Chad Perrin: SOB

24 April 2006

Prohibition, Intellectual Property, and Encryption

Filed under: Cognition,Geek,Liberty — apotheon @ 02:28

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:

  1. 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.
    1. 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.
    2. 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.
  2. 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.
  3. 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.
  4. 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.
Obviously, there have been a great many missteps along the path from initial right to ultimate state of sociopolitical authority structures, including a few that I completely avoided to circumnavigate some of the messier tangents I could pursue. Much of the above reasoning was never explicit in the minds of those who were part of the progression through a given step in the chain from the distant past to the bleeding edge present, and in fact rights were rarely the primary, conscious points of interest in their minds at all. Rights are merely the underlying, ethical principles of action that keep the (often willfully) ignorant general populace from descending entirely into a brutal, world-spanning bloodbath in a pointless war of attrition. If you think it’s “only” self-interest that prevents this, you haven’t thought too much about the relationship of self-interest to a right of self-determination.

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:

  1. 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
  2. the ultimate unenforceability of intellectual property law
Do you see where I’m going with this? We’ve come full-circle: intellectual property is a poorly conceived, legally imposed fabrication of political authority structures created at the behest of those who intend some form of positive moral and quality of life effects (and those who personally benefit, but we’re granting the benefit of the doubt, mostly), which is ultimately unenforceable and based on arbitrary rules. There are differences, however, such as the much longer legal precedent for the enforcement in some form of intellectual property laws, the massive corporate interests supporting it, and the very open public opposition to it — to say nothing of the fact that because intellectual property and its most efficient means of transport are both ephemeral and resistant to enforcement of artificial scarcity, it’s not suited to the same sort of violent organized crime as alcohol prohibition. In some respects, that’s unfortunate: it mostly took the violence of organized crime in combination with the widespread subversion of the law to provoke the repeal of Prohibition.

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:

  1. prohibiting encryption is entirely antithetical in concept to enforcing intellectual property
  2. its widespread adoption is being driven by resistance to intellectual property enforcement
  3. it has only the most ephemeral form and implementation, so it is resistant to prohibition
  4. it is, by definition, self-concealing so that advances in technology ensure greater resistance to prohibition
  5. the justifications for restricting encryption are even flimsier than for basically anything else
  6. the aim of strengthening governmental security is actually damaged by attempts to curtail its widespread use, because it drives encryption innovation to other nations
  7. 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
So, that all said, I think I’ll leave further ponderations on what I’ve said to you. Sorry if this is all sorta anticlimactic. I kinda lost track of where I was going. C’est la vie.

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.

17 Comments

  1. Very interesting, and glad to see you posting. The encryption bans have always given me a “huh?”

    Comment by SterlingCamden — 24 April 2006 @ 01:42

  2. More good news

    Comment by SterlingCamden — 24 April 2006 @ 02:32

  3. I still do not fully agree with you on intellectual property being different from plain old property in regards to protection laws. To me, whether it is a solid object, or waves of sound, or electricity turning a switch on or off to create a series of 0s and 1s, each should be treated the same when protecting its design. When a solid object is created there is some sort of schematic that shows the unique pattern of how the item is put together. The same goes for a piece of music. Musical notes are placed in a unique sequence to make up a new composition. With software, computer code is arranged in a unique way to create a new piece of software. If you protect one of those unique arrangements of items from being able to be copied then I feel you should protect the other two as well. I’m for the notion that whatever the materials, the same rule should apply for each.

    Comment by medullaoblongata — 24 April 2006 @ 08:02

  4. You seem to have missed an important distinction, medullaoblongata: the schematic or design for a physical object also falls under the heading of “intellectual property”, and I wouldn’t protect it at all. Only the physical object itself is tangible property, separate from “intellectual property”.

    Comment by apotheon — 24 April 2006 @ 09:04

  5. Chad, we need to father a child. It will be an odd hybridization of supremely intelligent, deep thinking you and off the wall extremely passionate me. Unfortunately he’d probably want to rule the world as a dictator for life (and would succeed if he ever tried). C’est la vie.

    Comment by Alex — 24 April 2006 @ 09:15

  6. I’m flattered, but I don’t think you’re my type. Besides, your fiancee would probably object.

    Comment by apotheon — 24 April 2006 @ 09:54

  7. Yeah, I think she would. So much for being the proud parents of a world-wide dictator. ;)

    Comment by Alex — 25 April 2006 @ 09:54

  8. More of the nightmare potential

    Comment by SterlingCamden — 26 April 2006 @ 02:39

  9. I don’t know the ins and outs of intellectual property laws so I’m really only talking general terms. My examples previously were intended to illustrate a general point and the focus was not really on the actual schema of a product but the methodology of how each are inherently similar. All three of my examples start off in the exact same way. Someone has an idea. They then lay down the rules of how to make the new idea come into being. Finally, the end product is created. The only part that is different is the form the end product takes.

    I still feel that if someone has spent time, money and/or effort on a product then they should be afforded the same protection regardless of the form it takes. Do you feel there is a difference with the following examples? A person acquires a large amount of thin wire and decide they want to make paper clips. They make their paper clips with the exact specifications of the design created by someone else and start to sell and distribute them. Another person decides to take a song written by someone else and markets and distributes it as if it were their own. Both parties are profiting or gaining something positive by using someone else’s idea.

    Perhaps I’m missing your point or we’re talking apples and oranges here or maybe your problem with the law lies outside this realm.

    Comment by medullaoblongata — 26 April 2006 @ 05:00

  10. Providing “the same protection” as for physical products would completely eliminate intellectual property law. If you come into possession of a chair and, based on that, you create your own chair as a duplicate of it, then sell the duplicate to your neighbor, you are not in violation of any laws related to tangible property. Meanwhile, if you come into possession of a document and, based on that, you create your own document as a duplicate of it, then sell the duplicate to your neighbor, you are now in violation of “intellectual property” laws (specifically copyright and/or patent law, which are in fact separate in law from true property laws).

    I’m not saying anyone has the ethical right to steal a CD that contains some electronic documents from the CD’s owner — I’m saying that the CD’s owner doesn’t have the right to sell copies of the documents on the CD, then sue people for using those copies as they see fit once they’ve purchased them.

    The paperclip example, again, is trading upon the notion of intellectual property. It doesn’t actually compare tangible property with “intellectual property”, because it’s the specification for the paperclip that is being cribbed from someone else, not the paperclips themselves. For tangible property laws to come into it, the person setting up a competing paperclip operation would have to be stealing premade paperclips, the wire raw materials, and/or the physical media on which the paperclip specifications are recorded.

    Comment by apotheon — 26 April 2006 @ 06:31

  11. So as I understand it, you feel that any sort of idea, innovation, literary work, etc. is fair game for anyone to do anything they wish as long as they are not doing so with a physical manifestation they did not properly pay for. It should be ok for me to take a book you’ve written, print it up under my own name, and sell it to others for my own gain?

    If such creations become public domain and the creator has no exclusive rights to their own ideas, others with more resources could easily muscle out the inventor. For example, a person devotes many hours of research and vast amounts of money developing a unique idea. He releases it to the public and it is instantly embraced as the new big thing. He doesn’t have the resources to produce the new item in large quantities, but Super Mega corporation that sits around waiting for the little guys to come up with a brilliant idea, jumps on it and begins mass producing this new innovation. Super Mega corporation basically muscles the guy’s invention from him and profits off of his time and energy, while making it very hard for the inventor to make any gain from his own work.

    It seems like if there’s no sort of protection from people who would circle like vultures waiting for their next free meal, that it could make people reluctant to share in such endeavors.

    In an ideal world, I think it would be great where people would freely share ideas where there are no strings attached to them and are not motivated by profit. Instead the inventions are used to benefit society as a whole. I’m sure things would improve vastly over how they are now. (Take pharmaceuticals, many new drugs are not developed because they would not be profitable for the industry.) But the truth is that there are always those that are greedy, selfish, jerks that somehow want to screw others over and gain some sort of perceived advantage.

    People also enjoy a sense of ownership over things they’ve come up with. I almost get this feeling of the Borg collective where no one is an individual and are just part of the hive.

    Comment by medullaoblongata — 26 April 2006 @ 08:59

  12. It should be ok for me to take a book you’ve written, print it up under my own name, and sell it to others for my own gain?

    No, that would be fraudulent.

    For example, a person devotes many hours of research and vast amounts of money developing a unique idea. He releases it to the public and it is instantly embraced as the new big thing. He doesn’t have the resources to produce the new item in large quantities, but Super Mega corporation that sits around waiting for the little guys to come up with a brilliant idea, jumps on it and begins mass producing this new innovation.

    Three problems here:

    1. The guy has a crappy business model. That’s not my fault.
    2. Super Mega Corporation shouldn’t exist. I’m opposed to governmental endorsement, enabling, and support of corporate entities, too.
    3. Corporations with armies of IP lawyers screw the little guy all the time, anyway. IP law not only allows it, but is as time goes on more and more oriented toward making the problem worse.

    It seems like if there’s no sort of protection from people who would circle like vultures waiting for their next free meal, that it could make people reluctant to share in such endeavors.

    Open source software development, a number of books freely available by the authors’ preference, and thousands of years of cultural history before the industrial revolution seem to disagree with your estimation of motivation.

    freely share ideas . . . not motivated by profit.

    There are a lot of people making a very good living off open source software. Intellectual property law makes a difference by allowing someone to continue to make money off something for a very long time after the initial work is completed, rather than simply being compensated for the work itself.

    Comment by apotheon — 26 April 2006 @ 09:35

  13. I go along with the argument that intellectual “property” has no practical basis. By calling something “rights” we’ve succeeded in getting people to think they are actually rights rather than an arbitrary entitlement bestowed by law.

    My question, though, would be this: what of the original justification for making these sorts of entitlements? You’ve dispensed with ethical arguments that people deserve a monopoly on their ideas, but is it right to grant people such an entitlement because we as a society would like to encourage creation of intellectual capital, and some capital requires significant investment to make? Is it possible to make entitlements with the right balance between encouraging creation of capital and allowing others to use the capital created?

    Comment by sosiouxme — 26 April 2006 @ 10:15

  14. hmm. i meant that first line to be:

    I go along with the argument that intellectual “property” has no ethical basis.

    Comment by sosiouxme — 26 April 2006 @ 10:17

  15. I think you can edit your own comments so that you need not post new comments to correct errors. Let me know if that’s not the case, please.

    I’ll break my answer up into bullet points:

    • Whether or not there’s a potential practical benefit to society in enforcing intellectual property laws of some sort, it doesn’t justify infringing on someone’s right to do what he or she desires with his or her possessions and the contents of his or her mind.
    • Even if there’s a practical benefit to society in enforcing intellectual property law, it’s a trade-off. Laws like this suffer from no clear limits on where their power ends: as a result, they are eminently abusable, which means they’ll be subject to rampant abuse. Period. As a result, there’s a trade-off. To get those benefits, you eliminate other societal benefits. Some people might be encouraged to innovate in certain areas, but they are thereby removed from other areas in which they might innovate and contribute, and other potential innovators are prevented from innovating at all by the inability to legally try new things that might infringe on the copyrights and patents of others.
    • History provides no experiential support for the notion that intellectual property law in any way provides a net benefit to anyone but the individual “owners” of intellectual property who are able to coerce others out of money they wouldn’t otherwise spend. It’s a protection racket that is justified by “the ends justify the means”, except that it has never been demonstrated that these ends are in any way dependent upon intellectual property law.
    • Current events in the software industry seem to distinctly contradict the notion that innovation only happens when one is motivated by the prospect of being able to extort money from people by threatening them with litigation if they dare to build upon one’s innovation. Yes, I’m talking about open source software development. There’s a lot invested in open source software development, and nobody’s getting to keep the software tied up by intellectual property law in an invisible little box: it’s free, as in speech.

    Comment by apotheon — 26 April 2006 @ 10:46

  16. Quote: “No, that would be fraudulent.”

    Is it only fraud if I put my name on it? If I retain your name is it then ok?

    Quote: “Super Mega Corporation shouldn’t exist. I’m opposed to governmental endorsement, enabling, and support of corporate entities, too.”

    You’re using small details to dismiss this argument. Let’s rephrase it to independent millionaire that has nothing to do with the government.

    Quote: “Corporations with armies of IP lawyers screw the little guy all the time, anyway. IP law not only allows it, but is as time goes on more and more oriented toward making the problem worse.”

    With many laws the rich and powerful can screw the little guy. This isn’t something that is exclusive and unique to IP law.

    Quote: “Open source software development, a number of books freely available by the authors’ preference, and thousands of years of cultural history before the industrial revolution seem to disagree with your estimation of motivation.”

    I realize that there are success stories and people who freely give of their creations, but we are in a capitalistic society, aided by the events of the industrial revolution, where buying and selling products and generating money is a big part of what we do. If we were in a communistic society I could see where there would be no need for IP laws. Everyone is on equal ground and shares for the benefit of the whole. There is no need for profit because everyone freely gives and receives. You cannot make a direct correlation to societies of thousands of years to the society we live in today because there are so many variables that are no longer the same.

    Quote: “I think you can edit your own comments so that you need not post new comments to correct errors. Let me know if that’s not the case, please.”

    I don’t see a way to edit my own comments so I don’t believe we have the rights, unless it is hidden away in some strange place.

    Comment by medullaoblongata — 27 April 2006 @ 08:08

  17. Quote: “No, that would be fraudulent.” Is it only fraud if I put my name on it? If I retain your name is it then ok?

    Yup!

    Quote: “Super Mega Corporation shouldn’t exist. I’m opposed to governmental endorsement, enabling, and support of corporate entities, too.” You’re using small details to dismiss this argument. Let’s rephrase it to independent millionaire that has nothing to do with the government.

    I’m not using “small details” to dismiss an argument: I’m pointing out that ethicality of a system of law sometimes cannot assume each individual point in a vacuum when you’re trying to relate it to practical efficacy of the system.

    As for the independent millionaire: As long as he’s not violating individual rights of self-determination (and those rights that validly proceed therefrom), there’s no ethical reason to stop him. The fact that some creator of something or other feels gypped because his business model sucks is his own problem, unfortunately. In any case, my later statement that the little guy gets the shaft in a system recognizing intellectual property law applies here as well.

    Quote: “Corporations with armies of IP lawyers screw the little guy all the time, anyway. IP law not only allows it, but is as time goes on more and more oriented toward making the problem worse.” With many laws the rich and powerful can screw the little guy. This isn’t something that is exclusive and unique to IP law.

    This is true, but it wasn’t my intention to imply that it’s exclusively a problem of IP law. My point is that IP law is useless as a means of trying to prevent the little guy from being screwed, so that argument doesn’t have any real value. In other words, IP law doesn’t solve the problem it purports to solve, in this argument — thus invalidating the argument.

    I realize that there are success stories and people who freely give of their creations, but we are in a capitalistic society, aided by the events of the industrial revolution, where buying and selling products and generating money is a big part of what we do.

    I wasn’t saying you’re out of luck if you want to make money. I was saying that there’s no meat to the argument that without IP law there’s no motivation for innovation. There are, in fact, some very good ways to make money off materials that can be handily duplicated and resold. For instance:

    While I personally find DRM to be pretty odious as it’s currently being employed, there’s nothing ethically wrong with it (unless you’re a member of the FSF) in and of itself. This could provide a “grace period” during which early adopters will be willing to pay for a work to be among the first to have it, before someone figures out how to crack your DRM.

    Open source software can be created as a service rather than a product (and, frankly, I think it should be: it would be a lot healthier for the domestic software industry if developing and improving open source software for local clients rather than closed source proprietary software for international vendor conglomerates were the norm), thus granting income to the developers and everyone involved in the contracting and development process.

    Novels written by a popular author could be sold with his autograph in them, and first printings of first editions of books that gain widespread acclaim are always worth more than later printings and later editions.

    In addition, producing free stuff and giving it away serves admirably as resume filler. If it is widely appreciated and in demand, those who would pay you to do work involving skills similar to those demonstrated in creating the free works will be more likely to pay you. It’s similar to the way that “pirated” copies of Windows serve as advertising: people use Windows (illegally) because it’s free, and thus become comfortable with it, so that when they go to buy a computer from a retail vendor they expect to find Windows on their new Dell. As Microsoft increasingly cracks down on “piracy” of Windows while legally free alternatives like Linux exist, Linux gains marketshare (some retail vendors do offer pre-installed Linux systems) while Windows loses marketshare. The effect is mild thus far, but growing. In other words, there’s real financial value to be gained by giving things away sometimes, particularly when those things are (effectively) infinitely reproducible, as long as you plan for financial benefit beyond merely how many pennies you can squeeze out of the next poor schlub who happens by.

    I don’t see a way to edit my own comments so I don’t believe we have the rights, unless it is hidden away in some strange place.

    No, I think that just means there’s no way for subscribers to edit their own comment posts. I’ll see if there’s something I can do to change that.

    Comment by apotheon — 27 April 2006 @ 02:13

RSS feed for comments on this post.

Sorry, the comment form is closed at this time.

All original content Copyright Chad Perrin: Distributed under the terms of the Open Works License