In expectation of having my time wasted dealing with criminals, any time I go to court I come armed with a short read on political theory to work up a little bit of fury toward the system before they proceed to verbally deal me with some backwards logic. Butler Shaffer's A Libertarian Critique of Intellectual Property was the short candidate for today's trip. It's a quick read, and worth adding to any libertarian's arsenal on the subject.
What is the State?
Seeing it necessary in the beginning to make clear the entity it is we're dealing with that creates the idea of "intellectual property", essentially building his case against IP on it, he gives us the accurate libertarian definition of the State.
"There is a generally-accepted definition of 'government' as an entity
that enjoys a legal monopoly on the use of violence within a given territory."
He defines it once more as
"...an organizational tool of violence that is able to accomplish
its purposes only through the willingness of its victims to
accord it legitimacy."
Since the State therefore operates through violence, or, aggression, and the enforcement of property rights in ideas (IP) must entail a violation of genuine property rights in permitting agents of the State to invade one's property in order to prevent them from shaping their property how they see fit, etc., as to not "copy" the person owning rights to said design or works, he asks
"..can a libertarian philosophy defend the products of such coercive undertakings?"
The Question
Not interested in debating whether or not private property claims are best protected with a State or without one, which he says should be "left to a debate between anarchist and minarchist adherents", he's posing a central question to the book here:
"...in the same way that respect for individual
property claims can arise informally among men
and women, is there evidence for such claims to IP
being so recognized? If the answer should prove to
be “no,” can a libertarian philosophy be reconciled
with the idea of any property interests (IP or
otherwise) being created by the state?"
The Origin of Intellectual Property
He asks up front the important question of whether IP originated through contractual relations of people freely trading, or if it is something which is being imposed on people.
"Are the origins of IP interests to be
found in the informal processes by which
men and women accord to each other a
respect for the inviolability of their lives—
along with claims to external resources
(e.g., land, food, water, etc.) necessary
to sustain their lives? Or, are they to be
established by formally enacted rules generated
by political systems?"
He concludes, obviously, that it's the latter; and therefore illegitimate.
Imposing the state-made law on everyone
Since IP didn't form out of contractual relations between two people, no one else can be said to be party of such a transaction. "When the State acts", he says
"..all are legally bound by the rules whether they agree with
them or not. If copyrights, patents, or trademark protections
are not recognized among free people—unless specifically
contracted for between two parties—by what reasoning can
the state create and enforce such interests upon persons who
have not agreed to be so bound?"
Even were this private transaction to involve some sort of agreement between those two people regarding IP, then, I would see problems with this, as you wouldn't fully own it if it came with restrictions (e.g. you can't take it apart, you can't organize words in the same way, etc). While they would fully own, say, your $100, you would have limited ownership on the good; you wouldn't be free to reproduce it, improve it, copy it, etc.
Common Law Precedent
Before IP was created by government, Common Law principles had already been decided on the issue. If someone were to print their book and release it to everyone, then the act of publication was
"...treated as an abandonment of control over...claim of ownership."
The Common Law had decided the issue correctly.
"...such a claim is lost once a product has been released to the public."
"Without intellectual property rights there would be no innovation"
This is the typical claim for the need for IP rights, since supposedly there would be no incentive to produce anything unless the outputs were protected from competition. Quite the contrary is true.
"Patents and copyrights inhibit the creative process by discouraging
the exchange of information relating to a particular line of research
or exploration. If one scientist has been issued a patent for his invention
of a widget, another scientist would likely be discouraged from continuing
his own work on a similar product, or from making modifications or
variations on the patented item."
A quick thought alone should tell us competition is preferable to monopoly. He deals with this by essentially offering us a way to pose the simple question to the defender of IP: do (1) people work better alone, isolated by themselves; or do they (2) work better in groups, where ideas can be thrown around and advanced? Anyone who answers the latter (2) should concede that IP law is bad, then, for the question they're posing; the law gives the right to one person, or groups of persons holding the patent, and excludes all others from competing.
If anything, he references Nikola Tesla's work, that
"...the fear that a patent or copyright awarded to another might foreclose
continuing developmental work adds to the pressures for secrecy."
There is nothing wrong with borrowing ideas from other people and expanding upon them. This is what would give rise to innovation, not the other way around.
"The problem was not that Edison was able to synthesize the
ideas of others with his own: such is the nature of the creative
process. The problem was the Patent Office!
You can't steal "ideas." You can't outrace thinkers to the Patent Office to prevent them from thinking and shaping their property how they wish.
It's the IP laws that stifle productivity, then.
"All of these early inventions and creations were accomplished,
as far as is known, without a violence-backed monopoly to prevent
others from copying them."
He thus addresses IP "rights" properly as being against human nature itself.
"The proposition that knowledge and ideas can be made the
exclusive property of one who discovers or expresses what was
previously unknown, is contrary to the nature of the intelligent
mind, whose content is assembled from a mixture of the
experiences of others and oneself."
To conclude here
"Life is hindered, not enhanced, by the coercive restriction
of options by which people peaceably pursue their self-interests."
Once more
"When the coercive powers of the state are invoked to benefit some
and to restrain others, the creative processes will always suffer and,
as a consequence, so will the vibrancy of a civilization."
I don't see how anyone couldn't agree.
The historical case against IP
He makes the empirical case, too, that the lack of the issuance of copyright or patents did not prevent any of the artists, inventors, etc., from producing their works, listing a handful of artists, inventors, and such that engaged in creativity and production despite there being no IP law, which should show that IP law isn't the force behind production anyway: Shakespeare, Beethoven, Bach, Mozart, Van Gogh, Michelangelo, Da Vinci, Rembrandt, Renoir, etc.
"Civilization, itself, has developed from the works of many prolific individuals,
most of whom conferred upon the rest of humanity their discoveries, inventions,
writings, or artistic creations, without expectations of enjoying a monopoly status
as either their purpose or consequence.
Since they obviously draw the line somewhere, that the preceding inventions of mankind were made despite the lack of IP law, which he emphasizes did not prohibit this expansion in inventions, and nor were they inspired only due to a desire to reap a profit, they should concede and abandon their IP claims, since they were built off of pre-existing inventions or knowledge."
For example:
"One can regress millennia before the first patent or copyright
laws were enacted and discover the origins of numerous tools
(e.g., hammers, needles, knives, axes); transportation systems
(e.g., the wheel, boats, wagons, sails)
The point he is trying to make is why should anyone be able to patent something when they're only building off of what someone else already made?
"Should General Motors, Chrysler, Harley-Davidson, and
Schwinn Bicycle Company be required to pay royalties to
the offspring of the inventor of the wheel?"
He goes on
"Should symphony orchestras be obligated to pay royalties to
the descendants of the composers whose music they perform?
Perhaps these point might illustrate how ridiculous such claims are.
Arguing for IP
He says, to further this thought above that everyone is building off one another
"...the language with which one formulates and communicates his or
her understanding to others, has been provided by predecessors."
A thought occurred to me that arguing for intellectual property is necessarily a performative contradiction, for the defender of IP must draw upon thought, language, and other ideas that were constructed before they came along, and so therefore they're "copying" or "ripping off" others in trying to state that "no one should be able to able to arrange their words in the same way"; they're indeed doing that to make the argument.
Getting the people to be against IP
Like anything, there usually needs to be some popular issue in society to get people to accept the libertarian's consistency throughout subjects. Here, Shaffer offers us the rejection among many of Monsanto, and their in-bed relationship with government to patent seeds and prevent anyone else from using them. He rightly sees it as important since
"...patents...issued to corporations involved in food
production...raises concerns that affect the immediate
survival of people."
Going back to the issue of releasing something into the public domain, which common law had decided on copyright is the relinquishing of the control over it, he makes the analogy that
"...the subsequent sale of its seeds would seem to constitute a 'publication'
of the content of these seeds and, with it, the loss of control."
Final statements
The book is short; you can read it in an hour, and so you should.
The overall purpose of his writing is to show that since IP law didn't originate by the contractual relations between consenting individuals, but rather is imposed on them by the State, an institution that uses coercion and violence to enforce it's ideas, that it's incompatible with libertarianism to accept the premises of property rights in ideas.
He gives his final word on the subject of IP; of copyrights, patents, trademarks, trade-secrets.
"Can one, consistent with a libertarian philosophy, respect any
'property' interest that is both created and enforced by the state,
a system defined by its monopoly on the use of violence? I regard
the proposition as indefensible as would be the question of a
libertarian defense of war.
Libertarians must stand squarely against intellectual property.