KOL289 | Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 2: A Sober Conversation…

Kinsella on Liberty Podcast, Episode 289. [Update: Transcript appended below] This is my appearance on the Scottish Liberty Podcast from May 30, 2020, with hosts Antony Sammeroff and Tom Laird. We discussed IP and related matters, including Sammeroff's recent debate on the topic of IP with pro-IP Randian law professor Adam Mossoff. See various links, embeds, notes below. This was the second take, and entitled "A Sober Conversation with Stephan Kinsella...," because we had previously recorded a discussion on May 24, 2020, in which I was a bit drunk and went off on a rant. The episode was entitled "Under the Influence... of Stephan Kinsella... Against Intellectual Property". We then recorded this current episode on May 30, 2020. [Update: I recently (March 2021) realized I never posted the initial episode, so have just posted it as KOL326 | Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 1: Under the Influence…] See various links, embeds, notes below. Youtube of the current discussion: Youtube of the initial discussion, now posted at KOL326: Antony's previous debate with Mossoff: In his remarks, Mossoff mentioned this paper by Stephen Haber as supporting the empirical case for patents (funny, I thought the Objectivists had principles): Stephen Haber, "Patents and the Wealth of Nations," 23 Geo. Mason L.Rev. 811 (2016). I have read through it as much as I can stand and provide my critical commentary here:  “The Overwhelming Empirical Case Against Patent and Copyright”--see in particular note 3 and accompanying text. ❧ Transcript Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 2: A Sober Conversation With Stephan Kinsella (May 30, 2020) [Transcript of "Scottish Liberty Podcast: Discussing the Mossoff-Sammeroff IP Debate, Take 2: A Sober Conversation (May 30, 2020)] 00:00:01 ANTONY SAMMEROFF: Greetings people of planet Earth.  It must be episode 156 of the Scottish Liberty Podcast with me, Antony Sammeroff, and that ranty, ranty man, Tom Laird, back with us again. 00:00:15 TOM LAIRD: Thank you. 00:00:15 ANTONY SAMMEROFF: Sorry. 00:00:16 TOM LAIRD: I’m free. 00:00:17 ANTONY SAMMEROFF: He’s free.  The excellent, the extraordinary Stephan Kinsella.  Don’t mispronounce it Stephen.  Don’t be that guy.  Don’t be that guy.  Only an idiot would do that.  Thank you for joining us. 00:00:33 STEPHAN KINSELLA: Glad to be here with all four of us.  You said there was you, Antony Sammeroff, Tom, and me, so that’s four. 00:00:39 ANTONY SAMMEROFF: Excellent. 00:00:41 STEPHAN KINSELLA: I only see three people though. 00:00:43 ANTONY SAMMEROFF: So we’re going to talk about – you only – for those tuning in on Facebook and YouTube see that I kind of look weird because I’m trying this digital background.  But Zoom thinks that my face is part of the background, so I look… 00:00:57 STEPHAN KINSELLA: I think you’re triggering a lot of light-epilepsy people right now. 00:01:00 TOM LAIRD: I think it’s because your head looks like a planetoid. 00:01:02 00:01:04 ANTONY SAMMEROFF: I am the moon, the orbits, the Earth. 00:01:07 STEPHAN KINSELLA: He looks like a Marvel character like Ego the Living Planet or something. 00:01:12 ANTONY SAMMEROFF: So I guess we’re going to talk about IP and stuff like that. 00:01:17 TOM LAIRD: Whoa. 00:01:17 ANTONY SAMMEROFF: That’s crazy.  As some people know, probably heard a couple of weeks ago, I was debating this Adam Mossoff guy.  And there may have been some conversation that we had once before, but we don’t talk about that anymore because… 00:01:32 TOM LAIRD: Did he laugh at any point during the… 00:01:34 00:01:37 ANTONY SAMMEROFF: But let’s just say that there were some things that could have been said in that discussion that we never speak of – we don’t talk about anymore that weren’t discussed.  So I guess a good place to start would be what – you said one of the things annoying about Adam Mossoff is he never actually defines IP. So what – how would you – how do you define IP? 00:02:02 STEPHAN KINSELLA: Well, so this is – all right, the definition is intellectual property refers to a set of legal rights that – it’s like an umbrella term that covers four or five different types of statutory – mostly statutory rights, which are all not really related.  So it basically just is a term that people came up with to lump together some different types of law like the patent system, which covers inventions, and the copyright system, which covers artistic and creative works, and then the trademark system, which covers sources of goods and names, brand names, things like that, and then the trade secret system, which has some rights related to keeping secrets that you want your employees not to tell other people, things like that, and then maybe one or two other special things in modern times. 00:02:57 So they’re always – in a way they’re loosely related, and the reason the term bothers me is because it’s a propaganda term.  It was a new term that was invented I think in the 1800s when these new statutory systems, which were independent, the patent system and the copyright system, say, in the US, 17—I think—90, right after the Constitution – the US Constitution was ratified in 1789.  The very next year the Congress started enacting patent and copyright laws.  And they were thought of and characterized as monopoly privilege grants, and some people were in favor and some were opposed.  But no one had any doubt that they were just special monopoly privilege grants by the state for a particular purpose to incentivize innovation or something like that, which is why they only lasted in the beginning for about 14 years, like a finite time. 00:03:59 They were temporary things sort of like infant industry protections or tariffs, how they protect local industries.  No one thinks of these things as natural rights or property rights.  So then the free market economists in the 1800s started getting alarmed at the rise over the world, in the modern world, of the prevalence of patent and copyright, these monopoly privileges.  And so the people that were entrenched in industries depending upon these by now, the publishers, inventors of light bulbs, and these kind of new industries, things like this – they started defending these systems not on the utilitarian grounds, which is really the main justification given, but saying that, oh no, they’re not artificial monopoly privileges because everyone was getting skeptical of monopolies, even natural monopolies or free market monopolies or government-granted monopolies, whatever. 00:05:06 So they didn’t want to call them monopolies.  They didn’t want to call them what they are, which is government-granted privileges.  So they started calling them – they said, no, they’re property rights, and everyone said, well, if it’s a property right, as Antony pointed out in his opening comments in the debate, there’s not a scarcity thing.  Like there’s not a possibility of conflict.  Anyone can use these ideas at the same time, so how is it a property right, and why does it only last for 17 years, 14 years?  And nowadays copyright has been extended from the original 14 years to 100+ years.  It’s crazy. 00:05:43 TOM LAIRD: Wow. 00:05:43 STEPHAN KINSELLA: Why would – if it’s a property right, why would it expire at a certain arbitrary time?  And so the counter to that was, well, it’s a property right, but it’s a special type of property right.  It’s an intellectual, so they added the word intellectual to explain why it’s different and it has to be treated differently in the law.  But they want to call it a property right, which Mossoff did repeatedly.  He just kept saying it’s a property right because you can license it.  It has an economic value.  You can sell it.  But that is just not an argument for why the law is a good idea.  I mean you could – I mean honestly you could make the same argument about child slavery in the antebellum south in America. 00:06:25 ANTONY SAMMEROFF: That’s a good example. 00:06:26 STEPHAN KINSELLA: They were – slaves were property.  They could be traded.  They had a market value.  They contributed to the operation of plantations.  And you could ask all kinds of questions like instead of coming up with an argument justifying slavery and instead of responding directly to someone who explains why slavery is immoral and wrong, you could just come up with a fake rhetorical question.  And you could say but who would pick the cotton, which is not really a sincere question because that’s not really what they’re asking. 00:07:05 If you say, but who would pick the cotton, what you’re really saying is we all take it for granted that the cotton has to be picked.  That’s our ultimate value, so whatever you propose, you’re going to have to guarantee that the cotton will be picked.  So unless you can prove to me that the – your free market system abolishing slavery is still going to result in cotton being picked, you haven’t satisfied your burden of proof to me to get rid of slavery, which is exactly what Mossoff and these guys are saying when they say things like, well, how would you have – how would a novelist make money?  How would a pharmaceutical company recoup their cost without IP law?  So they ask this question, but the question is a loaded question because it takes for granted some assumptions that I don’t share and that free market economists don’t share because we don’t think there’s a guarantee to a profit, and there’s no guarantee to recoup the costs of your investment.  I mean what the hell is that?  So one reason, and my last thing, and I’m going to stop – shut up in a second because I talked over you guys, and I ranted.  I kept changing my subject many times.  I was so irritated because… 00:08:18