Copyright and Private Markets
By Staff News & Analysis - October 13, 2010

Bollywood megastar Amitabh Bachchan … is popularly known for his unique baritone voice. Big B had decided to copyright his voice so that no one misuses it. The megastar was quoted saying that he was not aware that his voice can be misused and thus can lead to a lot of corruption. Amitabh said that he will take the help of the laws to prevent misuse of his voice. – OneIndia

Dominant Social Theme: Expand the horizons of copyright for all and build a healthier world. If you sound like me, you better get a voice change!

Free-Market Analysis: We have written two articles on intellectual property proposing that market forces provide the determinant factor for copyright, patents, etc. This is the third and final one (for now anyway.) We can see from the above article excerpt that the current mania to expand copyright and patents into every area of human existence is continuing apace. Dominant social theme: No matter what your problem is regarding intellectual property, government standards can provide the answer.

Of course, this really isn't true. The trouble with Western case-and-precedent law is that builds on itself until truly ridiculous conclusions are reached and civil society is inevitably eroded. A feedbacker wrote to us that as a result of the current intellectual property mania, folk music has all but disappeared in America, and he is probably right. Every part of human communicative commerce is now being poisoned by this particular tsunami.

What's the solution? We think it is relentless privatization of justice, and the expansion of "marketplace justice." In this final article we shall try to expand on that solution and discuss IP "ownership" in greater detail as well. In our first article we discussed the issue generally. In our second article, we discussed it especially within the parameters provided by N. Stephen Kinsella who, along with some others, has been relentlessly arguing that there is no such thing as intellectual property. He makes an argument regarding this perspective that hinges on scarcity, pointing out that ideas are not scarce and that therefore what one is selling is actually the book (or electronic download, we presume) ONE TIME and that is all. What someone does with the property thereafter is that person's business.

This is much like selling a chair or table. If one wants to resell a chair or table, the initial seller presumably wouldn't have much to say about it. There are no ghostly strings or invisible connections, he maintains, that bind the creator to the product and mandate, therefore, that a third or fourth party user continue to honor the initial contract not to resell the product or information. Free-market economist Murray Rothbard somewhat disagreed with this, granting the reality of copyright and Kinsella's ground-breaking perspectives provided quite a shock to the general libertarian system.

We might be more dismissive of Kinsella's argument but for three reasons. We are not, individually or in aggregate, smart enough to dismiss the thinking of top free-market minds at any level. Also, Kinsella has done the world a favor with his perspectives as they are in some cases baffling and infuriating but also provide the kind of real intellectual stimulation that any thinking person should appreciate. Finally, Hans-Hermann Hoppe, one of the most brilliant libertarian minds in the world, and a worthy successor to Rothbard et al., agrees with much of Kinsella's reasons about property being derived from scarcity, and may even have anticipated some of Kinsella's arguments.

So even though we believe intrinsically that there is such a thing, evidently and obviously, as intellectual property, we have to grant that from a theoretical, free-market standpoint, there may not be. There is the physical "thing," the delivery mechanism, that one purchases, (just like a chair or table) but this is not the same as saying that there is intrinsic value in the ideas contained therein.

There are obviously arguments that can be made against Kinsella's perspectives, and great free-market minds such as Ayn Rand held much different perspectives regarding intellectual property. For Rand, the creative product was indeed property and she had no difficulty tying "invisible strings" to it to prevent or modify certain kind of third- and fourth-party use.

We ourselves have observed that Kinsella's arguments are highly theoretical and that from our point of view natural law needs to be recognized. He and Hoppe both focus on the initial claim as providing for ownership. Thus if one claims a piece of land, or a continent for that matter, as the first individual arriving there, one assumes the rights of ownership. This may, of course, be theoretically accurate, but as we have pointed out previously, natural law has a say in the matter as well. It may be nice to claim a continent, but when others get there, they may not respect your theoretical construct. You may end up with a piece of land, if that, after all is said and done.

Another way that Kinsella's argument is theoretical, from our perspective, is in how he dismisses the possibility of a vertical contract, (the concept of privity) apparently based on the evolution of case law. However, we can think of certain vertical contracts that exist even today. A car may be sold and resold several times, yet the contractual elements of a warranty may remain in place (so long as the new owners abides by the warranty). This may not be an exact or logical rebuttal, but nonetheless, it seems to us that contractual obligations can, in fact, extend beyond the initial purchaser(s).

Regardless of whether one appreciates Kinsella's point of view or finds Rand's perspective more appropriate, or perhaps even other alternative free-market approaches, we would argue that the solutions are best left up to the market itself. We have argued this from the standpoint of fractional reserve banking. Within free-market parameters, we would want to let the market decide as much as possible.

Presentations such as Kinsella's are very important. The more people understand their environments and how they relate to their world economically, the stronger and freer (and ultimately more satisfying) one's personal experience can become. But how is one to implement a hypothesis? It is not possible. The best way to advocate for the emergence of an evermore civil society is to promote a maximum level of personal freedom.

If someone wants to provide a fractional banking service within a free-market environment, that person ought to do so. If someone wants to claim intellectual property rights (that may or may not exist) that person ought to be allowed to do so. Of course there is a difference between competition and justice. One depends on voluntary cooperation and the other on force, or so it would seem. But in advocating private justice, we are not suggesting force, or certainly not when it comes to issues such as copyright and patents. We would argue that people have a right to enforce private copyright and patent claims IF THEY CAN. It is a kind of civil-law formulation.

Ultimately we would suggest that people have a right to try to attach invisible strings to their intellectual property. Who is to stop them after all? The enforcement, within the framework we are suggesting, would in fact amount to a kind of intense market competition. First of all, creators would not target individuals but might confront large entities reproducing the work. A third party negotiator might be suggested. A negative marketing campaign against the entity reproducing the work might be fomented. Other business pressures might be brought to bear.

All of this would be expensive, though within the parameters of the marketplace itself from our point of view – as in a private justice environment as we are suggesting it, people have to work out their differences via the market itself or third-party negotiated solutions. In some cases, indeed, it might be taken farther. In America, in the 1920s and the 1930s, for example, there were newspaper wars and news companies actually removed competitors' offerings from the street. In real life, the market-based conflict-resolution we are suggesting is not always neat or even non-violent, but at least it would revert back to the individual actors involved and be removed from the state.

Currently, the state has a monopoly on justice in the West, though for much of human history justice was a far more informal and market-driven process. Today the state creates the prisons, writes the rules, prosecutes rule-breakers, renders judgment, etc. It is monopoly justice, divorced from any kind of market input that is creating an increasingly authoritarian environment throughout the West. Between the re-imposition of the Napoleonic code throughout the EU and the rise of so-called debtors prisons in the US, the trends are discouraging.

Whether it is IP or other issues, the more that people can get back to individual problem solving with or without third-party negotiators the better off civil society will be. People may never adopt Kinsella's perspective that their creative endeavors are not "property," but it is certainly possible that the incredibly complex methodologies of Western justice can be pruned back over time. It may be too much to ask Western civil society to abandon case and precedent law entirely, but we would suggest that people consider it proactively. Judicial outcomes, wherever possible, ought to be informal and customized. The idea that justice need have cookie-cutter outcomes in order to be "just" is another power elite promotion from our point of view.

It is probably easier to change the delivery mechanism for justice than to convince someone, necessarily, that their texts are not property or that private fractional reserve banking is a criminal endeavor. Reducing, or even eliminating, the resources and involvement of the state in judicial and civil matters as much as possible, would put the onus of enforcement on the individual. Much of what passes for "justice" today might suddenly be seen as too expensive to insist upon, once it was up to the individual. From our point of view, this would tend to do away with at least some of the more sociopathic elements of legal activism that are now emerging. People would stop trying to copyright their voices, for instance as it would be extremely difficult for them to enforce without the aid of the state.

After Thoughts

We realize this is an extreme position and one not taken even by many of the libertarian lawyers now writing eloquently on these subjects (Kinsella included) so far as we know. Kinsella has scheduled several books for publication that may deal with these issues in the near future and we will certainly be interested in what they have to say. For us, issues of private justice, a return to common law and even pre-common law problem solving, even regarding so-called criminal issues, is part of creating a freer and more market-oriented society. Justice today is a state-run industry. The prison-industrial complex is the result. The more market-responsive human problem solving can become, the better off people and their societies will likely be.

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