Scott Adams' Cognitive Dissonance
Scott Adams made a couple of posts at Dilbert Blog in the past week that probably irritated the shit out of a lot of people.
In "Is Copyright Violation Stealing?" he cited this anti-copyright argument that he found objectionable:
So the creator loses the right to control what someone else does with his own property in his own home. Boo hoo. When the slaves were emancipated, the slave owner also lost a preexisting right of control. The proper question to ask is whether the "property right" involved in a particular form of control is a legitimate one.
This is a remarkably poor analogy. Underpants are a physical object that can only be in one place at a time. When the neighbor borrows my underpants, I no longer have that particular pair in my possession any more. His use of them logically precludes my being able to use them. Physical property is a zero-sum game, in which one person's possession necessarily comes at the expense of everyone else's possession. That is exactly why property rights are a logical conflict avoidance mechanism for physical property: given the fact that a physical object can only be possessed by one person at a time, property rules establish who the rightful owner is and prevent conflict between multiple claimants trying to possess the same thing at the same time.
For underpants to be a good analogy, they would have to be reproducible at zero marginal cost so that the same identical pair of underpants could be in ten million dresser drawers at the same time, without the original owner ever losing physical possession of his pair of underpants.
Mark Poncelet wrote a hilarious parody of Adams' underpants analogy, describing how the underpants thing would actually work if it were governed by the Digital Millennium Copyright Act. You never really buy those underpants, see. You just sign a license agreement. You have to pay again every time you put them on. (And if Bill Gates provided your underwear, you'd get a "New security updates are ready to be downloaded!" message every time you put them on).
As far as I can tell, this is the only attempt in either post that Adams made at a logical defense of "intellectual property." So as lame as it is, he at least deserves credit for attempting to justify it with an argument--as opposed to assuming it as self-evidently true and then resorting to ad hominems against those who disagree, as he does the rest of the time.
The argument, though, is still lame. Physical property rights are a direct outgrowth of the natural concept of possession. Because the same physical object can be possessed by only one person at a time, and the same space can be occupied by only one person at a time, my defense of my tangible property rights follows of necessity from my occupancy of it. All I have to do to enforce my tangible property rights claims is to maintain possession against any would-be invader. If necessary, I can call on my neighbors for help. But to enforce an "intellectual property" claim, in contrast, I have to invade someone else's space to make sure he isn't using his own property in a way the state has conferred an exclusive right on me to do.
Adams parleyed this "cognitive dissonance" bit into a second post: "Find the Cognitive Dissonance."
So, for "cognitive dissonance" to come into play, doesn't there have to be an actual contradiction between the self-image and behavior of the person involved? If I don't believe intellectual property is legitimate, and I don't believe copyright violations are stealing, then file-sharing can't be cognitive dissonance, now, can it? Adams' cognitive dissonance argument applies only to someone who accepts his first premise (and by the way, anyone who accepts that premise has no principled basis for disobeying the Nuremberg Laws). Adams may consider my arguments against "intellectual property" to be absurd, but if I find them convincing how can I be doing anything clearly opposed to my self-image? Adams was having so much fun playing around with a half-understood concept from freshman psychology, he obviously didn't take time to think things through very well. Too bad he didn't take the freshman class in logic while he was at it.
That's only an "absurd rationalization" if you believe copyright law is valid. Otherwise, it's simply an argument. It may be an argument that Adams disagrees with, but if so he ought to put more effort into demonstrating why it's wrong and less effort into psychoanalyzing those he disagrees with. But as we already saw, his only actual attempt at such an "argument" for intellectual property was lameness itself. It's pretty depressing to see a cartoonist who's normally so good at skewering the bullshit claims of those in authority, himself uncritically regurgitating the kind of corporate-speak bullshit you'd find here.
To see just how lame Adams' ad hominems really are, just consider how easy it is to turn the method around and use it against him.
"Intellectual property" opponents believe that copyright is stealing, pure and simple. If a cave man figured out how to start a fire by rubbing two sticks together, and thereafter went around forcibly collecting tribute from anyone else rubbing two sticks together on the grounds that he had an exclusive right to perform that act, that would be no different in principle from the actions of Gates or Ballmer or the RIAA. Copyright is simply the use of force to collect tribute from other people for using their own property as they see fit. Now, if we start with the assumption that copyright is theft, and treat any argument against it as an absurd rationalization for violating a self-evident truth, we can formulate the following cognitive dissonance argument against Scott Adams:
1. Stealing is bad.
2. Using force to make someone else pay tribute for using his own property the way he wants (i.e., copyright) is stealing.
3. I make money by copyright.
4. But since I know I'm a good person, my reason why it's okay for me to steal is (insert absurd rationalization, probably involving an argument to the effect that stealing isn't really stealing when its sanctioned by a gang of thugs calling itself "the government").
Now, mind you, I'm not making such an argument, because it's just as much an intellectually dishonest argument when I use it as when Adams uses it. It's intellectually dishonest because it assumes that Adams implicitly accepts Premise 2. If Adams does not believe copyright is theft, he may be in error. But he is not acting inconsistently with his own beliefs.
But then, I guess Adams has more invested in being right than I have.
In "Is Copyright Violation Stealing?" he cited this anti-copyright argument that he found objectionable:
“Copyright violation is not stealing. If I steal something physical, the original owner no longer has it. But if I violate a copyright, the original owner has lost nothing tangible. So while copyright violation is illegal, it’s very different from stealing. In fact, it’s good publicity and might even benefit the person from whom you stole.”
I understand the point that copyright violations are different from theft of physical property, but is it a victimless crime?
When you violate a copyright, you take something valuable from the copyright owner that he can’t get back. You take his right to control where his creation is viewed and how. It might be your opinion that the “free publicity” you provide outweighs the loss – and you might be right – but you’ve taken from the creator the right to make the publicity-versus-overexposure decision himself. That might not seem like a big deal to you, but it feels that way to the person who lost control of his art.
So the creator loses the right to control what someone else does with his own property in his own home. Boo hoo. When the slaves were emancipated, the slave owner also lost a preexisting right of control. The proper question to ask is whether the "property right" involved in a particular form of control is a legitimate one.
Let me give you an analogy. Let’s say your neighbor sneaks into your house while you are gone and borrows your underpants. After wearing your underpants all day, the neighbor launders them, folds them neatly, and returns them to your house in perfect condition, all while you are gone. He tells himself that he will say good things to people about your business – whatever business that is – so this arrangement is good publicity for you. The next time he sees you, he tells you about the underpants because he figures you’ll thank him for saying nice things about his business. He informs you that it’s a win-win scenario.
Given that you have full use of your property (the underpants), is it a victimless crime? I would say the owner of the underpants lost something even though his property is physically the same.
This is a remarkably poor analogy. Underpants are a physical object that can only be in one place at a time. When the neighbor borrows my underpants, I no longer have that particular pair in my possession any more. His use of them logically precludes my being able to use them. Physical property is a zero-sum game, in which one person's possession necessarily comes at the expense of everyone else's possession. That is exactly why property rights are a logical conflict avoidance mechanism for physical property: given the fact that a physical object can only be possessed by one person at a time, property rules establish who the rightful owner is and prevent conflict between multiple claimants trying to possess the same thing at the same time.
For underpants to be a good analogy, they would have to be reproducible at zero marginal cost so that the same identical pair of underpants could be in ten million dresser drawers at the same time, without the original owner ever losing physical possession of his pair of underpants.
Mark Poncelet wrote a hilarious parody of Adams' underpants analogy, describing how the underpants thing would actually work if it were governed by the Digital Millennium Copyright Act. You never really buy those underpants, see. You just sign a license agreement. You have to pay again every time you put them on. (And if Bill Gates provided your underwear, you'd get a "New security updates are ready to be downloaded!" message every time you put them on).
Some people argue that copyright laws create an artificial property right that is inherently different, and less worthy than the more natural right to own physical property, such as your clothes. But it seems to me that you only own your clothes because the law says so. Absent any artificial laws, I could go into your closet and wear your clothes whenever I want. All property rights are artificial. Copyrights are no different.
As far as I can tell, this is the only attempt in either post that Adams made at a logical defense of "intellectual property." So as lame as it is, he at least deserves credit for attempting to justify it with an argument--as opposed to assuming it as self-evidently true and then resorting to ad hominems against those who disagree, as he does the rest of the time.
The argument, though, is still lame. Physical property rights are a direct outgrowth of the natural concept of possession. Because the same physical object can be possessed by only one person at a time, and the same space can be occupied by only one person at a time, my defense of my tangible property rights follows of necessity from my occupancy of it. All I have to do to enforce my tangible property rights claims is to maintain possession against any would-be invader. If necessary, I can call on my neighbors for help. But to enforce an "intellectual property" claim, in contrast, I have to invade someone else's space to make sure he isn't using his own property in a way the state has conferred an exclusive right on me to do.
You may now activate your cognitive dissonance and explain in the comments that every time you violate a copyright, the free publicity it generates for the artist is proof of your goodness.
Adams parleyed this "cognitive dissonance" bit into a second post: "Find the Cognitive Dissonance."
If you’ve read anything about experiments to produce cognitive dissonance, you know this was the perfect setup. You can produce dissonance by putting a person in a position of doing something that is clearly opposed to his self image. Then wait for his explanation. The explanation will seem absurd to anyone who doesn’t share the dissonance. In this case the model that produced it was…
1. Good people are not criminals.
2. Criminals break laws.
3. I break copyright laws.
4. But since I know I am a good person, my reason why it’s okay to violate copyright laws is (insert something absurd).
The fascinating thing about cognitive dissonance is that it’s immune to intelligence. No matter how smart you are, you can’t think your way out of it. Once your actions and your self image get out of sync, the result is an absurd rationalization.
So, for "cognitive dissonance" to come into play, doesn't there have to be an actual contradiction between the self-image and behavior of the person involved? If I don't believe intellectual property is legitimate, and I don't believe copyright violations are stealing, then file-sharing can't be cognitive dissonance, now, can it? Adams' cognitive dissonance argument applies only to someone who accepts his first premise (and by the way, anyone who accepts that premise has no principled basis for disobeying the Nuremberg Laws). Adams may consider my arguments against "intellectual property" to be absurd, but if I find them convincing how can I be doing anything clearly opposed to my self-image? Adams was having so much fun playing around with a half-understood concept from freshman psychology, he obviously didn't take time to think things through very well. Too bad he didn't take the freshman class in logic while he was at it.
For example, one of my favorite absurd rationalizations for violating copyrights goes like this:
1. Information is free by nature.
2. When rich people cause Congress to create copyright laws, they are taking something from me that used to be free.
3. Therefore, I am not stealing. I’m just taking back what was taken from me.
That's only an "absurd rationalization" if you believe copyright law is valid. Otherwise, it's simply an argument. It may be an argument that Adams disagrees with, but if so he ought to put more effort into demonstrating why it's wrong and less effort into psychoanalyzing those he disagrees with. But as we already saw, his only actual attempt at such an "argument" for intellectual property was lameness itself. It's pretty depressing to see a cartoonist who's normally so good at skewering the bullshit claims of those in authority, himself uncritically regurgitating the kind of corporate-speak bullshit you'd find here.
To see just how lame Adams' ad hominems really are, just consider how easy it is to turn the method around and use it against him.
"Intellectual property" opponents believe that copyright is stealing, pure and simple. If a cave man figured out how to start a fire by rubbing two sticks together, and thereafter went around forcibly collecting tribute from anyone else rubbing two sticks together on the grounds that he had an exclusive right to perform that act, that would be no different in principle from the actions of Gates or Ballmer or the RIAA. Copyright is simply the use of force to collect tribute from other people for using their own property as they see fit. Now, if we start with the assumption that copyright is theft, and treat any argument against it as an absurd rationalization for violating a self-evident truth, we can formulate the following cognitive dissonance argument against Scott Adams:
1. Stealing is bad.
2. Using force to make someone else pay tribute for using his own property the way he wants (i.e., copyright) is stealing.
3. I make money by copyright.
4. But since I know I'm a good person, my reason why it's okay for me to steal is (insert absurd rationalization, probably involving an argument to the effect that stealing isn't really stealing when its sanctioned by a gang of thugs calling itself "the government").
Now, mind you, I'm not making such an argument, because it's just as much an intellectually dishonest argument when I use it as when Adams uses it. It's intellectually dishonest because it assumes that Adams implicitly accepts Premise 2. If Adams does not believe copyright is theft, he may be in error. But he is not acting inconsistently with his own beliefs.
But then, I guess Adams has more invested in being right than I have.
posted by Kevin Carson | 11:47 AM
22 Comments:
I think the point of the underwear analogy is that someone else wearing your underwear without your permission is kind of creepy, not that it deprives you of using them. Seems more like an appeal to emotion than any sort of logical argument.
Actually, I find it interesting the way that copyright laws have been rendered almost completely ineffective by free exchange of data.
It's also interesting that the distribution of unprotected music files (for example) has been enthusiastically embraced by independent artists who have little success with the large record companies who are driving the anti-filesharing propaganda.
I usually find it rather amusing to hear extremely wealthy pop stars complain about the "stealing" of music, when they have made obscene amounts of money already, dependent on a corporate machine geared to make as much money as possible. Have they been sucked into the mindset of the recording industry corporate elite? It seems so.
I suppose Scott Adams is just one of the people that assume they'd make no money without copyright, seeing themselves as dependent on it. I think that filesharing mostly disproves the belief, given that companies selling digital media are still making money, and I suppose given my hypothesis that copyright laws are almost de facto irrelevant.
Really what artists make their money off is patronage - they gain a following that supports them because they want them to produce more of their art. It's a little sad that this gets converted into wishing to force people to pay, just because the state happens to enforce IP. I'm sure if artists were confronted with the real cost of this, it wouldn't be very cost effective in getting a few marginal buyers to stump up the cash.
Logical endpoint of Adams's "your property is whatever the state says it is":
Damn those underground railroaders! Thieves, every one of them! Those slaves are their owners' legal property and livelihood. Take away the slaves, you'll force the plantation owners to go into other businesses and you won't have any cotton! And the world needs cotton!
I hate legal positivists.
In fairness to Adams, I think he stressed the utilitarian aspects of the issue less than some of his commenters. Adams at least stipulated in theory that creators might shift their source of income to secondary activities (like live performances and T-shirts for musicians, or providing software tech support or custom work for OS operating systems). Adams just argued that copyright infringement reduced the creator's discretion as to which business model to adopt.
Some of the commenters, on the other hand, sounded like Lars Ulrich or Bill Gates. Apparently they never heard of Phish or the Grateful Dead.
Other important difference that invalidates the underpants analogy is the problem of privacy.
No one likes that his neighbour enters at home and pick whatever he wants, including underpants. That is, I don't distribute music if I don't want to. I can make my own songs, and nobody can copy them to me, if I want them to remain private.
But when I publish something, I'm renouncing to this privacy. If I give or sell you my underpants, I cannot complain about the use you give to them.
(Sorry for my bad english).
Good point. In fact, I think a better "underpants" analogy is to compare a book or CD to a pair of underpants. When I buy it, it's mine to do with as I see fit. According to the DMCA model of "intellectual property," on the other hand, the RIAA has to trespass in my house to make sure I'm not doing anything with the underpants that they disapprove of.
Ownership is not a gift from the state/law. Take marijuana for example: the state will not enforce anyone's property claims over marijuana, yet plenty of people own it.
Regarding the underwear argument, I think one of the main weaknesses is that the person who borrows underwear without permission is taking a gamble with another person's welfare--it doesn't matter that everything turned out okay in the end, there was still the risk that the owner would have needed the underpants while they were "on loan".
Sorry. I think the whole slavery/underground railroad thing is specious--and in fact ironic--when talking about copyright. Sure, copyright law protects the Man, and rich corporations, but when you make your living, as I do, on the value of my copyrighted words (and I'm by no means rich), you start to feel that people who justify their theft of your work are themselves the Man, since they apparently would like me to work without compensation for their benefit (sounds suspiciously like slavery to me).
Sure, I could do work that doesn't involve copyrights, and not worry so much about the theft of the fruits of my labor (except for the theft of my time by some employer), but I don't, and I get a little bitter when people argue that they should be able to use my work for free because they want to.
And the same argument, at least for me, holds true when you're talking about wealthy musicians or Bill Gates. Simply because they have more doesn't justify theft from them.
Okay, flame away one me.
Just because you have decided to disagree with a law and feel that you are able to rationalize it, isn't it still a law?
Just because some artists are successful enough to be "rich" that somehow invalidates the law. Does that mean that copywrite laws for unsuccessful artists are still valid? Meaning it's not ok to steal from them because they haven't made enough money yet.
I'm sure your arguement will work on speed limit laws too. It's your car, you should be able to drive it as fast as you want. Maybe not. I guess speeding is only ok when you don't get caught.
Your aguments are lame. You are stealing, whether you choose to "believe" it or not.
Just because something is the law, it is right and should be followed without rationalization.
Just because some artist are poor, their work should be unaccessable to people who can't afford the chosen price. Or would it be better if artists were supported by donations?
Based on my observation, speed laws are casually disobeyed by a large number of drivers. This doesn't make them wrong, but it does show how little they get enforced.
Copywrite theft is a more socially accepted version of stealing, though wrong (at least in a legal way)
Specious? Ironic? How so, other than by your pronouncement?
Look, I could care less who the Man is, or whether the law benefits him. What I care about is whether the law has any basis in morality, as my example made clear.
If, as Adams, you believe that whatever the law says is moral, then accept the fact that you would have been a slavery apologist in the early 19th century.
If, on the other hand, you think slavery was wrong, even though it was legal, expect to be requested to give a better answer regarding the validity of copyright than "it's the law". There are some valid defenses of copyright, IMHO. I tend to think that they are outweighed by competing considerations in general, but that much is at least a valid debate. Saying "you're a thief because the law says you are" is a rationalization that would have supported slavery, and, again IMHO, not a valid debating point.
quasibill,
In fairness, I don't think David Shaw endorsed the "if it's the law it's right and should be obeyed" approach. I don't agree with any of those posts, but at least they're wrong in different ways.
David Shaw,
No flaming here. I try to stay civil even when I strenuously disagree, so long as the other person is civil as well.
But I still think you're begging the question by referring to "theft" of your work. I don't think you or Adams have demonstrated that copyright violation is theft in the first place. I don't see how it's "theft" for me, sitting in my own home, to load a CD I purchased outright, and click a series of icons on my computer. I don't recognize a state-granted monopoly on the right to arrange information in a particular configuration aa "property" in any legitimate sense. To repeat, your "intellectual property" right is unenforceable without aggressive invasion of my own tangible property--my home and computer.
As for Bill Gates, leave aside for the moment that I'd like to shove Genuine Advantage so far up his ass he'd have DRM coming out his nose. I don't care that he "has more." I care that the way he got it was by theft: by a state-conferred monopoly, instead of voluntary exchange of labor in a free market.
In a free market, the normal movement of price is toward cost of production, and the normal movement of entrepreneurial profit is toward zero. When an innovation lowers the cost of production, the firm that introduces it gets a short-term entrepreneurial profit from being the first to use it. But unless the state sets up barriers to market entry (like copyrights and patents) competitors will adopt the same innovation and the entrepreneurial profit from being the first to use it will evaporate. State "intellectual property" monopolies are a form of toll gate that hinders the free adoption of innovations and impedes the normal market process of price falling to production cost.
I don't believe copyright is the only way for creators to collect payment for their work, or that wage labor is the only alternative if you don't make money from copyright. In the open source software industry, a majority of income actually comes from perfoming secondary or complementary services related to
a free software package: Red Hat's profit comes from customization and tech support for a Linux OS that is itself uncopyrighted. As for the music industry--ever heard of Phish? The music itself is free. They make money off of concert performances.
By the way, I don't have a dog in this fight. I'm not attempting to "justify" or "rationalize" anything that I'm doing. I've got a crappy dialup connection, and I don't have a feedburner.
I see from your profile that you're in the publishing industry. If you look at the sidebar, you'll notice a book for sale that I wrote. It took me several thousand hours of research and writing. It sells at Amazon for $20.99, and I get $5.25 of that. Although Amazon BookSurge copyrighted it as S.O.P., I have repeatedly announced that I consider the copyright a dead letter. As Woody Guthrie said, "Anybody found copying this without our permission will be considered mighty good friends of ours." I definitely like recouping that five bucks towards the tens of thousands of dollars worth of labor I put in. But I would never attempt to enforce copyright because I consider copyright to be theft. If anything I lose economically by standing by my own principles.
Still, in practical terms, I expect to continue making money off of the book because that $5.25 is a narrow enough margin that nobody else would profit from printing out and binding the pdf to make it worth their trouble. I get a certain economic rent simply from being identified as the author and being the first place people look if they're interested in the book.
The information and entertainment industry could function quite well on that basis, IMO: people collecting entrepreneurial rents for being the first out with something, staying ahead of the game with product innovations to keep themselves competitive against other suppliers, and offering the best complementary services to their product. That would be enough to support a modest income for the actual producers, without the massive tribute currently paid to corporate owners.
Gregory and imma,
Your appeals to the authority of "the law" are so fundamentally at odds with my moral beliefs that there's no point arguing them. The fact that this is a free market anarchist blog should be enough of an indication that such arguments won't wash with me.
But even a statist or an authoritarian should be given pause by quasibill's reference to slavery. If you really believe that the law should be automatically obeyed, you've put yourself into the position of being obliged to apologize for whatever class of cutthroats control the state at any point in history, and justifying whatever ways they choose to grind their heels into people's faces. Once you admit that the law does not necessarily coincide with morality, on the other hand, you're left with the requirement to justify it in moral terms instead of genuflecting blindly toward it.
Suffice it to say that I believe right is right and wrong is wrong, and calling something the "law" does not add a jot or tittle to its rightness IMO, or diminish the wrongness of anything by the least bit.
I believe, with Joe Alexander, that anything genuinely criminal was against the law a hundred years ago. A law telling me what I can ingest into my own body deserves to be trampled underfoot with contempt. And a "law" that creates special privilege, and enables the owning classes to collect tribute from other people's labor, deserves equal contempt.
In general, that's what the state and its laws do: they create privilege.
Kevin,
I've been trying to just limit my contempt to that one argument. Sorry if it hasn't been clear. As I noted, I'm actually quite receptive of some of the arguments in favor of copyright (as opposed to the arguments in favor of patents, where I think there are no valid arguments). I think there's a general, subconscious moral revulsion to certain acts covered by the copyright law, so I could see a bottom up copyright law. It would be far smaller in scope than the current system, but it would still be recognizable.
That said, legal positivist arguments seriously rankle me. When Adams used such, I wanted to make it explicit. That's the only point I was trying to make both times.
Kevin,
I appreciate your response, and I understand your reasoning, though I still can't agree.
Perhaps that's because I'm thinking of copyright in a very narrow sense--you indicate a much broader approach in viewing copyrights as a barrier to entry (I agree that patents are indeed barriers to entry).
My narrow view is that I have a right to control the use of my labor--that I control my means of production and also control what I produce and how it might be used or distributed--and do not cede that control to the state, or to employers or to anyone else, unless by my choice. Yes, it's my 'property.'
What I choose to do with that property should be my choice. Your choice in dealing with the copyright of your book should be yours, and I respect that. But your choice should not force me to make a similar choice.
Ultimately, this is about freedom and choice. No one is forced to buy the result of my creative work. No one is forced to buy a CD, or a movie, or a piece of software. However, if one chooses to enjoy or use these things, one should do so under the terms offered. If those terms are onerous or distasteful, enough people will not make a purchase decision, and prices will fall, or a different business model (a la Phish) will emerge. No theft is required to force a market to adjust to market realities; however, theft can be used as a way to justify even more onerous and distasteful terms and conditions, as seems to have happened in the music business.
(By the way, I agree with your use of a CD--I'm a believer in Fair Use. I buy CDs and rip them to my computer all the time. But I do buy the CD. And I pay for songs I download. Because I make a living in the creative world, I gladly pay for access to the creative work of others. But if someone buys a magazine where my work appears, and wants to photocopy that article, great!)
I'm going to broaden my argument a bit, and take a risk. Do you agree that plagiarism is wrong? That is, that it's wrong for someone to pass off as their own creative work the creative work of another? For example, would it be wrong for me to lift a section of your book, and publish it under my own name as my own work?
Plagiarism, by its very nature, assumes some form of original ownership in the creative work.
To me, plagiarism and violations of copyright are similar forms of theft, with the former actually stealing the creative work itself, and the latter stealing the rights of the creator to control the distribution of his or her work.
In my narrow, self-interested view, copyrights aren't a barrier to entry, or theft, but rather a barrier to theft. And even then, they're not much of a barrier, since the cost of prosecuting a copyright violation, at least for small creators like me, is far too great.
Let's forget the law for a moment, and big corporations. I would never ask anyone to work for no pay (unless we're volunteering for something), and I would never steal all or even a small portion of their wages. There's a moral imperative here and I'd like to be treated the same way.
Thanks again for the response. I like your blog a lot!
David
David,
One point in your argument gets to the nub of the dispute:
"However, if one chooses to enjoy or use these things, one should do so under the terms offered."
I don't think Kevin will dispute this, and in moral terms, I accept it also. The problem comes in when you create a property right in an idea, as opposed to the object (which, for purposes of this discussion includes bits of data on the inter-tubes). The classic hypo that comes into play is "what happens if the person who contracted with you discards the object in a trash pile, and I pick it up there?"
I have not contracted with anyone in obtaining that object. Nor have I violated anyone's rights (it was abandoned, after all). I have accepted no terms in doing so. You've now left the world of contract law and entered property law. The only way I could be stealing from you is if copyright is a property rule, not a contract rule. This is where the debate is truly focused.
Some of the better defenses of copyright as property law start with asserting the concept of "title" to a physical object, then arguing that an owner might only convey partial title to a buyer, while retaining some of the title to himself. Specifically, in context, the right to copy the information on the object is not transferred but retained by the original owner. As such, the buyer can never give anyone else greater title than what he himself has - since he has never purchased the right to copy from the original owner, he can't give it to a friend.
I still think this paradigm falls apart in the trash heap hypo I set forth above, but it is at least a valid argument, depending on your starting assumptions regarding the nature of property.
David,
I think plagiarism could probably be dealt with as a real offense under libertarian law. But I don't see it as implying any kind of "intellectual property" right. Rather, I see plagiarism as a form of fraud--which even many free market thinkers who reject intellectual property in principle consider an actionable wrong.
I have no objection in principle to contractually-based copyright, included as a term in the original act of purchase. But as quasibill says, that model carries a lot of practical problems, like enforcement against third parties.
And as a basic principle, I believe the public services the corporate economy depends on should be funded by user-fees on a cost basis. The costs of enforcing contractual copyright in a libertarian system of civil courts should be borne by those using them. The problem with business models based on copyright, in such circumstances, is that the profits from copyright probably insufficient to pay the costs of such enforcement, so enforcement wouldn't be worth it to copyright holders if all costs were internalized. So even if contract-based copyright existed in legal principle, I think it would wither away in most cases under a legal regime without a state courts funded from general revenue.
By way of analogy, I think that even in a society with a majority consensus for Lockean land ownership, where absentee ownership was recognized in principle, land in underpopulated areas would default to an occupancy-and-use system just because the enforcement cost of excluding squatters would exceed the likely benefit of the vacant land to the title-holder.
quasibill,
In addition to your trash heap problem with contractual copyright, I wonder if there wouldn't also be much higher costs of enforcement against the original buyer. Right now, under the DMCA, the state plays a major role in limiting access to the physical means of circumventing DRM. If the RIAA bore the full burden of proof and had no extraordinary powers of surveillance, I suspect that much of existing digital copyright would be a dead letter. In fairness, I think David concedes as much in suggesting a reversion to older, pre-DMCA standards of fair use.
Kevin,
Most definitely the cost/benefit balance would shift heavily towards costs - especially in a Rothbardian contract enforcement regime, as opposed to what we have now. Under Rothbard, you not only wouldn't get statutory fines, you wouldn't even get expectation damages - you'd be stuck with reclaiming your property or its equivalent value, plus, apparently at least in some circumstances, some penalty like 2x the value of the object.
I think, although I haven't been able to find it for a while, that Konkin advocated the object plus a value based on time preference for the remedy for theft. In any of these scenarios, the benefit of a contract enforcement action would be miniscule, indeed, in most copyright cases, while, as you note, internalizing the cost in the party seeking to gain would increase the costs greatly.
The debate here, I think, highlights the fact that common sense should be applied to the issue of copyright. Fair use is the best phrase to describe the problem. Information is difficult if not impossible to limit in terms of who owns what. The basic approach should be
" I don't care if you use the stuff I have produced as long as the obvious motive is not a wholesale rip-off. If you make a copy of something you already own or exchange a couple of songs with your buddy who works for the minimum wage then that shouldn't be an issue"
... or something like that.
Brainless greed is just brainless and shouldn't be institutionalized. Anyway, Kevin, I really liked your "hypothetical" response to Adams.
quasibill,
It sounds like you've read Rothbard on libertarian law more recently than I have. Did he reject the existing practice of punitive damages on any principled ground?
Werner,
Thanks! I think greed played a big part in the DMCA and other massive extensions of copyright in the '90s. But I think panic was part of the motive, as well. The technical possibilities of networked distribution, and reproduction at zero marginal cost, threatened to blast the whole corporate model of information/entertainment distribution to smithereens. The only way the old media dinosaurs could continue to exist at all, in the face of peer production and distribution, was by putting the entire digital economy under lockdown. IMO they've failed in this, though, even with the DMCA. We've passed the "singularity" where it's no longer possible to put the genie back in the bottle.
The only thing that just might stop it would be a totalitarian clampdown of another order of magnitude: requiring every IP address to be licensed and tied to a physical address and maybe to biometric data, and making it impossible to participate in the Web anonymously. Interestingly, we've seen suggestions for such things--mostly from liberal goo-goos--in the aftermath of the Sierra cyberbullying case.
Kevin,
Much of the answer, I have found, is in Ethics of Liberty. It's not entirely explicit, but Rothbard appears to believe in some sort of punitive damages for torts (including theft). The examples he gives is restitution plus 100% of value in addition as a "penalty" for intentional wrongdoing.
He doesn't explicitly apply this to contract breaches, but under his system, a contract breach constitutes theft, as the buyer only has conditional title to property transferred to him. Accordingly, Rothbard would apparently favor a 2x damages award for copyright violation (which he explicitly endorses the common law version of in discussing contract law). It is important to note here, though, that while he does advocate a limited form of punitive damages (which I don't think he does a good job of justifying), he rejects in toto the current system of expectation damages. The only restitution he recognizes is the property transferred or the value of such. This, in itself, would reduce the benefit of most contract enforcement actions tremendously.
Rather, I see plagiarism as a form of fraud--which even many free market thinkers who reject intellectual property in principle consider an actionable wrong.
Let's not forget, it's an ationable wrong toward the defrauded customer, and not any "copyright holder" who is third-party to it.
I suppose it might be worth mentioning again that copyright didn't actually originate around protecting the rights over original work in general, it was a mechanism by which the government (or the King in England) could control use of printing, and hence the type of material printed. I think I picked that up from one of Roderick Long's papers.
From a mutualist perspective that's possibly another example of an obvious form of control by the ruling class evolving into something considered to benefit everyone equally (including independent authors/producers) when in practice it mostly benefits the wealthy players who make far greater profits than they should.
I think there was also something that Kevin mentioned about "limiting innovation", although I can't track down a quote on the page. Considering the music industry, there seems to be a tendency for cranking out the same stuff (or supporting the producers of favoured styles), and I don't think it's just my subjective dislike of a lot of modern popular music. Does copyright allow the larger companies to get away with shipping out banal music for longer while stunding evolution of new music?
Nathan
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