From the Mises blog. Archived comments below.
Thick and Thin Libertarians on IP and Open Source
10/23/2009 Stephan Kinsella
In Thin Liberalism and the Folly of Burning Bridges, Timothy Lee makes (at least implicitly) several interrelated claims. First, that libertarians tend to oppose net neutrality. Second, that “free software intellectuals like Richard Stallman and Eben Moglen” are anti-IP. Third, that this is compatible with libertarianism. Fourth, that Moglen and Stallman, despite some unfortunate rhetorical excesses, hold views that are not really inimical to the free market. Fifth, that some libertarians, who (properly?) oppose net neutrality, wrongly accuse the anti-IP/free software types as being unlibertarian. Finally, that the reason these libertarians get it wrong is that they have succumbed to thinness.
It seems to me that most of these claims are at least partly incorrect, or confused. Let’s take them one at a time.
- Libertarians tend to oppose net neutrality. (I’m inferring this position from Lee’s post.) Libertarians seem to me to be confused about this area, but the principled ones I am familiar with of course oppose net neutrality. I oppose it. On the other hand, the various forms of state support received by the telecom and other Internet infrastructure corporations should of course be abolished, which might alleviate most of the concerns of (left?) libertarians sympathetic to the aims of the net neutrality crowd. But libertarian position is clearly to oppose any state interference with the market to impose “net neutrality.” Service providers should be able to charge whatever they want, in whatever manner or tiers they wish, if the market supports it; at the same time, any state favors, monopolies, protectionist regulations, etc., should of course also be abolished.
- Free software intellectuals like Richard Stallman and Eben Moglen are anti-IP. (I’m inferring this position from Lee’s post.) Not really. The problem, from the libertarian perspective is not that Moglen and Stallman are anti-IP; it’s that they are not anti-IP enough. If I am not mistaken, Moglen, for example, is not completely opposed to copyright and patent. (See my Eben Moglen and Leftist Opposition to Intellectual Property.)
- The ideas of open source/free software/anti-IP are compatible with libertarianism. Yes, this is true, as I have argued extensively. But this is a strange argument coming from Lee, who himself is not opposed to IP in any principled way (and neither are the leftist free software types, as noted above). For example, as I noted in $30 Billion Taxfunded Innovation Contracts: The “Progressive-Libertarian” Solution [see also Libertarian Favors $80 Billion Annual Tax-Funded “Medical Innovation Prize Fund”], Lee has written: “I can’t agree with Baker that all copyright and patent monopolies are illegitimate. Copyright and patent protections have existed since the beginning of the republic, and if properly calibrated they can (as the founders put it) promote the progress of science and the useful arts. Like any government intervention in the economy, they need to be carefully constrained. But if they are so limited, they can be a positive force in the American economy.” Unlike the views espoused by confused, quasi-economically illiterate leftists and utilitarian, minarchist libertarians, the proper, principled, libertarian position is that patent and copyright are completely and utterly unlibertarian and unjustified.
- Moglen and Stallman, despite some unfortunate rhetorical excesses, hold views that are not really inimical to the free market. I tend to agree with Lee that various comments about “a bottom-up, participatory structure to society and culture, rather than a top-down, closed, proprietary structure” and “the democratizing power of digital technology and the Internet,” etc., are not anti-libertarian. However, as noted in Eben Moglen and Leftist Opposition to Intellectual Property, Moglen holds clearly unlibertarian views, such as his view that free bandwidth is everyone’s “birthright” (as socialist Finland believes, too-it recently enacted legislation making broadband access a legal right); and his opposition to regulating the EM spectrum as a property right (and his confused view that it already is, despite the state’s nationalization of the EM spectrum).
- Some libertarians, who (properly?) oppose net neutrality, wrongly accuse the anti-IP/free software types as being unlibertarian. This appears to be correct. Some libertarians are pro-IP and thus, mistakenly believing the free software socialists to be opposed to IP, confusingly criticize them on these grounds. In this respect, the confusion on both sides is similar to confusion about IP held by leftists and traditional libertarians: both the left and traditional pro-IP libertarians accept the false assumption that intellectual property is a legitimate type of property right. Libertarians who accept this premise thus favor IP, because they are pro-property; and leftists oppose IP because they are hostile to private property rights and mistakenly believe IP is a type of private property right.
- The reason these libertarians get it wrong is that they have succumbed to thinness. So here we have Lee, who is pro-IP, criticizing libertarians for being pro-IP. Leaving this bizarre critique aside, is Lee right that “thinness” is what makes some libertarians too pro-IP? Lee maintains that “A libertarian whose conception of liberty is confined to limited government is going to be left rudderless when confronted with a pro-liberty movement whose concerns are orthogonal to the size of government.” I think this is just confused. Thickness is actually problematic since it just muddies the waters, conflating issues pertaining to the permissibility of interpersonal violence with other interpersonal norms and institutions. The thickness theorizers add nothing of substance to our understanding of libertarian principle; instead, they pointlessly link the libertarian opposition to aggression to non-rigorous, malleable leftist gremlins like “hierarchy” and “bossism” and “pushing people around.” I am, in some sense, a “thin” libertarian yet oppose IP root and branch, on principled, pro-property, pro-rights, pro-individualist, non-leftist grounds. Thinness is not the cause of confusion about IP. Rather, it is the lack of principle. It is the lack of principle and the adoption of flawed, bankrupt utilitarian ideas which leads libertarians to try to be “moderate”, to support some IP, but not too much; and to be minarchist–that is, statist–rather than anarchist.
Update:
Discussing Stallman admits GPL flawed, proprietary licensing needed to pay for MySQL development, I mentioned to some friends this post and others criticizing lefists who have an unprincipled, nonlibertarian, non-abolitionist, economically illiterate approach to IP. I noted that GPL requires copyright to work, and mentioned these posts: Copyright is very sticky!, Eben Moglen and Leftist Opposition to Intellectual Property, and Leftist Attacks on the Google Book Settlement.
A friend, David Christy, said the following about Stallman (edited; posted with permission):
I met RMS once about 10 years ago. People were dogging him about the GPL and profit, and his responses were like what one would expect to see on Mises.org today about IP. It was pure enlightenment until I suggested that without copyright the market would probably favor people who share source openly to promote their code and create a similar effect to the GPL. The idea that people would share their source without the GPL forcing them to seemed to shock him. He’s almost like a principled libertarian about IP in every other way, but on every non IP issue is a hard core socialist. He is a genius in a lot of ways, but when it comes to freedom and liberty outside of IP, [he has flawed ideas]. He literally gave me these gazing stares, even an hour later like “how could you hurt me so bad,” and run away like a little boy or like I was a secret agent traitor. …
I remember at the time I didn’t know much about his other views. I looked at him like a hero because the GPL broke the copyright cartel and freed software from statist intervention bringing forth the bounties of free market cooperation. I saw the free software movement as a pure freedom and free market movement. When I realized that he saw me like a greedy capitalist traitor, I gotta say, it rather hurt and I took it personally hard.
Geoff, Yes, I do know you disagree with me. Not sure why you are telling me what I already know, but I appreciate the reminder.
In any event, the point is–”thinness” is not the reason some libertarians are pro-IP. Usually it’s because they are utilitarian, or accept Rand’s confused ideas about creation being an independent source of rights. Rand herself was hardly “thin.” So you don’t disagree with me here, do you, that Lee’s identification of thinness as a cause of fallacious views on IP is wrong, do you?
And second, do you make your comments above qua libertarian, or as a “thick” libertarian?
Stephen,
Thanks for the thoughtful post. However, I’m confused about why you focus so much on whether I’m for or against “IP” (a phrase I don’t care for, but I’ll follow your terminology). In fact, I never mention “IP” in my post. And there’s no necessary connection between one’s views on “IP” and one’s views on free software. So I’m puzzled at your general approach of attributing “implicit” views (i.e. views I didn’t actually express) to me and then criticizing me for them!
Tim, thanks. You’re right–I was reading a bit more of IP-ness into your own remarks than are there explicitly. Though to my mind it’s the only way to make all this coherent: what other “radical agenda” of the free software types can possibly be unlibertarian? I assumed it’s their (ostensibly) anti-IP views; e.g., in the Epstein piece you linked to as an example of how “thin” libertarians go out of their way “to antagonize the free software movement,” he is quoted as saying, “Intellectual property often creates strange bedfellows on the left and the right sides of the political spectrum.”
So, … this is obviously the common theme. So the question is–why didn’t you mention IP? Is it the dog that didn’t bark? 
Right, I think it’s true that many libertarian critics of free software are “strong IP” advocates who see free software as an attack on copyright protections. But I think you’re right that this is a misinterpretation of Stallman’s views: he uses copyright as a way to preempt downstream users of his software from creating proprietary software, something he wouldn’t be able to do in a copyright-free world.
Anyway, I didn’t discuss “IP” because that’s not what my post is about. I like free software not as a proxy for my views on “IP,” but because I’m a computer programmer and so I know from first-hand experience that free software tends to work well. There are all sorts of things I could say about the implications for copyright and patent law, but that just wasn’t the subject of this particular post.
Tim: “I didn’t discuss “IP” because that’s not what my post is about. I like free software not as a proxy for my views on “IP,” but because I’m a computer programmer and so I know from first-hand experience that free software tends to work well. There are all sorts of things I could say about the implications for copyright and patent law, but that just wasn’t the subject of this particular post.”
Fine–but I don’t know “free software,” divorced of policy issues like IP, has to do with libertarianism then. “What software works well” is not in the domain of libertarian normative theory.
Thanks for the clarification. I run into this all the time. The way I see it, most people are confused by the ends vs. means arguments thrown about.
The statement “Everyone should have access to affordable Healthcare” is an example of common ends. These ends, as stated, are reasonable and difficult to deny as worthy goals. The trouble arises with the means that are employed to achieve the goal.
Same is true of “Net Neutrality”. The goal, is to have a free and open internet. It’s the means, say via state regulations, mandates, etc. that create the opposite resluts from the stated goals. Over and over throughout history, lofty goals have been completely missed by regulatory force.
Libertarians place no faith in government. Instead, we place our faith in the common person, and the decisions they make for themselves. Free markets only work if people trust themselves and each other, rather than distrusting everyone except the regulators.
Most people cannot make the connection between trust in themselves, trust in the public-at-large, and distrust of regulatory bodies as the cornerstones of freedom and free society.
Communism, Fascism, Socialism all place the distrust in the individual and the people-at-large, and the concentrated trust of “society” in a handful of “regulators”.
This is an error in judgement at the very least. All of us as individuals are capable of regulating ourselves. Together, under the same circumstances, we tend to the same solutions. But put all the decision making capacity of an entire society into the brains of a few anointed ones is folly. The only exception to this is in time of war or disaster, or the voluntary raising of a leader in commerce. It is only important for the body to have a head when there is need for quick decisions. This is why we have an executive branch of government. This is why we have hiearchy in business.
But we don’t need a “head” for every social problem!
Don’t quite understand what you mean by thin vs thick.
But anyway,
TRacy
The main take home for me from the original article and then the blog response was that there is still a lot of work to do to explain to some libertarians and the rest of the nation that IP is not property. Mr. Lakely, the author who wrote the original article, even goes as far as to say that IP is so important, that the framers “positively” protected it in the Constitution. Of course, Article 1, Section 8 only gives the Congress power to grant copyrights and patents, if it chooses. This is just a prime example of how many, well intended people, continue to twist history, logic, et al, to fit their misconceived ideas.
Also, I think a lot of ground can be gained by pointing out that the only reason that telecoms have the opportunity to have a monopoly and do “bad” things is because the government, especially local governments, have given the telecoms their position through franchising, regulation, miscellaneous laws, and the federal control of the electromagnetic spectrum. So, if government caused the problem, instead of giving government more power, auspiciously to fix its own shortcomings, why not deregulated and free the market up? Why is more government going to fix problems that are caused by government control and direction?
Lastly, the fear that the telecoms will do various “bad” things for the Internet is possibly a bigger farce than the run up to the Iraq war. No telecom has seriously proposed doing something that would break the supposed principals of net neutrality. Second, if they did, they would be put out of business from the backlash. Comcast already found this out the hard way when they tried to shape bit-torrent traffic, which actually might have been justified. Lastly, the telecoms could not do most of what people are afraid they might, from a purely technical point of view. Between proxy servers, encryption, and other technologies, no one can control the Internet, except that is governments, who can theoretical shutdown all networks with police actions and fiat. Look at China and Iran, those governments try to cut of their citizens off and can not, except for shutting down practically all traffic leaving and entering the country. But, ask the average, technically savvy Chinese or Iranian citizen, and they will tell you they can do whatever they want on the Internet, no matter what the government tries.
“‘What software works well’ is not in the domain of libertarian normative theory.”
Which was precisely my point: the free software movement is not hostile to libertarian values, and so it’s foolish for libertarians to go out of their way to attack it. I think this is a valid point irrespective of one’s views on “IP.”
Tim Lee: “the free software movement is not hostile to libertarian values, and so it’s foolish for libertarians to go out of their way to attack it. I think this is a valid point irrespective of one’s views on “IP.””
Could be, but aside from IP-based arguments it’s hard to think of any valid reason for a libertarian to attack free software advocates. Anyway, I see no reason to think that it’s “thinness” that leads them astray.
George, Article 1, Section 8 DOESN’T even give Congress power to GRANT copyrights and patents.
It gives congress power to SECURE the exclusive right that writers and inventors are RECOGNISED to have by nature. Writers and inventors are naturally able to prevent others accessing those works exclusive to them, and consequently have a natural exclusive right to those works that should be secured by a suitably empowered government.
There was a suggestion that monopolies in literary and technological works should be added to the bill of rights, but this thankfully didn’t go ahead. Even so, copyright and patent were legislated anyway. No-one at the time had sufficient clout to point out that not only were such monopolies not sanctioned by the Constitution nor any amendment, but that the Constitution (or bill of rights) CANNOT GRANT PRIVILEGES! (or legal rights as IP lawyers predictably prefer them termed today)
See Rights of Man:
Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:
It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few . . . They . . . consequently are instruments of injustice.
The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.
And for the record, I am a libertarian proponent of intellectual property, but that’s natural IP, without unnatural monopoly.
I should add that just as the Constitution cannot grant privileges, nor can it empower congress to grant them.
Thus the monopolies of copyright and patent are unconstitutional privileges and should be abolished.
Just to be clear about it.
I should add that just as the Constitution cannot grant privileges, nor can it empower congress to grant them.
Thus the monopolies of copyright and patent are unconstitutional privileges and should be abolished.
Just to be clear about it.
Let this serve as a DMCA takedown notice against the unauthorised duplicate copy that was made of my preceding comment.
(feel free to delete this comment along with the spurious duplicate)
If I understand it correctly, Stallman’s position, although it is couched in the terminology of “free speech” (as opposed to “free beer”), it’s actually opposed to free speech. His GNU Public License says that if you modify his GPLed code, and share the resulting binaries, you *must* share your code as well (I’m not sure about the LGPL). Where then is the right to *NOT* speak? He claims he owns the rights to control duplication of his code, and will only let you distribute your modifications of his code if you do so according to his terms.
Thinking that you have the right to control the “speech” of others doesn’t seem particularly libertarian to me.
Copyright is necessary to enforce releasing the source code.
Without copyright, though, it is hard to imagine any serious developers to conspire to keep their source code secret. That is a development model that, without copyright, simply does not work.
I prefer to see the GPL as a copyright-neutralizing license: it uses copyright to create the conditions that would be there if copyright didn’t exist.
The big difference between the open source people and Kinsella is that they are opposed to trade secrets. This is a big deal, because even if IP is abolished, MS can still keep the code secret as it sells the binaries.
I just think these are two very different movements. And of course, I like Kinsella’s better!
Kid wrote:
“Without copyright, though, it is hard to imagine any serious developers to conspire to keep their source code secret.”
It’s not hard to imagine at all. Let’s say that some company has a binary copy of an un-copyrighted but non-open-source application. They would find it so much more useful, if only it had a few extra features. They contact you, the developer, and you tell them that you would be happy to add those features for a small fee. As long as the fee is not so large that it would be more cost-effective for them to reverse engineer the binary, it could be reasonable for them to go along with your deal.
Kid wrote:
“I prefer to see the GPL as a copyright-neutralizing license: it uses copyright to create the conditions that would be there if copyright didn’t exist.”
No, it doesn’t. A world without copyright would *allow* free “speech” (in the form of sharing binaries). The GPL not only allows this form of speech, but *requires* that you share source code, which in a world without copyright you may not wish to do.
This is somewhat unrelated to the above, but I wonder: has the GPL ever been tested in a court of law in the USA? If so, what was the result?
Russ, in a world without copyright you can’t sell copies, so no-one is going to be interested in keeping the source code secret, especially given it is the source code they have to start selling.
Even today, a software engineer employed by Microsoft who told them they should be happy paying him for his binaries as they were just as effective as his source code (which he’d prefer to keep to himself) would be fired on the spot.
The same thing applies post-copyright when people start selling software instead of copies. No purchaser is going to pay good money for a binary. They’ll demand the source or no deal.
Crosbie, what you said makes no sense. Without copyright, companies would be more interested in keeping the source code secret, not less, unless they were ideologically attached to open source. What would happen between a Microsoft employee and Microsoft is a contractual issue, not a copyright issue, and is hardly relevant.
People would still buy binaries if they have no interest or ability in using the source code, especially if the binary satisfies their computing needs. They would most likely also purchase a service contract to deal with updates or bugs from the company they bought the binary from, much as companies have service contracts with other companies for updates or bugs to open source software.
No doubt some would prefer the source, but if they’re that sophisticated, they probably already have their own coders who create original software as well as tweak existing software. But by no means is this appropriate for all users and companies, if only because of the increased productivity created from the division of labor.
Clem, Crosbie always trots out this incomprehensible line on the Against Monopoly blog–that he’s for IP but not for government privilege. I’ve never been able to get him to explain it in a coherent manner.
Crosbie Fitch wrote:
“Russ, in a world without copyright you can’t sell copies, so no-one is going to be interested in keeping the source code secret, especially given it is the source code they have to start selling.”
I’ve already explained how a developer could make money by giving away binaries, and then selling his services making customized modifications. And that’s just one of many possibilities. They wouldn’t have to sell source code.
“Even today, a software engineer employed by Microsoft who told them they should be happy paying him for his binaries as they were just as effective as his source code (which he’d prefer to keep to himself) would be fired on the spot.”
This is true, but completely irrelevant.
“The same thing applies post-copyright when people start selling software instead of copies. No purchaser is going to pay good money for a binary. They’ll demand the source or no deal.”
If a company says “$X for a binary, $100X for the source”, then there will be customers who would live without the source, believe me. I used to work for a company that made machine tools. The customer demanded the source code, which the machine tool company keeps proprietary. The president of the machine tool company said, “OK, the source is yours for $2 million, plus you sign a non-disclosure agreement.” (That was more than the cost of the automotive assembly machine that went with the software.) The customer stopped demanding the source code.
As hard as it may seem for some leftists: The FOSS movement is a copyright (and therefore ip) movement.
They do not want to abolish ip, but rather want it to be “better” in the future.
That (implying the property rights in intellectual works) is not libertarian.
It’s evidently very difficult for many to imagine a market for intellectual work in which copyright and patent have been abolished. NDAs are irrelevant if copyright no longer suspends an individual’s liberty to make/distribute copies. Contract cannot alienate someone from their freedom of speech.
Aren’t there any other natural rights libertarians here?
Anyway, if a software engineer is truly able to command a price of $2million on their software in a free market then that is the market price, and fine. If they are able to retain their market niche and can continue selling binary enhancements at $2k because no-one wants the source code (their IP without monopoly) at $2m then that’s fine too.
Are there really no competitors in the future?
Either the source code is indeed worth $2m, or it’s overpriced and a competitor can knock it out for $1m or less.
The free market rapidly brings the price of software (source code) to accord with the labour cost.
Binaries become free demonstrations that the software development (source code) has been produced to spec.
Stephan,
Without getting into the thick vs. thin on IP issue: As you well know, the theoretical framework of thick libertarianism is not inherently leftist. As you well know, even Hoppe is a thick libertarian, whether or not he self-consciously thinks of himself as one and whether or not he explicitly makes use of the different types of thickness identified by Johnson and Long. And of course, as you well know, I disagree with your as yet unsupported, and probably never to be supported, claims about thick libertarianism as such.