Kinsella On Liberty

Kinsella on Liberty Podcast, Episode 290. This my appearance on the Liberty412 podcast, with host Mike Cuneo. We discussed a variety of topics, from the philosophy of property rights and the problem with IP, to coronavirus, racism, the prospects of liberty and anarchy, activism, and the like. We also detour into other issues like the Fermi Paradox and theories about the Industrial Revolution.

Kinsella on Liberty Podcast, Episode 289. [Update: Transcript appended below] This is my appearance on the Scottish Liberty Podcast from May 30, 2020, with hosts Antony Sammeroff and Tom Laird. We discussed IP and related matters, including Sammeroff's recent debate on the topic of IP with pro-IP Randian law professor Adam Mossoff. See various links, embeds, notes below. This was the second take, and entitled "A Sober Conversation with Stephan Kinsella...," because we had previously recorded a discussion on May 24, 2020, in which I was a bit drunk and went off on a rant. The episode was entitled "Under the Influence... of Stephan Kinsella... Against Intellectual Property". We then recorded this current episode on May 30, 2020. [Update: I recently (March 2021) realized I never posted the initial episode, so have just posted it as KOL326 | Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 1: Under the Influence…] See various links, embeds, notes below. Youtube of the current discussion: Youtube of the initial discussion, now posted at KOL326: Antony's previous debate with Mossoff: In his remarks, Mossoff mentioned this paper by Stephen Haber as supporting the empirical case for patents (funny, I thought the Objectivists had principles): Stephen Haber, "Patents and the Wealth of Nations," 23 Geo. Mason L.Rev. 811 (2016). I have read through it as much as I can stand and provide my critical commentary here:  “The Overwhelming Empirical Case Against Patent and Copyright”--see in particular note 3 and accompanying text. ❧ Transcript Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 2: A Sober Conversation With Stephan Kinsella (May 30, 2020) [Transcript of "Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 2: A Sober Conversation (May 30, 2020)] 00:00:01 ANTONY SAMMEROFF: Greetings people of planet Earth.  It must be episode 156 of the Scottish Liberty Podcast with me, Antony Sammeroff, and that ranty, ranty man, Tom Laird, back with us again. 00:00:15 TOM LAIRD: Thank you. 00:00:15 ANTONY SAMMEROFF: Sorry. 00:00:16 TOM LAIRD: I’m free. 00:00:17 ANTONY SAMMEROFF: He’s free.  The excellent, the extraordinary Stephan Kinsella.  Don’t mispronounce it Stephen.  Don’t be that guy.  Don’t be that guy.  Only an idiot would do that.  Thank you for joining us. 00:00:33 STEPHAN KINSELLA: Glad to be here with all four of us.  You said there was you, Antony Sammeroff, Tom, and me, so that’s four. 00:00:39 ANTONY SAMMEROFF: Excellent. 00:00:41 STEPHAN KINSELLA: I only see three people though. 00:00:43 ANTONY SAMMEROFF: So we’re going to talk about – you only – for those tuning in on Facebook and YouTube see that I kind of look weird because I’m trying this digital background.  But Zoom thinks that my face is part of the background, so I look… 00:00:57 STEPHAN KINSELLA: I think you’re triggering a lot of light-epilepsy people right now. 00:01:00 TOM LAIRD: I think it’s because your head looks like a planetoid. 00:01:02 00:01:04 ANTONY SAMMEROFF: I am the moon, the orbits, the Earth. 00:01:07 STEPHAN KINSELLA: He looks like a Marvel character like Ego the Living Planet or something. 00:01:12 ANTONY SAMMEROFF: So I guess we’re going to talk about IP and stuff like that. 00:01:17 TOM LAIRD: Whoa. 00:01:17 ANTONY SAMMEROFF: That’s crazy.  As some people know, probably heard a couple of weeks ago, I was debating this Adam Mossoff guy.  And there may have been some conversation that we had once before, but we don’t talk about that anymore because… 00:01:32 TOM LAIRD: Did he laugh at any point during the… 00:01:34 00:01:37 ANTONY SAMMEROFF: But let’s just say that there were some things that could have been said in that discussion that we never speak of – we don’t talk about anymore that weren’t discussed.  So I guess a good place to start would be what – you said one of the things annoying about Adam Mossoff is he never actually defines IP. So what – how would you – how do you define IP? 00:02:02 STEPHAN KINSELLA: Well, so this is – all right, the definition is intellectual property refers to a set of legal rights that – it’s like an umbrella term that covers four or five different types of statutory – mostly statutory rights, which are all not really related.  So it basically just is a term that people came up with to lump together some different types of law like the patent system, which covers inventions, and the copyright system, which covers artistic and creative works, and then the trademark system, which covers sources of goods and names, brand names, things like that, and then the trade secret system, which has some rights related to keeping secrets that you want your employees not to tell other people, things like that, and then maybe one or two other special things in modern times. 00:02:57 So they’re always – in a way they’re loosely related, and the reason the term bothers me is because it’s a propaganda term.  It was a new term that was invented I think in the 1800s when these new statutory systems, which were independent, the patent system and the copyright system, say, in the US, 17—I think—90, right after the Constitution – the US Constitution was ratified in 1789.  The very next year the Congress started enacting patent and copyright laws.  And they were thought of and characterized as monopoly privilege grants, and some people were in favor and some were opposed.  But no one had any doubt that they were just special monopoly privilege grants by the state for a particular purpose to incentivize innovation or something like that, which is why they only lasted in the beginning for about 14 years, like a finite time. 00:03:59 They were temporary things sort of like infant industry protections or tariffs, how they protect local industries.  No one thinks of these things as natural rights or property rights.  So then the free market economists in the 1800s started getting alarmed at the rise over the world, in the modern world, of the prevalence of patent and copyright, these monopoly privileges.  And so the people that were entrenched in industries depending upon these by now, the publishers, inventors of light bulbs, and these kind of new industries, things like this – they started defending these systems not on the utilitarian grounds, which is really the main justification given, but saying that, oh no, they’re not artificial monopoly privileges because everyone was getting skeptical of monopolies, even natural monopolies or free market monopolies or government-granted monopolies, whatever. 00:05:06 So they didn’t want to call them monopolies.  They didn’t want to call them what they are, which is government-granted privileges.  So they started calling them – they said, no, they’re property rights, and everyone said, well, if it’s a property right, as Antony pointed out in his opening comments in the debate, there’s not a scarcity thing.  Like there’s not a possibility of conflict.  Anyone can use these ideas at the same time, so how is it a property right, and why does it only last for 17 years, 14 years?  And nowadays copyright has been extended from the original 14 years to 100+ years.  It’s crazy. 00:05:43 TOM LAIRD: Wow. 00:05:43 STEPHAN KINSELLA: Why would – if it’s a property right, why would it expire at a certain arbitrary time?  And so the counter to that was, well, it’s a property right, but it’s a special type of property right.  It’s an intellectual, so they added the word intellectual to explain why it’s different and it has to be treated differently in the law.  But they want to call it a property right, which Mossoff did repeatedly.  He just kept saying it’s a property right because you can license it.  It has an economic value.  You can sell it.  But that is just not an argument for why the law is a good idea.  I mean you could – I mean honestly you could make the same argument about child slavery in the antebellum south in America. 00:06:25 ANTONY SAMMEROFF: That’s a good example. 00:06:26 STEPHAN KINSELLA: They were – slaves were property.  They could be traded.  They had a market value.  They contributed to the operation of plantations.  And you could ask all kinds of questions like instead of coming up with an argument justifying slavery and instead of responding directly to someone who explains why slavery is immoral and wrong, you could just come up with a fake rhetorical question.  And you could say but who would pick the cotton, which is not really a sincere question because that’s not really what they’re asking. 00:07:05 If you say, but who would pick the cotton, what you’re really saying is we all take it for granted that the cotton has to be picked.  That’s our ultimate value, so whatever you propose, you’re going to have to guarantee that the cotton will be picked.  So unless you can prove to me that the – your free market system abolishing slavery is still going to result in cotton being picked, you haven’t satisfied your burden of proof to me to get rid of slavery, which is exactly what Mossoff and these guys are saying when they say things like, well, how would you have – how would a novelist make money?  How would a pharmaceutical company recoup their cost without IP law?  So they ask this question, but the question is a loaded question because it takes for granted some assumptions that I don’t share and that free market economists don’t share because we don’t think there’s a guarantee to a profit, and there’s no guarantee to recoup the costs of your investment.  I mean what the hell is that?  So one reason, and my last thing, and I’m going to stop – shut up in a second because I talked over you guys, and I ranted.  I kept changing my subject many times.  I was so irritated because… 00:08:18

Kinsella on Liberty Podcast, Episode 288. Installment #2 in my impromptu Zoom session with whoever wanted to join. Got a bit more hang of how to record everyone in gallery mode, and so on. As last time, just a few of us talking random libertarian topics. Next time will give more advance notice and maybe have a slightly bigger audience.

Kinsella on Liberty Podcast, Episode 287. I decided to try an impromptu Zoom session with whoever wanted to join, in part to test Zoom and my tech skillz. Just a few of us talking random libertarian topics. No big whoop. May make this a more regular thing once I get the hang of it.

Kinsella on Liberty Podcast, Episode 286. This is my umpteenth appearance on The Tom Woods Show, "Ep. 1629 Kinsella on the Coronavirus, His Road to Libertarianism, and the Good and Bad in Ayn Rand". From Tom's show notes: Libertarian legal theorist Stephan Kinsella and I discuss his road to libertarianism (of the Rothbardian kind), where he thinks we need more work, the rights and wrongs of Ayn Rand, and more. And yes, some discussion of the virus…. Related links: How I Became A Libertarian The Superiority of the Roman Law: Scarcity, Property, Locke and Libertarianism The Greatest Libertarian Books Hans-Hermann Hoppe on Anarcho-Capitalism Kinsella et al., International Investment, Political Risk, and Dispute Resolution (Oxford, 2020) KOL197 | Tom Woods Show: The Central Rothbard Contribution I Overlooked, and Why It Matters (contract theory) The Genesis of Estoppel: My Libertarian Rights Theory New Publisher, Co-Editor for my Legal Treatise, and how I got started with legal publishing.

Kinsella on Liberty Podcast, Episode 285. I appeared today on the Disenthrall.me Youtube channel, host Patrick Smith, to discuss libertarian contract theory (Contracts with Stephan Kinsella). We talked about the standard legal view of contracts, the Rothbard-Evers title theory of contract, applications such as bitcoin "smart contracts" and intellectual property, the idea of breach of contract, liquidated damages clauses, and so on.  (I was previously a guest -- KOL264 | Disenthrall: Stephan Kinsella on Tim Pool Subverse and Trademark.) From Disenthrall's shownotes: "In response to a viewer request we bring you a deep dive into Libertarian contract theory. What are contracts? Why are contracts? What are NOT contracts?" Patrick is apparently taking over Anarchast, on which I've been a guest in the past, so we may be doing an episode on that channel soon. Related links: Kinsella, A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability, Journal of Libertarian Studies 17, no. 2 (Spring 2003): 11-37 Kinsella, Reply to Van Dun: Non-Aggression and Title Transfer, Journal of Libertarian Studies, Volume 18, no. 2 (Spring 2004) Kinsella, Justice and Property Rights: Rothbard on Scarcity, Property, Contracts…, Libertarian Standard (Nov. 19, 2010) Rothbard, Property Rights and the Theory of Contracts Evers, Toward a Reformulation of the Law of Contracts KOL225 | Reflections on the Theory of Contract (PFS 2017) KOL146 | Interview of Williamson Evers on the Title-Transfer Theory of Contract KOL020 | “Libertarian Legal Theory: Property, Conflict, and Society: Lecture 3: Applications I: Legal Systems, Contract, Fraud” (Mises Academy, 2011)

Kinsella on Liberty Podcast, Episode 284. This is my discussion about patent and IP policy with a fellow patent attorney, Russ Krajec, who produces the "Patent Myth Podcast". I tried to persuade him patents are evil, or at least, understand why he doesn't agree. He is kinda clueless. See also “Investment Grade Patents are not for Rent Seeking … They are for business negotiations”. Related resources: KOL209 | Trying to Persuade a Patent Lawyer that IP Law is Evil KOL 051 | Discussion with a Fellow Patent Attorney Are anti-IP patent attorneys hypocrites? (April 22, 2011) Is It So Crazy For A Patent Attorney To Think Patents Harm Innovation? (Oct. 1, 2009) Patent Lawyers Who Don’t Toe the Line Should Be Punished! (Sep. 29, 2009) The Most Libertarian Patent Work (July 14, 2009) An Anti-Patent Patent Attorney? Oh my Gawd (July 12, 2009) Patent Lawyers Who Oppose Patent Law Pro-IP “Anarchists” and anti-IP Patent Attorneys

Kinsella on Liberty Podcast, Episode 283. This was my Webinar presentation at the Freedom Hub Working Group, Has Intellectual Property Become Corporate Welfare? (Wed., Feb. 19, 2020), organized by Jeff Kanter and Charles Frohman. From their shownotes: "Despite two decades of IP law practice for Big Oil and other clients, Stephan Kinsella earlier had been exposed to the great Murry Rothbard (en.wikipedia.org/wiki/Murray_Rothbard) and wasn’t convinced the ancient property rights philosophy had room for intangible ideas - that maybe, he was in the middle of a gross example of corporate welfare that was killing entrepreneurship. Founder and Director of the Center for the Study of Innovative Freedom, former adjunct professor at South Texas College of Law, and author of “Against Intellectual Property” and “Law in a Libertarian World: Legal Foundations of a Free Society”, Stephan will present “Property Rights versus Intellectual Property”, and apply that lesson to how crony corporations abuse IP to squash competition and suppress innovation - with Big Pharma and the China “IP theft” as examples." The youtube and slides are streamed below. For related material, see my recent episode KOL282 | No, China Is Not “Stealing Our I.P.”

Kinsella on Liberty Podcast, Episode 282. From Free Man Beyond the Wall, Ep. 379, with host Pete Quinones: Episode 379: No, China Is Not 'Stealing Our I.P.' w/ Stephan Kinsella Feb 19, 2020 66 Minutes Suitable for All Ages Pete invited Stephan Kinsella to return to the show. Stephan is an American intellectual property/patent attorney, author, and anarcho-capitalist. Pete asked Stephan to come on and share his opinion that China is in fact, NOT "stealing our I.P." Stephan gives a primer as to why intellectual property laws are immoral and devious and explains in detail the issue with I.P. and China. Stephan's Anti-IP Books and Articles Stephan's Articles and Speeches The Case Against I.P. 0 A Concise Guide How I.P. Hampers the Free Market The I.P. Commission USTPO and Commerce Dept. Distortions: I.P. Contributes 5 Trillion and 40 Million Jobs to the Economy The Mountain of I.P. Legislation Susan Houseman on Manufacturing - EconTalk Independent Institute on the "Benefits of Intellectual Property Link to Richard Grove's Autonomy Course TakeHumanAction.com Donate at the Libertarian Institute Pete's Link to Sign Up for the LP Lions of Liberty Podcast Pete's Patreon Pete's Books on Amazon Pete's Books Available for Crypto Pete on Facebook Pete on Twitter Below are some comments related to this topic which I sent a friend who had some questions about this issue: *** Here are my thoughts on this matter. I've been thinking about, discussing, and wrestling with these issues for many months now. I have yet to read or speak to anyone who satisfies me that they have "the whole picture" so I have been forced to work without net, mostly. First. Let's understand the basic background of American IP law--mostly, patent and copyright, but sometimes also less impactful variants such as trademark and trade secret (I would count defamation law too, but most legal scholars don't seem to see the connection). Copyright is rooted in censorship, and today is entrenched primarily in industries that think they rely on it--namely, the music and movie industry. Software is now also covered by copyright but oddly many software systems intentionally opt out of copyright through the use of various licenses. In any case, the publishing, music, and movie industry, the latter two largely based in the US, are huge lobbying forces to maintain or expand US copyright law--both domestically (such as with continual lobbying "by Disney" to keep expanding the term of US copyright, to keep Mickey Mouse from becoming public domain, such as with the Sonny Bono copyright term extension at in the 90s --to the point where copyright, originally 14 years [the term of two consecutive apprenticeships] is now life of the author plus 70 years--usually well over a century. And, they also push for the US to use its hegemony to force other companies to ratchet up their IP law to match US terms etc. Case in point: the US told Canada it couldn't participate in the TPP negotiations unless it increased its copyright terms, and Canada did so, by 20 years (in selected cases). Just for the privilege of negotiating in the TPP--which Trump nixed... Similar things have happened with patent, which originated as crown-granted protectionism. Now many industries lobby to keep patent law alive too. Most of this lobbying pressure comes from US industries or western industries, such as hollywood and music and publishing houses in the case of copyright, and pharmaceutical industries in the case of patents. Even some Cato scholars were opposing free trade with Canada a decade or so ago--namely, the "reimportation" of drugs from Canada since they are sold at a lower price there, due to Canadian government price caps, and reimporting them back into the US would undercut Big Pharma's ability to sell at a high monopoly price in the US market. The whole thing is absurd. In any case, the other background to understand, is this. Free trade is one thing; foreign direct investment is another. To have free trade between countries merely requires lowering tariffs. This has happened in fits and starts via managed trade, as you no doubt know, since WWII, including the WTO, NAFTA, and various trade agreements. One can argue whether this is good or bad. I think it's good, since it has resulted in more transnational free trade and lower overall trade barriers, since WWII, even though it's managed trade and not as free as it could be. But the point is, the alleged purpose of such agreements is to mutually lower tariffs. It's *NOT* about internal property rights policies--those are domestic matters that have little to do with international trade per se. And many of these trade agreements are in fact negotiated privately (in secret) and finally the details are released and the agreements are confirmed, as with the recent USMCA. Not in recent decades the US and other western powers have adorned these agreements with conditions like internal labor standards and environmental standards and so on, but this is just the messy business of trade negotiations. But the point is: the main purpose of trade agreements has to do with tariffs imposed by each state on the others' imports. Of course you and I prefer lower tariffs, or no tariffs, and oppose managed trade, but still. If it results in more free trade, you could argue this is an improvement. On the other hand countries have long represented their own nationals or citizens when they are treated in some ways by foreign governments--in particular, if a large western corporation invests in a developing economy, there is a danger of various forms of expropriation. I dealt with this in some books, including the one forthcoming next month from Oxford. (http://www.kinsellalaw.com/iipr/ ) Sometimes countries have have treaties with each other to deal with this issue--FCN (friendship, navigation, commerce) or other treaties, "bilateral investment treaties" (BITs), and so on. The point of these is to try to make each party (each host state) treat the other state's nationals with some minimum standards, if they do business in or invest in that state. For example a US BIT with Brazil might try to prevent Brazil from nationalizing or expropriating an Exxon refinery operating in Brazil, without due process and paying just compensation. These agreements sometimes overlap with trade agreements, but their purpose has to do with the internal property rights law of the member states. And these agreements are usually negotiated by the State Department, in the open, not secretly. There is a model BIT that the US tries to use, for example. And it is true that in many of these agreements, as with trade agreements, with NAFTA, with WTO, with the new USMCA, with the aborted TPP, and so on--various IP provisions are snuck in. In the former agreements, it's done under the guise of property rights, since the common misconception in the west is that IP rights are part of property rights. So Brazil has to respect not only Exxon's physical property rights but its trademarks etc--under the investment treaties. Under trade agreements, just as Brazil (and China etc.) are expected to agree to ratchet up their minimum wage laws, and other laws like environmental, child trafficking, and even IP law--as the price of getting a free trade deal. So I call this IP imperialism, and it's a way that both trade and investment treaties/agreements are used to slowly push US style IP law onto other countries. In the meantime, we often hear claims that China doesn't enforce IP law as well as the US does--that "piracy" is "rampant". Now China does have patent and copyright law, and agrees by virtue of various treaties, such as those mentioned above, and IP-specific ones such as IP related aspects (TRIPS) of GATT and WTO things--it has agreed to have local law respect patent and copyright law to a certain degree. This is also part of some treaties such as the Paris Convention (patents), the Patent Cooperation Treaty, the Berne copyright convention, and also the Madrid Protocol (trademarks). Now no countries enforce IP law perfectly just as drug laws are never enforced perfectly. There might be "more" "piracy" in China but China has an IP system, like the US does.  [See The Mountain of I.P. Legislation] The point here is this: when China is more lax or allows more piracy of IP law, it is NOT IP theft of US corporations; it is ONLY a violation of their own local law. I bring this up because nowadays, as a backdrop to Trump's trade negotiations with China, you will often hear complaints that "china steals US IP". I think part of this complaint simply has to do with the fact that DVD piracy etc. is more rampant in developing countries, and in fact in most non-US countries, simply b/c the system is still developing, the people are poorer, or it's becoming easier to pirate (with technology), and so on. But while international treaties and organizations like GATT/WTO are often used to try to pressure less draconian states to become more US-style draconian in their copyright and patent enforcement, in my view, as far as I can tell, this has almost nothing to do with the current trade negotiations and complaints that China is "stealing US IP". From my reading on this and discussions with people, as best I can tell, when people complain about China's stealing IP from US companies, and wanting this remedied by China in the current trade agreement talks--they are talking about something totally unrelated to "piracy" or China's copyright terms not being as long as the US terms. I think what they are talking about is "forced technology transfers." This is why I mentioned above the distinction between trade and investment agreements. The former, which is presumably what Trump is trying to negotiate with China, has to do with tariffs, with trade.

Kinsella on Liberty Podcast, Episode 281. This is my appearance on the Death to Tyrants Podcast, Episode 90: Against Intellectual Property, with Stephan Kinsella (Facebook post), released Feb. 3, 2020, with host Buck Johnson. (I was previously a guest back in 2018--see KOL252 | Death to Tyrants Podcast: Human Rights, Property Rights and Copyright.) From the Shownotes: This week, I feature my interview with Stephan Kinsella, the foremost expert on the topic of "intellectual property". Can you own an idea? How about a word? A pattern of words? How about a color? Stephan Kinsella is here to explain why intellectual property is illegitimate. This episode will cause you to think seriously about the topic. Give it a listen. I think you'll enjoy it!