KOL388 | Cantus Firmus with Cody Cook: Against Intellectual Property

Kinsella on Liberty Podcast: Episode 388. I was a guest on Cantus Firmus, with host Cody Cook (episode released July 8, 2022; recorded July 7, 2022). We discussed IP etc. Recently re-podcast as Libertarian Christian Podcast Ep. 423. Grok shownotes and transcript below. From his shownotes: Stephan Kinsella was my guest to talk about “intellectual property,” the concept that an individual’s ideas belong to them and should be protected from free use by others through law. Stephan is a patent attorney and libertarian writer in Houston whose book Against Intellectual Property is the seminal writing on this subject. We discussed why intellectual property is not really property, why it places an undue burden on society, and how it inhibits the free exchange of culture and ideas. He can be found at www.stephankinsella.com, at the Center for the Study of Innovative Freedom, and on Twitter @NSKinsella Resources mentioned in the podcast: Stephan Kinsella’s Against Intellectual Property – Amazon and Free from the Mises Institute Stephan’s Soho forum debate Abolish Copyrights and Patents? RiP: A Remix Manifesto – Amazon Video and Free on Youtube Richard Stallman’s book Free Software, Free Society Not discussed in the podcast, but relevant to this discussion, is my own essay Open Source Jesus: A Manifesto for a Liberated Church See also “Libertarians and the Catholic Church on Intellectual Property Laws” (2012) and KOL243 | Libertarian Christians Podcast with Norman Horn: Intellectual Property. https://youtu.be/SHOSK-i9q2I Grok shownotes: Show Notes for Cantus Firmus Podcast Episode with Stephan Kinsella Introduction and Background Topic: Guest Introduction and Motivation for Discussing Intellectual Property [0:08] Cody Cook introduces the podcast and guest Stephan Kinsella, a patent attorney and libertarian writer from Houston, to discuss intellectual property (IP). [0:26] Stephan Kinsella shares his dual journey into IP: his early interest as a libertarian questioning the weak arguments of pro-IP figures like Ayn Rand, and his career shift to patent law in 1992, which deepened his legal and theoretical engagement with IP. He explains how his dissatisfaction with existing justifications led him to conclude IP lacks a valid basis, prompting him to write and advocate against it, noting growing libertarian opposition over the past 20 years. Personal Experience as a Patent Attorney Topic: Ethical Practice and Career Impact [3:03] Cody Cook asks about Kinsella’s experience as a patent attorney opposing patents. [3:13] Stephan Kinsella discusses his initial hesitation to write critically about patents due to career concerns, but found it enhanced his credibility with clients, who valued his expertise over his views. He distinguishes between patent prosecution (helping acquire patents) and litigation (suing or defending infringement), deeming only offensive litigation illegitimate as it resembles aggression. He likens his role to a “weapons merchant” or “cancer doctor,” helping clients navigate a flawed system defensively, though he finds it increasingly distasteful as a “fraudulent sham.” Defining Intellectual Property and Its Issues Topic: Overview of Intellectual Property and Its Origins [7:44] Cody Cook seeks clarification on why IP isn’t real property, assuming listener familiarity. [8:13] Stephan Kinsella explains IP as a complex, intentionally obscure field, with the term “intellectual property” as propaganda to counter 19th-century free-market critiques. He outlines private law’s focus on scarce resource ownership (e.g., bodies, land) via self-ownership and homesteading, contrasting it with state deviations like patents (originating from royal monopolies in 1623) and copyrights (from the 1710 Statute of Anne to control printing). He argues these are unjustified government-granted monopolies, not natural rights, undermining true property rights. Topic: Property Rights vs. Intellectual Property [8:13 cont.] Kinsella elaborates that property rights involve enforceable exclusion of others from scarce, tangible resources, impossible with intangible ideas. He compares IP to illegitimate slavery (using physical force on bodies) and labels it a “negative servitude” (veto over others’ property without consent), akin to contractual homeowners’ association rules but imposed by the state, distorting property concepts like taxation or inflation hides government takings. Universals Argument Against IP Topic: Conceptual Critique of Owning Ideas [23:43] Cody Cook references Kinsella’s book Against Intellectual Property, noting an argument about owning universals. [23:48] Stephan Kinsella confirms the book title and explains the universals argument: owning ideas (e.g., a book’s pattern) is like claiming ownership of a universal (e.g., the color red), which conflicts with real property rights. He illustrates with a red car—owning the car doesn’t mean owning “red”—and argues IP’s abstract nature undermines tangible ownership, likening it to incompatible positive welfare rights. Topic: Praxeological and Practical Property Perspective [23:54] Kinsella delves into Mises’ praxeology, viewing humans as actors using scarce resources (e.g., a spear) to shape the future, leading to a colloquial use of “property” as personal characteristics. He warns against conflating this with legal property, using the red car example to show owning a thing’s physical integrity, not its properties (e.g., color, age), reinforcing that information (e.g., a book’s text) is a pattern on owned media, not independently ownable. Utilitarian Arguments and Empirical Evidence Topic: Constitutional and Utilitarian Justification for IP [33:13] Cody Cook raises the U.S. Constitution’s utilitarian argument for patents to advance arts and sciences, asking Kinsella’s response to claims of incentivizing creation despite IP not being “real.” [34:12] Stephan Kinsella critiques the shifting IP defenses from natural rights to utilitarian claims, debunking the founders’ intent as a self-interested hunch, not empirical, rooted in British practices. He challenges the premise that law’s purpose is to optimize innovation, asserting it’s about justice and property allocation, and notes the lack of conclusive evidence (e.g., Fritz Machlup’s 1950s study) supporting IP benefits, with industry claims (e.g., $5 trillion GDP contribution) being correlative, not causal. Topic: Economic Distortions and Lack of Data [34:12 cont.] Kinsella highlights IP’s costs (e.g., billions in legal fees) and distortions (e.g., favoring patentable applications over theoretical research), countering common sense with no solid proof of net benefit. He cites the absence of patents in major medical milestones (e.g., penicillin, insulin) and CDC achievements, suggesting IP, like in pharmaceuticals, inflates prices (e.g., insulin monopolies) due to government schizophrenia—imposing regulations and patents, then criticizing high prices. Practical Examples and Incentives Topic: Real-World Impact and Insulin Example [41:17] Cody Cook cites his wife’s type 1 diabetes, where patents raise insulin costs due to monopolies, questioning if abolishing IP might slow technological progress. [42:51] Stephan Kinsella reframes the debate, arguing law’s purpose is justice, not innovation optimization, which lacks a logical limit (e.g., extending patent terms or heavy subsidies). He notes IP’s implicit tax reduces consumer spending power, potentially stifling other innovations, and cites studies (e.g., Boldrin and Levine) showing patents drag on net innovation, with examples like unpatented medical breakthroughs (e.g., aspirin, vaccines) and government hypocrisy in pharmaceutical pricing. Communitarian and Ethical Perspectives Topic: Stallman’s Open-Source and Christian Sharing Arguments [48:34] Cody Cook shifts to Richard Stallman’s view that proprietary software is antisocial, contrasting it with early Christians’ free distribution of biblical texts, asking if Kinsella resonates with these communitarian arguments or accepts contractual end-user agreements. [50:06] Stephan Kinsella acknowledges Stallman’s good instincts but critiques his confusion, rejecting copyleft as dependent on copyright and favoring CC BY or CC0 licenses. He supports voluntary contracts (e.g., no-copy agreements) but deems them impractical without copyright’s backdrop, citing high penalties’ ineffectiveness. He aligns with Jeff Tucker’s view that religious texts should be freely shared, not copyrighted, and questions paywalling non-profit libertarian works, advocating against censoring idea spread. Cultural Impact and Remix Culture Topic: Cultural Ownership and Remix Manifesto [54:31] Cody Cook references Rip: A Remix Manifesto, arguing copyright has privatized culture, asking if communitarian arguments resonate with Kinsella. [55:08] Stephan Kinsella agrees culture was once shared, now distorted by “monopoly capitalism” or fascism, blaming IP for exacerbating commodification. He ranks patents as worst for material damage (slowing technical progress, costing lives) and copyrights for cultural/spiritual harm (e.g., long terms, sequel dominance, remix suppression), citing cases like Napster’s shutdown and the close Betamax decision, lamenting lost cultural and technological potential (e.g., TikTok constraints). Closing Remarks and Resources Topic: Wrap-Up and Contact Information [1:00:56] Cody Cook thanks Kinsella after an hour, promoting his websites (stephankinsella.com, c4sif.org—Center for the Study of Innovative Freedom) and Twitter (@NSKinsella ), promising links in show notes. [1:01:24] Stephan Kinsella clarifies c4sif.org hosts his IP-focused content,