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KOL038 | Debate with Robert Wenzel on Intellectual Property


Kinsella on Liberty Podcast, Episode 038.

[Update: see my post Wenzel the Werewolf]

Blogger Robert Wenzel and I had a “debate” earlier today about IP, to be jointly put up on my podcast and his Economic Policy Journal “podcast” (it’s on his site at Kinsella Crushed!! and Initial Report on Debate, and mentioned ahead of time several times as linked below). Bob is an Austrian libertarian (I think) blogger but has been criticizing me and Jeff Tucker’s anti-IP views for a few years now (see links below), so we decided to discuss it.1

The transcript is available here.


Backup copy:

The discussion went on for over 2 hours. It went about as I expected: he tried to dwell on side points, he refused to—was unable to—even attempt to define IP much less provide a coherent justification for it. He repeatedly engaged in question-begging: calling using information you learn from others “stealing,” which presupposes that there is some owned thing that is stolen. He started out with several bizarre, off-point attacks: for example challenging my claim in my 2001 piece Against Intellectual Property that Rothbard was one of the original libertarian opponents of IP. The entire criticism by Wenzel is bizarre because whether or not I am right in listing Rothbard as an opponent of patent and copyright has nothing to do with whether IP is justified. Further, later in the paper I have an extensive section dealing with Rothbard’s attempt to come up with some kind of contractual scheme that emulated some aspects of IP, which he confusingly calls “copyright.” Some libertarians, like Wenzel, apparently think Rothbard did support copyright (though Wenzel repeatedly equivocates on whether he is talking about state copyright or Rothbard’s private “copyright” scheme), or patent, or something in between, and others say he didn’t. For example  David Gordon writing on LewRockwell.com, in Sam Konkin and Libertarian Theory, observes:

… anti-IP views were very much in the air thirty years ago: Wendy McElroy stands out especially in my mind as a forceful and effective critic of IP. Even earlier, Rothbard had in Man, Economy, and State (1962) favored the replacement of the state system of patents and copyrights with contractual arrangements, freely negotiated. (If one moves outside modern libertarianism, Benjamin Tucker rejected IP well over a century ago as Wendy McElroy has documented in an outstanding article.

Rothbard did not take this “contractual copyright” idea very far and indeed I believe it contradicts other aspects of his thought such as his contract theory (ch. 19 of Ethics of Liberty), his opposition to reputation rights/defamation law (ch. 16), and his explicit opposition to patents (ch. 16, also Man, Economy, and State and Power and Market, Scholars Edition, pp. liv, 745-54, 1133-38, 1181-86).

But anyway, what does it matter? It’s a bizarre appeal to authority. I am quite sure that Rothbard would have agreed with us anti-IP libertarians if he had had more time to sort it out; as I noted, it’s implied in all the structure of his political theory. This is why Hoppe easily saw this by integrating Rothbardian  and Misesian political economic ideas (Hoppe on Intellectual Property). But so what if he would not have? Then he would have been wrong. And so what if I had been wrong in listing Rothbard as an early libertarian opponent of IP (though he arguably was; although as the paper explained later on, his position was not fully fleshed out and/or had ambiguities). How does this prove IP is legitimate? It does not, but Wenzel has no good argument for IP which is why he for over two hours refuses my repeated requests that he provide one—after all, it’s supposed to be a debate about IP. In fact in my opening statement I explained that the burden of proof is on the pro-IP libertarian: to provide a coherent definition of and justification for IP, especially given its statist origins and statist usage today (Where does IP Rank Among the Worst State Laws?).

At another point Wenzel, going back and forth on whether Rothbard did, or did not, support IP, or patent, or copyright—yes he did, wait, no he didn’t, well not copyright like today, but copyright like in 1962, but private copyright, not legislated copyright, and copyright that somehow includes patents, though he mounted a great case against patents…. duuuuuhhh who knows what Wenzel thinks Rothbard thought about patents (and why is this relevant in a discussion of whether IP is legitimate?)—Wenzel says Rothbard believed in perpetual copyright, something I found amusing since this is what the absurd Galambos and Spooner believed in, and whatever Rothbard thought about IP, he was an opponent of the traditional concept of IP and patent and state-legislated copyright. Wenzel finds a quote from Rothbard about perpetual copyright, but of course Rothbard was talking about his contractual “copyright” which is not the same as the IP protected by modern systems (I tried in vain to explain the difference between in rem property rights and in personam contract rights, since the latter are only private agreements between a small group of people and do not affect third parties, unlike in rem or real property rights, which is what real IP advocates want IP to be; meaning you cannot create property rights like IP rights, out of contract rights; but Wenzel was uninterested in serious dialogue). Wenzel basically is arguing here: “ha ha, look at Kinsella, he does not have the Boldrin and Levine paper memorized, or every word of Rothbard, so he is a shoddy thinker! Therefore, IP is legitimate!”

And this, ladies and gents, is what passes for an attempt to argue for IP: bluster, bravado, circular reasoning. I have yet to see a good argument for it and Wenzel did not offer one. (Intellectual Nonsense: Fallacious Arguments for IP (Libertopia 2012)There are No Good Arguments for Intellectual Property.) I asked him a dozen time to give me his view on IP and he kept promising to do it later; 1.5 hours in it became obvious he would continue to stonewall, and to try to read boring quotes from my footnotes (snore), so I tried to state his position for him, which he basically agreed with. His argument is what he imagine’s some version of Rothard’s to be: that you can sell ideas, they are “scarce,” so you can own them. Wow! No one has ever grappled with this brilliant insight before, Wenzel!

Another bizarre attack was his reading of a Hoppe quote on epistemology and demanding to know if I still agree with the Misesian approach to epistemology; yes, I said. Aha! he pounced—but if you are not a utilitarian WHY DO YOU POSITIVELY CITE BOLDRIN AND LEVINE!! It is positively bizarre. As if showing that utilitarian arguments for IP fail even on their own term is somehow becoming a utilitarian. It’s an incredibly stupid argument.

Ultimately the “debate” was pointless because Wenzel does not know how to engage in subtle discussion, he engages in question-begging repeatedly, he engages in bizarre ad hominem and tangential arguments, he refuses to define terms and seems unable to engage in clear, analytical reasoning. Honestly, he seems to have no clear position at all on IP, so it’s kind of a mystery why he is so invested in it at all, so passionate about it, so hostile to my views. Other than his thinking he has some magical formula for getting Drudge Report links that he wants to be able to sell in his Drudge-Report dominated libertarian paradise. Apparently he is for some reason upset that anyone would dare, DARE, to ever challenge or disagree with Rothard (though there is no way Wenzel could agree with Rothbard’s own contract theory or views on defamation law, and maintain his pro-IP stance), or that the anti-IP position is becoming the default position among modern libertarians (The Origins of Libertarian IP AbolitionismThe Death Throes of Pro-IP Libertarianism).

Listen if you dare; I cannot promise it will be enjoyable; and I apologize in advance for at times being unable to take Wenzel’s unfounded bluster and bravado and sputtering attempt at arguments seriously, and sometimes myself resorting to sarcasm, mockery, condescension, and coarse language (all accurate and well-deserved).

In short: Wenzel embarrassed himself but as expected is saying he “crushed” me—all the while seemingly oblivious to the fact that he did not even attempt to argue for IP must less define it or establish that it is justified or compatible with libertarian property principles.

Update: Stephen Davis sent me  debate summary, appended below:

Wenzel-Kinsella IP Debate Summary
1) Kinsella makes opening remarks stating that (a) he assumes Wenzel agrees that there should be a free market and a system of private property rights in scarce resources, (b) all he has to show is that the idea of IP sets up some kind of right that is incompatible with the rights Wenzel already supports, (c) to establish the case for IP, Wenzel needs to make a positive case explaining his theory, including putting forth a clear and coherent definition of IP, explaining why it’s justified, and explaining how it’s compatible with regular property rights, and (d) if Wenzel can’t present a positive case, then he should at least present one clear example that shows a case for IP of some type, in a free market, that doesn’t depend upon the state and explain how it’s compatible with regular property rights.
2) Wenzel explains that Kinsella has really pissed him off and asks if Kinsella thinks he’s a worm, a weasel, or a clown. Kinsella says that he doesn’t think he’s a worm, that he thought he might weasel out of the debate, and that he makes some clownish arguments and sometimes treats his guests in a clownish way.

3) Wenzel describes Kinsella’s book as terrible, misleading, containing poorly framed arguments, and illogical at points, then says it’s bizarre that it’s gotten any attention.4) Wenzel claims that Kinsella wrongly included Rothbard among a group of thinkers belonging to a long tradition of opposition to patent and copyright. In support of his case Wenzel quotes Rothbard using the word “copyright” and saying that it’s a logical device of property right on the free market. Kinsella says that although Rothbard used the word “copyright,” he advocated contractual arrangements and nothing else.5) Kinsella points out that even if he misdescribed Rothbard’s view, which he believes he didn’t, that this has no bearing on whether IP is legitimate. Wenzel says that people who don’t have time to research Rothbard’s views are going to be misled by Kinsella’s book and that Kinsella is a sloppy writer and thinker.6) Kinsella asks Wenzel to give his definition of IP and explain why it’s justified. Wenzel says that he’s building his base towards it and that he’s getting there.

7) Wenzel says he will show that Kinsella is a sloppy writer and thinker and that he doesn’t know what he’s talking about. He says that he wants to destroy Kinsella because he (along with Jeff Tucker) has a following in the libertarian movement and his thinking is so off, so bad, and so sloppy that it needs to be destroyed.

8) Wenzel points out that Kinsella has an online post called “Boldrin and Levine: The Case Against Patents” and that Boldrin and Levine are utilitarians. Kinsella states that he is not a utilitarian. Wenzel points out that Kinsella says that people who favor patents on utilitarian grounds must be either ignorant or dishonest, and Wenzel asks how he can make such a claim. Kinsella points out that the empirical data do not support the utilitarian case for patents, so sincere utilitarians would have to oppose patents if they were aware of the studies. He points out that if utilitarians are aware that the empirical data do not support their case yet still support patents, they are dishonest, and if they aren’t aware of the studies, they are ignorant.

9) Wenzel grills Kinsella about what’s in the Boldrin and Levine paper and Kinsella describes their general thesis. Wenzel claims that Kinsella didn’t read the paper.

10) Wenzel asks Kinsella why he cites utilitarians in support of his argument when he claims not to be one. Kinsella points out that he is a principled libertarian and therefore opposes patents on propertarian grounds, but that there’s nothing wrong with pointing out that utilitarian arguments fail on their own terms.

11) Kinsella asks Wenzel to present an argument.

12) Wenzel quotes Kinsella discussing why authored works are not scarce in the way that a piece of land or a car are scarce. He asks Kinsella what he means by “scarce.” Kinsella explains that he means “scarce” in the way that every economist means it: rivalrous.

13) Wenzel says that he has a formula to drive traffic to his site from Drudge Report. He asks Kinsella if his formula is scarce, or whether every blogger in the world knows his formula. Kinsella says that Wenzel is assuming that if everyone doesn’t have it that it’s scarce, and says that patterns of information are not scarce. Kinsella cites Mises and says that knowledge guides action but is not a scarce means of action.

14) Wenzel asks Kinsella if his Drudge formula is superabundant and asks why it is not scarce. Kinsella says that it is not scarce because it is not rivalrous. Kinsella says that a rivalrous good is one that can only be exclusively controlled by one person at a time. Wenzel asks why that is the definition and claims that there is rivalry between him and someone selling the same formula as him (and driving the price down).

15) Kinsella says that Wenzel is engaging in equivocation because rivalry in the sense of competition is not what economists mean by the term “rivalrous.” He says that people might metaphorically speak about fighting over religion, but that what they’re really fighting over is rivalrous resources such as bodies or land, and that religion is simply the justification given.

16) Kinsella says that in Wenzel’s example, someone selling the same formula as him is simply competing with him and that doesn’t make his formula rivalrous. Wenzel continues using the term “rivalry” synonymously with “competition” and claims that Kinsella doesn’t know what he’s talking about.

17) Kinsella says that competitors might “take” sales from each other, but that they have no property right in the money of customers.

18) Wenzel claims that any reasonable person is going to know that his Drudge formula is scarce and that if someone else learns about it, that person is in rivalry with him. He says this is common sense and that he doesn’t have to defend it any further.

19) Kinsella poses a scenario: If Wenzel owns a drug store and a competing drug store opens up across the street, would that be rivalry? Wenzel says of course. Kinsella then asks if the competing drug store takes away some of Wenzel’s business, are they taking away something that Wenzel has a property right in? Wenzel says that rivalry is competition and that if the competing drug store stole his products and sold his products, that would be stealing. Kinsella says that Wenzel is engaging in question begging by analogizing physical things to his Drudge formula.

20) Kinsella asks Wenzel to agree with him that you can’t establish something by engaging in question begging. Wenzel agrees.

21) Wenzel asks Kinsella what is superabundant about his formula. Kinsella says that his formula is not superabundant, but that it can be infinitely copied.

22) Kinsella explains Hoppe’s discussion of why scarcity is a necessary condition for the emergence of property. Kinsella says that we live in a world in which there are scarce resources (what Mises called the means of action) and that libertarians believe in property rights to assign an exclusive owner to each scarce resource. Kinsella says that knowledge is not a scarce resource.

23) Kinsella asks Wenzel what his alternative theory is. Wenzel says his theory is that ideas are scarce.

24) Kinsella explains the implications of assigning property rights in ideas. He says that there would have to be property rights in recipes for fashion, newspaper headlines, pizza, and bar drinks; that we’d all have to get permission to use any information; that all ideas are built upon other ideas. Kinsella explains the harm that granting new rights does by creating obligations on other people. Wenzel says that he doesn’t want to hear that stuff and that it’s a simple fact that ideas are scarce.

25) Wenzel asks Kinsella to demonstrate to him how he uses his Drudge formula. Kinsella asks Wenzel if he can tell him what’s in his left pocket. Wenzel says that he can’t and that’s the exact point. Wenzel says that knowledge is scarce.

26) Kinsella asks if Wenzel’s argument is that if something is not superabundant that there should be property rights in it. Wenzel says that ideas and information are not superabundant like air.

27) Kinsella asks Wenzel if he learns about his Drudge formula, why can’t he act on it? Wenzel says it depends how he learns about it. Kinsella agrees. Kinsella says that if he contracted with Wenzel not to reveal the information, that is perfectly legitimate, is simply a contract, and has nothing to do with IP. Wenzel says that at this point, with only A and B involved, his Drudge formula is scarce.

28) Kinsella says that scarcity explains why we have property rights and what their function is. He says that when people come into conflict over something that only one of them can use at a time, libertarians believe that the one who homesteaded it first or that contracted for it is the one who gets to control it. He says that the case against IP is recognizing that the only way to grant IP rights is to undercut earlier homesteading rights.

29) Kinsella states his agreement with Wenzel that if B has a contract with A to keep information secret, that B is bound by the terms of the contract. Kinsella asks Wenzel if B violates the contract and the information becomes known to C, who is not a party to the contract, how C is violating A’s property rights? Wenzel starts analogizing information to cars, and Kinsella says that he is question begging because they both already agree that there are property rights in cars.

30) Wenzel asks why he can’t ask person C, who got his information from B, to take the information off his website, just as Hertz could ask for a rental car back from person C. Wenzel says that it’s the same whether you are talking about information or talking about a car. Kinsella says it’s not the same because the car is a rivalrous resource and the information is not.

31) Wenzel asks why his formula isn’t a rivalrous resource when only three people know it and a competitor using it drives down the price. Kinsella asks what driving down the price has to do with its nature as a rivalrous good. Wenzel starts talking about stealing goods, and Kinsella asks how someone learning information is committing theft.

32) Kinsella says that Wenzel’s theory seems to be that if he can sell something for a price, then he should have some sort of anti-competitive right to keep the price high, which makes it scarce in a sense, so it can be owned. Wenzel says that if something has a price, it is scarce.

33) Wenzel says that he is for private property and he thinks that intellectual property is property.

34) Wenzel starts saying that if someone obtains something illegally… then Kinsella says that he is question begging because he can’t say that it’s illegal in the argument for why it should be illegal.

35) Kinsella gives examples involving making a chocolate cake and a bloody mary. He points out that he and Wenzel agree that there should be property rights in the scarce physical means that go into making each. Kinsella asks Wenzel to agree that while multiple people couldn’t use the exact same scarce physical means to make a cake or a bloody mary, multiple people could use the same knowledge at the same time. Wenzel agrees, but says that not everyone is going to know the information, so the information is scarce.

36) Kinsella asks Wenzel whether person B learning how to make a bloody mary from person A and later making a bloody mary somehow prevents person A from making a bloody mary. Wenzel says that the information is still not superabundant and that not everyone in the world knows how to make a bloody mary. Wenzel says that if a person is stealing that from him, that proves his point.

37) Kinsella asks Wenzel if B observing A and learning from A’s behavior is stealing from A. Wenzel says yes. Kinsella asks again. Wenzel says that it’s taking. Kinsella points out that A still has it, so it’s not taking. Kinsella says that it’s learning. Wenzel says he’ll go along with calling it B learning from A.

38) Wenzel says that if someone has to learn knowledge, that knowledge is not superabundant. He says it’s a scarce good. Wenzel says that he’s had economists steal his critiques of Krugman, and Kinsella says that’s question begging because he has not agreed that IP is a type of property. Wenzel says that Kinsella can interpret it that way in his own world, but that he considers it theft.

39) Wenzel poses a scenario in which he has a formula for getting on Drudge and he agrees to sell that formula to B on condition that B can use it, but can’t reveal it someone else. Kinsella asks if someone else observing B over time and figuring out the formula counts as revealing the information. Wenzel says no, that is someone else independently gaining knowledge of the formula. Kinsella says that Wenzel has given up the entire case for IP.

40) Wenzel says that Kinsella doesn’t understand Rothbard and that Rothbard would favor perpetual copyright.

41) Wenzel tells Kinsella to talk about some other thing (while he apparently researches Rothbard’s perpetual copyright quote).

42) Kinsella asks Wenzel for his defense of IP. Wenzel says that ideas are not generally superabundant, they are scarce. If A has an idea, it’s his, and it’s scarce. If A makes a contract with B, it’s still scarce because it’s between A and B. If B reveals it to C, and B violates the contract, in the same way that if someone rents a car from Hertz and sells it to C… Kinsella says that this is question begging. Wenzel says it’s not question begging.

43) Wenzel quotes Rothbard using the word “copyright” in support of his argument that Rothbard is not against IP. Kinsella says that Rothbard thought contract could be used to replicate some features of the modern copyright system and that he was wrong. Wenzel says that he wasn’t wrong, and that this is more sloppy stuff from Kinsella.

44) Wenzel goes back to the Hertz example, and Kinsella says he’s begging the question. Kinsella points out that they both agree that there are property rights in cars. Kinsella says that when someone rents a car from Hertz, they sign a contract agreeing to use it for certain purposes, and that if they violate the contract…

45) Wenzel stops Kinsella because he finds the Rothbard perpetual copyright quote. He quotes Rothbard talking about “copyright” that is “perpetual.” Kinsella says that Rothbard was talking about contracts. Wenzel says that he has Kinsella by the balls.

46) Kinsella explains the difference between contractual rights and rights good against the world and says that contractual rights involving information can not be built up to support a theory of rights in information good against the world.

47) Wenzel says that Kinsella’s framework is based on broken contract and that his theory doesn’t even start until a contract his broken.

48) Wenzel poses a scenario in which he creates a house design with certain exterior features and certain interior features that he wants to protect. He draws an analogy to the Mises Institute’s sign saying “private property” and says that there are costs involved with protecting property and it’s a matter of deciding how far you want to go to protect that property. Kinsella says that he is question begging by calling his house design property.

49) Kinsella poses a scenario in which Wenzel reveals his house-building technique to a dozen people by contract and one of them leaks it online. He asks whether the technique can now be used by everyone. Wenzel says that Kinsella’s framework is based on broken contract and that he has no theory without a broken contract.

50) Wenzel asks why Kinsella keeps bringing up situations in which contracts are broken. Kinsella says that he is doing it because Wenzel is basing his theory on contract and he is demonstrating why that won’t work, since third parties can’t be bound by the contract.

51) Kinsella says that he doesn’t think that people will agree to contracts that subject them to massive penalties for doing such things as buying a book. Wenzel agrees.

52) Wenzel says that people can design whatever kind of contracts they want and asks Kinsella whether he has a problem with the way the free market works.

53) Kinsella makes closing remarks stating that we are already living partly in the nightmare world that Wenzel wants, in which hundreds of billions of dollars are wasted on patent lawsuits; IP is used to intimidate and extort people; oligopolies are created; competition is reduced; innovation is distorted and reduced; the government uses copyright to censor, threaten, ratchet up the police state, and control the internet; and people are going to jail for downloading copies of movies. He says that IP carried to its full extent would lead to a fascist, anti-property world, and he hopes that it won’t be extended any further. He says that thankfully most Austrians and libertarians recognize the horrible, fascist, police-state, anti-competitive, anti-human-life thing that IP is and are arguing against it.

Update: I do think Wenzel is in part sincere; he is just confused, and at this point too proud or invested in his status as a “thinker” to debate this with the proper inquiry and humility. Sad for him. The comments on youtube, facebook, reddit, even on his site are overwhelmingly devastating to him; I feel bad actually. Also, early on he asked me if I believed in free market copyright; I thought he said property right so said yes; that confused him for a while. Mutual mistake. On his questions to me about what was in the Boldrin Levine piece—since his question was out of the blue I at first thought he was talking about their Against Intellectual Monopoly book. I finally realized he was not talking about my earlier writing but about a recent blogpost where I mentioned their recent paper (Boldrin and Levine: The Case Against Patents). He was apoplectic that I said, in that post:

We can only conclude, at this point, that people who favor patents on “utilitarian” grounds are either ignorant or dishonest.

He was upset that I could not cite the federal labor statistics they used in their paper, for some weird reason. Good “gotcha”, Wenzel! He also thought it was odd I would use this to counter pro-IP utilitarian arguments, as if this means I am contradicting my anti-utilitarian views. Of course, this is ridiculous.  But he also thought I was saying the 2012 paper itself shows pro-IP utilitarians must be ignorant or dishonest; well it’s the fact that after 220 years, there has not been clear empirical evidence buttressing the pro-IP utilitarian case; studies like this are just summaries of or evidence of this. (See The Overwhelming Empirical Case Against Patent and Copyright.) Yet another bizarre “argument” by El Wenzellio.

The “nickels” comment (2:18:05) was from his post The Irresponsible Jeff Tucker, where he criticizes Tucker for merely stating his opinion about bitcoin, in the same post where he crows about his recommendation that people “buy nickels” (yes, shoeboxes of nickels, squirreled away in your closets).

In addition to the comments below, almost every forum I see (email, Youtube comments, Mises community, Reddit, Facebook (here, here, here, Michael Barnett’s post (suggesting Wenzel be put on suicide watch; others wondering if it’s an April Fool’s joke, Wenzel was so bad), here, here, Justin Longo‘s post, here, here, Dan Cotter’s epic thread, and Mises South Africa’s post The Wenzel IP Embarrassment, Murray D. Lewis’s post The Not-So-Great Libertarian IP Debate.)) are almost 98% anti-Wenzel. Even on his own varied blogposts, from which he is apparently blocking many critical comments (as many have reported elsewhere), he is being largely attacked, even by his own following. Truly, he has jumped his own Fonzi shark.


The Mises community thread has a few great comments:

By John James:

Oh this was so much fun.

Maybe it was my anticipation of it, but I don’t know how you guys could stop listening.  It was as entertaining as a good movie.  I even had my popcorn.  (Well, it was tortillas, but still.)

I’m going to address specific points from the debate, so if you want to listen first, go ahead and do that before reading further 🙂


Pre and early debate

My pre-debate guess was correct…despite all his “getting into Kinsella’s head” posts on his blog, it was Wenzel who was getting people in his own head.  He all but admits it when early on he proclaims several times how Kinsella “pissed him off”.  And he was clearly emotionally affected for the vast majority of the podcast.

What’s also telling is how Kinsella laid it out quite clearly (in his intro, no less) that the burden on Wenzel (and any pro-IP advocate) is to actually provide a positive case for IP…that simply picking at Kinsella’s argument or anyone else’s is not sufficient.  But notice that’s exactly what Wenzel starts off doing.  And it’s not even a good pick…he picks on Kinsella’s opening statements inAgainst Intellectual Property, where he lists Rothbard as an example of people showing anti-IP sentiments?

I guess it should have been expected, given Wenzel’s obsession with Rothbard (that goes even beyond his fixation with Jeff Tucker).  Wenzel is probably more “If Rothbard said it, it’s Gospel” than even Lew Rockwell.  So I suppose it’s fitting that his first instinct is to make sure to try and make the point that Rothbard was in favor of IP…because of course that’s the side he himself has taken, so of course the most important thing is that that’s the side Rothbard was on…and if that means he can show Kinsella was wrong in a statement about Rothbard, so much the better.


Wenzel’s lack of a positive argument

The trouble Kinsella has right from the start in getting Wenzel to even give a definition of “intellectual property” illustrates quite plainly what has been said in the comments of Wenzel’s blog for some time now: Wenzel has basically avoided stating any real concrete explanations of anything he’s had to say on IP…so no one has really had any way of actually dismantling his pro-IP position…because he essentially won’t give one.

Every time he’s ever been challenged on it he just claimed it would be dealt with in his “upcoming book”.  For FOUR F-ING YEARS he’s been saying that.  No joke.  Here’s the earliest mention (earliest I happened to know of, anyway) of this mysterious book …in2009.  (To put that in perspective, George W. Bush was still President, just 5 days prior.)  There may be others even earlier, but I’m not sure.

I think this comment from a few months ago was quite apt:

I am creating a new fallacy called “Argumentum ad Pseudo Librum”, it’s the “Argument by referring to an unpublished book” fallacy. Bob always drags it out when you start questioning his pro-“libertarian IP” views. He says “Just wait for my book” instead of responding to your argument. Then he never publishes the book.

Where is it? HBR? Wiley? Oxford? MIT Press? Who optioned the IP on this one?

I think this debate all but proves we’ll never see an IP book from Wenzel.  At least, not one that provides any sort of positive case for it, anyway.  I fully accept he may put out all sorts of crap attacking Kinsella’s work and that of any others…but I can pretty much guarantee we’ll never see anything of his explicating any of his own actual positions…something that everyone else can pick apart the way he insists on doing with Kinsella.

In fact someone even brought it up back in 2010 on his own blog

“It will be nice when you finally publish your IP book so we can all start taking swings at your IP views because right now it’s unclear what they are and why and everytime people try to critique them you insist we wait to read your book!”

…Again that was almost 3 years ago.

Wenzel has no positive position because he can’t.  Kinsella is simply right, there is no way to justify IP within a true libertarian framework.  It’s simply unlibertarian.  This is why Wenzel insists on trying to find fallacies in Kinsella’s writing, and simply quoting other people, instead of even defining what “intellectual property” is.  He won’t even define his terms….probably because he’s got at least a few brain cells left in his senility to know that the minute he actually states a concrete position on IP, he’ll be taken to the woodshed, not just by Kinsella, but by the entire libertarian population that understands the unlibertarian reality of IP…which is quickly becoming not only the vast majority of the libertarian population, but large numbers of the population even outside libertarian spheres…  (Falkvinge.netTorrentfreak.comLegal Scholars: Thumbs Down on Patent and CopyrightThe Origins of Libertarian IP AbolitionismThe Death Throes of Pro-IP Libertarianism)


Wenzel’s lack of understanding

You’ll notice this tactic of nitpicking is basically his whole “argument” for at least the first third of the podcast.  When he moves on to his Drudge Report formula, he simply fixates on the the fact that he’s (allegedly) the only person who knows the formula (even though there’s no possible way he could be sure that he’s the only one who has come to know it.  He fully concedes the concept of “independent discovery,” yet he apparently knows for sure he’s the only person to figure out this formula).  He claims that the fact that no one else knows it, means it’s scarce.  When Kinsella says it’s not scarce, Wenzel insists Kinsella recite the formula back to him.  As if a single person not knowing something means it’s scarce.

Even on Wenzel’s own terms…hypothetically saying ideas can be owned, I fail to see how one single man not knowing the formula demonstrates its “scarcity.”  I’m sure Kinsella could have easily asked Wenzel what the 100th digit in π is…does Wenzel’s ignorance of that prove it’s a “scarce” bit of knowledge?  And just how many people have to know something before it’s not scarce, anyway?  25? 250? 1 million?  Where do we arbitrarily draw this arbitrary line?

When Kinsella tries to point out that scarcity in the economic/property rights context implies rivalrousness, Wenzel equates “rivalry” with competition, using an example of himself being pissed off at party C who came to know his secret through breach of contract by party B…that means that him and C now have a “rivalry”.  The moron doesn’t even know the economic definition of the word…but then again I suppose that’s not surprising, considering he won’t define ANY of his terms.

This is further illustrated with his fixation with Hoppe’s words “super abundant”.  He basically takes those words as the litmus test for whether something is “scarce” or not.  (As if that were any less ambiguous than his “does a particular man know it” test from earlier.)  His problem is that he is evidently not familiar with the economic definition of “rivalrous”, so Kinsella has no way to explain what truly determines if something is scarce.

Wenzel thinks that if he can make a case that something isn’t “super abundant” — apparently because Hoppe is the ultimate authority on this, and his words are gospel, (where Hoppe ranks relative to Rothbard on this scale of supreme edicts from on high, I’m not quite sure) — then that specific something is not scarce.  Kinsella tries to explain multiple times that “abundance” has nothing to do with scarcity in this context.  When talking about scarcity in these terms, as Kinsella points out, the issue is whether they are rivalrous or not…that is, whether one person making use of the thing in question prevents or otherwise hinders someone else from using it.

Of course Wenzel never seems to get this point.  What’s funny is that a couple of commenters on his blog in his defense say thingslike “Yea….keep trying to convince everyone that “scarce” is something other than scarce,” but Wenzel’s opponents clearly state that ‘scarcity’ does not have to refer to ‘rarity’.


Logical fallacies

You’ll notice Wenzel’s entire argument — if you can even call it that — almost entirely centers around the fallacies of begging the question and a combination of argument by name (i.e. argument by definition, without stating a definition), equivocation, andappeal to authority…  (And that’s of course if you ignore what seems to be his overall argument, the ad hominem that Kinsella is “sloppy” and “doesn’t know Rothbard”.)

Throughout the whole podcast his overarching theme is that Kinsella’s writing is sloppy and Kinsella doesn’t know Rothbard very well.  What this does to prove or even support a pro case for IP, I have no idea.

When he’s not spouting ad hominem, he constantly seems to essentially make variations of the argument that ideas are property because they can be “stolen”, or that because it’s “theft of someone’s property” if you rent a car from Hertz and sell it to a third party, that means it’s also “theft of someone’s property” when you pay someone to share some information with you and then you reveal it to someone else…because “it applies to all sorts of property…intellectual property!” (1:51:40)

And when he’s not doing that, he’s either equivocating on the terms “scarce” and “rivalrous” or quoting Rothbard as saying “copyright is a logical device of property right on the free market”, and essentially implying that because Rothbard said that, that makes copyright valid…even though (a) Rothbard is not God, and (b) he wasn’t even talking about the same concept we are referring to by the term “copyright”.

Wenzel is so focused on Rothbard simply stating that “copyright” is valid, that he doesn’t even recognize Kinsella’s point that Rothbard may have said the word “copyright” but was in fact talking about something else.  Obviously if I take a bite of cereal and say “I sure do love eating cake”…that is not proof (or even strong evidence) that I actually like the dessert.


The closest Wenzel gets to making a point

I think the part at which Wenzel gets closest to making any sort of coherent point is the part about the Mises sign, where he’s referring to a blog post he made in which he embedded a picture of a “private property” sign on the parking lot of the LvMI.  It sounds like he’s making the point that everyone chooses to what extent they are willing to protect their property…meaning that the LvMI just put up a sign, but they could instead have a moat and sharpshooters.  Applying that to his “Rothbardian” world of IP, it seems like he’s trying to say that you get to choose to what lengths you’ll go to to enforce your “intellectual property rights”…meaning if you are using information that someone else owns the copyright in, they can choose to simply send you a cease and desist letter, or they can actually go tie you to a chair.  I think.  I can’t really be sure.  He never really makes it clear, but either way it’s irrelevant because he’s still begging the question.  He hasn’t established that anything that is currently protected by IP laws is actually property.  So it makes no difference how such things would get “protected” in a “free society”…he hasn’t proven that they should be allowed to be “protected” (i.e. that you should be able to use force to prevent others from using them.)

I also understand what he’s saying when he tries to say that Kinsella’s theory doesn’t begin until a contract is broken, but he only says that because in that moment he’s limiting his view of what constitutes “intellectual property”, or at least, what is currently protected by IP law (again, we never got a definition of IP from Wenzel).

He thinks that the only way things can become super abundant (when the “secret-knower” doesn’t want his secret out) is if someone breaks a trade secret-type contract with someone else.  But he’s neglecting virtually all forms of copyright.  If my house is near a pavilion, and an outdoor concert is being held there, and a band plays a song and I happen to hear it, under current copyright law I can’t just go play that music on my own piano, record the sounds my piano makes, and sell copies of the recordings.  (Not without paying someone a royalty, anyway.)

But there was no contract between me and the person playing the song.  So how can he justifiably prevent me from selling my recordings of my piano playing?  Kinsella addresses this very clearly in his monograph when he discusses how Rothbard was wrong: sure you can set it up so that everyone who buys a book agrees to a contract to not share the information contained within it…but suppose a third party comes across the book left on a park bench?  Or sees words on the page over your shoulder as you’re reading it.  Can they now not go write a new story about those same characters?  According to current copyright law they can’t.  But what contract have they broken?  What contract has anyone broken?

Kinsella actually starts to get to this point when he actually poses that same book scenario, but he elects to take it in a different direction and point out how no one would even agree to such a contract.  Personally I would have just hypothetically agreed with Wenzel’s suggestion of such a contract and gone straight to the third party learning the information without B breaching the contract, because as we saw, Wenzel just used the wiggle room, leading to spit-on-the-keyboard moment starting at 2:16:17. [described below]


Funniez and other timestamps

One of my favorite parts comes at 0:24:33 when Wenzel claims Rothbard supports copyright, and Kinsella says that’s false.  Then Wenzel quotes Rothbard saying “copyright is a logical device of property right on the free market”…right after Kinsella initially brought up that very section of Rothbard’s work himself to show that Rothbard was confusing the term “copyright”, as his example was a mousetrap…an invention…which is not covered by copyright, but patent.  So when Wenzel introduces this quote, Kinsella responds “Bob, he’s talking about a mousetrap.  Do you understand the definition of…”


I swear this guy was senile over 2 years ago when I initially said it.  He’s so far gone now it’s comical.


1:18:28 was another one of the multiple parts I almost laughed my way into needing a new keyboard.  Kinsella references Rothbard’s “half-hearted” argument for contractual copyright.  The minute he said that I was like: “Uh oh.  NOW he’s gone and done it.”  And Wenzel so totally delivered: “HALF HEARTED?! ROTHBARD?!??”  Watch out Kinsella.  I’m sure there’s now a nice little spot for a doll of you in Wenzel’s Rothbard closet shrine.

2:16:17:  Kinsella asks “well how is [the contract] going to be designed then?”  And Wenzel doesn’t have an answer: “Who knows?  Let the free market decide.”  And then Kinsella sums up Wenzel’s argument:

“So in other words, you think maybe you could have a contract that could act something like IP, but what would the contract look like?  ‘Who knows?!’  What would IP look like?  ‘Who knows?!’  But I’m still in favor of it!”  (Another nearly new-keyboard moment.)

1:42:19 is probably the best Cliff’s Notes boil-down to the basis of Wenzel’s amateur position.  I love how he’s so forceful with it, but yet still doesn’t seem to be able to state it smoothly…all the meanwhile Kinsella is mockingly playing along with “uh huh”s as if he hasn’t heard this crap a thousand and one times.

1:50:58 Wenzel gives his own summary of his major points: Kinsella doesn’t know Rothbard, Kinsella quoted a paper in a blog post but didn’t read the paper, and Kinsella thinks Wenzel’s formula to get on Drudge is super abundant.

..I assume, “therefore, IP is valid”?

1:10:01 I was literally at the edge of my seat when I heard Wenzel begin “my alternative theory is…”  And then it finally comes out: “…ideas are scarce.”

There it is folks.  That’s Wenzel’s basis for IP.

Of course now that Wenzel actually stated a position pertaining to IP, Kinsella just as a reflex jumped right into his refutation of that particular flawed justification for IP (the same one he and so many others have fleshed out so many times he could do it in his sleep).  I just wish he would have slowed down to make Wenzel agree with him in a step by step Socratic way, so Wenzel couldn’t worm his way around later.

1:41:28  The second admission we finally get from Wenzel of something concrete is that Rothbard would be in favor of copyright into perpetuity (which I think it goes without saying that that means that’s what Wenzel is for too.)  Can I just say, “holy shit?”  Of course Kinsella laughs and Wenzel starts looking for a quote, and when he immediately discovers he can’t search and talk at the same time, he tells Kinsella to “talk about some…uh…some other thing” (obviously so he can ignore whatever point Kinsella makes and use the time to track down his next Rothbard quote.)



Basically this interview exposes that Wenzel has absolutely no new theory of IP or even property rights.  I recall in one blog post a while back when he was defending his delayed book release, he claimed  that his research into IP led to him going even deeper, into analyzing the concept of property and property rights.  Exactly a year ago he mentioned his “soon-to-be-released” booklet Why I Am A Libertarian Even Though There Are No Natural Rights.  And more recently in his post on the Ron Paul vs. RonPaul.com fiasco, he states that all rights are “designed.”

I forget exactly which post, but I seem to recall him implying his work was at least to some degree a development of a theory of rights or something to that effect…that essentially his defense of IP was going to be some kind of new understanding of even more basic concepts.

But of course this podcast unequivocally shows Wenzel’s position is nothing even remotely new (surprise, surprise).

With all the dancing around and ad hominem, I’m actually a little surprised Kinsella didn’t just eventually say “Okay Bob, I’m a total idiot.  I’m the sloppiest writer in the world.  Can we hear your case for IP now?”


Overall I find this to be a huge plus for the anti-IP side.  Despite Wenzel’s self-promotion and false blog post title, Kinsella clearly destroys him in every relevant way.  (And yes, I realize it usually happens that people say that for the side they support, no matter what happens, because obviously the whole thing is subjective)…but in this case I think it gets as close to empirical as you can…

Kinsella offers clear arguments and expositions of his points, and actually offers such arguments on the topic of IP (the subject of the debate).  Wenzel does no such thing, he simply picks specific quotes from various authors and reads them out loud, and then fixates on tangential irrelevant details, asking the same question over and over, even after Kinsella gives the answer.  He must have asked the “is the formula scarce” question close to a dozen times, with Kinsella answering directly at least three times, and offering a full explanation twice.  And of course when Kinsella ventures to ask him a simple question, or even to simply define his terms, Wenzel is all “well we’re gonna get there.”

I will grant that Kinsella initially was on the losing in terms of vulgarity, electing to use swear words on multiple occasions, but I wouldn’t go so far as to say he got more angry than Wenzel…as Wenzel made it quite clear he was “pissed”.  It was evident to me Kinsella was just getting fed up, and being of a younger ilk, curse words seemed to be a much more colloquial, conversational part of his lexicon.  (Notice his use of words like “dude” as well.)

But of course, later the tables turned and Wenzel let his tongue fly as well (1:25:14, 1:46:38, 2:04:39)  LOL (Speaking of which, is Wenzel really a Scientologist?)

But as I said, in the areas that matter, I think anyone listening will find Kinsella to have had the superior showing.  I’d like to say he had the superior argument, but Wenzel never really presented one…which I think is the most damning part of all for him.


I’ve determined that Wenzel really is well on his senility journey.  I had my suspicions a couple years ago…but this was just scary.  He honestly just doesn’t seem to have the capacity to actually understand the anti-IP position.  He makes it quite clear especially starting at 2:07:10 that he honestly doesn’t understand not only the basis of the concept of property, but he doesn’t even understand Kinsella’s point about the nature of information.  He literally says that Kinsella’s argument is that if A tells B something, and C finds out, that makes the information “super abundant”, and therefore not scarce, and therefore not property.

It’s insane.

also by John James:

My favorite comment so far:

I thought the debate was funny. Stephan begins with his opening comment regarding IP. Wenzel’s opening statement was used to explore the question, “Am I a worm?”

Stephan defined his terms and explained his position on IP. Wenzel stated his position on IP was based on destroying Stephan, but refused to give up a positive theory.

By the end of the “debate,” Wenzel’s theory of IP had been boiled down to one word: “Rothbard.” I can’t wait for his long-promised book.

“The General Theory of IP”
by Bob Wenzel
copyright 2017 Bob Wenzel
Chapter 1. General Theory
Rothbard, Murray 1


Second favorite:

I know the Drudge formula, and I will share it now.

But first, I must point out that by sharing the Drudge formula, that Wenzel will be crushed and will have to admit the formula is no longer scarce, since I know it. Sharing this knowledge will crush Wenzel.

Now, on to the formula, but first, allow me to gloat in advance over the imminent crushing Wenzel is soon to face! Oh, how sweet it will be to crush Wenzel!

Prepare yourself, as you are about to witness a crushing, the likes of which you’ve never seen, the likes of which you will never see again, so thorough will be this crushing!

I shall crush Wenzel like a bug! Like a whining, sniveling bug, I will crush him. I shall crush him now!

Now, I crush him, but only after I mention one last time how total this crushing will be! And now, on to the crushing.

The formula is simple: you add “HOT” to a blog title full of otherwise generally known information, throw in a few ad hominum attacks to your libertarian-themed tabloid, and delete comments you find disagreeable.

BOOM! Thus ends the most complete crushing of a man in the short but glorious history of the internet. And thus ends the notion that ideas are scarce.

Jagger out.

by Conza88:

The discussion starts off well with intellectual points briefly eluded to by Kinsella… provision of context, defining terms, and indicating assumptions being made…great. Solid intro. Things look promising. Then it’s Bob’s turn… and the debate gets derailed before it’s even begun – with an attempt to address the red herring of how the debate came about… sorry, but who cares? Answer: no-one but Wenzel. Thus commences the side-show.

I had hoped it wasn’t going to end up this way. I must say props to Tucker for being way too classy to respond & get dragged in. Props to Kinsella for ‘going there’, and coming out on top despite all attempts at being dragged down in the face of such incivility. I must say, talk about shooting yourself in the foot. It’d actually have been more beneficial for Wenzel to have remained silent (and be thought a coward / buffoon) than to have spoken up and removed all doubt.

I’ve actually enjoyed Wenzel’s blog for quite some time – until lately where the commentary has become more and more rancorous. I also wonder why there appears to be some kind of emotional attachment to the issue? On a bit of a personal note though, I appreciated when Bob started posting all the Rothbard video snippets I had edited down from the full lectures (an idea to make them more accessible). He then began copying them and hosting them on his own channel.

Obviously I could careless (it’s nothing special), and in fact support their proliferationyes…  but what I am interested in though is how he would justify these actions with his IP “stance”? It seems rather contradictory. Again though this is hard to validate given his actual ‘stance’ is so obscure.

As a quip I’d suggest Wenzel has fallen for one of Rothbard’s sociological laws: “Everybody specializes at what they are worst at (e.g. Friedman, and money).”

Except that Wenzel doesn’t even reach that level – there isn’t any indication of specialization at all.

Furthermore it’s a shame that in all his zealotry Bob inadvertently drags down the names of the people he appeals to. Hoppe is clear as day regarding intellectual property:

Daily Bell: Where do you stand on copyright? Do you believe that intellectual property doesn’t exist as Kinsella has proposed?

Dr. Hans-Hermann Hoppe: I agree with my friend Kinsella, that the idea of intellectual property rights is not just wrong and confused but dangerous. And I have already touched upon why this is so. Ideas – recipes, formulas, statements, arguments, algorithms, theorems, melodies, patterns, rhythms, images, etc. – are certainly goods (insofar as they are good, not bad, recipes, etc.), but they are not scarce goods. Once thought and expressed, they are free, inexhaustible goods. I whistle a melody or write down a poem, you hear the melody or read the poem and reproduce or copy it. In doing so you have not taken anything away from me. I can whistle and write as before. In fact, the entire world can copy me and yet nothing is taken from me. (If I didn’t want anyone to copy my ideas I only have to keep them to myself and never express them.)

Now imagine I had been granted a property right in my melody or poem such that I could prohibit you from copying it or demanding a royalty from you if you do. First: Doesn’t that imply, absurdly, that I, in turn, must pay royalties to the person (or his heirs) who invented whistling and writing, and further on to those, who invented sound-making and language, and so on? Second: In preventing you from or making you pay for whistling my melody or reciting my poem, I am actually made a (partial) owner of you: of your physical body, your vocal chords, your paper, your pencil, etc. because you did not use anything but your own property when you copied me. If you can no longer copy me, then, this means that I, the intellectual property owner, have expropriated you and your “real” property. Which shows: intellectual property rights and real property rights are incompatible, and the promotion of intellectual property must be seen as a most dangerous attack on the idea of “real” property (in scarce goods).

As for Rothbard – we can look back with hindsight regarding his position and adequately criticize… but it pays to remember the times. Given the below I have no doubt Rothbard would have been taken by Kinsella’s & Tucker’s cleaning up of the whole issue… just like when he admitted he was wrong after Hoppe advanced his ‘a priori of argumentation’:

“…Over 30 years I have been preaching to the economics profession that this cannot be done: that economists cannot arrive at any policy conclusions (e.g., that government should do X or should not do Y) strictly from value-free economics. […]

And yet, remarkably and extraordinarily, Hans Hoppe has proven me wrong. He has done it: he has deduced an anarcho-Lockean rights ethic from self-evident axioms. Not only that: he has demonstrated that, just like the action axiom itself, it is impossible to deny or disagree with the anarcho-Lockean rights ethic without falling immediately into self-contradiction and self-refutation….”

As usual Rothbard was ahead of the game back then. The article starts off a tad rough but ends well…
“…Finally, there is the almost incredible harassment of VCR owners. If I buy a VCR and a blank tape, I should be able to tape a movie or other program off my own TV set. If the TV or movie people don’t like it, they should jolly well have to lump it. It is grotesque that movie producers might get the Supreme Court to agree to outlaw use of the VCR. Worse yet is that the movie producers are harassing poor SONY, who only manufactures and doesn’t use VCRs. Obviously, SONY has the deep pockets to enjoin and sue, which most home owners do not. Obviously, too, the government would have a great deal of difficulty mobilizing an enormous Gestapo, armed to the teeth, to break in on and confiscate or destroy the VCRs in many million American homes. Defend your VCRs to the death, fellow Americans! In practice, then, the movie people are not going to outlaw VCRs. They will just force SONY and the other manufacturers to pay a tax to the movie people, a tax which will be passed on to every VCR buyer. But the unfortunate principle—and the higher cost—might well be enshrined in the books.

The problem in all these cases is not whether “property rights” should or should not be upheld. The problem in each of these cases is: Who should have the property right? The computer hacker to do what he wants with his own computer and his access to the telephone lines, or the other computer owner? The signal sender or the signal receiver in the latter’s own equipment? The VCR owner or movie producers? In all of these cases I believe that the concept of copyright has been illegitimately extended to become invasive, and that the fact that the common law cannot combat these “crimes” is already an indication that they are not crimes at all.

But I am in an odd position here. Of all the people in the libertarian movement, I probably know the least about computer technology. There are few movement people lower tech than myself. And yet among all the computer mavens in the movement, I have seen no discussion of these thorny issues. But it is important to apply libertarian property rights theory, i.e. judgments in various areas on who is a criminal and who is a victim, to advancing technology. So on these matters I still have a relatively open mind. Before the Iron Door closes, I cheerfully invite libertarian theorists and high-tech mavens to submit papers, on any or all sides of this problem, for possible publication in the Libertarian Forum. Is there computer crime? Are VCR and satellite dish owners criminals? Please send in your discussions, and help advance libertarian theory.”

—  Murray N. Rothbard, High Tech ‘Crime’: A Call for Papers, The Libertarian Forum, Vol. 17, No. 7-8, July-August, 1983.

Kinsella and Tucker have done just that. Advance libertarian theory. I don’t think it takes any kind of stretch to come to the conclusion that Rothbard would have been persuaded by the new arguments and clarifications of old ones. Especially given sentiment against the Draconian measures suggested / adopted by statist policy makers in trying to clamp down on “intellectual property”. The VCR example is also rather analogous to the music industry and mp3 files re: ripping from radio, online streaming and torrents. “I should be able to tape a movie or other program off my own TV set [computer]. If the TV or movie people [music industry] don’t like it, they should jolly well have to lump it.”

Wenzel’s appeals to authority aren’t even good. I do wonder though how he would respond to the above. Maybe that is the only way he’ll change his tune? In any case: where’s the intellectual honesty at Bob? Hopefully you will bounce back from this with some new found humility and a different take on the issue.


In yet another post, Understanding Scarcity with a Little Help from Ludwig von Mises, Wenzel haplessly attempts to salvage his botched understanding of the scarcity issue. Here is a comment I added, and append here as well (in part, in case the comment does not get approved):

Bob, your analysis is deeply flawed.

Consider your comments about cash flow: this shows that you think a company has a property right in the money owned by potential customers; that is what the dispute is about. But they own their money.

As the quote I provided above from Mises shows, knowledge, information, etc. is not a scarce good, not a scarce means of action. To repeat: from p. 128 of Human Action:

“A thing rendering such unlimited services is, for instance, the knowledge of the causal relation implied. The formula, the recipe that teaches us to prepare coffee, provided it is known, renders unlimited services. It does not lose anything from its capacity to produce, however often it is used; its productive power is inexhaustible; it is therefore not an economic good. Acting man is never faced with a situation in which he must choose between the use-value of a known formula and any other useful thing.”

Recipes, knowledge, information, ideas, Bob, are not economic goods, that is, not scarce means of action. Mises is explicit here, and dead on.

Rather: information, knowledge, recipes play a different role in human action than scarce means do. The latter are rivalrous, scarce resources that can be employed by an actor to causally affect future outcomes so as to achieve some goal of the actor; the knowledge—of possible ends, of how to employ means, etc.—guides the actor’s choice of ends, and means, but is not itself a scarce means.

Mises of course recognizes this, that information is a guide to action and plays a different role than scarce means do in the praxeological structure of human action itself. As he puts it (in my favorite of his books, The Ultimate Foundation of Economic Science:

“Action is purposive conduct. It is not simply behavior, but behavior begot by judgments of value, aiming at a definite end and guided by ideas concerning the suitability or unsuitability of definite means.”

(I discuss this in Intellectual Property and the Structure of Human Action.)

This is uncontroversial among Austrians. See, e.g., Guido Hülsmann’s “Knowledge, Judgment, and the Use of Property,” p. 43-44, stating:

“However, there is still a more fundamental condition of action. This is the fact that knowledge as such is never scarce…. In any case, as conditions do not cease to change, we constantly have to acquire new knowledge if only to conserve our present standard of living. However, economic science does not have to deal with the factors conditioning the acquisition of knowledge. … For the moment we are entirely unconcerned with the creation of knowledge, that is, of judgments that prove to be successful in action. We do not bother about the way we reduce our sheer ignorance. …

“The quantities of means we can dispose of—our property—are always limited. Thus, choice implies that some of our ends must remain unfulfilled. We steadily run the danger of pursuing ends that are less important than the ends that could have been pursued. We have to choose the supposedly most important action, though what we choose is how we use our property. Action means to employ our property in the pursuit of what appears to be the most important ends.

“In choosing the most important action we implicitly select some parts of our technological knowledge for application. In other terms, our choices imply a judgment upon the importance of our technological knowledge under the expected conditions of our action. This economic judgment is our only concern. Technological knowledge as such is immaterial for economics.”

See also Rothbard, in Man, Economy and State, ch. 1, sec. 8:

It might be asserted that another way of increasing his pro­duction is to improve his technical knowledge of how to produce the desired goods—to improve his recipes. A recipe, however, can only set outer limits on his increases in production; the actual increases can be accomplished solely by an increase in the sup­ply of productive factors. Thus, suppose that Robinson Crusoe lands, without equipment, on a desert island. He may be a com­petent engineer and have full knowledge of the necessary proc­esses involved in constructing a mansion for himself. But with­out the necessary supply of factors available, this knowledge could not suffice to construct the mansion.

Notice how it is uncontroversial to these Austrians that knowledge plays a different role in human action than do scarce means. They all recognize that  all action employs means; and all action is guided by knowledge and information (technological knowledge, knowledge of causal laws, recipes, etc.).

Jeff Tucker and I discuss this at some length in Goods, Scarce and Nonscarce. Some of the following is adapted from that:

Austrians have always, if sometimes only implicitly, recognized the existence of the nonscarce good, which is precisely the good in question with regard to intellectual property. Menger’s 1871 book, Principles of Economics, begins with the definition of a good that excludes the concern over scarcity. Something is a good, in Menger’s view, when it is causally capable of satisfying a human need. This is a very broad definition.

For something to be a good, said Menger, there must be human knowledge of this cause-and-effect connection, along with command over the thing (the scarce means, the economic good) so that the relationship between cause and effect can be realized.

Mises recognized the subclass of goods called “free goods” — something that is “available in superfluous abundance which man does not need to economize.” (Human Action, p. 93.) Mises says that though they are “not the object of any action” they are useful and even essential for production. (p. 128) Giving the example of a recipe, he writes that these free goods, or nonscarce goods, render “unlimited services.” A free good “does not lose anything from its capacity to produce however often it is used; its productive power is inexhaustible; it is therefore not an economic good.”

This does not mean knowledge, recipes, nonscarce goods are unimportant: “These designs — the recipes, the formulas, the ideologies — are the primary thing; they transform the original factors — both human and nonhuman — into means.” (p. 142)

Ideas and information are nonscarce goods but they serve as guides to action in the use of scarce means, to transform scarce things in the world to achieve the actor’s desired end. As I noted above, this is why Mises wrote, “Action is purposive conduct. It is not simply behavior, but behavior begot by judgments of value, aiming at a definite end and guided by ideas concerning the suitability or unsuitability of definite means.” [Ultimate Foundation of Economic Science, p. 34 (emphasis added)]

Rothbard elaborated: “There is another unique type of factor of production that is indispensable in every stage of every production process. This is the ‘technological idea’.” [Man, Economy and State, p. 75] Rothbard points out that once the idea comes about, it no longer has to be produced. It is an “unlimited factor of production that never wears out or needs to be economized by human action.”

This is precisely what a nonfinite, nonscarce good, like an idea or knowledge or recipe, is: an unlimited factor of production.

Fetter also glimpses that ideas themselves are nonscarce goods:

The gain to the general welfare, however, can result only when the new inventions are actually embodied in machines. An invention is only an immaterial idea, and the machines in which inventions are incorporated are wealth which has a capital value. Further, a gain can result only when the usance of the machines is not so high as to absorb the larger part of the gain in efficiency. Not all labor-saving inventions call for more elaborate or more costly machines. Some are merely better methods, and require no more equipment — or even less. Some of them are simpler and less costly than the forms they displace. These (unless patented) are free goods, uplifting the efficiency of production “without money and without price.”[22]

I.e. he  recognizes that methods — which are merely recipes, a type of information — are nonscarce goods (he calls them “free goods”) that are freely available and increase efficiency and productivity — that is, unless they are patented, thus making them artificially scarce.


The upshot of all this is that causally efficacious means are real things in the world that help to change what would have been, to achieve the ends sought by the actor. Means are scarce resources. As Mises writes in Human Action,

“Means are necessarily always limited, i.e., scarce with regard to the services for which man wants to use them.”

To have successful action, then, one must have knowledge about causal laws to know which means to employ, and one must have the ability to employ the means causally suitable to help achieve the goal sought. The scarce resources employed as means need to be owned by the actor, because by their nature as scarce resources only one person may use them. Notice, however, that this is not true of the ideas, knowledge and information that guides the choice of means. The actor need not “own” such information, since he can use this information even if thousands of other people also use this information to guide their own actions. As Professor Hoppe has observed, ” in order to have a thought you must have property rights over your body. That doesn’t imply that you own your thoughts. The thoughts can be used by anybody who is capable of understanding them.”

In other words, if some other person is using a given means, I am unable to use that means to accomplish my desired goal. But if some other person is also informed by the same ideas that I have, I am not hindered in acting. This is the reason why it makes no sense for there to be property rights in information.

Material progress is made over time in human society because information is not scarce and can be infinitely multiplied, learned, taught, and built on. The more patterns, recipes, causal laws that are known add to the stock of knowledge available to actors, and acts as a greater and greater wealth multiplier by allowing actors to engage in ever more efficient and productive action. (It is a good thing that ideas are infinitely reproducible, not a bad thing; there is no need to impose artificial scarcity on these things to make them more like scarce resources; see IP and Artificial Scarcity.)

As I wrote in “Intellectual Property and Libertarianism“:

This is not to deny the importance of knowledge, or creation and innovation. Action, in addition to employing scarce owned means, may also be informed by technical knowledge of causal laws or other practical information. To be sure, creation is an important means of increasing wealth. As Hoppe has observed, “One can acquire and increase wealth either through homesteading, production and contractual exchange, or by expropriating and exploiting homesteaders, producers, or contractual exchangers. There are no other ways.” While production or creation may be a means of gaining “wealth,” it is not an independent source of ownership or rights. Production is not the creation of new matter; it is the transformation of things from one form to another — the transformation of things someone already owns, either the producer or someone else.

Granting property rights in scarce resources, but not in ideas, is precisely what is needed to permit successful action as well as societal progress and prosperity.

For more on some of these ideas, see the following articles and posts:  Intellectual Freedom and Learning Versus Patent and Copyright, Ideas are FreeKnowledge is PowerGoods, Scarce and Nonscarce.

One more note. Wenzel repeats a common fallacy. This is the idea that if you can sell something, that implies you own it (a converse fallacy is the idea that if own something, you can sell it—Walter Block relies on this in his defense of body-alienability, as discussed in KOL004 | Interview with Walter Block on Voluntary Slavery). Wenzel relies on the first fallacy in his argument that when you sell information (like the Drudge formula he allegedly has) and receive money for it, this shows that the “thing” you “sold”—the information—has “value” and is an “ownable thing”. After all, how can you trade, or sell, something unless you own it?

This a mistake repeatedly made by libertarians who use imprecise and overly metaphorical language and who have an insufficiently clear understanding of the basics of libertarian property rights and, most importantly, contract theory.  They should review Rothbard’s and Evers’s title-transfer theory of contract, which I elaborate on in A Libertarian Theory of Contract: Title Transfer, Binding Promises, and Inalienability. I discuss this fallacy in that article, where I point out that some contracts are exchanges of title to owned things (an apple for a pear, a dollar for a steak), but some are only one-way title transfers, as when you give someone a gift, or when you bet and thus conditionally transfer money to someone based on some uncertain future condition that serves as the trigger to the title transfer—or when you pay money to someone to induce them to perform some desired action (labor, service, employment, disclosing information). In these latter cases there is only one title transfer: from the owner of the money to the person who performs the desired action the performance of which triggers the transfer of the money. People speak of this as a “sale” of labor or of information, but only by analogy to the traditional bilateral title exchange situation. What they are saying is that the action performed by the “seller” is the desired end of the “buyer”. But the “seller” of “labor” does not literally own his labor or his actions or the information he divulges. Rather, he owns his body and is thus able to decide to engage in or refrain from certain actions, including disclosing private knowledge, and thus he can use this to induce the guy who desires access to the information to conditionally transfer title to some sum of money—conditioned on the performance of some action by the other guy. This is not complicated; in fact it’s very simple. But calling it a “sale” of a service, or information (which is just another way of explaining the object or end the payer desires) makes people think of a standard “sale” where title to money is exchange for title to some owned good, and thus confuses them and muddies the water. For more on this, see my post The “If you own something, that implies that you can sell it; if you sell something, that implies you must own it first” Fallacies. See also KOL 037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory; Lecture 6 of my “Libertarian Legal Theory”  Mises Academy Course, at slide 16; and Lecture 5 of my “Libertarian Controversies” Mises Academy Course, at slide 15.

In addition to my 6-week Mises Academy course, Rethinking Intellectual Property, I also provide a pretty exhaustive refutation of just about every major pro-IP argument in Intellectual Nonsense: Fallacious Arguments for IP.


See Mathew Alexander’s excellent post-mortem in Intellectual Property and the Great “Debate”

From my post in a FaceBook discussion:

Some of my friends have admonished me for the Larouchie comments Wenzel is pretending to go crazy about. I do not disagree that it is possible it was a tactical error to even debate him, or take my approach in continuing to engage him.

But I have not been persuaded that any of my comments to or about him were wrong (though I am open to this). Let me give some context.

Wenzel appeared out of nowhere in 2008–2009 or so. He starts attacking Jeff Tucker and my IP comments—implying we are “communists” etc. Implying he has a “book” on IP coming out (and even a book on libertarian theory). He does this while cozying up to Mises Institute people and people interested in Austrian economics. He sets himself up as a big economic prognosticator, though no one had ever heard of the guy before. Is this even his original name? Where did he come from? No one knows.

So this no-name non-scholar, a kind of loud-mouth crude braggart self-promoting showboat type, more akin to Bill O’Reilly or Morton Downey Jr., starts loudly braying and attacking me and Tucker. It was obvious to me then, and remains obvious now—in fact it’s more obvious now, after our “debate”—that he has no coherent theory of libertarianism or of IP. He could not even present one in our debate, for which he needed 2–3 months to “prepare.” I half-suspect he did it all as a ruse to sell his ridiculous Drudge formula, which is odd in itself that he would want to hawk $100 or $500 sales of a formula that he can only sell a small amount of, all the while claiming to be rich (offering to pay $500k if people can prove he is not a Larouchie) and while claiming to charge $750 per 10 minutes for a phone consultation (that amounts to $4500 per hour. yeahhhh…. right).

The guys is an obvious blowhard, oddball, and loose cannon. A sensationalist, and not an intellectual or scholar.

A few years ago at Mises Institute in Auburn I was sitting alone in the bar, on my iPad. Wenzel walks up to me and the first thing he says is a snarky, snide remark about me using an Apple product—after all I must be a hypocrite if I use a product from a company that uses copyright, right? So I smiled, changed the subject and bought him a drink. We had a long conversation, some nice, some of which he revealed utterly bizarre things that made me question his … perspectives on life, let’s just say (and which I did not mention in our debate, as they are irrelevant).

Then his attacks continue on me and Tucker. He invited Tucker to debate him and Jeff (probalby wisely) declined. Wenzel then makes some rude, smartass comment that Tucker was a dumbass follower of mine but that at least I had a real theory to be contended with. This is a bizarre slight on Tucker, from whom I have learned a lot, but in any case I offered to “discuss” with him this issue. Within an hour he was trumpeting and promoting it though we had not worked out ground rules yet, and he was asking for a month or two. I guess, to prepare.

So the guy is some outsider, a nobody, spoiling for a fight, looking for traffic. A blustering clown, really. In response to some queries abou this on FB I said what I think (I never mince words): that he would weasel out of the debate like a worm, and that he was a clown. If you listen to his interviews you’ll see what I mean. He is untalented, rude, and a hack. He is a clown. And as for the weasel comment—partly I did that so he could not back down. In any case, in the end he did as I predicted—he weaseled out of presenting a real case for IP or having a real debate about it by wasting time asking why he is a clown; in our “debate” he never did present a coherent view of IP and even today is still grasping for some coherent theory.

Honestly it’s curious why he would even want a “debate.” Why would he debate me if he had no theory? Why would he even care? Why would he be certain that I am wrong? To get attention, obviously. Which he almost admits in subsequent posts bragging about how the debate increased his traffic. This guy is an unscholarly, crude oaf. He has the temerity to cozy up to the Mises Institute and then start attackin me and Jeff Tucker (and implicitly all the senior scholars and other Austro-libertarians who have learned what a horrible thing IP is) and now even the Institute’s leading intellectual and Rothbard’s closest intellectual associate, Hans-Hermann Hoppe—and in the name of Rothbard, to make it worse. In our debate Wenzel violated our pre-agreed upon rules; he was incivil; he did not give me equal time; he talked over me repeatedly; he evaded the issues and failed to answer questions and present a coherent case for IP.

I gave this guys a long leash. I was polite to him. I ignored his earlier slights. I bought him a drink, and talked with him in person. I agreed to a discussion about IP with him, on the terms that we have a civil discussion as equals—not his normal clownish, amateur, embarrassingly oafish “interview” style (read: interrogation). He promoted it to high heaven, then was rude and blustery and loud and ridiculous. He covered up his intellectual and scholarly deficiencies with ridiculous bluster and outrageous rudeness. In response I sometimes laughed in bemusement, in utter amazement that a specimen like him even exists in the real world.  And I sometimes mocked him, and toyed with him, since every time I tried to make a serious point I was met with his bizarre bluster and intellectual incompetence. Was it a tactical mistake to engage this mental troll? I don’t know. Was it immoral to mock him and not treat him with respect? I don’t think so. Does he deserve respect? This guy attacked me, Tucker, now Hoppe, and libertarianism itself (by promoting IP). It is rich that he plays the poor victim after engaging in this outrageous stuff.

In any case: he has not (and cannot) demonstrated that IP in any form can be justified.

I am actually surprised any Austro-libertarians take this guy seriously. I never have. No one I know that I respect ever has.


For background information on the views I expressed in the podcast, see:

For posts related to/leading up to this debate, see:

  1. Note: I failed to record the audio at my end until 1:07:10, but my audio quality was better. So I spliced in the better second half from my recording. So starting at 1:07:10 you can hear better audio quality at my end, and no worse at Wenzel’s. []
{ 223 comments… add one }
  • Andy Cleary April 1, 2013, 8:41 pm

    That sounds… excruciating.

  • Ivan April 1, 2013, 9:13 pm

    I listened for about 40 minutes and had to stop because I could not stand Wenzel anymore yelling and screaming all the time: “you pissed me off, you are sloppy, I am gonna crush you, I am gonna destroy you,” and similar childish nonsense without a single reasonable argument or statement. I think he repeated at least 10 times for those 40 minutes how he would “destroy” Kinsella. It became obvious to me that the guy was a total nut-job and I was wondering why Kinsella would waste his time with him.

  • Joel April 1, 2013, 9:19 pm

    Not enjoyable? This was hilarious!

  • Jesse April 1, 2013, 9:34 pm

    I got about 15 minutes in and quit. It seemed waaaay too personal for Robert. I think he is a brilliant man, but one of his flaws seems to be that he attaches his ego to the positions he holds.

  • Stephen April 1, 2013, 9:56 pm

    I have no idea what Wenzel’s “theory” of IP even is. He didn’t define any terms. He didn’t present any coherent arguments. He acted like a petulant child, interrupting and raising his voice, and that’s it. He couldn’t comprehend the simple things Kinsella was saying about utilitarianism failing on its own terms, about the definition of scarcity, about Rothbard’s “copyright” ideas, and so much more. This was unbelievably painful to listen to and Wenzel came out looking like a total moron. Props to Kinsella for maintaining his composure as well as he did. Wenzel really lives in fantasyland if he thinks he “crushed” Kinsella. Seriously, no rational person could listen to this and not feel pathetically embarrassed for Wenzel. I’m still having a hard time believing this transpired. Wenzel’s reputation is going to be seriously diminished.

    • Misesian April 1, 2013, 11:26 pm

      Completely agree. More succinctly put than my post below. Bloody awful stuff from Wenzel.

      Weeks ago, I actually thought his attacks were devil’s-advocate PR to hype the show. I couldn’t believe he was actually serious about his poorly thought out IP views.

      “I’m still having a hard time believing this transpired. Wenzel’s reputation is going to be seriously diminished.”

      Couldn’t agree more …

      • Stephen April 2, 2013, 11:26 pm

        I too gave him the benefit of the doubt. I didn’t think he stood a chance against Stephan, but I at least entertained the idea that maybe, just maybe he had come up with a novel argument in favor of IP. But no, Stephan was right: Wenzel weaseled out of the debate, since he did not actually present a single argument.

        I’m being completely fair here: he claimed that Stephan didn’t understand Rothbard’s views on “copyright,” and Stephan explained that Rothbard was talking about a contractual system (and he was confused because he thought copyright applied to a mouse trap, and he denied defamation rights) and not a State system (as though this was relevant to whether IP is legitimate); he claimed that Stephan didn’t read Boldrin and Levine’s paper and that he was contradicting himself by saying that he believed in a priori truths (Wenzel was not smart enough to use this terminology) while quoting utilitarians in support of his arguments, when clearly Stephan fully understood Boldrin and Levine and was simply stating that utilitarian arguments for IP fail on their own terms; he simply asserted that his Drudge formula is scarce, despite Stephan’s explanation of what scarcity means in economics: rivalrousness. Beyond that, he simply stated that Stephan was a sloppy thinker, a sloppy writer, and that he had dangerous ideas that needed to be destroyed, all without saying anything in support of his comments. He repeatedly engaged in appeals to authority, equivocation, and begging the question and looked like a total idiot for denying that he was doing so.

        It was a truly unbelievable performance and Wenzel has some serious backpedaling to do.

        • Misesian April 3, 2013, 10:51 am

          Once again, Stephen, I’m in complete agreement with you!

          And of course, there are so many other things far too numerous to detail. Even on the personal front it’s clear, from the links Stephan provided to the original exchanges on Wenzel’s site, that Wenzel was the one who stirred things up in rude fashion with Jeff Tucker as well as Stephan.

          Also clear is that Tucker and Kinsella only care about the truth. Stephan gives as good as he gets on the barbs but he says repeatedly from the beginning of the debate that he only cares about the issue of IP as Wenzel continues his pathetic attempt to “destroy” him. Tucker, on the other hand, apologizes (back in 2009) merely for using the word “bullshit” and gently urges Wenzel to read Against Intellectual Property. So Tucker takes the high road and then stops engaging further when he sees that Wenzel is a provocateur who refuses to grapple with the literature. Kinsella takes the other route of fencing with Wenzel in order to get him to deal with the literature. They both fail as Wenzel is apparently incorrigible.

          You’re quite right about his “weazel” preformance. I think Stephan was correct in his incidental (i.e. incidental to the issue of IP) comment that Wenzel was likely to back out of the debate. I think Wenzel only made the debate because he though it would have looked bad to back out a second time. But you’re right that, in effect, he backed out of the debate by making it about “destroying” Stephan and Jeff Tucker and not presenting a single argument from the book he’s been working on for four years.

          On his blog, he now says he’ll respond to a two paragraph quote from Hoppe, from a few years ago, explaining his anti-IP position. “Later this week” he says. Seriously? He sounds like a student cramming for a final he’s thoroughly unprepared for.

          I could go on as I’m sure you could too! Suffice it to say, Wenzel is out of his depth. Intellectually, Stephan is debating a child. No contest. Actually, as you said above, there’s no debate.

  • Brent April 1, 2013, 10:29 pm

    This went exactly as I expected (minus the expected attacks on Jeff Tucker). Wenzel is just terribly confused about this (and apparently it is personal — like his bizarre obsession with Jeff Tucker). He’s just wrong in everyway.

    However, listen to his last interview with John Mackey. Mackey = Wenzel in the last debate.

    On another note, Wenzel’s interview style is less than effective most of the time, though occasionally refreshing because he has a lot of guests promoting stupid ideas who deserve to be incessantly badgered.

  • Nick April 1, 2013, 10:34 pm

    I thought the debate was funny. Stephan begins with his opening comment regarding IP. Wenzel’s opening statement was used to explore the question, “Am I a worm?”

    Stephan defined his terms and explained his position on IP. Wenzel stated his position on IP was based on destroying Stephan, but refused to give up a positive theory.

    By the end of the “debate,” Wenzel’s theory of IP had been boiled down to one word: “Rothbard.” I can’t wait for his long-promised book.

    “The General Theory of IP”
    by Bob Wenzel
    copyright 2017 Bob Wenzel
    Chapter 1. General Theory
    Rothbard, Murray 1

    • Misesian April 1, 2013, 11:57 pm

      “copyright 2017”. Lol!

    • Nick April 2, 2013, 12:08 pm

      I’ve independently discovered the secret formula of Wenzelian Argumentation. I’m posting it here, although this may take away Wenzel’s income from selling his system to B, who would sell it to C.

      Opening Statement Appeal to Insecurity – “Am I a worm? What about a weasel? Why did you call me a clown? You were nice to me once.”
      Intimidate (repeat often) – “I’m trying to destroy you!” Swear. Yell.
      Appeal to Authority – “I agree with Rothbard. You don’t understand Rothbard!”
      Interrupt (use opponent’s name) – “STEPH-an! Stephan, wait! Nonono, Stephan!”
      Ignore Arguments/Refuse to Answer Questions – “…I don’t want to get into that.”
      Mysticism/Gnosticism – “My secret IP position will manifest itself in the process of destroying you! Thesis: Wenzel. Antithesis: Kinsella. Synthesis: IP justification.”
      Declare Victory.

      • Mark Baumann April 2, 2013, 6:32 pm

        Don’t forget, “uh, uhhh, what? I didn’t hear what you said because I was researching my last statement while you were talking…”

        • Nick April 2, 2013, 7:27 pm

          Wait, so you’re improving on my Wenzelian Argumentation formula? You have damaged me, sir, and I demand restitution for taking my idea that I “have” and moving the supply curve for Wenzelian Argumentation formulas!

          But sure, let’s add your idea to the list, although that sounds like dangerously seditious incrementalism… not how scarce ideas work at all…

          Research Next Attack Point/Name Drop Opportunity While Opponent Speaks (remember: Ignore Arguments/Refuse to Answer Questions) — “Uhh, what? Here’s the quote from Rothbard! [Quote Rothbard paraphrasing Mises summarizing Hoppe.]”

  • D Lind April 1, 2013, 10:37 pm

    Objectivists have their Peter Schwartz, Libertarians their Robert Wenzel.

  • Stephen April 1, 2013, 11:08 pm

    I can’t imagine having less respect for an “intellectual” than I do for this guy based on this embarrassing exchange. Not knowing anything else about him, I have a hard time believing he’s a libertarian at all. His thinking is muddled and he doesn’t seem to know how to debate. He’s highly emotional and more interested in seeking revenge for getting his feelings hurt than arriving at the truth. He talks like Walter Block but thinks like Nancy Pelosi.

    In fact, this was so awful I feel like it’s an elaborate April fool’s joke.

  • Misesian April 1, 2013, 11:14 pm


    Well summarized. I’m a regular reader of Wenzel’s blog although I was a prior Mises Institute fan in agreement with your anti-IP work. I didn’t expect much from the debate other than to get some insight into Wenzel’s bizarre hostility to the anti-IP position (beyond his personal animus towards you).

    I’m usually entertained by Wenzel but I stopped listening to the debate after an hour. He was belligerent from the beginning and totally without substance on IP as you describe above. Bloody, bloody awful.

    One further thing. He was incorrect about your description of Rothbard’s IP position in your introduction to Against Intellectual Property. At best he could argue that you should have said “Rothbard was against patents but for his (I will argue) confused conception of copyright”. But your characterization is not a miss as you later fully detail your criticisms of Rothbard’s position. Rothbard was certainly against patents and you were correct about his mousetrap example in Ethics of Liberty being a patent issue incorrectly advanced as a copyright issue.

    But you really say it best above. It’s unbelievable he and some of his supporters characterized the debate as “Kinsella crushed”. I wonder about their familiarity with basic logic.

    I should have known how the debate would turn out when Wenzel couldn’t advance a single argument for IP after the first half hour. Instead he claimed he wanted to “destroy” you (and failed utterly).

    I’m now done with giving Wenzel the benefit of the doubt in terms having a thought out (if incorrect) position on IP. He clearly does not. He’s confused and thoroughly incorrect on this issue.

    Well done and well argued Stephan.

    • Stephan Kinsella April 3, 2013, 8:04 am

      Thanks. Here is what I think happened: like a lot of libertarians who had not thought about the issue, he had a sort of default pro-IP position but didn’t have it worked out in his mind. Then he hears me and Tucker arguing against it, and starts the same old lame old “that’s communist” (probably thinking in utilitarian terms that there would be no incentive to innovate, etc.; or maybe b/c he started wondering how he could sell his Drudge formula in our IP-free world). So he figures: hey, these guys are Rothbardians and associated with the Rothbard-loving Mises Institute, so I’m “safe” in citing Rothbard against them. So he just echoed Rothbard’s contractual-copyright musings without elaborating or even realizing it’s incomplete and inconsistent. And now he’s stuck defending it.

  • Dustin April 2, 2013, 12:05 am

    After having that much fun, I just wanted to let you know that your 2.5 hours weren’t *totally* wasted. I am an avid reader of EPJ and think it is a great site to keep up on the latest movements of our common enemy: the State. However, I am utterly repulsed by RW’s “interview” style; and normally cannot bear to listen to his show (the exception being when he has some guests on that deserve to be treated like morons *cough*Coulter*cough*). However, I was persuaded to tune into this debate based on the interesting topic and the fact that I haven’t really spent much time (yet) thinking about this issue. Despite the fact that it wasn’t the best format to get your argument across clearly, you have given me much to mull over and at first digestion, your position makes a lot of sense to me.

    P.S. Huge props for being able to keep your cool as well as you did. You couldn’t resist a couple potshots back at him, but all-in-all an impressive show of restraint.

  • Dan Bonin April 2, 2013, 12:20 am

    Thoughts on the “debate”:

    The conduct of both of you, but uber-especially Wenzel, was nearly unbearable. To be fair though, I would have hung up almost immediately and never would have made it to the snarky comments two hours in. As an aside, your snarky comments were hilarious, but obviously they aren’t part of civilized discourse.

    Wenzel brought basically nothing to the debate except for contract theory, which is already a thing, and an assertion that ideas are exactly like cars (except that stolen cars have to be returned but ideas don’t for some reason). He gave away the entire debate twice (you caught the second one) by agreeing that third parties and independent discovery shouldn’t be covered.

    Also, watch out next time you’re around each other because he made like half a dozen references to grabbing your balls.

    I think your characterization of Wenzel above is excellent. I’ve struggled to articulate what’s so off putting about him and liked your phrases ” bizarre appeal to authority” and “does not know how to engage in subtle discussion” as descriptors of his general style.

    I was astonished that he was unable to understand the simple concept of scarce or rivalrous and that he didn’t realize that he was just asserting his claim as true with no backing. I knew going in that Wenzel is a crude unpleasant communicator, but I had been under the impression that he was also deeply knowledgeable in these areas. He was clearly just pursuing a petty vendetta and had know interest in IP theory. It’s interesting and telling that you were a serious thinker before you insulted him and a sloppy one afterwards.

    • Crosbie Fitch April 2, 2013, 3:29 am

      “That he was unable to understand the simple concept of scarce or rivalrous” is not something I’d hold against him.

      These ‘simple’ concepts do not aid in understanding at all, but cause confusion.

      One has to engage in doublethink in order to apply these concepts, i.e. to admit a concept of property in the abstract plane in order to argue against it on a utilitarian basis.

      Human beings are natural beings with natural powers. We can physically exclude others from the spaces we inhabit and objects we possess in the real plane, but we have no powers in the abstract plane – such powers would be supernatural (even if church or state pretends the ability to grant them despite this).

      We can only claim property in those things that physically exist in this universe, not their infinite and non-rivalrous simulacra in an imagined abstract universe.

      ‘Scarcity’ and ‘rivalrous’ are vacuous concepts in the IP debate.

      • Stephen April 2, 2013, 9:00 am

        Crosbie, scarcity is a necessary condition for the development of the concept of property, so it’s very relevant to the question “is intellectual property legitimate?”

        • Crosbie Fitch April 2, 2013, 9:42 am

          Scarcity is not a necessary condition, except perhaps in a utilitarian’s idea of how society should be engineered.

          That individuals have the physical power (in equal measure=right) to exclude others from the spaces they inhabit and the objects they possess is quite sufficient to recognise the concept of property.

          An individual does not need to engage in esoteric debate as to whether the item they have in their physical possession is scarce or non-scarce prior to defending it against the claims of utilitarians.

          If I have a phial of seawater in my pocket, I don’t give a damn how non-scarce you may argue it is – it’s my property.

          Or perhaps you use ‘scarcity’ as a (rather peculiar) way of distinguishing between real objects and abstract objects? That real objects are finite, but abstract objects are not? This violates Occam’s Razor. Why introduce the concept of abstract objects in order to utilise a peculiar means of arguing that they cannot be property because they are infinite? The abstract doesn’t exist full stop. There’s no point in even introducing it into the IP debate. It’s like accepting the notion of angels in order to argue there is no limit to how many will fit on a pin, ipso facto angels aren’t solid. Eh?

          • Stephen April 2, 2013, 11:22 am

            Crosbie, can you please explain how the concept of property could emerge in a situation of non-scarcity? Your example of people excluding others from the spaces they inhabit and the objects they possess assumes a situation of scarcity.

            If all goods were superabundant, meaning that use by any one person for any one purpose would not in any way exclude (or interfere with or restrict) use by any other person or for any other purpose, then there would be no need for property.

            Property is a normative concept designed to make a conflict-free interaction possible by stipulating mutually binding rules of conduct (norms) regarding scarce resources.

      • Ed Ucation April 2, 2013, 12:22 pm

        I am new to the concept of rivalrousness, but it seems to me that something can be rivalrous without being scarce. We have all seen something like this. Imagine two identical toys, yet a first kid will fight with a second kid for a first one of the toys, simply because the second kid is in possession of it, while the second one of the toys will remain ignored. Can someone clarify this for me? It appears the classes “scarce” and “rivalrous” are intersecting sets with non-empty excepts.

        • Thymologist April 2, 2013, 3:05 pm

          But the toys aren’t really identical: they exist separately in space. So each toy, in itself, is scarce, even if that type of toy is not, in this instance. Yet the type of toy is not the relevant level of analysis, the token is (as philosophers say)- and we know this because there is actual dispute over it. In some sense, we might say that the first child playing with the toy is what changes it into a sufficiently different good to generate such a state of affairs. (The resolution to the water-diamond paradox is effectively analogous. Additionally, one may wish to consult the argument between Hoppe and Block on indifference for more insight on this general problem, i.e. that of what defines a unit of a good.) Fitch makes a similar mistake concerning seawater. The water in his pocket is a different good from the water in the ocean, even though they are chemically identical. The key differences are spatial location and arrangement (in this case into a vial). He is also quite wrong about Occam’s Razor and the nature of abstract objects. The Razor is a rule of thumb and is of dubious relevance here. Abstract objects certainly do, in some sense, exist. And using finitude as a criterion of separation is perfectly reasonable. One need not be a Meinongian to hold these views, though this view is still current in philosophy (see the works of Edward Zalta for example).

          • Ed Ucation April 2, 2013, 8:50 pm

            @ Thymologist: According to your requirement, that objects that exist separately in space are scarce, everything is scarce, making the concept meaningless, because it does not separate the universe into scarce and non-scarce object classes.

            I have a similar problem with your concept of what makes one good different from another good. According to this view, every entity, and even different parts of the same entity, is a different good, making the concept meaningless.

            Thanks for the nudge to check out the Hoppe-Block indifference debate. Hoppe-Block debates are the best! However, the most recent reply I found was from Block in 2009, which leaves the question far from settled.

          • Thymologist April 3, 2013, 3:35 am

            @ Ed Ucation

            I did not intend for extension to be the only requirement of scarcity, though I suppose I probably gave that impression. Minimally, something must be desired as well. Additionally, it isn’t quite true that the concept of scarcity is meaningless under that framework – there are at least two kinds of things in the universe: scarce physical objects and non-scarce abstract concepts (regardless of the fact that their instantiation may well be physical).

            That being said, we should at least have a few more classes: scarce physical, non-scarce physical, scarce conceptual, non-scarce conceptual. Scarce physical objects are the normal sort. Non-scarce physical objects are what are referred to as the background conditions of nature, typically the example is air. That is, there is no need to economize on these. Further, scarce physical objects can be rivalrous or non-rivalrous. Rivalrous objects are one-at-a-time use (or something like that – this is obviously a loose statement of the idea). Non-rivalrous objects can be used by many without the need to exclude. That is, we must economize on them initially, but the cost of a further person using them is zero. Ultimately, of course, all scarce physical goods are rivalrous – there really is a finite number of people who can fit in a given movie theatre simultaneously, or private parks, or in a room with a TV (as you mention below). Two of these non-rivalrous goods are actually two different complementary goods: the TV and the TV show, for example. The TV is rivalrous – only so many can watch at once. The TV show (like an idea, concept, recipe, arrangement, etc.) is itself non-rivalrous. But a TV broadcast is just a pattern – we can all simultaneously watch the same TV show on our own TVs without precluding each other from watching. It seems then that there is not actually anything that fits a non-rivalrous scarce physical good, at least in potentia. That is, a good may not be utilized up to a point of rivalry – in which case the demand is far lower than the supply, so we do not need to economize. Similarly, there is no such thing as a non-scarce rivalrous physical good – as soon as we begin to exclude each other in its use, it enters the domain of things we economize on, i.e. becomes scarce.

            The question then moves to conceptual goods. Are there any rivalrous conceptual goods? No. We can both think the same thought, know the same pattern, etc without excluding each other. So conceptual goods are only non-rivalrous – which leads us to wonder if conceptual goods are scarce. Clearly they are not: there is no need to economize on them -for either they are unwanted (like a song stuck in your head) or non-rivalrous.

            As for differentiating objects: the view you attribute to me is correct, but missing one thing. Not all of these subdivided entities are goods – they do not in the main enter the realm of human action so possess no status as a good/means. Only when we act with regard to that entity does it become a good. So a part of a toy is rarely considered separately from the rest of the toy until the toy is broken: then we conceive of the toy as, at least, a broken toy with X part broken. We then economize on the part – either replacing it, or opting not to.

            I apologize for the length and admit that this is merely a blog post, not a technically sophisticated essay, so there are bound to be some errors/loose statements. It may be worth checking out Hoppe on public goods – some of the discussion is similar and his paper is more rigorous than my comment.

          • Stephan Kinsella April 3, 2013, 9:04 am

            Excellent stuff. Crosbie is just wrong that the vial of seawater is not a “scarce” object in the economic sense. He is here wrongly assuming that scarce means “not abundant.” Rather, it means rivalrous. Each particular instance of a hugely-abundant set is a particular, unique, ownable “scarce” (rivalrous, contestable) resource, or means of action, since two people cannot use by its nature.

          • Crosbie Fitch April 3, 2013, 4:17 pm

            So, as Stephan confirms, sea water is not superabundant, is scarce and is rivalrous.

            It is no wonder that only the elite can digest the concept of scarcity and find it wholesome. The layman and supporter of state granted monopolies cannot be faulted for rejecting it as vacuous – nor can any libertarian.

            So, what is there on this planet that is superabundant (if not seawater), non-scarce (if not seawater), or non-rivalrous?

            By a process of elimination, one must conclude that those things that are superabundant, non-scarce, and non-rivalrous are abstract objects, i.e. angels on the head of a pin.

            You cannot justify property by inventing non-existent objects and saying that because they cannot be property, this is why property is justified.

            And then we have Thymologist asserting that “Abstract objects certainly do, in some sense, exist”, which is as crazy as saying that “Angels certainly do, in some sense, exist”.

            It is the monopolists who are brainwashing people into believing in abstractions as property. It is ridiculous for libertarians to support this belief in the existence of abstractions simply in order to use vacuous concepts of scarcity and non-rivalrousness against the argument that abstractions can be property.

            It’s about as crazy as members of the free software movement supporting copyright in order that they can use it to restore people’s freedom.

            Property is both alienable and that which the individual can physically exclude others from.

            The concepts of scarcity or rivalry are not needed by natural rights libertarianism, nor, more critically, are they useful to explain to the layman (or monopolist) why state granted monopolies are abominations.

          • Thymologist April 4, 2013, 12:07 am

            Mr. Fitch:

            I am not saying angels exist, but rather that the concept of angels exists. This should be non-controversial. It would be impossible to say anything at all about angels if there were no concept ‘angels’. I refer you to the various Wikipedia pages on ‘use-mention’, ‘type-token’ and ‘abstract and concrete’. They may clarify some things.

            And seawater as a class being non-scarce does not mean any particular unit of it is (as Mr. Kinsella pointed out). Think about light. Light is non-scarce during the day and above-ground, but if you are in, say, a cave, the situation is different. Light then becomes a scarce good, similarly with respect to light at night. It is not only the intrinsic properties of a thing, but our subjective valuations of it that make it scarce.

          • Crosbie Fitch April 4, 2013, 3:05 am

            So, Thymologist, angels exist because the concept of an angel exists?

            No doubt God exists because the concept of God exists?

            So, ‘superabundant’ doesn’t mean abundant, ‘scarce’ doesn’t mean scarce, and ‘exist’ doesn’t mean exist?

            As I have said, it is not helpful to use esoteric definitions of words in the IP debate, nor esoteric/vacuous concepts such as rivalrousness – given extreme difficulty if not impossibility of finding anything that exists (physically, not abstractly) that is non-rivalrous.

            It’s bad enough that ‘property’ has been redefined to mean ‘A state granted monopoly, or if not so abridged, natural property’, and that ‘right’ has been redefined to mean ‘a power granted by the state, or, if not so abridged, a natural right’.

            Orwell was right. If you can redefine the language you can get away with anything.

            However, this redefinition of language and esoteric usage is a ploy for the likes of the state, not for those hoping to enlighten the people from the state’s shackles upon them.

            You cannot propertise the triangle, not because it is superabundant, non-scarce, or non-rivalrous, but because it doesn’t exist. It’s an abstract/mathematical concept. We may well represent the triangle in drawings or furniture, but this doesn’t cause the triangle to exist, just as drawing a picture of an angel doesn’t cause an angel to exist.

            I suspect there’s a heck of a lot superstition at the root of popular support for copyright. It’s the religious schism/war of the 21st century.

            If you hope to debunk crazy notions of abstract objects being treatable as property, then you’ve got to rid yourself of the superstition that abstract objects exist in the first place (and that includes ridding yourself of the notion that ‘exist’ includes ‘in one’s imagination’).

        • Paul Edwards April 2, 2013, 5:01 pm

          Hi Ed,

          The answer is two part:

          “I am new to the concept of rivalrousness, but it seems to me that something can be rivalrous without being scarce. We have all seen something like this. Imagine two identical toys, yet a first kid will fight with a second kid for a first one of the toys, simply because the second kid is in possession of it, while the second one of the toys will remain ignored.”

          I have personally not seen this, but if the two (or two hundred) toys are indeed identical, then the second kid will have no reason to fight with the first over any particular one.

          Note that if the first kid wants to fight, he does not need a superabundant toy as an excuse. Maybe he just wants to harm another body. But note that it is only because bodies themselves are not superabundant, and not disposable, that we fight over and defend and claim property in them.

          “Can someone clarify this for me? It appears the classes “scarce” and “rivalrous” are intersecting sets with non-empty excepts.”

          I think any scarce good is rivalrous.

          • Ed Ucation April 2, 2013, 9:02 pm

            @ Paul Edwards:
            I guarantee to you that this kind of stuff happens. The second kid wants the toy simply because the first kid has it. The second kid does not want to fight per se (e.g., he would be happy to steal the toy without a fight), he simply wants the toy. He may realize that he wants it only because the first kid has it, or he may be unaware as to why he wants it. He is simply acting to remove a sense of unease about the toy.

            “I think any scarce good is rivalrous.”

            This is clearly not true. All I have to show is one unique good that no one else wants during a particular period of time. Take, for example, my booger. I can be pretty sure it is unique, I want to examine it for a few seconds (hence it has utility for me and thus I view it as a good), and I can be pretty sure no one else in the world will express a preference for it.

            I believe I have shown that there are serious problems with the terms “scarce” and “rivalrous,” as they are being used in this debate.

          • Ed Ucation April 3, 2013, 12:07 am

            This is an update to my reply below, where I gave the example of a booger. Turns out, wikipedia has a page on economic rivalry, where a rivalrous good is defined as a good whose consumption by one consumer prevents simultaneous consumption by other consumers. Examples of non-rivalrous goods are given as cinemas, private parks, and satellite television.

      • Scott R April 3, 2013, 7:11 am

        Crosby, I like the point you make. To restate it first:

        “We can only claim property in those things that physically exist in this universe, not their infinite and non-rivalrous simulacra in an imagined abstract universe.”

        Kinsella introduces the concept of “scarcity” into the argument, but Wenzel (like the layman) interprets that with a more common definition of the word. An idea I dreamed up all by myself that no one else could have possibly ever thought of is unique and, therefore, scarce (by Wenzel and the layman’s definition). Kinsella then must educate Wenzel (and the layman) about why scarce doesn’t really mean what he thinks it means. This serves as an obstacle.

        On the other hand, it’s going to be much easier to convince the layman that “property” can only be physical, tangible things, since that already seems like common sense to most people. You then tell the layman that “Intellectual Property” is a misnomer, and to even use the term is to grant it some validity.

        • Scott R April 3, 2013, 7:30 am

          Along the lines of my last point, “rivalrous” would be another term that will be an obstacle for the layman. Kinsella can say that an idea is not rivalrous (by the economic definition), but the layman considers the great idea that he dreamed up to be his and if you take it and do something with it, he may become upset and the concept of rivalry enters the picture.

          As with “scarcity”, I do not disagree that Kinsella’s use of these terms may be the more correct ones; I’m simply stating that they may serve as obstacles in convincing the layman. Even if you clearly define the terms up front, the listener will bring their own prior definitions with them and it will color how they interpret your arguments.

          Could we perhaps just dumb everything down a bit and use a term like “single-use” or something else that will easily encapsulate the intent without confusing the layman (and Wenzel)?

    • Stephan Kinsella April 3, 2013, 8:06 am

      “The conduct of both of you, but uber-especially Wenzel, was nearly unbearable. To be fair though, I would have hung up almost immediately and never would have made it to the snarky comments two hours in. As an aside, your snarky comments were hilarious, but obviously they aren’t part of civilized discourse.”

      Fair enough!

  • Brian Drake April 2, 2013, 4:41 am

    It’s easy to armchair quarterback….and fun too.

    I’m at 1:29:00 so far (it’s a chore) and one thing I really wish Kinsella would do is address the clear equivocation that could be so easily put to rest (not Wenzel, he’s out of control, but the false understanding):

    The reason Kinsella quoted Hoppe was to demonstrate that in a contstruct of super-abundance of physical items, the concept of rivalrousness makes no sense because you can always get another banana instantly. However, that is not to tie the concept of super-abundance to the concept of scarcity.

    Wenzel kept hammering this idea that if the quantity of an item is low, it is scarce. This was clearly not the definition that Kinsella employed. But rather than directly correct this difference in definitions, Kinsella just ignored it (so far at 1:29:00 into it). Now, I understand that Kinsella probably felt like correction would be futile, yet he did do this with the circular reasoning comments. But also, I think a good debator recognizes that most often, the intended recipient of a comment should be the audience, not the opponent.

    No, I think anyone who is honest and informed knows that Wenzel was using a different definition of “scarce”, but consider there could be honest, just not as informed spectators who were confused since the “only I have the Drudge formula” clearly fits “scarce” if “scarce” purely is a reference to quantity.

    • Crosbie Fitch April 2, 2013, 5:43 am

      Yes, Brian, this ‘scarcity’ concept is esoteric (as is ‘rivalry’).

      It may be a fun ploy for the elite to use against their opponents (allowing the Emperor to show off their new clothes to the audience), but it is not valid argument. Wenzel was right to ridicule this esoteric approach – along with ‘superabundance’.

      So, because Wenzel’s formula, locked in his desk drawer, could potentially be superabundant/non-scarce, it can’t be his property? Talk about non-sequiturs. This ploy doesn’t work on me, and it won’t work on Wenzel nor his audience.

      The argument against state granted monopolies is that they abridge the liberty of those who have been given writings or designs, or who independently arrive at them. And no, one’s liberty to make copies or communicate them cannot be surrendered in a contract either.

      As Stephan says (1:20) “FORGET SCARCITY!”

      Focus on the real world, not the abstract.

      • Brian Drake April 2, 2013, 11:33 am


        Scarcity, by the definition Kinsella and Hoppe employ, doesn’t have anything to do with quantity nor is it “esoteric”. The fact that you assert any property (phial of seawater, pocket) is an admission to the concept. You recognize that other people cannot utilize the same scarce resource at the same time as you. This is what “rivalrous” refers to; the real world potential for conflict. When you recognize that two people can’t occupy the same standing space, you’re admitting that the standing space is limited to being used by only one person at a time. This is reality. It’s not esoteric.

        Individual atoms are scarce (rivalrous). 2 people cannot both utilize the same atom (when they have different desires for its use) at the same time. This is where the “super-abundance” concept comes into play. Though atoms are still technically rivalrous, their super-abundance makes the likelihood (not the possibility) of actual conflict basically zero. You don’t like how I’m using this specific atom? There are so many others for you to use that there is no real incentive for you to fight me over an atom. Breathable air generally falls into this category. This “super-abundance” recognition isn’t part of the definition of scarcity (rivalrousness), it’s just that it’s pointless to actually conflict over super-abundant scarce resources (scarce, in this definition, does NOT refer to quantity).

        Calling it esoteric is nonsense. Conflict is real. Putting a name to the properties of reality that make conflict possible isn’t abstract.

        • Crosbie Fitch April 3, 2013, 3:43 am

          Superabundance and rivalry are esoteric and vacuous concepts. Using them to describe a world that doesn’t exist doesn’t help explain the world we live in, e.g. “We’re not telepathic, and so that’s why we need speech”.

          A dog does not imagine an alternate universe in which bones are superabundant in order to justify its claim upon its bone to other dogs. It simply has the power to exclude others, and has evolved this in its own interest. All dogs are largely in equilibrium in terms of individual power, but resolve imbalance through conflict. We simply observe that in equilibrium/harmony (and a consequent lack of conflict) this power is equal – hence a natural right.

          That’s why bones or anything else is property. Not because they’re ‘rivalrous’, or ‘not superabundant’, but because living beings have the vital power to exclude others from them.

          Property arises from our nature, not our esoteric concepts.

          • Brian Drake April 3, 2013, 1:30 pm

            “because living beings have the vital power to exclude others from them.” = rivalrous

            The word “rivalrous” is used to describe the concept of “power to exclude others”, or in other words, to have conflict.

            I’m starting to suspect obstinance rather than genuine disagreement. I’m done with you.

  • konst April 2, 2013, 7:22 am

    Wow. Listened to the whole thing. It was like being tortured.

    A question which is tangentally related:
    Suppose person A after years of thought and planning invents an energy generator that’s 100 times more efficient than current ones available on thr free market. Person A forms a company with a group of people and they produce and sell the generator.
    Company B, which has far superior manufacturing facilities, buys one, takes it apart, and figures out how to make one and also improves on it’s design.

    My question is not about pantents or copyrights. My question: in these types of cases would individuals bother to create new inventions since there are likely not to profit much from their inventions since companies with superior resources can copy and mass produce those individual’s inventions without compensating the inventors?

    • Brian Drake April 2, 2013, 11:36 am

      As Kinsella has often pointed out, the answer to you question is: who cares?

      The purpose of law is justice, not the effort to fine tune the amount of incentive for innovation.

      In your own example, person A was compensated. This is what “Company B….buys one” means.

      • konst April 2, 2013, 3:17 pm

        You misunderstand the question. I’m not asking about the law. What I’m asking is the what is likely or may happen to innovation under those conditions.

        • Brian Drake April 2, 2013, 3:38 pm

          No, I understood the question. I’m just saying it’s an irrelevant question. The anti-IP position is purely about the justness of the concept. How people find motivation to innovate without a legal regime to give them a monopoly is not really pertinent to this discussion.

          Let’s say we were discussing the injustice of rape. “ok, let’s forget about the laws about rape for a second, here’s a tangential question: without the ability to force a woman, how will men ever have sex?” The answer is the same: who cares?

          And the actual answer you’re looking for is already right in front of your face. Billions of men have found ways to have sex without rape. Just observe what’s already being done other than in cases of rape.

          There is, and has been, tons of innovation without IP protection. Answer your own question by just observing what’s already happening/happened.

          Why would fashion designers bother to make their designs when Walmart can copy them and mass produce them? Does it matter why? They do.

          Why would Mozart bother to compose when the moment his music was played, all other composers could still compose? Does it matter why? He did?

          Why would anyone bother to innovate before IP laws? How’d we ever get the wheel?

          There are other ways to profit from invention other than IP monopoly privilege. Removing an illegitimate business model doesn’t mean there’s no way to profit, it just means you have to be more creative in how you plan to bring your idea to market.

          • Brian Drake April 2, 2013, 3:40 pm

            I meant the anti-IP position held by principled libertarians. There are utilitarian anti-IP positions that aren’t concerned with justice. Kinsella is not a proponent of such positions.

          • Brian Drake April 2, 2013, 3:41 pm

            “all other composers could still compose?” should be “all other composers could copy it?”

    • Mark Baumann April 2, 2013, 6:39 pm

      High profit is gained if you are first to market. After that, the market drives profit margins to competition levels. Inventors have the incentive to be first to market where the highest profits are available for a short period of time.

      • Scott R April 3, 2013, 7:50 am

        In addition to being first to market, depending on the particular “invention” there are other ways that a person/company can attempt to maximize their profit in a world free of IP. Some examples:

        1) With software, you can create elaborate forms of copy protection.
        2) You could also make someone sign a contract stating that they will not copy it and redistribute those copies. Yes, this breaks down over time once it leaks out, but it may still serve to increase the amount of time that you have exclusivity.

        I bring these examples up to point out this simple fact: You can be anti-IP without being pro-open source. Wenzel tried to bait Tucker a while ago in asking that Tucker give Wenzel permission to publish a book for which the Mises Institute held the copyright for. Without getting too sidetracked here, the point is that just because you believe that copyrights shouldn’t exist, it doesn’t mean that you are going to go out of your way to encourage someone else to copy something of yours and sell it on their own. There’s no hypocrisy there.

        So, in a world without IP, there won’t be a state-granted monopoly on your invention. You’ll need to come up with other creative measures to maximize your profit, if that’s the reason why you’re inventing it in the first place. For many inventors, profit isn’t the driving force in the first place. They are driven to solve a particular problem. So people will still invent to solve their particular problems. Some will then attempt to mass market the invention for financial gain. And some of those may employ creative strategies to delay others from copying their invention.

  • Hank April 2, 2013, 8:32 am

    Let us imagine a situation where NAP is not violated, but a person can “steal” your ideas. For instance, a super human with x-ray vision who can read your locked up documents, or a psychic who can read your mind. In my opinion, if Wenzel still thinks this is a tort (in a libertarian world) on the same terms as a person violating your physical property, then he ought to explain his reasoning. I heard the whole debate and could not come up with Wenzel’s answer.

    It seems as though, ultimately, Wenzel and Kinsella agree. That today’s patent and copyright law are incorrect and should be handled exclusively by regular contract law.

    Also we should imagine a hypothetical where a person unintentionally violated their contract. A gives protected information to B. B relays the information to C, perhaps by accident, or perhaps by C’s prowess in the art of hypnosis (or maybe C’s just really good at getting information out of people). Should C be arrested? Under what charge in a libertarian legal system, robbery? Is he never allowed to use that information or give it to anyone?

    • Ed Ucation April 2, 2013, 10:17 am

      Of course that’s a tort!

      Using x-rays to scan someone’s document is a trespass, and so would be a psychic reading someone’s mind. Unless, of course, the psychic could prove that you are somehow broadcasting your thoughts into his/her brain.

      • Crosbie Fitch April 2, 2013, 10:27 am

        In a world in which human beings had evolved x-ray vision and telepathy, these would be natural powers and so it makes no sense to attempt to reconcile these with our expectations of privacy in a world in which we neither see x-rays nor enjoy telepathy.

        The use of superhuman powers in our world, such as x-ray scanners, to invade another’s privacy is an invasion precisely because it is superhuman, despite the lack of bodily invasion.

        No doubt in the land of the blind, the one-eyed man could be considered to represent a continuous privacy invasion. 😉

      • Hank April 2, 2013, 10:55 am

        Why is it wrong if it’s not a violation of NAP? What other principle do you justify it being wrong? This type of “x-ray” vision I’m describing is totally fiction, of course. It would not cause any physical harm to the person whatsoever (no radiation, etc.). The only “harm” would come from the competitive use of the information.

        Violating someone’s “privacy” is totally subjective. My standards of privacy may be completely different than yours. How would you determine a breach in someone’s “right of privacy” (assuming privacy is your justification, which might not be the case).

        • Crosbie Fitch April 2, 2013, 11:26 am

          Hank, if the walls of my house exclude the natural perceptions of all human beings, then I have the natural power (right to privacy) to exclude all others. This is the physical boundary delimiting my privacy. If some individuals utilise superhuman powers to breach that private boundary then it is irrelevant whether they damage the boundary or not. They have exceeded their natural powers of perception to invade my private domain.

        • Ed Ucation April 2, 2013, 12:13 pm

          If I walk across your property, or even read your email, is that a violation of NAP? Are you opposed to trespass torts, specifically trespass to chattels?

    • PH April 6, 2013, 9:44 pm

      When A sells a car to B and then B sells to C but B does not have a valid title, A can recover the car from C, and C suffers the loss. An example of not having a valid title is when B only owns subject to the condition of paying B in installments. As soon as B stops paying the installments, B is in breach of contract with A and loses title. C can be completely innocent but suffers the loss hence the phrase caveat emptor. C can sue B for misrepresentation but in practice B usually has no money.

  • Cody April 2, 2013, 9:04 am


    What you described already occurs in the fashion industry. The designer that is first to market is able to charge a premium as well as appeal to an upper class/market in many cases. Then immediately large companies “reverse engineer” the designs and use far superior manufacturing facilities to market the same designs to the masses, usually using cheaper materials and making the upper class designs available to the common man. So the origina designer obtains profit of being first to market, obtains reputation/name recognition with markets that care about such things, and is then incentivized to innovate.

    I hope my description provides some useful context in to how the market can work beautifully without employing ‘copyright/patent/trademark’ law (which are antithetical to inherent property rights).

    • konst April 2, 2013, 3:46 pm

      That’s a good example though different because in your example the “large companies” produce a lower quality good for mass market where as the “original designer” in your example is producing for a market houte couture.

      My question has to do with the following. It takes potentialy hard work and a long time to come up with innovative products. Innovation may end up being concentrated in large companies which have the resources and individual innovators will be few and far between. I do think something is lost since those large companies innovation is likely restricted to narrower areas of investigation because of company policy, etc whereas individuals are not.

      This may all be moot though since two recent innovations may come together to lower the cost of pruducing high quality goods, i.e. AI (artificial intelligence systems which are experts in various fields though devoid of free will) and “3D printing”.

      P.S. I hate the word “incentivize”. It sounds like we’re talking about lab rats who have no free will and reduce people to formulas of behavior. Like “incentivizing” a lab rat to find the piece of cheese in a maze.

      • PH April 6, 2013, 9:52 pm

        Good question and the answer is mixed. Beethoven would still have produced music but a pharmaceutical company will not sell products in a country which does not protect IP.

    • Mark Baumann April 2, 2013, 6:41 pm

      Well said Cody…

  • Stephen April 2, 2013, 9:06 am

    Tried to post this over at EPJ, but it seems he actively censors his boards. Yet another reason I’m so impressed with him:

    This was truly embarrassing and a disservice to the overall defense and promotion of liberty. Wenzel, I’m not all that familiar with you, but based on what I heard in this shouting match in which your obvious agenda was to get revenge for having your feelings hurt, I have no interest in you or your work.

    I have no interest in you personally because I just listened to two hours of you coming across as a pompous blowhard who clearly had no interest in debating at all (furiously looking for any Rothbard quote that obliquely proves you right, rather than listening to what Kinsella was saying, only to jump in, cut him off, and bring up some tangential point and scream into a microphone). You made it clear that the purpose of your conversation was to make Kinsella pay for pissing you off. Guess what – nobody else cares about what you think about Kinsella personally. If he hurt your feewings you could have addressed it in a separate post, or even more maturely, privately.

    I have no interest in your work because you failed, despite two solid hours and a defined subject that you seem to be passionate about, to demonstrate any sort of ability to think, reason, or debate. You were obviously more interested in vindicating yourself and “destwoying Kinsella” than you were at making any points. Your passion for the subject of the compatibility of intellectual property with property rights at large turned out to be nothing but a personal vendetta against some guy, and you duped me and anyone else stupid enough to waste two hours listening to this garbage into thinking that we’d be hearing two weighty thinkers debate a relevant and serious topic.

    A really painful, awful way to spend my evening.

    • Brian Drake April 2, 2013, 11:41 am

      To be fair, in my experience, Wenzel has an approval system for comments on his blog to avoid spam. I haven’t seen evidence of censorship, even when people are very critical/insulting of Wenzel. But since a human being has to be involved, there can often be a significant delay in approving any individual message. It’s possible he actually did censor you, but it’s also possible the larger than normal volume of posts generated by this debate has slowed their approval process down significantly so you’re just waiting, not being denied.

      • Stephen April 2, 2013, 6:01 pm

        Wenzel is clearly censoring his blog. I comment regularly and about half a dozen of my comments didn’t make it onto his site. Particularly ones critical of him, and ones mentioning Kinsella. What a clown.

        • Brian Drake April 2, 2013, 9:49 pm

          Ok, fair enough. I did allow for that possibility. I just haven’t encountered evidence myself, and have written critically of Wenzel and been approved. One comment in particular where I called him spiteful, dishonest, petty and a “little man”, and yet my comment was approved.

          • Stephen April 2, 2013, 11:08 pm

            Interesting. I was commenting as I listened to the debate and my first two comments critical of Wenzel for going off-topic, raising his voice, and cutting off Stephan were not approved. When I finished listening to the “debate” I posted a review that was pretty scathing for Wenzel, but polite, and that was not approved. Later, in discussion with someone who is confused and thinks that people own their labor, I mentioned Stephan’s article “How We Come To Own Ourselves” (twice) and neither post was approved by Wenzel. He did let some of my other comments through, but not the ones I mentioned.

          • Jared April 3, 2013, 9:51 pm

            As I say in another comment here, he ALWAYS censors my comments. It is rare that anything is allowed, and even when he does allow my comments, he never responds to any of my challenges on his ridiculous posts.

  • Matthew Postell April 2, 2013, 9:26 am

    I listened to the interview, and I learned a lot about IP. Although at times it is hard to listen to the rants, I came out with a better understanding of IP. I think both men are brilliant. Wenzel needs to devote more time to his blog (which is spot on and he has great posts) and less time on the radio. I do believe he will write a book about IP after this exchange, and Kinsella can then give a direct argument against Bob Wenzel’s thoughts on IP.

    • Brian Drake April 3, 2013, 1:43 pm

      I’m genuinely curious what has led you to conclude Wenzel is “brilliant”. Would you mind explaining?

    • Jared April 3, 2013, 9:57 pm

      Wenzel is not brilliant. He wants everyone to believe that he is some sort of brilliant, profound thinker, but essentially all of his arguments are Rothbard regurgitated and it’s becoming more and more obvious he doesn’t understand the concepts. The debate with Stephan was a pretty good indicator of that. I recall a kind of debate he had with Peter Schiff, and Wenzel was rendered speechless. Another indicator is that he never answers any of his challengers. Commenters on his blog site challenge him all the time, and if they aren’t censored, he just ignores them. The man is dishonest and a quack. I can’t understand why the Mises Institute has anything to do with him, but then again, I’m not surprised given the personalities that they run with. Anyone know why Tucker left? I have heard that he isn’t fond of Rockwell.

  • Duncan Berry April 2, 2013, 9:47 am

    IMHO Wenzel’s final flourish in his attack-piece on Jeff Tucker about putting 50% into nickels — NICKELS! — automatically disqualifies the man on several levels, the most basic being “economic policy.”

    Is it getting smelly in here or what?

  • Jeremy April 2, 2013, 10:09 am

    At 1:42 Wenzel was so confused he literally thought out loud to himself to talk about other things. Clear insight into his muddled thinking. Hopefully Rockwell, Woods, Salerno, and others will quit promoting him after this. He clearly has no solid grounding or any kind of consistent theory. His only tactic is to attack people with gotcha moments. I followed his blog for a while because of their recommendations, but I don’t think I ever saw him post anything positive or original. His mumbling mises institute speech reminded me of a freshman speech class. Hopefully Kinsella will take Tucker’s approach and ignore him unless in the unlikely chance he adds something meaningful to any topic.

    • Brian Drake April 2, 2013, 11:45 am

      Agree. His interview style is embarrassing and unless he’s talking to a friend, often devolves into “gotcha” setups that often lack any real punch. He often employs equivocation which is the tactic of a liar. Guess what, some words have multiple meanings, and even if the guest is using a less-common meaning, an honest person will engage the concept they are referring to, not stick to attacking the definition they want to impose.

      I didn’t make it through the Mises “speech”. Really bad, like you observed.

  • knoxharrington April 2, 2013, 10:38 am

    I made it 58 minutes before I had to bail. Wenzel comes off like a shrill child. The money quote from Kinsella was “Jesus Christ – make it stop.” Awesome. Listening to this reminded me of what you here from four year olds. No substance on Wenzel’s side and when that was pointed out he got louder and more shrill. I think you deserve a medal for hanging that long. I would have hung up and shaved my head with a cheese grater – it would have been more fun and about as enlightening. Wenzel is a tool and the “Kinsella Crushed” headline is as misleading a headline as one could find.

    • knoxharrington April 2, 2013, 10:39 am

      “Hear” not “here.”

  • Stephan Kinsella April 2, 2013, 10:46 am

    Thanks all. I agree there are things I could/should have done differently. I tried, I really did. I don’t think Wenzel is a bad guy. He is just for some reason invested now in defending his pontifications on things he is obviously confused or out of his depth on.

    • Thymologist April 2, 2013, 3:19 pm

      Right again, Mr. Kinsella!

      I think Mr. Wenzel is trying to establish himself as a ‘thinker’, but he clearly has not got the training for it (I have no idea about the capacity). See, for example, his giving a presentation at the ASC. And now that he has this aim, he is psychologically invested (As to why he has this aim, far be it for me to speculate. And in the time honored tradition of doing so after saying one won’t: feelings of inadequacy.). Combine that with an animus against Mr. Tucker and (unfortunately) your statement that he would back down and voila: the ‘debate’. He had no other option but to embarrass himself. This was arguably the most face-saving way, sad to say.

    • Jule Herbert April 2, 2013, 8:39 pm

      I have long held to the view that if one can’t fence it in or, for whatever reason, chooses not to, then “it” is not property. Simple perhaps; but it seems to cover all of the bases.

      • Stephan Kinsella April 3, 2013, 9:02 am

        Jule, there may be something to this, since the ability to “exclude” has to be there since ownership is really the legal right to exclude others—if you don’t have the ability (and right) to exclude others from using the owned thing, then why would they need your permission? And I think this is bound up with the idea of rivalry and conflict. And also what it means for something to be a (scarce) means of action.

  • Stephen April 2, 2013, 10:50 am


    I don’t think Kinsella or anyone else talks about abstract “objects,” and anyway the proper question isn’t about abstract versus concrete, it really is all about scarcity.

    The significance of scarcity is that it is a necessary precondition for property to arise in the first place. Like in Hoppe’s conception of ‘super-abundance,’ without scarcity the assertion of property rights would be pointless and unenforceable. On earth, in non-underwater-or-vacuum conditions, feel free to claim a particular gulp of air as your property, but good luck trying to enforce that claim or to convince anyone else you’re not insane.

    Since everyone here seems to love Rothbard, I’d like to remind us that in Man, Economy, and State, he identifies a ‘means’ as being scarce in the sense that it is ‘limited with respect to the ends [it] could possibly serve.’ He also points out that all means are scarce. If something is not scarce, yet it provides value, it does not and cannot factor into economic calculation; rather, it is considered a ‘general condition of human welfare.’ It may be important, or indeed necessary, and it may have taken a lot of ‘work’ to develop (whatever that means), but still it cannot be considered a means, a good. If it is not a good, it cannot and thus will not be economized (choosing which ends to be satisfied with the available means). I have a recipe for a margarita. I have enough physical ingredients to make ten margaritas, but I obviously have enough ‘recipe’ to make an infinite number of them. You see this, right?

    If we consider this with regard to an idea, we see that it does not fit Rothbard’s own definition of a means in the praxeological framework, since an idea does not have to be economized – its supply is equal to any potential demand that may arise for it. This being the case, an idea should be categorized as a general condition of human action and welfare, not a means. It then should be analyzed the same way sunlight and air are – necessary factors of life that in typical conditions it would be absurd to claim ownership over.

    Also, as to the formula being locked in his drawer, you do realize that the formula per se is not in his drawer, right? It’s a piece of paper, or a flash drive, or something else that’s physical that is in the drawer. It’s true, the physical object is absolutely his property, and because we’re all good little Rothbardians we can check with the quote from scripture and see that this fits. But we can also see that the scratchings on the paper that symbolize in Wenzel’s mind a special formula do not signify ownership over the formula, anymore than the fact that his name is Bob means he owns the name Bob.

    • Crosbie Fitch April 2, 2013, 11:41 am


      Whether seawater in a jar or writing on paper. These are real, physical objects, and when enclosed within my drawer, I have the natural power and right to exclude you from them. They are my property.

      The argument that property is not determined by the natural powers/rights of the individual, but by whether the resource is scarce or not, is like a utilitarian argument as to whether the state should secure the individual’s natural right if the object the individual is excluding others from is not scarce, i.e. whether the state should turn a blind eye in the case where people steal my seawater or writings from my desk drawer.

      And the utilitarian has so far decided that it is best to simply grant the author a reproduction monopoly over their writings – that they can sell to those powerful enough to prosecute it.

      If you accept utilitarianism, then property is the gift of the state, not a natural right. At most you’re left arguing whether monopolies are ‘useful’.

      Now as to an ‘idea’?

      That sounds like an abstract object to me.

      • Stephen April 2, 2013, 9:37 pm

        Crosbie, there are several “Stephens” here. Can you please reply to my post above (April 2, 2013 at 11:22 am)?

      • Stephen April 5, 2013, 1:29 pm

        Crosbie, do you understand that property is a normative concept the purpose of which is to answer the question “who should have the right to control this rivalrous resource?”

        What you seem to be saying is that if you do control it, then you have a right to control it. That sounds like a justification for statism if I’ve ever heard one.

  • Matt Palmer April 2, 2013, 10:57 am

    I can sum up this debate briefly.

    Kinsella: http://onemoresaturday.files.wordpress.com/2012/05/123.jpg

    Wenzel: http://a1.ec-images.myspacecdn.com/images01/123/a81a8abcf2c2cb7ef0c39a6515e336e7/l.jpg

    Wenzel made a total fool of himself in this. I’m not sure how he can show his face anymore. Stephan, what you could have done better would just have been to let Wenzel talk more. That would have sunk him faster; he didn’t need anyone to refute his garbage.

  • Jeremy April 2, 2013, 11:01 am

    Funny how Wenzel is so shocked that Kinsella could ever disagree with Rothbard on anything, when along with his nonexistent book on IP he always talks about a book he will someday write refuting Rothbard’s natural rights theory.

    • Jared April 3, 2013, 10:03 pm

      That’s how Wenzel his. He obsesses over the most bizarre things. He was obsessing over Tucker’s not selling books by Rothbard on his site (Tucker’s site). He wanted some sort of explanation. The man is clearly not all there. It seems he has some sort of obsession with Tucker in general. First it was the issue I mentioned above, then it was his view on IP, and now it is Tucker’s commenting on bitcoins. Nutjob.

      • PH April 6, 2013, 10:16 pm

        On the Best Sellers page, 10 authors & 30 books are listed, and Rothbard is not one.
        Isn’t that curious?

        • PH April 6, 2013, 11:52 pm

          I spent a few more mins researching this. The LFB has more than 10 pages of best sellers with 30 books on each page. The first book by Rothbard I saw is on page 9! It was the only one in 300 books listed. Nathaniel Brandon is on page 2!

          Isn’t that curious?

          • Jared April 8, 2013, 11:51 pm

            No, that’s not curious at all. Who cares? It’s Tucker’s business, not mine. Wenzel was acting like Tucker committed some sort of crime. Tucker can sell whatever he wants.

  • Corey Towne April 2, 2013, 11:28 am

    Apparently, Wenzel’s pro-IP argument is so secret and so valuable, that he will not share it over a podcast. He is going to write down and publish it, then make tons of money from it. But what if a library buys the book and lends it for free? And what if one of the people that lends the book succinctly describes that pro-IP view? That would diminish Wenzel’s profit-making ability. He would be better off keeping the idea and his supposed future profits, which I would guess is exactly what he’ll do.

    • Misesian April 2, 2013, 12:10 pm

      Corey Towne,

      Bloody hilarious. That secret pro-IP argument is as “scarce” a good as his future profits on the book.

      I actually enjoy Wenzel’s blog but I shall now ignore anything he says about IP or Stephan Kinsella unless the title begins with “Wenzel Eats His Shorts On IP”.

  • mikeyb April 2, 2013, 12:13 pm

    I don’t know you very well i have not read your stuff. however i listened to about 50 minutes worth of content of the “debate” its a 50 minutes of my life I will never get back. I’m not surprised some are calling it an April’s fool Joke.

    you earned my respect. however i sincerely apologize for the 2 hours of your life spent listening to arguments of Bob doing exactly what you said he would do. at first I’m like wow to call someone a clown weasel and snake is not a good way to start things off. but in fact your prediction was spot on.

  • Stephen A April 2, 2013, 12:25 pm


    To be clear, there are two separate guys posting under the name Stephen here, so I think you may be responding to two separate people. Anyway, I’ll go by Stephen A (not because he’s threatening me with suit for theft, mind you; he doesn’t own the name Stephen).

    Anyway, I heartily disagree that the idea that scarcity necessitates property implies that property is a privilege granted by the state. Nor is it a utilitarian convenience. Property is simply a praxeological deduction from the action axiom. Mises, Rothbard, and Hoppe, along with everyone else after them in the Austrian tradition recognize scarcity as a fact of existence. Neither good nor bad. Just is. Even in Eden, action itself implies scarcity.

    In this plane of existence, where scarcity is an ever-present fact, property has arisen. No mention of the state. It would have arisen and did arise antecedent to and regardless of the state. This comes from the fact of self-ownership, which the state does not grant (in fact by definition it violates it through taxation). We own ourselves, and included in this observation of reality is that each owned-self is a scarce good. Doesn’t necessarily prove anything. Just an observation. Each self is scarce.

    If we agree on the concept of self-ownership and we agree that each self is scarce, then we agree that scarce things are ownable things. Perhaps we haven’t proven that scarce things are the ONLY ownable things, but at least we have common ground.

    The next step is to consider non-scarce things, of which there are some. Perhaps we don’t agree that ideas are examples of these non-scarce things, but maybe we can consider something else. It can be anything, imaginary or real. I like the example of air, but perhaps there are better ones. Anyway, considering any non-scarce thing, we can hopefully see that property is at best a superfluous and at worst an absurd concept in this context. We know that property arose in a world of scarcity, and we know that Mises, Rothbard, Hoppe, et al argue that property arose BECAUSE OF this scarcity, that it arose as a mechanism to prevent conflict over scarce means. If all things were like air is in typical situations, property would be applied to all things like it is applied to air in typical situations, i.e., not at all.

    The next step is to finally consider ideas. Ideas, Kinsella argues, are exactly like air and other non scarce goods. They may be important, but they are not ‘means’ in the misesian framework. Human action attempts to arrive at ends by using means, aided by the mind. Ideas are in the mind. They are either in the minds of real, live human beings, or they don’t exist at all. Even if they are recorded, there must be human beings who have the ability to decipher the message from whatever medium it is immortalized in. Therefore, they cannot be scarce. They are infinitely reproducible.

    Nobody is saying that scarcity is a criterion that we apply to certain things after the fact, nor is anyone saying that property comes from the state or any other external human institution. The argument is that scarcity is an ever-present fact of reality that allows us to praxeologically deduce property rights, and that therefore, in the absence of scarcity, we cannot assign property rights.

    • Crosbie Fitch April 3, 2013, 6:53 am

      “Property is simply a praxeological deduction from the action axiom” is an example of what I mean by esoteric.

      We are in THIS universe. We cannot justify property in this universe by imagining an abstract universe in which it would not arise, whether due to infinite abundance of abstract objects or the non-rivalrousness of abstract objects.

      In this universe we have matter and information – and the material and intellectual works we make with them. If an individual has the natural power to exclude others from the works in their possession, then they are naturally property. Individuals do not have the natural power to prohibit all others from making copies or similar works – such power is granted by the state.

      If you hope to explain to people why state granted monopolies are unjust then you aren’t going to get anywhere by introducing esoteric concepts of superabundance and non-rivalry.

      A man’s home is his castle. That’s what people understand.

      Get real.

  • Stephen A April 2, 2013, 1:01 pm


    You’re running into trouble because of your word identical there. They may be identical from an objective, technical point of view, but from the point of view of the acting human beings in that situation (the children), the two goods are clearly not identical. One is preferable, ie it ranks more highly on each of the individual’s value scale than does the other toy, for whatever reason.

    You are correct to say that this is a demonstration of rivalrousness. The toy cannot be exclusively played with by either child without depriving the other child of the enjoyment of playing with that same toy exclusively. However, you are not correct to say that this is an example of non-scarcity. Again, even though according to an observer or the manufacturer, the two toys ‘should’ be identical and therefore equally serviceable to the ends sought by the two children, in the children’s minds this is not the case, and it’s their preferences that count.

  • Stephen April 2, 2013, 5:59 pm

    Anyone else think of the movie Se7en (“What’s in the box?!”) when Wenzel was losing his mind saying “What’s in the paper Stephan?! What’s in the paper?!”

    • Dave in Ann Arbor April 3, 2013, 1:20 pm

      Where’s the money, Lebowski? Where’s the fucking money, Lebowski?

  • Collin Knight April 2, 2013, 6:06 pm

    Wenzel also did a spectacularly bad job debating Peter Schiff a while back. Peter was saying he prefered a consumption tax over an income or other tax and Wenzell challenged him on it, but he could only say Rothbard wrote something and that Rothbard was a good economist!?!? It was a perfect missed opportunity to move Schiff even further in the Libertarian camp. I thoght Wenzel did a good job in his speech about soviet communism though.

  • Matt April 2, 2013, 8:49 pm

    Stephan – didn’t know about your site ahead of the “debate”. I’ve been going to epj for variety of content and clips. Your performance has brought me here. By the way, drudge formula example was a bit out there. Bob using that as his position on ip didn’t work. You took care of it pretty easily. By the way I thought you handled yourself well when confronted with a screaming counterpart for the majority of the debate. I hope to find stimulating content in your posts.

  • konst April 2, 2013, 10:11 pm

    One good thing came out of this for me. I didn’t know Stephen Kinsella had a podcast. Will be a regular listener now.

    • konst April 2, 2013, 10:13 pm

      correction: I meant Stephan Kinsella.

  • Jackson April 2, 2013, 10:16 pm

    I like how Wenzel read you almost word for word the first sentence about multi-variable calculus from wikipedia, after you said he didn’t know what a limit was LOL.

    “Multivariable calculus (also known as multivariate calculus) is the extension of calculus in one variable to calculus in more than one variable: the differentiated and integrated functions involve multiple variables, rather than just one.”

    • Stephan Kinsella April 3, 2013, 1:05 pm

      yeah, that was predictable and funny. Wenzel is a shadowy character. Who knows where he came from. Some former Lyndon Larouche type? Who knows. What are his credentials? his background? Given his tendency to oversell and exaggerate himself (claiming he charges $750 for a 10 minute phone consultation… yeah …. right) if he had any actual relevant degrees or experience you would think it would be on his site and trumpeted to high heaven. That he doesn’t … raises questions. So I am assuming he has never gotten any real or notable formal college education, and thus doens’t know calculus. So I tweaked him on that by mentioning the limit in calculus (to try to explain to him why he is wrong in his confusion about the “superabundance” idea) and he was probably furiously googling about this and decided later to just out of the blue ask me… in a discussion about IP … whether I know “multivariable calculus”. I mean … wow. just wow. And I tried to point out that I probably used to know it (I don’t hide the fact that my college stuff was 20 years ago and I’ve forgotten some or am rusty on it) and in fact took calculus I, II, multidimensional calculus, differential equations, and many related courses and applications thereof (in electrical engineering BS and ms), and he then just changes the subject. It’s quite an amazing display.

      • Misesian April 3, 2013, 10:35 pm

        So … it got worse? I tuned out after an hour. That is absolutely atrocious. Unbelievable. I used to have his site bookmarked to glance at until today. I was just going to ignore his IP rants going forward. But this “debate” and its aftermath proves Wenzel has chosen ego boosting over truth.

        I’ve been mulling it over since I heard the debate but his conduct since and this last is just too much.

        When you have quality blogs such as yours, Austro-Athenian Empire, the Bastiat blog at the Mises Institute, and many others, there’s simply no need for EPJ foolishness. I’m in finance so I appreciated the libertarian tabloid aspect of some of the posts about central bankers and so on. But … not this much!

        Unfortunately, Wenzel won’t understand that the real problem is not his (incorrect) views on IP but rather that his amateurish blustering shows his insufficient appreciation of the value of truth seeking. This, on a topic he claims to be writing a book about, is damning.

        I truly wish Wenzel the best of luck but I’m done with his site.

  • Jared April 3, 2013, 12:25 am

    I haven’t thought a whole lot about IP before listening to that “debate,” but I’m definitely going to now.

    As an aside, I’m happy that people, especially his readers, are going to see what an ass Wenzel really is. I lost all respect for him a long time ago, for various reasons. I had thought that a lot of his outlandish behavior was an act in order to increase traffic to his site, but after listening to him tonight, I really do think that the guy is delusional. He is almost like a savant that can memorize all of Rothbard, but then fail to understand the concepts behind the words. The sad part is that he doesn’t know, that he doesn’t know, and he literally thinks that he is some great thinker. The guy is obviously a joke. It amazes me that anyone follows his site at all. I wasn’t surprised that he stonewalled Stephan in the debate because that’s what he does to his readers and the commenters to his posts ALL THE TIME. I have challenged him so many times only to have my comments censored, which I’m finding out that I’m not alone on that. Anyway, great job Stephan in the debate. I’m sorry you had to waste your time trying to have a serious discussion with a child. I for one would have really lost my patience.

  • Patrick April 3, 2013, 4:51 am

    I’ve submitted this comment twice now on Wenzel’s blog, but it hasn’t appeared, and other posts have showed up…so perhaps the LiveJournal/Blogger “post as” thing doesn’t work properly, or perhaps he “accidentally hit the delete button” like he admitted he did with Kinsella’s post…or maybe he just didn’t want this up there, but here it goes:

    Bob your logical fallacies are just insane at this point.

    Equivocation. Look it up.

    Kinsella and others have clearly said “scarcity” in the economic sense does not mean “rarity”. And I thought anyone even remotely familiar with economic concepts would be aware of the economic meaning of “rivalrous”.

    Seriously, just do a damn Google search for the term and it’s the first damn result:

    Rivalry (economics) – A rival (subtractable) good is a good whose consumption by one consumer prevents simultaneous consumption by other consumers.

    Yet you insist on talking about “rivalry” as if the subject of discussion was college football or Looney Tunes characters.

    Coincidentally that’s what you look like here, Bob. A looney toon.

  • Don Stacy April 3, 2013, 12:14 pm

    Memo to self regarding key lesson relearned from Kinsella-Wenzel IP “debate”: NEVER publicly debate an expert (Kinsella) if you’re a dilettante (Wenzel).

  • Collin Knight April 3, 2013, 1:16 pm

    Isn’t Wenzel’s view really the same as yours but he doesn’t know it and is afraid to say that IP is wrong?
    He says his view is the Rothbard view. Point me to where you have shown that Rothbard was wrong on this and how.

    • Patrick April 3, 2013, 7:44 pm

      You obviously didn’t listen to the podcast.

      a) Wenzel doesn’t understand Rothbard’s view.
      b) Read Against Intellectual Property

  • Steven April 3, 2013, 1:21 pm

    It’s actually quite frightening how delusional Bob is. I applaud you, Stephan, for enduring this ridiculous, maniacal interrogation. I mean, wow! He started his portion of the debate licking wounds for crying out loud. A babbling mess.

    • Stephen April 3, 2013, 2:23 pm

      “Maniacal interrogation” is the most accurate conceivable description of what transpired.

    • Jared April 3, 2013, 10:08 pm

      God, I forgot all about that part, his licking his wounds. Now I remember being incredulous as to him even bringing that up. He had been saying before the debate that he was going to destroy Tucker in the debate with Stephan (I know, WTF?) and then nearly all the commenters on his site were telling him how pathetic he was for even bringing Tucker up and how they’d lose respect for him if he did…the guy is an absolute mess.

  • konst April 4, 2013, 5:29 am

    After thinking about this and Wenzel’s view I think I realize what Wenzel is upset about.

    He is really arguing that he has an ownership to his “stream of income” that he assumes his formula will give him as though his “stream of income” from his formula is his property. I don’t think he’s aware of it, that is, if that’s really what going on.

    • konst April 4, 2013, 5:37 am

      In other words, he’s upset that people are stealing his “stream of income” but he conflates that with his formula as though a formula, i.e. an idea, can be owned.

    • Stephan Kinsella April 4, 2013, 9:23 pm

      yes, this is my point in all these arguments–they really think they have a property right in other people’s money.

    • Brian Drake April 5, 2013, 10:36 am

      I agree. I’ve started calling this the “labor theory of entitlement”. It’s a crass variation of the Labor Theory of Value, but goes beyond in that instead of just thinking that labor somehow embues an object with inherent value (a false concept, I know), the LTE postulates that creating that value actually entitles you to other people exclusively purchasing that value from you.

  • Wenzel the Clown April 4, 2013, 1:09 pm

    I haven’t read all the comments but from the once I have read I’m surprised nobody has mentioned the absolutely mind boggling amount of irony that surrounds this “debate”:

    Wenzel is upset that he was called a clown and a weasel and then proceeds for the next +2 hours to do nothing but weasel himself out of answering Kinsella’s perfectly sound and legitimate questions while doing nothing but clowning around like a fucking 3 year old.

    That this out of touch, senile lunatic calls himself a libertarian makes me sick.

  • Crosbie Fitch April 4, 2013, 2:00 pm

    Stephan’s debate with Robert Wenzel reminds me that the pro-IP axis is canny enough to avoid confrontation with the libertarian opposition given they know they have no good arguments. The only ones who fail to avoid confrontation are those insufficiently canny.

    This makes me wonder if there’s any mileage in a devil’s advocacy exchange, i.e. two libertarians take it in turns to adopt the for & against IP position vs the other who takes the opposite. So we end up with two separate discussions (assuring that each participant is equally tarnished).

    The thing is, anyone who’s argued long enough with monopolists pretty much knows their gamut of ploys, sleights, sophistries, ad hominems, appeals to moderation, authority, and other fallacies.

    However, are there at least two libertarians who can stomach the idea of arguing the monopolist’s position?

    • Stephen April 4, 2013, 3:29 pm

      Crosbie, please address this:

      A and B agree to a contract: A agrees to share information with B on condition that B not reveal it. The contract specifies monetary damages if B shares the information. The information could be anything.

      Now, let’s assume that B breaks the contract and reveals the information to C. B is liable for the monetary damages specified in the contract. But C is not a party to the contract. Now A, B, and C know the information.

      If C uses the information to guide his action, is he violating anyone’s property rights? How can A prevent C from using the information without violating C’s property rights?

      • Crosbie Fitch April 5, 2013, 2:34 am


        It seems that you’re using ‘damages’ in the sense invented by state granted monopolies. If you have not been granted them, then how can you suffer damages if they are infringed?

        With or without such grants, B is naturally at liberty to reveal anything disclosed to them by A. Only discretion may persuade them otherwise.

        Discretion and confidence are matters of trust, i.e. are things that arise in a relationship through mutual experience and interest. Like love, if you start paying for it, it becomes mere sex. If you pay for discretion, you have thrown trust out of the window, and are paying for mere non-disclosure (very difficult to police and prove disclosure).

        If anyone is going to pay anyone for non-disclosure, you should consider A paying B a reward for confidentiality.

        Of course, B might highly value the information A offers, and may wish to offer to A a security/deposit in exchange for A’s disclosure and finite period of non-disclosure by B . The non-disclosure is a CONDITION for the return of the deposit. Neither party surrenders/loses any liberty. Nor does this need the invention of imaginary ‘damages’ – contracts are not mechanisms of punishment.

        So, the matter of B’s potential disclosure to C is irrelevant, except that it triggers the condition – if A can detect and prove this disclosure within the finite period agreed.

        There is no property here except the deposit.

        I will note I am dismayed at how copyright has indoctrinated so many libertarians into accepting that speech can be propertised, and that whilst one may not be able to sell themselves into slavery, they can sell their liberty to speak. Contracts can exchange only that which is alienable, i.e. property – not liberty, not labour, not speech, nor silence. And of course, I use the term property as applied to real objects – not abstract objects such as ideas.

        There must be people who really like copyright and patent, but also like the idea of libertarianism, so hope for some way to recreate the former legislations’ abridgement of people’s liberty via contract. Contract is not a micro-legislature. It’s not that powerful. It can annul no natural right.

        • Stephen April 5, 2013, 12:16 pm


          I clearly stated that “damages” meant a specific amount of money that B would be liable to transfer to A if B violated the terms of the mutually agreed-upon contract.

          You have not at all addressed my questions regarding third parties.

          Explain to me how C is violating anyone’s property rights by using the information to guide his action, and how A can prevent C from using the information without violating C’s property rights.

          • Crosbie Fitch April 5, 2013, 12:57 pm

            Stephen, contracts aren’t violated. Rights are violated.

            A contract is an equitable agreement concerning the exchange of property (alienable, real objects) between two people.

            The important thing about such an equitable exchange is that both parties remain in equity, whether the exchange occurs or not. A contract is not about the surrender of liberty (though many would like it to be).

            A priori, there can be no damage suffered by one person from another’s liberty.

            If you tell me your carbonated caramel beverage formula in expectation of my discretion, and I enjoy my liberty to disclose that formula to another, you can suffer no damage. Moreover, I cannot surrender my liberty to disclose what people may confide in me in a contract.

            So, it is meaningless to discuss damages in the event of disclosure (or ‘breach of confidence/trust’ if you think that makes it sound more damaging).

            If you feel you lose market advantage through disclosure of your formula then such loss occurs because of your liberty in disclosing it to others (at liberty to disclose it further).

            Much as you might like to, you cannot create ‘others without liberty’ (aka ‘slaves’).

            It should also be fairly clear from what I said before, that not only is B’s liberty unaffected by any contract they enter into, but also C’s liberty is unaffected by anyone else’s contract or condition thereof (disclosure).

          • PH April 6, 2013, 10:28 pm

            @Stephen at Apr 5th at 1216pm,
            How can A sue C?
            In any of the following existing torts:
            a) conspiracy
            b) interference with a commercial contract
            c) interference with prospective business advantage

            a) occurs when there is an agreement between two or more parties to deprive another of legal rights or
            deceive another to obtain an illegal objective.

            b) occurs when there is (1) a valid contract between plaintiff and a third party; (2) defendant’s
            knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption
            of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and
            (5) resulting damage.

            c) occurs when (1) an economic relationship between the plaintiff and some third person containing the
            probability of future economic benefit to the plaintiff, (2) defendant’s knowledge of the existence of
            the relationship, (3) defendant’s intentional acts designed to disrupt the relationship, (4) actual
            disruption of the relationship, and (5) damages to the plaintiff proximately caused by the acts of the

          • Stephen April 7, 2013, 9:28 am

            PH, you are answering the question “how can A sue C under existing U.S. law,” which is very different from the questions I’m asking about property rights violations.

    • Stephan Kinsella April 4, 2013, 9:26 pm

      “Stephan’s debate with Robert Wenzel reminds me that the pro-IP axis is canny enough to avoid confrontation with the libertarian opposition given they know they have no good arguments.”

      Right. Like Adam Mossoff and his ilk.

      • Stephen April 5, 2013, 1:11 pm


        I couldn’t reply directly under your post (April 5, 2013 at 12:57 pm) so I’m replying here.

        I agree with your definition that a contract is an equitable arrangement concerning the exchange of property between two people.

        So are you arguing in favor of “intellectual property” or not? If you are, what is your argument as to how property rights can be assigned in patterns of information?

        • Crosbie Fitch April 5, 2013, 1:39 pm

          Stephen, rights are not assigned. We have natural rights (from our natural power, in equilibrium with our fellows) – inherently.

          If we naturally have the (equal power viz) right to exclude others from an object, and that object is alienable, then that object can be termed property. NB This is a pragmatic definition, not an esoteric one requiring a committee of experts in praxeology.

          From all my other comments here, it should be head-smacking-on-the-deskly obvious that I’m one of those who classify state granted monopolies as abominations, instruments of injustice to be abolished at the earliest opportunity.

          • Stephen April 5, 2013, 2:16 pm

            Crosbie, property is a normative concept. The question to be answered is: “Who should have the legal right to control this rivalrous resource?” You seem to be answering that question by saying that might makes right.

          • Crosbie Fitch April 5, 2013, 2:54 pm


            Property is natural, as natural as a bear’s cave, a dog’s bone, or a man’s axe.

            Might is the means of arbitration in terms of natural, unequal, bodily power.

            Justice is the means of arbitration in terms of equal bodily power, i.e. natural right.

            Law is the codification of such justice.

            Governments are instituted among men to thus secure their natural rights.

            The anarchist posits that through inevitable corruption this results in less justice than no government at all. The statist posits that anarchy is untrammelled corruption – more libertinism than libertarianism.

            I am an agnostic, but will observe that the state is doing an excellent job of demonstrating the anarchist’s position.

          • Stephen April 5, 2013, 2:58 pm

            Crosbie, you keep picking random words and side issues to dwell on without addressing my actual questions. You aren’t arguing for anything.

          • Crosbie Fitch April 5, 2013, 3:19 pm

            So, Stephen, after all this, you conclude that I’m not arguing for anything?

            I suspect you mean that I’m not providing easy answers for the questions you’ve been set at school for a homework exercise.

          • Stephen April 5, 2013, 3:31 pm

            I seriously don’t know what you’re arguing for. Are you saying that property isn’t a normative concept? Are you saying that whomever controls something has a right to control it?

        • Scott R April 5, 2013, 3:46 pm

          Stephen, I’m not sure why Crosbie has not answered your question with a simple yes/no, but I’m also not sure why anyone who has read his posts would not think that he’s pro-IP. There were some earlier posts of his where I believe he was critical of Kinsella’s approach in his debate with Wenzel. Specifically, the terms “scarce” and “rivalrous” mean something different to the layman than they do, apparently, to an economist like Kinsella. Wenzel was unwilling or unable to get past that, even after Kinsella defined the terms clearly, but I would argue that Kinsella would have been better off dumbing-down the terms so that the listening layman (and Wenzel) would not get tripped up on that.

          • Scott R April 5, 2013, 3:48 pm

            Doh! That should have stated, “but I’m also not sure why anyone who has read his posts would think that he’s pro-IP.”

          • Scott R April 5, 2013, 4:06 pm

            …and to further prove my point that Kinsella’s use of the term “scarce” is a bad idea: Wenzel has just posted *yet another* blog post where he’s exploiting the fact that the layman reading his blog will think of scarce in the dictionary.com sense (i.e., uncommon) and not by Wenzel’s definition (which I believe has to do with two people being unable to control it simultaneously – or was that rivalrous? See, even I’m a bit confused).

            If you know about a fairly unique idea (leaving aside the questions of whether you truly invented it or discovered it, and whether you “have” it or simply “know” it – the latter resulting in another frustrating waste of time on the blog debate) then the idea is scarce in the dictionary.com sense of it being “uncommon” *until* others find out about it, at which point it has the potential to become extremely common, and the only ones harmed by it becoming common are those that are benefitting from their previous monopoly position of it. Assuming that the idea was not only unique, but also had value (in that whomever possessed the idea was better off for knowing it), then one could argue that the more people who know the idea, for the cheaper the price, the better off everyone would be, *except* for the monopolists.

            I suspect that that serves as another stumbling block for many libertarian capitalists, but I personally don’t see why being in favor of capitalism requires that one be in favor of protecting monopolies. Some of the pro-IP crowd seems to want to equate being anti-monopoly with being pro-communist/socialist.

          • Stephen April 5, 2013, 4:21 pm

            I’m just puzzled by things he has said such as “scarcity and rivalrous are vacuous concepts in the IP debate” and “if I have a phial of seawater in my pocket … it’s my property.”

            He seems to think that the distinction between information (which can theoretically be used by every person, for any purpose, simultaneously) and rivalrous resources has no bearing on whether information can be property. I think this is because he thinks that only physical things can be property, which I agree with, but how does he justify property rights? He seems to say that if he has something in his pocket, that thing is his property, regardless of whether it justly belongs to him.

          • Stephen April 5, 2013, 4:33 pm

            Regarding Wenzel, I don’t even know what to say about that guy as it relates to the IP debate anymore. His entire “argument” is:

            1) I know information that not everyone knows.
            2) I have a property right in that information.

            Honestly, I listened to the “debate” several times to write the summary that Stephan posted above, trying to find any glimmer of an actual argument from him. All he did was appeal to authority, make assertions, equivocate, and question beg.

  • Collin Knight April 4, 2013, 3:39 pm

    Wenzel has posted the ” do you know calculus ” joke on youtube, he’s acting like because he can quote wikipedia that proves IP should exist

  • Scott R April 4, 2013, 6:27 pm

    Stephan, as a lawyer, I would like your opinion on this…

    Those of us on the anti-IP side have been trying (unsuccessfully, it seems) to convince the pro-IP libertarians (oxymoron?) that IP is immoral in that it can involve preventing, via force, someone else from using their own property as they desire. In this debate, it seems like many anti-IPers have suggested that contracts could offer a bit of relief for their stubborn pro-IP friends (while reminding them that it will eventually break down once nosey-neighbor C sees the invention that buyer B just bought from inventor A). But in doing so, you’re granting legitimacy to the notion that buyer B can be bound by their contract with inventor A never to copy it, improve upon it, or leak information about it to anyone else.

    So my question: Can even buyer B *really* be bound by a contract that limits them, in perpetuity, to never use their own body and physical property as they desire in regards to copying or improving upon inventor A’s invention? I would argue (not being a lawyer myself) that such a contract is worthless the day buyer B signed it.

    There seems to be so much worship of the notion of “contracts” in these debates, such that no one cares how ridiculous the terms of the contract may be. So long as buyer B signed it, it’s good. So if buyer B signs a contract stating that if nosey-neighbor C happens to find out about the invention, buyer B must hunt down C, kill him, and dispose of his body (and all will be right with the world with buyer B not being held to account for said murder), is that a legitimate contract, too?

    The question I’m getting at (and taking far too many words to do so) is that I’m sure that contracts that are written in such a way as to violate natural rights, are worthless pieces of paper that, by any moral standard, cannot and should not be enforceable. And I would argue that any contract that prevents me in any way, shape, or form, from using my body, mind, and owned physical property as I see fit, would fall into that category.

    • DG April 4, 2013, 6:52 pm

      In the libertarian world, protection of ideas would be limited to nondisclosure agreements enforced by performance bonds. The transfer of an idea is simply a service contract. See Chapter 19 of Rothbard’s Ethics of Liberty on why performance bonds are necessary to make service contracts enforceable:

      “For utilitarians shocked at the consequences of this doctrine, it should be noted that many, if not all, of the problems could be easily surmounted in the libertarian society by the promisee’s requiring a performance bond of the promissor in the original agreement.”


      Wenzel is off his rocker that he can’t make this connection.

    • Stephan Kinsella April 4, 2013, 9:28 pm

      I appended earlier tonight something to this post that should address this–see the stuff at the end beginning with:

      “One more note. Wenzel repeats a common fallacy. This is the idea that if you can sell something, that implies you own it (a converse fallacy is the idea that if own something, you can sell it—Walter Block relies on this in his defense of body-alienability, as discussed in KOL004 | Interview with Walter Block on Voluntary Slavery). Wenzel relies on the first fallacy in his argument that when you sell information (like the Drudge formula he allegedy has) and receive money for it, this shows that the “thing” you “sold”—the information—has “value” and is an “ownable thing”. After all, how can you trade, or sell, something unless you own it?

      • Scott R April 5, 2013, 7:53 am

        Thanks for the reply Stephan. I went back and read the updates you made to your post, but at first glance it didn’t sound like it really addressed my question. In posting my follow-up reply here I tried to search for the word I was looking for in describing a contract which had terms that were unreasonable, and in doing some Googling I amazingly enough came across a wikipedia entry which quotes you and seems to address the very question I was asking about. The wikipedia entry is titled “Voluntary Slavery” and can be found here:

        It summarizes your opinion as follows:

        “However, Kinsella takes the view that voluntary slavery contracts are unenforceable because making a contract is not sufficient to alienate body-rights. Block and Kinsella discussed their differences on this issue in the Kinsella on Liberty podcast (episode 004).”

        That then took me full circle back to your reply above (and your updates to this post) where you reference that very same podcast (episode 004). I will reply or email you again once I’ve had a chance to listen to it.

        • Crosbie Fitch April 5, 2013, 8:15 am

          Scott R,

          That link stumbles across another libertarian schism (separate from the pro/anti IP libertarian one), and that is the “natural rights are alienable/inalienable” schism.

          I argue that we cannot surrender our bodily power (the source of our natural rights) because it remains within us. To agree to surrender it is thus pretence, or even fraud. Nothing can take away our rights, not even the state. The state can only annul its recognition of them from the law.

    • PH April 6, 2013, 10:42 pm

      @Scott R 627pm,
      I can’t see much difference between a house sold subject to a restrictive covenant not to have a bonfire, a car sold on hire purchase subject to repayments, a formula sold subject to a restraint on copying, or a timeshare sold with the limit you use it only one week a year. Or a term in an employment contract forbidding smoking in the building, or a term in a trust requiring achieving the age of 21 before inheriting.

      These are all contracts that prevent you from using your mind/ property as you see fit.

  • W Baker April 5, 2013, 8:31 am


    I unfortunately found this debate at Wenzell’s site about 11:45 last night. I played it on my phone next to my ear as I lay in bed. I was thinking, and don’t take this the wrong way, that the discussion would be interesting but put me to sleep after 20 0r 30 minutes of legal or praxeology minutiae. I appreciate your work and the work of the Mises Institute, but I’m just an artist/craftsman. My reading within the deep, theoretical side of the Austrian school is about a mile wide and 2 inches deep. Contrary to a good many, well-intentioned folks in the ‘movement’, there are other aspects to life, as you well know, I’m sure. (Not just IP, the whole there are no other subjects or pursuits worth discussion or doing except liberty, Rothbard, Hayek, etc.)

    I have rubbed shoulders with the Mises Institute for a long time. I saw it when it first moved into the Business Building at Auburn and went to brown bag lunches with its early supporters on campus such as Dr. (and Mrs.) Foy in a tiny little cramped room with 10 other people. I’ve known Lew forever. And Jeff and his wife and their oldest daughter (we had moved away before too many more little Tuckers arrived). All of them, and those that surrounded them, were kind and consummate gentlemen. And most of them of them scholarly.

    All that said, I have never, ever heard anything like Bob Wenzell at the LvMI. The petulance. The frenetic, unreasoned, voluminous, patronizing, screaming that might pass for a junior high girls’ squabble in Brooklyn would have been escorted out of the building (when it was in Lowder) or off of the property in the LvMI later digs. Maybe the place has changed since I was there. I did see where Wenzell gave a reading on the fall of the Soviet Union recently and that Jeff had left for another job.

    Like I say, I don’t keep up like I should. But I do know this, either Lew is recently ill or has lost his faculties. (I don’t think so since he called me not four or five months ago.) But that fellow Wenzell is toxic and will really damage the LvMI and a good many reputations, if allowed to hang around.

    One last parting comment for what it’s worth. Don’t get into any more “debates” with folks like Wenzell. They’re not really worth it. Play with your kids. Visit your parents or kinfolk. Go fishing. Ones always comes out looking ugly when he’s been chasing and wrestling a greased hog.

    • Jeremy April 5, 2013, 9:28 am

      I don’t understand what’s going on at the Mises Institute. The last two days they ran a wenzel article and an article bashing bitcoin. It’s like they are going after kinsella and tucker. Do kinsella and tucker still have any affiliation with the mises institute?

      • W Baker April 5, 2013, 11:24 am

        Whatever Wall Street money Wenzel and his company of firebrands are bringing to the table – pure speculation on my part – is not worth the damage done by this boob, to use a favorite word of Lew’s.

        The very best case scenario of encounters like this is that it muddies the water of liberty for those who would pay attention beyond 5 minutes. – Unless I’ve missed some earth shattering, academic paper that enjoins the Rupert Murdoch-like approach to truth and freedom. The worst case scenario is readily apparent to any sentient 5 year-old.

      • Misesian April 5, 2013, 1:59 pm


        Get a grip. The Mises Institute is not “going after” Kinsella and Tucker. They publish articles on news events from an Austrian perspective such as the Cyprus “bail-in”. Hence Wenzel’s article. Sometimes students/ non scholars might get an article published about, say, the impact of a recent payroll tax increase. This is in addition to the numerous articles published by past or current Austrian masters such as von Mises or scholars such as Bob Higgs.

        Nickolay Gertchev’s article on bitcoin was an economic analysis of the nature of bitcoin. You can disagree with it but to describe it as “bashing” is unfortunate, I would think.

        The literature section and the Bastiat blog are as brilliant as ever and so on. Lew Rockwell is still in charge.

        Wenzel’s blustering has nothing to do with the Mises Institute.

        • Misesian April 5, 2013, 2:01 pm

          Correction: Nikolay Gertchev.

        • Jared April 9, 2013, 12:04 am

          I think it should make you wonder why they associate with people like Wenzel… There are some very intelligent people that are connected to the Mises Institute, but unfortunately, there are some that they associate with, such as Wenzel, Gary North, and a few others, that are borderline crazy, to include Rockwell. It’s too bad that more of their supporters lose objectivity with these guys. All one has to do is a little bit of research and a pattern emerges. I bet there is a good reason that Tucker left.

  • Stephen A April 5, 2013, 11:04 am

    W Baker,

    Thank you for you sharing your experiences and thoughts with us. Speaking for myself, I can absolutely attest that you’re correct – whatever the Mises Institute is, Bob Wenzel ain’t it. Of course it was the ideas of liberty that got me interested and excited in the first place, but had it been Wenzel or someone like him speaking the message, I doubt I would have stayed around long enough to figure that out. The LvMI has always exuded an aura of class and gentlemanliness, so to see them allow someone like Wenzel to represent them is disappointing to me. An organization long characterized by a quietly dignified and intellectually rigorous defense of liberty, while maintaining a healthy amount of good-natured humor, suddenly employing some self-loathing, thin-skinned ‘Jewish Mother’ stock character stereotype who capitalizes on cheap gotchas and guilt trips to mask sloppy and unremarkable thinking. Makes me sad.

    • Wenzel the Clown April 5, 2013, 12:47 pm

      Couldn’t agree more.

      It isn’t just that the LvM Institute’s work on the social sciences is outstanding but also that the people who develop it are serious academics with a long and rich history of like minded people behind them.

      I’ve been fooled by people like Bob Wenzel before. It’s no different from being fooled by a broken clock that happens to show the correct time.

      LvM is however no broken clock. Far from it.

      • Jared April 9, 2013, 12:25 am

        Wenzel isn’t a serious academic, he’s not an academic at all. As Stephan said, it’s likely that he never even graduated from college. All he did was read a bunch of books and regurgitate the information without even understanding it. The truth is that there are a bunch of freaks associated with the Mises Institute. Gary North, Laurence Vance, Wenzel, and Rockwell himself. There is a reason that many other libertarians shunned Rothbard and Ron Paul, or perhaps they shunned Ron Paul for his associations with people like Rockwell and Rothbard. Now these clowns are peddling some kind of homeschool curriculum. I would never let my kids read anything by especially Gary North. Look into him. These are not rational people. Actually, in my opinion, Rockwell and Wenzel essentially treat their readers as pawns. I remember a few years ago Rockwell with his hand out at lewrockwell.com asking for donations and being incredulous that he would ask, and even more incredulous that his readers actually donated to his propaganda. It’s kind of pathetic that more people don’t see it. A bunch of schemers.

  • Anand April 5, 2013, 4:17 pm

    I stopped commenting on Wenzel’s blog when he started censoring comments. I pointed out that his complaining about Kinsella’s behavior was the pot calling the kettle black since he had repeatedly attacked Tucker and Kinsella on his blog in the months leading up to the debate.

    How Lew Rockwell has managed to elevate a dilettante so high is beyond me, but it speaks to significant structural weakness in the libertarian intellectual community that it can go on so long.

    • Jared April 9, 2013, 12:37 am

      There is a much larger libertarian community outside of the Mises Institute, that has a lot less baggage and a lot more objectivity. The Mises Institute, much of the time, is off in fantasy land. They are totally unrealistic.

  • Jonas April 5, 2013, 7:21 pm

    Reading the comments by Wenzel’s hangers on at EPJ and even here and Mises.org, the biggest issue I see with promoting the anti-IP position is the reliance on the ‘what is a scarce resource’ arguement.

    General libertarian audiences are having difficulty with the semantics and understanding of this concept. The only way you can really know the concepts ‘of scarcity’ and ‘property’ as Kinsella means it, is by understanding Hoppe’s ‘Garden of Eden’ deductive thought experiment.

    Stephan, I just think it is a mistake to push this part of the arguement too far – with normal libertarians.

    User Stepehen posted this earlier…..

    “A and B agree to a contract: A agrees to share information with B on condition that B not reveal it. The contract specifies monetary damages if B shares the information. The information could be anything.

    Now, let’s assume that B breaks the contract and reveals the information to C. B is liable for the monetary damages specified in the contract. But C is not a party to the contract. Now A, B, and C know the information.

    If C uses the information to guide his action, is he violating anyone’s property rights? How can A prevent C from using the information without violating C’s property rights?”

    I always like this one, because there is no logical way out for pro-IP proponents without confirming the stupidity of their position.

    • PH April 6, 2013, 10:50 pm

      Suppose B purports to sell a car to C, but B has in fact stolen it from A. Once the theft is discovered who owns the car? It is well established that A continues to own the car. C suffers the loss, hence the phrase caveat emptor.

      In your example how can C be prevented? The answer is in the existing torts of :
      a) conspiracy
      b) interference with a commercial contract
      c) interference with prospective business advantage
      which I described in a post higher up.

      Independent discovery is protected.

    • PH April 6, 2013, 10:58 pm

      Another example.
      Suppose P who has valid title sells a couple of fields to Q. Then R comes along and starts building on them. Can R say I didn’t know of and am not bound by the contract between P and Q?

      Of course not. R is still impacted by the valid contract between P and Q even tho he wasn’t a party to it.

      • Stephen April 8, 2013, 8:55 am

        You are question begging. Patterns of information aren’t the same as cars or fields.

  • Scott R April 5, 2013, 9:00 pm

    Just thinking out loud here..

    How is the pro-IP position different than one which states that if you open up business A, and it’s the first business of its kind (or, at least, the first business of its kind in town) that you have a right to maintain a monopoly position on that type of business in town in perpetuity?

    …or, how is it different than a right-to-be-employed position? So, I work for a company doing a particular job. Now, that company decides they want to save some money, and person B comes along and says that they’ll do the same job I do for 1/2 my salary. But I was there first. Don’t I have an exclusive right to do my type of job for this company? This other person is a mere “copier” of my type of work. Surely, this company must either continue to employ me (at whatever price I think is fair) or, if they are to fire me, they surely cannot hire someone else to do the same job I was doing!

  • Jonas April 5, 2013, 10:59 pm

    Yes Scott R, its a good point you make. IP, when it is reduced to its first principles, is just combining already known facts/elements into a new and original form.

    But this basic principle also means opening a business in town that no-one has done before, is like you say, creating a new IP.

    I used this example on EPJ – of someone who opens a chicken shop on Jones Road. Opening a chicken shop is not original, and having a business on Jones Road is also not original. But combining them both is thus new and original.

    Does this mean we get to enforce our IP rights on competing businesses that open on the same street? Never in a second would the Wenzel-IP crown entertain that, but it’s the end logical result of their arguements.

    • Scott R April 6, 2013, 5:56 am

      Jonas, yes, I read your post there recently. Your post (and a comment that Kinsella made in the podcast debate) was probably in the recesses of my mind when I posted my reply above. Sorry for “stealing” parts of your idea. 😉

      Speaking of EPJ…I must admit that I am still clicking on all of Wenzel’s “gotcha” posts on this subject, because there are a *LOT* of really great, insightful, and entertaining replies. So I’d like to think that at least some people reading his blog who had been pro-IP might change their beliefs based on some of those comments. Here’s a great one someone just recently posted:

      “Ideas are discovery. You cannot own them. Even the greatest ideas in the history of civilization cannot be owned. Newton may have discovered gravity, but he cannot own the idea that gravity exists. The implication that Newton could own gravity would mean that everyone else who didn’t pay for the “copyright” for this “IP” could not obey the laws of gravity. That notion is so absurb.”

    • PH April 6, 2013, 11:09 pm

      The distinction is with IP there is a contract, and a term is do not make copies and sell the copies. The chicken shop on Jones Rd has no such contract.

      “IP, when it is reduced to its first principles, is just combining already known facts/elements into a new and original form.”
      Much of life is.

      By the way I see there are PureBarre franchises for sale. There is a term in the franchise that a franchise holder shall not open a 2nd PureBarre studio outside the franchise holder’s geographical area. Do anti IPers oppose such a restriction?

      • Scott R April 7, 2013, 10:02 am

        “The distinction is with IP there is a contract, and a term is do not make copies and sell the copies. The chicken shop on Jones Rd has no such contract.”

        But taken to its logical conclusion, under the pro-IP viewpoint, the owner of the first chicken shop on Jones Rd *could* have held a patent/copyright to his idea of having a chicken shop on Jones Rd, thereby preventing the 2nd guy from opening up another chicken shop on Jones Rd. But it gets even worse…the first owner might have never been able to open up his business, because of the guy on the other side of the world who opened up the first chicken shop, period. But even that guy may have never opened up his shop, because of some guy who came before him with the idea of having a “shop” at all. But, hey, that first guy who came up with the concept of a “shop” “owns” that idea in perpetuity, and if he decides he wants to protect it and not even license it out to anyone, then I guess everyone will just have to live with the fact that they can never open up a shop or have any types of shops in their neighborhood.

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