02/11/10 – Stephan Kinsella – The Scott Horton Show

I'm Scott Horton, we're streaming live worldwide on the internet at chaosradioaustin.org and at antiwar.com slash radio.
And you know, I really should have played Caught, Can I Get a Witness, because that's a Public Enemy song all about intellectual property.
But it's off the second album and we're sticking the first album today on the show, so it is what it is.
All right, now our next guest is Stephan Kinsella.
This is the intellectual property reference thing coming up here.
He's a adjunct scholar, one of these kind of scholars over there at the Ludwig von Mises Institute and an intellectual property rights lawyer.
His website is StephanKinsella.com and he's the author of the book Against Intellectual Property.
Welcome to the show, Stephan.
How are you doing?
I'm doing fine.
Thanks very much, Scott.
Well, I'm really happy to have you here.
A couple of things, I want to ask you about intellectual property and stuff like that a little bit here in a minute.
But first of all, I want to talk to you about the Bill of Rights.
I've got a conflict.
I am, like I believe you are, an anarchist and I have no use for the state whatsoever and most days I don't even want them to prosecute Dick Cheney, really.
I just want them to stop existing, you know, like Bob Higgs says.
But the thing is, it's like when I argue about the Iraq war, I got to point out how this is not liberating these people very well.
Or if I'm arguing about Iran, I got to argue, look, there's really no evidence that they're making nuclear weapons.
And kind of accepting, just for the sake of argument, kind of the idea that you would have to do something if they were, so to speak.
And of course, another part of this is constitutional law.
I have to hold the government that exists now to the standard of the Constitution, which presumably is their charter.
And so I made this comment on the blog the other day about how, you know, kidnapping people and disappearing them and torturing them to death and stuff like that violates the Bill of Rights.
And you had a response there on the Facebook that said, yeah, but so what?
Who cares about the Bill of Rights?
And so in one sense, I want to repeal the entire Constitution and that includes the Bill of Rights too.
But then in the other sense, you know, like I'll have Jacob Hornberger on the show tomorrow, hopefully, to talk about just how illegal all this stuff is.
And, you know, so it's hard.
When you're a libertarian anarchist, now you have a whole, you have two separate standards you've got to hold all these guys to.
I mean, if they show up and clock in, they're violating our rights, you know?
So anyway, so let's talk about this Bill of Rights and where this thing comes from and what it's supposed to do and why we ought to just go ahead and abandon the damn thing.
Well, I mean, at this point, I don't know if it would be better to abandon it, but the question is, was it necessary in the first place, and has it done more harm than good?
And I mean, if you have a radical perspective and especially an anarchist perspective, then already you can start thinking maybe this Constitution isn't this glorified libertarian document that sometimes some libertarians and conservatives and classical liberals hold it up to be.
I mean, basically the Constitution was a result of a coup.
It was an illegal assembly called to – well, they were supposed to just amend the Articles of Confederation, but instead they drafted a whole new constitution, and it was a big power grab, and that's exactly what resulted.
But during the drafting of it, you had the – a lot of the anti-federalists were very concerned and rightfully so that this new charter was going to empower the federal government and give it lots of power and that it would abuse these powers or expand.
So they were insisting on the Bill of Rights to limit it.
And the federalists sort of disingenuously said, oh no, you don't need to because it's just a document of enumerated powers.
It only gives the federal government certain things.
They don't have the power to infringe free speech.
They don't have the power to limit the press.
They don't have the power to even stop the states from regulating or establishing a state religion.
And in fact, there were some state religions at the time, like congregationalism was actually an official state religion in several states at the time.
So basically the federalists agreed to add a Bill of Rights soon after the ratification of the Constitution.
So the Constitution was ratified in 1787, and two years later – I'm sorry, 1789.
Two years later, 1791, the Bill of Rights was added.
And it was added just as sort of extra protection to make sure the government couldn't do these things.
But according to the original scheme, it was really supposed to be superfluous or just an extra redundant protection because, like I said, the federal government doesn't have a power granted or enumerated to infringe free speech.
So theoretically, if Congress passed the law in 1790, right after the Constitution was ratified but before the Bill of Rights, then theoretically that would have been unconstitutional as well as after the Bill of Rights.
So the Bill of Rights really wasn't supposed to make a difference.
The problem is, after the 14th Amendment was enacted after the Civil War or the war between the states, it basically has this kind of cryptic language that says that the states cannot deny due process, cannot deny citizens equal protection, and it can't infringe the privileges and immunities of the citizens.
And so the due process clause has been interpreted to include the Bill of Rights or parts of the Bill of Rights in what's called selective incorporation.
What that means is the federal government has taken the Bill of Rights as a grant of power to the federal government.
In other words, if the First Amendment says you can't ban free speech, then that means that if you incorporate it into the 14th Amendment, now the federal courts and the federal Congress have the power to review state laws to make sure they're not abridging free speech.
So basically, the Bill of Rights, which was meant to make sure that the federal government only had limited powers and did not have these extra powers, has been used to grant them powers to review the state's laws.
Well, and it's funny, too, because I guess in the very first Washington administration, they had this fight over the doctrine of enumerated or implied powers, and Jefferson resigned over it, right?
And Hamilton said, well, you know, if Congress has the power to regulate the value of money, and I can read that however I want, and it doesn't mean, you know, this much is a yard and this much weighs a pound and this many grains of silver is a dollar.
It means we can create a central bank, we can do whatever we want.
And Jefferson said, no, you can't do that.
And of course, he carried out his presidency in the same manner, you know, disregarding the doctrine of enumerated powers from the very beginning.
Never mind John Adams with the Alien Sedition Acts and all that.
Well, yeah.
I mean, the Louisiana Purchase, I believe, was unauthorized as well.
And if Jefferson hadn't done that, which was, I believe, unconstitutional, then we probably wouldn't have the empire we have now, unless we would have fought a war over that territory eventually.
You know, but the problem with the – and I'm sure you know that Tom DiLorenzo would be the expert to speak with on Hamilton and Jefferson in that era.
He's got a lot of great stuff on that.
There's actually a great article by John Hasnath called The Myth of the Rule of Law, and he sort of persuaded me to a degree that a lot of the Constitution is ambiguous.
And I've kind of come around to the idea that, unfortunately, the Constitution is not only really – it's not even partly libertarian.
I mean, the original concerns that the anti-federalists had, I think they were actually correct.
And I think during the debate, the federalists basically distorted and they downplayed the dangers of this broad language in the Constitution.
But it was there.
And I think you can make a case that some of this language is so broad.
I mean, you have the necessary and proper clause.
You have the interstate commerce clause.
And yes, we can argue that they have stretched these things beyond what they originally meant to do, but I'm not so sure that all of them were not meant to be very broad grants of power.
Right.
So in a sense, we're not really living in a post-constitutional era.
The Constitution really does suck bad enough to allow for this kind of empire out of control, $4.5 trillion a year, biggest government in the history of the solar system we got now.
Well, I mean, if nothing else, it has led to this.
So apparently the Constitution, no matter how great some of the classical liberals and some conservatives think it is, hasn't stopped what's happened now.
And now they keep saying, well, we strayed from the original intent.
But I mean, how far back do you have to go before you find us straying from it?
I mean, from day one, we were straying from it, right?
So yeah, I think the Constitution gave us what we have now, and the Constitution is the problem.
It was a centralizing document, and it inexorably led to this.
Yeah.
Well, you know, the parts I like least are Articles 1, 2, and 3, where it creates the powers of the government to exist there and everything.
But one of the worst parts of Article 1, Section 8, the so-called list of enumerated powers there is the power of Congress to raise and support armies.
Oh, but only for two years at a time, it says there, to protect us from the military, industrial complex and all that.
And it seems like this country has pretty much been at war ever since 1791.
Yeah.
I mean, and not only that, and I'm sure we'll get to this in a little bit, but one of the enumerated powers is the intellectual property stuff, and for example, in debates about whether we should have IP law, patent and copyright law, and this kind of thing, people will routinely just point to the Constitution.
They'll say, well, it's authorized in the Constitution.
In other words, they do this little song and dance where they conflate positive law or what is with what should be.
Now, we're having a normative discussion.
We're talking about what the law should be or whether it's justified, and in response to that, they say, well, it's authorized in the Constitution.
So in other words, they're presupposing that the Constitution has this sort of hallowed superstatus that we all take for granted, or that we all agree is – we agree on the basic principles of that, so that's some kind of moral foundation that justifies what the government does.
It gives it cover for what it does.
And we've been hearing a lot of that in terms of the war, of course.
You have Rand Paul saying, you know, if we're going to fight in Afghanistan, we ought to declare war, and then it'll be all right to, you know, shoot Hellfire missiles at these women and children all day.
And of course, you have the Brits over there doing the Chilcot Committee, reviewing how they got into the Iraq War, and they're getting down to, well, we knew it was wrong without a UN resolution.
Right, right.
That is, consensus with Russia, China, and France, then aggressive mass murder against helpless countries full of helpless civilians are perfectly fine.
It just comes down to the legal technicality.
Well, yeah, it's like – another thing that just caught my mind was the Kello case, which I wrote something that upset a lot of libertarians, and I basically said that the court got it right in the result in terms of the Constitution.
And, you know, my argument was the federal Constitution does not authorize the federal courts to review state law on takings matters, okay?
So, you know, if they were going to follow the Constitution, the court should have declined just to hear it, which would have meant the state law would have stood, and then Sue Kello could have gone to her local – she could have fought locally, which she should have done.
That wasn't saying that the takings law was valid.
It was valid.
The problem I had was almost all of the people that were really upset about this, what were they upset about?
They were upset because it wasn't a regular taking.
It was a taking for private use.
Now, granted, the Constitution and our tradition implies that you can have a federal taking or a state taking or a condemnation or eminent domain if it's for a public purpose and if it's compensated and if there's due process.
So in other words, if it's for a private purpose, it's not for a public purpose, and that's not permitted.
But this implies that if it had been for a public purpose, that would be all right.
Now, from my point of view, what's the difference if you take her property and you give it to a private developer or to the government?
Well, it does seem like degrees of corruption, right, where you just have, you know, private citizens hiring cops to steal land for them and that kind of thing, whereas, hey, if there's a highway coming through, there's a highway coming through.
It has a different spin on it, right?
It does have a different spin, but the point is she's still victimized to the exact same extent.
In both cases, she's paid.
In both cases, her property is taken without her consent.
And from the libertarian point of view, that's really all that matters.
And so these people, they were upset because the state strayed from normal eminent domain standards.
I mean if you're going to be a pure libertarian, which I am, then the government shouldn't do it at all.
And it really doesn't matter.
It's sort of like hate crime legislation, right?
I mean libertarians usually oppose hate crime legislation because it's sort of adding an extra penalty to the crime based upon your, you know, whether your motives were politically correct or not.
I mean, basically you should penalize crime and action, right?
Not whether your motivations are racist or something like that.
And so to my mind, it's the same thing.
You shouldn't say it's worse to take for private property than public property.
They're both equally bad.
Although, you know, race aside, motive does come into play in trials and say a murder trial if somebody stabs somebody for his money or he stabs somebody and then, you know, eats him like Jeffrey Dahmer or, you know what I mean?
I agree.
The degree of premeditation.
Yes.
And, I mean, I've written a little bit on this and I think the way to sort that out is to consider that there's two aspects to action that's considered crime.
There's intentionality and then there's your purpose or your motive.
And if you think about it in terms of Mises' way of analyzing human action, human action is when you act by using a means to achieve an end.
Now, the end is the goal, okay?
That's just what you want to accomplish.
But the action itself is the employing of the means, and action is intentional.
So a crime is something that's intentional, something you do on purpose.
It doesn't really matter what your end is.
In other words, if I kill this guy, then it's murder because I intend to kill him.
Now, my motivation might be because I don't like his race or it might be because I want his wallet or it might be because I want to film a video of it and sell it for money on the internet, you know?
So the end of the action is not the same as the intent.
Now, the intent should be taken into account in characterizing the action and distinguishing it from accident or negligence or something like that.
But the end would go more towards sort of the hate crime thing that they're classifying.
And maybe that could be taken into account in the damages phase or something like that.
Well, you know, so here we are in 2010 in a situation where, as you say, they took what was supposed to be a list of declaratory and restrictive clauses preventing the misconstruction or abuse of its powers by the new government there, this Bill of Restrictions, really, the Bill of Rights we call it, and they took it as a grant of power.
I think you would probably agree accomplish some good with that, even if it's a double-edged sword kind of thing.
I mean, it used to be a local sheriff's department could just torture anybody they want into admitting anything they want and federal review of stuff like that, you know?
The Miranda case, for example, things like this really, you know, have had a positive effect on the liberty of individual Americans in a great sense.
But now we have a situation, well, and you can argue that point in a second, but let me say one more thing.
Now we also have a situation where the commander in chief can do whatever he wants, and that includes, at least according to the Office of Legal Counsel in the last government, that means declaring, finding, I guess, in a determination that the military can violate the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and the rest of the amendments all they want, because the Bill of Rights does not trump the commander-in-chief clause.
Right.
Well, I mean, I think that in a way, the way the courts have handled the latter issues you talked about is that, you know, they call it a political question.
What that means is, you know, the Constitution envisions this sort of tripartite system of checks and balances and separation of powers, but there's really no over-government over them to make sure that they all stick within their role, so it's sort of a political process there, right?
And if certain questions are presented to the court, they're just gonna say, look, we can't answer this question.
It's just up to the political process.
So if the president refuses to abide by the Bill of Rights, there's not much they can do unless it's blatant enough for them to do something about it.
But I think the Bill of Rights – I mean, imagine if we hadn't had the Bill of Rights.
Then when you had the 14th Amendment, which talks about privileges and immunities and due process, you wouldn't have been able to argue that that incorporates the Bill of Rights.
So you wouldn't have been able to give this extra power to the federal courts, right?
It never would have arisen.
I also do agree with you.
There has been some good by some of these standards being imposed on the states and even on the federal government itself, although the federal government rarely strikes down federal laws based upon the Constitution – based upon the Bill of Rights, sorry.
It's usually state laws are striking down, right?
But if we had had the original constitutional system where the states had the right to secede and this was known, then I think it would be okay if there would be federal standards.
It would be like a condition of membership into a club, right?
It would be like, you know, Massachusetts, if you're going to restrict free speech, you have to leave the union.
You can't be a member.
Or basically, we're going to outlaw it, and then if Massachusetts didn't like it, then they could leave the union.
But when you remove the right to exit or the right to secede, which the Civil War effectively did, then these downward controls just become more centralization and more downward power from the federal government.
All right.
Now, I'm really sorry that we only got a couple of minutes to cover it, so we'll have to get your couple of minute version of this.
But I, up until very recently, was bad on this issue, but like always, my good buddy Anthony Gregory helped set me straight and keep me on the libertarian side of everything, and that is intellectual property.
Anthony says if he writes a book and then somebody else just, some other company just republishes it and never gives him a nickel for it, well, that's kind of a jerky thing to do, but it's not a violation of his rights because he cannot own ideas.
And so he says that other than empire, this is the single most important issue in our society because of the amount of the seen and unseen going on here, the destruction of wealth that we don't even know could exist, but for this intellectual property regime that, as you said, is mandated in the Constitution.
I think he may be right, and I think it's becoming more of a hindrance to human life because of the internet and because of the explosion of technology.
It used to be sort of hidden, but it's becoming more and more of a problem.
There's two ways of looking at this.
Number one – well, first of all, I would say that in a free society with no IP law, it's hard to predict what institutions would arise that would prevent your work from being ripped off at least right away.
I mean maybe there would be contracts or regimes or customs.
It's hard to predict because the state has prevented those from arising by its IP law.
But the traditional justification for IP law has been either utilitarian or sort of deontological or natural rights.
The utilitarian argument is that if the government comes in and grants these monopolies, they stimulate innovation.
They make it more possible for people to write books and paint paintings and invent things.
The problem with that argument is that there are ethical problems with it and methodological problems with just the idea of comparing utility like that.
But even if you sweep those aside, they just don't have any proof that this is correct.
They don't have any proof that the benefit we get from IP law is greater than the cost of the system, and there's definitely a cost of the system to society – patent lawyer salaries and threat of lawsuits and these kinds of things.
In fact, all the studies that I'm aware of almost universally conclude the other way around, that it looks like it actually depresses innovation.
It's a drag on society.
We'd be better off without it, blah, blah, blah.
The rights argument is more – the one a lot of utilitarians, especially Randians, agree with is that, look, you have the right to own things that you create.
That's the basis of our Lockean sort of property rights ideas, and you create these mouthtraps, inventions, recipes, designs, things like this.
So why don't you own them?
And the mistake in that chain of reasoning is the assumption that you own things that you create, and you don't.
We own scarce resources that we are the first ones to appropriate out of the unowned state of nature.
So you don't create land that you homestead.
You don't – and if you make a – let's take an example.
Let's say you own a hunk of marble, and you carve a statue out of it.
Well, you created a statue I guess, or you could say you rearranged the marble that you already owned.
You own the resulting statue not because you created it, but because you already own the marble out of which it's made.
On the other hand, if you don't own the marble, if it's your neighbor's marble or you stole it or you're doing it for an employer, then you don't own it even though you did create the statue.
So creation is not a source of right.
It's neither necessary nor sufficient for right.
And another way to consider this is if you think about human action, this Misesian concept of human action.
When we act in the world, we have to use means to accomplish things.
This includes tools, our bodies, laws of – things like this.
So we have to use these things to get things done.
When we make a decision about what to do, about what means to choose, and about what ends to try to meet, that's informed by knowledge.
But we don't have to own that knowledge to get it done.
You have to own the means because if someone else is using it, you can't use it.
It's a scarce resource.
This is the reason why means are the subject of property.
Scarce resources are the subject of property.
But knowledge, it's just what informs your action.
And knowledge does not have to be owned to be used.
I can have a – So what you're saying is in order for you to steal something from me, I would have to not have it anymore because you took it.
Exactly, and that's what we mean by scarce resources.
Okay, so if I send you a copy of a music file in an email, I still have mine, and it's all good.
Yeah, so let's say I want to make some bread.
To make the bread, I have to have wheat, and I have to have ingredients, and I have to have a bowl and a spoon, and I have to know how to do it.
Now, if someone takes my bowl from me or my wheat, I can't make the bread.
That's a scarce resource.
But if they don't take the knowledge, if they learn how to make bread as well, and they're off on their own making their bread, I can still make the bread.
We both have that knowledge.
So the knowledge doesn't need to be owned for me to use it to have successful action.
So the idea is that knowledge or information is not the subject of property, and that's what IP basically is.
All right, Stefan, you know what?
We're going to have to have you back on the show sometime soon to give this subject the full half-hour treatment because this is very interesting stuff.
I want you to know I made it really hard on Anthony, but he convinced me eventually.
All right, thanks for your time.
We're all out of time, but this has been great.
Thanks a lot.
Appreciate it.
Bye-bye.
This is from the Mises Institute adjunct scholar there.
His own website is stephankinsella.com.