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KOL253 | Berkeley Law Federalist Society: A Libertarian’s Case Against Intellectual Property


[Kinsella on Liberty Podcast, Episode 253.


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

This is the audio I recorded on my iPhone; video below; line-mic’d audio here.

My speaking notes pasted below.



A Libertarian’s Case Against Intellectual Property
Stephan Kinsella
Kinsella Law Practice, Libertarian Papers, C4SIF.org
UC-Berkeley Law School Federalist Society
Oct. 11, 2018

General background: A Selection of my Best Articles and Speeches on IP

Purpose of law and property

  • The question is not “is IP a good idea?” or “what kind of IP law should we have?”
  • Garden of Eden
    • Scarcity, conflict [Hoppe, TSC, chs. 1-2; Of Private, Common, and Public Property and the Rationale for Total Privatization”]
    • All rights are property rights [Rothard, Human Rights as Property Rights]
    • Law is a set of rules enforcing property rights
    • To permit conflict-free use of resources
    • Allocates ownership of a contested resource in the case of a dispute
    • Basic rules:
      • Self-ownership, for bodies
      • for previously unowned, scarce resources:
        • original appropriation (homesteading)
        • contractual transfer
        • Transfer for purposes of rectification (restitution)
      • These give rise to a body of rules for property law, torts, contract, fraud, and criminal law

History of IP

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

Arguments for IP

  • Utilitarian and deontological
  • Problems with utilitarianism
    • In general: Austrianism/subjective value
    • Ethical problems with utilitarianism
    • The empirical evidence itself
      • Burden of proof: the Constitution
      • It was just a “hunch” at first
      • What it has to show: value of innovation and cost of the system
      • What it has shown [“The Overwhelming Empirical Case Against Patent and Copyright”]
        • Fritz Machlup, 1958: “No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society. The best he can do is to state assumptions and make guesses about the extent to which reality corresponds to these assumptions. … If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one.”
        • François Lévêque and Yann Ménière (French economists, 2004): an economic analysis of the cost and benefits of intellectual property “is no more within our reach today than it was in Machlup’s day” [1950s].
        • Boston University Law School Professors (and economists) Michael Meurer and Jim Bessen concluded (2008) that on average, “patents place a drag on innovation” … “the patent system fails on its own terms”
        • economists Michele Boldrin and David Levine: “The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless the latter is identified with the number of patents awarded—which, as evidence shows, has no correlation with measured productivity.
      • Locke and the Labor Theory of Property
      • Mises’s praxeology:
        • Human action is the employment of scarce means (material resources), guided by knowledge, to achieve some future end goal that would not otherwise occur.
        • Use of means to causally interfere
        • successful human action requires access to and control of scarce means, and knowledge about cause and effect.
        • To have conflict-free, cooperative human action, in society, property rights are assigned to the scarce means.
          • Makes no sense to do this for knowledge. Knowledge is non-rivalrous.
        • IP is similar to normal property rights
          • Richard Epstein, Adam Mossoff
          • Irrelevant
          • Humans could be owned too (chattel slavery). What the legal system can do is irrelevant to what it should do




The future of IP

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


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

{ 3 comments… add one }
  • Dennis New October 12, 2018, 9:46 am

    It still scares me that professors (eg. Talha) who’s primary raison d’etre is in this field of property rights and legal theory, have never in their entire careers bothered to do a simple google search on opposing views.

  • Martin Karlsson October 15, 2018, 11:31 am

    I completely agree with Talha that talking about “natural rights” is dishonest, at least in some circumstances. Rights absolutely are social relations/constructs between people and are essentially claims to things. What I don’t understand is how he then can go on from there to dismiss the idea that all rights are property rights. All claims of rights are claims to something that exists in the world, something tangible. Like I have the right to this land or the right to do something with my body or with a particular resource.

  • Dennis New October 17, 2018, 9:13 am

    Since he’s just talking about arbitrary social relations, he can include intangible ideas in those agreements. The universe doesn’t require that our social relationships and contracts be rational and coherent. Basically Kinsella/we are arguing for logical/sane relationships, and he still kinda prefers self-contradicting ever-changing more-flexible ones. We should each be allowed to live our own ways – but we cannot live together.

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