 Okay, everyone, we're going to get started. So if those of you who are still in line, just get food and go back to your seats. So hello, my name is Helena. I am co-president of the Federalist Society here at Berkeley Law. The Federalist Society has the following mission statement. The state exists to preserve freedom. That separation of government powers is integral to our constitution and that it is empathetically the province of the judiciary to say what the law is not what it should be. Here at Berkeley Law, we have students of all different viewpoints that participate in this group to ensure that Berkeley is intellectually diverse. Today, we are delighted to host Mr. Stefan Kinsella, who is a patent attorney and a leading libertarian scholar on intellectual property. Mr. Kinsella is the founder of the Center for Innovative Freedom and Executive Director of Libertarian Papers. Mr. Kinsella is the leading voice in libertarian scholarship on the topic of intellectual property. Mr. Kinsella got his bachelor of science and master's from LSU and his JD from the Paul M. Herbert Law Center. After Mr. Kinsella's presentation, we'll have commentary from Professor of Law at Berkeley, Professor Talha Syed. Professor Syed teaches on intellectual property and torts. His research focuses on patent and innovation policy for pharmaceuticals. Professor Syed got his JD at Harvard Law School. Lastly, we will open up the floor for Q&A. So if you have questions, hold your hand up high so I can call on you. And without further ado, please join me in welcoming Mr. Stefan Kinsella. Thanks very much, Alina. Glad to be here. I'm from Louisiana, and I was at LSU in 1988 to 1991 for law school. And I wasn't even a member of the Federal Society back then, but it was very small. So the turnout at Berkeley is much larger than it would have been even at that conservative place then. So that's heartening. I've long been an admirer of the Federal Society. I don't believe the state is here to protect our rights, however, unfortunately. So a little bit more radical than the average Federal Society member. I'm a patent attorney and an intellectual property attorney. I've spoken on this issue many, many, many times over the years, probably hundreds of times, more than I would have wanted to. I gave an intensive course at the Mises Academy about five years ago, and it took about nine hours. And even that didn't cover everything. So in the 30 minutes I have, I can only scratch the surface and hope to give you a new perspective that you can consider. I won't persuade everyone here. I might not persuade anyone here, but at least you can think, hmm, maybe there's a little bit more to this issue than I thought. So let me get the boring stuff out of the way first. What is intellectual property? Intellectual property can be viewed as legal rights protected by law, having to do with the products or creations of the intellect or the mind. That's why the word intellect is used there. Classically, this includes four legal rights. Patents, copyrights, trademarks, and trade secrets. And there are many others that have been spun off over the years, either by common law or by legislation, such as semiconductor mask works, which protect Intel's chips, boat hull designs, database rights in some countries, not the US so much. Moral rights in some countries, not the US so much. Rights to one's likeness. And even reputation rights, which are not classically considered part of IP, but I believe they should be given the way they operate. This is defamation or libel in slander law. And then there are certain cultural things happening around the world that you could think of as similar to intellectual property law, such as killing people for painting pictures of a certain prophet that they shouldn't be printing, a painting, and even the modern leftist cultural appropriation idea that you're not entitled to say certain things if you're not of the correct race or ethnicity. Those are IP-like, although they're not technically enforced by most governments. OK, why should we care about intellectual property? And it's impressive that we have a nice full room on a beautiful day wondering about this topic that makes most people's eyes glaze over like my relatives at Thanksgiving. IP, we should be interested because it's a subject of heated debate in political theory. On the one hand, you have people like Ein Rand, the sort of father of the libertarian movement. And I say father because she clapped her hands in glee when she was referred to as a man one time. But she said patents are the heart and core of property rights. And she told her lawyer and friend Murray Frank, who's an IP lawyer, oh, intellectual property is the most important field of law. And then you have things like the US Department of Commerce releasing a study in 2012 purporting to show that intellectual property intensive industries contribute $5 trillion and 40 million jobs to the US economy every year. That's probably actually true, but it's IP intensive industries. That's like saying that companies that rely on roads contribute 100% of the GDP to the US economy as if it's an argument for roads. Then on the other hand, you have empirical studies saying that patent trolls, which is just one small slice of the patent problem, cost $29 billion a year to the economy. And then you have the United States through Donald Trump and other administrations trying to foist IP protections on other countries through trade agreements and treaties, like the USMCA, the new version of NAFTA, and the Trans-Pacific Partnership, which I and others have called intellectual property imperialism. And then of course, you have the fact that copyright distorts culture severely, censors free speech, and threatens the freedom on the internet. So it actually matters that we get this right. This is an important, important topic. I've been a libertarian since about my high school years. And everything made sense to me that I read. It all made sense to me. Milton Friedman, Ion Rand, Murray Rothbard, Henry Haslett, Frederick Bastia, these guys. But when I came across Ion Rand's comments about patent and copyright, it never quite made sense to me. She's in favor of the government granting these monopoly privileges to have a limited right in time to exclude people from competing with you in the field of either ideas for copyright, which last roughly 100 plus years, or patents, which last roughly 17 years. And it struck me as odd that you would have a right that would expire. It didn't seem like a natural right, like the other things that made sense to me in free market economics and libertarian theory. So I always puzzled that. I shelved it to the side because I didn't understand it. It's a very arcane topic. And in college, I kept thinking about it a little bit. In law school, I thought about it some more. And when I took the patent bar and decided to become a patent lawyer, I started thinking about it even more, and researched and read a lot. By the time I passed the patent bar in 1994, right around the same time, I became convinced that I was trying to find justification for patent copyright law because everything I read made no sense. So finally, I realized, oh, cancel your failing because this can't be justified. That's the solution to the problem. And then when you understand this, it helps unlock the key to a lot of things about political theory, property rights, the legal system. Some of the biggest influences I had were writers that came before the internet. After the internet, 95, and so this issue of piracy and things like this became way more prevalent, and then people started ratcheting up copyright enforcement. And so people started turning their attention to copyright law. It was kind of ignored before. It was the domain of specialists. But there were a few people who had written before, like Tom Palmer, a Cato scholar, and Wendy McElroy, a Canadian libertarian individualist feminist scholar, and Ludwig von Mises, who didn't write exactly on this topic in a coherent way, but he did lay the foundations for the economic way to look at human action, which I think helps solve this problem. And then Hans Hermann Hoppe, those are the four writers that influenced me the most to come to my current views. So I, of course, have spoken on the law as a patent attorney to further my career, but, and I've written on this topic, but as a libertarian, my main interest always was rights theory, legal theory, contracts, things like that. I only wanted to write, I saw that everyone was confused about IP, and I had finally figured it out in my mind. So I thought I'm gonna write one paper on this and get it over with, and then go back to the things I like. And so in 2000, I had a big paper from, published in the Journal of Libertarian Studies, and that keeps being retreaded, and I have to write further articles and give speeches because this issue is vexing to some people. But I have found that once you look at it the way I'm looking at it, which I will get to, it does help to unlock things like causation of the law, fraud theory, contract theory, property theory, rights theory, and also the very issue of the nature and sources of wealth and human prosperity. Okay, so the question we have to answer is hey, is IP a good idea? This is a very unprincipled, pragmatic way to look at things. The question is not is IP a good idea? The question is not what kind of IP system should we have? The question is what should the legal system be? What are human rights? What are individual rights? What should the law be? Okay, so to understand that, we have to go back and understand what law is. Law is the legal enforcement of rights, and as Murray Rothbard explained in The Ethics of Liberty, all rights are necessarily property rights, rights arise because we do not live in the Garden of Eden. The Garden of Eden is this hypothetical state of nature, which of course never existed, but it's the idea that we live in a state of superabundance where our wants are always satisfied, nothing is ever impossible to achieve, there's no scarcity of anything. We don't live in the Garden of Eden. We live in a world of scarcity. This is where Mises, the famous Austrian economist and his theory of human action, which he called praxeology, comes into play. I'll be scared by the word. He did coin a word. I think everyone gets to coin one word and only one word, although Mises has two, but he's so genius, I'll give him two. Some people come up with too many, like Hayek and Vogolin, but praxeology just means the logic of human action. It's very commonsensical. What we do in our lives, all of us, is we act, okay? When we act, we employ means to try to change something that we anticipate is going to happen in the future. When we do this, we employ our knowledge as well. Our knowledge of what we think is happening and our knowledge of what means we can employ to change the course of events. So human action is centered around the idea of employing scarce resources or means of action guided by knowledge, okay? These are the two components of human action. If you lived in isolation, like Robinson Crusoe on an island, you would still have to use means, make a fishing net to catch fish, your knowledge about how to do this, and you would have to use your knowledge. But you wouldn't have the problem that we have in society which is the problem of conflict. When you have more than one human actor, there's a possibility of conflict. There's also the possibility of cooperation which makes us richer through the division of labor and social interaction. But there's a possibility of conflict because we live in a world of scarcity. There are scarce resources and the nature of the resources is that they can be used only by one actor at a time, right? And if we're to use these things peacefully and cooperatively with each other, we need rules that permit us to use these resources without being violently interfered with by someone else. This is exactly what property rights are. Property rights are simply the allocation of rights to scarce resources. Every legal system has property rights. Socialist systems, communist systems, theocratic systems, dictatorships, autocracies, democracies, and even free societies have property rights. There is some legal system which gives an answer to the question when there's a dispute over this resource between A and B or C who gets it. That's the answer. And that's what the ultimate purpose of law is. Law is a codified or an existing set of rules that determines the owners of scarce resources when there's a dispute over these resources. Now, the natural set of rules it tends to emanate from the common law and from human interaction in human society is very simple. It's basically the Lockean idea, John Locke's idea. And you can summarize it this way. In the case of the human body, which is a scarce resource because they can be owned by either the person himself or by someone else, which is what we call that slavery. The libertarian answer and the common law answer and the traditional answer is, the default is every person owns himself. Okay, that's the answer, unless something happens like a crime of murder, self-defense, something like that, but in general, everyone is the default owner of their body. That's the first property rule. And then for everything else in the world, that's a scarce resource, every external resource that there is that was one time, that was at one point never owned, that it's previously unowned. For these things, the things that we need to employ, land, animals, wood, materials, food, these things, we determine the ownership in the case of a dispute by three rules. The first one is original appropriation. This is the lock-in idea of homesteading. That is, all things being equal, if two people have a contest over a resource, the first person to use the resource has a better claim than the other. Unless rule two, it was transferred by contract. Okay, so if I own it because I got it first and I give it to someone else by contract, now they have a better claim than me and then the rest of the world. And then a third or subsidiary thing would be transfer of property because of a tort. If someone harms someone else, then they owe them restitution or rectification and some of their property can be transferred from them to the other person to rectify the harm that was done. But those four rules, self-ownership plus in the case of external resources, original appropriation, contractual, consensual transfer, and transfer because of rectification are basically all the four rules of all law. All legal systems originate from these things. Now what distinguishes libertarianism from other, even the common law in classical liberalism is just a more hyper insistence on consistency for these types of rules. So therefore, we're really, really passionate about self-ownership and about, we reject the idea of the hypothetical contract between people unless they actually had the agreement. But the core of the common law and the private law that even you're studying now is rooted in these basic principles. Okay, now, before we apply this to IP law, let's just quickly understand where IP law came from, the history, okay? You can go back as far as about 500 BC. There was in the Greek city state of Sibiris, there was some culinary competition and there would be a competition who had the best recipe for a dish and whoever won would have the monopoly right for one year to be the only one who could cook that dish. So you can see the beginnings of this idea of someone having a monopoly on some idea they come up with that other people like or that's useful. Fast forward a little bit, you started having this practice in the say 14, 1500s of monarchs granting what's called a letter patent, a letter patent, which means patent, the word patent means open in Latin. So it was like an open letter, an instruction from the king to the world saying, this guy is the only one who has the right to practice this trade in this region, right? To sell sheepskin in this area. So it was just a monopoly grant. It was anti-competitive and it was just a favor handed out by the king to someone in exchange or something they had done for the king. This problem got out of hand and in Britain in 1623, the parliament passed the statute of monopolies to rein this in. And so they restricted the king's ability to grant these monopolies, these monopoly privileges, but they kept enforce the ability of the king to grant monopolies for inventions. So, and then in 1789 when the US was founded in the copyright and patent clause, this right of Congress to enact a similar thing to similar to the statute of monopolies was kept alive. Copyrights originated, look, the church and the state controlled thought easily before the invention of the printing press, right? The scribes are all members of the church or government under government control so that the government could control what was being printed. When the printing press came about, it was a threat to the state and to the church because they didn't want the people getting mass produced books without permission. We know what the government having an approval first. And so the government starts the stationers company, we're talking England now, which had about a hundred year monopoly. And finally when that expired, there was a debate. And so the statute of Anne was enacted in 1709, which is sort of the genesis of our modern copyright law. So you can see that copyright law that we have now originated in censorship, that is the control of thought, and patent law originated in the grant of monopolies, which are anti-competitive. And of course, this is the way they work now, although what happened was in the 1800s, the free market economists, when they saw the emergence of this modern type of patent and copyright system that the US started and then the Western Europe started enacting, the free market economists started saying, wait a minute, these free market, these government granted privileges are getting out of hand. They're contrary to the free market, they're contrary to private property rights. The industries that had grown up around these monopoly grants and had become dependent upon them like the publishing industry and certain companies that made inventions, they fought back. And the way they fought back was they said, it's not a government granted monopoly privilege, it's a property right. And everyone said, it's not a property right. Property rights last forever. Property rights are property rights in tangible things. And so the defenders of the IP system said, well, it's an intellectual property right. It's a creation of the mind. And when they did this, they used a combination of two types of arguments, utilitarian arguments which are pragmatic and sort of consequentialist, empirical and deontological or principle arguments basically rooted in the Lockean conception of our natural rights, okay? So let's go quickly through the utilitarian argument. The basic utilitarian argument, and you'll hear this today, and this is the predominant argument most people use today because everything is utilitarian, is that there is basically market failure. They won't put it this way because they don't wanna seem like, they don't all seem like they're criticizing the market because most people today would think that intellectual property rights are a type of property right that's part of the capitalist Western system. And it went along with American and Western prosperity since the 1800s. So they think it's a natural part of the market. And it is true that people trade these rights, they sell them all the time. So most people think this is natural. And so the argument is that without patent law and without copyright law, there would be a so-called underproduction of creative goods because there wouldn't be enough incentive to do it. And the reason is because unlike physical goods or tangible goods or corporeal goods as we say in the civil law, it would be too easy for people to compete with you, okay? So the idea is that if I have a car factory like Henry Ford, it's not easy for someone to make a competing car company. It's fine if they compete with you eventually, but that's just part of the free market process. But if my product is a book or a map or a painting or a computer program or a new carburetor design or a pharmaceutical, as soon as I start selling this, then the key part of the value is the way it's arranged. And that is a pattern, that's information. And that can be easily duplicated by competitors. And therefore they're gonna compete with me right away and I won't be able to sell my product at a monopoly price long enough to recoup my research and development cost. That's the basic idea. And therefore we need the government to come in and fix this market failure and give people monopoly rights for a limited time so they can recoup more of their cost and there's more incentive to engage in these activities in the first place. This is the basic utilitarian idea. There are so many problems with this notion. Number one, it's totally unprincipled, but let's just talk about the burden of proof. When you come up with a system that is a derogation from the common law rights, from our natural rights, from the free market, you would think the burden of proof would be on the proponents of this. Now the founders didn't have any empirical studies to prove that patent and copyright would benefit the free market or make us wealthier. In fact, they originated in anti-competitive monopoly grants by kings and pro-censorship restrictions on free speech by the church and the crown and copyright. So they basically had at most a hunch. The Constitution doesn't require patent and copyright. It only gives Congress the authority to issue patent and copyright laws if they want to and they did the very next year. By the way, there's also an argument you could make that patent law is clearly constitutional. I don't deny that, although that doesn't make it right, my opinion. The Constitution recognized lots of things that are wrong like taxation and slavery. But copyright law, you could argue that the copyright clause was enacted in 1789 when the Constitution was ratified. Two years later, in 1791, when the Bill of Rights was ratified, the First Amendment restricts the Congress's ability to restrict freedom of speech and freedom of the press. And the Supreme Court has long recognized that copyright law clearly does infringe freedom of speech and freedom of press because it literally prevents people from printing or saying what they want to say. So what the court has done is the court is balanced. They said, well, we have attention in the law. We have to balance it, sort of like antitrust law versus patent law. Okay, but as you all know, there's a candidate of interpretation of statutes and constitutional provisions that has the later provision that is enacted can override in earlier on, which is why prohibition of alcohol is now overturned because the later amendment came later. So you could argue that the First Amendment in 1791 came two years later under a different Congress and to the extent there's a conflict between copyright law and free speech and free press rights that the free press rights, the First Amendment has to prevail. And the court has just dismissed that argument because it would be too disruptive to overturn copyright law based upon the First Amendment. In any case, we'll go with that. And by the way, trademark law is not authorized in that clause, which is why the trademark statute, the Lanham Act, is held to be valid under the Interstate Commerce Clause, and which is why states still have their own trademark systems because federal government couldn't quite preempt that. Okay, so in any case, the problem is that, as I said, the burden of proof needs to be on the advocate of intellectual property. Have they fulfilled that burden of proof? They didn't at first. Now, there's a famous economist, Fritz Maklop. He's kind of an Austrian leaning economist. He was hired along with Edith Penrose in the 50s by Congress to do an extensive study on the patent system. And what he concluded in an officially authorized study for Congress, no economist on the basis of present knowledge could possibly state with certainty that the patent system, as it now operates, confers a net benefit on society. So what he concluded was that if we didn't have a patent system right now, there'd be no evidence to justify instituting one. And in the meantime, there's been French economist Levoque and Menere. By the way, I'm gonna post this on my website. So I'll have these notes there. If anyone wants to follow up on this. French economist in 2004 said that an economic analysis of the cost and benefits of IP law is no more within our reach today than it was in Maklop's day. Boston University Law School professors, Besson and Moir, who are economists, they concluded in 2008 that on average, patents place a drag on innovation. And the economist, Bolger and Levine, who studied this issue in a ground-breaking work called Against Intellectual Monopoly, and they started this research hoping to defend patent law. And they concluded that it's totally indefensible. They argued that the case against patents can be summarized briefly. There is no empirical evidence that they serve to increase innovation and productivity. Unless you equate it with the number of patents awarded, but that's just circular reasoning. Okay, so the utilitarian case fails, but I'll be honest, as a libertarian, I would be against the patent system and the copyright system, even if the utilitarian case made sense, because it's just wrong. It's just like the argument against the minimum wage or anti-trust law, people have a right to collude. People have a right to offer someone less than the minimum wage for a job. That's a fundamental human right. It's a property right. The utilitarian arguments always have to come second. Now, when the utilitarian argument fails, people resort to what was the sort of original argument, the natural rights argument, the Lockean argument. And by the way, Locke did not endorse, Locke did not believe that his natural rights theories implied patent or copyright. He was loosely in favor of copyright as a utilitarian measure, but his theory of property, even he didn't think that. The problem I believe is that John Locke made a mistake unintentionally, but the way he formulated his argument and it has led to unending human misery and even death since. John Locke argued this. He was trying to argue against the monarchical system before and Fillmore's argument. John Locke said, listen, governments are here to serve us. How did he argue that? God gave earth to the humans. Every person owns himself because God gave him control of his body. If you own yourself, you own your labor. If you own your labor, you own what you mix with it if no one else owned it first. So this is the labor mixing argument of Locke. This is the natural rights argument of Locke. Unfortunately, I think his argument was flawed in that he didn't need the labor step. He didn't need to say you own your labor because you don't own your labor. Labor is an action. It's what you do with your body. You do own your body, but you don't own what you do with it. So that mistake led people to think of labor as a substance, as a thing that you can own, which has also led to some people believe to the labor theory of value, which led through Smith and Ricardo to Marx, and then to communism. And of course, communism led to lots of destruction and death and human immiseration in the 20th century. I'm gonna skip my alternate theory history that Locke's views have led to, I'm gonna skip my excursion that we have global warming now because of Locke, because we don't have thorium energy because we had plutonium energy because the military needed to, I mean, we had uranium because the military needed to make plutonium for nuclear weapons because of the Cold War, which is because of Marx, which is because of the labor theory of value, which is because of the labor theory of property. Well, that was it in a short, in that show. Okay. There's one other argument some law professors make, unfortunately, to quasi-libertarians, Richard Epstein, who's a libertarian, and Adam Masoff, who's an objectivist law professor, and others, what they argue is that, oh, you libertarians who are anti-IP, you're wrong. You're wrong to say that IP is some artificially government-created right. It's a natural right. Thomas Jefferson thought it was a natural right. John Locke did, which is all totally wrong. Jefferson and Locke did not think it was a natural right, and even if they did, they were just wrong. But what they argue is that patent rights and copyrights, they're very much like classical natural law, common law, property rights, because you can trade them, you can rent them, you can bargain for them on the market. Yeah, of course. But during slavery, we could buy and sell humans too. There's a whole body of case law during the shadow of slavery day, during the end of the antebellum South. So what? What the law does and what the law can do doesn't show what the law should be. I'll wrap up quickly. What is the future of IP gonna be? I would just say this. The birth of the internet is a great thing because the digitalization of information, encryption, torrents, the internet has made copyright enforcement very, very difficult. It's made piracy rampant, and that's a good thing. The more we can undermine copyright law, the better. And my hope is that the more 3D printing becomes a thing, the same thing will happen to patents. So hopefully the technology and the free market will undermine these systems. I'll conclude with a quote from Thomas Payne. A long habit of not thinking a thing wrong gives it a superficial appearance of being right and raises at first a formidable outcry and defensive custom, but the tumult soon subsides. Time makes more converts than reason. Thank you. So this is a bit of a strange assignment for me because Mr. Cancelo has made an argument against intellectual property on libertarian premises. I have not too much to disagree with about aspects of his conclusion. So I'll say a bit about that in the beginning, but of course, not of course, I entirely don't accept the premises. So it's kind of a bizarre thing. I actually more or less am sympathetic that the case for intellectual property rights is in fact much weaker than is commonly thought, both on instrumental grounds and on principled grounds. And I also agree that the issue is very important. I also agree there's massive overreach today. So on all of these, we agree a lot. And so it's not really clear what I should say about that, but my basis for thinking this is entirely different than his. And I guess where we disagree a lot is on his basis. So I think I should say more about that than about the fact that I also agree that Machlup's conclusion in 58 has not been challenged to this day that the overall case for intellectual property rights on an instrumental or economic basis has always been and remains even at best, that there's many costs of intellectual property rights from an instrumental economic basis alongside their ostensible incentive benefits and that at best patents and copyright may be justified on an instrumental basis in a few specific areas where the cost of production are very high and the cost of reproduction are very low, ostensibly patents and movies and biotech, but maybe not even there and we could talk about that. So I kind of agree with all that. So I don't really wanna push on that too much. The reason I agree though is that for me intellectual property rights, you have to begin with the basic idea that they are rights to exclude others from using a resource, information or knowledge or culture, which resource is intangible and because it's intangible it's non-rival and because it's non-rival many people can use without anyone degrading anyone else's use. So it's really unfortunate, unfair to restrict access on that. I'm not sure but I don't know if I heard in Mr. Gonzalez talk any point what the actual burden or harm of IP rights is. So for me that's the, I think you might have not, I mean I think your view is that it interferes with the property rights of people but you didn't sort of cash that out here I think so you might wanna speak to that a bit. For me the harm is that it restricts access to something which once created should be available to all because it does not derogate from anyone's use that others share it. That's the miracle of intangible resources. Having said that there is both fairness and incentive arguments for why the creator might be owed a decent return for the effort that went into creating something that's socially valuable and that if we don't give that decent return it might be that others will be discouraged from doing so and we might get less innovation. That's my basic very modest framework. Access restrictions on intangible resources are a default bad idea but some way of generating those resources may be required through some legal policy to promote fairness and robust production, robust innovation. What the ultimate principle basis of that is we could explore and I'm happy to discuss but it's this mix of sort of basic ideas of wide access and fair returns that motivates my view that intellectual property rights like some other innovation policy mechanism should be evaluated in terms of how well they enable wide access and robust production and fair equitable returns. And on that I'm not committed to intellectual property rights as being the best scheme or how strong they should be. My own view is that current rights are through the roof way too strong. There's a massive overreach there's a very clear political economy story why that happens, it's completely unfortunate and it's expanding to this day and what's happening on the internet with criminal enforcement and so forth makes it all even much worse. So on all that we I think are not too far apart although one could have various sort of modest disagreements but where we disagree is sort of the foundational basis of our positions and so on this I don't have much time so I'm gonna just try to say a few things. So Mr. Cancelo has what he claims is a sort of libertarian principled position based on natural rights arguments. Now to me there's a few problems with this. First of all it's always puzzling to me why it's called the libertarian position when it's really the propertarian position. It's not about freedom it's about property rights. Well then say that it's a propertarian position it's not about an unvarnished principled commitment to freedom it's about the guiding motif being something called property rights. Now on the idea of property rights I just wanna say three things and see if I can get it in in this time. First the idea that all, so first of all natural rights. I've never understood what people mean when they say natural rights. To me rights are claims against others. Mr. Cancelo seems to agree. There are no rights on a desert island by yourself. Rights are claims against others. Rights are social relationships. Now the basis of those rights can be in various different kinds of arguments. Those are arguments. Calling them natural is just cheating. Where do they reside? They're not your eyesight. Eyesight might be natural for some. To call something natural is a dishonest way of trying to get pre-modern warrant for a normative argument as quasi-non-normative. It is in a word bullshit. There are rights which we can respect based on reasons. We have to give reasons for those rights. When the reasons are given they can be more or less persuasive. Calling them natural does nothing to the argument except try to convince you that it's not a normative argument at all. It's like a physical act. Well, there's a chair there, don't you know? Well, okay, good. But that doesn't tell me about whether the chair is nice or not nice. Pleasing or not pleasing should be sat upon or not whose chair is it and so forth. Those are normative arguments. Historically, until about 17th and 1800, normative arguments were couched in the language of time immemorial, divinity, revelation and so forth or something called natural right which was a fusion of them. Natural reason, according to Locke and the second treatise. Ultimately, natural reason is just reason and I'm fine with arguments from reason but putting this label natural on it as if it's not any longer something human, something social, something historical, something normative is a cheat. Pure and simple. It's an attempt to deny the inescapable reality that rights are social relationships which we have to argue about to determine which interests merit protection over which other interests. I have no problem saying the arguments should be grounded in something called right reason of the second treatise but then you have to tell me what the premises and principles of that right reason are. So let me go to that second point. On that second point, the idea that all rights are property rights strikes me as patently bizarre. Either it's gonna be thought logistically true because we're gonna empty the concept of property rights of any content and meaning in which case what's the point of the exercise or it's gonna be false because I don't understand what it means to say that my interest in being able to express myself is should be protected as a right against other people's interests and not hearing what I say and being able to violently stop myself from speaking. Oh, well that's really a property interest because you're using your vocal organs and you own them. I don't know what that means. I don't know how that helps anything. I don't know what that means except to illicitly try to reduce all human interest to the logic of the market. And that's to me a very historically specific, recent phenomenon, libertarians or what I call proper terrients think it's somehow time and memorial, they're just wrong. There are no such arguments until very recently on the stage of history because the social form that those arguments track is very recent on the stage of history. Proper terrient mindsets are the mental expression of people who live in capitalist societies. That's fine, but that shouldn't be then naturalized into some sort of trans-historical human phenomenon through the gobbledygook of natural and blah, blah, blah. It just doesn't make sense. It's dishonest, it's patently absurd. The argument should be made on their own terms not with the invocation of unhelpful metaphors which try to hide the ball. Last point, the rights of property that are being claimed as absolute and sacrosanct here are the rights in one's body, self-ownership and the rights in external resources based on first occupancy, fundamentally, in this contract and rectification. But that's a very strange argument, first occupancy. The first person who delimits or does something that no one else has done now has it. Locke never made that argument fully. He thought that that argument by itself was too thin a read and he was right because of course by itself that can't be enough just being there first. What if you're there first in a lot of places and you don't leave enough and it's good for others? Well, there's a problem. Locke understood that. The authoritarian literature has struggled with this from the beginning. How do you deal with the inbuilt limit on property rights in external resources based on the enough and it's good proviso? There's a whole industry talking about this. What does it mean to be born into an earth that's already been occupied and owned by everyone? What is all this about? And fundamentally, I can't really argue against this. In this time, I'm happy to argue against it at length but I just wanna leave you with an idea that fundamentally this whole mindset is a bizarre idea that humans are born fully formed self-autonomous beings at birth. They are not. They are born vulnerable, fragile, deeply dependent social beings all the way down. Adults at some point in a market society come to resent this reality and deny it deeply by pretending something else is the case and then invent a series of fictional just so stories which none of which have any grip for anyone who's not already in the grip of the idea, the infantile desire to escape the reality of society and history and go back to some pre-mortial fictional story in which there are absolute right sacrosanct between self-governing sovereigns who relate to each other as pinball machines and can't define their rights in any plausible way. There is no such thing, period, as an absolute right because rights are social relations and to have an absolute right would mean to have an interest protected against any other interest absolutely and that is conceptually and institutionally not on the cards. Okay, awesome. Thank you. Thank you. I'll try to speak for five or six minutes and leave the room for Q and A. How about that? Yeah. Exchange and then right. I really appreciate the responses. I've done several debates that's the most intelligent response I've ever gotten which is probably why you're probably somewhat anti-IP. If we had two hours each we could go into this in more detail just quickly. The harm of IP is in terms of copyright They're people in jail, Aaron Schwartz committed suicide, facing penalties, people die, and the culture is distorted, their censorship, and freedom of the internet is threatened. That is a huge thing. Internet is one of the most important tools we have against state tyranny, and when the government threatens internet, internet freedom in the name of copyright, it's a big problem. So that's the harm of that. The harm of patents, I believe, it has slowed down innovation, and human progress depends upon the accumulation of knowledge over time. You can't have those harms. You only need principal harms. So give me the principal harms. You've got to have principal harms. You can't have instrumental harms. Well, your criticism about natural rights, I agree with a lot of what you said. I tried not to rely upon natural rights arguments. I'm using the word natural as a shorthand, but actually I agree with Hans Hermann Hoppe's argumentation ethics and the more dialogical arguments for liberty, which sort of agree with the is-ought problem of the standard natural law argument. So I would take a more libertarian take on the Habermasian type of arguments. Okay? Yeah, of course. That was Hoppe's PhD advisor, Habermas and Appel. That's great. So I'm trying not to rely on natural, but I do think that there is a way to use the description of the natural position without having a loaded argument. And Mises did it. Hoppe does it. There is, and Rothbard did it. There is a natural position, and you can describe that natural position. And then you can make reasoning based on that. I think my case, when I have more time to do it, and in my writings, is based on reasons, and I agree with your appeal to right reason. I have used the word properterian before. The problem with that is that term has been co-opted by some alt-right guys. So I don't like to use it. And also, as I said, every legal system on earth believes in some form of property rights. So I think the question comes down to who gets the property, right? And that's the libertarian distinction. I do agree with you that rights are justifiable claims and that you have to use reasons to adduce them. Now, you talk about being dishonest. I do agree that when you assert the word natural, you can bend the needle. But what's really dishonest is calling government-granted monopoly privileges intellectual property. It's not property. And you are correct to identify the locking and proviso as a potential snag in our arguments, which is why those radical anarcho-capital libertarians of us completely and utterly reject the locking and proviso. So I have written in print, and so has Hapa and others, that why we disagree with the locking and proviso. And I do think that original appropriation is good enough because it establishes a link between one person and the resource, which is an objective, intersubjectively ascertainable, there's the hypermise for you, link between a person and a resource, which gives him a better connection to it than anyone else. Now, as for this hypothetical previous state, as you know in the law, we don't have to trace title back to Adam and Eve or the Garden of Eden or even to the sovereign to settle a dispute. When there's a dispute between two people in the real world, they go before a tribunal and A and B both claim this resource. And all you have to do is trace back to a common ancestor. This is what the law does, the civil law and the common law both do this. So you basically have to go back to a common ancestor. You can stop there. It doesn't matter how that common ancestor got it because from that point on, you go back four or five generations, you find the grandfather who had it, and then you see what he did with it and who gets the best title from there. So the law is about better title, which is relative. It's not absolute. It doesn't need to be absolute in practice. I'll stop there. Almost everything you spoke about, I've written on in more detail on my website, and I'd be happy to take questions either now or by email later. But just go to c4sif.org, which is my website. I've got tons of material there which elaborate on all of this. Thanks. Sure. And if you want to speak on that too. Yeah, the the ontological argument is that, is the Lockean argument that we own ourselves and therefore we have the, I think there's a confusion. There's a confusion between economic concepts and legal concepts. Okay. So economically we trade. Economically we profit from our labor. Economically you can say you sell your labor, which is simply a legal way of describing the motivation for engaging in labor or in action. So you get rewarded for it. Someone gives you something in exchange for it. That makes us think legally that, you know, if I trade an apple for an orange with someone, titles being transferred, I'm selling the apple. Someone's selling their orange. I'm buying the orange for my apple, etc. If I get paid to paint someone's fence, then we think of that as a sale too and we legally, we restart thinking of the thing that was sold as an object that you must have owned. You must have owned your labor. So the idea is this idea that if you work hard in a free market system where everyone's rights are respected, you are going by and large to profit from what you do. So people start thinking that you have a right to profit from what you do, which is why one thing I disagree with and what you said professor, the idea that you're owed a right of return. I don't think you are ever owed a right of return. You're not ever owed a right to profit, but this is the idea that hard work, this marriage is almost a Protestant idea. If you work hard, you're entitled to some compensation. I don't think that's true at all. Someone who's an entrepreneur and we're all entrepreneurs, every action we take is entrepreneurial in the sense that we're predicting the uncertain future and we're trying to make up a psychic profit and what we do, we might fail, we might succeed, but no one is obligated to fulfill that for us. If I start a new restaurant, a new hamburger chain, thinking that this is going to be a hit or a new pizza delivery thing and someone's going to compete with me pretty soon. So I might be able to make a lot of money for a few years and the competitors are going to come in, they're going to imitate me. I'm not entitled to those customers. When people say, he stole my customer, they sometimes take that word steal too seriously or he stole my girlfriend. I don't own my girlfriend. I don't own my country just because we use the word money doesn't mean there's really a title relationship there. So language is really key here. We have to be careful about metaphors and how language is used ambiguously and unintentionally or intentionally for equivocation. So the principle argument is that, here's the principle argument. It's the idea that if you create something, you own it, okay? And the idea is that, well, I created a symphony. I created a novel. I created a new design for a carburetor. And therefore I own it, I can control what people do with it, which is why a professor called it a resource and excluding a resource, economically it's not a resource. It's an idea. That's why I use the Mises idea of praxeology to distinguish between the use of scarce means or scarce resources. These are corporeal, tangible, material things as opposed to information. Okay? So the idea is that if you create something, you should own it. And they make the analogy to Locke's idea which is sort of sloppily formulated. So people think that creation is one of these sources of ownership, which is why I specified the three I did, original appropriation, contract, and rectification. You notice that creation is not one of those. Creation is actually not a source of ownership. This is the mistake everyone makes. They believe that if I create a chair, I own it. That's not true. I own the chair because I own the raw materials that went into the chair. I had to own them first to own the chair. So creation is a source of wealth. That is, I take a resource that I own. I rearrange it into a better form. It's more valuable to me or to others. It makes the wealth of the world higher. But you don't own wealth. You don't own subjective value. You only own the underlying material. That's the scarce resource. Conversely, if I didn't own the raw material that I made the chair from, like I'm an employee at a factory and I'm making the chairs for my employer, I don't own the chair that I produce. So creation is neither necessary nor sufficient which, by the way, is part of the Marxian mistake. So Marx thinks that employees are exploited because they're labor, right? They're not getting fully compensated for the value they put into the chair because they're labor. So this whole idea of labor ownership locks use of the labor in his argument is a mistake. And so the fundamental mistake, and I've called this libertarian creationism, the idea that creation is a source of ownership is a false idea. Once you believe that, you can say, well, if creation is a source of ownership for things, creation is a source of ownership for poems or novels. So I reject creationism as a source of rights utterly and completely. Aren't exactly. I mean, I'm not sure I even know what a response was to respond to. Do I think that people deserve, as a matter of fairness, social recognition and returns for meaningful contributions to society? Yeah. Do I think that's a right? Well, I don't think there's any magic to that. To me, RIGHT has no magic. It's just a label for a normative argument based on reason. That's it. Now, do I have a comment on the Marx thing? Well, not really, because that's not what Marx thought. That's what Ricardo might have thought, but not really. Marxist have thought that and you're right about that. Marx himself never had any interest in lock-in-desert theory of any sort. And you can tell that on the issue of national rights, I'm wondering, is this agreement here? Is it just like a verbal thing, just like a word? I feel like you think it's sometimes I'm finding something other than it being like a something-based and factual reason. Sounds like factual reason. So let me just be clear. I think the word natural rights has mental blocking properties. The minute you say natural right, you've made it seem as if you're making an argument. A, of individuals outside of society, all rights are social. Here. That's just the truth. There's nothing to do about it except crap. But that's what it is. All rights are social. No, no, no. But natural rights theorists have, for most of history, argued that natural rights can be justified in unilateral or individualist ways. Anytime you get an argument that justifies someone's rights in a unilateral or individualist way, without taking into account competing bilateral claims, it's someone who doesn't understand what a right is, conceptually and institutionally. And that misunderstanding is facilitated by the rhetoric of natural, which has had historically that role. Second, natural also has the rhetorically loaded character of inviting you to believe that this is something you observe as a empirical claim, rather than something that you argue for as a normative claim. The minute someone says, yeah, of course, all rights are social and normative and backed in normative reasons, we're fine. Then the word natural plays no role. If you say, well, that's what everyone means, then my question is, well, why use the word natural? What does natural add, except to say, certain reasons do not depend on their recognition by a certain contingent legislature? Well, that I agree with. Of course, I absolutely believe that rights are not just a conventional positive legal rights that a legal system may or may not recognize. Of course, I agree we all have the right and obligation to be critical of the existing rights of a legal regime according to reflection and reason. Of course, that's right. Anyone who doesn't think that besides, you know, Bentham is crazy. But that's a different view. The word natural doesn't add anything. I claim the word natural does more work. But if you accept that rights are reason-based and dialogic-based and Habermasian-based, then we have no methodological agreement, disagreement on that question. I just think it's good to drop the word natural and using not to disagree that. I don't disagree. I agree with most of what you said. If you want to look into this further, look at some of the stuff on my site with Hoppe and argumentation ethics and Hoppe's criticism of natural rights reasoning. A funnier one, by the way, is Robert Ant and Wilson had a book called Natural Rights or Don't Put a Rubber on Your Willy. So he was sort of mocking the Catholic Church's natural law stuff which is related to natural rights. The idea that you're going to extend what's been said by the church in history as an argument for what normally should be. So I agree with him that you can't go from an is to an ought. So that's one problem with the classical natural rights argument. And the other is that it's