The following is a lightly-edited transcript of my speech, “How Intellectual Property Hampers Capitalism,” presented at the Mises Institute Supporters’ Summit 2010 (Oct. 8-9 2010, Auburn Alabama) (audio and video).

[Update: see the article based on this talk: “How Intellectual Property Hampers the Free Market,” The Freeman (June 2011), republished as “How to Slow Economic Progress,” Mises Daily (June 1, 2011).]

How Intellectual Property Hampers Capitalism

Stephan Kinsella

Mises Institute Supporters’ Summit 2010

“The Economic Recovery:  Washington’s Big Lie”

Auburn Alabama * Oct. 8–9 2010

As Doug [French] mentioned, I am a registered patent attorney.  I try not to do too many patents anymore.  I find it a little bit distasteful.  It’s not the most enjoyable profession to have when you mention to people you’re a patent attorney, they always want to tell you their inventions.  I was sitting on the plane and some guy asked, “What do you do”?

I said, “I’m a patent lawyer.”

He said, “Oh, let me tell you about the time I invented One Click before Amazon patented it.”

I’m thinking, “oh God, I have a three hour flight with this guy.”  Maybe I should have told him I was a proctologist.  But I guess that could have actually been worse!

So, David [Gordon], that’s joke #1 that I saved for you today. [continue reading…]

[From my Webnote series]

On adding contingent postulates to make analysis “interesting” and useful, see

• Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) ch. 5 n.36

No, he was not talking about marriage. He was talking about an aspect of the praxeological approach to economics, in which we start with certain incontestable (apriori) propositions (related to human action and its categories), and we explicitly introduce certain contingent facts to make the inquiry interesting. For example,  we posit a society with money instead of a barter society. This insight of Mises has long intrigued me.

As I wrote in my article Knowledge, Calculation, Conflict, and Law (a review essay of Randy Barnett’s The Structure of Liberty):

… Barnett does not provide a rigorous argument showing where are the exact limits of the ability to deduce concrete rules. He evidently feels that the more abstract principles can, for some reason, be established by armchair theorists. If denizens of the ivory tower can do this, why can they not deduce or establish more concrete rules by simply considering more and more contextual facts? In the Roman law system—a somewhat decentralized legal system superior in many ways to the common law—Roman jurists (jurisconsults) helped develop the great body of Roman law by providing opinions on the best way to resolve disputes. These disputes were often purely hypothetical or imaginary cases, in which the jurists asked: “under such and such a possible or conceivable combination of circumstances, what would the law require?” ¹ It is conceivable that a large part or even all of the legal code existing in a given society can be “deduced” in this fashion, and then these rules applied like precedents to actual controversies as they arise. As a libertarian (and, I confess, a lawyer), I must say that I believe I would be more comfortable living under a set of concrete rules deduced by libertarian philosophers than the (perhaps more concrete) set of rules developed under the actual common law.

Still, Barnett’s argument in favor of a common-law system makes sense, even to libertarians who favor a deductive approach to rights …. Legal rules must be concrete in the sense that the rules must take into account the entire relevant factual context. Since there are an infinite number of factual situations that could exist in interactions between individuals, a process which focuses on actual cases or controversies is likely to produce the most “interesting” or useful rules.²⁶ It probably makes little sense devoting scarce time and resources to developing legal precepts for imaginary or unrealistic scenarios. If nothing else, a common-law type system that develops and refines legal precepts as new cases arise serves as a sort of filter that selects which disputes (i.e., real, commonly-encountered ones) to devote attention to.

²⁶This is analogous to Mises’s method selecting certain empirical assumptions (e.g., assuming there is money instead of barter) to develop “interesting” laws based on the fundamental axioms of praxeology, rather than irrelevant or uninteresting (though not invalid) laws. …

[continue reading…]

1. See Roman Law and Hypothetical Cases. [↩]

As discussed in my TLS post Stefan Molyneux’s “Libertarian Parenting” Series, there are some who advocate “unschooling.” Some of the ideas, as best I can understand them, make sense, but overall I think they are lacking in any systematic basis for their views and a coherent, systematic approach to education. I just read the following post by John Long, in which Maria Montessori, writing decades ago, criticized what appears to be what is now called unschooling. I agree with her.

Comic-book making instead of calculus?

Students direct their education at Manhattan Free SchoolThat is what people FEAR Montessori education to be: comic-book making instead of calculus.

It is not.

E.M. Standing collaborated with Dr. Montessori on the book Maria Montessori: Her Life and Work. The chapter about elementary education includes this section:

Freedom of Choice Must Still Be Based on Knowledge…Some of the new educationists—says Montessori– in a reaction against the old system of forcing children to learn by rote a tangled skein of uninteresting facts, go to the opposite extreme, and advocate giving the child “freedom to learn what he likes but without any previous preparation of interest….This is a plan for building without a basis, akin to the political methods that today offer freedom of speech and a vote, without education—granting the right to express thought where there are no thoughts to express, and no power of thinking! What is required for the child, as for society, is help towards the building up of mental faculties, interest being of necessity the first to be enlisted, so that there may be natural growth in freedom.”

Here, as always, the child’s liberty consists in being free to choose from a basis of real knowledge, and not out of mere curiosity. He is free to take up which of the “radial lines of research” appeals to him, but not to choose “anything he likes” in vacuo. It must be based on a real center of interest, and therefore motivated by what Montessori calls “intellectual love.”

Montessori was a revolutionary thinker. And she pointed to the middle path: FREEDOM…within limits.

Posted by john long at 12:39 PM

Update: see KOL062 | “Intellectual Freedom and Learning versus Patent and Copyright” (2010)

On Saturday, Nov. 6, 2010, I’ll deliver the dinner speech on “Intellectual Freedom and Learning versus Patent and Copyright,” for the 2010 Students For Liberty Texas Regional Conference, University of Texas, Austin. I’ll follow the keynote speaker, the libertarian-leaning former Governor Gary Johnson of New Mexico.

Rethinking Intellectual Property: History, Theory, and Economics: An Interview with Jeff Tucker, Mises Podcast (Oct. 9, 2010) (discussing the upcoming “Rethinking Intellectual Property: History, Theory, and Economics,” Mises Academy)

I have just founded the Center for the Study of Innovative Freedom (C4SIF). The inaugural message announcing it is reproduced below:

Welcome to the website for the Center for the Study of Innovative Freedom (C4SIF), a new center formed to build public awareness of the manner in which laws and policies impede innovation, creativity, communication, learning, knowledge, emulation, and information sharing. As noted in the sidebar, the Center opposes state intellectual property (IP) law as contrary to private property rights, and in particular seeks abolition of patent and copyright and other state laws, policies, and practices that distort or impede innovation. We intend to provide news commentary and analysis and scholarly resources from our unique pro-property, pro-market, pro-innovation, anti-IP perspective.

Our Advisory Panel comprises most of the leading radical, pro-market, anti-IP thinkers in the world. Our home, for now, and main activities, will be centered around this Site. Key anti-IP publications are collected on our Resources page; on our blog we intend to carry regular news and analysis, including that of many of the members of the Advisory Panel. Please feel free to contact us with any questions or suggestions.

—Stephan Kinsella

Most recent link: https://c4sif.org/2011/05/how-ip-hampers-the-free-market/

Update: now on my podcast feed: KOL061 | “How Intellectual Property Hampers Capitalism” (Mises Institute 2010)

***

My speech, “How Intellectual Property Hampers Capitalism,” presented last weekend at the Mises Institute Supporters’ Summit 2010 (Oct. 8-9 2010, Auburn Alabama), is online now; here is the Audio file; the video is below. A transcript of the speech is available here. The conference’s theme was “The Economic Recovery: Washington’s Big Lie.”

As noted on my media page, I’ll be delivering a speech entitled “How Intellectual Property Hampers Capitalism” at the Mises Institute Supporters’ Summit 2010, Oct. 8-9 2010, Auburn Alabama. The conference’s theme is “The Economic Recovery: Washington’s Big Lie.” There’s a dynamite list of speakers. The heroic Jim Rogers will be awarded the Gary G. Schlarbaum Prize, “For lifetime defense of liberty, given every year, awards $10,000 to a public intellectual or distinguished scholar.” I am looking forward to the entire event, especially the black-tie-optional reception and dinner honoring Mr. Rogers, at which I’ll wear my newly tailored tux (taken in to fit my newer, more svelte figure which resulted from losing 25 lbs on the HCG diet).

See also:

• The Trouble with Libertarian Activism
• C.P. Snow’s “The Two Cultures” and Misesian Dualism
• The Trouble with Milsted
• Engineers’ Syndrome

In Sam Harris is Nonsensical in Principle, one “Joel Grus” writes:

In my younger days, when I was full of libertarian bluster, I used to formulate arguments in terms of “Natural Rights.” Murder was Wrong (with a capital ‘W’) because it violated your “right to life.” I used to go on like this all day, until finally my friend Cesar (I think) kindly pointed out that I was full of shit.

I’m still full of libertarian bluster, I suppose, although you’d never in a million years catch me arguing based on “natural rights,” which (after my youthful indiscretions) I came to realize represent either religious (“they’re the rights god gave us”) or pseudo-religious (“they’re self-evident!”) attempts to create an “objective” basis for one’s policy preferences. (As a general rule, if most people refuse to agree with a proposition even after you’ve made your best case for it, it’s not “self-evident.”)

There’s no shortage of people who want an “objective” basis for their policy preferences. It turns them from opinions (e.g. “it’s my opinion that we should pay teachers more”) or hypothetical imperatives (e.g. “if we want to make teaching a more attractive profession, we should pay teachers more”) or self-interest (e.g. “speaking as a teacher, we should pay teachers more”) into “facts” (e.g. “it’s a fact that we should pay teachers more”) and “morals” (e.g. “if you don’t think we should pay teachers more, you’re a moral reprobate”). You can argue against opinions, but you can’t argue against facts! You can rail against self-interest, but not against morals!

It’s a nice sleight of hand when you can pull it off. Unfortunately, you usually can’t. Neither can Sam Harris, who has a new book out claiming that “science has a universal moral code.”

This, to me, shows one problem with the natural law type thinking about libertarianism, just as it shows, by analogy, what is wrong with self-delusional rah rah cheerleading of the typical political activist. [continue reading…]

As mentioned on the Mises Blog in Study with Kinsella Online, starting November 1 at the Mises Academy, I’ll be presenting the 6-week course Rethinking Intellectual Property: History, Theory, and Economics, with Monday evening lecture/question-and-answer sessions. An excerpt from the course description:

Rethinking Intellectual Property: History, Theory, and Economics

Political Philosophy PP350 — with Stephan Kinsella

Cost: $125
Length: 6 weeks
Dates: November 1, 2010 – December 17, 2010

Click here to register for this course

This course is taught by Stephan Kinsella, a practicing patent attorney and author of Against Intellectual Property. This is a 6-week course and will run from November 1 until December 17 (with Thanksgiving week off), and will provide an overview of current intellectual property law and the history and origins of IP. The course will explore and offer critical analysis of various utilitarian and deontological justifications offered for IP. The course will analyze the proper relationship between property, scarcity, and ideas, and integrate the proper perspective on IP and the nature of ideas and information with Austrian economics and libertarian theory. Various legal and political reforms consistent with this perspective will be offered along with discussions of market and social institutions in a post-IP world. Optional testing will include a multiple-choice mid-term exam and a combined multiple-choice and essay final exam. Kinsella is Senior Fellow of the Mises Institute, editor of Libertarian Papers, General Counsel for Applied Optoelectronics, and was formerly an adjunct professor at South Texas College of Law.  He has frequently lectured and published on IP law, international law, and the application of libertarian principles to legal topics, including Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe (co-editor, with Jörg Guido Hülsmann, Mises Institute, 2009).

Course outline and further information available at the course page: Rethinking Intellectual Property: History, Theory, and Economics.

I’m looking for a few good examples of how the US has pushed various emerging economies to adopt Western/American style statist measures in the guise of teaching the benighted states how to set up a modern “capitalist” economy. The examples that come to mind (but I don’t have clear examples/refernces for all of them) include:

• antitrust law
• income tax withholding
• anti-bribery laws
• narcotics regulations
• IP law/ACTA/WTO

I have in mind the way the US has “helped” Iraq “rebuild,” as well as various measures such as the Marshall Plan and strings attached thereto; strings attached to international loans; various programs to “help” the former Soviet/communist countries after 1991 or so such as the ABA CEELI program, BISNIS, etc. where they are encouraged to adopt the Western “rule of law” (sic).

I’m looking for American-style state practices pushed on other countries, where because of the conflation of the US as a modern capitalist society, the statist measures foisted on other countries could be erroneously attributed to or blamed on capitalism instead of American statism itself.

Any suggestions would be appreciated.