Comments Elsewhere

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.)