Are Young Libertarians Anti-IP?

by on February 2, 2006 · 24 comments

James DeLong laments young libertarians’ anti-IP tendencies, quoting my former colleague Adam Theirer:

Almost every young libertarian I come in contact with these days is equally opposed not just to the sort of new copyright protections that the content providers seek, but even to traditional copyright laws and rules that pre-date the 76 Act. And not all of these people are wacko libertarian-anarchist types. Many respected young libertarian minds are turning against copyright. I don’t believe that the best strategy is to ignore them. You guys should engage them in debate and defend your views before this extreme anti-IP position becomes more mainstream.

Since I might be one of the young libertarians he’s referring to, I thought I’d briefly comment on this. I agree with Adam that young libertarians tend to be more skeptical of intellectual property law than older ones, and I appreciate his urging his colleagues to engage our arguments. However, I respectfully disagree with the contention that most of us are “equally opposed” to all intellectual property laws. To the contrary, most of the young libertarian professionals I know are supporters of intellectual property, but are critical of the way that the powers of the copyright industry have been expanded in recent years. I made such a critique a few months ago.

To make sure this wasn’t just me, I conducted a quick poll on a mailing list I’m on, which is dominated by libertarian professionals under 35. Of the nine who responded, seven identified themselves with this school of thought, whereas only 2 identified themselves as favoring the abolition of intellectual property. (None of them expressed support for the status quo or for further strengthening) I’m not going to claim that my friends are representative of young libertarians generally, but clearly there are a lot of us who aren’t IP anarchists.

So why are we critical of the content industry? DeLong seems to think it’s because of our unsophisticated view of property rights. Apparently, we’re fixated on the notion that property has to be a physical object, and so we can’t wrap our brains around the complexities of intangible property. I’ll just say I don’t think that’s right. I think every one of the people who responded to my little poll would enthusiastically endorse strong protections of other “intangible” rights, such as contract enforcement.

So it doesn’t appaer to me that DeLong took Adam’s suggestion that he engage his critics very seriously. He’s very good at taking potshots at the anti-IP fringe, but I’ve hardly ever seen him seriously engage his mainstream opponents. Their goal isn’t to abolish intellectual property, but to re-assert the principles that grounded America’s intellectual property system for the first 200 years of our nation’s existence.

On the off chance that Mr. DeLong is unfamiliar with this critique, allow me to pose four questions that could serve as a useful starting point for discussion. They’re about my pet issue, the Digital Millenium Copyright Act, which I think is at the center of a lot of copyright-related disputes. They’re questions that, despite the DeLong’s voluminous writings on high-tech copyright in general and the DMCA in particular, I’ve never seen him address directly:

  • Vigorous competition is central to the libertarian vision of a free economy. The DMCA gives companies like Apple and Microsoft the legal power to decide whose devices may interoperate with its products and what features they may have. This appears to be leading to a balkanized media world in which consumers who purchase content on one platform (say, Apple’s iTunes) cannot use that content on another platform (say, a Sony MP3 player). Does this trend concern you?
  • In recent decades, a great deal of progress has been thanks to hobbyists, tinkerers, and small startups who invent new technologies in their garages or in Universities before they turned their ideas into profitable businesses. These businesses (especially more recent ones like Google) depended crucially on the existence of open standards, which allowed them to interoperate easily with estabished platforms and add value to existing products or services. Yet in a DRMed world, companies need permission to interoperate with others’ products, and the process for getting permission is often beyond the reach of an individual or small startup. Are you worried that such obstacles will stifle creativity by hobbyists and create a barrier to entry for new startups?
  • What is your opinion of the “darknet” critique of DRM technology? So far, it doesn’t appear that DRM has had much impact on piracy, because most people who want illegal content get it by downloading already-cracked files froa P2P network, not by cracking the DRM themselves. Given that there’s no such thing as uncrackable DRM, there will always be someone who figures out how to crack a DRM scheme, and that someone can upload the cracked version to the Internet for everyone to enjoy. So does it make any sense to give legal protections to a technology that doesn’t perform as advertised?
  • Many DMCA supporters have asserted that without the protections of DRM, the copyright industries would face financial ruin as consumers pirated content rather than buying it. This argument sounds suspiciously like one that Jack Valenti made back in 1982 while seeking to outlaw the VCR. Was Valenti wrong then? If so, why is 2006 different than 1982?

If Mr. DeLong is genuinely interested in convincing young tech-savvy libertarians of the correctness of his views on intellectual property, these questions might be a good place to start.

  • naiserie

    I’d place myself more in the “wacko anarchist” camp (that’s some “engaging” rhetoric); and (after having just read it) am also clearly too stupid “to fully grasp the import of [his] book chapter on the topic”.

    Nevertheless, the ageist implication of his little rant (and apparent emailings), is easily turned on its head. There is a new economy. There are new technologies. He is too obstinate to deal with them (I refrain from fully flipping his bigotry).

    Want to solve piracy? Let me download Lost or the Daily Show for 25 cents as it airs, and play it on my ipod, computer, and burn to disc to watch on my DVD player (I’d go as high as $1, but I don’t think the advertising lost is worth much more per viewer–which would be an interesting study in itself).

    Honestly though, kudos, Tim, for making a slight effort to engage someone who doesn’t appear to be willing to listen in the least.

  • naiserie

    I’d place myself more in the “wacko anarchist” camp (that’s some “engaging” rhetoric); and (after having just read it) am also clearly too stupid “to fully grasp the import of [his] book chapter on the topic”.

    Nevertheless, the ageist implication of his little rant (and apparent emailings), is easily turned on its head. There is a new economy. There are new technologies. He is too obstinate to deal with them (I refrain from fully flipping his bigotry).

    Want to solve piracy? Let me download Lost or the Daily Show for 25 cents as it airs, and play it on my ipod, computer, and burn to disc to watch on my DVD player (I’d go as high as $1, but I don’t think the advertising lost is worth much more per viewer–which would be an interesting study in itself).

    Honestly though, kudos, Tim, for making a slight effort to engage someone who doesn’t appear to be willing to listen in the least.

  • David McElroy

    I’m certainly not an anarchist when it comes to IP, at least in part because I create artistic content for a living. But the balance between protecting the rights of creators and the rights of purchasers have swung dangerously in favor of the creators. A limited monopoly on new creations is supposed to give creators a reason to keep making new content, not to give them a perpetual license to own everything.

    Another issue is that current law (such as the DMCA) totally disregards technological realities. I’m 45, but maybe I’m more technically oriented than most people my age or older. Maybe younger people (and some of us who are older) understand that laws are not ever going to stop the technical ability to copy digital files. If the data is there, someone can break into it, assuming that the “lock” is such that consumer-level devices can get into it in the first place.

    The more people realize what the new IP laws are going to prevent them from doing (such as time shifting their TV viewing as they’ve done with VCRs when they try it with something like a broacast flag), they’re not going to put up with it. Laws such as this destroy any respect for laws, because they’re not worth respecting and they’re unenforcable.

    IP law in the digital age MUST change, even if older people (or less technically savvy people) don’t “get it” quite yet.

  • David McElroy

    I’m certainly not an anarchist when it comes to IP, at least in part because I create artistic content for a living. But the balance between protecting the rights of creators and the rights of purchasers have swung dangerously in favor of the creators. A limited monopoly on new creations is supposed to give creators a reason to keep making new content, not to give them a perpetual license to own everything.

    Another issue is that current law (such as the DMCA) totally disregards technological realities. I’m 45, but maybe I’m more technically oriented than most people my age or older. Maybe younger people (and some of us who are older) understand that laws are not ever going to stop the technical ability to copy digital files. If the data is there, someone can break into it, assuming that the “lock” is such that consumer-level devices can get into it in the first place.

    The more people realize what the new IP laws are going to prevent them from doing (such as time shifting their TV viewing as they’ve done with VCRs when they try it with something like a broacast flag), they’re not going to put up with it. Laws such as this destroy any respect for laws, because they’re not worth respecting and they’re unenforcable.

    IP law in the digital age MUST change, even if older people (or less technically savvy people) don’t “get it” quite yet.

  • anonymous

    Tim, in a December 2005 post you credited DeLong and the PFF for filing an amicus brief in favor of KSR in the patent obviousness case that is on cert to SCOTUS. I have read the brief and the PFF news release announcing the brief. Call me cynical, but I read it as DeLong adopting KSR’s view as a small concession he is willing to make in order to deflate future criticism against the current maximalist IP regime. See p. 13-14 of the amicus brief and the news release for where I get this sense.

    I consider myself a libertarian-leaning conservative and I think that IP in general is a good idea. But I believe that the current maximalist trend is going way too far and takes away consumer rights. So I guess I’m with the majority of the young libertarian professionals in the mailing list Tim polled. It’s too bad that there aren’t more center-right voices for balanced IP and that the IP debate in the center-right is dominated by maximalists like DeLong. Currently the balanced IP camp, at least as it seems to me, is dominated by the center-left. Consider many of the well-known law professors (e.g., Lessig et al.) and the interest groups (e.g., EFF, Public Knowledge, etc.) in the balanced IP camp . As far as I know, none of them would qualify as conservative. This leads to, I think: 1) an inability to further build a broad balanced IP coalition, because there is an inability to make arguments for balanced IP that will appeal to conseratives, and 2) inability to make much traction in a Republican Congress with regard to pro-consumer legislation.

    Another problem is the property rhetoric that has been so effective in swinging the IP debate in the maximalist direction. People like DeLong seem to fall too easily for the property analogy and fail to see that 1) intellectual creations is just plainly different from tangible property or even certain intangible property and therefore does not deserve moral (and maybe the legal) imprimatur the “property” moniker provides, and 2) even if intellectual creations is property and property rights are generally good in the abstract, more property rights is not necessarily better. Maybe, the young libertarians that DeLong laments are anti-IP/pro-balanced-IP precisely because they can see through the charade of the IP as property rhetoric.

  • anonymous

    Tim, in a December 2005 post you credited DeLong and the PFF for filing an amicus brief in favor of KSR in the patent obviousness case that is on cert to SCOTUS. I have read the brief and the PFF news release announcing the brief. Call me cynical, but I read it as DeLong adopting KSR’s view as a small concession he is willing to make in order to deflate future criticism against the current maximalist IP regime. See p. 13-14 of the amicus brief and the news release for where I get this sense.

    I consider myself a libertarian-leaning conservative and I think that IP in general is a good idea. But I believe that the current maximalist trend is going way too far and takes away consumer rights. So I guess I’m with the majority of the young libertarian professionals in the mailing list Tim polled. It’s too bad that there aren’t more center-right voices for balanced IP and that the IP debate in the center-right is dominated by maximalists like DeLong. Currently the balanced IP camp, at least as it seems to me, is dominated by the center-left. Consider many of the well-known law professors (e.g., Lessig et al.) and the interest groups (e.g., EFF, Public Knowledge, etc.) in the balanced IP camp . As far as I know, none of them would qualify as conservative. This leads to, I think: 1) an inability to further build a broad balanced IP coalition, because there is an inability to make arguments for balanced IP that will appeal to conseratives, and 2) inability to make much traction in a Republican Congress with regard to pro-consumer legislation.

    Another problem is the property rhetoric that has been so effective in swinging the IP debate in the maximalist direction. People like DeLong seem to fall too easily for the property analogy and fail to see that 1) intellectual creations is just plainly different from tangible property or even certain intangible property and therefore does not deserve moral (and maybe the legal) imprimatur the “property” moniker provides, and 2) even if intellectual creations is property and property rights are generally good in the abstract, more property rights is not necessarily better. Maybe, the young libertarians that DeLong laments are anti-IP/pro-balanced-IP precisely because they can see through the charade of the IP as property rhetoric.

  • http://www.techdirt.com/ Mike Masnick

    Ha! Jim DeLong emailed me last year concerning something on Techdirt, and following that email I sent him back a note questioning his views on IP in great detail.

    His response? He ignored it.

    I guess that’s how he “engages” in debate.

  • http://www.techdirt.com/ Mike Masnick

    Ha! Jim DeLong emailed me last year concerning something on Techdirt, and following that email I sent him back a note questioning his views on IP in great detail.

    His response? He ignored it.

    I guess that’s how he “engages” in debate.

  • http://precision-blogging.blogspot.com Precision Blogger

    Please note that concepts of copyright and IP may be minor historical diversions from the norm. They have mostly affected Western Civilization for the last 200 years. In most societies (including our own before 1850), it was absolutely routine to base art and inventions freely on other people’s work.

    It makes good sense to re-examine these concepts; we don’t need them any more.

    - The Precision Blogger

    http://precision-blogging.blogspot.com

  • http://precision-blogging.blogspot.com Precision Blogger

    Please note that concepts of copyright and IP may be minor historical diversions from the norm. They have mostly affected Western Civilization for the last 200 years. In most societies (including our own before 1850), it was absolutely routine to base art and inventions freely on other people’s work.

    It makes good sense to re-examine these concepts; we don’t need them any more.

    - The Precision Blogger
    http://precision-blogging.blogspot.com

  • http://righttocreate.blogspot.com/ Jackson Lenford

    It isn’t just DRM and the creeping extension of copyright that is the focus of this debate (although that topic is central).

    Patent monopolies are causing challenges to many innovators, startups, and of course, large established corporations. The “IP debate” isn’t complete until we talk about all the abuses that go on here, as well as stakeholders’ push to extend their idea monopolies in the same way that they wish to extend their content monopolies in the copyright world.

    For example, it would do us little good to legalize circumvention of content restriction devices (or repeal the DMCA in its entirety) if the content industry earns patents on the processes and methods of circumventing them. Effectively, the same control would be exerted over production of such circumvention software or products: it would be illegal to create, distribute, or offer for sale tools that circumvent without the explicit permission of the content industry.

  • http://righttocreate.blogspot.com/ Jackson Lenford

    It isn’t just DRM and the creeping extension of copyright that is the focus of this debate (although that topic is central).

    Patent monopolies are causing challenges to many innovators, startups, and of course, large established corporations. The “IP debate” isn’t complete until we talk about all the abuses that go on here, as well as stakeholders’ push to extend their idea monopolies in the same way that they wish to extend their content monopolies in the copyright world.

    For example, it would do us little good to legalize circumvention of content restriction devices (or repeal the DMCA in its entirety) if the content industry earns patents on the processes and methods of circumventing them. Effectively, the same control would be exerted over production of such circumvention software or products: it would be illegal to create, distribute, or offer for sale tools that circumvent without the explicit permission of the content industry.

  • http://www.blindmindseye.com MikeT

    I responded to that post of his, but my trackbacks are blocked, presumably because I have been known to dig back a little at their potshots at the “anti-IP fringe.” Here’s the response that couldn’t be tracked back to his blog.

    The problem I have with IPCentral is that they don’t know what the hell they’re talking about on most technical issues. Solveig Singleton actually responded to a post of mine a while back where I called her bluff on how to make DRM simultaneously interoperable and competitive. You can’t do it. Either you build it into your operating system’s I/O system or you make it a pluggable module that works like a kernel module/plugin (for microkernel systems). That’s of course assuming it’s not built into the application.

    I’m a software developer, not a lawyer, but I do know some things about property rights in principle. Their love of DRM is not compatible with basic notions of private property rights and I personally shudder at the thought of a world in which copyright is king. It’s a world in which the customer is a sharecropper with no aspirations of becoming a yeoman farmer when it comes to his/her purchased goods.

    Btw, anyone ever notice that since copyright law become so prominent, there have been no Mozarts, Beethovens, etc.? Where is the real Shakespeare of the 20th century? Do we have to wait another full century to get a shot of this total copyright-protected music world creating and supporting such genius?

  • http://www.blindmindseye.com MikeT

    I responded to that post of his, but my trackbacks are blocked, presumably because I have been known to dig back a little at their potshots at the “anti-IP fringe.” Here’s the response that couldn’t be tracked back to his blog.

    The problem I have with IPCentral is that they don’t know what the hell they’re talking about on most technical issues. Solveig Singleton actually responded to a post of mine a while back where I called her bluff on how to make DRM simultaneously interoperable and competitive. You can’t do it. Either you build it into your operating system’s I/O system or you make it a pluggable module that works like a kernel module/plugin (for microkernel systems). That’s of course assuming it’s not built into the application.

    I’m a software developer, not a lawyer, but I do know some things about property rights in principle. Their love of DRM is not compatible with basic notions of private property rights and I personally shudder at the thought of a world in which copyright is king. It’s a world in which the customer is a sharecropper with no aspirations of becoming a yeoman farmer when it comes to his/her purchased goods.

    Btw, anyone ever notice that since copyright law become so prominent, there have been no Mozarts, Beethovens, etc.? Where is the real Shakespeare of the 20th century? Do we have to wait another full century to get a shot of this total copyright-protected music world creating and supporting such genius?

  • Solveig Singleton

    Re Tim: As I understand the exchange between Jim and Adam, they were talking about anti-IP young libertarians (i.e. those who don’t believe in IP at all), as opposed to those who are concerned about the way in which it has gone in recent years. That is also the focus of my blog series on IP & Liberty.

    I’m aware that the mainstream critiques of IP are along different lines. But frankly I either agree with a lot of those critiques or think they relate only to fairly marginal issues, so I’m not particularly interested in refuting them. The main place where I differ with most critics is in thinking that they do not take the underlying problem seriously enough. Example, there are certainly a lot of problems with the DMCA–but, well, ALTERNATIVES, anyone? Having the only boundaries in the digital content world being legal ones (as opposed to technological) does not strike me as being optimal.

    In response to the comments, some of which are hilarious:

    I can assure that our KSR brief was not some cynical ploy to deflate any and all criticism of the patent system; we’re concerned about patent quality. Really.

    Mike: If your trackbacks didn’t show up, it was, well, who knows, but certainly not a policy response. Trust me, we have NO IDEA who you are.

    Re my technical expertise or lack thereof: Free market policy generally can accomodate a wide spectrum of technological developments; indeed, in large part, that’s the freakin’ point. Nothing in my thinking about DRM depends on the *same* DRM being both interoperable and competitive in the sense you mention. Competition between different DRM systems and systems with no DRM is perfectly fine with me.

    And I’m really sorry you are not enjoying the century’s creative arts. But I don’t think that has much to do with copyright policy, actually.

  • Solveig Singleton

    Re Tim: As I understand the exchange between Jim and Adam, they were talking about anti-IP young libertarians (i.e. those who don’t believe in IP at all), as opposed to those who are concerned about the way in which it has gone in recent years. That is also the focus of my blog series on IP & Liberty.

    I’m aware that the mainstream critiques of IP are along different lines. But frankly I either agree with a lot of those critiques or think they relate only to fairly marginal issues, so I’m not particularly interested in refuting them. The main place where I differ with most critics is in thinking that they do not take the underlying problem seriously enough. Example, there are certainly a lot of problems with the DMCA–but, well, ALTERNATIVES, anyone? Having the only boundaries in the digital content world being legal ones (as opposed to technological) does not strike me as being optimal.

    In response to the comments, some of which are hilarious:

    I can assure that our KSR brief was not some cynical ploy to deflate any and all criticism of the patent system; we’re concerned about patent quality. Really.

    Mike: If your trackbacks didn’t show up, it was, well, who knows, but certainly not a policy response. Trust me, we have NO IDEA who you are.

    Re my technical expertise or lack thereof: Free market policy generally can accomodate a wide spectrum of technological developments; indeed, in large part, that’s the freakin’ point. Nothing in my thinking about DRM depends on the *same* DRM being both interoperable and competitive in the sense you mention. Competition between different DRM systems and systems with no DRM is perfectly fine with me.

    And I’m really sorry you are not enjoying the century’s creative arts. But I don’t think that has much to do with copyright policy, actually.

  • http://www.techliberation.com/ Tim

    I can only say that I don’t think the problems created by the DMCA are “fairly marginal,” something I tried to draw out with my four questions above. I don’t think the balkanization of media technologies and the erection of barriers to entry for new technologies are marginal concerns.

    I also hope you’ll read my forthcoming Cato Policy Analysis, where I lay out the problems caused by the DMCA in greater detail.

  • http://www.techliberation.com/ Tim

    I can only say that I don’t think the problems created by the DMCA are “fairly marginal,” something I tried to draw out with my four questions above. I don’t think the balkanization of media technologies and the erection of barriers to entry for new technologies are marginal concerns.

    I also hope you’ll read my forthcoming Cato Policy Analysis, where I lay out the problems caused by the DMCA in greater detail.

  • Anon

    I am just passing and haven’t read your article in depth. However, the main problem with IP is that it conditions markets in such a way that monopolies are natural consequences – which is why IP should be treated with great care, certainly more care than it is today.

    Brendan S

  • Anon

    I am just passing and haven’t read your article in depth. However, the main problem with IP is that it conditions markets in such a way that monopolies are natural consequences – which is why IP should be treated with great care, certainly more care than it is today.

    Brendan S

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