Wednesday, March 20, 2013

On Roderick Long's "Libertarian Case Against IP"


In 1995, libertarian philosopher Roderick Long published “The Libertarian Case Against Intellectual Property”,[1] reprinted here in its entirety, with my comments interspersed. Long begins with a brief overview of the historical debate.


A Dispute Among Libertarians


The status of intellectual property rights (copyrights, patents, and the like) is an issue that has long divided libertarians. Such libertarian luminaries as Herbert Spencer, Lysander Spooner, and Ayn Rand have been strong supporters of intellectual property rights. Thomas Jefferson, on the other hand, was ambivalent on the issue, while radical libertarians like Benjamin Tucker in the last century and Tom Palmer in the present one have rejected intellectual property rights altogether.


When libertarians of the first sort come across a purported intellectual property right, they see one more instance of an individual's rightful claim to the product of his labor. When libertarians of the second sort come across a purported intellectual property right, they see one more instance of undeserved monopoly privilege granted by government.


I used to be in the first group. Now I am in the second. I'd like to explain why I think intellectual property rights are unjustified, and how the legitimate ends currently sought through the expedient of intellectual property rights might be secured by other, voluntary means.[2]


As for me, I used to be in the second group, now I am in the first. Working through Long’s paper should go along way towards explaining why intellectual property rights are justified for the exact same reasons as physical property. 


Long’s “The Historical Argument”


Intellectual property rights have a tainted past.


Yes, as do physical property rights.


Originally, both patents and copyrights were grants of monopoly privilege pure and simple. [3]


That’s not true. Copyright protection arose in medieval Ireland and England, at common law. One Irish case dates from AD 567, before the invention of the printing press.[4] Like so many other social phenomena, law (including IP) arose on the market, only to be co-opted by the state, for the state’s purposes.


A printing house might be assigned a "copyright" by royal mandate, meaning that only it was allowed to print books or newspapers in a certain district; there was no presumption that copyright originated with the author. Likewise, those with political pull might be assigned a "patent," i.e., an exclusive monopoly, over some commodity, regardless of whether they had had anything to do with inventing it. Intellectual property rights had their origin in governmental privilege and governmental protectionism, not in any zeal to protect the rights of creators to the fruits of their efforts. And the abolition of patents was one of the rallying cries of the 17th-century Levellers (arguably the first libertarians).[5]


Of course the state has placed itself in charge of intellectual property, and abuses its discretion in its own interest. The exact same can be said of physical property.


Now this by itself does not prove that there is anything wrong with intellectual property rights as we know them today. An unsavory past is not a decisive argument against any phenomenon; many worthwhile and valuable things arose from suspect beginnings. (Nietzsche once remarked that there is nothing so marvelous that its past will bear much looking into.) But the fact that intellectual property rights originated in state oppression should at least make us pause and be very cautious before embracing them.[6]


As Hoppe has often pointed out, history without theory is useless.[7] Long moves on to ethics:


Long’s “The Ethical Argument”



Ethically, property rights of any kind have to be justified as extensions of the right of individuals to control their own lives. [8]


Nonsense. In correct libertarian theory, property rights are justified as a necessary assignment of exclusive control over scarce and rivalrous goods, so as to avoid  conflict. Two people could both desire to use the same resource, and may each consider use of the resource to be what is necessary to “control their own life”. An “extension” of the right to control one’s own life could mean absolutely anything. Such a concept tells us nothing about what is and is not valid property, nor how it comes to be owned, and so cannot be any kind of a test.


Thus any alleged property rights that conflict with this moral basis — like the "right" to own slaves — are invalidated. [9]


Is Long is using “right to control one’s life” to mean what libertarians typically refer to as “self-ownership”? Maybe, but if so I wonder what an “extension” of that right would be. Correctly framed, all rights are property rights, including a property right in one’s own physical body. Slavery is wrong because it is a violation of the slaves’ unalienable self-ownership. Long continues:


In my judgment, intellectual property rights also fail to pass this test. [10]


What test? The “right to extended control over one’s own life” test? Long has not attempted to explain what he might mean, nor how we might examine anything with his “test”.


To enforce copyright laws and the like is to prevent people from making peaceful use of the information they possess. [11]


Characterizing IP rights violation as “peaceful” is begging the question. The issue is whether or not a legitimate property right exists in the copyrighted work. If it does, then copyright infringement is not peaceful, it is an aggression.


If you have acquired the information legitimately (say, by buying a book), then on what grounds can you be prevented from using it, reproducing it, trading it? [12]


There is a difference between a consumer use and a producer use. When you buy a book, you are buying the consumer good. It is yours to use, which means reading, enjoying and understanding the information. You are then perfectly free to use that information in any way you see fit, so long as such use does not constitute using the productive capacity to mass-produce the consumer good. The ability to copy a book is a productive capacity, like a factory assembly line. That productive capacity is rightly owned by its creator, because it was the creator who brought it into existence through capital expenditure.


Is this not a violation of the freedom of speech and press?[13]


As Murray Rothbard and others have pointed out, “freedom of speech” and “freedom of the press” are simply property rights.[14] You can say whatever you want to say, so long as you do not violate my property rights in the process. If I have a  property right in my intellectual work, then your freedom of speech does not allow you to commercially exploit it, any more than freedom of speech would allow you access to my printing press.


It may be objected that the person who originated the information deserves ownership rights over it. But information is not a concrete thing an individual can control; it is a universal, existing in other people's minds and other people's property, and over these the originator has no legitimate sovereignty. You cannot own information without owning other people.[15]


This is either begging the question again, or just plain false, depending on what his ambiguity means. Long is correct that an object must be controllable to be property. Long is also correct that information is not a concrete thing. But when he says that “information is not a concrete thing an individual can control”, we don’t know whether he means “information cannot be controlled” or “information is not a concrete thing”, or both.


In fact, information can be controlled, so if Long is trying to say it can’t, that’s just false. We need only to contemplate the extraordinary capabilities of today’s computer systems to visualize man’s control of information.


It’s true that information is not “concrete”, but whether intangible objects may or may not rightly be property is the issue, so it appears Long is once again smuggling his conclusion right up into his premise. Naughty, naughty Roderick.


Suppose I write a poem, and you read it and memorize it. By memorizing it, you have in effect created a "software" duplicate of the poem to be stored in your brain. [16]


Remember, “the poem” is actually two distinct goods – a consumer good used for entertainment, and a producer good used for duplication of the consumer good.


But clearly I can claim no rights over that copy so long as you remain a free and autonomous individual. That copy in your head is yours and no one else's.[17]


Long here is failing to distinguish between consumer and producer goods. The poem in someone’s head (or the digital song file on their hard drive) can be both a consumer good when it is used for entertainment, and a producer good when it is used for duplication of the consumer good.


But now suppose you proceed to transcribe my poem, to make a "hard copy" of the information stored in your brain. The materials you use — pen and ink — are your own property. The information template which you used — that is, the stored memory of the poem — is also your own property. So how can the hard copy you produce from these materials be anything but yours to publish, sell, adapt, or otherwise treat as you please?[18]


It is true that a copier uses his own physical body and his own material property to make the copy. The copyright owner does indeed seek to disallow the copier from commercially exploiting the copies. This is simply an example of how property rights place restrictions on all other people in the world.


This is not at all unique to intellectual property. You may walk where you like, but you can’t come in my house. You may own a gun and bullets, but you may not point it at me and shoot. Property (intellectual or physical) is all about the right to exclude others. Without the right to exclude, property is completely meaningless. 


An item of intellectual property is a universal. Unless we are to believe in Platonic Forms, universals as such do not exist, except insofar as they are realized in their many particular instances.[19]


The existence of physical matter is also questioned, for example by existentialist or metaphysical nihilist philosophers. Ludwig von Mises found this challenge so important as to address it right in the beginning of Human Action, and again in The Ultimate Foundation of Economic Science.[20] According to Mises, something is real if it can condition the outcome of human events. By the same test, intellectual objects are real.[21]


Accordingly, I do not see how anyone can claim to own, say, the text of Atlas Shrugged unless that amounts to a claim to own every single physical copy of Atlas Shrugged. [22]


This is just the old “argument from personal incredulity”, a logical fallacy.


But the copy of Atlas Shrugged on my bookshelf does not belong to Ayn Rand or to her estate. It belongs to me. I bought it. I paid for it. (Rand presumably got royalties from the sale, and I'm sure it wasn't sold without her permission!)


The many instances of the physical books are something different than the one unique instance of the intellectual object.  Each individual purchaser of the consumer good called a “book” owns that physical object, free and clear.


Ownership of the producer good, i.e. the productive capacity which makes mass-production possible, remains with the creator. It is like the difference between owning a bicycle vs. owning a bicycle factory. It is my sincere hope that the doctrine of intellectual space will makes this long-neglected and crucial point easier for Professor Long and others to conceptualize.


The moral case against patents is even clearer. A patent is, in effect, a claim of ownership over a law of nature.[23]


Well, no. A patent is claim of ownership over a method of producing a useful good.


What if Newton had claimed to own calculus, or the law of gravity? Would we have to pay a fee to his estate every time we used one of the principles he discovered?[24]


This is a strawman argument, like asking “what if Lewis and Clarke claimed to own the Rocky Mountains?” Dancing merrily with his strawman, Long quotes Benjamin Tucker:


"... the patent monopoly ... consists in protecting inventors ... against competition for a period long enough to extort from the people a reward enormously in excess of the labor measure of their services, — in other words, in giving certain people a right of property for a term of years in laws and facts of Nature, and the power to exact tribute from others for the use of this natural wealth, which should be open to all."[25]


- Benjamin Tucker


I agree that patents are likely not valid property, but not because of anything that Long or Benjamin Tucker have argued regarding “laws of nature”. As generally understood, a patent is a claim of ownership in a method of producing something, not something that has actually been produced. Thus a patent does not represent an act of homesteading, and cannot be property. Copyright, however, applies to the creation of a finished work, and a functioning productive capacity.  Thus, copyright represents an act of homesteading, and is rightful property.


Defenders of patents claim that patent laws protect ownership only of inventions, not of discoveries. (Likewise, defenders of copyright claim that copyright laws protect only implementations of ideas, not the ideas themselves.) But this distinction is an artificial one. Laws of nature come in varying degrees of generality and specificity; if it is a law of nature that copper conducts electricity, it is no less a law of nature that this much copper, arranged in this configuration, with these other materials arranged so, makes a workable battery. And so on.[26]


Is Roderick Long really unable to understand the difference between a law of nature and the human creation of useful things? Long proceeds with a far-fetched hypothetical, but let’s go with it, to see if it sheds any light:


Suppose you are trapped at the bottom of a ravine. Sabre-tooth tigers are approaching hungrily. Your only hope is to quickly construct a levitation device I've recently invented. You know how it works, because you attended a public lecture I gave on the topic. And it's easy to construct, quite rapidly, out of materials you see lying around in the ravine.


But there's a problem. I've patented my levitation device. I own it — not just the individual model I built, but the universal. Thus, you can't construct your means of escape without using my property. And I, mean old skinflint that I am, refuse to give my permission. And so the tigers dine well.


This highlights the moral problem with the notion of intellectual property. By claiming a patent on my levitation device, I'm saying that you are not permitted to use your own knowledge to further your ends. By what right?[27]


The sabre-tooth tiger story is an emotional “lifeboat scenario”.  The exact same kind of argument can be brought to show that physical property is illegitimate. Suppose you are in a bad neighborhood, and a gang of thugs are intent on robbing and killing you. Your only chance to escape is to steal a nearby car, which is unlocked with the key in it. The owner of the car would say you are not allowed to take it, so the thugs succeed in their heinous crime.


Does this “highlight the moral problem with the notion of physical property”? No, it simply means that vicious thugs did not respect your rights, just like the vicious sabre-tooth tiger did not respect my rights in Long’s story.


Does a free society offer a solution? Yes. What could happen is that you go ahead and steal the car, make your escape, then return the car to its owner, and pay for whatever damages the owner suffers as a result of your theft. Same with the sabre-tooth tiger. The victim would build Long’s hypothetical levitation machine, escape the predators, then negotiate a license fee with the IP owner. [28]


Another problem with patents is that, when it comes to laws of nature, even fairly specific ones, the odds are quite good that two people, working independently but drawing on the same background of research, may come up with the same invention (discovery) independently. Yet patent law will arbitrarily grant exclusive rights to the inventor who reaches the patent office first; the second inventor, despite having developed the idea on his own, will be forbidden to market his invention.[29]


The problem with patents is that they do not represent homesteading. The fact that two inventors can independently discover the same invention is irrelevant to a principled argument. Two explorers can independently discover the same patch of un-owned land, and the rightful owner will be the one to first occupy and transform the land into usefulness. Does this mean that there is no legitimate property right in land? No, so why would this argument in any way invalidate intellectual property?


Long cites Ayn Rand’s response to the alleged  problem of “first come, first serve”:


"As an objection to the patent laws, some people cite the fact that two inventors may work independently for years on the same invention, but one will beat the other to the patent office by an hour or a day and will acquire an exclusive monopoly, while the loser's work will then be totally wasted. This type of objection is based on the error of equating the potential with the actual. The fact that a man might have been first, does not alter the fact that he wasn't. Since the issue is one of commercial rights, the loser in a case of that kind has to accept the fact that in seeking to trade with others he must face the possibility of a competitor winning the race, which is true of all types of competition."[30]


- Ayn Rand


Rand is pointing out the same contradiction I do. If “first come, first serve” does not invalidate physical property, why should it invalidate IP? Long responds to Rand:


But this reply will not do. Rand is suggesting that the competition to get to the patent office first is like any other kind of commercial competition. For example, suppose you and I are competing for the same job, and you happen to get hired simply because you got to the employer before I did. In that case, the fact that I might have gotten there first does not give me any rightful claim to the job. But that is because I have no right to the job in the first place. And once you get the job, your rightful claim to that job depends solely on the fact that your employer chose to hire you.


In the case of patents, however, the story is supposed to be different. The basis of an inventor's claim to a patent on X is supposedly the fact that he has invented X. (Otherwise, why not offer patent rights over X to anyone who stumbles into the patent office, regardless of whether they've ever even heard of X?) Registering one's invention with the patent office is supposed to record one's right, not to create it. Hence it follows that the person who arrives at the patent office second has just as much right as the one who arrives first — and this is surely a reductio ad absurdum of the whole notion of patents.[31]


Long is ignoring a consideration of what property even means, ignoring first principles, and quibbling about the whether a patent should go to the first to invent, or the first to the patent office. In a free society, if an invention represented the homesteading of a new productive capacity (which I don’t believe it does), then the property right would likely vest in the first person to file a claim.


Long’s “The Economic Argument”



The economic case for ordinary property rights depends on scarcity. [32]


Correct, the need for property rights arises over the possibility of conflict over scarce resources. Long is on the right track here, evidently abandoning his pervious claim that “property rights of any kind have to be justified as extensions of the right of individuals to control their own lives.”


But information is not, technically speaking, a scarce resource in the requisite sense. If A uses some material resource, that makes less of the resource for B, so we need some legal mechanism for determining who gets to use what when. But information is not like that; when A acquires information, that does not decrease B's share, so property rights are not needed.[33]


Long is using logic to test for scarcity and rivalry, and thus the validity of property rights. That’s the right  approach to take, but unfortunately he uses one rule when analyzing physical property, and a different one in analyzing IP. The result is that he is comparing the consumer use of physical property with the combined consumer-and-producer uses of intellectual property. This the same fallacious analogy repeated so often by so many, including Nina Paley in the lyric of her Anti-IP song “Copying is Not Theft”.[34]


Paley likes to talk about bicycles and songs, so let’s use those as our examples of physical and intellectual objects respectively. I will restate Long’s rules as logical syllogisms, then insert the objects and check the results. 


Long’s 1st rule


Rule: If person A uses a resource, and that use makes less of the resource available for person B, then the resource is rivalrous and thus rightful property.


Analysis: Resource = one bicycle. Use = riding the bike.


If person A rides the bicycle, then that same bicycle is not available for person B?


Conclusion: Yes, the test holds, and a bicycle is rightful property, according to Long’s 1st rule. Since we already know that physical objects can be rightful property, this result supports the idea that Long’s 1st rule is valid.


Next we apply Long’s 1st rule to an intellectual object.


Analysis: Resource = one copy of a song file. Use = listening to the song.


If person A listens to the song, then that same copy is not available for person B?


Conclusion: Yes, the test holds, and a song file is rightful property, according to Long’s 1st rule.


Long’s 2nd rule


Rule: If person A acquires one instance of a resource, and person B acquires a different instance of the same resource, and A’s use does not interfere with B’s use, then the resource cannot be property.


Analysis: Resource = bicycles. Use = riding.


Person A acquires a bicycle, person B acquires a different instance of the same model bicycle. A’s riding does not interfere with B’s riding, so a bicycle cannot be property?


Conclusion: No, this does not hold. Since we have already established that physical goods like a bicycle are valid property, Long’s 2nd rule fails as a test. We can apply Long’s 2nd rule to an intellectual object, to show that it will fail to hold in the same way.


Analysis: Resource = a song. Use = listening


Person A acquires a copy of the song file, person B acquires a different instance of the same song file. A’s listening does not interfere with B’s listening, so a song cannot be property?


Conclusion: It is true the A’s listening does not interfere with B’s listening, but we’ve already seen that the rule itself fails. Because Long’s 2nd rule fails, it says nothing of whether a song can be property.


All Long has done was test physical property with his 1st Rule, and intellectual property his 2nd rule.



Long’s “The Economic Argument”, cont.


Having truly avoided the underlying philosophy, Long proceeds to setup and then knock down his next strawman:


Some will say that such [IP] rights are needed in order to give artists and inventors the financial incentive to create. But most of the great innovators in history operated without benefit of copyright laws. [35]


This is a naked assertion. Long provides no reason or evidence to support the contention that “most of the great innovators in history operated without copyright laws”, nor why that might invalidate IP even if true. If Long wishes to show that IP somehow restricts innovation, it is not enough to show that innovation occurred pre-IP. Long would need to use praxeology to show that, other things equal, innovation would have been less with IP that what actually occurred in the pre-IP era. Long has not attempted, let alone succeeded in doing so.


Again, Long applies a standard to IP that he is unwilling to apply generally. Countless physical structures, tools, etc. were manufactured in ancient times, prior to the development of a universally accepted concept of property rights. In the 1950s the Soviet Union built a world-class space program, a magnificent achievement in physical engineering, despite having essentially abolished private property altogether.  Do these historical facts invalidate rights in physical property? Of course not.


Indeed, sufficiently stringent copyright laws would have made [artists and inventors] achievements impossible: Great playwrights like Euripides and Shakespeare never wrote an original plot in their lives; their masterpieces are all adaptations and improvements of stories written by others. Many of our greatest composers, like Bach, Tchaikovsky, and Ives, incorporated into their work the compositions of others. Such appropriation has long been an integral part of legitimate artistic freedom.[36]


Long here is assuming that copyright holders do not want their works adapted and improved on. This is just a fallacious as assuming that land owners do not want their property improved. It might be true in some instances, where the land owner prefers keeping the land in its natural state rather than contracting with a developer to add roads, utilities and buildings. This is simply a reflection that value is subjective. Many land owners do consider adding structures to be an improvement, and many copyright holders approve of adaptations of their original works.


For example, in 1985 Norwegian pop band “Aha” wrote and recorded the hit song “Take On Me”.[37] In 2012, along with co-writers, recording artists Pitbull and Christina Aguilera released a hit single “Feel This Moment”. “Feel This Moment” features an adaptation of the distinctive synthesizer melody from “Take On Me”. The Aha members were happy for the creation of the derivative work, and received writing credit (thus royalties) on the new tune. [38]


In other examples, original creators are not willing to allow their music to be incorporated into derivative works, doubtless causing frustration among those seeking to create the new piece. But this is conceptually no different than disputes arising between parties with differing ideas on the best use of land, or any other resource. Once again, if this kind of problem does not invalidate physical property, it must not invalidate IP.


Having sidestepped the crucial economics, Long’s parade of non-sequirtors continues:


Is it credible that authors will not be motivated to write unless they are given copyright protection? Not very. Consider the hundreds of thousands of articles uploaded onto the Internet by their authors everyday, available to anyone in the world for free.[39]


In a world of 5 billion people, there are thousands or millions of people who author material which is not commercially viable, so therefore . . . what?


Is it credible that publishers will not bother to publish uncopyrighted works, for fear that a rival publisher will break in and ruin their monopoly? Not very. Nearly all works written before 1900 are in the public domain, yet pre-1900 works are still published, and still sell.[40]


Sure, classic material can still “sell”, but this is irrelevant. Of course it can sell. The question is who deserves the money from the sales. If I stole a load of flat-screen TVs from a warehouse, I could sell them, but would it be right?


Long’s increasing desperation is betrayed by ever more bizarre interpretations:


Is it credible that authors, in a world without copyrights, will be deprived of remuneration for their work? Again, not likely. In the 19th century, British authors had no copyright protection under American law, yet they received royalties from American publishers nonetheless.[41]


In the 19th century, both the United States and Great Britain had copyright laws, it’s just that U.S. law did not explicitly require payment to foreign authors. By paying the British authors, U.S. publishers demonstrated a good faith  understanding of a property right in the intellectual work, and were simply doing the right thing. Far from an argument against IP, this 19th century example illustrates that free people will respect intellectual property, even absent the coersion of the state. 


In his autobiography, Herbert Spencer tells a story that is supposed to illustrate the need for intellectual property rights. Spencer had invented a new kind of hospital bed. Out of philanthropic motives, he decided to make his invention a gift to mankind rather than claiming a patent on it. To his dismay, this generous plan backfired: no company was willing to manufacture the bed, because in the absence of a guaranteed monopoly they found it too risky to invest money in any product that might be undercut by competition. Doesn't this show the need for patent laws?


I don't think so. To begin with, Spencer's case seems overstated. After all, companies are constantly producing items (beds, chairs, etc.) to which no one holds any exclusive patent. But never mind; let's grant Spencer's story without quibbling. What does it prove?


Recall that the companies who rejected Spencer's bed in favor of other uses for their capital were choosing between producing a commodity in which they would have a monopoly and producing a commodity in which they would not have a monopoly. Faced with that choice, they went for the patented commodity as the less risky option (especially in light of the fact that they had to compete with other companies likewise holding monopolies). So the existence of patent laws, like any other form of protectionist legislation, gave the patented commodity an unfair competitive advantage against its unpatented rival. The situation Spencer describes, then, is simply an artifact of the patent laws themselves! In a society without patent laws, Spencer's philanthropic bed would have been at no disadvantage in comparison with other products.[42]


Tainting IP with the scary buzz-word “monopoly” is the same tactic taken to the extreme more recently by mainstream economists Boldrin & Levine.[43] All property is a “monopoly”, if you want to use that word. Property confers upon the owners the right to exclude all others from use, by definition. Property is not economically harmful, property is economically essential. The issue is whether a patent is a valid form of IP. For the reasons set out elsewhere in this book, I don’t believe that it is, but the “philanthropic bed” example is pointless.


The manufacturer in the “bed” example cannot be blamed for seeking patent protection, when such is legally available. It’s true that in a world without patent, the law would not prevent competitors from using the manufacturer’s invention. There would surely be much more “competition” in the use of the invention. Is that sort of “competition” necessarily economically good? 


The same anti-patent argument above could be applied to physical goods, like a factory, with equally absurd results. In a world without physical property rights, the law would not prevent competitors from storming the gates of the bed factory and taking over the machines. There would be a lot more “competition” over the use of the assembly line, rather than the “monopolistic” use that occurs under property laws.


Do you see? The fundamental economic question is not “competition” or “innovation”. The fundamental economic, philosophical and moral question is property. If there is a valid property right, it should be enforced. If there isn’t, it shouldn’t.


Long’s “The Information-Based Argument”


Though never justified, copyright laws have probably not done too much damage to society so far. But in the Computer Age, they are now becoming increasingly costly shackles on human progress.


Consider, for instance, Project Gutenberg, a marvelous non-profit volunteer effort to transfer as many books as possible to electronic format and make them available over the Internet for free. (For information about Project Gutenberg, contact the project director, Michael S. Hart, at Unfortunately, most of the works done to date have been pre-20th-century — to avoid the hassles of copyright law. Thus, copyright laws today are working to restrict the availability of information, not to promote it. (And Congress, at the behest of the publishing and recording industries, is currently acting to extend copyright protection to last nearly a century after the creator's death, thus ensuring that only a tiny fraction of the information in existence will be publicly available.)[44]


This is just silly. Long has long ago given up any attempt at discussing property rights, and is simply whining because some non-profit project isn’t allowed to make an e-book out of “Gone With The Wind”.


Yes, of course information is good. Yes, of course IP rights serve to limit access to information. So what? This is no more of an argument than saying that a Manhattan penthouse apartment is good, that the security guard is limiting my access, and therefore a building cannot be property.


More importantly, modern electronic communications are simply beginning to make copyright laws unenforceable; or at least, unenforceable by any means short of a government takeover of the Internet — and such a chilling threat to the future of humankind would clearly be a cure far worse than the disease. Copyright laws, in a world where any individual can instantaneously make thousands of copies of a document and send them out all over the planet, are as obsolete as laws against voyeurs and peeping toms would be in a world where everyone had x-ray vision.[45]


This is just baseless fearmongering. Sure, enforcing IP is a challenge, just like enforcing physical property rights are a challenge. But the free market is great at responding to challenges. The greatest barrier to IP enforcement over the long run is not technological, but philosophical.


Long’s “First Tolkien Story”


Here's a story that illustrates some of the needless irritation that intellectual property laws can cause.


Several years ago the avant-garde film animator Ralph Bakshi decided to make a movie of J. R. R. Tolkien's classic fantasy trilogy The Lord of the Rings. Or rather, he decided to split the trilogy into two movies, since the work is really too long to fit easily into a single film.


So Bakshi started off with Lord of the Rings (Part One). This movie covered the first volume of the trilogy, and part of the second volume. The second movie was to have covered the rest of the second volume, and then the whole of the third volume. To make the first movie, then, Bakshi needed to buy the rights to the first two volumes, and this is what he (or, presumably, his studio) did.


But Bakshi never got around to making the second movie (probably because the first movie turned out to be less successful financially than had been anticipated).


(Note: abandonment of un-profitable projects is the market working correctly.)


Enter Rankin-Bass, another studio. Rankin-Bass had made an animated TV-movie of Tolkien's earlier novel The Hobbit, and they were interested in doing the same for the second part of Lord of the Rings, left unfilmed by Bakshi.


But there was a problem. Bakshi's studio had the rights to the first two volumes of the trilogy. Only the rights to the third volume were available. So Rankin-Bass' sequel (released as The Return of the King) ended up, of necessity, covering only the third volume.[46]


(Note: Rankin-Bass could have purchased the rights to volume 2, and chose not to.)


Those events from the second volume that Bakshi had left unfilmed were simply lost. (Not even flashbacks to events in the first two volumes were permitted — although flashbacks to The Hobbit were okay, because Rankin-Bass had the rights to that.)


Video catalogues now sell The Hobbit, The Lord of the Rings, and The Return of the King as a unified package. But viewers unfamiliar with the books will be a bit puzzled. In the Bakshi film, the evil wizard Saruman is a looming force to be reckoned with; in the Rankin-Bass sequel, he is not even mentioned. Likewise, at the end of the Bakshi film, Frodo, Sam, and Gollum are traveling together; at the beginning of the Rankin-Bass sequel we find them split up, without explanation. The answers lie in the unfilmed portion of the second volume, which deals with Saruman's defeat, Gollum's betrayal of Frodo, Sam's battle with Shelob, and Frodo's capture by the Orcs. Not unimportant events, these. But thanks to intellectual property laws, the viewer is not allowed to know about them.[47]


No, thanks to intellectual property laws, investors are routinely willing to risk millions of dollars creating films for our entertainment, in the hopes that they can realize a profit by having the exclusive right to market it. The belief that major motion pictures, like The Hobbit or Lord of the Rings, would be produced without IP is like believing that an automobile factory would be produced without a property right in the assembly line.


[Are missing plot elements in a cartoon] a catastrophe? I suppose not. The æsthetic unity and continuity of a work of art was mangled, pursuant to the requirements of law. But it was just an animated TV-movie. So what?[48]


So what, indeed. I agree that the artistic integrity of the trilogy was compromised. But the culprit was not IP. The culprit was the box-office failure of the avant-garde filmmaker’s work. Libertarians all understand that failed economic ventures must be allowed to fail, so that scarce resources (including scarce intellectual resources), may be reallocated to their more highly valued use.


Yet again, it must be pointed out that the type of problem presented here is not unique to IP. One could easily find examples where real estate developments remained unfinished, or were only finished in a compromised fashion compared to original plans. Is this an argument against the validity of property? No, no, no.


So what, perhaps. But my [artistic mangling of Tolkien] story does serve to cast doubt on the idea that copyright is a bulwark of artistic expression. When a work of art involves reworking material created by others (as most art historically has), copyright laws can place it in a straitjacket.


This is so completely wrong I lack sufficient adjectives. Long is talking about people who willingly risked millions of dollars and years of time to produce an animated film based on a classic series of books. Other than the very rare case of a wealthy philanthropist funding a pet project, nobody, repeat nobody is going to invest millions of dollars producing entertainment unless there is a copyright. To do so would defy the logic of human action.


None of this is to suggest that the entertainment industry has any entitlement to profit, or to even exist. With the advent of automobiles, the once-profitable horse-and-buggy industry became extinct. But this was because cars offered a superior alternative in personal transportation, not because people decided that there was no valid property rights in horses and buggies, or the associated farms and factories.


Long’s “Alternatives To Intellectual Property Rights”


I may have given the impression, thus far, that intellectual property rights serve no useful function whatever. That is not my position. I think some of the ends to which copyrights and patents have been offered as the means are perfectly legitimate. I believe, however, that those ends would be better served by other means.[49]


Having ignored the philosophy and botched the economics, Long ventures into legal theory:


Suppose I pirate your work, put my name on it, and market it as mine. Or suppose I revise your work without your permission, and market it as yours. Have I done nothing wrong?


On the contrary, I have definitely committed a rights-violation. The rights I have violated, however, are not yours, but those of my customers. By selling one person's work as though it were the work of another, I am defrauding those who purchase the work, as surely as I would be if I sold soy steaks as beef steaks or vice versa. All you need to do is buy a copy (so you can claim to be a customer) and then bring a class-action suit against me.[50]


Long is trying to show that plagiarism without copyright constitutes fraud against the customers, while not harming the author. He obviously does not realize that property is the basis of any lawsuit.


Fraud occurs when a victim is damaged due to a reliance on an intentional deception. There are three essential elements to a fraud claim – deception, reliance, and damages.  The plagiarist is deceiving the customers by lying about authorship, and the customers are relying on the deception. But how are the customers damaged? After all, they got the book they paid for.


Long’s analogy fails.  Plagiarism is not like selling “soy steaks as beef steaks”. It’s like selling beef steaks grown on Jim’s farm claiming they were beef steaks grown on Bob’s farm. The content is identical.  The only thing the customers are being cheated out of is the satisfaction in knowing they are reading the work of a particular writer. In other words, to show fraud we would have to find a compensable value present in the reputation of the original author.


But wait a minute, a value in reputation is a form of intellectual property. Finding a property right in one’s reputation is the basis for laws against defamation (i.e. libel and slander). Property rights in reputation are arguably more tenuous than copyright, yet Long doesn’t seem to realize that his proposed fraud lawsuit hangs by that tiny thread.


With copyright, correctly understood, plagiarism is a form of theft from the author. The plagiarist expropriates the productive capacity of the author, then uses that productive capacity to mass-produce copies, then contracts to sell copies to the customers. It’s like manufacturing goods with stolen machinery.


Whether the customers are damaged will depend on whether they are made to return the goods. Without copyright, we really have no common law remedy against plagiarism, because damages are always related to the concept of property.


There are other legal options available to the creators of intellectual products. For example, many software manufacturers can and do place copy-protection safeguards on their programs, . . .[51]


Copy-protect exists to protect property, like locks on a door. Without IP, what would be the purpose of copy-protect? It would be protecting something that didn’t belong to you, like putting a lock on the door to an abandoned, un-owned building.


 . . . or require purchasers to sign contracts agreeing not to resell the software. [52]


Sorry, but one may only contract with that which is one’s own property. If there is no intellectual property right in software, there is no basis for any kind of contract regarding it. When Long and others have suggest contracts as an “alternative” to IP, they really are just demonstrating their deep down understanding that IP is valid property and may be the subject matter of a valid contract.


Likewise, pay-TV satellite broadcasters scramble their signal, and then sell descramblers.[53]


Pointing out copy-protect strategies like scrambling serve to illustrate that information is useful, controllable, scarce, contestable, and rivalrous.  Intellectual works thus have all the attributes of legitimate property. Again, copy-protect without IP is nonsense.


None of these techniques is foolproof, of course. A sufficiently ingenious pirater can usually figure out how to get around copy protections or descramble a signal. And conditional-sale contracts place no restriction on third-party users who come by the software in some other way. Still, by making it more difficult to pirate their intellectual products, such companies do manage to decrease the total amount of piracy, and they do stay in business and make profits.[54]


By waving the black flag of “pirates”, Roderick Long is waving the white flag of “surrender”. Pirates are thieves and trespassers. If there is no property, there are no pirates, only explorers and sightseers. If there are pirates, there must be property.


But what if I do go ahead and market your work without your permission, and without offering you any share of the profits? [55]


Long gives up the fight here, by referring to “your” work. “Your” means “owned by you”. No property means no ownership. Without IP, it’s just “the” work.


Is there nothing wrong with [IP pirating]? Can nothing be done about this?


In the case [of unauthorized software copying], I don't think what I've done is unjust. That is, it's not a violation of anyone's rights. But it's tacky. Violating someone's rights is not the only way one can do something wrong; justice is not the only virtue.[56]


Long is just philosophically muddled. All rights are property rights. All wrongs are property violations. In fact, violating someone’s rights is the only way to do something wrong. Without IP, there is absolutely nothing wrong with plagiarism or unauthorized copying. Long says copyright violation is “tacky”. Long is discussing one of the most important philosophical issues of our time, and his grand conclusion of how best to conceptualize the expropriation of intellectual work is an undefined term borrowed from Miss Manners? Tacky, indeed.


But justice is the only virtue that can be legitimately enforced. If I profit from pirating your work, you have a legitimate moral claim against me, but that claim is not a right. Thus, it cannot legitimately use coercion to secure compliance. But that doesn't mean it can't be enforced through other, voluntary methods.


A good deal of protection for the creators of intellectual products may be achieved through voluntary compliance alone. [57]


Wait, what? Protection? For creators of intellectual products? If there is no property, there’s nothing to protect. If they are protecting something, they are sure acting like it’s property. If others are trying to get at what they are protecting, humans are acting as though intellectual objects are scarce and rivalrous goods.


Consider the phenomenon of shareware, in which creators of software provide their products free to all comers, but with the request that those who find the program useful send along a nominal fee to the author. Presumably, only a small percentage of shareware users ever pay up; still, that percentage must be large enough to keep the shareware phenomenon going.[58]


The existence of copyright obviously does not prohibit shareware, so it’s difficult to see what Long’s point might be in bringing that up.


There are more organized and effective ways of securing voluntary compliance, however. I have in mind the strategy of boycotting those who fail to respect the legitimate claims of the producers. Research conducted by libertarian scholar Tom Palmer has turned up numerous successful instances of such organized boycotts. In the 1930's, for example, the Guild of Fashion Originators managed to protect dress styles and the like from piracy by other designers, without any help from the coercive power of government.[59]


The Fashion Guild boycott is a nice libertarian example of how a free market can enforce intellectual property rights. Boycotts can be successful by convincing the public that wrongdoers are to be avoided. Absent an understanding of a property right in the designs, there is simply no basis for a boycott, because “pirates” would have done nothing wrong.


A voluntary boycott is actually a much safer tool than government for protecting the claims of intellectual producers, because, in the course of trying to strike a pragmatic balance between the economic power of producers and the economic power of consumers, a private effort is more likely than a government monopoly freed from market incentives to strike an analogous balance between the legitimate moral claims of the two groups — the producers' moral claim to remuneration, and the consumers' moral claim to easily accessible information.[60]


Here Long is admitting that intellectual producers would have claims against pirates, as if that didn’t require property. Whether construed as a “legal” claim or a “moral” claim, no property means no claim.


Something more formal can easily be imagined. In the late Middle Ages a voluntary court system was created by merchants frustrated with the inadequacies of governmentally-provided commercial law. This system, known as the Law Merchant ("law" being the noun and "merchant" the adjective), enforced its decisions solely by means of boycott, and yet it was enormously effective. [61]


Yes, but their basis for identifying wrongs was property violations. 


Suppose producers of intellectual products — authors, artists, inventors, software designers, etc. — were to set up an analogous court system for protecting copyrights and patent rights — or rather, copyclaims and patent claims (since the moral claims in question, though often legitimate, are not rights in the libertarian sense). Individuals and organizations accused of piracy would have a chance to plead their case at a voluntary court, but if found guilty they would be required to cease and desist, and to compensate the victims of their piracy, on pain of boycott.[62]


The system Long envisions sounds lovely. But whether Long uses the word “rights” or “claims” makes no difference. Long is speaking of his belief that it is wrong to use something created by another without consent. That belief has a name. And its name is “property”.


What if this system went too far, and began restricting the free flow of information in the same undesirable ways that, I've argued, intellectual property laws do? [63]


Apparently Long realizes that he’s just renaming property.


This is certainly a possibility. But I think the danger is much greater with coercive enforcement than with voluntary enforcement. [64]


Yes, there is a problem with coercive enforcement. Of anything. This is an argument against the state, not property. 


As Rich Hammer likes to point out: ostracism gets its power from reality, and its power is limited by reality. As a boycotting effort increases in scope, the number and intensity of frustrated desires on the part of those who are being deprived by the boycott of something they want will become greater. As this happens, there will also be a corresponding increase in the number of people who judge that the benefits of meeting those desires (and charging a hefty fee to do so) outweigh the costs of violating the boycott. Too strenuous and restrictive a defense of copyclaims will founder on the rock of consumer preferences; too lax a defense will founder on the rock of producer preferences.[65]


Napster was a peer-to-peer file sharing site, with 100s of thousands of song titles available for free, and some 80 million registered users.[66] This occurred in a world with copyright. I ask you to first imagine a world without copyright, and without a concept of intellectual property. In that world, now imagine organizing a boycott of Napster at the height of its popularity.


Long’s “Second Tolkien Story”


Let me close with a second story about Tolkien and his famous trilogy. The first edition of The Lord of the Rings to be published in the United States was a pirated edition from Ace Books. For reasons which I now forget, Tolkien could not take legal action against Ace. But when Ballantine came out with its own official author-approved American edition of The Lord of the Rings, Tolkien started a campaign against the Ace edition. The Ballantine edition was released with a notice from Tolkien in a green box on the back cover stating that this was the only authorized edition, and urging any reader with respect for living authors to purchase no other. Moreover, every time he answered a fan letter from an American reader, Tolkien appended a footnote explaining the situation and requesting that the recipient spread the word among Tolkien fans that the Ace edition should be boycotted.


Although the Ace edition was cheaper than the Ballantine, it quickly lost readers and went out of print. The boycott was successful.


It might be objected that Tolkien devotees tend to be more fanatical than the average readers, and so such a strategy of boycott could not be expected to succeed in ensuring such loyalty generally. True enough. But on the other hand, Tolkien's boycott was entirely unorganized; it simply consisted of a then-obscure British professor of mediæval language and literature scribbling hand-written responses to fan letters. Think how effective an organized boycott might have been![67]


The boycott worked because Tolkien, his publisher, and the customers understood that Ace was violating intellectual property rights. Absent that property right, there is no basis for Tolkien to suggest a boycott, and no reason for the customers to participate.


Final thought on Roderick Long’s paper


Long began by noting that some libertarians view intellectual property as just that – property. Long would have done much better to actually confront that philosophical issue and apply praxeological reasoning. Instead, Long mostly avoids any consideration of what scarcity and rivalry mean, and how those concepts justify property rights.


Long eventually admits the failure of his own position on IP by conceding that violations are morally wrong. It would have saved us all some trouble if he would have simply acknowledged that this finding can only be based on property rights, and nothing else. Instead, Long chooses subterfuge by making a false distinction between “moral rights” and “legal rights”, and renaming “rights” as “claims”.


I cannot help but be puzzled by the extraordinary lack of rigor shown by the libertarian community in analyzing the issue of intellectual property. Troubling as the thought may be, I must consider the possibility that the “libertarian” anti-IP position is motivated by pure opportunism. Is it possible that normally diligent economists and philosophers have made a calculated assessment that their own intellectual property is of little economic value, while the potential audience of amoral anti-IP sympathizers is vast?


[1] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[2] Id.

[3] Id

[4] Bowker, R. “Copyright, Its History and Its Law” (1912); see also Birrell, A., “The Law and History of Copyright in Books  (1899).


[5] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[6] Id

[7] See Hoppe, Hans-Hermann Theory and History (2004).

[8] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[9] Id

[10] Id

[11] Id

[12] Id


[13] Id

[14] Rothbard, Murray N. “Human Rights as Property Rights”, Mises Daily (2007)

[15] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[16] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[17] Id

[18] Id

[19] Id

[20] Mises, L.V. “The Ultimate Foundation of Economic Science”, sect. 5

[21] See discussion of The Mises Test of External Reality under section II of this work

[22] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[23] Id

[24] Id

[25] Tucker, Benjamin “Instead of a Book, By a Man Too Busy to Write One: A Fragmentary Exposition of Philosophical Anarchism” (New York: Tucker, 1893), p. 13.

[26] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[27] Id

[28] Long’s “saber tooth tiger” hypothetical involved a patent for a levitation machine. As explained, I do not support IP rights on patents generally. I was assuming an IP right in the design of the machine for sake of Long’s hypothetical.

[29] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[30] Rand,  Ayn “Capitalism: The Unknown Ideal” (New York: New American Library, 1967), p. 133.

[31] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[32] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[33] Id

[34] See my blog post “Copying is not Theft by Nina Paley”.

[35] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[36] Id

[37] See “Take on Me” Wikipedia

[38] See “Feel This Moment” Wikipedia

[39] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[40] Id

[41] Id

[42] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[43] See Boldrin & Levine “Against Intellectual Monopoly” Cambridge University Press (2008)

[44] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[45] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[46] Long, Roderick “The Libertarian Case Against Intellectual Property”, Formulations (1995)

[47] Id.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Id.

[59] Id.

[60] Id.

[61] Id.

[62] Id.

[63] Id.

[64] Id.

[65] Id.

[67] Id.