Kinsella on Liberty Podcast, Episode 134.

[Update: Transcript is here, and appended below.]

This is my appearance as a Guest panelist on This Week in Law, Episode 267 (July 18, 2014).  Brief description: “Are patent trolls losing ground? Dish Anywhere in the Aereo aftermath, FCC gets 1 million comments on U.S. net neutrality debate and more!”

Once again, the hosts and the other guest were congenial to my radical anti-IP views, and the other guest, law professor Harry Surden, basically acknowledged that there is no clear empirical evidence in favor of the patent system. (BTW the title of the show stemmed from my use of the fancy SAT word eleemosynary—it’s used in Louisiana law on occasion, which is how I know, but it is obscure, but a fun word, so I had to drop it in the conversation…

Some of my previous posts related to some of the topics discussed:

• Net Neutrality Developments
• Against Net Neutrality
• A Libertarian Take on Net Neutrality
• Costs of the Patent System Revisited
• Yet Another Study Finds Patents Do Not Encourage Innovation
• Patent trolls as mafioso (and that’s a compliment)

My previous two appearances on TWiL were: KOL104 | This Week in Law 97: God Creates. We Patent. IP, Net Neutrality, etc (2011) and KOL103 | This Week in Law 133: Beyonce, Bad Laws, and Breastaurants (2011).

Transcript

THIS WEEK IN LAW 267 (TRANSCRIPT)

Aug 11th 2014

This Week in Law
Episode 267 – Jul 18 2014
Google, Dropbox, Canon and other c…

Denise Howell: Next up on This Week in Law, Stefan Kinsella and Harry Surden join Evan Brown and me. We’ll talk about the FCC getting the soppa treatment, piloting a Nautilus through SCOTUS’ patent wonderland. We’re going to have some other strange boats, too. And talk about the law’s role regarding kids’ cruelty on social media. Much more too on This Week in Law.

Netcasts You Love, From People You Trust. This is TWiT! (TWiT logo) Bandwidth for This Week in Law is provided by CacheFly at CacheFly.com (CacheFly logo)

Advertisement: This is TWiL, This Week in Law, with Denise Howell and Evan Brown, Episode 267 recorded July 18, 2014

Eleemosynary, My Dear Watson

Denise: (bagandbaggage.com – @dhowell) Hi folks, I’m Denise Howell. And you’re joining us for This Week in Law, thank you so much for joining us.  We are thrilled to have you and we hope you will be thrilled to be here. We have an awesome panel for you today. We haven’t done too much on the Supreme Court’s recent patent decisions and we’re definitely going to get to that today, plus a whole bunch of other great stuff at the intersection of law and technology. And to help us understand it all, we’ve got Stephan Kinsella joining us once again here on the show. Hello Stephan.

Stephan Kinsella: (stephankinsella.com – @nskinsella) Hello. Denise glad to be here.

Denise: Great to have you back. What’s going on with you these days?

Stephan: Well, trying to stay out of the Houston see in the summer, but having a good summer and following all these patent cases and IP developments. It’s interesting to watch, but so far everything is going very well. The good thing about being on your show, I save time I listen to it anyway, so I can save the podcast for a walk.

Denise: That’s wonderful; great, we could save you some time. And make room for somebody else in your podcast lineup. Also joining us a return visitor to TWiL is Harry Surden from University of Colorado law school at Boulder.

Harry Surden: (harrysurden.com – @HarrySurden) Hey, Denise. How are you?

Denise: I’m doing well, thank you so much for joining us. Great to have you back.

Harry: It’s really great to be back.

Denise: So, tell us about Boulder in the summertime; make us all jealous.

Harry: Boulder in the summer is outstanding. I mean, I can’t say enough about it. There’s millions of hikes just within the city’s borders and it’s beautiful. This has been a particularly mild summer. And it’s sunny almost every day and it’s quite lovely, I must say.

Denise: (laughter) I knew that was going to be the case. Just, you know, hoping for. Maybe random thunderstorm shaking things up for you but. Actually, no, we wish you a wonderfully beautiful summer. And also enjoy the lovely summer weather in Chicago, Illinois is Evan Brown. Hello Evan.

Evan Brown: (infolawgroup.com -@internetcases). Hi, Denise. Yes, I am thrilled to be here and as nice as it would be to be in Boulder, I guess the second best place is to be sitting in front of a computer somewhere else on TWiL. Talking with the three of you. This ought to be a lot of fun, so it’s great to be here.

Denise: The weather’s always good on TWiL.

Evan: That’s right, it’s always sunny here.

Denise: Good climate control. All right, well, let’s check out the patent on, the patent climate recently in the wake of a couple important Supreme Court decisions. And some other good patent news. So let’s go there first.

(Advertisement: music playing, black background; white wording: it’s patent time)

Denise: Let’s head into wonderland via Nautilus if we can. The couple of big cases out of the Supreme Court this year. One called Alice, one called Nautilus. And really need to have a better understanding of these because they are already being applied by other courts. So let’s start with Stephan. Stephan can you tell us the significance of each of these cases, and sort of your take on them.

Stephan: Well, I think generally, the significance is a few things. The courts have been pretty much unanimous with its most of its patent rulings. They pretty much reversed the federal court, the Court of Appeals of the Federal Circuit in most of the recent holdings. And it seems like they’re basically, trying to clarify the law. Have it be more certain, which was one of the goals of the Federal Circuit in the first place, which it seems to have not done too good a job of, in recent years. And also to sort of push the rules slowly in a direction towards clamping down on frivolous patents, frivolous patent claims, patent troll assertions, things like that. I don’t think we want to give too much into the boring patent lawyer weeds but, you know, there are different aspects of patent law. One of them is the requirement to have an enabling disclosure another is to have enough   specificity your claims. And The Nautilus case, I thought was pretty good, because it’s really going to affect patent trolls a lot in companies that assert patents that have vague claims. It’s basically an attempt to impose certainty on the law. One of the justifications for patent law, is that it’s similar to property law and that the claims sets out the metes and bounds of property. And usually in the case of land, say, you can see the bounds pretty easily, or at least its determinable. And in a patent, you have to use words to describe the metes and bounds of the patent claim. If you don’t clearly defined it, then you have just created a lot of in certainty and this can be used in legal bullying by or even extortion as some call it by the patent owner because the target of the patent assertion is not sure they are not sure if they will win or not, because it’s not clear what is claimed. To be honest, I think patent lawyers and take advantage of this, sometimes they will throw in extra claims which have an intentionally broad, I’m sorry they aspect because they figure they may be can get this past the examiner. And it doesn’t really hurt your client to have a paid claim. The patentee does not suffer any cost what so ever from having a vague claim in the patent as long as some of the other ones are clear. Because you can always theoretically use that vague claim in defense or for offensive reasons. And so, patent attorneys will take advantage of the system and patentee’s will as well. So I think it is good, what the court did was basically they clamped down on the standards that you can use to overturn a claim for being too indefinite, okay? They made it easier to do that, so I think that is a good move. And, some of the other cases they are also ratcheting back on the scope of patentable subject matter. But probably the most import thing is that the fact that most of these rulings are unanimous, and so there is at least a fairly clear ruling. I can’t say the same thing about their copyright rulings, like in the Aereo case, but it’s at least in the patent fields, I think they are basically doing the CAFC job for them. So the idea of whether we need the CAFC is becoming scrutinized. If everything is going too appealed to the Supreme Court anyway. Why do we need a federal appellate court that is effectively the junior Supreme Court for patents? Why not have a diverse multi-circuit system like we have in other federal appellate litigation, where different circuits can approach each other and we can learn? The Supreme Court can decide conflicts if they have to. So, that’s a summary of some of the trends that are going on now in these patent cases.

Denise: Right, and for anyone not to on their lawyerly acronyms; CAFC would be the Court of Appeal for the Federal Circuit. The court that hears patent cases and has jurisdiction over them. Harry how is the Federal Circuit Court of Appeal faring these days?

Harry: Well, let me just, before I answer that. Let me just, comment that I really agree that the single biggest force driving patent law at the Supreme Court for the last 10 years or so has been patent trolls and most of your viewers may know what patent trolls are. But for those who don’t. These are folks who are variously called nonpracticing entities or patent assertion entities, but basically companies that tend not to make actual physical products, but just tend to buy patents and make the money by suing on patents usually against companies that actually make things like technology companies or provide goods and services. So they are, it is a controversial business model to be buying patents for the purpose of suing and monetizing when you’re, tend not to make products that people use. This has been a phenomena of the 2000’s, late 1990s, and it has really dramatically shifted patent laws. So you can read the Supreme Court’s decision in Alice, and in the Nautilus case is really being reactive to this context of patent trolls trying to make it harder for patent trolls and nonpracticing entities to be successful in extracting money using vague overly abstracts patents. So a very common technique for one of these nonpracticing entities is to buy a patent that is quite old. Patents last for about 20 years. So patent trolls will buy a patent maybe in its 15^th to 20^th year and use the technology that was invented 18 years ago, that was something completely different but whose language can be arguably mapped onto modern-day technology, and approach that modern day company and say, ’Hey, you know, it’s going to cost $5-$10,000,000 to resolve this and in actual patent litigation’s lawsuit. So if you just pay us a couple of hundred thousand dollars. We will go away’ and onto the next guy. So, that’s really the context, I think the best way to understand the reason Supreme Court litigation. So,

Denise: so,

Harry: sorry go ahead

Denise: So, we know the innovation act it to go anywhere, we are not getting patent reform coming out of Congress any time soon. So, are these two and there were some other decisions from the Supreme Court sort of helping with that situation, helping  flood the tide of patent troll litigation?

Harry: I really think they are. So, Congress is in kind of a stalemate when it comes to significant patent reform because the back story is there are two major industries that are at opposition with one another. On the one side we have the pharmaceutical and life sciences industry, which heavily depend on patent protection and in that area; by and large the patent system is working quite well. So they put a lot of their lobbying efforts to making sure that very little changes in the current patent system for fear of hurting their interest. On the opposite side of the spectrum is the technology industry where the patent trolls are the most active and there’s a lot of criticism of software patents into what extent they are useful and by and large, the consensus is that patents don’t work very well in the technology sector. So they are preaching from the other side advocating or reform. So the upshot is that Congress basically reacts by not doing much because they are caught on either side. So it’s interesting that the courts are kind of coming in and are the entities dealing with these significant problems much more effectively than Congress has over the years. And I think the Supreme Court has done a really, a lot of really good improvements in the patent system in the last 10 years that the Federal Circuit for whatever reason wasn’t able to get to the same results.

Stephan: Denise could I add one more thing?

Denise: Yes, please.

Stephan: We should make clear, I am a patent attorney, but I some people may not know, watching I’m one of the world’s biggest opponent of the whole patent system. So, let me be clear, I want to say something about the patent trolls system. The reason I think these are good decisions are because they slightly week in the patent system in general. But I think, really, there is not much wrong with the patent trolls per se, given the patent system. They are not the biggest problem at all. I think this whole issue is a distraction. There is no requirement in the patent law to make or practice an invention to have a patent on it, that’s been part of it for 200 years. So, the idea of a patent troll a nonpracticing entity is perfectly permitted within the law and most companies that make products or in a sense patent trolls because a lot of the patents they have in their portfolio don’t cover products that they make. The idea is this, if you sue someone for violating one of your patents that might cover one of your products or might not, it’s possible that if your competitor, you’re making similar products and the target of your patent lawsuit may have in their stack of patents a patent that covers something that you are doing. So, it’s a fair fight. In other words. So they can a search a counterclaim against you for infringing one of their patents. So the idea that the patent fight are more fair, although the patent attorneys, of course, make tens of millions of dollars off of this process and usually the companies agree with each other’s to settle. And when they do that they shout out smaller competitors and they maintain their cartel and oligopolies. So, the entire patent system, and I would respectfully disagree with very, I don’t think the patent system works well anywhere unless you mean it works well for entrenched business industries and the patent bar. It’s basically a huge damper on innovation and a huge cost in the economy and it totally distorts the structure of research and development. I think patent trolls are actually the least of our problems because at least the patent troll just wants to take a taste. Right? They’re like the Mafia, threatening a guy that runs a shop down the street, they just want a little bit. They don’t want to kill the business. They just want to tax it. So it’s like a small tax. Whereas your competitor may want to shut you down, right? So, Apple, Samsung, all these smart phone patent wars, so in a way patents help my competitors or a bigger threat than patents held by patent trolls, I would choose to get rid of regular patents for I got rid of patent trolls. And if I could have a system only with patent trolls that would probably be less bad than a system where people can patent their actual products and use them to stop competition.

Denise: Well, Stephan sounds like, what you are saying is Congress to fix this. We need, you know, the courts and businesses are doing what they can based on the laws on the books. We saw Representatives Goodlatte and Eshoo and various others trying to get this patent reform bill through the House and Senate, I think it past the house. It is not yet taken up by the Senate, so folks are trying not to let it die. But at the moment it’s stalled. Do you think, is this going far enough? Stephan, or do we need a heckuva lot more?

Stephan: Well, so my view is, even the best of Congressman on this issue only wants slightly reform to the system. There is no challenge to the fundamental position of IP, and there is no suggestion even among reformists to do anything radical whatsoever. So, any even minor change is called radical by the proponents of the existing system. Again, the patent troll bill, has been watered down already, it’s probably not going to pass any way and even if it does it will only have a very minor effect and pretty much only on patent trolls, which as I said are only a very tiny part of the real problem. The real problem is patent holders. So I think Congress is pretty much firmly controlled by the special interest lobbyists of the pharmaceutical industry and other big tech companies like IBM and Microsoft, which depend upon patents. IBM gets one or $2,000,000,000 a year from patent licenses. They don’t want anything to threaten that income stream. So I think they are basically sucking money out of the American economy, impoverishing consumers, reducing innovation, using Congress to get there as well. The only legislative change that I can think of, ever in American history that has ever improved patent or copyright law was the Obama patent law from a couple years ago when they expanded the prior user rights. That’s it. Every other change that I can think of ever legislative changes, the Supreme Court has made some minor interpreted changes recently that are good, but every legislative change always ratchets up the problem and makes it worse. Terms get longer, enforcement of copyright gets worse, the scope gets expanded. There’s talk about fashion rights. There’s talk about copyright like rights in bartender recipes for drinks. There’s always a pressure for more and more anti-competitive laws like patent and copyright law. So, it would be a surprise to me the way the system is rigged where Congress is basically bought and paid off by the major lobbyists and the patent trolls by the way of pouring hundreds of millions of dollars into DC. I don’t see, and plus the confusion about the whole purpose of the patent system. Everyone thinks it’s for the inventor, and it’s for innovation, they don’t understand its anti-competitive origins, and it’s basically mercantilist and protectionists’ purpose. That’s what it is. It’s basically completely antithetical for free market. But as long as people confuse it with free market. It’s going to survive and I don’t see much or for legislative change. So these small incremental steps of the Supreme Court has made or at least some sign of hope for a slight improvement in the situation.

Denise: Well, this would be a,

Harry: Let me pick up on this.

Denise: Yes, please do pick up on it, but this would be a good time to mention since we haven’t mentioned on the show yet. And just picking up on one of the themes that Stephan is mentioning there. I don’t think we have yet mentioned mayday.US on the show, but this is the organization that Larry Lessig has founded to take some of the money out of politics and it had a funding goal of, it was trying to get to $5,000,000.

(Webpage: mayday.us: we did it!, They said we couldn’t over 50,000 of you did, thanks to everyone for helping us get to $5M on July 4)

Denise: on July 4, which is hit. It has raised over $7.6 million. 110 days left until Election Day. It’s trying to form a superpac, to address some of the frustrating issues. Stephan was just ranting about. I’m sorry, Harry jump in.

Harry: it was Evan,

Denise: go ahead. Evan

Evan: no, that was me. Yeah, I mean, Stephan the things that you say about intellectual property are certainly provocative and had I been hearing them for not the first time they would have been as shocking as they were the first time I heard you say them. And I hope that people are taking it seriously when you say those things, even though they are quite radical to say that IP should be abolished altogether. And so, I wanted to pick up on the thread that you were saying, being against the free market, essentially mercantilism and all of that and tie that into another concept that you were talking about earlier about how it’s never been a part of the US patent system or probably any patent system for that matter, I don’t know. But at least, I heard from you it’s always been this way in the US patent system. That it’s never been a requirement that you practice the art, you can hold the patent, but maybe you just sit and hold it and decide to do whatever, frame it and put it on the wall, and enjoy the fact that you are a patent holder, but not engaged in commerce. Would it change the calculus, notably in your mind and would it temper any of the critical approach that you have towards this if it were a requirement in patent law that you actually do have to practice the art, actually engage in commerce, be part of the free market economy rather than sit back and enjoy these sort of government granted monopolistic rights and use them or abuse them, as the case may be. With that change anything at all, Stephan?

Stephan: Well, so my view is this, if you really want to improve the situation, you have to recognize the problem. And the problem is the very system itself. And so to my mind, anything that reduces the extent and scope and effectiveness of the system is good. So, incompetent enforcement by the government is a good thing in the case. I don’t want competent enforcement, but if I could say, anything that would really help the situation, it would be just the obvious things. Reduce the term, say patent should go from 17, roughly 17 years to 10 years, five years, and three years. That would be a big improvement. Reduce the scope be another thing. Get rid of troubled damages. Those kind of things that just reduce the penalties it exacts on the economy. I would I think I would be in favor of a working requirement. ¹ And by the way, so the history of patent is that they arose from the practice of the crown, the monarchs giving monopolies to favored court cronies and others in a certain area to be the only ones who could sell certain product, I think of Sir Francis Drake, one of the first privateers or pirates was given a letter at. Patton just means open in Latin, so it’s an open letter from the King, saying, this guy has a right to do this. That gradually changed from the statute of monopolies in 1623, you see, back in the 1600s; they weren’t afraid to call things what they really were. We used to have the Department of War in the US now it’s the Department Of Defense. We had the statute of monopolies, they knew what these things were. And that formalized the process and restricted it permanently to innovation and technological invention, even then it was a helter-skelter ad hoc process. When the US was founded in 1789, and the patent system was authorized by the Constitution, then you started having a modern system. Ever since then you never had to provide a working requirement. And the reason is because, you have to reduce the invention to practice and theoretically, that means you have to make a working model, but there is a doctrine called constructive reduction of practice; which is when you will a document with the patent office that describes it insufficient and enabling and other retail that’s called the constructive reduction of practice. And I think the idea behind it is that it would be unfair to penalize people who have good enough ideas that they can write it on paper, there’s no requirement that you have to sell the product. So I think I would be in favor of that required only because it would slow down and hamper the process and it would increase the cost of living and patent. But one drawback of that was that I think it would only further skew the process towards the larger companies because they would be able to afford to make working models and smaller inventors would even be less able to do it and so it would only further entrench the cartels and the oligopolies that the patent helps prop right now. So, I would be mildly in favor of it, but it would only be a patch and it might have some unanticipated drawbacks.

Denise: So, Harry tell us than what has happened in the wake of Alice and Nautilus, at least one case out of the Federal Circuit has decided that Acacia Research, and they are probably the biggest patent troll out there. They are also my neighbor here, I was getting my hair cut within a block of them yesterday. And however they got their hat handed to them by the Federal Circuit in a case involving photography.

Harry: Yeah, so I think that the Alice case is is just a third in a string of cases in which the Supreme Court is saying, abstract patents are bad. And as I said before, the thing that is driving that is that patent trolls have been using a variety of patents with a lot of vague or very abstract words arguing that their patent.

(Webpage: arstechnica: Law & disorder/civilization & discontents: Biggest”patent troll” lapped down hard by appeals court).

Harry: covers very general or invention or inventions that had been invented before. But I think actually the Alice case is much less significant than the Nautilus case. Which was the one that Stephan talked about, the definiteness case. That actually dramatically changes patent law. So it used to be the case up until the Nautilus case that patent words should be rejected if they were too indefinite but the federal circuit had interpreted indefinite to mean incapable of any definition. And the Supreme Court said that is too low of a bar, in fact, we’re going to say indefinite means that is, somebody in the art cannot understand what it means. But the upshot of that is that, a whole bunch of words that were previously used by patent trolls to cover inventions that they really didn’t invent, there’s now another arrow in the quiver of the courts to say, ‘hey, this is too indefinite, this word is too vague, this patent is invalid.’ So I think that is going to have a really significant effect. The courts previous to that Federal Circuit’s ruling really had their hands tied and even in the face of very ambiguous or vague words couldn’t do much in the way of invalidating them and now they have a lot more ability in the wake of the Nautilus vision. The Alice decision I think was really nothing new following the Supreme Court’s recent decisions in Bilski and Prometheus. Where they basically said that if you have an invention and it’s too abstract. Then, that’s not patentable if you claim it that way. So, I think, not much has changed there  although it does again, It gives the courts a little more ammunition in kind of invalidating these very vague patents. One thing I wanted to just point out to Stephan’s point is your readers, or your viewers might not know, that there is kind of a division between two kinds of nonpracticing entities. Maybe what someone would call the ‘bad’ nonpracticing entities which are the patent trolls and these are the companies whose business model is based upon buying patents and monetizing them. And I say bad in quotes because some people as Stephan said just see it as really this symptom of the patent system, not really the disease. I do actually agree with that to some extent that practicing entities are not morally better or worse. I just want to point out that there’s this other category of nonpracticing entities which are universities. So, universities do a lot of basic research and by in large, when they get patents they don’t practice they are patented inventions in the sense that, MIT or Stanford doesn’t have a factory where they are making things, by and large they license out there patented inventions. So they too are nonpracticing entities. So, I think the biggest position against a requirement to practice your invention would be that to hurt universities; who are some of the biggest engines of research and development in the United States. And I think universities, particularly the University of Wisconsin and other universities have been actively opposing some of these reforms, including the requirement to practice your invention.

Denise: Yeah, that’s an interesting point they don’t come up a lot in the discussion. They, and you guys correct me if I’m wrong, they don’t take their patent portfolios and pursue people who may be infringing. That’s not the University business model. As you said, Harry it’s more about licensing to people who come to them. Do you know of any universities who are out there aggressively enforcing their patents in litigation?

Harry: The University of Wisconsin is notable for being very aggressive in some of its life sciences portfolios, but I think, by in large, you’re right. The universities are not out there aggressively pursuing their patent portfolio.

Stephan: I thought that there was

Denise: So let’s get back to

Stephan: Sorry, I thought there was a recent couple of cases, MIT or Stanford have extracted like $1,000,000,000 in a couple of cases. And those are clearly backed by the threat of litigation. So, they are classic trolls and a lot of their patents are sold to patent trolls and become used by patent trolls. So, the universities are exactly the same as part of the problem as the patent troll problem, I believe.

Denise: Got it, and certainly universities are all about protecting their income streams wherever they may originate, they have to obviously to keep going. But, you know we shouldn’t think of them as somehow above enforcing their patents when it becomes necessary.

Evan: Doesn’t it seem pretty unfortunate, doesn’t it seem unfortunate if the universities are doing too much along those lines, because isn’t there, aren’t there opportunities in, and I just sort of know the contours of this, so I will turn it over to Harry or Stephan, there is the Bayh-Dole act, that gives a real incentive for federal funding of universities projects. Right? Am I even pointing in the right direction of all this stuff, the point being that there could be this problem of their actually being tax payers subsidize research and development going on, and if it’s used in an irresponsible way by universities. It seems doubly bad. Is there anything to that or am I sort of mixing up two things, and missing something here?

Harry: No, I think you’re generally right in. That’s, you’re right about the act, and that is the correct act, that allows universities to share in the benefits of federally funded research. I think that there is definitely a concern with a conflict of interest to some degree in what’s good for society, and what’s for the universities. Stanford is famous for having a very large patent portfolio and income stream based upon patents. And many large research universities, the University of Colorado included, actively encourage their researchers to get patents and, or increasingly becoming dependent on patent licensing fees and revenues. So I think, it’s something to think about, at least if there is some conflict of interest among universities.

Stephan: I would agree too, they are getting tax credit dollars, even if it is state tax credit dollars, even if Bayh-Dole doesn’t come into effect. And the whole purpose of the University is to expand knowledge, and to share knowledge, and the original alleged purpose of the patent act is not to stimulate innovation but to encourage disclosure of information that would otherwise be kept trade secret. Right? And so for universities whose mission is to promote human knowledge, to be using patents and the threat of patent to say stop to the best solution to be used on a research project, to threaten to do that with litigation, I think it’s contrary to the whole educational or eleemosynary purpose of the University in the first place. So I do think there is a conflict. And not only that, I think it’s kind of rich that a company like Twitter, for example. I don’t know if we would get into this today, this was in our rundown. Twitter’s IPA, their agreement, Twitter basically has agreed to shackle itself with an agreement with its inventors so that it can’t use patents offensively. It’s pretty sad that a private, for-profit company like that has a more progressive, pro-technology, pro-sharing, pro-learning policy than most universities do. You would think that that’s one you could appeal to professors and researchers by saying, ‘we are not going to use your patents offensively.”

Harry: And, just as a follow-up, while I would say I am not as dubious about the patent system as Stephan. I’m sorry I said your name wrong earlier, I apologize.

Denise: So, one more time. It’s Stephan.

Harry: Stephan, okay. Thank you.

Denise: Third time’s a charm.

Harry: Stephan. As I’m not as dubious, on the other hand, looking at the evidence that I have looked at. The benefits of the patent system are decidedly mixed so, if you look at the academic evidence you might think that given that we have this elaborate system of intellectual property rights upon which many companies participate that the evidence would be overwhelming that the patent system confers  net benefits to society; but the actual benefit is decidedly mixed. That they are possibly some benefits, significant number of costs and some prominent economists have advocated the elimination of the patent system. So, while not everybody agrees with that, the weight of that evidence is that, it is mixed with some benefits and some costs. I think many people find that surprising given how entrenched our patent system is in the marketplace, that it is not clearly beneficial to society.

Evan: I like the idea of something being decidedly mixed. That’s great.

Denise: yes

Evan: I’m going to take that one down.

Denise: I’m going to go ahead and jump in here to put our first MCLE passphrase in the show. Several of our listeners and viewers like to watch the show. Because it’s educational and I think all our listeners and viewers watch it for that reason, and if you are a lawyer or another professional in the field where our discussions jive with the, the subject matter, you may be eligible for continuing education credit. We have a wiki, the twit wiki, wiki.twit.tv TWiL has a page there with a bunch of information about applying for professional credit in your jurisdiction if you are a lawyer. So we put these phrases in the show in case your oversight body needs to know that you actually watched or listened, and didn’t just jot down, episode 267 on a piece of paper somewhere. I would like to make eleemosynary our first word. But I think I’m going to go with my, because I don’t think people are going to be able to spell it, I don’t know if they have to spell it, but it is an awesome word. I’m going to go with something a little easier to spell which was my own, sort of Freudian slip in talking about the tide of patent litigation. I believe I said flood the tide rather than stem the tide, which seems to be, at least the past trend, was for the tide to continue to flood. So let’s make it ‘flood the tide’. And let’s make talk next about Alice, and Nautilus, and High Mark and various other decisions out of the Supreme Court this last term. And whether they are stemming the tide or not, really. This all comes down to the Federal Circuit Harry, right? And whether the Supreme Court has given it significant, sufficient guidance and guidelines to on how to handle these cases?

Harry: Yeah, I agree with that, I think, and particular, I focus on the lower District Court’s which are the courts that patent infringement lawsuits are filed. So they take their marching orders about patent law from the Federal Circuit, who in turn takes their marching orders through the Supreme Court. So, I think the federal district courts, the trial courts who hears these patent infringement cases now have a lot more tools to deal with patent trolls or on frivolous litigation. Thanks to the Supreme Court; they are more able to award fees, attorney’s fees against frivolous cases, they are more able to invalidate poor quality patents. So one of the biggest problems that involving patent trolls is, as I mentioned, are for instance, the use of old patents that covered technologies that were 18, invented 18 years ago that has nothing to do with technologies today. So, really infamous example going on right now is, somebody who has a patent on sending audiotapes through the mail, it’s claiming that that patent covers, podcasts, and you know, something that was not even thought about back in the mid-1990s when this invention came about. And is going around suing a lot of purveyors of podcasts saying, ‘hey, if you read my words in very abstract way, you can see that I actually claimed podcasts,’ I actually invented podcast. And everyone knows, you know, the inventor of this patent did not actually invent podcasts, just that the language can be used to cover, and after rising later technology. And in many cases under the Federal Circuit’s earlier case law, a district court’s trial court had their hands tied. When dealing with patents like this because they did not have a lot of tools to deal with it. But now the Supreme Court, increasingly, is giving them more tools, more discretion to deal with somewhat frivolous cases like this.

Denise: Right, and thank you so much for mentioning the podcast patent. It is certainly one that we have covered in the past and have been watching the litigation grind on; close to Stephan’s neck of the woods in the Eastern District of Texas. Stephan do you think that these recent Supreme Court decisions will impact that case?

Stephan: I do, and I agree with Harry. I think another one we didn’t mention, which was another big one. Which was the Limelight case, which had to do with inducing infringement. Which is similar to a doctrine in copyright law. And what’s a little bit interesting to me about this case is how the court made the right decision legally, whereas they made the wrong decision in the Aereo case. In both cases you have someone who you could accuse of taking advantage of a loophole in the law, the patent law, and the copyright law and yet, in one case, it’s okay. And in the other it’s not. In the induced infringement case, the idea that to infringe the patent, one corporate person or one natural person has formed every step listed in the method patent or has to make users sell every element of an apparatus patent claim. So one person has to do everything claimed in the patent claims to be a direct infringer. And inducement infringement can only come after that, you can be guilty of inducement infringement. If there is direct infringement first by some person. And in this case, they held, I think quite properly, based upon the statute and case law up to this time that if one company does A-B-C , and a patent claim has A-B-C-D in it, let’s say, and a customer in the company does D. Then there is no one person performing all four steps. And therefore the company can’t be held liable under induce infringement because there is no direct infringement. So I think that is a good result, actually. And that will give companies the ability to design they are Internet services and products around this by making sure the customer has to do the final step or something like that. If there is a patent that is threatening this method. So that is a loophole, that’s a way to get around the law by complying with the law. Which is a good thing, which is what the law wants to direct people to do and that is what Aereo tried to do in the copyrights context by complying with the way that the statute is written. And the court just totally, they did a Bush versus Gore type analysis, I believe in this one, they did a totally results oriented, one-of-a-kind saying, with they did not want to rule outside this narrow ruling because they knew it was not an honest reading of the law, I believe. But in any case, at least in the patent field the court seems to be better than in the copyright field.

Harry: Let me just way in a little bit on the Federal Circuit. So, I might be the only person in America to slightly defend the Federal Circuit. And I actually disagree with a lot of their decisions. But here’s how I will defend them. The issues in front of them are very hard. And there are no obvious clear answers, one way or another for the vast majority of cases. So the federal court is muddling their way through, patent practitioners disagree on the outcome of these issues, patent attorneys disagree, and patent professors disagree. So, every time you see a 9-0 decision from the Supreme Court overruling the Federal Circuit, which is pretty common; the Supreme Court makes it seem like the Federal Circuit got it obviously wrong, the Supreme Court got it obviously right. But I just want to say, in my belief that is not necessarily the case. I think a lot of these issues are tricky and could have come out either way. And while I have tended to agree with the outcome of the Supreme Court over the Federal Circuit on some of these issues, they were by no means clear cuts in the answers that the Federal Circuit was obviously getting wrong for the most part.

Stephan: Can I make a little comment on that? I actually agree with everything that you said there. Let me just say, that my view, as a libertarian, to waive my libertarian flying; is that the reason for that is that this is not objective law that they are interpreting.  That this is just rules written down by bureaucrats called legislators that has nothing whatsoever to do with justice. So, in a way, I agree with the CRITS, the critical legal studies movement.  That law, if you interpreted as statutory law, it’s by and large not objective. It has nothing to do with justice, it’s not aimed at justice; the judges’ job in these cases is not to try to get the right results. Their jobs is simply to interpret words, words that were cobbled together by a bureaucratic process, by a bunch of people writing. Words that are all not always consistent with each other, and don’t have objective orders and they are not anchored in justice and property rights. So, I don’t blame the judges on either court for getting it wrong. I don’t think there’s even a right answer. All we can really do in some cases is hope for consistency, hope for certainty, and hope for the right results that comports for justice, even if the statute is not aimed at that. So, the reason I like what the Supreme Court has done it happens to be in the right direction. But I wouldn’t fault the other judges for having a tough time interpreting these t totally non-objective, almost arbitrary statute, legislated words which have ambiguous meanings. Under the American disabilities act, what is a reasonable accommodation, what is obviousness really, what is statutory subject matter really, what is fair use under the copyright act? I don’t think anyone really knows because there is no answer because they are just words written on a paper as an outcome of the political process when people write it are subjected to influences by special interest groups.

Denise: Well, there is a lot to unpack there. Evan, being our philosophical touchstone for the show. Anything you want to add? Before we move on to some market reactions to the patent system.

Evan: Sure, I would hate to stand in the way of getting into the compelling discussion about market reactions in the patent system. But, just to touch on the idea that you were saying there Stephan about it not being related to justice. I mean, that seems, at best, I can just say, I guess, I’d say that’s intriguing. Because, whenever you start talking about critical theorists. It seems, it seems like such a, such a difficult place to be in because it just seems like it’s going to quickly break down because all the critical theorists has to do is say here is the status quo, I’m going to go against it, and I’m just going to say that it is meaninglessness, and how can you argue against that? Does it really have to be really the end game, then once you say that what is written is meaningless, and there is no objectivity to it or what have you. I would tend to think that, yes, statutory law may have been cobbled together by bureaucrats that we call legislators. And that is what it is but does that necessarily mean, though, that it has no ability to at least point towards or tend towards justice. Maybe I’m being way too Thomistic, thinking of natural law. Something trying to permeate through, statues that are propagated here towards, tending toward some objective, justice. And I guess I want to take that side of things as being, sort of a little less hopeless, and sort of less aimless. In the fact that if we are going to legislate something, if we’re going to recognize interest, yes, they do get embodied in statutes that they may be imperfect, but at least it’s tending towards something that’s better than the alternative, which would just be complete anarchy. So I don’t know if I’m formulating a question or sort of put that back.

Stephan: Let me have a quick respond to that. First of all, law didn’t used to be thought of as legislation. It was the customary and developed body of rules that were developed by courts in decentralized processes in the search for justice. And so you wouldn’t have anarchy, even if you didn’t have legislation or if you didn’t have as much legislation. And there may be tendencies for legislation to tend towards some just result just because of the democratic process and our values in society. And furthermore, I do believe that legislators know that judges think of themselves as doing justice and so they factor that in. And judges will try to do justice when they can, but the ultimate problem is that judge’s job when there is a statute issue, their job is simply not to do justice, their job is to interpret the words of the statute. It’s a difference between a common-law situation where the job of the judge is to try to find a fair, equitable or just result in a particular case, given the developed body of justice in the law. So, it’s just the problem. The way law is made by the statute that I think causes these judges, I’m defending the judges in a sense, and I’m saying you can’t blame them for not knowing how to interpret words that were written intentionally vaguely sometimes in order to reach a political compromise. I mean side A and side B may think the word means something different, they do that anyway just to get it passed, and then the judges have to decide. And if the judges decide “wrongly” or “rightly”, I don’t know if you can really blame them in every case. I’m not saying that laws are never objective that statutes are never objectives, that there are better readings of some statutes, but quite often the borders become much fuzzier and vaguer and more ambiguous than customary than centralized law would be.

Denise: We saw and you mentioned the Aereo case, Stephan, how statutory law and considerations helped drive what you characterized as a results driven decision, when the court delved into the legislative history and pulled out comments around various portions of the copyright act to justify its outcome. But we are getting highly theoretical here, I feel like I am back in law school back in some constitutional law, or critical legal studies class. So, I’m going to die for us back to our rundown just a bit. Here. To the question that we were talking about earlier with twitter, and its intellectual property stand towards developers where it’s tightening its own hands as far as patent goes. We talked just a few shows ago about Tesla doing something similar; so I wanted to go around and get all of your respective takes on this kind of approach. Whether this is something where companies are simply playing to a market sentiment or do you think

(Webpage: Tesla: all our patent are belong to you, June 12, 2014)

Denise: that there is bottom-line interests being served here. Do you think there are higher ideals beings search and can we expect to see of this kind of hands off me have patent, but are not going to enforce our rights approach. What you think Harry?

Harry: So, I think this is an interesting development. I think it is a mix of marketing and idealism and actually good business sense. So I think it goes a little bit back to the divide I created between industries and technology with IBM sort of being one of the notable captions. Most technology companies seem to be more harmed by the patent system then they are helped. So consequently they tend to be opposed to patents. They tend to be targeted a lot by patent trolls and have them used against them much more than they derive benefit. But I think there is some idealism here, I used to be a software engineer and there is sort of a current running through the softer engineering community, that there is deliberately anti-intellectual property and anti-patent, for various reasons that, we can talk about. And I think some of this does reflect that idealism. So I think Google is actually a good example where they have implicitly pledged not to use their patents offensively, but only defensively. So, an offensive patent is where you go out and sue or threatened to sue to get licensing fees, defensively in contrast, you only use your patents in litigation after someone sues you first. And then you sue them back in terms of leverage. And I think some of that idealism is reflected in the Tesla announcement. But it’s also a bit of marketing to. So, Tesla got in the front page in the news by releasing their patents by making a pledge and you know

(Webpage: Tesla: all our patent are belong to you, June 12, 2014)

Harry: that is very good publicity for Tesla. And they probably weren’t going to be able to monetize them all that much, their interest is much more in establishing and electric car ecosystem. So I think, it’s hard to disentangle all these different threads.

Denise: What do you think Stephan?

Stephan: I agree with all that, I think it is a mixture of idealism and marketing, which I think is a good thing, they are both good things. I think that, they are recognizing that they need a thriving industry of electric cars, they need competitors. It’s good for them. It’s good for their workers. It’s good to have workers that you can hire that they can change jobs and go to a competitor because then you can get more talented workers in the first place. So they are sort of dimly recognize and the problem with the patent system. And I think more and more companies are sort of doing this thing. Like Google, although Google made this flange yet. Google has offensively started, trademarks and they have of course acquired Motorola, which had ongoing offensive patents against some other companies and they have not quashed those patent suits. So Motorola’s hands are not completely snow white in this area. Which gets to the other problem that I had a little bit at first with the announcement by Tesla, which I admire and I like. It’s a little bit confused in some of its reasoning, but the big problem that I have with it is the question about enforceability. Which some of your rundown links pointed to in which the Twitter deal aims to solve with this agreement. And you had a paper that was interesting too, which I read through, the SSRN paper about the enforceability of these sort of promises. Alternately, I am concerned that are not enforceable agreements, it’s not an agreement, there are no terms that you can’t even read that are really clear, they can be changed at any times, you know, where we buy the company. At most, you could hope for some kind of a stoppable base defense to keep someone from going back on their promise, which is sort of what that article by the law professor argued that you linked to in the show net. I’m also concerned about creative Commons for similar reasons. I may be, a big user of creative Commons, maybe his biggest promoter and supporter. But I may have a mental gap, because I have not seen a convincing analysis that any creative common license is enforceable, there is no consideration, there is no clear way for the customer who gets licensed to prove that he had the license, what if the website just removes the creators Commons notice. Five months later after you have downloaded it and use it in your book, so I’m a little bit concerned about all these things. Which is not the fault of the companies trying to use them, the fault is the copyright and patent system to make it difficult to lead the system. I think you talk last week. Denise about this I arrest ruling, which basically said that open source nonprofits companies can’t get a nonprofit 501C(3) status. If they don’t try to don’t enforce copyrights against people. So, it’s almost like the federal government is punishing you by taxing you if you don’t use their copyright system that they have voiced on the economy as well. I’m not sure which one props up the other one, if the copyright props of the tax system or vice versa, but they obviously are intertwined with each other’s, go hand in hand, and some of my friends have even hypothesized that something like this is happening with Tesla. Tesla has been receiving a lot of criticism lately, partly because refusing to use the patent system. They are announcing they are not going to use any of its, so they are starting to get some pushback from the established players as well because they are not playing the game and they are starting to not use the system. So, as more and more companies are voluntarily renouncing the use of the copyright and patent system. I expect them to get more and more criticism for not being a good team player.

Denise: Have you seen the Model Three, by the way? The model three Tesla?

Stephan: Yes, it looks sweet.

Denise: Good-looking car. Yeah, they may be getting criticism, but I think they’re going to have a product on the market that people want. I’m sorry Harry I digress.

Harry: Oh, no. That’s okay, I thought the model was a cool looking car, although not a particularly creative title.

Denise: no

Harry: but one thing I’ll say is, almost no legal decisions are with zero risks. It’s always on a spectrum between high risk and low risk. So, while I agree it is true that you would have to depend on the good graces of some future judge not to allow people who have pledged not to enforce their patents stop them from later in forcing them. I think, you know your risk is on the lower and of things as compared to the status quo. So it’s definitely not an ironclad risk-free scenario, but few things in law are. So

Denise: Okay, so let’s consider one and whether it is or not. It’s this lotnet arrangements that has been in the news this week. What it is

(Webpage: Engadget: Google, Dropbox, Canon and others. Team up to disarm teacher patent)

Denise: is agreements, I would take it, I would guess, I’m not sure how they are formalizing things, but it is a group of companies getting together. Right now it has Canon, Dropbox, Google, ASUNA, SAP and Newwag and I think others can join if they want. You can find it at, let’s see what’s its website. Lotnet.com and idea behind it is that all of these companies are agree that should they ever sell their patents, should they ever divest themselves of all their patents, they will license all the other lotnet members to use those patents. So, they can never be sued by a patent troll.

(Webpage: Lotnet: Companies of All Sizes Have Been Targeted By Acquired Patent)

Denise: this if it is contractual would seem to be enforceable. Right, Stephan?

Stephan: I think it is enforceable. And that’s what’s good about it. What’s interesting about it is this is another one of several, sort of patent pooling or patent defense league arrangement that I have seen popping up in the last few years. It seems to be aimed at patents troll primarily with an interesting strategy. The main problem with patent trolls is that you can’t countersue them because they’re not making any product that you might have a patent to cover, so you’re pretty much defenseless when a patent troll attacks you. And so the problem with these patent defense leagues is that they’re useful against competitors sometimes, but they’re not useful against patent trolls because even if you have 10,000 or 100,000 patents in a pool you could draw upon to use defensively, it doesn’t do any good to use a patent defensively against trolls. It seems to me like what LotNet’s trying to do is they’re trying to disarm the trolls ahead of time by basically putting a poison pill, basically, in all the existing patents that are out there, so that in five or ten years when these patents start coming up for sale as start-ups go bankrupt and need to sell their patents that they won’t be able to be bought and used by trolls. So what they’re trying to do is basically take the thorns off the rose ahead of time, and I think it’s a valiant effort; but I’m afraid that it’s — it can only have so much effect. You’re only going to get a certain percentage of the entire existing number of live patents in the U.S. that are bound up under such an — even if you got 50 percent, there might be another two million live inventions out there, live patents out there, that could be used by trolls.

Denise: Right.

Stephan: So it could reduce the risk somewhat, and I admire the effort. And I think we’re going to see more attempts like this.

Denise: Well, Lot — the “lot” part of LotNet — stands for “license

on transfer.” As of today, according to their website, they have seven members; but I could certainly see this being an attractive kind of thing a start-up might want to join to try and protect itself against patent troll lawsuits down the road. What do you think, Harry?

Harry: I really agree with what was just said. I think it’s a valiant effort, but it really is a finger in the dam. So 500,000+ patents get issued every year; any one of those might be bought by a troll down the road. And I think agreements like this are probably going to only cover a very small percentage of them. On the other hand, very large companies recently that have either failed or gone belly-up — for instance, Nortel Networks and Polaroid and large companies in the past — have had their patents sold off. So if you can get a bunch of really large players, it might have some impact. But I still think it’s sort of just a finger in the dam, given how many — there were something — estimated 2 million live patents plus at any given time; so this will only cover a small percentage of them. But I like the idea, theoretically.

Denise: What do you —

Stephan: Let me say one more thing about this, if it’s okay. I think that the value of this could be more against patent competitors than patent trolls because this could have a network effect where people start joining this in an industry to get the right to use the patents in the pool defensively, like in patent defense leagues against people in their industry. And I believe that patent competitors — that is, competitors in an industry with patents — are a bigger threat than patent trolls. I think this is actually more promising than it would seem to be, given that it only could have so much of an effect on patent trolls. So I would expect and hope that these things could snowball and take effect in different industries. I’m a little bit worried that the FTC’s going to start saying this is anti-competitive if these companies that are competitors pool their patents with each other just for defensive reasons. So they’re trying to get rid of an anti-competitive monopoly the government is forcing them to get to defend themselves.

Denise: (Laughs)

Stephan: And that might be called anti-competitive. So you have the interplay of anti-trust and patent law in a bad way, I’m afraid. But there’s some potential here in that respect, I think.

Denise: I think my head just exploded. We’ve got the government in your scenario saying, “You’re taking monopoly tactics to get out of our monopoly law.” (Laughs) It’s pretty funny. All right. Evan, what do you think about LotNet?

Evan: Well, it’s interesting because it lends itself to so many useful metaphors — cutting off the thorns ahead of time; finger in the dam —

Denise: Yes. (Laughs)

Evan: — poison pill … I mean, those are all very apt, and I guess we’re wont to do that when we’re confronted with novel situations, novel approaches like this. And of course I agree with what Stephan and Harry say here about it being of limited utility so long as there are only a few participants in that, which is not to say that it wouldn’t work if it were much larger in a larger set of companies and patent holders that were involved in it here. I think, if you actually read the license agreement itself — excuse me. The license agreement that actually gives structure and gives — well, structure — to how it actually works, it’s really interesting how it works here because you’ve got this license that is granted to all the other members of the community. That license doesn’t take effect until immediately prior to the transfer actually happening. So it’s sort of like this weird thing that happens; and so we start to think of our — Well, where does this actually happen? When does it particularly happen? But if one of the members transfers the patent outside of the network, outside of the membership here, that license is granted, I guess, presumably that moment before the actual assignment is made. So if you start thinking about it too literally, that gets sort of whacky to think about. But, of course, it has to happen that way because it’s not a present license. You’re not allowing all of your competitors to use the patent right as soon as you become a member; but then, of course, after it’s been transferred, you no longer would have the ability to grant the license. So it has to be that way, but it’s just sort of a whacky, novel thing to think about, how it’s actually done. And the license agreement seems to be really well-written, and it’s certainly interesting reading.

Denise: Right. Wasn’t there something in a states’ and trusts’ law that was about a springing — I don’t know; I’m trying to remember back to states and trusts on the bar —

Evan: Yeah. Right.

Denise: — but something that sprang into life on a contingency. And I remember those being not enforceable, so I don’t know.

Evan: Something with —

Denise: Don’t trust me on this. I am decades away from the Bar exam at this point, and springing arrangements are not fresh in my mind.

Let’s move on to — before we leave U.S. patent law and its various legislative and judicial aspects, let’s check in with the patent office, which had a nominee to head it, Phil Johnson, who has now been withdrawn. I guess the Obama Administration took a lot of flak for nominating Phil Johnson. He’s someone who was in house with Johnson and Johnson and known as someone who was a very strong proponent of strong patents and patent rights; and the Obama Administration decided, “Nope, we’re just not going to nominate this guy.” Who knows what their thought process was, but they backed off his nomination. And so Michelle Lee, former Googler, is still the interim head until we have someone nominated to head the patent office. (Laughs) Evan, I saw that. Evan’s texting me funny things on our back channel right now along the lines of the name Johnson. So sorry, I just outed you. (Laughs) In any event, let’s — yeah.

Evan: (Laughs)

Denise: Let’s talk about whether we think that this says anything about the U.S. PTO and Michelle Lee’s tenure there; and if you have any guesses about who the next nominee might be, now would be the time to toss them out. What do you think, Harry?

Harry: Well, I just want to say, I don’t know Phil Johnson and his qualification; but I will say I think it is important for the Obama Administration to be putting forth somebody who is committed to really improving the patent office and experimenting and trying to make things better. And I think Dave Kappos, the former head of the patent office, did an excellent job; he was  very willing to experiment. So somebody in that mold. I think Michelle Lee would be an excellent choice; I think she’s eminently qualified. And as to Phil Johnson, whether or not, he was probably very qualified, but I think appearances are important. I think it’s important not to pick somebody who comes to the table kind of with an overhang of a predisposition one way or the other. And I think that was his problem; the assumption was that it was going to be the status quo. That may or may not have been true, but — it reminds me a little bit, at the FDC, Tom Wheeler, who’s a former cable lobbyist, may or may not be predisposed towards favoring the cable industry; but the fact that he had that position sort of clouds everything that goes forward.

Denise: Right. Stephan, any thoughts about heading the U.S. PTO?

Stephan: Denise, congratulations. You’ve finally found a topic about which I have no opinion whatsoever.

Denise: Yay! (Laughs) I didn’t think that was possible.

Stephan: I’ve been a —

Denise: Do I win some kind of prize?

Stephan: I’ve been a registered patent lawyer for 20 years, and I didn’t even know the PTO director had anything to do with policy, so this is obviously not something I care much about. (Laughs.) I did interview Todd Dickenson, though, one time when I was an associate patent attorney in Philadelphia, so I did meet one of the earlier patent directors. But no, I have no — I don’t think it matters, to be honest.

Denise: Okay. Evan?

Evan: Yeah, the same thing. I mean, just sort of to take off on that, it seems like it’s a very political decision. I don’t think there’s as much policy making as what there is at the FCC, to tie in with what Harry was saying about the comparison to Wheeler, who brought a lot of political baggage to this as well. So there’s certainly something to avoid, inasmuch as this is a political position, a political appointment, these appearances could really detract from that. So I think it only makes sense that things are transpiring the way that they are.

Denise: Okay. I think we have to make “no opinion” our second MCLE pass phrase for this episode of This Week in Law.

Stephan: (Laughs)

Denise: There we go. We’ve got two of them in there. And before we leave the topic of patents, let’s talk about Apple briefly, and the fact that it appears Apple is in a battle for its ability, under Chinese patent law, to be able to put Siri into its phones sold in China because there is a patent holder in China who has a patent it claims covers the Siri technology. So I guess this just kind of highlights that as much as we can try and tinker with the patent system in the United States, all bets are off if you need to sell in an enormous market like China, right?

Evan: Uh-huh.

Denise: Uh-huh? (Laughs) Once again, no opinion.

Harry: Well —

Denise: What do you think, Harry?

Harry: I will say that the intellectual property system in China is very selectively enforced, so I’m very skeptical that — to the extent there was a really objective basis behind this because there’s actually, on the one hand, quite rampant intellectual property law violations that happen; but then, occasionally, the law in China steps in, and often it’s favoring a Chinese company. Now, I guess the same could be said, to some degree, in the United States, but I think the system in China is much less developed as compared to the United States overall.

Denise: Got it. Stephan, anything to add to this?

Stephan: I think there’s a — I put on my blog a while back — there’s a Chinese proverb about, “Copying something is a beautiful thing,” or something like that.

Denise: (Laughs) Yes.

Stephan: So they kind of have this ancient tradition, which I think is good.

Denise: Right. Mountain villages and such.

Stephan: No, not a lot of comments. Yeah, something like that. But I guess you could have a little Schadenfreude here and say, “Live by the IP sword; die by the IP sword.” But I don’t think it’s a good thing, ultimately, although as a frustrated user of Siri, I don’t know how badly this will hurt them, to be honest. I think a more important case is, there’s another one — I don’t think it’s in the rundown — there is a patent troll who I think is poised to collect royalties from Apple for all iPhone sales for, like, the next 10, 15 years, getting one percent of every iPhone sold. And apparently, that’s about $400 million a year. So we’re talking about a 4 billion, 5, 6 billion-dollar payout, if this patent troll goes — that could be a more substantial patent hit coming Google’s way. I think they can probably get out of this one with enough money.

Denise: Apple’s way.

Stephan: Yes, Apple’s way, sorry.

Denise: Yes.

All right. Well, we’ve been talking about Aereo and its aftermath. Let’s look at a bit of its aftermath over in the area of entertainment law.

(The intro plays.)

Denise: So we mentioned that, immediately after the Aereo decision, Fox went into the Ninth Circuit and said, “Hey, this directly impacts part of our case against Dish.” They’re suing over Dish’s hopper technology but also over some streaming where Fox contended that Dish was doing basically the same thing that Aereo was doing; and if Aereo shouldn’t be able to do it, then Dish shouldn’t be able to do it either. And what happened here is, they went in asking for an injunction against Dish for this kind of streaming, and the Court said no. No injunction. So all that that means is the court decided, first of all, that — whoops, I just got some feedback there. — decided that Aereo was narrowly decided; at least, it took the Supreme Court’s admonition to heart in that regard and said, “Look, we’re not going to start granting injunctions based on this. You’re going to have to have a trial over whether or not the streaming service is the same thing as Aereo.” So any thoughts on this, Harry?

Harry: Yeah. So I think that the — as was said earlier — the Supreme Court took great pains in Aereo to try to limit it to the facts of Aereo. Now, just because they tried doesn’t mean it’s always going to happen. So I think this is one example where you have a different technology, and the Court recognized that they didn’t apply — that Aereo didn’t apply. I think sort of the larger commentary with Aereo is that we have laws that were developed in the 1970s that are being applied to the technology of 2014; and that is the major problem. So I don’t think there was actually a clear outcome one way or another on the Aereo case for this very reason. Because back in the 1970s, an antenna was a several-foot thing that attached to a CRT TV. Fast-forward 40 years, and antennas are a fifth the size of a dime, and you have a hundred of them attached to a computer card broadcasting Internet — or broadcasting TV — over the Internet. These are ideas that just simply didn’t exist 40 years ago. So I think it speaks to the fact that maybe the Supreme Court and the Courts are going to continue to struggle with new technologies that were not anticipated, kind of an antiquated legal framework. But the other point, I’d say, in Aereo’s defense: the Supreme Court was sort of critical that they were taking advantage of loopholes; but Aereo was very much following the state of the law in their circuit, the Second Circuit. So I think it’s hard to say that they were taking advantage of loopholes when what they were doing was actually the law of the land in their circuit until the Supreme Court found otherwise.

Denise: Evan, would you have been stunned if Ninth Circuit had decided to go Fox’s way here and grant an injunction?

Evan: Well, I think that would have been sort of an unusual thing for the Court to do in that stage, a preliminary injunction here. Because when you actually read the Ninth Circuit’s opinion, it doesn’t talk about Aereo; it talks about just the real analysis that’s going on here as to whether Fox had shown an irreparable harm. So there were plenty of other reasons for the Court to deny a preliminary injunction other than just the simple narrow fact that it is or is not a lot like Aereo. There were other factors here besides the likelihood of success on the merit. So given the fact that this litigation over Dish’s technology has been going on for a long time and the technology has been out since January of 2012, it comes as no surprise that there is no preliminary injunction at this point, which, I think, is pretty clear by implication here. It doesn’t mean that, ultimately, this technology won’t get Aereoed. It could. That’s not what the holding is here — or that’s not what the conclusion is here from the Ninth Circuit having done what it did.

Denise: Right.

Evan: So there’s plenty more to be written about this — the way that Aereo may or may not apply to Dish Network’s technology.

Denise: Right. And this case is scheduled to go to trial next January. Stephan, any thoughts on the role of Aereo in this case or on Aereo’s sort of wholehearted adoption of its new cable company  moniker?

Stephan: Well, I think Aereo’s playing it smart. They may still find a way to survive by doing five, ten minutes of time-shifting at the customer’s request so there’s not a transmission to the public. I don’t know if they can make it. I wasn’t surprised by this. I think that there was no irreparable harm shown. I’m afraid Dish will ultimately lose. There are some differences between Dish and Aereo, but according to the Supreme Court’s new test, they look a little bit like Aereo; although the word “Dish” doesn’t sound like Aereo, so I don’t know if that would make a new difference in the new way Supreme Court thinks about things.

Denise: (Laughs)

Stephan: But I’m afraid they’re going to be imperiled in what they’re doing, but maybe Aereo will find another way to get out of this with the time-shifting idea.

Harry: Aereo’s also —

Denise: All right — go ahead.

Harry: — trying to reclassify itself, somewhat unsuccessfully, as a cable service as a way to survive.

Denise: Right. And I mentioned that a second ago. What do you think, Harry? Is that going to fly?

Harry: I’m a little dubious about whether they’ll be able to do it, but I think they’re going to give it their best effort.

Denise: All right. Well, we will stay tuned to the Fox case coming up in January. We’ll certainly watch what happens with Aereo as they continue to try to have a business.

Right now, I want to switch over to a story having to do with the social web.

(The intro plays.)

Denise: A couple of stories. And I’ve got to warn you, they’re depressing as anything. Usually, we think of the social web, we think of grumpy cats being the most depressing thing that might come your way; and we think of the great things that the web becoming more social has done. People are getting funded; people are able to reach audiences they never could. I don’t think anyone would argue that the social web has been a huge social boon in many, many ways. But it also — as we can see in a couple of stories, one of which was tweeted to me by our very loyal listener TotallyFried, who is great about tweeting us stuff and putting stuff on our radar. A couple of stories showing how when you add a social component to an already terrible situation — a bullying, harassment kind of situation — it can become exponentially worse. And in this particular case, there was a 14-year-old boy in San Diego attending public school who got sent out of his classroom for eating sunflower seeds in class. Not allowed. So he’s wandering the halls — apparently he was not told to go anywhere else — and had some time on his hands. And very soon he had other things on his hands — in his hands —

Evan: Oh, my.

Denise: — in the restroom at school. And although the poor guy thought he was alone, he apparently was not because another schoolmate was in there, captured the events that transpired on video and then shared them with the public, including many, many students. Members of his school knew what had happened. Unfortunately, the kid’s parents never knew what happened, didn’t know what was coming their way because they went on a family trip for Thanksgiving, and — this was just a couple of weeks after this all went public — and the poor guy killed himself. So — and left a suicide note saying how he just couldn’t handle school, and it had all spun out of control. So the parents are now in this horrific situation, obviously. The poor kid. What a terrible place to find yourself in as a child. As a mom, it just — this story just breaks my heart. So the social media component of it, I think, is interesting. Just — it would have been awful just to have stories like this being told around school; but because it — who knows why the kid didn’t tell his parents? Maybe they could have done something to make the situation better — but really, the fact that everyone saw this video is what made it so awful for the guy. And then, in an even worse kind of situation, up in Northern California, there was an episode involving a high school girl who passed out at a party, and some boys who decided to physically take advantage of her and filmed themselves doing it. I’m not sure if it was photographs or video, but —- what have you. And then, again, went viral; and the girl reacted badly, and once again there was a suicide. We have a law that may get enacted in California called Audrie’s Law as a result of the latter case; and among the things that it would do is if, indeed, a minor is convicted for some sort of sexual crime, if they have taken the step of sharing pictures or texts of that crime to harass or humiliate the victim, they would have a year added to their sentence. This Audrie’s law also would have court proceedings for teens under it — teens prosecuted under it made public. Ordinarily, minors’ court proceedings in this kind of case would not be. So that is pending. And I wanted to toss it out to you guys just to talk about the aggravating role of social media in these kinds of situations and whether the law should play a role in it. In the San Diego case, the reason it’s in the news right now is the parents are going to sue the school district, it sounds like, for not taking more steps to protect their son, I think, when the video was going around. They haven’t filed the lawsuit, so I’m not sure what their claims are at this point. But there’s also the aspect of, what do you do to the boy who posted everything, made it public? According to the article in our rundown — you can access all these links at delicious.com/thisweekinlaw/267 for this show. The San Diego County District Attorney’s Office declined to say whether the boy who the claim says took the video might face charges under the state’s anti-bullying law; however, a spokesman for the district attorney said a hearing is set for July 23 in juvenile court on the matter. So there are a couple of aspects there to consider. If you’re going to make something like this widely public and you’re a minor, what sort of consequences should there be, and what sort of consequences should there be for a school to police all this? Stephan, I’ll start with you. What do you think about all this?

Stephan: Well, it’s obviously horrible; both cases are horrible.

Denise: Yeah.

Stephan: In the first case, the boy case, it’s hard to find an actual tort that should be recognized under law. It’s obviously a reprehensible act. I guess you could pin it on some kind of trespass. There was a use of property and violation of, say, the implicit contract of the owner, which was the school district, not to use property in certain ways. So you could probably find a type of trespass that was done by the guy that videoed it. And of course, in the case with the girl, we already have laws against assault and rape, which sounds like is what happened. And so I see no problem with the law enhancing the penalty or the damages to be awarded if there’s a violation of rights. And then, if it’s exacerbated by, say, publishing photographs, which make the injury done to the victim even worse, I see no problem with those kinds of things being taken into account; and I think they should be. Whether the extra year is the right way to go, I don’t know. But these are obviously horrible things; and I think, in these cases, prevention is of course more important than how we deal with it after the fact. But they’re sad cases.

Denise: Yeah. I’m really hoping that schools, in the aftermath of these kinds of events, will — hopefully they already are, but even more so — spending a lot of time with kids discussing social media and its responsible use. Evan, what do you think about penalizing people who take something embarrassing or horrific and make it public?

Evan: Well, I mean, with social media, that has the ability to enable someone to inflict greater harm than other methods. It’s much worse than an idea or a rumor, just going from person to person in the context of actual talking to people in the hallway or what have you. With social media, it has the potential for wider distribution, and there’s also this idea of the permanence of it as well. This digital evidence could be around on the web in some form for a long, long time. So no doubt it has the ability and the capacity to aggravate the circumstances. And for that reason, it ought to form a basis on where to enhance the sentence or somehow raise the level of culpability that actually happens, or the responsibility of what actually happens here. Make it a worse kind of crime, a higher form of criminal liability is what I’m trying to say, whether I’m saying it artfully or not. The concern that I have is that, when you single out a certain mode, like social media, to be that which should be the basis for that enhancement, I think what it can lead to is ideas of zero tolerance. And because they’re social media, well, this is inherently much worse; and so therefore, there shouldn’t be any mitigation going on because of this aggravation. Any aggravational aspect of this would offset any kind of mitigation that may be present because of other things going on in the context. The best comparison I can make of it is the ridiculousness that you see in a lot of situations now with zero tolerance for guns in schools. Of course, guns in schools are a terrible thing; it’s one of the worst things that is present in our society today. But there are these stories of, like, seven-year-old kids getting expelled from school because they’ve formed their fingers in the shape of a gun like this and pointed it at another student. That’s ridiculous. That’s dumb. That doesn’t address the concern and the aggravation that comes from having carried an actual gun to school and murdered classmates and all of that stuff. So what I guess I’m really trying to articulate here is, yes, the social media aspect of this can indeed be aggravating. The law ought to do that; but we’ve got to be really careful to do it in a way that doesn’t lead to absurd results merely because there is a social media component to it. It’s got to be a pretty broad analysis, and there’s got to be an evaluation of the entire circumstance before you start adding years onto kids’ sentences just because they happen to have tweeted about it.

Denise: Yeah. I totally agree with you, Evan, and think that it’s so — and I know because I’m a mom, and these stories impact me very viscerally. And it’s so possible. (Laughs) It’s probable, even, in that kind of situation, that people will overreact and want to take measures that may be over broad in trying to make sure that something like that doesn’t happen again and specifically does not happen to their child. So I think it’s a really dicey kind of situation that we have to watch carefully. We are talking about minor kids in all of these situations, both the victims and the cyber-bulliers, if we want to use those terms. And I should mention, in the Audrie’s Law case too, that when I first heard about this case, the word “rape” was used as to what happened to the girl. And maybe technically, under the law, that’s what this was; but, without getting too graphic here on the show, there was no penetration. It was more of a touching than anything else. And actually — I’m not going to go too much into the details; you can read the story and get what I’m talking about. The reason I’m going into the details is, I could see where the boys involved — first of all, the boys involved, obviously, terrible, terrible thing that they did, should have been parented better to make better decisions, etc. But I could see, in a situation like that, where they’re maybe just kind of not thinking they’re doing anything too terribly bad, that they’re just kind of messing around, that they — rape is not a word in their head as they’re doing this. So again, maybe that’s an educational issue; but I think it has to factor into, what do you do with a child who has done this? Obviously, you don’t want to be dealing with it after the fact; you want to be taking proactive measures to make sure that it doesn’t happen. But if you try to put yourself into the shoes of the parents of the boys in the Audrie’s Law case, you might find that all of a sudden you think the law is getting pretty harsh here. Harry, what do you think about all this?

Harry: I certainly agree with all that’s been said; it’s a really tragic circumstance. And I want to echo something you and Evan said, that I think we’re living in a world now where social media has the ability to magnify harms of the past that may not have been so problematic. And we’re living in a new world where we have to deal with these situations which might in the past, thirty years ago, might have been just a harmful rumor, now can explode on the Internet in a video or posting that really drive these drastic circumstances. And technology brings benefits, but it also has its costs. I think, similarly — and really, to echo a theme you just said, which is, I think the social media allows teenagers to make bad decisions much worse than they would have been in the past. So — not to defend the bullies in this case who I think did a terrible thing. But teenagers have underdeveloped impulse control and risk-taking, and social media allows them to turn bad decisions into really bad decisions that lead to tragic results. So it’s something we just need to be aware of in this new world, and it’s not really going away. From a larger level, I would say, as a law professor, I’m definitely skeptical about any law that tends to be a reactive law, that reacts to a particular incident. So without having looked at the details of Audrie’s Law, I just want to say in general, laws that get passed in response to a particular incident have a tendency to have unintended consequences down the road. And I’m really not a fan of sort of emotional, reactive law-making this way, generally speaking.

Denise: Yep. Something to be very, very cautious of as you try to deal with these situations and make policy decisions around them.

Let’s lighten things up substantially, maybe jarringly. (Laughs) Let’s go to our resource of the week first so it’s not too jarring. The Net Neutrality debate has somewhat SOPAed. The FCC site, as it was trying to deal with all the comments it was getting this week — it had an initial deadline of July 15 to close the initial comment period on the pending open Internet proposal. They’ve gone ahead and extended that to tonight at midnight Eastern Time. If you have not gotten in your comments to the FCC, now would be the time. If you need some refreshers on Net Neutrality, of course there are lots of resources out there for it. But if you wanted a more light-hearted one, the people at College Humor have done one. So I just wanted to point you toward that briefly.

(A video begins.)

Male speaker on video: Bruce, I am your father.

Hi, I’m Adam.

Female speaker on video: And I’m Emily.

Adam: We make funny videos on the Internet.

Emily: But soon, we might not be able to.

Adam: That’s because Net Neutrality is in jeopardy.

Emily: Net Neutrality’s the principal that says that ISPs — you know, these …

… can’t discriminate between different types of traffic.

Adam: That means that whether you’re a bedroom music producer, a couple with an amateur porn site —

Denise: Aaaaaaah! (Laughs)

Adam: — just someone with a great start-up idea …

Female speaker on video: It’s like Dropbox for your food.

Adam: Great idea. Hope it works out.

Denise: (Laughs) We’ll end on “Dropbox for your food.”

(Video fades out.)

Denise: It goes on for quite some time going through, obviously, one side of the Net Neutrality debate. So I would encourage you to seek out more detailed and serious resources on Net Neutrality; but every now and then, you have to lighten things up.

Evan: (Laughs)

Harry: Yep.

Denise: And the main point here is that Friday, tonight, is the first deadline; and then September 10 will be the deadline for reply comments to the FCC —

Harry: Let me also —

Denise: Yes?

Harry: Let me also give a shout-out to, if you haven’t seen John Oliver’s hilarious and brilliant take on Net Neutrality, you can find it on YouTube, I think. Really funny and just a brilliant piece of social commentary. I think it’s a nice complement to the video you just showed, both informative and humorous as well.

Denise: And he just seems to nail that informative and humorous milieu, so good for him. Or [unintelligible], maybe, is what I’m thinking of for John Oliver. So yes, definitely check those out; and once again, pay attention to Net Neutrality. Get those comments in. Oh, and bears mentioning here, too — they’ve topped a million comments to the FCC and are closing in on the record number of comments on any issue that the FCC has ever received. That was 1.4 million, and guess what that was on? That was for the Janet Jackson clothing malfunction at the Super Bowl. (Laughs) So arguably, this is a far more important issue, so hope you’re paying attention.

And our tip of the week would be for anyone wishing to make a boat in the country of Japan that is a digitally accurate rendering of their vajayjay. That has been found to be illegal in Japan. So there’s a really hysterical YouTube video on this that highlights the poor artist who wanted to make — it was sort of like a kayak. And she had digital scans done to make it an accurate representation of her nether regions. And the whole point of this artist’s work is to demystify the pussy, as she calls it. (Laughs) And she makes iPhone cases and various other things. Here, she sought to make a boat, but no, it violated the country’s obscenity laws. So our tip would be, I guess you can’t do that in Japan. Sorry, anyone who had similar designs. (Laughs) The irony of all this is, too, that apparently, fertility parades in Japan are very common, with full three-dimensional renderings of the male genitalia; but that, apparently, is not problematic under the law at all. So bit of a double-standard going on there. Our tip would be not to make your vajayjay a boat in Japan.

Harry: (Laughs)

Denise: So I hope I’ve sufficiently livened things up here at the end of the show. It’s been so fun talking about both heavy and light-hearted issues with Harry Surden from the University of Colorado at Boulder. Harry, so great having you back!

Harry: Thank you so much for having me. It’s really been a pleasure; always enjoy doing this, so thank you.

Denise: Good. Well, we’ll definitely have you back again. Tell us, though, in the meantime, what you have coming up, if anything, folks in the area could come by for or keep an eye out for, or anything folks online could.

Harry: Absolutely. So once the semester starts up, which for us is late August — it’s coming up — University of Colorado Silicon Flatirons has a series of really interesting conferences on privacy, patent law, Internet law — open to the public, so come on. There’s a lot going on at the University of Colorado in terms of entrepreneurship, intellectual property law, computers and law. So come on down if you’re in Boulder. We’re always happy to see you.

Denise: Great. Would love to do that when we’re in town. Obviously great to get to Colorado whenever you can. Stephan, I love getting to Houston, too. I was reminiscing with a friend who has a youngster about the age of mine that pretty soon we’re going to have to get on over to NASA and take them on the tour. Other than interesting space tourism, what else is going on in your neck of the woods?

Stephan: Well, I’m working on a collection of my law review articles and essays called Law in a Libertarian World, which should be coming out as a book in the next six to nine months, whenever I finish it up. So I’m working on that, and another IP monograph called Copy This Book; so that would be another year or so. So I’m working on those things in the background while I’m doing my legal practice and raising an 11-year-old and trying to keep the fort under control here; but everything is good.

Denise: Yeah.

Stephan: And I really appreciate the show. Nice to meet you, Harry.

Harry: Nice to meet you as well.

Stephan: And it’s enjoyable as ever.

Denise: So great to chat with you again, Stephan. And yes, raising an 11-year-old in addition to everything else you have going on is definitely a lot to juggle, so good luck with that. And Evan, you’ve got your hands full, too, in that regard.

Evan: Yeah — are you done with that Japan story yet?

Denise: I’m done with the Japan story. (Laughs)

Evan: Okay.

Denise: Once again, you can blame — I think it was, again, TotallyFried, or it was someone else on Twitter who pointed me toward that; and I went, “Okay, that’s going to be our tip.”

Evan: Okay, good. I can’t believe you were getting after me for the things I was Skyping you when you were —

Denise: I know, I know.

Evan: Yes, great fun. Yeah. Has certainly lived up to the expectations. I knew this would be a fun conversation with you, Harry, and with you, Stephan. Lots of fun. So great way to spend a Friday afternoon, especially in the summertime. So good times. And it was great to be here.

Denise: Wonderful to see you as always, Evan, and enjoy the rest of your weekend here at the end of the summer. We don’t have any breaks coming up anytime soon. We’ll let you know if we do as the summer winds down. So we’re just going to keep on chugging away. We’re going to keep on posting shows at twit.tv/twil and at youtube.com/thisweekinlaw. If you’ve missed any of our other recent shows, that’s where you’re going to find them. What else? You can watch us on Roku — that’s always a fun way to go — and in iTunes, etc., etc. And if you want to send us just completely face-palm stories that you’d like us to put on the show — (Laughs) — the way to do that would be to send us a tweet. Evan is internetcases and I’m dhowell on Twitter. Or if you have a more lengthy exposition you’d like to give us, head on over to our Facebook or Google+ page, and we’ll chat with you there. Or you could email us. Evan is [email protected]; I’m [email protected]. We love hearing from you however you decide to get in touch with us because really, we couldn’t do the show without you. You give us so many great ideas and suggestions, keep us up to speed on things that we haven’t been paying attention to; so we really, really appreciate all the help. And with that, we’ll go ahead and wrap up this episode of This Week in Law, and we’ll see you next week! Thanks for everything. Take care.

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 1:44:42 — 48.2MB)

1. See my grok conversation about the working requirement for Louisiana mineral servitudes. [↩]

Kinsella on Liberty Podcast, Episode 133.

I appeared on Ernie Hancock’s show for all 3 hours of the July 9, 2014 episode to discuss intellectual property and related issues in detail. We discussed the constitutionality of IP, cryptocurrency/bitcoin, and related matters. This was a followup to the June 18 episode which featured Reed Jessen who was speaking about a way to fight patent trolls, which I called into.

My previous appearances on Ernie’s show: KOL089 | Declare Your Independence with Ernest Hancock radio: Intellectual Property, L. Neil Smith and KOL060 | Guest on Ernest Hancock’s Declare Your Independence radio show: intellectual property and libertarianism (2010).

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 2:19:46 — 48.0MB)

Note: An updated and revised version of this article is included as chap. 23 of Legal Foundations of a Free Society (Houston: Papinian Press, 2023). Text below.

***

“Stephan Kinsella on Libertarian Legal Theory, Self-Ownership and Drug Laws,” interview with Anthony Wile, The Daily Bell (July 20, 2014). Revised version in published as “On Libertarian Legal Theory, Self-Ownership and Drug Laws,” in Legal Foundations of a Free Society (forthcoming 2023). [continue reading…]

Kinsella on Liberty Podcast, Episode 132.

Michael Shanklin passed on to me a variety of questions on libertarian theory and applications for his Voluntary Virtues network. I’ll be a regular guest monthly. Relevant links: Fraud, Restitution, and Retaliation: The Libertarian Approach.

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 57:16 — 61.8MB)

Kinsella on Liberty Podcast, Episode 131.

Jeff Tucker and I discuss the recent announcement by Tesla that it will cease enforcing its patents. Relevant links:

• All Our Patent Are Belong To You, By Elon Musk, CEO, Tesla
• Tucker, Tesla Shock: A Company Favors Competition
• Kinsella, The Patent Defense League and Defensive Patent Pooling

Podcast (kinsella-on-liberty): Play in new window | Download (Duration: 30:09 — 32.2MB)

Kinsella on Liberty Podcast, Episode 130.

From the Bad Quaker podcast with host Ben Stone, Jeff Tucker and I discuss a variety of libertarian issues, including abortion and the like.

Update:  Here is the (lightly edited) text of the email I sent Tucker and Stone a few hours before the podcast, that was alluded to at the end:

There is something I’ve been chewing over in my mind lately that I’ve been thinking about discussing or putting on a podcast, and I’ll briefly mention below, in case you two think this is worth talking about.

It concerns the interrelationship between concepts of aggression, self-ownership, and homesteading of external resources. Basically libertarians sometimes treat aggression as a primary, and then struggle with including trespass to property as a case of it, … so then some of them finally admit that aggression depends on property rights-you need to know who owns an apple before you can tell if someone’s forceful taking of it (or keeping of it) is “aggression or not.” But then you get them turn around and apply property-ownership principles that apply to the apple–like contracts and homesteading–back to one’s body, after all one is a “self-owner” and therefore, “just like” the way you own the apple was by homesteading and you can have a contract to sell it, you also gain ownership of your body by homesteding and you can also sell it (voluntary slavery). I think Walter Block employs a version of this reasoning, and I’ve heard others employ variations of it.

(A similar fallacy is the twin pair of related ideas: if you own something, that implies that you can sell it; and if you sell something, that implies you must own it first. The former idea, which is based on a flawed idea about the origin and nature of property rights and contract theory, is used to justify voluntary slavery; the second, which is based on a flawed understanding of contract theory, is used to justify intellectual property.)

I’ve thought about this of the years, and kept toying in my mind with Rand’s (to my mind original) expression of the non-initiation of force principle. Similar to the way I toyed with self-ownership and finally figured it out due to Hoppe’s insights on this very topic, combined with his singular focus on economic scarcity as the touchstone of property (something Rothbard didn’t do, whcih is why he went astray on IP and a couple other fairly minor issues having to do with contract theory). Rand didn’t do it either, which is why she also was a bit fuzzy, beyond her NAP. What Hoppe made me realize (as I discuss in How We Come To Own Ourselves) is that there is a difference in the basis of property rights in one’s body, and in external resources. It is a difference that is already partially implicit in the elementary formulation of the NAP itself, as Rand and Rothbard formulated it.

The difference is this. it is not homesteading that is primary. It is the objective link–some objective, demonstrable link between the owner/claimant and the resource in dispute (an “intersubjectively ascertainable” link, as Hoppe might say in Kantian terms). The purpose of property rights is to allocate or determine an owner of a disputed resource, in the case of a dispute, so as to avoid conflict and to permit resources in general to be used productively. Thus the allocation rule has to be based on some objective criteria, not on something arbitrary, particularizable, or mere verbal decree–since the latter types of basis for deciding who owns something does not fulfill the function of property rights–of avoiding conflict, since if the rule is inherently arbitrary or unfair or particularizable then we cannot expect the people on the receiving end to respect it, so there will just be confict once more (might makes right; war of all against all). And any number of people could simultaneoulsy verbally claim the resource, so that could never be a good way. It has to be an objective criterion that everyone can see and recognize as objectively connecting one of the claimants to the resource in a way that gives him a superior claim to it. That is the objective link test.

In the case of one’s body, the objective link just is one’s direct control over one’s body–one’s special link to, connection to, one’s intimate relationship to one’s body. Whether you are atheist or theist, you can see this link exists: one either ‘is” one’s body, or “inhabits” one’s body, or is a soul that “drives” one’s body, whatever, in any case, one’s “person” is intimately bound up with a particular body. So, in a dispute between A and B over who owns A’s body, the answer is: A. Not B. The answer B would be slavery, other-ownership, and there is no way to justify a generalized system of other-ownership as this is particularizable and probably arbitrary too.

I would also argue that this is only a presumption. That is, if A is attacking B, B now has the right to use self-defense, which means, to invade A’s body without A’s consent (you could also say, instead, that A is consenting by attacking B, and this is an okay way to put it, but it might stretch the concept of “consent’ a bit much). So, in general, if A and B have a discussion about who owns A’s body, B cannot argue he owns A’s body, “because he is B” (that is particularizable), for example. But B can point to some objective fact in reality to make a distinction, such as: A is attacking, threatening or has attacked and threatened me, which changes the normal default presumption, etc. In other words, the commission of aggression by one of the parties suffices to change the presumption of equal-status of all parties involved. That is to say, self-defense is justified. That is to say, normally A has a set of rights (self-ownership, or more precisely, body-ownership), but he can forfeit or… “alienate” them, by committing aggression. (I discuss some of this in A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability. Also, in Defending Argumentation Ethics: Reply to Murphy & Callahan, explaining how Hoppe’s argumentation ethics is compatible with some people being treated as slaves/means–you just need a good reason.)

 

Note that this is all implied in the elementary formulation of NAP as Rand and Rothbard did it. Saying aggression is impermissible–meaning the unconsented to use of/invasion of the borders of someone else’s body–implicitly recognizes that the person is the owner of his body, just by virtue of it being his body (the objective link of direct control/intimate relationship that Hoppe made more explicit). But it also recognizes that this ownership is only a default presumption, precisely because it implicitly recognizes that defensive force is not prohibited (because the rule itself is specifying that initiatory force is prohibited). By recognizing the legitimacy of defensive force, the rule recognizes that you normally own your body but you can partially or completely forfeit this right, by committing aggression. 

 

And only by committing aggression can you lose rights in your body. This is key. The reason is that if you commit some action X that is not aggression (such as: a speech act like “I promise to be your slave”) then when B tries to use force against your body, it is aggression. For B’s action of domination over A not to be aggression, it would have to be in response to aggression by A. Otherwise, by definition it is initiated force.

 

And this is the problem Walter faces when he argues for voluntary slavery. They want to say that there are two ways you can forfeit or alienate your rights: aggression, and saying certain words. But this does not follow, and is just wrong. A’s saying words to B does not violate B’s rights. It is not aggression. Therefore,  if A decides later not to act as B’s slave, and tries to run away, then if B uses force against A, it is aggression. 

Walter tries to get around this by saying that it’s not aggression since B now owns A’s body. A’s body is B’s property. But this is obviously question-begging since it presupposes the promise to sell was effective. But that is what is in question. Walter does not realize that what contracts are effective depends on whether B has a right to use force against A. He thinks it’s the other way around: that we determine what contract capacity A has, and then this changes the rights landscape.

And the reason he thinks this is his confusion about contracts, as I noted above. He claims to adhere to Rothbard’s title-transfer theory of contract, which argues that contracts are not binding promises at all (as most people think of them), but instead are simply transfers of title to a resource, by an owner. Walter formally agrees with this but then by just asserting that a contract to sell your body is effective, he is basically adopting the “enforceable promises” view through the back door since the end result is the same: specific performance, i.e. body alienability. And the reason he makes this mistake is he assumes that if you own something, you can sell it. But ownership is the right to control, not the right to get rid of the right to control. If A has a better claim over his body than B does, because A has a direct link to his body, then this is true even after A makes a promise to B, since A still maintains direct control over his body even after the promise, and thus still has a better claim to it than B. (I tried in vain to get Walter to see this previously: KOL004 | Interview with Walter Block on Voluntary Slavery.; see aslo KOL095 | Interview with Daniel Rothschild on Children’s Rights, Aggression, Contract Theory, Self-Ownership, Voluntary Slavery, and More.) Block, “Does Trespassing Require Human Action? Rejoinder to Kinsella and Armoutidis an Evictionism”

The objective link idea implies self-ownership results not from homesteading one’s body but from the direct control one has over one’s body. It is impossible to imagine homesteading of one’s body since you have to be self-owner already before you homestead objects. Moreover, homesteading is about the appropriation of unowned resources. But one’s body is not unowned before one becomes a person. If we imagine a fetus or infant that is not yet a “person” in some sense, the moment it becomes a “person” the mom’s property rights in the baby’s body are lost and transfer to the little baby itself. So that means this kind of homesteading is a type of theft. The homesteading model makes no sense for self ownership. That means one never finds oneself as some spirit walking around looking for bodies to homestead, like a ghost possession someone. Rather, one becomes a person already bound up with a particular body and identity. This also means that you never “acquired” your body; you always were your body (or at least: intimately related to it). This is why you cannot “abandon” your body, by verbal decree, which is what the alienabilists assume you can do.

Just as it is impossible to imagine a body-less person, a pre-body person who “homesteads” this unowned body, it is also impossible to imagine an acting human who does not have access to and the ability to control external scarce resources–as Mises points out, all human action employs scarce means. If there are no scarce means, human action–life itself–is inconceivable and impossible. So a self-owning, body-inhabiting actor necessarily also acts in the world by means of controlling scarce resources. Necessarily. It is just that what these resources are in particular, is contingent. It could be anything. and these resources were at one point unowned, and they can be abandoned too. The resources employed become an extension of you interaction with reality–it is how we achieve ends. Thati s why they are “a property of” the person; by using these tools you extend your reach into reality, your control of the future.

So the objective link between a claimant and a human body is the direct control; but the objective link between multiple claimants and a particular external (previously unowned) resource is first use, or original appropriation/homesteading. If there are many claimants to a resource, the one who first used it has the better claim—unless he has sold it to someone else (contract), or he owns restitution to someone else (rectification) because of some previous offense (tort, aggression). The reason contract does apply here and not in the case of the body, is because as noted above the body is owned because of one’s direct control over it which does not change after a promise to be a slave or to “sell” one’s body; but external resources are objects that were previously unowned and that the homesteading agent came to acquire by an explicit act of appropriation combined with a public communication of intent to own instead of to merely temporarily possess (embordering is what does this signaling or public communication function–putting up a border, a fence, a boundary, mixing labor with or transforming the object in a way that makes this clear). In other words, because you can acquire particular scarce resources, you can abandon them. That means you can have contracts to “alienate” them.

(Incidentally previously I toyed with the idea that there might be some sort of natural “bankruptcy” type right, because if you can alienate all your future property, it’s tantamount to slavery since the person you sell everything to could deprive you of food and kill you. The formulation above sort of supports this: becaues any human actor has to employ some means. so he has no right to any particular resources but he has to have some rights to some resources, which might place limits on a person’s ability to alienate all of his future owned resources–which is sort of what the bankruptcy law gets at. But I am not sure about this.)

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Kinsella on Liberty Podcast, Episode 129.

This is a lesson/lecture I presented to a group of “Upper Elementary” Montessori students today at my son’s school, The Post Oak School (Upper El includes 4th, 5th, and 6th grade students, and there were also a few third graders visiting from lower el, who are moving up next year). The students (25 or 30 or so) sat in a group at my feet, and were polite and interested the whole time. They asked many very intelligent and fun questions. I tried not to get too complicated, but did speak in fairly frank and sophisticated terms, tried not to talk down to them or dumb the talk down too much, and almost all of them hung in there till the end. The original plan was to speak for 40 or so minutes then take questions for another 15 or so, but we ended up going about an hour and 7 minutes, and then during lunch I had throng of students throwing more questions at me for another half hour. What amazing students; what an amazing school and educational approach. (This is one reason I love the Montessori approach; see my Montessori, Peace, and Libertarianism.) I included here only the main talk and Q&A, not the lunch banter. (An article prepared by 6th graders in the class, describing the lecture, appears in the first couple of pages of this issue of the class newsletter.)

I think this talk is suitable for kids from ages 9 to 16 or so.

The notes I used and handed out are reproduced below, with a few links added.

For more background on these topics, see the links below, as well as my short article Legislation and Law in a Free Society, adapted from my 1995 JLS article Legislation and the Discovery of Law in a Free Society, which contains detailed references; and my more detailed speech The (State’s) Corruption of (Private) Law, from the 2012 Annual Meeting of the Property and Freedom Society.

Update: Some people have asked me for further recommended readings, in legal history, etc. Unfortunately my library is packed away in boxes now for a renovation so I cannot peruse my legal theory/history titles, but from memory and some other notes I have, here are some suggested readings related to the talk. Some of my own personal favorites first:

• Bruno Leoni, Freedom and the Law
• Watson, Alan, The Importance of “Nutshells”
• Herman, Shael, The Louisiana Civil Code: A European Legacy for the United States
• Giovanni Sartori, Liberty and Law
• Alan Watson, Roman Law and Comparative Law
• The Story of Law, by John M. Zane (I haven’t finished it yet but liked what read so far) (also online)
• Arthur Hogue, The Origins of the Common Law
  
• See also my post Book Recommendations: Private, International, and Common Law; Legal Theory, and also: The Greatest Libertarian Books and  Other Top Ten Lists of Libertarian Books.

For some others:

• A History of American Law, 2d. ed., 1985, Lawrence M. Friedman
• Trakman, Leon E., The Law Merchant: The Evolution of Commercial Law
• Oliver Wendell Holmes, The Common Law
• Buckland, W.W. & Arnold D. McNair, Roman Law and Common Law: A Comparison in Outline
• The Bramble Bush: On Our Law and Its Study, by Karl N. Llewellyn
• Jhering, Dr. Rudolph von, The Struggle for Law
• Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition. “The latter is one of the greatest books (not just of law, but of any subject) I’ve ever read; and the former is full of interesting argument and facts. Berman also has a sequel, published a few years ago, that carries the story through the Protestant Reformation, but I haven’t read it yet. I venture to recommend it, sight unseen, on the strength of my admiration of its predecessor.” (Thanks to Robert Higgs.)
• Alan Watson, The Making of the Civil Law
• Rosalyn Higgins: Problems and Process: International Law and How We Use It
• Giovanni Sartori, Democratic Theory
• Merryman, John Henry, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 2d. ed. 1985 (book reviews by: Mary Ann Glendon, Robert O. Homes, Jr., Homer, A. M. Honore, and A.T. von Mehren; also Robert A. Pascal (diff book))
• See also the sources listed in Tom W. Bell’s discussion of “polycentric law”

Update 2:

I have no doubt I mangled a few historical and other details in my somewhat extemporaneous exposition. For example, here is one constructive criticism I received:

I am a satisfied subscriber to your KOL podcast, which I enjoy very much.  I just listened to episode 129 wherein you address a group of elementary-school students.  It really made me realize how intellectually void was the time I served in my local government school.

Anyway, around the 46 minute mark you got your definitions of robbery and burglary reversed.  Hopefully the kids weren’t taking notes.

Yep. He’s right. I got robbery and burglary backwards. Mea culpa!
[continue reading…]

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Kinsella on Liberty Podcast, Episode 128.

From Jan. 2012, an interview by Peter Mac from The Peter Mac Show about the Stop Online Piracy Act (SOPA).

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Kinsella on Liberty Podcast, Episode 127.

From December 2011, an interview by Stefan Molyneux for his Freedomain Radio program about the evil Stop Online Piracy Act, or SOPA. We discussed the First Amendment violations of and other problems with SOPA. 

Moly’s original video was taken down when he was deplatformed.

Youtube transcript and Grok shownotes below.

Grok shownotes:

Episode Overview: SOPA, Piracy, and Internet Freedom

In this episode of Freedomain Radio, host Stefan Molyneux interviews intellectual property critic Stephan Kinsella about the Stop Online Piracy Act (SOPA) and broader issues surrounding copyright enforcement. Kinsella provides an overview of SOPA’s status, noting its delay until January amid widespread opposition, and criticizes it as a tool for big media industries like the RIAA and MPAA to ratchet up penalties for infringement. He argues that copyright is a government-granted monopoly incompatible with free speech and human liberty, potentially even unconstitutional under the First Amendment. The discussion highlights the tension between copyright’s censorship effects and the internet’s role as a “copying machine,” drawing parallels to the drug war’s futile escalation.

Historical Context and DMCA Critique

Kinsella traces copyright’s evolution, referencing the Digital Millennium Copyright Act (DMCA) from the 1990s, which included safe harbor provisions that inadvertently allowed the internet to flourish by shielding ISPs and platforms from liability for user actions. However, he points out abuses like takedown notices, exemplified by Uri Geller’s attempts to remove embarrassing footage despite lacking rights. Molyneux concurs, likening it to suing a road maker for a bad driver, and notes how risk-averse platforms side with copyright holders, stifling fair use. The conversation positions SOPA as an unnecessary layer atop the DMCA, potentially breaking DNS protocols and enabling ex parte shutdowns without due process.

Impacts of SOPA and Technological Workarounds

The hosts discuss SOPA’s potential to create “permanent pirate communities” by driving hardcore users offshore with encryption and tools like DeSOPA or MafiaFire add-ons, while inconveniencing law-abiding citizens and chilling speech. Kinsella warns of broader state control, using IP enforcement as a pretext alongside child pornography or terrorism fears, and predicts SOPA’s unconstitutionality due to prior restraint issues. Molyneux adds that it could exacerbate civil unrest by suppressing dissent during economic turmoil, and both criticize the “dinosaur mentality” of media industries clinging to outdated models, ignoring studies showing pirates often buy more content.

Alternative Business Models and Creative Incentives

Exploring life without strict copyright, the duo highlights successful freemium approaches, such as comedian Louis CK earning $1 million in days from a $5 DRM-free video release, or Molyneux’s own experience freeing his books and thriving on donations. They advocate tipping-based systems for artists, akin to waiters, and suggest authors like J.K. Rowling could profit via pledges or endorsements. Molyneux emphasizes how low barriers to digital donations enable voluntary support, countering claims of market failure, while Kinsella mocks government-funded innovation panels as bureaucratic absurdities that could cost trillions.

Government-Media Alignment and Economic Ramifications

The episode delves into motivations behind SOPA, with Kinsella attributing it to media bribery of politicians and state desires for internet control, echoing historical monopolies like the Statute of Anne. Molyneux speculates on an alignment where Hollywood’s reliance on government protection ensures pro-state narratives in media, avoiding anti-government films amid social unrest. They warn of job losses as IT firms flee U.S. jurisdiction and investment chills, framing SOPA as rent-seeking with visible gains for media but invisible societal costs.

Molyneux’s Alignment with Kinsella’s Anti-IP Views

Throughout the discussion, Molyneux shows strong alignment with Kinsella’s anti-IP stance, though he stops short of explicitly calling for the abolition of patent and copyright laws. He actively supports Kinsella’s critiques by sharing personal anecdotes, such as releasing his books for free and advocating tipping models, implying copyright hinders better systems. Molyneux counters pro-IP arguments—like diminished creativity without controls—by citing billions of unpaid blogs as evidence against underproduction, and he ridicules piracy loss calculations as “insane.” His libertarian framing of SOPA as government overreach and enthusiasm for freemium economies indicate he views IP as unnecessary and harmful, consistent with abolitionist views, but without a direct statement like “abolish copyright.” This implicit agreement is evident in his positive engagement and lack of pushback against Kinsella’s core arguments.

Youtube transcript (cleaned up by Grok):

Podcast Transcript: KOL127 | Freedomain Radio: SOPA, Piracy, Censorship, Internet

Introduction and Lighthearted Banter

0:00

Stefan Molyneux: All right. Hi, everybody. It’s Stefan Molyneux from Freedomain Radio. I have, I guess, the original Steph. I would be the Stef version B, the revision, the beta. This is Stephan Kinsella, who’s going to be talking to us about SOAP, if I understand this rightly. The need for more personal hygiene among libertarians. Did I get that correct?

0:14

Stephan Kinsella: That is not what I prepared for today, Steph.

0:20

Stefan Molyneux: So, you haven’t showered. That’s what you’re saying. Okay. So, SOPA. I did some writing on it and some reading on it, and it seems alarming in a way that all these initiatives seem alarming. The only way that I can see what is most alarming about it is, as usual, by what the government says it’s never going to be used for. Whatever the government says things are never going to be used for, I assume that’s immediately what it’s going to start being used for. But I wonder if you could go over what you find most heinous and deleterious about this. Is it imminent? It’s coming up for a vote pretty soon.

Overview and Status of SOPA Legislation

0:48

Stephan Kinsella: Well, I just heard today or yesterday the most recent news about the status of this bill, which is apparently it is now delayed until January. Last Friday, everyone was worried it was going to be pushed through by the Republicans and, I guess, the Democrats too. Then they delayed it and said it was delayed until January. On Monday, they said, well, we’re going to take it up again on Wednesday, which is today. Then they finally said, no, we’re going to delay till next year. So, I think we have a little reprieve. But these guys are relentless. The big media, you know, the music industry, the RIAA, the MPAA, the software industries, they are relentless in pressuring Congress to ratchet up the penalties for copyright infringement. I don’t think they’re going to give up. So, I think it’s a matter of time. Maybe it’ll be watered down a little bit.

Background on Copyright and SOPA

1:39

Stephan Kinsella: Let me give you a little background on what’s going on here. As you know, I’m a strong opponent of copyright. I think it’s basically a government grant of monopoly privilege, and it is inconsistent with human liberty and human rights. In fact, I think there’s a good argument that it’s inconsistent with the First Amendment, with free speech rights, because it basically prevents you from publishing or saying certain things. You could even argue that the copyright clause in the US Constitution, which was in 1789, when the Constitution came out, was superseded by the Bill of Rights in 1791, two years later. So, if there’s an inconsistency between free speech and the censorship that’s wrought by copyright, then the later provision would have to prevail. That’s an argument that I haven’t heard many people take up, but I do think you could argue that. Most people think that the copyright clause is legitimate and the free speech clause is legitimate, and they recognize there’s a tension. So, they say we have to balance these things.

2:40

Stephan Kinsella: So, you have this unprincipled approach, which you and I hear all the time, that the government or the courts have to balance these interests. We have to balance the incentive of copyright and the creativity that it inspires, allegedly, with free speech rights. So, there’s a balancing effect. We’ve had copyright for a long time, and there is tension. Then, in the ’90s, this thing called the DMCA, the Digital Millennium Copyright Act, was passed, which was a ratcheting up of the power of copyright in the digital age. Luckily, at the time, the proponents of this, I think, did not realize the effect of the safe harbor provisions that some of the opponents insisted be put in, because it basically allowed the internet to flourish.

Impact of DMCA Safe Harbor Provisions

3:29

Stephan Kinsella: If those safe harbor provisions had not been put in, the internet may not have taken off. There may not have been a YouTube, a Twitter, or a Facebook. The safe harbor provision basically shields a publisher or an ISP from liability for the allegedly copyright-infringing or defamatory actions of a user who posts on that site, because otherwise, they might be liable for that. Then, the person who claims they’re a victim of copyright infringement or defamation could go after the website or the host or the ISP.

4:09

Stefan Molyneux: Right? It’s like you wouldn’t sue the road maker for a bad driver.

4:15

Stephan Kinsella: Exactly. So, this safe harbor provision is why we have now this kind of arcane system of DMCA takedown notices, which is still not the best system, but at least it’s a procedure. There’s some due process. There’s some understanding of what’s going on. It can be abused, and it is abused regularly because if you get a site taken down with a DMCA takedown notice and you’re wrong about the copyright claim, there’s really not much that the victim of this can do if their video, media, or blog is shut down. But at least there is some system. Instead of trying to fix the problems with this DMCA, they’re adding yet another layer on.

Examples of DMCA Abuse

4:52

Stephan Kinsella: I wanted to mention too that I was reading that Uri Geller, a psychic charlatan from the 1970s, was on The Tonight Show and was pretty much humiliated by having all his tricks exposed by Johnny Carson. He actually asked for this stuff to be taken down, though he has no copyright holdings over it, and the site owners agreed. That’s just because, you know, who’s going to stand on principle and face years of this sort of back-and-forth?

5:15

Stefan Molyneux: Yeah, legally he actually had no right because he probably signed a waiver, and if you film someone, the copyright is in the person who films it, not the person being filmed.

5:27

Stephan Kinsella: But basically, if you threaten to sue someone, then they know there’s a chance they might be liable. If they just respond the way the DMCA says they should respond, then they have the safe harbor of liability protection. So, they take it down out of risk aversion. A lot of times, the other side can respond with a response. But if your response is fair use, which it often is—like, well, yeah, technically this looks like it’s a use of someone’s copyrighted material, but I have a fair use claim—well, fair use is one of these nebulous, vague things that has to be decided by a court, usually. So, the ISP or YouTube is going to just say, “Well, how do I know if it’s fair use or not? I want to keep my safe harbor. I want to keep my limitation of liability.” So, it tends to cause them to have a hair-trigger in siding with the rights holders, the copyright holders. You’re exactly right about that.

Layering New Laws on Top of DMCA

6:27

Stefan Molyneux: So, you’re saying that they’re adding more layers on at the moment. Like all laws, they just grow and grow. It’s like stalagmites. They just grow and grow. So, they don’t sweep away and start with a clean slate. Is this being layered on top of the Millennium Act?

6:40

Stephan Kinsella: Yes, layered on top of that and some recent acts which penalized streaming. But basically, about two or three years ago, there was an act called the PRO-IP Act, which they tried, and they didn’t quite succeed. Then, it was succeeded by one called the COICA, Combating Online Infringement and Counterfeits Act. COICA went down to defeat about a year ago, and now we have the son of COICA, which is PIPA. We call it the son of COICA, the Protect IP Act in the House, and the Senate version is called SOPA, the Stop Online Piracy Act.

SOPA’s Attempt to Enforce Copyright

7:13

Stephan Kinsella: So, basically, all these laws are an attempt to enforce copyright in the form of stopping piracy, which, you know, they refer to using information and copying information on the internet as piracy. You have a tension here because you have the internet, which is the world’s greatest copying machine. Once ideas get out there, information gets out there, it’s not going to be not copied and not used. You have the idea of copyright, which is to stop people from copying, learning, imitating, emulating, remixing, and using and learning from others. So, of course, you have tension. It’s like the drug war stuff because you cannot stop people from doing this, especially with the increasingly sophisticated encryption techniques people have, BitTorrenting techniques, and these kinds of things. So, you have to escalate and ratchet up the penalties, just like the drug war, right? I mean, life in prison or even execution for fairly minor drug crimes in a desperate attempt to enforce something that is inherently immoral and impractical in the copyright sense.

Examples of Harsh Copyright Penalties

8:28

Stephan Kinsella: I just read something today about a guy—now this is without even SOPA being passed. There was a guy that was sentenced to a year in prison for uploading a copy of the Wolverine movie onto the internet. He’s in jail for a year, even though the movie made $273 million, and, you know, it’s just insane. It’s only going to get worse if SOPA passes.

8:56

Stefan Molyneux: Well, of course, there are three categories of people covered by most laws. There are the people who would never do it and don’t even know what it is, and they’re not going to be affected. There are people sort of in the middle who have a vague idea: “Oh, I’m watching something on YouTube. I don’t know, maybe it is, maybe it isn’t,” or “I’m uploading something, a mashup or something like that.” Those people will probably be scared off. But, of course, the reality is, just like the drug war, the hardcore people are only going to find it more valuable to provide whatever service when there’s more restriction on what they can provide. The value of what they can provide goes up, just like the drug war, like any other thing. Those people are just going to move their stuff offshore. They’re going to put encryptions. What they’re doing is they’re guaranteeing the emergence of permanent pirate communities. Wouldn’t you say that’s fair?

Emergence of Pirate Communities and Technological Workarounds

9:36

Stephan Kinsella: 100% true. In fact, I read just today about a new Firefox add-on called DeSOPA, which is already out there and is ready to go into effect as soon as SOPA comes into effect. What it will do is, one of the bad things SOPA will do is it will basically allow—well, there are different versions of it—but it will allow the Attorney General or private citizens, in some versions of the law, to get a site shut down. In other words, a private citizen or the Attorney General can either send a letter with this sort of safe harbor threat that we talked about, or go through the court, but a court that doesn’t invite the other party. So, it’s ex parte, we call it. In other words, it’s not adversarial. There’s no due process. It’s basically a unilateral order to a third party like Google or YouTube, telling them you have to not give a link anymore to this website or to all the parts of the infrastructure of the internet that give the DNS names. You have to remove this from your database. So, they will literally break the internet’s DNS protocol.

10:43

Stephan Kinsella: So, if you type in, you know, freedomainradio.com, that’s text that maps onto this IP address. No one knows your IP address. You probably don’t even know it. But there’s a DNS that maps it to that. Well, if the government comes in and breaks that mapping, people can’t find you anymore. So, there’s this program called DeSOPA, and what it will do is, if you type in freedomainradio.com and Firefox can’t find it because it can detect that the government has had it taken down, it’ll just go to this database in Europe somewhere or somewhere overseas, find the right mapping address, and take you right to it. Of course, the pirates and even the real terrorists, people like this, they’re going to easily find a way around this stuff. So, it’s only going to inconvenience law-abiding citizens. It’s only going to give more and more tools to the state to hold over people’s heads as a threat that, you know, here’s yet another law you’ve broken, so cooperate with us on this or whatever. I agree 100% with you.

11:47

Stefan Molyneux: Well, I think there’s an add-on for Firefox called MafiaFire or something like that, where sites that have been taken down, you get redirected to backup sites. It’s the WikiLeaks thing, right? These people, they learn nothing.

Motivations Behind SOPA and Copyright Enforcement

11:59

Stefan Molyneux: Do you think it’s being driven by what always strikes me about piracy issues or questions is that people say, “We’ve had 3 million illegal downloads of our movies. Okay, so at, you know, $10 a movie, that’s $30 million in lost revenue,” which to me is a completely insane calculation because it assumes that if the people weren’t able to download it, they would have immediately bought it. That just doesn’t seem to me to be the case at all. I don’t know if any studies have been done on that, but I know that in England, they found that people who downloaded spend more money than people who didn’t download, and it’s a way of sampling or previewing music, and then you go out and buy the album or support the artist however you like. I think it was Coldplay who released their last album on a sort of pay-what-you-want basis, but it seems like there’s just this real old-school mentality that people are stealing from us, and we just have to close the gates. Where do you think the mentality is coming from that is really driving this? Is it merely punitive? Is there a fantasy of riches if it goes through, or what’s driving it?

13:04

Stephan Kinsella: I think it’s a combination. It’s an intersection of a lot of different trends here. On the average person’s side, they’ve been taught this idea that property rights are good, and, of course, other types of IP property rights are good, like intellectual property. So, they hear “piracy,” and the problem is, in this debate, even most of the opponents of SOPA will concede the ground. They will say, “Well, we admit that piracy is a problem, but this isn’t the right solution.” Well, once they say that, in my opinion, they’ve lost the argument because once you admit that there’s a right being violated, sure, there are costs to different enforcement measures, but you can’t really object to them on principle grounds. It may cost too much, but if there’s theft going on, we have to try to stop it. So, I think the average person has been basically brainwashed or propagandized with this false idea that intellectual property is a type of property.

14:05

Stephan Kinsella: Now, on the side of the MPAA and the RIAA, they’re just trying to hold on to a dying business model and extract every bit of profit that they can out of it. If you read back in the history, every time there’s a technological advance, they freak out. They freaked out about LPs. They thought it would ruin live performances. They freaked out about radio. They freaked out about live television broadcasts. They freaked out about the VCR, as you remember. They freaked out about CDs, digital audio tapes. They freak out every time, and every generation, their profits get better and better. There have been studies, even recently, showing that, yeah, the people that tend to pirate are the ones that buy even more. Even if you could show that someone’s profit is less than it would be absent an absolute ironclad fascist monopoly enforced by a strong state, are they really entitled to that?

Alternative Business Models: Louis CK Example

14:59

Stephan Kinsella: This guy, Louis CK, this popular US comedian, the other day released his comedy tour video on his own website for $5, DRM-free. He said, “I know people can pirate this and torrent it, but here it is for you. Do what you want with it.” He said, “It cost me $30,000 to have the video made and $200,000 to produce the show, and I’m hoping to make enough.” He made like a million dollars in about seven days.

15:25

Stefan Molyneux: Now, I’m just going to cry for a moment, just to say, as a podcaster, but I’ll be fine. Let me just get a Kleenex here. Maybe he would have made two million if he had done the regular deal, and the studio would have made three million on top of it, and the consumers would have paid $19.99 and couldn’t have used it on their iPod, but they could use it on one device and had to pay for it twice sometimes. It was a win-win for everyone except for the middleman, these copyright-entrenched studios and media industries.

15:55

Stephan Kinsella: Yeah, I agree. Piracy is, of course—the most recent example was just a couple of days ago. The new Batman movie is coming out next July, The Dark Knight Rises or something like that, and Warner Brothers or whoever is showing the trailer in theaters now before movies. Someone pirated the trailer, and then they put that on their website, and Warner Brothers sent a takedown notice, threatening to put the guy in jail who just had a link to it on his site because some of these laws actually criminalize a link because you’re providing an access tool, they call it, to the content. SOPA will make this even worse. What makes no sense is that no one’s going to pay for a trailer. This is advertising the movie. It makes no sense whatsoever.

16:42

Stephan Kinsella: So, I think it’s a dinosaur mentality that these guys have.

16:48

Stefan Molyneux: Well, my guess is that they’re probably getting some concessions out of the movie theaters in return for the trailer, and they feel that that may call—I don’t know. But if you go to the movie, you’re going to see the trailer anyway. I think art should be—my one of my first jobs was as a waiter where I lived on tips, and now, 30 years later, I find myself once more living on tips. It works. It’s the weird thing. It works in restaurants, and it works for podcasting. There’s a $300 billion-a-year economy that is freemium, as they call it, right? Free plus premium. My belief is that art should be—artists should be waiters. We all start out as waiters anyway, the actors and artists and all that. It should be tipping-based. You should receive the value for free and then tip. I can tell people that that works. I can tell you that it works. It works better than charging people for stuff.

Challenges of Shifting Business Models

17:34

Stefan Molyneux: But it’s a hard thing to let go of. I had to let go of a couple of years ago. I just let all my books go out for free. It’s a hard thing to do because you grow up with that mentality.

17:47

Stephan Kinsella: That’s true. I often get asked the question, “Well, if you don’t have copyright, how could you sell a book or sell a movie or sell a video or a song?” Not having copyright doesn’t prevent you from—I mean, Louis CK actually sold, you know, he had competition potentially, but he sold it anyway. He was the first one there, and people knew he was the reliable source because he produced it. It was a reasonable price, and he had no middleman. So, he made his money back in two days, and then he’s got pure profit now. People understand that if they like something and want more of it, they’ve got to throw some coin at it. Everybody gets that much. I think there’s some of that, too.

Innovation Without Copyright

18:26

Stephan Kinsella: I also think that when we stop being so reliant upon the business models that have grown up around the assumption that there’s copyright and copyright enforcement, people will become even more creative. For example, let’s say J.K. Rowling, who wrote the seven Harry Potter books. I don’t know if in a copyright-free world she would be the second-richest woman in Britain, worth a hundred million pounds, but she could have easily gotten an audience with the first two or three books and found a way to say, “Listen, I’ve got books four, five, six, and seven written. I’ll release them when I get pledges from a million subscribers, and then I will agree to endorse the first guy who makes a movie that pays me a fee to consult on the movie, and this will be the official movie.” There are ways you can profit from your reputation and your association with what you’ve created.

19:27

Stefan Molyneux: Also, all of this stuff arose at a time where if you consumed something for free and then you wanted to donate to the author, you had to write out a check, get a stamp, and go down to the post office. It was quite arduous to give people money for value received. But now, it’s like two clicks, and you’re done. The barrier to donations is much lower.

19:56

Stephan Kinsella: Yeah, I agree. Especially if you don’t go with the business model that the early movie and music industry did, where we had DRM and all this stuff. Just release it DRM-free. People are going to pirate it anyway, so give it to consumers the way they want it. These are the guys that are actually paying you. Why do you want to alienate the people and basically threaten to sue them? Say, “I’m not giving you ownership of this. I’m just giving you a license.” You’ve heard about these stories about the NFL threatening to sue churches that were showing the Super Bowl because the televisions were greater than 55 inches in diagonal length because, literally, there’s some statute or regulation that says 55 is as much as you can go. It’s crazy.

20:44

Stefan Molyneux: Well, those guys place an unwanted tax of about a hundred bucks a year on every US subscriber, even if they don’t watch. They’re just a bunch of predatory maniacs in the sports world.

Canadian Copyright Tax Example

20:55

Stefan Molyneux: In Canada, you have something similar with when digital audio tapes came out. The Canadian government slapped a tax on every blank tape based upon the idea that a certain percentage of these will be used to siphon away what could be sold normally with CDs. At least here, we’re not there yet. That’s like a type of prior restraint, like we’re assuming—it’s continued into the digital age. In Canada, they’ve slapped a tax on every form of media that can store MP3s or videos. The artists all went to the government and said, “Oh, we’re losing so much money.” Of course, they get grants from the government, but let’s leave that aside and say, “Oh, we’re losing so much money.” So, you need to tax all this media, and then you’re going to put that into a fund, which then gets paid out to artists on some ridiculous calculated basis. Of course, the money never went to the artists. They got, like, three pennies at a time. But what it did was it said to every single Canadian, “You can now download everything that you want. The floodgates have opened because you’re paying this tax, and that is now carte blanche to download and copy, and you’ve paid. So, go to town, right?”

22:11

Stephan Kinsella: That might be a better solution if they really would let you do that. But I have a feeling they’re going to crack down on the other. I think they’re actually trying to really ratchet up Canadian copyright law as we speak, the Conservative government there.

Proposed Government-Funded Alternatives to Copyright

22:22

Stephan Kinsella: I don’t know, you may be familiar with this, but there have even been some allegedly libertarian and free-market economist types in the US who, because they buy into this mentality of intellectual property, at least the utilitarian idea that we need to have the government grant these—in other words, we’re going to have an underproduction of artistic works, novels, movies, creative works, and inventions if the government doesn’t come in and solve this horrible market failure of the free market. Some of these guys have said, “Well, we agree that there are problems with the copyright law, and we agree there are problems with the patent law.” So, some of them have proposed augmenting or replacing the copyright and patent systems with a system where the government takes taxpayer dollars, gives it to a panel of experts appointed by the government, of course, who dole out rewards at the end of the year or each season of measuring people’s output.

23:28

Stephan Kinsella: So, people will come to this panel and say, “Hey, I just wrote a novel. Isn’t it great? I think I deserve $100,000.” Or, “I just came up with a new mousetrap. I think it’s really cool. I think I deserve a million dollars because, after all, I spent $900,000 in my garage over the last 17 years tinkering with it. So, I’ve got to recoup my cost, right?” Literally, one of them proposed a $30 billion fund for artistic works. Another proposed $80 billion just for medical innovations. Now, that’s just medical, but if you imagine the different fields of technology that patents cover, medical is just one narrow slice of it. So, if you extrapolate outwards, you’re talking 1, 2, 3, 10, 20 trillion dollars a year that these guys have in mind as a system to incentivize innovation and creativity because they have fallen prey to this crazy idea that there’s basically market failure, that without the state, we don’t have enough innovation or creativity.

24:41

Stefan Molyneux: Yeah, everybody knows that bureaucrats who have no interest in the profitability or loss of an item are much better at judging its business value than entrepreneurs or investors who actually have their own money in the game. It’s insane. But they believe in the public goods problem. They believe in market failure. So, they have no real intellectual defense against the argument that, well, you know, we can always have more. We don’t have enough innovation right now. We have an underproduction of innovation on the market.

Government and Media Alignment Concerns

24:58

Stefan Molyneux: I’d like to ask you a theoretical question. I don’t think there’s any way to prove or disprove it, but it seems like there’s an alignment of interest between the government and Hollywood insofar as you very rarely see an anti-government film or an anti-law film or whatever. You may see sort of crooked cops or whatever, but they always get replaced by good cops, like the Good King at the end of Macbeth. But it would seem to me that if I were running the government, put on my sort of cornered hat of infinite evil, I would really want the media on my side. I would really want the writers and producers and all that to be beholden to me so that I would not have to worry about critical messages, particularly at a time of significant social unrest such as the US is going through. Do you think there’s anything like that going on? In terms of the timing, I do.

25:40

Stephan Kinsella: I think—well, big media’s interest in this is obvious. They want to use the state to keep their monopoly as long as they can. This is exactly what happened in the origins of the Copyright Act in the 1600s or 1700s, the Statute of Anne in 1710. The monopoly was given to—what happened was the earlier monopolies that were given to the censoring guilds, the Stationers’ Guild, were fading out, and so the printers wanted to keep their monopoly. They petitioned the state, and the state said, “Well, we agree, but we’ll give it to the authors instead.” So, they sort of undercut what they wanted, but it ended up going to the printers and the publishers anyway because of the system, because the authors have to go to the publishers. I think the same thing’s happening now. They are going to the state, trying to keep their monopoly going as long as they can.

26:44

Stephan Kinsella: From the state’s point of view, the state is doing it in part to get bribed, basically, by these guys. They get tons of contributions. That’s why they’re fighting so hard for this. I think the guy that sponsored this, SOPA, was Lamar Smith, a Republican from Texas. Now, Texas, if anything, has high-tech industries like Dell and Compaq and even some Apple plants and things like this. They’re pretty much against this. We don’t have Hollywood here in Texas, so why would Lamar Smith be doing this? There’s got to be some graft and bribery going on here. But, of course, I think also the state can use this as a method of control.

The Internet as a Tool for Freedom and State Control

27:18

Stephan Kinsella: I’m sure you have a similar feeling. The internet, I believe, is one of the greatest tools of freedom of all time and one of the greatest weapons that we have against the state. Because it’s communication, it’s learning, it’s association. Now, of course, technology can be used by the state too. I think the state hates and fears the internet and the freedom that they inadvertently allowed to happen with the way it happened with the safe harbor provisions they inadvertently let slip into the DMCA. So, they are using every chance they can to find a way to come in and shut down, have a kill switch on people that they don’t like, or to have surveillance. They do it in the name of child pornography. They do it in the name of terrorism. They do it in the name of intellectual property enforcement now. So, I think they’re using the media industry as tools, dupes in a way, to assert more and more control at the same time that they’re criticizing China and Egypt and others for having restrictive policies of controls on the internet.

28:33

Stefan Molyneux: Yeah, it is, again, I think really committed people are going to continue, but there are lots of people out there who are going to shy away from this. It’s the well-known chilling effect of, “Well, I don’t really know what the law is, and it’s really complicated, so maybe I’ll just blog about my cooking or something like that.” Of course, the other thing too is that people say, “Well, if there’s no intellectual property controls or rights, then there’ll be a diminishment of creative work.” It doesn’t explain something as simple as the billions of blogs around the world. Most people don’t even make spare change out of them, if anything. Their work’s entirely copyright-free for the most part. There’s millions of people writing down their thoughts every day.

29:13

Stephan Kinsella: In fact, most of the people that criticize it, they’re commenting on someone’s blog for free, and they’re spending their time to make a comment. They’re not getting paid for it. So, why are they even doing it? No, I agree completely.

Constitutional Concerns and Potential Challenges to SOPA

29:25

Stephan Kinsella: The one good thing about this, the one silver lining, is that it seems pretty clear that SOPA will be unconstitutional. I think if they do enact it, it will be struck down in a year or two as being unconstitutional. I hope so.

29:38

Stefan Molyneux: You mean on First Amendment grounds?

29:44

Stephan Kinsella: Yeah, because under US law anyway—this is the US provision—most other countries are really worried about this because it would allow the US, because the US has a strange stranglehold on the entire DNS system because of the way the internet arose. They would try to use that to mess with the infrastructure of the internet, which could potentially disrupt the internet in other countries. The law asserts jurisdiction over foreign companies, like ISPs in other countries, on the grounds that they have what’s called in rem presence in the US because they’re on the internet, basically. So, a lot of other countries are starting to get riled up about this American imperialism, basically.

30:31

Stephan Kinsella: But normally, under US law in the Constitution, when there’s a law that would prevent some kind of speech or chill speech—and this clearly would, without even a court hearing giving the other side a chance to reply—then there’s really no due process. That’s called prior restraint. I think it’s going to be a pretty easy knockdown for the court. I wouldn’t be surprised if it gets struck down 9 to 0. Which makes it even more strange that Congress would rush to put it through. I personally think every single member of Congress that votes for this should be impeached because they’re voting for something that is blatantly unconstitutional, and they’re supposed to uphold the Constitution.

Political Timing and Social Unrest

31:13

Stefan Molyneux: Well, part of me says that if they feel they can get away with it for a year or two, I think it’s probably fairly clear that the next year or two is kind of a make-or-break time in American politics with the deficit and all that. So, I think that they’re probably imagining that there’s going to be a peak in civil unrest over the next year or two, and it’s like, “Well, let’s just get it in now, and we’ll deal with it later,” and then Obama or whoever can extend it under some martial law provision or whatever.

31:41

Stephan Kinsella: Yeah, I know. Or there’ll be enough civil unrest that people will say, “Well, we don’t want to, you know, let’s keep our clamps down,” and they’ll just find some way to extend it.

Public Opposition and Economic Impacts

31:46

Stefan Molyneux: Yeah, there has been a heroic uprising on the internet, surprising a whole variety. If you look at the demographics of the people that oppose it, all the young people oppose this. The Democrats tend to oppose it more than Republicans. Technology-savvy people oppose it manifestly, overwhelmingly. So, the word is out there. It’s been coming from all quarters, the EFF and other groups. I think that the congressmen that have been supporting this are pretty much aware now that they’re voting for something that 70–80% of the country is against. But the problem is, it’s not strong opposition on a widespread basis because people don’t understand this stuff. It’s arcane, and unlike the drug war, for example, the drug war is eventually going to fade away, or at least marijuana, because people know that you’re not really hurting anybody. But people have been fed this propaganda that IP is a property right, so they have the cover of property rights.

32:51

Stephan Kinsella: So, in a way, this type of provision is more insidious than the Patriot Act or even war or even the drug war because it goes under the cover of property rights, which we support.

33:05

Stefan Molyneux: Right, and of course, it’s going to drive a lot of jobs overseas. People are just going to take all of their IT infrastructure and move it as far away from US jurisdiction as possible, and it’s going to chill investment into the IT sector. But, again, these are all soft losses that are impossible to trace months or years down the road, whereas the immediate benefits of scaring people into not “stealing” from giant media—that’s an immediate hit that you can say you’ve really done something. It’s that usual thing of visible gains and invisible losses that creates all of those lopsided rent-seeking incentives of state action.

Challenges to Enforcing SOPA

33:34

Stephan Kinsella: Yeah, but luckily, I’m hopeful that the state will be unable to implement this, even if they pass it. Like I mentioned, you already have tools like this DeSOPA plugin for Firefox and the—what’s it—MafiaFire you mentioned. By the way, I think the law actually outlaws things like DeSOPA because, just like the DMCA outlawed what they call anti-circumvention technology—in other words, it outlawed owning a piece of hardware or equipment that you could use to decrypt an encrypted file, even if you have the right to decrypt it because you have a fair use right. Even if you weren’t going to use it for that, just owning this piece of hardware. The problem is, every computer can do this. So, theoretically, the DMCA already outlaws every computer in the world. They just don’t want to enforce it that way yet. Likewise, SOPA will outlaw anti-circumvention procedures like the DeSOPA procedure, but I don’t think they can actually stop it. So, I’m hopeful that they will be ineffective in enforcing this if they get it passed, but maybe they won’t pass it. Maybe they’ll pass something really watered down.

Closing and Upcoming Projects

34:48

Stefan Molyneux: Well, I guess we can hope. Just on a slight aside or to an end note, do you have any projects or speaking engagements coming up? I know you’ve done some great speeches recently, which I’ll put some links to on the message board that I’ve really enjoyed. Do you have any other fiery, denunciatory pulpit speeches coming up?

35:02

Stephan Kinsella: I’ve just been blogging a lot lately on The Libertarian Standard, which is libertarianstandard.com. I’ve got two or three books in the works. I’ve got one book in the works on intellectual property called Copy This Book, and I’ve got another book in the works as well. So, that’s what I’m focusing on right now. I blog a lot on these issues, on intellectual property issues, on my website, c4sif.org, which stands for Center for the Study of Innovative Freedom.

35:40

Stefan Molyneux: I’ll put that link in. As always, it’s been a real pleasure chatting with you, and have yourself a very, very merry Christmas.

35:46

Stephan Kinsella: Thanks, Steph. You too. Bye.

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Kinsella on Liberty Podcast, Episode 126.

This is my Mises University 2011 lecture, Intellectual Property and Economic Development (July 27, 2011), perhaps one of my better talks on IP and liberty. The original PowerPoint slides are here. Streanming audio, video, and a googledocs version of the slides are below. An unedited, raw transcript is also appended below (it may be cleaned up in due course).

Transcript
[continue reading…]

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Kinsella on Liberty Podcast, Episode 125.

Richard Heathen of Liberty Machine News interviews Stephan Kinsella about the evils intellectual property, why it it illegitimate and how it empowers crony capitalism through heavy handed state enforcement. (recorded April 10, 2014; uploaded May 12, 2014)

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