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Respecting Intellectual Property
by Bill St. Clair
[email protected]

Special to L. Neil Smith's The Libertarian Enterprise

Libertarians seem to be of two minds on Intellectual Property (IP). Many authors I know, e.g. Claire Wolfe, L. Neil Smith, & Scott Bieser, firmly believe in it. Many respectable anarchists, led it seems primarily by N. Stephan Kinsella, do not. Mr. Kinsella has written a short book, Against Intellectual Property, which is available as a free download at mises.org/books/against.pdf or on dead trees (for $6), also at mises.org. L. Neil Smith published a series of articles supporting IP in The Libertarian Enterprise: Neil, Richard Bartucci, Cathy L.Z. Smith (Neil's wife), Cathy.

As a practical matter, I don't find Kinsella's and (Neil) Smith's arguments to be all that different. Smith argues that he creates what he writes, from his mind and his effort, hence he should be able to control it. Kinsella says that ideas are not scarce, hence should be unownable, yet he acknowledges that they can be protected by contract, if those who have explicitly agreed to the contract are the only ones controlled by it (no "social contract" here). Smith states that he doesn't intend to defend his intellectual property by using the power of the state to assault and kidnap copyright violators. But he doesn't go into the details of how he will enforce it. I have read many times that intellectual property requires state enforcement. My disagreement with that is the reason I'm writing this essay.

First off, I want to be clear that my support of intellectual property in no way involves the state. I no not believe in prison. I created NoMoreCages.org, dedicated to eliminating the concept of prison. "Caging humans is inhuman. Stop it." I consider arrest to be newspeak for kidnapping. But I support Neil's assertion that creators own their work, and Kinsella's argument that only explicit contract can protect it.

The core of my argument is that enforcement is not the issue here. The issue is respect. If an author or inventor spends his precious time creating a story or a tool or toy that enhances my life, my respect and gratitude to him for doing so will cause me to naturally respect his wishes for compensation for his work. If I wish an author/inventor to be able to create more stories/inventions, I will want to pay her to enable that. Respecting a creator will also cause me to naturally disrespect someone who copies her work and attempts to pass it off as his own.

But this is copyright with no teeth. It's patent with no enforcement. Nonsense. We who believe a stateless world will be a better world are already proposing a reality where your reputation is your most valuable asset. Without a good reputation, insurance companies won't back you, you become an outlaw, and if someone decides to rob you, or shoot you, you will have little but your own gun and ingenuity to protect you. So copy a book, or a computer program, or the design for a better mousetrap, when the creator of those has not granted you license, and people who respect the rights of creators will shun you, and you could be in much worse trouble than being kidnapped and put in a cage, as the state will do to you now.

So how will copyright and patent work in the stateless new world? As usual with arguments about agorist society, I don't know. The solutions will be as many and varied as there are people to create them. But here's one likely scenario. The click-through EULA's (End User License Agreements) that we all routinely ignore now, will be backed by digital signatures, proof that you agreed to them. Give away that copy of The Probability Broach, and Neil will have proof that you agreed not to, and most arbitration and mediation services will support his side of that very real contract. Make him whole or suffer docking of your insurability rating. Enough of those, and you're as good as hanged.

Of course, open source will still exist. In both the copyleft viral form and the variety of Creative Commons licenses. I distribute most of the software I write (that doesn't belong to someone who paid me to write it) with the Apache License. You may use it and change it for any purpose, as long as you give me credit. In the stateless new world, Cory Doctorow will continue to provide free copies of his novels, and the Ludwig von Mises Institute will continue to provide free PDF downloads of their books, if you have the patience to find them. But Neil and Claire and Scott will be able to enforce their copyrights, better than they can today. And I will continue to respect their desires about the copying of their writing. I hope you do too.

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