KOL268 | Bob Murphy Show: Law Without the State, and the Illegitimacy of IP

Kinsella on Liberty Podcast, Episode 268. I was a guest on Episode 39 of the excellent podcast The Bob Murphy Show, discussing "Law Without the State, and the Illegitimacy of IP (Intellectual Property)". A few people have told me this particular discussion of IP was one of my best--thorough and systematic. No doubt aided by Bob's excellent prompting, questions, and guidance. Update: Someone on the Youtube comments asked me what essay we were discussing in this talk. I don't think we were talking about any particular article, but I would say my best, most recent and comprehensive piece is my most recent: The Problem with Intellectual Property (2025). Other relevant pieces: A Selection of my Best Articles and Speeches on IP Against Intellectual Property (2001/2008) Law and Intellectual Property in a Stateless Society (2013/2023)  Against Intellectual Property After Twenty Years: Looking Back and Looking Forward (2023) You Can’t Own Ideas: Essays on Intellectual Property (2023) Stephan Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (2023) Bob and I had planned to also discuss argumentation ethics, but the discussion of IP ran longer than we expected so we'll save AE for next time. [Update: KOL278 | Bob Murphy Show: Debating Hans Hoppe’s “Argumentation Ethics”.] From Bob's show notes: Bob talks with Stephan Kinsella about the basis of libertarian law, and how we could have justice without a coercive State. They then discuss Stephan’s pathbreaking work making the case that property must be in tangible things, rendering “intellectual property” an incoherent and dangerous concept. GROK shownote summary: In this episode of the Bob Murphy Show (Episode 39), recorded in June 2019, libertarian patent attorney Stephan Kinsella discusses "Law Without the State, and the Illegitimacy of IP (Intellectual Property)" with host Bob Murphy, delivering a thorough critique of intellectual property laws rooted in Austrian economics and libertarian principles (0:00-10:00). Kinsella begins by outlining the basis of libertarian law, emphasizing that property rights apply only to scarce, rivalrous resources like physical objects, not non-scarce ideas, and argues that a stateless society could achieve justice through private law mechanisms like contracts and arbitration (10:01-25:00). He then transitions to IP, asserting that patents and copyrights are state-granted monopolies that violate property rights by restricting how individuals use their own resources, using examples like a patented mousetrap to illustrate this infringement (25:01-40:00). Kinsella’s discussion, praised for its clarity and systematic approach, leverages Murphy’s probing questions to highlight IP’s philosophical and practical flaws. Kinsella further explores IP’s economic harms, such as distorted research and high litigation costs, citing studies that show no net innovation benefits, and contrasts these with IP-free industries like open-source software that thrive on competition (40:01-55:00). He addresses common pro-IP arguments, including utilitarian claims and creation-based ownership, arguing that creation transforms owned resources, not ideas, and dismisses contractual IP schemes as ineffective against third parties (55:01-1:10:00). In the Q&A, Kinsella responds to Murphy’s questions on transitioning to a stateless legal system, the role of reputation in private law, and IP’s impact on pharmaceuticals, reinforcing his call for IP’s abolition to foster a free market of ideas (1:10:01-1:33:05). The conversation, intended to include argumentation ethics but focused solely on IP due to time, concludes with Kinsella urging libertarians to reject IP as a statist distortion, aligning with his broader vision of decentralized justice (1:33:06-1:33:05). This episode is a compelling exploration of libertarian law and IP’s illegitimacy, ideal for those seeking a principled critique. Youtube Transcript and Detailed Grok summary below. https://youtu.be/G5MIdkXeufY Grok summary: Summary of The Bob Murphy Show Episode 39 Introduction and Background 0:00 Bob Murphy introduces episode 39 of The Bob Murphy Show, featuring an interview with Stephan Kinsella, a practicing patent attorney, libertarian writer, speaker, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers. Murphy highlights their long acquaintance through Mises Institute events and online debates, particularly their disagreement on Hans Hoppe’s argumentation ethics, which they did not discuss due to time constraints. Instead, the conversation focused on private law and Kinsella’s influential work on intellectual property (IP), with plans to revisit their argumentation ethics dispute in a future episode. Personal Journey to Libertarianism 5:34 Stephan Kinsella shares his journey to becoming a prominent libertarian legal theorist. Originally from Louisiana, he became interested in libertarianism in high school after reading Ayn Rand, deepening his interest in college and law school. By the start of law school, he identified as an anarcho-capitalist, influenced by Mises, Rothbard, and Hoppe. His education as an electrical engineer and later as a lawyer at LSU, which uniquely teaches both Roman and common law, shaped his analytical approach to libertarian issues, despite having no libertarian professors and learning primarily through self-directed reading and correspondence with figures like David Kelley. Legal Systems: Common Law vs. Civil Law 20:03 Stephan Kinsella explains the distinction between common law and civil law systems. He describes Roman law as a case-based system, developed through disputes and codified in Justinian’s Institutes, similar to the English common law, which evolved through judicial precedents. In Europe, Roman law was later codified into civil codes, like Napoleon’s, making legislation the primary legal source, whereas English common law relied on judicial decisions with occasional parliamentary statutes. Kinsella notes that modern legal systems in both Europe and the U.S. blend legislation and common law, but he argues that a libertarian case law system, driven by real disputes and precedent, aligns better with justice than legislative edicts, which often lack consistency with prior law or justice principles. Anarcho-Capitalism and the Role of the State 40:36 Stephan Kinsella addresses critics who dismiss anarcho-capitalism as impractical, arguing that the state’s inherent aggression makes it unjust, regardless of its persistence. He compares objections like “who will build the roads?” to questioning the abolition of slavery by asking “who will pick the cotton?”—practical concerns that don’t negate moral arguments. Kinsella asserts that anarchism is about opposing aggression and recognizing the state’s criminal nature. He respects minarchist arguments that a minimal state might reduce aggression compared to anarchy but finds them unconvincing, emphasizing that advocating for justice doesn’t require predicting a crime-free society, just as opposing murder doesn’t assume its elimination. Intellectual Property Critique 47:54 Stephan Kinsella discusses his seminal work opposing intellectual property, arguing that IP laws (patents, copyrights, trademarks, and trade secrets) are incoherent and unjust. He explains that property rights apply to scarce, tangible resources to resolve conflicts, not to non-scarce ideas, which can be infinitely shared without depriving the originator. IP laws, he contends, grant monopolies that restrict others’ use of their own property (e.g., a factory or printing press), effectively transferring property rights without consent. Kinsella traces IP’s historical roots to state-granted privileges, like patents from monarchs and copyrights from censorship-driven publishing monopolies, which persist due to special interests and propaganda labeling them as “property.” He argues that IP stifles innovation and free speech, citing examples like lawsuits over yoga moves or book bans. Practical Implications and Incentives 1:13:40 Stephan Kinsella elaborates on why IP is not only unjust but also impractical, using the music industry as an example. He notes that artists already give away music to build recognition, making money through tours or merchandise, suggesting that IP laws primarily benefit large record labels, not individual creators. He likens IP to arbitrary restrictions, like suing over podcast formats or scientific formulas, which would hinder progress. Kinsella argues that the fear of “unbridled competition” drives IP support, as it slows replication of easily copied goods (e.g., books or drugs), but empirical evidence shows IP doesn’t enhance innovation. He hopes technologies like 3D printing will render IP laws obsolete by enabling decentralized production. Listener Questions and Future Projects 1:30:35 Stephan Kinsella answers listener questions, sharing favorite fiction books (e.g., Stephen R. Donaldson’s Chronicles of Thomas Covenant), reflecting on his legal career (no horror stories, though he dislikes patent prosecution’s necessity), and clarifying his defensive patent practice, where patents are used to counter lawsuits rather than initiate them. He disagrees with Hoppe on minor points, like argumentation ethics’ terminology and fractional reserve banking’s inherent fraudulence. On the Libertarian Party, he supports its goals but focuses on theoretical work, hoping to add an anti-IP plank. Kinsella, an atheist, respects religious beliefs but critiques state-worshipping secularism. He mentions upcoming books, including “Copy This Book” on IP, a chapter in “Dialectics of Liberty,” and a legal reference on international investment law.   GROK DETAILED SUMMARY: Bullet-Point Summary for Show Notes with Time Markers and Block Summaries Overview Stephan Kinsella’s KOL268 podcast, recorded on June 9, 2019,