Anarchy Without Bombs

Cooperation Without Coercion

An Anti-IP Defense of Copyright

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[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.

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Written by Less

June 19, 2009 at 7:19 am

Posted in Economic freedom

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7 Responses

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  1. @ Tony

    Sorry not to reply faster, but you left your comment on the “About” page rather than posting it to the IP article. For others wanting to read Tony’s comment before my reply:

    http://anarchywithoutbombs.com/about/#comment-101

    Anyway, my reply:

    I’m confident that creative artists can be compensated without the rotten IP system: there are historical examples, and you’ve offered some thoughts. Although I’m not sure they’re all workable in the real world, experimentation will clarify the best method: the principle of anarchy is mutual respect, and the economic system that results from liberty is a matter of prediction more than principle.

    Keep in mind that the overwhelming majority of creative artists aren’t rich, and have quite a bit of difficulty just making a living. Of course, that is under TODAY’S system, with IP, which should lead them to question whether it serves their interests. There IS, however, a reason for a creator to benefit for years or decades, and I think it obscures the point to have the author in your example sell the book to a publisher, since that simply changes the party who needs to benefit over a longer period of time for the work: it doesn’t eliminate the issue. If an author wrote a book in 2005 that I’m just purchasing today, the value was transmitted to me today, not in 2005, and now is when I’m going to be compensating them.

    I feel that a common view creative artists should be rewarded plus technology that makes micro-payments practical are all that we need to properly reward creative artists. My essay was mainly focused on establishing the validity of their claim that intentional users have, in fact, made an implied contract for fair compensation. Of course, the accidental listener to a song owes nothing, just as the passerby doesn’t owe anything to the street performer. Eliminating IP removes the draconian structure, and the reasonable person standard of implied contract imposes an obligation only where it is a result of a conscious choice by the listener.

    Less

    June 25, 2009 at 5:01 pm

  2. Less,

    I found your argument quite persuasive.

    My one reservation relates to the nature of implied terms within a contract. They would seem to depend on the practices and understandings that have arisen over time, and therefore can vary considerably between societies and cultures. In other words, you might have one society in which your understanding of intellectual property is implied, and yet another where it is not.

    This feature differs from the principles involving first use (homesteading), which must have some greater universality to be applicable in cases involving peoples from two cultures (e.g., Europeans and Amerindians). Moreover, while you can contract away property rights acquired through homesteading, freedom of contract does not resolve who is the just owner in the first place.

    Under the Coase theorem, if you have full freedom of contract, the initial status of intellectual property should not matter for efficiency, since parties can contract around it to the optimum. Yet this seems to be a case where the default endowment seems to have considerable inertia and can significantly alter the final outcome.

    Jeffrey Rogers Hummel

    August 18, 2009 at 7:19 pm

  3. “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, ”

    This was also Rothbard’s reasoning about copyright. The mistake is in assuming the “recipient” of the copyrighted thing *needs* anyone’s permission. YOu don’t always acquire a book as in a physical thing that might have limitations on its use. Rather, what you acquire is knowledge: you learn things: patterns and information: recipes, designs, ideas, plots, tunes. There’s a scene in Atlas where Dagny hears a guy on a train whistling Halley’s unknown 5th Concerto, and later finds herself humming or whistling it. She didn’t “acquire the song” as in a CD… she just heard something and learned the tune. How in the world does she need permission to act on information she has acquired legitimately? She doesn’t, so it’s fallacious to say that she can’t do it since the guy she heard whistling had no right to whistle it. So what if he didn’t (which is dubious)–Dagny didnt need permission to hum a damn tune. Or to then perform a song somehow based on this tune. Civilization involves the accumulation and spread of knowledge, which includes patterns, recipes, techniques, etc. Everyone builds on previously accumulated knowledge. To claim ownership of a piece of pattern you have added a bit to is absurd.

    Stephan Kinsella

    April 1, 2010 at 8:49 am

  4. Yes, Stephan, to claim ownership of a piece of pattern IS absurd, which is why I devoted the first part of my piece to defending the anti-IP position you and I share. If I wasn’t crystal clear:

    COPYING IS NOT THEFT

    But I believe some copying is breach of contract, and will be viewed as such by common law arbiters under anarchy.

    As you know, when discussing common law, reasonable person standards apply, as do expectations. I don’t think one can generalize from the example of hearing a tune on a train or using the ideas in a work to the competitive commercial sale of a directly reproduced book without compensation to an author. And I doubt a common law arbiter would have any trouble differentiating the last from the first two.

    I realize that the Internet may make my point moot, since it might so change the expectations of authors as to eliminate any reasonable expectation of non-reproduction from acquirers of works. But if I remember correctly, trademark was accepted in the Law Merchant, and were I to write a series of pro-IP articles and sign them Stephan Kinsella, you’d have a valid claim for damages even though you have no property right in your name.

    That said, the likelihood of even the most modest recognition of author rights being perverted by state power is so great that I hesitated to post my piece in the first place. My primary motive was my concern that, among the anti-IP crowd, there is a developing contempt for creative artists which I think will limit the growth of the market anarchist movement if it continues.

    I believe that future common law arbiters will award compensation to creative artists for some unauthorized reproduction of their work. I believe it will be in the spirit of customary law built on expectations and reasonable person standards, and be an issue of compensation, not a property right of exclusion. Sure, I might be wrong, and said so in my think piece.

    In today’s world, the big fight to is to kill IP. But I want creative artists on our side, and I think it helps to understand that one can both be anti-IP and still believe that creative artists do have reasonable expectations of a limited covenant not to compete among the acquirers of their creations.

    Less

    April 4, 2010 at 5:05 pm

  5. Less,

    “If I wasn’t crystal clear:
    COPYING IS NOT THEFT”

    Of course, patent law does not require copying for there to be liability. And even copyright does not–the bundle of copyright rights is more than just the exclusive right to literally copy the work; it includes the right to make derivative works as well. None of which could be anchored in any possible form of contract; and without which copyright would be a shriveled husk of itself–if that’s all you support, fine, but you have to realize that the copyright lobby will attack this as much as the abolitionist view.

    “But I believe some copying is breach of contract, and will be viewed as such by common law arbiters under anarchy.”

    Third parties, however, are not copiers in tihs sense. And without ensnaring third parties, there can be nothing like modern copyright law.

    “As you know, when discussing common law, reasonable person standards apply, as do expectations. I don’t think one can generalize from the example of hearing a tune on a train or using the ideas in a work to the competitive commercial sale of a directly reproduced book without compensation to an author. And I doubt a common law arbiter would have any trouble differentiating the last from the first two.”

    I grant that some distinctions that IP law relies on can be made. THat does not justify the policies resting on these distinctions, of course.

    “if I remember correctly, trademark was accepted in the Law Merchant, and were I to write a series of pro-IP articles and sign them Stephan Kinsella, you’d have a valid claim for damages even though you have no property right in your name.”

    This has nothing whatsoever to do with copyright or patent law. Reproducing someone’s work would not misrepresent the author at all.

    “That said, the likelihood of even the most modest recognition of author rights being perverted by state power is so great that I hesitated to post my piece in the first place.”

    Indeed you should have been, in my view. IP is nothing but a state mercantalist protectionist abomination.

    “My primary motive was my concern that, among the anti-IP crowd, there is a developing contempt for creative artists which I think will limit the growth of the market anarchist movement if it continues.”

    The *private property* IP opponents of course do not have contempt for creativity and indeed our anti-IP and free market views are fully in support of innovation, creativity, and the freedom and liberty and wealth and security in property rights needed to sustain same.

    Stephan Kinsella

    April 4, 2010 at 5:34 pm

  6. I have no interest in appealing to the copyright lobby. I do have an interest in appealing to creative artists in the market anarchist movement who are concerned about the responses they’ve gotten when expressing honest concerns about their livelihood. Ask illustrator, market anarchist, and all-around good guy Scott Bieser if he has experienced any such contempt from libertarian IP opponents.

    My examples have something do with the copyright argument in that I’m trying to argue for legal claims not based on having a property right. I think there is a problem in adopting the pure title transfer theory to justice.

    BTW, for those who don’t know, Stephan Kinsella is one of the champions of the anti-IP movement online, and several of the links on the Anti-Copyright page I mentioned earlier are to his writings. Among them are undoubtedly some refutations of even my very limited view of common law copyright, and I’d encourage readers to take a look at his more complete writings on the subject if they have the time. His 50-page article in the Journal of Libertarian Studies, Against Intellectual Property, is a masterpiece. It was written in 2001. At least according to the copyright notice at the top of the article. ;)

    Less

    April 4, 2010 at 6:38 pm

  7. I don’t know enough about anarchism to say whether I’m an anarchist or not, so I don’t know how relevant my comments will be. I’m not sure what to think about eliminating copyrights and patents altogether. I just liked the spirit of your post, very much.

    Copyrights and patents are tools that may or may not be useful in a healthy society. It might be that their usefulness for harmful purposes far outweighs any potential beneficial use, but I’m wondering how much good it might do, really, to try to answer that question conclusively now (or ever, really), unless it’s just for practice, for anarchists to practice working out their differences. I can see the value in that, as long as it doesn’t distract too much from more important work, like encouraging and supporting each other in learning to practice and promote our vision and principles.

    jimhabegger

    November 19, 2012 at 5:44 am


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