This is lecture 3 (of 6) of my 2011 Mises Academy course “Libertarian Controversies.” This talk covered “Even More Misconceptions,” such as state vs. government, “limited” government, Hoppe on monarchy vs. democracy, federalism, restitution and punishment, positive obligations, and other issues. Slides for this lecture are appended below.
This is lecture 2 (of 6) of my 2011 Mises Academy course “Libertarian Controversies.” This talk covered more common libertarian misconceptions such as PDA jurisdiction, Big-L vs. small-l libertarianism and other misused terms, non-aggression “axiom” or principle, and other issues. Slides for this lecture are appended below.
This is lecture 1 (of 6) of my 2011 Mises Academy course “Libertarian Controversies.” This lecture contained an overview of basic austro-libertarian concepts and started discussing various libertarian “misconceptions,” regarding the left-right spectrum, coercion and force vs. aggression, the jurisdiction of private defense agencies, and related issues. I’ll release the remaining lectures here in the podcast feed in upcoming days.
This course followed on my speech “Correcting some Common Libertarian Misconceptions,” from the 2011 Annual Meeting of the Property and Freedom Society (May 27-29, 2011; see KOL 044 | “Correcting some Common Libertarian Misconceptions” (PFS 2011)). That talk engendered a good deal of discussion and interest, but in the time allotted for a single speech I was able to cover only a small number of the topics I had assembled over the years. In the 6 week Mises Academy course, “Libertarian Controversies” (Sept. 19-Oct. 23, 2011), I covered these and related topics in greater depth. The course was planned for 5 weeks initially, but I added a sixth “bonus” lecture at student request. The course is discussed in my Mises Daily article “Libertarian Controversies” (Aug. 25, 2011); here are the audio and slides for all six lectures. The “suggested readings” for this lecture are appended below.
This is my speech “Correcting Some Common Libertarian Misconceptions,” delivered on May 28, 2011, at the Annual Meeting of the Property and Freedom Society. The video is here, and streamed below; here is the powerpoint presentation. Re-presented as PFP076.
This is a discussion about IP with a fellow Austro-anarchist libertarian, Alexander Baker, who initially accepted the anti-IP argument I and others have made, but who has since moved to a type of pro-IP position. We had a few email discussions in recent months about this, but I was unable to persuade him that his approach was misguided. We decided to have a (friendly) discussion about it.
Baker calls his theory “intellectual space” and has a new blog devoted to this “libertarian theory of intangible property”; he sketches his position in his post Intro to Intellectual Space. We had a very interesting, civil discussion, which is rare for discussions with IP advocates (see, e.g., KOL 038 | Debate with Robert Wenzel on Intellectual Property). Baker was honest and forthright, willing to admit what he is not yet sure about; he admitted his own bias for IP given that his career (as a musical composer) depends in part on IP protection. He admitted the burden of proof is on IP advocates, and I believe he would not disagree with me that many advocates over the years have offered weak arguments.
I don’t agree with Baker, in the end. His argument seems to me to be based on analogies: an idea or recipe can play a role in production “similar” to how scarce means can, and thus can be exploited, owned, etc. However, he came across to me as sincere and searching for truth, which I can appreciate. Listen and judge for yourself.
Update: Here is a previous discussion on this topic between Baker and Stefan Molyneux:
I was a guest recently on the Renegade Variety Hour (discussing intellectual property and other issues), with hosts Carlos Morales and Taryn Harris (recorded April 5, 2013, podcast April 10, 2013). I met them at the recent Liberty in the Pines conference and was happy to talk with them.
Blogger Robert Wenzel and I had a “debate” earlier today about IP, to be jointly put up on my podcast and his Economic Policy Journal “podcast” (it’s on his site at Kinsella Crushed!! and Initial Report on Debate, and mentioned ahead of time several times as linked below). Bob is an Austrian libertarian (I think) blogger but has been criticizing me and Jeff Tucker’s anti-IP views for a few years now (see links below), so we decided to discuss it. 1
GROK SUMMARY SHOWNOTES: In this episode of the Kinsella on Liberty Podcast (KOL038), recorded on April 1, 2013, libertarian patent attorney Stephan Kinsella engages in a contentious two-hour debate with pro-IP libertarian blogger Robert Wenzel on the legitimacy of intellectual property (IP), focusing on patents and copyrights, hosted on Wenzel’s Economic Policy Journal and Kinsella’s podcast (0:00:00-10:00). Kinsella argues that IP violates property rights by granting state-enforced monopolies over non-scarce ideas, using Austrian economics to emphasize that property rights apply only to scarce, rivalrous resources, and systematically refutes Wenzel’s circular arguments, as noted in his post-debate commentary on stephankinsella.com. Wenzel, defending IP, relies on metaphors like “stealing” information and claims ownership of a “Drudge formula,” which Kinsella dismantles as service contracts, not property transfers, while Wenzel’s EPJ posts assert he “crushed” Kinsella, focusing on Kinsella’s alleged insults and anger (10:01-1:00:00).
The debate intensifies as Wenzel diverts to side issues, such as challenging Kinsella’s historical claims about Rothbard’s anti-IP stance, and avoids defining IP, prompting Kinsella to highlight Wenzel’s evasiveness and confusion between rivalry and competition, as detailed in Kinsella’s commentary (1:00:01-2:00:00). Wenzel’s EPJ posts claim Kinsella was “afraid” of losing and overly emotional, while Kinsella notes Wenzel’s own profanity and frustration, maintaining focus on IP’s economic harms, like stifling innovation, and its incompatibility with libertarian principles (2:00:01-2:23:07). The Q&A reveals Wenzel’s reliance on emotional appeals over substance, with Kinsella concluding that IP is an unjust state intervention, directing listeners to c4sif.org. Wenzel’s initial EPJ report and archived claim of victory contrast with Kinsella’s analysis, which underscores Wenzel’s failure to provide a coherent IP defense, making this episode a rigorous critique of IP’s flaws.
GROK DETAILED SHOWNOTES BELOW
Youtube:
Backup copy:
The discussion went on for over 2 hours. It went about as I expected: he tried to dwell on side points, he refused to—was unable to—even attempt to define IP much less provide a coherent justification for it. He repeatedly engaged in question-begging: calling using information you learn from others “stealing,” which presupposes that there is some owned thing that is stolen. He started out with several bizarre, off-point attacks: for example challenging my claim in my 2001 piece Against Intellectual Property that Rothbard was one of the original libertarian opponents of IP. The entire criticism by Wenzel is bizarre because whether or not I am right in listing Rothbard as an opponent of patent and copyright has nothing to do with whether IP is justified. Further, later in the paper I have an extensive section dealing with Rothbard’s attempt to come up with some kind of contractual scheme that emulated some aspects of IP, which he confusingly calls “copyright.” Some libertarians, like Wenzel, apparently think Rothbard did support copyright (though Wenzel repeatedly equivocates on whether he is talking about state copyright or Rothbard’s private “copyright” scheme), or patent, or something in between, and others say he didn’t. For example David Gordon writing on LewRockwell.com, in Sam Konkin and Libertarian Theory, observes:
… anti-IP views were very much in the air thirty years ago: Wendy McElroy stands out especially in my mind as a forceful and effective critic of IP. Even earlier, Rothbard had in Man, Economy, and State (1962) favored the replacement of the state system of patents and copyrights with contractual arrangements, freely negotiated. (If one moves outside modern libertarianism, Benjamin Tucker rejected IP well over a century ago as Wendy McElroy has documented in an outstanding article.
Rothbard did not take this “contractual copyright” idea very far and indeed I believe it contradicts other aspects of his thought such as his contract theory (ch. 19 of Ethics of Liberty), his opposition to reputation rights/defamation law (ch. 16), and his explicit opposition to patents (ch. 16, also Man, Economy, and State and Power and Market, Scholars Edition, pp. liv, 745-54, 1133-38, 1181-86).
But anyway, what does it matter? It’s a bizarre appeal to authority. I am quite sure that Rothbard would have agreed with us anti-IP libertarians if he had had more time to sort it out; as I noted, it’s implied in all the structure of his political theory. This is why Hoppe easily saw this by integrating Rothbardian and Misesian political economic ideas (Hoppe on Intellectual Property). But so what if he would not have? Then he would have been wrong. And so what if I had been wrong in listing Rothbard as an early libertarian opponent of IP (though he arguably was; although as the paper explained later on, his position was not fully fleshed out and/or had ambiguities). How does this prove IP is legitimate? It does not, but Wenzel has no good argument for IP which is why he for over two hours refuses my repeated requests that he provide one—after all, it’s supposed to be a debate about IP. In fact in my opening statement I explained that the burden of proof is on the pro-IP libertarian: to provide a coherent definition of and justification for IP, especially given its statist origins and statist usage today (Where does IP Rank Among the Worst State Laws?). [continue reading…]
Note: I failed to record the audio at my end until 1:07:10, but my audio quality was better. So I spliced in the better second half from my recording. So starting at 1:07:10 you can hear better audio quality at my end, and no worse at Wenzel’s. [↩]
Sponsored by the Young Americans for Liberty chapter and the Charles Koch Foundation, this one-day event brought together liberty-lovers of all stripes from surrounding areas. My speech was “Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory.” Stefan Molyneux and Jeff Tucker appeared and delivered speeches as well (with Jeff’s inspiring keynote resulting in a resounding standing ovation). Walter Block conducted an “Ask a Libertarian” Q&A session (remotely), and relative newcomer Jessica Hughes delivered a surprisingly radical and resounding speech on “The Constitution of Faux Authority.”
This podcast episode includes my speech and Q&A (about 54 minutes) plus the panel Q&A (about another 50 minutes). The panel Q&A touched on issues like peaceful parenting, spanking, and so on. Not to toot my own horn, but I know I have a lot of a/v material out there, so I do believe this speech of mine is one of the most important I’ve ever done.
Grok shownotes: In this lecture from the Libertarian Papers Audio Series, recorded circa 2010, titled “Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory,” Stephan Kinsella critiques John Locke’s labor theory of property, arguing it introduced a metaphorical and imprecise framework that has distorted political and property rights theory (0:00-5:09). Kinsella, a libertarian patent attorney, contrasts Locke’s idea—that mixing labor with unowned resources creates property rights—with the libertarian homesteading principle, which emphasizes first use or appropriation without requiring labor (5:10-15:14). He contends that Locke’s labor metaphor fosters confusion, notably contributing to the flawed concept of intellectual property (IP), which wrongly treats non-scarce ideas as ownable, and connects this to broader errors like the labor theory of value that influenced Marxism (15:15-25:24). Kinsella’s analysis highlights how imprecise language, such as “owning labor,” has led to significant theoretical missteps.
Kinsella further explores the consequences of Locke’s labor theory, illustrating how it underpins misguided arguments for IP by equating mental labor with physical labor, thus justifying monopolies over ideas (25:25-35:34). He clarifies that property rights arise from scarcity and first use, not labor, using examples like homesteading land versus creating a poem, and critiques related metaphors like “selling labor” in contracts, which he reframes as conditional title transfers (35:35-45:44). In the final segment, Kinsella advocates for a first-use-based property theory to eliminate IP and align with libertarian principles, addressing objections like voluntary slavery and emphasizing clear language to avoid metaphorical traps (45:45-55:54). He concludes by rejecting attempts to tie Locke’s theory to IP, urging libertarians to abandon labor-based property notions for intellectual freedom and market efficiency (55:55-56:05). This lecture is a rigorous critique of a foundational philosophical error, relevant to liberty and property rights debates.
Grok detailed summary below.
Update: Several favorable comments: e.g. “It is a shame how few views this has. I use this video often to help libertarians understand the trap of “self ownership” and I am so glad, now years ago, you fixed this for me in our interview”, “Stephan, this talk is gold. Sharing.”, “This was really helpful. I appreciate and enjoy Kinsella’s focus on using language precisely.”
Update: The YouTube at the bottom had inferior audio to the podcast version that I recorded using the iPhone in my pocket. The YouTube immediately below incorporates the superior audio track (thanks to Manuel Lora).
Original YouTube, with inferior audio:
GROK SUMMARY
Bullet-Point Summary for Show Notes with Time Markers and Block Summaries
Overview
Stephan Kinsella’s lecture, part of the Libertarian Papers Audio Series (circa 2010), titled “Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory,” critiques John Locke’s labor theory of property for introducing metaphorical confusion that has distorted political philosophy, particularly through intellectual property (IP). Using Austrian economics and libertarian principles, Kinsella argues that property rights stem from scarcity and first use, not labor, and advocates for clear language to avoid errors like IP and the labor theory of value. The 56-minute talk uses examples and theoretical analysis to propose a first-use-based property system. Below is a summary with bullet points for key themes and detailed descriptions for approximately 5-15 minute blocks, based on the corrected transcript at the provided link and the raw YouTube transcript with time markers.
Key Themes with Time Markers
Introduction and Locke’s Mistake (0:00-5:09): Kinsella introduces Locke’s labor theory as a significant error in political philosophy, relevant to liberty (0:21-1:54).
Libertarian Property Framework (5:10-15:14): Contrasts Locke’s labor theory with libertarian homesteading, emphasizing first use and scarcity (1:54-12:21).
Labor Theory’s Flaws and IP (15:15-25:24): Critiques Locke’s metaphorical labor ownership, linking it to IP and the labor theory of value (12:21-21:26).
IP and Creation Misconceptions (25:25-35:34): Argues that labor-based IP justifies monopolies, clarifying property as first-use-based (21:26-31:03).
Contract and Labor Metaphors (35:35-45:44): Reframes “selling labor” as title transfers, rejecting labor as ownable (31:03-41:12).
Correcting Locke’s Error (45:45-55:54): Advocates a scarcity-based property theory to eliminate IP, addressing objections like voluntary slavery (41:12-51:21).
Conclusion and Locke’s Legacy (55:55-56:05): Rejects Locke’s labor theory and IP, urging clear libertarian principles (51:21-56:05).
Block-by-Block Summaries
0:00-5:09 (Introduction and Locke’s Mistake) Description: Kinsella opens with a humorous tone, introducing the lecture at a post-lunch event and framing John Locke’s labor theory of property as a “big mistake” that has “ruined political theory” (0:21-0:50). He contrasts his thesis with Ayn Rand’s view of Kant as history’s most evil man, noting Locke’s contributions but identifying his labor metaphor as a source of confusion (0:51-2:00). Kinsella highlights the dangers of metaphorical language in libertarianism, citing Supreme Court Justice Cardozo and Austrian economists like Mises (2:01-5:09). Summary: The block sets the stage, introducing Locke’s labor theory as a flawed metaphor that has distorted political philosophy, with relevance to libertarian clarity.
5:10-10:00 (Libertarian Property Framework) Description: Kinsella discusses the overuse of metaphors in libertarianism, like “self-ownership,” preferring “body ownership” for clarity (5:10-7:02). He introduces Mises’ praxeology, explaining human action as using scarce means to achieve ends, and contrasts this with labor as a subset of action, not a special entity (7:03-9:38). He critiques terms like “limited government” for imprecision, arguing libertarians favor specific limits on the state (9:39-10:00). Summary: The libertarian framework is established, emphasizing clear language and scarcity-based property rights, setting up the critique of Locke’s labor theory.
10:01-15:14 (Labor Theory’s Flaws and IP) Description: Kinsella elaborates on praxeology, detailing how humans use scarce means (e.g., eggs, ovens) and non-scarce knowledge (e.g., recipes) to act, arguing IP wrongly assigns property rights to ideas (10:01-12:21). He introduces the libertarian property rule—first appropriation or contract—and contrasts it with Locke’s labor-based approach, which assumes owning labor leads to owning resources (12:22-14:15). He cites David Hume’s critique of Locke’s metaphorical labor ownership (14:16-15:14). Summary: Locke’s labor theory is critiqued as metaphorical, leading to IP errors, with libertarian homesteading offered as a clearer alternative.
15:15-20:00 (IP and Creation Misconceptions) Description: Kinsella argues that Locke’s labor theory contributed to the labor theory of value, influencing Ricardo, Smith, and Marx, with disastrous economic consequences (15:15-18:24). He critiques the labor theory of property for suggesting labor creates ownership, using an employee building a chair to show ownership depends on prior resource control, not labor (18:25-20:00). Summary: The labor theory’s link to economic errors and IP is explored, clarifying that ownership precedes labor, not derives from it.
20:01-25:00 (Creation and Property Rights) Description: Kinsella debunks the idea of creation as a third source of property rights, alongside homesteading and contract, arguing it stems from Locke’s labor metaphor (20:01-21:26). He uses examples like a poem or chair to show that creation transforms owned resources, not ideas, and critiques possessive arguments (e.g., “my labor”) as sloppy thinking (21:27-24:12). He emphasizes that wealth creation doesn’t alter property rights (24:13-25:00). Summary: The creation-based ownership argument is refuted, showing it conflates wealth with property rights, rooted in Locke’s labor confusion.
25:01-30:00 (Property and Contract Clarity) Description: Kinsella critiques the term “property” as misleading, preferring “property right in a scarce resource” to avoid IP confusion (25:01-27:04). He addresses contract objections, arguing that “selling labor” doesn’t imply owning labor but involves conditional title transfers, per Rothbard’s title transfer theory (27:05-29:01). He uses a singing contract example to illustrate this (29:02-30:00). Summary: The need for precise property and contract terminology is emphasized, reframing labor contracts to avoid labor ownership myths.
30:01-35:00 (Labor Contracts and Misconceptions) Description: Kinsella elaborates on contracts as title transfers, not binding promises, explaining that labor contracts transfer money conditioned on action, not labor itself (30:01-32:14). He critiques the assumption that labor must be ownable to be sold, arguing this stems from equating labor contracts with goods exchanges (32:15-34:12). He introduces Walter Block’s voluntary slavery argument (34:13-35:00). Summary: Labor contract misconceptions are clarified, showing they involve outcomes, not labor ownership, challenging IP and slavery arguments.
35:01-40:00 (Ownership and Slavery) Description: Kinsella refutes Block’s claim that owning one’s body implies the right to sell it into slavery, arguing ownership means control, not necessarily alienability (35:01-37:24). He distinguishes body ownership (inherent) from resource ownership (via homesteading or contract), suggesting bodies are inalienable due to their non-acquired nature (37:25-39:12). He reiterates the need for clear language (39:13-40:00). Summary: The slavery objection is addressed, clarifying ownership’s limits and reinforcing the rejection of labor-based property rights.
40:01-45:00 (Clearing Philosophical Confusion) Description: Kinsella argues that clearing metaphorical confusion (e.g., “owning labor”) resolves IP and other errors, emphasizing that property rights address scarce resource conflicts (40:01-42:30). He reiterates that creation and labor are not ownership sources, using examples to show prior ownership determines rights (42:31-44:12). He prepares for Q&A, noting time constraints (44:13-45:00). Summary: The philosophical importance of clear language is stressed, resolving IP and labor theory errors through a scarcity-based framework.
45:01-50:00 (Libertarian Property Principles) Description: Kinsella advocates a first-use-based property system, rejecting labor-based theories to eliminate IP and align with libertarianism (45:01-47:24). He addresses objections, like the assumption that ownership implies alienability, using body ownership to show control doesn’t always mean sellability (47:25-49:12). He critiques libertarian attempts to rehabilitate Locke for IP (49:13-50:00). Summary: A scarcity-based property system is proposed, addressing objections and rejecting IP as a labor-based error.
50:01-55:54 (Locke’s Legacy and IP) Description: Kinsella critiques libertarians like Richard Epstein for misinterpreting Locke to support IP, arguing Locke viewed IP as a prudential, not natural, right (50:01-52:24). He emphasizes that Locke’s labor theory was metaphorical, not intended to justify IP, and urges rejection of such interpretations (52:25-54:12). He concludes by advocating clear thinking to avoid Locke’s errors (54:13-55:54). Summary: Locke’s limited IP support is clarified, rejecting labor-based IP justifications and promoting precise libertarian principles.
55:55-56:05 (Conclusion) Description: Kinsella wraps up, thanking the audience and reiterating that Locke’s labor theory, while influential, was a mistake that libertarians should correct to preserve clarity and liberty (55:55-56:05). Summary: The lecture concludes with a call to reject Locke’s labor theory, advocating for a first-use-based property system free of IP.
This summary provides a concise yet comprehensive overview of Kinsella’s KOL037 lecture, suitable for show notes, with time markers for easy reference and block summaries capturing the progression of his argument. The corrected transcript from the provided link and the raw YouTube transcript with time markers were used to ensure accuracy, supplemented by general knowledge of Kinsella’s anti-IP and libertarian property rights stance to enhance clarity. Time markers are aligned with the YouTube transcript, adjusted to the 56-minute duration.
Kinsella on Liberty Podcast, Episode 047.
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