Don’t call copyright a government-granted monopoly.

When most people discuss or debate copyright’s value in the contemporary market, they talk about the utility of the law—typically arguing the efficacy or rationale of specific contours like term length or enforcement—while generally overlooking the philosophical principles that led to the IP clause being written into the U.S. Constitution in the first place.  This is of course not uncommon with any number of issues.  A particular constituency or individual citizen with a political agenda is apt to read the one sentence or phrase in our elegantly concise Constitution and interpret it as he sees fit.  For instance, the Framers will often allude briefly to a rationale with a dependent clause like “In order to maintain a well-regulated militia …” which is then interpreted as either a still-relevant or now-obsolete explanation for the 2nd Amendment, depending on whether the interpreter supports or refutes gun rights.

Similarly, the conditional expression setting up the IP clause, “The Congress shall have the power to promote the progress of Science and useful Arts …” has been the source of heated argument that copyright’s utility is clearly in the service of society; and this premise then becomes the basis for describing copyright as a “rent”,  “tax”, or “monopoly”, granted somewhat reluctantly by the government to individual authors (and inventors) in order to extract the fruits of their labor for the greater good.

In fact, a few years ago, Mike Masnick riled up his readers at Techdirt over the fact that Register of Copyrights Maria Pallante had the nerve to suggest that copyright serves the author first and society second.  Oh, the screaming and the gnashing of teeth that ensued.  But, of course, from a utilitarian perspective, Pallante was making a perfectly innocuous statement of fact about the only way in which the order of operations can be applied.  Clearly, if the author does not first create, society is never served at all.  But that’s not what I want to talk about.

I recently finished a new book, written primarily for legal scholars, by Randolph J. May and Seth L. Cooper of the Free State Foundation, called The Constitutional Foundations of Intellectual Property:  A Natural Rights Perspective. The book makes a case for the philosophical underpinnings of intellectual property in the U.S. Constitution, beginning with the Enlightenment influences on the Framers and concluding with those principles ultimately being expressed in the post-Civil War amendments ending slavery and affirming the rights of citizens regardless of their state of residence.

Terry Hart’s latest post on Copyhype is a review of this book, in which he rightly points out that the Natural Rights foundation for intellectual property has been largely substituted by a purely utilitarian discussion among most academics critical of contemporary copyright.  And these murmurings in the hallowed halls of law colleges have trickled down into the blogosphere where they have coalesced around the meme that copyright is a government-granted monopoly.  But to ignore the philosophical precedent for intellectual property—regardless of the necessity to debate the utilitarian contours of the laws themselves—is a tragically flawed mistake for any citizen to make, no matter where he or she sits on the political spectrum.  And this is because the intellectual property right is really just one branch on a rather important philosophical tree to which all our favorite civil rights are also attached.

As mentioned, May and Cooper’s book is written by academics for academics, though it is entirely accessible to any reader, if constitutional scholarship on intellectual property is your cup of post-revolutionary tea, so to speak. But in simple terms, the first part of the book supports the view that the appearance of the intellectual property clause in Article 1, Section 8, Paragraph 8 of our Constitution is an expression of the principles articulated primarily by English philosopher John Locke in his Two Treatises on Government. First published in 1689/90—exactly a century before the first U.S. Copyright Act—these treatises imagine the individual in a hypothetical State of Nature in order to then express what Locke sees as the purpose of entering into the social contract we call the state or government.  In the State of Nature (i.e. a condition in which the individual enjoys what we call Natural Rights), Locke argues that the individual has a “property in his own person” and that part of the purpose of government is the security of his property, which is more commonly known by Americans as the pursuit of Happiness.

Locke uses the word property in a much broader sense than we generally to use it today, which is to say that each of us has a property in our being—our bodies, our minds, and our faculties.  We still believe in this principle, of course, we just don’t generally use the word property to talk about it.  But from this Lockean notion of property comes the idea that if your hands and mind are yours, then what you produce with your hands and mind—whether it’s a harvest of wheat or a novel—is logically also yours.  Critics of intellectual property will often bypass Locke’s definition of the word property in order to draw contemporary attention to the logic that physical property like a car is fundamentally different from intellectual property like a copyright in a song.  This argument carries particular weight in the digital age when copies of intellectual works are now profoundly non-physical; but as May and Cooper point out, the differences between these types of property are appropriately reflected in the contours of the laws themselves—and remain amendable according to changes in market and social conditions—while the foundational principles for both types of property remain sound and relevant.

The Lockean notion of a property right in the fruits of one’s labor should not, in my opinion, ever be relinquished to the authority of the government as a privilege—which is what a monopoly technically is—rather than asserted and protected as an expression of our Natural Rights as individuals.  As May and Cooper demonstrate, both physical and intellectual property act to define and limit the role of government, which is entirely consistent with American constitutionalism, whereas fostering monopolies is anathema to those principles. Government’s mandate to protect both types of property, the authors argue, acts as a hedge against “centralized decision-making,” which is to say a society that is not composed of free-thinking individuals. There is no question that May and Cooper approach their argument for the foundation of IP from a libertarian/conservative perspective of limiting the power of government; and this is actually refreshing inasmuch as I have never quite understood those academics of the same political stripe, who have lately portrayed copyright as a government-granted privilege.  That seems to me like surrendering considerable ideological territory in a way that is inconsistent with the advocacy of limited government.

At the same time, for those of us who lean more politically left, I would add that I believe the fruits of one’s labor principle also acts to limit the power of capital, which is particularly relevant today when so many people are frustrated to the point of concluding that capitalism is only capable of producing wealth consolidation, a foundering middle class, and corporate control of government itself.  In the same way that I would advocate fixing capitalism rather than throwing out the proverbial baby with the bathwater, I would point out that the fruits of one’s labor concept—as it is specifically expressed through intellectual property—really implies a much larger social contract than the incentives of copyright and patent holders.

The idea that your labor is your own until you provide its fruits in fair trade to someone else is the basis of every hard-won labor and civil right—because these rights are often intertwined—over the worst abuses of either corporate owners or government agencies.  This is also consistent with the views of the Founders, who sought to foster neither an intrusive government nor a new nobility that would give rise to new forms of feudalism.  And because too little of the former provides opportunity for the latter, and vice versa, it is our fate to constantly seek to balance these opposing forces.  Hence, the fruits of labor right vested in every individual citizen acts as a balancing force against both extremes; and IP rights are merely one specific expression of this much larger principle.  Even free speech itself is an extension of this Lockean principle that the individual has a property in his person.

With 1% of the population owning more than 50% of the nation’s wealth; with direct assaults on labor rights in certain regions and economic sectors; with technologies threatening to devalue human work in various ways; and with extreme examples of certain corporate owners getting away with imposing their own morals on employees, this is a terrible time to be calling intellectual property a government granted monopoly.  I would never want to cede the logical conclusion of that argument, to suggest that every citizen’s right to the fruits of his or her labor is in any way a privilege, which may be argued away on the basis of apparent utility alone.  Ultimately, we’re talking about a human right that was forged in the crucible of a century and a half of English civil strife over religion and the divine right of kings.  It may be just a short sentence in the Constitution, but it has a long and bloody intellectual pedigree.

© 2015, David Newhoff. All rights reserved.

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  • This is a great refreshing read!

    I would like to add another comment regarding this idea that copyright is a government granted monopoly. A monopoly exists where there is one supplier and only one supplier for a certain good. It can also exist when a dominant supplier exhibits some form of anti competitive behavior that provides them unfair advantages over their competitors. In the late 1800’s monopolies like utilities and railroads had a field day. As sole providers of goods that people could hardly do with out they charged oppressive prices.

    Copyright critics charge that the creator of a song or movie is a monopolist because they have sole ownership of that work. But the first major problem with this concept is that for every song or movie out there, there is a plethora of other songs or movies that can act as a substitute for any particular song or movie. In the late 1800’s a farmer had no practical option to transport their produce besides the railroad. And in 1900 a homeowner had once choice of supplier to provide electricity to their residence. Those are monopolies. If a couple wants to listen to a romantic song to enhance their evening and Franks Sinatra’s album costs too much – there are thousands if not tens of thousands of other songs they can substitute with out any hardship. That is the farthest thing from a monopoly.

    Now if we could go with the copyright critics idea that a song or movie is a monopoly we have to consider what that means when we extend that same logic elsewhere. If I want a pair of Nike shoes with a Nike logo, I can only get that from Nike. If I wanted to buy a particular coffee blend made by Starbucks presented in a coffee cup with the Starbucks logo there is only one place I could buy that. Using the same logic that copyright critics use, these are examples of monopolies and the government should either mandate the sale prices of these goods – or step aside and offer no property rights protection when people take these goods without paying for them. The latter is the option copyright critics are promoting.

    The truth of the matter is that copyright is not a government granted monopoly, it is a government granted right of ownership similar to the ownership rights granted to nearly everyone else in our society.

    • I would edit your last sentence as “[…] it is a government protected right […]”

    • Thanks, nikokkola. You’ve hit one of the important nails on the head, which is that you cannot call a right that is automatically available to every citizen a monopoly. It is as wrong-headed as saying that, for instance, a woman who rejects an unwanted advance is asserting a “monopoly” over her person. No. We don’t want to go there. The natural right in her being comes from the same rationale that grants a natural right in her labor, and so on …

      And as far as business goes, the Framers were particularly leery of monopolies, which was one motivation for independence in the first place, and which Cooper and May discuss in their book. And you’re exactly right; a monopoly was what the railroad had before the Hepburn Act. Electric utilities were truly government-granted monopolies, and not without at least a rationale at the time. It was a deal the government made with private investors to actually electrify the country in the first place (not that this the only option).

      What is particularly interesting (or frustrating) is that much of the “new thought” defining IP as a monopoly either comes from, or is funded by, the Internet industry, which breeds market-based monopolies (or monopsonies) like crazy. And the owners of companies like Amazon, Google, and Uber demonstrate clearly that they have a monopolistic ethos in their approach to business. That’s why every time I hear or read someone who calls a songwriter or photographer a “monopolist” my head catches fire.

  • For some of its’ most vocal critics, copyright is simply viewed as a barrier to those who want to use the fruits of someone else’s labor to make their own juice.

  • The interesting thing is that the utilitarian justification for property “rights” is really just a new version of saying property rights are whatever the King (government) says they are, which makes their complaints that IP is arbitrary oxymoronic.

    • Intellectual property unquestionably has utilitarian purpose. And it’s reasonable that, most of the time, when discussing copyright or patent, we are talking about utility and specific aspects of either law as either being conducive or not to the promotion of progress, etc. It’s when the academics and pundits reclassify IP as a government-granted monopoly (i.e. that they are re-arguing its constitutional foundations) that they sever its link to a much larger philosophical principle. So, there are utilitarian rationales for IP rights, and the Framers address these; and one rationale was that granting limited exclusivity to authors and inventors would act as a hedge against monopolies. So go figure.

  • I’ve said before here that IP is no different from any other property right. If you treat copyright as a ‘monopoly’ granted by government then it follows that freehold land tenure is also a ‘monopoly’ right granted by government. These kids are ignorant as to the fact that language changes over time and usage of monopoly and privileges. Example from the Pennsylvania Charter of Privileges and the Georgia Constitution:

    THAT all Criminals shall have the same Privileges of Witnesses and Council as their Prosecutors.
    This is not intended to exclude any person from that inherent privilege of every freeman, the liberty to plead his own cause.

    do these seem to be something that the authors thought that the grantee was not morally entitled to? Indeed to the 17C constitutionalists ‘privileges’ were rights that arose from the Lockean Social Contract.

  • I’m really glad to hear this. I think I’ve said it before (for those legions of you out there who closely follow my political musings), but the anti-IP stance of the libertarian mainstream was the impetus for my final break with that ideology and the beginning of my, glacially slow, move slightly to the left. Copyright, etc., seems like the most market friendly concept in the world. But in a sad satire of their own ideology they rejected markets because there might be couple rules necessary in order for them to function. I often wonder what the libertarians would have said if the website in the late 90’s that decided to offer copyrighted material for free wasn’t owned by some whizzy kid in California but was a government run site by the NEA intended to “share more art with the public” or somesuch. Somehow then I think they might have been a bit more skeptical that giving away stuff for free was such a great idea for artists.

  • An annoyingly important consideration is “can you explain this in an elevator?”
    If protecting and encouraging authors in a utilitarian worldview boils down to “a temporary monopoly”, what does it boil down to in a natural-rights world?

    • A human or civil right.

    • How about in laymen terms?
      That dick-pic you just snapped… you aren’t allowed to delete it, it belongs to the collective, not you! oh, you’re NOT cool with that?

      ding, the door just closed… what do you want to talk about on the ride down?

    • Exactly right, David. I’ve tried for my entire career to come up with quick and easy explanations to enable anyone to understand copyrights. In particular people view the “grant”/registration of a Copyright/patent/trademark as a right of PERMISSION to reproduce / make / use / sell. Stating that it’s like a “government granted monopoly” on the difference / improvement is much more often understood. But as pointed out, it’s an analogy that can be over-thought.

  • Name another “human or civil right” that still exists 70 years AFTER the death of the human.

    • A perfectly valid question, and one Thomas Jefferson would probably high five you for asking. David Collier Brown asked for the elevator pitch in a natural-rights context, and that was the first answer that came to mind. Of course, IP doesn’t really fit in an elevator pitch. More to the point, though, I think May and Cooper would argue that the role of copyright terms is a matter of utility rather than foundational principles. Of course the fruit of the author’s labor lives after his death, and so the rights of his heirs to benefit from that labor is the rationale for why copyrights last beyond the life of the author at all. How long is too long (or not long enough) is a separate question.

    • To be fair, I was looking for the shortest description in part to see what wouldn’t work: your question “proofs the rule”, and exposes the maximum extent we can simplify it. Simplify any more and and we stop making sense.

    • Easy — in the sense of Locke, the home or business you inherit.

  • Your premise is undermined by your own writing. “The idea that your labor is your own until you provide its fruits in fair trade to someone else” is completely inconsistent with the notion of copyright protection. If you build an object (the fruits of your labor) and sell it to someone (fair trade) you get paid for it, and in return for that payment, ownership transfers to the person who bought it and it ceases to be yours, and everyone thinks this is fair. If you then want more money, you have to build another object.

    So how is it that you can say this with a straight face about a situation that could not be more different? Under the copyright system, if you produce a work of authorship, and you sell it to me, it’s not fully my property to do with as I choose, because there are things I’m forbidden to do with it, such as making my own copies and sell them. And if the fruit you created is popular enough, it can keep bringing in money throughout your life and even the livetimes of your children after you die, taking away the requirement to produce more fruits of your labors in order to continue to extend your income.

    From the philosophical perspective presented here, your “natural right” seems to be all about having your cake and eating it too, and with the way people have abused it so heavily, particularly over the last 40 years or so, it’s no wonder so many people are starting to find it fundamentally offensive.

    • Mason, you’re confusing the nearly 330-year-old principle that ultimately leads to both labor rights and copyrights with the mechanical distinctions between those two sets of rights. I understand if it seems like I might be conflating those things inappropriately, but I don’t think I am. I’m merely pointing out that it’s a bad idea to undermine the constitutional principles of copyright because those principles are the basis for a lot more than copyright.

      Regardless, the “fruits of labor” principle applies in both cases, though the utility and mechanics are different. If I go to work doing someone’s bookkeeping for eight hours (and God help them if I do), the transaction is very different than if someone buys a copy of a novel I’ve written, but the underlying premise of fruits of labor as property is the same. The antithesis is slavery or servitude, and it should be overlooked that the business model of many “disruptive” Internet companies is based on creating piecemeal work as Umair Haque describes in The Servitude Bubble.

      • Thing is, it’s very difficult to call something a “natural right” when it’s based entirely on an artificial invention. The ideas of the natural rights of mankind have been around for as long as civilization itself. People inherently understand that people have a right to life and to property, therefore Thou Shalt Not Kill and Thou Shalt Not Steal. But the concept that Thou Shalt Not Steal Thy Neighbor’s Idea is not just absent from the historical record, it’s completely contradicted by it.

        If you had an idea, you either kept it to yourself, as a secret, or you shared it. If you shared it, people would be likely to share it around further. If your idea was a story or a song, and it was good enough to become popular, people were likely to not only share it but embellish on it and add to it. This phenomenon is known as “culture,” and it’s the natural state of the social creature that is mankind.

        So the question, then, is what changed that led to the invention of this entirely unnatural “natural right”? The answer, of course, is the printing press. Once mass duplication of an idea, fixed on paper, became a reality, it opened up an entirely new paradigm. Over a period of about 2 and a half centuries, the concept of “authorship” slowly mutated from a special thing that scholars, bards and prophets did for reasons unrelated to any expectation of monetary compensation into a profession, one that anyone could try their hand at, like a laborer or a craftsman.

        The problem was, printing presses were expensive and rare pieces of high technology. Anyone could write, but not anyone could print, and so an ugly side of human nature began to rear its head: publishers began to exploit this fact by appropriating the millennia-old process of cultural dissemination, publishing works of authorship without establishing any agreement with the author to do so and without compensating the author for their work, even though societal norms had shifted to the point where such compensation was to be expected.

        In England, in order to put a stop to such abuse, the Statute of Anne was drafted, a law that vested in authors an artificial right to bring the publishers to heel, by giving them the right to control distribution of their work for the crucial first few years, before letting the natural culture-building process take its course as the work passed into the public domain. And it worked well, for a while at least.

        Of course, the ugly side of human nature continued to take its course as well, and slowly the abusive publishers began to corrupt the process and turn it inside out. Fun fact: it took about the same amount of time from the invention of the printing press to the point where publishers’ abuses of it had gotten so bad that they needed to invent copyright to fix it, as it did from the invention of copyright until the 1970s, when publishers managed to turn the entire system on its head.

        Today, copyright is used as a weapon by publishers to exploit not only authors, but the general public. People who have only heard of an idealized version of how it’s supposed to work talk about how copyright supports authors, but how often do authors own their own copyrights these days? Look at any book, movie, or music album, and the copyright notice will almost always state that the publisher owns the rights, which means that the author does not have the right to the fruit of their labors, not anymore. (The music industry is a shining example of just how bad this has gotten, with some artists being sued by their labels for copyright infringement for recording a song that’s too similar to their own earlier work!)

        Today, when the technology exists for authors to be their own publishers, it’s debatable as to whether the original rationale for copyright is even valid anymore, but it’s very difficult to say with a straight face that it was ever a “natural right” or that the current system protects the rights of authors, whatever they may be.

      • Mason, you said a fair bit about natural rights, the origin of the Statute of Anne, and contemporary copyright, all of which is a little off regarding the facts, but you’re begging a few thousand words in response. Ain’t nobody got time for that, so… Suffice to say authors do not by and large agree with your assertion that publishers only exploit copyrights to turn the entire system upside down. That’s a view consistently repeated by people outside the various industries and rarely echoed by people within them. And where you get the idea that book authors no longer own their copyrights is a mystery because they do. The rights may be transferred for a period of time to a publisher and then revert back; it really depends on a case-by-case basis. And while there will always be a shifting relationship between publishers (in the broadest sense) and authors that is either harmonious or antagonistic, without copyright there would be no relationship at all.

      • The general right of property is equally of recent invention. As I recall it was not that long ago in the history of mankind that property right extended any further than that of the King and a few of his henchmen. For most the ‘property’ that they held was limited to perhaps a cooking pot, a mattress, and if they were lucky the tools of their trade. In fact the time scale between Magna Carta (as a source for the protection of property) and the invention of the printing press is less than that between the printing press and the first copyright act.

      • John, you’re not looking nearly far enough back in history. There are plenty of good reasons why we call that period of time “the dark ages,” and this is one of them. But the concept formalized in the Bible as “Thou Shalt Not Steal” predates the Magna Carta by millennia, (not to mention predating the Law of Moses by a good long time as well,) and it would have been meaningless to forbid it–or to forbid coveting thy neighbor’s property, for that matter–if thy neighbor didn’t have property worth coveting and stealing.

      • Well best I can tell “Thou Shalt Not Steal” was written around the 8thC BCE but it may be as recent as the 3rdC BCE. Granted this is much earlier than Magna Carta, but shortly after “Thou Shalt Not Steal” and not coveting thy neighbor’s property there are stories dealing with the rape and pillage of people in Canaan. It would appear that property concepts were rather different then than they are now.

      • Ah yes, Mason… pining for the “good ‘ol days”…

        Back when you could own slaves and peasants, there was no copyright…

        You MUST be from Silicon Valley…

      • Uhh… what? Slaves and peasants and Silicon Valley? How does anything you just said have anything to do with anything else you just said, or with the topic of conversation for that matter? Or are you just printing random gibberish simply because you can?

        Not that it matters, but I’m not from Silicon Valley and I’ve never lived there.

    • And this is the point at which the ownership logic starts to fail, and the right to the fruits of ones work becomes more credible. I see the latter as consistent with Mr Newhoff’s “human right” argument.

      I’d suggest the “ownership” argument’s failure is one of the reasons people started calling it a grant of monopoly.

      But note I’m using the “elevator pitch” terms, which are so short as to be in great danger of being misread (;-))

      • On the subject of elevator pitches, even Thomas Jefferson referred to copyright as a “monopoly” when he expressed early concerns about including it in the Constitution. Much has been made of this by critics, but I suspect semantics play a role as well as other factors. Monopoly was and is a handy adjective to describe exclusive control in casual, or even semi-formal, discussion; but it fails if one wants to be more precise about what a monopoly really is. If every citizen is entitled to the same exclusivity, it really isn’t a monopoly.

    • Well I’m fine with letting you only listen to music at live gigs, to only watch films and TV at designated outlets, to only view images in galleries, and to only read books that are chained to shelves. But I think you’d find that world to be pretty stifling and boring. OTOH I can let you have CD/MP3 which you can listen to where ever you happen to be, a DVD which you can watch anytime/anyplace, images you can view at your pleasure, and books that you can read in an armchair in front of a fire. The proviso being that you can’t sell or make copies to distribute to others. You can take either solution.

  • David,

    Thank you for the article. While you are clearly addressing the question from a philosophical point of view, I think you have inadvertently set up a false dichotomy. Leaving aside any discussion about the word ‘monopoly’, I suggest that the reason some people adhere to the ‘government granted’ bit is that that is the de facto implementation of what you describe as a human right. You are looking back two hundred and thirty or so years; they are looking back roughly 40 years to the Copyright Act 1976.

    If a man has an inalienable right to the fruits of his labor (I’m English, but I’m prepared to meet you half way on the spelling issues) then how can it be that the government can arbitrarily curtail that right in order that, for instance, in certain circumstances not selected by the man, others can also benefit from his labor, due to the many exceptions such as use in education, quotation for criticism, or just plain old ‘fair use’. It is in these curtailments of the fundamental right that the ‘government granted’ faction finds its argument. Take the most basic aspect of pre-1976 copyright: it didn’t exist (other than in a comparatively weak commonlaw sense) unless the work had been duly registered with the Federal government and certain other formalities complied with. If that is not a government ‘grant’, I don’t know what is. If the contract enshrined in the Constitution is, as Maria Pallente described, author first, society second, these exceptions effectively put both interests on a twin track in a number of circumstances. Since the government actually gets to define the rules about where the boundaries to the individual’s rights are (much like in most other aspects of human rights, such as the right to life or free speech) I don’t think it is unreasonable to say that the government has granted at least part of what we understand by the term copyright. Try going to court to defend your copyright without once citing the Copyright Act, just using equity as the basis of your cause of action.

    I’ll leave my thoughts on ‘monopoly’ to another day, in order not to abuse the hospitaliy of your blog.

    Stimulating stuff, so thanks again.

    Andy Johnstone
    1709 Blog

    • In the UK we have a Right To Roam. Other countries have similar rights:

      This is a curtailment, in specific circumstances, on a fundamental right to exclude others from your property. Yet no one is saying that as a result land ownership is a Government ‘grant’. The fact, ignored by many freetards, is that all property rights are hedged around by Government as they trade off one set of interests against another set.

    • Andy, thank you for reading and for your observations. I love that this blog provokes thoughtful commentary, so it’s very much appreciated.

      I think you’re right that people are looking at copyright over the past 40 years, but I also think people are confusing the contours of law, which are always debatable and mutable, with the purpose of law and government, which should be viewed as more fundamental.

      As I said to David Collier Brown, I really believe semantics plays a big role in this discussion. The term government-granted monopoly it seems to me is often used as a multi-layered pejorative, not only negatively describing copyright but also government itself. This is relevant because negativity about government is particularly acute in the US among both the more extreme left and the more extreme right. And the question as to whether or not government is viewed as a permission-granting entity goes to the heart of what you’re saying. At least I think it does.


At the academic level, the government-granted-monopoly trope is unquestionably the work of the libertarian right, but I think it’s also a talking point that sounds good to the more extreme left, whose views stray all the way toward collectivism or anarchy — part of a percolating theme that technology might lead to stateless, global utopia. (On this matter, I am a devout cynic.) So, there’s an extent to which I believe the entire school of thought is inconsistent with what government in a free society actually is, and I see the rationale as exemplary of people losing touch with the classical liberalism that changed your government and shaped mine. That’s a whole discussion unto itself, but suffice to say I believe the entire phrase is quite loaded and, like so many debates in our politics, is untethered to any knowledge of history. Witness our armed ranchers in Oregon, who have imagined some “constitutional” rationale for their occupation of a federal wildlife reserve.

      The reason I mention all that is that this post is predicated on May and Cooper’s book, and in order to make a constitutional argument for intellectual property, the authors first ground the reader in the Lockean principles, which present a case for the individual’s membership in society (i.e under a government) in the first place. I happen to agree with Locke’s perspective and, therefore, do not see government as a separate entity from the people — at least philosophically. In casual discussion, of course, it’s easy to think of government as a separate body, particularly when one is angry at “it” for doing something stupid, which is frustratingly often. But in the context of understanding why intellectual property was included in the Constitution, it is just as important to refer to core (and frankly ideal) principles as it is when discussing why the Bill of Rights exist. And in that discussion, government should not be viewed as an entity which “grants” favors or permissions, but rather exists to protect the life, liberty, and property (in the Lockean sense) of individuals.

      How all that gets done, of course, is what manifests as the actual mechanism of law, which can either be wisely crafted or foolishly crafted, and will continue to be amended as we go along. But it’s my view that the contours of law should not undermine the core principle that government is not entitled to “grant”, but is instead charged with the responsibility to craft and enforce law that balances competing interests in a paradigm of universal human rights. That’s at best, of course. Naturally, it doesn’t always work because, well, humans.

      I think laws should be viewed as either consistent or inconsistent with the underlying principles of the purpose of government itself. If my neighbor assaults some member of my household with threats, the remedies available to me are not a favor my local government does for me; they are a mandate by society that my local government represent and protect my interests, which is one expression of the (again Lockean) social contract between me and the society to which I belong. The efficacy or impotency of those remedies will indicate the quality of the laws themselves but not change the nature of the larger social contract.

      Likewise, if I need to enforce a copyright, I don’t believe the government is “granting” me a favor but is instead protecting my interests within certain limitations. And simply because there are limitations, as you correctly reference in your comment, I don’t see that this changes the fundamental role of government. To the contrary, the fact that a copyright can be enforceable within the confines of limitations (e.g. free speech mandating certain fair uses) is precisely why we have government — to help shape and enforce those often-shifting boundaries among competing sets of rights.

      I hope I’ve come somewhere near responding to your comments and apologize that I failed to reflect your courtesy of remaining brief. But thanks for provoking further discussion. Meanwhile, I’ve begun checking out 1709 Blog. Good stuff!


  • “Today, when the technology exists for authors to be their own publishers, it’s debatable as to whether the original rationale for copyright is even valid anymore, but it’s very difficult to say with a straight face that it was ever a “natural right” or that the current system protects the rights of authors, whatever they may be.”

    How does it protect authors?
    Easy: someone self-publishes something. Copyright prevents people from pirating it.
    How is that hard to understand? Whether or not corporations use copyrights in lousy ways doesn’t mean that individual creators can’t benefit from them.

    • The idea that self-publishing obviates the need for copyright is promoted by people who I believe have not really thought through the issues. Just as a simple example, witness the freebooting of YouTube creators’ videos by Facebook.

      • …and what exactly are those creators able to do about it when they’re a few orders of magnitude short of the resources to match Facebook’s legal budget? How does copyright protect them in any way?

    • Seriously? When’s the last time you saw *anything* preventing people from pirating things? Copyright doesn’t prevent piracy; people copy things whether they’re permitted to by copyright or not.

      Corporations with a lot more resources than individual creators try stuff like DRM to prevent piracy, but that’s too expensive for ordinary people, and besides, it doesn’t work and never has. DRM schemes tend to be cracked within days of hitting the Internet. (Heck, a while back, Microsoft, who spends more on R&D each year than any of us will see in their entire life, came out with a new release of WIndows, and a crack was actually available before it was released!)

      If you believe your copyright has been violated, you can take them to court over it, assuming that they live in a responsive jurisdiction and that you can afford the court costs, but copyright suits are insanely expensive; who except a massive publisher can afford them these days?

      When it comes down to it, copyright law does jack squat to help individual creators who self-publish. The entire system has been turned inside out for publishers to freely abuse.

      • In early 2011 we closed of the door to the crackers of our software. Since then we’ve not seen a cracked version appear anywhere on the web.

      • Who’s “we”? I find that highly doubtful, unless of course the reason is simply that no one cares enough about your software to crack it, which is always possible.

        If you’re going to state that you’ve managed to do what has proven impossible for Microsoft, Adobe, Apple, EA, Blizzard, and all the working groups that implemented every generation of digital video, that’s about as extraordinary a claim as has ever been presented, and it requires extraordinary evidence to support it.

        DRM never holds up against a determined adversary, because it’s literally impossible. It’s been said that the basic problem of cryptography can be phrased as “Alice wants to send a message to Bob without Charlie being able to read it even should it fall into his hands.” The problem with DRM is that Bob and Charlie are the same person.

      • I wouldn’t be totally surprised if there was a crack, which is being distributed to paying businesses. What I am equally sure is that none are floating about the internet. If it is still being cracked it is being distributed through secure underground channels, and none have leaked onto the general internet. That the output files are incompatible with licensed versions, which means that one cannot send data to our support, and more importantly subcontractors cannot transfer data back to their clients. IOW any crack comes with a major downside in Interoperability.

      • Then authors should just sit back and let their stuff be pirated? Then why should they give a shit at all about publishers owning copyrights?
        But I have the feeling you don’t care about authors getting pirated at all, because you think it’s NBD. Well, it is.

  • My personal experience from the book world is that the crooks you have to worry about have printing presses (“-)). They will affect your publisher first and you indirectly.

    An individual trying to print Using Samba on a home printer will end up with a 4″ thick 8 1/2 by 11” lump of wood. Not practical, and incidentally almost as expensive as buying it in a store.

    O’Reilly made a deal with the Samba team to provide the whole book in electronic form, and it went from third in the market to first in a matter of weeks, was one of their best-sellers that year, and proved that even unreconstucted nerds buy books.

    If I wanted to self-publish, I’d like up a print-on-demand publisher and expect to make the majority of my money from book sales.

    [Movies and music are similar, but by no means identical: the physical media and tools of production are both wildly cheaper]

  • ‘Natural rights’ are ideas that exist outside of whether this or that government recognizes them presently..

    Would you say that you suddenly cease to have ‘Natural Rights’ if you flew over North Korea? Or …that the idea persists even though you’re technically (hopefully temporarily) in a country without such?

    • I’m not sure that means what you think it means. By a strictly literal reading of your argument, anything anyone wanted could be claimed to be a “natural right,” because it’s an idea that exists whether or not any government (or any other person, for that matter) recognizes it as such.

      • Someone could claim that, but they would not be on solid ground. The idea of Natural Rights has a philosophical lineage that is by no means so morally ambiguous that it allows anyone to claim any action as a natural right.

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