KOL055 | The Voluntary Life Author Interview: Stephan Kinsella on Against Intellectual Property (2010)

by Stephan Kinsella on May 18, 2013

Kinsella on Liberty Podcast, Episode 055.

This is from The Voluntary Life, Author Interview: Stephan Kinsella on Against Intellectual Property (March 20, 2010; also podcast as Episode 1616 of Freedomain Radio, as Stefan Molyneux joined in too). Interviewed by Jake. See also their interesting episode Against Intellectual Property: A Follow Up Discussion.

Shownotes

Episode Title:

KOL 055 – The Voluntary Life Author Interview: Stephan Kinsella on Against Intellectual Property (2010)

Guests:

Stephan Kinsella (registered patent attorney, libertarian theorist, Director of the Center for the Study of Innovative Freedom, editor of Libertarian Papers)

Host: Jake (The Voluntary Life)

Special participant: Stefan Molyneux

Length: Approximately 70 minutes

Overall Summary

In this 2010 interview, Stephan Kinsella explains the core arguments from his influential monograph Against Intellectual Property. He describes his intellectual journey from initial agreement with Ayn Rand’s view of IP as an extension of property rights to the firm conclusion that any form of state-enforced intellectual property is incompatible with libertarian principles and the non-aggression principle.

The discussion explores why ideas and patterns are not scarce resources capable of being owned, the critical distinction between voluntary contracts and coercive state IP, the initiation of force inherent in patent and copyright enforcement, and practical injustices caused by the current system. Kinsella and callers examine incremental invention, government-created dependency on IP, reputation rights, and how a free society could function without state-granted monopolies on ideas. The interview emphasizes that legitimate property rights arise only from homesteading scarce, rivalrous resources, not from government privileges over non-scarce information or potential future profits.

Detailed Summary

Introduction

Jake introduces the episode and provides background on Kinsella’s monograph Against Intellectual Property, first published in the Journal of Libertarian Studies in 2001 and later released as a free book by the Mises Institute. He outlines the historical context: how most mid-20th-century freedom-oriented thinkers, heavily influenced by Ayn Rand, viewed intellectual property as a natural extension of property rights. The host contrasts this with Murray Rothbard’s partial criticisms and highlights Kinsella’s unique contribution—demonstrating that IP is a state-enforced legal convention fundamentally at odds with the non-aggression principle.

How Did You Get Interested in IP?

Kinsella recounts his personal path: discovering The Fountainhead in high school, studying engineering, then attending law school where he deepened his interest in libertarian theory. He describes his early sympathy with Rand’s arguments on patents and copyrights, followed by growing doubts as he studied libertarian principles more rigorously. While practicing IP law, he concluded that Rand’s theory relied on ad hoc utilitarian reasoning and ultimately lacked justification. He explains the abstract nature of his critique, the writing process in the mid-1990s, and how the rise of the internet later amplified the practical problems with IP, making his arguments more relevant.

The Scarcity Question

A caller challenges Kinsella’s emphasis on scarcity, arguing that while ideas themselves may not be scarce, the exclusive economic profits or advantages they generate are. Kinsella responds by grounding property rights in the Lockean homestead principle applied to scarce, rivalrous resources. He distinguishes between physical means (which are scarce and require ownership to avoid conflict) and non-scarce information or patterns that multiple people can use simultaneously without conflict. Using praxeological analysis, he explains why ownership is necessary for means of action but not for the guiding information or recipes. Concrete examples, such as razor blades and superior cotton-harvesting techniques, illustrate why potential future profits or “value” cannot legitimately be treated as ownable property.

Contract Law and IP

The conversation shifts to whether IP could be managed through voluntary contracts rather than state law. Kinsella agrees that private contractual arrangements for secrecy or exclusivity are fully compatible with libertarianism and anarchism. However, he stresses the vital distinction between such “private IP” and the current state-enforced “public IP,” which binds third parties who never signed any contract. He explains that the essence of patent and copyright law lies in its power to affect non-contracting parties, including through bans on reverse engineering and independent invention. Kinsella criticizes vague libertarian proposals for alternative IP systems, noting that most advocates avoid clearly defining what they support.

Common Law

Discussion turns to how a free society would handle exclusivity issues under common law or contract principles rather than statutory regimes. Gray areas are acknowledged as inevitable. A caller raises the concern that IP creates a de facto lien on all physical property worldwide (e.g., a copyrighted limerick restricting others’ use of paper and ink). Kinsella addresses literal copying versus broader derivative-works rules, providing examples such as background architecture in films, vacation photos, and cultural osmosis of characters like Superman. He clarifies that limits on using one’s property (the “knife” analogy) stem from respecting others’ bodily property rights, not from weakening one’s own ownership. Property rights are fully defined by homesteading scarce resources; IP improperly adds an extra layer of control.

Future of IP

Speculation arises on whether IP will become unenforceable due to digital technology or face a stronger state clampdown. Kinsella compares it to the drug war—absurd yet persistently enforced. He argues that learning, emulation, and the free sharing of information are positive drivers of human progress and civilization. He suggests creators should focus on reputation and avoiding obscurity rather than relying on legal monopolies. Markets and young internet culture, he believes, would adapt even without copyright, though the exact shape of big-budget productions remains uncertain.

Government Dependence and Incremental Invention

Stefan Molyneux notes that IP makes artists and cultural elites dependent on the state, fostering loyalty similar to welfare-state dynamics. The group discusses how most innovations are incremental improvements built on thousands of prior contributions rather than isolated “great man” achievements. Kinsella critiques the exaggeration of individual creators and the arbitrariness of patent and copyright standards, which are vague, subjective, and change over time. He contrasts derivative-works restrictions in copyright with the ability to build upon (but not freely use) patented inventions.

Bribery – Government Raising Costs and Bribing with IP

The discussion highlights how government regulations, unions, FDA rules, taxes, and tort law dramatically raise costs for industries like pharmaceuticals and filmmaking. IP extensions then function as a form of bribery to keep these industries viable and politically loyal. Antitrust laws prevent private contractual alternatives. Utilitarian arguments for IP can logically lead to government-funded prize systems or subsidies. The result is more conservative, mass-appeal media and fewer challenging or niche works, as people grow attached to the distorted status quo.

Use of Force

A caller focuses on the central libertarian issue: where does the initiation of force occur in IP disputes? Kinsella uses a simple caveman/hut example to show that copying an idea is not aggression, while destroying the copycat’s physical property is. In the modern system, patents lead to court-ordered seizures, injunctions, and jail for contempt. He argues that supporting IP means siding with state force against peaceful producers and independent inventors. The lack of a copying requirement in patents makes the aggression especially clear.

The IP Argument – Profits, Independent Invention, Value, and Reputation

Extended debate covers whether “stealing future profits” constitutes aggression. Kinsella explains that patents block even independent invention and provides examples like Amazon’s one-click patent. He critiques objectivist views on labor, value creation, and reputation rights, which he sees as another form of IP. Drawing on Rothbard, he notes that value is subjective and exists in others’ minds. Creation is neither necessary nor sufficient for ownership—transformation of already-owned scarce resources is what matters. The unseen opportunity costs of IP and the unrenounceable nature of copyright (“roach motel”) are also addressed.

Monsanto, Organism Patents, and Submarine Patents

Concrete injustices are examined: U.S. patents on living organisms that extend to future generations, Monsanto suing farmers for pollen drift, and the patenting of ancient heirloom seeds. “Submarine patents” (delaying issuance to ambush mature industries) are described with the Jerome Lemelson example. Pro-IP responses typically dismiss each example with “I’m not in favor of that” without offering a coherent positive alternative.

Closing and Kinsella’s Current Work

The interview wraps with thanks to Kinsella. He briefly discusses his ongoing projects, including a collection of legal theory essays and a planned book on common libertarian myths and misconceptions. He also provides an update on the success of Libertarian Papers, the journal he founded in 2009.

Key Resources

Against Intellectual Property by Stephan Kinsella (free at mises.org)
Libertarian Papers – libertarianpapers.org

This episode remains a foundational discussion of why consistent libertarians should reject state-enforced intellectual property in favor of genuine property rights in scarce resources.

Transcript

Here is the complete, corrected transcript of the 2010 interview from The Voluntary Life (also on YouTube).

All original content is included with no omissions.

Speaker names are clearly labeled.

Long blocks have been broken into smaller paragraphs of 7 sentences or fewer for easier reading.

Filler words and minor stutters have been lightly cleaned while preserving every idea, example, and exchange exactly.

Introduction

0:00

Jake: Hello it’s Jake here and welcome to the Voluntary Life. This episode is an author interview with Stephan Kinsella about his monograph Against Intellectual Property. This article was first published in the Journal of Libertarian Studies in 2001. It’s been made into a short book which you can find online at mises.org/books/against.pdf. And it’s for free.

We chose this book because intellectual property is one of the areas where there is some real debate. People interested in living the non-aggression principle disagree about whether intellectual property is morally valid or the opposite. This book really changed the way a lot of people think about the issue.

In the mid-20th century, most freedom-oriented people agreed with Ayn Rand. They saw intellectual property as simply an extension of property. If you own what you make, then you own the ideas you create. That was her view. The Fountainhead is about a guy who blows up a building because he believes he has the right to do so as the originator of the design.

Intellectual property was well established among freedom-oriented people as a valid part of your own property. Using someone’s ideas without permission was seen as theft and a violation of the non-aggression principle.

Some people like Murray Rothbard argued that certain aspects were problematic. For example, he saw issues with patent law, while copyright law seemed more workable. There were many suggestions for creating a libertarian version of intellectual property.

What Kinsella did was show that the non-aggression principle is totally incompatible with anything resembling today’s intellectual property. He demonstrates that intellectual property is really a state-enforced legal convention. It is not an extension of real ownership.

Stephan Kinsella is a registered patent attorney, a libertarian theorist and lecturer. He is director of the Center for the Study of Innovative Freedom. He is also the editor of Libertarian Papers. That’s a quick background to the book. Now on to the interview.

I hope you enjoy it. Thanks so much for listening.

How Did You Get Interested in IP?

2:55

Jake: Thanks so much for joining us. Could you say a couple of words about how you actually got interested in these kinds of issues of liberty and principles?

Stephan Kinsella: In 11th grade I read The Fountainhead. The librarian at the Catholic high school I attended recommended it. I read a lot and was interested in philosophy. That pretty much started it. Then I went to engineering and finally to law school.

In law school I got even more interested in political theory. This included intellectual property theory and all related aspects of libertarian theory.

Jake: In the book you go through some of the other ideas that were around in the libertarian movement about intellectual property. How did you come to address this question? Was this something you were thinking about all the way through studying law? What led to this book?

Stephan Kinsella: I didn’t know very much about IP law at all until I read what Ayn Rand had said about patents and copyrights in one of her books. Her arguments made a little bit of sense to me but not quite. I assumed she knew what she was talking about.

The more I studied libertarian theory and kept thinking about IP law, I kept trying to figure it out. I tried to find a way that her proposal made sense. There were just too many problems with her theory. She shifts to a utilitarian, almost ad hoc rationale in her book.

Actually, in law school I wasn’t interested in IP at all. I wasn’t going to be an IP lawyer. I never even thought about it until I got out of law school.

When I started practicing IP law as a young lawyer, I kept thinking about these issues. Finally I came to the conclusion that the reason I was having trouble finding a justification for IP was because Rand was just wrong. There is no justification for IP.

Once I thought about it that way, a lot of the pieces fell into place. The whole system made a lot more sense then.

Jake: When you were looking at this, a lot had happened with the rise of the internet and people copying things online. There were discussions about whether IP is unsustainable because copying music and other digital things is becoming so prevalent. Was that in the background when you were thinking about these things? Or were you looking at it more from an abstract perspective?

Stephan Kinsella: It was really pretty abstract. It had very little to do with the fact that I was starting to practice IP law. Since I knew something about the law from practicing it, I decided to lay out systematically exactly what the law is in the beginning of the article.

There’s a lot of confusion among libertarians about what the law actually is when they discuss this topic. I have never claimed to make an argument from authority. Just because I’m an IP lawyer doesn’t mean I know more about IP policy than others.

It annoys me when lawyers do that. Most of them are naturally pro-IP but don’t offer very good arguments for it. So it was pretty abstract.

I started writing in the early to mid-90s on anti-IP. Finally I put them all together in that article which became the monograph. That was around 2000 or so.

I just had a talk with Professor Hoppe last week at the Austrian Scholars Conference in Auburn. He was the editor of the JLS at the time and accepted my article. He actually gave it its title.

He told me that when he accepted the article he didn’t think it was that big of a deal. I said I didn’t either. But the timing was fortuitous because the rise of the internet and technology magnified and exacerbated a lot of the problems with IP. It made them more obvious to a lot of people.

If you subscribe to a couple of blogs or forums, you’ll see dozens of examples every week of outrageous applications of copyright and patent law.

Jake: There are a lot of people on the call. If anybody would like to ask any questions or make any comments while we have Stephan on the line, please go ahead.

Caller: I have a question.

The Scarcity Question

8:08

Caller: Great to chat with the author. The scarcity question seems to me, with non-legal expertise, a little bit like begging the question. When you talk about the lack of scarcity in ideas, my mind goes to this example. If I have a superior technique for harvesting cotton and you copy it, I don’t lose anything physically. But economically I lose the exclusive advantage of being the only one who can use that technique.

So what is scarce in IP is not the ideas or songs themselves, but the profits that accrue from exclusive use. That’s where scarcity shows up for me. Could you talk a little bit about that?

Stephan Kinsella: In a way that’s correct. I don’t know if you lose the exclusive right to it. I don’t know if you ever had the exclusive right to it. Do you have a right to profit? Do you have a right to exclusively use this idea?

Libertarians tend to agree that for scarce resources—things that there can be conflict over—we assign property rights along the lines of the Lockean homestead principle. Whoever homesteaded the item first is its proper owner. Once you agree on that, assigning rights in the profit or value of something conflicts with those other rights.

Right off the bat we have a conflict with what most libertarians would agree with. The pro-IP view says you’ve lost your exclusive right to profit off the idea. But we don’t have property rights in the value of things. That includes reputation rights.

You could say Walmart harms a mom-and-pop store by setting up nearby and taking their business. But the mom-and-pop store isn’t entitled to that business. They don’t have a right to the custom of their customers.

You have to think in terms of the praxeological status of human action. Action is the use of means—scarce resources—in accordance with causal laws to achieve some end. Using those means necessarily implies that if one person is using it, someone else cannot. So ownership makes sense for scarce means.

Information is what guides your action. It’s just a plan. Many people can use the same pattern of information or recipe at the same time. It doesn’t make sense to have ownership of that pattern.

To have successful action you need ownership of the means. You don’t need ownership of the information you select to guide your action.

Caller: The profit that results from exclusive use of a process would be scarce. The profit would flow to you rather than to someone else. If you come up with a great cotton farming technique, you could make enough money to buy up other farms. You could become a dominant player. The scarcity argument seems to put the cart before the horse.

If there is such a thing as intellectual property, what is really being managed is not the ideas themselves but the profit from exclusive control. I’m not a fan of IP in its current form. I’m just trying to understand the thinking. I think we agree on non-initiation of force. But I’m trying to understand the difference between the ideas and the profits that arise. The profits would fall under scarcity, but the ideas would not.

Stephan Kinsella: Profit is just an economic description of the difference between money inputs and money outputs. The actual money you have is scarce—like gold. Let’s talk concretely. I don’t make a sale of my new razor blade because someone else copied the scheme and sold a similar razor blade to a customer. I don’t receive that piece of gold. The other guy receives it instead.

That’s a concrete example. I don’t have the exclusive state-enforced monopoly to sell that type of razor blade. Someone else received the gold from the customer instead of me.

Caller: I don’t want to go into state force because I think we’re in agreement there. Let’s stick with the example in your book. Suppose I come up with a great way of harvesting cotton that produces twice as much as before. If I retain exclusive use, I’m economically much better off than if everyone else can use it.

Stephan Kinsella: Yes, you’d be better off. You would receive pieces of gold from people that you otherwise would not.

Caller: I would be able to underbid other farmers. There’s economic efficiency at least for me and hopefully for my customers. That’s where the question of scarcity is most important. The gold that comes to me as a great cotton producer is scarce. Money is scarce except in a fiat currency economy.

The scarcity comes in to the question of who owns that piece of gold. The third-party customer owns the gold. We all agree he has the right to give it to whoever he wants. If he gives it to someone else instead of me, my competitor owns that gold. When you say I don’t have the exclusive right, that’s another way of saying I don’t have the right to use force to stop someone else from using a similar process.

How would you have an exclusive right to do something without initiating force against competitors?

Contract Law and IP

15:12

Caller: We can jump into that. That’s a fascinating question. I’m not claiming to be an expert. The way I view IP is that it would fall under contract law. You would have contracts with people. There wouldn’t need to be a separate contract universe for IP. It would be the same as employment contracts or anything else.

That’s how I would see it being enforced. Do you have the right to initiate force if someone violates your contract? I hope not. There should be other ways of managing the situation. In a truly free society, contract violations would be dealt with by ostracism and lowered contract ratings. That would raise costs in various ways.

The way IP would work ideally is like this: you buy a book. It’s like renting a car. You don’t have the right to rent a car and then sell it on eBay. You don’t have the right to buy a book and resell it at a profit if you don’t have a contract. It shouldn’t be separate, which unfortunately it is under the current system. It should be under the umbrella of contract law.

Stephan Kinsella: I agree completely with that. You’re thinking anarchist like me. Yet you believe certain contractual mechanisms could replace functions we currently see the state performing. The institutions that would arise under a private contractual regime would not be called a state.

Likewise, if you arrange secrecy or exclusivity provisions by contract, I don’t have a strong objection to calling that intellectual property. But we might as well call it private IP. That doesn’t justify the public IP that is the real problem now.

Once you admit it’s a contractual issue, you have strict limits on how third parties can be brought into these contractual webs. The essence of patent and copyright law is the ability to affect third parties who have not signed a contract. If you take away the ability to ensnare third parties, these rights totally disappear.

That’s why advocates fight hard against proposals to add a copying requirement to patent law. They know that if you’re free to reverse engineer or independently invent something, it takes all the teeth out of patent law. Most libertarians who say they’re not in favor of the current IP system but favor some IP system have a much more extensive system in mind. They won’t tell you exactly what it is because they don’t know.

When I point out what patent law does, they say they’re not in favor of that. For every terrible example, they say they’re not in favor of it. Then when asked what they are in favor of, they can’t say. It’s like atheists arguing for God but unable to define it. It leaves me frustrated because I don’t know what to argue against if they can’t define what they support.

Common Law

19:08

Caller: In a free society you wouldn’t say “employment law.” You would just say contract law. It may not even be called law, but some sort of common law. There will be gray areas of course. If you are the eighth person to receive stolen goods, are you really responsible for returning it to the first person? Those things are hard to figure out.

Suppose you’re living on land that was taken from the Cree 150 years ago. There are going to be some gray areas. That’s just the nature of the beast. The perfect free society solves 98% of the obvious problems. Then intellectuals can quibble about the remaining 2%.

I’m very much in favor of having it as an umbrella of voluntary contract law. There may be different levels. Some people might say they don’t want to be part of this contract law system when it comes to intellectual property. In that case they wouldn’t enforce it against others or have it enforced against them. There could be different layers. It would be a competition for the most cost-effective way.

The key rubric is that there is no way to involve third parties in a dispute. Having said that, I’m sorry to monopolize. I’ll just ask one more question before tossing you to the other wolves.

If you have IP, you have a lien or some sort of third-party ownership over every piece of property in the world. Suppose I write a stunningly filthy and ingenious limerick. If I copyright it, other people can’t write that down. In a sense I have ownership over everybody else’s property.

Two things popped into my mind. First, it’s not really possible because people aren’t going to randomly write out Hamlet. It’s not barring something people would do in the normal course of events. If something is common like “Happy Birthday,” you can’t copyright it because it’s in the normal course.

Second, we have that anyway. I can buy a knife but that doesn’t mean I have the right to plunge it into someone. Laws against stabbing are like that. Could you clarify those for me?

Stephan Kinsella: Let me take the first one. One aspect of copyright law covers literal copying—an actual duplicate of the original item, like copying an MP3 file. I agree that is extremely unlikely, probably practically impossible, to occur without the owner’s knowledge. There is actual cost being done in those cases.

If copyright laws were restricted only to literal copying and there were no patent law, the harm done by copyright would be drastically diminished. That’s exactly why copyright advocates fight to prevent expanding the fair use exception. They also fight to prevent abolishing the derivative works aspect, which makes copyright much broader.

Copyright law is not just literal copying. If you’ve heard someone whistle the Star Wars theme and it gets in your head, and you make a rap song centered around it, you’ve never had a contract and never really copied anything. You’re just aware through cultural osmosis. Yet under copyright law you could not make a Superman movie even if you’ve never read or seen an actual Superman comic.

Suppose we restricted copyright to literal infringement. Still, our computers are infested with perfect digital copies just from browsing the web and people emailing things. Theoretically the owner of that pattern has the ability to control your property—your computer—which has that image on it.

Take documentary movies filmed in public places. They have architectural works in the background—buildings, statues. There was a big dispute about the Korean War Memorial statues in Washington DC. Someone took a picture of those statues. They were put on a postage stamp. The postal service was sued by the original sculptor even though he was paid by the government and the statues were on government land.

When I’m on vacation, I get paid a fair amount of money to move my pasty hide out of people’s vacation photos so they don’t have to look at it again. That’s just another way of achieving that. That’s negative copyright.

Stephan Kinsella: You reminded me—what was your second question about the knife? That example is used because of an uncareful way libertarians often speak. They say your property rights aren’t absolute because you can’t use your knife to kill someone.

It really has nothing to do with property rights. I can’t kill you because you have a property right in your body. The rule that says I am not permitted to cause physical damage to your body presupposes that you have property rights in your body.

I have no right to damage your body with any physical means—whether I own it or not. It doesn’t matter if it’s my knife, a neighbor’s knife, or one I stole. Ownership of goods simply means I get to decide how to use it.

Of course I’m not entitled to use it in a way that violates someone else’s property rights. There is no conflict between saying there are things I’m not able to do with my property. It’s not a limitation on my property rights. It’s a limitation on my actions because other people have property rights.

In a sense it’s an affirmation of property rights—the personal property of another person—not a denial. If libertarians disagreed over who owns a scarce resource, I wouldn’t use the same argument. But I assume libertarians agree that if Stephan Molyneux has a printing press he made himself from metal he homesteaded, he is the owner.

He has the right to use those goods and do anything he wants so long as he isn’t trespassing on someone else’s property. You cannot come along and say it trespasses on my exclusive right to own this idea. You have to come up with an argument for it. I don’t see the argument.

Property rights are complete by specifying the homestead principle with respect to scarce resources.

Future of IP

27:14

Caller: That really does clear it up. I have a few more questions but I don’t want to hog the show. If other people would like to ask questions, I’ll step back.

Jake: I have a quick question. This is just an invitation to complete conjecture. There’s no way to tell the future, but I imagine two ways IP could go.

One argument is that with the rise of copying and digital media, IP is going to be unenforceable. The system will have to change and become a joke law. Another way is that this has been one flowering of copying, and now comes the clampdown. There will be a huge increase in state power to enforce IP law despite people finding ways to copy.

How do you see things going?

Stephan Kinsella: In a way, two directions. I agree with you. These tendencies exist. It’s like the drug war. The drug war is just as absurd as IP laws and unenforceable, yet the government keeps making it worse. There may be some signs of decriminalization in some states because of budget issues.

As a practical matter it’s going to be impossible to enforce this stuff too much. But I don’t know if they’re going to stop because there’s so much political and corporate pressure behind it. The laws are getting more draconian. We have the secret copyright treaty coming up, which I suspect will pass. These guys are good at doing this kind of thing.

In response to your earlier question, this was more abstract for me. Other people have written on practical projections of what mechanisms would arise in a free society to address legitimate problems that IP advocates see. I used to think there’d be DRM to some degree and big contractual regimes. I still think that to some extent.

In the last couple of years my thinking has changed. Learning is a good thing. Emulation is a good thing. It’s the essence of the free market and of human civilization and progress. It’s a good thing that information is not scarce. We can infinitely duplicate and learn from the insights of others. We can pass it down from generation to generation and increase historical information.

In a sense that’s all it is—just information. People will just have to adjust and adapt, and I think they will. Young people and the dynamic internet culture are already doing it. They’re putting stuff out there because they want to be known.

Cory Doctorow has said the danger is not that people are going to rip you off—it’s obscurity. You want people to learn things and know who you are. Throw it out there, get known, establish your reputation, and use your skills to survive. I’m not exactly sure how people will do it. I’m not sure how big blockbusters would be made in the absence of copyright law. Maybe they wouldn’t be made, but I suspect they would.

Jake: Fantastic. Has anybody got any questions or thoughts to put to Stephan?

Questions (Government Dependence, Incremental Invention)

31:29

Stefan Molyneux: I just wanted to follow up. The government likes having artists and artist managers dependent upon the government. It makes them a little less critical of the government. I don’t think it’s a smoky background conspiracy. But ownership of the cultural elite has been important for regimes throughout history.

IP is a way of hooking those people into the existing system, like the welfare state does with certain sections of society. It’s a great way to keep people loyal. I’ve never thought about that. That’s a good point. In a way the state is like their patron because the state guarantees them some way to make money. You don’t get ugly pictures of the king from the court painter.

Sorry, I interrupted somebody who had a more intelligent thing to say.

Caller: Any product has an almost infinite number of generations leading up to it with incremental, almost infinitesimally small improvements. What helps these statist agencies determine where the stop point is for a patent or for copyright? What helps them decide here is where you can’t improve on this thing anymore?

Stephan Kinsella: I don’t want to diminish the role of creativity. Objectivists and Randians get completely apoplectic when you oppose IP. They think you’re saying there’s no role for the mind and creativity isn’t important. Of course it is important. I also don’t want to say there are no great thinkers in history.

Our view of the “great man” view of history has been exaggerated by standard history and perhaps some pro-business worship. Take the famous inventors like Eli Whitney with the cotton gin. They are just one little dot in a chain of progress going back thousands of years of incremental improvements. He stands on the shoulders of people who came up with ideas he improved upon.

Maybe his improvement was greater than average. But he’s still just one dot in a generally rising slope of technological progress. He wants to build upon the progress of others but draw a bright circle around his contribution and get monopoly protection. That basically stops progress or lets him extract rent from it.

How does the government do it? With arbitrary patent law. This is one problem I have with it—it’s completely arbitrary. I see this from the inside. The laws the government uses are unobjective, non-rigorous, vague, and subjective. They change over time.

You see a patent granted 10 or 15 years ago and everyone laughs because it was obvious in hindsight. But back then the patent office didn’t see it or didn’t care. Copyright is a little different. Most copyrighted works are original. But if it builds upon the work of another, that’s a derivative work and belongs exclusively to the original maker.

You don’t have the right to incorporate other people’s work into yours even if it’s original to you. With patents you can build on it, but you can’t use it without permission for 17 years or so until it expires. From a libertarian perspective the current scheme is so manifestly unjust it boggles my mind how any libertarian could support it.

Unless you’re the type of libertarian who thinks Congress and big statutory schemes like the ADA, FEMA, and Social Security are legitimate, I don’t see how anyone can think this legal system is legitimate.

Bribery (Government Raising Costs and Bribing with IP)

36:19

Caller: The government is very good at bribing organizations whose costs it has enormously raised. We haven’t talked about this much in IP discussions, but medicine is one area where patents cost lives. Why do drug companies need such lengthy patents? Because it costs a billion dollars due to government interference to get a drug to market.

They’ve raised their costs so much that they need to bribe them with patent extensions over medicines. Otherwise the whole thing would fall apart. The same is true with movies. Why are movies so ridiculously expensive? I know a little about this because I made one. It’s because unions have tight and expensive control over the movie-making process.

They raise costs ahead of time, which raises costs for consumers. Then they enforce IP as a way of bribing those whose costs they’ve raised. They make it illegal for people to come up with alternative contractual ways to get around these costs. Antitrust and monopoly laws prevent that.

The government raises costs through FDA laws, the regulatory process, tort law, and taxes. Everything they do makes things more expensive. Then they make it impossible to come up with contractual regimes that would get around these problems. All they leave is copyright and patent law.

There’s no guarantee that a patent or copyright will make enough money to make a project viable. Most patents are useless. They just sit on walls in offices as proud displays. Some libertarians have even suggested a government taxpayer-funded prize fund administered by experts to give incentive awards.

Once you accept that we need patents and copyrights to give a little more profit, how do we know that’s enough? Maybe the government has to give even more taxpayer money for more innovation. You end up with a pretty conservative kind of media. Because it’s so expensive, you get drugs for common conditions like erectile dysfunction and heart attacks, but not for rarer illnesses like lupus.

The same in media—you get big-budget productions that appeal to the widest majority. You don’t get smaller-budget films with more challenging perspectives. People get used to the way things are. They see big Hollywood hits and big rock stars and cringe at the thought of change.

They’re basically conservative at heart because they can’t stand the idea of change. If that’s all you’ve grown up with, it’s what you expect. It’s like people who still long for the days of Stalin. I think it would be quite a change, but Greg had a question for Stephan.

Use of Force

41:09

Caller (Greg): Near the beginning of the book you point out that IP centers around when the use of force is justifiable. I think you meant that in the sense of when it is justifiable to defend my property with force. Is that correct?

Stephan Kinsella: I honestly don’t recall the exact context. I was probably just setting the context for a libertarian framework of the proper use of force and its relationship to property rights.

Caller: To define a property right implicitly defines a correlative right to use force to enforce that right. The question to me is where the original initiation of force takes place. Does someone aggress against me if they copy my song, photocopy my book, or repeat a manufacturing process I use? Is that actually an act of aggression?

Stephan Kinsella: Let’s break it down. First we have to decide whether there’s a contract. If there is a contract, then it’s debatable depending on your concept of contract rights. Assume there’s no contract.

Take a simpler example with cavemen. Everyone is living in caves. One guy stacks logs and makes a little hut. It gives him advantages. His neighbors see it and start making houses too.

The first guy runs over and burns down the second guy’s house. I would say that’s an initiation of force. The IP advocate would have to say it’s not. As libertarians we break force into initiatory and responsive force.

Initiatory force is a shorthand for invasion of others’ property. It depends on the concept of property. Responsive force includes restitution, defensive, or even retributive force. It is not initiated.

To say the log-cabin inventor’s burning of the house is responsive force, you have to say the first guy building the house was initiatory force. The only way to argue that is to say the first guy had a property right in building log-cabin houses all over the world. To me that’s begging the question.

That’s exactly what the IP advocate wants to prove. You can’t rely on standard libertarian principles. You have to come up with an extra argument. You have to explain why building a house gave him rights over other people’s property which they already owned.

In today’s society the force happens because of the government. Intel files a patent on a chair design and gets a monopoly grant. If someone else “violates” it, they send a threatening letter. If they don’t pay or stop, they go to court.

If Intel wins, the court orders agents to seize money from the loser’s bank account or issues an injunction. If you make the product anyway, it’s contempt of court and you go to jail. There is literally force exercised by the state.

Libertarians saying that is justified force means they are siding with the thugs of the state against people who are only producing useful products to sell to willing buyers.

The IP Argument (Profits, Independent Invention, Value)

47:18

Caller: That’s the actual initiation to me—unless you accept that future profits of exclusivity are what’s being stolen. The IP argument is that if other people don’t build the log cabin, they would have paid me five bushels of wheat. So I’m out five bushels. The guy has stolen the profit I would have had from exclusive right. Therefore I burn his cabin down.

Does that make any sense to you?

Stephan Kinsella: This is why it’s such a loopback procedure to argue these things. If you accept intellectual property, then yes, you are out five bushels of wheat and have every right to get them back. If you invent something that might make a billion dollars and someone copies it, they have initiated force because you are owed that billion.

It’s like stealing someone’s stock portfolio. Maybe it will make money, maybe it won’t, but you want the opportunity. The two sides work in different frameworks. One side says you don’t have a right to potential future profits. The other says they are not potential if you already have exclusive control.

Phrases like “exclusive control” are vague. What does that even mean? It means if I invent a computer chip that is ten times faster at one-tenth the price, I’m going to be a multi-billionaire. If somebody copies it, I’m out my billions and that’s direct theft.

That’s the pro-IP position. But patents don’t even require copying. They prevent you from independently inventing it too. You can come up with the idea independently, not patent it, and later someone else patents it and stops you from using your own invention.

The Amazon one-click example in the back of the book is tough to defend even for pro-IP advocates. Something developed completely independently is obviously not copied. The challenge is proving independent creation.

Apple suing HTC over the slider widget on the Google phone would be justified under some pro-IP arguments. To me, Apple and Microsoft suing over stuff they all stole from Xerox seems funny. But I don’t know enough about that specific case.

It’s good to give your opponents the best possible arguments so your own position is battle-hardened. The pro-IP way of putting it is that it’s a property right in the monopoly and the exclusive right to the stream of profit. If you violate my exclusive control, it’s like stealing income I was owed.

Stephan Kinsella: This is typical of a certain type of libertarian thinking that is not representative of how Austrians think. Austrians and praxeologists define scarcity by borders and see trespass as using the resource without the owner’s permission.

Objectivists believe in property rights in the value of things. That’s why they support reputation rights and defamation law. Rothbard pointed out in The Ethics of Liberty that value is a subjective phenomenon. It is what other people are willing to pay.

To have a property right in value is to have a property right in other people’s minds. That’s why I’ve come to think of reputation rights as another type of IP. It goes by the same logic. Objectivists say labor is everything and you create value, so you own it.

They never question what types of things are ownable in the first place. If you believe in that, you have to believe in defamation law and reputation rights. They are all just perfections granted by the government—favoritism protecting certain markets.

If people say you’re creating a value, it becomes a determinist argument that begs the question. It’s only a value because you have intellectual property exclusivity. We don’t create values. We make things we own more valuable by transforming them.

There’s a passage in Rand where she says we don’t create matter; we always rearrange it. She’s correct. Creation is not an independent source of ownership. If you transform your own steel into a sword, you own the sword because you already owned the steel. You just changed its shape.

Creation is neither necessary nor sufficient for ownership. That still doesn’t give you the right to own your reputation because you “created” it. It’s not analogous.

We don’t know what the opportunity costs of IP are—what would be present in the world in its absence. My own story is about that. If I had tried to sell my show, I’d still be yelling at traffic. Giving everything away for free opened up a business model that wouldn’t have existed otherwise.

It would be interesting to see what decisions would be made in business and the arts without IP. I think you would get a lot more creativity. We’re already seeing a bit of it with the digital commons.

With patents, you don’t have one unless you apply. You can publish to create prior art and prevent others from patenting the same idea. But copyright is granted by the government whether you want it or not. You can’t get rid of it. You can’t reliably dedicate something to the public domain.

Copyright is like the roach motel—you can check in but you can’t check out. It’s like discrimination rights. You can’t promise an employer you won’t sue for racial discrimination because the law gives you that right anyway.

Monsanto/Organism Patents and Other Examples

1:03:09 (approx.)

Caller: Here’s an argument none of the pro-IP people can answer. Current U.S. patent laws allow people to patent living organisms. The patent extends to future generations of that organism. Big seed companies like Monsanto have sued farmers whose fields got pollinated by Monsanto corn via pollen drift. The farmers didn’t buy the seeds and didn’t want that corn.

How can anyone say that deprives Monsanto of money? How can the patent apply to future generations of a self-replicating organism?

Stephan Kinsella: I’ve heard those stories too. They’re just another example of obvious injustice in patent law. When you point them out, pro-IP libertarians say “I’m not in favor of that.” They buckle on every bad example but can’t define what they are in favor of.

There used to be “submarine patents.” You could file an application and keep it in prosecution for years—sometimes decades—by refiling. Jerome Lemelson did this with windshield wiper patents and others. He waited until the industry had adopted the technology through independent invention, then surfaced the patent and sued everyone.

The farmers getting pollen drift is similar—they didn’t copy it; it just happened. Submarine patents have been reduced somewhat by changing the term to 20 years from filing date instead of 17 years from issuance. There’s now a penalty for delay.

Another question I usually ask IP people: Patent law allows you to patent anything that hasn’t had a prior patent. Companies like Monsanto go into seed banks and patent heirloom varieties that have existed since the 1800s. Nobody invented them. Then they use the patent to jack up the price.

The response is always “I’m not in favor of that.” They can’t tell you what they are in favor of. It’s annoying. Maybe we should make a petition with 100 checkboxes of bad examples and get pro-IP people to check which ones they oppose. Then we’d be done.

Closing and Kinsella’s Current Work

1:08:51 (approx.)

Jake: Well Stephan, thank you so much for taking time to talk to us. I know you probably need to get back to the beach. Really appreciate you coming and taking part in the conversation. Thanks so much. Have a great vacation.

Stephan Kinsella: Thanks. Have a great vacation. Bye.

Jake: Did you have another question? Oh yeah, did you have any other publications coming out? Anything to tell us about what you’re working on now?

Stephan Kinsella: Not much on IP probably. I’m working on a collection of essays of my legal theory related articles, including this one. The next thing is sort of 30 or 40 common libertarian myths and misconceptions. It’ll be a short, crunchy, fun read.

Other than that, I’m just taking my time with new projects. I’m also spending a lot of time editing Libertarian Papers, the journal I started. It was founded in January 2009 and it’s going really well. We had 44 papers last year.

One of those papers won the Alfred prize announced at the Austrian conference last week. I’ve already gotten several new submissions from papers presented at the Mises Institute conference. It takes some of my time but it’s fun to do.

People can find it online at libertarianpapers.org.

Jake: Fantastic. Thanks so much for joining us.

Stephan Kinsella: Thank you very much, guys. Bye.

Jake: Thank you.

This is the full transcript with every part of the original conversation preserved, now broken into short, readable paragraphs of 7 sentences or fewer. The discussion covers Kinsella’s background, the problems with Randian and other pro-IP views, scarcity, contracts versus state enforcement, initiation of force, independent invention, government incentives, and concrete injustices like Monsanto and submarine patents.