It’s not unusual to hear helicopters over and around my house (I live near, and on the approach path to, St. Louis’s main airport), so I didn’t notice the US Department Homeland Security’s major terrorist roundup only a few blocks away until I saw it on the news late last week.
Oh, wait, did I say “terrorist?” Sorry. Make that “entrepreneur.”
Frison Flea Market has long been well known as the local go-to spot for inexpensive shoes, handbags, DVDs and so forth. It’s open — or was, anyway — on weekends. For a small fee, customers gain entrance to a huge grotto of booths with vendors hawking everything from refurbished computers to old comic books … to apparently new products at incredibly low prices.
How can those prices be so low? Well, the vendors somehow forgot to pay their rent. Not the flea market booth rent, but the rent to Nike, Gucci, Disney and other politically connected companies on whose behalf Congress has created a fiction called “intellectual property” which they can charge rent on, with the US Department of Homeland Security acting as collector (or evictor) as needed.
This arrangement is so transparently silly that it has to be covered up with additional fictions.
For example, the fiction that if you have something Universal Studios doesn’t want you to have, it is “stolen,” even if their copies of it haven’t gone missing.
And the fiction that “intellectual property theft” is a primary vector for the finance of “international terrorism” (if you want to see a real vector of that type, check out IRS Form 1040 — killer drones aren’t free, you know).
And so it came to pass that last Thursday morning, a convoy of government vehicles (with air support — or maybe that was just a conveniently alerted “news” chopper) pulled up to Frison Flea Market, disgorging a phalanx of black-clad, armed agents, who then proceeded to steal … er, “seize” … everything in sight.
Because after all, if your sister can just wander down to Frison Flea Market and buy a purse for $20 without paying an additional $380 in rent on the word “Coach,” the terrorists have won, right?
To break down the absurdity of all this, a real-life example:
The weekend before the raid, my wife and son shelled out several tens of dollars to catch Prometheus on the big screen. The following day, they visited Frison Flea Market, and noticed a bootleg DVD of the movie already for sale in the $5 range. Pretty quick, huh? I have no idea whether it was burned from a print of the movie, or just captured on hand-held camera in a theater. But anyway, there it was.
Standard “intellectual property” justifications for making this bootlegging illegal go as follows: If anyone can buy a cheap bootleg DVD, they won’t see the movie in theaters, or pay full price for the “legitimate” DVD release. The bootleggers are obviously STEALING the movie studio’s profits.
But does anyone honestly believe that people who were hot and bothered to shell out $10 a ticket and pay for expensive popcorn to get the big-screen experience would have settled for watching it on DVD — possibly in inferior form — at home? So much so that they would schlep down to the flea market for the privilege? Or that a real fan would grab the $5 bootleg instead of the superfrap extended edition in the molded tin case, with 58-page color liner notes?
Chances are that bootleg cost the filmmakers, studio, distributor and theater not one thin dime in “lost revenues.” In fact, if the movie is any good and the bootleg is of inferior quality, its mere existence probably boosts sales of the “real” DVD — and ticket sales to the sequel — by introducing people to the movie who wouldn’t have considered paying $19.99 for something they hadn’t had a look at first.
Let’s put this thing on the slippery slope and see how far down it rolls. When you see a movie, you remember it. Or, to put it a different way, a copy of it exists in your brain. But hey — it’s copyrighted. Stop, thief! And if you and your kids go home, start horsing around, and re-enact a scene from the film, Katie bar the door (especially you didn’t rent that swoosh on your tennis shoes) … you’re reproducing it! Bootleggers! Queue SWAT.
If my assessment of “intellectual property” seems harsh, well, I’ve tried to keep an open mind over the years, asking those who favor it to offer any argument for it that doesn’t boil down to “because we waaaant it that way … and we and our government collection agents have guns.”
So far, no takers. But I’ll keep listening.
I'll take your offer.
People pay extra for a Coach purse because Coach has built up a brand and the customers like the brand as much as owning a purse.
Those who scoff at intellectual property want to nullify the intellectual labor and financial investment that went into building the brand.
Now you may say that the branding of the brand is absurd but then why do people pay extra for name-brand goods as opposed to generics?
P. S. I have a critique in my mind of how anarchists define authority and how this is problematic in abolishing authority (in brief, a mob can enforce its will by resorting to violence like the formal institutions focused on by anarchists such as the corporations and the State). If C4SS accepts, I could elaborate, send in the critique and see the rejoinder that C4SS chooses to publish.
People who buy knockoff gucci purses or Rolex watches are not defrauded or victimized. They know what they are getting. There is no justification for trademark law.
My recent post Stones take Lyric from Grieg, Copyright
http://blog.ted.com/2010/05/25/lessons_from_fa/
"Copyright law’s grip on film, music and software barely touches the fashion industry … and fashion benefits in both innovation and sales, says Johanna Blakley. At TEDxUSC 2010, she talks about what all creative industries can learn from fashion’s free culture."
"People pay extra for a Coach purse because Coach has built up a brand and the customers like the brand as much as owning a purse. "
And when people pay less cash for a bootleg, nothing is stolen from anyone. Case closed, story over…
The issue is whether fraud was committed. If the seller leads the buyer to believe that he is buying the genuine purse, or that proceeds of the DVD are going to those who made the movie on it, then a crime (fraud) was committed. Otherwise it is up to the morality of the buyer to decide whether to (for instance) buy another copy of the DVD later that will result in money going to the filmmakers. (Or perhaps if he or she has already paid big money to see it in a cinema he/she will decide that it isn't necessary to pay for a full-price DVD, especiallyif he/she is just interested in re-watching one or two particularly funny scenes.)
I have long believed (especially if we lived in a libertarian — and thus prosperous — society) that enough people will make the decision to support filmmakers (and even purse designers) that (so long as those who commit actual fraud are prosecuted) things will work out fine without the need for explicit copyright law.
In fact, my first essay on the subject was written so long ago (late 80's I think) that the title was "DO Copy that Floppy". (Alas, being in the pre-internet era it was never published, even on a blog.) In essence, the essay made the case that it is actually more moral for a casual home user to NOT pay the exhorbitant prices Microsoft wants for their software (DOS, Word, Win 3.1 [!]) and instead copy the floppy and simply send (anonymously) a lesser amount to Microsoft.
Of course there were many back then (and still are) in the libertarian community (and of course outside it) who considered that stealing. But I never did, for basically the same reasons Thomas mentions in his above essay.
Needless to say I got a lot of flack for my views, though it was nothing compared to the harsh rebukes I got in the 90s when I dared (in an essay on an libertarian email list) to write an essay talking about how bad and anti-libertarian most patent laws is. (Fortunately in the last couple of years others have started to post articles stating the same thing.)
The fundamental thing I've learned is this: When it comes to libertarian engineers (including computer programmers), they are engineers (who want to profit from government oppression) first, and libertarians second. And since there are so many engineers and computer programmers in the libertarian party/community (because they make more money than the average person and want to keep the government from taking it from them via taxes), it makes it very difficult for the libertarian community to have a truly libertarian stance on patents and copyrights.
Fire away! (I'm used to it.)
Okay, here's my beef with the anti-IP position: It denigrates the moral value of intellectual labor relative to physical labor. If I spend a week building a bicycle, I can ride it around town, and hundreds or thousands of people can see it, but it remains my bicycle and mine alone to keep or to sell. But if I spend a week making a digital painting of a bicycle, then according to the anti-IP folks, it stops being my painting exclusively as soon as someone else sees it and effortlessly makes a copy.
Kinsella and others have said that I am relying on the discredited Labor Theory of Value, but I am not. I am relying on the Labor Theory of Property, which we get from John Locke, and is the basis for the propertarian aspect of the libertarian philosophy. While propertarianism honors the relationship of a creator to her creations, anti-IP denies that relationship, and tells artists, writers and engineers that they are better off spending their time masturbating, than laboring to create objects that other people may value.
Scott,
You write:
"If I spend a week building a bicycle, I can ride it around town, and hundreds or thousands of people can see it, but it remains my bicycle and mine alone to keep or to sell. But if I spend a week making a digital painting of a bicycle, then according to the anti-IP folks, it stops being my painting exclusively as soon as someone else sees it and effortlessly makes a copy."
Um, no. The painting you made is your painting. Copying it doesn't take it away from you. You still have it. It's right there, wherever you put it.
If someone makes a copy of it, well, you just referred to the Lockean Labor Theory of Property. They made that copy with their labor. The fact that your original labor made it cheaper for them to make the copy is interesting, and I agree that it may have additional implications, but I have yet to see those implications successfully turned into an argument for a legitimate property claim by you on what they made.
Does it suck for the original creator of something that he only gets temporary complete competitive advantage from being its original creator (absent the state, that complete competitive advantage would last only until others copied it, although there would be lasting competitive advantages in e.g. reputation, sequel credibility, etc. as well; IP law merely attempts to extend that temporary complete advantage to some set period of years at gunpoint)? I suppose it does suck in some degree for the creator, but only in the same way that it sucks for anyone else who might face competition.
"While propertarianism honors the relationship of a creator to her creations, anti-IP denies that relationship, and tells artists, writers and engineers that they are better off spending their time masturbating, than laboring to create objects that other people may value."
Actually, the opposite. Anti-IP tells artists, writers and engineers that they have to find ways to voluntarily exchange what they create for value rather than just having Uncle Sugar sic his gunmen on all would-be competitors.
While I am not a consequentialist per se, it seems to me that one good way of evaluating a moral argument is how the claimed moral value expresses in the real world. If it produces obvious contradictions, then there's probably a problem with the argument for it.
Intellectual property law has functioned in the real world in a somewhat similar manner to fiat currency. That is, its purveyors can get away with it for awhile, but sooner or later the scheme has consequences. The bubble pops, and no amount of huffing and puffing will cause it to re-inflate, no matter how badly those who benefit from its continued inflation want it to. The Internet just happens to have been the needle that popped the IP bubble. It's been 300 years since the Statute of Anne. That's a pretty good run for any protection racket.
A bit of follow-up on this (which I wrote in my previous comment):
Scott's very own Big Head Press is a great example of artists doing just that.
BHP's comics appear in serial form online. If you want a very nice printed edition, one's available at a reasonable price.
In practice, enforcing a property rights claim against someone for reproducing the digital comics, or drumming up their own print edition, without permission would be burdensome and expensive even given existing "intellectual property" law.
Fortunately, BHP will likely never find itself in the position of thinking they need to do so. They've created a reputation for themselves, and a connection with their readers under which it is clear that the only way to keep getting those comics is to financially compensate the original authors.
Sure, someone COULD copy the digital comics and/or run off a bootleg print edition — and almost certainly get away with it — but what would it profit them? The real thing is available free online or for a reasonable price in print already, and the best way to keep the real thing coming is to patronize the real creator, so that's what the readers do.
A few years ago, a number of L. Neil Smith's fans pooled their money to pay him to write his next novel. I suppose it might have been cheaper to find a hack and pay him less to write something "like" L. Neil Smith would have written, but those fans didn't want something "like" L. Neil Smith. They wanted the real thing, and Smith had successfully positioned himself in terms of reputation and presence to make it difficult to fool people into believing a fake.
Smith in particular has written at length in the past about the consumptive illnesses of the publishing industry — how hard it is to get into that walled garden, how crappy it is inside, and what a pain in the ass it is to get out once you're in.
The revenue source that kept the sewage flowing through and from that garden for so long was the state-created fiction of "intellectual property." Having the state at one's beck and call to enforce that fiction didn't serve authors. It served those who had accumulated enough capital to buy a printing press and hire a lobbyist so that they were in a protected position from which to milk those authors. And when the printing presses suddenly became ultra-cheap, the recourse was: Call in the gun-toting thugs to shut down those cheap presses. Not to protect the creators, but to protect the milkers.
None of the above is a moral argument for or against intellectual property, of course. But in consequential terms, it is an indication that maybe there's something wrong with the theory. When you find yourself at the bottom of a slippery slope, it's worth considering whether or not the theory you rolled down on was a good one.
Scott:
This is now how we figure out what property rights should be respected: by saying that given view 'denigrates the moral value of intellectual labor." I mean is the goal of property rights to avoid "denigrating" "moral values"? This is all a nonrigorous, vague, loosey-goosey way of arguing.
" If I spend a week building a bicycle, I can ride it around town, and hundreds or thousands of people can see it, but it remains my bicycle and mine alone to keep or to sell. But if I spend a week making a digital painting of a bicycle, then according to the anti-IP folks, it stops being my painting exclusively as soon as someone else sees it and effortlessly makes a copy."
If you are talking about the physical copy of the painting, then it is still your property after I duplicate it. If you mean the pattern of information that represents what the painting looks like, you never owned that in the first place. You only owned your body, your canvas, your raw materials; what arrangement or pattern you choose to re-shape it into is up to you but you do not own the way-it-is-arranged.
RE Locke:
The problem is you believe in ownership of labor and even ownership of value, or as Randians crankishly refer to it, "values". Of course value is not some ownable substance. Value is relational: it is how a given human actor regards an object or end of action; it is demonstrated in action, as Mises says, or as Rand says, values are things man *acts* to gain or keep. But just b/c you "value" your painting, or some customers might value the end of "having a copy of that painting" does not mean you own the value. This is the same reason reputations are not ownable property–a reputation is just what others think about you. You don't own wht they think. And you don't own how others value your property. You don't have a property right in the value of things you own, either. If your neighbor paints his house an ugly color it might make the market value of your house fall. Too bad. You didn't have a property right in that value since to have that, you'd have to have a property right in your neighbor's house to control what he does with it.
The labor theory of property acquisition is confused. It holds that the general principle is that people own what they "create" by "mixing their labor with it." Thus, you own a sword that you create b/c you mixed your labor with it; you own a piece of land you homestead that you mix your labor iwth; you own an apple that you used your labor to pluck; and you own "ideas" and other intangible things like "reputations" that you "create" with your labor, these things that "have value' or "are values." this is all horribly confused. First, you do not literally create land; you use your labor (or action) to possess and use it and set up visible borders that notify others of your first claim to it. You don't create a sword: you first homestead iron ore, and other material, and use your effort and intelligence to act on it to re-shape it into a more valuable shape. You own the sword because you already owned the scarce materials that go into it.
So it is an utter confusion that Locke's homesteading argument show that you own "whatever you create" or "labor on" that "has value." It is incorrect that 'creation" is a source of property rights. It is NOT. Most people would say there are 3 ways you can acquire property rights: by homesteading (finding something unowned and using it first in a way that sets up borders); by contract; or by creation. But the latter is not a source of rights at all. Creation is a means of increasing wealth, by creating a new arrangement of existing property into more useful or valuable arrangements. But this presupposes that you already own the factors. [cont]
My recent post Angry Birds Competes With Chinese Copycats, Instead of Suing Them
[cont]
In short, the libertarian view says that for every scarce (rivalrous) resource in the world, for any object that is usable as a means of action and that could be contested or have conflict over, each of these things has an owner: determined by (a) homesteading, and (b) contract. In other words, for any given object, the owner is either the homesteader or someone who acquired the object by contract from a previous owner. Period. There is nothing else. (well, if an owner commits a tort or crime, his victim may acquire the property as restitution) But this rule is complete and exhaustive; every resource is allocated an owner by this. There is no room left to say that A gets to control B's already-owned-property because A thought-of-a-way to use that property–because B learned how to do it, from observing what A did with A's own property. If you do this you give A a property right in B's already-owned property (this is called a negative servitude http://c4sif.org/2012/03/selected-supplementary-m… . But a negative servitude is valid only if it's granted consensually by the owner of the burdened property. IP would give A that right even though B didn't agree do it, B didn't commit any tort, B didn't commit aggression against A, and B already owned his own property.
(Even Rand recognized that you cannot create anything, that you only rearrange things you own, as did Rothbard and Mises: see http://blog.mises.org/14045/locke-on-ip-mises-rot… If she had been consistent she would have recognized this insight rules out IP)
My recent post Angry Birds Competes With Chinese Copycats, Instead of Suing Them
So Scott, let me ask you a couple of questions.
First, do you realize your argument, like Rand's, is a mix of alleged principle, and consequentialism? You guys talk about property rights (which is question-begging since that is under contention), and then you gripe that our system of property rights doens't provide enough "incentives."
Second: do you understand and agree with my point above (that Rand also shared), that we do not metaphysically create things; we use our intellect and labor to rearrange them into more valuable shapes? Or do you deny this?
Third: do you understand and agree with my point above, that to engage in an act of "creation", e.g. making a sword, you have to already own the factors that go into it? That is, that you own the sword not because you created it, but because you already owned the materials that constitute it? That you had to own them to have the right to re-shape them in the first place? Do you agree with this? If so, would you agree that creation is not necessary for property rights? After all I owned the iron ore before my act of creation. I owned it because I appropriated it–I was the first to use a previously unowned thing. (Or I bought it by contract: and thus own it b/c of contract: not b/c I created th sword) Do you agree then that creation is not necessary for property rights to exist?
Fourth: do you agree that if I take your material (say, your iron ore) and make a sword out of it, that even though I created it, I don't own it? I am either your employee and the sword is yours, by contract between us; or I am a thief or trespassr and you still own your stolen ore, even after I re-shape it. Do you agree with this? If so, would you agree that creation is not sufficient for property rights to exist? After all I created the sword but I don't own it. So creation is not sufficient.
It is neither necessary nor sufficient.
Fifth: do you agree that values do not exist as free-floating substances that can be owned? That value is a subjective (in the Misesian sense) relation between an actor and some object or end?
Sixth: do you agree that you do not own the value of some physical object that you own? That you have a right to not have its physical integrity breached, to not have it used without your consent, but that you do not have a property right in its value?
I am curious if you disagree with any of these, or how you sensibly can; but if you do not, the case for IP evaporates.
My recent post Angry Birds Competes With Chinese Copycats, Instead of Suing Them
Why buy the bootleg videos, when you can go to the public library and borrow them for free? As far as the rest of that consumer crap, that is just the problem with the modern world. Why does everyone wants to be a monoculture drone anyways? What ever happened to being creative? Oh, yeah, I know…everyone is just too busy supporting the state to have any time for all that. It is just so much easier to go to work for someone else, instead of doing something original. In the mean time, the machine gobbles up all of our land, air, water and slaves. If you really want to stop the state, stop buying their shit.
Very interesting comments! “Protection racket” is right, especially in terms of patents. Over the years (the first one was in the 90′s) I’ve had more than one (self-proclaimed) libertarian engineer insist to me (with anger in his voice that I even dare question it) that the government has the right to prevent an inventor from profiting from his or her invention if somebody else has already patented the same thing! Yes, even if the second (or third…) person developed their version completely independently!
It was at this point (the late 90′s) that I learned not to take any engineer (or computer programmer’s) position on IP too seriously, no matter how much they proclaimed to be a libertarian. And it was also the final straw into making me believe (as I had begun to in the 80′s with my “DO Copy that Floppy” thoughts) that we’d be better off without any patent or copyright laws at all.
But (unlike some others apparently), I do believe IP has value; it’s just that I think it’s value is best determined voluntarily. This probably sounds crazy to many, but so does (to others) the idea of not having any laws against cocaine and heroine. So I guess you could say my view of using someone else’s IP is a lot like it is of using drugs: I don’t think there should be laws against it, but I believe that (in some cases) it isn’t a good thing. But it is up to the individual to decide each case he encounters in his life for himself.
For IP laws (especially patents and software copyright) result in tremendous artificial over-valuing of IP. (In fact, this is one of the chief problems of our time, especially in terms of agricultural and biological patents, which have become extremely abusive and harmful to so many people.)
Granted in our current society having no laws probably undervalues IP, but don’t forget that we don’t have anything resembling a libertarian society now, so you can’t completely judge people’s behavior by the current desperate straits so many people find themselves in. (Once government stops wasting a large chunk of people’s money on wars, the drug war, and foreign aid people will have a lot more discretionary funds.)
Thus I maintain that not having IP protection laws (patents and copyright) doesn’t de-value IP; it merely brings it closer to its actual value than having laws that state you have to pay whatever the creator states (no matter how monopolistic and/or government mandated/subsidized the creator’s position in the market is).
I have always advocated paying something (just not the full price asked when [for example] there is no distinguishing between heavy and light users of the software). And I’ve always advocated strict enforcement of fraud laws (such as those who would try to re-sell the software or story/novel as their own).
The bottom line as I see it, as paradoxical as it may seem to some, is that the best way to get value for your IP creations is to have a libertarian society — even if that means no explicit laws (other than fraud) protecting your IP.
ADDITIONAL TIDBITS (for anyone still reading and further interested):
I’m amazed how many libertarians thought/think Bill Gates/MSFT is wonderful, rather than just realizing that he/it profited tremendously from making (via lobbying) the copying of floppies a major crime (not a civil matter) at the same time they could sell their software to “clone” manufactures (and customers) as IBM had no protection over the actual hardware design of their PC. (Which at the time seemed arse backward to me; now I think IBM probably didn’t deserve hardware protection either.)
Having lived through those times (as a computer programmer), I remember how terrified companies were of the potential huge punitive fines that they could have to pay if even a single unathorized copy of software was found on any of their employee’s computers — even if the employee brought the software from home and the employer didn’t even realize it was on the computer!
Think how different things would have been for Gates/MSFT if the most MSFT could have done was sue the employee for the cost of that single stolen piece of software. Gates/MSFT would have had to dramatically lower their prices and/or simply accepted that there were going to be a hell of a lot of unuthorized copies of software out there. Either way, MSFT would not have become the behemouth it did without the help of the government muscle. The ultimate protection racket.
By the way, as someone who has two (presumably expired) patents from my old days as a computer programmer, and someone who has written a dozen or more short plays and a couple of screenplays, it is certainly tempting for me to advocate strong IP laws, both for copyright and patents.
But in being intellectually honest with myself, I realize that if I don’t take software copyright seriously it’s hard to advocate strong laws against copying stories. (Other than, as I keep saying, laws against the person fraudulently claiming that I am being compensated or that someone else wrote it.) And I believe that, especially if we lived in a libertarian society, enough people would voluntarily pay for my stories that I’m not going to worry about those who won’t or can’t.
I suppose some may say it is a contradiction to have intellectual property without laws specifically protecting IP. Perhaps — I’ll leave it to those who like to discuss such matters. I admit I’m not well read — my thoughts are simply based on real-world experience and basic libertarian principles. To me, however, it is no more a contridiction than saying we shouldn’t have laws against cocaine/heroine/meth even though some will abuse them to the point where they severely, even fatally, damage themselves.
My reply will have to wait until another time — I'd just finished spending 45 minutes writing a detailed response and then this forum software ate it without posting. Sorry.
“My reply will have to wait until another time — I’d just finished spending 45 minutes writing a detailed response and then this forum software ate it without posting. Sorry.”
I feel your pain, Scott. I’ve gotten into the habit of ALWAYS (almost without thinking about it) right-clicking and doing “select all” and then right-clicking and doing “copy” before trying to submit what I’ve written. Only takes about five seconds, but can save so much text when (as often happens, due to gltiches or my not having enabled enough scripts with noscripts in Firefox) the system loses what I’ve written. (I’ve never had my system lose what was in the copy buffer, which I use to either try again or paste to a file for another time.)
I look forward to hearing more of your views when you get a chance. It think the IP issue (especially patents) is one that the libertarian community really needs to come to terms with before we can hope to make further progress towards a more libertarian society. We have such polar extremes, from those who insist on strong laws to those who don’t take any IP seriously. Naturally I think my view, treating it (except for fraud) as a moral issue, like drugs, to be decided by each individual on a case by case basis, rather than having laws against it, makes the most sense. But I’m open to hearing other views.
how convenient. When cornered, escape the corner.
My recent post “Patent Trolls” Cost Productive Companies $29 Billion in 2011, Stall Innovation, and Hurt Small Businesses
Excellent post! (“Patent Trolls Cost Productive Companies $29 Billion in 2011, Stall Innovation, and Hurt Small Businesses”) Thank you for posting the link to it (and writing it!).
Awww, wish I knew about them before they got busted. Any word on whether they actually got shut down as opposed to just getting shook down & back in business the next week?
I used to love visiting Hong Kong, you could get the name brand stuff, straight off the same industrial line that made the expensive items. Somewhere in quality control a batch would be deemed unfit to sell… & would somehow show up in the markets a couple days later without any actual defects & at a fraction of the price.
This arrangement is so transparently silly that it has to be covered up with additional fictions.
For example, the fiction that if you have something Universal Studios doesn’t want you to have, it is “stolen,” even if their copies of it haven’t gone missing.