Daily Bell Interview: Stephan Kinsella on the Logic of Libertarianism and Why Intellectual Property Doesn’t Exist

From The Daily Bell:

 

Stephan Kinsella on the Logic of Libertarianism and Why Intellectual Property Doesn’t Exist

Sunday, March 18, 2012 – with Anthony Wile
The Daily Bell is pleased to present this exclusive interview with Stephen Kinsella (left).

Introduction: Stephan Kinsella is a libertarian scholar and attorney in Houston. The Executive Editor of Libertarian Papers and Director of the Center for the Study of Innovative Freedom (C4SIF), he is Counsel/Treasurer of the Property and Freedom Society, serves on the Advisory Panel of the Center for a Stateless Society and is also a member of the Editorial Board of Reason Papers and of The Journal of Peace, Prosperity & Freedom [Australia]. He was formerly a partner with Duane Morris LLP, General Counsel for Applied Optoelectronics, Inc. and adjunct law professor at South Texas College of Law. Stephan has published many libertarian articles and books including Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe (co-editor, Mises Institute, 2009), Against Intellectual Property (Mises Institute, 2008; Laissez Faire Books edition forthcoming) and the forthcoming Law in a Libertarian World: Legal Foundations of a Free Society and Copy This Book (both Laissez Faire Books). Stephan’s legal publications include International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (co-author, Oxford University Press, 2005), Louisiana Civil Law Dictionary (co-author, Quid Pro Books, 2011) and several other legal treatises published by Oxford University Press, Oceana Publications and West/Thompson Reuters.

Daily Bell: Give us some background on yourself. Where did you go to school? How did you become a lawyer?

Stephan Kinsella: I was from a young age interested in science, philosophy, justice, fairness and “the big questions.” I ended up majoring in electrical engineering at Louisiana State University (LSU). This was the mid-1980s. I liked engineering but over time became more and more interested in political philosophy.

In the late ’80s I started publishing columns in the LSU student newspaper, The Daily Reveille, from an explicitly libertarian perspective. As my interests became more sharply political and philosophical, my girlfriend (later wife) and friends urged me to consider law school. After all, I liked to argue. I might as well get paid for it! I was by this time in engineering grad school. Unlike many attorneys I know, I had not always wanted to be a lawyer. In fact, it had never occurred to me until my girlfriend suggested it over dinner, when I was wondering what degree I could pursue next—partly in order to avoid having to enter the workforce just yet. And also to make more money. At the time I naively thought one had to have a pre-law degree and many prerequisite courses that engineers would lack; and I feared law school would be too difficult. I remember my girlfriend’s chemical engineer father laughing out loud at my concern that law school might be more difficult than engineering.

So I walked across the LSU campus one day and talked to the vice chancellor about all this. He tried to dissuade me, saying that engineering undergrads tended to find law school difficult. But he conceded that a pre-law degree is not needed; all one needs is a BS or BA in something. I took the LSAT and did well enough to get accepted at LSU Law Center. (In the US, law is a graduate degree, the Juris Doctor, which requires an initial B.A. or B.S. degree. Because of ABA protectionism. But I digress.)

I discuss some of this in my article “How I Became A Libertarian,” LewRockwell.com (December 18, 2002), also published as “Being a Libertarian” in I Chose Liberty: Autobiographies of Contemporary Libertarians (compiled by Walter Block; Mises Institute 2010).)

I actually greatly enjoyed law school. Unlike many of my fellow law students, apparently, who seemed in agony. I was free to talk about laws, rules, human action and interaction. Norms and opinions were relevant. I enjoyed the Socratic discussion method. In one sense, it was unlike electrical engineering, which studies the impersonal behavior of subatomic particles. In law, the subject matter is acting humans and the legal norms that pertain to human action. On the other hand, I found it similar to engineering in that it was analytical and focused on solving problems. It is less mechanistic and deterministic than is engineering but it is still analytical. So if you are the type of engineer who can shift modes of thought and who is able to write and speak coherently (not all engineers are), then law school is fairly easy. By contrast, many liberal arts majors are not used to thinking analytically. The first year of law school is meant to break their spirit and remold them into the analytical, lawyer-thinking, problem-solving mold.

In any case, I became a lawyer and do not regret it. It can be lucrative and mentally stimulating. In my own case, my legal career has complemented my libertarian and scholarly interests. As Gary North has pointed out, for most people there is a difference between career and calling. Your career or occupation is what puts food on the table. Your calling is what you are passionate about – “the most important thing you can do with your life in which you are most difficult to replace.” Occasionally they are the same, but often not; but there is no reason not to arrange your life so as to have both. In my case, my various scholarly publications and networks helped my legal career if only by adding publications to my CV. And my legal knowledge and expertise, I believe, has helped to inform my libertarian theorizing.

Daily Bell: You founded your own firm. Tell us how that came about.

Stephan Kinsella: After law school my first job was in oil and gas law at a large Houston based law firm, Jackson Walker. I found the work fascinating; it was all about contract and property rights. Then I moved into patent law because it was more in demand at this time (mid ’90s) and unlike state-based oil & gas law, it is a national legal field so allows more geographic mobility. My wife’s employer at the time was pushing her to take a job in the head office outside Philadelphia. So I switched to patent law in part to accommodate this and in part to capitalize on the then-burgeoning field of IP law.

I recall discussing my career choices at this time with my friend, LSU law professor Saúl Litvinoff, an old-world gentleman, who confessed that he was “nonplussed” that I, a man, a husband, would take into account my wife’s career plans in my own career decisions. Oh, well. Different times.

I ended up taking a job with a Philadelphia law firm, Schnader Harrison, doing patents and related IP work. I and others there ended up moving later to Duane Morris, and when I moved back to Houston in 1997 I opened their Houston office. In 2000 I decided to join one of my clients as general counsel. At the time I had been at big law firms for about ten years and had learned a lot and enjoyed it but was ready for a change. And after about ten years as general counsel, I was ready for another shift so I have recently formed my own legal practice, specializing in intellectual property, technology and commercial law.

Daily Bell: Why were you attracted to Austrian economics and why did libertarianism attract you?

Stephan Kinsella: I was always interested in science, truth, goodness and fairness. I have always been strongly individualistic and merit-oriented. This is probably because I was adopted and thus have always tended to cavalierly dismiss the importance of “blood ties” and any inherited or “unearned” group characteristics. This made me an ideal candidate to be enthralled by Ayn Rand‘s master-of-universe “I don’t need anything from you or owe you anything” themes.

Another factor is my strong sense of outrage at injustice, which probably developed as a result of my hatred of bullies and bullying. I was frequently attacked by them as a kid because I was small for my age, bookish and a smartass. Not a good combination.

A librarian at my high school (Catholic High School in Baton Rouge, Louisiana) one day recommended Ayn Rand’s The Fountainhead to me. (I believe this was in 1982, when I was a junior in high school — the same year Rand died.) “Read this. You’ll like it,” she told me. I devoured it. Rand’s ruthless logic of justice appealed to me. I was thrilled to see a more-or-less rigorous application of reason to fields outside the natural sciences. I think this helped me to avoid succumbing, in college, to the simplistic and naïve empiricism-scientism that most of my fellow engineering classmates naturally absorbed. Mises’s dualistic epistemology and criticism of monism-positivism-empiricism, which I studied much later, also helped shield me from scientism.

By my first year of college (1983), where I studied electrical engineering, I was a fairly avid “Objectivist” style libertarian. I had read Henry Hazlitt‘s Economics in One Lesson and some of Milton Friedman‘s works (see my The Greatest Libertarian Books), but I initially steered clear of self-styled “libertarian” writing. Since Rand was so right on so many things, I at first assumed she must be right in denouncing libertarianism as the enemy of liberty. I eventually learned better, of course.

Daily Bell: How did you meet Lew Rockwell and become affiliated with Mises?

Stephan Kinsella: I eventually started reading more radical libertarians like Rothbard and Austrians like Mises and Hayek and soon became an Austrian and anarchist. The Austrian approach to knowledge made so much sense to me. It was rigorous without being mathematical and it was “Kantian” without succumbing to idealism: Like Rand’s epistemology, the Misesian approach is also realistic. (Some of my favorite works in this regard are Mises’ Ultimate Foundation of Economic Science, Rothbard’s The Mantle of Science and Hoppe’s Economic Science and the Austrian Method. See also my posts Mises and Rand (and Rothbard) and C.P. Snow’s “The Two Cultures” and Misesian Dualism.)

In 1988, when I was in law school, I read Hans-Hermann Hoppe’s controversial and provocative article in Liberty, “The Ultimate Justification of the Private Property Ethic” (for more on this topic, see my Argumentation Ethics and Liberty: A Concise Guide). In this article Hoppe sets forth his “argumentation ethics” defense of libertarianism. This idea had a profound influence on me. I wrote several papers defending libertarian ethics, based on this theory (discussed in the previously mentioned article) and I wrote an in-depth review essay of Hoppe’s The Economics and Ethics of Private Property. I promptly sent it to Hoppe, who sent back a warm thank you note. This was around 1994.

Later that year, in October 1994, I attended the John Randolph Club meeting which was held near Washington, D.C., primarily to meet Hoppe, Rothbard and Rockwell. While there I was able to get Rothbard to autograph my copy of Man, Economy & State, which he inscribed “To Stephan: For Man & Economy, and against the state —Best regards, Murray Rothbard” (he died the following January). I started attending and speaking at various Mises Institute conferences such as their annual Austrian Scholars Conference. I am now involved with Hoppe’s Property and Freedom Society, which has annual meetings in Bodrum, Turkey, since its founding in 2006.

Daily Bell: Tell us about your legal theory of property and how you came to believe that intellectual property doesn’t exist.

Stephan Kinsella: My main interest has always been and remains the basics of libertarian ethics: What are individual rights and property, how is this justified and so on. As I discuss in Intellectual Property and Libertarianism, from the beginning of my exposure to libertarian ideas, the intellectual property (IP) issue nagged at me. I was never satisfied with Ayn Rand’s justification for it, for example. Her argument is a bizarre mixture of utilitarianism with overwrought deification of “the creator” — not the Creator up there, but Man, The Creator, who has a property right in what He Creates. Her proof that patents and copyrights are property rights is lacking. (See my speech The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism, Austrian Scholars Conference 2008; and my blog posts Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Regret: The Glory of State Law; and Inventors are Like Unto…. GODS…...)

So I kept trying to find a better justification for IP and this search continued after I started practicing patent law, in 1993 or so.

Many libertarians abandon minarchy in favor of anarchy when they realize that even a minarchist government is unlibertarian. That was my experience. And it was like this for me also with IP. I came to see that the reason I had been unable to find a way to justify IP was because it is, in fact, unlibertarian. I was heavily influenced by previous thinkers, as discussed in The Origins of Libertarian IP Abolitionism and The Four Historical Phases of IP Abolitionism. Perhaps the unlibertarian character of patent and copyright would have been obvious if Congress had not enacted patent and copyright statutes long ago, making them part and parcel of America’s “free-market” legal system — and if early libertarians like Rand had not so vigorously championed such rights.

But libertarianism’s initial presumption should have been that IP is invalid, not the other way around. After all, we libertarians already realize that “intellectual” rights, such as the right to a reputation protected by defamation law, are illegitimate. (See Murray N. Rothbard, Knowledge, True and False.)

Why, then, would we presume that other laws, protecting intangible, intellectual rights, are valid—especially artificial rights that are solely the product of legislation, i.e., decrees of the fake-law-generating wing of a criminal state? (For a criticism of legislation as a means of making law, see Legislation and Law in a Free Society and Another Problem with Legislation: James Carter v. the Field Codes.)

But IP is widely seen as basically legitimate. There have always been criticisms of existing IP laws and policies and many calls for “reform.” But I became opposed not just to “ridiculous” patents and “outrageous” IP lawsuits, but to patent and copyright per se. Patent and copyright law should be abolished, not reformed. The basic reason is that patent and and copyright are explicitly anti-competitive grants by the state of monopoly privilege, rooted in mercantilism, protectionism and thought control. To grant someone a patent or copyright is to grant them a right to control others’ property − a “negative servitude” granted by state fiat instead of contractually negotiated. This is a form of theft, trespass, or wealth redistribution.

So to answer your question: IP rights − patent and copyright − “exist,” but are not legitimate any more than welfare rights are. There are many types of IP; all are illegitimate, in my view. Not only because most of them are based on and require legislation (I view all legislation as unlibertarian; see Legislation and Law in a Free Society) but because they try to set up rights in non-scarce things, which in effect grants negative servitudes to some people at the expense of the property rights of others.

Daily Bell: According to Wikipedia and other sources, “In contract theory, you extend Murray Rothbard’s and Williamson Evers’s title transfer theory of contract linking with inalienability theory.” What does that mean?

Stephan Kinsella: I discuss these issues in various places including Justice and Property Rights: Rothbard on Scarcity, Property, Contracts… and A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability. The basic idea is to root the entire idea of contract in a libertarian theory of property. The latter is based on the realization that the entire purpose of property rights is to solve the problem of incompatible uses of scarce resources. The fact that some things in the world are scarce resources means that these resources can be used as means of action only if ownership is assigned and socially recognized. For things that are not scarce there is no social problem to be solved. Hans-Hermann Hoppe addresses these issues in the opening chapters of his foundational treatise A Theory of Socialism and Capitalism.

Rothbard recognized that all individual rights are property rights and, therefore, that a theory of contract is not about enforceable or binding “promises” but simply about how owners of resources can contractually transfer title to others. As Rothbard recognized, this has implications for alienability or so-called “voluntary slavery” contracts. Many libertarians, assuming contracts are just binding promises, see no reason one could not bind oneself to be a slave. But if you view contracts as simply transfers of title to owned objects, then the question arises: Is one’s body alienable, or not? You cannot just assume that it is. Rothbard argued that it was not.

Daily Bell: You also attempted to clarify the theory. How so?

Stephan Kinsella: Rothbard sketched the theory in 1974; Evers elaborated on it in 1977, based on Rothbard’s insights. Rothbard then built on Evers’s pioneering article in his 1982 Ethics of Liberty. But neither were lawyers and only took this analysis so far. I tried to incorporate their insights and integrate them with other Rothbardian, Misesian and Hoppeian insights about property rights and liberty and with established legal concepts, such as those developed under the Roman-influenced continental or civil-law systems, which I regard as more libertarian, in some respects, than the more feudalistic common-law concepts.

My basic approach is to recognize that mainstream legal theories of contract have been muddied by unlibertarian and positivistic conceptions of law and rights. Questions about what rights are “alienable” or not, loose talk about how promises should be “binding,” etc., highlight the need for clarity in this area. In my view, to sort these issues out one needs a very clear and consistent understanding of the nature of property rights and ownership. First, we must recognize that only scarce resources are ownable; second, that the body is a type of scarce resource; third, that the mode of acquiring title to external objects is different from the basis of ownership of one’s own body. The libertarian view is that human actors are self-owners and these self-owners are capable of appropriating unowned scarce resources by Lockean homesteading − some type of first use or embordering activity. Obviously, an actor must already own his body if he is to be a homesteader; self-ownership is not acquired by homesteading but rather is presupposed in any act or defense of homesteading. The basis of self-ownership is the fact that each person has direct control over the scarce resource of his body and therefore has a better claim to it than any third party (and any third party seeking to dispute my self-ownership must presuppose the principle of self-ownership in the first place since he is acting as a self-owner). (For more on this see my posts and articles The relation between the non-aggression principle and property rights: a response to Division by Zer0, How We Come To Own Ourselves, and What Libertarianism Is.)

So there is a difference in body-ownership and in ownership of external scarce goods. An actor is a self-owner; self-owners are able to acquire property rights in external objects by homesteading unowned resources − or by contractual acquisition from a previous owner. Many libertarians simply assume that if you own something, you can sell it. Thus, they conclude that if we are self-owners, we can sell our bodies. (Walter Block makes this argument.) My view is that we start with the nature of ownership: Ownership means the right to exclude others. It does not automatically imply the “right to sell” since this is actually moving from a situation where you have the right to exclude to one where you do not. But in the case of formerly unowned resources, because of the way ownership is acquired, it can be undone, in effect. Homesteading an object requires more than just possession − it requires the intent to own. So if the intent to own is abandoned, then the thing is no longer owned, but merely possessed (if that). Thus, an owner of an object can transfer ownership to another by allowing the other to possess the object and then manifesting his intent to abandon ownership, “in favor” of the new possessor. The new possessor then in effect re-homesteads the item, becoming its new owner. In other words, the nature of ownership in external objects means that it is possible to abandon ownership to them or use this abandonment method to transfer title to someone else. So ownership does not directly include the “right to sell,” but it so happens to imply this power, for acquired property. However, the same is simply not true of one’s body. There is no way to “undo” the homesteading of your body since you did not homestead it in the first place. There is no way to abandon your ownership of your body since it is rooted in your better claim to it based on your direct control over it. Merely stating “I promise to be your slave” doesn’t change your status as having a better claim to your body than third parties. (For more on this, see A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability and How We Come To Own Ourselves.)

So in exploring the Rothbard-Evers title transfer theory of contract and in building on insights by Hoppe about the crucial importance of scarcity to property rights and his insights as to the nature of self-ownership and homesteading, I tried to identify the difference between body and external resource ownership, the basis and nature of acquisition of rights in each and the nature of what contracts are (transfers of title to alienable owned objects) and what implications this has for body-alienability (namely, that voluntary slavery contracts are unenforceable and invalid).

Daily Bell: You advance a theory of causation that attempts to explain why remote actors can be liable under libertarian theory. Can you clarify this point, please?

Stephan Kinsella: I had long been dissatisfied with the approach various libertarians take to the issue of responsibility for aggression caused by leaders or groups. Too often libertarians made what seemed to me to be too simplistic or unjustified assumptions, which they relied on in their analysis. For example some seemed to assume that there is a fixed amount of responsibility, so that if you say the mafia boss is responsible for ordering a hit, then the lackey who committed the killing is innocent. Or some would argue that a mafia boss or general or president is not responsible for the aggression committed by his underlings, unless he had coerced them or had a “contract” with them.

These all seemed confused to me. As for the latter: a contract is just a title transfer, so it is unclear why A hiring B to kill C means A is liable but A persuading B through sexual favors to kill C is not. Focusing on ad hoc exceptions to the rule that A is not responsible for B’s actions seemed confused to me. The Austrian theory of subjective value teaches us that there are many ways to incentivize or motivate or induce someone to commit an action for you: you can promise sexual favors, promise to pay money, hire someon, and so on. Also, there is no reason to think that both the boss and his underling cannot both be 100% responsible: in the law this is called joint and several liability.

So in developing a paper called “Reinach and the Property Libertarians on Causality in the Law” for the Reinach and Rothbard: An International Symposium (Ludwig von Mises Institute, Auburn, Alabama, March 29-30, 2001), a version of which was later published as Causation and Aggression (co-authored with Patrick Tinsley, The Quarterly Journal of Austrian Economics, vol. 7, no. 4, Winter 2004: 97-112), I relied on Mises’s praxeological understanding of the structure of human action and cooperation action in general. Mises points out that in a market economy with the division and specialization of labor, people use others as means to achieve their ends. This is the essence of market cooperation.

When the aim is peaceful production of wealth, this is good. But people can cooperate to engage in collective aggression too. In this case the members of the group conspire to achieve an illicit end, such as theft or murder. Just as a man can use a gun (a means) to commit aggression, so people can employ others as means to commit crimes. Sometimes these other people are innocent (e.g., hiring a boy to deliver a bomb concealed in a package) and other times they are complicit (the mafia boss’s underling). In the latter case, both actors are aggressors, as they play a causal role in action that uses efficacious means to achieve the end of invading the borders of the property of innocent victims. The argument is general and praxeological and focuses on the intend of the actor (which relates to the praxeological end or goal of the action) and the means employed, whether that means be an inanimate good or another human. Thus, there is no need to resort to ad hoc exceptions such as “the boss is liable because he was coercing the underling” or “the boss is liable because of a contract with” the underling.

Daily Bell: You provide non-utilitarian arguments for intellectual property being incompatible with libertarian property rights principles. Can you explain this?

Stephan Kinsella: I alluded to this above in my discussion about negative servitudes. An IP right gives the holder the right to stop others from using their property as they wish. For example, George Lucas, courtesy copyright law, can use the force of state courts to stop me from writing and publishing “The Continuing Adventures of Han Solo.” J.D. Salinger’s estate was able to block the publication of a sequel to Catcher in the Rye, for example. This is censorship. (See The Patent, Copyright, Trademark, and Trade Secret Horror Files.) And Apple can get a court order blocking Samsung from selling a tablet if it resembles an iPad too closely. This is just protection from competition. (See Intellectual Property Advocates Hate Competition.)

Daily Bell: You offer a discourse ethics argument for the justification of individual rights, using an extension of the concept of “estoppel.” Can you expand please?

Stephan Kinsella: This approach is summarized in Argumentation Ethics and Liberty: A Concise Guide and New Rationalist Directions in Libertarian Rights Theory. The libertarian approach is a very symmetrical one: the non-aggression principle does not rule out force, but only the initiation of force. In other words, you are permitted to use force only in response to some else’s use of force. If they do not use force you may not use force yourself. There is a symmetry here: force for force, but no force if no force was used. In law school I learned about the concept of estoppel, which is a legal doctrine that estops or prevents you from asserting a position in a legal proceeding that is inconsistent with something you had done previously. You have to be consistent. I was at this time fascinated with Hoppe’s argumentation ethics, which is probably why it struck me that the basic reasoning of legal estoppel could be used to explain or justify the libertarian approach to symmetry in force: The reason you are permitted to use force against someone who himself initiated force is that he has already in a sense admitted that he thinks force is permissible, by his act of aggression. Therefore if he were to complain if the victim or the victim’s agents were to try to use defensive or even retaliatory force against him, he would be holding inconsistent positions: His pro-force view that is implicit and inherent in his act of aggression and his anti-force view implicit in his objection to being punished. Using language borrowed from the law, we might say he should be “estopped” from complaining if a victim were to use force to defend himself from the aggressor or even to punish or retaliate against the aggressor. I tried to work this into a theory of libertarian rights, relying heavily on insights from Hoppe’s argumentation ethics and from his social theory in general.

Daily Bell: Please comment on and summarize the following books you wrote, with special emphasis on your IP theory:

Protecting Foreign Investment Under International Law: Legal Aspects of Political Risk (with Paul E. Comeaux). Oceana Publications, 1997. ISBN 978-0379213713

Online Contract Formation (with Andrew Simpson). Oxford University Press, 2004. ISBN 978-0379215199

International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (with Noah Rubins). Oxford University Press, 2005. ISBN 978-0379215229

Against Intellectual Property. Ludwig von Mises Institute, 2008. ISBN 978-1933550329

Stephan Kinsella: The first three books are legal treatises that have little do with libertarianism or IP, although the first and third do examine practical ways for international investors to use international law to protect their property from takings from the host state (more on these at my legal site, KinsellaLaw.com).

The latter monograph was first published as an article in the Journal of Libertarian Studies in 2001, with the title suggested by Professor Hans-Hermann Hoppe, then the journal’s editor. My initial title had been “The Legitimacy of Intellectual Property,” the name of the earlier paper I had delivered at the Austrian Scholars Conference the preceding year.

It was only 11 years ago, but at the time there was not yet much interest among libertarians in intellectual property (IP). It was thought of as an arcane and insignificant issue, not as one of our most pressing problems. Libertarian attention was focused on taxes, war, the state, the drug war, asset forfeiture, business regulations, civil liberties and so on, not on patent and copyright.

I felt the same way. I looked into this issue primarily because I had been, since 1993, a practicing patent attorney and had always been dissatisfied with Ayn Rand’s arguments in favor of IP (Ayn Rand, “Patents and Copyrights,” in Capitalism: The Unknown Ideal (New York: New American Library, 1967), p. 133). Her weird admixture of utilitarian and propertarian arguments raised red flags for me. It included tortuous arguments as to why a 17-year patent term and a 70-year copyright term were just about right and why it was fair for the first guy to the patent office to get a monopoly that could be used against an independent inventor just one day behind him. I knew Rand’s approach was wrong but I assumed there must be a better way to justify IP rights. So I read and thought and tried to figure this out. In the end, I concluded that patent and copyright are completely statist and unjustified derogations from property rights and the free market. So I wrote the article to get it out of my system and then moved on to other fields that interest me more, like rights theory, libertarian legal theory and the intersection of Austrian economics and law.

In the meantime, with the flowering of the Internet and digital information and with increasing abuses of rights in the name of IP, more and more libertarians have become interested in the IP issue and have realized that it is antithetical to libertarian property rights and freedom. It is in fact becoming a huge threat to freedom and increasingly used by the state against the Internet, which is one of the most important weapons we have against state oppression. (For more on this see SOPA is the Symptom, Copyright is the Disease: The SOPA wakeup call to ABOLISH COPYRIGHT. For more discussion of SOPA and PIPA, see C4SIF.org and Techdirt. See also Where does IP Rank Among the Worst State Laws?; Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; Copyright and the End of Internet Freedom; and Patent vs. Copyright: Which is Worse?)

Daily Bell: What is the reaction to your theory of IP? Hostility?

Stephan Kinsella: At first there was apathy. The few people who thought about it mostly thought my views were too extreme − maybe we need to fix copyright and patent but surely the basic idea is sound. But my impression is that nowadays most libertarians are strongly opposed to IP. (See The Death Throes of Pro-IP Libertarianism; The Origins of Libertarian IP Abolitionism; The Four Historical Phases of IP Abolitionism.) And, in fact, scholars associated with the Mises Institute sensed the importance of this issue earlier than most − for example, the Mises Institute awarded my “Against Intellectual Property” paper the O.P. Alford III Prize for 2002.

Laissez Faire Books is coming out with a new edition of my Against Intellectual Property later this year. I am also in the process of writing a new book on IP, tentatively entitled Copy This Book, taking into account more recent arguments, evidence and examples. In the meantime, readers interested in these ideas may find useful the list of selected writings and talks that supplement the arguments made in AIP, which I have compiled in my C4SIF blogpost “Selected Supplementary Material for Against Intellectual Property.” For further information see various works linked at c4sif.org/resources and material posted going forward at c4sif.org.

Daily Bell: How do you think artists and writers feel about it? What do they do to make a living if they do not receive royalties?

Stephan Kinsella: Well, sharing is not piracy, and copying is not theft. (And competition is not theft, either − see Intellectual Property Advocates Hate Competition.) But people are used to thinking in these terms, due to state- and special interest-inspired propaganda to the contrary. Most artists and writers do not make much money from copyright; if they are successful at all they typically go through a publisher who makes most of the profits and owns the copyrights anyway. Luckily, technology is allowing writers and musicians to bypass the publishing and music industry gatekeepers.

There are any number of models artists can use to profit off of their talent and artistry. It is not up to the state to protect them from competition. Musicians can obviously get paid for performing and having their music copied and “pirated” helps them in this respect by making them more well known, more popular. As Cory Doctorow has noted, “for pretty much every writer − the big problem isn’t piracy, it’s obscurity.” Artists are just entrepreneurs. It’s up to them to figure out how or if they can make a monetary profit from their passion − from their calling, as I discussed above. Sometimes they can. Musicians can sell music, even in the face of piracy. Or they can sell their services − concerts, etc. Painters and other artists can profit in similar ways. A novelist could use kickstarter for a sequel or get paid to consult on a movie version (see Conversation with an author about copyright and publishing in a free society). Authors of non-fiction such as academic articles do not even get paid today − but it enhances their reputations and helps them land jobs in academia, for example. Inventors have an incentive to invent to make better products that outcompete the competition − for a while. Or they are hired in the R&D department of a corporation that is always trying to innovate. And so on. And if you cannot make your calling your career, then find a way. As director Francis Ford Coppola has observed:

“You have to remember that it’s only a few hundred years, if that much, that artists are working with money. Artists never got money. Artists had a patron, either the leader of the state or the duke of Weimar or somewhere, or the church, the pope. Or they had another job. I have another job. I make films. No one tells me what to do. But I make the money in the wine industry. You work another job and get up at five in the morning and write your script.”

For some other examples, see: Funding for Creation and Innovation in an IP-Free World; Examples of Ways Content Creators Can Profit Without Intellectual Property; Innovations that Thrive without IP; The Creator-Endorsed Mark as an Alternative to Copyright. Techdirt also has a number of studies of how creators can profit from their works without relying on copyright, such as How Being More Open, Human And Awesome Can Save Anyone Worried About Making Money In Entertainment.

Daily Bell: We find your theories reasonable but are you making headway? Are people generally hostile?

Stephan Kinsella: As I mentioned earlier, libertarians have, in my impression, generally become more opposed to IP, and generally on principled grounds. Most “mainstream” people are reluctant to take a principled or “extreme” position, instead recognizing that IP is “broken” and needs to be “reformed.” They think IP abolitionism is too extreme, but really cannot articulate why. (See There are No Good Arguments for Intellectual Property: Redux.)

Daily Bell: We’ve come to the conclusion that copyright law and patent law are deterrents to progress and technology. Your view?

Stephan Kinsella: The empirical studies all point this direction (see Yet Another Study Finds Patents Do Not Encourage Innovation). And this should not be surprising. Everything the state does, without exception, destroys. IP, especially patent and copyright, are pure creatures of state legislation. The origins of copyright lie in censorship and thought control; the origins of patents lie in mercantilism and protectionism. It should be no surprise that state interventions in the market lead to destruction of wealth, which of course will have an adverse effect on innovation.

Daily Bell: What would the world look like without patent and copyright law?

Stephan Kinsella: As far as copyright, I think it would look somewhat like what our our current world is heading to since there is rampant “piracy” despite copyright law. Except there would be fewer outrageous, draconian results like jail terms and prison. (See Six Year Federal Prison Sentence for Copyright Infringement; Man sentenced to federal prison for uploading “Wolverine” movie; British student Richard O’Dwyer can be extradited to US for having website with links to pirated movies.) And there would be more freedom to engage in remixing and other forms of creativity and a richer public domain to draw on. We would still have a huge amount of artistic works being created, of course.

Without patents, companies would be free to compete without fear of lawsuits − and without being able to rely on a state-granted monopoly privilege to protect them from competition. I believe that an IP-free world would have far more innovation and diverse creativity than today’s world. And there would be fewer barriers to entry so smaller companies could compete with the oligopolies that patent law has helped to create.

Daily Bell: Can you explain how patent and copyright law evolved and why it was likely a reaction to the Gutenberg Press and a means of controlling information rather than protecting the public?

Stephan Kinsella: The roots of copyright lie in censorship. It was easy for state and church to control thought by controlling the scribes, but then the printing press came along and the authorities worried that they couldn’t control official thought as easily. So Queen Mary created the Stationer’s Company in 1557, with the exclusive franchise over book publishing, to control the press and what information the people could access. When the charter of the Stationer’s Company expired, the publishers lobbied for an extension, but in the Statute of Anne (1710) Parliament gave copyright to authors instead. Authors liked this because it freed their works from state control. Nowadays they use copyright much as the state originally did: to censor and ban books − or their publishers do, who have gained a quasi-oligopolistic gatekeeper function, courtesy copyright law. For more on this, see History of Copyright, part 1: Black Death; How to Slow Economic Progress. And now we see copyright being used, along with regulation of gambling, child pornography and terrorism, as an excuse for the state to radically infringe Internet freedom and civil liberties. (Where does IP Rank Among the Worst State Laws?; Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; Copyright and the End of Internet Freedom; Patent vs. Copyright: Which is Worse?)

Patents originated in mercantilism and protectionism; the crown would grant monopolies to favored court cronies, such as monopolies on playing cards, leather, iron, soap, coal, books and wine. The Statute of Monopolies (1624) eliminated much of this but retained the idea of a monopoly grant to an inventor of some useful machine or process. (See “Why ‘Intellectual Property’ is not Genuine Property,” Adam Smith Forum, Moscow; also How to Slow Economic Progress.)

Daily Bell: Didn’t Germany do better WITHOUT strict copyright than Britain did WITH it? Isn’t this the reason that Germany progressed so much in literature, philosophy, mathematics, etc. during the 17th and 18th centuries?

Stephan Kinsella: It probably had something to do with it. As noted in Frank Thadeusz’s article No Copyright Law: The Real Reason for Germany’s Industrial Expansion?, a new study by economic historian Eckhard Hoffner shows that Germany’s lack of copyright in the 19th century led to an unprecedented explosion of publishing, knowledge, etc., unlike in neighboring countries England and France where copyright law enriched publishers but stultified the spread of knowledge and limited publishing to a mass audience. The article claims that this is the main reason that Germany’s production and industry had caught up with everyone else by 1900. This seems believable to me. (See also Jeff Tucker, Germany and Its Industrial Rise: Due to No Copyright.)

Daily Bell: Shouldn’t the enforcement of copyright law be strictly civil? When did it become a criminal offence?

Stephan Kinsella: I am not sure exactly when the criminal penalties were added but as I noted above, there are potentially severe civil and criminal penalties for copyright infringement, including prison, extradition, being banned from the Internet and so on. Patent law can also be enforced not only by a damages award but by a court injunction ordering a competitor to stop making a given product, on pain of contempt of court.

Daily Bell: Why is Kim Dotcom in prison in New Zealand?

Stephan Kinsella: I’ve discussed this case in a number of posts on C4SIF. Basically, he offered a service that permitted people to share files (information) with each other. This crackdown threatens any number of “legitimate” sites and services such as Youtube, Yousendit, Dropbox and so on.

Daily Bell: We’ve postulated a simpler solution than what you present. We’ve pressed the argument for private justice – clan and tribal justice as practiced for thousands of years. In this formulation no “authority” is present but those agreed upon by the two parties to the quarrel/crime. Thus, copyright issues would become incumbent on the COPYRIGHT HOLDER to enforce. In other words, the copyright holder not the state would have the expense of enforcement. What’s your take on this?

Stephan Kinsella: I suppose this could be an improvement but I think it’s still misguided. Any attempt to use force against people using information would be aggression. The only exception would be if someone has contractually agreed to pay a fine if they use information in an unapproved way. But who would sign such a ridiculous contract? I believe there is nothing wrong with using information. If you reveal information to the public by telling people or selling some product that embodies or otherwise makes evident some idea, you have to expect people to learn from this, compete with you, maybe emulate or copy it or even build on and improve on it. As Wendy McElroy has explained, quoting Benjamin Tucker:

“…if a man publicized an idea without the protection of a contract, then he was presumed to be abandoning his exclusive claim to that idea. 

‘If a man scatters money in the street, he does not thereby formally relinquish title to it … but those who pick it up are thereafter considered the rightful owners…. Similarly a man who reproduces his writings by thousands and spreads them everywhere voluntarily abandons his right of privacy and those who read them … no more put themselves by the act under any obligation in regard to the author than those who pick up scattered money put themselves under obligations to the scatterer.’

“Perhaps the essence of Tucker’s approach to intellectual property was best expressed when he exclaimed, ‘You want your invention to yourself? Then keep it to yourself.'”

Daily Bell: Why should the state enforce copyright on behalf of the individual?

Stephan Kinsella: It shouldn’t. In fact, the only thing the state should do is commit suicide.

Daily Bell: Why should disinterested third parties pay for copyright enforcement?

Stephan Kinsella: They shouldn’t and wouldn’t. The whole idea is preposterous and flies in the face of human action. The market provides abundance in the face of physical scarcity. It’s a good thing when we are more productive. Likewise more information and knowledge is good. To try to restrict the spread and use of knowledge is insane.

Daily Bell: If people want to claim copyright and third party contracts, shouldn’t it be up to them to enforce those contracts?

Stephan Kinsella: Sure.

Daily Bell: Is the US legal system − which is a state-run, “public” judicial system − competent and fair in your estimation?

Stephan Kinsella: No. It is thoroughly unjust and illegitimate. It is just the facade of a criminal organization with a pretense to legitimacy.

Daily Bell: Why does the US have so many millions of prisoners, half the world’s population?

Stephan Kinsella: Someone has to be first. But seriously − it’s partly due to our insane war on drugs and also due to the devastation various state (mostly federal) policies have imposed on the black population: minimum wage, welfare, inflation, unemployment, war, Jim Crow and other vestiges of slavery. The US regularly uses IP as an excuse to engage in imperialistic bullying of other nations, to benefit US industries such as Hollywood, the music and software industries, big Pharma and the like. (See Intellectual Property Imperialism and other posts.)

Daily Bell: Is there a power elite intent on moving toward one-world government and are they behind copyright and patent laws?

Stephan Kinsella: I used to be fearful of a one-world state but my current view is that the big powers, primarily the US, are the biggest threat. But yes, the western powers are using copyright and patent to crack down on dissent and to influence other countries’ policies at the behest of the MPAA, RIAA and so on.

Daily Bell: What would be the best approach to socio-politics in your view?

Stephan Kinsella: As I explain in What It Means To Be an Anarcho-Capitalist and What Libertarianism Is, I am definitely an anarchist − have been since 1988 or so. I prefer the term “anarcho-libertarian” nowadays, in part because of confusion spread by some left-libertarians about the connotations of “capitalism.” But I am in favor of a free market and capitalism rightly understood. I am basically a Rothbardian-Hoppean in terms of politics.

Daily Bell: Do you think the Internet itself, via what we call the Internet Reformation, is having a big impact on the powers-that-be and their ability to control society and information?

Stephan Kinsella: As some earlier answers have indicated − yes. The Internet is one of the most significant developments in our lifetime, perhaps in the history of humanity. The state is trying to control the Internet but I believe and hope that by the time the state is fully roused to the danger the Internet poses to it, it will be too late for it to stop it. As a Salon writer said about former congressman/now copyright lobbyist Chris Dodd after the Internet uprising that helped defeat the Stop Online Piracy ACct (SOPA): “No wonder Chris Dodd is so angry. The Internet is treating him like damage, and routing around it.” My hope is that the Internet will find ways to treat the state like the cancerous damage that it is, and route around it and leave it in the dust.

Daily Bell: Where does the IP movement go now? What are the next moves? Are you content with theorizing about it? Is it having a real-world impact? What would that be?

Stephan Kinsella: Ultimately we have to try to highlight the illogic and injustices of the system so that people realize IP is illegitimate. This is an uphill battle, of course. Most people are unprincipled and utilitarian, influenced by state propaganda and economically illiterate. I have pondered trying to set up some kind of patent defense league but have not yet figured out how viable this is. I would also like to urge some group like EFF or Creative Commons to come up with a simple, reliable, inexpensive way for people to abandon their copyrights. At present there is no easy way to do this. And though it is not prudent to advocate that people flout the law, the widespread disregard for copyright and resort to piracy, torrents and encryption will put some limits on how effective copyright enforcement can be.

Daily Bell: Any other points you want to make?

Stephan Kinsella: Let me close with a quote from Lew Rockwell:

“Let me state this as plainly as possible. The enemy is the state. There are other enemies too, but none so fearsome, destructive, dangerous, or culturally and economically debilitating. No matter what other proximate enemy you can name – big business, unions, victim lobbies, foreign lobbies, medical cartels, religious groups, classes, city dwellers, farmers, left-wing professors, right-wing blue-collar workers, or even bankers and arms merchants – none are as horrible as the hydra known as the leviathan state. If you understand this point – and only this point – you can understand the core of libertarian strategy.”

Daily Bell: Any references, web sites, etc. you want to point to?

Stephan Kinsella: As mentioned, I am working on Copy This Book and I also have another book in the works, Law in a Libertarian World: Legal Foundations of a Free Society, an edited selection of my rights and law-related articles. Also, I blog regularly at The Libertarian Standard and C4SIF. Finally, readers can obtain here the slides and audio for the four Mises Academy lectures I delivered last year: Rethinking Intellectual Property, Libertarian Legal Theory, The Social Theory of Hoppe, and Libertarian Controversies.

Daily Bell: Thanks for your time.

Stephan Kinsella: You’re welcome. Thanks for your interest.

We thank Stephan Kinsella for this interview and for the work he has done generally on this issue of copyright. Ideas have ramifications far beyond their apparent initial non-acceptance. What seems impractical now may be common sense tomorrow.

Human history seems to go in cycles. Right now we are seemingly at the top of the totalitarian arc. Cold comfort to most, but there has probably never been a time in human history when there was so much hidden totalitarianism and when a cabal of individuals controlling Money Power were likely making final moves to try to control the world

It is very hard to peer through the confusion purposefully laid by the dynastic families that apparently control central banking (and thus money) around the world. Monetary apologists are out in force these days, claiming that various forms of government money are an antidote to the abuse of mercantilism.

Of course, it is via mercantislim, the abuse of government laws and regulations by private parties, that Money Power retains its clout. Only by controlling the “democratic process” does a tiny group of people retain their hold on the levers of government. Behind the scenes these levers are pulled for their benefit. And THEY do the pulling.

It is mercantilism, the use of public law to reinforce private privilege, that bides at the base of Money Power. And those who are behind Money Power, the assorted apologists and enablers, will use ANY tool to buttress their privilege. Lately, in our view, they’ve been behind the resurgance of Georgism, Greenbackerism, Social Credit and a number of other “movements” that claim “the people” need to take back government.

Of course, it is improbable, these days anyway, that people can “take back” their government. What is more likely is that the powers-that-be are encouraging these movements because they provide a fertile methodology for the continuance of mercantilism. Mercantilism is impossible to apply in the absence of government.

But so long as public nostrums are being peddled, it is fairly easy for Money Power to gain a foothold once again. This is why we are proponents of laissez faire and libertarianism. The solution to the problem of government is not to have more of it “properly controlled,” but to have as LITTLE of it as possible. The less government there is, the less feasible it is to abuse it.

People like Stephen Kinsella do us a great favor when it comes to establishing this sort of argument. Any perspective that shows us how laws and regulations provide artificial benefits to some at the expense of others is of a larger benefit as well because it delegitimizes force.

Force, in fact, is at the heart of government, any government. A handful of people pass the laws that bind us to the state, and generations to come as well. But Rothbardian libertarianism (and Misesian libertarianism generally) has been all about providing an alternative narrative to the force of the state.

Logically, Rothbard, Mises and other Austrian economists have shown us that force is the common currency of government and that voluntary, free-market societies have existed in the past and are likely the better alternative.

By opening up our minds to an alternative view of copyright, Kinsella continues this process. You don’t have to agree with him, of course, and we ourselves have proposed a simpler solution: If people want to enforce copyright (or any other legal nostrum for that matter) let them do so out of their own pocket. That would put an end to the regulatory state in short order.

Beyond that, government doesn’t work on a logical level. Every law and regulation, enforced by the threat of incarceration or even death, fixes prices by transferring wealth from those who earn to those who haven’t. The more price-fixing you have, the more unfair, disorderly and inefficient society becomes. Eventually, society falls apart entirely.

Of course, in the West, one could argue we’re at that stage now. Humans badly need new solutions. People need to understand that they need to think for themselves and exercise their own “human action” in order to help themselves and their families to survive as the world continues its slow-motion spiral into depression and military destruction.

People like Stephen Kinsella are indespensible to this process. Austrian economics, generally, and the larger ambit of free-market thinking it encourages are necessary in providing us with alternatives showing us that the current environment is not the “only alternative.”

Whether you agree with Kinsella or not, we’re happy he’s around and has presented such thought-provoking ideas. It’s people like Kinsella with exciting new ways of looking at sociopolitical and economic issues who provide us with a vision for the future. He is, in fact, part of the so-called “great conversation.”

You can join it, too. Just study the great thinkers and come up with your own ideas. if the ideas are interesting enough, people will start to discuss them and write about them and respond to them. That’s how the Austrian school succeeded and why its ideas are now part of the larger economic dialogue.

We know it’s a real discipline because it builds on thousands of years of economic history. Don’t let the sophists and the wily ones distract you from the truth. As free-market thinking succeeds, they are coming out in force. But the bottom line, unfortunately, is that govenment is force, no matter the “law” it is enforcing.

Of course, there is no absolute freedom and human beings are innately tribal. But within this context, we choose to advocate for freedom above all. One travels toward minarchism via rigorous anarchic logic, not by advocating MORE government. We’re glad that people like Kinsella give us additional intellectual tools to make persuasive arguments for a less coercive society.

Update: See the comments on the LSU board TigerDroppings; and on the Mises Community.

1 comment… add one

  • While IP may have problems, it is not credible that someone who produces a novel or poem or song would not have some kind of property rights in the product. In any case, more to the point of this entry, the nonexistence of something–a negative–is very tough to prove. Rather what can be proven, as in criminal trials, is the lack of an adequate proof or case for its existence. So all that may be true is that no proof of IP has been successful. But that would require a rather elaborate survey and examination of all efforts to defend IP.

    Reply

Leave a Comment

Current ye@r *

Notify me of followup comments via e-mail. You can also subscribe without commenting.