As far as “the existence of ‘substantial and often gruesome atrocities’ in postwar Cambodia” goes, I think Orwell said it best:

“In our time, political speech and writing are largely the defense of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. Defenseless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them. Consider for instance some comfortable English professor defending Russian totalitarianism. He cannot say outright, ‘I believe in killing off your opponents when you can get good results by doing so.’ Probably, therefore, he will say something like this:

“‘While freely conceding that the Soviet regime exhibits certain features which the humanitarian may be inclined to deplore, we must, I think, agree that a certain curtailment of the right to political opposition is an unavoidable concomitant of transitional periods, and that the rigors which the Russian people have been called upon to undergo have been amply justified in the sphere of concrete achievement.’

“The inflated style itself is a kind of euphemism. A mass of Latin words falls upon the facts like soft snow, blurring the outline and covering up all the details. The great enemy of clear language is insincerity. When there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink. In our age there is no such thing as “keeping out of politics.” All issues are political issues, and politics itself is a mass of lies, evasions, folly, hatred, and schizophrenia. When the general atmosphere is bad, language must suffer. I should expect to find — this is a guess which I have not sufficient knowledge to verify — that the German, Russian and Italian languages have all deteriorated in the last ten or fifteen years, as a result of dictatorship.”

—“Politics and the English Language” (1946)

For what it’s worth, I don’t think breaking backward compatibility with the Atom link munging is a great idea. Two basic reasons:

1. preserving the convention that $item[‘link’] means the rel=”alternate” link, and thus the same thing that $item[‘link’] means in RSS feeds, would impose the need for some kind of sorting logic to guarantee that the first link element in the array is always the rel=”alternate” link. Breaking the convention would break virtually all Magpie software everywhere, and make normalizing with RSS a horrendous pain in the ass.

2. in practice, anyway, a generic Atom link element means absolutely nothing to a program consuming the feed; it is only in the context of being a link rel="alternate" or link rel="self" or link rel="enclosure" or whatever that it actually means anything that a feed consumer would be interested in understanding. I can’t think of any reason that I’d want to be able to search through a straight list of all the link elements without regard to their “rel” value; and if there is some reason that you’d want to, you can always store some special kludge element somewhere that will keep track of all the link rel values that are used in a particular item.

wade:

I don’t think the free market would have waged a better war against the germans than nation states managed in 1939 – 45.

What do you mean by “a better war against the Germans”? What do you think makes a war effort better, as opposed to worse? And why do you think the war that Stalin’s USSR, the UK, the US, and France fought against Hitler’s Germany, counts as a better war than could have been fought without the involvement of the Allied nation-states?

Castillon: The solution for patents is trade secrets, which do deal heavily in contracts and are relatively successful.

Well, maybe it is and maybe it isn’t. If “trade secrets” are binding on third parties who have made no agreement to respect or conceal them, then they are just as objectionable on free market grounds as patents or copyrights. If they are not, then it’s pretty likely that at least some products will be easily reverse engineered by people not bound by trade secrets. (This is at least the case with products that can be reverse-engineered using chemical analysis, most software, etc.) Of course, without the bludgeon of patent law and copyright law to bully people with, firms might try demanding that their customers sign on to trade secret agreements as a condition of sale. But that’s a fairly novel approach for most of the products concerned and it’s unclear whether, given the choice, customers would take it. It’s also unclear how successful it would be given that it has no binding force over third parties who innocently come into possession of the product without having signed the agreement.)

It may very well be true that the end of patents will make capital- and labor-intensive research unprofitable for many fields in which it is profitable today. Maybe there is some way of patching that up, but I don’t think that it would be any argument for intellectual protectionism if it couldn’t be patched up. There are reasons for doing research other than making an immediate profit through monopoly control over the engineering results of the research; and there is no good way of centrally planning the best modes of research to allocate money to. The best thing to do is to leave it open to market competition and see what falls out of researchers’, sponsors’, and consumer’s economizing decisions.

Castillon: As to copyrights, the original inspiration for them in Anglo-American law had nothing to do with contract law, property rights, or anything else like that. They were a utilitarian means to encourage production of some very limited varities of largely artistic endeavours.

Well, that depends on the date you are attributing to the origin of copyright law. If you’re dating them from the Statute of Anne then you’re right to say that they had this explicitly protectionist purpose. If you’re dating them to the extension of letters patent to the use of the printing press with regard to particular works (which were sometimes granted to particular printers and sometimes to particular authors), or the Licensing Act of 1662, then the purpose wasn’t even connected to the promotion of “useful books” at all; it was simply a brute grant of privilege from the Crown, combined with the desire to control printing for purposes of censorship, suppression of heresy, etc. In any case, the discussion above was not directed to the purposes originally cited for copyright law, but rather to the kinds of stories that pro-copyright libertarians try to tell themselves to justfy the claim that copyright is compatible with a free market. (Randians favor the claim that it is a form of private property; Rothbard argued that it is a form of contractual agreement; Matt seems to be vacillating between the two different accounts; and I argue that neither is right or even particularly plausible.)

Don Lloyd: Your description is mis-applied. It’s not my use of the file that is threatened, but rather its exchange value to me if I want to sell it to others for their own use value of a copy.

Where in the hell did you get a legitimate proprietary interest in the “exchange value to you” of any good or service, let alone a computer file? Exchange values are not the property of the seller; they are made by two or more people acting on subjective values in the context of a market. (N.B.: the theory that you own the exchange value of a good or service would justify any and every form of protectionism, not just intellectual protectionism.)

Matt McIntosh: Below a certain congestion level, roads and highways are nonrivalrous, but I doubt you would argue that this means nobody should be allowed to exclude others from using their private roads.

This is a crude and obvious category error. Roads and highways, even when not congested enough that the use by one vehicle excludes the use by another, are still such that an additional vehicle on the road will bring the road closer to the condition in which use by one vehicle excludes use by another. I don’t care whether you call this condition “being rivalrous” or “being potentially rivalrous”; in either case it is different in kind from the condition of ideas, which come no closer to being exhausted no matter how many people partake of them, and in either case, this is the difference that libertarians against IP are interested in, not the contingent question of whether in fact right now my use of a particular resource on the margin would exclude someone else from using it on the margin.

Matt McIntosh: Likewise, my genetic code is nonrivalrous, but would you argue that anyone should be able to take it and clone me without my consent?

Of course I would. Jesus. Provided that they have some way of accessing the pattern of your genetic code without violating your rights of self-ownership. If I jab you with a needle against your will in order to get a DNA sample, of course that is assault, but that has nothing in particular to do with “intellectual property.” If you sell a vial of your blood no-strings-attached and then I decide to use the genetic information contained therein to produce a clone, what gives you any rights of exclusion at all over the clone that I intend to make?

Matt: In any case, you’re gliding rather blatantly over this little thing called copyright, which rests on an implicit contract between the producer and the purchaser that the purchaser shall refrain from doing certain things with the product they’ve been sold. We can have reasonable disagreements over how these implicit contracts are defined and what their content should be (I myself favour fairly broad scope for fair use, and I think Creative Commons is a fantastic idea), but to pretend they don’t exist is not a tenable position.

Of course it’s a tenable position. First, because copyright restrictions are enforced on people who cannot plausibly be claimed to be bound by any contract with the copyright holder. (For example, say you buy a copy of my book, and rip out the copyright page and white out my name. You then sell it to Micah — who has no reasonable way of knowing that I wrote it and claimed copyright on it — and pass it off as an anonymous tract released into the public domain. Micah then prints up a thousand copies and sells them over the Internet. Do I have the right to force Micah not to print them? Copyright law says yes; a strictly contractual theory would have to say no. Whether or not you are liable to me for breach of some contract, and whether or not you are liable to Micah for fraud, there is no plausible case at all for suggesting that Micah entered into any contract with me, implicit or otherwise. Ergo copyright restrictions are not contractual agreements. If you want to make up some social practice that sort of resembles copyright but stays within purely contractual limits, you’re free to do so, but if you want to defend the use of copyright restrictions against innocent third parties the contractual argument won’t do it. (A notion of property in ideas will, of course, but that is precisely what is being contested.)

Secondly, if you seriously intend to read the symbol “(c)” as an extensive and binding contract you have a hell of a lot of explaining to do. For example, just what are the terms of the contract? Without a concrete answer to this the claim that “(c)” is actually code for a huge implicit contract is nothing more than empty hand-waving. But can these terms be spelled out in any detailed way? Can they change over time according to Congressional fiat? Did I, buying the book, agree to accept whatever changes Congress and the courts may impose over time? Or did I only agree to accept whatever terms Congress and the courts imposed at the time that I bought the book? Or did I not understand that I was agreeing to any terms at all? How do you know? How does the copyright holder know? Did the copyright holder make the book available under the terms set by Congress at the time, or under whatever terms Congress happens to set at any time at all? How do you know? How do I know? What evidence of any kind do you have for any mutually understood and agreed-upon terms at all? I submit that there isn’t any conventional set of terms because copyright was never a matter of conventional law in the first place; it was made up relatively recently and is governed entirely by statute, not by convention. The statutes all operate on the presumption that they are giving a limited grant of property rights in ideas, not on the presumption that they are formalizing a kind of contract. You could make up some kind of conventional social practice in which people did understand “(c)” to be code for some specific and widely-understood set of terms (science fiction is a diverting enough passtime), but pretending that it has anything at all to do with copyright law as it currently stands is really a bit much.

And, of course, as has been widely recognized even by those (e.g. Rothbard) who swallow the copyright-as-contract theory, none of this can give any excuse at all for patents.

Matt: For example, it takes enormous sunk costs to develop a new drug, so if someone else can reverse-engineer it relatively cheaply and take away all your profits, then drugs will no longer be profitable and hence undersupplied.

If drug research is not profitable, then only not-for-profits will do drug research.

I’m waiting for the argument that this will cause a problem that could be described as “drugs being undersupplied.” (Undersupplied compared to what?)

(Incidentally, your argument here is not at all different in form from any other protectionist argument—some resource, judged to be critical, will be undersupplied if exposed to market competition, and therefore somebody or another is justified in forcibly excluding would-be competitors from the market. Of course, being “protectionist” is not logically equivalent to being “uncogent,” but it is further evidence for the claim that “intellectual protectionism” is an apt choice of words.)

Here’s a recent test case on which the Supreme Court decided in favor of a broad, rather than a narrow, reading of Commerce Clause powers: Raich v. Gonzales, in which the Supreme Court ruled (6-3) that the Commerce Clause authorized Congress to regulate the production, distribution, and use of marijuana — even when the marijuana was produced, distributed, and used entirely within the state of California and entirely for non-commercial purposes.

Setting aside the question of what legal or political outcomes you consider to be most desirable, is there any plausible reading of “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”, which grants Congress the power to regulate non-commercial transactions for marijuana, carried out between people who live in the same state (and are not members of Indian tribes)? If so, what is that reading and how is it justified?

“My questions: Is there anyone who’s neither a neocon or a liberal hawk who can take on McCain in 2008?”

Howard Dean?

I have my problems with him, but I’m not holding my breath for someone better out of the Democratic Party as presently constituted. He’d also ensure that McCain wouldn’t have the “straight talkin’” market cornered in the general election.

Well, depending on context, it may be best just to say “copyright restrictions” or “patent restrictions.”

If you need to tag the phenomenon as a whole, though, I’m keen on “intellectual monopoly,” or “intellectual protectionism”. If I’m describing the monopolists themselves or the monopoly-pushers, I am especially fond of the phrase “intellectual enclosure movement.”

I demand $50 in royalties for every time you use any of these phrases!

Oscar,

I’m not sure I quite understand your example. Is the government in question selling sidewalks to a single bidder? Are they requiring bidders to pledge to enact the invasive “security” measures in order for them to bid? Are they requiring bidders to keep the sidewalk property that they buy, or can thos bidders transfer ownership to other people under different terms?

I ask, because depending on your answers to these questions I might find the government’s actions objectionable or unobjectionable; but in the cases where it would be objectionable, the reasons for the objections would have nothing essentially to do with limitations on private owners of any resource that could be said to serve a “public function”. They would, rather, have to do with the government’s decision to “privatize” resources in a way which was (1) unfair, and possibly (2) not effectively privatization at all, but rather franchsing out management of resources that the government retains effective control over.

In either case the issue would be an illegitimate transfer of property, not the obligations that legitimate private property owners do or do not have.

(To illustrate: imagine a case in which the goverment privatizes all the sidewalks in Manhattan by transferring them to associations of all the people who live or own a business on a particular block, with no strings attached other than the requirement that each person in the association get a number of transferrable shares of ownership. Suppose also that for some reason the association on a particular block of 112th street decides to impose the kind of onerous procedures you imagine. What are people going to do? Well, they’re going to walk a block around to 113th street or 111th street. That sucks, but it’s hardly a catastrophe and hardly seems any reason for the justice system to intervene. Now suppose that NYC sells all the sidewalks to a single bidder, ScumCo, based out of Hoboken, and only on the condition that ScumCo institute those kind of procedures, institute them everywhere, and not sell to anyone who won’t institute them. The latter case certainly does seem objectionable, but I think the reason that it does seem objectionable has much more to do with the kind of restrictions that the city government placed on who can own the sidewalks after privatization than it does with the prerogatives of private owners themselves.)

Berg: “James Madison, in Federalist 41, responded to the idea that anyone might interpret it in such a way with outright ridicule and a lecture on grammar . . .”

So antifederalists feared that the General Welfare clause would provide a fig leaf for the endless expansion of government power, and Madison ridiculed the notion.

Thank God J.M. put a stop to all that with a grammar lesson. How’s that been working out for him lately, anyhow?