KOL187 | Anarchast with Jeff Berwick Discussing IP, Anarcho-libertarianism, and Legislation vs. Private Law (2012)

is in our nest

hi everybody welcome to another edition of Anna Castro for anarchy on the Internet I’m sitting in my living room

of a house that I live in in Acapulco Mexico right now and we’re really excited excited to finally have on

stephan kinsella who’s in houston at the moment and and took the time out today to speak with us and that’s a real

pleasure to talk to these two fine thanks Jeff glad to be here and the first question I always ask everybody is

how did you become an anarchist you know I don’t remember I remember the time and

roughly but you kind of forget you’re your influences right I’d say in like

11th grade of high school I was kind of a political and a librarian recommended The Fountainhead to me and that list

shrugged and so I became quickly a Randian type of libertarian but hostile

to libertarianism and anarchism for a couple years until I realized that she was wrong that I shouldn’t read people

like Rothbard etc so I read you know the law and then I started reading Rothbard and the Tana Hills and Nozick

and something between David Friedman and Robert Nozick and the Tana hills and

rothbard probably rothbard made me finally give up the ghost around let’s say 88 or so and just realized I was an

anarchist which was a liberating moment so to my mind it’s just the end result

of a consistent principled libertarianism yeah I agree with that

and so yeah you’ve been on the bandwagon for a while no that’s great and I know you spend a lot of time on areas of

contract law and intellectual property stuff and I believe you’re a lawyer is

that correct yeah I’m a practicing attorney intellectual property patent attorney but corporate law and contract

law oil and gas law that kind of law for around 20 years now so I have a deep

interest in you know legal theory and in mixing it with Austrian theory and with

libertarian theory as well that’s great and one of the questions that a lot of

people always ask when they when you get into the topic of Anarchy is how would law work I wonder if you could give them

sort a few minutes on generally how it would work in a free market yeah that’s a

that’s a long topic I actually give a speech on that in Turkey at haunt our monopolist property in freedom society a

few months ago which will be online shortly at my website and I’ve written

about legislation and law and things like this so it’s a long topic but kind

of the long and short of it is I believe that in any free society you’re going to get there only by some kind of natural

process by which most people have some sort of libertarian ethos or ethics I

mean you’re not going to have a libertarian Society unless most people become libertarian how that happens is a different question whether it’s

educational or just experiencial or evolutionary or AG rest’ is a different

question but if we assume that we’ve somehow reached some roughly libertarian society it’s only because most people

have become or have moved to a more libertarian point of view and these people are all going to prefer a

peaceful society to one that’s full of violence and strife and fighting they’re

going to be the type of people who will prefer to have rules about who can use

what among scarce resources that people otherwise would have to fight over this is why property rules arise in society

that we have now and in a libertarian society they would arise the same way except I believe that the people that

focused on what the rule should be would be more consistent about what they are and they would be more sincere about

looking at you know what’s really the just solution here so basically law I view law as a body of

rules that are a practical body of rules designed to allocate the right the legal

right to use or the ownership of contestable or rivalry scarce resources

that otherwise people would have to fight over so law is just a concrete

body of rules that permits human beings that want to cooperate to be able to

cooperate to get along in society to produce peacefully and you know productively in society so I guess what

your one question I’d like to pose based on what you just said is that so

in order to have a free society people really need to understand these concepts of of libertarianism is that correct and

if so so it really won’t be able to happen unless you have the majority of people in that society really understand

these concepts is that is that correct I don’t know if it has to be explicitly understood it has to be you know

ingrained in some kind of way I think it already is to be honest I think the vast bulk of humans are already kind of quasi

libertarian because most people if you ask them if they believe in if they

value human prosperity if they valued cooperation and productivity and peace

that’s just as a general matter they would agree with that the problem is they’re economically illiterate and they

don’t understand that if you have these basic values the only way to achieve them is to have basically a free-market

order of peaceful reasonable rational property rules allocated and applied

consistently so the main problem people have is they’re not consistent and that’s primarily because they have jobs

and they’re they’re farmers or they’re that educated or they’re just not scholars or they’re not spending their

entire lives thinking about consistency but one thing that gives me a little bit of hope although I’m kind of a pessimist

like you perhaps are to some degree is when I think about the attitude today

compared to the attitude of 30 or 40 years ago towards central planning and

communism and although we are creeping towards it right we if you ask your

average even Obama supporter or you a favor of free enterprise they would maybe reluctantly they would admit yes

basically people understand on a widespread basis that command economies cannot work that central planning and

communism don’t work and that we need some free enterprise they might they may want to limit it etc but so the question

is and and if you contrast that to someone forty years ago you’d find a lot more utopians and idealist in the West

who would be for outright socialism and communism now what changed I think what change was

the fall of Russia in 1991 or 91 ever it was basically it was a teaching moment

now it didn’t make people more economically aware or or illiterate in a

theoretical sense but it they sort of you know adopted or adapted they

incorporated the idea they kind of know now that central planning won’t work and so my hope is that something similar

will happen over time as the free market continues to grow despite the state’s

attempts to suppress it I mean that’s my hope as the internet grows decentralization grows as you know

quicksilver capital that phenomenon continues maybe you know extra planetary

human societies develop as something keeps happening over time I just hope

that the state recedes over and over and people gradually regard it as ridiculous as may happen for example with religion

over time I don’t know I mean maybe people someday will regard maybe only nine only one percent of people will be

religious and they’ll regard the old times as the superstitious times maybe something similar will happen with with

the state so that’s the only kind of long term we have hope I have is that economic literacy will happen

empirically because of just seeing how the market works yeah yeah I think that

we actually have a a bit of luck coming towards us because I think most of the Western nation-states are in a state of

collapse and are serious state of collapse and the the financial monetary system is it’s basically already almost

dead and that collapse could come as quickly as in just the next few years so that’s one of the things that I’ve been

trying to do is try to spread this message as much as possible because the more people who understand what we’re talking about here after that system

collapses the better chance we have that we can move towards a more free society where as it as it is today for the most

part if they all the systems collapse the u.s. teller collapses people are out in the streets they’re rioting most

people will blame it on capitalism because that’s what they’ve been kind of been told by that they lived in a in a

capitalist environment when it actually really isn’t it’s more fascist and communist and then capitalist at this

point in the US the US government taxes and regulations and everything there’s over 500 federal

agencies and you know you obviously in capitalism you don’t even have a central

bank that’s not a part of capitalism that’s actually more something that communism does yeah absolutely I’m I’m

I’m not that sanguine about the prospects of the rebirth of some kind of society if there is a collapse like that

because I don’t think the economic literacy is there yet so I think it could be even worse

although there’ll be opportunities and pockets for some may be successful areas

to emerge I don’t know so I would I would prefer it to happen gradually and

evolutionarily over time so that there’s time for people to I mean you can’t have

this Marxian utopianism hoping for new Marxist man or a new communist man new

libertarian man you can’t expect human nature to change and I don’t think it will change until we reach some kind of

weird AI or singularity stage which I’m also skeptical of but but I do believe

that people can learn over time and you know I think it’s you know if you think about Europe all the students that have

been your railing or interrailing with each other for 20 30 years now 40 years now it’s probably more unthinkable to

them to you know for Germans to bomb for the French and the English because they have friends they’ve been going to

colleges each other you know they’re there and I think the Internet’s providing a similar phenomenon and so

does the sort of internationalization of commerce and trade and students traveling around and people commuting

all over the world and traveling hopefully over time the idea of war the

idea of nationalities and nationalism would just become more and more you know

ridiculous to people and receding to the background is sort of a minor thing so that’s my only hope

I don’t know I don’t know what’s going to happen if we have the kind of collapse that some people are predicting

yeah yeah no one knows and they better that’s why it’s going to be so interesting and possibly quite dangerous

and then for people who are preparing for a lot of these things i really suggest

you you start looking into some of these things i get some of your assets into precious metals if you’re gonna live in

the US store some food in your house get a gun if you can get out of the out of

the West completely because that’s gonna be the real epicenter of the collapse in my opinion I think it’ll come in the next five to ten years so and it could

come as quickly as a couple of years so you really got to start getting your ducks in order but this would be totally

remiss if I have stephan kinsella and our cast and we don’t talk about intellectual property you’re one of the

top mind set people of the intellectual

property you’re you’ve written a lot about it you talk a lot about it why don’t you for for someone who’s sort

of new to intellectual property and and or even anarchism why don’t you sort of

lay out a general view of your thoughts on intellectual intellectual property okay that’s that’s a good question and

I’ll kind of go back to your previous question about law to you because it ties into that there’s a couple of things here it’s the question of what

law is and how loss should be made and I mentioned earlier that law is a set of rules that are designed to allocate

control of scarce resources to certain designated owners so as to avoid conflict and to permit the productive

use of those resources in society now in a sense all legal systems believe in

property rights in this sense because in every legal system whether it’s communist or fascist or welfare state or

or what-have-you communitarian kibbutz mixed economy let’s say fair capitalism

whatever they’re in in any given system there’s always an answer to the question

of who has the legal right to control this resource whether the answer is this

federal agency or whether it’s this tribe or whether it’s this recipient of

welfare gets to control the money that’s given to them or whether it’s whoever the libertarian answer which is

different from all others is that the answer to that question is basically the Lockean question is the

owner of a given resource is whoever was the first one to use it or someone he’s transferred it to contractually that’s

basically libertarianism it’s locking in homesteading of unknown resources plus

contract okay and plus a few other subsidiary rules like if you commit a

tort or a crime then you could lose property rights and that way too because in favor of the victim so but you

perform some action as an owner to acquire ownership or to transfer ownership to someone whether that’s

contract or a tort or a crime so law is just the concrete body of rules that

kind of systematizes this body of rules that people have developed in society

now the question is how to where does law come from and it comes from this desire of humans to get along

cooperatively peacefully and there’s no reason that these body rules can’t emerge in a way organically you could

say spontaneously although I’m not a fan of that Hayekian term but without central control and crucially without

legislation nowadays everyone thinks of law as being whatever the government

says it is so it’s sort of a statist or pro state view combined with what’s

called legal positivism so in other words the idea that everyone is used to now is that the law is what’s written

down in a book and that was decreed or passed or enacted by a quote you know

legitimate legislature of a government so that is what everyone is used to now

even a lot of libertarians so for example the income tax protesters that they’ll say that in the US the income

tax is not really mandatory because it’s not quote a law and when they say it’s

not a law they’re talking about what the positive law is what legal rules the government is enforcing by force and if

you say well it is a law because if you don’t pay your income tax you will go to jail like urban ship is in jail now and

that’s what law means law is the the rules that are enforced with the force

of law and they’ll say well show me the law and they want you to point to a statute that shows in clear black and

white English that it says if you don’t pay income tax you’re gonna go to jail now if you’re a sophisticated attorney you

can actually do this because there are income tax codes and laws that end up

showing that you will go to jail but the point is even if you couldn’t do that it’s still that’s the way the courts

interpret it and the courts are going to put you in jail if you don’t do it and the insistence on show me the law in a

written the law books they call it like like Hicks really or like you know like

rubes is a legal positivist mentality of thinking of law is what the legislature

decrees instead we need as libertarians and it’s free men to think of law as

being this body of the body of rules that are the just way to allocate

property rights and then we can contrast that with the the body of legal rules

that the government in a given area actually enforces and we can say here’s

an ideal system of law and here’s what the real system of law is and to the extent the real system of law deviates

that’s why it’s unjust so unlike say liberals modern American

liberals who are basically a legal positivist and they have no standard of rights outside of themselves which is

why they retreat to what the courts say in a way they actually are almost self contradictory when they criticize let’s

say that the Roe vs. Wade decision why so that they uphold that one but they if they criticize a Supreme Court decision

what on what basis are they criticizing it or let’s say they disagree the Second Amendment of the Constitution how could

they disagree with it because there’s no higher standard of law in their minds to compare it to they don’t really believe

in natural law they are basically legal positivist but the conservative types the libertarian types even to some

degree in my view are also legal positivist in in in a further level removed because they do say they believe

in some kind of natural law that is a higher law than even the Constitution so

for example if the Constitution permits taxation or conscription then they would

say to hell with the Constitution it is immoral and wrong because it violates what we would call libertarian law well

where does that come from well a pen differ on this but most would say well there’s a higher law source but when you

just push the level back and you look for another source so you know your modern liberal would say the source of

laws of legislature well the religious conservatives say no the source of law is God or the or the structure of nature

well they’re both looking for a source of law and when they do that in my opinion they’re confusing the nature of

law and the nature of norms and moral reasoning with the physical world and

this is a mistake that’s been going on for a century or two now and it’s what Hayek and Mises call scientism okay so

scientist em is the mistake of trying to treat every phenomena that we study

under the rubric of the Natural Sciences which is you have to formulate some kind

of causal law that’s testable or at least falsifiable then go do repeatable experiments and see if you falsify it so

then all your knowledge is continually evolving but it’s always evolutionary

this is what hiya what Milton Friedman did with his positivist positivist view

of economics where he would view they’ll say the law of supply and demand or the minimum wage you know the idea that

minimum wage causes unemployment or the idea that inflating the money supply causes prices to go up he would call

those contingent laws that we have to test by experiment this is what this is

what has led to the modern day empiricism and econometrics and the morass the economics has gone into

whereas the Mazie’s ian’s would say that no we can know for sure that if you

increase the money supply everything else being equal it will tend to cause prices to go up you can know this a

priori without having to study it so going to onto a little tangent here but

my point is if you want to understand what law is you need a clear separation in your mind between laws that are

designed to govern human behavior which is called teleology right or norms rules

and laws of physics so for example if you and I in a community agrees that it

is impermissible or wrong for someone to commit an a certain act

of theft or a certain act of murder or rape now we’re not saying that’s a physical causal law we don’t need to do

a test to see if we’re right about that in fact we can’t do a test about it I mean what are you gonna do let a bunch

of guys loose and rape some rape some women and see see what see if God

strikes you dead I mean it’s just not an experiment it’s a moral view that is based upon your fundamental moral

feelings so that is what law is now on to anarchy so in my opinion the proper

libertarian view on law whether you’re a man or kissed or an anarchist is to be opposed to legislation as a means of

making law law comes from a decentralized like a bunch of judges or

private arbitrators or whatever overtime trying to apply these basic precepts of

justice to concrete disputes among people and over time a body of rules develops so the libertarian even if

you’re not an anarchist ought to oppose at least in most cases the use of a legislation as but as what causes law to

emerge so that’s why we need to stop equating law with what the current

legislature has decreed number two so it on that ground alone if you’re opposed

to legislation you would be opposed to patent and copyright because both are purely artificial legislated schemes no

different really than you know the Social Security Act or Obamacare or the

Americans with Disabilities Act or whatever arbitrary artificial legislated

scheme you want to think of that is clearly under Batarian now if you’re an anarchist that’s another reason to

oppose an electric property because you would never support a legislature because that’s an arm of the government

or the state and legend and copyright can only come about through legislation

which is an arm of the state so if you’re against legislation or if you’re against the state you have to be against

patent and copyright right off the bat but the case against patent and copyright which are the primary two most

evil and destructive forms of pet intellectual property doesn’t rest upon

being opposed to legislation or against the state although those are really strong supporting arguments even if you

think legislation is one way to help make law even if you’re not an anarchist you’re just a min are kissed or a

limited government type the case against IP is primarily that IP represents a

rule by the government that gives the holder of this so-called property right

the patent or the copyright gives them the right to go to a government court

and use physical force of the state goons against someone else who has not

committed an act of trespassed against view that’s the fundamental problem with it so for example if I have a patent on

a new mousetrap design I can get the government to use force against someone

else selling a mousetrap that I think is too similar to mine and make them stop

making that so I’m using force to tell them you can’t use your body in this way you can’t use your own property in this

way it’s the same thing with copyright with copying a song or a movie or a design or whatever in all these cases

the government has given to the IP holder what I call a negative servitude

and legal terminology it’s it’s a legal right to to veto someone else’s use of their own property so I can go and tell

you Jeff you are not permitted to use your mouth or your hands or your

printing press or your factory in the following way and if you do it I’m gonna

put you in jail or take millions of dollars from your bank account with under the threat of force from these

state goons that are in my pocket that’s the fundamental problem and the fund and the typical response of the IP proponent

is that is what it’s well property rights are not absolute and I’m like

really seriously is this your argument that you were willing to invade my property rights because property rights

aren’t absolute I mean by that argument you could you could condone anything I mean you could have some guy raping a

girl and say quit complaining after all proper right or an absolute I mean just because

property rights are an absolute which I don’t even think has a meaning to be Miya be honest this is just the the

claim of a looter anyone who says property runs at property or rights or an absolute hold on to your wallet

because they’re coming after it right so the fundamental problem IP so let me let

me go into one other thing most advocates of IP say that we there’s a

utilitarian basis for it that is the government should come in tweak the rules of property so that innovation or

creation is incentivized by the lure of monopoly profits profits that you can

charge with this monopoly that the government gives you so that we get more

creation out of it so the government’s going to come in and grant these rights which amount to taking property rights

of other people and the theory is that it’s going to incentivize a lot more artistic and inventive creation than

otherwise but the fundamental problem with well there’s so many problems with

that line of reasoning number one that’s not how we make decisions about what’s just and right and wrong and unjust we

don’t sit there and say let’s have a government that’s going to twiddle property rules from day to day to try to

maximize some arbitrary goal that they just came up with but even if you go along with that and even if you omit the

Austrian problem that you cannot add and subtract values in other words you can’t

sum up these values in society so if a patent law hurts me but hurts him well

how do we know if there’s a net value to society and even if there is a net diet to society why did you justify the harm

to me how am i ever made whole so there’s these problems but the fundamental problem is they claim that

they believe in this utilitarian logic they claim to know that the patent and

the copyright system create this net wealth but they have no evidence for it none I mean none and when you ask them

they just say well it’s obvious or something like that and all the studies that come out keep concluding that we

can’t figure this out or we can’t prove it or it seems like from all the data we have that the patent in

the copyright system actually impose huge distortive and net economic loss on

society this in addition to the loss of freedom people going to jail

the government using copyright to impose censorship and controls on the Internet imposing internet controls and lots of

freedom through SOPA and PIPA controls and upcoming treaties and things like this so these are basically completely

terrible tyrannical laws rooted in protectionism mercantilism and

censorship that the government uses to ratchet up controls of the internet

taking away civil liberties and reducing economic gains for everyone and

entrenching monopolies oligopolies reducing competition it’s just one of

the worst institutions in society i’ve ranked these things i think it’s about number 6 it’s under the Fed war taxation

government schooling a couple things like that in the drug war but other than those it’s about the worst thing in

society and unlike those top 5 things which libertarians all see is evil libertarians have been deluded into

believing that this number six top bad thing that we have in society is one of

the best is actually a legitimate type of capitalism or free markets just because the government has used

propaganda and called it intellectual property when it didn’t used to be

called that in fact you know these things originated in laws called the statute of monopolies the government

used to be honest in describing these these things but now they’ve they’ve

resorted to propaganda to sell them and libertarians have bought into it and it’s got to end we’ve got to reject

Pratt and copyright root and branch completely immoral completely unlimber terian completely unnecessary they

should not be reformed they should not be phased out they should be abolished tomorrow so end of diatribe yeah I agree

I agree completely and if only we could somehow do that I don’t know how we’re going to get to to that stage especially with so many

people have so much interest in that system obviously a lot of companies own patents and they have all kinds of

advantages over other companies it actually keeps out competition and in most things which is a really bad thing

for society as a whole and it’s really is too bad that’s you know that’s that

we have this system and one of the six things about the system I always found as a businessman is I never wanted to

patent anything I never wanted trademark or copyright anything I don’t have any copyright on anything I write or on this

video or anything but if I didn’t do some of those things like trademark of a

family right you would actually cause me problems because then someone else could go in trade markets and then I can’t use

it anymore because they’ll come to my house with guns and throw me in a cage so yeah the system is just a horrible

system and it’s just so amazing to think about the amount of innovation there would probably be in the world today if

we didn’t have that system we violence in flying saucers or he’d Noah you know

just things like I’m sure every car we probably wouldn’t have cars at this point we’d be so advanced but probably

each car would have its own small nuclear reactor in it just like the the giant US Navy ships do and they can run

for 20 years without ever having to fill up and stuff like that but because of all these laws and regulations and and

and what you just brought up about intellectual property and patents and all that sort of thing it really limits

our advance in technology and in everything that we do no I agree

completely and as I was saying you actually do have a copyright in your videos you can’t help it that’s one of the problem with copyright is it’s

automatic I mean you can’t even get you not only is it automatic you can’t even get rid of it you can’t get rid of the

copyright you have in this video right now so you know and I don’t like you

can’t blame businessmen I mean look let’s say you are a very scrupulous Jeff Tucker has opposed to us what he calls

scrupulous ‘ti like attacking companies for working within the existing system like you know bike driving on the roads

or whatever I mean what are you gonna do not use the roads because they’re public and then you’re just gonna die and all

your competitors would what you know and so it I don’t blame companies for having

trade you can’t blame them for having copyrights because it’s not their fault they can’t you can’t help having copyrights I can’t even blame them for

acquiring patents because if you don’t acquire them then you’re vulnerable and naked to a lawsuit by a competitor who

does have patents and if you don’t have something to sue them back with then you’re screwed you know it’s like

refusing to hire lawyers because they’re licensed by the state when you need to hire a lawyer to defend yourself in a

lawsuit so just for pure survival and getting along in the real world you have

I don’t know if it’s compromised I don’t think it’s compromised I think it’s look I actually don’t think companies should

sue each other for patents I think it’s immoral to file a lawsuit for patents

aggressively although I don’t know how you’re going to expect that a large publicly owned company is not going to

do that I mean let’s let’s take Apple for example it’s owned by millions of shareholders the Board of Directors

makes decisions the executive the officers make decisions the you know if

they have a patent and they can sue Samsung for it and it’s worth 10 billion dollars what are they supposed to do say

well I am an executive and Apple and I don’t personally believe in patents because I’m a libertarian so I’m not

going to use this legal asset to make my shareholders 10 billion dollars well I guess you could do that but you’re gonna

get fired or if you don’t do it and you’re on the board of directors you might get sued and during a derivative action for you know lack of fulfilling

your fiduciary responsibilities so the most ethical people if you say that’s an

ethical duty they’re just not gonna run for they’re not going to be in these jobs so they’re gonna be fulfilled by as

Hayek said the worst the worst are gonna get on top so I don’t think you can

expect moral exhortation to keep companies from taking advantage of their legal rights me personally I won’t

defend a company to aggressively use IP but I I’m not the norm but even I would

help companies acquire patents that they could use defensively later on but on

the other hand you could view patents as like a gun right like Smith & Wesson sells guns

now do they know what the buyer is going to use the gun for or the the buyer that buys it from their buyer they don’t know

the gun can be used for good purposes or or evil purposes and just because

something has a potentially evil use as well as a good use doesn’t mean that it’s wrong to manufacture or sell it I

serve you patents like that now but except that patents would be totally

unnecessary in a patent free world they were just the need would go away just like in a crime free world a lot of guns

would be less necessary so in a sense the existence of the patent system makes

it necessary to arm yourself with patents and then that’s going to give rise to the temptation to use them just

like the existence of crime private crime I’m talking about even in a stateless society gives rise to the

incentive to have guns for self-defense right in a totally anonymous a pacifist

but in a world of complete human you know peace and tranquility we wouldn’t

have guns except for hunting maybe we wouldn’t have them for self-defense it would be it would be like in the old

days when people didn’t lock their doors on their houses or their cars because they didn’t think anyone was gonna bother to break in so yeah excuse me

they say power corrupts and power the state is power and and it’s sad how with

all these systems how it truly corrupts all of society and the Anita’s pointed out that even us as businesspeople we

don’t want to use the system at all but we’re forced into it we were corrupted by the system to go into this very

basically evil system that is is holding back humanity but I think we’re getting

a little leave you have to go pretty soon and and I don’t want to keep you

too much longer do you have a website or a blog or anything that we can point people to yeah a lot of my uh my media

my speeches my articles well everything’s pretty much on stephan kinsella calm ste pH AM kinsella calm

and most of my IP related stuff it’s also on my blog for the

Centre for the study of innovative freedom which is c4 the number 4s is org

greats and thank you very much for everything is very enlightening and I for one find it very interesting all

this talk about intellect intellectual property and and so it’s really great to talk to you personally and and I hope we

can do it again sometime I’d love to Jeff thanks a lot all right thank you that’s all for Amma cast your home for Anarchy on the Internet peace

love and energy