Over on Cato Unbound, for a discussion of copyright reform, Mark Schultz contributed a response essay: Copyright Reform through Private Ordering. Please read it, because it is the topic of my essay today.
Mark Schultz, like myself, believes in the power and usefulness of “private ordering”, meaning the systems that individuals build for themselves by working together, without any central planning or management. I feel that Pierre-Joseph Proudhon put it best when he said: “Liberty is the mother, not the daughter, of order.” Of course, it is possible to have order without liberty, but if you would have both, then you’d better start with liberty. There are many reasons for this, but I think that the best reasons are the knowledge problem (the central planner cannot possibly know everything they need to know) and the fact that power corrupts (any central authority strong enough to unilaterally establish order will be tempted to establish an order that benefits the authority at the expense of the subjects). For these reasons and more, private ordering beats central planning.
But for private ordering to work, power must be in the hands of the individual actors. No one’s going to bother establishing an order if they know that a central planner can overrule them at any time. The people need to have the power to assert their independence and to negotiate terms with each other. This is where “private property” comes in. If you have a space to call your own, you can make it on your own. Mark Schultz and I are still in agreement here. The example he cites – Susette Kelo defending her home against the city of New London – is very appropriate. Birds have nests, foxes have holes, and humans have private property, and we fight to defend it.
Now how well does this match up with copyright and other forms of IP? Mark Schultz thinks this still applies very well. Here, I disagree. I quote, at length, from Roderick Long:
But ethically, property rights of any kind have to be justified as extensions of the right of individuals to control their own lives. Thus any alleged property rights that conflict with this moral basis – like the “right” to own slaves – are invalidated. Intellectual property rights also fail to pass this test. To enforce copyright laws and the like is to prevent people from making peaceful use of the information they possess. If you have acquired the information legitimately (say, by buying a book), the on what grounds can you be prevented from using it reproducing it, trading it? Is this not a violation of the freedom of speech and press?
It may be objected that the person who originated the information deserves ownership rights over it. But information is not a concrete thing an individual can control; it is a universal, existing in other people’s minds and other people’s property, and over those the originator has no legitimate sovereignty. You cannot own information without owning other people.
Susette Kelo could have defended her own property personally, perhaps with a fence and a shotgun. But there’s no way to do the same thing with information. As I said about J. Neil Schulman’s claims: you’d have to fence off other people’s property to defend your IP.
Now, if private ordering were a reality, IP would already be dead. But central planning is a thing, and the elites have kept IP alive. But since they couldn’t keep it as a form of simple property, they transformed it into a kind of regulation. Cory Doctorow describes the process here:
There is an ancient copyright agreement that Victor Hugo came up with called the Berne Convention that most western nations are parties to. If you read the agreement closely, it seems to make this whole business of blanket licensing illegal. When I’ve asked international copyright specialists how all these Berne nations can have radio stations and karaoke bars and hairdressers and such playing music without negotiating all their playlists one at a time, the usual answer is: “Well, technically, I suppose, they shouldn’t. But there’s an awful lot of money changing hands, mostly in the direction of labels and artists, so who’s going to complain, really?”
Which is by way of affirming that grand old Americanism: money talks and bullshit walks. Where the stiff-necked moral right of a copyright holder to control usage rubs up against the practicalities of allowing an entire industry’s capacity for cultural exchange and use, the law usually responds by converting the moral right to an economic right.
Rather than having the right to specify who may use your works, you merely get the right to get paid when the use takes place.
From property right to collective taxation, so goes IP.
Now Mark Schultz hates regulation, and I can’t say I like it very much, either. He probably hates taxation, too. So it’s no surprise that he doesn’t like blanket licensing:
One potential problem with a copyright reform that views copyright owners as “regulators” is that it may insert government regulators (further) into the copyright industries to ensure that a proper balance is achieved. One problem with this result is regulatory complexity—complexity of the sort that smothers entrepreneurship. The Copyright Act already contains such provisions. For example, Section 111 contains a lengthy and complex compulsory licensing regime for collecting and divvying up royalties from cable television providers administered by the Copyright Office and the Copyright Royalty Board. A resource for documentary filmmakers referred to these “retransmission” royalties as television’s “multi-million dollar secret”, because of the complexity and expense of the process tends to leave out those with fewer resources.
But without those regulations, copyright becomes impossible. If we removed those regulations, then copyright and personal liberty would come into open conflict, and without elite intervention, copyright would lose. To save copyright, we’d have to destroy it…
Mark Schultz tries to strengthen his case by citing the success of Creative Commons and Open Source, but these don’t help his case at all. Creative Commons, as an organization, explicitly sees copyright as regulation, and their aim is to improve it. Schultz mocks the idea of “reform that promotes an abstract and unattainable balance between individual and collective interests”, but that’s exactly what Creative Commons wants. And Open Source? Open Source is anti-copyright. To qualify as open, you have to be really, really liberal about what you let people do with your code. Schultz praises the open source movement for “address[ing] shortcomings in the copyright system through private action”, but when the private action consists of either abandoning copyright or actively subverting it, I have to wonder how big those shortcomings are.
In summary, I agree with Mark Schultz: private ordering can and does fix the problems with copyright. But I disagree with Mark about what the fix would look like, and I think that Mark Schultz is a silly man for not realizing that copyright has always been regulation.