Kinsella on Liberty Podcast, Episode 193.
This is my appearance on Albert Lu’s “The Economy” podcast. This is part 3 of 3. We discussed property rights, bitcoin ownership, intellectual property, and related matters.
See also: KOL085 | The History, Meaning, and Future of Legal Tender
Episode video below:
Full video of all three parts below.
Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 23:42 — 21.7MB)
Kinsella on Liberty Podcast, Episode 192.
This is my appearance on Albert Lu’s “The Economy” podcast, Episode 2015-9-23. This is part 2 of 3. From Albert Lu’s description:
Your host Albert continues the discussion with patent attorney Stephan Kinsella. In the second of a three-part interview, they discuss the concept of “ownership”.
Topics Covered
Part 1 is here: KOL191 | The Economy with Albert Lu: Can You Own Bitcoin? (1/3).
Part 3 follows in the next episode.
Episode video below:
Full video of all 3 parts here:
Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 20:32 — 18.8MB)
Just found this old letter I had published in the ABA’s Young Lawyer division magazine, Barrister (now Young Lawyer), from 1996. I was reminded when I saw this scan of 
from a fellow lawyer about it (to right). Coincidentally, I met and became friends years later with Raquel “Rocky” Rodriguez through my involvement with the MultiLaw group.
For a related letter, see my post about “The Enlightened Bar.”
Stephan Kinsella, Esq.
66 Bridle Way · Newtown Square, Pennsylvania 19073 · USA
(215) 751-2157 (work) · (215) 972-7362 (fax) · (610) 325-3360 (home) · [email protected] (internet)
January 11, 1996
Diana L. Moro, Editor-in-Chief
Barrister Magazine
Young Lawyers Division
American Bar Association
750 N. Lake Shore Drive
Chicago, Illinois 60611
Re: Letter to editor in response to Raquel Rodriguez’s “Chairperson’s Column” in the Winter 1996 issue of Barrister Magazine
Dear Ms. Moro:
Please consider the following for publication as a letter-to-the-editor in Barrister Magazine.
Raquel A. Rodriguez suggests, in her Winter 1996 “Chairperson’s Column,” that lawyers should support federal funding for the Legal Services Corporation (LSC), which provides legal services to the poor. Ms. Rodriguez states that this “is not a partisan issue” and implies that all reasonable attorneys “agree on the importance of keeping LSC alive.”
Ms. Rodriguez has a right to her own opinion concerning LSC, but so do others who oppose LSC. I reject her attempt to paint anyone opposing LSC as being outside the mainstream and as therefore wrong. If it is reasonable for Ms. Rodriguez and others to support forced “charity,” despite America’s strong individualist, anti-statist origins, then certainly attorneys that still adhere to the classical liberal wisdom of the Founders can also reasonably oppose socialist policies. Lawyers having a principled opposition to statism and institutionalized aggression against property rights should not be excluded from the realm of reasonable discourse, especially not in the land that gave birth to the Declaration of Independence.
What Ms. Rodriguez is recommending is that attorneys urge Congress to enact laws to forcibly take the property of citizens and redistribute this confiscated property to others. To some this smacks of mob rule and organized theft, which is certainly not something that a supporter of the rule of law should encourage.
And in addition to the ethical (de)merits of programs like the LSC, I am unable to find authority in the U.S. Constitution for Congress to create or fund the LSC. The LSC is clearly unconstitutional, whether one likes it or not, whether the Supreme Court recognizes this or not. As lawyers, and, indeed, as citizens, we have a moral and civic duty to support and defend the Constitution. Indeed, lawyers take a solemn oath to support the Constitution. This duty seems completely forgotten by many lawyers today who agitate for blatantly unconstitutional laws. I would urge that attorneys keep in mind their Constitutional responsibilities and not advocate organized theft or other unconstitutional laws. Far better to encourage respect for individual rights and for the Constitution.
Very truly yours,
Stephan Kinsella
No no, we’re done having kids. None of this prepper “have a ton of kids” stuff.
Kinsella is for me an interesting name to have inherited (literally, as I’m adopted). It’s not too weird, hard to spell, or ethnic, yet not too common here in the US. Every now and then someone says “say, Kinsella, as in Ray Kinsella, from Field of Dreams“? Yep. Or Sophie Kinsella of Confessions of a Shopaholic—? Yep, but hers is a ‘nym. There’s WP Kinsella, related somehow to that baseball lore of Field of Dreams fame. I can’t keep it straight.
As far as I can tell the Kinsellas came from some county in Ireland. When I visited Ireland as a law student I did see Kinsella sometimes, so it’s more common there than in the US. Apparently it’s rooted in some gaelic thing like “Cinnsealach” or something hard to remember and to care about. Apparently the “same” as Tinsley or Kinsley or Kinsel. Whatever that means—to be “the same”. But apparently they all mean “unclean head.” That’s right, I’m a “dirty-head”.
Since people are stupid they can’t tell the difference between Stephen, Steven, Stefan, and Stephan. And Steffen and Steffond, and so on. So over the years, well, there are enough Kinsellas so that there are some Stephens out there. No Stephans as far as I can tell, but people are too stupid too tell the difference. After all, a and e used to be the same letter, hence the dipthong æ. Or something.
So as my career progressed as did my notoriety in free market/libertarian circles, and on the Internet, occasionally I became aware of a couple of other Kinsellas who were similarly-named: a couple of Stephens. Not Stephan but close enough for regular people to think it’s the same. One is an antitrust (competition) lawyer in Europe, Stephen Kinsella. Another is an economic journalist in Ireland. We’ve talked from time to time. Sometimes we get each other’s emails. We help each other out.
The Irish Economist one, Stephen Kinsella, occasionally receives emails meant for me [[email protected]; Stephen Kinsella, PhD, Senior Lecturer in Economics, University of Limerick, Ireland; see e.g. his bitcoin comment here]. Why? Because people can’t tell e from a. He got one meant for me from Southwest Airlines last year about one of my flights, and helpfully sent it to me. And just a few months ago he received a paper from an anarchist from PorcFest meant for me, but sent to him by accident, which he sent on to me. And he told me: “I’m the Irish economist one. The Irish journalist one was actually one of my students, just to make it more confusing.”
And there is another guy, Nate Kinsella, I think he’s some kind of artist in New York, who gets my emails occasionally, since his is nkinsella@ gmail and mine is nskinsella@gmail, and he graciously forwards them on to me. He’s helped a brother out a few times.
I mean, look, I have this haunting feeling I am the only libertarian Kinsella. Let’s not be fooled by similar surnames. After all, my original surname was Doiron. So… I mean come on. If my brother, sister, and parents are not libertarian, why should these Euro-Kinsellas be? However, I will say my wife and son are pretty damn libertarian. At least I have some influence over them.
Anyway the latest entrant into the Kinsellaverse: someone named Eileen Kinsella, reporting on some copyright-related lawsuit in Australia.
I have half-a-mind to wrangle some of these Kinsellas into a libertarian-themed podcast interview just to see what a disaster it might be.
Update: Stephen Kinsella’s I am Not
This is my appearance on Albert Lu‘s “The Economy” podcast. This is part 1 of 3. We discussed property rights, bitcoin ownership, intellectual property, and related matters.
Parts 2 and 3 to follow in due course.
Relevant links at KOL274 | Nobody Owns Bitcoin (PFS 2019).
See also: KOL085 | The History, Meaning, and Future of Legal Tender.
Episode video:
Full video below:
Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 20:19 — 37.7MB)
Kinsella on Liberty Podcast, Episode 190.
This is my talk “On Life without Patents and Copyright: Or, Who Would Pick The Cotton?”, delivered at the Property and Freedom Society, 10th Annual Meeting, Bodrum, Turkey (Sep. 13, 2015).
Also available as PFP143 (which contains the official audio instead of the iPhone audio).
GROK SHOWNOTES: In this lecture delivered at the Property and Freedom Society’s 10th Annual Meeting in Bodrum, Turkey, on September 13, 2015, titled “On Life without Patents and Copyright: Or, But Who Would Pick the Cotton?” (KOL190), libertarian patent attorney Stephan Kinsella argues that intellectual property (IP) laws, specifically patents and copyrights, are state-enforced monopolies that violate natural property rights and hinder innovation (0:00-10:00). Kinsella, using Austrian economics, explains that property rights apply only to scarce, rivalrous resources, not non-scarce ideas, and illustrates with examples like pharmaceutical patents that raise prices and limit access (10:01-25:00). He traces IP’s origins to historical monopolies, such as the 1623 Statute of Monopolies and 1710 Statute of Anne, and critiques their role in enabling censorship and economic distortions, arguing that abolishing IP would eliminate these harms and foster a freer market (25:01-40:00). Kinsella’s provocative title challenges the notion that IP is necessary for innovation, likening it to outdated justifications for slavery.
TRANSCRIPT and Grok Detailed Summary below
Transcript below.
Video below. This version is taken from my iPhone recording. My notes used for the speech are pasted below. Also below is a video of the Q&A panel session following the talk.
Related: Do Business Without Intellectual Property (Liberty.me, 2014) (PDF).
NOTES
On Life without Patents and Copyright: Or, But Who Would Pick the Cotton?
Stephan Kinsella
Kinsella Law Group, Libertarian Papers, C4SIF.org
Property and Freedom Society, 10th Annual Meeting
Bodrum, Turkey (Sep. 13, 2015)
TRANSCRIPT
On Life without Patents and Copyright: Or, But Who Would Pick the Cotton?
Stephan Kinsella
Kinsella Law Group, Libertarian Papers, C4SIF.org
Property and Freedom Society, 10th Annual Meeting
Bodrum, Turkey (Sep. 13, 2015)
00:00:22
STEPHAN KINSELLA: Thank you, Hans. It’s a pleasure to be here once again at the PFS. I think this is my seventh or sixth for sure. Hans is right. I was at the first meeting, and it was great, and it’s gotten better every year since. So it’s good to be at the PFS, or as I’m starting to think of it, the land of successive hangovers. I talked to Hans the other day. He told me he doesn’t do a lot of interviews. He gets requested to do podcasts because he doesn’t like to repeat himself, so I appreciate his asking me to speak on intellectual property for the first time ever. It’s all right. When I’m not known as Hoppe’s amanuensis, I’m known as Mr. IP, which is – it’s fine. I’ve accepted that instead of being the handsome guy from Louisiana or the guy who’s written 17 articles with Walter Block.
00:01:19
So I am an IP attorney. I often get the question how can you be an IP attorney and hate IP? It’s a strange question I think but hasn’t harmed me too much. Usually I’ll give a talk on IP, and people come up and they say oh, I agree with you. IP is horrible. Would you please write a patent for me? So it hasn’t harmed my career for some strange reason. I really don’t understand it. It’s almost like hiring an oncologist to help you with your cancer. That makes no sense, right? My topic is, “Life Without Patent or Copyright,” and I have a subtitle: “Or, But Who Would Pick the Cotton?” Sometimes people ask how would people make money in an IP-free world, which is the question that’s really behind this one. The problem is questions about IP are often confused, and so when I talk to people and when I think about these issues, I try to separate the issues and look at it differently.
00:02:22
There are at least three separate issues to consider. The first one is a normative question. Should we have patent and copyright law? It’s a libertarian question. The second question is a practical one. It’s really life with IP instead of life without IP. It’s given that we do have an IP system, patent and copyright. IP means intellectual property by the way. Patent and copyright are two of the biggest types of IP. Trademark, trade secrets, and other things are other types, which I probably won’t mention much today. Okay, so the second question is given that we have IP, how should people react to it and what should we do about it? And then the third, which is more or less the main topic today, is what would an IP-free world look like, which is really a prediction. So that’s a question about what would the world look like if we didn’t have IP?
00:03:07
These are all separate questions, and they’re often intermingled, but let me start with the first briefly. Is anyone here not familiar with why IP is horrible, or can I just skip that? See my 100 other lectures on this on my website. But in short, the problem with IP is that it is a violation of property rights.
00:03:31
The libertarian view is that there are property rights assigned to scarce resources over which there could be conflicts, scarce resources in the world that we need to employ to have successful action, and these resources’ nature is such that there could be conflict. And to avoid having conflict and to be able to use these resources productively and peacefully, we establish property rules.
00:03:53
So there’s an owner of a resource, and everyone knows the boundaries or the borders of this resource, and they can live in cooperation with each other. And the libertarian rule is that the owner of the resource is the first user of the resource or someone he has given it to by contract or someone to whom he owes compensation because he’s committed a torte against them. Those are basically the three rules of libertarian property rights, and IP basically says someone who has not contractually acquired a resource, who has not originally appropriated the resource, who is not owed the resource because of a torte committed against him, that person has a veto right over how other people use their legitimately owned resources.
00:04:33
That is what IP is. If I have a copyright, I can use state force to prevent you from publishing a book using your own paper and ink. If I have a patent, I can use the state force to prevent you from making a mousetrap using your own wood and steel, which is in law what we call a negative servitude. That means I have a partial property right in your rights even though I didn’t acquire that right contractually. So all we have is the state expropriating property, transferring it from one person to another, taking my property, and leaving me with some ownership but transferring a negative servitude to other people who have nothing to do with the resource. This is why IP is theft and wrong. That’s the nutshell case against IP. That’s the principle propertarian case against IP.
00:05:17
The other case is a negative case, and that is the main argument given for IP now is not the natural rights argument because it’s incoherent. The main argument is that – is a utilitarian argument, that we need IP to stimulate innovation or to have more innovation than we would have otherwise.
00:05:33
Without IP we wouldn’t have enough books written, enough movies produced, enough pharmaceuticals produced, etc., and therefore the state needs to step in and give temporary monopolies in the form of copyright and patent in the hopes of optimizing the production of innovation in society. That is the simple argument. It’s never stated that plainly because it’s so stupid, but – and in fact there’s no evidence whatsoever for this. All the studies that empiricists do—empirical economists do—indicates otherwise, indicates that the patent system reduces innovation, imposes billions of dollars of cost on the economy annually. The copyright system censors free speech, reduces the flow of knowledge. If you were a real sincere utilitarian, you would actually be opposed to IP because the evidence is against it. So those are the two basic arguments against IP.
00:06:25
Now, the second question and the third, I want to make a point. People say, but how would I make money in an IP-free world So I want to make a point that we have to keep in mind that questions are fine, but questions are not arguments, so we have to keep that in mind. If you ask a question that’s fine, but it’s not necessarily an argument. Quite often, questions are not sincere, or they’re loaded, or they’re question begging, or they’re just rhetorical. And the reason my subtitle is, “But Who Will Pick the Cotton,” is suppose I present the libertarian case against slavery, and suppose we have slavery and I’m saying we should abolish slavery. And someone says, but who would pick the cotton? That is not a good argument against my case that slavery is immoral and should be abolished, and it’s probably not a sincere question either. I mean the real answer would be I don’t know who would pick the cotton, or maybe someone would pick the cotton, and slavery has to be abolished.
00:07:22
Okay, so we have to keep that in mind. Other types of questions are like why do you support intellectual communism? That’s kind of a loaded question, or, but you’re an IP lawyer. It’s as if Stephan Kinsella, one person living in Texas, happens to have the power of the Beyonder or the Molecule Man. I can change the structure of moral reality by my choice of career. It’s bizarre. It’s possible that there’s a right and wrong to an issue despite my personal choice of career.
00:07:54
So these kinds of questions – another would be like we have communism. We have one supplier of toothpaste and cars, and they’re all crappy, so one says, well, I don’t want to abolish communism. I’m not sure how many cars there would be or how many car brands there would be. Who would make the toothpaste? How many brands of toothpaste would there be? And unless you can tell me in a free society how many brands of toothpaste there would be, we’re going to keep communism. I might not know how many brands of toothpaste there are going to be. I could guess, but the answer is let’s free things up and see.
00:08:24
So when I get the question about how would movies be produced in a free society, how would I get paid for this in a free society, we might have some ideas and I’m going to go into those. But if I don’t have an answer it just means I can’t predict what a liberated society would look like. It doesn’t mean that we shouldn’t liberate society and restrict it – free it from these patent and copyright restrictions.
00:08:45
Now I also want to make another point. We can’t pretend that abolishing IP would have no effect. The only reason we oppose – as libertarians we oppose some laws is because laws do have an effect. If a law didn’t have an effect, we wouldn’t mind it. If the tax law was totally ignored, I wouldn’t mind. If the drug war was just a hortation from the state but they didn’t put anyone in prison, we wouldn’t be railing against the drug war. It wouldn’t really be a drug war at all.
00:09:15
So the only reason we oppose laws is because they do have an effect, because they are enforced, which means that if you get rid of these laws, society will change because it’s changed by the imposition of a law in the first place. So we can’t deny that getting rid of something, some law, would not have any effect. I don’t deny that. So it is possible that there’s an overproduction of some types of goods now because of patent and copyright and there’s an underproduction of others. And if these laws are lifted, the overproduced goods and services will go down, and the underproduced ones will go up. This doesn’t mean that patent and copyright should not be abolished.
00:09:53
00:09:59
So I will – I entertain questions about what would an IP-free world would look like as long as the question is not formed effectively as, all right, I want you to tell me what an IP-free world is going to look like. And unless you can tell exactly to my satisfaction, I’m going to still support IP. I don’t accept that.
00:10:18
So let’s talk about – before a life without IP, let’s talk about life in a world with IP, the world we have now. How should be people live in this world that we live in today? Now, this is mainly a practical and an ethical question. So first I would say if you recognize that patent and copyright are completely illegitimate and monstrous interventions into the free market and violations of property rights, there is nothing immoral whatsoever about infringing patent and copyright if you can get away with it. I’m not saying it’s prudential in every case. I think people should be careful, but there’s nothing immoral whatsoever about copying information, competing with people, using information that’s publicly available, emulating it, etc. So it is – in my opinion, there’s nothing un-libertarian or immoral about it. People that pirate movies—nothing wrong with it whatsoever, maybe a little risky. I don’t do it. I don’t think I could play dumb American if I got caught.
00:11:15
And we also have to recognize that in today’s world in many areas, fields of business and technology and life it’s difficult to avoid using IP or being faced with threats of IP because it does exist and it is enforced. So, for example, authors often have to assign their copyrights to publishers to get published because publishers insist on it.
00:11:44
Companies necessarily need to obtain patents for defense – at least for defensive purposes or to satisfy their investors. We all have to be careful to avoid copyright piracy if it’s conspicuous because you might go to prison. And companies are always hiring patent lawyers like me to advise them and to look at their portfolios and look at competitors and their patents to make sure they’re not infringing patents.
00:12:12
Now, I would say in my opinion, I’m not an ethicist, but I believe – personally believe it’s immoral. It’s immoral to use IP offensively as a person. I don’t do it. I refuse to participate in offensive patent lawsuits for example. I think it’s wrong to be a copyright troll. I think it’s wrong to sue someone for copyright infringement. People are going to do it, but I don’t think we should even given that the system exists. However, I think there’s nothing wrong with using IP defensively. If one of my clients were sued for patent infringement, I would have no qualms about using one of our patents or one of my clients’ patents to counter-sue the person attacking them. To me this is a defensive use of force, and it’s permissible.
00:13:01
Another thing people do now in the face of IP is a lot of firms in certain industries collaborate, and they pool their patents together to have a defensive patent pool. One company might have 10 patents. Another might have 15. A bunch of them get together; they have a larger pool of patents to draw on to defend themselves if one of the members of this pool is sued by a patent troll of an outside – another competitor for example, someone outside the pool. And people in the pool agree not to sue each other, so you have all this money being wasted acquiring patents and techniques, things being done just to be able to operate freely in the market because of the patent system. It’s a horrible waste of funds, but these are things some people do.
00:13:46
I actually have a booklet some of you might want to look up. It’s on – a liberty.me booklet. I wrote it about two years ago. It’s called Do Business Without Intellectual Property, and it summarizes a lot of what I’m talking about today. And it discusses things companies can do other than this in today’s society if they want to try to lower their cost and not be liable for copyright or patent infringement and not use the patent system. So, for example, some companies can and maybe should in some cases use trade secrets instead of patents, keep the information secret. It doesn’t work in every case, but in some cases that’s a good strategy. Some companies are even pledging not to use patents offensively, like Twitter has done that and actually signed an agreement with all their employees so that the employee can block the company from using their patents offensively. They can still be used defensively but not offensively.
00:14:38
Tesla, the electric car company, has actually opened up all of its patent technology to its own competitors to build the market up so that they can compete in a real developing electric car market. A lot of authors and independent songwriters and musicians and authors use creative commons to release their work for free into the commons to liberate it from the shackles of the copyright system. A lot of the software industry uses open-source software, which is similar to the creative commons, that – like they’ll use the GNU—G-N-U—general public license to liberate software from their shackles of copyright. So people are actually trying to get out of the system that is in place.
00:15:21
I would also say that in today’s world, authors should be careful not to assign the works to their books to publishers if they can avoid it. Self-publish in some cases because otherwise when you die your work might become an orphan work and disappear from the face of the Earth, or in your will, make sure that in your will you grant your – you open up your copyrighted works to the world so that it doesn’t disappear so that family members or descendents down the line don’t keep it from being published by refusing to grant permission.
00:15:58
So these – this is consequences of living in a world with IP. Now, let’s talk about life without patent and copyright. So let’s say we somehow achieved a miracle, and we were able to abolish patent and copyright despite the lobbying efforts of the pharmaceutical industry and Hollywood and the music industry in the United States, which is largely responsible for this morass that we have in the entire world. So the question really is what would the world look like, what are the likely effects of abolishing patent and copyright? So the first thing we can do is we can look at cases in today’s world where there is no copyright – where there’s nothing like copyright and patent or cases where it’s being widely evaded.
00:16:40
So, for example, the fashion industry exists now, and it’s extremely profitable and extremely creative and lucrative, and there’s many successful companies even though their dress designs and things like this can be knocked off right away. Okay, so they manage to make a profit because they just keep coming up with new designs every fall, and then the old designs get made at lower prices by knockoffs and by cheaper boutiques. This actually happens. The fashion industry actually works without IP except because of the – there’s lobbying by the fashion industry, by the way, to add a type of IP or to extend copyright to fashion designs.
00:17:17
Let’s hope that doesn’t happen But sometimes fashion designers, desperate to have some kind of protection over their designs, they will use trademark law, which is another type of IP. And they’ll take their logo, which is protected by trademark, and they’ll put their little logo all over their purses. You guys ever seen – you know Chanel and Louis Vuitton. This is the reason why their logos are slapped all over their apparel so that they have some trademark protection so they can use some type of IP to stop people from knocking those things off. It would be like buying a Mercedes and seeing the little symbol all over the car as part of the design. It’s odd. So this is a way that IP has distorted culture.
00:17:57
Culinary recipes—chefs are extremely creative. Restaurants are coming up with great recipes all the time, and there’s nothing stopping one restaurant from copying another and they do this sometimes. But quite often they come up with their own recipes because they want to distinguish themselves. So lacking IP in the restaurant industry doesn’t prevent great restaurants from existing, so same thing with jokes in the comic industry. Comics can knock each other off, and they have their own policing system for this. When someone is caught using a joke someone else wrote, the other comedians shun them. There’s no IP law in that, but there’s a private sort of shunning mechanism, okay.
00:18:33
Same thing with perfume, by the way. Perfume is not protected by IP, and quite often there’s a knockoff of Chanel No. 5 in the drugstore for one-tenth the price or even less, and sometimes some people buy that. Some people buy the real thing. If you want to give your girlfriend a present for Valentine’s Day you’re probably going to buy the real thing.
00:18:51
The software industry operates, as I said, largely without copyright because of the use of open-source licensing, and it’s very innovative and creative even without that. And books and music and movies are protected by copyright, but because of the ability of people to torrent and copy, engage in piracy, they are still profitable even though the copyright system is effectively breaking down for those types of works. And yet, authors and musicians and the movie studios are still making money selling books, selling movies, etc.
00:19:35
So second, we can say this, the likely effects of abolishing patent and copyright. Well, we can say this. The bad effects that we know happen now would disappear. The censorship that copyright imposes would be gone. There would be no jail threatened for people engaged in piracy. Kim Dotcom, his house would not have been raided by 59 federal agents and SWAT teams from four different countries with helicopters in his home in New Zealand.
00:20:05
Aaron Swartz, the brilliant young man who helped invent RSS, which is the technology behind podcasting, one of the most important developments of our time and creative commons, another important development and who helped stop SOPA, the Stop Online Piracy Act, which is one of the greatest threats to freedom in recent decades in America – he wouldn’t have committed suicide as he did two years ago because he was facing a long time in prison for copyright piracy.
00:20:31
So that wouldn’t have happened. That’s one effect of the copyright. You wouldn’t have Aaron Swartzs committing suicide. You wouldn’t have people facing prison terms for jailbreaking their own iPhones, which is the law in the United States. You wouldn’t have patent lawsuits from patent trolls or your competitors. You wouldn’t have monopolies on pharmaceuticals. Drugs wouldn’t – AIDS drugs wouldn’t cost $1000 a month in Africa. You wouldn’t have as many cartels and oligopolies, which are caused by the patent system such as in the smartphone industry.
00:21:05
Prices for consumer goods would fall a lot. We’re paying the price for the patent system right now because producers have to pay licensing fees to patent trolls, and they have to pay fees to attorneys like me to obtain patents and to engage in litigation defensively. Billions and billions and billions of dollars every year are spent by these companies because of the patent system. That would be gone, so the cost to producers would be much lower so prices for goods would fall a lot, so all consumers would be better off.
00:21:37
Maybe we wouldn’t have had to wait 50 years for a movie version of Atlas Shrugged. Maybe a good one would have been made. And if a bad one would have been made, someone would just remake it. Maybe we would have had a sequel to Atlas Shrugged by now, which no one would write because they’d get their pants sued off by the greedy and copyright Nazi objectivist state of Ayn Rand. By the way, Catcher in the Rye, the famous novel – a sequel to that was written years ago. And his estate sued the publisher and the author, and the judge banned the book from being published because it was a derivative work under copyright law, so copyright law actually literally results in book banning and censorship and has – and does prevent sequels from being written.
00:22:37
Netflix would have a much larger catalog of movies. There wouldn’t be a million YouTube takedowns a day as is happening now because of the copyright systems Digital Millennium Copyright Act takedown provisions. Literally a million videos are taken down in a day automatically by YouTube because of fear of copyright liability. There wouldn’t be judges ordering the destruction of movies such as happened with the Nosferatu movie because it was a – held to be too close to Dracula. Movies were ordered – the negatives were ordered destroyed by the judge.
00:23:17
There wouldn’t be judges ordering people not to read books that they purchased as happened in Canada. A few years ago, one of the Harry Potter sequels was in the bookstore, and the bookstore accidentally sold it a few days before its release date to some people. And so the publisher freaked out and ran to a judge and got an emergency order, ordering these customers not to read the books until two weeks from now or something, and don’t – if you have read it, don’t discuss it with anyone. That’s what the judge said.
00:23:53
And you wouldn’t have judges banning the publication of sequels like Catcher in the Rye or Atlas Shrugged 2. Now, how would people adapt in such a world? It might be harder to make money selling information. That’s possibly true. But then, on the other hand, it would be easier to use information.
00:24:19
Documentaries right now are often blocked because they have a scene of a sculpture in the background or those – a movie poster on a building that’s in there, or there’s a song playing in the background on someone’s radio, and they can’t publish their documentary. Documentarians would be able to have more freedom to do things like that, and it would be better for the consumer. Prices would fall. There would be no – DRM models just wouldn’t work anymore because people would just go to alternative methods. If you buy a Kindle book, there’s no way you would use Kindle if they have DRM. You would just go to – you’d go to piracy. So for – publishers would have an incentive to open things up and have unrestricted digital information in terms of music, software, things like that.
00:25:03
Now, let’s take some concrete examples. The – and again this is the problem with this question. People pepper you. They demand. They want to know what’s the world going to look like without IP because I’m afraid. I’m afraid of getting rid of government censorship and restriction of competition and the grant of monopolies that protect you from competition. I’m afraid of a world like that. Even though I’m supposed to be a libertarian I’m afraid. So you need to tell me. You need to tell me. They’ll say what about music? What about novels? And so I say, well, I can think of a few models based on what some people have done and based upon just being a creative lawyer or whatever. But then they’re never satisfied. The list of questions is infinite. They’ll say, well, what about poetry? It’s like whatever answer you give them they’re going to go on to the next one.
00:25:51
It’s very similar to talking to your standard American leftist liberal who has a – is in favor of the welfare state to take care of the poor, and libertarians often fall back on this sort of soothing don’t worry; it’s going to be fine in a free society. We’re going to have charity, and there will be – there will be plenty of charity. Don’t worry. And then the liberal says could you guarantee that? Because if you can’t, we need to have a welfare system. So – and of course you can’t guarantee it. Are you telling me there will never be one single person who can’t get charity? No, I can’t guarantee that. All right, we’re keeping the welfare system.
00:26:29
We need – we have to provide healthcare for people too because you can’t guarantee that there would be charity hospitals out there. We need to have public schooling because I can’t guarantee that everyone is going to be able to find a nice charitable, free high school for poor people or something like that. So it’s the same thing here. They want to demand there is never going to be a case where the way someone is doing something right now won’t be able to continue. They want a guarantee that J.K. Rowling, the Harry Potter author, the richest woman in England I believe because of the success of the movies and her books, they want to guarantee that it would be exactly the same. I don’t know if it’s going to be exactly the same.
00:27:12
Musicians will still make money. Music will still be produced. We know that. Maybe they would make less money off of their albums, and that would be what they use to advertise them to advertise their music to get popular so that they can sell tickets when they go on tour, which is what’s happening right now actually. They’re not making as much money on MP3 sales because people are using Spotify, and they’re pirating it, so bands become popular. And they can sell out large stadiums and make hundreds of millions of dollars a year touring or a lot of money touring.
00:27:46
You know, movies used to be made before the modern era, and they were financed by the prospect of selling tickets to show movies in theaters. Now, there is piracy right now. There’s – a lot of the young kids, they want movies on their computers, and they don’t pay for them. Yet still moves are making billions of dollars by – just from box office sales alone. Nowadays, they have secondary and tertiary streams of income. They started showing moves on television. They would charge the rights for that after a couple of years.
00:28:20
And then – so on airplanes and then in hotel rooms and then putting them on cable. These things didn’t exist in the 1950s, and yet there were still blockbuster movies. So even if those secondary and tertiary streams of income disappear altogether, which they wouldn’t, there’s no reason to believe that movies couldn’t be made still just by selling tickets to show them in the theaters. And then piracy is going to happen soon after, and the money is already made, so there’s no reason to believe that movies couldn’t be made.
00:28:47
Crowd-sourcing is being resorted to a lot now: Go Fund Me, Indiegogo, etc. These types of things could be used. I mean throwing some examples out there. I want to write a novel. I’m a popular author, novelist. I want to write another novel, but I’m not going to invest the time to do it unless there’s an audience out there. If my fans will each pledge to pay me $10 and 100,000 fans sign up, I’ve got a lot of money right there in the bank. You could do it that way even if piracy would happen soon after.
00:29:18
Let’s take the case of J.K. Rowling again. J.K. Rowling didn’t write Harry Potter expecting to be a billionaire. She wrote it because she wanted to write. She might have hoped to make some money, but she didn’t know how popular it would become. So let’s suppose she had written the first Harry Potter book, but let’s suppose she sold it on Amazon on the Kindle, so for $0.99. Well, a million copies might have been sold, so suddenly she is a millionaire literally even though there’s piracy going on.
00:29:48
And then piracy starts, and her sales fall away let’s say. Let’s take the worst fears of the copyright advocates. So J.K. Rowling says, well, I’ve got millions of fans out there in the world, and she does an Indiegogo campaign. And she says if I get a million dollars or $10 million pledged from 10 million fans around the world, I’ll release a second novel, which I have ready to go. So she gets $10 million, releases the novel. Piracy starts. Well, she’s made $10 million. Now some guy comes up and he says hey, I’m going to make a movie based upon Harry Potter. It’s a popular novel, and I’m not going to pay her a cent because I don’t need to because there’s no copyright. And another company says, well, I’m going to make a better one, and so he approaches J.K. Rowling and says, look, there’s three companies out there that are producing versions of the first Harry Potter novel right now as a movie.
00:30:38
And they’re not paying you anything. If you will consult with us and you’ll give it your blessing, I bet it will be a better movie, and a lot more of your fans will see the authorized version than the other, and we’ll pay you 10% of the box office sales. Okay, so now she’s got another $50 million. It’s easy to see how, in different areas, you can make money even though there’s no IP. The bottom line really is that the legal issue, the libertarian issue about whether there should be IP law is distinct from the entrepreneurial question about how do I make money in a free world.
00:31:10
It’s really the entrepreneur’s job. I’ve heard the expression and I’ve used it before. Your failed business model is not my problem. Ultimately, it’s up to the entrepreneur in a world of freedom to figure out how to make money, and as Benjamin Tucker, one of the famous anarchist libertarian from over a century ago who was a famous opponent of IP, he said one time if you want your ideas to yourself, keep them to yourself.
00:31:47
If you publish information to the world, if you make knowledge public in some way, you cannot expect other people not to use that information. You have no right for them not to use that information. If you sell a product and the product’s design is apparent, then you are taking the risk that you’re going to have competition, and the reason you do that is to make a profit.
00:32:09
So you have to make a choice: Do I want to sell this product or not? The cost of doing that is I’m telling something to the world. If you want to keep it to yourself, you’re free to do that. But if you sell a product, if it’s successful, it’s going to send a signal. People are going to start copying you, and then you might have to innovate yet again, which is another reason we can expect there to be more innovation. People can’t rest on their laurels as much as they can now. You have a patent that lasts 17 years, so you don’t need to innovate as much. You have a monopoly protecting you from competition. Without the patent system, people would have to keep innovating.
00:32:44
Okay, in the US, maps used to be covered by copyright, but in the Feist decision it was held that maps are just pure data, pure information. And therefore, they’re not subject to copyright protection, and yet we still have maps, don’t we? Although sometimes mapmakers play these little tricks. They’ll put a fake cul-de-sac somewhere that doesn’t exist on the map so that if someone copies it now they’ve committed copyright infringement because there’s something original in the map. In other words, it’s a lie. The map is actually false. It’s a lie, so copyright actually encourages mapmakers to distort the maps and to lie to the world so they can sue people. So maybe we wouldn’t have bad maps without copyright. Sometimes every now and then there’s someone driving down a country road, and they’re like, I want to find that cul-de-sac. It’s like, it doesn’t exist.
00:33:43
Academic and scholarly papers are written now for no money. There’s no reason to think they wouldn’t be produced. They’re written for other reasons, for reputation or to get the word out. Look at Walter Block. He doesn’t get paid for all those journal articles he writes.
00:34:00
So in conclusion, I will say that a life without patent and copyright – it’s unpredictable exactly what it would look like, but we can predict that it would be better. So thank you very much.
00:34:14
Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 35:06 — 48.2MB)
Kinsella on Liberty Podcast, Episode 189.
This is an interview I did a few weeks ago with English libertarian Richard Storey. We discuss the nature of libertarianism, its roots in Western Rationalism and how to defend and promote it, property rights and scarcity, the significance of Hoppe’s argumentation ethics, praxeology, Misesian dualism, logical positivism, legal positivism, and related matters.
Related material:
Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 1:06:28 — 97.9MB)
I am slated to deliver a keynote speech on “Legislation and the State’s Corruption of Private Law—Louisiana’s Special Connection,” for the Louisiana Libertarian Party Annual Convention (tentative topic), to be held at the Belle of Baton Rouge Casino and Hotel (April 16, 2016). More details presently.
My 2011 Mises Daily article, “Argumentation Ethics and Liberty: A Concise Guide,” 1 has been translated into Spanish by Mariano Bas Uribe and published at Mises Hispano, as “Ética de la argumentación y libertad: una guía breve.”
My work has so far been translated into 14 languages; online here.
Kinsella on Liberty Podcast, Episode 188.
I was a guest last night (Sunday night, Aug. 23, 2015) on the Free Talk Live radio show, with hosts Mark Edge and Ian Freeman, discussing the common law, legislation, restitution, and related issues.
For background/related:
Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 1:59:02 — 54.6MB)
Kinsella on Liberty Podcast, Episode 187.
I appeared on Jeff Berwick’s show in 2012: Kinsella on Anarchast Discussing IP, Anarcho-libertarianism, and Legislation vs. Private Law (Dec. 29, 2012):
I was a guest on Jeff Berwick’s Anarchast (ep. 51, 36 min), released today. We discussed anarchy and how such a society might be reached; the basis and origin of law and property rights and its relationship to libertarian principles, and implications for legislation versus law and the legitimacy of intellectual property; also, utilitarianism, legal positivism, scientism, and logical positivism. Description from the Anarchist site below. For more background on IP, see the C4SIF Resources page; on legislation vs. private law, see The (State’s) Corruption of (Private) Law.
Youtube below as well as the auto-transcript generated by Youtube:
Update: See also Legislation and the Discovery of Law in a Free Society.
Anarchast Ep. 51 with Stephan Kinsella
Jeff Berwick in Acapulco, Mexico, talks with Stephan Kinsella in Houston, TexasTopics include:
– Stephan explains how he became an anarchist and some of the books that pointed him in the right direction including
– The Fountainhead (http://amzn.to/VnZwSL)
– Stephan is a practicing attorney that applies his legal knowledge with his libertarian philosophy
– He believes a free law society will only come about if a majority of people agree in libertarian principles
– Law is defined as a concrete body of rules that permits a group of people that want to be able to cooperate to be able to do so
– Jeff asks if it is necessary for everyone to agree with libertarian philosophy in order to have a free society
– Stephan thinks that a majority of people already have libertarian principles but have not been educated correctly in constancy
– He is more optimistic that most because he sees more people not accepting central planning than in the past
– Jeff thinks that there could be a backlash against free market ideas during a financial collapse where the people believe capitalism is to blame
– Stephan hopes that people will slowly find the state to be irrelevant and this will bring about a free society
– Jeff thinks that there will be a financial collapse that will make this transition unpredictable
– Stephan is an expert in libertarian Intellectual Property theory
– He explains the principles of property law
– What most people think is law today is not what law would be based on in a libertarian society
– Stephan explains the problem with legal and economic positivism
– The proper libertarian view is to be opposed to making law through legislation
– The problem with intellectual property is that you are able to use the force of the government against someone who has not aggressed against you
– Stephan explains the problems with the utilitarian Intellectual property justification
– The intellectual property system forces everyone to participate even if they don’t agree with itStephan is doing astounding work in libertarian legal theory you can find more in formation on his sites
For more information on The Dollar Vigilante, go to http://dollarvigilante.com. For more information on Jeff Berwick’s anarchist enclave, Galt’s Gulch Chile, go to http://galtsgulchchile.com. And, for more on the anarchist enclave in Acapulco go to http://dollarvigilante.com/acacondos. Come on down and be a guest on Anarchast and live relatively free amongst other anarchists.
is in our nest
hi everybody welcome to another edition of Anna Castro for anarchy on the Internet I’m sitting in my living room
of a house that I live in in Acapulco Mexico right now and we’re really excited excited to finally have on
stephan kinsella who’s in houston at the moment and and took the time out today to speak with us and that’s a real
pleasure to talk to these two fine thanks Jeff glad to be here and the first question I always ask everybody is
how did you become an anarchist you know I don’t remember I remember the time and
roughly but you kind of forget you’re your influences right I’d say in like
11th grade of high school I was kind of a political and a librarian recommended The Fountainhead to me and that list
shrugged and so I became quickly a Randian type of libertarian but hostile
to libertarianism and anarchism for a couple years until I realized that she was wrong that I shouldn’t read people
like Rothbard etc so I read you know the law and then I started reading Rothbard and the Tana Hills and Nozick
and something between David Friedman and Robert Nozick and the Tana hills and
rothbard probably rothbard made me finally give up the ghost around let’s say 88 or so and just realized I was an
anarchist which was a liberating moment so to my mind it’s just the end result
of a consistent principled libertarianism yeah I agree with that
and so yeah you’ve been on the bandwagon for a while no that’s great and I know you spend a lot of time on areas of
contract law and intellectual property stuff and I believe you’re a lawyer is
that correct yeah I’m a practicing attorney intellectual property patent attorney but corporate law and contract
law oil and gas law that kind of law for around 20 years now so I have a deep
interest in you know legal theory and in mixing it with Austrian theory and with
libertarian theory as well that’s great and one of the questions that a lot of
people always ask when they when you get into the topic of Anarchy is how would law work I wonder if you could give them
sort a few minutes on generally how it would work in a free market yeah that’s a
that’s a long topic I actually give a speech on that in Turkey at haunt our monopolist property in freedom society a
few months ago which will be online shortly at my website and I’ve written
about legislation and law and things like this so it’s a long topic but kind
of the long and short of it is I believe that in any free society you’re going to get there only by some kind of natural
process by which most people have some sort of libertarian ethos or ethics I
mean you’re not going to have a libertarian Society unless most people become libertarian how that happens is a different question whether it’s
educational or just experiencial or evolutionary or AG rest’ is a different
question but if we assume that we’ve somehow reached some roughly libertarian society it’s only because most people
have become or have moved to a more libertarian point of view and these people are all going to prefer a
peaceful society to one that’s full of violence and strife and fighting they’re
going to be the type of people who will prefer to have rules about who can use
what among scarce resources that people otherwise would have to fight over this is why property rules arise in society
that we have now and in a libertarian society they would arise the same way except I believe that the people that
focused on what the rule should be would be more consistent about what they are and they would be more sincere about
looking at you know what’s really the just solution here so basically law I view law as a body of
rules that are a practical body of rules designed to allocate the right the legal
right to use or the ownership of contestable or rivalry scarce resources
that otherwise people would have to fight over so law is just a concrete
body of rules that permits human beings that want to cooperate to be able to
cooperate to get along in society to produce peacefully and you know productively in society so I guess what
your one question I’d like to pose based on what you just said is that so
in order to have a free society people really need to understand these concepts of of libertarianism is that correct and
if so so it really won’t be able to happen unless you have the majority of people in that society really understand
these concepts is that is that correct I don’t know if it has to be explicitly understood it has to be you know
ingrained in some kind of way I think it already is to be honest I think the vast bulk of humans are already kind of quasi
libertarian because most people if you ask them if they believe in if they
value human prosperity if they valued cooperation and productivity and peace
that’s just as a general matter they would agree with that the problem is they’re economically illiterate and they
don’t understand that if you have these basic values the only way to achieve them is to have basically a free-market
order of peaceful reasonable rational property rules allocated and applied
consistently so the main problem people have is they’re not consistent and that’s primarily because they have jobs
and they’re they’re farmers or they’re that educated or they’re just not scholars or they’re not spending their
entire lives thinking about consistency but one thing that gives me a little bit of hope although I’m kind of a pessimist
like you perhaps are to some degree is when I think about the attitude today
compared to the attitude of 30 or 40 years ago towards central planning and
communism and although we are creeping towards it right we if you ask your
average even Obama supporter or you a favor of free enterprise they would maybe reluctantly they would admit yes
basically people understand on a widespread basis that command economies cannot work that central planning and
communism don’t work and that we need some free enterprise they might they may want to limit it etc but so the question
is and and if you contrast that to someone forty years ago you’d find a lot more utopians and idealist in the West
who would be for outright socialism and communism now what changed I think what change was
the fall of Russia in 1991 or 91 ever it was basically it was a teaching moment
now it didn’t make people more economically aware or or illiterate in a
theoretical sense but it they sort of you know adopted or adapted they
incorporated the idea they kind of know now that central planning won’t work and so my hope is that something similar
will happen over time as the free market continues to grow despite the state’s
attempts to suppress it I mean that’s my hope as the internet grows decentralization grows as you know
quicksilver capital that phenomenon continues maybe you know extra planetary
human societies develop as something keeps happening over time I just hope
that the state recedes over and over and people gradually regard it as ridiculous as may happen for example with religion
over time I don’t know I mean maybe people someday will regard maybe only nine only one percent of people will be
religious and they’ll regard the old times as the superstitious times maybe something similar will happen with with
the state so that’s the only kind of long term we have hope I have is that economic literacy will happen
empirically because of just seeing how the market works yeah yeah I think that
we actually have a a bit of luck coming towards us because I think most of the Western nation-states are in a state of
collapse and are serious state of collapse and the the financial monetary system is it’s basically already almost
dead and that collapse could come as quickly as in just the next few years so that’s one of the things that I’ve been
trying to do is try to spread this message as much as possible because the more people who understand what we’re talking about here after that system
collapses the better chance we have that we can move towards a more free society where as it as it is today for the most
part if they all the systems collapse the u.s. teller collapses people are out in the streets they’re rioting most
people will blame it on capitalism because that’s what they’ve been kind of been told by that they lived in a in a
capitalist environment when it actually really isn’t it’s more fascist and communist and then capitalist at this
point in the US the US government taxes and regulations and everything there’s over 500 federal
agencies and you know you obviously in capitalism you don’t even have a central
bank that’s not a part of capitalism that’s actually more something that communism does yeah absolutely I’m I’m
I’m not that sanguine about the prospects of the rebirth of some kind of society if there is a collapse like that
because I don’t think the economic literacy is there yet so I think it could be even worse
although there’ll be opportunities and pockets for some may be successful areas
to emerge I don’t know so I would I would prefer it to happen gradually and
evolutionarily over time so that there’s time for people to I mean you can’t have
this Marxian utopianism hoping for new Marxist man or a new communist man new
libertarian man you can’t expect human nature to change and I don’t think it will change until we reach some kind of
weird AI or singularity stage which I’m also skeptical of but but I do believe
that people can learn over time and you know I think it’s you know if you think about Europe all the students that have
been your railing or interrailing with each other for 20 30 years now 40 years now it’s probably more unthinkable to
them to you know for Germans to bomb for the French and the English because they have friends they’ve been going to
colleges each other you know they’re there and I think the Internet’s providing a similar phenomenon and so
does the sort of internationalization of commerce and trade and students traveling around and people commuting
all over the world and traveling hopefully over time the idea of war the
idea of nationalities and nationalism would just become more and more you know
ridiculous to people and receding to the background is sort of a minor thing so that’s my only hope
I don’t know I don’t know what’s going to happen if we have the kind of collapse that some people are predicting
yeah yeah no one knows and they better that’s why it’s going to be so interesting and possibly quite dangerous
and then for people who are preparing for a lot of these things i really suggest
you you start looking into some of these things i get some of your assets into precious metals if you’re gonna live in
the US store some food in your house get a gun if you can get out of the out of
the West completely because that’s gonna be the real epicenter of the collapse in my opinion I think it’ll come in the next five to ten years so and it could
come as quickly as a couple of years so you really got to start getting your ducks in order but this would be totally
remiss if I have stephan kinsella and our cast and we don’t talk about intellectual property you’re one of the
top mind set people of the intellectual
property you’re you’ve written a lot about it you talk a lot about it why don’t you for for someone who’s sort
of new to intellectual property and and or even anarchism why don’t you sort of
lay out a general view of your thoughts on intellectual intellectual property okay that’s that’s a good question and
I’ll kind of go back to your previous question about law to you because it ties into that there’s a couple of things here it’s the question of what
law is and how loss should be made and I mentioned earlier that law is a set of rules that are designed to allocate
control of scarce resources to certain designated owners so as to avoid conflict and to permit the productive
use of those resources in society now in a sense all legal systems believe in
property rights in this sense because in every legal system whether it’s communist or fascist or welfare state or
or what-have-you communitarian kibbutz mixed economy let’s say fair capitalism
whatever they’re in in any given system there’s always an answer to the question
of who has the legal right to control this resource whether the answer is this
federal agency or whether it’s this tribe or whether it’s this recipient of
welfare gets to control the money that’s given to them or whether it’s whoever the libertarian answer which is
different from all others is that the answer to that question is basically the Lockean question is the
owner of a given resource is whoever was the first one to use it or someone he’s transferred it to contractually that’s
basically libertarianism it’s locking in homesteading of unknown resources plus
contract okay and plus a few other subsidiary rules like if you commit a
tort or a crime then you could lose property rights and that way too because in favor of the victim so but you
perform some action as an owner to acquire ownership or to transfer ownership to someone whether that’s
contract or a tort or a crime so law is just the concrete body of rules that
kind of systematizes this body of rules that people have developed in society
now the question is how to where does law come from and it comes from this desire of humans to get along
cooperatively peacefully and there’s no reason that these body rules can’t emerge in a way organically you could
say spontaneously although I’m not a fan of that Hayekian term but without central control and crucially without
legislation nowadays everyone thinks of law as being whatever the government
says it is so it’s sort of a statist or pro state view combined with what’s
called legal positivism so in other words the idea that everyone is used to now is that the law is what’s written
down in a book and that was decreed or passed or enacted by a quote you know
legitimate legislature of a government so that is what everyone is used to now
even a lot of libertarians so for example the income tax protesters that they’ll say that in the US the income
tax is not really mandatory because it’s not quote a law and when they say it’s
not a law they’re talking about what the positive law is what legal rules the government is enforcing by force and if
you say well it is a law because if you don’t pay your income tax you will go to jail like urban ship is in jail now and
that’s what law means law is the the rules that are enforced with the force
of law and they’ll say well show me the law and they want you to point to a statute that shows in clear black and
white English that it says if you don’t pay income tax you’re gonna go to jail now if you’re a sophisticated attorney you
can actually do this because there are income tax codes and laws that end up
showing that you will go to jail but the point is even if you couldn’t do that it’s still that’s the way the courts
interpret it and the courts are going to put you in jail if you don’t do it and the insistence on show me the law in a
written the law books they call it like like Hicks really or like you know like
rubes is a legal positivist mentality of thinking of law is what the legislature
decrees instead we need as libertarians and it’s free men to think of law as
being this body of the body of rules that are the just way to allocate
property rights and then we can contrast that with the the body of legal rules
that the government in a given area actually enforces and we can say here’s
an ideal system of law and here’s what the real system of law is and to the extent the real system of law deviates
that’s why it’s unjust so unlike say liberals modern American
liberals who are basically a legal positivist and they have no standard of rights outside of themselves which is
why they retreat to what the courts say in a way they actually are almost self contradictory when they criticize let’s
say that the Roe vs. Wade decision why so that they uphold that one but they if they criticize a Supreme Court decision
what on what basis are they criticizing it or let’s say they disagree the Second Amendment of the Constitution how could
they disagree with it because there’s no higher standard of law in their minds to compare it to they don’t really believe
in natural law they are basically legal positivist but the conservative types the libertarian types even to some
degree in my view are also legal positivist in in in a further level removed because they do say they believe
in some kind of natural law that is a higher law than even the Constitution so
for example if the Constitution permits taxation or conscription then they would
say to hell with the Constitution it is immoral and wrong because it violates what we would call libertarian law well
where does that come from well a pen differ on this but most would say well there’s a higher law source but when you
just push the level back and you look for another source so you know your modern liberal would say the source of
laws of legislature well the religious conservatives say no the source of law is God or the or the structure of nature
well they’re both looking for a source of law and when they do that in my opinion they’re confusing the nature of
law and the nature of norms and moral reasoning with the physical world and
this is a mistake that’s been going on for a century or two now and it’s what Hayek and Mises call scientism okay so
scientist em is the mistake of trying to treat every phenomena that we study
under the rubric of the Natural Sciences which is you have to formulate some kind
of causal law that’s testable or at least falsifiable then go do repeatable experiments and see if you falsify it so
then all your knowledge is continually evolving but it’s always evolutionary
this is what hiya what Milton Friedman did with his positivist positivist view
of economics where he would view they’ll say the law of supply and demand or the minimum wage you know the idea that
minimum wage causes unemployment or the idea that inflating the money supply causes prices to go up he would call
those contingent laws that we have to test by experiment this is what this is
what has led to the modern day empiricism and econometrics and the morass the economics has gone into
whereas the Mazie’s ian’s would say that no we can know for sure that if you
increase the money supply everything else being equal it will tend to cause prices to go up you can know this a
priori without having to study it so going to onto a little tangent here but
my point is if you want to understand what law is you need a clear separation in your mind between laws that are
designed to govern human behavior which is called teleology right or norms rules
and laws of physics so for example if you and I in a community agrees that it
is impermissible or wrong for someone to commit an a certain act
of theft or a certain act of murder or rape now we’re not saying that’s a physical causal law we don’t need to do
a test to see if we’re right about that in fact we can’t do a test about it I mean what are you gonna do let a bunch
of guys loose and rape some rape some women and see see what see if God
strikes you dead I mean it’s just not an experiment it’s a moral view that is based upon your fundamental moral
feelings so that is what law is now on to anarchy so in my opinion the proper
libertarian view on law whether you’re a man or kissed or an anarchist is to be opposed to legislation as a means of
making law law comes from a decentralized like a bunch of judges or
private arbitrators or whatever overtime trying to apply these basic precepts of
justice to concrete disputes among people and over time a body of rules develops so the libertarian even if
you’re not an anarchist ought to oppose at least in most cases the use of a legislation as but as what causes law to
emerge so that’s why we need to stop equating law with what the current
legislature has decreed number two so it on that ground alone if you’re opposed
to legislation you would be opposed to patent and copyright because both are purely artificial legislated schemes no
different really than you know the Social Security Act or Obamacare or the
Americans with Disabilities Act or whatever arbitrary artificial legislated
scheme you want to think of that is clearly under Batarian now if you’re an anarchist that’s another reason to
oppose an electric property because you would never support a legislature because that’s an arm of the government
or the state and legend and copyright can only come about through legislation
which is an arm of the state so if you’re against legislation or if you’re against the state you have to be against
patent and copyright right off the bat but the case against patent and copyright which are the primary two most
evil and destructive forms of pet intellectual property doesn’t rest upon
being opposed to legislation or against the state although those are really strong supporting arguments even if you
think legislation is one way to help make law even if you’re not an anarchist you’re just a min are kissed or a
limited government type the case against IP is primarily that IP represents a
rule by the government that gives the holder of this so-called property right
the patent or the copyright gives them the right to go to a government court
and use physical force of the state goons against someone else who has not
committed an act of trespassed against view that’s the fundamental problem with it so for example if I have a patent on
a new mousetrap design I can get the government to use force against someone
else selling a mousetrap that I think is too similar to mine and make them stop
making that so I’m using force to tell them you can’t use your body in this way you can’t use your own property in this
way it’s the same thing with copyright with copying a song or a movie or a design or whatever in all these cases
the government has given to the IP holder what I call a negative servitude
and legal terminology it’s it’s a legal right to to veto someone else’s use of their own property so I can go and tell
you Jeff you are not permitted to use your mouth or your hands or your
printing press or your factory in the following way and if you do it I’m gonna
put you in jail or take millions of dollars from your bank account with under the threat of force from these
state goons that are in my pocket that’s the fundamental problem and the fund and the typical response of the IP proponent
is that is what it’s well property rights are not absolute and I’m like
really seriously is this your argument that you were willing to invade my property rights because property rights
aren’t absolute I mean by that argument you could you could condone anything I mean you could have some guy raping a
girl and say quit complaining after all proper right or an absolute I mean just because
property rights are an absolute which I don’t even think has a meaning to be Miya be honest this is just the the
claim of a looter anyone who says property runs at property or rights or an absolute hold on to your wallet
because they’re coming after it right so the fundamental problem IP so let me let
me go into one other thing most advocates of IP say that we there’s a
utilitarian basis for it that is the government should come in tweak the rules of property so that innovation or
creation is incentivized by the lure of monopoly profits profits that you can
charge with this monopoly that the government gives you so that we get more
creation out of it so the government’s going to come in and grant these rights which amount to taking property rights
of other people and the theory is that it’s going to incentivize a lot more artistic and inventive creation than
otherwise but the fundamental problem with well there’s so many problems with
that line of reasoning number one that’s not how we make decisions about what’s just and right and wrong and unjust we
don’t sit there and say let’s have a government that’s going to twiddle property rules from day to day to try to
maximize some arbitrary goal that they just came up with but even if you go along with that and even if you omit the
Austrian problem that you cannot add and subtract values in other words you can’t
sum up these values in society so if a patent law hurts me but hurts him well
how do we know if there’s a net value to society and even if there is a net diet to society why did you justify the harm
to me how am i ever made whole so there’s these problems but the fundamental problem is they claim that
they believe in this utilitarian logic they claim to know that the patent and
the copyright system create this net wealth but they have no evidence for it none I mean none and when you ask them
they just say well it’s obvious or something like that and all the studies that come out keep concluding that we
can’t figure this out or we can’t prove it or it seems like from all the data we have that the patent in
the copyright system actually impose huge distortive and net economic loss on
society this in addition to the loss of freedom people going to jail
the government using copyright to impose censorship and controls on the Internet imposing internet controls and lots of
freedom through SOPA and PIPA controls and upcoming treaties and things like this so these are basically completely
terrible tyrannical laws rooted in protectionism mercantilism and
censorship that the government uses to ratchet up controls of the internet
taking away civil liberties and reducing economic gains for everyone and
entrenching monopolies oligopolies reducing competition it’s just one of
the worst institutions in society i’ve ranked these things i think it’s about number 6 it’s under the Fed war taxation
government schooling a couple things like that in the drug war but other than those it’s about the worst thing in
society and unlike those top 5 things which libertarians all see is evil libertarians have been deluded into
believing that this number six top bad thing that we have in society is one of
the best is actually a legitimate type of capitalism or free markets just because the government has used
propaganda and called it intellectual property when it didn’t used to be
called that in fact you know these things originated in laws called the statute of monopolies the government
used to be honest in describing these these things but now they’ve they’ve
resorted to propaganda to sell them and libertarians have bought into it and it’s got to end we’ve got to reject
Pratt and copyright root and branch completely immoral completely unlimber terian completely unnecessary they
should not be reformed they should not be phased out they should be abolished tomorrow so end of diatribe yeah I agree
I agree completely and if only we could somehow do that I don’t know how we’re going to get to to that stage especially with so many
people have so much interest in that system obviously a lot of companies own patents and they have all kinds of
advantages over other companies it actually keeps out competition and in most things which is a really bad thing
for society as a whole and it’s really is too bad that’s you know that’s that
we have this system and one of the six things about the system I always found as a businessman is I never wanted to
patent anything I never wanted trademark or copyright anything I don’t have any copyright on anything I write or on this
video or anything but if I didn’t do some of those things like trademark of a
family right you would actually cause me problems because then someone else could go in trade markets and then I can’t use
it anymore because they’ll come to my house with guns and throw me in a cage so yeah the system is just a horrible
system and it’s just so amazing to think about the amount of innovation there would probably be in the world today if
we didn’t have that system we violence in flying saucers or he’d Noah you know
just things like I’m sure every car we probably wouldn’t have cars at this point we’d be so advanced but probably
each car would have its own small nuclear reactor in it just like the the giant US Navy ships do and they can run
for 20 years without ever having to fill up and stuff like that but because of all these laws and regulations and and
and what you just brought up about intellectual property and patents and all that sort of thing it really limits
our advance in technology and in everything that we do no I agree
completely and as I was saying you actually do have a copyright in your videos you can’t help it that’s one of the problem with copyright is it’s
automatic I mean you can’t even get you not only is it automatic you can’t even get rid of it you can’t get rid of the
copyright you have in this video right now so you know and I don’t like you
can’t blame businessmen I mean look let’s say you are a very scrupulous Jeff Tucker has opposed to us what he calls
scrupulous ‘ti like attacking companies for working within the existing system like you know bike driving on the roads
or whatever I mean what are you gonna do not use the roads because they’re public and then you’re just gonna die and all
your competitors would what you know and so it I don’t blame companies for having
trade you can’t blame them for having copyrights because it’s not their fault they can’t you can’t help having copyrights I can’t even blame them for
acquiring patents because if you don’t acquire them then you’re vulnerable and naked to a lawsuit by a competitor who
does have patents and if you don’t have something to sue them back with then you’re screwed you know it’s like
refusing to hire lawyers because they’re licensed by the state when you need to hire a lawyer to defend yourself in a
lawsuit so just for pure survival and getting along in the real world you have
I don’t know if it’s compromised I don’t think it’s compromised I think it’s look I actually don’t think companies should
sue each other for patents I think it’s immoral to file a lawsuit for patents
aggressively although I don’t know how you’re going to expect that a large publicly owned company is not going to
do that I mean let’s let’s take Apple for example it’s owned by millions of shareholders the Board of Directors
makes decisions the executive the officers make decisions the you know if
they have a patent and they can sue Samsung for it and it’s worth 10 billion dollars what are they supposed to do say
well I am an executive and Apple and I don’t personally believe in patents because I’m a libertarian so I’m not
going to use this legal asset to make my shareholders 10 billion dollars well I guess you could do that but you’re gonna
get fired or if you don’t do it and you’re on the board of directors you might get sued and during a derivative action for you know lack of fulfilling
your fiduciary responsibilities so the most ethical people if you say that’s an
ethical duty they’re just not gonna run for they’re not going to be in these jobs so they’re gonna be fulfilled by as
Hayek said the worst the worst are gonna get on top so I don’t think you can
expect moral exhortation to keep companies from taking advantage of their legal rights me personally I won’t
defend a company to aggressively use IP but I I’m not the norm but even I would
help companies acquire patents that they could use defensively later on but on
the other hand you could view patents as like a gun right like Smith & Wesson sells guns
now do they know what the buyer is going to use the gun for or the the buyer that buys it from their buyer they don’t know
the gun can be used for good purposes or or evil purposes and just because
something has a potentially evil use as well as a good use doesn’t mean that it’s wrong to manufacture or sell it I
serve you patents like that now but except that patents would be totally
unnecessary in a patent free world they were just the need would go away just like in a crime free world a lot of guns
would be less necessary so in a sense the existence of the patent system makes
it necessary to arm yourself with patents and then that’s going to give rise to the temptation to use them just
like the existence of crime private crime I’m talking about even in a stateless society gives rise to the
incentive to have guns for self-defense right in a totally anonymous a pacifist
but in a world of complete human you know peace and tranquility we wouldn’t
have guns except for hunting maybe we wouldn’t have them for self-defense it would be it would be like in the old
days when people didn’t lock their doors on their houses or their cars because they didn’t think anyone was gonna bother to break in so yeah excuse me
they say power corrupts and power the state is power and and it’s sad how with
all these systems how it truly corrupts all of society and the Anita’s pointed out that even us as businesspeople we
don’t want to use the system at all but we’re forced into it we were corrupted by the system to go into this very
basically evil system that is is holding back humanity but I think we’re getting
a little leave you have to go pretty soon and and I don’t want to keep you
too much longer do you have a website or a blog or anything that we can point people to yeah a lot of my uh my media
my speeches my articles well everything’s pretty much on stephan kinsella calm ste pH AM kinsella calm
and most of my IP related stuff it’s also on my blog for the
Centre for the study of innovative freedom which is c4 the number 4s is org
greats and thank you very much for everything is very enlightening and I for one find it very interesting all
this talk about intellect intellectual property and and so it’s really great to talk to you personally and and I hope we
can do it again sometime I’d love to Jeff thanks a lot all right thank you that’s all for Amma cast your home for Anarchy on the Internet peace
love and energy
Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 36:35 — 67.0MB)
[From my Webnote series]
Related:
I’ve written umpteen times on Hans-Hermann Hoppe’s groundbreaking “argumentation ethics” theory for libertarian rights, since 1994 or so. I still hear the same, tired old arguments and criticisms over and over. It’s amazing to me how cocksure some libertarians are, who have no theory of rights of their own, and many of them have no philosophical or scholarly backgrounds, yet they feel compelled to punkishly criticize Hoppe and his theory of rights, even though it’s clear they have read almost nothing and have no theory of their own for why they are even libertarian. They are unaware of or are intellectually incapable of recognizing Hoppe’s many contributions to economic and political theory. 1
I’ve written in detail about this—see discussion and links in “Argumentation Ethics and Liberty: A Concise Guide.” 2 But the questions keep coming; the same old tired repsonses keep coming. I keep responding, for some reason, like Sisyphus. Anyway, here is a modified version of a recent response I wrote to some email correspondents who kept ignorantly insisting Hoppe’s AE is some bizarre crankish view. [continue reading…]
Stephan Kinsella is a libertarian writer and retired patent attorney in Houston, Texas. He has published widely on various areas of libertarian legal theory and on legal topics such as intellectual property law and international law. His publications include Legal Foundations of a Free Society (Papinian Press, 2023), Against Intellectual Property (Mises Institute, 2008), International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (Oxford, 2020), and The Universal Principles of Liberty (2025).
My Failed Libertarian Speaking Hiatus; Memories of Mises Institute and Other Events, 1988–20192025
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