Written by Darrell Anderson.
Table of Contents
The concept of intellectual property is confusing and frustrating to many people. The debate is hot in many circles. Can some sense be brought to the discussion?
The concept of intellectual property manifests in two protective forms: patents and copyrights.
Inventing is a process of fine-tuning the process of human discovery and diligence, of adapting existing natural principles and characteristics to provide useful applications of those discoveries. Modern patents are statutory legal protections for products of invention.
Writing and music are forms of expression and exploration, a process of fine-tuning the exchange of information and ideas. Modern copyrights are statutory legal protections for products of intellectual and informational discourse and exchange.
Although there is much overlap between the topics of patents and copyrights, this essay focuses only on copyrights.
What are copyrights?
Copyrights are not a “right to copy,” but rights to a specific copy of a specific object. A right is merely a social boundary recognizing certain limits to specific human actions. A copyright is a unique kind of right to control title to and distribution of a specific kind of product of labor.
In the case of when the concept of copyrights first originated that object was a book or manuscript. Today that concept includes computer software programs, musical compositions, and digitally produced recordings.
Study the debate about copyrights and one will discover many issues being discussed. Most of the various elements discussed are meaningful, but only in a limited or contextual manner. The issues commonly debated include:
Idea: an abstract construct.
Happiness: an interpreted state of personal existence derived from an individual’s perception of his or her survival and well-being.
Property: the concept of legally holding or controlling something. A concept describing boundaries through which human actions are limited with respect to other humans. Property is ownership of certain rights to an object. All property is associated with the concept of title — recognition of ownership. Title to property is the way people recognize jurisdiction over specific objects and resources. Title can be written and witnessed or simply acknowledged. Title can take the form of a deed, a bill of sale, a cash register receipt, or often, mere possession. The idea of property — jurisdiction — allows people to use resources as they see fit, and necessarily implies power to exclude. The concept itself does not convey how title is obtained or controlled, although the concept of property arises from the economic principle of scarcity. To become property an object must become scarce with respect to an entire population.
Trespass: any unsolicited human action directed specifically against another human that deprives the offended individual of personal interpreted happiness. Trespasses are acts that violate the property title boundaries of another individual — whether intentional or unintentional.
Conflict: a disagreement about the interpretation of boundaries that limit human action. Conflict occurs in three ways: 1) when one individual believes trespass has occurred or is about to occur and the alleged offender disagrees, 2) when an offender agrees trespass occurred but disagrees about how to resolve the trespass, and 3) when an individual is denied an opportunity to pursue happiness and that individual believes no restraints are justified.
Scarcity: a principle that the things humans need or want do not exist abundantly or immediately. Scarcity does not necessarily mean unavailable or nonexistent, only that supply is limited or restricted in some fashion. Scarcity in resources gives rise for potential conflict.
License: a social and legal convention whereby the lawful titleholder of property allows other people to use those resources without transferring title. Not to be confused with political permits, which often are misnamed licenses.
Possession: the concept of physically holding or controlling something. Possession does not necessarily mean one is a titleholder to property.
Crime: intentional trespass.
Self-defense: the human act of trying to prevent or remedy trespass in order to sustain the pursuit of happiness.
Restitution: an act attempting to remedy trespass.
Justice: a recognition of boundaries to specific human actions and claims, of recognizing that trespass has occurred. Justice is a recognition of a right to self-defense, a right to seek restitution for trespass.
Color of law: acting under the pretense that a statute or custom, whether or not necessary, provides justification to bypass, evade, or ignore known or accepted boundaries.
Privilege: derived from the Latin word privilegium, rooted in the words privis (private) and legis (law); and essentially means “private law” or a law pertaining to a particular person or group of people. The idea of privilege implies a structured relationship within a specific group.
Work: the process of applying physical force to move objects.
Energy: the capacity to perform work. That capacity exists in the form of atomic, light, mechanical, electrical, magnetic, chemical, and heat energy.
Wealth: anything tangible derived from labor that satisfies individual happiness. A form of usable stored energy.
Labor: the process of humans converting energy into work. Labor is a process, not property or wealth.
Production: the process of converting energy into wealth.
Consumption: the process of converting wealth into usable energy and waste.
Profit: an ambiguous term describing excess wealth. The word has meaning only with respect to an individual and has no meaning with respect to the aggregate flow of wealth.
According to some traditions, the concept of copyrights has roots in early Ireland. A bishop named Columba sneaked into the library of Finnian of Clonard, copied Finnian’s Psalter (a collection of Biblical Psalms), and then freely distributed copies to churches. This was in the day when books were hand-copied and not necessarily on parchment or paper, nor printed on a press. Finnian sued Columba in King Dermott’s court. The King reportedly declared “To every cow its own calf, to every book its own copy,” and fined Columba 40 head of cattle for distributing “unauthorized” copies of the Psalter. The reasoning behind the decree was that a stray calf belonged to the cow, and therefore the calf was the property of the individual who owned the cow.
The ancient Greeks and Romans recognized the social value of properly crediting authors. Because writing in those days were circulated in limited manners, people were not concerned about creating revenue streams from their writing efforts. The process of reproducing and distributing written products typically were controlled by the authors and was a labor-intensive process. Not until after 1436 when Gutenberg invented his printing press with movable type did the issues of duplication, distribution, and remuneration become important social issues.
The idea of copyright was not a social issue until the late 17th century. Before the 17th century authors had no recourse to protect the written products of their labor if other people chose to publish an author’s creation. However, because publication was such a labor-intensive process, most authors actually did not mind if their products were so readily distributed. Distribution in those days primarily meant fame and recognition, not revenues. In those days authors were more concerned with distributing their ideas rather than directly benefiting in a remunerative sense.
With the Licensing Act of 1662, King Charles II and the members of the British Parliament laid the foundations for the statutory concept of copyrights. That Act created a political monopoly for who could print literature.
Essentially, the Licensing Act established that authors needed a political license to publish. A license is a social and legal convention whereby the lawful titleholder of property allows other people to use those resources without transferring title. Thus, unless one believes that a monarch can own the labor of other humans, a political license is a fiat fabrication and operates under the color of law.
Under the Act only registered authors would receive the King’s permission to publish. In other words, all publications were regulated. The Act expired a generation later, but the primary purpose was to control the flow of ideas. That Act was directly used to ban certain books and authors from publication. The goal was not to protect but censor authors. Censorship is a means of controlling information and ideas.
That specific publishing registry was controlled by a group of people collectively called the Stationers’ Guild (Company). The Stationers received a fiat, statutory “legal” monopoly controlling the book publishing market. That is, they controlled the printing presses through their registry. That monopoly to control publishing is where the word copyright probably took root. A “grant” to publish was recorded in the Stationers’ registry book. Thus, the individual who’s name was recorded in the registry possessed permission to publish — but only through the Stationers.
The British Licensing Act was not a new concept to censor ideas and intellectual discourse. Previous to that Act the Roman Catholic Popes had been censoring books for more than a hundred years with their Index to Forbidden Books. Probably the most well known cases of censorship are Martin Luther and Galileo Galilei. Thus, perhaps the phrase political privilege would be better words to describe early copyrights.
A critical issue that surfaced during the “Age of Reason” was that those people granted publication rights (the Stationers) essentially held those rights in perpetuity. The authors never got back into the loop. An author had no recourse to circulate their writings if the Stationers decided to stop publishing. Thus, information and ideas did not get freely released or distributed into the public domain. The Stationers retained all rights and only those people who were authorized retained a statutory right to publish. Printing presses were not yet free. During this era most writers still sought recognition more than remuneration. They wanted their ideas circulated and discussed.
However, the world was rapidly changing with respect to sustaining needs and wants. The Industrial Age was just beginning. As the division of labor became more noticeable, and monetary systems in the form of a common medium of exchange became more common, the idea of protecting written products of labor for reasons of remuneration became more popular.
Political protection for authors arrived with the 1710 Statute of Anne (8 Anne Ch. 9). The Statute of Anne sought a compromise between circulating ideas and information and securing revenue streams for authors. In short, the statute granted a political copyright “monopoly” but for a limited period — 14 years. That political privilege could be extended an additional 14 years if the author was still alive at the end of the first 14 years (expected typical life spans were about half of those expected today). Thereafter, however, written products could be distributed freely without the author’s consent and without remuneration.
Up to the 1710 Act statutory copyrights were little more than a political method of censorship. With the 1710 Act authors received some political leverage in controlling the products of their labor. However, the Stationers still controlled the book publishing market and authors had no legal standing to protect a written product unless the book was published through the Stationers. Thus, despite politically recognizing an author, censorship still played a contributing role in the concept of statutory copyrights.
The concept of statutory copyrights received more focus on protecting the written products of authors and received a more global “sanction” several decades later when the concept was embodied into the American federal constitution (Article I, Section 8, Clause 8). Considering the foundations for the birth of the American political society, censorship was no longer an issue supporting the concept of statutory copyrights. The generally accepted belief at that time was an author’s copyright was a right held at common law, not by political statute.
The wording of that constitutional clause indicates that copyrights would be recognized as a means to promote the general good of society and more than likely is a anti-censorship effort instead of an effort to create political privilege (see Federalist No. 43). In late 18th century America there were perhaps hundreds of publishers, printers, and booksellers. Censorship was not an issue (although the Alien and Sedition Acts of 1798 threw a monkey wrench into that opinion). The primary concern was to provide an environment encouraging people to create and publish information and ideas, and subsequently with those information and ideas to provide philosophical foundations and intellectual discourse for a new and growing nation of people.
The American concept of political copyright was a common idea before the federal constitution was proposed in 1787. Several state statutes provided such protections. During this period the accredited founder of American dictionaries, Noah Webster, was instrumental in solidifying the political nature of statutory copyrights. Webster visited many state legislatures seeking statutory copyright protection for his three volume text, the Grammatical Institute. Webster sought both private bills for his personal protection as well as encouraging public bills for general statutory copyright protections.
In 1790 the American Congressional legislators enacted the first federal copyright statutes. Legislators followed the tradition of the Statute of Anne and provided a protective period of 14 years, followed by an optional 14 year period.
Although the concept of statutory copyrights as practiced after the Statute of Anne and ratification of the American federal constitution arguably was to seek a balance between protecting an author’s labor and freely circulating information and ideas to the public, authors received more political protections as history advanced.
In 1831, Congressional legislators extended the initial protection period to 28 years (along with an optional 14 year renewal period) and broadened protections to include musical compositions, again with lobbying by the then-quite-famous Noah Webster. Webster’s Elementary Spelling Book was used throughout America and in 1828 Webster had published his first American dictionary. Webster did not argue so much for the general extension of statutory copyrights as much as he argued for acknowledgement and protection for his own contributions to American society and culture. Like many people in the first 50 years of American history, Webster was a legend in his own time; and many Congressional legislators were eager to statutorily acknowledge Webster’s contribution to forging a new nation.
Contrary to modern thought and practices, early American publishers did not embrace long-term statutory copyrights. Typically authors received royalties in the form of a percentage of sales. The publisher who negotiated publishing rights with a popular author therefore tended to do quite well financially. Initially one might think that publishers would favor long-term political copyrights. However, printing a book in those days was labor-intensive and the costs of production and distribution were high. After the statutory copyright period ended a publisher no longer had to pay the author royalties, and because the printing plates already were assembled a publisher thereafter would receive increased profits. With the end of statutory protections subsequent publishers also could enter the game of publishing those writings, but the initial publisher possessed obvious competitive advantages, including the advantage of established recognition and reputation. Regardless, authors were out of the loop; hence, a desire by Webster and other authors to extend the political privilege of statutory copyrights.
In 1909 many authors, including Samuel Clemens (Mark Twain), lobbied for further extensions and Congressional legislators enacted an additional 14 years to the optional renewal period. Statutory copyrights then lasted 56 years (28 years plus a 28 year optional renewal extension). The legislation included mechanical duplications, such as the then-new process of phonograph recordings.
In 1976 Congressional legislators enacted the Copyright Act extending political copyright protection to the life of the author plus 50 years, and eliminated the statutory requirement to renew or register a copyright. The 1976 Act recognized statutory protections upon creation, as opposed to previous historical practice and legislation providing protection upon publication. For existing statutorily protected products, the 1976 Act extended protection to 75 years from the date of publication, extending by 19 years the protections of the 1909 Act. The legislation included coverage of radio and television broadcasting.
In 1998 Congressional legislators enacted the Sonny Bono Copyright Terms Extension Act, extending the statutory copyright period to life plus 70 years. However, if the copyright holder is anonymous or derived in a work-for-hire contract, statutory protection is for 95 years from publication.
Also in 1998 the concept of statutory copyright moved into the realm of digital (electronic) products when Congressional legislators enacted the Digital Millennium Copyright Act. Digitally created products include books and other literary material, but also includes computer software programs and digitally recorded musical compositions.
Interestingly, all of these statutory extensions applied to existing published products as well as future products. Arguably, such extensions are ex post facto statutes, and necessarily modify or impair the obligation of existing contracts.
In 2002 the United States Supreme Court justices heard arguments against some of these statutory extensions in Eldred v. Ashcroft. The justices upheld those previous statutory extensions.
Observing history reveals an interesting pattern with respect to the concept of political copyrights.
In one respect the copyright debate can be narrowed to a basic discussion: the concept of natural copyright versus the concept of political copyright. Although occasionally overlapping, the two concepts are not necessarily the same and in many ways are opposing.
At one end of the spectrum proponents of natural copyright seek recognition and protection for the products of their labor. Through the processes of free association and voluntary exchange, laborers expect to receive remuneration when exchanging various products of their labor. The concept of natural copyright is better translated as author’s or artist’s rights. Those rights include recognition and reputation, as well as protection against unauthorized transfers, duplication, distribution, and revisions of products. Proponents of natural copyright realize and accept natural limits to how they can exchange the products of their labor and the protections they might seek.
At the other end of the spectrum proponents of political copyright expect and demand remuneration as a political privilege and exploit various color of law arguments to seek perpetual revenue streams without further labor. Proponents seek political monopoly and tribute, not free association and voluntary exchange. Like all political privileges proponents want to forego direct labor, prohibit competition, and perpetually capture the labor of other people. Proponents of political copyright recognize no natural limits to how they can exchange the products of their labor or the protections they might seek.
Much confusion occurs because many people discuss the topic of copyright within the context of both concepts, and they rarely distinguish between the two environments.
Further confusion appears because many people fail to define the words they use in this debate.
Lastly, social systems are incredibly complex with many elements affecting the outcomes of human actions, and many people discuss the topic of copyrights from within narrow perspectives — static snapshots of an otherwise dynamic process.
There are basically two types of authors and artists. There are those who create and distribute their products primarily for intellectual recognition and reputation and do not use those specific products as a direct means of earning a living. Instead they use such products as a stepping stone to improve their market worth in other areas.
The second group of authors and artists offer their products primarily to earn a living. All authors and artists create for the intellectual joy of their pursuits, but this group of authors and artists also prefer to receive remuneration in addition to recognition because every human must find a way to earn a living.
Other than name recognition or pure intellectual discourse, the first group of authors and artists often are not interested in copyright issues or reject the concept in general; the second group is vitally interested in the topic.
Generally, within the debate about copyrights no longer is there much concern for the authors or artists or to provide incentive “to promote the progress of science and useful arts.” The primary concern today is controlling the revenue streams derived from duplication and distribution.
The debate has come full circle. Originally duplication and distribution was controlled as a means of censorship, but today duplication and distribution is controlled as a means of creating perpetual revenues. Often authors and artists are secondary players in the debate.
Unlike the 1831 or 1909 Congressional Acts where authors and artists were the prime movers for extending statutory copyright protection, the prime movers of the 1976 and 1998 Acts were publishers and other people who derived revenue streams by controlling duplication and distribution. Unlike in early American history, today publishers want long-term and perpetual political privileges because the costs of printing and distribution are dramatically less than 200 years ago. In many cases digital reproduction technology reduces the duplication and distribution costs to almost zero, meaning almost pure profit.
Perpetually controlling duplication and distribution never was the intent of the original American social convention of political copyrights — the opposite effect was desired. At the time of the American constitution being ratified, copyrights were considered rights at common law, not political privilege. The Constitutional Framers originally sought a political compromise between providing incentive and some form of remuneration to authors and artists for their labors and contribution to society-at-large, and also benefit that society by circulating information and ideas. The original intent arguably was one of quid pro quo. Whether for productive or creative reasons all authors and artists invest many hours of labor to produce the products of their labors. Many authors and artists naturally seek some form of remuneration upon publication in addition to wanting to share their ideas.
The American history of political copyright protection is a story of a plausibly reasonable idea gone sour. Today the issue is terribly confusing. The Road to Hell often is paved with good intentions, but typically is paved with many self-serving intentions.
Fundamentally, the copyright debate is about sustaining energy flows — the flow of wealth — with the least amount of effort.
Humans are uniquely different from other earthly life forms because humans possess an ability to synthesize information and act in a counter-instinctive manner. Humans often act through reason instead of instinct. Thus, all products of human labor fundamentally are products of intellectual efforts. Houses are not built by instinct but by intellect.
Additionally, humans learn most of their skills and knowledge from other humans.
Because all humans are products of their continually changing environment, and all human-made resources are the result of intellectual processes, all human-made resources are the result of previous discovery, information, and ideas.
All ideas are built upon previous ideas. There is an incountable regression that cannot be measured or defined. No human can converse without exchanging ideas. Who decides the cut-off point for determining originality? Trace all momentous ideas and you will find other ideas contributing to the final critical moment.
In one respect therefore, the phrase “intellectual property” is a redundancy. All forms of property are the result of intellectual processes.
Although the historical origin of the concept of property is speculative, the modern concept is related to the economic principle of scarcity of resources. Scarcity creates potential for competition, competition creates potential for conflict, conflict creates potential for violence, and violence creates potential for injury or death.
The concept of property is an abstract construct. Excepting humans, other living entities do not recognize abstract constructs and by instinct generally abide by a universal principle of mere raw acquisition. The concept of property is a human invention to create knowable boundaries to limit and guide human action. Those boundaries help people reduce conflict, to peaceably regulate competition for scarce resources, and to encourage voluntary exchange.
Abstract thoughts and ideas reside within the conditional metaphysical realm known as the mind. All thoughts and ideas are subject to a process of interpretation. Can ideas be considered scarce or can only tangible physical objects become scarce?
Some people argue that because thoughts and ideas reside within a specific individual’s mind they are property. Are they? Is there scarcity? An idea that is never disclosed to other people cannot be demanded by others or experience scarcity.
Perhaps people are confusing the concept of possession with the concept of property. Property is a social or legal boundary whereas possession is a physical boundary. Only if other people are demanding the use of those thoughts and ideas can those thoughts and ideas possibly become scarce and become classified as property. Whereas the concept of possession retains meaning without such demand, scarcity and property are hollow concepts if there is no wide-spread concurrent demand for a specific object.
Although certainly in possession, people do not classify as property the air they breath. The concept of property is a social convention. Possession does not necessarily create property. Possession is important to initially establish a concept of property, but the reverse is not true. The rest of nature does not recognize a concept of property although continually practicing possession. Likewise, ideas can be possessed but are not necessarily property.
There always is a spillover effect when people exchange ideas and information. Some people go as far as to believe that the final package in which an idea is contained cannot be reverse engineered without infringing upon one’s copyrights. Yet, reverse engineering is a spillover effect that never can be stopped. Like all animals, humans are curious beings and seek to explore their universe. Humans go one step further by trying to understand why things function the way they do. Every day every human witnesses and observes how other humans act, and from those observations develop their own means and methods to solve problems.
People place subjective value on thoughts and ideas. People do not demand thoughts or ideas, but the tangible products or applications that might be created or derived from those thoughts or ideas.
Perhaps one of the great tragedies of this debate is a confusion over the definition of labor. Essentially, people argue that labor is something that can be owned but argue that ideas cannot be owned. As previously mentioned, many people confuse the social and legal convention of property with the physical boundary of possession. However, the confusion goes deeper. Both ideas and labor are intangible resources. Neither resource can be “owned” in the social sense of property. Nobody can touch or see an idea or labor.
By definition, energy is the capacity to perform work, and work is the process of applying physical force to move objects. For humans, the process of converting energy into work is called labor. Labor is a specific type of process of converting energy.
All labor is the conversion of energy into work but is recognized in two broad forms — productive and creative labor. Productive labor satisfies the desire for direct consumption. Creative labor satisfies the joy of expression and intellectual curiosity. Humans provide productive labor to plant and harvest beans for supper, and creative labor to plant flowers for interpreted pleasure. Creative labor consumes resources but for no other reason than to provide mental happiness. Creative labor is sometimes called recreation or leisure. Authors and artists often combine both types of labor in pursuing their creative efforts.
A cornerstone of the concept of property is that any unowned resource to which an individual adds his or her labor belongs to that individual. This concept was popularized by John Locke. However, labor is not something humans possess or have title in, but merely a process describing something people do. Labor is not a tangible object but a process of converting energy and applying a force to do work. Nobody can touch, hear, taste, see, or smell labor. Thus, the process of adding labor is not what creates property. Mixing labor with resources only provides publicly knowable evidence of somebody already possessing and occupying resources.
Confusion arises because labor is no more a thing to be “owned” than an idea is a thing to be “owned.” Labor is not tangible. Labor is a process — the conversion of energy into work. Through a flawed definition of labor, people argue that in one case an intangible can’t be owned, but in another case can be owned.
Part of the current debate occurs because people use a flawed definition of labor. Both sides define labor as a thing or property rather than as a process. Through that error both sides disagree and argue about whether ideas can be property. There is no need for the disagreement — properly define labor as a process instead of a thing. If people use a correct definition of labor both opponents and proponents of copyrights can debate the topic from common ground. Instead of arguing about abstract ideas they instead can argue about the tangible result of labor.
Today, labor is commonly considered to be property. Many people presume that labor is a resource that is owned and people can offer their labor to other people. This understanding typically is traced to John Locke. However, because labor is something humans do and not possess, what people actually are offering to other people are certain deliverables — specific goods or services derived from that labor.
The misconception is derived by substituting the process of labor for the products of labor. The traditional definition of labor as tangible property creates problems in various arguments. For example, many people disagree divisively about the concept of the surplus value of labor — which is derived from a labor theory of value. There is and never will be any agreement over that debate because the definition of labor is incorrect. Labor is intangible. However, correctly define labor as a process and dramatically the surplus value of labor debate reduces to discussing the value of whatever is produced from the process of labor. Although still subjective because all value is subjective, discussing the exchange value of a tangible object is much easier than discussing the value of an intangible process of labor.
By defining labor as a process instead of a thing, people no longer can argue that labor is property. Therefore, both sides need only focus on the tangible results of labor. Those results are tangible and tangible objects can be classified as property.
Some people will realize that such a definition of labor disagrees with Locke’s theories. So the punch line is this: Locke was wrong. Labor is a process, not a thing to be owned.
Some people argue that information “seeks to be free.” Others argue that because information “seeks to be free” the copyright issue is about “fair use” of information.
Information does not “seek to be free.” Information is inanimate and incapable of thought or emotion. Information merely is. What should be expressed is the concept that people seek information. Specifically, people seek information that will improve their own personal definition of happiness. People seek information that will help them produce more wealth with less labor. People seek information that improves their market exchange abilities.
In an environment of free association and voluntary exchange, information is exchanged by agreement. People might negotiate something in return for information, or they might give and share information freely.
Although generally all humans benefit from the free and open exchange of information, there is at least one obvious reason why some people might refrain from sharing information. That obvious condition is when an individual benefits uniquely by possessing certain information. This a result of how the flow of wealth functions. People need to earn a living. and they prefer to do so with the least effort possible. Unique information tends to create opportunities for continual revenue streams and is valuable to the possessor. Such information creates a potential fulcrum where an individual might find leverage to increase the flow of wealth.
An individual naturally wants to protect such information to protect those revenue streams and increase wealth. The issue is not that information “seeks to be free,” but that people prefer to increase their wealth with the least possible effort. Political processes are notorious for coercing people into converting free association and voluntary exchange into a process of privilege and special favors. Therefore, many people will use political systems to protect certain information. Conversely, information consumers will tend to avoid the cost of accumulating information.
Many people argue that copyrights are a restriction of “free speech.” Yet, many people fail to realize that the concept of free speech has meaning only within a limited context. Many people acknowledge that nobody has the right to barge into a neighbor’s house without permission solely for the purpose of speaking freely. There are customarily accepted boundaries limiting the concept of free speech. That commonly accepted boundary is defined by the concept of property.
Free speech is meaningless without reference to the property boundaries where one chooses to speak. If an individual does not possess rights to a specific property area, either through direct title or by license, then the concept of free speech is meaningless. Without permission one does not print anything they want in the local newspaper unless the owner of that newspaper provides consent to print the information. Without permission one does not stand in a neighbor’s front lawn giving a speech contrary to the ideas and beliefs of the neighbor.
The fact that today the cost of duplication and distribution can be reduced to almost zero does not negate the fact that an author or artist invests time and labor to produce related products. Many people are concerned that political protections are necessary because those duplication and distribution costs have all but disappeared. Modern technology has provided people the ability to share information at a minimal cost previously unknown. People want to share ideas and information with as little cost as possible. Often forgotten is that people are merely trying to avoid and evade the costs of buying such products. Why?
All people generally desire to satisfy their pursuit of happiness with as little effort as possible. Because of the high division of labor and using currency to facilitate the exchanges of wealth, the concept of monetary prices and costs plays an important role in guiding people to pursue their happiness cost-efficiently with respect to the concept of money.
One obvious reason for people desiring to avoid conventional duplication and distribution costs of sharing information is the overwhelming impact of coerced wealth redistribution. Currently many people pay numerous hidden costs as well as obvious forms of coerced wealth redistribution such as taxation. There also are the not-so-obvious personal and societal effects of compound interest and currency inflation.
Eliminate coerced wealth redistribution and the argument to avoid the costs of buying the products of authors and artists is rendered less powerful. The reason many people are eager to evade the costs of exchanging informational products offered by authors and artists is they have so little left over after the effects of coerced wealth redistribution.
In an environment void of coerced wealth redistribution, the concepts of free association and voluntary exchange become more meaningful and people would be more willing to exchange tangible products for the products of authors and artists simply because they keep more of what they produce instead of supporting coerced wealth redistribution.
Liberty cannot exist without an ability to control the products of labor. Coerced wealth redistribution necessarily impedes and opposes the concept of liberty and enslaves all people. Coerced wealth redistribution prevents laborers from keeping, controlling, and contracting the products of their labor.
The entire issue of copyrights is one of understanding energy flows and how those energy flows are hijacked in a society of people endorsing coerced wealth redistribution. A key to resolving the volatile copyright debate is to eliminate coerced wealth redistribution and to endorse free association and voluntary exchange. No other avenue is possible.
The challenge is not philosophical but practical. Recognizing coerced wealth redistribution often is straightforward for most people, but for other people often is not easy to recognize. Various political processes tend to mask the process of coerced wealth redistribution. People often forget that the cost of various goods and services often are subsidized by coerced political processes such as taxation.
Another example is the concept of compound interest, a process that contractually indentures many people into many years of overproduction to satisfy “legal” debts. Aggregate overproduction necessarily requires aggregate overconsumption to maintain the flow of wealth. Contractually, nothing can stop people from charging compound interest, but the idea could become socially unacceptable and unconscionable much like murder, theft, or fraud. Eliminate the nonsense of compound interest and people then retain more of what they produce instead of watching much of their labor being siphoned by third parties who operate by political privilege to redirect the flow of wealth.
Likewise, currency inflation distorts the expected future exchange power of currency. Currency inflation encourages immediate consumption rather than moderate consumption. Currency inflation encourages an attitude of disregarding tomorrow — eat, drink and be merry today because the purchasing price will rise tomorrow.
Some people argue that authors and artists should be compensated for the products of their labor but in doing so they often confuse what is being exchanged. All humans exchange wealth for wealth. The medium otherwise known as monetary currency is merely an intermediate step in those exchanges. Both compound interest and currency inflation cloud that exchange process.
Some people argue that many authors and artists would continue to create and produce even if there was no exchange of wealth. They might, but only if their essential hierarchy of needs was being satisfied. If such people are starving, without adequate clothing and shelter, and live in a continual condition of fear against attack, they likely will not produce for creative reasons regardless of their desire.
One traditional argument behind the concept of political copyrights is no individual will be motivated to innovate and produce commercially if there is no means of protecting that effort. Authors and artists will not assume various risks if there is no guarantee of protecting those products.
Although the risk versus benefit relationship is a part of everyday life, many people nonetheless pursue ventures despite various risks. In other words, the commonly accepted idea of providing a political environment to promote enterprise is a myth. People routinely pursue risky ventures even without any fiat, statutory “protections.”
Because of the vagueness of the idea of “encouraging” authors and artists to produce, and the original history of copyrights being rooted in censorship, many people argue against the concept of political copyrights.
The baby should not be thrown out with the bath water. Even the blind hog occasionally finds an acorn, and that means even with statist roots some ideas are worth discussing. The copyright debate is such an issue and essentially boils down to the difference between natural copyrights and political copyrights. The debate is between free association and voluntary exchange, and totalitarianism.
What is lost by many people is the author or artist ultimately decides how to control duplication and distribution. Authors and artists do this all time by declaring what rights they are willing to sell to other people.
There is a difference between what an individual buys and the bundled property rights attached to that purchase. Buying a book does not necessarily need to imply carte blanche rights to do anything the buyer pleases. Although rarely practiced, books can be sold with restrictive covenants attached and without necessarily transferring title to the contents. The concept is known as licensing. In modern history the concept of licensing is recognized in the area of software programming. Licensing also is a well established concept at the local rental store — you do not buy a post-hole digger, you lease.
Another well known application of licensing is the non-disclosure agreement.
When an individual licenses a product of his or her labor, that individual is not selling the product but leasing usage rights. Although a book, CD disk, or web site might be used as the medium to provide that usage, that object is not what is being sold. Thus, a musical lyric or a book character might be retained in the mind of the user, but the license for using those properties do not allow direct profit or the right to transfer those rights. The licensee does not own what is in the mind of the lessee, but does retain rights to the product leased. There is a difference between the rights of a buyer and the rights of a lessee.
Too many people want to convert the topic of copyright into an either-or debate. Ownership and title is a concept associated with property, not possession. Although the old adage that “possession is nine-tenths of the law” generally is true, the adage is meaningless when titles, contracts, and licenses are involved. When titles, contracts, and licenses are involved many people often confuse the concept of full exchange with the concept of limited usage.
The third parties involved in duplication and distribution often are the people who want to create a perpetual revenue stream. Therein lies another clue to this debate. The dispute is not necessarily between artists, authors, and respective consumers, but the people in between who siphon the process. Eliminate the middle people and the remaining debate is about how an author or artist decides to control duplication and distribution.
Controlling the form in which information is presented is not a matter of censorship, but a matter of controlling future profits. The modern approach is that future wealth can be created perpetually. The political concept of copyrights — as opposed to the natural concept — is to create a virtual perpetual motion machine of residual revenues. The modern political concept of copyrights is to prevent competition and subsequent improvement of information, not to encourage creativity. That modern notion is contrary to the social intent of the original Statute of Anne and American federal constitution.
One modern response against the theory of political copyrights is the “copyleft” movement. In theory, copylefts are not an attempt to fight the social notion of natural copyrights, but is an attempt to open the channels of duplicating and distributing information and ideas. This is what authors and artists typically want to do. Copylefts are an attempt to negate the idea of political privilege and monopolizing information and ideas. Such an effort should be applauded, because copylefts still allow room for authors and artists to claim natural copyrights for the products of their labor. Therein lies a base issue: protecting an author’s or artist’s original labors but not creating a virtual perpetual monopoly machine. Much up-front labor is invested long before a book, song, or software program is published.
The recent behavior of people with respect to music file sharing across the internet indicates that generally, people like to download music files for free, then test and pass along to friends. There can be little argument that some people download such files strictly to avoid all costs, but many listeners eventually buy albums and often attend live concerts. In other words, artists still receive recognition and remuneration for their product.
Many musical artists therefore realize that to some extent downloading and exchanging musical files is a form of free advertising. From the listener’s perspective, testing music files in such a manner is no different than listening to music on the radio. Of course, radio stations pay license fees and support their own business with advertisement revenues, so in reality listeners do not listen for free — unless they are good at ignoring the advertisements.
If one looks at the scenery, the people who are screaming the most against such practices are not the music artists but those third party middlemen who benefit from the artists’ product — the duplicators, distributors, and attorneys. Technology has reduced to almost nothing the cost of duplicating and distributing music files. In other words, artists now could eliminate the middlemen from the old formula. There is no reason today that artists could not duplicate and distribute their products directly and all people could resort to a healthier social concept of natural copyrights. Pay attention to who is actually making noise in this debate.
What about books, essays, and commentaries? Writings today are no different from music files. The cost of distributing an electronic copy of a book — an e-book — is virtually costless. The cost of publishing an essay or commentary is almost non-existent, needing only a personal web site; and not even that if an author can publish at another individual’s web site.
The cost of producing such products, however, is not costless. Authors and artists invest much time, experience, and research into producing their products. No human is capable of producing instantaneously or without effort. Humans can act only sequentially, meaning when they create their products they cannot devote time and labor to other pursuits. Thus, the element of scarcity still plays a role in defining what authors and artists produce. Such tangible products of such labor certainly qualifies as property.
The word monopoly implies using force and coercion to restrict human actions. Some classic examples of a “natural monopoly” include the small community of people with one general store, or electric power utilities. However, by definition “natural monopolies” are not monopolies but merely opportunity and good fortune. As long as free association and voluntary exchange are honored, any competitor can enter such markets, nobody can be prevented from entering those markets, and consumers always can vote with their feet. The use of force and coercion prevents such competition or consumer choice. Also, there are natural limits to any natural monopoly because if prices are raised too high or the quality of goods and services deteriorates, competitors will be encouraged to enter that market and consumers will look elsewhere to satisfy their needs and wants.
Authors and artists typically do not argue that they want to monopolize ideas and information. Observation reveals that authors and artists often create and produce to encourage the exchange of ideas and information. Their concern is about receiving reasonable rewards and recognition for products of their labors; specifically, the process whereby their labor developed and packaged those ideas and information. There is a distinct difference. The people who typically argue for prolonged statutory protections are the third parties who get involved — distributors and attorneys; people who often control duplication and distribution.
Prolonged political protection of copyrights provides an environment of artificial scarcity. Statutory copyrights are political privileges interfering with the natural process of free association and voluntary exchange. The only purpose of political copyright is to create scarcity where none previously existed. The reason people try to create artificial scarcity is to provide themselves better leverage with respect to the flow of wealth. Long-term statutory enforcement is not about controlling information, but how duplication and distribution can be controlled for long-term profit.
Because the modern economic model is defined by the division of labor and using currency to facilitate exchanges of wealth, people seek ways to increase revenue streams in order to improve their personal flow of wealth. People therefore seek monopoly, not free association and voluntary exchange, nor the voluntary exchange of information and ideas.
In an environment of free association and voluntary exchange, no monopoly is possible with natural copyrights. Monopoly is possible only through political processes where force and coercion are routinely used as well as the threat of violence.
Because the process of perpetual copyrights is a statutory privilege, statutory copyrights cannot exist without political muscle. Modern statutory copyrights are monopolies created by political fiat, not by free association and voluntary exchange.
What must be understood about the entire political copyright debate is the philosophy of statism.
Statism is a philosophy of many people trying to use political processes to create artificial scarcity. Creating artificial scarcity is a means of increasing fear and diminishing perceived security. Artificial scarcities tend to encourage people to hoard and stockpile rather than trade and exchange. Artificial scarcities encourage destructive competition and tend to produce conflict. All processes of creating artificial scarcity are proverbial unstable snowballs causing avalanches. The more artificial scarcities that exist, the more acute the problem becomes. Current political processes have created hundreds and hundreds of artificial scarcities.
Consider the effects of political privileges such as land zoning and regulation, minimum wages, price controls and fixed or minimum price laws, occupational licensing, affirmative action laws, unlimited patents, legalized cartels, incorporation charters, associated protections through special legislation, subsidies, monopoly, anti-trust laws, eminent domain, asset forfeitures, coerced unions and closed shops, regulated educational systems, trade restraints, welfare, and taxation.
All political privileges create artificial scarcity, which creates monopoly powers, which provides virtual perpetual revenues to redirect the flow of wealth under the color of law. Political privilege tends to provide regulated but almost guaranteed profits. Political privilege is nothing more than rent seeking. All political privileges circumvent free association and voluntary exchange.
Political copyright is no different than any other political privilege. The primary distinction between natural and political copyrights is a result of people failing to recognize and establish property boundaries and rights at the source. The concept of rights is attached to the concept of property. The concept of property is rooted in the economic concept of scarcity and a desire to peaceably discourage conflict and violence. Eliminate the political shroud and what is left but the rights of the author or artist to decide how to duplicate and distribute the products of his or her labor?
Proponents of natural copyright are more inclined to think about rights at the author’s and artist’s level. That is the essence of free association and voluntary exchange. Proponents of political copyrights are more inclined to think about political privileges instead of rights, and are more concerned about controlling duplication and distribution.
People get confused between the two concepts of copyright because they fail to distinguish between the natural and normal process of government with the unnatural and fiat process of statism. Such people fail to distinguish between property rights that evolve from free association and voluntary exchange and privileges that evolve from fiat political power.
Fundamental concepts of self, property, rights, contracts, and consent provide people the foundations they seek to peaceably regulate human actions. These concepts arise because of the desire to control and eliminate conflict and violence, and a desire to sustain energy flows in a peaceable manner.
This effort or process to peaceably regulate human action and provide for societal order often is referred to as government. Both individual and mutual survival would be difficult without some sense of order and knowable boundaries.
Like other ideas, government is a concept. Government is a process, not a thing or an entity. The term implies a collective voluntary restraint to provide an ordered community with respect to fundamental rights and property titles. At a fundamental level, government is a societal mechanism and nothing more.
Statism, however, is a philosophy where people use force and coercion to satisfy needs and wants. Political systems provide opportunity to bypass the normal and natural process of government, and provide opportunity to bypass free association and voluntary exchange. Political systems are designed to function by privilege.
The debate about copyright is reduced to the topic of scarcity and sustaining energy flows. In the modern climate, political and monetary systems are designed to function create artificial scarcities, and to create fear and uncertainty about the future. Modern authors and artists are unable to trade the products of their labor in an environment of free association and voluntary exchange because they are compelled to compete within the political world of statism. Authors and artists need to eat and survive and they struggle to do so in the current world because the political and monetary systems are designed to encourage destructive competition rather than cooperative competition. Many authors and artists therefore seek protection within the belly of the beast by opting for political copyright protection. Political systems create a simple system of survival — plunder or be plundered.
Within the current political and monetary systems, authors and artists (and every other human too) are compelled to compete for pieces of paper (or equivalent electronic digits) that represent future exchange power. Nobody is allowed to trade and exchange within the context of the present time domain because the entire exchange process is coercively moved into the future time domain by creating fear and uncertainty through hundreds of artificial scarcities. The debate about copyrights is about trying to secure a way to stockpile future exchange power in order to diminish fears and uncertainty about the future.
The core problem is not the issue of copyright, but the political and monetary system.
The question of trespass must be addressed. How might an author or artist claim damage to person or property when other people steal the products of their labor? If there is no trespass then how can the concept of natural copyrights find meaning? Simply put, if an author or artist duplicates and distributes a product and declares the terms in which that product can be consumed, then authors and artists provide themselves both social and legal standing to protect their labors. The remaining question is how they can protect those products.
In a statist-free world, nothing stops an author or artist from claiming natural copyrights to products. The question is whether the author’s or artist’s claim would be enforceable. To be enforceable, all parties must be fully informed. That is one reason why education is important, especially concepts such as good faith notices. Like many other human actions, from an early age people must be taught the concepts of property and the reciprocating mutual benefits of protecting the fruits of labor — and the reason why such concepts exist.
The concepts of property and rights are human social conventions helping provide knowable boundaries to limit and guide human action. Providing knowable boundaries helps reduce the possibility of trespass. Reducing the potential for trespass reduces conflict, and thereby reduces violence. The rest of the universe “practices” a jungle law approach toward survival. Yes, the concept of copyrights is a social convention. However, people can create such rights and such rights can become naturally occurring through customary law. Yet, without enforcement options such concepts are meaningless.
How would natural copyrights function in a world of free association and voluntary exchange? More specifically, how would authors and artists encourage consumers to buy their products without using the force and coercion of statism?
Nobody can predict with certainty because from inception the history of the concept of copyrights has been clouded by the political philosophy of statism. The concept of copyright never has had a chance to evolve naturally through free association and voluntary exchange, to develop according to customary law instead of fiat political law. Copyright only has been known within the context of political privilege. An educated guess is possible, however.
In an environment of free association and voluntary exchange, author’s and artists can exchange the products of their labor in only three forms:
Consumers must remember that although duplication and distribution costs today are virtually zero, and the form of publication is physically different from the past, the social concept of copyright does not change. Authors and artists still produce only by exerting their labor. Duplicating and distributing music or texts in the form of electrons in a wire is little different than duplicating and distributing the electrons on a piece of paper. Only the medium changes.
Likewise, labor is a process of converting energy into work, and regardless of the form of duplication and distribution, labor must be expended to produce those products. The costs of that portion of production never will be zero because the time domain is involved and humans can act only sequentially.
Can electronic forms of texts and music circulate in a non-statist market? That is already being done successfully. What is more important is how might authors and artists find remuneration for their efforts? Few would argue that authors and artists expend much time and labor into producing their products. Hardly a person exists who does not want to receive some reasonable compensation for any amount of labor.
There is no reason why electronic renderings of music and writings cannot operate using a social convention of natural copyrights. Thus, without the statist muscle another means of protection is necessary. There is only one long-lasting solution. A widespread educational effort is necessary and some means of blacklisting or ostracizing those people who do not operate based upon socially reciprocating benefits. Such practices are already practiced in the electronic exchange world, such as with E-bay.
Authors and artists have social and legal standing to desire some form of remuneration, but only from within the environment of free association and voluntary exchange. From a property rights perspective, people have standing to seek compensation for any exchange. The issue is not the information or ideas that are being presented to the public, but the form in which they are distributed — the actual tangible product. Although most authors and artists create for pleasure and self-gratification — and always will, many also produce in the hopes of providing subsistence. Without a statist enforced copyright protection, what would authors and artists do?
Authors and artists must learn how to protect the products of their labor in an environment of free association and voluntary exchange. Theft still will occur in a state-free world, just as theft still exists in the statist world. However, in an environment where people are free to associate and exchange voluntarily, and do not suffer from coerced wealth redistribution, most people would be more likely to honor the social convention of natural copyrights. Many people today steal the products of other people primarily because of the high costs of satisfying needs and wants. Those costs are high because of coerced wealth redistribution processes.
The essential challenge today is people are rebelling at high consumer costs when they know that the costs of duplication and distribution are virtually zero. This rebellion is additionally fueled by being trapped in a political system of coerced wealth redistribution. The people in the middle of that process are benefiting enormously and consumers are rebelling — unfortunately to the sorrow of the authors and artists.
The distortions of modern political and monetary systems have clouded the discussion. The original intentions of political copyright were well founded for their time, despite the blind hog of statism being used to provide those protections. Such motives might have been well intended but are nonetheless statist interferences with free association and voluntary exchange.
The copyright debate should not focus on how ideas and information should be exchanged because nothing can stop that normal and natural process. The issue is how to encourage natural copyright while dismantling political copyright.
With respect to natural copyrights, free association, and voluntary exchange, several points of discussion are irrelevant to the debate. The disagreement about controlling ideas, information “seeking to be free,” and “free speech” all have meaning only within the context of political copyrights. Those points of contention also have meaning only if political copyrights are used as a form of privilege, censorship, or monopoly and are used as a means of privilege to bypass free association and voluntary exchange in order to coercively redistribute and increase the flow of wealth.
The reason those topics continually appear in debates is because of the artificial scarcity distortions introduced by political and monetary systems.
Coerced wealth redistribution dramatically changes the discussion about copyrights. Coerced wealth redistribution is possible only within political processes. The root issue then is not the concept of copyright but people using political processes to prevent free association and voluntarily exchange, of coercively redistributing the flow of wealth, and of retaining the products of labor that encourages peaceable and cooperative exchange. All of these processes create artificial scarcity, which distorts any individual’s ability to make informed decisions.
In a statist-free world, hopefully contracts and licenses will guide human actions, not politicians and bureaucrats acting on behalf of their own and other special interests. There is no reason why some form of the concept of copyrights cannot exist without political interference. Copyrights can and should exist through free association and voluntary exchange, instead of through the virtual perpetual motion monopolies of statism.
The battle today is not so much from authors and artists as from those people who control duplication and distribution. Now that duplication and distribution are available for almost nothing, those third parties are the ones making the most noise. The same thing happened when Edison’s light bulb displaced gas lamp lighters and the automobile displaced horse carriage manufacturers.
Few people deny that authors and artists still control the production phase to produce the creative efforts of their labor. What is left, however, is now that technology has all but eliminated the costs of duplication and distribution, authors and artists need to learn how to control those stages of disseminating their products.
Such a thought is troublesome for many people because humans are venturing into territory never before experienced. The concept of copyright never has existed outside the environment of statism. Thus, this is new ground for everybody and new ground means new solutions. Throughout history humans have had to derive new solutions to encourage peaceable coexistence.
The primary reason why the topic of copyrights is so volatile is no non-statist solution is widely practiced. In practical terms that means few people have a solution to replace the existing political process.
The challenge is current political and monetary systems discourage efforts to make informed decisions — all because of hundreds of artificial scarcities.
Additionally, at one end of the spectrum are people who believe that information “seeks to be free,” that authors and artists labor for free, and there are no social rules to protect authors and artists. These are the people who would steal even under ideal social and communal environments. Such people can call themselves whatever they want but they are masquerading theft under some strange philosophy that few people understand.
Another reason why the topic is so volatile is there is no peaceable remedy at hand to resolve trespasses when such people willfully and knowingly violate the natural copyrights of authors and artists. The only current solution is to seek remedy through statism. The issue of trespass is a serious issue and readers must realize no “easy” solutions are readily at hand.
Study the issue further and one will find only a few non-political solutions, but those solutions leave everybody feeling empty. Why? The reason is that most solutions are empty as long as statism, a corrupt monetary system, coerced wealth redistribution, etc., continue to exist. Unless root problems are addressed, secondary issues such as copyrights are not easily resolved; and probably never will be.
Perhaps, in the end, the best social rule for such trespassers is “Some folks just need killing.” Or, at least, severe ostracism.
Separate the wheat from the chaff. Eliminate the political third parties who stand the most to lose in this argument and the debate becomes more clear and easier to discuss. Eliminate socially suffocating ideas such as statism, compound interest, currency inflation, and coerced wealth redistribution and everybody then retains more of what they produce. In such an environment people then enjoy more flexibility and discretion to exchange with and support the authors and artists they enjoy.
The true debate is not the mechanics of protecting copyright. Fundamentally, this is an issue of controlling energy flows and the flow of wealth — specifically the hundreds of ways that process is coercively redistributed. Nothing more, nothing less.
Should that flow be controlled through free association and voluntary exchange, or through the force, coercion, and threat of violence provided through statism and political processes?
Eldred v. Ashcroft, No. 01–618; filed May 20, 2002, argued October 9, 2002, decided January 15, 2003.
Charles II Statutes, Licensing Act of 1662.
Public Statutes-at-Large, Act of May 31, 1790, Ch. 15, 1 Stat. 124.
Public Statutes-at-Large, Act of Feb. 3, 1831, Ch. 16, 4 Stat. 436.
Public Statutes-at-Large, Act of Mar. 4, 1909, Ch. 320, 35 Stat. 1075
Statute of Anne, 8 Anne Ch. 9, 1710.
“Against Intellectual Property,” by N. Stephan Kinsella, The Journal of Libertarian Studies, Vol. 15 No. 2.
“Batty patents,” by Ilana Mercer.
“Constructing Copyright’s Mythology” by Thomas B. Nachbar, The Green Bag, Vol. 6 No. 1.
“Copy Fighting,” by Tom W. Bell.
“Copy Music, Destroy Civilization,” by David Freddoso.
“Copyright Contradictions in Scholarly Publishing,” by John Willinsky.
“Creation Myths,” by Douglas Clement.
“Do Patents and Copyrights Undermine Private Property?” by Ilana Mercer and N. Stephan Kinsella.
“Government and Microsoft: a Libertarian View on Monopolies,” by François-René Rideau.
“How Things Would Work in a Copyright Free Universe,” by Ilana Mercer.
“Intellectual Property: Copyright and Patent in Liberty,” from The Debates of Liberty, (unpublished manuscript), by Wendy McElroy.
“Is Intellectual Property Legitimate?” by N. Stephan Kinsella.
“Long Live Intellectual Property Rights!” by John deLaubenfels.
“Rights in Conflict?”, originally at http://www.free-market.net/spotlight/iprights/, by Sunni Maravillosa.
“The Libertarian Case Against Intellectual Property Rights,” by Roderick T. Long.
“Thoughtcrime,” by Roderick T. Long.
For a broader look at the topic of “intellectual property,” see Intellectual Property — The Real Argument.