Show notes
Kinsella on Liberty Podcast, Episode 058.
I appeared on the Gene Basler Show (May 30, 2010), discussing a variety of anarcho-libertarian matters–environmentalism, nuclear power, state propaganda in government schools, class action lawsuits, reparations, how to achieve an anarcho-libertarian society, animal rights, positive rights and obligations, forced heirship, and so on (an edited transcript to appear as a chapter in Gene Basler, Environmental Non-Policy: Interviews on Environment, War and Liberty, forthcoming August 2011).
https://youtu.be/e6NkAno4HTA
Transcript
Gene Basler Show: Anarcho-Capitalist Issues
Stephan Kinsella and Gene Basler
Gene Basler Show, May 30, 2010
00:00:05
Gene: Welcome folks. This is Gene Basler, your host. This is episode eight of the Gene Basler Show, formerly called Anarcho Environmentalism. Today is Sunday, May 30, 2010, and I’m pleased to welcome as my guest Stephan Kinsella. Are you there, Stephan?
00:00:22
Stephan Kinsella: I’m here. Glad to be here, Gene.
00:00:24
Gene: Thanks for coming on. Let me read Stephan’s profile on Wikipedia. Kinsella is General Counsel of Applied Optoelectronics, Inc., of Sugar Land, Texas. A practicing intellectual property attorney and former adjunct professor of law at South Texas College of Law where he taught computer law, Kinsella is actively involved with libertarian legal and political theory, and is adjunct scholar of the Mises Institute, as well as the former Book Review Editor for the Institute’s Journal of Libertarian Studies.
00:00:57
He is also a contributor to the news and opinion blog at LewRockwell.com and is the creator of Libertarian Papers, a peer-reviewed online journal published under the Creative Commons Attribution 3.0 License. He writes that, after college, he “began to put more emphasis on Austrian economics and paleo-libertarian insights of Rothbard, Hans-Hermann Hoppe and Rockwell”.
00:01:23
Kinsella’s legal publications include books and articles about patent law, contract law, e-commerce law, international law and other topics. Kinsella has also published and lectured on a variety of libertarian topics, often combining libertarian and legal analysis. Kinsella’s views on contract theory, causation and the law, intellectual property, and rights theory (in particular his estoppel theory) are his main contributions to libertarian theory.
00:01:53
In contract theory, he extends Murray Rothbard’s and Williamson Evers’ title-transfer theory of contract, linking it with inalienability theory while also attempting to clarify that theory. Title-transfer theory of contract: Kinsella sets forth a theory of causation that attempts to explain why remote actors can be liable under libertarian theory. He gives non-utilitarian arguments for intellectual property being incompatible with libertarian property rights principles. He advances the discourse ethics argument for the justification of individual rights, using an extension of the concept of estoppel. Welcome to the show, Stephan.
00:02:33
Stephan Kinsella: Thanks very much, Gene.
00:02:35
Gene: Okay. Here at Anarcho-Environmentalism, we—namely I—argue that there are indeed real environmental concerns out there. We argue that air pollution, water pollution, etc., are indeed real environmental concerns, that global climate change ain’t one of ‘em, and that market and voluntary solutions are preferable to government or policy-based solutions.
00:03:18
I guess my first question for you is, as an expert in patent law, do you think the existence of patent law is really nothing more than just one more way government runs block for favored and well-connected market participants by protecting environmentally irresponsible means and methods of production? And if so, does this not logically follow that patent law harms the environment?
00:03:46
Stephan Kinsella: Well, that’s an interesting connection. I mean for years now I’ve been trying to make – trace out all the harms from patent law. Environmentalism is not one I have made yet. I could see that some arguments could be made. I do think that patent law is a type of protectionism, similar to minimum-wage law and antitrust law, sort of counterintuitively, and that they do protect the larger companies. For example, most of the smaller entrants to businesses or to new markets don’t have a large patent portfolio or the ability to get it.
00:04:28
But you get these large, established market participants; they amass large patent portfolios, and what this does is, it basically protects them from suits from each other, because if one guy sues another guy, then they could be countersued, based upon the other guy’s portfolio. So you can think of these guys as big porcupines.
00:04:50
They all have large, defensive quills, but they’re sometimes afraid to sue each other, or if they do sue each other, then they all come up with a settlement, and they cross-license to each other their patents. Of course, what this does is it lets them keep operating. Now they pay a hefty fee to do this. They pay a lot of fees to lawyers and the patent office, but they get these monopolies to practice that basically isolate and insulate this kind of cartel. A new market entrant has no protection. He has no porcupine quills, so basically, he’s at the mercy of all these established cartels. And it’s much harder to get into the new market. How this leads to environmental abuse, I’m not quite sure. I’d be open to the argument.
00:05:37
Gene: So this is why – let’s say I were to pepper my one-acre property in wind-whipped Cypress, Texas, with windmills and solar panels and back-feed it into the grid. And suddenly I would find myself providing energy for my next-door neighbor and then everyone on the street and then everyone in the HOA. They’d put a stop to me right quick, even though I wasn’t actually polluting anything. The energy companies have a monopoly on the provision of energy, is that not correct?
00:06:21
Stephan Kinsella: Well, certainly the energy market is heavily regulated, and in some ways it’s less regulated than it used to be, but certainly there’s not a completely free market in the provision of energy. So yeah, I would agree with you to that extent, that you can’t just – that’s yet another limit on the ability of small companies and small entrepreneurs to come up with new ideas and disrupt the services and to enter into these kinds of markets.
00:06:49
Gene: Okay, well, I want to say here that Block and Rothbard both posit the view that government protective legislation serves to provide a green light for industry to pollute with impunity. And this is consistent with what you say about patent law, providing similar protections. So even without any further deeper study, I do see some basic-level consistencies with those two positions.
00:07:23
I’ve got another question for you since we’re on the topic of patents. Are those people merely conspiracy theorists who claim that there are patents sitting on shelves for all manner of human-friendly and environment-friendly technologies from 200-mile-per-gallon carburetors to Teslan ionospheric energy capture technology, etc.? Are these people just conspiracy theorists, or is there, in your opinion, some substance to these claims?
00:07:53
Stephan Kinsella: Well, in a word, yes. They’re basically ignorant conspiracy theorists. I understand their skepticism. I understand their motivation to distrust the establishment and the entire patent system, but the essence of a patent is that it’s a public document. So if there’s a patent on something, you can look it up right now in the patent database. So if there were 200-mile-per-gallon carburetor inventions out there that were being kept off from market by some patent power of some patent holder, at least we would know about it.
00:08:29
Now, there is the ability of the military – the government – when you submit a patent application to the patent office, it’s done in secret. And before you can file it in another country, you have to get permission from the US government. So what they do is, you submit a patent to the government, to the PTO in D.C., Virginia area.
00:08:52
And the first thing they do is they send it to the NSA and all these secret groups, and they review it first to make sure there’s nothing really that they want to get their hands on, right? Nuclear technology or something extremely useful to the military, dangerous for other people to find out about. If they find that, which is rare, then they would send a secrecy order to the applicant and tell these guys, look, we’re taking over this idea. We’re going to pay you some money, and you have to keep quiet about it, and too bad, so sad, but thanks for filing it.
00:09:24
Now, that is really rare, but that wouldn’t be a patent; that would just be someone’s idea that the government has told them, you’d better keep this quiet, and we’re going to keep a cap on it. But the normal process is that you file the patent, you get your permission to publish from the government after it passes the review of these other agencies, and then it becomes published 18 months after you file it. And so it’s public to the world even if you don’t get a patent on it. So I think this is the type of conspiracy theory that undermines the credibility of libertarianism, in my opinion.
00:09:57
Gene: Excellent. Okay just to be clear, you’re opposed to this federal government’s first right of refusal, right?
00:10:04
Stephan Kinsella: Well, absolutely, I’m opposed to the entire patent system in the first place. I mean I’m opposed to the federal government existing. The federal government is a criminal organization. So in fact from an environmentalist point of view, I mean I’m hesitant to say I’m an environmentalist because of the connotations and baggage and the socialist and private-property-ignoran
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