There are some libertarians who think that some sort of “intellectual property” is possible; they argue that the practice of privatizing information could survive the free market. Murray Rothbard, may he rest in peace, was one of those libertarians, and he makes an argument for a kind of copyright via contract in chapter 10.7 of Man, Economy, and State:
It is true that a patent and a copyright are both exclusive property rights and it is also true that they are both property rights in innovations. But there is a crucial difference in their legal enforcement. If an author or a composer believes his copyright is being infringed, and he takes legal action, he must “prove that the defendant had ‘access’ to the work allegedly infringed. If the defendant produces something identical with the plaintiff’s work by mere chance, there is no infringement.” Copyrights, in other words, have their basis in prosecution of implicit theft. The plaintiff must prove that the defendant stole the former’s creation by reproducing it and selling it himself in violation of his or someone else’s contract with the original seller. But if the defendant independently arrives at the same creation, the plaintiff has no copyright privilege that could prevent the defendant from using and selling his product.
We have seen in chapter 2 that the acid test by which we judge whether or not a certain practice or law is or is not consonant with the free market is this: Is the outlawed practice implicit or explicit theft? If it is, then the free market would outlaw it; if not, then its outlawry is itself government interference in the free market. Let us consider copyright. A man writes a book or composes music. When he publishes the book or sheet of music, he imprints on the first page the word “copyright.” This indicates that any man who agrees to purchase this product also agrees as part of the exchange not to recopy or reproduce this work for sale. In other words, the author does not sell his property outright to the buyer; he sells it on condition that the buyer not reproduce it for sale. Since the buyer does not buy the property outright, but only on this condition, any infringement of the contract by him or a subsequent buyer is implicit theft and would be treated accordingly on the free market. The copyright is therefore a logical device of property right on the free market.
He elaborates on this theory in The Ethics of Liberty:
There is, however, an exception to the right to use and disseminate the knowledge within one’s head: namely, if it was procured from someone else as a conditional rather than absolute ownership. Thus, suppose that Brown allows Green into his home and shows him an invention of Brown’s hitherto kept secret, but only on the condition that Green keeps this information private. In that case, Brown has granted to Green not absolute ownership of the knowledge of his invention, but conditional ownership, with Brown retaining the ownership power to disseminate the knowledge of the invention. If Green discloses the invention anyway, he is violating the residual property right of Brown to disseminate knowledge of the invention, and is therefore to that extent a thief.
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.
Alright, did you follow with that? Because I’m actually having trouble with it.
Rothbard’s hypothetical “copyright” is actually a pretty good description of trade secret and non-disclosure agreements. But modeling such contracts as exchanges of property doesn’t make sense to me. I think it’s more natural to think of them as exchanges of services. An exchange of services can be as simple as “you scratch my back, I scratch yours”. In the case of an NDA, the exchange is: “I tell you this information, you don’t tell anyone else this information”. This is all well and good, but it has some complications. For instance, how long must the receiver keep the information secret? In the case of the backscratchers, there’s very little need to discuss long-term obligations, because you both get your backs scratched right then and there, but when you agree to not do something, how long do you have to not do it?
Rothbard assumes that this sort of contract will be binding “in perpetuity”, but that’s not a safe assumption! Why would a free market decide that you can be bound to eternal silence in exchange for receiving a particular piece of information? I can see why people would want to enforce this contract on others, but I can also see that people wouldn’t want themselves to be bound by such contracts. I think that a true free market would at least try to find a compromise between these extremes. I also think that a true free market wouldn’t automatically assume the inviolability of any contract, let alone contractual copyright. For a good explanation why, I recommend reading The Myth of the Rule of Law by John Hasnas. In that essay, Hasnas explains why there should be a free market in the law itself, and showing that a “one-size-fits-all” approach like we have now is the last thing that a free market in law would produce. As for what a market in law would produce, here’s an excerpt:
Although I have no crystal ball, I suspect that a free market in law would resemble the ancient system a great deal more than the modern one. Recent experiments with negotiated dispute-settlement have demonstrated that mediation 1) produces a higher level of participant satisfaction with regard to both process and result, 2) resolves cases more quickly and at significantly lower cost, and 3) results in a higher rate of voluntary compliance with the final decree than was the case with traditional litigation. This is perhaps unsurprising, given that mediation’s lack of a winner-take-all format encourages the parties to seek common ground rather than attempt to vanquish the opponent and that, since both parties must agree to any solution, there is a reduced likelihood that either will wish to reopen the dispute. Given human beings’ manifest desire to retain control over their lives, I suspect that, if given a choice, few would willingly place their fate in the hands of third-party decisionmakers. Thus, I believe that a free market in law would produce a system that is essentially compositional in nature.
In other words, any contract between seller and buyer would be subject to negotiation and mediation. I doubt that a contract of perpetual silence would survive under such circumstances. (Also, I must point out that Rothbard argued that blackmail should be legal. If that’s the case, then when you tell someone a secret but insist that they can’t share it, don’t they have a right to “blackmail” you into compensating them for keeping the secret? But I digress)
Perhaps Rothbard sensed this problem with contractual copyright, because he tries to explain that what’s really at stake are property rights, not just contractual obligations. He insists that you can sell something in part, as in the example with Brown’s mousetrap. Brown sold Green the right to use the mousetrap, but not the right to copy it (and certainly not the right to sell copies!). J. Neil Schulman elaborates on this in his Logorights essay, saying that rights come in “bundles”, and that you can separate and sell them.
Well, I don’t agree with Schulman, and I don’t agree with Rothbard, either. The fact of the matter is that “rights” are not individual things that can be separated from each other. In fact, rights are kind of nebulous, but if we’re going to understand them and implement them, we have to understand that they are rooted in possession. Rothbard and Schulman both acknowledge this, yet they both still think that rights can be split up, even when possession is not split. This just doesn’t work. For a good explanation why, let me quote from Anthony de Jasay’s piece, Your Dog Owns Your House:
In the broad scheme of things, all this is part of the universal system of exchanges. Some of these exchanges may be involuntary. Such is the case where redistribution, a coercive act, is taking place. We then lose the trace, the precise measure and the assured reciprocity of contributions to wealth and income, but this circumstance can hardly serve to justify the very redistribution that has caused it. However, where exchanges are voluntary, tracing and measuring become, in a strong sense, otiose and irrelevant. For in a voluntary exchange, once each side has delivered and received the agreed contribution, the parties are quits. Seeking to credit and debit them for putative outstanding claims is double counting.
Most modern theories of how society ought to work rest on some idea of agreement. Almost invariably, however, the agreement is fictitious, hypothetical, one that would be concluded if all men had equal “bargaining power,” or saw things through the same “veil” of ignorance or uncertainty about their future. Or felt the same need for a central authority. The social contract, in its many versions, is perhaps the best known of these alleged agreements. All are designed to suit the normative views of their inventors and to justify the kind of social arrangements they should like to see adopted. Yet the only agreement that is not hypothetical, alleged, invented is the system of voluntary exchanges where all parties give visible, objective proof by their actions that they have found the unique common ground that everybody accepts, albeit grumblingly, but without anyone being forced to give up something he had within his reach and would have preferred. The set of voluntary exchanges, in one word, is the only one that does not impose an immorality in pursuit of a moral objective.
de Jasay is arguing against redistribution, showing how a logical application of it leads to Fido having a property right on your territory, but the same argument works just as well against Rothbard’s proposal of divided ownership. Voluntary exchanges should be brief and well-defined, and property should remain in the control of whoever actually possesses it.
This is the kind of property rights that make sense to us as humans, and the kind of rights that are possible to enforce while still preserving liberty. If I may quote from Neil Gaiman’s argument with his agent:
Her point of view: The Kindle reading you the book-you-just-bought infringes the copyright (or at least, the rights) to the audiobook. We’ve sold audiobook rights and print book rights as separate things. We must stop this.
My point of view: When you buy a book, you’re also buying the right to read it aloud, have it read to you by anyone, read it to your children on long car trips, record yourself reading it and send that to your girlfriend etc. This is the same kind of thing, only without the ability to do the voices properly, and no-one’s going to confuse it with an audiobook. And that any authors’ societies or publishers who are thinking of spending money on fighting a fundamentally pointless legal case would be much better off taking that money and advertising and promoting what audio books are and what’s good about them with it.
In other words, when you own something, you get to own it. You control all of it. If somebody wants to sell me a book but not let me copy it, they can negotiate a mutually advantageous contract with me. If they don’t feel like doing that, then they can either sell me the book outright or just forget about the sale.
We’ve wandered far from this principle, to the point that media companies routinely treat their own customers as enemies. This is inexcusable, especially to libertarians like me. It’s time to drop this nonsense, and stop pretending that we can divide up ownership.