KOL421 | The Local Maximum with Max Sklar: Ep. 297 – The Fallacy of Intellectual Property

Kinsella on Liberty Podcast: Episode 421. This is my appearance on Episode 297 of The Local Maximum with host Max Sklar. Recorded Sep. 13, 2023, published Sep. 27, 2023. From their shownotes: Max talks to Stephan Kinsella, a libertarian intellectual property lawyer who ardently challenges the very foundations of IP. Kinsella delves deep into the core arguments underpinning intellectual property and the inherent fallacies. They also discuss the impact of generative AI on the copyright landscape. Transcript below. Transcript Max Sklar: You're listening to the Local Maximum episode 297. Narration: Time to expand your perspective. Welcome to the Local Maximum. Now here's your host, Max Sklar. Max: Welcome everyone, welcome, you have reached another Local Maximum. We are going to get a really interesting perspective on intellectual property today from Stephan Kinsella. He is an intellectual property lawyer who is actually against the whole concept of intellectual property that includes patents, copyright, the whole thing. Now, for those of us on the outside, there's still a lot that we need to learn about IP, like, what are all these different concepts? Why are they considered necessary by the mainstream? So we go back to basics a little bit, go over what patent and copyright is and why you still need to use it and think about it even if you don't agree with it. And then we're going to take a turn into the issues of the day with generative AI models and how copyright law may end up getting applied to these processes, by the authorities, by the powers that be and the harm that this could possibly do. All right. My next guest is a libertarian writer and registered patent attorney in Houston. He has spoken, lectured and published widely on various areas of libertarian legal theory and on legal topics, such as intellectual property law and international law. Stephan Kinsella, you've reached the Local Maximum, welcome to the show. Stephan Kinsella: Thank you, glad to be here. Max: Yeah, really glad to have you and your work on intellectual property and copyright. First of all, that's a topic that, you know, not everyone can make it interesting for me, whenever I listen to your stuff on it, I always I always find it's more interesting. So I appreciate that. And I agree with you on a lot of things. So that's it. I just appreciate the way you present it. You've been opposed to IP for quite a while. When did you come to this kind of full? Well, what is your full position? I think it's like, you know, no patent, no copyright? Is this your full position? And when did you come to this position? Was it before after going into IP law? Stephan: About the same time I was a, I was a libertarian and college and in law school, but I was always unsatisfied with the arguments for IP that I had heard by Ayn Rand and others, I assumed it was a legitimate type of property right because it was in the Constitution, and it's part of so-called capitalism, and everyone was in favor of it. But their arguments didn't make sense to me, because, you know, most of the arguments were either well, they're either utilitarian or incentive based, or they're kind of a deontological, or principle based, like have a natural rights argument. And the natural rights argument just makes no sense because the patent and copyright expire after a certain number of years, which, which is not how other property rights work. So it seems to me like if you're trying to do a natural rights argument, which Ayn Rand did, and then you say, but that copyright should expire in 100 years, and patent should expire in 17 years. It's weird that you just have this arbitrary number, which, of course, the government would have to make up and they have no basis for it. And if you do a utilitarian argument, then I just don't think that you never hear any evidence, you just hear anecdotes and the same old arguments, so I was dissatisfied with it. And when I started practicing law in 1992, I was doing oil and gas law at first in Houston. But then I decided to switch to patent law. So I could move around the country because it's a national field. So I started learning patent law, studying, taking the Patent Bar Exam. At the same time, I redouble my efforts to try to figure out from a libertarian point of view, like, I thought I was going to be the one to come up with the right argument for IP to explain it. So I kept searching and searching and trying and trying and one argument after the other and I kept failing. And finally I realized, well, the reason I'm failing is because this is not justifiable. And as my understanding of property rights got clearer — which I had to sort out to figure this out — I realized that patents are totally illegitimate. Probably around ‘93 or ‘94 right? Right around the time I passed the Patent Bar. So at the moment, I became a patent lawyer, I also realized that all intellectual property rights, I would say every intellectual property rights, illegitimate patent, copyright, trademark trade secret law, all of it. And not just those but any any type of right in an intangible or an immaterial object is an invalid right because it always ends up stealing property rights from existing owners of tangible objects. So I came to that conclusion. I was cautious about admitting that in public at first because I thought it might hurt me in my career to be a patent lawyer who thinks the whole patent system should be abolished. But over time I gradually let my opinions out there and I realized no one cares. No one in the business world cares what my private opinions are. In fact, it helped me get clients because they figured I must know what I'm talking about, if I'm so passionate about this topic to write on it, so it never hurt me in my career that I noticed. Max: So I, yeah, I found that interesting, you get your patent, you become a patent attorney, you come to the conclusion that all of these laws shouldn't be there. And yet you stay in that field. You know I feel like your experience in this role must have been so different from every other patent lawyer out there. Stephan: Most of them either don't care to think about these issues, or they have self serving arguments, you know? For me, now, if you understand — I actually don't think you need to know IP law on the detail level, like a professional like me does to understand the case against it. So I don't think that I came to my anti-IP conclusions, because I knew the law. I think that because I was going into the law, it made me turn my attention as a libertarian to it. And that's what made me figure it out. Now, knowing the law does help a little bit, because it helps me communicate precisely. A lot of people that talk about IP, either pro or con mangle the terms, they confuse copyright and trademark and patents because they don't get it. But knowing the field really well, like I do, helps me understand that there are ways to engage in the practice of that law that are not incompatible with opposing it on moral grounds, because, so I look at my job, I help people acquire patents. So to me that's analogous to selling guns to someone, or weapons or bullets maybe. And guns and ammunition has a good, you know, has a justifiable purpose, and it has a bad purpose, you can use it aggressively or you can use it defensively. So merely selling someone a bullet, or a gun, per se doesn't mean that you endorse using it aggressively. And in fact, most people acquire patents for defensive purposes. Like given that the system exists. If you don't have patents, you're vulnerable to attack and a patent infringement attack by someone else. So it's a waste, it's a huge waste of society. But given that the system exists, obtaining patents is a little bit like buying insurance. And I have never helped in litigation with the aggressive side, I've only helped with the defense side, which I think is perfectly legitimate. Or in a countersuit like I would have no problem using one of my clients patents to, to countersue someone if they sue me first, you know, it's like once you open that door. So that's how I started to justify it. I steered clear of being part of the aggression. And I only provided the patents to people. Now that said, I still didn't enjoy it, because I knew that what I was doing was, in a sense, a waste on society. But given that it's there as sort of like a, the way I analogize is like an oncologist, a doctor who tries to he gets paid a good salary to help people fight cancer. But if he's a decent human being, he would like there to be a world where cancer was cured and abolished, even though that would put him out of a job maybe right? Or put it this way, defense attorney, a libertarian defense attorney who gets paid to defend people from drug charges. He would prefer there to be a world where drugs are not illegal, which means he would be put out of business, but it's not hypocritical or unethical of him to defend people who are attacked by the state for drug charges given that the system exists. So I think that's the best way to look at the best positive spin to put on being a patent practitioner like I’ve been. Max: Yeah, that I almost had a flashback for I you know, I worked at Foursquare for many years. And it wasn't, you know, I was an engineer. I wasn't on the legal side or anything. But I remember we were always having these like, kind of patent trolls come after us. And it was like, Well, what did they say we copy? He's like, Oh, he claims he has a patent on all online commerce that takes place based on latitude longitude. It was like that, that sounds — I didn't get into the details. But I'm like that, that sounds a little crazy. Stephan: That's the thing about patent trolls is, everyone says patent. People say we need to reform the patent system because it's broken. And they'll say something like, there's too many bad patents issued.