I established the journal Libertarian Papers three years ago, in Jan. 2009.¹ Over this time we published 127 articles and kept improving, expanding our editorial board and innovating–from volunteer narrations to print-on-demand and ebook versions.² As I noted recently, Matthew McCaffrey, previously the Managing Editor, has agreed to serve as the journal’s Editor starting with Vol. 4 (2012). I’ll serve as Executive Editor.³

Matt has announced a few changes:

There have been some recent alterations to the Libertarian Papers website which may be of interest to readers and authors. Below are listed some of the most significant changes:

 And the first four articles for 2012 have just been published:

1. “The Role of Work: A Eudaimonistic Perspective”, by Michael F. Reber

2. “The Internal Contradictions of Recognition Theory”, by Nahshon Perez

3. “Norms and the NAP”, by Kris Borer

4. “Recompense for Fear: Is Forced Russian Roulette Just?”, by David B. Robins

Endnotes

1. Welcome to Libertarian Papers!
2. Libertarian Papers at Six Months; Libertarian Papers: Fifteen Minutes that Changed Libertarian Publishing; Libertarian Papers, Vols. 1 and 2, Now Available in Print and Ebook
3. Matt McCaffrey Named Editor of Libertarian Papers.

According to this AP report.

Before long we will all be grounded except for privileged members of the Republicrat National Socialist Party, who will also have special Party stores that carry Eastern goods not available to mundanes.

Is this the change we were told we hoped for? Do you really expect the next Republican president to cut back on the warfare-police state?

Rothbard, in For A New Liberty:

The idea of a strictly limited constitutional State was a noble experiment that failed, even under the most favorable and propitious circumstances. If it failed then, why should a similar experiment fare any better now? No, it is the conservative laissez-fairist, the man who puts all the guns and all the decision-making power into the hands of the central government and then says, “Limit yourself”; it is he who is truly the impractical utopian.

Rockwell, from The Calamity of Bush’s Conservatism:

 What does conservatism today stand for? It stands for war. It stands for power. It stands for spying, jailing without trial, torture, counterfeiting without limit, and lying from morning to night. There comes a time in the life of every believer in freedom when he must declare, without any hesitation, to have no attachment to the idea of conservatism.

Rockwell, from The Enemy Is Always the State:

Let me state this as plainly as possible. The enemy is the state. There are other enemies too, but none so fearsome, destructive, dangerous, or culturally and economically debilitating. No matter what other proximate enemy you can name – big business, unions, victim lobbies, foreign lobbies, medical cartels, religious groups, classes, city dwellers, farmers, left-wing professors, right-wing blue-collar workers, or even bankers and arms merchants – none are as horrible as the hydra known as the leviathan state. If you understand this point – and only this point – you can understand the core of libertarian strategy.

See also my post The Nature of the State and Why Libertarians Hate It.

I noted previously that Reason author Cathy Young had written in favor of a fifty-year copyright term. Now, in a recent Reason article,”The Trouble with the Copyright Debate” (subtitle: Does every illegal download represent a lost sale?), she joins the anti-SOPA bandwagon, but is still pro-copyright:

A few days ago, I committed an illegal act.

Instead of watching the latest episode of the British fantasy show Merlin on the SyFy channel and suffer through a hundred commercials and pop-up ads that sometimes deface the screen during the show itself, I got online and watched an illicitly streamed video. What’s more, I intend to continue my crime spree and download the three-episode second season of Sherlock, which aired on the BBC earlier this month, rather than wait until May when it finally gets to PBS.

The point of this true confession is that the current debate about copyright enforcement and piracy on the Web largely misses the boat. Yes, creators and copyright holders have important rights and legitimate interests. And yes, some Internet users display an obnoxious sense of entitlement to “free” intellectual content.

So: Young is anti-SOPA. But she is still pro-copyright: “creators and copyright holders have important rights and legitimate interests”. And yet she admits she herself engages in piracy (while bizarrely taking a superior tone in condemning others who pirate). Say what? If she thinks copyright should last 50 years, and that it is legitimate, then … when she pirates she is violating people’s rights, and should be penalized–perhaps even by imprisonment. Right?¹

Young is confused and hypocritical. She favors copyright, and bashes other people who pirate, all the while engaging in piracy herself and then condemning efforts to enforce copyright. She’s trying to have her copyright and eat it, too.

As I argued earlier this week SOPA is the Symptom, Copyright is the Disease. The only solution is to abolish copyright. Wake up and smell the libertarian principles, Young.

[C4sIF]

Endnotes

1. The Megaupload guys are facing untold years in prison; Falkvinge: Horrific: Two Years, Heavy Fine For 60-Year-Old Music File Sharer; one year federal prison sentence handed down to a man for uploading a copy of the Wolverine movie; British student faced with extradition to the US for having the wrong links on his website.

Professor Hoppe was previously interviewed on Australian Broadcasting Corp. Radio, on the topic “Anarcho-capitalist libertarianism: What is it?” (approx. 25 minutes). It was aired on Jan. 23, 2012; audio is available here. As described on the ABC site, “What is anarcho-capitalist libertarianism? Hans Herman Hoppe explains the idea behind it and why it’s a very different and quite radical way to think about government, society and the economy.”

A recent NPR feature, The Secret Document That Transformed China (h/t Vijay Boyapati), tells the fascinating story about one of seminal events at the dawn of the modern Chinese experiment in their version of capitalism.

In 1978, the farmers in a small Chinese village called Xiaogang gathered in a mud hut to sign a secret contract. They thought it might get them executed. Instead, it wound up transforming China’s economy in ways that are still reverberating today.

The contract was so risky — and such a big deal — because it was created at the height of communism in China. Everyone worked on the village’s collective farm; there was no personal property.

“Back then, even one straw belonged to the group,” says Yen Jingchang, who was a farmer in Xiaogang in 1978. “No one owned anything.”

At one meeting with communist party officials, a farmer asked: “What about the teeth in my head? Do I own those?” Answer: No. Your teeth belong to the collective.

Because of communism, “In Xiaogang there was never enough food, and the farmers often had to go to other villages to beg. Their children were going hungry. They were desperate.”

So the farmers agreed to a form of personal property, where each farmer could keep some of his own crop, above a certain threshold. This would give them incentives to work harder and the ability to keep some of the fruits of their labor. However,So, in the winter of 1978, after another terrible harvest, they came up with an idea: Rather than farm as a collective, each family would get to farm its own plot of land. If a family grew a lot of food, that family could keep some of the harvest.

This was done in secret for fear of reprisal by the state. Their agreement “recognized the risks the farmers were taking. If any of the farmers were sent to prison or executed, it said, the others in the group would care for their children until age 18.”

Their new pact was a success: “At the end of the season, they had an enormous harvest: more, Yen Hongchang says, than in the previous five years combined.”

However, the communist party officials noticed, and Yen Hongchang was berated and treated like a criminal by officials at the local Communist Party office. But at this point in time, “Deng Xiaoping, the Chinese leader who would go on to create China’s modern economy, was just coming to power. …So instead of executing the Xiaogang farmers, the Chinese leaders ultimately decided to hold them up as a model.”

Now something in this story called to mind an issue that has long bugged me: when libertarians, or others, criticize the libertarian idea of self-ownership. When libertarians do this, it is usually because of the simpleminded and confused argument that it “makes no sense” to say “I” am a self-owner because I am myself. Or that it makes no sense to say I own my body because I am my body. Often it is a materialist or atheist libertarian who makes this argument; it’s as if they fear that admitting that I own my body implies there must be some supernatural realm where “I” am really a soul, and I-the-soul am the user or inhabitant or possessor or owner of a material body. They think self-ownership implies mystical or supernatural or religious ideas. They think it implies a view such as that of C.S. Lewis: “You don’t have a soul, you are a soul. You have a body.”¹  And when outsiders criticize self-ownership, it is sometimes for these reasons, but sometimes also because they truly believe in a form of collectivism and other-ownership: they do not think you have the right to decide what to do with your body–that conscription or imprisonment for drug or tax crimes is sometimes justified. These people understand what self-ownership is, and they reject it. Some religious conservative types seem to oppose self-ownership since they believe it is contrary to God’s ownership of us.

As an example of the former criticism, in a lengthy thread discussion to a post by David Brin about libertarianism, one commentator, “Marino”, wrote the following, in response to my comment that libertarians recognize self-ownership (his comment has apparently been deleted, but I had quoted it in a reply):

“just one simple question. Why “everyone owns his/her own body” should be a “self-evident truth”?

IMHO it’s pure metaphysical nonsense.

It means that there is something (the “I”) owning the body as if the body were a separate entity. Now, it’s really “ghost in the machine” Cartesian mind( or soul)/body …”

Or this comment on another thread:

There is no such thing as self-ownership. It is an incoherent concept and should be dropped. I do not own my self, I am myself.

Or former libertarian Francois Tremblay’s post Self-ownership is a meaningless concept (follow-up post). As I note in my post Leftist: Only Capitalists Believe in Self-Ownership, Tremblay writes, in a claim so stupid that it staggers the mind:

“Self-ownership” is nonsense, but let us be clear on the goal of such a concept. Self-ownership is a capitalist attempt to justify individual freedom in a world where property reigns.

Now I have explained the errors in this confused argument against self-ownership in a number of places: see, e.g., The relation between the non-aggression principle and property rights: a response to Division by Zer0; also What Libertarianism Is and How We Come to Own Ourselves. As I wrote in Intellectual Property and Libertarianism:

The libertarian view is that each person completely owns his own body — at least initially, until something changes this, such as if he commits some crime by which he forfeits or loses some of his rights. Now some say that the idea of self-ownership makes no sense. You are yourself; how can you own yourself? But this is just silly wordplay.

To own means to have the right to control. If A wants to have sex with B’s body, whose decision is it? Who has the right to control B’s body? A, or B? If it is A, then A owns B’s body; A has the right to control it, as a master to a slave. But if it is B who has the right to decide, then B owns her own body: she is a self-owner.

And of course, self-ownership is what is implied in the nonaggression principle. Ayn Rand famously said, “So long as men desire to live together, no man may initiate.… No man may start — the use of physical force against others.” To initiate force means to invade the borders of someone’s body, to use her body without permission or consent. But this presupposes that that person has the right to control her body: otherwise her permission would not be needed, and it would not be aggression to invade or use his body without his consent.

So the libertarian property-assignment rule for bodies is that each person owns his own body. Implicit in the idea of self-ownership is the belief that each person has a better claim to the body that he or she directly controls and inhabits than do others. I have a better claim to the right to control my body than you do, because it is my body; I have a unique link and connection to my body that others do not, and that is prior to the claim of any other person.

Anyone other than the original occupant of a body is a latecomer with respect to the original occupant. Your claim to my body is inferior in part because I had it first. The person claiming your body can hardly object to the significance of what Hoppe calls the “prior-later” distinction, since he adopts this very rule with respect to his own body — he has to presuppose ownership of his own body in order to claim ownership of yours.

The self-ownership rule may seem obvious, but it is held only by libertarians. Nonlibertarians do not believe in complete self-ownership. Sure, they usually grant that each person has some rights in his own body, but they believe each person is partially owned by some other person or entity — usually the state or society. Libertarians are the only ones who really oppose slavery, in a principled way. Nonlibertarians are in favor of at least partial slavery.

This slavery is implicit in state actions and laws such as taxation, conscription, and drug prohibitions. The libertarian says that each person is the full owner of his body: he has the right to control his body, to decide whether or not he ingests narcotics, works for less than minimum wage, pays taxes, joins an army, and so on.

But those who believe in such laws believe that the state is at least a partial owner of the body of those subject to such laws. They don’t like to say they believe in slavery, but they do. The modern left-liberal wants tax evaders put in jail (enslaved). The modern conservative wants marijuana users enslaved. [endnotes omitted]

I am always surprised when libertarians, of all people, deny the validity of self-ownership. It just means one owns one’s body. As Hoppe writes, “Every person is the private (exclusive) owner of his own physical body.”² And as I have written previously, “each person is prima facie the owner of his own body.”³ Why prima facie? Because, as noted above, these rights can be alienated or forfeited by committing aggression.⁴ The objection to the notion of self-ownership on the grounds that it is incoherent or implies religious or mystical views is without foundation. The body is a scarce resource, and to avoid conflict over its use, either the person whose body it is owns it, or someone else does. The choice is self-ownership, versus other-ownership, i.e. slavery. The quintessential libertarian view is self-ownership. And this common sense, natural, intuitive notion is not new or hard to appreciate. As Richard Overton wrote in 1646, in An arrow Against all Tyrants: “To every individuals in nature, is given an individual property by nature, not to be invaded or usurped by any ; for every one as he is himself, so he hath a selfe propriety, else he not be himselfe”. And Locke, in 1690: “Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to  but himself.”⁵ As Rothbard wrote in The Ethics of Liberty, “The fundamental axiom of libertarian theory is that each person must be a self-owner, and that no one has the right to interfere with such self-ownership” (p. 60), and “What … aggressive violence means is that one man invades the property of another without the victim’s consent. The invasion may be against a man’s property in his person (as in the case of bodily assault), or against his property in tangible goods (as in robbery or trespass)” (p. 45)

To return to the story about China: what struck me about this story was this line:

At one meeting with communist party officials, a farmer asked: “What about the teeth in my head? Do I own those?” Answer: No. Your teeth belong to the collective.

This is a brilliant illustration of the libertarian view on self-ownership and that to deny it means someone else owns your body. It’s either you or master. It’s either self-ownership or slavery.

When someone denies self-ownership, I am reminded of Francisco D’Anconia’s “Money Speech” in Ayn Rand’s Atlas Shrugged: “Run for your life from any man who tells you that money is evil. That sentence is the leper’s bell of an approaching looter.” Likewise, anyone who opposes self-ownership is either a fool or an advocate of slavery. In neither case is he a libertarian. (See also my post Against the Non-Aggression Principle and Self-Ownership? Run!)

The next time some libertarian denies the validity of the concept of self-ownership, point him to this article–or be prepared to run or grab a weapon.

Endnotes

1. Quoted in Bob Murphy’s post Can God Own Your Soul?
2. Hoppe, State or Private-Law Society.
3. Kinsella, What Libertarianism Is.
4. See Kinsella, Punishment and Proportionality: The Estoppel Approach. Instead of viewing rights as having been forfeited, another way to look at it is to say that you never had a right to be free from responsive force in the first place, but only the right to be free from aggression.
5. John Locke, Second Treatise of government (1690), chap V, 27.

Over at C4SIF, I’ve blogged quite a bit lately about SOPA and PIPA and the recent Internet blackouts and other protests against these bills, which threaten free speech and the open Internet (Mike Masnick et al. at Techdirt have also been great on exposing and analyzing SOPA). As Jeff Tucker noted recently,¹ the protests against SOPA started not with conservatives or even “libertarians,” but with civil libertarians of the “left,” as well as Silicon Valley tech types. Of course, some libertarians have been opposed to SOPA (and copyright) from the beginning–the more radical and anti-state libertarians, in particular Austro-libertarians and left-libertarians (such as some of the people associated with C4SS² ).

Aside from the anti-state libertarians, however, most of the protests against SOPA concede that copyright is good, intellectual property is important, and piracy is bad–but then they bemoan that SOPA “goes too far.” For example, as I noted in Where does IP Rank Among the Worst State Laws?, consider this article in PC Magazine, providing the response of 11 PCMag staffers asked for their take on SOPA. The response to SOPA was universally negative, but most of them first prefaced their opposition to SOPA by genuflecting to copyright and recognizing that IP piracy “is of course a real problem”. For example:

• “Yes, theft of intellectual property is wrong, but it shouldn’t be protected at the cost of free speech and an open Internet.”
• “SOPA is a perfect case of a disproportionate reaction to a real problem. Lawless Web sites full of pirated content are a real problem, but breaking the Internet isn’t the solution.”
• “This proposed legislation is akin to having libraries monitored or even shut down because there is a chance that a book may contain a piece of plagiarized work.”³
• “IP is a precious thing. For example, every writer on PCMag has had their work pirated at one time or another. However, this legislation goes” too far.⁴
• “There is definitely a need for content owners like movie studios and music labels to protect their content from piracy, but the proposed legislation isn’t the answer.”

This is the type of response that almost all the SOPA opponents have taken, such as Facebook and Mark Zuckerberg, which said that

rogue foreign sites that pirate American intellectual property or sell counterfeit goods pose significant problems for our economy,” but PIPA and SOPA “are not the right solution to this problem, because of the collateral damage they would cause to the Internet.

This type of argument is extremely common. Depressingly common.

And not only do most opponents of SOPA accept the basic legitimacy of copyright, they also accept the RIAA/MPAA propaganda about “piracy” imposing billions of dollars of “cost” to the economy every year–even though there is no evidence of this.⁵ The problem is that copyright obviously infringes free speech and other individual rights. This is no surprise, given its origins as a tool of censorship. As the Supreme Court recognized in its most recent copyright decision, Golan v. Holder (the case authorizing Congress to re-copyright public domain works), “Concerning the First Amendment, we recognized that some restriction on expression is the inherent and intended effect of every grant of copyright.” It is widely recognized that copyright (and even patent) restricts freedom of speech and expression.⁶ By assuming that copyright is legitimate–as the courts do–and that the First Amendment protects freedom of expression, a balance must always be found between freedom and censorship. And this is the dilemma most people find themselves in when they start with the premise that we must protect intellectual property rights, “but” we can’t “go too far” because otherwise we would harm free speech (and the open Internet) “too much.”

Obviously there is a conflict between copyright and censorship and government control of ideas, on the one had, and freedom of expression and the open Internet, on the other. This is being increasingly recognized. Leo Laporte recognized this in a recent episode of This Week in Tech. You have to choose: the Internet, or copyright, he observed (opposed to technocrat Niley Patel). In the aftermath of the SOPA battle, we have people finally asking important questions. The Washington Times questions copyright abuse in its opposition to the Golan decision. The Daily Caller questions copyright’s legitimacy. Mark McKenna at Slate, in Don’t Stop at SOPA, asks: “SOPA and PIPA are (almost) dead. Now can we talk about the law that already exists?”. Glyn Moody at Techdirt asks the important question: OK, So SOPA And PIPA Are Both On Hold: Where Do We Go From Here?

And what is the answer? Some people are hinting at it, or directly suggesting it: abolish copyright. As Rick Falkvinge observes in It Is Time To Stop Pretending To Endorse The Copyright Monopoly,

the copyright industry is actually rightthat these ridiculous laws are needed to sustain the copyright monopoly. General-purpose networked computers, free and anonymous speech, and sustained civil liberties make it impossible to maintain this distribution monopoly of digitizable information. As technical progress can’t be legislated against, basic civil liberties would have to go to maintain the crumbling monopoly. And these are the laws we’re seeing on the table.

There comes a tipping point when somebody says that this entire system of cultural monopolies is absurd. A tipping point where the part before the “but” is unceremoniously and collectively dropped, the part that didn’t count anyway. A tipping point where everybody just stops pretending to support it. I think it is time to create that point on the history line.

Falkvinge here recognizes that if you support copyright, you should support SOPA. And conversely–if you oppose SOPA, you should oppose copyright. Copyright is the problem, people.

We are at a moment in history where people who have absorbed the idea of copyright, but who are not ideologically committed to it, have seen that it conflicts with more deeply held values: freedom of expression, commerce, digital life, the Internet. They are seeking for a framework, a way to coherently express what they sense is wrong with escalated copyright enforcement. We need to let them know: the problem is copyright itself. If you have copyright of course you want to enforce it. All the problems we see are merely symptoms of the copyright mentality.

We must press our fleeting advantage to let our half-hearted allies know that their intuitions are right: censorship and SOPA and state control of private property and SOPA are wrong. And this means copyright, which is the engine behind all these things, is wrong, and must fall, or at least be radically scaled back, not strengthened.

The argument against patent and copyright is not a socialist or liberal one. It is in fact rooted in respect for private property rights, capitalism, the free market, and competition. A coherent understanding of private property and free markets reveals that copyright is an anti-competitive grant of state power for purpose of censorship of favoritism, that can only seek to undermine private property rights and empower the police state–as we are seeing now.

For those interested in understanding the free market case against intellectual property, or for informing our anti-SOPA brethren, I recommend the resources listed at the end of this post.

And remind them that the battle is far from over. They opposed SOPA and PIPA, but where were they when the 1998 Digital Millennium Copyright Act (DMCA) was enacted, which has led to so much persecution and harm to the Internet? Where were they when George Bush signed the PRO-IP Act in 2008, which was instrumental in the FBI raids in New Zealand on the Megauploads principals, a day after the alleged SOPA blackout protest victories? And what about the Golan decision, released the day of the SOPA blackouts, authorizing Congress to re-copyright works long in the public domain? What about the one year federal prison sentence handed down to a man for uploading a copy of the Wolverine movie? What about the British student faced with extradition to the US for having the wrong links on his website? Where were they when President Obama signed ACTA (unconstitutionally, without Senate ratification), a global internet treaty even worse in some ways than SOPA? Right now nations are negotiating in secret the TPP (Trans-Pacific Partnership), an “agreement that the entertainment industry is betting on to get SOPA-like laws introduced around the globe.”

In other words, the dangers of SOPA are already here.⁷ This is because of copyright.

The problem is that all the people opposing SOPA undercut their opposition by acknowledging the importance of copyright and IP, by condemning piracy. It is admirable that they are taking the ride side of the chasm caused by their cognitive dissonance, but dissonance it is. If you support copyright, you oppose piracy, and you support the state’s existence and its attempts to enforce these “property rights.” You cannot have both copyright, and Internet freedom/freedom of speech. The threat here to property rights, to individual rights, to Internet freedom and freedom of speech and expression and the press comes from copyright itself. We must strike at the root. SOPA is just a symptom of the disease. The disease is copyright. Everyone is trying to treat the symptom–enforcement efforts like SOPA–with half-hearted treatments like labeling the response “disproportionate” or going “too far.” This is like trying to treat a brain tumor by taking Tylenol–sorry, acetaminophen–in response to the headaches caused by the tumor. All opponents of SOPA and censorship, all denizens of the web and proponents of freedom, must oppose copyright itself (and patent too).

Those libertarians⁸ and others who oppose SOPA and who are for copyright reform, but who are not for copyright abolition, should realize that a modest, fair, efficient, “reasonable” or “sensible” copyright system is completely impossible. Since the dawn of copyright its scope, length, penalties and enforcement have only increased, because of the relentless pressure by special interest factions like Disney, the RIAA, the MPAA, and other content providers and entrenched interests. As we can see with the pressure to adopt SOPA, PIPA, PRO-IP, DMCA, Berne, WIPO, TRIPS, COICA, Sonny Bono/Mickey Mouse Copyright Term Extension Act, ACTA, the TPP, and other measures (see The Mountain of IP Legislation), the Big Content interests are relentless and will not stop pressuring Congress and other legislatures to expand the war on information sharing and the Internet. Even if we had a less noxious copyright system–say, one with 10 year terms and less draconian penalties and enforcement–it would soon metastasize into what we have now, just as it has done (originally 14 years, not it is over 100). So a modest, “reasonable” copyright system is really off the table. The question that SOPA opponents have to ask themselves is: would you rather have today’s copyright system, with its draconian terms and penalties and continual pressure to expand and internationalize it, or no copyright at all? Only one of these choices is compatible with opposition to SOPA and to censorship. The only way to stop SOPA type provisions and to maintain Internet freedom, is to get rid of today’s copyright system.

Update: See Rick Falvinge’s proposals for copyright reform (most of which I agree with) in It’s Time To Go On The Offensive For Freedom Of Speech; my own proposals for copyright reform may be found in How to Improve Patent, Copyright, and Trademark Law.

Anti-copyright Resources

Shorter/introductory works:

• Kinsella, “The Case Against IP: A Concise Guide“
• Sheldon Richman, “Patent Nonsense“
• Jacob H. Huebert, “The Fight against Intellectual Property“
• Kinsella, “Intellectual Property and Libertarianism”

For more in-depth treatment, see these two books:

• Kinsella, Against Intellectual Property
• Boldrin & Levine, Against Intellectual Monopoly

For video or audio speeches or presentations:

• “Why Intellectual Property is not Genuine Property,” 3^rd Adam Smith Forum, Moscow, Russia (Nov. 12, 2011)
• “How Intellectual Property Hampers Capitalism,” Mises Institute Supporters’ Summit 2010:
• “Rethinking Intellectual Property: History, Theory, and Economics,” Mises Academy (audio and slides)
• “Libertarian Legal Theory: Property, Conflict, and Society,” Mises Academy  (audio and slides) (lecture 5)
• “Intellectual Property and Libertarianism,” speech presented at Mises University 2009 (audio; video)

Further material is available at the C4SIF Resources page and my site.

Update: A version of this was published at Whiskey and Gunpowder by Gary Gibson. And in a private email, which is posted here, Gibson adds prefatory remarks and an afterword, which I include below:

Gary Gibson, Minneapolis, Minnesota…

The Internet recently rallied against copyright monopolists and their paid-for lawmakers. The twin monstrosities of SOPA (Stop Online Piracy Act) and PIPA (PROTECT Intellectual Property Act) were forced back into their caves, thanks to the Internet blackout protest on Jan. 18, 2012 (Black Wednesday).

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But here there still be monsters. Before another day had passed, the FBI and DOJ made a show of intellectual property force under existing law (specifically the PRO-IP Act signed by Bush in 2008). They shut down the popular site Megaupload and jailed its principals, who happen to be non-U.S. persons not living in the U.S.

On Black Wednesday itself, the Supreme Court handed down a decision in Golan v. Holder that authorized Congress to re-copyright works that had long been in the public domain.

Then, last week, Poland joined with seven other nations — including the U.S., Japan and Canada — by signing ACTA (Anti-Counterfeiting Trade Agreement), the international trade agreement that criminalizes intellectual property theft across borders. The U.S. signed in 2010 when the negotiators termed ACTA an “executive agreement” instead of a “treaty”…because that allowed them to skip merrily around the Senate ratification that would have been required for a treaty.

As Timothy B. Lee explains on the Ars Technica site:

“If ACTA becomes a binding part of international law, it will create a precedent for future treaties that avoid basic principles of transparency and democratic accountability.

“More generally, the treaty continues the one-way ratchet toward ever-stronger copyright protections. ACTA establishes a new, higher minimum of copyright protections and enforcement that countries must provide, but it doesn’t require countries to preserve mechanisms like fair use and intermediary immunity that protect intellectual freedom.

“If Congress ever decides that IP rights have swung too far in one direction, it can always re-balance them by changing the law, right? Not exactly. International agreements like ACTA bind the hands of legislators unless the U.S. is willing to withdraw from them first.

“That’s why Rep. Darrell Issa (R-Calif.) last week called ACTA ‘more dangerous than SOPA.’ He added, ‘It’s not coming to me for a vote. It purports that it does not change existing laws. But once implemented, it creates a whole new enforcement system and will virtually tie the hands of Congress to undo it.’

“Unfortunately, these arguments are hard to explain to the general public. So too many ACTA opponents are, perhaps unknowingly, attacking ACTA for provisions that aren’t in the treaty. We’re not going to shed too many tears if this misinformation helps to kill a bad treaty, but we’d rather win the debate honestly — and prepare people for the upcoming ACTA sequel.”

Hmm. We agree that the poor treaty (or executive agreement for those U.S. presidents who can’t be bothered with Senate ratification) ought not be maligned for what it doesn’t contain. Especially when the wretched thing is detestable for what it really does contain…and for what it represents.

What the Internet has forced us all to confront is this: Free expression and the sharing of information that drives progress are not compatible with the notion — and state enforcement — of intellectual property. The cognitive dissonance is wide and growing between defense of intellectual property and the defense of liberty and acceleration of progress.

In today’s feature article, Stephan Kinsella explains more and, in doing so, throws down the gauntlet against the defenders of IP.

 

[Kinsella article.]

 

This is bound to generate some discussion and argument (Oh, our aching inbox! ggibsonagora@gmail.com). Heck, as quite a few of our Whiskey Shooters have noticed and emailed us about, there’s a little copyright warning at the bottom of these very missives and everything Agora Financial publishes.

This is still fairly new territory we’re exploring. A couple of years ago, we were far more in the Ayn Rand/Objectivist camp when it came to intellectual property (though not as far as the entertainingly pro-IP libertarian Andrew Joseph Galambos, who reportedly changed his name from Joseph Andrew Galambos so as not to infringe on his father’s claim to the specific name and who dropped a nickel in a box every time he used the word “liberty” to pay the estate of the reputed coiner of the word, Thomas Paine). It’s only recently that our friend Jeffrey Tucker got us thinking — and rethinking — the issue.

There are a couple of ways to approach it. We’ll undoubtedly have cause to explore them all in future issues (like Stephan points out, there are too many state-backed monopolists with too much money on the line for these kinds of legislation to go away), but here’s one way of thinking about it that we really like…

Property rights are the natural way to deal with scarcity in a world of scarce physical resources. Without property rights — based in first occupancy, not labor or use of material — ownership reverts to a temporary condition determined by might. Property rights aren’t natural in the sense that gravity is, and not as fundamental, but very nearly so, in the context of human existence. They are as natural, as essential to peaceful co-existence as your right not to be beaten, killed and possibly eaten by your stronger neighbor.

Ideas — even complex ones — are nonscarce, unlike physical property. They are literally infinitely reproducible without damaging the original in any way or depriving the owner of its use. Yes, potential income is damaged in the absence of intellectual property monopoly enforcement, but that could be said about a great many things that aren’t protected by this notion of intellectual property. It takes some serious mental contortion and far-reaching legislation to make ideas and thought patterns scarce. This is what SOPA, PIPA, ACTA and all the rest are making us all realize.

When you see how far the state has to go to enforce monopoly use on nonscarce things…when you see how this monopoly enforcement really hampers progress and restricts the way people use their own property, as it does with these threats to a free Internet (people are now actually afraid to send links to public websites in private emails)…you have to start to wonder at the soundness of the premise.

The arguments for intellectual property strike us as about as sound as arguments for a flexible state-run currency…or for military adventurism…or for gun control…or for prohibition. That is to say, they are fundamentally unsound in that they rely on the force of the state to interfere with the natural forces of the market…with all the distortions you’d expect, along with a continual growth in state power to wage effectively.

At least that’s how we see it here in the Whiskey editorial room. We suspect the world is waking up to this fact as this unsound, indefensible idea gums up the engine of the digital world.

The only way to defend intellectual property in this digital age is for the states of the world led by the U.S. to keep on pushing this invasive, punitive legislation.

We don’t think that’s such a good idea. The entire world that benefits from a free Internet seems to agree, even if most of that world holds onto a belief in intellectual property.

We’re curious to see how this will play out. We suspect strongly that progress will win. Eventually. In fact, we’re willing to put our money where our big mouth is on that one. Those who bet on progress tend to win. Those who bet early win the biggest.

To be an early better — and to be ready to multiply your wealth when the innovation curve goes vertical – just click here.

Regards,

Gary Gibson
Managing editor, Whiskey & Gunpowder
ggibsonagora@gmail.com

Endnotes

1. See Tucker: Protesting Government Digitally.
2. See, e.g., Kevin Carson: So What if SOPA Passes?
3. Typical confusion, usually spread by the IP proponents. Copyright infringement has nothing to do with plagiarism. Plagiarizing Plato is just stupid, not copyright infringement (unless Congress yanks it out of the public domain); and selling or obtaining a “pirated” copy of Mission Impossible 3 is not plagiarism.
4. How does the fact that someone has copied your writing show that “IP is a precious thing”? The “for example” is bad writing, sloppy thinking, and does not illustrate or support his contentions at all.
5. E.g., see Cato Institute Digs Into MPAA’s Own Research To Show That SOPA Wouldn’t Save A Single Net Job. See also [citation needed] from SOPA, PROTECT IP Advocates, Cato Daily Podcast (Jan. 18, 2012), featuring Julian Sanchez. This is a good interview even though Sanchez seems to concede that piracy is a problem and a “criminal” activity.
6. See my post Copyright is Unconstitutional.
7. See also TUAW on SOPA and PIPA: What they are and why we’re against them; Clay Shirky: Why SOPA’s Not Going Away.
8. Confused Reason writer Cathy Young Anti-SOPA but still pro-copyright.

Last night I appeared for two hours on FreeTalkLive (1-22-12 show), with hosts Mark Edge and Stephanie. We discussed intellectual property and SOPA. (Audio)

Just a couple days ago the New York City council voted to ban the practice by sanitation workers to sticker the window of vehicles that were violating the alternate-side street cleaning rules. Whilst the vehicle’s owner would still receive a parking violation fine, they are no longer allowed to punish drivers by defacing their vehicles with the hard-to-remove stickers. While I find the ban agreeable, I have a bone to pick with the general legislative approach.

One of the problems with positive law is that the mindset it encourages is antithetical to what should otherwise be a presumptive prohibition of aggression and the security of both property and personal liberties. Unlike the “negative” rights of common law, the legislative process of positive law will all too often err and enshrine legal principles that are unjust. This is not to say that legislators do not get it right sometimes– for example laws that prohibit murder, theft and fraud are all [potentially] perfectly just laws.

With a positive law mindset, actions that are not yet defined in the statutes lie in a grey area neither prohibited nor permitted “under the law”.  And later, if ever, when the statutes are codified, the result could be in having laws that don’t prohibit or permit enough, or in fact laws that prohibit or permit too much.  This is a problem inherent to a process that tries to encapsulate the entire range of possible actions and to explicitly codify them into the written law.

The presumptions now change- anything not explicitly forbidden is arguably permissible. Actions which are now prohibited lie beyond the reach of justice if they were carried out before the law was passed under the legal principle ex post facto. Of course it doesn’t necessarily have to be this way– laws that forbids theft and injury could already be understood to include all forms of theft, damage and injury without the codification of specific actions, i.e. “killing with a knife in the right hand using a stabbing motion”. What the positivist mindset encourages is the tendency to look at the codified word as the source of justice, so that one could then hair-split it so that the actual action is not specified and thereby not prohibited.

That said, property defacement should be considered a forbidden action (regardless of the actual codified law) and therefore there was no actual need for a specific law to ban the stickering practice. Instead the government could have enforced the already existing laws against property defacement to stop this punitive, vindictive crime.