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KOL289 | Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 2: A Sober Conversation…

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Kinsella on Liberty Podcast, Episode 289.

[Update: Transcript appended below]

This is my appearance on the Scottish Liberty Podcast from May 30, 2020, with hosts Antony Sammeroff and Tom Laird. We discussed IP and related matters, including Sammeroff’s recent debate on the topic of IP with pro-IP Randian law professor Adam Mossoff. See various links, embeds, notes below. This was the second take, and entitled “A Sober Conversation with Stephan Kinsella…,” because we had previously recorded a discussion on May 24, 2020, in which I was a bit drunk and went off on a rant. The episode was entitled “Under the Influence… of Stephan Kinsella… Against Intellectual Property”. We then recorded this current episode on May 30, 2020.

[Update: I recently (March 2021) realized I never posted the initial episode, so have just posted it as KOL326 | Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 1: Under the Influence…]

See various links, embeds, notes below.

Youtube of the current discussion:

Youtube of the initial discussion, now posted at KOL326:

Antony’s previous debate with Mossoff:

In his remarks, Mossoff mentioned this paper by Stephen Haber as supporting the empirical case for patents (funny, I thought the Objectivists had principles): Stephen Haber, “Patents and the Wealth of Nations,” 23 Geo. Mason L.Rev. 811 (2016). I have read through it as much as I can stand and provide my critical commentary here:  “The Overwhelming Empirical Case Against Patent and Copyright”–see in particular note 3 and accompanying text.

Transcript

Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 2: A Sober Conversation With Stephan Kinsella (May 30, 2020)

[Transcript of “Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 2: A Sober Conversation (May 30, 2020)]

00:00:01

ANTONY SAMMEROFF: Greetings people of planet Earth.  It must be episode 156 of the Scottish Liberty Podcast with me, Antony Sammeroff, and that ranty, ranty man, Tom Laird, back with us again.

00:00:15

TOM LAIRD: Thank you.

00:00:15

ANTONY SAMMEROFF: Sorry.

00:00:16

TOM LAIRD: I’m free.

00:00:17

ANTONY SAMMEROFF: He’s free.  The excellent, the extraordinary Stephan Kinsella.  Don’t mispronounce it Stephen.  Don’t be that guy.  Don’t be that guy.  Only an idiot would do that.  Thank you for joining us.

00:00:33

STEPHAN KINSELLA: Glad to be here with all four of us.  You said there was you, Antony Sammeroff, Tom, and me, so that’s four.

00:00:39

ANTONY SAMMEROFF: Excellent.

00:00:41

STEPHAN KINSELLA: I only see three people though.

00:00:43

ANTONY SAMMEROFF: So we’re going to talk about – you only – for those tuning in on Facebook and YouTube see that I kind of look weird because I’m trying this digital background.  But Zoom thinks that my face is part of the background, so I look…

00:00:57

STEPHAN KINSELLA: I think you’re triggering a lot of light-epilepsy people right now.

00:01:00

TOM LAIRD: I think it’s because your head looks like a planetoid.

00:01:02

00:01:04

ANTONY SAMMEROFF: I am the moon, the orbits, the Earth.

00:01:07

STEPHAN KINSELLA: He looks like a Marvel character like Ego the Living Planet or something.

00:01:12

ANTONY SAMMEROFF: So I guess we’re going to talk about IP and stuff like that.

00:01:17

TOM LAIRD: Whoa.

00:01:17

ANTONY SAMMEROFF: That’s crazy.  As some people know, probably heard a couple of weeks ago, I was debating this Adam Mossoff guy.  And there may have been some conversation that we had once before, but we don’t talk about that anymore because…

00:01:32

TOM LAIRD: Did he laugh at any point during the…

00:01:34

00:01:37

ANTONY SAMMEROFF: But let’s just say that there were some things that could have been said in that discussion that we never speak of – we don’t talk about anymore that weren’t discussed.  So I guess a good place to start would be what – you said one of the things annoying about Adam Mossoff is he never actually defines IP. So what – how would you – how do you define IP?

00:02:02

STEPHAN KINSELLA: Well, so this is – all right, the definition is intellectual property refers to a set of legal rights that – it’s like an umbrella term that covers four or five different types of statutory – mostly statutory rights, which are all not really related.  So it basically just is a term that people came up with to lump together some different types of law like the patent system, which covers inventions, and the copyright system, which covers artistic and creative works, and then the trademark system, which covers sources of goods and names, brand names, things like that, and then the trade secret system, which has some rights related to keeping secrets that you want your employees not to tell other people, things like that, and then maybe one or two other special things in modern times.

00:02:57

So they’re always – in a way they’re loosely related, and the reason the term bothers me is because it’s a propaganda term.  It was a new term that was invented I think in the 1800s when these new statutory systems, which were independent, the patent system and the copyright system, say, in the US, 17—I think—90, right after the Constitution – the US Constitution was ratified in 1789.  The very next year the Congress started enacting patent and copyright laws.  And they were thought of and characterized as monopoly privilege grants, and some people were in favor and some were opposed.  But no one had any doubt that they were just special monopoly privilege grants by the state for a particular purpose to incentivize innovation or something like that, which is why they only lasted in the beginning for about 14 years, like a finite time.

00:03:59

They were temporary things sort of like infant industry protections or tariffs, how they protect local industries.  No one thinks of these things as natural rights or property rights.  So then the free market economists in the 1800s started getting alarmed at the rise over the world, in the modern world, of the prevalence of patent and copyright, these monopoly privileges.  And so the people that were entrenched in industries depending upon these by now, the publishers, inventors of light bulbs, and these kind of new industries, things like this – they started defending these systems not on the utilitarian grounds, which is really the main justification given, but saying that, oh no, they’re not artificial monopoly privileges because everyone was getting skeptical of monopolies, even natural monopolies or free market monopolies or government-granted monopolies, whatever.

00:05:06

So they didn’t want to call them monopolies.  They didn’t want to call them what they are, which is government-granted privileges.  So they started calling them – they said, no, they’re property rights, and everyone said, well, if it’s a property right, as Antony pointed out in his opening comments in the debate, there’s not a scarcity thing.  Like there’s not a possibility of conflict.  Anyone can use these ideas at the same time, so how is it a property right, and why does it only last for 17 years, 14 years?  And nowadays copyright has been extended from the original 14 years to 100+ years.  It’s crazy.

00:05:43

TOM LAIRD: Wow.

00:05:43

STEPHAN KINSELLA: Why would – if it’s a property right, why would it expire at a certain arbitrary time?  And so the counter to that was, well, it’s a property right, but it’s a special type of property right.  It’s an intellectual, so they added the word intellectual to explain why it’s different and it has to be treated differently in the law.  But they want to call it a property right, which Mossoff did repeatedly.  He just kept saying it’s a property right because you can license it.  It has an economic value.  You can sell it.  But that is just not an argument for why the law is a good idea.  I mean you could – I mean honestly you could make the same argument about child slavery in the antebellum south in America.

00:06:25

ANTONY SAMMEROFF: That’s a good example.

00:06:26

STEPHAN KINSELLA: They were – slaves were property.  They could be traded.  They had a market value.  They contributed to the operation of plantations.  And you could ask all kinds of questions like instead of coming up with an argument justifying slavery and instead of responding directly to someone who explains why slavery is immoral and wrong, you could just come up with a fake rhetorical question.  And you could say but who would pick the cotton, which is not really a sincere question because that’s not really what they’re asking.

00:07:05

If you say, but who would pick the cotton, what you’re really saying is we all take it for granted that the cotton has to be picked.  That’s our ultimate value, so whatever you propose, you’re going to have to guarantee that the cotton will be picked.  So unless you can prove to me that the – your free market system abolishing slavery is still going to result in cotton being picked, you haven’t satisfied your burden of proof to me to get rid of slavery, which is exactly what Mossoff and these guys are saying when they say things like, well, how would you have – how would a novelist make money?  How would a pharmaceutical company recoup their cost without IP law?  So they ask this question, but the question is a loaded question because it takes for granted some assumptions that I don’t share and that free market economists don’t share because we don’t think there’s a guarantee to a profit, and there’s no guarantee to recoup the costs of your investment.  I mean what the hell is that?  So one reason, and my last thing, and I’m going to stop – shut up in a second because I talked over you guys, and I ranted.  I kept changing my subject many times.  I was so irritated because…

00:08:18

ANTONY SAMMEROFF: I didn’t notice.

00:08:19

STEPHAN KINSELLA: Well – he has – he poses as – he doesn’t – so he acts like we’re all friends, like we’re on the same side.  Like you and he, it’s a jolly little friendly debating club.  But it’s not – I mean the reason I got so annoyed by his laughing at the absurd examples people will say – so someone will say, well, maybe someone will use trademark, and they will get a trademark on COVID.  And then he laughs, and it’s like, yeah, but this is – you’re laughing as if you’re in on the joke.  But you’re really in support of a legal system that does lead to these absurd consequences.

00:09:13

And I gave up cataloguing on – I had a website – I had a post which I would update every few months.  It was called the Trademark, Copyright, and Patent Horror Files.  I just gave up updating it because every month there’s just another insane example, someone going to prison for uploading a Wolverine movie, people dying of Fabry’s disease because there’s only one manufacturer of the drug because they have a patent on it, the guy that invented RSS, which we’re benefiting from by podcasting and all this stuff, Aaron Swarz committing suicide because he was facing basically a life in prison for uploading some academic articles to the internet using a Columbia University internet connection.  And you can dismiss these examples, and then so Mossoff’s reply would be something like – every time you would come up with an example, Antony, he would say something like, well, there’s abuses in regular property law too.  Or it’s not perfect either, or there’s gray areas too, or the courts might get it wrong from time to time.

00:10:24

So he keeps wanting to push it back into this analogy or metaphor and to show that it’s like property rights, which is just – he’s actually kind of correct.  Lawyers are good at making money.  They will adapt to a system, and they will – and then the business people will find a way to profit off of the given legal rules.  I’m sure that people made money off of selling uniforms to the Nazi guards for the concentration camps during the Nazi German period.

00:10:57

TOM LAIRD: Yeah, Hugo Boss.

00:10:58

STEPHAN KINSELLA: Okay.

00:10:58

ANTONY SAMMEROFF: There was a…

00:11:01

STEPHAN KINSELLA: Volkswagens and chemical suppliers, Zycon, the whole deal.  It’s like…

00:11:06

TOM LAIRD: IBM.

00:11:06

STEPHAN KINSELLA: People make money.  So what?

00:11:10

ANTONY SAMMEROFF: There’s plenty of corporations and…

00:11:11

STEPHAN KINSELLA: So what?

00:11:11

ANTONY SAMMEROFF: There’s a couple of things there.  I mean a lot of things that have been considered to be public goods have been shown to be able to provide – be provided by the market.  I mean obviously people would think how is a radio station going to charge its customers, but they put ads on?  I think the argument that he might have made against your – because one of my arguments would have been I couldn’t throw it in because it was strapped for time.  But it’s like, look.  Millions of people are dying in Africa because they can’t ship generic cheap medications because of copyright and patent laws – patent laws rather.  Millions of people are dying, and I think his argument was, well, you could say the same.  There’s billionaires in the world, and we could just say millions of people are dying because we don’t shoot Jeff Bezos down to $1 billion and give the rest of his money to Africa.

00:12:10

STEPHAN KINSELLA: Well not – so not just that, but if you take this argument – I mean, first of all, what is an objectivist?  Because objectivists used to be kind of principled.  They were minarchists.  Okay, let’s grant them that.  I can forgive Ayn Rand and her followers of their minarchism.  But at least they were serious minarchists except for the IP issue.  That was their big mistake I think, but they at least had principles.  But when did this principle come about that the way we evaluate whether we ought to have a law or whether it’s a good law is whether or not some policy goal is reached like enough – so, for example, you could argue, like some people do, like literally and some free-market types do.  I can send you links to this.  It’s astounding.

00:12:53

Instead of having or in addition to having – it depends upon who you talk to – instead of having a patent system, which gives some kind of property rights-like incentive system allegedly to people innovating because they’re able to recoup their costs by basically using the force of the government to stop competition for 17 years, so that’s the idea.  You could have government subsidies of innovation.

00:13:22

Now, I think even Terrence Keeley, who is a friend and pretty good on this and Boldrin and Lavine who are the kind of free market utilitarian guys who are argue the empirical argument against patent and IP in their book Against Intellectual Monopoly.  Even they sort of lean because they have these utilitarian or consequentialist leanings.  And they’ll say, well, it would be more efficient or maybe better if the government just subsidized innovation with basically a system of prizes or awards, which they do already, by the way, with the military industrial complex and with the National Science Foundation like the US.  And I mean they’re already doing that, but the point is this.  According to the theory, this utilitarian theory of IP advocates like Alex Tabarrok and Richard Epstein, these kind of guys and the – even the more mainstream guys like Stiglitz and these guys – they think that if – with no patent law, let’s say, you’d have some innovation.

00:14:31

They’re not dishonest or stupid enough to say that no one would ever invent anything, or they wouldn’t say that no one would ever, ever paint a painting or write a song or write a novel without copyright law.  What they say, the more honest ones – they’re a little bit more sophisticated – is they say that there’s a certain amount of production, but it’s an underproduction because they believe in this public goods argument, this market failure argument basically.  They think that the existence of this free rider problem and the inability to recoup your costs because people can copy – compete with you too easily because they have to copy your formula or whatever instead of making a new factory that competes with your car factory.

00:15:14

They have to – all they have to do is copy the formula, which is not true by the way.  This is not – you can’t just compete with someone by copying what they did.  This is also all false.  But the point is they think that there’s a suboptimal amount of production of intellectual goods in a state of nature, let’s say, or even in a minarchist government with no IP law.  But you can go – you can increase that amount by having a reasonable amount of patent and copyright protection.  But if you go beyond that, then you start hurting it.  So they think of this bell curve idea, and there’s an optimum, and most of them have this intuitive sense that we’re too far on the wrong side of it.

00:15:52

If you ask Mossoff, he probably would admit that 130 years for copyright term when it used to be 14 is maybe a little bit too long.  He might say that.  He might even admit that 17 years for a patent is too long for some industries.  But he probably doesn’t want to cede the ground right now, and some people in his camp are so consistent and principled they basically advocate infinite or perpetual terms.  But they’re the ones that are consistent like Lysander Spooner and some Randians that I know.  They actually advocate – and J. Neil Schulman, my friend who died last year.  They advocated basically infinite terms at least for copyright if not for patent.

00:16:36

TOM LAIRD: But it would seem absurd to me.  For example, I could decide that I’m going to go out tomorrow and I’m going to sell a whole load of sandwiches.  So I sit in my house.  I buy the bread, and I buy everything, and I make a whole shitload of sandwiches.  I go out in the street.  I set up my stall, and lo and behold, who’s just set up a stall 10 yards down the road from me?  Oh it’s Sammeroff, and he’s managed to source his bread cheaper than I did, and he managed to source his ham cheaper than I did, and he’s selling the sandwiches cheaper than I did, and suddenly I’m at a loss because nobody is buying my sandwiches.  Somebody should have to recoup.  How do I recoup the cost of making all those sandwiches?

00:17:16

STEPHAN KINSELLA: Right.

00:17:16

TOM LAIRD: Or you don’t.

00:17:17

STEPHAN KINSELLA: And the honest answer to that question is when you say this people think you’re being a smartass or you’re being – but the answer is you’re business – your failed business model is not my problem.  I mean…

00:17:30

TOM LAIRD: Correct.

00:17:30

STEPHAN KINSELLA: The point of law and justice in libertarian theory is to favor a set of conditions that give everyone security of property rights that would generate a free market and probably capitalism of some type if it was allowed to flower.  And then within that system, it’s up to you to figure out how to make a profit.  Let me finish that thought, but let me return to one thing I forgot to finish.

00:17:57

So the point I was making about this bell curve idea is that even according to the best interpretation of these utilitarians, which I think Mossoff really is even though – so Richard Epstein is more like an honest advocate of IP law from a utilitarian perspective and Alex Tabarrok, these kind of guys.  But Mossoff pretends like he think it’s a right or a natural right, which is, by the way, dishonest and wrong.  It’s wrong. I won’t say it’s dishonest.  His interpretation of Jefferson and Locke – I think if you look at the scholarship.  There’s a guy named Ronan Deazley.  He may be Scottish.  I’m not sure.  But the literature is pretty clear that no one thought of IP rights as natural rights.  And just because you can call them a property right and then – that doesn’t mean it is.

00:18:45

But here’s my point.  Even the best interpretation of this argument that we need to have some limited term of monopolistic protection of your ideas so you can recoup your cost and so there’s a bell curve.  It’s the maximum.  The point is – so imagine this pharmaceutical example that they keep throwing out.  And that was the whole impetus of the debate was about the development of drugs, and let’s get back to that too in a second.  Let me keep – I need a device that can help me unstack my stuff like in a reverse Polish notation, fourth language or something.  I can remember where I left off and recourse myself.

00:19:23

But the – so the point is according to, say, Mossoff’s theory and all of his colleagues’ theory, you’d have an underproduction of, say, innovation in pharmaceuticals if you don’t have a patent system because there are just some drugs that are too expensive to do R&D on that you might lose money on.  And if you – at the margin, if you can’t get a few extra hundred million dollars because of – with a patent protection safety valve plus this – what did you call it, Antony?  Green – something green feeling or green.

00:20:00

TOM LAIRD: Evergreen.

00:20:01

ANTONY SAMMEROFF: Evergreening.

00:20:02

STEPHAN KINSELLA: Evergreening.  By adding new improvements or using the FDA system itself to sort of extend your patent even when the patent is expired.  Like that drug patent that this guy got in the US about three years ago, and he raised the price by 10,000%.  Everyone accused patents of that, but it was already off of patents, but it was still protected by an FDA monopoly, which is like the patent.  So there’s ways of basically you’re right.

00:20:28

Anyway, the point is even according to Mossoff’s theory, there are some pharmaceutical innovations at the margin even with a patent reward being added on that won’t get made.  So logically the government should come in and have a trillion-dollar bonus system to give people rewards, which the government is flirting with doing right now with all these companies searching for vaccines.  They’re talking about, well, we have to incentivize them, and so in other words, what if the incentive provided by the patent system, which is at best an extra incentive on top of the free market incentive, what if that’s not enough?  So there’s always innovations that we’re missing out on because the government is just not doing enough to tweak things in the failures of market – free-market capitalism.  But, to be honest, does that sound like an argument Ayn Rand would be making?  I mean she was the ultra capitalist.  What the hell is this stuff, this market failure stuff?

00:21:31

ANTONY SAMMEROFF: The same sword slices both ways as well because you can say, well, without the guarantee of a patent who’s putting up the money to research that drug.  But the same argument goes the other way.  Well, whether patent, who’s going to bother to put up the money to research that drug when someone might just beat them by a couple of weeks?

00:21:52

STEPHAN KINSELLA: Well, that was the thing…

00:21:54

ANTONY SAMMEROFF: That’s a deterrent.

00:21:54

STEPHAN KINSELLA: So you brought that up, and he didn’t address – so…

00:21:58

ANTONY SAMMEROFF: He squirmed out of that kind of by saying, well…

00:22:01

STEPHAN KINSELLA: Yeah.  So right now, we have, what, 200 companies around the world, maybe more.  They’re all searching for a vaccine.  Now, why are they doing it?  I don’t know.  Is it humanitarian?  Is it eleemosynary?  Is it for profit?  Is it in the hopes that they will be the first and get a patent?  I mean I’m not actually even clear, but the point is, like you said, what if there’s the 201st company that’s like fuck it.  I’m not even going to try because even if I put all this money into it, if someone else files the patent first then I won’t be able to do even what I’ve invented.  And so it clearly – you can imagine cases where it dissuades innovation.  But back to, Tom, your example about the sandwich shop or something, so here’s the essence I think of one of the mistakes that’s made by the IP guys.

00:22:54

And see, here’s what annoys me is that they – people like them will call people like me a commie or a socialist.  If you’re against IP, it’s because you’re for idea communism and because you don’t appreciate the importance of the intellect and all this stuff.  It’s like, you know, I don’t believe that I should own my wife or my son’s love for me or the memories of my grandfather.  But because I don’t think I should own them doesn’t mean I think they’re not important.  It’s just – there’s a – so that’s number one.  Just because something is not an ownable, tradable good doesn’t mean that you don’t value it.  I mean we value – I mean the Randians value abstract philosophy and physics research, but those things are not covered by the patent system.  Or mathematics, right?  Oh so does that mean that because they would agree that the patent system doesn’t cover mathematical algorithms, the laws of physics and philosophical research, because they’re too abstract to be covered, does that mean that they don’t value philosophy, math, and physics?  No.  So the whole – that whole premise is ridiculous.

00:24:01

But – so here’s the fundamental point.  The example you gave is normal free market competition, and what we sometimes forget is that, yeah, we all cheer on a harmonious system of rules that allows us to live in society with each other.  And then it generates the possibility of cooperation, living in civilization with other people, the division of labor, trade, and yes, competition and the possibility of profit and rising standards of living, all that kind of stuff.  But one thing that we can sort of lose sight of is that profit is an unnatural thing because the natural rate of profit, the market is always tending towards some kind of equilibrium.

00:24:46

It’s never reached because it’s always changing.  It’s dynamic, but whenever you make a profit that’s like an unnatural thing.  Anything that’s above the natural rate of interest is sort of unnatural, and what you’re doing is you’re sending a signal out by the price system to the world because everything you do is public when you have a market.  It’s all public.  Hey, this guy has a sandwich shop or a pizza delivery shop or a new way of doing A, B, or C making vehicles that are self-powered, something like that.  If it’s profitable, that means that you’re pleasing your customers, which is a good thing.

00:25:23

But everyone knows that this is short-lived.  You can’t rely upon a God-given right to have this 28% profit margin for the next 1000 years because there are going to be competitors that will see what you’re doing.  And they will mimic you, and they will start, what we call it, competing with you.  And we’re all used to that, but the thing is we all think – we all see a certain amount of friction in that process because, for someone to – Antony to come up with a competing sandwich shop, he has to hire people, come up with a design, rent the shop, come up with the capital to do it.  It might take him a couple of years, so for awhile you have sort of this – it’s easier for you to make a higher profit than it will be later.  That’s just the way it works.

00:26:14

TOM LAIRD: Kind of mating season I believe they call it.

00:26:16

STEPHAN KINSELLA: But what the IP guys think is that for some industries, a much heavier percentage of your – of the value proposition that you’re counting on is based upon a simple design or a replicable pattern or information as opposed to scarce resources that are part of your capital goods and machinery.  So in other words, if you’re a millionaire because you sell Harry Potter novels, then it’s true that the value of the paper on the books is pretty small compared to what you can sell the impatterned book for.  That is, a book with the ink arranged in a certain way to spell certain words that people want to buy.

00:26:58

And the ideas – so here’s the idea that the IP guys are saying.  They’re saying that in the normal free market competition can be tolerated because it’s not that easy to compete with people, and so you have a resting period.  You can make a new idea, and if it works you can make some profit for awhile, and you can just take a breath and sigh and relieve yourself and just I can make money for awhile before I have to worry about these irritating competitors.  But if you’re making something that is easier to replicate like a pharmaceutical allegedly, which again is not that easy to replicate, or a book or a song, something that other people can easily compete with, they get nervous.

00:27:48

In other words, they think if it gets too easy to compete with you then the government needs to come in and slow down competition.  They need to put barriers – this is exactly why they – the more honest ones, they call this IP law is the imposition of artificial scarcity.  So in real property and in scarce things, tangible objects, there is actual scarcity, and it results in this slower competition process and results in the jerky world that we live in where profit is possible.  You can maintain it for awhile, but then gradually your profit margins get eroded down to the natural rate of interest, and people compete with you, and you have to keep innovating and pleasing your customers and staying on top of things.  But for goods that are more intellectual-based or pattern-based, it’s just too easy.  That’s just intolerable.  It’s just too easy for people to compete with us, so we need to impose a scarcity where none exists in the realm of ideas to make it work more like the tangible world of trade that we’re used to.

00:28:58

TOM LAIRD: Well, even with…

00:28:58

STEPHAN KINSELLA: So they’re basically trying to take half of human action.  Human action is the use of scarce resources, which are naturally scarce and we have to economize, and the use of ideas and information that makes us more profitable and use things more efficiently over time.  They’re trying to hamper the second part, which is naturally infinite and abundant.  They’re trying to intentionally hobble it just so that it resembles the other, which is why Mossoff says that it’s a property right.  He’s right.  The government has treated it like a property right.  It’s possible for the government to do that.  Congratulations.

00:29:37

TOM LAIRD: But that’s kind of actually – kind of also creeps in on what you call physical trade and everybody’s job is suddenly – oh mine’s special.  Yeah, I get it.  We should have a free market, but when it comes to this particular thing that I do, that’s kind of different and I need tariffs to protect myself.  Everything else – everybody else’s job I understand.  Definitely there should be competition.  But in what I do, that’s really special, and that needs protected.  And I think it’s just an extension of that to artistic types, and the artistic types have got their special thing that you don’t understand and that needs to be protected.  It’s different.  And I think Ayn Rand was one of them.  Because she was a writer, she was – she wanted her books to be protected, and because Ayn Rand said it, the objectivists believe it.  It’s really that simple because whatever Ayn Rand said is the word of God.

00:30:41

STEPHAN KINSELLA: I mean what if – let me ask.  What if a poet told Adam Mossoff right now because do you think poets make any money now under a copyright system?  Poets don’t make any money.  Everyone knows that.  Okay, maybe they do, but do you know how they do?  By becoming songwriters or something.  They basically use their skills in another – they find a way.  They leverage it.  But the point is copyright law doesn’t guarantee that everything is going to be successful.

00:31:07

Okay, if I write a book of poetry, I can use copyright law to sue someone and use the power of the court to prevent them from copying it, like anyone really wants to anyway.  But copyright law doesn’t guarantee that poets make any income.  So what if some hippy-dippy poet guy told Mossoff, well, under the system right now of western capitalism where everything is profit-oriented and people only care about blah, blah, blah, your copyright system doesn’t guarantee me an income.  But you don’t think poetry is not important, do you?  So why don’t we have the National – I don’t even know, the National Endowment for Humanities should give grants to deserving poets and people of merit so that this work is not lost for the ages, blah, blah, blah.  I mean…

00:31:57

ANTONY SAMMEROFF: Don’t give them ideas, Stephan.

00:31:59

STEPHAN KINSELLA: You know what?  Everything I say they actually already say, so I’ve got a couple I’ve thought of, and I’m afraid of posting some of them because I might give them my ideas.

00:32:08

ANTONY SAMMEROFF: So it’s particularly interesting from the Randians because Atlas Shrugged is absolutely full of examples of inferior businessmen running to the government to get protections on their industry.  One of the interesting things is after the debate someone posted to me on Twitter most charitably, hey, Antony, if you don’t believe in intellectual property, why do you have books on Amazon?  I didn’t give the question an honest answer because I didn’t think it was an honest question.  I think the guy was…

00:32:42

STEPHAN KINSELLA: It’s not.  It’s not.  It was confused at best.

00:32:42

ANTONY SAMMEROFF: The guy was just kind of being a dick.  But – well, it doesn’t look very good to me if I don’t have books on Amazon.  That’s one of the main places where people search your name, but hey, people don’t actually know how hard it is to get your books to people.  If someone is going to fucking forge copies of Universal Basic Income – For and Against and go and sell them like they do in – where I was in India, lots of copies of well-known books stacked up to sell people.  They reprint them.  Hey, that was good for me.  I’d like the word to get out to as many people as possible.  I – Nine Inch Nails managed to make a profit when this whole Napster started – thing started by connecting with fans, and they just released (indiscernible_00:33:31) released a dual-case box set thing.  And if you were a super fan, you could get an exclusive performance for a couple of grand and stuff like that.  So people find ways to…

00:33:43

TOM LAIRD: They just have to box a bit more clever.

00:33:45

ANTONY SAMMEROFF: People – yeah, people need to find ways to monetize things.  They found ways to monetize the radio era waves.  If you’ve written a great book and lots of people read it, you can crowd fund it and say, do you know what?  Realistically I need 80 grand to take the – to take a year and a half off to write this book, and people will find ways.

00:34:05

STEPHAN KINSELLA: There’s a great quote by Francis Ford Coppola who’s – the – is he The Godfather guy or one of these guys.

00:34:13

TOM LAIRD: He’s The Godfather and Apocalypse Now.

00:34:15

STEPHAN KINSELLA: So he’s got this kind of offhand comment about when you try to make it as a new young hustler or artist, maybe you wake up at 4 in the morning and you write your novel for three hours.  And then you go to work for your day job.  And so basically he was saying that maybe one method is just be your own benefactor.  I mean that’s what I do.  Everything I – like this podcast.  I’m not getting paid for this.  Why am I doing this?

00:34:43

ANTONY SAMMEROFF: Why the fuck are we doing it?

00:34:44

00:34:46

STEPHAN KINSELLA: But that’s the point.  This should be impossible according to these guys that think everything has to be – it’s part of – everyone has a complex life, and they support their own values.  They go to church or they go to museums, or they go to an art show, and they basically have a job doing this during the day, and they make – and they combine their activities.  And they basically subsidize things that they like.  There’s a breakdown between consumption and leisure.

00:35:14

But let me go back to your Atlas example because this is interesting.  For some reason The Fountainhead is the first book I read that sort of got me on this road.  But now I can’t stand The Fountainhead because everything about it drives me nuts.  It’s not libertarian.  It’s basically a weird, narcissistic guy who hates his clients and won’t listen to what they want and quasi-rapes a woman and also engages in intellectual property terrorism.  He blows up this – someone else’s property.  Okay, granted it’s a state-sponsored project, but he was involved in it, so if anything, he’s guilty.  I mean – but so the whole thing is not libertarian at all.

00:36:01

TOM LAIRD: I think Antony’s friend called it the book in which everybody in it’s a dick for no apparent reason.

00:36:06

STEPHAN KINSELLA: Right.  I mean the only thing about it is it does teach some young people who are looking for some excuse to be – to stand up for themselves and to be individual.

00:36:19

ANTONY SAMMEROFF: The best review I saw on Amazon was someone who’s like, I’m an architect, and due to this shitty book there’s so many people that commented in the architecture field willing to do whatever they want.  And it’s just drawn a bunch of assholes to become architects.  There’s also parts that I love in The Fountainhead.   But I still don’t see why Howard Roark couldn’t have just built one or two shitty buildings to make himself a millionaire.  And then he could make all the crazy modern art that he wanted.  It’s really funny because Ayn Rand hated Schoenberg, the atonal composer.  She just hated atonal music.  But if she had actually taken the time to study the philosophy of atonal music when it came out, it was literally the philosophy of Howard Roark.  It was like all…

00:37:07

STEPHAN KINSELLA: That’s interesting.

00:37:08

ANTONY SAMMEROFF: Their ideology was all about that not staying where the movements – not stagnating in music, moving things forward.  Their music was like Howard Roark’s crazy buildings that no one liked because they’re literally monstrous.

00:37:27

STEPHAN KINSELLA: Well, to her credit and to her followers’ credit, they’re a little bit vague about – they’re not insistent that her aesthetic theory is like an ironclad part of her – like her core philosophy is just the formative branch as you know: ethics, metaphysics, what, epistemology, and politics.  But aesthetics, sort of like her romantic realism and all this stuff, they sort of admit that that was more of her opinion than really…

00:37:55

ANTONY SAMMEROFF: Yeah, but I mean I saw her in an interview saying something – I think it was realism.  It wasn’t art.  And she said, and I can explain to you why it’s not art.  So she did actually believe that.  I think romantic…

00:38:07

STEPHAN KINSELLA: Well, no.  She did think that – she thought art was a selective recreation of reality, so I guess realism would be if there’s nothing selective about it, you’re not selecting anything.  Like a photograph – some people argue that photographs shouldn’t have had copyright protection because you’re just depicting a fact about the universe.  But then people started saying, well, there’s some original skill involved in selecting the angle and the lighting and the shutter speed and the film grain or whatever.  I think it’s all nonsense, but no.  So let me just – but on Atlas, Atlas is way better I believe.

00:38:44

It’s got a few pro-patent themes, but they’re kind of muted, and they’re not dominant.  Atlas is way more libertarian and a way better book from our point of view I think than Fountainhead.  But there’s a couple of interesting things about it.  So she does have a couple things where the government is portrayed as evil because they’re taking Rearden’s patents for his Rearden medal.  But – and that echoes what Mossoff was sort of saying about the – some of the pharmaceutical patent issues.  But when he was talking about the Wright Brothers example and he was trying to say that that example has been debunked, and we can get into that if you want.  I think is entire explanation for that is just fallacious.

00:39:33

00:39:36

TOM LAIRD: You can expand on that if you want.

00:39:38

STEPHAN KINSELLA: It’s a loaded – so what Antony pointed out was this commonly given example that the US aviation industry was delayed and impeded for a decade or two.

00:39:52

TOM LAIRD: As was the car industry.

00:39:53

STEPHAN KINSELLA: Right because of patent battles by the Wright Brothers and things like that.  And by the time of World War I, the French and I think he even mentioned the Turks, which I didn’t know about, they had already been more advanced because they weren’t subject to US patents, you see, so it’s a regional system.  It’s a national system.  Anyway, so – and then apparently what I’m gathering – I don’t know the history in detail of this, and the guy is talking on it like Antony and Mossoff are not really deep patent law experts.

00:40:23

So I’m not sure exactly, but I think what you were saying – I think what happened was probably around World War I or something after that, Roosevelt or whoever was in charge – they came together and they had some regulation or some law where they basically forced what is like a compulsory patent license on the industry until the ‘70s.  Okay, and Mossoff sort of refers to that as like, oh so the Roosevelt administration, which was socialist, came up with this fake story to justify taking their property.  But you understand that the government has been granting these patent privilege monopolies, and if the government restricts their scope, that’s not taking a property.

00:41:09

It’s reducing an unjustified privilege they had granted before.  And furthermore, he mentioned right after that that – like the US aviation industry continued to be the pioneer of the world for decades.  Presumably I think he means after World War I until the ‘70s, but that was during the period where the patents were, according to him, obliterated.  So it’s like, well, how could the US industry be so innovative for 40 years, 50 years if the patents had been hobbled by Roosevelt?  It’s like the whole story makes no sense.

00:41:48

But on Atlas let me just say one thing.  You have at the end, if you remember, this Judge Narragansett writing – he’s basically writing the new constitution for the free world, for Galt’s Gulch, which is kind of minarchist, which is always glossed over by Randians.  But it’s basically he’s taking the American constitution and he’s editing it, like striking out a word here or there.  But that would be copyright infringement according to strict Randians.  You’d be stealing someone else’s property, number one.  And number two, by the way, by that same logic, if you are such an America-phile like Rand was and you think that the US constitutional system was so genius and gave us these – this brilliant system of government that has allowed us to be wealthy – well, theoretically the founding fathers or whoever the guys you want to give credit for coming up and basically inventing this new system, they own it.  They have a copyright or a patent in that system, and they have a right to charge everyone who’s using it a royalty, which we would normally call taxes.

00:42:59

So basically the entire Randian idea on copyright could justify taxes because government gives us all these great things.  Why should the government – by the way, why should the government be nonprofit?  The whole idea is stupid.  Why should the government be a minimalist government that just takes in barely enough to survive?  Why shouldn’t they charge the going rate for their services because they own it?

00:43:20

And the other thing was, if you remember, in Atlas Shrugged, remember the whole little mid-story with Dagny and Hank, and they hired that physicist guy who eventually left and got recruited by Galt, the younger guy, because they found Galt’s old machine in that abandoned 20th century motorcar.  And they paid him to try to reverse engineer it, which, by the way, would be another violation of intellectual property or patent rights according to Rand’s stuff because they’re taking an invention that Galt created and they’re just tinkering with it, and they’re learning from him.  They don’t have the right to do that.  So there’s a lot of examples in Atlas Shrugged where she just – if she was applying her own IP law consistently, you couldn’t have even had that plot to dice.

00:44:06

TOM LAIRD: It’s not like Dagny Taggart invented railways.

00:44:10

ANTONY SAMMEROFF: If there was IP on railways then Dagny Taggart wouldn’t have been allowed to make her own rail lines.  It’s a weird idea that just because one person comes up with something everyone else suddenly needs to alter their behavior.  We’re not allowed to – it’s like – it’s a weird view.  So everyone else is not allowed to use their own property the way they see fit because someone did something first.

00:44:38

STEPHAN KINSELLA: And the argument I hear often, which drives me insane – so first of all, let’s just talk about patents because copyright is different because it is true that most copyrighted works are – they’re original because – in other words, it would be unlikely someone would write exactly the same novel later.  However, everything is influenced over everything else, so nothing is 100% original.  But copyrighted works I would say are original.  But for patented works, most inventions come about when their time has come, and they’re basically inevitable, and they can only come about at a certain time in history when the preconditions are ready for it.

00:45:18

ANTONY SAMMEROFF: The material forces of production are sufficiently mature as Mark Twain said.

00:45:24

STEPHAN KINSELLA: You couldn’t have a transistor invented by the Greeks, but in 1950, someone is going to invent the transistor.

00:45:31

ANTONY SAMMEROFF: Right.

00:45:33

STEPHAN KINSELLA: So – and this is a good thing about human society, by the way.  But what drives me nuts is if you say something like, well, what’s wrong with – what’s wrong if I learn from other people and imitate them and compete with them and use a similar design that they’re doing like for a smartphone or for the idea of a four-wheeled automobile or a four-legged stool, whatever, a kite, an airplane, light bulb?  The answer will be this kind of snarky, smartass retort, and they’ll say something like just come up with your own idea.  And I’m like, well, is that a directive?  Is that supposed to be an argument?  Is it a question?  Is it serious?  I mean the question is what is wrong with copying what you learn from other people that they basically broadcast to you by making their ideas public?  What’s wrong with it?  And the answer, just come up with your own idea, is not an answer.

00:46:36

I mean if you just think about the implications of this it would basically kill human life.  Like what if only Ford and his heirs could have a four-wheeled car or Mercedes or whoever came up with it first?  And so everyone else just come up with your own car.  Just make one with six wheels, or if the railroads now have a certain width of their wheel spacing because of the Roman chariots from 2000 years ago, just come up with your own system.  So then all the railroads in the world would have different spacings, and they would not be compatible with each other.  You – everyone has to have a different size of cargo crates, the ship containers that they put on the ships because you can’t use exactly what I did.  Just come up with your own.  It’s like, well, it’s not even an argument.

00:47:28

TOM LAIRD: Well, I mean the automobile one is a good one because I know Henry Ford was locked up in court for about 20 years trying to get his vehicle onto the market because some asshole had just – it was just – he looked at carriages, and he thought – and he looked at steam engines.  And he thought, well, somebody some day is going to put the steam engine and the carriage together, and you’re not going to need horses anymore.  So he basically scribbled down – I can’t remember the guy’s name.  He basically just scribbled down his idea of a horseless carriage, which there was nothing behind.  He had no idea how to make it.  He had just done this drawing and patented it, and Ford and other automobile manufacturers had to pay this guy loads of money just so that he would release.

00:48:21

STEPHAN KINSELLA: And people don’t – they don’t understand.  I mean capitalism is so – and the free market is so powerful that we’re surviving even now with the hundreds of millions of people that we’ve just artificially unemployed because of the COVID lockdown crap.  There’s all these regulations and these implicit taxes people pay, and the little people don’t see it.  They don’t understand all the royalties and all the buyoffs and all the regulatory fees and higher costs at Apple and motor companies that they have to pay just to stay in existence.  And people just get used to it.  They absorb the costs.  They’re paying the cost of course because the price of their goods is higher, or the innovation is lower, one way or the other.

00:49:07

But if you just imagine also every year, every month probably, at least every few years, there’s an innovation like in automobiles or trains or airplanes, something that is pro-safety oriented, like the idea of these windshields that have this plastic layer in the middle that doesn’t shatter or just seatbelts or…

00:49:28

TOM LAIRD: Airbags.

00:49:29

STEPHAN KINSELLA: Airbags, anti-lock brakes.  A lot of these things are actually patented, and for awhile, your competitors – they literally cannot put that innovation into their own car because it would be illegal, and therefore, some people die.

00:49:48

ANTONY SAMMEROFF: It’s funny.  You probably technically can’t even put it in your own car.

00:49:55

STEPHAN KINSELLA: No, you can’t.  This is the – and this is more because of copyright than patent because right now you have people – because everything is computerized now.  So if you buy a tractor or something or a big truck it comes with software, and that’s protected by copyright.

00:50:09

ANTONY SAMMEROFF: Oh geez.

00:50:10

STEPHAN KINSELLA: And so now the manufacturers like John Green –or not – John Deere tractors.  They’ve been suing people that modify their own tractors just to keep them up to date with the latest techniques or something like that because they’re basically violating the Digital Millennium Copyright Act, which – as an anti-circumvention procedure, which means that you can’t use a technology device to reverse engineer some copyrighted code even if it’s not copyright infringement.  So that’s how crazy it is.  Even if it’s not copyright infringement for you to do what you’re doing because it’s fair use or something like that, you still can’t circumvent the protection that was built in to try to stop copyright infringement.  And you have crazy things like that, and you have – who’s the big – Monsanto or it’s the big agricultural company in the US.  They sue people for – like if you’re a farmer and your neighboring farmer has some seeds that are patented seeds that he planted and he bought.

00:51:15

TOM LAIRD: It’s Monsanto.

00:51:16

STEPHAN KINSELLA: And the wind carries some of those seeds onto my property, and so my property is now growing some of these genetically modified patented seeds from Monsanto.  They can send the government goons out and burn your fields down or force – it’s insane.  It’s totally insane.

00:51:36

ANTONY SAMMEROFF: So…

00:51:37

STEPHAN KINSELLA: And this is what these guys support.  This is what gets me.  This is what they support.  I mean – and these are not just anomalies.  These are not just hard cases.  This is the essence of what IP law means.  It means that you can stop someone from using their own private resources as they wish even though they’re not committing a tort against anyone else.  And this is the dishonest argument that – I don’t know if Adam raised that in his debate with you.  But his type will always say – they’ll say, well, you’re objecting to IP law because it limits what you can do with your own property.

00:52:14

But all property rights do that.  That’s the next argument that they always use.  So in other words, and then they’ll come up with the tired refrain.  Well, my property – your property right and your fist ends where my nose begins.  But that is sort of a dishonest or at least it’s a mistaken argument because the whole argument assumes property rights.  It assumes you have a property right in your nose.  What that argument really means is that you do have the right to use your resources as long as you don’t invade other people’s property rights.

00:52:51

And if you do, then that’s the tort that you’re committing.  And the problem is what you’re doing is your action.  So the fact that I can’t swing my fist at your nose is not a limitation on the property rights in my first.  It’s a respect for the property rights in your nose, and it means that there are some actions I can’t commit.  So when you look at it like that, then the question would be, okay, if I see someone doing something like making a better mousetrap or making an airplane or making a pharmaceutical and if I use my own resources to duplicate something similar to that and sell it on the market, what action did I commit that violated the borders or committed a trespass against any of your property?

00:53:36

And you can’t find anything because there’s no – that’s why the legislation had to invent these things because there weren’t parts before.  That’s why patent and copyright didn’t come out of the common law.  And then the retort will be something like, well, it is a violation of your property.  It’s a violation of your intellectual property rights.  So you can see that their whole argument is circular because their question is to show why they should be regarded as a property right.  You can’t just say the government defines it as a property right, and therefore, it’s a trespass which justifies calling it a property right in the first place.  Their whole argument is totally circular and loaded.

00:54:15

00:54:17

ANTONY SAMMEROFF: So real quick before we finish up, I guess I’ve got two questions.

00:54:21

TOM LAIRD: Hey, I haven’t told my Lynyrd Skynyrd story yet, so anyway, get on with it.

00:54:25

ANTONY SAMMEROFF: Well, we’ll save that for the end, everyone who wants to hear his Lynyrd Skynyrd story.  First one is I guess you said to me in a private chat that Rothbard’s views on copyright were confused as on IP.  It would be interesting to hear just a little bit about that.  And the other question, as you said, that the debate wasn’t really a conducive environment to explore these issues.  So second question is if it was a – if I were in a conducive environment, is there anything that you’d add that you haven’t already that I could have said that I didn’t?

00:55:03

STEPHAN KINSELLA: I mean I’ve – so I’ve meandered over the years with debating and discussing and talking, say, for the last 20 years.  And so I’ve stumbled across different ways of approaching the issue or formulating it, and it depends upon the audience of course.  But the only way you can really do it is to summarize the principled case.  You have to explain what are we doing here.  What’s the whole purpose of this endeavor to why do we care about justice?  What is justice?  What are property rights?  Why do we have them?  What is their nature?  Think about it, think about it, and think about it.  And then what are IP rights?  Think about what they really are, which most people don’t quite understand because they’re not specialists, and this is an arcane area of law.

00:55:52

So have to explain that, and then you say, okay, now think about the original purpose of law that we talked about?  Does this make sense?  Can it be justified?  No.  So you have to build a systematic case, and that’s hard to do in 10 minutes.  You can do a sketch of it in 10 minutes.  But most people’s eyes glaze over, and they don’t understand half the terms you’re using.  So the only way to do it is to have an hour-long or a three-hour-long or six-hour-long.  So it’s difficult.  So I guess the best thing to do is to shoot holes in the case of other people and to try to make it clear who the burden of proof is on.  I thought you did a reasonably good job of that in what you were doing because you at least focused upon the distinction between scarce resources and non-scarce.

00:56:41

And so that was the fundamental point, and again, he never addressed that point, and he never did address the COVID point, like well, what if there are people that are not looking now?  Or what if there are people that are shut out that are looking now, and they find something because someone else gets a patent first?  I guess his answer was this Mayflower answer that, well, whoever gets to the New World first should get it.  That’s just part of capitalism, but that’s not a justification for this system.

00:57:10

Now, on the Rothbard question, so if you view IP rights as a unitary whole, which I do not because I think they’re all distinct.  And this is – again, part of the problem is you have to explain what’s wrong with the patent system, what’s wrong with the copyright system, what’s wrong with the trade secret system, what’s wrong with the trademark system, what’s wrong with defamation law.  They all have their own distinct – it’s like just because I’m against the drug war doesn’t mean that I’m also against having an American-type foreign policy.  They’re – you have to analyze each issue separately.

00:57:49

But because our opponents have lumped these things together, we have no choice but to use their term and then to try to find common features, which they’ve done, and to try to say, well, here’s what’s wrong in general.  But then that makes your case more abstract.  So I believe defamation law, which is not typically regarded as – by law professors as a type of IP law.  It should be because it’s very similar to trademark law.  They both are about protecting reputation rights.  They both are protecting some kind of intangible value that is not a scarce resource, your reputation.  So – and not coincidentally, the Randians support defamation law as well as trademark law and other types of IP law.

00:58:37

Now, Rothbard, to his credit, was completely against defamation law.  I think if he had been more consistent, he would have seen that this would also be a good argument against trademark law.  Now, trademark law is not one of the two big evils, so I don’t think he ever focused on trademark law.  He mostly talked about patent and copyright.

00:58:57

Now, on patent law, he said he opposed it.  His reasons were a little bit – they weren’t horrible reasons, but they weren’t the main issue.  But basically he thought patents distorted the – or he called it – I think he used the word skewed.  It skewed the – it skewed innovation and research like from protectable inventions to – or I’m sorry.  From unprotectable inventions like abstract ideas in physics or mathematics to practical gizmos that you could protect.

00:59:28

And there’s probably something to that.  So it has a distorting effect on the research and development industry just like the trademark and the copyright industry have a distorting effect upon culture because, for example, you can’t protect fashion rights exactly like in purses.  So what does Louis Vuitton do and Christian Dior?  They put their logos on their designs because that’s protectable by trademark.  So you see the Louis Vuitton logo, and you’ll see the Christian Dior logo on their purses and their dresses because – now, maybe that’s a good idea.  Maybe it’s not.  But I have a suspicion that these things like this happen in response to the legal system itself.  Like designers think how can we stop these knockoffs?  We can’t stop them with any kind of fashion copyright because it doesn’t exist.

01:00:22

So anyway, all these things distort society, and that – distortion means it changes things, and it makes things more inefficient and makes us more impoverished, and it harms us in one way or the other.  So Rothbard did see that problem with patents.  I don’t – he never did quite identify the ultimate problem with patents, which was the scarcity argument, and I’m not sure why.  I think it’s probably – so to simplify things, my three great thinkers would be Mises, Rothbard, Hoppe.

01:00:54

So Mises was this genius with Austrian economics and praxeology.  And he did emphasize scarcity, although he didn’t emphasize knowledge too much.  But he recognized it, but if he had focused more on the role of knowledge as the other half of action, I think even he was skeptical of patents, but he sort of was mainstream on that issue.

01:01:14

ANTONY SAMMEROFF: Wrong reading liberalism.  It sounds like – it sounded like liberalism, that Mises was against patents.  He mentions them as something that could prevent normal competition.

01:01:27

STEPHAN KINSELLA: He saw the drawbacks of patents, but he also admitted that, okay, on the other hand, there’s these other arguments.  And so I think he was a little bit vague.  Now, Hayek was even slightly better on this.  He saw the danger of impeding the spread of knowledge, which is what IP does, especially patents.  He has this great phrase.  Oh, I’m forgetting the phrase.  It’s in one of my blog posts, a fund of experience or something like that, like this amazing depth of technical and causal and engineering and other knowledge that we have inherited as humans from past generations.  And it makes us richer because the set of recipes and knowledge and ideas that we can dive into to make our use of scarce resources more efficient always increases over time.

01:02:20

I think actually this is the explanation of human progress, which is why I am so adamantly opposed to IP because one-half of human action is something that’s an infinitely spreadable resource that can keep building over time and can spread instantaneously across the globe.  Hayek even recognizes that it’s one explanation for why what we call developing or backwards societies can catch up so quickly—China or whatever—because all they have to do is just replicate the ideas that we have that some other country pioneered first: Europe or Britain or the West, America.

01:03:01

And so it didn’t take China that long to start catching up because now they can make iPhones, and they can make supersonic jets and things like that because they have the recipes.  And we use things that Chinese inventors invented 2000, 5000 years ago too.  But Rothbard’s problem was he had this cursory – I think it’s his chapter in Ethics of Liberty.  It’s called “Knowledge” – I think it’s called “Knowledge: True and False” where he attacks defamation law.  But then he goes into copyright and patents, and what he does is he basically – he redefines the word copyright to mean what he calls common law copyright.  But he redefines it in a way that is basically based on contract, but it would include what patents cover.

01:03:53

So it’s – Rothbard’s word, copyright, means what in his mind is a contractual system among people where they agree to sell something to someone else, which could be an invention, not just a copyrighted work, so some kind of device with a pattern in it, which I guess could be a book.  But I think the example he gives is a mousetrap, which is an invention.

01:04:16

But – and then you reserve the right to copy it, so it’s this kind of contorted contract argument, which doesn’t work in the end.  But the point is in the actual law there is actually such a thing as common law copyright even though I earlier said copyright had to be invented by statue and by legislation – not invented.  But it only arose because of legislation, which is true.  Copyright is based upon the Statue of Anne of 1710 and then the US constitution and then western – European systems after that.

01:04:51

However, there was some doctrine called common law copyright, but it had nothing to do with contract, and it had nothing to do with what Rothbard thinks.  It was basically a type of trade secret right.  It basically was this kind of right that said if you had a manuscript in your desk drawer of an unpublished work that you have written and someone else steals that piece of paper and they publish – they try to publish it first, you could go to court and get an order against them to stop it.  Now, that’s not what copyright law is, and that’s not what Rothbard meant by common law copyright.

01:05:29

And you could justify that by saying that, well, if you steal someone’s piece of paper, then it’s a type of trespass, or it’s a violation of contract or some kind of breach of trust, something like that.  And anyway, that refers to a world before things were digital anyway.  People don’t have manuscripts in their desk drawers anymore that aren’t published, and people publish their – so the whole idea is totally convoluted.  So Rothbard ends up saying that you could justify what he calls common law copyright, and that would include inventions.  But you couldn’t justify modern copyright and patent statutes.

01:06:06

TOM LAIRD: Right.

01:06:06

STEPHAN KINSELLA: So he just didn’t really drill down to solve this problem completely, and the problem is the way he worded it.  Nothing he says is really that wrong except for his reservation of rights idea and the way he thinks you can extend contract to get some kind of quasi-property right in patterns of information.  That’s his mistake I think.  That’s a mistake – a genuine mistake he makes.  And I think it’s basically incompatible with his other argument in the same book against reputation rights.  So it was just – he just didn’t see it because I mean he wasn’t a legal – he wasn’t a lawyer.  He wasn’t a legal scholar, and he only could go so far.  It’s not – I mean for me this is not a bashing or criticism of Rothbard at all.  The problem is you have other people that say even Rothbard, your anarchist hero, supported copyright.

01:06:57

ANTONY SAMMEROFF: Well, that’s…

01:06:58

STEPHAN KINSELLA: And I’m like, no, he didn’t.

01:06:59

ANTONY SAMMEROFF: Right.  And that’s not even an argument because people can make – people like to say, well, Adam Smith said these non-free market things.  And it’s like, yeah, Adam Smith didn’t have the benefit of Adam Smith.

01:07:12

STEPHAN KINSELLA: Exactly, exactly.

01:07:13

ANTONY SAMMEROFF: To improve on his ideas.  Hoppe – has Hoppe accepted your views on – has he adopted your views on copyright?  Has he adopted your views?

01:07:24

STEPHAN KINSELLA: Yeah, he has, and he – that’s what I was going to say.  My three greatest thinkers are Mises, Rothbard, Hoppe, and Hoppe was able to build upon Rothbard’s radicalism and his radical libertarianism and his own extension of Mises’ economics and Mises’ own praxeology and Mises – like the – probably the one advantage Mises has over Rothbard is that Mises did focus more on scarcity than Rothbard seems to in Rothbard’s writings.  And Hoppe picked up on that and integrated the scarcity part in his – so Hoppe is like a more neo-Kantian, Misesian, scarcity-emphasizing, Austrian like Mises combined with Rothbard’s improvements on and more radical political stuff.  So it’s the combination of that.

01:08:23

So Hoppe, like in 1988 – this was quite interesting.  I didn’t really come to my own views until around 1993 or 1994 when I was a brand new baby IP lawyer.  In 1988, there was a panel discussion at Mises Institute event, and I think on the panel was Rothbard, Hoppe, who was newly arrived to the US, and Rothbard’s new – what’s the opposite of mentor?  Mentee?  Protégé?

01:08:55

TOM LAIRD: I call it…

01:08:56

STEPHAN KINSELLA: Protégé.  Let’s say protégé.  And David Gordon and I think Leland Jaeger.  I think those four were up there.  And someone asked a question of Hoppe – now this is before IP was even an issue because this is before – the internet – as you guys know, the internet basically started in 1995, something like that.  And that’s when digital information started being tradable and shareable, and that’s when everyone started freaking out about copyright, like thinking it’s more important or starting worrying about it, one way or the other.  No one was paying attention to IP law before that.  It was just like this arcane thing that – like tax law or states law or immigration law.

01:09:35

So this is before this even – was even a topic.  I mean Rothbard had only barely mentioned this in that little chapter I mentioned in The Ethics of Liberty, which I think was published in ’82 the first time.  So Hoppe was certainly aware of what Rothbard had written, and Rothbard was sitting right next to him.  And someone asked him – they said something like what about property rights in ideas?  And Hoppe just like off the cuff said, well, if it’s an idea, then it’s not – if you can copy it, it informs your action, and you’re not trespassing on anyone’s property, so that’s it.  He instantly saw to the core of the issue.

01:10:17

And that’s because he had a really clear focus on basically praxeology and the importance of scarcity, like its role in human action.  Scarcity means that what you’re doing in an action is you’re employing a scarce means, but the employment and the decisions about what to do is guided by knowledge.  So he recognized instantly and intuitively that these are distinct things and that – so basically his answer was no.  So he’s written explicitly since then that he agrees 100% with what I’ve written, which was basically built upon his stuff and Mises and other people’s writings.  So he is 100% on board with my views on all of this.

01:11:02

ANTONY SAMMEROFF: Excellent.  Last question of the day.  Tom, tell your Lynyrd Skynyrd story.

01:11:10

TOM LAIRD: Well, as you can see, I’m wearing my Skynyrd t-shirt, which I bought about – I don’t know – a long time, over 20 years ago now.  It was in the 90s at the Royal Concert Hall in Glasgow, and I wanted to buy a t-shirt after.  The gig was great.  Hughie Thomasson of The Outlaws was playing guitar with them back then.  I think he’s dead now; Rickey “Rattlesnake” Medlocke from Blackfoot.  So it was a great gig, and I wanted to buy a t-shirt.  So I go back to where the official t-shirts are.  And they’re lousy.  They are really boring, overpriced t-shirts.  They don’t even have tour dates on them.  They’re just generic t-shirts, and then you’re talking mid ‘90s at about 25 bucks – the equivalent of 25 bucks a t-shirt.

01:11:56

So that was really expensive.  So fuck that.  I’m not buying a t-shirt.  I don’t care.  I’m not paying that, almost the same price as the concert ticket.  So I went outside, and there’s a guy standing with these knockoffs, and they were great.  It had the cover the Twenty’s album on it, and on the back it’s got the Lynyrd Skynyrd with all the tour dates on it.  And there were 5 – it was £5 a t-shirt.  I don’t know how the guy made any profit, but that’s not my problem, for his £5 a t-shirt.

01:12:24

And it’s lasted for years.  And the question is, what did Lynyrd Skynyrd lose out of that?  Well, first of all, fuck them.  If they couldn’t be bothered to provide a quality product for their fans, I’d have paid a premium but not that much for a premium.  Secondly, how did they lose?  If I didn’t buy the official t-shirt—I was never going to do that—and I didn’t buy the knockoff, they’ve lost twice because now I’m not going everywhere advertising Lynyrd Skynyrd on my t-shirt and telling myself about the great gig.  So they haven’t lost anything in that interaction whatsoever.  They were never going to make any money because I wasn’t going to buy that t-shirt at that price.  So that’s my knockoff story.

01:13:12

STEPHAN KINSELLA: That’s – so – go ahead.

01:13:15

ANTONY SAMMEROFF: So you did forget about the part of the story where you went out on tour playing Lynyrd Skynyrd songs at the same setting and the same night as them and everyone stopped coming out to see Lynyrd Skynyrd and started to see your band instead.

01:13:26

TOM LAIRD: That would have been consumer fraud if I pretended that I was Lynyrd Skynyrd.

01:13:30

STEPHAN KINSELLA: Well, that’s the other thing.  Cover bands don’t hurt their – I mean I don’t know if you’ve noticed this.  You seem to be even more of a live music and rock fan than I am, and I like all that stuff too.  But it seems to me that like in the beginning of the internet and cell phones and all this, all these artists freaked out, and they had all these signs up banning people from recording their shitty 28 kbps recordings from an iPhone in the audience.  But it seems to me like in the last 10 years they’ve relaxed a little bit because they’ve realized it really doesn’t…

01:14:07

TOM LAIRD: Bands bootleg their own gigs now.

01:14:10

STEPHAN KINSELLA: Well, that’s what I’m saying.  I mean you always had a few outliers like the Grateful Dead that always encouraged it, or they didn’t give a crap.  But the official initial response was kind of a panic and a freak-out, and then all these bands say no video cameras allowed.  And now everyone’s got a video camera in their pocket, and they’re like – they’ve given up, and they know it doesn’t really hurt them.

01:14:31

ANTONY SAMMEROFF: And it’s good if people are posting it to their Instagram Story or their Facebook.

01:14:36

STEPHAN KINSELLA: Well, yeah.

01:14:36

ANTONY SAMMEROFF: It’s free…

01:14:39

STEPHAN KINSELLA: Well, there’s a guy named…

01:14:38

TOM LAIRD: People who bought bootlegs bought the albums anyway.  Fans bought the stuff anyway.

01:14:45

STEPHAN KINSELLA: Well, I think that’s true, although I think that argument probably can tail off after awhile because…

01:14:51

TOM LAIRD: Okay.

01:14:52

STEPHAN KINSELLA: That was more true in the – like nowadays no one buys – I don’t think people like – that was probably true 7 years ago or 10 years ago when people were still buying CDs, and they still buy merch – merchandise and all that.  But I think nowadays people don’t – I don’t think people buy music.  I don’t think they even pirate music anymore because who wants to carry around a thumb drive with 17 petabytes of all the world’s music when you can just stream everything from Spotify?

01:15:17

ANTONY SAMMEROFF: Yeah, and people listen on YouTube, and they’ve found a way to monetize that because they put ads on the – ads – which is really annoying when you get a 15-second ad on a 3-minute song.  It’s like fuck you.

01:15:28

STEPHAN KINSELLA: They – and I think a lot of that is, again, the cultural distortion cause of a copyright.  A lot of these models would be different I believe without copyright because the reason YouTube can get away with that is because they can strike – they strike down videos that are unauthorized and that don’t agree to the advertising stuff.  And they do that because of the six strikes law, and that’s because of the copyright law, and that’s because the artist ultimately – like without copyright law, you’d probably have lots of free alternatives that just ignored all this crap.  And they wouldn’t do that, but they probably wouldn’t be as good or as curated, so you would pay something for something that’s fine and clean and simple.  But what’s interesting about I think what you’re pointing out is I think that the emergence of digital copying basically—torrenting, encryption, the internet, file sharing—basically has made copyright almost unenforceable.

01:16:36

So there is copyright now.  It does have a big effect on the big players, but there’s – everyone can pirate movies and songs and paintings, and everyone knows this, and you can’t stop it.  It’s just like – it’s like playing whack-a-mole.  So copyright ultimately is unenforceable because of technology, which to me is a good thing.  It would be like if there’s a way to evade taxes or to get marijuana or cocaine or something with complete impunity from the government, like totally hidden from their purview.  That would be a good thing.

01:17:10

TOM LAIRD: Bitcoin.

01:17:10

STEPHAN KINSELLA: Bitcoin.  Now, in the field of the production of physical goods, I think that something like that might be happening that will undermine patents, sort of like digital technology has undermined copyright.  So the ability of making one-of-a-kind – like just-in-time delivery or like your shirts, the t-shirts, you can just print a book from Amazon, or you can get a shirt made from – with only 10 copies made.  It’s not a big deal.  And in the future I think 3D printing will become more and more sophisticated.

01:17:51

And so as 3D printing becomes more of a real force, I think that’s going to undermine the patent system because then people will be able to have a printer in their basement or down at their co-op’s house down the street.  And they’ll be able to get a pirated file of a design of something and just go print whatever they hell – they can print their own iPhone or something eventually.  And they won’t need permission, and the patent holders won’t be able to stop it.  So I think that those are two good things is that the ways the international trade and the just-in-time delivery system and manufacturing on demand and 3D printing and torrenting and encryption and file sharing and maybe Bitcoin to some degree.  It’s all helping to undermine these horrible, archaic, wealth-destroying systems.

01:18:36

ANTONY SAMMEROFF: All right, well, thank you for re-joining us on the show for round two, great speaking to you and you guys at home.  Tune in soon for more.

01:18:47

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