okay hey this is Stefan kinsella I’m doing part three of my tutorial and uh the number of intrepid

people tuning in has declined from week to week which shows how fascinating IP

law is but still I thought it’d be good to get this um recorded for future use

um this will probably be kinsella on Liberty episode 412 312 wherever we are

um uh kinsella IP law tutorial part three so in the earlier uh episodes I talked

about uh just a general overview of what IP law is and then patents in lecture one and then

in number two I talked about copyright and today I’d like to talk about the remaining types of Ip I’m not going to

go through them exhaustively uh because it would be tedious and that’s not really the point but it’s just to kind

of give people a vocabulary for uh distinguishing between types of Ip law

um and so as I mentioned in previous lectures I’m on slide one right now I’m

going to go to slide two um I’ll talk about slide two in a second

but um as I mentioned um in the last lectures

um there are like four main types of so-called intellectual property that’s patents which has to do with inventions

copyright which has to do with creative or artistic works and then there’s trademark

and trade secret and then there are other subsidiary types that are pretty new inventions uh non-inventions pretty

new legal Innovations in the last 50 years so let’s talk about trademark next but

before that I had a couple of questions uh between the last talk and today

um I wanted to mention something I think I talked on this briefly touched on this before I tried to emphasize that all IP

law is domestic just like all regular laws domestic so if you own a home in

America or Australia or Poland then the local domestic law which in international law

we call that Municipal law is what governs your property rights say in your home

and if you are you know assaulted in an active crime your rights in your body or

your rights not to be assaulted or covered by the local criminal law so all rights in a sense are domestic or or

um uh or municipal or local um now in the case of tangible resources

like your body or a car or a house it it it wouldn’t make a difference

about uh as to whether this right was recognized internationally or domestically because there’s only one

you know you only want own one car or one body or one house so the relevant

law that that has jurisdiction over that is the one that has an effect it doesn’t matter whether it’s based upon your your

city or your county or your state or your country or your region

um or or internationally there’s still only one piece of property to protect

but when it comes to International I’m sorry intellectual property then we get to this sort of weird situation where

so you have people accusing China uh violating uh American or

Western uh IP rights so they’ll say that China steals IP

um now they’re they’re just technically legally wrong about this because China

well China is a country or Chinese companies can only violate Chinese law they can’t violate there is no

international law of copyright or patent there are international treaties that China and other countries have signed on

to and these treaties require these countries to implement in their National legal systems in their Municipal law

um patented copyright law and trademark law which adheres to minimum standards and

most of them do this like they sign on to the burn Convention of the Madrid Convention of the Paris convention the

Paris cooperation the patent cooperation treaty or the Paris convention or a Waipio or gat and they comply with it by

they by enacting local laws and then they enforce those laws in their courts no country’s laws are perfectly enforced

in any realm in murder or or trespass or or IP infringement but

China has an IP law America has an IP law European countries have IP laws and

they all enforce them to varying degrees of of efficiency in their own in their

own government courts so it’s just wrong to say China steals uh Western IP it’s

like literally impossible at most you could accuse them of not having sufficient IP laws but they do

because they’re in compliance with debating treaties or you could say that they don’t they don’t enforce their laws

um as efficiently as the Western countries do but you know what’s the difference between 70 and

62 enforcement uh they’re all inefficient and they’re all

um just different ways that inefficient government courts enforce their and their legal systems enforce their state

laws so now someone had a question um I had mentioned that since the United

States uh exceeded to the burn convention in the 1980s and since West other Western

countries and most countries in the world now are parties to the burn convention that you no longer need

what’s called copyright formalities to have a copyright uh which means you don’t have to put a copyright notice on

the work and you don’t need to register the copyright in the in the National um copyright

excuse me agency in your country um and someone said I I I read somewhere

that um you need to register the copyright in America before you file a lawsuit is that correct and yes that is

correct and that doesn’t contradict what I said to have an enforceable copyright you don’t need to register it

um you have a copyright from the moment that you fix the original work of expression in a medium like you know

this is as soon as you write it down basically you don’t even have to make it public

excuse me I’m copying I’m coughing here you don’t have to make it public that is you don’t have to publish it it can be secret

could be a private manuscript might be harder to prove then but theoretically you know you have a copyright as soon as

you fix it in a medium of expression a tangible medium of expression

um and you don’t need a copyright notice anymore and you don’t need to register it now before it as a technical matter in the

American system and I’m not sure how the other uh countries um legal systems work but before you

file a lawsuit in federal district court in the United States accusing somewhat of copyright

infringement you do need to file a copyright registration in the copyright office at

the Library of Congress and that takes like 25 or something is very cheap and simple it’s just a form it’s easy it’s

just a formality it’s sort of like before you sue someone you have to send a notice

um or something like that it’s just a formality so you do have to register a copyright in the United States before you file a lawsuit but you don’t have to

have a registration or you don’t have to file a lawsuit to threaten someone and to extract royalties from them

which is the predominant way that copyrighted used or to send a copyright takedown notice to YouTube and make them

take down a video something like that okay now I’m going to go to slide three now

again this this tutorial series I’ve talked a lot in other lectures and and and and

writings about um um the legitimacy of patent and

copyright and other types of Ip law from a Libertarian and economic point of view

but in this tutorial series I just want people to understand what the IP law what the light what the laws are and

I’ve already talked about patents which cover inventions and copyrights which cover

um uh creative works and I’ve already mentioned that um the patents the

problem patented copyright of the two big ones that’s why I mentioned them first they’re the ones that do the most damage they’re the ones who get the most

attention and they’re the classical types of Ip um and they both originate statute and

uh patents distort and impede technological innovation the impoverished the human race that’s

why I focus on them that’s why we don’t live in a Jetson’s world or as much of a Justice world as

we could and copyright distorts culture and freedom of expression in the Press and threatens internet Freedom okay and

it’s increasingly copyright is increasingly used to um to uh impede uh practical freedoms

like the ability to repair your your your own property like an iPhone or a

tablet or a computer or a tractor or a car because there they have uh they have

software in them now in the form of ROM or chips or or some kind of little

computer in them which and the software is covered by copyright and so the the

companies that sell these products use their ownership of the copyright to restrict what you can do with them which

you know makes the products less valuable to you because now you have to pay money to official licensed retailer

or someone to repair it or something like that so you see how copyright is also harmful in the Practical space

all right slide four I already talked about types of IP copyright and patent of the two main

types and in the United States they’re both federal or national and there is no State version of that

because the the versions of of state law that did exist before the United States Constitution was

ratified in 1789 were basically preempted either by the Constitution in

1789 or by the copyright and patent access 1790. does someone have a question sorry

okay um now the other two types would be

trademark now trademark is a state and federal hybrid system which I’ll get into in a

minute and trade secret those are the big four types which is mostly State although there’s Federal aspects and

then the other specialty types are boat hole designs which is sort of a type of copyright

um semiconductor mask work protection which came about in the 80s which was a special Congressional law passed in the

United States to protect the semiconductor industry because it originated here and yeah Texas Instruments and IBM and Intel and these

kind of companies you have database rights in some countries um which

um was needed because in some countries the courts would hold that copyright doesn’t extend to

databases because copyright only extends to original Creative Expressions and a database is

just a collection of facts uh even despite how much no matter how

much time it took to assemble the facts like let’s say you made a map of the Earth or a database of every you know

phone book something like that it’s very useful it takes a lot of effort to do it but there’s really nothing creative about it you’re just assembling facts so

copyright doesn’t apply to that in every jurisdiction so database rights were created to handle

that in some countries I think the United States has never done that yet moral rights are sort of related to

copyright but it has to do with your in the the inalienable rights of the creator of an artistic work to be

recognized as the Creator like that’s attribution or credit and also to

prevent it from being destroyed later um like a mural or something like that on a

building or on a refrigerator or whatever uh then there’s special protections as I mentioned in previous lectures like newspaper like uh you know

a special government seals like the National Security Agency seal or the CIA seal and then of course you know in

certain certain cultures and countries and religious systems or just practically you know you can’t reproduce

certain religious accounts or figures without uh being interprety

um and then there are proposed rights in different countries for uh sort of a

quasi-intellectual property right in newspaper headlines or linking to them or fashion designs I believe that Canada

is freaking out right now because Facebook is threatening to block Facebook from Facebook’s feeds if

Canada’s new law is going to force Facebook to pay a fee to uh to companies

whose headlines it links to or something like that so um you have extensions of these and then

defamation which is not usually considered to be a type of IP right I’m going to go into this later and explain

why I think it should be and why it’s it it’s illegitimate just like all forms of IPR okay but so today I’m going to talk

about trademark trade secret and defamation if we have time

okay going to slide five now okay trademark we’ve talked about patents

which have to do with inventions practical devices or processes copyright which is creative or artistic works like

a novel or a painting or a movie um a trademark uh and by the way there’s

something in America we use the term in intellectual property to refer to all these types of Rights because they all

have to do with legal protections for creations of the intellect things that are not tangible

corporeal material things like boats or cars or land or sticks or dogs or cows

but intangible things that are the product of the Mind uh my understanding is that in Europe

the term industrial property is sometimes used but I think it doesn’t cover copyright because that’s created

it covers the patented trademark and maybe Trade Secrets because they have a sort of industrial use but I think the

term is blurry and maybe it includes copyright now because it’s come to be seen as a a rough European substitute

for the American term IP or intellectual property so industrial industrial property or

intellectual property anyway they all cover all these types of things copyright is one of them too usually

a trademark we’re all used to trademarks the trademark is a Mark I mean the word is in there the word Mark it’s a symbol

or a name or a word or a device or something used by a person or a company

to identify the source of goods or services

okay so um you know you give you give your product or your company or your brand a

name or a mark to distinguish it from the ones from other companies

um so consumers can tell the difference right and so you can stand apart and so you and it goes along with your

reputation so it lets consumers make decisions then it allows the companies who own these trademarks

excuse me um to um

um to um to profit off of their reputations right that’s the that’s the idea behind it

okay slide six um in the U.S in 1995 the United States

Supreme Court in the qualatex case you know kind of explain the whole purpose of

trademark law as being to prevent others from copying a source of identifying Mark to reduce

the customer’s cost of shopping and making decisions to quickly assure the potential customer

that the item with the Mark is made by the same producer as others similarly marked in the past

um and to help the producer re you know reap the rewards of building up a reputation for quality in that given

product line okay so that’s the purpose of trademarks I had some different ways of using

trademarks for brand names or for slogans or for Logos like if you’re on slide seven some examples like Coca-Cola

which is a word mark That’s Just Coca-Cola is the the word Mark which identifies products made by the brand of

the Coca-Cola Company and then their slogan it’s the real thing that’s trademarked and then you

could have a logo like they’re always Coca-Cola thing or even the shape of their bottle right

um you can have other things too like sounds or colors you know like this pink

color for some kind of insulation for your attic or maybe the yellow color for

a certain type of sweetener or the or the pink color for a packet of sweetener or blue for another type you know so you

have different colors you have scents and smells motions Holograms

configurations or shapes like uh like the Coca-Cola bottle shape which is somewhat functional but somewhat

identifies the Coca-Cola brand name and I gave and slide eight I give some other examples the Apple the Apple symbol the

Coca-Cola um word Mark stylized not just the words

themselves but the way it’s it’s you know sort of the typography Amazon’s logo Google Samsung McDonald’s Microsoft

the Nike Swoosh Ford ignore usbto that’s where I copied this from or one of their slides okay

and a recent a recent trademark dispute was uh just recently um

um this is slide nine um there’s a famous uh um guitar brand called Gibson and they

have something called The Flying V you see the picture at the bottom here the Flying V is the top over the bottom

the bottom one I forgot what it’s called um and then a company called Dean made similar shaped guitars and of course

they were sued by Gibson for trademark infringement even though they were making an actual functional guitar

the idea was that you can’t sell a guitar with that shape to the bottom part

um if it because it would make people think it’s a Gibson or something like that so

um anyway now in the United States as I mentioned earlier um patent and

copyright or both federal laws they’re National and in most countries are National most countries have a unified

National system anyway so in most countries all these laws are National in

Federalist systems like the United States where the private law is largely made by

the states and not the federal government there are certain fields of law where the federal government

has dominance or has preempted the field so for example in any trust law in the

United States or in tax law maybe um there’s only federal law there’s no

um there’s no um there’s no well I don’t know if there’s State anyhow but anyway the federal antitrust law would not would dominate

um Let me let this guy in um and that’s that’s what’s happened with

patent and copyright because there is the clause in the Constitution which I mentioned earlier which I repeat here

Article 1 Section 8 Clause 8 it grants to Congress the the power to promote the

progress of science which means the the Practical knowledges and the useful Arts

which meant creative Works um I actually got that backwards science but the creative creative works of of a

of novelists and Painters and people like that and useful artists inventions so anyway the point is patent and

copyright the acts in 1790 passed by the Congress were were authorized by the Constitution

and that’s why those are federal or national Fields now

in the 50s up until the 1950s in the United States trademark law was mostly a

state-based thing because it was sort of like you know laws against murder marriage laws divorce laws Community uh

uh uh property law those are all handled by the states every state like in all

all the 50 states in America had their own little independent systems mostly common law base but you know it was the

private law comes from the states and the FEDS only can interfere in the areas they’re given permission to do that so

trademark law was one of those just like defamation law and trade secret law these were all state-based laws and they

all came from the common law of England and the states were the ones that in the United States when they seceded from

England and went from being colonies embodying the common law in their in

their colony courts to becoming states with their state courts they just kept the common law tradition alive and they

kept the private law of property and crime and torts and you know

um things like that including defamation and uh trademark and trade secret so

that’s why these things were state laws well there was a movement towards to to make the law National and uniform across

the country in the 50s just like patent and copyright had already been nationalized in 1790

because of the Constitutional Grant but there was no constitutional Grant

for the Congress to enact a trademark law so instead the Congress

relied upon um the Commerce Clause power which they’ve relied upon many many many times

in the last 100 plus years to enact laws where there was no Express Authority

given to them no power enumerated to enact a given law by saying that well

under Article 1 Section 8 Clause 3 Congress has the power to regulate

commerce okay so they started using this in the 1930s after the Great Depression to

regulate um like they’re the famous case was wickard V filburn um one of Roosevelt’s laws said that you

know we’re trying to control prices by limiting production of weed or something like that so they made it illegal for

someone to have a farm and to grow wheat on his own farm and he sued saying this violates my property rights and the

federal government has no authority to to do this and the court upheld the law

in wickard V filburn saying that the Commerce Clause gives power Congress the

power to regulate commerce and by the way this this power was only meant to basically establish a free market a a

free trade Union within the United States for just one reason we the United States became prosperous is because we

had this vast um you know Free Trade union among the states and that’s what the Commerce

Clause was meant to do and Congress could make the trade regular and regulate it make sure like things were being passed fairly between the states

but basically it established a free trade zone um but Congress Congress in the court

seized upon this grant of power to say that well that means Congress can do pass any law that affects Commerce that

any law that regulates any activity of any American company or a citizen that affects Commerce that goes between

between states and if if someone grows wheat on their own Farm then they don’t have to buy wheat

to feed their own animals and if they don’t have to buy wheat some of that wheat would come from producers in other

states which would cross state borders which would be interstate commerce so therefore Congress has the power to

make it illegal for you to grow weed on your own Farm which is obviously ridiculous but the point is

the federal government has stretched that Commerce Clause to become virtually a general authorization of power which

is how they enacted the Lanham act which was the the federal act

giving a federal uh uh form to trademark law in the United States but because it

wasn’t uh as clean or clear as the authorization for copyright and patent

they didn’t preempt or get rid of State trademarks so they both exist now so we

now only have this two-tier system just like we do with SC security regulations we have What’s called the Blue Sky laws

in the United States where every state has their own regulations about Securities and then

the SEC and the federal government regulates them as well so of course you just have to hire lawyers who can do

both and so you pay twice the fees and lawyers get get rich off the results same thing with trademarks so if someone

wants a trademark and they’re in Texas or California or Colorado or wherever they are you know they hire an attorney

and the attorney does a federal trademark registration and a state trademark registration okay so anyway

that’s just that’s just the lay of the land we’re on slide 11 now okay so according to the original common

law in England and in this in the United States states common laws arise just automatically

sort of like copyrights do but copyrights arrives automatically because of the Copyright Act by virtue of

compliance with the burning convention which says that there’s no formalities and they arrive another it’s statutory

but it’s automatic because of the statute common law rights and trademarks arose automatically or automatically by

use just if you start using a work a name in public to identify your good then you have a trademark in it and then

there are certain legal remedies the courts came up with for you to enforce your trademark

nowadays in Most states you could also register like an official registration procedure just like in the old days you

could get married with a with with a procedure or you could have what’s called a common law marriage just if you hold yourself out as a marriage you’re

considered married but most people to be safe they use a statutory marriage form which the government says if you use

this forum that counts just like a power of attorney there’s something called a statutory durable power of attorney whenever the legislature gets involved

and they pass a law saying you can do it the old way which is recognized by custom in the courts and

the common law but here’s an official way that we will bless for sure lawyers and people tend to gravitate

towards that because it’s uh it’s safer because you know that it’s going to to work in the courts because no one can

deny it then and that’s what happens with trademarks so in the United States today if you want to trademark what you

do is you do a trademark search in the federal database usually and if it looks like there’s no one using the same Mark

then you file or register you file a trademark registration in both your local state and federally so you have

sort of two now federally in the United States uh the uh trademark

office is maintained by the USPTO United States patented trademark office which

uh handles the um patent system and the trademark system copyrights are handle

for some reason by the Library of Congress is uh of the Commerce Department

then you can use your filing in a given country like the United States or Brazil or Poland or wherever and then you can

take that and you can file in other countries based upon this treaty call uh the Madrid the Madrid system treaty so

same thing with the burn convention for copyrights or the Paris convention or the patent cooperation treaty for

patents there’s ways to take your local filings and extend it to other countries in the world

okay now when you have a trademark

what this means is that you are so you’re said to be it’s the company that uses the mark to identify their their

brands or their company or their goods and services in Commerce

um they’re said to be the owner or the holder of the trademark and the rights they have is the right to

prevent other companies from using the mark in a way that would be likely to confuse

consumers now think about that um people that usually object to my

criticism of trademark law would say something like well

so you’re in favor of consumers being defrauded so the presumption of that

criticism or that objection is that trademark law is the purpose of

trademark law is to stop Consumer Fraud but it’s not as I just said the

trademark law doesn’t say you can’t defraud consumers trademark law says that you can’t use my Mark if it’s

likely to cons to confuse consumers okay so the first thing is confusion is not a clear I don’t even

know what because confusion means to be honest it’s it’s not fraud because fraud has a clear meaning in the law and by

the way we already have fraud law so for people to say we need trademark to stop Consumer Fraud well why can’t fraud law

do it we already have fraud law and we have contract law so traffic law obviously does something different and

it does so it stops consumer confusion okay and number one you don’t have to

and you don’t have to prove consumer confusion you have to prove likelihood of it

okay so number one we’re not approving fraud and we’re not proving that there is fraud we’re only proving confusion

we’re not proving that there is confusion we’re proving there’s a likelihood of it and the third problem is that the person who files the lawsuit

the plaintiff is the trademark holder it’s not the defrauded or confused consumer

because there might not be a confused consumer like there’s you if you only have to show a likelihood of confusion

well for a given consumer either they’re confused or they’re not so if you can show proof of that they’re confused

even if you consider that to be a lesser standard than fraud okay so the whole thing is com is is not a fraud standard

it’s likelihood of consumer confusion um

and the problem with this is that um

so so let me give an example

okay we just Greg just joined so as an example um

um someone buys a knockoff Rolex watch for twenty dollars from the back of a

van from some guy on the street in New York City they’re on vacation there and they

see hey I want to buy a fake Rolex watch now everybody knows the real Rolex this

cost two thousand ten thousand twenty thousand fifty thousand dollars or they’re crazy

right so no one in the world is buying a Rolex watch for twenty dollars and believing

that it’s a really a Rolex watch they know that they’re getting a fake they know they’re getting a knockoff and they

want the knockoff because they won’t be able to afford a real one so that consumer is not defrauded

and they’re not confused there’s no fraud at all and yet Rolex

would be able to go to court and say that well we have a competitor selling a

wife that says Rolex so clearly there is a likelihood of consumer confusion because consumers are idiots

and uh so we’re going to get a court injunction to stop that and we’re going to seize all these fake Rolexes and

Destroy them with a steamroller and a big demonstration in Times Square and have it on CNN and everyone’s gonna run

scared and we’re gonna stop competition that way that’s all fine and well and good but that’s not

has nothing to do with fraud or even consumer confusion okay so that’s the main problem with

trademark sorry can I ask a question yeah go ahead Matt um so

would you relate that to the idea of standing like maybe in in this case the

company suing another company it’s kind of dubious whether they would have standing in a normal situation but

by trademark law they’re given standing absolutely um and if we’re talking about a fraud

lawsuit the it’s not just standing I mean it’s it’s the person with the actual injury

is the is the defrauded consumer so it would be like if I went to a fake McDonald’s

uh expecting I was going to get a McDonald’s I mean you’re not gonna have a lawsuit

for a five dollar hamburger so let’s imagine I I hired this McDonald’s restaurant down the block to cater my

son’s birthday party okay I gave them five thousand dollars to cater this party and they brought a bunch of

hamburgers and then it turns out that they’re just a fake McDonald’s okay I might have a breach of contract

claim against them or maybe a fraud claim so I would be able to sue them in some kind of court

uh to redress my the damages because they defrauded me and by the way this is why this thing is so

um impractical because these companies would be sued and they would go out of

business they wouldn’t be able to get investors in the first place because they they wouldn’t be able to make it but anyway let’s the point is the

defrauded consumer is the one with the actual injury a third party has nothing to do with it like my neighbor couldn’t

Sue on my behalf because they didn’t like you know they were unhappy that their neighbor got

defrauded but this is what happens in trademark lawsuits the trademark law gives the right to sue to the holder of

the trademark um in fact I have a quote here from um a fairly mainstream article on page slides

12. you know there’s a guy he’s kind of trying to sort out like what’s the nature of trademarks and he

he kind of repeats in legal language what I said earlier like okay people think it’s about the consumer

deception but it’s kind of only Ambiguously related to that because you don’t have to show deception

you only have to show or even fraudulent misrepresentation you only have to show you know likelihood of

Confusion And also um uh it’s the recovery is by the third

party so yeah so the trademark law gives standing as you could call it

to the hold of the trademark which doesn’t which is not being defrauded or

even confused um in fact if they weren’t confused if they if if they were confused they

wouldn’t be able to file the lawsuit the fact that they’re filing the lawsuit knows it shows that they’re not confused they know the difference but

um but um not only is it like wrong to give them standing but it actually

it takes away the rights of the consumer who’s defrauded like is transferring their right to sue you know in in most

private law systems if if I’m harmed by someone’s tort or offense and I have the right to sue

them let’s say I have a potential million dollar claim against someone but I don’t have time to wait

um maybe I’m 95 years old and I don’t have time to wait I might sell that right to another company who would

collect for me on their behalf maybe I’ll sell it for 67 cents on the dollar like

they’ll give me six hundred thousand dollars and then they take the right to sue and they you

know they take the risk then that they’re going to either get a million or nothing but the point is I would have

this this economic right this right to sue and I can use it I can get rid of it I

can compromise with it I can take it to court I can sell it to someone else but trademark law basically takes that right

away from the defrauded consumer and it gives it to another company so to taking a property from the from

the actual victimized person now a lot of Defenders of trademarks say that well

that’s the most efficient way to do it like the most efficient way it’s like a class action idea the most efficient way

to have trademark rights enforced is to take it away from the consumers who are actually victimized and give it to the

one company who has the financial incentive to pursue it well I don’t know you could I you could give the give the

financial incentive to me give everything to kinsella I’ll file lots of lawsuits I’ll make a billion dollars like the whole thing is is is totally

unjust and ridiculous anyway does that answer your question yes thank you okay

uh a 12 13 I’ve already gone through this all right so that’s trademarks

any any remaining questions about trademarks otherwise I’ll turn to trade secret yeah real quick

um you explained that um with the Rolex example

that the company would be able to seize those you know knockoffs would the company be able to seize those

from people who bought them as well

um I’m not 100 sure but I think technically they could but as a practical matter they go after the big

targets right so um um they go after the the non-sympathetic

victims like you know the Shady the Shady knockoff companies

they’re not going to go after you know there might be a thousand people in the country or ten thousand people walking around with a fake Rolex

um I think theoretically they could like you know you could file 10 000 lawsuits against you know some guy walking around

Las Vegas with a fake Rolex watch trying to pick up hot chicks I guess

I just I think that they they focus on the big fish

and you’re saying that a imagine a person tried to make a claim

that they bought this Rolex you know maybe they didn’t buy it out of the back of a truck maybe they went to a jewelry

shop set up somewhere and then maybe they later claim oh I found out this wasn’t real

I mean I guess that would be a normal fraud case against the knockoff company and not a trademark violation actually I

mean my view is um you would have a contract claim or maybe a fraud claim based upon the com

the person you bought it from so if the pawn shop misrepresents it it says this is a real

Rolex and you buy it from them then you have a claim against them either a contract claim if it was sort of an

honest mistake or a fraud claim if they were like trying to deceive you um but you couldn’t sue the original

company because there’s no privity of contract with with the with the manufacturer like there’s nothing inherently wrong with making a fake

Rolex um just like there’s nothing wrong with you know a woman

wearing makeup or a guy putting on you know combing his hair nicely or or

someone or someone wearing a push-up bra you know there’s no General right to be free from

exaggeration and puffery and even dishonesty like the point is lying is

not a crime being deceptive is not a crime it has to be an act of Fraud and an act of fraud

means you use a deceptive communication as a way to obtain possession of someone

else’s own resource without their genuine or informed consent that’s really what fraud is

but mere dishonesty or puffing or lying it’s just it’s part of life you know

um mm-hmm okay let’s go to trade secrets now now trade

secret is a weird type of law it does have roots in the common law like trademark does

um at first glance you might have someone saying kinsella how can you Libertarians

oppose Trade Secrets what’s wrong with Keeping a Secret I agree but do you need a law that says

you have a right to keep something secret no all you need is a reasonable

legal system which gives everyone property rights in the autonomy of their

bodies like in other words if if if I’m free from compulsion or aggression

then I can keep whatever Secrets I want you know it’s just like if I own a computer or if I own a home then I don’t

need a separate right saying I have a right to keep a piece of paper with words on it in my home

that like that’s covered already by the fact that I own the home like like once I own once I have secure

ownership of a home and privacy within that home I can do whatever I want within it I can

I can I can walk around naked I can have a tanning salon you know I can I can I

can do meditation I don’t need special rights for all these things I can do with the thing that I own which is my

body and my resources right and by the same token um if I

have property rights in my body which means I’m free from compulsion no one can put a gun to my head and say

kinsella tell us the secret you know tell us your theory of gravity or whatever my you

know or or tell us the plot of the novel you’ve been thinking of in the back of your head for 10 years then I can keep

anything I want secret it’s not a property right it’s just a practical consequence of the fact that I have the

ability to control what I do with my own body and my own property um so a trade sacred just means that you

have a company either an individual or Merchant or you know a larger company

which has certain things that it does which are not generally well known widely known they’re Preparatory to the

country you know Coca-Cola might have a certain formula for its beverage

um some Chemical Company might have a certain proprietary process of mixing these

chemicals to make gasoline and this technique or process

may not be patentable because it may be old uh but it’s but but knowing it is useful

and keeping it secret is useful because it gives them a competitive advantage over someone else so that’s what a trade

secret is a trade secret is information that you have

that is not public widely known publicly and that knowing it and having it be

secret gives you a competitive advantage over other people there’s lots of things like that this is what life is like for

private people and for companies right so that’s what the trade secret is now by the way in in the United States trade

secrets are governed Again by state law and Most states have adopted this the

definition given by this uniform trade secret act proposal

um I think 48 states plus DC and other things so so it’s most of the country it’s not federal there is a federal uh

law which makes it criminal to try to get people’s trade secrets so there could be criminal penalties but anyway

if you look at the definition here so it’s this information right which gives you an advantage which

it’s a trade secret if the owner takes reasonable measures to keep it secret

and then you derive value from it not being known to people in other words you you get some Advantage now what’s

interesting is that it’s something you take reasonable measures to keep secret it doesn’t say the secret so that’s why

for example if uh if if apple is making iPhone number

17 right and it’s got some new feature and only Apple knows what that’s going

to be or only Apple knows how to make it or they know the internal schematics or something or the composition something

like that that information is valuable to them because they can use it to make the iPhone 17. it’s it’s has something

to do with making the product be what it is and be valuable and keeping it secret is an advantage because it makes it

harder for other people other companies to duplicate that feature right away or

ever in their competing you know Android phones or whatever right so that’s a trade secret but

and and if some employee or there’s some mistake and the secret slips out like

let’s say the Coca-Cola secret formula or the KFC Lobster herbs and spices will leak tomorrow at a certain point they’re

no longer a secret they’re publicly known so if something is publicly known it cannot be a trade secret because it’s

not a secret but as long as it’s still relatively secret and like only the original company knows it and maybe a

few other people know it on the outside then as long as you’ve made a reasonable

effort to keep it secret then you can go to a court and say I have this trade

secret in this information here’s my proof that I I’m the owner of the trade secret and that it’s a secret still

because it’s not widely known yet but I we did have a company that’s guessed it or that we had an employee that left and

he went to a competitor and he’s told this competitor how to make this iPhone feature but they haven’t leaked it

publicly yet they can get a court order an injunction to the third party

not to use the information that’s the that’s the essential libertarian problem three secret law

it’s not that you can keep things secret anyone’s entitled to keep things secret but trade secret law says if you try to

keep something secret and if you fail and if it starts to be leaked then you can go to court and get an order to keep

it from being leaked further even if that order is is against third parties

right so I would have little problem if the order was against an employee who had left you and the employee was

violating his his contract with you which where he said he would keep a secret but once he banks the information

public to a third party that third party is in no primitive contract with you so

that’s ultimately the problem with trade secret law um and I’ve got some examples here on slide

um 15 uh but the federal aspect is called the economic Espionage Act of 1996 which

means that if you steal Trade Secrets it’s it’s actually a criminal offense there could be federal prison time

um um yeah there’s some examples where

um uh like the FBI or or some law enforcement

has like raided people’s like I think some guy lost some Apple employee left an iPhone 4 on a bar stool sometime one

time and some guy picked it up and found it took it back to his apartment and took pictures of it put it online and

then Apple sent the police to his apartment uh to take it from him which I think

they have the right to take the phone back because they own the phone but they don’t have the right to tell them not to use information that he

gleaned from looking at the phone that they left that their employee left in public which is what trade secret law

would allow uh all right we’ll go into other things next but any any questions about Trade

Secrets before we move on

all right since that’s the the fourth type of IP

law and probably the the most boring of those four and we have no questions and then the remaining are even more boring

like boat hole designs subjective mask Works um I’ll just skip over those unless

anyone has any questions but just keep in mind these are all special types of laws and other countries have variations

of this I’m not aware of any International treaties beyond the first three uh patent

copyright and trademark I’m not aware of any International treaties requiring countries to have equivalents

of trade secret boat hole designs mask work database rights moral rights things

like that although some of the Gat and wipeo things may have Provisions about that and some of the American uh

bilateral investment treaties may have requirements requiring their Partners to have something like this I’m not sure

it’s not the point most countries have all this anyway so that’s the problem

quick question now go ahead um do you think uh Stolen Valor would would fall under intellectual property

um that’s a good question um I think you you I I uh to the extent

that there are laws about it which I think there are some laws that have something to do with that I think you could probably characterize it as a type

of IP um but again to the extent that you use

Stolen Valor and by the way I think this means like pretending you are like you know a

warrior or a veteran or something like that and getting special favors or treatment or status because of that

again to the extent that you’re doing something legally wrong it’s because it’s fraud right and if it’s fraud then

that should be covered by fraud law um but yeah I think that that would not be a bad look if you stretch these if you

stress my concept if you stress the idea of Ip broadly enough almost every bad at

state law could be viewed as a type of IP so for example

um I characterize patented trademark law as negative servitudes or negative

easements because it gives the holder of the of the IP right

a negative veto right over how other people use their resource their property so like a a patent can Apple’s patent

lets them tell Samsung or Motorola you can’t make a phone with your factory and your

materials shaped like this right or a copyright lets the copyright holder tell

another publisher you can’t use your book and your ink to make a book with this shape with this arrangement of

words on it so that’s a negative servitude I mean if you stress that concept far enough you could say that

like you know um all the bad laws like uh uh

the drug war or or or or conscription like so those laws say that

if you use your body in a way that we don’t like drug losses if you use a body

in a way we don’t approve of we’re going to put you in jail I mean you could call that a negative servitude over someone’s

body but at a certain point we already have class we already have categories for this it’s called slavery or you know

something like that or aggression so I think we should reserve the IP categories to this unique area of

different types of legal systems but yeah there is some Affinity with um Stolen Valor and with the NSA steel

stuff and with the religious symbol protection Etc

okay so basically I think I’ve explained to this point in the first two talks and

this one the main types of so-called recognized

intellectual property patents for interventions copyright for Creative Works trademarks for sources of

identification for goods and services trade secrets for proprietary information companies try to keep secret

but might fail to and then the special types like semiconductor mask works for integrated

circuits and um boat hole designs and databases and moral rights and things like that

um now there’s one final thing I’d like to talk about and that’s defamation law so defamation law is another type of law

that arose on the on the common law in England and other countries um

and defamation is a broad category the subtypes are liable and slander you’ve probably heard libel because libel is

the most common libel is the written or permanent form of of defamation and

which nowadays is most most defamation is is liable slander would be like an or

like you just tell someone something verbally or orally like um you you slam you you slander someone’s

reputation by saying something about them um those are usually harder to prove and

it’s not permanent because it’s sort of ephemeral it’s only in the memory of the person who hears it so usually most defamation suits or

libel suits um and so it’s like you know the New York Times published this article

which which uh said something false about my my character

um and the reason it has to be false is because truth is a defense because if it’s true

it’s not defamation so even though some true some statements

about someone’s character may damage them

if they’re true you’re said to be have a privilege to say the truth so you know I

might not like it if if you reveal to the world some some unsavory fact about my private life

but if it’s true then I’ve got to take the consequences um if I sue you for defamation or libel

then you could defend by saying yeah but it’s true that’s why you have these lawsuits where the defendant usually

says okay but my defense is that what I said was actually true right now there are other exceptions to

defamation liability in addition to truth um so there are certain privileged

things like statements before Congress or parliaments or in court you know if a

witness on the stand says something or if um uh if if a congressman makes a speech

and says something they usually can’t be attacked do they have they have to be free to say what they what they believe

or if it’s mere opinion or if it’s satire you know if I say that I think you’re a jerk that’s not really a

statement of fact it’s just my opinion about you I don’t I’m basically saying I don’t like you and I have the right to

not like you and I have the right to say that I don’t like you now if I say that you’re a child Raper of child rapist or

if I say you’re pedophile and you’re not then that would be potentially defamatory right and by the way the

burden of proof and and the standard of proof are different in different countries in the US is one of the best

and from our point of view because in other words it’s hardest to prove defamation here because of our strong

First Amendment protections but like in England uh UK it’s it’s easier which is

why sometimes lawsuits are filed there like the one about the Holocaust with the Rachel Weiss movie I forgot the name

of it anyway um some recent big cases in the U.S

I mean Alex Jones just lost a big case about the Sandy Hook school shootings

where he said it was a false flag or something and he um I think the plaintiffs won like a

billion a billion dollar judgment against him um Fox News had a an over a billion

dollar claim against I’m sorry Dominion voting systems the voting

machine companies um and filed a defamation suit against Fox News for saying that their machines

didn’t um you know were were used to perpetuate some kind of um

rigged election in the in the Trump Biden election um and um Fox settled for 800 plus

million dollars and was potentially on the hook for more and I think there’s more lawsuits more defamation lawsuits coming from another

company so we’re talking about billions of dollars of awards from these um defamation suits uh the recent Johnny

Depp versus Amber Heard suit um I think Johnny Depp was awarded over 10

million dollars from Amber Heard for defamation so defamation is a real thing

um now when you when you read the the textbooks and you talk about intellectual property

it usually covers patents and copyrights and trademarks and trade secrets and the

other special rights I mentioned before it’s rarely mentioned that defamation

should be considered in the same league but I don’t see why they shouldn’t because as I mentioned earlier about trademark

for trademark you don’t have to prove actual fraud you don’t even have to prove actual

consumer confusion you only have to prove likelihood of consumer confusion and with the um

with this other right which I didn’t mention yet um trademark law in the U.S and

probably in many other countries has been amended to include what’s called an anti-dilution right which means

the trademark holder can sue someone for tarnishing the value of their of their

Mark even if there’s no likelihood of consumer confusion so you see all these things show that when it comes down to

it trademark is really not about consumer deception or consumer confusion

or Consumer Fraud it’s really a reputation right and this is like again this I’m quoting uh Dale Nance who’s a

fairly mainstream law professor he said trademark flights are closely but

Ambiguously related to preventing deception of the consumer but it’s ambiguous because you don’t have to show

deception or damages by the consumers um

and then in the I’m going to conclude he says in practice trademarks or as much of

protection of the holder’s Goodwill as a protection of consumers from deception in other words trademark

rights protect for the trademark owner or holder the

value of their reputation which is what Goodwill means right in economic or a business setting Goodwill means this

sort of a intangible value you have from your reputation from your brand name

and here I have the objectivist by the way is sort of a subset or a weird cousin of Libertarians

um who are big Defenders of intellectual property and defamation law

right because it all goes along with their sort of Quasi lock-in marxian notion of Labor like you

have the right to a property right in in things that you create that quote have value or or

values as a noun that you create right this is their their whole theory of rights which I think is confused and

kind of quasi-marxian uh so here’s one objectivist uh an irand

forum a name Steve Simpson he says libel laws are proper in my view it’s a complicated

topic but the way I think about it is you have a right to the value that you’ve created in your own reputation or

in your brand right it took them years to make their reputation so you so the

ultimate issue is if you that if someone damages a value someone’s created

like your reputation it’s almost an intellectual property right yeah he’s

right like he’s actually correct the the so in my view defamation law should be

viewed as a type of intellectual property right because it’s very similar to trademark in fact trademark and

defamation should be merged together they’re both just a way that the law recognizes a right in your reputation

which is an intangible thing um protected by a type of IP law either defamation or trademark law

um let’s see oh that’s the end of my slides so and one more thing I’ll point out

um um Murray rothbard was skeptical of

of patent law and he also had a great article

debunking defamation law in his article his chapter knowledge true and false in

ethics of Liberty so rothbard understood exactly the problem with defamation law uh that you don’t own a reputation

because the reputation is just what other people think of you and you don’t own other people’s brains

or minds or bodies so you you don’t really have a right in what people think about you so that’s the problem with

defamation law now if he had understood that defamation and trademarkal are basically the same thing he would have

opposed trademark law too right which is one of the three main types of Ip he also opposed patent law

which is the number one type of IP copyright he said you could have

copyright by contract now I think he was wrong and confused on that but my view is that if he had just

said you know before he died in 95 before the big debate on IP really happened in libertarian circles starting

in around 1995 right when the internet was happening right right died right

when the internet happened is when the big debate on IP started happening with Wendy McElroy and then Tom Palmer Sam

konkin and then after that Roderick long and me and other people really started focusing on this issue

and sorting it out um I I’m simply saying rothbard made a

slight misstep by thinking that a type of IP could be justified

he called it a common law copyright which is not a good name because that name was already taken by some other

doctrine of common law which he didn’t under he wasn’t aware of a thing but the point is he made a slight misstep he was

good on patents he was good on defamation law I think he would have easily been good

on trademark law if he’d seen the connection and I think he would have abandoned this common log copyright idea

uh if he had time to reconsider the sort of new work on all this stuff uh that’s

one reason I want people to understand that defamation is a type of IP because Rock Bar was so good on defamation law

that he should have been he should have extended the reasoning there to all types of Ip and I think he would have if

he had just lived you know a little longer anyway I’m done with my prepared

talks but I’d be happy to take any any questions

and yes I have one question about this 3D printers case because they are

probably going to change a future of the copyright in in the near like 10 or 20

years how do you think they are going to affect copyright or the are they going

to strengthened or diminish mostly because of its of the probability Federation

well so um I’ve talked before about how I think that um

copyright so I think 3D printers have more to do with patent than copyright so copyright has to do with uh with copying

or reusing patterns of information and the the the the Advent of the

internet and encryption and digital digitization of files and all torrenting

and all this has basically made copyright piracy impossible to stop

so yeah you can use the law of copyright to go after big companies so they can

maintain some control over it but they can’t stop piracy it’s impossible so

digital information has basically made the the unreality and and the

unnatural aspects of copyright more apparent and it’s made copyright very very difficult to enforce which is a

good thing so in other words copyright law is not going away but it’s it’s easy to it’s it’s quite easy to evade it

right now which is a good thing um I wish it were so easy to evade income

tax um now patent law I think something similar could happen if if a

3D printing matures and the more that it matures the more that you will be able to evade

patent law so yeah you could easily just get an encrypted file and send it to the 3D printer in your

basement or down you know some Community groups 3D printer download street and make a device without anyone’s

permission or knowledge so I think that will you know I do think it may take several decades before it matures

but eventually 3D printing should help us to um evade um

patent law now I will say that you know one problem with patent law and

copyright law is that you know the interests that are behind them and the governments will use these laws to

distort and impede and hamper the development of these Technologies as long as possible so I don’t know if it

takes 15 20 30 years to have 3D printing it maybe it would it would have only

taken half that time if not for government um

impediments to it but I think it’s coming no matter what they can’t they could slow it down but they can’t stop

it so I do have hope for 3D printing um hopefully maybe maybe in your lifetime

I see thank you

uh if we have any other questions about anything related to IPM open to them now since we have a little time

um anything I didn’t cover or that I did or anything at all related to IP or IP

policy I’ve got a question yeah uh one of my friends is

um he’s libertarian I would say he’s pretty solid on his understanding of all these things and

uh sees all the state interventions uh when he and he he writes books and when

he puts them out he puts it with a copyright and you know I’m sure he would favor a

voluntary system uh over an involuntary one but what he says is um he thinks that in

the absence of the state there would be an elaborate system of trade secrets

that would somehow be analogous to copyright in some way so he doesn’t have the

hugest problem with just putting a copyright in his work right uh what do you think of that

well so first of all um he’s probably under a few minutes apprehensions about the system

um um like I think there’s nothing there’s nothing wrong with putting a copyright

notice on your Works in fact I think it’s a good thing because um

if you have a work out there in public let’s say you wanted to be shared or used the person that wants to

copy it or put it in their new book or whatever they need to know who to contact for permission because we have a

copyright system so if you put a copyright notice it only helps them to be to re to be reassured like they need

they they know they know who they need to contact to get permission if you find a work where the it’s it’s not clear who

owns the copyright whether it’s the publisher or some author that’s dead or their heirs or who their heirs are then you

you don’t you can’t even get permission because you don’t know who to contact or who to trust so there’s nothing wrong

with putting a notice um now I I know what he said what he’s saying is he’s imagining

sort of what what rothbard and some of these other guys talked about

um well what they say is that well copyright is not a problem because okay

maybe the government doing it and the way they’re doing it is not the best way to do it but it’s just a rough

approximation of what would happen on a free market from a contract-based system

anyway you know they’re they’re wrong about that well first of all if they’re right

they’re right let’s try it and see let’s get rid of copyright let’s get rid of copyright and see what would happen but

I can tell you that every defender of copyright would who understands the the nature of it would oppose that proposal

like they don’t think that a contract system could replace the copyright

system that we have that’s why they want there to be a copyright act because they know that it

does things that you can’t do by contract so these these people that say oh well it’s just like a it’s just like

a a legislative version of what you would have by by contract anyway well

then why don’t the interest behind it want to just go back to contract law and see what happens because they they sort

of know right and the reason they they know is that there is a difference in the law between

what we call real rights or in-rem rights in Latin or Roman law

which is a right to a real thing and in personum rights or contract rights let’s

let’s write personal rights between people um so you and I can have a contract where I

agree you know if you give me your proprietary information I agree to keep it secret

like I’m gonna be your partner you’re gonna cut me in and you’re going to let me have my own little Factory like maybe

I’m a uh what do you call them people have a chain of restaurants say a a French a

franchisor or whatever um but I have to keep it secret right so I have a special duty to keep the

knowledge secret because I agreed to it mm-hmm like there’s privity of contract

but that that doesn’t affect the world in general now if if you own your car

that’s an in-room right a real right I’m not entitled to steal that car even

if I don’t have a contract with you because it’s a good it’s good against the world so real rights we call it real

real doesn’t mean not real it means like uh affecting arrest or a thing a

physical tangible thing so property rights are good against the world you

don’t need other people’s agreement for them to be good and what happens is you can have private

law between two or more parties because of contract and that affects only them and then everyone else on the outside is

not bound by that because they’re not in what’s called privity of contract okay uh I’m gonna

get to a more detailed answer in just a second but um the point is there’s a difference between contractual rights between a

group of people and in rem rights good against the world patented copyrights turn

they establish in-rem rights good against the world but the the thing is like I said the right way to

characterize them as they’re they are um they’re really negative easements but

negative these ones are also contractual in Persona rights which are fine as long as they’re agreed to by the parties but

the law the government just says no you have this right even though the guy burdened by the right

didn’t agree to it so they converted what should be a personal Riot or a contract right into a into a real right

and that’s the problem with it right that’s the problem with it now what he’s imagining is something like

this um okay kinsella gets his way there’s no copyright in the world but John Grisham

or who’s you know some popular uh uh JK Rowling writes Harry Potter number eight

and she goes to Amazon and she says hey here’s my book

I’m gonna give it to you but only if you sign an agreement with me agreeing to keep it private and also not private but

but only to publish it to customers who sign an agreement with

you and with me that they will not copy it either so the idea is that you could

you’re they’re imagining this world wide web of cartelized type agreements where

you can’t escape from it like everyone’s everyone’s enmeshed in this terms of

service kind of in the world where it’s effectively the same as a copywriter or patent system

um so if I go buy a book if I go buy Harry Potter number eight from Amazon for ten dollars

Amazon can only give it to me if I sign a contract saying oh I agreed up to JK

Rowling’s private copyright regime something like that right and so in this way everyone is covered

by it but the problem is that’s not true because if once I have but it’s because of the nature of information that could

be true for physical things which have an an identifiable owner but information doesn’t have an owner so if I copy if I

buy the Harry Potter book number eight and I agree to keep it private and not

to copy it okay then I have a contract with Amazon or with Harry with with JK Rowling not

to copy it and if I copy it then I may be in breach of contract and

I can be sued for a lot of money but okay so what what if I do it anyway

if I if I if I digitize the book and I scan it and I put it on on the internet and so a billion people tomorrow can

access the the ASCII text file of Harry Potter number eight then none of those

people have signed a contract with Harry Potter or with Amazon so

the the right that JK Rowling or Amazon would have against me doesn’t do them any good they can I mean

and plus I don’t have millions of dollars they can get from anywhere I’m just some guy on the internet who bought

a book for ten dollars which again is another problem with this idea if if if my choice is I want the the

latest Harry Potter book and my choice is to buy it for ten dollars from Amazon

and to sign a contract obligating me to pay millions of dollars if I use it or

learn from it or I’m influenced by it in the wrong way that’s like that’s a cost

so I’m paying ten dollars plus I’m obligating myself to a potential

lifetime of bankruptcy so I would go get the pirated copy and I

would not sign in the contract so the thing is that these contract walls can never work very well because the only

people that would sign it would be your loyal fans and either you asking them to sign a minor a contract saying okay if I

copy it I owe you a hundred dollars or ten dollars but not a million but if

it’s only a hundred dollars or ten dollars then someone’s gonna just pay the fine and do it and then the information is free so these these

contractual schemes can never work with information that’s what these people don’t understand they don’t understand that

there’s something about the nature of knowledge once it’s public it’s public you cannot put the genie back in the

bottle you know if I have a new mousetrap design like an invention if I want to sell it like I might be

able to make or a new plow let’s say an improved design for a plow for my form I

can make this plow and give it to two or three of my close relatives and maybe we can plow our Farms more efficiently okay

that’s fine but if I want to I can keep a secret that way if I want to but if I want to like profit from the plow design

I’ve got to sell the plow but when I sell this plow everyone sees oh kinsella’s new plow has a great new

feature and so very soon I’ll have imitators that’s the price I have to pay for

selling it so once the information is out there it’s out there there’s no way to keep the genie in the bottle so

um I think that the people that think that you can duplicate um anything like an in-rem system or a real

right system of protection of information which is what patenting copyright do with a contractual system

or just wrong uh but again I’d be willing to uh I’d be willing to get rid

of patent and copyright and and let people just use private contracts but again every every advocate of patent and

copyright would oppose with her the idea of getting rid of the patent and copyright system and replacing it with

contract because they they understand like I do that you can’t simulate

um these systems you know it would be like saying you could simulate the tax system or

um or or the America’s Disabilities Act with with private contract it just doesn’t make any sense or the drug war

how could you stimulate the drug war with a private contract system doesn’t make any sense

well um I mean he’s not here to talk for himself but if I could I mean I’ve just thought

about this issue and whether it would really happen that way and what I’ve imagined is you know maybe

let’s imagine that there’s no copyright law or no state and you know let’s let’s take the modern

examples of like movies and streaming services yeah and let’s say that Netflix makes a movie

and uh you know they want it to only be shown on Netflix so that people have to

subscribe to be able to watch the movie um so they won’t at least guarantee

against like Amazon and Hulu hosting that

um so you know these major streaming platforms might sign an agreement among themselves to not uh

use each other’s content uh and honor that and they can’t really

stop anyone from just downloading it and pirating it but maybe they would satisfy themselves

that you know all other major Services um

which is all they can do right now right because right now they can only stop the major Services because there’s always there’s always right piracy going on in

the background right and that’s my observation is that they’ve kind of given up really trying to stop people like

individuals from torrenting movies and just watching them themselves

um so like the enforcement wouldn’t really be against individual people it would be

against some company that started to I I could imagine other people’s stuff in

well let me point out one thing so so

the government laws have blocked various things companies

could try to do um so you’re talking about a cartel basically right which as a Libertarian

we have put we oppose antitrust law so we have no problem with cartels but the government has done their best so the

government is schizophrenic so the government grants monopolies in the in the in the form of FDA protection for

new Pharmaceuticals and in the form of patents of copyright and then they have an

antitrust or an anti-competition or anti-monopoly law which says it’s illegal to have Monopoly so the

government is completely incoherent and schizophrenic but so for example back in the um

I can’t remember the time frame back in the 50s or 60s whenever it was um there were these sort of

quasi-aligopolistic cartels or conglomerates these these agreements between the uh the movie theaters

and the government broke them up under the um I think the Clayton any trust act or the

ceremony one of the so you know this so like everything you would want to do like so your proposal is is not

unreasonable like you could have major book publishing associations

or are movie companies or the music industry groups or whatever you could have them try to come together

to somehow you know uh uh put some limits on leaks

of the major you know things maybe that could work but the government would have

to allow you to try but they wouldn’t even allow companies to try right now so the government would basically Outlaw

attempts to do a private solution and then claim that well because

people can’t make copyright work privately we have to give it to you legislatively like yeah well the reason

it can’t work privately is because you’re not you won’t it’s because you allow you outlaw cartels and and you

have your antitrust law so we should get rid of the antitrust law the FDA and copyright and let’s see what would

happen um I don’t think we would see something like I I still can’t imagine a system

like so let’s say we have the system like your friend is imagining or you’re imagining it’s six or seven or ten big

companies all come together they kind of roughly respect it sort of like OPEC does now with with the you know there’s

some cheating but they roughly respect the the oil limitations and all this um you know there’s really in the end

there’s nothing to to stop some Chinese or Indian upstart company from saying we don’t care we’re gonna we’re gonna

scrape everything and we’re gonna do a nice curated thing you pay us two bucks a month and we’re gonna give you

everything you want anyway maybe it won’t have all the features you know it won’t be as nice but some people would

use that but like they use torrenting right now I mean most people don’t use torrenting I think but or I don’t say

most people there’s probably lots of people who do but people who can afford a 10 a month or whatever it is for

Netflix they just do that because it’s easier they get all the extra features they get the subtitles they don’t have

to worry about the uh corruption but if the price gets too high they might go to

torrenting so maybe they’d have these intermediate services so I I don’t know I don’t think would be like the same as

we have now is the point it may there may be ways that you can

come together to have agreements that would do some some of the things that

copyright does now and and we Libertarians don’t oppose that as long as it’s done voluntarily

and by contract okay

all right well unless there’s anything else I think we’ll stop it today um this may be the end of my little

three-part series unless anyone can think of and you can email me later or send me comments when I post this uh if

there’s anything else I could cover as a practical thing be happy to do it um you know there’s other practical

things I do as a lawyer like licensing and contracts and that kind of stuff but I think that’s enough practical stuff

for now the rest of my material is all on the normative and policy and law

stuff but uh anyway glad you went turned in I hope everybody enjoyed it if you

have any questions feel free to let me know thanks everybody great thank you thanks thank you

foreign