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Kinsella on Liberty Podcast, Episode 253.

I spoke today on “A Libertarian’s Case Against Intellectual Property,” at the Federalist Society, University of Berkeley-California. It was well-organized and there was a perceptive and interesting critical commentary by Professor Talha Syed.

This is the audio I recorded on my iPhone; higher quality audio and video to be posted later.

My speaking notes pasted below.

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A Libertarian’s Case Against Intellectual Property

Stephan Kinsella

Kinsella Law Practice, Libertarian Papers, C4SIF.org

UC-Berkeley Law School Federalist Society

Oct. 11, 2018

 

  • Intellectual Property:
    • Legal rights enforced by law having to do with products or creations of the mind, the intellect
    • patent, copyright, trademark, trade secret
    • semiconductor maskwork, boat hull designs, database rights, moral rights, right to one’s “likeness,” reputation rights (defamation, libel and slander, law)
    • punishment for depicting religious figures in drawings
    • “cultural appropriation”
  • Why IP?
    • Ayn Rand “Patents are the heart and core of property rights.” … “Intellectual property is the most important field of law.”
    • US Commerce Dept. Study 2012 purporting to show that “intellectual Property-Intensive Industries” Contribute $5 Trillion, 40 Million Jobs to US Economy”
    • 2018 Nobel Laureate in Economics Paul Romer: economic growth — and the technological innovation it requires — aren’t possible under perfect competition; they require some degree of monopoly power[patents]
    • Some studies: patent trolls alone cost $29 billion and total costs much higher globally ($1 Trillion/year, or more, given the “cumulative” effect of innovation)
    • US continually foisting higher patent and copyright protections on other countries via trade agreements and treaties, e.g. NAFTA, USMCA, TPP (“IP Imperialism”)
    • Copyright distorts culture and threatens Internet freedom (censorship, takedown notices)
  • It’s important to get this issue right
  • I’m an IP lawyer and also a libertarian since high school (1982)
  • My IP struggle: problems with Rand, researching the issue
    • Tom Palmer, Wendy McElroy, Hans-Hermann Hoppe, Mises
    • Finally realized IP is unjustified around the time I passed the patent bar (1994)
    • Given my knowledge of IP law I spoke and wrote more and more on this topic, even though I’m more interested in other areas of libertarian legal theory
  • But I’ve found that sorting out this issue is crucial and helps sort out many other legal and policy issues
    • property and rights theory, Contract, fraud, causation and the law, and the nature and source of wealth and human prosperity

 

Purpose of law and property

  • The question is not “is IP a good idea?” or “what kind of IP law should we have?”
  • Garden of eden
    • Scarcity, conflict
    • All rights are property rights
    • Law is a set of rules enforcing property rights
    • To permit conflict-free use of resources
    • Allocates ownership of a contested resource in the case of a dispute
    • Basic rules:
      • Self-ownership, for bodies
      • for previously unowned, scarce resources:
        • original appropriation (homesteading)
        • contractual transfer
        • Transfer for purposes of rectification (restitution)
      • These give rise to a body of rules for property law, torts, contract, fraud, and criminal law

 

History of IP

  • Sybarris cooking competition 500 BC
  • History: patents used to grant monopolies. Statute of Monopoly 1623.
  • Copyright resulted from state and church censorship of the press, culminating in the Statute of Anne 1709
  • then the US Constitution in 1789: ““To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
  • Originally seen as exceptions to natural law and property rights, as privileges granted by the state to encourage innovation or artistic creation.
  • Defenders began to refer to it as “intellectual” “property” rights. Modern beneficiaries of IP are Hollywood, the music industry, and the pharmaceutical industry.

 

Arguments for IP

  • Utilitarian and deontological
  • Problems with utilitarianism
    • In general: Austrianism/subjective value
    • Ethical problems with utilitarianism
    • The empirical evidence itself
      • Burden of proof: the Constitution
      • It was just a “hunch” at first
      • What it has to show: value of innovation and cost of the system
      • What it has shown
        • Fritz Machlup, 1958: “No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society. The best he can do is to state assumptions and make guesses about the extent to which reality corresponds to these assumptions. … If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one.”
        • François Lévêque and Yann Ménière (French economists, 2004): an economic analysis of the cost and benefits of intellectual property “is no more within our reach today than it was in Machlup’s day” [1950s].
        • Boston University Law School Professors (and economists) Michael Meurer and Jim Bessen concluded (2008) that on average, “patents place a drag on innovation” … “the patent system fails on its own terms”
        • economists Michele Boldrin and David Levine: “The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless the latter is identified with the number of patents awarded—which, as evidence shows, has no correlation with measured productivity.
      • Locke and the Labor Theory of Property
        • Locke’s big mistake: too many metaphors
        • Labor theory of property
        • Has led to vast confusion about the nature and basis of rights and the source of wealth
        • Led to the labor theory of value à Marx and communism, death, destruction, impoverishment, the Cold War, the nuclear arms race, and the lack of clean and safe Thorium nuclear fission reactors instead of Uranium (needed to breed Plutonium for nuclear bombs)
          • Carbon-free, plentiful energy, no waste, no meltdowns
        • Nobody owns labor, or action, or value
        • Nobody owns information, or patterns, or knowledge
      • Mises’s praxeology:
        • Human action is the employment of scarce means (material resources), guided by knowledge, to achieve some future end goal that would not otherwise occur.
        • Use of means to causally interfere
        • successful human action requires access to and control of scarce means, and knowledge about cause and effect.
        • To have conflict-free, cooperative human action, in society, property rights are assigned to the scarce means.
          • Makes no sense to do this for knowledge. Knowledge is non-rivalrous.
        • IP is similar to normal property rights
          • Richard Epstein, Adam Mossoff
          • Irrelevant
          • Humans could be owned too (chattel slavery). What the legal system can do is irrelevant to what it should do

 

  • IP rights are involuntarily imposed Negative servitudes

 

  • Auxiliary argument: patent and copyright require legislation
    • Anarchist libertarians are against legislation
    • Even minarchist libertarians have good reasons to be against legislation as a means of making law

 

The future of IP

  • Special interests are fighting harder than ever
  • The Internet, digital files, encryption, torrenting have made it virtually impossible to successfully enforce copyright law
    • EFF/cypherpunk John Gilmore: “The Net interprets censorship as damage and routes around it”
    • sci-fi author Cory Doctorow: The Internet is “the world’s most efficient copying machine” and “It’s the twenty-first century. Copying stuff is never, ever going to get any harder than it is today”
  • 3D printing may do the same to patent law, over time
    • Just as 3D printing of guns is causing trouble for enforcement of gun regulations

 

Thomas Paine: “a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason.”

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Meet the hosts

discussions

  • Let’s kick this off! How are you able to have a successful photography company without the state to enforce copyright and/or IP laws? I personally have a very successful wedding photography company and one of my biggest selling points is my philosophy on intellectual property. I’d love to hear other’s successes, or problems, and will happily explain how I do it!

    Jump to Discussion Post 5 replies
  • The government could do its job! It could protect and uphold contracts. If it protected contracts agreed upon voluntarily by parties involved in any exchange then it would be a stabilizing entity! Can you believe it? The stated goal of government is to stabilize things and that can be accomplished if they did what they are supposed to do! Instead we see government causing massive destabilization because it violates contracts and fails to protect contracts. How simple is the solution! Even the government union employee can identify with the solution: “I only do specifically what my job is and nothing more!” Someone tell the government ‘to protect and uphold contracts’ only!

    Jump to Discussion Post 3 replies
  • Its completely ok to have an opinion. It actually is pretty important. But teachers shouldn’t teach their opinion as the truth. I have to face this behavior everyday at my school in switzerland. As a proud libertarian, i was very shocked as my teacher showed the anticapitalist, enviromentalist movie called “tomorrow”. There were no discussions about the problematic points the movie made. It was taught as the truth. The only truth. The tides turned, as i got to speak to a journalist, who was interviewing me about a political event, i went to. I described my problem and the whole thing got published. Of course it was shortened and the most important points were cut out, because they were probably to “aggressive” . But then (after the article appeared in the newspaper) the leftist/socialist behavior of my teacher disappeared, meaning we stopped watching “tomorrow” and about all the future controversial subject, we held debates with the whole class.   The main point of my little essay is, that we don’t have to make non-neutral-teaching illegal, but expose them with newspapers and television. In switzerland, this works perfectly.

    Jump to Discussion Post 1 reply
  • For the past few years, police departments have been on something of a power trip in the United States. Only citing the lesser-known instances that come to my mind, cops have assaulted autistic teenagers and murdered unarmed civilians, and were subsequently cleared of all charges and let back on the force. A zealous, dogmatic conservative “fanbase,” alongside a legal system that actively defends police from facing charges of murder, manslaughter, or assault, assures that these men and women never see justice for their actions. It’s awful what police are doing in society, but it’s even worse that they can get off scot-free for it. Of course, most of you already know this. So here’s my question: has any United States representative or senator proposed a bill designed to fight against unjust acquittals or introduce charges that are harder to to be overturned? As an agorist, I’m partially convinced that this has never happened and that anyone who gets elected for public office in this day and age is a vapid authoritarian, but a sliver of hope remains for me somewhere. Have any of you heard of such legislation on a federal level? If not, then what about on a state level?

    Jump to Discussion Post 1 reply
  • Is there anyone out there that can SHOW ME the LAW that says the IRS can interfere with the business of the State Department?  Is there anyone out there that show me where “Congress” acquired Legislative Jurisdiction to interfere with travel within a State?  Can anyone show me the Law that grants “Enforcement” jurisdiction to the IRS for any territory other than “Federal” Land?  Just because the bunch of outlaw-renegades that call themselves “Congress” puts a bunch of words on a piece of paper and calls it a “LAW” doesn’t mean that it is a True, Correct, and Certain string of words that actually is “enforceable”.  Yet almost every time Obama writes an “Executive Order” or “Congress” passes something they call a Law most people (including some that should know better) start claiming that you or I are on our way to prison because of some language in the “new” Law or Order.  So let me ask this: How many of you have studied “Federal Jurisdiction”, or Federal “Legislative” Jurisdiction?  How many have read the Constitution and know anything about Separation of Powers?

    Jump to Discussion Post 23 replies