KOL217 | Intellectual Property is the Bastard Child of the Gatekeepers

Kinsella on Liberty Podcast, Episode 217. This is Episode 14 of the MusicPreneur podcast, "Intellectual Property is the Bastard Child of the Gatekeepers," run by host James Newcomb (recorded Jan. 9, 2017; released Jan. 31, 2017). I appeared on his previous podcast, Outside the Music Box, a while back (KOL204 | Outside the Music Box Interview: The Ins and Outs of Intellectual Property). This one is a fresh, stand-alone discussion where I lay out the case against IP fairly methodically. MusicPreneur shownotes below. See also my A Selection of my Best Articles and Speeches on IP. GROK SHOWNOTES: In this interview on the MusicPreneur podcast, libertarian patent attorney Stephan Kinsella delivers a wide-ranging critique of intellectual property (IP) laws—especially patents and copyrights—calling them illegitimate state-enforced monopolies rooted in historical gatekeeping, censorship, and privilege rather than genuine property rights (0:00–10:00). Kinsella traces the origins of copyright to pre-printing-press censorship by church and crown, through the Stationers’ Company monopoly, to the 1710 Statute of Anne, and patents to royal letters patent and mercantilist grants (e.g., the 1623 Statute of Monopolies), arguing that both systems were designed to control knowledge and speech, not to protect creators (10:01–25:00). Using Austrian economics, he explains that property rights exist only for scarce, rivalrous resources, while ideas are non-scarce and cannot be owned; IP artificially creates scarcity, restricting how people use their own tangible property (e.g., a patented mousetrap) and stifling competition and innovation (25:01–40:00). Kinsella critiques the economic and cultural harms of IP, including inflated prices in pharmaceuticals, litigation costs, and censorship of expression, contrasting these with IP-free industries like open-source software and fashion that thrive on emulation and first-mover advantage (40:01–55:00). He debunks common pro-IP arguments—the utilitarian incentive story, labor/creation-based claims, and personality theories—labeling them flawed, self-serving, or empirically unsupported, and argues that IP is a modern form of mercantilism that benefits gatekeepers (large corporations, Hollywood, Big Pharma) at the expense of creators, consumers, and freedom (55:01–1:10:00). In the discussion/Q&A portion, Kinsella addresses alternatives (trade secrets, reputation, market incentives), the digital age’s erosion of IP enforcement, and why even small creators would be better off without IP, concluding that the system should be abolished entirely (1:10:01–end). This interview is a clear, provocative libertarian takedown of IP, especially valuable for musicians, creators, and entrepreneurs. Transcript and Grok Detailed Summary below GROK DETAILED SUMMARY 0:00–10:00 (Introduction, Kinsella’s background, and the core thesis, ~10 minutes) Description: Host James Newcomb introduces Kinsella as a patent attorney and libertarian critic of IP. Kinsella explains his unusual position: he has prosecuted hundreds of patents for large companies (Intel, GE, Lucent, etc.) while believing all forms of IP should be abolished. He states his central thesis: IP is the “bastard child of the gatekeepers”—a modern continuation of historical censorship and monopoly privilege, not a legitimate form of property. He briefly previews the historical and economic critique to come. Key Themes: Kinsella’s dual role: patent lawyer who opposes patents/copyrights IP as illegitimate monopoly privilege, not property Framing: IP is rooted in gatekeeping (church, state, guilds, publishers) Summary: Kinsella establishes his credentials and the provocative title, setting up IP as a statist, gatekeeper-derived system rather than a natural right. 10:01–25:00 (Historical origins of copyright and patent: censorship & mercantilism, ~15 minutes) Description: Kinsella traces copyright to pre-printing-press church/state control of scribes, then to the Stationers’ Company monopoly (chartered to control printing), and finally to the Statute of Anne (1710), which shifted the monopoly from printers to authors/publishers but remained a state privilege. Patents originated in royal “letters patent” (open letters granting monopolies), abused by monarchs for revenue/favors, leading to the 1623 Statute of Monopolies. Both systems were originally about control, censorship, and mercantilist privilege, not “property rights.” Key Themes: Copyright as successor to censorship monopolies Patents as royal/mercantilist grants Both were temporary privileges, not natural rights Summary: Detailed historical account showing IP began as censorship and monopoly tools of the state and crown, not as recognition of creators’ natural rights. 25:01–40:00 (Scarcity, property rights, and why IP is conceptually impossible, ~15 minutes) Description: Kinsella explains the Austrian/libertarian view: property rights exist only to allocate scarce, rivalrous resources and avoid conflict. Ideas, patterns, and information are non-scarce (infinitely reproducible without depriving others), so they cannot be owned. IP law therefore artificially creates scarcity where none exists, restricting how people use their own tangible property (e.g., ink, paper, machines). He uses the mousetrap example: a patent doesn’t take your mousetrap away; it takes your right to use your own materials to build one. Key Themes: Property rights exist only for scarce/rivalrous things Ideas are non-scarce → cannot be property IP = negative easement / servitude over others’ physical property Summary: Core conceptual critique: IP is impossible in principle because ideas are non-scarce; enforcing IP violates real (physical) property rights. 40:01–55:00 (Economic and cultural harms of IP; modern gatekeepers, ~15 minutes) Description: Kinsella discusses IP’s practical harms: patents distort R&D toward trivial patentable inventions, create litigation wars, raise prices (pharma), and enable patent trolling. Copyright locks up culture, limits remixing/fan works, and creates gatekeepers (publishers, labels, Hollywood). He compares modern IP enforcement (domain seizures, ISP cooperation, warrantless searches) to historical mercantilist abuses, arguing that large corporations are the new gatekeepers using IP to extract rents and suppress competition. Key Themes: Economic harms: litigation, price inflation, distorted R&D Cultural harms: locked-up works, stifled remixing Modern IP = mercantilism 2.0; big corporations as new gatekeepers Summary: IP creates massive economic waste and cultural enclosure, serving corporate gatekeepers rather than creators or consumers. 55:01–1:10:00 (Debunking common pro-IP arguments, ~15 minutes) Description: Kinsella systematically dismantles the main justifications for IP: Natural rights / Lockean labor theory (flawed metaphor; labor is not ownable; creation is not a source of title). Utilitarian incentive story (empirical evidence shows IP does not increase net innovation; costs outweigh benefits). Personality theory (Hegel/Rand; vague and does not justify monopoly). He also rejects contractual IP schemes (cannot bind third parties) and notes that even trade secrets become problematic when turned into state-enforceable misappropriation causes of action. Key Themes: Natural rights / labor theory is conceptually confused Utilitarian case is empirically weak Personality theory is vague and insufficient Summary: Comprehensive takedown of every major intellectual justification for IP, showing they are either conceptually flawed or empirically unsupported. 1:10:01–end (Digital age, AI, future evasion, and conclusion, ~remaining time) Description: Kinsella discusses how digital technology is eroding copyright (easy copying, encryption, Tor) and predicts that maturing 3D printing + encrypted designs will eventually make patents unenforceable (1:10:01–1:15:00). He notes that AI is already being hampered by copyright threats (training data lawsuits), and hopes the immense value of AI will force society to confront the conflict between IP and human progress (1:15:01–1:20:00). He closes by reiterating that IP is a modern mercantilist gatekeeping system, not property, and calls for its abolition, directing listeners to c4sif.org for more systematic arguments (1:20:01–end). Key Themes: Digital technology is making copyright obsolete and unenforceable AI vs. IP: the coming conflict • • Final call to abolish IP and make it “history” Summary: Kinsella looks forward to technology eroding IP enforcement, highlights the AI-copyright tension, and concludes with a call to end IP entirely. SHOWNOTES from host James Newcomb 01/31/2017 | 0 Listen to this episode Play / pause 1x Intellectual Property is the Bastard Child of the Gatekeepers (Ep. 14) 0:00 0:00 Intellectual Property is the Bastard Child of the Gatekeepers (Ep. 14) Download "Doing Business Without Intellectual Property!" Download stephankinsella.com You're probably going to disagree with what is said in this episode. In fact, it could very well make you angry. But, as Bob Dylan said, "The times, they are a changin'." It's an issue that I've wrestled with over the years and have finally come to the conclusion that Intellectual Property (IP) is detrimental to progress and innovation. While on the surface it appears to protect the rights of content creators to profit from their content, the reality is that the only people who really profit are the "gate keepers" and those who hang out near "the gates". I've tried to take a "back door" approach with this issue before,