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March 6, 2013 - Freedomain Radio - Stefan Molyneux
01:07:03
2340 Intellectual Property From First Principles: A Freedomain Radio Listener Conversation

Stefan Molyneux, Host of Freedomain Radio, discusses Intellectual Property with a listener.

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You were saying that you're an ANCAP and a musician.
You came through Rothbard, and I think you were thanking me for my tireless work, which sometimes doesn't feel tireless, but I... Oh, so very good.
And so, you know, it just appeared that the consensus among libertarians was anti-IP, and since I had such...
I started reading into it a little bit and sort of expected the same kind of rigorous, philosophical, first principles, upward kind of approach on IP. And it just doesn't seem like that's what has happened.
And so I started Trying to analyze intellectual property.
And I find that, at least as far as I've gotten, that it appears to behave the same way as physical property.
And so I would love to just kind of get your input on what you think the arguments are against and just sort of share with you kind of where I'm coming from.
Right.
Well, it certainly shares some characteristics of physical property, but not every characteristic of physical property.
So, I mean, of course, some of the characteristics it shares is that intellectual property does not exist in a state of nature.
I think we can, you know, Bohemian Rhapsody did not fall from the patterns of the raindrops under Freddie Mercury's piano, right?
And so, for sure, the property is created.
The entity, the song, the The lyrics, the novel is created through the efforts of an individual, a group of individuals, so it doesn't exist in a state of nature like a tree does, which you harvest.
So it is certainly created, and in that I think it shares the characteristics of property, but it's not...
It's not a lot more than that.
And I sort of tell you why.
So, you know, the old argument that if I take your car, well, you're out of one car, right?
But if I copy your song, you still have the song, right?
So it's sort of like, instead of me stealing a car, it's like I have a car-ray duplication ray gun, you know?
And I sort of go down the street, and I point it at a Porsche, and zippo, zappo, kabowie, I have a Porsche that I can drive away in.
But the person who has the Porsche still has the original car.
So it's not a zero-sum game.
in that sense.
The other thing too is that copyright and patents and all that tend to be limited in time whereas Other forms of property are not limited in time, right?
So, if I build a house, then it doesn't expire, right?
The property rights to my house, they don't expire after a certain amount of time.
I mean, if I build my house, let's say I build some castle, because I'm just a really workaholic kind of Protestant builder guy, I build a castle, Well, I can leave that castle to my children, my children can leave it to their children, and they can have the wealth of that castle passed down from generation to generation pretty much until the end of time.
But, of course, there were concerns when copyrights and IP and other kinds of patent laws were first put into place that people We're going to just, you know, some guy writes happy birthday and, you know, a thousand years later his children's children's whatever are still making a fortune off it.
And that was felt to be somewhat unjust and therefore there's an expiration date for that kind of property.
And the other thing that I would say about intellectual property other than the fact that...
It expires and it's copyable.
It's very easily copyable.
It's that it's really kind of nebulous.
So, I mean, some of it, you know, you write a song and, okay, that's your song or whatever, but what if I come up with a really cool catchphrase?
Can I copyright that?
What if I come up with a really great word?
You know, like you think of Stephen Colbert's truthiness.
It's a pretty great word, like stuff that just seems true and appears to be true to people who already preconceivedly believe in those notions.
Can he copyright that or can he control that so that other people have to pay him a buck?
You know, everyone makes that joke, you know, I had a nickel for every time, blah, blah, blah.
Or fashion, or style, or, you know, wearing army pants when you're not in the army and stuff like that.
I mean, does that count?
So it's really kind of nebulous.
And that's, you know, if you steal my iPad, well, you've stolen my iPad, it's pretty clear.
But if you write a song kind of like my song...
You know, it's really shades of grey all over the place.
And so it's not...
I mean, I certainly sympathize.
I mean, I'm a content creator myself, and I create all this content and arguments and so on.
And so I sympathize, and I certainly think that it's good for creators to get paid.
Oh, we've got to eat, right?
And without creators, life is a whole lot of dull tax farm animal nonsense.
But I wouldn't say that it's exactly the same as physical property.
But those are sort of just a couple of introductory thoughts, but tell me what you think.
Okay, so you've made a series of points.
One, it doesn't exist in nature.
The second one, I guess we could call it not rivalrous.
If I copy your bicycle, you still have your bicycle.
Like the Nina Paley song.
I don't know if you've heard that.
Her very catchy song, Copying is Not Theft.
Very cute.
Things are easily copyable.
That copyright expires where physical property doesn't.
And what you might call nebulous borders that I'm not, you know, sometimes it's difficult to tell where the boundaries are around intellectual property.
So the first one, it doesn't exist.
So one of the guys, sorry to interrupt, but one of the guys from Men at Work, I think the base, did he die recently and he was still going through some lawsuit from one of their hits from the 80s?
I mean, it's really...
There's all kinds of great war stories of copyright disputes.
Who's the guy from Creedence Clearwater?
Fogarty actually got sued for plagiarizing himself.
That was a great case.
We can talk about some of those war stories.
And the court actually held that you could be held liable for plagiarizing yourself.
Ultimately, they found That he did not in that particular case, but the court did find that it was possible to plagiarize yourself.
He had a publishing deal with a previous publisher, and he wrote a bunch of songs under that deal.
Then he got a record deal with a different company and formed Creedence Clearwater and wrote The Old Man Down the Road.
And this previous publisher thought that one of his early songs was significantly similar to To old man down the road, and yeah, brought suit for him plagiarizing himself.
Yeah, and so, you know, can you copyright a plot?
Can you copyright a word?
Can you copyright, you know, vague characteristics of a particular character?
You know, the grumpy old man, the innocent-eyed young ingenue, you know, all that kind of stuff.
And now, these are practical considerations of implementation.
And so, you know, if intellectual property is valid, then that shit just has to be worked out, you know?
I mean, so it doesn't, you know, saying that it's complicated and nebulous doesn't mean that it's not valid, right?
I think it's just an indicator that it may not be valid.
You know, like my iPad and your iPad, not that complicated, right?
And so, kind of easy to implement.
And yet, if we start looking at the nebulous areas, just because something is nebulous and complicated doesn't mean that it's invalid or morally wrong or morally right.
It just means that it may be an indication of a problem.
Right.
The way we step through these doesn't exist in nature.
Well, I mean, that's absolutely true of iPads and automobiles and bicycles and all of the manufactured goods that we have.
That was my argument with you, that it is property.
That's one thing it does share with property, that somebody's mixed their labor into something.
And produce something.
So I'm with you on that.
That's, I think, the argument for...
Oh, great.
Okay.
So I agree with you.
And then, so the second point, and the point so often made by that other middle-aged, bald-headed libertarian...
Are you there?
Did I lose you?
Oh.
No, I'm here.
I guess Michael just logged on.
That other stuff Stefan Kinsella makes is that intellectual property is not rivalrous.
And this is one of the things that kind of raised my eyebrow in reading his book.
Was that he actually never gets around to getting a real clear definition of rivalrous.
I mean, the argument is, if I steal your bicycle, you don't have a bicycle, but if I copy your bicycle, you still have yours.
Well, yes, sorry, but let me just reinforce your point, I think, is that if you were going to sell a bicycle to someone for $100, And they copy the bicycle instead, then you are out $100, right?
If you could find a way that the person had to pay you for the bicycle rather than have his magical bicycle replication ray, then you'd be up $100.
So if somebody does have the right to copy your bicycle, you are potentially at least out $100, right?
So that could be argued as a form of theft.
Is that sort of where you might be coming from?
No, not really.
I mean, there is not really a magical bicycle duplication ray.
And I don't think anybody in an ex-ante sense has any right to sell something or any right to be paid for something.
I mean, if somebody wants to buy it and I want to sell it, then we agree to contract.
No, what I was going to say...
Let's look at that formulation that's put forward.
Basically saying, okay, if X is something useful, and X can be copied into Y, and if a second person can use Y, and it doesn't interfere with the first person's use of X, then therefore X and Y cannot be property.
That is the way the argument would be formulized as a rule.
And so if you apply that rule to physical property, you say, okay, I have a bicycle.
Bicycles can, in fact, be copied.
The way that they're copied is with a bicycle factory.
That's how physical goods are mass produced.
And, of course, the factory has to be brought into existence first.
That's a capital good.
But you can, in fact, copy bicycles.
And the fact that bicycles can be copied, does that mean that they're not rightful property?
No, it doesn't at all.
It means that they can be copied.
So I just don't understand.
That just seems like such a non-rigorous look at that problem that it's just sort of baffling to me.
Yeah.
Right?
Okay, but I mean, I understand what you're...
Look, look, sorry, I understand where you're coming from, and it's a really, it's a good argument.
But I do think that we have to look at degrees of difficulty in the implementation of property.
So, for instance, if you...
I don't know.
Come into my house.
You knock on my door and it turns out that you're selling something I don't want.
I obviously don't get to charge you really with trespassing because it's pretty innocuous use of my time.
If you come to a party of mine and you breathe in a whole bunch of air and then you leave, right?
So you've taken in oxygen.
You left out carbon dioxide and, you know, whatever chip dust you're belching up.
Do I get to say, well, you've stolen my air?
Well, no.
I mean, so, although the air is, you know, I guess, in my house and it's not a part of my property or whatever.
And so, I think when it comes to implementation, For me to earn the money to buy an iPad and then for you to steal it, I mean, that's a big hassle.
It's a big problem.
All my data's on there and all that kind of stuff, right?
So that's a big hassle.
It's a big problem.
But you walk out of my house with dust on your jacket.
Clearly, you've taken some of my property, but I don't get to sue you for that because it's just so inconsequential.
So making a factory and copying a bicycle requires far more resources if you just want a bike, right?
It requires far more resources than you would ever get at a value of just having a bike.
It's just cheaper to go and buy a bike, right?
Whereas, you know, whatever it is, whatever you do, you rip or you click or you torrent or whatever it is, getting a song is...
Inconsequential in terms of its effort and the energy required.
I agree with you that you've mixed up the capital good with the consumer good and that's a point that I'd really like to make that I think is missing from the whole conversation because one very interesting property or characteristic that IP has is that once you have a digital file say a song file It functions
as both a capital good and a consumer good depending on how it's being used.
If you're just listening to the song, the use and enjoyment of the entertainment is the value that you're getting out of it.
In that case, it's like a bicycle.
But if you are copying and making a new copy of that digital file, it's functioning as a capital good.
Sorry, I don't get the distinction.
I mean, if I'm going to copy it to listen to it, whereas if I copy it to do what?
You mean to make another CD? There's two things that you can do with that digital file.
You can listen to it, or you can copy it.
And when you're listening to it, it is acting as a consumer good, like riding a bicycle.
When you're copying it, it's acting like a little factory.
It's a capital good.
And just like a factory, of course, that productive capacity...
Sorry, I'm not disagreeing with you.
I just still don't follow.
If you can give me...
Just step me through this.
Okay, so if I listen to it, like you mean if I listen to it streaming on YouTube or something, don't download it?
Let me take it more in chronological order.
We'll do a side-by-side comparison between a bicycle and a song file.
In the beginning, there's no bicycle and there's no song.
And so what happens first is that a person creates productive capacity.
He builds a factory and he invests the time and effort and the physical resources and the time and whatever it takes to make a factory.
And across the street, a guy Invest the time and effort to make a song.
And this is both the authorship and you could also talk about the recording of the song.
Both of those take time and effort and physical resources.
I would go even further, though, and to say that, you know, to become a really competent musician takes thousands of hours, right?
Sure.
To slap together a bicycle, you can hire someone for, you know, Indonesia, 40 cents an hour or whatever, right?
But to create and write a song takes a long time.
Right, but before you have the factory, you cannot pay a guy 40 cents an hour to build the bike.
That's after.
That's afterwards.
That's going to come in the duplication part.
That's the other part of it.
Okay, so step one is creating the capital good, the bike factory or the original song file.
Before that happens, there is no ability to copy.
There's no capital good.
There's no productive capacity.
So now you've brought this into existence.
Now, relatively cheaply, you can stream bicycles off of the assembly line far more cheaply than you could trying to build them one at a time, which, of course, is why they mass produce things.
And once you have this digital song file, you can make copies from that, okay?
So making copies of a digital song file is like making copies of a bicycle, okay?
So the use, and again, for something to be homesteaded, you have to transform it in a way that makes it useful.
The use and the purpose of a bicycle factory is to make a profit, is to create bikes to sell to customers.
Just before we get to that though, and I'm not disagreeing, I just want to make sure I really follow the argument.
Let's say I look at a bike my neighbor has, and I want to copy it.
Are you saying that I build a factory?
Yeah, well, sure.
But that would never happen.
Well, okay.
No, I mean, that would never happen because it would cost me tens of thousands of times more to build a factory than it would to simply buy the bike, right?
Right.
Just like it would – you could buy the bike or you could make your own out of scrap.
Whatever.
No, no.
But seriously, I mean, we need to deal in the realm of possibility, not pure hypotheticals, right?
I can't – like nobody is going to build a bike factory because they want a bike, right?
Well, okay.
All right.
I mean, we can go forward with the theoretical argument as long as we understand that this would never ever happen economically, right?
What could happen is somebody could break into the bike factory and run the assembly line to make their own bike.
Okay.
I mean, okay, but you understand that's not going to happen either, because a bike is going to cost you 100 or 200 bucks, becoming a break-and-enter artist, getting arrested.
I mean, this is like, it's not worth it, right?
People just go and buy a bike.
They don't build a factory.
They don't go and steal.
I mean, they will steal the bike, of course, right?
But they won't build a factory, and they won't do that.
And this is sort of what I'm saying is a difference, right?
Whereas, you know, people will copy songs...
You know, on a USB, it's one second and they're done, right?
And so the time and energy to go out and acquire the song, sometimes even legally, although I like to cite MP3 Fiesta, which is a pretty good way of getting music, but the effort to go out, you know, drive down to the, what's that song says, the late night record shop on a Tuesday night, the effort to go down and get the song and buy the CD and get home and unwrap it, put it in and whatever, right?
As opposed to, you know, click download.
Right.
People will do that, but they will never build a factory to copy a bike, right?
Right.
Well, but that's really the whole point, is that until that song exists, that productive, that easy productive capacity doesn't exist, okay?
Right?
Until you have the song, you don't have that productive capacity.
Just like until you have that factory, you don't have that productive capacity.
Okay, so...
Okay.
All right.
So, you know, I guess you're saying that the fact that it's easier to copy a song than it is to break into a bike factory...
It means that the song cannot be property.
In other words, if the use of the productive capacity created by another crosses a threshold of ease, it ceases to be property?
Is that the argument?
No, no.
I'm just looking at your argument, right?
We can discuss that or not, but I mean...
I'm just looking at your argument where you say that somebody might want a bike and therefore build a bike factory, and that's just not a realistic argument.
I mean, yes, theoretically, but it's never going to happen in the real world, and I think we want to be pragmatic about this stuff.
People build bike factories in the real world.
Of course they do.
No, but an individual doesn't build a bike factory because he wants one bike, right?
Right.
And I guess a person doesn't write and record a song simply because he only wants one copy of that song, okay?
Right.
So I think an analogy would be to say, well, I like this song so much that I'm going to hire a band to record it for me.
Okay.
I mean, that wouldn't happen in the world, right?
I mean, because people will just, if they like the song, they'll just listen to it on YouTube or, I don't know, get it from somewhere or whatever and listen to it that way.
So I'm not saying it doesn't make...
I mean, this is not an argument for or against whether it's property or not.
It's just that we are dealing with a different kind of animal when it comes to this kind of copying in a way like that.
And the other thing, too, of course, is that if you have...
If I have a bike, I'm not telling you what to do with your property, right?
But if I write a poem that's really great, and I have a right to own the copyright or the IP over the poem, you're not allowed to write it down and show it to people, right?
So the difference is that If I have a bike and you have a bike, we're not telling each other what to do with our bikes.
But if I have intellectual property, I'm telling you what you can and can't do with your property.
I mean, that's kind of a different thing.
Again, it's not an Ironclad argument one way or the other, at least in my opinion.
But it is a difference, right?
So I'm telling you, you can't take pen to paper and write down my poem.
You can't, you know, take your guitar and go and play my song.
Okay.
So let's look at this.
On the subway or whatever.
So I'm just saying that there's an extension where I'm saying what you can and cannot do with your property, what everyone can and cannot do with their own legally acquired and justly owned property, all over the world forever, or, you know, as long as the copyright lasts or whatever, you can't put your fingers like this on this guitar because you can't put your fingers like this on this guitar because I did it I'm telling you what you can do, not just with your property, but with your body.
And that's quite a different thing than owning property which does not tell...
Like, if I have an iPad, I'm not telling you what you can and can't do with your iPad.
If I have a bike, I'm not telling you what you can and can't do with your bike or your body or anything else like that, other than steal my bike or whatever.
But if I have intellectual property, I'm telling the entire, like, 6 billion people all over the world, you cannot...
Put your fingers this way on the guitar.
You cannot scribble your pen on your paper in this particular way.
Right.
Okay, so right, and that is definitely one of the arguments that's put forward.
So if I were to try to formalize that as a rule, it would look something like this.
If the enforcement of person A's alleged property rights in X imposes any restrictions on the physical movement of person B or any restriction on person B's use of his own rightful property, then X cannot be property.
Right?
Well, assuming that there's no initiation of the use of force, then yeah.
Okay.
So X, let's try that then.
So X equals land with a house.
Person A has land with a house on it.
Person A's alleged property rights in her house imposes a restriction on the physical movement of Person B because Person B is not allowed inside the house.
Sorry, you changed your definition there.
Because I said their own legally acquired property.
You're telling people what to do with their own bodies and their own legally acquired property, right?
If I have the pen and the paper and I bought the guitar and whatever it is, right?
So you're suddenly saying, well, now you can't come into my property, but it's not your property, right?
So whoever you're restricting by not having them come into your property is different than saying to people, the pen and paper that you legally acquired are the guitar and fingers that you own.
I'm telling everyone in the world what they can and cannot do with their own property, so you can't suddenly switch in trespassing on my property.
Because that wouldn't be a legally acquired property.
Does that make sense?
Okay.
Person A's alleged property rights in her own physical body imposes a restriction on B's use of his own...
Okay, let's say...
Let's say...
X is person A's own physical body, right?
Person A's alleged property rights in her own physical body imposes a restriction on B's use of his own gun and bullets because person B is prohibited from shooting person A. Therefore, one's own physical body is not self-owned.
Well, that doesn't make sense.
Again, if you apply that rule, all property, Steph, implies restrictions on the use of other people.
You can legally acquire your own gun and your own bullets and you don't have the right to point it at me and shoot.
And even though it's your own fingers and your own physical body...
Seriously, I just want to make sure I'm understanding this.
Are you saying that if I play the opening chords to smoke on the water in a hut in Timbuktu, that this is somehow on the same moral plane as shooting someone in the head?
I would say that it would be on the same moral plane as...
Yeah, you brought up the bullet and the gun.
You know, I mean, not me, right?
I mean, once you start pulling out the bullet and the gun, then we're going to get into some very meaty...
And this is good.
I'm glad you're doing this.
Not because of winning or losing.
It's just that if you're going to go there, then you are...
I mean, I don't want to get...
I've got the whole book on ethics about UPP and all of that, so I don't want to go into the arguments about, you know, violence and the initiation of force and so on.
But you realize that you are going to the place where if I play...
The opening core is a smoke on the water and a hut in Timbuktu.
That, for you, is on a similar or not dissimilar moral plane to walking up to some innocent person and shooting them in the head.
Well, I would say it is perfectly analogous to walking onto somebody's property.
In fact, what I've done, just to sort of round it out a little...
No, but he's not walking into anyone's property.
Well, let me explain, okay?
Because what I've done that's, I think, original is I've conceived of this doctrine of intellectual space.
Intellectual space, matter, property, and objects.
Intellectual space is a theoretical array of unique locations.
It just gives a visio-spatial way to conceive of intellectual property so that we can conceive of these individual locations in intellectual space.
When you bring a creative work into existence, it is very much like transforming physical property in a way that makes it useful.
That is the homesteading principle.
I think by keeping that in mind, we can have this visual reference that That intellectual property violations of playing my song,
performing my song, making money off of my song, somehow, is very much like a trespass, because my creation of that original song It created this productive capacity, this ability to easily copy it and to easily replicate it like a factory.
And I think it's very much like trespassing, only you're not trespassing on physical space the way if you broke into my house or into my factory and used it, but you're trespassing in intellectual space on my intellectual object that I homesteaded.
So it's on that moral plane.
I'd say it is the moral equivalent of breaking into somebody's factory and using their productive capacity to make your own object.
So yeah, it's like that.
So not quite murder.
So a bar band that plays someone else's songs should go to jail.
If the songwriter wants that.
Well, I mean, that's an interesting thing that you bring up because, you know, it's often been said that in the – and this might seem like a digression, but I think it's going to address your point.
It's been said that in the free society, socialist-minded people will be free to try their socialist experiments.
If they want to somehow acquire some property or even collaborate virtually without any property, but they want to agree to share their wealth and share their food and share their resources, socialists would be free to do that.
In an ANCAP society.
But the reverse is not true.
If you have a socialist society, you and I are not free to have a free market.
So let's look at copyright.
In a world with copyright, Those who wish to give their song or donate it to the commons are free to absolutely do that.
No, no, no.
I said if the songwriter wants it.
Right.
In other words, if the songwriter says, you can't play my songs, then a bar band would get thrown into it.
Right.
But what I'm saying is that...
Whereas in a world without copyright, people who wish to enforce copyright have no ability to do that.
And so my point is to point out...
Sorry, sorry.
How do people who want to enforce copyright have no capacity or ability to do that in a free society?
No.
I believe that intellectual property would exist in a free society.
Let me try to go through this again.
In a world with copyright, Okay, which I believe a free society will support copyright because it is a form of property, and the free society is completely based on the respect for self-ownership, non-aggression, and the respect for property rights, justly acquired, homesteaded, or produced property, physical or intellectual.
And so in a world with copyright, Those who wish to give away their song are free to do that, just like socialists are free.
Yeah, no, I got it.
I mean, of course, let's skip past that point.
Of course, if you want to give away your iPad, it's not stealing.
I got it.
Okay, but my point, just to put a cap on it, is to say, see, copyright behaves like a free society, and the absence of copyright behaves like socialism.
Well, I mean, all you're basically saying is that you can get beaten up, you don't have to press charges.
So someone can break the law and copy your song, but you just may say, I don't care.
And you may even say that ahead of time, come beat me up and I won't press charges or whatever.
No, no, no.
People can violate the moral standard or you can voluntarily give stuff away or whatever.
But for those who want to enforce it, the mechanism wouldn't have to necessarily be there, right?
Yes.
Oh, absolutely.
But of course, you couldn't have a way of preventing copyright in a free society because there'd be no state, right?
You couldn't have a ban on it, right?
Well, I think it could be enforced the same way that physical property rights are enforced.
It's the same idea.
You know, so yeah, we're going to have to have DROs.
But it would be a democratic thing, right?
I mean, the vast majority of people, with the exception of a few sociopathic thieves in a free society, the vast majority of people would want their property to be protected.
And therefore, all of those mechanisms would be in place.
The democracy that is, and I don't mean political democracy, but economic democracy, that would be inherent in a free society's collective decisions about ethics, would be very interesting with regards to copyright.
And of course, it's a complex issue.
I mean, reality is, everybody wants stuff for free, naturally.
We're mammals.
We like to get lots of stuff without a lot of effort, right?
Everybody wants stuff for free.
But at the same time, they want people to make new stuff, right?
I mean, this is like, we all want free stuff, but we all want new stuff.
And if everybody takes free stuff, nobody gets any new stuff, right?
So if nobody pays any musicians, then musicians will, I don't know, what do you call a drummer without a girlfriend?
Homeless.
Right?
So if nobody pays musicians, will there be any music?
Well, there'll be hobbyists, I guess, right?
There'll be, I mean, my neighbors make music and some pretty fine bluegrass stuff, too.
So So there will still be music, but it'd be more hobby-based and that kind of stuff.
So, you know, would there be, I don't know, the Beatles worth hundreds of millions of dollars?
I don't know.
Probably not.
I mean, that seems like quite a lot to pay people who write good songs and sing well.
But, you know, my value, if their value doesn't mean anything, because it's all open to the free market.
But if you want to make the case for copyright, I don't think you'll have a tough time making a case for let's not have people murdering each other.
Because, I mean, the vast majority of people, you know, outside of war propaganda and the army and all that, they don't want lots of murderers running around, so society will organize itself along those lines and resources will flow to whatever is most productive in minimizing or preventing murder.
When it comes to copyright, though, I mean, obviously you could have a form of contract, right?
So you could say, look, if you buy my book, you are basically renting it indefinitely.
You do not have the right to resell it.
And I'm going to put a little GPS marker in this book, and if I ever find that it's out there in the market, then you are the guy I'm going to go and ding, right?
So you can buy it.
I mean, the same way you lease a car.
You have to give it back or whatever, right?
So you could put something in like that, and you could see how that would float in the free market.
And there'd be other authors who would say, yeah, you know, hand it around, leave it at the beach, I don't care, sell it, buy it, I mean, whatever, right?
There'd be other people who'd say, like I do, Take everything I've got for free and donate whatever you think it's worth at the end.
And so there would be a wide variety of models that would be competing for the right balance between incentive and recompense and the desire for artists to be consumed, right?
I mean, every artist would like to get a million dollars a painting, but that would mean there'd be far fewer paintings of Velvet Elvis in motel rooms.
So...
So, I mean, but there would be nobody who would forcibly prevent whatever contract you wanted to impose, but there would be no central agency that an artist would go to and say, somebody broke the law and you must go and send people to go and, you know, with guns and...
Because, I mean, that's what it comes down to, right?
I mean, if a bar band or some music teacher, you know, says, I will teach you the opening cause of Smoke on the Water...
Then it's like, dude, you know, people are going to show up with guns, and if this guy resists, they're going to have to open fire.
And I mean, that's quite a lot.
That's pretty intense for that kind of stuff.
And so I don't know.
I mean, I have no idea how any of this stuff would work.
That's the beautiful thing about advocating freedom, is you don't have to have any answers.
If you advocate statism, you've got to have all these answers, which all turn out to be bullshit.
But I don't know how it will work.
I... I would love to get paid, you know, I asked for 50 cents a podcast.
I'd love to get paid 50 cents a podcast.
I'd be making a million dollars a month.
But the reality is that if I, you know, if I tried to charge 50 cents a podcast, I mean, I just don't think that would, I don't think that would really work.
And I prefer to let the audience make their own decisions about what things are worth and to remind them of that value.
And that's the way I do it.
Other people, yeah, they can have a contract on their website, click to agree, and it It records what they've done and then they can tag their files in some mysterious manner and hope that nobody figures out how to record from some speakers or something like that.
But it is something that is impossible to guess how it's going to work, but there would be no agency that would forbid it, of course.
Right, and I completely agree with you that contract is a beautiful thing.
Contract is the backbone of the free society.
It's really just people making agreements, agreements to exchange and to do things.
But what you have to understand is that one can only contract with that which is property.
I can agree to sell you my car if it's my car, but I can't agree to sell you that guy's car over there because it's not my property.
Sorry, with the caveat that if you sell me his car, he still has his car kind of thing, right?
That's the weird thing about this stuff, right?
I'm saying that I think you correctly wonder about how contracting of intellectual property will work in a free society, but I think before you even start wondering that, you have to go back to the first principles, and the first principle of a contract That is property.
You cannot contract with that which is not property.
And if intellectual property is not property, if intellectual creations are not property, then you cannot contract for them.
There's simply no basis to do that.
I'm back.
But intellectual property is not property.
That's the whole point, right?
I mean, it's not property in a physical sense, right?
Well...
It's a positive right to control other people's use of their own property.
That's all it is.
Because it's not a thing, right?
Well, that's begging the question, though.
I mean, of course, if we say, you know, property must be physical to be property...
Therefore, intellectual creations cannot be property.
Well, yeah.
And, of course, we can use that same kind of assumption of the conclusion to prove...
No, no, sorry.
I appreciate that, and that's a great point.
And I know that that's just like saying, well, I said it, and therefore that's the end of the debate, which, of course, is not what I mean.
What I mean is that there's two forms of...
Intellectual property, right?
There is the idea or the concept or the abstraction or whatever you want to call it.
And then there's the physical thing, which is the transmission of that thing, right?
I mean, we're not psychic, we don't do Vulcan mind melds, so I can't hear your song unless it's in some physical matter, whether that's bits on a hard drive or a PC or something like that.
Whether it's sound waves, whether it's a book, a CD, right?
So it has to be transmitted into physical property in order for it to be contracted, right?
So if I write a book and then I print a book and then I go around to people saying, I will sell you this book, you've got to sign this contract that says you're never going to resell the book and that's the condition of sale and blah blah blah, then there's two things at work, right?
One is the book, the physical manifestation of the intellectual idea, and the other is the intellectual idea itself, right?
Yeah, so you're making, I guess, what I could call the container argument.
And it's probably true that intellectual property always requires some kind of physical container to deliver it and to make it useful to a consumer.
And so I guess they're, again, breaking that down into a rule.
You're saying that if If X requires a physical container to be useful to people, then X cannot be property.
So let's...
No, no, what I'm saying is that we need to remember we're talking about two things.
So you can contract for a book, right?
Sell the book and say you all can't resell it or whatever it is, right?
But...
There is no contract between you, who writes Smoke on the Water, and the guy in the Tibetan foothills in a hut playing Smoke on the Water.
So you can contract with someone that you're selling to, and they can voluntarily enter into that kind of contract, but there's a positive universal moral and legal and coercive obligation to prevent everyone in the world from doing something with their own property for people with whom you have no contract.
Now, the fact that there's no contract doesn't mean that there's no legally obliging thing.
I mean, I don't write contracts with my neighbors saying I'm not going to strangle you in my sleep.
I mean, I'm not saying that, but I'm just saying that there's two different aspects of it.
I think you can reasonably contract the book of the story, but I don't, it's not to me as easy to say, but the idea of the story.
Not the physical manifestation that you can contract on, but the idea of the story is something that you can also own universally in perpetuity across the world.
Well, I mean, I can appreciate that assertion, but I think you could contract with every person that uses the intellectual creation.
If I write a song and I create a digital song file, I think there can be like a terms of use or whatever where people agree That they are not or they're allowed to copy it under this circumstance or that or they cannot copy it.
And I think you can contract with every user the same way people contract with the users of software and websites.
I'm sure that the market in its endless ingenuity We'll figure out how to do that in a free society.
Well, sorry, but if we're going to talk software, that's a different thing, right?
Because software, again, there's two components, right?
There is the concept and the idea and the general user interface and so on.
And then there is the actual machine code, right?
There's the actual compiled code or whatever the source code that is, right?
So those two things are different things, right?
As you know, Apple has a patent on rounded edges on a phone.
Right.
Well, let's right there draw a distinction between patents and copyright.
As you may know, Rothbard supported copyrights and opposed patents.
Those are two actually really different things.
A copyright applies to a finished work.
You have to make the song.
You have to write the book.
You have to create the film.
Patents apply to a method of doing something.
I'm going to describe how you could make a better mousetrap, or I could theoretically try to patent a method for writing a song.
A method for writing a song is something different than a finished song.
I believe that a finished work is ownable because it is an instance of homesteading.
You have actually taken previously undeveloped intellectual matter, transformed it in a way that makes it useful to other people.
Describing a method of how you might How you might be able to create something.
I don't buy that as intellectual property.
So I think we have to make a real clear distinction between patents and copyrights.
There's trademarks and reputation and defamation and there's all these other things that have come in and I don't think I endorse any of that.
And except to the extent that patent can be like a copyright, there can be drawings and so forth that is like a finished work, that is part of a patent, but I would only endorse patent to the exact extent that it's exactly like a copyright.
So I think it would be important to draw that distinction.
But to get back to the other argument that you were...
Well, sorry, but there is not such a clear distinction between the two, right?
Because if I take the song yesterday and I take it a third up, I don't make it my own, right?
Right.
Right, so it's not like there's this clear delineation in copyright that there isn't in patents, right?
I was just saying they're really two different things.
A copyright applies to a finished work.
A patent applies to the… No, sorry.
Copyright applies to a finished work and a blurry outline of things that could be argued to be similar to that finished work.
Oh, okay.
Well, that's okay.
I see.
You're getting to the fuzzy, what I call the fuzzy boundaries problem.
Okay, so that's...
Right.
So, I mean, the round corners thing could apply to a whole bunch of things, but a song that you've written could apply to, you know, I mean, every, you know, transpose it up and down, shift it around a bit, speed it up a bit, slow it down, take it into a reggae style.
I mean, it covers a huge amount of potential creativity, right?
Right.
Absolutely.
And so again, I totally agree that there are ambiguous, you know, borders that have to be drawn around things.
To say, you know, can I copyright the single word, the?
Well, no.
Nobody thinks you can.
Supporters of IP all agree that a complete novel is copyrightable, and a single word or a single small phrase is not.
Well, where do we...
No, no, but you've got to be precise here, right?
A single novel is not at all copyrightable if it, according to some people's judgment, floats in the fuzzy area around any of the other millions of novels that may be copyrighted.
That's right.
Right, so a finished novel is not copyrightable unless it's sufficiently different from all the other millions of novels that a jury is not going to support any claim of copyright against it.
Right.
And that's absolutely true.
And I fully admit that there are subjective, arbitrary decisions that have to be made.
I would simply point out that you have precisely the same problem with physical property.
But think about homesteading a piece of land.
You know, I'm going to plant 100 acres of tomatoes.
I'm also going to build myself a farmhouse.
And I'm going to set my farmhouse back some distance from my field.
Well, how far back?
You know, how much property can I have in between my tomato field and my house?
And plus, I want a backyard backyard.
You know, for my kids to play in, we'll...
No, no, no.
But I think you're, you know, I mean, again, this doesn't break the argument, but I think that to say, sorry to interrupt, but I think to say that it's analogous to homesteading is not.
I mean, you can go and plant 100 acres of tomato plants, but you don't expect that someone from Timbuktu is going to fly over and say, hey, wait a minute, I planted my plants almost exactly the same distance apart, so now you owe me half your crop.
That doesn't happen, right?
So even unknowingly copying other people can't let you liable in terms of homesteading.
And there's not fuzzy boundaries.
I mean, there's my little plot of land, and there's a fence, and then there's my neighbor's little plot of land.
And then there may be some unowned stuff that we go and cultivate our labor into, and there's ways to get the labor figured out, right?
This is a problem in terms of how much you can homestead and what you have to do.
That stuff has been worked out by the common law for literally thousands of years.
That's not a big...
A big problem.
And I know this because I did claim staking and gold panning up in the north after high school.
So we learned all about how to stake out claims.
And you know, it's government, you know, but it comes out of the common law.
So I don't think it's analogous to say it's identical to or exactly the same problem as property.
Well, I think the idea of homesteading is to transform land into something useful.
But what if I say part of my use and enjoyment of my homesteaded land is my unobstructed view from here all the way to that mountain range?
Then you need to buy the land between you and the mountain range to maintain that, right?
Because you don't own the view, right?
Otherwise, I look at the moon and I own it, and you look at the moon and you own it, right?
Right.
But, you know, buy the land.
Buy it from who?
You can't buy it until you know whose property it is.
And I'm saying that there can and are and historically have been All kinds of disputes about where exactly those borders are.
How deep do my property rights and land go?
Can somebody who's building a road tunnel under my property?
At what depth?
If I have a crop going, yeah, I'm using the soil down to some depth, but how deep exactly?
It's arbitrary.
Do you really feel that these I mean, do you really feel that the number of people who are going to encounter that kind of issue in the course of their life is similar to people who might get copyright violations unknowingly through their use of other people's media in the world now?
I mean, I think that the latter is pretty common and the former is extremely rare.
Property border disputes are rare.
I mean, I think they're mostly rare now because the state has basically, you know, sort of arbitrarily drawn these huge lines around every piece of land on earth and basically said that it's property and it defends that with its coercion and its military, as we know.
But I think historically there was probably all Kinds of disputes about exactly where somebody's property ended and somebody else's began.
Absolutely.
I mean, there's an example of this in Jeff Tucker's book, It's a Jetson's World, where he talks about...
The tailgate parties.
Yeah, yeah.
Yeah, I mean, this is something that is spontaneously generated.
And, you know, I mean, as far as property disputes go, I mean...
I almost never see anyone but in line.
I mean, you have a piece of property called your place in line.
How often do you see people?
I mean, it happens once every couple of years.
I see someone do it.
But people respect even that arbitrary and non-enforceable kind of property.
Right.
And I guess if you're getting to sort of a majoritarian kind of an argument where the vast majority of people believe that, well, I don't think we have to look too far back to find...
Cases where vast majorities were just stone evil about what they believed and what they thought was the right way to go.
I'm pretty sure there was a majority in support of slavery 150 years ago, probably.
I don't know that the numbers of people I'm sorry, what happened?
Digital, you know, file copying occurred, you know, and I think it started happening just pretty much in the absence of any kind of moral evaluation, one way or the other.
I mean, it just happened because it was possible.
Hey, I can get songs, you know?
Oh, I don't know about that.
I don't think it happened in the absence of any moral evaluation.
I think it happened because people were pretty fucking sick and tired of record companies.
I think they were like, oh, okay, so an album is like $7.99, and a CD is $20, but a CD costs less to manufacture than the album.
I think that they saw artists like Prince and George Michael being treated unbelievably badly.
I think they saw pretty wretched excess in the recording industry, and I think that they did not have...
I think people have loyalty to the artists, but I think that they viewed the middlemen...
With extreme skepticism, if not downright horror, when it came to hearing the artists' stories, which came out as the digital revolution came along.
I think a lot of artists' stories came out.
And I do remember reading about how artists were treated by record companies.
And, you know, I mean, you listen to Death on Two Legs by Queen.
And, I mean, there were a lot of significantly cesspool-based scumbags in the record industry that seemed to have almost no compunction, screwing artists, screwing consumers.
And I think that they built themselves up such a black bile dam of bad will that when people found an option, they took it.
And people do, I think it was Radiohead who released it, because you know, I'm sure, an album which was Pay What You Can.
I mean, that's the way that I do it.
And I think people do have loyalty to the artists, and they do have a great love of the artists.
I think they just really, really disliked the middleman.
And so I don't know that...
I'm not saying whether it's right or wrong.
I'm just saying I think that was my impression of where people were coming from with some of this stuff.
It's funny you mention it because you might remember when this debate was going hot and heavy 10-12 years ago about what the future of music delivery was going to look like and the record companies were kicking and screaming and fighting digital downloads with everything that they had and it seemed to be a great mystery among everyone.
People were calling them dinosaur industries and they just can't Change with the times and that's why they're losing so much money.
People were just scratching their heads trying to figure out why the record companies were dragging their heels so much.
I think the corruption and the bad treatment that you talk about actually hits the nail on the head in explaining that mystery because if you think about it, the same technology that allows you to make a couple of mouse clicks and get that song instantly onto your iPad or onto your laptop and listen to it, that same technology allows for perfect accountability.
And I would say that perfect accountability is the last thing in the world that the traditional record companies ever, ever wanted.
Sorry, what do you mean?
I want to make sure I understand what you mean by perfect accountability.
Well, like counting the number of records that get sold.
Oh, yeah.
Right, right, right.
Well, the other thing, I mean, they fought it because they have no place in the new world, right?
I mean, they fought it like dinosaurs fight a glacier.
It's like, well, if the glacier comes, we ain't here no more, right?
So, I mean, if you can go directly to the band's website and get their album for five bucks, I mean, what on earth would you conceivably need a record company for?
Why would the band need a record company or promotional executives or whatever?
I mean, when Justin Bieber can put out a YouTube video and become a megastar, I mean, he doesn't need a talent agent.
He doesn't need a promoter.
He doesn't, you know, any of that sort of stuff.
Well, no, sure he does.
And that's the answer.
I mean, you answered your own question.
No, after.
I mean, but to break in.
After he's, right, he needs it then.
And you're right.
It's just like so many businesses, and businesses always have to ask the question, what business are we really in?
Once upon a time, the great railroads were the dominant transportation industry.
And in a few decades, they got almost completely overwhelmed by trucking.
They really, I think, failed to consider that they were in the transportation business.
They thought they were in the railroad business.
And it turned out that people didn't necessarily care so much how they got their thing from point A to point B. They just wanted to get from point A to point B. So they had to ask themselves, what business are we really in?
And the record companies, you know, similar, they, you know, People don't care if they get their music on a piece of plastic or through the ether or on their iPad or however they get it.
They just want it.
They want it to be easy and convenient.
Just by the by, I think things are going the same way with the I mean, I think it's completely obscene that you pay $10 for a paperback and $9.99 for the e-book version.
I think that's obscene.
I mean, somebody types it on a computer, it gets typeset on a computer, it gets, you know, set up, all of it gets set up on the...
The cover gets designed on a computer.
There's nothing physical there whatsoever.
So how on earth could conceivably the same price as something you're going to cut down a bunch of trees and bleach them and dye them and ink them and truck them all over God's green acre?
I mean, it's just mad.
And they are finding price fixing and this kind of stuff.
And what happens, of course, is that people hang on to those profits for the short run and they destroy the middleman.
I mean, if you jump in right in the middle and you say, listen, guys, we know you can get these songs for free, but...
We're going to start selling them for 50 cents a pop, you know.
Three bucks for an album, 50 cents a pop.
I mean, if someone had stepped in, they could have saved the whole thing.
I mean, obviously, right?
It would have been great.
But, I mean, that's not the kind of people who were in that mix.
They were not those kinds of people.
It's the same thing with the book industry.
And people are just going to find ways to get around it.
Because everybody senses a ripoff when they hear it.
And this kind of stuff is going to happen, I think, to the book industry as well.
I mean, this is a bit off topic, but it is...
I mean, I look at these prices and I'm like, are you fucking kidding me?
I mean, are you kidding?
Do you think I'm retarded?
Nobody likes to be treated like an idiot by the people who sells them.
Oh, it's 10 bucks in the bookstore and it's 10 bucks when it's whispered down to my tablet with, you know, the price of three pennies worth of electricity.
I mean, whenever you start to think that your customers are retarded, your industry is doomed.
Like, it's just a matter of time.
It's like the fatal wound is there.
The body may twitch for a while.
And I think what happened was, I think people thought, well, this digital stuff is so incredibly cheap, so why is it so much?
Well, it's so much because people wanted their overhead, the same overhead they had.
had them and they fought the same thing.
They fought the VCR, they fought the tape deck.
I mean, the same sort of thing, right?
Because everybody adapts to a particular environment and then resists the changes to that environment, unless you're on the internet, in which case you change it all the time.
But so, sorry, I just wanted to point, I mean, the general, I think we're on the same page that I think there is a moral evaluation.
And I think the solution to this...
And look, I want to get paid.
You want to get paid.
Because just for the message out there, and I don't mean to speak for you, but just let me have a tiny little rant here and I'll let you have the last word, of course.
But I mean, it is really, really, really fucking hard to make stuff.
Yeah.
I mean, it really, it is unbelievably hard.
It is brain-bendingly hard.
I can't remember what writer said it, but he said, oh, writing is easy.
You just stare at a blank page until you start sweating blood from your forehead.
Something like that.
I mean, I'm sure you get up and you're like, I have no inspiration.
It's like trying to get that last piece of toothpaste out of the tube that's just way past expiration.
And it's really hard.
You have to, I mean, you must have started studying music when you were pretty young.
You've probably got, you know, that...
That Malcolm Gladwell 10,000 hours of expertise in.
I mean, it's...
I've got, like...
I think I calculated a couple of years ago, like over 35,000 hours invested in philosophy and communication.
I mean, it's a huge...
And people see this, oh, it's a good podcast.
It's like there's a tiny tip of the iceberg of all the peddling that's going madly on underneath.
And so creating stuff is really hard.
And people...
They don't understand.
If you don't create stuff, trust me, you don't have a clue how hard it is.
It's brutal.
I mean, it's brutal on the ego.
It's brutal on the resources.
It's brutal on stress sometimes.
I mean, it's just, it's really rough, and you have to be just a little bit south of sanity to even think about doing it for a living.
So it's really, and so that level of effort, I really think, should get paid, and should get paid well.
And if you're really good at it, I mean, yeah, sky's the limit as much as you can get paid.
I think that the best way to do it is to make it as easy as possible for people to pay you.
I mean, if I had to live on checks that people mailed, well, it's almost none, right?
But the fact that people can, you know, pay me if they want on PayPal at freedomainradio.com, they can pay me very easily, it has made it a lot easier.
They can set up recurring payments where, you know, five bucks, ten bucks, whatever a month, they really have to think about it.
So I found that if people, if you make it easier for people to pay, I mean, I think that's fantastic.
Then people, I think, generally will.
There'll be some people who won't.
There may be a majority who won't.
But think of all the things you avoid by not having a state enforce these things, as you know, or a state-like agency enforce these things, you know, the regulatory capture, the corruption, the raising of the cost of enforcement to the point where only megacorporations can afford any kind of legal process.
And so I think that We educate people about how tough it is to create stuff.
We create a personal relationship with our listenership where we're open and vulnerable.
We're real people to them.
And we try to make it as easy as possible for people to pay stuff.
I think that's going to work out really well.
It'll look quite different from what it is now.
But I think that it's going to produce better stuff overall.
Anyway, that's the end of my rant, and I appreciate you just giving me that few minutes.
I really want to tell you how much I've enjoyed the conversation.
You've got some really good, good, good arguments, something for me to really chew over, and I appreciate you sharing them.
But I definitely want to give you the respect of the last word, because you've had such great things to say.
Oh, well, thanks.
I mean, I basically agreed with your whole rant.
I think we will make it easy.
I think that's in the interest of creators to make their products easy.
I think that's the way the market works.
But I think that the fact that the state has done malicious things in enforcing intellectual property doesn't mean that intellectual property doesn't exist.
I mean, the state has done plenty of malicious things in enforcing physical property rights.
And I would just say that all these contractual and free market ideas that you're putting forward are all correct, but property is the basis of the market, and that's going to apply to intellectual ideas just as it does to physical ideas.
And I've enjoyed this conversation just as much as you, Steph.
Thanks a whole lot for having it with me.
I am making a little blog with this little idea that I'm writing up.
It is called Intellectual Space.
The blog is homesteadip.blogspot.
You can drop by there and have a look at how it's going.
Thanks again, Steph.
Thanks, man.
And I'll put a link to that on the show and I appreciate it.
Take care.
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