August 11, 2004

Badnarik Campaign: Now is the Time. Speak up on Intellectual Property Law!

The Badnarik campaign is reporting on their blog today that their site's Alexa stats are continuing to climb. If you examine the statistics closely, you will note that badnarik.org has already exceeded georgewbush.com in total pageviews per day, and is poised to defeat that site in "reach" (the number of internet users out of every million who view the site each day) as well. There are thousands (and that's a conservative estimate) of avid Internet users who are eligible voters disenfranchised by America's two-party system. This force being mobilized by the Badnarik campaign could, at the least, really shake things up (imagine a Libertarian winning a couple of Electoral votes!). However, there is one issue very near and dear to the heartss of these would-be voter computer nerds which the Badnarik campaign has completely failed to address: Intellectual property.

Without addressing this issue, Michael Badnarik will have little chance of reaching these voters. Now, granted, it will be a difficult task. As a Libertarian, Mr. Badnarik strongly supports personal property, but he must also support free speech and the freedom to innovate and market your innovations, so allow me, as a Badnarik supporter, to outline some considerations which are relevant to the discussion of a Libertarian stance on intellectual property:

First, the concept of physical property makes a lot of sense. A certain person can control a physical item, that item can be "his". There are no problems making this work. It requires very little government intervention to defend the physical property of individuals. A very small government can very easily do this, and it makes sense for a minimalist government to choose this as one of its essentials, because without it people must find (possibly violent) ways of defending their own property from others, or else the concept of property would collapse altogether which would, at least initially, plunge society into complete chaos and any order that emerged from that chaos without the reintroduction of property would be bizarre and unrecognizable and, unless "Communist Utopia" sounds appealing to you, I can think of no benificial outcome of such a revolution.

Intellectual property is a very different matter. This is not an obvious, simple idea - although it is based on one. Intellectual property comes from the idea of authorship. Now, authorship is a very sensible idea: if you are responsible for creating something, it makes sense that we should recognize that in some way. Based on this idea, the United States Constitution gives Congress the power to create a social contract relating to authorship in order to "promote the progress of science and useful arts" (Article I Section 8). This also makes sense. "The progress of science and useful arts" seems beneficial to society and, while a truly minimalist government might leave this to private organizations, it is a fairly sensible thing for the government to have a hand in. The specific social contract that Congress is authorized to create, is one in which authors and inventors have exclusive rights for a limited time. So far so good.

But this is not "intellectual property". The Constitution does not say that authors and inventors "own" their ideas in the same way a person can own physical property. No minimalist government could possibly enforce a system of ownership for ideas - that would require a totalitarian regime on the level of Orwell's 1984!

This is the direction the RIAA wants to take us. They demand that the government enforce their "intellectual property rights" against private individuals, and defend the information they "own" from use by other people. No Libertarian (and no sane individual, for that matter) can support this. Besides the fact that it is obvious nonsense, it violates the Constitution in several ways. Firstly, if any law really says this, it was not created to "promote the progress of science and useful arts," it was created to line the pockets of already wealthy record and movie executives. Second, the language of the Constitution, "securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries," doesn't sound like the producer "owns" his product and can license it as he chooses; it sounds like Congress, acting on behalf of the people, is licensing it to him! That is, after all, what a social contract is. Because we want people to continue producing this sort of content, we will all agree to let you have certain exclusive rights over it for a certain amount of time. That sounds reasonable. But, as I have said, that is not intellectual property, it's just an agreement meant to encourage content creation. Additionally, there is the "for limited times" part. Congress, in the Sonny Bono Copyright Term Extension Act (CTEA) actually increased the length of term for the copyright of already created works ex post facto. This has yet to go before the courts (though there is talk of lawsuits regarding it), but many experts (such as Lawrence Lessig) think that it may be unconstitutional.

If Michael Badnarik took all of this into account and formulated a reasonable and coherent view on intellectual property, articulating it as well as he has articulated all of his other views, he could win a lot of votes from disenfranchised internet users. Just recently, Princeton professor and respected blogger Ed Felten was bemoaning the lack of a pro-innovation candidate sparking a debate as to which of the two major parties was most likely to support innovation (there was no clear winner in the debate, but Ralph Nader's name was mentioned in passing).

So, in conclusion, this entry is a plea to Michael Badnarik and his campaign: PLEASE PLEASE PLEASE define yourself on intellectual property! You have never been known to skirt the issues; do not skirt this one, it matters!

Posted by Kenny at August 11, 2004 8:22 PM
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Comments

Hi Kenny,

I just wanted to state my agreement with you on Intellectual Property, to the extent you have discussed it. Let me share with you my own take on the issue in greater detail than you've explored it here.

I think there is merit to the idea that the creator of an idea should be rewarded for his/her creation, but I'm opposed to the concept of ideas being alienable property. Physical property, by definition is scarce and alienable, meaning that there are limited amounts of physical property, and physical property can be traded away for other stuff. Ideas are not scarce, and like one's own body, they are inalienable. It is meaningless to describe an idea as something that can be traded away. When I express an idea and share it with you, I still retain the idea. No amount of legal maneuvering can change that basic fact.

Take Brittney Spears for example. Some will argue that if she owns authorship for her songs, it is her property. In a sense that's true. In the same sense she owns her own body. But both are inalienable rights, meaning that they can't be given or traded away. Thus, just as a person can't sell themselves into slavery, so also they can't "sell their ideas into slavery," meaning that they can't irreversibly transfer their ideas to someone else and thereby permanently abdicate the ideas from themselves.

That's why I think copyright and patent law should be rewritten to reflect the inalienable nature of copyright...which is that it really can't be sold, anymore than Brittney can rightfully sell her own body into slavery.

Two people can't occupy and use the same physical space at the same time...hence the need for physical property rights. Two people can hold the same idea at the same time. Physical property can be transferred, because it is alienable. Voluntary alienation of property is simply another term that means free trade. But a creator of an idea cannot permanently transfer the rights to his idea to someone else, because in doing so s/he would alienate him/herself from that idea.

So what's the solution to the current copyright quandry? I think that the reward for first innovation should go to the first creator of the idea, and only to the first creator. This reward should not be transferrable in the same sense that physical property can be transferred, because ideas are not alienable property. Further, anyone should be allowed to use the idea, provided they pay a royalty to the creator of the idea...and only to the creator...for the legally specified length of time, as determined by Congress under their Constitutional authority.

Let's go back to our Brittney Spears example. Brittney writes a song. It's her idea, her original creation. She files for the copyright first, ahead of all others. That means that anyone who wants to use her song has to pay her a royalty. That's fine so far.

But here's what Brittney cannot do, under our clarified principle of copyright law that I'm proposing: she cannot sell her song to a record company, granting that company exclusive use of the song and thereby depriving herself of her authorship and the control that authorship implies. The reason she can't do it is that the song is not alienable property...and therefore it is not hers to sell. All she owns is the authorship of the song, not how the song is ultimately to be used by others.

Record companies are thus faced with a new business model. They can no longer monopolize the music industry with government assistance, because they no longer have exclusive control over the song.

By the same token, if former music pirates publish Brittney's song without paying her a royalty for it, they are violating her authorship..her copyright. This is a property-rights violation in that it is a violation of her inalienable rights. It's a violation of her authorship, her creativity, which copyright law was originally intended to protect.

Walt Thiessen
Libertarian TV

Posted by: Libertarian TV at October 11, 2004 10:15 AM

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