I mentioned previously the tragic case of the heroic young programmer and Internet freedom activist Aaron Swartz who committed suicide in the face of up to 50 years in federal prison for downloading some copyrighted academic articles that ought not be protected by copyright in the first place.1 This is yet another example of lives ruined by copyright; other examples include the outrageous gestapo raids on Kim Dotcom of Megaupload; censorship in the name of copyright;2 people put in federal prison for years for sharing movies, and so on).3
This is a horrific tragedy; it is murder by the state. A lof of the copyright skeptics are weighing in on this, most of them noting how sad this is; see, e.g, Glenn Greenwald’s The inspiring heroism of Aaron Swartz and Declan McCullagh’s comments. Unfortunately, most copyright “reformers” are not against copyright on principle. They do not want copyright abolished. We “need” some copyright. And if you have copyright, you have to enforce it. So they have to believe Swartz did something wrong in “taking” the academic articles, and deserved some punishment, even if 50 years is “obviously” “too harsh.”
As I said at the time of Swartz’s arrest, his actions were foolish and some punishment was probably appropriate. But he probably shouldn’t have been the subject of a criminal indictment and he certainly shouldn’t have faced felony charges.
Criminal punishment for … copying information … “probably” should not have been imposed? Probably? But if it “certainly” should not have been a felony (meaning a crime punishable by over a year in prison), what does this mean—that maybe a 6 month prison sentence would have been okay? And if not prison, what punishment was appropriate—a million bucks? Lee is wrong. Swartz deserved no punishment at all, and, contra his blog post title, the problem with copyright is not the feds going “overboard” in enforcing it, but in having copyright at all. Copyright is censorship, it is evil, it is death.
As another example: Lawrence Lessig, in his post Prosecutor as Bully, wrote:
First, of course, Aaron brought Aaron here. As I said when I wrote about the case (when obligations required I say something publicly), if what the government alleged was true — and I say “if” because I am not revealing what Aaron said to me then — then what he did was wrong. And if not legally wrong, then at least morally wrong. The causes that Aaron fought for are my causes too. But as much as I respect those who disagree with me about this, these means are not mine.
But all this shows is that if the government proved its case, some punishment was appropriate. So what was that appropriate punishment? Was Aaron a terrorist? Or a cracker trying to profit from stolen goods? Or was this something completely different?
Again: no, he did nothing wrong. Absent copyright neither JSTOR nor MIT would have any cause of action for the copying of public information. And no punishment was appropriate whatsoever. The only evil here is the state, and its evil copyright law, which all lovers of liberty must oppose completely, utterly, root and branch.
Update: See two excellent posts about Swartz, by Brad Rodriguez, Cory Doctorow, and Jeff Tucker, below:
REMEMBER AARON SWARTZ
[Brad Rodriguez]
I don’t know why the suicide of Aaron Swartz has affected me so strongly. Before last Friday, I didn’t know his name, though I did remember his stunt of planting a laptop computer in an MIT wiring closet in order to download gigabytes of data from their internal network. Certainly there are greater injustices in the world than the trial he was about to face. Perhaps it is because Swartz reminds me so much of myself — a sense of “there, but for the grace of God, go I” — but I don’t think that’s it. I think his case crystallizes for me how deeply entrenched the two-tier “justice” system is in the United States — and how brutal the lower tier is.
His case was certainly an example of prosecutorial overkill, demanding felony charges and 30 years imprisonment for what amounts to a violation of terms of service:
…some legal experts considered the case unfounded, saying that MIT allows guests access to the articles and Swartz, a fellow at Harvard’s Safra Center for Ethics, was a guest.
As a guest at MIT, Swartz had full legal access to the campus network. And I understand that MIT’s agreement with academic publisher JSTOR allows MIT users unlimited access to academic papers published on their website. Had Swartz stayed at home and downloaded a few thousand academic papers, he would have been perfectly within his rights. But by taking his laptop to MIT, plugging it directly into their high-speed network, and leaving it there for a day to download nearly 5 million academic papers, he — in MIT’s opinion — exceeded his privileges…and deserved criminal charges. Mix in one federal prosecutor with a “serious hate-on” for Swartz (as Cory Doctorow memorably put it), and you have a 26-year-old genius being threatened with 30 years in prison and a lifetime felony record. All this for “stealing” data which (a) was rightfully his to access, (b) was returned by him with no harm done, and (c) was nearly all publicly funded and therefore, theoretically, in the public domain.
Contrast this with Jon Corzine, who “lost”, with no explanation, $1.6 billion of MF Global customers’ money — real money taken from real people — and whom federal prosecutors declined to charge with anything.
In the aftermath, I’m reading plenty of rallying cries that the time is now to reform the American “justice” system. And yes, truly, that is where the problem lies. Overly expansive law, criminalizing a civil contract violation. Overly aggressive prosecutors, who use the law as a bludgeon to get a plea bargain, sparing them the necessity to prove their case. Too much “law and order” mentality, demanding harsher and harsher sentences for smaller and smaller crimes. And the two-tier justice system, by which the rich and well-connected get off scot-free, and the rest of us must bankrupt ourselves defending from the tax-funded prosecutor, or be thrown in jail.
Yes, that system needs to be overhauled or exterminated, root and branch. But I’m sorry to inform everyone: that’s never going to happen. Nothing short of a second American revolution will blast the powerful and the elite from their privileged positions, and the dependent and oblivious public will never revolt. Calls for reform are a waste of breath.
So what to do? I’d suggest a boycott of MIT, whose behavior in this entire affair has been starkly reprehensible — they could have dropped charges but did not. (By contrast, JSTOR reportedly did drop that demand once the documents had been returned.) I hope MIT will suffer a stain on its reputation that will take decades of hard work to eradicate. But, unless you are of college age, and shopping around for a university, how do you withdraw your business? (Needless to say, if you are considering MIT, I strongly encourage you to go anywhere else. Especially if you’re studying computer science, because you’ll never know when MIT will choose to prosecute you for connecting to their network.**)
No, I’ve concluded that there is only one place where meaningful change can actually be accomplished: it’s time to put an end to the academic publishing industry. I don’t mean an end to publishing — just an end to the industry which has grown around academia, taking their money from both sides (authors and readers) and demanding outrageous privileges and protections.* An end to the JSTORs of the world, and their never-ending quest to lock down freely contributed (and tax-paid!) content.
Unlike other objectives, I think this one is achievable. First, academia is moving in this direction anyway — more and more authors are grumbling about excessive page charges and glacial publishing schedules, and looking for an alternative. Second, the Internet means that viable “e-publishing” alternatives are starting to exist — such as the (now) well known arXiv.
Third, I can’t think of a more fitting tribute to Aaron Swartz, who was persecuted for attempting to liberate academic content from behind paywalls. Now is the time.
I’m not saying that this will be easy. Academics operate on a “publish or perish” system whereby their promotions and tenure depend upon their publications. Right now, certain journals are more prestigious than others and confer more credit, thus those journals can charge more for publication and are more likely to appear in the campus library. The bias has to change in favor of “open access” journals. This means university and department administrators have to start giving more credit to on-line instead of print publications. And authors have to start making on-line publication their first, rather than last, choice. It would help if some high-profile authors would make a public commitment to publishing exclusively on-line, but that may not happen. Still, tenured academics could make such a commitment…and it would be a powerful statement.
Now, I doubt that 99% of academics know who Aaron Swartz is, or care. I don’t think that’s necessary; because what I’m proposing is to take a movement which has already started and give it an extra push. And if the 1% who do care add their effort, and change their habits, then the day of free and open academic publishing will come that much sooner.
__________
* Many years ago, I completely stopped writing for ACM (Association for Computing Machinery) publications, because they began demanding that authors assign all copyrights to them, preventing authors such as me from posting their own work on their own web pages. Mind you, I was never paid for my articles — and even if I had been, the demand would still be outrageous.
** In my first year of graduate school, I found a backdoor into a campus computer and promptly made myself an administrator, locking the real administrator out for a day. Back then, that made me a prankster. Today, that would make me a felon…at least at MIT.
My apologies for the sad tone of this piece, but a hero has fallen and we need to pay him tribute — and make sure his death is not in vain.
Every turning point in the history of civilization has its champions and its opponents. The opponents of the digital age are those who use the power of the state to keep the population in a state of ignorance, even though the technology is at hand to universalize knowledge through digital networks. The main weapon they use is known as “intellectual property,” even though the monopoly censorship they advocate has nothing to do with actual property.
The champions of the digital age are doing the opposite, breaking down the limits and working to spread enlightenment through peaceful means. They understand the astonishing power of computer networks to produce, reproduce, scale, and distribute unto infinity everything that can be rendered into digital form. Their work has set off the greatest migration in human history from the limits of the physical world to the unlimited possibilities embedded in global computer networks.
One such champion — now a martyr for the cause of freedom — was Aaron Swartz (1986-2013). He was the one of the brightest stars of his generation. That star took his own life in apparent frustration, depression, and fear over the ghastly hounding he was receiving from the U.S. Department of Justice. You might say that this David should have battled this Goliath to the death. But Aaron was only 26, a brilliant, kind, and sensitive young man whose passion was not war, but enlightenment. It was too much for him.
Born in Chicago, he showed astonishing promise at an early age. He came of age as the Internet opened to the world. He was winning prizes and meeting the greats at the Massachusetts Institute of Technology at the age of 13. At 14, he co-authored “Really Simple Syndication,” an innovative means of assembling and distributing Web content that makes Web browsing easy. It powers the “app economy,” makes reader programs work, and enables the content to be mixed and remixed all over the digital universe.
Aaron founded in Infogami, which later turned into Reddit, one of the Web’s most popular sites for information sharing and content generation. As with most of his projects, Reddit pushes aside the gatekeepers and puts the tools of creation in the hands of users. He then founded openlibrary.org on the same principle: By devolving power to you and me and away from the big shots, we can create tools that serve humanity in unprecedented ways.
To Aaron, the digital economy was not really about running the world through code and technology. It was about empowering people themselves with the ability to contribute to the building of ever greater technologies in the service of humanity. As much as he loved code, his true affections were for the human mind and the way technology enables it to take flight as never before. He could never understand why government was in resistance. He was like a person in the Renaissance raised with the printing press, astonished at people who wanted to smash it.
He was so convinced that digits were powered by human minds that he even put it to the test in seeking the real power behind Wikipedia. He refuted the supposition of even co-founder Jimmy Wales that it was a relatively small number of editors who were the main content providers. He demonstrated that the main providers were millions of users themselves, thereby upending even what the owners and experts had supposed. (He was only 19 years old when he showed this.)
Aaron was facing a trial this coming April, with him on one side and the full power of the world’s most heavily armed government on the other. The prosecution wanted him fined more than a million dollars and jailed for possibly 30-plus years. And what had he done? He hid a laptop in a closet at MIT and downloaded academic papers that are already available to millions around the world, with the apparent attempt to make them available even more broadly. That’s all he did. For this, he was charged with wire fraud and computer fraud.
The database he had tapped into is known as JSTOR. It is a global archive of academic papers published over the last 100 years in all fields and disciplines. It allows students to search, assemble, cite, and study in ways that would have been unimaginable a generation ago. Bibliographies that once took months to assemble now take seconds. Research once available to a tiny number is now available to students and faculty the world over.
JSTOR is a mighty service, even a marvel, and there are good reasons to celebrate the company and its achievements. At the same time, there is something squirrely about the service. It is available only at superhigh subscription prices and allocated based on geographic IP address. If you are on campus, you can get the goods. If you are not and have no logins, you are out of luck. Outside the IP range, it’s darkness.
Remember, we are talking about scientific research that is mostly tax-funded and from which the authors themselves receive no royalty or payment of any kind. Moreover, the subscription system is made profitable not because of the forces of free enterprise, but because the payments are made largely by public universities also living off taxpayers. The whole thing smacks of a kind of information feudalism. The scientists are the serfs. Those without access are cast into the outer darkness.
To its credit, JSTOR never lifted a finger against Aaron. They knew of his downloads, but never pressed charges. In fact, JSTOR has responded to his activism by gradually moving toward a more open policy. MIT can’t say the same, but the real villain here was the federal government. “Stealing is stealing,” barked U.S. District Attorney Carmen Ortiz, “whether you use a computer command or a crowbar, and whether you take documents, data, or dollars.”
Except for one thing: That is completely false. Crowbars hurt people. Stealing dollars takes from one person to give to another. But Aaron didn’t take anything away from anyone. Ortiz might not understand this, but when you download something, it doesn’t actually remove it from the original server. It makes an exact copy. It can do this with no limit. That’s the whole power of digital media.
The driving motivation in Aaron’s mind was information liberation. We have the capacity — right now in our times — to create global libraries of all known things. What’s stopping it is this antique institution known as copyright, an outright government privilege for monopolistic producers who use the violence of the state to stop peaceful sharing of knowledge. Aaron was offended by such limits in times when they are wholly unnecessary and cause unneeded human suffering.
Aaron didn’t choose the path of piracy and underground hacking to disable the feudalism. He wasn’t even particularly exercised about copyright itself. What he favored was freedom, free speech in particular. He sought constructive alternatives, which is why he was a great champion of Creative Commons, a system that uses existing copyright law, but allows writers and researchers to share their discoveries and creations with humanity, instead of having them smothered.
All that said, it wasn’t his attempt to liberate JSTOR that caused the government to go after him. No, it was something far more specular. Aaron also founded Common Dreams as a vehicle for digital activism. Much to the astonishment of nearly everyone, he marshaled the power of global networks last year to beat back one of the most deadly pieces of legislation to ever be proposed by Congress: the Stop Online Piracy Act, or SOPA.
SOPA was at war with the whole idea of information sharing, which is to say the whole basis of modern economic life and cultural progress. It would have given the power to any private party to aggress against any distributor of information and to do so without warnings, hearings, or burdens of proof. Taken to its extreme, the legislation would have rolled back history to a pre-1995 state of being.
Because no one told him that he could not, Aaron used every innovation to stop it. Within a matter of weeks, Congress backed off in absolute fear of the global outrage that had been engendered by the educational materials that Aaron had distributed. What no one expected had happened. Even politicians in the pay of media moguls backed down.
It was beautiful. In doing this, Aaron not only stopped the leviathan state; he pointed to the possibility of something completely marvelous, a reinvention of the way that citizens take part in the political process. In other words, he was showing how computer networks themselves could be used to upend the power of the state as we know it. He was innovating a new form of restraining power and giving it back to people, doing for the business of civic affairs what he had already done with technology.
The establishment was insanely bitter about the defeat. Within days, the government took action against the popular file-sharing site Megaupload in a military-style hit against its founder’s private estate, using SOPA-like powers that Congress had just denied the beast. It was as if the establishment was saying, “We don’t care about Aaron and what he did. We want this power. We are going to use the power. The people have nothing to do with it.”
Aaron’s work pointed to a brighter future. The government never forgave him for this. This is why they hounded him. This is why they wanted to bankrupt him. This is why they wanted him behind bars. They wanted him brought low. They wanted him in an orange jumpsuit, eating old bread and groveling before the judges and wardens. And they would accept no compromise, despite his lawyers attempts to negotiate: Aaron must be captured and jailed.
He would not relent. He would not give up his dreams and let them be shattered by their lies, pomps, black robes, and prisons. Our hearts break — deeply and profoundly — at Aaron’s decision to take his life. Maybe he saw it as a last cry for freedom. His having done so makes it impossible for them to make him a slave.
The state has taken from us an epic genius and humanitarian. What can come of this? Sometimes, the suffering and death of one great individual can shock society into dramatic change in a legal practice. Such people become martyrs, and their memories touch the conscience of everyone. We are overwhelmed by the sense of loss, and we vow to never see its like again.
“The tyrant dies and his rule is over, the martyr dies and his rule begins.” — Soren Kierkegaard
To the extent possible under law, Cory Doctorow has waived all copyright and related or neighboring rights to “RIP, Aaron Swartz.”
Update: Go read Lessig: “He was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.”
My friend Aaron Swartz committed suicide yesterday, Jan 11. He was 26. I got woken up with the news about an hour ago. I’m still digesting it — I suspect I’ll be digesting it for a long time — but I thought it was important to put something public up so that we could talk about it. Aaron was a public guy.
I met Aaron when he was 14 or 15. He was working on XML stuff (he co-wrote the RSS specification when he was 14) and came to San Francisco often, and would stay with Lisa Rein, a friend of mine who was also an XML person and who took care of him and assured his parents he had adult supervision. In so many ways, he was an adult, even then, with a kind of intense, fast intellect that really made me feel like he was part and parcel of the Internet society, like he belonged in the place where your thoughts are what matter, and not who you are or how old you are.
But he was also unmistakably a kid then, too. He would only eat white food. We’d go to a Chinese restaurant and he’d order steamed rice. I suggested that he might be a supertaster and told him how to check it out, and he did, and decided that he was. We had a good talk about the stomach problems he faced and about how he would need to be careful because supertasters have a tendency to avoid “bitter” vegetables and end up deficient in fibre and vitamins. He immediately researched the hell out of the subject, figured out a strategy for eating better, and sorted it. The next time I saw him (in Chicago, where he lived — he took the El a long way from the suburbs to sit down and chat with me about distributed hash caching), he had a whole program in place.
I introduced him to Larry Lessig, and he was active in the original Creative Commons technical team, and became very involved in technology-freedom issues. Aaron had powerful, deeply felt ideals, but he was also always an impressionable young man, someone who often found himself moved by new passions. He always seemed somehow in search of mentors, and none of those mentors ever seemed to match the impossible standards he held them (and himself) to.
This was cause for real pain and distress for Aaron, and it was the root of his really unfortunate pattern of making high-profile, public denunciations of his friends and mentors. And it’s a testament to Aaron’s intellect, heart, and friendship that he was always forgiven for this. Many of us “grown ups” in Aaron’s life have, over the years, sat down to talk about this, and about our protective feelings for him, and to check in with one another and make sure that no one was too stung by Aaron’s disappointment in us. I think we all knew that, whatever the disappointment that Aaron expressed about us, it also reflected a disappointment in himself and the world.
Aaron accomplished some incredible things in his life. He was one of the early builders of Reddit (someone always turns up to point out that he was technically not a co-founder, but he was close enough as makes no damn), got bought by Wired/Conde Nast, engineered his own dismissal and got cashed out, and then became a full-time, uncompromising, reckless and delightful shit-disturber.
The post-Reddit era in Aaron’s life was really his coming of age. His stunts were breathtaking. At one point, he singlehandedly liberated 20 percent of US law. PACER, the system that gives Americans access to their own (public domain) case-law, charged a fee for each such access. After activists built RECAP (which allowed its users to put any caselaw they paid for into a free/public repository), Aaron spent a small fortune fetching a titanic amount of data and putting it into the public domain. The feds hated this. They smeared him, the FBI investigated him, and for a while, it looked like he’d be on the pointy end of some bad legal stuff, but he escaped it all, and emerged triumphant.
He also founded a group called DemandProgress, which used his technological savvy, money and passion to leverage victories in huge public policy fights. DemandProgress’s work was one of the decisive factors in last year’s victory over SOPA/PIPA, and that was only the start of his ambition.
I wrote to Aaron for help with Homeland, the sequel to Little Brother to get his ideas on a next-generation electioneering tool that could be used by committed, passionate candidates who didn’t want to end up beholden to monied interests and power-brokers. Here’s what he wrote back:
First he decides to take over the whole California Senate, so he can do things at scale. He finds a friend in each Senate district to run and plugs them into a web app he’s made for managing their campaigns. It has a database of all the local reporters, so there’s lots of local coverage for each of their campaign announcements.
Then it’s just a vote-finding machine. First it goes through your contacts list (via Facebook, twitter, IM, email, etc.) and lets you go down the list and try to recruit everyone to be a supporter. Every supporter is then asked to do the same thing with their contacts list. Once it’s done people you know, it has you go after local activists who are likely to be supportive. Once all those people are recruited, it does donors (grabbing the local campaign donor records). And then it moves on to voters and people you could register to vote. All the while, it’s doing massive A/B testing to optimize talking points for all these things. So as more calls are made and more supporters are recruited, it just keeps getting better and better at figuring out what will persuade people to volunteer. Plus the whole thing is built into a larger game/karma/points thing that makes it utterly addictive, with you always trying to stay one step ahead of your friends.
Meanwhile GIS software that knows where every voter is is calculating the optimal places to hold events around the district. The press database is blasting them out — and the press is coming, because they’re actually fun. Instead of sober speeches about random words, they’re much more like standup or the Daily Show — full of great, witty soundbites that work perfectly in an evening newscast or a newspaper story. And because they’re so entertaining and always a little different, they bring quite a following; they become events. And a big part of all of them getting the people there to pull out their smartphones and actually do some recruiting in the app, getting more people hooked on the game.
He doesn’t talk like a politician — he knows you’re sick of politicians spouting lies and politicians complaining about politicians spouting lies and the whole damn thing. He admits up front you don’t trust a word he says — and you shouldn’t! But here’s the difference: he’s not in the pocket of the big corporations. And you know how you can tell? Because each week he brings out a new whistleblower to tell a story about how a big corporation has mistreated its workers or the environment or its customers — just the kind of thing the current corruption in Sacramento is trying to cover up and that only he is going to fix.
(Obviously shades of Sinclair here…)
also you have to read http://books.theinfo.org/go/B005HE8ED4
For his TV ads, his volunteer base all take a stab at making an ad for him and the program automatically A/B tests them by asking people in the district to review a new TV show. The ads are then inserted into the commercial breaks and at the end of the show, when you ask the user how they liked it, you also sneak in some political questions. Web ads are tested by getting people to click on ads for a free personality test and then giving them a personality test with your political ad along the side and asking them some political questions. (Ever see ads for a free personality test? That’s what they really are. Everybody turns out to have the personality of a sparkle fish, which is nice and pleasant except when it meets someone it doesn’t like, …) Since it’s random, whichever group scores closest to you on the political questions must be most affected by the ad. Then they’re bought at what research shows to be the optimal time before the election, with careful selection of television show to maximize the appropriate voter demographics based on Nielsen data.
anyway, i could go on, but i should actually take a break and do some of this… hope you’re well
This was so perfect that I basically ran it verbatim in the book. Aaron had an unbeatable combination of political insight, technical skill, and intelligence about people and issues. I think he could have revolutionized American (and worldwide) politics. His legacy may still yet do so.
Somewhere in there, Aaron’s recklessness put him right in harm’s way. Aaron snuck into MIT and planted a laptop in a utility closet, used it to download a lot of journal articles (many in the public domain), and then snuck in and retrieved it. This sort of thing is pretty par for the course around MIT, and though Aaron wasn’t an MIT student, he was a fixture in the Cambridge hacker scene, and associated with Harvard, and generally part of that gang, and Aaron hadn’t done anything with the articles (yet), so it seemed likely that it would just fizzle out.
Instead, they threw the book at him. Even though MIT and JSTOR (the journal publisher) backed down, the prosecution kept on. I heard lots of theories: the feds who’d tried unsuccessfully to nail him for the PACER/RECAP stunt had a serious hate-on for him; the feds were chasing down all the Cambridge hackers who had any connection to Bradley Manning in the hopes of turning one of them, and other, less credible theories. A couple of lawyers close to the case told me that they thought Aaron would go to jail.
This morning, a lot of people are speculating that Aaron killed himself because he was worried about doing time. That might be so. Imprisonment is one of my most visceral terrors, and it’s at least credible that fear of losing his liberty, of being subjected to violence (and perhaps sexual violence) in prison, was what drove Aaron to take this step.
But Aaron was also a person who’d had problems with depression for many years. He’d written about the subject publicly, and talked about it with his friends.
I don’t know if it’s productive to speculate about that, but here’s a thing that I do wonder about this morning, and that I hope you’ll think about, too. I don’t know for sure whether Aaron understood that any of us, any of his friends, would have taken a call from him at any hour of the day or night. I don’t know if he understood that wherever he was, there were people who cared about him, who admired him, who would get on a plane or a bus or on a video-call and talk to him.
Because whatever problems Aaron was facing, killing himself didn’t solve them. Whatever problems Aaron was facing, they will go unsolved forever. If he was lonely, he will never again be embraced by his friends. If he was despairing of the fight, he will never again rally his comrades with brilliant strategies and leadership. If he was sorrowing, he will never again be lifted from it.
Depression strikes so many of us. I’ve struggled with it, been so low I couldn’t see the sky, and found my way back again, though I never thought I would. Talking to people, doing Cognitive Behavioral Therapy, seeking out a counsellor or a Samaritan — all of these have a chance of bringing you back from those depths. Where there’s life, there’s hope. Living people can change things, dead people cannot.
I’m so sorry for Aaron, and sorry about Aaron. My sincere condolences to his parents, whom I never met, but who loved their brilliant, magnificently weird son and made sure he always had chaperonage when he went abroad on his adventures. My condolences to his friends, especially Quinn and Lisa, and the ones I know and the ones I don’t, and to his comrades at DemandProgress. To the world: we have all lost someone today who had more work to do, and who made the world a better place when he did it.
Patent and copyright are now among one of the most egregiously unjust and harmful of modern statist policies.1 Utterly evil, tyrannical, life-destroying,2 wealth- and innovation-impeding,3 it is a prime candidate for immediate and outright abolition, right after the drug war, taxes, government education, the fed, and war. It is one of the top priorities of any radical (read: principled and consistent) libertarian. We must abolish IP.
But not all libertarians see it this way, unfortunately. Witness a recent Federalist Society panel, featuring Richard Epstein, Adam Mossoff, and Randall Rader, Chief Judge of the main patent appeals court (CAFC), discussing the recent patent reform law, the America Invents Act, or AIA. (Undermining or Preserving Property Rights? The New Administrative Patents 11-15-12.) As is depressingly common when any mainstream thinkers comment on patents and patent reform, whether conservative, liberal, or even somewhat libertarian, the entire discussion is presented in utilitarian terms; the only subject under discussion is how to tweak the patent system, never questioning whether it is fundamentally justified or not and never entertaining the possibility of patent abolition.
One would not expect the chief federal patent judge to do anything but support the state’s IP system, and law professors Richard Epstein (a libertarian) and Adam Mossoff (an Objectivist) are both pro-patent. The entire discussion is surreal: the participants repeatedly talk about various cost-benefits, without ever producing any studies with real numbers, even though the burden of proof is clearly on them to justify the system they support on utilitarian grounds.4
Epstein’s approach to policy is thoroughly utilitarian; it informs his political theory in his book Takings, but at least in that book he argues that only laws and policies that are shown to generate net wealth (so that there is a surplus from which the expropriated parties can be compensated) are justified. He puts the burden of proof on those arguing for state regulations and laws that prima facie impinge on common law property rights. They can’t just say that a given regulation generates net societal welfare gains; they must show it. In Takings, Epstein argues that there are a few narrow areas where there is such an obvious “market failure” or “public good” issue or “free-rider problem” that state policies (like public roads) clearly generate enough surplus to compensate those expropriated and leave more left over for society as a whole, thus making us better off. But in the field of IP he supports it based only on hypothetical arguments—if patent and copyright stimulate enough extra innovation (more than that which is distorted or suppressed) and if the value of this net innovation is greater than the cost the system imposes on society, then we are all all, on the whole, better off. Yet neither he nor his pro-IP comrades show that the if is satisfied. They produce no data; they don’t tell us the value of this net innovation, or even that there is net innovation (that it’s a positive number), nor that it’s greater than the cost of the system. Their case is hypothetical, yet they support IP categorically.5 What is a bit amusing is to see various empiricist-utilitarians accusing each other of not having any evidence, though why they think this is scoring any points is a mystery, as they usually admit, if pressed, that they don’t have any evidence either. But we have Geoffrey Manne accusing Alex Tabarrok of making a “silly” argument about optimal patent terms, because Tabbarrok has no evidence,6 and alluding to Epstein’s similar criticism of Judge Richard Posner,7 while Manne himself admits he has no evidence.8 And come to think of it, where is Esptein’s evidence?9 None of these commentators, who claim that patents are justified if and to the extent they produce net social innovation gains, even attempt to prove that patents do this.
Mossoff’s Objectivist approach to IP (though he seems to nod to the utilitarian justification for IP in most of his talks about it with non-Objectivists) is also deeply flawed, as I have pointed out previously.10 His argument is a strange admixture of utilitarian arguments, Randian “creationist” property principles, and legal positivism (as when he argues that the Founders or Locke viewed IP as a natural or property rights, or that patent and copyright “can” be viewed as property rights; the correct response to which is: so what?).11
Judge Rader then weighs in with:
Are you aware of any empirical study that validates the idea that the patent system or any series of patents have stifled rather than encouraged innovation? … It’s a trick question. There is none.
This formulation attempts to switch the burden of proof: if the patent opponents can’t prove that patents are harmful, then we have no complaints. But it’s just the opposite: this scheme facially limits property rights and competition on the free market; proponents of these derogations from free market competition and traditional private property rights claim that it is justified because it does make us all better off by stimulating net innovation. Surely the burden is on them to show that these laws do what they claim they do.12 As Tom Bell observed in a recent book review of a pro-IP book:
The burden of proof should fall on those who advocate such legislative privileges in derogation of our natural and common law rights—a burden that Laws of Creation picks up, but does not fully carry.13
This is very sad. As noted previously on Techdirt:
Not much has been said about the Aaron Swartz case over the past year as the wheels of “justice” slowly grind their way to an eventual court date. Swartz, the executive director of Demand Progress, was charged with violating the Computer Fraud and Abuse Act, a catch-all designation for “computer activity the US government doesn’t like.”
Swartz had accessed MIT’s computer network to download a large number of files from JSTOR, a non-profit that hosts academic journal articles. US prosecutors claimed he “stole” several thousand files, but considering MIT offered this access for free on campus (and the files being digital), it’s pretty tough to square his massive downloading with any idea of “theft.”
Not only that, but JSTOR was not the entity pressing charges. It had stopped the downloading and secured the “stolen” content, along with receiving assurances from Swartz that the files would not be distributed. Despite this, the feds felt compelled to arrest Swartz and charge him with four felony counts (one each for Wire Fraud, Computer Fraud, Theft of Information from a Computer and Recklessly Damaging a Computer). At this point, Swartz was looking at a possible 35-year sentence and over $1,000,000 in fines.
Computer activist Aaron H. Swartz committed suicide in New York City yesterday, Jan. 11, according to his uncle, Michael Wolf, in a comment to The Tech. Swartz was 26.
“The tragic and heartbreaking information you received is, regrettably, true,” confirmed Swartz’ attorney, Elliot R. Peters of Kecker and Van Nest, in an email to The Tech.
Swartz was indicted in July 2011 by a federal grand jury for allegedly mass downloading documents from the JSTOR online journal archive with the intent to distribute them. He subsequently moved to Brooklyn, New York, where he then worked for Avaaz Foundation, a nonprofit “global web movement to bring people-powered politics to decision-making everywhere.” Swartz appeared in court on Sept. 24, 2012 and pleaded not guilty.
The accomplished Swartz co-authored the now widely-used RSS 1.0 specification at age 14, was one of the three co-owners of the popular social news site Reddit, and completed a fellowship at Harvard’s Ethics Center Lab on Institutional Corruption. In 2010, he founded DemandProgress.org, a “campaign against the Internet censorship bills SOPA/PIPA.”
This heroic guy’s life was no doubt left in shambles by the criminal state’s persecution of him based on these ridiculous copyright charges, and it apparently led him to take his life. So sad. [continue reading…]
Laws of Creation, by Ronald A. Cass and Keith N. Hylton, offers a studied explanation of the various legal devices popularly styled as “intellectual property” or simply “IP”. In calm and lucid prose, it describes the policy ideals that do (or at least should) shape copyright, patent, trade secret, and trademark law. The Laws of Creation offers about as good a defense of the status quo as anyone could ask, and as such deserves to become a standard reference point in future debates about IP policy. This review of the book’s treatment of copyright aims to show, moreover, that Laws of Creation has much to teach us even when it fails.
Laws of Creation takes a soberly utilitarian approach to the question of whether we should recognize property rights in copyrights and other forms of IP. The text frankly admits that “little empirical evidence exists to shed light on the issues central to the design of intellectual property rights.” (P. 45). Rather than hard data, therefore, Laws of Creation seeks “the most plausible predictions respecting the operation of the law.” (P. 47). It applies this methodology—light on practice, heavy on theory—to conclude that “copyright law seems to provide a reasonable set of rules.” (P. 99).
On this and other points, the Laws of Creation shows admirable modesty. When in doubt, however, it tends to err on the side of making copyrights more powerful. With regard to copyright’s term, for instance, it suggests making a core set of rights last forever. (P. 124). In that, Laws of Creation goes beyond even what the Constitution would allow.
Whence comes this bias in favor of copyrights? It starts with the otherwise commendable presumption that “in most instances secure property rights with voluntary exchange provide the best prospect for enhancing wealth.” (p. 24). Laws of Creation frankly admits that expressive works, being non-excludable and non-rivalrous in consumption, differ fundamentally from tangibles such as land, cars, and apples. It nonetheless calls the whole lot “property,” a popular but misguided rhetorical move that evidently sways the analysis. If property is good, and copyright is property . . . the conclusion follows all too quickly. [continue reading…]
For those curious about the actual patent process, Chef America, Inc. v. Lamb-Weston, Inc. is an interesting and short recent case. This is a typical example of how patent attorneys describe reality and how federal judges handle patent disputes.
The case concerns U.S. Pat. No. 4,761,290 (PDF version; USPTO version), owned by plaintiff Chef America.
The patent covers “[a] process for producing a dough product which is convertible upon finish cooking by baking or exposure to microwaves in the presence of a microwave susceptor into a cooked dough product having a light, flaky, crispy texture.” The patent explains that with prior dough products “[i]n large measure, instead of the desired light, flaky, crispy texture, the cooked products have been found to be leathery, in the case of baked products, or soggy in the case of microwave heated products.” It involves the process of “applying a layer of shortening flakes between the dough and a light batter which is applied to the dough, setting the batter and subsequently melting the shortening flakes present in the set batter in order to form pin holes or air cells in the batter and at the surface of the dough. Upon finish cooking, these pinholes or air cells form a porous product and permit the batter to be quickly heated and browned, resulting in a dough product having a light, flaky, crispy texture to the pocket.”The patent’s technical description explains that the dough is cooked in an oven, at a temperature from about 400 degrees F. to 850 degrees F. The problem is that the claims of the patent–which specify what invention is legally protected–include the step: “heating the resulting batter-coated dough to a temperature in the range of about 400° F. to 850° F. for a period of time ranging from about 10 seconds to 5 minutes to first set said batter and then subsequently melt said shortening flakes, whereby air cells are formed in said batter and the surface of said dough”.
The claim should have said heating the dough “at” that temperature, not “to” that temperature. The dough is in an oven which is at 400° F. to 850° F., but the dough does not reach this temperature. If it did, it would burn up. Lamb-Weston was accused of infringing the claims of Chef America’s patent. But Lamb-Weston pointed out that it did not heat dough “to 400° F.”; therefore, it did not infringe the claims.
Chef America argued “that ‘to’ should be construed to mean ‘at’ because otherwise the patented process could not perform the function the patentees intended”. In other words, the claim is nonsensical if you construe “to” to mean “to”; anyone skilled in the art (e.g., a chef) reading the claim would understand it to mean that the oven is at the specified temperature, not the dough being cooked.
However, the appeals court held that the language was unambiguous and the court would not rewrite it. As the court stated, “we construe the claim as written, not as the patentees wish they had written it. As written, the claim unambiguously requires that the dough be heated to a temperature range of 400° F. to 850° F.”
H.R. 193 would force farmers to pay a fee on saved seeds and register them
Farmers around the country Fridayexpressed frustration after learning about House Resolution 193. H.R. 193 would require farmers to register their seeds with the Secretary of Agriculture after a harvest. The farmers would then have to pay a fee for retaining those seeds. However, H.R. 193 is not that simple.
Farmers who purchase and grow patented seeds are the ones who would have to register their seeds after a harvest. A patented seed is a seed that is the product of human intervention and has been claimed as intellectual property. Although it may seem like a recent trend, Louis Pasteur made the first patent on a living organism in 1873. Pasteur patented yeast. Most patents in question, however, are patents by the company Monsanto on their genetically engineered seeds.
H.R. 193 would change things for farmers who purchase patented seeds and then grow those seeds. After the harvest, many farmers save the seeds that they can, seeds produced from the product they already paid for. H.R. 193 would force those farmers who save their seeds to register those seeds with the Secretary of Agriculture. After they register those seeds, the farmers would then have to pay fees set aside by the Secretary of Agriculture for keeping the seeds, “and for other purposes”.
When writing about the commons, one is likely to stumble into some awfully strange bedfellows. The last place I expected to find an attack on the institution of intellectual property was the Ludwig von Mises Institute, a far-right libertarian think-tank. And yet, there it is, right on their site: “Ideas Are Free: The Case against Intellectual Property,” a lecture from the 2010 Annual Meeting of the Property and Freedom Society by Stephan Kinsella. What would make a free-market fundamentalist oppose any kind of right to property?
Of course, I am not in any sense a right-winger or right-libertarian; nor am I a left-libertarian. Standard libertarians reject the left- and right prefixes. We reject the coherence of the “right” or “conservative” philosophy; we reject the substance of leftism; we reject the implications of the left-right spectrum, which seeks to relegate more radical, coherent, and sound views—namely, libertarianism—to some “middle” status. We are not in-between left and right; we are orthogonal thereto. We are far superior to the evil left and the evil and incoherent right (see Better than the Nolan Chart). And we are not opposed to property—no one is; everyone has some view of property rights. The particular libertarian property allocation rules are unique and what define us (see What Libertarianism Is); but “IP” is misnamed, and is not property (Intellectual Properganda; Intellectual Poverty). Rather, it undermines and invades libertarian property rights (Intellectual Property Rights as Negative Servitudes). It is a state-granted monopoly privilege, not a genuine libertarian property right. That is why we libertarians oppose IP: because we are pro-property rights, and IP is anathema thereto. In fact, the only coherent reason to oppose IP is in the name of sound property rights. Other criticisms of IP are confused, or not fundamental.
When writing about the commons, one is likely to stumble into some awfully strange bedfellows. The last place I expected to find an attack on the institution of intellectual property was the Ludwig von Mises Institute, a far-right libertarian think-tank. And yet, there it is, right on their site: “Ideas Are Free: The Case against Intellectual Property,” a lecture from the 2010 Annual Meeting of the Property and Freedom Society by Stephan Kinsella. What would make a free-market fundamentalist oppose any kind of right to property? [continue reading…]
The World Economic Forum’s Insight Report, “Global Risks 2013” (Eighth Edition) identifies “the current IP regime” as being a key factor in contributing to the problem of our increasing health risk:
Interestingly, respondents to the Global Risks Perception Survey connected antibiotic-resistant bacteria to failure of the international intellectual property regime. This global risk is defined in the survey as “the loss of the international intellectual property regime as an effective system for stimulating innovation and investment” – that is, going beyond the mechanisms of protecting IP to encompass the idea that the ultimate purpose of the IP system is to stimulate worthwhile innovation. The connection highlights a global market failure to incentivize front-end investment in antibiotic development through the promise of longer-term commercial reward, a failure which also applies to drugs to fight malaria and vaccines for pandemic influenza.
The report also addresses the failure of the IP regime to stimulate innovation:
Breakthroughs in antibiotic innovation will require pooling and sharing of knowledge among academia, private companies and government regulators.37 Companies and foundations like GlaxoSmithKline (GSK) and the Bill and Melinda Gates Foundation are pioneering an “open-lab” approach to research which refutes the idea that secrecy and patented monopolies are the bedrock of innovation. [p. 32]
GM foods’ effect on health is uncertain, but their effect on farmers, scientists, and the marketplace is clear. Some GM foods may be healthy, others not; every genetic modification is different. But every GM food becomes dangerous — not to health, but to society — when it can be patented. Right now, the driving force behind the development of new genetic crop modifications is the fact that they possess the potential to be enormously profitable
As the article points out, the leading player here, Monsanto, has built its empire on this fact:
It was utility patent protection that opened the door for Monsanto’s present-day global seed and insecticide portfolio, including rights to its infamous “terminator” or “suicide seed” technology (which effectively sterilizes second-generation plants and makes it not only futile but a legal violation for farmers to gather seeds for next year’s crop). Monsanto has prosecuted farmers who discover GM corn or soy sprouts growing on their land after the wind carries seeds over from neighbors’ GM fields. The basis for such ridiculous lawsuits? Plant patent laws: These farmers are inadvertently violating Monsanto’s intellectual property rights.
I’ve mentioned the (generally excellent) Surprisingly Free podcast before. It’s hosted by Jerry Brito of George Mason, who is refreshingly skeptical of modern patent and copyright and interviews a variety of people with varying degrees of skepticism about the system. But Brito can’t bring himself to oppose patent and copyright root and branch. As I noted in Republicans More Radical than Libertarian Copyright Moderates, Brito says things like:
“If copyright is weak, then it will provide little incentive to create. … But if it is too strong, then it will limit the public’s ability to enjoy and build on creative works, which after all is the reason why we have copyright in the first place.”
When encountering IP maximalists like Stan Liebowitz (Stan Liebowitz on copyright and incentives, who argues for perpetual copyright terms), he is admirably skeptical, but even though he is exposed to more radical IP skeptics like Tom Bell (Tom Bell on copyright reform), again, he continues to argue that copyright is basically legitimate. In a recent Reason Hit & Run blog post, for example, he writes:
I don’t take a back seat to anyone in criticizing our out-of-control copyright system. Copyrights are too long and too strong, penalties for infringement are disproportionate, and federal enforcement has gotten out of hand. Yet those of us who seek to reform copyright should keep in mind that piracy is real, and copyright holders have a legitimate interest in enforcing their rights. [What’s Wrong With a Copyright Alert System?]
No, they do not have a legitimate interest in enforcing the positive monopoly privileges the state grants them, since the state has no right to grant such rights, as such rights are incompatible with legitimate private property rights.
Brito’s post concerns the new “six strikes and you’re out” system for copyright enforcement that ISPs have adopted (Top ISPs agree to become copyright cops)—the new “Copyright Alert System”. Brito characterizes this system as “the result of a private agreement between ISPs and the recording and movie industries”, even though it is an agreement among an industry of state-caused oligopolists and would never make sense absent state copyright law (Brito recognizes that “The agreement is nominally voluntary, although former New York Attorney General (now Governor) Andrew Cuomo strongly suggested to ISPs that they cooperate, and the Obama Administration’s IP czar Victoria Espinel helped broker the deal”).
Brito downplays concern about this system by saying it’s a “private” system that is better than “public enforcement”:
The EFF and others talk about surveillance and snooping, but in fact the monitoring in question takes place over publicly accessible networks. And while it’s true that the Copyright Alert System’s private arbitration flips the burden of proof, it’s not clear “public enforcement” is really such a great alternative.
Such nominally “private” enforcement might be less-bad than explicit state enforcement, but we get this dilemma only if we fail to consider a far better alternative—abolish copyright—which Brito rules out of court by saying that “copyright holders have a legitimate interest in enforcing their rights” and by opposing copyright abolition. If we insist that we keep copyright, we are left squabbling over who is should enforce this artificial state-granted monopoly privilege: state agencies, or private oligopolized crony capitalist corporations. [continue reading…]
Piracy gets a bad reputation from most of the content creators in the world, but not everyone agrees. In fact, some people have managed to make piracy, and a relaxed attitude toward copyright, work in their favor. Here are five such individuals who don’t pirate themselves (at least that we know about) but managed to turn this fact of internet life into good business.
Psy
Have you heard about this Gangam Style thing? The answer to that is almost certainly an emphatic “yes.” Gangam Style, from South Korean pop/rap star Psy has taken the internet by storm, and part of that success has come by taking a relaxed attitude toward copyright infringement.
There have been remixes, mashups,vre-postings, and of course, torrents of Gangam Style ever since it first caught on. Rather than go after people infringing on the content, Psy has leaned back and watched the advertising dollars roll in. The Gangam Style video on YouTube is now the most viewed ever. It currently has nearly 1 billion views. It is estimated that Psy will pull in about $8.1 million this year thanks to his internet popularity. Popularity he wouldn’t have had if no one had been able to share the song.
I had the pleasure of finally meeting in person law professor Tom Bell (one of the handful of IP attorneys to publicly oppose IP)1 at Libertopia in San Diego last September.2
In a recent interview by Jerry Brito on the excellent Surprisingly Free podcast (one of my favorites), Bell discusses his views on copyright and his chapter “Five Reforms for Copyright,” in the recent book Copyright Unbalanced: From Incentive to Excess, edited by Brito (which is, ironically, and unfortunately, not published under any kind of Creative Commons license nor made available free in PDF form or otherwise; Mercatus page). [Brito’s book is reviewed by Tom Palmer here.]
Tom W. Bell, professor of law at Chapman University and author of the concluding essay in Copyright Unbalanced, a new book edited by Surprisingly Free’s own Jerry Brito, discusses the ways in which copyright has evolved over time and why reform is vital.
Bell differentiates copyright from other types of property, arguing that conflating the two terms causes great confusion amongst laypeople and, over time, corrodes the value placed in tangible property rights. According to Bell, copyright is a privilege created by statute that doesn’t exist in a state of nature and is not recognized by common law.
As a special type of economic good, copyright must be treated differently than tangible property rights, according to Bell, who outlines five proposals for copyright reform.
While Bell is not opposed to copyright, he argues that copyright enforcement has gone too far, and lawmakers should structure policies to lead us towards a world in which we conceivably do without it.
In his excellent and concise chapter, Bell argues that copyright has changed so much since 1790 that it has deviated dramatically from the original idea for copyright in the Constitution, and now poses a grave threat to our freedom and liberties. Bell argues for a return to the Founders’ Copyright, among four other reforms:
Reinstate the Founders’ Copyright Act,
Withdraw the US from the Berne Convention,
Develop misuse doctrine into an escape from copyright,
Focus copyright policy on consumers’ costs, not producers’ profits, and
Regarding relabeling IP as “intellectual privilege,” see my post Intellectual Poverty, suggestion other possible terms that could be used to more accurately describe patent, copyright, and other IP laws.
The Founder’s Copyright would be much narrower than the current metastasized copyright system: it would offer an initial 14 year copyright term followed by another 14 year term, if applied for (compared to life of the author plus 70 years, now, and automatic copyright protection); no criminal sanctions; only maps, charts, and books covered, but not movies, photographs, paintings, sculptures, plays, music, architectural works, boat hull designs, and software; only exact, literal reproduction is covered, not quotations of a portion of the work, not derivative works (like sequels to a novel). This would be a radical improvement in copyright and would probably get rid of 95% or more of its current mischief.
The Hayekian Knowledge Problem and the Copyright Term
One other thing worth mentioning—in this interview Bell and Brito talk about the (Hayekian) “knowledge problem” being one reason it’s difficult to know what optimum copyright term to set (Brito and Manne make similar observations in another podcast episode; see Geoff Manne on copyright). And in the introductory chapter to Copyright Unbalanced, Brito writes (my bolding added):
You should be skeptical of Congress’s ability to develop a rational policy given the knowledge problem copyright presents and the public choice pressures at work. [p. 7, Kindle Edition]
… The fact that copyright does not emerge spontaneously does not mean it is illegitimate, or even unwise. What it does mean is that we should be cautious about how we create such a property right and how we define that right.
As F. A. Hayek showed, created orders are handicapped by the limited knowledge of their planners. This is in contrast to emergent orders, like customary or common law, which evolve slowly through trial and error. Such bottom-up processes are the product of human action, but not human design. As a result they incorporate dispersed knowledge and tend to match economic efficiency.
Copyright is a created order. Not only did it not emerge spontaneously, it is in fact a tool to create scarcity through state action. But why would we want to introduce scarcity where there is none? And why would we want to limit use where there is no conflict? [p. 11]
Good question. And, in a section entitled COPYRIGHT’S KNOWLEDGE PROBLEM:
The knowledge problem inherent in legislatively created rights is one reason why a delicate balance is difficult to reach. Not only are the contours of copyright centrally planned, but as Richard Epstein has noted, “There are in fact no ‘natural’ boundaries here, similar to the metes and bounds of land” to guide policy makers.
Conservatives and libertarians tend to easily recognize the knowledge problems in other government programs. For example, consider subsidies for renewable energy, which are also arguably meant to promote the production of a public good.
How does Congress know that the market is not already providing the right amount of investment in renewable energy? Without a government subsidy, there would still be investment in renewable energy technologies. By creating a subsidy, Congress is saying it doesn’t think it’s enough, but it has no way of truly knowing that.
Putting aside how Congress can know that there should be more investment in renewable energy, the other question is, how much investment is optimal? Without a market process to guide such investment, Congress can’t know how much is enough. So when Congress offers a certain amount of subsidy, it’s guessing. It’s likely offering too little or too much, with each error introducing its own inefficiencies.
The same challenges exist for copyright. Without copyright, there would still be songs written and movies made. Congress just thinks there wouldn’t be enough. So, it offers a subsidy in the form of copyright protection to incentivize more creative output. The same questions we asked about renewable energy present themselves: How does Congress know we wouldn’t have “enough” creative works without copyright? And assuming it knows that, how does it know the right amount of incentive to offer?
The first Copyright Act, which the Framers legislated, was limited to maps, charts, and books, which meant that other kinds of expressive works, such as songs and plays, were not protected. The Framers must have thought they would get enough such works without a subsidy. Were they wrong? Today songs and plays are protected, but fashion designs are not. Do we have the right balance now? How do we know?
The first Copyright Act also set a copyright term of 14 years renewable for 14 more, and required authors to register their works before receiving protection. Was 14 years enough, or too little? Today the copyright term is life of the author plus 70 years. Is that too much, or not enough? How do we know?
Also, requiring registration and renewal meant that only those authors who sought a subsidy got one. Only 5 percent of books published at the time were registered for copyright, and a small minority of their authors sought renewal, making the subsidy modest and somewhat self-regulating.
Today there is no requirement for registration or renewal, and anything you write is automatically protected whether you want it to be or not. Does such a massive trade of access for incentive get us closer to striking the delicate balance? How do we know?
This is not to say that because the ideal contours of copyright are unknowable, we should therefore have no copyright. After all, we also don’t know that zero is the right amount of copyright. However, understanding that there is a knowledge problem in copyright is useful. It tells us that while Congress may inevitably have to make an educated guess when it designs copyright, it should be humble and not take lightly the possibility that it will strike the wrong balance and introduce serious inefficiency. [pp. 13-15; endnotes omitted]
According to Hayek, there is dispersed knowledge in society that is difficult for any central planner to gather (or keep up with as it dynamically changes), and difficult even for the individual actors who possess it to articulate in an objective way, since it is “tacit.” Yet people’s dispersed knowledge affects how they buy and sell, and thus gets “reflected” in the overall price structure of the economy. Even this conception of prices “conveying” or “encoding” knowledge is problematic, in my view (as mentioned in the two linked pieces), but at most, it means that individual knowledge of relative resource scarcity is reflected in prices. This is because the knowledge of individuals, whether tacit or otherwise, that affects the prices they form, is these individuals’ knowledge (or forecasts or opinions) about the demand for, usefulness of, and supply and availability of scarce resources. That is, according to Hayek, the free market economy and its price system provides a way to help economize in the face of scarcity; it helps allocate scarce resources more efficiently, by means of a price system embodying or reflecting or transmitting various knowledge individual actors have about relative scarcities of, and supply of and demand for, scarce resources.
The Misesian case against central economic planning is that in the absence of a free market price system, there is no way to calculate—no way for the entrepreneur to forecast and compare possible plans on terms of profit maximization, because resources are heterogenous and incomparable. The future is always uncertain, but entrepreneurs have no way of comparing contemplated projects in cardinal terms, without some common, numerical frame of reference. They cannot even determine after the fact whether a project was as successful or more successful than anticipated, or than alternative projects could have been, without some cardinal means of comparison. A free market price system permits such calculation because the entrepreneur can calculate in money terms and compare various possible projects and alternative uses of scarce resources and select the project expected (in his entrepreneurial judgment) to yield the greatest monetary profit. And he can use money prices to assess how a project has done (cost accounting). In this way, to the extent entrepreneurs are successful (profit), resources are allocated to their most valuable uses. The Hayekian case against central planning emphasizes the difficulty a central planning agency has in acquiring knowledge that is dispersed and tacit knowledge. But even here, the knowledge is knowledge of relative scarcities of resources, of the supply of and demand for these resources.
But is this the reason the legislature has difficulty knowing what the optimum copyright term (and scope, etc.) should be? No. There are, instead, several other, and far more fundamental, reasons legislators cannot be expected to get the “right” copyright term. First, there is the political process itself: entrenched interests like Disney, Hollywood, the music industry, and so on, push Congress to keep ratcheting up copyright scope and penalties and term, not because of any finding that it is optimum, but for political reasons (which Brito acknowledges, in referencing “the public choice pressures at work”; in observing that “humility and restraint are not qualities readily found in the modern Congress”; in observing that “The process by which the terms and scope of copyright are decided is a political one” prone to “rent-seeking”).
Second, in the case of allocation of scarce resources we know that each resource has an exclusive use and can only be used for use project A or B. If the resource is used for the “wrong” plan then there is waste. Thus, there is a need to have some system that permits optimum allocation of the resource. This is the function of a free market in which private property rights are respected and money is used for calculation. But the copyright monopoly is justified by its proponents as stimulating the production of creative works—essentially, patterns of information, knowledge—that have some “value” to society that is greater than the costs imposed on the economy by the copyright system. Information patterns are not scarce resources. It is difficult to imagine how the price system, even in the Hayekian conception, which is useful in helping allocate scarce resources to their most efficient uses by overcoming the knowledge problem faced by central planners, provides information about how much value a copyright monopoly generates and how much cost it imposes.
Tabarrok’s Innovation vs. patent strength curve
Third, the idea that legislators face a knowledge problem in knowing where the optimum is for copyright strength and term, relative to costs it imposes and benefits it allegedly generates, presupposes that there is an optimum. But there is no reason whatsoever to presuppose this. (See Tabarrok: Patent Policy on the Back of a Napkin.) In the analogous case of subsidies for renewable energy, Brito notes: “It’s likely offering too little or too much”, as if zero is the obviously wrong choice even here. Why? Zero is the right choice for both renewable energy subsidies and for the subsidy of copyright. In the case of renewable energy subsidies, at least the subsidies likely increase renewable energy R&D and technology, since money is poured into it. This still does not mean it’s worth it, since renewable energy tech is developed at the expense of other technology or projects that are now unaffordable since tax dollars were siphoned away to stimulate renewable energy. But in the copyright case, there is no reason to believe that there is more creative work on net stimulated because of the copyright system in the first place; there is certainly good reason to believe that the patent system decreases net innovation. At the very least, the copyright and patent systems lead to severe distortion of their respective fields: culture and creative works, innovation and technology (Destructive Creation; Leveraging IP).
Imagine a similar approach being taken to the prison sentences being imposed for marijuana use. The prohibitionist might say that zero penalty is “obviously” “too low,” but he might also admit that torture and the death penalty for possession of an ounce of pot is obviously “too high”; thus, there is some optimum “in between.” It might be difficult to know what this optimum penalty is: is it a $100 fine? A year in prison? Ten years in prison? And then the prohibitionist could say, “Well, because of the Hayekian knowledge problem, it’s hard to know what the optimal penalty should be. But we know it’s between zero (legalization) and the death penalty; given this; a seemingly-arbitrary 5 year prison sentence is “closer to optimal”, or “better,” than a zero penalty or capital punishment. But the reason you can’t find the “right” punishment is that there is no optimum; or, rather, the optimal punishment is zero. But even if we concede that there should be some finite (non-zero, non-“infinite,” i.e. capital punishment) penalty for marijuana possession, and even if we concede we cannot know what the optimal amount of punishment should be, it is not because of the knowledge problem. For how could the most efficient free market imaginable tell us the “right” or most efficient amount of punishment to impose? The free market is efficient in the sense that it permits the efficient allocation of scarce resources. It is this ideal situation that the “knowledge problem” faced by central planners is contrasted to. What has this to do with coming up with a punishment of people who are engaged in a victimless crime?
And it is similar in the case of copyright, since there is no reason to think that there is a curve with a peak. Brito writes: “we also don’t know that zero is the right amount of copyright”. Well what kind of argument is this? If you don’t have some kind of proof that some copyright does increase social welfare, then why have it at all? Utilitarians seem to admit copyright puts limits on speech and imposes various costs on individuals. They believe this cost is justified if it leads to net gains in cultural innovation. But they have no evidence that it does. Shouldn’t the burden of proof be on them to show that their utilitarian claims are true? Until they do, shouldn’t we refrain from imposing copyright on society? Just consider all the economic and societal interventions Congress could engage in if it could say “well, we are not sure this law is optimal or producing good results, but on the other hand, we don’t know that not having the law is optimal either”! How is this a justification for having a law and then trusting Congress to tweak it? If Brito is right that Congress cannot know what the optimal copyright term is, and cannot even know that zero is not the right term … why have copyright at all, even on utilitarian grounds?
Copyright Duration and the Mickey Mouse Curve
The truth is that, as in the case of drug prohibition, the “optimal” amount of copyright is zero. This is true on both moral and empirical grounds. Moral: since copyright infringes on property rights (see Intellectual Property Rights as Negative Servitudes); empirical, since there is no evidence that patent or copyright lead to any net increase in innovation or artistic creation at all, much less an increase that is greater than the costs of such a scheme (and it is undeniable that IP distorts innovation and the creative fields) (see The Overwhelming Empirical Case Against Patent and Copyright; also Legal Scholars: Thumbs Down on Patent and Copyright). If the “curve” is monotically downward sloping—meaning that the greater the copyright protection, the worse off we are both in rights terms and also in economic terms—then the reason legislators cannot find its optimum is not because of the knowledge problem that plagues central planners trying to efficiently allocate scarce resources, but because there is no peak to find. But they truth is they are not trying to find the optimum; they do not even care. They keep ratcheting copyright terms upwards, enhancing penalties, increasing copyright scope, pushing it onto other countries, at the behest of Big Content special interests. They do not pretend to have the faintest clue that there even is an optimum, much less that they know, or that anyone can know, what it is.
(Update: Mises himself, a utilitarian of sorts (more of a consequentialist, I think) in the field of political ethics, also had a few murky statements on IP, which I note in Mises on Intellectual Property. An Austrian economist friend observed to me that:
The … thing that struck me as I read [your post] was Mises’s view in Human Action (pp. 657-659). He, too, claims that there is no optimum with respect to the configuration of patents and copyrights, but that different configurations of IP render different patterns of resource use. Each pattern of resource use is optimal for a given configuration of IP. But there is no way to compare the pattern of resource use under one configuration with the resources use under a different configuration. This seems to be a generalizable principle for Mises, that the configuration of property rights lies outside the market’s economizing process of resource use and, in fact, is a requisite for it.
In other words, the problem that plagues central economic planning, whether it’s characterized as Mises’s calculation problem or as Hayek’s knowledge problems, and which do not pose a problem for a genuine free market order, is not the reason a legislature cannot determine whether or not to have copyright or what form it is to take.)
Finally: the fundamental reason it’s impossible to compute these things in the first place is the subjective and intersubjectively incomparable and ordinal, not cardinal, nature of value. Not to mention the problem with counterfactuals and fact that there are many unseen, undeterminable costs to any such regulatory scheme.
Utilitarian scholars who argue the copyright system should be reformed because we are on the wrong side of the peak, but that there is a peak and that it’s possible for a corrupt legislature of a criminal state to find the optimum, or even to want to find it, are wrong. The optimum amount of copyright is the amount that is compatible with freedom and property rights: zero.
This is the opening of “Five Reforms for Copyright,” by law professor Tom Bell (one of the handful of IP attorneys to publicly oppose IP),1 his chapter in the recent book Copyright Unbalanced: From Incentive to Excess:
ON NOVEMBER 28, 2009, police arrested a 22-year-old Chicago woman named Samantha Tumpach, jailed her for two nights, and charged her with “criminal use of a motion picture exhibition”—a felony offense punishable with up to three years in prison. Her crime? She had captured two brief clips of The Twilight Saga: New Moon while recording her family’s surprise birthday celebration for her sister, who had come to the theater to watch the film.2 Tumpach copied under four minutes of the movie in total and obviously had no intention of making a bootleg for resale. “You can hear me talking the whole time,” she explained.3 Officials eventually dropped the charges, but the damage had been done. Tumpach brought suit for malicious prosecution, intentional infliction of emotional distress, negligence, and defamation.4 Her complaint did not, however, name the ultimate cause of her distress: a copyright regime that has grown too big and too powerful.
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