Kinsella On Liberty

Kinsella on Liberty Podcast, Episode 229. This is my appearance on the Ernie Hancock "Declare your Independence" show for Nov. 3, hours 2 and 3. There is a "debate"—more of a discussion really—with libertarian-ish gun-rights author Alan Korwin in the first segment. Grok summary shownotes: [0:00–59:24] In this episode of the Ernest Hancock Show (KOL229, Nov. 3, 2017), host Ernest Hancock facilitates a heated debate on intellectual property (IP), specifically copyright, featuring Stephan Kinsella and Alan Korwin. Kinsella, a libertarian legal theorist and outspoken critic of IP, argues that copyright is an unjust state-granted monopoly that stifles innovation and free speech, rooted in historical control mechanisms like the Stationers Company and the Statute of Anne (1709). He emphasizes that ideas are not scarce resources and thus cannot be owned, drawing on Austrian economics and the nonaggression principle to assert that copying is not theft but a natural part of human learning and competition. Hancock aligns with Kinsella, expressing frustration with government-enforced IP restrictions and advocating for a decentralized, piracy-friendly internet where ideas flow freely, citing examples like Napster and crowdsourced films like Iron Sky to illustrate alternative models. [59:25–2:15:31] Alan Korwin, an author and Second Amendment advocate, defends copyright as a natural property right, arguing that creative works like songs (e.g., Chuck Berry’s “Johnny B. Goode”) are scarce, valuable, and inherently owned by their creators. He equates unauthorized copying to fraud or theft, asserting that creators deserve royalties for their work’s use, as facilitated by private organizations like ASCAP. The debate grows contentious as Korwin accuses libertarians of advocating theft due to their opposition to IP, while Kinsella counters that copyright is a statist tool, not a natural right, and that creators can profit without monopolistic protections. Post-debate, Kinsella and Hancock discuss the broader implications of IP, the rise of pirate culture, and the futility of enforcing copyright in the digital age, with Hancock inviting Kinsella to contribute to the Pirates Without Borders’ Third Letter of Captain Marque on communication and IP. They also touch on libertarian politics, criticizing the Libertarian Party’s drift and praising the growing influence of Rothbardian ideas.   Grok detailed shownotes and Youtube Transcript below. GROK DETAILED SHOWNOTES: Detailed Summary for Show Notes with Time Segments Segment 1: Introduction and Setting the Stage (0:00–14:38) Description: Ernest Hancock opens the show with a passionate rant against intellectual property, particularly patents and copyrights, which he views as government-enforced restrictions on ideas. He introduces Stephan Kinsella, a libertarian IP critic, and Alan Korwin, an author who defends copyright. Hancock frames the debate as a clash between freedom-oriented libertarians and those who support state-backed IP protections, referencing the Pirate Party and his own Pirates Without Borders initiative. Kinsella briefly defines patents (for inventions) and copyrights (for creative works), noting their historical roots and the extension of copyright terms, particularly through the Sonny Bono Act. Summary: Hancock rails against IP as a control mechanism, citing examples like patented shoe colors and the Pirate Party’s push for online freedom (0:55–2:59). Introduces Kinsella and Korwin, noting Korwin’s Second Amendment books and his recent presentation influenced by Kinsella’s anti-IP work (3:32–4:40). Kinsella explains patents (17-year term) vs. copyrights (life plus 70 years), highlighting the Founders’ 14-year copyright term and Disney’s role in extensions (5:59–8:34). Discussion of IP in trade agreements as “IP imperialism,” with Hancock questioning enforcement in places like China (8:36–9:59). Hancock mentions crowdsourced films like Iron Sky as alternatives to IP-dependent models (12:00–13:29). Segment 2: Historical Context and Copyright’s Origins (14:39–29:12) Description: Kinsella traces copyright’s history to the printing press, when the Stationers Company in England held a state-backed monopoly on publishing, controlled by the Crown and church. The Statute of Anne (1709) shifted rights to authors but favored publishers, creating gatekeepers. Hancock and Kinsella critique this as state control, with Hancock dismissing government authority over ideas. Korwin joins, defending copyright as a natural property right, arguing that creators own their works (e.g., a book written in a room) as part of a “bundle of rights” alongside realty and personalty. He challenges Kinsella’s anti-IP stance, asserting that copying is theft. Summary: Kinsella details copyright’s roots in the Stationers Company and Statute of Anne, linking it to state monopolies (15:50–18:58). Hancock rejects government’s role in regulating ideas, citing constant changes in copyright law (14:38–15:12). Korwin argues copyright is a real, protectable property right, using an exercise where attendees created copyrighted books (29:12–30:49). Korwin claims IP is as valid as land or chattel, asserting that copying a song denies creators rightful profits (30:49–31:33). Segment 3: Debate Intensifies: Property Rights vs. Ideas (29:13–49:58) Description: The debate heats up as Korwin insists that songs like “Johnny B. Goode” are unique, scarce property owned by their creators, equating unauthorized use to fraud. Kinsella counters that copyright is a state-granted monopoly, not a natural right, and that copying isn’t theft since the original creator retains their work. He argues ideas are non-rivalrous, using Austrian economics to explain that information isn’t scarce like physical goods. Hancock supports Kinsella, rejecting the need for government permission to use ideas. Korwin grows frustrated, accusing libertarians of dodging questions and advocating theft, while Kinsella emphasizes the distinction between legal and moral rights. Summary: Korwin argues “Johnny B. Goode” is scarce and valuable, owned by Chuck Berry, and copying it is fraud (41:23–42:26). Kinsella denies songs are property, as they’re non-rivalrous information, not scarce resources (48:43–49:07). Hancock rejects government’s role, arguing ideas can’t be owned and enforcement is impractical (36:06–36:59). Korwin accuses libertarians of inconsistent principles, while Kinsella clarifies copyright’s legal status vs. its injustice (43:17–45:29). Segment 4: Korwin’s Defense and Departure (49:59–1:17:42) Description: Korwin doubles down, arguing that copyright is a natural right, more real than physical property because it’s a unique creation. He cites ASCAP and BMI as private mechanisms for collecting royalties, framing copying as theft that harms creators’ earnings. Kinsella challenges this, noting that copyright restricts free speech and that piracy undermines its enforcement. Hancock mocks the idea of penalties for playing songs, aligning with Kinsella’s view that technology renders copyright moot. Korwin leaves for another commitment, reiterating that libertarians’ anti-IP stance is dishonorable, while Kinsella and Hancock plan to continue the discussion. Summary: Korwin defends copyright as a natural right, citing private royalty systems and equating copying to theft (1:08:46–1:09:25). Kinsella argues copyright stifles speech and that piracy is a positive force against statist control (1:08:30–1:09:31). Hancock emphasizes technology’s role in making copyright unenforceable, citing Napster (1:07:27–1:07:55). Korwin exits, calling anti-IP views sordid, while Kinsella invites him to stay for fairness (1:11:40–1:17:35). Segment 5: Post-Debate Analysis and Libertarian Politics (1:17:43–2:15:31) Description: After Korwin’s departure, Kinsella and Hancock analyze the debate, critiquing Korwin’s reliance on statutory law despite claiming to discuss principles. They discuss how creators like Scott Bieser shifted from pro-IP to anti-IP views after realizing piracy increases notoriety and revenue. Hancock invites Kinsella to contribute to the Pirates Without Borders’ Third Letter of Captain Marque, focusing on communication and IP. The conversation broadens to libertarian politics, with both criticizing the Libertarian Party’s drift toward statism and praising the growing influence of Rothbardian ideas. They discuss the “helicopter meme” controversy involving Hans-Hermann Hoppe and the LP’s attacks on Mises Institute figures, seeing it as a desperate attempt to suppress radical libertarianism. Summary: Kinsella critiques Korwin’s conflation of legal and moral rights, noting piracy’s benefits for creators (1:23:30–1:26:28). Hancock recounts Scott Bieser’s shift and Aaron Russo’s increased earnings from pirated content (1:24:07–1:25:26). Discussion of Pirates Without Borders, with Kinsella agreeing to contribute to the Third Letter (1:29:08–1:32:21). Critique of LP’s attacks on Mises figures, citing the “helicopter” controversy and Sarwark’s petition (1:51:29–2:00:00). Hancock and Kinsella see a cultural shift toward libertarianism, driven by consistent principles (2:05:23–2:08:23). References: Stephan Kinsella’s Against Intellectual Property (Mises Institute). C4SIF.org for Kinsella’s IP resources. Karl Fogel’s article on copyright history (questioncopyright.org, linked at C4SIF.org/resources). Pirates Without Borders (pirateswithoutborders.com) for the Letters of Captain Marque. Rick Falkvinge (falkvinge.net) on piracy and IP. Some of Ernie's shownotes are pasted below.

Kinsella on Liberty Podcast, Episode 228. This is my appearance on Lions of Liberty, Episode 318, with host Marc Clair. We discussed Hans-Hermann Hoppe's "argumentation ethics" defense of libertarian rights, and related issues. Related: “Argumentation Ethics and Liberty: A Concise Guide” (2011) and Supplemental Resources Hoppe’s Argumentation Ethics and Its Critics New Rationalist Directions in Libertarian Rights Theory, 12:2 Journal of Libertarian Studies: 313-26 (Fall 1996) Punishment and Proportionality: The Estoppel Approach, 12:1 Journal of Libertarian Studies 51 (Spring 1996). Defending Argumentation Ethics: Reply to Murphy & Callahan, Anti-state.com (Sept. 19, 2002) KOL218 | Argumentation Ethics – Patterson in Pursuit March 26, 2017 Hans Hermann Hoppe, “On The Ethics of Argumentation” (PFS 2016) Frank van Dun, “Argumentation Ethics and The Philosophy of Freedom” Kinsella, The Genesis of Estoppel: My Libertarian Rights Theory KOL161 | Argumentation Ethics, Estoppel, and Libertarian Rights: Adam Smith Forum, Moscow (2014) KOL181 | Tom Woods Show: It Is Impossible to Argue Against Libertarianism Without Contradiction The A priori of Argumention, video introduction by Hoppe Lecture 3 of my 2011 Mises Academy course, “The Social Theory of Hoppe” (slides here) Lecture 2 of my 2011 Mises Academy course, “Libertarian Legal Theory: Property, Conflict, and Society” (slides here)

Kinsella on Liberty Podcast, Episode 227. This is my appearance on Voluntary Japan Live! with host Graham Smith. We talked about ownership of thoughts, the basics of libertarian property rights and terms like ownership, mind, brain, causation, action, property, and so on, intellectual property, the nature of contracts, and, of course, the dreaded "toy helicopter" controversy! (Brent Ancap had another post about this with additional links and with an excerpt of the video dealing only with the toy helicopter part here; video here.)   From the VJ Live! shownotes on Youtube: " Streamed live 4 hours ago Libertarian IP lawyer and writer for Mises.com Stephan Kinsella joins the show tonight for a discussion on IP, ownership, and the difficult topic of the very nature of property, itself. Tonight's talk promises to be lively one, as Stephan and I do not seem to see eye-to-eye on every issue. There are many things that, I think, ought to be ironed out regarding libertarian attitudes toward IP, and the all-too-common knee jerk reactions of anarchists against things even as legitimate as voluntary terms of use contracts. Which contracts, for the record, Mr. Kinsella has stated, are indeed legitimate, if unlikely to be entered into. JOIN THE LIVE CHAT WITH YOUR QUESTIONS! SEE YOU SOON! ***LINKS*** Anarchyball Thread Post: https://www.facebook.com/Anarchyball/... “Information is not ownable. Information should not be property.” ~Stephan Kinsella debates Chris LeRoux, 22:07 https://youtu.be/wgJOeWU1Bek *** “Argumentation Ethics, Estoppel, and Libertarian Rights” Presentation (Moscow. Nov. 2, 2014) https://stephankinsella.com/2014/1... *** Mises Wire: The relation between the non-aggression principle and property rights: a response to Division by Zer0 https://mises.org/blog/relation-betwe... *** Patterson in Pursuit Podcast: " https://youtu.be/M22mq4vA4Ew

Kinsella on Liberty Podcast, Episode 226. See also PFP186. This is a short interview I did while at the 2017 Annual Meeting of the Property and Freedom Society, for Grosse Freiheit TV. Video embedded below. I think this is perhaps not my best performance, but some may find it of interest.

Kinsella on Liberty Podcast, Episode 225. This is my speech delivered earlier today at the 2017 Annual Meeting of the Property and Freedom Society, Sept. 17, 2017. Video embedded below. Slides used embedded below (or can be downloaded). Transcript below. The subsequent Q&A session for our panel is also embedded below (but not included in the audio RSS stream on this podcast feed).   Related: Kinsella, A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability, Journal of Libertarian Studies 17, no. 2 (Spring 2003): 11-37 (to be included in Law in a Libertarian World) Williamson Evers, “Toward a Reformulation of the Law of Contracts,” vol. 1, no. 1, J. Libertarian Stud. (1977) Rothbard, The Ethics of Liberty, ch. 19: “Property Rights and the Theory of Contracts” (1982; 1998) Rothbard “Justice and Property Rights,”Property in a Humane Economy, Samuel L. Blumenfeld, ed. (1974) (online here) Also in Egalitarianism as a Revolt Against Nature and Other Essays (1974) (online here) and later in The Logic of Action One Kinsella, “Justice and Property Rights: Rothbard on Scarcity, Property, Contracts…,” The Libertarian Standard (Nov. 19, 2010) Kinsella on Liberty podcast: KOL146 | Interview of Williamson Evers on the Title-Transfer Theory of Contract KOL197 | Tom Woods Show: The Central Rothbard Contribution I Overlooked, and Why It Matters More detail in my “Libertarian Legal Theory” course, Mises Academy (2011), Lectures 3-4 (see KOL118)   Transcript Reflections on the Theory of Contract by Stephan Kinsella From the 2017 Annual Meeting of the Property and Freedom Society, Bodrum, Turkey (Sept. 17, 2017) 00:00:11 STEPHAN KINSELLA: Thank you very much, Hans.  Thanks again, once again, to you and Gulcin for the invitation.  I’m honored and happy to be here.  I do believe this is my seventh or eighth time.  I figure that if I keep attending every year that, over time, my percentage rate of attendance will asymptotically approach 100%, sort of like the Bitcoin inflation rate. 00:00:36 Anyway, my topic today is reflections on the theory of contract.  I do have these slides.  I will post them later on my site when I post this talk.  And I have some background material here in the beginning and sprinkled throughout the lecture.  I was going to make a joke that Hans tends to assign me boring-sounding titles.  And I was going through some of the previous ones I’ve done here, which is on property rights and the protection of international investments, patent and copyright, corporations, legislation, and common libertarian misconceptions.  But they actually sound pretty juicy to me.  I guess I’m just a legal geek or something. 00:01:17 But anyway, when you say we’re going to talk about contract, it sounds like it’s a mundane, boring topic, but I believe this is the key, a proper understanding of contract theory is key to having a solid understanding of what libertarian principles are all about.  Libertarians usually view the libertarian theory or principle as the non-aggression principle, or the NAP.  And they’ll usually say something like the initiation of violence against others or aggression is impermissible, and they say so we’re against aggression. 00:01:55 And then they’ll just sort of throw in these other things that are sort of attached to it like ornaments to a Christmas tree.  They’ll say, and you can’t trespass, and you can’t make a threat, and you can’t breach contract, and of course, you can’t commit fraud, as if these are all implicitly part of what it means to commit aggression, and I’ll go over this later.  I think this is—we have to really understand the non-aggression principle is a shorthand for what the libertarian principles are. 00:02:23 But really, aggression is the violence against someone’s body, and all these other things are related to our property theory.  So the common understanding of contract even by libertarians is that contracts are binding promises.  You say something, and you magically create an obligation.  You make something happen.  So I’m going to give a little—I have to have one little stunt here.  I’m going to have a demonstration.  This is my magic wand from Harry Potter.  Lumos!  Okay, it’s magic, right?  The word… 00:02:59 [APPLAUSE] 00:03:01 Thank you.  The point is this is an incantation, a magic word, that made something happen in the idea of Harry Potter and magic.  And this view is similar to what—how most people think of contracts.  You say some magic words like I promise to do this, and therefore, some obligation is magically created. 00:03:23 Now, under the actual law that we’re most used to, which the two main legal systems in the world are the common law and the civil law, which is a type of Roman law.  Under the common law, contract is viewed as if there’s an offer made by someone, and then the person to whom the offer is made accepts it, so we say offer plus acceptance equals binding agreement or contract.  Okay, so A plus B equals C. 00:03:51 In the common law, this contract is only binding if there’s consideration, which means both parties have to give each other something.  However—otherwise, it’s called a nudum pactum.  Sean, I’m trying my Latin here today, or a naked promise, which means it doesn’t have enough consideration to be binding.  However, the common law treats this requirement as basically a formality because it can be something as small as, we say, a peppercorn.  Give me something tiny, which is why contracts often have $1 or $10 that is said to be paid for something large in return, even if it’s not actually paid.  They’re trying to imitate this peppercorn idea or this consideration idea. 00:04:32 The Roman law doesn’t exactly have the consideration requirement.  It’s a little bit more clean, but you need cause, which is the motivation of the parties, which has to be a legal, legitimate cause.  Okay, and before we turn to the—what I think is the correct theory of contract, let me explain in the actual law, the Roman law and also the common law to some extent.  Usually, contracts give rise to obligations, legal obligations.  These obligations are classified as two types.  They’re obligations to do and to give, obligation to do something for someone like an obligation to perform a job, to paint a house, or to sing at a concert.  Or to give means to give someone some property that you own. 00:05:17 The thing is obligations to do are always enforced with damages.  That’s monetary damages.  In other words, if you so-called breach the contract and you don’t perform what you were supposed to do, then the court, in a lawsuit, would award money damages.  They don’t make you perform the action you were supposed to perform.  That would be called specific performance.  And obligations to give something are also enforced by the court ordering you to either give money, which is a type of property, in damages or to transfer the title to the property in some cases, usually with real estate. 00:05:51 So the rule basically is that the courts will not enforce the specific performance.  They will not make you do what you’ve promised to do except in the case of real estate because land is said to be unique.  There’s no replacement for this particular parcel of land because of its location, so they will enforce that specifically, but even in that case, the court is ordering the breaching party to transfer some title to the winning party.  So in reality, all contracts are enforced ultimately by some transfer of property.  It’s never the court will force you to go sing at a concert and put you in jail if you don’t. 00:06:38 Now, the question is, why would this incantation—I hereby obligate myself to do this—why would that be legally bending?  So the law and legal theorists have offered different reasons for why this would be so, and the most common is the expectations, or reliance interests theory.  So the idea is that I promise to do something for you, and then you rely upon what I promised, and then you might change your position.  That’s called detrimental reliance.  You change your position to your detriment if I won’t perform.  So my promise has caused you to change your position relying upon my promise, and therefore, if I’m not held to do that, I’ve harmed you. 00:07:17 So that’s the typical idea that people give.  The problem is that people have pointed out that even Randy Barnett, who is a libertarian, contract law theorist as well, is that this reasoning is circular because the law always says if I promise something and if you reasonably rely upon it, then I could be prevented from denying there was a promise, or I have to follow through with it.  But this reasonable part means that there’s a circularity because it’s not reasonable to rely upon a promise unless it’s going to be legally enforceable.  So if the legal system said promises are not, by themselves, legally enforceable, then no one would reasonably rely upon that, so you see how this is sort of a circular argument. 00:08:03 Now, what’s the proper way to view contract?  The proper way to view contract is to view it as being embedded in the basic concept of libertarian property rights.  So the entire—as Rothbard pointed out, all rights are property rights because every right determines who has the right to control a given scarce resource.  A scarce resource is something that there can be conflict over, that people could have violent conflict over.  So property theory always answers the question who has the right to control this resource.  And libertarianism is simply unique in our particular set of answers to this question—who owns what? 00:08:41 So there are two basic sets of questions.  One is about human bodies, and this is what non-aggression is really about.  In the case of bodies, our answer is self-ownership.

Kinsella on Liberty Podcast, Episode 224. I was a guest on the Tom Woods show, Episode 998, today, discussing the work and theories of Hans-Hermann Hoppe. More--

Kinsella on Liberty Podcast, Episode 223. I was interviewed for the Our Interesting Times podcast, by host Tim Kelly, for the Aug. 8, 2017 episode, to discuss the basic case against intellectual property law.

Kinsella on Liberty Podcast, Episode 222. This is my second speech at last weekend's Mises Brasil's 2017 “V Conferência de Escola Austríaca” [5th Austrian School Conference], Mises Brasil, Universidade Mackenzie, São Paulo, Brazil (May 12–13, 2017): “Intellectual Property Imperialism Versus Innovation and Freedom.” The Q&A is included even though the questions are in Portuguese; most answers should make sense given the context.  This is a recording from my iPhone; video and higher quality audio will be linked later. The video is embedded here: The slides that I use are embedded below. Slides used for Mises Brasil: My original slides:

Kinsella on Liberty Podcast, Episode 221. This is my first speech at Mises Brasil's 2017 “V Conferência de Escola Austríaca” [5th Austrian School Conference], Mises Brasil, Universidade Mackenzie, São Paolo, Brazil (May 12–13, 2017): “State Legislation versus Law and Liberty.” The Q&A is included even though the questions are in Portugese; most answers should make sense given the context. This is a recording from my iPhone; video and higher quality audio will be linked later. Update: See also Legislation and the Discovery of Law in a Free Society. The Youtube is here: The slides that I use are embedded below. Slides used for Mises Brasil: My original slides: Further resources: KOL001 | “The (State’s) Corruption of (Private) Law” (PFS 2012) KOL129 | Speech to Montessori Students: “The Story of Law: What Is Law, and Where Does it Come From?” KOL199 | Tom Woods Show: The State’s Corruption of Private Law, or We Don’t Need No Legislature “Legislation and the Discovery of Law in a Free Society,” Journal of Libertarian Studies 11 (Summer 1995), p. 132.1 Condensed version: Legislation and Law in a Free Society,” Mises Daily (Feb. 25, 2010)  Is English Common Law Libertarian? (Powerpoint; PDF) Further reading: Bruno Leoni, Freedom and the Law Watson, Alan, The Importance of “Nutshells” Herman, Shael, The Louisiana Civil Code: A European Legacy for the United States Giovanni Sartori, Liberty and Law Alan Watson, Roman Law and Comparative Law The Story of Law, by John M. Zane (I haven’t finished it yet but liked what read so far) (also online) Arthur Hogue, The Origins of the Common Law Update: see Repealing the Laws of Physics, with this amusing, possibly apocryphal, anecdote: "Mr. Cole explained that to do this you would need a trunk FULL of batteries and a LNG tank at big as a car to make that happen and that there were problems related to the laws of physics that prevented them from... The Obama person interrupted and said (and I am quoting here) "These laws of physics? Who's rules are those, we need to change that. (Some of the others wrote down the law name so they could look it up) We have the congress and the administration. We can repeal that law, amend it, or use an executive order to get rid of that problem. That's why we are here, to fix these sort of issues"."

Kinsella on Liberty Podcast, Episode 220. This is my interview by Rod Rojas of the Future Gravy show, which focuses on bitcoin and blockchain topics. We discussed how patents harm innovation and various strategies some companies use to try to deal with the patent threat, such as patent pooling, defensive patent licensing, whether Blockstream's Patent Pledge is really a tactic that makes them a patent threat to the blockchain community, and related matters. The video is embedded below. Relevant material: Blockstream’s Defensive Patent Strategy: Patent Pledge EFF: The Defensive Patent License; Blockstream Announces Defensive Patent Strategy; Blockstream: Modified Innovator’s Patent Agreement; EFF: Blockstream Commits to Patent Nonaggression. Kinsella, The Patent Defense League and Defensive Patent Pooling ----, Do Business Without Intellectual Property ----, “Defensive Patent License” created to protect innovators from trolls; probably won’t work ----, Twitter Heroically Promises Not to Use Patents Offensively The Patent Pledge KOL220 | Future Gravy Interview about Blockstream and the Defensive Patent License Bitmex: A blockchain-specific defensive patent licence.