 This is Isaac Morehouse. Welcome to the podcast where we discuss education, entrepreneurship, big ideas, how to put them into practice in the real world, and above all, how to live free. How to go from zero to a startup job in nine months. You don't need to jump through hoops or blast out resumes. You can start today. Praxis combines a three month professional boot camp with a six month paid apprenticeship at a startup that leads directly to a full time job. Startups aren't just for coders, sales, marketing, operations. Even if you're not sure what you're interested in, Praxis places you with a dynamic growing company where you do work you love, become part of a team, and make a difference. Praxis is tailored to your goals and your interests, coaching sessions, group discussions with your peers, skills training, and a portfolio of projects along with the apprenticeship create a powerful combination of real world experience and intensive learning. We are relentlessly committed to helping you discover and do what makes you come alive. We don't just prepare you for a job, we actually give you one. No degree is required to get started on your career. Whether you're an ambitious go getter right out of high school, a creative thinker who's bored in college, or a college grad looking for the next step, discover praxis. Great jobs are waiting. Are you ready? Today, I am very excited to have on the show, Stefan Kinsella. This is actually when I first launched the podcast, when I made my first list of potential guests I wanted to have. Stefan was on that very first list, and it's taken over a year, for whatever reason, to just get him on the show and do an episode about intellectual property. So Stefan, welcome to the podcast. Thanks a lot. Glad to be here. So briefly introducing you, and I know your bio is much more deep and wide. Stefan is a patent lawyer, interestingly enough, has been for almost 25 years now. He also has a podcast. He is a scholar, has written many, both popular and scholarly articles on everything from intellectual property, which is our subject today, to all kinds of legal theory, the philosophy of liberty, many, many more. He's kind of the foremost expert on intellectual property, certainly from a free market standpoint. He's the founder and director of the Center for, hold on, I'm going to get the name wrong. Let me make sure I get it right. The Center for the Study of Innovative Freedom, which is really focused on the intellectual property topic. So Stefan, what did I miss in your bio that's important? You got it right. A quick summary of my path was in 82, I became a libertarian through reading Rand in high school, and around 88 in law school, I became an anarchist after reading Rothbard and the others. And around 1992 or so, 1993, I started practicing patent law. And that's right when I became anti IP at the same time. So right when I learned enough about IP law to start practicing it, I also learned enough to realize that it was completely incompatible with libertarian property rights. Yeah, so let's let's jump right in there, because that was one of the first things I wanted to ask you. How did you get into the issue that interested in the issue of the intellectual property? And how have you sort of maintained a career as a patent attorney? Well, you've had this philosophical position and opposition to IP. So how did it start? Yeah, well, just reading reading the basics of libertarian theory, like when I was younger in college and even earlier on Rand's defense of intellectual property. You know, they never quite made sense to me like the other stuff did, because she's like in favor of this patent system, which gives you a monopoly over an invention. But for 17 years, and copyright gives you a monopoly over an idea for, you know, 60 or 70 years. But it's it's like an arbitrary time frame. And that doesn't see didn't seem right to me. I said there's something wrong with this because natural rights last forever if they're justified. So I just put it on the back burner and I figured I figured they knew more than I did about it. And I kept thinking about it. And when I went to law school, I thought more. When I started practicing in a different field, intellectual international law and oil and gas or energy law, but I finally switched over to patents because the tech field was really good at the time in law, the patent law field. So I switched over. And at that time, I just started thinking more and more about it. And I started doing a lot more reading. I read works by Wendy McElroy, who I really think is basically the pioneer in libertarian theory and intellectual property. I really think she's the first one who basically got it right. She didn't flesh it out completely, but she she was there with Sam Konkin and Benjamin Tucker before her who she'd studied. But Benjamin Tucker's reasoning was not exactly right. He was sort of against monopolies for the same reason he was against monopolies and land. So you can see that his reasoning wasn't quite pure libertarian on this. But Sam Konkin and Wendy McElroy really got it right, I think, especially Wendy. And then Tom Palmer sort of writing some really good, more advanced stuff in the 90s. So I read all that and some other people's works. And I finally came to the conclusion, oh, the reason I'm having trouble justifying this, because I thought, you know, I know more about IP than most libertarians because I'm practicing it. I can be the one who finally figures this out and explains why it's why it is justified after all, why I'll give a better explanation than Rand did, which by the way is what her chief sort of legal disciple right now, Adam Mothoff, has been trying to do for a dozen years now or so. He keeps promising to come up with some kind of defensive IP that is I guess better than Rand's, but he just keeps repeating what she said as far as I can tell and mixing it in with like utilitarian arguments like those of Richard Epstein. So but I, on the other hand, finally concluded that the reason I was having trouble finding a good argument for IP was because the same reason I would have trouble finding an argument for slavery, it's because it can't be justified. So that was my path and the basic reasoning I came to was not really utilitarian, although I think empirical arguments or the factual evidence about the effectiveness of patent and copyright is overwhelmingly negative. It shows that these systems are very dangerous to innovation and to culture and to freedom and to prosperity as well because patents suppress innovation and make us poorer literally because we have less technological achievements and innovations now than we otherwise would if patents weren't slowing down the whole process. But that's not the primary argument against it. The primary argument is just understanding what these rights are and how they work. And if you understand the basics, just the simple basics of libertarian property rights, you'll see that there's a complete conflict between those two. So let's let's start with a brief definition of because you've mentioned patents and copyrights. You haven't mentioned trademarks, which is something that people bring up a lot to me, you know, like, well, oh, you've got to have a, you know, you can't just say that you're representing Nike and you don't really represent Nike, whatever. And they kind of get all these things confused. So could you give me a brief definition first of trademark, which seems a little simpler to me, and then copyright and patent. So you have these, there's four classically defined types of intellectual property or IP, and they are copyright and patent and trademark and also trade secret. You could loosely group a few other legal rights under this rubric too, if you wanted to like reputation rights or defamation law, and a few others. Well, there's then there's some newer ones like mass court protection for integrated circuits, which is sort of like a hybrid of copyright. But anyway, a trademark is simply a mark used to identify the source of goods or services in commerce. And the law gives certain rights to the user of that mark. Okay, it's like a think of a brand name like Coca Cola or the name Apple, Apple Computer Company, or Exxon, those are examples of trademark. So it's just a mark. Copyright is the right of an author of an original creative work like a novel, or a painting or software code nowadays. And it lasts over a century in most cases. A patent is a limited monopoly to be the exclusive person who can practice an invention. That's a creative, I'm sorry, that's an inventive, useful process or machine, basically. And then the trade secret is just some information you have this that that that is useful to you to keep secret, and that you do keep secret for the most part, like a customer list or even a process for making a chemical that you don't reveal to the public publicly, like you would if you're selling, say a mouse trap with a new design, you reveal that to the public when you sell it. So you wouldn't be able to keep a trade secret on that because it's just not secret. So those are the four classic types of intellectual property. They were never called intellectual property originally until fairly recently, they were for say distinct rights trademark did arise partly on the common law, so the trade secret patent and copyright were rooted in like executive action of the monarchs or statutes. So copyright arose in the statute of Anne of 1709 in England, and some previous statutes before that. And patents arose in what's called the statute of monopolies in 1623 in England, which was a statute by the parliament, which was meant to crack down on the egregious habit of the monarch in granting monopolies to favored cronies and tax collectors and people like that in different towns, saying, you're the only one who can make playing cards in this town, you're the in exchange for you know, you giving me some of your bit for helping me collect taxes or being protected from competition, etc. And this practice got to be so egregious that it was such a mercantilist and protectionist thing that the parliament passed a statute called the statute of monopolies basically restricting the king's ability to grant these monopolies except they made an exception for they said, well, you you can keep granting them for innovative inventions, basically. So they made an exception for invention. So they were the king retained the ability to grant these monopolies for inventions for inventive processes. So that's the sort of the roots of these of legal regimes. And in the 1800s, patents, especially patents and copyright, especially patents, were coming under attack by free market economists worldwide. I mean, a lot of countries abolished it for a good 50 years, like the, I think, Switzerland or the Netherlands. Because they were just obviously ways to protect someone from competition, that the government literally grants you a monopoly for 17 years or something saying no one else can compete with you in this field because the government has approved your your application process. And so some so these this practice is clearly anti free market and anti competition and pro monopoly. And so the free market economists were like universally condemning it. They're saying what the hell is going on here. And so the defenders, the entrenched interests who were relying upon these monopolies, you know, the car industry, et cetera, the printing industry, the publishing industry, they started saying no, no, no, no, it's it's not a monopoly. It's a property right. It's just a different type of property right. It's this type of property that comes from the intellect. So let's call it intellectual property. And we're all in favor of property rights, right? And so it's really a natural right. Admittedly, it doesn't last forever like other types of natural rights. That's because it's special. So the defenders of the these special legal privileges came up with the term IP to make people think of it like it's a normal type of property. And so most people who don't think about these matters, and who are naturally in favor of property rights, like in their cars and in their homes and on their farms, you know, they're thinking, well, I guess if I'm in favor of property rights, I should be in favor of this type of property right to yeah, so that's why it's called IP. That's exactly how I started out. You know, it reminds me of the way that you can sort of do that sleight of hand and turn something into a right. Taxi driver recently telling me that you know, he's offended by Uber because he bought this medallion. And that's his prop he has a property right and Uber is undermining the value of that and that somehow is or people back in the housing crisis, they felt like they actually had a right to the value of their home increasing like, no, no, no, you own the property, but you don't have a right to command a specific price on the market. But it's an easy sleight of hand. One more thing that you mentioned that I wanted to just highlight was in the origin of these, this is something that comes up on this podcast a lot, the difference between emergent sort of common law or institutions that emerge naturally from people interacting with each other over time as a way to produce harmony versus sort of imposed from on high centralized, you know, dictots that are, you know, using force to impose something that is not really creating harmony and peace. And the difference, you know, trademark and trade secrets, I can see very easily how if you're lying and pretending to be Isaac Morehouse or you're claiming that, you know, your product is, you know, made by my company and it's not or you've stolen, you worked for me and you stole something that you agreed not to share and then you go share it. It makes total sense that the common law tradition would sort of evolve such that I could come and say, no, no, no, no, you, you owe me damages for lying and claiming to be me. And that seems very natural to me. Whereas these other things, I can't really see any natural way that they would emerge in the common law, you have to have some central force saying, no one is allowed to produce this except for you. They just the origin alone should make us be suspect of the copyright impatent, you know, IP laws. I agree. On your previous point, just for a second, about these, these artificial rights and rights and value, and it just reminds me a little bit of these these tea party years a few years ago, if you remember, they were saying something like, we want the government to keep their cotton picking hands off of our social security. It's like, wait a second. It's like, you understand the social security comes from the government taxing me. But so here, I actually am totally opposed to trademark law as well. And I'll I can explain why we have time to get into it. In my original book I wrote in 2000 and 2001 on this, I kind of said, well, trademark has currently written as problematic. But the core of it, you could different maybe on fraud grounds or something like that. But now I've come I've come even further against trademark, but I don't focus on it as much because in my mind, if you rank the harm done by these laws, clearly patent and copyright are the worst by far by far. Now I go back and forth over which one is more evil. I actually think patent law is the worst in terms of the the tangible damage it does to society because it I would I would look at the patent system is like a $10 trillion a year tax on on the world economy or something maybe even worse. It basically is a huge barrier to innovation and therefore to to actual wealth and progress. Though as software is taking over everything, I suspect that that may be copyright is quickly catching up. Yes, however, because of some unique differences between patent and copyright, now copyright lasts longer. However, it only protects it only stops you from copying. So it's theoretically possible to have a similar product as long as it wasn't copied, whereas in patents, even if you independently invent something, you still can't practice it. So and not only that, there has been the rise of this open software, we call it free software movement, right? So the I would say the bulk of innovation and software now is done under the rubric of all these free software licenses. So they basically in effect opted out of the copyright system, which it's not as easy to do in the patent world anyway. So copyright is less of a threat to software development, I think. The problem is, while copyright doesn't do as much financial or tangible harm, it does. It is more insidious in the in the sense that it never wanted to distort culture heavily because it distorts the type of movies that are made, songs that are sung, remixing and all this stuff. It makes people think twice about publishing or engaging in projects because they know that certain things are not permitted by copyright. And it also lasts much longer, well over a century. And it's also being used by the government to increasingly ratchet up controls over the internet to like shut sides down, which in since I regard the internet as a key tool in the battle against the state, copyright is more insidious and more dangerous in a sense than than patent. So if I if I were given the choice to abolish one, I probably would abolish patents just because it's hurting people so much. In terms of their their daily lives, how much wealth we have. But copyright would be up there. If you want to talk in a minute or now about trademark, I can explain what is really go for it. So everyone says like, like you sort of say, there's something wrong with lying and taking your identity. And what you're getting there at is that libertarians sort of have this vague. And when I say vague, a lot of people don't really define it or they all define it sort of differently. But we're usually, we usually say we're against aggression, which is the initiation of force against your body or your property. And then we'll just throw in or the threat of that. Okay, which I think takes some work to justify people just assume that or fraud. See, they'll just say or fraud, like it's obvious what that means. Now, what they have in mind is some kind of some kind of way of using deception to take advantage of someone and basically cheap them somehow in some kind of measurable way. And so that instinct is right. I think ultimately fraud is an unlibertarian thing is a type of aggression because it's basically what I would call theft by trick, which is what the common law does call one type of fraud theft by trick. So you're basically gaining possession of someone else's own resources by deceiving them about the nature of what you're giving them. So it's a way of getting unjust or unfair title to their property, which you shouldn't have. So it's a type of conversion or theft. You can think of it that way. The problem is fraud is already illegal. So if you say, Well, we need trademarks because fraud should be illegal. So wait a second, we already have contract law, and we already have fraud law, those two things together already cover the cases where a consumer is deceived by someone like someone pretending to be more house, you know, that's going to catch up with the deceiver one way or the other. They're going to have a bad reputation. They're going to get fired when they get caught out. They're going to lose their customers. They're going to get sued for fraud. They're not going to get credit from someone because they think they're shady, or they're going to get sued for breach of contract. So in other words, trademark law is either just redundant with those things, in which case, why do we need it? Or it's something else. And I believe it's something else because number one, if a consumer is defrauded by someone, the person that has been defrauded is the victim, which is the consumer, and that person should have the right of action to sue the person who deceived them, the defrauder. And that is how fraud law and contract law work. Under trademark law, the plaintiff is the person who holds the trademark. So not the not the deceived customer. Okay. So for example, if someone sells a knockoff Chanel bag to a customer, Chanel can sue that knockoff manufacturer, not the customer under trademark law. So that's one problem with it. The other problem is you don't have to show fraud. You just have to show likelihood of consumer confusion. But in the case of the Chanel knockoff bags, the people buying these bags for $20 instead of for $2,000, they're not defrauded at all. They know they're buying a knockoff bag. So there like literally is no fraud in those cases. Yeah, I bought a Nike bag in quotes in Mexico one time. And you know that the swoosh logo was like out of proportion. I mean, it was just clearly, you know, it's like you're it was just I was just doing it to be funny, clearly buying. It was funny because it was obviously not a Nike bag. There was no, you know, yeah, it's interesting. And so and so and then one more thing in the in recent years, about 20, 30 years ago, the trademark law was amended to add this anti-dilution cause of action, which is if the owner of a so-called famous mark can prove that someone is using it in a way that tarnishes or dilutes the value of their mark, even if there's not likelihood of consumer confusion, they can still get an injunction and go seize the bags and crush them. And that goes to what you mentioned earlier, which is this belief that property rights or property rights in value, as opposed to the property right in the physical integrity of a physical owned resource. Because so you have Nike or someone or Chanel, they claim that they have a certain goodwill or some other kind of intangible accounting type concept value in their reputation. And therefore, if someone else does something to dilute that, then they're damaging them by reducing the value of their proper of their of their reputation in the eyes of consumers. And therefore, they should have a cause of action against that that interloper, which is very similar, if you notice to defamation law, which is the idea that you have a reputation right. And if someone lies about you in a way that harms your reputation, which makes you lose value in your reputation, that you have a right to sue to, which is why I personally classify defamation rights as a type of IP, even though most IP lawyers don't. And interesting Rothbard in his Ethics of Liberty had a kind of he attacked the patent system on somewhat reasonable grounds. He attacked defamation law on good grounds. He noted that if you have a right to your reputation, it means you own other people's brains because you're owning what people think about you, right? And so he understood that that's wrong. But he didn't quite see that that's almost the same argument you would use against trademark law, because it's also a reputation right type system. And then he had this weird contract based defense of copyright, which doesn't work if you just trace it out. And that's another reason I think some people are confused on some libertarians are confused on IP is because no one up until maybe the late nineties really started sorting this stuff out clearly. It seems to be an area where and I did this myself for many years where you know, once you arrive at a very logically consistent either from a moral standpoint or a consequentialist standpoint or both a principled understanding of why liberty and property rights and free markets and all these things matter, you come to the issue of IP and every thinker just sort of like does these weird gymnastics to say like, well, maybe this isn't quite right, but then this is good. But then like it's like everyone's afraid to just fully let it go as I was because I one, I just wasn't that interested in it. So I didn't want to put in the time, but I was just sort of like, well, I did just it just kind of has to exist. I was I was afraid to because I was a budding patent lawyer and I was I would write these little articles very cautiously like maybe we could look at it this way or maybe we should think about discussions and because I was afraid it would hurt my career and the more radical I got and the more I realized that my clients and my colleagues don't care about this. They don't care about normative theory and they're not really anyway. And I just started getting more I would like I started getting more brash over the over the years. I'm like, I just would, you know, clients hire you because of how good you are at your craft. And in fact, if you have a very articulate, strong opinion against the patent system, people want to hire me more because they say, well, he must know he must know the system really well. So it never hurt me in my career. But what what you just mentioned reminded me of something I learned of a couple of years ago. You know, Mises has these kind of bizarre cryptic comments in human action on the patent system where he basically admits that it's a monopoly and he sort of gives the pros and cons of it. But he doesn't really, he says, well, if you don't have a monopoly on ideas, then you're going to have this economic effect. But if you do, you're going to have this effect. And then he just sort of trails off and lets it go. And Israel Kersner, who actually has some tantalizingly good comments on on IP. And he had a comment in a Q&A session in some lecture a couple years ago. Someone asked him about IP and Mises or something. He said, you know, Mises was one of these really rigid, logical of guys that always had an opinion, right? And he said, the only thing he never had or that the only thing that that he was not like Mises on was IP. People will say, hey, Mises, what do you think about IP? And he would say, well, on the one hand, this on the other hand that Mises would never do that on any other topic. He's like, socialism is wrong, you know, or property rights are great. But on IP was like, well, on the one hand, this on the other hand that. So it trips up a lot of people. It's in some ways, I almost feel like at least for me, it was it was a fundamentally, it was a lack of imagination and inability to sort of it's like, well, I don't I can't theoretically explain in any consistent way any theory of intellectual property that makes sense. But I also can't imagine a world without it because I've been so conditioned to believe that no innovation would happen without these legal monopoly grants that, you know, I guess we'd still be living at subsistence level and that doesn't sound, you know, I think it's just a lack of imagination really understanding of history, because that's not at all the way that it works. Yeah, and really the libertarian movement is relatively young. Let's say the modern movement is about 60, 70 years old, and we all came of age in a world where IP law had already existed in the Western capitalist or more or less capitalist systems and where our sort of progenitors and forebears either didn't talk about IP very much or they were kind of for it because they all assumed that, you know, it's part of a private property order. It's in the US Constitution. It must be sort of one weird specialized arcane aspect of a capitalist order and we're used to it. And it's hard to imagine what it's like without it. But on a more principled or theoretical level, I think I think the mistake, to be honest, came from from Locke and we inherited a lot of our thinking from Locke and type style analysis and his principle view of the nature and role of property and man's rights and limited government or government itself. And he's got this framework where he talks about homesteading things and mixing your labor. And the way he argues is that the reason you own, say, a feel that you find unowned in the state of nature and you transform it into a farm, you know, or a house or something, the reason you own that is because, number one, you own yourself because God owned the earth. God gave the earth to mankind in common. And he gave every person ownership of themselves. And if you own yourself, you own your labor because you generate your labor. Now you can see already this is getting to be kind of metaphorical and shaky, not really rigorous. And if you own your labor, you know, so like there's this picture of these labor substance sort of emanating from your body. And then if you mix your labor with some unknown thing, it gets so intertwined with it that for you to keep ownership of your labor, you have to keep ownership of all these molecules that your labor sort of mixed in with. Okay, so his argument is this kind of complicated, almost overly metaphorical, almost mystical argument where you just picture us as owning our labor and then owning the fruits of labor, whatever that's another metaphor, the fruits of labor, it's not really literally fruit. I mean, you do own fruits of a tree that you own, but to extend that to the fruits of your labor just means whatever results from your labor because you owned it. And then that leads to this idea that that one of the sources of ownership. Now this is very common among libertarians. If you ask a principle diehard libertarian, what are the sources of ownership? They will say, Well, number one, you can have a contract where you acquire the resource from a previous owner. That's correct. Right. Or you could homestead some unknown thing because you make sure labor with it and then you become the first owner by original appropriation or by creation or production, they'll say. So if you produce something or you create something, then you own it. Now if you believe that that's a those three things or the three sources of property rights, then you start thinking of creation as a source of property. So if you create something of value like an idea or a recipe or a song, well, if anyone owns it, shouldn't be the creator, right? So you're already thinking in your mind that creation is one of the three sources of ownership. And that's the fundamental mistake that comes from this Lockean concept of that you own your body, therefore you own your labor. That's the mistake right there. You don't own your labor. Labor is just an action. You don't own your actions or actions or what you do with your body, which you do own to say that you own your body and your actions is like double counting and it gets you into all these errors and it also gets you to this idea that you own value of your resources. Like we said earlier, so all this stuff is mixed in together. The mistake is in thinking that creation is an independent source of ownership. It is actually not only contract and only original appropriation. That is the only two legitimate ways to acquire ownership to a resource. Creation is really what creation means is in by the way, Mises and Rothbard and even Ayn Rand recognize this in their various writings. Creation is simply production, which means rearranging or transforming an already owned resource into a new arrangement that's more useful or more wealthy to you or more valuable. But it doesn't mean you come up with a new property rights. So if you take a big piece of marble and you carve a statue out of it, now you have a more valuable piece of marble, but you own the statue not because you created it, but because you already owned the big hunk of marble. If you didn't own the big hunk of marble, you wouldn't have the right to chip away a statue out. There's no additional right that you've now added to the ownership of the marble because you did something new to it. You've created wealth, but you haven't created you haven't created property. You know, for me, I had I had come to the theoretical position of like, OK, first, I don't think there's any coherent way to define intellectual property, certainly not in a way that doesn't also at least sometimes violate physical property. You know, if I'm not allowed to mix two chemicals that I own in a certain way and sell them because somebody else already did it, that's that's a violation of my sort of physical property. So I was sort of on board that this is theoretically bankrupt. It's inconsistent. It's and it's you know, it's unethical. It's got problems, but I still had this sort of like, yeah, but it kind of like has to exist. Otherwise, right, nation won't occur. And what opened my eyes was this is by the way, a similar sort of very simple argument that John Hasnes makes for anarchy and the obviousness of anarchy, which is look around. It's actually already here. We don't need to imagine what the world would look like. It actually is already here. And when I found out that the fashion industry, the cooking industry in terms of recipes and things like that, I started thinking about football and great coaches who make up innovative plays and schemes. None of those things have any intellectual property protection. And yet they're some of the most innovative dynamic areas of any industry. And it was sort of like, you don't have to imagine what the world would be like. And then I started looking back in history, Bolger and Levine's book and started realizing very recent history, as well as even today, there are examples everywhere of no IP productions and innovation is not curbed. In fact, it's stronger in those areas. Yeah. And in fact, if you point this out to people, well, of course, the IP diehards are always advocating for more IP rights. So there is a movement, of course, to get fashion, fashion industry type IP rights enacted as if we don't have enough fashion innovation already, right? And then, of course, in Europe right now, they're trying to get this special copyright, which is a copyright in newspaper headlines, so that Google would have to pay to have snippets of just the title of an article. So there's always a movement towards more of this. And of course, if you view it as IP, you're thinking, well, more property is good. But of course, the truth is that real property rights can never conflict with each other. And if you add positive rights, which is what these are, it always comes at the expense of legitimate rights. And by the way, Hasnest is one of these guys who doesn't write a lot, but he writes some things that are so classic. His other one is the myth of the rule of law. Those are two classic powerful articles. And there's another one that's similar by Alfred Cousin in early jail general libertarian studies called Do We Ever Really Get Out of Anarchy? Yes. And I don't even think he's a libertarian. But that's such a great article. He points out that we already have anarchy among the governments of the world. And even within a government, there's like, you know, Obama doesn't have guns pointed at the people that obey his orders as an internal order in the state itself that works for some reason, doesn't work well. But as for Bolder and Levine, their your great book is Against Intellectual Monopoly. That's probably the strongest free market case against IP. That's not really on a principle libertarian. I mean, it's just purely empirical. But it's, I believe they started the book faking they would find all kinds of evidence for patent and copyright, but they they ended up realizing that it's there's like no evidence for it. And the evidence goes the other way. So they ended up changing their conclusions to their credit. Oh, wow. But you did mention something earlier. I didn't think I failed to answer. And that was about the common law and natural rights. And it is true that trade secret and trademark law arose mostly on the common law. And originally, the function of trademark was consumer protection. So you can see a route to fraud there. It's just going out of it's gotten out of the bounds of that. And trade secret had some rough justification to although I'm against trade secret law and I can explain why they're although it's such a small area. I mean, it seems like it seems like contract law would would cover anything you needed covered. If you have made a agreement with me that you will not, you know, a non disclosure agreement would cover it. Yeah. And the way trade secret law works is that you need non disclosure agreements just to prove to the court that you were trying to keep something secret, making a diligent effort so that if one of your let's say one of your employees leaves and he goes to work for another company, you can get an injunction against the other company, not just your employee, but if he reveals a secret to some third parties who didn't sign the NDA and who aren't bound by contract, as long as they have it publicly reveal the secret because once it's made public, it's not a secret anymore and you have no trade secret protection. You can't you can't put the genie back in the bottle. But if it's still possible to put the genie back in the bottle like like your former employee has told, you know, five people at this new company, the government will come in and they will issue an injunction against these five people and they will say you are forbidden to use or think about or discuss or reveal this information under penalty of contempt of court, which means going to jail. So the problem I have with trade secret law is that it is not based in contract. It is basically the threat of jail physical force against third parties who did not have a contract with the original holder of the so-called secret. Okay. So that's the problem with trade secret law, although it's again not as dangerous or bad. Trade secret law probably does the least damage of all, although I mean, if you remember when that Apple iPhone 4 was left on a bar somewhere on a bar stool about five Apple employees with the local police or maybe it was federal police. I can't remember. They showed up at the apartment of the guy that had found the iPhone. Okay. Using trade secret law as your justification burst into his home and they forced him to turn it over. Now this guy didn't have a contract. It was an Apple employee who lost the phone. Now I could see recovering your property. I would say Apple still owned the property. I wouldn't argue they had abandoned it. They lost it. But if the guy learned something from the phone in the brief duration that he had possession of it, you know, he's free to use that information however he wants. But he's not under trade secret law. So that's my problem with that. But let me go back one step. What I was going to say about the common law was those two rights did emerge gradually under common law. And there was also something called common law copyright. Now what that was, it was very much like trade secret. All it said was if, and this is back in the days before the internet, of course, and if you're like an author and you have a manuscript of an unpublished work in your desk drawer, like you're a professor somewhere and someone steals, sneaks into your office, steals that manuscript and goes to a printer and tries to publish it, you can get, you could, you could prevent them from publishing it first because you have the right to publish it first because you're the author and they had to obtain the manuscript basically by theft. So that's what common law copyright is and it's been superseded by the modern copyright law. So there was a current but you can see that that's really rooted more in trade secret type law and in property law itself. It doesn't justify at all what modern copyright laws become. And Rothbard actually uses that he makes up the term common law copyright in his contract based argument for copyright and he calls it common law copyright apparently not even aware that there was such a thing as common law copyright, which is different than what he's talking about. And the common law copyright he's describing what he really means is copyright by contract still wouldn't justify modern copyright because copyright is not based on contract at all. It that's the problem with it is that it's not based on contract just like this trade secret law is not based upon contract. So but but anyway, I keep getting derailed. What I was going to say is you don't have to be an anarchist and you don't even have to be a libertarian and you don't even really have to be a principal libertarian to oppose IP. All you have to do is realize that every justification given for it is wrong. If you're a consequentialist or an empiricist or utilitarian, if you just look at the evidence, you will you have to at least admit that there are prima facie violations on liberty and their restraints of trade and their monopolies and their special privileges. And if your argument is that they they're necessary to to incentivize authorship or creative works or they're necessary to stimulate innovation, then the burden of proof would be on you to prove it. And the the framers of the Constitution in 1789 didn't have any proof of this. They just as they assumed it because they were used to the the crude systems in England. So and in the hundred two hundred plus years since no one's been able to prove this and all the studies we started doing empirically prove the otherwise, right? You know, there were sort of when I started when I really came to it, I was like, OK, I have to I have to actually decide if there's anything left in IP that's that's at all justifiable. And there's sort of three questions that I think all have to have yes as the answer. And I think all of them clearly have no as the answer. One is just at a very practical level. Can it actually be enforced in any meaningful way? Like, you know, there's just so many how do you prove that, you know, you didn't you weren't just independently inspired and produce something similar to me? Like the enforcement is scary in some ways. And then two, should it be enforced? Is it philosophically sound? Is it just whatever? It seems very clear to me that's no. And then number three is what does it look like? If we try to enforce it? Are there and this is sort of the consequentialism? Are there actually more benefits than costs? Because it's not enough to say, oh, look, here's a case where innovation happened because someone was granted a monopoly. If you're going to be a true sort of consequentialist or utilitarian, you have to say, what are the benefits and the cost? Given everything we know about public choice theory and regulatory capture, all the same arguments we make for why occupational licensing is bad and the granting of monopoly to, you know, the producer of any good is bad, you know, is bad in the free market. All those economic arguments, there's nothing that changes there that's special about IP. So you have a tremendous burden of proof to prove that whatever benefit you imagine is going to happen in terms of innovation, that's all sort of speculative, is not only going to occur, not only are there going to be benefits, but it's going to exceed all of the known costs, which are closing, you know, shutting out competition, patent controls, and all these, you know, all these unintended regulatory capture, those are no negatives. So you've got to have a lot of evidence to prove that whatever good is going to come supersedes all this, which is just impossible to do, I think. Yeah, there's also the mindset kind of issue that you alluded to earlier, which took even me a while and probably Jeff Tucker and my in, you know, endless discussion about this or the last 10 years or so has even changed, but we change each other. We both gotten more open minded about it. And that has been a result of just experimenting and seeing just getting used to what we see around us and seeing how the internet and open models actually work and how they're better. I mean, in the beginning, I was theoretically writing, well, patent and copyright can't be justified, but you could probably simulate a lot of their features with a complicated contractual. So I was trying to find a way to use a contract system to do some of that, like trying to get some of these anti competitive things done in a permissible way, but trying to do it or trying to explain it away. Yeah, it's like it's like constant, you know, paywalls and NDAs and things that basically make your customers hate you because you're afraid that you won't be able to make money unless you can, you know. Yeah, well, right. So the people that believe that they say that, well, maybe the current copyright system couldn't be justified, but you would get the same thing through a contractual system anyway. So what's the big deal? But the thing is, if you if you really understand how contracts would and should work and and do work, the only way you could have something resembling this would be basically for like, let's say Amazon under pressure from publishers would have to make every user of Amazon click on a agreement before they bought a paper book or a Kindle book and they would have to agree. I hereby agree never to use the content or to learn from or to remember anything I buy from you. So I'm going to pay you 10 bucks for this book and I have to agree. I have to agree to basically go to jail or pay a million dollars if you ever find if you can ever prove that I used the content illegitimately. So by showing up on this podcast, you have implicitly agreed that everything said here actually is owned by the Isaac Morehouse podcast. So if you go out and profit from this information later, I can sue you. Yeah, but that's the point that the few people that are not pirates that are willing to pay you money to get your stuff because you made it easy for them to get it from you. You're going to penalize them the most by subjecting them to millions of dollars of damages. And if you say, OK, well, then it'd only be $25 damages. Well, then that's not going to deter copying. So people would someone would just buy it and pay the $25 fine and they would upload it to the internet and then it would be out. So the point is customers would realize that you're demanding this huge owner or a burden be placed on them just to give you money to buy a book from them. They would say screw it. I'm going to go get a pirated copy and not be subject to this. So you would have fewer and fewer customers who are your real customers paying you money, who you're subjecting ever and ever owner is burdens on to try to make them pay for all the pirating going on up there. And it just wouldn't be a viable contract model. There's kind of a there's almost like an abundance mindset or a confidence in the value that you have to offer the market that lets you say, look, I don't have to try to charge for everything. I mean, this is all the smart in the marketing world. It's like, you know, they call it whatever content marketing, like create podcasts, blogs, articles, books, give them away for free, because if you have a devoted following that they're willing to pay you for other things, you know, they'll come to your concerts, though, whatever, buy your this, that and the other thing and just not being so afraid, like, oh, I got to I got to sit on this secret and patent it and wait and wait till someone offers me $10 million for it instead of just like, let's put this out there into the world, you know, well, and that's of course. And if you open your eyes, you'll realize this has always been done in society. There's always lost leaders and reputational effects. And, you know, you you just have a hobby of painting things. And someone notices you and they hire you to paint their kid's portrait and that becomes a business. I mean, there's the problem is the mindset of the person who is for IP and they argue against abolishing it, especially the libertarian kind of stick, you know, they're so stubborn about this. They have an argument very similar to the liberal or the lefties argument for welfare. So for example, if we if you and I say we should we should have a free society and it shouldn't be taxes and there shouldn't be a welfare system, then the liberal will say, well, who's going to take care of the four? And the iron answer is usually, well, there wouldn't be as much poor and the ones that would we would have would be subsist on charity. And then the typical response of the liberal is that, well, can you guarantee that can you guarantee there'd be enough charity? And unless you give them a guarantee, they will just dig their heels in and say, well, then I'm not going to support it, even though, of course, the government doesn't have a guarantee. Social security is going to go bankrupt. So I mean, there's no guarantee anyway. But and the mindset of the IP advocate is similar because they'll say, well, how am I supposed to make money selling novels? And I'll say, I'll say, OK, well, let's think about it. I mean, we don't really know what would happen in a free society, but because it's been distorted by IP law, but we can guess that, you know, and I gave the example like J.K. Rowling with some mom on welfare writing Harry Potter books on the train because she loved it. And to her surprise, right, the first Harry Potter book became a huge bestseller and she didn't wait till she had a guaranteed income stream to start creating. She didn't. I don't think she did it to become England's richest woman or second richest woman after the queen. But but if there were no copyright, I mean, she still would have written that first book because she didn't expect to make money anyway. And she would let's say she published it on Kendall for 99 cents each. And all of a sudden it's a runaway bestseller. She makes 100,000 bucks and then then the pirates come in, right? Start selling, I guess, twenty five cent copy books. I don't know. Yeah. If if if being pirated is your biggest concern, you've already succeeded. Yeah, the pirates can't copy everything. They have to sit back and wait to see what's popular enough to copy. And by the time they recognize that the work that's popular has already made at least some first some first market mover money. But the point is she would have made some money and then she, you know, she had six more books in her head. She could have done a Kickstarter or something. And she could have said, listen, I've got number two and three written. And as soon as I get, I don't know, 500,000 people who pledge five dollars each, I'll release it. Now, that's, you know, that's already two five million. OK. So that's just for book number two. So she's already worth two million, three million dollars. And then she if he goes on to the end, she's already worth 20 million or 30 million. And in the meantime, some, you know, say three movie studios start coming up to they start making a movie based on the first book and they don't need her permission because there's no copyright. But one of them goes, hmm, I think I can get more more of her fans if I get her to endorse this movie and to maybe be a consultant on it because they want they want to see the the official. So they say, we'll give you 10 percent of the box office. So now she's got another 50 million. I mean, so I've given this example to someone who says, well, how are authors supposed to how are novelists supposed to make money? And as soon as you give them that answer, they'll say, OK, well, what about poets? It's like every time they have this buckshot, unprincipled mindset where they want to guarantee for everything because poets are doing so well currently in the system. Yeah, I guess you become Maya Angelou, the note and poet and laureate of the country. I guess that's the only way big money is a poet anyway. So, Stefan, let me ask you, we got to wrap up here. And man, there's so much more. We might have to do a part two to this down the road. Let me ask you one one last question. So startups are huge right now, especially tech startup software startups. And we've done some some several episodes here about startups and raising venture capital, etc. One thing that almost every if somebody is going to do a venture backed startup, let's say it's a software company. Every pretty much every venture capitalist, the first thing they're going to look for is do you have any IP because they want they want some sort of at the end of the day, it's their equivalent of a hard asset in a industry that doesn't have, you know, factories and physical capital. They want to know if everything goes to hell and this can't be executed on, is there at least some IP that can that is has some value that can be sold or whatever? How do you I feel like the incentives, it's really sad because the most innovative area in the economy is sort of in these venture backed startups in some ways. But they are rather than breaking down this old horrible model of IP, they're actually making it much stronger. Is there is there a way around that? Like if you want it to be a principled entrepreneur and not and not go and you know, copyright your protect your software, you know, can you do that? OK, so it we probably don't have time to go into too much detail. So I'll give you a brief answer. But I did write a pamphlet for Jeff Tucker's Liberty dot me, a little booklet a couple of years ago is called Do Business Without IP. It's on my website. Stefan, StefanCancella.com. So I kind of go into these different approaches to this in there. It's just pretty concise and it covers as many things as I could think of. But the bottom line is I do not believe people should pretend like there's not IP. There is IP in today's world. There's basically, you know, of course, everyone need. Well, for trademark, you don't really need a trademark to use a trademark. You just need a trademark to prevent someone else from getting a trademark. So if you get a trademark, that means you file a trademark or registration with the federal government to get recognition for your trademark. You know, you're free to use it. And if anyone else wants to use it, you don't have to make them stop. You could simply write them the letter saying I'll give you, you know, you need to pay me twenty five cents a year for a license if you want to do this because you need to actively try to enforce it so it doesn't become generic or you can just let it become generic and then everyone can use it and care. So that's one way with trade trademark. But again, the VCs aren't going to understand this stuff. So you want it to look legit, right? You want to be able to answer them. Yeah, we have IP. Here's our trademarks. Copyright is automatic. So anyone who writes software code does already have copyright in their software. But it's become acceptable to open source it if you want to. So as long as you follow the rules and do it that way, that's one thing you could do. Or you could just simply have a copyright in it and just never, never sue people. That would be the principle stance to take. As for patents, there's different things you could do. You probably do need to get patents on a few of your of your core ideas because the VCs are going to ask. Another thing you could do is you could simply make it public and therefore they would prevent other people from getting a patent on it because once it's public that serves as a statutory bar. Oh, that's interesting. So you could just publish it, publish the information because it's going to become public anyway, probably because most most patentable ideas are embodied in the product you end up selling. So that's another technique you could use. You could also join. There's a growing network of these consortiums where companies agree. They all come together in some consortium and they all agree to never sue each other for patent infringement and to give each other a license that they need to defend themselves against a patent troll. It's like the opposite of collusion. Well, see, the problem is some of these things are possibly dangerous under antitrust law. So we here we have the antitrust law, another government, Ilija law, which which makes it hard for companies to avoid the effects of another government granted monopoly, which is so under the guise of stopping monopolies, the government removes some contractual means companies have to stop or to fight off the effects of another government of an actual government monopoly, the patent system. But there are ways that you can use some of these techniques. You're a patient man to be waiting through this stuff on a regular basis. I think this is the first time I've ever spoken in public on IP. Stefan, there's so much we scratch the surface. So I'm going to have a lot in the show notes. So StefanCancella.com, you can find all kinds of stuff there. Definitely check out. There's actually a past episode we did with Harris Kenny from Aleph Objects, which is that they produce 3D printers and their entire company uses no IP, nothing they do, no processes, no software. It's all open source. So there's a really interesting case study. You can also go to C4, the letter C, the number four, S-I-F dot org. That's the Center for the Study of Innovative Freedom, which Stefan founded and directs. And we'll link some other stuff that we've mentioned here, the book by Boldren and Levine. We'll link your against intellectual property booklet as well. So StefanCancella, thank you so much. Again, we might have to we might have to do a round two down the road. Happy to do it. Thanks so much. Have a great one. Thanks, Isaac. Hey, if you're a fan of the show, do me a huge favor. Go to iTunes. Give it a rating or review. A rating is only a simple click of a button or if you're on your phone, a tap of a finger and it will help people find the show a lot easier. And if you have a little extra time, write a review. What do you think about the show? Honest opinion. That stuff goes a long way in giving more exposure to the podcast. What do you get out of all of it? You get the pleasure of knowing that as more people start listening, you get to say I was there first.