Tag Archives: Stephan Kinsella

Rethinking Intellectual Property: History, Theory, and Economics

Mises Daily: Friday, October 22, 2010 by 

In previous decades libertarians viewed intellectual property as a boring and technical area of the law, the province of legal specialists. They also assumed it to be a legitimate, if arcane, type of property in a capitalist, free-market society. After all, it’s in the Constitution, and Ayn Rand blessed it. But we don’t ignore it anymore, and we don’t take its legitimacy for granted. We can’t. The injustices of IP have multiplied in the Internet age and are staring us in the face.

The advent of the Internet, digital information, and easy file-sharing and duplication have been met with ever-more draconian enforcement of the state’s IP law, and with incessant lobbying for legislation to make IP stronger and last longer. Just as the state wants to tax everything that moves, intellectual properteers want to cover ever-more subjects of life with IP protection. But everyone — the young, students, and libertarians — copies files, and we all regularly hear stories about insane patent and copyright lawsuits. Single moms and college students are sued for file-sharing. The IP barons seek three-strikes-and-you’re-out laws banishing accused offenders from the Internet for life. They seek international enforcement of their national monopoly rights, to harass street vendors in third-world countries. The legislators, who are in their pockets, have already outlawed the possession of devices that might be used to crack encryption codes. Their propaganda — in TV commercials, video games, magazine ads, and unskippable warnings at the beginning of DVD movies — hectors kids and college students about how uncool it is to copy.

We hear regularly about multimillion- or even billion-dollar patent lawsuits, and about the millions of dollars spent by corporations on patent attorneys and litigators just to cross-license with each other, leaving smaller companies outside the walls of the barriers to entry erected on these patent arsenals. In the name of IP, books are banned, movies are ordered destroyed, singers are prevented from singing, car owners prevented from photographing their own cars, churches are prohibited from having Super Bowl parties, and imports of watches and reimports of drugs are blocked. And a little mouse keeps getting his life extended, thanks to copyright — from the original 14 years to over 100. Trumped-up charges of IP infringement are used as an excuse by the government to investigate political opponents.[1] IP may still be arcane, but it’s not boring anymore. Scary and outrageous, maybe, but not boring.

Everyone knows something is wrong here. Everyone. Except perhaps for patent lawyers, federal judges, and Orrin Hatch. I take that back. I think even most patent lawyers know something is wrong. But mired in a mainstream, quasi-statist mindset, most people are unable to think clearly about this issue. For libertarians — especially those with a principled view of individual rights and an understanding of Austrian economics — there is more hope.

We must start by taking a close look at the traditional libertarian assumption that IP is, in fact, a legitimate type of property right. And it turns out that advocates of the free market have made a mistake all along. Patent and copyright, to take the two worst manifestations of IP, are nothing but state monopolies that violate property rights. IP is antithetical to capitalism and the free market.

And should this be any surprise? Copyright is rooted in censorship. No wonder it still leads to censorship today. Patent law finds its origins in mercantilist monopoly grants, and even legalized plunder — letters patent were used to legalize piracy in the 16th century — making it ironic for IP to be used against modern-day “pirates” who are not real pirates at all.

Once IP is seen this way, the scales fall from one’s eyes. It’s a transformative moment in one’s libertarian life, akin to the moment when one finally admits to himself that even the minimal state is criminal and thus adopts anarchism. Realizing that IP is not part of a free-market order makes possible a reassessment of aspects of libertarianism, economics, or social thought hitherto neglected or seen confusingly through the IP haze.

But this does not mean that once you realize IP is unlibertarian that is all there is to know. There is so much more. This is a difficult subject in the sense that it requires serious thought, not just a quick intuition. As noted above, libertarians are beginning to grapple with this issue in recent years as we enter the digital-information age. The realization that IP is incompatible with libertarianism is forcing a rethinking about topics that have been neglected or taken for granted.

While the fairly recent advent of the digital revolution has caused most libertarians to turn their attention to this issue, I started focusing on this issue intensely almost 20 years ago, as a libertarian beginning to practice patent law. I have been criticizing the validity of IP in print since 1995,[2] and I kept learning as other insights unfolded in the ensuing fifteen years. The history of IP is illuminating. For example, it was not simply invented by infallible, well-intentioned, protolibertarian framers of the Constitution, but originated in censorship and mercantilism. Seen in this light, IP is seen as another mercantilist-corporatist state intervention in the free market. And one simply must have a sound, coherent, and libertarian understanding of property rights, the nature ofhomesteading, and the nature of contractual exchange, to understand the IP issue. Or, rather, in wrapping your head around IP, you hone and deepen your understanding of property rights, and make new connections. In so doing, new insights become possible, indeed inevitable.

To develop an understanding of property, contract, and homesteading sophisticated enough to understand the nature of IP and exactly how and why it does not fit into libertarianism and the free market, you must look closer at the nature of homesteading (Locke), contract theory (Evers-Rothbard), and at the nature and function of property rights. This last category, in particular, provides a good illustration of why Austrians are especially suited to libertarian theorizing, as it requires a close study of praxeology and the very structure of human action. On this topic, we must examine the work of Austrian luminaries such as Mises, Rothbard, and Hoppe to fully appreciate the relationship between scarcity and property rights, and the unique role of ideas and emulation in a free market and in society in general.

The purpose of my Mises Academy course, “Rethinking Intellectual Property: History, Theory, and Economics” (six weeks, starting November 1, with Monday evening lecture/question-and-answer sessions), is to explore these issues in detail. The history of IP is little known; we will cover it, and expose its statist, mercantilist, monopolistic origins. Advocates of IP are often shamelessly ignorant of the nature and details of the very system they support; even skeptics and critics are often unclear about what IP law is. The course will therefore provide an overview of modern intellectual-property law, distinguishing between the various types of IP, with examples and illustrations.

The course will explore and offer critical analysis of various utilitarian and deontological justifications offered for IP. We will seek to analyze the proper relationship between property, scarcity, and ideas, and to integrate the proper perspective on IP and the nature of ideas, emulation, and information with Austrian economics and libertarian theory.

As to putting some of these ideas into practice, the course will conclude by studying or proposing various legal and political reforms that might be implemented. Finally, because even those skeptical of IP naturally ask, “but how would I make money doing X without copyright and patent?,” we will discuss likely types of market and social institutions and practices that could be expected to arise in a post-IP world.

Here are some of the topics that the course will cover:

  • The statist origins of patent and copyright, and how IP, used to persecute “pirates” today, was used in the past to support actual piracy;
  • The types of IP, and the difference between copyright and patent — and trade secret, trademark, moral rights, reputation rights, database rights, and sui generis IP rights like boat-hull designs and semiconductor maskwork protection;
  • Problems with utilitarian arguments in general, and with utilitarian arguments for IP;
  • Why empirical arguments for IP’s “success” are flawed;
  • How open-source software depends on IP;
  • Why it’s almost impossible to get rid of copyright, and why it’s not hypocritical to oppose IP and still “have” a copyright;
  • Why patent and copyright cannot originate in the common law (also: what is wrong with legislation, anyway; and what “common law copyright” was; bonus: what’s a “poor man’s patent”);
  • What is the most libertarian type of copyright license to use in today’s world;
  • The relationship between scarcity and property;
  • Homesteading theory, the nature of human action and contract, and their relationship to property and scarcity;
  • Why IP cannot be based on contract;
  • How most patent lawsuits have nothing to do with “copying”;
  • Central mistakes and confusions of natural-law arguments for IP;
  • Common fallacies and mistakes of pro-IP arguments, such as the implicit idea that there are property rights in labor, or that creation is an independent source of rights;
  • What Mises, Hayek, and Rothbard, as well as other notable economists such as Fritz Machlup, thought about IP;
  • The IP arguments of early libertarians like Benjamin Tucker and Lysander Spooner;
  • Legal and political reforms to improve or abolish IP; and
  • Market and social institutions and practices that would arise in a post-IP world.

As noted above, coming to grips with IP is not easy. Thinking it through helps firm up the case for property rights and contract. And the implications of what we learn extend far beyond just this area; it reaches into social theory and competition theory as well.

Mises Academy: Stephan Kinsella teaches Rethinking Intellectual Property: History, Theory, and Economics

Those already convinced by the general argument against IP thus have much to learn in this course, which will deepen and extend their understanding of not only IP theory but also libertarian theory and economics. The course is also ideal for those who are on the fence, or who are confused, about IP; no intellectual conformity is required. Libertarians who think there are good arguments for IP are also welcome — at the least, they can test their arguments against the best we critics have to offer, and perhaps strengthen, modify, or deepen their own views about the nature of ideas, government, and property rights. (For further details about the course, see my interview about it with Jeff Tucker.)

This should be a fun course. I look forward to sharing ideas with you!

Notes

[1] Some examples are collected in my post “The Patent, Copyright, Trademark, and Trade Secret Horror Files.”

[2] See my various IP-related publications here.

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About the Author

Photo of Stephan    Kinsella

Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers. See his blog. Send him mail.

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Intellectual Freedom and Learning Versus Patent and Copyright

Introduction

I’ve given several speeches about intellectual property (IP).1 Tonight I’ll take a somewhat different approach to the subject. Let me ask you a general question. Why are you here at this great (government) school? It’s to have fun, right? But it is also to learn; that is the basic purpose of education: to learn. To be sure, we learn things all the time. A university is a more formalized way of learning, but learning as a general matter is very important. This may sound like a trite observation. We make these comments all the time: “Education is important. Learning is good.”

The Role of Learning and Knowledge in Human Action

But this leads me to the focus of my talk, which is about learning and the importance of information and knowledge, and copying and emulation on the market and in life in general. So let’s think about how learning is important and how it’s used in everyday life.

Ludwig von Mises, the famous Austrian economist, the father of modern Austrian economics, systematized the study of human action and gave it a name: praxeology. This is the study of the logic of human action. Mises analyzes action in very simple, elementary terms. He breaks it down. I want you to think about it. If you haven’t heard of praxeology, don’t be daunted by the expression. The idea is to look at what the components of human action are; what we do every day, all the time.2

The Structure of Human Action: Means and Ends

When a human acts, what is he doing? He looks around the world. He chooses an end or a goal that he wants to achieve, some purpose of his, something he wants to happen, something that would not happen without his active intervention in the world. So he chooses one action over another. He chooses his highest value action or end, and demonstrates this preference by his action.

So we have a chosen end, or goal. But how does an actor achieve the goal he has chosen? He has to select certain means. This is what Mises and the Austrians call means: things that are physically efficacious, things that let you causally interfere in the world to achieve some desired goal.

Let’s take an example. You’re all eating now so let’s take a food example. Let’s say you’re hungry. So you say, “I know I like cake. I know I like chocolate cake. I think I’ll try to acquire a chocolate cake.”

You can see right off the bat that knowledge has entered the picture; the knowledge of what you like. Maybe you’ve learned this from experience, but knowledge is already playing a role in your decisions and actions. It has informed your choice of ends.

So how do you achieve your end? How do you get the chocolate cake? Well, you might obtain a recipe for cake and get the ingredients and tools to make the cake: mixing bowl, eggs, flour, spoon, kitchen, oven. Then you spend some time and effort and make a cake. You make that cake instead ofwatching television or getting your car washed or changing your clothes or making a vanilla cake.

This illustrates that human action is the purposeful use of means to achieve a desired end or result.3 Notice that the means you employ have to be physical or scarce resources, things that are real things in the world, things that you can affect, like the mixing bowl and the oven.4 This is what you employ to achieve your goal. The Austrians, especially Mises, go into the logical structure of human action, which we just discussed, and show that it implies so many things.5 For example, it implies opportunity cost. You choose this goal instead of the other ends. The things that you did not choose are the opportunity cost of your action.

Action also presupposes causality. You have to believe there is a way to achieve your result by manipulating the world in accordance with time-invariant causal laws. The structure of human action also has the concept of profit and loss built in, which is not only a monetary concept, but a psychic concept. Not psychic in the Shirley MacLaine sense, but psychic in the sense of pertaining to mental phenomenon, such as value and ends. For example, if you achieve your goal, which is to obtain a nice chocolate cake, and if it is as you envisioned it, and if you enjoyed it like you expected that you would, then you’ve achieved a profit. If it turns out to be a failure or you don’t enjoy it for some reason, then there is a loss.6

Knowledge as a Guide to Action

Where does this leave the role of learning? Learning is important because it is how we acquire information. Information is important because it gives us knowledge of how the world is. The more knowledge you have, the wider is your universe of choices. You have more ends to choose from, for example.7

Let’s say one person only knows the possibility of making a vanilla cake or a chocolate cake. If he learns that it’s possible to make a coconut cake, now he can choose between three possible goals. So his knowledge of the ends can expand and give him a wider array of choices.

Importantly, you also have to have knowledge of means and causal laws of the world because this informs your choice of means. To be able to choose a given end, you also need to know how to achieve it. You need to have a recipe.8 I don’t mean only food recipes. A recipe in this sense is just a general way to do something by exploiting resources in the world to achieve some end.

You know, for example, that if you take an egg, some flour, and chocolate, mix them in a certain way, and bake it, then, after a while, you have something that is edible. So the role of knowledge in action is to guide action. It is not the means of action. For example, you might know five different ways of getting the cake you desire. One may be to steal the cake. It’s immoral, but it’s a possible way. One may be to bake the cake. Another may be to purchase the cake. Yet another is to hire someone to bake the cake for you. So, in other words, the more knowledge you have, the wider the universe of ends and means that you have to draw on. This is the reason why learning is good.

Consider the great creators in the past — Shakespeare, Michelangelo, Bach, say — they drew upon knowledge that they acquired from the culture they were born into. Even the greatest of inventors, innovators, and creators didn’t think of everything on their own.

Scarcity, the Free Market, and Abundance

Now, let’s think about the role of scarcity in the free market. Given the above-mentioned understanding of what human action is, this very simple structural view of human action — that we use knowledge to guide our choices of ends and of what means to use to achieve the chosen ends — what is the role of external resources? That is, external objects, scarce things in the world? The role of these things is to be used by men to achieve their ends. Knowledge guides your action. It helps you choose what you want to do.

So reflect on the purpose of the free market system. What is its purpose, its role? What is its function or result? It is to help us achieve abundance. We live in a world of scarcity. We don’t live in the Garden of Eden.9 We live in a world where survival is not easy. It’s difficult. We have to find ways to survive because there is scarcity. There aren’t bananas hanging from every tree, enough for everyone to survive off of, but the free market operates to unleash creative energy and to allow tremendous productivity.

If you think about it, although we have scarcity and there is nothing we can do about this fundamental fact of the universe, the free market, in a way, helps us fight and overcome this situation.10 The thing is, the only way you can do this is by having a free market. A free market has to be built on private property principles. The reason we have to have private property is because these things are scarce. Economists call them rivalrous because you can have rivalry or fighting over them. For example, for a productive use to be made of the spoon, in the cake example, someone has to own the spoon. Someone has to be the one person who has the right to control that spoon. How do other people know that a given resource is owned, and who owns it? Property rights set up objective borders. They tell you who owns things. They’re visible and observable.11

This doesn’t mean there is no crime. This doesn’t mean that everybody respects these property rights. There can be thieves, but at least with thieves we can theoretically deal with them with crime prevention techniques. Paraphrasing Hans-Herman Hoppe, thieves and criminals are just a technical problem.12 People who want to live in harmony and use these resources productively have to have a system of property rights to allocate the use of the spoon.

Sometimes it’s said that libertarians believe in property rights and that other political systems do not uphold property rights. This is true in a sense, if you mean property rights in a particular way, but if by “property rights” you mean the right to control a scarce resource, which is what property — ownership — is,13 then every system on the face of the earth upholds some form of property rights. Every system on the earth will have a legal rule that says who is the owner of this platform, who is the owner of that factory, who is the owner of your paycheck.

For example, in the modern quasi-socialist welfare state that we live in today, the ownership rule is that the government owns about half of my paycheck. It’s clear there are property rights. It’s just that I only have about half and the government has the other half.

So in every society the legal system assigns an owner to a given contestable resource. What’s unique about libertarianism is not that we believe in property rights; everyone does. Rather, it’s our particular property rights scheme, which is basically the spinning out of the Lockean idea that the person who owns a given contested resource is the first user of it, or someone that he sold or gave the property to. The purpose of property rights is to permit us to peacefully, productively, and cooperatively use these things that are, unfortunately, scarce and cannot be used by more than one person at a time.14

Cooperation, Emulation, and Competition

I don’t know if all of you have heard of the Misesian “calculation argument,” but in the 1920s, Ludwig von Mises published a seminal paper that explained why socialism cannot work, why economics is literally impossible under full-fledged socialism.15 The reason is there is no way to compare competing projects unless you can do so in cardinal, numerical terms. It’s a very simple idea. You can’t compare building a bridge to planting an orchard. They’re not comparable units. Mises realized that in a free market system with money prices, everything resolves in terms of money. You can compare with money prices. The problem in socialism is you don’t have real money prices. You don’t have real money prices because there is no private property in the means of production. This is the basic insight of Mises as to exactly why a private property system permits the free market to be prosperous and to generate wealth and to fight this condition of scarcity.

The market is producing more things all the time. It doesn’t ever eliminate scarcity, but it fights it. If we had the government off of our backs, you could probably buy a Mercedes for $500. You could buy a microwave oven for a penny. It would not be infinitely plentiful, but it would be so plentiful everyone could have what they wanted.16

What are the key elements of a free market economy that allow this to happen? One is cooperation. The free market, by setting up property borders, allows people to cooperate instead of fighting over a resource.

It also gives rise to competition. My friend Jeff Tucker, of the Mises Institute, related to me a really good formulation of what competition is that was given to him by Larry Reed who is now the president of FEE, the Foundation for Economic Education. Reed’s formulation is “competition is the striving for excellence in the service of others.” That’s true. That’s what it is. You try to constantly improve what you’re making to try to please the customer. This gives rise to a relentless effort on the part of the people in the market to lower cost, to make things more efficiently, to serve customers the best you can because you’re in competition with others.

But we’ve left out one thing. Remember we talked about human action. A key aspect of human action is knowledge. You have to have knowledge to guide your actions. So how does this relate to the market? What’s the role of knowledge in human action, in the market context? It’s emulation.17 If you see someone successful in the market, you emulate them. This is how competition arises. You see someone attracting customers. Let’s say some guy invents a slushee stand and he’s getting a lot of customers. You might build your own slushee stand to compete with him. You copied his idea. So what? Customers are better off. Now the original guy might improve his slushee stand. He might offer more flavors.

This relentless striving to please the customer benefits everyone. This is the process of the market and it presupposes the idea of copying information, learning information, emulating. Competition means you can compete with someone, but you have to respect their property rights. You cannot trespass against them. You can’t steal your competition’s property, but you can “steal” their customers because they don’t own their customers.

Let’s tie this back to the structure of human action. Remember, we said human action uses means and it is guided by knowledge. So the means of action need to be privately owned only because they’re scarce. That’s why we have to have property in those things. Now, you can’t say scarcity is a bad thing, as it’s part of the nature of reality, but it’s definitely a challenge. We humans have to try to overcome scarcity. The free market allows us to create wealth.

Creation of Wealth versus Creation of Property

Now, I want you to think about this for a second. What does it mean to create wealth? Does it mean to actually create an object out of thin air? No. It means to make things that you own more valuable. That increases wealth.18

Imagine two people engaging in a simple exchange. I give you my goat and you give me some eggs from your chickens. Was anything physically created? No. There was just an exchange. But as we know from very basic Austrian economics that one transaction increased the sum total of wealth in society because I wouldn’t have given you my goat if I didn’t want the eggs more. So after the exchange, I’m better off and the same thing for the other guy.19

So just by allowing people freedom and respecting property rights, you can increase wealth, but the key thing to recognize is that wealth is not an object. Value is not a substance. Things are more valuable because they’re in a different shape. They’re more valuable to customers, for example. When we talk about creating wealth, what we mean is we are rearranging things that we already own, rearranging scarce resources to make them more valuable to customers or to yourself.

So, yes, you use your creativity, you use labor to do these things. Labor and creativity can be said to create wealth, but that is just another way of saying that one’s labor and actions are guided by knowledge to transform things that you own already to make them more valuable to you or to others.

I emphasize this because there’s an insidious argument that is commonly used, even by libertarians, by proponents of this idea of intellectual property. The argument goes like this:

Oh sure, I agree with you that if you find something in the state of nature that was never owned, you’re the owner. Finders keepers. Yes, that is one source of ownership. And sure, I agree that if someone transfers something to you by contract, which can include gifts, a contractual consensual voluntary transfer, that is another way you can come to own something.20 That’s another way of acquiring property rights.

So, they admit that we’re right on two things: you can come to own some scarce resource by finding it or buying it.

But they say if you create it, you also own it. It just seems natural. We’re used to thinking about this because what do we say in America? “You makemoney.” Now, all that really means is you had a profit from a certain entrepreneurial endeavor. These metaphors can mislead us if we’re not careful.21 You don’t really make money. (Now the Fed makes money, but that’s a different story! They don’t make real money. They make these artificial tickets we have now by printing them.)

Then they will say there are three ways to acquire ownership of things: you can find it, you can buy it, or you can create it. If you create it you should own it. It’s natural. If there is a thing that someone created, and it’s got to have an owner, well I guess it’s got to be the creator. He’s got the best connection to it. It just makes sense, right? Then they’ll say, well, who created that song? Didn’t you create that song? Who created that painting? Didn’t you create that painting? So, you’re the owner of it. The problem is they’re wrong. Creation is not a third means of acquiring ownership of things.

We can see it in the examples I gave already. Creation just means transforming things you own already. Think about a man who has a big chunk of marble. He owns it because he found it. He didn’t create any new ownable thing. I guess you could say he’s creative in finding it, but he’s not creative in the modern intellectual property sense. His neighbor sneaks over in the middle of the night and carves a statue out of it. Who owns the statue? Under current law, it’s indeterminate. Under libertarian law, the original guy owns it. This is a clear example that creation by the neighbor is notsufficient to give rights. It’s also not necessary since the first guy acquired ownership because he found it. So you can see that creation is neither necessary nor sufficient for property rights and things. Creation is not an independent source of ownership or property rights.

This is the mistake that is made over and over again by pro-IP libertarians. One libertarian philosopher says there are ontologically many types of things out there. Sure there are tangible things, but there are poems and movies. Why can’t we own those too?22

But what about, say, welfare rights? If rights are good, why can’t there by welfare rights? What do modern liberals say? They say, “oh, I believe in property rights, but there is “also” a right to education and a right to food. Now, of course, we libertarians already understand that the problem with this idea is that these rights are not free. They come from something else. When you have a set of rights allocated and you start giving out more rights, they have to start chipping into the previous ones recognized. They have to come from something else. Rights and obligations are correlative. If you have a right to education or welfare, someone’s got to provide it. They have to provide it out of their property. So recognizing “new” rights just amounts to a redistribution of property.

It’s the same thing with intellectual property, which is nothing but a redistribution of rights. It is a redistribution of property rights from the original owner of a thing, to someone who applied at a state agency for some kind of monopoly certificate that gives them the right to go to government courts to ask the court to point their guns at the original owner and tell them “you have to share your property with this guy, or you can’t use it in this way without this guy’s permission.” It is a way of redistributing property rights. The idea that you can just add IP rights to the set of property rights in scarce resources is a pernicious one that leads to redistribution of control that owners have over their property, to other people.

Here is what’s perverse about it. As I’ve already pointed out, the free market is working to let humans overcome scarcity. Yet, you have people who advocate intellectual property rights in the name of the market. What’s going on here? They’re actually imposing an artificial scarcity on things that are non-scarce by their nature.23 The free market is trying to overcome the problem of scarcity. These people are saying, “let’s make something that is already free and not scarce artificially scarce just like real things are.” Why would we want to do this?

Let’s imagine we had the ability to change physical laws so that you could easily duplicate a car just by looking at it. I look at your Rolls Royce and I blink my eyes and I have my own. It didn’t take anything from you. You can still drive your car around. Who would be against that? Well, the auto workers’ union would be against it I guess, but normal people wouldn’t be against this. This would be free wealth — a good thing.

Yet, we already have this idealized situation in the case of knowledge. We have an expanding base of knowledge that we have all benefited from. It is growing all the time with every succeeding generation. The idea of shackling it is crazy. Why would libertarians support the government in imposing restraint on information?

IP as Censorship and Monopoly

There was one free market economist who actually wrote for one of the free market think tanks that many of you have probably read from before. He explicitly says “patents and copyrights slow down the diffusion of new ideas for a reason: to ensure there will be more new ideas to diffuse.”24 We can debate whether he’s right about this means (slowing down the diffusion of ideas by means of state grants of monopoly privilege) achieving this end (ensuring there are more new ideas generated). I think, of course, that he’s wrong — obviously wrong — but he’s admitting that IP advocates want to slow down the spread of ideas. They want to make it more difficult to spread ideas.

There was a recent Salon magazine article about copyright in China. The magazine article’s author sort of innocently stated that “We may have more to gain, economically, from removing impediments to the widespread distribution of knowledge than from attempting to restrict them.”25 Oh really!

It should be no surprise that patent and copyright have such perverse effects. If you realize the history of these statutes, it is no surprise at all. Patents originated in the granting of monopoly privileges by monarchs. The first modern patent statute is called the Statute of Monopolies of 1623 in England. A patent was given to Sir Francis Drake, a notorious pirate, or privateer as he was euphemistically called, in the late 1500s, which authorized him to go around looting Spanish ships. The origin of patents is in privilege, monopoly, and real piracy. So all these proponents of intellectual property who point their fingers at today’s “pirates” and are against piracy, well, there is a link between piracy and intellectual property: they go hand in hand.26

Copyright’s origin is literally in censorship. Before the printing press, the state and the church found it pretty easy to control the distribution of thought. There were certain scribes who would copy books by hand. So the state and church could stop people from copying what they didn’t want copied. The printing press started to upset matters and so the state established an elaborate system of monopolies and controls over the use of printing presses. This led to the Statute of Anne in 1710 in England, is the first modern copyright statute. Actually, part of the reason that some authors in the French Revolution, and even in England, were in favor of modern copyright laws was they wanted the control back. The government was controlling whether their own works could be reproduced. It wasn’t a desire to get this monopoly from the state to go around suing people to stop them from reading their work. It was a desire just to have the ability to have it reproduced and copied.27 So the entire history of patent and copyright lies in statism. It lies in piracy — real piracy — pirates that kill people and break things, not guys that have a Jolly Roger banner on their website.

Let me give an example of a mousetrap. Let’s say some guy makes a mousetrap. He gets the idea to improve the standard mousetrap by coating it with Teflon. He figures these rat guts are sticky; they keep sticking to my mousetrap. I’ll coat it with Teflon and this will make a better mousetrap. So maybe he sells some and when he sells his mousetrap a lot of people learn about it. The realize, “Hey, it’s possible to make a mousetrap out of Teflon. It works even better.”

Let’s say I have some Teflon and a mousetrap. I improve my own mousetrap by adding Teflon to it. Now, the first guy has a patent on his Teflon-coated mousetrap. He can actually get a court order, an injunction, that tells me I cannot make this mousetrap even in the privacy of my own home or I will go to jail. This is really the force of government. So this is just an example of how patent rights literally rob people of their property rights. (Note: the patentee can do this to me even if I independently came up with the idea of a Teflon-coated mousetrap; even if I came up with it first.)28

The IP Mistake

Why did this happen? How did my property get transferred to this patentee? Ultimately, causally, it was transferred because of a mistake, a mistake in the law, a mistake in people’s thinking, a mistake in believing that ideas can be owned. Ideas cannot be owned. Ideas guide action. Means of action are scarce. Property rights are recognized in means because they’re scarce. Ideas are not scarce things. They are infinitely reproducible. The growing body of knowledge is a boon to mankind.

We need to cast off the mistakes of the past. The young libertarians — you get this. You’re immersed in the internet, digital information, easy access to online books and online information, billions of pages of information available at your fingertips, yeasty productivity, copying, emulating, file-sharing, social networking and borrowing. The movie The Social Network depicts Mark Zuckerberg, the creator of Facebook, as being accused of stealing the Winklevoss twins’ idea. He was rightly outraged at the suggestion. He says, “Does a guy who makes a really good chair owe money to anyone who ever made a chair”?29

He’s right. The very idea is ridiculous. Copying information and ideas is not stealing. Learning is not stealing. Using information is not trespass. I urge you young libertarians to stay on the vanguard of intellectual freedom. Fight the shackles of patent and copyright and keep on learning.

Thank you.

~*~

Stephan Kinsella is an attorney and libertarian writer in Houston, Senior Fellow of the Ludwig von Mises Institute, the founder and editor ofLibertarian Papers, and founder and Director of the Center for the Study of Innovative Freedom (C4SIF). His most recent book is Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe (co-editor, with Jörg Guido Hülsmann; Mises Institute, 2009).

♡ 2011 Stephan Kinsella. Copying is an act of love. Please copy and share.

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Endnotes

  1. This paper is based on my speech of the same title delivered Nov. 6, 2010, at the 2010 Students for Liberty Texas Regional Conference, University of Texas, Austin; audio and video available at www.stephankinsella.com/media/. A previous version was published under the same title in Economic Notes No. 113 (Libertarian Alliance, 2011).All of my articles cited herein may be found at www.stephankinsella.com/publications/. For more extensive treatment of some of the ideas dealt with in this article, see my monograph Against Intellectual Property(Mises 2008), and my articles “The Case Against IP: A Concise Guide,” Mises Daily(Sep. 4, 2009), “Intellectual Property and Libertarianism,” Mises Daily (Nov. 17, 2009), and “What Libertarianism Is,” Mises Daily (August 21, 2009). []
  2. For further discussion of the structure of human action and its relationship to IP, see note 13 and accompanying text, et pass., of my article “Ideas are Free: The Case Against Intellectual Property,” Mises Daily (Nov. 23, 2010). []
  3. For further discussion of the nature of human action, see n.4 and accompanying text of my “Ideas are Free”; also Stephan Kinsella & Patrick Tinsley, “Causation and Aggression,” The Quarterly Journal of Austrian Economics 7 no. 4 (Winter 2004): 97–112. []
  4. Non-scarce things are classified by Austrians as “general conditions” of action, as opposed to scarce means or goods. See Ludwig von Mises, Human Action(Mises Institute, 4th ed., 1996), ch. 4, sec. 1, and Murray N. Rothbard, Man, Economy and State (Mises Institute 2004), ch. 1, sec. 2, both available at mises.org. []
  5. See Hans-Hermann Hoppe, “Praxeology and Economic Science,” in Economic Science and the Austrian Method (Mises Institute, 1995), text following n. 18 (“All of these categories—values, ends, means, choice, preference, cost, profit and loss, as well as time and causality—are implied in the axiom of action.”); idem, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (Mises Institute 2010 [1989]), p. 141; and idem, “In Defense of Extreme Rationalism: Thoughts on Donald McCloskey’s The Rhetoric of Economics,” Review of Austrian Economics 3, no. 1 (1989), p. 200; both available athanshoppe.com/publications. []
  6. See Mises, Human Action, ch. 4, sec. 4; Rothbard,  Man, Economy and State, ch. 4, sec. 5.C. []
  7. For related commentary, see my post “Knowledge is Power,” C4SIF Blog (Dec. 28, 2010). []
  8. See Rothbard, Man, Economy and State, ch. 1, sec. 8; Kinsella, “Ideas are Free”; and Jeffrey A. Tucker & Stephan Kinsella , “Goods, Scarce and Nonscarce,”Mises Daily (Aug. 25, 2010). []
  9. See Tucker & Kinsella, “Goods, Scarce and Nonscarce,” text at notes 4­–5. []
  10. See the concluding three paragraphs of my “The Death Throes of Pro-IP Libertarianism,” Mises Daily (July 28, 2010). []
  11. See notes 23­–24 and accompanying text of my “Intellectual Property and Libertarianism.” []
  12. See Hans-Hermann Hoppe, “Rothbardian Ethics,” LewRockwell.com (May 20, 2002) (“The existence of Friday the gorilla poses for Crusoe merely a technical problem, not a moral one. Crusoe has no other choice but to learn how to successfully manage and control the movements of the gorilla just as he must learn to manage and control the inanimate objects of his environment.”); idem, Democracy: The God That Failed (Transaction, 2001), pp. 201–202. []
  13. See note 4 to my “Intellectual Property and Libertarianism.” []
  14. For elaboration, see my “What Libertarianism Is.” []
  15. See Ludwig von Mises, Economic Calculation in the Socialist Commonwealth (1920), idem, Human Action, ch. 16, secs. 1–3, and other references in Kinsella, “Knowledge vs. Calculation,” Mises Economics Blog (July 11, 2006). []
  16. See Stephan Kinsella, “How much richer would be in a free society? L. Neil Smith’s great speech,” StephanKinsella.com (Nov. 7, 2009). []
  17. See Jeffrey Tucker’s talk “The Morality of Capitalism,” FEE Freedom University (2010). []
  18. See “Intellectual Property and Libertarianism,” text at n. 26; and Kinsella, “Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and ‘Rearranging,’” Mises Economics Blog (Sep. 29, 2010). []
  19. See Murray N. Rothbard, “Toward a Reconstruction of Utility and Welfare Economics,” Mises Daily (July 8, 2006). []
  20. See Kinsella, “A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability,” Journal of Libertarian Studies 17, no. 2 (Spring 2003): 11-37. []
  21. See Kinsella, “Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors,” Mises Economics Blog (Jan. 3, 2008). []
  22. See Kinsella, “Owning Thoughts and Labor,” Mises Economics Blog (Dec. 11, 2006). []
  23. Kinsella, “IP and Artificial Scarcity,” Mises Economics Blog (Dec. 3, 2009). []
  24. See Kinsella, “Shughart’s Defense of IP,” Mises Economics Blog (Jan. 29, 2010). []
  25. Andrew Leonard, “The key to economic growth: Stealing,” Salon (Aug. 18, 2010). []
  26. See Kinsella, ““How Intellectual Property Hampers Capitalism,” Mises Institute Supporters’ Summit 2010 (Oct. 8-9 2010, Auburn Alabama). []
  27. See Michele Boldrin & David K. Levine, Against Intellectual Monopoly (Cambridge 2008), at ch. 2, text at n. 27 et pass. []
  28. See Kinsella, “Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense,” Mises Economics Blog (Nov. 21, 2009). []
  29. See Jeffrey A. Tucker, “A Movie That Gets It Right,” Mises Daily (Oct. 26, 2010). []

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Laugh at the State, Mock the Regime

I love this. Mock them, laugh, cajole, make fun of their lies and deceptions, but, especially their lack of rational thinking. The warmongers and statists have no ability to make a rational argument for the types of things they support so they must scream and accuse to try to throw people off. Don’t let them fool you. Think for yourself. Then Mock them! (E)

November 11, 2010

Posted by Stephan Kinsella on November 11, 2010 11:31 AM

Kathryn Muratore, James Ostrowski, and I were recently discussing over email one proposal some people are bandying about as a response to the TSA naked scanner abomination (see Kathryn’s blog Stop TSA Scanners). The proposal is to serve the TSA by filing some kind of “Show Cause Order” in federal court, to demand the TSA “give a reason for them to continue to do these searches which are clearly unconstitutional”—thus you bury the TSA in paperwork and back them into a corner using this “Show Causes” maneuver. Now this sounds a little desperate and crankish to me, sort of like all these “common law court” nuisance liens the gold-fringe-on-the-“admiralty”-flag crowd like to file (which may be heroic, though futile, since the states just criminalize it).

But I don’t know; I’m not a litigator. Ostrowski’s view was: “I’m a big believer in direct action and not litigation. The best way to stop this is through a boycott and/or street theatermake fun of this odious practice.”

He has a good point. Earlier this year I was on a panel (discussed here) with Hoppe and DiLorenzo. In response to a question about the prospects for liberty, I noted the importance of economic literacy, in part to deflate the mistaken belief on the part of decent people that the state is necessary and legitimate. Without the tacit support of the state’s legitimacy, it could not exist. And this is why it is important to laugh at the state.  Hoppe agreed, saying he has actually considered featuring a libertarian comedian at an upcoming  event, and DiLorenzo explained that one reason he often mocks the state and its media cheerleaders is for this very purpose—he gave the example of ridiculing Rachel Maddow in a recent LRC post where he referred to her getting her “panties in a knot.” We need to show these people as buffoons and clowns and to make people take them less seriously. (See also the Mises Daily article Laughing at the Regime.)

So: laugh at them, mock them, ridicule them, jeer them, scoff. Do not take them seriously.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~


Jesus and Soldiers

The following is written up at The Libertarian Standard. The whole evangelical christian warmongering thing is of great concern to me. Most people in that genre consider Oliver North a hero even though the evidence of his crimes makes him a traitor to America and probably a major player in the drug distribution system in the late 70’s through the early 80’s. (E)

The Libertarian Standard

by Stephan Kinsella on November 12, 2010 @ 10:34 am

Last night, I attended “Heal Our Heroes: Ministering to the Military in Our Midst,” an event here in Houston featuring keynote speaker Colonel Oliver North. (I was invited by a friend who had a table.) It was a fundraising dinner for Military Ministry, which provides various spiritual counseling and resources to soldiers. There were parents and a singer who had lost loved ones or suffered post-traumatic stress disorder (PTSD) etc. from the Iraq or Afghanistan war, various testimonials, etc. It was very Protestant in that Jesus was mentioned repeatedly and they explicitly pushed for us to give money at the end (Catholics are a bit more discreet when they ask for money–they just pass the basket).

I can understand wanting to help those who are suffering from the effects of war–even the soldiers. But after showcasing all the soldiers’ whose lives have been ruined by the military and by war, you would think there might be a word about peace or stopping the fighting that causes such devastation. But no, not a word. I suppose this is understandable: their mission was to raise money, so they focused on that.

But two other things really shocked me, both regarding the degree to which American Protestant Christians have intermingled their faith with patriotism and love of the state. For one, an award was given out, which was a miniature replica of a statue of Jesus hugging a soldier. Now I have no doubt the idea of a loving, compassionate savior giving succor to someone damaged by war is compatible with Christianity, but this seemed to go beyond that. And this impression was reinforced by the words of a young lady who spoke on behalf of MM. She said that in this world there are only two classes of people who have directly given their lives for you: Jesus, who gave his life to save your soul; and the soldier, who gives his life to save your freedom. Jesus comforting and forgiving the soldier–fine. Comparing soldiers to Jesus? Sacrilege. I don’t think Jesus is supposed to have had guilt or PTSD over what He did. Soldiers do, for a reason: War is hell. Jesus didn’t kill and murder people. Soldiers do.

Christians in America, especially Protestants and the “right-wing” types, it seems to me, have their priorities a bit out of place. Statolatry crowds out true faith and religion.

Heal our Heroes-1

Heal our Heroes-2

Stephan is an attorney and libertarian writer in Houston, Senior Fellow of the Ludwig von Mises Institute, and the founder and editor of Libertarian Papers. His most recent book is Property, Freedom, and Society: Essays in Honor of Hans-Hermann Hoppe (co-editor, with Jörg Guido Hülsmann; Mises Institute, 2009).
 

Stephan Kinsella

Fantastic Libertarian Rapper: Neema V

WARNING! THIS VIDEO CONTAINS SOME GRAPHIC LANGUAGE

by Stephan Kinsella on September 22, 2009

in Culture,LewRockwell.com Blog Posts

As noted on LewRockwell.com, there’s a wonderful Rap video by a young libertarian rapper, Neema V (from Houston, so he’s my homie). See the video below, and a great short interview by him on FreeTalkLive, in which Neema V goes on about the influence Ron Paul, Lew Rockwell, and Butler Shaffer had on him (Shaffer’s book Boundaries of Order is featured in the video). This young man is intelligent, thoughtful, pleasant, interesting, and talented (amazing video and song for a home-made solo production). Go Neema V! FYNV!!


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