A while ago at BHL, Andrew Cohen took notice of a New York Times article on some recent political compromises in the U.S. that might speed the passage of three proposed “free trade” agreements (with South Korea, Colombia and Panama). Andrew takes notice of one of the provisions of the agreements — that the deal includes authorization for a series of subsidies (including retraining and cash payouts) for U.S. workers whose jobs are offshored up through 2013. Then he asks:

The two things are separable of course: there is the free trade agreement (which may or may not be a genuine free trade agreement) and there is the so-called “trade adjustment assistance” that will help those whose jobs are lost …. Will this be overall good? I suspect so, but can’t be sure. In general, I am wary of “free trade agreements,” since they end up being anything but. If anyone has a better understanding of the situation, I’d be happy for input. How free is the free trade?

I’m much less uncertain, and much more pessimistic, about the agreements in question than Andrew is. But not especially because of “transitional” welfare programs like the one he mentions. Of course, I oppose that, because I oppose the welfare state as a whole. (And I oppose the welfare state as a whole because I oppose the state as a whole. Your mileage may vary.) But the major issue here is not so much with small-scale, explicitly time-limited welfare programs tacked on to the deal; it’s with the core of the agreements themselves. Getting rid of protectionist tariffs is a fine thing, and really economically beneficial — especially for working folks. But in my view neoliberal “free trade” agreements don’t get rid of protectionist tariffs; they swap out one form of protectionism for another.

That’s because how free the “free trade” in these agreements looks is going to depend on your views about so-called Intellectual Property. For reasons I’ve discussed elsewhere (and which have been handled in greater depth by Roderick Long and Kevin Carson), I think that the legal protection of copyrights and patents has nothing to do with genuine property rights, but really is a form of coercive monopoly, which suppresses peaceful competition and allows the IP-holder to extract monopoly profits from consumers, with the explicit aim of fattening profits to protect the business interests of the copyright- or patent-holder. (Now, many libertarians disagree with the anti-IP position; if you’re one of them, I won’t have much to satisfy you here, but the in-depth discussions I’ve linked may be more helpful. Or we can discuss in the comments.) However, while IP (on my view) is radically anticompetitive, and has nothing to do with — indeed, is the exact opposite of — genuine free trade, an extensive and uniform system of IP restrictions does smooth out the road for, and serve the commercial interests of, a number of well-placed First World corporations. As a result, every major FTA, from NAFTA through CAFTA and down to the FTAs proposed for South Korea, Panama, and Colombia has had a big, fat chapter on Intellectual Property, and the function of the chapter is always to institute a massive, synchronized hike in copyright and patent terms, penalties for infringement, and the police powers that governments can invoke to enforce IP restrictions.[1] For example, here is a brief summary of the IP chapter of KORUS FTA:

The KORUS FTA strengthens protection for intellectual property, including software, music, film, videos, and text.

For copyrighted works:

  • Extends copyright from life of the author plus 50 years to 70 years.
  • Protects temporary copies of copyrighted work (music, movies, text, etc.) on the Internet.
  • Prevents tampering with technical protection measures (TPMs). [This is essentially an implementation of the invasive powers granted under DMCA and ACTA, as discussed here --CJ.]
  • Criminalizes recording of movies in theaters.
  • Strengthens enforcement against Internet online piracy, holding liable those who profit from unauthorized downloading, and establishing penalties for end-user IPR piracy.

For patents:

  • Provides an extension of patent terms for undue delays in granting the original patent.
  • Abolishes the revocation of a patent due to non-usage.

For trademarks:

  • Requires the seizure, forfeiture, and destruction of counterfeit and pirated goods and the equipment used to produce them.
  • Deters IPR violators from shipping counterfeit products through Korean ports and free trade zones through new customs enforcement rules.
  • Sound and scent marks will receive trademark protections [!]. Introduces “first-in, first-in-right” to trademarks.
  • Protects Internet domain names.

KORUS FTA NOW: Benefits [sic] by Industry/Sector – Intellectual Property

In short, one of the major functions of KORUS FTA is to lengthen the terms of existing government monopolies, to escalate government enforcement of the monopolies, and to enlist legal power to clamp down on (mainly Korean) peaceful trade and competition with (mainly U.S.) IP holders. It’s clear enough how this serves the interests of a certain, politically fetishized form of corporate commerce (“trade” by multibillion dollar entertainment, technology and pharmaceutical businesses); but whether that’s an instance of
freeing markets, or invading markets in order to prop up the bottom line of big business, is going to depend on whether you see IP as a legitimate exercise of private property rights, or an anticompetitive privation of property rights for the protection of big players. For anti-IP libertarians, FTAs promise at best one step forward and two steps back — the easing of old-fashioned protectionist controls on commodities, in favor of creating and expanding protectionist controls on information and technology.

* * *

One other note on the political debate over the FTAs. In the comments on Andrew’s post, Fernando Teson has this to say about “trade adjustment” subsidies:

Libertarians (e.g., Gary Becker, Walter Block) generally reject re-training of workers displaced by imports, but we must remember that the policy, bad as it may be, is less bad than protectionist measures. Given the enormous difficulty of convincing the public of the advantages of unrestrained trade, free trade cum re-training may well be a second-best solution.

Another commenter, Aaron, has this to say in response:

But this brings up an interesting question, Professor – what’s the general preferred libertarian mitigation against the risk of having one’s career shipped overseas before you’re done with it? It seems that demanding a higher salary if you perceive a risk isn’t that workable, if the whole point is that you’re dealing with a price-sensitive employer. Saving to pay for one’s own retraining seems like a good option, but if you pick the wrong career to train for, you’re in trouble, and there’s pretty much no-one with a long-term interest (after any student loans are paid off) in seeing you get it right – after all, once they’re paid, they don’t care if you can get a new job.

Well, I can’t speak for Gary Becker, Walter Block, or Fernando Teson — let alone all libertarians. And I don’t have anything to offer at all on the policy question of how governors might best package free trade legislation (even if it were genuine free trade, rather than a faux-free FTA) in order to sell it to an anxious public. But what I can say for myself is that, as an Anarchist, I believe in DIY social transformation, and as a left-libertarian I think that free trade is best when it comes along with a robust culture of grassroots solidarity and mutual aid. So my view is that the best non-state means of mitigating against the risk of losing your job is twofold. One, you focus on getting rid of the state capitalist political controls which dispossess the poor and marginalized, constrain the options available to impoverished people, and make ordinary workers artificially dependent on corporate employers. (The basic problem here, as stated, is that the labor market is constrained in such a way that any particular worker is much more dispensable for his employer than any particular employment is for the worker. If that’s the result of free market processes, then perhaps it’s a problem for libertarian economic views; but if it is — as I contend — substantially the result of state capitalist controls on the direction and extent of market activity — in particular, oppressive political restrictions on the poor, and exploitative protections for established businesses — then that’s a problem for business as usual, but not for markets. The thing to do is not to “mitigate” the economic problem, but to get rid of the political problem that produces it.)

Second, while I think that removing constraints on individual workers is important (thus putting them in a better position to fall back on alternative resources, drive harder bargains, or make a living outside of wage-labor entirely), it’s also important to remember that — on a sufficiently rich conception of what’s in a market — a freed market is an individualist social order, not an antisocial one. What I mean is this: it’s a mistake to think that the only available options are for (a) government-organized safety nets or (b) uncoordinated personal measures, leaving workers with only the personal savings or insurance arrangements that they can individually provide for. There is a third option: (c) consensual socially-organized safety nets, providing grassroots mutual aid. What I’ve said elsewhere about community-based mutual aid in medical care can be applied broadly to grassroots efforts where workers pool resources to help cope with many different kinds of hard times or catastrophic costs:

Pervasive confusion of the existing government-supported anticompetitive corporate health care market with medical services provided by a genuinely freed market leads to two related confusions about what a real market in medicine would mean.

First is the widespread, but ultimately ridiculous notion that free markets would require individual workers to rely only on personal savings or expensive corporate health insurance to cover high medical costs. In fact in the late nineteenth and early twentieth centuries, freer medical markets actually offered many competitive, noncorporate means for working folks to get affordable, decent health care for themselves by pooling resources through free-market bargaining and free association. As libertarian scholars David Beito and Roderick Long have discussed, “contract practice” agreements, organized by low-income workers and primarily negotiated through unions, mutual-aid societies, and fraternal lodges, provided reliable medical care for 20-50 percent of workers in English-speaking countries for about one day’s wages per year. These affordable arrangements were ultimately driven out not by the ruthlessness of the free market, but rather by deliberate assaults by government and the government-privileged medical guilds.

The anti-state response to economic pinches and hard transitions is — grassroots community organizing.

* * *

Footnotes

  1. Typically, these escalations in IP protection and enforcement are designed to bring less-restrictive laws in U.S. trading partners up to the insanely restrictive state of copyright and patent law inflicted by the U.S. government.
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  • Andrew Cohen

    Charles-

    First: I’m glad to have you writing here on BHL!  Welcome!

    Second, I enjoyed your first piece here very much and this one, perhaps, even more.  I’m still not sure if I’d go the full anarchist route, but I probably agree with 98% of what you say here.  In particular:

    “However, while IP (on my view) is radically anticompetitive, and has nothing to do with — indeed, is the exact opposite of — genuine free trade, an extensive and uniform system of IP restrictions does smooth out the road for, and serve the commercial interests of, a number of well-placed First World corporations.”and
    “I believe in DIY social transformation, and as a left-libertarian I think that free trade is best when it comes along with a robust culture of grassroots solidarity and mutual aid.”

    Thanks for writing this.  I suspected this was what was really going on with those supposed “free trade” agreements, but didn’t get the chance to read the crazy things.

    Andrew

  • http://pulse.yahoo.com/_N6HQ4Y5ZPT4HGXE3EPX3Z7KH2E BerserkRL

    The second link to me (toward the end of the post) should be:   

    http://praxeology.net/libertariannation/a/f12l3.html

  • Pingback: Cordial and Sanguine, Part 10

  • Anonymous

    Radgeek,
    I would appreciate a clarification of your position, based on an answer to the following scenario. Suppose we live in a state-free world. So, obviously there is no government-enforced IP. Bill, a software developer, figures out a way to do something on computers and mobile devices that is both revolutionary and extremely useful. Many millions of people wish to obtain this software from him. Using technological means available to him, he designs the product so that any attempt to reverse-engineer or copy it causes the software to self-destruct, like the old “Mission Impossible” tapes. All purchasers understand that this will happen, and if it makes the hypothetical easier for you, we can assume that they freely and formally consent to this condition. Bill sells the product for $100 per unit, and gets filthy, indeed obscenely rich. Is there any problem here as far as you are concerned? Thanks.

    • http://twitter.com/radgeek radgeek

      Mark,

      I think that the answer depends on what you mean by “a problem.”

      I don’t think that Bill’s hypothetical product violates anyone’s rights, or constitutes an unjust privilege. In that respect it is in my view radically unlike government copyright or patent privileges. People have a right to do whatever they want by way of technological or contractual limitations on copying; and if Bill’s customers are willing to buy  his stuff under those terms, then Bill’s got a right to the money he makes from the consensual exchange. But I would argue that government copyrights and patents impose restrictions far beyond what Bill’s hypothetical technological protection imposes, and on people who Bill could never have imposed restrictions on without the grant of an invasive government privilege.

      I do think that Bill’s hypothetical product has a “problem” in the sense that it is crappy, deliberately damaged software, and that Bill has a problem (an ethical problem) in the sense that he is treating his customers poorly. But while that may be related in some interesting or important ways to the issue of economic liberty involved in IP laws, it is as I see it a separate issue. DRM-ed or contractually locked-down software is in my view bad software, but consistent with a free market; the best way to respond to someone who’s treating their customers badly in a free market is for customers to boycott them, and competitors to enter the market who will treat customers better; whereas IP laws impose coercive restrictions on peaceful competition, and the only way to get a free market is to take no notice of them, except to tread them underfoot.

      • Anonymous

        Thanks for the clarification. I agree that the way IP law and practice has actually evolved in our society confers unjust advantage on patent holders (I am less offended by the protections offered authors like J.K. Rowling), who use the threat of litigation to stiffle competition and discourage new entrants. However, I am glad you agree this is a separate issue from whether authors/inventors are morally entitled to benefit commercially from their contributions to society.

        I guess I have different moral intuitions about whether Bill’s software is “crappy.” For a $100 purchase price the buyer may be getting software that enables him/her to generate $500 in additional income or to save 100 hours of time that wouild be rerquired be required to do things the old way. Indeed, the very fact that his customers are willing to pay the $100 implies that they believe they are getting more than $100 in value from the product. Obviously, the more useful and innovative the product, the more Bill can charge. A new product that is only a very marginal improvement over existing technology will not be very profitable to the inventor. 

         

      • Anonymous

        One more thing, and I mean this entirely as praise and not at all as criticism, but for the reasons explained below, I find nothing leftist in your views. I believe that people’s natural endowments, talents, and capacity for hard work are distributed along the familiar bell curve. In the absence of the state, and if all transactions between persons are of a voluntary nature, the financial and social rewards for such attributes would be distributed along this same curve. I see absolutely nothing wrong with this, although as a minimum state libertarian I do support a safety net for the innocent needy, and if necessary cumpulsory taxation to fund it.

        This huge disparity in wealth will be decried by egalitarians, but I see nothing, I repeat nothing, intrinsically valuable about equality. If equality is an inherent good, there should be something good about a situation where the entire world and everyone in it is as desparately poor as the peasants of North Korea. When someone can explain to me what is good about such a situation, I will reconsider. 

  • http://www.facebook.com/hogeye Hogeye Bill

    My argument against so-called “free trade agreements” is much simpler. Since they are deals between State rulers, they are actually *managed* trade agreements. Free trade requires no agreements or treaties – only that all tariffs, subsidies, quotas and other government interference with trade be ceased immediately. This can be done unilaterally – no treaty necessary.

    • http://twitter.com/radgeek radgeek

      Bill,

      I agree with you about that, but there are many libertarians who want to believe in the possibilities of reform through half-hearted statist measures, and they will inevitably say something like, “Well, yes, clearly this is managed trade, not real free trade; but it’s less controlled and less unfree than the legal regime that came before it!”  My point is that in at least one important respect — when it comes to Intellectual Protectionism — it’s not even that. In that respect, neoliberal FTAs are actually much worse, and represent substantially more legal restriction, than the status quo ante.

      • http://www.facebook.com/zgochenour Zac Gochenour

        Every FTA needs to be independently evaluated. “Substantially more legal restriction” is quite vague; I prefer to evaluate these agreements based on outcomes. If you use trade volume and productivity as measures, most “neoliberal FTAs” are a significant improvement on the status quo. A philosophical stance against IP is just fine but thoroughly unconvincing if that is your basis for opposing welfare-improving policies in the economic sense. I’m willing to buy that intellectual protectionism reduces innovation in the long run, but I doubt the expansion of IP through FTAs is much a cost at all compared to the obvious benefits of reducing trade barriers.

        • http://twitter.com/radgeek radgeek

          “Substantially more legal restriction” is quite vague; …

          Well, I did give some specific details. KORUS FTA for example would increase the length of copyright terms in South Korea by a full 20 years; it would enact specific criminal laws to prohibit technological methods of unlocking DRM; etc.

          If you use trade volume and productivity as measures …

          I don’t. Like most econometrics, these figures are interesting but often misleading, and more or less inevitably commit you to some serious broken-window fallacies if you try to get much mileage out of them when it comes to evaluating policies that deliberately ratchet up costs of certain privileged classes of goods. Paying money out for a monopolist-approved copy of Microsoft Office counts towards an increased nominal “trade volume;” getting a “pirated” copy for free does not. The privilege juices formalized commerce but at the expense of markets; and it is in my view the latter, not the former, that represents a net increase in economic prosperity, whereas the former is merely a capture of productivity by the monopolists, with a significant deadweight loss.

          A philosophical stance against IP is just fine but thoroughly
          unconvincing if that is your basis for opposing welfare-improving
          policies in the economic sense.

          Welfare-improving for whom? Not for people who depend on generic medications to keep themselves alive, or who make a living selling copied entertainment and software, or …. Now, maybe you think that their losses will be less on the whole than the gains for other people who are currently prohibited and taxed by government in other ways. I don’t know — I don’t generally think much of efforts to compare the violations inflicted on one group of people to the violations inflicted on another to see who has it worse, and who ought to get stuck with the gun in their face. But be that as it may, even if there is some argument to be made for neoliberal FTAs as net “welfare-improving,” in spite of the costs that they inflict on people who depend on technological products, it is certainly not an argument for passing them off as advances for “Free Trade.” What they are really — whether for good or for ill — is swapping one kind of protectionism for another.

  • http://www.facebook.com/people/Keith-Waters/1286586925 Keith Waters

    Speaking of a certain writer, should someone have been able to buy a subsequent Harry Potter book as soon as it was for sale, print it, distribute it and keep all the profits?  What level of protection, if any, should there be?

    • http://twitter.com/radgeek radgeek

      Keith Waters:

      Speaking of a certain writer, should someone have been able to buy a subsequent Harry Potter book as soon as it was for sale, print it, distribute it and keep all the profits?

      Yes, in my view, they can do that. My view is that so long as they can do so without committing fraud, or invading Ms. Rowling’s person or property (*), people have got a perfect right to do that, because people have a perfect right to compete in absolutely any way that doesn’t involve fraud or invading the person or property (*) of an identifiable victim. The market for Harry Potter books would in this respect be no different from the market for Dickens books — anyone who wants to can put out an edition of A Tale of Two Cities, and keep all the profits that they make from selling it.

      Whether it’s the polite, or even ethical, thing to do is a separate question, and depends on the circumstances. In this particular case, when you’re dealing with a living author and a recent book, I think that there are some good reasons to favor buying books from the original author or her agents. But not for forcing other people to do the same; and in any case only up to a certain point: at some point, if Rowling has trouble selling her authorized edition in a competitive market, then that may be a worthwhile market signal that she ought to drop the price, or find a different way to market the book.

      What level of protection, if any, should there be?

      My view is that there should be only social protections, not legal protections. Since we’re talking about blockbuster fantasy novels, the “Second Tolkien Story” in Roderick Long’s essay on IP might be apropos.

      (* Of course by this I mean property in forms other than so-called “intellectual property;” because I think that the latter is not a genuine form of property at all.)

  • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

    This is entertaining.   I guess this is the kind of mashup that happens when the occasionally sacrosanct property rights of libertarian radical individualists run up against the content consumption needs of Generation Pirate.   Maybe it’s just one big self-contradictory, adolescent ball of personal entitlement which blows whichever ideological direction is most convenient?

    • http://twitter.com/radgeek radgeek

      Maybe. But a dimestore psychoanalysis of “libertarian radical individualists” and These Kids Today is not the same thing as an argument against what I say above. Which is, I should note, not an attack on property rights, but rather an attack on copyrights and patents based on a radical application of individual property rights.

      As for “occasionally sacrosanct,” well.

      Libertarianism is clearly the most, perhaps the only truly radical movement in America. It grasps the problems of society by the roots. It is not reformist in any sense. It is revolutionary in every sense.
      Because so many of its people, however, have come from the right there remains about it at least an aura or, perhaps, miasma of defensiveness, as though its interests really center in, for instance, defending private property. The truth, of course, is that libertarianism wants to advance principles of property but that it in no way wishes to defend, willy nilly, all property which now is called private.
      Much of that property is stolen. Much is of dubious title. All of it is deeply intertwined with an immoral, coercive state system which has condoned, built on, and profited from slavery; has expanded through and exploited a brutal and aggressive imperial and colonial foreign policy, and continues
      to hold the people in a roughly serf-master relationship to political-economic power concentrations. –Karl Hess (1969), “Where Are the Specifics?”

      You might think that the willingness to challenge bogus claims of “property” even when it cuts against the grain of conventional “pro-business” economic viewpoints, and even when it means challenging the socioeconomically privileged business models of Fortune 500 corporations is a sign that the libertarian in question has thought things through, is not just repeating pro-business slogans, and perhaps even has some principles that are not just code for corporate capitalism or established business interests. You might even take such an interpretation if you disagree with everything that the author says; it’s perfectly possible for a position to be consistent and principled but wrong. But if you do intend to take the least charitable possible interpretation of my dissent from neoliberalism and “pro-business” orthodoxy, that is I suppose your prerogative.

      • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

        OK, well what is the criterion used to distinguish an erroneously radical application of correct  rights principles from a correct application of erroneously radical rights principles? Couldn’t the insistence on property rights to any kind of property – not just intellectual property – give rise to the kinds of legal protection of monopolies you are right to worry about?

        After all, someone could acquire monopoly power over a key resource either through original acquisition, or through free and unconquered exchange of the kinds libertarians approve.  Why does it matter whether the monopoly is over a document format or mineral resource?

        My suggestion is that perhaps the phenomenon you are worried about reveals a flaw in libertarianism itself, but that it is a phenomenon some younger libertarians only seem to notice when the protected property in question is the sort of thing people of their generation have grown accustomed to stealing without guilt.

        • GaffiGubbi

          1. There is a fundamental difference between “natural” property and intellectual property: property implies scarcity, thus intellectual property creates artificial scarcity. There needs to be some way of distinguishing people’s rights over physical things, and Lockean homesteading or mutualist use/occupancy rules do a pretty good job at that. You raise a good point about natural resources, though (although if ownership were strictly tied to use and/or labor, I doubt the natural monopolies you propose would be nearly as prevalent or harmful as they are with patent/copyright monopolies), and some libertarians (like Hoppe) do seem to treat property as almost like a means to personal tyrannies and monopolies. However, that’s not the only view – geolibertarians (Henry George etc.) are basically socialists on land and other natural resources, but radical libertarians on everything else. Some market anarchists have communal ideas about natural resources as well.

          2. Criticism of intellectual property in libertarian circles is not a new idea. Benjamin Tucker and Pierre-Joseph Proudhon, two original market anarchists, were staunchly against IP, as were many other “Ricardian socialists” (Not to say all classical liberals or anarchists were against it, clearly many saw it as efficient and just). Murray Rothbard, when reformulating old Lockean ideas into his anarcho-capitalist ethics, criticized patents as being coercive state-granted monopolies incompatible with principles of property. (He did, however, defend copyrights as contractual agreements, although he hardly could have seen the impossibility of enforcing it in today’s world)

          Anyway, your hypothesis that libertarians only criticize IP because it’s the thing to do with today’s hipster pirates and those darn Anonymous skateboarding on the sidewalk is not only false, but demeaning, as if libertarian ideas were just feeble weather vanes – in reality most of them are more congruent with the general libertarian body of thought* than any other political philosophy. Rather it’s that young civil libertarian-minded people who were raised by the internet and who criticize IP have become more visible, to which (mainly) left-libertarians have responded “Yep, you’ve stumbled upon a libertarian principle. Come join our battle against the state!”

          *I don’t advocate a Lockean property regime, NAP or other deontological first principles myself, but I respect them and I’m just pointing out that anti-IP positions don’t simply stem out of whim but they can be argued for convincingly.

          • Anonymous

            I think the distinction you attempt to draw in pt. #1 is rather unpromising. Here on planet Earth right now unclaimed natural resources are rather scarce. Opponents of private property will say that this scarcity is “artificial” precisely because of this institution. Thus, when you say that IP creates an “artificial” scarcity you are simply begging the question against those who support IP.

            They will say that IP justly rewards inventors and authors for their efforts the same way that recognition of property rights rewards homesteaders. You need an argument as to why one is “artificial” and the other not. Patent protection only lasts for a fixed term (20 years, I think), and more importantly the “scarcity” idea seems to rest on the dubious claim that there are a finite nuumbers of things that can be invented, novels written, etc. Somebody has patented the personal computer; fine, invent a better one, or software or a printer or something else altogether.

          • Anonymous

            I think the distinction you attempt to draw in pt. #1 is rather unpromising. Here on planet Earth right now unclaimed natural resources are rather scarce. Opponents of private property will say that this scarcity is “artificial” precisely because of this institution. Thus, when you say that IP creates an “artificial” scarcity you are simply begging the question against those who support IP.

            They will say that IP justly rewards inventors and authors for their efforts the same way that recognition of property rights rewards homesteaders. You need an argument as to why one is “artificial” and the other not. Patent protection only lasts for a fixed term (20 years, I think), and more importantly the “scarcity” idea seems to rest on the dubious claim that there are a finite nuumbers of things that can be invented, novels written, etc. Somebody has patented the personal computer; fine, invent a better one, or software or a printer or something else altogether.

          • http://twitter.com/radgeek radgeek

            Here on planet Earth right now unclaimed natural resources are rather scarce.

            Sure –but largely on account of political seizures and grants of fraudulent “titles” and monopoly concessions to people who never homesteaded the resource. The Ibn-Sauds claim that they have a right to all the oil beneath Saudi Arabia, but not because of anything they did to earn it; they’ve laid an exclusive claim to tremendously more natural resources than they ever could have worked to develop solely by virtue of conquest and occupation. The same is true of, say, nationalized and then “privatized” (i.e., sold through a government monopoly) water in Bolivia. The same is also true of most real estate development in big, dense American cities (where it is very largely controlled by eminent domain and political planning processes) as well as in fast-developing suburban and exurban tracts in the American West (the majority of which is still, remember, “owned” by the United States government, and deliberately closed off to small-scale development or homesteading).

            Opponents of private property will say that this scarcity is “artificial” precisely because of this institution.

            Well, I think that they are right to call it artificial. Of course they are wrong about the diagnosis: most of the worldwide engrossment of holdings in land, water, oil, metals, etc. has absolutely nothing to do with private property and everything to do with legally fabricated titles.

          • Anonymous

            I agree with at least most of what you said, but I am a little unclear about how it responds to my argument. The U.S. Patent Office granted 245,000 patents in 2010, so while I think our patent laws and practice are a huge mess, I don’t think they have created an “artificial scarcity” of things to invent, while there is an actual scarcity of things to appropriate in the first instance (although perhaps there shouldn’t be). So, I am still looking for the logic of granting ownership rights to homesteaders, but denying them to inventors.

            Indeed, it seems to me that the moral justification for the two classes of claims is essentially the same. A homesteader does not create the earth, but by transforming it into a farm, ranch, etc., he/she creates value, and on that basis we grant rights to protect what was created. An inventor does not create the laws of nature, but he/she relies on these laws to produce original inventions, which have value.

            It is true that the way other people dispossess honesteaders and inventors of the value they create is different. For homesteaders this is done by physically taking the property on a nonconsensual basis, while with inventors it is by copying the invention on a nonconsensual basis. But I doubt that this difference is sufficient to justify the different moral treatment you propose.

          • http://twitter.com/radgeek radgeek

            Mark,

            I agree with at least most of what you said, but I am a little unclear about how it responds to my argument.

            It wasn’t primarily intended as a response to your argument on IP; it was intended as a tangential remark on an issue raised by your comment. Sorry; I should have been clearer about that.

            So, I am still looking for the logic of granting ownership rights to homesteaders, but denying them to inventors.

            Well, the issue is what “ownership rights” would mean in each context, and I do fear that you’re right that the common talk of “scarcity” typically obscures the issue more than it reveals it. The difference-in-kind here is better  expressed in terms of two features: (1) the non-rivalrous character of intellectual objects, and (2) the inalienability of (mental) self-ownership.

            In the case of a homesteading claim, if I homestead 40 acres for farming, and someone comes along five months later, fences off 20 acres, cuts down my fig trees, tears up my tomatoes, and starts using half of the land to build their own house and a paddock for their horses, then I can clearly specify what their use of the land has deprived me of: the use of the 20 acres, the fig trees, and the tomatoes.

            But now say that I write a story about Mideast politics which I intend to publish on my blog; and after I’ve done so, someone comes along, finds my blog, and, without first asking me for permission, grabs the story to publish it in the Journal of Historical Review, a rag I never would have wanted it published in. (*) This would be … unpleasant. But  of what have I been deprived? I haven’t been deprived of the story — that’s an abstract object, which is hardly the sort of thing that can be seized from me or destroyed; and I haven’t been deprived of my copy of the story either — that’s still safe at home on my blog.  Reason being that the physical copies are simply distinct objects (I have mine and JHR has theirs); and the intellectual objects expressed by the physical copies are non-rivalrous — one person’s enjoyment of them doesn’t diminish another person’s access to them.

            You might say that I’ve been deprived of control over my words; but if I let loose my ideas so that they end up in someone else’s brain, I don’t think I could possibly claim to control all instances of my words without claiming that I own other people’s minds; and I don’t. Or you might say that I’ve been deprived somehow of the sale value of my work, seeing as how the copyist didn’t pay me. But again, a sale price is what someone else is willing to pay in a market transaction; it’s a part of someone else’s mental dispositions, not a possession that I can own. I may be deprived of some ancillary goods — for example, if JHR prints my name on their list of contributors, that may hurt my reputation. But my reputation, again, is simply what other people think of me, and I don’t own other people’s opinions. Etc.

            Of course, JHR could have voluntarily bound themselves to terms that would limit their freedom of action — for example, by agreeing to a contract with me that forbade them from republishing my stuff without my permission. But they haven’t.

            (* This actually happened to a friend of mine. It was, indeed, unpleasant. In the extreme. But I would argue not a violation of his individual rights.)

          • Anonymous

            Thanks for the clarification, which is quite helpful. Although I better understand the basis for the distinction, I still don’t find it convincing (perhaps the fault is mine). I note that in your analysis of the homesteading case there is no reference to the mental state of the wrong-doer, just the effect of the act. The wrong simply consists in taking from the homesteader part of the value he/she created.

            But, in analyzing the IP case, you write: “Or you might say that I’ve been deprived somehow of the sale value of my work, seeing as how the copyist didn’t pay me. But again, a sale price is what someone else is willing to pay in a market transaction; it’s a part of someone else’s mental dispositions, not a possession that I can own.” Here, for some reason, we are interested in drawing a distinction between what was taken nonconsensually (the voluntary sales price) and the takers “mental dispositions” (which the author cannot claim).

            This seems “metaphysical” to me in an unattractive way. I, as the author, have no interest in the taker’s mental dispositions, and I certainly don’t want to “own” them, I only care that he has taken value from me, just as the homesteader doesn’t care about the taker’s motives. What unites the two cases in that the wrong-doer takes something that doesn’t belong to him. I am not saying that it is impossible to distinguish the two types of cases in some fashion, but I think that–as was so often said in law school–it is a distinction without a difference.

          • Anonymous

            Mark,

            The crucial difference between the two types of cases is that the homesteader has lost something, but the author hasn’t.

          • Anonymous

            The author loses control of his work, and the compensation he would have received for use, were his IP rights respected.

          • http://pulse.yahoo.com/_KK5W5RZUZ7G3MRUNUVTC4WXO5I Dan

            You know the future, do ya?

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            As in other cases, I view this issue as a social question, not one to be settled by a priori moralism generating claims about the existence or absence of individual rights.

            The most valuable individual products of intellectual and artistic activity require discipline, application and time in order to be brought into existence.  And those individual works of excellence are usually built on a foundation of knowledge, sensibility and skill whose construction called for a substantial prior investment on the part of the works’ makers.  If these makers are not able to build an economically sustainable and rewarding life around their creative activity, they will be much less likely to produce works of excellence.

            Now personally, I am willing to consider all sorts of social arrangements for fostering creative work in the arts and sciences.   But some of these arrangements contain socialistic elements that I doubt libertarians would find congenial.  Other traditional conservative approaches depend very much on the vicissitudes of patronage and concentrated surplus wealth, and thus make it very likely that the works produced will replicate the values, flatter the prerogatives and support the vested interests of the most privileged members of the society.  In addition, those patrons are not all selfless, and might demand some kind of return on their investment that will be hard to win without a system of intellectual property.

        • http://twitter.com/radgeek radgeek

          My suggestion is that perhaps the phenomenon you are worried about reveals a flaw in libertarianism itself….

          As you please. But what’s the flaw it reveals? That libertarianism itself condemns IP? If so, I see that as a virtue, not a vice, of libertarianism. That libertarianism leads people to worry about, and have to seriously consider, whether or not common legal claims of proprietary interest really are morally legitimate? That also seems like a net positive to me. That there is some kind of contradiction between being in favor of principles of private property, but against a particular set of government-created legal claims? If so, you’d have to tell me what the contradiction actually is, which you haven’t yet.

          Of course, if you’re for IP restrictions (as your repeated question-begging comments about “theft,” etc. would seem to indicate), and if libertarianism is against it, then that may be another reason you have to reject libertarianism. In which case, fine, but it’s not yet evidence that the libertarian case against IP is somehow inconsistent or hypocritical.

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            I think private property is a human institution, a product of customary and positive law, and that while it is a very valuable institution providing for the existence of stable markets, habits of long-term saving and investment, and the prosperity those institutions bring, it is also very much a defeasible institution, and legislators have ample reasons to override or delimit property claims in certain circumstances, when the benefits of the override exceed the costs.

            I have no settled views on intellectual property, or the desirability of this or that intellectual property law.   I will just say that crafting social institutions governing the production and dissemination of works of intellect is a challenge, particularly these days as we grapple with the social and economic impact of new communications technologies, and laws and conceptual habits that can barely keep up with the innovations.

            Surely libertarianism itself does not condemn intellectual property, since many seemingly clear-headed libertarians believe in the existence of intellectual property and support institutions for protecting intellectual property.   Your views must depend on adding some additional premises to libertarianism.

            The flaw I was suggesting in libertarianism is that its  insistence on the inviolability of property rights and on the moral and social acceptability of whatever distributions of property result from free exchange of private property runs up hard against the problem of extreme concentrations of economic power – including monopoly and oligopoly – no matter what kind of property or purported property we consider.  So I am suggesting that you consider the possibility that the special problem you see with the legitimation of inviolable intellectual property claims is just as much a potential problem with insisting on the inviolability of any property claims, and therefore points to a general problem with libertarianism itself.

            My crack about stealing was an ad hominem dig at what often appears to me as hypocrisy.   I’m afraid I see a lot of younger libertarians as simply avaricious egoists, defending a selfish philosophy of Me-ism.   They want things for themselves, and want no ties to others of which they are not fully in charge.  If the thing the want is something that current law or custom regards as lying in their possession, they will insist on the sacred rules of property and the wrongness of that thing being taken away from them.  But if the thing they want is something that current law or custom deems to lie in the possession of someone else – say on someone’s computer hard drive – they will insist that there must be something wrong with the existing rules of property.

            But no doubt you have principled reasons for distinguishing real property from so-called intellectual property.

          • http://twitter.com/radgeek radgeek

            Surely libertarianism itself does not condemn intellectual property,
            since many seemingly clear-headed libertarians believe in the existence
            of intellectual property and support institutions for protecting
            intellectual property.

            Well, of course the conclusion there doesn’t actually follow at all from the premise. “Libertarianism itself” may have implications of which “many seemingly clear-headed libertarians” are unaware. Frege was not aware that his Grundgesaetze system contradicted itself, and if you asked him (without showing him the demonstration) whether it did, he would have said that it did not. But it did. Similarly, if libertarianism has any core commitments with extensive implications, which cannot always all be encompassed by a given libertarian, then there may be clear-headed libertarians who endorse a principle (like the nonaggression principle, or the libertarian case against protectionism) without realizing that it entails a  particular conclusion on IP restrictions.

            I’m afraid I see a lot of younger libertarians as simply avaricious egoists, defending a selfish philosophy of Me-ism.

            Well, whatever; but you may be interested to know that libertarian opposition to IP goes back well into the 19th century (see for example Benjamin Tucker’s writing on it — he called it “the patent monopoly,” but he explicitly intended the criticism to apply to patents, copyrights, and any other form of “property in ideas”). Meanwhile, one of the most vigorous defenders of IP restrictions within the libertarian movement (and the proximate source of most explicit defenses of IP in contemporary libertarian debates) was Ayn Rand, author of The Virtue of Selfishness. In any case, the “selfish” ground here is a contested issue — I myself make my living in writing and technology (I am a freelancer and a web developer, depending on the occasion), so you might think that my own material interests would be served by trying to lock down my products under conventional copyright law. Certainly, most of my colleagues believe that their material interests are best served that way. But then why doesn’t the interest of IP advocates who insist that they have a right to a near-perpetual wage, insulated from market competition, for work that they finished years or decades ago, deserve remark? Why are peaceful consumers to be singled out for criticism of their “selfishness,” but belligerent copyright holders, trying to protect their financial interests at the expense of other people’s life savings, not? Certainly I don’t think that Disney’s role in lobbying for upholding strong copyright laws, say, or Roche’s role in demanding extensive and well-protected and globalized patents, is an example of disinterested concern for the public good.

            But if the thing they want is something that current law or custom deems
            to lie in the possession of someone else – say on someone’s computer
            hard drive …

            Good lord, what are you talking about? Nobody is talking about seizing “someone else’s hard drive” in order to get pirated movies (say). We’re talking about consensual copying and sharing  of information, in which  Jones freely offers Smith a copy off of her hard drive, and Smith picks it up. Neither action harms anyone’s hard drive, or deprives anyone — not even the original producer of the music or the movie or whatever — of anything that was in her possession before. (She still has quite as many copies of the movie as she had before; the difference is that now she has one, and Jones has one, and Smith has one too.)

            When people run about stealing hard drives, I’m happy to condemn that — as the theft of a hard drive.

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            Good lord, what are you talking about? Nobody is talking about seizing “someone else’s hard drive” in order to get pirated movies (say). We’re talking about consensual copying and sharing  of information, in which  Jones freely offers Smith a copy off of her hard drive, and Smith picks it up. Neither action harms anyone’s hard drive, or deprives anyone — not even the original producer of the music or the movie or whatever — of anything that was in her possession before.

            Defenders of intellectual property rights would say that your decision to freely share the contents of your hard drive with me is only of weight if the contents of your hard drive consist only of things you have a right to share with me.  If they instead partly consist of things you do not have a right to share with me, then when you share them with me you are trafficking in stolen goods.

            The question you have raised is what possession of mine is lost when some intellectual product is transferred to someone else via copying, given that I still possess just as much of the words, music or whatever that was stored in whichever kind of medium they were stored in, including perhaps my own brain. I would say that what is possessed and lost is power.

            Suppose I possess a magic dog which can perfectly self-replicate at my command.  When it does this, I don’t lose any of my original dog.  I can still pet him and play with him and walk him.   But now someone else can enjoy an identically similar dog.  Assume that the replicated dogs cannot themselves self-replicate.   My possession of this dog constitutes the possession of a certain kind of magic power to affect and influence others.  People sometimes admire my dog and ask where they can get one like him.    I bestow dogs on those I like and generally don’t bestow them on those I dislike.   And as the possessor of this magic power I am in a position to win all sorts of esteem and favors from people.   My power is surely a valuable possession.  I value the effects I can produce in others, in part because I might selflessly value those changes induced in others for the sake of others, and in part because I value the changes induced in others because those changes in turn generate further effects that redound to my benefit.

            Now suppose through some mutation one of the replicated dogs acquires the ability to self-replicate, and that dog’s replicants also inherit the ability to self-replicate.  As a result of this natural event, I have certainly lost something valuable. A power I once had is lost.  I was once the sole source of these highly sought dogs.   Now, not only have I ceased being the sole source of the dogs, but the dogs themselves are no longer scarce, and are not as much esteemed. 

            In the social world, the powers one has often depend on institutionalized social relations.  If these institutions are altered, something one possessed can, as a result, be taken away.

            Suppose I am a musician whose skills enable him, through the use of his instruments to produce certain experiences in the minds of a listener.   Those instruments may also include recording equipment which others do not possess that permits the transmission from musician to listener to occur across time and space.    Again, I possess a sort of magic power that others lack.   Now suppose the recording equipment I possessed becomes widely available and can be used to copy the original recording.  Have I lost a power I once possessed?  Not necessarily.   Laws and customs might prevail which prevent the recording from being copied.  But as soon as others are permitted to make copies, then a power I once possessed has been taken away from me.

            I’m not a libertarian, so this doesn’t seem necessarily  awful to me.  I look at things from the standpoint of overall value or utility, and accept that taking things from people can be justified if some other value of sufficient weight is served.  But I don’t think we should deny that something has been taken away.

    • http://blog.hecker.org/ Frank Hecker

      Dan, to add to the comments by GaffiGubbi and others, this really is not a case of “libertarian radical individualists” finding common cause with “Generation Pirate”.  There is a thriving “free culture” movement that has existed for some time now that is focused on promoting the creation and distribution of freely-usable and remixable cultural artifacts; people in that movement do have philosophical objections to the current copyright regime, but in general they don’t personally or as a matter of policy practice or condone the sorts of actions associated with the “Generation Pirate” stereotype. In fact, one of the most notable products of that movement is the set of “Creative Commons” copyright licenses under which creators can distribute their work.

      The free culture movement in turn arose in large part out of the free software / open source movement, which dates back to the early 1980s, well before we had MP3s or a consumer-accessible Internet by which to distribute them. The primary figure associated with that movement was and is the software developer Richard Stallman, who created the GNU General Public License (GPL) that served as the inspiration for the Creative Commons licenses. I’ve dealt with a lot of people in the free software movement, and again they are the polar opposite of the “file-trading pirate” stereotype; in general they’re very scrupulous about respecting copyright, and many of them know more about copyright law than the typical lawyer.

      Stallman’s writings have been pretty influential within these movements, and are well worth checking out; his essays are collected in the book “Free Software Free Society“, which you can download at no charge. See in particular “The GNU Manifesto”, “Why Software Should Not Have Owners”, and “Did You Say Intellectual Property? It’s a Seductive Mirage” for comments very germane to the topic of this post. (The book also has a nice foreword by Larry Lessig, who founded Creative Commons.) Not everybody in the free culture / free software / open source world agrees with Stallman (including me), but he’s sort of like John Rawls in the sense that pretty much everything written within and about that movement in the last 30 years is a reaction (pro or con) to Stallman’s ideas.

      • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

        Frank, I can appreciate the ideas and impulses behind the free culture movement.  But those ideas, to the extent they are coherent, point in the direction of socialism – or at least the socialization of the production and enjoyment of goods of a certain kind.  What makes me dubious is the attempt to combine these socialistic free culture ideas with libertarianism.

        Personally, I can’t get used to the idea that anything that I enjoy due primarily to the labor of another is something I ought to enjoy for free.  In some way, that labor needs to be compensated; or else we undermine the possibility of sustainable systems in which people are willing to engage in that kind of labor.   But I do believe there are important practical problems in the production and economization of certain kinds of goods that provide reasons for thinking it is advisable that the systems for the production and enjoyment of those kinds of goods be governed by socialistic rules.

        • http://hecker.org/ Frank Hecker

          I’m not sure exactly what you mean by the “socialization of the production and enjoyment of goods of a certain kind”. To give one example of how this works in practice, production of free software is typically subsidized by for-profit companies that use the software either internally or in their products (as, for example, Apple uses the WebKit browser software on the iPad); such companies can’t just free-ride on the work of others because they need particular features and want some control over the direction of the software’s development. Would you consider this “socialization of production and enjoyment”?

          As another example, musicians who distribute free MP3s of their work under Creative Commons licenses typically do so to promote their paid performances and encourage sales of physical merchandise such as T-shirts, CD or vinyl recordings (e.g., as commemorative items). Would you consider this also “socialization of production and enjoyment”? To me both examples are simply cases of information goods being considered as ancillary goods to what is actually being sold within an overall market framework.

          “Personally, I can’t get used to the idea that anything that I enjoy due primarily to the labor of another is something I ought to enjoy for free.” From the emphasis you placed on the word I guess the “ought” is your sticking point here, but the emphasis could alternatively be placed on the word “anything” instead. In other words, even diehard free culture / software types don’t consider that all goods related to creative work be provided without compensation; they simply advocate that the compensation be restricted to those goods that are necessarily scarce (e.g., the personal attention of a software developer, or seats at a concert) and not extended to those goods that are by their nature freely sharable in a nonrivalrous way.

          • http://www.facebook.com/people/Dan-Kervick/100000673155327 Dan Kervick

            Frank, “ought” is indeed the sticking point for me.  I assume libertarians have few problems with creative individuals freely entering into whatever kinds of employment contracts they might choose with private companies for which they work, or publishing their work under a any kind of license of their their own choosing, including a Creative Commons license.

            My issue is with those libertarians who are arguing that those who do not go the free culture route, and instead seek to establish intellectual property boundaries and protections around their work, are doing something wrong, and that nobody has a duty to respect the properties rights thus established.

            I’m wondering what happened to the vaunted libertarian insistence on the rights of individuals to freely determine the conditions of whatever contracts they might choose to make for the exchange of the direct output of their work.

            And I am wondering why they are suddenly so concerned about the threat of monopoly here in the realm of intellectual property, when they blithely accept the potential for monopoly inherent in the laissez faire approach they adopt to the exchange of material goods.

          • http://hecker.org/ Frank Hecker

            “My issue is with those libertarians who are arguing that those who … seek to establish
            intellectual property boundaries and protections around their work, are
            doing something wrong, and that nobody has a duty to respect the
            properties rights thus established.”

            From my (pretty extensive) experience with free software types (both libertarian and otherwise), there are a lot of people (Richard Stallman among them) who believe restricting access to works to be morally wrong, but I know of none who believe that valid copyrights should not be respected. (I can’t speak for free culture folks, as I don’t know that many of them.) The prevailing attitude is rather to pragmatically use the current system of copyrights as a way to promote sharing, via “copyleft” licenses like the GNU GPL. (See the essays “What is Copyleft?” and “Copyleft: Pragmatic Idealism” in Stallman’s book I previously referenced.)

  • Pingback: Rad Geek People's Daily 2011-08-22 – In which I bleed red and black, pt. 2

  • Fernando Teson

    Interesting post, Charles.  Welcome to our blog.
    I have only a small question: can you clarify what exactly is “a robust culture of grassroots solidarity and mutual aid”? Is this culture the result of voluntary choices? In my experience, “grassroots cultures” (which is not extensive, as I dislike being bamboozled into movements, clubs, and the like) have not always (to put it mildly) been sympathetic to individual freedom.
    FWIW, I must confess that I go back and forth on the issue of IP rights. Whenever I’m convinced of your position, I happen to run into some parasite who is out, not to help the poor, but to live off other people’s efforts .

    • GaffiGubbi

      You seem to take a sort of Randian approach to IP then. Personally I see nothing wrong with living off other people’s efforts if no coercion is involved. Many of today’s software producers, authors etc. give away their products for free, and some people reward them with contributions and donations while others don’t. As far as I can tell nobody’s been hurt by it. It’ll take a while for inventors, artists and others to adapt to a post-IP world, but the fact that some people get free stuff or don’t have to work as hard is not a social ill (as long as the market balances the situation).

      Btw, if you want to find real parasites, consider this: what has Disney Corporation done to deserve the continual revenue from the Mickey logo, Snow White etc.? Why does Leonard Peikoff deserve to live off Ayn Rand’s copyrights? As I said, I wouldn’t mind even if these people didn’t have to work a day in their lives (which obviously they do), as long as it didn’t involve coercion. But it does.

    • GaffiGubbi

      A grassroots culture of mutual aid, as I understand it, is simply helping one another. Instead of having a government-managed social safety net, you could have workers, guild/fraternal institution members etc. pooling their resources to provide insurance, pension benefits and other things. Some of the organizations that existed before the welfare state were sadly racist, sexist and otherwise exclusionary, but then so was the social atmosphere in general.

      I don’t see why such organizations couldn’t be conducive to individual freedom. However, we’re talking about a future world where a large part of the state apparatus has been hacked away, which would presuppose a society already determined to achieve freedom, not today’s world where you remove the state with a red button and tell the liberal union members to figure out how to do mutual aid without state welfare. In other words, “grassroots” in this context means “a libertarian grassroots movement”

      • Fernando Teson

        Gaffi:
        Righ on both counts. I need to think more about IP, since your point is valid. On grassroots libertarianism, I also agree (see my response to Charles below.)

    • http://twitter.com/radgeek radgeek

      Hi Fernando. Thanks for the welcome, and for the kind words!

      When I say “a robust culture of grassroots solidarity and mutual aid,” I do definitely mean something that arises strictly from voluntary choices and consensual association. I am talking about efforts to address issues of risk, social conflict, poverty, exploitative practices, etc., by means of consensually coordinated market choices and nonviolent cultural change — not attempts to legislate solidarity or force people to participate in relief programs. The model I mentioned earlier were the friendly societies and fraternal lodges that were very prevalent in the English speaking world (esp. England, the US and Australia) during the late 19th and early 20th century, which (among other things) provided an early form of extremely affordable non-corporate health coverage and life insurance to working class people, but through plans that were devised and managed by the members themselves rather than being administered by a corporation. Membership was voluntary and the societies were highly competitive (in the sense that there were many societies  for any given person to choose from, catering to different priorities; I don’t mean that they were at each other’s throats all the time). Broadly speaking, I think that formal organizations for aid, information-sharing, community organizing around issues of common concern, coordinating boycotts to bad businesses and positive support to good ones, etc. all have an important role to play, as well as encouraging broad cultural changes, aside from any formal organizing efforts, to encourage a sense of solidarity among working people (helping each other through hard times, freely supporting positive community institutions, supporting each other in showdowns with bad bosses or businesses, not crossing picket lines, etc.).

      It’s true that not everyone who believes in these things has been especially sympathetic to individual freedom or to markets. But some of the most radical defenders of free markets (Tucker, Voltairine de Cleyre, Francis Tandy, Dyer Lum, Jo Labadie, Herbert Spencer, and a number of other 19th century libertarians) did emphasize their importance; and I think rightly so. The kinds of organizing efforts and cultural developments that I’d point to are, as I see it, perfectly compatible with market frameworks (there’s nothing antimarket about, say, getting your insurance through a lodge practice, or contributing money or labor to a community free clinic or a Food Not Bombs); and I believe, not only in encouraging libertarians to see how this kind of Left stuff is compatible with free market principles, but also in encouraging non-libertarian Leftists to see how many of the things they value are in fact achievable through direct action, non-political means. (There was a time when the dominant strand in the radical Left was Anarchist and believed in addressing social problems of poverty, exploitation etc. through explicitly anti-political strategies — getting workers together to share information, pool resources, strike against bad bosses when necessary, open up worker-owned shops when possible, etc. etc. That strand was, basically, destroyed by persecution during the period from 1917 up to WWII — both by “Progressive” statists in the “capitalist” world, and by the Red Terror in the “socialist” world — but I think that they were on to something important, and it’s that sort of Left, not the modern political Left, that I intend to identify myself with when I describe my thing as left-libertarianism.)

      Don’t know how much that helps explain, but I hope it’s a start.

      • Fernando Teson

        Thanks, Charles, this is extraordinarily helpful and, what’s more important, right.  In the last chapter of our book, Guido Pincione and I argue for voluntary communities; I suspect that you might find that attractive. My only quibble is purely terminological:  I don’t see why an endorsement of voluntary communities would be a leftist position. The left, as I understand it everywhere, endorses social engineering from the top down; this is absolutely central to them. I understand that you want to identify yourself as part of the left in the sense that you fiercely oppose this shameful corporate welfare and care about the poor, but in my book you (to your credit) are not a leftist. I don’t know, maybe anarcho-libertarians are the real leftists!

        • http://twitter.com/radgeek radgeek

          Hi Fernando,

          Thanks; I’m definitely interested to check out the chapter. As for the terminological issue of “Left,” “Right,” and Other — well, that’s definitely quite a can of worms to open! But briefly, I think that anarcho-libertarians are indeed the real Leftists, on at least one common understanding of what being “on the Left” means. Of course, it has nothing to do with state-driven social engineering or centralized expert control of society (the typical goals of the “Progressive” movement, the corporate liberalism of the mid-20th century, or today’s “center-Left” political parties). But “Left-wing” means a lot of things to a lot of people. In its original context, it referred to liberal and radical anti-statists, who opposed mercantile privilege, supported free trade and free association, defended the right of revolution against tyranny, and opposed the principle that political authority was instituted by God Himself, and political dissent barely distinguishable from blasphemy. Bastiat sat on the Left in the  Assembly; and so did Proudhon. Of course, the meaning of “Left” has shifted over time, but I think that there are a lot of current conceptions of Leftism which I think are genuinely anti-authoritarian, and either explicitly anti-state (on the Anarchistic Left), or based on principles which are ultimately anti-statist in their tendency, even if their proponents don’t explicitly draw the inferences that they ought to.

          To slip into autobiography for a moment, unlike many market anarchists, I actually originally came to market anarchism not from small-government conservatism, or from classical liberalism, or mini-governmental libertarianism, but rather from the radical Left (in particular, from radical feminism and the post-Seattle social anarchist movement). Not because I had some Road to Damascus moment where I suddenly turned my back on Leftism as I had understood it, but because I got more radical, and what I found in the work of the individualists and mutualists offered what I thought were some really important insights into the nature and origins of economic inequality and social domination; into  the ways in which political and bureaucratic regimentation really
          served to disempower the poor and socially marginalized, and to corral
          and domesticate once-radical social movements; and into ways in which genuinely grassroots alternatives to the State might function (without simply turning the whole of social life into one endless god-awful meeting of the Coalition Steering Committee).

          So as I see it I am a Leftist who became a libertarian for Leftist reasons, as my commitments to what I took to be Left-wing values (challening arbitrary authority, promoting grassroots solidarity and mutual aid, dismantling the warfare State, returning the land to those who till it, all power to the people,  etc. etc. etc.). On which, see this comment and this dialogue, and, more programmatically, the discussions of “Left” and its various meanings in In a freed market…, ALL I need to know about the Revolution is what I heard in Vegas…, I am shocked! shocked! to discover that politics is going on in here, etc.

  • Stan Parker

    A couple thoughts here…

    Intellectual property rights are often seen as a way to protect the author, creator or artist of any given work. But these  legal principles were devised by publishers — not artists — to protect their publishing empires. Once again, we see the heavy hand of corporations influencing the state to beef up their profit margins.

    At the start, copyright protection was designed to encourage competition — the idea being that it provided an incentive for creative people to create. The logic was that nobody would create anything if they had a fear that their innovations would be stolen. However, these protections have been extended over time, at the behest of corporate lobbyists, to create an environment where people can no longer create based off of stimuli that exist in their current environment.

    I suggest a documentary called RIP! A remix manifesto, that explores many of these themes: http://films.nfb.ca/rip-a-remix-manifesto/

    Personally, I think releasing a digital copy of your work on the internet is the technological equivalent of playing your guitar in an open plaza. Once those bits (or soundwaves) are out there, one can expect no way to control them.

    In a technological age, publishers and artists will have to come up with more creative ways to charge for their works.  This challenge inspires creativity, not diminishes it. For instance, if music artists know that people are getting their music for free on the internet, they may put more emphasis into their live shows to encourage fans an original experience that only a ticket can buy.

    I also met some documentary filmmakers that had an interesting distribution model for their film — there was only one copy of the film, and they controlled it. You want a screening of their movie? You fly them out to your film festival or whathaveyou, they play their movie, and the cool thing is, the filmmakers are there to answer any questions about the film. It’s a much more personal, interactive experience, made possible only be the challenges of keeping their product scarce in an age of digital replication.

    One final thought, and that’s patronage. It used to be that 95 percent of the population worked their asses off for a meager living, 4 percent of the population were noble, and the remaining one percent was royal. (Completely made-up numbers). It was only the royalty who could afford to hire musicians to compose them music.

    For instance, Bach was hired throughout his life to play for Dukes, Princes, Kings, churches, etc. It wasn’t the common man buying his music — only the royalty could afford to pay his salary.

    Well, in this age, I maintain that there are more people in the “royal” class than ever before in human history. That is, people that can afford to support musicians. We should all think of it as our “patronage” to support musicians whose work we enjoy. We may not all hire a Bach to personally compose us music for us, but by purchasing music or attending a live show, we democratically support music together.

    On the other hand, if somebody makes $300,000, they could very easily just decide to make $250,000 a year, hiring a private musician for $50K a year. I mean, how cool would that be, right?

    • http://twitter.com/radgeek radgeek

      Well, in this age, I maintain that there are more people in the “royal”
      class than ever before in human history. That is, people that can afford
      to support musicians.

      Moreover, in the age of Kickstarter, there are a lot of ways that a lot of people, of much less than a “royal” class, can now come together and pool enough resources to support artists or projects that they like, in ways that were difficult or impossible in the 17th and 18th centuries (both for technological reasons and for politico-economic reasons). There’s a lot of artists who deserve support, and you might have trouble finding 1 person to toss out $50,000 a year on each of them. But when it’s hard to find 1 person with $50,000 to spend, it’s now a lot easier to find 2,000 people with $25 they’re willing to spend.

  • Hyena

    “Grassroots solidarity” reminds me me of the extensive work on unions done by one of the guys at C4SS. In addition, I think it would be an interesting experiment to try to create private unemployment insurance, perhaps on more generous or at least less onerous or degrading terms. One issue, however, is that grassroots solidarity tends to be overwhelmingly anti-trade; Caplan points out that anti-market and anti-foreign bias probably do the work here, so it’s not clear that this is a “governments only” problem.

    • http://twitter.com/radgeek radgeek

      Hyena,

      If you’re thinking of Kevin Carson, that’s not an accident. Besides a lot of similarities in general economic outlook, we’re both members of the IWW, and we’ve been corresponding about state-free wildcat unionism and bouncing ideas off each other for some years now. I discuss some of the application of these ideas to free-market unionism in Free the Unions (and all political prisoners), Re: Individualism Clashes with Cooperation? It Just Ain’t So!, El pueblo unido jamás será vencido!, Anarquistas por La Causa, In reply to a reply by J.H. Huebert and Walter Block, King Ludd’s Throne, etc.

      One issue, however, is that grassroots solidarity tends to be
      overwhelmingly anti-trade; Caplan points out that anti-market and
      anti-foreign bias probably do the work here, so it’s not clear that this
      is a “governments only” problem.

      Well, I think that economists like Caplan tend to get a lot of mileage by conflating opposition to particular fetishized and subsidized forms of commercial activity, or the nasty products of government-juiced commerce, with an opposition to “commerce” or “trade” as such. (I think Caplan’s usual metrics for “anti-foreign bias,” for example, are really egregious.) Insofar as they do, I think that this is not really a problem for grassroots solidarity, but rather a problem for our metrics.

      However, to be sure there are also a lot of genuine problems with people’s sense of what solidarity would mean (hostility to market relationships, etc.).

      Now, sometimes this is because people wrongly think that markets per se lead to some genuinely nasty consequences (structural poverty, exploitative and reckless business practices, persistent large-scale inequalities of wealth, dehumanizing or alienating forms of commercialism, workplace hierarchy, etc.). In those cases I think the thing to do is for defenders of markets to get clearer about what they include and how they might facilitate outcomes different from the stereotyped features of actually-existing corporate capitalism; and to make the case more clearly to people who criticize markets for allegedly having those features. (The question here is whether they oppose market relationships just as such; or whether they oppose them because of false beliefs about their likely consequences. If the latter, then better thinking and teaching about the likely consequences will tend to make people more open to the value of market relationships.) In this case the problem isn’t with the commitment to solidarity but with the (false) belief that it conflicts with markets; so best to be clearer about markets.

      On the other hand, sometimes the opposition results from beliefs that markets relationships produce things which the speaker fears or loathes, but which are not really nasty consequences. Market relationships do bring people into closer contact with foreigners, encourage all kinds of weird cultural cross-pollination, etc., and there are some people who don’t like foreigners, have idiotic ideas about monolithic and impregnable Kultur, etc. etc. And I agree that this doesn’t just come from government, or from the ripple-effects of government. But in those cases, the thing to do is just to dig in and defend a better, more humane, and more radical conception of class and solidarity than the stupid, belligerent, and largely politically-fabricated notions that are common in nationalistic and other phobic circles. Here, the problem is not false beliefs about what markets produce so much as irrational or malicious reactions to what they do. But then the problem is not, as I see it, the ideal of grassroots solidarity per se; it’s rather the stupid, limited, and limiting political identities that people have been handed as bases for it. And the solution is doing cultural and organizing work to challenge the stupidity and offer better bases for cooperation.

  • Lance Cahill

    Do FTA’s change the status quo with respect to intellectual property rights? If we did not ratify the FTA with South Korea, would there be any less intellectual property right protection? The sections containing IP protections merely outline agreed upon principles between the two parties. If South Korea allows one to

     I doubt it. So, why is this a relevant criteria for agreeing with certain FTA agreements, even if they preserve certain subsidies? Isn’t a state of the world where protected industries equals N-1 better than a state of the world where protected industries equals N, assuming N constitutes industries with the same “influence” wrt the economic system?

    I make the assumption because you have yet to outline a thoughtful empirical case of the relevant FTA’s and their impact on protected industries other than noting that the agreements do preserve certain subsidies.

    Perhaps this is the fundamental breaking point between libertarians who view the state as legitimate (and view public policy goals as maximizing a certain conception of liberty and pareto improvements) and those who do not.

    We do not live in a virginal political state. We live in a world with institutional path-dependence. You cannot eradicate modern social support systems assuming that a “culture of grassroots and mutual aid” will fill the void without significant dislocation.

    Moreover, you completely botched Zac Gochenour’s point wrt productivity and trade volume. If FTA’s increase the price of certain goods/services (due to IP protections), wouldn’t that decrease productivity growth? You could get less output (as measured by $ output) per worker. Moreover, I doubt that IP protection serves to buffer trading volume statistics, especially with countries with low amounts of capital per worker. Moreover, if your point was true, we would see trading volume increase only from the U.S., but decrease/stay the same from the other country (as the IP protections offer serve to protect U.S. publishing/scientific interests).

    You are free to argue that pareto improving FTA’s should not be considered since they include moral poision pills such as subsidies and IP protection, but let’s square with the consequences of doing so.

  • Lance Cahill

    Ah, I took a look at the website you linked too. I concede it does increase IP protections.

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  • Anonymous

    I’m going to proceed down here rather than face the narrow column syndrome. I confess to not having thought a great deal about the moral foundation of IP until now, other than harboring the suspicion that it would be difficult to distinguish the homesteading case from the IP case. I am not commenting here just to see my words in type–I am actually interested in the subject. The basis offered by Radgeek for treating the two classes of property (assuming for a second that IP is property) does not yet convince me. He says: “The difference-in-kind here is better expressed in terms of two features: (1) the non-rivalrous character of intellectual objects, and (2) the inalienability of (mental) self-ownership.”

    As for pt. #1, I am not clear on why this shouild be a decisive fact from the moral perspective, particlarly in light of the example I discuss below. As for pt. #2, one can question why the “inalienability” should not apply to the “(mental) self-ownership” of the inventing party, rather than the party appropriating his/her work without consent or payment. This factor is also addressed by my hypothetical.

    Imagine person A is a Nobel prize winning theoretical physicist. A goes to his doctor for a routine blood test. Unbeknownst to him, his doctor has been bribed by a couple that wants a child that is a genetically identical clone of the great scientist. So, the doctor has the blood genetically decoded, and using this information, they (using whiz-bang technology) create a genetically identical embryo of A.  Has A’s rights been violated?

    Well, if we look just at the “non-rivalrous character of intellectual objects” we should answer “no.” The fact that A suddenly has an identical twin out there somewhere does not diminish his ability to live his life, at least not to any greater extent than the author or invention who has their work copied without consent or compensation. With respect to ”mental self-ownership,” I can only say that (i) I just don’t see intuitively its relevance here and (ii) if somehow relevant, why it doesn’t work to protect the rights of A rather than those taking his genetic information w/o his consent.

    Perhaps those who deny the existence of IP will bite the bullet and say that A’s rights have not been violated, but I doubt that too many non-libertarian ideologs will agree. Or, perhaps my hypothetical doesn’t work. So, I am interested in all responses. 

     

    • http://blog.hecker.org/ Frank Hecker

      Mark, I don’t have really coherent thoughts at this point on your thought experiment, but I did want to convey my own perspective on IP, or I should say specifically on copyright, in response to some of your comments. My own view that by its nature copyright enforcement requires government action, and when copyright is interpreted maximally (as a strong property right) then its enforcement will require government action to such an extent as to cause serious “collateral damage” in terms of infringement of liberty. Thus a libertarian interested in limiting the scope of government or even eliminating it altogether should be skeptical when it comes to considering holding a copyright as a moral equivalent to ownership of real property.

      To expand on this: Given that copyright is concerned with expressions of ideas, etc., defending one’s copyright is not a (generally) localized problem like defending one’s house against intruders; violations (i.e., uses not authorized by the creator) could occur literally anywhere in the world, in a multitude of contexts, and could be committed by people who have no idea that what they are doing is indeed a violation.

      Considering the many ways in which copyrightable expressions could be conveyed from person to person, I don’t see it being generally feasible to protect such expressions through a purely contractual framework like that you discuss in your thought experiment above about Bill the software developer. At the limit you’d have to “contractualize” each and every aspect of daily life in which we might come into contact with copyrightable material — looking over a friend’s shoulder as they watch a movie on their iPad, idly thumbing through a magazine at a newsstand, listening to one’s spouse sing a song in the shower, and so on. We already have a mini-version of that in the software and online world — 50-page “click through” software licenses, web site terms and conditions that are tucked away under a “Legal” link and supposedly apply to everyone who browses to that site, and so on — and (no offense intended) it’s a world only a lawyer could love.

      So instead we have a general government-granted monopoly on exploitation of copyrightable works, and government-provided mechanisms by which copyright holders can pursue redress for violations. But that then opens the opportunity for corporations and others to enlist government to extend the scope of copyright along various dimensions in pursuit of their own private interests. One dimension is time, in which we see the continued extension of copyright terms well beyond the life of the (individual) author, and in the limit copyright becomes a perpetual property right to count among corporate assets. Another dimension is space, in which we see countries like the US attempt to press other countries into adopting maximal copyright regimes (as in the examples Charles Johnson cites), so that in the limit every country must enforce the copyright restrictions imposed by the most draconian among them. A third dimension is technological, in which copyright holders enlist government to dictate what sort of technologies may legally be developed or sold (e.g., mandating DRM for DVD players, high-definition TVs and computer displays, etc.).

      All of this has real costs in terms of reduced liberties for those who use copyrighted material in various ways, and even for a non-libertarian like me it’s not clear that that reduction in liberty is worth it. I think there’s a case to be made for copyright, but I think grounding copyright in some sort of natural property rights framework is not the way to go.

      • Anonymous

        Frank,
        Thanks for the interesting comments. I don’t really see this issue breaking down along the state/anarchy dimension. If we can imagine living in political anarchy, the issue regarding the recognition or non-recognition of intellectual property would still need to be decided by whatever private organization was delegated this task. Perhaps there wouild be many different communities each with its own rules, but the issue would still need to be resolved. In those communities that recognize IP, I suspect private organizations would arise that would enforce for inventors/authors whatever rights were granted (on a compensated basis of course). Perhaps inventors/authors would do less well under such a system, but this is separate from the moral status of IP rights.

        Without getting into a long, inconclusive debate with you about “natural property rights,” I would just say that this whole issue would depend on your personal normative ethics. Certainly a utilitarian would favor a system that looks different than one designed by a natural rights theorist. My particular view is (tentatively) that an inventor/author creates value in the same way that any other entrepreneur or homesteader does, its just that this property is incorporeal. I’m not convinced that this changes the moral status of this property (or whatever you want to call IP).

  • Anonymous

    Free Trade Agreement, is, of course, an oxymoron!

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