It occurred to me recently that although I’ve done dozens of speeches and interviews over the past 20 or so years on libertarian aspects of intellectual property, or IP, that is, on IP policy, I’ve never done any in depth lectures for libertarians on IP law itself. Today’s discussion did a brief overview of various types of IP law, and then focused on the patent law and patent application process itself. It was followed with Q&A at the end. I plan to do followup episodes focusing on copyright and perhaps some other areas.
As I argue in my forthcoming book Legal Foundations of a Free Society (LFFS), and as Hans-Hermann Hoppe has argued in his work and in the Foreword to my book, it is the fundamental fact of scarcity, and the possibility of conflict that this fact gives rise to among human actors—conflict over their bodies or other, external scarce resources that serve as means of action. Thus, for civilized humans—those who prefer to live in peace and cooperation with each other rather than violence and destructive conflict—they favor property norms, or laws, to assign unique owners to each contestable, or “conflictable,” resource.1 Humans can only decide which norms are justified in the course of discourse, in which, as Hoppe argues, all participants undeniably presuppose the value of prosperity, peace, cooperation, as it is an operative presupposition of the very activity of argumentation. (I discuss this further in LFFS.) [continue reading…]
Libertarians are used to thinking in terms of natural law and natural rights. In terms of principles, reason, and justice. That is, that we can use our reason to arrive at ethical or normative conclusions that will allow us to evaluate existing positive law. Laws “exist,” or are in force, in a given legal system; but some are bad, some are good. Some are just, some are unjust. That is, we can identify some legal rule as law, whether good or bad law, and we can then criticize the bad laws. The legal positivists, such as H.L.A. Hart, were right about the former point, and the natural-law lawyers, like Lon Fuller, were wrong. It is possible to identify a law as existing, in-force law, as positive law, even if it is unjust. But the extreme statist and legal positivists are wrong to claim that the only law is that announced by a sovereign which implies that there are no external, “higher law” grounds from which to criticize existing positive law. The natural lawyers are right, here. Libertarians have no problem with accepting the legal positivists’ contention that an unjust law can exist and can be recognized as an existing law, since we believe in a higher law—our libertarian principles—which means we do not condone an unjust law simply by recognizing that is law.1
This is my appearance on The Soul of Enterprise, Episode 432, with hosts Ed Kless and Greg Tirico. Recorded Friday, March 24, 2023. Their shownotes are below.
This is a short conversation I had with James Cox about copyright and fair use back in 2016 (Feb. 26). We also talk about the safe harbor in the DMCA and the §230 safe harbor in the CDA.
In this episode, Stephan Kinsella joins me for an in-depth conversation about the book “A Theory of Socialism and Capitalism: Economics, Politics, and Ethics” by Hans-Hermann Hoppe. We discuss the harmful effects of socialism, how to take proper action in an increasingly uncertain future, and the alternative to socialism.1
From my friend Greg Morin: “Apropos your recent post about people mispronouncing words. Listening to KOL 406 and you horribly mispronounce “verstehen” lol. It’s like this: fair-shtay-en. Next time we talk I can say it for you. At least I got something out of my learning German over all these years.” [↩]
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