Kinsella on Liberty Podcast, Episode 253.
I spoke today on “A Libertarian’s Case Against Intellectual Property,” at the Federalist Society, University of Berkeley-California. It was well-organized and there was a perceptive and interesting critical commentary by Professor Talha Syed.
This is the audio I recorded on my iPhone; higher quality audio and video to be posted later.
My speaking notes pasted below.
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A Libertarian’s Case Against Intellectual Property
Stephan Kinsella
Kinsella Law Practice, Libertarian Papers, C4SIF.org
UC-Berkeley Law School Federalist Society
Oct. 11, 2018
Intellectual Property:
Legal rights enforced by law having to do with products or creations of the mind, the intellect
patent, copyright, trademark, trade secret
semiconductor maskwork, boat hull designs, database rights, moral rights, right to one’s “likeness,” reputation rights (defamation, libel and slander, law)
punishment for depicting religious figures in drawings
“cultural appropriation”
Why IP?
Ayn Rand "Patents are the heart and core of property rights." … "Intellectual property is the most important field of law."
US Commerce Dept. Study 2012 purporting to show that “intellectual Property-Intensive Industries” Contribute $5 Trillion, 40 Million Jobs to US Economy”
2018 Nobel Laureate in Economics Paul Romer: economic growth — and the technological innovation it requires — aren't possible under perfect competition; they require some degree of monopoly power [patents]
Some studies: patent trolls alone cost $29 billion and total costs much higher globally ($1 Trillion/year, or more, given the “cumulative” effect of innovation)
US continually foisting higher patent and copyright protections on other countries via trade agreements and treaties, e.g. NAFTA, USMCA, TPP (“IP Imperialism”)
Copyright distorts culture and threatens Internet freedom (censorship, takedown notices)
It’s important to get this issue right
I’m an IP lawyer and also a libertarian since high school (1982)
My IP struggle: problems with Rand, researching the issue
Tom Palmer, Wendy McElroy, Hans-Hermann Hoppe, Mises
Finally realized IP is unjustified around the time I passed the patent bar (1994)
Given my knowledge of IP law I spoke and wrote more and more on this topic, even though I’m more interested in other areas of libertarian legal theory
But I’ve found that sorting out this issue is crucial and helps sort out many other legal and policy issues
property and rights theory, Contract, fraud, causation and the law, and the nature and source of wealth and human prosperity
Purpose of law and property
The question is not “is IP a good idea?” or “what kind of IP law should we have?”
Garden of eden
Scarcity, conflict
All rights are property rights
Law is a set of rules enforcing property rights
To permit conflict-free use of resources
Allocates ownership of a contested resource in the case of a dispute
Basic rules:
Self-ownership, for bodies
for previously unowned, scarce resources:
original appropriation (homesteading)
contractual transfer
Transfer for purposes of rectification (restitution)
These give rise to a body of rules for property law, torts, contract, fraud, and criminal law
History of IP
Sybarris cooking competition 500 BC
History: patents used to grant monopolies. Statute of Monopoly 1623.
Copyright resulted from state and church censorship of the press, culminating in the Statute of Anne 1709
then the US Constitution in 1789: ““To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Originally seen as exceptions to natural law and property rights, as privileges granted by the state to encourage innovation or artistic creation.
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