One of my better talks, I believe. I’ve added it to my list here: A Selection of my Best Articles and Speeches on IP.
Transcripts (unedited, as of yet) for the main talk and the following panel discussion, are below:
On Life Without Patents and Copyright or, But Who Would Pick the Cotton?
[Transcript prepared by Lisa Eldridge]
STEPHAN KINSELLA: Thank you, Hans. It’s a pleasure to be here once again at the PFS. I think this is my seventh or sixth for sure. Hans is right. I was at the first meeting, and it was great, and it’s gotten better every year since. So it’s good to be at the PFS, or as I’m starting to think of it, the land of successive hangovers. I talked to Hans the other day. He told me he doesn’t do a lot of interviews. He gets requested to do podcasts because he doesn’t like to repeat himself, so I appreciate his asking me to speak on intellectual property for the first time ever. It’s all right. When I’m not known as Hoppe’s amanuensis, I’m known as Mr. IP, which is – it’s fine. I’ve accepted that instead of being the handsome guy from Louisiana or the guy who’s written 17 articles with Walter Block.
So I am an IP attorney. I often get the question how can you be an IP attorney and hate IP? It’s a strange question I think but hasn’t harmed me too much. Usually I’ll give a talk on IP, and people come up and they say oh, I agree with you. IP is horrible. Would you please write a patent for me? So it hasn’t harmed my career for some strange reason. I really don’t understand it. It’s almost like hiring an oncologist to help you with your cancer. That makes no sense, right? My topic is, “Life Without Patent or Copyright,” and I have a subtitle: “Or, But Who Would Pick the Cotton?” Sometimes people ask how would people make money in an IP-free world, which is the question that’s really behind this one. The problem is questions about IP are often confused, and so when I talk to people and when I think about these issues, I try to separate the issues and look at it differently.
There are at least three separate issues to consider. The first one is a normative question. Should we have patent and copyright law? It’s a libertarian question. The second question is a practical one. It’s really life with IP instead of life without IP. It’s given that we do have an IP system, patent and copyright. IP means intellectual property by the way. Patent and copyright are two of the biggest types of IP. Trademark, trade secrets, and other things are other types, which I probably won’t mention much today. Okay, so the second question is given that we have IP, how should people react to it and what should we do about it? And then the third, which is more or less the main topic today, is what would an IP-free world look like, which is really a prediction. So that’s a question about what would the world look like if we didn’t have IP?
These are all separate questions, and they’re often intermingled, but let me start with the first briefly. Is anyone here not familiar with why IP is horrible, or can I just skip that? See my 100 other lectures on this on my website. But in short, the problem with IP is that it is a violation of property rights.
The libertarian view is that there are property rights assigned to scarce resources over which there could be conflicts, scarce resources in the world that we need to employ to have successful action, and these resources’ nature is such that there could be conflict. And to avoid having conflict and to be able to use these resources productively and peacefully, we establish property rules.
So there’s an owner of a resource, and everyone knows the boundaries or the borders of this resource, and they can live in cooperation with each other. And the libertarian rule is that the owner of the resource is the first user of the resource or someone he has given it to by contract or someone to whom he owes compensation because he’s committed a torte against them. Those are basically the three rules of libertarian property rights, and IP basically says someone who has not contractually acquired a resource, who has not originally appropriated the resource, who is not owed the resource because of a torte committed against him, that person has a veto right over how other people use their legitimately owned resources.
That is what IP is. If I have a copyright, I can use state force to prevent you from publishing a book using your own paper and ink. If I have a patent, I can use the state force to prevent you from making a mousetrap using your own wood and steel, which is in law what we call a negative servitude. That means I have a partial property right in your rights even though I didn’t acquire that right contractually. So all we have is the state expropriating property, transferring it from one person to another, taking my property, and leaving me with some ownership but transferring a negative servitude to other people who have nothing to do with the resource. This is why IP is theft and wrong. That’s the nutshell case against IP. That’s the principle propertarian case against IP.
The other case is a negative case, and that is the main argument given for IP now is not the natural rights argument because it’s incoherent. The main argument is that – is a utilitarian argument, that we need IP to stimulate innovation or to have more innovation than we would have otherwise.
Without IP we wouldn’t have enough books written, enough movies produced, enough pharmaceuticals produced, etc., and therefore the state needs to step in and give temporary monopolies in the form of copyright and patent in the hopes of optimizing the production of innovation in society. That is the simple argument. It’s never stated that plainly because it’s so stupid, but – and in fact there’s no evidence whatsoever for this. All the studies that empiricists do—empirical economists do—indicates otherwise, indicates that the patent system reduces innovation, imposes billions of dollars of cost on the economy annually. The copyright system censors free speech, reduces the flow of knowledge. If you were a real sincere utilitarian, you would actually be opposed to IP because the evidence is against it. So those are the two basic arguments against IP.
Now, the second question and the third, I want to make a point. People say, but how would I make money in an IP-free world So I want to make a point that we have to keep in mind that questions are fine, but questions are not arguments, so we have to keep that in mind. If you ask a question that’s fine, but it’s not necessarily an argument. Quite often, questions are not sincere, or they’re loaded, or they’re question begging, or they’re just rhetorical. And the reason my subtitle is, “But Who Will Pick the Cotton,” is suppose I present the libertarian case against slavery, and suppose we have slavery and I’m saying we should abolish slavery. And someone says, but who would pick the cotton? That is not a good argument against my case that slavery is immoral and should be abolished, and it’s probably not a sincere question either. I mean the real answer would be I don’t know who would pick the cotton, or maybe someone would pick the cotton, and slavery has to be abolished.
Okay, so we have to keep that in mind. Other types of questions are like why do you support intellectual communism? That’s kind of a loaded question, or, but you’re an IP lawyer. It’s as if Stephan Kinsella, one person living in Texas, happens to have the power of the Beyonder or the Molecule Man. I can change the structure of moral reality by my choice of career. It’s bizarre. It’s possible that there’s a right and wrong to an issue despite my personal choice of career.
So these kinds of questions – another would be like we have communism. We have one supplier of toothpaste and cars, and they’re all crappy, so one says, well, I don’t want to abolish communism. I’m not sure how many cars there would be or how many car brands there would be. Who would make the toothpaste? How many brands of toothpaste would there be? And unless you can tell me in a free society how many brands of toothpaste there would be, we’re going to keep communism. I might not know how many brands of toothpaste there are going to be. I could guess, but the answer is let’s free things up and see.
So when I get the question about how would movies be produced in a free society, how would I get paid for this in a free society, we might have some ideas and I’m going to go into those. But if I don’t have an answer it just means I can’t predict what a liberated society would look like. It doesn’t mean that we shouldn’t liberate society and restrict it – free it from these patent and copyright restrictions.
Now I also want to make another point. We can’t pretend that abolishing IP would have no effect. The only reason we oppose – as libertarians we oppose some laws is because laws do have an effect. If a law didn’t have an effect, we wouldn’t mind it. If the tax law was totally ignored, I wouldn’t mind. If the drug war was just a hortation from the state but they didn’t put anyone in prison, we wouldn’t be railing against the drug war. It wouldn’t really be a drug war at all.
So the only reason we oppose laws is because they do have an effect, because they are enforced, which means that if you get rid of these laws, society will change because it’s changed by the imposition of a law in the first place. So we can’t deny that getting rid of something, some law, would not have any effect. I don’t deny that. So it is possible that there’s an overproduction of some types of goods now because of patent and copyright and there’s an underproduction of others. And if these laws are lifted, the overproduced goods and services will go down, and the underproduced ones will go up. This doesn’t mean that patent and copyright should not be abolished.
So I will – I entertain questions about what would an IP-free world would look like as long as the question is not formed effectively as, all right, I want you to tell me what an IP-free world is going to look like. And unless you can tell exactly to my satisfaction, I’m going to still support IP. I don’t accept that.
So let’s talk about – before a life without IP, let’s talk about life in a world with IP, the world we have now. How should be people live in this world that we live in today? Now, this is mainly a practical and an ethical question. So first I would say if you recognize that patent and copyright are completely illegitimate and monstrous interventions into the free market and violations of property rights, there is nothing immoral whatsoever about infringing patent and copyright if you can get away with it. I’m not saying it’s prudential in every case. I think people should be careful, but there’s nothing immoral whatsoever about copying information, competing with people, using information that’s publicly available, emulating it, etc. So it is – in my opinion, there’s nothing un-libertarian or immoral about it. People that pirate movies—nothing wrong with it whatsoever, maybe a little risky. I don’t do it. I don’t think I could play dumb American if I got caught.
And we also have to recognize that in today’s world in many areas, fields of business and technology and life it’s difficult to avoid using IP or being faced with threats of IP because it does exist and it is enforced. So, for example, authors often have to assign their copyrights to publishers to get published because publishers insist on it.
Companies necessarily need to obtain patents for defense – at least for defensive purposes or to satisfy their investors. We all have to be careful to avoid copyright piracy if it’s conspicuous because you might go to prison. And companies are always hiring patent lawyers like me to advise them and to look at their portfolios and look at competitors and their patents to make sure they’re not infringing patents.
Now, I would say in my opinion, I’m not an ethicist, but I believe – personally believe it’s immoral. It’s immoral to use IP offensively as a person. I don’t do it. I refuse to participate in offensive patent lawsuits for example. I think it’s wrong to be a copyright troll. I think it’s wrong to sue someone for copyright infringement. People are going to do it, but I don’t think we should even given that the system exists. However, I think there’s nothing wrong with using IP defensively. If one of my clients were sued for patent infringement, I would have no qualms about using one of our patents or one of my clients’ patents to counter-sue the person attacking them. To me this is a defensive use of force, and it’s permissible.
Another thing people do now in the face of IP is a lot of firms in certain industries collaborate, and they pool their patents together to have a defensive patent pool. One company might have 10 patents. Another might have 15. A bunch of them get together; they have a larger pool of patents to draw on to defend themselves if one of the members of this pool is sued by a patent troll of an outside – another competitor for example, someone outside the pool. And people in the pool agree not to sue each other, so you have all this money being wasted acquiring patents and techniques, things being done just to be able to operate freely in the market because of the patent system. It’s a horrible waste of funds, but these are things some people do.
I actually have a booklet some of you might want to look up. It’s on – a liberty.me booklet. I wrote it about two years ago. It’s called Do Business Without Intellectual Property, and it summarizes a lot of what I’m talking about today. And it discusses things companies can do other than this in today’s society if they want to try to lower their cost and not be liable for copyright or patent infringement and not use the patent system. So, for example, some companies can and maybe should in some cases use trade secrets instead of patents, keep the information secret. It doesn’t work in every case, but in some cases that’s a good strategy. Some companies are even pledging not to use patents offensively, like Twitter has done that and actually signed an agreement with all their employees so that the employee can block the company from using their patents offensively. They can still be used defensively but not offensively.
Tesla, the electric car company, has actually opened up all of its patent technology to its own competitors to build the market up so that they can compete in a real developing electric car market. A lot of authors and independent songwriters and musicians and authors use creative commons to release their work for free into the commons to liberate it from the shackles of the copyright system. A lot of the software industry uses open-source software, which is similar to the creative commons, that – like they’ll use the GNU—G-N-U—general public license to liberate software from their shackles of copyright. So people are actually trying to get out of the system that is in place.
I would also say that in today’s world, authors should be careful not to assign the works to their books to publishers if they can avoid it. Self-publish in some cases because otherwise when you die your work might become an orphan work and disappear from the face of the Earth, or in your will, make sure that in your will you grant your – you open up your copyrighted works to the world so that it doesn’t disappear so that family members or descendents down the line don’t keep it from being published by refusing to grant permission.
So these – this is consequences of living in a world with IP. Now, let’s talk about life without patent and copyright. So let’s say we somehow achieved a miracle, and we were able to abolish patent and copyright despite the lobbying efforts of the pharmaceutical industry and Hollywood and the music industry in the United States, which is largely responsible for this morass that we have in the entire world. So the question really is what would the world look like, what are the likely effects of abolishing patent and copyright? So the first thing we can do is we can look at cases in today’s world where there is no copyright – where there’s nothing like copyright and patent or cases where it’s being widely evaded.
So, for example, the fashion industry exists now, and it’s extremely profitable and extremely creative and lucrative, and there’s many successful companies even though their dress designs and things like this can be knocked off right away. Okay, so they manage to make a profit because they just keep coming up with new designs every fall, and then the old designs get made at lower prices by knockoffs and by cheaper boutiques. This actually happens. The fashion industry actually works without IP except because of the – there’s lobbying by the fashion industry, by the way, to add a type of IP or to extend copyright to fashion designs.
Let’s hope that doesn’t happen But sometimes fashion designers, desperate to have some kind of protection over their designs, they will use trademark law, which is another type of IP. And they’ll take their logo, which is protected by trademark, and they’ll put their little logo all over their purses. You guys ever seen – you know Chanel and Louis Vuitton. This is the reason why their logos are slapped all over their apparel so that they have some trademark protection so they can use some type of IP to stop people from knocking those things off. It would be like buying a Mercedes and seeing the little symbol all over the car as part of the design. It’s odd. So this is a way that IP has distorted culture.
Culinary recipes—chefs are extremely creative. Restaurants are coming up with great recipes all the time, and there’s nothing stopping one restaurant from copying another and they do this sometimes. But quite often they come up with their own recipes because they want to distinguish themselves. So lacking IP in the restaurant industry doesn’t prevent great restaurants from existing, so same thing with jokes in the comic industry. Comics can knock each other off, and they have their own policing system for this. When someone is caught using a joke someone else wrote, the other comedians shun them. There’s no IP law in that, but there’s a private sort of shunning mechanism, okay.
Same thing with perfume, by the way. Perfume is not protected by IP, and quite often there’s a knockoff of Chanel No. 5 in the drugstore for one-tenth the price or even less, and sometimes some people buy that. Some people buy the real thing. If you want to give your girlfriend a present for Valentine’s Day you’re probably going to buy the real thing.
The software industry operates, as I said, largely without copyright because of the use of open-source licensing, and it’s very innovative and creative even without that. And books and music and movies are protected by copyright, but because of the ability of people to torrent and copy, engage in piracy, they are still profitable even though the copyright system is effectively breaking down for those types of works. And yet, authors and musicians and the movie studios are still making money selling books, selling movies, etc.
So second, we can say this, the likely effects of abolishing patent and copyright. Well, we can say this. The bad effects that we know happen now would disappear. The censorship that copyright imposes would be gone. There would be no jail threatened for people engaged in piracy. Kim Dotcom, his house would not have been raided by 59 federal agents and SWAT teams from four different countries with helicopters in his home in New Zealand.
Aaron Swartz, the brilliant young man who helped invent RSS, which is the technology behind podcasting, one of the most important developments of our time and creative commons, another important development and who helped stop SOPA, the Stop Online Piracy Act, which is one of the greatest threats to freedom in recent decades in America – he wouldn’t have committed suicide as he did two years ago because he was facing a long time in prison for copyright piracy.
So that wouldn’t have happened. That’s one effect of the copyright. You wouldn’t have Aaron Swartzs committing suicide. You wouldn’t have people facing prison terms for jailbreaking their own iPhones, which is the law in the United States. You wouldn’t have patent lawsuits from patent trolls or your competitors. You wouldn’t have monopolies on pharmaceuticals. Drugs wouldn’t – AIDS drugs wouldn’t cost $1000 a month in Africa. You wouldn’t have as many cartels and oligopolies, which are caused by the patent system such as in the smartphone industry.
Prices for consumer goods would fall a lot. We’re paying the price for the patent system right now because producers have to pay licensing fees to patent trolls, and they have to pay fees to attorneys like me to obtain patents and to engage in litigation defensively. Billions and billions and billions of dollars every year are spent by these companies because of the patent system. That would be gone, so the cost to producers would be much lower so prices for goods would fall a lot, so all consumers would be better off.
Maybe we wouldn’t have had to wait 50 years for a movie version of Atlas Shrugged. Maybe a good one would have been made. And if a bad one would have been made, someone would just remake it. Maybe we would have had a sequel to Atlas Shrugged by now, which no one would write because they’d get their pants sued off by the greedy and copyright Nazi objectivist state of Ayn Rand. By the way, Catcher in the Rye, the famous novel – a sequel to that was written years ago. And his estate sued the publisher and the author, and the judge banned the book from being published because it was a derivative work under copyright law, so copyright law actually literally results in book banning and censorship and has – and does prevent sequels from being written.
Netflix would have a much larger catalog of movies. There wouldn’t be a million YouTube takedowns a day as is happening now because of the copyright systems Digital Millennium Copyright Act takedown provisions. Literally a million videos are taken down in a day automatically by YouTube because of fear of copyright liability. There wouldn’t be judges ordering the destruction of movies such as happened with the Nosferatu movie because it was a – held to be too close to Dracula. Movies were ordered – the negatives were ordered destroyed by the judge.
There wouldn’t be judges ordering people not to read books that they purchased as happened in Canada. A few years ago, one of the Harry Potter sequels was in the bookstore, and the bookstore accidentally sold it a few days before its release date to some people. And so the publisher freaked out and ran to a judge and got an emergency order, ordering these customers not to read the books until two weeks from now or something, and don’t – if you have read it, don’t discuss it with anyone. That’s what the judge said.
And you wouldn’t have judges banning the publication of sequels like Catcher in the Rye or Atlas Shrugged 2. Now, how would people adapt in such a world? It might be harder to make money selling information. That’s possibly true. But then, on the other hand, it would be easier to use information.
Documentaries right now are often blocked because they have a scene of a sculpture in the background or those – a movie poster on a building that’s in there, or there’s a song playing in the background on someone’s radio, and they can’t publish their documentary. Documentarians would be able to have more freedom to do things like that, and it would be better for the consumer. Prices would fall. There would be no – DRM models just wouldn’t work anymore because people would just go to alternative methods. If you buy a Kindle book, there’s no way you would use Kindle if they have DRM. You would just go to – you’d go to piracy. So for – publishers would have an incentive to open things up and have unrestricted digital information in terms of music, software, things like that.
Now, let’s take some concrete examples. The – and again this is the problem with this question. People pepper you. They demand. They want to know what’s the world going to look like without IP because I’m afraid. I’m afraid of getting rid of government censorship and restriction of competition and the grant of monopolies that protect you from competition. I’m afraid of a world like that. Even though I’m supposed to be a libertarian I’m afraid. So you need to tell me. You need to tell me. They’ll say what about music? What about novels? And so I say, well, I can think of a few models based on what some people have done and based upon just being a creative lawyer or whatever. But then they’re never satisfied. The list of questions is infinite. They’ll say, well, what about poetry? It’s like whatever answer you give them they’re going to go on to the next one.
It’s very similar to talking to your standard American leftist liberal who has a – is in favor of the welfare state to take care of the poor, and libertarians often fall back on this sort of soothing don’t worry; it’s going to be fine in a free society. We’re going to have charity, and there will be – there will be plenty of charity. Don’t worry. And then the liberal says could you guarantee that? Because if you can’t, we need to have a welfare system. So – and of course you can’t guarantee it. Are you telling me there will never be one single person who can’t get charity? No, I can’t guarantee that. All right, we’re keeping the welfare system.
We need – we have to provide healthcare for people too because you can’t guarantee that there would be charity hospitals out there. We need to have public schooling because I can’t guarantee that everyone is going to be able to find a nice charitable, free high school for poor people or something like that. So it’s the same thing here. They want to demand there is never going to be a case where the way someone is doing something right now won’t be able to continue. They want a guarantee that J.K. Rowling, the Harry Potter author, the richest woman in England I believe because of the success of the movies and her books, they want to guarantee that it would be exactly the same. I don’t know if it’s going to be exactly the same.
Musicians will still make money. Music will still be produced. We know that. Maybe they would make less money off of their albums, and that would be what they use to advertise them to advertise their music to get popular so that they can sell tickets when they go on tour, which is what’s happening right now actually. They’re not making as much money on MP3 sales because people are using Spotify, and they’re pirating it, so bands become popular. And they can sell out large stadiums and make hundreds of millions of dollars a year touring or a lot of money touring.
You know, movies used to be made before the modern era, and they were financed by the prospect of selling tickets to show movies in theaters. Now, there is piracy right now. There’s – a lot of the young kids, they want movies on their computers, and they don’t pay for them. Yet still moves are making billions of dollars by – just from box office sales alone. Nowadays, they have secondary and tertiary streams of income. They started showing moves on television. They would charge the rights for that after a couple of years.
And then – so on airplanes and then in hotel rooms and then putting them on cable. These things didn’t exist in the 1950s, and yet there were still blockbuster movies. So even if those secondary and tertiary streams of income disappear altogether, which they wouldn’t, there’s no reason to believe that movies couldn’t be made still just by selling tickets to show them in the theaters. And then piracy is going to happen soon after, and the money is already made, so there’s no reason to believe that movies couldn’t be made.
Crowd-sourcing is being resorted to a lot now: Go Fund Me, Indiegogo, etc. These types of things could be used. I mean throwing some examples out there. I want to write a novel. I’m a popular author, novelist. I want to write another novel, but I’m not going to invest the time to do it unless there’s an audience out there. If my fans will each pledge to pay me $10 and 100,000 fans sign up, I’ve got a lot of money right there in the bank. You could do it that way even if piracy would happen soon after.
Let’s take the case of J.K. Rowling again. J.K. Rowling didn’t write Harry Potter expecting to be a billionaire. She wrote it because she wanted to write. She might have hoped to make some money, but she didn’t know how popular it would become. So let’s suppose she had written the first Harry Potter book, but let’s suppose she sold it on Amazon on the Kindle, so for $0.99. Well, a million copies might have been sold, so suddenly she is a millionaire literally even though there’s piracy going on.
And then piracy starts, and her sales fall away let’s say. Let’s take the worst fears of the copyright advocates. So J.K. Rowling says, well, I’ve got millions of fans out there in the world, and she does an Indiegogo campaign. And she says if I get a million dollars or $10 million pledged from 10 million fans around the world, I’ll release a second novel, which I have ready to go. So she gets $10 million, releases the novel. Piracy starts. Well, she’s made $10 million. Now some guy comes up and he says hey, I’m going to make a movie based upon Harry Potter. It’s a popular novel, and I’m not going to pay her a cent because I don’t need to because there’s no copyright. And another company says, well, I’m going to make a better one, and so he approaches J.K. Rowling and says, look, there’s three companies out there that are producing versions of the first Harry Potter novel right now as a movie.
And they’re not paying you anything. If you will consult with us and you’ll give it your blessing, I bet it will be a better movie, and a lot more of your fans will see the authorized version than the other, and we’ll pay you 10% of the box office sales. Okay, so now she’s got another $50 million. It’s easy to see how, in different areas, you can make money even though there’s no IP. The bottom line really is that the legal issue, the libertarian issue about whether there should be IP law is distinct from the entrepreneurial question about how do I make money in a free world.
It’s really the entrepreneur’s job. I’ve heard the expression and I’ve used it before. Your failed business model is not my problem. Ultimately, it’s up to the entrepreneur in a world of freedom to figure out how to make money, and as Benjamin Tucker, one of the famous anarchist libertarian from over a century ago who was a famous opponent of IP, he said one time if you want your ideas to yourself, keep them to yourself.
If you publish information to the world, if you make knowledge public in some way, you cannot expect other people not to use that information. You have no right for them not to use that information. If you sell a product and the product’s design is apparent, then you are taking the risk that you’re going to have competition, and the reason you do that is to make a profit.
So you have to make a choice: Do I want to sell this product or not? The cost of doing that is I’m telling something to the world. If you want to keep it to yourself, you’re free to do that. But if you sell a product, if it’s successful, it’s going to send a signal. People are going to start copying you, and then you might have to innovate yet again, which is another reason we can expect there to be more innovation. People can’t rest on their laurels as much as they can now. You have a patent that lasts 17 years, so you don’t need to innovate as much. You have a monopoly protecting you from competition. Without the patent system, people would have to keep innovating.
Okay, in the US, maps used to be covered by copyright, but in the Feist decision it was held that maps are just pure data, pure information. And therefore, they’re not subject to copyright protection, and yet we still have maps, don’t we? Although sometimes mapmakers play these little tricks. They’ll put a fake cul-de-sac somewhere that doesn’t exist on the map so that if someone copies it now they’ve committed copyright infringement because there’s something original in the map. In other words, it’s a lie. The map is actually false. It’s a lie, so copyright actually encourages mapmakers to distort the maps and to lie to the world so they can sue people. So maybe we wouldn’t have bad maps without copyright. Sometimes every now and then there’s someone driving down a country road, and they’re like, I want to find that cul-de-sac. It’s like, it doesn’t exist.
Academic and scholarly papers are written now for no money. There’s no reason to think they wouldn’t be produced. They’re written for other reasons, for reputation or to get the word out. Look at Walter Block. He doesn’t get paid for all those journal articles he writes.
So in conclusion, I will say that a life without patent and copyright – it’s unpredictable exactly what it would look like, but we can predict that it would be better. So thank you very much.
Daniels, van Dun, Dürr, Kinsella, Hoppe, Discussion, Q&A (PFS 2015)
[Transcript prepared by Lisa Eldridge]
HANS-HERMANN HOPPE: Somebody approached me with a wish – it was a question, if email addresses would like to be shared. I did not want to do anything without the people’s permission, so there will be a list at the front desk where you can maybe – the name list of all the participants where you can either write your email address in there or not if you prefer not to make your email address known to others. So whoever is interested, please take advantage of the opportunity, and David Durr wanted to make a brief announcement too. Give the microphone.
DAVID DÜRR: Maybe first concerning also the email address, I was asked by some of you whether I could send you these slides of this morning so you could look at it closer with all the writings. So my email address to just give it to you is D-U-E, double R at swisslegal in one word, swisslegal. This is the name of our law group, dot C-H. And then may I add this? Some people ask me whether what I gave in the speech is also somewhere written in an article. So there are not long and thick books of me yet on this matter. I do have two books here. They are not as sophisticated and scientific as the one of Hans. And namely they are not so English. They are German.
One is (indiscernible_00:02:29) which means state opera. Switzerland, you know, the state as a big opera. It’s the state house actually as opera house, and the subtitle is Few Stars, Many Startists. So this is one – I just have one copy of each if you want to look at this, those who read English, or if you want to buy it or order it, so it’s here. The second one is I have a regular column in a newspaper in Switzerland, and these are sort of anarchic – anarchist columns, and the collection of this is in another book. They are always on Fridays in that newspaper, so it’s “Das Wort zum Freitag,” the world to the Friday, not to the Sunday as usual, to the Friday, so this is the second book. Thank you.
Q: Which newspaper is it? Which newspaper?
DAVID DÜRR: It’s called Basler Zeitung. It’s a – people say it’s a right-wing newspaper. They are very open in that they have, through all parties, columnists, but I like the newspaper as such, but I’m very independent. I had one column once when I compared IS or ISIS with US. I said, well, actually it’s about the same thing. US is just bigger, and that gave huge protests from the newspaper itself. And then this gave me an opportunity just to put one on the top because right afterwards these CIA reports came up about torture practices. That was a wonderful example to insist on it anymore.
Q: Okay. My question is for Stephan Kinsella. It’s a question, not an argument. What is the case for private photos and pictures shared over the internet on Facebook and someone else is using it? What is the argumental basis on that from the IP perspective?
STEPHAN KINSELLA: What’s the justification for using someone else’s?
Q: Using, or do they need our permission, without permission? What is the case for…
STEPHAN KINSELLA: Do you mean under current law or under libertarian system?
Q: Under – both.
STEPHAN KINSELLA: Well, under current law, copyrights – photographs are owned by the photographer, and if you put it online you still own the copyright, but you’re giving a license for people to use it for limited purposes like doing it on their browser. If you use it beyond that, unless there’s a creative common license attached to it, you could be sued. And the perverse aspect of copyright – let’s suppose you’re on vacation and you hand your iPhone to a stranger and he takes a picture of your family. He owns the copyright but you don’t know who he is, so you have this great picture, and you may be infringing his copyright when you put it on your Apple TV.
And there’s other perverse aspects of copyright. There are cases where there’s – someone takes a photograph. They have a copyright in the photograph, and it becomes a best-selling print or something like that. And someone else will go to the same location and recreate the photo by taking their own photograph, and they can be sued by the owner of the first copyright for taking a photograph in that location. Under libertarian law, there would be no property rights whatsoever in information at all.
Information is not an ownable thing. Information is the impatterning of an owned thing, a physical material resource. Information is never free-floating. It’s always the impatterning of a substrate: your brain, electromagnetic waves, a CD-ROM, a USB drive, a hard drive on a computer. And those things are already owned by someone according to the principles Professor Hoppe referred to earlier. The owner of the thing—I own this physical object. It’s structured in a certain way, which is the information. I don’t own the information and the phone. I own the phone and the feature – it has certain features.
This phone has a weight. It has an age. It doesn’t mean I own the age of the phone. If I did own the age of the phone, I would own lots of other phones in the world that were made on the same day you see. So the problem with owning an aspect of a thing that you own is it’s a universal that applies to any number of instances in the world. And to own that universal feature of the thing would instantly give you ownership claims over other material resources in the world that other people have claims to. This is the very problem with IP. So if you put a photograph online in a free society, then you have to take the risk that other people might look at it and use it.
HANS-HERMANN HOPPE: On intellectual property rights, a funny movement – you reported about it on your website where people – some alleged Austrians from Vienna, Mrs. What’s-Her-Name from the Hayek Institute, Barbara Kolm. She wants to defend physical and intellectual property rights at the same time. It never occurred to her that that is an absolute impossibility. To give you an example, I whistle a song. You hear the song, and you copy it. You whistle the same melody.
If intellectual property rights exist, of course I would be able to then sue you for having whistled the same song without having received my permission. But that means that I thereby acquire property rights over your own body, that I am then an owner of your vocal chords and whatever it is. And that shows quite clearly that either physical property rights exist or intellectual property rights exist, but both of these things cannot exist simultaneously. So it’s simply a contradiction.
STEPHAN KINSELLA: And an actual illustration of that is the “Happy Birthday” song, which is in litigation right now. This is literally true. Waiters in restaurants in the US sing a different song because they may be sued for singing the one that’s in the movies, which movie studios have to pay licensing fees for. It’s another way IP would help movie studios. Their costs would go down. I want to read something Hans wrote in 19 – Hans said in 1988 on a panel with Rothbard and David Gordon and Leland Yeager. And this is ’88 at the Mises Institute I assume, and an audience member said I have a question for Professor Hoppe.
Does the idea of personal sovereignty extend to knowledge? Am I sovereign over my own thoughts, ideas, and theories? And Hans said in order to have a thought you must have property rights over your body. That doesn’t imply you own your thoughts. The thoughts that can be used by – the thoughts can by used by anybody who is capable of understanding them. So Hans understood this with pure praxeology 30 – almost 30 years ago.
HANS-HERMANN HOPPE: Then I was still young.
Q: (indiscernible_00:10:45) First of all, I wanted to thank you for a remarkably funny talk on homicide, and I wanted to tell Professor Hoppe that it was extremely refreshing to hear what should be done with politicians. Now, having said that, don’t you think that when you say a few people have asked you who is the best person you’ve known, and several – and many people have asked you who is the worst person you’ve known in a way echoes the fact that the best person you may know involves a value judgment. Whereas what we consider evil, echoes of a natural sense of law such that what we libertarians call the Non-Aggression Principle can be naturally recognized by people throughout cultures and times.
ANTHONY DANIELS: No. I don’t think that’s true. I think – I’m afraid I think people are just salaciously interested in evil in a way that they’re not salaciously interested in good. And evil entertains them in a way that good doesn’t, and actually for writers of fiction in particular I think is far easier for them to create villains than it is for them to create good people who are interesting. And those who can produce good characters in fiction who are good are actually relatively rare. What you remember is the bad person, so I think there’s more to it than that.
DAVID DÜRR: May I add something to it? Shortly discussed it at lunch. When I asked whether that was a good idea to make this speech into this law day so that we had an economic day, today the law day. So was that because this has to do with legal criminal cases? No. It’s just to entertain you, you said. And nevertheless, I think that there is an interesting connection between, for instance, these questions you asked. Is anybody bored by this subject? No, certainly not.
This is something interesting, and I could imagine that there are connections, for instance, that if things like that, terrible things like that happen – I say terrible things because they are according to our way of thinking terrible, what are the reactions of bystanders, of people who read it in the newspaper or hear it? And there are reactions, and if these are horrible things, they are intensive reactions. And they are things going up, going up that are realities, interesting realities. I think these are realities also in my discipline the law should look at much more closer because that’s sort of – that’s natural law in a way. Reactions, spontaneous reactions out of certain events may be very sane reactions if bad things happen in different cultural connections, on different times in the long historical run. There may be other reactions that are very dependent on the circumstances of this culture or of that time, but in any event, these are very interesting questions about out of what (indiscernible_00:14:40).
HANS-HERMANN HOPPE: From what stuff is made.
DAVID DÜRR: Is it made? I mean is it – these are natural laws. It’s like gravity, but it’s not gravity, other laws have their structures, things like that. I could imagine that it’s a very interesting, broad field of research that is not used anymore since the national legislators made these books where everything is written. This isn’t false just because the state legislators gave it, not because it’s law. Therefore – also therefore beside other thoughts and other things, I find it a very interesting part also to this subject.
Q: Here’s another question for Dr. (indiscernible_00:15:33), for Dr. Daniels, excuse me. Are you sure there aren’t some more specific lessons to be learned from (indiscernible_00:15:43) as goes back to ethnicity, intelligence, and conscientiousness?
ANTHONY DANIELS: I don’t think there’s anything to be learned for – about ethnicity. It’s true on the whole the majority of murderers that I saw were not of very high intellectual standards. Well, there is, of course, a lot – there’s a hidden homicide, but I actually don’t think there’s much to be learned from what I said except that I – I mean I don’t envisage a world in which I would never be able to repeat these stories. I don’t think there’s a society in which you couldn’t find stories like this. There can be more or fewer of them. But I’m afraid I think we are dealing with a very deep – something deeply entrenched in human beings.
As I said – as I was saying to somebody, the rate of murder in different societies goes up and down, and it varies between societies. It varies within societies. You can examine – try and find what you think are the reasons for it. But ultimately I think – I’m not at all religious, but I think ultimately you’re dealing with original sin. And we’ll not actually get rid of original sin.
Q: Sorry. I’ve got a question for Stephan as well. Thank you for liberating my mind. I walked into this room this morning in support of intellectual property protection to a limited degree. Of course that’s out now. Thank you for liberating my mind thinking that J.K. Rowling is the owner of a slave ship to the parallel. But I do have two questions. The first question is there was some pictures stolen and then distributed on discussion forums around the world of various actresses. I think it will be easier to argue whether the person who stole it can or cannot steal it, but once someone saw it on a forum and then distributed their own, are they completely guilt-free? I mean according to the principles.
And the second question is, and you see this in places where intellectual property rights currently is not really enforced. If I were to make a movie based on a book written by J.K. Rowling without intellectual property and in a world without intellectual property protection, and then use her picture and then use her signature to create the image that she is endorsing this movie, J.K. Rowling is going to be pretty angry about this. Does she – should she be justified in her anger that she is now seemingly endorsing this movie? And then if someone else was to approach her for the same endorsement, wouldn’t that endorsement then be of less value?
STEPHAN KINSELLA: So in the first question, in a case where a photograph is private and not widely known, presumably the owner of the material substrate that the photograph is on—their camera, their computer, a piece of paper in their home—it’s hard to imagine how someone is going to get access to that without committing some act of trespass but against her owned property. If you hack into someone’s computer, you’re using their computer without their permission. If you break into their home and find a photograph on their desk, that’s an act of trespass, so some kind of tort or crime is usually committed or a contract breach in the case of an employee taking photographs from the employer that he shouldn’t do according to the contract. So there’s some kind of tort, some kind of wrong, and it should be a crime or an offense.
But if he publishes the data online, then everyone who views that photograph and copies it is not committing any offense because the information again can’t be owned. Now, if it’s only limited circulation so far, I might say there’s a moral obligation not to participate in making it worse. But once it becomes widely distributed, the cat’s out the bag, same thing with just pure facts. Let’s suppose – I don’t know. Let’s say there’s a famous actor who’s really secretly gay, but he keeps the fact hidden. And someone steals his journal or diary from his home and finds out that he’s gay and publishes it online. So now the whole world knows this actor is gay. Now, are people supposed to forget that fact? It’s just information about the world. They know it now.
If a movie studio refuses to hire him for a certain role now because he’s got this image and he loses money financially, could he sue the movie studio for not hiring him? I don’t think so. He doesn’t have an obligation. That would go to the damages he’s owed by the trespasser who did the original act. And what was the second question?
Q: About taking J.K. Rowling’s picture and (indiscernible_00:21:22).
STEPHAN KINSELLA: Oh yeah. So in such a case, in general taking her – using her photograph and her signature would be permissible because it’s just information unless it’s used to give the impression that she did endorse it, which is a lie. So that could be an act of fraud, but it would be a fraud committed on the customers of the person making the movie. So if you go see the movie assuming J.K. Rowling had endorsed it, then you would have a contract breach or a fraud claim. Maybe you’d get a refund of your ticket or something like that, so – and Rowling, all she has to do is just announce this guy is lying. I didn’t endorse it. So her endorsement – her real endorsement of another movie would still have value because people would be able to tell the difference. It’s just a matter of fact that they could be discovered.
And before – I wanted to – back on the photograph question. This is a picture of – has anybody seen this monkey picture, the Macaque? So this was a case where some photographer’s camera was taken by this monkey, and he took some selfies, and they were good pictures. And now copyright lawyers around the world are confused about the copyright status because this is – they’re puzzling their heads over this, which shows that this is not natural law because the author of a photograph is the copyright holder.
But monkeys don’t have rights, so most people – I think there is no copyright in the photograph. It’s just public domain even though 120 years haven’t passed yet, so it’s a strange case. And this issue comes up also increasingly with technological automated pictures like security cameras or maybe the Google car driving around town or this little device. You throw the camera up and it hovers and takes pictures. Who’s really taking the picture? It’s a computer doing it. So does Google own the copyright to the images in their street view that their car has taken? It’s hard to say, so – which just shows the absurdity of this legislative system and the unnaturalness of it.
ANTHONY DANIELS: Can I just ask you a question? What constitutes a trespass? So supposing someone is legally in my house, is it a trespass if he takes a photograph of something in my house that maybe I wouldn’t want photographed? Would that be a trespass? It would.
STEPHAN KINSELLA: I think so. In libertarian terms, the general view of – trespass would generally be the use of someone’s resources, their property, without their consent. And when you enter someone’s home you could say there’s an implicit set of rules set down by the owner, or there’s a contract. And you’re not permitted to use their house in this way. Just like if you loan someone your car, they’re permitted to drive it around town maybe for the day, but they’re not permitted to paint it another color or do something else with it. So in general, I would view that as an act of trespass, yes.
ANTHONY DANIELS: Would the law (indiscernible_00:24:33)?
STEPHAN KINSELLA: I – taking a photograph in someone’s house? I actually don’t know if the law would regard that as a trespass. Do you have any thoughts on that? No. I don’t know what the law would regard it. I don’t think the law has a strict concept of property and trespass as we would have, so I’m not sure.
HANS-HERMANN HOPPE: We have another lawyer.
STEPHAN KINSELLA: David, do you know?
DAVID DÜRR: Well, I would say but very – just to think aloud, trespassing is trespassing against, as we call it, absolute rights in contrast to relative rights. Relative rights are those between persons, and absolute rights are rights on something, on a picture, on a book, or things like that and also on his phone privacy. And in this sense, it’s an absolute right, so once you touch it or you get in conflict with it, it’s trespassing. I think that’s – it’s not my specialty. I think that, like in Europe or Switzerland, one would look at it.
STEPHAN KINSELLA: Well, and another maybe related thing would be if you confide some information to a priest or a doctor or a lawyer and then that person reveals that information to the world, it’s not a trespass. It’s too late for it to be a trespass. It’s just some kind of contract breach, so there’s an implicit contract between the two or an explicit contract. So there’s a breach of contract, and damages could be owed for the harm that – as a consequence of that breach of contract.
FRANK VAN DUN: If I may, a short comment on this discussion. If you listen to the examples given, most of them are simply trivial and would never come before a court because it’s just things that happen. But when you get a very legalistic mindset such as has developed in the United States, which you have more lawyers than economic bubbles I think – I don’t know what the standard is for many lawyers. But you have these small – very small things get blown up into legal arguments, and they are crossing, unfortunately, the world.
You mentioned the “Happy Birthday” song in US songs. Well, in the Netherlands, for example, and some people from the Netherlands are here. We used to have – the Netherlands and Flemish people too, St. Nicolas, was a child’s friendly saying. He brings presents to the children, and the presents are carried in a big bag by a Moor, so a black-faced person. And of course we have a scandal about this because this is – it’s racism for some reason and colonialism and racism.
So things which are never a subject of litigation suddenly have become translated into legal categories, and they are exploited and now it’s big business for newspapers and for lawyers. So when you have these examples of intellectual property rights, of course, all the photographs and things like that, I think it’s important to assess the scale of the damage people should be able to argue, the degree to which they are damaged. I do not follow you saying here is a line, and whatever goes on that side is not the business of a court of law. And whatever is on the other side is certainly of the business of the – I think some judgment and moderation is in order.
STEPHAN KINSELLA: A couple of more recent trivial examples or not so trivial, but recently you might have heard – what is the song? The Pharrell song that’s similar to the Marvin Gaye song allegedly? Anyone know?
Q: “Blurred Lines.”
STEPHAN KINSELLA: The Robin Thicke song and Pharrell.
Q: “Blurred Lines.”
STEPHAN KINSELLA: “Blurred Lines.” So they lost a copyright suite from the estate of Marvin Gaye recently because the songs have some similar look and feel or something. Cowbells or something are used in it. And the Men at Work song, “Down Under,” has this flute riff in it, which is – like 12 notes of it are similar to this old children’s song, “Kookaburra Sits in the Old Gum Tree.” And they were sued and lost, and I think the flautist or one of the members got so depressed about that I think he committed suicide later. It’s terrible.
Q: I have two questions related to the definition of property. How does it figure into reputation and free speech, in other words, defamation, libel, and so on? Where are the boundaries? And the second question is we – it’s usually assumed that property started with human beings. In other words, property is a human invention, and it’s attacked for the same reason.
But there’s a book published in the 1960s by Robert Ardery, The Territorial Imperative, and the subtitle is The Animal Origins of Property and Nations, very interesting book. And of course animals have territories. They mark the territories, and it even has biological effects, so it seems that animals are wired to know when they are trespassing. For example, a smaller enemy on its own – sorry, a smaller animal on its own territory will defeat a larger animal that’s trespassing on its territory because of hormonal changes and so on. So it’s very interesting, kind of like an animal version of the home field advantage in sports. So I’m curious about any comments related to the continuity or difference between animal primitive property and human property.
HANS-HERMANN HOPPE: I think that should not be over-emphasized, these analogies, because so far nobody came up with the idea that we should try animals for things that they have done. As soon as we start that, then we might want to think a little bit more seriously about it. But I’m waiting for the day when the dog will be put in front of a court of justice or some mosquito will be tried in order to have rights as Murray Rothbard…
ANTHONY DANIELS: But historically, Hans, trials of animals were very frequent in the 13th, 14th, and 15th centuries, and there’s a wonderful book about the trials of animals, and they used to try insects, and there were lawyers appointed. Perhaps they could bring this into America, actually give more – but they – give more employment for lawyers. But pigs and so on were tried for eating the things in the grain silos and things, but…
HANS-HERMANN HOPPE: But obviously to no avail, right?
ANTHONY DANIELS: Well, they were often executed. But sometimes they were acquitted.
Q: Were the lawyers (indiscernible_00:32:27)?
ANTHONY DANIELS: They were foolish.
STEPHAN KINSELLA: Well, of course now animals are executed without due process all the time, and in slaughterhouses they’re just declared criminals legislatively. On the animal issue, I agree with Hans about the – not making too many analogies. However, you can distinguish and property is the legal institution of the right to control a resource. Crusoe alone on his island would have no property rights, but he would still have the need to employ scarce means as part of action.
And animals as well do this because they also live in the physical world, so that is probably the reason animals – a dog can recognize his dog bowl. And he has a certain territoriality over it. But I will say that birds don’t try to copyright their songs. So on the first question about reputation rights, so typically intellectual property is regarded as a patent, which covers inventions, trademark, which is naming or marking, which is actually a type of reputation right, copyright, which is creative works, and trade secrets, which is the right to not reveal secrets.
Defamation law, which covers libel and slander – libel is the written form of defamation. Slander is the oral form of defamation. Defamation is a right to a reputation, and objectivists, for example, believe in that. Rothbard has a great chapter in The Ethics of Liberty called On Knowledge, True and False where he just eviscerates the entire case. And actually I believe defamation law should be regarded as a type of IP because it’s very similar in the rationales given to it, and it’s invalid for the same reasons as Rothbard recognized, although he didn’t think of it as a type of IP. As he pointed out, to have a right to a reputation effectively means you own other people’s brains because you’re controlling what they think about you. So I don’t believe there’s a reputation right. I don’t think people own their reputations whatsoever.
HANS-HERMANN HOPPE: May I add – may I add just if I would own my reputation, I could sue almost the entire world for saying something that I feel hurts my reputation.
ANTHONY DANIELS: Yes. Except the courts would rule you have no reputation to lose. The – coming back to the animal thing, I’m very actually keen that we shouldn’t use analogies from the animal world because in the animal world it’s so extensive that you can find an analogy for absolutely anything really. And if you look at the preface to Dawkins’ first book, The Selfish Gene, there’s a man called Trivers who’s a very clever biologist. But he actually says in that preface that work on the social bees, wasps, and ants demonstrates that there is no difference between the status of male and female. Now, we can argue or you can say what you like about the relations between men and women, but it can’t possibly be based on what the bees and the ants and the wasps do. So I think actually this kind of reasoning is completely false, and once human consciousness and self-reflection comes in, it changes things absolutely, and makes a categorical difference between man and the animals.
STEPHAN KINSELLA: Let me say one more thing on reputation. Because there is defamation law now, I think it makes the public more gullible and more credulous because if someone tells an outrageous story about someone, which is a lie, people are more likely to believe it because they figure, well, if it wasn’t true, then they would have been sued for defamation. So in a world where there were no defamation laws, people would – there would be more – people would take these things with a grain of salt because they know people are free to lie basically.
DAVID DÜRR: I’ll add some. But then you try to say something for half an hour already, but may I add just this one thing to this issue of animals. I’m not that skeptical against these analogies. Of course I would also say that there is a category called difference between bees and human beings, but I think, for instance, human beings and chimpanzees are much closer together than chimpanzees to the bees. And bluntly said, I would say apes have law.
STEPHAN KINSELLA: Have what?
DAVID DÜRR: Law – they have law structures, and there are – you can observe it, look at it. You can make experiments or look how they behave in their group. And there are situations at least just to look at. Maybe that not answers yet to your question, but there are situations where there are conflicts a bit what I showed this morning here. There are conflicts. One goes to the other, takes something away. He shrouds. Others come in. And then there’s something like a court. There is a third one, maybe some with authority in the group, and both sit before this third independent person. And he shouts at them and makes something, and then this conflict is solved, so this happens.
Of course there is a lot to interpret again of it, but I think just when you try to find the natural law somehow out of the nature, then at least it’s very interesting to look at people that are close to us in brain capacity and everything but are not us because once we look at us, we are always biased in a way. But we look at colleagues of us that are quite close but not the same, maybe we are more objective, just to add. I know this won’t be your world.
HANS-HERMANN HOPPE: I disagree.
DAVID DÜRR: And maybe that would be your whole discussion, but that – I would rather tend to such a…
HANS-HERMANN HOPPE: This is just our description of things using human categories to describe entities of which we simply do not know these if categories apply to them. We describe it like this, and I find these descriptions also very instructive, interesting, and so forth. I read these things too, but all of these things say there is an independent party and therefore (indiscernible_00:39:49) and so forth. This is all using our knowledge that we have about humans, and then metaphorically projecting it to animals as well. There is absolutely no way of ever proving, of ever showing that these metaphorical descriptions are actually accurate descriptions. In order to use human categories, you must be able to somehow speak. You must be able to somehow explain yourself and so forth. And none of that can ever be observed, so but we happen to disagree on this.
DAVID DÜRR: That’s fine.
HANS-HERMANN HOPPE: There are a few things if even the two of us do feel.
DAVID DÜRR: We are always – at these panels we are the two anarchists close together, and so it’s fine that we have some scope of discussion.
HANS-HERMANN HOPPE: We beat it out tonight.
Q: Can I comment?
STEPHAN KINSELLA: Can we settle this democratically?
DAVID DÜRR: Out of the conflict comes the solution.
HANS-HERMANN HOPPE: My vote counts for five.
Q: Could I comment on one thing? There is a tendency to look at children as they’re growing up, and even Mises says that children sometimes act as savages. And they come to some conclusions from children, even once a person who’s originally from Cuba. He told me, look, children, when they have something, they immediately say, mine. So he’s saying that that’s their nature or that’s the nature of humans. And I think a lot of conclusions people reach about how humans evolved, they are from observations of children.
HANS-HERMANN HOPPE: That’s – of course. Babies can’t act. They learn how to act. The first things are just motions. We learn how to act. Babies can’t speak. They learn how to speak. And of course we can observe that at some point this transition occurs. Yes, from the study of children we can learn a lot. We can also learn – if you look at Jean Piaget’s studies, for instance, on when children are capable of performing mathematical operations, when they develop some sort of consciousness, when they develop the idea of you did something right. You did something wrong. All of this proceeds in certain stages, which are relatively stable stages, but not all people go through all the stages at the equal speed. But they all go through them in the same order, and some never reach the highest stages of human capabilities that other people can perform.
Q: If I can just make a quick comment on private property and human action before I ask the questions. It seems to me that private property is an unavoidable consequence of any human action, even in the Garden of Eden where there’s no scarcity at all of an infinity of apples. The minute that I stretch my hand to pick an apple, that particular apple is mine by the very fact that I have acted on it. And then if I proceed and peel the apple or cut into slices, that makes it even more mine. If there’s no property, there will be no motivation for human action. There would be no human purpose anyway.
HANS-HERMANN HOPPE: No, there would be – in the Garden of Eden, there would be only good means, things that I recognize as means in order to achieve certain ends. But it only makes sense to talk of property if conflicts arise and we have to define what is mine and yours.
Q: Yes. Once I pick that apple, this particular apple is mine. If you were to take it, there would be conflict.
HANS-HERMANN HOPPE: But in the Garden of Eden, that question would never arise.
Q: Well, if I’ve peeled the apple.
HANS-HERMANN HOPPE: If I’m the only one on the island, the question never arises. I simply do it. That’s it.
Q: Two questions, one for Stephan Kinsella. The question of IP has been fairly controversial even within libertarian circles, although I think the consensus is probably moving in your direction. Rothbard, for example, thought that there is a case for copyright as opposed – as to patent – a case-in-contract law for copyright. What is the state of play amongst libertarian thinking – thinkers now? And in particular, have you had this discussion with, say, Ayn Rand aficionados? Because Ayn Rand was almost paranoid on the question of intellectual property in favor of intellectual property. And the other question is for Tony Daniels. With your contact – personal contact with a number of murderers, has that affected in any way, and in what way, your thinking of the death penalty?
STEPHAN KINSELLA: All right. I know some objectivists who are now against intellectual property, and I know a few anarchists objectivists. So not all objectivists here even at this – I’ve actually got a web post somewhere where I list a few objectivists I know who have come around on IP. My impression is that most libertarians never thought about IP very much until it became a big issue after the internet in ’95. Ayn Rand was in favor of it I think because it was in the Constitution and because she was a novelist, so she was self-interested and she revered the Constitution. A hundred years ago, so there was a big debate in Liberty Magazine between Tak Kak and Benjamin Tucker about IP.
There was a big debate about it in the 1800s between free-market economists who were opposed to it because they saw it as intruding into the market. And Lysander Spooner even was insanely bad on IP even though he was good on so many other things. He, like Galambos, who is probably the craziest ever on IP, believed in perpetual copyrights and patents, so they would last forever. So we would be paying royalties now for the use of fire to cook food and the wheel, and it would just be – we would die as a race because no one could move. You’d have to get permission from everyone, and we would just die off.
My impression is, as libertarians started looking at this issue, by and large they’re opposed to it. There’s a few empiricists, utilitarian-minded and minarchist types and constitutionalists, who are still in favor. So my impression is virtually all anarchists of the left anarchists and the anarcho-capitalists pretty much all against it. Most Austrian libertarians are against it. Left libertarians seem to be against it. Radical libertarians seem to be against it by and large. There is still some debate, but honestly I get asked all the time, hey, would you do a debate on IP? Who would you suggest on the other side that’s any good? I don’t – I literally don’t know anyone who has a good argument for IP, not even one that’s plausible.
Richard Epstein mouths off about it, but he doesn’t produce any empirical evidence to back up his empirical case. There’s an objectivist named Adam Mossoff who keeps threatening to un-bosom onto the world the true objectivist argument for IP that Rand never really gave and we’re still waiting to see something that makes sense. But their argument basically is that rights come from the creation of what they call values, and you own the values you create. They said they don’t have a proper understanding of the subjective theory of value, that we don’t own values. We demonstrate that we value things by acting to achieve them, but value is not a substance or a thing out there in the world that you own. You could call an objective that you produced a value, but you own it because it’s an object that you produced. It’s got nothing to do with the ownership of values, so I think that’s the current state of play.
HANS-HERMANN HOPPE: (indiscernible_00:48:34) was against it. Hayek was against it. Mises was against. In the Austrian tradition, almost all economists were against intellectual property rights.
STEPHAN KINSELLA: And Rothbard’s argument on copyright is confused. I don’t think he – when he used the word copyright, he clearly did not have in mind what the word copyright means. Copyright – because his argument included a mousetrap, which is an invention, which was what patent law covers. And his argument looks like it’s a contractual argument. He’s – I think it’s a little bit confused, but I think the best way to understand it was he was envisioning a web of contracts that people would make. They would put limitations of use on objects they sold and he thought that somehow could bind in third parties. But I think he lost sight of the fact that the information is separable from the underlying owned thing, and he should have seen that because of his good argument on defamation. If he would have applied his defamation argument to the IP case, he would have, I think cleared up his mind on the copyright issue.
HANS-HERMANN HOPPE: Tony.
ANTHONY DANIELS: Well, being a doctor in prison did affect me in the sense that the doctor had to attend an execution, and in fact, he had to make the person fit for execution, which is an interesting concept. I mean a part of the fitness was the person was in his right mind, but it couldn’t be so that he learned from experience. So it was all very odd, and I didn’t think I personally could have participated in an execution, and I couldn’t really – and it wasn’t just an aesthetic objection. And I don’t think I could have advocated that somebody else did something that I thought I couldn’t do for ethical reasons, which is not to say that you didn’t meet people who were so terrible that you thought that they deserved to die. But that’s a different thing entirely, and as Hamlet said, treat each man after his dessert, and who should ‘scape whipping? And so – and I’m against the death penalty, but it wasn’t really actually meeting the murderers that put me off the death penalty.
Q: Can I ask a question? Yes. My question is of a strategic nature. Dr. Hoppe, you spoke about a counterculture. To my knowledge, that is actually a Marxist term by which true injecting confusion in the public debate and especially the hauling out of terms you make possible allies to be enemies, (indiscernible_00:51:45) as you have said. How can, in your view, the libertarian movement in the next 20 years regain the paradigm? Because this is a very interesting meeting, but it is a very isolated phenomenon, and I’m very interested to learn how we can re-conquer the culture, or maybe it’s not possible. I don’t know.
HANS-HERMANN HOPPE: I indicated what I think can be done. You can all go home and try to do the same that I did. And thereby create a wider audience being perceived by the outside world, ridiculing the present dominant culture. I don’t see any other ways to do it. I mean I don’t – I do think that I have had some effect with what I have done, and I think that can be imitated. I would want it to be imitated, but as I said, it is not an easy thing to do.
Q: It’s a slow process.
HANS-HERMANN HOPPE: Slow process, and of course, David Durr has of course indicated how, by assembling people of – like-minded people, how they can possibly proceed by initiating legal procedures and creating enough publicity. For instance, you need also people like the people here who are useful in order to create the publicity to have newspapers reported, all sorts of blogs and internet sites reporting about the legal proceedings that we will start against the (indiscernible_00:53:48).
DAVID DÜRR: Well, that’s – to take this on, that could be an example besides many other examples. Maybe what is also important to have in mind to such questions is it’s really a fundamental change in a way. And it’s that fundamental that it’s almost impossible just that the group comes in and says now we want to change the world and then it’s done. Actually, in the aftermath, I think one can only say, oh, the history, the big stream of history I showed this morning. In the end, it took a better turn than one was afraid it would. There are many signs that go in a very bad direction to this one-world state when it’s about tax collection and fight against terrorism. Then even USA and Russia and China work together, so these are horror scenarios, so there is a strong stream in that direction.
And in a way, we can just – in a way – in one way – I’ll come to the other – we can just hope that it won’t go definitely in that direction that the course will change before. And on the (indiscernible_00:55:18) then it’s worthwhile—very much worthwhile—to try to strengthen those tendencies that goes in that direction. So only if there are tendencies in that direction, I think one can find it in groups like that and in other discussions that there are tendencies, that there are ways of thinking in that direction. Then it’s very useful to enforce them, to strengthen them, to discuss with people about them, and to try to find fields of specific actions such as (indiscernible_00:56:02) for instance, this lawsuit or other possibilities.
HANS-HERMANN HOPPE: Okay. I think we have reached our time limit. Ask the other questions privately afterwards. Thank you for coming. I’ll see you tonight a little bit later.