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Kinsella on Liberty Podcast, Episode 364.

This is my Soho Forum debate held Nov. 15, 2021, in Manhattan, against professor Richard Epstein, moderated by Gene Epstein. I defended the resolution “all patent and copyright law should be abolished” and Professor Epstein opposed it. Oxford debate rules applied which meant that whoever changed the most minds won. My side went from about 20 to 29 percentage points, gaining about 9; Richard went from about 44 to 55%, gaining about 11, so he won by 1.7 percentage points.

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Owning Thoughts and Labor

12/11/2006

The issue of whether non-scarce things like thoughts or labor are ownable has arisen in recent debates—see, e.g., Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean HomesteadingIntellectual Property and Think Tank Corruption; and New Working Paper: Machan on IP.

Johan Ridenfeldt called to my attention recently a 1988 panel discussion on ethics with Rothbard, Hoppe, David Gordon, and Yeager, which has this exchange:

Question: I have a question for Professor Hoppe. Does the idea of personal sovereignty extend to knowledge? Am I sovereign over my thoughts, ideas, and theories? …

Hoppe: … in order to have a thought you must have property rights over your body. That doesn’t imply that you own your thoughts. The thoughts can be used by anybody who is capable of understanding them.

This is compatible with (and, of course, pre-dates) my own views on property and scarcity. As usual, Hoppe got it right early on.

[continue reading…]

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Fascinating chapter, “The Law of the Sea of Ignorance: F. A. Hayek, Fritz Machlup, and other Neoliberals Confront the Intellectual Property Problem,” by Quinn Slobodian, in Nine Lives of Neoliberalism, eds. Dieter Plehwe, Quinn Slobodian, Philip Mirowski online at b-ok dot cc then /book/5459057/b5c51d .

Abstract: Aggressive IP rights are often assumed to be one feature of the global neoliberal regime snapping into place since the 1970s. Yet, as this chapter shows, neoliberals themselves have been far from unanimous on the question of when, how, and even if ideas can be treated as property. This chapter focuses on the heterodox Austrian approaches of Friedrich Hayek and his contemporary Fritz Machlup, coiner of both the terms “knowledge economy” and “production of knowledge” and an understudied member of the Mont Pelerin cohort.

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Concreteness and Virtuality: Our Freedoms in the Era of the Internet,” by Eduardo Luft & Rosana Pizzatto, in Internet, Direito e Filosofia: leituras interdisciplinares, Editora Fundação Fênix Porto Alegre, 2021. Abstract:

“Like any other human society, virtual communities face ethical-political issues. Discussions on the internauts’ human rights, especially those related to human freedom, and on the legitimacy of models of regulation are always present in the international Internet forums. The contemporary dispute over the true idea of freedom still places the heirs of Kant and Hegel in the arena. Following the dialectic route, we see as one of the main challenges of our time to unveil the concept of freedom that emerges from an evolutionary ontology. According to the dialectic actualization project shown here, the Internet is conceived as one more subsystem that emerges in nature under the constraints imposed by the evolutionary logical space. As a self-organized process that evolves over time, the Internet also has relational and processual traits, presenting equally a movement towards the coherence of the network itself. Online societies follow the same law of coherence that rules real societies and online freedom presents the same character of real freedom, the exploration of the open field of possible modes of coherence. Personal freedom on the Internet retains common traits with the personal freedom that every person has and should have in real society, but, as we shall show later, there are also subtle differences between the two, with a strong impact on the Theory of Law. Keywords: Law, freedom”

[continue reading…]

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Profiting Without IP

In the end:

But here are some collected resources about ways to make a profit without relying on patent and copyright, or related ideas.

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This article is confused. Anything enforced by contract is not IP since contract rights are in personam—between the parties only—whereas IP rights are in rem property rights good against the world. That is why they affect third parties and precisely why they are problematic. A contract cannot bind third parties so it can’t produce IP rights. Hammer is confused. Rothbard was wrong that contracts can bind third parties. I explain this in the “IP as Contract” section of Against Intellectual Property, in particular the subsections “The Limits of Contract” and “Contract vs. Reserved Rights.”

***

This article was published in the Winter 1995-96 issue of Formulations

by the Free Nation Foundation

Intellectual Property Rights Viewed As Contracts

by Richard O. Hammer

 (to table of contents of FNF archives)

While we libertarians wrestle with the rectitude of intellectual property rights, I suggest that we think of contracts, and the limits of the enforceability of contracts. Suppose Scribbler has written a book that you want to read. Scribbler offers you a contract. For $10 you may take the volume — but only if you promise not to copy it.1

While some libertarians argue persuasively against the legitimacy of intellectual property as granted by state power,2 I think that most of us would agree that the state should not intervene to void a contract between two freely consenting parties. You and Scribbler have a right to enter into a contract which gives Scribbler a right, of sorts, to intellectual property. [continue reading…]

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This piece Brian Doherty, Intellectual Property: Dying Among Libertarians?, was published in Reason in 2010. He doesn’t quite get it, but at least tries to fairly summarize my propertarian take. I had several replies, including this one:

[reposted to correct formatting error]

Brian, thanks for the plug.

This piece was not meant to set out the case for IP but to discuss how and why the tide has been turning against IP among libertarians. For more information see my Against Intellectual Property, “Intellectual Property and Libertarianism,” and “The Case Against IP: A Concise Guide,” available at
http://www.stephankinsella.com/publications/#IP

I don’t think my argument is utilitarian; in fact the argument against IP need do nothing more than show that IP is incompatible with basic libertarian principles.

The utilitarian case for IP is flawed on many counts: there is no good evidence that it does what its proponents say, namely create net wealth due to incentivizing more innovation and creativity (and the burden of proof is on them); there are methodological problems with such arguments anyway (utility cannot be measured or interpersonally added or subtracted); and it’s immoral to take money from a rich guy and give it to a poor guy just because the latter values it “more” (and it’s wrong for a desperate guy to rape a hooker, even if you argue he gets “more” out of it than she suffers). [continue reading…]

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In this recent podcast, KOL341 | ESEADE Lecture: Should We Release Patents on Vaccines? An Overview of Libertarian Property Rights and the Case Against IP, I start off with a concise overview of the libertarian understanding of property rights and why this rules out intellectual property rights. The podcast episode is accompanied by a transcript.

 

 

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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.