 Ready to start now? Okay, let's get started. Good morning, everybody. My name is Stefan Kinsella. I'm a patent attorney in Houston, and I'm a longtime libertarian, writer, thinker, et cetera. And I am a strong opponent of intellectual property, which some of you, me know, even though that's what I do for a living. So, I give a lot of talks on this topic, and I've approached it different ways. Today's going to be a little bit different. What I wanted to do is just lay out the basic argument against IP. Just take a couple of minutes, because the case is pretty simple, actually. And then what I want to do is just go through one at a time all the arguments I've heard over the last, say, 17 years. And I think I've heard them all. And I think explaining what I believe is wrong with these arguments will help you understand the case against IP in a deeper way. So today's talk is entitled Intellectual Nonsense, Fallacious Arguments for IP. I do have a PowerPoint I provided. I'm not going to show it. I will put it on my website later. You can go to c4sif.org for more information on what I talk about here. More articles on intellectual property. If you want to go deeper, talk to me later, email me. Be happy to respond. C4sif.org stands for Center for the Study of Innovative Freedom, and it's basically a website which I call a think tank. So, and I want to point out one thing that Roderick mentioned to me, which is ironic, is that this speech has been given in the licensed or Spooner room. And when Spooner, who is fantastic, on almost every issue except intellectual property. So it's a little bit ironic that it's in this room, but so be it. So, yes. I do. Test, test. Oh, okay. I'll speak up then. All right. Okay. Did everyone hear what I said so far? All right. I'm going to lay out the case against IP very quickly. Then I'm going to respond to common arguments I've heard for intellectual property over the last 17 years that I've been an IP abolitionist, basically. So I would say that the basic argument against intellectual property, aside from the fact that it's a state legislative law, which couldn't exist in a free society with no government, is that it basically is totally incompatible with private property rights and individual rights. The basic libertarian position, as I understand it, and believe is basically a set of principles, self-ownership, which means each person owns his own body. And second of all, the basically lock-in idea of homesteading, which is that for any scarce resource in the world that is any tangible item, anything that exists over which there could be conflict, right? Over which there could be dispute. The libertarian solution is property rights are assigned in that scarce resource in accordance with whoever first used it or whoever acquired it by contract from a previous owner. So basically the libertarian argument is that every scarce resource in the world can be identified as having an owner, and that's either the person in the case of a body or the person homesteaded it. And the problem with intellectual property rights is this. It takes a while to understand this because there's several types of intellectual property. There are patents, copyrights, trademarks, trade secrets, boat hull designs, database rights, moral rights, semiconductor, mass work protection, defamation law if you count that, which I do. It's a type of IP. And it's a highly specialized and arcane field of law which only certain specialized lawyers really understand. So it's hard to get an understanding of what is really in common between these types of rights. Why are they called intellectual property, for example? And I think the best way to think of it is what I've come to, and let's focus on the two biggest and most egregious types of IP, patent and copyright. Briefly, patents give an inventor a monopoly right in an invention. Copyrights give an author, let's say, of a book, a monopoly right in that pattern of information. Both of these rights, I believe, should be classified as what we call in the civil law a negative servitude or in the common law an impertinent easement. So basically they give an owner or the holder of the IP right a veto right over how other people use their own scarce resources. Okay, so if I have a patent on sliding to unlock an iPhone, I can sue Samsung, use the government force to say you are not able to use your own property in a certain way. So it's a veto right. Now, there's nothing wrong with having these veto rights. This is commonly done in, say, restrictive covenants or a neighborhood association. You can think of it this way. You own your home. Your neighbor has a co-ownership right in your home with you to the extent that he can veto your painting your house purple, let's say, if you have an agreement. So there's nothing wrong with these types of divided ownership if they're done consensually and voluntarily. That is, if you sign an agreement. But in the case of patent and copyright, the owner of property who now is subject to a veto right from another person never did sign a contract. So the government just grants this negative servitude, which is a property right to someone which gives them a property right in other people's property. And that's basically the problem with intellectual property. It's completely contrary to free markets, competition, private property rights, and the libertarian understanding of homesteading. Now, I find Mises' praxeology his way of looking at human action to be sort of the most helpful way to understand the role of property rights. The basic idea is that humans act, which means we employ scarce means in the world to try to change the course of events. To do this, we need knowledge as well. You have to understand the laws of cause and effect. You have to understand what means will achieve the end you desire. So successful action requires the exclusive control of scarce resources and it requires knowledge or information. Knowledge or information is not a scarce resource. So if you just take a simple example, someone wants to bake a cake. They need a recipe. That's knowledge. They also need ingredients and capital equipment, a bowl, an oven, place to stand. Only one person can use that bowl and those ingredients at the same time. That's why we have property rights in those scarce means, so that it can be used peacefully and productively. But the knowledge can be shared and used by a million people at once. You could have a million people in their own homes using the same recipe at the same moment. This is fundamentally why it makes no sense whatsoever for there to be property rights and information. As I just mentioned, the only way to assign property rights and information is really to give someone a partial ownership right in other people's already owned scarce resources. Okay, so that's the short argument against intellectual property. Now, over the years, I have heard so many arguments. I will go through a few of the really outrageous stupid of serve ones first that are kind of amusing. And by the way, let me mention, in my understanding, my impression, it seems to me that in the last, say, 10 years, the tide has really turned among libertarians in the IP issue. Most libertarians that I'm familiar with are strongly anti-IP now. And they also understand what an important issue it is because of the threat to internet freedom with SOPA, PIPA, things like this. Extra writing, foreign students to face federal prison for linking to the wrong websites, etc. And I think this is especially true in my experience among Austrians and anarchists and left libertarians to their credit. The whole doubts would be, sorry, utilitarians and randians. So here are some of the, just to get going before I get to some more serious arguments. This is what a patent attorney, his name is Gene Quinn, he's just a notorious patent shill. And what he wrote was, thank goodness the Swiss did have a patent office. That's where Albert Einstein worked, and during this time as a patent examiner, he came up with a theory of relativity. We need patents to have patent offices to employ potential geniuses so they have spare time to work on physics theories. Here's one, this is from William Sugar, who's an economist with the Independent Institute of Libertarian Outfit. He says, it's true that other means do exist for creative people to profit from their effort other than copyright. In the case of copyright, authors can charge fees for reading their works to paying audiences. Charles Dickens did this, but his heavy schedule of public performances in the U.S. where his works were not protected by copyright, arguably contributed to his untimely death. So we don't have copyright, authors may speak themselves to death, to get fees. This is a troll on the Mises list, if you're not for IP, you have to also be in favor of pedophilia. And another troll on the Mises list, if you oppose IP, you're basically advocating slavery. And another one, song piracy and file sharing are the cause of these recent stage collapses at rock concerts. Insurance companies were blaming copyright piracy for collapses of concerts. And another guy said that this is a commentator on TechDirt, which is a great site for IP. Copy left advocates are like homophobic, anti-gay marriage bigots. And finally, if IP is not legitimate, then it would be okay to steal other people's babies. Not really the most persuasive. On to some more serious arguments for IP, although honestly, I have yet to hear a good argument for IP. Most of the arguments are either rights-based or deontological or principled, we might say. But most are utilitarian or empirical or welfare maximizationist. In my view, they're both flawed, and I'll go through some of those today. So the first one I'd like to approach is, I think, is the fundamental reason why people have been found it difficult to understand this issue and to get it straight in their own heads. And why the libertarian movement even was confused for decades on this topic. It's what I call creationism or libertarian-properitarian creationism. And the argument is basically, well, don't you own what you create? Isn't that part of walking and homesteading? Isn't that part of libertarianism? If you create a valuable idea or pattern, I mean, who else should own it other than the creator? So one problem with this argument is that it assumes that ideas or patterns are ownable. So if you assume that, you say, well, ideas are ownable, then the answer, well, of course, the creator should be the one who owns it. But the problem is this is a confusion about the proper role of homesteading in the acquisition of property rights. In other words, it confuses the role of wealth creation with property acquisition. So people will say, there are three ways of acquiring property. You can create it, you can find it, or you can buy it from a previous owner by contract. But this is actually incorrect. There are only two ways. One is to acquire an unowned resource, which is by appropriation or homesteading. The other is to acquire it by contract from someone else. That's it. Those are the only ways to acquire property rights. Now, it is true that creation or intellectual effort or labor is a way of increasing wealth. But wealth is just making something that you already own more valuable. So if you labor on some physical resource, like you shape metal into a sword, now, you don't own the sword because you shaped it into a sword. You owned it because you already had to own the raw materials that go into it, the factors of production. If you didn't own it, you wouldn't have had a right to manipulate it to turn into a sword in the first place. So no ownership comes out of the act of creation in that sense, but you do increase the sum total of wealth in the world and for yourself because you make the object that you own more valuable to you, which is the same thing as saying we increase wealth. And I think one reason this mistake was made was some sort of metaphorical, overly metaphorical sloppiness on Locke's part, where he talks about when you mix your labor, he says we own ourselves, so therefore we own our labor, which right off, there's his first mistake, we do not own our labor any more than we own our actions. Or to say that as double counting, right? Because if I own my body, then of course I can use a tact. But to say I own my action would be like saying I own my jogging. It just makes no sense. But his argument goes, we own ourselves, therefore we own our labor, like it's some kind of mystical substance that you pour out into the world. And when you mix it with something unowned, you're binding part of your ownership or your patrimony with some scarce resource. And therefore you acquire that scarce resource. But I think that part of Locke's argument is totally unnecessary. You don't need to say you own labor to justify the ownership of an object that you've mixed your labor with. By mixing your labor with it, you have become the first one to visibly embroider it or appropriate it, thereby establishing a better claim to it than anyone else, just because you were first. So that part of Locke is confusing. Also Rand also has a sloppy, overly metaphorical way of talking about values. She talks about man has to create values. Well, value is a subjective thing. If you own an object, you might value it, or you might demonstrate that you value it. So you do create wealth, but all that means is you're transforming something, making it more valuable to you. We don't literally create entities called values that float around that you can homestead or own. So that is... In fact, Iran should have recognized this. Just like Mises and Rothbard, who did recognize this, Iran had a statement where she recognized that, I'll quote it here, the power to rearrange the combinations of natural elements is the only creative power that man possesses. It's enormous and glorious power, and it is the only meaning of the concept creative. Creation does not and metaphysically cannot mean the power to bring something into existence out of nothing. Creation means the power to bring into existence an arrangement or combination or integration of natural elements that had not existed before. So you see here Rand is actually recognizing the essence of production of creating wealth is to own some existing factors, transform them with your intellect, creativity, and your labor into something that is a new shape, a new arrangement. If Rand had stuck with this line of reasoning, she would have realized that it was totally incompatible with her arguments for patent and copyright, which are sort of a strange mixture of utilitarian and allegedly principled arguments. Because she's favoring 17-year patent terms, and I guess at the time, seven-year, so-year copyright terms, they justify this arbitrary finite length of time. No natural rights expired in 17 years. And this focus that Rand has on creating values and then you own the values that you create leads them to sort of minimize or dismiss the importance of scarcity. I had a debate with David Kelly, I think 1995 in his newsletter about this, and he basically wrote back to my criticism of Murray Frank's pro-IP views. He basically admitted scarcity is important, but it's not the only source of rights. So what he says is that there are two conditions required, this is what Kelly says, two conditions required in order to appropriate things in nature and make them your property. One, you must put them with some productive use, and two, that productive use must require exclusive control. So far, I agree. In addition, two holds only when the resource is scarce, but for things that one has created, such as a new product, one's act of creation is the source of the right regardless of scarcity. So you say when you say regardless of scarcity, that lets you talk a little bit sloppily and loosely about these values that you create. I created a value, it's out there somewhere. Who cares if it's scarce or not? It has value, it is of value, whatever that means. So, of course, the creator is the one who gets to own it. So they've lost the connection to scarcity, which is the only reason we need property rights in the first place. If we lived in the Garden of Eden, there would be no need for property. In fact, the idea would make no sense whatsoever. Oh, here's one I hear all the time. And this is probably our fault for using the word scarcity, which has multiple meanings. People will say, you know, I'll say, well, you can't own ideas because they're not scarce resources. And they'll say, oh, I don't know. Good idea is seeing pretty scarce to me. So, you know, this is their argument. It's just a quip is their argument. So I'll say, well, as we carefully define in our argument, scarcity for us means basically a rivalrous, right? A conflictable, a good that can have conflict over it. So if you change the argument to say, you know, ideas are not rivalrous, then they can't come back and say, I don't know, good ideas are pretty rivalrous. It makes no sense. Here's another one. This is more of a legal, sort of a legal, sort of a type of argument, which I've heard made by Adam Mostoff, who's a pro-IP objectivist law professor, and Richard Epstein, who is a somewhat pro-IP kind of utilitarian, libertarian law professor. And their argument is that how do you classify property, sorry, how do you classify intellectual property or patent and copyright? And they have these arguments that as a lawyer and as a legal scholar, you know, we classify different types of rights. They have a long argument about why you can classify patent and copyright as property rights. Yes, you can. So what? People can be property, too. It was called shadow slavery. So the fact that you can, a legal system, can classify something as property is completely irrelevant to the case about whether it should be property or whether it's just. And furthermore, I think their argument is wrong. They should not be classified as property, as Professor Bell has argued, but as privileges. And in fact, as Professor Bell was here, pointed out in a really clever blog post, there's the danger of treating patent and copyright as property rights is that some of the doctrines that rule this arcane body of law, which are purely statutory, and so, for example, there's fair use doctrine and copyright law. The reason we need the fair use doctrine is because copyright is so hideously unjust that we have to blunt its sharp edges so that people don't rebel against it. So, you know, you have all these exceptions to keep it from being too terribly harsh in some of its effects. So the danger is that you take these artificial exceptions or doctrines that apply to patent and copyright, and they would contaminate real property law. In fact, there is a scholar who analogizes property and land, let's say, to copyright and argues that just like copyright has a fair use exception, there should be a fair trespass exception so that, you know, you're entitled to use other people's property as long as it's a fair use, like in copyright. And there's a current case pending right now before the U.S. Supreme Court, which some of you may be aware of, in which the doctrines of copyright law are actually starting to contaminate property and physical things. And this is the case. It's about a foreign student who imported, I think, John Wiley textbooks from Thailand or some Asian country where their books are sold legally by the publisher but for a much cheaper price than on thinner paper. And he got his family members to send him the books to the U.S. and he just, you know, it's arbitrage. He just sold them for a discount here. He made a couple million dollars. And then he got sued for copyright infringement. Now, why? In copyright, there's something called the first sale doctrine. That is the idea that the person who holds the copyright, the publisher, is one bite of the apple. They make their money, their artificial monopoly price when they sell the book the first time. And after that, someone who owns the book, now, they don't have the copyright in the book, so they can't make a copy of the book. But they can sell that book, okay? Otherwise, the publisher could say, I didn't give you permission to sell that book. You're giving my copyrighted work to a third party and you can't do that. Well, the defense has always been for a sale doctrine. Well, in this case, in the lower courts, the courts said that in this case, the problem is that the books were sold overseas or made overseas. And the first sale doctrine, if you read the copyright statute closely, the first sale doctrine arguably is only triggered when the first sale is in the U.S. Now, what that means is that these books don't have the first sale doctrine. And what it means is that they can't be resold here. Now, if the Supreme Court upholds its ruling, this affects not only books, but that would be bad enough. Millions of books that are resold on Amazon lent out by libraries. You're going to have to have two types of books now. You're going to have to have the ones that have a mystical, invisible tendril back to Europe, you know, and then you can't resell those or even lend them out, maybe. And it can affect a property like a watch or a piece of furniture or a painting bought overseas. So how about an iPhone? Apple has this made in China, right? So ships to me in the U.S. if they make the sale happen in China, which there's ways they do that contractually, then the first sale doctrine doesn't apply. I can't resell this iPhone. It would be violating Apple's copyright by reselling it. So, you know, you're basically, you see how this veto right I mentioned earlier kicks in. Basically what's happening now is because of copyright, there's a very strong potential, a strong likelihood that the original copyright holder, who already got their profit from you when you made the sale, when they made their first sale, they can veto your right to resell property that you own, physical, tangible property. So we see another danger of treating IP as property. We need to quarantine it to the legal privileges of monopoly ghetto if not eliminated altogether. Now here's an argument I've heard many times and I think it's very insidious and it's important to figure this one out. So the argument is that, you know, the IP proponent, they will agree with you that yes, in effect the patent or copyright gives the holder a sort of property right in other people's property. Yes, it's a limit on what you can do with your property. But then they'll say, well, so what? No, property rights are never absolute anyway. All property rights are limited. You know, they'll say, for example, your right to your nose, your right to swing your fist into where my nose begins, which we all agree with. So here's the argument basically. It's okay to limit property rights because property rights are always limited. Well, first of all, that doesn't make any sense. Even if it's true that normal property rights can be viewed as a limit on property rights, which right away you can see that makes no sense. The fact that there are property rights means property rights are not limited. It's kind of a weird argument. I mean, by this argument, you know, you can beat the hell out of someone and then when they start complaining, you can say, what are you complaining about? All property rights are an absolute? All property rights are limited. So how can you complain that I'm beating the hell out of you? Let's just look at your body as being limited. I mean, there's no argument there whatsoever. And there's one of my favorite quotes from Atlas Shrug by Ayn Rand Francisco. And I'm reminded of this quote whenever I hear people say, well, property rights are an absolute. When I hear this, I'm thinking, hold on to your goddamn wallet because they're coming after it. And it's the line, run from your life from any man who tells you that money is evil. That sentence is the leprous bell of an approaching looter. And I agree with that. So when people start telling you, oh, property rights are an absolute, they're coming after yours. They're trying to reduce it. And here's the other problem with this argument. I think it's actually not true that property rights are limited. I don't know what it means for property rights to be absolute. I don't know what they're not absolute and they're not non-absolute. They're just the right to use property exclusively. But property rights are actually not limited by the obligation not to violate other people's rights. It's actions. Now, you think of it this way. Let's say I have a knife. Now, you have a right to not be aggressed against for me. Not to stab you without your permission, at least. Now, is that a limitation on my property rights and the knife? No. It's a limitation on what actions I can perform. I cannot perform the action of aggression. And it's easy to see this. Imagine if I don't own the knife. I borrowed it from my brother. Now is it okay? I mean, no. So in other words, ownership of the scarce means that you employ to commit aggression is completely irrelevant. It doesn't matter whether you own something. Another way to see this is if you steal my knife and you use that knife to kill someone, does that mean I'm the murderer? After all, it's my property that was used. So really there's no connection between ownership of means and the prohibition on aggression. The prohibition on aggression simply means you cannot perform this action. All actions have to employ scarce means, as Mises said. So it has nothing to do with whether the means are owned. So there's another mistake in that whole argument. So property rights are actually not limited by property rights. Property rights, actions are limited because of property rights. This is a little bit of a tangent, but I was reminded of this leper's bell thing and the property rights aren't an absolute argument with kind of an amusing set of responses to back in the late 80s, early 90s. Hans-Hermann Hoppe has an anarchist treat. He's called a theory of socialism and capitalism, which got a lot of attention in libertarian circles in the late 80s. And Lauren Lemasky, who is a Canadian libertarian philosopher who I had thought was an anarchist, but apparently he's not, had a very critical book review of Hoppe's book. And Hoppe's response, and I'm going to read Rothbard's response to, Hoppe's quoting Lemasky, it is, Lemasky laments, no less than a manifesto for untrammeled anarchism, for untrammeled anarchism. And Hoppe says, so be it, but so what? And then Hoppe explains, anarchism is just system respecting property rights, et cetera, absolute self or ownership, the right to homestead, the right to contract. And then Hoppe concludes, only someone advocating the trembling of private property rights would take a fits, as does Lemasky, with my attempt to justify a pure private property economy. This is not really on the IP topic, but it's the same idea that if someone is opposing untrammeled property rights, they must want to do some trembling. And here's what Rothbard wrote, and this is in Liberty Magazine, 1990, about a year after Hoppe's book came out. Lemasky is shocked and stunned that Hoppe is not simply a defender of the existing capitalism, his book is, quote, no less than a manifesto for untrammeled anarchism. Well, heavens to Betsy, anarchism, no one wonders where Lemasky's been for the last 20 years. Perhaps the knowledge is not yet penetrated to the fastnesses of Minnesota, but anarchism has been a vibrant part of the libertarian dialogue for a long time, as most readers of Liberty well know. Okay, let's talk about another argument for IP. What's the time? 15 minutes? 15? Okay. By the way, I've got 66 slides, and I want 17, so I'm not going to finish. There's a lot of bad arguments. However, I will put this PowerPoint on my website later, and I'm going to add some more links, so there will be tons of links if anyone wants to look this over. So there's an argument that... So most advocates of copyright, let's say, stick with copyright for now, they recognize that copyright can have a chilling effect to put it mildly on freedom of speech, freedom of press, in fact, so they admit this. Their argument is we need to have a balance. So this is the typical utilitarian, squishy, unprincipled, balancing bullshit. Now, the roots of copyright lie in censorship. The stationers' company, 1557, was given the monopoly over what books could be printed, and it was to suppress the wrong kinds of books being published that the church or the state didn't want published. That evolved into the Statute of Anne in 1710, which is sort of the genesis of the modern copyright system. So the origins of copyright are in censorship, and it leads to censorship today, literally. It has literally, in our lifetimes, led to people being put in jail for publishing the wrong books, books being seized and burned, movies being seized and burned by the state, literally. Now, I quoted William Sugar to a while ago from the Independent Institute. Here's another quote of his. He's pro-IP, and he says, to paraphrase the late economist Joan Robinson, patents and copyright slowed down the diffusion of new ideas for a reason. To ensure there will be more new ideas to diffuse. Well, thanks for being honest, you know? So they're ideas that we need to have a balance. So this is what the courts do. So we need innovation and creativity, which we have to have copyright and patent to induce, but it's got a chilling effect on free speech. Now, actually, I've got an argument that I believe that there's a good argument that copyright law is unconstitutional because even though the Constitution, when ratified in 1789, has a copyright and patent clause, well, first of all, the clause arguably has a limit, which says that to promote the progress of science and the arts, Congress can pass these limited monopolies. And there's been, as I'll get to in a few minutes, there had been no statistical proof whatsoever in the last 230 years that art and creation is promoted. So arguably, the law is unconstitutional by its own clause. But even if we forget that, if you remember, 1789, the Constitution was ratified. It's got the copyright clause in there. So arguably, Congress has the authority to pass copyright law, which they did a year later. 1791, the Bill of Rights is added to the Constitution. Bill of Rights has the First Amendment, which prohibits the federal government from infringing on freedom of speech, freedom of press. Now, the courts acknowledge, proponents of IP acknowledge that copyright law infringes freedom of speech. So the reason they try to balance it is they treat the First Amendment and the copyright clause as on a par with each other. They're kind of conflicting provisions in the Constitution, but we have to balance them because they're both in there. However, one was passed two years later. And the way it works is the later statute or the later amendment takes precedence, which is why we can have a drink right now. Right? Prohibition was ended because the Constitutional Amendment that undid prohibition came after the one that caused prohibition. The most recent one counts. So two years later, the copyright, the First Amendment was enacted. And in my opinion, they're completely incompatible. There is no way to have a copyright statute that doesn't significantly infringe on freedom of speech. So I think it's clearly unconstitutional. And I also believe that the statutory damages and the insane penalties people have to pay, which has no bearing whatsoever to the actual so-called damage of piracy, let's say, is probably a violation of the Eighth Amendment, banned on excessive fines. I mean, it's basically completely outrageous and it's a penalty. And I think the Eighth Amendment also is a reason why copyright should fall. Okay. After this balance, there's a good quote by Cory Doctorow, who's kind of anti-IP. He's for openness anyway. And he's talking about how, you know, there's these fights right now between the movie industry and Google and YouTube and things like this, and they basically want, you know, YouTube severely limited shutdown. They want to ratchet up this DMCA takedown system we have. And what Cory says is, you know, he's saying the big studios are saying you must shut down the system, the Internet and YouTube, that delivers billions of hours of enjoyment to hundreds of millions of people so that we can go on delivering about 20 hours worth of big-budget films every summer. To me, this is a no-brainer. I mean, I love sitting in an air-conditioned cave where Bruce Willis beat up a fighter jet with his bare hands as much as the next guy. But if I have to choose between that and all of YouTube, well, sorry, Bruce. And speaking of balance, there's another balance that the courts engage in with respect to patent and copyright, and that is anti-trust law, which is another unconstitutional law, in my opinion. However, so we have the federal government passing laws against monopolies, which aren't real monopolies, but they're private, so-called monopolies, and granting monopolies. So I guess what the courts say, well, there's a tension between... So they have to come up with this doctrine of IP abuse, you know. So, yeah, I'm giving you a monopoly, but you can't abuse it. You don't use it too much. And as a law school professor who's pro-IP, Beth Novak, she was quoted in an article about how to improve the patent system, and she says, a patent is a pretty significant monopoly, so we want to make sure we're giving it to the right people. Yeah, I mean, I trust the government to give monopolies to the right people. And speaking of this, you will have IP advocates get indignant when you call it a monopoly. I mean, they just stamp their feet and say, no, it's just a property right. Or they'll say, well, you're right in your body as a monopoly. I mean, so... And it's clearly their monopolies. And Richard Epstein, who's a pro-IP, says patented goods are subject to a lawful monopoly created by the state to reduce their creation. The Supreme Court refers to patentee having a monopoly. Arnold Plant talks about patents being monopoly grants. I mean, this is common language. William Sugar, independent. Granting a temporary monopoly to the rare breakthrough is necessary to provide the inventor with an opportunity to earn a return investment that led to the idea, blah, blah, blah. Okay, so let's not get indignant. And here's something interesting I came across a couple of years ago. Thomas Jefferson in 1789 wrote a letter to James Madison, who was at that time drafting the Bill of Rights. Now, you remember, 1789, the Constitution had been enacted or was about to be enacted, and there was a copyright clause in there, granting Congress the authority. But the Bill of Rights was being contemplated. And so Jefferson suggested this article be put into the Bill of Rights. Never was. I don't know why. Article 9, monopolies, again, recognizing them for what they are. Remember, we used to have a Department of War. Now we call it Department of Defense. The status were more honest in the old days. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding blank years, but for no longer term and no other purpose. In other words, he wanted to put in the Bill of Rights a cap on how long these can be. Probably it would have been 14 or 28 years, which was common at the time, which means Mickey Mouse would be a public domain by now. Copyrights wouldn't last for about 150 years as they do now. Some of you may remember the story I've heard is that when the Income Tax Amendment was being put into the Constitution to authorize the Income Tax system that we have now, there was a suggestion to put in there a cap of 10%, like Income Tax could not be, but the congressmen were afraid to do that because they thought that as soon as they did that congress would right away raise Income Tax to 10%. They didn't want to give them any ideas. They were thinking it would be 1%, 2%. But if only they had done that, right? And finally, the coup de gras to the stupid argument that IP is not a monopoly, the first modern statute that all patent systems come from in 1623, the statute of monopolies makes me want to say, you know, make fly. Here's another. Well, liberty is good, but it's not, you know, I hear this from non-libertarians, not only on the IP issue, but you'll hear this, they'll say, well, I favor liberty like you do, but it's not our only value. This is what conservatives say all the time, right? It's just one of many values. When you hear someone saying, oh, I believe in liberty, but it's not my only value, hold on to your wallet because they're coming for it. So what they say is, oh yeah, this is what David Kelley's arguing with basically. He admitted that scarcity is one criteria for one type of property, but it's not the only type of property. So it's just like positive rights in the welfare state, right? I mean, you know, liberals say, oh, no, I believe in sanctity of property, but I also believe in the right to health care. So they want to keep adding these rights, but what they don't care about is that these rights are not inexpensive. They come at the cost of liberty all the time. Just like inflating money drives down the price of money, inflating positive rights undermines real rights, granting rights and non-scarce things always has to come at the expense of existing property rights in real things. And if you think about it, every time someone is sued for a patent infringement or copyright infringement, they're using physical force from the government courts directed against someone's physical body or their physical property or they want to take their physical money out of their bank account. So it's really always a dispute about scarce things and we already know who owns scarce things. The owner, the first finder or the person who acquired the good by contract. How much time? Five minutes, okay. Any Q&A? Well, first of all, we're having a panel tomorrow on IPA. So let me have a few more things to get through. Daniel Shulman, could I have one question? Absolutely, go ahead, Neil. Listen, Stefan, I'm not going to argue with you about morality or rights or values or law or any of that other sort of stuff that you speak about really quickly, okay? Probably 90-95% of the applications of what we talk about, I may be more aggressive against the way that copyright and patent law is being used to oppress against rights. I could probably find even more increased examples from Monsanto and Wright David getting images in Disney that he talked about. We're so, as an anarchist I am so supportive of what you're doing in these areas. But there is one fundamental question which you over many years we've discussed this simply cannot answer because it is not a question of rights it's a question of I know you're going to start thinking I'm going to reign here or not, I'm going to Aristotle. It's about the law of identity and it's a question which I've raised in all of this state once again like this. I have here a book it says on the cover alongside Daniel Scholler, okay? I sell you this book and when you open it up and get to chapter one it says it was the best of times it was the worst of times. My question is did you get what you paid for? Now if you say yes and you're saying the pattern of words in the book is irrelevant the physical materials that are on here that have any market utility if you say that you've got something different than what you paid for when you were acknowledging then what you're calling pattern or composition or whatever card you want to use makes it a different good a different thing a different entity a different thing than what you thought you were buying so my question is if the thing is transferred from various different categories and it's always the same thing is that a thing or isn't it? I maintain you deny its thinness and that's the problem because in essence what you're saying is that which may be unlimited copy does not exist at all as something real in reality. Well I think your argument is a variant of what I've heard. His argument is that that's the problem I've been trying to I'm a great writer and I've been trying to explain this simple concept for 30 years and are really failing. I think your argument is basically that there are different types of entities like Keyboard McCann argues this as well ontologically different types of entities and scarce material things are not the only types of entities that exist and they're not the only types of entities that can be owned that's the argument I eliminate the word scarce I'm assuming you're asking is there anything which exists apart from the materials on which it is found? I have no problem with conceptually identifying things if you want to call them things like there is a column we can conceptually identify that the problem is granting a right in it means you are using physical force and it's always directed against some physical thing and what that means is to give a right to information or to these things that are not scarce always always ends up undermining property rights and already owned things so you may have been here in the beginning I talked about the right way to classify patent and copyright and probably your logo rights idea is a negative servitude basically it's a contractual co-ownership right some other party has a veto right over how you use your property the problem is no matter how you spend it if you're going to grant rights in these immaterial things you're going to end up giving someone a veto right over how they use their own property which is already owned it's a secondary argument to be had at another time but first we have to add whether or not there is an independently existing thing we'll have to disagree on that I think the time is up so thank you very much I'll be happy to talk about this later