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Conversation with a Student about Australian Copyright Reform, Piracy, and Innovation and Creation in a Copyright-Free World

As discussed on this Facebook thread.

Conversation with a student (this happens pretty frequently). (some formatting has been lost)


“Hi Mr Kinsella,

My name is []. I’m a student journalist from the University of [], Australia. I’m currently researching a story on file sharing, particularly focussing on a proposed anti-piracy code the Australian federal government has recently endorsed. I wanted to get the perspective of those opposed to copyright laws, and, as you are a prominent academic opponent of intellectual property, I was wondering if you would agree to provide some comments regarding the libertarian (and your) position on these issues? I just have a couple of questions about intellectual property and copyright in general that I could send through if you are willing.

As a budding libertarian myself, I’m in sympathy with libertarian critiques intellectual property, which is why I wanted to include your perspective in the piece if possible. I’d really appreciate your contribution.

Hope to hear back from you,


me: Sure, send them on.



Hi Mr Kinsella,

Thanks for getting back to me. Here are my questions:

  • In a nutshell, what is wrong about intellectual property?
  • How would you respond to the argument made by proponents of copyright that copyright is needed to protect the legitimate interests of artists and creators, and that without copyright fewer films, television, music, books, etc, would be made?
  • What are the negative economic implications of copyright, and are there any benefits of copyright at all?
  • Is “piracy” ultimately a good thing or a bad thing?
  • Anything else related you think ought to be mentioned?



“Hi Mr Kinsella,

Thanks for getting back to me. Here are my questions:

In a nutshell, what is wrong about intellectual property?”

The purpose of law and property rights is to provide a way for people to cooperate in the face of a world of scarce (rivalrous) means (resources). This means setting forth rules that specify who gets to use resources that might be subject to conflict—i.e. property rights. This is unavoidable in any society. The only question is what property allocation rules are to be adopted–which are justifiable. It turns out that the only candidate is some version of the Lockean-libertarian conception: the owner of a contested resource is to be determined by asking or determining who the first user was, or who he sold/gave the resource to. That is: property plus contract. This results in the common-sense and traditional set of rules we all know: homesteading and original appropriation, contract and consent, and so on.

To deviate from these rules you need a good reason. To take a resource from an original appropriator or someone who contractually inherited the property from a previous owner, you need a good reason. One reason would be: the owner harmed some victim, so now the victim has a claim on the resources of the tortfeasor for restitution/rectification. But unless you can show original appropriation, contractual transfer, or some claim for rectification, then there is no good reason to take a resource from a current owner and just transfer it to a new holder by legislative decree. And this is what IP does. It takes resources from owners and transfers control rights to outsiders. I explain in Intellectual Property Rights as Negative Servitudes

“How would you respond to the argument made by proponents of copyright that copyright is needed to protect the legitimate interests of artists and creators, and that without copyright fewer films, television, music, books, etc, would be made?”

I would respond in a few ways. First, by noting that this is not an argument–it is just an assertion that some policy is “needed”. Second, by observing that this is an empirical argument and that the burden of proof is on the person making it–and that empirical studies do not back up such assertions. In short, I would say: this is now how we make policy. We do not just announce some policy goal (“we need a certain amount of creativity/innovation”) and then just try to find some policy norms that will more or less help that goal to be achieved. This is not how justice or law works. This is the socialistic/empirist/legislative mindset at work, and on full display.

“What are the negative economic implications of copyright, and are there any benefits of copyright at all?”

I think patent law has more obvious economic harms–billions of dollars in lost economic output due to stifled innovation, etc. Copyright is even worse, in my view, but not because of lost innovation–though copyright does distort culture; but because copyright is being used by the state to control and restrict Internet freedom, and the Internet is one of the greatest tools to emerge to help fight centralist state aggression and corruption —

See these links of mine (available here: http://c4sif.org/…/selected-supplementary-material-for-aga…/):

  • Masnick on the Horrible PROTECT IP Act: The Coming IPolice State;
  • Copyright and the End of Internet Freedom;
  • Where does IP Rank Among the Worst State Laws?

“Is “piracy” ultimately a good thing or a bad thing?”

I think piracy is a word used to malign copying, emulation, competition, etc., and that there is nothing whatsoever wrong with these things. Piracy is a good thing, in short.

“Anything else related you think ought to be mentioned?”

I’m happy to elaborate or answer other questions.



Thanks for that. Those are some really valuable insights.

Just one follow up question: If you can, could you give an idea of how the “creative industries” might operate in a world without copyright and intellectual property? I.e. how would things like films and television, which require significant capital investment, be funded and ultimately constitute a profitable enterprise outside the current paradigm where copyright owners profit from selling copyrighted material/from royalties? Would the “creative industries”, as we know them today, even exist?

To me that seems to be the sticking point for many people — they might admit the principled objections to copyright and IP, but can’t get their head around how cultural content would be made without copyright. I’m not sure I fully grasp it myself.




It is a sticking point for a couple of reasons. People implicitly think of law as a way to arrange incentives to obvious problems. So people say that in a free market we’ll have an underproduction of creative goods–so IP law is a way to “adjust” incentives to fix this. There is no reason to think this is a problem, and there is no reason to think that IP law addresses this non-problem–but the real problem is that this is now how to think about the purpose of law. Law’s purpose is to do justice–to respect property rights so that conflict can be avoided and resources can be used peacefully, cooperatively, productively. That’s it. It’s not about incentivizing the right amount of innovation.

So I am hesitant to even answer such questions since they seem to presuppose the wrong normative assumptions. Answering them concedes too much. Further, we cannot know exactly how the market will or would address certain situations absent state intervention. I can’t predict what the market will do. If a commie under communism asks a free market advocate how many brands of toothpaste there would be if the state monopoly is eased, no one can answer this–does this mean that the state monopoly on making toothpaste should continue, just because liberals can’t predict exactly what a free market would result in? No.

That said–I and others have tried to explain and posit some answers to some of these questions–see some of the posts below. Others are sprinkled around at TechDirt. The problem is that if I answer one question–“how would novelists make money?”–then as soon as I answer it, the IP proponent just goes on to the next question in his unending bad of demands: “Okay, maybe novelists could make money taht way–but what about poets???” So the questions are never-ending. It’s like they want a state-granted assurance for any possible question they have. They seem to imagine that the state can provide some kind of panacea for their uncertainties and doubts. It’s all ridiculous.

Bottom line, to be honest: your failed business model is not my problem. 😉

Inline image 1 http://d3n8aou4d02b4n.cloudfront.net/…/copyleft-aeroflot-fa…

  • “Funding for Creation and Innovation in an IP-Free World,” Mises Economics Blog (Dec. 1, 2010)
  • “Innovations that Thrive without IP,” StephanKinsella.com (Aug. 9, 2010)
  • “Examples of Ways Content Creators Can Profit Without Intellectual Property,” StephanKinsella.com (July 28, 2010)
  • “The Creator-Endorsed Mark as an Alternative to Copyright,” Mises Economics Blog (July 15, 2010)
  • “Conversation with an author about copyright and publishing in a free society” (Jan. 23, 2012)

Update: re movies: see also Falkvinge, debunking this whole idea that movies are not possible absent copyright (http://falkvinge.net/…/debunking-the-argument-that-no-bloc…/ )

and, as Cory Doctorow says:

“… Now, take $300m CGI summer blockbuster films: if the producers of these things are to be believed, the ongoing capacity to produce glitzy, big budget productions demands that services like YouTube be shut off (see, for example, Viacom’s lawsuit against Google over YouTube).If this is true – I’m no movie exec, maybe it is – then we need to ask ourselves the “balance” question: YouTube’s users produce 29 hours of video every minute and the vast majority of it is not infringing TV and movie clips, it is independently produced material that accounts for more viewer-minutes than television. So, the big studios’ demand amounts to this: “You must shut down the system that delivers billions of hours of enjoyment to hundreds of millions of people so that we can go on delivering about 20 hours’ worth of big budget film every summer.”

“To me, this is a no brainer. I mean, I love sitting in an air-conditioned cave watching Bruce Willis beat up a fighter jet with his bare hands as much as the next guy, but if I have to choose between that and all of YouTube, well, sorry Bruce.”



“That makes sense. “How would cultural content be produced without IP” is the wrong question entirely to be asking.

Anyway, thank you for your responses. You’ve been a great help!”
“The question is fine–if it’s just a real question, and not a loaded one. But it’s always loaded. The presumption behind the question is that we have to have laws that ensure that X will happen–and then the burden is placed on the opponent of IP to show how–to guarantee–that X will happen without the law. It’s like welfare: if the libertarian opposes welfare, the socialist demands that he guarantee that the poor would be taken care of absent a welfare system, with the understood implication being that the poor really have a right to be taken care of, so that if the free market won’t do so, then welfare is justified.”
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