Oh this was so much fun.
Maybe it was my anticipation of it, but I don’t know how you guys could stop listening. It was as entertaining as a good movie. I even had my popcorn. (Well, it was tortillas, but still.)
I’m going to address specific points from the debate, so if you want to listen first, go ahead and do that before reading further 
Pre and early debate
My pre-debate guess was correct…despite all his “getting into Kinsella’s head” posts on his blog, it was Wenzel who was getting people in his own head. He all but admits it when early on he proclaims several times how Kinsella “pissed him off”. And he was clearly emotionally affected for the vast majority of the podcast.
What’s also telling is how Kinsella laid it out quite clearly (in his intro, no less) that the burden on Wenzel (and any pro-IP advocate) is to actually provide a positive case for IP…that simply picking at Kinsella’s argument or anyone else’s is not sufficient. But notice that’s exactly what Wenzel starts off doing. And it’s not even a good pick…he picks on Kinsella’s opening statements in Against Intellectual Property, where he lists Rothbard as an example of people showing anti-IP sentiments?
I guess it should have been expected, given Wenzel’s obsession with Rothbard (that goes even beyond his fixation with Jeff Tucker). Wenzel is probably more “If Rothbard said it, it’s Gospel” than even Lew Rockwell. So I suppose it’s fitting that his first instinct is to make sure to try and make the point that Rothbard was in favor of IP…because of course that’s the side he himself has taken, so of course the most important thing is that that’s the side Rothbard was on…and if that means he can show Kinsella was wrong in a statement about Rothbard, so much the better.
Wenzel’s lack of a positive argument
The trouble Kinsella has right from the start in getting Wenzel to even give a definition of “intellectual property” illustrates quite plainly what has been said in the comments of Wenzel’s blog for some time now: Wenzel has basically avoided stating any real concrete explanations of anything he’s had to say on IP…so no one has really had any way of actually dismantling his pro-IP position…because he essentially won’t give one.
Every time he’s ever been challenged on it he just claimed it would be dealt with in his “upcoming book”. For FOUR F-ING YEARS he’s been saying that. No joke. Here’s the earliest mention (earliest I happened to know of, anyway) of this mysterious book …in 2009. (To put that in perspective, George W. Bush was still President, just 5 days prior.) There may be others even earlier, but I’m not sure.
I think this comment from a few months ago was quite apt:
I am creating a new fallacy called “Argumentum ad Pseudo Librum”, it’s the “Argument by referring to an unpublished book” fallacy. Bob always drags it out when you start questioning his pro-“libertarian IP” views. He says “Just wait for my book” instead of responding to your argument. Then he never publishes the book.
Where is it? HBR? Wiley? Oxford? MIT Press? Who optioned the IP on this one?
I think this debate all but proves we’ll never see an IP book from Wenzel. At least, not one that provides any sort of positive case for it, anyway. I fully accept he may put out all sorts of crap attacking Kinsella’s work and that of any others…but I can pretty much guarantee we’ll never see anything of his explicating any of his own actual positions…something that everyone else can pick apart the way he insists on doing with Kinsella.
In fact someone even brought it up back in 2010 on his own blog…
“It will be nice when you finally publish your IP book so we can all start taking swings at your IP views because right now it’s unclear what they are and why and everytime people try to critique them you insist we wait to read your book!”
…Again that was almost 3 years ago.
Wenzel has no positive position because he can’t. Kinsella is simply right, there is no way to justify IP within a true libertarian framework. It’s simply unlibertarian. This is why Wenzel insists on trying to find fallacies in Kinsella’s writing, and simply quoting other people, instead of even defining what “intellectual property” is. He won’t even define his terms…probably because he’s got at least a few brain cells left in his senility to know that the minute he actually states a concrete position on IP, he’ll be taken to the woodshed, not just by Kinsella, but by the entire libertarian population that understands the unlibertarian reality of IP…which is quickly becoming not only the vast majority of the libertarian population, but large numbers of the population even outside libertarian spheres… (Falkvinge.net; Torrentfreak.com; Legal Scholars: Thumbs Down on Patent and Copyright; The Origins of Libertarian IP Abolitionism; The Death Throes of Pro-IP Libertarianism)
Wenzel’s lack of understanding
You’ll notice this tactic of nitpicking is basically his whole “argument” for at least the first third of the podcast. When he moves on to his Drudge Report formula, he simply fixates on the the fact that he’s (allegedly) the only person who knows the formula (even though there’s no possible way he could be sure that he’s the only one who has come to know it. He fully concedes the concept of “independent discovery,” yet he apparently knows for sure he’s the only person to figure out this formula). He claims that the fact that no one else knows it, means it’s scarce. When Kinsella says it’s not scarce, Wenzel insists Kinsella recite the formula back to him. As if a single person not knowing something means it’s scarce.
Even on Wenzel’s own terms…hypothetically saying ideas can be owned, I fail to see how one single man not knowing the formula demonstrates its “scarcity.” I’m sure Kinsella could have easily asked Wenzel what the 100th digit in π is…does Wenzel’s ignorance of that prove it’s a “scarce” bit of knowledge? And just how many people have to know something before it’s not scarce, anyway? 25? 250? 1 million? Where do we arbitrarily draw this arbitrary line?
When Kinsella tries to point out that scarcity in the economic/property rights context implies rivalrousness, Wenzel equates “rivalry” with competition, using an example of himself being pissed off at party C who came to know his secret through breach of contract by party B…that means that him and C now have a “rivalry”. The moron doesn’t even know the economic definition of the word…but then again I suppose that’s not surprising, considering he won’t define ANY of his terms.
This is further illustrated with his fixation with Hoppe’s words “super abundant”. He basically takes those words as the litmus test for whether something is “scarce” or not. (As if that were any less ambiguous than his “does a particular man know it” test from earlier.) His problem is that he is evidently not familiar with the economic definition of “rivalrous”, so Kinsella has no way to explain what truly determines if something is scarce.
Wenzel thinks that if he can make a case that something isn’t “super abundant” — apparently because Hoppe is the ultimate authority on this, and his words are gospel, (where Hoppe ranks relative to Rothbard on this scale of supreme edicts from on high, I’m not quite sure) — then that specific something is not scarce. Kinsella tries to explain multiple times that “abundance” has nothing to do with scarcity in this context. When talking about scarcity in these terms, as Kinsella points out, the issue is whether they are rivalrous or not…that is, whether one person making use of the thing in question prevents or otherwise hinders someone else from using it.
Of course Wenzel never seems to get this point. What’s funny is that a couple of commenters on his blog in his defense say things like “Yea…keep trying to convince everyone that “scarce” is something other than scarce,” but Wenzel’s opponents clearly state that ‘scarcity’ does not have to refer to ‘rarity’.
Logical fallacies
You’ll notice Wenzel’s entire argument — if you can even call it that — almost entirely centers around the fallacies of begging the question and a combination of argument by name (i.e. argument by definition, without stating a definition), equivocation, and appeal to authority… (And that’s of course if you ignore what seems to be his overall argument, the ad hominem that Kinsella is “sloppy” and “doesn’t know Rothbard”.)
Throughout the whole podcast his overarching theme is that Kinsella’s writing is sloppy and Kinsella doesn’t know Rothbard very well. What this does to prove or even support a pro case for IP, I have no idea.
When he’s not spouting ad hominem, he constantly seems to essentially make variations of the argument that ideas are property because they can be “stolen”, or that because it’s “theft of someone’s property” if you rent a car from Hertz and sell it to a third party, that means it’s also “theft of someone’s property” when you pay someone to share some information with you and then you reveal it to someone else…because “it applies to all sorts of property…intellectual property!” (1:51:40)
And when he’s not doing that, he’s either equivocating on the terms “scarce” and “rivalrous” or quoting Rothbard as saying “copyright is a logical device of property right on the free market”, and essentially implying that because Rothbard said that, that makes copyright valid…even though (a) Rothbard is not God, and (b) he wasn’t even talking about the same concept we are referring to by the term “copyright”.
Wenzel is so focused on Rothbard simply stating that “copyright” is valid, that he doesn’t even recognize Kinsella’s point that Rothbard may have said the word “copyright” but was in fact talking about something else. Obviously if I take a bite of cereal and say “I sure do love eating cake”…that is not proof (or even strong evidence) that I actually like the dessert.
The closest Wenzel gets to making a point
I think the part at which Wenzel gets closest to making any sort of coherent point is the part about the Mises sign, where he’s referring to a blog post he made in which he embedded a picture of a “private property” sign on the parking lot of the LvMI. It sounds like he’s making the point that everyone chooses to what extent they are willing to protect their property…meaning that the LvMI just put up a sign, but they could instead have a moat and sharpshooters. Applying that to his “Rothbardian” world of IP, it seems like he’s trying to say that you get to choose to what lengths you’ll go to to enforce your “intellectual property rights”…meaning if you are using information that someone else owns the copyright in, they can choose to simply send you a cease and desist letter, or they can actually go tie you to a chair. I think. I can’t really be sure. He never really makes it clear, but either way it’s irrelevant because he’s still begging the question. He hasn’t established that anything that is currently protected by IP laws is actually property. So it makes no difference how such things would get “protected” in a “free society”…he hasn’t proven that they should be allowed to be “protected” (i.e. that you should be able to use force to prevent others from using them.)
I also understand what he’s saying when he tries to say that Kinsella’s theory doesn’t begin until a contract is broken, but he only says that because in that moment he’s limiting his view of what constitutes “intellectual property”, or at least, what is currently protected by IP law (again, we never got a definition of IP from Wenzel).
He thinks that the only way things can become super abundant (when the “secret-knower” doesn’t want his secret out) is if someone breaks a trade secret-type contract with someone else. But he’s neglecting virtually all forms of copyright. If my house is near a pavilion, and an outdoor concert is being held there, and a band plays a song and I happen to hear it, under current copyright law I can’t just go play that music on my own piano, record the sounds my piano makes, and sell copies of the recordings. (Not without paying someone a royalty, anyway.)
But there was no contract between me and the person playing the song. So how can he justifiably prevent me from selling my recordings of my piano playing? Kinsella addresses this very clearly in his monograph when he discusses how Rothbard was wrong: sure you can set it up so that everyone who buys a book agrees to a contract to not share the information contained within it…but suppose a third party comes across the book left on a park bench? Or sees words on the page over your shoulder as you’re reading it. Can they now not go write a new story about those same characters? According to current copyright law they can’t. But what contract have they broken? What contract has anyone broken?
Kinsella actually starts to get to this point when he actually poses that same book scenario, but he elects to take it in a different direction and point out how no one would even agree to such a contract. Personally I would have just hypothetically agreed with Wenzel’s suggestion of such a contract and gone straight to the third party learning the information without B breaching the contract, because as we saw, Wenzel just used the wiggle room, leading to spit-on-the-keyboard moment starting at 2:16:17. [described below]
Funniez and other timestamps
One of my favorite parts comes at 0:24:33 when Wenzel claims Rothbard supports copyright, and Kinsella says that’s false. Then Wenzel quotes Rothbard saying “copyright is a logical device of property right on the free market”…right after Kinsella initially brought up that very section of Rothbard’s work himself to show that Rothbard was confusing the term “copyright”, as his example was a mousetrap…an invention…which is not covered by copyright, but patent. So when Wenzel introduces this quote, Kinsella responds “Bob, he’s talking about a mousetrap. Do you understand the definition of…”
Then Wenzel cuts him off with: “THE MOUSETRAP…DON’T YOU KNOW THE DIFFERENCE BETWEEN COPYRIGHT AND PATENT? THE MOUSTRAP IS PATENT, IT’S NOT A COPYRIGHT!”
I swear this guy was senile over 2 years ago when I initially said it. He’s so far gone now it’s comical.
1:18:28 was another one of the multiple parts I almost laughed my way into needing a new keyboard. Kinsella references Rothbard’s “half-hearted” argument for contractual copyright. The minute he said that I was like: “Uh oh. NOW he’s gone and done it.” And Wenzel so totally delivered: “HALF HEARTED?! ROTHBARD?!??” Watch out Kinsella. I’m sure there’s now a nice little spot for a doll of you in Wenzel’s Rothbard closet shrine.
2:16:17: Kinsella asks “well how is [the contract] going to be designed then?” And Wenzel doesn’t have an answer: “Who knows? Let the free market decide.” And then Kinsella sums up Wenzel’s argument:
“So in other words, you think maybe you could have a contract that could act something like IP, but what would the contract look like? ‘Who knows?!’ What would IP look like? ‘Who knows?!’ But I’m still in favor of it!” (Another nearly new-keyboard moment.)
1:42:19 is probably the best Cliff’s Notes boil-down to the basis of Wenzel’s amateur position. I love how he’s so forceful with it, but yet still doesn’t seem to be able to state it smoothly…all the meanwhile Kinsella is mockingly playing along with "uh huh"s as if he hasn’t heard this crap a thousand and one times.
1:50:58 Wenzel gives his own summary of his major points: Kinsella doesn’t know Rothbard, Kinsella quoted a paper in a blog post but didn’t read the paper, and Kinsella thinks Wenzel’s formula to get on Drudge is super abundant.
..I assume, “therefore, IP is valid”?
1:10:01 I was literally at the edge of my seat when I heard Wenzel begin “my alternative theory is…” And then it finally comes out: “…ideas are scarce.”
There it is folks. That’s Wenzel’s basis for IP.
Of course now that Wenzel actually stated a position pertaining to IP, Kinsella just as a reflex jumped right into his refutation of that particular flawed justification for IP (the same one he and so many others have fleshed out so many times he could do it in his sleep). I just wish he would have slowed down to make Wenzel agree with him in a step by step Socratic way, so Wenzel couldn’t worm his way around later.
1:41:28 The second admission we finally get from Wenzel of something concrete is that Rothbard would be in favor of copyright into perpetuity (which I think it goes without saying that that means that’s what Wenzel is for too.) Can I just say, “holy shit?” Of course Kinsella laughs and Wenzel starts looking for a quote, and when he immediately discovers he can’t search and talk at the same time, he tells Kinsella to “talk about some…uh…some other thing” (obviously so he can ignore whatever point Kinsella makes and use the time to track down his next Rothbard quote.)
Conclusions
Basically this interview exposes that Wenzel has absolutely no new theory of IP or even property rights. I recall in one blog post a while back when he was defending his delayed book release, he claimed that his research into IP led to him going even deeper, into analyzing the concept of property and property rights. Exactly a year ago he mentioned his “soon-to-be-released” booklet Why I Am A Libertarian Even Though There Are No Natural Rights. And more recently in his post on the Ron Paul vs. RonPaul.com fiasco, he states that all rights are “designed.”
I forget exactly which post, but I seem to recall him implying his work was at least to some degree a development of a theory of rights or something to that effect…that essentially his defense of IP was going to be some kind of new understanding of even more basic concepts.
But of course this podcast unequivocally shows Wenzel’s position is nothing even remotely new (surprise, surprise).
With all the dancing around and ad hominem, I’m actually a little surprised Kinsella didn’t just eventually say “Okay Bob, I’m a total idiot. I’m the sloppiest writer in the world. Can we hear your case for IP now?”
Overall I find this to be a huge plus for the anti-IP side. Despite Wenzel’s self-promotion and false blog post title, Kinsella clearly destroys him in every relevant way. (And yes, I realize it usually happens that people say that for the side they support, no matter what happens, because obviously the whole thing is subjective)…but in this case I think it gets as close to empirical as you can…
Kinsella offers clear arguments and expositions of his points, and actually offers such arguments on the topic of IP (the subject of the debate). Wenzel does no such thing, he simply picks specific quotes from various authors and reads them out loud, and then fixates on tangential irrelevant details, asking the same question over and over, even after Kinsella gives the answer. He must have asked the “is the formula scarce” question close to a dozen times, with Kinsella answering directly at least three times, and offering a full explanation twice. And of course when Kinsella ventures to ask him a simple question, or even to simply define his terms, Wenzel is all “well we’re gonna get there.”
I will grant that Kinsella initially was on the losing in terms of vulgarity, electing to use swear words on multiple occasions, but I wouldn’t go so far as to say he got more angry than Wenzel…as Wenzel made it quite clear he was “pissed”. It was evident to me Kinsella was just getting fed up, and being of a younger ilk, curse words seemed to be a much more colloquial, conversational part of his lexicon. (Notice his use of words like “dude” as well.)
But of course, later the tables turned and Wenzel let his tongue fly as well (1:25:14, 1:46:38, 2:04:39) LOL (Speaking of which, is Wenzel really a Scientologist?)
But as I said, in the areas that matter, I think anyone listening will find Kinsella to have had the superior showing. I’d like to say he had the superior argument, but Wenzel never really presented one…which I think is the most damning part of all for him.
I’ve determined that Wenzel really is well on his senility journey. I had my suspicions a couple years ago…but this was just scary. He honestly just doesn’t seem to have the capacity to actually understand the anti-IP position. He makes it quite clear especially starting at 2:07:10 that he honestly doesn’t understand not only the basis of the concept of property, but he doesn’t even understand Kinsella’s point about the nature of information. He literally says that Kinsella’s argument is that if A tells B something, and C finds out, that makes the information “super abundant”, and therefore not scarce, and therefore not property.
It’s insane.