-Caveat Lector- from: http://www.zolatimes.com/V3.22/pageone.html <A HREF="http://www.zolatimes.com/V3.22/pageone.html">Laissez Faire City Times - Volume 3 Issue 22 </A> ----- Laissez Faire City Times May 31, 1999 - Volume 3, Issue 22 Editor & Chief: Emile Zola ------------------------------------------------------------------------ Copyrights and Property Rights by Wolf DeVoon Let me present the dilemma as bluntly as possible. Suppose I write a book on anarchy. One of the most peculiar problems in issuing a book on anarchy is that the law of copyright (which is enforced by government) seems to contradict and sabotage the author's political purpose. By submitting the manuscript to a publisher and demanding a royalty from him, it would seem that I implicitly accept and intend to rely on the principle of de jure legal rights, which prohibit publication without the author's consent and compensation. Certainly, any prospective publisher will insist that either he or I assert a copyright -- or else an unscrupulous competitor (upon seeing the success of our first edit ion) might claim a common law right to reproduce the text, without paying a royalty to either of us. As an author, it seems fair that I should receive some benefit for the work of writing. It seems proper, too, that the publisher should be compensated for the expense and risk of promoting my book to a point where it might conceivably be worth "stealing." Although an obscure political tract is less vulnerable to unauthorized exploitation (there will be no movie rights, for instance), doesn't anarchy amount to "a naive floating abstraction," as Ayn Rand called it, which ultimately strips everyone of the mechanism for preserving and protecting their rights? Without government, law courts, and in this case the laws of copyright, doesn't anarchy prevent me from receiving payment for the intellectual property which I created? And without consenting to a copyright notice, would any publisher in his right mind issue such a book? It does no good to hope that the original publisher or anyone else will, as a matter of honor, pay royalties simply because they wish me to receive an income. Sending someone a manuscript does not immediately impose on the recipient an obligation to pay for its publication, or to pay royalties in any fixed amount, except as may be negotiated and agreed with the author, if the publisher wishes to make such an offer. Nor do I believe that all men (including publishers) should be self-governing to the extent of policing themselves in endless perfection of "good will" and Kantian respect for each person as an end-in-himself. The purpose of contract and copyright law is to enforce rights based on mutual, rather than unilateral, execution of property transactions. "If men were angels, no government would be necessary," James Madison observed. And so, the classic defense of the State rests on the fairly straightforward proposition that men are not angels. It might be suggested that I escape the issue by renouncing property -- which is exactly what the "classical" anarchists were forced to do, since it was assumed that property could not exist without the protection of a State to confer and uphold various claims of title to property. "The extreme individualist is not an anarchist, for he considers the State to be necessary. It is needed to protect life, liberty, and property...." (Jacobsen) "A society without an organized government would be at the mercy of the first criminal who came along and who would precipitate it into the chaos of gang warfare.... It is the need of objective laws and of an arbiter for honest disagreements among men that necessitates the establishment of a government." (Rand) Any social system which denies property rights is doomed, not necessarily because men are hopelessly corrupt and un-angelic, but because property is a fundamental human right which cannot be repealed by idealistic notions of socialism. The vast majority of Americans recognise that the principle of private property is moral, just, and pragmatically desirable -- which explains why anarchists have historically had so little influence in U.S. political history. By "property" we mean the things of our own making, which do not in any sense belong to others or to the community. A manuscript is one example; an invention is another. And so, the laws of copyright and patent guarantee to authors of original works an exclusive right to sell, license and profit from their creations. When such rights are conveyed by contract to someone else (for instance, a publisher), the law secures each party's contribution to the long process of making the property available for sale to the public, and guarantees that income will be divided according to each party's contribution of labor, capital and risk. Without such laws and a coercive State to guarantee their enforcement, wouldn't all property-based rights suffer? What justice would anarchy provide for Lionel Ritchie and Bruce Springsteen, if Top 10 hits could be reproduced at will by anybody who wanted to make pirate copies, without paying royalties and without fear of legal sanctions? Here is our first clue: piracy of hit music (and more recently, of video cassettes) is rampant and virtually unstoppable by government agencies. Counterfeits of many successful products are commonplace, including unlicensed "knock-offs" of trademark merchandise, U.S. currency, and computer software. Anything for which demand is strong will inspire counterfeits and unauthorized copies, so long as the cost of manufacture is substantially less than the market price (technically speaking, an economic "rent"). Which leads us to our second clue: if profits are small and the cost of manufacture sufficiently high, piracy is much less tempting. To copy someone else's product involves duplicating his technology and plant -- which, in the case of CDs or videodiscs, used to mean putting together an extremely elaborate infrastructure of highly-trained personnel and precision equipment for a fragile and difficult to manufacture medium of reproduction. (See, however, "Is MP3 the Future of Music?".) It's an investment which no criminal would bother to undertake. "A bank robber wants the cash piled up at a teller's cage; not the enterprise or hard work which made the cash possible" (USA Inc). Likewise, most manufacturers are reluctant to assist competitors and counterfeitors. Instead of petitioning the government for a patent (a legal monopoly to make something), they usually hold their most important technology as trade secrets. A patent discloses the whole workings of an invention, and in essence provides your competitor with a complete blueprint to copy from. It is a fairly easy matter to make a small improvement on someone else's patent; and in any case, the determined pirate knows that it will be years before a court will rule in favor of the patent-holder, by which time the pirate's corporation will be out of business and the profits of opportunity will have been skimmed off, like cream from the top of a fresh bottle. For these reasons, the contest between originators and imitators generally favors the former for a limited period of time, and never favors the latter to any great extent. Apple Computer held a virtual monopoly for two years, at which point a handful of imitators (IBM, Tandy, Commodore) were inspired to offer competitive products. None of them were interested in making Apple counterfeits, because it would have been too difficult to sell such dubious forgeries to Apple dealers. Even IBM found it difficult to push Apple out of the wider personal-computer niche: their highly publicized IBM PC-jr product flopped miserably, in part because Apple had pioneered the market and developed a proprietary customer base, and in part because IBM's product had to compete by means of offering more for less, which is economically difficult to do under any combination of circumstances. While it is true that Apple's share of market eventually declined (today it's less than 5 percent), it remains that the originator profitted handsomely from being first. Apple made billions without seeking or enforcing patent rights. And their use of law courts to restrain Microsoft was a fiasco, when Apple sought to enforce a common law copyright with respect to the "look and feel" of the Macintosh desktop. After spending millions on fancy lawyers, an appeal court ruled that Apple's trashcan icon couldn't be copyrighted. This is typically what happens when you rely on "protection" offered by the elephantine apparatus of a coercive State. But a book is not a computer. Holding my manuscript as a "trade secret" wouldn't accomplish very much, since the point of the whole enterprise is to publish, thus inviting piracy and unauthorized copying. We're all pirates, I suppose, to the extent that we use Xerox machines and laugh at those little notices that warn us about criminal penalties for unauthorized copying. But when we want a whole book, bound in a convenient (and more legible) form, it is not the Xerox machine we turn to. For reasons of economy, book publishers are still doing business long after photocopying invaded their copyright monopoly. By devoting extensive capital to typesetting, plate-making, printing, binding, inventory, marketing, business "good will" and service to booksellers, a publisher maintains a considerable advantage over both the amateur Xerox pirate and any cut-price Hong Kong book counterfeitor. It may be said that this will not deter certain kinds of heavy-handed piracy, especially by larger competitors. If a small publisher issues the first edition of my book, what would stop a huge New York house from "stealing" the bulk of the market, after the little guy invested much to gain favorable reaction on a small scale? Certainly, bigger publishers have more capital, better reputations and more extensive selling opportunities than small publishers. Don't we need copyright laws to protect the little guy from the over-powering clout of Big Business? Would anarchy, in effect, promote monopolies and combinations of impregnable commercial magnitude? After all, there wouldn't be any anti-trust law, either, would there? Here we join very large issues, which go to the heart of the political question. Either anarchy must, in the end, promote justice or corrupt it. It's approrpriate to use the question of copyrighting this book, as a window or frame of reference through which you can glimpse the method of my madness. By all accounts in respectable literature, anarchy is indeed mad, so let's accept that notion for the time being, and take heart in the knowledge that all major innovations are heretical, insane, and probably dangerous. Certainly, the insanity of publishing a radical theory is dangerous to the reputation and liberty of its author, so I freely admit that my methods are no less mad than my overall purpose. Step One: Find the major premise. Are we concerned chiefly with anti-trust law? Competition? Copyright? Common law? Property? -- No. We are concerned with the publication of a specific book, written by a specific author, and a specific publisher to whom the manuscript has been submitted for consideration. The author understands that an unsolicited manuscript does not, under current law or the repeal thereof, obligate the publisher to read it, or select it for publication, or even return it to the author. The publisher knows that this particular author has no track record, no agent, no literary or academic credentials, no public following, and at best a vaguely intellectual book with no movie rights. On top of this, the damn fool says he won't copyright it, which means that the standard contract will have to be re-written to accommodate his fetish for anarchy. Step Two: Narrow the context as much as possible. It's not important to discuss analogous situations, such as hit records, or video cassettes, or Cabbage Patch look-alikes. Counterfeit currency has nothing in common with unauthorized copies of political theory -- and, indeed, bestsellers have nothing in common with this particular manuscript. If it becomes a modern classic of political theory, it might sell 1,000 copies a year. We are not, therefore, concerned with all possible authors or all possible titles. Step Three: Take your time. Answer one question at a time (even though the temptation is great, to lunge at broader issues and huge chunks of information). Ask yourself the question in simple terms: Does the author care about copyright? -- answer: no. End of story. Author sends manuscript to publisher; if the publisher accepts his hare-brained idea of declining copyright, then both parties are happy. In a free society, authors and publishers are free to contract in any way they choose, so long as they do not conspire to defraud or otherwise infringe the rights of a third party. You'll notice that I failed to answer a lot of the more interesting questions we discussed along the way. I didn't conclude with a general rule, which would have helped Lionel Ritchie and Bruce Springsteen. I didn't go whole hog after the issue of anti-trust law or Federal regulation of toothpaste labelling. For those readers who, by training and personal disposition, feel that generalization is crucial to learning, perhaps I can suggest a few rough 'n ready paradigms: Rule 1: If it holds for one, it will probably hold for all. I don't feel inspired to seek the dubious protection of copyright laws because (1) recourse to the courts for legal enforcement is expensive, slow and pointless; (2) my publisher will discover that it is in his own interest to pay royalties, thereby building a business relationship with me and other authors, from which he will get future literary product; (3) the enforcement of publishing agreements is shakier than copyright suits, involving considerable expense, delay and hair-splitting legalisms; (4) even if I sued to enforce a royalty contract, the publisher can easily outsmart any court by using "creative accounting"; (5) if I send the manuscript to small publishers at random, I'm inviting abuse, but if I'm represented by a powerful agent, the publisher will have a double incentive to keep his side of the bargain; (6) for any author and any original work, these factors will apply in proportion to the value of the work -- i.e., Lionel Ritchie and Bruce Springsteen are able to command the most faithful performance of contracts on the part of their publishers, because it would be disastrous to the publisher if he lost the trust of such proven money-spinning clients; and (7) creative accounting, piracy, and the criminal temptation to get something for nothing all increase in direct proportion to the magnitude of the loot, which acts as a sort of automatic anti-trust pressure valve, siphoning the most loot away from the fattest cats. I don't think the billions showered on Lionel Ritchie and Bruce Springsteen are necessarily theirs by right, even though millions of fans paid the retail price of their r ecordings or listened to the radio stations that played their music, or watched their TV shows, or attended their concerts. There is a limit to just how wonderful any author or artist really is -- and I would be willing to argue that when an individual attains the status of a pop "superstar", there's probably something less than saintly in his appeal to the lowest common denominator. In short, an unknown author of an obscure work is least likely to be cheated by the operation of anarchy, whereas Big Business would lose the power of legal coercion by which to maintain a monopolistic advantage. Rule Two: Always keep fundamentals in mind. All of our "what if" questions about the operation of anarchy must be tempered by the proven facts of government tyranny. A copyright, being a State-enforced monopoly, is no different than granting the electic utility an exclusive service area -- but with copyright there is no regulation of profits, operations, or quality of service to the public. Huge profits flow to the most disgusting copyrighted works, whereas publishers of the Bible scrape along with very small return on their investment. This is not to endorse or commend Bible publishers, but merely to show than we must consider the nature and moral utility of the property in question. As Adam Smith observed in The Wealth of Nations: "The exorbitant rewards of players, opera singers, opera dancers, &c are founded upon... the rarity and beauty of the talents, and the discredit of employing them in this manner. It seems absurd at first sight that we should despise their persons and yet reward their talents with the most profuse liberality.... Such talents, though far from being common, are by no means so rare as is imagined. Many people possess them in great perfection, who disdain to make this use of them; and many more are capable of acquiring them, if any thing could be made honorably by them." What this implies (and which I know, from long personal experience in Hollywood) is that show people are making asses of themselves in public -- prostitutes, in Adam Smith's opinion -- whose gigantic incomes are derived from the circus sideshow novelty of their humiliation. Society needs song and dance in daily life; not MTV. A thousand times better that you sing a song for yourself, rather than hear it on the radio; ten thousand times better that you hear a loved one sing to you only, rather than the desolate flattery of believing that a "superstar" is singing to you personally in the midst of a crowded concert hall. Our contemporary amusements are of little real value, and arguably of the same stuff that destroyed the Roman Empire -- a welfare state of bread and circuses, orgies and dissipations. While I personally love the work of entertainment, having made my living in show business for 15 years, I tell you candidly that I've seen and heard more evil in Hollywood than in the offices and shops where men make useful products; more unearned wealth in saloons and nightclubs owned by conscious purveyors of corruption, than in the offices of medical doctors and lawyers. If the overall end of society is enrichment, let's be careful not to enrich sharks and prostitutes at the expense of honest, productive men. Rule Three: Think of and for yourself. If you plan to make your living as a rock star, or as the author of trashy novels, or some other kind of hugely-profitable public humiliation, then by all means you should attempt to justify copyrights. If you are a publisher and plan to get hold of the exclusive true confession of a notorious knave, then I bless your endeavors to unwind every one of my arguments against such laws. But if you want to get the most for your money at the bookstore (and care more for quality than quantity), go easy on the impulse to support monopolies. Likewise, if you hate all authors, can't read, and believe that popular music is immoral, there is no reason to give the issue even a moment's consideration, much less an hour of concerted effort to discover who's right and who's wrong. Be interested in your own interests, and let them guide you. Forget the rights of others, unless you yourself intend to claim similar rights, which will cause you to recognize theirs. Concentrate on the areas in which your life, your liberty, and your happiness are at stake. This hard-boiled, self-centered, egotistical way of looking at things is the core of anarchy. And in justice to the glory of your own life, your birthright of liberty and responsibility, no man can ask you to do more or less than to think of and for yourself. As I said in USA Inc, "Any judge who puts himself above the equal political status of common men, in the name of representing 'the People', and passes judgment on the lives and fortunes of helpless prisoners, is a dictator and tyrant of the lowest, most profoundly evil variety..." This means, with respect to copyright laws and ten thousand other questions, that you must refrain from using government to impose an armchair view of social justice on the concrete problems of others. History is "only a tiresome repetition of one story. Personal and classes have sought to win possession of the power of the State in order to live luxuriously out of the earnings of others.... The reason for the excesses of the old governing classes lies in the vices and passions of human nature -- cupidity, lust, vindictiveness, ambition, and vanity. These vices are confined to no nation, class, or age. They appear in the church, the academy, the workshop, and the hovel, as well as in the army or the palace.... The only thing which has ever restrained these vices of human nature in those who had political power is law sustained by impersonal institutions." (Sumner) The only impersonal institution on earth is the invisible hand of market forces -- an innumerable, disorganized and democratic confluence of independent actors, each seeking his own personal good, with little or no abstract interest in "social justice". To understand exactly what is at stake and the full extent of the horrors perpetrated in the name of society, we must consider the lessons of history. It is a darkly sinister and sometimes amusing tale to tell, how mankind lost the right to live in freedom. ------------------------------------------------------------------------ Wolf DeVoon is the author of "Government is a Quack Faith-Healer" and many other articles. -30- from The Laissez Faire City Times, Vol 3, No 22, May 31, 1999 ------------------------------------------------------------------------ Published by Laissez Faire City Netcasting Group, Inc. Copyright 1998 - Trademark Registered with LFC Public Registrar All Rights Reserved ----- Aloha, He'Ping, Om, Shalom, Salaam. Em Hotep, Peace Be, Omnia Bona Bonis, All My Relations. Adieu, Adios, Aloha. Amen. Roads End Kris DECLARATION & DISCLAIMER ========== CTRL is a discussion and informational exchange list. Proselyzting propagandic screeds are not allowed. Substance—not soapboxing! 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