The Anti-Libertarian Case for Copyright Maximalism

by on September 27, 2007 · 6 comments

Here’s an essay that (based on the abstract, at least, I haven’t had a chance to read the whole paper) perfectly crystalizes the anti-libertarian premises at the heart of the copyright maximalist position:

The adaptation to the Internet economy of intellectual property law in general, and copyright law in particular, is at the center of a profound power struggle for governance that places democratically chosen legal rules against technologist-defined network rules. This essay argues that many of the technological challenges to intellectual property rights such as peer-to-peer software are a movement against democratically chosen intellectual property rules. These challenges reflect a basic defiance of the Rule of Law. In making this argument, the essay first maintains that intellectual property rights have an important public function in democracy marking political, economic and social boundaries. Next, the essay shows that the public law, as enacted by democratic government, has re-allocated intellectual property rights to adapt to the information economy. While many aspects of the new allocation of rights have been controversial such as the scope of copyright’s anti-circumvention provisions, these decisions nevertheless emanate from duly constituted public authorities. The essay then analyzes the rejection of those rules by technologists and their fight to take control of rule-making. In essence, the technical community seeks to replace the state’s decision on public intellectual property law with the community’s own private preferences in subversion of democratic choices. The essay concludes with the normative prediction that public law prevails over network rule-making.

The (mis)use of the term “rule of law” here is telling. The American founders understood the phrase to refer to the idea that government officials may use the coercive apparatus of the state only in accordance with general laws that apply equally to all citizens. The founders would be appalled at the way many people seem to use it today, to express the idea that citizens have a duty to obey Congressional edicts, no matter how vague or arbitrary they might be.

Nor would any libertarian be comfortable with the notion that a “re-allocation” of peoples’ rights was justified merely because such an allocation “emanates from duly constituted public authorities.” Libertarians believe that rights exist prior to and independently of government edict. One of my examples of this is in Hernando de Soto’s The Mystery of Capital which includes a lengthy discussion of the origins of American property law. The American Congress tried repeatedly to impose top-down property rights systems on frontier territories. These efforts were resisted by pioneer squatters, who were not impressed by the fact that their edicts had “emanated from duly constituted public authorities.” Instead, the squatters came up with their own indigenous schemes for establishing their own property rights and recognizing their neighbors’. Eventually, after repeated efforts by American troops to drive squatters off land that (according to the official property system) belonged to someone else, Congress was forced to give up its efforts to “re-allocate” property rights, and instead recognized and formalized peoples’ existing property claims.

In a sense, it’s absolutely true that “the technical community seeks to replace the state’s decision on public intellectual property law with the community’s own private preferences in subversion of democratic choices.” But technologists are not “fighting to take control of rule-making” in the sense of imposing a different set of copyright restrictions on people. Rather, they’re fighting for the right to be left alone, free of meddling from a distant and incompetent federal government. Most geek activists simply want meddlesome laws like the DMCA repealed, leaving people free to do as they please with their lawfully acquired property.

Rarely has the case for copyright maximalism been put in such starkly anti-libertarian terms.

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