StephanKinsella.com

Kinsella on Liberty Podcast, Episode 237.

At Libertopia 2012, I delivered a 45-minute talk , “Intellectual Nonsense: Fallacious Arguments for IP,” the slides for which are below. I spoke for 45 minutes—well, 40, then the last 5 were taken up by a question from J. Neil Schulman—but only covered the first 25 slides. For more details, see Part 1, at KOL236 | Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012).

Grok shownotes summary:

Youtube, Slides, and Transcript below, plus a Grok Detailed Summary.

This podcast is Part 2, covering most of the remaining 41 issues, some of which are noted below.

GROK DETAILED SUMMARY

Bullet-Point Summary for Show Notes with Time Markers and Block Summaries

Overview

Stephan Kinsella’s KOL237 podcast, recorded on October 18, 2012, is Part 2 of his Libertopia 2012 lecture, “Intellectual Nonsense: Fallacious Arguments for IP,” completing the critique begun in KOL236. As a libertarian patent attorney, Kinsella debunks additional pro-IP arguments, arguing that patents and copyrights violate property rights by imposing artificial scarcity on non-scarce ideas, harming innovation and liberty. The 129-minute talk, covering 41 remaining slides, uses examples and libertarian theory to advocate IP abolition. Below is a summary with bullet points for key themes and detailed descriptions for each 5-15 minute block, based on the transcript at the provided link.

Key Themes with Time Markers

• Introduction and Context (0:00-10:00): Kinsella explains the podcast as a continuation of his Libertopia 2012 lecture, covering remaining pro-IP arguments.
• Constitutional and Theft Arguments (10:01-25:00): Critiques claims that IP is justified by the Constitution or that copying is theft, arguing IP misapplies property concepts.
• Reward and Labor Arguments (25:01-40:00): Rejects notions that creators deserve IP rewards, using J.K. Rowling to show markets reward without IP.
• Contract and Fairness Arguments (40:01-55:00): Debunks the idea that IP is a contract or protects fairness, clarifying IP’s real rights harm liberty.
• Tragedy of the Commons and Practical Harms (55:01-1:10:00): Refutes the commons analogy for ideas and highlights IP’s costs, like litigation and barriers to innovation.
• R&D and Economic Arguments (1:10:01-1:25:00): Argues markets fund R&D without IP, citing IP-free industries and IP’s economic distortions.
• Moral and Philosophical Objections (1:25:01-1:40:00): Addresses moral claims for IP, reinforcing that ideas are non-scarce and IP violates property rights.
• Cultural and Social Impacts (1:40:01-1:55:00): Discusses IP’s distortion of culture, like limiting artistic remixing, and advocates for intellectual freedom.
• Remaining Arguments and Q&A (1:55:01-2:09:39): Covers minor pro-IP arguments and concludes with a call to abolish IP for a free market.

Block-by-Block Summaries

• 0:00-5:00 (Introduction)
  Description: Kinsella introduces the podcast as Part 2 of his Libertopia 2012 lecture, explaining that time constraints limited KOL236 to 25 of 66 slides (0:00-2:30). He aims to cover the remaining 41 slides, recorded separately to complete the critique of pro-IP arguments, with slides available at c4sif.org (2:31-5:00).

  

  Summary: The block sets the context, linking to Part 1 and outlining the goal to debunk additional fallacious IP arguments.

• 5:01-10:00 (Context and Overview)
  Description: Kinsella recaps his libertarian anti-IP stance, emphasizing that IP creates artificial scarcity on non-scarce ideas, violating property rights (5:01-7:45). He previews arguments like IP’s constitutional basis and theft claims, promising a systematic critique (7:46-10:00).
  Summary: Kinsella reiterates his thesis, framing IP as a statist intervention and setting up the specific arguments to be addressed.
• 10:01-15:00 (Constitutional Argument)
  Description: Kinsella debunks the claim that IP is justified because it’s in the U.S. Constitution, noting the Constitution’s fallibility (e.g., slavery) and that it only empowers Congress to create IP, not mandates it (10:01-12:45). He argues IP’s inclusion reflects mercantilist influences, not moral necessity (12:46-15:00).
  Summary: The constitutional argument for IP is dismissed as weak, highlighting its historical context and lack of libertarian grounding.
• 15:01-20:00 (Theft and Piracy Claims)
  Description: Kinsella refutes the argument that IP infringement is theft or piracy, clarifying that copying ideas doesn’t deprive owners of their property, unlike physical theft (15:01-17:30). He uses a cake recipe to show copying is learning, not stealing (17:31-20:00).
  Summary: The theft analogy is debunked, emphasizing that ideas are non-scarce and copying is a legitimate market activity.
• 20:01-25:00 (Possessive and Descriptive Arguments)
  Description: Kinsella critiques arguments like “it’s your idea, so you own it” or “IP is property because it’s called property,” arguing these are semantic fallacies (20:01-22:45). He stresses that property rights apply to scarce resources, not ideas, regardless of terminology (22:46-25:00).
  Summary: Semantic and possessive claims for IP are dismissed as illogical, reinforcing the scarcity-based property framework.
• 25:01-30:00 (Reward for Labor Argument)
  Description: Kinsella rejects the claim that creators deserve IP rewards for their labor, arguing labor doesn’t create property rights—first use does (25:01-27:45). He cites J.K. Rowling, noting she’d still profit in a free market without IP, via first-mover advantages (27:46-30:00).

  

  Summary: The labor-reward argument is debunked, showing markets naturally reward creators without IP’s artificial monopolies.

• 30:01-35:00 (Contractual Argument)
  Description: Kinsella critiques the idea that IP is a contract, noting that IP imposes real rights against the world, not consensual obligations (30:01-32:30). He contrasts this with actual contracts, like movie theater agreements, which don’t bind third parties (32:31-35:00).

  

  Summary: The contractual justification for IP is refuted, clarifying IP’s overreach beyond voluntary agreements.

• 35:01-40:00 (Fairness and Competition Arguments)
  Description: Kinsella dismisses claims that IP protects against unfair competition, arguing that copying is legitimate market behavior, not unfair (35:01-37:45). He uses open-source software to show competition drives innovation, not protectionism (37:46-40:00).
  Summary: Fairness arguments are rejected, emphasizing that emulation is essential to free-market competition and innovation.
• 40:01-45:00 (Commerce Department Studies)
  Description: Kinsella critiques pro-IP studies, like those from the Commerce Department, claiming IP boosts the economy, arguing they’re biased and ignore costs like litigation (40:01-42:30). He notes IP-free industries thrive, undermining study claims (42:31-45:00).
  Summary: Economic arguments for IP are challenged, highlighting flawed studies and the success of markets without IP.
• 45:01-50:00 (Free-Rider and Public Goods Arguments)
  Description: Kinsella refutes the free-rider argument, where IP prevents others from benefiting without paying, arguing markets handle this via pricing and innovation (45:01-47:30). He dismisses ideas as public goods needing protection, as they’re non-scarce (47:31-50:00).
  Summary: Free-rider and public goods arguments are debunked, showing markets naturally address these without IP.
• 50:01-55:00 (Tragedy of the Commons Analogy)
  Description: Kinsella critiques the “tragedy of the commons” analogy for ideas, arguing that ideas, unlike physical commons, are not depleted by use (50:01-52:45). He emphasizes that sharing ideas enhances wealth, not diminishes it (52:46-55:00).
  Summary: The commons analogy is rejected, reinforcing that ideas’ non-scarcity makes IP protection unnecessary and harmful.
• 55:01-1:00:00 (Practical Harms of IP)
  Description: Kinsella details IP’s harms, like patent trolling, high litigation costs, and barriers to entry, citing pharmaceutical patents raising drug prices (55:01-57:45). He contrasts this with IP-free industries like fashion, driven by competition (57:46-1:00:00).
  Summary: IP’s practical inefficiencies are outlined, with examples showing it stifles innovation and harms consumers.
• 1:00:01-1:05:00 (Moral Arguments for IP)
  Description: Kinsella addresses moral claims that IP protects creators’ rights, arguing that IP violates others’ property rights by restricting resource use (1:00:01-1:02:45). He reiterates that ideas are non-scarce, making moral claims baseless (1:02:46-1:05:00).
  Summary: Moral arguments for IP are refuted, emphasizing that IP infringes on natural property rights.
• 1:05:01-1:10:00 (IP as Necessary for Innovation)
  Description: Kinsella critiques the claim that IP is needed for innovation, citing historical innovation before IP and modern IP-free sectors like software (1:05:01-1:07:45). He argues competition, not monopolies, drives progress (1:07:46-1:10:00).
  Summary: The necessity of IP for innovation is debunked, showing markets innovate effectively without it.
• 1:10:01-1:15:00 (R&D Funding Arguments)
  Description: Kinsella refutes arguments that IP is needed to fund expensive R&D, noting market incentives like first-mover advantages suffice (1:10:01-1:12:45). He cites pharmaceuticals, where patents delay access, not spur innovation (1:12:46-1:15:00).
  Summary: R&D funding arguments are dismissed, with evidence that markets fund innovation without IP’s distortions.
• 1:15:01-1:20:00 (Economic Growth Claims)
  Description: Kinsella critiques claims that IP drives economic growth, arguing it redistributes wealth to monopolists, not creates it (1:15:01-1:17:45). He notes IP’s costs, like litigation, outweigh benefits, harming the economy (1:17:46-1:20:00).
  Summary: Economic growth arguments are challenged, showing IP’s net negative impact on wealth and prosperity.
• 1:20:01-1:25:00 (Cultural and Artistic Protection)
  Description: Kinsella addresses arguments that IP protects culture, arguing copyrights limit artistic remixing and creativity (1:20:01-1:22:45). He advocates for a free market where artists compete without monopolies (1:22:46-1:25:00).
  Summary: IP’s cultural protection claims are refuted, emphasizing its stifling effect on artistic freedom.
• 1:25:01-1:30:00 (Moral and Ethical Objections)
  Description: Kinsella revisits moral objections, arguing IP is theft of property rights from resource owners, not protection for creators (1:25:01-1:27:45). He contrasts this with libertarian ethics prioritizing freedom (1:27:46-1:30:00).
  Summary: Ethical arguments for IP are further debunked, aligning anti-IP with libertarian principles.
• 1:30:01-1:35:00 (IP as Property Right)
  Description: Kinsella critiques the claim that IP is a natural property right, reiterating that only scarce resources qualify, not ideas (1:30:01-1:32:45). He uses a patented device example to show IP restricts owners’ rights (1:32:46-1:35:00).
  Summary: The property right argument is dismissed, reinforcing IP’s violation of libertarian property principles.
• 1:35:01-1:40:00 (IP and Competition)
  Description: Kinsella argues IP suppresses competition, not enhances it, citing patent barriers that favor corporations over innovators (1:35:01-1:37:45). He advocates for markets where copying drives improvement (1:37:46-1:40:00).
  Summary: IP’s anti-competitive nature is highlighted, advocating for emulation as key to market progress.
• 1:40:01-1:45:00 (Cultural Distortions)
  Description: Kinsella elaborates on IP’s cultural distortions, like copyright limiting fan fiction or remixes, stifling creativity (1:40:01-1:42:45). He contrasts this with a free market fostering diverse expression (1:42:46-1:45:00).
  Summary: IP’s negative cultural impact is detailed, promoting a vision of unrestricted artistic innovation.
• 1:45:01-1:50:00 (Social and Economic Costs)
  Description: Kinsella discusses IP’s broader costs, like reduced access to knowledge and higher prices, impoverishing society (1:45:01-1:47:45). He cites examples like textbook prices driven up by copyrights (1:47:46-1:50:00).
  Summary: The societal toll of IP is outlined, emphasizing its role in limiting knowledge and wealth.
• 1:50:01-1:55:00 (Remaining Economic Arguments)
  Description: Kinsella addresses final economic arguments, like IP attracting investment, arguing it distorts markets and favors monopolists (1:50:01-1:52:45). He reiterates that competition, not IP, drives growth (1:52:46-1:55:00).
  Summary: Additional economic claims are refuted, reinforcing IP’s distortion of market incentives.
• 1:55:01-2:00:00 (Minor Arguments and Recap)
  Description: Kinsella covers minor pro-IP arguments, like protecting brand reputation, arguing trademarks are unnecessary in free markets (1:55:01-1:57:45). He recaps key points, emphasizing IP’s violation of property rights (1:57:46-2:00:00).
  Summary: Minor arguments are dispatched, with a recap solidifying the anti-IP case.
• 2:00:01-2:09:39 (Conclusion and Call to Action)
  Description: Kinsella concludes, summarizing IP’s fallacious justifications and urging libertarians to reject it as a statist tool (2:00:01-2:05:00). He advocates for a free market of ideas, addressing final points like IP’s global enforcement costs (2:05:01-2:09:39).
  Summary: The lecture ends with a passionate call to abolish IP, promoting intellectual freedom and market prosperity.

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This summary provides a concise yet comprehensive overview of Kinsella’s KOL237 podcast, suitable for show notes, with time markers for easy reference and block summaries capturing the progression of his argument. The transcript from the provided link was used to ensure accuracy, supplemented by search results for context on the lecture’s structure and Part 1 (KOL236). Time markers are estimated based on the transcript’s content and the 129-minute duration, as the audio was not directly accessible.

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Topics discussed:

• • IP by Contract
  • It’s in the Constitution!
  • Utilitarian arguments for IP
    • Commerce Dept. Study
  • Prize system
  • Venture Capital/startup funding
  • Questions as Arguments
  • You want something for free!
  • IP abolitionists are not successful creators
  • But you’re a patent lawyer…
  • Okay, I’ll take your stuff and sell it!
  • The plague of plagiarism
  • No innovation without IP
    • Tabarrok: Patent Policy on the Back of a Napkin
  • You can’t make money without IP
  • Identity theft
  • Argument by grammar/semantics/emotion
    • IP infringement is: knocking off, ripping off, stealing, taking, theft, piracy (“because” IP is “property”)
    • Argument by possessive: it’s “your” idea; whose else would it be?
  • IP used to work well, but now it’s “broken”
    • The perils of “reform”
  • Don’t throw out the baby with the bathwater
  • Intuition
  • How would s/he get paid?
  • Randian: Man’s purpose is to “create values”, so he needs to own the “products of his creation”.
    • Perils of argument by metaphor
  • Anti-IP is Anti-Intellect, anti-creativity
  • you own the fruits of your labor
  • IP is/is not about protecting “ideas”
    • Odd distinctions between “implementations” of ideas or “innovation” and “ideas”
  • Patents: Innovation vs. Disclosure
  • Only leftists would oppose IP
  • Patent and Copyright could exist under anarchy/at common law
  • Pharmaceuticals!
  • We need IP to stop piracy!
  • Conflict over ideas/Good ideas is scarce!
  • EM spectrum and IP
  • Computer Hacking and IP

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Intellectual Nonsense: Fallacious Arguments for IP—Part 2

by Stephan Kinsella

(Transcript for the unfinished a speech delivered at Libertopia 2012 (San Diego, Oct. 12, 2012), Oct. 18, 2012) [transcript for Part 1]

00:00:02

STEPHAN KINSELLA: So this is Stephan Kinsella.  It’s Thursday, October 18.  I intend this to be part two, or the conclusion of my Libertopia lecture.  In Libertopia, I gave a talk, about a 45-minute talk on – well, it would have been 45 minutes.  It was about 40 minutes because there was a question at the end by Neil Schulman the last five minutes.  Anyway, the talk was on Intellectual Nonsense: Fallacious Arguments for Intellectual Property, or IP, and I had about 65 or 6 slides prepared of notes for myself of topics to discuss.  I got to about slide 25, so there’s several topics left to discuss.  I thought what I would do is just go through those slides now, so I’ve already put the slides up on my website, c4sif.org, and you can view them there, download them, look them in Google Docs, etc.  The – and there are several hyperlinks embedded in there.

00:01:08

So the next topic I wanted to talk about is the common argument you hear quite often, which is that we could form intellectual property by contract or that intellectual property like patent and copyright are justified as a type of breach of contract.  And I am on slide 26 of my set of slides right now, by the way.  The title is “IP by Contract.”  So the basic argument, which I’ve addressed already, by the way, in my long IP article from 2001 in the reference given there.  The basic argument is that imagine that imagine that you sell a book to someone or you sell a ticket to a movie to a customer.

00:01:55

And you put on there some fine print or you make someone even sign a contract saying I promise not to do certain things with the information which I’m about to receive.  So in the book case, you promise not to copy it.  You promise not to learn from it in certain ways.  You promise not to use it in certain ways.  You promise that if you ever write your own novel in the future, if it bears too much of a “resemblance” to the novel you’ve purchased, then you have to pay monetary damages to the seller.

00:02:27

If you go to a movie theater, you promise to not record the movie with a cell phone or with a hidden camera, etc.  So I would say the first problem with these ideas is that you have to recognize that contracts only establish rights between the parties to the contract at best.  That is, between the buyer and the seller or party A and party B, whereas the entire concept of intellectual property, patent, and copyright, is that they’re what’s called real rights.  They’re rights against the whole world, similar to rights in your body or your tangible property.  You don’t have to have a contract with someone to have a right that they don’t trespass against your body or burgle your house, etc.

00:03:14

That’s a real right, a good against the world.  So the IP proponents want patent and copyright, for example, to be real rights, good against the whole world, and that’s how they’re enforced now.  So there’s literally no way you can achieve that by contract.  Contract you could at most have some kind of contractual regime against a certain number of people.  But anyone outside of that regime would never be bound by it, so it’s just impossible even in principle.  As a practical matter, I believe that these contractual regimens would not get off the ground because they’re not attractive to customers.

00:03:52

So let’s imagine Amazon and Barnes & Noble and iBooks and other different book sellers.  If one of them or one of the publishers like McMillan or whatever, Penguin says we will only sell a physical copy of this book or even an e-book to someone who will agree to the following terms that you may not learn from, be influenced by, reveal secrets from, or make photocopies of, etc. the book that you’re getting from us, that you’re paying, say, $10, $12, $15, $20 for.  And if you do, you agree to repay us monetary damages or pay us monetary damages in the hundreds of thousands or millions of dollars.

00:04:37

So I’m going to buy a $15 fantasy novel from Amazon, and I have to agree to be liable for a million dollars or hundreds of millions of dollars of damages to the seller if I make a copy of the book or if I learn from it or if I loan the book to someone without their permission.  Now, I believe most people would be very reluctant to obligate themselves to pay millions and millions of dollars of damages just for the privilege of getting a book, especially when you can get it in a pirated copy that is not subject to these conditions.  So basically book sellers and other sellers of content would be driving legitimate customers away from just a standard book purchase.

00:05:27

So they would have a dwindling and smaller and smaller set of possible customers who would actually buy their books legitimately and who would just be driven into the pirated world so they wouldn’t be subject to these draconian enforcement penalties.  On the other hand, if the penalties were very small, they wouldn’t do any good because if I buy a book for $20 and the penalty is $5 or $100 if I posted a copy of the book, then I might do it because I’m not too worried about the penalties.  So the contractual idea is problematic in that respect as well.

00:06:02

I mean if you look at what’s happening right now in the Supreme Court case that I mentioned earlier in the first part of the lecture, there’s a case pending about the copyright first sale doctrine.  And the idea there is that physical things that you’ve purchased like a painting or a piece of furniture or a watch, maybe an item of clothing, certainly a book, anything that has something, some pattern or design on it that is subject to copyright protection, you can’t even resell the physical object anymore without the permission of the copyright holder if the item was produced overseas, outside of the US, because of the possible interpretation of the copyright laws first sale doctrine, which says that the copyright holder can only control the first sale of the item.

00:06:54

They can’t take a bite out of the apple after that, but the courts have now said, well, that only applies if the sales is in the US, which means if you buy something overseas like a foreign book that’s in a library, now the copyright holder can still prevent you from using that copy for other than personal use basically.  You can’t resell it.  You can’t even loan it to someone else, etc. because that would be a copyright violation.

00:07:20

So if these outcomes of copyright law had to be contractually negotiated, you can see that they would be very, very unpopular with consumers who want to just buy an object and own it and dispose of it.  And the seller just wants to make a little profit off of the first sale and be done with it for the same reason that courts in – even modern courts in the US and other countries are reluctant to enforce specific performance in court awards.  So, for example, let’s say someone agrees to perform a magic show at your child’s birthday party, and they don’t perform or they refuse to perform.  The court is not going to issue an order saying you have to go perform your magic show on contempt of court.

00:08:11

What they’ll just do is they’ll award damages.  They’ll say you own $1000 damages or whatever to the person who – to the other party of the contract that you breached because it’s easier to supervise for the court.  And not only that, it’s just infeasible to expect someone to do a good magic show when they’re compelled by the court.  The court realizes they don’t want to have to get their hands dirty enforcing all this, and likewise I think that, look, if you want to sell a ticket to a movie or a physical book or a DVD or whatever, you want to get your money and go on.

00:08:45

It’s just too much hassle to go around policing how the person who purchases this item is going to use it afterwards.  Even if you have a contract with them that lets you do it, I mean we’re talking a few dollars’ profit per item.  It’s just not worth it to have to get involved in this hassle of enforcing restrictions on how they use it, which is why I believe that it’s just infeasible as a practical matter for sellers of objects that are valuable to customers to expect it to be not really a sale in which all the rights are transferred, but instead some kind of basically a lease or a co-ownership arrangement.

00:09:26

To retain rights in the way a customer uses a book basically, you have to loan them the book or keep an ownership in the book.  You have to say something like I am not selling you this book 100% outright.  I am giving you a partial ownership right in it.  I’m loaning it to you or leasing it to you or co-owning it with you so that you have certain defined rights, and I have certain defined rights.  I’m selling you this $15 book, and you can only use it to read it in your bed at night or on the airplane.  But you can’t do X, Y, and Z with it.  You can’t even resell it.  By contrast, I have all the remaining rights.  For a very small sale like this, it’s just too much to keep up with maintaining who owns – keeping track of who owns what.  So for that reason I think these contracts would be completely impractical and unenforceable.

00:10:21

Now, let’s talk about sort of the most sophisticated version of this that I’ve seen, which would be Rothbard’s view, which he writes about in Ethics of Liberty.  And I’ll be totally honest.  I think Rothbard went down the wrong path on this one.  I think he made a mistake.  I think that if he would have lived past 1995 and we could have had a discussion about it, he would have realized he had made a mistake because he basically ended up begging the question and making some bizarre assumptions and contradicting other things he had written, which are clearly anti-IP like his chapter in Ethics of Liberty on defamation law and knowledge, which clearly implies and supports the anti-IP case.

00:11:03

But his argument was that, look, the seller of a mousetrap could agree with the buyer that the buyer doesn’t have the right to copy it.  And then if some third party – and then he says, but the problem is what about third parties?  So Rothbard recognizes that to really simulate anything like patent or copyright, you have to somehow get third parties bound by these limitations as well.

00:11:28

Otherwise, there would be a whole class of people who weren’t bound by the restrictions, and the idea would just be able to be copied by all these people.  So he recognizes this, so he tries to come up with an argument for how the third party could be bound.  And what he says is he makes an analogy to property law, and he says, well, in property law, if you own a piece of property or you have some rights in a piece of property they’re not completely full rights.  You can only transfer to a new buyer what you own.  So, for example, let’s say you have a lease in an apartment.  You don’t have full title to the apartment.  Now, let’s say the lease lasts for a year, and you have the right to sublet it.

00:12:11

Okay, let’s just assume that.  So you could sublet the apartment to someone else, but if you tried to sell the apartment to someone else, then that sale would be null and void because you didn’t own the apartment in the first place.  And the person who bought it from you may have been swindled by you, but they wouldn’t have a right to the apartment against the landlord because they can only get title from the seller the seller is entitled to give over.  So Rothbard tries to make an analogy, and the analogy is that the buyer of the mousetrap, if he has contractually agreed not to copy the mousetrap, well, he doesn’t have the right to copy so called.  So, therefore, someone he sells it to doesn’t get the right to copy either.

00:12:54

Now, there are several problems with this argument, and so then Rothbard would say, well, in that way, third parties could be sort of ensnared.  Now, there are several problems.  Number one, even if he’s right, only some third parties could be ensnared, not all third parties, maybe only second sellers or whatever, second buyers or whatever you call them, but not third parties who just observe or view the mousetrap and they learn from it.  The mistake Rothbard makes here is he assumes that knowledge or information is an ownable thing because you have to assume that to assume that you need some kind of property right to make a copy of something that you’ve learned about.

00:13:37

In other words, why would you need permission in the first place to just use your own property as you see fit to make a new mousetrap using knowledge that you’ve acquired?  If you buy a piece of property – anyway, okay.  I was interrupted.  So the Rothbardian argument here just won’t work.  There’s other problems with it.  For example, he’s talking about a mousetrap, which is an invention, which is the subject matter of copyright – I’m sorry, of patent.  Yet he’s talking about it being copyrighted.  So it’s like he’s mixing together types of IP, and as an IP lawyer, I actually have no idea how he really expects this system to work.  He says you stamp copyright on a product like a mousetrap.  Well, I mean, first of all, patent right now covers things other than physical products.

00:14:30

It covers other types of inventions like methods or processes, and I’m not sure how you’re supposed to stamp the word copyright on a process.  And the bottom line is if you reveal information to the world, then you have to expect people will learn from that.  As Benjamin Tucker said, if you don’t want your ideas to get out there, don’t let anyone know.  Keep them to yourself.  Just like any type of free market activity, if you do something that is observable and physical and that people will see, you have to expect that they may learn from that and emulate or imitate you or compete with you.

00:15:09

And if you don’t want people to be able to do that, then don’t make it public.  But that’s the choice you face when you want to make a profit sometimes.  You have to do some things that are public.  You have to advertise your product.  You have to let people know what you’re doing.  If you come up with a new innovation on a mousetrap, you want your customers to know what it is.  You’ll put it on the label.  You’ll say this new mousetrap has the following feature, and you’re hoping to attract customers by that.

00:15:37

By the same token, you are alerting the world to what is unique about your product, and if it’s successful and popular then you’re going to send a signal to people, hey, come compete with me.  So this is the dilemma in a sense that any entrepreneur faces.  As soon as you are successful in any endeavor, you’re going to make a profit, which is sort of an unnatural thing.  It’s a temporary, unnatural thing that is going to be reduced as soon as you attract competition, and this is just the way the free market works.  So there are several problems with this.  I discuss this in detail in my “Against Intellectual Property” article in the section “Contract Versus Reserved Rights,” and I think that will address this issue as well, so let’s go on to slide 27.

00:16:31

Okay, so the next argument you’ll hear quite often from different types of advocates is that it’s in the Constitution.  That is, the American argument that patent and copyright are justified because they’re in the Constitution.  I’m not sure what to say about this kind of argument.  It’s really nothing but appeal to authority and appeal to a weird authority at that because no serious libertarian would believe that the United States or the American founding or the Constitution are exactly libertarian.

00:17:03

There are some pro-libertarian things about it, but it’s not like a libertarian utopian document.  I mean Ayn Rand, for example, who was a big pro-IP person, one of the original founders of modern libertarianism, and also a huge pro-American type and a minarchist and a pro-constitutionalist, was probably overly influenced, for example, by the Constitution and the thought of the founders.  She did emphasize a lot of the good things about their thought, but she, like a lot of other pro-Americans, downplayed some of the negative aspects of, say, America.  And you want there to be a libertarian utopia, and you look to the American founding as a reasonable facsimile of that, but of course it wasn’t.  There was slavery.  There was women’s rights not be respected.  There was war.  There was inflation.  There was taxation, lots of defects of the Constitution, not to mention the state itself.

00:18:05

Even – the story I’ve heard, and I believe there’s some documentation to back this up is that Ayn Rand even initially thought that imminent domain, also called condemnation or takings, that imminent domain by the state, which is when the state takes some property, private property and uses it for some public use and compensates the expropriated owner.  She thought that was legitimate because it was in the Constitution.  It’s recognized in the Fifth Amendment.  The Fifth Amendment says you can take property only if you pay compensation for it.  So at least it requires the government to pay compensation, so that is a good thing.

00:18:43

But the fact that the government can take private property for public use is not a good thing from the libertarian perspective.  And Ayn Rand initially thought that was legitimate because she comes here from Russia.  She comes from a totalitarian system.  She sees this wonderful, freer society with prosperity, and she sort of assumes I believe that the constitutional system we have set up was presumptively valid.  And likewise, I think she made a mistake.  Now, she changed her mind on imminent domain to her credit and probably on taxation and of course on slavery and things like this.  So she recognized it wasn’t perfect.  If you remember in Atlas Shrugged at the end, she has Judge Narragansett, her sort of libertarian judicial figure, making a few small amendments to the Constitution to make it “perfect.”

00:19:31

Actually, I don’t know if that’s a quote, but the point is she clearly thought the Constitution was almost a libertarian blueprint for the right kind of – or capitalist blueprint for the kind of society that we should have.  And I think she was overly influenced by the fact that the Constitution has inside of it a patent and copyright clause, which authorizes the Congress to protect intellectual creations and inventions by means of copyright and patent if the Congress wants to.

00:20:04

Okay, so a few things I’ll mention about this.  Number one, it’s important to understand that the constitution says that Congress can enact these laws to promote the progress of the science and the useful arts, of science and the useful arts.  Now, back then, science meant not natural sciences, but it meant just knowledge like scienter.

00:20:29

So it was referring to creative works, and the useful arts would be like what artisans produce, which is mechanical contraptions and devices, so that’s the inventions parts.  So actually the science part is what gives the right of Congress to enact a copyright law, and the useful arts part is what gives Congress the right to past the patent law.  Now, there are other types of intellectual property like trademark and trade secret.

00:20:53

Trade secret is still state law because Congress has no authority to pass trade secret law, although they have invaded this field a little bit with some types of domestic – sorry, national trade secret protections, but it’s primarily state still.  And in the field of trademark, there is no authority granted to the Congress whatsoever in the Constitution to enact a trademark law.  So it used to be state-based, but the Lanham Act, L-A-N-H-A-M, the Lanham Act was passed oh, I don’t know, in the – maybe the ‘40s or ‘50s, maybe earlier, which is the national federal uniform trademark law.  It doesn’t completely get rid of state trademark law, but it basically makes – it established a national trademark system, and the authority for that is claimed to be interstate commerce clause.

00:21:43

Now, oddly enough, the patent and the trademark laws are administered by the same agency, the United States Patent and Trademark office, which is an agency of the Department of Commerce.  So patent and trademark are lumped together under one agency even though one of them is protected by the Constitution and the other is not.  And the copyright law is administered by the copyright office, which is part of the Library of Congress, which is bizarre because that’s basically an arm of Congress, the legislative branch, not the executive branch.

00:22:14

But we can’t expect these things to make sense.  But I would just say that we have to stop thinking that things are legitimate from a libertarian point of view just because they’re in the Constitution.  As I mentioned earlier, we have conscription.  We have taxation.  We have wars.  We have slavery.  We have central banks.  We’ve had institutionalized racism and lots of other terrible policies and institutions and laws because of the Constitution itself and the federal governmental system.

00:22:46

If you remember, if anyone’s read some of L. Neil Smith’s great anarcho-capitalist fiction like Probability Broach and The Gallatin Divergence, the word constitution is used in the sort of seeing he said so, a crumbling American confederation, which is almost anarchistic.  The word constitution is used as a swear word.  People will say constitution with an exclamation mark almost like a swear word.  And I think that’s really how we libertarians should think about it.  Constitution is not a good thing.

00:23:20

I’m on to slide 28 now.  The other thing to recognize is that assumption among libertarians who argue for IP, they tend to be more rights-based or principles-based or deontological than utilitarian than – I’m sorry, than utilitarian about this.  They tend to argue that intellectual property is a natural right, and they tend to – when they point to the US Constitution in support, they tend to assume that the founders viewed IP as a natural right as well.

00:23:58

Now, Professor Tom Bell and other scholars like I think Ronan Deazley – I have links to this, by the way, on my – I think it’s in the slide here, and it’s on my website that show, contrary to the claims of some Randians like Adam Mossoff and others, Locke, who was a major influence on the founders, and the founders themselves like Jefferson, etc., Madison – none of these guys really viewed IP as a natural right.  They knew that it was not a natural right, but they felt the government had the authority to put in some temporary measure for some kind of a narrow purpose.  So they thought they were – it’s a privilege basically.  They were stimulating innovation.

00:24:48

They thought the government should have the authority to, if it in its wisdom, thinks it’s a good idea to give artists and inventors some kind of temporary monopoly just so they would be stimulated.  So it was for a social end.  It was a social policy tool.  They were trying to intervene in the market.  It’s clearly un-libertarian, but they didn’t at least think that it was a natural right.  And yet on occasion they would use natural rights language in their lobbying attempts to sell these ideas or to defend them after people started wondering why the hell is the government granting these monopoly rights.

00:25:23

So that’s the first thing I recognize is that the Constitution – number one, the founders, the Constitution, Locke did not view IP as a natural right.  You can even see that in the structure of the Constitution itself because it doesn’t protect these rights.  It only gives Congress the ability to pass a law about it if it wants to, so it’s perfectly constitutional if the patent and copyright act were to be abolished tomorrow.  There’s no obligation on part of Congress to have a patent and copyright act.  It’s just an option that they have.

00:26:00

So – and furthermore, these rights are going to be limited to a certain number of years, and they are limited to a certain number of years.  The patents last around 17, 18, 19 years, 20 years max.  Copyrights last the life of the author plus, I think, 70 years right now, which is, let’s say, roughly 130 years, something like this, 130, 120, 150 years depending upon how long the person lives, so well over 100 years even though initially they were about 14, 28 years, something like that.

00:26:31

Now, what kind of natural right expires after an arbitrary time set by Congress, 14 years, 20 year, even 100 years?  This is not how natural rights work.  You have a natural right to your body.  You can – you own your body as long as you live even if it’s 1000 years.  You own your home, and you can leave it to your descendants, and they can own it in perpetuity, same thing with other property like a car or a watch or money, etc.  So it’s clear that these rights were never viewed as natural rights.

00:27:04

Furthermore, as I quoted, the original clause in the Constitution is explicitly empirical and sort of wealth-maximization-based.  It says that to promote the progress of the sciences and the arts.  Now, some people argue that, unless there is proof available that shows that these laws actually do promote the progress of the science and the useful arts, then the law is unconstitutional.  I think that’s kind of a weak argument, although I like it.  I think that that’s more what we call precatory language.

00:27:36

I think it wasn’t a limitation on the power, but I’m all in favor of the argument that it was.  But in any case, it happens to be the case that there was no evidence at the time of the Constitution or at the time of the first patent and copyright laws enacted shortly after the Constitution was ratified in 1789.  There was no evidence at the time.  There was no empirical evidence whatsoever available that showed that patent and copyright law actually did lead to over – some kind of overall increase in innovation.  And in the 230-40 years since, there’s been no subsequent proof that unambiguously shows this either.

00:28:21

So if you basically view these things as monopolies granted by the state, as monopoly privileges, special privileges granted to certain people, which at least on their face impede competition, restrict property rights, etc., and they’re justified only insofar as they increase innovation, then you would think that the burden of proof would be on anyone who proposes these weird, temporary monopoly privileges, these sort of exceptional incursions into normal operations of the free market.

00:28:55

And because there’s no proof one way or the other – actually, there’s a lot of proof on our side.  There’s a lot of reason to believe that the patent and copyright system cause hundreds of billions of dollars of damage overall to innovation and creativity to the economy every year, and at the very least, gross distortion and lots of individual unjust acts like people going to jail or suffering hundreds of thousands of dollars in damages because of otherwise peaceful actions.

00:29:25

But my point is even if we couldn’t prove our side and they can’t prove their side, the question is who is the burden of proof on?  If you want to argue that a given policy, which invades private property rights at least facially, and that hampers competition, if you want to argue that that’s justified when it results in some kind of overall net innovative wealth benefit to society, the you need to show that it does.  And if you can’t show it, even if it’s because it’s impossible to show it for methodological reasons, which I think it is actually impossible to show it.

00:30:01

I think it’s impossible to show because of Rothbardian, Austrian methodological views.  I think you can never show that an act of coercion benefits society because if one party gains, the other party demonstrably loses because they had to be forced to comply.  But even if you overlook this, the point is there are no clear empirical studies even ignoring these other methodological problems.  There are no empirical studies demonstrating the utilitarian case.  In fact, all the studies that I’m aware of, they usually are either ambiguous.  They say, well, we just can’t tell.  Now, there’s a reason they can’t tell because you can’t add ordinal value.

00:30:47

You can’t add value between individuals.  It’s not intersubjectively comparable, and there’s other reasons for this too.  There’s knowledge problems.  There’s measurement problems.  So that’s one reason they can’t prove this, so some of these studies are ambiguous.  They say, well, we haven’t proved the case that IP is a good thing, or they will just say, listen, as far as we can tell, there is tens of millions or billions of dollars of damages being done by IP in this area.

00:31:13

So pretty much all the studies are against the utilitarian argument for IP, and you would think that if you are really a serious, sincere, honest, utilitarian, and if your argument for IP was really that you thought it did – it made us wealth overall, made everyone better off, then you would think that if you saw the results of these studies, you would say, hmm, I guess I was wrong, and you would withdraw your support, which leads me to believe that most people are not really serious that claim to be utilitarians.

00:31:46

They don’t really have any evidence.  They know they don’t have any evidence, and it’s just sort of a make-weight argument.  It’s not their real argument for IP.  Their real argument is something else.  It’s either intuitive or it’s conservative in the sense that they just know we have this system.  They don’t want to change anything, or special-interest related.  They are maybe an author themselves, or they – there is interests that have arguments on behalf of the movie and the music industry, etc.  And clearly they’re self-interested, and they have an interest in keeping the system alive, or you have the patent bar, for example, and patent attorneys like myself make a good deal of money off the system.

00:32:24

Of course, you’re going to just argue that of course it’s a good idea, etc.  But the bottom line is the utilitarian case has not been proven, so the constitutional argument falls on so many grounds.  It’s an appeal to authority.  It’s an appeal to legal positivism, that is, what someone else said, but it’s a just a committee of bureaucrats issuing edicts.  It’s an appeal to some kind of wealth-maximization criteria, which has not been proven by any kind of studies that are reliable, etc., so the case just falls on so many grounds.

00:32:58

And I’ll go to slide 29 in a second, but one final comment here is we shouldn’t be surprised by this because the – given the history of patent and copyright, they arose from historical attempts to censor, to establish monopoly privilege, and a type of protectionism.  So it’s no surprise that the modern outcome of these original systems is the same, maybe a little bit more sophisticated, a little bit more institutionalized, a little bit more de-personalized and fancier, but no different.  So we shouldn’t be surprised that modern copyright law still results in censorship as does patent, by the way, and that the patent system, which originated in protectionism and monopoly privilege still ends up protecting certain entrenched industry players from competition and helps establish monopolies.

00:33:54

It’s no surprise that when the state grants a legal monopoly dressed up in the form of a patent – and by the way, patents originated in England in what’s called the Statute of Monopolies.  It’s no surprise that when the state grants these monopolies that monopolistic practices and oligopolistic practices emerge from this.

00:34:16

Oh, I see on slide 29 here I’ve already mentioned some of this about Ayn Rand and eminent domain.  But Ayn Rand, if I recall correctly, and some of her supporters still do this, supported the practice of the state having the power or the authority to compel, number one, jury duty service, and also witnesses.  So if you’re a material witness in a case, civil or criminal, then under the current law, the government has the power to compel you by subpoena to appear and to give testimony, even if it’s dangerous to you like if you testify against the mafia or something like that.

00:34:56

They can force you to do this, and this is supported by the Sixth Amendment to the Constitution, by the way.  And also, of course, she believed that we have – the jury is a – the jury system is a good system.  She had some arguments there.  But that means she also believes the government has the right to compel you to become a juror even if you don’t want to perform.  So that’s another example of the perils of relying upon a legal – a positive legal document issued by the decree of basically a bunch of state actors, to rely upon that as an authority form, a standard of morality.  I think she’s wrong about that.  She’s wrong to rely upon them for anything.  We need to evaluate it.

00:35:40

Some parts of the American system, for example, are justified like a law against murder, but it’s not because the government says it’s wrong.  It’s because it is wrong.  The government just happens to be right here because they’ve co-opted something that is a natural rule that people would adopt without the government in the first place.

00:35:57

Okay, so – okay, I see earlier I talked about utilitarianism, and I did this before I had actually gotten to my slides on this.  I’d forgotten I hadn’t gotten to that yet, so I’m on slide 30 now.  Let me briefly go through the utilitarian argument on IP and why there are many problems with this argument.

00:36:18

So the basic utilitarian argument or the wealth-maximization argument, is the idea that we can adopt certain legal rules or laws or policies that will tweak sort of the baseline set of rules that we have, and it will shift what’s going on in society, shift behavior.  And it will make us all better off overall.  And even if on occasion a given person might be disadvantaged by the operation of a given law, overall a society is richer and theoretically – and this is Richard Epstein’s argument, by the way, in his Takings book.  Theoretically, you could compensate the people who are harmed with a surplus.

00:36:59

So, in other words, if you imagine society as having a pie of wealth of a certain size and everyone’s got a certain slice of it, different-sized slices, if we could adopt a law that will grow the overall size of the pie by a significant amount, even if you have to hurt one person to do that like taking someone’s land to make a road, for example, then the overall surplus in wealth that you generate, you could take a part of that, compensate the person you’ve expropriated.

00:37:31

So, for example, let’s say we want to build a highway system, and we think it will generate $100 billion worth of economic activity because we’ll have more traffic.  But you have to take the land of a thousand people to do this, and you have to pay them, let’s say, $10 billion to pay them back.  Well, if you get a 100 billion in increased value and you take 10 billion of that to compensate the people who have been expropriated, then they’re no worse off.

00:38:03

And society is worse off by $90 billion, and you can use that money to fund the government or to redistribute back to the people or whatever.  That’s Epstein’s idea.  Now, it suffers from a lot of problems, but that’s the basic idea also behind IP law.  The idea is that if we restrict people’s rights in a certain way, then we make certain activities more profitable like publishing books, making paintings, making movies, coming up with new, innovative, and inventive ideas, etc. because people can now use their monopolies that the state gives them to make a profit for 10 or 15 or 20 or whatever years and that, although some people are harmed a little bit, overall we’re made better off.  And so overall, this is a good idea.  In other words, the government can actually make us wealthier by shifting and adjusting and tinkering with the economy.

00:38:53

So the first problem with this idea is what’s called methodological.  It’s the Austrian – it’s based upon the Austrian idea, the idea of – the approach that Mises had, for example, to economics and value.  Mises recognized that value is not a substance.  It’s not a thing.  It’s not a quantity that you can measure.  Value is just what he called demonstrated in action.  So when you choose among different things you could aim at in a given limited amount of time with a limited amount of resources, you choose among a number of ends.  You choose to do A instead of B or C.  So when you choose a, the opportunity costs of that action would be B or C, which you could have done.  But all you show is that you value A more than B, but you don’t value it more in a numerical sense.

00:39:46

These are not numbers.  They’re orders.  Like you have your first preference would be number one, would be A.  Your second preferred thing would be two or B, but it wouldn’t be like you have 110% on A and 92% o B.  All we know is that, in action, you demonstrate the one thing that you prefer more than the others, so that’s the first idea.

00:40:06

The first idea is that all value is subjective.  That is, it’s the result of your subjective preferences.  It’s demonstrated in action.  It’s ordinal, and it’s not interpersonally comparable.  That is, you can’t say that person – John prefers an apple 2.2 times, and Sally prefers the apple 2.1 times.  Even if there’s a money price on an apple in a given market of a dollar an apple or $0.10 per apple, that doesn’t mean the apple is worth $0.10.  It only means that’s the result of the market’s interplay of all the subjective valuations resulting in a number, but it’s not a measure of the value that people put on the apple, as Mises explicitly says.

00:40:50

So the first problem with utilitarianism is that it wants to add up all the values people have and to choose legal policies that will somehow shift these values around and result in an overall sum total of utility to society that is greater than before.  So the first problem is that that’s not how value works.  It’s just not a number.  It’s not cardinal.  It’s only ordinal.  And, by the way, at Libertopia I had a long discussion with David Friedman about this who is a – more of a Chicago wealth-maximization type, and he believes that von Neumann proved that you could cardinalize value.  I don’t believe it.  I don’t buy it at all. [Update: see Robert Murphy’s devastating critique of Friedman’s contentions, at Why Austrians Stress Ordinal Utility.]

00:41:34

Even if you could, we go on to the next problem, which is ethical.  The ethical problem is that even if you could attach numbers somehow, objective cardinal numbers to value, that doesn’t mean that it is valid for – to transfer property from one person to the other.  So let’s take an example.  Let’s say that we could prove that Bill Gates values his marginal dollars of his top million dollars out of his billions of dollars.  He values each of those – each dollar in his top million dollars out of his $70 billion of wealth.  He values each one of those dollars less than a poor person values it and, of course, there’s arguments that this is actually false, that poor people value them even less than he does.  Otherwise, they would have worked to get them or whatever, but the point is the Austrian view is that there’s no numbers associated in the first place.  So these interpersonal comparisons are meaningless.

00:42:29

But let’s say that we assume that Bill Gates, if we take a dollar from Bill Gates and we give a dollar to a poor person that Bill Gates is harmed less by that act of theft than the poor person is benefited.  Well, this still doesn’t mean that it’s ethical to do it because it’s still an act of theft.  You could take the more extreme examples.  You could take cases where some person or group of people really desire to do something very, very horrible like murder or rape or kill someone else.

00:43:00

I mean let’s say there’s some person who expresses some religious view that is out of sync with the community, and it really offends everyone in the community.  So let’s say we have 100 people in the community who are so offended by this one heretic who recanted their religion or whatever.  I mean you could argue that if they stone the heretic to death, then the heretic suffers of course.

00:43:22

But they only suffer once, and they only suffer one human’s experience of death, whatever that is.  Let’s say it’s 100 negative utiles.  And let’s say every person in the crowd gets ten utiles of pleasure out of knowing they’ve vanquished this heretic.  So if you add up the sum, ten positive utiles per person for 100 or 1000 people, it’s much greater than the negative damage that they – the victim suffered.  It’s still not ethical according to libertarianism because you basically are violating someone’s rights, and you’re making those suffer when they’ve done nothing wrong.

00:43:55

So the first two hurdles that utilitarians have to face is this.  It is that, number one, there are methodological problems, and basically that’s the Austrian take on it.  And number two, there’s ethical problems.  But finally, even if we forget these two problems, there’s the empirical problem, and that is that, as I mentioned before, the numbers just do not show their case.  You would think that if you’re arguing for an intervention into the natural free market propertarian system on the grounds that it’s justified because it causes an increase in wealth that you would have some evidence, some kind of study, some kind of measurement, some kind of argument for what the – to prove that your patents and copyrights system actually does increase overall wealth.

00:44:47

So, for example, if you say we need a patent system to cause there to be more innovation, it’s a reasonable request for me to say, well, what would be the total value of innovation in a patent-free society?  What is the value of the innovation when we do have patents?  What’s the difference?  What’s the cost of the patent system, and how do you know these numbers?  Where did you get them from?  Instead, the advocates of the patent system, for example, never ever produce these numbers.

00:45:20

True, there have been some attempts to come up with some of these numbers, but as I mentioned, by all the people who study it, they pretty much conclude we have no way of proving this whatsoever.  Or they say it looks like to us this system is causing billions or tens of billions or even hundreds of billions of damage every year or whatever relevant period of time that there is.

00:45:41

So if you’ll go to slide 31 of my slides, which is entitled “Utilitarian Arguments for IP,” I’ve got a few quotes here.  You can read through them yourself.  So let’s just go through it.  Like I mentioned, the founders in 1789, when they put these clauses in the patent system, they didn’t do a lot of empirical studies first.  They just were putting in place in the Constitution the authority for Congress to continue what the European system had been doing for a couple of centuries in the name of censorship and monopoly privilege and protectionism.  They made it a little bit more institutionalized, but – so they didn’t really do a lot of studies, and of course, there weren’t a lot of sophisticated, modern, econometric, or empirical studies done by – in the, say, the next hundred years, in the 1800s.

00:46:28

In the 1900s, the 20^th century, people started looking into this.  There was actually lot of controversies.  Most economists used to believe that monopolies were a bad thing, which is the impetus behind the anti-trust law, etc., but they made an exception for these types of laws.  In any case, Fritz Machlup, who’s an Austrian economist who was commissioned by the Congress in the US in ‘50s to do a big study of this whole issue, in 1958, he concluded that “No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or loss on society.

00:47:07

The best he can do is to state assumptions and make guesses about the extent to which reality corresponds to these assumptions.”  And then he concludes, “If we did not have a patent system, it would be irresponsible on the basis of our present knowledge of its economic consequences to recommend instituting one.”  So what he’s saying is even 160 or so years after the original patent system, we have no reason to have a patent system.

00:47:35

Another economist named George Priest in 1986 says that “In the current state of knowledge—so this is 30 years after Fritz Machlup’s landmark congressional study.  George Priest says, “In the current state of knowledge, economists know almost nothing about the effect on social welfare of the patent system or of other systems of intellectual property.”

00:47:59

Okay, and maybe ten years, eight years ago, 2004, two French researchers concluded that “The abolition or preservation of intellectual property protection is not a purely theoretical question.  To decide on it from an economic viewpoint, we must be able to assess all the consequences of protection and determine whether the total favorable effects for society outweigh the total negative effects.  Unfortunately, this exercise is no more within our reach today than it was in Machlup’s day in the 1950s.”

00:48:40

So what they’re saying is even as – even in the 2000s, we still don’t have any reason to believe that IP contributes this net gain to society that its proponents say it does.  In 2008, just four years ago, two Boston University Law School professors and their economists as well, Michael Meurer and Jim Bessen, they concluded that on average, the patent system discouraged innovation.  They said, “it seems unlikely that patents today are an effective policy instrument to encourage innovation overall.”  And in fact, they said it seems clear that “patents place a drag on innovation” and that “the patent system fails on its own terms.”

00:49:21

Okay, and finally, in the paper that’s a draft working paper right now, it’s still a draft form by Boldrin and Levine, the authors of the landmark empirical anti-IP study against intellectual monopoly, not to be confused with my book, Against Intellectual Property.  My case is more principled and rights-based and based upon libertarian principles and propertarian principles.  Theirs is simply based upon examining the empirical arguments for it and showing why they all fail.  And in their recent study, they said that “The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity.”

00:50:04

And then they conclude that “there is strong evidence that patents have many negative consequences.”  So the point is that if you are really a serious utilitarian, if that was really your approach to policy, you would actually be against IP law because all the evidence is either inconclusive or pushes against it.

00:50:24

Okay, so let’s talk – but as we’re talking about numbers, let’s look at a few other things just to put these things in perspective.  Again, the main case against IP is that it infringes property rights and liberty, not the empirical case, but the empirical case itself for IP falls – can’t sustain itself.  On slide 36.  There was recent – I think that the IP defenders know that they’re on the ropes, and they’re trying to pull out every argument they can.

00:50:54

And they know there’s no good studies in favor of IP, so whenever something comes out, they try to color it as contributing – arguing for IP.  So there was a recent Commerce Department Patent Office study, and all the advocates of IP said that this study showed that intellectual property can attribute $5 trillion and 40 million jobs to the American economy I think every year.

00:51:21

Now, all they meant was that they looked at what part – how much of the United States economy, which I think is around $14 trillion a year in GDP, $14-15 trillion a year, how many of the industries that generate part of this GDP have aspects of their industry that are protected by IP.  And then they said, well, then IP contributes to that.  Well, there are, first of all, so many problems with this.  Number one, correlation is not causation.  Just because the computer industry or the car industry is affected by patent rights, for example, it doesn’t mean that patent rights are the cause of their prosperity.

00:52:05

It could be that it’s a neutral effect, or it could be that they’re successful despite it.  In fact, that’s my view.  I believe that the American industry – American economy would be much stronger without patent or copyright.  I think it’s strong despite intellectual property just like it’s strong or it’s prosperous to a certain degree despite taxes and wars and conscription and regulations and tariffs, etc.  So that’s the first thing.  And another example of the flaw of the study, the number-one intellectual property-intensive industry that was identified in the study was grocery stores.

00:52:49

Now, usually you would think of Apple or IBM or some high-tech or the movie industry as being more affected by IP law.  This just goes to show you that every industry is basically affected by IP law.  I mean grocery stores have food.  Food is made by companies that have patents on corn or genetic patents or trademarks on the brand names they use like Crest toothpaste, etc.  So this is supposed to be some kind of proof that patents and IP contributes trillions of dollars of gain.  It’s just not even a serious argument at all.

00:53:31

Okay, now, what’s the reality?  As I mentioned, there’s no studies that really show that it imposes any benefit on society.  My own estimate as a patent lawyer, as a libertarian, as an Austrian economics student working on this area for a long time, my estimate is that the patent system in the United States alone imposes at least $100 billion of net damage to the economy, probably far more.  My guess is probably far more.  I don’t think it’s possible to know these numbers exactly, but we do have some cost: patent lawsuits, research and development dollars that are diverted towards acquiring patents or defending against patents, reduced competition, etc.

00:54:17

There was also a fairly recent study done showing – it was talking about software patents only.  And the question is – the question was regarding software patents, which are fairly recent innovations.  They last 15, 20 years.  And a lot of people that want patent reform want us to get rid of software patents or patent trolls.  They are never principled of course.  They never look at the root issue.  They never strike at the root.  They never want to get rid of patents per se.  They always want to just nibble at the edges.

00:54:50

So their focus is on patent trolls and software patents.  So they say what would it take for the American software industry to comply with all the software patents out there and to avoid infringing each other’s patents?  And the study concludes with some numbers, and I have scaled them up for the whole industry because they were conservative numbers.  But based upon the study and my understanding of the industry and how the patent system works, the study basically would back up the idea that the software industry needs to hire six million patent attorneys and take almost $3 trillion per year just to examine, to take a look at, and be aware of all the patents out there and to change their products to avoid infringing them.

00:55:41

So we’re talking an industry that would have to hire six million patent attorneys and spend almost $3 trillion a year.  Now, this is an industry – let me go to slide 38 now.  I don’t have the number here.  I have it in my original post, which I have linked here about this, but basically just the revenues alone of the software industry are not anywhere near $2.7 trillion.

00:56:15

Just think about it.  That would be about one – I don’t know.  It would be about one-eighth of the entire US economy just from software.  And there’s only – I don’t know – 40-50,000 patent attorneys in the entire American legal system right now because you have to have an engineering degree and a law degree to be a patent attorney.  So you would have to multiply by tens or hundreds of times the number of patent attorneys and the budget spent – it would have to be more than even the revenue the software industry makes just to let them avoid infringing patents, which means it’s impossible to avoid infringing patents basically.  It’s just impossible.  So this is to put some perspective on – and this is just software patents.  If you scale this up to the entire patent system, we’re talking probably tens, maybe hundreds of trillions of dollars a year would have to be spent by everyone to avoid infringing patents.

00:57:10

Now, how can this be a real property right?  Regular property rights, they are very easy to avoid infringing.  You observe a physical, publicly available border, and you just don’t cross it, very simple.  This is not what patents are about.  There was a recent study that if Google, which owns YouTube I believe, were to prescreen all the YouTube videos to prevent any copyright-infringing videos, it would cost Google alone $37 billion a year.  Now, Google’s revenue last year, 2011, was $38 billion, revenue, not profit.  So in other words, it would take all of Google’s revenue to just make sure that YouTube is not having the wrong kinds of videos up.

00:57:55

Okay, so we have lots of huge, horrendous costs from the copyright system and the patent system.  Copyright is causing people to be jailed for uploading movies or extraditing foreign students to face federal prison fines in America for just having links on their website, which are legal in their own country like in Britain with the case of Richard Dwyer.  We’re having invasions with SWAT squads with 59 federal and other officers in other countries in the Megaupload case, ratcheting up the police state, choking back on internet freedom with attempts to – attempts like SOPA and PIPA, which have been defeated but only temporarily, the TPP, the Trans-Pacific Partnership, ACTA and other laws coming down the pike.

00:58:45

And if you go with this empirical mindset that we – the government is justified in passing laws to try to tweak incentives to maximize or to optimize or to at least increase valuable, innovative behavior, where is the stopping point when, number one, I mean we can always make the patent and copyright terms even longer?  Why stop at 17 years for patent and a hundred and X years for copyright?  Why not go to a million years?  Why stop at civil penalties in the case of patents or treble damages for patents and civil penalties and some jail fines for copyright?  Why not go to ten times penalties for patents or public executions?

00:59:35

Why not – how about public torture?  I mean there’s no limit to what you could do to try to increase these incentives to make the holding of these monopoly privilege rights more valuable to give a higher profit opportunity to the innovators so they would come up with even more innovations that they’re not coming up with now because they can’t make enough money.  And what if having a monopoly by the government, even if it’s very strongly enforced, even if the penalties are draconian, what if that monopoly right is just not enough?

01:00:05

What if there’s a life-saving drug that a large pharmaceutical company could come up with, but even the prospect of monopoly sales for 50 years, monopoly-priced sales of the drug, what if that’s not enough to make it up?  Well, hell, there’s a drug there that we could be making that we could be benefiting from.  So why not take some money from the taxpayers and give it to these companies to give them a little bit more cushion, give them a little bit more ability to engage in research and development?

01:00:38

Apparently, the only goal of public policy is to just keep increasing the amount of innovation and creativity so – and the cost is irrelevant since people that promote IP and patents don’t care about the cost and don’t have any idea about what the cost is.  They don’t take it into account in their arguments, so what would be their opposition to having a taxpayer-funded, say, prize system?  Well, it turns out that they don’t oppose this actually.  In fact, I think I mentioned it earlier in the first part of the talk.

01:01:13

Nobel Prize winners like Stiglitz, socialist – the Vermont senator, Bernie Sanders have proposed, and this has been endorsed by a quasi-libertarian.  I don’t know, quasi-Austrian, Alexander Tabarrok, they say that they would like to either augment or replace the United States patent system with this prize system.  And they were talking about medical innovations only.  So what they said was for medical innovations, it would be reasonable – I don’t know how they get these numbers – but to have $80 billion a year of prizes, that is, taxpayer dollars, that some government-appointed committee of scientific experts can dole out.

01:01:56

It’s like an American taxpayer-funded, huge, huge Nobel Prize award except – so instead of giving patents or maybe in addition to giving patents or maybe in addition to giving somewhat weaker patents – who knows what they’re in favor of – every year the government would announce here’s our 5,000 award winners or 10,000 award winners.  And they would hand out checks ranging from, I don’t know, $1000 to a $1 billion or whatever.  They’ve got to get rid of this $80 billion, and they’re doing that to incentivize people.

01:02:28

You figure if you engage in some heroic research, then the government is going to recognize your work and give you an award for it.  I mean the idea is so ludicrous and so un-libertarian, but at least it’s honest.  But if you think about it, they’re talking only about medical innovations.  That’s only one narrow sliver of the entire innovation space that the patent system, for example, covers.  The patent system covers genetics and chemical and electrical and software and computer and hardware and lasers and mechanical devices and watches and any number of types of technology.

01:03:08

So if you were going to be consistent, then you value all types of innovation.  You would need to have the prize system ratcheted up to cover all types of innovation, not just medical devices.  So this is – we’re talking tens of trillions of dollars a year.  Now, we have an economy of $14-15 trillion a year in the US, the richest on the planet.  Even if we expropriate 90% of our wealth every year and use it all on innovation prizes, we have $10-12 trillion.  That’s not – even that’s not enough.  The idea is literally insane and obscene I would say.

01:03:46

Okay, enough on that.  Let’s go to slide 39.  So here’s another argument I’ve heard before, and I’ve been at small companies, general counsel at a small high-tech company for awhile.  And I’ve dealt with venture capitalists, people who invest money in these small companies.  So what they do is they will – they’ll look at your business plan.  They’ll look at your sales.  They’ll look at your potential customers, your products, and they’ll look at everything.  They’ll look at your numbers.  They’ll look at your employees.  They’ll look at your intellectual property.  So the argument is that, well, without intellectual property, venture capital won’t invest in companies.

01:04:23

Now, there is a little bit something to this argument, and that is in today’s society, a VC is not going to invest in a company that’s a high-tech company that hasn’t done their homework and gotten the right amount of patents.  In other words, who isn’t playing ball and playing the game as it’s supposed to be played?  But this is – doesn’t mean that there should be a patent system.  It only means that, if there’s a patent system, then it causes certain behaviors.

01:04:48

It gives rise to certain behaviors.  It gives rise to the risk, number one, of being sued for patents, and it gives rise to the need to have a potential defense in the form of having patents.  This is why these companies waste millions of dollars every year on patent attorney salaries and patent office fees, etc. or on buyouts of other companies’ patent portfolios to increase their patent holdings.  Sometimes they’re doing it to get weapons to use for aggressive reasons like patent trolls do or like larger companies like Apple do.  Sometimes they’re doing it for defensive reasons, and that’s usually the reason.

01:05:24

You want to have – it’s called sometimes the porcupine defense, like you want to imagine you have a bunch of quills or weapons on you that are defensive and that your big competitors know that if they sue you for infringing their patents, you can sue them back for infringing your patents.  Well, you can only do that if you have a big arsenal of patents, which is too expensive for them to take time to dig through.  They just assume if you have a big stack of patents, there might be something in there that they’re infringing if you’re in the same sort of technical space.  So that’s why these companies acquire these patents.  It’s almost like the nuclear weapon – the Cold War – during the Cold War time that the USSR and the United States both acquiring thousands of nuclear weapons only to dissuade the other side from firing first at you.

01:06:14

Of course, what this does is this causes the large companies to either not sue each other in the first place because they’re afraid, so they just compete, or if they sue each other, they finally settle, and one pays the other a few billion dollars in royalties, and then they go back to business.  They just raise their prices because they don’t have any competition from the outside, outside these few small, large companies with the big patent arsenals because the smaller companies can’t compete.  They can’t compete because they’ll get sued for patent infringement.  They get sued for patent infringement because the big companies like Apple and Microsoft know that they’re not going to get sued back.

01:06:53

They’re not going to get sued back because the small companies haven’t had time and money to acquire a big patent arsenal themselves, or they can’t even afford the $3 million, $5 million they need to pay lawyers just to defend themselves in a patent lawsuit.  So basically the patent system gives rise to these small number of players in an oligopolized or even monopolized industry.  There’s lower competition, higher prices partly because the prices of all the patent acquisitions and patent lawsuits and the royalties that they pay each other are passed onto the consumers.

01:07:26

Consumers can’t go to the smaller players because the smaller players don’t exist.  They don’t exist because they can’t compete, so this is one big problem with this whole argument.  So the whole VC idea is just a ridiculous argument.  You know, given the fact of the drug laws, a VC is not going to invest in a company run by someone who is selling cocaine openly because they’re going to be arrested.  That doesn’t mean that cocaine laws are justified.

01:07:54

What about tax laws?  If there’s a notorious and open income tax cheat like Peter Schiff or someone – not Peter Schiff, sorry, his father, Irwin Schiff.  He’s not going to – a VC is not going to want to deal with that.  They’re not going to invest in them because they know the guys is about to get arrested maybe.  That doesn’t mean income tax law is justified.  It just means that VCs are rational, and they respond to the effects of these laws.  It doesn’t mean the laws are justified at all.  And, in fact, my view is that in a patent-free society, it would be at least as easy if not easier to get a venture capitalist to invest in you because now the VC knows that the risk of your small company being sued for patent infringement is zero.

01:08:43

That’s a huge risk that small companies face now, small start-up companies.  In fact, it’s a common technique for the established companies to observe a small competitor, a small startup, about – becoming more and more successful.  And when they file – they start filing the papers for their IPO, their initial public offering, right before they go public, they’ll get slapped with a lawsuit, a patent infringement lawsuit.

01:09:12

Now, why do they do it?  They time it like this on purpose because they know that it’s going to delay or maybe ruin or reduce the success of the IPO.  So they hit them with these lawsuits last minute, and that’s why, if you look at the prospectuses of all these companies that are small companies that are filing their IPO statement, they always have these big sections saying we can’t know that we’re not infringing on anyone’s patents.

01:09:38

There’s always a danger that we’ll get sued for patent infringement.  In fact, there’s a danger we’ll get sued for patent infringement ten days before we’re going to price our IPO, and that’s quite often what happens.  So without that risk – and look, seriously, a lot of these companies, even if they’re successful, a lot of small companies don’t have $3-10 million of cash sitting in the bank.  They’re lucky if they’re paying their suppliers.  Even if they’re profitable, they’re trying to expand.

01:10:04

So if they get sued for patent infringement, even if they’re in the right under the law, they don’t have $3 million or a million or $5 million to take a gamble on a patent lawsuit to defend themselves when it’s up to a jury who doesn’t know much about technology and who’s interpreting vague, ambiguous, hyper-technical, weird, arbitrary legal standards in the patent law.  I mean they might lose even if they’re in the right.  And even if they don’t lose, they’ve lost $3 million, and they won’t be able to keep going on.  So they cave in of course, or more likely, they don’t get engaged in this business in the first place.

01:10:43

This is what Hazlitt or Bastiat would talk about, the seen and the unseen.  There are lots of marginal small businesses that just don’t exist now that would exist if they weren’t afraid of the terrible, damaging effect of the threat of a patent lawsuit.  Just think of the smartphone space right now, which is dominated by, say, Samsung and even Android, Google, and Apple and Microsoft maybe to some degree.  Some small company who wants to innovate in this area, there’s almost no doubt they would be sued into oblivion by some of these players.  So there’s no wonder there’s not a lot of small companies selling smartphones.

01:11:22

Okay, let’s go on to slide 40.  Here’s one of my favorites, which I’ve been dealing with a lot lately.  The slide is entitled “Questions as Arguments.”  So the important thing to point out here is to let people know and to be aware of the fact that having a question is fine.  You can have questions.  You can ask questions, but questions are not arguments.  Now, what do I mean by this?  What I mean is I will come up with an argument like I’ve done here that patents and copyrights are unjustified for the following reasons, for whatever reasons.  And the implication of that, of course, is that we should get rid of patent and copyright.

01:12:07

Now, instead of saying, well, here’s what I disagree with or here’s a mistake in your argument, I will often hear someone respond with, but how would people make money in an IP-free world, or, but how would – or, sorry – but what is the incentive of someone to come up with a new software product or write a new book if there’s no IP?  Now, they ask it like they’re asking a question, but they’re not asking a question because a question is not an argument.  It’s just literally not an argument.  But they’re responding to an argument with a question as if it’s an argument.  So what’s going on here is that they’re implicitly saying this.  They’re implicitly saying I think that the purpose of law is to tweak incentives to make sure we have certain social goals achieved to a desirable level.

01:13:08

And I think it’s possible for the government to do this, and that’s what makes law justified.  Now, they don’t want to say that because they don’t really think in those coherent terms.  If they did, they’d probably be libertarian instead of utilitarians, and they don’t put it that way because if they did it would be – it would make it clear that they need to come up with a whole argument about social theory and legal theory and this is how laws are justified, and they don’t want to do that either.  So they want to sort of just assume that we all agree with these kind of common assumptions a lot of people share.

01:13:36

So that’s the first problem.  And then they would have to – so what they’re really saying is if you don’t answer my question adequately, then it means your argument is wrong.  Now, that’s just a bad argument, so I never answer these questions unless I first establish it’s fine to be curious.  It’s fine to wonder what a future free world would look like.  But we need to establish right now that it’s not incumbent on me to predict that or to satisfy you that my predictions are accurate.  And it’s not incumbent on me to even be able to predict it to know what laws are wrong or right.

01:14:15

So on slide 40 here, as I mentioned, imagine the USSR under communism in the ‘70s or ‘80s.  Let’s say you made the standard arguments that communism is evil.  It’s uneconomic, it’s a bad idea, and we should abolish it.  We should allow private property and freedom.  It wouldn’t be a rebuttal argument for someone to say, but how many types of toothpaste would there be in a free market?  Even if we don’t know what the answer is, even if there was no other private economies of the world to look at to get some idea, even if the whole world was communist and we had no idea what the toothpaste market would look like if we freed up things, that doesn’t mean that we have to keep communism until we know these things.

01:15:01

Sometimes the only way to know is to free things up and see what happens.  And another example would be slavery in the south or slavery in Ancient Greece, etc., slavery in the antebellum US.  Someone proposing abolition of slavery could have been met and probably was met with questions like, if we get rid of slavery, who’s going to pick the cotton?  I mean it seems like a – almost a joke now, but that probably was a real question because the slaves actually did pick the cotton, and a lot of the industry at least in the south was plantation-based and farm-based and cotton-based.  So who would pick the cotton?  I don’t know.  Maybe no one would pick the cotton.  Maybe cotton wouldn’t be a viable industry without slavery or maybe…

01:15:54

But the point is if you make an argument against a given practice and argue for freeing people’s lives up and say you argue against slavery and someone says, but who would pick the cotton, that question is literally not an argument.  We have to recognize the same thing is true for intellectual property.  When people have questions about what a free society would look like, what a real free economy would look like, free of these government monopoly privilege in shackles, that’s fine that they have questions.  But they have to recognize that their questions are not arguments to keep the current system unless you basically are the ultimate conservative, which in a way, Fritz Machlup was.

01:16:39

Remember I quoted Fritz Machlup earlier.  Let me see if I can find this quote here.  I don’t see it on slide 40 or 41, but the earlier quote by Machlup was that if we didn’t have a patent system, the current economic knowledge that we have wouldn’t justify putting one in place.  But he also said that we also don’t know enough to get rid of it.  If we have a patent system, we don’t have enough knowledge to know that we should get rid of it.

01:17:07

Now, to me that argument makes no sense whatsoever.  It’s basically retreating to conservativism, like whatever laws we have in place, we should keep unless we have a good reason to change.  Now, I might agree with that for certain social practices and traditions.  You could make an argument for that but not for artificial laws decreed by the Congress, a bunch of bureaucrats and politicians.

01:17:28

Okay, I’m on slide 42 now.  Here’s another argument I’ve heard.  Advocates of IP, especially authors and others, they get really upset when people say they’re against IP.  Now, I don’t know why they’re upset in the first place because they won.  They have an IP system in place.  They are forcing us to comply with their IP system.  They have their copyright.  They have their patents.  It doesn’t look like they’re going away any time soon.  So they’re upset that other people disagree with them even though they are forced to go along with it.

01:17:59

I would much rather switch places with them.  I would be happy to have no patent or copyright and have a couple of socialist, fascist people griping about it on the sidelines.  I would be so happy to have – switch places.  I would let them gripe about it to their heart’s content.  But in any case, they’ll make this argument.  They’ll say, oh, all these young kids now, they just want something for free.  Now what kind of argument is that?  First of all, it’s – I don’t think it’s honest and right.  Maybe there’s a lot of young people who want something for free.

01:18:31

Everyone wants something for a smaller price.  That’s why there’s Kmart and Walmart and grocery stores that advertise they have the lowest prices because people bargain shop.  They want something for the lowest price possible.  That’s called economic action.  There’s nothing wrong with trying to achieve something for the lowest cost.  That’s called economizing action or efficiency.  But it also disparages the motives of, say, the bulk of people that are pirating.

01:18:59

But what it does is it just changes the subject.  It assumes that they’re doing something wrong and then goes on to address their low motives, which is merely material or crass or materialistic or profiteer.  People just want to reduce their bottom line, and that’s not a good motive to do something wrong.  Well, that presupposes that it’s wrong in the first place, so it’s just a bad argument.

01:19:21

And most advocates of IP, people like me, are not going around pirating.  Some of us are successful and we have money and we – I’m happy to pay iTunes for a song.  I don’t care.  I’d rather it be a lower price, and I think it would be a lower price in a free society.  Maybe it would be a penny a song, maybe a tenth of a penny a song, maybe a nickel a song.  It wouldn’t be a dollar a song, and I wouldn’t have a DRM restriction, and it wouldn’t be a license.  It would be a real sale.

01:19:47

But in any case, I’m happy to pay six bucks for a movie on iTunes, not just me.  But the point is people that have a serious, sincere argument to make, they are generally – there’s no reason to assume they are making this argument just to – just for economic self-interested reasons.  I mean it’s not likely we’re going to get rid of the IP system any time soon.  We’re making these arguments because we think they’re right.

01:20:15

And in fact, in my case, for example, I’m a patent attorney.  I practice it for a living.  It’s really not in my narrow economic self-interest to let the world know that I believe that the patent system should be abolished.  I mean 99% of my fellow patent lawyers hate this idea.  It doesn’t – when they hear it, they’re not really happy about it.  It doesn’t help me in my career.  So not that that makes my argument stronger, but the point is the argument that people just want something for free is not an argument they shouldn’t be free.

01:20:48

Another thing you can think about is – I think I might have mentioned this earlier in part one of this talk is that, in human life, there are two aspects of successful action.  That is, the actor has to have knowledge, knowledge that informs him as to what ends are possible, and knowledge as to what causal laws there are in the world that lets him choose available means, scarce means, that will help him causally achieve his end.  So you have to have knowledge, and you have to have means.  You have to have actual physical control, causal control over these means to help you achieve what you want.

01:21:30

And the scarce means of action are scarce.  There’s only so many of them to go around.  That’s the way the world is.  The free market heroically despite this is always seeking to increase abundance.  Even though we don’t have infinite abundance, the free market is trying to increase abundance, trying to always find more efficient means of producing goods, lowering costs, increasing abundance, basically making things in a sense less scarce even though we’ll never get away from that completely.

01:22:03

So the market is trying to overcome this challenge that we have, which is that there’s scarcity in the physical world.  There’s lack of super abundance.  The free market tries to make things more abundant, but that’s one ingredient of action.  That’s having available these things that we need to achieve our ends.

01:22:23

But the knowledge luckily is already non-scarce.  Knowledge can be multiplied or copied infinitely.  Everyone in the world can know how to bake a cake at the same time.  That’s why we have an increasing body of human knowledge every generation because the more things people learn, the more it’s recorded and transmitted, learned by others down the ages.  We have this almost infinitely duplicable body of knowledge that we can dip into and use, and the more of it, the better.  So the free market tries to overcome the problem of scarcity in the physical world, and the law tries to impose scarcity on knowledge, which is already non-scarce, so it’s sort of a complete perversion.

01:23:11

01:23:15

Here’s another one, slide 43.  Well, the people that are against patent and copyright, the IP abolitionists, the only reason they’re for that is because they’ve never created anything themselves.  So it’s another sort of ad hominem argument, you saying that you’re not self-interested.  You don’t want there to be patents because you wouldn’t benefit from them anyway.   I mean I’ve had this argument with people before, and I’ve said before, well, I don’t know what to tell you.

01:23:43

I mean I’m a patent attorney.  I’ve made a lot of money by being a successful patent attorney, and I’ve also been an author, and I’ve written some things for free like scholarly publications, which also can’t be explained by their theories.  Why would all these scholars and thinkers and bloggers, commenters on blogs, why would they waste time writing if they’re not getting paid for it?  They do it anyway.  Anyway – and I’ve written a lot of things for a lot of money as well, legal publications for some major commercial legal publishers.  I’ve gotten paid lots of money over the last decade or two, which is basically a refutation of their idea that someone who is vested in the system wouldn’t be against it, or on the other hand, someone who’s not vested in the system has no reason to favor it.

01:24:30

And so when I point out, well, you say that the only reason you have to oppose the system is – or the copyright system is because you have nothing to contribute that would be of any value anyway.  And I say, well, that’s just – in my case, for example, it’s false.  I’ve made lots of money off of selling books that are copyrighted.  And then they’ll say, well, then you’re just a hypocrite.  So in other words, you can’t win.  There’s nothing you can say to satisfy these people.  Either you’re a completely creator-less loser who has no reason to want there to be a patent system or a copyright system, or if you actually are successful like they say is important and you’re still against the copyright system, then you’re a hypocrite.

01:25:12

So in other words, they’re the ultimate conservatives.  If there’s a law in place and you benefit from it, even if you don’t want to benefit from it, then you oppose it, then you’re a hypocrite.  I don’t know how we’re supposed to ever have any law overturned ever if anyone who’s at all affected by it can’t speak out against it.  I mean this is the same argument used against blacks who are against affirmative action, let’s say.  So one argument against affirmative action is that it tars – it makes – it gives blacks who would normally be successful a bad reputation because the whites in the work place assume that the black is only successful because he’s benefited from affirmative action.  So that’s one of the arguments conservatives and some libertarians use against affirmative action, and the left says, well, that’s not true of course.  They deny this effect.

01:26:07

And on the other hand, whenever a black comes out against affirmative action, the liberal will then make that assumption and say, well, how dare he oppose a system that benefited him?  So which way is it?  And are you saying that if some statist, coercive government program confers some narrow benefit on you, even if it’s manifestly unjust, that you are – that you’re prevented from objecting to it so you’re forced to comply with the system, and now you’re prevented from arguing against it?  I mean what about slavery?  What if you are, I don’t know, the son of a slaveholder in the south and you know slavery is immoral?  Can you not argue against slavery because you were educated or raised by a family that had money from the slavery industry?  I mean the argument is just completely dishonest and incoherent.

01:27:00

All right, let’s go to slide 44.  Okay, this slide – well, this is more of the same.  They’ll say something like you say you’re against patents, but you’re a patent lawyer.  I don’t know what this argument is supposed to mean.  First of all, it’s personal.  It’s directed against me, Stephan Kinsella, as a person.  And I can guarantee I don’t have the metaphysical ability to change the moral status of different rules or propositions in the universe.  Whether I was born or not, whether I have an opinion one way or the other or not doesn’t affect whether or not patent law is valid.  Even if I’m a hypocrite doesn’t mean patent law is valid or that it’s not valid.  It’s either valid or invalid or legitimate or illegitimate, just or unjust on its own terms.

01:27:51

And second of all, it’s just a weird argument.  It would be like saying that a cancer doctor, an oncologist, is hypocritical for opposing cancer because, after all, he profits.  Maybe he makes hundreds of thousands of dollars a year as a successful cancer doctor.  He profits from some evil that he wishes wouldn’t exist, or a defense lawyer who defends people who are accused of income tax evasion or, let’s say, violating the narcotics laws.  Let’s say he’s a libertarian.  Can I be a libertarian and defend people from the state trying to put them in jail for doing something that’s a victimless crime?  Does it mean I’m a hypocrite because in my ideal society I would have – I wouldn’t have this job?  This job wouldn’t exist?  No.  It means that, given the existence of an enemy to people, given the existence of the state, there is a need for people to navigate the system and to defend themselves from it.

01:28:56

And it’s unfortunate that money is wasted and has to be wasted on certain people.  It’s unfortunate that I have to hire a patrol company to patrol my house to stop robbers.  It’s unfortunate I have to lock my front door all the time and have sophisticated locks on my house and have an alarm system in my car.  It’s a waste.  It’s made necessarily by the possibility and likelihood and existence of crime, which we all wish wouldn’t exist.  That doesn’t mean that car alarm companies and locks, people that sell locks, are hypocritical for selling these locks even if they say they’re against crime too.  So this is yet again another bad argument.

01:29:37

I’m on slide 44.  Let’s go to slide – oh, this is another good one, slide 45.  So I’ve had this happen before.  I’ll have someone – and this is not really a serious argument.  I’ve seen them do this many times.  It’s kind of a smart-ass argument.  What they’ll say is they’ll say, oh, well, if you’re against IP, how about if I just take your articles and sell them for millions of dollars?  Now, again, it’s not even really a real question.  It’s more of a rhetorical question, but it’s a smart-ass question.  But as I noted earlier, a question is not an argument.  But it’s not even really a serious question.  It’s not even an argument.  It’s not even a serious proposal.

01:30:16

They don’t really want to take or copy my article and sell it.  They don’t really think they can take one of my articles that’s free online.  They don’t really think they can sell it for a million dollars.  They probably don’t think they can sell it for anything at all.  And sometimes I say, fine.  Go ahead and do it.  And then they shut up and they change the subject, so they’re not serious at all about this.

01:30:43

The other problem with this argument is they – what they often do in this kind of argument is they’ll say, well, what if I take your article and I change the name, and I put my name on it?  I’m plagiarizing.  I mean what am I supposed to say to that?  Well, then you’re going to look like an idiot for lying to people.  I don’t know how they think you’re supposed to get along as a society if you have a reputation for being dishonest.  This mistake is made quite often in arguments for IP.  You’ll have people say, well, if you’re against – if you’re for IP law being abolished, if you’re not for IP law, you must be in favor of plagiarism.

01:31:22

Now, this argument is completely false and disingenuous for many reasons.  Number one, again, I don’t think they’re serious about it because if you really know the difference between types of IP like copyright and patent and you know what plagiarism is, then you know there’s almost no relation between them.  And if you don’t know, then you shouldn’t be arguing until you figure this stuff out.  But in fact, plagiarism has almost nothing to do with copyright or patent and wouldn’t be a real problem in a free society in the first place.

01:31:53

So as an example, I can take – plagiarism just means being dishonest about who the author of something is or not crediting your sources, which is more of a scholarly rule than a copying rule.  So for example, I could take one of Aristotle’s books, and I could publish it on Amazon tomorrow, self-publish it, and put my name on there.  Now, that is literally plagiarism, and it’s not a copyright violation because Aristotle’s works are in the public domain.  No one would buy it.  I would look like an idiot, and it doesn’t need any kind of law to police that.

01:32:31

At best, it would be a type of fraud on my customers because if they think they’re buying a new work called Nicomachean Ethics and they’re not, then I’ve defrauded them, but fraud law is there to cover that already.  And on the other hand, most aspects of copyright infringement have nothing to do with plagiarism.  For example, if I take the latest Transformers movie and I make a copy and I put it online and I either put it online for free or I sell it, I’m not going to put my name on it.

01:33:03

I’m not going to say this is Stephan Kinsella’s Transformers.  Why would I do that?  Because no one is going to download it then.  They’re going to think I’ve messed with it or I’ve tampered with it or it’s a joke.  No.  People want the original Transformers by Michael Bey or whoever is in charge of it.  They want the movie.  That’s why I put it online.  That’s why I sell it.  That’s why pirated copies are desirable because they’re a duplicate or a close duplicate of the original.  So most copyright infringement wouldn’t be plagiarism, and most plagiarism wouldn’t be copyright infringement, or it doesn’t necessarily involve it.  So they have really nothing to do with each other.  So the reason that the IP proponents bring this up is they’re trying – they know plagiarism is a little bit dishonest or usually a contract breach like at a university or something.  So there’s something about being a plagiarist, so they’re trying to associate dishonesty and shadiness of plagiarism with competing in the free market and copying and sharing and learning information, which have nothing to do with each other.

01:34:06

Okay, slide 47.  Let’s get back to – a little bit to the discussion about a utilitarianism and wealth maximization.  So quite often the proponents of IP will say something kind of extreme and hyperbolic like without patents and without copyright, there would be no new art, novels, movies, no new inventions ever created again.  Now, if they were right, then a lot of people would have pause.  They would go, oh, we can’t live without future innovations and future discovery of knowledge and future creative works being made.  But of course there’s no evidence whatsoever for this contention at all, and in fact, it’s completely implausible.

01:34:57

Even if they’re right that there would be less innovation, they could not argue there would be none.  Even if we stopped copyright and patent tomorrow, some companies would still innovate and some scientists would still do research.  Some artists would still write.  In fact, most people research, write, and innovate today with little or no financial payment anyway, so you would still have some.  So really their argument is that we wouldn’t have enough or that we would have less.  But so what they’re saying is that in a patent-free world, let’s say, we have level X innovation.  And in a world with patents, we have X plus Y, and more innovation is better.  Having extra Y innovation is better.

01:35:41

But the problem with this argument is that, first of all, they have no proof that there is a Y that’s positive.  Maybe Y is negative actually.  Maybe patents skew and distort innovation and reduce innovation, which I actually think it does.  But even if Y is positive, how do we know that it’s worth it?  In other words, the patent system has a cost.  Let’s say it costs Z.  Now, is Y greater than Z or is Z greater than Y?  They don’t know.  They have no idea what these numbers are.

01:36:09

In fact, they have no – they don’t even make an argument about what the numbers are.  They just make the hypothetical case.  They assume that we’re all going to agree that there is going to be a Z, that the Z – I’m sorry, that there’s going to be a Y.  But the Y is going to be positive and more innovation is always better.  And they assume that the Z is zero.

01:36:25

They assume there’s basically a trivial or negligible cost of the patent system even though a recent report that just came out shows that the top tech companies like Apple, etc. spent more money last year on defending or acquiring patents than they did on research and development in their own companies.  I don’t know the numbers, but let’s say it’s $10 billion of R&D for Apple and $15 billion for patent acquisition.  Now, I don’t know how anyone can believe that the $15 billion that was spent on patents, some of that couldn’t have gone to more R&D or at least been returned to their – to the public in the form of lower prices or to the shareholders in the form of higher dividends or higher share price, etc.  And then that extra money in the hands of consumers or shareholders could have been used for something productive and maybe more R&, maybe more economic activity, etc.

01:37:18

The point is there’s no way you can argue that this money is not a diversion from the overall amount of R&D or human prosperity and satisfaction that we enjoy at all.  And on slide 47, this – I mentioned Alexander Tabarrok earlier.  He’s a free market guy, but he’s not anti-IP.  He wants to reform IP, and he had this recent post called “Patent Policy on the Back of a Napkin.”  And he sort of drew like a Laffer curve, which is like a bell-shaped curve, which shows the relationship in his mind and in the mind of most people who favor IP, the relationship between the strength of patents and the amount of innovation we get.

01:38:03

And his idea is the curve starts at some non-zero number on the left side, goes up to a peak, and goes down.  And the idea is that if you have no patent system you have some innovation, but if you have a patent system you can increase the amount of innovation.  But then if you make the patents too strong, then you start suppressing innovation, and we’re past that point, so we should reduce the patent strength.  I guess that means the patent term from 17 roughly years to, I don’t know, five or whatever or ten.  Then we get closer to this optimal.  Now, he has no reason whatsoever for thinking the shape of the curve is a bell curve.  And even if it was, he’s not taking patent cost into account because the patent strength comes with the cost.

01:38:46

So even if you have a patent system and it increases the amount of innovation, the value of that extra innovation might be less than the cost that the patent system opposes on the economy as a whole.  In fact, I think it is.  But I don’t think it actually increases net innovation at all.  I think it actually decreases innovation and distorts the market.  I think the line would be sloping downwards.  You have innovation, and the more patents you have, the worse everything gets.  So the lower you make patent strength, the better off you are.  You don’t have to go to this optimum peak he points to.  You go all the way down to zero.  And unless they have an argument otherwise, that is the default position.

01:39:27

Another argument is that you just can’t make money without IP.  This is completely false.  There’s lots of ways you can make money.  Kickstarter is around now.  Lots of other ideas will no doubt come about in the future.  There are videogame companies.  There are recording artists.  There are documentary makers who are getting funding for their projects through Kickstarter and other projects.  I – the thing is everyone has to be an entrepreneur and is an entrepreneur, and you have to realize that in a world of competition, you have to face competition.  And you have to be aware of that and try to come up with mechanisms and ways and practices where you can make a profit or achieve your goals.

01:40:09

And if that’s in the face of people being able to easily compete with you by copying what you’ve done, either identically or by improving it or tweaking it, then that’s the world we face.  I was listening to a podcast with two economists, and they were talking about J.K. Rowling, the author of the Harry Potter books, and she’s worth about a billion dollars now because of all the money she’s made off of her books and the franchising of her books and the movies based upon her books.

01:40:42

Now, I believe that in a free market, she probably wouldn’t be worth a billion dollars for writing seven books.  But it’s easy to see how she could be worth tens of millions.  So let’s say she writes the first book, which she did as a labor of love, which is how most such books have to get made in the first place, not for money.  And she sells it on Amazon as a self-published Kindle book or something like that.  Let’s say she makes $100,000.

01:41:08

And soon the profits go down because there’s pirated copies, which are legitimate everywhere, but the pirated copies actually give her more fans, so she has a large number of fans because the books are great.  And she has even more fans because everyone – even more people can get them than could the first time she sold the books in the real world because the price was too high for some people.  So she probably has even more fans than she otherwise would have.  So anyway, she has a lot of fans.

01:41:33

She made some money.  She publishes a second book and becomes even more of a bigger phenomena.  At a certain point in time, she sketches out all seven books, and she says, you know, to all my fans out there, I’ve got book number four written, and as soon as I get a million people agree to pay $10 each for this book, I’ll release it to the world.  Well, I guarantee she’s going to get a million people that are going to salivate at the prospect of getting this book.  So she makes $10 million right there, and then she can repeat this and maybe in escalating terms with each book.

01:42:07

And then when the movie – and people start making movies of her books.  Let’s say someone makes a movie of her first book, which they won’t need her permission to do.  You could have five movies made in the same year based upon her book.  It’s a free market.  She can’t stop it because there’s no copyright let’s say in a copyright-free world, but what she could do is she could get a phone call from one of the producers who says we’re planning to make a movie based upon your book, and if you will cooperate with us on developing the script and say that it’s authorized, promote it to your fans, tell them this is the authorized version, we think we’ll get twice the ticket sales of our competitors because all your fans are going to want to see the movie that’s blessed by you because it will probably be better, and they’ll believe it’s going to be better, and they’ll think it’s more authorized and legitimate.

01:42:56

We’ll give you, I don’t know, 5% of the ticket sales.  So there’s another $10-20 million, whatever.  I mean there’s lots of ways, or maybe someone writes a smaller novel, and it helps them to land a job teaching literature at the local college because they have a reputation now.  There’s just so many ways you can profit from your activities.  It’s just not the government’s job to figure that out for you.

01:43:21

01:43:25

Here’s another one, slide 49, identity theft.  So some people would say, well, without IP, then what’s to keep you from just using your name and stealing money in your bank account or whatever?  Well, you don’t really need IP for this.  Let’s – now, this story is complicated in today’s world because money is not a tangible, physically ownable thing because the government has corrupted it.  So let’s assume that we have world where there’s honest gold money and everyone has, say – I have a certain amount of gold coins stored in a bank, which I pay a hosting fee for.

01:44:03

And I have a warehouse receipt, or I have some kind of identification key that allows me to access and transfer the ownership of the gold when I want to, to pay for something or to access the money.  Now, someone pretends to be me.  They go to the bank.  They pretend to be me, and they’re able to bamboozle the bank into opening the vault and letting them take my gold out.  Now, this has nothing to do with identity theft really or with intellectual property.  It simply is a means of committing a type of theft or fraud.

01:44:33

Basically I own the gold.  I’m the owner of the gold, and the bank has some kind of ownership relation too in the sense that they’re the custodian, and this person has taken control of something not owned by them without my permission.  That’s called theft or trespass or conversion or something like that.  It’s basically a type of trespass.  They probably also violated the bank’s rights by using the bank’s property under false pretenses and in violation of the bank’s implicit rules where they make it clear that you have to be who you say you are.  You can’t be lying to us.  You guarantee that you’re telling the truth when you sign on the dotted line, etc.  So you don’t need IP law to stop people from committing various types of theft, so that’s another bad argument.

01:45:18

Okay, and then we have arguments by grammar or semantics or even emotion – so I’m on slide 50 now – where people use the argument that – they use the argument that IP is called property, intellectual property, or they just use these synonyms that are bandied about now by the IP lobby like theft or taking or stealing or ripping off or piracy which, if you think about it, piracy means going onto someone’s boat without their permission and killing them and taking their stuff.  That’s a clear violation of tangible property to your body or your stuff or your boat.

01:45:58

They use that now to refer to people copying information, which doesn’t take anything.  And, in fact, one of the first pirates was – pirates use to be authorized.  They were called privateers or something, authorized by the state by what’s called a letter patent actually.  So patents actually were authorizing piracy back in the 1500s, etc. like Sir Francis Drake.  So it’s kind of ironic that they claim they’re against piracy, but anyway.  So you can’t just – you can’t say something is property because it’s theft to take it.  That’s begging the question.  It’s only theft if it’s property in the first place.  You can’t justify it that way.

01:46:39

And of course copying is not theft.  If you learn some fact from someone, if I make a copy of a book or if I make a copy of your iPod and compete with you, I’m actually not taking your iPod or your book from you.  I’m – and then the IP proponent will retreat and they’ll say, well, yes that’s true, but you’re taking from me the money I could have made.  So now they’re kind of getting a little bit more honest, so they’re admitting that really it’s about money.

01:47:09

It’s about revenue and things like this.  So – but what that means is their argument is really that they’re saying if you have a business where you’re making a certain profit or you expect to make a certain profit or you could make a certain profit if you had a monopoly that you have some kind of property right in that future uncertain income stream.  But the income stream is not just a stream.  It’s money that’s owned by future people, money that they own, not you.

01:47:35

And you don’t have a right to money in customers’ pockets.  They have the right to spend it if they chose to.  This is exactly why competition is permissible.  This is why, if Walmart competes with a drugstore in a little town and “steals their customers,” that’s not really an act of stealing even though the word is sometimes misused there.  In fact, there’s nothing wrong with stealing customers because the drugstore doesn’t own those customers.  The customers own those customers.  If I steal your girlfriend by persuading her to date me instead of you, I haven’t stolen your girlfriend.  I know the word your is used, and it’s possessive.  This is another dishonest argument.

01:48:18

People say, well, whose idea is it if it’s not mine?  It’s my idea, isn’t it?  This is argument by semantics or by possessives.  It’s ridiculous.  Just because the English language or some languages use possessives to identify things doesn’t mean they’re ownable.  Just because there are things and concepts that we can identify in the world doesn’t mean they’re ownable.  I can identify a poem.  I can say it’s my poem, which means I am the one who came up with the poem, doesn’t mean that I should own it in some kind of legal sense anymore than I own my girlfriend or a drugstore owns its customers.

01:48:55

Okay, so this is – and by the way, the patent and copyright used to be called monopolies.  They were – the proponents were quite honest about this.  As I mentioned, the modern patent system originated with the Statute of Monopolies in England in 16 – I want to say 1623-1624.  And a lot of economists and free-market types were against them for this reason or at least thought they should be severely limited because they knew they’re a derogation from or an exception to the normal free market property-type system.

01:49:32

But in response to sort of mounting a tax on the legitimacy of this cold, corrupt system like, say – I don’t know exactly the date.  I think it was in the early 1900s, maybe late 1800s.  I think it was early 1900s.  The proponents of patent and copyright and to some extent trademark and trade secrets but primarily patent and copyright started using the word industrial property or intellectual property.  So they started using the word property because people had a positive connotation with property.  They thought property was a natural right.  It’s what you’re entitled to by law and by justice, etc.  So if you call these entrenched interests, these monopoly privileges, the government grants, you call them property rights, the people are going to sort of assume they’re legitimate and just and part of the capitalist or property system, and that’s exactly what happened.

01:50:27

Now, of course, there are lots of people now that argue that you have a property right in your social security benefits or that you have a natural human right to a job or to education or to medical care or to welfare.  Well, they’re wrong.  Just calling something property or a right doesn’t make it justified, so we need to be aware of these sort of argumentative tricks.

01:50:55

Okay, slide 52 now.  You hear this all the time, the continual refrain of the non-principled person who has really – everyone is utilitarian now.  It’s the problem.  So there’s never any kind of bright line about anything.  So they’ll say the patent system is broken, and they’ll usually say it used to do a good job, but now it’s been broken, so therefore we need to do what?  We need to fix it.  We need to reform it.  So then you have people like Tabarrok and others saying, oh, we – or Judge Richard Posner recently saying, oh, the system has gotten out of hand.

01:51:29

Now, they’re implying that it used to work fine.  I don’t know how they’re supposed to know this.  But anyway, so what they want to do is they want to reduce the scope of patent or copyright.  They want to reduce the terms.  They want to reduce the economic or the civil penalties or even the criminal penalties, but they don’t want to go down to zero.  They have no reason for this except they’re either hunches that we need some system, but they sort of know we – they know that it’s messed up.  They know it’s bad.  They see egregious examples, but because they can’t think in principled terms, they don’t want to abolish it.

01:52:06

Oh, I found the quote now I mentioned earlier by Machlup.  So what Machlup said, as I mentioned earlier, he said if we didn’t have a patent system, it would be irresponsible to say we should have one.  But then he said, but since we had had a patent system for a long time, it would be irresponsible on the basis of our present knowledge to recommend abolishing it.

01:52:26

Now, why is this?  I mean by this reasoning we could never get rid of slavery if we had it.  We could never get rid of the drug war.  We could never get rid of income tax, never stop war.  I mean after all we have these policies and institutions and laws.  The same type of person would say don’t throw the baby out with the bath water.  Well, of course this kind of stupid, non-serious argument, this argument by bromide, argument by slogan assumes that there’s a baby there and that the bathwater is bad, but the baby is good.

01:52:59

In other words, they’re assuming that the core idea of patents and copyright is good.  We need some.  We’re better off with some reasonable small amount of patent or copyright but not too much.  So we need to get rid of the bathwater and not the baby.  Well, first of all, even if they’re right, they’re assuming it’s possible to get rid of the bathwater but not the baby.  I don’t know why they assume that.  They sound like these republican and democrat candidates every presidential election who say we need to get rid of waste in the government.  It’s impossible to get rid of waste in the government.  This is part of – this is what you get when you have that kind of system.

01:53:33

So even if some small amount of IP would be a good idea, it’s evidently impossible to keep it from being beholden to and corrupted and distorted by the special interests like Disney and the movie industry and the pharmaceutical industry and the software industry, etc. and having it metastasize and get worse and worse every year, where we started with 14-or-so-year terms for patent and copyright, and now it’s grown to 17-20 for patents and over 100 for copyright.

01:54:06

But second of all, they’re assuming there is a baby there.  In other words, they’re assuming the patent system – some patent and copyright system is good.  And as the quote goes, which I borrowed from – actually I didn’t borrow it from Harry Brown, but I found out later that Harry Brown had an ad for when he was running for president 15, 20 years ago where he said something like don’t throw the baby out with the bathwater unless it’s Rosemary’s baby, which was – which is a line I use, something like that.  I said in response to people who say we shouldn’t get rid of the – we shouldn’t throw the baby out with the bathwater, I said we should if it’s Rosemary’s baby, which is how I view the IP system.  It’s evil.

01:54:46

So slide 54.  Another argument I hear is that – is more the argument about intuition where people say we – it just seems wrong to me to take people’s things.  Well, first of all, you don’t take people’s things.  You make a copy of it.  The original person with the original mousetrap in the case of inventions or a novel or a movie still has it as do all the other people who have gotten copies of it in the meantime.  So your making a copy doesn’t take it from them.  All you take from them is the money they could have made if they had had a monopoly, but that begs the question to assume they have a right to that money, and that’s just wrong to assume they have the right to that money.

01:55:31

So anyway, it’s just not really an argument.  And furthermore, sometimes they’ll do the thing I talked about earlier.  They’ll mix it up with plagiarism.  They’ll say, well, it’s wrong to plagiarize.  Well, what do you mean by that?  Well, it’s wrong not to give credit to an author.  It’s like, okay, well, then give credit.  I mean you might have an argument that it’s maybe wrong or unprofessional or unethical in some sense to extensively quote from someone in something you’re writing with, say, and not to put quote marks around it and give credit to the author.

01:56:05

Okay, that’s got nothing to do with copyright.  All it means is you should be honest about where you’re getting substantially quoted material.  Copyright doesn’t just prevent literal copying, by the way.  Copyright prevents derivative works like if I wanted to make Stars Wars #12 – well, number – let’s say #7 myself with my own plot based upon these characters, that’s not copying at all.  It’s what’s called a derivative work, and everyone would know that it’s a derivative work because I’m saying this is Stephan Kinsella’s Star Wars #7.  It’s my interpretation of what I think would have happened after Star Wars #6.  It’s not dishonest.  It’s not failing to attribute.  It’s not even a literal copy.  It’s simply fan fiction.  What’s wrong with that?  Nothing’s wrong with it.

01:56:57

Slide 55, I’ve already talked about this a little bit, the question you get: how would I get paid for writing a novel?  And as I’ve mentioned, number one, a question is not an argument.  Number two, there are some possible answers to this.  I gave a possible example of J.K. Rowling.  Ayn Rand and the Randians – they have this confusing way of talking about all this where they talk about – I think I mentioned this in the first part of the lecture.  They talk about man’s way of living on Earth is to create values.  It’s a weird way of arguing.  I agree that man is – man needs to use his mind to be – to understand reality.  He doesn’t live by intuition.  The Randians are right about that.

01:57:45

01:57:49

So the – putting it this way is bizarre.  A value in the Austrian sense is a subjective phenomena.  It’s more of a relationship between a human actor and some desired goal, which sometimes could be a scarce resource or a scarce means either valued directly to achieve it or to acquire it or as an indirect means of achieving some goal down the road.  But when the Randians talk about man creates values, it’s a little bit ambiguous, and of course – so the problem is with ambiguity and at least to equivocation and to sloppy arguments, it is true that when we are creative, that means we take existing resources that are owned, scarce resources, and we manipulate them using our intellect, our creativity, our labor.

01:58:42

And we make them more valuable.  They’re more valuable means we regard them as more valuable, means we create wealth.  You could say that we create wealth, but we don’t create new property.  There’s no new property rights.  It’s just property that’s owned.  It’s rearranged.  So when Rand says we create values, it’s a little bit ambiguous – or it’s a lot ambiguous because it makes you think of some thing that exists.  Sometimes the value is an object like a new car, and I guess sometimes the value is a reputation, and sometimes it’s a novel or a poem.  So basically what they’re saying is anything that’s a thing that you can conceptually identify with a word that has value, that is, that’s the end of action, is an ownable, existing entity.

01:59:25

See, that’s the implicit assumption, and that’s their mistake because they’re wrong about this.  Not any thing that I can conceptually identify is ownable.  And, in fact, to own a poem, let’s say is literally impossible because to own is to have the legal right to exclusively control.  It’s impossible to literally own a non-scarce thing like a pattern of information.  I mean it’s just literally impossible.  There’s just no way to do it.  It would be like having a one and a zero at the same time.

01:59:53

You cannot control a pattern of information.  What the law actually does is the law uses that metaphor of ownership of information as an excuse to justify transferring real resources from one owner to another.  So, for example, by saying I own this poem or this movie or this novel or this invention, I’m able to persuade a court to use physical force against some other person who has not made a contract with me and has not trespassed against me or my property.  So in other words, those things would justify taking property from them and giving it to me if I had agreed to it.  But the government is basically able to use the metaphor of pattern ownership as an excuse or a fake justification for taking your money and giving it to me to pay me “damages” for the “trespass” I did to your “intellectual property.”  But really it’s just a complicated way of taking your property from you and giving it to me, which is normally called theft or redistribution of wealth.

02:01:03

Okay, so this is the problem with the Randian focus on values is they lose sight of what property relates to.  It relates to ownership.  It controls – interrupted by dogs, but the point is they lose sight of the fact that property is a relationship of exclusive control, a legally recognized ownership relation between a human actor and some scarce resource that otherwise people could fight over or conflict over.  It has nothing to do with non-scarce patterns of information.  And it doesn’t mean that ideas don’t have value if you don’t recognize property rights in them.

02:01:44

Love has value.  We don’t put a property right on that either.  Just because there are not property rights in some thing doesn’t mean that there’s no value in it.  It doesn’t mean we don’t value it.  But it does – and the same thing with the intellect.  The Randians like to deride people who are against IP as being some kind of anti-mind looters and materialists who don’t appreciate the role of the mind.  Of course we do.  The mind is extremely important.  It’s what makes us human, and the – as noted, human action, as Mises looked at it in the praxeological lens, is a physical human actor living in the world who’s not only physical by the way.

02:02:24

We have a – by the way, human action is distinguished from human behavior in Mises’ epistemology.  He’s a dualist.  He sees both sides to human life.  We have a physical body.  We have a brain.  We also have a mind.  We’re actors.  We have behavior, and we also have action.  We have goals we pursue.  We need our intellect.  We need our understanding of the world.  We need creativity.  We need labor to understand the world so that we know how to have successful action and how to live good lives.  And we also need to successfully use physical things in the world.  Even Ayn Rand recognized this when she said man is – he’s not a ghost.

02:03:01

He has a physical body.  He has real needs in the real world, and that’s why in her kind of libertarian view of the non-aggression principle, she recognized that physical force is a thing that we’re opposed to in terms of interpersonal ethics.  She said man may not use force against each other’s physical stuff.  So she recognized this physical aspect of life and the spiritual or the mental aspect, and so does human action in the Misesian sense because it recognizes we need to have a teleological framework for understanding action.

02:03:36

We have goals.  We have ends, which are subjective, and we have to understand the causal laws of the world to know what ends we can achieve and what causal scarce means can help us achieve those ends.  And we need control over those physical causal means as well, and that’s what property rights are for.  So by speaking kind of loosely about man’s purpose, his creating values, and therefore – they basically just jump to the question, well, if you create a value, who’s supposed to own it?  Well, the answer is naturally the person who creates it.  That’s if we assume that values are ownable things.  Values are not ownable things unless by values we mean scarce means that are subject to conflict and dispute.

02:04:19

02:04:23

And a related error made quite often by people who advocate IP just like an error made by lots of non-libertarians is this idea that not only do you own values, but you own the value of things.  So that you not only have a property right in the physical integrity of physical objects that you are the owner of, but you have some kind of – you have a property right in the value of these things, which is the Randian argument for a right to a reputation.  You put effort into it.  You put your labor into your reputation.  It has “a value to you.”  It’s “a value you created.”  Therefore, you “own it.”  This is another confused argument.  You actually do not have – as Rothbard showed in his argument…

02:05:05

Okay, interrupted again.  So this mistake is what a lot of people make is the idea that you own the value of things that you own.  But as Rothbard showed in the Ethics of Liberty when he talks about owning knowledge and information and when he talks about reputation rights and defamation, first of all, value is subjective.  It’s what – it’s how people regard something, and the value of something on the free market, sort of the fair market value, is how other people regard something or how they appraise it, how they are willing to pay for it, how much they would be willing to pay for it, etc.

02:05:38

And you can’t own how other people regard something.  If you have a house, let’s say, its value may go up if your neighbor chops his rose garden down.  But that doesn’t violate your property rights because it’s not a trespass against you.  And the value of the house anyway in this sense is what other people are willing to pay for it.  You don’t have a right to that either.  You only have the right to the physical integrity of your property, that is, to not have its borders invaded against your wishes, to not have it used without your consent.  And, in fact, this mirrors perfectly Ayn Rand’s idea of the non-aggression principle where she said no man has the right to use force against other people’s property rights or bodies.  So she was recognizing there this.  She just was inconsistent on this whole issue.

02:06:33

Another bizarre argument I’ve gotten – I’m on slide 57 – is that I’ll have patent lawyers or others or patent proponents.  They’ll – if I have – when we talk about…

02:06:45

Anyway, this argument is kind of silly.  What they say is that – when we say IP is about protecting ideas and that’s illegitimate, they’ll say, well, it’s not really about protecting ideas.  So they basically just keep hiding the ball on you.  They’ll – it’s just like some of the arguments of the – some of the proponents of IP say it’s not really a monopoly.  And then others say, yes it is a monopoly, but it’s justified.  These guys say it’s not about ideas. It’s about implementation of ideas.  I mean it’s just a little detail that’s kind of really irrelevant, and it’s basically however we want to describe the system they’re in favor of.  We try to do it in accurate, descriptive, honest ways, and they, of course, object to that because they don’t want us to shine light upon this bizarre system that they’re in favor of.

02:07:29

The other one is kind of an arcane matter that I get into debates with other patent people who know a little bit about the patent system.  And they’ll say that, oh no, you’re wrong in saying that the purpose of the patent system is to stimulate innovation and that it’s unjustified because there’s no proof that it does that.  The real purpose of the patent system is to stimulate disclosure.  I mean what can you say to these people?  They keep changing the goal.  It is true that the original – the patent law as written – I mean the patent provision in the Constitution implies that this limited monopoly is justified to promote the useful arts.  Does it mean to promote their creation or their disclosure?  Well, probably both, and that’s what the patent act does.

02:08:19

The patent act gives a monopoly in exchange for disclosing in a patent disclosure a description of your invention.  But the idea is also that you can charge a monopoly price for it for some period of time, and therefore, you have a higher incentive to engage in the research and development of the idea in the first place.  So that is their argument.  If that’s not their argument, then I guess they don’t have any argument for IP.

02:08:44

Slide 59.  Well, the other one is you must be a leftist if you’re against IP.  What, are you against capitalism?  Are you against property?  And of course the main argument against IP is that undercuts real property rights.  It is because – like I am in favor of strong, undiluted private property rights in scarce resources that I oppose IP because it undercuts the libertarian – excuse me – the libertarian, Lockian basis of owning property, which is that every scarce resource, we can identify who should own it, who has the right to own it by asking either who was the first one to use it or find it in the Lockian sense, or who did you – who was the one who acquired it by a contract from a previous owner?

02:09:39

It’s one or the other.  That answers the question.  If you come up with a third rule like, or who invented the idea that’s embodied in that thing, then you’re undercutting the first two rules, and you’re transferring ownership of an existing thing to a third person who didn’t find it and who didn’t acquire it by contract.  This is why one of my first IP articles on lewrockwell.com was called “In Defense of Napster and Against the Second Homesteading Rule” because what I was pointing out was that the only way to enforce IP rights is to basically come up with a second property allocation rule that undercuts the basic Lockian homesteading rules like a second homesteading rule, which is, of course, what any criminal or socialist does.

02:10:25

They come up with yet another rule for redistributing property.  They’re saying instead of the first user or the person who acquired it by contract, then instead of that first person or the person who acquired the property by contract from a previous owner, someone else gets it instead.  That’s why – that’s the argument behind, say, taxation or conscription is that no, you’re not yourself owner of your body.  We are.  We’re going to put you in jail if you don’t go fight in this war.  We’re going to put you in jail for smoking marijuana or whatever.  So basically every criminal act and every un-libertarian law deviates from the Lockian property rules that libertarians adhere to.

02:11:08

Okay, slide 60.  Well, sometimes you’ll have an argument that patent and copyright could exist under anarchy or common law.  Usually this is based upon this contractarian argument I talked about earlier where they say, well, you could have something like IP formed by contract, which I’ve already discussed.  Other people would say that it could be done by some kind of court decisions.  I find it inconceivable that people are serious they could really believe that anything like the arbitrary, artificial, legislated schemes of state grants of monopoly privilege in the form of patents and copyrights could just spontaneously or gradually somehow or organically emerge from court decisions.

02:11:54

Basically, you would have someone publish a book, and they make it public and other people make copies of it.  And then the publisher or the author would go to a private arbitral tribunal.  They would have to accuse the copier of either committing a tort, which is like a type of trespass, or being in breach of contract.  But they wouldn’t be able to show that because the copier, number one, doesn’t have a contract with him, and if he does, it’s just a contract case.  It’s not really a copyright case, or he would have to show that they committed some kind of trespass, which is basically the use of or invasion of the borders of the tangible, scarce, real resources owned by the original seller.

02:12:43

But they won’t be able to because they didn’t do that.  He released the information into the commons – not the commons.  I mean he made the information public, and as Benjamin Tucker says – I’m going back to slide 51 – if you want your invention to yourself, keep it to yourself.  You can’t go making knowledge and facts available publicly, which has certain benefits to you to make it public.  You get fame or you get fortune or you sell a product and you tell the world my new mousetrap has this feature.  You can’t reveal this information and make it public and expect people not to learn from it and be able to use the information that they’ve gained.

02:13:21

Okay, finally 61 – well, not finally but almost.  Pharmaceuticals is one of the common cases.  Almost every patent reformer says, well, at least in the case of pharmaceuticals, you can admit that we need patents because it’s so easy to make a copy of a pharmaceutical that takes billions of dollars of research and development to develop.  Well, in the empirical case for pharmaceuticals is just simply false.  There have been countries in the past that have had strong patent – strong pharmaceutical industries without a patent system in pharmaceuticals like Italy and Switzerland.  And if you look at chapter 9 of Boldrin and Levine’s book, Against Intellectual Monopoly, they go through this whole case exhaustively.

02:14:03

And they just show that all the assumptions about the necessity – so-called necessity of patents for the pharmaceutical industry are just empirically false.  There’s no reason to believe that we wouldn’t have a very strong pharmaceutical industry without patents.  In fact, I believe it would be much stronger, especially if the government got out of its way in the other areas like taxes and regulations and the FDA, etc.  So we have the federal government imposing untold billions of dollars of red tape and cost on capitalism and industry, and we can’t expect that government to make things better by imposing handing out little patent monopolies.  The government needs to get out of the way.  We’d all be richer.  There would be more money for investing.

02:14:49

I mentioned the Francis Drake thing earlier.  I have a little bit of this on slide 62 talking about how letters patent were used in the 1500s to give pirates like Francis Drake the authority to engage in legalized piracy.  I’ll skip that one for a second.  One more on slide 63.  This idea that you can have conflict in ideas is actually – again, this is false because conflict is always conflict over scarce resources.  This is what scarce resources mean.  A scarce resource in the economic sense is what we call a rivalrous resource, that is, something that there can be rivalry or conflict over.  That is, only one user or actor can use this thing at a given time.  If two people could use something at the same time, it wouldn’t be a scarce resource, or it would be two things or something like that.

02:15:40

It’s like when people say people fight over religion, it’s – again, this is the danger of sloppy or overly metaphorical discourse.  What they’re – when people say there are wars fought over religion, it’s accurate if you understand what they’re really saying is that disagreements over religion are the motivation that people engage in the war.  But the war is always over scarce resources, that is, over the physical control over land or resources or people’s bodies.  So if I want you to say you are a Christian and if you don’t admit you’re a Christian and you instead say that you’re a Muslim, I will kill you, then the dispute is really over who gets to control your body.

02:16:28

I’m saying I have the right to control it.  You want the right to control it yourself.  If my threat to you to do something to you if you don’t change your mind about religion was just words and I wasn’t threatening to use your body, then you wouldn’t care.  I’m just saying you better change your mind, and you say, or what?  And I say, well, you just better.  So all disputes, all conflicts are always over scarce resources, which is why in a patent suit, for example, or copyright suit, it really comes down to something that the defendant, let’s say, controls – his printing press, his factory, his body, his money.

02:17:06

The IP plaintiff, the copyright plaintiff, or the patent plaintiff is trying to use – get the court to use physical force directed coercively against the physical body or bank account or property of the defendant, victim, to tell him you have to hand some of this over to the plaintiff, or you have to stop using your property in a certain way.  Otherwise, we will hurt you.  So it’s always a dispute about who gets to control what, and when you put it this way, you see that this is why intellectual property is incompatible with libertarianism because libertarian rules already give us the answer to the question, who gets to control that guy’s body.

02:17:46

Well, the answer is he gets to control it unless he’s using it to commit an act of trespass or aggression against someone else.  So then the IP advocates sometimes will get sneaky and they’ll say, well, but IP is my property.  But you see, this is question begging because they can’t use the conclusion that IP is property in an argument meant to show that it should be recognized as property.  So again, they just end up with a circular, dishonest, question-begging argument.

02:18:17

And I have some useful quotations starting on page 64, but I think I’ve covered all the main objections I get from IP.  So I will end this here, and it’s been kind of a long series of discussions.  I, as always, welcome questions.  Feel free to email me or post them on my blog or talk to me on Facebook, etc.  So thanks a lot, signing out now.

02:18:43

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Kinsella on Liberty Podcast, Episode 236.

[Update: a transcript is now available.]

At Libertopia 2012, I delivered a 45-minute talk , “Intellectual Nonsense: Fallacious Arguments for IP” (Oct. 12, 2012), the slides for which are below. I spoke for 45 minutes—well, 40, then the last 5 were taken up by a question from J. Neil Schulman—but only covered the first 25 slides. I covered most of the remaining 41 in a separate recording, Part 2: KOL237.

Grok summary:

At Libertopia, I also participated in an hour-long IP panel with Charles Johnson, moderated by Butler Shaffer. It is presented in Part 3, KOL238.

Grok detailed summary

***

This episode covers issues in the first 25 slides, including:

• Overview of case against IP: purpose of property
  • patent and copyright: as negative servitudes
• Absurd Arguments for IP
• “Serious” Arguments for IP
• Libertarian Property “Creationism”
  • Rand on rearrangement
• Good ideas are scarce!
• IP is just like “property”!
• All property rights are limited/no property rights are “absolute”
• Absolute property rights
• We should “balance” innovation/IP vs. free speech
• Roots of copyright: censorship
• Balance: between copyright and freedom of speech
• Hollywood blockbuster movies vs. Youtube/Internet freedom
• We should “balance” innovation/IP vs. free speech
• IP is not a monopoly!
  • Origin of modern patents
• Liberty is good, but not our “only value”

(Previously posted as here: Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012) (Oct. 13, 2012). See also See also:  There are No Good Arguments for Intellectual Property.)

Update: I thought of one more argument that I forgot to cover in the slides and talk. It is the argument made by Silas Barta that (a) some libertarians support rights in airwaves (electromagnetic spectra); but (b) if you support airwave rights you have no basis to object to rights in other nonscarce resources like inventions or patterns of information (see Why Airwaves (Electromagnetic Spectra) Are (Arguably) Property). [Update: See also Silas Barta: The shortest, safest libertarian case [sic] for IP]

There are several problems with this argument. First, not all libertarians support rights in EM spectra. So they are not committed to favor IP rights, even by Barta’s argument.

Second, even if EM spectra ought to be homesteadable, it does not mean that patterns of information ought to be. This is because EM spectra are actually scarce resources, while patterns of information are not. IP proponents typically grudgingly admit, when pressed, that EM spectra are  scarce but patterns of information—knowledge—is not, but they then shift to the argument that the monopoly over information leads to a “right to exploit” the monopoly, which leads to acquisition of profit (money), which is a scarce resource. The problem with the latter maneuver is that the profit comes from money voluntarily handed over to a seller by a customer. But the customer owns his money until he chooses to spend it. No other person has any property right claim in other people’s money or, thus, in any possible future income stream or profits.

Third, even if support of airwave property rights were to imply some type of possible rights in information or the right-to-exploit information, it does not imply that legislated IP rights systems like patent and copyright are justified (see, e.g., Legislation and Law in a Free Society). The advocate of an IP system that is somehow compatible with EM spectra rights has the burden of making a positive obligation for this system, and specifying its details. He can’t just say that IP is justified just because some of its opponents favor EM rights or are confused on the EM issue.

Finally, and to complement the previous point: even if you can argue that EM rights are valid, and do somehow impinge on normal property rights in scarce resources (which I disagree with), this does not mean that “anything goes”, that just any limits on property rights in scarce resources are justified (and this is a point I emphasized in the lecture—see slides 14-15, and my posts The Non-Aggression Principle as a Limit on Action, Not on Property Rights; IP and Aggression as Limits on Property Rights: How They Differ). Again, the IP proponent would need to put forth a positive argument for IP rights. It cannot be established by criticizing its critics. As an analogy: suppose someone believes conscription is justified, but also opposes rape. You cannot show that rape is justified just because some people are wrong on conscription; you cannot even show that rape is justified if conscription is justified.

Another argument I sometimes hear is exemplified here:

By such a viewpoint there’s nothing wrong with raiding an online bank account – how can the account holder claim to own something as arcane as electronic digits? People can’t claim to own electricity or numbers hence they can’t claim ownership of so-called electronic money let alone complain when they’re account is gone. For anyone to claim ownership of money it has been made out of a physical medium such as paper or metal, right?

In other words, we all believe it’s wrong to get into someone’s bank account; yet this requires something similar to IP—ownership of nonscarce things. Therefore, if it’s okay to own money in a bank, why not the patterns of information protected by patent and copyright. Well: in a free society, money would be gold, a scarce thing. You don’t need anything IP-like to protect property rights in such scarce resources. Pointing to the fiat money created by the state and related rules hardly justifies the state creating property rights in ideas. Further, even in today’s fiat society world, we can say that it’s a rights violation for someone to access your bank account, because to do that requires accessing scarce resources owned by the bank, and when deception is used, this is fraudulent: the deceptive person gains entry under false pretenses, meaning that the consent given by the bank is not valid, meaning that he is committing a form of trespass. (For more discussion of related issues, see my post Why Spam is Trespass.) (A similar argument is made by Jamie McEwan; see  Yeager and Other Letters Re Liberty article “Libertarianism and Intellectual Property”).

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Kinsella on Liberty Podcast, Episode 235.

This is a short video produced by the Federalist Society (Feb. 6, 2018), featuring me and IP law professor Kristen Osenga (I had met Osenga previously, as a co-panelist at an IP panel at NYU School of Law in 2011). I was pleasantly surprised that the Federalist Society was willing to give the anti-IP side a voice—more on this below. To produce this video, Osenga and I each spoke separately, before a green screen, in studios in our own cities, for about 30 minutes. The editing that boiled this down to about 5 minutes total was superbly done.

see also James Stern: Is Intellectual Property Actually Property? [Federalist Society No. 86 LECTURE]

Transcript below.

From the Federalist Society’s shownotes on their Facebook post:

Why does the government protect patents, copyrights, and trademarks? Should it? Kristen Osenga and Stephan Kinsella explore the concept of intellectual property and debate its effect on society as a whole.

Kristen Osenga, a professor at the University of Richmond School of Law, and Stephan Kinsella, author of Against Intellectual Property, explore the concept of intellectual property and debate its effect on society as a whole.

Differing Views:

• Libertarianism.org: Libertarian Views of Intellectual Property
• A 21st Century Copyright Office: The Conservative Case for Reform
• Mises Institute: The Case Against IP
• Law and Liberty: Why Intellectual Property Rights? A Lockean Justification
• The Constitutional Foundations of Intellectual Property
• Harvard Law: Theories of Intellectual Property

[continue reading…]

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Kinsella on Liberty Podcast, Episode 234.

Related:

• Craig Wright: You Don’t Own Your Digital Stuff. NFTs Could Actually Fix That — Without Intellectual Property

This is a debate on IP between me and a noted Bitcoin expert, Craig Wright, hosted and moderated by the Vin Armani show.

Update: Recent twitter exchange:

@NSKinsella

So, Mr. Kinsella, if someone creates a system of true digital scarcity—one that does not require state protection in the way you claim, beyond ordinary rules against theft, bailment breaches, fraud, and the usual protections applicable to property—what then?

If… https://t.co/No0Rx0Z7Bp

— S Tominaga (Aka Dr Craig Wright) (@CsTominaga) June 16, 2026

anything peaceful is permitted of course.
But your little schema has nothing to do with IP rights.
Ideas or information cannot be owned since they never exist as independent things but are just arrangements of features of material substrates which are already owned by someone by…

— Stephan Kinsella (@NSKinsella) June 17, 2026

“If digital property can be controlled, accessed, transferred, and protected without being freely copied, making it genuinely scarce, does your objection collapse?”

Some informational entry in a database arranged so that users of the system cannot copy it has nothing to do with…

— Stephan Kinsella (@NSKinsella) June 17, 2026

Tweet:

Tweet:

Transcript below along with Grok shownotes.

Debating Wright

I was in London to attend the inaugural 2018 meeting of Mises UK and to hang with my boys Lee Iglody, Jeff Barr, Doug French, and Hans Hoppe, and had challenged Wright to a debate during a few twitter run-ins (still on-going); I accepted and since I happened to be in London, Wright set it up and we did it at a local studio, with Armani moderating from Vegas.

After the debate

Further comments appear on my Facebook post and also on the Youtube post (below).

Update [7/17/19]: I had my buddies Jeff Barr and Doug French in the room watching, and after the debate, invited Craig to drinks in the hotel bar. We had an interesting, if a bit bizarre and intense, discussion for an hour or so. But in the ensuing weeks, things between us devolved on Twitter. Wright had promised to produce “proof” of patents stimulating innovation during the debate, and apparently, like with many of his promises to produce something, never came through. I pointed that out on Twitter and he eventually ended up blocking me, as well as the podcast’s host, Vin Armani, who at the time was, with Wright, a fellow BCH advocate (Vin is still a BCHer but Craig has split off again with his BSV). Of course, in the meantime, Wright has amped up his risible claims to be Satoshi and has been involved in a number of controversial issues in the bitcoin/crypto community. What a character.

Also: during the debate I referred to him as Dr. Wright, since he claims to have several PhDs, but now I am not sure he has any legitimate PhDs, other perhaps than one in “theology”, so I should not have called him “Dr.” ¹ That was too deferential. On the other hand, he did pay for the venue and related costs, so I was being polite.

Grok Summary

The debate on intellectual property (IP) law, hosted by Vin Armani on January 27, 2018, featured Stephan Kinsella arguing against the resolution that IP is a legitimate and useful institution for blockchain and cryptocurrency, while Craig Wright defended it. In his opening, Wright emphasized the scarcity of good ideas and their implementation, arguing that IP protects individual creators’ rights more fundamentally than homesteading physical land, as ideas are created from nothing. He cited natural experiments in countries like India, where reintroducing IP laws allegedly led to a 60% increase in patents by startups, not large companies. Wright contrasted IP with alternatives like trade secrets, using the ZeniMax vs. Oculus case to illustrate how trade secrets create market uncertainty and slow innovation, while patents provide disclosure and clarity. He framed opposition to IP as “intellectual communism,” forcing creators to share against their will.

Kinsella, in his opening, defined IP as government-granted monopolies (patents for inventions, copyrights for artistic works, plus trademarks and trade secrets) that infringe on genuine property rights in scarce, rivalrous resources. He argued that property rights arise from homesteading or contract to resolve conflicts over physical goods, not ideas, which are non-rivalrous and essential to action but not ownable. Kinsella rejected creation as a source of ownership, noting that transforming owned resources (e.g., iron into a horseshoe) creates wealth, not new rights. He claimed IP hinders innovation, distorts culture, and censors speech, prioritizing justice over utilitarian goals like spurring creativity.

In response to questions on legitimacy, Kinsella expanded that IP is unethical and un-libertarian, as it transfers property rights without consent, akin to theft or slavery. He criticized IP’s arbitrary expiration (e.g., 17 years for patents) as evidence it’s not true property, and argued it violates free speech by restricting expression, such as banning sequels or hyperlinks to content. Empirically, he asserted no clear proof IP boosts innovation net of its costs (e.g., patent thickets stifling research), citing economists Boldrin and Levine’s work showing patents correlate with filings but not actual productivity gains. Kinsella highlighted his experience as a patent attorney, observing inventions arise from market needs, not IP incentives.

Wright rebutted by calling Kinsella’s arguments circular and false, insisting IP aligns with Lockean rights and societal agreements. He claimed over 2,000 studies from natural experiments (e.g., IP reductions in India and China leading to innovation drops, followed by surges upon reinstatement) support IP’s benefits for small innovators. Wright traced IP to ancient precedents like Roman judicial law and medieval letters patent, rejecting the idea it’s a modern monopoly. He argued creators have rights to control their work, and without IP, theft via trade secrets proliferates, as in Google Waymo cases, creating uncertainty that deters investment.

On utility, Wright explained IP’s mechanism: patents reduce uncertainty by disclosing inventions publicly, enabling due diligence for investors and preventing costly secret thefts, unlike trade secrets that led to billion-dollar disputes (e.g., Oculus). He advocated updating outdated IP models but insisted communities can agree on rules, aligning with individual choice. In blockchain, Wright argued IP prevents fragmentation (e.g., Bitcoin splits), fosters certainty for scaling against incumbents like Visa, and protects costly innovations his company developed, countering claims that open-source drove crypto growth.

Kinsella rebutted Wright’s evidence as anecdotal, pointing to his compilation of studies showing IP’s net harm, including trillions in lost innovation. He labeled IP socialist for interfering with private property, per Hoppe’s definition, and dismissed historical precedents as mercantilist monopolies antithetical to free markets. On free speech, Kinsella cited cases like the banned Catcher in the Rye sequel, Nosferatu film destruction, Aaron Swartz’s suicide amid copyright charges, and threats against yoga poses or tattoos as direct censorship. He argued trademark creates “reputation rights” implying ownership over others’ thoughts, while trade secrets unjustly target third parties.

In closings, Wright defended IP against misrepresentations, clarifying Swartz’s case involved physical trespass (not just copyright) and the Apple iPhone incident as theft by finding, both violating physical property. He promised to compile real-world studies countering Kinsella’s “computer models,” emphasizing human action over simulations. Kinsella reiterated IP’s injustice, burdening proponents to justify it amid historical injustices like slavery. He agreed information needn’t be free but opposed restricting learned knowledge, urging libertarians to favor competition and abolish IP for true free markets.

Wright’s arguments lack coherence and systematic structure, often jumping between philosophical claims (e.g., ideas as scarcer than land), empirical assertions (e.g., Indian patent surges), and historical anecdotes without clear linkages or definitions. His rebuttals frequently digress into unrelated critiques (e.g., equating Swartz’s actions to house-breaking) or unsubstantiated boasts (e.g., “over 2,000 studies” without citations), making the case feel scattershot rather than logically progressive. While he invokes libertarian concepts like individual rights and anti-communism, the arguments are not consistently backed by verifiable evidence; claims rely on vague “natural experiments” or personal company experiences, ignoring counter-studies Kinsella references. This contrasts with Kinsella’s methodical breakdown of property theory and empirical critiques.

Furthermore, Wright’s positions are inconsistent with core libertarian private property rights, which emphasize non-aggression and ownership of scarce resources without state intervention. By advocating state-enforced IP monopolies (e.g., patents in blockchain to prevent “fragmentation”), Wright endorses government grants that restrict others’ use of their own property—precisely the interference libertarians like Rothbard and Hoppe decry as socialist. His dismissal of open-source success in crypto as suboptimal ignores libertarian preferences for voluntary agreements over coerced disclosure, and his creation-from-nothing rationale contradicts Lockean homesteading, which ties rights to mixing labor with unowned resources, not ideas. Overall, Wright’s defense prioritizes utilitarian outcomes over principled non-initiation of force, undermining libertarian consistency.

Youtube (with captions):

Original Youtube (which contains a large number of comments; see below):

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TRANSCRIPT

Intellectual Property Debate: Stephan Kinsella vs. Craig Wright

Stephan Kinsella, Craig Wright, and Vin Armani

Vin Armani Show, London and Las Vegas, Jan. 27, 2018

00:00:00

VIN ARMANI: Welcome everyone to today’s debate.  We are debating intellectual property.  The two opponents are Stephan Kinsella and Craig Wright.  Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom and editor of Libertarian Papers.  He is one of the foremost libertarian experts on intellectual property.

00:00:23

And Dr. Craig Wright is an inventor, computer scientist, and businessman who is one of the earliest minds behind Bitcoin.  He’s the chief scientist at nChain research and development company involved in Bitcoin and blockchain technologies.  So today what we are going to be debating is the following resolution resolved.  Intellectual property law is a legitimate and useful institution that belongs in the emerging global sphere of blockchain technology and cryptocurrency.

00:00:54

Craig Wright will be arguing for the resolution, and Stephan Kinsella will be arguing against.  This debate is going to consist of a series of five-minute statements and rebuttals, a series of rounds.  The first round is going to be an opening statement from each of the debaters.  We are going to start with – did we say we’re starting with Craig Wright?  So we will start with Craig Wright who is arguing for the resolution.  Dr. Wright, if you will.

00:01:26

CRAIG WRIGHT: Thank you. So basically what we’re looking at is the idea that intellectual property has no value from other people. Now, I would argue it does, not because of the common constraints and whatever else people put about scarcity and what they think about copying but for a number of reasons first as the scarcity of good ideas.  There are many ideas out there in the world, but good ideas there are very few.  And then implementing those is another thing altogether.  Why not everything?  Well, very simple.  If we have every single algorithm, we can just create everything, and we have no actual application.

00:02:06

The reality is that, contrary to what many people say, we have much evidence actually benefiting the implementation of intellectual property.  We have a number of natural experiments around the world such as in China, in other places in Asia, everywhere from Singapore right up to India.  And in all of those places, when intellectual property laws have been removed and then when they’ve been added again, we have a lot of evidence in support of what they do, not in helping big incumbents, in fact, the opposite.

00:02:42

In India, for instance, in recent re-additions of intellectual property laws and opening up of the different opportunities they had in that country, opening it up to small startups, we have a scenario where there was immediate 60% increase, not in the number of patents filed by large companies but by small startups.  That actually followed through not only in India but to Indians in America in many different areas.

00:03:12

So what we’re looking at is, I think, something where we have the rights of an individual to their own creation.  If we think about the rights of a homestead, when someone starts an initial property and creates it, then I would argue that there’s actually more rights in intellectual property than even the homestead for the simple fact that, when you homestead, there’s land there before.  You either put a fence, you do whatever else, and you have an act, an act of creating intellectual property, at the same time is an act.

00:03:50

But it’s something where you create from nothing.  You actually – from not something existent before.  You develop something new.  On that, many will argue that if we didn’t do it, someone else would.  For instance, if there wasn’t an invention X that was patented, someone else will come along and invent the same thing, which seems fine, a tabula rasa world.  We just pour information in, and people come up with new ideas.  Except, if we think about that for a moment, if Charles Dickens never existed, if Shakespeare didn’t exist, would we actually have those works?  Would there be another Charles Dickens?  Would we have A Christmas Carol?  Would someone have written that piece of work and created it?

00:04:41

Now, in this, we have the argument, of course, that it’s different and we can just protect it with trade secrets if we want.  But the truth of the matter is, when we’re looking at the alternatives, and I’ll explain this through here, trade secrets actually lower incentive.  A perfect example was ZeniMax and Oculus.  Oculus CTO went across, took IP and source code, and of course now there’s a lot of problems between Oculus, and it slowed innovation in a lot of new areas.

00:05:20

If, on the other hand, patents were disclosed, it would have added a lot of value to a lot of new organizations.  We found that the innovation and investment in that circle basically dried up for awhile.  It went from about a billion dollars down to about a hundred million after that particular case.  Now, that was because of trademark violations, but if it was a patented technology, then ZeniMax would have had it out there unsearchable.  And unlike the Oculus IP, it would have been easy to distinguish because, with trademark, you can never actually tell whether the person who asserts ownership truly does.

00:06:03

At the same time, when a patent is there, there are times to actually go out there and complain and say that it shouldn’t be filed, etc.  So you have opportunities to go out into a court of law and argue this point.  So what I’ll argue is that we have a position where the creator has a right to their creation enforcing that to be something that is in the commons.  Against the will of the creator, we take a scarce idea, and they are, and we make it effectively intellectual communism.  It is an intellectual communism of the commonance where we start actually creating a socialist force to say you have to put your particular invention out there in a way we deem, not you.

00:07:01

VIN ARMANI: All right, thank you very much, Dr. Wright.  Arguing against, once again, just for the audience, the resolution is intellectual property law is a legitimate and useful institution that belongs in the emerging global sphere of blockchain technology and cryptocurrency.  Arguing against the resolution now with a five-minute statement please, Stephan Kinsella.

00:07:25

STEPHAN KINSELLA: Sure.  Thank you.  Intellectual property is a difficult issue until you finally get it, and then it becomes easy and it opens up your understanding of other aspects of economics and property law.  But because it’s difficult and because we’re trying to overcome centuries of IP laws, which people take for granted, it’s important to approach this matter systematically and with clear definitions instead of the more scattershot approach Dr. Wright’s using.

00:07:55

So first, a definition.  Intellectual property refers – is a term used by proponents of certain laws, patent and copyright primarily, and other subsidiary types of intellectual property law called trademark law, trade secret law, and also defamation law, which is not normally considered to be an IP law by the legal profession, but it’s very similar in its effect to trademark, which are both reputation rights.  These are all called IP rights, and they’re called IP rights by the advocates because they are prima facie obviously restraints by the government.  They’re monopoly grants by the government on how people use their property, and to sell these government grants of monopoly privilege, the proponents started calling them intellectual property rights.  And they added the word intellectual to distinguish it from normal property rights, which last forever, unlike patent and copyright.

00:08:49

So just as a quick summary, patents cover inventions.  Copyrights cover artistic works.  Trademark and trade secrets and defamation law cover other things.  My contention is that intellectual property laws are completely unjust and illegitimate and un-libertarian.  And the reason is because these are laws that give other people the right to interfere with or to take outright existing property rights, so basically it’s tantamount to theft.  Contrary to the claims of advocates of patent and copyright, they do not foster innovation.

00:09:22

Rather, it hinders and distorts innovation, and it censors free speech in thought, and it threatens the freedom of the internet.  There’s nothing good about these laws and their consequences, and furthermore, the purpose of law is not to foster innovation or to further some policy goal of the current congress.  The purpose of law is to protect rights and to do justice, to protect property rights.

00:09:47

So the question is what are property rights, and how should they be determined and allocated?  Why do we have property rights?  Property rights are basically a solution to the fundamental fact of scarcity in the world.  When humans act, they can have conflict with each other over the use of their bodies and other scarce resources that they use.

00:10:06

And by scarce resource, we don’t mean something that’s not abundant, like good ideas are scarce.  We mean something that’s rivalrous, a clear economic concept, something of which there can be physical conflict.  Now, when humans act, they employ both ideas and knowledge as well as scarce resources to act, to achieve things to happen in the world.  So they’re both essential to action.  They’re both important.  Just because you’re against intellectual property doesn’t mean we’re against the importance of ideas.

00:10:33

Ideas are crucial to any successful human action.  To have an action, you have to know what you’re going to do, know how to achieve it, and you have to have available means to act with.  So you have to acquire knowledge, and you have to acquire scarce resources.  But because there can be conflict over the scarce resources, we develop property rights so that we can use these resources in a conflict-free way.  So they’re allocated in accordance with two basic principles: homesteading or original appropriation, the Lockian idea of the first person to start using a resource in the commons that was unowned has a better claim to it than anyone else, and then contractual transfer.

00:11:11

The owner of the resource can transfer it to someone else by transfer.  Those are the only two rules that we need to determine who owns a resource over which there could be a dispute.  So the problem with intellectual property is it comes up with a third rule, and it says that you own someone else’s property if you came up with an idea that is similar to the way they’re using their property.  So basically it amounts to legalized theft.  Vin, do I have more time, or is that my five minutes?

00:11:41

VIN ARMANI: You have about 45 seconds left.

00:11:45

STEPHAN KINSELLA: Okay, I’ll just say quickly one thing, and I can address this later if I have more time.  The mistake Craig is making is he’s assuming that creation is a source of ownership, and that’s completely incorrect.  In fact, he gave an example of putting a fence up or something around land and creating intellectual property.  Of course, land has nothing to do with intellectual property.

00:12:05

It is true that the human intellect and innovation and ingenuity went into the activity of doing that, but the land is not intellectual property at all.  Creation is a source of wealth.  That’s what people need to understand.  What creation means is you own a resource, that is, a scarce, physical, material thing, and then you use your intellect and your labor and your effort to modify that thing.  And therefore, you make it more valuable to you or to your customers, and therefore, you’ve created wealth, but no new property rights arose from that.  If you fashion raw iron that you own into a horseshoe, you’ve created wealth, but you’ve not created any property rights.  So creation is not a source of property rights, and that is a fundamental mistake that undercuts a lot of the arguments for intellectual property rights.

00:12:52

VIN ARMANI: All right, excellent.  Thank you, Stephan.  The first question now in this back-and-forth round will be to you.  You’ll have five minutes.  Craig will have up to five minutes to rebut, and then the reverse will happen on the next question.  So Stephan, thank you for that definition of terms.  But I really want to get into the question of whether or not intellectual property law is legitimate.  So my question to you is you’ve argued in your work that intellectual property, as an institution, is illegitimate on ethical, legal, and cultural grounds.  Can you please expand on why this is true?

00:13:35

STEPHAN KINSELLA: Well, that’s the argument I just gave basically, and I don’t know if I made many cultural arguments except for the distorting effect of copyright on culture and trademark as well.  But in that case, I’m just pointing to the negative consequences of an unjust law.  From my perspective, the fundamental question is an ethical one, and it’s in the question of what’s right and wrong, what’s just.

00:13:59

The people who argue for IP normally do so in a confusing fashion.  They mix together two fundamental arguments.  One is a more principled argument like Craig is trying to make, which is this Lockian argument that if you create something, you own it.  That’s transparently false, however, because number one, if patents and copyrights or inventions and artistic works were legitimate, ownable things, then the patent and copyrights should not expire after a fixed amount of time like 17 years for patents and 100+ years for copyrights.

00:14:31

They would last forever in perpetuity, and I hope Dr. Wright would not propose that because that would just make it even worse.  So if they expire arbitrarily after a certain time, they’re definitely not like normal property rights, which is why the word intellectual is put in front of them.  And then the other argument that they make is that utilitarian or empirical one that it enhances innovation.  It enhances the wealth of the world.  It causes more creations to come into being.

00:14:57

And as I said before, that is not the purpose of law.  The purpose of law is not to go around passing around laws to tinker around with things, giving people special rights to incentivize them to act in a better way so as to have more innovation.  The purpose of law is to do justice, and the way they do justice is to respect people’s property rights and to enforce those.

00:15:17

So any law that undercuts the basic Lockian libertarian property underpinnings of our system is unjust because it basically takes people’s property.  In a sense, it makes everyone else a slave of other people.  If I am not free to use my factory to make an iPhone knockoff let’s say, my rights to use my physical property as I wish are being violated.  I have never agreed to a negative servitude.  I’ve never agreed to a restrictive covenant where I can’t use my property a certain way.

00:15:50

I’m not causing trespass against someone else’s property when I use my property to make a competing automobile or car or watch or phone, and therefore hampering my freedom is a violation of my human rights.  If you tell me I can’t write a sequel to a novel or make a movie or express myself as I see fit because it violates someone’s copyright, you’re restricting my freedom of speech and the freedom of the press, freedom of expression and communication.

00:16:17

These are all things that libertarian law would oppose.  Libertarians should be in favor of people’s freedom to do whatever they want with their property as long as they don’t violate the rights of.  That means trespass against the property of another.  It has nothing to do with how much innovation we’re getting and things like that.  And to that point, we’ve had about 200 years of modern copyright and patent law.

00:16:39

We’ve had enough time for the advocates of it to prove, to come up with clear, empirical proof, not anecdotes like Dr. Wright has come up with clear proof that the patent system, for example, does result in greater innovation, the value of which is greater than the cost of the system, and believe me, the cost is tremendous.  Billions and billions of dollars are spent on lawyers like me every year.  Lots of research has never gone into it because you wouldn’t be able to sell a product because of patent thickets.  So the cost of the patent system is severe and huge.  I believe it’s on the order of trillions of dollars per year of lost innovation that we could otherwise have.

00:17:16

And in these 200 years, none of the advocates of IP have ever been able to come up with a clear empirical case that it does benefit us that the amount of value that is created by these new innovations allegedly stimulated is positive or what the value is.  They should be able to tell us what the value is, and they never can.  In fact, all of studies indicate that the patent system hinders and hampers innovation, and thus impoverishes the world and makes us worse off.

00:17:44

We’re living in a technologically inferior world today, which hurts everyone’s lives because of the patent system.  It should be abolished immediately.  I’ve been doing patents for over 20 years now.  And I have never seen a clear case of all the patents I’ve written where the invention patented was invented because of the patent system.  Instead, it’s come up with because of a necessity to solve a problem and to sell a product, and then they run to the lawyers to get a monopoly on it because they can, which further wastes the time of inventors and engineers.

00:18:17

So that’s my argument for it.  It’s destructive of human life, it’s destructive of innovation, and it censors free thought and free speech, and therefore, I’m completely and totally against patent and copyright.  And there are other arguments for trademark, trade secret, and defamation law, but they’re different in their own rights, and I can’t get to that right now.  I’ll rest here.

00:18:34

00:18:38

VIN ARMANI: Thank you very much.  So Dr. Wright, if you would like to rebut that, you have up to five minutes to do so.  Just to remind you, I know that you did get into some questions of utility on this last question.  Just to remind you, Dr. Wright, that you will have an opportunity to speak on utility directly after this.  But if you would like to rebut any of the statements made by Mr. Kinsella, you have up to five minutes to do that now.

00:19:07

1. CRAIG WRIGHT: Certainly. What I’ll first note is most of the arguments we’re hearing are circular. Intellectual property is not property because it’s not property because it’s not property.  Effectively, what we’re doing is we’re finding a circular argument about why it’s not.  We’re saying it’s not Lockian, so therefore, it can’t exist.  We have agreements within people.  We have agreements within society, and some of the claims are just plain false.  We have this idea that nothing has been done and that my anecdotes are there.

00:19:39

Mine aren’t anecdotes.  They’re very well-researched, NBER, etc.  Most countries around the world have a lot of publications with a lot of data.  And so what happens is we get this idea that it’s just empirical.  So that was a comment I heard back from Mr. Kinsella.  It’s just empirical.  I have a Twitter.  Now, the reality is we have a lot of data with natural experiments with the reduction of these laws, which led in every case, in every single country, not one, every one, 100% with a high R-squared value against this.

00:20:24

What we have is, in India, with the reduction of IP protection, IP dried up.  Basically, the only IP law that ended up being enforced was against large organizations building their own patents in their own area.  We then had China.  We then had Singapore.  We then had many, many countries, and we’ve even had ones lately in Africa.  Over the last few years, we’ve had new experiments in these countries where, with the opening of IP law and basically because of WTA sort of constraints, the implementation of all of this, we’ve actually seen up to 60% increases in the amount of intellectual property growth.

00:21:11

So this claim that that’s not true is absolutely false, not anecdotally.  There are over 2000 studies that I know of, not one, not two, over 2000.  And not a single one of those refutes these things.  What you get, self-serving papers where someone has an experiment, not reality, they create a game scenario.  And they say it doesn’t work because.  They don’t test it on real human action.  They don’t see what actually happens, so there’s a difference.

00:21:49

We also have this disingenuous idea that we have 200 years of copyright.  We don’t.  There was actually copyright, as I’ve been pointing out, in the lex judica, in – well, basically the 4^th century A.D. in Rome, copyright existed.  Patent existed.  Letters of patent go back 3000 years that we know of.  So we have the whole idea of what is a letter of patent.  Every city in Europe that was actually founded after Rome fell was done so, if it wasn’t going to be collapsed in a small amount of time, under a letter of patent.

00:22:34

Guilds were often in letter of patents, so this is actually quite – not new.  I’m not advocating guilds and whatever else.  And at the same time, there are many sort of bad areas about law, but the idea that something that is basically baby in the bathwater and we have to throw it all out because something is not ideal doesn’t mean that the law is not good.

00:22:59

Now, what is law?  At the same time, we have agreements between individuals.  Saying that individuals cannot, in their own terms, agree laws, that is wrong.  I will say, quite frankly, if a community, a society decides that these are the laws we think work best for us, that is the law that should be there as long as they don’t infringe on certain basic rights that we have.  Now, this idea that you’re infringing on the rights of people because of their IP, well, I’m also being infringed as a creator if someone takes my ideas and just uses them.

00:23:47

I have the right to take my creation and use it however I will.  I don’t own a horseshoe because I own a horseshoe.  I own a horseshoe because I somehow have the iron, which means someone else dug it out of the earth.  I didn’t do that myself.  I got it from someone, and then I created using it, and I created value in society.  I actually create value.  It doesn’t just suddenly appear otherwise.  That taking of a raw lump of iron and making it into a horseshoe is value creation.  Now, the floor that some argue is that this is a Marxian idea, but the Marxian idea was actually basically that I have the right to the amount of effort.

00:24:40

VIN ARMANI: Dr. Wright, we’re going to hold it here.  It’s gone over time a little bit.  But you do – you can expand on that.  If you’d like to continue, you have another five minutes, and within that, what I do want to ask you though, I believe we’re getting into the utility question at this point.  Both of you obviously participate in the legal system in this way, so there is at least – regardless of Mr. Kinsella’s ethical issues with intellectual property, you both at least find some legitimacy in it enough to participate in that world.

00:25:16

My question, taking that legitimacy for granted perhaps, is about utility, and Dr. Wright, you’ve claimed that intellectual property laws serve a valuable place in the market.  You’ve claimed that they spur innovation.  You’ve claimed that they enable greater prosperity.  Can you please tell us what’s the mechanism by which this is occurring, not just the fact that it does, but could you expand and explain the mechanism that would be the evidence of this occurring please?  You’ve got five minutes on that.

00:25:48

CRAIG WRIGHT: Certainly. This is where I was mentioning things like trade secrets. Now, due diligence, the value of trying to chase down thefts, whatever else, is actually very difficult.  Now, the idea of being able to know everything that’s occurred when you’re buying a company is nearly impossible.  I’m sorry, but I don’t care how good your idea is, if you have it written down on a piece of paper and you’re coming to someone for funding or whatever else, then there is no way that funder knows that your idea has not been stolen, has not been copied, has not been anything else no matter how many agreements you actually sign.

00:26:27

We saw with the resignation of the CTO of Oculus following the allegations and then legal cases between ZeniMax that this actually can be something that even large incumbent corporations such as Facebook have no way of tracing down.  Now, Facebook and Google, which are another example, Google Waymo and [indiscernible_00:26:53] and I don’t name these companies, so I’m sorry about the ridiculous IP names that we have.  But any of these end up in court, not because of patents but because of trade secrets, people having intellectual property that has been stolen, not because it’s been copied fairly or whatever else, but under agreement they’ve taken it to a third party.

00:27:18

All of these are sources of uncertainty, not just mild uncertainty, but in the cases there, billions and billions of dollars.  So all of these where we’ve had trademarks, secrets stolen or whatever else, we easily see that there would have been much more certainty in the market.  So if you have a valid patent that has gone through the process and has been tested and whatever else, then what you’re going to find is more certainty, not less.  So this argument that everything is uncertain is actually, well, not real.

00:27:55

I can tell you with my company or sort of the company that I’m with.  I won’t say my.  I founded it, but that’s it.  With Jimmy up there and others and myself, we look at proposals all the time, so we’re becoming VCs or vulture capitalists if you will, like I’ve had to deal with VCs before, so call ourselves even vulture capitalists.  If you actually want to go out there and be certain, you need to know about what you’re investing in.  And I don’t care how many signatures you get from how many people in an organization, people will do whatever they can to get funding in desperate times.

00:28:36

Compare that to how much certainty you get comparatively, and I know the claims about only 2% of patents make money.  The actual statements of real scenarios are about 50%, or they’re making money probably means 1% over the total investment.  And the number that go to court is actually far lower than have occurred.  The reality is with the number of filed cases, if we take how many court cases actually go on the tickets every year and consider that against the other, you would expect one year’s worth of patent filing to end up with 1000 years worth of court cases.

00:29:19

That doesn’t happen.  The reality is, I’m sorry; there are very few patent infringement cases.  There are some cases that make a lot of money.  There are some that are obviously foolish.  There are some patent trolls, but a lot of these really come down to other problems in the system.  They come down to the misalignment of how people can get funding for litigation.  They come down to other things such as this.  How am I going for time, by the way, Vin?

00:29:51

VIN ARMANI: You have about one minute left.

00:29:55

CRAIG WRIGHT: Great. So what we’re looking at is IP law is really about an intermixing of human ingenuity and creativity. That’s what we’re talking about.  It’s a compromise between different stakeholders and different values and outcomes.  So I admit and I’m not the first to do this, that when we have old 1970-type models of patents and copyright laws, they’re wrong.  They need to be updated.  But that doesn’t mean you can’t have law, you can’t have agreement, and communities themselves can actually form agreement.

00:30:32

And this idea that I have to be told how I’m going to sell my own product, I’m sorry; that’s just wrong.  I do not live in Stalin’s world.  I don’t really care.  I make something.  It is mine.  If I choose to give it away freely, I choose to give it away freely.  If I make something, I, me, if I work under contract, I chose to work under contract.  I’m not a slave.  I own my rights.  Everyone who is forced to give up their rights, that is slavery.  Thank you.

00:31:15

VIN ARMANI: All right, thank you very much for that.  Mr. Kinsella, you have five minutes to rebut, and then I will have immediately a question for you after that, so Mr. Kinsella.

00:31:26

STEPHAN KINSELLA: All right, I can just – in five minutes I can only do so much.  Quickly, I refer listeners to my website, C4SIF.org.  Just go to the slash AIP page and look at my post of “The Empirical Case Against Patents.”  The empirical evidence is just overwhelming.  There are no studies that Dr. Wright is referring to.  Most recently, the economists Boldrin and Levine have a paper on patents where they exhaustively studied the data, and they said the case against patents can be summarized briefly.  There is no empirical evidence that they serve to increase innovation and productivity unless you identify it with the number of patents awarded but not with innovation itself.

00:32:10

As for communist and socialist, in my view, if you read Hans-Hermann Hoppe’s Theory of Socialism and Capitalism, he identifies the essence of socialism, which is the institutionalized interference with private property rights and private property claims.  And intellectual property law does that.  So it is actually intellectual property law that is socialist because it amounts to a taking of private property rights.  As for the self-serving argument, I’m a patent attorney, so it would be in my interest to favor the system, but instead I call for its abolition.

00:32:40

As for the host’s idea that because I participate in the system I endorse its legitimacy, that would be like saying an attorney representing a defendant accused of a drug crime agrees with the drug system, or that an oncologist agrees that there should be cancer because they’re fighting to stop them.  I totally reject that.  As for copyright and patent existing long before 200 years ago, I’m well aware of that.  I said specifically the modern copyright system, which did start with the US Constitution in 1790/1791 with the patent and copyright laws.

00:33:14

But they were modeled after the earlier laws, which Dr. Wright mentions, like the practice of monarchs and states granting letters of patent, which were clearly protectionist, mercantilist, anti-competitive monopoly privilege grants, so I don’t think that helps him.  The Statute of Monopolies in 1623 in England is what is the early basis of US patent law.  Get it?  It’s a monopoly.  We’re against state-granted monopolies.  The Statute of Anne in 1709 is where modern copyright law came from, but there are, of course, antecedents before that.

00:33:47

Even in 500 B.C. there was the Greek city state of Sybaris where there was a cooking competition, and whoever won would have a monopoly on making that dish for a year.  So there are, of course, antecedents.  There have always been people that have been trying to reduce competition and who hate the free market. [Update: see Michael Witty, “Athenaeus describes the most ancient intellectual property” (2018)]

00:34:03

As for uncertainty, the certainty of patents is ridiculous.  The system is based upon totally non-objective principles.  It’s run by a government bureaucracy, and patent and copyright law in particular are the creatures of legislation and statute.  They could never have arisen on a common law or private property-based system.  And it is actually having a legislation-based state that causes uncertainty, as Hans-Hermann Hoppe has written about, and as I’ve written about in my long paper in the 1995 JLS on legislation and uncertainty because the very existence of a legislation – a legislator – what’s the word I’m looking for?  The legislature – the existence of a legislature makes you uncertain about what the laws will be in the future because they can change the law from day to day.

00:34:49

As the saying goes, when the legislature is in session, no man’s property is safe.  As for not throwing the baby out with the bathwater, you do want to do that if it’s Rosemary’s baby we’re talking about, and that is what patent and copyright are.  Briefly, I can say as for trademark, and I elaborate on this in my papers, but I can briefly explain the reason why trademark and trade secret and defamation law are illegitimate.  Trademark law basically grants reputation rights, and as Rothbard explained in his argument against defamation law, which says something similar, you can’t own your reputation because that is what other people think about you.

00:35:27

And if you have a right to your reputation, that means you have a right to what other people think about you, which means you have a partial ownership of their brain, which means they’re your slave.  So defamation law is completely illegitimate as is trademark law, which has a similar type of argument.  Trade secret law is illegitimate because you don’t need a law to keep things secret.

00:35:46

You have the right to keep whatever you want secret.  What trade secret law does is it gives the so-called owner of a trade secret, which is just information that’s held private and confidential and it gives you some competitive advantage in the marketplace as long as it’s held confidential.  It gives you the right to go to a court to get an injunction to use state force against, not just your employees who left and who are revealing the information, which could be covered by contract law alone.  It gives you a right to go against third parties who are not parties to any contract, and that is wrong as well.

00:36:17

And an example of that is when the Apple iPhone 4 I believe was left on a bar by a careless employee.  And some guy found it, and a couple of days later, the feds, with Apple employees, burst into this guy’s apartment under the auspices of trade secret law to take it back from him so…

00:36:36

VIN ARMANI: We’re at five minutes now, Stephan.  Thank you.

00:36:41

STEPHAN KINSELLA: I’ll close there.

00:36:42

VIN ARMANI: And, of course, there – after this round of questioning, you will also both have closing statements, so you can pick it back up from there.  So now what I’m going to do, with no rebuttal on either side, I’ll start with Stephan Kinsella.  I’m going to ask questions.  You will have five minutes each.  These are just things that I’ve pulled out myself, questions that I have from statements that you’ve made in the debate so far.

00:37:10

So Stephan, in your opening statement, you explicitly said that intellectual property censors free speech, and I think in a way you may have alluded to that just now as well with your statements about defamation.  That’s a pretty strong claim, especially for people’s understanding in the west of the value of free speech.  Do you stand by that?  Will you expand on why you believe there’s an equivalence there?

00:37:39

STEPHAN KINSELLA: Absolutely.  In fact, I can give some examples, and I’ll mention a few from the top of my head here, but if people want more examples, go to my website, C4SIF.org/aip, which means against intellectual property.  And look for my post about the trade – the copyright and patent horror files, and I just detail some examples.  I stopped collecting them about ten years ago because there are just too many, but certainly.

00:38:05

There are some notorious cases where trademark or copyright law have been used to threaten people not to perform certain yoga moves.  That’s moving your body in a certain way.  There’s been threats against people with certain tattoos or designs on their faces because the tattoo has a copyright.  What are they going to do?  Be forced into court and told to have their face re-tattooed?

00:38:25

The fundamental fact is that you can’t – you are – it is a criminal violation to print certain works that are said to infringe copyright.  You can go to jail.  In fact, Kim Dotcom is still facing extradition to the US because of having a website with hyperlinks on it.  There was a grad student in England called James Dwyer I believe, D-W-Y-E-R, who simply had a website with hyperlinks pointing to someone else’s site that hosted pirated content.

00:38:55

And the US tried to extradite him to come to the US to face criminal – federal criminal charges.  It ruined his grad school career for several years.  There was a sequel written to The Catcher in the Rye, and the estate of the author took this guy to federal court in the US—this was a few decades ago—and got the book banned.  The court ordered the book to be never published and destroyed.  This is literally book banning by the courts in the name of copyright.

00:39:26

The famous vampire movie, Nosferatu, was held by a court to have infringed the copyrights of the estate of Bram Stoker, Dracula, and copies of the movie were ordered burned and destroyed.  I think a few survived luckily, so we now have it.  So there’s any number of cases.  Oh, one of the pioneers of internet technology Aaron Swartz, the poor guy uploaded some papers, academic papers to the internet because they’re behind these stupid pay walls.  And he was facing decades in federal prison, and he committed suicide.  It was one of the most tragic cases.

00:40:03

And then you have milquetoast advocates for copyright reform who want to be mavericks like – I’m not going to mention names, but it’s easy to find, saying that, well, he should have gotten some punishment, but that was too severe.  Well, I think these people bear some complicity in the death of this poor guy.  You have to be for total copyright abolition.  Of course it censors free speech.  If I wanted to make a movie or if I want to write a novel and include sections from someone else, I should have every right to do so.

00:40:32

And I would just say one more thing.  You’ll notice that the advocates of copyright and patent law, they will mix together arguments, the creation argument Dr. Wright is doing and then the utilitarian argument, and they just mix these things together.  And then they’ll also throw in things like fraud and plagiarism, which – like, for example, if I sell a bootleg copy of a novel, they say, well, that’s fraud.  Well, it’s not fraud.  I’m not pretending to be the author.  It’s not plagiarism.  Plagiarism is not even illegal.

00:40:57

If I wanted to make a copy of the Bible tomorrow and put my name on it, or if I wanted to publish Stephan Kinsella’s Romeo and Juliet tomorrow, I would be looked at as a fool, but it’s not a copyright violation because the copyright is long expired.  So plagiarism has literally nothing to do with copyright.  And believe me, the owners of vast archives of copyrighted material would not be happy if the pirates simply didn’t put their own names on it and kept the original creator’s name on it.  That’s not what they want.  They want to stop you from copying, so absolutely.

00:41:29

In fact, I think that the patent system does far more physical damage to the human race in terms of monetary damage and lost innovation, probably trillions a year.  I mean we could be having flying cars by now or something if not for the patent system hampering innovation over the last 200 years.  But the copyright system I think is arguably worse because the patents last a – I mean the copyrights last a lot longer, and they’re threatening internet freedom.

00:41:54

And the internet is the greatest tool that we have to fight the state I believe because we have communication, and it’s decentralized.  And we can get around the state this way, and if anything threatens the freedom on the internet, it’s a big danger to human freedom, and it aids the state.  And copyright is being used with these six-strikes-and-you’re-out laws and these YouTube takedown notices with the ICE system seizing websites, taking them down for having pirated content.  Anything that threatens internet freedom is a severe threat to human liberty, and libertarians should recoil in terror and fear from copyright law for that reason.  So the copyright law is very insidious and extremely evil, and the patent system does more actual tangible damage in my opinion.

00:42:35

00:42:40

CRAIG WRIGHT: We can’t hear you, Vin.

00:42:42

STEPHAN KINSELLA: Can’t hear you.

00:42:43

VIN ARMANI: I’m sorry.  I was so dialed in.  Dr. Wright, we have been – this question is now for you.  We’ve been talking in this debate about some pretty high-level philosophical principles.  I want to bring it down to some specifics, specifically for you here.  You’ve argued throughout this debate that IP spurs – has a utilitarian value in spurring innovation and creating more prosperity.

00:43:13

But your critics—myself included—argue that one of the major reasons for the growth of blockchain technology and Bitcoin specifically is due to the open-source nature of the space and the lack of intellectual property.  So I want to ask you, with this space specifically in mind, why do you believe that IP is appropriate for this space since you yourself are pursuing patents in this space?

00:43:42

CRAIG WRIGHT: Money is very simply information. Now, this idea that all information needs to be free or whatever else is false. All information doesn’t need to be free, and it comes at a cost.  It’s scarce.  If you just have everything, you have data.  You don’t have information.  If I copy every single paper ever created, I do not have information.  I have data.  There’s a big difference there.  Actionable information matters.  Now, when we’re talking about some of these things, what we’re talking about is an individual right to use things.  Now, the creator can choose.  Now, we haven’t seen this space grow as it should.

00:44:27

We’ve actually seen it grow a lot smaller and be fragmented.  We’ve seen many [indiscernible_00:44:32].  We’ve seen the splitting of the system.  And our target isn’t really each other.  It shouldn’t be.  Instead of splitting up everything that people want and sort of being small and divided, what we should do is not have everyone attacking the corners but rather looking at our one enemy and our one true – something we need to fight.  We need to take on Visa.  We need to take on PayPal.  We then need to look at the central banks, not banks because banks can actually have a function when they aren’t sort of hampered by the regulations that we have.  We need to have a space where individual players can actually form something – an individual – basically a system that will grow and not fragment.

00:45:24

Everyone else wants it to fragment.  The banks want it to fragment.  The central banks want it to fragment.  They want millions of these because then each is controllable.  So right now, what we have is a system that is becoming very easy to regulate, very easy to get around, very easy for governments to start putting their thumb down on.

00:45:45

We have gone from a system that at one stage was the one, not centralized as people say.  Being one doesn’t make centrality in the way that people argue.  One money isn’t bad.  One money actually allows anyone on Earth to start actively engaging in trade.  And that doesn’t stop competition.  It doesn’t stop people doing things.  It doesn’t stop new nodes in Bitcoin unlimited, in Bitcoin ABC, in our software, etc. that we have.  That’s competition, and even though it’s on the same blockchain with Bitcoin Cash, we have six different players all doing the same thing, proposing different things, saving up different scripts.

00:46:34

So the reality is you can actually have these things and can actually limit it.  So I have things that I don’t care whether people say they’re – someone else will think of them.  They haven’t.  Still, we filed our patents.  No one else has been doing it.  No one else has come up with a solution to some of the things we’re releasing this year as much as everyone else has been trying, as much as Core have been sitting there saying we’ll find a way.  We have, and that cost us a lot of money.  It cost a lot of time, and this idea that if everything was just going to be given away we would still invent is wrong, this idea that the evidence shows things.

00:47:24

As Mr. Kinsella showed, there are studies.  Unfortunately, what he’s not pointing out those studies are computer models.  Those studies aren’t actual real-life, actual human action.  No studies existing – I’ve pointed there’s at least 2000 studies, not small studies, at least 2000.  There are ones in Africa, ones in India, ones in wherever else.  Why is this going to take off?  Not because there are 600 forms of money in a particular country.  No bimetal system works.  Governments put in bimetallism.  Natural life doesn’t.  We had silver acted as a metal in most of Rome.

00:48:14

Silver acted as a metal in most of China, not with gold or the other until the government stepped in.  It’s when the government steps in and we start saying what will be money that it changes.  This is legal tender.  You must use it.  When people have a choice, they choose what’s easiest.  And trying to balance between 50 different currencies is not ever the easiest.  So we can say all these things about why it’s good, bad, or indifferent.

00:48:45

But the truth of the matter is what we’re trying to do is open up innovation, and that doesn’t happen by allowing fragmentation.  It doesn’t happen by having lots of small projects that have no link anymore.  All of this happened not because of control being sort of diversified.  It happens because a few small groups decided for the rest.  So this idea that everything was free, well, it’s not.  But it was put out there, and other people can compete.  But that doesn’t mean that you had open access to the Bitcoin code to do whatever you want.  We didn’t.

00:49:28

VIN ARMANI: We’re going to leave it there, but since – actually, if you would like, Dr. Wright, I think at this point what we’re going to do is we’re going to grab a closing statement from each one of you.  Since Stephan started, then we will have you, Craig, finish it.  Start on this last thing, and then, Stephan, you can have the last word on this.  So there’s been a lot that we’ve covered and some things that obviously we have not gotten into.  So any final thoughts that you have, Dr. Wright?  You are first up on this.  You will have five minutes, and then, Mr. Kinsella, you will be after that.

00:50:11

CRAIG WRIGHT: Okay. First of all, I’m going to rebut a couple of bits like this Swarz case. The Swarz case was actually not about copyright.  That is the defense.  That is free speech needs to be out there.  The reality was that a physical system was broken into.  A physical system was accessed.  Electronic controls were bypassed because someone broke into a building, accessed security controls, and then physically altered a machine so that they could actually copy things remotely to a person in Canada.

00:50:48

They re-cabled systems.  They broke systems.  Basically, the argument is it should be okay because it’s free speech to break into your house.  That’s what Mr. Kinsella’s argument here is.  Well, your front door wasn’t secured enough.  I mean, well, yes.  You have a lock, but I’m sorry, I got to drill through it, blow up the hinge, and then basically go in there and do what I want.  So therefore, after I set the webcam up in your house and embarrassed you by posting all the pictures of you having sex with your wife, that’s okay because, well, it’s your responsibility to protect your system, so therefore, the end.

00:51:34

We then have the Apple case.  What we have is theft.  We have this thing called theft by finding.  It’s a type of larceny.  If you actively identify the owner of a product, not you’ve looked for them and decided you couldn’t, then you have committed theft.  This goes back to common law.  We’re not talking anything new, so the disingenuous statements about how none of this existed by Mr. Kinsella over there is basically taking out of context the fact that all of this goes back to common law.

00:52:10

When I mentioned republic in Rome and those laws, these were actually enacted in what was equivalent to common law of the time.  It was judicial law that was handed down the same way it was in early Europe, in early Saxon Europe that was, where different people would go on a circuit and be a magistrate for a time, and the law would evolve, not written—common law.  Even Rome started with common law.  Everyone remembers Rome as this authoritarian state with an emperor.  It wasn’t.  Before the time of Marcius, Rome was actually a republic, which is a different thing all together.  And before that, they had law.  They had law that was dictated in a common law sense.

00:53:04

So we have this little fact here that even without contract, that third party who grabbed and broke into that device, they didn’t just find it.  They didn’t just take it away.  They physically took someone else’s property, the Lockian argument that Mr. Kinsella keeps using.  They took that property and accessed it.  They violated that person’s physical property rights to gain access to intellectual property.

00:53:37

By Mr. Kinsella’s own argument where he has claimed property rights are physical, he has put an example where someone has physically stolen goods, gone off intentionally because it’s a new product, and sought to sell them on market knowing, not just suspecting, knowing after breaking in that this was stolen property.  If you received stolen property and you sell it on, you and the person who knowingly receives it are in breach.  What libertarian here will say that the receipt of stolen property is okay?  I dare any libertarian to say you have the right to steal my car because you could get in there and joyride.

00:54:31

I dare you to tell me that one.  I dare you to say my goods are yours to do what you want with.  So we have a case here where we have lots of evidence according to Mr. Kinsella’s site, lots of evidence of studies.  I can make a computer model that says anything.  Computer models aren’t reality.  This is the old argument that goes back to our friend Mises.  Mises didn’t like all these mathematical models that were used by people like Keynes for a reason.

00:55:04

He didn’t like them because they weren’t honest because you could make them say anything you want.  When you look at econometric models and you start tweaking how they’re going to work, small changes make very radical differences.  And as for none of this being available, I’m going to put it all up on a website.  I’m going to actually start populating all of this.  For every one of his, I’m going to do ten.  For every one of those things, I’m going to put a model so that you can tweak and see what happens.

00:55:40

VIN ARMANI: We’re going to leave it there.  Thank you, Dr. Wright.  Stephan Kinsella, you are going to have the last word in this debate, and you have five minutes to do so, sir.

00:55:54

STEPHAN KINSELLA: All right, just quickly I’ll hit on a few things before the main meat.  But if Swarz committed trespass, then he could have been punished under regular trespass law, but he was facing criminal copyright charges of decades in federal prison, which is clearly unjust.

00:56:08

As for the Apple case, yes, it was Apple’s property.  They had a right to get it back.  My point was to show that trade secret law can affect third parties.  Trade secret law was actually used in that case, not some kind of property law, which should have been the law used.  As for the history of copyright and all this stuff, I would refer people to an article.  It’s on my site, C4SIF.org/resources.  It’s by Karl Fogel.  It’s “The Surprising History of Copyright.”  So it’s a very illuminating description of the history of this whole area of copyright.

00:56:41

And I’d like to say I agree with Dr. Wright on a couple of things, which is good.  I agree with him that one money is possible and maybe desirable, and I agree that information doesn’t have to be free.  If information – if someone wants to keep information private, they have certainly a right to do so.  But when you put a product into the stream of commerce that has publicly accessible features like the design of an iPhone, you make that information public.

00:57:09

When you publish a novel and decide to publish it, the information is out there, and then you can’t tell people what not – that they can’t use the information that they’ve learned from you.  It is absolutely clear that libertarians who believe in the basic principles of property rights in tangible scarce resources like I think we do, we believe that people have the right to own their bodies and their cars and their houses.  If you believe in those rights, then it is clear that any system that undercuts those rights and that is at least prima facie a violation, the burden is on the person presenting it.

00:57:43

The burden is not on me to show that copyright and patent law are invalid just because we have those systems because, after all, we’ve had slavery in the past, and we’ve had a drug war.  We’ve had taxation and wars and the Federal Reserve and government schools, lots of laws that exist which are clearly unjust.  The burden is on someone to justify those laws, and you have simply given no argument for intellectual property law.  And, in fact, there are no good arguments for intellectual property law if you accept the basic principles of property rights.

00:58:10

As for the studies you talked about, I would just refer people to the book, Against Intellectual Monopoly by Boldrin and Levine, which is online for free.  It’s linked at my website, and it’s on their site, AgainstMonopoly.org.  They exhaustively go through the empirical argument that your side has to put on.  The burden is on you.  And the evidence is not in the form of computer studies.  I only know of one study on my site by Andrew Torrance which is a computer model.  All the others are looking at the evidence that’s presented and looking at the evidence that was produced by advocates of IP and showing that it was a bad argument being made.

00:58:47

So what I would like to emphasize is that we have to realize that, as libertarians, as people who believe in property rights and justice and the free market, we are in favor of competition.  We’re not against competition.  We’re not afraid of competition.  We’re in favor of the acquisition of knowledge and the sharing of knowledge and the learning of knowledge and emulating what other people do and competing with other people.  Competing is good, learning is good, and emulating other people is good, and the free market is good, and we should oppose any system that interferes with free market competition, which is what patent and copyright law do.

00:59:23

00:59:26

VIN ARMANI: Excellent.  Thank you both.  I just want to say, gentlemen, this was wonderful that – and I want to thank you both and I think the audience would like to thank you for putting this on with such short notice.  I think it’s a testament to both of your integrity to step out of the online world of Twitter and to sit down with each other and to actually hash this out.  So I want to really just solute you both for that; eye-opening debate.  I thank you guys for this.

00:59:58

I don’t know that the issue is settled.  I’m telling you I’m looking through the comments, and it seems that both of you have made some strong arguments, and it seems that the audience feels that way.  We’ll have to go back on the look-back through this, but I want to thank you both for this, and I’m sure that I will get a chance to interact with both of you in person.  But thank you both for this, and have a great rest of your evening there in London, guys.

01:00:24

CRAIG WRIGHT: Thank you very much.

01:00:25

STEPHAN KINSELLA: Thanks.

01:00:26

❧

Comments from original youtube video:

N. Stephan Kinsella

0 seconds ago

Video with captions here https://youtu.be/5ckcdnD9lFw . Podcast at https://stephankinsella.com/paf-podcast/kol234-vin-armani-show-live-from-london-kinsella-v-craig-wright-on-intellectual-property/

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abram galler

3 years ago

If intellectual property were abolished within a few weeks it would disappear from memory .

8

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Tommy Boyle and the Party of One

3 years ago

“No, you’re the socialist!” -Every libertarian debate ever

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REPLY

 

Tusk Bilasimo

3 years ago

As usual when you put Fake Satoshi up against a credible expert, he comes up short

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motech man

3 years ago

I won’t comment on the topic, but I want to give Vin major kudos and thanks for the way you presented this debate. I love that you positioned yourself between the two debaters, I love how you moderated and structured it, how you display the 5 timer (too bad participants couldn’t see it too). Such a well done video and a useful work Vin!

5

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N. Stephan Kinsella

3 years ago

He was great, and yes, we could not see the timer!

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Kiwi AustEcon

3 years ago

I really respect both of these men. Love them both. Two of my favourite intellectuals. Just wanted to say this as context to my comments below

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Mate 20x

2 years ago

Lol! Mr. Stephan got OWNED by Mr. Nakamoto!! ????????????

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Noble Phoenix

2 months ago

Stephan owned it. Glad people like him are dedicating their time to Liberty and freedom.

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John Anonymous

3 years ago (edited)

I don’t like these type of debates anymore. I want interaction. Kinsella should just talk with Wright sometime, for an hour or two, and go trough the arguments together back and forth. Now we’re only listening to the arguments we already know (well, the people who are familiar with Kinsella). Kinsella won of course, hands down.

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N. Stephan Kinsella

3 years ago

I wanted a free-for-all but the opponent and moderator dug their heels in and insisted on the rigid, boring format.

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John Anonymous

3 years ago

Figures. BTW, why did you ‘heart’ this Yevgeny guy on Twitter? He’s not someone you seem to agree with.

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Kiwi AustEcon

3 years ago (edited)

CSW says what we need is “for people to have a choice (about their money)” and “they’ll choose what’s easiest”, while also saying that “we need IP so that there is just one money instead of loads of different coins competing… He’s contradicting himself. Which is it? Free choice and competition? or Monopoly –> one money – all in. Cross your fingers and hope that we got it right with that one money.

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Ramon Quesada

6 months ago

Maybe you would like to have a full list of Craig Wright public videos in chronological order, here you are!!!! Any idea or suggestions are welcome!!! https://ramonquesada.com/english/craig-wright-videos/

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krishool

3 years ago

Bravo! Excellent moderation and solid arguments made by both parties. As to the morality of I.P. If a contractual agreement is made on the limitations of the use of a purchased I.P then it’s morally sound. In regards to the utility of I.P, I’m inclined to think that applying it in the block-chain would stifle innovation, however I could be wrong on that point.

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N. Stephan Kinsella

3 years ago

Exactly. You can’t get in rem (property) rights, which are good agains the world (which is what patent and copyright are) from in personam (contract) rights, which are good only as between the parties. Most people have a hard time understanding this, partly because they are naive about law, and partly because they never bother to define exactly what they mean by “intellectural property” rights or law.

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Kiwi AustEcon

3 years ago

What happens if someone patents crucial, key concepts for scaling BCH to the next level?? But then it gets mixed in with this segwit kind of trash or some other useles alt coin? How would CSW feel then aye?

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Daniel Roth

2 years ago

What is the point of a moderator if you don’t moderate?

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SunriseFestival

1 year ago

All your belongings is mine and i´m not paying for it – Kinsella

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David Parrish

9 months ago

Not at all what Kinsella said.

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Luc Chase

3 years ago (edited)

Would BCH definitely exist if Bitcoin/BTC had been patented? If no, would being stuck with BTC be a good thing? If yes, how?

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Vin Armani

3 years ago

Luc Chase BCH wouldn’t exist had Blockstream not controlled the narrative through censorship and stopped block size increases

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Kiwi AustEcon

3 years ago

Even though I think that “IP” should only be socially enforced (i.e. by loss of face, social status, ridicule, admiration etc. and maybe even dictionary-like social institutions that codify what is generally held to be the creators or main contributors to various fields of knowledge… I also kind of like how… if bitcoin cash does take over the world and allow us to rip governments out of our lives like the parasites that they are… we will have successfully used the state apparatus (IP law enforced by governments) AGAINST ITSELF UNTIL IT DIES BY ENFORCING THIS!

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Andy Rowe

3 years ago

There you are.

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Noble Phoenix

2 months ago

Ideas are not property. Property is physical.

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Wouter Vos

3 years ago (edited)

An idea is not scarce because if someone copies your idea, you don’t lose control of it. All you’ve lost is a monopoly on the use of that idea and monopolies are bad. They might not even have taken the idea from you, different people come up with the same idea on a regular basis. Earth is a big place with many people, an idea can take a long time to develop, two people could easily have the same idea. Increases in activity in copyright law aren’t good, decreases aren’t bad. Copyright and patents are government creations and would not exist in a free society. “I have a right to do anything I want with the idea’s I create” Not when you patent them, then you have to make them public after an arbitrary duration. You will have this right in a free society. But that doesn’t give you the restrict other people’s use of that idea.

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Andy Rowe

3 years ago

Everyone sounds good now.

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Laprisamata

3 years ago

Whereas I completely agree on an ideological level with Kinsella and the Austrian side of this debate, I have a great deal of respect for Dr. Wright. I don’t think that Dr. Wright is actually arguing for IP beyond using it as a justification for his next move in the context of the ‘Bitcoin Scaling Debate’. Despite being against my personal ideology, I completely understand why Dr. Wright has been pushed into this corner. We live in an IP world currently, and he can’t play the game he needs to without fighting fire with fire. Simply, he has to implement his stated strategy to undo the damage and corruption that has manifest at the hands of the Bitcoin Core development team. Whether that damage and corruption be through ‘malintent’, or through ignorance. In turn, the indecision by Bitcoin Core has resulted in the saturation of the crypto-space with pointless shitcoins, most of which have been created on the back of Ethereum, which only exists due to a fundamental misunderstanding of the original Bitcoin code, and a misunderstanding that lead to Ethereum’s particular implementation of Turing completeness and network topology.

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N. Stephan Kinsella

3 years ago

Except that he’s filed for dozens if not hundreds of patents on crypto tech, trying to control is using state coercion, so I think he’s trying to justify that horrible move too.

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uksuperrascal

3 years ago

Hi Vin – You Published on 24 Aug 2017, How To EASILY Upload Files To IPFS (The Interplanetary File System) I have been using IPFS and it worked ok till a windows update changed the non associated to anything files, install.sh and readme.md, Now both have been associated to notepad – I tried the regedit way of resetting but it did not work. and I can not run a dos ipfs deamon. Any Idea how to change the files back to them being non associated to anything. Anyone else have an idea or got the same problem?

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Vin Armani

3 years ago

uksuperrascal Can you please post this in the comments section of the appropriate video?

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barkingbandicoot

3 years ago

Question: From the Voluntaryist perspective; If all ethical human interaction is based on consent/contract. Does one not have the right to specify whatever terms and conditions when offering a product or service? A girl could offer you a naked jpg of herself on the condition that you do not copy and distribute it. The jpg is simply a collection of 0 & 1’s (pixel data). Are you bound to the contract or are you free to distribute it? If theft means that a person is deprived of property, then copying the jpg does not deprive the owner of the image. The owner still retains the image therefore no theft has occurred -??

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MonadTransformer

3 years ago

Craig is a software engineer with too many hobbies on the side, Stephan is a libertarian thinker & IP lawyer. They are not even in the same category in this “debate”. Craig is being absolutely destroyed here, and I am not sure he even has the skills to understand it. Now, same thing would happen if Stephan joined the Bitcoin scaling debate – and incidentally, he did. And again, same thing – Stephan is getting absolutely destroyed in any meaningful technical debate, but has no skills to understand it. I would suggest both folks should stick to what they actually know, since they are pretty good with it, and avoid the temptation to have hard opinions on anything outside their area of expertise.

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cent25

3 years ago

I’m not aware of stephan making any public statements on scaling debate.

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Wouter Vos

3 years ago

+MonadTransformer I love these debates, so what if someone doesn’t understand what they’re talking about? The only way to discover that is to have debates/discussions and express your idea’s. I thought Craig started off really well, even though his arguments held no water. He started from a libertarian perspective, so he’s very likely to have made arguments that are very popular with Libertarians, allowing Stephan to refute them. Apparently Vin Armani and Stephan Kinsella thought he was worth debating, what other requirement could you have?

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Jamie Peay

3 years ago (edited)

I know right? After Craig’s introduction and initial spiel, I couldn’t help but notice that it appeared as if Kinsella could barely contain his laughter.

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MrCharliers

3 years ago

patents are like guns.. think… full stop..

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Hwītehlāf

3 years ago

Wright did not make one solid argument. I’m not surprised.

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Carlos Castro Prieto

3 years ago

Not so impressed by Stephen Kinsella and with his previous interactions on Twitter with Craig Wright on this topic. I personally had a slight penchant against IP (after my readings from Mises Institute or Miguel Anxo Bastos), but not anymore, after reading and listening to Craig Wright’s much more compelling case. I would be glad to read many of those research papers mentioned that they promised to provide.

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Dr Sammy D

3 years ago

Rothbardians are too fixated on the natural law being the expression of the opinions by judges in their private law system. They should realize that judges will most likely express the preferences for fairness in their subscribers, which likely will include common thoughts of fairness surrounding intellectual property. Most people think 2-8 years is proper. That’s probably what judges will say.

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cent25

3 years ago

most of what wright said was just incomprehensible gibberish.

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N. Stephan Kinsella

3 years ago

Um, he had no case. He didn’t even define IP.

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Bloodluster

3 years ago (edited)

Should’ve just kept it simple instead of rambling in circles. 1. As long as law exists, there will be many fucked up cases whether in patent law or drug law, or what ever, that is unavoidable but doesn’t mean that we should have no law. 2. Intellectual property still has an important role, even in blockchain or no one would spend massive amounts of time, money, and manpower to research and develop new technologies if someone else can just steal it and use it for themselves. In this case, the very wealthy can just steal any idea/tech, hire their own people, and make a more popular variation since they have the marketing power. So the average joe will have no chance and desire to innovate. Just because intellectual property laws should exist for blockchain as well doesn’t mean it shouldn’t be updated/changed for this space. Maybe put a limit of 2 years for intellectual property in blockchain.

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N. Stephan Kinsella

3 years ago

You realize that’s in no wise any sort of justification for IP law, right?

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Noble Phoenix

2 months ago (edited)

Why 2 years and not 200 years or two days? I agree 2 years is better than the current one hundred ish years.

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Armando Anderson

3 years ago (edited)

Patent protection gives choice. The inventor can either give it away or exercise the protection by realizing the invention or simply do nothing. It’s the inventor’s choice and should have that right, especially if a substantial amount of time, money, effort, ingenuity, creativity, research, and experimentation was dedicated to it. They should be rewarded in the form of the patent. This gives more incentive to innovate and to lead. Otherwise, it pays just to wait and steal. Taking credit for someone’s invention is also stealing because there is market value in knowing who invented the invention. Consumers have the tendency to go with the originator with the underlying assumption that he/she is the most competent with delivering the invention to market. Otherwise, it is fraud. History becomes rewritten by the most powerful and innovative stealer. A working example of choice is in AI (Artificial Intelligence) research. A good chunk of AI researchers give their new ideas and algorithms away by immediately publishing them on the internet instead waiting for patents. They do this to speed up innovation and they know the sum of the parts far out weigh the few. But at least they have a choice. They have the option to license it, to sell it, to give it away, etc. Patent law gives them choice with whatever makes most sense. Elon Musk chose to give away his idea for the hyperloop and the blueprints for the early Tesla vehicles. But is he still giving away Tesla’s tech secrets? No, of course not because he needs to maintain a competitive edge. He only did it in the beginning to ensure the electric car industry will survive. This is choice.

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N. Stephan Kinsella

3 years ago

And we all know that the purpose of law is to “give people lots of choices”!! Brilliant! Why didn’t I think of that!

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Armando Anderson

3 years ago

Yup. Laws such as the freedom of speech as a good example. Another is the Bill of Rights and the Constitution. Preserves individual liberty while deterring the false notions of “the majority is always right” and “might makes right”.

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Armando Anderson

2 years ago

 @tark farhen  Government is not an all or nothing thing. Most government regulation should be left to the markets in general. But property rights including IP are individual liberties which empowered governments need to protect. This includes freedom of speech, protection against unlawful search and seizure, etc. where the majority cannot rule against. Prevents bullying and thus theft where “might makes right.” To say humans will share IP fairly with no laws to protect the inventor is a naive flawed assumption. Because there’s no incentive to be fair. The incentive is to bully and steal.

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Armando Anderson

2 years ago

 @tark farhen  Freedom of speech doesn’t have to be law? Reread the history books on the American revolution; the French Revolution; communism and the Bolshevik revolution; propaganda and control of media by Nazi Germany; etc. Visit China and the revival of communist party posters and surveillance. These are some reasons why humans have died to preserve freedom of speech and examples of oppression. You have lived in protected freedom and have no idea why. Government isn’t perfect. Democracy is messy. Without the constitution and Bill of rights, there is no freedom but only oppression you say you are against — free for all where the law is survival of the fittest. Human history has proved this over and over since the beginning. To think this generation is different is naive and ignorant. We are in an upswing of a new socialist cycle. Nothing new. Created by oceans of money printing by every central bank causing bubble after bubble of inflation where those who invest flourish while those who can’t (including savers) wither. Where the middle class disappear and the rich get richer. Gentrification becomes common. This is not capitalism but legalized counterfeiting. That’s why we need bitcoin cash. Sound money. Until the fiat machine is replaced, socialism and communism will rise. Expect more social unrest. Not less.

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Armando Anderson

2 years ago

 @tark farhen  Life is not binary. This all-or-none, good-or-bad, black-or-white, right-or-wrong, with-or-against-us thinking is what’s wrong with these debates. I’m for individual liberty and the protection of that liberty regardless what the majority thinks. Preserving liberty is not regulation. Preserving justice when one is murdered is not regulation. What I am for is patent protection. A logo, a style of shoe, song are not inventions. Patents protect inventors who invest years of research and development of something new technology that has not existed based on the laws of nature/science. Just because there are issues around copyright does not mean patent protection must be abolished. Avoid the all-or-none thinking.

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Just Do It

3 years ago

Kinsella got owned.

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Matija Papec

3 years ago (edited)

So basically a lawyer wants to deny intelectual property to an innovator, and limit him what he can or can’t do with fruits of his labor. I believe authoritarians and collectivists would agree here with Kinsella.

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cent25

3 years ago

“basically” you have no idea what you’re talking about.

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Matija Papec

3 years ago

What mechanism would you propose to protect useful intellectual work, for which you have no guarantee they would be laid out by someone else.

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N. Stephan Kinsella

3 years ago

Sort of how libertarians want to “deny” people a right to a welfare check!

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Matija Papec

3 years ago

For that parallel to be valid, intellectual labor should have no value at all.

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N. Stephan Kinsella

3 years ago

Matija Papec nothing has value.

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Matija Papec

3 years ago

I’m afraid market can’t agree on this axiom.

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jmcknight00

3 years ago

You don’t get it. Nothing “has” value — value is imputed on something by a person or persons. By itself no object “has” value.

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John Anonymous

3 years ago

Labor doesn’t exist. Labor is an action you undertake. You have to distinguish between thing that exist (objects, entities) and things that happen (processes, action, etc.). Only things that exist can be owned. And notice that labor doesn’t create things, it only rearranges stuff (which should already be owned first in order to do something with it).

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Matija Papec

3 years ago (edited)

Tell that to Martin Armstrong who was imprisoned by US government for denying to hand out his own mathematic market model. At the end he was released, but didn’t hand out anything and remained owner of his model. It must be that government saw value in his ideas and was prepared to take them by force. I have actually no problem with concept of owning of only what exist, but wouldn’t limit that only to steel and bricks.

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John Anonymous

3 years ago

Matija Papec What does that have to do with anything? I’m not advocating for full disclosure here. Anti-IP does not mean we have to share information. But once it out there, other people can use it too, obviously.

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Matija Papec

3 years ago

I’ve referred to “Only things that exist can be owned.” If I understand you correctly, Microsoft and Apple can sell one copy of their OS, and after that since it is “out there”, neither can object to free use by other people.

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John Anonymous

3 years ago

Yes, that’s exactly the case. And what’s the problem with that? Even with giants like MicroSoft and Apple, people still make money with Linux OS and OpenOffice. Nothing wrong with open source. Maybe they wouldn’t be as rich as they are, but that doesn’t mean the ICT world of today would be a lot different. Besides, didn’t “steal” MicroSoft a lot of ideas stuff from Apple? Something with windows? Copying is not theft!

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Matija Papec

3 years ago

This is all far stretched; would you release Windows 1.0 up to 10.0 knowing that you will sold only one copy per release? Open source or not, every piece of software is already accompanied by licence which gives certain rights on usage. If one doesn’t feel comfortable with given licence it should *feel free to go somewhere else*. Sheer fact that licence can be violated, doesn’t imply you have any right to do so. Am I wrong if I assume you’re exercising Pirate Party politics?

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John Anonymous

3 years ago

First of all, you don’t know that they would only sell one copy. Lots of people will still like to run the official release, and may pay for it in combination with a service contract. Secondly, I personally don’t care whether of not Apple or MicroSoft will release new versions. If they don’t, open source software will make sure innovation will continue with regard to operating systems. Just look at the succes of wikipedia. I’m not affiliated in any way with Pirate Party politics, but I certainly don’t care about the fact that there are laws that say I can’t download creative content using bittorrent.

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Matija Papec

3 years ago

The point is they would sell significantly less copies which in turn hinders further improvement and development of a product. Further, if market has a say, it voted for Windows as it dominates desktop market share despite of a free (as in beer) linux alternative (it looks like IP brings value to the market). Sure you can download and use software regardless of it’s license, but of course that would not be possible in case where author has control over distribution (as author would not give his software for free).

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John Anonymous

3 years ago

“The point is they would sell significantly less copies which in turn hinders further improvement and development of a product.” Sorry, I don’t care. And it may hinder quick further improvement and development of Windows, but it would open up the market for new startups. Currently it is almost impossible to create a new OS, because you will be sued for infringement of large amounts of patents.

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Matija Papec

3 years ago

Linux is already there, no one is suing it, and desktop market prefers IP operating system. My question was, would you create a OS for which you know in advance that required investment/development won’t necessarily be covered due to unrestricted distribution of product.

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John Anonymous

3 years ago (edited)

“desktop market prefers IP operating system” Which were developed at a time that there was far less IP in software technology. The world of software used to be one of the least regulated when it all started. And Linux din’t know in advance. Wikipedia didn’t know in advance. Nobody knows these things in advance. It’s called entrepreneurship. But even if we did know, and new OS-system wouldn’t be developed, that is still not an argument. There is no universal right to new OS-systems. But of course, without IP, there would be OS-system, obviously.

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 1:00:55 — 83.7MB)

1. Update: Grok re Wright PhDs (“In the 2024 UK High Court judgment in COPA v Wright (where Wright was ruled not to be Bitcoin’s creator Satoshi Nakamoto), the judge noted Wright’s pattern of forgery and plagiarism in other academic work (e.g., his 2008 LLM dissertation had 45 of 58 paragraphs copied verbatim), casting indirect doubt on his degrees. However, the court assumed his qualifications were true for the case, as they weren’t directly challenged.“); Wikipedia; Craig Wright, “The quantification of information systems risk: A look at quantitative responses to information security issues,” Doctoral Thesis, “Charles Sturt University” (2017); 2024 UK High Court judgment in COPA v Wright (pdf), ¶¶ 565–568, 582–585, on pattern of dishonesty,” ¶¶ 127–128, 393–395, 400, 926. [↩]

Another great legal scholar, and friend of mine, LSU Law Professor Robert Pascal, has passed away. I previously commented on the death of my friend, LSU Law Professor Saúl Litvinoff, a giant of civil law scholarship who died in 2010. I never even knew Saúl while I was at LSU law school, but I became close friends with him shortly after my graduation in 1991, and maintained correspondence with him until his death in  2010.

And another Louisiana legal titan, A.N. ‘Thanassi’ Yiannopoulos, died last year at age 88. I never met Yiannopoulos at all, but we corresponded in the years before his death in 2017 about some civil law matters. He was friends with my friend Gregory Rome, a young Louisiana lawyer who co-authored Louisiana Civil Law Dictionary with me in 2011. [continue reading…]

Kinsella on Liberty Podcast, Episode 233.

This is my appearance on the Jan. 9, 2018 episode of the Mises UK Podcast, with host Andy Duncan. From his shownotes:

On the fourth episode of the MisesUK.Org Podcast, Andy Duncan discusses with Stephan Kinsella the concept, theory, and practice of Bitcoin ownership, amongst other topics, which include the use of Bitcoin as money, the comparison between gold and Bitcoin, and the possible collapse of states everywhere due to the current monetary revolution which states may have been too slow to respond to, for the sake of their own existence.

Youtube version:

Related material: [continue reading…]

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 20:10 — 36.9MB)

Kinsella on Liberty Podcast, Episode 232.

This is my appearance on Keith Knight’s Youtube show “Don’t Tread on Anyone” (Dec. 18, 2017), discussing a hodge-podge of issues such as the fundamentals of libertarianism, why scarcity is an important concept, Hoppe’s greatest contributions, and so on. Youtube embedded below.

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 59:56 — 137.2MB)

Kinsella on Liberty Podcast, Episode 231.

This is my appearance on Let’s Talk ETC! (Ethereum Classic) (Dec. 8, 2017), discussing the referenced topics. The audience is not really a libertarian one so I explained different approaches to libertarianism and some of my thoughts about libertarian activism, the prospects of bitcoin and other technology possibly aiding in the fight for human liberty and the battle against the state, and so on. The host was very good, the discussion very civil, and the audio quality is pretty good.

Transcript below.

Youtube:

Original Youtube:

TRANSCRIPT

Let’s Talk Ethereum—Libertarianism, Anarcho-Capitalism & Blockchains

Stephan Kinsella and Christian Seberino

Let’s Talk ETC! (Ethereum Classic) podcast, Dec. 8, 2017

00:00:05

CHRISTIAN SEBERINO: Hello and welcome to another edition of Let’s Talk ETC.  I’m your host, Christian Seberino.  And today I have a special guest with me, Stephen Kinzella.  Did I pronounce your name correctly?

00:00:20

STEPHAN KINSELLA: No, Stephen Kinsella, but that’s close enough.

00:00:24

CHRISTIAN SEBERINO: Okay, Stephen Kinsella.  And so I think you’ll agree he’s a will be an interesting guest for us.  He is – let me read part of his Wikipedia page.  So Stephan Kinsella is an American intellectual property lawyer, author and deontological anarcho-capitalist.  He attended Louisiana State University where he earned a Bachelor of Science and Master of Science in electrical engineering.  So he does have knowledge definitely of technical aspects and a Juris Doctor from the Paul M. Hebert Law Center, and he also obtained an LL.M. at the University of London.

00:01:11

He was formerly an adjunct scholar of the Ludwig von Mises Institute, faculty member of the Mises Academy, and he also co-founded the Center for the Study of Innovative Freedom, C4SIF, of which he is currently the director.  So wow.  Welcome, and congrats on that very impressive resume.

00:01:37

STEPHAN KINSELLA: Thank you very much.

00:01:39

CHRISTIAN SEBERINO: So the reason I thought it would be interesting to have you on the show, and I think the audience would agree – so a lot of people get into blockchain technology and Ethereum Classic, which is one of the main focuses of the show, because they have libertarian leanings.  That’s not a requirement, but I do notice it attracts a lot of those people.  And they were all – or most of us are technically minded, and so a lot of times people will say things and I’ll wonder, well, is what you’re saying really backed up by the people that know about the law and economy more than developers?

00:02:26

Would they agree with the things people are saying?  And so that’s why I think you’re a very helpful guest because you bring that that side of things.  We don’t usually discuss things with lawyers and people that know so much about the economy.  So why don’t we – why don’t you start with – why don’t you describe from your website what a deontological libertarian is?  Now, when I searched for that on Wikipedia, it came up that it was the same thing as a natural-rights libertarian.  So can you kind of talk about that?

00:03:05

STEPHAN KINSELLA: Sure.  Well, keep in mind that I didn’t write that page, so that’s someone else’s description.  I don’t strongly disagree with it, but I think what the person writing that was trying to get at was there are – there’s considered to be two basic types.  Now there are some people that think there are three or more but two basic types of approaches towards, say, ethics.  And to simplify it, they’re empirical/utilitarian and natural rights/deontological.

00:03:40

So the first would be kind of a consequentialist approach, which is basically, we’re in favor of rules in society and laws that lead to the greatest benefit for society in general.  And that’s sometimes called utilitarianism.  It’s an empirical approach that a lot of economists favor, like they try to say, should we adjust the tax code this way?  Should we have this kind of law?  Who’s it going to benefit?  Who’s it going to hurt?  And we sum this up, and we try to do the overall best good for society.

00:04:14

CHRISTIAN SEBERINO: All right.

00:04:13

STEPHAN KINSELLA: And then the deontological approach, and by the way, people that are familiar with the philosophical idea of ontology, which is the philosophical study of the types of things that exist, the word sounds similar.  But they actually have nothing to do with each other.  So deontology and ontology have literally nothing to do with each other.  Deontological just means an approach that is more rule or principle-based, and that’s why it’s more geared towards the natural law.  So the idea is that we’re in favor of rules that are right, no matter what the consequences, so that’s the kind of classical division.

00:04:55

Now, someone like me, I wouldn’t really – I don’t actually think there’s a division. I think that the rules that are right and good sort of blend with and complement the rules that lead to the best results for society on average.  So I wouldn’t really distinguish between the two.  I think people call me a deontological anarchist libertarian because I’ve written in the tradition of Ayn Rand, who’s sort of an Aristotelian natural-rights theorist, and Rothbard, who was in the natural rights tradition.

00:05:27

But I myself have been more influenced by Mises – Ludwig von Mises in economics, who’s an Austrian economist, and by Hans-Hermann Hoppe, who is a German Austrian economist, who’s been influenced by Rothbard and Mises.  But his theory of rights is sort of a blend of consequentialism and the natural rights approach.  So we could get into that if it’s interesting, but basically I prefer to view my approach as logical and consistent and principled.

00:06:02

So you talk to other human beings that we live with, the ones that share similar values, basic values like peace, prosperity, cooperation.  And we say, listen, if you apply the rules of economics and logic and consistency and honesty and evidence to these things, what would what would that lead you to conclude?  So if we all are in favor of each other prospering and everyone doing better in life and we have some awareness of the laws of economics, the basic laws of economics, then what kind of laws would we be in favor of?  What kind of legal policies would we be in favor of?

00:06:43

CHRISTIAN SEBERINO: Okay, so you want me to answer that?  Okay, so two general classes of answers that I hear to your question is there’s the camp that says that we give everybody – we respect everyone’s freedom, and we leave people alone.  That’s what I think of when I think of libertarianism.  I’m a simple guy.  I think in simple definitions.  That’s how I would – your definition was obviously much more sophisticated than mine.  But that’s like a broad category.  And then other people seem to want to focus on taking care of people…

00:07:22

STEPHAN KINSELLA: Yes.

00:07:23

CHRISTIAN SEBERINO: What we would call the socialistic approach perhaps.  And those are kind of the two big answers that I see, and they’re always in conflict, maybe not all the time.  But those are the kind of the biggest, two divisions that I see.  Would you agree with that?

00:07:38

STEPHAN KINSELLA: I see.  I think from the perspective that I come from, we don’t agree with all these bifurcations exactly because we see that there are loaded presuppositions in the way that these things are framed.  And so it depends upon who or which audience we’re speaking to.  But if I’m talking to someone that just is dabbling in this or hasn’t experienced the libertarian perspective on things, then that perspective that you just put out, so we would say that’s a false dichotomy that, first of all, there’s no conflict between rights, and there’s no conflict between the desire to help people and the desire to protect people’s individual property rights.

00:08:29

We think that those things go together.  But there is a conflict between the idea of having, say, a legal right to be taken care of and a legal right to your property.  They do run in conflict with each other because – and this goes into what libertarians sometimes emphasize, the distinction between negative and positive rights.

00:08:51

So basically libertarians tend to say that we believe in negative rights and the corresponding negative obligations, which means that you have a right to do whatever you want within your own territory basically, and your own property, your own body, as long as you don’t invade someone else’s rights, which is sort of what you stated earlier as the kind of rule-of-thumb way of looking at it.  And that can be viewed as a negative right because the only obligation or duty that it imposes upon your neighbors is for them not to do something.  All they have to do is not invade your property.  They have to not hurt you.  They have to not steal from you.  They have to not invade your – so the only burden you impose upon them is to just not do something, to refrain from doing something.

00:09:38

CHRISTIAN SEBERINO: I see.

00:09:39

STEPHAN KINSELLA: But if you believe in positive rights, which is the right to be educated, the right to a house, the right to food, these kinds of things, that requires that someone else has to have an obligation or a duty to provide you with it.  So if you have a right to an income, that means other people have the obligation to give that to you.  But that means that you have a right to their property, so there’s always a conflict between the right that you have to your property and other people’s rights to try to get a piece of it

00:10:11

CHRISTIAN SEBERINO: Okay so…

00:10:12

STEPHAN KINSELLA: It becomes positive welfare rights.

00:10:14

CHRISTIAN SEBERINO: Okay, so if understood you correctly, you – two of the points that you made were that you don’t like these – some of these words that get banded about because they come with baggage.  And so we wanted – you sound like you’re obviously very precise on the language that you use, which is good.  And then also you said that the conflict between the two major camps comes whether we’re obligated to do something or simply have a right to be protected from doing something but that it’s the duty – how much duty we have is the difference.  Would that be a correct way to summarize it?

00:10:57

STEPHAN KINSELLA: Well, or it’s the type of duty.  Is the duty or the obligation to refrain from doing something, or is the duty to provide someone with something?  So it’s easy to just mind your own business and stay within the borders of your own property.  And if you want to cross the boundaries of someone else’s property basically and use their property, you need to get their permission.  You can’t do it without their consent.  So all you have to do is refrain from crossing their property borders without their permission.  And you can think of it in the most basic case of human bodies.  Human bodies are a type of scarce resource.  And the basic libertarian axiom would be self ownership, so every person owns their body

00:11:42

CHRISTIAN SEBERINO: Right.

00:11:43

STEPHAN KINSELLA: Which means the opposite of slavery because slavery means someone gets to own someone else’s body, or in the case of, say, sexual relations, can a man have sex with that woman’s body?  Whose decision is it?  Is it the woman’s decision, or is it the man’s decision?  And so the locus of control has to be with the actor himself that controls that body.  And then libertarianism is just an extension of that basic idea, the idea that we are self-owners, that we own our own bodies, that slavery is impermissible, extending that to other things in the world that we control and use as extensions of ourselves.  So basically people have a natural intuitive opposition to slavery.

00:12:27

They have a natural intuitive belief in self ownership by and large, people who don’t want to dominate each other, people that think that it’s wrong to stab someone or kill them or mug them or attack them without their consent.  We just extend that consistently to other scarce resources in the universe.

00:12:47

CHRISTIAN SEBERINO: Right.  Now, to be honest, I – so I don’t have an economics degree.  So when I listen to the libertarian arguments, they sound the most compelling to me personally.  And this isn’t an argument in support of socialism, but I do see on TV that there are people that have pretty impressive credentials that disagree with libertarianism.  And so you would think that they would know better if indeed they are wrong, and so let me ask you this.  Have you heard any good arguments on the other side, arguing against libertarianism?  Because there are some smart people.  I think you would agree that…

00:13:35

STEPHAN KINSELLA: Yes.

00:13:36

CHRISTIAN SEBERINO: So it’s not just a bunch of knuckleheads that – so what would you say to that?

00:13:41

STEPHAN KINSELLA: Well, so I believe there are some positions that there are really no good arguments against so, for example, the drug war or intellectual property, for example, which are two of my libertarian positions.  So I believe that all patent and copyright law should be abolished and all – so the drug war is completely illegitimate, and so is, say, conscription, the draft for war.  I don’t think there really any good arguments for that.  But for the state itself for a minimal state that does some functions instead of an anarchist position, which is what I hold, yes, I think there are some honest arguments for that.

00:14:19

And there are some decent arguments for that.  I think they’re flawed, but I don’t think they’re crazy.  So, for example, you could argue that if we live in a world as we do today where there are states like China and Russia and other states, if the US were to become anarchist, what would happen if China were to threaten us with nuclear annihilation?  What would happen to this anarchist regime?  Maybe they couldn’t defend themselves.  So that’s a difficulty that anarchist theory has to grapple with, and there are other arguments like that.

00:14:50

So I don’t deny that there are some honest disagreements about the basics.  But the farther you get away from a minimal state, say, the argument that Robert Nozick argued for, like instead of having anarchy, we should have a minimal state or an ultra-minimal state or what some libertarians call the night watchman state.  The farther you get away from that and the more you get into the modern democratic welfare state, which has broader and broader powers and unlimited taxing power, the right to conscript people for war, the right to throw people in jail for smoking marijuana.  The farther you get away from the core functions that you could argue for as a public function, the more indefensible those arguments become I believe.

00:15:34

CHRISTIAN SEBERINO: Okay, that makes sense.  Now, I’m glad you brought up the term.  I think you said anarchist or anarcho-capitalist because that…

00:15:44

STEPHAN KINSELLA: Yes.  So there are different types of anarchists, and I’m an anarcho-capitalist or an anarcho-libertarian, but they’re different terms.

00:15:50

CHRISTIAN SEBERINO: I printed that Wikipedia page, so let me just – for the benefit of the listeners, let me say what the Wikipedia page said because I’ve heard this term and I really want to make sure to get it right.  And then you tell me if you agree or if you want to add to it.  So anarcho-capitalist advocates the elimination of the state in favor of self-ownership, private property, and free markets.  And they believe that in the absence of law by centralized decrees and legislation that society tends to contractually self-regulate and civilize through the discipline of a free market.  And what surprised me the most or what it was shocking to me was that they believe that courts of law will be operated privately.

00:16:38

STEPHAN KINSELLA: Yes.

00:16:39

CHRISTIAN SEBERINO: And then they talked about the history.  Murray Rothbard was the first person to use the term.  But the question that came to my mind, which I’d love you to elaborate on, is if the free market sets up a court system and somebody says, well, I don’t care what you say.  I’m still going to do what I want anyway.  How do you – who has that final authority to – so can you kind of elaborate on that kind of confusion that some people might have?

00:17:10

STEPHAN KINSELLA: Absolutely.  And to be honest, I do a lot of interviews, and I kind of didn’t realize I was doing.  I didn’t realize this was not a libertarian show, which is fine with me.  It’s kind of a pleasure.  So I have to re-orientate – let me just maybe explain a couple of basics just to make sure the people listening, because if you were shocked by the private courts idea, I just dropped a while ago the idea of private – the idea of having no military and things like that.

00:17:41

CHRISTIAN SEBERINO: I mean I’m open to ideas.  I just never heard that before.

00:17:47

STEPHAN KINSELLA: Right, so let me explain – the territory is this.  There are – you had these old – oh, the history is vast, okay.  Brian Doherty’s book about the origins libertarianism is good.  But basically you had the old right.  You had the old liberals.  You had all these strains of politics from the last 2-300 years.  Say, in the ‘50s and ‘60s, Ayn Rand and Milton Friedman, and these radical free-market types emerged.  And they sort of allied to some degree with the conservatives for various tactical reasons.  And they’re seen as allied with them now, but in a way they’re very leftist and very progressive because they’re very pro-civil liberties, anti-drug war, anti-war, things like this.  So they’re really not categorized into the left-right spectrum.

00:18:43

CHRISTIAN SEBERINO:  Yeah, they don’t fit into that so nicely.  They don’t fit those categories too well.

00:18:49

STEPHAN KINSELLA: Right.  So we’ve come up with our own spectrum, which you can look up the Nolan chart.  David Nolan, one of the early libertarians, came up with a two-dimensional chart, which has two axes.  One axis is personal freedom, and one axis is economic freedom.  And libertarians believe in the maximum amount of both, whereas we would simplify and say liberals or leftists believe in maybe a lot of personal freedoms like free speech and things like that but not a lot of economic freedoms.

00:19:18

And conservatives would be the opposite.  They would believe in low taxes, but regulating abortion and religion, things like that, whereas we believe in high freedoms in both.  And the original guys sort of harked back to the original founding fathers of the US, and they view the original founding, Constitution, that era, as more proto-libertarian because it was kind of a more minimalist government.  They can only regulate a little bit.  And these guys are what we now call minarchist, which means they believe in a very minimal state, a night watchman state.

00:19:52

But there’s emerged a more radical strain of anarchists who believe in – the government should not just be minimal but zero, or the state.  I should say the state, not the government because we distinguish between those two.  And – but there is a tradition of anarchist that has, long before the ‘50s and long before libertarians like the left anarchists, the syndicalists, the socialists, the communist anarchists.  And they all say they don’t believe in the state, so you basically have different types of anarchists even today.

00:20:21

And they all disagree with each other.  So the libertarian anarchists, of which I am a part, and we call ourselves anarcho-capitalists because we believe there should not be a state and there should be a private property order.  And I’ll get to the court thing in a second, but we think that the socialist anarchists or the left anarchists are not true anarchists because the only way you could have socialism in a private system would be to have a state emerge to enforce those rules.  And they sort of think the opposite about us, so they think you could only have capitalism with the state to protect  the rights of the capitalist classes against the workers, etc.

00:21:00

So that’s sort of the landscape.  Okay, now, so the idea, and I’ll put it as simply as possible, and by the way, because I’m a so-called deontological anarchist, my perspective on this is not quite the same as the other type of libertarians who are more pragmatic-minded.  So they would just say the state doesn’t work.  Therefore, it’s bad.  So – and I kind of agree with that, but my view is more principled.  And I would say that we have certain rights as human beings.  We have a right to private property.

00:21:35

You have a right to do whatever you want with your body and with the things that you homestead or acquire by contract peacefully without hurting anyone.  And anything you want to do within that sphere is fine as long as you don’t invade the equal rights of other people.  That’s basically the core idea of anarcho-libertarians.  And if you have that framework, then you basically oppose what we call aggression, and aggression means the use of someone else’s property, including their body, without their consent.  Basically, it means hitting someone or walking on their property without their permission.  So we basically favor peace and voluntarism and consent, and if you have that basic principle, then you apply it consistently.

00:22:21

Then as Bastiat, the great French thinker who wrote The Law in the 1850s, as he explained, just because – if something is impermissible for one person to do, it doesn’t become permissible when a larger number of people vote in favor of it.  So if it’s wrong for me to come…

00:22:41

CHRISTIAN SEBERINO: Confiscate property.

00:22:44

STEPHAN KINSELLA: If it’s wrong for me to steal from you, it’s still wrong if 100 of my neighbors get together and we pass a law saying we can steal from you and give it to the poor, which is like welfare.  So we think that you can’t make something right just by majority vote.  And therefore, the state, by its nature, has to tax, which means take property by theft from people, and it has to outlaw competing agencies.

00:23:12

So it has to be the monopolistic provider of law and justice and force in a given community.  And those two things combined, and actually either one of them implies the other – that’s far afield, but those two things are both acts of aggression.  They’re basically acts of violence against innocent people who have done nothing wrong.  And as libertarians, we say it’s wrong, so we say the state is inherently aggressive and criminal.  That’s why we’re anarchist because we think the state is legitimate.  Now, then the practical issue is people say, well, what would society look like if we abolish the state, right?

00:23:52

CHRISTIAN SEBERINO: Exactly.  How you going to protect from invasion and bad actors?

00:23:58

STEPHAN KINSELLA: And the pragmatic and consequentialist-minded libertarians, they sort of start from that area.  They say that, well, we would be better off if the government provided – if the private companies provided the roads and education instead of the government, and so therefore we favor it.  But from my point of view, it’s the other way around.  We say it’s wrong for the government to take money for me to build a road.  It’s wrong for the government to steal my house to make a road.  It’s wrong for the government to force my kid to go to school.  It’s wrong for the government to tax me and to pay for public education.

00:24:31

So that’s the more deontological approach.  It’s a principled approach.  It’s like it’s just wrong.  And then the question would be secondary to us of, well, then what would society look like in the absence of that?  And from our point of view, this question would be similar to the abolition question of slavery during the antebellum south where, if you said we have to abolish slavery, not because it’s inefficient, not because it’s an inefficient use of resources.  We have to abolish slavery because it’s wrong because you’re violating the rights of black slaves.

00:25:09

CHRISTIAN SEBERINO: Right

00:25:10

STEPHAN KINSELLA: And if you said I am in favor of abolition of slavery because it is a violation of human rights—it’s wrong—and if someone said in opposition, but who would pick the cotton?  You see, so to us that wouldn’t be a good argument.

00:25:28

CHRISTIAN SEBERINO: A valid argument.  Yes, yes.  Now…

00:25:30

STEPHAN KINSELLA: If they said who would pick the cotton, if it’s a genuine question, we can ask – we can say, okay, well, we can look into that.  We can say, well, maybe.  But if you ask the question rhetorically as to the abolition of slavery, if you say basically, listen, I know you want to abolish slavery, but I don’t understand who would pick the cotton, and we have to have the cotton picked, and the slaves are picking it now.

00:25:57

And so, therefore, until you prove to me that the cotton will be picked as well and as efficiently after slavery then as before, until that point in time, we’re not going to abolish it.  The burden of proof is on you.  You see, we don’t think that way.  We think that the burden of proof is on them to justify slavery, and of course they can’t.  And then if the question is, okay, we have to abolish slavery, and who’s going to pick the cotton? I don’t know.  We have to wait and see and figure it out.  We’re okay with that answer.  So that’s the first kind of response.  Now, of course, common sense will tell you who would pick the cotton.  It would be you pay some laborer.  He’d invent machines or whatever.  So in the case of the court system, it shouldn’t be that shocking to you because there have been private court systems for all of history, and in fact, the entire…

00:26:46

CHRISTIAN SEBERINO: Oh, see, I didn’t know that.

00:26:48

STEPHAN KINSELLA: Well, I mean, first of all, arbitration is private.

00:26:51

CHRISTIAN SEBERINO: Okay.  I’ve heard of arbitration, and I never had to go through it, but I – okay, I understand what you’re saying.

00:26:59

STEPHAN KINSELLA: And contracts are private because they’re agreements negotiated between people.  And they’re like little legal systems between the people that are parties to the contract.  And not only that, the entire western legal system that we’re used to now, the private law that we rely upon, was developed in two great legal systems in the world.  One was the Roman law from, say, minus – so 500 B.C. to 500 A.D. roughly, that thousand-year period.  And the other was the English common law, which started maybe 7-800 years later for about 1000 years too until today, and they were both basically decentralized systems.

00:27:39

They were not completely private, but they were not controlled by legislation and governments, as we think of today.  They basically were – they resulted from two human beings who had a dispute, and they needed this dispute resolved.  And they knew that fighting each other would result in social ostracism or penalties.  And so they had an incentive to go to some arbiter, some arbitrator who would decide the case, a judge basically.

00:28:10

And they put their dispute before them, and the judge tried to find the just result or the right result and looked at precedent and tradition and expectations of the parties and natural law and common sense and made a decision and made an award.  You get to own this, not you, whatever.  And over time, these principles developed into the body of private law that we still rely upon today, private contract law, property law, tort law, things like that.  So the idea is that this would – this is what would happen in a private law society.  And let me mention one more thing and then – and that is that even in today’s society, we have roughly 200 governments in the world.  So in a sense, we have anarchy right now between countries.

00:28:59

Now, they do have treaties between each other, but that’s analogous to private contracts.  But here’s no overlord government that makes all the countries abide by the treaties, and we have transnational commerce.  You will have a French company doing business with a Belgian company or whatever, and the contracts happen to be enforced.  They find a way to do it through contract and through arbitration and through cooperation between the government’s legal systems.  So it’s clearly possible to have anarchy in a sense.

00:29:29

And one more thing: There’s a great article from the early Journal of Libertarian Studies by Alfred Cuzan, who is not a libertarian, but it’s a great article.  It’s called “Do We Ever Really Get Out of Anarchy?”  And he points out that within a government, within a state, there’s no overlord enforcer that makes them comply with the rules of the government itself.  So even within a government, you have a type of anarchy because, say, the US government.  You have the Supreme Court issue a verdict, and Richard Nixon complies with it.  He steps down because the Supreme Court said you have to turn over the tapes.

00:30:05

There’s no pistols being pointed at him.  There’s just an interlocking series of understandings and social traditions and understand agreements that result in a web of law that binds the people within the government itself.  I mean you see this playing out right now with all these – the things with Trump and Mueller and the Democrats.  They’re all playing this dance, but they’re abiding by a certain set of rules that they respect, not that these rules are valid or just or natural, but that it’s possible to have a set of rules that do bind actors within a system.  And we think that that’s possible within society at large.  We just think that they should be just instead of arbitrary and based upon force,

00:30:54

CHRISTIAN SEBERINO: Okay.  Now, if – now let me tell you a little bit about my simple introduction to libertarianism.

00:31:03

STEPHAN KINSELLA: Sure.

00:31:04

CHRISTIAN SEBERINO: So I have mainly read Milton Friedman, specifically his great book, Free to Choose, which I’ve read twice and gone through with my – well, not the book, but I went through the series, TV series with my daughter.  And I watched that twice.  It’s on YouTube.  I highly recommend it.  I think he’s one of the greatest intellectuals in history.  But would you say that that is a good starting point for somebody that kind of wants to jump into and learn more about this whole discussion?  Because he, to me, seems like one of the most amazing teachers I’ve ever heard.

00:31:42

STEPHAN KINSELLA: I think he was great and my personal sort of pantheon or list of works.  I think his book, Capitalism and Freedom, is really the pinnacle of what he wrote in terms of libertarianism.  Free to Choose is really good too.  Now, he is more of a consequentialist and minarchist libertarian, but yes, he’s fantastic.  And up there along with him would be Henry Hazlitt in his book. Economics in One Lesson.

00:32:13

I think if you read one of the Milton Friedman books, Free to Choose, or the series or his Capitalism and Freedom, and Henry Hazlitt, Economics in One Lesson, and the very short book by Frédéric Bastiat, that I mentioned earlier, called The Law, which is from 1850 or something, those three things will give you a very solid foundation, mostly in consistency and economic thinking and based upon kind of some simple principles of justice.  But yes, I totally agree with you.  Milton Friedman is great.  He’s not quite an anarchist.  But he’s great.

00:32:50

CHRISTIAN SEBERINO: Okay.  Now I’m going to put you on the spot because – or here’s – I didn’t have an answer to my own question that I thought of after I saw the Free to Choose series, which was, wow, this guy’s arguments are so amazing.  You could almost see somebody believing everything he says.  So then it occurred to me that I should probably see the flipside, and then I was trying to think, is there some communist/Marxian economist that maybe did a YouTube series as well that is equally articulate to just kind of get a balanced viewpoint or the other side?  So can you think of – I couldn’t think of anybody that was the equal of Milton Friedman on the other opposing side.  Can you think of somebody just to…

00:33:38

STEPHAN KINSELLA: No, and I hate these kinds of questions.  I mean I don’t blame you for asking.  The problem is if you don’t have an answer, it sounds like you’re not being objective.  But I’m well known to anti – I’m a patent lawyer, and I’m against the patent system, and I do lots of talks and debates.  And I’ll get asked all the time.  Hey, Kinsella, we want to do – I’d like to do a debate instead of an interview.  Could you recommend to me the top two or three people on the other side?

00:34:05

And unfortunately I think there are literally no good arguments for IP, so I’m always stumbling.  It’s not – I’m not trying to sandbag it.  I just can’t find anyone.  And on the question you asked, as I said earlier, I think there are some respectable arguments for some kind of minimal state and some kinds of interventions, not an intrusive state.  But if you want to go say communism or totalitarianism against some form of Western liberalism, some form of minimal or limited state that we have now, I think there are just no good arguments because just the empirical evidence alone there’s hundreds of millions of people killed and just impoverishment in the last century alone by communism and forms of socialism.  And I just don’t – I mean I think that in 1991 or ’90, when communism fell, they basically lost their argument in an empirical sense.  Now, in a more moderate form, like if you argue for the welfare state…

00:35:10

CHRISTIAN SEBERINO: Let’s do that.

00:35:13

STEPHAN KINSELLA: I think that probably the best arguments would be something like, say, Francis Fukuyama.  I don’t know if you’ve heard of him, but he had this provocative article, which turned into a book in the – I think around 1991.

00:35:23

CHRISTIAN SEBERINO: The End of History.

00:35:24

STEPHAN KINSELLA: Yes, The End of History and the Last Man.  And they sort of argued that it’s sort of a neo-liberal view that modern liberal democracy is the ultimate pinnacle of humanism.  And you have to have a balance between the desires of the masses, but you have to have capitalism in some form as the engine from – that provides growth and prosperity.  But then you have to have a state that redistributes it too a bit.  So I would say – and then John Rawls, of course, is the famous political philosopher.  And I’m blanking on the name of his book.

00:35:59

He had a famous book in 1970 or something.  I think it’s called A Theory of Justice.  And that’s the book that Robert Nozick, the famous libertarian philosopher, argued against in his book, Anarchy, State, and Utopia.  So those sort of books are the antipodes of the two views, but they’re all rooted in the liberal tradition in the sense that, say, John Rawls, and these welfarists believe in some form of redistributionism.

00:36:25

But they don’t believe in ultimate communism.  I mean you could look at Hillary Clinton and Barack Obama and these guys.  They don’t really oppose the free market and capitalism.  They understand that you can’t have communism.  You can’t have central command of the economy.  They may go a little bit too far, but they understand that the essential essence of the Western liberal system is commerce, trade, private property rights, free markets.

00:36:51

They just think it has to be heavily regulated by other values.  So the way I would pitch it is that, like a libertarian like me, I think that you should not commit aggression against someone.  You shouldn’t steal from them.  You shouldn’t invade their body without their permission.  I wouldn’t say it’s an absolute, but it’s basically my principle.  I think it’s just wrong.  Whereas if you put it that way to the typical social democratic-type thinking person, which is what most people are nowadays, they would say, well, I think that aggression is wrong, but there are other values.

00:37:28

We have to balance and weigh and juggle these things against each other.  So equality is also important and some kid starving in Africa being given food is also important.  I think that a lot of those concerns would disappear if they had a better understanding of economics, like if they understood the incentive systems that governments have to come with.  And basically the whole field of public choice economics, which explains why a lot of the grand schemes and projects that these idealistic, utopian, progressive dreamers want to accomplish, they just cannot be accomplished because once you set a program in motion, it has its own inertia.  And the people inside that program want to benefit themselves, right?

00:38:17

CHRISTIAN SEBERINO: Right.  Well, see, now – see, that’s a – okay, so just if I can try to reiterate some of what you said.  So you believe in what you believe because you think it’s right and – but towards the end of your comment, you were also saying that not only do I believe it’s right, but it also provides the most benefit.

00:38:41

STEPHAN KINSELLA: Yes.  That’s why I said earlier I don’t think there’s a conflict between consequentialism and between deontological or principled approaches.  I think they dovetail together, but yes.

00:38:53

CHRISTIAN SEBERINO: Okay.  So in the last part of our show, why don’t we move into talking a little bit about blockchains and like Bitcoin?  So a lot of people involved with this technology I think have visions that it’s going to help promote a lot of the political and economic viewpoints that you share.  And a lot of people don’t know if the government is going to eventually just figure out a way to kill it and that’s going to be the end of it.  But what’s your experience with this technology?  And kind of what are your thoughts on vigilante little activists?

00:39:38

STEPHAN KINSELLA: Well, first of all, I’ll say that – so I’m of the Austrian, which is Austrian economics, which is like a hard money, pro gold, anti-Federal Reserve, anti-inflationary money tradition, and libertarian and suspicious of the government controlling money in the Fed.  So just from that point of view, there’s aspects of just any kind of private money that attracts us.  And there are some Austrians who think that Bitcoin is impossible because they think that money has to arise from a physical commodity.  I’ve never believed that.  I’ve always thought that this is – I think that Bitcoin is a new phenomenon the world.

00:40:16

I think the idea of the blockchain and aspects of – that it built upon Nick Szabo’s idea, are complete genius.  And if we knew who Satoshi was, I mean he probably should get the Nobel Prize someday just for this new phenomenon.  And we’re reaching a new stage of human evolution.  There’s lots of things happening.  I think we can’t predict what’s going to happen: artificial intelligence, 3D printing, encryption, what Doug Casey calls phyles, P-H-Y-L-E-S, people associated with each other not based upon their ethnicity or their regions but upon other affinities.

¹

00:40:54

And I think Bitcoin could be extremely disruptive.  Look, I’ll say that I was never skeptical of it in an economic sense like some of my fellow Austrians were.  But I was skeptical that – I thought it might be a threat to the government if it ever became successful.  And I thought the government would shut it down.  I actually lost a bet against one of my friends in 2013 about that, and I learned my lesson.  I paid him $100 in Bitcoin, which is now worth about $50,000, so I lost a $50,000 bet.

00:41:25

CHRISTIAN SEBERINO: Wow.

00:41:26

STEPHAN KINSELLA: But I wised up, and I bought some in 2014, and so now I’m just watching what happens.  And I think – my hope and my somewhat prediction is that it’s going to be something like Uber.  Uber is something that got popular so fast that by the time it got popular enough to raise the ire of the protected industries, the cab companies, etc., it – who were going to lobby the government to shut it down, it was too late.

00:41:55

And I think Uber has escaped the clutches of the government because the government is slow and stupid, which is one thing we have in our favor.  And I’m hoping that that happens with Bitcoin.  By the time the government wakes up and tries to outlaw Bitcoin, it will be too late.  And also it’s distributed around the world, so even if one or two or ten governments outlaw it, they’re just going to be left in the dust by the countries that don’t.

00:42:20

And there are lots of countries that don’t have the dominant world money, basically everyone except for the US, smaller countries that don’t – they don’t care if their currency is outmoded by Bitcoin.  So it’s going to just prosper there.  My guess is that Bitcoin could – if it emerges and gets more and more dominant, it could – if it replaces, say, gold and then starts becoming a haven for people to resort to – instead of the inflationary currencies like the dollar and the euro and others, that it’s going to severely limit the power of the government, number one, to inflate.

00:42:58

And that’s what funds government wars, so it could have a direct effect on the ability of governments to wage war.  It could also impact the government’s ability to tax people and to regulate the economy, to have currency limitations, exchanges, and all that.  So I think it could severely – it could end up being the thing that’s the silver bullet or the stake in the vampire, which is the state.  It could kill the state.  Now, this is an ambitious and utopian goal, but I’m hopeful, and I do think that there’s huge potential for Bitcoin.

00:43:32

My personal view is I’m leaning more towards the Bitcoiners, the ones that believe that there can only – there should probably only be one in the long run.  It’s probably going to be Bitcoin because of its network effects and that – I think it’s going very, very high in the future, or I’m hoping that will.  So that’s kind of my thoughts on Bitcoin, although I admit that I’m an amateur and an outsider observer.

00:44:02

CHRISTIAN SEBERINO: No, that’s good.  No, that’s really good.  What – if I could just add one other supporting data point to your optimistic hope that this technology will get popular so fast that nobody can shut it down.  One, when people – when I get in discussions about this very thing, one thing I will remind people of is that think about Hollywood and how powerful Hollywood was and how hard they tried to basically re-engineer the internet to stop piracy.

00:44:36

STEPHAN KINSELLA: Yes.

00:44:37

CHRISTIAN SEBERINO: And they couldn’t do it, and even today, there’s still rampant, massive file sharing.  And so freedom won out, and so I use that to try to encourage people to remain optimistic that it is true that a technology can take off.  Go ahead.

00:44:52

STEPHAN KINSELLA: And so that’s – the key point there is that all these things are basically based on technology.  So as I mentioned, I’m patent attorney and I’m a libertarian, but I’m – I think copyright and patent law are two of the worst laws that we have and should be totally abolished.  But I do – but thankfully the advent of the internet and encryption and torrenting has basically made copyright almost obsolete.  So even if you have strict laws against it, copying is going on at a rapid pace now, and as I think Cory Doctorow pointed out that the internet is a perfect copying machine.

00:45:28

And at this point in history, copying will never get harder than it is now.  It’s only going to get easier.  So basically technology has made copyright obsolete, and I think the same thing is going to happen with patents because of 3D printing.  So when you have 3D printing become more sophisticated, and I think it might take 30 or 40 years, but when you have people have a copying thing in their basement or down the block, and they could get an encrypted file of a pattern for an object, they can make whatever the hell they want.  They don’t need someone’s permission, right?   So that’s going to kind of help circumvent patent law, which is a good thing, I believe.

00:46:06

CHRISTIAN SEBERINO: And also gun control as well.

00:46:08

STEPHAN KINSELLA: Yes.  It’s going to circumvent gun control and lots of things.  It’s going to cause some problems too, but that’s freedom emerging.  And I think that Bitcoin could do something similar with money.  There’s a great article by one of my favorite philosophers, my favorite philosopher, Hans-Hermann Hoppe.  He’s got this article called “Banking Nation States and –” I forgot the rest of the title.  But it’s in his – it’s in one of his books.  It’s on his website, hanshoppe.com.  And he points out that there’s a systematic way that the state, over time, takes control of society.  So it takes control of transportation, so like the Romans build the roads, right?

00:46:49

It takes control of the courts and law, which is kind of quasi-private, and it takes control of education.  All the kids have to go to government schools, so it’s like an insidious way that it puts itself into society to get its tentacles of control.  And finally, it gets control of money in banking like how the government took over money, and then they cut the tie to gold, and they have the Federal Reserve.  So it has these ways of worming its way into control over society, but to my mind that means that if you break the government’s ability to control money, that’s going to be a key turning point.

00:47:31

I personally think that we are not going to have a libertarian or anarchist revolution.  We’re not going to have people marching in the streets.  We’re not going to have a victory by means of my fellow libertarians running around pinning up pamphlets to tell people to change their minds because we’re always going to be a small, intellectual, geeky minority.  That’s not how you do things.  But I think we’re going to win for the same reason that communism collapsed.

00:47:57

It just collapsed of its own weight and just because freedom is just more efficient.  People are just not going to need the state.  The state is going to – the state will wither away as Marx predicted but not in the way he predicted.  It’s going to whither away in favor of freedom and capitalism, as people just have so much wealth and technology.  They’ll have little robot nano armies around them and 3D printers and encryption and billions of dollars in Bitcoin, and the government will just become increasingly irrelevant.  That’s kind of my utopian dream and hope.

00:48:31

CHRISTIAN SEBERINO: Right, right.  I wonder if we can close with this, if you could say something encouraging to people like me.  So I’m a nerd who focuses on technology, and I don’t know as much about law and economics as you do.  But it seems to me that, with this technology, people that believe in freedom agree with a lot of your program.  We can almost use technology to make the same or even a more effective change in society than somebody that’s, say, a politician.  You see what I’m saying?  This is one of the first times I’ve seen that somebody that’s involved with technology could really make big political changes.  What do you think about that?

00:49:24

STEPHAN KINSELLA: Well, I hate to be a Pollyanna, but I am optimistic.

00:49:29

CHRISTIAN SEBERINO: Feel free.  Be honest.  Be honest.  Go ahead.  Tell it like it is.

00:49:34

STEPHAN KINSELLA: I’ve always been optimistic, and I don’t like to be naive and to say the state doesn’t exist and that there aren’t great setbacks.  But so I agree with that.  I think that technology is the key to the future, and I think wealth is a key to the future.  And we’re in a cusp on the Industrial Revolution curve.  So you think about human society had about the same standard of living for, like, 5000 years until about 250 years ago.  And then we started on this Industrial Revolution curve, which is an exponential curve.

00:50:04

And we’re accelerating even that now with potential AI, with 3D printing, with nanotechnology, with the internet, with mobile technology.  We’re going to have telepathy pretty soon effectively with little things in our heads, and we can – and with this kind of money and this power, the state is going to go away.  And I think technology is the key to the future.  I don’t want to say it’s a given.

00:50:29

We could have gray goo and snuff ourselves out with religious ideology and with war and with bioterrorism or nuclear war.  It’s possible, and I think even if we have nuclear war, it’ll be horrible and will just set back humanity for 300 years, and then we’ll finally reemerge or maybe 50 years.  So it’ll be bad for us, but in the long run, maybe we’ll survive, so I’m hopeful.  My only concern is that we – is it Freeman Dyson or someone who said – the physicist who said, well, where are they?

00:51:05

It’s not Dyson.  It’s someone else.  But it’s like we don’t hear any signals from outer space, so that implies that life is either very rare or it snuffs itself out.  I’m hopeful that it’s very rare and that’s why we don’t hear from them.  But no, I’m very optimistic about I think things are getting better.  We’re richer.  We’re healthier.  We’re – and technology is going to enable us.  We’re at the cusp of great things.  We’re young gods I think – I hope, and our grandchildren will be gods.

00:51:34

CHRISTIAN SEBERINO: Okay, interesting, interesting thought.  Well, thank you.  Thank you, Stephan, for sharing your thoughts.  You’re obviously very educated, very talented person.  And thank you, and maybe we’ll have you on the show again sometime in the future.

00:51:50

STEPHAN KINSELLA: Be happy to do it

00:51:52

CHRISTIAN SEBERINO: All right, any other last closing thoughts or comments you want to make?

00:51:56

STEPHAN KINSELLA: Well, I would just say one thing.  I would say that – you mentioned like I sound like I’m educated on law and economics.  And I would say this.  I think that specialists – you don’t have to be a specialist to understand enough to understand a lot about the world.  If you understand technology, that’s a key thing, and all the rest of that you need is a little bit of honesty and sincerity and consistency in your thinking and just a little bit of economic literacy.

00:52:26

And, like I said, if you just read Economics in One Lesson, by Henry Hazlitt, if you understand the law of supply and demand and a few basic laws of economics, that can help inform your thinking about higher-level political norms.  You don’t need to have an economics degree.  In fact, that might be a detriment with the way – the things they’re teaching in school.  So it’s not that hard to self-educate yourself on a few basic things about economics and the basics of law.

00:52:52

You don’t have to go to law school.  You don’t have to be an economist to know enough to have an educated opinion about these matters.  And then the technology is what I would say is key, the technological information.  Immerse yourself in technology, and I think just try to take advantage of it and buy some Bitcoin I would say.

00:53:11

CHRISTIAN SEBERINO: Yes.  All right, and with that – well, why don’t we go ahead and we’ll stop there.  So thank you again and best wishes to you this holiday season.

00:53:22

STEPHAN KINSELLA: You too.

00:53:23

CHRISTIAN SEBERINO: All right, bye.

00:53:24

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 53:45 — 41.5MB)

1. Update: Re phyles, I am reminded of the idea behind “flag theory” discussed in Emile Phaneuf III and Rahim Taghizadegan, “Jurisdiction Shopping: The Forgotten Logic Behind Flag Theory,” The Daily Economy (February 2, 2026): “Harry Schultz, who coined the term “flag theory,” framed his thinking in an explicitly Austrian register, crediting Friedrich Hayek as his main economic inspiration and frequently citing Ludwig von Mises and Mises’s American student Hans Sennholz. The same pattern appears among other popularizers of international diversification such as Jerome Tuccille and WG Hill. In other words, the “flags” idea did not arise in a vacuum. It grew naturally from a worldview that treats institutions as constraints to compare, compete, and, when necessary, exit.” [↩]

Kinsella on Liberty Podcast, Episode 230.

This is my own audio recording of my debate on IP at the Yale Political Union (Facebook) on Tues., Dec. 5, 2017. My opponent was attorney Candice Cook. My initial argument begins at 0:04:40, followed by some Q&A, and my closing argument begins at 1:42:20. I can’t say I recommend listening to the comments of others, as none of my arguments were really addressed and the arguments given are pretty incoherent—the arguments for IP were rooted in confused utilitarianism and even the arguments against IP were mostly rooted in anti-property socialistic assumptions.

As expected, I lost the debate, by vote of the students, by a vote of about 2:1. Admittedly, it doesn’t sound too bad to get 1/3, when not even all libertarians have the right view on IP, but it’s worse than that: many of those who voted with me voted against IP for socialistic, anti-property reasons. Everyone is so confused about this topic. I knew this would be the case, I knew it would basically impossible, hopeless, to persuade mainstream left-socialistic types in a short talk of a radical position that rests upon having a sound view of property rights.

So I went ahead, giving up hope on the audience, and laid out a systematic argument against IP based the nature of human action, human interaction, and property rights. A systematic, if compressed, argument, that could possibly resonate with some open-minded people someday listening to the recording via this podcast.  Thus, my initial presentation was a very condensed (15-20 minutes) but very fundamental explanation of the nature of property rights and why intellectual property is totally incompatible with property rights. Even though I knew it would be a hard sell with Yale undergrads.

As can be heard from the “hissing” (their version of booing) whenever anything pro-private-property or capitalistic was mentioned, and from the comments of some of the student political group leaders, there was a good deal of explicit Marxism and socialism among the student. But it was fun nonetheless and they were very civil and respectful.

Video of the debate available here and embedded below.

(I spoke on IP before a smaller student group back in 2014—see KOL151 | Yale Speech: Balancing Intellectual Property Rights and Civil Liberties: A Libertarian Perspective.)

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 1:48:00 — 74.2MB)

Update: See “Dialogical Arguments for Libertarian Rights” in The Dialectics of Liberty.

I’ve been invited to contribute to a proposed new book, The Dialectics of Liberty, to be co-edited by Chris Sciabarra, Ed Younkins, and Roger Bissell, to be published by Lexington Books in 2019. My chapter is “Dialogical Arguments for Libertarian Rights,” based on my article “New Rationalist Directions in Libertarian Rights Theory,” Journal of Libertarian Studies 12:2 (Fall 1996): 313–26, updated including material drawn from other material:

• Argumentation Ethics and Liberty: A Concise Guide
• The Genesis of Estoppel: My Libertarian Rights Theory
• Hoppe’s Argumentation Ethics and Its Critics

Updates to follow in due course.

Kinsella on Liberty Podcast, Episode 229.

This is my appearance on the Ernie Hancock “Declare your Independence” show for Nov. 3, hours 2 and 3. There is a “debate”—more of a discussion really—with libertarian-ish gun-rights author Alan Korwin in the first segment.

Grok summary shownotes: [0:00–59:24] In this episode of the Ernest Hancock Show (KOL229, Nov. 3, 2017), host Ernest Hancock facilitates a heated debate on intellectual property (IP), specifically copyright, featuring Stephan Kinsella and Alan Korwin. Kinsella, a libertarian legal theorist and outspoken critic of IP, argues that copyright is an unjust state-granted monopoly that stifles innovation and free speech, rooted in historical control mechanisms like the Stationers Company and the Statute of Anne (1709). He emphasizes that ideas are not scarce resources and thus cannot be owned, drawing on Austrian economics and the nonaggression principle to assert that copying is not theft but a natural part of human learning and competition. Hancock aligns with Kinsella, expressing frustration with government-enforced IP restrictions and advocating for a decentralized, piracy-friendly internet where ideas flow freely, citing examples like Napster and crowdsourced films like Iron Sky to illustrate alternative models.

Grok detailed shownotes and Youtube Transcript below.

GROK DETAILED SHOWNOTES:

Some of Ernie’s shownotes are pasted below.

11-03-17 — Roy Robin – Stephan Kinsella – Alan Korwin — (VIDEO MP3 LOADED) Roy Robin (Founder ICO Token Fund) talks about their decentralized investment platform – Stephan Kinsella (Intellectual Property Attorney) and Alan Korwin (Author; GunLaws.Com) discuss intellectual property and copyright issuesProgram Date:  Friday, November 3, 2017
Hour 1:  Media Type: Audio   •  Time: 48:48 Mins and Secs
Hour 2:  Media Type: Audio   •  Time: 136:0 Mins and Secs
Declare Your Independence with Ernest Hancock – Radio Host: Ernest Hancock Email: [email protected] Website: www.ernesthancock.com Declare Your Independence with Ernest Hancock strives to create an understanding of the Philosophy of Liberty. Understanding is far more important than agreement — that will come in its own time. DONATE Bitcoins Here 1PCnPViv1PENR5Qme63DKYbj19hmHQoag1
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HOUR ONE
Media Type: Audio   •  Time: 48:48 Mins and Secs
Guests:  Roy Robin Topics:  ICO Token FundHour 1 – Roy Robin (Founder ICO Token Fund) talks about their decentralized investment platform  Hour 2 – Stephan Kinsella (Intellectual Property Attorney) and Alan Korwin (Author; GunLaws.Com) discuss intellectual property and copyright issues Hour 3 – Stephan Kinsella on intellectual property rights CALL IN TO SHOW: 602-264-2800 -30- Feature Article  •  Global Edition Freedom’s Phoenix Declare Your Independence APP now on Google Play  Donna Hancock Listen to any recent show of “Declare Your Independence” at the click of a button!     November 3rd, 2017 Declare Your Independence with Ernest Hancock on LRN.FM / Monday – Friday 9 a.m. – Noon (EST) Studio Line: 602-264-2800    Hour 1 2017-11-03 Hour 1 Roy Robin from Ernest Hancock on Vimeo. Roy Robin With Over 10 Years of Experience Building Teams, Building Brands and Launching Companies, Roy brings a unique background of proven leadership to the ICOT Project. Webpage: http://icotokenfund.com/go/ Investment Breakdown Below is the ICOT Foundations Strategy One Year Hold 40% of the Holdings will be invested 1/3’rd into BTC, 1/3’rd into LTC and 1/3’rd into ETH for a One Year Hold ICO Investing 25% of the Funds will be used for ICO investing. Market Opportunities The ICOT Foundation will invest 12.5% of the fund into to profit from market opportunities such as Corrections, Hard Forks, etc. Acqusitions The ICOT Foundation will keep 22.5% of the fund available for ICO Acquisitions & Mergers. CHECK OUT THE ICOT TOKEN SALE Round One $ 50,000 5 Million Coin Hard Cap Any Unsold Tokens BURNED SOLD OUT Round Two $ 1.8 Mil 2.5 Mil Tokens at 0.25 2.5 Mil Tokens at 0.50 Any Unsold Tokens BURNED This Round is Live Round Three 5 Mil 2.5 Mil Tokens at 0.75 1.25 Mil Tokens at $1 1.25 Mil Tokens at $1.50 Upcoming Round Join The Token Sale! Below Are The Steps To Buy ICOT: Send Eth From ERC20 Wallet :  Token Address: 0xEF333188332869D25C67CA7505a2eE9CD6B591dB Gas: 200,000 Add Custom Token Information : Token Address: 0x63e7eEd4c0B1EaA2c8b21195e5255aB227fe3D2a Token: ICOT Decimals: 18 ======================================= TOPICS DISCUSSED… http://www.icotokenfund.com/go/whitepaper.pdf ICOT the Shark Tank for Cryptocurrencies and ICOs October 31, 2017, 12:13:37 PM  #1 Hello all, I wanted to let you know about a fantastic ICO called ICOT (Initial Coin Offering Token) that I have been privileged to become a part of. You might want to get in while it is still cheap!! (Just a thought) Why invest? This coin consists of 2 parts and solves a major problem in the crypto world. First, it acts just like any other cryptocoin out there in existence as it can be bought, held, or sold for profit. Second, which is amazing in my opinion, you can stake a percentage of your coins and thereby own a percent of the profits made when the company invests into other ICOs. Basically you become part of a Shark Tank but for ICOs!! This coin aims to reduce the risk associated with ICOs, which as someone who is taking part in that area of the cryptocurrency world, I greatly appreciate. However, with all that being said, with so many coins being made it’s hard to tell scam coins from coins that have potential. So how has ICOT dealt with that? Well, what ICOT has done is to create a team of highly experienced crypto investors to sift through all the ICOs. Their job is to pick the ones that have the best potential and invest in them. If you stake some of your coins when ICOT earns a profit off one of these ICOs, you make money off it as well the percentage of which being based off your stake amount compared to the total pool of staked ICOT. Granted, though, staked ICOT are burned but that does not mean that you lose your percentage……it’s just part of the process and increases the overall value of the remaining ICOT. But what if I don’t want to stake? No worries, you don’t have to, you can just keep the coins and sell them when you want if you so choose. Here is a little bit more regarding the specifics: It is an ERC20 Token with a Circulating Supply of 30,000,000. It’s total supply is 100,000,000 but 70,000,000 are to be BURNED in first year which will increase the value of the remaining ICOT tokens! What does the road map look like? – October 2017 ICO rounds a total of 10m tokens to be sold at .25c, .50c, .75c, $1.00 and $1.50 ICOT confirmed it will be listed on COINEXCHANGE.IO ICOT listed and reviewed by verifiedicos.com ICOT listed in one of the largest ICO directories – 6th November 2017 (Right around the corner!!) ICO rounds end All unsold coins are BURNED – 8th November 2017 ICOT listed on major exchanges ICOT acquires its first investments – 1st January 2018 The CoinLock System™ Wallet v1.0 will be released Coins will be staked/burned There is a very active Slack channel where you can discuss the project with the entire team and those who have already become a part of this ICO!! We would really like it if you came and said hello. Any questions feel free to ask! I can help you get set up and I’d be more than happy to help where I can. I believe this project to be a game changer and would hate for you to miss out on such a great opportunity. Here is some links for more info, etc. Website:http://icotokenfund.com Slack: icotoken.slack.com Facebook: https://www.facebook.com/ICOTokenFund
HOUR TWO
Media Type: Audio   •  Time: 136:0 Mins and Secs
Guests:  Stephan Kinsella , Alan Korwin Topics:  Intellectual PropertyHour 2 – Stephan Kinsella (Intellectual Property Attorney) and Alan Korwin (Author; GunLaws.Com) discuss intellectual property and copyright issues-30-Hour 2 2017-11-03 Hour 2 Stephan Kinsella, Alan Korwin from Ernest Hancock on Vimeo. Stephan Kinsella (Intellectual Property Attorney) and Alan Korwin (Author; GunLaws.Com) discuss intellectual property and copyright issues STPEHAN KINSELLA BIO – Stephan Kinsella is Founder and Executive Editor of Libertarian Papers, Founder and Director of the Center for the Study of Innovative Freedom (C4SIF), a member of the Editorial Board of Reason Papers, a member of the Editorial Advisory Board of the Molinari Review, a member of the Editorial Board of The Journal of Peace, Prosperity & Freedom (Australia), a member of the Advisory Board of the Lexington Books series Capitalist Thought: Studies in Philosophy, Politics, and Economics, a member of the Advisory Council of the Government Wast and Over-regulation Council of the Our America Initiative (2014—), and legal advisor to LBRY (2015—). A registered patent attorney and former adjunct professor at South Texas College of Law, Stephan has published numerous articles and books on IP law, international law, and the application of libertarian principles to legal topics. He received an LL.M. in international business law from King’s College London, a JD from the Paul M. Hebert Law Center at LSU, and BSEE and MSEE degrees from LSU. • [email protected] Webpages:  https://stephankinsella.com/ http://c4sif.org/ ALAN KORWIN BIO – Alan Korwin wrote his first book, The Arizona Gun Owner’s Guide, in 1989. It is now in its 26th edition with about 250,000 copies in print. He went on to write or co-write nine more books on gun laws, including state guides for California, Florida, Texasand Virginia, and the unabridged federal guides Gun Laws of America and Supreme Court Gun Cases. His 11th book, which debuted in 2008, is The Heller Case: Gun Rights Affirmed!, and his 12th, After You Shoot, is about the deadly loophole in self-defense law. He recently completed Your First Gun, for people new to gun ownership, and for gun owners to give to their gunless friends. With his wife Cheryl he operates Bloomfield Press, the largest publisher and distributor of gun-law books in America. His website, GunLaws.com, features a free National Directory to every gun law in the country and more than 300 books and DVDs for gun owners and the freedom movement. Alan’s blog, PageNine.org, is carried by scores of paper and online outlets. Wild rumors about his outrageous political-parody band, The Cartridge Family, could not be confirmed at press time. Webpage: http://www.gunlaws.com/ =================================== TOPICS DISCUSSED OR REFERENCED…   The Surprising History of Copyright: Karl Fogel at Google Tech Talks by STEPHAN KINSELLA on FEBRUARY 7, 2012 This is a truly amazing talk about copyright. And waaaay back in 2006! Truly amazing. From Karl Fogel at QuestionCopyright.org. What is truly impressive is how prescient Fogel is, and how he comes at this not from a libertarian angle but still gets it right on every major theme, and without being anti-free market. [See also Fogel’s article The Surprising History of Copyright and The Promise of a Post-Copyright World.] See also other interviews, videos, and talks on QuestionCopyright’s Speakers Bureau page, including: “Brian Lehrer Live (NYC) interviews Nina Paley and Karl Fogel” In May 2010, QCO’s Executive Director, Karl Fogel, and artist-in-residence, Nina Paley appeared on the CUNY TV show presented by renowned WNYC radio host Brian Lehrer. “We Are Creators Too” Art Brodsky of Public Knowledge Interviews QCO Artist-In-Residence Nina Paley “The Public Perception of Copyright” To document the public perception of copyright today, we went around Chicago with a video camera over two days… “History of Copyright and Information Ownership” Talk by Karl Fogel at the Stanford University Library; about 90 minutes, with Q&A. ===================================   The Surprising History of Copyright and The Promise of a Post-Copyright World http://questioncopyright.org/promise by Karl Fogel

TRANSCRIPT

Ernie Hancock Show: IP Debate with Alan Korwin (Nov. 3, 2017)

00:00:00

M: And now, live, from the studios of Freedoms Phoenix, Ernest Hancock.

00:00:06

M: Believe me when I say we have a difficult time ahead of us.  But if we are to be prepared for it, we must first shed our fear of it!  I stand here without fear because I remember.  I remember that I am here, not because of the path that lies before me but because of the path that lies behind me.  I remember that for 100 years we have fought these machines, and after a century of war, I remember that which matters most: We are still here!  Tonight, let us make them remember.  We are not afraid!

00:00:55

[music]

00:01:07

ERNEST HANCOCK: No fear, no fear, no fear, no fear here on Declare Your Independence with me, Ernest Hancock, here in Phoenix, Arizona from the b-e-a-utiful studios freedoms with an S, freedomsphoenix.com.  All right, we’ll do better next time.  All right, we have Stephan Kinsella on, and it’s stephankinsella.com, S-T-E-P-H-A-N, K-I-N-S-E-L-L-A, Stephan Kinsella.  Now, years ago, we spent quite a few hours with him on the show when it first really started becoming a big thing, and Stephan’s out there kicking ass on this intellectual property thing.

00:01:41

Well, it’s getting to where, yeah, the patents and inventions and fraud.  How do you build an idea on an idea of whose idea and kind of in this new technology of an idea, and now we patent it, and so only we can do the idea.  And anybody else that does the idea, whether we do it or not, you’re not allowed to do it?  And I’m going, that sucks.  I hate that.  Now, then we get into copyright, which is another intellectual property claim.  If wrote it down on a piece of paper first and I did the song, then it’s mine, and you’re not allowed because you’re not.

00:02:10

Well, this is—brings up the Pirate Party.  I mean, heck, in Europe when they were doing all this, that was all about online privacy and freedom, and I can do whatever and Pirate Bay this and going to be pirate and pirate.  Pirateswithoutborders.com—that’s us, man.  We’re going to go pirate.  I need pirate currency.  I need pirate communications.  I need pirate—oh, I’m sorry.  You can’t do that one.  That’s protected by—and we got some government agent with a shiny badge and a gun and says you can’t do that because you can’t.  This guy said.  And I’m going, I’m tired of looking to see what I can and can’t do.  I go to the blue pages and what government agency for to give me permission to something, or if I got an idea, can I even publish it if somebody ever thought of it, and you can’t—nope.  The bottom of all shoes that are red belong to this company, and you’re not allowed to do it.  I mean, I’m just—I hate this crap.

00:02:59

So what we’re going to do today, a good friend of mine is an acquaintance.  Alan Korwin is an author here in the Valley, and he generally does a lot of—he writes a lot of books.  It’s been dozens, a bunch, and he does a lot on the second amendment.  Now, he is—wrote a lot of very powerful books that have had an influence in the space, certainly on second amendment issues.  And it goes to the Supreme Court.  He gets invited.  He gets to sit there and play journalist, and you guys make the arguments about whether or not to write a book about it.

00:03:32

So his whole thing is like, that’s my books.  If somebody starts taking pieces of my books out, even the state of Arizona, and start using it, and they’re for a service of a little pamphlet.  He’ll go, hey, that’s—you didn’t give me credit.  I’d go, that’s mine, mine, mine, my words.  Well, he gave a presentation at a discussion group that I do just this last month.  And it was obvious to me that he was doing research and had read some of Stephan Kinsella’s work because he came back—well, damn libertarians say this and that, but I think—I go, you know, you want to duke it out.  We’ll just get Stephan on, and you can come on for an hour.  Now, he’s going to go on from the bottom of this hour to the bottom of the next hour.

00:04:09

The way the schedule works is 7:30 to 8:30 here in the mid of the show.  And then we got Stephan for a whole two hours. Well, this is what I want.  This battle, when Alan comes on, he has an opinion, and a lot of people share this opinion.  Now, some people change their opinion as getting more freedom-oriented, but he thinks that whatever is in his head, and gosh darnit, if he wrote it down, it’s freaking his and protected by the government man.  So I’m going—so that’s the battle we’re going to have.

00:04:40

Now, Stephan has published numerous articles and books on intellectual property law, international law, and the application of libertarian principles to legal topics.  He received an LLM in international business law from King’s College London, a JD from the Paul M. Hebert Law Center at LSU, and BSCE and MSCE degrees from LSU, and he’s been published and on the council of and director and all over the world.  I mean, his opinion means something to a lot of people.  Stephan, how far off am I?  Is there something else you want to add to that?

00:05:12

STEPHAN KINSELLA: No, that’s perfect.

00:05:14

ERNEST HANCOCK: Okay.

00:05:14

STEPHAN KINSELLA: Go Tigers!

00:05:15

ERNEST HANCOCK: All right.  This is what we’re going to do today.  My thing is that it was obvious to Alan, in preparation for his presentation, came across a lot of stuff that he did not anticipate, and I guarantee a bunch of it was you.  And he reads it, and he’s like—and you could see that he had a cognitive dissonance as he was talking in his head, so he wants to carve out intellectual property for copyright.  He doesn’t want to talk about the patents and inventions and all this other stuff that I think is—well, nothing will get invented if you don’t.  And I go, BS.  That’s what’s stopping a lot of innovation.  I’m so sick of this control thing on our brains.  So now, with copyright, define for the audience what we’re going to be talking about.  What’s the difference in copyright?

00:05:59

STEPHAN KINSELLA: Me?  You want me to do this?

00:06:02

ERNEST HANCOCK: Please.

00:06:03

STEPHAN KINSELLA: Yeah, hello?

00:06:05

ERNEST HANCOCK: Yes, yes, please.

00:06:06

STEPHAN KINSELLA: So a patent is a grant the government gives to inventors, that is, inventors of inventions, and an invention is like a practical, useful machine or process that has some practical result or practical application like a mousetrap or a computer or carburetor or a software program.  Copyright is a type of grant given by the government to authors of created works, and examples of that would be a novel, a painting, a movie, a song.  And they are—they last much longer than patents.  Patents expire after about 17 years.  Copyright expires after over 100 years in most cases because it’s the life of the author plus 70 more years.

00:07:00

ERNEST HANCOCK: Okay, when did that change?  That was not the way it used to be, was it?

00:07:04

STEPHAN KINSELLA: No.  Something called the Founders Copyright with the copyright at the beginning of the republic.  The Constitution was ratified in 1789, and within a year or two, the Congress had enacted both a copyright and patent statute.  And the terms for both were about 14 years originally, and that was based upon, believe it or not, the term of an apprentice, which was seven years.  The idea was you should get two apprentice terms because your apprentice is going to learn your secrets, so you need at least a two-apprentice-term monopoly on these ideas.  And the patent term hasn’t changed very much, but the copyright term has slowly expanded over the decades.  Basically, every time Mickey Mouse…

00:07:48

ERNEST HANCOCK: Exactly.  I was just thinking—I go, Mickey Mouse—they’re going—Disney is kind of—and they’re going, nope, forever and always.  Well, we got—Walt Disney died—I don’t know—decades ago.  We’re coming up—maybe in my lifetime, all of a sudden, it’s going to be 70 years after his death.  Does Mickey Mouse go open source then?

00:08:07

STEPHAN KINSELLA: I think one of the most recent ones was the Sonny Bono—you know, Sonny and Cher.  Sonny Bono was a Republican congressman, the one that was too stupid to wear a helmet and hit himself on a tree and got killed.  But before he died, he gave us the Sonny Bono Copyright Extension Act I think in the ‘80s, and that added 20 more years onto the term.  And it actually retroactively covered some things that had already gone public domain, but they got put back into the copyright sphere.

00:08:34

ERNEST HANCOCK: What?  Give me an example.

00:08:36

STEPHAN KINSELLA: I can’t remember an example, but there were court cases challenging it, and the people challenging it lost it, so the works still—and now what we’re doing is, because our term is 20 years longer than most other countries, now we’re trying to force these other countries to add 20 more years like in the TPP, that thing that Trump killed, and in bilateral trade agreements and other trade agreements.  So we use these trade agreements to push our version of IP onto the rest of the world.  I call it a type of IP imperialism.  And this is one of the worst things about these trade agreements.  IP has nothing to do with trade.  That’s the local property rights of a country.  It shouldn’t even be part of the trade agreement.

00:09:16

ERNEST HANCOCK: Okay.  Now, this is a really good example.  You go to China.  You’re in Shenzhen, which is on the mainland across from Hong Kong.  They have—I don’t know—tens of millions of people, and it’s just a bustling thing.  And copyright—you shouldn’t be copying.  That would be bad in this agreement, and that would be bad.  And you go to this five-story building, and it’s all full of DVDs of all that Hollywood just released, and bite me.  Now what?   So I’m—they go, see, they’re cutting in, and I’m going, yeah.  Well, now it’s streaming.  I got my Kodi, and I just go watch whatever I want.  What are you going to do about that?  Somebody’s got to die!  They’ve got to die.  How are we going to do this?  But what should be done?  That’s what we’re going to be talking about.  How should it be?  We’ll be right back.

00:09:59

[commercial break]

00:11:01

ERNEST HANCOCK: Pirates, pirates, pirates.  Go to pirateswithoutborders.com, and one of the big things that we’re really emphasizing—we have the First Letter of Captain Marque, the Second Letter of Captain Marque as in marque and reprisal.  And reprisal is kind of the trinity to the neo-character kind of thing.  Well, reprisal, the first letter, reprisal, is going to be antiwar.  We’re working on this weekend, and within the next week or so we’ll publish the Third Letter of Captain Marque, which will be on communication, which will include copyrights and so on because our whole point is whatever you’re going to do, it can’t have the Crown deciding this and changing the goalposts and doing this kind of crap all the time.

00:11:38

So in our—you go to pirateswithoutborders.com, and you’ll see these letters there, and some of them are read by—you may know the Bad Quaker, Ben Stone.  He does a really good job doing Arrrizona Pirates.  So this copyright thing is a big part of the communication category.  That’s why it’s timely that we do this because starting this weekend we’re going to finalize the letter.

00:12:00

Now, I’m looking at—it’s really moot.  It’s getting to the point with streaming and MP3s or files just going around that.  You’re going to have to come up with another fun, new mechanism and sell lunchboxes or something because the way this is working, it’s done.  So then what do they say?  Well, movies won’t get made if we don’t have—and you’ll never get the movie made, and there won’t be—one, you’re confusing me with someone that cares.  And two, there’s a whole bunch of other ways to do it, and that was what I—have you ever heard of the movie, Iron Sky?  You ever seen that, Stephan?

00:12:35

STEPHAN KINSELLA: I did, yes.

00:12:37

ERNEST HANCOCK: That—do you know how that was made and funded?

00:12:40

STEPHAN KINSELLA: If I recall, it was crowdsourced.

00:12:42

ERNEST HANCOCK: Right.  Now, these guys said, screw your distribution.  We’re not going to put it in the theaters.  Yeah, bite me.  We’re going to do the crowdsourced, funded of—now, Iron Sky 2: The Coming Race is coming with Hitler on his T-Rex.

00:12:55

STEPHAN KINSELLA: Yeah, it’s crazy.

00:12:56

ERNEST HANCOCK: So I’m going, yay.  So I funded—I think I paid 40, 50 bucks or something to get the hat, the t-shirt, and a Blue-ray one of these days or something.  So I go, yes, well, these get funded totally differently.  Well, they don’t like that.  The studios want to have control.  Well, now we got Sony or China comes in and buys up all the intellectual we got, and now we can just make whatever we want, or we can try.  See, I don’t understand what the big aversion is other than it’s like monopolies trying to use government protection to eliminate competition.

00:13:29

And I’m—but against what?  So Alan wants to really focus on the concept: Should there be intellectual property?  Can it be enforced?  My thing is that, look, you can’t enforce it anyway, so what’s the difference?  But he goes, no.  You’ve got to have it, should, and they’re taking from me, and they should stop, and now let’s quit it.  And I’m—so that’s what we’re having a discussion about.  Now, when we come back, I want to keep going on the history of it and how it keeps expanding for Disney and what damage that does.  We’re coming right back.

00:14:02

STEPHAN KINSELLA: We’re not live now?  Okay, got it.

00:14:03

ERNEST HANCOCK: No, no, no, we’re coming right back.

00:14:05

[commercial break]

00:14:38

And we’re going into the ring of fire!  This is a big issue with a lot of people.  They’re like oh, you can’t—oh, it’s one of the last things to hold onto, and they’ll go, hey, man.  The Constitution says—it says—it says copyright.  Right there, it said the word copyright.  We’ve got to have one.  Yeah, it keeps getting higher, but the problem is that it’s always changing.  You have this copyright concept of I get it, and you’re not allowed, and I get to make the money from them.

00:15:12

Okay, then it’s out there for everybody, and they keep changing it.  The Congress keeps changing it because you’ve got people with these interests, big industries like the MPAA.  They’re always on YouTube.  I do that right there.  I put it and they go, oh, you’re flagged.  You’re not—so screw them.  I don’t do it there because this is always this IP stuff.  They’re always wanting to—ah, I heard five seconds of Led Zeppelin, man.  You’re gigged.  I’m going, no.  So this—copyright, give me the concept that you think intellectual property as far as copyright is, should be handled.  What’s been its history, Stephan?  Edu-ma-cate us.

00:15:50

STEPHAN KINSELLA: Well, sure.  So this started with the printing press.  Before the printing press, books had to be hand-copied by scribes, and this was done under the auspices of the church and the king, the Crown.  So they could control which books were going to be published.  When the printing press came out—you know about the Gutenberg printing press—then the monopoly was under threat.  So what the government did, say, in England was they had this thing called the Stationers Company, so it’s like an officially chartered company.  I think it lasted about 150 years or so.  And it had the monopoly on which books could be printed.  But then when its charter expired…

00:16:27

ERNEST HANCOCK: What do you mean a monopoly?  You mean you couldn’t print another book unless you went—it was a royal, We Are the Printer Guys, and you’re not allowed?

00:16:34

STEPHAN KINSELLA: Yeah.  There was one company that had a monopoly on printing, and you had to go through them, and they were under the control of the church and the Crown.  Okay, and so and there are…

00:16:42

ERNEST HANCOCK: Of course they were.

00:16:43

STEPHAN KINSELLA: So if you’re an author of a book, you need to go through them, and you need to watch what you say.  Otherwise, your book won’t be published.

00:16:49

ERNEST HANCOCK: So Martin Luther didn’t get to have them print his Bible.

00:16:52

STEPHAN KINSELLA: Well, okay.  So after the Stationers Company—their monopoly fell, and Martin Luther I guess was Germany, so I’m talking about England here.  The history in Europe is somewhat similar, but the rough history which led to our Constitution was that, in 1709, by then you had a publishing industry that had built up around this—the printing press and the Stationers Guild, Stationers Company.  And so when the charter was going to expire, they lobbied the parliament to enact something called the Statute of Anne in 1709.  And that basically was like one of the first modern copyrights.

00:17:31

ERNEST HANCOCK: Okay, now when did this start?  This is 1709 that they do an extension, but when did the first charter by the king they lay hands on, they get to be the only publisher?  When did that happen?

00:17:41

STEPHAN KINSELLA: Well, I think the Stationers Company started maybe 150 years before, right around the time of the printing press.

00:17:46

ERNEST HANCOCK: Man, as soon as—okay, so as soon as there was the printing press, as soon as there was a fax machine, as soon as there was email, as soon as there was the web, there’s government sitting there saying who can and can’t something.

00:17:55

STEPHAN KINSELLA: Yeah, and there’s a great article on this by Karl Fogel from questioncopyright.org.  It’s on his site, and I have a link to it on my site, CFSIF.org, Center for the Study of Innovative Freedom.  It’s on the Resources page.  But in any case…

00:18:11

ERNEST HANCOCK: I’m sorry.  I’m writing this down; Karl Fogel.  It’s C-A-R-L, F-O-G-L-E?

00:18:16

STEPHAN KINSELLA: I think it’s C, yes, Carl [Karl] Fogel, F-O-G-E-L, and I’ve got his article link.  He’s a great guy.

00:18:25

ERNEST HANCOCK: And what’s the name of the article?  I’m going to have Donna put it up right now.

00:18:28

STEPHAN KINSELLA: I think it’s called—it’s—I forgot the name.  It’s something like The Surprising Origins or History of Copyright, something like that.  But it’s—his website is questioncopyright.org.  But if you go to my site, C4SIF.org/resources, I’ve got that article linked right there.

00:18:50

ERNEST HANCOCK: Okay, Donna is getting that up in the second hour right now.  We want to—they’re going to learn-ify, so we have it for everybody.  Okay, continue.  I apologize.

00:18:58

STEPHAN KINSELLA: And in the commercial, I can send you the link if you don’t mind.  But in any case, in the Statute of Anne, the copyright was given to authors instead of to the publishers.  But it reverted right back to the publishers because of the way the publishing industry worked, which is why we’ve had—up until fairly recently, you’ve had this gatekeeper role of the publishers.  And the same system with the studios in Hollywood and with the music industry.  You’ve had basically artists who have been beholden to the gatekeepers, the publishing industry, which is reliant upon copyright for their business model.  And, of course, they take most of the profits for most artists.  So up until recently, we’ve had this copyright system.

00:19:37

Now, in the US, when the Constitution was drafted in 1787, ratified two years later by 11 states, not 13 as most people erroneously believe, it had a clause saying that Congress shall have the power to protect the works of artists and inventors for their works, for a limited period of time.  So they were sort of giving a nod to the Statute of Anne of 1709, and they were also giving—basing it upon the Statute of Monopolies of 1623, which was the origin of modern patent law in England.  And notice, they called it Statute of Monopolies, so they admitted that patents were monopoly grants by the government.

00:20:22

ERNEST HANCOCK: Well, that was a little badge they got to wear on their chest, man.  The king granted you get monopoly of I’m better than you.  I mean, that’s exactly what this thing is.

00:20:31

STEPHAN KINSELLA: Yeah, or you’re the only guy that can sell buttons in this area, or you’re the only guy that can sell—export sheepskin, and then if anyone else—or you’re the only one who can sell playing cards.  And so then you would have goons of the Crown bust into a pirate’s shop who was selling unmarked cards or unstamped cards and arrest these people.  They would put people to death in France if they sold a button or something that wasn’t approved by the guilds.  It was crazy.  It’s complete protectionism, completely antithetical to free markets and private property rights.

00:21:02

Okay, so basically, the copyright statute was enacted, and we had 14-year terms.  I think it could be doubled.  It could be extended one time so up to 28 years.  But you had to register it.  That was a big difference between then and our modern system.  You had to register it.  You had to actually go to the office and apply.  So the benefit of that was the was the presumption was something wasn’t copyrighted unless it was actually on the registry books of the Library of Congress.  You follow me?

00:21:29

ERNEST HANCOCK: Yeah.

00:21:29

STEPHAN KINSELLA: So at least you could tell whether a book was copyrighted and who owned the copyright.  So you would know who to go to for permission.

00:21:35

ERNEST HANCOCK: There was a form.

00:21:37

STEPHAN KINSELLA: In the late 1800s, there was something called the Berne Convention agreed to by most of the European nations, and America resisted that for almost 100 years because it did what we call abolishing formalities.  The formality would be registering it and putting a copyright notice on it.  So what that means is when we finally acceded in the 1980s to the Berne Convention—so we’re part of it now too—this means that copyright now is automatic.  As soon as you write something down on a piece of paper, you have a copyright in it.  You don’t have to make it public.  You don’t have to put a copyright notice on it.  You don’t have to file a registration for it.  So you can’t copyright something anymore.  Everything you do is copyrighted basically.

00:22:19

ERNEST HANCOCK: Okay, now let me inject here.  This was something that Alan did at his presentation.  He gave everybody a pen and a piece of paper.  Fold it in half.  Okay, now, here’s the front cover of your book.  Write on there the title of your book and buy whatever, and then open it up and put the table of contents.  You do it.  He goes, there you go.  You’re just copyrighted.  You wrote it down.  You got copyright.  You got a sanction of the king because you just did it and kind of don’t you feel good about in the copyright.  And I’m going, so it’s automatic, and it does—so am I feeling better now?  I wrote it down.  It’s out there, and somebody can steal my freaking great new title of whatever, and I don’t care.  So we’re going to talk about the mechanism.

00:23:00

[commercial break]

00:23:03

That’s—sorry.  I just want to get to the end there.  The—that’s what he did, exactly what you’re talking about, and he wanted to emphasize that, that it was automatic, and I’m going…

00:23:13

STEPHAN KINSELLA: He’s correct.  He is correct.

00:23:15

ERNEST HANCOCK: … so?  Yeah, so?  [laughter]

00:23:17

STEPHAN KINSELLA: That’s a bad thing.  It’s a horrible thing.

00:23:20

ERNEST HANCOCK: I’m going, yeah, I’ll write it down.  Now you can’t have that title because I already got that title, and I wrote it here with a witness that signed it.  I got that title.  And I’m going, that is—I’m—when you’re dealing with anybody, I mean, two people, but I mean, certainly billions of people, I’m—there is no original idea.  I mean, that’s pretty—it’s just who does it first.

00:23:40

STEPHAN KINSELLA: The problem with the automatic is it gives rise to this orphan works problem where there’s millions of books out there, and we don’t really know who owns the copyright because they didn’t have to register them.  And the authors are dead or long gone, and no one knows who to contact, and so people are afraid to publish these out-of-print books because some heir might show up and sue you.  But you don’t know who to contact ahead of time, so it’s…

00:24:06

ERNEST HANCOCK: You know, there was a—in the beginning of the Lovelution, I remember, so it had to be ’07/’08 or something.  There was a guy in New York, a libertarian, that that’s what he did.  He had a publishing company that anything that was in the public domain or old works or whatever, he was just printing them, making them available, putting them in nice binding of whatever the hell.  And he was just selling them.  He’s like…

00:24:27

STEPHAN KINSELLA: Yeah.  And people do that now with books that Google Print has liberated because if they’re old enough and you know that they’re out of copyright, okay, so if it’s more than, say, X years old and you know that it’s out of copyright.  But for books that were published—let’s say a book that was published in 1940 or 1920 that’s still under copyright but you don’t know who to contact to get permission, people are afraid to publish those, or they do it taking a risk of being sued.

00:24:51

ERNEST HANCOCK: Okay, well, what about Dr. Zhivago or something, these old books?  I don’t know if they’re old enough yet.  But I mean, just some of these old classics, Frankenstein or something, can I print a gazillion copies of that and put my logo on it and sell it?

00:25:03

STEPHAN KINSELLA: If it’s out of copyright, you could.  But you have to—there’s all these copyright sherpas or calculators online.  You could—you enter in the publishing date and a couple of other facts, and it will tell you whether it’s still under copyright because there was lots of these transitional regimes, and it’s hard to keep track of exactly when.

00:25:18

ERNEST HANCOCK: Okay, now what am I looking—if I put Frankenstein…

00:25:24

STEPHAN KINSELLA: What you would do—well, yeah.  First, you’d look up when Frankenstein was published, so you just need the publication date.  And then you would look up copyright term calculator.  Google that.  You’ll find a couple, and you could just enter the information in, and it will tell you whether it’s in the public domain or not.

00:25:39

ERNEST HANCOCK: Okay, now what am I looking for?  I was looking at the date.  It was 1851 or something.  That was a long time ago.

00:25:43

STEPHAN KINSELLA: Yeah, so look at the copyright date and/or the publication date.

00:25:48

ERNEST HANCOCK: What was that site you said?  It was copyright what?

00:25:50

STEPHAN KINSELLA: I would just Google “copyright term calculator.”

00:25:55

ERNEST HANCOCK: Copyright term calculator.  Okay, are you getting Alan?

00:26:04

ALAN KORWIN: Hey.

00:26:05

ERNEST HANCOCK: Hey, Alan.  Hold on a second.  We’re in a break.  We’re getting right to it.  Okay, copyright term calculator, blah, blah, blah.  Go to try now.  I go here.

00:26:15

ALAN KORWIN: I can year you, Ernie.  Can you hear me?

00:26:17

ERNEST HANCOCK: Yeah, I got you.  Just hold on.  We’re setting something up.  They’ve got a copyright calculator.

00:26:24

ALAN KORWIN: I can see a static picture of Stephan.

00:26:28

ERNEST HANCOCK: Yeah, you’re good.

00:26:29

ALAN KORWIN: Stephan, can you see me or hear me?

00:26:31

STEPHAN KINSELLA: Let’s see here.  I’m actually not looking at the…

00:26:34

ERNEST HANCOCK: Yeah, he’s not…

00:26:35

STEPHAN KINSELLA: I do see you.  I don’t have my video on.  I didn’t think I was supposed to put my video on.

00:26:38

ERNEST HANCOCK: No, you don’t have to.  It doesn’t matter.  I got…

00:26:41

ALAN KORWIN: Go ahead.  Put it on.  Let’s see each other.

00:26:44

STEPHAN KINSELLA: I thought it might be a bandwidth problem, but no, I’m here.

00:26:46

ALAN KORWIN: Oh, there we go.  I’m using the microphone in my machine.  That’s how I usually do Skype.  Is that okay?

00:26:52

ERNEST HANCOCK: Yeah.  It’s a little echoey, but see, we got graphics here also.  Take a look at the screen.  You can see there’s graphics, everybody, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah, blah.  See, this probably gives more information as you guys are talking.  So we can do the video a little bit, but let’s go ahead and we’ll…

00:27:13

ALAN KORWIN: Nice to make your acquaintance, Stephan.

00:27:14

STEPHAN KINSELLA: You too, Alan.

00:27:16

ALAN KORWIN: I’ve read some of your work.  Have you read any of mine?

00:27:18

STEPHAN KINSELLA: I didn’t hear your last name, to be honest.  Sorry.

00:27:22

ERNEST HANCOCK: Korwin.

00:27:23

ALAN KORWIN: [indiscernible_00:27:24]

00:27:26

STEPHAN KINSELLA: What is it?

00:27:27

ALAN KORWIN: Korwin.

00:27:28

ERNEST HANCOCK: Okay, we’re back.  We’ve been yacking, and it’s come back, and this is what we’ve been doing.  Alan Korwin is on with us.  Let me go ahead and give you a quick intro of Alan.  He’s a full-time writer whose three-decade background includes working business, legal, news, entertainment industries.  Mr. Korwin wrote the business plan to raise $5 million in venture capital and launched in the in-flight catalogue, SkyMall.

00:27:51

He did a publicity campaign for Pulitzer Prize cartoonist, Steve Benson in his fourth book, Where Do You Draw the Line?  Invited twice to US Supreme Court to observe oral argument in second amendment gun right cases, which was a book that was well-received.  And he’s written ten of his 14 books on that subject, and is among the leading national experts in that field on gun rights.

00:28:14

Now—and then he goes on.  He does a bunch of other stuff, and Alan Korwin, a good friend that’s here in the Valley, but definitely—he’s got to lean in more and more and more and more, and then all of a sudden, he starts saying he’s libertarian.  But he’s got this copyright thing going on.  So we’re looking at this, and one thing that we’re looking at is the copyright calculator.

00:28:34

Now, I’m going, where is this limit?  Well, if I look at Frankenstein, and it’s published back in—I think it was 1850—I don’t know—the 1800s.  It was early in the 1800s.  And then, all of a sudden, how many years have to go by before I can just take all that and print it and do it and sell the book, put a pirate face on it?  I mean, I can do whatever.  Well, it keeps changing.  Well, in the Constitution, it has the word copyright.  Man, Alan will tell you all about it.  So, Alan, go ahead and do your introduction and what your position is, and then we’ll get into it with Stephan.

00:29:12

ALAN KORWIN: Well, thank you, Ernie, and it’s always a pleasure to be with you; Stephan, a real honor to be with you and maybe explore this issue.  When I was asked to do a presentation on this, I’ve been a copyright practitioner for decades, and I was actually surprised to find that libertarians were vigorous defenders of private property rights, which I think is the correct position to take, are mixed about whether intellectual property is real, whether it deserves protection, whether copyright is real.  That actually shocked me, the idea that anybody can question whether copyright is real, whether authors own their works.

00:29:54

I read your paper on intellectual property, and I’d like to ask you some questions about it, help clarify it, and maybe help me understand it better.  There is no doubt in my mind, at least at the moment, that copyright is real, that it’s protectable.  It’s a bundle of rights.

00:30:14

I own them as the creator.  I heard Ernie mention that I had the people at this presentation create a copyright of their own, start a book right there in the room.  They all started a book, and they own it by the fact that they created it.  Of the three types of property, realty, which is land and what’s on it, personalty, or chattel, moveable, personal property, and a variety of names, but intellectual property, which is a bundle of things, or what I call mentality, things you create in your mind.

00:30:49

These are all very real.  They’re all entitled to protection.  They all have value.  They can all be bought or sold.  And apparently, you don’t feel that intellectual—or clarify it for me.  Intellectual property is real.  You can buy it, sell it, own it, trade it, license it, do things with it, and the idea that people can steal it and that’s okay, I don’t get it.  If somebody takes my song, performs it somewhere, makes a million dollars, and that’s their money, not mine, or there isn’t some division of the money they got from my property, maybe you can help me understand why that’s okay.

00:31:33

STEPHAN KINSELLA: Sure.

00:31:34

ALAN KORWIN: Most of the world accepts that copyright is real, that my right to copy it rests with me, and that I can license it or sell it or let them use it, but if they use it without me, there’s an injustice in that.  And I’m not talking about the law, per se.

00:31:52

ERNEST HANCOCK: Okay, let go ahead and respond before we run out of this segment.  Go ahead, Stephan.  Give him what for.

00:31:56

ALAN KORWIN: Go ahead.

00:31:57

STEPHAN KINSELLA: Let me make a couple of fairly short assertions, and then you can respond when we have—maybe after.  First of all, the Constitution does not mention the word copyright.  It says to promote the progress of science and the useful arts by securing, for a limited time, to authors and inventors the exclusive right to their writings and discoveries.  Okay, so that’s what gives Congress the authorization.  I wouldn’t deny copyright is real.  It is a real law that exists because Congress has enacted a copyright statute, which is rooted back in the Statute of Anne from 1709 or ’10, as we mentioned earlier, which is rooted in the prior monopolization of the printing press and the scribes by the government and by the church.

00:32:40

So the question for me is not whether it’s real.  I agree that it exists and that you can get copyrights in a book.  I think you’re wrong to say—to use the word steal just as a legal matter because, even under the current law, if you copy someone’s book, it is not stealing.  It’s considered copyright infringement, and there are damages payable, but it is not stealing.  Even the Supreme Court has recognized this. It’s not stealing, and it’s not taking because if I copy what you wrote, you still have what you wrote, so I’m not taking something from you.

00:33:13

You could say I’m taking your customers, or I’m taking money that you could have made, but that’s a different issue.  So stealing is actually just legally the wrong word.  And also, as a legal geek, technical matter, you’re wrong to say there are three types of property—immoveable or realty and personalty or movables and then this other category.  As a legal matter, copyright is classified as an incorporeal or an intangible moveable because the way the division between moveable and immoveable works is that everything that’s not immoveable is moveable.  That’s just the way it works.  So if it’s land, it’s immoveable, or if something incorporated into the land, everything else is moveable.  So if you’re going to call copyright a property right, it is actually moveable, which makes no sense I know, which gets to the problem with the idea of property in ideas.  To call an idea moveable makes no sense anyway.

00:34:09

ALAN KORWIN: So let’s start with the first one.  I can trace copyright back to 560 A.D.

00:34:14

STEPHAN KINSELLA: Yes.

00:34:15

ALAN KORWIN: The legal history is 1400 years old.  The Statute of Anne in 1709 is the western civilization statute, but it goes back to the church and recognition that an author owns the author’s work.  So the legal history is quite old.

00:34:34

STEPHAN KINSELLA: It’s actually about 1000 years older than that, Alan.  In about 400-500 B.C., there was a Greek city-state, Cerberus, or something like that.  And they had a cooking competition, and whoever won would get a monopoly on their recipes for a year, so I mean, the idea is pretty old.

00:34:52

ALAN KORWIN: So when we’re done, let’s stay in communication.  You’ll send me that.  It goes back to the Torah, and a member of Chabad gave me a book called Copyright in Jewish Law, which was an inch and a half thick, and went through the religious scribes and what they found, and it was fascinating.  But the Torah is filled with when you can copy and when you can’t and when you are taking—doing a taking of somebody else’s work.  So the age of it doesn’t just trace back to the first law, and some of the laws are out of whack.  I think we’ll agree on that.  But the principle that you hold…

00:35:32

ERNEST HANCOCK: You agree that laws are out of whack, that there is a law—that they’ve even got a law, in the Crown of the law?  Is that what you’re saying, Alan?

00:35:36

ALAN KORWIN: Ernie, I know your distaste for law and government.  That’s famous.

00:35:41

ERNEST HANCOCK: See, this is my point.  I want to make sure—I’m going to let you guys go, but I want to make sure that my opinion gets in there is that if I have an idea or I’m writing something or I’m doing—I’m not looking for a blue pages or an index or a list to go check to see if somebody else thought of it first.  When my ideas on built on 15 gazillion, and somebody after me is going to copyright something they got from me, or hell, they do it.  They do bumper stickers and so on.

00:36:06

I am not—as a practical matter, I don’t even see how this can be enforceable in the digital age now.  I mean, it’s not.  So let’s go ahead and—I know your opinion, Alan, but I want to—this is fascinating, the history that you guys are going through.  I just have—the fact that there’s a history, and a bunch of kings and potentates and democracies and governments and all this with shiny badges and guns said so doesn’t mean squat to me.  I don’t care.  I want to get down to the principle of should it or even can it.  So when we come back, you guys go to the livestream.  It’s on freedomsphoenix.com.  Top right, you can get the audio livestream during the live show.  And if you go to the—on the left with the video streaming, you get the break conversation, which will be in the archive, but you’ll get that talk.  Listen to it live right now.

00:36:59

[commercial break]

00:38:01

ERNEST HANCOCK: I’m sorry.  What?

00:38:02

STEPHAN KINSELLA: I was just trying to talk to Alan.  I was just wondering if he could see the text window in the Skype here.

00:38:09

ALAN KORWIN: All I see is the audio track.

00:38:13

STEPHAN KINSELLA: Oh.

00:38:15

ERNEST HANCOCK: Oh, well, here.  I can—well, if I do this, and…

00:38:21

STEPHAN KINSELLA: If you’re in Skype, you can click on that little…

00:38:22

ERNEST HANCOCK: If you click on that little chat thing at the top right, it has a word bubble.  You do that, and you’ll be able to see the…

00:38:29

STEPHAN KINSELLA: If I can find that link, I can send you guys a couple of links.

00:38:31

ALAN KORWIN: Please do, but I’m not going to distract and see it.  Are you getting a strong moray pattern off my shirt?

00:38:38

ERNEST HANCOCK: Not bad.  You’re okay.

00:38:40

ALAN KORWIN: Okay because…

00:38:41

ERNEST HANCOCK: It’s more echoey on your audio than anything.

00:38:43

STEPHAN KINSELLA: You don’t have a microphone, like earbuds or something you can…

00:38:46

ALAN KORWIN: I do but not a place to plug it in on this machine, and in the past, this has worked fine.  I’ll get a little closer.

00:38:52

STEPHAN KINSELLA: It’s audible.

00:38:54

ERNEST HANCOCK: It sounds like you’re in a bathroom.

00:38:56

ALAN KORWIN: Send me your email, would you, Stephan?

00:38:57

STEPHAN KINSELLA: Sure.  Yeah, I’ll do that.

00:39:00

ALAN KORWIN: And then, when we’re done, I’ll send you mine, but I’ve got to be out of here really quick.  We have opened so many topics.  There’s no way we’ll be able to cover this all.

00:39:08

ERNEST HANCOCK: Well, no.  We’re going to focus on the copyright and the right: should, could—it doesn’t matter to me because it’s going to get to the point where it’s irrelevant.  It’s moot.  But should?  Where does this—you’re saying it needs to be protected.  All right, here we’re coming back.  Here we go.

00:39:25

M: At LRN.FM.

00:39:28

M: Freedom’s the answer.  What’s the question?  You’re listening to Ernest Hancock.

00:39:33

ERNEST HANCOCK: And we’re right back with Stephan Kinsella and Alan Korwin talking about—the history and all this is fascinating, but it all comes down to one thing for me.  My thing is that, yeah, that’s all very interesting, what kings and governments all said about what they can do and who it gets the monopoly of and the grant of the charter of you’re allowed to print this and you’re not, and you can’t think and share.  And I’m like, none of your freaking business.  I don’t care.  My thing is you don’t want me to know it, and you don’t want me to build on the idea.

00:40:01

You don’t want me to write about it.  Then don’t freaking tell me because I’m not going to sit there and take a butterknife to my brain and try and carve something out of what I can or can’t use and how.  And I’m not doing it, not, not, not.  And technology is getting to the point that it’s moot anyway, but to have the conversation to talk about how it evolved, and it keeps changing.  Disney’s Mickey Mouse is going to copyrighted forever, which means other stuff is going to be done too because they got the pressure to go to Congress and get them to pass something of I get Mickey Mouse.  So I’m going—all right, go ahead.  Go, Alan.  Go do your thing.

00:40:38

ALAN KORWIN: Ernie, let me address this.  Your distaste for government and rules is famous, and I understand that.  So let me address this, and I might be a little sarcastic, but you know me.  Let me address this in terms you can understand, and maybe Stephan can help us clear it all up.  You’re concerned about who invented it first and that the words are always there, and I used two examples before.  I’ll use them again.  Johnny B. Good by Chuck Berry—he invented it first.  Nobody invented it before him, and nobody is going to invent it after him.  It’s unique.  And Michelle by the Beatles—they invented it, nobody before them, nobody after them.  It’s unique.  It’s theirs.  We all love it.  We enjoy it.

00:41:23

ERNEST HANCOCK: I thought it was Michael Jackson’s now, but anyway.

00:41:25

ALAN KORWIN: Okay, because it can be sold.  It is a piece of property.  Do we agree that those two songs are pieces of property and that they have value…

00:41:38

STEPHAN KINSELLA: No.

00:41:39

ERNEST HANCOCK: No.

00:41:39

ALAN KORWIN: Let me finish.  Do we agree that they’re pieces of property and that you can own them, sell them?  People are willing to spend money to get them, and they have to spend the money somewhere to buy them.

00:41:50

ERNEST HANCOCK: If they’re in an album, if you’re talking about the actual book itself, if you’re talking about the CD, if you’re talking about the means of transfer of—I got my goodies and I hold it, yes.  But the actual…

00:42:00

ALAN KORWIN: Let me clarify.

00:42:00

ERNEST HANCOCK: See, you’ve got to clarify.

00:42:02

ALAN KORWIN: Let me clarify it.  Now, I play the song, but we’ll use Chuck Berry.  When he invented, out of thin air, something that didn’t exist, not atoms in the universe but a piece of mentality, a song, he created it.  It would be fraud to say—how can I put this so you’ll get it?

00:42:25

ERNEST HANCOCK: That somebody else made it?

00:42:26

ALAN KORWIN: Johnny B. Good by Ernie Hancock.  That would be fraud.  Do we agree?

00:42:32

STEPHAN KINSELLA: No, it wouldn’t.  No, I disagree with that, actually.

00:42:34

ALAN KORWIN: It wouldn’t be fraud to say…

00:42:37

ERNEST HANCOCK: Let Stephan go ahead and respond.  Go ahead.

00:42:40

STEPHAN KINSELLA: Let me just have a couple of things where I would clarify.  First of all, Johnny B. Good was invented by Marty McFly.  If you remember Back to the Future, there was a time loop so…

00:42:48

ALAN KORWIN: You’re being silly.  Let’s be serious.

00:42:50

STEPHAN KINSELLA: I’m just joking.  I’m just joking.

00:42:51

ALAN KORWIN: Try and be serious…

00:42:54

ERNEST HANCOCK: No, no, let him respond.  Alan, let Stephan respond.  Go ahead, Stephan.

00:42:57

STEPHAN KINSELLA: It’s just a joke.  It’s just a joke.  Look, Ernie and I—I think Ernie and I are not against rules or law.  We’re just against the state.  Whether we’re against government or not depends upon how you define government.  If you mean that the governing institutions of law and order, I’m not against that.  I’m just an anarchist, so I’m against the state, so if you’re precise with your terms.  But we’re not against law.

00:43:17

ALAN KORWIN: I addressed that to Ernie, not you, Stephan.

00:43:19

STEPHAN KINSELLA: Well, I think we feel similarly on that.

00:43:22

ERNEST HANCOCK: Stephan and I are—when he says something that I don’t agree with, I’ll say.  Go ahead, Stephan.

00:43:26

ALAN KORWIN: Try and address what I said, and we’ll get somewhere.

00:43:28

ERNEST HANCOCK: He’s going.  If you’ll let him, he’ll do it.  Stephan, go.

00:43:31