Over at C4SIF, I’ve blogged quite a bit lately about SOPA and PIPA and the recent Internet blackouts and other protests against these bills, which threaten free speech and the open Internet (Mike Masnick et al. at Techdirt have also been great on exposing and analyzing SOPA). As Jeff Tucker noted recently,1 the protests against SOPA started not with conservatives or even “libertarians,” but with civil libertarians of the “left,” as well as Silicon Valley tech types. Of course, some libertarians have been opposed to SOPA (and copyright) from the beginning–the more radical and anti-state libertarians, in particular Austro-libertarians and left-libertarians (such as some of the people associated with C4SS2 ).
Aside from the anti-state libertarians, however, most of the protests against SOPA concede that copyright is good, intellectual property is important, and piracy is bad–but then they bemoan that SOPA “goes too far.” For example, as I noted in Where does IP Rank Among the Worst State Laws?, consider this article in PC Magazine, providing the response of 11 PCMag staffers asked for their take on SOPA. The response to SOPA was universally negative, but most of them first prefaced their opposition to SOPA by genuflecting to copyright and recognizing that IP piracy “is of course a real problem”. For example:
- “Yes, theft of intellectual property is wrong, but it shouldn’t be protected at the cost of free speech and an open Internet.”
- “SOPA is a perfect case of a disproportionate reaction to a real problem. Lawless Web sites full of pirated content are a real problem, but breaking the Internet isn’t the solution.”
- “This proposed legislation is akin to having libraries monitored or even shut down because there is a chance that a book may contain a piece of plagiarized work.”3
- “IP is a precious thing. For example, every writer on PCMag has had their work pirated at one time or another. However, this legislation goes” too far.4
- “There is definitely a need for content owners like movie studios and music labels to protect their content from piracy, but the proposed legislation isn’t the answer.”
This is the type of response that almost all the SOPA opponents have taken, such as Facebook and Mark Zuckerberg, which said that
rogue foreign sites that pirate American intellectual property or sell counterfeit goods pose significant problems for our economy,” but PIPA and SOPA “are not the right solution to this problem, because of the collateral damage they would cause to the Internet.
This type of argument is extremely common. Depressingly common.
And not only do most opponents of SOPA accept the basic legitimacy of copyright, they also accept the RIAA/MPAA propaganda about “piracy” imposing billions of dollars of “cost” to the economy every year–even though there is no evidence of this.5 The problem is that copyright obviously infringes free speech and other individual rights. This is no surprise, given its origins as a tool of censorship. As the Supreme Court recognized in its most recent copyright decision, Golan v. Holder (the case authorizing Congress to re-copyright public domain works), “Concerning the First Amendment, we recognized that some restriction on expression is the inherent and intended effect of every grant of copyright.” It is widely recognized that copyright (and even patent) restricts freedom of speech and expression.6 By assuming that copyright is legitimate–as the courts do–and that the First Amendment protects freedom of expression, a balance must always be found between freedom and censorship. And this is the dilemma most people find themselves in when they start with the premise that we must protect intellectual property rights, “but” we can’t “go too far” because otherwise we would harm free speech (and the open Internet) “too much.”
Obviously there is a conflict between copyright and censorship and government control of ideas, on the one had, and freedom of expression and the open Internet, on the other. This is being increasingly recognized. Leo Laporte recognized this in a recent episode of This Week in Tech. You have to choose: the Internet, or copyright, he observed (opposed to technocrat Niley Patel). In the aftermath of the SOPA battle, we have people finally asking important questions. The Washington Times questions copyright abuse in its opposition to the Golan decision. The Daily Caller questions copyright’s legitimacy. Mark McKenna at Slate, in Don’t Stop at SOPA, asks: “SOPA and PIPA are (almost) dead. Now can we talk about the law that already exists?”. Glyn Moody at Techdirt asks the important question: OK, So SOPA And PIPA Are Both On Hold: Where Do We Go From Here?
And what is the answer? Some people are hinting at it, or directly suggesting it: abolish copyright. As Rick Falkvinge observes in It Is Time To Stop Pretending To Endorse The Copyright Monopoly,
the copyright industry is actually right that these ridiculous laws are needed to sustain the copyright monopoly. General-purpose networked computers, free and anonymous speech, and sustained civil liberties make it impossible to maintain this distribution monopoly of digitizable information. As technical progress can’t be legislated against, basic civil liberties would have to go to maintain the crumbling monopoly. And these are the laws we’re seeing on the table.
There comes a tipping point when somebody says that this entire system of cultural monopolies is absurd. A tipping point where the part before the “but” is unceremoniously and collectively dropped, the part that didn’t count anyway. A tipping point where everybody just stops pretending to support it. I think it is time to create that point on the history line.
Falkvinge here recognizes that if you support copyright, you should support SOPA. And conversely–if you oppose SOPA, you should oppose copyright. Copyright is the problem, people.
We are at a moment in history where people who have absorbed the idea of copyright, but who are not ideologically committed to it, have seen that it conflicts with more deeply held values: freedom of expression, commerce, digital life, the Internet. They are seeking for a framework, a way to coherently express what they sense is wrong with escalated copyright enforcement. We need to let them know: the problem is copyright itself. If you have copyright of course you want to enforce it. All the problems we see are merely symptoms of the copyright mentality.
We must press our fleeting advantage to let our half-hearted allies know that their intuitions are right: censorship and SOPA and state control of private property and SOPA are wrong. And this means copyright, which is the engine behind all these things, is wrong, and must fall, or at least be radically scaled back, not strengthened.
The argument against patent and copyright is not a socialist or liberal one. It is in fact rooted in respect for private property rights, capitalism, the free market, and competition. A coherent understanding of private property and free markets reveals that copyright is an anti-competitive grant of state power for purpose of censorship of favoritism, that can only seek to undermine private property rights and empower the police state—as we are seeing now.
For those interested in understanding the free market case against intellectual property, or for informing our anti-SOPA brethren, I recommend the resources listed at the end of this post.
And remind them that the battle is far from over. They opposed SOPA and PIPA, but where were they when the 1998 Digital Millennium Copyright Act (DMCA) was enacted, which has led to so much persecution and harm to the Internet? Where were they when George Bush signed the PRO-IP Act in 2008, which was instrumental in the FBI raids in New Zealand on the Megauploads principals, a day after the alleged SOPA blackout protest victories? And what about the Golan decision, released the day of the SOPA blackouts, authorizing Congress to re-copyright works long in the public domain? What about the one year federal prison sentence handed down to a man for uploading a copy of the Wolverine movie? What about the British student faced with extradition to the US for having the wrong links on his website? Where were they when President Obama signed ACTA (unconstitutionally, without Senate ratification), a global internet treaty even worse in some ways than SOPA? Right now nations are negotiating in secret the TPP (Trans-Pacific Partnership), an “agreement that the entertainment industry is betting on to get SOPA-like laws introduced around the globe.”
In other words, the dangers of SOPA are already here.7 This is because of copyright.
The problem is that all the people opposing SOPA undercut their opposition by acknowledging the importance of copyright and IP, by condemning piracy. It is admirable that they are taking the right side of the chasm caused by their cognitive dissonance, but dissonance it is. If you support copyright, you oppose piracy, and you support the state’s existence and its attempts to enforce these “property rights.” You cannot have both copyright, and Internet freedom/freedom of speech. The threat here to property rights, to individual rights, to Internet freedom and freedom of speech and expression and the press comes from copyright itself. We must strike at the root. SOPA is just a symptom of the disease. The disease is copyright. Everyone is trying to treat the symptom–enforcement efforts like SOPA–with half-hearted treatments like labeling the response “disproportionate” or going “too far.” This is like trying to treat a brain tumor by taking Tylenol–sorry, acetaminophen–in response to the headaches caused by the tumor. All opponents of SOPA and censorship, all denizens of the web and proponents of freedom, must oppose copyright itself (and patent too).
Those libertarians8 and others who oppose SOPA and who are for copyright reform, but who are not for copyright abolition, should realize that a modest, fair, efficient, “reasonable” or “sensible” copyright system is completely impossible. Since the dawn of copyright its scope, length, penalties and enforcement have only increased, because of the relentless pressure by special interest factions like Disney, the RIAA, the MPAA, and other content providers and entrenched interests. As we can see with the pressure to adopt SOPA, PIPA, PRO-IP, DMCA, Berne, WIPO, TRIPS, COICA, Sonny Bono/Mickey Mouse Copyright Term Extension Act, ACTA, the TPP, and other measures (see The Mountain of IP Legislation; Death by Copyright-IP Fascist Police State Acronym), the Big Content interests are relentless and will not stop pressuring Congress and other legislatures to expand the war on information sharing and the Internet. Even if we had a less noxious copyright system–say, one with 10 year terms and less draconian penalties and enforcement–it would soon metastasize into what we have now, just as it has done (originally 14 years, now it is over 100). So a modest, “reasonable” copyright system is really off the table. The question that SOPA opponents have to ask themselves is: would you rather have today’s copyright system, with its draconian terms and penalties and continual pressure to expand and internationalize it, or no copyright at all? Only one of these choices is compatible with opposition to SOPA and to censorship. The only way to stop SOPA type provisions and to maintain Internet freedom, is to get rid of today’s copyright system.
Update: See Rick Falvinge’s proposals for copyright reform (most of which I agree with) in It’s Time To Go On The Offensive For Freedom Of Speech; my own proposals for copyright reform may be found in How to Improve Patent, Copyright, and Trademark Law.
- Kinsella, “The Case Against IP: A Concise Guide“
- Sheldon Richman, “Patent Nonsense“
- Jacob H. Huebert, “The Fight against Intellectual Property“
- Kinsella, “Intellectual Property and Libertarianism”
For more in-depth treatment, see these two books:
For video or audio speeches or presentations:
- “Why Intellectual Property is not Genuine Property,” 3rd Adam Smith Forum, Moscow, Russia (Nov. 12, 2011)
- “How Intellectual Property Hampers Capitalism,” Mises Institute Supporters’ Summit 2010:
- “Rethinking Intellectual Property: History, Theory, and Economics,” Mises Academy (audio and slides)
- “Libertarian Legal Theory: Property, Conflict, and Society,” Mises Academy (audio and slides) (lecture 5)
- “Intellectual Property and Libertarianism,” speech presented at Mises University 2009 (audio; video)
Gary Gibson, Minneapolis, Minnesota…
The Internet recently rallied against copyright monopolists and their paid-for lawmakers. The twin monstrosities of SOPA (Stop Online Piracy Act) and PIPA (PROTECT Intellectual Property Act) were forced back into their caves, thanks to the Internet blackout protest on Jan. 18, 2012 (Black Wednesday).
But here there still be monsters. Before another day had passed, the FBI and DOJ made a show of intellectual property force under existing law (specifically the PRO-IP Act signed by Bush in 2008). They shut down the popular site Megaupload and jailed its principals, who happen to be non-U.S. persons not living in the U.S.
On Black Wednesday itself, the Supreme Court handed down a decision in Golan v. Holder that authorized Congress to re-copyright works that had long been in the public domain.
Then, last week, Poland joined with seven other nations — including the U.S., Japan and Canada — by signing ACTA (Anti-Counterfeiting Trade Agreement), the international trade agreement that criminalizes intellectual property theft across borders. The U.S. signed in 2010 when the negotiators termed ACTA an “executive agreement” instead of a “treaty”…because that allowed them to skip merrily around the Senate ratification that would have been required for a treaty.
As Timothy B. Lee explains on the Ars Technica site:
“If ACTA becomes a binding part of international law, it will create a precedent for future treaties that avoid basic principles of transparency and democratic accountability.
“More generally, the treaty continues the one-way ratchet toward ever-stronger copyright protections. ACTA establishes a new, higher minimum of copyright protections and enforcement that countries must provide, but it doesn’t require countries to preserve mechanisms like fair use and intermediary immunity that protect intellectual freedom.
“If Congress ever decides that IP rights have swung too far in one direction, it can always re-balance them by changing the law, right? Not exactly. International agreements like ACTA bind the hands of legislators unless the U.S. is willing to withdraw from them first.
“That’s why Rep. Darrell Issa (R-Calif.) last week called ACTA ‘more dangerous than SOPA.’ He added, ‘It’s not coming to me for a vote. It purports that it does not change existing laws. But once implemented, it creates a whole new enforcement system and will virtually tie the hands of Congress to undo it.’
“Unfortunately, these arguments are hard to explain to the general public. So too many ACTA opponents are, perhaps unknowingly, attacking ACTA for provisions that aren’t in the treaty. We’re not going to shed too many tears if this misinformation helps to kill a bad treaty, but we’d rather win the debate honestly — and prepare people for the upcoming ACTA sequel.”
Hmm. We agree that the poor treaty (or executive agreement for those U.S. presidents who can’t be bothered with Senate ratification) ought not be maligned for what it doesn’t contain. Especially when the wretched thing is detestable for what it really does contain…and for what it represents.
What the Internet has forced us all to confront is this: Free expression and the sharing of information that drives progress are not compatible with the notion — and state enforcement — of intellectual property. The cognitive dissonance is wide and growing between defense of intellectual property and the defense of liberty and acceleration of progress.
In today’s feature article, Stephan Kinsella explains more and, in doing so, throws down the gauntlet against the defenders of IP.
This is bound to generate some discussion and argument (Oh, our aching inbox! firstname.lastname@example.org). Heck, as quite a few of our Whiskey Shooters have noticed and emailed us about, there’s a little copyright warning at the bottom of these very missives and everything Agora Financial publishes.
This is still fairly new territory we’re exploring. A couple of years ago, we were far more in the Ayn Rand/Objectivist camp when it came to intellectual property (though not as far as the entertainingly pro-IP libertarian Andrew Joseph Galambos, who reportedly changed his name from Joseph Andrew Galambos so as not to infringe on his father’s claim to the specific name and who dropped a nickel in a box every time he used the word “liberty” to pay the estate of the reputed coiner of the word, Thomas Paine). It’s only recently that our friend Jeffrey Tucker got us thinking — and rethinking — the issue.
There are a couple of ways to approach it. We’ll undoubtedly have cause to explore them all in future issues (like Stephan points out, there are too many state-backed monopolists with too much money on the line for these kinds of legislation to go away), but here’s one way of thinking about it that we really like…
Property rights are the natural way to deal with scarcity in a world of scarce physical resources. Without property rights — based in first occupancy, not labor or use of material — ownership reverts to a temporary condition determined by might. Property rights aren’t natural in the sense that gravity is, and not as fundamental, but very nearly so, in the context of human existence. They are as natural, as essential to peaceful co-existence as your right not to be beaten, killed and possibly eaten by your stronger neighbor.
Ideas — even complex ones — are nonscarce, unlike physical property. They are literally infinitely reproducible without damaging the original in any way or depriving the owner of its use. Yes, potential income is damaged in the absence of intellectual property monopoly enforcement, but that could be said about a great many things that aren’t protected by this notion of intellectual property. It takes some serious mental contortion and far-reaching legislation to make ideas and thought patterns scarce. This is what SOPA, PIPA, ACTA and all the rest are making us all realize.
When you see how far the state has to go to enforce monopoly use on nonscarce things…when you see how this monopoly enforcement really hampers progress and restricts the way people use their own property, as it does with these threats to a free Internet (people are now actually afraid to send links to public websites in private emails)…you have to start to wonder at the soundness of the premise.
The arguments for intellectual property strike us as about as sound as arguments for a flexible state-run currency…or for military adventurism…or for gun control…or for prohibition. That is to say, they are fundamentally unsound in that they rely on the force of the state to interfere with the natural forces of the market…with all the distortions you’d expect, along with a continual growth in state power to wage effectively.
At least that’s how we see it here in the Whiskey editorial room. We suspect the world is waking up to this fact as this unsound, indefensible idea gums up the engine of the digital world.
The only way to defend intellectual property in this digital age is for the states of the world led by the U.S. to keep on pushing this invasive, punitive legislation.
We don’t think that’s such a good idea. The entire world that benefits from a free Internet seems to agree, even if most of that world holds onto a belief in intellectual property.
We’re curious to see how this will play out. We suspect strongly that progress will win. Eventually. In fact, we’re willing to put our money where our big mouth is on that one. Those who bet on progress tend to win. Those who bet early win the biggest.
To be an early better — and to be ready to multiply your wealth when the innovation curve goes vertical – just click here.
Managing editor, Whiskey & Gunpowder
Typical confusion, usually spread by the IP proponents. Copyright infringement has nothing to do with plagiarism. Plagiarizing Plato is just stupid, not copyright infringement (unless Congress yanks it out of the public domain); and selling or obtaining a “pirated” copy of Mission Impossible 3 is not plagiarism. ↩
How does the fact that someone has copied your writing show that “IP is a precious thing”? The “for example” is bad writing, sloppy thinking, and does not illustrate or support his contentions at all. ↩
E.g., see Cato Institute Digs Into MPAA’s Own Research To Show That SOPA Wouldn’t Save A Single Net Job. See also  from SOPA, PROTECT IP Advocates, Cato Daily Podcast (Jan. 18, 2012), featuring Julian Sanchez. This is a good interview even though Sanchez seems to concede that piracy is a problem and a “criminal” activity. ↩