While my goal may be to establish a “rational” approach, determining a libertarian position would be a wise start. As the libertarian ethic entitles each person to the product of their labor, it provides each person with the maximum incentive to be innovative and productive without granting anyone a right to monopolist profits. This keeps things in check by, in general, creating an equilibrium between the producers’ and consumers’ benefit -- a positive sum game. It may be true that the rationalist may be in a position that makes the positive sum game less beneficial for him than a negative sum game, but we’ll just disregard that since most people aren’t in that position.
Since Stephan Kinsella, author of Against Intellectual Property, is a big name in the [right] libertarian anti-IP movement, I’ll be taking on a couple of his claims.
(I just want to note before going further that I’m trying to come up with a very precise position on intellectual property so that’s going to lead to some of what may seem like strawman arguments, but I am using them to clarify, not tear apart and smear.)
One of the huge reasons why I hate the homestead principle, or more accurately, since I actually like the homestead principle for most things, is how it is commonly interpreted. The libertarian principle for property isn’t “mixing labor with the earth;” the principle is that people are entitled to the product of their labor.
Kinsella states (under heading "Natural Law and the Second Homesteading Principle"):
But "creation" does not justify ownership in things. If I homestead a farm, there need be no "creativity" involved, in the copyright sense; I need only be the first possessor of the land. On the other hand, if I carve a statue into your block of marble, I do not thereby own the resulting statue. In fact, I may owe you damages for trespass or conversion. Thus, creation is neither necessary nor sufficient for ownership.This just sounds like a strawman. No one claims that “creation” is the key; it’s labor. Labor is involved in homesteading. Using the homestead principle to reverse engineer the conception of just property rights is not a coherent way of looking at things and is a symptom of homesteading absolutism.
It is scarcity that is the hallmark of ownable property, and it is by first possession that one comes to own such ownable property. This can be seen by examining the purpose and nature of property rights. Were things in infinite abundance, there would be no need for property rights. But in the real world, there are scarce resources. These things can be used and controlled by only a single person.Kinsella has this a little bit wrong as well. Scarcity makes property advantageous, but it doesn’t solidify anything about ethics if we’re looking at this through a deontological lens (which Kinsella is). If something were infinitely available at no cost, hence not scarce, the establishment of property rights for that thing would be unnecessary for any rational purpose. But “not necessary” does not mean "non-existent."
If I created, through some magic (or whatever other means), an infinite amount rice -- an amount to feed every person 10 times over for the rest of their life -- an amount that on the open market would generate a price of zero -- through my labor, would it be the case the case that I do not own it? It would certainly be a product of my labor. It would certainly be homesteaded (just to appease the homesteading absolutists). Just because it’s a “non-scarce” item doesn’t nullify the basis for ownership. It looks like his argument focuses on tangibility rather than scarcity. If Kinsella were looking at this from an ethical utilitarian position, he’d have a better case, but he specifically disavows utilitarianism (something I’ll speak to later).
Is Intellectual Property Scarce?
But Kinsella has gotten ahead of himself. We must first answer the question: is information actually not scarce? No. Everything is scarce. There are just different degrees of scarcity. Gold is obviously more scarce than salt and salt is more scarce than water. Just taken at face value it’s apparent that information exists in physical manifestations. Take music for example. It can exist on a CD or on a cassette or on a computer hard drive. Similarly, academic knowledge can exist in a book or on an online server or contained in a person’s brain. Clearly, properly defined, information is scarce in that it takes scarce physical property for it to exist in the first place. Or restated, the existence of information is dependent on other scarce resources; therefore, information is at least as scarce as the things that may contain it. What we’re dealing with here is something slightly different which I’ll get to below.
Another thing ominously missing from a lot of anti-IP arguments is the acknowledgment of the scarcity implicit in the origination of intellectual materials. A philosopher who dreams up a wildly imaginative ethic obviously has contributed scare time to the formulation of his idea through research or daydreaming. A musician makes expenditures on instruments which are scarce, records on computer hardware and other recording equipment which are scarce, and also uses up scarce time when creating his end product. Therefore, information is just as scarce as the components used to create it. Once it is created, however, the dynamic changes.
What information is now, at least in the information age with the internet and file sharing, etc, is cheaply (almost to the point of zero cost) or infinitely duplicatable. It wasn’t this way in the past. Pirated versions of things were commonly of poor quality. A friend of mine’s family watches pirated Indian films of terrible quality. Before the printing press, it’d be near impossible to duplicate information besides through the verbal communication of ideas/dialogue. But as technology improves as does the ability of information to be stored and transmitted thus tearing down the previous communication barriers maintained by antiquity.
Currently, information, songs, videos, games, etc. can be looked at like grains of rice and the internet and other technological devices (VCRs, DVD recorders, TIVO) can be looked at like a replicator type device (I don’t watch Star Trek, but it’s a good analogy -- I think). Even though this creates a post-scarcity like situation, it doesn’t have to. Through a strictly libertarian lens, if you own the rice and the replicator, don’t you own all the copies that come out? I’d say so and I’d also say it’s not very contentious either. Whether this is the best way to handle things is a different question and one I’ll get to in the coming parts.
The Rothbardian Position
In a vacuum and without much scrutiny, Rothbard’s position appears to be the appropriate one with regard to libertarianism. Since people own the product of their labor and since thinking, producing music and literature, etc is labor, the creator is entitled to the product. He concludes that while copyrights are justified, patents are not:
It is true that a patent and a copyright are both exclusive property rights and it is also true that they are both property rights in innovations. But there is crucial difference in their legal enforcement. If an author or a composer believes his copyright is being infringed, and he takes legal action, he must "prove that the defendant had 'access' to the work allegedly infringed. If the defendant produces something identical with the plaintiff's work by mere chance, there is no infringement." Copyrights, in other words, have their basis in the prosecution of implicit theft. The plaintiff must prove that the defendant stole the former's creation by reproducing it and selling it himself in violation of his or someone else's contract with the original seller. But if the defendant independently arrives at the same creation, the plaintiff has no copyright privilege that could prevent the defendant from using and selling his product.Patents protect people from the competition of inventions created independently by other inventors and, therefore, deprive the latter inventor of the right to the product of his labor. Whereas with a copyright, intentional copying must be proven.
Patents on the other hand, are completely different. Thus:
You have patented your invention and you read in the newspaper one day that John Doe, who lives in a city 2,000 miles from your town, has invented an identical or similar device, that he has licensed the EZ company to manufacture it.....Neither Doe nor the EZ company...ever heard of your invention. All believe Doe to be the inventor of a new and original device. They may all be guilty of infringing your patent...the fact that their infringement was in ignorance of the true facts and unintentional will not constitute a defense.Patent, then, has nothing to do with implicit theft. It confers an exclusive privilege on the first inventor, and if anyone else should, quite independently, invent the same or similar machine or product, the latter would be debarred by violence from using it in production.
A man writes a book or composes music. When he publishes the book or the sheet of music, he imprints on the first page the word "copyright." This indicates that any man who agrees to purchase this product also agrees as part of the exchange not to recopy or reproduce this work for sale. In other words, the author does not sell his property outright to the buyer; he sells it on condition that the buyer not reproduce it for sale. Since the buyer does not buy the property outright, but only on this condition, any infringement of the contract by him or a subsequent buyer is implicit theft and would be treated accordingly on the free market. The copyright is therefore a logical device of property right on the free market.According to Rothbard’s interpretation, and I find it rather convincing on face value, the seller and buyer agree to terms that they have to abide by -- a contract. (Surprisingly, and I think wrongly, Rothbard has a squishy view on contracts. If a labor contract can be broken, why not a copyright? My own view is that a contract’s validity should be determined by the reasonableness of the terms and expectations. But I digress.) Should the creator choose to sell (or give away) his product without copyright, he is free to do so.
The libertarian anarchist position is that while people may have a property “right,” no one else is obligated to protect it, pay for the prosecution of those who violate it, or be in any way involved in the prevention of theft. This would, without help from the community, technically place the creator in the sole position of protecting their own work. In practice, if this were the case, the copyright could be largely seen as worthless. It would, considering technological barriers to discovery, difficulty in determining damages, and concerns over privacy, be very difficult to prosecute for information piracy.
Only the original purchaser has the agreement with the creator. If someone purchases a song with a copyright and then copies it and passes it out to his friends, under what justification would the creator be able to prosecute anyone besides the original violator? And considering many units of a CD, for example, could be sold, how does one go about tracking the exact person or persons who violated the copyright agreement? That’s one huge practical barrier to actually enforcing copyrights. At the time when Rothbard was writing, this would be far less of a problem because of technological limits, but it is now a serious "problem."
Not unexpectedly, the die hard individualist Rothbard treats intellectual products as whole units created by single entities. This is not representative of how things actually work. Intellectual property can be better thought of as layers of incremental advancement. While it can be argued that a person owns the layer they create, it’s not true that they own the other layers. For example, a musician making music now has been influenced by the musicians before him who were influenced by the musicians before him. They also rely on the technological innovations developed by other thinkers, inventors, and creators. In the case of writing, the language that emerges among people in society is combined with the technology of writing mediums and the mass of thoughts and criticisms of uncountable numbers of thinkers and intellectuals. Just as technology builds upon itself, information and ideas do as well. As a copyright gives exclusive rights to the whole product, this seems like the monopoly implied by copyright is far too overreaching.
Conclusion on Rothbard’s theory
Rothbard’s theory sounds pretty solid, but it doesn’t appear to have any pragmatic appeal. It’d be very difficult to implement in the current world. Furthermore, determining exactly to what degree a copyright is warranted, given that the added component is ambiguous, would be an impossible task.
Pragmatic Libertarian Position
This all leaves us with somewhat of an unclear position. The libertarian wants people to be compensated for what they produce but enforcing intellectual property would be a practical nightmare. I think we can develop a simple principle, however, regarding justice in intellectual property: right to original distribution. The creator of a work has the right to decide on what terms he releases his information to others (ie anyone who logs onto a musician's computer, copies an unreleased track without harming any physical property, and releases it should be liable). Sounds pretty simple, straightforward, and common sense. This may seem implied by opponents of IP, but it's an important thing to solidify. Libertarians should believe in IP to at least this degree.
Cause and Effect
What seems to be very unsettling about most (or at least most of the ones I run into) anti-IP libertarians is their flippancy with regard to consequentialist and utilitarian concerns.
By the reasoning of utilitarians, we could not condemn every act of theft, rape, or murder; we would have to weigh the benefit to the thief, rapist, or murderer against the harm suffered by the victim, to determine whether or not the crime should be permitted. In cases where the aggressor enjoys his crime "more" than it harms the victim, it is not a crime at all, and should be permitted, since net wealth is increased. Clearly, this is a wholly immoral and unprincipled view.While it is true that utilitarianism determines morality based on how much “utility” on net is created by the action -- the more net “utility,” the more moral the action -- it is a morality. It is entirely nonsensical to say “this morality is not moral.” It would be acceptable for him to say that he disagrees with this conception of morality, but to ignore what utilitarianism even is is to strawman. Furthermore, most utilitarians ascribe to some sort of “rule” that just assumes that, in general, a rape victim, for example, loses more than a rapist gains from raping. Very few utilitarians of which I’m aware would pull out a “util” gauge to determine whether or not a rapist should be prosecuted for “utility theft.”
Kinsella goes on to argue against utilitarian arguments for, not surprisingly, not very long, but considering that he has already deemed it to be “immoral,” something tells me he’s not going to give utilitarian arguments a completely fair shake. Needless to say, his rebuttal leaves something to be desired (at least in the piece I’m referencing).
The only real question worth discussing for a utilitarian in this case should be: does intellectual property spur or stifle creativity?
Utilitarianism and Abundance
There’s a couple things we can be sure of:
- If there are no musicians, there will be no music.
- If musicians have no time to make music, there will be no music.
- If musicians have no money to make music, there will be no music.
- If there are fewer musicians, (all things equal) there will be less music.
- If musicians have less time to make music, (all things equal) there will be less music.
- If musicians have less money to make music, (all things equal) there will be less music.
Take my own situation for example, as I am both a writer and a musician who also works. Just as a matter of fact, the more I work filing and copying, the less I can spend on writing and music. And after spending 8 hours a day, 5 days a week at my job, I sacrifice leisure time to produce music and write articles for this blog. And while it is time consuming, I do it anyway because 1) I actually enjoy writing and making music and 2) I feel it may help me find a career in a related industry in the future (so some money concerns there of an investment variety). (And I have received a couple of what I’d consider generous donations to my blog which is nice). The point of this is only describe the real factors that act as barriers to creation.
Any reasonable call to abolish IP, therefore, needs to keep considerate of the costs involved in production. While you might get material from writers and musicians without paying them, it will be limited to what costs they can float themselves. That potentially would not be enough to maintain enough creative enterprise.
Backtrack a little, let’s quickly go back to the “infinite” rice example from the beginning. Say I have all this rice and people are starving, but I don’t want to give any of it away (because I’m an asshole or curmudgeon). It might be the utilitarian solution to just stop respecting the property right to the rice. I would definitely make this argument if I was one of the starving people. But people must also take into consideration what the effects of the seizure of rice or the rice duplicator machine will be. If confiscation would result in the unwillingness to develop other duplication machines that only I know how to make, then it might be a bad idea to mess with me and my rice in the first place. This is an important consequentialist consideration.
Money Incentives and Creativity
Db0 posted this video and offered his analysis by criticizing proponents of IP who think that money incentives result in more and better music, art, etc. From my own experience, I’d have to concur. From a personal view, I don’t make music because of concerns about money; I do it for the love of making music. Same pretty much goes for writing. So when I do try to force out something, it usually isn’t very good by comparison to my other work. Money adds a pressure element that stifles creativity. Instead of creating something that is beautiful or well thought, money directs focus to making things that will be popular. Popular and of high quality can often be conflicting things.
And although this is highly subjective, much like my other point, I hold a much higher opinion of music that appears to be made without monied profit as the ultimate goal. The cookie cutter music produced according to what almost appears to be a corporate formula and is put together by profit seeking actors is not of the same artistic quality of a lot of the music you’ll find in “underground” music circles.
I would suspect you find a lot of similarity within the software and publishing circles. I doubt the dime-a-dozen romance novels that line the shelves of grocery market check-out racks are brimming with creative thoughts and imagery.
At the same time, and this is a point db0 does not make, even if the creative process is not helped, but more accurately stunted by money incentives, the more mechanical processes can, I think, be helped through monetary incentives. Getting good recording quality and taking the time to fine tune everything is definitely a tedious task. To some extent, I think monetary incentives can be helpful.
Normally, I’d probably offer a better proof than my personal thoughts, tastes, and tendencies, but besides the video, I think it’s a pretty straightforward and common sense that to get someone to take out the trash, money helps, but if you want someone to write a beautiful song, money distracts from the goal.
The Destruction of Copyright
I don’t even want to discuss patents because when someone is prevented from releasing a product that they created independently without paying a monopoly price for permission to sell it, I can see no (social or moral) value in that to anyone except for the very person with the patent.
Music is probably going to be the easiest way to explain this…
Say someone gets a copyright for a song and it is 100% enforced or respected. Because of the monopoly, they can charge a monopoly price for it by restricting the mediums (the supply) through which it is released (they could also choose not to charge a monopoly price -- whatever that may be). As I’ve already brought up, invention is a collective endeavor. Every song is a process of collaboration between musicians’ work prior and improvements in technology. So, musician X writes a song and copyrights it thus giving himself a monopoly on what he created and all the component parts of what he compiled from various other sources (in itself, this compilation is valuable labor, but not to the extent of the monopoly over it). Let’s say that musician X adds 25% of original material to the preexisting amount of music out there, but has a 100% monopoly on the total project. This obviously is harmful to customers who have to pay a monopoly (higher) price for the material. The higher price excludes people who would be able to enjoy the music (because it is infinitely duplicatable), but can’t afford it. The musician therefore also gets slimmer exposure which may hurt future sales on future products (as the customer base is smaller than it would otherwise be).
But there’s also a tail end effect. Just as monopolist (single seller) profits incentivize new comers to any industry in a competitive market, they also drive new comers to a monopolized (barrier ridden) market (when it is not apparent that the market is monopolized). For example, profits in medicine incentivize people to try to get jobs as doctors even when extraneous barriers to entry exist. Because the pot of gold at the end of the rainbow is bigger, more people try to find it. Hence, you have a glut of applicants to medical schools for a small number of spots thus wasting investment up to that point.
Copyrights do the same thing. Some musicians become wildly wealthy from their product. This drives people to emulate them in hopes of gaining their own profits. This leads to an excess of musicians trying to soak up limited listenership (as each person only has a limited amount of time to spend on consumption of music. So in this case, the barrier is the natural limit on consumption). If this is understood within context of the point made in “Money Incentives and Creation,” it becomes clear that the money motivation for entering the market degrades the quality. Thus, we have more musicians who are unable to get a market (who keep coming because even though risk is high, reward is really high as well) and who are creating poor quality music. (It is my intuition which I will write about in a stand alone article that copyrights, in the current context, promote crappy musicians to high places.)
It should be further understood that so long as the complimentary market is allowed to grow and function it will assume the productive capacity necessary to facilitate the musicians' market. That is to say, as monopolist profits drive the musicians' market, the guitars market will grow along with it at a competitive level (if there are no barriers to entry). As one market grows, complementary markets will grow along with it; but if the original market is growing "too fast" as a result of subsidy, it can be said that the complementary market is growing "too fast" as well. This means that the lower rung of musicians will still be able to access equipment at competitive rates. This arguably has negative effects on the rest of the economy, but is at least somewhat beneficial to (some) musicians. This might explain in part why underground music scenes have exploded as music has been cheaper to create with an influx of products to fulfill music creation needs (or it could be mostly technology driven). This is a “good” thing if people want to create music as a form of consumption, but “bad” if it is function of malinvestment. (Keep in mind, however, that the lack of a genuine free market in overall enterprise raises prices in what would otherwise be competitive industries: music equipment manufacturers have their own barriers to entry so the cheapness of music equipment in reality is overstated above.)
High Cost Duplication
Ryan Faulk posted this really great explanation on high cost product duplication. In industries, such as pharmaceuticals, where research and development is expensive but can be duplicated inexpensively, critics claim that public funding is necessary because sunk R&D costs cannot be recouped without a monopoly. But as Faulk explains, duplication in these cases actually isn't cheap. It is indeed very costly as any generic drug company must hire expensive employees and purchase expensive equipment to do the necessary testing, reverse engineering, and redevelopment.
I definitely agree (though I’m in favor of “public,” non-State finance for high cost R&D for other reasons). But I don’t think this addresses music, digital literature, etc duplication because the cost of duplication and mass distribution is near zero.
Property vs. Intellectual Property
The anti-IP, pro-physical property crowd has received criticism for its position from libertarian socialists (see here) for "inconsistently" supporting one and not the other. I think the criticism is valid, but at the same not addressing the arguments of the criticized. The anti-IP, pro-physical property crowd defends its position on the grounds that intangible property isn’t scarce, a fallacious argument as I’ve explained. Intangible property is possibly just as scarce as tangible property. Because both are scarce, any person who is anti-IP would consistently be anti-property. (I’ve written how anti-propertarianism is incoherent.)
reACTIONary has made an important point about the (non)-distinction between tangible and intangible property:
The truth is quite the opposite. There is no real distinction between what we term "intellectual" property and property in general. In fact, intellectual property is more prototypical of property than is much of what we consider "tangible" or "real" property. Intellectual property is the essence of property. All P is IP.This is very true. Property norms exist like the rest of norms in society. If no one believes in your rightful ownership to a certain bike, you do not own that bike in any substantive way until others recognize your claim. You can protest all you want, but until your claim is respected by others, it is functionally worthless. The opposite is true as well.
What is it that distinguishes something that is "mine" from something that is "yours"? It is the way that you and I behave with respect to it, and the expectations that we have for each other's behavior. If the bicycle on the sidewalk belongs to me, it is OK for me to get on it and ride away. If you take the same action without going through the ritual of "getting permission" first, it isn't OK and you can expect a very different response from me than if the bicycle were yours.
This difference in expected and permissible behaviors, while it centers around an object, is actually about our behavior with respect to one another. Respecting each other's property is basically a way of respecting each other, of according to each the dignity and respect due a fellow human being and treating each other the way we would expect to be treated. It is not all about an object. It is all about our relationship.
Rational Goals and Considerations
Given what we understand, we can establish certain goals that market participants may have:
Producers of intellectual material
- Likely would want to make the most money off their product (without sacrificing artistic credibility?) - A holder of a monopoly could, in general, be considered better off in relation to this goal. However, with there being a natural limit on consumption and differences in tastes and quality, some are going to be much more profitable than others.
- If they are artistic purists, they’d likely want to produce the most honest product - If money clouds the ability to be creative and copyrights function to deliver economic profits, then it seems logical to conclude that copyrights hamper this goal.
- Likely would want wide distribution - Copyright definitely would tend to hamper this goal. The copyright’s primary purpose is to generate profits by dampening supply (like the “benefit” of any monopoly) so fewer people will receive the product with copyrights attached.
- Likely would want to keep making more material - This requires money so a copyright could help, but not necessarily so supposing they could get money through some means other than monopoly.
- Want maximum profits - Copyrights tend to maximize profits (short term anyway) so the profits can be capitalized to the distributor. This might explain why record companies appear to be more concerned with the protection of copyright than artists.
- Maybe they actually care about art or goodwill and consumers - Interests would line up with producers and consumers.
- Want cheapest prices - Copyright definitely doesn’t help this.
- Want quantity - Copyrights definitely don’t help this unless they are themselves necessary for intellectual goods to be produced or quality is a nonissue.
- Want quality - If money incentives have a corrupting influence on music, then it would follow that copyright likely leads to the degradation of information.
We do have an alignment between consumers and some, possibly most, producers (maybe including distributors) wanting a decent quantity of music, videos, information, etc. They also want it to be of decent quality. Let’s take for granted that money corrupts information, then what we want to accomplish in order to satisfy the other goals is to find a middle ground where information is financed to a point at which it can exist at an “optimum” level (by taking care of costs of production or the opportunity costs of the producer), but where economic profits cannot be generated. Just as what is “socially optimal” for bike production and consumption exists as an equilibrium between the supply and demand of the market, the same applies for non-tangible goods.
The problem for non-tangible goods arises from their currently natural position as almost perfect public goods: they are both non-rival (one’s use of it does not impede the ability of another to use it) and non-excludable (the creator cannot easily withhold the good from others).
Donation based support seems like an obvious cure. When people feel obligated or responsible to pay for the things they use, they will make efforts to pay for it. Contrary to claims by the pro-copyright crowd, people do voluntarily support things.
Something tells me though that donation may not be enough. Even if it is, simplicity is key. The blockades between the producers and the consumers need to be minimal to maximize transparency and promote what might best be called mutual aid given the relationship between information, its producer(s), and its consumers.
(I think I have a good idea that will not be shared here (demonstrating my right to withhold information). If you are good at web design and are interested, let me know. Maybe we can work together on bringing the idea to fruition.)
As I stated at the beginning, I wanted to critique and refine the concept of IP through a libertarian/rationalist lens. And while my position is very similar (anti-copyright/anti-patent) to the standard “anti-IP” position there are those slim differences (ie recognition of scarcity). I found the Rothbardian position and the anti- position to be lacking support and found that a synthesis resolved many of the problems I have with both.
What I propose is that instead of libertarians/rationalists being opposed to intellectual property, we should be opposed to “intellectual monopoly” (same as the book) in the same way we are about everything else. In fact, we should be in favor of people reaping the rewards of their work. This includes the production of non-tangible goods as well. In the same way that a government monopoly on postal service hampers our ability to use our tangible property in the way we see fit, copyrights and patents hamper the ability of us to use our non-tangible property in the way we see fit. So, being pro-copyright and pro-patent, just as with any other monopoly, is anti-intellectual property, not pro-IP.
What I think libertarians should do regarding intellectual property is support a feeling of appreciation for it by advocating for voluntary support of the arts and research. People do what they feel is right. The pro-copyright mentality is full of the garbage neo-classical dogma “that everyone is trying to get everything for free.” No, they want to maximize utility. And if feelings of goodwill for artists and thinkers are part of peoples' mentalities, they will pay for those services they provide. What libertarians need to avoid is just the opposite. The reason I’m wary of calling what I support as “anti-IP” is due to the fact that such rhetoric could created a feeling of entitlement to the things generally classified as IP. “It’s not scarce. It’s free. It’s mine.” is a mentality it would be wise to discourage because it is scarce, it is costly, and, more accurately, it’s everyone’s and everyone’s responsibility to support (what they like of it anyway).