Kinsella on Liberty Podcast, Episode 475.

This is my guest lecture for Saifedean Ammous's course Principles of Austrian Economics II | ECON104 (recorded May 7, 2020, I believe), also now on Saylor Academy. Transcript and summary and other notes below.

KOL441 | The Bitcoin Standard Podcast with Saifedean Ammous: Legal Foundations of a Free Society, Property Rights, Intellectual Property

KOL314 | Patents vs. Bitcoin: The Bitcoin Standard Podcast (Saifedean Ammous)

https://youtu.be/02wY_qL0qRU?si=HU40GGg8xu6Wfn3U

GROK SUMMARY

Summary of Economics 12 Seminar: Intellectual Property Discussion with Stephan Kinsella

Introduction to Intellectual Property and Scarcity

Timestamp: 0:01

In the ninth discussion seminar of Economics 12, Principles of Economics 2, host Saifedean Ammous introduces guest discussant Stephan Kinsella, who has written extensively on intellectual property (IP) and its justifications. The lecture focuses on Kinsella’s paper, which explores the legitimacy of property rights and why IP lacks a coherent basis. Ammous highlights the core issue of scarcity: property rights manage scarce resources, but ideas, being non-scarce, cannot be owned without controlling others’ bodies or property, violating individual rights. This is described as a “kill shot” to IP arguments, though other critiques are also explored.

Utilitarian and Natural Rights Arguments Against IP

Timestamp: 3:07

Stephan Kinsella elaborates on the incoherence of IP, arguing that information is a characteristic of owned resources, not property itself. Claiming ownership over ideas, like owning the “redness” of a ball, would absurdly grant control over others’ property. He traces IP’s origins to Locke’s labor theory of property, which confuses action with ownership, leading to flawed justifications by Ayn Rand and others. Kinsella critiques the utilitarian argument that IP stimulates innovation, noting the U.S. Constitution’s temporary monopoly grants were based on unproven assumptions. He argues that 200 years of data fail to show IP’s net benefit, with studies suggesting it distorts or depresses innovation.

Empirical Weaknesses and Market Failures

Timestamp: 7:44

Kinsella challenges the empirical case for IP, pointing out that proponents assume a market failure in innovation without government intervention. However, studies are inconclusive or show patents hinder innovation, costing billions annually in the U.S. alone. He criticizes reports like the Commerce Department’s, which claim IP-intensive industries drive GDP, for mistaking correlation with causation. Ammous adds that academic theoretical models often support IP without empirical backing, relying on simulated universes to justify claims of increased innovation, further highlighting the lack of real-world evidence.

Alternative Business Models Without IP

Timestamp: 19:13

Ammous argues that the assumption IP is essential for creators’ income reflects limited imagination. Musicians, for instance, earn most of their income from concerts and sponsorships, not record sales, as seen with artists from local bands to superstars like Madonna. Platforms like SoundCloud and YouTube allow free music distribution, boosting popularity and concert attendance, as evidenced by Iron Maiden’s use of BitTorrent data for tour planning. Authors can profit from physical books, courses, or speaking engagements. Without IP, lower legal costs would reduce prices, benefiting consumers and producers, with first-mover advantages and reputation sufficing for profitability.

Trade Secrets and Regulatory Impacts

Timestamp: 27:44

Kinsella discusses trade secrets as an alternative to patents, noting that patent law encourages disclosure over secrecy, undermining natural market advantages. The FDA’s regulatory system exacerbates this by requiring public disclosure during drug approval, negating trade secret benefits and justifying patents. He argues that removing both systems would allow trade secrets and first-mover advantages to thrive, criticizing the cycle where one regulation (FDA) necessitates another (patents). Ammous suggests that trade secrets could reduce offshoring, potentially benefiting local industries.

Market Solutions and Moral Considerations

Timestamp: 32:58

Kinsella proposes that in a free market, creators like J.K. Rowling could profit without IP through fan support, crowdfunding, or authorized endorsements, as fans value authenticity. He refutes claims that IP prevents fraud or plagiarism, noting market mechanisms like Amazon’s removal of knockoff books naturally police such issues. Ammous emphasizes that fans are unlikely to harm creators they admire, and pirated copies by non-paying audiences only expand reach. Kinsella illustrates with examples like fake Crest toothpaste or McDonald’s, showing market incentives deter fraud without IP laws.

Visual Critique of Patent Policy

Timestamp: 42:28

Kinsella shares a chart critiquing libertarian Alex Tabarrok’s “patent policy on the back of a napkin,” which assumes an optimal patent strength without data. He argues that innovation decreases with more patent protection, contrary to Tabarrok’s unproven Gaussian curve, reflecting a broader failure of empiricists to address IP’s root issues.

Student Questions: Photography and Copyright

Timestamp: 45:25

A student, Tim, a former photographer, raises concerns about copyright’s role in photography, citing moral issues when images are used without permission, potentially stifling creativity. Ammous suggests market demand may not support all photographers, and alternative income sources like event photography could replace royalty-based models. Kinsella argues that copyright on photographs is absurd, citing cases like a monkey taking photos, and notes that digital technology makes copying unstoppable. He suggests private contracts or watermarks as solutions, emphasizing that information, once public, cannot be controlled like property.

Case Studies: Samsung, Apple, and Tesla

Timestamp: 1:03:03

Student Daniel discusses the Samsung-Apple patent battles, which enriched lawyers, and Tesla’s 2014 decision to open its patents, which didn’t spur expected innovation in electric cars. Kinsella notes that patent disputes create cartels, locking out small innovators, and Tesla’s move was largely PR, as they likely still acquire patents for defense. He argues patent thickets hinder innovation, acting as a tax on building upon prior technologies.

Open-Source Models and Ethereum

Timestamp: 1:12:28

Ammous praises open-source models like Linux, which avoid patent taxes and dominate critical infrastructure. Student Andrew highlights Ethereum’s open-source innovation, but Ammous critiques it as a Ponzi scheme, producing unprofitable “Rube Goldberg machines.” Kinsella humorously notes Ammous’s tendency to bring up crypto, contrasting it with his own focus on IP.

Protecting Trade Secrets and NDAs

Timestamp: 1:24:24

Ammous and Kinsella discuss trade secrets as a viable alternative, using NDAs to protect proprietary processes without patents. Kinsella explains that NDAs create contractual disincentives for leaks, but patents discourage secrecy by risking others patenting the same invention. They address concerns about employees leaking secrets, suggesting contracts and incentives like bonuses can suffice without resorting to violence. Ammous argues that Austrian economics shows coercive solutions backfire.

Guilds and Market Dynamics

Timestamp: 1:41:43

Ammous proposes that in a free market, industries like car manufacturing could form guilds to mutually respect innovations, shunning violators. However, he remains skeptical, believing information wants to be free and markets will find profitable models without IP. Bitcoin’s open-source success, dominating despite copycats, illustrates this, as its competitors lose relevance over time.

Conclusion

Timestamp: 1:46:11

The seminar concludes with Kinsella and Ammous emphasizing that IP’s flaws—philosophical, ethical, and empirical—outweigh its benefits. [Actually, I don't concede there are any benefits. —SK] They advocate for market-driven solutions [there is no problem to have a "solution" to], encouraging students to contact Kinsella for further questions and to follow him on Twitter. The discussion underscores the power of free markets to innovate without IP’s coercive framework.

***

Audience Pre-Lecture Discussion and Questions

Kinsella:

For our joint lecture today, I think these are some of the resources you might want to share with the class, for the utilitarianism/empiricism issue (all articles or posts by me unless noted otherwise)

There’s No Such Thing as a Free Patent, Mises Daily (Mar. 7, 2005)

“The Overwhelming Empirical Case Against Patent and Copyright” (Oct. 23, 2012)

Against Intellectual Property, the section "Utilitarian Defenses of IP"

Boldrin & Levine, The Case Against Patents: https://www.aeaweb.org/articles?id=10.1257/jep.27.1.3

B&L, Against Intellectual Monopoly http://www.dklevine.com/general/intellectual/againstfinal.htm

See also:

The Problem with Intellectual Property

Boldrin and Levine: The Case Against Patents

A Selection of my Best Articles and Speeches on IP

Kinsella, You Can’t Own Ideas: Essays on Intellectual Property (Papinian Press, 2023)

Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023)

Question from Peter:

Please see below my question for tomorrow’s seminar. Unfortunately I won’t be able to join the session live so I’d be grateful if you could ask this on my behalf.

As a lawyer how much of the legal work you encounter do you think would still exist in a libertarian society based solely on private law? Clearly there would no IP lawyers, tax lawyers or lawyers advising on regulatory compliance. If you strip away this “statist” part of the legal profession as it exists in the 21st century,

Kinsella on Liberty Podcast, Episode 474.

“Where The Common Law Goes Wrong,” 2025 Annual Meeting, Property and Freedom Society, Bodrum, Turkey (Sep. 19, 2025). Also at PFP297 | Stephan Kinsella, Where The Common Law Goes Wrong (PFS 2025). Below are my notes, Shownotes provided by Grok, and the transcript. This recording is from my iphone. Professional recording and video will be uploaded later. See also Sebastian Wang, "Stephan Kinsella on the Common Law: Lessons from Bodrum 2025," Libertarian Alliance [UK] Blog (Sep. 19, 2025). Pix.

https://youtu.be/93rGev1O-D4

Grok Shownotes

Show Notes: Stephan Kinsella’s “Where the Common Law Goes Wrong” – Property and Freedom Society 2025 Annual Meeting

Introduction and Context

Stephan Kinsella delivered his talk, “Where the Common Law Goes Wrong,” at the Property and Freedom Society’s 2025 Annual Meeting in Bodrum, Turkey, on September 21, 2025. Introduced by Hans-Hermann Hoppe, who shared a brief anecdote about media bias in translating Donald Trump’s interactions, Kinsella’s presentation revisits themes from his earlier PFS talks in 2012 and 2021, focusing on the interplay between libertarian principles, Roman law, and the common law. Drawing on his recent work, including the Universal Principles of Liberty (co-authored with Alessandro Fusillo, David Dürr, FreeMax, and Patrick Tinsley, under Hoppe’s guidance), Kinsella emphasizes the organic development of law and critiques the modern tendency to equate law with legislation. He humorously recounts preparing for the talk with his trainer, who mistook “common law” for “common law marriage,” highlighting the need to clarify legal concepts for a broader audience.

Defining Law and Its Evolution

Kinsella begins by distinguishing types of law: descriptive (e.g., laws of physics, economics) and normative (e.g., moral codes, legal systems). Legal laws, he argues, blend normative guidance with descriptive consequences, aiming to achieve justice through property rights. He contrasts the modern view of law as statutory decrees—illustrated by tax protesters demanding to “show me the law”—with its historical roots in decentralized systems like Roman law (500 BC–565 AD) and English common law (1066–present). These systems evolved organically through court decisions, with Roman law preserved in Justinian’s Corpus Juris Civilis and later rediscovered in Bologna around 1070, influencing European civil codes. Kinsella notes that post-1789 democratic shifts and bureaucratic growth led to an explosion of legislation, overshadowing these private law traditions.

Roman Law vs. Common Law

The talk explores why Anglo-American scholars, like Hayek and Leoni, often praise the common law’s spontaneous order while overlooking Roman law’s similar decentralized origins. Kinsella cites Hoppe’s observation, from Democracy: The God That Failed, that the common law’s non-codified nature may serve lawyers’ interests by making it less accessible to laypeople, unlike Europe’s clearer civil codes. He refutes the misconception that civil law systems inherently embody totalitarian principles (“all that is not permitted is forbidden”), attributing Europe’s socialism to separate legislation, not civil codes. Both Roman and common law, Kinsella argues, offer valuable insights for libertarians, despite the former’s neglect in free-market scholarship.

Libertarian Law and Rationalism Critique

Kinsella critiques the rationalistic tendency among libertarians to design top-down “libertarian law codes,” as exemplified by Rothbard’s hope for a comprehensive code in The Ethics of Liberty. Such approaches, he argues, ignore context and the limits of deductive reasoning, echoing Hayek’s critique of constructivist rationalism. Law, as a practical response to scarcity and conflict, developed through real-world judicial decisions over centuries. Kinsella suggests that libertarian law should evolve organically, using Roman and common law as starting points, guided by principles like non-aggression but subject to scrutiny for compatibility with liberty. He references G.K. Chesterton’s “fence paradox” to caution against discarding established legal traditions without understanding their purpose.

Where Common Law Goes Wrong and Right

Kinsella identifies aspects of common law incompatible with libertarian principles, including the doctrine of consideration in contracts (unnecessary, as Roman law shows), blackmail, trademark, defamation, trade secret laws, common law copyright, coverture (denying married women’s property rights), and primogeniture. Conversely, he praises common law solutions like mens rea, joint and several liability, and the felony murder rule, which holds felons liable for deaths during dangerous crimes. He highlights the “but for” causation test’s limitation in cases of multiple actors (e.g., two hunters simultaneously shooting a victim) and the common law’s ingenious solution of treating independent actors as jointly liable, ensuring accountability.

Vision for Libertarian Legal Development

Kinsella envisions a future libertarian society where judges apply core principles, such as those outlined in his Universal Principles of Liberty, while drawing on Roman and common law traditions. These traditions would serve as presumptively valid starting points, subject to rejection if they conflict with libertarian justice. He argues that a fixed libertarian law code is neither feasible nor desirable, given law’s contextual and evolutionary nature. Instead, advocates would argue cases based on libertarian principles and private law precedents, gradually building a distinct libertarian jurisprudence. Kinsella’s talk, rooted in his Legal Foundations of a Free Society and decades of scholarship, underscores the importance of learning from historical legal systems while refining them through libertarian reasoning.

Kinsella's Notes

Where The Common Law Goes Wrong

Background

KOL001 | “The (State’s) Corruption of (Private) Law” (PFS 2012)

KOL359 | State Constitutions vs. the Libertarian Private Law Code (PFS 2021)

Examples of Libertarian Law vs. Louisiana vs. French vs. Common Law: Consideration and Formalities

Legislative Positivism and Rationalism in the Louisiana and French Civil Codes

KOL129 | Guest Lecture to Montessori Students: “The Story of Law: What Is Law, and Where Does it Come From?”

 

Today I’m going to talk about law

In particular, about libertarian law, and about decentralized law like the common law and Roman law

Returning to a topic I have touched on here before

KOL001 | “The (State’s) Corruption of (Private) Law” (PFS 2012)

KOL359 | State Constitutions vs. the Libertarian Private Law Code (PFS 2021)

But hopefully with some more wisdom about this topic

Stephanie discussion

Telling her what my talk would be about

She said we are not all lawyers

I said well I don’t think most lawyers know about Roman law, or even much about the common law other than how to use it in their daily practice

I should have known this already

In short, I realized that, contrary to a recent meme, not everyone thinks of Rome once a day

Much less knows about Roman Law, or even much about common law

So I decided to try to start from some basics

And to speak slowly, as Renata Jacobs keeps asking me to do

What is Law?

That said, let me start from some basics.

The word “law” has a broad meaning in different contexts.

Law refers some regularity in events;

to order, regularity, or rule, depending on the context

Various types: descriptive, and normative/prescriptive

Descriptive: causal laws; economic laws; laws of logic

Normative: moral laws, narrow codes of ethics (doctors, lawyers)

Legal laws: are a blend of normative and descriptive.

Normative: Just as humans aspire to do good or right—things they “should” do—they are interested in what interpersonal actions involving force are justified, and what enforceable rules are just—what are normally called “laws”. The purpose of law is to do justice, which is normative, and a just law is one that corresponds to the rights we have—the property rights we have.

But there is a difference between the laws actually in force in society and those that should be in force—those that are justified.

e. we can identify laws that “exist”, i.e. that are in force, which is descriptive/factual. The question of which laws are just or justified is a normative or moral question.

Understanding this distinction helps clear up the tired old debate between the natural law proponents (Lon Fuller) and the legal positivist (H.L.A. Hart, The Concept of Law).

Most people now are used to thinking of law as statutes or legislation: commands issued by a legislature, or the US Constitution itself, another written document drafted and approve by vote of a committee; a decree.

Until about 100 years ago law was not commonly thought of as synonymous with legislation; now it is.

g. income tax protesters saying “show me the law!”

Positive Law in the World Today

Law was not always thought of as legislation

It actually emerged organically over centuries in relatively decentralized processes

Primarily, the Roman Law (from about 500BC to about 565 AD (the end of Justinian’s reign) and the Common Law, from about 1066 (Norman Conquest) to present.

Each approximately 1000 years

The Roman Law was codified and preserved under Justinian in his Corpus Juris Civilis or Justinian Code (529–534 CE)

In the meantime law in Europe was based on

Germanic customary laws (Salic, Lombard, Visigothic, etc.)

Canon law (Church law)

And local feudal customs and town statutes

Rediscovery in northern Italy and “Reception” into continental practice

Around 1070, a complete copy of Justinian’s Digest was found in Bologna

Kinsella on Liberty Podcast: Episode 473.

https://youtu.be/soyywXASOh4?si=pHKdf6awiCXOqXGV

From The White Pillbox, Stephan Kinsella's Universal Principles of Liberty. This is my discussion with Mark Maresca, of The White Pillbox, about The Universal Principles of Liberty. (Previous episode: Kinsella as “White Pill”: Maresca, “From the White-PillBox: Part 29. Achilles Heel edition 3”.)

Mark's shownotes:

Recently Stephan published an exciting document, the Universal Principles of Liberty: https://stephankinsella.com/principles/

Stephan provides some background that led to the Principles, historical context, use cases, and so much more. As always, Stephan demonstrates why he is a true human White Pill.

He even challenged me to White Pill him, on my reasoning behind why true free societies may be coming sooner than we think.

Some of his key publications:

International Investment, Political Risk, and Dispute Resolution (Oxford, 2020): http://www.kinsellalaw.com/iipr/

Against Intellectual Property (Mises Institute, 2001): http://c4sif.org/aip/

Legal Foundations of a Free Society (Papinian Press, 2023): https://stephankinsella.com/lffs/

Links to other topics we covered in this episode...

The Law, by Frederic Bastiat: https://store.mises.org/The-Law-P408....

For a New Liberty, by Murray N. Rothbard: https://store.mises.org/For-a-New-Lib...

Human Action, by Ludwig von Mises: https://store.mises.org/Human-Action-...

The Remnant, from Isaiah's Job, by Albert J. Nock: https://mises.org/mises-daily/isaiahs...

The Property and Freedom Society: https://propertyandfreedom.org/

Grok shownotes and transcript below.

Grok Shownotes

Overview of the Discussion

The episode of the White Pillbox features host Mark Maresca interviewing Stephan Kinsella, a prominent intellectual property attorney and libertarian writer from Houston. Recorded on September 06, 2025, the conversation delves into Kinsella's latest work, the "Universal Principles of Liberty," a document aimed at articulating a coherent framework for libertarian principles. This discussion provides listeners with an insightful exploration of libertarian thought, emphasizing practical applications and philosophical underpinnings in the context of transitioning to a freer society.

Background on Universal Principles of Liberty

Kinsella explains the genesis of the "Universal Principles of Liberty," highlighting his involvement in various libertarian projects, including attempts to draft constitutions for new nations like Liberland. He critiques the traditional concept of constitutions as state-authorizing documents, advocating instead for a statement of principles that avoids legitimizing governmental authority. The project evolved from his earlier work, such as the "Fundamental Principles of Justice," and was collaboratively refined with contributions from attorneys Pat Tinsley, Aleandro Fusillo, David Durr, and oversight from Hans-Hermann Hoppe, reflecting a broad consensus on core libertarian values.

Core Libertarian Principles

The core of the "Universal Principles of Liberty" rests on four key principles: self-ownership, original appropriation (homesteading), contract, and rectification. Kinsella argues these principles, derived from Roman and English common law, offer a decentralized, organic approach to law that contrasts with statutory legislation. He emphasizes that libertarianism, as a consistent application of these private law principles, rejects state-imposed exceptions like taxation or sovereign immunity, providing a foundation for a free society that can adapt through judicial interpretation rather than legislative fiat.

Practical Applications and Flexibility

Kinsella discusses the document's practical use as a "guard rail" for free territories or communities, such as Liberland or Prospera in Honduras, where it could guide development and judicial decisions without mandating a top-down structure. The principles are designed to be flexible, allowing adoption by diverse groups—whether through explicit signing (as in Fremax’s project) or implicit acceptance as societal norms. This modularity supports both statist and anarchist contexts, serving as a subsidiary guide where local laws permit, ensuring consistency with libertarian ideals.

Addressing Common Concerns

A notable section addresses concerns about mass destruction devices, inspired by Fremax’s input, which Kinsella included despite initial reluctance due to its specificity. He clarifies that such devices are not banned per se but are deemed aggressive due to their likely impact on innocent lives, aligning with libertarian opposition to war and collateral damage. This provision also extends to potential threats like chemical or biological agents, with Kinsella suggesting private incentives, such as insurance, could mitigate risks in an anarchist society.

Rejection of Positive Law and Social Contracts

Kinsella critiques positive law, such as welfare rights or intellectual property, arguing they arise from legislation rather than organic legal processes and thus have no place in a libertarian framework. He also dismantles social contract theory by redefining contracts as title transfers rather than binding obligations, eliminating the basis for voluntary slavery or state legitimacy claims. This perspective underscores the document’s focus on individual consent as a communicated, revocable act.

Future Vision and Optimism

Looking ahead, Kinsella envisions a future where states wither into irrelevance, akin to the British monarchy, as liberty matures with economic and technological progress (e.g., Bitcoin, AI). He remains hopeful that shared human values of peace and prosperity, enhanced by economic literacy, will naturally support libertarian principles. Maresca shares this optimism, predicting a rapid transition within five to ten years, driven by the erosion of the myth of political authority.

Role of Technology

Both Kinsella and Maresca highlight technology’s role in this transition, with the internet decentralizing information and undermining propaganda, a process accelerated by smartphones exposing societal issues. Kinsella’s opposition to copyright stems from its threat to this communicative freedom, while Maresca sees Bitcoin and virtual communities as tools to starve the state, fostering enclaves of liberty that could adopt the principles organically.

Cultural and Historical Context

Kinsella draws on historical examples, like the Soviet collapse teaching the benefits of capitalism, to argue that societal shifts can occur without universal ideological conversion. He also references the pedagogical style of the Louisiana civil code, adapting it to make the principles accessible and illustrative for a pioneering libertarian legal system, given the relative newness of modern libertarianism (60-70 years).

Closing Remarks and Resources

The episode concludes with Maresca encouraging listeners to explore the "Universal Principles of Liberty" and anticipate Kinsella’s forthcoming annotated commentary and Fremax’s related project, expected in October 2025. Kinsella’s work, including his book "Legal Foundations of a Free Society," is linked in the show notes, offering further resources for those interested in deepening their understanding of libertarian theory and practice.

Call to Action

Listeners are urged to stay tuned for updates, check the show notes for Kinsella’s publications, and embrace the "white pill" mindset of hope and action. This episode, aired at 10:51 AM CDT on September 06, 2025, serves as both an educational resource and a motivational call to participate in the ongoing struggle for liberty.

Youtube transcript

(with help from Grok and ChatGPT)

Topic: Introduction and State Skepticism

0:08

Mark Maresca: You're skeptical of the state. You're getting over the myth of authority, but the state is still formidable. Or is it?

0:16

Mark Maresca: You've got a front row seat in the transition to a free society. Let's dive head first into the white pillbox with your host, Mark Maresca. Greetings all. Thank you so much for joining today. Today I'm very excited to welcome as my guest Stephan Kinsella.

Topic: Guest Welcome and Background

0:35

Mark Maresca: Stephan, thanks for joining me on the White Pillbox.

Stephan Kinsella: Glad to be here. Now folks, please check out Stephan's bio in the show notes. But for those of you unfamiliar briefly, Stephan is an intellectual property attorney and prolific libertarian writer from Houston. Some of his publications include international investment, political risk and dispute resolution, against intellectual property, Legal Foundations of a Free Society, and finally the topic of today's interview, the universal principles of liberty, just published. And of course, I'll link to that and all his other major works.

0:59

Mark Maresca: Okay. The universal principles of liberty. It is what it says. It puts me in the mind of sometimes when I've spoken to newbies and kind of introduce what I can about libertarian principles. Sometimes I'll get a question like give me an elevator pitch. Give me sort of a very broad overview and sometimes it's hard to refer them to a website or reference that kind of does it very compactly. This does it at least for certain types of mindsets. So can you give me a brief explanation of what this is and the background of the project?

Topic: Background of Universal Principles of Liberty

1:46

Stephan Kinsella:Yeah. So over the years I have been aware of and sometimes involved in various projects,

Kinsella on Liberty Podcast: Episode 470.

From my appearance on the Ayn Rand Fan Club with Scott Schiff and William. Their Shownotes:

Patent attorney, Libertarian & Ayn Rand fan Stephan Kinsella joins William & Scott to talk about his history in the liberty world and his unique view that property rights should only pertain to physical things, and not to intellectual property. They also talk about Elon Musk opening his patents and the effects of IP law on AI.

https://youtu.be/ax-QhyTGxw0?si=MyuQF4TfdeJQpQND

Related:

Classical Liberals, Libertarians, Anarchists and Others on Intellectual Property

“The Death Throes of Pro-IP Libertarianism” (Mises Daily 2010)

Yet another Randian recants on IP

An Objectivist Recants on IP

Pro-IP “Anarchists” and anti-IP Patent Attorneys

Patent Lawyers Who Oppose Patent Law

“The Four Historical Phases of IP Abolitionism”

“The Origins of Libertarian IP Abolitionism”

The Problem with Intellectual Property

A Selection of my Best Articles and Speeches on IP

Grok shownotes:

Episode Overview

In this episode of the Ayn Rand Fan Club, hosts Scott Schiff and William Swig engage in a thought-provoking discussion with Stephan Kinsella, a retired patent attorney, author, and libertarian thinker with a deep background in Ayn Rand’s Objectivism. The conversation delves into Kinsella’s journey from Objectivism to anarcho-capitalism, his critical stance on intellectual property (IP), and his broader views on libertarian principles. Recorded on August 18, 2025, the episode explores the philosophical and practical implications of IP laws, their impact on innovation, and their compatibility with property rights, while also touching on contemporary libertarian movements.

Stephan Kinsella’s Background and Philosophical Evolution

Kinsella shares his personal journey, starting with his introduction to Ayn Rand’s The Fountainhead in high school, which sparked his interest in Objectivism. Initially a “hardcore Objectivist” for eight years, he later gravitated toward Austrian economics and anarcho-capitalism, influenced by thinkers like Ludwig von Mises and Murray Rothbard. As a patent attorney in Houston, Texas, Kinsella began questioning the validity of IP laws in the early 1990s, finding existing justifications—whether utilitarian or Objectivist—unsatisfactory. His career as a patent lawyer, paradoxically, coincided with his growing opposition to the patent and copyright system, which he argues violates fundamental property rights.

Critique of Intellectual Property

Kinsella’s primary critique of IP centers on its violation of tangible property rights. He argues that patents and copyrights impose non-consensual restrictions, or “negative servitudes,” on how individuals can use their own property, such as a printing press or factory. Drawing from libertarian principles, he contends that property rights should stem from homesteading or contract, not state-granted monopolies. Kinsella rejects both utilitarian arguments (e.g., IP promotes innovation) and natural rights arguments (e.g., creators inherently own their ideas), asserting that there’s no empirical evidence for underproduction of creative works without IP and that the concept of owning labor or ideas is flawed, rooted in a misinterpretation of John Locke’s labor theory.

Trademark, Defamation, and Reputation Rights

The discussion extends to trademark and defamation laws, which Kinsella also opposes. He explains that trademark law, originally intended to prevent consumer fraud, has evolved into a “reputation right” that protects brands like Rolex or Chanel from dilution, even absent deception. He argues that fraud laws already suffice to address deceptive practices, rendering trademark law unnecessary. Similarly, Kinsella rejects defamation laws, asserting there’s no property right in one’s reputation, as it’s merely others’ opinions. He distinguishes incitement to violence as a separate issue, potentially actionable if it directly causes aggression, but maintains that reputation itself isn’t ownable.

Impact of IP on Technology and Culture

Kinsella highlights the detrimental effects of IP laws on technological and cultural progress, particularly in the digital age. He notes that patents and copyrights slow the diffusion of knowledge, stifling innovation in fields like AI, where restrictive licensing limits training data and outputs. He cites examples like Elon Musk and Twitter (now X) opening their patents to foster competition and market growth, arguing that IP creates unseen costs by suppressing projects like documentaries or software due to licensing hurdles. Kinsella emphasizes that competition, not monopoly protections, drives progress, challenging the notion that IP is necessary for profitability.

Libertarian Principles and the Mises Caucus

The conversation shifts to broader libertarian themes, including Kinsella’s involvement with the Mises Caucus, which took over the Libertarian Party to promote principled libertarian candidates. He discusses his work on clarifying property rights and non-aggression principles for the caucus, as well as his recent Universal Principles of Liberty document, which systematizes libertarian legal theory. Kinsella also addresses the controversy surrounding Javier Milei’s influence on the liberty movement, noting divisions among libertarians, with some seeing Milei as a beacon of hope and others, like Hans-Hermann Hoppe, criticizing his policies.

Rights, Forfeiture, and Contextual Ethics

In the final segment, Kinsella tackles the concept of rights forfeiture in the context of criminal acts, framing it as a semantic issue. He aligns with Ayn Rand’s non-aggression principle, distinguishing between unjustified initiation of force and justified defensive or responsive force. Rights, he argues, are contextual, as William suggests, and their recognition may shift based on actions like murder, though Kinsella prefers to avoid the term “forfeiture,” focusing instead on the justification of force in response to aggression. The episode concludes with reflections on Rand’s ethics, particularly the premoral choice to live, and the gradual cultural shift toward liberty through practical experience and technological advancement.

Youtube transcript (cleaned up by Grok):

Scott (0:00):

Welcome to the Ayn Rand Fan Club. I'm Scott Schiff, along with William Swig. William, how are you today?

William (0:07):

I'm doing well. How are you?

Scott:

Good. Good. Well, I'm very pleased we have a well-known libertarian, retired patent attorney, author, and longtime Ayn Rand fan, Stephan Kinsella. Stephan, thank you for joining us today.

Stephan (0:20):

Glad to be here. Very glad.

Scott:

And before we get into all the IP stuff that I know is going to come up, can you just give us a little bit about your background story, even how you got into Ayn Rand and libertarianism?

Stephan (0:36):

Yeah, sure. I am a mostly retired patent attorney here in Houston, Texas. I'm from Louisiana, and I'm 59 years old. So, I was raised in the '70s and '80s in Louisiana, and I was always philosophical. I was into technology and all that, and science fiction. But in high school, I was at a Catholic high school in Baton Rouge, and a librarian who knew I liked literature, reading, and philosophy recommended that I read The Fountainhead. That was in 10th grade. So, I read The Fountainhead and got hooked, got really interested in Objectivism and philosophy. I would say I was a hardcore Objectivist for about eight years. I still consider myself to be an Objectivist if you go by the four main tenets. They probably wouldn’t have me, but I do subscribe to her four main tenets in general terms: egoism, reality, capitalism, individualism, that kind of stuff. I agree with all of it. Still do. Self-interest. But that led me to Mises, Rothbard, the Austrians, and the anarchists, and so I became way more interested in Austrian economics and anarchist theory around law school and college time. When I started practicing law in 1992, I started in oil and gas law at first in Houston, but then I switched to patent law soon after that for career reasons. And when I did that around '93 or '94, I started thinking and writing on libertarian topics like rights and stuff like that. So, I thought maybe I’ll turn my attention to the intellectual property issue because everyone else’s treatment of it was dissatisfying to me—like Galambos, Spooner, Rand, and the utilitarians. There was something wrong with all of their approaches. So, I thought, because I’m a patent attorney and a budding libertarian writer, I can figure it out. I was trying to justify intellectual property for a couple of years, reading everything I could, and finally, I realized why I kept failing: I was trying to justify the unjustifiable, to use, to mangle a Walter Block type of title. The reason I was failing and dissatisfied with all the arguments was that it was unjustified. So, I came to that conclusion right around the time I started practicing patent law. So, for my whole career, I was increasingly opposed to the patent and copyright system while I was doing it for a living.

Scott (3:28):

Did that affect that? Did judges know your view? Did you practice?

Stephan:

Well, at first, I tried to downplay my opinions. I would write as a hobby in libertarian journals and editorials and things like that. For my job, my career, I would write legal articles and things like that, and they were sort of separate. But I was a little bit worried that the word would get out that I was an anti-IP patent attorney, and it would hurt me with my partners and my clients. But of course, no one reads anything, and no one cares about it. It’d be like worrying that they would be worried about my religion or my sexual preference or something. No one cares, and they don’t read anything. And not only that,

Kinsella on Liberty Podcast: Episode 469.

Related:

Tabarrok and Murphy: Why Are US Drug Prices So High?

Pharmaceutical Shills and Think Tank Corruption: Sally Pipes’s The World’s Medicine Chest: How America Achieved Pharmaceutical Supremacy―and How to Keep It

This is my appearance on Adam Haman’s podcast and Youtube channel, Haman Nature (Haman Nature substack), episode HN 149, “Free The DRUGS! Stephan KINSELLA Counters Economist Alex TABARROK On Price Controls | Hn 149” (recorded June 25,  2025).

Tabarrok seems to be generally pro-free market and an Austrian or fellow traveler. However, although he sometimes criticizes existing IP law, he is not opposed to intellectual property (IP), unlike all the cool Austro-libertarians. (( The Death Throes of Pro-IP Libertarianism. )) And he often proposes changes to IP law—sometimes outrageously goofy ones, such as his truly insane idea of replacing the patent system with $3.5 trillion worth of taxpayer subsidies (if you take his logic for a taxpayer funded "medical innovation price fund" to its limit apply it to all forms of patented innovation and other forms of IP like copyright) (( $30 Billion Taxfunded Innovation Contracts: The “Progressive-Libertarian” Solution; Libertarian Favors $80 Billion Annual Tax-Funded “Medical Innovation Prize Fund; What's Worse: $80 Billion or $30 Million?. )) or based on simplistic assertions or confusions like the idea that we can empirically know that we are on the "wrong side" of the optimal patent term length on his ridiculous "Tabarrok Curve." (( Tabarrok: Patent Policy on the Back of a Napkin; The Overwhelming Empirical Case Against Patent and Copyright; Optimal Patent and Copyright Term Length. ))

So even though he's not against IP and thus not a very good libertarian, and he's not a Misesian since he seems to think utility is cardinal, measurable, and knowable, (( "The Problem with Intellectual Property" (2025), Part III.B.2. )) and he’s not an IP law expert either, he keeps trotting out proposals to “reform” IP, such as, I guess, banning free trade or urging that the US engage in IP imperialism to twist the arms of other countries like Australia (see below) to adopt the stronger US patent protections that Tabarrok seems to want to reform. (( See various posts on US style IP Imperialism. )) Read more at Tabarrok and Murphy: Why Are US Drug Prices So High? ...

Shownotes, links, grok summary, and transcript below.

https://youtu.be/gNRsjF3UXT4?si=2T9-4aE3cMPRoMD1

GROK SUMMARY:

In the Haman Nature episode featuring patent attorney and libertarian legal theorist Stephan Kinsella, hosted by Adam Haman, the discussion centers on the high cost of prescription drugs in the United States and the misconceptions surrounding proposed solutions, including critiques of arguments made by economist Alex Tabarrok. Kinsella challenges the notion that former President Trump’s executive order would effectively lower drug prices, arguing that the issue stems from a complex interplay of government regulations, subsidies, and intellectual property (IP) laws, particularly pharmaceutical patents. He disputes the idea that other countries "free ride" on a supposed U.S. "free market" system, emphasizing that the U.S. pharmaceutical industry is far from a free market due to patent-driven monopolies that inflate prices and restrict competition. Kinsella’s critique, informed by his extensive work on IP (e.g., his discussions in the Kinsella on Liberty Podcast, Episode 469, and articles on c4sif.org), highlights how these monopolies distort market dynamics and prevent natural price equalization through arbitrage across borders.

The conversation also addresses Tabarrok’s arguments, as discussed in his interview with Bob Murphy, particularly the concept of the "Tabarrok Curve," which posits an optimal level of IP protection to maximize innovation. Kinsella rejects this, asserting that pharmaceutical patents are not the definitive case for IP necessity, as they often delay generic drugs, skew research toward profitable rather than essential medicines, and raise costs for consumers. He points to industries like fashion and software, which thrive without heavy patent reliance, to argue that innovation does not require IP protections (referencing his critiques in “Tabarrok, Cowen, and Douglass North on Patents” and “Software Patents Bad, Pharmaceutical Patents Good?” on c4sif.org). Additionally, Kinsella dismisses Tabarrok’s proposal for a tax-funded prize system to replace IP as an unlibertarian solution that substitutes one form of government intervention for another, citing his analysis in “$30 Billion Taxfunded Innovation Contracts: The ‘Progressive-Libertarian’ Solution” and related articles. He argues that such systems assume government competence in picking winners, which markets historically do better.

The discussion concludes with a reflection on whether the Overton Window is shifting on IP issues. Kinsella notes slow progress, particularly in tech and libertarian circles, but acknowledges resistance from entrenched interests like Big Pharma. He emphasizes the need for continued dialogue to challenge the status quo, aligning with his broader advocacy against IP as a barrier to competition and innovation (as detailed in his c4sif.org writings). The episode underscores the complexity of drug pricing and the pitfalls of relying on government-driven solutions, advocating instead for market-driven approaches free from artificial monopolies.

00:00 -- Intro. Welcoming my friend and verifiably smart person, Stephan Kinsella!

00:44 -- Is Trump's new executive order going to make drugs cheaper in the US?

02:26 -- What ever would we do without the government? Are they here to make us safe?

04:30 -- Bob Murphy interviewed Alex Tabarrok about this issue. Stephan has some critiques!

06:32 -- Clip 1: Does Trump's EO "import price controls" from other countries? What's missing from the analysis?

14:38 -- Clip 2: Do countries "free ride" off our "free market" system? Is that why drugs cost more here? No! What freakin' free market?! Also, what does "market failure" really mean?

23:47 -- Clip 3: Price discrimination makes sense in other market areas. What's the problem with using it for pharmaceuticals across national boundaries?

30:27 -- Clip 4: Why do some "free market" economists hate free trade so much?

34:36 -- Clip 5: What on earth is the "Tabarrok Curve" in relation to intellectual property laws? Also, is it true that pharmaceuticals are THE definitive case for the necessity for IP laws? Stephan says not, and shows his work.

52:03 -- A truly bonkers "replacement" for IP: Create a tax-funded prize system for innovation!

57:30 -- Is the Overton Window on the IP issue beginning to shift at all?

1:02:53 -- Outro. Thanks for watching Haman Nature!

Background and Relevant Links

Tabarrok and Murphy: Why Are US Drug Prices So High?

The Problem with Intellectual Property

Mark Lemley: The Very Basis Of Our Patent System… Is A Myth

Intellectual Property’s Great Fallacy

The Overwhelming Empirical Case Against Patent and Copyright

Tabarrok, Cowen, and Douglass North on Patents

Tabarrok’s Launching the Innovation Renaissance: Statism, not renaissance

Tabarrok: Patent Policy on the Back of a Napkin7

$30 Billion Taxfunded Innovation Contracts: The “Progressive-Libertarian” Solution

Libertarian Favors $80 Billion Annual Tax-Funded “Medical Innovation Prize Fund

What’s Worse: $80 Billion or $30 Million?

Software Patents Bad, Pharmaceutical Patents Good?: confused “libertarian” “opponents” of state monopoly privileges

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Transcript: Haman Nature with Stephan Kinsella

Adam Haman welcomes patent attorney and libertarian legal theorist Stephan Kinsella back to the show to discuss why prescription drugs are so expensive in the US and what can (and should) be done about it. Even "free market" economists like George Mason University's Alex Tabarrok get this wrong!

00:00 Adam Haman: Welcome to Haman Nature! Today, I’m thrilled to have my friend and verifiably smart person, Stephan Kinsella, back on the show!

00:44 Adam Haman: Stephan, let’s dive in. Is Trump’s new executive order going to make drugs cheaper in the US?

00:44 Stephan Kinsella: Well, Adam, the idea that an executive order can just magically lower drug prices oversimplifies a complex issue. The high cost of pharmaceuticals in the US is tied to a web of regulations, subsidies, and intellectual property laws, not something you fix with a pen stroke. Let’s unpack it.

02:26 Adam Haman: It’s easy to lean on the government as the solution. Are they really here to make us safe, or is there more to the story?

02:26 Stephan Kinsella: The notion that we’d be lost without government intervention is a myth. Safety often comes from market incentives and competition, not bureaucratic mandates. The government’s role in drug pricing often distorts markets, driving costs up rather than down.

04:30 Adam Haman: Bob Murphy interviewed Alex Tabarrok about this issue, and I know you’ve got some thoughts on that. What’s your critique?

04:30 Stephan Kinsella: Tabarrok’s take, as discussed with Murphy, misses some critical points. He’s a sharp guy, but his defense of certain policies leans too heavily on statist assumptions. Let’s look at the specifics.

06:32 Adam Haman: Here’s Clip 1: Does Trump’s executive order “import price controls” from other countries? What’s missing from Tabarrok’s analysis?

Kinsella on Liberty Podcast: Episode 467.

I was asked one Juani (@witheredsummer), an Argentinian Voluntarist, on Twitter and then later via email, to review his draft article "Ideas Are Free: A Case Against Intellectual Property" (text below) (I note that perhaps ironically, this title is almost identical to one of my own previous publications/speeches, Ideas are Free: The Case Against Intellectual Property: or, How Libertarians Went Wrong). I told him it was too long for me to fisk, got Grok to analyze it (see below), and told him to read up on some of my work and review the analysis, so that we could have a more productive conversation about it, and which I could also at least record for my podcast. This is our discussion.

In the end, he didn't really have many questions and I think he just wanted to vent about how bad IP is and express frustration at out outrageous and harmful it is. And suggest some ways to get through to people and propose reforms. Things I already knew and have been writing about for 30 years. He basically identifies many problems with and absurdities with IP law ... which he's right about and which I've mentioned ... and comes up with some proposals for IP reform that would reduce its harm. Again, which he's right about and which I and others have also proposed, but also which are unlikely to be adopted by those infested with the IP mind-virus. Not really sure what the point of this was, but here it is FWIW.

https://youtu.be/AS-8mFZGfnI

GROK SHOWNOTES:

[0:00-15:00] In this episode of the Stephan Kinsella podcast (KOL467), host Stephan Kinsella engages with Juani from Argentina to discuss intellectual property (IP) and its implications, particularly in the context of artificial intelligence (AI). Juani, a programmer and self-described libertarian, shares his consequentialist critique of IP, influenced by Kinsella’s work and his own essay, "Ideas for Free: A Case Against Intellectual Property." The conversation begins with Juani outlining his concerns about IP’s practical harms, such as its impact on innovation and culture, and transitions into a discussion about AI. They explore how AI’s reliance on vast datasets, often containing copyrighted material, raises legal questions about copying, authorship, and derivative works. Kinsella highlights the tension between copyright law and AI development, noting that current laws could stifle AI’s potential by limiting data access or imposing costly licensing requirements.

[15:01-1:37:33] The discussion deepens into specific examples of IP’s negative effects, including cultural erasure through Disney’s sanitized retellings of historical figures like Pocahontas and Mulan, and the economic burdens of pharmaceutical patents, which restrict access to life-saving drugs in poorer nations. Juani argues that IP acts as a form of censorship and reinforces wealth disparities, citing cases like patent trolling and the high cost of educational materials in developing countries. Kinsella agrees, emphasizing that IP distorts markets and innovation, and suggests that copyright’s harm to AI development may rival its threat to internet freedom. Toward the end, Juani proposes a reform to replace IP exclusivity with a decaying royalty system, which Kinsella views skeptically, arguing that entrenched IP proponents will resist any reduction in rights. The episode concludes with reflections on piracy, the success of platforms like Steam, and the cultural shift toward viewing copying as less harmful, signaling a potential change in public perception of IP.

 

Youtube Transcript and detailed Grok shownotes below.

Related:

KOL466 | On IP Reform and Improving IP law

FDA and Patent Reform: A Modest Proposal

“Absurd Arguments for IP”

“The Patent, Copyright, Trademark, and Trade Secret Horror Files”

Boldrin & Levine on Covid-19, Vaccines, the Pharmaceutical Industry, and Patents

Patents and Pharmaceuticals

Update: Patents Kill: Compulsory Licenses and Genzyme’s Life Saving Drug

Patents Kill: Compulsory Licenses and Genzyme’s Life Saving Drug

You wouldn’t download a car!

Whereupon Grok admits it (and AI) is severely gimped by copyright law

Copyrighting all the melodies to avoid accidental infringement | Damien Riehl

IP Imperialism

Libraries: Prepare to burn foreign books, courtesy copyright law (The first-sale doctrine and resale of books)

Libertarian and IP Answer Man: Artificial Intelligence and IP

How long copyright terms make art disappear

Mark Lemley: The Very Basis Of Our Patent System… Is A Myth

Intellectual Property's Great Fallacy

AI and copyright: what future for the UK government's consultation?

Forcing UK creatives to ‘opt out’ of AI training risks stifling new talent, Cambridge experts warn

Infringement risk relating to training a generative AI system

Copyright Infringement by Generative AI Tools Under US and UK Law: Common Threads and Contrasting Approaches.

How a US AI ruling could influence UK copyright policy

Juani sent me these links:

On Milei's reforms in terms of copyright; in Spanish; in Spanish

As for that one story of IP in Sybaris, I mentioned it comes from Deipnosophistae, which is an Ancient Greek text. I do owe you the exact reference though, but it is supposed to be about Chapter 20 of Book III, or section 98e of Book 3, or so is cited elsewhere.

And the book I recommended is a collection of excerpts from the Zhuangzi, many of which echo a Libertarian, pro-spontaneous order message all the way back in the 3rd century BCE. I own a different edition of the book, but the contents should be the same: Thomas Merton, The Way of Chuang Tzu

Detailed Grok Shownotes

Bullet-Point Summary for Show Notes with Time Block Descriptions

Summary Overview: In episode KOL467, Stephan Kinsella and Juani from Argentina explore the multifaceted issues surrounding intellectual property (IP), with a focus on its intersection with artificial intelligence (AI), cultural impacts, and economic consequences. Their discussion critiques IP’s philosophical and practical shortcomings, using examples from AI lawsuits, Disney’s cultural narratives, and pharmaceutical patents. Juani advocates for reform, while Kinsella emphasizes the systemic flaws of IP, predicting resistance to change but noting technology’s role in shifting attitudes toward piracy.

0:00-15:00: Introduction and AI-IP Tensions

Description: Kinsella introduces Juani, a programmer from Argentina, and sets the stage for discussing Juani’s essay critiquing IP. They delve into how AI’s data-heavy training processes conflict with copyright law, exploring issues of authorship, derivative works, and fair use.

Summary:

[0:00-0:48] Kinsella opens the podcast, noting it as KOL467, and introduces Juani, who has written a 25-page draft on IP, influenced by Kinsella’s work.

[0:49-2:54] Juani describes his libertarian, consequentialist perspective on IP, shaped by personal thinking and Kinsella’s writings. He identifies as a voluntarist with Austrian economic sympathies.

[3:01-5:19] They discuss Argentine reforms under Milei, including the removal of music royalty regulations, which caused controversy among mainstream musicians.

[5:20-9:26] Juani introduces his essay’s focus on AI and IP, highlighting lawsuits like Authors Guild vs. Open AI, questioning how copyright applies to AI-generated content.

[9:27-15:00] Kinsella clarifies authorship issues (e.g., the monkey selfie case) and explains copyright’s scope, including literal copying and derivative works. He notes that AI training involves copying that may violate copyright, potentially hobbling AI development.

15:01-30:00: AI’s Practical Challenges and Broader IP Harms

Description: The conversation shifts to the practical implications of copyright on AI, including the infeasibility of filtering massive datasets and the chilling effect of lawsuits. They also touch on non-IP concerns, like AI ethics and state regulation risks.

Summary:

[15:01-19:58] Juani details how AI training datasets inevitably include copyrighted material, making compliance with copyright law impractical. Kinsella agrees, noting that regulators prioritize enforcement over feasibility.

[20:00-24:58] They discuss legal ambiguities around AI-generated works, with Kinsella suggesting that courts may adapt by presuming access to copyrighted material, shifting burdens of proof.

[25:00-30:00] Juani expresses concern about state regulation of AI on ethical grounds, fearing it could stifle innovation. Kinsella counters that copyright already regulates AI, amplifying its harm by limiting data access.

30:01-45:00: Cultural and Economic Impacts of IP

Description: The focus turns to IP’s cultural and economic consequences, with examples like Disney’s control over Mickey Mouse and sanitized historical narratives. They discuss how IP enables censorship and reinforces wealth disparities.

Summary:

[30:01-34:30] Kinsella argues that copyright’s distortion of AI may be its greatest harm, surpassing its threat to internet freedom. Juani predicts lawsuits from copyright holders will hinder AI progress.

[34:31-39:00] They critique IP’s incompatibility with AI, as it struggles to define authorship when machines generate content. Juani fears state surveillance using AI, enabled by lax self-regulation.

[39:01-45:00] Juani highlights Disney’s extended copyright on Mickey Mouse and attempts to patent a musical scale, illustrating IP’s absurdity. Kinsella cites the “Happy Birthday” lawsuit as an example of vague, bullying IP enforcement.

45:01-1:00:00: Cultural Erasure and Creative Freedom

Description: Juani elaborates on IP as cultural erasure, using Disney’s Pocahontas and Mulan as case studies. They discuss how IP restricts creative freedom, particularly for musicians and marginalized voices.

Kinsella on Liberty Podcast: Episode 466.

https://youtu.be/JAwxQTrPDII

Re

.@NSKinsella has proposed a number of patent reforms if we decide as a society not to abolish the patent system. This is, in my view, a more plausible way forward (politically) instead of demanding the abolition of patents.https://t.co/q3a0U2HQJ6

In this annotated extract, I… https://t.co/Jm36N2kjxa pic.twitter.com/Fs1caiVven

— Sanjeev Sabhlok (@sabhlok) June 4, 2025

Sabhlok's markup of my proposals:

See How to Improve Patent, Copyright, and Trademark Law and “Reducing the Cost of IP Law,” Mises Daily (2010). See also Tabarrok’s Launching the Innovation Renaissance: Statism, not renaissance

How to Improve Patent, Copyright, and Trademark Law

by Stephan Kinsella on February 1, 2011

[From my Webnote series]

This is included as ch. 41 of Stephan Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023).

See also proposals for reform in “Reducing the Cost of IP Law”; also Do Business Without Intellectual Property (Liberty.me, 2014); KOL164 | Obama’s Patent Reform: Improvement or Continuing Calamity?: Mises Academy (2011). And FDA and Patent Reform: A Modest Proposal

***

From my Mises blog post a year ago:

How to Improve Patent, Copyright, and Trademark Law

Archived comments (below)

January 13, 2010 by Stephan Kinsella

As I note in my article “Radical Patent Reform Is Not on the Way,” Mises Daily (Oct. 1, 2009), there is a growing clamor for reform of patent (and copyright) law, due to the increasingly obvious injustices resulting from these intellectual property (IP) laws. However, the various recent proposals for reform merely tinker with details and leave the essential features of the patent system intact. Patent scope, terms, and penalties would still be essentially the same. In the second article of this two-part series, “Reducing the Cost of IP Law,” Mises Daily, published today, I propose various reforms to the existing patent system–short of abolition–that would significantly reduce the costs and harm imposed by the patent system while not appreciably, or as significantly, reducing the innovation incentives and other purported benefits of the patent system. I list these changes below in generally descending order of importance, without elaboration, as they are discussed further in “Reducing the Cost of IP Law”:

Patent Law

Reduce the Patent Term

Remove Patent Injunctions/Provide Compulsory Royalties

Add a Royalty Cap/Safe Harbor

Reduce the Scope of Patentable Subject Matter

Provide for Prior-Use and Independent-Inventor Defenses

Instantly Publish All Patent Applications

Eliminate Enhanced Damages

Add a Working/Reduction to Practice Requirement1

Provide for Advisory Opinion Panels

Losing Patentee Pays

Expand Right to Seek Declaratory Judgments

Exclude IP from Trade Negotiations

[update: add a fair-use defense2

reinvogorate the reverse doctrine of equivalents defense ]

Other Changes

Increase the threshold for obtaining a patent

Increase patent filing fees to make it more difficult to obtain a patent

Make it easier to challenge a patent’s validity at all stages

Require patent applicants to specify exactly what part of their claimed invention is new and what part is “old” (e.g., by the use of European-style “characterized in that “claims)

Require patent applicants to do a search and provide an analysis showing why their claimed invention is new and nonobvious (patent attorneys really hate this one)

Limit the number of claims

Limit the number of continuation applications

Remove the presumption of validity that issued patents enjoy—e.g. a utility model or “petty patent” system, in which patent applications are examined only minimally and receive narrower protection; this type of IP right is already available in some countries) (( Reducing the Cost of IP Law; Tabarrok’s Launching the Innovation Renaissance: Statism, not renaissance. ))

Apportion damages to be proportional to the value of the patent

Copyright

update: First Amendment Defense Act of 2021

Radically reduce the term, from life plus 70 years to, say, 10 years

Remove software from copyright coverage (it’s functional, not expressive)

Require active registration and periodic re-registration (for a modest fee) and copyright notice to maintain copyright (today it is automatic, and it is often impossible to determine, much less locate, the owner), or otherwise make it easier to use “orphaned works“

Provide an easy way to dedicate works to the public domain — to abandon the copyright the state grants authors

Eliminate manifestly unjust provisions of the Digital Millennium Copyright Act (DMCA), such as its criminalization of technology that can be used to circumvent digital protection systems

Expand the “fair use” defense and clarify it to remove ambiguity

Provide that incidental use (e.g., buildings or sculptures appearing in the background of films) is fair use

Reduce statutory damages

Note: Because some of these changes would violate the Berne Convention, the US should exit this and any other relevant treaty3

Trademark

Raise the bar for proving “consumer confusion”

Abolish “antidilution” protection

In fact, abolish the entire federal trademark law, as it is unconstitutional (the Constitution authorizes Congress to enact copyright and patent laws, but not trademark law)

***

See also FDA and Patent Reform: A Modest Proposal

Kinsella on Liberty Podcast: Episode 465.

On stupid and confused "thickism" see various posts under tag thickism, and Cory Massimino, "Libertarianism is More than Anti-Statism," C4SS (April 8th, 2014).

GROK SHOWNOTES: [0:00–9:16] In this engaging episode of the Kinsella on Liberty podcast, Stephan Kinsella and Sheldon Richman tackle the contentious issue of pharmaceutical price controls under Trump’s executive order, questioning their equivalence to traditional price controls that distort markets. Kinsella, drawing on his extensive critique of intellectual property (Patents and Pharmaceuticals, 2023; Patents, Pharma, Government: The Unholy Alliance, 2024), argues that patents create artificial monopolies, so price controls countering these are not standard interventions but responses to government-granted privileges. Richman highlights FDA-imposed costs, which patents partially offset, though Kinsella counters that these costs are overstated, citing lower drug prices abroad (Drug Reimportation, 2009). They endorse reimportation as a market-based solution, referencing Connor O’Keefe’s analysis (Mises: How Trump Can Lower Drug Prices Without Price Controls, 2025), but criticize Trump’s coercive tactics as resembling a protection racket (Trump’s Worst Idea: Pharmaceuticals, 2025) (0:02–6:00). The discussion also critiques antitrust laws and secondary regulations, with Richman warning against Kevin Carson’s approach of layering controls atop privileges (Kevin Carson on Confiscating Property from the Rich, 2016) (6:00–9:16).

[9:16–1:13:35] The conversation shifts to a robust defense of the corporate form, addressing left-libertarian criticisms of limited liability and shareholder responsibility. Kinsella, aligning with Robert Hessen’s contractual view and his own writings (Corporate Personhood, Limited Liability, and Double Taxation, 2011; Left-Libertarians, Corporations, Expropriating Stakeholders, 2008), argues that limited liability is not a privilege but a logical outcome of action-based responsibility, where shareholders are not liable unless causally responsible for torts (Van Dun on Freedom versus Property and Hostile Encirclement, 2009). Richman decries the pejorative use of “corporate” by figures like Roderick Long, rejecting claims that corporations inherently rely on state favoritism (Comment on Left-Libertarianism on Roderick Long’s Sub-Ex Dep Post, 2009) (9:16–36:01). They explore thick libertarianism, agreeing that individualism connects to broader values but remains distinct, and critique Walter Block’s evictionism on abortion, with Kinsella arguing fetuses are not trespassers due to maternal actions (Together Strong Debate with Walter Block, 2022) (36:01–1:13:35). A lighthearted discussion on pipe tobacco reflects their commitment to personal liberty, underscoring their broader libertarian principles (Wombatrons: Why I Am a Left-Libertarian, 2009).

https://youtu.be/5YaTsoDH9Eg

Grok detailed shownotes:

Detailed Segment Summary for Show Notes

Segment 1: Price Controls, Patents, and Reimportation (0:02–9:16)

Description and Summary: Kinsella andMemphis-based Robert Hessen and Sheldon Richman discuss Trump’s pharmaceutical price control executive order, questioning its implications. Kinsella, per his writings (Patents and Pharmaceuticals, 2023; Patents, Pharma, Government: The Unholy Alliance, 2024), argues that patents create monopoly prices, so price controls countering these aren’t standard market distortions, as patents themselves are government-granted (IP vs. Antitrust, 2005). Richman notes FDA costs inflate drug prices, but Kinsella cites lower prices abroad to argue these costs are overstated (Drug Reimportation, 2009) (0:02–2:28). They advocate reimportation, citing Connor O’Keefe’s market-based approach (Mises: How Trump Can Lower Drug Prices Without Price Controls, 2025), and criticize Trump’s coercive tactics as a protection racket (Trump’s Worst Idea: Pharmaceuticals, 2025) (2:28–6:00). The segment critiques antitrust laws and secondary regulations, with Richman comparing them to Kevin Carson’s flawed approach (Kevin Carson on Confiscating Property from the Rich, 2016) (6:00–9:16).

Segment 2: Defending the Corporate Form (9:16–24:04)

Description and Summary: The discussion shifts to corporations, with Kinsella and Richman defending Robert Hessen’s view that corporations are contractual, not state-privileged. Kinsella argues shareholders aren’t liable for torts unless causally responsible, aligning with his causal responsibility principle (Van Dun on Freedom versus Property and Hostile Encirclement, 2009) (9:16–11:51). They explore Hessen’s rejection of respondeat superior, noting corporate assets and insurance cover damages, making shareholder liability moot (11:51–15:37). The segment challenges the assumption that shareholders are “owners” responsible for corporate actions, emphasizing action-based liability (15:37–24:04).

Segment 3: Anti-Corporate Sentiment and Accountability (24:04–40:03)

Description and Summary: Kinsella and Richman critique left-libertarian hostility toward corporations, with Richman decrying the pejorative use of “corporate” by figures like Glenn Greenwald. They reject claims of corporate privilege, particularly around limited liability, arguing it’s not a subsidy but a logical outcome of action-based responsibility (24:04–29:34). They challenge Roderick Long’s example of a VPN company’s misconduct, asserting markets and corporate structures foster accountability via stock watchers and reputation (29:34–35:56). They propose updating Hessen’s work, humorously suggesting Grok could draft it, reflecting their pro-market stance (Decouple Trade and IP Protection, 2024) (35:56–40:03).

Segment 4: Pipe Tobacco and Regulatory Impacts (40:03–56:01)

Description and Summary: The conversation lightens as Kinsella and Richman discuss pipe tobacco preferences, including cherry, vanilla custard, and Latakia blends. They note FDA regulations and Trump’s tariffs affect tobacco imports, but recent FDA personnel changes may ease restrictions, aligning with their anti-regulatory views (40:03–51:04). Richman explains his zero-nicotine vaping, reflecting personal liberty in consumption choices (51:04–56:01). This segment underscores their resistance to overregulation, consistent with Kinsella’s broader critiques (Price Controls, Antitrust, and Patents, 2011).

Segment 5: Thick Libertarianism, Abortion, and Obligations (56:01–1:13:35)

Description and Summary: The episode explores thick libertarianism, with Kinsella agreeing that individualism links to values like empathy but remains distinct from economics or ethics. They critique Roderick Long’s view that libertarianism implies opposing non-aggressive harms like bullying (56:01–1:02:28). Kinsella challenges Walter Block’s evictionism on abortion, arguing fetuses aren’t trespassers due to maternal actions, consistent with his debate with Block (Together Strong Debate with Walter Block, 2022) and his action-based responsibility framework (1:02:28–1:10:29). They discuss positive obligations, rejecting unchosen duties but acknowledging contextual ones, and conclude with a nod to libertarian debates, reflecting their analytical rigor (1:10:29–1:13:35).

Resources:

O’Keeffe (Mises): How Trump Can Lower Drug Prices Without Price Controls

Sheldon's facebook post about Trump's price controls

Randy Barnett, “What’s Next for Libertarianism?”

Van Dun, Barnett on Freedom vs. Property

Van Dun on Freedom versus Property and Hostile Encirclement

Corporate Personhood, Limited Liability, and Double Taxation

Wombatron’s “Why I Am A Left-Libertarian”

Left-Libertarians on Corporations “Expropriating the Efforts of Stakeholders”

Comment on Left-Libertarianism on Roderick Long’s “Sub, Ex, & Dep” Post

Trump’s “Worst Idea”: Undercutting Patent-Inflated Monopoly Pharmaceutical Patents

FDA and Patent Reform: A Modest Proposal

Cato on Drug Reimportation; Cato Tugs Stray Back Onto the Reservation; and Other Posts

“Patents, Pharma, Government: The Unholy Alliance,” Brownstone Institute (April 1, 2024)

Patents and Pharmaceuticals

“Decouple Trade and IP Protection,” Brownstone Institute (Dec. 4, 2024)

“Price Controls, Antitrust, and Patents”

Patents, Prescription Drugs, and Price Controls

The Schizo Feds: Patent Monopolies and the FTC (Aug. 2006)

IP vs. Antitrust

Kevin Carson on Confiscating Property from the Rich

KOL442 | Together Strong Debate vs. Walter Block on Voluntary Slavery (Matthew Sands of Nations of Sanity)

Update: From Wikipedia: Libertarianism in the United States: Thin and thick libertarianism:

Thin and thick libertarianism

Thin and thick libertarianism are two kinds of libertarianism. Thin libertarianism deals with legal issues involving the non-aggression principle only and would permit a person to speak against other groups as long as they did not support the initiation of force against others.[231] Walter Block is an advocate of thin libertarianism.[232] Jeffrey Tucker describes thin libertarianism as "brutalism" which he compares unfavorably to "humanitarianism".[233] (( Libertarianism Is More Than Just Rejecting Force The "thick" and "thin" of libertarian philosophy. Reason. Sheldon Richman | 4.6.2014 8:00 AM  ))

Thick libertarianism goes further to also cover moral issues. Charles W. Johnson describes four kinds of thickness, namely thickness for application, thickness from grounds, strategic thickness and thickness from consequences.[234] Thick libertarianism is sometimes viewed as more humanitarian than thin libertarianism.[235] Wendy McElroy has stated that she would leave the movement if thick libertarianism prevails.[236] (( A Letter to My Father ))

Stephan Kinsella rejects the dichotomy altogether, writing: "I have never found the thick-thin paradigm to be coherent, consistent,

Kinsella on Liberty Podcast: Episode 464.

I appeared on the new show Tyrant's Den a few days ago. It was released today (May 2, 2025) along with the other initial episodes.

Chat GPT shownotes:

In this engaging episode of The Tyrants' Den, host and guest delve into a wide-ranging discussion with Stephan Kinsella, a leading libertarian legal theorist and retired patent attorney. The conversation begins [0:01–7:20] with Kinsella’s background in patent law, where he candidly reflects on his anti-IP stance even while working within the IP system. He outlines how his libertarian beliefs shaped his legal career, how he avoided ethically troubling work like aggressive patent litigation, and how he transitioned to full-time libertarian scholarship, including his influential work on intellectual property and legal theory.

As the episode unfolds [7:20–59:45], Kinsella explores the philosophical foundations of law from Roman and common law to natural law, and discusses international law, war crimes, and higher-law principles that transcend statutory frameworks. He articulates his estoppel theory of rights, critiques legal positivism, and examines proportionality in justice. Later segments address libertarian perspectives on immigration policy, property rights, and the influence of Kant on modern libertarian thinkers like Hans-Hermann Hoppe. Kinsella closes by recommending his book Legal Foundations of a Free Society [59:00–59:45], which compiles decades of his work on law, rights, and liberty.

Grow shownotes:

[00:00–15:00] In this episode of the Tyrants Den podcast, recorded on February 24, 2025, host Tyrell (The Liberty Tyrant) interviews Stephan Kinsella, a prominent libertarian thinker and retired patent attorney, to discuss law, rights, and Hans-Hermann Hoppe’s contributions to libertarian theory. Kinsella shares his unique perspective as an anti-intellectual property (IP) patent attorney, explaining how he practiced patent law for 30 years while advocating for the abolition of IP, viewing his role as akin to providing defensive tools for clients. He introduces Hoppe’s argumentation ethics, which defends libertarian norms like self-ownership and the non-aggression principle by arguing that denying them creates a performative contradiction in discourse.

[15:01–59:45] The conversation explores Hoppe’s critique of the state as an aggressor and his vision for private, decentralized legal systems grounded in property rights. Kinsella discusses natural law, common law, and civil law, drawing on his experience in Louisiana’s civil law system and his international law studies. He explains his estoppel theory of rights, inspired by Hoppe and common law, which posits that aggressors cannot object to defensive force due to their prior actions, provided responses are proportional. The episode concludes with a discussion on immigration, where Kinsella proposes an invitation-based system to balance liberty and cultural concerns, and a plug for his book, Legal Foundations of a Free Society.

Transcript and detailed shownotes below.

https://youtu.be/B00FziQs3BU?si=-VENJyK6ylvdB_XH

 

ChatGPT Detailed Shownotes

Detailed Summary with Time-Stamped Segments (Shownotes Body)

[0:01–7:20] | Kinsella's Legal Career and Anti-IP Perspective

Kinsella introduces his background as a patent attorney and libertarian.

He explains how, despite opposing intellectual property, he practiced IP law ethically by avoiding aggressive enforcement work.

Notes how libertarian theory shaped both his legal and writing careers.

[7:20–11:20] | Foundations of Legal Systems: Roman vs. Common Law

Discusses the difference between civil (Roman-based) and common law traditions.

Explains Louisiana’s unique civil law system and its impact on his legal education.

Outlines historical influences on modern legal systems, including international and merchant law.

[11:20–17:00] | Natural Law and Higher-Order Legal Principles

Introduces natural law as the philosophical grounding for justice.

Analyzes how natural law influenced canon law and early international law.

Cites the Nuremberg Trials as an example of appealing to higher law against unjust statutes.

[17:00–22:30] | Malum Prohibitum vs. Malum in Se and Legal Injustice

Discusses unjust laws created by the state and how they differ from naturally wrong acts.

Argues that real justice aligns with intuitive moral sense, not arbitrary legislation.

[22:30–31:20] | Estoppel and Argumentation Ethics

Explains his estoppel-based theory of rights and contrasts it with utilitarian and natural rights theories.

Details how he integrated Hans-Hermann Hoppe’s argumentation ethics into a framework for consistent libertarian justice.

Connects common law doctrine of estoppel to libertarian ethics.

[31:20–40:00] | Proportional Justice and Use of Force

Considers proportionality in punishment and self-defense.

Discusses real-world examples, including controversial self-defense cases and traps for burglars.

Emphasizes the risks of vigilantism and the importance of impartial legal processes.

[40:00–45:00] | Kant, Realism, and Libertarian Epistemology

Responds to critiques of Kant’s influence on libertarian theory.

Clarifies the realist interpretation of Kant adopted by Mises and Hoppe.

Argues for compatibility among Kantian, Randian, and Rothbardian approaches to knowledge and action.

[45:00–51:00] | Consciousness, AI, and the Need for Embodiment

Shares thoughts on artificial intelligence and the prerequisites for consciousness.

Suggests that embodiment and interaction with the physical world are necessary for genuine AI cognition.

[51:00–57:00] | Immigration and Libertarian Dilemmas

Breaks down the tension between open and closed borders from a libertarian standpoint.

Highlights Hans-Hermann Hoppe’s analysis of forced integration vs. forced exclusion.

Proposes an “invitation-only” immigration system as a pragmatic improvement under state regimes.

[57:00–59:45] | Final Thoughts and Resource Recommendations

Kinsella endorses decentralization as a safeguard against cultural and economic destabilization.

Recommends his book Legal Foundations of a Free Society, available for free online.

Ends with appreciation for the podcast and encouragement for listeners to explore libertarian legal theory.

Grok detailed shownotes:

Detailed Summary by Time Segments

Segment 1: Introduction and Kinsella’s Background

Time Markers: [00:00–11:06]

Description and Summary:

Tyrell (The Liberty Tyrant) introduces Kinsella as a top libertarian thinker and retired patent attorney, highlighting the paradox of being an anti-IP patent lawyer.

Kinsella explains his 30-year career (1992–2022) in patent prosecution, preparing applications for corporate clients in electronics and laser technology, while believing the IP system should be abolished.

He compares his role to a defense attorney opposing drug laws, helping clients navigate the system without supporting aggressive patent lawsuits.

Kinsella discusses his libertarian writing, initially cautious about publishing anti-IP views but finding that clients and colleagues were impressed by his expertise, not deterred by his stance.

He attributes his interest in law to a desire to combine his engineering background with verbal and analytical reasoning, finding law more fulfilling and lucrative.

Segment 2: Legal Systems and Libertarian Theory

Time Markers: [11:07–22:30]

Description and Summary:

Kinsella explains the distinction between common law (Anglo-American, judge-driven, precedent-based) and civil law (codified, Roman-influenced), noting Louisiana’s unique civil law system due to French and Spanish heritage.

He discusses Roman law and European customary law as decentralized systems, contrasting them with modern legislative overrides that taint common and civil law with special-interest statutes.

International law is described as more libertarian, respecting state sovereignty and treaties with less legislative corruption, influenced by natural law thinkers like Pufendorf and Grotius.

Kinsella addresses the Nuremberg trials, acknowledging their flaws but praising the recognition of a higher law above national statutes, aligning with libertarian principles against mass murder and genocide.

He critiques the “ignorance is no excuse” doctrine for legislated laws (malum prohibitum) but supports it for intuitive wrongs like theft and murder (malum in se), which align with natural law engraved on the “human heart.”

Segment 3: Estoppel Theory and Rights

Time Markers: [22:31–35:34]

Description and Summary:

Kinsella introduces his estoppel theory of rights, inspired by Hoppe’s argumentation ethics and the common law doctrine of estoppel, which prevents contradictory claims in court.

He explains that aggressors are “estopped” from objecting to defensive force because their prior aggression contradicts their claim to non-violence, but proportionality is required to limit excessive retaliation.

An example is provided: a minor aggressor (e.g., slapping someone) cannot complain about equivalent retaliation but can object to disproportionate responses like murder.

Kinsella discusses a disturbing case of a home invader being overpunished, noting that disproportionate punishment and vigilantism (taking the law into one’s hands unnecessarily) are problematic, as impartial third parties like police or courts should handle justice once the immediate threat is subdued.

Kinsella on Liberty Podcast: Episode 463.

Update: See also KOL338 | Human Action Podcast Ep. 308 with Jeff Deist: Rothbard on Punishment, Property, and Contract and this Grok analysis of various problems with smart contracts including the fact that most loans are unsecured.

A followup discussion with André Simoni of Brazil about some questions he had about applying my/Rothbard’s title-transfer. See also KOL457 | Sheldon Richman & IP; Andre from Brazil re Contract Theory, Student Loan Interest Payments, Bankruptcy, Vagueness, Usury.

Grok Shownotes: 0:00–29:42] In this episode of the Kinsella on Liberty podcast (KOL463), Stephan Kinsella engages in a follow-up discussion with André Simoni from Brazil, building on their prior conversation with Sheldon Richman (KOL457). The dialogue begins with André revisiting his concerns about usury, fractional-reserve banking, and the nature of loan contracts, proposing a libertarian limit on interest rates to prevent exploitative lending practices that could lead to effective enslavement. He argues that modern financial systems, including fractional-reserve banking and fiat currency, are interconnected mechanisms designed to promote unsustainable economic activity, drawing insights from Doug French’s book Walk Away. Kinsella challenges André’s framing, particularly his view of loan contracts as bilateral exchanges, asserting instead that they are unilateral title transfers under Rothbard’s title-transfer theory of contract. The discussion delves into the impracticality of “smart contracts” and escrow-based performance bonds, highlighting the inherent uncertainties in contractual damages and future obligations.

[29:43–1:39:34] The conversation shifts to a deeper exploration of risk, inalienability, and the moral hazards embedded in modern banking systems. André connects usury and fractional-reserve banking, arguing that banks exploit depositors and borrowers by offloading risk while profiting as intermediaries, creating a system akin to a Ponzi scheme propped up by state interventions like deposit insurance. Kinsella agrees that the current system is corrupt but emphasizes that in a free market with full disclosure, such practices would be unsustainable due to economic realities and the inability to insure against systemic risks. They discuss the legitimacy of loan contracts, with André expressing concern about contracts that shift excessive risk to borrowers, potentially violating inalienability principles. The episode concludes with a discussion on corporations and limited liability, with André suggesting that corporate structures exacerbate risk-shifting, while Kinsella defends the contractual basis of corporations, referencing his prior discussions with Jeff Barr (KOL414, KOL418). Links to further resources and a promise to continue the dialogue are provided.

 

Youtube Transcript and Detailed Grok Summary below.

https://youtu.be/8AfTdeiDJD0

Links:

Mercadente, The Illiberal Nature of Limited Liability: A Libertarian Critique

Recent Grok conversation

Libertarian Answer Man: Legal Entities and Corporations in a Free Society (Feb. 29, 2024)

Libertarian Answer Man: Corporations, Trusts, HOAs, and Private Law Codes in a Private Law Society (Nov. 11, 2023)

KOL414 | Corporations, Limited Liability, and the Title Transfer Theory of Contract, with Jeff Barr: Part I

KOL418 | Corporations, Limited Liability, and the Title Transfer Theory of Contract, with Jeff Barr: Part II

On Coinbase, Bitcoin, Fractional-Reserve Banking, and Irregular Deposits

UK Proposal for Banking Reform: Fractional-Reserve Banking versus Deposits and Loans

Musings on Fractional-Reserve Banking in a Bitcoin Age; Physicalist Shock Absorber Metaphors

The Great Fractional Reserve/Freebanking Debate

Jesús Huerta de Soto, Money, Bank Credit, and Economic Cycles

Stephan Kinsella, “The Title-Transfer Theory of Contract,” Papinian Press Working Paper #1 (Sep. 7, 2024)

Corporate Personhood, Limited Liability, and Double Taxation

Doug French, Walk Away: The Rise and Fall of the Home-Ownership Myth (LFB ebook version)

My thoughts on bankruptcy and inalienability: see Areas that need development from libertarian thinkers

GROK DETAILED SUMMARY:

Detailed Summary for Show Notes with Time Segments

Segment 1: Introduction and Usury Concerns (0:00–12:00)

Description: André introduces the topics from their prior discussion with Sheldon Richman (KOL457), focusing on usury, loan contracts, and fractional-reserve banking. He proposes a libertarian limit on interest rates to prevent exploitative lending, citing inalienability to argue that excessive interest could enslave borrowers. Kinsella disagrees, framing loan contracts as unilateral title transfers per Rothbard’s theory, not bilateral exchanges as André suggests. André references Doug French’s Walk Away, emphasizing non-recourse loans as a fairer model.

Summary:

André argues that high interest rates can lead to enslavement, proposing a limit (0:21–0:49).

Kinsella challenges André’s bilateral contract view, advocating for Rothbard’s title-transfer theory (1:03–1:17).

Discussion of Walk Away highlights non-recourse loans, where only collateral is at risk, as a preferable model (3:35–4:01).

Kinsella critiques Bitcoin “smart contracts” and Rothbard’s performance bond concept as impractical due to uncertain damages and future obligations (4:47–6:55).

Segment 2: Fractional-Reserve Banking and Economic Instability (12:01–29:42)

Description: The conversation shifts to fractional-reserve banking, with André arguing it’s inherently fraudulent and economically unstable, creating more titles than assets. Kinsella agrees it’s unstable but argues it’s not fraudulent with full disclosure, framing it as an economic issue rather than an ethical one. They discuss how banks issue IOUs, not titles, and the uninsurable risks of insolvency. André ties this to a broader critique of fiat currency and central banking, seeing them as mechanisms to extract wealth.

Summary:

André views fractional-reserve banking as fraud, creating excess titles (8:31–9:50).

Kinsella counters that with disclosure, it’s not fraud but economically unviable due to insolvency risks (9:57–12:00).

Discussion of IOUs vs. titles, with Kinsella arguing IOUs can’t function as money substitutes due to varying default risks (10:02–13:11).

André critiques the “unholy union” of banks, corporations, and government, enabling unsustainable lending (13:38–14:36).

Segment 3: Loan Contracts and Risk Allocation (29:43–44:04)

Description: André connects usury and fractional-reserve banking, arguing banks profit by shifting risk to depositors and borrowers. He questions the validity of contracts that offload risk excessively, suggesting they resemble slavery contracts. Kinsella insists that in a free market, contracts are valid if disclosed and don’t violate rights, using a hammer-screwdriver exchange example to illustrate title transfers. They explore inalienability, with André arguing that contracts impoverishing borrowers could violate libertarian principles.

Summary:

André sees banks as risk-free intermediaries, profiting while offloading risk (29:34–29:48).

Kinsella defends loan contracts as title transfers, valid with disclosure, using a barter example (31:16–33:24).

André argues excessive risk-shifting to borrowers could lead to enslavement, citing inalienability (42:20–43:07).

Kinsella acknowledges potential limits but distinguishes them from usury or risk-shifting issues (42:36–44:04).

Segment 4: Free Market Banking and Inalienability (44:05–1:00:41)

Description: The discussion moves to a hypothetical free market with gold or Bitcoin as money. Kinsella outlines two banking functions: warehousing (safekeeping) and credit intermediation (lending). André agrees warehousing is legitimate but questions credit intermediation’s moral hazards, where banks push risk onto others. They debate negotiability and checks, with Kinsella suggesting the state’s legal system distorts commercial practices to support fractional-reserve banking. André emphasizes inalienability as a limit on exploitative contracts.

Summary:

Kinsella proposes warehousing and credit intermediation as distinct free market functions (46:00–51:37).

André critiques credit intermediation for enabling banks to avoid risk (52:08–52:53).

Discussion of negotiability and checks highlights state-backed distortions in banking (57:56–1:00:41).

André reiterates inalienability as a safeguard against exploitative contracts (44:36–45:04).

Segment 5: Corporations, Limited Liability, and Systemic Issues (1:00:42–1:39:34)

Description: The conversation broadens to corporations and limited liability, with André arguing they exacerbate risk-shifting, drawing parallels to banking. Kinsella references discussions with Jeff Barr (KOL414, KOL418), noting some libertarians oppose corporations for separating ownership from liability. André sees this as a logical extension of his critique, advocating for a fair system without such structures. They address linguistic and cultural barriers in Brazilian libertarianism, with André calling for mainstreaming these discussions. The episode ends with plans to follow up and share resources.

Summary:

André links banking issues to corporations, arguing limited liability enables risk avoidance (1:21:23–1:22:42).

Kinsella cites Barr and others’ critiques of corporations, defending their contractual basis (1:20:43–1:23:06).

André highlights Brazil’s linguistic barriers, limiting access to nuanced libertarian ideas (1:35:35–1:36:41).

Plans for further discussion, with Kinsella offering to connect André with Hapa and share resources (1:37:30–1:39:34).