Against Intellectual Property?

Exercising the liberty of the press and free speech requires the use of a communications medium, whether that be in a written, audio, or visual format. In order to present verifiably sourced information, any media’s bibliography necessarily encompasses works made by other people. Unfortunately, a legally sanctioned form of subterfuge has been used to quiet the growing discontentment emanating from the American people.

 

 

Norman Stephan Kinsella earned his juris doctor in 1991 from Louisiana. He became licensed in Texas the following year, which is possible due to Rule I(a)(3), Rule II(1)(5), & Rule III(a)(1) from the Rules of the Supreme Court Governing Admission to the Bar of Texas. This esquire has been intrigued by libertarian philosophy since 1982, and admitted to being an anarchist as early as 2002. If you’re getting the feeling that you’re about to be lectured to by an oxymoronic “anarchist lawyer” just like Lysander Spooner, you’d be about right.

Kinsella begins his tome by thankfully defining his terms, the most notable of which are copyright and its foundational idea, intellectual property. He says:

 

“Intellectual property is a broad concept that covers several types of legally recognized rights arising from type of intellectual creativity, or that are otherwise related to ideas. IP rights are rights to intangible things – to ideas, as expressed (copyrights), or as embodied in a practical implementation (patents)…copyright is a right given to authors of ‘original works,’ such as books, articles, movies, and computer programs. Copyright gives the exclusive right to reproduce the work, prepare derivative works, or to perform or present the work publicly. Copyrights protect only the form or expression of ideas, not the underlying ideas themselves.”

 

Right from the get go, there’s already a bit of a problem…how can there be property in a thing that in light of its existentiality is inherently abstract? I mean, technically, justice is an abstract concept, so therefore, why can’t justice be considered intellectual property? Oh, wait, that’s right…it’s the form or expression of an idea that is “copyrighted,” as in, “the right to make a copy,” perhaps? But I digress.

The constitutionality of copyright is virtually indisputable. Article I § 8 cl. 8 of the United States Constitution, also known appropriately as the Copyright Clause, says:

 

“The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

 

Now, pray tell, what did the Framers mean by this? Let us first consult James Madison, for as he wrote in Federalist Paper #43:

 

“The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain, to be a right at common law. The right to useful inventions, seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The states cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of congress.”

 

Scarcely questioned in particular, yes, but the larger issue encompassing copyright was the fact that the congressionally enumerated powers were thought of by some at the time during ratification as being too powerfully broad. In Anti-Federalist Paper #41, the Federal Farmer wrote:

 

“I am persuaded, a federal head never was formed, that possessed half the powers which it could carry into full effect, altogether independently of the state or local governments, as the one, the convention has proposed, will possess. Should the state legislatures never meet, except merely for chusing federal senators and appointing electors, once in four and six years, the federal head may go on for ages to make all laws relative to the following subjects, and by its own courts, officers, and provisions, carry them into full effect, and to any extent it may deem for the general welfare; that is…for promoting the progress of science and useful arts…these enumerated powers we must examine and contemplate in all their extent and various branches, and then reflect, that the federal head will have full power to make all laws whatever respecting them; and for carrying into full effect all powers vested in the union, in any department, or officers of it, by the constitution, in order to see the full extent of the federal powers, which will be supreme, and exercised by that head at pleasure, conforming to the few limitations mentioned in the constitution.” [emphasis added]

 

Interestingly, both factions considered the several state governments as being either too weak or too lazy to carry out any sort of copyright enforcement, yet they differed as to whether this was fundamentally a good or bad thing; Madison saw it as an exercise in dual federalism whereas the Federal Farmer saw it as an opportunity for the national government to dangerously centralize power unto itself in that area of the law. Alas, it is almost impossible to legally challenge the constitutionality of copyright today because of the constitutional avoidance doctrine!

Stemming from its ostensible legality, Title 17 of the United States Code criminalizes copyright infringement. According to 17 USC § 506 & 18 USC § 2319, if you copy & spread copyrighted works that somehow adversely affects a person’s profits (like a multinational 14th Amendment corporation, for instance), you could be facing prison time ranging anywhere from 1 to 10 years, not counting any statutory damages and court costs incurred, of course. If you are starting to think that perhaps the federal government is highly overreacting, just wait, for it gets much worse.

Case law is quite appalling when it comes to federal copyright, as well. In the 2010 Sony Entertainment v. Tenenbaum (721 F. Supp. 2d 85) case, the appellate judge ruled:

 

“I will amend the judgment in this case to reduce the jury’s award to $2,250 for each of the thirty infringed works…[f]or an ordinary case of non-willful infringement, permissible statutory damages range from $750 to $30,000 per infringed work. 17 USC § 504(a), (c)(1).” [emphasis added]

 

Notice that while Tenenbaum ultimately got slapped for a total fine of $67,500, the amount could have been anywhere from $22,500 – $900,000, or even up to a maximum of $4.5 million on the grounds of “willful” infringement! How’s that for judicial discretion? Later that year, the Harper v. Maverick Recording Company petition for a writ of certiorari was denied. Samuel Alito, in a dissent from the United States Supreme Court’s decision, wrote:

 

“The District Court held that there were genuine issues of fact on whether she qualified as an innocent infringer, but the Court of Appeals reversed, concluding that another provision, §402(d) foreclosed the innocent-infringer defense as a matter of law…[t]he [Supreme] Court has decided not to grant review at this time, but if a conflict in the Circuits develops in the future, the question presented, in my judgment, is important enough to warrant review.”

 

Although it is true that 17 USC § 402 contains an innocent-infringer defense, §402(d) specifically says that such a defense is only given weight according to the exception in §504(c)(2), which unfortunately only applies to the remittance of statutory damages according to the fair use doctrine, provided that the accused infringer was engaged in an officially recognized non-profit capacity of some kind. In other words, the average United States citizen (all other variables being equal) is not likely to qualify as an innocent infringer, yet is quite likely to be found guilty of “non-willful” infringement! In 2012, the Sony Entertainment v. Thomas-Rasset (No. 11-2820) case truly demonized file-sharing in the court’s decision:

 

“For the foregoing reasons, we conclude that the recording companies are entitled to the remedies that they seek on appeal. The judgment of the district court is vacated, and the case is remanded with directions to enter a judgment for damages in the amount of $222,000, and to include an injunction that precludes Thomas-Rasset from making any of the plaintiffs’ recordings available for distribution to the public through an online media distribution system.”

 

Just to round out the cacophony of statism, there is currently a lawsuit underway regarding none other than the traditional “Happy Birthday” song! If there was ever a good reason to have a frothing disgust at the legal profession, this would have to be it.

Surely, there must be some economic basis for copyright, isn’t there? Kinsella explains that:

 

“Property rights are not applicable to things of infinite abundance, because there cannot be conflict over such things. Thus, property rights must have objective, discernable borders, and must be allocated in accordance with the first-occupier homesteading rule. Moreover, property rights can apply only to scarce resources. The problem with IP rights is that the ideal objects protected by IP rights are not scarce; and, further, that such property rights are not, and cannot be, allocated in accordance with the first-occupier homesteading rule…because ideas are not scarce resources in the sense that physical conflict over their use is possible, they are not the proper subject of property rights designed to avoid such conflicts.”

 

In other words, intellectual property cannot be homesteaded, therefore there cannot be any such thing as copyright. If that were true, though, wouldn’t that mean there would remain only the public domain? In such a situation whereby copyright was abolished, wouldn’t there be a noticeably increased risk of the public domain experiencing the tragedy of the commons? Or is that an unrealistic fear because Internet memes disprove the viability of intellectual property all by themselves?

What if intellectual property is nothing more than a long-running scam? Benjamin Tucker postulated there are four great monopolies that are only made possible by way of government. Regarding the last of these monopolies, Tucker said:

 

“Fourth, the patent monopoly, which consists in protecting inventors and authors against competition for a period long enough to enable them 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. The abolition of this monopoly would fill its beneficiaries with a wholesome fear of competition which would cause them to be satisfied with pay for their services equal to that which other laborers get for theirs, and to secure it by placing their products and works on the market at the outset of prices so low that their lines of business would be no more tempting to competitors than any other lines.”

 

Needless to say, Tucker cared less about the legality (or even constitutionality) of intellectual property, yet greatly cared about whether such a thing was inherently just or not. Eleven years later, Tucker said:

 

“For the fourth of these monopolies, however, – the patent and copyright monopoly, – a more plausible case can be presented, for the question of property in ideas is a very subtle one. The defenders of such property set up an analogy between the production of material things and the production of abstractions, and on the strength of it declare that the manufacturer of mental products, no less than the manufacturer of material products, is a laborer worthy of his hire. So far, so good. But, to make out their case, they are obliged to go further, and to claim, in violation of their own analogy, that the laborer who creates mental products, unlike the laborer who creates material products, is entitled to exemption from competition. Because the Lord, in his wisdom, or the Devil, in his malice, has so arranged matters that the inventor and the author produce naturally at a disadvantage, man, in his might, proposes to supply the divine or diabolic deficiency by an artificial arrangement that shall not only destroy this disadvantage, but actually give the inventor and author an advantage that no other laborer enjoys, – an advantage, moreover, which, in practice goes, not to the inventor and the author, but to the promoter and the publisher and the trust.”

 

Remember, Tucker considered state socialism to be any kind of central planning, or as he succinctly described its Orwellian presupposition, “the remedy for monopolies is monopoly.” He also appeared to view patents and copyright as a form of government privilege (titles of nobility, much?). Given the stakes involved here, what are the expected consequences of such a racket? Samuel Konkin (an Austrian economist) wrote in The Voluntaryist #20 that:

 

“If copyrights are such a drag, why and how did they evolve? Not by the market process. Like all privileges, they were grants of the king. The idea did not – could not – arise until Gutenberg’s printing press and it coincided with the rise of royal divinity, and soon after the onslaught of mercantilism. So who benefits from this privilege? There is an economic impact I failed to mention earlier. It is, in Bastiat’s phrasing, the unseen. Copyright is a Big publisher’s method, under cover of protecting artists, of restraint of trade. Yes, we’re talking monopoly…[b]ecause copyrights permeate all mass media. Copyright is the Rip-off That Dare Not Mention Its Name. The rot corrupting our entire communications market is so entrenched it will survive nothing short of abolition of the State and its enforcement of Copyright…[f]or if we use the ideas or repeat or reprint them, even as part of our own larger creation – bang! There goes the monopoly. And so each and every innocent viewer must be suppressed. By the Market? Hardly. The entire contractual agreement falls like a house of cards when the innocent gets his or her forbidden view. No, copyright has nothing to do with creativity, incentive, just desserts, fruits of labour, or any other element of the moral, free market. It is a creature of the State, the Vampire’s little bat. And, as far as I am concerned, the word should be copywrong.”

 

Konkin believed that copyright is intrinsic to statism, and presumably little different from tariffs or other any form of government protectionism. Suffice it to say, attempting to reconcile the neo-mercantilism of today with what the Framers constitutionally intended uncomfortably raises more questions than answers.

Probably more important than whether intellectual property established a government racket as a fait accompli, is the fact that it has become a systematic behavior for both private and public criminals to openly abuse copyright law by using it as a form of soft censorship against their victims. Malicious or fraudulent DMCA (Digital Millennium Copyright Act) claims have been filed on the most popular social networking websites. Most notoriously is the abuse of YouTube’s automated dispute resolution mechanism that requires the respondent to give out their personal information (such as their full legal name, phone number, street address, etc.) if they want to even bother challenging the copyright claim; this is most commonly done with the goal of doxing vloggers, even those who are not politically outspoken. Karen Straughan, a men’s rights activist, has explained how her copyright infringement notices were simply deceitful attempts at getting her personal information in order to stalk and harass her. Montagraph, in the aftermath of having his entire channel temporarily shut down, suggested that the coding algorithm needs to be fixed so that Google doesn’t engage in any more libel of his good name. Hell, I was slapped with two copyright infringement notices on my former YouTube channel a few years ago, so I have no love for trolls who cause such ruckus.

This abuse of copyright has led to an emerging backlash that the alternative media is just beginning to seriously pushback against. The Chilling Effects website operates as a clearing house for DMCA abuse; this is done despite YouTube’s propaganda videos, which attempt to scare people into never mirroring other channels’ videos. Thankfully, there is an effort to get out the idea that copying is not theft, but I have a hunch that’s not going to single-handedly stop the Recording Industry Association of America.

Speaking of the RIAA, they have literally embarked on a multi-year litigation campaign against so-called “Internet piracy.” The RIAA has filed lawsuits against well in excess of 18,000 people, frequently using the legal threat of copyright infringement to extort thousands of dollars in settlements. What allegedly began as an effort to enforce the federal Constitution’s Copyright Clause has now degenerated into the federal statutory code being used as a tool of soft censorship against the alternative media, as well as the American people in common.

Ultimately, what does this all mean though? Kinsella said:

 

“We see, then, that a system of property rights in ‘ideal objects’ necessarily requires violation of other individual property rights, e.g., to use one’s own tangible property as one sees fit. Such a system requires a new homesteading rule which subverts the first-occupier rule. IP, at least in the form of patent and copyright, cannot be justified. It is not surprising that IP attorneys, artists, and inventors often seem to take for granted the legitimacy of IP. However, those more concerned with liberty, truth, and rights should not take for granted the institutionalized use of force to enforce IP rights. Instead, we should assert the primacy of individual rights over our bodies and homesteaded scarce resources.” [emphasis added]

 

Put another way, Kinsella believes that the entire concept of intellectual property is foundationally antithetical to property rights in tangible things, which is then used by the government to subvert authentically homesteaded property. The fact of the matter is that the federal government has failed to delineate where the point of entry is regarding the dissemination of information from the private to the public realm, in accordance with the Copyright Clause. This is demonstrated by the fact that federal copyright law (Title 17 of the United States Code) arbitrarily violates the right of contract when they penalize citizens for even non-willful “copyright infringement.” Considering the profit motives of the RIAA, it would seem that the protectionism that both Tucker and Konkin warned us about have fully blossomed into the cacophony of statism many suffer under today. Not only that, but the corporate whore mainstream media is using the (now) victimless crime of “copyright infringement” as a form of soft censorship against the alternative media, so they can try to shut out competition by regaining some control of the social narrative.

Can anything be done to challenge this monopoly on the expressive dissemination of ideas? Well, there are two overall strategies I can perceive – a legalistic strategy, and a civil disobedience strategy. The former would involve such tactics as pushing forward an emergent society from within the shell of the old by not only consuming public domain and Creative Commons licensed media, but also by producing original content that is released as such (like I have done with my blog). Parallel legalistic tactics would be what I would like to call the “manumission of copyright,” that is, purchasing the copyright directly from the copyright holder, and then releasing that newly purchased copyright into the public domain. Coupling these tactics with a firm adherence to the Fair Use doctrine are options that can be utilized in order to completely sidestep the copyright monopoly.

Civil disobedience, like all other counter-economic activities, necessarily entails abiding by the principle of trading risk for profit. According to the Stanford Report back in 2004:

 

“An estimated 70 million people engage in online file sharing, much of it illegal…[Stanford law professor Deborah] Rhode cited a survey of 16- to 28-year-olds who engage in illegal downloading that showed that although most were aware that they were engaging in illegal behavior, only 16 percent considered their actions morally wrong.”

 

More likely than not, the reason why 84% of those surveyed teenagers and twenty-somethings did not consider their illegal actions to be also immoral is because they intuitively understood that mala prohibita is not the same as mala in se. Precautionary measures such as using sneakernets and/or darknets, as well as obscuring your IP address, are all techniques that could lower the risk of prosecution. Assuming those measures have been taken, counter-economic activities such as digitizing and distributing published books, burning and distributing mixtape CDs, and editing and distributing DVD film collages are all ways to take direct action against the copyright monopoly, if you were so inclined. Of course, as with all forms of civil disobedience, it is absolutely necessary to have a firm security culture in place before any direct actions occur.

Stephan Kinsella’s Against Intellectual Property is an introductory work on the foundational premises of the copyright monopoly as it is today. Although I may find Kinsella’s credibility suspect because he is an intellectual property attorney himself, perhaps there is some degree of truth in specific details of the arguments he makes. All I know is that following the aftermath of the Ron Paul.com copyright scandal, I’m a bit hesitant to become an obnoxious advocate for the free marketplace of ideas, especially in mainline libertarian circles, but I figured this was the ideal opportunity to address the problem of the copyright monopoly, and more importantly, the options currently available to deal with them. I will leave you with the following bullet-point list of Wikipedia articles and other webpages that present options for you to engage in pushback against the copyright monopoly, if for no other reason than as a demonstration of just how widespread this attempted censorship of the alternative media has been over the pass several years:

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One Response to Against Intellectual Property?

  1. Pingback: Statist Vultures and the Demise of Liberty, Part 2 - Liberty Under Attack

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