Related:

• Fun with Law Reviews: Coonass and so on

In 1997 I published an article, “A Libertarian Theory of Punishment and Rights,” in the Loyola of Los Angeles Law Review. First, notice the title–it has “libertarian” in it. I have never been shy about my libertarian views, but knew that this might cause problems with a mainstream law review. So I submitted it as “A Theory of Punishment and Rights”. I had been through the law review process a few times for earlier articles, so I figured once the piece was accepted, near the end of the editing stage when I was dealing with the grunts, I could simply tell them to change the title at the last minute, and they would be making so many little changes this would not raise red flags. That strategy worked.

Also, I used masculine pronouns etc. but they tried to strip it all down to gender-neutral–changing “he” to “them” etc. I resisted and they caved, but for this sentence, ” It is impossible for him[27] to coherently and intelligibly assert…,” they added footnote 27, which read: “It is the general policy of the Loyola of Los Angeles Law Review to use gender-neutral language. The author, however, has chosen not to conform to this policy.” (It’s now n. 33 in my chapter in my book. A Libertarian Theory of Punishment and Rights.)

Ha!

My other law journal story, The Enlightened Bar and Re: The Enlightened Bar (reprinted below) concerns an article of mine I submitted to the Texas Bar Journal. It was accepted, but the letter of acceptance informed me it could take up to a year to publish it–unless I was a minority, in which case they could scoot it to the head of the line. I was offended and withdrew it, published it (quicker) in another journal.

The Enlightened Bar

By Stephan Kinsella

April 29, 2004

Re: The Enlightened Bar

Posted by Stephan Kinsella on April 13, 2005 01:14 PM

Often people will decry tax breaks to certain businesses or industries on the grounds that this amounts to a “subsidy.” Of course it is false that letting people keep more of their money is a subsidy, but it is true that unequal tax rates (or breaks) can distort the market and benefit the more lightly-taxed business relative to more heavily-taxed ones. In any case, because of the distorting effect of tax breaks, various progressives and light-socialists label them subsidies and on this ground urge their abolition–i.e., to raise taxes on those taxed more lightly to equalize the tax burden (when the appropriate solution is to lower taxes on those more heavily taxed).

But if you go by the logic of the raise-taxes-by-closing-loopholes socialistic crowd, what about regulations that help big business by  disproportionately harming smaller companies? For example FDA regulations, patent law, pro-union legislation, environmental regulations, and the minimum wage. The costs of these socialistic regulations are more easily borne by larger companies than by smaller ones. Case in point, Walmart has pushed for a higher minimum wage. But Walmart already pays above minimum wage, so raising it would barely affect them. But it would impose costs on various Walmart competitors. So Walmart gets to advocate for what looks like social justice, while hobbling its competition. Clearly the minimum wage (and other regulations) is a subsidy to big business, following the logic of those who oppose tax loophole “subsidies,” and thus ought to be eradicated.

I’ll be appearing as a speaker and panelist at the upcoming Open Science Summit, Oct. 22, 2011, at the Computer History Museum in Mountain View CA. My topic is “IP and the New Mercantilism,” as part of panel “The Future (End) of ‘Intellectual Property.'”

I’m very stoked about meeting some non-libertarians who have anti-IP or at least IP-skeptical and pro-open information/open science views—and also to visit the Computer History Museum.

Update: Transcript is available here, and pasted below.

Audio is at KOL101 | The Future (the End?) of Intellectual Property (Open Science Summit, 2011).

Related posts:

• Open Science Summit – Openness by far and away will win out!;
• Dispatch from the Open Science Summit: Citizen Science, Microfinanced Research, Patent Trolls, and Pharma Prizes;
• Copyright and the Orphan Works Problem vs. Scholarship;
• More than 4,000 National Academies Press PDFs Now Available to Download for Free;
• Max Planck Society statement on copyright law and science;
• Jeffrey Tucker, “A Theory of Open“;
• Doug French, “The Intellectual Revolution Is in Process“;
• Jeffrey Tucker, and “up with iTunes U“;
• Kinsella, “Teaching an Online Mises Academy Course”;
• Copyright and the Orphan Works Problem vs. Scholarship;
• More than 4,000 National Academies Press PDFs Now Available to Download for Free;
• IP presentations at “Science, Knowledge, and Democracy” conference;
• Jared Diamond on Inventors and Innovation;
• The Myth of Under-provision of Science by the Free Market;
• Kinsella, “Fifteen Minutes that Changed Libertarian Publishing” (2)
• Gary North, “A Free Week-Long Economics Seminar”;
• Kinsella, “Intellectual Freedom and Learning Versus Patent and Copyright” and “How to Slow Economic Progress”

Transcript:

 

Stephan Kinsella

Thanks Joseph. I am very happy to be here. I am a patent attorney. I am also a libertarian and an adherent to the Austrian school of economics. Good. So some people understand …. excuse me?– Well, the Austrian school of economics is a radical free market school that is not positivist in methodology like the Coaseans or Milton Friedman type school. I am bringing that up because there is a methodology of science that is applicable to even the natural sciences and the topic of today. So.

Some of you may have heard of the land of Cockaigne–not cocaine–the land of milk and honey. The poets in the middle ages came up with a mythical land where everyone has everything satisfied and there is no scarcity. We do not live in this world. There is scarcity – you can’t just have what you wish for. There is no magic.

This gives rise to two key features. There is scarcity and causality. Only one person can use a resource at a time, they are rivalrous—as economists call it. In order to achieve results in this world, we have to use these scarce things in the world as means of action. And the choices that we make have to conform with causal laws. You decide on an action, and you choose a scarce resource, and you choose a casually efficacious means to achieve your end. This gives rise to the observation that there are two twin powers of human power and prosperity. Knowledge and property.

In a systematic way, knowledge is science. Science is the systematic categorization and acquisition of knowledge. Knowledge and property go hand in hand. They are twin pillars of human propserity. We have to have property rules to permit the peaceful and productive use of scarce resources in this world. Otherwise people would be fighting over them all the time. This is why we have property rules that assign an owner to every possible scarce resource.

And science is necessary to provide information about causal laws so that individual human actors know how to employ laws to achieve ends. This is a by the way the study of praxeology, the main idea of the primary Austrian economist, Ludwig von Mises. The logic of action, the study of human action. Employing means to achieve ends, and the means are scarce.

So in a free and civilized society, property rights are respected and individuals are free to learn from the body of knowledge and are free to add to it. This is the libertarian view of a free society where property rights permit resources to be used productively without conflict. And science informs men how to use these resources, and this knowledge expands our ability to achieve ends and expands our ability to see what ends are even possible.

Now, science and learning in general – the acquisition of knowledge – has many forms. Common experience, just living, observation, cultural immersion, informal teaching by parents, imitation, formal education, employment working at a job you learn things, and the scientific method and empirical testing. But learning is also part of a free and competitive market. Entrepreneurs invest in research and development and bring desired products to market. Consumers and competitors learn from these products, they learn what’s possible, they learn how they are made. And competitors emulate and improve maybe on the products.

The problem is that patents and copyright short-circuit this process. I said I was a patent attorney. I know that this makes me less appreciated, but I hate patents the most out of all of you. They are just grants by the state for a monopoly privilege designed to protect companies from competition. The holder can use the state force against an innocent or peaceful competitor from using the information to compete. They are based on the confused notion that it is wrong to use information or to learn in some context. It’s trying to assign property rights on information, patterns and designs. But the purpose of property is conflict over scarce resources. But ideas and knowledge can be used over and over and over, and they are not scarce.

So when the law tries to impose this on ideas, it’s trying to make ideas scarce when it’s not scarce. We need the concept of property, but the free market is trying to create abundance despite this. So the purpose of the market is to overcome the scarcity. More knowledge is good. The more knowledge we have, the better we are. This accumulation is essential to progress. We shouldn’t treat it as scarce.

This is the fundamental problem with intellectual property like copyright and patent law. The fact is, it’s literally impossible to have property rights in knowledge. So what the law ends up doing is that it, goes under the guise of protecting property rights and knowledge, it gives property rights to things that are scarce. Copyright gives you a right to take some of my money if I do something. It does not permit me to use my printing press as I see fit, it’s just to extract money from someone in the form of damages or use state force in the form of an injunction under penalty of being contempt in court and fines and jail.

Someone who has a patent on a mouse trap, even if he gets it later, can stop me from selling my mouse trap idea or mouse traps. Patent and copyright undermine and undercut science. Patents distort R&D by steering it away from heavily patented areas. It pushes research and development towards more practical gizmos because abstract ideas are not as easily patentable. For instance, physics equations are not, but a musical condom is. Patents even prevent the use of knowledge even if you independently invent an idea.

It also stigmatizes the idea of emulation and copying- or in the real world we call this learning- adn this is why we have words like stealing and privacy applying to learning, competing, and education. These are a type of evocation. Stealing means I take something from you, and you no longer have it. That’s bad, that’s why we impose it. Piracy- real pirates would attack people and kill them and sink their boats. But the terms used now for merely copying information and competing..?

Copyright is bad too. It locks up written works. Tons of works are being lost because it prohibits the dissemination of ideas. It creates a culture of a publishing model where important works, journals and books are `limited`. You have to go through this model because you have no choice instead of cutting out the middle man.

The title of my talk was IP and the new mercantilism. It had its peak in the late 1500s. Mercantilism was the policy of the crown protecting local industries by by granting them  monopolies, sometimes called patents. Back in the 1500s at the height of mercantilism, like in England, many goods were covered by patents like playing cards, leather, iron, soap, coal, books and wine and so on. Not because the holder of the monopoly invented it, but because the crown was granting favors for someone, sometimes in exchange for agreeing to collect taxes for the state. It caused the monopolists, the private companies, to turn to the government to perform search and seizures and investigate competitors who were going outside the monopoly. They would bust into a competitor’s shop and see if the playing cards had the king’s stamp on the back.

In France, in 1666, the button-makers guild demanded  the right cloth to search homes and arrest people on the street wearing cloth buttons made by the tailors. France even literally tortured and executed people for pirating fabric designs—broke them on the wheel. Some merchants even collected taxes in exchange for the monopoly, like the wool exporters. Now does this sound familiar? Today, we have the RIAA and the MPAA asking for warrantless searches to stop DVD piracy or CD  counterfeiting; private companies are helping Immigrations and Custom Enforcement, or ICE,  seize accused domain names without due process. ¹ ISPs like Comcast, Verizon, Time Warner and others are cooperating with the government to help stop copyright infringement. The Obama Administration’s “IP czar” ² —of course, “czar” means Caesar — and others have been secretly cooperating with Hollywood and the recording industry to disrupt internet access to people suspected of violating copyright law.

And the tax issues.. we have the software, music, and pharmaceutical industries accruing monopoly profits and the forms of royalties and shakedowns of people using trademark, patent and copyright law. By decreased competition they gain this monopoly and more money. So then this turns into campaign contributions or taxes. So Microsoft uses its money to acquire more patents and then uses that money to sue other companies and then to shake them down for royalty payments. It’s called royalties for a reason! It’s no surprise that Stodden mentioned that the law wwas fought back by copyright lobbyists.

As the state, basically- it’s nothing but mercantalism but so called property rights are used as a cover. Patent and copyright were not called property until recently. People resisted these monopolies because they knew there was something wrong. This is why they are only allowed for a limited time, so that the state could encourage innovation – but there’s proof that this actually hampers innovation. The advocates started to cover this property rights.. and hey who is going to be against property?

Someone the other day on some podcast said that children are like Hitler. If you bring up these terms in an argument, then nobody can argue against it. Who’s against protecting property? Or the no child left behind act. They put these nice terms on these laws to make it hard to oppose them. A lot of the opponents of intellectual property are proponents of property.. pro-free-market, pro property position is where we’re coming from.

The patent system isn’t broken. It’s doing what it’s intended to be doing. Patent reform? The latest was not significant at all. The problem is not software patents. The problem is not corporate patents. It’s not that the patent term is too long. We have to recognize that patent and copyright are completely antithetical to property right purposes and science. It impedes science and property.

Intellectual property prevents owners from using property as they see fit. And it intentionally stops learning. Don’t reform patent law: end it. If you want more information about this, I was going to post to c4sif.org.. there’s more information there, more systematic information elaborating on the ideas that I talked about today. I founded the Libertarian Papers journal. It’s completely free and open to the public and has no copyright restrictions whatsoever.

Thank you for your time.

1. See  Innocent Hip-Hop blog shut down by ICE for a year; The National Intellectual Property Rights Coordination Center is Here to Help. [↩]
2. See Intellectual Property Enforcement Coordinator (IPEC) . [↩]

The libertarian podcast Thinking Liberty is excellent and continues to impress (I was a guest on the Feb. 15, 2011 episode, discussing IP and related matters; the hosts were great and asked very intelligent questions). I really enjoyed a few recent episodes:

• 2011-07-26 show, featuring Kevin Carson (who has some nice things to say about the Mises Institute and yours truly);
• 2011-08-02 show, featuring Roderick Long, with an excellent discussion about anarchy, left-libertarianism, and related matters; and
• 2011-08-16 show, featuring Gary Chartier, discussing Christian anarchism.

I appeared last year on the Gene Basler Show, discussing a variety of anarcho-libertarian matters–environmentalism, nuclear power, state propaganda in government schools, class action lawsuits, reparations, how to achieve an anarcho-libertarian society, animal rights, positive rights and obligations, forced heirship, and so on (May 30, 2010). Apparently Basler has a book coming out, Environmental Non-Policy: Interviews on Environment, War and Liberty, which features an edited transcript of our discussion as a chapter.

He has some excerpts of my chapter here:

Stephan Kinsella Discusses Environmentalists

[continue reading…]

Here’s Stefan Molyneux at PorcFest 2011 at a Students for Liberty Q&A, discussing his Universally Preferable Behavior theory, and briefly fielding a question about Hoppe’s argumentation ethics and my estoppel theory (go to about 20:38):

(audio; mp3)

[VIDEO NOW LONGER AVAILABLE; user’s account suspended]

My Mises Daily article “Libertarian Controversies” ran today, discussing my upcoming Mises Academy course, Libertarian Controversies.

I gave a  speech last May, “Correcting some Common Libertarian Misconceptions” at the 2011 Annual Meeting, Property and Freedom Society (May 27-29, 2011), which is sort of a teaser for what I intend to discuss in the upcoming course. The video is here, and streamed below. It engendered a good deal of discussion and interest, and I could only touch on the topics I had assembled, so I thought a 5 week course would be ideal to discuss it all in depth.

pfs-2011 Stephan Kinsella, Correcting Some Common Libertarian Misconceptions from Sean Gabb on Vimeo.

I used to publish articles, columns, and letters to the editor in high school, in local newspapers (in Baton Rouge) and then, while at LSU (1983-91), in the LSU Daily Reveille. I was a columnist for a while at the Reveille, while in engineering and law school, and occasionally published pro-free market type columns. But they were not all political. I was quite the smart-ass when I was a young pup.

Well–today I was walking the dogs and saw a bullfrog hiding in a drain pipe in our yard, so took our 8 year old son out to see it. We were talking about him and he said “now I have a pet frog. … what should we name him?” I said, “Hmm, how about ‘Amphibeneur’?” He said “why”? So I ended up relating to him a smart-ass letter to the editor I published back in college, mocking a weepy “my cat has died please be careful not to run over cats everyone!” letter to the editor in the Reveille, in which I made up a story about my own pet frog, Amphibeneur (short for Amphibian Entrepreneur), who was killed by a vicious cat. Here it is.

John Stossel had a panel of libertarians discussing topics from Walter Block’s Defending the Undefendable. Stossel said they wanted to have Block on, but he was out of the country and unavailable, so instead the show featured Reason’s Nick Gillespie, David Boaz of the Cato Institute, and Alex Tabarrok of George Mason University, who “made the moral and economic case for often-vilified practices ranging from ticket scalping to human-organ sales to the creation of private currencies.”

Nina Paley posted on Google+ recently “an incomplete list of places I’ve spoken/lectured/presented at professionally”… And it’s quite impressive! I thought I would do the same, covering forums, publications, journals, publishers, venues, etc. I have published, lectured, taught, etc. over the last 18 or so years (since 1994, roughly), dividing it into my legal and libertarian worlds, and including also journals and publishers of written works:

Law

Speeches/Teaching

• Energy Law Institute, South Texas College of Law
• Jessup International Law Moot Court Competition (Judge)
• Oil & Gas Law Institute, South Texas College of Law
• Practising Law Institute
• The President’s Forum of Houston, The Entrepreneurship Institute
• South Texas College of Law, Houston (Computer Law, 1998-99)

Publishers

• ABA/CEELI
• American Bar Association (Marine Resources Committee, Section of Natural Resources, Energy, and Environmental Law)
• The Bent of Tau Beta Pi
• Currents, International Trade Law Journal
• Intellectual Property Today
  
• The Legal Intelligencer [Philadelphia]
  
• The Licensing Journal
• Louisiana Law Review
• LSU Mineral Law Institute
• New York Law School Journal of International and Comparative Law
• Oceana Publications
• Oxford University Press
• Pennsylvania Bar Association Intellectual Property Newsletter
• Penn. Bar Ass’n Young Lawyers’ Div’n Newsletter
• Pennsylvania Lawyer
• Petroleum Accounting and Financial Management Journal
• Philadelphia Lawyer
• Quid Pro Books
• Russian Oil & Gas Guide
• Texas Oil & Gas Law Journal
• UCC Bulletin
• West/Thomson Reuters

Libertarian

Speeches/Teaching

• Adam vs. The Man (television)
• Anarchy Time with James Cox
• Antiwar.com
• Bill Handel Show
• Ernest Hancock’s Declare Your Independence (radio)
• The Federalist Society
  • Philadelphia lawyers chapter
  • Ohio student chapter
• FreeDomain Radio
• The Freeman Society of Valley Forge
• FreeTalkLive (radio)
• Gene Basler Show (radio)
• HOBY Texas Gulf Coast 1998 Leadership Seminar, Rice University, Houston, Texas
• Twenty-Second International Conference on the Unity of Sciences, Seoul, Korea
• The Katherine Albrecht Radio Show
• The Lew Rockwell Show
• Liberální institut, Prague, Czech Republic
• Live and Let Live (radio)
• The Medical Freedom Report Podcas
• Ludwig von Mises Institute
  • Austrian Scholars Conference
  • Mises Academy
  • Mises University
  • Rothbard Graduate Seminar
  • Supporters’ Summit
• New York University School of Law/Journal of Law and Liberty
• The Peter Mac Show (radio)
• Property and Freedom Society, Bodrum, Turkey
• Students For Liberty Texas Regional Conference
• Thinking Liberty (podcast)
• This Week in Law (podcast)
• Who Owns You? (documentary)
• Wisconsin Forum
• Young Americans for Liberty (podcast)

Publishers

• Anti-state.com
  
• Business Ethics Quarterly
  
• The Daily Reveille (LSU)
• Economic Notes (Libertarian Alliance)
  
• The Free Market
• The Freeman: Ideas on Liberty
• Griffith Law Review
• Hastings Const. L. Q.
• Insight magazine
• LewRockwell.com
• IOS Journal
• Journal of Libertarian Studies
• Libertarian Papers (editor)
• The Libertarian Standard
• Liberty
• Loyola Los Angeles Law Review
• Mises Daily
• Pennsylvania Bar Association Intellectual Property Newsletter
• The Quarterly Journal of Austrian Economics
  
• Reason Papers
  
• Southern University Law Review
• Springer (chapter)
• St. Mary’s Law Journal
• Whittier Law Review
• The Wonderland Times

I was a guest last night on FreeTalkLive (Sunday, Aug. 21, 2011), discussing intellectual property with Sunday hosts Mark Edge and Stephanie. We talked for about an hour and a half, from 7pm-830pm EDT and had a good, wide-ranging discussion. A few callers called in near the end. This was the FTL debut on XM satellite radio’s “Extreme Talk”, XM 165. The show is now available on the podcast feed here (local MP3) (KOL082).

Podcast: Play in new window | Download (40.4MB)

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