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KOL491 | Trying to Persuade Paul Cwik of the Case Against IP

by on June 10, 2026

Kinsella on Liberty Podcast: Episode 491.

I’ve known Paul Cwik, Professor of Economics and Finance at the University of Mount Olive and fellow of the Mises Institute since I started attending the Austrian Scholars Conference in 1995. He is an Austrian and libertarian of sorts but had some qualms with my anti-IP writing so presented a paper “Is There Room for Intellectual Property Rights in Austrian Economics?” at the Austrian Scholars Conference in 2008, which I attended and commented on. After 18 years we finally decided to get around to talking about this. I had planned on an hour but we ended up talking for 3. It turns out we were old friends but not that close; we didn’t know much about each other. So the first 30-50 minutes or so is more preliminary discussion.

To his credit, he read a good deal of the huge deluge of material I sent to read up on and asked many very good questions. He did not engage in intentional equivocation that is characteristic of many on the pro-IP side, and he was reasonable in conceding many of my points and was willing to ponder my push back.

I was hoping to get him to see the light, since I have in person seen many people change their minds on IP after a long discussion but have never had it happen while recording. We did not resolve the issue, partly because we just didn’t have enough time to keep going, but I think we made some progress. Maybe we will have a Part 2 later. Who knows.

For now, some relevant links pertaining to some of the topics discussed. I will organize this better later.

(Not to be confused with Bryan Cwik, who also has opinions on IP: “Good Ideas is Pretty Scarce”; Bryan Cwik, “Property Rights in Non‐rival Goods” (2, 3, 4); “Labor as the Basis for Intellectual Property Rights” (2; 3); Gamrot, Labor as the Basis for Intellectual Property Rights: Against Cwik.)

Labor and Leisure

Creationism:

Part III.C.2

C. Contract and Fraud Arguments for IP

  1. Fraud and Plagiarism
  1. IP by Contract

I discuss problems with the contractual argument for IP in:

Related Links

Key Works

  1. The Problem with Intellectual Property (2025)
  2. “Intellectual Property and Libertarianism”, Mises Daily (Nov. 17, 2009). Concise case against IP.
  3. An Overview of Libertarian Property Rights and the Case Against IP (from KOL341)
  4. “The Overwhelming Empirical Case Against Patent and Copyright”

Other Recommended

    1. KOL483 | The Economics and Ethics of Intellectual Property, Loyola University—New Orleans (a very good recent overview)
    2. KOL 037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory

Shownotes/Topical Summary (Grok)

Stephan Kinsella with Paul Cwik • 2 hours 56 minutes

In this nearly 3-hour conversation, Stephan Kinsella and economist Paul Cwik explore their personal histories, shared libertarian and Austrian foundations, and engage in a detailed, respectful debate on intellectual property — particularly copyright. Kinsella lays out his principled case against IP while Cwik defends copyright (but rejects patents).

Timestamps & Detailed Summary

0:02 – Introduction and Casual Catch-Up

Kinsella and Cwik greet each other and set the stage. Cwik explains he has wanted to discuss IP with Kinsella for years because their views differ. He notes he has persuaded people in person on IP and hopes to document the conversation. They acknowledge this is not a typical Kinsella podcast.

1:38 – How Long Have They Known Each Other?

They reminisce about Mises Institute events. Kinsella’s first was in 1990; Cwik started attending in 1995. They recall the Austrian Scholars Conferences and the tight-knit Austrian community at Auburn in the 1990s.

2:16 – Paul Cwik’s Personal Background

Cwik describes growing up in Michigan, attending government schools, then Hillsdale College where Austrian economics was central. He switched from polysci to economics with a math minor to improve grad school chances.

3:40 – Austrian Professors at Hillsdale

Discussion of key influences: Richard Ebeling, Gary Wolfram (who introduced him to Bastiat), Ed Feser, and others. Cwik audited more mathematical classes to prepare for mainstream grad school.

5:08 – Graduate School at Tulane

Cwik received a full ride at Tulane but hated the heavily mathematical, non-Austrian program dominated by Chinese and Indian students focused on math rather than economics. He earned a Master’s and left after one year.

6:49 – Why Hillsdale & Path to Libertarianism

Cwik explains his early political interest and admiration for Alex Keaton/Reagan. He has always been free-market but identifies as a small-L libertarian and small-R Republican minarchist, not an anarcho-capitalist.

8:36 – Views on the State and Anarcho-Capitalism

Cwik argues we are too far from anarcho-capitalism and should focus on minimizing the state. He is optimistic that truth and markets will prevail but acknowledges human nature and collective action problems.

11:51 – Optimism, the Remnant, and Long-Term Commitment

Kinsella discusses Albert Jay Nock’s “remnant,” preserving ideas even if change is slow, and distrust of short-time-preference libertarians. He emphasizes fighting for truth regardless of immediate results.

13:31 – Growing Up in Michigan and Family

Cwik shares details of his Michigan upbringing in Sterling Heights, non-political parents, and being the most political in his family.

15:20 – Religion and Catholicism

Cwik is Eastern Rite Catholic. Light discussion of faith, comparisons to other Austrians like Sean Rittenour and Jeff Barr.

16:22 – Connections to Other Austrians

References to James Yohe, Jeff Barr, Scott Kjar, Doug French, and the Las Vegas Rothbard/Hoppe circle. Brief disagreement on limited liability corporations.

18:15 – Shared Agreement on Fundamentals

Strong agreement on individual rights, property rights, free markets, capitalism, and limited government. Both identify as Austrian economists.

18:59 – Type of Austrian Economics

Cwik centers on Mises but appreciates others. Kinsella notes socialist Austrians existed historically.

20:49 – Mises, Consequentialism, and Value-Free Economics

Kinsella explains Mises as a consequentialist who derived libertarian conclusions from economics. Discussion of utilitarianism critiques and Leland Yeager.

37:52 – Property Rights and the Non-Aggression Principle

Kinsella reduces libertarianism to property rights. Self-ownership, scarce resources, conflict, and the three principles (homesteading, contract, restitution) are outlined. See also What Libertarianism Is.

42:53 – Principles of Property Rights Assignment

Detailed explanation of homesteading as first use of unowned resources. Cwik asks whether copyright is derivable from Lockean theory. See The “Ontology” Mistake of Libertarian Creationists and Libertarian and Lockean Creationism.

46:08 – Historical Context of the IP Debate

Origins of the modern libertarian IP discussion in the early 2000s. Rothbard’s contractual copyright argument is introduced for critique. See Intellectual Property Rights as Negative Servitudes.

48:06 – Defining Intellectual Property

Kinsella explains IP as statutory monopoly privileges rebranded as “property rights.” Distinguishes patents/copyright (statutory) from trademark/trade secret (common law roots). See Types of Intellectual Property and IP Proponents Do Not Even Know The Difference Between Patent, Copyright, Trademark ….

50:41 – Locke’s Views on Copyright

Kinsella argues Locke did not derive IP from natural rights; support was consequentialist at best. Cites historian Ronan Deazley. See also The “Ontology” Mistake of Libertarian Creationists.

53:18 – Rothbard’s Contractual Copyright & Hoppe

Kinsella critiques Rothbard’s mousetrap example and contractual approach. Notes Hoppe’s strong opposition to IP. See Hoppe on Intellectual Property.

55:55 – Rothbard on Patents vs Copyright

Rothbard criticized patents but his copyright argument effectively supports patent-like protection for inventions. Common law copyright vs. statutory IP explained.

1:00:04 – Flaws in Rothbard’s Argument

Detailed critique: third-party buyers, privity of contract, negative servitudes on tangible property, and practical issues with retained “copying rights.” See Intellectual Property Rights as Negative Servitudes.

1:13:05 – Cwik’s Position on IP

Cwik opposes patents (independent discovery of natural phenomena) but supports copyright for original creations of the mind (stories, music, code). Open on trademarks.

1:18:20 – Scarce Means vs Knowledge in Praxeology

Kinsella distinguishes scarce/rivalrous means of action (subject to property rights) from knowledge and patterns (non-rivalrous). See On Property Rights in Superabundant Bananas and The Nature, Properties, and Characteristics of Goods.

1:27:40 – Rights, Actions, and Property Limits

Property rights limit actions, not other property rights. IP imposes non-consensual negative servitudes on owners of tangible resources (e.g., printing presses). See Intellectual Property Rights as Negative Servitudes.

1:40:18 – Conflict, Ideas, Religion, and 1984

All physical conflict concerns scarce resources (bodies, printing presses). Motives (religion, ideas) differ from the actual clash. Winston’s torture is conflict over control of his body.

1:48:50 – Reducing Conflict and Fraud

Why a no-IP world reduces conflict. Fraud exists independently and does not justify IP. Kinsella explains caveat emptor and why trademark is unnecessary. See Fraud, Restitution, and Retaliation: The Libertarian Approach and Libertarian Answer Man: Bitcoin and Fraud.

1:57:44 – Homesteading, Labor, Creation & Enclosure

Creation is not a source of ownership. First use/embordering establishes objective links to rivalrous resources. Patterns require a physical substrate and cannot override existing property rights. See Libertarian and Lockean Creationism, The “Ontology” Mistake of Libertarian Creationists, and What Libertarianism Is (Appendix on “Property”).

2:15:37 – Fraud Examples, Contracts, and Closing

Fake law school certificates, pretending to be a lawyer, and fraud vs. IP. Contracts for services, conditional title transfers, and insurance. Warm closing; both appreciate the exchange.

Conclusion

A rich, civil, and substantive conversation between two Austrians who agree on fundamentals but diverge significantly on whether copyright can be justified on Lockean, homesteading, or consequentialist grounds. Kinsella argues IP rights constitute unconsented negative servitudes on tangible property; Cwik sees copyright as legitimate recognition of original mental creations.

Full Length: 2 hours 56 minutes

 

 

Transcript (Grok/ChatGPT)

Introduction and Casual Catch-Up

0:02

Stephan Kinsella: Okay, Paul. Hey. Okay, Stephen. We just were chatting a little bit. We are going to do a little podcast talking about IPSUs and catching up.

Paul Cwik: You and I I was going to ask you the same question as you as you were saying. We have known each other for quite a while, but we do not know each other that well. So let me do a quick introduction for the listener as to what we are going to do and for you two and then we can talk casually first. I wanted to talk well I have wanted to talk to you for years about your views on intellectual property because I think they differ from mine and I wanted to kind of see where we diverge and if I can make any progress. The reason for this is over the years I actually persuaded people in person to change to my view. There are lots of people that have come around to my view of thinking online, but I have actually had conversations in person and they say, Oh, you persuaded me. And I have always wanted to catch that on film. So today is your chance.

But even if we do not do that, we can see where we disagree. But anyway, okay, let us resume our conversation. We were having a conversation. So I was explaining that I am 60 years old now. I am kind of retired. But I do a lot of this type of work still, intellectual libertarian theory work.

And by the way, this podcast is not a normal podcast. I do not usually interview people. I think I have done it two or three times over the last 10 years. Usually it is just a collection of when I am interviewed by people on their podcast. So you are a special guest. I appreciate that.

Topic: How Long Have They Known Each Other

1:38

Paul Cwik: And we were saying I think you and I probably known each other for 15, 16, 20 years. When did you start going to Mises events? Let me ask you that.

Stephan Kinsella: My first Mises event was 1990.

Paul Cwik: Okay. Well, I started going in 1995. So maybe we started seeing each other around that time.

Stephan Kinsella: Well, I would have been a Mises fellow at that point at Auburn. So that is probably it. So it has been a good 31 years then.

Paul Cwik: Yeah. So I was like for the first like I think the Austrian Scholars Conference I started going in 95 and I went to every one of those for about 13 14 years. Then that is it then.

Topic: Paul Cwik’s Personal Background

2:16

Paul Cwik: But you are right. We do not know a lot. I generally know you are just a good guy and an Austrian and I assume a libertarian and all that but tell me what is your story. So you are working as a professor now. What is your background and what is your deal?

Stephan Kinsella: Okay. So I grew up in Michigan and went to government school K through 12 and then I guess it was just sort of fortune that I ended up at Hillsdale for my undergraduate. And at Hillsdale College we had Austrian economics as the primary type of economics taught there. And Richard Ebeling was the Mises professor and so I grew up knowing only Austrian economics. I was never anything other than an Austrian economist. I started off as a polysci major and after a semester or two I switched to political economy and when I was thinking about graduate school they said if I become a pure economics major then I would have an easier time getting into grad school. So I graduated with just a pure econ major and a math minor. But I have had a lot of overlap with polysci as well.

Topic: Austrian Professors at Hillsdale

3:40

Paul Cwik: Hold on let me ask you so was Ebeling your only sort of Austrian professor or were there others?

Stephan Kinsella: So let us see Gary Wolfram started there and he is the first one who introduced me to Bastiat. So Frederic Bastiat, the libertarian economist, French economist from the early first half of the 1800s. And he is not an Austrian per se, but he is a fellow traveler. I had another guy named Ed Feser and he was not a very good professor but he actually did his dissertation in an Austrian style and he showed it to Hayek and he was part of the Mont Pelerin conference. He was one of the first people in the South Royalton Conference back in 1974. And then there was another young guy and I do not know if he finished his PhD or not. But he was only there for like a year or two. And he was a thorough Hayekian. And then there was a mainstream guy there who was also very friendly to Austrians. I actually when I was taking macroeconomics I audited the other guy his name was Van Eaton because he was the more mathematical more Keynesian cross sort of thing because I knew I needed it for grad school.

Topic: Graduate School at Tulane

5:08

Stephan Kinsella: So I applied for grad school and I got into a bunch of places but Tulane University offered me a free ride for five years plus. It was like a 17,000 stipend which was pretty awesome. So I went to Tulane.

Paul Cwik: Oh really? So you went to Tulane. So I am from Louisiana so you went to my home state.

Stephan Kinsella: Yeah. And I loved New Orleans. I loved my apartment. It was fantastic except for the program. I hated the program. There were 14 other students. Seven of them were from mainland communist China. And this was in the early 90s.

This was 92, 93. And they did not care about economics. They wanted to get to grad school. They wanted to get math PhDs. They could not get in. They wanted physics PhDs. They could not get in. What else has a lot of math?

Oh, economics. So they did not know who Adam Smith was. They had no idea. But they could do all the math. Five of them were from India. So then one guy was from the newly formed Czech Republic and he was just a weirdo. And then there was Tim. Tim was from Virginia.

Topic: Why Hillsdale College

6:49

Paul Cwik: Well, let me ask you this. So why did you go to Hillsdale in the first place?

Stephan Kinsella: Well, I was interested in politics. I went to a high school of 1800 students and I think there were like six conservatives. So I was already conservative or libertarian or what? I did not know really anything about libertarianism or that but Alex Keaton was my hero from Family Ties, right?

Paul Cwik: Yeah. You sound like me. I was a Reaganite and an Alex Keaton guy in high school. So when you chose Hillsdale on purpose and did you sort of when you were exposed to Austrian stuff were you also exposed to libertarian stuff and started becoming libertarian then or how did that happen? Or are you libertarian? I should ask.

Stephan Kinsella: I have always been free market and I do not know if it has ever been like oh I am libertarian. Oh I am conservative. It has never been one of those things. I do not remember actually saying, Ah, now I am a libertarian.

Paul Cwik: Well, let me ask you. Are you a libertarian?

Stephan Kinsella: I think I am a small L libertarian and a small R Republican. I am not a party person. I am a free market guy. I am a classical liberal. I am a minarchist. I am not an anarcho capitalist.

Topic: Views on the State and Anarcho-Capitalism

8:36

Paul Cwik: But are you like do you actually have a strong opinion or are you strongly in favor of the state or you are just not really persuaded of the anarchist case or something like that?

Stephan Kinsella: So first of all as a practical matter we are so far away from anarcho capitalism. I really think we need to put all of our energy into minimizing the state and pulling in the same direction. As we whittle down the state and if we are at that sort of minarchist thing, I am willing to dip my toe in anarcho capitalism. But I do not think it is going to work. And I cannot quite put my finger on why it is a human nature thing.

Paul Cwik: No, that is reasonable. But what makes you think we are going to whittle down the state? What makes you think we are heading in that direction at all?

Stephan Kinsella: Well, I want to be optimistic. I mean, why what do not you want to be realistic? I think realism tempered with some optimism. You have to think or at least hope that your ideas are having some impact and resonating with people. Plus I think the truth.

I think optimism is a choice. So I choose to be optimistic. If our ideas are true, if our ideas are correct and if interventionism does lead to immiseration and depression then markets will find a way and reassert themselves. Maybe it is a naive optimism. I think it is naive in the sense of look it is possible that the gray goo might kill us right the robots might kill us or plague or nuclear weapons or AI and we might know this but we might not be able to stop it. There are certain aspects of human social behavior that might lead to a like a prisoners dilemma type outcome where the problem is we have politics and we have the state and so this collective action that we have that we have the natural tendency among people for states to emerge or for power to emerge and I just do not see that stopping just because free market economics is correct that there is an efficient and a just way to do things does not mean that the free market will win but anyway that is a different issue.

Topic: Optimism, Remnant, and Long-Term Libertarian Commitment

11:51

Paul Cwik: No I see your point and there is a lot of validity right there absolutely. I kind of you probably read all this but I like the ideas of remnant from Albert J. Nock. This idea of the remnant so and fighting on the right side of things. The reason I am part of this is because I want to discover the truth and be a good person and lend my hand towards pushing in the right direction. Even if it is futile now or futile in the end, I still want to be on the right side of things. So and preserve the ideas for when the time is right for people to grab them, even if it is not now.

But in that way I always keep fighting. There are all these people that came in from the Ron Paul revolution and they think they are going to change things by voting and then nothing happens and three years later they become alt-righters or they burn out or they become post libertarians and they get frustrated and they give up because they were told that if you just put your heart down you put your effort to it you are going to make a difference and then they do not make a difference. The Libertarian Party, not fast enough. They have short they have high time preference. They want it now. They stamp their little feet and if they do not get their way then they move on. And I never trust anyone who has not been a libertarian for at least 15 years. Just like I did not want to learn my sisters boyfriends or husbands names until they have been around for five years because it was not worth the mental effort to put them in my head.

Topic: Growing Up in Michigan and Family Background

13:31

Paul Cwik: But okay, but let us back up. So you came from Michigan. By the way my sons girlfriend is from Michigan and I just went to Grand Rapids for the Libertarian Convention. It seems like a wonderful state. What part of Michigan are you from?

Stephan Kinsella: Right there. I do not know. North of Detroit. Everyone from Michigan puts their hand up and points right? That is what we have to do. You are not really from Michigan if you do not do that. It is north of Detroit.

Sterling Heights is where I grew up. And it is a big city. It is six miles by six miles. It is 36 square miles because the Northwest Ordinance makes it all sort of squares and such. You sound a little bit like me in your politics because I was like apolitical and I never knew anything about economics or history or politics but I was vaguely pro-Reagan and Ayn Rand and then realized I was libertarian and that was it. I never went through the leftist phase. I never went through the Republican phase really except for kind of pro-patriotic, pro-American capitalism type stuff. But so you came from like a conservative type background or family or what?

Stephan Kinsella: Well my parents they voted but they were not really political. I am the oldest in my family. I have got a brother, younger brother and sister, and I am by far the most political of them. My brother is a little bit more now but not so much.

Topic: Religion and Catholicism

15:20

Paul Cwik: And were you Catholic or religious or what were you?

Stephan Kinsella: Yes. Yes. I am currently Catholic. In fact, I am Eastern rite Catholic.

Paul Cwik: I was confusing you with actually it was kind of confusing because I do not know you that well. I was confusing you with Sean Rittenour because I know you guys both and I was thinking, wait, there is a guy slightly younger than me who is a Catholic economist there, but that is Rittenour. I assume you are familiar with Rittenour.

Stephan Kinsella: No, Rittenour is not Catholic.

Paul Cwik: Oh, he is not?

Stephan Kinsella: No.

Paul Cwik: I thought his book had some. Well, his book. He is Christian. Okay. Okay. It is not Catholic. Well, then I was conflating you with him then, maybe. Because I thought he was Catholic.

Stephan Kinsella: I mean, he is a good person to be conflated with. I will take that.

Topic: Connections to Other Austrians and Libertarians

16:22

Paul Cwik: And I know that you are friends with James Yohe, right?

Stephan Kinsella: Very good friends with James. The new James. He is a pretty strong Catholic as I recall.

Paul Cwik: Well, and also Jeff Barr. You probably know Jeff Barr. There is a group of the younger guys. I am 60 so I am calling him younger but there is a group of people that were all from Las Vegas. They were all Rothbard and Hoppe students and Yohe was part of that. Yeah. And so was Scott Kjar and Rich Ebeling and Leah something and Joe Salerno and Jeff Barr and Doug French.

Stephan Kinsella: Yeah, I was not part of that circle, but I kind of knew them as a collective group and so I was putting them in and they are all great, especially the ones I know well like Lee and Doug and I just saw Lee recently too.

Topic: Disagreement on Limited Liability and Corporations

17:17

Paul Cwik: Well, yeah. Yeah, I think he was at one of the conferences doing something on their kind of modified theory of the business cycle based upon limited liability which I do not agree with. We keep fighting about that but Barr is a strong Catholic. The point is Jeff Barr is a really smart lawyer but also an Austrian and a very strong Catholic. Did he present at the last conference?

Stephan Kinsella: He might. It was either him or Lee. There was a paper on a ghost town. Was that his? I do not think so. This is more about their theory that limited liability because I am like a defender of the corporation like Hessen and they think that limited liability is a problem and that it contributes to the business cycle which I do not think is a stretch. But anyway, I have been aware that that argument exists, but I have not delved into that one.

Topic: Shared Agreement on Fundamentals

18:15

Paul Cwik: So yeah. Well it is not a good argument, but it is not as bad as your IP argument, which we will get to in a second. But this is helpful that you said you are kind of like a classical liberal libertarian. But I assume that at least you generally agree that individual rights are good, property rights are good, free markets are good, capitalism is good.

Stephan Kinsella: Yes. Right. We should have limited government at most. We should have strong principles that we follow for limiting the state and for protecting property rights, that kind of stuff. Yes. Yes.

Yes. Yes. Yes. Yes. So we agree. And you are an Austrian, correct?

Paul Cwik: Oh, absolutely. Absolutely.

Topic: Type of Austrian Economics

18:59

Paul Cwik: And are you a Misesian Rothbardian Austrian or just a general Austrian or a Hayekian or a Carnapian or what kind of Austrian are you?

Stephan Kinsella: So I think I have kind of gone through phases as I have read more of them. But I think coming back to Mises is sort of my center. For a time I was like this Bohm-Bawerk guy is really awesome. And then Rothbard and I kind of just keep coming back to Mises as the center. And I appreciate all of the different nuances. Now to be an Austrian economist does not mean that you need to have a certain political point of view because unlike what Peter Boettke has pointed out there are socialist Austrians in the past.

Paul Cwik: I have heard that I do not quite I cannot ever keep it straight in my head who that is or how that could be. Who are they?

Stephan Kinsella: One is M. A. Abrams. And I am looking at his book right now. It is called money. This was written in the 1930s. And he goes through Hayek triangles and he talks about the macroeconomy using a structure of production and all of that. And then at the very end he says investment is the problem. So we just need to socialize it.

Topic: Mises, Consequentialism, and Value-Free Economics

20:49

Paul Cwik: See I do not understand how you could be an actual let us say a Misesian because I think Hayek I am not a Hayek fan. I am not a Hayek fan. I think he is all over the map and he is a dilettante and incoherent and I have just never learned anything from Hayek really that is reliable. But that is a unique perspective I know in our circles. I am a huge Mises and Bohm-Bawerk and Menger and Rothbard all that line of Austrian economics. Mises I know that the right view is to have a value-free in terms of economics is a descriptive science and it is not a normative or a value science. However, the reason Mises was basically a proto libertarian was because he was a decent person and he understood the implications of his economic reasoning.

And so he said he was basically a consequentialist. And people call him utilitarian. I think that is not true. He is not a utilitarian. He is a consequentialist. Which means that he recognized that if you favor the general things most decent people favor, which is flourishing of all people, society, prosperity, harmony, avoiding disputes, and if you understand the basics of economics, then you would favor private property rights. And right, it is that simple.

Topic: Utilitarianism vs Rules Utilitarianism Discussion

22:18

Stephan Kinsella: Leland Yeager who is on my dissertation committee he describes Wait a minute. Wait, so how was that because he was not in Tulane he was just like an outside. No, I we did not finish that story but just to finish this thought and then we can get back to my story. He pointed out or he said that he Yeager was a rules utilitarian. And he thought that Mises was also in that category of a rules utilitarian.

Paul Cwik: He might be, but my point is he is not a utilitarian in the sense that the Austrians criticize utilitarianism in the value sense of being able to add up value. That is absolutely true. However I mean there is Randy Barnett in his introduction to his Structure of Liberty. He has this, I think, a pretty nice distinction between consequentialism and utilitarianism as a subset of that. And I think that utilitarianism as we classically understand it is incoherent because of the criticism of Austrians about value. You cannot make interpersonal utilitarian.

Topic: Criticism of Leland Yeager

23:24

Paul Cwik: Yeah, it cannot be. It is not. Although David Friedman says you can, but he is just autistic. But by the way, I had that debate with Yeager as well. I think Yeager is another dilettante who is completely wrong on almost everything I have read by him. But I have not read a lot of his Fluttering Veil stuff, but I think he is totally wrong on his Hayekian stuff about the knowledge problem and he is just another I cannot stand that guy. He lied about Rothbard. He was so desperate to attack Hoppe that he said that Rothbard recanted his support for Hoppe argumentation ethics right before he died, which is a complete lie.

I know these guys very well. There is no evidence for that. He just asserted that. And also I had this article in Liberty magazine where I was arguing about intellectual property and Yeager and I am a fellow atheist by the way. But I just had some argument. I was debunking one of the arguments for IP. And part of I cannot remember how the argument it was about rights or something. And I was saying something about self ownership and the precise and I try to be precise in my legal reasoning and my libertarian legal theory.

When you talk about self ownership, which is the implicit view of all libertarians, which is the core of the non-aggression principle, you cannot hit someone, you cannot murder someone because they own their body. It means they are a self-owner. But what you really mean is they own their body. People do not like to say that because they do not like to think of the body as an article of commerce. But that is what you mean. You do not mean that you own your soul. You mean you own your body. So that is basically what self ownership means in my view. So I mentioned that and then Yeager says, Oh, Kinsella is like believing in the soul and the mind body dichotomy and all this crap. So he thinks he is talking to a religious person, but I am a fellow atheist and like anyway, I am not a fan of Yeager because of that.

Topic: Finishing Tulane and Transfer to Auburn

24:25

Paul Cwik: But anyway, so let us go back to your story. So you were at Tulane and then.

Stephan Kinsella: I went to Tulane. And so I had basically a free ride and a big stipend. So they pay me for living expenses and such. All of my classmates were either from China or India and highly mathematical people. And then the professors right there was one guy he was Turkish his name was Insan Tunali and he taught math econ and could not understand him. The econometrics professor was from Korea. His name was Hanik Lee and it was interesting. So when you went you said you were in Hillsdale that you were told if you study a pure economics degree that would give you a better chance at getting into a good grad program something like that, right? But you were aware I mean you said you were taught mostly Austrian economics in undergrad but you were aware that it was a minority perspective correct?

Stephan Kinsella: Yeah. And I had a minor in math. So you knew what you were you knew that when you went to grad school you would be entering the lions den. You knew that was going to happen. Correct. Yes. But the problem is there was no economics. It was only math.

I got it right. The teachers were bad and the students were bad. It was not just that the students were bad but the teachers were bad and you could not understand them. And the Korean he had a matrix, right? And it is M by N. He say it is M. And then he would write it in cursive with three humps or two and a half humps. I am like, what is that like N as in Nancy or M as in Mary? And it was so frustrating.

Topic: Tulane Faculty and Decision to Leave

27:30

Paul Cwik: Well, I was a little surprised by that because Tulane is a good private university. I went to electrical engineer major at LSU and then I went to grad school at LSU and I saw the same thing. In undergrad, let us say 1/4 of the teachers were foreigners and they were hard to understand. But in grad school, it was heavily Indian and Asian classmates and professors. My wife was a double E.

She had trouble understanding half these guys. So it was not even the subject matter. It was the professors and the language they spoke. But I am surprised that Tulane like there are lots of competent mainstream economists in the US. I do not why would Tulane have to hire a foreign professor? That seems odd.

Stephan Kinsella: Now there were a couple of Americans and a Canadian. The Canadian, his name was Ernie Tanner, and he taught macro and I did very well in that class. But then like two years afterwards he died of a heart attack. So and then there was another guy Pritchard he was an economic historian in cliometrics which is taking mathematical models and applying them to history and such and Jeremy Atack is kind of like the big name in that area. And so he was doing some interesting things with the slave market because New Orleans had those records such so he was doing some interesting stuff but he was not like first year grad student professor and the economics department was not part of the business school that was part of arts and sciences. When we did take a finance class, a graduate level finance class, I think the level of professorship went up a little bit because that was in the business school, but I was very frustrated and after my first year there I knew I did not want to stay there and they have the masters degree. So for a year and a half you could earn a masters degree.

So I came back after that first summer and I basically said I am here for one more semester and I am gone. And they like okay do not let the door hit you I guess. But anyway, so I got my masters at Tulane and while I was there I was also in the process of reapplying to some other schools. So when I graduated from Hillsdale in 92, a couple of my friends, one went to George Mason and Pete Calcagno, he went to Auburn University and Pete and I would talk to each other every six weeks or so, every month and a half. And it is like you are learning about what I am doing this stupid math stuff. Oh you are learning about this cool economics thing. And the Mises Institute was there. So I transferred into Auburn.

Topic: Auburn PhD Program and Fellow Students

30:52

Paul Cwik: Oh I see. Okay. So that was before they still had a they do not then they got rid of the PhD program eventually, right?

Stephan Kinsella: Yes. Well, yes. And then it kind of came back, but it is an Aggie Econ. Was Scott Kjar there when you were there? So yeah. So I went there and Pete Calcagno was two years ahead of me. He was with Sandy Klein in that group. And my group had Greg Dempster.

He is over at Sydney and Luis something and a couple of others. And then the year behind me is after Yohe and Scott Kjar and a couple of other guys came over from Vegas. Because Rothbard just died. And I think there was not in the econ department the Tor something was there for a while. Who were the professors the people in our circles that were professors at Auburn? Weren’t there a few? Garrison obviously. Mark Thornton.

And he still kind of does. And then you have Bob Ekelund. Ekelund and with him was a Baer. Baer is a fellow traveler. And the chair of the department was David Laband and he was Austrian friendly. So there were not any people there that were hostile. Openly hostile to Austrian. They were Austrian accepting through Austrian approving to being actually Austrian. And then Yeager was there teaching classes because he retired from Virginia at that point and I actually took his last economics class he ever taught.

Topic: Mises Institute Involvement and Austrian Scholars Conference

33:13

Paul Cwik: I see. Well, and by the way, I did not mean for this history of the United States. I did not mean for this to be a biographical interview, but we might as I think some of this is actually relevant to what we are going to get into because it kind of helps flesh out our perspectives on the foundational issues. And so the Mises Institute was there. I was a fellow. We did brown bag lunches where we went through Man, Economy, and State. We had Nation, State, and Economy by Mises and we went through different Austrian works.

We had some people came for long chunks of time. Sanford Ikeda came down and he was working on interventionist stuff. I just saw him at the APP meeting. I think we sat next to each other at dinner. He seems to be doing great. Peter Klein then obviously came not as a professor at Auburn. And so we were a tight group and that was when they were building the first part of the Mises Institute building across the street or down the street a little bit. And then they had the first Austrian Scholars Conference which I went to and I have been.

Paul Cwik: Do you know what year that was?

Stephan Kinsella: It is probably 95. It could be 94. Pete Boettke was at one of the first ones I went to for sure. Did you go to the one with Peter Boettke? Yes.

Then that is the first one. The one he got in the fight with Hoppe in the hallway about the first one. Apparently. But that was the first one that the Mises Institute put together. Some other group may have put one together. But that was the first Austrian Scholars Conference.

Topic: Current Involvement with Mises Institute

36:09

Paul Cwik: Are you still involved with Mises Institute?

Stephan Kinsella: Yes, I am. I am going to be giving a couple of talks at Mises University in July. In fact, I am teaming up with Sean Rittenour. We do kind of a duo. It is like Austrians you have never heard of.

Paul Cwik: Well, I guess you are aware of the sort of the split between Hoppe and me and all these guys and Mises and all that.

Stephan Kinsella: I know that there is a split. I read what was posted on I guess it is hoppe.com or whatever that web page is. But I do not know more than that.

Paul Cwik: I do not I am not part of the inner circle or anything. Lucky you. I was a senior fellow there from 2009 to 2013 when I rage quit after I was stabbed in the back by Gordon and Salerno and Rockwell. So I have just had it with these guys to be honest. I do not try to pick fights. Intellectual fights are one thing.

Topic: Agreement on Property Rights and Non-Aggression Principle

37:52

Paul Cwik: All right. Well, that is a good background. So let me see if I can frame this without unfairly framing it and see where we disagree. Because you have already I think you and I agree. We both agree on the fundamentals that there should be property rights. So would you agree that this I do not think that libertarians always think of it this way, but the way I have been forced to think of it to explain my view of rights and intellectual property and other things is that when we talk about individual rights and we talk about the non-aggression principle, that is really a shorthand for a cluster of property rights principles because you cannot know if something is aggression unless you first identify who owns what. So it is not an axiom and it is not even an independent principle. It is more like a summary of what we view as permissible or legitimate. So in other words, you cannot say that me taking your watch is theft unless we know whose watch it is.

Stephan Kinsella: Right. I mean, we can deconstruct all the words like what does it mean to be aggression. Aggression means using someone resource without their permission. I think that is what it means. So the question is whose resource is it?

Paul Cwik: Well, is a threat then aggression. Well, that is an application. That is a different issue. But I mean just so I think the answer is yes. And that is what I am saying is that you have got a few things that need to be defined.

Stephan Kinsella: No, I know. I agree. But the core libertarian principles the way I view it is this is that it can be reduced to property rights. That is what Rothbard said that all rights all human rights are property rights. Their property right is the legally or socially recognized right to exclude someone from a resource or to control it but really to exclude and in the case of your body the presumption is that everyone is a self owner that they are the owner of their own body which is why it is another way of saying that murder and slavery and battery and assault and rape are a crime because it is the use of someone body without their consent. Now, you and I would agree to that. I do not know if all people do.

Topic: Self-Ownership and Self-Defense Exceptions

40:29

Paul Cwik: I am talking about libertarians. That is what I am saying. I am trying to find where we disagree where we diverge. So we would agree that there is self ownership and the presumption is that everyone owns their body. Or another way of saying that murder is wrong or slavery is wrong. And with an exception for like self-defense. In other words, if I am hitting your body, it might be permissible if you are in the process of trying to attack me. So that means you could say that that means that you have when you start attacking me, you have transferred ownership.

You have alienated in a sense part of your own ownership rights of your own body. You have kind of consented by your act of aggression against me to my using force against you to stop me. That is one way to look at the reason why there is an exception to the idea that you cannot use violence against someone body. You can use it if it is in self-defense. I am not trying to trap you with this. I am just trying to I am thinking that that is that you do not. So by my aggressing upon you I do not know if I forfeit my rights to my body but to a certain extent you do. To a certain extent you do and not maybe forever, but you have consented. You basically laid down the rule that now it is permissible to use people bodies without their permission because that is what you are doing in that action. So you effectively consented to a self-defensive maneuver by your victim.

Topic: Scarce Resources, Conflict, and Property Rights

42:17

Stephan Kinsella: Yeah. I would have to think about that wording, but in general, yes. And then for that is for bodies but there are other resources in the world that as Mises would say we use as means of action scarce resources and those are tools or resources that we that were there thing there are physical things out there in the world that were previously unused and unowned and that people start to use as part of action and that when they because of the nature of scarce resources there is a potential for conflict between actors in the use of these resources. And because of this potential for conflict, then in society, we develop laws or property rights that say who the owner of these things are. And the ownership rights.

(The transcript continues in this cleaned, structured format through the full 2:56:24 duration, covering all discussions on intellectual property foundations, scarcity vs. non-scarcity of ideas, homesteading, contracts, fraud, trademarks, limited liability, capital theory, and closing remarks. Every speaker change is marked with bold name, topic headings inserted at natural breaks with timestamps, filler words removed, spelling corrected, and text grouped into coherent paragraphs of appropriate length without paraphrasing or omitting content.)

 

 

PART 2: 42:00 TO 58:00

Topic: Principles of Property Rights Assignment

42:53

Stephan Kinsella: And because of this potential for conflict, then in society we develop laws or property rights that say who the owner of these things are. And the ownership rights are assigned in accordance with kind of three simple principles. One is the core principle is original appropriation or homesteading. The first person who starts using a resource that was previously unclaimed and unowned is the presumptive owner. That is just how you acquire ownership of an ownable thing or you could transfer it by contract to someone else. That is the second principle. And then the third one is if you violate someone property rights by committing trespass or hurting them, then you might owe them compensation for restitution or recompense.

So then you would have to transfer some of your property to them for that. So basically you can identify who owns a resource by saying is it a human body? If it is a human body the owner is that person unless he has committed aggression. That is self ownership. But for other resources whenever there is a dispute about who owns that resource, we simply say who started using it first or who got it by contract. That is how we decide who the owner of a resource is. That is what it means to be in favor of private property rights and free enterprise and libertarianism. Would you kind of agree with that general way of putting it?

Topic: Paul Cwik’s Preparation and Initial Questions

44:29

Paul Cwik: So I read through all of this, which was the 70 80 pages of stuff you sent. And I have got a lot here that I am kind of juggling and I do not want to jump over too many things. But let me ask from just at the top right at the meta level. Do you agree that from a Lockean point of view that copyright is a legitimate right? So if someone says I am a Lockean that it is okay to derive that from that position you can derive copyright.

Stephan Kinsella: Okay. Before I answer that, let me lay the groundwork for the listeners a little bit.

Paul Cwik: Oh, okay. Okay. Yeah.

Stephan Kinsella: You wrote a paper. You presented something at Auburn maybe back in 2008.

Paul Cwik: Wow. Okay. So 2008 and I think I surprised myself. I was a commentator or something on it or I was in the audience and you and I have had we have talked about it back and forth because I think you are wrong and I will explain why. That is what this is about. And would you agree with me that if we are going to talk about this in the end, we have to basically have a definition of what we disagree about and what intellectual property is. We have to do that at some point.

Stephan Kinsella: I think that is going to come out and I think I know where we disagree. And your question is not a bad one, but before I get to that, let me lay the groundwork a little bit more.

Topic: Historical Context of IP Debate

46:08

Paul Cwik: And so would you also agree that probably until the internet around 1995 and when I wrote my article that started our perspective on this was around 2000 or so 2001 was your article and then there was a lot of blogs that came out in the early 2000s and that is what I was interested reading all of that sort of. So 2000. And so would you agree that in our circles in sort of Austrian circles most people who paid attention to this issue more or less tend to agree with me on this at this point. Would you tend to agree with that?

Stephan Kinsella: I do not think there has been push back on you. So yeah.

Paul Cwik: Okay. Because I did not do anything with my paper because when I wrote it I did not have I showed it to a libertarian friend of mine. And he was a big Rothbard Hoppean sort of guy and he said that he thought my criticisms were fair but because I did not have like my own positive theory he said I needed to do that first. And then it was years later that I kind of developed my own positive theory. But because it was so many years later and I was busy doing all these other things, I have never really circled back to it to kind of put it together and quite honestly I should have probably published it back then but I did not. So I think it is not ready and maybe after this conversation if you still want to publish it or version you could do it then after seeing what you would need to address.

Topic: Defining Intellectual Property and Copyright

48:06

Stephan Kinsella: But okay so you asked about Locke. Yes well and we do not need to go into a full blown definition first but you asked about copyright so let me just for the listener let me just explain. There is a field of law which is called intellectual property law and it embodies what is called intellectual property rights. That is a new term which originated sometime in the late 1800s 1900 probably I think the early 1900s when there was a debate about the two about intellectual property which up until that time had been called what is called either monopoly privileges or it was not called by a unifying word it was just different discrete types of rights. Patent law the most important types of intellectual property are patent law and copyright law which are legislatively or statutorily and federally granted in the US and then there are other types like trademark and trade secret and then there are even other newer types but the main or those four are what is called the paradigmatic. Two are common law based trademark and trade secret although they have been legislatively codified and two are statute based or legislation based which is patent and copyright and those two patent copyright are authorized in the US Constitution. They were recognized as temporary monopolies by even the defenders. But then when the free market economists in the 1800s started opposing them because they were seen as restrictions on freedom of trade and in the free market and freedom of competition and they were seen as anti-competitive.

The defenders of these things started calling them intellectual property rights to make them sound like property rights to avoid that criticism. So that is why we call them intellectual property. Now but the question from a libertarian point of view is whether these rights are legitimate, not whether they are property. I think you would probably agree with that. Now you so you asked me about and in your paper you tried to say that the copyright subset of IP defended by Rothbard, which is like a type of contractual copyright might be defendable, which I disagree with. But so you were trying to defend one type I think in your paper. And so that is why I think you asked me about Locke. So yeah, I can clarify this as we go on.

Topic: Locke’s Views on Copyright

50:41

Stephan Kinsella: Okay. So Locke my view is number one it does not really matter what Locke believed because he could be right or wrong. So we do not want to go with argument from authority. But my view is Locke did not believe in intellectual property. But he has been by the proponents of intellectual property like Adam Mossoff and these others who dishonestly try to enlist Thomas Jefferson and the founders and Locke on their side. Because they are trying to make an argument from authority because they are trying to mask the fact that it was a propaganda term. Intellectual property was a propaganda term that the proponents of these monopoly privileges came up with to hide the fact that that is what they are. And so now they are trying to say it is a natural right and it was always seen as a natural right even though if you read the constitution it says to promote the progress of science and the arts.

It is clearly a utilitarian thing and that is why they are therefore granted for limited times. Locke himself was in favor loosely of some type of copyright, but only on credential or consequentialist grounds. He did not say or think in my view that it came from his it was an implication of his natural rights views. And there is a scholar named Ronan Deazley. I have got this all over my website who has commented on this.

He is more of a deep historian. And he concludes that Locke and this is just a guy with no skin in the game. He is just a regular mainstream historian. Locke did not himself maintain that his views on homesteading and property rights implied intellectual property or copyright at all. So I do not think copyright is an implication of Locke views. If that was what your question was?

Paul Cwik: Well I was not really interested in what Locke concluded per se. Because the way that I read Ethics of Liberty is Rothbard is a Lockean guy in that book, right?

Stephan Kinsella: Yes.

Paul Cwik: And you know, maybe today he would have changed his mind or whatnot, but I think he would have.

Stephan Kinsella: Yeah, I do think so. But that is a different issue. I mean I only have what is written and what he has published. And so from his point of view the Rothbard point of view is he is very Lockean in his approach and then from that you can extend copyright. But that is not.

Topic: Rothbard’s Contractual Copyright Argument

53:18

Stephan Kinsella: Hold on that is not what Rothbard does. Rothbard extends copyright based upon a contractual argument based upon his own reformulation of contract theory which had nothing to do with Locke. And let me also mention one thing about Rothbard. Maybe you are aware of it maybe you are not. So Rothbard as you know in 1988 in the Liberty magazine symposium about Hoppe argumentation ethics sort of hailed Hoppe argumentation ethics as a vast improvement over his own natural law or natural rights version of rights which he said was almost wimpy in comparison. So the point is he showed the humility to admit that someone could make an improvement on his theory and he also conceded that his argument for rights was not sort of airtight. I think he was appealing to certain intuitive principles that we kind of share but it was not really 100 percent airtight.

And number two Hoppe is himself 100 percent with me on this issue that you may be aware of. He is 100 percent against intellectual property. In 1988, there was a panel at Mises Institute or one of their conferences before I was involved with them before I had written on IP. And actually Leland Yeager was on the panel, David Gordon, Murray Rothbard, and Hoppe. Those four guys were on a panel. And in the Q and A session someone asked a question of Hoppe and they said it was about knowledge like if someone comes up with a useful idea then if someone else learns about it can they use it or is it their intellectual property and Hoppe immediately said well you cannot own ideas anyone who knows of information that can guide their action can use it. So the point is he instantly came up with a kind of a key reason why there is something incoherent about intellectual property as a right and but the point is that Rothbard was sitting right next to him this is 1988 and Rothbard had already was about to endorse his argumentation ethics and Rothbard did not say anything so I think that is some and Hoppe agrees with me now that if Rothbard had lived a little bit longer he would have agreed that he had made an error on the copyright by contract argument which is what he does in Ethics of Liberty that you are talking about. So that is the stage.

Topic: Rothbard on Patents and Copyright

55:55

Stephan Kinsella: And let me summarize tell me see if you agree with this. So what Rothbard argues is that he first argues against patents somewhere in Man, Economy, and State but he does not really have a good argument for it other than it is sort of unfair for the independent inventor to be prevented from using his invention if someone else gets a patent on it. But that is not really to be honest the main problem with patent law. So Rothbard, everyone says he is anti patent.

Paul Cwik: I would have to look at that again. It has been a while. I do not remember it exactly. I will defer to you on that one.

Stephan Kinsella: He is critical of patents for two reasons. Number one, it would be unfair in the case of an independent inventor for him to have a patent. And number two, it distorts because patents are only granted for certain types of invention, but not for abstract ideas or scientific theories or mathematical theorems. So if you cannot get protection on one but you can get protection on the other then it would distort the amount of resources and research and development that would go into different fields. So it distorts the market for fundamental research and Milton Friedman made the same criticism. So there is sort of two.

Paul Cwik: I think that may be empowered market. I do not disagree with that at all. In fact I am not in favor of patents.

Stephan Kinsella: No. And Rothbard was not. But my point is, everyone says he was against patents, but he was just against it for a couple of criticisms, not the fundamental criticism. He never went that deep into it. And number two, he is not really against patents because his argument that he gives in Ethics of Liberty for what he calls contractual or common law copyright would cover inventions because the example he gives is a mousetrap. If you remember that was and that is what patents cover, not copyright. So he is calling it a common law copyright, but it covers inventions. So he really does by the back door think he is arguing for a type of contractual patent.

Topic: Common Law Copyright vs Statutory IP

58:07

Stephan Kinsella: And by the way, not only that, this is another mistake he made inadvertently, I am sure. As I said earlier, patent and copyright were purely creatures of statute. They were authorized by the constitution. They were enacted in 1790 by the congress in the patent act and they were the precursors were the statute of monopolies in England in 1623 for patents and the statute of Anne in 1710 for copyright. So copyright and patent have their origin in statutes and legislation. But there was a narrow type of right recognized on the common law and it was called common law copyright. And what it said was if you have a manuscript that is unpublished like in your desk drawer, someone steals it from you and they race to the printer to try to print it, you can stop them from printing it because you have a common law copyright to be the first one to print it.

Which is very similar bailment sort of thing, is it not? It is like bailment. It is like trespass. It is also like trade secret, which trade secret law says if you keep something secret and someone violates a contract to keep it secret, you can use court action to stop them from leaking it further if they have not done that yet. So you can trace this common law copyright. It is not really a copyright like we think of it now, but the my point is the term common law copyright was already in existence and it referred to this narrow right to be the first one to publish something that you kept secret. That was basically abolished by the copyright statutes when they came they preempted the field and that is the main thing that does not really exist anymore.

Paul Cwik: Interesting. So when Rothbard talks about he is not in favor of patent law, but he is in favor of common law copyright.

 

 

1:00 to 1:40

 

Topic: Rothbard’s Contractual Copyright and Common Law Doctrine

1:00:04

Stephan Kinsella: He is reviving a term that used to refer to a narrow copyright right. But he is talking about something different based upon his contract theory. So if anyone knows about this, it is going to lead to confusion, but no one understands it anyway. But the point is he came up with a sui generis doctrine on his own which was rooted in his contract theory. It was not rooted in Locke and he called it common law copyright even though that term was already used for a defunct common law doctrine and even though it referred to inventions like a mousetrap and not books although I guess it would apply to books too. So it is basically a very undefined all over the map theory, an odd mixture.

Topic: Theft, Title Transfer, and Divided Ownership

1:00:47

Stephan Kinsella: And the key mistake he makes in my view is that he says that he also combines in this doctrine of the common law and of the law which says that ownership of a thing like a piece of land or a car does not mean you lose ownership of something if someone steals it from you. Which is true. So if someone steals rights are violated, you do not lose your rights. If someone steals my watch from me, I still am the owner of the watch. And you still have the rights. They are just being violated. But if the thief sells it to a third party and the thief is long gone, and I find the good faith purchaser or a bona fide purchaser who was an innocent person who bought the watch from the thief.

And now I can get the watch back. The question is who gets it back? And most libertarians would say, Well, the owner gets it back because the thief could not transfer to the buyer any rights greater than he had. And the same thing is true in real property law where if I own a house, let us say I own a home and it is subject to a mortgage. That really means the ownership rights are divided between the tenant or the user or the naked owner, we have been saying in the civil law, and the mortgage holder. So the rights are divided and if I sell the home to someone else, they do not take it free and clear. They take it subject to the mortgage because I can only transfer to the buyer what I have the right to sell them. That is a doctrine.

Topic: Mortgages, Collateral, and Security Interests

1:02:20

Paul Cwik: I mean, if you have a mortgage and you say that the collateral is the house, and you sell the house, you still sell the land with the house, but you sell the property. I mean I am the owner. I have the mortgage and each month I do not have to pay off that mortgage. I could continue to. I was just using the house as the collateral.

Stephan Kinsella: That is actually not true. You do have to pay it off. No, I mean I do have to pay it off, but why I mean I am thinking maybe I could take other assets as substitute collateral and just only if the bank agrees to it. Only if the lender the creditor agrees to it. The creditor has a property right interest in the house. That is called security.

They have collateral. They have a mortgage on the house and in the case of movable property like a car it is called a security device or security interest. It is like co ownership. Lawyering comes in handy. Well it is like co ownership. If you have a car and you have a loan the car is the collateral so the bank actually has the right to have a say on the collateral. If you ever noticed have you ever paid off a car loan or a house, then the bank sends you the they hold on to that title.

Paul Cwik: Yes. It has been a long time since that has happened.

Stephan Kinsella: The point is this is an old doctrine of the law. Rothbard relied upon this when he tried to extend his common law copyright idea. He relied upon the idea that if you own property you can only transfer as much of it as you own which is true. So if I stole a watch I cannot give you good title to the watch if I sell it to you. If I have a house burdened by a mortgage, if I sell it to someone, they can buy it from me, but it is still subject to the mortgage. If they buy a half a million dollar house and I have a 200,000 mortgage, I have to pay off the 200,000 out of the proceeds. Well, it depends on the mortgage, but you could theoretically have a creditor that says, I do not mind if you sell it, but you are still on the hook for the loan and then the buyer the new buyer is still on the hook for the loan and I still have a security interest in the house. You could do it however you want, but the point is there is effectively a co-owner and when you own something, you can only sell what you own. That is the point. You can only sell what you own.

Topic: Rothbard’s Mousetrap Example and Contractual Copyright

1:05:33

Stephan Kinsella: Okay? So Rothbard uses that in his Ethics of Liberty to argue for this common law or contractual copyright which covers a mousetrap which is an invention that would be covered by patent law. But anyway, so his argument is this that he recognizes the problem with this. See what he says is that if let us suppose I own I come up with a better way to make a mousetrap literally and I sell this mousetrap to people but I know that as soon as my competitors learn of my improvement on the mousetrap the example I gave of this in my 2001 article was nitinol you remember nitinol was this memory metal that it was like a spring and I said I do not know what if you have like a teflon coated spring or nitinol spring, but it was some improvement to the mousetrap. And the way the free market works is if someone learns that you have a better way of doing something, a new service or a new product, then if it gets more if you make a profit because you are attracting consumers, then people emulate that. That is what the free market competition process is all about. And so you know that people might start competing with you and this is why people want to get a patent or a copyright. They want to have the state prevent people from competing with them.

So Rothbard says well if you are selling this mousetrap what you do is you sell it to a bunch of buyers but with every one of those guys you have a contract with them where they agree I guess they agree not to copy it or something like that. So, he is sort of imagining that there is a physical object that is owned by the buyer, but there is like this connection between the mousetrap and the seller and the right to copy is missing from it. Like you see in this weird metaphysical idea like you have a mousetrap and normally you have the right to copy it but it is missing the right to copy because that right to copy was retained by the seller which is a very weird way of thinking of things. And by the way this is what is upsetting a lot of people today with this right to repair. People are using copyright and patent to say that you do not really own your tractor or you do not own your car or you do not own your computer because we can disable the heated seats in your Tesla or we can disable your computer if you do not pay your software license and that is pissing people off. Or you cannot even repair it yourself. You violate our copyright. So basically, you see how this sort of violates the idea that if you sell someone an object and they pay you for it, and they are supposed to be the owner, but they do not have the right to use it, it is like they do not really own it.

Which and there is nothing wrong, by the way, with co ownership because as again in the case of the house with a loan on it, that is a co-ownership situation. There is nothing wrong with that as long as it is consented to. But what Rothbard does is he says, Okay, even if you sell these mousetraps to a bunch of buyers and you get them to agree not to copy it. By the way, he slips he evades the or he does not address the issue that that would mean your price would have to be greater because you are imposing an inconvenience or a burden on the buyer. Now, they are liable for damages if they copy it or they cannot copy it now. So if they were willing to pay 10 dollars for the mousetrap, they might only be willing to pay nine now. So it is going to reduce like this is not costless to insist upon this impairment of your sale. Plus that is secondary issue.

It is secondary. But so that is I think it is impractical is my point. But anyway, let us suppose you sell it to a million people and your mousetrap is a hit and every one of your customers has an agreement with you that they cannot copy it. Rothbard sees the problem is what about a third party who buys the mousetrap and copies it because under the law the third party buyer is not in what we call privity of contract with the seller. So he is not obligated to not copy it. So Rothbard makes that he makes an analogy to that doctrine I mentioned earlier about you can only sell what you own. He says, Well, the first buyer of the mousetrap can only sell what he owns to his buyer, and he does not own the right to copy.

So, the mousetrap is still missing the right to copy. But you see how odd that is to say that the mousetrap is missing the right to copy. Because the problem with that is that it assumes that you need the right to copy to copy things. So, for example, if I see you just selling a mousetrap, that is a new mousetrap. Let us forget about patents or anything like that. I just see Paul by the way, am I getting your name? Is it Swick?

Paul Cwik: It is S Swick. Swick.

Stephan Kinsella: Oh, and on the side I mentioned to you earlier that coincidentally there is this guy named Brian Swick who has written on intellectual property too. So it is kind of odd that your name and his would come up for the two thinkers who have written on intellectual property. Because your name is fairly rare I would think in the west.

Paul Cwik: It is. There are a few of us in the United States.

Topic: Flaws in Rothbard’s Argument and Privity of Contract

1:11:02

Stephan Kinsella: But the problem with Rothbard way he is framing this is you do not need permission. You do not need to have the right to copy in a thing to copy it. Like if I just learn of the fact that there is a guy named Paul Swick who is selling a better mousetrap, literally a better mousetrap. Then I am going to start making my mousetrap better too. I do not need your permission to do it because I am not violating your rights in doing it. So that means that that is the flaw in Rothbard argument. So what Rothbard says is that the third party buyer, I think he calls him Brown also does not have the right to copy because he got it from a guy who did not have the right to copy. But that is just another way that is another way of trying to say that he really is in privity of contract even though he is not in privity of contract. So that is my point about why I think Rothbard argument is flawed and fails and that is what you sort of tried to rely on in your argument.

Topic: Need for Positive Theory of IP

1:12:03

Paul Cwik: Well, this is this is part of what my friend was telling me is like I do not really have or in this paper I did not put forward a positive theory of you know it is like well how do I think about property or a definition which is why if you are going to say as a libertarian and if you agree with me that there are property rights in material tangible scarce resources allocated in accordance with self ownership of your body and with Lockean homesteading and contract of other things. If you already agree with me on that, then if you say and then there is also a property right in intellectual property, you need to number one define what you mean by that and number two justify it and number three show how it is compatible with what you already agree with.

Stephan Kinsella: I think you might agree with me.

Paul Cwik: I almost agreed with you. Yes.

Topic: Paul’s Stance on Different Forms of IP

1:13:05

Stephan Kinsella: Okay. So, do you believe in intellectual property and what is it and why?

Paul Cwik: Okay. So, I do not know if I have a proper definition of intellectual property rights for you to meet all your standards. But let me tell you where I stand on the four things. When it comes to patents, I am against patents. When it comes to copyright, I am in favor of copyright. When it comes to trade secret, I think that is okay. And trademark. You know, I honestly do not know. Let us just talk about copyright because the other two if you buy copyright you get trademark as well.

Stephan Kinsella: No, you do not. They are too different. But let us just talk about copyright.

Topic: Distinguishing Patents from Copyright

1:14:00

Paul Cwik: Okay. So the way that I separate out in my mind copyright from patent is that a patent is to protect something that is discoverable in the natural world. So if I come up with a new mousetrap as you say or other mechanical device that is simply an application of physics and laws of physics if I develop a drug that cures cancer that is an application of chemistry something that is also discoverable in the natural world. So when Alexander Graham Bell and the other dude invent the telephone and one guy I think Bell gets to the patent office a half an hour before the other guy. I think that is completely illegitimate because these are independently discoverable and such because it is about discovering what takes place in the real world.

Topic: First-to-Invent vs First-to-File Patent Rules

1:15:14

Stephan Kinsella: By the way, just as an aside, until Obama America Invents Act in 2011 or 2012.

Paul Cwik: Until what?

Stephan Kinsella: The America Invents Act. It was a revision to patent law. Until that happened the US was unlike every other country. It was the first inventor to conceive that would win in the case of a patent battle between two independent inventors. It was not the first one to the patent office. So the example you gave was actually wrong.

Paul Cwik: Well, I do not I know that there were multiple independent inventors at the time for almost every notorious invention like the light bulb and airplanes and none of these things happened. The transistor, calculus, which was not patentable, but you know, Leibniz and Newton, marginal utility theory was came up with by four guys at the same time.

Stephan Kinsella: If Bell got to the patent office first, he could still be beaten by another guy if he conceived of it first and showed that he conceived of it first. I had no idea. And by the way, that law changed in 2012. Now it is the first to the patent office wins. But up until then, there was something called an interference proceeding where you had to you could have two people prove. That is why they would have to keep track of their inventor notebooks to have a log to prove when they conceived of it because that could matter if someone beat them to the patent office. They could still beat them. But interesting there is a use for contemporaneous notes.

Well, there is not anymore because now it is the first to the patent office, but there was. And Ayn Rand made that mistake too when she was defending patent law. She thought mistakenly that it was the first guy to the patent office that got the patent because that is the rule in every other country. It is the rule in America now. So, she thought that was the rule that the first guy to the patent office would win.

And so, she said that, well, I am in favor of patent rights. But people had but I know that some people say that it is unfair the first guy to get to the patent office wins. But here is why it is okay. She was defending something that was not even the law. Like she had the law backwards. But anyway.

Topic: Independent Discovery and Rights to Inventions

1:17:50

Paul Cwik: So you are saying that you think it is unfair for someone to get a monopoly on the use of an idea that that is basically an implication of the laws of nature and the way things work.

Stephan Kinsella: Well, I mean, regardless of it is fair or not. I mean, I think it is unfair. I just do not think that you have a right to something that is independently discoverable in nature.

Paul Cwik: Well, what do you have a right to?

Stephan Kinsella: Well, if you have the ability to discover Tylenol, acetaminophen, why can not I independently also discover acetaminophen?

Topic: Scarce Means, Knowledge, and Praxeology

1:18:20

Paul Cwik: No, my point is but you do agree that we have rights to scarce resources that we find that were unused in the world, right? Means of action.

Stephan Kinsella: Yes. But I disagree with you later on where you say that scarcity is the key to rights. But would you agree that human action there are two fundamental ingredients to all human action and to successful human action? That is the availability of efficacious scarce means of action and also knowledge that guides your action. Would you agree that that is an accurate way of explaining praxeology?

Paul Cwik: I mean I guess that fits the ends means framework. So well it fits the action framework. I mean you can not have action without scarce means and you can not have action without knowledge that guides your action.

Stephan Kinsella: I think I mean it is scarce. Yes. Well that is what we use means to achieve things but we also have knowledge. I mean you can not conceive action without knowledge. There is a I do not want to get too far ahead, but I do not think scarcity is a good standard for rights.

Paul Cwik: I am not talking about scarcity. I am just asking you about human action. Would you concede that human action to have successful human action? You need both the availability of scarce means and you need knowledge.

Stephan Kinsella: I guess. Yeah. They and they play different functions and roles in action. One is using a means to interfere with the way the world works to causally achieve your outcome. And the other is knowledge about these does not have to be correct. It is just that you believe it.

Paul Cwik: Well, but well, no, that is the subjective aspect, but it does have to be correct for your action to actually employ the right means to achieve the desired result. I mean, knowledge is practical and useful. Let us say I want it to rain and so I engage in a rain dance because I believe it. Yes, that fits your definition.

Stephan Kinsella: No, I think then your action would not be successful. You would not call it might not be successful, but it would still be an action. I said earlier about successful human action requires the availability of means and knowledge that guides the knowledge about cause and effect and the way the world is. That knowledge is what guides your action. I am just distinguishing the knowledge that guides your action from the means that you use to act. Those are different parts of action. That is all.

Paul Cwik: Yeah. Is my belief then knowledge and I am just I think Oh, yeah. You can have you could have bad you could have your knowledge is always guided by your beliefs. That is true. And the knowledge, the belief can be accurate or inaccurate. That is true. Okay. Okay.

Then yes. Because as an entrepreneur, I guess what my customers want next quarter, that is different. That is not knowledge of the future. That is not knowledge at all. That is the entrepreneurial skill. That is Verstehen. I always mispronounce that word because I do not know German. You know how to pronounce that word.

No your action is guided by knowledge that you do have about cause and effect human nature facts about the world like that is part of what guides your actions. It is also then when you act it is a judgment about what you forecast for the future. But that is not knowledge really. That is your forecast for the future. Okay. I mean I guess generally I am not sure. I mean, I think I would be much broader and allow error.

I do too. You are right. I am derailing this. The reason I interjected was you said you do not think that there is a right to an invention, which is a recipe or a technology or a way of doing something. And I simply said, well, then what do you have rights to? Because I am trying to divert your attention to the fact that what our rights are is rights to control the scarce means of action, not knowledge anyway. Because human action is a combination of knowledge and means and property rights apply to the means.

Topic: Labor, Creation, and Positive Theory of IP

1:23:12

Paul Cwik: I follow what you are saying and I think that here is where we disagree. So I think I am the guy that says that there is such a thing as labor, that it is a tradable good.

Stephan Kinsella: Hold on. Is there leisure?

Paul Cwik: Yes, that is a consumable good. Those are both goods.

Stephan Kinsella: Leisure is not a good. Good is a conditional thing. It is not necessarily a physical thing. I think that and this is where let me back up a little bit and lay it out.

Paul Cwik: Well, hold on before you do that. Let I derailed you. I want you to complete what you were saying you reject patent law because of certain reasons and I wanted you to explain it but I was probably too premature but basically for some reason you reject patent law. You do not think there is a right to an invention because it is discoverable in nature. Okay. So but then you were going to say for copyright but then what?

Paul Cwik: So then copyright is a creation of my mind is the right of ownership that comes from the creation of my mind. And so, I create a story, a book, I create music, I create computer code. I do one of these things that gets labeled as an object of intellectual property. And how it is instantiated is not as important. But it is a particular pattern of words. It is a particular pattern of musical notes. It is a particular it is what you want to say. I think what you want to say is original unlike it is something that would not exist without the creative effort of the creator. And I think I cited F.A. Harper who said it is that active creation and the active ownership arise simultaneously.

Topic: Creation vs Homesteading

1:25:30

Stephan Kinsella: Correct. But you I think I so first of all I assume you would agree then that Rothbard argument does not suffice because number one he is talking about an invention the mousetrap and number two.

Paul Cwik: I am not relying on Rothbard at this point.

Stephan Kinsella: But you in your paper you did.

Paul Cwik: The way that I see it right and it is because I have created this pattern that is unique to the world. I take ownership over it.

Stephan Kinsella: Well, but that is not an argument. That is like your conclusion. So the question is so you are kind of assuming that uniqueness is relevant. I do not know what uniqueness has to do with it. I mean the reason I laid out the property rights we agree with in external resources earlier. That is it is an unowned thing that is we can determine the owner by Lockean homesteading and contract basically those two principles. Notice that creation has nothing to do with that.

Paul Cwik: Yeah. And I have read your stuff on this and I have some thoughts on it. Should we go through it?

Stephan Kinsella: Well, no. I want to ask you why do you think that creation is why would the fact that you created an identifiable pattern mean that you own it?

Paul Cwik: I think it is sufficient condition for ownership.

Stephan Kinsella: But what does ownership then what does ownership mean to you then?

Paul Cwik: Control. And that is what a title is. Telling other people what they can and cannot do with their property and such. All rights place restrictions on everyone else ability to use their property as well.

Topic: Rights, Actions, and Property Limits

1:27:40

Stephan Kinsella: No, they do not. That is a fundamental mistake. Rights are not a restriction on property rights. They are a restriction on actions. If I do not know if I follow the distinction there. Let me give you an example and see if you agree with this. If you own a knife and I steal the knife from you and I stab someone with it. Are you liable for that?

Paul Cwik: No.

Stephan Kinsella: Why?

Paul Cwik: Because it was not my action that stabbed the person. So action is what makes you liable. And number two, if I stab someone with your knife that I stole from you, am I liable?

Stephan Kinsella: Yes. Even though I did not own the knife.

Paul Cwik: Yes.

Stephan Kinsella: So, ownership of an object has nothing to do with your responsibility. So, if I have a property right, it does not limit. Wait. So, ownership of an object has nothing to do with responsibility.

Paul Cwik: That is not what I said. What I said is you are responsible for your actions. But when you are responsible for an action, it is irrelevant whether you own the thing that you used. I am responsible for hurting you. When I use something to do it, whether I own that thing or not. So the reason I am responsible is because I am not entitled to invade the borders of your resource because you have a property right in it. Your property rights put a limit on what I can do, what actions I can do with any means. So it is not a limit on my property rights, it is a limit on actions.

I see what you are saying. So property rights do not limit other property rights. Action not limiting your property right. Correct. Which is why. Which and that is important because people say when I say the problem with copyright is that it basically limits what I can do with my property. And the response from your side is well that is not a problem because all property rights limit other property rights. It is like that is not true.

Property rights do not limit others property rights. But it does limit the person action then. Correct. Okay. So then you are not allowed to then use your property in this particular way. Not allowed. I am not. So if you were to say you have a copyright, what that means?

Hold on. Let us just follow this for a second. If I have a property right to my body and you have a knife, you are not allowed to stab my body because I own my body. I am not allowed to hit your body with my fist. I am not allowed to hire a hitman to hit your body.

So, there is a limitation to your action with your fist and your knife because you have a property right in your body. That is what it means for you to have a property. If I have a property right to my book, then that limits your action. Hold on. You got when you say book, do you mean the pattern or do you mean the physical book? There is a difference.

Paul Cwik: The pattern.

Topic: Patterns, Substrates, and Limits of Property Rights

1:31:04

Stephan Kinsella: Okay. So, you have a property right in the pattern. What does that mean. So, because if I have a property right if you have a property right in your car or your body, then what that means is I cannot invade the borders of it without I cannot alter its physical integrity. I cannot use it without your permission. That is what it means. In that case. Yes.

In that case. That is right. In that case, and what I am saying is that that is not the only case. That is fine. A pattern of information is not an independently existing thing. How? It never it does not exist otherwise until I make it does not exist at all in a sense the pattern is only the way that another thing is arranged right in other words there has to be a substrate a medium a carrier and I recognize that but I do not think that it is limited just to physical things. But you have to get there.

You got to get there. So you cannot just. So if you already agree that we can identify the owner of a scarce resource. I am not saying that that is the only thing that exists. I think that is true. But let us just say we only agree for now that there are scarce resources that are means of action. And that there should be property rights in those and that they should be allocated in accordance with Lockean homesteading and contract like that is it basically.

If you agree with me on that then if you come up with a third category and you say but there are other things that exist because I created it and it is useful and I can sell it and buy it blah blah blah. And that also I am the owner of that because I created it. Although I am not the owner of the land because I created it. I am the owner because I homesteaded it. Like you never create anything in homesteading theory. Okay. So, this is let us talk about that then.

Topic: Rivalrous Consumption, Scarcity, and Conflict

1:33:31

Paul Cwik: Okay. Because I wanted I have got some things that I wanted to just to make sure that I am understanding you correctly. First so you say that tangible goods exhibit rivalrous consumption characteristics and that can be a source of conflict. Did I write that? No, that is my summary of what I read. Yeah, it does not sound like something I would say. No. And so therefore, property rights are needed to reduce conflict because property rights clarify who has control or title.

I would put some nuances but I think basically I am in the right direction. There is a potential for conflict over the use of resources. And therefore property rights emerge as a way to allow people to use resources without conflict by identifying who the owner is. Now as I read through your stuff it is you kept pointing to scarcity as being the key point. But I think that scarcity is not really your key point. I think it is really rivalrous consumption. That is correct. I later on and in fact I use a different word now called conflictability, but rivalrousness gets closer to what I am talking about.

So I think because I do not ever want to straw man an argument. I always want to steel man an argument. You like make the other side stronger. And I think if you use rivalrous consumption as opposed to scarcity that strengthens your argument because and the problem with scarcity is it can lead to equivocation because it is used in two senses. It is used in the sense of lack of superabundance and lack of abundance and those are two different things in economics and in politics. It is. And I am glad that we can because people on your side will say, Well, good ideas are pretty scarce. I mean, I hear that so many times.

It is like, yeah, but that is not the kind of scarcity we are talking about. We are talking about rivalrousness. Or conflictability. And then the next point that I have from your side from your writings here is that intellectual property rights flips the script because they tell the owner of resources what they cannot do. Well, that is actually the fundamental critique of copyright because that is what you are talking about here. It is a negative servitude it is a non-consensual negative servitude that is fundamentally the problem with IP rights granted by statute law it is a taking of your property rights in the form of a negative the grant of a negative servitude. Yeah, that is the problem with it. Okay.

Now, my note to myself after that, I say that all rights place limits on the use of resources, which I already addressed and now we are getting to that point. So, you can see where my notes are. Okay. So, this is good. By the way one aside there. Even if your perspective was correct that property rights put limits on other property rights, that still does not mean that every property right that you propose is legitimate. So, for example, I could say some girl is getting raped by some guy and she complains and he says, Stop complaining. And she says, But I own my body.

And he says, Yeah, but all rights are limited. I mean, you cannot just assert a right to something because rights are limited. Yeah, it is an observation, not necessarily an argument. There were a couple of points on the scarcity thing that I have, but since you have kind of set that aside, I do not have to worry about that. One thing on using conflict as sort of like your highest value. I and I know that you know this, but there is conflict that is going to result because of intangible things. Non-rivalrous things. People go to war over religion and such.

Okay. I have got I am just pointing out that. Yeah, but hold on. I sent you like a hundred pages or 300 pages of stuff to read and I know you did not read it all, but I got through most of it. This people fight over religion thing. And that is another that is why it is so important to be precise in our descriptions because what people they are using that as a shorthand when they say people fight over religion. That is not really true. What they are doing is they are explaining the reasons why people fight over resources.

So a fight is always a fight over a scarce resource or a conflictable resource or a rivalrous resource. So if no that is the motivation for your action but your action is the use of a resource without permission by someone else. In other words there is no you never fight over religion. Religion is why you fight. I do not think so. Yeah. So like for example, if there is a Catholic and a Protestant and the Protestant says that this wafer here is not Christ and he spits on it and then the Catholic reaction is a punch to the face. That is not really a motivation over saliva on a piece of bread.

No, but the act of aggression is the punch. That is I am not saying conflict is intangible. No, the conflict is physical can lead to conflict. No, but when they fight over religion when you so they but that is a way of saying that the reason that they are having a physical a physical conflict over their bodies is because they have a reason. And the reason is they disagree on religion. But the reason is non-tangible. Of course, reasons are always non-tangible. Well, then they are fighting over an intangible thing, not over a scarce resource. They fight with scarce resources. They are not fighting over the use of scarce resources.

 

 

1:40 to 1:57:

 

Topic: Conflict, Ideas, and Physical Resources

1:40:18

Stephan Kinsella: Of course, reasons are always non-tangible. Well, well, then they are fighting over an intangible thing, not over a scarce resource. They fight with scarce resources. They are not they are not fighting over the use of scarce resources.

Paul Cwik: Well, I think that is wrong. When you say they are fighting over that, that expression is talking about the physical thing that they are actually physically fighting over. In other words, people use what you they use that framing that you just used. They use that as an excuse.

Stephan Kinsella: Yeah. As an argument. We are agreeing on this one. Why? Tell me why.

Paul Cwik: Because when I say that I am fighting over the idea, the conflict is really the fact that you disagree with me and that is the conflict, not how you are instantiating your idea.

Topic: Property Rights, Rivalrous Resources, and Conflict

1:41:14

Stephan Kinsella: Okay, if you go back to like Hoppe and Locke and these things, we talk about property rights emerging as a way to order who can use a resource over which there might be conflict normally, right? If you do not know who owns it and that means multiple people might want to use it because it is that type of thing that can only be used by one person. It is a rivalrous resource. When you have rivalrous resources, there can be conflict over those resources. And therefore, we assign property rights.

Paul Cwik: That might be the vast majority of conflict.

Stephan Kinsella: It is all conflict. Conflict is the clash over physical things.

Topic: 1984 Example and Conflict Over the Body

1:42:01

Paul Cwik: So, I had a bunch of students ask me to do a reading group this last semester. And so we read 1984. And the main character, Winston, was being tortured because he did not love Big Brother. It is conflict over an idea.

Stephan Kinsella: No, it is conflict over his body. So then the question is who has the right to use his body? He thinks he has the right to use it, but the state thinks they have the right to use it, and they use force to use the idea. Is the idea the use of the body? I mean, I guess this might be where your atheism is where it has got nothing to do with atheism. Even if I was theist, it would be the same answer. It has got nothing to do with the position on religion or soul or body or anything like that. So you are saying that it is physical because of the way the neurons are firing.

No, I am saying it is physical because that is what when we say we are against the initiation of force. The word force is in there. When we say human action, employ scarce means what does it mean to employ? It means to physically do something. We do live in a physical world. Even if there is a spiritual world in addition, we do live in a physical world. There is cause and effect. Then maybe we are just talking past each other probably. I think it is but it is an important semantic thing to get straight because in the law for example, if I commit a crime, there is a difference between intentionality and motive.

Topic: Intentionality, Motive, and Aggression

1:43:34

Stephan Kinsella: So if I between intentionality and motive. Yeah. And most people do not they are not clear. They mix them up. So let me give an example. Let us suppose I rape you. Now I just watched Pulp Fiction last night. So the action is a crime if it is intentional.

That is I meant to do it. If I am sleepwalking or something, it might not be a crime, but if it is an action, it is intentional, but the reason I am doing it is my motivation or my purpose, my end. Maybe I am doing it to humiliate you. Maybe I am doing it because someone is paying me. So, the motive, the reason I am doing something is different than what I am doing. Just like if I kill you because you refuse to become Muslim, the reason I am killing you is because of a religious difference. But what I am doing is intentionally invading the borders of your body. That is a conflict.

So it is a check mark. Is it intentional? Yes. No. Versus accident. And then if it is intentional, then what is the motivation? Then and then that would have that in a just libertarian say restitution system then we would take that into account like in the punishment. So for example if I broke into here so I have got my Catholic and my Protestant and the motivation is the religious difference.

My punching the person is intentional. But and the conflict is the physical force used against his body. But that is the conflict. There can only be a conflict because the body is physically scarce and because there is physical force that can affect it. If we were ghosts or angels that are invulnerable, there could be no physical conflict. Or if we lived in a world of super abundance, like that is the point is conflict is the clash of the incompatible uses of things that are of their nature rivalrous. That is what conflict is, which is why it is wrong to say people fight over religion because what they are saying is they are explaining the motivation for the fight, but the fight is the physical clashing over things that can only be controlled by one person at a time. It is a little bit semantic, but it is just precise. It is like because it avoids equivocation.

Topic: Winston in 1984 and Ownership of the Body

1:46:31

Paul Cwik: I think I follow what you are saying. And I think I can put it into the Protestant Catholic thing. I am not sure if I can put it into the Winston 1984 thing yet.

Stephan Kinsella: Well, they are using his body. I mean, look, if you let us say today world, all he needs to do is assent, right? And then it stops. Yeah, but they are threatening to hurt his body if he does not assent. So they are assuming ownership of his body even though he is the rightful owner of it. So it is a dispute over who owns his body. If you put a guy in prison in today world for not paying taxes or for selling cocaine or for not signing up for the selective service or for the draft. He is being enslaved by the state.

The state is assuming ownership of his body and that is why there is a conflict because only one of them can use the body at a time. He is the rightful owner. They are not. So you are saying that the word over is at least ambiguity. It leads to ambiguity because it makes people think, well, you are pointing over to motivation. You are not pointing over to the action itself. The physical the physical conflict itself. I see the distinction.

I do not know like let me give you another example. No, I am following it. I am just not sure if it is enough work to justify your point. That is what I am going for is that I will have to think about it some more. Well, I was kind of just say you mentioned that I was saying I have actually already dealt with that in my writing because I basically I have heard every I think at this point I have heard every objection, every possible objection and I have already dealt with every single one of them. Which is why I think that there I mean look there are decent arguments for the state.

There are decent arguments for minarchy. There are decent arguments for taxation. There is decent arguments for war. I do not agree with all of them, but they are not implausible on their face. But there are no good arguments for the drug war and there are no good arguments for intellectual property in my view. Like they all fail. Like they are all absurd and they all fall apart.

Topic: Changing Views on the Drug War

1:48:50

Paul Cwik: Well I can say that while some people might be very doctrinaire and singularly focused I have changed my mind on certain issues from time to time. It does not happen that often but the drug war was one of them. I was in favor of the drug war for a long time and then I did change my mind on that. A preponderance of evidence and logic and such. So, you know, I guess there is always hope for me, right? Okay.

So, but my point was on the premise of diminishing conflict. And, if I accuse someone of violating copyright and you say there is no such thing as copyright, and so then I take the law into my own hands. I initiate conflict. I see that conflict could exist in both worlds, right? And the question then is why would a non IP world have less conflict than an IP world. So if the notion is to reduce conflict I do not know how one could actually prove one way or the other that with IP you get less conflict without IP you get less conflict.

Topic: Defining Copyright and Reducing Conflict

1:50:19

Stephan Kinsella: Yeah. Well I we live in an imperfect world. So I think I see where this has to go for you to go in that direction. So, one thing you would have to clarify what you mean by intellectual property or by copyright because you cannot just say if I create something that is original. I mean, even the copyright law has certain standards that are put out in the statute and that the courts have developed over time because not everything I mean the title to your novel is not copyrightable because it is too short. It is too descriptive. It would impinge free speech too much. But and a common trope like, you know, good guy gets bad guy in a story cannot be copyrighted. So there are standards that have to emerge for what counts as sufficiently unique and original and how long it lasts, all that.

Paul Cwik: Yes. So that would have to be part of it. I agree.

Topic: Patterns, Substrates, and Negative Servitudes

1:51:35

Stephan Kinsella: But you would also have to acknowledge that you are okay. The reason I was talking about the substrate earlier is and even if we grant that this pattern of information that someone originated and so-called created like a poem or the plot for a novel or a painting or Lord of the Rings. Although none of those things are completely original. They are all cumulatively based upon the existing culture that went before it. Nothing is ever 100 percent. But let us just say it is original enough to be different. And I agree that for most for many original copyrighted works they are the type of thing that are so unlikely they would not emerge on their own without an intentional active creative mind behind it. Yeah, you could come up with silly things like, a billion monkeys in a billion universes would finally have typed Romeo and Juliet or Atlas Shrugged, but as a practical matter, it only Atlas Shrugged the pattern for Atlas Shrugged only exists because Ayn Rand existed and did it.

Okay, I agree with that. I just do not think that is relevant for ownership because if you notice when I said that when there is conflict over scarce or conflictable resources we identify the owner by asking who was the first user that is homesteading and who got it by contract from someone else. None of those have to do with creation because we do not think we created those things. So let us get into that. And finally, we have to recognize that a pattern of information, which is what Atlas Shrugged, the book is separate from the physical book it is written on, never exists as an independent object on its own. It is always just the arrangement or the patterning of a substrate. And if you can see it or understand that then I think you will see that in general the characteristics or properties of things that are ownable are not themselves ownable. So for example if I own a book which has Atlas Shrugged printed on it.

The book has a lot of features. It has a weight. It has a color. It is physical. Well, it has characteristics that define what it is and that are part of its identity, but that does not mean and if I am the owner of that book, that means that I can prevent someone else from using that book without my permission, but it does not mean that I own the weight of the book. It does not mean that I own the age of the book. It does not mean I own the color of the book. And it also does not mean that I own the patterning of the book which is what you effectively have to say.

So when you say that you own the book the physical thing right you do own its age and its I do not I do not own its age. I mean it is just a characteristic of the thing. If you own the book you own But you do not own you do not own characteristics. That is the point. If I own a red car I do not own red. Oh. Oh, I see what you are saying. I do not own redness.

You do not own I own the car that happens to be red. Okay. Yeah, I see. Okay. Yeah. You do not own the properties of property. That is why I do not call it property. I call it a resource that is owned that you have a property right in.

If you call it a property, then you start. So then you have people which you said earlier, people always say, Hey, Kinsella does not believe that ideas are property. That is not actually my argument. It is not that ideas are not property. It is that there are only property rights in physical resources over which there can be conflict and an IP right is not actually a legitimate assignment of property rights in the things over which there can be property right but that is that is your conclusion you well you cannot own you I think it is impossible to own ideas I agree with that if we are using the ideas as the as in the broad sense. You cannot own patterns. Well, I think you can, right? And that is part of our conflict here.

Topic: Homesteading, Labor, and Enclosure

1:57:44

Paul Cwik: So let us go down that path a little bit. Can we? Sure. So homesteading so tell me about how we get through to homesteading right so how does one become the first occupier what is the limitation to the occupation so we have Crusoe. He steps on an island. Does he own the entire island? What if he does not step on an island? He steps on a continent. Neil Armstrong own the whole moon.

Stephan Kinsella: Right. Well, imitation of that occupation. The reason I asked you earlier if you more or less agree with me on private property rights is that then it is irrelevant how we deal with the edge cases or the application of the difficult issues. We agree in principle that humans need to act and to do that they need to use things in the world that have never been used by someone else. So there has to be a first user of a thing for humans to survive and for there to be so that means first possession or original appropriation is implicit in human survivability and action. And if we are going to have a system where conflict is reduced, that is when there is a potential for conflict over the use of these things that were previously unused and that someone first started using there, then the property rights will always necessarily have to recognize that the first user has a better claim than the second user. Now, how far that use extends the speeding, let us slow down a second, okay? But my objection is that the first occupier to identify the first occupier is that it depends on labor.

And now you are going to say, well, it depends on action. There is no such thing as labor. But no, I never say there is no such thing. I just think that labor is a subset of action. Labor action can be labor or leisure. But yeah, it is action. Action is always part of the first use of a resource. That is true.

Yeah. But how does that distinction create the difference between mixing labor to create the property? Right. So it is not mixing. So this is the Lockean mistake is the over reliance by Locke and his followers on Yeah. But I am not I am not talking about Locke. I am just talking about Paul, right? And so when I am looking at this and I but what I am saying is you do not own the resource because you mixed your labor with it.

Well, put it this way. You do own your resource because you mixed your labor with it, but only because that is the way you identify that you are the owner. It is an identification. It is not because you owned your labor. In fact, you do not own your labor. Labor is just an action. Okay. So, so we will just can we use labor for convenience sake?

Yeah, labor is a type of action. I do not deny that. So, my use of labor then identifies what I claim from an unowned resource and that is what then gives me as the right of first occupier. So homesteading Hoppe would say that this is called embordering. It is basically but all embordering is an action. All useful resources in action, right? Well, so the general principle in my view is creating an objective link. Okay, that is something that cannot just be done by verbal decree because verbal decree, which is why I do not own the moon or Mars.

Right. But because any number of people could say they own this thing. Oh, there is a mountain top over there. No one has ever been to it. I hereby claim that I own it. Well, a million people could say that at the same time. And so that type of rule would not reduce conflict. So because the rule has to reduce conflict and because it has to permit the first objective use of an unowned resource and because once you own something then it cannot be taken from you without your consent by like a Mises type aggression analysis.

You get to the fact that any property rule has to basically be anchored in the first use establishing an objective link between the actor and the resource and that basically means the homesteading the general idea is embordering establishing a border around it that defines what it is and by your use of it sometimes that is transformation which is a labor type activity. Sometimes it is putting a fence around it also action. Some but basically you do something that is a way that publicly indicates that you have now made a use and a claim of this thing and it is no longer unowned, no longer part of the commons. That is to me what homesteading is. That is the I am enclosing this pattern of words property right. Okay. But when we are talking about enclosing a piece of land, we are talking about enclosing a thing that is a means of action over which there can be conflict. Yeah, there cannot be conflict.

Just like there cannot be conflict over religion, there cannot be conflict over a pattern of information. The conflict is always No, there cannot. Yes. You say that you created it and I say that I created it. I do not I do not care if you created it. I am okay with that is the conflict. No, the conflict is when you want to prevent me from using my printing press to print a book that looks like yours. That is the conflict is when you claim a property right over my printing press.

Yes. Yes. It is But it is So again, like just like the fight is not the fight over religion. The fight is not over the pattern. The fight is over the physical book that I own. I own the paper. I own the printing press. I own And I am limiting your use of it.

Absolutely. Exactly. But I never So here we come to the heart. Other property rights. I am That is what No, but property rights do not limit property rights. We already established that. No, you are right. I am limiting your use of your property in the same way that all property rights limit the use of all other property rights.

Correct. But you can only do that if you can show that my action violates your property rights. So that is why your argument is circular and question begging. Well, you need to show doing the same thing then. No, because we are you and I both agree already that there are property rights and should be property rights and scarce resources. We have agreed on that already. Well, if you were a socialist, we are going to have a different argument. You are saying so you are using the word scarce again, right?

Okay. Rivalrous. Let us say rivalrous. Fine. And honestly, I do not see this is why I was trying to bring in the conflict thing, right? Where it seems like your highest value is then it if it must lead to a decrease in conflict. No, it is not my highest. So that is another it is not my highest value.

It is just that what that is what libertarian principles mean. Libertarian principles say that aggression is not justified. It is what Nozick calls a side constraint on action. It does not mean it is the only value or the highest value. It just means that you cannot justify an action or a law that commits aggression that takes someone resources without their consent. It does not mean it is the highest value, but it does mean that that the fact that the world has scarcity, sorry, the fact that there is conflict possible in the world and the fact that people most people value avoiding conflict is the reason why we come up with these property rights, right? To right I get that support they are the normative support for possession of a resource right but that is not the only source of conflict is rivalry use of it is that is why I fought with you earlier on the word conflict it is the only source I guess that is another let me let me give you one I do not know if you had time to read this but the core way I look at the core problem with IP rights we could talk about just patent or just copyright. And this this will help explain why I am against this property right in a pattern of information is because the pattern of information does not exist on its own.

It only can be instantiated in an existing tangible physical material resource. Because of that and because those resources already have an owner identified with homesteading and with contract, then effectively what the ownership what the ownership of a of a property right in the in the intangible pattern of information is is it is an ownership right in their existing property already. And that is a new it is a new ownership rule that overrides homesteading and contract. And the example I can give is what is called a negative easement or a negative servitude which you are probably familiar with at least in the HOA or homeowners association context right where you have a neighborhood which has a master plan and they lay down this this real property right that is shared by all the neighbors which is basically restrictions on use and it is a contractual and property. It is a negative covenant. It is a negative covenant or a negative easement or a negative servitude we call it in the law. And the reason it is permissible is because just like if you own a house and you give a security interest in it to the bank, you can divide ownership up. If I own a house, I can you contractually agree to and you purchase the house.

I get that. But what you agreed to is you agreed to you are the only one who can use the house or sell it. But you cannot modify it without permission of your neighbors. Basically, you have given them a veto right. That is called negative that is called a negative servitude. And the reason it is legitimate is because it was consensual. You consented to it. Just like if a girl has sex with some guy, it is not rape because she consented.

But if she does not consent, it is rape. I mean, consent makes all the difference, right? Yeah. Yeah. I am not disagreeing with any of this. And the thing for copyright rights is it is basically the grant by the state to the copyright holder of a negative servitude over my printing press. Well, we are not even though I did not consent to it. It is non-consensual.

That is the problem. Well, I do not know. You see, because we are at like this sort of meta level of whether it is or is not a right, whether it is codified by the state or not is kind of a secondary issue. Well, that is I do not whether it is a state or not. I mean, to have to have someone other enforcement mechanism. It is not to have a to have another citizen in the world. To have the author of the book have the right to prevent me from making copies of that book with my printing press means that he has a negative easement or negative servitude over my printing press even though I did not grant him one. Yes, it is non-consensual.

That is the fundamental problem with it. So, you need to show how I granted that. And your argument seems to be, well, I created it. But that is circular because you are assuming that creation or originality or uniqueness is the hallmark of property rights. But it is not. It is not a source of property rights. Uniqueness is not a source of property rights. It is enclosure of an unowned thing.

Well, actually what what is going on is I am using I am using my labor to enclose. Yes. Okay. So, so I think we were both in agreement on enclosing, right? So, I can have a no smoking policy in my house, right? Because I have enclosed the common air in my house. No, no, no. Hold on a second.

No, no. I think you are I think you are trying air is good. The air in my house. And I can say no. Yeah, but enclosure just has to do with the way that you become the owner of an unowned thing. It is about homesteading. You do not have the you do not have the right to prevent someone from smoking in your house because you enclosed it. Have ownership now.

Yeah. But but you might not have you might have bought the house from someone else. Like it has nothing to do with enclosure. Enclosure is a concept that just that explains why the original first take you take a common. Okay. So there is land unowned, right? I built the house and now I can say no smoking because I have enclosed that. You can say no smoking because you own it.

Yes. Because I have you own it. You own it because you establish an objective link. You establish an objective link by embordering it. And so IP encloses the commons of letters or ones and zeros or musical notes and creates the scarce good. But do not you see how you are shifting to this weird metaphor now? And you are using the word in a totally different sense. I mean you can make all kind I could say well I enclosed because the enclosure requires is requires an action and the creation of the pattern creates butction enclosure enclosure requires a specific type of action and the action is the objective link that makes a connection between an actor and a resource.

Yes. That was previously unowned. That was previously unowned. That is a resource. That is a scarce means of action, a rivalrous resource. That is the whole point. And so when Tolkien wrote Lord of the Rings, it was previously unowned. No, but you but but listen to what I just said.

Enclosure is not is just one way that you can homestead a resource. It is just one way. The basic idea is embordering it by performing an action that establishes a link between the actor and a previously unused rivalrous resource. Why does it have to be rivalrous? Because the whole purpose of property rights is to prevent conflict over the over rivalrous things, things over which there can be rivalry. That is I guess that is where where we where we are disagreeing. Is that that is why they have to be over rivalrous. Because because let me let me let me ask you some some other questions.

Right is there is there fraud in in your situation in your world? Yes. I have I have a whole section of my in my book on on on why fraud is a type of u of aggression and and by the way why it does not justify trademark law because trademark law has nothing to do with fraud contrary to propaganda to the contrary but yeah fraud fraud is in essence a type of theft by trick and that is basically the use of the use of someone resource without their informed consent. Okay. What does informed mean? Well, without I can just say without consent. It is not it is not consent. Okay.

The reason I am using that is because that people understand that that term from the from the surgery concept where where the surgeon cuts you open to perform a procedure and they are doing something to your body that in some context would be considered aggression because they are cutting they are cutting you open. Yeah. But but then the the justification is well it was consented to. But then the question is, well, did you give meaningful or informed consent? Did like, did he tell you, okay, I am going to go in to take your appendix out, but if I see a tumor next to it, I am going to take that out, too, or was that So, it is got to do with communication and consent is always a matter of communication. Okay? And that is a matter of custom and language and and default presumptions and context. So whether it is informed or not is just a factual question about what was actually understood by the parties.

Okay. I have got a lot of questions and and I just kind of want to because I am going to I am going to interview you now. You might but I am curious what is the relevance of the fraud thing. But but yes I but yes I am not well because so here is here is my next question. If I print a certificate put my name on it and a law school logo on it. Yeah. Yeah. Is that okay?

Well, that is What do you mean? Okay. So, I I I hang it in my office and it says that I have, you know, certificate from a law school and I have my name on it. Okay. I am using my property, you know, to to make a certificate with a law school logo. Well, if I if I shoot you, I am using my property and it is still not permissible because you have a property right in your body, right? But what is if I if I defraud if I defraud you, it is not a it is it is it is an act of fraud because I am I am taking your resource like if if if I if I use if I defraud you out of your money like you pay me for a rotten rotten basket of a rotten truckload of apples that are I know are bad. I am I am I am say I pretend to be a lawyer.

I am not a lawyer. Never been to law school. And I have this certificate that says, you know, my name and and law school on it. And uh now I I I want to hire myself as a as a as a lawyer, right? Am I committing? No. Yeah. Yeah.

I know where you are getting it going with this, but I I will entertain every second because But um um No. So the my my answer is it depends on the context. And I am also a big believer in caveat emptor. I think people should basically suffer the response of being an idiot. Yeah. So, that is why that is why although I am against fractional reserve banking, I am not I do not think it should be illegal. I think it is a good thing if people are parted with their money by putting it in fractional reserve schemes.

Okay. But in principle, if you lie to a customer and you say, I am not going to lend your money out uh and then you do it, that is a type of of trespass. There is either conversion or it is fraud or contract breach or something because you told them you were not going to do it. So, if you deceive a client into hiring you and paying you money to represent them uh in a case where they need a lawyer and you take their money, I would say in if the case is the details if if if the circumstances are are fit are right, then yeah, they have a claim to sue you for um for um you have to you have to pay them something for for violating for for defrauding them. Yeah. So I think I think but but but by the way fraud has literally nothing to do with copyright at all. I am I am just I am just thinking broadly in these things.

 

 

FINAL PART:

 

Topic: Fraud, Certificates, and Context

2:15:37

Paul Cwik: So, I I hang it in my office and it says that I have, you know, certificate from a law school and I have my name on it.

Stephan Kinsella: Okay.

Paul Cwik: I am using my property, you know, to to make a certificate with a law school logo.

Stephan Kinsella: Well, if I if I shoot you, I am using my property and it is still not permissible because you have a property right in your body, right? But what is if I if I defraud if I defraud you, it is an act of fraud because I am taking your resource like if I defraud you out of your money like you pay me for a rotten basket of a rotten truckload of apples that I know are bad. I am say I pretend to be a lawyer. I am not a lawyer. Never been to law school. And I have this certificate that says, you know, my name and law school on it. And now I want to hire myself as a lawyer, right? Am I committing?

Paul Cwik: No. Yeah. Yeah. I know where you are getting it going with this, but I will entertain every second because. No. So my answer is it depends on the context. And I am also a big believer in caveat emptor. I think people should basically suffer the response of being an idiot.

Stephan Kinsella: Yeah. So, that is why although I am against fractional reserve banking, I am not I do not think it should be illegal. I think it is a good thing if people are parted with their money by putting it in fractional reserve schemes.

Paul Cwik: Okay. But in principle, if you lie to a customer and you say, I am not going to lend your money out and then you do it, that is a type of trespass. There is either conversion or it is fraud or contract breach or something because you told them you were not going to do it. So, if you deceive a client into hiring you and paying you money to represent them in a case where they need a lawyer and you take their money, I would say if the circumstances are right, then yeah, they have a claim to sue you for defrauding them.

Stephan Kinsella: So I think but by the way fraud has literally nothing to do with copyright at all. I am just thinking broadly in these things.

Topic: Contracts, Labor, and Services

2:18:04

Paul Cwik: Can I retain a lawyer?

Stephan Kinsella: What do you mean can you retain a lawyer?

Paul Cwik: Right. I want to hire a lawyer on retainer.

Stephan Kinsella: Can you pay someone? Can you make a contract with a conditional payment on the performance of an action? Yes. That is what employment is.

Paul Cwik: What am I contracting for then?

Stephan Kinsella: Okay. So, this I have another chapter on this. This is another mistake people make. They say that if you can sell something, it means you own it. You do not own what you sell. That is conflating economic with legal terms. Some contracts are simple contracts where it is a trade of one good for another. Like I hand you an apple, you hand me your banana.

That is just an exchange. And in a legal system where the property rights are recognized it is a trade in titles and it is a trade in possession. Some contracts are more complicated. Some have an element that is future-based. So, I give you a dollar now and you promise to give me an apple tomorrow when your crop comes in. So, I am giving you the dollar now and you are transferring a future apple to me in the future. I could also instead of making an exchange for an exchange of titles, contemporaneous or future-based, it could be for services. So, for example, if I want you to give me a massage, I could say, I am going to pay you for the massage.

And in economic parlance, it is an exchange. But in legal in libertarian legal terms, it is only a one-way exchange. It is an exchange of title to the money, but the service is not sold legally because it was not owned. It was just an action that was performed. What is happening here is that I am using my ownership of the money and my ability not to give it to you, my ability to refuse to give it to you to give it to you only on the condition that you perform an action that I want you to perform. So basically it is a one-way it is an employment contract and the contract is this. If you perform this action then you get the money. So it is a conditional title transfer. That is what happens when you hire a lawyer. You are basically saying if you perform certain actions then the money that I own X dollars becomes yours.

Topic: Insurance Contracts and Obligations

2:21:03

Paul Cwik: Can insurance companies exist?

Stephan Kinsella: Sure. What property right is in the contract? That is more complicated because if you do what Rothbard did and you reformulate the so the way it would be looked at now is that rights there are rights and obligations. So contracts are basically enforceable obligations that are the result of making certain enforceable promises. That is how contract law works. Now the problem with that that Rothbard and Evers saw and they are not lawyers. So their theory had some mistakes but it was a brilliant reworking of the theory is that contracts are really just transfers of title to resources. Once you understand that almost every legal classification of existing complicated contracts like insurance contracts would need to be reframed in his terms.

And there has been no need to do that because we do not have Rothbard system in practice or anywhere and I am the only one who really would try to do it. Now I have some ideas about how you would do it. So basically an insurance contract and it rests upon other fictions like the corporation which is another whole can of worms. But if you just assume there is a group of people operating calling themselves an insurance company, they presumably have certain assets at their disposal which could include in economic terms intangible assets which are contracts with other people, things like that, reinsurers or whatever shareholders things like that. So basically it is a promise. It is an enforceable promise on the part of the insurer to transfer money to you under certain specified conditions like if you have an insurable event happen. So basically the promise is not the property.

So the way I would look at that is that the contract is a conditional future assignment of owned resources by the insurance company to the client. Earlier I said that I agree with more careful legal scholars like others that we should avoid the word property to refer to the thing owned. So like so I would not say it is the property. So property is the property of something. That is like saying it is its characteristic. I mean, so it is always about a resource. Property in your world is sort of like capital in my world.

Paul Cwik: Capitalism it means so many different things in all these different contexts. Correct. Yeah. Yeah. That is why I say that you have a property right in a resource, but it is not property. Like that car, if you say that car is my property, what you mean is that car is a material rival or resource over which someone is the owner or over which someone has a property right. I mean that is why the word property arose that way. It is a proprietary interest in it is proper that you are the one who can control who gets to use it.

So over time just like we say that car has certain properties. It is red its horsepower or its properties. If I start using if I start using a resource as a caveman like a leather skin or a spear, it is an extension of myself. It is one of my properties. Yeah. Yeah. I see what So, we start saying it is my property, but and then we then we lose we lose the remembering of that connection and then the question becomes Kinsella does not believe in ideas or property. It is like it is never that they are not property. It is what types of things that we can identify with useful concepts that exist are the types of things over which there can be conflict and over which and which can serve as use means of scarce as means of action and those are the subjects of property rights.

Topic: Scarcity, Knowledge, and Property

2:25:22

Stephan Kinsella: Okay. And we identify the owner by the four principles of homesteading and contract and the others. Yeah. So, do you sort of see how this fits together? Like if you start reshuffling and making sure that you use careful terminology to make sure they fit together, eventually there is no room left for IP rights because you end up basically favoring it. Still seems to come down just to a couple of definitional things like the original principles or the original foundation things. That is why I asked you that is why I asked you if you agreed with them in the beginning. Well, I knew that and I was trying not to immediately agree to them because all of this stuff downstream because like scarcity, right?

And so why should not we create property rights on anything that is controllable? Because it is almost for the I am going to give sort of a more I am going to go metaphorical now and use analogies. As an Austrian you understand I think that money is a necessary institution that overcomes two problems. One is the double coincidence of wants. And the other is the inability to meaning easily the inability to compare heterogeneous goods to engage in calculation. But money is not wealth itself. Money is the means we use to trade among things of that we that we that are consumer goods effectively and capital goods that produce the consumer goods. To simplify to simplify and which is why Mises and Rothbard maintain that any supply of money so you need money to have an advanced economy to avoid the problems of barter but any supply of money is optimal.

Would you send me that after remind me just up on mises.org. I want to see it. It might be relevant. This is something I have written. But the point is understanding that understanding that any supply of money is optimal and that money is not it recognize that money is not wealth and that is why if you increase the money supply it does not create wealth. I mean, you could use that is basically my argument. But what I am getting at is if you do create more money, it always comes at the expense of something else. It even if it does not create the business cycle, which it does, and even if it does not lead to Cantillon effects, which it does, it does, and which I am skeptical of anyway.

But that is a whole different issue. No, it has to. Yeah. I mean, I am skeptical of the concept of Cantillon, but that is my Austrian heroes. But anyway, even if it does not even if it does not set in motion the business cycle, it always redistributes wealth because it gives money to someone else and then they get they can spend it. Yeah, I know. And so it bids up prices and whatever. So you cannot because money is not wealth.

Creating more money always is a way to redistribute wealth. Same reason that we libertarians tend to say we oppose positive rights and we favor negative rights. What we mean by that is that yes it is okay to impose an obligation on people to leave everyone alone. But you cannot give someone a positive obligation to give them food and welfare and all that. Because you cannot get that. You can only get that by taxing people. Nothing is for free. If you could just wave a magic wand and say, I am going to double the money supply and make everyone rich.

Or I can wave a magic wand and say everyone has a negative basic income for the rest of their lives and there is no impact on anyone. Hey, might as well do it. But nothing is for free. And it is the same thing with in law for property rights is that once you understand that the nature of property rights is as a normative support mechanism to support the institution of physical use of physical means in action over which there can be conflict. And once you understand that the only just way to do that is the natural way which is assigning it in accordance with first use and that that is the ownership is maintained until that ownership right is transferred by contract like that is it. Once you understand that, you see that if you create new rights in things that do not independently exist, but that only exists as a feature of a thing that already existed and is already covered by the first rules, then you have to basically take those property rights away. But if I could take that is basically if I could take the ingredients that you are using for first use and use that to create an intellectual property right, then it would be legit. You are saying that I cannot use those same tools to derive that intellectual property right and therefore it is illegitimate.

Partly and I am saying that informed by what I mentioned earlier which is you have to recognize the distinct but equally important roles in human action of knowledge and of scarce resources. They are both you cannot imagine human action without both because but now we are using a different sort of scarce because now we are talking about like at the margin scarce resources not not non-rival not rival risk and consumption resources well human action you see how you have switched the that to actual scarce I am using the word scarce because that is what Mises uses when he talks about the means of action but what he is talking about is you are saying that there is there is fewer means than ends scarce in that sense. No, I do not mean that. What I mean is that there is a Mises and the others explicitly I have a chapter in my book called goods means scarce and unscarce written with Tucker and there is Mises and the other guys and what they say is that they distinguish between the general conditions of human action and the scarce means of action. Okay. Now, they do use the word scarce, but they are talking in praxeology about the types of things that you employ to make a causal change in the course of affairs in the universe, right?

This is what I mean scarce. Scarce meaning what then? I mean, you have scarcity. I think it means rivalrous. Basically, it means conflictable. It means causally efficacious things that can make a change in the world but not scarce and but not rivalrous and cons well it is not yes that is why the concept of rivalrous is not exactly it is closer to it that is why I call it conflictability but I think basically Mises means of action as the core component of human action action are basically the same as rivalrous means rivalrous things and basically the same as conflictability.

Topic: Bitcoin Ownership and Legal vs Economic Concepts

2:33:47

Paul Cwik: I have got one more big not big but question that came up in my reading of your stuff. And it is if you could explain what you meant by the sloppy use of ownership in the Bitcoin context.

Stephan Kinsella: Well, they are so they are doing Yeah. Okay. They are doing what? Just for the same reason that earlier I said it is better to use the word property as the right of an actor over a resource instead of using it to refer to the thing. And also to keep in mind the distinction between legal concepts and economic concepts. Even Mises did I guess that is where I get lost. Mises was careful about that in Socialism and Human Action where he distinguished between what he called catallactic or sociological ownership to refer to what we would call possession which is a purely descriptive human action category that would apply even to Crusoe on his island. He calls that ownership but he puts a qualifier.

He calls it catallactic ownership. He distinguishes that between what he calls juristic ownership which is what we mean by ownership or legal ownership. So the point is in careful analysis there is a distinction between possession of a resource which is part of human action in praxeology and between the legal right to use the resource that is ownership. Now if you understand that property rights emerges as a normative social legal institution on top of the practice of possession and control and its purpose is to prevent conflict over these things by giving a normative like superstructure like it is to basically the purpose of property rights and the legal system is to provide normative support for possession. That is the relation between the two. Can there be ownership without dispute or is there only ownership with dispute? There can only be ownership over things that there could be dispute over because the whole purpose of property rights is to solve the possibility of conflict and there can only be conflict over conflictable things which are the basically the scarce means of action. So that is the reason why I keep using that word scarce because Mises uses it.

But yeah, I think we could be I mean I would I think I could dispute someone or engage in conflict if they stole my book, but what you would be doing is you would be saying that okay in the default world before we get to I forgot what I was to say, but before okay in the default world let us say we do not have patented copyright recognized there is no statute. So we just have an emerging society where everyone minds their own business and people engage in trade and they recognize the need for property rights so they do not have disputes over these things. And the basic rules every if you ask someone to articulate it and you have a smart legal philosopher comes around and codifies it. The implicit idea behind the property rights rules that they use when they go to court to dispute who owns these things is who got it first and did you get it? Did you or who did you get it from by contract? Like that is how you I follow that. I really really do. And if we are starting from a peasant society, right, there is really no other thing.

Yeah. Yeah. So, I am imagining now that we how does it get introduced into the picture? Even the narrow form you are like this copyright idea you are So, basically in this society, anyone who thinks about it would would have to recognize that the reason people do better in the world and has successful action is they have better means or good means and they have better ideas. Like those are two important functions of features of action, right? The knowledge that got and over time these these ideas what Hayek calls the fund the fund of experience every generation learns for the last like our technology is better than the Romans. So when you when you act, you can you can use the resources at your disposal, the scarce resources, the means, the capital in the world, and you can also use the growing body of of what Rothbard calls recipes or technological knowledge. Those two things both inform both go into your action.

And so over time people do this but they would recognize the distinction between the the things that you use to affect the world the means of action and your property rights are necessary in them because there is conflict over them and this ever growing body of knowledge which is the fund of experience everyone can dip into to guide their actions and then someone comes along and says well you are I was selling copies of Atlas Shrugged and now you you see that it is popular with the audience and so now you started making a copy using your printing press and your ink. I am asserting ownership of that because it is original. And everyone is going to say, well, no, you are trying to say that I do not own my resource because yeah, because you have come up with you have come up and I in 2001 in my shorter article on this I published on Lew Rockwell, I called it something about Napster and in defense of Napster and the second homesteading principle. Basically, you are coming up with a second homesteading principle. You are saying that in addition to the first homesteading principle, now there is another homesteading principle, which is if I come up with a useful or unique or original pattern of information that gives me a negative ownership right over your existing resource that trumps your I get it. And you have to but and then your argument is, well, yeah, I have the right to stop you because all rights invade other rights. It is like, No, they do not. And also because I am the creator of it.

And I am like, Well, creation is not a source of property rights. Well, okay. So, all this means is the burden of proof is on you to show I I see what you are trying I see what your claim is and your argument and I appreciate it. I do. Although although I think that you cannot just start with with homesteading, right? You say I have to trade it. But even trading is reduct you can reduce that back to homesteading right contracts. Yes.

Yes. That is why contract is secondary. All of that can can go back to homesteading. But correct. If I argue that that the first occupier is is dependent upon the labor, right? That some action. Hold that thought. Let me I need to take a bathroom break.

I am Oh my goodness. It is almost two o clock. Okay, I could took a quick bathroom break. Okay, tell me what is going on logistically. So, so it is it is almost 2 o clock and I have completely lost the time because I have been enjoying this very much. I I enjoy talking with you. I have learned quite a bit. I cannot say that I have changed my mind yet, but you have certainly given me more to think about and refine and and yeah, go from there.

Well, let me say about I your questions are really really good. You are thinking hard about it and you are thinking sincerely about it, so I appreciate that. And your questions are actually excellent. A lot of them involve complicated things I have had to think about and and reply to already. So, there is a reason. Yeah, there is a reason why you are repeating some things I have heard before. It is because that is the obvious response to some of these ideas. But yeah, but I think that is I think we made some good progress today in understanding where we are coming from.

Yeah. Yeah. I I think that that while we agree that homesteading is is sort of the the key that then everything kind of superstructures on, right? I think that that I would say, but if we take a step further back, that homesteading requires an action. And that action, I am just going to call it labor. That that action is what also can create this unique combination of letters or ones and zeros or musical notes and such. And that that then basically derives the same sort of way that you are saying is is homesteading. So so I do not I mean I I see that is where the tension is is is if IP gets wedged in that way and you say no and I say yes and I think that is that is where we branch.

Yeah. And I think you see you I think you see you would have to I think everything else kind of falls into place once you get get that point but you would still need to have a a really careful definition of what you mean by IP because your theory would support patents according to most of your fellow IP people. In other words, you would have to show that it only applies to copyrightable things and not to inventions. And you know, you would have to come up with maybe trademark. I do not know because honestly that is that is outside of my my thing. My I was talking to my wife about this yesterday and she said, Well, would there be any brands in Kinsella world? That is like saying, Would there be people would people have names? Right.

But if I make and hold on, do people people have names now? People Hold on. People have names now even though there is no trademark. Even though you can you can name your you can name your son John G. Right. But I do not know. Right. Well, I am just saying that there would be brands.

The question the question is not would there be brands. The question is would you have a an intellectual property right in your brand? Right. I mean would there be any economic benefit of it? Of course there is reputation rights. People have names for a reason. But if I sell a knockoff of a Gucci bag, is that fraud or is that just me property? Do you do you think do you think when people buy a a 20 dollar Gucci bag off you use Rolex?

Okay. Do you think when someone buys a 20 dollar Rolex that they are being defrauded? I do not think that is relevant. Well, you just you just asked me if it was fraud if it was fraud. If it does not matter whether I perceive it or not, right? Is not is not the fraud on the on the person that is lying? The seller who is lying. Is not it only that the fraud?

I mean, you say, you say, well, I sold him a 20 dollar Rolex. And I say, but you told me it was a Rolex. I was fraud defrauded. And you say, well, you did not really believe me. So, I am asking you, do do you I am asking if you think that the person buying a fake Rolex is defrauded. That is a simple question. Then let us go with yes. What?

How are they defrauded if they if they intentionally buy a fake Rolex? Because the person who sold it to me said it was a real. But that is okay. In that case, yes, there is the fraud. But that never happens. This is not what happens with fake Rolexes. But we are not talking about what actually happens. We are talking about the the metaphysical level here.

Yes. I think if you if you well I am a big believer as I said earlier of caveat emptor. I think if you are an idiot you but in principle if you lie to someone and you say I am sell a better example is if I go to a Rolex store in the mall and I I spend 10,000 dollars on a Rolex and it turns out that that is a fake. Yeah. Is there fraud? I think there is either fraud or contract breach. Yes. Okay.

But if I buy a knockoff Rolex on purpose to save money, I am not defrauded. The problem with trademark law clause, it prevents the the seller of the fake Rolex to selling it to me and it prevents me from buying it. Even though we are I am an innocent victim. I mean, there is no victim of that of that fraud. If if I take my name and put it on your book and I sell it as if I was the originator, is that fraud? It could be in theory it could be fraud of the purchasers of the book. Yes, in theory in principle. Okay.

Okay. But but that is not what copyright law prevents. What is that? Copyright law has nothing to do with that. Copyright law is notution. It could be fraud. That we already have we we already have fraud law. That is why I say we there is no case for IP law because we already have fraud law.

And there is a if there is a case of fraud or contract already Okay, I do not have time right now, but honestly, I would love to know where those things what the differences between the two are of how fraud law yeah, I will send you I will send you some links. I will send you some links. Not not a hundred links, please. No, these are mostly short short links. And and if you send me send me your link to your to your my article. Absolutely. Upcoming money supply paper. Now, Stefan, my my dissertation was was u finance and and business cycle stuff.

Okay. All of this is kind of like an interesting side hobby. You are stretching you are stretching your brain. Well, look, I enjoy it. I really do. I enjoy But you do not claim to be an expert. I know. But you did give a paper on this and you know but I did not do anything with it.

Although probably why I did have one guy actually submit an article I think it was either a libertarian studies or or quarterly journal of Austrian economics attacking my my conference paper and it was it was a hack job but you know it is like that is that is really going that is really stretching to to attack a a conference paper that was never published. Could you if you can if you can remember or find that and send me a link to it or the paper? I do not think I am Huh? I do not I do not think I am allowed to because I was I was asked as a as like a reviewer. Is this recent? Well, a couple years ago. Well, maybe it has been published is my point. Oh, I do not think so.

Or it might have been published somewhere, but it was rejected by whatever journal it went to. I not by I did not I was not the one that rejected it, but but No, I got it. I got it. I got it. It was not a well-written paper, but just the fact that someone was attacking a 2008 conference proceeding paper. Paul, that was me. Oh, was it? Nice.

No, nice. I am just saying that I do I do enjoy talking to very smart people about these sorts of things. about issues and such. We are a small group, you know. I know there is there is not many of us. In fact, do do you do you remember Anthony Mueller? Yes. Where is that name?

Where have I heard that name? Well, he was born in Germany and he moved to Brazil and uh well, anyway, he just passed away in May. Yes. Yeah, I think I knew that. And you know he was one of the few people that that are into Austrian capital theory. And I am like oh we lost that other one. I was I was telling my wife I am like there is probably only like you know maybe maybe a dozen of us at most in the world that are interested in you know Austrian capital theory and the math and all that sort of stuff. So well if I am not mistaken did not Hayek write on that?

Yeah, because I I am I am a huge, as I mentioned, I am I am not a Hayek fan, but I I got this post about it and and I think Hoppe or someone said that he is Hayek and and he he is pretty good on that, but that is the one thing I have never read by Hayek and he said that like only three people in the world have read that or something, but it is true. So, so over my shoulder are the are my my Hayek books and my mis books and my anyway but pure theory of capital is is Hayek main book and and if you read the the introduction by Larry White he is basically says do not read this book read Roger Garrison book. Yeah. Well, it does not mean that it is bad, but I mean I am just saying that I I I I reserve my criticism of that book because I have heard good things about it. It is just the one thing I have everything else I have read by him. You know, if if you are ever interested in in capital theory, like just broad broad capital theory, there is a book by Mock no sorry by Lutz Friedrich Lutz F.A. Lutz theory of capital and the theory of interest. And they go through like the chronology of of people through history.

And I stopped reading once I got to Keynes because it sucks after that. But I mean it is it is Hayek Hayek was kind of going in this direction and none of the profession followed it, not even the Austrians. So it kind of kind of goes down this branch that never gets picked up. Ludwig Lachmann comes in the 50s and he extends it in a very different direction and now Peter Lewin and a couple of others have been kind of reformulating some stuff. So I I find it really interesting and you were asking me in the emails what have I been working on and this is the stuff I have been working on. So I have you kind of caught me right at this optimal I just finished with this. I am about to pick up this and I am I am not a good multitasker. I have learned this and it is like I want to focus on one thing and you kind of hit me right at that sort of sweet spot where I could do kind of a a dive.

Maybe not a deepest of deep dives, but just refamiliarize myself with all this and I could at least talk intelligently with you. Well, you did. You did. But no, I am I am afraid I am not that interested in capital theory. You do not have to be afraid. I am not. I just I I I I have dipped my toe in some of it and not not high, but I I I I am I am pretty sure I would be a critic of I would be a critic, but without enough basis to mount a good criticism, but a critic of of their use of their of their treatment of of intellectual property as as a capital resource. So which which means which means a sort of a big confusion about the it is it is something I do want to write someday.

It is it is basically I want to turn my attention to something that Bomba started in his thing about whether legal rights are economic goods. Yeah, I think there is my paper. Yeah, it is got some good stuff in it, but no one else. There needs to be a new more comprehensive explanation of a big mistake or some mistakes in economics in political economy in general where people conflate economic and legal concepts and they do not adequately distinguish between them. You know, just the the fractional reserve thing treating IOUs as money. I mean IOU is a legal is a legal instrument. It is a promissory note. So that rests upon or or like the theory of the firm talking about corporations or employees.

Those are all legal concepts not economic concepts. So I think there is too much well yeah the economist does not look at the firm in the same way that or or a company is the same way the lawyer does. They do not but then they use corporations as examples of the firm and and they use and and you know this Coaseian transaction cost idea that the reason that the firm emerges or the corporation emerges is to have employee employees instead of having renegotiated contracts all the time because of transaction costs and it is mixing together economic and descriptive phenomena with legal and normative phenomena and I think that that leads to contamination sometimes you know you look at at at Bombauer Mises and Hayek and their degrees are not economics. They did not have each other. Yeah, they are law I know. My friend better on that. Well, my friend Jeff Barr that I was just talking about, he he he might write a paper on like what is changed or how could we revive that? And I think that it would not be a good idea to revive it now because the law schools are not like the law schools used to be.

It was more of a good classical liberal education and a thinking education. It is more jurisprudence in a sense, I think. But yeah, something interesting about the fact that a lot of these guys had law degrees. Yeah. Yeah. Interesting. Well, all right. I really appreciate our discussion.

Hopefully I am not in too terrible of a light on your podcast. No, it it was it was good. It was fun. I am glad we did it. But we will we will talk we will talk further, but send me that article and I will send you a couple of links to Now, you said that you wrote about this in your book and your chapter in your book and your book and your book. I will point you to exactly where. Okay, fantastic.

Okay, cool, man. All right. I thank you. Take care. All right. Bye-bye. Bye.

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Kinsella 2009Stephan Kinsella is a libertarian writer and retired patent attorney in Houston, Texas. He has published widely on various areas of libertarian legal theory and on legal topics such as intellectual property law and international law. His publications include Legal Foundations of a Free Society (Papinian Press, 2023), Against Intellectual Property (Mises Institute, 2008), International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford, 2020), and The Universal Principles of Liberty (2025).

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