KOL055 | The Voluntary Life Author Interview: Stephan Kinsella on Against Intellectual Property (2010)

Kinsella on Liberty Podcast, Episode 055. This is from The Voluntary Life, Author Interview: Stephan Kinsella on Against Intellectual Property (March 20, 2010; also podcast as Episode 1616 of Freedomain Radio, as Stefan Molyneux joined in too). Interviewed by Jake. See also their interesting episode Against Intellectual Property: A Follow Up Discussion. https://youtu.be/HnXgJZXfY7g?si=etBFxpbep0tuhBb- Shownotes Episode Title: KOL 055 – The Voluntary Life Author Interview: Stephan Kinsella on Against Intellectual Property (2010) Guests: Stephan Kinsella (registered patent attorney, libertarian theorist, Director of the Center for the Study of Innovative Freedom, editor of Libertarian Papers) Host: Jake (The Voluntary Life) Special participant: Stefan Molyneux Length: Approximately 70 minutes Overall Summary In this 2010 interview, Stephan Kinsella explains the core arguments from his influential monograph Against Intellectual Property. He describes his intellectual journey from initial agreement with Ayn Rand’s view of IP as an extension of property rights to the firm conclusion that any form of state-enforced intellectual property is incompatible with libertarian principles and the non-aggression principle. The discussion explores why ideas and patterns are not scarce resources capable of being owned, the critical distinction between voluntary contracts and coercive state IP, the initiation of force inherent in patent and copyright enforcement, and practical injustices caused by the current system. Kinsella and callers examine incremental invention, government-created dependency on IP, reputation rights, and how a free society could function without state-granted monopolies on ideas. The interview emphasizes that legitimate property rights arise only from homesteading scarce, rivalrous resources, not from government privileges over non-scarce information or potential future profits. Detailed Summary Introduction Jake introduces the episode and provides background on Kinsella’s monograph Against Intellectual Property, first published in the Journal of Libertarian Studies in 2001 and later released as a free book by the Mises Institute. He outlines the historical context: how most mid-20th-century freedom-oriented thinkers, heavily influenced by Ayn Rand, viewed intellectual property as a natural extension of property rights. The host contrasts this with Murray Rothbard’s partial criticisms and highlights Kinsella’s unique contribution—demonstrating that IP is a state-enforced legal convention fundamentally at odds with the non-aggression principle. How Did You Get Interested in IP? Kinsella recounts his personal path: discovering The Fountainhead in high school, studying engineering, then attending law school where he deepened his interest in libertarian theory. He describes his early sympathy with Rand’s arguments on patents and copyrights, followed by growing doubts as he studied libertarian principles more rigorously. While practicing IP law, he concluded that Rand’s theory relied on ad hoc utilitarian reasoning and ultimately lacked justification. He explains the abstract nature of his critique, the writing process in the mid-1990s, and how the rise of the internet later amplified the practical problems with IP, making his arguments more relevant. The Scarcity Question A caller challenges Kinsella’s emphasis on scarcity, arguing that while ideas themselves may not be scarce, the exclusive economic profits or advantages they generate are. Kinsella responds by grounding property rights in the Lockean homestead principle applied to scarce, rivalrous resources. He distinguishes between physical means (which are scarce and require ownership to avoid conflict) and non-scarce information or patterns that multiple people can use simultaneously without conflict. Using praxeological analysis, he explains why ownership is necessary for means of action but not for the guiding information or recipes. Concrete examples, such as razor blades and superior cotton-harvesting techniques, illustrate why potential future profits or “value” cannot legitimately be treated as ownable property. Contract Law and IP The conversation shifts to whether IP could be managed through voluntary contracts rather than state law. Kinsella agrees that private contractual arrangements for secrecy or exclusivity are fully compatible with libertarianism and anarchism. However, he stresses the vital distinction between such “private IP” and the current state-enforced “public IP,” which binds third parties who never signed any contract. He explains that the essence of patent and copyright law lies in its power to affect non-contracting parties, including through bans on reverse engineering and independent invention. Kinsella criticizes vague libertarian proposals for alternative IP systems, noting that most advocates avoid clearly defining what they support. Common Law Discussion turns to how a free society would handle exclusivity issues under common law or contract principles rather than statutory regimes. Gray areas are acknowledged as inevitable. A caller raises the concern that IP creates a de facto lien on all physical property worldwide (e.g., a copyrighted limerick restricting others’ use of paper and ink). Kinsella addresses literal copying versus broader derivative-works rules, providing examples such as background architecture in films, vacation photos, and cultural osmosis of characters like Superman. He clarifies that limits on using one’s property (the “knife” analogy) stem from respecting others’ bodily property rights, not from weakening one’s own ownership. Property rights are fully defined by homesteading scarce resources; IP improperly adds an extra layer of control. Future of IP Speculation arises on whether IP will become unenforceable due to digital technology or face a stronger state clampdown. Kinsella compares it to the drug war—absurd yet persistently enforced. He argues that learning, emulation, and the free sharing of information are positive drivers of human progress and civilization. He suggests creators should focus on reputation and avoiding obscurity rather than relying on legal monopolies. Markets and young internet culture, he believes, would adapt even without copyright, though the exact shape of big-budget productions remains uncertain. Government Dependence and Incremental Invention Stefan Molyneux notes that IP makes artists and cultural elites dependent on the state, fostering loyalty similar to welfare-state dynamics. The group discusses how most innovations are incremental improvements built on thousands of prior contributions rather than isolated “great man” achievements. Kinsella critiques the exaggeration of individual creators and the arbitrariness of patent and copyright standards, which are vague, subjective, and change over time. He contrasts derivative-works restrictions in copyright with the ability to build upon (but not freely use) patented inventions. Bribery – Government Raising Costs and Bribing with IP The discussion highlights how government regulations, unions, FDA rules, taxes, and tort law dramatically raise costs for industries like pharmaceuticals and filmmaking. IP extensions then function as a form of bribery to keep these industries viable and politically loyal. Antitrust laws prevent private contractual alternatives. Utilitarian arguments for IP can logically lead to government-funded prize systems or subsidies. The result is more conservative, mass-appeal media and fewer challenging or niche works, as people grow attached to the distorted status quo. Use of Force A caller focuses on the central libertarian issue: where does the initiation of force occur in IP disputes? Kinsella uses a simple caveman/hut example to show that copying an idea is not aggression, while destroying the copycat’s physical property is. In the modern system, patents lead to court-ordered seizures, injunctions, and jail for contempt. He argues that supporting IP means siding with state force against peaceful producers and independent inventors. The lack of a copying requirement in patents makes the aggression especially clear. The IP Argument – Profits, Independent Invention, Value, and Reputation Extended debate covers whether “stealing future profits” constitutes aggression. Kinsella explains that patents block even independent invention and provides examples like Amazon’s one-click patent. He critiques objectivist views on labor, value creation, and reputation rights, which he sees as another form of IP. Drawing on Rothbard, he notes that value is subjective and exists in others’ minds. Creation is neither necessary nor sufficient for ownership—transformation of already-owned scarce resources is what matters. The unseen opportunity costs of IP and the unrenounceable nature of copyright (“roach motel”) are also addressed. Monsanto, Organism Patents, and Submarine Patents Concrete injustices are examined: U.S. patents on living organisms that extend to future generations, Monsanto suing farmers for pollen drift, and the patenting of ancient heirloom seeds. “Submarine patents” (delaying issuance to ambush mature industries) are described with the Jerome Lemelson example. Pro-IP responses typically dismiss each example with “I’m not in favor of that” without offering a coherent positive alternative. Closing and Kinsella’s Current Work The interview wraps with thanks to Kinsella. He briefly discusses his ongoing projects, including a collection of legal theory essays and a planned book on common libertarian myths and misconceptions. He also provides an update on the success of Libertarian Papers, the journal he founded in 2009. Key Resources Against Intellectual Property by Stephan Kinsella (free at mises.org) Libertarian Papers – libertarianpapers.org