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KOL497 | Debate: “Should Free Cities Protect Intellectual Property?” Free Cities Foundation Annual Conference — Próspera, Honduras 2026

by on September 6, 2026

Kinsella on Liberty Podcast: Episode 497.

Yesterday (Sep. 5, 2026) I participated in the debate: “Should Free Cities Protect Intellectual Property?” with IP attorney Brian O’Beirne, moderated by Tipolis CFO Alex VossTopic, held at the Free Cities Foundation annual Conference, Próspera, Honduras, Sept. 4–7 (Sat. Sept. 5, 2026) (SK profile; O’Beirne profile) (see Free Cities Foundation Annual Conference — Próspera 2026).

I spoke for 4 minutes, then Brian, and then we had an exchange and audience questions for the remaining time. It was very civil unlike some other debates I’ve participated in. 1 Transcript and shownotes below.

Related/mentioned

Shownotes and Summary

Overall Summary of Debate

At the Free Cities Conference in Próspera, Alex Voss moderated Stephan Kinsella against Brian O’Beirne on whether intellectual property is legitimate and what a free city should do about it. Kinsella argued that property exists only to allocate scarce, rivalrous means (self-ownership, first use, contract, restitution); ideas are guides to action, not ownable things. Patent and copyright are statutory privileges—historically Crown monopolies and press control—that impose unconsented negative servitudes on other people’s property, block independent inventors, enrich large firms, and should be abolished. O’Beirne treated IP as a right in human ingenuity and a last individual defense against corporate oligopoly and central banking. He granted that the present code is broken (thickets, trolls, life-plus-70) but said abolition would hand creators’ work to those same firms; the answer is reform, sector-scaled terms, and symmetry of rights, not erasure.

On practice they were closer. Both said Próspera should not pick a treaty fight that threatens the zone. O’Beirne wanted opportunistic protection to attract builders (CAFTA-DR/TRIPS, Infinita). Kinsella wanted the lightest lawful touch—no treble damages, no criminal copyright, shorter terms, Founders’ copyright, no software copyright—and stressed that patents are territorial, so skipping a local patent office does not stop U.S. or European filings and is largely irrelevant for exporters. Audience questions (expiry of “property,” fire and the wheel, trademarks, pharma/FDA) replayed the same split: O’Beirne qualified rights by the common good and novelty; Kinsella called consistent IP perpetual, the patent-bargain a myth, and patents a patch on the FDA.

Summary of Kinsella’s position (from Grok, based on the transcript and his pre-debate email exchange with O’Beirne and Voss)

Stephan Kinsella’s case against intellectual property, as he put it to Alex Voss before the session and then on stage, has two layers that he keeps joined: a rights argument about what property is, and a practical argument about what a free city should do when it cannot get the ideal.

Voss had already framed the dispute narrowly: patents and copyrights—exclusive rights in inventions and works that bind strangers without a contract. Contracts, NDAs, employment terms, and trade secrets were set aside as different questions. Voss’s sketch of Kinsella’s theory (conflict over scarce means; title by appropriation or transfer; creation not an independent source of title; information as patterning of an already-owned substrate; IP as a veto over others’ things) Kinsella accepted, then added history, scale of harm, and institutional design.

1. What property is for

The four-minute opening is the core. We do not live in the Garden of Eden. Action uses two things: scarce means that can cause results, and knowledge that tells us how to use them. Knowledge can be copied; a hammer or a factory cannot be used two incompatible ways at once. Because people have free will, conflict over those scarce means is always possible. Property rights are the norms that let people possess and use those means peacefully—self-ownership of the body; original appropriation of unowned external resources; contract; restitution for wrongs. That, he says, is the spine of Roman law, common law, and a consistent libertarianism.

Ideas do not fit. They are not “conflictable.” They exist only as the patterning of some already-owned substrate (paper, a chip, a machine). You own what you make because you already owned the inputs, not because “creation” mints a new title. Patent and copyright therefore do not add a new kind of property. They give A a legally enforceable veto over how B uses B’s own press, factory, or chemicals. In the debate he calls that a nonconsensual negative easement or servitude—the same structure as a restrictive covenant, minus the neighbors’ consent. Consent is the whole difference.

He is explicit that he does not care about “symmetry.” A rule that everyone may sue everyone for defamation, or for welfare, would be symmetric and still unjust. First-to-the-patent-office does not even guarantee uniqueness: independent inventors are blocked. That is enough, for him, to reject the system as a matter of justice, before any spreadsheet about incentives.

2. History, legislation, and the dishonest name

He adds what Voss’s paragraph left out. Patent began as Crown privileges to shield favorites from competition (Statute of Monopolies, 1623). Copyright began as control of the press and unapproved speech (Statute of Anne, 1710). They did not grow out of common-law title; they were statutes. In the email he presses a further institutional point: patent and copyright cannot exist without a legislature empowered to make law. Organic court-made law—Roman law, common law, Restatements, even a scholarly compilation adopted as a code—resolves disputes over scarce things. It does not invent a 17-year monopoly in a pattern. A free city that takes common-law or Restatement principles as its base, and treats legislation as rare and suspect, has a structural reason not to enact IP at all. His Universal Principles of Liberty are meant that way: not as a statute.

He tells Brian that origin is not his only argument (so the “genetic fallacy” charge misses). He also opposes trademark, defamation, and trade secret, some of which did come through common law. “Sometimes the common law gets it wrong.” The name “intellectual property” is the propaganda move: a state privilege flying the flag of property and capitalism. That is why he calls it intellectual privilege and why, in the email, he ranks abolishing or shrinking it with war, taxation, and central banking—and in one respect worse, because those are at least seen as evils, while IP is sold as a positive good.

3. “Property in value,” labor theories, and the treaty web

The email states the deeper error he thinks sits under most pro-IP talk: a property right in value, fed by a Lockean labor theory of property and a Smithian–Marxian labor theory of value. Labor and ingenuity do not generate title in other people’s already-owned stuff. That fallacy, he writes, now binds almost the whole world through the Paris Convention, the PCT, Berne, TRIPS, and WIPO. So the theoretical case is not academic. It explains why a new city cannot simply opt out without cost.

On stage he answers the “ingenuity deserves respect” line the same way: respect is not a veto over neighbors. Copying freely is why the species is richer. Elon forgoing patents “defensively” is the exception that shows the rule: portfolios accumulate in large firms, thicken into cartels, and do not liberate the lone inventor.

4. Consequences he treats as confirmation, not the foundation

He is not a utilitarian first, but he treats the results as what you would expect from a privilege.

  • Patents suppress and distort innovation, raise prices, impede R&D.
  • Copyright censors speech and warps culture.
  • The “patent bargain” (monopoly in exchange for disclosure the public would not otherwise get) is a gyp: firms patent what they would reveal by selling the product anyway and keep the rest as trade secrets (he points to work associated with Easterbrook and a post on c4sif.org).
  • Fire and the wheel would be patentable subject matter; term limits and “laws of nature” exclusions are political patches, not principles. Consistent IP advocates (Galambos, some Randians, J. Neil Schulman, Spooner) therefore want perpetual terms.
  • Trademark does not mainly stop fraud; Chanel can seize knockoffs the buyer knows are knockoffs. Reputation is not ownable. He ranks harms: patents worst, then copyright, then defamation, then trademark; mask works and moral rights are trivia.
  • Pharma: patents are a patch on the FDA, which forces disclosure and lets rivals queue up. Mises: controls breed controls. Without both, first-mover advantage and secrecy do the work. Even with the FDA, he says you still do not need patents (again pointing to c4sif.org).

When Brian reads Boldrin, Levine, and Lerner as “no productivity gain from expanding patents, hence a wash, hence keep the right,” Kinsella’s frame is the opposite: an unjust monopoly that is also a deadweight lawyer tax does not become just because the empirics are muddy.

Forced to choose between current copyright and none, Brian keeps the current term (Rowling). Kinsella’s reply, cut off in the recording, is that there are business models without the monopoly; Rowling-scale success is not a proof of the statute.

5. What a free city should actually do

Voss asked for practice: how high IP ranks against courts, tax, immigration, medical approval; granting vs. recognizing foreign rights; sub-sovereign constraints; whether a for-profit city changes the ethics.

Kinsella’s email answer:

Ideal end-state first. A free, liberal society respects self-ownership and scarce-resource title. Patent and copyright are “utterly incompatible” with that, like drug laws, taxes, conscription, war, central banks, and state schooling. The cumulative harm of patents alone is “almost inconceivable and certainly incalculable.” Ceteris paribus a free city has no IP law.

Then constraints. You may not be able to be a total IP scofflaw. Treaties and host statutes bind; other states punish tax and banking havens; investors have been taught that IP is capitalism. Reduced IP may not even sell until you educate them. So: comply as little as you must, advertise the compliance as minimalist and efficient, and use the widespread “the system is broken” consensus as cover.

Concrete minimalism (email + debate): no treble damages; no criminal copyright; shorter terms; dump the extra 20 years the U.S. pushes; leave Berne if you can; Founders’ copyright (~14 years) as Tom Bell-style reform for people not ready for abolition; drop software from copyright; other incremental reforms he has listed (Voss asked whether How to Improve Patent, Copyright, and Trademark Law is still the handout—he treats that as the short-of-abolition menu). MAYA—“most advanced yet acceptable”—is the slogan; the fight is over what counts as advanced.

Granting vs. recognizing, and why patents are the easy win. This is the technical point he repeats in the email and on stage because it is “arcane” and constantly missed. Patents are territorial. There is no world patent. Making or selling X in country D does not infringe A’s, B’s, or C’s patents. China cannot “steal” a U.S. patent by practicing the invention in China. If Titusville/Próspera has no local patent system, local research, manufacture, and even export to places without a patent do not violate anyone else’s patent. Builders can still file in the U.S., Europe, Japan, China. A tiny jurisdiction’s own patent office is expensive and unused. So refusing to create a local patent institution is both the principled move and, usually, costless for firms selling abroad.

Copyright is harder because Berne makes a work published in one country enforceable under another’s copyright law. That is why he talks about lighter enforcement, shorter terms, and exiting Berne rather than “patents don’t apply here.”

Political capital. Autonomy is scarce. He does not tell founders to spend their last chip on a symbolic patent code. He tells them to take the lightest lawful touch, teach residents and investors why that is a feature, and not build an examination corps they do not need.

Legislation test. If the city’s legitimacy story is common-law or Restatement-style judging, it should be reluctant to enact any rule that can only exist by “the decree of a committee of bureaucrats called ‘legislature.’” That test knocks out patent and copyright even for people who are not anarchists.

On Voss’s hypos he did not write full answers (not enough time), but the implications are direct: do not build a local grant system; training an AI model on copies is using information, not a special new wrong if copyright is illegitimate; a research exemption is at best a lesser evil that still concedes the patent; a generics plant exporting only to unpatented markets is not “infringing” those eleven countries’ patents by operating in Titusville.

How the two layers fit

Theory: property is for scarce means; IP is a nonconsensual burden on those means, born as privilege and legislation, dressed up as title in value and ingenuity.

Practice: abolition is the benchmark; in an IP-treaty world, a free city should create as little patent/copyright machinery as it can, exploit the territorial nature of patents, market “broken-system reform,” and spend scarce sovereignty on courts, tax, and medical speed—while refusing to treat IP as one of the sacred property rights the project exists to protect.

That is the same case in the first four minutes, the rest of the floor fight, and the August 31 email: not a dispute about whether inventors are clever, but about whether cleverness licenses a veto over other people’s already-owned things.

Summary of O’Beirne’s position (from Grok, based on the transcript and his pre-debate email exchange with Kinsella and Voss)

Brian O’Beirne’s case for IP, drawn from the debate and his email, is that intellectual property is a real form of property in human ingenuity, and that it is one of the few remaining individual defenses against concentrated corporate and financial power.

1. The political background, not a free-market baseline
He does not start from a clean libertarian society. He starts from a world in which corporate oligopolies already control most material resources and the means of production, aided by central banking and cheap credit. That order, he says, produces wage slavery, surveillance capitalism, pollution, and poverty. Libertarianism is a legitimate reaction to that: people try to wall off what is theirs. But he thinks the standard libertarian property story is too thin for that fight.

2. Critique of the scarcity / first-occupancy frame
On his reading, anti-IP libertarians treat property only as a conflict-avoidance rule for scarce, rivalrous things, allocated by first occupancy (plus contract and restitution). He objects on two grounds:

  • Almost no one alive today was “first.” Treating first occupancy as decisive either blesses the existing distribution or requires libertarians to say how they would reallocate it.
  • That frame treats ideas as free-for-all because they can be held simultaneously. He calls that unrealistic. Tesla’s patents do not stop an ordinary person from using a car; they mainly constrain other firms. The real restriction, in his view, is already the concentration of capital, not the patent.

He also blurs the material/idea line. Citing George Gilder, he argues that most of the value in physical goods is embedded knowledge (design, structure). Smash a Tesla and you still have the atoms; the value is gone. So “real” property already depends on ideas. Drawing a boundary around land is itself an idea. He treats that as a reason to see IP as the more basic form of property, not an exception.

3. What IP is supposed to protect
He insists the object is not “ideas” in the abstract but ingenuity: intelligence, industriousness, gumption. That is “the wellspring of human civilization,” neglected in an economy of alienated labor and scale, and overshadowed by talk of AI. Justice, for him (invoking the Roman “give each their due”), means the creator is owed respect for that creation. He calls this deontological, not merely utilitarian.

He answers the “IP limits what you may do with your stuff” objection by stressing symmetry and priority: you get the right only if you were first with something new, non-obvious, and useful; the other person has the same right if they invent. Statutory origin does not, in his view, make the right illegitimate (he rejects the genetic fallacy). In Ireland, he notes, IP has been treated as a constitutional individual right. Positive law is needed because these goods are “ethereal” and easy to misappropriate; the legislature sets parameters.

4. History and “the patent bargain”
That patents and copyrights grew out of privileges and statutes (Statute of Anne, Statute of Monopolies) is, for him, neither here nor there. Value can survive a bad origin. He also defends disclosure: the patentee publishes the invention so others can invent around it. Without protection, he expects creators to hide work. He treats term limits as compatible with property because rights are already qualified by the common good (Irish constitutional balancing; the drowning-man-on-your-land example) and because knowledge becomes obvious over time.

5. Reform, not abolition
He agrees the current system is “ridiculous”: thickets, trolls, life-plus-70 copyright, software patents. That is an argument to reform—return rights toward individuals, scale term to cost of creation (longer in pharma, shorter or none in software/AI)—not to abolish. Abolition tomorrow, he says, would give large firms free rein over everyone else’s inventions and works. They already own the presses and factories; without IP, they would take artistic integrity and inventor rents as well. Forced to choose between no copyright and the present “fascist” term, he would keep the present one, citing J.K. Rowling as someone who could not have built a career without it.

On empirics (Machlup, Boldrin & Levine, Lerner), he reads the literature as showing that expanding patents did not raise productivity—not that patents damage innovation. A wash, in his view, still leaves the creator’s right standing.

6. Free cities / network states
Pragmatism dominates here. Honduras is bound by CAFTA-DR / TRIPS-plus. Network states should not pick fights that threaten their existence. They should be opportunistic: whatever IP mix speeds innovation and draws builders (he points to Infinita). For jurisdictions trying to carve out sovereignty and win recognition, defending individual creation against a “globalist corporate oligopoly” matters more than whether the right comes from statute or common law.

In one line:
O’Beirne treats IP as property in ingenuity, justified by desert and by the need for a last individual foothold against oligopoly; the existing code should be trimmed and differentiated by sector, not discarded, and free cities should keep as much of it as diplomacy and growth require.

Summary of the Debate

The debate at the Free Cities Conference in Próspera (5 September 2026) was billed as two questions: whether intellectual property is ethically defensible, and what a free city should do about it. Alex Voss moderated Stephan Kinsella against Brian O’Beirne. Theory first, practice second, then audience. It did not “settle” the old libertarian fight. It did make the clash of frames unusually sharp.

Openings.
Kinsella used his four minutes for the scarcity argument he has made for thirty years. Property exists because means of action are rivalrous. Title comes from self-ownership, first use, contract, and restitution. Ideas guide action but are not scarce; patent and copyright are statutes born as Crown privilege and press control, not common-law title. They burden other people’s things, suppress innovation and speech, and should be abolished as privilege, not defended as property.

O’Beirne did not try to win on homesteading. He conceded sympathy for that libertarianism, then changed the terrain. The world is already an oligopoly of firms and central banks. First occupancy blesses a distribution nobody living made. What is left for the individual is ingenuity. IP is a last bulwark against that elite—not “ideas,” but intelligence and gumption. Bad historical origins (the genetic fallacy) do not settle present value. Network states should take whatever legal tools they can get.

The floor fight.
Kinsella pressed the counterfactual: in a free market with no IP statute, why would you create a penalty for using your own press or factory in a pattern someone filed at an office? “Corporations are too powerful” and “ideas deserve respect” are not title. Copying is how wealth compounds. Patents accrue to the same large firms O’Beirne fears.

O’Beirne granted thickets and trolls, then flipped the counterfactual: abolish IP tomorrow and those firms take every invention and book for free. Reform, don’t erase. Kinsella called that “free rein” freedom.

He then used the HOA hypo: a covenant not to paint houses orange is fine because it is consented. Patent and copyright are the same negative servitude without the burdened owner’s consent. O’Beirne answered with symmetry (you can patent too), first occupancy applied to novelty, Irish constitutional recognition of IP, and the need for statutes because inventions are “ethereal.” Disclosure, inventing around, and term limits were offered as the market-facing side of the bargain. InsiderWave and politician trades were his picture of a world without information rules.

Kinsella discarded symmetry: unjust rights stay unjust if everyone holds them. First to the patent office is not first to invent. He is also against trademark, defamation, and trade secret, so “it came from statute” is not his only brief. Deadweight lawyers and blocked independent inventors are enough.

Voss asked O’Beirne for reform and for justice versus utility. O’Beirne proposed sector-scaled terms (long in pharma, short or none in software/AI), called his view deontological (“give each their due”), and, with Gilder, treated knowledge embedded in matter as more basic than land lines. Kinsella put the Epstein question: no copyright, or today’s “fascist” term, if those are the only options. O’Beirne kept the current term (Rowling, publishers, integrity). Kinsella’s reply—cut in the recording—was that fortunes exist without the monopoly.

Practice.
On free cities both sounded pragmatic, then diverged on what “advanced” means.

O’Beirne: Honduras is in CAFTA-DR / TRIPS-plus. Do not suicide the project. Be opportunistic; Infinita-style speed; attract people who want protection.

Kinsella agreed on survival and MAYA, then argued the selling point should be less IP once investors are taught. Most Rothbardians already agree; utilitarians and Friedmanites lag. Lightest lawful touch: no treble damages, no criminal copyright, shorter terms, Founders’ copyright, no software copyright, exit Berne if possible. On Voss’s worry that skipping IP would scare off drug and device builders, he gave the territorial point: patents are national. No Próspera patent office does not stop a U.S. or EPO filing, and almost no one would file in Próspera anyway. Copyright is the treaty problem, not patents.

Audience.
A “from the future” speaker denounced IP as blocking simultaneous invention and praised pop-up cities. Someone asked O’Beirne why true property expires; he invoked democratic side-constraints and the drowning man on your land. Kinsella noted that consistent IP people (Galambos, some Randians, Schulman, Spooner) drop the expiry, and that the patent-bargain story fails because firms patent what selling would disclose.

On empirics, an audience member cited Machlup and a priori damage to innovation. O’Beirne read Boldrin, Levine, and Lerner as “expansions didn’t raise productivity,” not “patents destroy it”—a wash that still leaves the creator’s right. Fire and the wheel: O’Beirne said laws of nature and obviousness; Voss asked whether they were always obvious; Kinsella said they would have been patentable subject matter.

Trademarks: O’Beirne thought anti-IP libertarians were softer there. Kinsella ranked patents, copyright, defamation, trademark as the damaging cluster; knockoff seizures are reputation rights, not fraud prevention.

Drugs: Kinsella pointed to his FDA post. Patents patch a disclosure-forcing regulator; drop both and you get first-mover advantage and cheaper medicines. Controls breed controls.

Where they actually disagreed.
Not on “the current U.S. code is ugly.” Both said that. The split is whether ingenuity is a source of title that may burden strangers’ things, and whether oligopoly makes that title more necessary or shows why the privilege should not exist. For O’Beirne, abolition hands the field to the firms; IP is the individual’s remaining claim. For Kinsella, that claim is the firms’ tool, an unconsented servitude, and a free city’s comparative advantage is not a better patent office but fewer artificial vetoes—especially local patents, which do almost no work for exporters anyway.

They closed closer on tactics than on principle: neither told Próspera to pick a fight that kills the zone. O’Beirne would keep and tune protection as a draw. Kinsella would shrink enforcement to the treaty floor and treat that shrinkage as the product.

Additional information

 

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Transcript

Kinsella on Liberty Podcast: Episode 497

Debate: Should Free Cities Protect Intellectual Property?

Free Cities Foundation Annual Conference — Próspera, Honduras, 2026

Participants: Stephan Kinsella, Brian O’Beirne
Moderator: Alex Voss
Emcee / conference host (opening only)

Introduction and framing of the debate

00:00

Host: All right, do we have our next panelists here? Have we found Brian? Do we have Brian? Wonderful. All right, then we have everybody. We can start rolling into our next session.

As many people know, libertarians have spent decades, if not more, arguing about intellectual property rights. It shows no sign of stopping anytime soon, least of all today, which is why we’re welcoming up a debate on that very topic.

On one side, you have the Randians arguing that intellectual property is property. This is something that the government should help protect like any other property right. On the other side, you have folks arguing that because intellectual property is non-rivalrous, it’s completely incoherent to call it property at all and the entire term deserves to be discarded.

We are going to get to the bottom of this debate and stop all the arguing today, hopefully, if this debate is successful. This will be moderated by none other than Alex Voss, whose birthday it is today. Please be sure to wish him a happy birthday.

Please welcome to the stage Alex Voss, Stephan Kinsella, and Brian O’Beirne.

Alex Voss: Awesome, please come to the stage, gentlemen.

This is actually perfect that we have a few extra minutes here. We have a lot to cover. The intellectual property discussion is obviously one that has a lot of context, a lot of nuance. I want it to be largely a discussion between these two debating partners, and I’m here to sort of steer it.

The thing we’re going to do different than most debates on this topic is most of it stays very theoretical. And I want to cover this. I want to give the groundwork for it so everyone has the theoretical framework to think about this. But in particular, I want to think about how should we, in the free cities or the seasteading movement, think about intellectual property as we’re creating new jurisdictions. Is this something worth fighting for? If so, you know, what exactly are we fighting for? What do we want to enforce? These are the sorts of questions that I would like to sort of elucidate.

We’re going to spend about 50% of this time laying out the theoretical case. I’m going to let both of my debate partners here have their say to sort of lay out the case, and then we’ll shift about halfway towards a—not so much even a debate because it’s very context dependent, but a discussion about what are the factors that we want to think about.

With that being said, I’m going to ask both Stephan and Brian to give a four-minute opening thesis statement. What is your position? Are we for or against intellectual property? Why? What are the foundations? And then we’ll take it from there with a little bit of back and forth.

Stephan, if you don’t mind, could you kick us off?

Stephan Kinsella’s opening: property rights, scarcity, and why patent and copyright should be abolished

02:58

Stephan Kinsella: All right, I’d be happy to. Hello everybody. I’m happy to be here representing Ireland as well as my partner. So there’s one and a half Irish guys up here.

I started practicing law in 1992. I started practicing patent law in 1993. I took the patent bar in 1994. And I wrote my first article opposing patent law in 1995 and my big article opposing patent law in 2000 or 2001. So I’ve been opposing this legal system for quite a while.

And I thought I had encountered every bad argument and every argument for IP and rebutted it over the years, but actually I read Brian’s summary in our pre-debate discussions and it’s kind of a new argument. I think it’s still wrong, but he gave me a new one to knock down, so I’m really grateful.

Okay, quick summary.

We don’t live in the Garden of Eden. If we did, there would be no problems, there would be no action to perform, there would be no scarcity, no want, but we don’t live in the Garden of Eden. We live in a world where we face the future and we face uneasiness about what’s coming down the pike, and we have control of our bodies and we use our bodies, we control these bodies to use resources in the world to achieve things, right? We employ means to get things done. And we also use ideas or knowledge to tell us what to do, to guide our actions.

So all action involves the use of scarce resources, which are causally efficacious at achieving our ends, and the use of knowledge to guide us. If there was no other people around, you would still do this. You would act. You would use resources or scarce means to achieve ends.

But we live in society with other people, which has good things and bad things. The good thing is that we have other people to live around. We can trade with them. We can have the division and specialization of labor. But because we have free will, there’s always the chance of someone taking our scarce means of action which are inherently rivalrous and conflictable, right? So there’s the potential for conflict.

And because most of us don’t want conflict all the time, because it’s unproductive and inefficient and unpleasant, and we have some empathy for each other and we have self-interest, norms or laws develop which are property rights. So property rights are norms that support the ability to possess and use resources peacefully and productively and cooperatively with others.

What this means basically is the core principles of the Western private law since the Roman law and the common law and what libertarianism seeks to propose in a more consistent form, which are four basic principles.

Number one, the basic principle is: the scarce resource of your body is owned by the person himself. That’s called self-ownership as opposed to slavery. And then for these external resources in the world, which are owned, the owner can be determined by determining number one who started using it first, because original appropriation has to be one of the rules so that we can use these resources in the first place. Or if you acquired it by contract. Or if you are owed that resource in compensation for someone doing a wrong to you.

So those four basic principles are the core of all just private law and all libertarian justice and law.

And the problem with intellectual property is that it arose—when I say intellectual property I’m speaking of the two worst parts of it, which is patent and copyright. We’re going to leave trademarks and trade secrets and boat hull designs and database rights and moral rights and all that alone for a second. AI rights, newspaper headlines, all these newfangled rights.

So patent and copyright arose in statutes, not in the common law, in England and Europe hundreds of years ago with the practice of the Crown regulating what could be printed. That resulted in the Statute of Anne in 1710, which is modern copyright law, and the Crown granting privileges to protect their Crown cronies from competition in the form of patent-granted privileges. Which resulted in the Statute of Monopolies of 1623, which resulted in the modern American and then the worldwide patent and copyright systems.

Both of those systems suppress innovation, impede research and development, raise prices, and restrict freedom and property rights, and copyright censors speech and distorts culture, and they’re both totally inimical to just property rights in a private free market order and should not be called intellectual property but intellectual privilege and should be abolished.

Alex Voss: That was incredible. That was four minutes and one second. Thank you very much, Stephan. Brian, please, four minutes as well.

Brian O’Beirne’s opening: IP as a bulwark for individual ingenuity against oligopoly

07:32

Brian O’Beirne: I’ll try. Thank you, Stephan. I have a lot of sympathy for this position. That is libertarianism.

The problem I see with libertarianism is that we live in a world that has largely involved corporate oligopolies arrogating the vast majority of resources to themselves in pursuit of profit at our expense. Meanwhile, they impose negative externalities on us like pollution and poverty, and essentially expect us to live as wage slaves. And fundamentally, I think that the libertarian movement is a reaction to this. It’s an inward-looking turn that says, I’m going to get what’s mine, I’m going to cordon off from that which is around me. And I’m going to protect it to the hilt.

But I think the problem when it comes to IP is that it’s based on a number of—or at least Stephan’s position and those who agree with him—is based on some kind of misconception. This idea that there is no way that my IP rights matter because anyone else can hold my IP simultaneously.

So just to briefly recap the logic of the libertarians, they say, well, property rights are there to resolve conflicts over scarce material resources which cannot be simultaneously used. And to resolve those conflicts we look to who occupied them first. And the problem, they say, is that when I grant you an IP right, that is you controlling what I can do with my material property. And that is a limitation on what you can do.

I think this idea that I’m restricting what you can do with your property because of my IP right is kind of unrealistic. The truth is that patents that Tesla holds do not really affect the average person. The average person isn’t in a position to build an automobile from scratch. And this is true writ large.

We’re talking about a world where really most of the resources and the means of production are actually controlled and concentrated in the hands of a few. And that concentration has been facilitated by the collusion of a central banking system and the profligate printing of funny money.

And I say that intellectual property is one of the last bulwarks against this oligopoly. This is one of the last enclaves of human freedom that can resist the arrogation of this rapacious elite. And essentially that this is something, therefore, that we should defend vociferously.

What are we defending? It’s not just ideas. It is the right and the property over your human ingenuity. Right? Your intelligence. We’re also obsessed with artificial intelligence. We’ve forgotten about human intelligence. This is the wellspring of human civilization.

And whether it has been granted through monopolies in the past is neither here nor there. This is just the genetic fallacy. Because something has a bad origin, right, does not mean that there is no value in it.

And I think this kind of argument should appeal to network states which are based upon legal hacking, right? We’re going to take whatever we can get. Because the urgency of our situation is defending the individual against the oligarchy that would enslave us.

Alex Voss: Also really incredible job. Just about four minutes on the dot. Stephan, I think I’d like to open this up a little bit—debate between the two of you. Do you have questions for each other that you’d like to try to poke holes in? In particular, you know, Stephan, you just heard Brian’s position. Where would you push back on that?

Rebuttal: IP as a nonconsensual negative servitude; patents empower corporations, not lone inventors

11:41

Stephan Kinsella: So imagine that we had a roughly libertarian society, a free market with no intellectual property, no patent or copyright statutes, and someone comes along and says, Um, I propose that there’s a penalty for someone using their own resources in a certain way without permission from someone else who filed a design for this iPhone or something like that with some office.

And you say, well what’s the reason that you want to restrict the freedom of people to compete and to sell things? Or you want to impose a copyright statute or legislate that—when before people had the right to copy information that’s available publicly and they could do whatever they want with their own paper and printing press and ink. And you want to say, well, we should let the government grant these rights that the originator of a pattern can use to prevent someone from using their property.

And your answer would be: well the corporations are too powerful and we need to—and innovation and ideas are good. So we need to recognize that somehow. Like we need to give ideas a pat on the back by giving them equal respect with scarce resources. Right.

But as I mentioned in the beginning, we live in the world and we use ideas to guide our actions and we use scarce resources to cause things to happen. Because there’s conflict over those scarce resources we need to be able to be the first one to appropriate it, which is why we have homesteading or original appropriation, and we need to be able to transfer them by contract.

But ideas can be used and copied freely, and this is the reason why the human race is richer now, is because ideas can be copied freely.

And finally I would say that in today’s system of corporations, as you mentioned with the Tesla case, although Elon Musk forswore the use of patents defensively because he knows that he wanted a free market, but most corporations have all the patents and have the power. And so patents do not liberate the individual inventor. They are accumulated by large corporations and help form cartels and oligopolies and increase the power of these corporations. So patents don’t help the individual inventor, they help the corporations in the first place.

Brian O’Beirne: I would say that the ills that you’re describing are certainly true. The patent system has become ridiculous. Patent thickets and monopolies and patent trolls are all a major problem. However, that’s an argument for reforming the patent system and trying to return some of the rights back to the individual.

But more importantly: if you essentially abolish IP rights tomorrow morning, what do you think will happen? What will happen is that all of these corporations will suddenly have free rein over every inventor’s inventions, over all copyright, over all creations. Right? So the counterfactual is worse, even than the current system, which is admittedly terrible.

Stephan Kinsella: Yeah, see I would see that having free rein is freedom. I think it’s a good thing that more information can be used by corporations or by individuals. For innovation or for remixing or for artistic works.

Let me ask you a question since you’re a fellow attorney and I assume you have some pro-property-rights libertarian leanings. Imagine that you have two homeowners or three homeowners in a neighborhood and they both want to enter into an agreement to restrict their right to have an ugly house, right? So they agree into a restrictive covenant, which is a private contract, and they all agree not to paint their house orange. So this is like a homeowner association or we call this a negative easement or a negative servitude in the law. I assume you would think that’s a legitimate contract, right?

Brian O’Beirne: Yeah.

Stephan Kinsella: Right. So in my view, what patent and copyright do is it grants a negative easement or a negative servitude to the inventor of a design or copyrighted work without it being consented to by the burdened estate. So this is ultimately the problem with patent and copyright: it is a nonconsensual negative servitude. It’s just like the difference between rape and voluntary sex is the issue of consent.

Symmetry, statutes vs. common law, disclosure, and “giving each their due”

15:54

Brian O’Beirne: Yeah. It’s an interesting argument, except that I think this goes to a lot of the issues that you raise about it being illegitimate because it’s created by statute and not by common law.

IP rights are still symmetric. Okay, so if I have a patent, I may be able to restrict what you do with your property. The restriction will only apply because I got there first, which is the first-occupancy rule except for ideas. And it must be new, non-obvious, useful, something that you wouldn’t have otherwise come up with, right? The point is that I am being given a right over my creation and it would not otherwise exist were it not for me. That’s protecting the ingenuity.

But the more important thing is it’s symmetrical. You also have that right over me. If you come up with a patent, if you come up with an invention, you can likewise prevent me from misappropriating that. So you see this isn’t really a sound argument, right?

And the fact that statutes—whatever you think about them—in Ireland, it’s interesting as I was researching this debate, right, that it’s true that like you don’t really have copyright at common law. You don’t really have these. They do originate with the Statute of Anne and so on. But in Ireland we have a case of the property right in intellectual property being recognized as part of the constitutional rights of the individual.

So this idea that they cannot be valid because they’re stipulated by a legislature, I think, is a mistake. The reason the legislature has to step in and impose some kind of parameters through positive law is because the nature of the goods in question are more ethereal. Right? Inventions can be misappropriated more easily. And therefore, to defend property rights like these, you do need some kind of constructive approach to defining their parameters.

And yes, they can be ridiculous. They’ve gotten it wrong. The Federal Copyright Act in the United States is absurd. Lifetime plus 70 years. Patents you can argue about whether the term is valid there. But when you are given these IP rights by statute, you also promise to do various things in exchange for them. You make a full disclosure of your patent so that everyone can see how you invented the thing you did, which enables other people to invent around that patent, to see the insights underneath that patent, and essentially to continue innovating.

So I’d say if we really care about the free market and information symmetry, this is a really good way of going about it. On the other hand, if you offer no protection to inventions in this way, then I think that what’s more likely is that people will be far more coy about communicating what they create.

The truth is that the free market doesn’t really exist in that sense. There is no perfect symmetry of information. The stock market is driven largely by insider trading and access—like if you know this new application InsiderWave, there’s extraordinary alpha you can get by following the trades of politicians.

So I think that the role of property rights in the case of IP is to also promote this, to impose reasonable limits like time limits on the property, and ultimately facilitate the free market while respecting the property rights of those inventors.

Stephan Kinsella: All right. I could care less about symmetry. I care about justice and property rights.

As for the genetic fallacy, my argument against patents and copyrights does not depend upon the fact that these rights originate in statutes. In fact, I’m against trademark and defamation law and trade secret law, even though they did originate in the common law. So sometimes the common law gets it wrong. Which is why we have libertarian theorists who look at the positive law and criticize it.

The patent laws, I’m sure you know, do not actually guarantee that a patented invention is unique. It only means that you’re the first one to the patent office. So you could easily have someone come up with an invention that is already patented and you came up with it on your own and then you’re prevented from practicing it. That’s clearly unjust.

So there are just so many examples of the injustice of the patent and the copyright system. And the fact that it’s symmetric—yeah, if you have a legal system that imposes a right on everyone in society, but the right is unjust, it might be symmetric, but it still is a deadweight cost, and all these patent lawyers have to be paid to maintain this system. It’s just a deadweight cost on society and it still reduces innovation. So it would be better to get rid of the fault.

So if you gave everyone the right to sue each other for defamation, yeah, that would be symmetric, but it would still be unjust. If you gave everyone the right to sue their neighbors for welfare or for support if they get poor or to pay for their health insurance. Yeah, that would be symmetric, but it’s still not just. So being symmetric is not enough for justice.

Alex Voss: Brian, real quick, I want you to respond to this question about justice versus your utilitarian view of it. Maybe you can also lay out—you’ve also mentioned earlier you don’t think that the existing IP situation, particularly as it relates to the United States, is right, it’s ridiculous or whatever. How would you do it so that it would work a little bit better? You answer that, we’ll respond just a bit, and then I want to turn in about five minutes over to this more practical free-city question as it relates to it.

Reform proposals, labor and ingenuity, and whether knowledge is the more basic form of property

21:31

Brian O’Beirne: Yeah, I think it’s quite an onus. How do you reform the whole patent and IP system? But I have an idea.

So I think that like what really matters, or one of the things that really matters, is what is the cost of creating the invention for you? This is like an argument that frequently comes up in the case of pharma, right? Because companies, pharma companies pour millions of dollars into research and development. And if there’s no IP rights then the competitor can just swoop in and copy it at zero cost, right? Or zero marginal cost.

So I would say that a sensible system would actually segment the economy for IP by sector. And look at what kind of costs were imposed on the creator and have a proportional restriction based upon that, right? So you would say like pharma should probably have longer patents, whereas something like software, which is already a bit of an aberration in patent law, really shouldn’t because you know it’s quite—it’s very easy now with AI.

So I would say that that would be one of the things I think I would take into account, like more sensitivity to the types of efforts that inventors are putting in.

And yeah, in terms of this question of justice, symmetry doesn’t necessarily equal justice, but it is a big part of it. And I would say that the concept of justice from Roman law is to give each their due, right? I would say that it’s fundamentally an individual conception. It’s about what are you owed, right?

And I think that it is self-evident that if it matters so much that I am the first to draw an imaginary line around a tract of land, well that itself is a kind of idea. Right? Like saying that there’s this hard distinction between real property and IP, I think actually real property is more like a restriction on IP, which I think is the more basic form of property, because everything that we have, all personal property that we have, as George Gilder argues, is actually valuable because of the knowledge that has been embedded within it, right? The idea, the design, the structure it embodies.

And he says, for instance, that if you have a Tesla and you smash it to pieces, you still have all the atoms, it’s the same matter, but obviously it’s not as valuable anymore. So I’d say that this is probably a deeper metaphysical argument that I would get into about Cartesian dualism and the mind-matter distinction. And you know, libertarians I think are very fixated on this idea of the material. But it’s like I think that the mind is in there in the mix. It’s just latent. And already we are imposing imaginary lines around tracts of land and really the line is a lot blurrier than I think is admitted.

Stephan Kinsella: Let me ask a quick question of Brian. A question I asked of Richard Epstein when I debated him on this topic at the Soho Forum in New York a few years ago.

It used to be about fourteen years in the beginning, the Founders’ copyright, and now it’s 150 or so something typical. If you could choose only to either abolish the copyright statute or to have the current one, but you couldn’t have the fourteen-year term that’s reasonable in your view, which one would you prefer? To have no copyright or to have the current fascist copyright?

Brian O’Beirne: Not a loaded question at all. I mean yeah, it’s like stuck between a rock and a hard place. I would say that I would say that it’s the current one. And I would say that because there are many authors who could not build a capital structure to get their works published and distributed absent a right to their creation. It would be taken by a corporation who already owns the means of production. And it will be—first of all, there’s no guarantee they would maintain the artistic integrity of their creation, ’cause suddenly it’s the property of the corporation entirely. Okay?

And so I would say that if you look at—I mean like there’s obviously abuses, it’s obviously not perfect. If you’re forcing me to choose, I would choose this. And not to be trite, but I would say someone like J. K. Rowling, right? You have a single unemployed mother who went on to become a billionaire. I doubt that she would have ever had the chance to do that were her copyright in her work not protected. So yeah, if you’re forcing me to choose the other thing, you can’t do that.

Stephan Kinsella: …worth hundreds of millions of dollars even without copyright. So there’s ways you can operate around the system if you have to be creative if you can’t depend upon government-granted monopolies.

Alex Voss: All right. Thank you very much. I think this is helpful to lay the foundations. We keep your question in mind. We may have time for questions at the end.

Practical question: should free cities seek autonomy in IP law?

26:35

Alex Voss: What I’d like to do now is turn towards, okay, you’re here in Próspera. We have other free cities that are coming up along the way. All of these work within the sovereignty of host nations. Host nations as sovereigns are party to international treaties, they often have intellectual—almost every country on earth has intellectual property laws. There’s what two or three that don’t.

Autonomy is a big important piece for free cities. Is autonomy in IP law one of the core things that we should go for and push for? And if so, if we have it, what exactly, which piece of it is really important? Should we have our own copyright law or patent law? Is that how we attract builders to come here to Próspera?

Brian, maybe you can answer that first and then Stephan.

Brian O’Beirne: Yeah, I think in the case of Próspera, Honduras is a signatory to the CAFTA-DR treaty, which binds them to TRIPS or even a higher level than TRIPS. And so, you know, I think it’s important to be pragmatic when you’re running a network state. I think like you have to recognize that the wolves are at the door all the time. And so I think it’s really important to not do things that are going to compromise the existence of your network state. And probably that is the overall organizing principle in my philosophy for what Próspera and other network states should do.

That being said, I also think that you should be opportunistic. Right, that you should try to just do whatever maximizes the speed of innovation here and whatever configuration of IP rights that that requires is what you should adopt. I’m sure there’s lots of like details that are missing there.

But I think like Infinita is a great example, where they have managed to speed up development and are now expanding into Montana. I think it’s wonderful and it’s super interesting. And I think that that is the proper approach, right? That really the advantage that network states have is speed of innovation and trying to avail of whatever exemptions there are in IP, encourage people to come here if they want their IP protected. And doing that kind of thing I think is what’s going to maximize adoption and growth, which is what really matters.

Stephan Kinsella: I completely agree with that. I do think pragmatism is called for. We want these things to succeed.

What was the acronym I heard yesterday? Is it MAYA?

Alex Voss: Yeah, MAYA: most advanced yet acceptable.

Stephan Kinsella: Yeah. And so but then the debate is over what’s advanced in this case.

So I think most investors and most businesses, most outsiders interested in a free city—they’re already sold on the idea that lower taxes is better, lower regulations is better. Unfortunately because of the pervasiveness of the mistaken view that intellectual property is a legitimate property right, that’s not so obvious to everyone. But it is widely held that the current patent systems and copyright systems are so-called broken and need quote reform. So at least we have that going.

So our task is twofold when it comes to IP because there are international treaties that we have to respect or national laws. So we have to educate investors and others that having reduced intellectual property protection is a good thing. And to do that, we have to believe it ourselves. So we have to educate the libertarians first who are part of these projects. Luckily I’ve done all that already.

So most anarchist and Austrian and left-libertarians and Rothbardian libertarians in the last twenty years already pretty much agree that patent and copyright law are bad, all right? Principal libertarians. The utilitarians—we still have a ways to go with them and the David Friedmanites, you know they’re not really sure. But by and large libertarians understand that patent and copyright are bad.

So we have to educate the investors and the people that would—the customers and the people who would live here. In the meantime, because there’s widespread agreement that the current system is broken, then what I would think is that the free city should adopt as the lightest touch they could on patent and copyright, enforce it the lightest way possible. Don’t have treble damages. Don’t have criminal penalties for copyright infringement. Have a lower term. Don’t have the extra 20-year term that the U.S. is trying to ever make everyone else agree to. Get out of the Berne Convention if you can and just go back to the Founders’ copyright of the U.S. beginning. Things like that. Reduce the scope of copyright law so that it doesn’t cover software.

So if you have a lighter touch and you say that we’re doing everything we can to comply with international law and municipal law, but in the interest of maximizing freedom of operation, freedom of action of the entrepreneurs, I think that’s the way to go.

Alex Voss: So Stephan, let me ask you a question. I find your argument that you can’t figure out a business model is not my responsibility. There’s this justice aspect to it. And I buy that on the individual level.

What I am I guess a bit conflicted about is if I’m Próspera and I want people to come here and innovate. Próspera is a small jurisdiction relative to the global market. No one is creating drugs to sell here in Próspera. They’re creating drugs to sell them in the U.S. and beyond. If we don’t protect intellectual property here, do we put at risk the very successes that Niklas Anzinger and Infinita and the rest of the builders have come here to do. How do you respond to that?

Stephan Kinsella: Yeah, so that’s an easy one because most people don’t understand this because it’s arcane. Unlike copyright, which is municipal or local, but is governed by the Berne treaties, which means that a work published in one country is enforceable under the copyright law of another country. That’s not how patent law works.

So patent law covers inventions and patent law is municipal and national only. So whether or not Próspera has a patent law is totally irrelevant because like you say, you’re not making the stuff here, you’re not selling it here, the customers aren’t here. There’s nothing in the fact that Próspera say has no patent law that prevents an innovator of an invention here from filing a patent in the U.S. and in Europe and in China and Japan and Canada or wherever they want to do it. So it would have zero effect on that. So it wouldn’t be a hindrance at all.

And by the same token, I doubt any—even if you had a patent law here, I doubt anyone would use it because when you file patents, it’s expensive to file it in all two hundred countries. So most people usually file in the U.S., Europe, maybe Japan, maybe China, and that’s about it, because the maintenance fees and the filing fees are very expensive and the translation fees, they’re all very expensive. So Próspera, whether they have a patent law or not, is probably totally irrelevant.

Alex Voss: Okay, I’d like to open it up to the audience. If okay, we do have a lot of questions, so—

Audience: pop-up cities, protocol over statute, and simultaneous invention

33:39

Audience member 1: Hello everyone. I have a good news for all of you. Intellectual property will be disappeared very soon. I’m coming from the future and I know.

So I get lost in this debate. So many laws, so many rules. It’s already conflict between those. And I lost the main idea. Should the free city protect intellectual property? Not.

It’s already a good example. Pop-up city already exists. People coming from different parts of the world, the same idea, develop it, and create new product. And well, it’s actually a lot of historical examples exist. Sorry my language, I’m still learning. I’m from the future.

Just give me one moment. I’m coming to this. It’s not a question, it’s a statement. So anyway. No, just a second. I finish. Let me finish.

So basically, intellectual property inside of the free cities should be based on the protocol. It should be simple. We’re not thinking the thoughts. Thoughts coming to us. And sometimes thoughts coming in the same time to different people, to different parts of the world. And I truly believe this property rights—they are stopping invention, stopping progress. So pop-up city the best model for the future city. So this is a statement.

Audience: if IP is property, why does it expire?

35:22

Audience member 2: Yeah, so my question is primarily to Brian. You know, if you truly believe that intellectual property is property, why is there an expiry date? What other property has an expiry date and why would property that I truly own revert to the commons after some period of time if it is truly my property, rather than just a utilitarian benefit to encourage innovation?

Brian O’Beirne: Well property isn’t always like—property comes with qualifications in a democratic society. I know this might not be necessarily a libertarian viewpoint. But I mean, in Irish constitutional jurisprudence we always have a balancing of constitutional rights with the common good, right? It’s a side constraint on the overall public welfare.

And the idea that there’s this some kind of absolute hermetically sealed right to your property doesn’t even stand ethically. Right? If I see you drowning in a lake on your land, should I not enter onto your land to save you?

But I just find it kind of like it’s a little bit too simplistic. I think that it absolutely should always be a priority, and any constraints do need to be rigorously justified and minimal. But the idea that because there’s some kind of temporal limits, I think that doesn’t—you know, I don’t really understand the importance of the absolute chronology there.

If it’s truly property, why would I have lost? Yeah, that’s my answer. I think we have a different understanding of what the definition of property is.

Stephan Kinsella: Your question actually gets at something that many people have noted. The more consistent intellectual property advocates actually do advocate for perpetual copyright and patent terms like Galambos, the nut, and Ayn Rand—some of my Ayn Rand followers—J. Neil Schulman, and Lysander Spooner. So the more consistent IP advocates do that. The ones that don’t want to see the human—hello? Hello.

Yeah, so and one other point of that Brian raised earlier. He said that the benefit of the patent filing is that the invention is disclosed to the public. I’ve got a post on my site, c4sif.org, where it’s called the myth of patent law. There’s been many studies by Judge Easterbrook and others which show that there’s a fallacy there, and the fallacy is this.

You have trade secret law. You can keep an invention secret if you want. Or you can file a patent and disclose it. In practice, most companies, if they’re able to keep their inventions secret, they will keep it secret with a trade secret. And they only get a patent on the types of inventions that they have to inevitably disclose when they sell the product anyway.

So actually the patent bargain is that you get a seventeen-year monopoly on your invention in exchange for disclosing to the public something they wouldn’t have known that you would have kept secret. It’s actually not true because when you sell a new iPhone, everyone sees what it is, right? So it’s disclosed by virtue of selling the product. So the patent bargain is a gyp to the public.

Audience: justice vs. consequentialism, and empirical studies on innovation

38:21

Audience member 3: Okay, so my question is for Brian. So I think Stephan made a very convincing case from the point of view of justice against intellectual property rights. But as I understand it, your argument is more like utilitarian or consequentialist. So how will you respond?

Because I think also Stephan has showed, not right now, but in his works on intellectual property, that intellectual property is an obstacle to innovation and it damages the development of new ideas. He has showed it from an a priori case, but even if you don’t agree with a priori economic science, there’s also empirical cases—like the investigation from Fritz Machlup and I think every extensive investigation on intellectual property shows that it’s an obstacle and it damages innovation. It does not do any good to it.

Brian O’Beirne: I think I’m familiar with some of those studies like Boldrin and Levine and Lerner and stuff. And I think what they show is not that it necessarily damages it, it’s just that patent expansions didn’t promote productivity. That’s how I’ve read those studies: it didn’t show a relative increase in productivity, which is not the same thing as it damaging productivity. Right, that’s different.

And if it didn’t have a net effect, then it’s a wash and you should respect the property rights of inventors to their creations. Right.

And I think that that is like—I wouldn’t necessarily say my argument is utilitarian. I would say it’s deontological. I would say that as a creator of an invention, your ingenuity should be respected. It’s not just labor, which I think is the more common argument. And like this Lockean argument that if you mix your labor with something, it doesn’t matter unless you own the inputs.

My point is that there is an intelligence and an industriousness and gumption that is involved in creation of things that has been totally disrespected in the modern economy, that’s based on alienated labor and scaling. And I think we have to get back to respecting the rights of individuals to their creations because you cannot ultimately segregate the two.

Audience: fire, the wheel, and patentable subject matter

40:38

Audience member 4: Aloha. Thanks. This is a question for Brian. Brian, what if the person who invented the fire or the wheel decided to copyright their work? Do you think the society would have evolved as it has evolved today?

Brian O’Beirne: The—did you say the fire?

Audience member 4: The fire or the wheel? Both.

Brian O’Beirne: Yeah, I mean well this is why patent law contains restrictions. You cannot patent laws of nature. You cannot patent things that are obvious, right? Again, it isn’t like you can just patent any idea. The point is that if it’s novel, new, and non-obvious and somebody hasn’t already figured it out, then you are the first there and you have the right to that as its inventor.

Alex Voss: …is obvious to us right now, but was it always? I don’t think so. Curious.

Brian O’Beirne: But then that’s an argument in favor of the term limits, right? Because human knowledge and invention evolves and it should have a sunsetting clause because things do become obvious. If fifty years from now AI is going to seem super obvious, right? And probably there shouldn’t be any patents related to AI at that point. But it’s admitting the evolution of knowledge and human ingenuity. And that’s another justification for term limits.

Stephan Kinsella: Fire and the wheel clearly would be patentable subject matter. I guess the utilitarian could argue that back in the dawn of history, humans would have gotten fire seventeen years earlier or something if we had had a patent system. But unfortunately we didn’t.

Audience: trademarks

42:07

Alex Voss: We have two minutes, so we can ask some questions, keep it in mind as you answer. I have one.

Audience member 5: So what about trademarks? I’m over here. Over here. What about trademarks? Is there consensus that they’re basically bull crap or what?

Brian O’Beirne: I think trademarks are interesting. Trademarks are something that don’t seem to be as problematic to libertarians who don’t like IP. Even though like trademark dilution is created by statute, it is created over something that is, you know, trade dress and trademarks are almost like protection of style. And I think I guess it’s up to the libertarians to let us know what they think about that.

Stephan Kinsella: Quick answer. Most libertarians are with me on patent and copyright. Some are with me on trademark, which should also be abolished. Here’s the priority.

Patents are the most evil law that we have, probably. They do the most damage to the human race. Copyrights are next. Defamation law is next, which is also a type of intellectual property which people don’t recognize because it protects a reputation right, which is what trademark also protects, which is the worst—next worst. Trade secret law is down there and then database designs and moral rights, semiconductor mask work protection, those are all fairly trivial.

But trademark is one of the four top most damaging laws because it does not protect consumers from fraud. That’s actually a fallacy. It actually gives a reputation right to someone who uses the mark in commerce, which is why Chanel can seize knockoff purses that are trademark violations even though the consumers buying those purses are not defrauded at all because they know they’re buying a knockoff.

Audience: pharmaceutical patents, the FDA, and first-mover advantage

44:03

Audience member 6: I have a question regarding medical use of patents for drugs to Stephan. Mainly because—regarding what’s your question?

Regarding the medical field. Yeah, regarding drugs. Because we currently have the situation mainly in the U.S. that patents are for twenty years for drugs and they are mostly known than the drugs. So if we wouldn’t have that patent system, wouldn’t we have some kind of obfuscation which would lead to the case where it would take longer than twenty years for the competing companies to figure out a similar drug?

Alex Voss: Okay, quick answer. We’re getting very close to time.

Stephan Kinsella: Okay, a quick answer. So just find—go to my website c4sif.org and look for the post about the FDA, a modest proposal.

But the short answer is that first of all you can extend patents that are delayed by regulatory delays. But the problem there is the FDA system itself. Without the FDA, which forces companies to reveal their secrets during the approval process, enabling competitors to be ready to compete with them, then they would have a faster and cheaper process to get to market and the competitors wouldn’t know what they were doing. So they would have a first-mover advantage like you have in the normal free market.

So without patents and without the FDA you would just have a more lean free market and cheaper drugs in the first place. So most people think you need patents to patch the problem of the FDA. So you have one government system being used as a patch for another, which is what Mises says: that controls breed controls. So the right solution is to get rid of the patent system and get rid of the FDA. But even if you have the FDA, you still don’t need patents, as I explained in that post.

Alex Voss: Okay, a big round of applause for our debate partners.

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  1.  KOL038 | Debate with Robert Wenzel on Intellectual Property; KOL123 | Debate with Jan Helfeld on Anarchy vs. Limited Government. [↩]
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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).

Hoppe A Life in Liberty, cover

Rothbard at 100 final cover May 13 2026

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Kinsella Adopting Liberty cover

Kinsella Against Intellectual Property cover

Kinsella Louisiana Civil Law Dictionary

International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide, Second Edition cover

Liberty Magazine Archives

My Failed Libertarian Speaking Hiatus; Memories of Mises Institute and Other Events, 1988–20192025

[From my Webnote series]

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Libertarian Answer Man

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