L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 263, March 14, 2004
Damned if it's Bush. Damned if it's Kerry. Damn.
Law Versus Reality
Exclusive to TLE
Last week, in my essay entitled "Law Versus Reality," I made a claim that is no doubt startling to many libertarian thinkers:
"Intellectual Property" does not exist.
In all fairness, I should have written Part II of this article first, as an introduction. However, I was so incensed by the sheer gall of the money-grubbing socialist presently in charge of SCO that I believed his actions warranted immediate comment.
That out of the way, it's important to explain why, from the perspective of the Zero Aggression Principle, "intellectual property," patents, and even copyrights are nothing more than legal fiction. Ideas are not property. They never have been, they never will be, and it is a horrible mistake to behave as though they are.
Firstly, the Zero Aggression Principle states:
As has been explained so many times previously, this is the sole defining philosophy that need be adhered-to by individuals who wish to interact peacefully. We can disagree about literally everything else: religion, sexual orientation, use of chemicals, etc. As long as we agree that the only moral use of force is as a response to someone else's initiation of force, then we can at least live together without killing each other.
It must also be pointed out that one need not have a "critical mass" of individuals who adhere to the ZAP in order for it to be implemented. I have adhered to this philosophy for nearly ten years while others around me may not.
If one defines basic morality to be the Zero Aggression Principle, there is simply no basis for any form of intellectual property. In fact, in the context of the ZAP, all arguments in favor of sole proprietorship of ideas collapse instantaneously.
We must first begin with basic principles: what is intellectual property? It is an idea, or more correctly INFORMATION. Information is of three types: known, unknown, and secret.
Known information can be discoveredor in the specific case of ideas or works of art, such information can be created. As long as the information is kept secret, known only to the discoverer, it is his or her sole property. The moment that the information is divulged to another individual, it is no longer the sole property of the discoverer and can never be returned to his sole proprietorship.
For purposes of argument, let's use the most common form of intellectual property on the market today, the music CD:
Firstly, why do music CDs (or any form of storage, from the printed word to the computer disk) exist? Simple: because the human brain isn't capable of retaining or recalling every piece of information to which it is exposed. The CD is an augmentation to our memory.
For example, I enjoy the music of Shania Twainparticularly her latest CD and its title track, "Up!" If CDs, magnetic tape, or vinyl record albums were never invented, the only way I could hear Shania's music would be to attend a concert. If I wished to recall the song, I'd have to rely on my imperfect memory of the concert.
Fortunately, however, modern technology allowed Shania to bring her band into a studio and engineer a recording of what she felt was the optimal orchestration of her songs. This was then burned onto CDs by the millions and put into stores for public consumption.
Modern copyright law holds that Shania is the sole owner of the content of that CD. However, this copyright law is nothing more than legal fiction, and for one simple reason:
If Shania is sole owner of the song, regardless of its format, then by logical extension, she is sole owner of the memory of the song in the listener's mind.
This is clearly impossible. Shania cannot own someone else's mind or memories. By extension, she cannot own the contents of a CD intended solely for the purpose of augmenting the listener's memory.
Many libertarians would be outraged at this notion. Traditional thinking holds that since Shania went to the trouble of creating and recording the song, she is entitled to any income derived from that songhence copyright law.
The problem is that there is no basis for this in the Zero Aggression Principle.
Imagine that some other band were to sing "Up!" in a concertor even record it for distribution via CD. This does not initiate force against Shania.
Certainly Shania would not be happy about it. No doubt it would impact her income. Nevertheless, negatively impacting Shania's contentment and income do not initiate force against her. Many competing businesses routinely make each other unhappy and impact each others' income. It is not an initiation of force to do so.
This argument can be equally applied to any form of "intellectual property," from software code to CDs to books ... anything that in modern law may be copyrighted or patented.
Patents in particular represent a government initiation of force: it essentially grants to an individual sole use of a law of nature. There is absolutely no reason under the Zero Aggression Principle to prevent another individual from exploiting the same law of nature once it has been discovered. Exploiting the basic operation of the universe is the birthright of every sapient individualindeed, there is no way to survive as a human being if one does not exploit laws of nature.
Certainly this makes complete mincemeat of modern patent and copyright law, but the entire notion is flawed in the first place. It is based on an immorality, the idea that government may use force to grant rights that never existed in the first place.
Thomas Jefferson suggested precisely this same idea two hundred years ago in a letter to Isaac McPherson:
Since Jefferson's time, what limited copyright and patent law the United States had until the beginning of the 20th century allowed ideas and inventions to spread like wildfire. The action of those limited laws combined with the free market and millions of free individuals brought more prosperity and technological innovation in a mere century's time than had been seen in the entire preceding history of humankind.
Today, there has been a significant decrease in the level of innovation possible in the United States. This is, as I suggested in my essay, "Why Johnny Can't Get a Job," in no small part due to socialist regulations that have made it impossible to create new industries. However, a large measure of blame rests squarely at the foot of the country's ever-expanding copyright and patent laws.
Ultimately, of course, the increasingly unstable economic, social, and political realities of modern socialist America will cause the Federal Government to collapse. There is no socialist state in the world that has not ultimately collapsed, and it is self-indulgent folly to believe the United States is any different.
Some day, sooner than any of us think, the monstrosity our government has become is going to keel over deadthere is, after all, only so long you can keep a thousand-pound freak of nature alive. When this occurs, there will hopefully be enough devotees of the Zero Aggression Principle that we'll learn from the preceding several thousand years' history and replace that freak of nature with nothing.
How will Shania make her millions without a government to sponsor an immoral monopoly on "ownership" of a song she intentionally distributed to millions of individuals? I don't know for certain. Perhaps she won't be as rich. Perhaps she'll come up with some kind of non-disclosure agreement regarding performance of her songs. Perhaps she'll add value to her version by being a more talented singer or by offering better recordings of other popular songsI can certainly think of many I'd like to hear her orchestrate and sing.
What will occur is that a quarter of a billion individuals, each 100% in control of their lives and destinies, will create all manner of new ideas and inventions. They'll use the free market to further their own separate interests, self-governing guided by the Zero Aggression Principle. It won't quite be a world we recognize, without patents and copyrights.
It will be far, far better.
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