The Absurdity of Intellectual “Property”

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This is a response to Kyle Scott’s essay, published in Liberty on August 16.

Kyle Scott’s case for copyright is interesting, and he should be commended for making it so clearly and intelligently. For him, as for many other libertarians, what people write is their own property, like any other kind of property, and they have a natural right to keep it. Government is merely the protector, not the source of their right. All this can be deduced from the natural rights theory most importantly exemplified by John Locke’s Second Treatise of Civil Government.

Unfortunately, so concerned is Mr. Scott with his line of deductive reasoning, so clear, so forcible, so all-sufficient, that he never notices what a strange kind of property he’s talking about. Copyright is property that stops and starts whenever the government starts or stops it. A few decades ago, it lasted for 28 years, with renewal for another 28 years, if you mixed your labor with the thing a second time, by filling out a form asking for renewal. Now it continues for 70 years after your death or, in the case of “work for hire” — work performed, for instance, in the employ of the Disney Corporation, which hired you to mix your labor on its account — for a whopping 90 years after the original publication of whatever you wrote or otherwise created.

Copyright is an invention of government, and it has fluctuated at the arbitrary whim of government.

I have no doubt that many other alterations in the lifetime of this weirdly fluctuating property will occur, as congressmen receive yet more campaign funds from yet more wealthy holders of copyright. As things stand today, however, the heirs of a 20-year-old who writes something, anything, today, and survives to the age of 80, can manifest themselves in the year 2144, demanding that you get their permission to republish this something, anything, that was produced so long ago by so callow a youth. And if the heirs are not around, in the sense of being visible, you will have to find them, or show that you tried. Then, miracle of miracles, in the year 2145, the troublesome property will vanish. The copyright will have expired, a mere 70 years after its author’s expiration, and you will be free to publish it a thousand times over, if you want.

Now really, does this look like property? Do farms and houses vanish 70 years after the deaths of their creators, unless some government action resuscitates them?

Historically, copyright is an invention of government, and it has fluctuated at the arbitrary whim of government. Mr. Scott would doubtless argue that this has nothing to do with the basic issue, which is one of individual right, right eventually recognized and protected, however imperfectly, by government. He might carry his reasoning to the obvious, though absurd, extreme of insisting that anything I write and perhaps toss into the street should be guaranteed to me and my heirs forever — that the heirs of Sophocles and King Solomon, no doubt very numerous by now, should be tracked down and reimbursed for every republication of these authors’ works. Oh no, no need for consultation of Athenian or Israelite statutes of inheritance, which knew nothing of copyright. Principle alone will guide us.

But in truth, copyrighted “property” is no property at all. The assumption that it is property is fraught with as many evils as St. Paul attributed to the love of money.

Everyone has a right to own a house, to sell it, or to pass it to his heirs. But the house doesn’t vanish 70 years after his death, or whenever Congress passes another law. Nor, to get closer to the root of the problem, is the house an abstract title to the legal authority to reproduce a house, the ownership of which title can require expert knowledge to identify after a fairly short time. No, there is the house, at 400 S. Main Street, and there are the people inhabiting the house or paying rent on it to a readily identifiable owner. A house is completely different from the reproduction of a house — or, still more abstractly, the right to reproduce it. Your property right in your house is in no way diminished by my building a house that looks exactly like it. Furthermore, you can’t just build a house and move away and abandon it, and expect other people to run and find you and pay you money for the right to live in it — much less the right to build a house in Dubuque or Delphi that’s exactly like that house. No, other people are eventually going to mix their labor with your house — use it, maintain it, claim it for their own. Even in the most rights-conscious communities, if you keep leaving your grandfather’s gold watch on the sidewalk, someone else is going to pick it up, wind it, clean it, and appropriate it, and no jury will convict him for doing so. Nor should it, all cookie-cutter libertarian theory to the contrary.

The vast majority of copyrights are of no value at all, and honoring them constitutes an enormous tax on productive people.

Now, a copyright is not like a house, and it is not like a gold watch. It is nothing so real as those things. In Mr. Scott’s conception, and that of the United States government, it is an absolute right to keep other people from copying something, for the sole reason that you produced it. You could say the same thing about — pardon my taste for low imagery — your garbage, or the stuff you put in your toilet. Copyright, in this conception, is an absolute guarantee that no one can copy your words, even if you abandoned them, even if you sold somebody the paper they were written on and walked away and didn’t bother to leave your address. Even if you gave the paper away. Even if you left it lying in the gutter. Even if it stayed in the gutter, or in the moldering archives of a vanity press, for seventy years after your death.

Now, if I sold you a house by claiming that Frank Lloyd Wright had built it, and he didn’t build it, but I built it myself, you could sue me for fraud — but the Wright estate could not. I had every right to build and sell the house, even if it looked the same as one of Wright’s houses; I just didn’t have the right to claim that he built it and charge you more accordingly. But if I sold you a laundry list, claiming that Wright had written it, and he did write it, and you reproduced it, only without the permission of his estate, the estate should be able to sue you successfully, according to the argument of Mr. Scott and many other libertarians. What’s the difference? It isn’t a difference of natural right, that’s for sure; it’s a difference of political enactments that have become so naturalized in libertarian thought that rationalizations are found for them.

It never occurs to dogmatists of copyright that valuable works could be protected by invoking laws against fraud. More important, it never occurs to them that the vast majority of copyrights are of no value at all, and that honoring them constitutes an enormous tax on productive people. I know scholars who spend much of their lives trying to trace the copyright owners of works that are almost 100 years old, works that are of no value except to the hapless researchers and a handful of readers. They are paying a pointless tax to a ridiculous law, a law that Mr. Scott would presumably make still more ridiculous by extending it to eternity.

It isn’t a difference of natural right; it’s a difference of political enactments that have become so naturalized in libertarian thought that rationalizations are found for them.

If labor has anything to do with the creation of property — which it doesn’t, contrary to Mr. Scott’s faith in Lockean dogmas, according to which I can’t pick up a kitten in the street without asking who mixed his labor with the land that sustained the kitten’s progenitors, all the way back to Noah — there are a great many more researchers and readers who have a more substantial property right to the stuff they research and read than the authors who once excreted it. If you don’t believe that, try mixing your labor with John Locke’s prose.

Mr. Scott is patently an intelligent person, yet his claims for copyright are patently absurd. This is an observation that could be made in respect to many radical libertarian arguments, particularly those whose results turn out to be, rather ironically, highly conservative. By Scott’s logic, high schools shouldn’t just be teaching Shakespeare; they should be supporting an eternal Shakespeare Trust, providing dividends for his millions of heirs, any one of whom could veto republication of his works, as a matter of right.

This prompts the question: under what circumstances are intelligent persons most likely to make absurd statements, without realizing their absurdity? Answer: When they are in love. And so it is: Mr. Scott — again, like too many other libertarians — is in love with an ideology and cannot see the absurdity to which his supposedly radical position leads him: the absurdity of endorsing, on the ground of individual rights, a massive governmental creation and subsidization of crony “property.”




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Comments

Allan Fifield

"...they should be supporting an eternal Shakespeare Trust, providing dividends for his millions of heirs, any one of whom could veto republication of his works, as a matter of right."

Millions of heirs is not likely. Shakespeare's legitimate line came to an end with death of his grand-daughter Elizabeth Barnard.

Terry Hulsey

Mr. Hunter,

You haven't been reading very much on this subject if you maintain that those who support copyright are the "dogmatists." Dogmatism is the hallmark of those on the current anti-IP bandwagon.

Also, I don't know what you're talking about when you assert a knowledge of "scholars who spend much of their lives trying to trace the copyright owners." This is absurd. Scholarly citation does not require a copyright.

All of the anti-IP dogmatists seem to be blind to an implicit collectivism in their reasoning. That is, it's none of your [fill in the epithet] business what I choose to do with my (in this case, intellectual) property. If I choose to try to make money by refusing a Creative Commons copyright (a typically failing strategy, I think most would agree), that's my business.

But let's apply your implicit assumption generally. You know I think you're wasting a lot of good space for growing tomatoes in your back yard. I love fresh broiled tomatoes, yes, but it's not that I personally dislike your misapplication of yard space, you understand -- I'm a libertarian. It's just that your ignorant behavior is not productive. Ah, broiled with butter, salt, pepper, and garlic, with a crust of parmesan and bread crumbs -- excuse me, I'm thinking of the economic loss, you understand. I'm a libertarian. A consistent reasoner, you understand. And, yes, we're coming over with the tiller and tomato seedlings tomorrow.

Russell Hasan

Dear Mr. Hunter,
I have never spoken to you, yet I owe you a huge debt, for generously reviewing my two books Golden Rule Libertarianism and The Apple of Knowledge for Liberty earlier this year. I thank you for that. Despite this, you are dead wrong on this issue. I hope you will consider the following comments, which are intended to foster a civil, healthy debate.

First, as a lawyer, I can tell you that you do not understand the Copyright Act or American copyright laws. It is basic copyright law that ideas and facts cannot be copyrighted. The Copyright Act specifically protects physical embodiments of ideas, not ideas themselves. The result is the legal doctrine known as the "idea-expression dichotomy." So, yes, an idea is not like a house. But a book is like a house. It can be sold, and it can disintegrate, and it can be damaged or destroyed, and it can be stolen, but the author's property interest in it is a copyright interest.

Second, the duration that copyright lasts has changed a lot, largely because of Disney's lobby and their fear of Mickey Mouse passing into the public domain. Yes, it keeps getting longer. But the law that protects tangible physical property also frequently changes. At the dawn of the internet, electronic signatures were not valid on contracts for the sale of physical goods. Now, under the the law of contracts, electronic signatures are valid. If you sold a box of flowers to someone over the internet, and they signed the contract for sale electronically, the law as to whether the sale was valid changed. Does that mean that flowers do not physically exist? Or that property rights in flowers, for purposes of sales, are not real?
Honestly, the copyright you attack is a straw man, which does not look like real copyrights in the USA.

Lastly, I leave you with a very simple question. As you and I both contribute to Liberty Magazine on a regular basis, where would Liberty be without copyrights? If someone could simply copy every article written on Liberty, print it in a book, or publish it in an e-book or a competing website, if they did a good job and their copy "went viral," they could sell one million copies and make a million dollars. And not one penny would go to Liberty, or to me for my writing and to you for yours (although, as you know, you and I write for Liberty on account of our love of it, and not for money).

Would that result be fair? If not, what besides copyright could stop it? It would not be fraud if the copycat fully disclosed that the book was unauthorized and opposed by Liberty. Yet such disclosure might not prevent massive sales.

I hope that, coming from me as a lawyer, this broadens your point of view. And, to conclude, I wrote an essay defending copyright law, which was published by the Federalist Society, which I suggest you read, at: http://www.fed-soc.org/publications/detail/winning-the-copyright-war-copyrights-merger-doctrine-and-natural-rights-theory-as-solutions-to-the-problem-of-reconciling-copyright-and-free-speech

Wayland Hunter

Thank you for your kind words. I always enjoy your writing, and I’m sure I will continue to enjoy it despite our disagreements about copyright, or anything else.

I think you’re really making my case for me when you compare a house to a book: “A book is like a house. It can be sold, and it can disintegrate, and it can be damaged or destroyed, and it can be stolen. . . .” My argument is simply that a book should be treated like a house or any other kind of property. And it would be, if there were no imaginary property called copyright.
What is copyrighted is not the book, the physical object I hold in my hand. It is the right to copy the arrangements of words or various other distinctive features of the book. The oddity of copyright “property” is shown by the fact that if you sell me a house I can destroy it, transfer it to others, make my own additions, and of course copy it by building another house exactly like it, without ever returning to you to ask your permission. If, on the other hand, you sell me a book you’ve written, I own the physical object and can destroy it, leave it in the street, give it others, etc., but by government fiat you continue to own the right to reproduce it or sell it in altered form, unless you also sell me that separable part of the property called copyright. That’s why it’s called copyright: it’s a right to copy the “physical objects” known as words, not a right to own those physical objects as collected in the particular book I hold in my hand.

Unlike many other libertarians (not including you), I don’t believe that we can make morality and practicality coincide perfectly. But I would point out that the vast majority of copyrights, as currently construed by government, are worthless in a financial sense. Believe it or not, only a small percentage of the people who write books or publish them make money on any individual enterprise of writing or publishing. Copyright is not necessary to encourage publishers to reprint works published before 1923, so long as they think someone will be interested in them; and copyright is not necessary to encourage the vast majority of contemporary writers to publish. Almost all publication is a one-time thing, and you are free to ask a publisher if this is because of the protection of copyright or because interest in a book is normally exhausted by the first print run, and there are costs to setting up any new publication, including online publication.

Until about a hundred years ago, copyright was virtually unenforceable in practical terms, yet miraculously, authors continued to publish. They resorted to various means to get money, when they insisted on making money, which most did not, any more than they do today. They published in segments. They got initial publishers to pay them up front, not in royalties payable in the future. When J.R.R. Tolkien neglected to secure American copyright for his work, and an American company printed it in violation of his wishes, his British company continued to publish and distribute in America. He made some minor additions to the work that enhanced the success of that publication. He asked people not to buy his works as published by the American company. Soon the company desisted from publication of his work. Another means of dealing with what are now regarded as copyright violations is to sue people for fraud if they publish a corrupted version of your work and advertise it as your own work. And in this day of the internet, as we all know, audiences can often be made to pay for access to a favored site.

Those are just suggestions. But unquestionably, a copyright is not like a house or any other form of property. A book is like a house, but the copyright to a book is not like a house.

Visitor

What is absurd is the fact that Mr. Hunter chooses to attack copyright rather than patent.

To wit: Personally I have little problem with patent, copyright or trademark, however, I can see the point of those who question patent with the following reasoning -- what gives others the right to establish a government in my geographical area, and then prohibit me from inventing, making and SELLING a certain widget just because I wasn't the first person to think of it. This seems to be an initiation of force.

I would be interested in some articulate person answering THAT complaint to my satisfaction. However, the complaint is not valid for copyrights or trademarks.

Hunter is right that the government keeps screwing with the copyright laws be extending them -- that is not what the founders had in mind. They are supposed to be for limited times.

As an aside, I will mention that I have been thinking that COMPUTER SOFTWARE should have been placed under the PATENT law, rather than under the COPYRIGHT law, which is seems to now be under. Think about it.

Dave S.

Another interesting article on this subject is Roderick T. Long's 1995 essay: "The Libertarian Case Against Intellectual Property Rights" at http://freenation.org/a/f31l1.html

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