I am not sure that there’s any libertarian principle that objects to planned failure in DVDs, or that there’s any logical distinction in the comparative consumer rights between DVD rental and DVD self-destruction. For that matter I’m not sure that there’s a logical distinction between (the much maligned) software rental contracts and leasehold on real estate, not while there is Copyright protection, anyway.
I am sure, however, that a great many people of all stripes, including the most avowedly propertarian libertarians, hate the tendency in the entertainment and consumer software industries to enforce their intellectual property rights and create new, lesser rights in their products in which to sell licenses. I am also sure that Copyright is simply losing the minimal respect that is required for a law to be effective. That libertarians should be part of this too should tell us something. After all, we seem quite happy to take un-PC views on the side of big-oil, big-pharmacy, big-tobacco, big-corportate-bogeyman-of-the-week – and revel in how contrarian we seem, how opposed to the “idiotarian” received wisdom. Why not do we not support big-Hollywood too? Libertarians are generally a pretty law-abiding bunch and, to the extent that they are not, certainly don’t boast or casually recount their crimes against property in fora such as Samizdata. But admission of “intellectual property theft” somehow has no stigma. No doubt I will be answered by a clamour of Samizdatistas saying that they disapprove, but I know that many openly engage in filesharing. I am also firmly convinced that much of the support for Napster Inc. and their ilk (the “potential legal uses” defense) is in large part a rationalisation – believed to be true, insofar as it goes, but far from the main motivation for such voluble outrage in their defense.
So what does libertarian antipathy to these developments, and support for filesharing, tell us? I’ve been meaning to write about this for some time, so let’s test a few hypotheses.
- That when it touches their lives directly, Libertarian principles go out the window and short-term self-interest reigns.
Not likely. DVDs, Napster/Kazaa/Gnutella and Microsoft Passport may affect libertarians directly. But so do schools, NHS services, and the London underground, as well as passive smoking, GM foods, and the family of asylum seekers moving into the B&B next door. This hypothesis doesn’t give a convincing explanation of why libertarians side with the “standardised concerned citizen” on intellectual property, while opposing the stereotype on so many other issues of equal personal relevence.
- Libertarians are luddites. Any change is seen as threatening.
This hypothesis is laughable on the face of it. Most libertarians aren’t Extropians, but most do have broad sympathy with a watered-down version of that philosophy, while smiling benignly on its kookier limits. If a news story says that scientists have grown a replacement human arm in a jar, a potato that cures hemorrhoids, or built a car that drives itself, you can expect Samizdata to be full of rejoicing, not laden with predictions of woe.
It is true that libertarians really do believe that government only ever makes things worse, and this is reflected in their instinctive reaction to just about any government initiative: any new policy is greeted with deep scepticism at best, even when it seems obvious to a neutral observer that had incumbent policy been the new one, and the change been in the other direction, libertarians would be roundly decrying the destruction of freedom and western civilisation.
But the entertainment and software industries are not government bodies, they’re the “big business” libertarians usually revel in defending. Out goes all pretense that libertarians are just indulging their knee-jerk anti-government emotions. Something else is going on.
- Libertarians don’t like “rental” licenses, only full ownership. A variant on (2) above, but applied to specifically to business model instead of product.
This hypothesis doesn’t explain why so many support or excuse Napster/Kazaa/Gnutella, which undermine sales of “proper” DVDs and software programs and are a major impetus behind short-life business models such as “pay-per-view” and software rental (OK, the rental payments don’t address filesharing specifically, but the new business model is designed to support constant updates and required real-time online access to the vendor’s infrastructure, which is a response to filesharing. Trust me on this).
Anyway, if libertarians are happy to rent their homes, their cars and their space in the traffic jam, why would they object to paying each time they want to see “Sigorney Weaver kills yet more Aliens” or play Doom XXVII?
Something else is going on.
- Libertarians want something for nothing.
This hypothesis alleges that libertarians expect some other agency (the industry, government etc) to continue to provide entertainment goods without charge to the consumer. For the response read Chapter 1 in The Standard Manual of Libertarian Dogma, or check the index under TANSTAAFL.
So if none of the obvious hypotheses are convincing, perhaps there really is something different about what is happening in the entertainment and software industries that libertarians have intuited, but not yet fully described.
My theory is this:
Libertarians, in common with most other ordinary people, have finally decided that they don’t believe in Intellectual Property Rights.
There’s been an ongoing discussion about this in the more theoretical reaches of the libertarian world for many years now, and there have been adherents to both camps. But I’m not really talking about a reasoned defence: I’m talking about an emotional commitment.
Libertarians have an emotional commitment to property rights. They don’t just believe in them as a reasoned, pragmatic response to certain identified problems, they – WE – feel in our gut that property is good. It is morally right that you should own stuff, and that when you own it you should be be able to do with it as you choose. If someone tries to interfere with your stuff or take it for themselves then it is not just morally justified for you to defend it, but we’ll all have a sneaking admiration for you if you take the opportunity to convince the malefactor of the error of his ways while you’re about it.
All the rest – the empirical knowledge of the chaos of collectivism and the horrors of big-C Communism, the deep economic analysis of the price mechanism and the profit motive, the easily digestible stories of the “invisible hand” and the division of labour, and the highly indigestible praxeology of the Austrians and the intellectually respectable homegrown IEA — all of that, it just goes to support and reinforce and justify an emotional commitment to the concept pf Property, which we know, in our gut, to be right anyway.
Intellectual Property is qualitatively different to physical property (either land or chattels). If I take of your land or chattels then, to the extent that I have more, you have less.
True property is a zero-sum game – not in value terms (when I have 2 cabbages, I have one more than I will eat before it goes mouldy, and exchanging my second cabbage for your second chicken probably creates new value), but certainly so in terms of my possessions: if you take my second cabbage, I cannot give it to my neighbour for his dinner. Free exchange adds to the sum of human happiness, but it doesn’t break the Law of the Conservation of Energy. Misunderstanding what is and what is not a zero-sum gain when dealing in property (getting it precisely the wrong way around) is at the root of many failings of socialist economics.
Intellectual Property works the other way around. If I upload my copy of The Matrix to you, it doesn’t stop me then giving it to my neighbour, and his neighbour, and his neighbour, ad infinitum. Warner Bros doesn’t lose anything it can sell, at least not in the same way that they do if I pinch the DVD from the counter at Woolworths.
But Warner Bros does lose something. It loses a portion of the value of its product, which lies entirely in the extent to which it has a monopoly on supply. For all the arguments (frankly, excuses) about how “I wouldn’t buy it anyway” and “I buy more music when I can check if I like it by downloading the MP3 first”, in terms of Kant’s Categorical Imperative Warner Bros gets screwed: if everyone did the download, Warner Bros wouldn’t earn a dime.
Of course, the value of blacksmiths’ businesses went down when Henry Ford got going, so a loss in value to Warner Bros isn’t in itself necessarily a reason not to do it, indeed to suppose it does rather begs the question. But we shouldn’t pretend that they won’t lose out.
So, to recap, with traditional property you might create value by moving it from one person to another, but you will reduce their possessions; but with intellectual property you will reduce the rights-holder’s value and you will not reduce anyone’s possessions.
There’s a whole bunch of consequentialist complications with intellectual property industries (personally, I don’t see any real threat to making music, which any artist can now record and publish from his bedsit – but how a future movie blockbuster could possibly be made without IP protection is beyond me) – but let’s pass by all that and assume, for the sake of argument, that either human ingenuity will conquor all, or that the IP industries will go the way of Gothic cathedrals, or both, or (most likely) that something entirely unforeseeable would happen.
We’re still part-way through explaining why libertarians, of all people, seem to show no respect for Intellectual Property rights. Let’s look at what these rights actually are, which are under attack, how, and why:
- the law of Confidence and Trade Secrets
- “moral rights”
- Design rights
Nobody much seems to have a big problem with these. They may seem just as “artificial” as any other IP right, but neither libertarians nor others are complaining that it is an infringment on my free speech that I cannot describe my own cocktail of fizzy sugars as “Coke”.
Trademarks are an extension of the common law of passing off (the rule that you must not sell a thing by misrepresenting its provenence) which is in itself an expansion and clarification of rules against fraudulent dealing. Trademarks are an administrative convenience, which remove some of the defences to the common law of passing off, and create a irrebuttable presumption of guilt in certain circumstances, all with the intention of levelling the playing field in favour of the single target under attack from a swarm of fly-by-night imitators.
The only serious complaints about trademarks I have heard recently have been complaints about Internet domain names being taken from protestors, who want to use a web site address containing the trademark to bad-mouth the company or its product (www.acmecorporationsucks.com). This is a marginal complaint about application, and does not constitute a serious attack on the principle of trademarks.
- The law of confidence and Trade Secrets
Another potential restraint upon “free speech”, this is your right to prevent your doctor telling the tabloids about your syphilis. It is also an employer’s right to expect his employee to get on with keep quiet while they fix a problem instead of scaring all the customers away. It is also his right to stop his employee revealing the Colonel’s Secret Recipe.
Confidence is an extension of the law of contract: if I contract with you to keep schtum you should, and if we enter into a contractual relationship and I don’t explicitly enjoin your silence, then that expectation can sometimes be implied along with the expectation that you won’t spit in the soup you just served me.
The law of confidence extends this to certain cases where the law doesn’t recognise an actual contract. Doctors, when providing free treatment, are a good case in point.
Various whistleblower laws have been nibbling at the edges of the application of this principle, while new protections for “privacy” have been extending it slightly in other cases. Fundamentally, though, it is well founded and not under attack on principle.
- Moral rights
This is the right of an artist not to have his work altered after he’s sold it in a way that makes him look a fool or an incompetant. Alternatively, it’s the right of the artist to have his name taken off the work if it is so altered.
Moral rights are not recognised in some legal jurisdictions, and in some where they are they can be contracted out of, which rather defeats the purpose.
To the extent that they infringe on freedom of contract libertarian doctrine is opposed to moral rights. On the other hand, for a film studio to claim that Billy Writer was responsible for the absurd, sentimental mish-mash that made it through the production process is, in extremis, a serious slur on his reputation. And we do have libel laws for that sort of thing, so why not a particular legal right tailored for the particular situation but based on the same principle?
However moral rights’ patchy implementation, even lesser enforcement, and the fact that they only really impinge on real artists and authors (and their employers and direct customers) means this is not a topic of widespread interest.
Strictly speaking a patent is a precise description of how to build an object – and the monopoly right to build that exact widget, for a limited term.
The American Founding Fathers said that this was for the advancement of science. Most people like the idea that James Dyson, back-bedroom inventor of colorful and powerful vacuum-cleaners, gets a decent crack at getting rich rather than losing out to copycat products from incumbent manufacturers like Hoover. Libertarians are well known for supporting drug patents in the face of criticisms that they price drugs out of the affordable range of patients who die when they don’t receive them. To quote the decidedly un-libertarian TV series The West Wing:
Toby: The pills cost them 4 cents a unit to make.
Josh: You know that’s not true. The second pill cost them 4 cents. The first pill cost them $400 million.
The concept of patents is being criticised at the moment in three main areas: genome research and the like, software, and patents for business models.
Genome research is alleged to be a discovery, not an invention: it is argued that not only does this mean it is not a “machine” legally capable of being patented, but also that while the suction-pump on a Dyson may be nifty there are other ways of getting dust of the carpet; whereas there is only one true set of bases in the 103rd gene on the 22nd chromosome, and “you can’t patent a fact”.
Patents for software algorithms are attacked on the same basis. While software programs, like Microsoft Word, are protected by copyright, it is currently possible in some cases to obtain a patent from the US patent office for any conceivable implementation of a particular computation formula (algorithm). For example, compression algorithms: if you apply a particular set of calculations to a set of data, it is possible to compress that data so that it takes less disk space. GIF is an image format that describes an image on the screen containing 480,000 pixels each with any of 16million colours, for a total of 11,520,000 bits (or about 1.4Mb) compressed into a file of maybe 2,048,000 bits (or a much more faster download of 250kb). GIF depends on the LZW compression mechanism, which is an algorithm patented by Unisys. It doesn’t matter in what software language you rewrite that formula, Unisys are still asking for their patent license fees. Needless to say, some people say “Algorithm = formula = maths = truth = unpatentable”.
Perhaps the most surprising patents have been for business models. Ebay has tried patenting online auctions, Amazon has patented its “One-Click” ordering, various different people have been awarded patents which, as reported to a laymen by a lay journalist, appear to grant them exclusive rights to any business mechanism characterised by my computer buying something from your computer without either of us being aware of the specific transaction. Keep checking the papers; this story will run and run.
- Design rights
Design rights are simply a cross between trademarks and patents: they protect the individuality of the look of your product. The distinctive shape of the Coca-Cola bottle, the green and gold of anything from Harrods (even if you call yourself Harold’s), the beaming furriness of a stuffed Bugs Bunny in any size or deportment, these things are all protected by design rights. And most everybody reckons it’s OK for the law to protect this, because only Coca-cola is Coke ™.
Despite much aggro in the world of patents, Copyright is where the action is.
Rights holders are extending the utility of their rights both through technology and through aggressively-lobbied legislation. Copyright term protection has increased from 18 years to 30 years to 50 years to 70 years. The software industry has avoided the most product liability and fitness for purpose regulation by imposing “contractual license terms” on customers that depend, for their applicability, on the notion that you must copy software to your PC in order to run it, and so once you’ve bought the program disc you still need to contract for a license. Under the Digital Millenium Copyright Act, and the similar European Copyright Directive, you can’t even alter the protected item for your own use, e.g. making a DVD designed for Region 1 (USA) play in Region 2 (UK). And, of course, the music and movie and software industries are all trying to move to a pay-per use model, thereby capturing repeat payments from all those who don’t need yet another new wordprocessor for their personal letters and like the Beatles, not Ms Dynamite.
Rights holder organisations have Congress, Parliament, the Council of Ministers, WIPO and the 9th Circuit (on both sides of the Atlantic) in the palm of their hand. Nonetheless, the RIAA, MPAA, SPA, MCPS, BSA and the rest of the alphabet soup are all running scared. How can this be?
It’s because while companies that get even moderately successful at abusing other companies’ intellectual property rights make a nice easy target for a lawsuit, it is much, much harder to get gazillions of consumers to behave themselves if they don’t want to. Most of all, it’s because such mis-behaviour became so easy when everyone got on the Internet. Films are still very slow and painful to share; software is much easier, and has a longer payoff for the consumer who downloads it; but music – ah, music.
Time was, you’d go to the music store and browse through stacks of vinyl; top 10 singles sold millions and album covers were works of art in their own right. Now, people start playing one track, think of another, find it, and can have it downloaded and ready to play while the first one’s still annoying the neighbours. The only thing stopping the Internet using public doing this freely is their personal belief that this is morally wrong. And, quite simply, people just don’t think that.
Filesharing programs like Napster and Kazaa depend upon people giving away their music etc., while downloading new stuff from others. They get no direct benefit from doing so, indeed it might even slow down their own downloads, and some programs provide a simple switch to stop sharing your own stuff. The system appears to be open to an enormous free-rider problem, but it doesn’t actually seem to suffer at all.
When upstanding citizens do something represensible normally they feel a twinge of guilt. If you park on a double-yellow line you don’t shop with a clear conscience, and it’s not just the fear of traffic wardens. Saving extreme anarchists, there’s a slight twinge when you lie on your tax return, however swiftly it is assuaged by the “free beer” bought with the little less of your hard-earned that’s going to Uncle Sam for division between starving indigents and middle-class holders of bureaucratic sinecures. Should an allegedly respectable citizen walk out of a shop ‘accidentally’ wearing the dress she tried on in the fitting room, she certainly won’t chat idly about her ‘bargain’ with her friends. Chances are, the guilt and shame will prevent the dress ever being worn at all.
Filesharing is different. If you watch a file upload complete, you don’t feel a twinge of guilt that EMI have just lost a sale that was rightfully theirs to some unknown music-lover in Korea. You feel a sense of pride, of satisfaction that your taste in Country-Soul-Rap-Swing is not entirely without company, and you feel a sense of duty-discharged; you have done your bit to give back to the community that so kindly donated your 60Gb of wall-shaking, neighbour-deafening, environmental-health-officer taunting Mike Oldfield tracks.
Which brings me back to the Libertarians. Libertarians, though I love you dearly, can be some of the most self-righteous, morally censorious, dogmatic people I’ve ever come across. I know one who spent 10 months of unemployment steadfastly refusing to claim State benefits while her life savings drained away, and no attempt to persuade her that it was just a refund on her taxes shook her determination not to compromise her beliefs. I myself have some of these tendencies, and admit to being a little too quick to sneer at those who profess that taxation is theft from their government-grant-funded lecture halls. Yet card-carrying libertarians, myself included, just don’t connect online filesharing with that basic, raw, emotional commitment to the sanctity of property.
Nor is it just in “official” libertaria, like Samizdata. Check out Slashdot, one of the oldest blogs: produced by and for computer programmers and sysadmins, Slashdot participants have very strong libertarian tendencies. “In Soviet Russia…” has moved from comment title, to cliche, to joke, to the entire comment. A major topic category, “Your Rights Online” has its own editor promoting stories on Privacy – Echelon, Crypotography regulation, and Censorship, along with other well-worn Samizdata favourites. Read one of the daily stories on the RIAA/MPAA attacks on filesharing, and you’ll see many vigourous (well, loud) defenses of the right to share music, and the right to bear arms in case anyone tries to stop you. Sure, there’s a lot of talk about potentially legal uses of such software. There are those who claim they only use it for legal purposes – and a few even sound credible. The overall message remains clear: “I share music and stuff. I don’t apologise. Any organisation trying to prevent this is bad, and should be stopped”.
Mainstream media such as youth, culture and entertainment publications all recognise that filesharing is a fact of life and, with a bare nod to the sensibilities of their advertisers and their lawyers, accept it as guilt-free. Taken as a whole, we’re looking at the most widespread civil disobedience since the introduction of speed limits.
In conclusion, I believe that most people, and most libertarians, have decided in their hearts that they don’t believe in Intellectual Property Rights. They are willing to accept them as a pragmatic implementation of an aspect of the moral position also protected by the law of contract (confidence), of fraudulent passing off (trademarks and design rights), and of libel (moral rights). They like the idea of the madcap inventor having some protection from Big Bad Manufacturer, and are scared that no patents equals no R&D; equally, people dislike corporate behemoth carving out large and incomprehensible monopolies, especially over things that sound like true necessities or simple facts of nature. But since patents really only feature in the world of business there is little that most individuals care or can do about them anyway. However copyright doesn’t enjoy any of these defenses; there are no analogies with basic common law, and if ordinary citizens won’t wear it then Copyright is doomed. To believe and choose to respect Copyright, personally, deeply, emotionally, you have to truly believe that an idea can indeed be Property.
It is in the realm of Copyright where individuals, consumers, citizens are making their moral choice heard loud and clear. We can’t even be bothered to be mad as hell; we’re just not going to take it any more.