SOPA and Questioning Intellectual Property
By Anthony Gregory | Wednesday January 18, 2012 at 11:03 AM PDT
Hollywood, the big recording companies, and the rest of the old entertainment industry have strongly supported the Stop Online Piracy Act and its companion, the Protect IP Act. These bills, sponsored by big-government Democrats like Chuck Schumer, pose unprecedented threats to online liberty. If there is one free frontier remaining in modern life, it is the Internet. In the name of cracking down on online piracy, SOPA was written to empower the government and its favored corporations to shut down web sites that enable content sharing—copying media files, in particular.
The Internet has allowed bootlegging writ large to overtake the world. Any movie can be found and downloaded in minutes. Any song or television show can be yours in seconds. The practical limitations on copying that were posed by the late 20th century era of cassette tapes and Xerox machines are a thing of the past. Data has approached being free.
In my opinion, this is as it should be. I don’t believe intellectual property is legitimate. Whereas private property rights in tangible goods are one of the core foundations of civilization, and private property owners have a right to rigorously protect their property from trespass and enlist others to help in its protection, I do not believe the same is true for institutions such as copyright and patents.
I know others of the free market tradition who disagree with me, and I respect some of their arguments. But I can’t get over the difference between copying information and stealing a tangible, scarce good. If you take my car, I no longer have a car. If you copy this blog post and publish it on a forum, or if I write a song and you play it at a show or even distribute recordings of my performance, there might be a certain improprieties in play—even ethical violations—but in the end I still have my blog post. I still have my song. Property rights are about protecting people’s scarce resources. Intellectual property enforcement creates scarcity where it need not be. In that context, IP enforcement seems like a type of censorship, a hampering of actual property rights, a limitation placed on people regarding what they can do on their own property with their own bodies. If I invite you into my home and reenact a bit from the Music Man in exchange for $20, how does this violate anyone else’s rights? How does the calculus change if I invite in 500 people and happen to have a stage and fellow actors to accompany me?
There are utilitarian arguments for intellectual property—that it encourages innovation by ensuring creators are compensated for their creations. I don’t much care for utilitarian arguments pit up against moral ones. I find the moral case against intellectual property to trump the practical case for it. But I also find the practical case to be weak. The strongest arguments are always said to concern the pharmaceutical industry. Boldrin and Levine have shown that much of what is assumed about progress in medicine is a myth. Just one fascinating tidbit:
In Italy, pharmaceutical patents were prohibited until 1978, when the Supreme Court ruled in favor of eighteen pharmaceutical companies, all foreign, requesting the enforcement of foreign patents on medical products in Italy. Despite this complete lack of any patent protection, Italy had developed a strong pharmaceutical industry: by the end of the 1970s it was the fifth world producer of pharmaceuticals and the seventh exporter.
As for art and entertainment, look around us. We live in a world of ubiquitous piracy. Practically any song can be found on youtube. Any movie can be downloaded. Any book can be scanned and copied. The industries don’t care for this, but artists, actors, musicians, and other creators have hardly ceased producing. Most of them do not create for money, and those who do find ways to be renumurated outside of the IP matrix. Besides, IP rarely benefits these people as much as it props up the old industrial institutions in which they find themselves trapped. Musicians in particular will often spend most of their careers making pennies on each dollar that go to their record companies, which they must then plead or pay for the privilege of playing the songs they wrote in public. Something is amiss.
To enforce IP, we see the same kind of disproportional nonsense that exists in the drug war. Mothers fined millions of dollars for downloading songs. Civil liabilities that would put the average American on the hook for billions of dollars if you added up everything he did in his life that constituted “piracy.” College kids having their lives turned upside down over the 21st century equivalent of handing VHS copies to their friends of their favorites TV shows. And yet such measures, along with the new proposed draconian stuff in SOPA, will never stop piracy, or even curb it significantly. This has to tell us something. Libertarians have often argued that crimes like murder, rape, and theft do not require the same kind of disproportionate punishment to “make an example” of someone, nor do they necessitate the same violations of privacy and personal liberties to enforce, as do victimless crime laws against drugs, gambling, prostitution, and the like. The same appears to be true of stopping “piracy.” This alone implies that file sharing has more in common with victimless vices that crimes against person and property.
Now, personally, I don’t mind paying businesses for content. Even though I think no one should be jailed for downloading media, I like to give money to artists and intermediaries who bring me art and entertainment. The trouble is, in a time when it’s easy to find things illegally, the legal market, often in bed with government, has made it difficult to get stuff we want for a reasonable price—or at any price. Chris Rawson writes:
Here’s how you reduce piracy: Make it easier for people who want to access and pay for your content. That means no more arbitrary restrictions on what devices we can view it on. That means making the same content available to everyone, worldwide, simultaneously or as close to it as feasible, and at a fair price that consumers won’t balk at.
No more geo-restrictions on online content—this is the Worldwide Web. No more distribution delays to overseas territories. No more region coding on DVDs and Blu-rays. No more DRM on electronically-distributed media. And for God’s sake, no more forcing me to sit through two minutes of anti-piracy propaganda every single time I insert a DVD. In short, stop punishing the people who want to pay for your “intellectual property.”
I will divulge that I am a paid subscriber to Netflix, Hulu, and Amazon Prime. I have had difficulties finding lots of my favorite old content. Hulu has nearly every Saturday Night Live episode online—except for some of my favorite sketches. People who try to put them online are made to take them down. What gives?
Many websites today—Google, Wikipedia, Reddit, and prominent others—are protesting SOPA. The typical line is that we should fight piracy without stamping out internet liberty. Perhaps the very notion of stopping piracy through the law—using the force of government to enforce intellectual property—is worth rethinking.
One day, decades from now, I may very well be a libertarian in his golden years assuring younger lovers of freedom that, yes, there was a time when the Internet was basically free, when anyone could set up a website, anyone could copy and distribute information. Future statists will talk about how the Internet was like the Old West, a setting of chaos that had to be reined in by the government for our own good. Just imagine the tales of how once upon a time, before the federal government cleaned it up, the Internet was characterized by obscenity everywhere, libelous journalism, scamming online sellers, massive identity theft, and free-wheeling piracy. If Internet liberty is ever crushed, intellectual property will have likely played a defining role.
Tags: Censorship, Free Market, Intellectual Property, Morality, Personal Liberty, Philosophy, Progressivism, Regulation, Technology, The State, Utilitarianism 
“I don’t believe intellectual property is legitimate. I know others of the free market tradition who disagree with me...”
This is an interesting argument to make on the Independent Institute blog, Anthony. The Independent Institute publishes lots of work, which it copyrights, and the Institute does what it can to protect its copyrighted material from unauthorized use. Meanwhile, other organizations, like the Mises Institute, make their material freely available for copying through the Creative Commons. I’m not taking a side here; just pointing out that while some free market organizations agree with you, the Independent Institute isn’t one of them.
Randall Holcombe | Jan 18, 2012 | Reply
Is software intellectual property?
Paul Hoffmann | Jan 18, 2012 | Reply
I like how there is a copyright notice at the bottom of this article.
That guy | Jan 18, 2012 | Reply
Great article, as always, Anthony. Thanks for posting this.
Ben Stone | Jan 18, 2012 | Reply
@Paul Hoffmann
Software generally uses copyright, but there are also a great many software patents, too. I don’t know of another industry that uses both copyright and patents as often as software makers do.
Software is also an interesting topic for copyright because you find licenses like the GNU Public License useing copyright to force people to share their changes to the software source code if they modify and distribute it. They call it copyleft: http://www.gnu.org/copyleft/gpl.html
This license is used for the Linux kernel and GNU userland tools, which – along with an entire operating system – you can legally download and use for free: http://www.ubuntu.com/ubuntu There are other licenses, like Apache, MIT, and BSD, that also encourage sharing and modification.
Michael Vogt | Jan 18, 2012 | Reply
Seems really the underhanded way to control the internet.
Safariman | Jan 18, 2012 | Reply
I couldn’t disagree with some of the assertions in this article more. While SOPA is a bad bill, the concept of IP is not a moral issue (99% of the time).There is nothing wrong with making money from your ideas. This gives small companies a chance (the Google story) against bigger institutions that have more resources available (eg for advertising). You also use probably the worst example of patents out there by invoking the pharmaceutical industry. Patents give companies motivation to innovate, which you mention but gloss over. This is a huge incentive and shouldn’t be overlooked. I agree that data should be free and I agree with the spirit of the post, but you make many terrible arguments.
Steve | Jan 18, 2012 | Reply
That guy, This is because the Independent Institute supports common-law copyright law and not the collectivist intellectual property views of Lawrence Lessig,
David Theroux | Jan 19, 2012 | Reply
In the US, copyright is automatic. You can’t turn it off without jumping through lots of hoops.
As I’ve said many times and in many ways, “Fame may be fleeting, but Obscurity is Forever”.
If people are actively copying your stuff, it means they like it. Use that information, that free marketing data, to improve what you do and make money from it.
I go to a theater to go to a theater. If all I want is to see the show, I can rent a DVD for $1, or see a copy, but nothing is going to FORCE me to buy a ticket when I do not want a ticket.
The entire idea of using threats to support your business model does nothing but alienate those people who would be your customers.
Bob Robertson | Jan 20, 2012 | Reply
Theft has a very specific definition: To deprive someone of their property. No one has been deprived.
The pro-IP person will object that they have been deprived of the _POTENTIAL_ profit they _MIGHT_ have had _IF_ the person with the copy had paid for it, based solely on the fact that the copy exists.
I believe this is why “Intellectual Property” requires POSITIVE LAW to create and enforce it. Unlike robbery, battery, murder, trespassing, which all involve someone acting in a way which directly impacts someone else, and requires no statute to make it wrong.
I foresee a market for registration and reimbursement methods, so it will be possible to claim fraud against someone who claims one person’s work for their own, and for people who appreciate someone’s work to tip them.
The standard “Intellectual Property” claim that since I spent years of my life producing this book, the world owes me a living, is pretty much just the Labor Theory of Value again.
Bob Robertson | Jan 20, 2012 | Reply
“in the end I still have my blog post. I still have my song. Property rights are about protecting people’s scarce resources.”
Right. That’s what everyone wants to protect. So what if independent.org is taken down?
Opposition to government mandated CENSORSHIP seems to be the strongest argument and rallying call against SOPA/PIPA in my mind. More so than controversial ideas on copyright that I fear are only a divisive intellectual distraction from the real threat to liberty.
I am inspired by the millions of law abiding and copyright respecting American citizens and engineers who were so staunchly opposed to government censorship that they independently and collectively rose up to contact their representatives, petitioned, demonstrated, and stopped this bill in an unprecedented way.
https://www.eff.org/deeplinks/2011/12/internet-inventors-warn-against-sopa-and-pipa
indie | Jan 24, 2012 | Reply
Yes the concept of property rights is based on the scarcity of goods. IP rights does not have this behavior.
ernie | Jan 24, 2012 | Reply
Although I am sympathetic to this supposedly libertarian argument (and otherwise lean towards libertarianism), I think Gregory has it oversimplified.
I know many people who no longer purchase DVDs of movies, nor music, precisely because of illegal copies on the Internet. The potential profit loss is not theoretical; it is real.
Moreover, there is a a game theory aspect to this. One person downloading “Everybody Wants to Rule the World” may seem harmless, but “what if everybody does it?” has to be considered. Even though many of those downloaders might not have paid for the legal version, there definitely is a loss to musicians and the companies that publish their work.
SOPA was wrong, but so is piracy. I won’t be a hypocrite and pretend I’m innocent in this, but nor will I pretend that uploading and downloading others’ content is perfectly innocuous and not a loss to artists and publishers.
Dr. Michael W. Ecker | Jan 24, 2012 | Reply
A loss of profit is not itself proof of a rights violation. If you are the first on Main Street to sell spaghetti and clams, and I set up shop across the block and sell spaghetti and clams, I took your idea and cut into your profit, but that doesn’t mean I committed theft. I don’t buy into the game theory stuff. Almost everybody _does_ do it. You even imply you do so yourself. But there is more art than ever.
Most musicians don’t make anything on record sales. The companies do. But only if the IP model is just do those companies’ profits reflect justice, rather than a distortion of the free market. Not everyone here agrees with me on this. This is just my view.
Anthony Gregory | Jan 24, 2012 | Reply
SOPA is just an enforcement mechanism for prior law – IP in this case – as I think is Gregory’s point. SOPA is a good example of a reductio ad absurdum and ultimately why IP is a bad idea. If you can’t enforce a law universally, 100% of the way without destroying people’s rights and otherwise trashing the well-being of society, then the wisdom of the law – again, IP in this case – should be seriously suspect.
Brent | Jan 24, 2012 | Reply
Prof. Gregory, your response to me is disingenuous. You speak of setting up a stand across the street to compete and sell spaghetti. This is a seriously flawed analogy because, in your hypothetical, you are not stealing my spaghetti — which would be far closer to a proper analogy or comparison.
Frankly, I find myself stunned that “everybody does it” is your defense for theft of the artistic or intellectual property of others, evidently based mostly on the ease of copying. I have to believe that you would be less than thrilled if your book sales shrunk to near zero because the e-book version was making the rounds of all the torrent download sites and reader forums. (Aside: forums? fora?)
As a professor, author, and former computer journalist myself, I believe that I’ve only rarely been the victim of intellectual theft (i,e., I was partially plagiarized by a rival), but even that minor offense hurt, albeit not economically.
P.S. Publishers still are a bit better at protecting content than music and video publishers are. But might should not make right, and I am astounded and appalled that a learned man defends or advances the philistine idea that just because he can copy work without paying the originator for the value, that it’s morally okay.
It is not, sir!
Dr. Michael W. Ecker | Jan 25, 2012 | Reply
Dr. Ecker, I believe you are begging the question. My whole point is it is not theft. If I set up a shop next to yours and serve spaghetti and clams, giving away a free drink with each order, I may be copying your idea. I may have even emulated your recipe to some extent. But this is not considered theft. And what about fashion? Knock-offs in fashion are common, don’t tend to hurt original fashion designers, and are generally not considered theft. The very notion that taking ideas is theft is what I am challenging.
I am not saying that copying music or art without paying is perfectly morally acceptable in all circumstances. That’s a stronger claim than I’m making. Indeed, in my post I write: “If you copy this blog post and publish it on a forum, or if I write a song and you play it at a show or even distribute recordings of my performance, there might be a certain improprieties in play—even ethical violations—but in the end I still have my blog post.”
Plenty of acts are immoral but shouldn’t be considered rights violations. Lying is generally immoral. Infidelity is immoral. Simple rudeness can be immoral. Advocating harmful government policies is, I believe, gravely immoral. None of these things should be illegal, though.
I’m also not saying that just because “everyone does it” it’s OK. But it does seem odd to me that someone who admits to the act would call it theft. Back when I thought IP was legitimate, I certainly didn’t pirate music from the internet, and I condemned the act when I saw it. If it’s indeed theft, it should be treated like theft—condemned in no uncertain terms.
If I had a good friend who started stealing cars, I would risk losing my friendship with him to encourage him to stop. If I actually believed IP were legitimate, I would have to behave the same way toward those I know who copy songs or even watch unauthorized Youtube videos.
Anthony Gregory | Jan 25, 2012 | Reply
1) It is a violation of the social contract. Suppose Mr. X will provide services in the entertainment industry – whether as entertainer, producer, photographer... – and X will do so to benefit society and himself. Benefit to himself is not just satisfaction but sustenance, and for those removed from the actual entertainment it is more for sustenance. So, yes, it should continue to be illegal to steal the fruit of the labor of X and thousands of others in the allied industries. Otherwise, people will no longer buy the art, book, music, or video because some people give others a means of ripping him off.
2) A different thought: To make up for the lost income, affected industries of entertainers, artists, and writers will have to do something we don’t want, and that is inundate us with advertising.
Oh, wait. They do that already.
I will have to think more on your point, but my strong visceral reaction is tough to overcome, namely, that there is theft involved, that such theft not only is unethical but violates the social contract, and will probably have other unintended consequences that may make us regret taking the easy road of the free buffet afforded by the theft of the labors and talents of others.
Can you help me overcome this combination of feeling, which arises from human solidarity, and rational view of human social cooperation and contracts?
Dr. Michael W. Ecker | Jan 25, 2012 | Reply
I believe in social solidarity, but not enforceable contracts. I do think artists and performers should be compensated, but I think it’s clear that they are regardless of IP. Indeed, musicians, for example, often make far more from concert sales than recordings. Most of the profit goes to the industry, and then artists are often not allowed to even play their own songs because they are “owned” by a record company.
Anthony Gregory | Jan 25, 2012 | Reply
OK, Anthony. I get it.
You are not so much a libertarian as a closet anarchist!
Thanks for the discussion. That’s all for me...
Mike
Dr. Michael W. Ecker | Jan 26, 2012 | Reply
I always enjoy reading your arguments against IP, because I am myself uncomfortable with many of the undesirable consequences of IP protection. However I think your argument that “If you take my car, I no longer have a car. If you copy this blog post... in the end I still have my blog post”is flawed. How about if I steal your identity — “take your name” — and pretend it is mine so that I can use it to make money? We both agree that this is not a “property” crime, but it is fraud nonetheless, and is not just unethical under libertarian philosophy, but a criminal violation of my natural rights.
Henry Bowman | Jan 31, 2012 | Reply
We spent nearly 10 years, thousands of man-hours, several hundred thousand dollars designing, developing and refining a commercial software product (that assists corporations with gov’t compliance). We began to sell our product without any physical (software or hardware) license restrictions. We have now incorporated a complex system to ensure users cannot install, use or copy our product outside what’s defined in the legal restrictions. Our software provides immense value to corporations, tax collectors and people.
Without copyright protection, this software wouldn’t exist. Software is a tool, a product, not unlike a shovel, as opposed to a song or book.
Paul Hoffmann | Jan 31, 2012 | Reply
A few comments.
Re: Italy’s Drug industry – Of course it would be huge if Italian drug companies were able to produce generic drugs while they were still under patent protection in the US.
Re: drug research – given the huge hurdles created by the FDA, what company would invest millions of $ in research if they couldn’t recover these costs before someone copied their “idea.” Even without the FDA hurdles, insurance fees could be huge.
Re: Software protection – Most of the software I use is protected by a license/contract whereby I agree not to make copies before I am allowed to download it or open the cello wrap. Books and recordings could be protected in a similar way, by contract rather than by IP laws. Of course, enforcing the contract would be at the cost and time of the ‘owner’ rather than the state.
Jim McIntosh | Jan 31, 2012 | Reply
@Paul Hoffmann: “We have now incorporated a complex system to ensure users cannot install, use or copy our product outside what’s defined in the legal restrictions.”
Seems to me spending that much effort on protecting the product is a pretty clear admission that copyright laws can’t be depended upon.
“Our software provides immense value to... tax collectors…”
Ah, then may it spontaneously combust.
Henry Bowman | Feb 4, 2012 | Reply
That’s an excellent point. Before we instituted any protections, we assumed corporations would not violate the contract, that fear of a lawsuit would be a deterrent.
What motivated us to go the extra step was fear of a competitor getting a copy, not of a corporation copying the software onto more PC’s than licensed for.
Gov’t compliance — We certainly found a market niche that’s bound to stay!
Paul Hoffmann | Feb 5, 2012 | Reply