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.