 This is The Lou Rockwell Show. It's great to have Stefan Kinsella with us today. Stefan is an attorney in Houston, Texas, specializing in patents and trademarks. He's a writer. If you take a look at his archive at lourockwell.com, also his archive on mesis.org, also the author of many, many legal books published in this country and abroad in his area of specialization. And today I want to talk to him about intellectual property about the whole concept of government patents and government copyrights. He's really enacted a revolution in this area among libertarians. But Stefan, before we get into that, you're in Houston. You've just had that horrific hurricane. Talk to us a little bit about how comforted you are by Mayor White of Houston and other government officials taking care of you. Well, let me just say I'm here in Baton Rouge waiting for power to be restored. And nice to be with you, by the way. But from one of the things I've heard is the curfew that the government is imposing to make their job easier, of course, to just automatically suspect anyone who's roaming around being a criminal automatically. So it's amazing that people think the government's doing a great job there. I saw Mayor White on television reminding everybody that the electric lines were all owned by a private company. And therefore, of course, the government, which was entirely in control and up to snuff in every other area, couldn't restore people's electricity because that was some of those awful private firms. Right, yeah. They try to blame any failure they can on the private sector, even if their fingers are all over it. Stefan, talk to me a little bit about intellectual property. I think you've pointed out that not only is it not property, but the concept is used by the government and by private interests in order to infringe real property rights. Yeah, this is to me the most striking thing about it. A lot of libertarians and economists sort of come to the table presuming that IP is a legitimate type of property right. It's one of these strange things where leftists oppose it because they assume it's property and conservatives and libertarians endorse it because they also believe it's property. And in a sense, both are wrong. The leftists seem to sort of sense this. I'm not sure if they sense it really because of any perspicacity or because of their general hostility towards industrialism and commerce. And there's some sense that this is part of it, but they sense something is wrong with the oppressive way these laws are used. But when you step back and think about it, as I did a long time ago when I started practicing IP law around 92, 94, when I assumed that it was legitimate, having read Rand and other free market thinkers who sort of took it for granted, their justifications really didn't make a lot of sense. And the more you think about it, you realize that to enforce these property rights, these so-called property rights, you have to basically set up an intrusion, a system that intrudes into legitimate property rights that already exist. It's almost like the libertarians fall prey to this, the notion that liberals fall prey to where they believe you can just create more and more positive rights with no penalty without realizing that these rights dilute real rights, right? Like welfare rights are not free. They come at the cost of property rights because they require us to invade people, bank accounts and paychecks and pay for these welfare rights. And it's the same thing with intellectual property rights. The more you proliferate these type of rights, the more you enforce against physical property that already exists. So the primary case against intellectual property, in my opinion, is moral. It requires an intrusive state, state bureaucracy. It's basically a socialized redistribution of wealth from existing property owners to another class of people favored by the state, class of innovators or basically people that register appropriate documents with the federal government. Stefan, I know that Murray Rothbard thought that patents were illegitimate grants of government monopoly, but what about copyrights? You've shown that copyrights are as much an illegitimate grant of government monopoly as patents are. I believe Rothbard's intuitions were heading in the right direction. What he was trying to do was he was trying to say that you could use some kind of private contractual regime, regime that would be legitimate to create some of the benefits that people point to in a copyright or patent system. In the example he gave, he gave an example of a mousetrap. Now, under typical IP law, that's an invention which is covered by patents. Murray called it a case of copyright because he was thinking the pattern of a mousetrap could be copied by, you know, the buyer of a mousetrap. Basically, his idea was that if you stamp it copyright, you're putting the buyer on notice that he can't use it in certain ways. And I think actually that's correct as far as it goes. I think he did misstep a little bit where he extended that to cover the case of third party because to do that requires requires the assumption that knowledge is also property because the third party has the permission of the second party, the buyer or the seller, unless knowledge was property. If he's merely using knowledge, he gains from state observing the purchaser's mousetrap. So I think that is the mistake he made there. He was basically trying to construct a contractual system. And I do believe that more work can be done in that area and more contractual mechanisms could come up with a pretty advocate point to. Part of the problem, of course, is that the government outlaws a lot of the mechanisms that the free market would adapt or adopt to address these problems with antitrust law, for example. If many companies got together to form a cartel to have some kind of protection or a way to address the free rider problem, for example, in a given industry, it would be a cartel and illegal under the antitrust law. So we can't see right now exactly what contractual mechanisms people would come up with. But certainly, I think contractual regimes would be perfectly legitimate. And to push your monograph on intellectual property is available on Misesorg at the Misesorg store. But it seems like this is one instance in which the libertarians, the consultant libertarians have really got the people with them. Is there anybody, is there any young person, is there anybody under 30 in the United States who takes the RIAA side against copiers of music? I mean, it seems, and the Motion Picture Association similar activities. I mean, these are hated organizations. They, of course, work in cahoots with the government to try to suppress copying of music and copying of movies. I agree. It's actually striking how uniform the libertarian sentiment is about IP at least among those that are younger or that are tech savvy or that have any familiarity with Austrian economics or Rothbardian type libertarianism with that as principle, property rights based libertarianism. And it appears to me that the RIAA is viewed almost like the IRS. You know, it's like no one knows that he went to work for the RIAA or that it's maybe some obscure third cousin or something and they don't talk about it at cocktail parties too much. It's universally seen as being illegitimate. And not only that in practical, the RIAA is widely condemned by almost everyone in the industry, even people that don't have a strident or a principled deal on IP, they think it's crazy what these guys are doing. They're going after their own customers. 20,000 people. It looks like the flailings of a dying beast. I remember there was one point in which Congress was preparing to adopt and maybe they did adopt a plan the Republicans were pushing it to allow the movie industry, the record industry to actually destroy people's computers to be able to reach into them with in effect their own viruses if you had music or movies that they claimed you shouldn't have or that they would be able to for example erasure a hard disk. Yeah, I think that was, I think Orrin Hatch actually advocated that. That was the evil Orrin Hatch. Yeah, a good Republican supporter of property rights, correct? So here's what is obviously a criminal act. The sort of act that the government is otherwise hysterical about people who are hackers and spammers and that sort of thing. And yet of course the government is advocating to use these tactics itself in defense of the interest that it approves. Yes, I agree. I mean, I think this is what you get when the government tries to outlaw essentially peaceful non-criminal activity. If there's a demand for something then there is clearly a demand for the ability to copy. I mean, copying is a natural thing to do. This is how we learn, right? This is how we transmit information. The entire creative process even in technology or in the art relies upon copying. That's what it's about. Adapting and building in plots from well-known novels and plays and ideas that have been circulating in society for dozens or hundreds of thousands of years and building upon them. So copying is natural and as I think Corey Dockrow points out in a recent really insightful piece, copying is not going to get any harder. Copying is going to get even easier. The Internet is the world's greatest copying machine. The attempt to suppress copying is going to require draconian measures that are going to suppress people's liberty. And are it ultimately going to be impossible? I think it will be impossible, especially as cryptography and encryption techniques become more readily available and widely used. Which is going to result, of course, in selective enforcement and posing draconian penalties unless it's people until hopefully the perspective of this will be so dramatically seem to be unjust that it will just wither away or not be enforced too much. Steven, just one last point. Where did Rand go wrong? I can remember her arguing that if I can paraphrase in a sense that he was some sort of mystic of the muscle of the U.S. Constitution's view of patents and copyrights was exactly right, that you were a communist. But it seems to me she had very little argument for this. Well, yeah, I think there was a couple of missteps that she made. One was, as you know, her sort of religious adherence to the American scheme of government. Which was almost perfect in her mind and only a few. So she sort of took for granted her slavery and a few other matters. And in fact, one striking example of that is, on Rand tried in her weak attempt to defend intellectual property she tried to defend the practice which is called first to a file. Which means the first inventor to file a patent application wins and gets the patent. So she had this tortured argument for why this makes sense. Because she mistakenly believed that was the American law. Of course it's not the American law. The American law is the first person to invent would win in the case of a contest. Unlike the rest of the world. So that's just an example of her sort of reverse engineering, I believe is just trying to justify whatever the Constitution said. But I believe the central mistake is the sort of confused notion that creation is an independent source of property rights. Probably stemming from the mixture of the idea of creation with economic prosperity and productivity and homesteading and all these notions. Unless you carefully sort them out, you might be mistaken for thinking that creating things of value is one source of property rights. But if you think about it carefully you can only create value with property that you own. And if you own the property you already have the property rights. So the creation of value is just a way of transforming goods that are already owned. So I believe that identifying creation as an independent source of property rights is similar to the idea, similar to what liberals do when they try to create positive welfare rights. It's just an additional right they believe, but it has to undercut the already existing rights. And the same with basically attaching property rights to creation as a right. Basically, if you understand how the system works, it cannot work without a state, a legislature to create these schemes and a huge massive government bureaucracy to administer it. It cannot. So anyone advocating patent and copyright is in effect advocating bureaucracy, the state and legislation which are clearly libertarian in my opinion. Steven Concello, thanks so much for being with us. I want to urge everyone to take a look at his archive at lourockwell.com. Take a look at his archive at Mises.org. Read his book on intellectual property that's for sale in the Mises store or you can read it for free online in a PDF. Indeed, you can just put Concella, K-I-N-S-E-L-L-A and intellectual property into Google and you'll find out all kinds of great things. And let me also mention his own site. Stefan is a pioneering libertarian theorist and doing great work and Stefan, thanks so much. You've been listening to the Lou Rockwell Show. Produced by lourockwell.com the best read libertarian website in the world. If you'd like to advertise on this podcast or on the website email advertise at lourockwell.com and thanks for listening.