Copyright Shill’s Defense of the Status Quo

by Stephan Kinsella on November 20, 2012

In my post Heroic and Radical Republican Study Committee Copyright Reform Proposal Retracted under Pressure from MPAA and RIAA, I noted that a recent radical proposal for copyright reform released by the Republican Study Committee was almost instantly pulled under pressure from Big Content. In an updated, I noted that Cato’s Timothy Lee, who poses as an IP-reform maverick but, as noted here (also here), is not against IP on principle, wrote on Facebook: that the report “was retracted because it was intellectually indefensible” (which I guess is something different than “indefensible”), citing IP shill Scott Cleland’s post The Copyright Education of Mr. Khanna — Part 2 Defending First Principles Series. Let’s look a bit more closely at Mr. Cleland’s alleged demonstration that the RSC’s copyright report was “intellectually indefensible”.

Mr. Derek Khanna, a new Republican Study Committee (RSC) staffer, distributed apolicy brief on copyright “myths” last Friday that the Committee very quickly disavowed and pulled down because it had not been vetted to ensure that it fairly represented the Republican Study Committee’s views. Don’t expect this policy brief to ever get the official support of RSC because Mr. Khanna has obviously and grossly mischaracterized Constitutional first principles, property rights, and free markets beyond recognition.

There are at least five fundamental flaws in Mr. Khanna’s characterizations.

At least! Well, you would think five would be enough. Let’s see…

1. Congresses and Supreme Courts have not totally misread the Constitution for over 200 years.

Mr. Khanna’s effective assertion that two centuries of Congressional and Supreme Court interpretation of the U.S. Constitution’s treatment of property rights, and copyrights in particular, are really “myths” that misinterpret what he posits the Founding Fathers really meant to do in promoting “progress of science and the useful arts,” puts his opinion squarely at odds with America’s two centuries of experience with Constitutional rule of law.

How can an opinion be “at odds” with positive law rulings of state employees? These are the same kinds of observations made by legal positivists and statists who say that the Civil War “settled” the issue of secession. But let’s go on.

While there is a perfectly legitimate copyright debate that can be had on the appropriate definition of how long “limited times” for exclusive right to “writings and discoveries” should be,

Well how long, exactly, should they be? Zero? 14 years? 150 years? Forever?

Mr. Khanna’s “myths” brief is fundamentally not about that, but about a frontal assault on two centuries of Congressional and Supreme Court interpretation of Article I, Section 8, Clause 8.

Why…. why… how dare he disagree with two centuries of state interpretation of the document that grants them power to regulate the economy!  Someone grab the fainting couch! Anyway, what is the argument? Cleland simply has a bare assertion here: that Khanna has assaulted two centuries of official interpration of the copyright clause. Well so what? Why does that make it wrong? And even if the official interpretation of the copyright clause is correct, that doesn’t mean it’s morally justified.

2. Mr. Khanna’s copyright views are not conservative.

Mr. Khanna’s hostile views towards copyright are at war with those of the Founding Fathers because property is strongly protected in the Constitution and the Bill of Rights.

So many confusions in so few words. First, there is the implication that being for property rights has something to do with being “conservative.” Not so. Second, there is the identification of the Founding Fathers with all that is good and right and property; this is just legal positivism mixed with an appeal to authority. The Constitution does not strongly protect property; it enables the central state to ride roughshod over property rights and in fact empowers the Congress to enact legal monopolies (patent and copyright) that in fact do derogate from and violate property rights. The Founding Fathers were not some genius statesment who gifted us with the sacred right of limited government and private property; rather, they were racist, power-seeking white males of privilege who knew what words they had to say to the people to delude them into thinking the new state being foisted on them was legitimate. The Constitution is not some genius system of checks and balances “bestowed” on us; it is  the plan of evil geniuses who succeeded in seizing and centralizing power by using the right words and incantations to speak to enable them to get away with it. It is as if they knew some elaborate scheme to figure out how to rob a bank, and everyone praises them for the cleverness of the scheme.

James Madison understood protection of private property rights was a first principle in stating in Federalist #10 that the protection of property rights “is the first object of Government.” That comports with John Locke, whose social contract philosophy undergirds the American Constitution; he said: “The reason why men enter into society is the preservation of their property.”

Mr. Khanna’s copyright views actually closely parrot the collectivist views of the famous Professor Larry Lessig who founded Free Culture and Creative Commons, championedFree Software and CopyLeft, and called for convening a new Constitutional Convention because “Democracy in America is stalled” by the “corruption” of money in politics.

It is also important to note that Marx and Engels said their theory could be summed up in one sentence: “Abolition of property.”

Calling state-granted monopoly privileges “property” does not make it so.1 In fact, such monopoly privileges undercut and invade private property rights.2 It is not collectivist to oppose state monopoly privileges. In fact a strong belief in private property rights is the primary reason to oppose such anti-competitive monopoly grants.

In any case, notice that, as with point 1, there is simply no argument whatsoever here. Cleland may be right that Khanna’s views are not “conservative”. so what? When has conservativism ever been for honest interpretation of the Constitution? (Hint: how many “conservatives” will now disavow Lincoln’s war against southern states’ constitutional right to secede?) When has conservatism ever been for justice and individual rights and a consistent, strong defense of Lockean-style property rights? Answer: never. The reason is: only libertarians are for this, and conservatives are not libertarians. They are just statists of one stripe.3

3. Copyright is property not monopoly.

Mr. Khanna’s gross mischaracterization of the “exclusive rights” of copyright as a monopoly is classic Lessig-ian buzzword blackmail to demonize ownership of private property by mischaracterizing property exclusive rights with a word he knows people don’t like — monopoly.

Well there is a reason people don’t like monopoly: but the only true monopoply is that of the state, which conservatives do not oppose. Instead, they favor, like other types of socialists, the monopoly state enacting anti-monopoly laws that persecute private businesses who cannot and do not achieve real monopolies, all the while the same state hands out monopoly grants of privilege called patent and copyright and disguised as intellectual “property” rights.4 But there is no question that patent and copyright are monopolies, as is admitted (gleefully) by even their ardent defenders.5

A copyright is not a business or market that can be monopolized, copyright is a Constitutional property right for a product that can be bought and sold, or protected from use by others.

Is this supposed to be an argument? It is just some bizarre legal positivistic appeal to authority.

To show how silly this mischaracterization is, do we believe we have a monopoly over use of our car or home? No it is our property and because it is our property we have the right to decide who can use our car or enter our house. The only purpose in mischaracterizing property as a monopoly is to promote hostility to property and individual ownership of property separate from the state.

The purpose in mischaracterizing state monopoly privilege grants as “property” is to bamboozle people.6 Not the other way around. The property rights in a scarce resource like a car or house are grounded in a Lockean theory of original appropriation and contractual title transfer. Copyright is just a negative servitude granted by the state that takes property from previous owners and transfers it to state-favored recipients.7

4. Mr. Khanna is flat wrong asserting “Copyright violates every tenet of laissez faire capitalism.”

No genuine conservative or free market proponent would imagine positing that property, or a whole category of Constitutionally-protected property like copyrights, patents or one’s home property, violate the entire concept of capitalism. At its most basic level, capitalism is about capital which is private property. Capitalism is property and property is capitalism. Capitalism simply cannot exist without common law enforcement of property rights and contracts.

Well, patent and copyright do not emerge from either common law of property or contract; it requires legislation. Khanna’s obvious point is that IP is anti-competitive and anti-property, and thus anti-capitalism—and this is recognized by those who support patent and copyright. For example, they say:

Governments adopt intellectual property laws in the belief that a privileged, monopolistic domain operating on the margins of the free-market economy promotes long-term cultural and technological progress better than a regime of unbridled competition.8

Is this “conservative”? Yes, it is; and it has nothing to do with competition, private property rights, and free markets. Or, here is another supposed defender of capitalism:

To paraphrase the late economist Joan Robinson, patents and copyrights slow down the diffusion of new ideas for a reason: to ensure there will be more new ideas to diffuse …9

Cleland is (unfortunately) free to favor and help foster this fascist protectionism on the remnant of the free market we have remaining, but he is not free to have his cake and eat it too: he cannot coherently claim to be for property rights and free markets while supporting anti-competitive, protectionist monopoly privilege grants by the criminal state.

Even capitalism’s biggest opponents, Marx and Engels, knew the opposite of capitalism was “Abolition of property.”

More question-begging. It is IP proponents who are socialistic, since the legislated state grants of monopoly that they favor undermine private property rights just as socialist expropriations, regulations, and taxes do.

5. Copyright is law not regulation.

Once again, Mr. Khanna uses deceptive language to mischaracterize and de-legitmize copyright in buzzword blackmailing it as government regulation and subsidies. Property is a Constitutional right.

Yeah, well slavery was constitutional for a while, and today, income tax and tariffs and war and the draft and the drug war and welfare and government schooling and social security and Obamacare and regulation of the right to bear arms are also “constitutional.” So who gives a damn whether a given law is “constitutional” or not? It means nothing.

Copyright is enforced via the courts as law enforcement not regulation. It’s absurd for Mr. Khanna to characterize Government law enforcement to protect all citizens’ life, liberty and property as a “subsidy” rather than a purpose and core function of the Government.

In sum, Mr. Khanna is promoting Lessigian anti-property thinking (that more American innovation and progress will emanate from the utopian altruism of a property-less system, where taking what others produce without permission is called “sharing),” as superior to America’s Constitutional political and economic system of property and economic incentives.

What do Mr. Khanna and Professor Lessig think the Founding Fathers meant when they said in the preamble of the Constitution “… secure the blessings of Liberty to ourselves and to our Posterity…”?

Our Founding Fathers understood two centuries ago, as most Americans still understand today, that “free,” meaning no property, will not “promote the progress of Science and the useful Arts,” (innovation) and that “free,” as in no-cost, is not best for the people or for America because it is not economically sustainable for today or for “our posterity.”

The inane mutterings of this inept copyright shill show vividly how intellectually bankrupt is the case for IP. One can only hope that this presages a collapse of the modern IP-protectionist edifice.

  1. See Intellectual Properganda. []
  2. See Intellectual Property Rights as Negative Servitudes. []
  3. See Hoppe, “The Socialism of Conservatism,” in A Theory of Socialism and Capitalism. []
  4. See Abolish antitrust law and the real monopoly: the stateThe Schizo Feds: Patent Monopolies and the FTCEU newsflash: patents are anticompetitive!Pro-IP Libertarians Upset about FTC Poaching Patent TurfState Antitrust (anti-monopoly) law versus state IP (pro-monopoly) law; see also When Antitrust and Patents Collide (Rambus v. FTC)Antitrust vs. Trademark LawPrice Controls, Antitrust, and PatentsIP vs. AntitrustThe Schizophrenic StateIntel v. AMD: More patent and antitrust waste. []
  5. See Are Patents ‘Monopolies’? []
  6. See Intellectual Properganda. []
  7. See Intellectual Property Rights as Negative Servitudes. []
  8. See Intellectual Property Advocates Hate Competition. []
  9. See Shughart’s Defense of IP. []
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Crosbie Fitch November 21, 2012 at 3:13 pm

Don’t forget that Madison said that copyright had been solemnly adjudged to be a right of common law, and that patent (being as much a monopoly as copyright) was thus also a right of common law.

Anyway, the cartel maybe able to bullshit the feeble minded few in Congress, but that’s not what this is about. This is about the risk that the Republicans might realise that liberty is one muthafuckin hot potato (as it always has been) and gets more votes than money can buy.

The risk from the libertarian perspective is that the republicans simply use the potential popularity of reform/repeal as a rod to encourage sponsorship from the cartel (or punish the lack thereof).

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