KOL333 | Jeff Tucker: Understanding IP: An Interview with Stephan Kinsella (2010)

Kinsella on Liberty Podcast, Episode 333. This is my interview by Jeff Tucker (Oct. 9, 2010), which preceded my first presentation of the Mises Academy course “Rethinking Intellectual Property: History, Theory, and Economics” (Nov.-Dec. 2010). For the second presentation in 2011, see KOL172 | “Rethinking Intellectual Property: History, Theory, and Economics: Lecture 1: History and Law” (Mises Academy, 2011). Transcript below. Youtube: https://youtu.be/-XlKNStzoLs Understanding IP: An Interview with Stephan Kinsella, Mises Daily (Oct. 21, 2010) 10/21/2010Jeffrey A. TuckerStephan Kinsella Jeffrey Tucker: Stephan Kinsella, it's a pleasure to have you here today. Welcome. Stephan Kinsella: Thank you. It's good to be here. Tucker: We're going to talk about your class for the Mises Academy, on intellectual property. Kinsella: Yes, I'm looking forward to it. We've been planning it for quite a while, as you know. I think the first course will be on November 1st for six weeks and then we'll take a week off. We'll have time to go in depth into many of the issues about intellectual property and its relationship to libertarianism, economic theory, and various other areas. Tucker: Why is this an important issue? Kinsella: Well, it's becoming a more and more important issue as we've seen in our circles and as seen on the internet. Daily, we see horror stories and crazy examples of abuses of IP. People are starting to wonder if these are really abuses of IP or if there's something wrong with IP itself. In the past, free-market economists and libertarians have sort of given this issue a pass. They took it for granted. It's been in a corner all by itself. Now people are wondering, and as we start looking more closely at it, we can see that a lot of the assumptions about IP have been wrong. Tucker: It's striking you mention the history of thought here and why this issue is sort of crystallizing in our time, especially with your pioneering monograph on that subject, Against Intellectual Property. It's generally true, isn't it, that that theoretical element of economics or law or whatever catches up when the practical need for that new theory comes along. For example, the theory of money and credit was made necessary by the advent of central banking. So, 50 years ago, IP wasn't that big a deal. Kinsella: I think that's completely true. Mises said something I've always loved. (Everyone focuses on a few of his statements that other people don't see, because he has so many great aphorisms and things.) He pointed out that in his view economics is purely deductive reasoning from a priori categories. Plus, then you explicitly introduce certain assumptions to make it interesting. [See my post Mises: Keep It Interesting.] "Interesting" was something I always focused on. So, in other words, we could talk hypothetically about a barter society forever, but it won't get us that far. So let's introduce the assumption that there is money in society. It's not a priori that there is money, but there could be money and, if there is, then certain things follow from it. I think that likewise in libertarian theory certain things become interesting at a certain point. In the past, as you mentioned in your talk yesterday here at the Supporters' Summit, it was not as easy as it is now to replicate information. There was sort of a tie in previous times between a good that was produced, like a book, and the information in it. The information in the book was in the physical copy of the book, so you could easily find a way to sell that. Now, with information being so easy to copy — And, of course, as Cory Doctorow mentions in one of his articles and speeches, do we think we are going to get to a point where it is going to get harder to copy and to spread information? No, it's only going to get easier. These things have made people confront the issue of the morality and the politics of sharing information. Tucker: It's not only technological advances, it's also dramatic changes in policy that have occurred over the last 15–20 years. Kinsella: Yes. Copyright and patent keep getting worse. The Western countries are twisting the arms of emerging economies like China to adopt a draconian Western-style intellectual property. This ACTA treaty that is coming up is terrible. It probably will be passed and it will impose protections around the world similar to what we have in the United States in the DMCA (Digital Millennium Copyright Act). Tucker: Is this enforced by the so-called World Intellectual Property Organization? Kinsella: The WTO will have a role in it, yes. The WTO is the World Trade Organization and the WIPO is the World Intellectual Property Organization. I'm not sure of their relationship to this. Tucker: But it's a UN organization, so you've got really international teeth growing here. Kinsella: Correct. Right. Tucker: And the prospect for unbelievable abuse. And you know what's striking about this to me? Here you have a sector of vast state expansion and imposition on individual liberty, and it's occurring in the name of property rights. Kinsella: Right. This is what is striking. When you start looking at this, you'll see that even libertarians, for a long time, have regarded patent and copyright as types of property rights. So they sort of assumed this is part of the property-rights panoply we should respect. It's in the American Constitution … Tucker: I should tell you I've always assumed that too. Unquestioned, really. Kinsella: But, when you look at the history of it, the origins of copyright lie in censorship, literal censorship. Basically, they were afraid of the "menace of printing," because now the church and the government couldn't control so easily the distribution of what thoughts were, officially, to be promulgated to people. So the roots of copyright are in censorship, literally. The roots of patents — this is something I will mention in the speech at the Supporter's Summit. I was mentioning it to you the other day. Ironically, the origins of patents are in piracy, literally in piracy. Nowadays you hear the defenders of IP attack so-called pirates. Of course, as you and I have discussed, they are not pirates at all, because real pirates kill people and break things and take things from you and make you worse off. IP pirates don't do that. One of the original uses of what is called letters patent was a grant to Francis Drake. Drake became a privateer, which is nothing but a legalized pirate. He went around the world using these letters patent, granted to him by the Queen of England, to plunder and to steal and to bring the treasures back home. He was literally a pirate authorized by a patent. So patents and piracy do go hand in hand actually. [See The Real IP Pirates.] Tucker: Now a lot of this history is being unearthed, again, only recently because of the change in technology and the intensification of the law have caused people to now look more carefully at the foundations of something that was previously largely unquestioned. Although, Hayek has some passages in his work that were explicitly against copyright and patent. Of course Rothbard was against patent; he had a clear statement about his views on copyright. He was in favor of so-called common-law copyright, which is more or less a free-market position. And Mises provides enough good reason to question the whole idea that you could have ownership of ideas. I think it is pretty clear that he did not believe you could own ideas. So you have these strains in the Austrian tradition and, of course, it's not only the Austrian tradition that matters here. It's just that the Austrians have been the ones who have done the most serious thought about it, right? Kinsella: In thinking hard about this issue myself, I have noticed that having an Austrian background, as usual, helps to see these issues more clearly. It has helped me in legal theory and other areas, but here especially. You can see why Mises, even though he didn't devote a lot of attention to this issue, didn't go off track too far because his focus on the structure of human action kept him from doing that. He saw the role of ideas as a guide to human action. It was not the means of action. The means of action are scarce resources, which have to be economized, but Mises saw that human action is guided by ideas. So he glimpsed, although he didn't unfold it too much, he glimpsed that ideas — as you mentioned in your speech — that ideas cannot be destroyed. They can last forever. They're infinitely reusable. They're malleable, which also, I guess, Hayek would see as well with his emphasis on tacit knowledge. Tucker: Isn't it great, too, when Mises says ideas are not phantoms; they're real things? Kinsella: They are things. And I think the mistake made by sort of crude philosophizing by a lot of libertarians, is they'll say well, if it is a thing, then it can be owned. "Thingness" is not the criteria for ownability. There is something else, which is scarcity or something like that. It's not to denigrate their importance. And a lot of utilitarian-minded people just assume that if you're skeptical about intellectual property then you are anti-intellectual or you are hostile to the role of ideas. Of course, it is the other way around. Intellectual property hampers innovation. Intellectual property literally imposes censorship on people. It literally prevents you from using knowledge that you have. So, basically, getting rid of IP, one of the goals there is to enhance innovation and to enhance intellectual freedom. Tucker: Make every industry work the way the fashion industry has managed to live and thrive without IP. Kinsella: Absolutely. We're used to that now,