Stephan Kinsella
Thanks Joseph. I am very happy to be here. I am a patent attorney. I am also a libertarian and an adherent to the Austrian school of economics. Good. So some people understand …. excuse me?– Well, the Austrian school of economics is a radical free market school that is not positivist in methodology like the Coaseans or Milton Friedman type school. I am bringing that up because there is a methodology of science that is applicable to even the natural sciences and the topic of today. So.
Some of you may have heard of the land of Cockaigne–not cocaine–the land of milk and honey. The poets in the middle ages came up with a mythical land where everyone has everything satisfied and there is no scarcity. We do not live in this world. There is scarcity – you can’t just have what you wish for. There is no magic.
This gives rise to two key features. There is scarcity and causality. Only one person can use a resource at a time, they are rivalrous—as economists call it. In order to achieve results in this world, we have to use these scarce things in the world as means of action. And the choices that we make have to conform with causal laws. You decide on an action, and you choose a scarce resource, and you choose a casually efficacious means to achieve your end. This gives rise to the observation that there are two twin powers of human power and prosperity. Knowledge and property.
In a systematic way, knowledge is science. Science is the systematic categorization and acquisition of knowledge. Knowledge and property go hand in hand. They are twin pillars of human propserity. We have to have property rules to permit the peaceful and productive use of scarce resources in this world. Otherwise people would be fighting over them all the time. This is why we have property rules that assign an owner to every possible scarce resource.
And science is necessary to provide information about causal laws so that individual human actors know how to employ laws to achieve ends. This is a by the way the study of praxeology, the main idea of the primary Austrian economist, Ludwig von Mises. The logic of action, the study of human action. Employing means to achieve ends, and the means are scarce.
So in a free and civilized society, property rights are respected and individuals are free to learn from the body of knowledge and are free to add to it. This is the libertarian view of a free society where property rights permit resources to be used productively without conflict. And science informs men how to use these resources, and this knowledge expands our ability to achieve ends and expands our ability to see what ends are even possible.
Now, science and learning in general – the acquisition of knowledge – has many forms. Common experience, just living, observation, cultural immersion, informal teaching by parents, imitation, formal education, employment working at a job you learn things, and the scientific method and empirical testing. But learning is also part of a free and competitive market. Entrepreneurs invest in research and development and bring desired products to market. Consumers and competitors learn from these products, they learn what’s possible, they learn how they are made. And competitors emulate and improve maybe on the products.
The problem is that patents and copyright short-circuit this process. I said I was a patent attorney. I know that this makes me less appreciated, but I hate patents the most out of all of you. They are just grants by the state for a monopoly privilege designed to protect companies from competition. The holder can use the state force against an innocent or peaceful competitor from using the information to compete. They are based on the confused notion that it is wrong to use information or to learn in some context. It’s trying to assign property rights on information, patterns and designs. But the purpose of property is conflict over scarce resources. But ideas and knowledge can be used over and over and over, and they are not scarce.
So when the law tries to impose this on ideas, it’s trying to make ideas scarce when it’s not scarce. We need the concept of property, but the free market is trying to create abundance despite this. So the purpose of the market is to overcome the scarcity. More knowledge is good. The more knowledge we have, the better we are. This accumulation is essential to progress. We shouldn’t treat it as scarce.
This is the fundamental problem with intellectual property like copyright and patent law. The fact is, it’s literally impossible to have property rights in knowledge. So what the law ends up doing is that it, goes under the guise of protecting property rights and knowledge, it gives property rights to things that are scarce. Copyright gives you a right to take some of my money if I do something. It does not permit me to use my printing press as I see fit, it’s just to extract money from someone in the form of damages or use state force in the form of an injunction under penalty of being contempt in court and fines and jail.
Someone who has a patent on a mouse trap, even if he gets it later, can stop me from selling my mouse trap idea or mouse traps. Patent and copyright undermine and undercut science. Patents distort R&D by steering it away from heavily patented areas. It pushes research and development towards more practical gizmos because abstract ideas are not as easily patentable. For instance, physics equations are not, but a musical condom is. Patents even prevent the use of knowledge even if you independently invent an idea.
It also stigmatizes the idea of emulation and copying- or in the real world we call this learning- adn this is why we have words like stealing and privacy applying to learning, competing, and education. These are a type of evocation. Stealing means I take something from you, and you no longer have it. That’s bad, that’s why we impose it. Piracy- real pirates would attack people and kill them and sink their boats. But the terms used now for merely copying information and competing..?
Copyright is bad too. It locks up written works. Tons of works are being lost because it prohibits the dissemination of ideas. It creates a culture of a publishing model where important works, journals and books are `limited`. You have to go through this model because you have no choice instead of cutting out the middle man.
The title of my talk was IP and the new mercantilism. It had its peak in the late 1500s. Mercantilism was the policy of the crown protecting local industries by by granting them monopolies, sometimes called patents. Back in the 1500s at the height of mercantilism, like in England, many goods were covered by patents like playing cards, leather, iron, soap, coal, books and wine and so on. Not because the holder of the monopoly invented it, but because the crown was granting favors for someone, sometimes in exchange for agreeing to collect taxes for the state. It caused the monopolists, the private companies, to turn to the government to perform search and seizures and investigate competitors who were going outside the monopoly. They would bust into a competitor’s shop and see if the playing cards had the king’s stamp on the back.
In France, in 1666, the button-makers guild demanded the right cloth to search homes and arrest people on the street wearing cloth buttons made by the tailors. France even literally tortured and executed people for pirating fabric designs—broke them on the wheel. Some merchants even collected taxes in exchange for the monopoly, like the wool exporters. Now does this sound familiar? Today, we have the RIAA and the MPAA asking for warrantless searches to stop DVD piracy or CD counterfeiting; private companies are helping Immigrations and Custom Enforcement, or ICE, seize accused domain names without due process. ISPs like Comcast, Verizon, Time Warner and others are cooperating with the government to help stop copyright infringement. The Obama Administration’s “IP czar” —of course, “czar” means Caesar — and others have been secretly cooperating with Hollywood and the recording industry to disrupt internet access to people suspected of violating copyright law.
And the tax issues.. we have the software, music, and pharmaceutical industries accruing monopoly profits and the forms of royalties and shakedowns of people using trademark, patent and copyright law. By decreased competition they gain this monopoly and more money. So then this turns into campaign contributions or taxes. So Microsoft uses its money to acquire more patents and then uses that money to sue other companies and then to shake them down for royalty payments. It’s called royalties for a reason! It’s no surprise that Stodden mentioned that the law wwas fought back by copyright lobbyists.
As the state, basically- it’s nothing but mercantalism but so called property rights are used as a cover. Patent and copyright were not called property until recently. People resisted these monopolies because they knew there was something wrong. This is why they are only allowed for a limited time, so that the state could encourage innovation – but there’s proof that this actually hampers innovation. The advocates started to cover this property rights.. and hey who is going to be against property?
Someone the other day on some podcast said that children are like Hitler. If you bring up these terms in an argument, then nobody can argue against it. Who’s against protecting property? Or the no child left behind act. They put these nice terms on these laws to make it hard to oppose them. A lot of the opponents of intellectual property are proponents of property.. pro-free-market, pro property position is where we’re coming from.
The patent system isn’t broken. It’s doing what it’s intended to be doing. Patent reform? The latest was not significant at all. The problem is not software patents. The problem is not corporate patents. It’s not that the patent term is too long. We have to recognize that patent and copyright are completely antithetical to property right purposes and science. It impedes science and property.
Intellectual property prevents owners from using property as they see fit. And it intentionally stops learning. Don’t reform patent law: end it. If you want more information about this, I was going to post to c4sif.org.. there’s more information there, more systematic information elaborating on the ideas that I talked about today. I founded the Libertarian Papers journal. It’s completely free and open to the public and has no copyright restrictions whatsoever.
Thank you for your time.
I’ll be appearing tomorrow on Agora I/O? The Liberty Unconference, at 2pm EDT, at the channel “Open Source Agorism: Prosper Without Patents or Copyrights.” Tune in!
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