natural phenomena,” and “abstract ideas.” Reducing abstract ideas to some type of “practical application”—i.e., a “useful, concrete, and tangible result”—is patentable, however. U.S. patents since June 8, 1995 last from the date of issuance until 20 years from the original filing date of the patent application. (The previous term was 17 years from date of issue.)

20:58
Alex Anarcho: So patents are much shorter lived than copyright and there are some cases in which a thing or not really thing an idea is not patentable under the U.S. Supreme Court.

AIP:
Trade secret. A trade secret consists of any confidential formula, device, or piece of information which gives its holder a competitive advantage so long as it remains secret. An example would be the formula for Coca-Cola. Trade secrets can include information that is not novel enough to be subject to patent protection or not original enough to be protected by copyright (example: a database of seismic data or customer lists). Trade secret laws are used to prevent “misappropriations” of the trade secret or to award damages for such misappropriations. Trade secrets are protected under state law, although recent federal law has been enacted to prevent theft of trade secrets.

22:06
Alex Anarcho: I think the example of Coca-Cola drives this really home. Yeah. So the formula for our dear Coca-Cola beverage is not something that is protected by a patent or a copyright and instead how they yeah keep it secret is by reducing the people that know about it and contracting with the people who know about it to not divulge that information.

AIP:
Trade secrets protection is obtained by declaring that the details of a subject are secret. The trade secret theoretically may last indefinitely, although disclosure, reverse engineering, and/or independent invention may destroy it. Trade secrets can protect secret information and processes (example: compilations of data and maps not protectable by copyright) and also be used to protect software source code not disclosed and not otherwise protectable by a patent. One disadvantage of relying on trade secret protection is that a competitor who independently invents the subject of another’s trade secret can obtain a patent on the device or process and actually prevent the original inventor—the trade secret holder—from using the invention.

23:32
Alex Anarcho: Also very interesting. So, let’s imagine Coca-Cola has this secret recipe and I’m totally obsessed like Captain Ahab and I want to recreate this formula. Theoretically, I could now in my basement brew one elixir after another until finally I have landed on the exact formula for Coca-Cola. And in this case, yeah, there is nothing Coca-Cola can do. I did this with my own property and I was under no contract to refrain from doing that. As Kinsella points out here.

Now, if I as the original inventor opted on purpose not to pursue a patent on this invention of mine that I just kept secret, the second inventor who is maybe less morally inclined can then go to the government and patent my invention or I guess they invented it too and then once they have obtained the patent exclude me as the original inventor from using my invention.

AIP:
Trademark. A trademark is a word, phrase, symbol, or design used to identify the source of goods or services sold, and to distinguish them from the goods or services of others. For example, the Coca-Cola® mark and the design that appears on their soft drink cans identifies them as products of that company, distinguishing them from competitors such as Pepsi®. Trademark law primarily prevents competitors from infringing upon the trademark (i.e., using confusingly similar marks to identify their own goods and services). Unlike copyrights and patents, trademark rights can last indefinitely if the owner continues to use the mark. The term of a federal trademark registration lasts 10 years, with 10-year renewal terms being available.

25:42
Alex Anarcho: Yeah. So, from the secret formula of Coca-Cola, we now move to their iconic font that you most definitely know from all of their sugary beverages. And this is now subject to a different kind of intellectual property, namely a trademark. And of course, yeah, Coca-Cola can prolong their trademark because otherwise there probably wouldn’t be a Coca-Cola company, if it expired at some point. So, they have to kind of like renewing your Netflix subscription. They renew their federal trademark registration subscription every 10 years.

AIP:
The other rights related to trademark protection include rights against trademark dilution, certain forms of cybersquatting, and various unfair competition claims. IP also includes recent legal innovations such as the mask work protection available for semiconductor integrated circuits (designs), the sui generis protection similar to copyright for boat hull designs, and the proposed sui generis right in databases (or collections of information).

In the United States, federal law almost exclusively governs copyrights and patents since the Constitution grants Congress the power “to promote the progress of science and useful arts.” Despite the federal source of patents and copyrights, various related aspects such as ownership of patents are based on state law, which nevertheless tend to be fairly uniform from state-to-state. Federal trademarks, by contrast—not being explicitly authorized in the Constitution—are based on the interstate commerce clause and thus only cover marks for goods and services in interstate commerce. State trademarks still exist since they have not been completely preempted by federal law, but federal marks tend to be more commercially important and powerful. Trade secrets are generally protected under state, not federal, law.

28:14
Alex Anarcho: So interesting distinction here again for me. This goes kind of into the weeds of U.S. legal frameworks. What’s a state law? Yeah. So is it a law of Ohio or Illinois or is it a law of the these United States of the federal government encompassing all of the states? So there are some differences here but I think we don’t have to dive deeper into this.

AIP:
Many laymen, including libertarians, have a poor understanding of IP concepts and law and often confuse copyrights, trademarks, and patents. It is widely and incorrectly believed that in the U.S. system the inventor who first files at the patent office has priority over those who file later. However, the U.S. system is actually a first-to-invent system (unlike most other countries, which have a first-to-file system for priority).

29:20
Alex Anarcho: The point I want to take home here is that we not be confused by intellectual property. If we are to oppose intellectual property, we ought to understand what is actually encompassed by it. And so throwing everything in the same bucket, the copyrights, the trademarks, the patents is really doing us a disservice. And we should know the landscape i.e. the legal landscape here in the U.S. to have an opinion on it. And fortunately, Kinsella has written this very good book in helping us understand this landscape.

AIP:
IP rights and relation to tangible property. As noted above, IP rights—at least for patents and copyrights—may be considered rights in ideal objects. It is important to point out that ownership of an idea, or ideal object, effectively gives the IP owners a property right in every physical embodiment of that work or invention. Consider a copyrighted book. Copyright holder A has a right to the underlying ideal object, of which the book is but one example. The copyright system gives A the right in the very pattern of words in the book. Therefore, by implication, A has a right to every tangible instantiation (or embodiment) of the book—i.e., a right in every physical version of the book, or at least to every book within the jurisdiction of the legal system that recognizes the copyright.

Thus, if A writes a novel, he has a copyright in this work. If he sells a physical copy of the novel to B in book form, then B owns only that one physical copy of the novel. B does not own the novel itself and is not entitled to make a copy of the novel even using his own paper and ink. Thus, even if B owns the material property of paper and printing press, he cannot use his own property to create another copy of A’s book. Only A has the right to copy the book (hence, “copyright”).

31:54
Alex Anarcho: I think copyright for me is one of the most interesting aspects of intellectual property. And I mean maybe you can already glean some of the absurdity that follow if we try to apply this concept of copyright idea. I mean having the property right of the idea of the book kind of like in this Platonic sense. Yeah. So Plato with his example of the cave that we are all strapped down in the cave and we’re just looking at shadows being cast on the cave wall by a fire that is behind us.

And then yeah in the ideal world there is the embodiment of the novel I don’t know For Whom the Bell Tolls or what other work you may have and that the author the Ernest Hemingway in this example of For Whom the Bell Tolls would then have the property right of that ideal form and thereby also the right to be the only one who can create copies of it.

AIP:
Likewise, A’s ownership of a patent gives him the right to prevent a third party from using or practicing the patented invention, even if the third party only uses his own property. In this way, A’s ownership of ideal rights give him some degree of control—ownership—over the tangible property of innumerable others. Patent and copyrights invariably transfer partial ownership of tangible property from its natural owners to innovators, inventors, and artists.

33:48
Alex Anarcho: And that’s where I’m going to leave off the reading for today’s episode. But yeah, maybe you can already kind of begin to see and maybe that’s a good exercise before listening to the next episode to try to square that circle that property rights or intellectual property rights to be exact kind of seem to conflict with the property rights that we had already established in the libertarian sphere.

So what I always like to do is to come back to the example of Robinson Crusoe on his island and then later on Friday joins. So we have can kind of simulate a economy of peers yeah of human beings that presumably have the same kinds of rights i.e. that they own themselves and they can homestead the land on which they live and which they find like provided by nature.

So untouched resources they mix their labor with the soil and gain ownership over that land that apple tree that fish that they pull out of the sea or whatever. And now this idea of prop intellectual property rights enters the picture and yeah I mean let’s do the example.

So we have Robinson living on one side of the island and Friday on the other and let’s suppose for the sake of argument there’s also a state on the island who enforces intellectual property. And now Robinson tries to invent like a fishing net to be able to catch fish better and he does. And Friday also completely on his own invents the same thing.

Friday then goes to the state and patents his invention. And one day he sees Robinson using the fishnet that he came up with and he patented. And then he goes to the state and says, “Well, Robinson is using my intellectual property.” And the state then goes to Robinson and says, “Ah, you can’t do that. We take that net away from you and maybe you go to jail a little bit or you have to pay restitution to Friday, whatever.”

Even though Robinson made that net completely by himself, he gathered the rope used for it himself and all of that is completely in accordance with the homestead principle. And now, yeah, we come to this conundrum. I mean, of course, the example of Friday and Robinson seems somewhat contrived, but it really isolates the important stuff when it comes to things like property rights to political philosophy because it simplifies the world and we are left with the essence of it.

So yeah, this is the circle that now we seemingly have to square because intellectual property rights do exist. And I mean sure like I could come theoretically yeah I could come up with the works of Harry Potter or some other novel and then all by myself. Yeah. I mean, it’s very unlikely, but given the length of the universe, it could happen. But JK Rowling could then come knocking down my door with the fist of the state and say, “No, I actually own that idea of Harry Potter and whatever.”

So, yeah, I think this is a great setup. It was somewhat legal deep dive into what kinds of intellectual property we have in the U.S. today. Let’s just recap. So we have the copyrights. These are things like music, like books or whatever. Then we have patents. Patents are for inventions and processes or devices.

And then we have trade secrets which are not really per se enforced by the state. They can presumably also exist on a free market. And this could be the formula to Coca-Cola. And then we have trademarks. This could be the branding of some company, the font that Coca-Cola uses and whatsoever. Good.

And I also want to give you this homework to kind of start thinking about how this applies now to the cypherpunk landscape. I mean, Kinsella already hinted at it that this concept of intellectual property and namely copyright can also apply to code. Yeah.

So I think in the United States code is treated as free speech. In other words, it doesn’t really matter whether I write a program in C or whether I write Harry Potter. It’s basically same thing. Yeah. Bunch of characters on either a piece of paper or on a computer screen. But as we learned, it’s I mean it’s not the physical instantiation of that idea. It’s the abstract idea that counts for copyrights.

And of course yeah this comes to great effect in our modern technological world where a lot of things are governed by code. So this is where I’m going to leave you. I hope you had fun listening to the first two chapters of Against Intellectual Property.

If you like this make sure to go to my website alexanarco.live or leave me a tip in Monero on xmrchat.com/alexanarco. You can find more information in the show notes. You can find the book there. You can find the website of Stephan Kinsella. And I’m looking forward to our next episode where we will then dive into the libertarian perspectives on intellectual property because we will see that there are many different perspectives in the libertarian niche kind of on how you can grapple with these ideas.

Part 2: “Libertarian Perspectives on IP” [See the next episode, KOKL477]

40:28
Alex Anarcho: Hey there, thanks for tuning in to the Alex Anarcho podcast where we are reading Against Intellectual Property by Stephan Kinsella. This is the second episode and in this episode we will be covering the libertarian perspectives on intellectual property.

Before we start, let’s quickly recap what we learned in the first episode. Stephan Kinsella gave us a summary of intellectual property law as it is currently in the United States. We learned there are some differences between the various kinds of intellectual property. But yeah to begin with he made this distinction between tangible property rights so things that we can touch like houses, chairs etc. and now this intangible kind of property rights concerning ideas.

And in the U.S. we currently have four basic kinds of intellectual property law namely copyrights. So the right to copy a novel and we learned that this regards kind of like the arrangement of words that the author has thought up in their mind and they are supposedly the only ones who have the right to copy that arrangement of words onto books for example.

Then we have patents that are concerning inventions, devices, processes. And this patent right gives the holder of the patent the right to go to the government and exclude others from also using their invention, device or process. Thirdly, we have trade secrets. This would be the yeah formula for Coca-Cola for example and those are not primarily kept by the government and more contracted between the employer and employee. And last but not least we have trademarks. So this is regarding the recognizability of a brand. So for example the iconic Coca-Cola font.

So with this knowledge in our minds, this is really important because we want to have clear thoughts on intellectual property. We can now move on to the libertarian perspectives on intellectual property.

AIP:
Libertarian perspectives on IP. The spectrum. Libertarian views on IP range from complete support of the fullest gamut of IP imaginable to outright opposition to IP rights. Most of the debate about IP concerns patent and copyright. As discussed below, trademark and trade secret are less problematic. Therefore, this article focuses primarily on the legitimacy of patent and copyright.

43:47
Alex Anarcho: So, with our extensive background knowledge of the landscape of the intellectual property law in the United States, we can yeah come with some nuance to this discussion. And I think it’s really important that we kind of single out the most offensive kinds which will be patent and copyright.

AIP:
Pro-IP arguments may be divided into natural rights and utilitarian arguments. Libertarian IP advocates tend to adopt the former justification. For example, natural rights (or at least not explicitly utilitarian) libertarian proponents of IP include (from more to less extreme) Galambos, Schulman, and Rand. (Rand would be the least extreme of these three.)

44:47
Alex Anarcho: And before I continue reading here, I think it’s maybe for the people who are not yet so well-versed in political philosophy, we have these two camps, I would argue, that are using different arguments to justify property rights in general. And so one is the deontological camp or as it’s called here the natural rights camp. And the other is called the utilitarian camp.

The natural rights camp, the deontological camp is arguing like you have certain rights because of your nature as a human being, because of your faculty for reason that you use reason as your primary modus operandi to navigate the world and to sustain your life.

And the utilitarian argument, utilitarian means like the greatest good for the greatest amount of people. And those are just like basically consequentially arguing, well, if we do have property rights, this leads to the greatest good for the greatest amount of people. And while they may arrive at the same conclusion, it’s very different paths of argument that yeah a utilitarian always has to kind of think about what the consequences of a given legal framework would be and if that would benefit actually the greatest amount of people where the deontological camp is less concerned with that and they say you are just like these are your natural rights. It doesn’t matter if it leads to the good of the other people. Those are your rights.

And yeah, so just to keep that in the background and maybe as a funny aside note, what usually is the argument put forward by utilitarians is the trolley example that you have a train barreling down some tracks and there is a divide coming up. Currently, the train would run over five people, but you are in the unique position to flip a switch and then let the train run a different rail where it only runs over one person.

And now the question is, is it moral for you to flip the switch? Is it immoral for you to do nothing? And so on and so forth. And this is a very boiled down example of yeah having a greater amount of good because supposedly if five people are saved or a greater number of people are saved then this is better for society than if they die in opposition to just one.

AIP:
Among precursors to modern libertarians, Spooner and Spencer both advocated IP on moral and natural grounds. According to the natural rights view of IP held by some libertarians, creations of the mind are entitled to protection just as tangible property is. Both are the product of one’s labor and one’s mind. Because one owns one’s labor, one has a natural right to the fruit of one’s labor. Under this view, just as one has a right to the crops one plants, so one has a right to the idea one generates and the art one produces.

48:34
Alex Anarcho: Yeah. So basically trying to follow the same logic that we have for the homesteading principle. Well, if I can till my soil, plant some crops and harvest them and they are mine, then so too would be the ideas that tumble out of my brain.

AIP:
This theory depends on the notion that one owns one’s body and labor and therefore its fruits, including intellectual creations. An individual creates a sonnet, a song, a sculpture by employing his own labor and body. He is thus entitled to own these creations because they result from other things he owns.

49:16
Alex Anarcho: So Rothbard in The Ethics of Liberty I think gives this example of a sculptor who goes to the beach or whatever unowned natural resources digs up some clay thereby homesteading the clay and making it his own and then proceeding to sculpt a thing out of the clay a sculpture. And since he owns the clay beforehand, he now owns also the sculpture. And similarly, this argument follows that well, you own your mind. So would follow that you also own your ideas, the creations of your mind. ⁸

AIP:
There are also utilitarian pro-IP arguments. Federal judge Richard Posner is one prominent utilitarian (although not libertarian) IP advocate. Among libertarians, anarcho-capitalist David Friedman analyzes and appears to endorse IP on law-and-economics grounds, a utilitarian institutional framework. The utilitarian argument presupposes that we should choose laws and policies that maximize wealth or utility. With respect to copyright and patent, the idea is that more artistic and inventive innovations correspond with (or lead to) more wealth. “Public goods” and “free rider” effects reduce the amount of such wealth below its optimal level—i.e., lower than the level we would achieve if there were adequate IP laws on the books. Thus, wealth is optimized (or at least increased) by granting copyright and patent monopolies that encourage authors and inventors to innovate.

51:16
Alex Anarcho: And I think this is the classic argument that I usually encounter when arguing with people about intellectual property in general. This whole strain of utilitarianism is very strong in our modern world. Unfortunately, so because I think it leads to heinous conclusions about what would be moral and what wouldn’t. But that’s beside the point here, I think.

But we can summarize it like, well, if I can get a patent on my invention, then I’m more likely to slave away in my basement for years on end trying to find that perfect invention. So, because I know once I have it, it will be mine. It will be a monopoly granted by the state. And if I were not to have it, why would I invest so much time in research and development if the next person could just come along, take a good long look at my invention and then proceed to copy it? Like their whole incentive for me would fall away. Hence, I wouldn’t even bother inventing things and hence we would have stifled innovation.

AIP:
On the other hand, there is a long tradition of opposition to patent and copyright. More modern opponents include Rothbard, McElroy, Palmer, Lepage, Bouckaert, and myself. Benjamin Tucker also vigorously opposed IP in a debate in the 19th-century individualist-anarchist periodical Liberty. These commenters point out the many problems with conventional utilitarian and natural rights arguments given to justify IP. These and other shortcomings of standard pro-IP arguments are surveyed below.

53:12
Alex Anarcho: So just to recap this section, I think this is really good put forward by Kinsella that he tries to steel-man the arguments of the opposition. I mean obviously it’s the opposition because his book is titled Against Intellectual Property and not In Defense of Intellectual Property but when he spells out the arguments I think he does a great job of not arguing immediately against it just trying to put forth the argument as strongly as he can in defense of intellectual property.

Also, just as an aside note because it comes to my mind, I used to be a really big fan of Ayn Rand. Still am to some regard, but she really had a very strong stance on intellectual property and this is also some disagreement I have with her philosophy nowadays. Anyhow, let’s continue with the utilitarian defenses of IP.

AIP:
Advocates of IP often justify it on utilitarian grounds. Utilitarians hold that the end of encouraging more innovation and creativity justifies the seemingly immoral means of restricting the freedom of individuals to use their physical property as they see fit. But there are three fundamental problems with justifying any right or law on strictly utilitarian grounds.

54:49
Alex Anarcho: Interesting here that most utilitarians at least concede the point that well yeah of course we recognize that IP means that you cannot use your own property as you would see fit. Like if you happen to walk by your neighbor’s garage and he just rolls out this great invention that he had and you take a good long look at it and then proceed to your garage and copy it. We recognize that technically this is kind of your property and you should be allowed to do with it what you want.

But if you were allowed to do that then the entire society would suffer because your neighbor wouldn’t bother inventing the great invention in the first place.

AIP:
First, let’s suppose that wealth or utility could be maximized by adopting certain legal rules. The size of the pie is increased. Even then, this does not show that these rules are justified. For example, one could argue that net utility is enhanced by redistributing half of the wealth of society’s richest 1% to its poorest 10%. But even if stealing some of A’s property and giving it to B increases B’s welfare more than it diminishes A’s—if such a comparison could somehow be made—this does not establish that the theft of A’s property is justified. Wealth maximization is not the goal of law. Rather, the goal is justice: giving each man his due. Even if overall wealth is increased due to IP laws, it does not follow that this allegedly desirable result justifies the unethical violation of some individuals’ rights to use their own property as they see fit.

56:51
Alex Anarcho: And here we really I mean, do you recognize this? Do you recognize this argument of tax the rich and just redistribute the wealth of Elon Musk and Jeff Bezos to the poor people of the world and then we would all be so much happier. I mean this is made countless times in our modern world.

But here the deontological side of Kinsella shines through namely that it could well be that the welfare is increased but you have just committed a crime you have stolen A’s property and this is like it is never justified no matter how noble your intentions are right because it could mean that I rob somebody in the street and steal their wallet and proceed to give it to charity, would that then justify the theft? Well, I don’t think so.

And this is exactly the divide between utilitarians and deontological or natural rights thinking. If you are on the side of the natural rights, you believe that these violations of property rights of rights in general are always immoral. And if you are a utilitarian, you could be convinced, right?

If you can make the argument convincingly that actually robbing Elon of his wealth and redistributing it to other people is a net benefit, well then we could argue and we can talk about this. So this is what I was referring to earlier when I said that utilitarianism can lead to these heinous scenarios where well it’s actually a society net benefit if we just take your kidney because you know we could redistribute it and it’s really immoral for you to actually oppose this taking of your kidney. And of course I’m going into extremes here, but I think with these philosophical questions, the extreme is usually where we can make the argument yeah shine through the most.

AIP:
In addition to ethical problems, utilitarianism is not coherent. It necessarily involves making illegitimate interpersonal utility comparisons—as when the cost of IP laws are subtracted from the benefits to determine whether such laws are a net benefit. But not all values have a market price. In fact, none of them do. Mises showed that even for goods that have a market price, the price does not serve as a measure of the good’s value.

59:38
Alex Anarcho: So if you consider yourself an Austrian economist or a follower of the school of Austrian economics then you believe in the subjective value theory namely that things in the world never have intrinsic value. Such a thing doesn’t exist. Value is always in the eye of the beholder.

So you looking at a piece of bread, you have some estimation of value of that piece in your head. And me looking at that piece of bread, I have some different evaluation of that piece of bread in my head. And these values are hidden. You cannot show them to the world.

And even if you were to state, oh, I value this piece of bread at 1,000 units, units of utility, whatever that means, you could be lying. Like, how would I actually know that you’re telling the truth? And the brilliant insight of Austrian economics is that we don’t have to know what your actual valuation of a given good is.

As long as you voluntarily exchange it with some other party with an agreed upon price, we can say that okay this price for the piece of bread was one unit for example. So we can say with certainty that the valuation of that piece of bread for the seller was less than one and for the buyer it was more than one because the buyer was willing to give up one unit of whatever monetary commodity and the seller was willing to give up his piece of bread for that one unit of monetary commodity.

And the fallacy of utilitarianism is really to try to bring this math into it. Yeah. To have these utility functions where we can sketch out oh okay if we now increase the utility of A by two then it is a net benefit for society. But this is really a nonsensical exercise. We cannot compare these value scales among different people.

So in the economic terms we are also talking about ordinal values. So you can have a hierarchy of values where you say okay this is my number one value for example my own life and this is my number two value. So you have a ranking and what they are trying to do is these cardinal valuations where you have person A, person B and you can compare them between the two. But this is really not possible as the Austrian school of economics has established.

AIP:
Finally, even if we set aside the problem of interpersonal utility comparisons and the justice of redistribution and we plow ahead employing standard utilitarian measurement techniques, it is not at all clear that IP laws lead to any change—either an increase or decrease—in overall wealth. It is debatable whether copyrights and patents really are necessary to encourage the production of creative works and inventions, or that the incremental gains in innovation outweigh the immense costs of an IP system. Econometric studies do not conclusively show net gains in wealth. Perhaps there would even be more innovation if there were no patent laws. Maybe more money for research and development would be available if it were not being spent on patents and lawsuits. It is possible that companies would have an even greater incentive to innovate if they could not rely on a near 20-year monopoly.

1:03:44
Alex Anarcho: And I think so he begins yeah Kinsella begins to demolish the arguments for intellectual property on the libertarian spectrum here. And I think this argument as he put forward if the last two didn’t convince you yet is really strong. So he’s saying so let’s take that aside with the redistribution. Yeah. Stealing from A and giving to B and let’s leave aside the comparing utilities between A and B.

All of that just on the face of copyrights and patents, it’s not clear that if we have these legal frameworks to protect intellectual property that this is actually a net benefit for innovation because consider the millions and billions of dollars that are spent on keeping one’s intellectual property.

There was this fight I remember between I think Apple and Samsung about having rounded corners in their smartphones and this is all money spent in court where in the end the consumer gains nothing out of this. ⁹ Yeah. So it’s not entirely self-evident that just because you have this patent and copyright system that this benefits the consumer in the end because these millions and billions could also be spent on research and development.

And maybe if you cannot rely on this government monopoly to like lay down on your cushions and say ha now I invented something now I have a patent. Yeah, maybe you’re driven to innovate more to keep pushing. Yeah, because you especially cannot rest on the law and laurels I think that you have accumulated over the years. So it’s just not clear and it’s not self-evident that the patents and copyrights actually do lead to more innovation and benefit the consumer in the end.

AIP:
There are undoubtedly costs of the patent system. As noted, patents can be obtained only for “practical applications” of ideas, but not for more abstract or theoretical ideas. This skews resources away from theoretical research and development. It is not clear that society is better off with relatively more practical invention and relatively less theoretical research and development. Additionally, many inventions are patented for defensive reasons, including patent lawyers’ salaries and patent office fees. This large overhead would be unnecessary if there were no patents. In the absence of patent law, for example, companies would not spend money obtaining or defending against such ridiculous patents as those in the appendix.

In sum, it simply has not been shown that IP leads to net gains in wealth. But should not those who advocate the use of force against others’ property have to satisfy a burden of proof?

1:07:00
Alex Anarcho: So yeah, who is the burden of proof on? I guess the person who is trying to rob you at gunpoint or trying to prevent you at gunpoint from using your own property the way you see fit. And if they cannot have a convincing argument as we just seen that they don’t then well maybe you shouldn’t be so quick to pull the trigger.

And yeah, I think really interesting if we just consider I mean I’m not in the world of a patent lawyer, but I can try to imagine the legal effort it takes for let’s say an inventor to go this entire legal procedure to have their inventions filed just because out of defensive reasons. Yeah. If you don’t file the patent, some other schmuck may come along and file the patent in your stead and then they have the fist of the state behind them to prevent you as the original inventor to actually use your own invention. So you are kind of forced into this legal system and you have to spend resources there but where that’s really not your expertise. So it’s not entirely clear that the patent system is a net benefit.

AIP:
We must remember that when we advocate certain rights and laws and inquire into their legitimacy, we are inquiring into the legitimacy and ethics of the use of force. To ask whether a law should be enacted or exist is to ask: Is it proper to use force against certain people in certain circumstances? It is no wonder that this question is not really addressed by analysis of wealth maximization. Utilitarian analysis is thoroughly confused and bankrupt. Talk about increasing the size of the pie is methodologically flawed. There is no clear evidence that the pie increases with IP rights. Further, pie growth does not justify the use of force against otherwise-legitimate property of others. For these reasons, utilitarian IP defenses are unpersuasive. ¹⁰

1:09:13
Alex Anarcho: Wow. So really taking the hammer to the utilitarian argument there and I think I want to drive this home point home. The use of force when is it legitimate or when is it not? And this is really also something Rothbard in The Ethics of Liberty hammered home.

The entire point of political philosophy is to ask this question when under which circumstances is it justified to employ the use of force because if I mean there there is an extreme here right? We could say we are a pacifist. We always object to the use of force and Rothbard gives this example that always stayed in my mind.

That would mean going to the logical conclusion that say you come home and you find your sister being raped. You could not you couldn’t do anything to stop the rapist from it, right? You could there and say, “Well, maybe you shouldn’t do this. Try to convince him.” But really, you cannot use force to stop them. And so this is the one extreme, the pacifist.

And the other extreme would be the might makes right. You just bash everybody over the head. You want to take something from and you take it from them. And this yeah both extremes are not really feasible. So the question is under which circumstances is the use of force justified. ¹¹

And this is exactly what Rothbard in The Ethics of Liberty spells out. He tries to wrestle with according to the principles established by the homestead principle and tries to draw out the logical conclusions and when we talk about laws and government force is somehow a little bit removed right we like when you tell people hey taxation is theft conscription is slavery they are hesitant to believe it because after all it’s not like the mob who show up at your house demanding protection money I mean it’s kind of is like that there are just a few steps in between you know like this quote from Rick and Morty with that just sounds like slavery with a few intermediate steps and this is exactly the point right you try to take to formalize this use of force that hey I’m just the judge I’m just putting my hammer down and hey I’m just the police officer. I’m just doing my work. And hey, I’m just the jail warden who is doing my work. Like just doing my job, sir.

And so this removal or this splitting of the responsibility allows people to justify whatever they are doing in their mind and yeah not feel so evil. But when we take a step back, when we look at the bigger picture, this is exactly what laws are doing like they are saying hey this is an action which can be responded with by the use of force.

So it’s not really innocent when we talk about intellectual property. We are talking about legitimizing the use of force against people who are just using their own legitimate property as we have established in the Crusoe economy and The Ethics of Liberty.

AIP:
Some problems with natural rights. For me personally, I’m satisfied. I mean I’m not a utilitarian myself, so naturally I’m a little bit of a pushover when it comes to these arguments. But I think Kinsella put forward some really strong arguments that maybe even if you are a utilitarian yourself, then you may be convinced by those arguments that just on the basis of the consequentialist approach that it’s not really clear that actually having this idea of patents and copyrights does lead to a greater benefit for society.

Other libertarian proponents of IP argue that certain ideas deserve protection as property rights because they are created. Rand, for example, supported patents and copyrights as the legal implementation of the base of all property rights: a man’s right to the product of his own mind. For Rand, IP rights are, in a sense, the reward for productive work. It is only fair that a creator reap the benefits of others using his creation. For this reason, in part, she opposes perpetual patent and copyright—because future unborn heirs of the original creator are not themselves responsible for the creation of their ancestor’s work.

1:14:16
Alex Anarcho: And this was this is what I was alluding to earlier. Ayn Rand really has a strong opinion on property rights. And I mean she’s big when it comes to anything concerning the mind, right? Reason and the mind are central to Objectivism, Ayn Rand’s philosophy and she herself was an author writing The Fountainhead, Atlas Shrugged many other books and of course she felt like she owned this in some regard. Yeah. that she had the right to this idea that she created and I think it’s important to note that created here is printed in italic because I think we may circle back to that in a little bit.

AIP:
One problem—ah there we go. One problem with the creation-based approach is that it almost invariably protects only certain types of creations—unless, that is, every single useful idea one comes up with is subject to ownership (more on this below). But the distinction between the protectable and the unprotectable is necessarily arbitrary. For example, philosophical or mathematical or scientific truths cannot be protected under current law—on the grounds that commerce and social intercourse would grind to a halt were every new phrase, philosophical truth, and the like considered the exclusive property of its creator. For this reason, patents can be obtained only for so-called “practical applications” of ideas, but not for more abstract or theoretical ideas.

Rand agrees with this disparate treatment in attempting to distinguish between an unpatentable discovery and a patentable invention. She argues that a scientific or philosophical discovery which identifies a law of nature, a principle, or effect of reality not previously known is not created by the discoverer. But the distinction between creation and discovery is not clear-cut or rigorous. Nor is it clear why such a distinction—even if clear—is ethically relevant in defining property rights. No one creates matter; they just manipulate and grapple with it according to physical laws. In this sense, no one really creates anything. They merely rearrange matter into new arrangements and patterns. An engineer who invents a new mousetrap has rearranged existing parts to provide a function not previously performed. Others who learn of this new arrangement can now also make an improved mousetrap. Yet the mousetrap merely follows laws of nature. The inventor did not invent the matter out of which the mousetrap is made nor the facts and laws exploited to make it.

1:17:24
Alex Anarcho: And I think wow this is also a really strong argument in my opinion that this creation myth. Yeah. That it’s easy to talk about oh yeah I’ve created a novel. I created a better mousetrap. But when we really dissect every word and I think in the legal context we do have to do that. You didn’t create it.

You took some other matter, some other ideas and synthesized it or like Kinsella said rearranged it to create something more useful for you in the case of a better mousetrap. And yeah, nobody, no human can create matter. We all just take the matter that is in the universe and we can transform it making it more useful.

And if that matter was previously unowned natural resources, we thereby acquire ownership and property rights over that matter. So this creation argument and I mean it’s a clever attempt from Ayn Rand to distinguish between these discoveries and inventions. It’s an attempt but we see that it kind of falls flat and the distinction really does not hold up when we examine it closely.

AIP:
Similarly, Einstein’s discovery of the relation E=mc² once known by others allows them to manipulate matter in a more efficient way. Without Einstein’s or the inventor’s efforts, others would have been ignorant of certain causal laws, of ways matter can be manipulated and utilized. Both the inventor and the theoretical scientist engage in creative mental effort to produce useful, new ideas. Yet one is rewarded, and the other is not. In one recent case, the inventor of a new way to calculate a number representing the shortest path between two points—an extremely useful technique—was not given patent protection because it was “merely” a mathematical algorithm. But it is arbitrary and unfair to reward more practical inventors and entertainment providers such as the engineer and songwriter and to leave more theoretical science and math researchers and philosophers unrewarded. The distinction is inherently vague, arbitrary, and unjust.

1:19:57
Alex Anarcho: When it comes to, and this is me speaking now, when it comes to natural philosophy and natural rights philosophy, we really have to be careful with this arbitrary differentiation because we are in this realm of okay, what is the nature of things? And to make these arbitrary distinctions really can lead us astray and yeah lead to all kinds of curious cases.

And for example what comes to my mind here is how brilliantly Rothbard followed his own reasoning in The Ethics of Liberty. So the argument is that human beings are self-owners. They own their own body. And the question now is well when is that the case? When does a child become an adult full self-owner? And like when can they choose what choices they make in life? If they want to drink beer, if they want to gamble and whatever and in modern society we have some ages. Yeah. 18 21 this is when you are a full adult.

And Rothbard rejects this as arbitrary and rightfully so. Yeah. Because it’s just a number and maybe some person at the age of 18 is fully developed and some other is a child really. Yeah. So what should the correct answer be then?

And what I really appreciate about Rothbard is that he goes and follows his own principle which in this case would mean that hey the child actually is always a self-owner. They already own themselves. The question is now just when do they take the reins? When do they make their own decisions? And this is dependent on themselves.

So when the child lives with the parents in the parents’ house in the parents’ property the parents can make the rules and can say hey if yeah in German it’s kind of like a saying as long as you stretch your feet under my table you follow my rules. This is what the stern father would say to the rebellious youngster.

And it’s I mean really holds up when we follow this principle of homesteading because it is the parents’ home and or the father’s home or whatever and they make the rules and when they say our curfew is at 10:00 and you’re not home at 10:00 they technically have the right to close the door and don’t let the child in.

And similarly, the child or vice versa, the child has the right to say, well, I’m not going to stretch my feet under your table, father. I’m going to venture out into the world and find my own luck. And then they pack their bags and they are on their way.

And in the philosophy of Rothbard, this means that the child has now taken the full ownership of their own body and they can really make their own decision and choices. So this is what I mean by these arbitrary distinctions that if we have these principles in natural philosophy that we try to follow, we have to follow them completely and we have to arrive at whatever conclusion we arrive at.

So this distinction between some oh yeah it’s just a theoretical discovery and oh no this is actually a practical invention is really arbitrary and it tends to favor one kind of ingenuity over another. Yeah, I guess if you discover something, it’s not really ingenuity because it doesn’t have to do with engineering. But yeah, I hope you try to get the point that Kinsella is making here.

AIP:
Moreover, adopting a limited term for IP rights—as opposed to a perpetual right—also requires arbitrary rules. For example, patents last for 20 years from the filing date, while copyrights last, in the case of individual authors, for 70 years past the author’s death. No one can seriously maintain that 19 years for a patent is too short and 21 years is too long—any more than the current price for a gallon of milk can be objectively classified as “too low” or “too high.”

Again have to think back to The Ethics of Liberty by Rothbard because again yeah when it comes to this argument okay you homestead some piece of land how long do you maintain ownership of this piece of land and Rothbard really bites the bullet here and says well in perpetuity as long as you can prove that you were the first to homestead that piece of land you could be gone for 30 years or 50 years and come back and if you can reasonably show that you were the first appropriator of that land, then you have some claim to it. Of course, if in the meantime somebody else moved in and did their improvements on the land, then yeah, you have to sort this thing out. But it’s very clear in the mind of Rothbard that it doesn’t expire. Like property rights don’t have an expiration date.

Thus, one problem with the natural rights approach to validating IP is that it necessarily involves arbitrary distinctions with respect to what classes of creations deserve protection and concerning the length of the term of the protection. Of course, one way to avoid this difficulty is to claim that everything is protectable by IP, with perpetual (infinite) terms. So into infinity. Spooner, for example, advocated perpetual rights for patent and copyright. Schulman advocates a much broader concept of creations or ideas protectable by IP. He argues for property rights—called “logorights”—in any “logos” that one creates. The logos is the material identity or identity pattern of created things. The owner of a logos would own the order or pattern of information imposed upon or observed in material substances. The most radical of all IP proponents is Andrew Joseph Galambos whose ideas to the extent that I understand them border on the absurd. Galambos believed that man has property rights in his own life (“primordial property”), and in all nonprocreative derivatives of life. Since the first derivatives of a man’s life are his thoughts and ideas, thoughts and ideas are “primary property.” Since action is based on primary property, actions are owned as well. This is referred to as “liberty.” Secondary derivatives such as land, televisions, and other tangible goods are produced by ideas and action. Thus, property rights in tangible items are relegated to lowly secondary status as compared with the primary status of property rights in ideas. Even Rand once elevated patents over mere property rights in tangible goods, in her bizarre notion that “patents are the heart and core of property rights.” Can we really believe that there were no property rights respected before the 1800s when patent rights became systematized? Galambos reportedly took his own idea to ridiculous lengths, claiming a property right in his own ideas and requiring his students not to repeat them, dropping a nickel in a fund box every time he used the word “liberty” as royalty to the descendants of Thomas Paine, the alleged inventor of the word “liberty,” and changing his original name from Joseph Andrew Galambos Jr. (presumably to Joseph Andrew Joseph Galambos) to avoid infringing his identically named father’s right to the same name.

1:28:39
Alex Anarcho: I mean you got to give it to him. He’s consistent in his own ideas. But what I take away from this is okay instead of having physical property as the primary property and intellectual property kind of as a secondary derivative. This is flipped the other way around in that ideas come first. So thoughts come first, actions come first and then the tangible property is the secondary status. And this would then mean that well we couldn’t really have physical or tangible property rights without having the intellectual property rights.

AIP:
By widening the scope of IP and by lengthening its duration to avoid making such arbitrary distinctions as Rand does, the absurdity and injustice caused by IP becomes even more pronounced as Galambos demonstrates. And by extending the term of patents and copyrights to infinity, subsequent generations would be choked by ever-growing restraints on their own use of property. No one would be able to manufacture or even use a light bulb without getting permission from Edison’s heirs. No one would even be able to build a house without getting permissions from the heirs of the first proto-human who left the caves and built a hut. No one could use a variety of life-saving techniques, chemicals, or treatments without obtaining permissions of various lucky rich descendants. No one would be able to boil water to purify it or pickling to preserve foods unless he is granted license by the originators or their descendant heirs of such techniques. Such an unbounded ideal rights would pose a serious threat to tangible property rights and would threaten to overwhelm them. All use of tangible property would by now be impossible as every conceivable use of property, every single action would be bound to infringe upon one of the millions of past accreted IP rights and the human race would die of starvation. But as Rand noted, men are not ghosts. We have spiritual aspects but also a physical one. Any system that elevates rights in ideas to such an extreme that it overrides the rights in tangible things can clearly not be a suitable ethical system for living, breathing human beings. No one living can actually act in accordance with such an unrestricted view of IP. The remaining advocates of IP all qualify their endorsements by limiting the scope and/or terms of IP rights, thus adopting the ethically arbitrary distinctions noted above. A deeper problem for the natural rights position lies in its undue emphasis on creation instead of scarcity as giving rise to property rights as discussed below.

1:31:54
Alex Anarcho: So this is where we will pick up in the next episode when we will be talking about IP and property rights. But I think we had a pretty good overview so far of the libertarian perspectives on IP. So we learned that there is a wide array of ideas that circulate in the libertarian circles on how to justify intellectual property. There’s the utilitarian approach. Notably advocated by David Friedman, the son of Milton Friedman and a great thinker in his own right I would say. So I think his arguments are somewhat convincing. Not as convincing in my opinion as Murray Rothbard, but still I think it’s interesting to come from this utilitarian approach because I think also you can justify or like liberty and libertarian philosophy and property rights do lead to a greater good for the whole of society. Although I wouldn’t use this as justification for them. So this is interesting.

And we saw that the utilitarian argument for intellectual property rights really don’t hold up because we cannot compare utility among people. We would have to infringe on the property rights of some people to give property rights to somebody else. And thirdly like we cannot even make the distinctions between if it’s a net benefit for society to have patents and copyrights to begin with.

And then on the other hand we tackled some of the natural rights approaches to defend property rights. We saw that Ayn Rand’s distinctions are arbitrary and really nonsensical and if followed to its logical conclusions really end up in a world where we are bound and cannot decide anything and this again I’m sorry I have to draw so many parallels to The Ethics of Liberty but this again reminds me of it in one of the earlier chapters Rothbard explains communism as communism would normally be understood. Namely, that nobody is a self-owner in that they own their own body and make the choices for their own body, but that everybody owns a little bit of everybody else and themselves. But this would lead to a world where we are yeah never we can never act because in order to act we would have to get the consent of all of the other owners. So the human race would die out really quickly.

And similarly here with the IP argument that if there really was such a thing as intellectual property and the original creator of that idea or whatever we would have to get permission from them. Similarly the human race would also die out really quickly. And also like to me it comes to language. Yeah. If we think about language and I mean I’m using words here invented by somebody else. I don’t even know who and if I were to get permission from I don’t know who to make this podcast episode this you wouldn’t hear this. It wouldn’t have been made. So yeah, very interesting stuff.

If you want to chime in on this conversation, you can try to join my secret Matrix group. If you’ve helped unlock this episode, then you can claim your transaction and you will get an invitation link. I’ll leave a link to this in the show notes for this episode. I’ll also leave a link to Stephan Kinsella’s website, the book of course, if you want to read up all of the footnotes that I’ve skipped over here. And yeah, if you want to shoot me a little tip, you can do that on xmrchat.com/alexanarco. There you can send me a message and send over some Monero.

And then I would be really to see you again in the next episode because now we are getting into the good stuff. Yeah, so far we have just I mean we are warmed up now. Yeah, we understand a little bit of intellectual property what the different kinds of intellectual property are. We now saw some arguments for it and we saw some arguments against it. But I think now we are just about to really get into the meat of the entire thing and we don’t have that much left. Yeah. So let me jump back to the beginning of the book. We are now in part two I would say. No actually we are just finished with part two. So we have part three left which is called IP and property rights and then we have part four which is IP’s contract. So yeah the next one is going to be a really good one because I think Kinsella is going to lay out what he considers the right position on intellectual property. And if everything you’ve heard so far is unsatisfactory to you, you really don’t want to miss this one. So, make sure to subscribe my podcast and then I will see you in the next episode. Until then, have a good time.