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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 (Feb. 6, 2018), 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.

see also James Stern: Is Intellectual Property Actually Property? [Federalist Society No. 86 LECTURE]

Transcript below.

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.


Intellectual Property: A First Principles Debate

Stephan Kinsella and Kristen Osenga

Federalist Society POLICYbrief

Feb. 6, 2018


KRISTEN OSENGA: Intellectual property, or IP, are rights that are granted by the government to encourage innovation and creativity.


STEPHAN KINSELLA: The term was originated to come up with a defense of certain types of monopoly privileges, primarily patent and copyright law, which had existed for a few centuries in the West.  Intellectual property is not property in the same sense as normal property rights because normal property rights are designed to protect scarce resources, things in the world that we could have a conflict over.  This includes our bodies and other resources in the world—tangible, material objects.  Property rights arise as a social mechanism to allow us to use these resources cooperatively and peacefully and productively with each other.  But intellectual property covers ideas and non-scarce resources, patterns which can be infinitely copied and multiplied.


KRISTEN OSENGA: One of the benefits of having property is the ability to keep other people out.  I can let people that I don’t want to come to my house know that they can’t be there.  And patents and copyright provide the same sort of, what’s known as, exclusive rights that private property does that you can say you can’t trespass on my invention, and you can’t copy my new creative work.  So the difficulty when we look at intellectual property as property is how do we know where the boundaries are.  But as far as what are our rights, the idea that we can keep people out—that’s exactly like physical property.


STEPHAN KINSELLA: Legally, the proper way to understand intellectual property rights is a negative servitude or a negative easement, and if you understand what a negative easement is, it gives the holder of that easement a right to prevent the owner of existing property to use it the way he sees fit.  And these are perfectly legitimate if they’re granted voluntarily like a restrictive covenant in a neighborhood.  But in patent and copyright, the government grants these monopoly privileges to holders of these ideal rights, and it allows them to stop other people from using their bodies or their other property as they see fit.


KRISTEN OSENGA: There’s a number of philosophical justifications for intellectual property, but one of the clear ones is John Locke’s principle, the idea that if you put your effort and mix it with nature, you should get property rights in a resulting object.  If you take a tree and turn it into a barrel, the barrel should be yours, and that’s the same idea with intellectual property.


One of the things intellectual property does is it allows you to get exclusive rights on what you invent.  And with those exclusive rights, you can either keep other people from doing it and manufacture the invention yourself, or you can license it to a patent licensing firm.  The inventor who has spent a lot of time and money in the uncertain activity of inventing can recoup some of those costs and some of those expenses.


STEPHAN KINSELLA: So the question is not whether a given policy or law incentivizes innovation.  The purpose of law is to protect property rights.  We have to recognize that in today’s world, even though we have copyright law, piracy is rampant.


In today’s 2017, artists have to deal with the fact of copyright piracy, and they have to come up with business models to work around that.  But then the question is, absent patent and copyright law, what protections would they have?  Well, first of all, they have property rights like we all do.  They have the right to own their own studio or their own printing press or their own machine shop and make inventions.  They have the right to engage in commerce and sell their goods.  You can sell tickets at a concert.  You can sell a CD if you want to.  There’s nothing prohibiting you from selling a CD just because you don’t have a copyright.  It’s just that other people could sell a copy of it too, so you have competition.


KRISTEN OSENGA: There are a number of things that are happening right now that are causing uncertainty in the patent system, devaluing patents, and decreasing the public’s confidence in the patent system as a whole.  The Patent Trial and Appeal Board is getting rid of lots of patents, invalidating lots of patents, and a number of these patents are on really great, innovative technologies.  So what I would do to reinvigorate the patent system is change the way that bad patents can be invalidated by making it more certain and less harassing for innovators and patent owners.


STEPHAN KINSELLA: So the primary reforms I would make would be to patent and copyright.  And the primary reform would be to immediately and completely abolish both patent and copyright law.  I think we would instantly be way better off in terms of innovation and freedom.  Just because something has been in place for 200 years or so doesn’t mean it’s just.  When people copy, they’re learning and they’re emulating what people do.  We have to not be afraid of competition.  We have to embrace private property rights, and we have to understand that state-granted rights to protect you from a competitor are the opposite of a free market, and they undercut private property rights.


KRISTEN OSENGA: With patent rights, what we’ve gotten is a ton of innovation over the last number of centuries, great inventions, fantastic inventors, that are worthy of being protected, and we’re all enjoying the results of this activity.  If we don’t have this strong patent system that has allowed for this level of innovation going forward, we might get less innovation and a lot less cool toys to play with.


{ 5 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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