So, I recently stumbled on a site called LDS Liberty, who says that their mission is: “Advancing the cause of liberty in light of the restored gospel.” As both a Latter-Day Saint and a libertarian, that sounds pretty good to me! Except that I found the site when one of my searches brought up this page: Our Right to Intellectual Property Through Contract, by Johnny Hardy. I was not very enthusiastic about such an article, but I gave it a read, and now I’m going to give it a write-up.
The article starts out by giving props to the Constitution and noting that the Constitution grants the government the 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”. There was a time when this would have been very persuasive to me, but that time is past. For one thing, the Constitution isn’t perfect. There are some smart folks, like Sheldon Richman and Wendy McElroy, who argue that the Articles of Confederation was a superior document and that replacing them with the Constitution was a bad idea. Some have even called the ratification process a coup d’état on account of the shenanigans involved in the process. To ignore such things is sheer folly, and even if we choose to stick with the Constitution, we should be aware of its shortcomings, and of the messy political process that established it.
Speaking of shortcomings, let’s now have a look at Article 1, Section 8, where this whole “promoting progress through exclusive rights” business comes from. The traditional wisdom is that copyright and patents are a logical application of this power. Traditional wisdom often gets things wrong, and I think it gets it wrong here. Crosbie Fitch argues, in this post and several others, that Congress never had the power to grant broad privileges like patent and copyright, because the Constitution only empowers them to “secure” natural rights already in existence. As he puts it in this post:
An author’s exclusive right is that they may naturally and self-evidently exclude others from access, communication, reproduction, performance, possession, or any other use of their writings, i.e. those in their possession created by themselves (privacy extends this to others legitimately obtained).
Copyright is a privilege granting the holder with the power to prosecute anyone who reproduces or publicly performs a particular work (among other uses), i.e. the power to enforce the suspension of the public’s right to copy, to share or build upon the covered works of art in their legitimate possession.
In short, an appeal to the Constitution is not going to convince me of the goodness of IP.
Johnny Hardy then claims: “Modern prophets have taught that IP should be protected.” He offers two citations for this: the Gospel Principles manual and a talk by David A. Bednar. Good sources, but not without their problems. Kevin Brown, commenting on Johnny’s post, points out that neither of these sources count as official church doctrine. If you’re not Mormon and are confused by all of this, let me clarify: our canon consists of the standard works (Bible, Book of Mormon, D&C, Pearl of Great Price) and the declarations at General Conference. All else is interpretation and extrapolation, and while a church manual and a CES devotional are certainly very good and trustworthy interpretations of the word of God, even these are still prone to error. Just look at the internal disagreement that Latter-Day Saints have had over evolution. In short, our scriptural canon is open, and not always clear cut, and while there are some areas where the word of God is quite clear (“thou shalt not steal” and such), there are other areas where God has declined to clarify, leaving it to us to figure out the best course of action. The manual and Bednar’s talk are good guides, but in this area, I think that both of them are mistaken.
The Gospel Principles manual simply declares: “Copying music, movies, pictures, or written text without the permission of the copyright owners is dishonest and is a form of theft.”. I disagree on both counts. First, calling it “theft” is wrong. As Amlan Mohanty and Mike Masnick and Nina Paley have all argued, copying is not theft. In fact, during one court case, the judge ruled that the MPAA could not use the terms “piracy”, “theft”, or “stealing” to describe copyright infringement. So please, don’t call copying “theft”, and don’t call it “piracy”, either. The use of the “piracy” term is an old act of blatant propaganda, and we should all be ashamed of ourselves for falling for it.
Then, there’s the business of calling it “dishonest”. This accusation of dishonesty is also in Elder Bednar’s statement: “Deceitful acts supposedly veiled in secrecy, such as illegally downloading music from the Internet or copying CDs or DVDs for distribution to friends and families, are nonetheless deceitful.” Well, any act of copying can be dishonest, but that does not mean that copying is inherently dishonest, not even when it comes to copying CDs. As I argued in my disagreement with J. Neil Schulman, copyright infringement usually consists of telling too much truth, often in a manner that makes it too easy to remember. It is folly to declare that all such acts are dishonest. We should know better than that.
Now, if Johnny Hardy had only been making an appeal to established authority, we’d be done here, having just shown that the relevant authorities have nothing to say to us on this matter. But Johnny has an argument of his own to make, and it deserves our attention. Johnny’s argument is as follows:
1. Property is defined as the fruit of our labors. Much labor is goes into creating truly novel ideas of value.
2. Individuals can give others limited use of their property through contract, including implied contract. This applies to both physical property and IP. A breach of contract is a crime.
3. IP is protected under a contract that the creator of a novel idea will only share the idea with others who enter a contract to only use the idea in a limited way and promise not to share or distribute the idea to others in an unauthorized way. Part of this contract is that the person who receives the idea will only reveal it to a third party in an authorized way after they put the third party under the contract.
4. Someone who knowingly assists in a crime, even if they don’t use force directly, is guilty to that crime. Therefore, if you knowingly assist someone in breaking a contract to only use an idea under limited terms, you are also guilty of a crime.
5. Just as there are benefits to having government issued documents to protect valuable physical property, there are also benefits to having government issued documents, in the form of copyrights and patents, to protect IP.
6. The current US government has some policies in place that help protect IP based on principle. However, there are some areas where they have moved away from principle. For example, currently it is illegal for someone to distribute an idea they have independently created if a similar idea is registered as a patent by someone else. This is wrong because the “second creator” legitimately could distribute the idea without breaking any contract, and therefore force is not used.
7. It is a breach of implied contract, and therefore a crime, to violate a Trademark because you are claiming something which is false.
8. Responses to common arguments against IP (these aren’t essential to his argument, so I’ll skip them for now)
9. Implantation of IP protection: the same principles that are applied to protect physical property should be applied to protection of IP
Unfortunately, I have a problem with this at the very first premise. Defining property as “the fruit of our labors” is not entirely bad, but it comes with a huge exception: children. We can truthfully describe the process of bearing and raising children as “labor”, and children are the “fruit” or their parents’ loins after all, so do parents own their children, as part of their property?
I sincerely hope you answered “No” to that last question.
Anyways, we usually say that people own themselves. You don’t have to buy yourself from your parents, and you don’t have to pay off a lease or get a title to prove self-ownership. You own your own body, and that’s all there is to it. But consider the significance of this: your body could be said to be your most important piece of property (it is a physical object that you possess, after all), yet you didn’t do any labor to get it. So there’s another exception to our definition: except for your body (which you own despite not having labored for it) and your children (whom you labor to produce but do not own, you own the fruits of your labors. That’s not much of a definition anymore, and it seems to me that there’s a more important principle at work here.
Luckily, other people have noticed this, and some of them have some good thoughts on this matter. Stephan Kinsella wrote an article called How We Come to Own Ourselves, in which he explores the issue in depth. Here’s a good excerpt:
If “first use” is not the ultimate test for the “objective link” in the case of body ownership, what is? It is the unique relationship between a person and “his” body — his direct and immediate control over the body, and the fact that, at least in some sense, a body is a given person and vice versa. This is what constitutes the objective link sufficient to give that person better title to his body than any third party claimant, even his parents (an exception would be the victim of a crime committed by the body-owner, who might thereby acquire a “superior” link to or claim on the criminal’s body).
Moreover, any outsider who claims another’s body cannot deny this objective link and its special status, since the outsider also necessarily presupposes this in his own case. This is so because in seeking dominion over the other, in asserting ownership over the other’s body, he has to presuppose his own ownership of his body, which demonstrates he does place a certain significance on this link, at the same time that he disregards the significance of the other’s link to his own body. (Notice that if a victim seeks dominion over the body of his aggressor for purposes of proportional punishment, his claim of ownership over the aggressor’s body is not incompatible with a claim of self-ownership, since the cases are different. It is not inconsistent to claim that the special link between an innocent person and his body gives him the best claim over that body, and to also claim that this no longer holds for an aggressor because he has committed aggression. This distinction is neither arbitary nor particularizable; it is grounded in the nature of things.)
All that being said, this doesn’t have much effect on how we actually treat physical property. We’re still well in the realm of “common sense”: whoever gets to something first gets to keep it, and they can decide to keep or sell it, but someone else can take it if they abandon it, and so on. But then we get to the topic of “intellectual property”, and things aren’t so clear.
An author or inventor can claim a kind of objective link between themselves and a piece of information – they composed that information. For instance, H. Beam Piper is the person who wrote Little Fuzzy, and even though he’s been dead for 50 years, he’s still the one who did it, and no one else can honestly claim authorship over that collection of words. But this kind of link is not the same as the link between a person and their physical property, because this kind of link confers no control at all. I have more control over my socks than an author has over their published manuscripts, despite the fact that I exerted almost no labor at all in acquiring my socks. The objective link of control, which we all have over our own bodies, is nearly impossible to establish over information. How can you “own” what you cannot hold? It’s just no good. Thomas Jefferson had it right in his letter to Isaac McPherson:
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.
Thus, calling information “property” is doomed. But Johnny Hardy’s argument is not yet doomed. He argues that copyright and patent can be treated as contracts, and that infringing upon them is breach of contract.
This theory of IP has an excellent pedigree. Murray Rothbard, elder statesman of anarcho-capitalism, proposed a theory of copyright along these same lines. I quote, at length, from The Ethics of Liberty:
Violation of (common law) copyright is an equivalent violation of contract and theft of property. For suppose that Brown builds a better mousetrap and sells it widely, but stamps each mousetrap “copyright Mr. Brown.” What he is then doing is selling not the entire property right in each mousetrap, but the right to do anything with the mousetrap except to sell it or an identical copy to someone else. The right to sell the Brown mousetrap is retained in perpetuity by Brown. Hence, for a mousetrap buyer, Green, to go ahead and sell identical mousetraps is a violation of his contract and of the property right of Brown, and therefore prosecutable as theft. Hence, our theory of property rights includes the inviolability of contractual copyright.
A common objection runs as follows: all right, it would be criminal for Green to produce and sell the Brown mousetrap; but suppose that someone else, Black, who had not made a contract with Brown, happens to see Green’s mousetrap and then goes ahead and produces and sells the replica? Why should he be prosecuted? The answer is that, as in the case of our critique of negotiable instruments, no one can acquire a greater property title in something than has already been given away or sold. Green did not own the total property right in his mousetrap, in accordance with his contract with Brown—but only all rights except to sell it or a replica. But, therefore Black’s title in the mousetrap, the ownership of the ideas in Black’s head, can be no greater than Green’s, and therefore he too would be a violator of Brown’s property even though he himself had not made the actual contract.
There are more good quotes from Rothbard here on the same subject.
But does this scheme actually work? What are the consequences of agreeing to such a contract?
Hardy makes it clear:
As an example of a copyright, consider a movie. A team labors to create it. They advertise brief parts of it to give you a taste. However, when you go to the movie theater, rent it, or buy it on DVD, you enter a contract with them not to distribute it without authorization. When you go to the theater or rent it, this includes not recording or copying it in any form. When you buy a DVD of it, you can create copies for your own use (such as back-up or to view it on different devices), however you promise not to distribute it to others, or allow them to make copies of it. When you buy it, you are contracting with the creator of the movie to put anyone that you invite to see it under contract not to copy it in any form, and therefore anyone that comes over to see your copy of it is also entering the contract. Of course, anyone can refuse to enter this contract by refusing to see the movie. However, once they go to a movie theater to see it, they have agreed to enter the contract. Once they see the movie by watching someone’s copy, they agree to enter the contract (upon buying the DVD of the movie, the purchaser has contracted to put anyone they share it with under contract).
In other words, the contract obliges you to bind everyone else to the same contract. It spreads from person to person like a virus.
These are weighty terms! One shouldn’t lightly make such a contract. And here is the real problem with the contractual approach: it makes light actions the basis of heavy contracts. Johnny Hardy claims that buying a book is sufficient to bind the buyer to an “implied contract”, but I say that this makes a mockery of the idea of contracts. As an illustration of the terrible absurdity that this approach to contracts can bring, I submit for your consideration, the end-seller license:
This contract applies to any person, company, administration or party who is in any way selling anything to me, buying anything from me, letting anything to me, renting anything from me, making me any offer of sale or purchase or commercial or non-commercial transaction whatsoever, sending me advertisement, accepting me on their commercial premises, communicating with me electronically (including but not limited to sending me email and serving me web pages or reading web pages from me) or engaging in any kind of actual or prospective relation with me. By any such behaviour, said party, therefrom known as “the end-seller” implicitly agrees to be bound by the terms of this contract, therefrom known as “the end-seller license”, “the license”, “the contract”, or “this contract”.
A simple mention of this contract, an ostensible sign of its existence, a flyer that comes with me, or any copy of this contract on any medium whatsoever that I carry or that I would transmit to you, or a prominent or less prominent mention on my web page, or an article in my weblog, are to be considered sufficient warning of the existence of this contract.
After your being properly warned, by proceeding with any real or prospective transaction with me, you agree that you are bound by the terms of this contract. Any continuation to your relationship with me is to be interpreted as your acknowledgement that you are fully aware of the terms of this contract, and as your commitment to be bound by them fully knowing the consequences.
After your being properly warned, your failure to read the entirety of this contract or to understand the full terms of it and their consequences is no valid excuse not to be bound by them. They apply to you whether you want it or not.
This License itself is a copyrighted document released to you under the same license as my article on the Microsoft Monopoly. And of course, by contacting me in any way, or making any use of any information that is my intellectual property, or whatever, you are also subject to the terms of this very same license. It is a reflective license.
Do read the whole thing. It is enlightening, albeit a bit NSFW, especially Article 1c.
Now, do you feel that any of that “license” applies to you? If not, then why is this license different from the license contained in a © symbol? Why does the copyright holder get to unilaterally dictate the terms of the contract and then bind us to them if we so much as read their words?
Wendy McElroy has also noticed the problems in Rothbard’s concept of contractual copyright. In her article, The Last Gasp of Copyright Dies Within Me, she describes the arrangement as “contradictory”:
Chapter 10 of Murray Rothbard’s Man, Economy, & State makes a concerted libertarian defense of copyright by contract. Rothbard argues that a book with the word “copyright” imprinted on its first page constitutes a contract with which a buyer agrees to abide at the point of purchase. He concludes, “any infringement of the contract by him or a subsequent buyer is implicit theft and would be treated accordingly on the free market.” Elsewhere, Rothbard defines “implicit theft” as fraud.
It is a odd argument. If ideas are natural property protected by law, then taking them without consent is explicit theft. If they are property protected only by agreement, then misusing them is a breach of contract for which restitution and damages may be due. But a single word that the buyer may not have seen is far from an enforceable contract. A contract should have written or oral agreement by both parties, and agreement requires a knowledge of the terms which vary from one form of copyright to another. Equally odd is enforcing the ‘contract’ upon a third party who was not involved in the original agreement. What if that person found it abandoned on the ground? To what has he consented?
Perhaps Rothbard assumes that the original buyer has also agreed to terms of sale through which he can transfer ownership of his physical copy. If so, then he is extending copyright protection far beyond that championed by even diehard natural-right advocates of IP who argue that a buyer owns the physical copy of his book but not its content; that is, he can resell the book but not reproduce it. Rothbard seems to be saying that the word “copyright” means that the physical book itself is only conditionally owned with the author or publisher retaining control over the terms of its sale or gifting.
Of course, the same situation could occur with music, patented goods, movies, art… Indeed, why not stamp the bottom of every good produced with the equivalent of the word “copyright” and then assume a legally enforceable contract exists against the chair being replicated or sold on the ‘wrong’ terms?
Rothbard is stretching the concept of copyright and contract beyond recognition. But he does so because it is the only way to preserve a theory copyright by contract.
A contract is only as good as the understanding of it; the strength in a contract comes from the “meeting of the minds” of 2 or more people. Someone buying a book from a bookstore never actually has that meeting of minds with the author. The only “implied contract” they make is their implied promise to not steal any physical merchandise from the store. Stretching that promise into a commitment to never copy a book just doesn’t make sense, and stretching that commitment into a lifelong binding contract makes it even worse.
The “piracy” problem currently happening is the result of a lack of mutual understanding between customers and artists. The artists and their publishers think that the customers have bound themselves to strict contracts that forbid copying. The customers think that they haven’t made any such contract, so they remain free to copy and share. I side with the customers; no one asked them to sign a contract, so no one can hold them to a contract.
Wendy McElroy also argues that a contractual copyright system would be “politically disastrous and incompatible with a libertarian legal system“. The disastrous part comes from the policing measures we’d need to enforce the system. Consider these recent articles from TechDirt:
EU Publishers Present Their ‘Vision’ For Copyright: A Permission-Based Internet Where Licensing Is Required For Everything
SoundCloud Has Given Universal Music Group The Ability To Directly Remove Content
Publishing groups have been granted immense power to surveil and censor communication, and they’re asking for more. This is what it takes to force compliance. Is this liberty? I think it’s the opposite.
And then there’s the final matter. Wendy fears that copyright enforcement would lead to an unjust legal system. It has. Andrew P. Bridges observes in this article that the fines and punishments associated with copyright infringement are obscenely large:
How do the civil damages or penalties for the different types of such “theft” compare? Failure to pay expected money under a contract doesn’t trigger a penalty: contract law usually says that a party can recover the money she expected but not punitive damages or attorneys fees (unless parties have specifically bargained to pay attorneys fees for a breach). Failure to pay rent usually requires payment of rent to cure the default. Failure to put money in the parking meter prompts a ticket for $60. In New York City, failure to pay the $2.50 subway fare results in a maximum fine of $100.
Copyright “theft” is a very different story. Copyright infringement statutory damages in civil litigation can be as high as $150,000 for infringement of a single work. Yes, a single work such as a single song with an iTunes download value of $1. A copyright holder can claim such statutory damages without needing to prove a single penny of damage or loss. Think such sky-high damages aren’t realistic? Think again. In the RIAA’s case against single mother Jammie Thomas, a jury awarded $1,500,000 for the download of 24 songs, with no proof that she had transmitted songs to others. The federal judge thought that was ridiculous and reduced the total award to $54,000 – and the RIAA and MPAA are now arguing strenuously on appeal that the jury verdict should return to the original figure, $62,500 per downloaded song.
If we take copyright law’s maximum-penalty-to-price ratio as applied to an illegal download, and apply that same penalty-to-price ratio to the New York subway, the maximum penalty for jumping that turnstile and avoiding the $2.50 fare would be $375,000 instead of $100. Copyright industries are on to a really good thing under current law. One could say it’s a steal.
Behold the result of copyright enforcement. Is this justice? Is this liberty? I don’t think so.
But there’s another perspective to this situation, one that I’ve been neglecting: the Christian perspective. I am a Christian, specifically a Latter-Day Saint, and so I ought to ask, not merely whether IP is legal or ethical or liberating, but whether it is right. In other words, What Would Jesus Do? I know the question is cliché, but as a follower of Christ, I want to know the answer. I turn to the New Testament for a guide, and there, in Matthew 10:8, I find these words: “Freely have ye received, freely give.”
And that settles it for me. Just as God has freely given me good things, so should I freely give good things to others. And when it comes to information, there’s no limit to how much I can give. I can copy information as easily as Christ can copy loaves and fishes. And so can everyone who receives information from me. I just have to let them do what they already have the power to do, and my gifts will practically share themselves.
Now, this doesn’t mean that we should never obey IP law, because it is often wise to obey even unjust laws. But this does mean that we should never, ever use IP law to lock up our own works. Instead, we should set people free to use them and share them as much as they like. It’s simple, it’s easy, and it’s the right thing to do. What are you waiting for?
P.S. Copyright law came close to censoring the Doctrine and Covenants. Back in 1845, in England, you didn’t have to be the author of a book to get a copyright on it; you just had to be the first to print it (this was pretty typical compared to other countries at the time). Well, an enemy of the LDS Church decided to copyright the Doctrine and Covenants, so that he’d have the legal right to prevent the Church from printing the D&C in England. Thankfully, someone warned Wilford Woodruff, who then secured the copyright in his own name, saving the D&C from censorship. A happy ending… but it never would have been an issue at all if not for copyright law.