I appeared yesterday on Ernest Hancock’s Declare Your Independence radio show for about two hours (hours 2 and 3 of his show) discussing intellectual property. It was a pretty wide-ranging, radical discussion, but I think I made progress with Ernie. The MP3 files are on the show’s page for that day; local files: hour 1; hour 2; hour 3.
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Douglas Carswell, M.P.
Related:
[Cross-posted at Mises Blog (archived comments below]
Austrians and others interested in fractional-reserve banking (FRB) will find of interest a banking reform about to be proposed in the UK. Douglas Carswell, an Austrian economics-informed member of the UK parliament for Clacton, is planning to introduce a so-called “Ten Minute Rule Bill” after Prime Minister’s Questions tomorrow (Wednesday, Sept. 15) that could have significant implications for current centralized FRB practices. The Bill will be supported by Steve Baker, the Member of Parliament for Wycombe, who also serves on the Advisory Board of the Austrian/classical liberal Cobden Centre. [continue reading…]
Jock Coats, who did the audio narration for my Against Intellectual Property, has posted a good reply to Cathy Smith’s pro-IP comments and confusions in his article Copyright – buying your time? (responding in part to her Time—Going, Going, Gone).
Jock is right to guess relation between Cathy and L. Neil Smith: she is his wife; she was involved in the debate about the Shire Society Declaration on the FreeKeene board. Some suspected L. Neil was speaking through her. She denied it, and said she was speaking for herself. All I know is they have both presented similary sketchy, incomplete and flawed arguments for IP. Their argument basicaly amounts to calling copying theft–i.e., assuming their conclusion; question-begging.
From Jan. 1996, when I lived in Philadelphia (related stories: Breakin’ the Law; Poodles Bite; Anna Belle (da poodle) ‘n Me; also Ben-Gay and Things not to say to a first-time mom):
Tonight, Wednesday night, around 1 1 : 30 p.m., I took Muffy [our Cocker Spaniel] out the basement door to walk her before going to bed. It was very dark out, as you can imagine, and was very quiet, and there was white all around, since the yards have been covered with snow since the last snowfall a couple weeks ago, which hasn’t yet melted. Well, I’m down there waiting inside the door (since it’s cold out), and Muff’s not back yet. So I peer outside and see her sort of straining and clambering on the snow just a few inches from the patio, but on the sloping incline of the yard, as it starts its pretty steep slope way down to the fence at the treeline about a 100 feet down. She was slipping on the surface of the (hardened) snow, and was trying not to slide downhill, and couldn’t make progress uphill even over the little flower bed (itself also covered with icy snow) to the patio. The Muff was stranded.
I was in my flannel pajamas–new green-blue plaid ones Skid and Smidge got me this Xmas–and only my socks, so I couldn’t go out to get her and help her in. So I called to her, and she tried a couple times to climb up but failed, and finally gave up, just standing there. So I went upstairs and put on these snow boots I tramp around in when I need to run outside, and went back down to the basement to get her. And as I got to her, my feet started to slide. It seems like my entire back yard has turned, this afternoon and evening (perhaps with a light freezing drizzle) into a solid sheet of ice. Not snow, but ice. So here I am, 11:30 pm, with a bad cold or perhaps bronchitis, freezing outside, dark, in Yankeeland, in my fucking flannel pajamas, and I land on my ass and start sliding down my back yard. I am rolling and twisting, trying to upright myself, but every time I do this I try to use my hands, which are subjected to very rough treatment by that hard ice zipping by. I knock down a small treelet sticking up out the snow. The ice surface is sort of rough, like very rocky sandpaper, and I could feel it through my PJ’S on my butt and back. I finally give up and sort of ball up and slid all the damned way down the yard like a turtle on its back till I almost hit that fence at the bottom, at least 100 feet from the top.
So I get up and think to myself, “look at this shit.” Muffy ‘s standing up there on the ice still, by the patio, probably looking down at me, thinking “and you’re gonna rescue me?” I consider yelling for Cin–’cause I, too, am stranded now–but it won’t work, it won’t help, and plus my chest hurts too much to yell. Plus I might attract the neighbors: “Evenin’, Mistah Spitzah! Might ye be so kind as to fetch that boy with the wench and fo’ wheel drahv and haul me up outta mah back yahd? ” “Eric, darling, it’s that poor Southern boy confounded by our Northern snow again.” No way!
So I considered walking way ’round the perimeter of the low area at which I was in till I got to some perhaps travelable area. Or, yes, maybe, I could sneak over there to that corner with the woods, and follow the woods up, and maybe dash across the short relatively level part of the yard up by my air conditioner unit, and then grab Muffy and hop onto the patio.
But I wasn’t ready to admit yet that I couldn’t just walk up that damned hill. The ice had cracked a little under me where I stood, leaving a rough footprint. So, I stomped my left heel real hard, made an indention, and advanced a step; and repeated this with the right, left, so forth for a few steps. I got about half way up the hill, the ice getting harder to break with each step, more like stomping on plywood. Finally the ice got hard enough or my stomping legs got tired enough, and I stomped but made no indention–just my flat boot on slippery ice, and again! I slid down that fucking yard. Arms flailing wildly–say , that’s a pretty, dark sky above, look at all the stars–cold Yankee wind in my ears, hands flayed by the icy bumps and pits rushing by. The palms of my hands and tips of my fingers are almost bleeding now, and I can barely feel these keyboard keys as I type this.
So then I tried my alternate route–up by the woods, by the a/c, and that finally worked. I grabbed the Muff–still waiting patiently for rescue–almost slipped but jumped to the patio, and after furtively looking around to make sure no neighbors had spied me, I dashed inside. Muffy can wait till the morning to crap.
See: Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Right.
***
My comment to a Cobden Center post (see also Rothbard’s Utilitarian Free-Market Economics):
@Bryan Niblett:
“The reason for private property is that a man is morally entitled to that which he brings into being and property laws are necessary to give him freedom of action in the domain of the property he has created.
“I recommend that you read John Locke’s Second Treatise on Civil Government(a great work) where he explains all this.”
The problem is the assumption that creation is an independent source of property rights. It is not. Creation is merely rearranging already-owned property into a more valuable configuration. Thus creation presupposes the things modified are already owned–and adds wealth, but not property rights. The only legitimate way to acquire property rights is by homesteading (appropriation) of unowned resources, or contractually from a previous owner.
The fallacious “creationist” approach to property is mixed up with Locke’s imprecise and overly metaphorical comments about the “ownership” of labor–labor is just action; it’s something you do with your body, i.e. with your property. If I own my body and other this the ownership of these scarce resources gives me the power to use them–to act with them–as I see fit. To say I own this action (labor) is unnecessary and double-counting, and leads to confusion. Lockean homesteading works simply because by transforming and using an unowned resource first you establish a better claim to it; there is no need in this argument to assume that labor is “owned”. And thus, there is no basis for the creationist view that if you labor to make an information pattern that you own that pattern. Labor only serves as part of homesteading in that it is just the way human action transforms and thus emborders a previously-unowned scarce resource. That is, it presupposes we are talking about ownable things–that is, things that need property rights to prevent conflict over their use–that is, conflictable things, or sometimes as they are called, rivalrous, or “scarce.” Information is not an ownable thing at all. It may not be homesteaded at all. It is not “transformed” or embordered. Rather, information is what guides human action; by acting with respect to (laboring on) a scarce good, following information that guides one’s actions, one transforms that scarce good and emborders it, thus appropriating it to one’s estate. But the information only guides action. If you think of a new way to manipulate or use your property that is useful to you but you in no wise gain ownership of the information itself. Human action is use of scarce means to achieve ends, where the means selected and the manner in which they are employed, is guided by ideas or information. The means used are scarce and thus have to be owned by the actor in order to use these means; but it makes no sense, and there is no need, for the ideas that guide his actions to be “owned” by him–only I can use my eggs and bowl to make a cake, so I need to own these means; but I am not prevented from making my cake if a thousand other people simultaneously use the same recipe to make their own cakes.
I discuss all this in my various IP writings at https://stephankinsella.com/publications/#IP; see also Locke, Smith, Marx and the Labor Theory of Value http://blog.mises.org/13064/lock-smith-marx-and-the-labor-theory-of-value/ and What Libertarianism Is, also http://blog.mises.org/11042/rand-on-ip-owning-values-and-rearrangement-rights/
Current writes:
“I think that from a utilitarian standpoint though there is a good argument for it. If there is no way to be rewarded for the creation of software (for example) then less software will be created.”
The problem is this is always asserted by IP advocates but never proven. Forget for a moment that utilitarianism is methodologically flawed (value is ordinal not cardinal and not interpersonally comparable) and morally bankrupt (it’s immoral to steal from A to give to B even if A is richer, even if the money taken “means less” to A than it does to B).
IP advocates have no proof that the marginal benefit of IP systems is greater than the cost of those systems. In fact they have no proof that there is marginal benefit at all. Studies so far tend to be inconclusive or to conclude that innovation is on net diminished by IP law.
See my comments in this respect to David Friedman here:
see also :
http://blog.mises.org/10217/yet-another-study-finds-patents-do-not-encourage-innovation/ and Reducing the Cost of IP Law, and There’s No Such Thing as a Free Patent
Update: Carla Hesse, “The Rise of Intellectual Property, 700 B.C.-A.D. 2000: An Idea in the Balance,” Daedalus 131, no. 2 (Spring, 2002): 26–45, 26: “The concept of intellectual property—the idea that an idea can be owned—is a child of the European Enlightenment. It was only when people began to believe that knowledge came from the human mind working upon the senses—rather than through divine revelation, assisted by the study of ancient texts—that it became possible to imagine humans as creators, and hence owners, of new ideas rather than as mere transmitters of eternal verities.” (emphasis added)
In Reason: Copyright Should Last Half A Century I mentioned libertarian writer Cathy Young’s advocacy of a 50-year copyright term in discussing the looming book-banning of a Catcher in the Rye sequel based on copyright. Well, the judge has made her decision and banned the book. Yep. Here, in America, land of the free, home of the brave, we are literally banning books–and what’s worse, this is due to a law that many libertarians support.
Congratulations, Ms. Young, and other pro-IP libertarians. Shame, shame.
Question: if being pro-war is not enough to revoke your libertarian credentials–how about book-banning?
Update: On Masnick’s blog, someone recommended Eugene Volokh and Mark Lemley’s “Freedom of Speech and Injunctions in Intellectual Property Cases” (which I have not yet read).
You would think libertarians would be unambiguously for freedom of speech. In Intellectual Property vs. Creative Freedom, Cathy Young discusses a literal book banning by a federal judge: he has temporarily enjoined “publication of a novel called 60 Years Later: Coming Through the Rye,” based on copyright claims by “J. D. Salinger, author of the 1951 classic Catcher in the Rye.” The judge is expected to decide soon whether to make the ban permanent. Yes, this is all because of copyright.
Copyright now lasts well over 100 years, due to continual copyright extension over the years–as Young notes, “When copyright legislation was first passed in the United States in 1790, the term of copyright lasted for 14 years, with the option of renewal for another 14.”
Does Ms. Young want to abolish copyright, this obvious threat to freedom of press? Or at least return to the 14 + 14 year system? Why, no. She has figured out the optimal way to handle this: “Personally, I would support a term of 50 years, with a portion of revenues from any derivative work published thereafter going to the original author.” Fifty years. Where she gets this number is anybody’s guess.
This is libertarianism?
I just ordered this cool new teeshirt. Too bad this other one, “Hoppe is my Homeboy,” was never produced! (Someone did this mockup a while back on a facebook page.) 
Great review of Hoppe’s The Economics and Ethics of Private Property (1993) by Walter Block. Block’s review was published in the Journal des Economistes et des Etudes Humaines, vol. 7, num 1, Mars. 1996, pp. 161-65.
Last night, sitting on my mosquito-free back porch, having a bourbon and a cigar, listening to Rush, with my poodle at my feet, as my baby slept peacefully upstairs, phoning a few libertarian pals, late into the night as is my occasional wont, I mentioned to one of them, Tim Swanson, one of my favorite memories, namely the delightful appetizer commonly served on the Isle of Capri, Italy, for example on the terrace of one’s hotel before venturing out for a proper meal, that being a small tray of nuts, fresh green olives, and potato chips, served with a selected beverage, such as a gin and tonic.
And as I mentioned this to him I began to crave that. And a small hope began to grow… I checked my pantry and fridge and found: a can of delicious macadamias from Hawaii; a bag of nice Boulder potato chips from Colorado; a jar of stuffed Spanish queen olives; and to top it off, some nice Edam cheese from Holland. The world’s bountiful cornucopia at the fingertips of the modern American!Aside: I recall with amusement that I asked the waiter to make me a dirty martini. He was confused so I told him to mix in some olive juice from the jar… whereupon he explained they only have fresh olives, not jarred olives. So they have no brine-olive juice with which to make a dirty martini! Small price to pay for those fresh olives.
A funny thread from years ago, which riled up the gadflies at a now-defunct site: Kinsella Wants To License Breeding; also spawned a thread on anti-state.com [pasted below]. The posts that sparked this. N.B.: of course I was not serious, but was making a point about children’s rights and parental responsibility (both moral and legal); one I elaborated on later in How We Come To Own Ourselves.
Posted by Stephan Kinsella on September 29, 2004 01:09 PM
Court: Deadbeat Dad Can Have More Kids — The Ohio Supreme Court on Wednesday overturned a judge’s order that a man avoid having more children while on probation for failing to pay child support.
The court ruled 5-2 in favor of Sean Talty, saying his sentence was too broad because it did not include a method for lifting the ban if Talty caught up with his child-support payments. [continue reading…]
Update: See Karen DeCoster, Back to the Bullying Topic, and Mike Masnick, Rethinking Bullying: Kids Don’t See It As Bullying.
From a series of posts on LewRockwell.com a few years back:
Okay, that’s too grandiose a title. But as I mentioned briefly in my entry in Walter Block’s Libertarian Autobiography series [update: How I Became A Libertarian, December 18, 2002, LewRockwell.com (published as “Being a Libertarian” in I Chose Liberty: Autobiographies of Contemporary Libertarians (compiled by Walter Block; Mises Institute 2010))], I think one reason I developed libertarian views is “my strong sense of outrage at injustice, which probably developed as a result of my hatred of bullies and bullying. I was frequently attacked by them as a kid, because I was small for my age, bookish, and a smartass. Not a good combination.”
A couple years ago I had a conversation with some libertarians about this, and brought up bullying–many of them had had similar experiences. Maybe there is a common theme here.
Which leads me to my main point here: it’s astonishing, to me, that bullying is permitted and laughed off as some natural kiddie thing. Even in good schools, bullies exist, and they mercilessly prey on smaller, weaker, meeker kids. We are talking serious violent crime here: assault and battery. Physical violence. Beatings. Theft. Why is there no outcry over this? Why is it tolerated? I am not fond of the over-litigiousness of modern American society, but if my boy were attacked by another kid in school, I would sue the attacker and his parents for assault and battery. It’s outrageous. I just don’t get why there are so many bullies: why don’t they teach them never to be cruel to the weak and innocent and defenseless. Followup: Lew agreed with the bullying point, and pointed out that “The creation of the kid culture, separate from parents and other family members, encourages this sort of evil. Thanks, public schools. We will never know the proper educational organization until we allow freedom. Mothers cooperatives, etc. As it is, the government defines what a school is.” For a partial explanation, see Against School: How Public Education Cripples Our Kids, and Why, by John Taylor Gatto.
Followup 2: One reader writes:
“This blog got my attention right away. Not pretending to be a psychologist, but having been bullied and done a little bullying myself as a child, let me offer this explaination: a bully bullies because he can. The humiliation of another enlarges the bully in his own mind (and there only). He picks his victims purely on the basis of risk. That is, the lower the risk to himself the easier the target. (Sounds like a few chicken-hawks we know in D.C.)
“The bully is essentially a coward. But the answer with childhood bullying (and probably with occupied states) isn’t litigation or bureaucratic intervention, just plain old self-defense. The easiest way to back down a bully is good right cross to the nose, and that’s exactly what I’d tell my own kid. One shot and he won’t be bothered again. Very laissez-faire I think.
“The problem with our cowardly lions on the Potomac is that they face no personal risk to there own lives, liberty, and property. Until they do they’ll continue to stalk the global schoolyard in search of easy prey.”
I agree in part. However, I think it’s incorrect to think that self-defense is “the answer.” Certainly, kids should be taught self-defense. But sometimes the kid is too small or weak. And in high school, we are talking seriously possible harm now. It’s akin to organized crime.
What interests me most, however, is not the psychology of bullies–there are many reasons some people choose to be thugs, and as they are not excuses, they are not that interesting to me–nor techniques for self-defense, but why libertarians don’t see bullying as aggression. Surely, you wouldn’t say, to women, that “the answer” to rape is self-defense? Surely, they should defend htemselves if they have to, but far better to prevent it and if they do it, you arrest and hang ‘em. Why does a bully get away with it?
In my view, if a kid bullies, he ought to–quite literally–be arrested and imprisoned for a time, and punished with severe pain. And if he does it again, he should be imprisoned for a long time, if not ejected from society. I am quite serious. They are criminals, pure and simple. There is no excuse for it. [Update: I am now opposed to state imprisonment, and even private imprisonment as a general matter, as discussed in Fraud, Restitution, and Retaliation: The Libertarian Approach.]
In Paul Allen: I Patented Silicon Valley Years Ago, Robert Wenzel, who claims to charge $750 for a 10 minute phone conversation, also claims he is going to write a book on his view of copyright and patent. His basic idea seems to be that some form of intellectual property right should be granted for independent creation, not for first creation. As I noted in the comments, he doesn’t seem to have a good grasp of IP law at all, and his argument is weak and confused. Copyright already does what he wants so does not need to be reformed. He seems to think trademark can be subsumed under copyright or patent even though trademark is based on fraud and has to do with identifying the source of a good or service, not with creating an original work of authorship or a practical invention as per copyright and patent law.
I reproduce various of my comments below. He has also made pro-IP comments and criticized me and Jeff Tucker previously–see links appended below: [continue reading…]
Stephan Kinsella is a libertarian writer and retired patent attorney in Houston, Texas. He has published widely on various areas of libertarian legal theory and on legal topics such as intellectual property law and international law. His publications include Legal Foundations of a Free Society (Papinian Press, 2023), Against Intellectual Property (Mises Institute, 2008), International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford, 2020), and The Universal Principles of Liberty (2025).
My Failed Libertarian Speaking Hiatus; Memories of Mises Institute and Other Events, 1988–20192025
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