IP Debate with Wenzel Looms

by Stephan Kinsella on February 26, 2013

As I noted in Kinsella vs. Wenzel on IP, Bob Wenzel and I agreed last month to have a joint podcast debate-discussion about IP. I thought we would have done it by now, but Wenzel said at the time that he needs until April, so the lastest plan is to do it April 1, for podcast release by April 7 or so. In the meantime, there’s been a bit of controversy/drama about this.

First, I appeared on a few shows and discussed the Ron Paul vs. RonPaul.com case where Paul is using ICANN’s UDRP process (via a UN agency, WIPO), to seek the ronpaul.com domain name, primarily on trademark grounds. The relevance? Trademark is illegitimate and unlibertarian; this case provides a nice illustration of why trademark law should go. And how ICANN is not totally private and was coerced by states into adopting a trademark-law enforcement mechanism, the UDRP.

In an interview I said it was my prediction that RP would probably lose. Wenzel noted this in Kinsella: Ron Paul Likely to Lose RonPaul.com Suit. He wrote: “So I guess the Ron Paul suit is going to also provide insight into how good an IP rulings handicapper Kinsella is.” It seemed to me he was implying that if I am wrong this weakens my credibility (as an IP lawyer?) and thus weakens the case against IP. I posted a reply but it was not yet approved, so on Facebook I wrote:

My reply .. not yet approved, and I failed to copy it. but my response was basically that this is weird that the focus is on my “guess” about the future. As if a false prediction of the future by stephan kinsella is the final proof that IP is legitimate. I mean what is the relevance?

What a clown. Another prediction: he will not debate me. He will find a way ot weasel out of it, like a worm.

People on his site are in a tizzy, calling my words “inappropriate” and bemoaning my failure to “apologize,” and darkly hinting this is contrary to my offer to have a sincere and civil debate with him: see his post Stephan Kinsella Taking the High Road. The offer is still on. My opinions expressed above are not contrary to that. I did at the time predict he would find a way to weasel out of the debate, because for years he has been making underhanded comments about me, Jeff Tucker, and other IP opponents and threatening to unbosom his pro-IP and libertarian theory to the world, yet has not done so; and he has delayed the debate already what seems to me to be an inordinate time. Maybe he wants time to prepare.

On the comments he wondered why I would challenge his promise to write books on libertarianism and IP. As he wrote:

And what is not credible about my announcing a plan to write a book on liberty and IP?

As I wrote back: what’s credible about it? I have no reason to believe Wenzel will come out with any systematic case for IP, much less a book on libertarianism. Who really believes Wenzel has a book coming out on IP? Of course he does not.

As for saying “what a clown”—as any functioning modern English speaker will know, this is an informal way of scoffing at the implicit argument he seemed to be making: that my predictions about the Ronpaul.com dispute have some kind of bearing on the IP debate we are allegedly going to have. Later, he approved my comment, which was:

But what is the possible relevance of whether my “guess” turns out to be wrong or right? Let’s say it’s wrong. Paul wins. what does this prove? That IP is legitimate? That Kinsella is an incompetent attorney? Which proves… what? That IP is justified? I can see it now on HuffPo: ‘Final Proof that IP is Legitimate: Libertarian Lawyer Was Unable to Predict The Future’.

He replied:

You are reading much too much into the post. I had no intention of linking your lawyerly skills and your skill on IP theory. I have no understanding of your skills as a lawyer. As you know, I have questions about your views on IP theory.

I merely presented the post as a tiny bit of human drama. Nothing more. You stepped up and gave your opinion on the likely outcome of Ron Paul’s suit, if it goes to court. I just found it interesting. No linkage to your IP theory, that is an incorrect jump on your part. Nothing in my post indicates I am attempting to do that.

I thanked him for this “clarification” (which he tries to make hay of in his own comments there). As for whether we agree on his “clarification”, that’s another issue.  I will give him the benefit of the doubt. Whether my “jump” was justified or not—reasonable people can disagree. All that matters in this context is whether IP  is justified, and whether Wenzel can somehow do what no one else has ever been able to do: present a convincing, libertarian justification for IP, or even provide a coherent description of what he thinks IP is, or should be.

Will the IP debate take place? Probably so, at this point, given Wenzel’s public comments on it. But who knows. If my predictions about whether the debate takes place, or whether Ron Paul will win his UN suit against his fans at ronpaul.com, are wrong, does this mean IP is justified? Nope. Stephan Kinsella’s predictive powers or even legal skills are not relevant to this normative question.

IP is utterly evil. Wenzel cannot justify what cannot be justified. Every time I hear of some free market type who is finally going to justify IP, it never materialize; we hear hypothetical utilitarian arguments from Richard Epstein, we hear promises to finally salvage Ayn Rand’s IP wreckage from Adam Mossoff, we hear J. Neil Schulman and L. Neil Smith go on about it, but it’s all vaporware. (See The Death Throes of Pro-IP LibertarianismThe Origins of Libertarian IP Abolitionism.)

The bottom line is Wenzel is wrong on IP, and even his legions of fans mostly realize this.  They are mostly Austrian-interested libertarians who know that IP is a huge statist mistake. Wenzel may be a nice guy and some type of Austro-libertarian (albeit utilitarian, apparently; and whether anarchist or not, I don’t know), but I have little doubt that he, like others, has no ability whatsoever to  justify IP law.  It will be interesting to see him try. I hope.

But I don’t blame him for being unable to justify IP. I tried, too, and failed. But in failing, I realized why I was wrong, and it deepened my understanding of property rights and justice. I was able to admit I had been wrong, even though I was at the time a practicing patent lawyer with a vested interest in viewing my profession as a legitimate one. Will Wenzel, when he finally realizes he has reached a dead end in the vain attempt to justify anti-competitive state-granted monopoly privilege? Time will tell, and I will not even dare to make a prediction on this one ….

The Daily Bell gets it basically right in their take on this in Two Mighty Libertarian Brains to Debate Copyright and IP?

For previous posts about all this, see:


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Crosbie Fitch February 26, 2013 at 2:48 pm

Stephan, you might obtain insight into Bob Wenzel’s reluctance to engage in debate with you, by examining your own reluctance to engage in debate with me.


Stephan Kinsella February 27, 2013 at 8:00 am

Crosbie, IIRC Wenzel had a silly post making hay out of the fact that Rothbard was not displayed prominently enough to Wenzel’s satisfaction on the LFB home page, and then Wenzel challenged Tucker to a debate, which Tucker declined. Then he made hay out of that. So I offered to debate/discuss IP with Wenzel. He took me up on it, but we aren’t doing it till April for some reason. I think he probably wanted time to bone up on this topic. It’s not mysterious. And I don’t blame him. For one thing, he knows most libertarians are turning against IP. He knows I have a well-developed, systematic and libertarian argument against IP. He knows, that is, that I am a formidable opponent with arguments popular among libertarians and even his own followers.

I don’t recall you challenging me to a debate. Nor do I have any reason to think you are worth debating. From what I can tell the only person in the world who understand or agrees with your idiosyncratic views is you. They are not even coherent, from what I can see. That said, if you can persuade me you have something interesting and coherent to say, I am not totally opposed to discussing this with you, perhaps even for my podcast, though I would scrap it if it turned out to be a boring mess.

Crosbie Fitch February 27, 2013 at 3:18 pm

Stephan, we’ve argued at length in the past, in various places. A ‘challenge to a debate’ is a publicity stunt, not a process by which one attempts to eliminate the impossible.

I’m just observing the irony in your complaints against Wenzel, given you exhibit similar evasiveness against others such as myself. This must be the first time you’ve responded to one of my comments in ages. It’s probably for the best anyway – I don’t have so much time these days. :-\

Consider me one of your fans – though, as I’ve said before, I think the ‘scarcity as a basis for property’ notion is complete bunk (a purely utilitarian conception).

Stephan Kinsella February 28, 2013 at 11:13 am

Crosbie, as usual, you are somewhat incomprehensible. I don’t know what you mean about the challenge–which challenge are you talking about? Relevance?

As for scarcity and property–iti s not “utilitarian” at all. You could argue it has consequentialist aspects but those two are different things. See Hoppe chapter 2 of TSC.

Jonas March 2, 2013 at 6:05 am

I’m a big fan of Wenzel and his blog, but every now and then he is wrong and his ego will not admit it. His usual response in these situations is to be evasive, sets up straw men, and carry out ad hominem attacks instead of using logic and being rational.

It does show a certain dishonesty of character that is unfortunate considering all the other good work he does for the austro-libertarian movement.

Stephan you will clean his clock in a fair fight, but make sure you do your own recording !!

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