I published Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) last September, in hardcover, soft cover, and Kindle formats. A free pdf was released at the time of publication as well and the book was published under at CC0 (no rights reserved) license.
A second printing, with corrections of accumulated errata, has just been released (August 2024; no change to pagination). A free epub file, including all errata corrected to date, is now available for download as well.
Podcast (kinsella-on-liberty): Play in new window | Download (38.1MB)
Kinsella on Liberty Podcast: Episode 440.
My appearance on The Rational Egoist: Debating the Moral Status of Intellectual Property with Stephan Kinsella: Part IIb. (Spotify)
Shownotes:
The Rational Egoist: Concluding the Intellectual Property Debate with Stephan Kinsella (Part 2 of 2)In this final episode of a two-part series, host Michael Liebowitz concludes his engaging debate with Stephan Kinsella, a libertarian patent attorney and author, on the moral and legal status of intellectual property. Building on the groundwork laid in the previous discussion, Michael and Kinsella delve further into the core arguments surrounding IP rights, examining their effects on creativity, innovation, and property law.
The episode offers compelling insights into both sides of the debate, providing a thorough exploration of one of the most contested issues in legal and economic theory. Tune in for the conclusion of this thought-provoking exchange that challenges established viewpoints and offers fresh perspectives on intellectual property.
Grok Shownotes: In this episode of the Kinsella on Liberty Podcast (KOL440), recorded on August 28, 2024, libertarian patent attorney Stephan Kinsella concludes his debate with Objectivist Michael Liebowitz on The Rational Egoist, hosted by Michael Malice, continuing their discussion from KOL438 and KOL439 on the moral and legal status of intellectual property (IP), focusing on patents and copyrights (0:00:00-10:00). Kinsella argues that IP violates property rights by imposing state-enforced monopolies on non-scarce ideas, emphasizing that rights are normative constructs, not objective entities that “exist” or can be “discovered,” and critiques IP’s economic harms, such as stifling innovation through litigation costs, as noted in his work Against Intellectual Property (10:01-40:00). Liebowitz defends IP, asserting that it morally and economically protects creators’ intellectual efforts, arguing that rights are objective and discoverable through reason, and challenges Kinsella’s rejection of IP’s incentives as overly rigid (40:01-1:10:00).
YOUTUBE TRANSCRIPT and GROK detailed SHOW NOTES below.
GROK detailed SHOW NOTES
YOUTUBE TRANSCRIPT
0:00
all right what you’ve destroyed by trespassing against it is the value of
0:05
the cabin that’s one way to describe it but the the point is but it’s what
0:11
happened the law has to say if there is a trespass that is an unconsented to use
0:17
of someone’s resource that is an act of aggression um then there has to be some kind of a a consequence for that and the
0:24
consequence is some kind of um some kind of penalty or award or restitution or
0:30
compensation let’s just say compensation so when you harm someone or when you use
0:35
their resource without their permission then you you owe compensation and the
0:40
the degree of compensation is related to what you did like how you use the
0:45
resource and what harm you committed to the owner now that is necessarily somewhat subjective because there’s no
0:52
way to you know someone might value their Log Cabin more than someone else might value their Log Cabin which is why
0:58
there’s no fair market value of things for example when the state seizes my property and they say your house is
1:04
worth half a million dollars and we’re going to give you that it might be worth 10 million to me because it might be a
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family thing but the law can only deal with objective numbers unfortunately right so it would by market value but
1:16
the point is the law has to make an effort to this is why there’s proportionality in responding a lighter
1:23
crime results in a lower amount of proportional response or punishment and so on uh likewise
1:30
if I walk through your log cabin and I walk out the back door and I haven’t harmed anything then the the damages are
1:37
going to be pretty minimal right but if I burn it down or if I knock it down yes
1:44
then the damage is would be worse but it’s not because I own the value in my property that’s the that’s the
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fundamental mistake and the way to see that is to understand just like in the example I
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gave just now with imminent domain or with condemnation where we you and I I think would recognize that there’s no
2:01
such thing as an objective value in a resource because it’s it’s subjective
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not in the not in the con kind of way but it’s subjective in the sense that um fair market value is just an estimate of
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what the market would value but it doesn’t mean that’s what the owner values right no but you do have to go by something and if the purpose if the
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purpose of law is to is rights protections correct right and you’re
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saying that somebody’s going to be compensated based on the value of the resources that’s what right so it’s the
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same resources outside creation same resour it’s not the same they’re arranged a different kind of way you
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know look yes there that’s exactly my point but I don’t deny that because I
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admit that but that’s creation that’s value creation fine that’s why I I admit that H productive human action using
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resources that we own produces wealth I admit that but you don’t have a property
2:57
right to wealth just like you don’t have a property right to people people subjective evaluation of things you only have a property right in the physical
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Integrity of these things but the look let’s take an example that’s more favorable to your case I I walk into my
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I have a famous neighbor a neighbor who’s a famous painter I walk into his Studio he’s got one blank canvas one
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blank canvas and a bunch of tubes of paint and next to it he’s got a finished
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painting there’re the exact same weight exact same amounts of paint exact same
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canvas now if if I take a knife and I rip the blank canvas up I might owe the
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guy $100 if I if I rip apart his painting that had a market value of a
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million dollars now I owe him more money because I’ve I’ve done more damage to him subjectively because of the way I
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have committed the act of trespass all that is true but none of that implies that you have a property right in
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value okay if you have a property right let me if you have a property right in value
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that this why I keep emphasizing physical Integrity we have property rights in the physical Integrity of our of our resources um it doesn’t mean that
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we’re ambivalent as to which one or which one has more value to us but for
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example if you and I are neighbors and I have a a large Rose Garden outside of my home which all the neighbors love it
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makes the neighborhood more beautiful and you love looking at it and it actually might enhance the market value
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of your property because if you sell your home the new neighbors know they get to look at my pretty rose garden
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correct but if I tear that Rose Garden down it might lower the value of your
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home but that doesn’t violate your property rights because you don’t have a property right in value you don’t have a
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property right no no no no no that’s a situation where you don’t have a property right in somebody else’s value
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and the and the value that somebody else owns but the value of your home hold on the value of your home is enhanced I
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agree it’s enhanced but it’s not enhanced based on your own creation or it’s enhanced because of a a tangent
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because something that’s tangential something that’s aside it’s not because you haven’t created the value the person
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that created that Garden they have created value and that’s a big distinction and it’s fine but they don’t
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own the value they don’t own the value and okay so we’re going to disagree and I don’t want to stay on this you’ve made
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your your case and I’ve made mine I think you well before we do that tell me why do you think you own value
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that you create I think that well I think that I what I own I think when I put in time effort on my own resources
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it’s important because there’s a lot of different factors it’s like you know if I’m working for you and I create
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something but I’ve already contracted that out to you then you own it but if I but value creation I own what I’ve
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created I own the additional but you see this is the Crux of the issue you’re not you’re just saying you’re so I think
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it’s because all all property I don’t care what it is it doesn’t matter is a function of two things Consciousness and
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physical application all property I agree AC action requires a mind to guide
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action and it requires the availability of scarce resources I agree with that by by what you’re by what so when I use
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both my mind and body to rearrange the matter and bring about something new I now own the new thing I now but you’re
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not hold on hold on ran says even ran says you’re not you’re not bring something I’m not I get that’s what Rand
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says and while I consider myself an objectivist it doesn’t mean that every word that Rand has ever written I agree
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with well then but but but but why do you say but you’re not bringing about something new you’re you’re rearranging something you are no you’re not bringing
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about new matter you’re right right in saying that matter as matter cannot be
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destroyed or created that’s true but matter can be rearranged to create
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that’s what all production is I age otherwise there’s no if that’s not the case then there’s no such thing as creation at all I totally agree so you
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can create but the question is what you’re create you’re creating wealth is what you’re creating wealth is simply
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you have a right to what you create you have a right to the new no you don’t this is the you haven’t proved that you
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haven’t shown that at all I well if I don’t I don’t if you say that you have a right to what you’ve discovered the
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problem here is and this goes back to our original disagreement about the right to life about morality about whether rights are function of morality
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about physical Integrity the the whole sort of debate it leads to this point
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and what I’m saying is if I’ve used my mind and my body put forth the time and
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effort and furtherance of my life and have created something to benefit my life then I now have a right to that
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thing you’re right except for that last so this where I just so here’s the thing I think that this is where I think
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you’re you’re where I see is your eror is I don’t think you understand that what you’re saying is incompatible with
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your other so because you and I if you were a socialist or something or some some
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Mystic or something then yeah you can go off that that way but you actually agree you and I basically agree I believe with
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the core idea of ownership of scarce resources according to contract and
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homesteading I don’t think you would deny that and we can talk about that but I don’t deny that the the original
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acquisition of property has to do with locking and homesteading and contract and then yeah but the contract is not
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the original right the original is the homesteading then the contract right so
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if but I think what you don’t understand is that you’re adding an additional uh uh an additional thing
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about now way I also own the fruits of my labor and and things that I create
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with my with my with my effort and and all this you don’t understand that that’s incompatible with these other two
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it’s it’s similar and before I give my argument or we talk about it let me make an
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analogy um most normal liberals in America right
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they’re not complete totalitarian sociopaths they they’re not even anti- capitalist I mean they they basically
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believe in free markets and property rights I agree with you and that’s why I think calling them socialist is just
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intellectually sloppy and counterproductive well that’s another that’s another issue I mean you could be technical about it but I think they’re
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mixed they’re mixed but the the point is um they would they would they would
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agree with you and I that people have a right to their bodies in the sense of they oppose murder right and they think
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you have a right to private property which is why they favor laws against theft like so they believe in those
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things they believe in those sort of negative natural rights that you and I would agree with yeah but but Stefan
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it’s so when you bring them into it it’s so confused because a lot of them would disagree that you don’t have the right they’d say you can’t use heroin or you
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can’t use Coke drug no theys but my point is they would they
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would concede this sort of okay yeah we have these basic rights but then they would say but we favor other rights on
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top of that like they’ll say well but I also believe in a right to an education and a right to welfare what they don’t
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understand they don’t understand is that these positive rights have to come at the expense of the existing negative
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rights you can’t have them both very similar to the concept of inflation you’re your your a average e
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economic economically illiterate American kind of probably thinks I don’t understand why the government doesn’t
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just print more money to make everyone Rich because they conflate money with
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wealth but money is not wealth right so they they don’t understand if you if you print more money you inflate the money
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supply it so it comes at the expense of existing purchasing power like nothing is for free right the same thing I think
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can be said of your of your attempt to say yes Stephan I agree
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people own their bodies and they own resources that they acquire from the
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state of nature they they appropriate but I also believe that people have a right to things that they create because
11:12
that’s a source of value and the Crux of your argument is when you insisted
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earlier in the Log Cabin case you concede that the owner of the Log Cabin
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the logs and the land owns the resulting Log Cabin that he built with his labor
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and you said it’s because he owned the input factors but also because he created it
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so like you had to add that thing even though it adds nothing to it’s but it does add something Stephan it does it
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adds it adds to the description of what you did but it doesn’t add to the reason that you own The Log Cabin you own The
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Log Cabin because you owned everything that went into it that’s completely sufficient to explain the ownership like
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if I if I say hey there’s a log cabin here and um Michael is in it and he
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appears to be the owner um he’s the owner of it because he owns everything in it you don’t need to say also because
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he he was really creative one day and he he he he Sprint he used the sweat of his brow to make it one I I I get what you I
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get what you’re saying the problem is is that the Log Cabin doesn’t come into existence without my creative effort
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100% agree but so that so that’s the thing is that you can’t sort of sever
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the two the things didn’t just get rearranged by Magic and turned into a log cabin you can sever you can sever
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them yeah action is a unified ho and this all related but as I point out in my writing uh analyzing say the way
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Austrian economics looks at this and understanding the nature and function of action and and and ownership of
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resources every human action and every Human Action is the union of two things
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it’s the availability and access to efficacious scarce resources the means
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of action and it’s the the the availability of knowledge that you have
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and the and the ability to apply it with your creativity so it is a a union of intellect and action and effort and
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availability of resources but but they both they both serve different roles in the structure of Human Action and that
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is can you back up second sorry go ahead I’m sorry I apologize go the scarce means of action
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or things that there can be conflict over and that’s why there’s property rights to to let human beings know when
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they are permitted and are not permitted to use a given resource that other people might prefer to use instead and
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then there is the intellectual aspect which is your knowledge which guides your action right um now the second part
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is what is the core to intellectual property and that is why the anal property cannot be owned because it’s
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not an ownable scarce resource it’s an ingredient of successful action it’s a crucial ingredient I’m not downplaying
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the role of it you cannot again we’re not ghosts so you can’t have successful action with just your intellect because
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there would be nothing to act on but you also can’t have successful action without an intellect because you would
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just be a Mindless idiot not knowing what to do it’s a combination of these things it’s perfectly harmonious and and
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beautiful yes but property rights only apply to the things that there can be physical conflict over which is okay
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yeah so if you look at Discovery even and this and then I want to go wait Discovery say again Discovery when
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you’re talking about homesteading the discovery of natural resources and coming to own them by mixing your labor with them the the the traditional laian
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case even that has an element of Consciousness in an element of value creation completely agree I agree so so
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I I just want to be clear in a I’ve heard people make say in a sense before
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I discover this thing you could say it doesn’t even exist in a sense right in a ker I believe makes that point right and
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and I I think he has a strong argument there and his is Finders Keepers Rule and even even even Iran said talked
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about in that poem the poem The Wester that Iran loved there’s some comment about the world will not exist when I’m
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no longer here like sort of but there’s always this element of mind and body
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that go into Discovery and creation okay which by the way which by the way key is is is key to the concept of ownership
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itself ownership is different than possession yeah so possession is just
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what cruso can do on an island it’s just the manipulation or availability of of efficacious means that’s what we can
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call possession ownership you know the concept of ownership wouldn’t even occur to him unless there was somebody that
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was there to take his stuff not only that it’s just it’s different if I if I own a car that relationship or that
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status is distinct from my possessing the car they’re totally different they can be separated I can loan you my car
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and you possess it temporarily and I’m still the owner right these These are totally different things and ownership
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is a normative in a legal claim or even a rights claim whereas possession is not
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it’s just a factual descriptive claim okay so now what I want to do is I
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want to use everything we’ve been talking about right now and I want you to to to use your
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position to make the case for why intellectual property right
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are not good can we use because we can’t cover every variant so can we pick say
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copyrights and just use copyrights as the example you can use patents you can
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use Pat I think patent is maybe a little bit better but we can either I think patents are better um but um so use
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patent but it doesn’t matter to me it’s just that I just we I don’t we can’t use you know every single type yeah well
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there’s several types of Ip and and patented copyright fit a similar mold the others have different problems it’s
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harder to explain but patent and copyright are very similar uh I can give an example but I
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can say what’s what what unites them is that ultimately the problem with with both patent and copyright is
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um it’s the so there are lots of conventional criticisms of the patent
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system right there’s utilitarian criticism which is that the rationale
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given for these systems in the Constitution um is is not a good
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argument right like their evid they don’t have good evidence to back up their claims I think you and I are thinking more in principle than
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fundamental terms so let’s forget about utilitarian argument for a second yeah um or you could argue that the
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government’s way of administering it is is is inefficient or they do a bad job of it all that let me just be clear I’m
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in no way shape or form I don’t even know enough I couldn’t do it even if I wanted to to defend current status ofre
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copyright and patented law from what I understand most people agree they’re a mess Advocates and opponents both yeah
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but they they none of them want to abolish it they they all say well we need it we need it but we need to fix it
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I’m just saying that I’m not defending it as is well most people most people are like you and that they don’t really
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understand the system which is understandable although a lot of them won’t admit that so the the problem and
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I I I admire that that humble approach right this like I don’t know what I don’t know you have a sense that you
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need something but you don’t want what we have the problem is people like you don’t you’re not even sure whether agree
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or not with me when I say we should abolish IP law um because you when I say
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you say well we shouldn’t abolish it and I say well why not you say well we need something but I said well you just
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admitted that the whole system is horrible you say yeah but we should have a better system but we shouldn’t abolish it I’m like What’s the better system and
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then you say well I’m not an expert I don’t know I’m like well then what the hell you how do even know what you’re talking about no what I mean what I
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would say is this I agree with patents and copyrights what I don’t know is is
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whether for instance a patent should be held for 15 years 40 years 60 years when
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it comes to copyrights is it for the auth for the lifetime of the author should it go beyond I don’t know that I
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I I haven’t G and I don’t know that there’s an objective way to resolve that okay what I I do think is that there’s a
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legitimacy in both patents and copyrights I hear you
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but even then unless you tell me if all you can do agree with me on every time I
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point out a problem and I could I could give you 10050 problems that you would probably agree yeah that’s bad too
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that’s bad too that then you’re left with a husk of I don’t know what you favor because you don’t know what your
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ideal system is so I don’t really know all I know is you you agree with me on every problem I’ve mentioned with the
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existing system like the arbitrariness of the terms well then let me give you a hypothetical of what I would agree to
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and then you can you can criticize it right okay so I’m far more comfortable of doing this with a book than I am with
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an invention because only because I’ve written books I’ve never invented a thing so so okay so I I wrote my book I
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I got my book here view from a cage it took me I don’t know a year and a half to write then I got out of prison I had
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to go to the publishing two years whatever so now I I get it copyrighted and I agree with a a
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publisher to the terms of sale that he’s going to get x amount I’m going to get x amount of the royalties that come in
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right so now we we sell the book I think that I have a legitimate claim to the
20:34
royalties that come back for the book I think that I had a legitimate right to contract with that guy and I think I
20:40
have a legitimate right uh to preclude other people on condition of buying my
20:46
book to reproduce it and sell it for commercial Pur stop so I agree with you on and I would hold that at least for my
20:53
lifetime okay I agree with you on everything except for your last statement um because that one it and it
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depends on how you mean it um so yeah given the system that we have and given the existence of copyright you certainly
21:05
have a right to publish a book and you have the right to make a deal with an author I mean with a publisher and to get a royalty agreement um now in
21:13
without a copyright system in place that would all be different and you might not have as easy a time of of of making such
21:21
contracts um there would be more widespread piracy uh you might have less bargaining
21:26
power or more bargaining power with a publisher I don’t know but let’s given the existing system yeah none of that’s a rights violation the question is do
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you have the right to stop third parties now if you simply mean that people that have some kind of
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contract or even quasi contract with you um uh uh or violating a contract with
21:48
you if they copy your book without your permission I might weakly agree with you
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but that’s not what copyright law is copyright law gives you the right to
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prevent people from copying your book even if they don’t have any kind of agreement with you that’s ultimately and
22:04
so let’s get to the my the essence of my disagreement and this by the way everything I’m about to say is built upon everything you and I kind of
22:10
covered the reason I said property rights are a right to exclude the reason rothbart is right that they’re um um
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they’re they’re all rights are property rights and and the core property
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acquisition rules the core one of which is original appropriation right uh if we
22:29
agree on all that then I and I think you agree on those rules then you’ll see um
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except except you don’t agree with property rights being only um property uh All rights being property rights I
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think but you’ll see what the problem is um ultimately the problem is that
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property rights uh IP rights copyright imp patent are non-consensual negative
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easements okay now this sounds like legal wumbo jumbo but this is the best way to classify what’s wrong with it um
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I mean you could say copyrights violate freedom of of of the press okay something like that but what it really
23:08
does is it violates property rights in existing resources that are that are
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determined in accordance with original appropriation that’s that’s the problem so let me give you an example if if if
23:20
you and I live in a neighborhood well let’s say you and I are just neighbors and and you know you could have a farm
23:30
on your property you could have pigs on your property uh but let’s say you and I
23:36
don’t want each other to have a pig farm next to each other because um it would
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be uh unpleasant right so we we make an agreement with each other not to um have
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a commercial Pig form on our property okay that’s perfectly a legitimate type of agreement it’s called it’s called a
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um a negative servitude or a negative easement um it’s negative because it it
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it’s not a it doesn’t like a positive easement would be a right of way like let’s say I have a long driveway on my
24:08
property and instead of you building one right next to it on your property you just pay me a fee to use my driveway
24:14
right that’d be a right of way it’s a limited RightWay you don’t have the right to go in my home or to tear up the
24:19
driveway but you have the right to use it either you pay me money or you have a deal or something like that right that’s a positive easement a negative easement
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is simply the right to prevent someone from using their Resource as they want this is this is what is commonly done in
24:33
homeowners associations where there’s restrictive covenants you know have 100 neighbors and they all have a master
24:38
agreement they signed or the the developer put in place when he built it where everyone owns their resource but
24:46
they they have a couple of limitations on their property number one they have to pay like an annual homeowners
24:51
association fee right and if they don’t there could be a lean on their property so they’ve agreed to give a little bit of their property to this thing for for
24:58
for trash collection and for for security guards or whatever but they also agree not to to like to keep their
25:04
home as a residential type of home not like a factory with pigs on it or maybe not to build over two two stories things
25:12
like that all those things are restrictions on the use of your resource but you granted it by by contract
25:19
effectively to all the other neighboring land owners and unless you get their permission you can’t do it and they can
25:25
stop you they can block you that’s a that would be a negative easement you follow me I do now what’s what’s
25:32
legitimate about that is it’s just just it’s just a form of contract it’s a way of me taking my resource and giving some
25:38
control to someone else by contract and then we can file it with real property records it can run with the land so it’s
25:43
actually a real right not a contract right but that’s just a detail um this is similar to a girl agreeing to
25:52
let her boyfriend kiss her at the end of the date she has the right to remove her
25:57
prohibition on that because she has a right to exclude she can say yes you have permission to kiss me if her boyfriend kisses her it’s not a battery
26:06
it’s not a salt and battery because she consented but if he kisses her without her permission it’s
26:12
salt and battery or battery right because the difference is the consent of the own the owner of the
26:19
resource likewise um a negative easement is perfectly legitimate if it’s
26:24
consented to by the owner of the resource the house that’s burdened but if you don’t consent to it it’s not
26:31
legitimate and this is effectively what a patent and a copyright is it’s a it’s
26:36
a negative easement that the state grants to some creator of a of an
26:42
artistic work or an invention right because they’re a Creator and the state wants to promote that or value that or
26:48
thinks that they’ve done something worth worth protecting whatever that’s the rationale but what what the grant is is
26:55
it’s a negative easement and it gives the holder of the easement which is say the the the copyright holder it gives
27:03
them um a veto over people’s use of their resources like I can go to court
27:10
you could go to court as the copyright holder for your book and you could prevent McMillan who has a big Factory
27:16
with printing presses they own their Factory they own their printing presses they own their
27:22
ink they own their trucks that they just you know you can get a court order in injunction again that that factory or
27:29
that uh that publishing house and prevent them from printing your book I’m
27:36
sorry not your book They’re preventing copies of your book on their own resources and that is a violation of
27:43
their property rights because I think you and I would agree
27:48
that the the default understanding would be that McMillan owns their Factory
27:54
they’re the owner because they acquired it by contract or they Homestead it right that’s how we determine who the owner is the only way you can be
28:01
restricted in using your resource is if that action violates the property rights of someone else so for example if
28:09
someone owns a factory and they’re using it to shoot Rockets towards your field
28:14
that can be stopped because it’s an action that violates their property rights but it violates their property rights because it’s a it’s a way of
28:20
physically interfering with their properties uh Integrity right which is
28:26
again why I keep talking about physical integrity being the fundamental property right um so my action can be prohibited
28:32
but it’s not because it’s a limitation on my property rights it’s a it’s because your property rights limit what
28:38
actions I can perform right or if I have a contract with you like a negative easement or some kind of other contract
28:45
if I’ve agreed not to publish this book then you could theoretically go
28:53
have a have a have a claim against me in in the legal system you say listen this guy agreed not to his book but he’s
28:58
doing it so you can stop me from doing it that way right I’ve effectively
29:04
consented to that rule but if I haven’t consented to it if I haven’t signed any agreement and I’m not committing any
29:10
type of trespass then my publishing a copy of your book does not interfere
29:15
with the physical Integrity of your rights it doesn’t trespass against your property rights it doesn’t violate your
29:21
property rights it doesn’t invade your property and that’s why the grant of the negative easement is unjust
29:28
because it it basically amounts to a taking of my property rights it basically grants to you a negative
29:35
easement that I did not consent to so that’s a that’s that’s in the nutshell
29:41
the problem with patented copyright grants is that they amount to uh they undermine existing property rights
29:51
um uh without there being a u a consensual agreement okay
29:58
so I believe that let me just say that if I accepted your view of self-
30:05
ownership and physical Integrity I can definitely see how you arrived that your
30:10
your conclusion right which is why I think it was very important for us to however tedious it might be for some
30:16
some viewers it was important for us early on to distinguish these things
30:22
because what you’re saying here is that given that I the idea is an abstraction
30:29
basically it doesn’t it’s not a physical uh thing you’re saying I can’t have a right to it therefore there can be no
30:35
trespass against it so when they print my book they’re just using their physical
30:42
resources they’re not trespassing on any right of Mind from my view that property is a
30:49
result whether it be Homestead or anything else it’s a result of both physical and mental yep uh effort
30:59
then I say that this intellectual property the uh yeah you know the the
31:05
book which is both physical and mental it just leans more toward the the mental as opposed to the the homesteaded land
31:12
trees Etc so from that point of view I would say they are trespassing against
31:18
me and are violating my rights so that so I think that the the key uh uh debate
31:24
here has to do with far antecedent factors right and I’m I’m very glad that
31:31
we we have had the discussion because it’s given me first of all some things to research some things to think about
31:37
and hopefully the viewers as well because the the difference is very fundamental it’s not just consella is
31:44
against property rights intellectual property rights it’s canella has a
31:50
similar but different in important ways view of Rights than what I have yeah and I think
31:57
think that so I think you’re you’re right and smart to okay so this is I mean most people aren’t CLE they
32:04
disagree on this they’re not clear thinking and they’re not really honest um they switch back and forth between a
32:12
contract argument like you’ll you’ll sure you’ll hear someone saying well
32:17
canella um um well the reason why I can stop you from printing the book is
32:23
because uh when you sell the book you’re committing fraud because you’re pretending to be me okay but that’s a
32:28
weak argument that’s not that’s not really right or you or you say well when people buy the book they effectively
32:34
agree to a contract because inside the front cover there’s a little notice saying copyright and so you’re buying
32:40
the book subject to that contract so they try to build the argument on contract which and there’s so many
32:46
problems with that I could I could spell them out too and I have but you’re going to a more fundamental thing but I I
32:51
think that I think it’s good I think you’re you’re acknowledging that I think you acknowledge my point or you you
32:57
would acknowledge that at least the the presumption ought to be if you and I both agree that people can come to own
33:04
res well let me ask you do you you agree with me basically that people can come to own unowned scarce Resources by
33:12
original appropriation I think you agree with that correct I I do and I think that that original appropriation entails
33:20
both physical occupation yes and an intellectual intent to appropriate it I
33:28
agree and I I agree and I specifically say that in my book that um that’s the again the distinction between possession
33:34
and and and and ownership and abandonment and possession because uh
33:40
ownership requires the union of the intent to own as owner not merely to possess uh that’s why you can abandon
33:47
something when you cease to intend to own it you still possess it temporarily but I might possess it until I hand it off to someone else but I AB that’s why
33:54
and that by the way I think is why your argument against the the contract view is strong because if I buy a book and I
34:01
contract with you even if it’s implied that I’m not going to sell it but then I no longer want it so I abandon it then
34:07
some other guy comes and picks it up well he hasn’t agreed to anything well now you could know even if you stretch
34:13
and you say okay well the third party buying the book buys it subject or
34:18
homesteads it subject to this disclaimer this is rothbard’s argument in ethics of
34:23
Liberty which is also confused and wrong even if you argue that in the digital age this is all gone because now there’s
34:30
not even a physical book for you to for you to I mean there’s just texts up on the internet right and the person
34:36
putting the pirate copy online is going to strip out the copyright notice anyway so the person anyway there’s no there’s no
34:43
privity of contract we would say between the third party anyway and certainly not in the digital context so you’re right
34:48
but um would you agree with me also that if someone is using their resource that
34:54
they own you we both agree they own it um like a gun or a factory if they’re
35:01
using their resource um and there is no contract with someone
35:07
else and there’s no negative easement granted explicitly that the only way
35:13
that the holder of this IP right can stop me is that they prove um they prove that uh somehow I’m
35:22
I’m violating their property rights by my actions with my property would you agree with that
35:29
uh tentatively I I would say yes my only problem with it is I haven’t had a lot
35:35
of time to think about it yeah and and the use of the word easement although I studied it in real estate law you know
35:42
22 years ago I’m not real yeah let’s forget about that up to date on it but I
35:47
will say this unless there’s a property right violation that person can do whatever he wants I’ll say that who the
35:53
burden of proof is on and what that I’m not really certain okay so so but the point is um unless there is a unless
36:02
there is a property rights violation then then my actions are not invading
36:07
your property rights so so that’s the root of our disagreement and so the the thing I think that you you’re stuck that
36:14
you’re going to you’re going to you’re going to fail on here is that you concede that people have property rights
36:20
in these material resources acquired by homesteading and I think that’s just
36:25
incompatible with someone else having the right to an intangible thing that is
36:32
a property right and something that has intangible aspect and and and its nature
36:38
is bound up in this notion of of value or being valued that’s to me the
36:43
ultimate problem and I I at least think a case can be made that the burden of
36:48
proof is on you to demonstrate how my printing a book in my factory violates
36:55
your property rights sure and your answer seems to be not based in contract
37:01
which I respect but it’s based upon the fact that we can have property and things that we create that have value
37:07
because creation is a source of rights and the problem with that is I think that’s just question begging you’re just restating that creation let me just say
37:14
even that creation that I’m talking about really just has to do with what you’re talking about is
37:21
rearranging existing resources that I own the because I’m if I mean if if
37:28
we’re going to talk self- ownership then I necessarily and I’m real I don’t really like like to use self ownership
37:35
too much because but whatever it doesn’t matter if I if I accept it then I must own my thought processes I must own my
37:42
brain I I have to own what I do with it and in that case I’ve just rearranged
37:47
those things to create the book wait a second you lost me if you accept what self ownership if I accept self-
37:53
ownership right if self owner if I accept self- ownership and and we’re going by the rearranging theory if
38:00
rearranging isn’t actually an Act of Creation I’ve still just rearranged things that I I already know rearrange
38:07
them in such a way as to produce a book and I don’t know how that’s not legitimate property well well so so so
38:13
first of all um I I don’t like the term self- ownership either because it can lead to Mystical like the Mind Body
38:20
dichotomy the soul personality that’s why I talk about when I’m trying to be precise I say body ownership
38:28
which is again just a way of saying aggression or aggression is unjust
38:33
because people own their body so every every person is the owner of his body that’s what self ownership to me means
38:38
but it specifically does not mean that we own our labor or our
38:44
actions if you own your body you have the right to use it as you see fit but it doesn’t mean you own that using it’s
38:51
like you know if I if I go jogging do I own my jogging the these are metaphors that
38:57
just confused thought we you own the physical Integrity of a of a corporeal actual body and that is sufficient to
39:04
give you the right to use it as you see fit what Stephan what I would like to do at some point in the future and I know
39:10
you’re very busy and it doesn’t have to be even within the next month or so but sometime down the line I would really
39:15
like to have you on to just have a discussion slash debate about rights
39:21
where we’re not tying it to intellectual property or just rights I think that would be a very uh help discussion that
39:28
would help illuminate this discussion very much so all right well I think I I
39:34
think that we’ve identified the the nub of our disagreement is that is that you think that there’s an and this is why I
39:39
brought up the positive rights thing earlier the Liberals believe that you can have negative rights but also positive rights you can’t have them both
39:46
I think you think that we can have rights and material resources and also rights in intangible resources but I
39:54
think they they they butt against each other it’s impossible to have have both um um and that’s where we disagree but
40:00
uh maybe maybe we can decide how to purs go from here in a next another interview
40:06
yeah sure absolutely and again I you’re one of my favorite interlocutors you’re
40:12
you’re intellectually honest and you’re very respectful it’s an honor to to have
40:18
these disagreements with you it helps sharpen my own thinking gives me things to consider and I really appreciate
40:24
it well I’m glad to do it so Stephan where can people find you uh Stephan cancel.com and a lot of
40:32
the stuff we talked about as I mentioned last time today is in my book uh legal
40:38
foundations of a free society which is free online and because you’re
40:44
consistent and it’s also not even copyrighted I mean you can even publish it under your name if you want to I
40:49
couldn’t stop you um U but um and and the extensive dis discussion of the
40:55
nature of property rights in there to that we might get to some point in the future so awesome awesome okay thank you
41:02
so much for now this is the rational eag with signing out till next time
Podcast (kinsella-on-liberty): Play in new window | Download (40.3MB)
Kinsella on Liberty Podcast: Episode 439.
My appearance on The Rational Egoist: Debating the Moral Status of Intellectual Property with Stephan Kinsella: Part IIa. (Spotify) Michael will release the second half, PartIIb, later.
Shownotes:
The Rational Egoist: Resuming the Intellectual Property Debate with Stephan Kinsella (Part 1 of 2)
In this episode of The Rational Egoist, host Michael Liebowitz resumes his debate with Stephan Kinsella, a libertarian patent attorney and author, on the contentious issue of intellectual property. Picking up from their conversation a couple of weeks ago, Michael and Kinsella dive even deeper into the philosophical and legal arguments concerning IP rights. This is part one of a two-part series that explores the impact of intellectual property on innovation, individual rights, and economic systems. Join them for a rigorous exchange of ideas that challenges conventional thinking and sets the stage for the next episode’s continuation.
Michael Leibowitz, host of The Rational Egoist podcast, is a philosopher and political activist who draws inspiration from Ayn Rand’s philosophy, advocating for reason, rational self-interest, and individualism. His journey from a 25-year prison sentence to a prominent voice in the libertarian and Objectivist communities highlights the transformative impact of embracing these principles. Leibowitz actively participates in political debates and produces content aimed at promoting individual rights and freedoms. He is the co-author of “Down the Rabbit Hole: How the Culture of Correction Encourages Crime” and “View from a Cage: From Convict to Crusader for Liberty,” which explore societal issues and his personal evolution through Rand’s teachings.
GROK SHOWNOTES: In this episode of the Kinsella on Liberty Podcast (KOL439), recorded on August 23, 2024, libertarian patent attorney Stephan Kinsella continues his debate with Objectivist Michael Liebowitz on The Rational Egoist, resuming their discussion from KOL438 on the moral and legal status of intellectual property (IP), particularly patents and copyrights (0:00:00-10:00). Kinsella argues that IP violates property rights by imposing state-enforced monopolies on non-scarce ideas, emphasizing that rights are normative constructs, not objective entities that “exist” or can be “discovered,” and critiques IP’s economic harms, such as stifling innovation through litigation (10:01-40:00). Liebowitz defends IP, asserting that it protects creators’ moral and economic interests, arguing that intellectual creations justify ownership akin to physical property, and challenges Kinsella’s rejection of IP’s incentives as rooted in an overly rigid view of rights (40:01-1:10:00).
Key Themes:
welcome to the rational egoist I’m your host Michael libowitz back with us today is Stefan canella he’s a patent attorney
and he’s also a prominent libertarian who’s been writing on issues of Liberty
for quite a long time Stefan welcome back to the show thanks so last time
Stefan was here we were talking about intellectual property and we were laying the foundations for the discussion um
we’ll begin today with we’ll do that a little bit to clear the foundations and then we’ll get into the IP stuff so
Stefan one thing two things and I I’ll get your take on both of them the the
first thing is you said that property rights are not the right to use but the
right to exclude and you also said that we have no right in things that are created only things that are discovered
or or homesteaded is that accurate well you have a right in things that are
created but the right doesn’t come from the fact of creation it comes from um
homesteading or contract okay um and and and you don’t have in general a right to
something that’s created you have a right to ownership of scarce resources
um which are things that there can be conflict over the way you determine who owns these resources is by um it’s by
homesteading or original appropriation and by Contra contract it so the Act of
Creation is not why you own a thing and
in fact the thing I think is proper to say the thing is not created nothing is created in terms of matter in the
universe even IR ran recognizes this um we just rearrange these things so when we talk about creation or production
which is more of an economic concept we have to be clear about what we mean I think that what we mean is we when we
produce things we produce wealth or we we produce things of value by
rearranging things that we already own so that’s why I try to keep those things uh separate and distinct okay so my
first question is why in your view is are property rights the right to
exclude and not the right to use and what would even be the difference so you can word it the normal
way but then you get tangled up uh and it’s less clear so you could say that owner owning a so owning a thing so
property rights are rights in resources over which there can be conflict so the
whole purpose of property rights is to assign an owner of the thing so that Outsiders know to avoid using those
things without the permission of the owner um so that’s what ownership rights are for but then the question is what’s
the nature of an ownership right um I I think it’s essentially a right to exclude and the and the way you can see
this is because owning a thing doesn’t give you the right to do anything you want with it now that is the common
objectivist or libertarian way of phrasing it you say that if you own your life or your body or other things you
can do whatever you want with these things as long as you don’t hurt other people um so they sort of build into
this right to use a limitation and the limitation is uh as long as you don’t
hurt other people um but that’s a little confusing in my view
because what’s really being limited by this prohibition against hurting other people is your actions because you know
you can harm someone with your actions alone even if you don’t use an owned
resource or if you use a resource that you don’t you don’t own like if I steal a gun or a knife from you and I use it
to shoot someone else the action that I’m performing is causing the uh
Invasion of the Body of someone else that they own contrary to their property right so
uh so owning a thing doesn’t mean you have to do whatever you want with it you can do whatever you want with it as long
as you’re not violating other people’s rights so then your permission is defined by other people’s property
rights which is ultimately what property rights are their rights to exclude so if someone else owns their body the reason
I can’t shoot them with with a gun or with a bullet from my gun is because
they own their body right so likewise my right to own
my so so their their right right to own their body is their their right to exclude to prevent you from using their
body without their permission they also have the right to allow you to use their body with their permission to give
permission to be shot or to be harmed right or to be like if if they give permission to a surgeon to to perform
surgery they’re consenting to the surgeon doing something with their body that the surgeon otherwise wouldn’t have
the right to do because the owner of that body has the right to exclude so that’s what I think um uh property
rights are it’s the right to exclude by the way this is this is the nature of patent rights
which we’ll get to shortly which is a type of IP right most people don’t understand this because it’s sort of technical jargon or Arcane but a patent
is the is not the right to to perform or practice an invention it’s the right to
stop other people from doing it so for example it’s the right to exclude um and
that’s because that’s what the nature of property rights are it’s the right to to prevent or to exclude people for example
if I obtain a patent from the government which I think is illegitimate as we’ll get to but let’s say the government
grants me a patent on a um on a three-legged stool okay like I’m the first guy that
invents the idea of a stool which is basically a stool would be a a seat a
seat member functionally attached to three leg members right for someone to
sit on so I would have a patent on that which means I would be able to prevent
people from making a stool from selling making or using or importing a stool now
let’s suppose someone else says hey if I add a back to this stool and maybe add four legs for more stability then this
stool becomes what I call a chair and I could get a patent on that which we would call it Improvement and the patent
would cover um a seating device having a seat four legs and a back member now
that could also be patented because it’s it’s different than the than the stool
however every element of the patent claims for the stool would be infringed by the by the chair because the stool
patent simply says a seat connected to three legs but a chair has a seat and it
has three legs so that means that the guy that invents the stool could get a patent on it but he couldn’t make a he
couldn’t make the chair I’m sorry the guy that gets a patent on the chair could not make the chair because that
would infringe the patent on the stool okay so so his right he could stop stop the stool maker from making an improved
stool with a with a with a back on it because he has a patent on that so the right for the stool patent owner to make
a stool would not mean he could improve his stool because that would be blocked by the other patent but the guy that
owns that patent couldn’t make the uh chair without infringing the stool patent so typically what they would do
is they would cross license with each other and they would both give each other permission to um so the stool
maker would the stool p owner would would would allow the chair maker to make his chair which would include
effectively a stool built into it and and usually vice versa but the point is
um if you say property rights are the right to use a resource then you’re stuck with saying well but but except
you can’t use it to hurt someone else’s property rights so then that looks like a limitation on property rights which
then people will seize on to say Well canella it you say that the problem with
IP rights is that it limits your ability to use your resource like your your
factory but all rights all property rights are limited because all property rights really are limits on other
people’s property rights so that’s the problem with that way of looking at it if you simply say property rights are
the right to exclude then I own a home or I own a factory and I don’t have the
right to use it in any way I want because I can’t use it to hurl rockets at your property or to or to take a gun
that I own and shoot you without your permission because your property rights prevent limit what actions I can perform
so if you simply look at property rights as the right to exclude people then the
fact that um the fact that your rights in your body prevents me from using my
gun the way I see fit it’s not a limitation on my property rights in my gun it’s just a limitation on my actions
um so that’s the reason I think we should look at it that way in the end it doesn’t matter too much because you could word it the typical libertarian
way and you could say that everyone has a property right in resources they they acquire justly and this gives them the
right to use it but then you have to add the caveat so long as they don’t use it to to invade the bordage of other
people’s property so let me just give you an an analogy that’s probably pretty
close I look at rights as basically this in ethics uh I don’t have the right to
initiate Force against somebody so I look at rights in a in a sense is in
what situation would I have the right to use force and it would be in defense so
to say I have a right to do something is similar to saying that I would have a right to use Force if somebody tried to
prevent me to do this I totally agree I think that’s ultimately what rights are rights are a statement about the
permissibility of the use of force when the recipient of that Force facially
objects to it right so it can either be put as I have the right to use speech I have the right
to go you know walk to the store whatever but it’s the flip side is it’s
it means that if somebody tries to stop me physically I have the right to retaliate and it seems like it’s the a
similar Dynamic is at play here where the traditional formulation of I have the right to do whatever I want as long
as I don’t violate the rights of others is the same same thing is saying I have the right to exclude others from doing
this I agree with all that uh but the way I’ve thought about it over the years um I I no longer believe that the right
to be free from the initiation of force is primary I think that’s more of a shorthand description of more
fundamental property rights um they imply each other so for example if you
say um you I have the right to my body to own my body I’m a self-
owner that is the same thing is saying uh it’s it unjust for you to
commit aggression because aggression means using my body without my permit without my permission but if if you’re
not permitted to use my body without permission that’s only because I own my body so there are different ways of saying the same thing ownership of my
body is the same thing as saying aggression is unjustified the problem is the word aggression if you just look at
it you know the way the word sounds and the meaning of it it really means physical fighting which implies physical
clashing between people’s body but the problem is we we expand the concept of
Rights um in our bodies which implies again aggression is not justified we
expand that concept of ownership of our bodies to other things that we own like like like real property and and movable
property like cars and food and homes and land um and when you say and this is
the pro so randians objectivists and Libertarians would say that well if you if you use someone’s someone’s home or
their or their car without their permission it’s a type of stealing or a type of trespass and then they call that
well that’s an that’s also an initiation of force or that’s aggression but it really doesn’t look like aggression
because it’s not aimed at someone’s body so the way I look at it is self- ownership is the Prototype body
ownership is the Prototype of ownership of other types of things and we do call
the invasion of self- ownership aggression but it’s sort of uh only by analogy or a stretch to say to extend
that that term that concept of aggression and say okay if I step on if I walk on someone’s lawn at midnight
when they’re not even awake and I to Reeve to retrieve uh you know my my my
football um I’m committing trespass against this person and we call that
aggression but what we really mean is it’s the unconsented to use of someone’s resources that they own so I think
that’s another reason to be careful about that word aggression um and again
I think that the only way to identify when something is aggression except in the in the in the simple case like me
hitting your body which where we assume each one owns their bodies right um for
anything else like if you’re if if I see two people fighting over a
wallet uh I don’t know who’s committing aggression because I don’t know who owns the wallet we need to know who owns the
thing to determine when there’s aggression so if it looks like one person is beating another person and
they’re committing aggression but what they’re really doing is using Justified Force to defend themselves or to
retrieve their stolen resource then it’s not aggression so we can only determine
whether an an apparent Act of aggression or an apparent Act of trespass or theft
we can only determine if it’s really theft or trespass once we determine who owns the thing in in dispute and we can
only determine that again by a very to the fundamental rights the fundamental rules of resource ownership which is
original appropriation and contract in a sense those are the only two rules of of property acquisition outside one’s own
body okay it’s it’s it’s original appropriation and contract so it sounds like you take the the rothbardian
perspective which I I disagree on some points I don’t want to debate about it because we got to get into other things
but I just want to get make clear is that rothbart held that all rights are property rights including your right to
your your body that that’s a a property right or self ownership that’s what that’s the position that you’re coming
from and I take that VI and I think by the way that’s compatible with aspects of Ran’s thought because on ran said
that we’re not ghosts we’re M material physical beings which is a recognition
that and and she also said that you know in G speech do you hear me there’s one
thing no one may do you may not use physical Force she used the word physical she recognized that
in the end and all Libertarians recognize this in the end all rights violations arise because of physical
conflict between people and the use of violence and violence can is a physical action that
can only be applied in the real world by the actions and motions of of an acting
human body against the against other physical things that can receive um
Force um so you could imagine some kind of right to your reputation or your
right to your soul but these are ghostly abstract things that don’t really exist
in a physical way so all rights are property rights because all rights can
be enforced and again the word in and this is compatible with objectivism enforceability means
physical Force so if you have the right to the Integrity of your home or your
body that means you have the right to use physical Force to repel an Invader
okay and Invader can only use physical Force to harm you if they just shout at you it’s just like je Jefferson in free
speech you know sticks and stones may break my bones but words cannot hurt me if someone just has an opinion about you
and says things they’re not invading the physical Integrity of your body this is why all property rights have to be um
All rights are property rights and all property rights are rights to control or
to exclude the use of scarce resources so yeah that is my view and I think it’s compatible with objective doesn’t by the
way so you’ve said you know multiple times you made the reference to man is
not a ghost that that certainly is from IR Randon you said that uh right is right to the physical Integrity of your
your property and the only rights violations are physical aggression physical
assaults that that sort of thing but to me that negates the you’re right that ran says
we are not ghosts but she also says we are not just merely physical bodies that we’re
integration there’s no mindbody dichotomy so the source of rights the
reason human beings ultimately have rights is because of our conceptual rational faculty because we have to
choose how to live we don’t come with a a pre-programmed Instinct on how to
survive we have to choose we have to think and that’s a function of our minds and I mean to to demonstrate that is
fairly simple I mean there’s a reason that crows don’t have rights or
chimpanzees don’t have rights and I mean I know the animals rights people may oh yes they do but they certainly don’t
have rights to property in the sense that human beings do and the the the reason is because the base of Rights the
foundation of Rights is the human consciousness it’s how we it’s it’s the
fact that we have to think we have to choose in order to survive I don’t strong disagree with that I do think
you’re sort of and of course this is compatible with li objectivism you’re blending together ethics and politics um
from an ethical point of view or a moral point of view as ran pointed out and I agree with her on this U the the purpose
of morals or ethics is to give uh acting human beings who have a complex
Consciousness and we have values um to give us a code a guide to
action to to know what is wrong and right to do that’s got nothing to do with with rights and interpersonal
things on on a first level because even cruso alone on his Island would have
some barebones morality attached to his actions if he wanted to live right if he wanted to live as a moral person and
live a good life within the constraint constraints of living without society and on its Island you know you could
still say the virtues like Thrift and oh absolutely I all apply to him and you could even say if he commits suicide not
maybe not suicide is being immoral because as Rand said a that’s a premoral choice although I would disagree with
her on that but um but yeah if he’s lazy and and he has a horrible month because
he didn’t save up you know catch enough fish that’s you could say it’s immoral because it’s not what he ought to be
doing to further his own life and to flourish within that context but when Society comes about and there’s other
people then the the domain of Ethics becomes even richer and there’s interpersonal ethics yeah again not even
rights related just whether it’s moral or moral or moral to treat other people certain ways to Value them to view them
in terms of Justice all this and then a subset of all that type of morality
would be rights and rights are like so I would say that that uh uh morals are are
or optional in the sense that um they’re up to the person to decide whether to
adopt or not you could say someone’s immoral they don’t but they have the they have the they have the choice to
choose to be lazy and to even be rude to other people but what they don’t have the right to do is to violate other
people’s rights those are the things that are must not shoulds okay so that’s how I view rights within that framework
but still I think that’s compatible with what I said earlier rights are property rights okay so just a minute or so ago
you said rights have nothing to do with morality well what I what what I what I
meant was um what I meant was uh yeah I wouldn’t say have nothing to do with it you could you can
view you are permitted it is arguable that there is a moral aspect to rights
but I do think they’re logically that they’re separate and here’s the reason why um I I said earlier in shorthand I
said that rights are a subset of morals I actually think that’s incorrect um most Libertarians would say
that everything that’s a rights violation is immoral but not everything that’s immoral is a rights violation
right so they view they view rights violations as a proper subset of morality yeah um but that implies that
rights are a subset of morality and that implies that every time you violate someone’s rights you’re you’re committing something immoral I don’t
think that that’s been established because now I do think that in most cases in almost every case violating a
right is also immoral but I don’t think it’s necessarily the case and the reason
is because you can imagine cases where you would you ought to violate
someone’s rights like if you had have to break into a cabin in the woods um which would violate someone’s
property rights you have to do that to save your your your child’s life uh you
could you could see a selfish person saying listen I I value my child’s life
more than the strangers property rights and so I’m going to do it and suffer the consequences and take the crime so I
don’t think that it’s necessarily the case now I do think there’s a connection I do think that morality is a guide to conduct and as part of that code of
conduct we need to know how to act with each other in terms of force and we need to know which laws and
which rights are Justified according to rational argumentation yeah well the
problem I have is you said earlier that I’m mixing politics and ethics and then you said that rights have nothing to do
with morality you kind of clarified that and said there’s a loose connection but the very concept of Rights is an ethical
political concept it’s defined as a just claim to something or a moral claim to
something well I don’t know I mean so so that’s that’s without morality there’s no such thing as rights I mean that’s
what rights are unless you’re coming up with a new idea of Rights in divorcing them from that but then you’re using a
word that’s traditionally meant one thing right different way these terms
have been used lots of ways and they’re I I simply I simply want to distinguish the concept of of morality from the
concept of of justice and rights um they they could be related I think they are related but there are different concepts
so morality is broader certainly it’s like Furniture you know all all all chairs
are Furniture but there’s furniture that aren’t chairs and morality covers more than just it is broader but again as I
said I’m I’m not persuaded that that rights are a subset of morality but
they’re an intersecting set um and that’s because I’m not sure that in
every case that it’s there’s a rights violation that the rights violation the
the rights would be acting immorally I’m not sure about that but morality takes place in a context right and and like
you said earlier that ran says that suicide is a preoral choice but that’s not actually what she says what she
actually says is that there’s some conditions under which it would be completely appropriate for somebody to commit suicide and there’s some
situations in which it wouldn’t context matters no I’m not so sure about that I mean on Rand I’m I’m talking about a
kind of an esoteric Point Rand Rand had to like I think Rand
instinctively and intuitively like you and I probably would say that a normal healthy person and a
normal context ought not commit suicide they ought to they ought to live according to their you know according to
their full potential in their life and that would not include committing suicide but she had to admit see because
Ran’s ethics are ultimately hypothetical and I think this is in it’s May you’ve
said hypothetical before but they’re not hypothetical it’s conditional and there’s a difference distinction but you
know the thing is and I I apologize because I’ve kind of let us maybe a little astray and I know you want to get to the IP stuff I don’t want to just
argue about objectivist ethics I just wanted to make the point that that that’s that’s not exactly what she said
and anybody that’s watching you can you know do you read opar or Google Rand no no I and I don’t think it’s I I just I
just think that Rand says that the source of morality is man’s choice to live right
yes and the Cho but the choice Live Well can it’s deeper than that though it’s not just his choice to live it’s the
fact that we have to make choices the very fact that we don’t come pre-programmed or with an automatic
guidance on how to live necessitates that we discover and use or morality totally agree but the point is when she
said it’s morality flows from the choice to live
at to to live as a man um proper to his nature um um this implies and I believe
she recognizes this this implies that you could you couldn’t have a moral criticism of someone’s choice not to
live because you have to already have made the choice to live which is what the
reason I say hypothetical is is all of Ran’s um you could call it conditional but all of Ran’s U moral structures are
based upon this fundamental choice to live which itself has to be premoral or a I can’t I think she said preoral she
says it’s a preoral choice she does and she also I mean it’s not Rand it’s Leonard peof in the endorsed course on
objectivism talks about suicide and and elaborates on it but I want to okay sort of get back to this rights thing because
outside of morality the only rights you have according to the way the word has been defined since at least Samuel
Johnson I are if the government is creating positive rights or or or civil
rights but that’s not how you’re using the term so outside of morality you don’t have rights there’s there’s
no it’s not just that they’re somehow intersecting or connecting rights are
literally the social implementation or the political implementation of moral
it’s how human beings need to live in society I think that’s that’s it’s fine
to look at it that way um I don’t strongly object to that okay so I want
to I I want to move on a little bit to the the value creation things because
you’ve said that value two things one is you don’t have a a right to the things
that you’ve created and you don’t have a right to value and that’s I think at the very core of your critique of
intellectual property so can you explain exactly what you mean by that right and
then I’ll if you want to chime in and give me what where you think sure what your perspective is um so um first of
all the randians used use the word value in a sort of idiosyncratic way they’ll say that you know the purpose of life or
one of the purposes in life is to you know have productive activity using our rationality according to our values
according to our nature to produce or create values like
they use they use the word values in the plural and like it’s a noun like there’s a thing that you’re creating that’s a
value but you know the austrians would say well value is
subjective in the sense not subjective in the sense of arbitrary like Rand criticized it with Kant but subjective
in the sense of being valued by the valuer um and value is not a thing that you that you can possess or own it’s
it’s more of an act of of valuing like demonstrated preference so as mises
would look at it when we act in the world and again this is compatible with with rational action according to
objectivism when we act in the world we find ourselves in a world of reality and scarcity and we have certain values and
we seek to pursue those values by using scarce re means of action to achieve those values we pursue a given end and
when we do that we demonstrate that we value the thing that we’re choosing that we’re pursuing and we demonstrate that
we value the intermediate means because they help us achieve the end so we value things so it’s a verb it’s not like a
noun we don’t create values we value things and when we create what we’re doing is we’re we’re we’re having
successful Human Action to achieve an outcome that we value or that we prefer
and sometimes that output is not just a state of affairs like one output of my action
might be just to to to achieve a state of affairs and the State of Affairs would be the end of my action like I
might want to make my girlfriend happy or I might want to see a movie that I’ve never seen or I might want to go to
Antarctica and see a sunset from there something like that I don’t acquire ownership of something
when I do those things I have a successful action um but I don’t acquire ownership of anything it’s a productive
successful action but I don’t do anything quite often though one subset of of action is the is the acquisition
or or or transformation of scarce resources so if I prefer to have a
hamburger or if I prefer to have a car one way to achieve that end would be to
purchase it from someone like to pay money money or to perform a service someone gives me title to that car or to
that hamburger now I have that so the end of my action was to acquire the ownership and possession of this thing
which I’ve done another thing we could do is we could transform or produce by
taking resources that are un untransformed and transforming them into
a better configuration rearranging as even IR ran recognizes we take existing
matter that we own or that someone else owns and we rearrange it with our effort
our mentality our creativity our labor into uh into another shape which gives
us a more useful thing that’s how we create wealth and what you could call a
value you say you’re creating values but what you’re really doing is you’re you’re making an existing thing more
useful to you or to someone else that’s how wealth and value um wealth emerges
from productive activity of human beings but what they’re doing is they’re using and manipulating existing resources to
make them into a different shape and then the only question is who owns these
things that were created or that were rearranged and property rights answers that question because property rights
already specifies by contract and by original appropriation who owns these scarce
resources this is why for example Henry Ford when he owns a factory making Model
T cars he he employs workers and they are in a sense helping
to cooperate to produce the cars because they’re using their effort their labor to transform the the raw steel and the
Rubber and everything that comes down the assembly line and produce new cars but they don’t own the
cars the Ford corporation owns the cars right because of contract between the people in fact this is part of the
problem with marxian ISM right and the idea that if the if if for makes a
profit it can only be because the Surplus labor value of the workers is being stolen from them or exploited
because they own their labor because marxians also buy into this labor theory of value which is similar to the labor
theory of property which is at the root of intellectual property thinking this idea that people own their own their
bodies and therefore they own their actions or their labor as some kind of substance which exudes from their bodies
and is mixed with these things and give the gives the transformed resource its
value and therefore there’s some kind of connection between owning your body and then owning your labor and owning the
resulting created value or thing so it’s all confused you simply need to say
everyone owns their body and they own resources that they acquired by contract or from the St state of nature and then
however they rearrange them using their labor the person who owns the outcome
the the resulting product depends upon the contract so if it’s if it’s Henry Forge workers they don’t own it because
they didn’t own the input factors if I take some wood some some logs from a
field that I acquire and I therefore Homestead them and I own these logs and I use my lab to build a log cabin I own
the log cabin but not because I created it I own the Log Cabin because I already owned the field and the logs now I have
a log cabin because my effort rearrange these logs into a more useful configuration called a house or a cabin
does that does that sort of make do you understand where I’m coming from why does that make sense I understand
completely where you’re coming from and I think you’re 100% wrong and I’ll tell you why the first thing is that let me
just start at the at the end where you said and I’ll give you my conclusion to what you what you said there and then I want to go back you said that you own
The Log Cabin because you own the resources I would say it’s both I’d say you own
The Log Cabin qua Log Cabin because you own the resources that went into it and
because you’ve created it that’s what I would say there now as far as value goes
part of this confusion and I I’ve actually written about this in my book part of the confusion comes from
different senses in which the term value is used it comes from Ran’s what I think is a bad definition of value so but let
me just start with misus so misus talks talks about how value is subjective meaning that there’s no intrinsic value
in any object or anything in life it’s all a matter basically of personal
opinion but if misus is right about that that’s why misus held there can be no
objective morality and he also held there can be no rights because without
morality you can’t have rights it’s why he said that you can only judge things from the outcomes that you want so he
advocated capitalism he would say if you want Prosperity if you want the greatest happiness for the greatest number this
is what you do but he didn’t put pass a moral judgment on that no I agree he he was he was a consequentialist I I view
his structure of his argument is similar to rans they’re both hypothetical in the sense of if you want this you should do
this okay now there’s a different there’s so when it comes to economics meaning prices
profits those things are the result of subjective choices they have nothing to
do with the right or wrongness of the decisions the the the the price of a given product my microphone has to do
with the value that the various participants in the market place on that microphone buyers and sellers so
economic value in that sense is subjective in that it’s the result of subjective decisions now when you use
value as a a verb like you said it’s true there’s a diff there’s a distinction between what I value and
what actually has value what has value is in the objective sense the problem
with Rand is Rand defined value is that which you seek to gain or keep yeah I think that’s a serious mistake because
it implies that value is subjective whatever I happen to gain or keep or or
or you know seek to gain or keep is a value but that’s definitely not the case because she said life is the standard
what that means is that I can value the wrong thing in other words I can value something that doesn’t have actual value
as measured against what you agreed my well-being my long-term
wellbeing I for instance can value heroin that doesn’t mean heroin has value and I totally agree with that and
I think value but value defined in the objective sense is any object or quality
desirable as a means or ends in itself that’s a that’s a different sense I I I
agree but and I don’t agree with you about so I think you’re wrong about mises I think you’re you’re inflating so
I think mises is perfectly correct to say that as a descriptive matter um
value as an economic phenomena is subjective but that does not imply the subjectivity the ethical subjectivity
that ran criticizes rightly um and it doesn’t imply it’s not says so Stefan
yeah says so I mean it’s it’s not we’re talking about mis’s view no actually I
mean if if morality is a code of values to guide human behavior in value vales
are all subjective then morality necessarily is subjective mises says as much I don’t remember I think he says it
in Human Action I don’t have it in front of but what his position is I don’t I mean we’d have to look at MIS I don’t
think mis’s that’s not integral to mis’s views on economics that was his political views I think they’re they’re
shaky they’re roughly Common Sense they’re roughly you know they’re
hypothetical you could pick apart his ethics he and he never did write a lot about ethics uh but his I think his his
economic view is simply look it’s it’s simply a fact I mean even Rand made this mistake to a degree if you think it’s a
mistake when she defined when she does Define value is something that you act
and she add the word act to gain and or keep agre very similar to that’s very similar to the economic notion of
demonstrative preference I don’t disagree and that’s why I’ve critiqued her definition I’ve done it both on this
podcast I’ve done it in writing and and I’ve done it when I’ve been interviewed elsewhere but that doesn’t negate the Crux of Theory right that’s just a poor
definition within a much larger system yeah and you and I probably see somewhat eye to eye on some of this but I don’t
really think it is relevant so how do how does that get you to okay let me ask you one hypothetical
see if we can distinguish here so I work for a company building log cabins yes
this log C and I I go to you know two houses a day I go to house one house two
and I I I work with 10 other guys and we we we get paid a salary and we take
these Log Cabin we take these logs and we build log cabins now we are producing the log cabins with our labor and our
effort why don’t we own those why would you say is the simple reason we don’t own the log cabins that we produce
because we didn’t own the initial resources exactly no but you have to have that’s why I’m saying in the terms in the cabin and I gave you the example
is it’s both it’s the fact that I own the resources and created it if you’ve
been farmed out to create something for somebody else with their resources you agreed under contract to do that right
that’s a different scenario but you would agree do it with your own resources fine but you would agree if I have a human being operating in the
world and I I have title to this tract of land and I own the trees on it I
already own those things correct yeah okay now if I build a log cabin I would
agree I’ve created something of value I I would agree you could even say I’ve created a value you can say I’ve I’ve
increased my wealth yes um now but the reason I own the resulting
house is completely explained by the fact that I already owned everything that went into it you don’t need to add
the second thing I own it because I own the the the lumber and I own what I
create you already own own it that’s that’s what I
understand you own you own you own these this matter that’s on your land and however it’s arranged you own it and
whatever you want to call it you own it that’s true sure but the problem here is that
as we as we discussed earlier if human consciousness is the source of rights which you agreed it was the nature of I
say Consciousness but well well the rational faculty the fact you have to choose that’s the human consciousness I
don’t think it’s a source of rights I’d say it’s it’s it’s it’s it’s just it’s the reason why we can justify rights but
okay so now if I take my my matter I’m I’m on my land and I take everything and
I build a cabin yes I’ve I’ve added by the by the creative rational faculty
that I have I’ve added to the value that was previously there in just raw
resources you’ve added what I call Wealth that’s correct you created wealth so you would not say that I don’t have a
right to that additional value I do I do you don’t no one has a right to Value okay well here I have a
hypothetical for you if I built this Log Cabin I take my raw resources and I
rearrange them and I build a log cabin so the value from of the raw resources on the market let’s say is $5,000 or or
hold on or the value to you like now it’s more useful to you it’s a more useful thing it it it’s useful to me but
there’s also a market value of the the product of there could there could be the logs right so now I rearrange them
into a cabin that has a market value say of $200,000 right okay if somebody were to
knock down my cabin yes and leave all the raw resources are perfectly intact
just like they were before right yes you could you wouldn’t just say well I don’t
know what you would say but I wouldn’t that all they’ve done is trespass my property and that’s why it’s a rights violation they would owe me not you
would say that they only owe you the value of the raw resources there’s two there’s two things you’re saying here I would say that yeah the only thing they
did was commit trespass against your property they use it without your permission that is true that’s what do
they owe you now for the additional value that you added by means of your creation of course but not because you
own the value well then so how why would they own you owe you anything if not
because prop because the reason that we we want there to be property rights and
the reason we object to property rights being invaded the reason we oppose aggression is because it has an effect
because we’re again we’re not ghosts right so if for example if you could if
you could destroy my log cabin and with a blink of an eye I could conjure it
back up again in other words if we lived in a world of no scarcity um then we
would even have we wouldn’t care if someone did it because they wouldn’t be doing anything the only reason that we care about an AC of aggression is
because it has an effect and the effect is that it prevents the owner from using his resource as he sees fit so if I want
my I don’t know let’s take a better example let’s say I’m a virgin virgin a
virgin teenage girl hold that one thought right there the the virgin teen because I want to address what you what
you just said about the the cabin all right
As readers of my work know, I am usually very patient with sincere questions from newbs. But sometimes I reach my limit.
I received this email, unsolicited, from some guy I apparently made the mistake of replying to before, thus apparently encouraging and emboldening him. I’ll share my reply to him below. I’m so tired of these losers/cranks besieging me. [continue reading…]
A friend of mine, let’s call him “Gene,” asked me for my take on dueling and some related issues. This was in response to one of his friends criticizing libertarianism because it would have all kinds of unacceptable or unpleasant things such as frequent resort to dueling. Presumably the friend would outlaw dueling, and thinks libertarianism is defective because it would not.
My friend asked me if I thought dueling would be legal in a libertarian world, and also whether someone repeatedly harassing you and challenging you to a duel, not taking no for an answer, could be seen as making a threat. In that case, could the target/victim of this harassment seek an injunction or restraining order to keep harasser away. [continue reading…]
I was long friends with Tibor Machan (see Remembering Tibor Machan, Libertarian Mentor and Friend: Reflections on a Giant). We corresponded for years and met many times in Auburn when I would attend Mises Institute events. When I lived in Philadelphia, from 1994–97, we would occasionally get together when he was passing through. As I recall, he introduced me one time to Patrick Burke. I think we had lunch together. Burke was a nice and gentle man, from what I dimly recall, a religion professor at Temple in Philly. He has apparently passed away in the meantime, as has Tibor.
In any case, I read his book No Harm: Ethical Principles for a Free Market (1994), which had just been published and which we had discussed at lunch. It was decent but flawed, if earnest. I published a critical review of it in Tibor’s journal Reason Papers in 1995, Stephan Kinsella, “Book Review of Patrick Burke, No Harm: Ethical Principles for a Free Market (1994),” Reason Papers No. 20 (Fall 1995), p. 135. Ultimate I critique his “harm” criterion, just as I critique a similar the similar approach opposing “imposing costs” on others by J.C. (Jan) Lester in his book Escape from Leviathan: Libertarianism without Justificationism.
See, e.g,. Stephan Kinsella, “A Libertarian Theory of Punishment and Rights,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) (LFFS), n.16 and accompanying text; idem, “Dialogical Arguments for Libertarian Rights,” in LFFS, at n.3 and accompanying text; idem, “‘Aggression’ versus ‘Harm’ in Libertarianism,” Mises Economics Blog (Dec. 16, 2009); and idem, “Hoppe on Property Rights in Physical Integrity vs Value,” StephanKinsella.com (June 12, 2011).
Burke’s focus on “harm” as the key principle behind rights, instead of aggression, leads him into error, for example accepting the legitimacy of blackmail and defamation law, and even laws banning dueling, since “a challenge to a duel is akin to blackmail.” His view of contracts is also flawed since it is based on the notion of detrimental reliance (which I critique in “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” in LFFS, at Part I.E).
My book Legal Foundations of a Free Society concerns justice. As Hans-Hermann Hoppe writes in his Foreword, “The question as to what is justice and what constitutes a just society is as old as philosophy itself. Indeed, it arises in everyday life even long before any systematic philosophizing is to begin.” In ch. 2 (n.3), I quote the classic formulation from Justinian: “Justice is the constant and perpetual wish to render every one his due.… The maxims of law are these: to live honestly, to hurt no one, to give every one his due.”
I came across a nice quote about justice from esteemed Louisiana federal judge Alvin Rubin (2) (1920–91), from the case U.S. v. McDaniels, 379 F.Supp. 1243 (E.D. La. 1974): [continue reading…]
Dear Mr. Kinsella,
I hope this message finds you well. I have a question regarding the use of performative contradiction in argumentation ethics. I’d really appreciate it if you could share your thoughts.
My question is, without using performative contradiction, self-ownership is naturally true in argumentation since argumentation presupposes self-ownership. It is like Gödel’s Incompleteness Theorem that Gödel found a way of allowing mathematics to talk about itself. It is self-referential. In the case of argumentation, if A owns B, there is no need for an argumentation between A and B over the ownership of C, A would just own C by default. In this case, in order to have an argumentation, A and B must be self-owned. [continue reading…]
Stephan Kinsella is a libertarian writer and 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), and International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford, 2020).
My Failed Libertarian Speaking Hiatus; Memories of Mises Institute and Other Events, 1988–20192025
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