Are Young Libertarians Anti-IP?

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.

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