Butler Shaffer's
A Libertarian Critique of Intellectual Property is a tiny booklet. It measures only 4" x 6" in size and is only 58 pages long--this includes the index and a 9 page introduction by David Gordon. Yet, I found many observations throughout the book relative to his anti-IP position that are worthy of comment.
Shaffer begins the booklet by telling us that the libertarian perspective is
premised upon respect for private property and the rejection of coercion
I have no problem with this characterization by Shaffer.
But then Shaffer quickly takes an odd turn. He writes:
Are the origins of IP interests to be found in the informal process by which men and women accord to each other a respect for the inviolability of their lives- along with claims to external resources (e.g. land, food, water, etc.). Or are they to be established by formally enacted rules by political systems? In a world grounded in institutional structuring, it is often difficult to find people willing to consider the possibility that property interests could derive from any source other than an acknowledged authority[...] I do raise the question of whether, from a libertarian viewpoint, any philosophical defensible ownership claims could be created by political systems? [...] The question which I focus is this: in the same way that respect for individual property claims can arise informally among men and women, is there evidence for such claims to IP being so recognized?
Thus, it appears that Shaffer thinks he has struck his first blow against IP. But what difference should it make what the origins of IP are? The question that should be asked is "Can IP informally arise among men and women?"
Certainly, if person A has some information, let us call it a secret, and says to person B, "I will tell you this as long as you don't tell anyone else," and person B accepts the offer, then an informal IP agreement has been created. If I live in a private property society and have a formula that provides clues as to how a blog post should be written so that it is linked by the Drudge Report, and I agree to tell you the formula in exchange for $10,000 and your agreement that you will not reveal the formula to anyone else, I have entered into an informal IP contract. Note, I am not here discussing the ease or difficulty with which such a contract can be enforced, but merely whether it can be created informally, outside the political system. It should be clear that such contracts can be created. Thus, government IP laws have nothing to do with the concept of IP itself, anymore than government police are at the core of physical private property. Does Shaffer want to argue that because physical private property is largely protected by government police and government laws that the concept of private physical property is flawed?
Shaffer goes on to write:
[...] when the state-with its monopolistic powers-acts for the benefit of the few, all are legally bound by the rules whether they agree with them or not. If copyrights, patents or trademark protections are not recognized among free people-unless specifically contracted for between two parties-by what reasoning can the state create and enforce such interest upon persons who have not agreed to be so bound?
This is correct, but it is certainly not an argument against IP, but rather government involvement in IP.
He then writes, seeming to suggest another quandary for libertarian supporters of IP:
Nor can the inclusion of a copyright notice in a book be defended, under contract principles, as such provides no evidence that the buyer has agreed to respect the presumed property claim prior to his purchase.
To which, I reply, so what? What does this have to do with IP? It has to do with government involvement in IP. It is not difficult to see how a book could be sold in a private property society while maintaining the sanctity of contract. If company A publishes books, it can certainly contract with book retailers in a manner in which retailers agree not sell the publishers' books unless the retailers ensure that book buyers agree not to reproduce the books in any fashion. This could be accomplished by the retailer at the checkout counter where a book buyer would be required to simply sign a paper agreeing not to reproduce a given book, to be allowed to purchase the book.
Shaffer then attempts to justify his anti-IP position by referencing common law, where he seems to find a copyright law more amenable to his anti-IP position:
At the early common law-and until 1977 in America-a limited copyright principle existed . A person who had written a book or poem, placed it in her desk drawer, and it was later removed by another and published without her consent, maintained a copyright to her work. If however, the author had the work published-which meant, as the word implies, made "public"-she lost such copyright, the act of publication being treated as a abandonment of control over her claim of ownership.
But is common law a contract between two consenting parties, or simply another form of intrusion by outsiders on contracts? What does this have to do with IP in a libertarian society? I would argue, nothing.
Shaffer then makes a very odd utilitarian justification for his anti-IP position:
The notion that the anticipation of monopolistic rewards such as patents and copyrights is essential to the creative process, is negated by much of history. I am unaware of such copyrights having been issued to writers such as Aeschlyus, Homer, Shakespeare, Dante or Milton; or composers such as Beethoven, Bach, Mozart, Wagner or Tchaikovsky.
It is noteworthy that Shaffer only cites creative geniuses, who, indeed, may not have been motivated by money and required little in terms of capital to produce their creations.
Ludwig von Mises in
Socialism (p.168) reminds us:
The great creative genius who perpetuates himself in immortal works and deeds does not when working distinguish the pain from the pleasure. For such men creation is at once the greatest joy and the bitterest torment, an inner necessity. What they create has no value to them as product: they create for the sake of creation not the results.
Is Shaffer proposing, in opposition to Mises, that geniuses are not a special category and that the attitudes of most people towards money are the same as geniuses?
Further, what about research projects that take years and significant amounts of capital to produce a product? Is Shaffer suggesting that these projects would go on, if competitors could immediately reproduce the products, without the outlay in research capital, by just copying the fruits of another's labor and spent capital? Naming geniuses is a very weak reed from which to launch a utilitarian based attack on IP.
On another point re this paragraph, Shaffer fails to make a crucial distinction between copyrights and patents. He states that they are both monopolistic grants. This is not the case. As Murray Rothbard wrote in
Man, Economy and State, there are important differences between copyright and patent, whereby even at the government enforcement level copyright is not a monopolistic grant:
Patents[...] are grants of exclusively monopoly privilege by the State and are invasive of property rights on the market[...]
The crucial difference is that copyright is a logical attribute of property right on the free market, while patent is a monopoly invasion of that right.
Shaffer, then goes on to make another curious utilitarian argument against IP. He writes:
[T]he cross-fertilization of ideas, techniques and other influences, among communities of artists, have greatly enhanced the creative process. On the other hand when driven by the reward of patents, scientists and inventors are known to maintain secrecy in their laboratories and research lest a competitor gain insights that might advance their work.
But a secret would only continue until a research project has produced results and IP protection is enforce. IP would free a researcher to be less secretive of his product. Further, Shaffer implies that with IP cross-fertilization of ideas would stop because of IP protection. The logic does not appear to follow this claim. If much greater advances in a given area are the result of the cross-fertilization of ideas, why wouldn't cross-fertilization occur? If I can make $10,000 by working alone, but $1 million by working in collaboration, why wouldn't I collaborate, even if IP protection does not require me to so so? Indeed, even in the academic arena, there are many collaborative scientific papers that are published on a
daily basis, despite current copyright law.
Shaffer also hoists one of my favorite bizarre attacks on IP. He tells us:
Undoubtedly, the greatest invention in human history was language.[...]I suspect that, had any such [IP] restraints been available and enforced, we would never have realized the richness and vibrancy of the self-generated language we now enjoy.
This is simply absurd. Words are used to communicate. If I invent a word to describe water, say the word, spiggle, and attempt to charge people who want to use it, no one is going to use the word. Someone in the community will come up with another word for water and allow free use of it--to advance communication. I would like to see Shaffer copyright one word, any word, and then try to sell the use of the word.
Note: The only area where it would make sense to actively seek IP protection of a word is when it identifies a specific product, e.g.
Coca Cola (which in this case would be trademark IP), so that when we order this product we have a name for it that others making other products can't use. It this case, it would eliminate confusion. But the copyright of everyday words for common usage would never happen.
Shaffer then goes on to state a problem with government granting IP protection, but, again, this has nothing to do with IP in a private property society, though he fails to make clear the difference.
There are many other costs associated with IP that rarely get the attention in cost benefit analysis of the topic. One has to do with the fact that the patenting process, as with government regulation generally, is an expensive and time consuming task.
Yes, this is a problem with GOVERNMENT granted IP protection, but it has nothing to do with contracts between individuals in a private property society.
Shaffer concludes:
The pragmatic arguments offered herein are intended to reinforce my case against IP. The essence of my views is found in the title of this article, upon which I rest my case. Can one, consistent with a libertarian philosophy, respect any "property" interest that is both created and enforced by the state, a system defined by its monopoly on the use of violence? I regard the proposition as indefensible as would be the question of a libertarian defense of war.
Here once again, we see Shaffer jumbling government created IP law with IP that would develop in a private property society and wrongly dismissing the entire IP concept. What he has done, in parts of his booklet, is make a case against government involvement in IP, a view I concur with. However, he has made no solid case against private individual IP contracts and thus his booklet must be deemed a failure in making a libertarian case against IP.
