Vulgar Libertarianism Watch, Part XII (but this ought to count for two or three, at least)

What to make of this?

The expansion of human creativity, wealth and liberty made possible by the digital revolution will best be accomplished in a world respectful of property rights, writes The Progress & Freedom Foundation President Ray Gifford. In the Progress on Point "The Place for Property and Commons," Gifford cites the agricultural and industrial revolutions of the 18th and 19th centuries, and in particular the "enclosure movement" in England in the 18th century, to demonstrate that progress and societal well-being can result from a greater emphasis on property rights and the return those rights give to producers....

The digital revolution, writes Gifford, is leading to massive increases in wealth and productivity, as well as changes to the social and political structures of our age, just as the agricultural and industrial revolutions did in their time. But those in the commons movement are mistaken in arguing that the digital revolution threatens to foreclose knowledge or innovation. When English common land was enclosed for more efficient private farming, this shift to a property rights model created a manifold increase in food production, as well as a new labor force that fueled the industrial revolution.

The "return... to producers" bit is especially hilarious, by the way. The enclosures were aimed precisely at reducing the return to producers to the smallest amount feasible--a fact that Gifford can verify for himself by a simple survey of the contemporary pro-enclosure literature. The employing classes of that day did everything but twirl their moustaches, chortle "We are evil, heh heh," and tie Little Nell to the train tracks.

In his speech itself, Gifford facilely describes the enclosures as "stronger property rights in land"--as opposed to "the old rules of peasants eking out a living on the commons." Now, some backward-thinking folks might say that those "old rules" were property rights, and that enclosures were a violation of those property rights. It resulted in "stronger property rights in land," all right: stronger property rights for the thief over his stolen loot.

And naturally, Gifford can't resist defending the robbery on the grounds that the thieves made better use of the property (supposedly scientific farming would never have come about, otherwise). Hmmm.... that's pretty much what the state of Connecticut was saying in the Kelo case, I believe.

What Gifford calls "property" in the digital sphere is an example of what Hodgskin called an "artificial," as opposed to a "natural," right of property. Property in tangibles and land is rooted in the fact of physical reality that two objects cannot occupy the same space at the same time. My wallet cannot be in my pocket and yours at the same time. And when I occupy a piece of ground, and homestead it with my labor, it precludes your doing the same. By the very fact of maintaining my occupancy, I am at the same time excluding others. And I can call on my neighbors, if necessary, to support me in maintaining my occupancy against any attempt to dispossess me.

"Intellectual property" [sic], on the other hand, is a state-granted monopoly on something that is not finite by nature, and can be used by an unlimited number of people at the same time. And unlike tangible property, I cannot defend intellectual "property" rights by the mere fact of possession. In fact, I have to call on the state to invade someone else's space and coercively prevent him from arranging his own tangible property in a configuration, or using it to organize information in a configuration, over which the state has granted me a monopoly. Would-be enforcers of "intellectual property" find that there's always a way around their measures, requiring ever more intrusive forms of surveillance to control what we can do with our own stuff. The intrusive measures haven't yet reached this level of absurdity--but give it time.

Intellectual property, in other words, is theft. Gifford comes close to admitting as much himself:

What do I mean by “legislative regulation?” Of course, in one sense, all rights are contingent upon their enforcement by the state. However, in the digital sphere, these rights are acutely the prerogative of the legislative sphere, and its extension, the administrative sphere. Thus, property rights for network owners are contingent upon their construction by the FCC and the state utility commissions. Can you, as a network owner, exclude certain content or uses of your network? That is a question for the FCC to answer. And then there is copyright and patent law, which constitutionally are matters for legislative regulation. The Congress gets to define the parameters of these intangible property rights, and their terms too.

In other words, they're just some shit somebody made up.

I contrast this “legislative regulation” with “rule of law regulation.” Though admittedly a matter of degree and not kind, “rule of law regulation” as experienced through common law norms of property and contract and enforced through the formalism of courts is more stable and, well, normative than the less fixed legislative regulation.

This fact of legislative regulation in turn means there is intense pressure and grand incentives to seek definitions of the rights favorable to a given interest. There is, in other words, an enhanced incentive in the world of legislative regulation for rentseeking. Furthermore, there is less stability in the rights defined under legislative regulation, because they are always contingent upon the next session of congress or the next meeting of the regulatory commission.

You don't say! "Rentseeking"... could you describe that for us, Mr. Gifford? You wouldn't have heard of something called the RIAA, would you, Mr. Gifford?

There really is a parallel between the enclosures and digital copyright law: both are cases of privileged interests acting through the state to rob people of genuine property rights.

Shameless apologetics for the rich and powerful, wrapped up in faux populism. Isn't one Tom Friedman enough?

Hat tip to Jesse Walker, who forwarded the link and suggested it might be just the thing for another "Vulgar Libertarianism" piece.

corporate welfare , copyright , digital copyright , intellectual property , property rights , property , free markets , free market , tragedy of the commons , commons