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Rothbard on Copyright and DVRs

From an old discussion thread on Ed Ucation, “Intellectual Property: As usual, Rothbard gets it right,” Economic Policy Journal. Comment by Conza (Michael Conaghan):

The latest Rothbard commentary on IP outdating all of the above. Note the intellectual honesty. Note the admission of seeking further commentary. Note the request for more information. Note the shattering of your position that Rothbard saw copyright in perpetuity.

“…Finally, there is the almost incredible harassment of VCR owners. If I buy a VCR and a blank tape, I should be able to tape a movie or other program off my own TV set. If the TV or movie people don’t like it, they should jolly well have to lump it. It is grotesque that movie producers might get the Supreme Court to agree to outlaw use of the VCR. Worse yet is that the movie producers are harassing poor SONY, who only manufactures and doesn’t use VCRs. Obviously, SONY has the deep pockets to enjoin and sue, which most home owners do not. Obviously, too, the government would have a great deal of difficulty mobilizing an enormous Gestapo, armed to the teeth, to break in on and confiscate or destroy the VCRs in many million American homes. Defend your VCRs to the death, fellow Americans! In practice, then, the movie people are not going to outlaw VCRs. They will just force SONY and the other manufacturers to pay a tax to the movie people, a tax which will be passed on to every VCR buyer. But the unfortunate principle—and the higher cost—might well be enshrined in the books.

The problem in all these cases is not whether “property rights” should or should not be upheld. The problem in each of these cases is: Who should have the property right? The computer hacker to do what he wants with his own computer and his access to the telephone lines, or the other computer owner? The signal sender or the signal receiver in the latter’s own equipment? The VCR owner or movie producers? In all of these cases I believe that the concept of copyright has been illegitimately extended to become invasive, and that the fact that the common law cannot combat these “crimes” is already an indication that they are not crimes at all.

But I am in an odd position here. Of all the people in the libertarian movement, I probably know the least about computer technology. There are few movement people lower tech than myself. And yet among all the computer mavens in the movement, I have seen no discussion of these thorny issues. But it is important to apply libertarian property rights theory, i.e. judgments in various areas on who is a criminal and who is a victim, to advancing technology. So on these matters I still have a relatively open mind. Before the Iron Door closes, I cheerfully invite libertarian theorists and high-tech mavens to submit papers, on any or all sides of this problem, for possible publication in the Libertarian Forum. Is there computer crime? Are VCR and satellite dish owners criminals? Please send in your discussions, and help advance libertarian theory.”

— Murray N. Rothbard, High Tech ‘Crime’: A Call for Papers, The Libertarian Forum, Vol. 17, No. 7-8, July-August, 1983.

Also, in 1988, on a panel discussion, Rothbard did not speak up or object when Hans-Hermann Hoppe, sitting next to him, dismissed the entire idea of IP. See Owning Thoughts and Labor [Rothbard and Hoppe on 1988 Panel] (Mises Blog, 2006). Finally, Rothbard’s criticism of defamation would apply equally to trademark, a form of IP, though to my knowledge Rothbard never criticized trademark law. See my forthcoming paper, “Defamation Law and Reputation Rights as a Type of Intellectual Property” (forthcoming 2024). And as I have pointed out, his clumsy attempt at defending some type of “contractual” or “common law” copyright (misnamed), is incompatible with Rothbard’s own revolutionary contract theory.

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