IP Debate with Wenzel Looms

See: KOL038 | Debate with Robert Wenzel on Intellectual Property

Updates/related:

• KOL016 | Ron Paul vs. RonPaul.com: Adam Vs. The Man Interview
• Ron Paul, UN Hater, Asks UN To Take RonPaul.com Forcefully From Ron Paul’s Biggest Supporters, Techdirt
• Brad R, DOES RON PAUL OWN HIS NAME?, C4SIF
• Wenzel, Kinsella: Ron Paul Likely to Lose RonPaul.com Suit
• The Honorable Ron Paul v. DN Capital Inc., Martha Roberts, WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION, Case No. D2013-0371
  • Outcome: May 11, 2013:
    • The Panel denied the Complaint — the domain stayed with the Respondent.
    • Main Reasons: The Panel did not need to decide on trademark rights (common law claim left open but not resolved). Respondent demonstrated legitimate rights and interests via fair use: It was a genuine political fan site for news, commentary, and discussion (protected speech), with ancillary merchandise.
    • Clear disclaimers avoided confusion, and it met nominative fair use criteria. They had promptly offered the domain to Paul at no cost.
    • Bad faith was not fully analyzed but deemed unlikely due to the free offer, political nature, and lack of commercial intent to mislead.
    • The Panel also found Reverse Domain Name Hijacking appropriate: Paul rejected a free offer of the domain and filed the complaint instead.
• KOL139 | Power and Market Report with Albert Lu: Law, Careers, Scholarship; Intellectual Property Law Policy, Law, and Career
• Libertarian Party Trademark Assertions and Enforcement

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. [WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION The Honorable Ron Paul v. DN Capital Inc., Martha Roberts Case No. D2013-0371; Ron Paul, UN Hater, Asks UN To Take RonPaul.com Forcefully From Ron Paul’s Biggest Supporters; KOL139 | Power and Market Report with Albert Lu: Law, Careers, Scholarship; Intellectual Property Law Policy, Law, and Career]

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 Libertarianism, The 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:

• Wenzel, The Economic Recovery: Washington’s Big Lie (Part 2)
• Wenzel, A “Bullshit” Response from Jeffrey Tucker
• Wenzel, Mises Institute: Do As They Say, Not As They Do?
• Kinsella, Wenzel on Copyright and Patent.
• Kinsella, “Oh yeah? How would like it if I copy and publish your book under my name?!”: On IP Hypocrisy and Calling the Smartasses’ Bluffs
• Wenzel, Examining Jeff Tucker Intellectual Property Theory
• Wenzel, Mises Institute: Do As They Say, Not As They Do?
• Wenzel, Jeff Tucker Declines to be Interviewed on the Robert Wenzel Show
• Wenzel, Naked Trademark Battle
• Wenzel, Examining Jeff Tucker Intellectual Property Theory
• Wenzel, Stephan Kinsella versus Barack Obama On Copyright Protection