Top State Evils: A Scorecard of Libertarian Progress

(Austrian) Economics, Anti-Statism, IP Law, Police Statism, War
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The most evil and harmful state laws, institutions, and policies are, I believe:

  • war;
  • the Fed/central banking/fiat money;
  • government schools;
  • taxation;
  • the drug war;
  • intellectual property (patent and copyright).1
You could also mention the regulatory state and the entitlement state, but the above makes a pretty good listing of the top things we libertarians would get rid of if we could.

How are we doing on these issues? I spoke with some radical libertarian friends—it’s fun musing as to which one you would abolish first, if you could—and here is the basic take:

  • war: not great, but they are getting harder for modern debt-laden welfare-states to afford;
  • the Fed/central banking/fiat money: not great, but bitcoin could pose a threat;
  • government schools: not great, but at least, in the US, homeschooling and private schools are legal;
  • taxation: not great, and getting worse, but there seems to be a limit to the level of taxes the state can get away with imposing on the economy;
  • the drug war: still horrible, but significant inroads have been made in the last election, with marijuana being legalized on a state-law basis by Washington and Colorado; and
  • intellectual property: getting more and more out of hand, but being seen as more and more ridiculous and unjust. Copyright is getting easier to evade with various technologies like encryption and bit torrent; and patents are being seen more and more as ridiculous and protectionist.

Overall, the biggest cause for hope is probably the recent progress made in the insane, evil war on drugs.

 


  1. See Where does IP Rank Among the Worst State Laws? 

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TLS Podcast Picks: Cuba, Public Pensions, 3D Printing and IP

(Austrian) Economics, Anti-Statism, IP Law, Libertarian Theory, Podcast Picks, Science, Technology
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Recommended podcasts:

Until the 1959 ouster of dictator Fulgencio Batista, Cuba’s legislature convened in the domed Capitolio building in Havana. Today it’s a symbol of a prerevolutionary Cuba that no one under the age of 50 experienced. © Paolo Pellegrin/National Geographic

  • Cuba’s New Now,” KERA Think (Nov. 8, 2012). Fascinating interview by the amazing KERA Think host, Krys Boyd: “What has changed in Cuba since Fidel Castro ostensibly stepped away from power and are the changes happening fast enough for the Cuban people? We’ll talk this hour with National Geographic Magazine contributor Cynthia Gorney, whose story “Cuba’s New Now” appears in the current issue of the magazine.”
  • Joshua Rauh on Public Pensions,” EconTalk. Chilling discussion of the looming public pension crisis, with host Russ Roberts: “Joshua Rauh, Professor of Finance at Stanford University’s Graduate School of Business and a senior fellow at Stanford University’s Hoover Institution, talks with EconTalk host Russ Roberts about the unfunded liabilities from state employee pensions. The publicly stated shortfall in revenue relative to promised pensions is about $1 trillion. Rauh estimates the number to be over $4 trillion. Rauh explains why that number is more realistic, how the problem grew in recent years, and how the fiscal situation might be fixed moving forward. He also discusses some of the political and legal choices that we are likely to face going forward as states face strained budgets from promises made in the past to retired workers.” My guess? States and localities will end up declaring bankruptcy to modify their pension obligations.
  • Chris Anderson on 3D Printing and the Maker Movement,” Surprisingly Free. “Chris Anderson, former Wired magazine editor-in-chief and author of Makers: The New Industrial Revolution, describes what he calls the maker movement. According to Anderson, modern technologies, such as 3D printing and open source design, are democratizing manufacturing. The same disruption that digital technologies brought to information goods like music, movies and publishing will soon make its way to the world of physical goods, he says.” A good discussion of IP implications of 3D printing begins around 14:00.
  • My recent Libertopia talk, Intellectual Nonsense: Fallacious Arguments for IP.
  • My interview, “Silver for the People Interview: Stephan Kinsella—Copyright Laws Cost the U.S. $Billions in Economic Growth” (at Libertopia, San Diego, Oct. 12, 2012).

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Ayn Rand and Atlas Shrugged, Part II: Confused on Copyright and Patent

IP Law, Protectionism
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Reports about the new movie Atlas Shrugged: Part II indicate that it highlights Ayn Rand’s deep confusion on the whole issue of intellectual property (IP)—e.g,. from my friend Jacob Huebert.  Stephanie Murphy mentions some of the IP confusion in the film in her recent PorcTherapy podcast (at around 1:05). And Chris Bassil, of Hamsterdam Economics, in Atlas Shrugged Part II: Hank Rearden Confuses his Principles, notes:

At one point, industrial steel magnate and metal manufacturer Hank Rearden is ordered by the state to sell his Rearden metal to them, which he has up until this point been refusing to do. He is also forced to sign away his rights to the metal, so that the state can distribute its procedure to other manufacturers and it can be universally produced. At this point, Rearden accuses the agent in his office of trying to take his patents from him.

This, to me, is a philosophically complicated position. Now, Ayn Rand, despite taking a position against the government in many cases, was a huge supporter of patents and intellectual property rights. As Stephan Kinsella has pointed out here, Rand endorsed them on a number of occasions:

Patents are the heart and core of property rights.

Intellectual property is the most important field of law.

Without getting into the larger points concerning intellectual property (which Stephan Kinsella covers well here, and which I discussed briefly in the Duke University Chronicle here), I think that Rearden’s position on this is a bit contradictory. He is indignant that the state would move to deprive him of his patents, thereby also depriving him of the fruits of his labors. But isn’t that what those patents do to others? Don’t they prevent others who develop similar products from bringing them to the market? It is true that, within the context of the film, Rearden plays a heroic producer who alone seems able to keep the steel industry afloat. But this glosses over the daily considerations of intellectual property laws, which are seldom enforced on such a genuine basis.

Furthermore, Rearden’s position seems to me to be a little bit disingenuous. After all, he opposes the state’s use of force. In fact, he constantly pushes state officials to actually endorse the use of force instead of merely allowing it to be implied. At the same time, however, his patents themselves rest on just such a threat. I see this as something of a double standard.

Of course, Rand might respond that the force backing Rearden’s patent is legitimate, since, in her view, patents are themselves legitimate derivations of individual property rights. I don’t agree with this either, but that would require a much more extensive blog post to cover. For now, see my article in the Chronicle on it, and Kinsella’s book, articles, YouTube videos, or even audiobooks available for free from the Mises Institute on iTunes U.

Overall, this is why I think that Ayn Rand’s work largely functions more as a gateway to discovery of free-market ideas rather than as a truly solid foundation for them. In my opinion, much of what Rand was right about is better said by others, and there was a lot that I don’t think she was right about, either.

And as Jeff Tucker notes in his recent comments on the movie:

Of course this gets us into the Randian view of IP, that great industrial ideas — appearing out of nowhere in the minds of a few — must somehow be assigned to owners and protected by government. And sure enough, patents and copyrights as property play a major role in Atlas II, as when Hank Reardon is blackmailed into assigning his patents as a gift to the government. It’s a scene that completely overlooks that these patents themselves were actually granted by government in the first place and would not exist in the free market.

In fact, for any viewer schooled in the role of patents today, this scene actually makes the viewer less sympathetic to Reardon. For a brief moment, he actually looks like a member of the monopolist class who is dependent on government favors. Not good. This scene reinforces for me my sense that the single biggest mistake Rand made was not in her ethics, economics, or religion but in her view that ideas are property and must receive government codification.

I haven’t seen either Part I or Part II yet of the movie versions of Atlas, but none of this is surprising to me, given Rand’s completely confused IP views. Some of these IP views are of course present in her magnum opus Atlas Shrugged and could be expected to leak into the films (at least the IP issue doesn’t dominate or ruin Atlas, like it does The Fountainhead, which basically glorifies IP terrorism).  Rand’s view of IP and rights was very confused. I have referred to it as libertarian “creationism” and have criticized it, as well as her confused view of the relationship between labor, ownership, homesteading, and production (see, e.g., most recently, my recenty speech Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012), and various blog posts on these and related fallacies and confusions, e.g. Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging’Rand on IP, Owning “Values”, and ‘Rearrangement Rights’Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors, and Hume on Intellectual Property and the Problematic “Labor” Metaphor. …

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Blackmail, Copyright, Libel and Free Speech

IP Law, Technology
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A recent Volokh post on Blackmail discusses the perennial question of when speech becomes constitutionally unprotected blackmail. The idea here is that there is a “tension” between blackmail law and free speech rights. And even though we know blackmail law suppresses free speech, most people are in favor of it anyway. Volokh calls this dilemma “one of the thorniest conceptual questions in all of jurisprudence” and summaries what is “sometimes called the Blackmail Paradox”. The blackmail paradox observes that A is generally free to publish embarrassing information about B, or to keep quiet about it; and A is free to ask B for money to do or refrain from doing something within A’s rights. Yet

if I ask you for money or a service in exchange for my not revealing embarrassing information about you, then that’s a crime.

What’s the explanation? Legal scholars have debated this for decades, and to my knowledge have not come up with a perfectly satisfactory answer.

I disagree with Volokh. The answer is simple: blackmail law is incompatible with individual rights and should not exist, as argued by Walter Block and Murray N. Rothbard.1 The paradox only arises when you try to justify free speech and a law that undermines it. Yes, there is a “tension” between such law and free speech; it should be resolved not by finding the right “balance,” but by rejecting the unlibertarian law altogether.

Intellectual property, in its various forms—including patent and trademark, but most especially copyright—also limits, chills, and suppresses freedom of speech and of the press. And thus in these cases too, mainstreamers and statists, who think we “must” have these laws, but who recognize the tension between them and civil liberties, fall back on the confused and utterly unprincipled “we must find a balance” approach. As Ayn Rand might say, you don’t want to find a balance between nutritious food and poison.

As noted, trademark and even patent, and ohter types of IP such as publicity rights, undermine freedom of speech.2 But the most pernicious in this respect is copyright, which threatens not only freedom of the press and freedom of speech, but Internet freedom itself.3 In the name of copyright, books are censored and suppressed and chilled.4 As noted, this is a vivid illustration of a situation where libertarians and classical liberals are forced to try to adopt a “balance” between fake, positive-law rights and libertarian rights. Once an artificial, non-libertarian right is enshrined in law, it necessarily invades the turf of real, negative rights, much like printing more money dilutes the value of existing money by way of inflation.

Even the courts recognize that copyright (and defamation) laws are incompatible with free speech and the First Amendment. This is actually an argument that these and related laws are unconstitutional. After all, federal legislation on trademark and defamation (libel)is not even authorized in the Constitution. So such laws are doubly unconstitutional: they are not authorized, and are hus ultra vires, and they are incompatible with the First Amendment. Copyright law, by contrast, is authorized in the Constitution. However, the Copyright Act is clearly incompatible with the First Amendendment. What is one to do, in the case of such a conflict? Well in this case, the First Amendment was ratified in 1791, two years after the Constitution and its copyright clause (1789). Therefore, to the extent of any conflict, the later-ratified provision takes precedence. In other words, the First Amendment makes copyright uconstitutional. Not that the courts see it that way, of course. But still.5

The point is: libertarians and others who believe in civil liberties, Internet freedom, freedom of speech and of hte press, should oppose positive state laws that are inconsistent with theese rights, including blackmail, defamation, trademark, and copyright law.

Addendum: Another “tension” in federal law is that between antitrust and trademark law. The former purports to oppose monopolies, while the latter grants them. See Pro-IP Libertarians Upset about FTC Poaching Patent TurfState Antitrust (anti-monopoly) law versus state IP (pro-monopoly) law. In this case, both IP and antitrust law need to go: IP law, because it forms monopolies that antitrust law claims to oppose; antitrust law, because it focuses on private companies, which cannot form true monopolies, and ignores the real monopolies formed by the state itself.

[C4SIF]


  1. See Rothbard, “Knowledge, True and False,” in the Ethics of Liberty; and various articles on blackmail on Block’s publications page (including our co-authored piece The Second Paradox of Blackmail), Defending the Undefendable, ch. 6, and Block’s Legalize Blackmail (Straylight, forthcoming 2012).  

  2. Trademark as Censorship: Newspaper Claims Satirical Blogger Mentioning Its Name Is Trademark Infringement; Copyright and Free Trade; Patents and CensorshipPatents Threaten To Silence A Little Girl, Literally; Cato/Reason/CEO brief opposing medical diagnostic process patents as violating freedom of speechWilt Chamberlain’s Family Tries To Block Film About His College Years, Claiming ‘Publicity Rights’Michael Jordan Sues Grocery Stores for Hall of Fame Congratulatory Ads. See also “Types of Intellectual Property.” 

  3. See Where does IP Rank Among the Worst State Laws?

  4. Howard Hughes, Copyright, and Censorship; The Patent, Copyright, Trademark, and Trade Secret Horror Files; Should Copyright Be Allowed to Override Speech Rights?; Libraries: Prepare to burn foreign books, courtesy copyright law; Paramount Trying to Ban “Godfather” Sequels with Copyright; Federalist Society Asks: What’s the Right Amount of Censorship?other posts

  5. Copyright Censorship versus Free Speech and Human Rights; Excessive Fines and the Eighth Amendment; Copyright is Unconstitutional

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Kinsella Interview on Net Neutrality: Austrian AV Club—Mises Institute Canada

IP Law, Police Statism, Statism, Technology
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I was interviewed a couple weeks ago by Redmond Weissenberger, Director of the Ludwig von Mises Institute of Canada. We had a long-ranging discussion on the issue of net neutrality, and we touched on other issues as well including various ways the state impinges on Internet freedom, such as in the name of IP (SOPA, ACTA), child pornography, terrorism, online gambling, and so on.

For background on some of the issues discussed, see my posts Net Neutrality DevelopmentsKinsella on This Week in Law discussing IP, Net NeutralityAgainst Net Neutrality.

[C4SIF]

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