So, no matter how annoying RINO’s and the psycho-Santorum social conservative wing is within the GOP, the fact is that our problems are nothing compared to how the libertarians are going out of their goddamn minds. The argument between libertarians and conservatives used to be over the need for social constraints—libertarians believed we didn’t need any and conservatives believed those needs could be handled mostly by church, private charity, community organizations, and local government (with maybe just a touch of state government in special circumstances)*—but not anymore. Now libertarians are becoming a big tent party that has no ideological center, in addition to old school libertarians, the anti-war left, drug addicts, and anarchists seem to all be flocking to the name libertarian under a truly perverse idea of liberty.
For instance I’m now seeing an attack on intellectual property. This seems to come from the a response to the poorly conceived SOPA and PIPA laws, in addition to the continual and idiotic extension of copyright laws (driven a great deal by the Disney corporation), the insanity of the Blurred Line verdict, and the wide ranging extent of patent trolls…but to say because there is bad copyright and patent laws we should get rid of the concept of intellectual property is about as logical and ethical as saying that because you can find some innocent people who were convicted of murder then we should simply stop making murder a crime. And it is now materializing in a truly irrational fear of free trade.
First let’s go over the bizarre argument from the libertarian organization Learn Liberty**
So the argument is that intellectual property isn’t like private property.
Well before we get into this argument let’s look at why you have private property rights in the first place.
To do this we go back to John Locke and the Theory of Natural Rights. The theory of natural rights is always best understood in the context of living on a deserted island. So let’s say, like Robinson Crusoe, you get stranded on a deserted island for 10 years. You build a house, you farm the land, you pick fruit. Everything is yours. Why? Because according to the theory of natural rights you have mixed your labor, something that is most certainly yours, with something that no one had any claim to beforehand (the land, the fruit, the materials you used to build your house). Now let’s say someone else gets stranded on the same island. Do they have to bow down to you because you own the entire island? No. You only have right to that which you worked for. You have a right to your house, the land you farmed, and any fruit you picked up yourself, but the new guy has the right to start farming on any land you haven’t, to build a house with any materials you haven’t used, and to pick up any fruit you didn’t. On the deserted island you only have a right to what you worked for and you can consume it yourself or give it to anyone you wish.
Now moving to actual civilization where all the land is owned by someone and you can’t just mix your labor and property that hasn’t been claimed by because pretty much everything has been claimed (and there are actually laws like prescriptive easements, squatters rights, and homesteading), Locke and the theory of natural rights points out, that you are compensated either in money or by barter for your labor. And for the sake of ease, I will simply refer to money as property as well. So even though you are no longer mixing your labor with something no one owns, you are being compensated for your labor at a rate that you agree to. You have a right to all the property that is a result of your labor. Why? Because your labor is an extension of you, thus your property is an extension of you. Which is why Locke’s three basic natural rights were Life, Liberty and Property (which Jefferson later tied to the point of life, Happiness).***
Let me say that again: You have a right to all the property that is a result of your labor because your labor is an extension of you, making all the property you have earned an extension of you and your person.
But we don’t live in the state of nature, we live in a society, under a social contract. And under the basic theories of Locke we have given up a portion of our rights to maintain the rest (because all it takes is one jerk to turn the state of nature from paradise into a living hell, and for all of its potential, society certainly has more than one jerk in its midst). One of the rights we give a little on is the right to property—we agree that a government must be funded with taxes, which are an imposition on our right to property, but better to give a little to protect the rest than to have none at all. I would argue anything over 10-25% (depending on the level of debt your nation needs to pay off) of your income is tyranny and anyone who wants to take more than that should meet the end of Julius Caesar, Caligula, Richard III, Charles I, and the redcoats armies, but that’s another debate for another time—we all agree that we give up a little of our right to property under the social contract, to maintain the bulk of our property. This will be important later so keep this in mind.
Now how is intellectual property different from normal private property? If you were to buy the argument of the libertarian/anarchist video above they’re not the same at all. The argument seems to be that you are entitled to the property rights that come from your labor but not from your mind. This strikes me as odd because, according to Theory of Natural Rights, property is yours because it has become an extension of you through your labor. I find it hard to believe that the labor of my physical body can make something an extension of me, but the inspiration of my soul and the creativity of my mind and the works thereof are somehow not mine. I have to say that an individual is much more their soul and their mind than they are their body. So why if the work of their body makes something theirs, but the work of their mind isn’t theirs. From the Constitution, to Adam Smith, to arguments of Friedman and Hayek, to the speeches of Atlas Shrugged, well articulated philosophy and understanding of history and human nature to poorly worded intrinsic understanding, people have understood that if you have the right to the results of your body you certainly have a right to the results of your mind. The work of your mind is even more you than the work of your body. And if you have the right to creations from your body you certainly have rights to creations from your mind. In fact before seeing this video, I knew of only one major work in history that valued the works of the mind as lower in value than the works of the body: Das Kapital by Karl Marx. Remind me where that philosophic line leads to. To say you don’t have the rights to the works of your mind is actually worse than anarchy; it is among the most vicious foundations of socialism and collectivism. (This is also part of the liberal ideal that those that work physically are equal or greater than those that work with the mind).
Now the speaker in this video claims that intellectual property rights are intellectually incoherent. But only if you use his 3 part system. Absolute rights, rights created by the government, or no rights at all. What he seems to ignore is what we really have: absolute rights tempered by the needs of the social contract. The social contract does not create rights, it infringes on them here or there so that the bulk of those rights may be saved from the chaos of anarchy. Now taking the traditional view of natural rights, the first view, that intellectual property rights would continue on in perpetuity would actually be correct in the state of nature. In the state of nature your intellectual property rights would be eternal and you could will them to any inheritor you wished or to the public. However because of the social contract, something that is not addressed at all in this video, and actually quite conveniently ignored, we understand and enter into a state where there are certain limitations placed on intellectual property through copyright, trademark, and patent law.
The primary restriction on these rights is time. Copyrights, patents expire after time. Now we know the reason why, so people can build off of other ideas, stand on the shoulders of giants, and further society. No one denies that society is made better by building ideas on each other. But why should intellectual property fade where physical property doesn’t? The answer is quite simple, physical property does fade. Houses decay, land that is not worked produces nothing, business mismanaged fails, and all other forms of physical property decay. If a multi-billionaire leaves their entire fortune to their children, that fortune will not last forever. If the children are idiots they will quickly squander even the most vast fortune. Fortunes are only maintained if the next generation continues to work and continues to produce. All physical items will decay if they are not kept up, and up keep costs money which means either money for up keep will have to be earned, the items will have to be sold, or they will just decay. Physical property decays. Limits are placed on intellectual property not because they are special and should be treated differently from other property rights but so they are actually treated like physical property rights. The parchment Homer wrote the Iliad on has long turned to dust, but the idea still shines as brightly as ever, and thus to make both the physical and intellectual property rights equivalent the intellectual property rights must be given a end date. We can debate what that should be (I like life of the artist + 25 years or 75 years after creation, whichever is longer, for copyright, and 20 years for patents…but that is negotiable). So the argument that intellectual property rights are contradictory is simply intellectually dishonest.
Now the second claim that this video makes against property rights is that to enforce intellectual property rights “You have to interfere with people’s other property rights in real physical objects and to stop them from using those objects as they wish to.” This is just patently false and either a bald face lie or the speaker in the video ain’t that bright. If I want to buy a computer, hack into Windows and rewrite as much code as I want I can do that. And nothing is going to happen to me. I have the right to buy anything I want, make modifications or changes to my property. And no one is going to stop me and no one is going to care…as long as I keep my property in my house. The kind of enforcement that he is talking about here is when you take something that belonged to someone else and either share it or try to resell your new product. In either case you’re offering competition to the original creator. Your cutting into the profits they worked for and are not enjoying any of the benefits of. In a lot of cases people are more than happy to have their patents used by others, so long as they get paid. Tesla was more than happy that Marconi got credit for inventing the radio, which Tesla invented, because Marconi had to pay him on 13 patents. Youtube and fanfic websites are allowed to operate and have so much copy-written material on them because it’s free advertising. It’s only when you start cutting into the profit share or start making money that patent and copyright holders start objecting (and I’ll admit copyright law needs to evolve to balance this fact of free advertising against the claims of infraction of copyright). So it’s not that your property rights are violated, its that your hurting their property rights and they get kind of testy about that. Who’d of thought?
Then of course the speaker of the video makes the claim that you can still have creativity and invention without patents and copyrights. Let’s ignore the fact that Venice and Florence offered a version of patents and copyright in the 1400’s (remind me which cities were the center of the Renaissance in the 1400 and 1500’s) or that England and France have the origins of copyright and patent laws since the 1500’s (again centers of the later Renaissance and Industrial Revolution)…remind me again why the Spanish Empire kind of shriveled up and died intellectually and economically without any kind of those laws (might also have something to do with their love of the gold standard, but again another discussion for another time).
But the inherent claim is that free exchange of ideas leads to better creativity and innovation even if there is no protection of intellectual property. By that argument, fanfic site should have the highest quality literature in the world and Unix and Linux should be the most effective and user friendly systems on Earth. Oh wait. The vast, vast majority of fan fiction just sucks and Linux, while praised as a more stable system, is absolutely worthless to anyone who isn’t a computer geek. Also by that argument Open Office should be a better product than Microsoft Office. Pardon me while I laugh hysterically. Strangely enough you get what you pay for, you would have thought supposed libertarians would have remember this basic point of all free markets, and you can’t pay people for ideas when there isn’t protection for intellectual copyright. You cannot remove the incentive to have ideas and expect that people will still create.
Oh, but wai,t they have a rebuttal that shows an artist can make money even without intellectual property rights.
Their example, Verdi. Since Verdi didn’t have intellectual property rights to fall back on, but still made enough to live off of, this shows you don’t need intellectual property rights. This again conveniently ignores little things, like the fact that Verdi was commissioned (i.e. he got paid upfront) to write several of his operas, and that his operas were quite famous in countries with intellectual property rights which he could fall back on if he had to. It also ignores that before intellectual property rights art existed only when the artist was paid by a patron, and that almost all scientific advancement for most of the dark ages was only in military science, because people were actually paid for that. It also ignores the problem for writers. A musician like Verdi could make money as a performance artist. A writer can’t. If there are no intellectual property rights, then when a writer publishes a book a publisher could theoretically just take the book and reprint it without paying the author and the author would have no recourse (see the history of Google Books)…it should come as no shock that as the patronage system died out the only place you found a lot of writers is in nations that had copyright laws.
One final point. If this video is supposed to be from a libertarian group then they should believe in liberty and capitalism (let’s ignore they already have given up on capitalism as capitalism cannot possibly operate without intellectual property rights). And as such they must believe in the sacrosanct nature of contract law (the current administration may not believe it’s sacrosanct, or even vaguely relevant, but any intelligent human understands that a contract is a contract is a contract). As such, many contracts legally include nondisclosure agreements. Without intellectual property rights I can almost guarantee you that every book, every movie, every album will come with a 20 page boiler plate contract that states ‘by buying this product you agree to not share…blah, blah, blah” having basically the same effect as copyright but taking up much more costs in court time as companies will have to exponentially increase prosecutions for contract violation and the fact that there will not be a standard (like copyright law is) so each contract will be slightly different and the merits of each judged individually. Yes, because I want a system that creates more lawsuits, I’m sure that will be wonderful for the economy.
Yes SOPA and PIPA and Disney’s efforts to keep Steamboat Willie under copyright are bad laws. Yes we need to rewrite things to stop patent trolls from taking advantage of the fact we haven’t updated the system of patent to account for the complexities and realities of the modern technology. Yes we need to understand that the internet has inherently loosened the control over what used to be strictly controlled copy-written items but with the counter benefit of free advertising. Yes, there are a myriad of things we need to adjust. The system needs correction: we need to reduce the length of time for copyright, to make patents more logical, to stop giving special considerations to fields that don’t deserve it and stop regulating the patents in certain fields out of existence. And Tort reform, we need tort reform to get the companies to stop suing everyone for even the slightest unintended infraction of copyright or patent law. But just because the system needs work and we need legal reform is not a reason to just do away with the natural rights of property to the creations of your mind and soul. The argument of these videos are that because the system is broken we should just do away with everything—throw the baby, the crib, and that entire nursery out with the bath water.
Intellectual property is the heart and soul of capitalism and without capitalism there is no liberty. So Learn Liberty should learn what liberty is based on, things like intellectual property rights.
*Yes I will fully admit that the social conservative wing does not understand this part and that government should not be used to implement these social constraints.
**Whom I usually like, but in this case are out of their gourd.
***Now one last caveat that was more applicable in Locke’s time than in ours. Locke stated that there is a limit to how much you could own, that limit being you only had the right to own what you could use. For instance, let’s say a person could only farm 30 acres, then they had a right to only 30 acres unless they were willing to hire people to help them farm anything above that 30. This is a distinction that really only relevant in Locke’s time because with the advent of capitalism very little isn’t used. That land you own but don’t do anything with isn’t wasted, it’s collateral for future projects. That money sitting in the bank isn’t wasted, it is being used by the bank to make loans. With the advent of capitalism and investment nothing really is lies fallow, resources may not be used wisely but next to nothing is deliberately wasted. Yes I guess there could be a case of someone buying up food just to let it rot, but first I don’t think you’ll find many people that insane who have the capital to do that (at least outside of our government), and second any law you could make to prevent people from not wasting resources would be so impossible to justly enforce that it would likely cause more harm than the evil it wished to stop. o