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Kinsella on Liberty Podcast, Episode 450.

My discussion/interview by Matthew Sands of the Nations of Sanity project as part of his “Together Strong” debate series.

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From a facebook post by David Veksler:

There is no such thing as “intrinsic value” in economics. Value exists only in the eyes of the beholder. The concept of “value” is made possible by being valuable to a specific person, for a particular purpose. The only thing in the universe that is intrinsically valuable is human beings.

TLDR: Stop with nonsense like “Bitcoin has no intrinsic value”

My comment (lightly edited here):

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My latest article: Stephan Kinsella, “Decouple Trade and IP Protection,” Brownstone Institute (Dec. 4, 2024; perma).

Related:

• Trump’s Proclamation World Intellectual Property Day, 2025: Of course these geniuses just repeat the same nonsense about IP being “the same as” property and how infringing IP is “theft” of course they are insinuating China “steals American IP,” all of which are confused bullshit lies and distortions. See The Structural Unity of Real and Intellectual Property; Copying, Patent Infringement, Copyright Infringement are not “Theft”, Stealing, Piracy, Plagiarism, Knocking Off, Ripping Off; KOL460 | Rant about the “China is Stealing Our IP” Myth
  • This Proclamation also explicitly admits that it is using tariffs and other trade negotiations to engage in IP imperialism: “Through the strategic use of tariffs, we are recentering our trade policy and securing stronger intellectual property protections in new and existing trade deals.”
• The China Stealing IP Myth
• “Patents, Pharma, Government: The Unholy Alliance,” Brownstone Institute (April 1, 2024)
• “Free-trade” pacts export U.S. copyright controls
• Patents and Pharmaceuticals;
• Kinsella, “FDA and Patent Reform: A Modest Proposal” (May 5, 2023)
  • “Are Patents Needed to Make Up for FDA Kneecapping?” (July 2, 2011)
• Tabarrok’s Launching the Innovation Renaissance: Statism, not renaissance: “in the same discussion Tabarrok mentions positively how the US twisted the arm of Australia in 2005 when negotiating a “free trade” agreement to expand its IP protection for pharma patents and also extended its copyright term from life of the author plus 50 years to life plus 70, to match the insane US term. Free trade agreements have nothing to do with local property rights; that is the province of bilateral investment treaties, which are usually negotiated between a developed country and a developing country. So here we have so-called IP reformer who says IP protection is too strong but he gets the term of patents wrong, and things they should be extended, and favors US IP imperialism to force other countries to extend their own copyright terms.”

Decouple Trade and IP Protection

By Stephan Kinsella
December 4, 2024
Government, Policy, Society 9 minute read
Brownstone Institute (Dec. 4, 2024; perma)

Many of us who support free trade and private property rights tend to look favorably on regional and bilateral treaties that claim to further these goals. There is a vast network of bilateral investment treaties, or BITs, for example, designed to promote foreign direct investment by Western firms into developing nations by limiting the host state’s ability to expropriate the investments.

These BITs aim to strengthen the property rights of international investors in the host state so as to make investment less risky. There are more than 2,500 BITs in force worldwide; the US itself currently has BITs in place with 39 countries. BITs and other measures can benefit both host states and international investors by strengthening local property rights, as I explain in International Investment, Political Risk, and Dispute Resolution.

In addition to investment treaties that concern the property rights of foreign investors in host countries, there is also a global network of bilateral and multilateral free trade agreements ostensibly aimed at promoting trade between nations. Many of us favored so-called free trade agreements like NAFTA even if we would have preferred more radical approaches. Regional, multilateral, and bilateral trade agreements are viewed as incremental improvements even if thousands of pages of regulations could be easily replaced by a couple of sentences or, better, unilateral abolition of import tariffs.

But over time it has become apparent that “free trade” agreements often serve as a pretext for exporting Western intellectual property (IP) law—mainly US-style patent and copyright law—onto the rest of the world. This is what I call IP imperialism. Here’s how it works. First, we are told that intellectual property rights are legitimate, and in fact are part of the reason for the relative success of the industrialized countries in the West. (It’s not. For more on this, see You Can’t Own Ideas: Essays on Intellectual Property.)

Next, developing countries are chided for not having strong IP law enforcement. They are even accused of “stealing” know-how and technology from Western capitalist firms as if there is something wrong with manufacturers in a developing country using the most efficient known production techniques.

Finally, the West, primarily the US, uses its leverage to pressure developing nations to adopt and strengthen IP protections and adopt international IP treaties, primarily for the benefit of US corporate interests, namely pharmaceuticals (patent) and Hollywood and music (copyright). This has led to various IP treaties on copyright, patent, trademark, and so on, which most states and the world are party to (including China, Russia, North Korea, and so on) and which require member states to protect IP in their national legislation. And there is continual agitation by the Western powers to add even more IP protections and to pressure other countries to adopt them.

In addition to international IP treaties, the US and other countries pressure developing countries to strengthen local IP protection by including IP provisions in multilateral, regional, and bilateral free trade agreements. The US does not deny this; it admits it. As stated by the United States Trade Representative:

“USTR’s Innovation and Intellectual Property (IIP) uses a wide range of bilateral and multilateral trade tools to promote strong intellectual property laws and effective enforcement worldwide, reflecting the importance of intellectual property and innovation to the future growth of the U.S. economy. … Key areas of work include: … the negotiation, implementation, and monitoring of intellectual property provisions of trade agreements … ”

But the ostensible purpose of a free trade agreement is simply to lower tariffs and barriers to international trade. Such an agreement really should have nothing to do with the property rights in force in the other country (unlike BITs, which do concern the protection of property rights of foreign investors in the host country). Notice that free trade agreements never dictate to the developing country that they must respect their citizens’ property rights, not engage in eminent domain, not engage in confiscatory taxation, and so on. So then why do these “free trade” agreements require IP rights to be protected in the developing country?

In any case, this is what the US and other countries do. Their free trade agreements invariably contain a section requiring developing nations to strengthen their local IP law. For example the agreement may require the other state to increase its copyright term even beyond what is required by the IP treaties.

As an example, the Trans-Pacific Partnership was being negotiated for years between the US and various Pacific Rim economies, until it was scuttled after Donald Trump won the US Presidency in 2016. Of course, although this supposed free trade agreement has nothing to do with the local property rights of member states, it naturally included an entire chapterrequiring member states to ratchet up their local IP protections.

The Berne Convention on copyright requires member states to protect copyright for at least 50 years after the author’s death (for perspective, copyright used to last for only 14 or 28 years); in the US, copyright protection now lasts for 70 years after the death of the author. The TPP proposed to require member states to follow suit. During negotiation of the TPP, Canada considered strengthening its copyright law. Finally, in 2022, as a result of terms in the United States–Mexico–Canada Agreement, which replaced NAFTA, Canada got on board and finally extended its copyright term to 70 years after death. In 2018, as a result of the TPP negotiations, Japan also extended its copyright term for some works.

This kind of pressure works, even on other advanced economies not as beholden to IP special interests as the US government is. And developing nations of course grudgingly go along as well. They sometimes complain, even if those complaining accept the legitimacy of IP but merely want more “balance” or “flexibility.” See, for example, a paper by Anselm Kamperman Sanders, “The Development Agenda for Intellectual Property: Rational Humane Policy or ‘Modern-day Communism’?,” in Intellectual Property and Free Trade Agreements (pdf), which notes:

More in particular, the mounting pressure from developing nations to view intellectual property not just as a means to guarantee the interests of rightholders, but also to bring about economic development and welfare for the whole of global society.

…In the fall of 2004 Argentina and Brazil submitted a formal proposal to the WIPO relating to the establishment of a new development agenda within WIPO The proposal addresses the ‘knowledge gap’ and ‘digital divide’ that separates wealthy nations from developing nations and calls for a case-by-case assessment of the role of intellectual property and its impact on development.

Whereas in the previous years the prevailing trend has been to harmonise international legal norms through the World Trade Organisation’s (WTO) Agreement on Trade Related Aspects of Intellectual Property (TRIPS Agreement), there is now a clear call for increased flexibility.
…these provisions place the protection of intellectual property rights in the context of a balance of rights and obligations of producers and users of technical knowledge.

…these provisions recognise that WTO Members are entitled to a certain degree of flexibility when it comes to the protection of public health and nutrition, and the promotion of public interest in sectors of vital importance to their socio-economic and technological development. (pp. 3–4)

In other words, the WTO is supposed to protect IP but balance the harms that strict, Western-style IP enforcement puts on developing countries, by giving them flexibility, such as the ability to issue compulsory licenses (which blunt the harshness of patents),¹ access to technology transfers, etc.
However,

the Western world is undermining the Development Agenda by introducing so-called TRIPS-plus obligations through the WTO system and bilateral Free Trade Agreements (FTAs) and Bilateral Investment Treaties (BITs).

…The Development Agenda is about finding flexibility in the implementation of TRIPS obligations but also about balancing the monopoly of the intellectual property rights holder with the interests of third parties and of society as a whole. Flexibility is, however, something that sits uneasy with the current trend in intellectual property policy. This trend has been one of maximizing rights to stamp out piracy and one of harmonization to provide a one-size fits all level playing field of rights. (p. 4–5)

No surprise. Sanders then quotes Bill Gates, who “In a recent interview … even went so far as to say that restricting intellectual property rights is tantamount to communism.” As Gates said:

Q. In recent years, there’s been a lot of people clamouring to reform and restrict intellectual-property rights. What’s driving this, and do you think intellectual-property laws need to be reformed?

No, I’d say that of the world’s economies, there’s more that believe in intellectual property today than ever. There are fewer communists in the world today than there were. There are some new modern-day sort of communists who want to get rid of the incentive for musicians and moviemakers and software makers under various guises. They don’t think that those incentives should exist.

And this debate will always be there. I’d be the first to say that the patent system can always be tuned—including the US patent system. There are some goals to cap some reform elements. But the idea that the United States has led in creating companies, creating jobs, because we’ve had the best intellectual-property system—there’s no doubt about that in my mind, and when people say they want to be the most competitive economy, they’ve got to have the incentive system. Intellectual property is the incentive system for the products of the future.

It’s a shame that Sanders and others can only dimly see the real problem: that IP law is unjust. Even those who sense something is wrong with the provisions foisted on developing countries by bilateral and multilateral trade agreements (see, e.g., www.bilaterals.org) criticize the wrong things about free trade agreements. It’s not the free trade part that is the problem. But they all sense something is unfair.

In any case, Gates’s comments are ironic on many levels. First, he used to understand that patents impede innovation. As he said back in 1991, “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” But now Microsoft is just a huge rent-seeking IP bully.
Second, his underlying assumption is that patents are pro-West, part of capitalism, and that socialism is opposed to patents. This is not true either. Most countries, including socialist ones, have IP law, even if the “capitalist” West keeps pushing them to strengthen IP protections.

This should not be a surprise since IP is inherently statist, an artificial manufacturing of pseudo Rights even as it systematically violates property rights. IP rights are not part of capitalism; it is one of modern “capitalism’s” socialistic aberrations. The West should not foist its destructive IP laws onto developing countries and certainly should not link it to free trade.
Published under a Creative Commons Attribution 4.0 International License

For reprints, please set the canonical link back to the original Brownstone Institute Article and Author.

Author
Stephan Kinsella

Stephan Kinsella is a writer and patent attorney in Houston. Formerly a partner in the Intellectual Property Department with Duane Morris, LLP, General Counsel and VP-Intellectual Property for Applied Optoelectronics, Inc., his publications include Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023), Against Intellectual Property (Auburn, Ala.: Mises Institute, 2008), You Can’t Own Ideas: Essays on Intellectual Property (Papinian Press, 2023), The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023), Trademark Practice and Forms (Thomson Reuters, 2001–2013); and International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide, 2nd ed. (Oxford University Press, 2020).

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1.  For more on compulsory licensing, see Hickey, Kevin J.; Ward, Erin H., “The Role of Patents and Regulatory Exclusivities in Drug Pricing” (01/30/2024). [↩]

I sent this recently to the CEO and President of the Houston Symphony, regarding its 2030 Strategic Plan (pdf), which aims to “establish the Houston Symphony as a world-class orchestra.” Pillar 1 of the 2030 Strategic Plan includes the following goal/initiative:

Regularly engage in touring and recording projects:

To establish ourselves as a world-class orchestra, we need to increase our visibility beyond Houston through touring and recording. A comparison with other major U.S. orchestras shows that most orchestras have returned to some touring over the past two years, while Houston has not toured. Additionally, the orchestra has released only three albums in the last five years. To address this, we will prioritize periodic international touring and focus on building our recording identity with unique commissions and performances that showcase Houston’s distinct character. Touring and recording projects are critical for the orchestra’s artistic development, for making our artistry more broadly accessible, and for cementing our reputation as a world-class orchestra.

My letter is below. The copyright mindset runs deep, so it is unlikely this advice will be heeded. Still, I thought it worth a shot.

Update: Jeff Tucker informs me of something I was not aware of in the music industry. Apparently there are modern editions or arrangements or “engravings” of classical, public domain works which the publishers claim copyright in, and modern orchestras usually use the more recent engravings when they record or perform. If this is right, then to be able to release a recording of a classic work into the commons the orchestra might want to use the original score or a later public domain engraving. Still, I see no reason it could not be done.
[continue reading…]

In a recent tweet I bemoaned that even many people skeptical of IP still favor it and oppose abolition, and I glancingly mentioned tech journalist Glyn Moody (I have cited him positively many times for his work critical of IP; see his techdirt posts). He replied and said he is actually for IP abolition, and pointed me to his book, Walled Culture, which is also free online and CC0!

The book may not explicitly be anticopyright but the vibe is there. He writes (last few pages of the last chapter): [continue reading…]

I’ve long noted how the West, primarily the US, uses its leverage to pressure developing nations to adopt and strengthen intellectual property (IP) protections and adopt international IP treaties, primarily for benefit US corporate interests, namely pharmaceuticals (patent) and Hollywood and music (copyright). This is a form of what I call IP imperialism. It is often done by insisting on local IP protection even in agreements that have nothing to do with the local property law of developing nations, namely bilateral and multilateral free trade agreements.¹ The purpose of a free trade agreement is simply to lower tariffs and barriers to international trade, but the US and other western powers usually insist on developing nations strengthening local IP law even though this has nothing to do with trade but instead is a matter of local property rights.² [continue reading…]

1. I discuss bilateral and multilateral investment and trade agreements in detail in my book International Investment, Political Risk, and Dispute Resolution, 2d ed. (Oxford, 2020). [↩]
2. See various posts on IP imperialism here. [↩]

I just came across this talk by Brian Gladish, “Andrew J., Galambos’s Ideas and the Future of Private Protection for Intellectual Property” from the 2012 Austrian Scholars Conference. Jesus, what insipid nonsense. Why the hell this would be welcome at the ASC is beyond me. Totally incoherent, crankish shit. Statist, illiberal. Galambos is worthless. It is good he is so insane on IP that he has persuaded his idiotic, cultish followers to agree not to spread his wrong-headed ideas.

Gladish’s fumbling mutterings here are embarrassing and have no place at the ASC, at the institute which previously awarded me the O.P. Alford III Prize for Against Intellectual Property.

Gladish says Galambos makes a good case for Paine being the author of the Declaration of Independence. No. He does not. He was a total crank and loon, on IP as well as this insane theory. See Galambos on Paine. Here (Why Objectivists Hate Anarchy (Hint: IP)), Gladish whines that we are piling on Galambos. He should be piled on. He is one of the worst thinkers I have ever come across. He is worthless. At least Gladish had the sense not to mention retard Galambos in his more recent Mises.org article.

William C. Robinson, The Law of Patents for Useful Inventions, vol. 1 (Boston: Little, Brown, and Co., 1890) (Amazon; google books; HathiTrust), §24 (first footnote omitted):

In pursuing this investigation the relations of an inventor and the public to an unpatented invention first demand attention. In its earliest stage this invention is a mere addition to the stock of ideas possessed by the inventor. He has imagined or discovered something which to himself, and presumably to all the world, is new, and has conceived a method by which his idea may be so applied as to produce a tangible and valuable result. In this stage he has a natural exclusive right to his invention. No one can compel him to disclose his secret. He may reduce it to actual practice, or preserve it as a matter of subjective contemplation. The law can take no other notice of it than it does of his moral sentiments or his personal recollections. If, however, he endeavors to avail himself of this idea in his exterior life, his position in regard to it is somewhat changed. The material forms in which he then empbodies it are his, but the idea itself is not to be imprisoned within their narrow bounds. Every one who examines and can understand them immediately conceives the same idea, whether he will or not, and thenceforward that idea remains as much a part of the observer’s fund of knowledge as it ever was of that of the inventor. In order, therefore, to retain exclusive ownership of his idea, he must withhold its material embodiment from observation; and as long as he can do this, the invention is as truly his by natural right as if it never had been thus externally expressed. But with his submission of the tangible result of his idea to the inspection of others, in such a manner that the idea itself become apparent, its control over it is gone. An idea once communicated can no longer be exclusively appropriated and enjoyed. Every one who receives it possesses it in the same degree as if he alone had apprehended it, and its inventor has no power to restrain him from its practical and useful application. Under the laws of nature the exclusive public use of an invention is thus impossible, and hence there is no natural right to such a use. The inventor, who voluntarily discloses his invention to the public, necessarily and freely dedicates it to the public; and that which formerly was his alone by virtue of his sole possession becomes by universal possession the common property of all mankind.²

2. Coryton:¹ (45) “So far as natural right is concerned, the application of a law of nature, a philosophical or abstract principle, is capable of exclusive appropriation only so long as the secret of such application is within the inventor’s breast. Once passed, it becomes the property of all mankind.”

Norman:² (2) “Independently of an express restriction by the sovereign authority in a state, there is no such thing as exclusive property in an invention. The subject-matters of human inquiry are free to all men. An addition once made to the stock of knowledge is common property forever, nor is it less the property of the discoverer because others possess it as well as himself. It is in its nature infinite and incapable of appropriation. The first builder of a house could claim as his own the substantial and tangible materials, the logs and wood of which he constructed it; but the idea of wuch an erection became instantly the property of all mankind. The abstract natural right of the inventor is only to exercise his own invention freely.”

In The Attorney-General ex rel. Hecker v. The Rumford Chemical Works (1876), 9 O.G. 1062, Shepley, J.: (1064) “So long as such writings and discoveries were not communicated to the public, authors and inventors had a possession of, which was equivalent to a property in, their writings and discoveries. When communicated to the public, by the common law that property was lost.”

[continue reading…]

1. Apparently this is a reference to Coryton on Patents (1855).  [↩]
2. Apparently: John Paxton Norman, A Treatise on the Law and Practice Relating to Letters Patent for Inventions (1853; Amazon).  [↩]

Whenever there is “bipartisan” legislation in Congress, hold to your wallets, for they are coming after it.¹ Or, in this case, they are going to make the patent system worse, i.e. “improve” it. Don’t you know, it’s “broken.”

IP law almost never gets better. It always gets worse. The copyright terms keep getting extended—from 14 years extendable once, to life of the author plus fifty years, now life of the author plus seventy years.² There is  constant agitation to make the copyright fair use defense harder to invoke, constant calls to expand copyright to cover links, newspaper story headlines, and so on. Patent law almost never gets better, except as the random happenstance of court interpretations of its nonobjective and vague standards, e.g. in eBay Inc. v. MercExchange, L.L.C., the 2006 case that mercifully made it somewhat more difficult for patentees to get injunctions against their victims. Something patent terrorists continually whine about.³ The only meaningful improvement in the entire history of US patent law—from 1790 to now—that I am aware of was an expansion of prior user rights in Obama’s 2011 America Invents Act.⁴ But this was pretty minor. Okay there was one other minor one too, that I mention below. The other changes were all window dressing, though you would not know it from the caterwauling of patent shills who freak out about every tiny change to avoid real change ever being considered. They want to keep that Overton window small.

[continue reading…]

1. See also: “Run for your life from any man who tells you that money is evil. That sentence is the leper’s bell of an approaching looter.” —Ayn Rand, “Francisco’s Money Speech” and: “Is there a need to reform taxes? Most certainly. Always and everywhere. You can always make a strong case against all forms of taxation and all tax codes and all mechanisms by which a privileged elite attempts to extract wealth from the population. And this is always the first step in any tax reform: get the public seething about the tax code, and do it by way of preparation for step two, which is the proposed replacement system. Of course, this is the stage at which you need to hold onto your wallet.” —Lew Rockwell [↩]
2.  As I sarcastically observed here, the rules for determining the term of a copyright are clearly the product of natural law. See KOL012 | “The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism,” Austrian Scholars Conference 2008. [↩]
3. Adam Mossoff & Eric Claeys, “Patent Injunctions, Economics, and Rights“; Christopher B. Seaman, “Permanent Injunctions in Patent Litigation After eBay: An Empirical Study“. These support finite terms for patents, even though the number is totally arbitrary: “the exclusionary rights secured by a patent should account for “how long it would have taken, in the absence of knowledge of the invention, for independent discovery” resulting from the productive labors of others.43 This concern is addressed by duration limits.44″ (P. 7) It’s hard to believe they seriously believe that Congress knows and had determined what the “right patent term should be. 17 years? Why? Why should it be the same for all types of patents? Why shouldn’t the courts or the PTO figure it out? Jesus Christ, how can they bear to repeat such utter nonsense! This was the same stupid shit Neil Schulman proposed, as I noted elsewhere: “which is what J. Neil Schulman proposes in his logorights idea–just have some panel of “experts” use “information theory” to figure out how long each patent should last–1.3 years for this one. 26 years for that one. and so on.” See Optimal Patent and Copyright Term Length. As Schulman writes: “Taking the “lowering entropy” argument too far into the area of physical thermodynamics runs one quickly into problems of both fact and theory; the comparative “entropy levels” of a car, a piece of junk, and a chunk of ore are incalculable. Nevertheless, I believe the “entropic” paradigm of regarding creation as a “calculable increase in improbability” is sound within the context of information theory, where one discusses the “entropy” of a signal; and, in fact, I’m told there are existing formulas, used by the Search for Extra-Terrestrial Intelligence (SETI), to calculate the “improbabilities” of a signal being a “natural” occurrence as opposed to being artificially generated “information.” J. Neil Schulman, Origitent: Why Original Content is Property (Steve Heller Publishing, 2018), p. 40. And now you have these guys buying into this. What’s their authority? Nozick’s dilettantish remarks in his anarchy book; he didn’t know anything about IP law, or even how to justify rights! Oh, and Ayn Rand, who made up some makeweight argument. And of course the Congress and the US Code that “says” what the patent term is. Oh, that’s some proof! See also Yaron Brook on the Appropriate Copyright Term; Hawley Introduces Bill to Reduce the Copyright Term; Reason: Copyright Should Last Half A Century; and see the remarks on copyright term and related matters by Tom Bell and Jerry Brito in Tom Bell on copyright reform; the Hayekian knowledge problem and copyright terms. [↩]
4. “Obama’s Patent Reform: Improvement or Continuing Calamity? [↩]

X:

[I’m a law student in a foreign country]

I’ve found many interesting subjects regarding Intellectual Property, especially this debate inside the libertarian community, with Austrian economists’ and anarcho-capitalists postures being the ones I’m the most curious about. This is where I found your articles and your contact information.

Before, while doing some personal investigation about ways to achieve more liquidity from copyrights and their use as assets I found out that decentralization through the use of blockchain and DLTs in creative works markets and the participation of artists and authors in such tends to provide more efficiency and effectiveness for this purpose, of artists and authors getting paid for their works, I’m also a musician so that’s why I was trying to learn about this subject. [continue reading…]

Contra la propiedad intelectual, Spanish translation of Against Intellectual Property (Scribd version; print version; pdf; local pdf (with foreword); Word; Vanguardia Libertaria). Traducción y prólogo: Mariano Bas Uribe. The prólogo, which included in the print version but missing from the files provided above, is reproduced below along with an English translation.

Prólogo

Contra la Propiedad Intelectual
By Stephan Kinsella (Against Intellectual Property)
Traducción y prólogo: Mariano Bas Uribe

Stephan Kinsella es uno de los expertos en uno de los asuntos menos tratados por la literatura libertaria reciente: la propiedad intelectual. Siendo él mismo abogado de propiedad intelectual, su postura en contra de su existencia no deja de resultar sorprendente, aunque también es un reflejo de su fidelidad a sus principios.

El libro que tiene el lector en sus manos contiene su obra principal, Contra la propiedad intelectual, y en él hace un repaso tanto de los distintos tipos de propiedad intelectual (patentes, derechos de autor, marcas registradas y secreto industrial) como de las distintas argumentaciones libertarias a favor y en contra de esta.

En un momento en el que la influencia en la política del llamado mundo de la «cultura» (al menos en España) va ganando cada vez mayor peso y ejerce su influencia para obtener dividendos materiales reforzando la legislación de protección de la propiedad intelectual, no parece fuera de lugar replantearnos la justicia y validez de esta institución.

La tesis esencial de Kinsella se basa en la función social de la propiedad. Como ha indicado repetidamente Hans-Hermann Hoppe, la función de la propiedad es la de resolver conflictos sobre el uso de los objetos. El hecho de que las cosas materiales posean un dueño evita los conflictos sobre su uso y resuelve el problema de la escasez. La llamada propiedad intelectual no se ve en absoluto afectada por este problema, ya que el uso de la misma no es exclusivo: por ejemplo, si estoy escuchando una canción, no se la estoy «quitando» a nadie y la copia de esta a un nuevo soporte no hace que desaparezca el original.

Pero Kinsella no se limita a hacer una exposición economicista-libertaria. También se ocupa de los argumentos relacionados con el fomento de la creación, el utilitarismo y el derecho natural, siempre con gran abundancia de ejemplos y notas a pie de página que facilitan al lector curioso la profundización en los argumentos aportados por el autor (lamentablemente, muchos de estos títulos están en inglés, aunque el volumen de literatura en español esté aumentando, gracias, entre otras cosas, a la labor de entidades como Unión Editorial, responsable de esta edición).

A pesar de que la edición original de este libro (de 2001) tiene ya unos años, la gran mayoría de sus argumentos siguen siendo válidos y permiten una visión general de los problemas planteados. Kinsella sigue escribiendo y aportando ideas dentro del entorno del Instituto Mises, siendo asimismo director del The Center for the Study of Innovative Freedom (https://c4sif.org/) y editor de Libertarian Papers (http://libertarianpapers.org/). Remitimos asimismo al autor curioso a esas publicaciones si quiere mantenerse al día sobre este asunto.

La propiedad intelectual es un asunto controvertido dentro del pensamiento libertario, incluso en el entorno estrictamente anarcocapitalista, por lo que este libro constituye una aportación extraordinaria a los muchos debates que se pueden plantear en este sentido. Kinsella atrae por la solidez de su argumentación, su erudición y su capacidad de explicación de los distintos argumentos, abarcando los puntos de vista de libertarios tan importantes como Rothbard, Rand, Block o David Friedman, sin olvidar algunos puntos de vista peculiares como los de Galambos. También expone algunos temas menos tratados, como la distinción entre descubrimiento e invención.

Kinsella concluye con un ensayo sobre la posibilidad de establecer algún tipo de propiedad intelectual basado en contratos, criticando ciertas aportaciones de Rothbard (que no estaba en contra de la propiedad intelectual), y termina con un curioso apéndice con ejemplos cuestionables de patentes y derechos de autor que nos deberían llevar a reflexión.

***

Foreword

Against Property Intellectual
By Stephan Kinsella (Against Intellectual Property )
Translation and foreword: Mariano Bas Uribe

Stephan Kinsella is one of the experts on one of the least discussed issues in recent libertarian literature: intellectual property. As an intellectual property lawyer himself, his stance against its existence is surprising, although it also reflects his commitment to his principles.

The book you are holding contains his main work, Against Intellectual Property , and in it he reviews both the different types of intellectual property (patents, copyrights, trademarks and industrial secrets) and the different libertarian arguments for and against it.

At a time when the so-called “cultural” world (at least in Spain) is gaining increasing political influence and exerting its influence to obtain material benefits by strengthening intellectual property protection legislation, it does not seem out of place to reconsider the justice and validity of this institution.

Kinsella ‘s essential thesis is based on the social function of property. As Hans-Hermann Hoppe has repeatedly pointed out, the function of property is to resolve conflicts over the use of objects. The fact that material things have an owner avoids conflicts over their use and solves the problem of scarcity. So-called intellectual property is not at all affected by this problem, since its use is non-exclusive: for example, if I listen to a song, I am not ” taking ” it from anyone, and copying it to a new medium does not make the original disappear.

But Kinsella doesn’t limit himself to an economicist-libertarian exposition. He also addresses arguments related to the promotion of creation, utilitarianism, and natural law, always with an abundance of examples and footnotes that make it easier for the curious reader to delve deeper into the author’s arguments (unfortunately, many of these titles are in English, although the volume of Spanish literature is increasing, thanks, among other things, to the work of organizations such as Unión Editorial , responsible for this edition).

Although the original edition of this book (from 2001) is a few years old, the vast majority of its arguments remain valid and provide an overview of the issues raised. Kinsella continues to write and contribute ideas within the Mises Institute, and is also director of The Center for the Study of Innovative Freedom (https://c4sif.org/) and editor of Libertarian Papers (http://libertarianpapers.org/). We also refer the curious author to these publications if they want to stay up-to-date on this issue.

Intellectual property is a controversial issue within libertarian thought, even within the strictly anarcho-capitalist context, so this book constitutes an extraordinary contribution to the many debates that can be raised in this regard. Kinsella is compelling due to the solidity of his arguments, his erudition, and his ability to explain the different arguments, covering the views of such important libertarians as Rothbard, Rand, Block, and David Friedman, without forgetting some peculiar points of view such as those of Galambos. He also expounds on some less-discussed topics, such as the distinction between discovery and invention.

Kinsella concludes with an essay on the possibility of establishing some form of intellectual property based on contracts, criticizing certain contributions by Rothbard (who was not against intellectual property), and ends with a curious appendix with questionable examples of patents and copyrights that should give us pause for thought.

Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before.

Judge Alex Kozinski, in White v. Samsung Elecs. Am. Inc., 989 F.2d 1512, 1513 (9th Cir. 1993) (Kozinski, J., dissenting from denial of rehearing en banc)

As I noted here:

I published Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023) last September, in hardcover, soft cover, and Kindle formats. A free pdf was released at the time of publication as well and the book was published under at CC0 (no rights reserved) license. Read more >>

As I explain at the AIP landing page,

For a compilation of my more recent writing on IP, see You Can’t Own Ideas: Essays on Intellectual Property (Papinian Press, 2023). And see also Stephan Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023). I stand by AIP but You Can’t Own Ideas contains a streamlined and updated version of the arguments in AIP, “Law and Intellectual Property in a Stateless Society” (ch. 6) followed by Against Intellectual Property After Twenty Years: Looking Back and Looking Forward (ch. 7) (these are also included in Part IV of Stephan Kinsella, Legal Foundations of a Free Society (Houston, Texas: Papinian Press, 2023)). Together, these two chapters my main arguments against IP. AIP and other chapters in You Can’t Own Ideas thus contain the bulk of my anti-IP ideas and will have to suffice until I tackle writing Copy This Book: The Case for Abolishing Intellectual Property (probably in 2026 or so).