An Anti-IP Defense of Copyright
[This is a thinkpiece on a topic that I have not completely resolved in my own mind. I reserve the right to change my mind based on persuasive rebuttals.]
Like most anarchists, I reject the concept of “intellectual property” as a perversion of the concept of property, and an actual VIOLATION of the property rights of owners of tangible assets. Nonetheless, I believe there may well be a sound foundation for protection of creative artists that goes much further than most other IP opponents believe, and I am very concerned that an ethic of contempt for the desire of such artists to make an honest living from their work is being fostered in the anarchist movement, a contempt that is neither consistent with anarchist principles nor especially helpful to the movement.
WHY I REJECT IP
My favorite simple summary of the principle of anarchy is Roderick Long’s dictum that “other people are not your property.” I respect the lives of others and expect them to reciprocate. Mutual respect is the fundamental social principle of anarchy.
Property rights DO emerge from such a principle. Since violence against persons is clearly not respectful, peaceful means of dispute resolution are needed. When two anarchists disagree, they don’t fight it out: they try to negotiate to a mutual agreement whenever practical. When that is not possible, a mutually acceptable arbiter is chosen to decide the matter, with both parties “consenting to be governed” by the decision.
The most common dispute among people of good faith will be over conflicting uses of physical resources. While many systems might have developed to address this, the principle that virtually always seemed to emerge was a preference for the first user of the resource, based on the idea that there was no conflict when they used it (as it was previously unused), and the conflict only resulted from the second party making demands on the same resource. Anarchists all agree that the first user can lose their rights if they abandon the resource, and the question of what constitutes abandonment will emerge from the decisions of arbiters over time and the expectations that develop, which might well be different with respect to different types of resources and different parts of the world. It should also be noted that the second user is not prevented from using a resource if their use does not conflict with the first use: I may gain rights to land on which I’ve built a home, but that doesn’t mean someone cannot slant drill for oil under my land, as long as it doesn’t threaten the foundation, or even use part of my property as a convenient shortcut to the other side, as long as they are not disturbing my ability to enjoy the privacy of my home. The rights I’ve “homesteaded” are those a reasonable person would infer were needed for the use I’ve made of the property, and my agreement to arbitrate means that “reasonable person” principle, not my subjective preference, decides the matter. This is how customary law and early common law developed. Of course, my refusal to arbitrate would mean I’ve rejected peaceful dispute resolution. It literally makes me an “outlaw.” There is little evidence that people prefer violence to arbitration: the notion that anarchy makes it impossible to establish the jurisdiction for dispute resolution is refuted by history.
There is, by the way, no need for anarchists to ever come to an agreement on the details of property law, or any law: people who are committed to peacefully resolving disputes will virtually always be able to do so, even if it sometimes means not getting their way. The benefits of society and the pain of ostracism and boycott are so great as to place irresistible pressure on people to avoid violence except when they have an overwhelming advantage in power, which is one reason anarchists are so focused on avoiding the creation of institutions with great power to do violence.
The reason intellectual property is not property should now be reasonably clear. Ideas are not scarce resources which can only be used by one person at a time: the second user doesn’t stop the first user from continuing to use the idea. While property rights in tangible assets arose to prevent conflict over scarce tangible assets, intellectual property CREATED conflict over abundant assets.
For those who need more convincing, check out the Molinari Institute’s links to anti-IP essays, but please don’t go there yet, or you’ll never return for the rest of this essay.
WHY I DON’T REJECT COPYRIGHT
If I don’t feel creative artists have property rights in the ideas they have originated, where do I see them being protected by law? By the same common law principles. I think we’d all agree that a person who performs a task for someone pursuant to an agreement that they will be compensated is then entitled to be compensated, without respect to whether the task they’ve performed creates or improves some recognized property. If a musician is hired to play at an event, and then plays at the event, does not the person hiring them have an obligation to pay what was promised? Does the fact that the musician has no property right in the songs they played mean they have no right to be paid? Of course not: the right of people to make contracts with each other is recognized in every society.
Fine, you say, but what does this have to do with copyright? Am I arguing that people need to sign contracts for every purchase of a book, song, or software? Or that the click-through contracts online and shrinkwrap legal documents people never read should be enforceable?
A COVENANT NOT TO COMPETE
Not at all. People who have learned contract law know that most of the terms of a contract are implied, not express, and that unreasonable terms in a contract, especially when there is reason to believe they weren’t read, are unenforceable. Common law contracts follow the same idea of customary law that established property rights, including the use of “reasonable person” standards. It is understood by reasonable people who order a pizza by phone that they are agreeing to pick it up and pay for it. I see no reason that a reasonable person wouldn’t understand a book he is being sold is under condition that he not widely reproduce it in a manner that denies the author expected revenues, and that he has in fact AGREED NOT TO DO SO, whether he said so or not. If a guy picks up a girl on a date and takes her to an isolated area, he has an obligation to drive her home, even if they never discussed it beforehand, and even though she has no property right in the car or the guy.
But what about third parties: why should they be bound? Well, they aren’t bound at the time of the first sale, but they are no longer third parties when they acquire the book, song, or software, because the first buyer cannot transfer rights he doesn’t have, and a reasonable person acquiring a book, song, or software from another KNOWS THAT. Reasonable use exceptions are also a product of common law: the right to express honest criticism, to use the ideas in a book, to engage in limited reproduction in circumstances that would not substantively threaten the author’s expected revenue, and to reproduce freely when the author has abandoned the book by ceasing active distribution.
Note that this concept of copyright doesn’t include the right of an author to prevent distribution when the author is unwilling to distribute, or the right to prevent people from using images and creations in a manner that wouldn’t be expected by a reasonable person to reduce expected revenues, or the right to prevent reproduction without permission when the author doesn’t make himself reasonably available. For that matter, the only consequence of violating a creator’s right is restitution for damages as judged by reasonable person standards, so their mere preference a work not be distributed further is not a basis for blocking distribution. Also, substantive revision and alteration would move away from being mere reproduction, and at some point sever any reasonable connection to the earlier work. How much? I have no idea, but common law deals with fuzzy lines all the time. Personally, I think audio versions of books are substantively different than paper versions, but I’m not trying to write rules here: I’m simply suggesting there will be some.
Finally, reasonable person principles would not allow the absurd expectation that people will verify permission to use the type of information that is normally transmitted freely, and once the principle of compensation is established, standardized royalties for various forms of unauthorized use of creative work might apply, exceptions built-in for non-commercial use, and even time limits. Customary law developed quite detailed schedules of payment for various acts of violence, and specific rules will arise that are not “found in nature” any more than the obligation to drive on the right side of the road was established in natural law (or in England or Japan).
A MORE IMPORTANT ISSUE
I am not claiming to know what principles of creative rights will be established by common law, only that some probably will, at least for the most blatant forms of reproduction without compensation, and that those opponents of IP who claim that contract won’t get us very far with copyrights are only making a guess, and I think an incorrect one. But the bigger issue is that I’m seeing many anarchists expressing utter contempt for the expectation of creative artists that they receive compensation for originating and distributing an idea and that people not be able to destroy their expected revenue stream by unauthorized and widespread reproduction.
The argument that we should look for a better model to compensate creative artists, hopefully one that will eliminate the reason creative artists and their representatives are trying to limit the free flow of information, is valid, but expressing disinterest in the compensation of artists works against that goal. I believe it might be quite possible to change the model of compensation so that reasonable person standards will change. Just as tipping is a matter of course in certain industries, and any waiter will tell you it is their PRIMARY form of compensation, even while being completely voluntary, the same Internet that makes distribution so easy ought to be able to make it easy to “tip” creative artists. But the anarchists who dump on the idea that we should have any concern for the incomes of creative artists, pretending they are all J.K. Rowling, Britney Spears, or Bill Gates, might well not be violating libertarian principles, but are certainly violating the “thick” libertarianism of promoting values that will increase the probability of such a society arising.
In other words, even if my entire essay on the validity and viability of contractual copyright is wrong (and I will readily concede it might be, and that I completely disagree with this essay for a few minutes every day), we should be actively trying to discover and promote social norms that will reward creative artists. In the 19th century, Charles Dickens earned more royalties from the sale of books in the US, where he had no copyright protection, than in England, where he did, and J.R.R. Tolkien managed to kill an unauthorized version of one of his books without resorting to law, and Radiohead made some money with an alternative means of compensation for a song, and open source software developers have found ways of earning compensation without copyrighting their work. Anti-IP advocates such as myself love to use these examples to demonstrate that a world without IP is viable for creative artists, but these examples exist BECAUSE people have a strong desire to compensate them, and so should we.
Agorists and voluntaryists talk of building the new society within the shell of the old. Building, not destroying, respect for creative artists, and sincerely evaluating our obligations in a free society to such people with respect to unauthorized reproduction, should be part of that process.
P.S. I am not denying that, under the present oppressive system of IP, some copyright piracy might well be valid civil disobedience. Clearly, contractual copy protection is quite different from the present statist rules.
An Open Letter to the Peace Movement
A hat tip to Don Stacy via one of my favorite web sites Strike-The-Root for recycling a terrific open letter written by Roderick Long in the days leading up to the Iraq War, pointing out that a consistent peace activist ought to embrace the principle of anarchy. The idea that People in Other Countries Are Not Our Property is a subset of the broader idea that Other People Are Not Your Property (Long’s wonderful formulation of the basic anarchist idea). Check out the Long archives at Strike-The-Root for more gems. Long himself blogs at Austro-Athenian Empire.
The Safety vs Effectiveness Choice is Different for Each Patient
In a superb post by Darren at No Coercion, he brings up an obvious point I’m embarrassed to admit I’ve never considered in arguing for abolition of the FDA: the FDA is imposing a single standard of safety and effectiveness which ought to be, in fact, different for each patient. As he notes:
The multitude of voluntary interactions in the free market can quickly and non-coercively identify safe and useful drugs. It happens all the time in other industries. Consider the early adopters–the small group of people who are the first to try a new product. If a new drug for MS is introduced in a free market (i.e. no FDA), most MS patients aren’t desperate enough to jump on it right away. But a smaller group of patients are suffering to such a degree (maybe having tried everything else) that it’s worth it to them to risk the unproven drug, even if there is concern it could kill them. As more of these early adopters move in, data starts to come in (picture something like Consumer Reports for pharmaceuticals or discussion forums on MS sites) indicating the level of the drug’s safety and effectiveness.
As more information comes out from the early users of the drug, the uncertainty starts to diminish, and (if the results are positive) those who are suffering a great deal (but not enough to be in the early adopter group) choose to try the drug (since their personal cost-benefit analysis has shifted based on the new information). This produces even more ‘user data,’ thus continuing the trend of increasing numbers of people using a drug that’s helping them and thus eliminating a great deal of suffering. And it’s all done quickly and voluntarily, with no one having options artificially kept from them by force.
In addition, the manufacturer, not being hamstrung by FDA rules, would be able to constantly improve the formula based on patient results, thus reducing suffering even more.
The point of course, is that the FDA blocks all people from using a drug based on a single standard of how safe and effective it needs to be proven, when the cost-benefit decision is different for each potential beneficiary.
The basic case against the FDA is so strong that I find it hard to understand how anyone who has studied the matter could support it (and virtually no economist who has studied the situation has done so). The decade-plus approval period clearly kills multiples of the number that might have been saved from the delays, the 50% reduction in the number of drugs becoming available each year since the 1962 amendments strengthened its powers makes no sense in a world where advances are occurring at an accelerated pace in all other technological fields, the dominance of the field by large pharmaceutical companies is a direct result of the intolerable cost of approval (around 80% of the cost of a new drug is the cost of satisfying the FDA), and after all that, dangerous drugs are still approved and there are reasons to be suspicious about the politics behind some approvals.
What Darren has done, though, is point out the radically different level of assurance needed by different patients, and the need for such decisions to made individually rather than bureaucratically. Even if the FDA DID eventually only approve drugs safe enough for the average user, they would still be harming (and often killing) people whose situation justified taking more risks.
Nobody is suggesting that drug manufacturers not be accountable for harm resulting from negligence or fraud: indeed, while government agencies are generally punished for causing harm by receiving an increase in their budget, a drug manufacturer that kills its customers will, in a freed market, lose everything to the competition.
As an aside, Darren’s hypothetical example strikes very close to home, as my wife has MS. She ought to have the right to decide when the available evidence on a helpful drug is sufficient for her to see if it can help her, and it is quite likely that the FDA will cause my wife to have to endure unnecessary pain for an extra decade of her life before she gets relief, assuming the costs it has imposed don’t result in that drug never even being developed in her lifetime.
Should an anarchist support state-recognized gay marriage?
I have had two recent discussions with anarchists who believe that it is a violation of anarchist principles to support state-recognized marriage by gays. Let’s stipulate the following:
(1) An organization with a monopoly on coercion should not exist.
(2) It current does.
(3) The effect of state-recognized marriage is to reduce taxes and other state aggression against gays who apply for marriage certificates, while not benefiting those who don’t.
In general, I think we should support reduced aggression against anyone, and that speaking out on state laws is a legitimate strategy. Those who maintain a consistent public silence on all laws that increase or decrease aggression have an obvious answer, but most of us DO speak out on government laws, and do choose to support some legal changes that reduce aggression, so we need to decide if supporting this change is strategically wise. I think so, other anarchists do not, and I’m interested in the reasoning on both sides.
I think a similar issue is coming up soon, as proposals to legalize, tax, and regulate marijuana sales are bound to be in our near future. Even if it purely legalized marijuana sales, it wouldn’t legalize other drugs. Should anarchist support or oppose reforms in the correct direction, and why or why not?
In my view, supporting reduced aggression now is a no-brainer. Favoring higher aggression now in order to hasten the day of an anarchist society is, to me, a violation of anarchist principles, because it means supporting aggression to get to a non-aggressive society.
Memorial Day should be for ALL who have died as a result of War
A constantly updated web counter of the number of CONFIRMED Iraqi civilians killed since the invasion by volunteer, paid employees of the United States government began. The actual number is believed to be much, much higher. Sad to say, an Afghani civilian death counter is now needed, as well as one for unarmed Pakistanis killed by drones. Both numbers far exceed the total number of American civilians killed by terrorists, whom we appropriately have not forgotten.
I have no problem with a Memorial Day that remembers those killed by war. Indeed, in a free future, I would hope such an annual remembrance became an important part of avoiding a return to statism. It is disgraceful, though, when those who were unarmed and not trying to kill others at the time they were killed are treated as less worthy of remembrance on Memorial Day. They will be in my thoughts tomorrow, whether they were American or not.
Ed Stringham on law enforcement under anarchy
During the recent meeting of the Association of Private Enterprise Education (APEE) in Guatemala, Economist Ed Stringham gave an interview outlining the idea of law enforcement without government. I highly recommend Anarchy And The Law, which Stringham edited, for those who are interested in serious theoretical and historical coverage of law enforcement, dispute resolution, and collective defense in stateless societies.
Anarchy In One Lesson
Here is the practical case for anarchy in a nutshell (well, most people think anarchists are nuts, don’t they?):
“The use of aggression in a particular situation will, on average, make matters worse, and it is not possible to know in advance when the general probability doesn’t apply nor to create institutions that will limit their use of aggression to when the general probability doesn’t apply, so a policy of completely rejecting the use of aggression or institutions of aggression is the optimal strategy in the real world.”
The rest is elaboration and commentary. For those who can’t wait for the next installment, I suggest you begin with Friedrich Hayek’s 1945 essay, The Use of Knowledge in Society, available at the excellent Library of Economics and Liberty here.
The Student Loan Crisis: Here We Go Again
In one of my posts on the sub-prime crisis I mentioned, as an aside, that government subsidies for student loans had driven up the cost of college in a manner similar to the way subsidized mortgage lending drove up housing costs. The current November issue of The Freeman contains this article by George C. Leef on how government intervention into student loans helped build another politically-privileged class getting rich while harming the supposed beneficiaries of their program.
I want to especially call attention to the section on Credential Inflation. In my post on Poverty and Government, I cited licensing laws as one of the most harmful to the poor. In field after field, the costs of entry have been jacked up by compulsory licenses having little to do with the quality of the service, and one element of that, cited in the Leef article, is the requirement for a college degree.
There is nothing to prevent a profession from establishing a certification or credentialing program, giving certain professionals a seal of approval that may convince potential customers or clients of their higher quality. It is the monopoly protection of laws that turns these programs into tools for exclusion rather than quality. A free market would undoubtedly have certification by professions and market-provided third party evaluation services such as those that Consumer Reports and Good Housekeeping and Underwriter Laboratories and Kosher standards provide today.
Where the government intervenes to make a service affordable, they inevitably do the opposite. Housing, education, and medicine are among the essentials of life that have gotten enormously more expensive, while food and clothing and transportation, which have much less (I would never say no) intervention have gotten less expensive, in terms of how much time the average person must work to pay for them. The size of the pig trough keeps getting larger once resorting to aggression by government is accepted as a principle of funding.
When Employees Would Rather Pay Full Price at a Competitor
This post by Mark Perry makes a point that should be considered carefully. My favorite part:
What would you conclude about the quality of product or service X under the following circumstances?
1. The employees of Airline X and their families are offered free airline tickets as an employee benefit. The employees refuse to travel with their families on Airline X and instead pay full fare on Airline Y when flying.
2. The employees of Automaker X are offered a company car at a substantial discount and they instead buy a car at full price from Automaker Y.
3. Employees at Health Clinic X and their families are offered medical care at no additional cost as a benefit and yet most employees of Clinic X pay out-of-pocket for medical services at Clinic Y.
In each case, the employees’ willingness to pay full price for a competitor’s product or service and forgo their employer’s product or service at a reduced price (or no cost) makes a strong statement about the low quality of X. What makes the inferior quality of X even more obvious is that the employees at Firm X, since they work in the industry, would have better information about product (service) X and product (service) Y than the average person. What then should we conclude about the quality of public education in the United States given the following facts?
Public school teachers send their own children to private schools at a rate more than twice the national average–22% of public educators’ children are in private schools compared to the national average of 10%.
My take: before government schooling became prevalent in this country, literacy rates exceeded 90% (except among slaves in the South legally prohibited from learning to read and write). Much higher than today. Parents have always cared about their children, and communities about their members: virtually every child who wasn’t legally prohibited from doing so learned their 3 R’s (and it didn’t take 12 years). Absent taxes to support schools, most parents could afford the cost of a voluntary education, and those who couldn’t benefited from the willingness of churches and schoolteachers to allow them to attend for what they could afford (even if it was nothing). Tithing then, like tipping now, is ample proof that people don’t need to be coerced to do things that social norms deem appropriate.
So why did the government get involved? It started in Massachusetts in the 1830s, and the debate was very open: the Protestant majority was upset because Irish Catholic immigrants were educating their children in schools that taught Catholic values, and the majority wanted to “Christianize the Catholics.” They didn’t feel they could actually prohibit Catholic schooling, but by making government schooling free, they hoped to drive it out of existence, and when that didn’t work, they made education compulsory (starting in 1852), which gave them full authority over the Catholic schools to determine if they qualified as an acceptable substitute. For a long time, the argument was that free and compulsory education was needed to make children good and obedient citizens: nobody made the argument based on literacy problems, because it would have been absurd.
Education IS important: that is the biggest reason not to trust it to a government monopoly. Apparently, public school teachers, especially in the inner cities, know that, at least when it comes to their own children.
In any event, there is no reason to make education compulsory. By removing that part, the government won’t be able to dictate to parents who prefer to either home school or private school their students. We already know that students who are determined not to learn won’t learn: you can make them sit there (maybe), but schools ought to have to earn the attendance of the children, and teachers should be allowed to try different methods that have to pass the test of teaching and inspiring children enough to earn the continued enrollment by their parents. I have many friends who are public school teachers: their demoralization, especially since No Child Left Behind turned them into nothing but full-time standardized test preparers, is killing the educational system.
Education should be free, as in free market.
Don’t Just Do Something, Sit There!
One of my favorite bloggers, economist Russ Roberts of Cafe Hayek, has offered a commentary on National Public Radio on the damage Treasury Secretary Henry Paulson is doing to our economy by his frenetic attempts to help it. Roberts’ commentary is linked from a post of his at http://cafehayek.typepad.com/hayek/2008/11/paulsons-failur.html and the transcript is well worth reading in its entirety.
My take: what is happening in the economic sphere right now gets to the heart of the case for anarchism. It isn’t that a free society will solve every problem: it is that the use of aggression is so consistently harmful. As I’ve suggested in other posts, it is government intervention that created the current crisis, not a free market, but even if you believed the latter, consider the chaos that is resulting from government attempts to address it. The bailout threatens massive interventions of an uncertain nature. Bear Stearns is bailed out. Lehman Brothers is allowed to die. AIG Insurance is bailed out. Fannie Mae and Freddie Mac are bailed out. Maybe they’ll be killed, maybe not. A massive bailout program is proposed for $700 billion, then it fails, then it is passed by making it worse (adding $150 billion of pork), and now the targets of the money keep changing, with lobbyists lining up and Paulson changing his mind constantly about what should be bought with his gigantic credit line drawn on the taxpayers. And the auto companies are lined up for money. And on and on.
Businesses and individuals are so uncertain that they are afraid to act and then have the rules of the game changed. One of the reasons the Great Depression went on and on and on in the United States was that Hoover and then FDR kept coming up with gigantic programs and plans, and what is called “regime uncertainty” caused a paralysis of businesses waiting for a stable regulatory environment before making long-term commitments.
One argument used by Hoover and FDR then and by Bush and Obama now is that the government cannot just sit there doing nothing, even if it isn’t clear what should be done. The government is like the doctors of old who had no idea why someone was ill, so they applied leeches and drained blood every day, making the patient worse and often killing them when their illness was otherwise non-fatal.
I can’t prove that the healing powers of the market will resolve the economic crisis, but neither can anyone prove that taking gigantic sums of money away from some people and handing it to others will do so. So, as long as we aren’t sure:
STOP ALREADY WITH THE LEECHES!!!
