Kinsella On Liberty

Kinsella on Liberty Podcast, Episode 040. [Update: KOL186: Great IP Debate with Baker-Kinsella] This is a discussion about IP with a fellow Austro-anarchist libertarian, Alexander Baker, who initially accepted the anti-IP argument I and others have made, but who has since moved to a type of pro-IP position. We had a few email discussions in recent months about this, but I was unable to persuade him that his approach was misguided. We decided to have a (friendly) discussion about it. Baker calls his theory "intellectual space" and has a new blog devoted to this "libertarian theory of intangible property"; he sketches his position in his post Intro to Intellectual Space. We had a very interesting, civil discussion, which is rare for discussions with IP advocates (see, e.g., KOL 038 | Debate with Robert Wenzel on Intellectual Property). Baker was honest and forthright, willing to admit what he is not yet sure about; he admitted his own bias for IP given that his career (as a musical composer) depends in part on IP protection. He admitted the burden of proof is on IP advocates, and I believe he would not disagree with me that many advocates over the years have offered weak arguments. I don't agree with Baker, in the end. His argument seems to me to be based on analogies: an idea or recipe can play a role in production "similar" to how scarce means can, and thus can be exploited, owned, etc. However, he came across to me as sincere and searching for truth, which I can appreciate. Listen and judge for yourself. https://youtu.be/2VRnZrShI6k Update: Here is a previous discussion on this topic between Baker and Stefan Molyneux:

Kinsella on Liberty Podcast, Episode 039. I was a guest recently on the Renegade Variety Hour (discussing intellectual property and other issues), with hosts Carlos Morales and Taryn Harris (recorded April 5, 2013, podcast April 10, 2013). I met them at the recent Liberty in the Pines conference and was happy to talk with them.

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.

Update: Libertarian and Lockean Creationism: Creation As a Source of Wealth, not Property Rights; Hayek’s “Fund of Experience” A Recurring Fallacy: “IP is a Purer Form of Property than Material Resources” Related: Isaiah Berlin on Locke, Karl Marx and the Labor Theory of Value Locke, Smith, Marx; the Labor Theory of Property and the Labor Theory of Value; and Rothbard, Gordon, and Intellectual Property KOL037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory Rothbard on the Main Fallacy of our Time: Marx’s Labor Theory of Value Kinsella on Liberty Podcast, Episode 037. [Transcript.] I spoke last weekend at the "Liberty in the Pines" (facebook event) conference at Stephen F. Austin State University, in Nacogdoches, Texas. (See “Locke’s Big Mistake: How the Labor Theory of Property Ruined Economics and Political Theory,” Liberty in the Pines Conference (March 2013).) Sponsored by the Young Americans for Liberty chapter and the Charles Koch Foundation, this one-day event brought together liberty-lovers of all stripes from surrounding areas. My speech was "Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory." Stefan Molyneux and Jeff Tucker appeared and delivered speeches as well (with Jeff's inspiring keynote resulting in a resounding standing ovation). Walter Block conducted an "Ask a Libertarian" Q&A session (remotely), and relative newcomer Jessica Hughes delivered a surprisingly radical and resounding speech on "The Constitution of Faux Authority." Update: See Liberty in the Pines Roundup. This podcast episode includes my speech and Q&A (about 54 minutes) plus the panel Q&A (about another 50 minutes). The panel Q&A touched on issues like peaceful parenting, spanking, and so on. Not to toot my own horn, but I know I have a lot of a/v material out there, so I do believe this speech of mine is one of the most important I've ever done. Grok shownotes: In this lecture from the Libertarian Papers Audio Series, recorded circa 2010, titled “Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory,” Stephan Kinsella critiques John Locke’s labor theory of property, arguing it introduced a metaphorical and imprecise framework that has distorted political and property rights theory (0:00-5:09). Kinsella, a libertarian patent attorney, contrasts Locke’s idea—that mixing labor with unowned resources creates property rights—with the libertarian homesteading principle, which emphasizes first use or appropriation without requiring labor (5:10-15:14). He contends that Locke’s labor metaphor fosters confusion, notably contributing to the flawed concept of intellectual property (IP), which wrongly treats non-scarce ideas as ownable, and connects this to broader errors like the labor theory of value that influenced Marxism (15:15-25:24). Kinsella’s analysis highlights how imprecise language, such as “owning labor,” has led to significant theoretical missteps. Kinsella further explores the consequences of Locke’s labor theory, illustrating how it underpins misguided arguments for IP by equating mental labor with physical labor, thus justifying monopolies over ideas (25:25-35:34). He clarifies that property rights arise from scarcity and first use, not labor, using examples like homesteading land versus creating a poem, and critiques related metaphors like “selling labor” in contracts, which he reframes as conditional title transfers (35:35-45:44). In the final segment, Kinsella advocates for a first-use-based property theory to eliminate IP and align with libertarian principles, addressing objections like voluntary slavery and emphasizing clear language to avoid metaphorical traps (45:45-55:54). He concludes by rejecting attempts to tie Locke’s theory to IP, urging libertarians to abandon labor-based property notions for intellectual freedom and market efficiency (55:55-56:05). This lecture is a rigorous critique of a foundational philosophical error, relevant to liberty and property rights debates. Grok detailed summary below. Update: Several favorable comments: e.g. "It is a shame how few views this has. I use this video often to help libertarians understand the trap of "self ownership" and I am so glad, now years ago, you fixed this for me in our interview", "Stephan, this talk is gold. Sharing.", "This was really helpful. I appreciate and enjoy Kinsella's focus on using language precisely." Update: See Stephen Decker's report on the event. Update: See also Hoppe on Property Rights in Physical Integrity vs Value, discussing International News Service v. Associated Press, 248 U.S. 215, 246 (1918), where the Supreme Court recognized a quasi-property right in the fruits of one’s labor, what is sometimes called the “sweat of the brow” doctrine (a doctrine later rejected in the copyright context in Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). For some background on some of the issues I discussed, see: Hume on Intellectual Property and the Problematic “Labor” Metaphor Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and "Rearranging" "Locke, Smith, Marx and the Labor Theory of Value," Mises Economics Blog (June 23, 2010) (archived comments) “What Libertarianism Is” “How We Come To Own Ourselves" "Montessori, Peace, and Libertarianism" John Bremer, “Education as Peace” Update: The YouTube at the bottom had inferior audio to the podcast version that I recorded using the iPhone in my pocket. The YouTube immediately below incorporates the superior audio track (thanks to Manuel Lora). Original YouTube, with inferior audio: https://youtu.be/-5H6Ehv5fTM?si=8GhIFR7u8byIFYC3 GROK SUMMARY Bullet-Point Summary for Show Notes with Time Markers and Block Summaries Overview Stephan Kinsella’s lecture, part of the Libertarian Papers Audio Series (circa 2010), titled “Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory,” critiques John Locke’s labor theory of property for introducing metaphorical confusion that has distorted political philosophy, particularly through intellectual property (IP). Using Austrian economics and libertarian principles, Kinsella argues that property rights stem from scarcity and first use, not labor, and advocates for clear language to avoid errors like IP and the labor theory of value. The 56-minute talk uses examples and theoretical analysis to propose a first-use-based property system. Below is a summary with bullet points for key themes and detailed descriptions for approximately 5-15 minute blocks, based on the corrected transcript at the provided link and the raw YouTube transcript with time markers. Key Themes with Time Markers Introduction and Locke’s Mistake (0:00-5:09): Kinsella introduces Locke’s labor theory as a significant error in political philosophy, relevant to liberty (0:21-1:54). Libertarian Property Framework (5:10-15:14): Contrasts Locke’s labor theory with libertarian homesteading, emphasizing first use and scarcity (1:54-12:21). Labor Theory’s Flaws and IP (15:15-25:24): Critiques Locke’s metaphorical labor ownership, linking it to IP and the labor theory of value (12:21-21:26). IP and Creation Misconceptions (25:25-35:34): Argues that labor-based IP justifies monopolies, clarifying property as first-use-based (21:26-31:03). Contract and Labor Metaphors (35:35-45:44): Reframes “selling labor” as title transfers, rejecting labor as ownable (31:03-41:12). Correcting Locke’s Error (45:45-55:54): Advocates a scarcity-based property theory to eliminate IP, addressing objections like voluntary slavery (41:12-51:21). Conclusion and Locke’s Legacy (55:55-56:05): Rejects Locke’s labor theory and IP, urging clear libertarian principles (51:21-56:05). Block-by-Block Summaries 0:00-5:09 (Introduction and Locke’s Mistake) Description: Kinsella opens with a humorous tone, introducing the lecture at a post-lunch event and framing John Locke’s labor theory of property as a “big mistake” that has “ruined political theory” (0:21-0:50). He contrasts his thesis with Ayn Rand’s view of Kant as history’s most evil man, noting Locke’s contributions but identifying his labor metaphor as a source of confusion (0:51-2:00). Kinsella highlights the dangers of metaphorical language in libertarianism, citing Supreme Court Justice Cardozo and Austrian economists like Mises (2:01-5:09). Summary: The block sets the stage, introducing Locke’s labor theory as a flawed metaphor that has distorted political philosophy, with relevance to libertarian clarity. 5:10-10:00 (Libertarian Property Framework) Description: Kinsella discusses the overuse of metaphors in libertarianism, like “self-ownership,” preferring “body ownership” for clarity (5:10-7:02). He introduces Mises’ praxeology, explaining human action as using scarce means to achieve ends, and contrasts this with labor as a subset of action, not a special entity (7:03-9:38). He critiques terms like “limited government” for imprecision, arguing libertarians favor specific limits on the state (9:39-10:00). Summary: The libertarian framework is established, emphasizing clear language and scarcity-based property rights, setting up the critique of Locke’s labor theory. 10:01-15:14 (Labor Theory’s Flaws and IP) Description: Kinsella elaborates on praxeology, detailing how humans use scarce means (e.g., eggs, ovens) and non-scarce knowledge (e.g., recipes) to act, arguing IP wrongly assigns property rights to ideas (10:01-12:21). He introduces the libertarian property rule—first appropriation or contract—and contrasts it with Locke’s labor-based approach, which assumes owning labor leads to owning resources (12:22-14:15). He cites David Hume’s critique of Locke’s metaphorical labor ownership (14:16-15:14).

Kinsella on Liberty Podcast, Episode 036. I was a last-minute guest last week for the Rothbardian Circle (substituting for Dan D'Amico), a Miami-based discussion group, for their event "Introduction to Free Markets/Libertarian Theory" (Mar. 20, 2013). We discussed a variety of issues, mostly in a Q&A format, including the essentials of libertarian property theory, Lockean homesteading, Rothbard's idea of the "relevant technological unit," the labor theory of property, intellectual property, and other issues. The event was reported in the article Republicans and Libertarians team up for the Rothbardian Circle.

Kinsella on Liberty Podcast, Episode 035. This is from my Antiwar Interview: Kinsella on Bill of Rights, Intellectual Property by host Scott Horton (Feb. 11, 2010). We discussed "the federal government’s appropriation of the Bill of Rights – through the 14th Amendment – to regulate state powers, the debate about whether current lawlessness can rightfully be blamed on deviation from the beneficent Constitution or if the problem lies in the deeply flawed document itself and why ideas can’t be property." For more on the latter, see the C4SIF Resources page.  For more on constitutional sentimentalism and related issues, see  “Thumbs Down on the Fourth of July” (and posts linked therein) and On Constitutional Sentimentalism. Antiwar Radio: Stephan Kinsella   *** Antiwar Radio: Stephan Kinsella Posted by Scott in February 11th, 2010 No Comments Yet Posted in: Uncategorized Tags: Antiwar Radio, Scott-Horton, Stephan Kinsella Stephan Kinsella, fellow at the Mises Institute and author of the book Against Intellectual Property [.pdf], discusses the federal government’s appropriation of the Bill of Rights – through the 14th Amendment – to regulate state powers, the debate about whether current lawlessness can rightfully be blamed on deviation from the beneficent Constitution or if the problem lies in the deeply flawed document itself and why ideas can’t be property. // < ![CDATA[ // < ![CDATA[ pp_flashembed( 'powerpress_player_4654', {src: 'http://www.scotthortonshow.com/wp-content/plugins/powerpress/FlowPlayerClassic.swf', width: 320, height: 24, wmode: 'transparent' }, {config: { autoPlay: false, autoBuffering: false, initialScale: 'scale', showFullScreenButton: false, showMenu: false, videoFile: 'http://scotthorton.org/radio/10_02_11_kinsella.mp3', loop: false, autoRewind: true } } ); // ]]>Podcast: Play in new window | Download (5.5MB) (local copy)

Kinsella on Liberty Podcast, Episode 034. I was a guest yesterday on Jake Shannon's libertarian "Mental Self Defense" radio show discussing intellectual property (what's new). Good host.

Kinsella on Liberty Podcast, Episode 033. I was interviewed back on Jan. 20, 2010 by Mark Edge, as part of his “Edgington Post Interview Series,” for his Free Talk Live radio show, about my Mises Daily article, “Reducing the Cost of IP Law.” The interview is lasts about 35 minutes, and starts at 2:02:36 in the original Jan. 20, 2010 show, which I have trimmed here. Edge conducted an excellent interview–very informed and interesting. And, like many others, he’s come around to the anti-IP position. (See, on this, Have You Changed Your Mind About Intellectual Property?, Yet another Randian recants on IP, The Death Throes of Pro-IP Libertarianism, The Origins of Libertarian IP Abolitionism.) This podcast was discussed previously on the Mises blog.

Kinsella on Liberty Podcast, Episode 032. From Kinsella on Bill Handel Show Discussing Blackmail, Tiger Woods, David Letterman (Dec. 14, 2009) (Mises): I was a guest on the Bill Handel Show in late 2009 discussing the libertarian perspective on blackmail, with reference to the Tiger Woods and other cases. (See my post Blackmail should be legal: the case of David Letterman.) We also touched on common law versus legislation (see my Legislation and Law in a Free Society), intellectual property, reputation rights and defamation law, prostitution, and extortion. Handel, though apparently not a libertarian, was a very smart and fair host. See the Bill Handel Show podcast.

Kinsella on Liberty Podcast, Episode 031. This is my appearance on the Smash Walls Radio Podcast, Episode 9: Patent Shenanigans, with host Trevor Hultner. We discussed patent trolls, the SHIELD Act, and related matters. For more on that issue, see Patent trolls as mafioso (and that’s a compliment) and The SHIELD Act doesn’t go far enough: protect victims of all patent aggressors, not just “trolls”. Update: See Trevor Hultner: Patent “Trolls” are Bad. Patents are Worse.