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Transcript: Debate with Robert Wenzel on Intellectual Property

Below is a transcript of my debate with Bob Wenzel on IP:

KOL038 | Debate with Robert Wenzel on Intellectual Property


Debate with Robert Wenzel on Intellectual Property

Stephan Kinsella and Robert Wenzel

April 1, 2013


ROBERT WENZEL: Everyone, this is Robert Wenzel.  Welcome to a special edition of the Robert Wenzel Show.  You didn’t hear the usual music introduction because what we’re doing is we’re putting the raw audiotape up of the debate I’m having here with Stephan Kinsella.  So this will be on my site, EconomicPolicyJournal.com, and it will also be at Stephan’s site as part of his podcast.  I’ll put a—actually, I don’t know how Stephan has—what his link is, so I’ll have him mention that when he gets on the show, which is right now, Stephan, so take it away.  You have eight minutes.


STEPHAN KINSELLA: Thanks, Bob.  I’ll try to use less than that.  Long time, no see, and I don’t really know if this is going to be a debate or a discussion or an interrogation because I don’t really know if you have a whole position on IP.  So I’ll wait for your statement to see.  I’ve been waiting for a few years to see what you could come up with.


Let me just lay out a few things that I think ought to be fairly uncontroversial, and I won’t ask you to positively agree to every one of them because that’s going to be tedious.  But what I would say is I would ask you to specifically tell me which ones you disagree with when it’s your turn or later in our discussion.  Otherwise, I’m going to have to assume that they’re pretty reasonable assumptions.


Number one, you and I are both Austrian Libertarians, and I’m an anarchist.  I’m assuming you’re something of the same.  And a discussion about legal policy and rights and property rights among fellow libertarians and Austrians is going to be different than one between, say, me and a mainstreamer.  I might have to—see, my whole position against intellectual property is based upon my understanding of Austrian and libertarian property rights.  But if I’m talking to a mainstreamer, utilitarian, a Coasian, a leftist, they don’t necessarily agree with property rights, at least the same way as I do.


So I can’t even say that the problem with IP is that it violates property rights because they don’t even necessarily agree with property rights, at least the way I understand it.  I’m going to assume you and I both agree and that it’s uncontroversial that there ought to be a free market and a system of private property rights in scarce resources.  I’m hoping that you and I can both agree on that, and I don’t care what your basis is or what others’ basis is.


I don’t care if it’s utilitarian, consequentialist, pragmatic, intuitionist, deontological, or whatever.   The basics of libertarian philosophy and the free market philosophy is that there ought to be private property rights in scarce resources.  So if we can agree on that, then all I need to show is that this idea of intellectual property rights sets up some kind of right that it’s incompatible with what you and I already agree with.


Okay.  I don’t need to have an entire theory of property rights.  All I need to do is point out that these other rights are incompatible with private property rights that you and I both already agree with.  So then what I would say is this.  I admit that among all the people arguing about this issue, especially in the classical liberal, liberal, and libertarian framework and Austrian, I do myself personally happen to know a lot about the law because I’m a practicing patent attorney for the last 20+ years.


But I don’t think we need to go into the details of it.  However, I do believe that someone like you, to establish the case for IP, which is your task here, I believe, you can’t just pick apart things in my argument.  You have to have a positive case of property.  You need to have a clear and coherent definition of what you mean by intellectual property and why you think it’s justified and why you think it is compatible with regular property rights.


It will not do to find little niggling things that are misstatements and people’s criticisms of IP.  Even if I’m wrong in all of my criticisms of IP, it doesn’t mean IP is justified.  So what we agree on as private property supporters is we agree on the need for private property rules in scarce resources.  That’s what we agree on.  What we don’t agree on is whether you can extend a similar type of right to intellectual things, particularly patent and copyright.


So what I would ask you to do is to do a couple of things.  Number one, confirm that I’m correct that we both agree on private property rights and scarce resources.  And then also I would like you to give me—tell me what your general theory of property is that would extend to IP, how it differs from regular IP, that is, patent and copyright, trademark, trade secret law, and current laws.  What types of IP would it protect that the current law doesn’t protect?  Would you protect reputations, which Rothbard disagreed with, by the way?  Would you protect databases?  Would you protect fashion rights, which are not really protected by IP right now?


Would you make it international, or would it be national?  So I want to know what exactly you favor.  And then if you’re not able to do that, at least give me one very simple, clear example, just one clear case, the cleanest, most direct case you can think of that shows an obvious case for intellectual property of some type in a free market that doesn’t depend upon the state.  Just give me one example and explain how it’s compatible with private property rights.


Now, my view is that the problem with intellectual property is that it is incompatible with private property rights.  It’s incompatible with capitalism.  So it will not do for the opponent to say, well, you’re a communist.  You’re a leftist.  You’re a Marxist.  You don’t believe in this.  You don’t believe in that.  It won’t do to mix together a utilitarian case or a consequentialist case with the principle of property rights case.  You need to be clear what you’re arguing for.


Now, my argument is very, very simple.  The—and I would like to know if you disagree with this.  I am sure, Bob, that you agree that people that have property rights in scarce resources have the right to make contracts with those resources.  And I’m sure you’re familiar with the restrictive covenant idea or what’s called an easement sometimes.


So let’s say you and I are neighbors, and let’s say you and I both have homes next to each other, and neither one of us wants the other one to use our property for industrial or pig farm uses or hideous colors on our houses because we don’t want to reduce the value of our property because of an unsightly or unenjoyable neighborhood.


So let’s say I grant you, Bob, the right to prevent me from painting my house purple, or I grant you the right to prevent me from using my property in a certain way like for a pig farm.  And you grant me a similar right.  So we have these reciprocal rights established by a restrictive covenant, and basically it means you’re a partial owner of my property, and I am a partial owner of your property.  I retain most of the rights of use of my property, but you have this veto right that I’ve granted you.


Now, this is perfectly legitimate in a free society because it’s a contractual arrangement between you and me.  The problem with IP is that IP grants this veto right to a third party.  It lets them tell me how I cannot use my own property even though I never contractually agreed to this limitation, and even though I’m not using my property in a tortious way an aggressive way like pointing a gun at someone or polluting onto their property or being a nuisance, etc.  I’m using my property in a way that is totally private and does not invade the borders of your property.


So I’ve not committed a tort, I’ve not committed a crime, and I’ve not agreed to a contract, and yet IP law grants this veto right, this negative servitude or negative easement, we might call it, to the third party by virtue of the state law right now.  And I suppose in your system, in a private system, third parties can just assert that they have this right to control how other people use their property.


Now, to my mind, that is socialist.  It is anti-competitive.  It’s anti-free market, and it would be completely laughed out of court, and no one could get away with such an insane scheme.  So I would like to see your response to that, and I would like to see from you a positive case for intellectual property that is compatible with private property rights, and I will stop here and let you go.



ROBERT WENZEL: Okay.  Thanks, Stephan.  The best way really to show my perspective on IP is to really discuss your book from beginning to end.  I think there are so many errors in there and that, as we discuss the errors, it will become clear as to how I view IP different from you and how I would envision a free market IP world.


But before we get to that, what I really want to talk about for a minute because I’ve been getting some flack in the comments on my blog post, is with regard to supposed names I’ve been calling you and the hard time I’ve been giving you.  But at the same time, I have not called you a clown.  I have not said you are going to weasel out of anything.  I never said you were going to weasel out of anything like worm.  You did all those things, Stephan, and I want to do is I want to set the record straight exactly how this debate started and where you came in with this stuff and ask you why you did it.


This is what happened.  On January 23, I wrote a column discussing some Jeff Tucker intellectual property theory.  And I wrote, I continue to receive emails asking me to discuss my view on intellectual property and how it differs from the views of Stephan Kinsella and Jeffrey Tucker.  As far as Kinsella is concerned, he has written a deeply thought-out and complete theory of IP that I will respond to in full book-length form.  Kinsella’s theory deserves serious treatment, and I will not attempt to address that discuss in a blog post.  So I don’t see anything there that would cause you to go on an attack at me.


Now, from there what happened is I actually sent—you emailed me back—or you emailed me and said I have a new podcast.  Do you want to do a joint discussion about IP?  I could put it on my feed, and you can on yours.  So again, very polite, no problem.  Then you sent—I agreed to that.  I said it was a great idea.  And then I sent—let’s see.  You sent a letter to me saying I think—in part that said I think we should both commit ahead of time to be respectful, sincere, civil, and give each other adequate time, no ad hominem, no personal stuff, just an Austrian libertarian-oriented focus on truth.


I will not try to baffle you with legalistic bullshit just because I know IP statutes.  So what happened is I actually sent that email to somebody else because there was some other information that I wanted to get out.  And the person I sent that email to me said, boy, does he have the wrong impression of you.  I don’t recall you ever being ad hominem, personal, or disrespectful to anyone.  Now, at that point, I sent an email back to this person defending you.  I said Kinsella is probably getting that from Tucker.  I actually have a good relationship with Kinsella.  We once sat down and we talked a lot about his background, childhood, and all.  I think he’s wrong about IP, but I think he is a very decent guy.


STEPHAN KINSELLA: I bought you a drink, and I guess that didn’t go very far.


ROBERT WENZEL: Right, exactly.  We talked about all kinds of things.  And so the next thing—after defending you, the next thing I read you’re calling me a clown.  You’re saying I’m going to weasel out of the debate, that I’m going to do it like a worm, and it goes on.  Why did you do that, Stephan?


STEPHAN KINSELLA: Well, we can talk about a few of these things if you like.  It’s going to eat into our time, and honestly I’m afraid…


ROBERT WENZEL: No.  I want to talk about it.  Let me tell you something—go ahead.


STEPHAN KINSELLA: I’ll talk about it.


ROBERT WENZEL: I still have time left, Stephan.


STEPHAN KINSELLA: You did three and a half minutes.


ROBERT WENZEL: Exactly.  If—you also—at some point you stated…


STEPHAN KINSELLA: Tell me when you’re ready to talk, and I’ll wait until you’re ready.


ROBERT WENZEL: Okay.  Yeah, okay.  At some other point, you stated that you did not think it was a mistake to make the debate.  So my thought there is that someone told you it was a mistake because why would you have said that?  You invited me and the whole thing.  Okay?  And then you start with these attacks.  And so basically what you have really done is really pissed me off.  So whoever told you that it was a mistake—I mean, once we go into the details, you’ll see that the work I’ve done on this, and it was probably a mistake, but your second mistake was to piss me off about it.  Stephan, I don’t know what you’re doing, but why did you call me all those names?  Go ahead.



STEPHAN KINSELLA: All right, so let me just say either we’re going to get to your positive presentation of intellectual property, and I don’t know if we will because, honestly, Bob, I searched for 25 years—well, for a long time before that for a way to justify IP.  Knowing Rothbardianism, knowing Ayn Rand, knowing Mises, and knowing IP very well as a practicing attorney, I searched hard for a theory—a way to justify IP for years, and I finally realized I was failing.  I mean, not because I’m stupid because it can’t be justified.  I was making a fundamental mistake.  I have—I really would be amazed if you’ve come up with an argument I have not heard of and already refuted.


I have exhaustively catalogued and refuted dozens of fallacious arguments, so I suspect you either have yet another one of those, or you just don’t have an argument, and you just want to nitpick on my stuff, which is fine.  But the point was to try to justify IP.  What I want to do is to get you to agree that the burden of proof is on you, my friend, because IP is a state-created, legislated system of patent and copyright.


I cannot believe that you actually defend patent and copyright, so you must have in mind something sort of similar that a private system can come up with, and that’s fine.  I want to hear about it.  But the burden of proof, my friend, is on you to justify it, not to find nitpicks with my theory.  Now, if we have to get to that after all this background stuff, that’s fine, but I will address your questions for sure.


Feel free to interrupt because I’m—we’re kind of going back and forth.  I’d prefer to keep it free form if that’s okay with you as long as neither one of us steals the microphone.  Bob, for several years, you have, out of the blue, launched criticisms starting with Jeff Tucker and then with me about our IP stuff, and you kept saying it’s communist.  It’s Marxist.  It’s all this crap, mixing together the incentive argument with the principled argument, promising you’re going to write a book on it someday.


Now, this has been several years you’ve been doing this, so obviously you have something in your craw, and you have this innate theory, which a lot of libertarians used to or did that IP is somehow legitimate, and people that are tacit are anti-property.  Now, just because the word property is used as the…


ROBERT WENZEL: Stephan, Stephan, your two minutes is up, and I just want to stop you here.


STEPHAN KINSELLA: Well, you want an answer to the question about [indiscernible_00:16:15].


ROBERT WENZEL: I want—the specific answer I want is regardless of what I said about your theories and whether it’s communistic or not.  By the way, in your introduction, you called something communistic, so why is it that you can call something communistic and I can’t?


STEPHAN KINSELLA: Well, I have a [indiscernible_00:16:33].


ROBERT WENZEL: Stephan, Stephan, you did that.


STEPHAN KINSELLA: You want an answer… [indiscernible_00:16:36].


ROBERT WENZEL: Stephan, you did that.


STEPHAN KINSELLA: I have a coherent definition of my term… [indiscernible_00:16:38]


ROBERT WENZEL: So do I, Stephan.  Why do you think I don’t?


STEPHAN KINSELLA: Well, because I haven’t heard…


ROBERT WENZEL: Why did you call me a worm?


STEPHAN KINSELLA: Because you have promised to write this book for years now.  I don’t think you’re going to write it.  I don’t think you have a coherent theory of IP.  If you have it, I’d be happy to hear it.


ROBERT WENZEL: Hold it.  Let me stop you there, Stephan.


STEPHAN KINSELLA: Do you want my answer or not, Bob?  Bob, let me give you my answer, and then you can respond.  My answer is I thought you would weasel out of the debate because you were afraid to debate me because you know you’re going to lose.  The entire tide is turning against IP.  You know this.  I know this.  Almost all Austrians, all principled libertarians are against IP.  And you see that this kind of weird idea you have is being completely defeated and abolished, and you’re getting worried.  You know you don’t have a positive theory.  If you did, you would have written something by now.  That’s what I thought.  That’s why I thought you’d weasel out of the debate, and you didn’t, and I’m proud of you for not doing it.


But it’s not hostile.  It’s not personal.  It was a prediction.  It’s got nothing to do with the legitimacy of IP.  Whether or not I’m wrong or not about you agreeing to have a debate about IP is not a justification for IP, which is what we have to keep our focus on.  Now, what other sort of side issues do you want to get out of the way?  Go ahead.


ROBERT WENZEL: Do you think I’m a worm?



STEPHAN KINSELLA: No.  I don’t think you’re a worm.


ROBERT WENZEL: Do you think I’m a weasel?


STEPHAN KINSELLA: I thought you might weasel out of the debate.  Yes, I did think you might do that because you… [indiscernible_00:18:00]


ROBERT WENZEL: On what basis?


STEPHAN KINSELLA: I just told you.  Because you had been saying you’re going to write a book for a long time, and then when we agreed to a debate, you put it off two, three months.  And I think you just got… [indiscernible_00:18:10]


ROBERT WENZEL: Maybe, Stephan, it’s because I take my time, and I am very careful before I come out with something, so I know exactly what I’m talking about.  Maybe that’s why I…


STEPHAN KINSELLA: I agree.  I accept your explanation.  I told you already.


ROBERT WENZEL: Okay.  Am I a clown?  Stephan, am I a clown?


STEPHAN KINSELLA: You make some clownish arguments, yes, and you treat some of your guests in a clownish way, yes.


ROBERT WENZEL: Give me an example.



STEPHAN KINSELLA: I can’t think of any offhand but… [indiscernible_00:18:43]


ROBERT WENZEL: All right, let’s start the debate.  Okay, Stephan?


STEPHAN KINSELLA: I’m happy to do it.



ROBERT WENZEL: On page 18 of your book, which, by the way, I think is terrible, misleading, poorly framed arguments, illogical at points.  It’s, quite frankly, bizarre it’s got any attention.  You write on page 18, On the other hand, there is a long tradition of opposition to patent and copyright.  Modern opponents include Rothbard, McElroy, Palmer, and it goes on.  Let me repeat.  On the other hand, there is a long tradition of opposition to patent and copyright.  Can you explain Murray Rothbard’s opposition to copyright to me?


STEPHAN KINSELLA: Yes.  He opposed state copyright and patent law.  In fact, there’s an article on LewRockwell.com…


ROBERT WENZEL: Hold it.  Stephan, Stephan, we started this by saying—you started the conversation, your opening by saying we are talking about free market in a way that we could not talk about with people that hold different views, that hold state views and so on and so forth.  Are you against IP, or are you against IP state law?


STEPHAN KINSELLA: Well, intellectual property—we need to define our terms.  Intellectual property is a fairly recent term that the government has come up with to group together several state laws, most of which…


ROBERT WENZEL: Stephan, don’t—Stephan, are you in favor of copyright on a free market?


STEPHAN KINSELLA: Am I in favor of property right on a free market?  Of course.  I just said that in my opening statement.


ROBERT WENZEL: So you’re not against intellectual property?


STEPHAN KINSELLA: Yes, I’m in favor of property rights in scarce resources, which is what the libertarian tradition is all about.


ROBERT WENZEL: Yeah, but then you’re going to say that you’re not in favor of property rights the way a person would normally think about it.  In other words, if I write a book and sell it to B with the determination that it shouldn’t be shown to anyone else but C gets hold of it, then you’re saying all copyright bets are off.  Am I correct?


STEPHAN KINSELLA: I don’t think that’s a—that’s not a precise statement for me to even respond to.  First of all, you’re not defining your terms.  Rothbard—I am quite certain Rothbard was completely opposed to the copyright act as enacted by the federal government and—hold on a second.




STEPHAN KINSELLA: Bob, you’re going to have to let me answer a question, okay?  This is not you interrogating me.  This is an equal thing.  Now, you can answer my questions.  I can answer yours.  Look.  Rothbard’s view of copyright was a little murky.  I agree.  People are back and forth on this.  Some people say he was totally opposed.  Some people say he was partly in favor.  He was against the copyright statute.  He was against the patent statute.  But he had this idea that you could use some kind of contractual mechanism, which he called copyright, but he used it—if you have read his Ethics of Liberty, he used it in the context of a mousetrap, which, Bob, is an invention, which is covered by patent law.


So he apparently thought you could somehow put a stamp on some object that you owned that would limit the ability of the buyer to use it in certain ways.  Okay.  And he’s correct about that.  You can do that.  But then to take that and say that that implies there should be intellectual property or copyright is just incorrect as a factual matter.  It doesn’t—all that is, is contract law between two parties.  So you have yet to define to me what you think intellectual property is or what you think is justified, so you’ve got to tell me what you’re defending here.


ROBERT WENZEL: What you write here in your book on—you’re not saying anything about the copyright act or government intervention.  You’re saying, On the other hand, there is a long tradition of opposition to patent and copyright.




ROBERT WENZEL: Modern opponents include Rothbard.  Do you want me to read what Rothbard said about copyright?  I’ve got it right in front of me.


STEPHAN KINSELLA: He wasn’t talking about the copyright statute, Bob.  I’m talking here about patent and copyright.


ROBERT WENZEL: Neither are you.  You aren’t talking about the copyright statutes.


STEPHAN KINSELLA: Bob, first of all, this is the introductory section of my essay, and what I was just saying to do is set the stage and explain there has been a lot of debate about this issue.  There have been some libertarians and other free-market advocates who have favored and endorsed modern patent and copyright law and some that have generally opposed it.


Now, even Mises and Hayek had statements, which indicate they—especially Hayek, skepticism about it.  They did not go into it into a lot of depth and neither did Rothbard.  And by the way, if you’ve read Rothbard’s “Knowledge: True and False” chapter in the Ethics of Liberty, you will say that he totally rejects the idea of trademark—I’m sorry—of defamation law and reputation rights, as in having a property right in something that you create because it has value.


He totally rejects it.  That logic would imply if he had thought about it further, he would have totally rejected.  Look.  He admitted patents skew research and development.  He admitted the copyright statute was a legislated thing.  All he said was you could have a contract, and people are bound by the contract.  That is all Rothbard said.  That is not copyright, Bob.  Everyone that knows what copyright is thinks that it’s not copyright.


ROBERT WENZEL: Okay.  Let me read you exactly what Rothbard said from Man, Economy, and State.  Copyright, in other words, have their basis in prosecution of implicit theft.  The copyright is, therefore, a logical device of property right on the free market.  Part of the patent protection now obtained by an inventor could be achieved on the free market by a type of copyright protection.


STEPHAN KINSELLA: Part of.  Notice he says part of.


ROBERT WENZEL: Yeah, because it’s his view of how patents should be designed.  So he has no problem with copyright or patent on the free market.


STEPHAN KINSELLA: That’s completely false.  Rothbard has a whole section debunking…


ROBERT WENZEL: But copyright is therefore a logical device of property right on the free market.  Stephan, it’s as clear as day.  The copyright is therefore a logical device of property on the free market.  How much clearer could you get?


STEPHAN KINSELLA: Bob, he’s giving the example of a mousetrap.  Do you understand that that’s an invention?


ROBERT WENZEL: The mousetrap—don’t you know the difference between copyright and patent?  The mousetrap is a patent.  It’s not a copyright.


STEPHAN KINSELLA: I know.  That’s why Rothbard was confused.  That’s why Rothbard was confused.


ROBERT WENZEL: No, he wasn’t confused.  He said in the current law, copyright is with regard to a person that has independent discovery, and patent law has—applies in the United States with regard to the first person that discovers it.


STEPHAN KINSELLA: No.  That’s wrong.  Copyright has nothing to do with independent discovery.  You’re wrong.


ROBERT WENZEL: What’s that?


STEPHAN KINSELLA: Copyright has nothing to do with independent discovery.  It has to do with original creation of an expression of some idea.  That’s it.


ROBERT WENZEL: Okay.  I’ll yield to you on the legal stuff.  I don’t know that.  The non-legal way to understand it, the layman’s way to understand that…


STEPHAN KINSELLA: Bob, that’s what I tried—I don’t want to baffle you with legal bullshit.  I’m trying to explain—look.  First of all…


ROBERT WENZEL: Stephan, you just said that Rothbard misunderstood copyright in applying it to a mousetrap, and the mousetrap has to do with patents.


STEPHAN KINSELLA: Right.  First of all…




STEPHAN KINSELLA: I want you to agree with me that it’s totally irrelevant to whether IP is justified what Rothbard thought about it.  I mean, Rothbard could have been right.  He could have been wrong.  Even if I misdescribed his views on copyright because of his ambiguous use of the word copyright, has nothing to do…


ROBERT WENZEL: How is he ambiguous?  What is ambiguous about the way he uses copyright?  How clearer could you be?  Copyright is therefore a logical device of property right on the free market.  Face it, Stephan.  You’re wrong.  It’s wrong in the book.  You’re just completely wrong about you said.  Rothbard is not against copyright in the way it stands now, and he’s not against patent.  He would tweak the way patent is done in a free market, but he is not against either.  It’s completely wrong for you to say, on the other hand, there is a long tradition of opposition to patent and copyright including Rothbard.


STEPHAN KINSELLA: First of all, you really don’t think there’s a long tradition of opposition to copyright and patent?


ROBERT WENZEL: Not by Rothbard.


STEPHAN KINSELLA: So what?  Let’s strike his name off the list.  So what?  What does that prove, Bob?


ROBERT WENZEL: So the point is you’re in error there.  I’m trying to show how…


STEPHAN KINSELLA: I don’t think it’s an error, but it’s a side point.  I was—listen, if you really want to…


ROBERT WENZEL: Look.  You’re sloppy as hell in the book.  It’s—Rothbard is a leading libertarian.  A lot of people are going to consider his view, and people who don’t have a long period of time to look up IP stuff and what Rothbard said on it, and they’re going to go to your damn booklet here.  And you state Rothbard—long tradition—there’s been a long tradition of opposition to copyright and patent, and it’s totally wrong.


STEPHAN KINSELLA: Later on in the essay, I have a several-page section called “Contractual Rothbardian Reserve Right” or something like that.


ROBERT WENZEL: I’m going to come back to that because you completely contradict what you write here.


STEPHAN KINSELLA: I go in detail where Rothbard is wrong and where he’s right.  I don’t pull punches.  Let me explain something.  So here’s what happened.


ROBERT WENZEL: You’re just wrong, Stephan.  Face it.


STEPHAN KINSELLA: How does this prove IP is legitimate?  What does it have to do with IP?


ROBERT WENZEL: It proves you’re sloppy.  You’re a sloppy writer and thinker.  That’s what it proves.  It’s starting something…


STEPHAN KINSELLA: So what’s your case for IP?


ROBERT WENZEL: What’s that?  You’ll see.  It will come along.


STEPHAN KINSELLA: When?  What is your definition of IP?


ROBERT WENZEL: Be patient.  We have one hour and 30 minutes, Stephan.  We’ll get there.  I’m going to build the base.  I am going to destroy you, Stephan.  You are so wrong in so many places.  It’s incredible.  But let’s move beyond the book, okay?


STEPHAN KINSELLA: No, no, no.  I want to ask you—you tell me, before we go on, I want to know what you think intellectual property is and why it’s justified.  Just give me one paragraph.  I just want to know…


ROBERT WENZEL: I’m not going to do that.  You wrote the book.  I didn’t.  You wanted this debate.


STEPHAN KINSELLA: This interview is not about my book.  It’s about whether IP is justified, Bob.


ROBERT WENZEL: Yeah, and I’m trying to go—I’ve been trying to take a step-by-step process to go through.  I don’t want to take the trouble…


STEPHAN KINSELLA: What is your definition of IP?


ROBERT WENZEL: Step by step, Stephan.  We’re going to get there.  Be patient, man.  We’ll get there.



ROBERT WENZEL: Do you have a problem with patience?  I would like to introduce Mises, Hoppe into the debate right now, okay?


STEPHAN KINSELLA: Well, I’m not going to continue further until you give me a definition of what you mean by IP.  You’re justifying IP.  You tell me what you mean by it.  What do you mean by intellectual property?


ROBERT WENZEL: I am building my base towards it by showing…


STEPHAN KINSELLA: We need to start out with definitions.  I’m asking you a question.  I want to know what you mean by intellectual property.  I can’t know what to disagree with you on, Bob, if you won’t even define your terms.  What is intellectual property?


ROBERT WENZEL: Well, you chose to debate this way.  You chose this way of debating, not me.  You agreed to it. I’m [indiscernible_00:29:53].


STEPHAN KINSELLA: I didn’t agree to let you state question after question in interrogate footnotes in a book.


ROBERT WENZEL: Look.  If you don’t want to answer the questions, I’ll just take my two minutes and go on with my next point.


STEPHAN KINSELLA: Well, I’ll tell you what.  I’m happy to answer questions unlike you, apparently.  You ask me a question.  I’ll answer it, but then I’m going to ask you one, and I would like you to answer my question.


ROBERT WENZEL: I’m telling you I’m getting there.


STEPHAN KINSELLA: No, no, no, I don’t want for 54 minutes into it.  I want to know would you agree on my next question to answer my question?  It’s simple.


ROBERT WENZEL: Stephan, I’m going to answer these questions in the way it makes sense.  I’m not going to let you pull stuff out of the air without the right proper basis.  The basis I’m going to show you is a sloppy thinker, a sloppy writer, and that you don’t know what the hell you’re talking about.  I have 16 points I have to go through to get to the point on my view of IP and where you were wrong on 16 points before that just like you’re wrong on this Rothbard thing.  Do you want to continue?


STEPHAN KINSELLA: Your justification for IP is that Kinsella makes mistakes in his books, so therefore—so if I had never been born, then there would be no IP justification.


ROBERT WENZEL: No, no, no, no, no.  My IP view has nothing to do with your views, thank God.


STEPHAN KINSELLA: What does it have to do with then?


ROBERT WENZEL: I want to destroy you because A) you really pissed off with the clown, worm, and weasel comments.  That was really stupid, Stephan.  And then secondly, you…


STEPHAN KINSELLA: I don’t think so.  I don’t think so.


ROBERT WENZEL: You have a following in the libertarian movement along with Jeff Tucker, and you’re both so off.  Your thinking is so bad.  It is so sloppy.  It needs to be destroyed, and that’s what I’m going to do to you, Stephan.


STEPHAN KINSELLA: All the Austrians and libertarians agree with us now.  It must drive you guys nuts.


ROBERT WENZEL: What’s that?  Well, Stephan, they won’t…


STEPHAN KINSELLA: It must drive you guys nuts when everyone agrees…


ROBERT WENZEL: When I get through with this, Stephan, they’re not going to be agreeing with very much.  Let’s go on.  I now want to bring your attention to a book by Hans Hoppe called Economic Science and the Austrian Method.  He quotes Mises.  Its statements and propositions—its statements and propositions are not derived from experience.  They are, like those of logic and mathematics, a priori.  Okay, he’s talking about the science of economics.  They are not subjective to verification and falsification on the ground of experience and facts.  They are both logically and temporally antecedent to any comprehension of historical facts.  They are a necessary requirement of any intellectual grasp of historical events.  Would you agree with that, Stephan?


STEPHAN KINSELLA: Oh, Jesus Christ.  Probably because I agree with almost everything Hoppe has written.  I mean, this is painful, you just reading stuff that’s tangentially related.  I mean, you can’t get to a defense of IP?


ROBERT WENZEL: Basically he’s saying you don’t take empirical evidence and prove a theory by that.  That’s what he’s saying.  Do you agree with that or not?


STEPHAN KINSELLA: No.  I think that’s a clumsy way of rephrasing what Hoppe said.


ROBERT WENZEL: Well, first of all, that was Mises, not Hoppe.  It was Hoppe quoting Mises, okay?


STEPHAN KINSELLA: He didn’t say you don’t take—he didn’t say what you just said.  That was Bob Wenzel’s paraphrase.  I don’t think that’s a precise way of


ROBERT WENZEL: Well, I’m trying to make it simple for you.


STEPHAN KINSELLA: You’re doing that.


ROBERT WENZEL: All right, well, let me try the Hoppe version then.  Hoppe says: Non-praxeological schools of thought mistakenly believe that relationships between certain events are well-established empirical laws when they are really necessary and logical praxeological ones.  And they thereby behave as if the statement “a ball cannot be red and non-red all over at the same time” requires testing in Europe, America, Africa, Asia, and Australia.  Moreover, the non-praxeologists also believe that relationships between certain events are well-established empirical laws (with predictive implications)—


ROBERT WENZEL: —when a priori reasoning can show them to be no more than information regarding contingent historical connections between events, which does not provide us with any knowledge whatsoever regarding the future course of events.


STEPHAN KINSELLA: Make it stop.  This is torture.  Of course.  I’m a praxeologist, dude, but listen.  You don’t have to be a praxeologist or even a Misesian or even an anarchist to oppose IP.  All you have to do is understand that there should be private property rights in scarce resources.


ROBERT WENZEL: Stephan, please.  I’m trying to establish something here.


STEPHAN KINSELLA: God knows what!


ROBERT WENZEL: You’ll find out soon enough.


STEPHAN KINSELLA: I really doubt it, Bob. You are all over the map, man.  You are not a clear thinker.


ROBERT WENZEL: Yeah, well, we’ll see about that.  On page 20 of your book, you say—you have three reasons to reject utilitarian arguments.  The one I found most interesting…


STEPHAN KINSELLA: Are you a utilitarian now, Bob?  What the hell are you?  Does anyone know?


ROBERT WENZEL: Where did I say that?


STEPHAN KINSELLA: Well, then why are you attacking my criticism of utilitarianism?


ROBERT WENZEL: Maybe I’m not.  I’m quoting you.  I didn’t say I was attacking you.  I’m quoting.


STEPHAN KINSELLA: You don’t say anything, Bob.  All you do is carp and pick.  You don’t have any positive theory at all.  I don’t believe you do.


ROBERT WENZEL: Well, like I said, be patient.  You’ll get there.  In addition to…


STEPHAN KINSELLA: you’re just quoting things in a podcast.  I mean, Jesus.


ROBERT WENZEL: Well, we’ll get to the meat of this in a minute.  Trust me.


STEPHAN KINSELLA: I don’t trust you. I think you’re full of shit.


ROBERT WENZEL: You don’t have to trust me, okay?


STEPHAN KINSELLA: I don’t trust you.


ROBERT WENZEL: I’ll just go ahead.  I mean, I’ll just read it, Stephan.  It’s here.  In your book…


STEPHAN KINSELLA: Okay.  Remember the clown thing earlier?  This is an example of the “clown” thing.  Go ahead.


ROBERT WENZEL: Okay, well, let’s see where it goes.


STEPHAN KINSELLA: Do you have your red nose on?


ROBERT WENZEL: Okay, let’s see where it goes, Stephan.  In addition to the ethical problems, utilitarianism is not coherent.  It necessarily involves making illegitimate, interpersonal, utility comparisons as when the cost of IP laws is subtracted from the benefits.  You go on to say utilitarian analysis is thoroughly confused and bankrupt.  Do you still agree with that?




ROBERT WENZEL: Okay. So I found interesting…


STEPHAN KINSELLA: Do I need to start my timer, dude?  Because you’re kind of monopolizing things. I’m going to give you two more minutes and I’m starting.  Go ahead.


ROBERT WENZEL: Okay.  So you have a post up called “Boldrin and Levine: The Case Against Patents.”  Now, David Gordon writes in a review that their ethical views seem to be, broadly speaking, utilitarian.  So in other words, you wouldn’t agree with their utilitarian views to begin with.  Is that correct?




ROBERT WENZEL: Okay.  But yet, anyways, you feature a part from their book, which is utilitarian, which you don’t agree with.


STEPHAN KINSELLA: I don’t know what you are because you won’t answer any goddamn questions.  I mean, I will tell you.  I’m not a goddamn utilitarian.  I have principles.  I’m for property rights.  I have a theory of property rights.  I can tell you what IP is, why I disagree with it.  You apparently can’t answer a single question.


ROBERT WENZEL: Well, but what you do here is you quote them, and then you go on to say…


STEPHAN KINSELLA: Are you even a libertarian?  Can you just tell me?  It’s a simple—are you a libertarian?




STEPHAN KINSELLA: Are you an anarchist?


ROBERT WENZEL: I consider myself a private property society person.


STEPHAN KINSELLA: So you don’t know.  Okay.


ROBERT WENZEL: It’s not that I don’t know.  Look, let’s get back on point.


STEPHAN KINSELLA: Are you an Austrian libertarian anarchist?  Yes or no?


ROBERT WENZEL: Depends upon how you define the terms.  But anyways, I want to go back to this “Boldrin and Levine: The Case Against Patents.”  Now, this is where you get vicious.  You say we can only conclude—now, this is after quoting utilitarians, which you say are bankrupt.


STEPHAN KINSELLA: I wrote this in 2000 before I’d even heard of Boldrin and Levine, as you might know.


ROBERT WENZEL: What’s that? What?


STEPHAN KINSELLA: This was back in 2000 or ’99 when I wrote this, before Boldrin and Levine even entered the scene. So I don’t really know.


ROBERT WENZEL: So are you no longer against utilitarianism?


STEPHAN KINSELLA: I just told you I’m not a utilitarian at all.  I’ve never been.


ROBERT WENZEL: No, you’re against it. Okay, so then what difference does it make when you wrote this stuff?  In 2012…


STEPHAN KINSELLA: I don’t know what difference it makes to whether IP is legitimate or not. That’s what I don’t know. I thought this debate was about—


ROBERT WENZEL: I’m establishing for the libertarian community that you are totally sloppy and off the wall on this stuff, okay?  Let me finish the quote.


STEPHAN KINSELLA: If Stephan Kinsella, a patent attorney in Houston, is sloppy, that must mean Bob Wenzel’s inchoate, undefined definition of IP is justified. I mean, what kind of way of arguing is that?


ROBERT WENZEL: I told you what I’m doing.  I’m trying to destroy you, man.  You write: We can only conclude at this point that people who favor patents on utilitarian grounds are either ignorant or dishonest.  Who favor patents.  So it’s okay if they’re against patents, but if they favor it, they are either ignorant or dishonest because of the paper that just came out.  Maybe, Stephan, maybe it’s because they didn’t read the paper yet, assuming the paper makes any sense.


STEPHAN KINSELLA: So then they’re ignorant.


ROBERT WENZEL: Ignorant in a sense.  The paper came out last week.  You don’t know what I’m going to say for the rest of this debate, so you’re ignorant to that.  But that’s not the implication you’re giving, okay?  Further…


STEPHAN KINSELLA: So you think utilitarians have a good reason for favoring IP, Bob?  You think there are good utilitarian reasons for favoring IP?


ROBERT WENZEL: No, no, but I don’t…


STEPHAN KINSELLA: You agree with me that utilitarians are wrong in their arguments for IP.


ROBERT WENZEL: No, but you’re saying they’re either ignorant or dishonest.  But let me ask you.  Here’s the point.




ROBERT WENZEL: Do you know what Boldrin and Levine’s argument is?


STEPHAN KINSELLA: What argument?


ROBERT WENZEL: In the paper you cite?




ROBERT WENZEL: You cite a paper.  You cite a paper.  Here are the few lines of the introduction to “The Case Against Patents,” a paper by Boldrin and Levine.  Do you know their argument?  Were you calling it dishonest if a utilitarian is still in favor of patents after…


STEPHAN KINSELLA: Are you telling me that in my Against IP, I call Boldrin and Levine dishonest?


ROBERT WENZEL: No, no.  You called the people who favor patents dishonest.


STEPHAN KINSELLA: Yeah.  I think they’re either dishonest or ignorant that are utilitarians…


ROBERT WENZEL: But why?  What in the paper?


STEPHAN KINSELLA: Bob, it’s been four minutes.


ROBERT WENZEL: What in the paper would make them dishonest?


STEPHAN KINSELLA: Bob, it’s four minutes.


ROBERT WENZEL: You’re quoting a paper here, STEFAWN.  What’s in the paper, Stephan?


STEPHAN KINSELLA: Bob, it’s four minutes.  It’s my turn to reply, okay?  I am…


ROBERT WENZEL: Please reply.  What’s in the paper?


STEPHAN KINSELLA: I’m not an empiricist.  I’m not a utilitarian.  However, people like you often mix together deontological and utilitarian or empirical arguments for IP, flip-flopping back and forth like little totally uncontrolled arguers all the time.  And so you guys put up this argument all the time that you need IP as an incentive to create, blah, blah, blah.  That’s why the Founders put it in the Constitution.  So you guys mount a positive case for IP based upon empirical or utilitarian concerns.  And my simple reply is, number one, as a propertarian, as a principled libertarian: I don’t care.  I’m in favor of property rights and justice, and that is my main argument against it, just like Ayn Rand and Rothbard would argue against laws, against anti-trust, things like this, even without an empirical backup.


But as a fallback, I’m saying even by your own terms, in other words, you do not have an empirical argument for your case, and in fact, Bob, in the 200-plus years since the country has been founded, and since the Founders had this hunch that you needed IP, copyright, and patent to incentivize innovation and creativity, there has never been a single, unambiguous comprehensive study that’s proved this.1


In fact, they all prove the opposite.  So what I’m saying is if you’re really a sincere utilitarian and you wanted to encourage creativity and stimulate innovation, if you were aware of the studies that have been done, you would have to say, well, God, I have to oppose patent and copyright because it looks like, from the evidence, that they deter innovation.  So my point is, if you really know these studies and you’re still in favor of IP, well, saying you’re in favor because of empirical reasons, which you don’t have, then you’re dishonest, and you have another agenda, which I think they do; or you’re ignorant, and you’re not aware of these studies.  And so it’s one of those two.  It’s a very logical argument to make.


And, in fact, there are no studies showing that IP promotes innovation.  It causes hundreds of billions of dollars of damage and wrecked lives and literal death, jail sentences, extradition, police state enforcement, SOPA, PIPA, the entire thing.2 These things are monstrous invasions of property rights.  Bob, they are just below war, taxation, the Federal Reserve, government schools.3


ROBERT WENZEL: Okay, your two minutes is up.  Let me ask you again.  What is in the paper you cite?  What is in the Boldrin and Levine paper, “The Case Against Patents”?


STEPHAN KINSELLA: Are you talking about the recent paper or the one I cited back in my original article?  Which one are you talking about?


ROBERT WENZEL: Tell me in either one.


STEPHAN KINSELLA: Well, their basic argument is that they have studied from an empirical, utilitarian point of view the way the IP system works, and they are taking on the primary claims of the people that promote it and that endorse IP, saying that it isn’t necessary ….  So their basic claim is that it’s not necessary to promote innovation and that it actually hinders it.  That’s their argument, and they give lots of examples and explanations.


ROBERT WENZEL: And what do they use?  What data do they use?


STEPHAN KINSELLA: I don’t know what you mean. They use lots of data.


ROBERT WENZEL: Yeah, but give me—data from where?


STEPHAN KINSELLA: Well, like chapter 9 of their Against Intellectual Monopoly goes in detail…


ROBERT WENZEL: Not Against Intellectual Monopoly.  You’re referencing “The Case Against Patents.”


STEPHAN KINSELLA: Yeah, but that’s a summary of their entire argument.  They elaborated on it in detail in their Against Intellectual Monopoly.  So, for example, chapter 9 talks about pharmaceuticals, and they just—they demolish all the myths about why patents are quote unquote “necessary” for the innovation of pharmaceutical drugs.  And they have relied on tons of regularly established data.  I don’t know what you want me to tell you.


ROBERT WENZEL: I’ll explain because the paper is—Stephan, you’re babbling on because you didn’t read the paper, okay?  You’re just attacking.


STEPHAN KINSELLA: What are you talking about?


ROBERT WENZEL: You don’t know what’s in it.  You can’t tell me one damn thing that’s in in the paper.


STEPHAN KINSELLA: You’re asking me to tell you what’s in a paper that I cited in an article 12, 13 years ago?


ROBERT WENZEL: This is September 12; 12, 13 years ago.  September 5, 2012.  What the hell are you talking about?


STEPHAN KINSELLA: Oh yeah.  No, this is—that’s why I was asking you.  Are you talking about my original paper or something I wrote about recently?


ROBERT WENZEL: I was giving you—either one.  So what’s in the paper?


STEPHAN KINSELLA: Their paper concludes that…


ROBERT WENZEL: Not what the paper concludes.  What’s in the paper, Stephan?  Did you read the paper?


STEPHAN KINSELLA: Of course I read the paper.  I read their whole book.


ROBERT WENZEL: What’s in it?


STEPHAN KINSELLA: What do you mean what’s in it?


ROBERT WENZEL: What’s in the paper?  Stephan, don’t be stupid.  What’s in the paper?  What is their argument?  What is their argument?


STEPHAN KINSELLA: Bob, what are you asking?  Why don’t you tell me what you’re asking?


ROBERT WENZEL: I’m asking you what is in the paper that you can go and you can say that those in favor of patents on utilitarian grounds are either ignorant or dishonest.  What is in the paper?  What is in the paper, Stephan?


STEPHAN KINSELLA: What does their paper have to do with my claim about the general error that utilitarians make that are pro-IP?


ROBERT WENZEL: Stephan, I’m trying to destroy you.  You pissed me off.  You’re sloppy.


STEPHAN KINSELLA: I don’t care.  You’re not making sense.


ROBERT WENZEL: You don’t do your homework, and I’m showing.  This is only step two.  I’ve got 14 more of these, Stephan.


STEPHAN KINSELLA: We’re not going to get through them.  You’re just trying to—Bob, you’re just trying to evade, I think, making a positive argument for IP.


ROBERT WENZEL: Let me tell you what’s in the paper, Stephan.  Let me tell you what’s in the paper.  This is what they wrote because I read the paper.  According to the Bureau of Labor—according to the Bureau of Labor, they have exhibited any particular uptrends.  According to the Bureau of Labor of Statistics, annual growth in total factor productivity in the decade 1970 to ’79—actually, then they quote 1990 to ’99, 2000 to 2009.


WENZEL: They say growth was only about 1.2%.  Meanwhile, US research and development expenditures increased to 2.5%.  So isn’t that, first of all, an empirical view that you would object to and not necessarily a—even a utilitarian would agree with?  A utilitarian can be against the empirical like you are but still be utilitarian.  So this argument would make no sense to them as it should not to you if you agree with Mises and Hoppe that I quoted.  Am I correct?


STEPHAN KINSELLA: Yeah.  I’m not a utilitarian but…


ROBERT WENZEL: Okay, so why would you say…


STEPHAN KINSELLA: No, no, no, no, no, no.


ROBERT WENZEL: Why would you say…


STEPHAN KINSELLA: Bob, I’m going to answer now.


ROBERT WENZEL: … a utilitarian is dishonest because of this paper?  But let me move on.


STEPHAN KINSELLA: No, no, no.  First of all, I’m going to answer now.  First of all, I didn’t say utilitarians are dishonest because of that paper.  What I said was…


ROBERT WENZEL: You certainly did.


STEPHAN KINSELLA: Bob, I said that people…


ROBERT WENZEL: We can only conclude at this point after you quote from Boldrin and Levine that people who favor patents on utilitarian grounds are either ignorant or dishonest.  And this is a paper you quote from, but you can’t tell me anything about.  Stephan, come on.


STEPHAN KINSELLA: If people that are listening will just go to C4SIF.org and just go to my resources page and the other links on there, I’ve got a blog post called “The Overwhelming Empirical Case Against Intellectual Property.”  And what I did there was I tried to collect as best I could—it’s not comprehensive, I totally admit that it’s not comprehensive, because there’s too many papers to comprehensively read, summarize, link to, and they’re not all linkable anyway.


But I collected dozens of studies, and they are all pushing in the same direction.  You have empiricist-minded people.  And what they do is when they look at this issue, they all conclude—they conclude it looks like this system is distorting things badly.  It looks like this system is causing lots of problems.  It looks like this system doesn’t do what is claimed.  It looks like we can’t conclude, because the data is ambiguous.  So basically there is not a single study that I can find anywhere.  Now, if you can find one, show me, Bob.  But I’m just telling you—


ROBERT WENZEL: Stephan, are you in favor of empirical research or not?  What are you—why are you quoting empirical people, Stephan?  Why are you quoting this stuff when you said you agree with Mises and Hoppe?  It doesn’t make any sense.  You go to see if a red ball is a red ball in Africa and Canada.  I mean, Stephan.  Well, let me ask you this.  Would you quote this…


STEPHAN KINSELLA: Bob, I’m going to hang up if you don’t shut the hell up.  It’s my turn. Now, you’re going to play by the rules or I’m hanging up.


ROBERT WENZEL: Go ahead, Stephan.


STEPHAN KINSELLA: That’s probably what you want so you can have some stupid blog post title. Now, listen to me. First of all, I don’t know if you’re literally retarded or what, but your argument here is one of the worst arguments I have ever heard in my life. It is literally…




STEPHAN KINSELLA: It is stupid, Bob.


ROBERT WENZEL: Well, tell me how.  Tell me how, Stephan.


STEPHAN KINSELLA: Because like you, I think—although I don’t know what your real motives are anymore—like you, I am a defender of justice and private property rights, human prosperity, freedom, the free market, this kind of stuff as a general matter.  Okay?  And when someone comes along and says, we need to have this government intervention—which I think destroys lives and destroys individual rights and harms property rights and harms the free market—


And then they justify it by saying, well, we need to raise the minimum wage, or we need to increase the money supply, or we need to do X, Y, and Z, because it will have beneficial effects.  If you increase the minimum wage, we’ll all be better off.  If you have a tariff, we’ll all be better off.  There is nothing wrong with saying, well, what’s your data for that?  And then when they give you data, there’s nothing wrong with saying, but the data shows the opposite.


So even by your standards, even by the proponent of protectionism, even by their standards, their argument doesn’t make sense.  So there is nothing wrong.  It’s a completely legitimate argumentive technique, to take someone’s arguments on their own merit and show that they’re flawed.  Okay, so I have no idea what you’re talking about.  You’re acting like I’m contradicting myself because I say I’m not an empiricist, and yet I’m pointing out the flaws in the arguments of empiricists.  Actually, that buttresses my arguments.  Of course their arguments are going to be flawed because the practical is the moral.


And justice dovetails with consequences and pragmatic things.  There’s no reason to expect that the data is going to show that we’re all going to be better off when the government institutes a protectionist, anti-competitive system of patent and copyright law, a system that allows people to censor people’s free speech, to bully small people, to distort the entire cultural landscape, and to allow large companies to form oligopolies like Apple, Samsung, Google, Motorola to lock out small [smartphone] competitors because they have these explicitly anti-competitive grants of monopoly privilege, which you apparently are in favor, although you won’t admit it because you know it’s going to make you uncomfortable to admit it.  So now you tell me what’s wrong with showing that a goddamned empiricist is wrong in the stupid data they come up with to promote their protectionist argument.  You tell me what’s wrong with that, Bob.


ROBERT WENZEL: Well, Stephan, that’s not what you’re doing.  You’re using Boldrin and Levine…


STEPHAN KINSELLA: Oh, you’re full of shit.  You are so full of shit.


ROBERT WENZEL: Stephan, September 5, 2012, I suggest anybody that wants to go to the post.  It’s called “Boldrin and Levine…


STEPHAN KINSELLA: Why don’t you defend IP?  This is pathetic.  You have no argument for IP.  You are defending one of the six most evil things the goddamned federal government does.  You have no [indiscernible_00:51:15] whatsoever.


ROBERT WENZEL: [indiscernible_00:51:16]


STEPHAN KINSELLA: Either come up with an argument, or you should beg forgiveness from all libertarians for supporting this evil, evil protectionist federal scheme.  You can’t argue it, Bob.  Show me why ideas are property.  Are you familiar with praxeology?  How about Mises?  You know, Mises says that action is the employment of scarce means guided by knowledge.4  Now, libertarians believe that there should be property rights in things, not in the knowledge.  Knowledge is an inexhaustive free good that, once you are aware of knowledge, you’re free to use it to guide your actions whatsoever.  Your attempts to protect IP is an attempt to apply property rights to knowledge, which is not a scarce means.  Now, you tell me where that…


ROBERT WENZEL: Let’s go on.  Let’s go on.  On page 32, you write: “Similarly, if you copy a book I have a written, I still have the original book.  And I also still have the pattern of words that constitute the book.  Thus, authored works are not scarce in the same sense that a piece of land or car are scarce.”  Okay, but how do you mean that?  You’re basically…


STEPHAN KINSELLA: I’m using that the way every economist on the face of the Earth means it.  This is not controversial.


ROBERT WENZEL: Okay, go ahead.


STEPHAN KINSELLA: Have you ever heard the word rivalrous, rivalry?  You know what rivalrousness means?


ROBERT WENZEL: Go ahead.  Yes, I do.


STEPHAN KINSELLA: Do you think any economist on the Earth would disagree that a pattern of words in a book is [not] a rivalrous, scarce good really?  Anyone?  Seriously?


ROBERT WENZEL: That it’s not—let me tell you this.  Let me tell you this.  I have written now a formula that I think works—


WENZEL: —to allow me to get on Drudge, linked on Drudge, which drives tremendous traffic to me from time to time.


STEPHAN KINSELLA: What do you mean?  Where have you written it?  What do you mean you’ve written it?  What does that mean?


ROBERT WENZEL: I’ve written it on a piece of paper.


STEPHAN KINSELLA: Why?  Why did you do that?


ROBERT WENZEL: Why did I do that?




ROBERT WENZEL: Because I wanted to remember it in detail.


STEPHAN KINSELLA: Okay.  What’s the relevance of the fact that you “wrote it”?


ROBERT WENZEL: Well, the relevance is…


STEPHAN KINSELLA: What’s the relevance of what you did with your property in your house.  You have a piece of paper on your desk somewhere with lead or ink scratchings on it, which you can read, which means something to you.  Congratulations, a miracle.


ROBERT WENZEL: Okay.  Then I sell this to person B under the condition that he does not sell it to anyone else.  Is it –first of all, when I have it, is it a scarce good?


STEPHAN KINSELLA: When you have what?  The piece of paper?


ROBERT WENZEL: When I just have it written down and no one else is aware of it, is it a scarce good?


STEPHAN KINSELLA: Is what a scarce good?  You’ve got to be specific.


ROBERT WENZEL: What I’ve written down.


STEPHAN KINSELLA: The paper?  What do you mean?  You mean the patterns …?  Are you talking about knowledge?  Information?  Knowledge?


ROBERT WENZEL: If I’m the only one that has it, does anyone else have it?


STEPHAN KINSELLA: What, Bob?  Tell me what the hell it is.  Do you mean the piece of paper?


ROBERT WENZEL: The formula to get on Drudge, to a link on Drudge.


STEPHAN KINSELLA: No, no.  Is it the information, or is it the piece of paper?  Which one are you talking about?  I’m not going to answer the question until you tell me what you’re asking, Bob.


ROBERT WENZEL: Well, let’s start with the formula itself.  I have a formula.  I’m aware of it.


STEPHAN KINSELLA: Actually, you don’t “have” a formula.  You know—let’s be precise.  You don’t—you know a formula, right?  You are aware of a formula.  It’s in your head.


ROBERT WENZEL: I’m not aware of the formula.  I know the formula.


STEPHAN KINSELLA: Yeah, you know it, but you don’t have it.  You know it.  It’s knowledge.


ROBERT WENZEL: I certainly do have it.


STEPHAN KINSELLA: Where is it?  Does it have a location?  Really?  Is knowledge a locatable thing?


ROBERT WENZEL: Hold it.  Hold it.  Is location necessary for scarcity?  I have a formula, and nobody has it.


STEPHAN KINSELLA: How do you have it?  What do you mean by you have it?  I’m asking.


ROBERT WENZEL: I have it in my brain.  I have the knowledge.




ROBERT WENZEL: In my brain.


STEPHAN KINSELLA: I thought it was on the paper.


ROBERT WENZEL: I put it there also, but that’s just …


STEPHAN KINSELLA: The same information is in two places?




STEPHAN KINSELLA: Well, that’s just amazing.  Maybe we could put it in a million places.


ROBERT WENZEL: Yeah, but it’s not there now, so is it scarce or not when it’s just in two places?


STEPHAN KINSELLA: No.  Information is not scarce.


ROBERT WENZEL: So who else has it besides me then if it’s nots scarce?


STEPHAN KINSELLA: You don’t have it.  You know it.


ROBERT WENZEL: Stephan [indiscernible_00:55:09].  Who else can use its function?  Lookit— who in the world besides me can act on that if I’m the only one that has that formula?


STEPHAN KINSELLA: No one.  Only you.


ROBERT WENZEL: So is it scarce or not scarce?  Is it superabundant everywhere?


STEPHAN KINSELLA: It’s not a scarce resource.  It’s not a scarce means of action.


ROBERT WENZEL: It’s not scarce?  Who else has it, Stephan?


STEPHAN KINSELLA: No one has it.




STEPHAN KINSELLA: No one has it.


ROBERT WENZEL: Right, so it’s scarce, isn’t it?








ROBERT WENZEL: What’s the formula, STEFAWN?  Scarcity—what’s the formula?


STEPHAN KINSELLA: So here’s Wenzel’s argument.  Stephan Kinsella doesn’t know private information in Bob Wenzel’s head.  Therefore … patent and copyright are valid.


ROBERT WENZEL: No.  Therefore, there are scarce ideas, Stephan.


STEPHAN KINSELLA: No, there’s not.


ROBERT WENZEL: Is it scarce or not?  It’s not scarce, but you don’t know what it is.


STEPHAN KINSELLA: It’s information.  I know exactly what it is.


ROBERT WENZEL: Well, tell me the formula then.


STEPHAN KINSELLA: This is a stupid argument.  Bob…


ROBERT WENZEL: How is that stupid?  How…


STEPHAN KINSELLA: Here’s the way a real libertarian looks at this issue, someone who’s not a clown.  You have a property right in your brain and your body.  This is a scarce resource you have the legally recognized right to control, to be the exclusive one who can control your body.  Guess what that gives you, Bob?  That gives you the ability to act, and it gives you the ability to keep your mouth shut if you don’t want to tell people your secret.


It gives you the ability to keep secrets.  It gives you the ability to run around your lawn naked at midnight worshiping the moon if you feel like it.  That doesn’t mean that you own this ability to run around.  It doesn’t mean you own your actions.  It doesn’t mean you own your labor.  It doesn’t mean you own the secrets in your head because those are not ownable things.  You have the practical ability to keep it private.  That’s no big deal.  This isn’t a real issue.


ROBERT WENZEL: So STEFAWN, is it scarce or not?  Stephan, when I have it, I’m not asking you what I’m doing with it.  I’m asking you specifically is it scarce knowledge, or does everyone have it?  Does every blogger in the world know this?


STEPHAN KINSELLA: You’re assuming that if everyone doesn’t have it that it’s scarce.  Scarcity means…


ROBERT WENZEL: Well, let me…


STEPHAN KINSELLA: Bob, scarcity means rivalrousness.  Do you understand that?  It’s an economic concept—rivalry.  And every economist in the world would agree that the information in your head is a pattern of information.  It is not a rivalrous object.  That means it cannot be owned.


ROBERT WENZEL: Well, whatever kind of object it is, there is some—would you admit I have a formula?


STEPHAN KINSELLA: In a metaphorical sense, yeah.  I would [indiscernible_00:57:47].


ROBERT WENZEL: Not in a metaphorical sense.  It’s a very real formula that I can act on.


STEPHAN KINSELLA: [indiscernible_00:57:50]  You have to be clear about what have means.  When you use have [indiscernible_00:57:55].


ROBERT WENZEL: Something that I can use and act on.  I can act on it, Stephan.  It’s not metaphorical.


STEPHAN KINSELLA: You can’t act upon it.  It’s information that can guide your actions.


ROBERT WENZEL: Exactly.  You know, word it however you want there, but it is still information I have.


STEPHAN KINSELLA: Well, I’m using praxeology.  I thought you were a Misesian.  Mises talked about human action being the use of knowledge to employ certain causally efficacious, scarce means to achieve a result.  So the knowledge plays one role, and the means play another role.  So no, knowledge is not a scarce means of action.  I don’t know how much more clear I could be or that Mises could be.


ROBERT WENZEL: So you’re saying it’s superabundant, that my formula is superabundant?  What are you saying?  Who else is acting on it?  How is it not scarce, Stephan?


STEPHAN KINSELLA: It’s not scarce because it’s not rivalrous.


ROBERT WENZEL: What do you mean it’s not rivalrous?  Suppose…


STEPHAN KINSELLA: Something that’s rivalrous means there can be rivalry or conflict or clashing over it.5

How could you and I have a conflict over that information, Bob?


ROBERT WENZEL: Very simple because if I sell it to B…






STEPHAN KINSELLA: Give me an answer.  How can you have conflict over the information?


ROBERT WENZEL: I’m attempting to do that, okay?  If I sell it to B under the condition that he not show it to anybody else and he breaks that contract and shows C, then C is a rival of mine if he attempts to sell that to other people while I’m trying to…


STEPHAN KINSELLA: No, he’s not.  He’s not a rival of yours.


ROBERT WENZEL: He’s not?  You don’t think that…


STEPHAN KINSELLA: You’re using equivocation.


ROBERT WENZEL: You don’t think there’s movement on the supply curve?  You don’t think there’s movement on the supply curve.


STEPHAN KINSELLA: This is not rivalry.  That’s not what rivalry is about.  Rivalry is about a specific type of good that can only be used by one person at a time, that there has to be conflict over.


ROBERT WENZEL: Why is that the definition?  There is certainly rivalry…


STEPHAN KINSELLA: Well, that’s what rivalry means.  Look it up [indiscernible_00:59:44].


ROBERT WENZEL: No.  There is certainly rivalry between me and person C.


STEPHAN KINSELLA: No, there’s not.


ROBERT WENZEL: If I am selling something and he’s selling the same thing and driving the price down, that’s not rivalry?


STEPHAN KINSELLA: I disagree completely, and let me explain to you why.  What you’re using is equivocation—not on purpose.  I don’t think you’re doing it on purpose.  But you’re getting confused with imprecise use of terms and overuse of metaphors.  Let me give an example.


ROBERT WENZEL: I’m not using any metaphors.


STEPHAN KINSELLA: Hold on.  Hold on.  Let’s have a—let’s try to be a little intelligent for a second.  Sometimes people say people fight over religion.  Now, this is actually not literally true.  What they mean is that religion is the motivation for why they fight over scarce resources.  The scarce resources are always land or people’s bodies.  So, for example, if I’m a Muslim and you’re a Christian, and I tell you I want you to convert to Islam, what I mean is I want you to go through certain motions with your body and that if you don’t, I might kill your body.  So what I’m saying is I have the right to use your body despite your will, so it’s always a conflict over bodies.


Now, people would describe that metaphorically as a fight over religion, but the religion is just the justification they would give for why it’s okay to use someone’s body without their permission.  But the dispute is always about a conflict, a conflictable, rivalrous, scarce resource, namely, your body or your land or something like that.

In the same way, in the dispute you’re giving, we’re talking about money.  So what you’re saying is if C doesn’t respect the contract between A and B, then C can compete with A and that…


ROBERT WENZEL: Rivalry, rivalry.


STEPHAN KINSELLA: That’s not rivalry.  Competition is not rivalry on the free market.  It is not rivalry at all in this sense, and you’ve got to know that, Bob.


ROBERT WENZEL: What?  Stephan, you don’t even know what the hell you’re talking about now.


STEPHAN KINSELLA: Let me finish my thought.  I do.  I think you’re confused.  If someone competes with you, they are competitors on the free market, and it is true that C might take some sales that you would have otherwise made.  So the real claim is on the money in the pockets of these customers that goes to C instead of goes to A.  So what you’re really saying is that because of your cockamamie IP theory—because you don’t like competition, because you had a contract with B—A thinks he has a property right in the money that customers gave to C.  Now, how did he get this property right, Bob?  You tell me because as far as I know, the customers owned it, and then they gave it voluntarily to C who didn’t violate  [indiscernible_01:02:26].


ROBERT WENZEL: Your two minutes are up.  Let me—I want to quote Hoppe from your book.


STEPHAN KINSELLA: Why don’t you answer one of my questions for once?  Why don’t you answer what I just said?


ROBERT WENZEL: Because I don’t want to.  I’m here to destroy you and to show that you don’t know what the hell you’re talking about.  I mean, any reasonable person is going to know my knowledge, my formula of how to get on Drudge is scarce and that people don’t have it out there.  And if somebody else gets it, that person is in rivalry with me.  I mean, Stephan, that’s just common sense.  I don’t have to defend it any further.  If anybody else agrees with you, Stephan, they should follow you wherever the hell they want, okay?  Let me quote from page 29.


STEPHAN KINSELLA: Hold on.  No, I’m not going to go back to the quoting right now.  I want to ask you a follow-up question.  If—a serious question.  Let’s suppose you have a drugstore.  You have a certain clientele of customers.  Now, a competing drugstore opens across the street.  Would you call that rivalry?




STEPHAN KINSELLA: Ok-ay…  And so if they take some of your business, are they stealing something that you had a property right in?


ROBERT WENZEL: It’s a rivalry.  I didn’t…


STEPHAN KINSELLA: But are they doing anything…


ROBERT WENZEL: It’s a different kind—rivalry is competition.  If they stole my products and sold my products, that would be stealing.


STEPHAN KINSELLA: Now you’re question begging.  You’re question begging because you’re assuming…


ROBERT WENZEL: Oh no, Stephan, I got you by the balls here.  Let’s go on.


STEPHAN KINSELLA: No, I’m not going on.




STEPHAN KINSELLA: I’m not going on.


ROBERT WENZEL: You quote Hoppe.


STEPHAN KINSELLA: Bob, I’m not.  I’m going to hang up if you keep doing this, I’m telling you right now, dude.  You are monopolizing it, which is fine to a degree, but I want to have a conversation about this.  You can go on to your next little pointless question if you want, but I want to follow this because you’re saying I’m trapped when you’re the one making no sense whatsoever.


ROBERT WENZEL: Go ahead.  Go ahead.  Go ahead.  Go ahead.


STEPHAN KINSELLA: Why don’t you distinguish for me competition that’s permissible versus competition that’s not permissible.


ROBERT WENZEL: Okay.  If a person sets up a pharmacy across the street from me, that’s rivalry.  There’s no question about that if they buy it from the same manufacturer.


STEPHAN KINSELLA: That’s not true.  That is questionable, but go ahead.


ROBERT WENZEL: All right.  But if a person sets up a pharmacy across the street from me and at night goes in and breaks and steal all the drugs from my pharmacy to sell them in their pharmacy, that’s rivalry, but it’s also theft.


STEPHAN KINSELLA: Yes, but Bob, we both agree on that, and don’t you—that’s why I started off this conversation by saying that you and I already agree on the basics of property rights in scarce resources.  So what you’re doing here, what you’re doing is you’re trying to make an analogy.  What you’re saying is just like it’s theft of my products when you steal and break into my store and take some of my stuff, similarly, in the case you gave, the knowledge that B gave to C is also a stolen product.  But you’re question begging because we don’t agree that knowledge can be an ownable thing.  Don’t you see?  This is the problem.  You have to have a [indiscernible_01:05:16].


ROBERT WENZEL: I’m going to get to that.  I want to go in the proper order of my presentation here…


STEPHAN KINSELLA: No, no, let me ask you one small question first.  This is more of a preliminary question.  Do you agree with me that you cannot establish something by engaging in question begging?  I mean, just as a general matter.  Do you agree with that?


ROBERT WENZEL: Why would I not agree with that?


STEPHAN KINSELLA: Just making sure.  So would you agree that if you tell me this is property because it’s wrong to steal it, that that’s not a good argument?  Because you understand stealing implies that there’s something owned to be taken in the first place.  You can’t show that there’s something [indiscernible_01:05:53].


ROBERT WENZEL: I will get to that, Stephan.


STEPHAN KINSELLA: No, no.  I want to know if you agree with me on that.  Do you think that you can prove that something is property by just labeling the taking of it as theft?  Is that how you actually show what property is by just calling it theft?


ROBERT WENZEL: I’m going to get to that, Stephan.  There’s a couple of steps, and I don’t want to confuse it.


STEPHAN KINSELLA: You can’t even [indiscernible_01:06:11].


ROBERT WENZEL: I’m trying to get there, Stephan.  From your own book, page 29, you…


STEPHAN KINSELLA: So your argument is so weak that you’re going to rely on something so stupid later that you can’t even admit right now that that’s a shoddy argument because you don’t want to…


ROBERT WENZEL: No, I don’t want to get out because you’re going to take the debate in areas that I don’t want to go.  I want to do two things.  I want to show how weak and sloppy your arguments are.  You’re off on Rothbard.  You’re…


STEPHAN KINSELLA: You don’t want to [indiscernible_01:06:37].


ROBERT WENZEL: … to bash people when you don’t even read the paper.  You don’t even know what the hell they’re saying.


STEPHAN KINSELLA: You don’t want to [indiscernible_01:06:45].


ROBERT WENZEL: Let me turn to page 29 here.  You quote Hoppe.  Only because scarcity exists is there even a problem of formulating moral laws.  Insofar as super—insofar as goods are superabundant, no conflict over the use of goods is possible.  Why are you quoting Hoppe that way?  What is superabundant about my formula?  That’s what Hoppe is saying, and you quote him.  What’s superabundant about my formula?


STEPHAN KINSELLA: Your formula is not superabundant, but it can be copied onto infinity.


ROBERT WENZEL: Yeah, but it’s not superabundant.  It’s not superabundant, Stephan.


STEPHAN KINSELLA: Hoppe is using it…


ROBERT WENZEL: You’re quoting Hoppe.  You’re quoting Hoppe on superabundance.


STEPHAN KINSELLA: But you don’t have an argument, dude.


ROBERT WENZEL: There’s scarcity insofar as a good—and the lack of scarcity insofar as the good is superabundant.  You’re quoting Hoppe there, Stephan.


STEPHAN KINSELLA: Sure.  I don’t know what your argument <chuckles> is supposed to be here.  This is kind of…


ROBERT WENZEL: Well, you’re arguing this.  How is my formula superabundant even if A, B, and C have it?  There’s no superabundance there.



STEPHAN KINSELLA: You see <chuckle>, you’re not making a coherent argument because you didn’t start from fundamentals.  You’re not defining your terms.  Hoppe is trying to explain why the institution of property has arisen and must arise only because of the existence of rivalrous or scarce resources.  Okay, so as a thought experiment, like if you’re familiar with calculus, which probably you’re not, but there’s something called a limit in calculus, which is … Hoppe is saying that as things get more and more abundant in reality, as they approach what’s called superabundance, and he uses the ideas of the Schlaraffenland, or the land of milk and honey.  It’s like Rothbard’s evenly rotating economy.  It’s an ideal construct that can never exist in reality.  But what he imagines is tbat you’re in a land where things are so abundant that there’s no possibility that you’d be ever short of it or that people can even take it away from you.


So it’s sort of like the idea of abundance gone to the limit would approach non-scarcity.  So, for example, if we lived in a land where we’re just kind of ghostly things and everything is a magically—you could just come up with something in the blink of an eye, like there’s an infinite number of bananas everywhere, and you could reach your hand up and grab a banana.  You’ve got the banana.  Well, in such a land, property would never arise as a concept because, number one, no one would ever want to take my banana from me because they can have their own bananas at any time.


And if someone did take my banana, I wouldn’t care because I could conjure another one up in the blink of an eye.  So he’s coming up with an ideal construct to explain why property rules arise and why they have to relate to scarce resources, that is, to rivalrous things.  We do live in a world that is not this land of milk and honey.  It’s not the Garden of Eden.  We live in a world where there are scarce resources.


These are what Mises talks about as the means of action, and we libertarians believe in property rights to assign an exclusive owner to each possibly contestable resource.  That does not include knowledge.  It includes scarce resources.  I don’t—it’s a very simple concept.  A lot of people seem to get it.  I don’t know what problem you have with it.

If you have an alternative theory, why don’t you tell me what your alternative theory is?


ROBERT WENZEL: Stephan, let’s—my alternative theory is that ideas are scarce, and they’re not superabundant the way Hoppe references them.


STEPHAN KINSELLA: Well, hold on.  So you think ideas are scarce, so you think ideas should be one of the types of things ontologically that’s a type of—subject to property rights, right?  So in other words, you have—so you would probably believe that we need to have property rights—intellectual property rights in more things than the current law covers, like we need it in fashion recipes and newspaper headlines and recipes for pizzas and bar drinks.


And also, they shouldn’t terminate after 17 years or 25 years or 120 years.  They should terminate—they should never terminate.  After all, they’re a property right, right?  So by your theory, we would all have to be walking around getting permission every second of our lives for every bit of information we used.  And in fact, every inventor of a new idea, Bob, you understand that they relied upon other ideas because none of us is born tabula rasa into the world.


We all are born assuming all the knowledge that other generations have come up with before.  No idea anyone comes up with is just totally brand new, ab nihilo.  It’s always built upon other people’s ideas.  So basically, you’re advocating a world of total stultification and communism where you have to get permission from everyone to perform any action, and we would all just die because you could never get permission from everyone to do anything.


Let me say one more thing.  Then you can reply.  I’ll make an analogy to what you’re doing.  You have the mindset.  You don’t seem to appreciate the terrible harm that granting new rights does, although you probably do appreciate it in the context of money and in the context of welfare rights.


So, for example, most simple-minded people who don’t have an appreciation of economics sort of equate money with wealth because you can use money.  Money is a sign of your wealth, or you can use it to acquire objects that you value.  And so they don’t understand why we don’t just have a minimum wage or why the Federal Reserve doesn’t print more money.  You and I understand what inflation is.  You and I understand that if the government prints more dollars, it doesn’t make us wealthier.


All it does is redistribute wealth and set the business cycle in motion, correct?  Same thing with welfare rights.  Most liberals of today, socialist, welfare-type liberals, they say, well, I’m in favor of property rights, but I’m also in favor of the right to an education and the right to a house and the right to a job and the right to XYZ.  They don’t understand that these rights come at the expense of existing rights.  If you have the right to a job, if you have the right to an education, that means someone else has to have an obligation to provide you with that.


So all these artificial rights that the state wants to create, inflating money dilutes the power of money, right?  Inflating rights dilutes the value of existing property rights.  If there is a right to welfare, now my property rights are less secure because the government has got to take some of it to provide welfare for people.

It’s exactly the same with intellectual property.  The libertarian Lockean idea is already complete, Bob.  It has an answer for every possible dispute.


ROBERT WENZEL: You’re way over your two minutes—you know, Stephan, I really don’t want to hear that stuff.


STEPHAN KINSELLA: I know you don’t.


ROBERT WENZEL: Let’s get back to the point.


STEPHAN KINSELLA: You apparently don’t want to hear any ideas.


ROBERT WENZEL: It’s babble.  You’re talking about me quoting Mises and Hoppe, and you’re babbling on in stuff that has nothing to do with the simple fact that ideas are scarce.  And you can’t get away from that.


STEPHAN KINSELLA: Since you’re the one quoting things, before you go on, here’s a quote from Hoppe.  I’m actually at least giving my own thoughts here.  You’re just quoting things, but here’s something from Hoppe in ’88 before I even started writing about IP.  Someone said in an audience, they said, in a panel question to Hoppe and David Gordon and others—they said, “a question for Hoppe.  Does the idea of personal sovereignty extend to knowledge?  Am I sovereign over my thoughts, ideas, and theories?”  Now, Hoppe’s answer is this.  “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.”


Now, see, Hoppe recognized early on—because he is so deep in the Misesian praxeology.  He recognized even without thinking about it a lot.  He recognized the fundamental incompatibility, because of the praxeological structure of human action, the fundamental incompatibility of trying to assign property rights to knowledge the same way we do to scarce means of action.  These are two fundamentally different aspects of human action.


ROBERT WENZEL: Stephan, can you right now demonstrate to me how I use the Drudge Formula?


STEPHAN KINSELLA: Can you tell me what I have in my left pocket?


ROBERT WENZEL: No, I can’t, and that’s the exact point.  Knowledge is scarce.  It’s not superabundant.


STEPHAN KINSELLA: What’s your argument, Bob?


ROBERT WENZEL: It’s not, Stephan.


STEPHAN KINSELLA: So what?  What’s your argument?


ROBERT WENZEL: My argument is you’re arguing that ideas are not scarce…


STEPHAN KINSELLA: All you’re saying is if you have secret information, it’s property.


ROBERT WENZEL: Let me ask you this.


STEPHAN KINSELLA: What you’re saying is it’s property.


ROBERT WENZEL: Let’s try something simple.  Do you understand multi-variable calculus?




ROBERT WENZEL: Okay. Well, it’s the extension of calculus from one variable and involves the differentiating functions that involve multi-variables rather than just one.  That’s a simple explanation.


STEPHAN KINSELLA: Well, I don’t know.  I’ve done first calculus, second calculus, multi-dimensional calculus.  I think you’re talking about multi-dimensional calculus.


ROBERT WENZEL: You could not explain it, and I just explained it to you, Stephan.


STEPHAN KINSELLA: Linear algebra, differential equations.


ROBERT WENZEL: Stephan, I asked you a question.  You couldn’t tell me.  I told you, okay?


STEPHAN KINSELLA: I don’t think that’s quite right actually…


ROBERT WENZEL: That was knowledge I had that you didn’t have.  It’s another case, which this is something that’s easily available…


STEPHAN KINSELLA: Derivatives and stuff.


ROBERT WENZEL: … in any calculus book.


STEPHAN KINSELLA: It’s derivatives of stuff.  The Germans—they make good stuff, derivatives and stuff. Ha ha… “clown”…


ROBERT WENZEL: Stephan, Stephan, the point is there’s all kinds of knowledge out there, and not everyone has—it’s not superabundant.  It’s just not.  Men have to act to either think about it [indiscernible_01:16:02].


STEPHAN KINSELLA: Is your theory that if—is your theory that if Bob Wenzel can think of some conceptual referent in life that is not superabundant that that means we should have property rights in it?  Is that your theory? “Duh… Duh…”


ROBERT WENZEL: The theory is that most ideas and information are not superabundant.  It’s not like air.  Air is superabundant.  Bananas in paradise are superabundant.  None of this stuff is superabundant.


STEPHAN KINSELLA: Well, Bob, once you release the information—I mean, look.  I’ve already admitted.  Once—it’s a secret.  You have the right to keep a secret because you have a property right in your brain and your body.


ROBERT WENZEL: Yeah, but even if…


STEPHAN KINSELLA: And if you let the information loose upon the world…


ROBERT WENZEL: Stephan, if A, B, and C have it, that’s three people.  It’s not something that’s just maintained in my mind.




ROBERT WENZEL: And all three of those people, they have incentive to keep it quiet and not tell anyone else.


STEPHAN KINSELLA: No, no, C has no incentive.  What’s C’s incentive?


ROBERT WENZEL: You have three sources, Stephan.


STEPHAN KINSELLA: Hold on.  What’s C’s incentive to keep it secret?  Tell me.  What’s C’s incentive?


ROBERT WENZEL: So they could sell it so more…


STEPHAN KINSELLA: No, no, no, no, no, no, no, no, no.  What’s C’s incentive?




STEPHAN KINSELLA: So you’re talking to…


ROBERT WENZEL: So he could sell it.  It’s valuable information.  People would pay tens of thousands of dollars for it.


STEPHAN KINSELLA: Well, but then three, four, five, ten people know, right?  Pretty soon it’s public, right?


ROBERT WENZEL: Yeah, okay, so—well, no, no, it’s not.  No, it’s not.  See, you start constructs, which are not necessarily true.  There are ways to structure these…


STEPHAN KINSELLA: Let’s focus on this.


ROBERT WENZEL: [indiscernible_01:17:36] very, very unlikely, unlikely for that information to go beyond the people it’s determined to go to.


STEPHAN KINSELLA: Oh yeah, it’s really unlikely.  That’s—it’s really unlikely.  That’s why we have to have SOPA and cracking down on piracy and the six strikes.


ROBERT WENZEL: Hey, that’s government, Stephan.  That’s not me and you, baby.


STEPHAN KINSELLA: No, no, no.  What I’m saying is it’s not unlikely—once information gets out, information can spread.  This is the whole point.


ROBERT WENZEL: You’re creating a strawman.


STEPHAN KINSELLA: It’s not a strawman.


ROBERT WENZEL: If I tell you I will tell you the Drudge thing, but if that gets out to anyone, either because you do it on purpose or inadvertently or in error or you’re sloppy or your leave it on a park bench or whatever, but if it gets out and I can prove it’s you, you will owe me $10 million.


STEPHAN KINSELLA: Well, first of all, let’s…


ROBERT WENZEL: You’re A) either not going to enter the contract or B) you’re going to enter the contract and be very careful with [indiscernible_01:18:25].


STEPHAN KINSELLA: Let’s get to the nitty gritty here because I think…


ROBERT WENZEL: You can stop it from going.


STEPHAN KINSELLA: Let’s get to the nitty gritty.  Hold on a sec because this is really where you’re going, although you don’t want to admit it.  You basically are trying to just justify Rothbard’s original half-hearted argument for contractual copyright, which by the way…


ROBERT WENZEL: Half-hearted?!  You’re calling Rothbard’s—the time he spent on copyright and patent where he clearly thought it out…


STEPHAN KINSELLA: No, he didn’t.  He didn’t take it very far.


ROBERT WENZEL: [indiscernible_01:18:48] half-hearted?


STEPHAN KINSELLA: He didn’t even realize that it contradicted his defamation theories, which you apparently haven’t read.  I mean…


ROBERT WENZEL: It doesn’t contradict his defamation theories.


STEPHAN KINSELLA: Yes, it clearly does.  According to this logic, why don’t you have a property right in your reputation, Bob?  After all, you put labor into it?  Why don’t you have a property right in your reputation?


ROBERT WENZEL: How would I have a property right in my reputation?


STEPHAN KINSELLA: Well, it’s valuable knowledge.


ROBERT WENZEL: I never held that.


STEPHAN KINSELLA: Okay, so hold on.  So let’s—but I think basically you understand, by the way…


ROBERT WENZEL: If somebody else has an opinion of me, believe me, Stephan, I have an opinion of you, and you don’t own that opinion.  It’s my opinion.  It has nothing to do with you.  It’s my scarce resource.


STEPHAN KINSELLA: But it’s just knowledge.


ROBERT WENZEL: It’s not yours.


STEPHAN KINSELLA: But it’s just knowledge.  That’s the whole point.  You can do…


ROBERT WENZEL: That’s right.


STEPHAN KINSELLA: You can do with knowledge in your head whatever you want with it just like if I learn of your Drudge Formula.




STEPHAN KINSELLA: Hold on.  If I learn about your Drudge Formula, why can’t I act on it?  Tell me why.


ROBERT WENZEL: Well, it depends upon how you learn about it.


STEPHAN KINSELLA: It does depend upon it.  That’s correct.  So if you tell me and we have a contract, you say, Stephan, you pay me a thousand bucks, I’m going to give you this information.  But you have to promise not to reveal it to anyone else, and if you do, then you’ve got to pay me $10,00 damages, whatever.  I don’t know, something like that, right?




STEPHAN KINSELLA: But we both agree with that.  That’s just contract law.  You understand this has nothing to do with intellectual property, nothing.  It just means you and I can have a contract.  The contract is about—by the way, the contract is about money.  The contract is two title transfers.  One is I’m transferring $1,000 to you now in payment for your performing an action that I want, which is giving me access to information.  Number two, there’s a conditional title transfer that comes later, which is my payment of damages to you if I do something with the information that you don’t want me to do.  So there’s just two title transfers.  That’s it.  That’s what contracts are, as Rothbard explained.  So that’s…


ROBERT WENZEL: Right.  So you would agree that the information is not superabundant at that point?


STEPHAN KINSELLA: It’s got nothing to do with that.


ROBERT WENZEL: Which is A and B have?


STEPHAN KINSELLA: It’s got nothing to do with that.  A and B made a contract with each other.


ROBERT WENZEL: Yeah, but it’s—because you’re going to come up with this scarcity argument down the road…


STEPHAN KINSELLA: Forget scarcity for a second.


ROBERT WENZEL: And I just want to be clear that…


STEPHAN KINSELLA: Forget scarcity.  So now let’s say I…


ROBERT WENZEL: I’m willing to forget, but you’re going to bring it up that there is no scarcity.




ROBERT WENZEL: I want to—so I want to establish at this point where A and B are involved, the knowledge is still scarce.


STEPHAN KINSELLA: Bob, Bob, here’s how the argument goes.  Scarcity…


ROBERT WENZEL: Why won’t you answer that question, Stephan?


STEPHAN KINSELLA: I’m going to answer it.  Scarcity just explains why we have property rights and what the function is.  The libertarian believes that when you find a scarce resource in the world, that is, some object that more than one person wants to use at the time and that only one of them can use.  That’s the possibility of conflict.  We believe that the guy that homesteaded it first or that purchased it by contract is the one that gets to control it.  That’s it.  That’s the whole answer.

And then the case against IP is simply recognizing that the only way to grant IP rights is to undercut these earlier homesteading rights.  That’s the whole argument.  It’s very simple.  So you don’t have to say it’s—it doesn’t matter if it’s scarce.  In this case…


ROBERT WENZEL: Except your whole argument is dependent upon scarce…


STEPHAN KINSELLA: Bob, Bob, you are relying apparently upon this contract theory, so let’s take it to the next step.  This is the nitty gritty.  Now, and I both agree that if I use the information in a way that you prohibited by our contract, then I’m doing something that’s at least going to cause me to suffer some penalty because I agreed upon a penalty.  But what if I tell the information to a third party and then they put it on the internet and then soon it’s out for everyone?  How do all these third and fourth and fifth parties—how are they violating your property rights?  Because they never did enter into a contract with you.


ROBERT WENZEL: Okay, let me explain that.  I’m at Hertz.  I rent a car.


STEPHAN KINSELLA: No, no, but you’re question begging.  You’re already question begging.


ROBERT WENZEL: No, no, Stephan, Stephan, I’m at Hertz.  I rent a car, and I sell the car to someone else.


STEPHAN KINSELLA: No, but we’re—Bob, we’re assuming that the car…


ROBERT WENZEL: [indiscernible_01:22:39] have a right to…


STEPHAN KINSELLA: You and I—no, you can’t do this.


ROBERT WENZEL: To take the car back from C.


STEPHAN KINSELLA: Bob, are you just—are you unable to understand an argument?  You have to at least understand what you’re disagreeing with.  I’ve already explained at least twice in this podcast that you and I both agree the car is a scarce, ownable thing.  What we don’t agree on…






ROBERT WENZEL: See, that’s why—Stephan, you have to identify A and B that at that point where A has the information and I give to B, there’s scarcity of that idea.


STEPHAN KINSELLA: But you understand you don’t have an argument.  Your argument is circular.


ROBERT WENZEL: It’s not superabundant, Stephan.


STEPHAN KINSELLA: Your argument is circular.  Do you understand why your argument is circular?  You’re saying…


ROBERT WENZEL: It’s not circular.


STEPHAN KINSELLA: You say information should be covered by property rights, should be a type of intellectual property because it’s an ownable thing that, if you use it without permission, it’s theft.  You understand?  This is a totally circular argument.


ROBERT WENZEL: No, no, no.  I’m not talking about theft.  It’s not—C is not theft.  You’re the one that…


STEPHAN KINSELLA: No.  If I use the Hertz Rent-A-Car without permission…


ROBERT WENZEL: If I rent a car from Hertz and then I sell the car to C, C did not steal it.


STEPHAN KINSELLA: You can’t sell it to C.


ROBERT WENZEL: Did C steal any—did C steal the car?


STEPHAN KINSELLA: You can’t sell it to C.  If C uses the car that Hertz owns without permission, he’s committing a type of trespass, which is a type of theft, yes.


ROBERT WENZEL: Yeah, but maybe he doesn’t know.  I take…


STEPHAN KINSELLA: Well, then he’s doing it innocently, but he’s still using property he has no right to use.


ROBERT WENZEL: Exactly.  So…


STEPHAN KINSELLA: But we agreed that it’s property, Bob.  We all agree the car is property.


ROBERT WENZEL: So I—why can’t I, as the original person designing the contract, go to C and say take that off your website?


STEPHAN KINSELLA: Because the reason…


ROBERT WENZEL: It’s not property.  It was given to you illegally…




ROBERT WENZEL: Just the way that Hertz did with the car.


STEPHAN KINSELLA: The reason the person—the third party can’t use the Hertz car has got nothing to do with contract.  It’s because there’s in rem of property (erga omnes).


ROBERT WENZEL: We’re talking scarcity.  We’re talking property, and we’re talking legitimate rights transfer.  That’s what we’re talking about, and it’s the same thing whether you’re talking about a car or information.  You may not like that fact, but it’s a clear, logical step as to why I can go to person C and say, hey, take that down.  Hey, you’ve got a copy of a book.  You cannot sell that book.


STEPHAN KINSELLA: Well, why don’t we enter the year 2013 and stop talking about paper books left on park benches.  I mean, information now is digital, and it’s on the internet.  It doesn’t have a physical substance really.  It’s just patterns.  It can be duplicated perfectly forever.  So if you go to Google or you go to some website and you see a copy of Bob Wenzel’s Magnum Opus proving rights, which would probably have just two pages, if I see that pattern of information…


ROBERT WENZEL: You know, you’re a real snippy bitch.


STEPHAN KINSELLA: Well, you’re saying you want to destroy me, so what do I care?  I think you’re—I don’t know.  Maybe scientology messed you up or whatever it is.  I don’t know.  But why don’t you tell me, Bob?  Where did the third person who sees information on the internet—where did I agree to a contract with the original creator of the information?  Where’s the contract?


ROBERT WENZEL: Now you’re creating a construct that has nothing at all to do with property rights.  Property rights is not limited.  Intellectual property rights is not limited to…


STEPHAN KINSELLA: Well, Bob, if I created the construct, then I guess I—if I created the construct, I guess I own it.


ROBERT WENZEL: You own it, but it’s an absolutely stupid construct.


STEPHAN KINSELLA: Well, I’ll sell you my construct for 50 cents, and then I’ll give you the right to use but only…


ROBERT WENZEL: It’s not worth 50 cents.  It’s a piece of junk.


STEPHAN KINSELLA: Well, I still deny your right to use my construct.


ROBERT WENZEL: If something is on the web, first of all, we have to know why it’s on the web, what clauses or information limits what’s on the web.  If someone puts it on the web, it depends upon what the person that puts it on the web is attempting to do.  Is he trying to get that information out there for free or not?


STEPHAN KINSELLA: Construct.  They’re not—people putting things on the web, and it depends on their purposes.  Yeah, okay, that’s a good argument for IP so far.  Continue.  So far I don’t know a definition from you.  All I know is you think if you have a secret then you can sell it.


ROBERT WENZEL: So Stephan, you still haven’t identified the difference between person C who has a car that it unknowingly belongs to Hertz and a person C who is using a formula that does not—that he is not gained through legitimate channels.  You may not be aware of that, but what’s the difference?


STEPHAN KINSELLA: You’ve actually—you’ve persuaded me, Bob.  I think you’re right.  April Fool’s.  But no, seriously—no, I can’t think of any difference except for the fact that the car is a rivalrous scarce resource, and the information is not.  But other than that, there’s no difference.


ROBERT WENZEL: Why is a formula a rivalrous scarce resource when only three people have it, and it drives down the price of the [indiscernible_01:27:32]?  How is that different from [indiscernible_01:27:33].


STEPHAN KINSELLA: What are you, neoclassical?  What’s the price being driven down have to do with its nature as a rivalrous good?  What’s that got to do with anything?


ROBERT WENZEL: Because what you’re doing is you’re introducing…


STEPHAN KINSELLA: What who’s doing?


ROBERT WENZEL: A further supply of a good.  It’s simple.  That’s basic economics.


STEPHAN KINSELLA: I thought that was a good thing, to increase the supply of goods.


ROBERT WENZEL: It depends upon how you do it.  If you steal the goods from somebody else and you drive down…


STEPHAN KINSELLA: Oh.  More question begging.


ROBERT WENZEL: [indiscernible_01:28:02] price.


STEPHAN KINSELLA: Well, who stole it in this case?  So let’s say A, B, and C have the information, and D overhears C talking about it or observes the product that embodies the information.  Who is he—when did the theft occur exactly?


ROBERT WENZEL: Okay, well, now what you’re doing is you’re going into the enforcement and protection of IP.


STEPHAN KINSELLA: So you’re against enforcement of IP?


ROBERT WENZEL: No, no, no, no, no, no.  My—that’s why I put up the picture at the Mises Institute.  There are various levels and degrees of protection and enforcement depending what somebody wants.  The Mises Institute has a sign up there: no trespassing.  At the same time…


STEPHAN KINSELLA: As far as I can see, you have some cockamamie theory where if you can show that you can sell something for a price, then you need some kind of anti-competitive right to keep your market high and the prices high, and that makes it scarce in a sense.




STEPHAN KINSELLA: So it can be owned.  But by your theory, you’re as crazy as Galambos or Rand.  You would protect—you would have to protect things for far longer, Bob, than the current law does, in fact, for forever.  After all, it’s a property right.  And you would have to protect things that are not protected now like database rights, recipes, fashion designs.


ROBERT WENZEL: You can create any strawman you want.


STEPHAN KINSELLA: It’s not a strawman.  I’m for competition.  You’re apparently not for competition.  You’re—you don’t want competition on the free market.


ROBERT WENZEL: No.  I’m for private property.


STEPHAN KINSELLA: No.  You call it rivalry now.  You think competition is rivalry.  You really think competition is rivalry.  It’s insane.  Did you get that from a bubblegum package or…


ROBERT WENZEL: Basically, the—if someone obtains something illegally…


STEPHAN KINSELLA: But that’s question begging, dude.  You can’t say it’s illegal in the argument for why it should be illegal.  Do you understand basic argumentation?  Jesus.


ROBERT WENZEL: Well, that’s why in the beginning I asked you about A and B and whether they had a contract and whether it was scarce at that point.


STEPHAN KINSELLA: The contract is scarce?


ROBERT WENZEL: What’s that?


STEPHAN KINSELLA: What’s scarce?  The contract?  The paper?  The knowledge?


ROBERT WENZEL: The formula.  The formula.  Is it scarce?  I mean, in your strange world, it’s superabundant or something.


STEPHAN KINSELLA: It’s infinitely copyable, of course.




STEPHAN KINSELLA: It’s infinitely copyable.  Of course it is.


ROBERT WENZEL: It’s—infinitely copyable is not the same thing as being—not every blogger in the world knows now what my formula is to get on Drudge.


STEPHAN KINSELLA: Bob, let me give you a simple…


ROBERT WENZEL: It’s scarce, Stephan.


STEPHAN KINSELLA: Let me give you a simple hypothetical and see where we disagree.  Okay, let’s try this.  Let’s say you and I both want to make a German chocolate cake.  Now, we each have our own kitchen, our own house, our own mixing bowls, our own eggs, our own flour, our own oil, our own ovens.  You would agree that these are all scarce resources, correct?




STEPHAN KINSELLA: And you would agree that we would both favor a system where you have property rights in yours, and I have property rights in mine, correct?




STEPHAN KINSELLA: And you would agree that if we don’t have these property rights, then we can’t both use the same mixing bowl at the same time to make a cake and that we might have conflict or violent clashing over this, right?  You would try to take it from me, and instead of making a cake, we’re just fighting each other.  And then maybe one of wins, but this is not civilized contact.


ROBERT WENZEL: Go ahead.  Go ahead.


STEPHAN KINSELLA: So we agree with that, right?  But let’s say you and I both learned of my grandmother’s or your grandmother’s secret recipe for making a German cake, and we’re both following that recipe at the same time.  You do agree that there is no limit to the amount of people that could simultaneously make a cake following the same recipe but that each one of them would have to have—hold on.  Each one of them would have to have their own scarce resources, their own raw materials, their own capital goods.  But they could all use the same recipe at the same time.  You do agree with that, right?


ROBERT WENZEL: But they would have to have knowledge of the recipe to…


STEPHAN KINSELLA: I agree.  I agree.


ROBERT WENZEL: [indiscernible_01:31:52] everything else.


STEPHAN KINSELLA: But they could.  They could all use the same knowledge at the same time, but they couldn’t use the same…


ROBERT WENZEL: But that—not everyone would have the exact same knowledge about a recipe or anything.  I find that real hard to…


STEPHAN KINSELLA: It’s good enough for government work.  It’s good enough for government work.  I mean, look, you and I can look up right now Captain Bojangles…


ROBERT WENZEL: Let’s see where you’re going with this…


STEPHAN KINSELLA: You and I right now could go to Google.  We could look up Captain Bojangles’ Bloody Mary recipe, and every one of the seven billion people on the Earth could theoretically do that.  They could all use this…


ROBERT WENZEL: Yeah, but they’re not all going to do it.  They may not have computers.  There’s certainly a lot of people on the planet that don’t have computers.  Others may not have Google skills.  Some may not know how to read.


STEPHAN KINSELLA: Yeah, but the point is—I know…


ROBERT WENZEL: It’s not superabundant.


STEPHAN KINSELLA: Hold on.  Let’s say there’s 100 people making this recipe at the same time.  Now, I observe you making your Bloody Mary recipe.




STEPHAN KINSELLA: Speaking of which, I’m kind of craving one right now.  So I observe you doing that.  Now, if I walk down and I take your pitcher and your tomato juice and your Tabasco, then I’m going to prevent you from making your Bloody Mary.  Would you agree with that?


ROBERT WENZEL: I’m sorry.  I wasn’t paying attention.


STEPHAN KINSELLA: If I observe you making a Bloody Mary following a certain technique and I come and I take—physically take from you your tomato juice or your Tabasco sauce or your pitcher, then I’m going to prevent you from being able to succeed in your project.  Isn’t that correct?


ROBERT WENZEL: But you’re going to be able to prevent me from doing what?


STEPHAN KINSELLA: From making your Bloody Mary if I take your ingredients from you.


ROBERT WENZEL: Oh, you’re talking about—not the recipe.  You’re talking about the physical Bloody Mary.


STEPHAN KINSELLA: If I just take your ingredients from you, you won’t be able to make your recipe, right?




STEPHAN KINSELLA: That’s why you would fight me.  That’s why you want property rights because you want to be able to use these ingredients in peace.  But suppose I observe you making the Bloody Mary, and I go get my own ingredients, and I start doing exactly what you’re doing, and I make a duplicate Bloody Mary.




STEPHAN KINSELLA: Now, how does that prevent you from engaging in your business?  How does it prevent you from succeeding at the task you set for yourself?


ROBERT WENZEL: Again, you’re creating…


STEPHAN KINSELLA: Just go with me.  Go with me.


ROBERT WENZEL: I will explain it to you.  All right…


STEPHAN KINSELLA: Wait.  Does it—do you think it does prevent you?  Does it—do you think it really prevents you from…


ROBERT WENZEL: I’m going to explain it to you.  It is still not a superabundant thing.  Not everybody in the world knows how to make a Bloody Mary.




ROBERT WENZEL: So if a person is stealing that from me, it actually proves my point.


STEPHAN KINSELLA: But how would they steal it?  You mean by observing you?  Does that steal it?


ROBERT WENZEL: Yeah.  Well, the fact of the matter is…


STEPHAN KINSELLA: Wait, wait, wait, wait, wait, wait, wait, wait, back.  Are you saying that if I observe you doing something and I learn from your behavior that I’m stealing from you?


ROBERT WENZEL: Let me say taking it.  Let me say taking it.


STEPHAN KINSELLA: But I’m not taking it.  You still have it.  I’m not taking it.  What do you mean taking?


ROBERT WENZEL: He takes it for his own use.


STEPHAN KINSELLA: He’s not taking it, Bob.  You still have it.  How is it taking?


ROBERT WENZEL: Stephan, Stephan.


STEPHAN KINSELLA: You mean he learned.  He learned by observing, what you’re saying.  He learned by observing.


ROBERT WENZEL: All right, we’ll go with the word “he learned.”


STEPHAN KINSELLA: He learned.  So are you against learning now?


ROBERT WENZEL: The point is—are you going to give away all your legal education for free and stuff like that?  I mean, Stephan, come on.


STEPHAN KINSELLA: Bob, if the guy is doing something…


ROBERT WENZEL: You’re creating strawmen all over the place.


STEPHAN KINSELLA: If the guy is doing…


ROBERT WENZEL: Stephan, let me get back to the point.


STEPHAN KINSELLA: If you’re performing an action in public…


ROBERT WENZEL: [indiscernible_01:35:04] to get knowledge.


STEPHAN KINSELLA: Bob, if you perform an action in public…


ROBERT WENZEL: It’s not superabundant.  It’s not superabundant.


STEPHAN KINSELLA: I don’t care.  If you’re performing an action and people can learn from what you’re doing, that’s called competition.  That’s called learning.  That’s emulation.


ROBERT WENZEL: But you just created a strawman where you said everybody knew this.  Everybody could look it up.  Yet at the same time you’re telling me about a guy that doesn’t have the information.  It’s a scarce good.


STEPHAN KINSELLA: What’s wrong with learning from other people, Bob?  What’s wrong with learning from other people?  What does it take from them?


ROBERT WENZEL: Where do I go after the guy—look.  I’ve had economists steal some of my stuff where I wrote critiques…


STEPHAN KINSELLA: It’s not stealing.  You’ve got to quit using that.  That’s question begging.  That’s an illegitimate tactic because you know I haven’t agreed that IP is a type of property, so you keep calling it stealing.


ROBERT WENZEL: Well, then interpret it in your own world.  I consider it theft.


STEPHAN KINSELLA: Well, you can consider it whatever the hell you want, but that doesn’t mean that you’re right.  What’s your argument?


ROBERT WENZEL: It doesn’t mean you’re right either.


STEPHAN KINSELLA: Bob, I have demonstrated very clearly that—look.  I gave you the example earlier.  All right, let’s try this because in my mind I’ve thought about this from 17, 25 different angles over the years, and to my mind…


ROBERT WENZEL: Clearly not enough, and you’re sloppy about your work, but go ahead.


STEPHAN KINSELLA: All right, the clearest way of explaining or understanding what’s wrong with IP is the restrictive covenant, negative servitude idea I gave earlier.  Now, would you not agree with me that I can do whatever I want in the privacy of my own home as long as I don’t, number one, commit a tort against you, like invade your property, like shoot a gun into your property or pollute into your property or if I haven’t given you a contractual right to prevent what I can do with it?  Wouldn’t you agree that that’s the only way that you have the right to stop me from doing something in my own property?  In other words, suppose the government says, Bob, we’re going to enact zoning laws, and we’re not going to let you put two stories onto your house.  Don’t you think that’s a taking of part of your property rights, that they’re acting like a partial owner of your property with you?


ROBERT WENZEL: Stephan, you have this block that if something isn’t physical, it’s not property.


STEPHAN KINSELLA: No, no, but we both agree that physical things at least should be property.  That’s what we agree on, right?  Do you agree that it’s right…




STEPHAN KINSELLA: Well, hold on.  Do you agree that it’s right that the government can tell you that you can’t use your property in certain ways, your physical property?


ROBERT WENZEL: Oh, I see where you’re going.  Yeah, you’re really wrong on this one.


STEPHAN KINSELLA: Hold on.  Hold on.  Hold on.  Hold on.  Just answer my question.


ROBERT WENZEL: Let’s go.  Yeah, yeah, I’m with you there, but…




ROBERT WENZEL: Take this one.  Go ahead.  Go ahead.


STEPHAN KINSELLA: So you agree that if someone acquires the legal right to veto your use of your property, that that is a taking of part of your property rights unless you gave it to them voluntarily, that is, by contract.  Wouldn’t you agree with that?  I mean, it’s just a simple thing.  I’m not trying to trap you.  That’s the way property rights work.  I mean, in other words, let’s say you and I are neighbors, okay, Bob?  And let’s say…


ROBERT WENZEL: You can do—yeah, but again, there are limitations there.  For example, if the person shoots into my property, he can’t do that.


STEPHAN KINSELLA: Yeah, I just said that’s right.


ROBERT WENZEL: Likewise, if he somehow gains some information I have…


STEPHAN KINSELLA: No, no, no, no, no, no.  Hold on.  Hold on.


ROBERT WENZEL: [indiscernible_01:38:22] information and attempts to use that on his property even though he did not acquire that information in a valid manner…


STEPHAN KINSELLA: What’s that mean, valid?  That’s question begging.  What do you mean, valid manner?  What’s a valid manner?


ROBERT WENZEL: I’ll explain that to you.


STEPHAN KINSELLA: What’s a valid manner?


ROBERT WENZEL: If I have—I will explain it to you.  If I have a formula for getting on Drudge, which I sell to somebody, B, on the grounds that he not reveal it to anybody else…


STEPHAN KINSELLA: No, let’s be specific.


ROBERT WENZEL: And then he goes to my neighbor.


STEPHAN KINSELLA: Be specific.  What’s your contract?


ROBERT WENZEL: And then he goes to my neighbor…


STEPHAN KINSELLA: No, no, no, no, no.  I want to know what your contract is.


ROBERT WENZEL: And says here’s—what?


STEPHAN KINSELLA: Be specific.  What’s the contract?  You and your customer, you’re telling them what?  They have to pay you for information, and they also have to agree to what?


ROBERT WENZEL: To not reveal it to anyone else.


STEPHAN KINSELLA: What does that mean, not reveal it?  Can they use it?


ROBERT WENZEL: They can use it to attempt to get links on Drudge, but they cannot use it for any other purpose.


STEPHAN KINSELLA: Well, what does that mean?


ROBERT WENZEL: Cannot reveal it to anyone.  What?


STEPHAN KINSELLA: What does that mean you can’t use it for any other purpose?  Can they think about it?  Can they…


ROBERT WENZEL: Yeah, well, they can think about it.  I mean, we can put that in, yeah.


STEPHAN KINSELLA: Okay, so they can think about it.


ROBERT WENZEL: If you’re their lawyer, and you want to raise these kind of ditsy things with them, yeah.


STEPHAN KINSELLA: It’s not ditsy because it matters here, so what I’m saying is what if they use the formula as they have purchased the right to do apparently, and someone else observes them over time making a lot of money.  And they sort of figure out what they’re doing.  Is that revealing the information?


ROBERT WENZEL: If it’s—no, that is another person independently gaining knowledge of the formula.


STEPHAN KINSELLA: Oh good.  So you’ve apparently just given up the whole case for IP.  So congratulations.  I knew you’d agree with me eventually.  You’ve just conceded there can’t be IP, so very good.




STEPHAN KINSELLA: You believe in contract apparently.


ROBERT WENZEL: See, this goes back to you don’t understand Rothbard because Rothbard believes in copyright and patent.  He says independent discovery is not a problem as far as…


STEPHAN KINSELLA: What does that mean it’s not a problem?  What do they mean it’s not a problem?


ROBERT WENZEL: As far as limiting someone with regard to their use of an idea.  However, however, what Rothbard means by independent discovery is by him thinking about it or doing something on his own versus someone under contractual obligation not to reveal it to someone else.  That’s not independent discovery in the Rothbard sense of the word.


STEPHAN KINSELLA: Well, patent law actually has no defense for independent discovery.  So actually…


ROBERT WENZEL: Yeah, exactly.


STEPHAN KINSELLA: So Rothbard doesn’t defend patent law like you just said he did.


ROBERT WENZEL: Rothbard defended patent law.  He just says it should be a different structure that should be the same as copyright.  Read Rothbard.  Rothbard is 100% in favor of copyright the way it is now, and he’s in favor of patent law as long as it’s structured the way copyright is.  That’s what Rothbard is all about.


STEPHAN KINSELLA: Well, he can’t be in favor of it the way it is now because when he wrote in the ’60s, the copyright term was about 20 or 40 years shorter than it is now.  So which copyright term does he think is implied in the natural structure of the fabric of the universe?  Is it 40 years after death or…


ROBERT WENZEL: He would argue forever.  He would argue forever.


STEPHAN KINSELLA: Oh really?  Well, that’s now how copyright law is now.  So Rothbard believed in copyright in perpetuity you think, really?





STEPHAN KINSELLA: So he was as crazy as Galambos.


ROBERT WENZEL: I mean, do you want me to dig up the quote?


STEPHAN KINSELLA: Yeah, yeah, I would love to see Rothbard talking about perpetual copyright.


ROBERT WENZEL: There’s absolutely no way that—but anyways, talk about something—some other thing now.  Let’s see.


STEPHAN KINSELLA: Well, Bob, you still haven’t given your defense of IP.  You told me hold on; hold on.  I’m getting to it, Sally.  But I ain’t seen no defense of IP.  I don’t see just a definition of it.


ROBERT WENZEL: Well, here’s the defense of IP.  Let me say it for you.  Ideas are not generally superabundant.   They are scarce.  There is a—if a person has an idea, it’s his.  It’s scarce.  If he makes a contract with B, it is still scarce because it’s between A and B.  And B, if he reveals it to C, invalidates his contract in the same way that if I rent a car from Hertz…


STEPHAN KINSELLA: It’s not the same way.  That’s question begging.


ROBERT WENZEL: And sell it to C—what’s that?


STEPHAN KINSELLA: It’s not the same way.  You’re question begging.


ROBERT WENZEL: It’s not question begging.


STEPHAN KINSELLA: It is question begging.  After we’re done, look up question begging.  But the—so basically your argument is just Rothbard’s confused contract argument, which I’ve already debunked, so I don’t know.


ROBERT WENZEL: You haven’t.  How did you debunk?


STEPHAN KINSELLA: I got a whole section in that article.


ROBERT WENZEL: You—hold it.  First of all, you have Rothbard as being anti-copyright and anti-patent.  You don’t even understand Rothbard.


STEPHAN KINSELLA: Rothbard believed that you could create some aspects in a private society similar in some ways to modern IP systems by contract.  Now, he shouldn’t call it—he called it copyright because he’s talking about putting a stamp on something.


ROBERT WENZEL: So copyright is therefore a logical device of property right on the free market, quote unquote Rothbard.


STEPHAN KINSELLA: Yeah, that’s what he said.


ROBERT WENZEL: So he’s in favor of copyright.


STEPHAN KINSELLA: No, he’s in favor of…


ROBERT WENZEL: You’re lumping him with people that are against copyright.  He’s not against copyright.


STEPHAN KINSELLA: Well, he was against statutory copyright, and he was for contractual scheme.  He thought that…


ROBERT WENZEL: Statutory—what?


STEPHAN KINSELLA: He was in favor of—he thought you could use contracts to replicate some of the features of the modern IP system, and he was wrong.


ROBERT WENZEL: But you have him in a category where he’s against IP, and he’s not against IP.  You’re wrong.








ROBERT WENZEL: You’re bringing it up, not me.  You’re bringing it up.  It’s more sloppy stuff from you.



STEPHAN KINSELLA: Well, Rothbard was a little—Rothbard’s…


ROBERT WENZEL: Hold on.  Let me get back to my point.  I am not begging the question.  I am not saying that because a…


STEPHAN KINSELLA: You’re making the analogy to the Hertz Rent-A-Car case, so you’re assuming just like, just like.


ROBERT WENZEL: But that’s not begging the question.  It’s attempting to demonstrate…


STEPHAN KINSELLA: Bob, let me tell you what I see as…




STEPHAN KINSELLA: Hold on.  Let me tell you the difference between the two cases.


ROBERT WENZEL: … why you can have property rights.




ROBERT WENZEL: Intellectual property rights.




ROBERT WENZEL: If A makes a contract with B, and then C attempts whether it’s a book or whatever, and then now you want to go off into the mega land of the internet because you can’t defend C printing books.  You’re in trouble there.


STEPHAN KINSELLA: No, I can defend C printing books.  I would defend C’s right to print books, and I think he’s doing nothing wrong whatsoever.  I actually do defend it because C doesn’t have a contract.


ROBERT WENZEL: Yeah, but C—it’s the same thing.  It’s the same thing.  How is that different from a car?  How is it different from…


STEPHAN KINSELLA: That’s your argument?  How—your argument is a question, how is it different…


ROBERT WENZEL: I agree with Hertz to rent a car and then selling the car?


STEPHAN KINSELLA: Because, Bob, you and I—hold on.  No, you asked me a question, so now you get to have an answer, and if you can listen, maybe you’ll actually learn something, which I won’t consider is a violation of my property rights.  You and I both agree that there ought to be property rights in the car, so Hertz owns the car.  They’re loaning it to, or leasing or renting it temporarily to someone for a restricted use for a temporary period of time.


And they have a contract between them and their customer that specifies how this person can use the car.  They can’t drive it to Mexico and sell it for spare parts.  They can’t destroy it.  They can’t use it in a stunt in a movie.  They can only use it for certain regular uses specified in the contract.  So if the owner of that—if the renter of the car loans it to his friend when the contract says you can’t loan it to anyone not identified in the contract ahead of time, then here we have a scarce resource, which we all agree is ownable, and that, in fact, is owned and is owned by Hertz.


ROBERT WENZEL: Hold on.  I’ve got to stop you.


STEPHAN KINSELLA: No, no, no, no, no, no.


ROBERT WENZEL: Stephan, I’ve got to stop you because you know when you laugh your ass off at me saying Rothbard would be against perpetual copyright.




ROBERT WENZEL: Well, I find the quote.  Again, Stephan, you do not know what the fuck you’re talking about.  Here’s Rothbard, quote unquote: On the free market, therefore, there would be no such thing as—oh, here it is.  There would, however, be a copyright for any inventor or creator who made use of it, and this copyright would be perpetual.


STEPHAN KINSELLA: That’s not copyright though.  He’s talking about contract, dude.  He’s not talking about copyright.  That’s what you don’t understand.


ROBERT WENZEL: I’m telling you what he’s saying.  There would, however, be copyright for any inventor or creator who would make use of it, and this copyright would be perpetual.


STEPHAN KINSELLA: He’s talking about contract.  He’s talking about his contractual scheme, which he’s wrong about.


ROBERT WENZEL: Hold it.  Stephan, I’ve got you by the balls again.


STEPHAN KINSELLA: No, you don’t.  No, you don’t.  Rothbard was opposed to the copyright statute.


ROBERT WENZEL: Stephan, Stephan, I got you again.  You don’t know what the fuck you’re talking about.  I’ve got you by the balls.  You laughed your ass off when I said Rothbard would be in favor of perpetual copyright, and he says it right here.


STEPHAN KINSELLA: No.  Rothbard is in favor of…


ROBERT WENZEL: Stephan, you did not say that.  You laughed your ass off.


STEPHAN KINSELLA: You’re wrong.  You’re totally wrong.  He was not talking about—this is the problem.  I tried to tell you earlier, and you don’t want to listen.


ROBERT WENZEL: We’ll let the listeners decide.  You don’t know what the fuck you’re talking about.


STEPHAN KINSELLA: I’d love for them to.  I’d love for them to.  Rothbard is not talking about modern copyright systems or statutory.  He’s talking about his hobbled-together, contractual copyright scheme, and because Rothbard believed that contracts are ways of assigning rights in scarce resources, he did believe those lasted forever.  But his mistake is in thinking you could create with a contract something similar to modern IP.  He does not believe in perpetual copyright, nothing whatsoever like the modern advocates for perpetual copyright do.  So you’re just wrong, and still—so back on the…


ROBERT WENZEL: He did not believe in perpetual copyright when he says there would, however, be copyright for any inventor or creator who will make use of it, and this copyright would be perpetual, not limited to a certain number of years.


STEPHAN KINSELLA: He’s using the word copyright in a different way.  This is the problem with equivocation.  He’s talking about something totally different.  He is slapping the word copyright onto his contractual scheme idea, which is obvious he’s misusing it because he uses a mousetrap as the example, which is a patentable thing, an invention.  It’s got nothing to do with copyright.  This is the problem with people who don’t understand the details of the law, just slapping these things together.


ROBERT WENZEL: Stephan, you’re wrong.  He makes a clear distinction between copyright and patents.  He knows a mousetrap is a—patent needs to be applied to it.


STEPHAN KINSELLA: So why does he use a mousetrap for the example of a copyright then?  Why?


ROBERT WENZEL: Because what he’s saying is that the way patents should be constructed is the way similar to copyright.  He’s not confusing the two.  You’re confused.


STEPHAN KINSELLA: He is confusing them.  He is confusing them.




STEPHAN KINSELLA: He is confusing them.


ROBERT WENZEL: No, he’s not.  He’s saying—he thinks—he goes right, Stephan, and says copyright currently is such and such.  Patent is such and such.  Copyright is—because it’s independent discovery, it allows works because patent does not allow independent discovery.  It’s not the way it would work on a free market.  However, if patent would work in the way copyright does, you could have patent on the independent market, and that’s why he uses the example of the mousetrap.  You don’t understand what he’s saying.


STEPHAN KINSELLA: I fully understand it.  Do you think that Rothbard…


ROBERT WENZEL: You do not.


STEPHAN KINSELLA: Do you think Rothbard believed in competition?  Do you think Rothbard thinks that if someone puts a new mousetrap on the market that other competitors are free to observe the structure and design of that trap and make a competing mousetrap using some of the innovations in that mousetrap?  Do you think he believed that or not?  Simple question.



ROBERT WENZEL: What he says, and again, I may have…


STEPHAN KINSELLA: Bob, Bob, Bob, Bob, do you really—I mean, honestly, I’m just asking you if you think Robert believed in competition and free market.  It’s a simple question.


ROBERT WENZEL: See, but it’s a loaded question because you’re going to go and defend competition as being a theft of intellectual property.


STEPHAN KINSELLA: No, I’m saying that Rothbard…


ROBERT WENZEL: Stephan, Stephan, I know what the hell you’re trying to do.


STEPHAN KINSELLA: No, you don’t.  You have no idea.


ROBERT WENZEL: It’s a loaded question.


STEPHAN KINSELLA: You don’t know how to make an argument.  You’re making—all you’ve done is…


ROBERT WENZEL: I don’t know how to make an argument.


STEPHAN KINSELLA: No, you’re done circular arguments the whole time.


ROBERT WENZEL: I just showed you, you don’t know Rothbard.  You’re quoting Boldrin wrong.  You didn’t even read the paper on Boldrin.


STEPHAN KINSELLA: Stephan Kinsella can’t quote a paper.  Stephan Kinsella made a mistake, so IP is justified.


ROBERT WENZEL: Somehow you think my formula to get on Drudge is superabundant.  Come on.  You don’t know what the hell you’re talking about.


STEPHAN KINSELLA: So, again, your theory: Anything that’s not superabundant, Bob Wenzel can own.  I mean, what is this?  You don’t…




STEPHAN KINSELLA: You keep making the analogy between the Hertz Rent-A-Car.  The reason that the third party is committing a type of trespass when he’s using that car without permission of Hertz is he’s using someone’s property without their permission.  Now, you come up with the red herring that, well, he might not know it.  He might be innocent.  That’s got nothing to do with it.  You’re still not entitled to use…


ROBERT WENZEL: Well, exactly, exactly.  That’s my point.


STEPHAN KINSELLA: So he can sue his friend, but he’s using someone’s property without their consent.


ROBERT WENZEL: It’s intellectual property.


STEPHAN KINSELLA: Hey, Bob.  If I’m away on the weekend and someone breaks into my house and pretends like they’re the owner, and they invite you over for a party, and they say, hey, let’s trash my house and you do it, you’re actually committing a type of trespass against my property.  You might not know it, but you are actually using property that you don’t own.  Do you understand that?  The reason is, it’s called—what’s called in the law in rem rights, rights good against the world (or erga omnes), rights in property.  You’re trying to analogize contractual rights, which are in personam, just rights between two people.  You’re trying to use that, which is what Rothbard tried, to build up an in rem theory.  It cannot be done.


ROBERT WENZEL: Stephan, it can’t be done in your world where you think my knowledge is not scarce and I cannot continue…


STEPHAN KINSELLA: Well, in your world, Bob, I guess…


ROBERT WENZEL: … to keep it scarce by contract.


STEPHAN KINSELLA: In your world, no one else can be named Bob Wenzel, right?


ROBERT WENZEL: Anybody that can go around and steal the information and, therefore, voila.


STEPHAN KINSELLA: Well, what you call stealing most people call learning.  I mean, I guess you came up with Austrian economics on your own.


ROBERT WENZEL: Your framework is based on broken contract.  I have never seen any other construct of any other theory based on—your theory doesn’t even start until a contract is broken.  It doesn’t become unscarce, although I don’t even think it’s unscarce at that point, but in your world, until it gets to party C, D, F, and G.


STEPHAN KINSELLA: My world is very simple.  It’s a libertarian world that we want to avoid conflict.


ROBERT WENZEL: It is not libertarian.


STEPHAN KINSELA: We want to have property rights in scarce resources so that people can use them peacefully and cooperatively and generate prosperity for all.  Now, I assume you tend to agree with that, although the rules you’re supporting would undercut that.  You don’t seem to understand that.  You don’t seem to understand that if someone has the right to—the legal right to veto how I can use my property when I’m using it peacefully and without committing any kind of trespass or contract breach at all, that that’s taking of my property rights.  That’s what you don’t seem to understand.


ROBERT WENZEL: Let me answer you on this point.  You’re basically saying I’m preventing you from doing something on your property with—say you want—let’s say you have a property you want to build a house on.  And you’re saying because I have designed in a certain manner, which I have a copyright on…


STEPHAN KINSELLA: No, you don’t have a copyright on it.


ROBERT WENZEL: What’s that?  Well, I’m saying I do, or a patent, whatever.  It’s written down, or it’s…


STEPHAN KINSELLA: You mean in your ideal world where you have a right to the designs of things?


ROBERT WENZEL: No, no, no.  What would be the legal term if I have designed a way to build a house, a unique way to build a house?  So is that a patent or a copyright if it’s written down?  What is—how would it be determined in current law?


STEPHAN KINSELLA: Well, in current law, if you have a unique, inventive way, a functional practical idea of how to build a house in a more efficient way, that would be protectable by patent.  But if you’re talking about the actual architectural design and layout of the house, that would be something more like copyright.


ROBERT WENZEL: Yeah, so it can be—but—so either way.  So let’s say I have a copyright and a patent on it.  So then you somehow acquire my architectural design.


STEPHAN KINSELLA: What do you mean somehow?  I’m walking down the street.  I see it.  It’s not somehow.


ROBERT WENZEL: No, but it—no, suppose it’s—part of the design has unique functions on the inside where you can’t see from the outside, so you really can’t know how I designed the house.


STEPHAN KINSELLA: Well, how did I get the information?  You’ve got to specify.




STEPHAN KINSELLA: How did I get the information?




STEPHAN KINSELLA: How did I get the information?


ROBERT WENZEL: Well, that’s my point.  See, here’s my point.  You’re saying that I am preventing you from designing a house like mine.




ROBERT WENZEL: Okay.  But under Rothbard’s view…


STEPHAN KINSELLA: You are.  You’re preventing me from using my property as I see fit.  I’m not committing a trespass against you.


ROBERT WENZEL: No, no, no, no, no, no.  The only thing I’m doing is preventing you from somehow stealing the property, stealing the formula.


STEPHAN KINSELLA: Bob, that’s question begging.  You’re calling it stealing.  You can’t call it stealing to prove that it should be classified as stealing.  Do you understand?  That’s question begging.  You’ve got to prove…




STEPHAN KINSELLA: Using information.  How about using information that I have?


ROBERT WENZEL: No, no, no, because you’re question begging then.




ROBERT WENZEL: The point is—let me continue here.  There is no way that I’m going to let the design out.  So there’s no way person B is going to know how to construct the house.


STEPHAN KINSELLA: Why do you say that?  Sometimes you can’t help letting the design out.


ROBERT WENZEL: Well, no.  Well, let’s say this is a case where I bury it in my safe down in the basement.


STEPHAN KINSELLA: That could be.  I’ve already agreed you can keep information secret, but let’s specify something.  You can keep information secret, and that’s fine.  However, if you have a really unique method, first of all, you’re not—first of all, if you patent it, you’re going to reveal it to the world by patenting it, Bob.  You have to reveal it.  So I don’t…


ROBERT WENZEL: Well, no.  That’s under current law.  That’s not under Rothbardian law.


STEPHAN KINSELLA: I don’t think Rothbard would agree that you can get a government-issued patent that you can keep the information secret but still have a property right.  I mean, you already admitted he’s against current…


ROBERT WENZEL: Rothbard wouldn’t require disclosure of patents, but go ahead.  Go ahead.  Continue.


STEPHAN KINSELLA: The whole patent system is—the whole idea is based upon the bargain between the public and the inventor, and the deal is…


ROBERT WENZEL: That’s a public—now we’re talking about the public?


STEPHAN KINSELLA: This is why I’m against this socialist…


ROBERT WENZEL: I thought you’re not bringing utilitarian—I thought you’re not bringing utilitarian perspective on this.  What are you talking about?


STEPHAN KINSELLA: This is why I wouldn’t support—I don’t Rothbard would support it.


ROBERT WENZEL: Support what?


STEPHAN KINSELLA: The modern concept of patents.


ROBERT WENZEL: He doesn’t.


STEPHAN KINSELLA: Yeah, but so my point is if you get a patent—no, just listen.  If you get a patent, the only reason to get a patent is because you want to commercially exploit it.


ROBERT WENZEL: I can’t believe you laughed your ass off when I told you Rothbard would want perpetual copyright and patents.  That’s exactly what’s in the thing.


STEPHAN KINSELLA: Wait, wait.  Now he’s in favor of patents.  I can’t tell…


ROBERT WENZEL: Vicious, vicious, vicious.


STEPHAN KINSELLA: Now he’s in favor of patents now?


ROBERT WENZEL: He’s in favor of patents, not the current patent law.


STEPHAN KINSELLA: Well, what kind of patent is he in favor of?


ROBERT WENZEL: A patent that works along the lines of copyright where it’s independent discovery of ideas.  Stephan, don’t you know what Rothbard even said?


STEPHAN KINSELLA: I know Rothbard didn’t really understand IP law very well.


ROBERT WENZEL: Oh please.  He understands it a hell of a lot better than you do.  It’s remarkable that you’re…


STEPHAN KINSELLA: Hey, Bob.  If you ask any patent or copyright lawyer in the world, even a regular statist one, if you could have a patent system modeled after copyright, they’ll laugh in your face.  It’s like saying the Americans with Disabilities Act is going to be the tax collection system.


ROBERT WENZEL: Rothbard addresses that, and he say most people do not separate copyright and patent.  They see it as different things, and he addresses why that’s a flaw.


STEPHAN KINSELLA: I’m sure Rothbard—by your argument, Rothbard is in favor of a private analogue of the Semi-Conductor Database Protection Act and boat hull designs and moral rights and defamation law.


ROBERT WENZEL: Stephan, you know he’s not.  You know he’s not.


STEPHAN KINSELA: Well, why not?  Well, why not?  Boat hull designs are part of copyright.


ROBERT WENZEL: You don’t understand Rothbard.  You’re posing yourself as some kind of intellectual expert from a libertarian perspective, and you don’t even understand Rothbard’s perspective.  When I tell you Rothbard’s perspective, you try and intimidate me by laughing your ass off when you’ve really got your head stuck up your ass.


STEPHAN KINSELLA: All I know is Rothbard is pro-copyright, pro-patent, anti-patent, anti-copyright.


ROBERT WENZEL: Let’s get to this person next door to me who’s got a lot in lumber.  I am not preventing him from independently building anything he wants including…


STEPHAN KINSELLA: No, no, no, no, no, no, no.  No, but you’re preventing him from learning from you and using what technique you’ve used.  You’re preventing him from that.


ROBERT WENZEL: I have to tell him how I’m building it?


STEPHAN KINSELLA: I didn’t—did I say that?


ROBERT WENZEL: I have to tell him how I built my house?




ROBERT WENZEL: What are you talking—what?




ROBERT WENZEL: Well, how is he going to learn if it’s…


STEPHAN KINSELLA: I don’t know.  You tell me.  I don’t know how he learns.


ROBERT WENZEL: The key to my house is what’s inside the house.


STEPHAN KINSELLA: How did he learn?  I don’t know.  It’s your hypothetical.  How did he learn?  I don’t know how he learned.


ROBERT WENZEL: He isn’t—he can’t.  That’s my point.


STEPHAN KINSELLA: Well, then why do you need a legal way to stop him?  If he can’t learn, then why do you need a legal right to stop him?


ROBERT WENZEL: What’s that?


STEPHAN KINSELLA: If he can’t learn from you, why do you need a legal right to stop him from using information that he has no way of acquiring?  Just keep it secret.  That’s trade secret law.


ROBERT WENZEL: Yeah, but suppose I don’t want to keep it secret.  Suppose it’s a great idea, and I want to sell it.


STEPHAN KINSELLA: Exactly.  That’s my point.  That’s why you would get a patent because you want to commercially exploit it, and you’re going to reveal it to the world.  When you do that, that’s how he’s going to learn.  So you just said how is he going to learn.


ROBERT WENZEL: Well, maybe he’s [indiscernible_02:00:31].  If I sell it to person C, D, and E, and each one of those signs a contract that says do not reveal how it’s done, the person next door to me is not going to do it.  However, that’s not me preventing him from doing it, building his house that way.  All it is, is…




ROBERT WENZEL: … me preventing him from doing it because I have told B, C, and D about it.  All it is, is saying he can build it if he does it independently and discovers the way himself independently.


STEPHAN KINSELLA: It’s very magnanimous of you.  It’s very magnanimous of you…


ROBERT WENZEL: No, no, Stephan, you’re saying…


STEPHAN KINSELLA: It’s magnanimous of you to give people permission to…


ROBERT WENZEL: Your proposition, Stephan, your proposition is that I’m preventing the person from doing that next door to me.


STEPHAN KINSELLA: Your permission—it is my permission.


ROBERT WENZEL: You’re wrong again, Stephan.




ROBERT WENZEL: Stephan, you’re wrong again.


STEPHAN KINSELLA: My position is that you believe in a communist…


ROBERT WENZEL: [indiscernible_02:01:20] building the exact same house.  If he can come up independently and figure out how it’s done, he can do it.


STEPHAN KINSELLA: Bob, you believe in a totalitarian world where people have to live by permission, not by right where, to perform any action with their property, they need to get permission of this network of billions of people who are heirs of ideas that they come up with and [indiscernible_02:01:40].


ROBERT WENZEL: Now, you’re totally distorting it by…


STEPHAN KINSELLA: No, no, no, no, no, it’s not.  It’s the nightmare scenario.


ROBERT WENZEL: My vision is Rothbardian.  First of all, you—in the beginning, you did not want me to bring up communism, dictatorship, fascist charges, and now you’re telling me I live in a totalitarian, my view is totalitarian where I’m going to require people to go through—no.  If I have an idea on my own, I don’t have to go to anyone.


STEPHAN KINSELLA: You said you’re going to magnanimously…


ROBERT WENZEL: I don’t have to go to anyone.


STEPHAN KINSELLA: You’re going to magnanimously allow people to build a house as long as they can show they came up with the idea originally, but no, you can’t have learned anything from anyone because then you’re committing some kind of weird thing.


ROBERT WENZEL: That is not true.  It’s independent discovery.  If you discover it on your own…


STEPHAN KINSELLA: Nothing is independent, Bob.  Nothing is independent.  Everything borrows from the cultural stock of humanity.  We all learn from each other.  You ever heard of competition on the free market?  You see someone doing something to make a profit.  You start doing what they’re doing.  That’s called competition.  Nothing is independent.  Nothing is completely original.  You know this.  All information is incremental.  All knowledge and learning is incremental.


ROBERT WENZEL: Yeah, so it’s not—Stephan, so…


STEPHAN KINSELLA: And it’s a good thing.  It’s not a bad thing.


ROBERT WENZEL: So it’s not the kind of stuff that would be protected under intellectual property.


STEPHAN KINSELLA: Well, what kind of stuff is it?  You don’t have any idea.


ROBERT WENZEL: If something is generally known—what?


STEPHAN KINSELLA: What kind of stuff is it?


ROBERT WENZEL: My formula for getting on Drudge is something that’s protected by intellectual property.  You’re creating situations where it doesn’t apply.


STEPHAN KINSELLA: Question begging, question begging.  You’re saying it’s protected by intellectual property in an argument trying to show that it should be protected by intellectual property.  Look, if you reveal the information—as a practical matter, Bob, let’s be realistic.  If you’re going to start making cookie-cutter subdivisions with all these houses, you’re going to have to train a staff of people to do your technique.  The information is going to be public before you know it.  So I don’t care if you have a contract with a dozen people.


ROBERT WENZEL: But this goes back to my picture of the Mises sign that says private property.  It’s a degree to which you want to enforce and protect your private property.  Mises could…


STEPHAN KINSELLA: But we already agreed that that building is private property.


ROBERT WENZEL: And in addition to having a private property sign, they could put a gate up.  They could put armed guards.  They could call Hell’s Angels to guard the thing.  Every person…


STEPHAN KINSELLA: You’re question begging yet again.


ROBERT WENZEL: … on any kind of property, whether it’s private property, physical property, or intellectual property can choose to what degree…


STEPHAN KINSELLA: So that’s your argument.


ROBERT WENZEL: … they want to actually protect that property.


STEPHAN KINSELLA: Your argument is if you can call it IP, if you can call it property, it’s property, any kind of property you can think of.


ROBERT WENZEL: [indiscernible_02:04:01] with protecting property.  So basically, if you have a situation where you’re building houses, you realize that that information may get out some way.  And you have to determine to which degree you’re going to try and protect against that.  Are you going to go all out, put a gate, Hell’s Angels, and everything else to protect a piece of private property or intellectual property or anything else?  Probably not.  It depends upon the [indiscernible_02:04:30].


STEPHAN KINSELLA: So the upshot of all this is you’ve thought about it for years, and you have no argument except you kind of think Rothbard—one interpretation of Rothbard was right.


ROBERT WENZEL: Well, I kind of think—listen, smartass, my view is that ideas are not superabundant, that you quoted Hoppe without understanding what he meant by that, that ideas are scarce in many, many cases.


STEPHAN KINSELLA: Oh, this is painful.  Oh, it’s so agonizing.


ROBERT WENZEL: Well, it may be painful.  Tell me what my idea is about the Drudge formula.


STEPHAN KINSELLA: No, the point is you don’t even know how to argue.  You have no point.  You’re repeating yourself.  You basically act like you’ve got this momentous idea.


ROBERT WENZEL: Stephan, Stephan, Stephan.


STEPHAN KINSELLA: All you’re doing is repeating…


ROBERT WENZEL: You’re laughing again just like you did when I proposed that Rothbard said he was in favor of perpetual copyright, which he is.




ROBERT WENZEL: You’re laughing again, just a typical…


STEPHAN KINSELLA: Maybe patents, maybe copyrights, but not boat hull designs.


ROBERT WENZEL: Intimidation tactics that may win over one of your clueless followers, but it’s not going to fool anybody else.  The point of the matter is that my Drudge formula is something that I have.  It’s scarce.  If I sell it to B, C, and D, it will continue to be scarce…


STEPHAN KINSELLA: Well, you know what, Bob?  In my world, tough shit because people are going to compete with you, and there’s not a goddamn thing you can do about it.  So you can sit there and come up with a new idea, or you can find a way to compete and lower your prices.  But you can sit there and fume and complain all you want, but in my world, there’s going to be competition and free markets, and even people who, like you, don’t like it, you can’t go to any government to get protection from competition.  Sorry.  If you want to reveal information to the public as the price of having to be able to sell it, then, hey, people are going to learn from and compete from you.  It’s a very simple idea.  This is the Misesian/Rothbardian/free market idea.


ROBERT WENZEL: Again, you’re distorting the idea of selling something with how I want to protect what I have.


STEPHAN KINSELLA: If you read Rothbard’s title-transfer theory of contract, you’ll understand that you’re making a mistake with your selling idea.


ROBERT WENZEL: You don’t understand Rothbard.  It’s clear right from the beginning.  You don’t understand it.  You attack with articles that you don’t understand.  Stephan, it’s a disaster.


STEPHAN KINSELLA: Yeah, I know.  You’ve totally destroyed and trounced me, Bob.


ROBERT WENZEL: You basically prove…


STEPHAN KINSELLA: You’ve proved there should be IP.  I know.  It’s great.  I know.


ROBERT WENZEL: You basically have a formula and a framework that doesn’t even kick in until a contract is broken.  You should be ashamed of yourself with such a theory.  When property is respected, whether it’s intellectual or private, there is no problem.  And then you move on to this bizarre situation.  It’s like, well, as long as C gets it, it’s going to get out everywhere.  That’s your theory.  So that doesn’t happen until a contract is broken, and then you assume it becomes superabundant, although I really won’t even give you that.  But that’s your argument.  It’s a disgrace.  It’s a disaster and…


STEPHAN KINSELLA: I think you should read…


ROBERT WENZEL: I think it’s a good time to end.


STEPHAN KINSELLA: Konkin had this figured out years ago.  Konkin saw the nightmare world that your Galambosian kind of Spoonerist insane IP ideas would create.


ROBERT WENZEL: It’s not Galambosian.  I mean, Stephan, you’re—Galambosian’s theory is not my theory.  He had no theory with regard to independent discovery.  Do you even understand Galambos, Galambos’ theory?  Laugh again because you’re wrong again.




ROBERT WENZEL: Every time you’re wrong, you laugh, so it’s a real tell.  You must be a bad poker player.


STEPHAN KINSELLA: Spooner and Galambos…


ROBERT WENZEL: Because your tell is so obvious.  Your tell is so obvious.


STEPHAN KINSELLA: No, they believe that…


ROBERT WENZEL: Let me put it out there.  When Kinsella’s laughing, he’s caught in another one by the balls.  Galambos has no room in his theory for independent discovery.  I am not Galambosian at all.  It’s another distortion of yours, either that or you don’t understand Galambos.


STEPHAN KINSELLA: So you’re Galambosian plus the independent discovery exception.  So you’re like Galambos prime.  Okay, fine.  But you both believe in a very open-ended definition of IP and in perpetual…


ROBERT WENZEL: Hold it.  Hold it.  I lost—where did you see this Galambosian independent discovery?  Where did you see that, Stephan?  You throwing more shit out?  Where did you see that?  Tell me where you’ve seen that where I can look that up.


STEPHAN KINSELLA: I said you’re saying you’re like Galambos with one exception, with one difference.


ROBERT WENZEL: I didn’t say I was like Galambos with one—don’t distort.  I said I am not Galambosian, and the most clear point where I’m not Galambosian is with regard to independent discovery.  Galambosian does not have that in his theory.


STEPHAN KINSELLA: You both believe in a wide array of IP rights that would last in perpetuity.  So did Spooner, I believe.  So…


ROBERT WENZEL: But that doesn’t go to the main point that you’re distorting my…


STEPHAN KINSELLA: That is the main point.


ROBERT WENZEL: … view with Galambosian.  No, it’s not.  My view is not Galambosian.


STEPHAN KINSELLA: I think your ideas are as insane as Galambos’ and Spooner’s.  I think they would lead to the death of all humankind honestly if they were really followed.  But, of course, people…


ROBERT WENZEL: Hold it.  You think copyright and patent would lead to the death of mankind?


STEPHAN KINSELLA: Yeah.  I think if you enforced it strictly.


ROBERT WENZEL: Hold it.  You think copyright and patent would lead to the death of mankind.


STEPHAN KINSELLA: I think your IP ideas, enforced broadly, yes.


ROBERT WENZEL: No, no, no, no, no, no.  How—my ideas, which are less strict that current patent ideas…


STEPHAN KINSELLA: No, they’re not.  No, they’re not.  No, they’re not.  Yours last in perpetuity.


ROBERT WENZEL: Yeah, but what does that have to do with what I’m…


STEPHAN KINSELLA: That means that you couldn’t use a goddamn wheel right now, dude.


ROBERT WENZEL: How is it going to lead to the death of mankind?


STEPHAN KINSELLA: You couldn’t build a log cabin.  You couldn’t…


ROBERT WENZEL: How is it going to lead to the death of mankind?


STEPHAN KINSELLA: Because you’d have to get permission from everyone on the Earth to do anything.  You couldn’t cook food.


ROBERT WENZEL: No, it wouldn’t.  You have independent discovery.


STEPHAN KINSELLA: You can’t have independent discovery once the invention is publicly known.


ROBERT WENZEL: If it’s publicly known, it’s in the public.  That is superabundant.


STEPHAN KINSELLA: Oh, now you have a public domain exception too?  I mean, I can’t tell what you’re in favor of.


ROBERT WENZEL: No.  No, we’re using the English language, aren’t we?  Are we not?




ROBERT WENZEL: Does anybody have a patent on the English language?  That is superabundant.


STEPHAN KINSELLA: Why not?  Why shouldn’t someone have a patent on it or on the Constitution for that matter?  I mean, what about Austrian economics?  How dare you use ideas you haven’t paid for.


ROBERT WENZEL: What are you talking about?


STEPHAN KINSELLA: You’re using Austrian economics in your reasoning.  You learned that from someone else.


ROBERT WENZEL: Hold it.  Hold it.  Hold it.  Let’s get back to the English language.


STEPHAN KINSELLA: In fact, you make money off your blog, right?


ROBERT WENZEL: What?  See, that’s Galambosian.  See, that’s Galambosian.  Galambosian says every word is invented, and you can’t use it in the future, okay?  There is no question that there are words, ideas, and things out there in the public domain.  There is no question.




ROBERT WENZEL: But that—well, like the English language.




ROBERT WENZEL: Like air.  That is superabundant.  That’s why we’re not even discussing topics like that.


STEPHAN KINSELLA: So you’re telling me—wait, so are you telling me that if you reveal your house-building technique to a dozen people by contract, and for somehow, one of them nefariously leaks it onto Wikileaks in an encrypted file, you don’t know which one of them did it.  But soon, there’s copies of this, billions of copies and computers all over the world.  At that point in time, are you saying that all the people in the world are free to use the information because now it’s superabundant and now it’s a public good.  Is that what you’re saying, or a public—it’s public domain?


ROBERT WENZEL: See, again, that’s my point.  Your whole framework…


STEPHAN KINSELLA: I’m asking you.


ROBERT WENZEL: Is built on—and I’m telling you.


STEPHAN KINSELLA: Well, what’s the answer?


ROBERT WENZEL: Your whole—I’m about to explain that to you, okay?  Your whole framework is built upon a broken contract.


STEPHAN KINSELLA: Well, what’s the answer to the question?


ROBERT WENZEL: Without a broken contract.


STEPHAN KINSELLA: Once the information becomes public, can people use it or not?


ROBERT WENZEL: Let me continue.  Without a broken contract, you have no theory.




ROBERT WENZEL: Your theory doesn’t apply until somehow…


STEPHAN KINSELLA: That’s not true.  No, that’s not true.


ROBERT WENZEL: The thing is not only broken but becomes broken in a superabundant manner.


STEPHAN KINSELLA: Okay, but first all, that’s not—the other argument is that your contract idea is ridiculous.  No one would enter into these contracts, dude.  No one would agree to this contract in the first place.  The entire idea is totally [indiscernible_02:12:37].


ROBERT WENZEL: No one would agree to what contract?


STEPHAN KINSELLA: To keep the information secret and never use it.


ROBERT WENZEL: And never use it?  Who said something about not using the information?  What are you talking about?


STEPHAN KINSELLA: Your contract is going to limit what they can do with the information they learned from you.


ROBERT WENZEL: That happens all the time.


STEPHAN KINSELLA: Yeah, it happens because there’s copyright.  People can be bullied into this kind of crap.


ROBERT WENZEL: No, no.  How about Watergate [indiscernible_02:12:58].  There are people that take information to Woodward and Bernstein.


STEPHAN KINSELLA: Yeah, and now it’s out.


ROBERT WENZEL: All kinds of—yeah.  So the point is—so…


STEPHAN KINSELLA: So it’s public.




STEPHAN KINSELLA: It’s public.  It gets out.


ROBERT WENZEL: Yeah, but at the point where somebody has the information, it’s private information.  And there may have been many, many reporters trying to get at it.  There’s another kind of rivalry and…


STEPHAN KINSELLA: That’s rivalry?


ROBERT WENZEL: … people try to dig up the information.


STEPHAN KINSELLA: You have a flexible use of the word rivalry.  Competitors are rivals.  I guess if I want your girlfriend, that’s a rival.  We’re both rivals for the same girl.  I guess if I steal your girlfriend, I violated your property rights.


ROBERT WENZEL: Yeah.  You’re going into smartass mode again.


STEPHAN KINSELLA: Yeah, because you won’t be clear.  I gave you at the beginning—I told you to define your terms.  You won’t do it.


ROBERT WENZEL: [indiscernible_02:13:43].  There’s rivalry between different news information—news sources.


STEPHAN KINSELLA: Yeah, they’re competitors.


ROBERT WENZEL: Organizations to get information.  It’s a rivalry.  It is searching for scarce information.


STEPHAN KINSELLA: So we need property rights to stop this rivalry.  It’s horrible.  We don’t want people rivaling against each other.


ROBERT WENZEL: No.  There is no problem there with people trying to attempt to search out information.  You’re totally distorting the situation.


STEPHAN KINSELLA: So you didn’t answer the question.  Can people use the information about your house-building technique once it becomes public?


ROBERT WENZEL: Here’s the way this works, okay?  You’re creating a strawman.  If I have a…


STEPHAN KINSELLA: It’s not a strawman.  This is how the world works, dude.  Look at Wikileaks right now.  You can find the formula for Coca-Cola right now.  It’s online.


ROBERT WENZEL: Let me explain it to you, okay?  First of all…


STEPHAN KINSELLA: It’s just a simple yes or no.


ROBERT WENZEL: Your framework doesn’t work until a contract is broken.


STEPHAN KINSELLA: That’s not true.  Maybe a contract won’t be entered into.


ROBERT WENZEL: Why are you always bringing up these situations where the contract is broken?


STEPHAN KINSELLA: Because you’re the one who’s building your whole theory on contract, and I’m showing that it won’t work.  You can’t bind third parties with your contract.


ROBERT WENZEL: If I have a contract, if I have something that I consider extremely, extremely valuable, I am not going to release that to anyone unless I construct a contract where the person that releases it is not prevented or does not have to pay a severe penalty if he releases it to an outside party.


STEPHAN KINSELLA: This is why I think that the contracts are not feasible.  People are not going to agree to pay severe penalties as a regular matter.


ROBERT WENZEL: They do that all the time.


STEPHAN KINSELLA: They do because there’s a threat of copyright anyway.  It doesn’t add anything extra, but without copyright, people—look.  Imagine I’m J.K. Rowling, and I have the next Harry Potter book.  And I’m selling a copy on Amazon for $15 or whatever, and I say if you buy this book, you have to agree that if you ever make a copy of it or ever loan it to a friend, then I can sue you for a million dollars.  Now, what idiot is going to buy the book and be willing to pay…


ROBERT WENZEL: Exactly, exactly.


STEPHAN KINSELLA: No one, Bob.  No one will sign these stupid contracts.


ROBERT WENZEL: Exactly, exactly, Stephan.  So the contract be written that way.  You’re creating another strawman.


STEPHAN KINSELLA: That’s right.  They won’t be written.  Your contracts are not realistic.


ROBERT WENZEL: You create absurd strawmen.


STEPHAN KINSELLA: It’s not absurd, Bob.


ROBERT WENZEL: No one is going to—the contract is not going to be designed that way.  Stephan, it’s totally idiotic.


STEPHAN KINSELLA: Wait, wait, wait, wait, wait, wait.  How is it going to be designed then?


ROBERT WENZEL: Who knows?  Let the free market decide.  Why should you decide?


STEPHAN KINSELLA: So in other words you think maybe you could have contracts that could have something like IP, but what would the contracts look like?  Who knows?  What would IP look like?  Who knows?  But I’m still in favor of it.


ROBERT WENZEL: Stephan, that’s how the free market works.


STEPHAN KINSELLA: So what you’re saying is whatever contract people come up with to [indiscernible_02:16:37] information…


ROBERT WENZEL: Now you’re attacking the way free market works.  The free market allows anybody to design any contract any kind of way they want.  Are you against that?  Are you against, that Stephan?


STEPHAN KINSELLA: You’re such an idiot, dude.  And you seriously believe this stuff.


ROBERT WENZEL: Yeah right.  Look, you don’t understand Rothbard.  You make terrible accusations against utilitarians when you don’t even understand the paper they’ve written.


STEPHAN KINSELLA: Are you utilitarian now?  I thought you didn’t like utilitarians either.


ROBERT WENZEL: I told you I’m not a utilitarian, that the only problem I have is the way you attack those guys.


STEPHAN KINSELLA: This idiotic quote “problem” unquote.


ROBERT WENZEL: And you didn’t understand the paper.  You’re all over the place.  You don’t understand this stuff.  You create absurd…


STEPHAN KINSELLA: Let someone listen to this interview, and they think I’m all over the place.


ROBERT WENZEL: Here we go with the laugh again.


STEPHAN KINSELLA: Because you’re insane.  I think you really have a mental problem.  I mean, you’re insane.  You really are insane.  Do you really live in this dream world, or are you just trying to get—is this for sensationalism?


ROBERT WENZEL: A dream—hold on.  Let me get this straight.  I have a formula for Drudge, which I think is scarce, and you somehow think it’s superabundant.


STEPHAN KINSELLA: I think it’s actually—I think it’s actually made up in your own mind.  I don’t think you even have a formula for Drudge.


ROBERT WENZEL: Well, hey, I can—we can ask Christopher Seedy, the producer of this show because he knows part of it.  I have a formula.  So you’re laughing again, and again you’re wrong.  Stephan…


STEPHAN KINSELLA: Buy nickels.  Hey, buy nickels, Bob.


ROBERT WENZEL: What’s that?


STEPHAN KINSELLA: Buy nickels.  You gave away that information for free.  Buy nickels.


ROBERT WENZEL: What’s wrong with that?


STEPHAN KINSELLA: Another formula.  You got all these formulas.


ROBERT WENZEL: I don’t even know what your point is there.  That’s just totally bizarre, Stephan, along with your worm, clown, weasel comments.  Your predictions are terrible that I wasn’t going to be here, that I wasn’t eager to expose you with all this stuff.


STEPHAN KINSELLA: Stephan was wrong about Wenzel debating, so IP must be justified.


ROBERT WENZEL: No.  The point is that you create things in your mind that just aren’t really the case from whether I would debate you, and certainly we’re going on over two hours now.


STEPHAN KINSELLA: Yeah.  It’s time to wrap it up.


ROBERT WENZEL: So you’re wrong about that.  You’re not a clear thinker.  Your book—and I’ve only gone through about four things, unfortunately, of the many, many sloppy things you have in the book.  It’s a terrible book, terrible book, and you’re just wrong.  You don’t understand Rothbard, and you don’t understand scarcity.


STEPHAN KINSELLA: I don’t understand IP either.  I don’t know IP either.


ROBERT WENZEL: You have a foggy, confused…


STEPHAN KINSELLA: Or Hoppe.  I don’t know Hoppe or Mises that well, praxeology, Rothbard, contract theory.  I don’t know that you should have a property right in your girlfriend and be protected from competition, and I don’t know that it’s crazy to think that someone would agree to pay a million dollars’ damages for using information they paid for.


ROBERT WENZEL: See, again, you’re creating strawmen.  You create these strawmen as to how a contract would occur, how it would be enforced, to what degree it would be enforced, and what would happen if the contract is broken.  You get to the bizarre point that a contract will be broken and then become superabundant when that may not be the case at all.


STEPHAN KINSELLA: So I think we need to wrap it up.  Let me just add a couple concluding remarks.  You can say whatever you like, but I will say that congratulations in a way because we’re living partly in the world that you want, the nightmare world where literally hundreds of billions of dollars are wasted on patent lawsuits and innovation, intimidation tactics, extortion, literal extortion.  Oligopolies are created.  Competition is reduced.  Innovation is distorted and reduced.  The government is using copyright to censor, to threaten, to ratchet up the police state, and to control the internet.


People are going to jail for downloading copies of movies.  So congratulations.  You’ve kind of got part of the world that your nightmare scenario vision of IP would lead to, a completely fascist, anti-property rights world.  And I hope to God we will never get it extended any farther than it is, but congratulations.  You’ve kind of got part of what you want with the modern copyright and IP system.  But thank God real libertarians and Austrians almost universally recognize the horrible, fascist police state, anti-competitive, anti-human life thing that IP is and are moving against it.  And maybe someday that will help influence the policy and keep it from getting any worse, no thanks to the efforts of people like you to muddy the waters and to justify the police state actions we have now.


ROBERT WENZEL: Well, Stephan, it’s really interesting.  You can’t even keep your argument straight from the beginning of your opening remarks to the end here because what you’ve done is you’ve attacked me as being totalitarian, fascist, clearly things that you stated in the opening remarks that you didn’t want to happen—you didn’t want me to say.


Secondly, you’ve got a distortion with regard to putting me in the same camp as current government views.  Again, that is not the case.  My case is the Rothbardian case.  It’s not the current government message in which copyright and patent is used.  It’s Rothbard.  It’s copyright, perpetual copyright.  It is copyright that allows for independent discovery, and the same thing with patents.  It’s perpetual patent that allows for independent discovery.  There is no government that instills laws or penalties.  It’s all done by private contract, so no one would buy a record where the penalty would be many, many years in jail if they share that with someone somehow against the desires of the music industry.  So again, it’s another distortion of how the—you’re attempting to view the Rothbardian message that you don’t understand because you clearly don’t understand the book.




ROBERT WENZEL: I rest my case.


STEPHAN KINSELLA: All right.  Well, thanks, Bob.




  1. See, e.g., Kinsella, “Law and Intellectual Property in a Stateless Society,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), Part III.A. []
  2. See C4SIF posts under “patents kill“; also “SOPA is the Symptom, Copyright is the Disease: The SOPA Wakeup Call to Abolish Copyright”; “Masnick on the Horrible PROTECT IP Act: The Coming IPolice State”; “Patent vs. Copyright: Which is Worse?” []
  3. See littany of evil state policies mentioned at KOL420 | There Ain’t No Intellectual Property: The Personal Story of a Discovery (PFS 2023). []
  4. See Kinsella, “Law and Intellectual Property in a Stateless Society,” in Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), Part III.D. []
  5. See ; Kinsella “What Libertarianism Is,” in Legal Foundations of a Free Society, p. 33; also “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” in Legal Foundations of a Free Society, Part III; idem, “On Conflictability and Conflictable Resources.” []
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