Wednesday, March 07, 2012

If Copyright Didn't Exist, A Free Market Would Invent It

The philosophical basis of copyright law is a travesty that is not worth going into here. The resultant statist defense of "intellectual property" is heavy handed and infected with cronyism because the philosophical basis is of such poverty. The typical libertarian response is to disavow any right, as such, to protection of intellectual property.

I'd like to suggest this is an extreme response and describe how something akin to copyright is valid in a free market, libertarian society.

The fundamental basis of libertarianism is private property. In this theory there can be no question that the correct and proper owner of work is the creator of that work. (A possible caveat is that all the inputs to the work were already owned by the creator - if you create a sculpture out of my marble, not only is that sculpture mine, I may have recourse against you for using the marble without my permission.) In terms of homesteading, the creator of a work has a greater claim than any subsequent claimant as they are, from the point of view of the creator, latecomers.

The basis of private property is the self-ownership concept. I am well within my rights to offer to sing a sonnet for you, in exchange for a mutually agreed price. Our agreement is called a contract, and it is of no business of any third party what the terms of our contract are. This would appear to be an argument for intellectual property, such that sonnets are works of the mind - and some have argued exactly that - but I think we need to go deeper.

What kind of price might I demand for my performance? In a free market, the answer is clear: anything the market will bare. If I so desire, part of the price I demand can be secrecy. If my audience is not willing to meet my price, they have no right to hear my performance. In a sense, I have prevented reproduction of my performance, not by the skill and grace of my voice (trust me, there isn't any), but by the contractual arrangement under which it was given.

This method continues to function if the intellectual work is provided in a fixed form.. be it written on paper, painted on a canvas, etched into a sculpture, or encoded in a computer program. If I require the purchaser to maintain secrecy, or even just refrain from making copies, then I have a legal recourse if the contract is subsequently broken.

One may object on semantic grounds to the use of the word "purchase" when referring to a contract of this sort. While it is clear that the purchaser of a performance is not buying the performer, it is less clear that the purchaser of a sculpture which comes with restrictions on its use, is indeed "purchasing" the sculpture. If it helps, one may reasonably say that the sculpture isn't being purchased at all - it is only being rented, and comes with a rental agreement that includes some restrictions. This would be a fair characterization.

We can now anticipate what will happen if the contract is violated. As it is absurd for a sucker who buys a rented car to expect to be able to keep it, so too any receiver would be amiss to believe he could keep a copy of our rented sculpture. His grudge at having his copy removed from him would belong to he who sold it to him. As in all property disputes, a claim of title passed from seller to buyer is required to prove legitimacy. Any receiver wanting to keep his copy would present such a title, allowing the trace back to the original contract violation by the ultimate culprit, no matter how many copies were made.

Under such a Liaise-fair copyright system, the costs of enforcing a copyright belong with the owner of the original work. However, just as with all other contracts, the courts are at his disposal to enforce his correct claims.

This is not to imply that such a system would necessarily be successful. It is simply a given of free societies that contracts are voluntary. Upon reading a contract with a copyright clause such as this one, a trader may choose to seek goods from elsewhere. The success or failure of such a system as this one would be decided by the state of the market in which it is attempted. This is as it should be.


  1. Yes, this is uncontroversial. All contract fetish systems would, indeed, invent all of the current systems we have in place. We'd even have an EPA, FDA, and so on, eventually (UL is a private company for an example). Nothing is changed. Contract fetishism, too, can make it so that even patents are invented by this so called "free market." For instance, if I wanted to enforce this idea of "market patents" all I would do is require that everyone who buy my product agree not to violate my patents. With a proper conglomerate of self-interested companies (eventually monopolies), we would have replaced the system we have now with ... the same damn system. Only the contract fetishists would happily cheer the authoritarian aspects of such a system.

    Copyright under a free market system is indefensible, simply because there's no way to guarantee that all copies at all times are always properly attributed, properly distributed, or properly recompensed in all situations. Everyone violates copyright on a regular basis, simply browsing the internet and passing along some image that the publisher has no right to. It would merely result in a system where cronyism is paramount and those with the most money to hire the biggest guns or the best lawyers win. No effective change from what we have now.

    1. Under your laisse-fair patent system, how are you going to enforce exclusive rights to an invention made independently? Under any laisse-fair system you have to show the chain of contract which gives you standing.. which is what I did above. I don't think you can do likewise. The whole point of our current patent system is that no chain is necessary. That's what makes it unjust. As such, you're wrong that the same system could be constructed in a free market.

      As for "contract fetishism", we generally have another word for that: freedom. You are not forced to enter into contracts.. they are voluntary. This is by definition and cannot be argued. In fact, you're not required at all to participate in a free society.. you can go elsewhere and produce all your own goods.

    2. What contract did I sign when I copied your works? I don't recall signing a contract or agreeing to a contract in any way. You have to create an artificial system that assures that I did in fact sign such a contract. You have basically established that such a system is necessary for copyright, and therefore, I cannot see why such a system cannot be made for patents. In the case of independent ideas, you take it to court. By the same token, I can just copy all your works by simply adding it in with all the "independent works of all copyrighted materials" and magically, with the click of a button, recreate your work (after all, Everything is a Remix and I am sure that any 2-3 word paring has already been written in all the works that currently exist). And, since you are a contract fetishist, I would make sure to copyright the key that recreates the work in full, and make you pay me whenever someone uses your work, because to see whether or not your work is in my database you have to agree to my copyright clauses!

      See how convoluted this contract fetishism goes? I advocate simple property rights. I agree to pay you for something, we exchange, no exceptions. What about that kid with the shoes you talked about? What if he made you promise not to get your own shoes dirty?

      Then what if he took a water hose and circled you with mud? That's the system you're advocating, assuredly.

    3. So you're actually saying that you disagree with the analogy to purchasing a rented car?

      Alice rents a car to Claire.
      Claire sells the cars to Bob.
      Bob gets to keep the car?

      Really? This is clearly absurd. No matter how many times the car is sold, Claire did not have legitimate title for the car and Bob (or any other receivers) should look to Claire for recompense when the car is returned to Alice.

    4. I'm saying I don't believe in rent. You don't rent a car, you either buy it, or you don't have a car. If you cannot afford to buy a car you save your money and buy it. Copyright, rent, patents, they are all extensions of the contract fetishism. How many leases have you signed? I've signed more than I'd like to count. After reading the entire things. After basically saying "here are all my rights to anything, and you can fuck me at any time at your discretion for any reason."

      Meanwhile, the example becomes preposterous when you're talking about seeds that have been grown and distributed and redistributed through hundreds of actors, and copyable material, that can be made almost limitless. The whole "You wouldn't download a car" joke. Yes, if you could download a car, you would, and so would I, and all would be well and we'd have a big laugh about it.

    5. Your personal opinions on renting things doesn't invalidate the argument. If you don't want to rent my sculpture then you're free to go find someone else who will sell you a sculpture. It is not up to you to decide how free people trade with one another.

      The ease with which something is copyable doesn't change the argument either. As I said above, the stronger restrictions of absolute secrecy are just as legitimate requirements as restrictions on copying - and gossip is even easier than growing crops. Next you'll be saying a voluntary contract with a secrecy requirement violates the freedom of speech.

  2. All I'm saying is that I would not agree to such arguments or clauses in your "free society." I am only forced to because the system we have in place creates those clauses (and I, ethically choose to ignore those clauses when they are truly odious, eventually when I have land, that I have full ownership to, will no longer participate in any form of clause as such, outside of my state ID which I will require to do business). The system you advocate, would, invariable, recreate the system that we currently have in place. We are no more free from a free market standpoint than we have ever been. There's nothing that needs to be changed from the contract fetishists point of view except for perhaps more contract freedom (here in the US we passed a law to make contracts more human consumable, this would go against the contract fetishists view, the more convoluted and the more complicated the contract, the more likely someone will sign it in a situation where they need something).

    I would not, in fact, rent your sculpture, or your car, but those who would would be ceding their freedom to you under the auspices of "free market enterprise." My goal is merely to show people that rent-seeking is in fact authoritarian, takes away peoples' freedom, and is in direct opposition to property rights.

    You can make all sorts of requirements, tell people to never distribute your works, and so on. That's fine. And people are free to see such authoritarian requirements for what they are, the opposite of freedom. Yes, you are free to tell people that you wish to have a relationship with them that makes them less free.

    And they are just as well able to tell you that they choose not to enter such a relationship.

    Unless you invent copyright, patent, and other conglomerates that pervade their very existence and make it impossible for them to do business without having to agree with some contract somewhere along the line. At a cash register, whatever. Want some music? Here, read this, sign it, pow, now the Music Conglomerate Disallows You To Acquire Any Music That You Have Not Purchased Through The Conglomerate. Ridiculous.

    1. *By definition* all contracts are voluntary in a free society. It is never the case that you must enter into a contract. If you are tricked or forced into signing a contract, that's an invalid contract. And no, if you can't find a better offer, that does not amount to force. You're free to go without, or produce your own goods.

      As for the rest of your comment, why are you telling us your own personal preferences? This is like high school students writing that they don't like something on their assignments. The teacher doesn't care about your personal preferences, they want to hear your arguments. Are you confused and think somehow I'm telling you *my* personal preferences?

  3. In my current society Copyright and Patent are based on the Social Contract. You can't agree or disagree with it. I'm actually agreeing with you, you just can't draw the conclusion that, in the end, patents are in the same category as rent and copyright.

    My personal preferences are just to illustrate how the system you appear to advocate is in no way libertarian, but merely fascism disguised.

    It's not about being "unable to find a better offer." Copyright in my system is a constitutional right. Patents in my system is a constitutional right. The government enforces it and the people cede to it. I never, personally, agreed to it. Because the system uses it extensively, though, it is pervasive. Yes, I can go to other outlets to acquire the things that I want outside of copyright, and I do that, but if I were to explain how I do, to meet your moral purity test (after having called me a liar on twitter), you would likely just call it being "like high school students don't like something."

    1. Who mentioned patents? I intend to write another article on patents and I expect you'll like that too. Where did I advocate anything? How is it fascism? (do you even know what fascism is?)

      I called you a liar on twitter in response to your hypothetical that you would agree to a contract with the intention of breaking it. If one agrees to a contract with the intention of breaking it, one is a liar - do you disagree? Now, can you make rational arguments without making it personal or not?

  4. Readers can see who started "making it personal." I've been quite cordial with you throughout.

    You don't appear to actually dispute that these sorts of contracts would invariably result in the same sorts of systems being reapplied in a "free market" system. That's satisfactory by me. More free marketers need to recognize that their system is not significantly different than the one we have in place. I applaud your efforts to show them how the "free market" is compatible with copyright. And I await your attempt to differentiate patents from copyright. I mentioned patents because I *agreed* with you about copyright, and I think what you have described in your article applies to *all* contractual systems. You merely have to apply the social contract to paper. That's all. Want an EPA? Convince enough businesses to sign on board using contracts, advertise to towns that have smog, townsfolk pay a small fee, pow, you can't do business in that town without agreeing with the Environmental Protection Conglomerate. I don't know why this is so hard to accept.

    I blame myself for failing to communicate the idea.

    Anyway, it doesn't make me a liar to disagree with the constitutionally mandated social contract that my country has. It does not make me a liar to, say, buy a CD, and rip it, and even distribute it. The "copyright system" never asked me what I was going to do with it. It just assumed that I'd agree to cede to it. As it stands now I have not acquired any property in the last 10-15 years, actual, tangible, property, without paying for it in full and having full rights to that property.

    As far as fascism? You're the one dreaming up copyright enforcers. At least your edited the post to say it may not work... I would hope that the wonderful markets prevented such a system from having much sway. But, I have my doubts. Sadly I don't see it ever being tried, to test the theory.

    1. The "social contract" isn't a voluntary contract.. and therefore isn't valid. I think this is the problem here.. you're confusing voluntary contracts with this other nonsense. That's understandable.

      As for your EPA example, how exactly can someone "not do business in that town without agreeing"? You haven't explained how that can possibly work with voluntary contracts. It seems obvious that potential producers of smog (or whatever the EPA is supposed to prevent in your scenario) would require some incentive to sign up. If that's the small fees from the townsfolk, then what's wrong with that? Alternatively, I suppose it is possible that the town has a nice big wall around it and inside is all private property, in which case the EPA-like requirements would be a condition of entry of businesses into the town.. again, what's wrong with that?

      I just don't see how you're making an argument that *voluntary* contracting is bad.. and I'm baffled as to how you can think voluntary contracts are somehow contradictory with libertarianism when they're a fundamental element of libertarianism.

    2. Assuming isolation, in what system will that isolation last? The EPA exists to provide clean air standards. Those standards exist because companies did not have any incentives under market conditions to make sure that air standards existed. We know that this is true because in the US the air quality was worse than China is right now at one point (there are remarkable images you can find if you want, that illustrate that fact; one river, actually, caught on fire! Amazing!). Eventually, I propose, the markets would've invented an EPA because the citizens simply would tire of the deplorable conditions that existed, and as companies adapted, moved away from areas that implemented the standards (through voluntary contract), eventually everyone would adopt the standards. Eventually your agency fails to exist, somewhere along the line when you make a purchase or do business you would have to "voluntarily agree" or you simply would be unable to do business.

      I'm not saying this monopolization of services is bad, per say, I'm merely saying that this is no different from the system we already have in place, and thus, serves no real purpose outside of rhetoric. It does help to show, rhetorically, how Libertarianism is just another side of the same coin and it proposes to get there through a convoluted system of contracts.

      For me, there is only one valid property contract, and that is one that bestows full right to a given piece of property in exchange for something. No clauses, no gimmicks. By applying clauses to free market property exchange anything is possible, including things which limit people and take away their freedom to enjoy their property. Property exchange is a necessary condition of human society, to tie social or economic clauses (that go beyond a simple, straightforward, full exchange) to it destroys its function as property in a more basic sense. It becomes proprietarian, which extends beyond rights to ones self, and ones property, but rights over others.

    3. Well no actually, that's historically wrong.

      See, the EPA (and it's ilk) came about as a result of the forsaking of property rights. When railroads were being run across the US farmers were continually bringing suit against the railroad companies for the haystack fires that the flying sparks caused. These cases were tolerated for sometime, and some railroads actually made efforts to clear land around the tracks to prevent fires.. but eventually they got a ruling in their favor and the private property of the farmers "gave way to progress".

      There's a hundred other stories. Sometimes, the problem is simply that the government forbids ownership of certain things.. knowing full well that this will cause a tragedy of the commons, they allocate a bureaucrat to "manage" the tragedy.

      A "private EPA" that served the interests of property owners would be a glorious thing and no doubt would happen in a free society automatically as a "clearing house" for cases like the haystack fires above.