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KOL235 | Intellectual Property: A First Principles Debate (Federalist Society POLICYbrief)


Kinsella on Liberty Podcast, Episode 235.

This is a short video produced by the Federalist Society, featuring me and IP law professor Kristen Osenga (I had met Osenga previously, as a co-panelist at an IP panel at NYU School of Law in 2011). I was pleasantly surprised that the Federalist Society was willing to give the anti-IP side a voice—more on this below. To produce this video, Osenga and I each spoke separately, before a green screen, in studios in our own cities, for about 30 minutes. The editing that boiled this down to about 5 minutes total was superbly done.

From the Federalist Society’s shownotes on their Facebook post:

Why does the government protect patents, copyrights, and trademarks? Should it? Kristen Osenga and Stephan Kinsella explore the concept of intellectual property and debate its effect on society as a whole.

Kristen Osenga, a professor at the University of Richmond School of Law, and Stephan Kinsella, author of Against Intellectual Property, explore the concept of intellectual property and debate its effect on society as a whole.

Differing Views:

I was pleasantly surprised that the Federalist Society was willing to give the anti-IP side a voice, given that many libertarian-related groups either outright favor IP or refuse to condemn it or to allow abolitionist voices.

Since the dawn of the Internet in the mid-90s, the effects of patent and especially copyright law have become magnified and more noticeable. Thus more libertarians began to direct their attention to this issue. Gradually, scholarship emerged and the consensus began to shift over the last couple decades from an inchoate Randian pro-IP attitude, and/or apathy, to a interest in and opposition to IP law. It is safe to say that most thinking libertarians, most Austrians, anarchists, and left-libertarians, are now predominately opposed to IP.  (See “The Death Throes of Pro-IP Libertarianism,” “The Four Historical Phases of IP Abolitionism”, “The Origins of Libertarian IP Abolitionism”.)

Accordingly, many libertarian groups are now explicitly anti-IP or at least are willing to host speakers and writers with this view, such as: the Mises Institute, and various Mises Institutes around the world (Sweden, Brasil, UK, etc.); the  Property and Freedom Society; and others, like the IEA (see Stephen Davies’ Intellectual Property Rights: Yay or Nay); the Adam Smith Forum-Russia, which had me present a sweeping case for IP abolition; and the Adam Smith Institute in London, which also has featured strong voices in opposition to IP (Adam Smith Institute: Do not feed the patent trollIntellectual property: an unnecessary evil). FEE has featured my work and that of other IP abolitionists, like Sheldon Richman. Even the Mercatus Center has promoted strong IP reform, although not outright abolition (see, e.g., Tom Bell, What is Intellectual Privilege?).

And, I’ve been invited to speak against IP in a number of fora, podcasts, and radio shows—PorcFest, Libertopia, Students for Liberty, FreeTalkLive, and so on. Even John Stossel’s Fox show featured me and David Koepsell arguing the abolitionist side. So. This is good progress, and parallels the increasing interest in IP by libertarians and their increasing opposition to this type of law.

But not all libertarian groups, sadly, recognize IP for the unjust state institution that it is. The Libertarian Party, for example, shamefully takes no stance on IP in its platform. This would be like failing to oppose chattel slavery, conscription, or the drug war in a society where these things were going on. The Cato Institute usually presents pro-IP speakers or those who talk about “reform” (see my post Disinvited From Cato). The Independent Institute has featured the pro-IP work of William Shughart (see Independent Institute on The “Benefits” of Intellectual Property Protection). Other so-called free market groups have also been bad on IP: Austrian Economics Center, Hayek Institute, Other Liberal Groups Come Out for Stronger Intellectual Property Protection. The tech-libertarian groups, like EFF, fulminate against “junk” patents and patent trolls but do not oppose IP itself. Even the tech-libertarian defenders of poor Aaron Swartz, driven to suicide by the threat of draconian copyright criminal penalties, shamefully, disgustingly admitted that he of course needed “some punishment.”  And of course all the Objectivist groups are rabidly for IP (see e.g. work by Adam Mossoff).

As for the Federalist Society—I did participate in an IP debate at a local chapter (Federalist Society IP Debate (Ohio State)), and their Intellectual Property Practice Group Newsletter did reprint one of my early short articles against IP (Is Intellectual Property Legitimate? , vol. 3, Issue 3 (Winter 2000)). But overall the Federalist Society has presented basically the pro-IP side (More defenses of IP by the Federalist SocietyFederalist Society Panel: Undermining or Preserving Property Rights? The New Administrative Patents). I pestered them over years to include more balanced treatment in their bibliography, to no avail (Anti-IP Material Needed in the IP Section of the Federalist Society’s “Conservative & Libertarian Legal Scholarship: Annotated Bibliography”).

So I’m very pleased they finally chose to present the anti-IP side alongside the conventional arguments.




{ 4 comments… add one }
  • Brent Kingi February 7, 2018, 4:27 pm

    Yeah, they did do a good job with the edit. My favorite video of yours, discussing plausible hypothetical business models to make money writing a book or doing a movie, was the discussion you had with your friend, Sandeep, at your house, if I remember correctly.

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