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The
Libertarian Case
Against Intellectual Property Rights
by Roderick T. Long
Outline
A Dispute Among Libertarians
The Historical Argument
The Ethical Argument
The Economic Argument
The Information-Based Argument
First Tolkien Story
Alternatives to Intellectual Property Rights: Some
Formulations
Second Tolkien Story
-- Disclaimer
It
would be interesting to discover how far a seriously critical view of the
benefits to society of the law of copyright ... would have a chance of being
publicly stated in a society in which the channels of expression are so largely
controlled by people who have a vested interest in the existing situation.
— Friedrich A. Hayek,
"The Intellectuals and Socialism"
A Dispute Among
Libertarians
The status of
intellectual property rights (copyrights, patents, and the like) is an issue
that has long divided libertarians. Such libertarian luminaries as Herbert
Spencer, Lysander Spooner, and Ayn Rand have been strong supporters of
intellectual property rights. Thomas Jefferson, on the other hand, was
ambivalent on the issue, while radical libertarians like Benjamin Tucker in the
last century and Tom Palmer in the present one have rejected intellectual
property rights altogether.
When libertarians of the
first sort come across a purported intellectual property right, they see one
more instance of an individual's rightful claim to the product of his labor. When
libertarians of the second sort come across a purported intellectual property
right, they see one more instance of undeserved monopoly privilege granted by
government.
I used to be in the
first group. Now I am in the second. I'd like to explain why I think
intellectual property rights are unjustified, and how the legitimate ends
currently sought through the expedient of intellectual property rights might be
secured by other, voluntary means.
The Historical
Argument
Intellectual property
rights have a tainted past. Originally, both patents and copyrights were grants
of monopoly privilege pure and simple. A printing house might be assigned a
"copyright" by royal mandate, meaning that only it was allowed to
print books or newspapers in a certain district; there was no presumption that
copyright originated with the author. Likewise, those with political pull might
be assigned a "patent," i.e., an exclusive monopoly, over some
commodity, regardless of whether they had had anything to do with inventing it.
Intellectual property rights had their origin in governmental privilege and
governmental protectionism, not in any zeal to protect the rights of creators
to the fruits of their efforts. And the abolition of patents was one of the rallying
cries of the 17th-century Levellers (arguably the first libertarians).
Now this by itself does
not prove that there is anything wrong with intellectual property rights as we
know them today. An unsavory past is not a decisive argument against any phenomenon;
many worthwhile and valuable things arose from suspect beginnings. (Nietzsche
once remarked that there is nothing so marvelous that its past will bear much
looking into.) But the fact that intellectual property rights originated in
state oppression should at least make us pause and be very cautious before
embracing them.
The Ethical Argument
Ethically, property
rights of any kind have to be justified as extensions of the right of
individuals to control their own lives. Thus any alleged property rights that
conflict with this moral basis — like the "right" to own slaves — are
invalidated. In my judgment, intellectual property rights also fail to pass
this test. To enforce copyright laws and the like is to prevent people from
making peaceful use of the information they possess. If you have acquired the
information legitimately (say, by buying a book), then on what grounds can you
be prevented from using it, reproducing it, trading it? Is this not a violation
of the freedom of speech and press?
It may be objected that
the person who originated the information deserves ownership rights over it. But
information is not a concrete thing an individual can control; it is a universal,
existing in other people's minds and other people's property, and over these
the originator has no legitimate sovereignty. You cannot own information
without owning other people.
Suppose I write a poem,
and you read it and memorize it. By memorizing it, you have in effect created a
"software" duplicate of the poem to be stored in your brain. But
clearly I can claim no rights over that copy so long as you remain a free and
autonomous individual. That copy in your head is yours and no one else's.
But now suppose you
proceed to transcribe my poem, to make a "hard copy" of the
information stored in your brain. The materials you use — pen and ink — are
your own property. The information template which you used — that is, the
stored memory of the poem — is also your own property. So how can the hard copy
you produce from these materials be anything but yours to publish, sell, adapt,
or otherwise treat as you please?
An item of intellectual
property is a universal. Unless we are to believe in Platonic Forms, universals
as such do not exist, except insofar as they are realized in their many
particular instances. Accordingly, I do not see how anyone can claim to own,
say, the text of Atlas Shrugged unless that amounts to a claim to own
every single physical copy of Atlas Shrugged. But the copy of Atlas
Shrugged on my bookshelf does not belong to Ayn Rand or to her estate. It
belongs to me. I bought it. I paid for it. (Rand presumably got royalties from
the sale, and I'm sure it wasn't sold without her permission!)
The moral case against
patents is even clearer. A patent is, in effect, a claim of ownership over a
law of nature. What if Newton had claimed to own calculus, or the law of
gravity? Would we have to pay a fee to his estate every time we used one of the
principles he discovered?
"... the patent
monopoly ... consists in protecting inventors ... against competition for a
period long enough to extort from the people a reward enormously in excess of
the labor measure of their services, — in other words, in giving certain people
a right of property for a term of years in laws and facts of Nature, and the
power to exact tribute from others for the use of this natural wealth, which
should be open to all."
(Benjamin Tucker, Instead
of a Book, By a Man Too Busy to Write One: A Fragmentary Exposition of
Philosophical Anarchism (New York: Tucker, 1893), p. 13.)
Defenders of patents
claim that patent laws protect ownership only of inventions, not of discoveries.
(Likewise, defenders of copyright claim that copyright laws protect only implementations
of ideas, not the ideas themselves.) But this distinction is an artificial one.
Laws of nature come in varying degrees of generality and specificity; if it is
a law of nature that copper conducts electricity, it is no less a law of nature
that this much copper, arranged in this configuration, with these other
materials arranged so, makes a workable battery. And so on.
Suppose you are trapped
at the bottom of a ravine. Sabre-tooth tigers are approaching hungrily. Your
only hope is to quickly construct a levitation device I've recently invented. You
know how it works, because you attended a public lecture I gave on the topic. And
it's easy to construct, quite rapidly, out of materials you see lying around in
the ravine.
But there's a problem. I've
patented my levitation device. I own it — not just the individual model I
built, but the universal. Thus, you can't construct your means of escape
without using my property. And I, mean old skinflint that I am, refuse to give
my permission. And so the tigers dine well.
This highlights the
moral problem with the notion of intellectual property. By claiming a patent on
my levitation device, I'm saying that you are not permitted to use your own
knowledge to further your ends. By what right?
Another problem with
patents is that, when it comes to laws of nature, even fairly specific ones,
the odds are quite good that two people, working independently but drawing on
the same background of research, may come up with the same invention
(discovery) independently. Yet patent law will arbitrarily grant exclusive
rights to the inventor who reaches the patent office first; the second
inventor, despite having developed the idea on his own, will be forbidden to
market his invention.
Ayn Rand attempts to
rebut this objection:
"As an objection to
the patent laws, some people cite the fact that two inventors may work
independently for years on the same invention, but one will beat the other to
the patent office by an hour or a day and will acquire an exclusive monopoly,
while the loser's work will then be totally wasted. This type of objection is
based on the error of equating the potential with the actual. The fact that a
man might have been first, does not alter the fact that he wasn't. Since the
issue is one of commercial rights, the loser in a case of that kind has to
accept the fact that in seeking to trade with others he must face the
possibility of a competitor winning the race, which is true of all types of
competition."
(Ayn Rand, Capitalism: The Unknown Ideal (New York: New American
Library, 1967), p. 133.)
But this reply will not
do. Rand is suggesting that the competition to get to the patent office first
is like any other kind of commercial competition. For example, suppose you and
I are competing for the same job, and you happen to get hired simply because
you got to the employer before I did. In that case, the fact that I might
have gotten there first does not give me any rightful claim to the job. But
that is because I have no right to the job in the first place. And once
you get the job, your rightful claim to that job depends solely on the fact
that your employer chose to hire you.
In the case of patents,
however, the story is supposed to be different. The basis of an inventor's
claim to a patent on X is supposedly the fact that he has invented X.
(Otherwise, why not offer patent rights over X to anyone who stumbles into the
patent office, regardless of whether they've ever even heard of X?) Registering
one's invention with the patent office is supposed to record one's
right, not to create it. Hence it follows that the person who arrives at
the patent office second has just as much right as the one who arrives first —
and this is surely a reductio ad absurdum of the whole notion of patents.
The Economic Argument
The economic case for
ordinary property rights depends on scarcity. But information is not,
technically speaking, a scarce resource in the requisite sense. If A uses some
material resource, that makes less of the resource for B, so we need some legal
mechanism for determining who gets to use what when. But information is not
like that; when A acquires information, that does not decrease B's share, so
property rights are not needed.
Some will say that such
rights are needed in order to give artists and inventors the financial
incentive to create. But most of the great innovators in history operated
without benefit of copyright laws. Indeed, sufficiently stringent copyright
laws would have made their achievements impossible: Great playwrights like Euripides
and Shakespeare never wrote an original plot in their lives; their masterpieces
are all adaptations and improvements of stories written by others. Many of our
greatest composers, like Bach, Tchaikovsky, and Ives, incorporated into their
work the compositions of others. Such appropriation has long been an integral
part of legitimate artistic freedom.
Is it credible that
authors will not be motivated to write unless they are given copyright
protection? Not very. Consider the hundreds of thousands of articles uploaded
onto the Internet by their authors everyday, available to anyone in the world
for free.
Is it credible that
publishers will not bother to publish uncopyrighted works, for fear that a
rival publisher will break in and ruin their monopoly? Not very. Nearly all
works written before 1900 are in the public domain, yet pre-1900 works are
still published, and still sell.
Is it credible that
authors, in a world without copyrights, will be deprived of remuneration for
their work? Again, not likely. In the 19th century, British authors had no
copyright protection under American law, yet they received royalties from
American publishers nonetheless.
In his autobiography,
Herbert Spencer tells a story that is supposed to illustrate the need for
intellectual property rights. Spencer had invented a new kind of hospital bed. Out
of philanthropic motives, he decided to make his invention a gift to mankind
rather than claiming a patent on it. To his dismay, this generous plan
backfired: no company was willing to manufacture the bed, because in the
absence of a guaranteed monopoly they found it too risky to invest money in any
product that might be undercut by competition. Doesn't this show the need for
patent laws?
I don't think so. To
begin with, Spencer's case seems overstated. After all, companies are
constantly producing items (beds, chairs, etc.) to which no one holds
any exclusive patent. But never mind; let's grant Spencer's story without
quibbling. What does it prove?
Recall that the
companies who rejected Spencer's bed in favor of other uses for their capital
were choosing between producing a commodity in which they would have a monopoly
and producing a commodity in which they would not have a monopoly. Faced
with that choice, they went for the patented commodity as the less risky option
(especially in light of the fact that they had to compete with other companies
likewise holding monopolies). So the existence of patent laws, like any other
form of protectionist legislation, gave the patented commodity an unfair
competitive advantage against its unpatented rival. The situation Spencer
describes, then, is simply an artifact of the patent laws themselves! In a
society without patent laws, Spencer's philanthropic bed would have been at no
disadvantage in comparison with other products.
The Information-Based
Argument
Though never justified,
copyright laws have probably not done too much damage to society so far. But in
the Computer Age, they are now becoming increasingly costly shackles on human
progress.
Consider, for instance,
Project Gutenberg, a marvelous non-profit volunteer effort to transfer as many
books as possible to electronic format and make them available over the
Internet for free. (For information about Project Gutenberg, contact the
project director, Michael S. Hart, at hart@vmd.cso.uiuc.edu.) Unfortunately,
most of the works done to date have been pre-20th-century — to avoid the
hassles of copyright law. Thus, copyright laws today are working to restrict
the availability of information, not to promote it. (And Congress, at the
behest of the publishing and recording industries, is currently acting to
extend copyright protection to last nearly a century after the creator's death,
thus ensuring that only a tiny fraction of the information in existence will be
publicly available.)
More importantly, modern
electronic communications are simply beginning to make copyright laws unenforceable;
or at least, unenforceable by any means short of a government takeover of the
Internet — and such a chilling threat to the future of humankind would clearly
be a cure far worse than the disease. Copyright laws, in a world where any
individual can instantaneously make thousands of copies of a document and send
them out all over the planet, are as obsolete as laws against voyeurs and
peeping toms would be in a world where everyone had x-ray vision.
First Tolkien Story
Here's a story that
illustrates some of the needless irritation that intellectual property laws can
cause.
Several years ago the
avant-garde film animator Ralph Bakshi decided to make a movie of J. R. R.
Tolkien's classic fantasy trilogy The Lord of the Rings. Or rather, he
decided to split the trilogy into two movies, since the work is really too long
to fit easily into a single film.
So Bakshi started off
with Lord of the Rings (Part One). This movie covered the first volume
of the trilogy, and part of the second volume. The second movie was to have
covered the rest of the second volume, and then the whole of the third volume. To
make the first movie, then, Bakshi needed to buy the rights to the first two
volumes, and this is what he (or, presumably, his studio) did.
But Bakshi never got
around to making the second movie (probably because the first movie turned out
to be less successful financially than had been anticipated). Enter
Rankin-Bass, another studio. Rankin-Bass had made an animated TV-movie of
Tolkien's earlier novel The Hobbit, and they were interested in doing
the same for the second part of Lord of the Rings, left unfilmed by
Bakshi.
But there was a problem.
Bakshi's studio had the rights to the first two volumes of the trilogy. Only
the rights to the third volume were available. So Rankin-Bass' sequel (released
as The Return of the King) ended up, of necessity, covering only the
third volume. Those events from the second volume that Bakshi had left unfilmed
were simply lost. (Not even flashbacks to events in the first two volumes were
permitted — although flashbacks to The Hobbit were okay, because
Rankin-Bass had the rights to that.)
Video catalogues now
sell The Hobbit, The Lord of the Rings, and The Return of the
King as a unified package. But viewers unfamiliar with the books will be a
bit puzzled. In the Bakshi film, the evil wizard Saruman is a looming force to
be reckoned with; in the Rankin-Bass sequel, he is not even mentioned. Likewise,
at the end of the Bakshi film, Frodo, Sam, and Gollum are traveling together;
at the beginning of the Rankin-Bass sequel we find them split up, without explanation.
The answers lie in the unfilmed portion of the second volume, which deals with
Saruman's defeat, Gollum's betrayal of Frodo, Sam's battle with Shelob, and
Frodo's capture by the Orcs. Not unimportant events, these. But thanks to
intellectual property laws, the viewer is not allowed to know about them.
Is this a catastrophe? I
suppose not. The æsthetic unity and continuity of a work of art was mangled,
pursuant to the requirements of law. But it was just an animated TV-movie. So
what?
So what, perhaps. But my
story does serve to cast doubt on the idea that copyright is a bulwark of
artistic expression. When a work of art involves reworking material created by
others (as most art historically has), copyright laws can place it in a
straitjacket.
Alternatives to
Intellectual Property Rights: Some Formulations
I may have given the
impression, thus far, that intellectual property rights serve no useful
function whatever. That is not my position. I think some of the ends to which
copyrights and patents have been offered as the means are perfectly legitimate.
I believe, however, that those ends would be better served by other means.
Suppose I pirate your
work, put my name on it, and market it as mine. Or suppose I revise your work
without your permission, and market it as yours. Have I done nothing wrong?
On the contrary, I have
definitely committed a rights-violation. The rights I have violated, however,
are not yours, but those of my customers. By selling one person's work as
though it were the work of another., I am defrauding those who purchase
the work, as surely as I would be if I sold soy steaks as beef steaks or vice
versa. All you need to do is buy a copy (so you can claim to be a customer) and
then bring a class-action suit against me.
There are other legal
options available to the creators of intellectual products. For example, many
software manufacturers can and do place copy-protection safeguards on their
programs, or require purchasers to sign contracts agreeing not to resell the
software. Likewise, pay-TV satellite broadcasters scramble their signal, and
then sell descramblers.
None of these techniques
is foolproof, of course. A sufficiently ingenious pirater can usually figure
out how to get around copy protections or descramble a signal. And
conditional-sale contracts place no restriction on third-party users who come
by the software in some other way. Still, by making it more difficult to pirate
their intellectual products, such companies do manage to decrease the total
amount of piracy, and they do stay in business and make profits.
But what if I do go
ahead and market your work without your permission, and without offering you
any share of the profits? Is there nothing wrong with this? Can nothing be done
about this?
In the case described, I don't think what I've done is unjust. That is, it's not a violation of anyone's rights. But it's tacky. Violating someone's rights is not the only way one can do something wrong; justice is not the only virtue.
But justice is the only virtue that can be legitimately enforced. If I profit from pirating your work, you have a legitimate moral claim against me, but that claim is not a right. Thus, it cannot legitimately use coercion to secure compliance. But that doesn't mean it can't be enforced through other, voluntary methods.
A good deal of protection for the creators of intellectual products may be achieved through voluntary compliance alone. Consider the phenomenon of shareware, in which creators of software provide their products free to all comers, but with the request that those who find the program useful send along a nominal fee to the author. Presumably, only a small percentage of shareware users ever pay up; still, that percentage must be large enough to keep the shareware phenomenon going.
There are more organized and effective ways of securing voluntary compliance, however. I have in mind the strategy of boycotting those who fail to respect the legitimate claims of the producers. Research conducted by libertarian scholar Tom Palmer has turned up numerous successful instances of such organized boycotts. In the 1930's, for example, the Guild of Fashion Originators managed to protect dress styles and the like from piracy by other designers, without any help from the coercive power of government.
A voluntary boycott is actually a much safer tool than government for protecting the claims of intellectual producers, because, in the course of trying to strike a pragmatic balance between the economic power of producers and the economic power of consumers, a private effort is more likely than a government monopoly freed from market incentives to strike an analogous balance between the legitimate moral claims of the two groups — the producers' moral claim to remuneration, and the consumers' moral claim to easily accessible information.
Something more formal can easily be imagined. In the late Middle Ages a voluntary court system was created by merchants frustrated with the inadequacies of governmentally-provided commercial law. This system, known as the Law Merchant ("law" being the noun and "merchant" the adjective), enforced its decisions solely by means of boycott, and yet it was enormously effective. Suppose producers of intellectual products — authors, artists, inventors, software designers, etc. — were to set up an analogous court system for protecting copyrights and patent rights — or rather, copyclaims and patent claims (since the moral claims in question, though often legitimate, are not rights in the libertarian sense). Individuals and organizations accused of piracy would have a chance to plead their case at a voluntary court, but if found guilty they would be required to cease and desist, and to compensate the victims of their piracy, on pain of boycott.
What if this system went
too far, and began restricting the free flow of information in the same
undesirable ways that, I've argued, intellectual property laws do?
This is certainly a
possibility. But I think the danger is much greater with coercive enforcement
than with voluntary enforcement. As Rich Hammer likes to point out: ostracism
gets its power from reality, and its power is limited by reality. As a
boycotting effort increases in scope, the number and intensity of frustrated
desires on the part of those who are being deprived by the boycott of something
they want will become greater. As this happens, there will also be a
corresponding increase in the number of people who judge that the benefits of
meeting those desires (and charging a hefty fee to do so) outweigh the costs of
violating the boycott. Too strenuous and restrictive a defense of copyclaims
will founder on the rock of consumer preferences; too lax a defense will
founder on the rock of producer preferences.
Second Tolkien Story
Let me close with a second story about Tolkien and his famous trilogy. The first edition of The Lord of the Rings to be published in the United States was a pirated edition from Ace Books. For reasons which I now forget, Tolkien could not take legal action against Ace. But when Ballantine came out with its own official author-approved American edition of The Lord of the Rings, Tolkien started a campaign against the Ace edition. The Ballantine edition was released with a notice from Tolkien in a green box on the back cover stating that this was the only authorized edition, and urging any reader with respect for living authors to purchase no other. Moreover, every time he answered a fan letter from an American reader, Tolkien appended a footnote explaining the situation and requesting that the recipient spread the word among Tolkien fans that the Ace edition should be boycotted.
Although the Ace edition was cheaper than the Ballantine, it quickly lost readers and went out of print. The boycott was successful.
It might be objected
that Tolkien devotees tend to be more fanatical than the average readers, and
so such a strategy of boycott could not be expected to succeed in ensuring such
loyalty generally. True enough. But on the other hand, Tolkien's boycott was entirely
unorganized; it simply consisted of a then-obscure British professor of
mediæval language and literature scribbling hand-written responses to fan
letters. Think how effective an organized boycott might have been!
This
article was published in the Autumn 1995 issue of Formulations
formerly
a publication of the Free Nation Foundation,
now
published by the Libertarian Nation Foundation
<http://libertariannation.org/>