KOL101 | The Future (the End?) of Intellectual Property (Open Science Summit, 2011)

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Kinsella on Liberty Podcast, Episode 101.

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TRANSCRIPT

FROM transcript of my talk is here

Stephan Kinsella

Thanks Joseph. I am very happy to be here. I am a patent attorney. I am also a libertarian and an adherent to the Austrian school of economics. Good. So some people know.. can you elaborate? The Austrian school of economics is a radical free market school that is not positivist in methodology like the Kossians or Milton Friedman type school. I am bringing that up because there is a methodology of science that is applicable to the natural sciences and the topic of today. So.

Some of you may have heard of the land of Cockaigne – the land of milk and honey. The poets in the middle ages came up with a mythical land where everyone has everything satisfied and there is no scarcity. We do not live in this world. There is scarcity – you can’t just have what you wish for. There is no magic here. This gives rise to two key features. There is scarcity and causality. Only one person can use a resource at a time, they are rivals – as economists call it. In order to achieve results in this world, we have to use these scarce thinsg in the world as means of action. And the choices that we make have to confirm with causal laws. You decide on an action, and you choose a scarce resource, and you choose a casually avocatious means to cause your action. There are two twin powers of human power and prosterity. Knowledge and property.

In a systematic way, knowledge is science. Science is the systematic categorization and acquisition of knowledge. Knowledge and property go hand in hand. They are twin pillars of human propserity. We have to have property rules to permit the productive use of scarce resources. This is why we have property rules that assign an owner to every possible scarce resuorce. Science is necessary to provide information about causal laws so that individual human actors know how to employ laws to achieve ends. This is a p… primary austrain economist. The logic of action, the study of human action. Employing means to achieve ends, and the means are scarce.

So in a free and civilized society, property rights are respected and individuals are free to learn from the body of knowledge and are free to add to it. This is a free society where property rights permit resources to be used productively without conflict. And science informs men how to use these resources, and this knowledge expands our ability to achieve ends and expands our ability to see what ends are even possible.

Now, science and learning in general – the acqusition of knowledge – has many forms. Just living, observation, cultural emmersion, informal teaching by parents, imitation, formal education, employment working at a job you learn things, and the scientific method and emprical testing. Entrepreneurs invest in research and development and bring desired products to market. Consumers and competitors learn from these products, they leanr how they are made. And competitors emulate and improve maybe on the products.

Patents and copyright short-circuit this process. I said I was a patent attorney. I know that this makes me less appreciated, but I hate patents the most out of all of you. They are just grants by the state for a monopoly privledge designed to protect companies from competition. The holder can use the state force against an innocent or peaceful competitor from using the information to compete. They are based on the confused notion that it is wrong to use information or to learn in some context. It’s trying to assign property rights on information, patterns and designs. But the purpose of property is conflict over scarce resources. But ideas and knowledge can be used over and over and over, and they are not scarce.

So when the law tries to impose this on ideas, it’s trying to make ideas scarce when it’s not scarce. We need the concept of property, but the free market is trying to create abundance despite this. So the purpose of the market is to overcome the scarcity. More knowledge is good. The more knowledge we have, the better we are. This accumulation is essential to progress. We shouldn’t treat it as scarce.

This is the fundamental problem with intellectual property like copyright and patent law. The fact is, it’s literally impossible to have property rights in knowledge. So what the law ends up doing is that it, goes under the guise of protecting property rights and knowledge, it gives property rights to things that are scarce. Copyright gives you a right to take some of my money if I do something. It does not permit me to use my printing press as I see fit, it’s just to extract money from someone in the form of damages or use state force in the form of an injunction under penalty of being contempt in court and fines and jail.

Someone who has a patent on a mouse trap, even if he gets it later, can stop me from selling my mouse trap idea or mouse traps. Patent and copyright undermine and undercut science. Patents distort R&D by steering it away from heavily patented areas. It pushes research and development towards more practical gizmos because abstract ideas are not as easily patentable. For instance, physics equations are not, but a musical condom is. Patents even prevent the use of knowledge even if you independently invent an idea.

It also stigmatizes the idea of emulation and copying- or in the real world we call this learning- adn this is why we have words like stealing and privacy applying to learning, competing, and education. These are a type of evocation. Stealing means I take something from you, and you no longer have it. That’s bad, that’s why we impose it. Piracy- real pirates would attack people and kill them and sink their boats. But the terms used now for merely copying information and competing..?

Copyright is bad too. It locks up written works. Tons of works are being lost because it prohibits the dessimination of ideas. It creates a culture of a publishing model where important works, journals and books are `limited`. You have to go through this model because you have no choice instead of cutting out the middle man.

The title of my talk was IP and the new mercentalism. It had its peak in the late 1500s. It was the policy of the crown by granting industries certain monopolies. In England in the 1500, many goods were covered by patents like playing cards, books and wine and so on. Not because anyone invented it, but because the crown was granting favors for someone sometimes in exchange for agreeing to collect taxes for the state. It caused the monopolists and private companies to turn to the government to perform search and seizures and others going outside the monopoly. Did the other shops have the king’s stamps?

In France, 1666- cloth button wearers were investigated. People were tortured and executed for pirating fabric designs. Some merchants collected taxes in exchange for.. ilike the wooly. We have the warrantless searches for CD and DVD counterfeiting.. courts seize domain names without due process. Time Warner Cable, Comcast and others are agreeing to copyright infringement cases. Obama and others have been cooperating with Hollywood and others to dissrupt internet access to people suspected to violate copyright law.

And the tax issues.. we have the software, music, and pharmaceutical industries accruing monopoly profits and the forms of royalties and shakedowns of people using trademark, patent and copyright law. By decreased competition they gain this monopoly and more money. So then this turns into campaign contributions or taxes. So Microsoft uses its money to acquire more patents and then uses that money to sue other companies and then to shake them down for royalty payments. It’s called royalties for a reason! It’s no surprise that Stodden mentioned that the law wwas fought back by copyright lobbyists.

As the state, basically- it’s nothing but mercentalisism byut so called property rights are used as a cover. Patent and copyright were not called property until recently. People resisted these monopolies because they knew there was something wrong. This is why they are only allowed for a limited time, so that the state could encourage innovation – but there’s proof that this actually hampers innovation. The advocates started to cover this property rights.. and hey who is going to be against property?

Someone the other day on some podcast said that children are like Hitler. If you bring up these terms in an argument, then nobody can argue against it. Who’s against protecting property? Or the no child left behind act. They put these nice terms on these laws to make it hard to oppose them. A lot of the opponents of intellectual property are proponents of property.. pro-free-market, pro property position is where we’re coming from.

The patent system isn’t broken. It’s doing what it’s intended to be doing. Patent reform? The latest was not significant at all. The problem is not software patents. The problem is not corporate patents. It’s not that the patent term is too long. We have to recognize that patent and copyright are completely antithetical to property right purposes and science. It impedes science and property.

Intellectual property prevents owners from using property as they see fit. And it intentionally stops learning. Don’t reform patent law: end it. If you want more information abuot this, I was going to post to c4sif.org.. there’s more information there, more systematic information elaborating on the ideas that I talked about today. I founded the Liberatarian Papers journal. It’s completely free and open to the public and has no copyright restrictions whatsoever.

Thank you for your time.