KOL159 | Seminar: “Practical Solutions to the IP Trap”

Kinsella on Liberty Podcast, Episode 159. This is my seminar, Practical Solutions to the IP Trap, delivered to Liberty.me members on May 19, 2014, based on my monograph Do Business Without Intellectual Property (Liberty.me, 2014). This discussion, moderated by Matt Gilliland, provides an overview of IP and the issues faced by people in their careers and lives and offers suggestions as to how to ethically and practically navigate challenges posed by the existing IP system. Transcript below. Youtube: See also: Profiting without IP “Conversation with an author about copyright and publishing in a free society” (Jan. 23, 2012) Do Business Without Intellectual Property (Liberty.me, 2014) “Innovations that Thrive without IP,” StephanKinsella.com (Aug. 9, 2010) “Examples of Ways Content Creators Can Profit Without Intellectual Property,” StephanKinsella.com (July 28, 2010) “The Creator-Endorsed Mark as an Alternative to Copyright,” Mises Economics Blog (July 15, 2010) Diomavro, Avengers endgame or do movies need copyright? Creators SHOULDN’T Own their Creations TRANSCRIPT Liberty.me Seminar: Practical Solutions to the IP Trap Stephan Kinsella Liberty.me, May 19, 2014   00:00:10 STEPHAN KINSELLA: Let me briefly define the background, the topic, and if I say anything that is confusing or anyone has questions, feel free to raise your hand, and Matt can let me know and I’d be happy to address something that I go over too quickly or that needs more elaboration.  Intellectual property, in the modern, capitalist, 21st century age, is an entrenched part of the western legal system, America, Europe, etc. and other countries as the west tries to push it and gets it entrenched in those countries.  It is considered widely to be part of the capitalist, property rights system.  In fact, patent and copyright, trademark and trade secret and other types of intellectual property are called intellectual property for a reason. 00:00:59 It was for a propaganda reason to try to get these things thought of as a property right.  Originally, they were thought of as privileges or policy tools by the monarch or the state, but under attack by free-market defenders, the proponents of IP started calling them property rights.  So this is where we are now.  We have a system where patent law, copyright law, trademark, trade secret, and other types of IP, which I can go into, are basically part of the landscape. 00:01:36 Now, the libertarian position, which I’ve argued for over a decade now, almost two decades now – the libertarian position is that patent and copyright law and other types of IP law are completely, 100% incompatible with free markets, competition, freedom of expression, freedom of speech, and individual property rights.  So I’m totally opposed to patent and copyright law.  I don’t think we should reform it.  That would be a good step.  But I think we should totally abolish it.  I believe that patents impose hundreds of billions of dollars of damage on the economy of the US, let’s say, every year. 00:02:27 I believe copyrights also impose damage and cultural distortion, and it represses and suppresses freedom of speech, freedom of expression, and it arms the state to come up with excuses to regulate the internet and restrict internet and digital freedom.  So there’s basically nothing whatsoever good about patent and copyright and other forms of intellectual property like trademark and trade secret.  But they are definitely entrenched, so that’s a fact of the modern world. 00:03:01 And I’ve talked at length on this.  I’ve got tons of podcasts and lectures and articles, and so do other people, which I have collected at my website, C4SIF.org.  So the background is that we live in a world with lots of non-free-market, non-libertarian interventions and measures and policies and practices and institutions like the drug war, taxation, minimum wage law, regulations, immigration restrictions, war itself, conscription lurking in the background, all these things.  They’re there.  They’re un-libertarian.  We don’t like them, and intellectual property.  So the question is what do we do about them? 00:03:46 Well, the political answer is that we should work to abolish them, but this course is more about practical ways that, as a person living in the real world, what do you do about it?  So my way of looking at it is that there’s different approaches.  Number one, there’s the moral approach.  So if your question is, what do I do as a moral person, in particular, as a libertarian, how do I act in the world?  Is it legitimate or moral for me to take part of the given system?  Can I drive on public roads?  Can I take part in the patent and copyright system, etc.?  So that’s one type of question. 00:04:33 And then there are other practical questions that relate to this.  For example, if I don’t want to use intellectual property, how can I avoid it?  Or is it a good idea for me to avoid it or to use it?  So all these issues arise.  So let me focus really quickly on the two main types of intellectual property, which is patent and copyright.  Patent law governs inventions.  Copyright governs creative expressions, artistic works. 00:05:10 These are the two big things.  So let’s take copyright first.  In a way, the question is a little bit moot because the way copyright works is it’s automatically granted ever since 1989 in the United States after acceded to the Berne Convention, which eliminated formalities, which was previously you had to register a copyright, and they put a copyright notice on a work to get a copyright.  Now, those requirements are eliminated.  So under the current law, ever since 1989, copyright is automatically granted.  So every time you write something down, make a painting, write a software program, you instantly have a copyright granted by the federal government whether you want it or not, and it’s almost impossible to get rid of it. 00:05:58 Okay, so the first thing to do is to recognize what the landscape is, what the threats are, what your rights are, what your options are, and the same thing is true for patent law.  So for copyright, the question would be what should you do?  What can you do?  Now, one of the approaches I think you can take is most of the things that people author, we want the word to get out there.  And so because the copyright automatically attaches to these things, it is a restriction on what others can do with it. 00:06:44 So for most people, as Cory Doctorow, for example, says, if people don’t know about your works, obscurity is going to doom you.  You want your works to be spread.  So one thing you can do is try to release your works into the commons as much as possible.  There’s both a moral and a practical reason for this.  The moral reason is because copyright is totally unjustified and illegitimate.  So that’s the moral reason.  The practical reason is that you want people to spread your ideas and your work, and you cand o this in today’s world by means of using the creative commons licenses. 00:07:25 Now, the one I recommend that people use is the creative commons attribution only.  That’s CC-BY.  I would prefer CC0, which is basically making it almost public domain.  I’m just concerned that the way the law works, that that is not an effective, legally enforceable license, and that means that people that read your works or want to use your works can’t rely on the license because they don’t trust it, and it’s like it’s copyrighted still.  So I think the most safe license would by the CC-BY, which is what I try to use as much as I can. 00:07:59 Now, practically, how does that help or hurt you?  It helps you because it helps get the – it makes your work easy to copy and spread.  And does it really hurt you?  I don’t think it does.  There is lots of ways you could profit from your writing, and we have to recognize most people don’t write or create for profit.  They do it for other reasons, or if they profit, they profit without the benefit of copyright law.  So in the cases where you would profit monetarily, having a CC-BY license wouldn’t really hurt you at all.  You’d get your reputation out there.  You’d get known more, and you – so one blog post I have is an example. 00:08:49 If you think about J.K. Rowling, the author of the Harry Potter novels, who is now the first or second-most rich woman in England – she’s a billionaire because of the movies and the merchandising and the novels from the Harry Potter series.  Take her, for example.  If she had released Harry Potter on Amazon Create Space, the first novel, and it had become popular, she would have made some money because the books are $1 or $2 or $3 each.  In a copyright-free world, let’s say, maybe she would have been pirated right away, but she still would have sold many copies.  She would have made a good sum of money, but she would have established her name as the author of a very popular series. 00:09:30 She could have, for example, said I’ve got book number two and three written already, and I will release it as soon as 100,000 or a million of my fans pledge $10 each to buy the book.  I guarantee she could have done that.  That’s $10-$20 million right there just for the next book or two.  So she easily is already at a 10-or-20 millionaire after one or two or three books, and she wrote seven, by the way.  So we can already see she’s approaching $100 million of value in a copyright-free world. 00:10:07 In a copyright-free world, anyone could have made a movie on the Harry Potter series.  But if there’s one or two or three studios trying to make the first Harry Potter movie, someone would have an incentive to approach her and get her cooperation, advisor, executive producer status, and endorsement to make the movie be the most popular one.