Protecting Intellectual Property

Protecting Intellectual Property

Intellectual PropertyThose of us who come from the Libertarian, Anarchist, Capitalist, Voluntaryist or similar schools of thought are used to dealing with coercive elements who lay claim to our property, particularly in the form of confiscating our “fair share” of taxes. The coercers begin with some premise that gives them, they say, the moral right to take what is ours – because it isn’t really ours.

Nothing new there. Our entire system of government and politics worldwide is based on the premise that you don’t own what is yours – including your body – and that it’s right and proper to regulate, tax, and confiscate. And if you respectfully disagree you can think about your argument while sitting in prison.

What has become increasingly shocking to me is the number of people inside the pro-individual / anti-State marketplace who have spontaneously declared the same coercive dynamic should be applied to writing, music, software, design, movies, industrial processes and a vast sector of productive human labor widely known under the term Intellectual Property.

I’d like to say at the outset that I am no defender of any State nor of any State function, including its monopoly enforcement against infringement of copyrights and trademarks. I’m also not a fan of any States monopoly enforcement against rape and murder, but I’ll get to that in a moment.


I recently had a brief exchange with one of the principle proponents of this non-ownership of Intellectual Property idea, Stephan Kinsella over on the Voluntaryist blog.

It seems that his argument, as all arguments do, hinges on a premise from the beginning. Namely, in order for something to even be property it must have the characteristic of scarcity. Once you accept that premise then it can be demonstrated that, for example, a digital copy of Led Zeppelin’s Stairway to Heaven is not a scarce thing and therefore – presto – is not property and therefore said band has no rights to the song it wrote, performed and produced at its own financial expense.

Importantly, Led Zeppelin saying “I don’t agree with your premise” is no defense and given zero weight and credibility by the person taking their music without paying.

I asked Mr. Kinsella about this very example and here is his answer: “No one owns it, it has no owner, since it is not an ownable thing. Property rights simply do not and cannot apply to it. This is not a normative proposition: I am not saying there *should not* be property rights in songs or ideas. I am saying there *cannot be*–and in fact there are not, now. What we have now is the law giving Led Zeppelin property rights in other people’s scarce resources (e.g. their money) *based on the excuse* that Led Zeppelin “owns” “the song”. But this is just the excuse given for the robbery that copyright law perpetrates. The song is never owned.”

This argument is a curious mix of philosophical and US copyright law. According to Mr. Kinsella sometimes I was wrong because of the universal correctness of his scarcity premise, sometimes I was wrong because of my ignorance of US copyright law. Either way, I “didn’t know what I was talking about” and/or was “full of sh*t” and/or should “shut up.

Again, no other opinions on the nature and identity of property were valid – only his scarcity premise is valid and that gives him all the license he needs to use the fruits of other people’s labor and financial investment as he sees fit and without paying anything to anyone. Note also that ‘my money is scarce – your labor isn’t.’ Hmmmm.

I know from personal experience that Mr. Kinsella has many young fans who embrace his arguments and feel no shame or guilt in torrenting terabytes of music, movies, software and other IP without compensating the creators under terms to which the creators agree.

I’m never sure where they think future innovation would come from should everyone adopt their convenient beliefs and premises regarding non-payment.

The Handbrake on Bad Ideas

I think it’s possible to create a society of near-zero coercion. I wrote a book about it. The fact is, in such a system, which I call a Contractual Republic, there has to be a place for ideas and philosophies we don’t like and don’t agree with.

There has to be a place for millions of people who want to have their hand cut off if they steal something. Or their head cut off if they sleep with someone they agreed they wouldn’t sleep with. There has to be a place for people who just want to be left alone to be the best Amish person they can be. Or people who want to be syndicalist communists where they have zero private property of any kind. These people matter and they have a right to live their lives as they choose.

The reality of creating global human Freedom (capital F deliberate) is that 7-billion individual preferences need to be simultaneously accommodated. Including Mr. Kinsella and the converts to Intellectual Property communism/non-existence.

But the handbrake on all of these ideologies – including the one I propose – is that people also need to be free to NOT participate in any community they choose. I don’t agree to have my head cut off for your definition of blasphemy. I don’t agree to live by your Catholic definition of morality. And I don’t agree to surrender my work without compensation because of your definition of Intellectual Property.

Mutual, voluntary agreement is the handbrake on ideas we think are bad or that we simply do not agree with for our own reasons. With agreement we trade, without agreement we go our separate ways.

Blaming the State

I think States are monstrosities of coercion and slavery. They are, by the definition I use, anti-Freedom. All of them.

But there is a logical fallacy is stating that because a State protects Intellectual Property in some way, it is therefore wrong and immoral to protect it. The States I’ve lived under also make it illegal to murder or rape an individual – and I certainly support the validity underlying that principle.

My argument is this. Suppose I define rape my own way. Maybe I say there is no such thing as rape. Maybe I say the act of rape does not affect the sacrosanct concept of scarcity. Maybe I say might makes right. Maybe I say an immoral, coercive State grants rape protection without proper intellectual foundations. Whatever. Armed with my new, superior definition, is it then perfectly moral for me to have sex with any person I want, irrespective of his or her consent to my definitions?

I say it is not moral because it’s coercive.

I say there must be mutual, voluntary agreement to the definitions, terms and conditions of the transaction. Once there is mutual agreement, it’s nobody else’s business.

But, if there is coercion we all have an interest in eliminating that coercion lest we be the next victim. This is the value and power of a Contractual Republic and of the marketplace in general. Coercers make restitution or they don’t get to participate with the non-coercers in the market – any of them.

That is the challenge for the folks who want to live in a society where they say there is no way to own Intellectual Property nor to be compensated for producing it. They have a right to form such a society, but what would be the incentive to trade with them if you create valuable Intellectual Property? And if they decide to just take it without mutual, voluntary agreement, the remainder of the productive world would isolate them until restitution was made. Because not everyone agrees with their definitions – especially productive people.

Where do new medicines and new inventions come from for this insular non-IP society when the innovators are not compensated? Where does new software come from? New industrial processes? New methods of transportation, communication, and power generation that contain important new Intellectual Property?

I think these societies would be doomed to gradual decline.

I think the same would apply to societies that redefine rape in ways that don’t respect and protect the people who disagree with the new definition, and simply imposes one unilaterally on unwilling sex partners. I think the same would apply to any society that imposes unilateral definitions regarding anything.

There is a vast difference between these two positions;

A) “Here is a digital file of my new song, I will sell it to you for 99 cents and you can use it under these specific terms. Take it or leave it. Entirely up to you.”

B) “I’m taking the digital file of your song – not respecting your terms – and not paying you anything. And you can’t stop me.”

Some people want to convince me that B is perfectly moral and builds a better world. They won’t convince me of this.

They aren’t alone.

Good people also want to convince me that Jesus of Nazareth is the source of all morality and his Father was the Creator of the universe. They have their evidence and their arguments. I remain unconvinced and do not wish to accept their terms and conditions on my life and property.

Same goes for those who earnestly and deeply believe a particular a prophet born in Mecca speaks for how I should live. Or believe that Ronald Regan was an ideal ruler for mankind. Or that Karl Marx had the definitive arguments and evidence for the correct disposition of property. Or that Stephan Kinsella does.

However, I agree that everyone who does believe and embrace these views and new definitions has a right to organize themselves into a society where they ALL AGREE to those definitions, terms and conditions and they trade amongst themselves.

I wish them well in that. Honestly. Maybe they’ll find a way to prosper and add something to the human experience. As long as they do it non-coercively, by not unilaterally imposing their beliefs on others who do not agree, they have every moral right to proceed. And they can surely live well enough without any Led Zeppelin music.

In the meantime, I’ll be over here in the marketplace where people only trade under mutual, voluntary, agreed upon definitions, terms and conditions and don’t impose conditions unilaterally. I’m betting that’s the better path to an advanced, peaceful, prosperous social system of global human Freedom that can eventually take our species into the far cosmos.

22 responses to “Protecting Intellectual Property”

  1. I completely agree. Freedom can only be achieved when one has complete control over their own property.

  2. I wouldn’t mind having a one on one email conversation with you Peter Sisco concerning your Contractual Republic and the Natural Republic.

  3. Pete, I appreciate your efforts in writing this enjoyable article and your concern for the livelihoods of artists. However, I think you have overlooked a few issues.Your case rests on the idea that once an artist or copyright holder makes a contract with a consumer, that\\\’s it, information and money are voluntarily exchanged and we\\\’re done. The problem is, you have written your article as if your opponents disagree. They are happy for persons to make and enforce whatever voluntary contracts they wish. In fact, it is your position that violates contract, by insisting that third parties who have not agreed to a contract should be held to its terms. Under the existing system, persons who have made no contract with a copyright holder can be sued or prosecuted for possessing and using information that they got freely off the internet, or heard on the radio, etc.I suppose it is possible you imagine that in a pure contractual system, such third parties would not be held liable. That seems a bit counterintuitive, that the reformed system could only punish copyright violations by those who contribute money by participating, but not other persons who took identical actions without paying.Your article frames your opponents\\\’ position as demanding the labor of artists without payment. This is an exaggeration. The death of copyright would end some middlemen\\\’s business, but artists have already begun to develop post-Internet business models that depend less on strict control of their output, since it is simply impractical in our existing world, and even less practical in a world with a limited state or competing defense organizations.Both the history and the philosophy of copyright are built on the foundation of arbitrary government. Copyright was invented to control publishers and authors, when censorship failed. Copyright cannot be effectively enforced without intrusive surveillance of potential consumers. By prohibiting me from singing a song that I know, copyright holders seek to impose thought control. Why is it that novels and songs can be copyrighted, but mathematical and scientific discoveries can\\\’t? It is because copyright is inconsistent, arbitrary and oppressive.No one wants to cheat artists out of a living, except the middlemen that copyright enables. Artists and culture were healthy before copyright, and will be healthy after copyright.Here is a link to a book (released Creative Commons) on the history of copyright and copyright reform:

    • Hi Dave. Thanks for the thoughtful comment.

      1. I have written the article ‘as if my opponents disagree’ because many of them clearly do. They hold the position that a certain digital products are ‘un-ownable’ and, for example, they have the identical rights to Sinatra’s Strangers in the Night as Sinatra does – zero distinction. They hold the position that ‘information wants to be free’ and any attempt to monitize it is an infringement of their Natural rights. So I’m miles apart from those folks. I see them as parasites looking for a sophistic argument to justify taking something for nothing. Like seeing a movie that cost $10-million to make and paying zero to the builders of the product.

      2. You said some people are “using information that they got freely off the internet” I say that’s a bit like me saying “I bought cigarettes freely from the trunk of a guy’s car for 50 cents a pack.” If I did that I’d know they were stolen. If I torrent Jurassic World and don’t pay any money to see it, I know I stole the experience from people who spent millions and need to recover their investment.

      3. You and I agree (I think) that State operated copyright and trademark protection are antiquated. And it is rife with middlemen and rent seekers. A higher technology is begging to show itself. Personally, I’d like to see digital copies that always contained some form of PGP where anyone watching had to enter his own key, identify himself, and automatically pay some money from an online account to the owners – yes, owners – of the movie, software or whatever it is the person will benefit from. I’m sure such payments going directly to artists, engineers and investors would reduce prices enormously. Plus the terms and conditions could be orders of magnitude more flexible and accommodating than current copyright laws.

      4. Math and science discoveries? I hope the day is coming when micro-payments can be made to the builders of the modern world. I’d welcome it and actually (believe it or not) keep a personal ledger of the people, named and unnamed, from whom I have benefited. If my Contractual Estate earns income for 500 years I’d be delighted to pass a share on to the others who make it possible. It’s the least I can do. And I stress that it is voluntary, not compulsory.

      I believe it’s possible to construct a world where everything is 100% voluntary and non-coercive (even things like prison) and that it is the path to both global human Freedom and, by the way, the end of all warfare. But to do it, everyone’s property has to be protected. That’s what human Freedom is, when you really think about it. Every act of slavery and coercion involves the attack on property, living or inanimate.

  4. Hey Pete,
    I think you missed my point. You do have a disagreement, but you have misidentified it. Both you and your opponents believe in free contract, the difference is the basis of property. If someone gets something off the internet, they don’t “know it is stolen” if it cannot be owned. You have ducked the issue of what property is and why we have it in the first place. Because you identify as a libertarian, I would have guessed that you’re interested in property rights and the practical and philosophical basis for them. But maybe you haven’t bothered to think critically about the status quo created under the influence of state coercion and historical accident?

    Copyright was built on the expense and inefficiency of analog technology. Digitizing information has disintermediated many industries, and is not yet finished. How much effort should we expend propping up these dinosaurs? Do they have a right to their business models any more than candle makers had a right to prohibit light bulbs (or for that matter, the sun)?

    If I own information, what do I own? Nothing physical. But ideas and information can be easily copied. And for the most part, we prefer that people be able to copy them, use them, improve them. Setting up an elaborate and expensive mechanism to prevent “unauthorized” idea copying is a waste. How much would it have to cost before we decide not to bother?

    If I steal your car, you know it’s gone and will do something about it. You are no longer able to find it and drive it. If I “steal” your information, you won’t even notice. You are still capable of doing anything you could before my action. So copying can only be prevented by intrusive monitoring by enforcers.

    “Intellectual property” is a bad metaphor, a mistake foisted on us by historical accidents and Queen Anne’s desire to suppress sedition, a power grab looking for a tyrant. It is a ball and chain that humanity will someday shed, and the sooner the better. I can steal your candle, but how can I steal your flame?

    • I’m not sure if there is common ground between us or not.

      I have no interest in defending the history of copyrights and trademarks as enforced by States. It’s fine with me if the terms are lost to history along with the States that impose them.

      I’m saying when a company creates a movie or software at its expense that it has every right to own and control the distribution of that movie or software. Perhaps the words licensing or leasing would be more to your liking. (??)

      In any event, a person who happens upon the software by deliberately torrenting it from a “pirate” website can’t reasonably claim equal rights to that property and treat it as his own in the same manner he would if he spent his own millions making the product. That strikes me as a preposterous position. We all know what property is ours and what property is not ours. A car is no different than a software program as far as recognizing that reality. I know I didn’t create any of Adobe’s software – I’m very certain. It’s not mine.

      That said, somewhere there is a guy who believes it’s fine for him to enter my home and take my TV. He has his premises and logic. I don’t expect agreement with him or between 7 billion people on anything. So in the end, this will get solved by market forces. For example, superior encryption might ensure that nobody can use other people’s property without authorization and, where agreed, payment.

      The folks who don’t go along with paying for what they consume and act unilaterally might eventually find themselves isolated from all or most of the producers. Because producers have to eat. And that issue isn’t going away.

  5. Pete, I’m glad you have no interest in defending the history of copyrights and trademarks as enforced by States. But how does a company control the distribution of that movie or software without it? Perhaps they don’t need such control, and they can make money on it in a different way, since we know that where there is demand the market will find a way. At the very least, they could use crowdfunding.

    I cannot lease out what I do not own. You and I could make a bargain that you will pay me for the use of light from the sun, but you would be a fool to agree. This would be true even if you thought correctly that I had some responsibility for the sun’s ability to shine. It would make more sense, but still be unreasonable, if I had the state enforcing my solar monopoly. Even if I somehow had caused the sun to shine and could prove myself the owner of the photons it emits, by scattering them over the surface of the earth I clearly have abandoned my property, and your use of the photons does me no harm.

    If I claimed to own all information transmitted over the Internet, no one would take my claim seriously. Why should anyone take any copyright claim more seriously, since it is based on a statist metaphor? Even animals must cope with the rivalrous nature of physical matter, that ordinary goods can be used only by one entity at a time. But the state must intentionally create this limitation for ideas and information. Copyright did not exist in law at the time Shakespeare wrote his plays. He “borrowed” plots and titles from those who wrote before him, and used methods other than claims of intellectual property to make income off his efforts. He still managed to make a living, and is even considered a bit of a success story.

    If I spend a million dollars to learn a secret, then I announce my secret publicly where numerous persons can hear, is it still “my” secret? If I produce a movie, then send a DVD of it to every address in the U.S., but then ask the police to arrest everyone who “used my property without permission,” would that make any sense? Do you know that the owners of certain buildings have “intellectual property” in their appearance, and photographs may be taken of them only by permission? Do you favor this sort of insanity?

    You say we all know what property is ours and what property is not ours. But I disagree. The powerful constantly seek to gain a property right over that which has no basis in scarcity or rivalry. They would be happy to try to own the air and the sunshine.

    You say that a car is no different than a software program as far as recognizing that reality. I agree. They both consist of material and information. I own the material that constitutes my car, I do not own the information that was required to make it. But no one does, it is not a secret. If I could copy my car as easily and cheaply as I can copy a DVD, it would be absurd to say that Toyota owns the copy. In such a case, we would all be grateful to those who create new designs that improve cars, and we would support reasonable arrangements to reward them, but we would be nuts to prohibit people from making use of this ability, even if we could do so without intrusive surveillance and costly enforcement measures.

    The similarity of the TV thief and the software “pirate” is entirely metaphorical, based on a fiction.

    I am skeptical about the feasibility of your encryption idea. I doubt you would be so eager to create a scheme that prevented people from eating food they grew themselves. How are they different? No one claims to own the information in the seeds (except a few strains “owned” by Monsanto).

    I agree that the folks who don’t go along with paying for what they consume and act unilaterally might eventually find themselves isolated from all or most of the producers. And those who try to claim powers they do not have or deserve should receive a similar fate. Everyone has to eat, but that doesn’t mean they are entitled to have technology stand still. The market isn’t perfect, so some products that might provide a benefit cannot make a profit. Entrepreneurs face the problem of figuring out how to give people what they want while making a profit. They can’t just declare themselves owners of whatever they like, unless the have a state backing them up.

  6. I think the crux of our difference is you believe Adobe “can not” own the software it makes and I believe they can and do own it. The control of their ownership is a problem for them – only because new technologies have made it easier to use it without paying.

    40 years ago I never heard people saying “The Beatles do not and can not own their songs.” It’s obvious to me they own those songs and I do not. They created them, they paid the money to produce and record them. I did not. Digital recording changes nothing.

    Yes, it’s obvious you or I do not own sunlight, but to be it’s obvious Adobe owns the software it creates.

    What I’ve learned from these blog chats is that people like you and I almost never come to agreement following an exchange. And you and I aren’t even very far apart compared to the guys I know who think there “should be” no property and no money of any kind. (!!)

    I think the only solution that permits Freedom for 7 billion people simultaneously is my idea – or a similar one – with Contractual Republics where like-mined people create their own economic societies. The Republics that find other Republics repugnant can elect not to trade with those. Problem solved. I know I don’t want to trade with ISIS or anyone who does trade with ISIS.

    And the guys with 1,000 songs and 100 movies on their hard drives that they never paid a cent for can take their chances with the producers of the world who clearly stipulated they wanted to get paid for their products.

    There might be an equal number of people who have convinced themselves they can take apples out of a company’s orchard without paying anything. They have their evidence and logic too.

    Maybe economic parasites can find a way to thrive, maybe they can’t and will need to pay for the products they benefit from.

    But the most important issue is to build a world with zero coercion of any kind. Where people voluntarily pay of their own accord or they voluntarily walk away.

    For my part, I intend to walk away from the people who want my products but don’t want to pay me for them.

  7. Hey Pete, thanks for the thoughts. I don’t particularly expect to convince you to agree, but I was hoping to convince you to express the ideas of your opponents more in a way that they would agree with your summary of their position.

    Adobe can’t own software the way they own land or DVDs. It is information, and if we wish to create a system to “own” information, we have to do things differently from the way we deal with ordinary items, items where the owner owns the physical material but makes no claim on the information content. Such enforcement requires an expensive and intrusive enforcement mechanism on top of that required for ordinary goods.

    Owning information denies my right to imitate good ideas. Software patents chill creativity. These days start-ups spend a ridiculous amount of time and money to protect themselves from bogus patents. Even assuming we could reform the system to create only worthy patents, this still puts a counterproductive chilling effect on creativity, because it encourages programmers to reinvent the wheel rather than just use it. It is not just copying and imitation that patent prohibits, but similarity. There is no way to write software at all and be safe from some patent claim.

    40 years ago we never heard people saying “The Beatles do not and can not own their songs.” 300 years ago, we never heard people saying “Plantation owners cannot own slaves.” 130 years ago, people would have found it absurd that you needed the composer’s permission to perform music, not to mention permission from someone who had bought the rights. All of this depends on history and technology. Ownership of material goods is not arbitrary, it is unavoidable. Ownership of information is completely arbitrary.

    “It’s obvious to me they [the Beatles] own those songs and I do not.” Actually, The estate of Michael Jackson owned them, the last I heard about it. But your point remains, if they owned them, they had the right to sell them. Do they own the chord progressions? The chords? The notes? The key of G? The design of the guitars they used? If it makes sense to own ideas and information, we have barely scratched the surface.

    If we are willing to be so arbitrary, then it is not obvious that I do not own sunlight. We can imagine erecting an enforcement mechanism. What more do you need?

    You are concerned for the welfare of artists and the viability of culture. I don’t think you need to worry in either case. We did not depend on copyright before, and someday it will be a memory. Creators will find other means to fund their projects, and grateful consumers will continue to support them. But copying, sampling, mash-ups etc. will be allowed to come out of the closet. Worrying about all this is a lot like saying “who will build the roads!”

    • Thanks, Dave.

      I have no problem with saying, copyrights are unjust and arbitrary – as administered by the US government. Patents are restrictive to overall innovation – as administered by the US government.

      But making the giant leap to the assertion that a person’s work is “un-ownable” and therefore can be used without compensation to the creator is just that – an assertion.

      You mentioned slavery. I’m the guy in the room trying to prevent slavery.

      Do you know why slavery existed and still does today? It’s because somebody interpreted the Koran or the Bible or had some Southern lawyer explain how slavery was 100% legal and proper under the Constitution of the United States. Cased closed. Armed with his superior research, logic and reasoning, the slave owner unilaterally determined that a Black person’s labor was his to take without further enquiry.

      In my article I mentioned The Handbrake on Bad Ideas. The handbrake is mutual voluntary agreement by all parties. Had the ambitious slave owner merely asked the Black person, “Do you agree with me? Is your labor mine? May I place this shackle on your ankle with your consent?” He would have discovered there was NOT agreement, despite his magnificent research and superior reasoning.

      The Stephan Kinsella’s of the world have their research and reasoning. They have examined US law, or Karl Poppers empiricism or Bertrand Russell’s symbolic logic, or Richard Feynman’s quantum mechanics, or the nature of peer to peer file transmission, or have a keen sensitivity to the sacrosanct concept of scarcity, and have to THEIR satisfaction determined that certain products they desire and use are un-ownable by the creators of those products.

      The Stephan Kinsella’s of the world will look an actor, screenwriter, cinematographer, film editor, sound recorder, financial investor and other productive people straight in the eye and confidently inform them their work is un-ownable and not legitimately suited for payment. Then they will take what they want from them and pay them zero. Despite all of the above people making it crystal clear they want to be paid and do not agree!! They, in fact, clearly and unambiguously do not consent to being slaves to the people who have come to certain logical and moral conclusions.

      That’s the handbrake. Do all parties agree?

      I’m the guy in the room seeking 100% agreement between individuals. I’m the guy in the room saying nobody should enslave another. And when I pay my four bucks to iTunes and download a movie to rent for 24 hours, I’ve just shaken hands with everyone from the screenwriter to the caterer who helped create that item of property and I feel good about the fact that I’ve thanked them, shown gratitude and help build a world of productive harmony instead of a world of discord.

  8. Hey Pete,
    I’m glad you’re still interested in the discussion. Maybe we are making some headway.

    Pete wrote that copyrights are unjust and arbitrary – as administered by the US government. But he has not clearly distinguished between IP as created by the USG and his own concept. A number of prominent persons such as Cory Doctorow and Rick Falkvinge support a significant reform of copyright (see Falkvinge’s book, the case for copyright reform, released Creative Commons and so free to download legally from If Pete has this in mind, I have far fewer objections. But he has not really given us a clue how his claims could not be used to justify even more draconian enforcement measures.

    Pete pointed out that “the assertion that a person’s work is “un-ownable” and therefore can be used without compensation to the creator is just that – an assertion.” But his own position, that information and arbitrary metaphysical substances can be owned, similarly is an assertion. Is our choice between them purely arbitrary? Consequentialists will want to look at the cost/benefit calculation, others want to think about the philosophy underlying each position, including the practical implications.

    It is difficult to predict all the benefits or costs that would accompany change. The costs saved are clear, however. No need for surveillance or prosecution of grannies whose grandchildren downloaded something they shouldn’t. No more DRM goofing up your media collection. No more extortion or frivolous lawsuits.

    Pete ducked my point about slavery (and several others), let me see if I can address his. He frames slavery as one person taking the labor of another. Presumably he wishes to imply that copyright violators take the labor of content creators. Certainly they benefit from this labor, but do they take it? Intellectual goods are secret until their creators reveal them to the public. I will never have access to their labor unless it is revealed publicly. If the creators allow their secret to become public, it is not my responsibility to act as if their secret was still secret, unless I have agreed to a contract. For me to be bound by a contract I have not signed is another sort of slavery. I didn’t break into their house and steal their stuff, I heard it on the radio. Our brains are the original recording devices, how can someone broadcast something on the radio and then pretend we should all restrict our behavior to suit them? How is that mutual voluntary agreement by all parties?

    Pete claims that the “Stephan Kinsella’s of the world will look an actor, screenwriter, cinematographer, film editor, sound recorder, financial investor and other productive people straight in the eye and confidently inform them their work is un-ownable”. None of these persons typically uses copyright ownership to profit from their labor. Just the opposite. To the degree that they get involved with copyright, it will be to sign a contract specifying that they make no claim to owning the copyright on the result of their work. (I am dodging a bit here, but I’ll come back to this later.)

    Pete claims to be “the guy in the room seeking 100% agreement between individuals.” But he excludes several groups from that 100%, such as independent reinventors, students, and creative types themselves.

    Pete seems to assume that because producers of movies and songs claim copyright, that they cannot do without copyright. Clearly I am exaggerating, since even Pete probably knows that a massive amount of such content is produced and released under terms that do not require consumers to pay. (Open source software and YouTube come immediately to mind.)

    Pete dances around his central point, without ever addressing it directly. Let me see if I can pin it down. When someone writes a novel, song, poem, software program, paints a picture, takes a photograph or produces a movie, they create something, often something wonderful, that did not exist before. We appreciate these creations and their creators. We feel that they should be rewarded richly, in accordance with the enjoyment, utility or enlightenment they provide, value for value. Due to various historical accidents, producers of intellectual goods currently use copyright as part of the mechanism by which their investment, if successful, will bring a return. Certainly, if this mechanism was abolished, the content industry would change fundamentally, and it isn’t unreasonable to fear disaster.

    Pete’s opponents don’t need to dispute anything but the disaster part. But I still haven’t focused on the real point. Copyright makes a metaphor between making an intellectual good and making an ordinary good. If I make something with my own tools and materials, I own it and should be able to control it within the boundaries of property rights. Pete would like to apply this idea directly to intellectual goods.

    But there is a significant practical difference between the implications of control for physical goods and intangible goods. Physical goods can come in conflict with each other – my car can smash yours – and there are limits on how a particular physical good can be used at a particular time – my wife and I can share the bed, but no more persons will fit or be made to feel welcome. These constraints simply don’t exist for intellectual goods, except to the extent that they are kept secret or we constrain third parties to act as if the same constraints apply. For you to know calculus does not prevent me from learning it, and for us both to know it may make other benefits or innovations possible. This is culture, the ocean of ideas, language and information that our minds inhabit. These goods have different properties, and should not automatically inherit the concepts associated with physical goods.

    The history of copyright and patent is a history of state intervention in the marketplace of ideas in an effort to control culture. Enforcement of copyright equates to a kind of mind control, telling persons they cannot make use of ideas they have in their minds because someone owns these. We can reform away many of the draconian aspects of the current copyright system, but some aspect of mind control will remain.

    Intellectual property is an abstraction, a metaphor. If it had never been created, the publishing, movie, and music industries would look very different than they do. But it is silly to think that the market would not have come up with innovations that enabled art to be created and rewarded without it. Shakespeare created all his works before copyright existed. People want art, and they want to reward artists. The market wants to satisfy our desire. Perhaps we should let it.

    • I don’t want to point out all the context switching and subject changing that just occurred in your last comment. I just don’t have the time today.

      I read your examples like this:

      “Two cars can collide, but two softwares cannot, so I get software free.”

      “Only two people can fit in a bed, so I get movies and music free.”

      “The US government is coercive and self-serving, so I get your products for free.”

      “I never need the permission or agreement of the creators non-physical property makers – I can just use their products without paying them.”

      “Other bright people agree with my analysis, see links.”

      To my ear, these are just sophistic arguments for people who want something for nothing.

      Let me ask you a clear question: A new movie is available and it is offered by Warner Bros in these forms:

      a) Visit a theater and pay $10 for a ticket
      b) Buy a DVD at Walmart for $20
      c) Rent it from iTunes for $4
      d) A pirate site makes is available as a torrent for zero cost to you and zero remuneration for Warner Bros despite Warner’s efforts to stop this.

      How can an honest, decent person morally justify choice D knowing hundreds of people worked to create that movie and need the $10, $20 or $4 to make a living?

      • Hey Pete,
        Things are getting repetitious, so this will be my last response on this issue. You get the last word, if you wish.

        “I don’t want to point out all the context switching and subject changing that just occurred” – I’m just responding to your points. I’ve tried to summarize your idea; do I understand your position? I am not sure that you understand mine. You often seem to be arguing against someone else.

        “I read your examples like this: [etc. etc.]”: I am tempted to read that as “I refuse to take your argument seriously.” But I suppose I should consider the possibility that I just have not made myself clear yet.

        “Other bright people agree with my analysis, see links.”
        The link I gave you was to someone who supports reform, but does not support my position (I think they want very broad “fair use”). It has lots of historical detail about copyright that I can only hint at here. I tried to give other links in my first reply, including some that take your side, but the comment software disallowed that, fearing I was a spammer. I should’ve included them later, but I got too “into it.”

        “How can an honest, decent person morally justify [using a pirate site] knowing hundreds of people worked to create that movie and need the $10, $20 or $4 to make a living? ”

        I don’t know any such thing (see discussion of business model below). But I justify it as a boycott, a form of civil disobedience, and the result of technological inevitability. Why don’t soldiers use swords any more? Why doesn’t anyone make whale oil any more? How do we justify the black market? When governments try to impose expensive obsolete nonsense, people eventually begin to ignore them. (On a cynical note, never bet against convenience.) Government has no right to dictate technology. The internet is a big copying machine. Copying is not a crime. This is a technological constraint. Fight it or go with it.

        Copying used to be expensive. This technological fact, plus some metaphysical legerdemain and an English monarch’s desire for censorship and rent seeking formed the basis of several industries and a legal fiction called copyright. They created an artificial monopoly that depended on the fact that copying was expensive. Now technology has changed, copying is easy and those industries must change or die. And they are changing! Alternative business models exist now, more will develop as the old ones collapse. The old business model is now as practical as having scribes copy the bible or hunting whales to make oil.

        Your economic analysis of copyright is static and ignores most of the picture.You are very concerned for creative types, but you ignore the creative types who are stifled by copyright: mashup artists, samplers, creators of fan fiction, etc.. Because their work infringes copyright, their passion is a hobby at best, a jail sentence at worst.

        Thanks for giving me a chance to present the other side.

  9. A boycott is when you refuse to use a product. (I’m a huge proponent of that method.)

    Theft is when you use it without paying for it. Big difference.

    Again, thanks for your thoughtful, respectful comments. I mean that, Dave.

    You and I won’t agree, just like I won’t agree with some other guy’s erudite arguments for why I’m definitely guilty of blasphemy and therefore he has every right to decapitate me – with or without my permission – because of his superior reasoning and evidence.

    Without mutual, voluntary agreement it’s all coercion. We need to eliminate all forms of coercion from society before it destroys us as a species.

  10. I highly recommend this book:

    Against Intellectual Monopoly, by Michele Boldrin and David Levine

    Michele Boldrin and David Levine , two well-known economists, argue that patents and copyrights aren’t needed for economic innovation. At first glance, the thesis sounds odd. If inventors can profit by getting a patent, won’t that encourage people to innovate? Boldrin and Levine don’t deny this, but they show that this isn’t the full story. Even if an inventor benefits from a patent, his monopoly position restricts the ability of other inventors to modify and improve his product. They illustrate their claim through a discussion of James Watt, whose patents on the steam engine restricted innovation.

    The authors show other problems with the patent system. People have to spend a great deal of time and energy dealing with patents. Often years of litigation result from a patent claim, and the others show in great detail the waste that results from our present monopolistic arrangements. They explain, e.g., the dire effects of the submarine patent, in which someone patents a general idea, unworkable as it stands. The holder of the patent can then block other inventors.

    Surely, though, authors and publishers need copyright protection? How could a book earn a profit without copyright? Boldrin and Levine maintain that this claim is unproved. Authors, like inventors, benefit from being first in the field. Authors made money from their work long before copyright protection was established. This book contains a profusion of arguments and is must reading for anyone interested in the economic effects of patents and copyrights.

    • No argument from me that a coercive State monopoly controlling patents and copyrights is a bad system. I’m also not making the argument that a contractual system of copyright and patents can be empirically proven to offer the maximum or sub-maximum economic gain for the most people. (Not sure how anyone could prove either.)

      I’m saying that to remove coercion from society, all parties to a transaction need to be in voluntary agreement or else no transaction should occur. Some people will ignore that premise. Fine. Let them build a market of people who all ignore IP rights and let’s see how they do over time. I’m guessing when they lack food, electricity, transportation, etc, they might see the merits in paying for other people’s creative work and investment. But all of this would be in a zero-coercion environment.

  11. Good argument gentlemen. My opinion is that Pete Sisco is the winner. Freedom created by a non-coercive, contractual republic, will eventually win over a system wherein proprietary interest is dampened by people wanting to violate a basic law of nature. Namely, that you can’t get something for nothing.
    We don’t need man made laws (someone’s opinion backed up by a gun) but we must live within the laws of nature of which we are all a part.

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