• Evan

    Well, I’m not a self-proclaimed libertarian anymore, but I was at one time, so I will presume to comment.

    I think you’ll find that there’s no one answer to that question.

    Many libertarians believe that the right to own property is the most fundamental right of all, and some of those reckon that property is property, and anyone who tries to weaken intellectual property is just another damn confiscatory statist.

    Others, however, see copyright law as a government regulation, and therefore suspect.

    When I was a libertarian, I was in the latter camp. (But I was always much more skeptical of business interests than the usual run of libertarians: Had I encountered Barlow’s term bohemian libertarians at that time, I would probably have used it to describe myself.)

  • Anonymous

    It depends on who you ask – but here are two “self-proclaimed” libertarians who are against IP:
    The Libertarian Case Against Intellectual Property Rights by Roderick Long
    Against Intellectual Property by Stephan Kinsella – disclaimer: this is a lengthy PDF.
    The late Samuel Konklin III makes a consequentialist argument here:
    Roderick Long also has a list of links by various Libertarians and others on IP:
    Molinari Institute Anti-Copyright Resources

  • http://jtauber.com/blog/ James Tauber

    The important thing for me with regard to copyright law is that the author can make their own decision and choose to use something like a CC license if they have a problem with the copyright terms or notion of fair use.

    In many cases authors are reassigning rights to a publisher of some kind. If the author isn’t happy with the publisher reserving all their rights, then they should rethink reassigning the rights to that publisher.

    I have a huge problem when copyright extensions are retroactively applied. It baffles me that it’s even possible to retroactively impose licensing like that without the original author’s agreement.

  • Anonymous

    What about patent law? I feel like we’ve forgotten about it.

  • http://insomnia.livejournal.com Mark Kraft

    Funny that you mention this, as I read something on their party website that touched somewhat on the subject recently.
    Politicians are trying to take away your right to read what you want, and to say what you want.

    The Internet is making it possible for new voices to be heard — the voices of people who simply could not afford to publish their ideas or display their artistic talents to a wide audience using older technologies. Established interests of both the left and the right fear new voices, and are trying to control what appears on the Internet through new laws and regulations.

    America’s Founders couldn’t foresee the Internet, but they knew that government control of information was not only a violation of personal liberty — it was a threat to their hopes for a nation based on the principles of self-government. So they gave us the First Amendment.

    The Libertarian Party carries on today in the tradition of the Founders:

    The Libertarian Party didn’t wait for the Internet to become popular to stand up for principle: The LP has always supported freedom of speech and the press, and has had language specifically supporting freedom of online communication in its Platform since 1991.

    The Libertarian Party joined with thousands of concerned Internet users in “turning its web pages black” in protest of President Clinton’s signing the unconstitutional “Communications Decency Act” in 1995.

    The Libertarian Party continues to speak out today against the attempts by Democrats and Republicans to find loop-holes in the First Amendment, so they can turn the Internet into a government-controlled medium.


    There is also this press release indicating their opposition to The Consumer Broadband and Digital Television Promotion Act.

    Livertarians are also strongly in favor of free speech, which could reflect on some forms of copyright which are considered free speech. They consider themselves to be strongly in favor electronic free speech, privacy, and the right for individuals to release cryptography software, in much the same way that the EFF is. I suspect they would find situations such as the freedom to talk about copyrighted security algorhythms protected speech as a result. They do not say whether they consider such software a form of free speech, however — a language of its own that cannot be copyrighted. How the Libertarian Party views software patents, for instance, is unclear.

    At the same time, however, they are also strongly in favor of supporting drug patents. Those patents only last 20 years, however, and half of that time period is usually taken up in testing. As such, they view patents as an important way that government can pass laws which defend the free market.

  • http://phnk.com phnk

    1. If you take it from a philosophical point of view, IP law is IP protection. Which is not necessarily performed by states (Burk’s “Muddy Rules in Cyberspace”, available at SSRN).

    2. If you take it from an economic point of view, libertarians defend a strictly free market, which implies passing antitrust laws. By extension, IPRs are also part of the free market.

    I think libertarians will agree IP is essential to the economy as they conceive it, but I also believe they would favor private DRM/RMI, enforcement, regulation over state courts.

  • Tim Wu

    phnk, the point about support for private property substitues is a good one. But I think odds are private DRM will never get far without government action (or?). Big collective action problem.

  • danheskett

    From my libertarian perspective, the current state of copyright has been perverted beyond all recognition. Copyright was intentionally designated for a “limited time”. However, as we all know, Congress seems happy to extend copyright forever in limited, bitesize chunks designed only to usurp and defy the “limited time” notion.

    I stand for freedom, but not the freedom to take what I create and lock it up for all time. I stand for freedom to be creative, to benefit from the works of those before us, and for those after me to benefit from my works. I stand for the freedom for our American culture to flourish, improve, and spread.

    The same goes for patents and to a lesser extent trademarks. At some point – a point best described as visible only in the rear view mirror – “freedom” in granting patents and trademarks has become a form of statist dictatorship. When the fundamental ideas and principles of medicine, biology, computer science, manufacturing and physics become patented to such a heavy degree the freedom of the individual to invent, create, modify and improve becomes almost totally impaired.

    Liberty is a two way street. It has to acknowledge that the corpulent form liberty espoused by some (ie, 100 year copyrights, patents on common knowledge, trademarks on common words) is on its own merits the ultimate in despotism. What right do I have to exclude my heirs and the heirs of the world from deriving great works from the foundations I lay? Or put specifically, what right does Walt Disney have to tell my young child she can’t write a story with “his” characters in it, decades after his own death? How is liberty served by allowing the deceased to govern the actions of the living?

    When the freedom to lock-up ones own discoveries and creations extends for generation upon generation liberty is not being excercised, but rather, denied.

  • steven

    I think questions about libertarianism only obscure, rather than inform.

    Traditionally libertarians were strong believers in INDIVIDUAL liberty and had an intense distrust of power and authority structures in general. What has become known as right wing libertarianism is a thinly veiled attempt to roll back social control of unrestrained corporate behavior. These people are not concerned with individual liberty so much as corporate liberty. They have no general distrust of power and authority as they look after the interests of the priveleged who have generally run societies. They only developed a dislike of government when labor unrest and social rebellion led to a leftward swing in western governments and they nearly lost control of governmental power.

    If you take any proclaimed libertarian and figure out where they fall on the question of deregulated corporate power you will have a good predictor of where they fall on intellectual property questions. In the end, modern intellectual property debates are debates about concentrated corporate power, and the ability of society to protect itself from the abuses of such power.

  • Anonymous

    I am a self-proclaimed Libertarian, not because I share all of the party’s views, but because that party is the one that shares the most of mine.

    With that in mind:

    1. I oppose most aspects of the DMCA. A blanket prohibition on circumvention would and does hinder innovation, in the form of interoperation. I shouldn’t have to pay (or be prohibited) from interoperating with someone else’s technology. I should be allowed to do whatever the hell I want to some device I purchased. Reverse engineering for interoperability should be a guaranteed right.

    I believe that an author’s work should be protected. The copyright holder should have exclusive rights to sell or give away his works. No one else should be allowed to do that, at least until the public would benefit more than the author would. There definitely needs to be a “limited time” bit in there, but I would use the more human definition for “limited time” (a few years, maybe 10-20 at most) instead of the scientific definition that they seem to be applying (where “limited” < unlimited/infinite). I doubt that’s how the term was intended to be defined.

    BUT (and this is a whopper of a but), most recent copyright law is really just trying to fight the current provided by the Internet. We now have the means to share–almost entirely for free–any volume of information we want. Bits of data are being copied and sent all over the world. No copy-protection system has ever been invented that couldn’t be defeated. So long as there are people that find value in defeating these systems, those systems will be defeated, and those people will extract value from doing so. Making it illegal isn’t going to change that. I might go out on a limb here and suggest that we back off a bit with regards to copyrights. It’s not practical to enforce them anymore. Packing layers and layers of legislation and technology onto systems and networks that potentially carry copyrighted data is not the answer. It might be time to consider letting this industry die. People will still pay to go to movie theaters and watch a movie, but maybe they’ll be less willing to go rent a DVD (assuming the content industry decides to release DVDs after this). The content industry fought VCRs pretty vigorously when they came out, so clearly they felt that they could sustain themselves without them.

    2. I oppose software and business process patents as they are used today. It’s basically a lottery. If you have an idea–not necessarily novel or unobvious–you can get a patent and now have ammunition with which to extort money out of others. Of course, it rarely happens that way, since it could be argued that any Joe walking down the street is violating 10 different patents by doing so. My shiny new patent could easily be countered by a few defensive patents, potentially leaving me worse off than I was before. The very fact that we have a term like “defensive patent” in our vocabulary suggests our patent system is seriously broken.

    My two cents. Thanks for the opportunity.

  • http://oknarb.web-log.nl Branko Collin

    “I believe that an author�s work should be protected. The copyright holder should have exclusive rights to sell or give away his works.”

    In my opinion, your beliefs are contradictory here. If a work is burdened by copyright, that is, if only the author controls its distribution, then in most cases that will be bad for the work. In the long run, most works are being destroyed by copyright, because it is often not in the interest of the author to invest time and money to keep the work alive. So works that are under copyright are far from being protected by copyright.

    The best protection for a work is to either remove the copyright, or to force the author to take protection measures. The latter would probably come down to some form of mandatory licensing. Both methods enable parties other than the author to disseminate and distribute the work, thereby keeping it alive and protected.

  • Matt

    I’m a bit muddled on the question of IP in general. I’m sympathetic to the idea that somebody who writes a brilliant novel or spends years coming up with a path-breaking invention ought to be able to reap some unusual rewards for those accomplishments.

    I hate the idea of a world where every useful concept, idea, or approach “belongs” to a group of rent-seeking creeps.

    I don’t feel like I’ve got any special insight in finding the right balance there. Copyrights and patents don’t sound bad in principle, but my feeling is they’re getting abused and we are sliding much too far toward the world of rent-seeking creeps.

    I probably would have leaned more the other way ten years ago, and I suspect libertarians in general would have. Being a computer geek and seeing the jackassery of software patents, the DMCA, and the spectre of pervasive DRM has made it clearer to me how easily IP can be abused.

    You might get in touch with Jimbo Wales. He’s the lead guy of Wikipedia, and is obviously has a great deal of affection for the project and the free sharing of information. Unless things have changed in the last few years, he’s also a staunch Objectivist. He’s an articulate guy and might have some interesting thoughts on the differences between IP and physical property from that POV.

  • http://fastolfe.net/ David Nesting

    “…then in most cases that will be bad for the work.”

    I agree only in the literal sense. The “work” doesn’t enjoy the same amount of exposure than it might ordinarily. It’s good, however, for the copyright holder. He now has the ability to sell copies of or access to his work and profit from it, depending upon the market’s demand.

    Perhaps I should have written “I believe that an author’s rights to profit from his own works should be protected.” I wasn’t trying to suggest that the work itself enjoy some sort of protection not typically afforded by copyright law, though a good copyright law should not allow this works to disappear simply because the author still holds copyrights over it but otherwise has completely forgotten about its existence. This is one major tragedy of our current copyright system (and, more directly, the numerous extensions granted). As they say, there are silent films that are still under copyright and are disappearing from existence, because it’s illegal to copy them, and the copyright holders don’t care. I shudder to consider how much easier this will be in a digital world, when it’s illegal to copy a piece of data that is never fixed in permanent storage. If I’m not allowed to hold on to it for even a few minutes, how am I supposed to hold onto it for the life of the author + 70 years for it to enter the public domain? And what storage medium could hope to last that long? I do agree with these points, though I wasn’t attempting to discuss them in my earlier post.

    “In the long run, most works are being destroyed by copyright,”

    Once the author has had a reasonable amount of time to reap whatever profits he can from his work, his copyright should lapse and the work should enter the public domain (or, for those in the “credit where credit is due” camp, a tremendously expanded form of “fair use” would begin, perhaps just requiring derivatives not to act like the work is entirely their own). This can only happen with a more reasonable interpretation of “limited time”.

    force the author to take protection measures

    Perhaps a good compromise can do both? Allow the author some exclusive rights automatically, for, say, 5 years, and after that, he has to take positive steps to protect his copyright up to a maximum of, say, 20 years.

    One has to balance the needs of the smaller authors and copyright holders with the larger copyright holders. Specifically, how much money would Disney lose by losing Mickey Mouse? How much does society lose by keeping a good work suppressed for the next hundred years “just in case” the holder (or, say, his great-great grandchildren, because the author sure as heck isn’t going to have a use for it 70 years after he’s dead) might want to make another few dollars?

  • Anonymous

    The thing is, “Libertarians” aren’t really a monobloc, and never have been. People whose fundamental concern is liberty are libertarians whether or not they call themselves that, and people whose fundamental concern is not liberty aren’t. If you are a libertarian, by definition, the economic consequences of liberty are, at best, secondary to liberty. I.E. liberty trumps business, capitalism, etc.
    If you read, say Benjamin Tucker, you will find an argument that the free market is incompatible with corporate hegemony.
    Now many “self-proclaimed” libertarians may be in fact, in favor of corporate hegemony. But either:
    A – they support government efforts to artificially prop-up big business (and many do, admittedly)
    B – they hold the same delusions about a free market that many leftists do (which is understandable, given the state of economic education today)

  • http://come.to/tekstadventure Branko Collin

    David, excellent suggestions. Larry Lessig and Eric Eldred have proposed a law along those lines, where a work would return to the public 50 years after its first publication, unless the copyright holder renew it.

    BTW, let me show you where I am coming from. I run a website about Dutch text adventures. These are a kind of computer game still produced today, but which had their heyday in the 1980s.

    In those days, games were distributed either on cassette tapes of floppy disks. Both are magnetic media with extremely short lifespans. You can imagine that without the many, many ‘criminals’ around the world who made illegal copies of these games, an entire part of our culture (and that part shaped a large part of my journey to adulthood) would have disappeared. In this case, even 50 years would not have helped; 5 to 10 would have been cutting it close.

    I try and contact authors of these games and ask them to release the games as freeware (or really any license they like). Sometimes I am successful, as with Dracula, the oldest Dutch text adventure. Unfortunately, the author could not find all the versions he made. The most prolific Dutch game writer of that time sees his work as a 1980s game author for the C64 as a chapter of a closed book, so a lot of his games (although some are available illegally) will probably not survive.

  • Daniel Arbuckle

    In my view, intellectual property is directly antagonistic to the concept of property as applied to physical objects. Intellectual property law means, fundamentally, that you can sit in your own garage, pick up a bunch of materials that you own, and build something that you *don’t* own. If you refuse to recognise the other party’s ownership of your construction, eventually people with guns come and make you give it up.

    That situation is definately not consistent with libertarian ideals.

  • http://www.livejournal.com/users/mkay422 Mike Kay

    This might be slightly offtopic, but nevertheless I hope it is interesting and related.

    1) In Russia the new copyright law had been enacted by Pres. V.Putin on July 28, 2004. This created a MAJOR public outcry. This law outlaws pretty much any online library. Note that online libraries in Russia have significantly different social meaning vs. the US. Consider for instance the site http://www.lib.ru – it carries about 5GB of texts in .txt format, including major Russian and Western classics (translations as well as some originals), poetry and contemporary literature. People consider reading a book (on paper OR online) as their _natural_right_. If necessary, they did it underground as “Samizdat” during the Soviet times, they do it openly now. Reprinting a book had always been considered an act of courage or otherwise a positive activity spreading the enlightment. It is not a habit however to even think of such “nonsence” as royalties, esp. if the original author has deceased. E.g. something like extension of copyright locks on the Mickey Mouse cause bewilderment and sarcasm.

    2) Significant problem with current copyright laws, its enforcement and the evolving technology is the rigid corporate structure, which is not flexible enough to embrace the new reality. For instance, if you consider a “liquid content”, the cost of PROCESSING the royalty payments on a single track according to the RIAA standards costs MORE, than the VALUE of the royalty. Moreover, the behemots of the recording industry have a very vague idea of how to proceed. So far they chose the administrative and legal actions vs. positive creativity. That’s sad. They tried to do something – e.g. about 150 mil. spent by Sony on the failed project to address the above reality; the emerging joint venture between Warner and Universal… Will see. It is reasonable to expect however that DRM-like and RIAA-like actions will have only limited success if at all, unless they work out a successful strategy for cost processing and redistribution. However if they succeed in policing rather than in business model evolution, that would be devastating. Here in the US we already face a Soviet-like reality (random checks in Boston T; pending prohibition of the photography in NYC Subway, library records subpoenas, etc). USSR operated as a single large corporation, including the policing of content/information redistribution. The different reason had been put on the banners (political rather than economical) but the outcome is the same. To top it off if we get draconian rules on redistribution of the INFORMATION and content, bringing the look’n'feel of everyday intellectual life very close to – NOT even a Soviet Union (where intellectuals always laughed off the System), but rather North Korea.

  • http://mcgath.blogspot.com garym

    I’ve been trying for some time to come up with a libertarian theory of intellectual property. Like physical property, intellectual property (when properly construed) represents a product of someone’s effort, and the creator should be entitled to have control over it and to reap its benefits. Unlike physical property, intellectual property can be “taken” without depriving the owner of the original. So the theory has to be somewhat different.

    Some tentative thoughts: To be claimed as a right under law, a creation should be non-trivial, and unlikely to be duplicated by others independently.

    With abusive intellectual property claims, such as trivial software patents, the patent holder can become the one who’s getting free benefit from the efforts of others.

  • http://phnk.com phnk

    phnk, the point about support for private property substitues is a good one. But I think odds are private DRM will never get far without government action (or?). Big collective action problem.
    (quoted from a comment by Tim Wu)

    Private DRM needs WIPO WCT/WPPT treaties to condemn DRM or RMI circumvention (WCT art 12/13 if I recall well). They also need effective enforcement and sanctioning (IP with teeth : TRIPS).

    Rather than government action, I would suggest international bodies support is requested.

  • dwitt

    to me, the whole concept of IP as it’s being promoted today is basically a ‘land grab’ by the business world–the original copywrite laws were generally well-balanced, providing for both the orginator, and the public good–the system has been gamed by large corporations, such as Disney, who can afford to hire lawyers, lobbyists, politicians to advance their interests–what’s worse is IP in the area of computer programming–far too many patents are being awarded for ‘innovations’ that are either overly broad, obvious to experts in the field, or covered by previous art–the effect of this is to stifle innovation, and to balkanize technology…

    the best analogy is comparing a computer Operating System to the highway system–with proprietary solutions, we’d end up with a bunch of toll roads, while with Free/Open Source software, it is a commons, built and maintained by the community!