Judge.me, Private Arbitration and Intellectual Property

Tom Woods blogs about an intriguing new service, in I Love People Who Actually Do Things I Only Talk About:

Check out Judge.me, a new Internet-based dispute resolution website, being touted as an equitable and affordable alternative to government courts. The creator sent me a note alerting me to it, and I’m very interested. He also did an AMA (“Ask Me Anything”) at Reddit. Here’s how it works.

Jeff Tucker also wrote about it in Small Claims for the Digital Age:

Judge.me seems like an amazing idea. It’s a arbitration system for the digital age. It is especially useful for international disputes, resolved in days. The site owner answers detailed questions on Reddit. It raises an intriguing possibility that the real long-term results of the Ron Paul campaign won’t be political in the way people think of it but rather entrepreneurial. Many people have been inspired to start new businesses based on the idea of a pure voluntary order.

See the video below. This kind of simple, technology-based private arbitration should be of especial interest to anarcho-libertarians, who have long argued that private arbitration would play a significant role in justice in a stateless society.¹ In fact, its founder is a self-proclaimed anarcho-capitalist, as noted in his Reddit AMA.

One interesting thing is their choice of law, which matters given that many of the disputes might involve parties from different countries:

For court litigation, which law to apply (called “choice of law”) becomes an issue as soon as the dispute crosses jurisdictional borders. Even when the parties specified their choice of law in the contract, good lawyers find ways to challenge this which leads to choice of law becoming a trial on its own. To avoid this issue, smart arbitration service providers such as judge.me specify that rather than applying a certain local law, the arbitration will be resolved based on common law and [equity principles]. The concept of basing dispute resolution on “fairness and equity” is known under its latin name [“ex aequo et bono”].

I.e., disputes are resolved by common sense principles of justice—the general rules developed over time in common law and equity courts. (This is similar in a way to international law’s appeal to “the general principles of law recognized by civilized nations”. See my post, The UN, International Law, and Nuclear Weapons.)

But if you stick to justice, common sense, and basic property and libertarian rights, then statutory law is out. You don’t appeal to it when making a determination—unless both parties have agreed to this artificial legal standard. (See my Legislation and Law in a Free Society.) Now this brings to mind the case of so-called “intellectual property”—primarily patent and copyright. Both are the explicit results of massive state legislative schemes–the Copyright Act and the Patent Act. Some anarcho-libertarians who are nonetheless pro-IP, such as J. Neil Schulman and L. Neil Smith, are clear that they do not favor state-enforced IP. As I wrote elsewhere, Schulman, “as an anarchist, to his credit admits that if it could be shown that his version of IP could be enforced only by state law, he would abandon it…” In fact, if they are anarchists, they cannot support any legislation since legislation is a creature of the state. But then they turn around and say that they think private arbitration in a free society would be resorted to, to resolve IP and “plagiarism” disputes. Let’s forget for a second that plagiarism has nothing to do with copyright, patent, or market competition. Let’s forget that if you could sue someone for “copying” you unfairly, then this would open up a whole new realm of anti-competitive protectionism—anyone who competes with you, especially “unfairly”, is “stealing” your customers and unfairly “harming” you.

Let’s just assume we have a private legal system largely based on arbitration, which itself relies on general principles of justice, not on legislation. To sue someone you need to allege they have harmed you—invaded your property rights. Some contract breach, tort, trespass, or even crime. Now if you make the text of a novel or the digital file of a song or movie public (for whatever reason), and someone else copies and uses it and redistributes it (for free; or for monetary consideration); or if someone imitates your product and sells a competing ones—what possible common law claim could you have? None. You could make a copyright or patent claim, but only relying on the legistatist quo. You could not appeal to any organic legal principle developed in a decentralized free market legal order. It is not wrong to learn. To compete. To emulate. To copy. To steal customers. To “deprive” a competitor of profit. To do “something similar.” To use information that is publicly available.

My point? If we had a free society with a decentralized, non-legislated legal order, it is impossible to imagine there being patent or copyright law or claims, any more than someone could make a minimum wage or Americans with Disabilities Act claim absent those federal statutory schemes.

[TLS]

1. See, e.g., Linda & Morris Tannehill, The Market for Liberty; David Friedman’s The Machinery of Freedom: Guide to a Radical Capitalism; and “Imagining a Polycentric Constitutional Order: A Short Fable,” chapter 14 of Randy Barnett‘s The Structure of Liberty. [↩]