 Hi there, everybody. My name is Scott Grayson, and you're listening to Mentally Unscripted, the podcast where my co-host Stefan and I inspire you to think more clearly and have better conversations about the world. When you ride along with us, we'll take you on a journey that will show you there's always more than one way to look at an issue. You'll learn to think critically about what you see in here and how to challenge the narratives that those in power want you to believe. You won't always agree with us, but that's the point to learn that we can have deep conversations and learn from each other, no matter how different we are. This week, I find myself outnumbered by Stephens as we welcome Stefan Kinsella to Mentally Unscripted. Stefan is a brilliant articulate libertarian legal scholar who explains why the mainstream notion that intellectual property spurs innovation is wrong. He dives in by telling us why IP laws are simply government-issued monopolies that actually impede innovation. He then explains why removing IP laws would make us more prosperous. And he closes out the podcast by discussing other innovative ways creators can profit without protectionist laws. As always, we're building a community around Mentally Unscripted. So share this episode with your friends and interact with us at MentallyUnscripted.com. And remember, the conclusion you reach is less important than the process you followed to get there. Alright, everybody, this is episode 55 of Mentally Unscripted. And this is a very special episode because I never thought in my entire life that I would be outnumbered by Stephens. And yet I am here. They've got two Stephens on the on the call with us. First is Stefan cohost Stefan cohost. How are you doing? I'm doing well. Can complain. I feel a little bit of competition here with the name, but I'll survive. Awesome. And the other Stefan on the call or on the podcast here with us is Stefan Kinsella. Mr. Kinsella is someone I am very thrilled to have on. He is a libertarian legal scholar, a prolific writer, prolific podcaster, prolific podcast guest. He's all over the place. I heard heard you Mr. Kinsella. I don't know three or four years on the Tom Woods show heard you talking about how you're a anti IP IP attorney. And I just thought that was great. I loved it. And also the director of the Center for the Study of Innovative Freedom. So happy to have you here. Anything else to the you want to add to the bio there? No, that covers it. Awesome. I wanted to have you on because I'm been like I said, I've been reading your stuff for a while. And I'm really interested in this idea of IP law. Now, I'm an attorney, but I don't know a lot about IP. I know just enough to probably give people bad advice. And that's it. But I really like the idea, really into the idea of how we can function in a society where we limit the amount of involvement of the state. And I think IP law and the way that you've been writing about it and talking about it, I think is an excellent way of showing people just how we can limit the the reach of the state while still maintaining an orderly society and still allowing people to profit off of their hard work without us degenerating into some, you know, Mad Max style dystopian movie type thing. So let's just kick it off for I think most of our listeners probably are not legal experts. So what what is IP law just generally? Yeah, it's a it's a special specialty area of law, which includes patent law and copyright law and also trademark law and a few other things which are not as well known like trade secret and some other areas, but primarily patent and copyright. So patent patent is the type of law that gives inventors some kind of rights in their inventions, which are like practical processes or machines. And copyright is a law that gives authors the rights in original creative works like novels or paintings or movies or songs. So that's what IP law is. And it originates in two statutes in the in the US in the federal federal statutes, which were first enacted right after the Constitution was ratified in 1789, I think around 1790 or 91, the first two laws. And they trace their origins back to some practices and statutes in Europe, such as the Statute of Monopolies in Britain in 1623. And the Statute of Anne and that was the Statute of Monopolies was kind of the origin of modern copyright law. I'm sorry, modern patent law. And you can see even the title of the British parliament understood that patents were monopoly grants, which is one reason that we libertarians should oppose them and that people that call them property rights are being a little bit dishonest and disingenuous. And copyright comes comes from the Statute of Anne of 1710. And the purpose of that, well, that flowed from the the attempt of the government and the church to stop people from printing works that they didn't want them printing after the printing press came out. So the origins of copyright are in censorship by the state and the church. And the origins of patents are in the grant of monopoly privileges by the state. So they're both rooted in totally un libertarian and unjust state practices and policies. So it's kind of ironic that so called advocates of the free market and private property rights support them under this this label of intellectual property. Originally, these laws weren't called property rights at all, they were never understood to be property rights, even people that were somewhat in support of them understood that they were derogations from the free market and private property rights and natural property rights. But they thought they were necessary for a certain purpose, like to incentivize innovation or something like that. But they were under no illusions that they were anything but a temporary grant of monopoly privilege by the state. And when the free market economists in the 1800s started criticizing these laws saying what the hell are we doing granting these monopoly privileges, we should just get rid of them because they are contrary to the free market and private property rights and contracts and all this. The defenders by then there had been entrenched industries that had grown up that were dependent upon these laws like the publishing industry, the book publishers, and an increasing number of manufacturing industries dependent upon patent laws. So they said no, no, no, we don't want to abolish these laws. They're not they're not they're not monopoly privilege grants. They're their property rights. And everyone said, Well, how can they be a property right? They don't attach to any physical or tangible or material or corporeal and they expire after 28 years or 14 years or whatever. And property rights don't expire. And so then the guys said, Oh, well, there are special type of property, right? They're intellectual property rights, because they cover things that are created by the product of your intellect. And just just like you work hard on your farm to grow crops, and you get the rewards, you get to reap the rewards of your labor, and your efforts, and your hard work. If you also spend hard work coming up with a new machine machine design or a novel that pleases people or painting, you should have a property right in that too, because you know, we should the purpose of law, I guess, is to reward effort and to make sure people have the right to a profit, which of course is all nonsense. So purpose of law is not to reward people or to give it even to give incentives. Certainly not to guarantee that you have an income from your hard work because lots of times you work hard on the free market and you make no profit, you know, you fail. No one has a guaranteed right to a stream of income or to customers or to profit. So the whole the whole theory is flawed. But anyway, that's that's roughly what so IP law is basically intellectual property law, which includes patent and copyright, which are modern statutory schemes, which I think are incomplete opposition to private property rights competition, and innovation actually, I think they actually stifle and distort and corrupt artistic creativity and practical innovations. So they make us all poorer because they reduce the amount of innovations that we have, which is really what has made us richer in the last 200 years is the accumulation of technological knowledge. And if patent law distorts that or impedes it, it makes us more poor. So how does patent and copyright impede innovation restrict creativity? Yeah, well, let's say copyright first. So copyright, I won't say copyright makes us more poor because copyright is about artistic creation. In my view, patent law is worse because it harms the human race in a more material way, which we'll get to in a second. Copyright is worse in another way because it lasts far longer in today's law. Originally, they both lasted about 14 years. And then patent law gradually changed morphed to about 17 roughly years. copyright was 14 years and you could renew it once for up to 28. And the idea of the 14 year term originally was based upon this arbitrary idea that if you're an artisan and you, you know, you're a skilled artisan and you make something, you have these apprentices and these apprentices have seven year terms. So when your apprentice becomes free to go out and compete with you, he could he can use your ideas and compete with you. So the idea was, well, let's let's give the let's give the artisan two apprentice terms of breathing room. So he can be free from competition for up to two apprentice term. I mean, it's totally arbitrary, but that's where it came from. But over the years, the copyright lobby has gotten stronger and stronger, especially in the 20th century with with the music industry and the and the movie industry. And they've lobbied over and over and over and over again to keep extending the terms. And then we joined the Byrne Convention, which is an international copyright treaty in the 1980s. And basically that made copyright easier to get it made it to be automatic. You don't have to file most people that talk about copyright don't know what the hell they're talking about. And this especially a noise being when they when they when they're in favor of it, and they don't even know what they're talking about, like they don't even understand the law that they're in favor of. They don't understand the difference between patent and copyright and trademark, which I understand they're complicated. But if you don't know what you're talking about, don't speak in favor of it, right? So copyright is now automatic. So people say, well, hey, cancel your hypocrite because you copyright your own works like you don't know the hell you're talking about because I don't copyright my works. No one copyrights their works because ever since the Byrne Convention, it's automatic. As soon as you write something down, you have a copyright that the federal government grants you whether you want it or not, you don't have to apply. You don't have to put a copyright notice on it. You don't have to register it. It's just automatic and you can't even get rid of it. It's basically inalienable. There's no way to get rid of it easily. So when people blame people like me for hypocrisy for having copyright, that's like saying, hey, cancel your your hypocrite for opposing taxes and being subject to the tax laws. It's like, no, I'm against the tax laws. I can't help it that I have to abide by the tax laws because they'll put me in jail if I don't. In any case, copyright lasts right now for the life of the author plus 70 years, which is over a century in most case. And also copyright, what it does is it distorts culture because it makes people do things that they can do and it makes them avoid things they can't do. So like remixing or reusing things or like if I wanted to write a sequel to a novel, I couldn't do it. The court could give an order and block me from doing it like they did with the Catcher in the Right sequel. Or if there was a sequel to the Star Wars movies, you couldn't do that without permission. Courts would ban that. The courts banned the the movie Nosferatu, an early black and white movie because it was held to be a derivative work of the Dracula novel by Bram Stoker. So actually copyright law literally leads to the banning of books and art, which facially violates the First Amendment, which says Congress shall make no law abridging freedom of the press. And copyright law clearly violates freedom of the press. And my view is that means copyright law unconstitutional because the copyright law is based upon the copyright clause in the 1789 Constitution, but the Bill of Rights with the First Amendment was enacted in 1791 by a different Congress. And to the extent that there's conflict, then the later provision always governs under legislation and constitutional interpretation. And the Supreme Court has actually recognized that copyright law and the First Amendment or intention, they call it, or conflict. But instead of saying that well that means that the copyright law has to fall to the extent that it violates the First Amendment, they say well we have to balance them. So you know everyone says America has strong First Amendment protections and that you need a compelling government interest to violate First Amendment rights. That's not the case in copyright. So you know you need a compelling state interest or you need a copyright law, I guess. So copyright, it reduces the amount of remixing and artistic works that would involve copyright. And so copyright impedes the like some documentaries can't be made or they have to be cut because they have photographs or pictures of buildings or people's faces or works. So it totally hampers artistic creativity and distorts it, I would say distorts it. Also it's being used now as a threat to internet freedom because the internet is the world's greatest copying machine and so there's rampant piracy. And so you have all these six strikes and six strikes laws and the Digital Millennium Copyright Act and various websites are taken down all the time. YouTube videos, I think there's a million YouTube videos taken down every every month or every three months or something because of robotic, automatic robot takedown notices claiming copyright infringement. And even if it's not an act of copyright infringement the YouTube and Google have to take it down because if they don't take it down then they lose the safe harbor of the DMCA which would otherwise mean that they are subject to contributory copyright or secondary liability for the infringing acts of their users as if they were a publisher and they would they would just be shut down. So it's led to literal censorship. Millions of YouTube videos are taken down all the time because of copyright and websites are taken down all the time by the by the by the federal government. Go ahead. So yeah, so a question about that just to make this really concrete I think someone who doesn't have a perspective on this who's just kind of raised in the system right that here is like patents are good they protect the individual creator the same with trademarks. Maybe maybe an example of something something said like well J.K. Rawling writes this book Harry Potter and someone else gets a copy of the transcript and they have better relationships to publishers can they now go and get this published and reap all the rewards and or they've you know they basically write an equivalent book you know word for word and and they they have a I mean I guess that's just photocopying right but like is that is that a material concern are they thinking about it I I sense they may be thinking about the wrong way. Well I think it's a mistake I have a talk I did a few years ago it's called something a Locke's big mistake like it was a mistake from the very beginning it was basically the labor theory of value and the labor theory of property which I think have corrupted the entire world of political philosophy and legal philosophy. John Locke's argument which is roughly right in its conclusions is that if there's an unowned resource in the world which is a type of thing we use as a means a scarce means of action a thing over which there can be conflict which is a rival worse resource you know a physical object or a piece of land or your body we have property rights in those things to settle who who get who has the right to control it that's what property rights are and the in the two primary rules that we determine who owns a resource when there's a dispute is original appropriation or first use who like who owned it first who started using it first because the first user has a better claim than latecomers that's what property rights mean that the existing owner can't be ousted by someone that comes later and the very first user has to have a better right than a second person because otherwise no one will be able to use resources in the world that were unowned in the first place so sort of like Mises regression theorem for money you have to go back and there has to be a right to use things that are unowned because no one owns it and so they don't have a right to complain if you start using it and if you didn't have that right then we would all die so people have to have the right to use things and once you use it you're the first owner and you have a better claim than a latecomer so that's original appropriation of Locke and then the second principle will be contract if you're the owner then you can give it to someone else by contract so just those two principles alone basically can tell you who owns everything I mean that's all you need but people assume that creation is one of those principles because they say well if you create something you're the owner and the reason they say that is because Locke's argument he says well you own your body because God gave it to you and therefore you own your labor because that's what your body does and therefore if there's an unowned thing in the world and you mix your labor with it like by by transforming it or putting a fence up or building a farm or whatever then you've mixed your labor with that thing and you own your labor as a substance like and if you don't own the thing you mix it with you would lose ownership of your labor because they're another mixed in together so the the presupposition there or the metaphor is that labor is a thing that you like as a substance that you own that like exudes from your body and that you own and that goes into other things and you maintain ownership of it and that is like a completely non-rigorous confusing and false metaphor and it's very similar to Marx the Adam Smith Ricardo Karl Marx labor theory of value which is that the reason objects have a value and it's sort of an objective or intrinsic value is the labor that the worker put into it which is you know what underlies the the communist idea that employers are exploiting their workers if they make a profit because they're taking some of that surplus value of the labor and you know the whole thing is all confused so I think that what what you said earlier is like a copyright protects the creator it does protect the creator but what it's a protect them from it protects him from competition but the natural free market libertarian private property state of affairs is is this you live in a world and if you have private property rights no one has the legal right to use a resource that you have a right and that's a scarce resource and you can determine that right by those two principles by original appropriation or first use and contract so if you have a resource that you bought from someone who owned it or that you found yourself and transformed it then you're the owner and that's it but if you have information that guides your actions that you find useful like you you know how to grow grow crops right you know how to raise animals you know how to build a house or build a farm or make or make machines or devices that you sell to people you know how to do this this is useful knowledge you can keep the knowledge to yourself if you want to but sometimes you might need to reveal it to the world if you write a novel you know you're not going to make any money unless you sell it but when you sell it you're telling people hey here's a here's a useful combination of words that you might find pleasing right or if you tell them I discovered oil over here or here's how to make a log cabin if you tell people that or if you show them how to do it by building a log cabin that's publicly visible or you start selling the logs to make log cabins you're revealing information to people so when you reveal information to people you can't complain that they use that information this is how the human race advances by people learning things from observing other people or hearing other people say things so um so basically copyright and patent protect the creator of useful knowledge from competition but you don't have the right to be protected from competition because competition just means people see what you do and they emulate it to some degree or they learn from it and make an improvement or they may copy it exactly but in either case they're only doing it because you chose by your actions to make this this information public and once you do that you can't complain but just to quickly circle back to the earlier thing and then if you want to ask me about either one of these i mentioned copyright is problematic because it distorts culture in its center speech and it also is a threat to internet freedom which is a problem for libertarians because the internet is a great tool we have to fight state surveillance and state laws right to spread information about what the state's doing and so anything that restricts internet freedom is a problem for libertarians and copyright law does that because it prevents people from saying what they want to say quite often patent law and a thing i still think is worse even though it doesn't last as long because it actually impedes innovation it impedes innovation because let's suppose you come up with a useful machine or process and you get then you apply for patent by the way no one does this because of patents they just do it because they need to solve a problem or to make a better product but then once they have the right to apply for patent they do it because once they get that patent they can use that to stop people from competing with them for seventeen okay so once you have a useful new product and you have a patent on it your incentive to keep improving is reduced because you have no competition for seventeen years so your innovation goes down because you can just charge monopoly prop monopoly monopoly prices for uh for for seventeen years and get monopoly profits so you don't have as much of an incentive to keep innovating and by the same token your would-be competitors never come to existence because they don't bother to take your new mouse trap or your new plow or your new printing press or whatever it is you have a patent on phonograph light bulb whatever airplane um you know genetically altered seed whatever because they can't they can't sell that and they can't so they don't bother to learn how to do it and they can't make an improvement because the improvement would also in most cases be covered by the patent so it reduces the amount of innovation by would-be competitors as well so the original inventor his his innovation is reduced and his competitors don't compete as much and therefore they don't innovate as much in his space so there is no doubt that innovation is reduced by the patent system and it is also distorted it's distorted because you tend to innovate in areas where you can get a patent on it that is practical gizmos but you can't get a patent on laws of physics or mathematical theorems because they're too abstract so the incentive to do those things is relatively reduced so it distorts everything so when you distort innovation and when you reduce innovation you you reduce the cumulative knowledge that we accumulate as a human race over time and that knowledge is what makes us more efficient and using the scarce resources at our disposal and that is what makes us richer learning more and more ways to manipulate the world right it's not that we're not richer now than the Romans were because we're smarter we're probably stupider because of welfare and the and the evolutionary you know the idiocracy effect but we have more technological knowledge that has cumulatively developed that we can we have at our disposal I think that's why we're richer so anything that slows down the pace of the increase of human technological knowledge impoverishes relatively impoverishes the human race who knows if we hadn't had patent law for the last 100 years we might have flying cars by now and you know a little mr. fusion DeLorean cars in our in our garages but we don't know because that has been killed by the state is this the unseen cost of state regulation but anyway go ahead I'll I'll let you guys so how would you respond to the argument though that without intellectual property protections we wouldn't have any and there would be no incentive to innovate in the first place so any reduction in innovation that comes from these these laws is just a trade-off we have to make to get the right original innovation in the first place well several responses one response is first of all it's not an argument it's just a question posing as an argument it's a loaded question and the assumption of the loaded question is that even though even if they acknowledge my claim that there's obvious distortions and impediments to innovation and mammoth cost to the patent system let's say lawyers fees like mine and lawsuits and increased insurance costs and all these kinds of things because of lawsuits hampered free trade because of the international trade commission you know blocking imports because they violate patents all those kind of things then what they their comeback is yeah but the patent system also makes some innovations possible because some some innovations you couldn't recoup your costs because of the competition so now you can because you have you can recoup your costs because you can charge a monopoly price for 17 years so what they're saying is okay yeah we reduce some innovation but we have more innovation on the other side but then they would have to argue that the differences is still positive like like we we impose 75 billion dollars of net loss on the economy because of lost innovation but we have 88 billion in increased innovation so the net is 13 billion so we're all better off well they'd have to come up with these numbers improve it which they never even attempt to do and which is impossible to do if you're an austrian economist who believes value is subjective right and and not interpersonally comparable but and not only that all the evidence is in my favor showing that it's just it's just a net loss overall right but the fundamental argument is that the purpose of law is not to give these incentives because there's no end to that the purpose of law is to do justice by respecting property rights you you lay the ground rules for who owns what and then you let people compete and innovate and interact with each other on a commercial and non-commercial and civil society and scientific and artistic basis however they want and whatever happens is what happens in society the purpose of law is not to sit there and have some committee analyzing the market for market failures where the market a pure free market that doesn't have these artificial incentives breaks down and has an under production of innovation and we're going to tweak the market by fixing this by having a government grant these monopolies which we can never measure anyway like the whole thing is ridiculous if you really believe that the whole purpose of law is to maximize innovation then we should tax people at 98% and and reward innovators with a prize every year I mean there's no into how much because let's say that they're right that we have X innovation without patents and by the way no one can with a straight face argue there's zero innovation without patents or zero artistic creation about copyrights because there's always been innovation and artistic creation throughout history before these modern laws there would all and their argument is not that their argument is you have no creation without IP law their argument is you have you won't have enough so they have in their mind that the free market would have some innovation but there's an optimal amount that's above that and that we're so so the market is suboptimal there's market failure in effect right and so what they're saying is if you introduce these government artificial government grants of monopoly privilege you can raise the natural amount of innovation up closer to the optimal amount something like that they have no evidence for this whatsoever by the way this is just their theory but even if they're right then the the amount of innovation you have incentivized with your patent system still might be suboptimal right because there might still be some pharmaceuticals that you could that would take $10 billion to produce that you still can't recoup even with a patent monopoly for 17 years so the government needs to give you $10 billion on top of that you know I mean there's just no stopping point to this logic so or put it this way instead of having a 17 year patent term why don't we make it 38 years let's double it or let's triple it or let's make it infinite or let's make the penalties not be merely the payment of monetary damages let's make it criminal like copyright laws criminal you can go to jail if you if you download or if you upload a movie onto the internet some some some guy went to jail for a year for uploading the Wolverine movie a few years ago I mean there are criminal penalties for copyright so why not have why not there was a grad student in Britain Richard O'Dwyer several years ago who had a website with hyperlinks to pirated copyright material he didn't host them himself he just had hyperlink which is basically giving people information saying hey if you want to find pirated information you can go to this website and the United States tried for several years to extradite him to the U.S. to face federal criminal you know to go to federal prison in the U.S. he was a grad student his life was ruined you know he was fearing going to prison in America for just having a website I mean it's it's insane so the point is you could have you could have criminal punishment punishment for patent infringement if you really want to incentivize innovation and why not why why just criminal punishment how about how about capital punishment you could execute people for doing it which by the way it was done in France when people would have buttons that weren't approved they would they would torture them to death I mean IP law is a serious thing so you know David that's that's I was thinking the real crime is that he was hosting Wolverine and not a better movie but uh I guess we can move beyond that no you're confusing there's two Richard O'Dwyer was hosting he was he was hosting Lynx there was a there was a guy in America who uploaded the Wolverine movie yeah okay if it had been if it had been the godfather maybe maybe that year would have been worth it you know the other thing I was thinking about the the equivalent of having the hyperlinks and and it's the equivalent of being somewhere and saying that's the neighborhood that you go to if you want to buy drugs right that's I mean maybe with a few more instructions but that's the analog right that is an analog and you go that's pretty it's pretty insane that someone I mean you go to like like right now in San Francisco I see everyone can tell you if you want to go get high and get crazy you go to the tinderline right no one no one's thinking you're going to arrest them for sharing that information right no although there are some laws that outlaw drug paraphernalia and things like that so even things that are not themselves illegal if they're too much of a causal factor in people doing things that the government has also arbitrarily made illegal look for copyright the law has evolved according to the spring in the spring court so that there's a certain amount of fair use so that suppose you you you licensed a copy of of a movie or a song and so you have a licensed copy so you're not infringing copyright but you want to make a backup copy at home right this back in the old days before streaming you want to make a backup copy some some court decisions say I think I think it's established law that if you make a personal private backup copy for non-commercial use just as a backup because you already paid for it that is not infringing copyright although it's technically a copy but it's a fair use okay it's called a fair use however the the DMCA said that if if if a copyright holder embeds digital rights management copy protection in the medium that they sell like a DVD or blu-ray for example right and it's designed to protect it's just designed to prevent people from copying things right even when they have the right to copy it right under fair use it's designed to do that if you sell or buy a device like a computer that can circumvent that copyright protection mechanism the DRM that itself is a is illegal even if using it would be legal so like it's like the paraphernalia which would be the anti-circumvention and by the way that used to be a specialized piece of hardware perhaps but now it's just a computer maybe it's an iPhone like because they're so smart now so any general purpose computer is basically illegal because it could be used to circumvent DRM like the the absurdities that come from copyright and patent law because they are non-objective and they attempt to give rights and things that cannot be the subject of property rights which is information there it's like when you divide by zero you can get any result if you make information illegal or i'm sorry if you make information ownable then you're necessarily going to get absurd results which is what annoys me is when people object they sort of take my side they say or they don't take my side they say oh we agree with you can sell we need to reform patent and copyright because there's all these abuses like no there's no there are no abuses of patent and copyright the law works as it's supposed to work it's just the law is inherently absurd every good the best possible example you can give me of a patent or a copyright is itself still absurd in my view so is it is it fair if i was just going to be you know layman simple simpleton kind of expressing this the principle is that the creation of these new works and this creation of this identification of new knowledge is not actually property well i would be i would be more precise about it i think the word property technically speaking should be restricted to the relationship between a human actor or a person and a resource so if i have a television people say that's my property but the right way to say it is i have a property right in the television it's not property it's it's but you know what i mean and the reason is once you put it the way you put it then people start asking the question hey are you saying that ideas aren't property it's like no i'm not saying ideas aren't property i'm not saying a television is proper what i'm saying is a television is a type of thing of which there can be conflict and dispute and so property rights are assigned in those things to avoid the dispute or the conflict to make conflict be avoidable um i would say there are certain things that we can identify with our concepts and our words in the world that are just not the types of things in which there can be property because a property right is always enforceable by a law right the word enforce is in there force physical force means the legal system and human actors can use physical force to grapple with and to control and to sanction and to try to stop these things force can only be applied to physical things in the world these are causal actions against causal things so all laws are always applied laws that are enforceable by physical force and physical force can only be applied to tangible scarce rivalrous things the things that can be owned so it's nonsensical you you literally it's not that i think that it's wrong to have a property right in an idea it's impossible to have a property right in an idea because the law can only affect things that it can affect so for example if i have a copyright i don't really have a copyright i don't really have a property right in an idea rather the the notion that i should have some protection over my ideas is the motivation for the law but the law itself is really a property right in in other people's physical stuff because i can use my copyright to get a court order in joining someone from using their factory to print a book so i'm really i'm really being given by my copyright a property right in other people's ink and paper and printing press right which i never let me it's a transfer of property rights from them to me so the problem with it is that now the property right in that printing press is being identified not by the two principles of original appropriation and contract but just by government decree right it's a government decree of a negative servitude or negative easement um and a negative easement which is when someone one person has a veto right or how over how you can use your resource perfectly legitimate if it's if it's done consensually by contract this is the basis of homeowners associations or restrictive covenants like i can grant my neighbor the right to keep me from using my house as an airport or a pig farm or something like that or painting it orange right because i gave it to him but just like a girl who consents to sex is not being raped but if she doesn't consent she is consent is what makes the difference so if i can sent to this right over my property like i granted by contract it's fine but in patent and copyright the government just grants that negative easement to my neighbor or to some other guy who who files a paper with the government saying i came up with this idea first the government gives them a negative easement over everyone else's property even though those people didn't consent to that's the fundamental problem with patent and copyright so scott i know we have a lot of other questions but i have one that's very future facing can i can i explore it yeah maybe so so i think um there's there's certainly the idea i'm imagining your solution to this would be to abolish these uh these rules these laws is is that fair there is no replacement it's just take them out yeah especially patent and copyright because they're purely creatures of statute they didn't evolve and they could not evolve on the private common law like trademark did i would abolish trademark law too but it did evolve on the on the common law based upon a similar mistake by the idea that you can own a reputation which is the idea behind defamation law which we also would abolish but patent and copyright yes i would abolish them look there are some government programs that you could make an argument that we shouldn't abolish them immediately because of the repercussions like for example uh i don't know the federal reserve or maybe social security or something like that but some laws there is there's nothing redeeming about it whatsoever like the drug war um or uh or uh or ip law and by the way i would put patent and copyright law up there with the other five or six evils that libertarians always point to as being the worst thing the state does like the like public education um welfare the drug war war itself and the central the central bank and inflation and federal reserve that kind of stuff patent law is up there because it does impoverish us so so and this is this is where i'm thinking about this so i imagine a world and if you just bear with me for a minute you you have a system right now which incentivizes the enforcers of said laws not to repeal them right correct and so where could that change right you could you could imagine a benevolent actor or set of actors are able to take over right maybe there's a set of other type of scenarios well but but one if i could just explore one that i think is is going to be happening sooner rather than later is what do we do about the works that are created by machines directed by by actors right because like for example i was i was coming across a a service that does um it uses machine learning technology just to create brand new songs okay well that in theory uh if you let's say you harness all of the cloud computing power out there and you just set it in a direction for 30 days and said create every single song you could ever imagine it could in theory create most of the works that are going to be created by humans in many different ways over the next so many years and if it's already given protections would that computer have developed you know created a bunch of stuff that's already protected now the humans who are theoretically coming up with new stuff so there's an explosion of content created by machines to the point everything is is copy written yeah to the point where you're constantly having to deal with this conflict is that force our our lawyer the law system to to change well so i think what's happening is that like i said if you divide by zero anything's possible and when you have these laws which are unnatural you're going to have absurd results and this is as technology develops you're gonna have answers that are things that are unanswerable and that the law even there's like the the answer of course going to give is going to be arbitrary so they they they've slowly dealt with some of these things like originally the question was is photography for example uh in artistic creation because you're just recording facts right you're pointing a lens at something and you're recording facts over time they said well the photographer has a certain skill the way he aims it the way he lights it whatever but that's led to absurd results for example there are some famous photographs right and photographs are covered and by the way the the photographer is the author of a photograph which means if you hand your camera to a stranger or your phone to a stranger at disney to take a picture of you and your family the stranger owns the copyright so you theoretically can't even copy it anymore without getting his permission and you don't know who is because he's long gone so they can we demand the phone from them then say i'm keeping your phone because it's got my copyrighted material on there i think you would i think you would say he's he's giving you an implicit license to get your phone back and to have the the photograph he took but what the license terms are who knows but there was a case where there's a famous photograph like some guy went to the Grand Canyon and he took a shot which is a famous photograph and if you everyone wanted to make prints of it but they had to pay royalties to do that so some guy went to the Grand Canyon on the same day of the year or the same weather conditions the same exact spot the same framing he took he took his own photograph and that was that was held to be copyrighted infringement it was held to be a derivative work of the original photograph even though it was its own original photograph so is that the right answer legally there is no right answer because the laws legislation is usually not objective and there's it doesn't make any sense it's always absurd and you've had these cases where someone some some some ape i think a macaw or whatever this ape was a few years ago stole someone's camera and took a bunch of selfies so the question is who owns the copyright or is there a copyright in it or if you have a surveillance camera outside of your 7-11 you know i mean who's taking that because you know you can say well the guy who placed the camera is doing what a photographer does so or if you throw these cameras there's these three-dimensional cameras not three-dimensional but they're they have like yeah three years right yeah throw them up in the air and it takes a picture i mean it's ridiculous right or what about nasa satellites are up in outer space and they're taking pictures the government owns them plus they're an international they're outside of internationals they're up in outer space and they're outer space treaties by the way they deal with copyright which is ridiculous um and when it comes to ai things like that in fact there was a stupid stunt pulled a few years ago by this i think damien something i've got it on my web my website um what they did was they they they had a super computer generate all the possible melodies within a certain set of parameters like eight eight melody yeah eight note melodies with a certain bit resolution so like they have like 17 petabytes of songs and within there is basically every new melody anyone could ever think of in the next okay yeah 50 years it is like so but the problem is that stunt proves nothing because for patents you can't get a patent if there's an invention that is already well known and publicized so if you could have an ai generate every possible invention and publicize it maybe that could anticipate every invention and make patenting obsolete but for copyright you don't have to be you don't have to be the first originator of something it's just that like if so iran writes atlas shrug no one's going to make the same or great expectations or whatever it's very unlikely someone will originally independently create the same thing but if they did they would have their own copyright in it so in the case where you have a machine exhaustively do these melodies and someone happens to independently come up with the same melody and their song later they would not be blocked by that so it's the stunt proves nothing in fact in fact they would be able to to make derivative works and they would be able to sell their own melody because they came up with it originally and independently so it proves nothing now what i do think has happened is in the world because copying has become so easy with digital technology and with the internet and torrenting and all this kind of stuff piracy has become so rampant that copyright is almost impossible to enforce except on a big institutional level like you know across cbs and the in the hbo and the big media companies they have to abide by it but any of us can go get a book or a song or a movie anytime we want by going on the internet so basically i don't see copyright changing because it's too entrenched and the and the error that i identify this labor theory error is so entrenched in everything we talk about it permeates all the law in the world and all the political thinking i don't see it changing by legislation however it's being changed by technology and for patents i do think 3d printing if it ever matures to a point where we go from the dot matrix stage to the laser the color laser printer stage equivalent of that you know 50 years from now people will be able to print whatever the devices they want in their own basement without anyone knowing because they'll get the file from an encrypted server right the design so i do think technology is the only way to finally do it and run around these ridiculous laws so if i could summarize that the these laws may just become completely unenforceable right to the and that's kind of what you're saying is already existing today at and many levels of resolution right like with piloting you can get it yeah there's some trepidation i have when i hear about companies trying to sequence genomes or do other types of processing and then they want to put some protection rights about the work that they've done yeah as a lay person i kind of think that and it does trouble me i'm going well you know if we're going to have design babies i'm not going to have to buy a you know certain type of patent for somebody who who just identified something that was already existing there naturally one of my one of my friends is david kepsel he's not a libertarian exactly but he's kind of a he's an ip skeptic and he's a specialist on this he's written some stuff on um on the the dangers and the problems of patenting of genetic information which which is being done that's a horrible danger but these unnatural laws become it's like the drug war the drug war is hard hard to enforce although that's going after physical things so they can do some damage right um the good thing about the the the informational realm is it's harder harder harder harder to police i think so if we were to obliterate the ip laws would you favor just leaving the void wide open and telling entrepreneurs absolutely figure out i would i would not be in favor of a grace period or a transition period whatsoever okay because i think it does nothing but destruction there's there's literally nothing good about ip and there are no good arguments for ip in my view same thing with the drug war i mean you wouldn't favor like a phasing out of drug war you know for other things you could come you could argue that there should be a phase out for public schools maybe for uh you know america policing the oceans you know maybe you don't want to you don't want the the collapse to be worse than the problem but not not for patent law i think it patent and copyright will do nothing nothing but but evil in the world so then you would just leave it up to the entrepreneurs and the authors and artists to figure out how to profit off of their works yeah however they would which are which they're having to do now by the way you know musicians can't make as much money selling CDs and LPs like they used to they've they've they've gravitated towards other business models merchandise or performances you know concerts streaming rights crowdfunding people have to be creative in the face of the realities of the world can you clarify a point so if that's like the the jk rolling one she writes this book if there were no property rights at all would a studio then be able to create a movie yes and she would have no say over that well i don't know if she'd have any say over it maybe she would maybe i mean i've posited so for example she writes her first book she self she self publishes her first harry potter book she doesn't expect it to be popular but hey 20 million kids around the world read it all of a sudden she's popular which is what happened right so hey she knows and she she makes 10 million bucks off of it but then competitors swoop in right away so her profits go go away let's say which i don't think would happen but let's say let's say that happened so now she knows she can write six more books and make lots of money so she could do she could do a pre-sale like all my fans you pay me 10 bucks each or five bucks each and then i'll release it or whatever so she can make a lot of money that way so then let's say the first book is so popular and some movie studio starts to make a harry potter movie based upon her novel there may be two or three doing it at the same time right because there's a free for all one of them says you know what we're gonna we're gonna partner with jk rolling because then she'll author she'll she'll give it the blessing right and and then her fans will go to the we will sell more tickets than our competitors because we're the authorized official version so they say hey jk rolling you be a consultant for us you review it you give us your input and you give it your final blessing when you think we've done a faithful faithful production of your book and we'll release this saying harry jk rolling the original author is saying this is the one that my fan should see and we'll sell three times as many tickets as our as our low level competitors and we'll give you a we'll give you a kind of the ticket sale yeah so she could she could she very well could have a say in the authorized production and that could help them sell more tickets yeah and that that's basically the creator endorsed mark exactly yeah and so I actually read your older article I think it was from 2010 about the creator endorsed mark this morning as I was going through and doing some research for this podcast and explain I think this is really interesting you touched on it earlier but explain how a creator could prevent a movie studio from duplicating their mark and misrepresenting to the public that the creator has endorsed the movie yeah so and then you'll have people say well if you if you're relying upon this private alternative creator endorsed mark idea then then you need trademark law to back that up right that that's the idea so first of all let me explain this when people say tell me exactly how people are going to make money in a free society if we get I was like I mean my first answer is I don't know you know it's like you know in the Soviet Union if you if you told people we need to get rid of government grocery stores and government manufacturer of shoes and belts and they said well how many how many brands of underwear will there be in a free market I mean I don't know maybe there'll be three 10 20 I can't predict exactly unless I see another free society I can guess based upon but the point is you don't say well unless you can predict exactly what a free society is going to look like we're going to keep the restrictions in place all we know is the restrictions are unjust and they're causing distortion and when you release them things will change because distortions are real and they have and these laws have an effect so things will change and people will have to adapt so I don't I sometimes don't like to answer these questions because these people want to guarantee they want me to well I'm not going to favor the repeal of IP law unless you guarantee that every poet in the world is going to be able to make a living it's like well I can't guarantee that and I don't know how they're going to do it it's the same thing with welfare it's like you know when we say we should abolish welfare and the welfare state it says well can you guarantee that every poor child is going to get food and every poor child is going to get an education in this private education system we favor it's like well I have some idea of how it would work and we'd all be better off and it's unjust to what we're doing right now but I'm not going to give you a guarantee because that's the whole point of the socialist system is you want guarantees and by the way the socialist system don't give a guarantee anyway because they always go bankrupt I mean social security recipients don't have a guarantee they're going to get paid in 30 years the whole thing is ridiculous right when you have socialized medicine people have cues and they die because they can't get a heart transplant or whatever because you know there's no guarantees in the world so my system can't guarantee it either the creator endorsed Mark is just one and the thing I gave you with rolling just one guess as to what might happen there are probably lots of other creative things people would do but now back to your question let's suppose you did this creator endorsed Mark or the or let's just take the example I gave Harry J.K. Rowling says I'm going to give my endorsement to movie number one and let's say movie number two comes out and they actually lie and they say oh we also have J.K. Rowling's endorse so that's just a factual matter I mean the world doesn't need intellectual property law to know facts which some IP advocates say which is ridiculous if movie studio number two actually puts out this Harry Potter movie and says this is endorsed by J.K. Rowling she's just going to come online on YouTube and deny it and they're going to look like idiots right I mean this happens all the time with movies like when you have a movie they put the quotes of the critics up on the movie poster like they'll say oh Roger Ebert says this is the best movie ever now if a horrible movie came out and Roger Ebert gave it a zero star review now he died a few years ago this is old old you know who's a modern who's a modern movie critic I don't know I don't know if there's even the critical drinker in YouTube does some okay the critical drinker says the new Jackass movie I give it one star out of five it just sucks right and then Jackass producers start advertising is saying the best movie ever by the critical Jackass whatever the critical critical drinker critical drinker critical drinker I mean he's just gonna he's just gonna post on Twitter saying they're they're freaking lying and everyone's gonna know that the movie is not only bad but but they're dishonest it just doesn't work you just basically people have the right to lie and people have the right to listen to lies but if you lie you're going to be caught I constantly think about this idea that we solve solutions for 20th century problems but we're living in the 21st century like what are the changes what are the dynamics I mean to your point Scott and I were talking offline about The Rock The Rock as a publication machine right the guy has his own constellation of what he does for social media and you can see what he does on Instagram to be promoting movies so when you hire him you're not just just hiring him for the talent you're not just hiring from the PR he's got this whole thing that he's able to bring to whatever project well the same can go for like the fact that any person in the internet allows you unless you're in places in which the internet's censored or more heavily censored than what we're experiencing in the US they can speak directly to the audience correct yes of course of course they have the path and actually what begs the question then exactly I think the point you're bringing up is we don't know what those systems could look like if you took off some of these barriers like how would they evolve to where artists would have the main line and where they would be able to speak I mean the question comes up hey Lucas did you make this other Star Wars movie I saw it and it was garbage and he says yeah no it wasn't me and you know I'm glad I'm sorry you had to watch this terrible trash but not only that everyone would know you know people all these fans would be out there there'd be websites talking oh there's a new Star Wars movie it's not endorsed by Lucas but let's see if it's any good it's fan fiction or whatever yeah you know people overestimate the role IP actually plays today so for example they mistakenly believe that it's behind the social prohibition against plagiarism it's not it's got nothing to do with it in fact for example if you wanted to sell Moby Dick tomorrow under your name on Amazon that's not copyright violation because it's out of copyright but no one no one does that it's not a problem why does no one do it because it would be pointless because no one's going to buy Moby Dick by Stefan Gonzalez because they know I didn't write it because there's a social fact that people already know that Melville wrote it you know I mean it's just it's just pointless and likewise all these endorsements by The Rock and other people that happen right now like all these social media influencers they're just doing this as a phenomena in the world it's not protected by copyright or patent really or even trademark they just they they actually go online or somewhere and they say I endorse this makeup product or whatever I mean you know Oprah Winfrey has a book club and she says I recommend this book this month you could have someone publish a book tomorrow and they could put on the back cover Oprah Winfrey endorse this book and they could lie but why don't but that's not a copyright infringement to do that it's not a trademark infringement it it probably is something she could find something to sue you for but it's not IP law it's something else it might be contract breach it might be fraud it might be a right of publicity which is a type of IP which I I think we should get rid of but the point is it's not a rampant problem that we have to combat and when it happens on occasion everyone knows it you know if you go to China and you buy a car that looks like a Mercedes you pretty much know it's not a Mercedes if you buy an iPhone knockoff you know it's not a real iPhone you know if you buy a fake Rolex for $35 in New York City in an alley you know it's not a real Rolex yeah when when the apples upside down do you know that it's not a real iPhone if you need markers okay just be on the outlook and people say things like well if without trademark law you could have people just anyone can use the name of a proper so let's say you go to a grocery store and you buy Crest toothpaste and it turns out to be knockoff Crest well you got to buy it from some grocery store let's say it's a Kroger a big national chain and it turns out that Kroger is supplying knockoff Crest what do you think is going to happen the words going to get out people are going to quit going to Kroger so Kroger has an incentive to only buy Crest toothpaste from the original manufacturer of Crest not some Chinese knockoff I mean these problems are not real problems because they're just not real problems and IP law doesn't solve them now they don't need to solve it now and it wouldn't solve it anyway so people come up with all these fake arguments for IP like oh so you must be in favor of plagiarism you must be in favor of fraud I guess it's okay if I just take your intellectual property book and put my name on it and make a million dollars which is just retarded I mean I didn't make a million dollars off of my IP pamphlet I made almost nothing because this is just a stupid I mean nonfiction books don't make that much money but if you could actually take my book and put your name on it and make a million dollars please do so because I'd love to learn that technique you know what I mean well I I'm sorry I have a question like I think about places with what we could maybe call weak weak intellectual property rights I'm thinking about like Africa you mentioned sort of Asia and be able to go there but like so I grew up in Saudi Arabia and this was in the 80s 90s and you know there was a lot of you see some movies like there's Son of Rambo I'm not sure if you know that movie but it's it's like them recreating Rambo scenes as kids and then there's like these posters that you would see in in restaurants there's this great ones in Egypt where it's like Stallone standing up but like but they've had to like because I couldn't actually get the posters they had to like draw them out and everyone was always talking about like this is a bad thing right like they they don't have property rights we should have all the right posters but I guess a question I have is like in areas like this where maybe the property rights aren't enforced do we see more creation more creativity like Africa comes to mind more than like authoritarian regimes like Macy in Saudi Arabia where they would clamp down but like do you do you see more proliferation of ideas? Oh that's interesting well probably not but I would say that you know the West is a bigger innovator because of our wealth and our our technology and our history people often say the the essential claim there is is the is the is the fallacy of mistaking correlation with causation right so the West is richer than than the the the the South or whatever you want to call the the developing countries and we started getting richer with the industrial revolution around 1800 which is when the U.S. started and when we started having copyrighted patent laws so therefore that must be the reason right there is no doubt that we've had more technological innovation in in the U.K. and in Europe and in America in the last 200 years but to say that it's because of patent law is just assuming that there's causation when there's correlation I mean there's any number of things you could correlate you could correlate it with imperialism and with western colonization and with tariffs and with with central banking and with having a war every 10 years which we've done for 200 years you know and with high high taxation the last 170 years or whatever there's no reason to think these things are the cause of that and there's every reason to think that we would have more innovation without it but again if you if you if you make justice your lodestone where you know the purpose of law is to recognize identify and enforce property rights to do justice so that people can live and navigate within this kind of stable system and then figure out their lives that's the purpose of law it's not to just pick some arbitrary goal like okay the goal is to have everyone have a PhD in physics yeah we could do if that could be our goal I guess you could pick an arbitrary goal the goal is to have school vouchers okay the goal is to land on the moon that was a goal right the goal is to land on the moon okay or the goal is to only have 1.8 degrees celsius global learning in the next 75 years you can pick whatever goal you want that's an arbitrary goal that the government is gonna bend and contort every law and every right to achieve but and it could also be maximize innovation or optimize but why but why not why shouldn't the goal be justice which is the whole purpose of law in the first place and justice is giving someone their due and their due depends upon what their property rights are the way we determine that is the classical principles of law excellent I think that is a great example of how the market can manage all of this without the need for government being in the middle of everything the market just essentially police itself so we're a little over an hour here and we committed to keeping it for an hour so Paul do you have anything else no I thoroughly enjoyed this conversation and hearing these ideas I've read about in the past but it's great to hear an expert talk about it so I really appreciate the time and everything you shared yeah that was and that was just barely scratching the surface so if people wanted to find out more about this topic about IP law and about your thoughts on it and why it's why it's a terrible thing and it destroys innovation and anything we talked about here what are two or three places they could go to find out more information well my general stuff is at stuffandconsola.com but I've kind of moved a lot of the IP intellectual property stuff on to c4sif.org okay and we will go ahead and link to all of that and anything else before we close out no that's it I appreciate it good questions guys awesome this was a real pleasure really appreciate you being here thanks thanks a lot cheers