Kinsella On Liberty

Kinsella on Liberty Podcast, Episode 060. This is a Discussion of intellectual property and libertarianism on Ernest Hancock's Declare Your Independence radio show (Sep. 14, 2010). I was on the show for about two hours (hours 2 and 3 of his show) discussing intellectual property. It was a pretty wide-ranging, radical discussion, but I think I made progress with Ernie (update: I since met Ernie in person at Libertopia 2012 and we had a nice visit together). The MP3 files are on the show’s page for that day; local files: hour 1; hour 2; hour 3.

Kinsella on Liberty Podcast, Episode 059. From: Libertarian Parenting--A Freedomain Radio Conversation with Stephan Kinsella, FreeDomain Radio #1689 (Thursday, 1 Jul 2010): "Two libertarian parents discuss how to best raise confident and freethinking children, including discipline without aggression, spanking, Montessori education, resolving conflicts and teaching skepticism and rationality." See also: my TLS post Stefan Molyneux’s “Libertarian Parenting” Series; and my post Montessori and "Unschooling". n.b.: The video is down, probably as a result of Molyneux's being de-platformed.

Kinsella on Liberty Podcast, Episode 058. I appeared on the Gene Basler Show (May 30, 2010), discussing a variety of anarcho-libertarian matters–environmentalism, nuclear power, state propaganda in government schools, class action lawsuits, reparations, how to achieve an anarcho-libertarian society, animal rights, positive rights and obligations, forced heirship, and so on (an edited transcript to appear as a chapter in Gene Basler, Environmental Non-Policy: Interviews on Environment, War and Liberty, forthcoming August 2011). https://youtu.be/e6NkAno4HTA Transcript Gene Basler Show: Anarcho-Capitalist Issues Stephan Kinsella and Gene Basler Gene Basler Show, May 30, 2010 00:00:05 Gene: Welcome folks. This is Gene Basler, your host. This is episode eight of the Gene Basler Show, formerly called Anarcho Environmentalism. Today is Sunday, May 30, 2010, and I’m pleased to welcome as my guest Stephan Kinsella. Are you there, Stephan? 00:00:22 Stephan Kinsella: I’m here. Glad to be here, Gene. 00:00:24 Gene: Thanks for coming on. Let me read Stephan’s profile on Wikipedia. Kinsella is General Counsel of Applied Optoelectronics, Inc., of Sugar Land, Texas. A practicing intellectual property attorney and former adjunct professor of law at South Texas College of Law where he taught computer law, Kinsella is actively involved with libertarian legal and political theory, and is adjunct scholar of the Mises Institute, as well as the former Book Review Editor for the Institute’s Journal of Libertarian Studies. 00:00:57 He is also a contributor to the news and opinion blog at LewRockwell.com and is the creator of Libertarian Papers, a peer-reviewed online journal published under the Creative Commons Attribution 3.0 License. He writes that, after college, he “began to put more emphasis on Austrian economics and paleo-libertarian insights of Rothbard, Hans-Hermann Hoppe and Rockwell”. 00:01:23 Kinsella’s legal publications include books and articles about patent law, contract law, e-commerce law, international law and other topics. Kinsella has also published and lectured on a variety of libertarian topics, often combining libertarian and legal analysis. Kinsella’s views on contract theory, causation and the law, intellectual property, and rights theory (in particular his estoppel theory) are his main contributions to libertarian theory. 00:01:53 In contract theory, he extends Murray Rothbard’s and Williamson Evers’ title-transfer theory of contract, linking it with inalienability theory while also attempting to clarify that theory. Title-transfer theory of contract: Kinsella sets forth a theory of causation that attempts to explain why remote actors can be liable under libertarian theory. He gives non-utilitarian arguments for intellectual property being incompatible with libertarian property rights principles. He advances the discourse ethics argument for the justification of individual rights, using an extension of the concept of estoppel. Welcome to the show, Stephan. 00:02:33 Stephan Kinsella: Thanks very much, Gene. 00:02:35 Gene: Okay. Here at Anarcho-Environmentalism, we—namely I—argue that there are indeed real environmental concerns out there. We argue that air pollution, water pollution, etc., are indeed real environmental concerns, that global climate change ain’t one of ‘em, and that market and voluntary solutions are preferable to government or policy-based solutions. 00:03:18 I guess my first question for you is, as an expert in patent law, do you think the existence of patent law is really nothing more than just one more way government runs block for favored and well-connected market participants by protecting environmentally irresponsible means and methods of production? And if so, does this not logically follow that patent law harms the environment? 00:03:46 Stephan Kinsella: Well, that’s an interesting connection. I mean for years now I’ve been trying to make – trace out all the harms from patent law. Environmentalism is not one I have made yet. I could see that some arguments could be made. I do think that patent law is a type of protectionism, similar to minimum-wage law and antitrust law, sort of counterintuitively, and that they do protect the larger companies. For example, most of the smaller entrants to businesses or to new markets don’t have a large patent portfolio or the ability to get it. 00:04:28 But you get these large, established market participants; they amass large patent portfolios, and what this does is, it basically protects them from suits from each other, because if one guy sues another guy, then they could be countersued, based upon the other guy’s portfolio. So you can think of these guys as big porcupines. 00:04:50 They all have large, defensive quills, but they’re sometimes afraid to sue each other, or if they do sue each other, then they all come up with a settlement, and they cross-license to each other their patents. Of course, what this does is it lets them keep operating. Now they pay a hefty fee to do this. They pay a lot of fees to lawyers and the patent office, but they get these monopolies to practice that basically isolate and insulate this kind of cartel. A new market entrant has no protection. He has no porcupine quills, so basically, he’s at the mercy of all these established cartels. And it’s much harder to get into the new market. How this leads to environmental abuse, I’m not quite sure. I’d be open to the argument. 00:05:37 Gene: So this is why – let’s say I were to pepper my one-acre property in wind-whipped Cypress, Texas, with windmills and solar panels and back-feed it into the grid. And suddenly I would find myself providing energy for my next-door neighbor and then everyone on the street and then everyone in the HOA. They’d put a stop to me right quick, even though I wasn’t actually polluting anything. The energy companies have a monopoly on the provision of energy, is that not correct? 00:06:21 Stephan Kinsella: Well, certainly the energy market is heavily regulated, and in some ways it’s less regulated than it used to be, but certainly there’s not a completely free market in the provision of energy. So yeah, I would agree with you to that extent, that you can’t just – that’s yet another limit on the ability of small companies and small entrepreneurs to come up with new ideas and disrupt the services and to enter into these kinds of markets. 00:06:49 Gene: Okay, well, I want to say here that Block and Rothbard both posit the view that government protective legislation serves to provide a green light for industry to pollute with impunity. And this is consistent with what you say about patent law, providing similar protections. So even without any further deeper study, I do see some basic-level consistencies with those two positions. 00:07:23 I’ve got another question for you since we’re on the topic of patents. Are those people merely conspiracy theorists who claim that there are patents sitting on shelves for all manner of human-friendly and environment-friendly technologies from 200-mile-per-gallon carburetors to Teslan ionospheric energy capture technology, etc.? Are these people just conspiracy theorists, or is there, in your opinion, some substance to these claims? 00:07:53 Stephan Kinsella: Well, in a word, yes. They’re basically ignorant conspiracy theorists. I understand their skepticism. I understand their motivation to distrust the establishment and the entire patent system, but the essence of a patent is that it’s a public document. So if there’s a patent on something, you can look it up right now in the patent database. So if there were 200-mile-per-gallon carburetor inventions out there that were being kept off from market by some patent power of some patent holder, at least we would know about it. 00:08:29 Now, there is the ability of the military – the government – when you submit a patent application to the patent office, it’s done in secret. And before you can file it in another country, you have to get permission from the US government. So what they do is, you submit a patent to the government, to the PTO in D.C., Virginia area. 00:08:52 And the first thing they do is they send it to the NSA and all these secret groups, and they review it first to make sure there’s nothing really that they want to get their hands on, right? Nuclear technology or something extremely useful to the military, dangerous for other people to find out about. If they find that, which is rare, then they would send a secrecy order to the applicant and tell these guys, look, we’re taking over this idea. We’re going to pay you some money, and you have to keep quiet about it, and too bad, so sad, but thanks for filing it. 00:09:24 Now, that is really rare, but that wouldn’t be a patent; that would just be someone’s idea that the government has told them, you’d better keep this quiet, and we’re going to keep a cap on it. But the normal process is that you file the patent, you get your permission to publish from the government after it passes the review of these other agencies, and then it becomes published 18 months after you file it. And so it’s public to the world even if you don’t get a patent on it. So I think this is the type of conspiracy theory that undermines the credibility of libertarianism, in my opinion. 00:09:57 Gene: Excellent. Okay just to be clear, you’re opposed to this federal government’s first right of refusal, right? 00:10:04 Stephan Kinsella: Well, absolutely, I’m opposed to the entire patent system in the first place. I mean I’m opposed to the federal government existing. The federal government is a criminal organization. So in fact from an environmentalist point of view,

Kinsella on Liberty Podcast, Episode 057. I was on The Peter Mac Show on May 12, 2010, with my fellow Libertarian Standard co-blogger Rob Wicks. We discussed a variety of matters, including whether libertarians should use the word “capitalism,” also anarchy, IP and other topics.

Kinsella on Liberty Podcast, Episode 056. I was a guest on the May 9, 2010 episode of BlogTalkRadio’s show Anarchy Time, hosted by James Cox. Other guests included C4SS Development Specialist Mariana Evica, Wilt Alston, and Stefan Molyneux (also podcast at Freedomain Radio #1659: “The Immigration Roundtable – BlogTalkRadio with Stephan Kinsella, Wilt Alston and Stefan Molyneux: A roundtable discussion on the challenge of immigration.”)

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

Kinsella on Liberty Podcast, Episode 054. This is my speech from the Fifth Annual Meeting of the Property and Freedom Society in Bodrum, Turkey (June 6, 2010). My topic was “Ideas are Free: The Case Against Intellectual Property,” though a better title might be something like “Ideas Are Not Property:  The Libertarian IP Mistake and the Structure of Human Action.” Also podcast here: PFP064 | Stephan Kinsella, Ideas are Free: The Case Against Intellectual Property Rights (PFS 2010). The video is below; a transcript was published as a Mises Daily article: “Ideas are Free: The Case Against Intellectual Property: or, How Libertarians Went Wrong” (N.B.: there are a couple of typos in the transcript). I also participated in a Q&A Discussion Panel featuring “Hoppe, van Dun, DiLorenzo, Kinsella, Daniels, Kealey”: see PFP066 | Hoppe, Kinsella, Kealey, Van Dun, Daniels, DiLorenzo, Discussion, Q&A (PFS 2010). I discuss the conference in my post Bodrum Days and Nights: The Fifth Annual Meeting of the Property and Freedom Society: A Partial Report. https://youtu.be/zLYXxf1bosA

Kinsella on Liberty Podcast, Episode 053. Author’s Forum: Property, Freedom and Society, Austrian Scholars Conference (March 11, 2010). This is from a short speech at the Austrian Scholars Conference 2010, "Authors Forum: Property, Freedom and Society" about Property, Freedom and Society: Essays in Honor of Hans-Hermann Hoppe (Mar. 11, 2010).

Kinsella on Liberty Podcast, Episode 052. I was a guest recently on the Renegade Variety Hour , discussing a variety of libertarian issues with hosts Carlos Morales and Taryn Harris (May 8, 2013), including argumentation ethics and estoppel (see Argumentation Ethics and Liberty: A Concise Guide), atheism, and related matters.

Kinsella on Liberty Podcast, Episode 051. This is a short, informal discussion with a good friend of mine, patent attorney Mark Gilbreth (email). A fairly a-libertarian and a-political type, we talked about some of the practical and political aspects of patent law practice. Mark is an experienced chemical engineer-specialized patent attorney (I am electrical). We met in 1998 when we both were adjunct professors at South Texas College of Law. We recorded this while walking to lunch from my house. Yes, there are traffic noises and leaf-blowers--the sounds of civilization. https://youtu.be/qe0qiIE-1fk