Friday, July 13, 2012

Intellectual Property: Adam Kokesh et al. vs. a Polyarchist Approach

            In a recent lecture which was posted on YouTube as “Dismantling Intellectual Property Myths (Adam Kokesh)”, media personality and former Marine Adam Kokesh – who  ran for the U.S. House from New Mexico in 2010 – defended his stance against intellectual property (hereafter referred to as “I.P.”), calling it an immoral “racket” and a “government scam…” which has no role “whatsoever in a free society”, and which is “holding us back in so many dangerous ways”.
In rejecting I.P., Kokesh takes a stance comparable to that of libertarians, classical liberals, and individualist anarchists such as Benjamin Tucker, Thomas Jefferson, Friedrich Hayek, Murray Rothbard, Samuel E. Konkin III, Jeffrey Tucker, Roderick Long, Wendy McElroy, Brad Spangler, Kevin Carson, and Stephan Kinsella.
            In answering a question on I.P. which was addressed to him, Kokesh began by acknowledging that there is a divide on the topic of I.P. among American libertarians. While libertarian-leaning political theorists such as Lysander Spooner, Ayn Rand, David Friedman, and J. Neil Schulman have expressed support for I.P., I believe that the debate between the latter group and the former group have created somewhat of a false dichotomy between the pro-I.P. and anti-I.P. crowds.

            In the lecture, Kokesh used many typical anti-I.P. arguments. In saying that I.P. stops “the free flow of ideas”, he echoed Stephan Kinsella, who had previously told Kokesh that I.P. imposes “restraints on the flow of information”, describing I.P. as – effectively – a “form of censorship”. Kokesh went on to say that I.P. is “based on owning ideas and sequestering them”.
            Kokesh also described I.P. as “directly at odds with real property rights”, saying that “you can’t have one and the other in co-existence at the same time as absolute principles; either you believe in property rights or you believe in intellectual property…” (this is the type of dichotomy which I earlier characterized as false). Stephan Kinsella also previously told Kokesh that I.P. is against “property rights”.
            Before continuing my criticism, I would like to qualify two things. First, in the context of the disproportionate government reaction to illegal file-sharing on the internet, Kokesh and Kinsella are correct in rejecting the status quo of copyright law and laws providing for censorship of the internet. Second, the two are also correct to reject I.P. in the context of the status quo of institutional government as we know it, but there will be more on that later.
            Kokesh and Kinsella characterize I.P. as a restraint on the free flow of ideas and information which conflicts with property rights. I would note that nowhere in Kokesh’s lecture or in his interview of Kinsella did either one of them define “property rights”, nor did they care to make any distinction between private property and personal property, in the vein of Mutualists such as Pierre-Joseph Proudhon. Before continuing my criticism of the anti-I.P. arguments made by Kokesh and Kinsella, I would like to explain the distinction between these two forms of property, and how I see intellectual property fitting in to this dichotomy.
              In the Mutualists’ view, “personal property” denotes physical, tangible property which is movable; capable of being possessed; and can be made available for access and use. “Private property” – on the other hand – usually denotes landed, immovable property, especially when such property exists at a volume which is difficult to justify given the number of people claiming to own it in proportion to the remainder of humanity and of their respective sets of needs and their possessed natural resources and means of production; when such property is unoccupied and thus cannot be readily defended by its purported owners without depending on the action of external actors; and when access to and use of such property is conditional upon the payment of rent by tenants and occupants, especially at an increasing price.
              Using the definition of personal property which I have just articulated, the types of goods protected by intellectual property rights certainly count as such, being that these goods – such as books, audio discs, and electronic data – are physical and tangible, movable, capable of being possessed, and capable of being made available for access and use.
              However, while personal property denotes the physical goods themselves, private property would seem to denote the right to exclusively possess and control the – to borrow a word from Shawn Wilbur – disposition of the physical property; that is, the enforced agreement and promise that an individual or a group of individuals will retain the power and ability to possess the property and control what happens to it and how it is used.
              But while the Mutualist conception of private property usually denotes immovable land as property, it perhaps more strongly connotespropriety” – that is, ownership – suggesting more of a construct than a physical good. Removing all references to land and physicality from the conception of “private property”, it is easy to see how intellectual property could be considered a form of private property.
               First, I.P. exists at a volume which is difficult to justify given the needs of others. Granted, nobody needs to have access to books and music and e-data in order to survive, but the communication of information – be it educational, recreational, or otherwise – increases our ability to learn about our surroundings (and, often, as a corollary, how to adapt to and survive in our surroundings), and enriches our intellectual and aesthetic sensibilities. Indeed – and aptly so – Kinsella characterizes I.P. as a form of censorship (perhaps in an even broader sense than that of modern internet censorship by government) which inhibits the freedom of speech and the freedom of expression. Kinsella also points out that it has been claimed that the average American would owe $4.5 billion per year if prosecuted for illegal file-sharing to the fullest extent of the law, which he would criticize as cruel and unusual punishment that would not pass 8th-Amendment constitutional muster.
               Second, I.P. cannot be readily defended by its claimed owners without depending on the action of external actors. Being that it would be very difficult for writers, musicians, and authors of electronic data to take it upon themselves to maximize the distribution of their work to their audience, they usually have to rely on professional distributors to do this on their behalf. Given the advent of the printing press and subsequent forms of mass media – most recently, file-sharing – it is just as difficult (if not more) for authors to take it upon themselves to ensure that no member of their audience share, reproduce, re-appropriate, and / or profit off of the original work, so they usually have to rely upon some external actor to uphold their claimed rights to control what happens to their work (who can credibly become such external actors and how these rights are asserted and licensed-out will be addressed later).
               The third attribute of private property which I articulated – that is, its use and accessibility being conditional upon the payment of rent by users, especially at an increasing price – does not seem to apply (at least not in any way that goes beyond fee-for-use systems whereby readers, listeners, and internet users pay for continued access to the material). I would argue that this is only an occasional attribute of private property; one which is neither necessary nor sufficient to make the pertinent good qualify as a piece of private property, but rather merely one which makes private property appear more unfair and egregious.
            In summary, I would describe intellectual property as “a system of ownership or propriety which aims to enforce agreements and promises to protect and defend one or more persons’ power and ability to exclusively possess – and to control the access to and use of – physical, tangible, and movable goods which are capable of being possessed, are capable of being made available for access and use, exist at a volume which is difficult to justify given the reasonable desires of others, and cannot be readily defended by their purported owners without depending on the action of external actors”.
            Of course, it would be unreasonable to expect that Kokesh and Kinsella would be so careful in defining “property rights” in the brief interview and lecture in which they participated, but I feel that the distinctions which I have made – as well as those which I have yet to make, especially with regard to governments’ role in all this – are well worth the time which is required to make precise.

            Rejecting the notion that “there’s no incentive to create if you’re not gonna be rewarded” which was hypothetically suggested by one of his audience members, Kokesh expressed an opinion that in the absence of intellectual property, there would remain an incentive to innovate. Kokesh says sarcastically, “it’s not in human nature to innovate at all”, and “without the violent government stopping the free flow of ideas, who would even want to generate new ideas?”.

            Kokesh rejected the prevailing response to intellectual property disputes of lawsuits as opposed to innovation, research and development, productivity, and “creating the next idea”, saying that I.P. “takes the focus away from the next idea and focuses… on the last idea, and prevents it from being shared or built on”. He suggested that in the absence of I.P., there would be a “different incentive system” – what he called the “tip jar model” – and pointed out that when people give away their creations for free, other artists can’t compete, effectively causing the decrease of products in the given market.
I would argue that although low prices benefit the consumer – and although a voluntary system in which consumers pay what they think is an appropriate price for goods is what society should strive towards – low prices do not necessarily benefit the creator and the distribution company. While Benjamin Tucker said, “a man who reproduces his writings by thousands and spreads them everywhere voluntarily abandons his right of privacy and those who read them” and “[y]ou want your invention to yourself… then keep it to yourself” – and while creators do occasionally spread their work for mass consumption without expectation of payment – most creators would appreciate recognition and compensation for their work, and some may go further to ensure compensation by seeking I.P.-type protections.

            Kokesh called I.P. “destructive to innovation”, especially in regards to the music industry, pointing out that it is not primarily musicians who lobby for the continued existence of I.P., but rather the representatives of the record labels. Although I agree, I would take issue with the fact that Kokesh did not take into account the desires of musicians who do have complete creative control over their art, and rights to their own intellectual property.

            Another issue which Kokesh briefly discussed was how long patents should exist, asking “should we still be paying royalties to the guy that invented the wheel?”. However, he did not suggest decreasing the term of patent (the time period for which patents should exist), and made no reference to the fact that most patents registered in the U.S. expire after twenty years or less, with extensions of ten years or less.
I feel that it was hyperbole for Kokesh to make the argument in reference to the wheel, as well as for Benjamin Tucker to make the argument that – had I.P. “been in force in the lifetime of James Watt [the Scottish developer of the steam engine] [it would] have made his direct heirs the owners of at least nine-tenths of the now existing wealth of the world”.  Had Watt lived in the United States – and been subject to the twenty-year patent term and a subsequent shorter extension – his patent would have expired before his death, and therefore could not have been sold or bequeathed to anyone in perpetuity.
Tucker also said that had I.P. “been in force in the lifetime of the inventor of the Roman alphabet, nearly all the highly civilized peoples of the earth would be to-day the virtual slaves of that inventor’s heirs… they would have remained in the state of semi-barbarism”. Not only does my earlier statement about patent terms apply to this example, but Tucker also makes the mistake of supposing that one sole person “invented” the alphabet; the alphabet is not an innovation with a single inventor, but rather something which exists solely for the purpose of communication between multiple persons, and which is continually developed over time.
Additionally, Tucker refers to development of the steam engine, and to an alphabet which exists in its current form due to continuous developments. From what I have seen and read of Tucker and Kokesh, they appear to pay little attention to this distinction. In fact, Kokesh’s proposed alternatives to lawsuits included “research and development”, so it would seem that he would be likely to support giving developers credit for their contribution to ideas.
Kokesh even – at one point in his lecture – said “this is not to say that you can’t have trade secrets… secret formulas”; this statement could be construed as an outright vindication of some system of intellectual property rights. While Tucker wrote that there should be no “property in ideas”, he and Kokesh also fail to mention that patent applications are rejected if it can be shown that they are simple observations or applications of physical laws, as opposed to genuine novelties of original innovation and development.
Although Murray Rothbard rejected patents, he supported copyrights, arguing that a copyright notice on a piece of literary work stating that its author does not consent to anyone using it unless they agree not to copy it constitutes a contract. However, just as it would be ridiculous to claim that reading the Bible or the Constitution makes one subject to their orders – especially in regards to those who don’t believe in the Bible, or are not willing citizens of the United States, or believe that claims of the power to do this or that which are made in the Constitution do not necessarily prove the existence of the ability or the properly-delegated authority to do so – it is ridiculous for Rothbard to pretend that reading a copyright notice obligates one to refrain from reproducing the work in question. Of course, the underlying premise in this notion is that it is not the act of reading which causes the obligation, but instead the existence and properly-applied authority and / or power of some external actor who would attempt to require one to obey.
 What else has been ignored so far in the discussion is that the American legal system guarantees patents for a determined period of time, and in a manner that is impersonal, being that the duration of the patent term – leaving aside the existence of periodic renewal fees – is typically determined without input from the originator. This is why I agreed with Kokesh – to some extent –  when he said that I.P. is one of the “things that the Founding Fathers got wrong”. The power relationship between the originator and the government will be discussed later.

            Kokesh takes his own work as an example, and defends the practice of “copyleft”, saying “my career is based on generating intellectual property, and I don’t claim any of it… everything that is produced with copyleft is free to use and replicate and pass along as long as you don’t charge for the content itself; as long as you don’t claim intellectual property, as long as you don’t turn it into intellectual property” by altering it and selling it.
            Although my intention is not to lambast Kokesh for being excessively well-compensated for his reporting and interview work – and although I cannot say for certain exactly what is his major source of income – I would point out that Kokesh is most likely reasonably well-compensated for his contributions to media, that he is a former Marine, that he is the son of a venture capitalist, and that he is (to be perfectly frank) a white man living in America in the 21st century.
My point is that Kokesh can afford not to claim intellectual property rights to his work, at least more so than the average innovator in the third world, the average American innovator who is a member of one or more minority groups, the average American innovator who has less job experience, and the average American innovator who does not have the advantages associated with having performed military service. To show that I do not say this out of contempt for Kokesh, I would point out that the same is true of myself in regards to my blog posts and YouTube videos, although perhaps not in regards to my more ambitious and laborious future projects such as books; time alone will tell.
 While I applaud and admire Kokesh for his support of copyleft as a solution to problems associated with the modern system of intellectual property rights under the U.S. government, I would argue that Kokesh may be inappropriately concluding from the fact that he does not need I.P. that nobody else should be allowed to claim intellectual property rights on their work.
I also take issue with the manner in which Kokesh rattled off sayings like “there are no new ideas under the sun” and “we see further because we stand on the shoulders of giants”. He surmised that a rejection of I.P. could include arguments such as pointing out that while one may have written a book, one did not invent a language, come up with sentences, invent paragraph structure, or invent paper or ink.
             In using the phrase “invent a language”, Kokesh – likely without knowing it – refuted Benjamin Tucker’s pretention that language and its manners of use can be “invented”. Kokesh is correct to imply that the use of language is refined and improved over time – periods of time which, I might add, are much longer than the U.S. patent term – by more than one person. However, we cannot say for certain what Kokesh’s reaction would be to claims of intellectual property rights to developments of languages which could have been made by people such as J.R.R. Tolkien and the inventors of Esperanto and other constructed languages, many of whom employed the traditional grammatical structures of existing languages – and some of whom rely on grammatical and syntactical structures thought to be universal – in their creations.
            I would further suggest that – in making his “we see further because we stand on the shoulders of giants” comments – Kokesh is making somewhat of a social-contractarian argument against intellectual property. We may remember the words of Harvard law professor and current Democratic Massachusetts Senate candidate Elizabeth Warren, who in 2011 said “there is nobody in this country who got rich on his own… you moved your goods to market on the roads the rest of us paid for; you hired workers the rest of us paid to educate; you were safe… because of police… and fire forces that the rest of us paid for… part of the underlying social contract is you take a hunk of [what you earn] and pay forward for the next kid who comes along”.
            Warren concludes from the fact that modern American society – which affords its citizens sufficient opportunity to earn and accumulate wealth – has components which happen to include publicly-funded roads, schools, police, and fire stations, citizens have the responsibility to pay their earnings forward to the remainder of current society as compensation for the work which has been done by past society.
This is a fallacy because Warren fails to take into account the fact that people who are born in the United States have no ability to choose not to be subject to its laws, nor to choose to be subject to solely the laws of the state or community in which they reside, nor to choose to be subject to the laws of a government competing within the same jurisdiction, nor to choose to be subject to any government which does not have publicly-funded roads, schools, police, and / or fire stations, etc..
She suggests that a person should be obligated to pay into a system which they do not have the opportunity to resist, nor the opportunity to earn the wealth necessary to relocate themselves to the jurisdiction of a foreign government without being required to pay some of that wealth to the government which has jurisdiction over their native land which they feel is oppressive of their rights. 
Furthermore, she fails to consider that what she claims to be the price of earning wealth in a society which affords sufficient economic opportunity is an inhibition and a conditioning of that very opportunity itself. I would argue that this renders Warren’s conception of the conditions for a fair and just society inherently self-contradictory.
       Similarly, Kokesh suggests that while society has been responsible for developing the contributing components of a hypothetical modern author’s book – such components specifically enumerated by Kokesh having been language, sentences, paragraph structure, paper, and ink – the author of the book, as compensation for the contributions of past society, owes current society something; namely, to give in to the demands of current society not to claim intellectual property rights to his work.
          To be explicit, I would argue that – even admitting that some compensation may be due as a condition of living in a free society – no reasonable claim can be made that compensation should be made to current society on the premise that its existence was made possible by the work of past society.
Even so, I maintain that under the current system, society is not free (at least in the civic, institutional sense), due to the fact that – as I explained earlier – no alternatives exist to the subjugation of individuals to the government or governments claiming exclusive or shared jurisdiction over the territory in which such individuals reside and / or are present; this brings me to my last point.

            Murray Rothbard argued that patents are coercive monopolistic privileges granted by the State. In refuting I.P., Adam Kokesh used phrases like “the government” and “the violent government”. Being that both Rothbard and Kokesh were criticizing the system of intellectual property as it exists in the context of the United States government, their manner of phrasing is to be expected.
            Kokesh also used phrases like “the force of government” and “force and violence”. Although in the latter phrase, Kokesh did not say “the government”, with both phrases he suggests that all government is inherently forceful and violent. Nowhere did he define force or violence, or consider that under certain conditions, government can be non-forceful, non-violent, and non-coercive.
            My conception of the freedom of the individual in regards to government or governments is similar to that of Roderick Long; one which could be termed “polyarchism”. It is a position which is neither Statist nor anarchist. It rejects not only the monopoly of Statism, but also the chaos which could result from anarchism in the form of people resolving in their own favor the disputes of others who have vested interest in the relevant decisions.
I believe that it is this type of autocracy which can cause anarchism to become chaotic, and that it is the aforementioned type of monopoly which decreases the number of alternatives to governance from among which individuals are free to choose; decreases them to one in all current cases. It is the lack of competition between governments within the same territory – the imposition of monopoly government by ability to use physical power to ensure the perpetuation of its own exclusive jurisdiction – which causes, and essentially is, tyranny.
Benjamin Tucker called “the patent monopoly” one of “the four monopolies”, the others being those of money, land, and tariffs. He argued that intellectual property creates scarcity where none naturally existed, and that I.P. is an unnatural monopoly. I agree that each of Tucker’s four monopolies are unnatural, but I say so only because government itself is an unnatural monopoly. How monopoly government managed to escape Tucker’s attention – as a cause of all other monopolies, at that – we may never know.
I would argue that a government monopoly could be natural and just by virtue of a government proving itself so competent, responsible, and moral that everyone who is eligible to become citizens of that government would choose to renounce citizenship of their previously chosen government in order to do so. But that’s beside the point.
Long before some government becomes able to distinguish itself from among its competitors in such  a manner, we must make it so that alternatives to jurisdictionally-exclusive governments exist in the first place. But how might a just system of intellectual property rights exist in such an environment? To determine this, we must revisit the various aspects of I.P. which we have gleaned so far, removing those aspects which would only exist under unnaturally monopolistic government.
Intellectual property in the form of copyright seems to exist as a purported contractual agreement which is made obligatory upon the reader of a copyright notice in the act of its reading. Similarly, intellectual property in the form of patent seems to exist as a purported contractual agreement which is made obligatory on one who consents to be subject to a government which makes a claim that it shall have the power and authority to secure – in the Constitution’s own words – “for limited times to authors and inventors the exclusive right to their respective writings and discoveries”.
The obligation to refrain from reproducing and / or re-appropriating a work in a manner that is not innovative or original is applied through the assistance of actors other than the originator – acting through properly-delegated authorization by the originator, who chooses such actors from among a set of competing alternatives – being that I.P. cannot be readily defended in a manner that is sufficient without such assistance.
In the presence of such competing alternative actors acting on the behalf of – and in assistance of – the originator of a work, the originator would be free to choose whichever agency he feels acts in accordance with his ethics and desires.
If he desires the freedom to sell or bequeath a patent or copyright, he can choose to have his I.P. upheld by one of the agencies which offers such options. If he desires the freedom to determine for his own purposes the duration of his patent term, he can choose to have his I.P. upheld by one of the agencies which grants him the ability to choose that duration, or he can choose from among a set of agencies which offer various predetermined patent terms.
Naturally, an originator would desire to optimize the effects of his claimed intellectual property rights. To do so, he would seek some compromise between the maximum number of people on whom an agreement to refrain from making use of his I.P. would be obligatory, and the maximum amount of restitution from those who do make use of his work. To maximize the former, the originator would choose the agency which governs the greatest number of people; to maximize the latter, he would choose the agency which applies the harshest penalties.
Whatever compromise the originator chooses, the effects would be negated – at least among people making informed decisions about who governs them – because very few people who would violate the claimed I.P. rights of others would choose to be subject to an agency which levies harsh penalties for doing so, and very few people who do not endorse I.P. to begin with would choose to be subject to an agency which governs a large number of people, many of whom are likely to have taken into account their personal views on I.P. in choosing their agency.
Effectively, pro-I.P. people would have their rights applied, but no reasonable anti-I.P. person would be penalized for violating those rights. Of course, such a system brings to mind the Bible verse from 1st Timothy “the law is made not for the righteous but for the lawless”, and leaves prevailing modern notions of ethical government and societal justice in shreds.
But it also begs the questions; are ethical government and civic societal justice anything more than the legislation of morality? Should men be held accountable to anything other than the consistency their claimed beliefs? Furthermore, can any progress be made towards reconciling opposing views on intellectual property, or on other ethical issues of contention? Additionally, what is to be done in the mean-time, before competitive government can become a reality?

What remains to be addressed is precisely how such a system would purport to resolve disputes between and amongst competing dispute-resolution organizations (or agencies, or syndicates), i.e., governments. A detailed theory on this topic can be found in Robert Murphy’s “Chaos Theory: Private Law and Private Defense”, but suffice it to say that it entails such governments ceding authority to independent courts without vested interest in resolving the disputes, making decisions in a way that can be appealed many times in perpetuity.

Any semblance of finality would emerge only through temporary trends in the types of choices made by persons in the market for government. Nothing would be set in stone, and nothing should be, because ethical trends and the sets of information which are available to people which may indicate that the truth suggests this or that course of action are ever-changing.
I would argue that such a system would provide viable avenues for individuals to attempt to influence the prevailing governmental environment in a manner that is consistent with their personal ethics; if most people support I.P., then most governments will have laws protecting I.P. rights, and if most people oppose I.P., then few governments will have laws protecting I.P. rights. If most people think a twenty-year patent term is appropriate, then most governments will apply the law relevant to that notion, and if more people believe a shorter patent term is appropriate – or that the sale or bequeathing of patents is unacceptable – then there will be alternatives available which will allow them to act upon such beliefs.
In my opinion, for the time being – until competitive government becomes a reality – the perpetuation of systematic intellectual property rights is either immoral or amoral, as is all action which is not explicitly and intentionally focused towards the abolition of monopoly government. Therefore, the only solutions available to us with regards to I.P. relate to lack of action, direct black-market action, and – to borrow a phrase from Wally Conger in describing liberalism - the “leash[ing of] the State to make it more palatable”.
Making the current Statist I.P. system more palatable, we can vote and petition the governments in such a way that may cause the decrease of the duration of patent terms and patent term extensions; the relaxation of prosecution for breaking laws against file-sharing; the decreased censorship of the internet and elsewhere; and the repeal of laws on patents, file-sharing, and censorship.
Acting directly through the black (or underground) market, we can continue sharing copyrighted material in protest. However, we should only do so judiciously, and take special consideration for the desires and needs of originators who are living as opposed to dead, who are well-off as opposed to struggling, and who earn their livelihoods by distributing materials face-to-face; for example, musicians and authors who tour more than their competitors.
Refraining from acting, we can refrain from claiming copyrights (opting instead to take Adam Kokesh’s lead by copylefting), refrain from applying for patents and patent term extensions, and encouraging others to refrain from doing the same.

Whatever set of solutions we choose, we should bear in mind that intellectual property rights is one of the most contentious – and potentially divisive – issues among the various competing schools of anarchist thought.
We should also bear in mind the distinctions between personal and private property; between natural and unnatural (or artificial, or unearned) monopoly; and between Statism, polyarchism, and anarchism.
Additionally, another distinction must be made between monopoly which is asserted through power for its own perpetuation in the form of State violence, and monopoly which is claimed by individuals in the form of exclusive rights to the product and fruits of one’s labor. While monopoly government may shape and be conducive to monopolistic intellectual property rights under the current system, a claim to an exclusive right to control what happens to one’s work is not necessarily an endorsement of monopoly government, and such a claim does not always see fruition, especially given sufficient alternatives in the market for just government.

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  1. "While libertarian-leaning political theorists such as ... David Friedman ... have expressed support for I.P."

    That's an overstatement in my case. I think whether IP is a good idea is still an open question.

  2. Although I can't recall exactly where, I saw you mentioned as an overall supporter of IP. I should admit I haven't read any statements you've made on the topic. Any links for me?

    I also think the IP debate should remain open - especially given its divisive nature - which is why I tried to imagine how its opponents and proponents would interact under a system of private law.

    Thanks for commenting.

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