Kinsella on Liberty Podcast, Episode 253.
I spoke today on “A Libertarian’s Case Against Intellectual Property,” at the Federalist Society, University of Berkeley-California. It was well-organized and there was a perceptive and interesting critical commentary by Professor Talha Syed.
This is the audio I recorded on my iPhone; video below; line-mic’d audio here. The youtube version (audio here) and the line-mic’d version both truncate about 30 seconds too early. My own iphone version (which is used for this podcast) includes those extra comments, and this is included in the transcript as well, below.
My speaking notes pasted below.
A Libertarian’s Case Against Intellectual Property
Kinsella Law Practice, Libertarian Papers, C4SIF.org
with critical commentary by Professor Talha Syed
UC-Berkeley Law School Federalist Society
Oct. 11, 2018
General background: A Selection of my Best Articles and Speeches on IP
- Intellectual Property:
- Legal rights enforced by law having to do with products or creations of the mind, the intellect
- patent, copyright, trademark, trade secret
- semiconductor maskwork, boat hull designs, database rights, moral rights, right to one’s “likeness,” reputation rights (defamation, libel and slander, law)
- punishment for depicting religious figures in drawings
- “cultural appropriation”
- Why IP?
- Ayn Rand “Patents are the heart and core of property rights.” … “Intellectual property is the most important field of law.”
- US Commerce Dept. Study 2012 purporting to show that “intellectual Property-Intensive Industries” Contribute $5 Trillion, 40 Million Jobs to US Economy” [USPTO/Commerce Dept. Distortions: “IP Contributes $5 Trillion and 40 Million Jobs to Economy”]
- 2018 Nobel Laureate in Economics Paul Romer: economic growth — and the technological innovation it requires — aren’t possible under perfect competition; they require some degree of monopoly power [patents] [Douglas Clement, Creation Myths: Does innovation require intellectual property rights?;
- Some studies: patent trolls alone cost $29 billion and total costs much higher globally ($1 Trillion/year, or more, given the “cumulative” effect of innovation) [Reducing the Cost of IP Law;Costs of the Patent System Revisited]
- US continually foisting higher patent and copyright protections on other countries via trade agreements and treaties, e.g. NAFTA, USMCA, TPP (“IP Imperialism”)
- Copyright distorts culture and threatens Internet freedom (censorship, takedown notices) [“Death by Copyright-IP Fascist Police State Acronym”; “SOPA is the Symptom, Copyright is the Disease: The SOPA Wakeup Call to Abolish Copyright,” “Where does IP Rank Among the Worst State Laws?”, “Masnick on the Horrible PROTECT IP Act: The Coming IPolice State” ]
- It’s important to get this issue right
- I’m an IP lawyer and also a libertarian since high school (1982) [How I Became A Libertarian]
- My IP struggle: problems with Rand, researching the issue
- Tom Palmer, Wendy McElroy, Hans-Hermann Hoppe, Mises
- Finally realized IP is unjustified around the time I passed the patent bar (1994)
- Given my knowledge of IP law I spoke and wrote more and more on this topic, even though I’m more interested in other areas of libertarian legal theory
- But I’ve found that sorting out this issue is crucial and helps sort out many other legal and policy issues
- property and rights theory, Contract, fraud, causation and the law, and the nature and source of wealth and human prosperity [See my upcoming book, Law in a Libertarian World]
- The question is not “Is IP a good idea?” or “What kind of IP protection should we have?” but rather What type of laws should we have; what laws are just, or justified?
Purpose of law and property
- The question is not “is IP a good idea?” or “what kind of IP law should we have?”
- Garden of Eden
- Scarcity, conflict [Hoppe, TSC, chs. 1-2; Of Private, Common, and Public Property and the Rationale for Total Privatization”]
- All rights are property rights [Rothard, Human Rights as Property Rights]
- Law is a set of rules enforcing property rights
- To permit conflict-free use of resources
- Allocates ownership of a contested resource in the case of a dispute
- Basic rules:
- Self-ownership, for bodies
- for previously unowned, scarce resources:
- original appropriation (homesteading)
- contractual transfer
- Transfer for purposes of rectification (restitution)
- These give rise to a body of rules for property law, torts, contract, fraud, and criminal law
History of IP
- Sybarris cooking competition 500 BC
- History: patents used to grant monopolies. Statute of Monopoly 1623.
- Copyright resulted from state and church censorship of the press, culminating in the Statute of Anne 1709 [See Fogel, The Promise of a Post-Copyright World]
- then the US Constitution in 1789: ““To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
- Originally seen as exceptions to natural law and property rights, as privileges granted by the state to encourage innovation or artistic creation.
- Defenders began to refer to it as “intellectual” “property” rights. Modern beneficiaries of IP are Hollywood, the music industry, and the pharmaceutical industry. [“Intellectual Properganda”]
Arguments for IP
- Utilitarian and deontological
- Problems with utilitarianism
- In general: Austrianism/subjective value
- Ethical problems with utilitarianism
- The empirical evidence itself
- Burden of proof: the Constitution
- It was just a “hunch” at first
- What it has to show: value of innovation and cost of the system
- What it has shown [“The Overwhelming Empirical Case Against Patent and Copyright”]
- Fritz Machlup, 1958: “No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society. The best he can do is to state assumptions and make guesses about the extent to which reality corresponds to these assumptions. … If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one.”
- François Lévêque and Yann Ménière (French economists, 2004): an economic analysis of the cost and benefits of intellectual property “is no more within our reach today than it was in Machlup’s day” [1950s].
- Boston University Law School Professors (and economists) Michael Meurer and Jim Bessen concluded (2008) that on average, “patents place a drag on innovation” … “the patent system fails on its own terms”
- economists Michele Boldrin and David Levine: “The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and productivity, unless the latter is identified with the number of patents awarded—which, as evidence shows, has no correlation with measured productivity.
- But regardless of the empirical data on these issues, we should oppose IP regardless, in principled grounds, just like we oppose antitrust law and the minimum wage on principled grounds, not because of empirical data
- For example antitrust law is primarily unjust because businessmen have a right to collude and “set prices”
- And the minimum wage is unjust because it does not violate someone’s rights to offer to pay them a small wage to do a job
- So we have to turn to more principled, or “deontological,” views of rights to fully address the IP issue
- Locke and the Labor Theory of Property
- [KOL 037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory; Down With the Lockean Proviso ;“The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism,” ]
- Locke’s big mistake: too many metaphors
- Labor theory of property
- Has led to vast confusion about the nature and basis of rights and the source of wealth
- Led to the labor theory of value à Marx and communism, death, destruction, impoverishment, the Cold War, the nuclear arms race, and the lack of clean and safe Thorium nuclear fission reactors instead of Uranium (needed to breed Plutonium for nuclear bombs) [Locke, Smith, Marx and the Labor Theory of Value ; see also Hoppe’s Introduction to Democracy for a more “revisionist” theory of modern history]
- Carbon-free, plentiful energy, no waste, no meltdowns
- admittedly this is a counterfactual, and thus speculative
- Nobody owns labor, or action, or value [Cordato and Kirzner on Intellectual Property;Hoppe on Property Rights in Physical Integrity vs Value,]
- Nobody owns information, or patterns, or knowledge
- Mises’s praxeology:
- Human action is the employment of scarce means (material resources), guided by knowledge, to achieve some future end goal that would not otherwise occur.
- Use of means to causally interfere
- successful human action requires access to and control of scarce means, and knowledge about cause and effect.
- To have conflict-free, cooperative human action, in society, property rights are assigned to the scarce means.
- Makes no sense to do this for knowledge. Knowledge is non-rivalrous.
- IP is similar to normal property rights
- Richard Epstein, Adam Mossoff
- Humans could be owned too (chattel slavery). What the legal system can do is irrelevant to what it should do
- IP rights are involuntarily imposed Negative servitudes [Intellectual Property Rights as Negative Servitudes ]
- Auxiliary argument: patent and copyright require legislation
- Anarchist libertarians are against legislation [Legislation and the Discovery of Law in a Free Society,]
- Even minarchist libertarians have good reasons to be against legislation as a means of making law
The future of IP
- Special interests are fighting harder than ever
- The Internet, digital files, encryption, torrenting have made it virtually impossible to successfully enforce copyright law
- EFF/cypherpunk John Gilmore: “The Net interprets censorship as damage and routes around it”
- sci-fi author Cory Doctorow: The Internet is “the world’s most efficient copying machine” and “It’s the twenty-first century. Copying stuff is never, ever going to get any harder than it is today”
- 3D printing may do the same to patent law, over time
- Just as 3D printing of guns is causing trouble for enforcement of gun regulations
Thomas Paine: “a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason.”
A Libertarian’s Case Against Intellectual Property
Kinsella Law Practice, Libertarian Papers, C4SIF.org
with critical commentary by Professor Talha Syed
UC-Berkeley Law School Federalist Society
Oct. 11, 2018
KOL253 | Berkeley Law Federalist Society: A Libertarian’s Case Against Intellectual Property
HELENA: So hello. My name is Helena. I am co-president of the Federalist Society here at Berkeley Law. The Federalist Society has the following mission statement: The State exists to preserve freedom. The separation of government powers is integral to our constitution, and that it is empathetically the province of the judiciary to say what the law is, not what it should be. Here at Berkeley Law, we have students of all different viewpoints that participate in this group to ensure that Berkeley is intellectually diverse.
Today, we are delighted to host Mr. Stephan Kinsella who is a patent attorney and a leading libertarian scholar on intellectual property. Mr. Kinsella is the founder of the Center for Innovative Freedom and executive director of Libertarian Papers. Mr. Kinsella is the leading voice in libertarian scholarship on the topic of intellectual property. Mr. Kinsella got his Bachelor of Science and master’s from LSU and his JD from the Paul M. Hebert Law Center.
After Mr. Kinsella’s presentation, we will have commentary from professor of law at Berkeley, Professor Talha Syed. Professor Syed teaches on intellectual property and torts. His research focuses on patent and innovation policy for pharmaceuticals. Professor Syed got his JD at Harvard Law School. Lastly, we will open up the floor for Q&A, so if you have questions, hold your hand up high so I can call on you. And without further ado, please join me in welcoming Mr. Stephan Kinsella.
STEPHAN KINSELLA: Thanks very much, Helena. Glad to be here. I’m from Louisiana, and I was at LSU in 1988 to ’91 for law school. And I didn’t even—wasn’t even a member of the Federalist Society back then, but it was very small. So the turnout at Berkeley is much larger than it would have been even at that conservative place then, so that’s heartening. I’ve long been an admirer of the Federalist Society. I don’t believe the State is here to protect our rights, however, unfortunately, so a little bit more radical than the average Federalist Society member. I am a patent attorney and intellectual property attorney. I’ve spoken on this issue many, many, many times over the years, probably hundreds of times, more than I would have wanted to. I gave an intensive course at the Mises Academy about five years ago, and it took about nine hours, and even that didn’t cover everything.
So in the 30 minutes I have, I can only scratch the surface and hope to give you a new perspective that you can consider. I won’t persuade everyone here. I might not persuade anyone here, but at least you can think, hmm, maybe there’s a little bit more to this issue than I thought. So let me get the boring stuff out of the way first. What is intellectual property?
Intellectual property can be viewed as legal rights protected by law having to do with the products or creations of the intellect or the mind, and that’s why the word intellect is used there. Classically, this includes four legal rights: patents, copyrights, trademarks, and trade secrets. And there are many others that have been spun off over the years either by common law or by legislation such as semi-conductor mask works, which protect Intel’s chips, boat hull designs, database rights in some countries, not the US so much, moral rights in some countries, not the US so much, rights to one’s likeness, and even reputation rights, which are not classically considered part of IP, but I believe they should be given the way they operate. This is defamation or libel and slander law.
And then there are certain cultural things happening around the world that you could think of as similar to intellectual property law such as killing people for painting pictures of a certain prophet that they shouldn’t be printing, a painting, and even the modern leftist cultural appropriation idea that you are not entitled to say certain things if you’re not of the correct race or ethnicity. Those are IP-like, although they’re not technically enforced by most governments.
Okay, why should we care about intellectual property? And it’s impressive that we have a nice, full room on a beautiful day, wondering about this topic that makes most people’s eyes glaze over like my relatives at Thanksgiving. IP—we should be interested because it’s a subject of heated debate in political theory. On the one hand, you have people like Ayn Rand, the sort of father of the libertarian movement, and I say father because she clapped her hands in glee when she was referred to as man one time. But she said patents are the heart and core of property rights, and she told her lawyer and friend, Murray Frank, who is an IP lawyer, oh, IP—intellectual property is the most important field of law.
So and then you have things like the US Department of Commerce releasing a study in 2012 purporting to show that intellectual property intensive industries contribute $5 trillion and 40 million jobs to the US economy every year. That’s probably actually true, but it’s IP-intensive industries. That’s like saying that companies that rely on roads contribute 100% of the GDP to the US economy as if it’s an argument for roads.
Then on the other hand, you have empirical studies saying that patent trolls, which are just one small slice of the patent problem, cost $29 billion a year to the economy. And then you have the United States through Donald Trump and other administrations trying to foist IP protections on other countries through trade agreements and treaties like the USMCA, the new version of NAFTA, and the Trans-Pacific Partnership, which I and others have called intellectual property imperialism. And then, of course, you have the fact that copyright threatens—distorts culture, severely censors free speech, and threatens the freedom on the internet. So it actually matters that we get this right. This is an important, important topic.
I’ve been a libertarian since about my high school years, and I was—everything made sense to me that I read. It all made sense to me. Milton Friedman, Ayn Rand, Murray Rothbard, Henry Hazlitt, Frederic Bastiat, these guys. But when I came across Ayn Rand’s comments about patent and copyright, it never quite made sense to me. She’s in favor of the government granting these monopoly privileges to have a limited right in time to exclude people from competing with you in the field of either ideas for copyright, which last roughly 100+ years, or patents, which last roughly 17 years. And it struck me as odd that you would have a right that would expire, didn’t seem like a natural right like the other things that made sense to me in free-market economics and in libertarian theory.
So I always puzzled that. I shelved it to the side because I didn’t understand it. It’s a very arcane topic. And in college, I kept thinking about it a little bit. In law school, I thought about it some more. And when I took the patent bar and decided to become a patent lawyer, I started thinking about it even more and researched and read a lot. And by the time I passed the patent board in 1994, right around the same time, I became convinced that—I was trying to find justification for patent and copyright law because everything I read made no sense. So finally, I realized, oh, Kinsella, you’re failing because this can’t be justified. That’s the solution to the problem.
And then when you understand this, it helps to unlock the key to a lot of things about political theory, property rights, the legal system. Some of the biggest influences I had were writers that came before the internet. After the internet in ’95 and so this issue of piracy and things like this became way more prevalent, and then people started ratcheting up copyright enforcement. And so people started turning their attention to copyright law. It was kind of ignored before. It was the domain of specialists.
But there were a few people who had written before like Tom Palmer, a Cato scholar, and Wendy McElroy, a Canadian libertarian feminist—individualist feminist scholar. And Ludwig von Mises, who didn’t write exactly on this topic in a coherent way, but he did lay the foundations for the economic way to look at human action, which I think helps solve this problem. And then Hans-Hermann Hoppe, those are the four writers that influenced me the most to come to my current views.
Okay, so I, of course, have spoken on the law as a patent attorney to further my career, and I’ve written on this topic. But as a libertarian, my main interest always was rights theory, legal theory, contracts, things like that. I only wanted to write—I saw that everyone was confused about IP, and I had finally figured it out in my mind. So I thought I’m going to write one paper on this and get it over with and then go back to the things I like.
And so in 2000, I had a big paper published in the Journal of Libertarian Studies, and that keeps being re-treaded, and I have to write further articles and give speeches because this issue is vexing to some people. But I have found that once you look at it the way I’m looking at it, which I will get to, it does help to unlock things like causation and the law, fraud theory, contract theory, property theory, rights theory, and also the very issue of the nature and sources of wealth and human prosperity.
Okay, so the question we have to answer is not, hey, is IP a good idea? This is a very unprincipled, pragmatic way to look at things. The question is not, is IP a good idea? The question is not, what kind of IP system should we have? The question is what should the legal system be? What are human rights? What are individual rights? What should the law be? So to understand that, we have to go back and understand what law is.
Law is the legal enforcement of rights, and as Murray Rothbard explained in the Ethics of Liberty, all rights are necessarily property rights because rights arise because we do not live in the Garden of Eden. The Garden of Eden is this hypothetical state of nature, which, of course, never existed. But it’s the idea that we live in a state of super abundance where our wants are always satisfied. Nothing is ever impossible to achieve. There’s no scarcity of anything.
We don’t live in the Garden of Eden. We live in a world of scarcity, and this is where Mises, the famous Austrian economist, and his theory of human action, which he called praxeology, comes into play. Don’t be scared by the word. He did coin a word. I think everyone gets to coin one word and only one word, although Mises has two, but he’s so genius I’ll give him two. Some people come up with too many like Hayek and Voegelin. But praxeology just means the logic of human action. It’s very common sensical.
What we do in our lives, all of us, is we act. When we act, we employ means to try to change something that we anticipate is going to happen in the future. When we do this, we employ our knowledge as well, our knowledge of what we think is happening and our knowledge of what means we can employ to change the course of events. So human action is centered around the idea of employing scarce resources or means of action guided by knowledge. These are the two components of human action.
If you lived in isolation like Robinson Crusoe on an island, you would still have to use means, make a fishing net to catch fish, your knowledge about how to do this, and you would have to use your knowledge. But you wouldn’t have the problem that we have in society, which is the problem of conflict. When you have more than one human actor, there’s a possibility of conflict. There’s also the possibility of cooperation, which makes us richer through the division of labor and social interaction.
But there’s a possibility of conflict because we live in a world of scarcity. There are scarce resources, and the nature of those resources is that they can be used only by one actor at a time. And if we are to use these things peacefully and cooperatively with each other, we need rules that permit us to use these resources without being violently interfered with by someone else. This is exactly what property rights are. Property rights are simply the allocation of rights to scarce resources.
Every legal system has property rights: socialist systems, communist systems, theocratic systems, dictatorships, autocracies, democracies, and even free societies have property rights. There is some legal system, which gives an answer to the question, when there’s a dispute over this resource between A and B or C, who gets it? That’s the answer, and that’s what the ultimate purpose of law is. Law is a codified or an existing set of rules that determines the owners of scarce resources when there’s a dispute over these resources.
Now, the natural set of rules that tends to emanate from the common law and from human interaction and human society is very simple. It’s basically the Lockean idea, John Locke’s idea, and you can summarize it this way: in the case of the human body, which is a scarce resource because they can be owned by either the person himself or by someone else, which is—we call that slavery. The libertarian answer and the common law answer and the traditional answer is—the default is every person owns himself. That’s the answer unless something happens like a crime of murder, self-defense, something like that.
But in general, everyone is the default owner of their body. That’s the first property rule. And then for everything else in the world that’s a scarce resource, every external resource that there is that was one time, that was at one point never owned, that is, previous unowned, for these things, the things that we need to employ—land, animals, wood, materials, food—these things we determine the ownership in the case of a dispute by three rules.
The first one is original appropriation. This is the Lockean idea of homesteading. That is, all things being equal, if two people have a contest over a resource, the first person to use the resource has a better claim than the other unless—rule two—it was transferred by contract. So if I own it because I got it first, and I give it to someone else by contract, now they have a better claim than me and then the rest of the world.
And a third or subsidiary thing would be transfer of property because of a tort. If someone harms someone else, then they owe them restitution or rectification, and some of their property can be transferred from them to the other person to rectify the harm that was done. But those four rules—self-ownership plus, in the case of external resources, original appropriation, contractual, consensual transfer, and transfer because of rectification, or the—basically all the four rules of all law. All legal systems originate from these things.
Now, what distinguishes libertarianism from other, even the common law in classical liberalism, is just a more hyper insistence on consistency for these types of rules. So, therefore, we’re really, really passionate about self-ownership and about we reject the idea of the hypothetical contract between people unless they actually had an agreement. But the core of the common law and the private law that even you’re studying now is rooted in these basic principles.
Okay, now, before we apply this to IP law, let’s just quickly understand where IP law came from, the history. You can go back as far as about 500 B.C. There was, in the Greek city state of Sybaris. There was some culinary competition, and there would be a competition who had the best recipe for a dish. And whoever won would have the monopoly right for one year to be the only one who could cook that dish.
So you can see the beginnings of this idea of someone having a monopoly on some idea they come up with that other people like or that’s useful. Fast forward a little bit. You started having this practice in the, say, 14-, 1500s of monarchs granting what’s called a letter patent, which means patent—the word patent means open in Latin. So it was like an open letter, an instruction from the king to the world saying this guy is the only one who has the right to practice this trade in this region, to sell sheepskin in this area. So it was just a monopoly grant. It was anti-competitive, and it was just a favor handed out by the king to someone in exchange for something they had done for the king.
This problem got out of hand, and in Britain in 1623, the parliament passed the Statute of Monopolies to reign this in, and so they restricted the king’s ability to grant these monopolies, these monopoly privileges. But they kept in force the ability of the king to grant monopolies for inventions. So—and then in 1789 when the US was founded and the copyright and patent clause, this right of congress to enact a similar thing, similar to the Statute of Monopolies, was kept alive. Copyrights originated—look, the church and the state controlled thought easily before the invention of the printing press.
The scribes were all members of the church or government under government control, so the government could control what was being printed. When the printing press came about, it was a threat to the state and to the church because they didn’t want the people having mass-produced books without permission, with the government having an approval first. And so the government starts the Stationers Company—we’re talking England now—which had about a hundred-year monopoly.
And finally, when that expired, there was a debate, and so the Statute of Anne was enacted in 1709, which is sort of the genesis of our modern copyright law. So you can see that copyright law that we have now originated in censorship, that is, the control of thought, and patent law originated in the grant of monopolies, which were anti-competitive. And, of course, this is the way they work now, although what happened was, in the 1800s, the free market economists—when they saw the emergence of this modern type of patent and copyright system that the US started and then Western Europe started enacting, the free-market economists started saying, wait a minute. These government-granted privileges are getting out of hand.
They’re contrary to the free market. They’re contrary to private property rights. The industries that had grown up around these monopoly grants and had become dependent upon them like the publishing industry and certain companies that made inventions, they fought back. And the way they fought back is they said it’s not a government-granted monopoly privilege. It’s a property right. And everyone said it’s not a property right. Property rights last forever. Property rights are property rights, intangible things.
And so the defenders of the IP system said, well, it’s an intellectual property right. It’s a creation of the mind. And when they did this, they turned—they used a combination of two types of arguments: utilitarian arguments, which are pragmatic and sort of consequentialist, empirical, and deontological, or principled, arguments basically rooted in the Lockean conception of our natural rights.
So let’s go quickly through the utilitarian argument. The basic utilitarian argument—you’ll hear this today, and this is the predominant argument most people use today because everything is utilitarian is that there is basically market failure. Now, they won’t put it this way because they don’t want to seem like—they don’t want to all seem like they’re criticizing the market because most people today would think that intellectual property rights are a type of property right that’s part of the capitalist western system. And it went along with American and western prosperity since the 1800s.
So they think it’s a natural part of the market, and it is true that people trade these rights. They sell them all the time. So most people think this is natural, and so the argument is that without patent law and without copyright law, there would be a so-called underproduction of creative goods because there wouldn’t be enough incentive to do it. And the reason is because, unlike physical goods or tangible goods or corporeal goods as we say in civil law, it would be too easy for people to compete with you. So the idea is that if I have a car factory like Henry Ford, it’s not easy for someone to make a competing car company. It’s fine if they compete with you eventually, but that’s just part of the free market process.
But if my product is a book or a map or a painting or a computer program or a new carburetor design or a pharmaceutical, as soon as I start selling this, then the key part of the value is the way it’s arranged, and that is a pattern. That’s information. And that can be easily duplicated by competitors, and therefore, they’re going to compete with me right away, and I won’t be able to sell my product at a monopoly price long enough to recoup my research and development cost. That’s the basic idea. And therefore, we need the government to come in and fix this market failure and give people monopoly rights for a limited time so they can recoup more of their cost, and there’s more incentive to engage in these activities in the first place. This is the basic utilitarian idea.
There are so many problems with this notion. Number one, it’s totally unprincipled. But let’s just talk about the burden of proof. When you come up with a system that is a derogation from the common law rights, from our natural rights, from the free market, you would think the burden of proof would be on the proponents of this. Now, the founders didn’t have any empirical studies to prove that patent and copyright would benefit the free market or make us wealthier. In fact, they originated in anti-competitive monopoly grants by kings and pro-censorship restrictions on free speech by the church and the crown in copyright.
So they basically had, at most, a hunch. The constitution doesn’t require patent and copyright. It only gives congress the authority to issue patent and copyright laws if they want to, and they did the very next year. By the way, there’s also an argument you could make that patent law is clearly constitutional. I don’t deny that, although that doesn’t make it right, in my opinion. The Constitution recognizes lots of things that are wrong like taxation and slavery.
But copyright law—you could argue that the copyright clause was enacted in 1789 when the Constitution was ratified. Two years later, in 1791, when the Bill of Rights was ratified, the first amendment restricts the Congress’ ability to restrict freedom of speech and freedom of the press. And the Supreme Court has long recognized that copyright law clearly does infringe freedom of speech and freedom of press because it literally prevents people from printing or saying what they want to say. So what the court has done is the court is balanced. They say, well, we have a tension in the law. We have to balance it, sort of like anti-trust law versus patent law.
Okay, but as you all know, there’s a canon of interpretation, of statutes and constitutional provisions that, as the later provision that is enacted can override an earlier one, which is why prohibition of alcohol is now overturned because the later amendment came later. So you could argue that the first amendment, in 1791, came two years later under a different Congress, and to the extent there’s a conflict between copyright law and free speech and free press rights, that the free press rights, the first amendment has to prevail. And the court has just dismissed that argument because it would be too disruptive to overturn copyright law based upon the first amendment.
In any case, we’ll go with that. And, by the way, trademark law is not authorized in that clause, which is why the trademark statute, the Lanham Act, is held to be valid under the interstate commerce clause, and which is why states still have their own trademark systems because federal government couldn’t quite preempt that.
Okay, so in any case, the problem is that, as I said, the burden of proof needs to be on the advocate of intellectual property. Have they fulfilled that burden of proof? They didn’t at first. Now, there’s a famous economist, Fritz Machlup. He’s kind of an Austrian-leaning economist. He was hired along with Edith Penrose in the ‘50s by Congress to do an extensive study on the patent system. And what he concluded in an officially authorized study for Congress, no economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit on society. So what he concluded was that, if we didn’t have a patent system right now, there would be no evidence to justify instituting one.
And in the meantime, there’s been French economists, Lévêque and Ménière. By the way, I’m going to post this on my website, so I’ll have these notes there if anyone wants to follow up on this. A French economist in 2004 said that an economist analysis of the costs and benefits of IP law is no more within our reach today than it was in Machlup’s day. Boston University Law School professors, Bessen and Meurer, who are economists, they concluded in 2008 that on average, patents place a drag on innovation.
And the economists, Boldrin and Levine, who studied this issue in a groundbreaking work called Against Intellectual Monopoly, and they started this research hoping to defend patent law, and they concluded that it’s totally indefensible. They argued that the case against patents can be summarized briefly. There is no empirical evidence that they serve to increase innovation and productivity unless you equate it with the number of patents awarded, but that’s just circular reasoning.
Okay, so the utilitarian case fails, but I’ll be honest. As a libertarian, I would be against the patent system and the copyright system even if the utilitarian case made sense because it’s just wrong. It’s just like the argument against the minimum wage or anti-trust law. People have a right to collude. People have a right to offer someone less than minimum wage for a job. That’s a fundamental human right. It’s a property right. The utilitarian arguments always have to come second.
Now, when the utilitarian argument fails, people resort to what was the sort of original argument, the natural rights argument, the Lockean argument. And, by the way, Locke did not endorse—Locke did not believe that his natural rights theories implied patent or copyright. He was loosely in favor of copyright as a utilitarian measure, but his theory of property—even he didn’t think that. The problem, I believe, is that John Locke made a mistake unintentionally, but the way he formulated his argument, and it has led to unending human misery and even death since. John Locke argued this. He was trying to argue against the monarchical system before and Filmore’s argument.
John Locke said, listen. Governments are here to serve us. How did he argue that? God gave Earth to the humans. Every person owns himself because God gave him control over his body. If you own yourself, you own your labor. If you own your labor, you own what you mix with it if no one else owned it first. So this is the labor-mixing argument of Locke. This is the natural rights argument of Locke.
Unfortunately, I think his argument was flawed in that he didn’t need the labor step. He didn’t need to say you own your labor because you don’t own your labor. Labor is an action. It’s what you do with your body. You do own your body, but you don’t own what you do with it. So that mistake led people to think of labor as a substance, as a thing that you can own, which has also led to some people believe to the labor theory of value, which led—through Smith and Ricardo, to Marx and then to communism. And, of course, communism led to lots of destruction and death and human immiseration in the 20th century. I’m going to skip my alternate theory history that Locke’s views have led to…
HELENA: You have about five more minutes.
STEPHAN KINSELLA: Five more, okay. I’m going to skip my excursion that we have global warming now because of Locke because we don’t have thorium energy because we had plutonium energy because the military needed to—I mean, we had uranium because the military needed to make plutonium for nuclear weapons because of the Cold War, which is because of Marx, which is because of the labor theory of value, which is because of the labor theory of property. Well, that was it in a nutshell.
Okay, there’s one other argument some law professors make, unfortunately, to quasi-libertarians, Richard Epstein, who’s a libertarian, and Adam Mossoff, who is an objectivist law professor and others. What they argue is that, oh, you libertarians who are anti-IP, you’re wrong. You’re wrong to say that IP is some artificially government-created right. It’s a natural right. Thomas Jefferson thought it was a natural right. John Locke did, which is all totally wrong. Jefferson and Locke did not think it was a natural right, and even if they did, they were just wrong.
But what they argue is that patent rights and copyrights, they’re very much like classical natural law, common law of property rights because you can trade them. You can rent them. You can bargain for them on the market. Yeah, of course. But during slavery, we could buy and sell humans too. There’s a whole body of case law during the chattel slavery days during the antebellum south. So what? What the law does and what the law can do doesn’t show what the law should be.
I’ll wrap up quickly. What is the future of IP going to be? I would just say this. The birth of the internet is a great thing because the digitalization of information, encryption, torrents, the internet has made copyright enforcement very, very difficult. It has made piracy rampant, and that’s a good thing. The more we can undermine copyright law, the better, and my hope is that the more 3D printing becomes a thing, the same thing will happen to patents. So hopefully technology and the free market will undermine these systems.
I’ll conclude with a quote from Thomas Paine: A long habit of not thinking a thing wrong gives it a superficial appearance of being right, and raises it first a formidable outcry in defense of custom. But the tumult soon subsides. Time makes more converts than reason. Thank you.
TALHA SYED: So this is a bit of a strange assignment for me because Mr. Kinsella has made an argument against intellectual property on libertarian premises. I have not too much to disagree with about aspects of his conclusion, so I’ll say a bit about that at the beginning. But of course—not of course, I entirely don’t accept the premises, so it’s kind of a bizarre thing. I actually more or less am sympathetic that the case for intellectual property rights is, in fact, much weaker than is commonly thought, both on instrumental grounds and on principled grounds. And I also agree that the issue is very important. I also agree there’s massive overreach today. So on all these, we agree a lot, and so it’s not really clear what I should say about that.
But my basis for thinking this is entirely different than his, and I guess where we disagree a lot is on his basis. So I think I should say more about that than about the fact that I also agree that Machlup’s conclusion in ’58 has not been challenged to this day that the overall case for intellectual property rights on an instrumental or economic basis has always been and remains, even at best, that there’s many costs of intellectual property rights from an instrumental economic basis.
Alongside, there are ostensible extensive benefits, and that at best, patents and copyright may be justified on an instrumental basis in a few specific areas where the costs of production are very high, and the costs of reproduction are very low, ostensibly patents and movies and biotech, but maybe not even there, and we could talk about that. So I kind of agree with all that, so I don’t really want to push on that too much.
The reason I agree though is that, for me, intellectual property rights—you have to begin with the basic idea that they are rights to exclude others from using a resource—information or knowledge or culture—which resource is intangible. And because it’s intangible, it’s nonrival, and because it’s nonrival, many people can use without anyone degrading anyone else’s use. So it’s really unfortunate, unfair to restrict access on that.
I’m not sure, but I don’t know if I heard in Mr. Kinsella’s talk any point what the actual burden or harm of IP rights is. So for me, that’s the—I think you might have not—I think your view is that it interferes with the property rights of people, but you didn’t sort of cash that out here I think. So you might want to speak to that a bit. For me, the harm is that it restricts access to something which, once created, should be available to all because it does not derogate from anyone’s use that others share it. That’s the miracle of intangible resources.
Having said that, there is both fairness and incentive arguments for why the creator might be owned a decent return for the effort that went into creating something that’s socially valuable and that, if we don’t get that decent return, it might be that others will be discouraged from doing so, and we might get less innovation. That’s my basic, very modest framework. Access restrictions on intangible resources are a default bad idea.
But some way of generating those resources may be required through some legal policy to promote fairness and robust production and robust innovation. What the ultimate principled basis of that is we could explore, and I’m happy to discuss. But it’s this mix of sort of basic ideas of wide access and fair returns that motivates my view that intellectual property rights, like some other innovation policy mechanism, should be evaluated in terms of how well they enable wide access and robust production and fair, equitable returns.
And on that, I’m not committed to intellectual property rights as being the best scheme or how strong they should be. My own view is that current rights are, through the roof, way too strong. There’s a massive overreach. There’s a very clear, political economy story why that happens. It’s completely unfortunate, and it’s expanding to this day. And what’s happening on the internet with criminal enforcement and so forth makes it all even much worse.
So on all that, we, I think, are not too far apart, although one could have various sort of modest disagreements. But where we disagree is sort of the foundational basis of our positions. And so on this, I don’t have much time, so I’m going to just try to see a few things. So, Mr. Kinsella has what he claims is a sort of a libertarian, principled position based on natural rights arguments.
Now, to me, there’s a few problems with this. First of all, it’s always puzzling to me why it’s called the libertarian position when it’s really the propertarian position. It’s not about freedom. It’s about property rights. Well, then say that. It’s a propertarian position. It’s not about an unvarnished, principled commitment to freedom. It’s about the guiding motif being something called property rights.
Now, on the idea of property rights, I just want to say three things and see if I can get it in in this time. First, the idea that all—so, first of all, natural rights. I’ve never understood what people mean when they say natural rights. To me, rights are claims against others. Mr. Kinsella seems to agree. There are no rights on a desert island by yourself. Rights are claims against others. Rights are social relationships.
Now, the basis of those rights can be in various different kinds of arguments. Those are arguments. Calling them natural is just cheating. Where do they reside? They’re not your eyesight. Eyesight might be natural for some. To call something natural is a dishonest way of trying to get pre-modern warrant for a normative argument as quasi-non-normative. It is, in a word, bullshit.
There are rights, which we can respect based on reasons. We have to give reasons for those rights. When the reasons are given, they can be more or less persuasive. Calling them natural does nothing to the argument except try to convince you that it’s not a normative argument at all. It’s like a physical act. Well, there’s a chair there, don’t you know. Well, okay, good. But that doesn’t tell me about whether the chair is nice or not nice, pleasing or not pleasing, should be sat upon or not, whose chair is it, and so forth.
Those are normative arguments. Historically, until about 17-1800, normative arguments were couched in the language of time in memorial, divinity, revelation, and so forth, or something called natural rights, which was a fusion of them, natural reason, according to Locke in the second treatise. Ultimately, natural reason is just reason, and I’m fine with arguments from reason. But putting this label “natural” on it as if it’s not any longer something human, something social, something historical, something normative, is a cheat, pure and simple. It’s an attempt to deny the inescapable reality that rights are social relationships, which we have to argue about to determine which interest merit protection over which other interests.
I have no problem saying the argument should be grounded in something called right reason of the second treatise, but then you have to tell me what the premises and principles of that right reason are. So let me go to that second point. On that second point, the idea that all rights are property rights strikes me as patently bizarre. Either it’s going to be tautologically true because we’re going to empty the concept of property rights of any content and meaning in which case what’s the point of the exercise? Or it’s going to be false because I don’t understand what it means to say that my interest in being able to express myself is—should be protected as a right against other people’s interests in not hearing what I say and being able to violently stop myself from speaking.
Oh, well, that’s really a property interest because you’re using your vocal organs, and you own them. I don’t know what that means. I don’t know how that helps anything. I don’t know what that means except to illicitly try to reduce all human interest to the logic of the market. And that’s, to me, a very historically specific recent phenomenon, or what I call propertarians, think it, somehow time in memorial, they’re just wrong.
There are no such arguments until very recently on the stage of history because the social form that those arguments track is very recent on the stage of history. Propertarian mindsets are the mental expression of people who live in capitalist societies. That’s fine, but that shouldn’t be then naturalized into some sort of trans-historical, human phenomenon through the gobbledygook of natural and blah, blah, blah. It just doesn’t make sense. It’s dishonest. It’s patently absurd. The argument should be made on their own terms, not with the implication of unhelpful metaphors, which try to hide the ball.
Last point. The rights of property that are being claimed as absolute and sacrosanct here are the rights in one’s body, self-ownership, and the rights in external resources based on first occupancy fundamentally when there’s contract and rectification. But that’s a very strange argument, first occupancy. The first person who delimits or does something that no one else has done now has it. Locke never made that argument fully. He thought that that argument by itself was too thin a reed, and he was right because, of course, by itself, that can’t be enough, just being there first.
What if you’re there first in a lot of places, and you don’t leave enough and as good for others? Well, there’s a problem. Locke understood that. The propertarian literature has struggled with this from the beginning. How do you deal with the in-built limit on property rights in external resources based on the enough-and-is-good proviso? There is a whole industry on talking about this. What does it mean to be born into an Earth that’s already been occupied and owned by everyone? What is all this about? And fundamentally, I can’t really argue against this at this time. I’m happy to argue it against it at length.
But I just want to leave you with an idea that, fundamentally, this whole mindset is a bizarre idea that humans are born fully form, self-autonomous beings at birth. They are not. They are born vulnerable, fragile, deeply dependent, social beings all the way down. Adults at some point in a market society come to resent this reality and deny it deeply by pretending something else is the case and then invent a series of fictional just-so stories which none of which have any grip for anyone who’s not already in the grip of the idea, the infantile desire to escape the reality of society and history and go back to some primordial, fictional story in which there are absolute rights, sacrosanct between self-governing sovereigns who relate to each other as pinball machines and can’t define their rights in any plausible way.
There is no such thing, period, as an absolute right because rights are social relations, and to have an absolute right would mean to have an interest protected against any other interest absolutely. And that is conceptually and institutionally not on the cards. Okay, I’ll stop.
HELENA: We have about 15 minutes left.
STEPHAN KINSELLA: I’ll try to speak for five or six minutes and leave room for Q&A. How about that?
STEPHAN KINSELLA: I really appreciate the responses. I’ve done several debates. This is the most intelligent response I’ve ever gotten, which is probably why—you’re probably somewhat anti-IP. If we had two hours each, we could go into this in more detail. Just quickly, the harm of IP in terms of copyright, there are people in jail. Aaron Swartz committed suicide facing penalties. People die, and the culture is distorted. There is censorship, and freedom of the internet is threatened. That is a huge thing. Internet is one of the most important tools we have against state tyranny. And when the government threatens internet freedom in the name of copyright, it’s a big problem, so that’s the harm of that. The harm of patents, I believe, it has slowed down innovation and human progress depends upon the accumulation of knowledge over time.
TALHA SYED: But you can’t have both harms. You need principled harms, so give me the principled harms. You’ve got to have principled harms. Or you can’t have instrumental harms.
STEPHAN KINSELLA: Well, your criticism about natural rights, actually, I agree with a lot of what you said. I tried not to rely upon natural rights arguments. I’m using the word natural as a shorthand, but actually I agree with Hans-Hermann Hoppe’s argumentation ethics and the more dialogical arguments for liberty, which sort of agree with the is-ought problem of the standard natural law argument. So I would take a more libertarian take on the Habermassian type of arguments, okay?
TALHA SYED: Habermas?
STEPHAN KINSELLA: Yeah. Of course, that was Hoppe’s PhD advisor, Habermas and [inaudible_00:44:38].
TALHA SYED: That’s great. Habermas is [inaudible_00:44:42]
STEPHAN KINSELLA: So I’m trying not to rely on natural, but I do think that there is a way to use the natural—the description of the natural position without having a loaded argument. Mises did it. Hoppe does it. There is—and Rothbard did it. There is a natural position, and you can describe that natural position, and then you can make reasoning based on that. I think my case, when I have more time to do it, and in my writings, is based on reasons, and I agree with your appeal to right reason. I have used the word propertarian before. The problem with that is that term has been co-opted by some alt-right guys, so I don’t like to use it.
And also, as I said, every legal system on Earth believes in some form of property rights. So I think the question comes down to who gets the property right, and that’s the libertarian distinction. I do agree with you that rights are justifiable claims and that you have to use reasons to adduce them.
Now, you talk about being dishonest. I do agree that, when you sort the word natural, you can bend the needle. But what’s really dishonest is calling government-granted monopoly privileges intellectual property. It’s not property. And you are correct to identify the Lockean proviso as a potential snag in our arguments, which is why those radical anarcho-capitalist libertarians of us completely and utterly reject the Lockean proviso.
So I have written in print and so has Hoppe and others that why we disagree with the Lockean proviso. And I do think that original appropriation is good enough because it establishes a link between one person and the resource, which is an objective, intersubjectively ascertainable—there’s the Habermas for you—link between a person and a resource, which gives him a better connection to it than anyone else.
Now, as for this hypothetical previous state, as you know in the law, we don’t have to trace title back to Adam and Eve or the Garden of Eden or even to the sovereign to settle a dispute. When there’s a dispute between two people in the real world, they go before a tribunal and A and B both claim this resource, and all you have to do is trace back to a common ancestor. This is what the law does. The civil law and the common law both do this.
So you basically have to go back to a common ancestor. You can stop there. It doesn’t matter how that common ancestor got it because from that point on, you go back four or five generations. You find the grandfather who had it, and then you see what he did with it and who gets the best title from there. So the law is about better title, which is relative. It’s not absolute. It doesn’t need to be absolute in practice.
I’ll stop there. Almost everything you spoke about I’ve written on in more detail on my website, and I’ll be happy to take questions either now or by email later. But just go to C4SIF.org, which is my website. I’ve got tons of material there, which elaborate on all of this. Thanks.
HELENA: We have a few minutes for questions.
W: Mr. Kinsella, I think [inaudible_00:47:42]. You mentioned the utilitarian arguments for and against intellectual property, but you didn’t actually get very much into the substance about the deontological argument.
STEPHAN KINSELLA: Correct.
W: Of intellectual property.
STEPHAN KINSELLA: Sure. And if you want to speak on that too. The deontological argument is that—is the Lockean argument that we own ourselves, and therefore, we have the—I think there’s a confusion. There’s a confusion between economic concepts and legal concepts. So economically, we trade. Economically, we profit from our labor. Economically, you can say you sell your labor, which is simply a legal way of describing the motivation for engaging in labor or in action is so you get rewarded for it. Someone gives you something in exchange for it.
That makes us think legally that if I trade an apple for an orange with someone, title is being transferred. I’m selling the apple. Someone is selling their orange. I’m buying the orange for my apple, etc. If I get paid to paint someone’s fence, then we think of that as a sale too, and legally we start thinking of the thing that was sold as an object that you must have owned. You must have owned your labor. So the idea is this idea that if you work hard in a free market system where everyone’s rights are respected, you are going, by and large, to profit from what you do.
So people start thinking that you have a right to profit from what you do, which is one thing I disagree with in what you said, professor, the idea that you’re owed a right of return. I don’t think you are ever owed a right of return. You’re not ever owed a right to profit. But this is the idea that hard work merits—it’s a Protestant idea—if you work hard, you’re entitled to some compensation. I don’t think that’s true at all.
Someone who’s an entrepreneur, and we’re all entrepreneurs. Every action we take is entrepreneurial in the sense that we’re predicting the uncertain future, and we’re trying to make up a psychic profit in what we do. We might fail. We might succeed, but no one is obligated to fulfill that for us. If I start a new restaurant, a new hamburger chain thinking that this is going to be a hit, or a new pizza delivery thing and someone is going to compete with me pretty soon.
So I might be able to make a lot of money for a few years, and the competitors are going to come in. They’re going to imitate me. I’m not entitled to those customers. When people say he stole my customer, they sometimes take that word “steal” too seriously. Or he stole my girlfriend. I don’t own my girlfriend. I don’t own my country. Just because we use the word, the possessive “my” doesn’t mean there’s really a title relationship there. So language is really key here. We have to be careful about metaphors and how language is used ambiguously and unintentionally or intentionally for equivocation.
So the principled argument is that—here’s the principled argument. It’s the idea that, if you create something, you own it. And the idea is that, well, I created this symphony. I created a novel. I created a new design for a carburetor. I created it. Therefore, I own it. I can control what people do with it, which is why professor called it a resource and excluding a resource. Economically it’s not a resource. It’s an idea. That’s why I used the Mises idea of praxeology to distinguish between the use of scarce means or scarce resources.
There are corporeal, tangible, material things as opposed to information. So the idea is that if you create something, you should own it. And they make the analogy to Locke’s idea or the natural right idea, which is sort of sloppily formulated. So people think that creation is one of these sources of ownership, which is why I specified the three I did: original appropriation, contract, and rectification. You notice that creation is not one of those. Creation is actually not a source of ownership.
This is the mistake everyone makes. They believe that if I create a chair, I own it. That’s not true. I own the chair because I own the raw materials that went into the chair. I had to own them first to own the chair. So creation is a source of wealth. That is, I take a resource that I own. I rearrange it into a better form. It’s more valuable to me or to others. It makes the wealth of the world higher. But you don’t own wealth. You don’t own subjective value. You only own the underlying material that’s the scarce resource.
Conversely, if I didn’t own the raw material that I made the chair from like I’m an employee at a factory and I’m making the chairs for my employer, I don’t own the chair that I produce. So creation is neither necessary nor sufficient for ownership, which, by the way, is part of the Marxian mistake. So Marx thinks that employees are exploited because their labor—they’re not getting fully compensated for the value they put into the chair because their labor.
So this whole idea of labor ownership, Locke’s use of the labor in his argument, is a mistake. And so the fundamental mistake, and I’ve called this libertarian creationism, the idea that creation is a source of ownership, is a false idea. Once you believe that, you can say, well, if creation is a source of ownership for tangible things, creation is a source of ownership for poems or novels. So I reject creationism as a source of rights utterly and completely.
W: I’d like to know whether Professor Syed has a response to that.
TALHA SYED: To which part exactly? I mean, I’m not sure I even know what part I’m supposed to respond to. Do I think that people deserve, as a matter of fairness, social recognition and returns for meaningful contributions to society? Yeah. Do I think that’s a right? Well, I don’t think there’s any magic to that. To me, R-I-G-H-T has no magic.
It’s just a label for a normative argument based on reason. That’s it. Now, do I have comment on the Marx thing? Well, not really because that’s not what Marx has done. That’s what Ricardo might have done but not really. Marxists have thought that, and you’re right about that. Marx himself never had any interest in Lockean [indiscernible_00:53:27] theory of any sort.
HELENA: One more question.
W: So Professor Syed and Mr. Kinsella, I mean, on the issue of natural rights, I’m wondering is the disagreement here, is it just like a verbal thing? You just don’t like the word “natural,” like you think it’s somehow implying something other than it being like something based in actual reasons?
TALHA SYED: [indiscernible_00:54:08] so let me just be clear. I think the word “natural rights” has mental-blocking properties. The minute you say natural right, you’ve made it seem as if you’re making an argument A) of individuals outside of society. All rights are social, period, conceptually and institutionally. That’s just a truth. There’s nothing you can do about it except cry. But that’s what it is. All rights are social.
W: I don’t think anyone disagrees with that.
TALHA SYED: No, no, no, but natural rights theorists have, for most of history, argued that natural rights can be justified in unilateral, individualist ways. Any time you get an argument that justifies someone’s rights in a unilateral, individualist way, without taking into account competing bilateral claims, it’s someone who doesn’t understand what a right is conceptually and institutionally. And that misunderstanding is facilitated by the rhetoric of natural, which has had, historically, that role.
Second, natural also has the rhetorically loaded character of inviting you to believe that this is something you observe as an empirical claim rather than something that you argue for as a normative claim. The minute someone says, yeah, of course, all rights are social and normative and backed in normative reasons, we’re fine. Then the word “natural” plays no role. If you say, well, that’s what the word means, then my question is, well, why use the word “natural?” What does natural add except to say certain reasons do not depend on their recognition by certain contingent legislature? Well, that I agree. But of course, I absolutely agree that rights are not just the conventional positive legal rights that our legal system may or may not recognize.
Of course, I agree we all have the right and obligation to be critical of the existing rights of a legal regime according to reflection and reason. Of course, that’s right. Anyone who doesn’t think that besides [indiscernible_00:55:56] is crazy. I mean, but that’s a different view. The word “natural” doesn’t add anything. I claim the word “natural” does more work. But if you accept that rights are reason-based and dialogic-based and Habermassian-based, then we have no methodological disagreement on that question. I just think it’s good to drop the word “natural,” and you seem not to disagree on that.
STEPHAN KINSELLA: I don’t disagree. I agree with most of what you said. If you want to look into this further, look at some of the stuff on my site with Hoppe and argumentation ethics. And Hoppe’s criticism of natural-rights reasoning, and a funnier one, by the way, is Robert Anton Wilson had a book called Natural Law, or Don’t Put a Rubber on Your Willy. So he was sort of mocking the Catholic church’s natural law stuff, which is related to natural rights, the idea that you can extend what’s been said by the church or what’s been done is history as an argument for what normatively should be. So I agree with Hume that you can’t go from an is to an ought. So that’s one problem with the classical natural rights argument.
[Note: The following comments are missing from the Youtube version but are included in this podcast audio]:
And the other is that, as Hoppe points out, human nature is very diffuse and broad. You can’t get a lot of specificity from that, which is why he anchors his argument in dialogue, which is an argumentation. It’s a particular activity of humans, which has a specific nature, and you can anchor norms in that. But, by the way, my entire case on IP, and I’ve written on rights, but my case on IP I think doesn’t depend upon this in any case. In any case, I’ll stop there.
HELENA: Okay. I think that’s a good place to stop. Thank you so much for coming. Let’s give them both [indiscernible_00:57:27].