The Tyranny of Copyright
By Staff News & Analysis - October 11, 2010

US Trade Rep Releases Text Of Global Anti-counterfeiting Agreement … Washington, DC (Top40 Charts/ RIAA) – The Office of the United States Trade Representative (USTR) today released the full text of the Anti-Counterfeiting Trade Agreement (ACTA) following the final round of negotiations among ACTA parties earlier this week. The Recording Industry Association of America (RIAA)'s Neil Turkewitz, Executive Vice President, International, offered the following comments on the report. "While ACTA does not provide all of the answers about how governments will move forward to tackle online piracy, it is a very important multilateral statement concerning the importance of finding solutions to online theft. It may not be a precise roadmap, but it is a powerful expression of a common vision and unity of purpose. We applaud the U.S. government and the other ACTA negotiating parties for having reached a milestone in their negotiations to produce an agreement that will enhance the global protection of intellectual property. We urge the parties to finalize an agreement as quickly as possible." –

Dominant Social Theme: It's mine and you can't have it!

Free-Market Analysis: The Internet has greatly increased the argument over copyrights and "intellectual property" and now comprehensive treaties (see article above) are being negotiated to harmonize intellectual property rights across the globe. Sub dominant social theme: "Thank goodness for international cooperation organized by concerned world leaders and their ability to write thousand-page treaties that help enforce the rights of people like you and me."

Famous free-market economist Murray Rothbard was pro-copyright and anti-patent, using the rationale that copyrights were a kind of common law evolution whereas patents were state-developed and administered. Rothbard, (as we recall) being an anarcho-capitalist believed that communities would band together to enforce copyright but that patent law was unnecessary. However, Rothbard may have been operating without the complete historical narrative. What has emerged as of late from a historical standpoint (thanks, Mises Institute!) was that copyright was in fact an invention of the elite of the day in response to … books.

Nothing really changes, does it? The Gutenberg press was churning out books and bibles and after the Catholic church got nowhere with its idea of licensing books, the concept of "intellectual property" suddenly became important along with copyright. Nonetheless, as copyright evolved, it became something of a modern common law phenomenon not enforced formally by the state. This is in contrast of course to patent law.

It is easy to worship at the shrine of intellectual property. We recall in the mid-2000s how eloquent the American conservative broadcaster Rush Limbaugh was on the subject. A moral and clear-eyed individual, he sees himself as specializing in making complex subjects simple. His point was that if he created it, and someone else appropriated it, then it was stealing. Whether the property was physical or intellectual, it made no difference. Stealing was stealing. He was very sure about it.

Rush Limbaugh is a self-styled conservative. But libertarians often have a kind of blindness when it comes to intellectual property and copyright. In so many ways, they want the state to keep its nose out of the tent; but when it comes to issues of enforcing the ownership of certain intellectual material, these same libertarian types expect the full force of Leviathan to be brought to bear on their behalf.

However, more and more we can see that the issue of intellectual property is being used to draw a ring of legislation around the Internet and the free-flow of information. Download a free-file of a song or movie and one immediately becomes a "thief" and can be sued for multiple thousands of dollars. The criminal labeling is automatic and intended to short-circuit the reasoning parts of the brain. People are labeling animals and if one can find and establish a catch-all terminology, then people can apply it and they don't have to bother to think about the implications any further. The power elite is very good at promoting fear-based concepts and generally is good when it comes to labeling various human actions pejoratively, depending on what is intended.

When it comes to copyright, the language being used is very obviously pejorative. First, there is the label itself, "intellectual property." Having established via appropriate vocabulary a concept or a work of art is "property," the leap of logic is not profound. Those who appropriate the property without "legal" recourse are criminals and thieves. Finally, it becomes necessary to set up (in this Internet era) a full panoply of civil and criminal recourses throughout the world to enforce the growing body of law surrounding copyright and, of course, patents. Leviathan feeds and grows sleek.

What is our solution? Private justice, in a word (or two words). Private justice, which stands athwart of the current, growing mania for public justice in all things. In fact, we have spent a good deal of time in prior articles explaining that we believe in private market ("common law") justice. There is ample precedent for such an approach to justice, as we have pointed out.

Most justice, prior to the 20th century, anyway, was in a sense haphazard. People tended to work things out for themselves. This was why dueling was so popular, even in colonial America. People simply didn't go to the "courts," nor was there a judicial infrastructure as there is today. If somebody offended you, you either ignored it or challenged the person to a duel. Upper class society, as a result, was very polite.

The tribal societies of Afghanistan, which the West is currently trying to wipe out, have a similar approach to justice. One of the reasons that Pakistan military forces are concerned about attacking Pashtun "tribal strongholds" in Pakistan is because the intergenerational, familial, blood feud is still commonplace among the Pashtuns. (Such a cultural concept can be quite discouraging even for the most authoritarian mindset.)

Somalia, a venerable and ancient region, has a tradition of negotiated justice. The aggrieved parties meet, perhaps under a third party, and attempt to work out compensation for a perceived slight or injury. (There is no concept, therefore, of paying a "debt to society"; the wrong itself is to be rectified.) All of the above is in stark contrast to the current Western form of justice in which the state itself makes the laws, appoints the policing authorities, builds the prisons and runs the justice machinery – paying the salaries of both judges and prosecutors. Western systems of justice as a result are gradually turning into a kind of "industrial prison complex" both in the US and Europe.

The power elite, which thrives on mercantilism, has recreated the idea of statist (authoritarian) monopoly justice, which tends, anyway, to be a signature of larger Neolithic urban environments in their most complex (and from our view corrupt) stages. The elite exists above the state and uses the levers of the state for purposes of enrichment and control. This is why it is often said that there is one kind of justice for the wealthy and another kind for the poor. For the very wealthiest, of course, there are no concerns about justice at all. This is the advantage of the current, statist, authoritarian system. Private justice would involve the potential for confrontations with even the elite itself; state justice ensures that such confrontations cannot occur.

When it comes to copyright, we would argue for private justice as well. If someone wants to sue an individual or group for "stealing" intellectual property, the person should be able to do so. But there is no need for state laws or international treaties regarding the matter. The lawsuits should take place on an ad hoc basis (as inevitably they would). This would mean that only very large commercial enterprises would end up being sued. Nobody would bother with individuals downloading files, etc.

This is probably as it should be. Legal injury should follow natural law. What is "yours" is mostly what you can protect: your family, your property, etc. But launch a book or article into the world and protecting it becomes a good deal more arbitrary and difficult. International legal treaties now under development are supposed to allay this problem. But in fact, all the legal treaties in the world will do very little to halt intellectual property infringement because technology has rewritten natural law. It is very difficult to detect, let alone prosecute, individual copyright infringement.

In fact, we would argue that the current copyright law has had a perverse effect on culture. Any young person in his late teens or early 20s with a decent singing voice and a pretty face can become a "rock and roll" star and make millions. Because of copyright protections, it is like hitting the lottery. Likewise, copyright law has had a perverse effect on business and industry, being responsible for the rise of "brands" – in which someone can place a nameplate on a given item (handbags or shoes, etc.) and elevate its value a hundredfold. Copyright has much to do with these sorts of market distortions in our view.

We could go on about it, but we leave it up to individuals to make their own extrapolations. (Many of you, in fact, may not agree with us.) But for us, the elevation of certain artists, singers and even writers has more to do with copyright law than with genuine ability or even marketability. We would even make the case that state-enforced intellectual property law has a lot to do with the rise in the popularity of certain comestibles (Coca Cola) and even fast food generally.

The knowledge that copyrights are enforceable encourages the corporate manifestation of Leviathan to commit tens of millions to marketing certain "artists." It gives the power elite the ability to degrade the civic conversation because inevitably the elite itself has the money to pick and choose the cultural manifestations it wishes to popularize. It is a very clever system and it is based on legal copyright and leveraging the massive resources of the modern Western state in defense of an expansive definition of intellectual property.

Charles Dickens and other great artists of the 1800s had to tour to make money. They gave speeches and signed books. Once upon a time troubadours had to sing for their supper. We would argue that successful artists can still make a living even were intellectual property rights enforced privately rather than through statist mechanisms. Sure, it would be a less efficient and merciless system. People would pilfer songs and articles and even books. But so what? They do it anyway.

Editor's Note: We didn't directly deal with Stephen Kinsella's brilliant anti-intellectual property monograph in this article but will do so in another article.

After Thoughts

We are sure we have made few friends (certainly within the artistic community) regarding this issue. But we are fairly certain we are on the right track here. The Internet has moved the world from Information Scarcity to Information Plenty. We much prefer the latter state of affairs and there can be no doubt from our perspective that the elite itself is working hard to return to an era of Information Scarcity (where it can charge a great deal for items of dubious relevance). Copyright is a natural law issue. Intellectual property rights are being advanced as an elite argument to control the Internet and to clamp down on the free-flow of information.

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