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KOL326 | Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 1: Under the Influence…

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Kinsella on Liberty Podcast, Episode 326.

[Update: Transcript appended below]

Back on May 24, 2020, I appeared on the Scottish Liberty Podcast, 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. I was a bit drunk and it shows, and went off on a rant and was not as coherent as usual. The episode was entitled “Under the Influence… of Stephan Kinsella… Against Intellectual Property”. We recorded a second episode on May 30, 2020, entitled “A Sober Conversation with Stephan Kinsella…,” which was released as KOL289. I just realized I never posted the initial episode, so here it is, warts and all (unfortunately for fans of my drunken rants, I have quit drinking alcohol since I realized it’s a destructive poison with no benefits at all, so this won’t happen again).

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

See various links, embeds, notes below.

Youtube of the current discussion:

Previous Youtube from KOL289.

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 1: Under the Influence of Stephan Kinsella: Against Intellectual Property (May 21, 2020)

[Transcript of “Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 1: Under the Influence…” (May 21, 2020)]

00:00:03

TOM LAIRD: Welcome to episode 155 of the Scottish Liberty podcast with me, Tom Laird and, of course, the man who can, Antony Sammeroff.

00:00:13

ANTONY SAMMEROFF: That’s me.

00:00:13

TOM LAIRD: And possibly the man who can, Stephen Kinsella, big hitter from the Mises Institute and patent lawyer extraordinaire, and there he goes.

00:00:25

ANTONY SAMMEROFF: Author of Against Intellectual Property, a very influential book in the libertarian movement I have to say.

00:00:33

STEPHAN KINSELLA: The most intellectual book, and get my name right.  Let’s say Stephan.  Let’s say it.  Okay, can you guys say with me Stephanie?  Say it with me, Stephanie.

00:00:43

TOM LAIRD: Stephanie.

00:00:44

STEPHAN KINSELLA: Okay.  Take off the E.  Stephan.

00:00:47

ANTONY SAMMEROFF: Stephan.  Did you call him Stephen Kinsella?  Did you call him – did you actually call him Stephen Kinsella in the intro?

00:00:55

TOM LAIRD: Who?

00:00:55

STEPHAN KINSELLA: Yeah, he did.  It’s fine.  I’m used to it.  I’m used to it.

00:00:59

TOM LAIRD: It you want it pronounced differently, spell it differently.

00:01:03

00:01:05

STEPHAN KINSELLA: You can’t blame someone’s mother – so this is the thing.  You can’t blame their mother, man.  You’ve got to – there’s boundaries.

00:01:13

ANTONY SAMMEROFF: Well, I know.  I blame my mom for tons of shit.

00:01:17

STEPHAN KINSELLA: Like what?

00:01:18

ANTONY SAMMEROFF: I don’t know if I should say it publicly.

00:01:25

STEPHAN KINSELLA: Well, then don’t tease us.  Come on.

00:01:27

ANTONY SAMMEROFF: My ex-girlfriend blamed my mom’s mom for tons of shit as well.

00:01:33

STEPHAN KINSELLA: Like what?  Give me one example, just one.

00:01:36

00:01:39

ANTONY SAMMEROFF: I don’t – right at the beginning of the show?  There might be new listeners tuning from Twitter.  I tell you what.  They’ll have to actually start one of those websites where they vote.  If 100 people sign the petition, Antony will disclose embarrassing details of the way that his mom scarred him in childhood.

00:01:58

STEPHAN KINSELLA: You are so sweet.  You Scottish people are so sweet.

00:02:03

TOM LAIRD: Well, look.  It can’t get any more embarrassing than your pimp’s cushion that you’ve got behind you there.

00:02:09

ANTONY SAMMEROFF: Do you like that?  Look, I’ve got a nice set.  For those of you who are on…

00:02:14

STEPHAN KINSELLA: It’s like a – is it a Bengal tiger or what the hell is that?

00:02:18

ANTONY SAMMEROFF: For those of you listening through your podcast app, I am actually setting up against a leopard skin – leopard pillow.

00:02:27

STEPHAN KINSELLA: Do you have a Jabra too?  You have a Jabra too.  We’re both Jabra – Jabra buddies.

00:02:32

ANTONY SAMMEROFF: Jabra.  That’s really funny.  When I was in college, there was a group of weird jock guys that started calling me Tony Jabroni for some reason just because it rhymed.  It doesn’t even mean anything.  They just liked it.  And now I’m a real jabroni, Jabro.  I put the bro in Jabra.

00:02:53

STEPHAN KINSELLA: So when you say you went to college, what did you go to college in?

00:02:56

ANTONY SAMMEROFF: Oh God.  I didn’t know that I was going to be the interview guest.

00:02:59

TOM LAIRD: Exactly.  We’re doing the questions here, Mr. Kinsella.

00:03:02

STEPHAN KINSELLA: Well, I mean he – you brought it up.  It’s a point of interest.

00:03:07

TOM LAIRD: Okay.  Antony, you’re going to have to tell us now.

00:03:09

ANTONY SAMMEROFF: These are the golden moments that people listen to Scottish Liberty podcast for.  It’s not about the politics.  It’s about the banter.

00:03:17

TOM LAIRD: It’s not about that cushion.  But anyway, go for it.

00:03:19

00:03:21

ANTONY SAMMEROFF: Well, I studied popular music, and then I went and studied music and philosophy, and then I did a post grad in counseling studies.

00:03:30

STEPHAN KINSELLA: So things you could have done without a college degree.

00:03:34

ANTONY SAMMEROFF: Well, I mean – yeah, pretty much.

00:03:37

STEPHAN KINSELLA: No.  I’m fucking with you but…

00:03:38

TOM LAIRD: He could have.

00:03:38

STEPHAN KINSELLA: Defend yourself.  Defend yourself, my brother.

00:03:41

ANTONY SAMMEROFF: I wouldn’t have had the – I actually…

00:03:43

TOM LAIRD: The fun and the drinking.

00:03:46

ANTONY SAMMEROFF: Yeah.  One of my reasons for going was I thought people like me should have a degree.  That’s how pretentious I was at 22.

00:03:54

TOM LAIRD: Okay.  First question.

00:03:58

STEPHAN KINSELLA: What did you do your degree in?

00:04:01

TOM LAIRD: No, no, no.  It’s different.

00:04:02

ANTONY SAMMEROFF: Wait, wait.  Wait, wait, wait.

00:04:06

STEPHAN KINSELLA: He’s changing subject.

00:04:06

ANTONY SAMMEROFF: What did you do your degree in?

00:04:08

TOM LAIRD: So much for Antony losing his voice.

00:04:13

STEPHAN KINSELLA: His voice is – so it’s just me and you because his voice is out.

00:04:17

TOM LAIRD: Exactly.  So first question and it’s an important question.

00:04:19

ANTONY SAMMEROFF: I feel bullied.

00:04:20

TOM LAIRD: Considering we were talking about Rush before this started.  So the question is why didn’t America get prog rock?

00:04:28

STEPHAN KINSELLA: Well, I would challenge the assumption.  I mean why would you say that it didn’t get prog rock?  I mean I think that we did.

00:04:41

TOM LAIRD: Some Americans did, but it didn’t really take off in the way that it took off in Europe or elsewhere.  There wasn’t really – it was more kind of niche thing in America I would – that was my take on it.  It wasn’t very radio friendly.

00:04:57

STEPHAN KINSELLA: Are you a prog rock guy?

00:04:59

TOM LAIRD: Yeah, I’m a big proggie kind of guy.

00:05:03

STEPHAN KINSELLA: So Rush is like the pinnacle, right?  And Yngwie Malmsteen and Triumph and that kind of stuff, right?

00:05:09

TOM LAIRD: Well, Yngwie Malmsteen doesn’t – you’re not getting Yngwie Malmsteen in prog there.  I’m not having Yngwie Malmsteen.

00:05:16

STEPHAN KINSELLA: I know.  I know.  I know.  I know.  I have a 16-year-old son, and he can school me on everything, but he can’t get his driver’s license without my help.  So it’s like a symbiotic thing but…

00:05:30

ANTONY SAMMEROFF: It’s a symbiotic thing except for he’s like the parasite that’s sucking out your will to live with his criticism of every little thing that…

00:05:37

STEPHAN KINSELLA: Yeah, but that’s the point of having kids, to have a parasite.

00:05:41

00:05:44

TOM LAIRD: I guess.  I guess.

00:05:47

ANTONY SAMMEROFF: So…

00:05:48

STEPHAN KINSELLA: Wait, wait, wait, wait, wait, let’s go back up.  What do you mean you guess?  That was like a very vague, noncommittal.

00:05:58

TOM LAIRD: I’m sorry.  I have to keep you to the subject here.  Why doesn’t America…

00:06:03

STEPHAN KINSELLA: You don’t want to go to you.

00:06:06

TOM LAIRD: Why didn’t America get prog in the way that other countries got it?

00:06:10

STEPHAN KINSELLA: I mean why didn’t – I don’t know – Bulgaria get it?  I don’t know.  Why is America special?

00:06:16

TOM LAIRD: You can believe they got it.

00:06:18

STEPHAN KINSELLA: Really?

00:06:19

TOM LAIRD: Yeah.

00:06:20

STEPHAN KINSELLA: Tell me more.

00:06:21

TOM LAIRD: Okay.  So favorite Rush album.

00:06:28

00:06:31

STEPHAN KINSELLA: Probably Permanent Waves.

00:06:33

TOM LAIRD: Permanent Waves.  Okay, we’ll go for it.

00:06:35

ANTONY SAMMEROFF: Is it the one that goes [guitar sounds]?  I love that Rush tune, love that Rush tune.

00:06:44

STEPHAN KINSELLA: Give me 60 more seconds and I’ll tell you.

00:06:49

TOM LAIRD: Gee.  You’re a Rush fan, for cryin’ out loud.  If you can’t answer these questions, what chance are you going to get when you get to…

00:06:55

STEPHAN KINSELLA: I just want him to embarrass himself.  I mean 2112, Moving Pictures, Permanent Waves.  Those are the best ones obviously.

00:07:06

TOM LAIRD: Were you a Rush fan before you were a libertarian, or a libertarian after you were a Rush fan or was it…

00:07:12

STEPHAN KINSELLA: It all came together, to be honest.  So I had a buddy in like – I was 10th or 11th grade in high school, and I got my first driver’s license, and I got my car.  And I had a cassette player in my car, so he was like, Stephan, you need to get A, B, and C, and he’s like a hard rock electric guitar player.  So he said – so my first two albums were Queen Greatest Hits and Rush Permanent Waves, and that got me going.  And I was crazy after that.  So that’s just – I mean it’s boring.  I realize after a point it’s boring, but I love Iron Maiden, Rush, Triumph, Ritchie [Blackmore] – there’s so much stuff that’s boring to the people before and after you.  Before you, they think it’s not – it’s just not folk, and after you it’s like not sophisticated.

00:08:27

TOM LAIRD: Right.

00:08:27

STEPHAN KINSELLA: Like there’s a certain – everyone comes into it at a certain degree, so I love Triumph and Rush and Ritchie Blackmore, Rainbow, and Iron Maiden and…

00:08:41

TOM LAIRD: Sure.

00:08:41

STEPHAN KINSELLA: Van Halen and all that stuff.  That’s what I like.

00:08:44

TOM LAIRD: Only one of those was prog, so that’s back to the – give me an American prog outfit and…

00:08:52

STEPHAN KINSELLA: Well, I mean I don’t know – I actually don’t know.  I don’t pretend to be an expert on this.  I just like what I like.  I like…

00:09:00

TOM LAIRD: I told you we should have had Tom Woods on again.

00:09:03

STEPHAN KINSELLA: Tom Woods is like – Woods is Woods.  What can you say?  What do you think?  What do you – you tell me the best.

00:09:15

TOM LAIRD: Tom Woods should be down some forest somewhere doing live role play.

00:09:20

ANTONY SAMMEROFF: He looks like the last person to be into the kind of metal he likes with the growling vocals.

00:09:27

STEPHAN KINSELLA: But you know that’s an unfair comparison because everyone can be what they want to be.

00:09:34

ANTONY SAMMEROFF: I agree, but I’m just saying that he looks deceivingly like the kind of person who wouldn’t be into that and has quite a conservative demeanor.

00:09:41

STEPHAN KINSELLA: Look, look, look, look, look, look.

00:09:43

ANTONY SAMMEROFF: And he chided me for having long hair.

00:09:44

STEPHAN KINSELLA: Are we going to talk about intellectual property, or are we going to talk about this boring shit.

00:09:47

TOM LAIRD: Wait a minute.  I was sinking into that.

00:09:49

ANTONY SAMMEROFF: So he – go on.

00:09:52

TOM LAIRD: Why should I be able to download all of Rush’s albums and then reproduce them and sell them for my own profit?  Why should I be able to do that?

00:10:04

ANTONY SAMMEROFF: Why should Tom be able to do that?

00:10:07

TOM LAIRD: Why should I be able to profit off of Rush’s work?

00:10:11

ANTONY SAMMEROFF: Hard work.

00:10:12

STEPHAN KINSELLA: So – okay, so first of all, notice that you just mixed together two different things.

00:10:18

TOM LAIRD: Okay.

00:10:18

STEPHAN KINSELLA: Why should you download them?  Why should you be able to profit?  So those are two different questions.

00:10:25

TOM LAIRD: Right.

00:10:25

STEPHAN KINSELLA: And the answer to both is the same in a sense like because you don’t violate anyone’s property rights in doing it.  And it’s good for everyone…

00:10:37

ANTONY SAMMEROFF: That’s question begging.

00:10:39

STEPHAN KINSELLA: Yeah, I know.  I know, and I like when you did that to my enemies, but don’t do it to me.

00:10:46

TOM LAIRD: Well, talking of that, would that – would you be referring to his recent debate where apparently he claims that you were his Mickey from the Rocky movies, like you were his coach?

00:11:03

STEPHAN KINSELLA: Oh my God.  Hold on.  Let me open up my Mac notes.

00:11:11

ANTONY SAMMEROFF: All right.  Okay.

00:11:11

STEPHAN KINSELLA: I have so many notes on this whole topic.

00:11:16

ANTONY SAMMEROFF: I think the reason why Stephen said that is I did actually accuse…

00:11:19

STEPHAN KINSELLA: Stephan, not Stephen, but go ahead.

00:11:21

ANTONY SAMMEROFF: Now, he got me doing it, Tom, for fuck’s sake.

00:11:26

STEPHAN KINSELLA: Let’s – wait, let’s stop for a second.  I’m being – I don’t want to be an asshole.

00:11:31

ANTONY SAMMEROFF: No…

00:11:32

TOM LAIRD: Go on.  It’s never – it doesn’t stop us.

00:11:33

STEPHAN KINSELLA: You do know girls named Stephanie, right?  Things like that.

00:11:38

ANTONY SAMMEROFF: It’s totally justified.

00:11:41

STEPHAN KINSELLA: How hard can this be?

00:11:42

ANTONY SAMMEROFF: It’s totally justified.  I hate it when people call me Anthony.

00:11:45

STEPHAN KINSELLA: No, I don’t – I actually don’t hate it.  I’m just – so I’m not confused by it.

00:11:49

ANTONY SAMMEROFF: Well, I do actually hate it.  So Stephan, I did actually…

00:11:55

STEPHAN KINSELLA: Well, the problem is your name is Anthony, and people call you Tony or T-Boy or whatever, right?

00:11:59

TIM LAIRD: Ants.

00:12:01

ANTONY SAMMEROFF: Ants.

00:12:02

STEPHAN KINSELLA: I don’t like nicknames either.

00:12:03

ANTONY SAMMEROFF: Ants.  I don’t mind Ants.  Ants is kind of cool.  My brother calls me that sometimes.

00:12:09

STEPHAN KINSELLA: No one says Ant.

00:12:11

TOM LAIRD: Yeah, they do.

00:12:11

ANTONY SAMMEROFF: Ant is lame.  Ants is okay with an S on the end.

00:12:15

STEPHAN KINSELLA: All right.

00:12:16

ANTONY SAMMEROFF: Well, I think Stephan is referring to the fact that I did actually accuse Adam Mossoff, my interlocutor, of begging the question, which just means circular reasoning for people who think it means the same as invite the question, which I then did to you, Stephan.

00:12:37

00:12:39

TOM LAIRD: So where were we?

00:12:40

STEPHAN KINSELLA: Well, what I liked about your discussion with him was, number one, he’s a very, very, very – at least with you – a nice guy.  Okay, so – but honestly – so here’s what I think.  I mean I don’t want to be an asshole.  Well, I actually kind of do want to be an asshole.

00:13:01

TOM LAIRD: Well, we don’t care.

00:13:02

ANTONY SAMMEROFF: I’ve been doing this show with Tom for four years, and he’s never stopped being one, so you’ll fit right in.

00:13:09

STEPHAN KINSELLA: So you have this guy who’s like being the happy, giddy, warrior who pretends like he’s on our side.  And honestly that’s my misgiving about the whole thing.  He’s like, oh, ha, ha, ha, ha, ha, ha, ha.  So like – so when you say – like for example, someone in the questions or you or someone brought up if you believe in intellectual property, which is a broad term which includes not only patents but copyrights, patents and trademarks and everything, then that means that you have trademark rights and trade secret rights and everything.  It’s not just a narrow thing.  And he just giggles like oh ha, ha, ha.  If someone says, oh, that means that I can’t say that I’m for COVID A, B, and C, and someone might trademark COVID-19 or whatever and charge you $0.15 per usage.  And he goes ha, ha, ha, ha, ha.  It’s like, what the fuck are you joking about?  You believe this mother-fucking shit, okay?  Do you understand?

00:14:33

It’s like it’s not a joke.  You’re actually in favor of this, and you know what?  If you were a socialist or a Marxist or a commie, that’s one thing because I’m used to being disappointed in these people.  But if you’re a liberal, and you’re joking like you’re in favor of patent law, IP law, whatever, and by the way, they never defined it.  You notice this.

00:15:06

TOM LAIRD: Right.

00:15:06

STEPHAN KINSELLA: By the way, I have 35 questions in my notes thing we can talk about if you want to.  But the point is it’s like, come on, guy.  It’s not a joke.  So when someone says, oh, according to your theory of IP, I can’t say my name and he giggles, it’s like this is not a joke.  This is what you’re in favor of.  This is horrible.  This is fascist.  This is socialist.  I mean it’s not a joke.

00:15:47

ANTONY SAMMEROFF: Would another example be like if it weren’t for IP laws you could send millions of medications to Africa, cheap, generic medications to Africa and actually save lives, save maybe millions of lives.  But you’re not allowed to because of IP.

00:16:04

00:16:06

STEPHAN KINSELLA: What do you mean?  I’m actually not sure what you – what the question is.

00:16:10

ANTONY SAMMEROFF: Well, in one of the readings you sent me about intellectual property in pharmaceutical industry, it said that people – that lives were being lost in Africa because – lives were being lost in Africa because people couldn’t replicate expensive drugs and send cheap, generic drugs over.

00:16:33

STEPHAN KINSELLA: Well, why don’t we do this?  You were actually, I thought, amazing in your…

00:16:41

ANTONY SAMMEROFF: Oh wow.

00:16:41

STEPHAN KINSELLA: …discussion with him.  But the problem is in the debate format like this you can’t get the whole theory out there.  So he does a modified version of A, B, and C.  And you try to respond, and then it’s like this.  There’s no way you can get to the bottom of this without a long discussion, which most people don’t have the attention span for.  So I guess I could tell you one, two, three, four, five things I noticed in your discussion with Adam.

00:17:27

First of all, you have a way more calm explanation of things than I do.  I do go ba, ba, ba, ba, ba, ba, ba, ba.  And you’re like – with your accent and everything, you’re like – and he was all happy.  He was all happy-go-lucky.  But there was a certain giggling aspect to his responses to you that – which annoyed the fuck out of me to be honest because it’s like saying that there’s a holocaust, and people are in cages.  And well – so for example, when someone – like you brought up, for example, or someone did in the question and answer, well, what if someone wants to trademark COVID and you can’t say that for $0.15 royalties or whatever, something like that.  And he just started giggling, like yeah, it’s really funny.  It’s really funny.  It’s really funny, ha, ha, ha, ha.

00:18:38

It’s like, well, you know what?  It’s not fucking funny because this is serious.  This is what the law actually is.  And you’re not distinguishing between trademark and trade secret and patent and copyright law and all the different types of things that you call intellectual property.  And every time that you had the chance – so the thing I’m thinking is the debate is not amenable towards – so for example, I mean, Anthony, what do you think was – so he had 10 minutes to give his presentation, right?

00:19:19

And he did something – and basically what he said, and you can correct me if you think I’m wrong.  He said that property – IP rights, which are basically patent rights which he never clarified, they are like property rights.  That’s what he said, and then he mixed in together incentives and causation and correlation, and by the way, one of the things which he said which you challenged him on, which I admired you for, was that he said, well, you know what?  You have a point.  Now, he didn’t say it this way, but he said, Anthony, you have a point that we can’t prove causation and correlation.  However, even with regular property rights, we can’t prove that having property rights produces wealth.

00:20:21

So, number one, the whole point of his diatribe was something like I guess that law should mirror incentives to do – I mean it’s not clear.  He never makes it clear.  He mixes together all these things.  Now, as – here’s my guess.  As an objectivist, what he would say in response is that, oh, you’re right.  You’re right.  You’re right.  You’re right.  I’m mixing together all these things because we’re holistic and blah, blah, blah.  Like we’re blending incentives and property rights and the fruits of your labor bullshit, all this stuff.  He blends it all together.  He never makes a clear point.

00:21:08

His entire argument was you can treat IP rights as property rights, and therefore, they have incentive effects.  And therefore, there’s a causation/correlation thing.  But the only thing that he said that makes sense, which is the causation/correlation thing, which was that if you have more property rights than ideas that you have more wealth, he admitted that even with real property rights, you can never prove this.  So he admitted that.  He said, well, we can never prove that either.  So he’s basically saying that we have a higher level or an ontological basis for property rights.  Okay, fine.  That’s fine.  So is it incentives?  Is it – so what’s his theory?

00:22:03

So by the way you notice he never ever, ever, ever, ever defined intellectual property.  He never explained why – number one, why trade secrets aren’t included.  He never explained – there were so many things he said.  He’s a happy, giddy little Randian exponent.  I think everything he says is evil and wrong to be honest.  He never explains why property rights have to incentivize production.  He talks about creation of values.  That’s just Randian bullshit.  There are so many problems, and I think you found most of them.  I’ve got 75 notes I kept on this if you want to go through this, but I’ll stop here.  Go ahead.

00:23:01

ANTONY SAMMEROFF: Well, okay.  I just – one of the things that was frustrating is I think he usually ignored my arguments and just went back to stating his own position, which is, well, we seem to have done well under property rights.  And there’s some evidence to believe that intellectual property rights do incentivize innovation, and he just kept on going back to that and not really answering my arguments, which I actually called him out for once and said, well, you’ve not really answered my point.  But that was only one time.  I mean most of the times he didn’t.  But if you want to illustrate – if you want to talk about your notes, I think that would be a good way to give us some content.

00:23:51

TOM LAIRD: Could I just ask…

00:23:52

ANTONY SAMMEROFF: Please do.

00:23:53

TOM LAIRD: For maybe – for some people who don’t get the subtleties or don’t get the difference, could you maybe just outline quickly the difference between copyright, patent, trademark?

00:24:04

STEPHAN KINSELLA: So I would be happy to, but this – the problem is that – so you have Adam Mossoff who is some allegedly respected law professor.  And honestly, look.  The guy seems nice.  He’s happy.  He’s friendly to Anthony.  I mean so everything is fun.  But he’s not a patent lawyer.  He’s just repeating – honestly, so here’s the problem.  I think that most people are not that into theory.  I can see what he’s doing.  He’s taking Ayn – so he’s a Randian.  He’s an objectivist.

00:24:49

Let me be clear.  I think this guy is a minarchist, statist Randian, and he is just trying to bridge the gap between both sides.  And he is trying to – so he mixes in two, three, four, or five, six arguments: incentives, all this kind of crap, utilitarian.  He’s totally unclear.  He never defines intellectual property.  He never defines it, okay, number one.  He never says why the term should be arbitrary.  He never says what the term should be.

00:25:29

He doesn’t know what he’s talking about.  I’m a patent lawyer.  I’ve done this for 20, 30 years.  I know this is all bullshit.  It’s all just – it’s like a tax lawyer or a drug attorney defending a client against a stupid bullshit claim.  It’s all bullshit, okay?  You do what you gotta do, and you want experts who want to do what you want to – but he’s just trying to – he’s doing what he can to try to – he’s trying to – Ayn Rand, who is his mentor, because he had – he does – he really doesn’t have any deeper theories than that.

00:26:15

I mean Ayn Rand knew literally nothing about intellectual property.  She just was a Russian girl who became libertarian-oriented and came to America and loved the American constitution.  That’s it, and guess what it says?  You should have patents and copyrights.  So she came up with some stupid justification for it, and you have some law professor who has never practiced it like I have and who’s just coming up with a justification for it.

00:26:48

TOM LAIRD: Right.

00:26:48

STEPHAN KINSELLA: It makes no sense, and he’s – so here’s what annoyed me about the whole thing.  So you guys were joking about – okay, so intellectual property is a term that these guys came up with to unify the entire field of state intrusions onto private law—trademarks, patents, copyright, trade secrets.  I can tell you more than anyone listening would know.  Trust me, okay?

00:27:19

So you have Mossoff, who knows less than me I guarantee it, and I would do a debate with anyone to see this, saying – so someone says that, oh, well, what if someone trademarked the COVID term, and they said you couldn’t use COVID in your brand name.  What did he do?  Listen to the video.  Watch it.  He started giggling like it’s a joke.  Hey, guess what, Adam?  It’s not a fucking joke.  This is serious, okay?  So you’re in favor of reputation rights, which he explicitly said.

00:28:00

He’s in favor of trademark rights, defamation law, trade secret law, copyright law, patent law, which they – patent law, which they call IP law.  It’s not a joke.  Okay, so actually as a matter of fricking legal fact, someone cannot use certain words because they will be put in jail or penalized by the state.  This is not a joke.  This is not what my fellow liberals believe in.  Trust me, okay?  This is why it’s disgusting to me.  Don’t joke about it.  Don’t giggle about it.  Don’t be in favor of the state having defamation law, reputation rights, all these laws that will let the state put you in jail or take your property or penalize you because you made a comment—free speech.

00:29:03

So I don’t think it’s a – I don’t think it’s funny.  So that’s – I’ll stop ranting, but the reason I get passionate about this is because I really, really, really, really do not view these guys as our fellow allies.  They’re not liberals.  They’re not in favor of free markets.  They want the government – okay, so Adam Mossoff believes in the state.  He’s a minarchist or what we call a fucking statist or a mini-statist.  It’s not a joke.

00:29:34

These guys want the government to come in and manage and regulate the economy and tell you what you can do and what you can’t do to maximize incentives, seriously.  Everything about this was horrific, horrific, horrific except Anthony did a pretty good job defending against it.  But these guys are not our allies.  This is not liberalism.  This is not free markets.  This is not competition.  I mean what the hell?

00:30:06

TOM LAIRD: Stephan, when – okay, when I’m talking or when you’re talking or when anyone’s talking to an ordinary, average Joe, not your – somebody who’s not familiar with lawyers’ arguments, somebody who’s not familiar with all these terms that you’re talking about.  And it seems to them on the face of things that intellectual property rights are there to protect people’s work.  That’s what they think, and it’s to protect.

00:30:29

STEPHAN KINSELLA: Okay, fine.

00:30:31

TOM LAIRD: Okay, that’s what they think.  So what do you say to somebody like that briefly just to go, okay, here’s why it’s in your interest to get rid of intellectual property laws?  Here’s why it benefits you because that’s what everybody wants to know.  How does this benefit me?  It seems to me on the face of things that these things are beneficial because that’s what I’m told, but what good will it do me to get rid of these things?  What – how does it make my life better to get rid of intellectual property law?

00:31:02

STEPHAN KINSELLA: So I appreciate the framing.  I appreciate the question, but in the end, the question to me seems like the same kind of question where you say, okay, the world is falling apart.  Why shouldn’t I take the COVID reparations payments or whatever the hell they’re doing?  Okay, I can’t give you good reason.  I mean, okay, if the government gives me $19,000-a-year welfare payments, why shouldn’t I take it?  Okay, maybe you should.  But the question is a broader question.  It’s like what should the government do?  What’s the function of government?  What’s the function of politics?  What’s the function of law?  What’s the function of justice?  What should justice be?  What should property rights be?  All these questions.  So I guess I would say that it depends upon what your question is.  Like if someone asked me should I take this benefit?  Should I feed at the trough?  If there’s a trough, should I feed at the trough?

00:32:14

TOM LAIRD: Right.

00:32:14

STEPHAN KINSELLA: I don’t know.  To me, that’s an epicurean or a philosophical question.  But to me, the real question is should there be a trough?  And my answer is no.  There shouldn’t be a trough.

00:32:30

ANTONY SAMMEROFF: I guess people…

00:32:32

STEPHAN KINSELLA: And that’s what IP is.  There shouldn’t be a trough.

00:32:35

ANTONY SAMMEROFF: Right.  So I guess people can’t imagine living in a world where, say, all those shows on Amazon Prime or Netflix – anyone can just – it’s not illegal for anyone to just download them and watch them even though tons of people put all their work into making those shows.  And also think, well, why is anyone going to bother putting that much money into all those special effects and directors and producers and distribution and all that stuff if anyone can just download it and watch it?

00:33:12

STEPHAN KINSELLA: Give me 30 seconds, and then I’ll get back to you.  You guys can talk.  I’ll listen.

00:33:18

TOM LAIRD: Okay.

00:33:19

00:33:22

ANTONY SAMMEROFF: So…

00:33:22

TOM LAIRD: I think it’s worth clarifying, Antony, for maybe those who are mystified as to just exactly what we’re talking about, could you just frame it for us?  What was the debate?  Who were you debating?  Where was it?

00:33:37

ANTONY SAMMEROFF: Okay.  So I did put it in the podcast feed so anyone who’s not listened yet can go back and listen to it.  I was invited to attend a debate with Adam Mossoff who’s – well, he’s apparently an expert on this or someone in the liberty movement obviously.  Stephan disputes that he’s in the liberty movement who’s – one of the struggles that I think is…

00:34:05

TOM LAIRD: He looks at him like a fifth columnist.

00:34:07

ANTONY SAMMEROFF: For IP, and – which was quite funny because obviously it’s not actually an area of expertise for me.  I just prepared for the debate.  So that was – it was a good opportunity.  I think I gave him a run for his money though.

00:34:26

TOM LAIRD: Okay.

00:34:26

STEPHAN KINSELLA: I’m back.  Sorry about that.  Thanks guys.  I had to, you know, see a man about a horse.  Well, listen.  I don’t know who’s listening or who cares but…

00:34:38

00:34:42

TOM LAIRD: I mean the big stumbling point for a lot of people is when they talk about research and development.  They go like, who protects that research and development?  All the money I just…

00:34:51

STEPHAN KINSELLA: I know.  I know.  Okay, okay, so first of all – so the issue to me is a question is not an argument.  I mean, honestly, I know I say this over and over again and everyone…

00:35:08

TOM LAIRD: No, I get that.  But people will ask questions, and if you don’t kind of answer them satisfactorily it…

00:35:15

STEPHAN KINSELLA: Yes, but then you get back to activism.  So, okay, fine.  So you can answer questions, but the questions then have to be formatted into a way that is a real question like a single question that’s not loaded.  So to me I will answer any question that’s sincere, genuine, and not loaded and not compound.  This is a lawyer thing.  Compound means you can’t ask five questions in a row because it’s not serious like rat, rat, rat.  It’s rat-a-tat-a-tat.  It’s like what do you think about A, B, C, D?  It’s like, well, which one do you want me to answer, number one?  So it has to be a single question.

00:35:57

TOM LAIRD: And most of them are probably red herrings anyway.

00:35:59

STEPHAN KINSELLA: Well, that’s the problem is that you can’t ask a loaded question.  And so if someone asks me a question like, okay, Stephan, you just said that IP is A, B, and C.  How would I make money selling my poems?  Okay, now, that’s not a horrible question, but it’s not usually the real question because that wasn’t my argument.  My argument wasn’t – so it’s like – so what they’re saying in effect is that, hey, Kinsella.  I think that everything that I can imagine that should be promoted by society should be somehow viable economically.

00:36:56

And unless you can explain to me how this will work, I’m going to reject your proposal, so that’s what they’re really saying.  So it’s almost like the welfare state argument like, okay, so you libertarians are saying that you don’t support public education and the welfare system.  So you tell me how people that are poor are going to make it in society.  You tell me.  Now, when they say this you tell me, what they’re saying is they’re switching the burden of proof.  They’re saying that unless you can guarantee to me that A, B, and C will happen, I’m going to reject your proposal.  And so then libertarians bend over backwards and they say, oh, well, I think there will be charity, and there will be A, B, and C.  So they try too hard to please these assholes, right?

00:37:57

TOM LAIRD: Right.

00:37:58

STEPHAN KINSELLA: Right?  So they’re sort of giving into the – but here’s the thing.  What if we switched the burden of proof and we say you tell me – you tell me how social security in America or whatever you have in Europe – how will that guarantee everyone’s going to be taken care of in 45 years?  You tell me how that’s going to guarantee that.  And they’ll say, well, well, well – they won’t know.  They have no fucking idea, right?

00:38:29

TOM LAIRD: Right.

00:38:31

STEPHAN KINSELLA: So it’s like, well, that’s not – so that’s not the real question.  So do they want a guarantee?  And if they want a guarantee, guess what?  That’s not coming.

00:38:40

TOM LAIRD: Buy a toaster.

00:38:41

ANTONY SAMMEROFF: Right.

00:38:43

STEPHAN KINSELLA: There’s no guarantee coming.

00:38:45

ANTONY SAMMEROFF: I like it.

00:38:46

STEPHAN KINSELLA: Anyway, sorry.  I’m ranting, ranting, ranting, guys.

00:38:51

TOM LAIRD: If you want a guarantee, buy a toaster.

00:38:52

ANTONY SAMMEROFF: I see where you’re coming from.  I just think that most people have a sense that it’s unfair if I go take my guitar to an open mic and afterward some salubrious bastard is like, oh Ant, man, that was a really great tune.  Is that one of yours?  I’m like yeah, yeah, I’ve been working on it.  And he’s like, hmm, hmm.  And next week I see him on top of the pops…

00:39:15

STEPHAN KINSELLA: Well, you don’t want…

00:39:15

ANTONY SAMMEROFF: …having stolen my song.

00:39:18

STEPHAN KINSELLA: I think they do have that view, but they also have a view that capitalism is unfair and that – and you know what?  Maybe people need to just…

00:39:27

TOM LAIRD: No but – no but wait, wait, wait, Stephan.  Some of the most ardent proponents I know of intellectual property aren’t capitalists.  They’re leftists, and they hate all other kinds of – oh yeah, sure, actual physical property.  That’s theft, man.  But if you take my song or my painting or my dance-fucking routine and you copy it, then I’m going to sue your ass in about 10 different courts.  So these are people that you would normally associate with, oh, property is theft, but as soon as it comes down to intellectual property they’re full on.  No, no, no, that’s different.  That’s my stuff.  I’m an artist, and that’s my stuff.  You don’t get to get my stuff.  So it’s not just capitalists who are – who come out with this kind of stuff.

00:40:21

STEPHAN KINSELLA: Oh no.  I agree that the – that criticisms of IP are like – they’re all over the map.  So I actually almost don’t want to associate with the people that are against IP because half of them are against intellectual property because they’re against property.  So they make the same mistake that – I want to say the capitalists.  But – so they associate capitalism with property rights, and so because they’re in favor – because they’re opposed to copyrights in land and monopolies, they oppose patent rights and things like that too.

00:41:06

The other thing is most people don’t even under IP law.  It’s very, very – it’s like if you and I and Anthony and two or three other people had a long debate about anti-trust law or competition law as you call it in Europe, and no one’s a lawyer except maybe me.  But it’s like – but you could have an opinion.  You could have some economically informed opinions, but basically it’s going to be like a hop-scob just scramble of opinions.  People don’t know what they’re talking about.  They’re just talking about things they don’t know they’re – what they mean, right?  And I just…

00:41:50

TOM LAIRD: How do you define intellectual property?  Sorry Stephan.

00:41:55

STEPHAN KINSELLA: Well, and that – to me that’s a good question, and so here’s the thing.  So I have a bunch of notes which I could go through about Anthony’s debate with Adam, which I – so Anthony I think you did as good as you could.  The problem with these debates is so he had 10 minutes.  You had 10 minutes and then back and forth.  And in his – so I will notice this.  So you can’t do a good justification in 10 minutes either way.

00:42:28

But in your 10 minutes at least you tried to distinguish between scarce and non-scarce resources.  You made the point that you can’t copy A, B, and C, or it’s not a taking or whatever.  Mossoff never – as far as I can tell never ever even tried to make a coherent argument.  He basically kept saying that it’s property, which to me is a legal positive argument.  It’s the government treats it as property, and then once it’s property you can trade it.  And even you pointed out, Anthony, well, we’re living in the given system.  That’s why people do this.  That’s perfectly true.  I mean I don’t – you don’t want to bring up slavery or the Holocaust or whatever because then you’ll be dismissed.  But honestly there’s no limit to this kind of reasoning.  Human slaves were property, so the fact that…

00:43:32

ANTONY SAMMEROFF: I wish I had made that point.

00:43:34

STEPHAN KINSELLA: Well, but the format of this debate doesn’t lend itself towards that kind of systematic getting to the point.  But the problem for me was that Mossoff was a nice guy.  He seems like he’s a liberal.  He agreed with you on half of your points, which made sense, like about how the FD – I hate to use the US system because I hate being US-centric but like the FDA system or whatever the drug approval system is in other countries.

00:44:10

It biases things in a certain direction, and it imposes cost.  So if you’re – if that’s your concern, just reduce those costs or whatever or the minimum wage or A, B, and C.  And he would cheerfully admit to that, but when you guys brought up examples – so here’s the problem.  There’s no such thing as intellectual property.  I mean – and the whole question is on intellectual property, and the whole question is not property.  The whole question is not what is property.  Oh, and by the way, while I’m rat-a-tatting things off, I will say, Anthony, what I liked is how you are calmly like – calmly A, B, C.  I can’t do that.  I just can’t do that.  That’s just not my nature, but that was good, like A, B, C.

00:45:06

TOM LAIRD: I’ve yet to see this exchange.

00:45:08

STEPHAN KINSELLA: Well, if you see it, you’ll see what I mean.  He was like just calmly responding.  Now, the problem is the format doesn’t enable itself – doesn’t allow a comprehensive case to be made either way.  And the big problem is I think – and now I think that the objectivists and whatever would – they would think it’s the other way around.  They would think that the problem is that we’re giving credence to the unprincipled types like Anthony, like – you have no real, clear principle grounds, and so we’re gaining to consort with you.  I think it’s the other way around.  I think that the assumption that you have a guy that is in favor of so-called capitalism like Mossoff or Ayn Rand or those types.

00:46:13

And they just make assertions that, well, if you’re in favor of capitalism then you must be in favor of a way of exploiting the fruit of your labors.  They throw these terms around, by the way.  So this is another thing I noticed.  And as an engineer, as a rigorous thinker, these guys – number one, Mossoff doesn’t now much about patent law.  I have actually prosecuted 1000 patent applications for big companies.  I actually understand the patent system.  I’m not saying that’s a prerequisite because I think you can have a reasonable view without it.

00:46:58

But he’s – he drops these things.  For example, so as a law professor – so for example, my view as a lawyer, as a legal theorist, I have never been one of these types that thinks that if you have certain credentials you have certain pride of place and you can say certain things and you can’t if not.  Everything Anthony says he’s entitled to say.  But then you have Mossoff dropping a couple of legal doctrines which are, number one, US-specific, which annoys the hell out of me because America is not the goddamn world.

00:47:45

And number two, I don’t think he – it’s like – it’s irrelevant.  He doesn’t know what he’s talking about.  So for – I wrote – I mean I’ve got so many pages of notes I could go through if we had time.  But as an – as just an example, so he said something near the end like a-ha ha.  So, number one, he’s giggling the whole time, but he’s giggling about things he’s in favor of.  So when someone says, oh because of trademark law, which you support which is part of IP law, I couldn’t actually use this term of COVID, whatever, without paying a royalty, and he just giggles.  It’s like, this is not a joke.  You support this stuff.  This is actually real.

00:48:39

This is actually really a real restriction on human liberty and can affect human fortunes and the way human discourse goes, so stop giggling.  Okay, stop joking about it.  You’re in favor of this stuff.  Take ownership of it, and admit that you’re a fascist or whatever the fuck it is, but stop giggling about it.  It’s not a joke.  So Anthony, you were being good-spirited, but this is not a joke.  I mean you’re opposing this stuff to your credit.  This guy is in favor of it.  What the hell?  Don’t joke about it.  Don’t giggle about it.  So then he just had some – he dropped some comment like, oh well, actually no.

00:49:25

In the law, leases are actually real property.  They’re not contracts.  It’s like, first of all, this guy doesn’t know what the – he doesn’t know what he’s talking about.  He’s just some amateur guy at George Mason who’s – who got his way in, and that’s fine.  But I’m telling you I can give you links.  I can give you case citations.  I can give you legal theory, whatever.  Trust me.  There’s a whole debate in the literature, which he seems completely unaware of, about the difference between lease and contract.

00:50:09

In other words, if you have a mineral lease or if you have any other kind of lease, is it a contract, or is it a property right, an in rem right or an in personam right?  Okay, interesting question for the fucking legal positivist.  Hey, guess what?  I’m not.  I’m a libertarian.  I recognize the difference, but I’m not trying to – so, number two, I’ve actually practiced and I’ve actually written actual real contracts, and I’ve actually done real patents many times.

00:50:42

So this whole issue of in personam versus – sorry, leases versus real, okay, guess what?  Louisiana and other states in America, some of them treat it like a real property interest, which we call in rem.  Some call it in personam, which we call contract.  But the only way to really sort this out is to have a unified version of contract and property law and, and, and to be actually—guess what—a libertarian, like a Rothbardian.  Rothbard pioneered the whole theory of contract law, and I hadn’t sorted it out yet, but I think I’m closer than anyone I know personally, and that’s fine.  But you can’t just cite positive law legal doctrines like they do, which is what they do.  So this is their whole argument for IP.  Here’s their argument for IP.  It’s like real property, which you noticed many times, Anthony.  It’s like it.  It’s like it.  It’s similar.  There’s similarities.  So what?  So what?

00:51:57

ANTONY SAMMEROFF: Yeah, a few times in the debate, he shot himself in the foot by referring to non-intellectual property as real property, and I kind of wanted to suddenly remark, oh, so you admit that intellectual property isn’t real property, but I…

00:52:13

TOM LAIRD: I guess what he meant was physical property.

00:52:16

ANTONY SAMMEROFF: I know what he meant, but it was just quite a funny turn of phrase.

00:52:19

STEPHAN KINSELLA: No, but I think you’re – so I think the format didn’t lend itself towards you’re giving yourself a totally systematic view but…

00:52:27

ANTONY SAMMEROFF: So can I ask you a question on that…

00:52:29

STEPHAN KINSELLA: The one thing you focused on was – wait, let me say one thing.  The one thing you focused on, which I like, was that you kept saying over and over again listen.  If you take my property, I don’t have it anymore.  That’s the whole point of everything.  And so if you notice, by the way, one thing Mossoff said was he admitted – he sort of admitted you were correct when you said that you can’t prove causation and correlation.  You can’t prove that IP rights are the cause of prosperity in the west.  His response was not to argue against you.

00:53:14

His response was to say that, well, we can’t know this about property rights in general.  That’s what he said.  If you go back and listen, it was stunning to me.  So what he said was, well, we can’t know this either.  So what he’s admitting is that we don’t – our argument for these principles is not an incentive-based or a utilitarian one.  In other words, we’re not in favor of property rights because we know that they will lead to better consequences.  It’s for other reasons.  So that’s what he implicitly admitted.  In other words, we’re in favor of property rights for what you said, Anthony, like we have to solve conflicts among scarce resources.

00:54:01

And that doesn’t apply to ideas.  And by the way, notice that he did this kind of weird, crabby argument like, oh well, some of us sometimes say ideas, but that’s colloquial, but we don’t really mean ideas.  We mean implementation.  I mean I’m a patent lawyer, dude.  What he’s saying makes no sense, and he’s not a patent lawyer, by the way, so distinguishing between ideas and the implementation of ideas is just complete positivist.  What the hell does it have to do with Austrian economics, libertarian principles, property rights?  Nothing.  Sorry.  Rant over.

00:54:45

ANTONY SAMMEROFF: So you said that the debate platform did not provide an ideal platform to give a comprehensive response.  What should I have said that I didn’t if we were doing a show that was in a format that was – that lent itself to that?  What didn’t I include that I would have been able to include if it was possible?

00:55:15

STEPHAN KINSELLA: I mean I think that if you had known ahead of time what he was going to say you could have prepared a couple of zingers or whatever.  But honestly probably nothing.  I think you did as well as you could in the friendly – and I think – and I – by the way, I agree with Adam.  He seemed like a nice guy.  He seems sincere.  Honestly, I think he’s just a Randian.  He just is doing whatever the hell he can to rehabilitate her completely insane IP views.  That’s what he’s doing, but he doesn’t know what he’s doing.  I mean he’s just a law professor.  He’s smart.  He’s like blah, blah, blah.  But I don’t think you could have done anything differently to be honest.  I mean if I could fault you, I wouldn’t fault you.  I would just give you some constructive criticism.

00:56:13

ANTONY SAMMEROFF: That’s what I meant.

00:56:14

STEPHAN KINSELLA: But I really can’t because all I can say is, okay, if you have 10 minutes and you know what he’s going to say do the following.  But I think you hit the high points as best as you could.  And I’ll notice this too.  Adam Mossoff – I think you called him doctor at one point.  I don’t know if he’s a doctor, so I would be careful about giving people credits that they don’t deserve.  He’s just a lawyer, which is a JD, which is all bullshit.  And he’s – has no experience in actual patent laws as far as I can tell, whatever.  So I’m not that impressed by this dude, but he’s cheery and giggly.

00:57:02

Okay, so give him that.  He’s cheery and giggly, and he’s got probably five little things he could put on his resume that he’s like the ad hoc advisor to this following group that’s in favor of IP.  Okay, all that means is you’re a goddamn Randian, and you’re trying to do whatever you can to rehabilitate.  I mean so here’s what I would have done.  So there’s probably two or three or four things I would have done, probably most of them only if I’d seen what happened after the fact.  But, number one, I would have asked him.  Okay, what about Ayn Rand’s clear, clear, clear views on the fact that you only own a scarce resource in that when you rearrange things it does increase the value of the things you own?

00:57:56

But you don’t own the property value and the rearrangement rights.  I would have asked him that because Ayn Rand clearly was conflicted.  Listen, I’m not an Ayn Rand asshole.  I don’t blame Ayn Rand for not getting A, B, and C correct.  She got – or everything correct.  She got A, B, and C and D and E, F, G correct.  That’s pretty good.  But she got confused on IP.  Okay, not a big problem for me because I don’t learn IP from Ayn Rand.  It’s really not a big problem.  But Adam Mossoff apparently does.  Do you follow me?

00:58:33

TOM LAIRD: Yeah.

00:58:34

ANTONY SAMMEROFF: Right.

00:58:35

STEPHAN KINSELLA: This is not a big problem.  I mean Ayn Rand was totally confused.  When Ayn Rand wrote on IP in 1962 or 5 or whenever it was, she thought mistakenly – Ayn Rand believed that the American – okay, I hate to go to America.  But she was in America.  That’s what she was thinking.  She thought the American IP system, the patent system, was a first-to-file system, which meant that the first guy that files for a patent would win.  And everyone said why can that be just?  How can that be just?  Libertarians were like, how can you really be in favor of this?  It makes no sense.  This is not natural law.  And Ayn Rand said, well, and blah, blah, blah.  She came up with some stupid, totally horrible argument for it.  The point is she was wrong at the time, and until about 19 – I’m sorry, about 2008, until Obama with the America Invents Act, the US had a first-to-invent system.  We didn’t have a first to file.  So she didn’t even understand the law, so she was defending a law that didn’t exist.  Do you understand?

00:59:55

TOM LAIRD: Yeah.

00:59:56

STEPHAN KINSELLA: So she mistakenly believed that in America and in the west the first guy to file would get a patent, which is the case.

01:00:08

TOM LAIRD: I think that’s the case in the UK is first to file.

01:00:12

STEPHAN KINSELLA: Yeah, it is.  It’s the case in the US now, but it wasn’t the case in 1962 when she wrote.  It’s the case since 2008.  My point is she had no idea what she was talking about.  She just basically took for granted this is the American system.  I’m going to defend it no matter what.  I’m going to come up with a justification for it or rationale.  And her rationale was, well, it makes sense that the first – and so you’ll see that in Anthony’s discussion with Mossoff, Mossoff was saying, well, it’s just – he kept saying this over and over again.  It’s just like.  It’s just like.  It’s just like.  It’s just like.  It’s just like a property system, like oh, if so – and I thought Anthony’s response was really good.

01:00:59

So he said, well, if two guys are on the Mayflower coming to the US – well, to the western hemisphere, and one guy gets there first, he gets it all.  And Anthony’s like, no, it’s not a winner-take-all thing.  One guy can just go up the stream.  And by the way, if they were all going for one little tiny island, it might be similar, but that’s actually not what happened, so it was a bad example.  So Anthony was right.  So everything you said was correct, so you’re better than a law professor who has this prestige and doesn’t…

01:01:35

TOM LAIRD: Don’t tell him that please.

01:01:36

ANTONY SAMMEROFF: I’m going to get it printed on my business card.

01:01:40

STEPHAN KINSELLA: If I had to take a student on board, I would take Anthony over this law professor at GMU who has never filed a single patent, and I would – anyway.

01:01:54

ANTONY SAMMEROFF: That’s just nepotism, Stephen – Stephan for – crikey.  So I’m just going to put that on my business cards from now on.  Antony Sammeroff, better than a law professor.  So any highlights from your notes?

01:02:13

STEPHAN KINSELLA: Oh, let me see.  I’ve given you some already.  Let’s see here what I got here that I haven’t mentioned yet because you know how I am.  I go…

01:02:23

TOM LAIRD: What do we have in the background there?  Is that downtown Houston?

01:02:27

STEPHAN KINSELLA: Oh, that’s just – that is Houston, but it’s just like – okay, let me see here.  Okay, so – okay, let’s talk about this one thing.  So he talked about price controls.  Maybe we can go into that, and I can explain it to you guys and we can talk about it if you want.  So he talked about the export of American IP to other countries.

01:02:57

TOM LAIRD: Right.

01:02:58

STEPHAN KINSELLA: And by the way, I don’t think the US is the end-all, be-all.  I don’t think we’re the only one that makes IP and whatever or pharmaceuticals.  But okay, so his idea is that – so here’s his idea.  I’m simplifying it, and he would probably object, and he’s probably right, but I’m simplifying it.  So here’s his idea.  We have this spectrum of countries, and by the way, he admitted that we’re not perfect, and we have regulations and the FDA, and we have everything.  So I don’t even understand this kind of Randian worship of the west, but whatever.

01:03:38

So here’s what happens.  Guys, feel free to interrupt at any point.  So here’s what happens.  So western pharmaceutical companies try to come up with drugs that will solve problems.  I don’t disagree with that.  No one disagrees with that.  So these guys don’t get credit for this because, guess what?  Just because we’re not in favor of the patent system we’re also in favor of capitalism—whatever.  But – so here’s the idea.  They have to go through this gauntlet of the FDA system, which has unimaginable costs, which he admitted to and which you pointed out, Anthony.  And so then they can only sell these – so this is what he said.  If you listen to his – it was actually striking I thought if you listen to what he said.

01:04:38

He said that you can only sell to the west, to basically the US.  So what he said was if you sell to Canada or Europe or other countries, they will impose price controls.  And you can only sell it for an amount that you’re willing to sell it for, but you can’t – he said this many times.  You can’t recoup your costs.  Notice this.  You can’t recoup your costs.  Now, what the hell kind of libertarian, free market principle is this?  Are you entitled to recoup your goddamn costs?  What the fuck is he talking about?  So what he’s saying is that – so here’s what’s going on.  So you have an American pharmaceutical company.

01:05:31

They come up with a new pharmaceutical.  They get it approved after 17 years or 7 years or whatever the hell it is after $800 million of cost.  And they finally get it approved.  And in the meantime they’ve had to – and by the way, every discussion you guys had about trade secrets none of you guys – I mean I’m not being critical of you.  But you don’t understand how the industry works: NDAs, trade secrets, the relationship between trade secrets, trademarks, copyrights, patents, the whole thing.  This is the problem with the whole idea of IP is like using intellectual property as an umbrella term, which blurs everything.  Okay, but forget that for a second.  Okay, so you have these companies that come up with these new formulations, and they finally come out with something that’s approved by the government after a lot of cost.  And then they…

01:06:31

01:06:34

TOM LAIRD: They put it on the market.

01:06:35

STEPHAN KINSELLA: They get to sell them, but at that point they’ve already revealed their secrets because they have to as part of the FDA approval process.  So all their competitors are ready to compete with them at this last second, which, again, as a libertarian I’m not that against except I guess in a free market you can use trade secrets to stop that.  But they can’t because the whole system has distorted everything.  And even Mossoff even admitted that.  He even said that if we didn’t have the FDA maybe.  It’s like yeah, but then why aren’t you just focusing on that?  Why do you want to add on a layer of government – and his whole argument about monopolies was completely bullshit.  Anyway so…

01:07:23

TOM LAIRD: I’m guessing though that his point, even though clumsily made, was that America – or an American company comes up with a drug, a life-saving drug.  They market it.  It’s not that they have a God-given right to recoup their costs, but if they’re not confident that they can…

01:07:45

STEPHAN KINSELLA: No, I totally – oh sorry.  I totally disagree with you.  I think he does believe there’s a God-given right to recoup your costs, but go ahead.

01:07:54

TOM LAIRD: Right.  Okay but to put it another way then, if I can’t, if I can’t, if I don’t have confidence that I’m going to recoup my costs, then that makes me less likely to invest.

01:08:08

STEPHAN KINSELLA: Okay, so first of all, I totally agree with this, but on the other hand, when did it become a principle of liberty and capitalism and liberalism that the whole purpose of our system was to make sure people can “recoup their costs?”  What the – when did this come about?  It’s like…

01:08:28

TOM LAIRD: No, but it’s – as an individual when you’re – if you’re in business, then if – I think he’s talking from a Randian point of view.

01:08:36

STEPHAN KINSELLA: Yeah, yeah, yeah, but hold on.

01:08:37

TOM LAIRD: It’s self-interest.

01:08:40

STEPHAN KINSELLA: But the point of doing activity is not to recoup your costs.  It’s to make a profit.  So where did this become the standard in the first place?

01:08:48

ANTONY SAMMEROFF: Well, the base of our argument…

01:08:51

TOM LAIRD: Well, then it’s going to – if I can’t recoup my costs then the chances of making a profit may be somewhat…

01:08:56

STEPHAN KINSELLA: Yeah, yeah, yeah, I know.  I know.  But that’s like saying that if some company that’s a venture – okay, if they’re going to go bankrupt, so what?  What does that mean?

01:09:07

TOM LAIRD: I don’t care, but I care if it’s my company.

01:09:12

STEPHAN KINSELLA: Of course.  Of course you care, and of course, and if the government will give you a monopoly then you will take advantage of it.

01:09:19

TOM LAIRD: So I’m guessing his point is why would I invest huge amounts of money…

01:09:23

STEPHAN KINSELLA: But that’s not – hold on.  Hold on.  Hold on.  That’s not – you just said why would I?  That’s a question.  That’s a fine question.  But that’s not a point.  Let’s be clear.  Asking a question is not a point.

01:09:36

ANTONY SAMMEROFF: Well, I guess the point is we should have patents because if we don’t people will not spend 2.4 billion or whatever the (indiscernible_01:09:45).

01:09:46

STEPHAN KINSELLA: Exactly, but no one would ever say that because that’s ridiculous.  So what they would say instead was they would – so here’s what they would say instead.  So here’s what they would say.  They would say this.  They would say this.  They would say that in a – in some kind of equilibrium tenting market or whatever, there is an underproduction of innovation because of free rider problems and other problems.  And there’s a market failure, and the government needs to come in and tweak things and make them slightly better.  And it will cost something, but the cost will be way less than the advantage we get from imposing.

01:10:27

TOM LAIRD: Okay.

01:10:28

STEPHAN KINSELLA: So that’s what their argument is.  But they don’t want to make it this explicitly because if they do that then they have the fucking burden of proof, which they don’t want to prove, which you notice in our whole thing they said, well, the – I think Mossoff said to Anthony the burden of proof is on you.  He tried to switch it.  Did you notice that?

01:10:48

ANTONY SAMMEROFF: I did.

01:10:49

STEPHAN KINSELLA: This is the whole point of this entire way of framing things is to change the burden of proof.  And it’s changed the burden of what is the purpose of law and justice and social organization?  So that’s kind of my perspective on it.  I’m not trying to ramble, but that is my – that literally is my perspective on all this.

01:11:17

TOM LAIRD: Right.

01:11:17

STEPHAN KINSELLA: Does that make sense?

01:11:21

TOM LAIRD: It does in the way you’ve put it.

01:11:24

01:11:26

ANTONY SAMMEROFF: Any more major points before we wrap up?

01:11:29

TOM LAIRD: No.  I’m going to – well, I’m going to ask one thing.  I saw a – well, there’s two questions that arise out of a Q&A session that I saw you do before.  And if I can just find my note here, you recommended – and this is way back.  This is in 2010 or something like that.  You recommended a book called Against Intellectual Monopoly, and I think it was by Michele Boldrin and David K. Levine.  That’s a long time ago.  Is there anything since then that you would recommend?  Does anything surpass that in terms of its content, or can you even remember that far back?

01:12:18

STEPHAN KINSELLA: Oh, I remember.  It’s Michele Boldrin who’s a French guy, and David Levine.

01:12:26

TOM LAIRD: Yeah.

01:12:27

STEPHAN KINSELLA: I mean we’re friends.  I’m an admirer of their work.  I think they have surpassed it slightly with a recent paper.

01:12:38

TOM LAIRD: Right.

01:12:39

STEPHAN KINSELLA: About three, four, five years later about patent law where they – so my understanding is this.  So these guys are utilitarians, which I oppose their entire methodology to be honest.  I don’t think that’s how you solve these issues.  You can’t solve them this way.  But they did basically examine the entire case for IP on its own terms, and they were careful.  And I think they were actually moderate-leaning IP or something like that when they started, but then their investigation showed them that, Jesus, everything is like – everything is bad.  Everything turns out negative.  Now, they ended up in their first book – I mean from my point of view it’s fairly moderate.  From the average point of view it’s pretty radical.  They basically said we should get rid of most IP, and maybe we should replace it with a system of government-subsidized research grants.

01:13:52

TOM LAIRD: Right.

01:13:54

STEPHAN KINSELLA: And as a libertarian, as a holistic thinker, I’m like, oh, now you messed the whole thing up.  But at least they’re better than the other guys because they at least admitted A, B, and C are wrong.  And then their later paper about five years later, which I can give you the link to – I think it’s called The Case Against Patents.  It’s really clear.  It’s just on patents, not copyrights, but they kind of – so they even dropped that.  They’re basically like, uh yeah.  So even from a utilitarian point of view, I think that they’re like, dude, we have to give up patent.  The world would be a better place if we gave up patent and copyright.  Now, their argument is not the same as mine.  Mine is more Austrian, Rothbardian, libertarian, propertarian, whatever you want to call it.  Mine is more justice-based.  There’s no excuse for using force against someone for copying other people’s ideas, and in fact, I think…

01:15:02

TOM LAIRD: It’s a deontological argument then.

01:15:04

STEPHAN KINSELLA: I don’t know.  I mean other people can characterize it.

01:15:11

TOM LAIRD: Okay.

01:15:13

STEPHAN KINSELLA: But it’s not utilitarian.  I wouldn’t say it’s opposed to consequentialsts because I think consequentialism and principled or deontological arguments converge.  But that’s just my view.  That’s just my view.  Anyway, no, you’re right.  So that book – those guys are the best on that side.

01:15:36

So what amazes me is that they’re – so they are like 1000 people on their side, but none of them or very few of them come to their conclusions even though if you honestly just followed their own methodology and went down their path you would come to their conclusions.  But they just want to come up with a reason to – so here’s the basic idea.  I’m in favor of innovation.  I’m in favor of ideas because I’m not a dumbass sitting in a hut.  I like ideas.  Therefore, I favor property rights in ideas.  This is how they think.  Basically if you’re in favor of ideas, you have to be in favor of property rights in ideas.  And if you’re against property rights in ideas, which is IP law, they will attack you as being anti-intellectual.  It’s crazy.  I mean the whole thing is crazy, crazy, crazy, crazy, crazy.

01:16:45

01:16:47

ANTONY SAMMEROFF: All right.  With that crazy, crazy, crazy, crazy, I think we’ll wrap up for the day because we’ve gone over an hour.  Thank you so much, Stephan, for joining us.

01:17:01

STEPHAN KINSELLA: Thank you guys.  I appreciate it.  Sorry for – I wander.  When I talk, I walk.  So I – my wife wonders why I wander around the house, but I’ve been wandering around while I talk.

01:17:15

TOM LAIRD: That’s fair enough.

01:17:16

STEPHAN KINSELLA: But I appreciate it.

01:17:17

TOM LAIRD: Okay.

01:17:17

ANTONY SAMMEROFF: Well, I thank you very much for joining us on the show and hope to speak to you again.

01:17:23

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