In the 1920s and early ’30s, the United States suffered under a nationwide ban on drinking alcohol. This was known as the Prohibition Era. After decades of demonstrations and lobbying, temperance groups managed to sway Congress to enact the Eighteenth Amendment to the Constitution of the United States of America. It was ratified in 1919, and it was suddenly illegal to produce and distribute high alcohol content consumables. The idea was to eliminate the perceived negative effects of the availability of alcohol. It was a noble endeavor, proceeding from the moral rectitude and good intentions of those who initiated the entire movement — at least in theory. Let’s give them the benefit of the doubt.
It was an essentially unmitigated disaster. Oh, sure, there were some good effects that arose, perhaps most notably the wealth of good, stylish gangster flicks we’ve gotten to enjoy over the years that wouldn’t ever have existed without Prohibition, and of course the tradition of smoky-voiced slinky-dressed speakeasy torch singers. In terms of actually producing any positive effects within the realms of law and order, public safety, reduction of self-destructive behavior in the general populace, safeguarding bystanders against depredations of vice peddlers, and even improving the image of authoritarian governmental structures, it was a complete disaster. It wasn’t only undeterring in any meaningful sense, but also unenforceable. Partying went on. Drinking proceeded. Vice peddlers made more money than ever, because a black market cannot be policed to protect against anticompetitive, and otherwise unethical, practices.
Something similar has been going on in the War on Some Drugs for quite some time now. I’m sure that in time we’ll be looking back at this new recreational chemical Prohibition in much the same way we currently look back on the original Prohibition Era, with the possible exception that nobody will think much of the music associated with the drug dealers of the present day. Jimi Hendrix will likely always be more highly regarded as a musician than Snoop Dogg (once we’ve gotten a little cultural distance from the rap fad as we have from the surreality of ’60s rock and roll), after all. There’s another distinct comparison between the Prohibition Era and today that is slightly less obvious to those who aren’t both computer geeks and armchair lawyers, however: intellectual property law.
Intellectual property law really arises out of a conflation of the concept of tangible property law and the concept of attribution of linguistically defined creative works. Even tangible property law is, itself, an abstraction from and extension of something more “real”: physical possession.
In essence, what it all boils down to is a misconstrued relationship between an ethical restriction against unprovoked violence and an ethical restriction against dishonest dealings, both of which are in turn derived from a right of self-determination. Not only is this the ultimate philosophical justification for the things that, by interaction and lazy analysis, lead to the legal construct known as “intellectual property”, but I think it is also probably the historical progenitor of the line of derived ethical (mis)calculations that leads eventually to enshrinement in law of the proprietization of the intellect. Let’s see if we can put this in simple, step-by-step terms:
- Self-determination: We have the right to determine our own disposition and state, which translates to an ethical restriction against interfering with the rights of others to determine their own dispositions and states. As such, the freedom of the individual is limited by a restriction against interfering with similar freedoms of others. A corollary right is that of self-defense, whereby one who acts to interfere with the freedom of others is subject to the actions of others without such restraints to the extent necessary to eliminate this threat to the right of self-determination.
- Violence: To enact violence against another, unprovoked, is to interfere with the exercise of the right of self-determination. To then counter-interfere in the freedoms of the attacker in answer to unprovoked violence (to ignore other forms of interference) for purposes of preventing (some of) the ill effects of that violence is self defense, even if the counteraction is violent in nature.
- Fraud: To deal dishonestly with another in an attempt to deceive someone into engaging in actions that are counter to that person’s actual desires in light of the truth is, likewise, to interfere with the exercise of the right of self-determination. The same preventative and defensive license is appropriate to this circumstance as to that of unprovoked violence.
- Ethical agency: One may engage others on one’s behalf in exercise and defense of one’s rights, so long as those agents of one’s exercise and defense of rights do not have their rights violated in the process. This is the basis of contractual agreement, obligation, and (ultimately) a system of law.
- Derived rights: By convention, our systems of law have, over time, accreted pseudo-rights derived from the initial rights that are, ultimately, merely case-specific facets of the right of self-determination. These can in theory be derived from those initial rights through carefully applied deductive logic. In practice, these derived rights are broken, and later-generation derived rights that are in turn derived from the first set of pseudo-rights are in turn even more broken by design. In the first generation of broken derived rights are such concepts as proprietary right and right of attribution — we might call these “conventional rights”. The conventional right of property is abstracted primarily from a right of freedom from unprovoked violence, as applied to physical possession: when one possesses some object, that object cannot be appropriated without interfering with the possessor’s right to self-determination. Similarly, the conventional right of attribution is abstracted primarily from a right of freedom from dishonest dealings, as applied to communication of the source of some work of creation. Interestingly, the conventional right of attribution is considered a right of the creator when it is, in fact, ethically based on the notion that the receiver of information pertaining to the creation has a right to be free from deceptive dealings.
- Intellectual property: By attaching the conventional right of (honest) attribution to the creator, a sense of “ownership” of attribution is conveyed, which overlaps conceptually with the similar concept of “ownership” conveyed by the conventional right of property. While extension of possessive rights into property is based on explicit and implicit contractual agreements regarding the behavior of one’s agents, such that “property” can leave one’s immediate possession with reasonable expectation that it will be returned in accordance with an understanding that such is a condition of relinquishment, intellectual property is a step removed from that. Similarly, extension of a right to freedom from deception into attribution is based on the necessity of honest dealings in safeguarding against violations of rights such that parties receiving information will not be tricked into acts antithetical to their wishes and rights, and intellectual property is similarly even a step removed from attribution. The apparent similarity of the attributive label and proprietary label conflates the two concepts, and thus intellectual property is born. Later retrojustifications are developed, including the very Marxist-toned “right to a return on investment” (wherein effort “deserves” compensation, just as the worker “owns” the product of his labor), but they’re really just square justifications being forced into round holes in the legal model.
The ethical refutation of intellectual property as a concept, as already shown in what is really a summary of the whole necessary exercise of refutation despite its lengthy babbling on, is complex and highly abstract in places. This unfortunately means that a lot of people just can’t (or can’t be bothered to) grasp it sufficiently to let it change their minds. There are a number of other approaches to take to this, however, with the two primary choices seeming to be the socioeconomic approach and the engineering approach. They’re both actually very similar under the hood, but we’ll leave that alone for the moment, especially since I’m only going to give the most cursory attention to the socioeconomic at this time.
Socioeconomic refutations are pretty simple to explain, typically, but it’s difficult to get those inclined to disagree to actually accept them. All it really takes to refute the socioeconomic justifications for intellectual property is to describe plausible alternative socioeconomic models that serve roughly the same ends as the justifications, and/or to explain how the socioeconomic models used as justifications fail in achieving their aims effectively (and often end up actively hindering those stated aims in practice). Unfortunately, all of this is ultimately dependent upon an ethical refutation to supplement the very engineering-like aspects of it, so dealing with socioeconomic refutations in a vacuum has limited use. It can only really be used to produce an uneasy truce if both “sides” are about equally equipped for debate, equally honest, and equally dedicated.
A great example, and only one of many, of an engineering refutation exists in the form of an essay called What Colour are your Bits?, the link to which I culled from a friend’s blog post (which I also recommend reading) called The Colour of Bits. What these engineering refutations mostly boil down to is a simple demonstration of two things:
- the complete lack of meaning to the concept of “ownership” of something that has no form, no substance, and no point of differentiation that makes it possible to draw a line between “owned” and “free” without liberal application of arbitrary, and often self-contradictory, decisions
- the ultimate unenforceability of intellectual property law
There’s something else that bears a resemblance to Prohibition and is related to intellectual property, but it is related in a way that might surprise you. I’m referring to US laws regarding encryption.
The US government is essentially doing everything in its power to eliminate the ability of the general populace to employ effective encryption. I’m pretty much rambled-out at this point, so I’ll keep the big finale brief:
- prohibiting encryption is entirely antithetical in concept to enforcing intellectual property
- its widespread adoption is being driven by resistance to intellectual property enforcement
- it has only the most ephemeral form and implementation, so it is resistant to prohibition
- it is, by definition, self-concealing so that advances in technology ensure greater resistance to prohibition
- the justifications for restricting encryption are even flimsier than for basically anything else
- the aim of strengthening governmental security is actually damaged by attempts to curtail its widespread use, because it drives encryption innovation to other nations
- creating a black market for encryption by restricting it is likely to be compounded by its becoming a tool for facilitating other black markets even further than it currently does: it’s the old “outlaw it, and only outlaws will have it” deal
The moral of the story: don’t prohibit alcohol for consumption, other recreational drugs, file trading, or encryption. Really. Oh, yeah, and adopt libertarian ethics of nonaggression. Run along now, and be good.