KOL038 | Debate with Robert Wenzel on Intellectual Property

Kinsella on Liberty Podcast, Episode 038. [Update: see my post Wenzel the Werewolf; and Robert Wenzel,  "Kinsela [sic] Constantly Insulted Me, Interrupted Me and Broke His Agreement.", Economic Policy Journal [sic] (May 5, 2014); and idem, "Is This What Kinsella Was Afraid Of?", Economic Policy Journal [sic] (May 6, 2014)] 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. (( 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. )) The transcript is available here. 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?). At another point Wenzel, going back and forth on whether Rothbard did, or did not, support IP, or patent, or copyright—yes he did, wait, no he didn't, well not copyright like today, but copyright like in 1962, but private copyright, not legislated copyright, and copyright that somehow includes patents, though he mounted a great case against patents.... duuuuuhhh who knows what Wenzel thinks Rothbard thought about patents (and why is this relevant in a discussion of whether IP is legitimate?)—Wenzel says Rothbard believed in perpetual copyright, something I found amusing since this is what the absurd Galambos and Spooner believed in, and whatever Rothbard thought about IP, he was an opponent of the traditional concept of IP and patent and state-legislated copyright. Wenzel finds a quote from Rothbard about perpetual copyright, but of course Rothbard was talking about his contractual "copyright" which is not the same as the IP protected by modern systems (I tried in vain to explain the difference between in rem property rights and in personam contract rights, since the latter are only private agreements between a small group of people and do not affect third parties, unlike in rem or real property rights, which is what real IP advocates want IP to be; meaning you cannot create property rights like IP rights, out of contract rights; but Wenzel was uninterested in serious dialogue). Wenzel basically is arguing here: "ha ha, look at Kinsella, he does not have the Boldrin and Levine paper memorized, or every word of Rothbard, so he is a shoddy thinker! Therefore, IP is legitimate!" And this, ladies and gents, is what passes for an attempt to argue for IP: bluster, bravado, circular reasoning. I have yet to see a good argument for it and Wenzel did not offer one. (Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012); There are No Good Arguments for Intellectual Property.) I asked him a dozen time to give me his view on IP and he kept promising to do it later; 1.5 hours in it became obvious he would continue to stonewall, and to try to read boring quotes from my footnotes (snore), so I tried to state his position for him, which he basically agreed with. His argument is what he imagine's some version of Rothard's to be: that you can sell ideas, they are "scarce," so you can own them. Wow! No one has ever grappled with this brilliant insight before, Wenzel! Another bizarre attack was his reading of a Hoppe quote on epistemology and demanding to know if I still agree with the Misesian approach to epistemology; yes, I said. Aha! he pounced—but if you are not a utilitarian WHY DO YOU POSITIVELY CITE BOLDRIN AND LEVINE!! It is positively bizarre. As if showing that utilitarian arguments for IP fail even on their own term is somehow becoming a utilitarian. It's an incredibly stupid argument. Ultimately the "debate" was pointless because Wenzel does not know how to engage in subtle discussion, he engages in question-begging repeatedly, he engages in bizarre ad hominem and tangential arguments, he refuses to define terms and seems unable to engage in clear, analytical reasoning. Honestly, he seems to have no clear position at all on IP, so it's kind of a mystery why he is so invested in it at all, so passionate about it, so hostile to my views.