At present there is a broad movement of people, many of whom are libertarian, that oppose the concept of intellectual property (IP). There are various reasons for this opposition and many arguments have been made to support its abolition. One of the problems with this opposition is that it does little to address concerns about adequate compensation reaching creators and inventors. Their opposition should focus not on the general concept, but rather the specific concept that is the state-granted monopoly privilege vested in copyright and patent legislation.
A step toward abolishing this monopoly privilege would involve creating a layer on top of IP legislation that functions like a contract between creator and consumer. For example, at present there are legal avenues to work around copyright, with the creation of a layer on top of copyright in the form of licensing, such as Creative Commons, GPL, Apache, MIT, and so on. This layer enables consumers of intellectual property a level of flexibility that they would not have had otherwise under pure copyright. There are also End User License Agreements (EULAs) which are used primarily in proprietary software distribution. These licenses are treated more or less like contracts, more so in Europe than in the US. If and when the state-granted monopoly privilege is abolished, copyright would disappear and what would remain would be contracts.
One objection to this model is that individuals cannot own ideas or information. There is a kernel of truth here. While that idea or information is within a person’s mind and does not exist anywhere else in reality it can be considered owned by that individual, as they have exclusive possession and control over it. If and when that idea or information is released to the world is a different matter entirely. Another objection supposes that two people arrive at the same idea on how to build something, with the person who rushes to the patent office first getting the exclusive claim to the idea, and prevent others from using it. The counter to this is that there is nothing inherently wrong with preventing others from behaving in a certain way. Contracts do this all the time, provided they are voluntarily entered into. The problem with the current system is that intellectual property is not voluntary.
In a world without IP legislation, such IP contracts would be voluntary by design, working in a similar fashion to the layer of licensing that sits above copyright legislation. These contracts would be transferrable, that is to say, when someone shares content that is licensed with certain conditions attached, the person they share it with is also bound by the terms of the contract if they take possession of the content, ad infinitum. At no point is force necessary against a third party, because all parties have agreed to the license.
An example of how this would work in practice could be as follows: “A” creates content and shares it with “B” under a license (i.e. contract) which states that if “B” wants to make use of the content they agree to certain conditions, such as acknowledging “A” as the creator of the work, not using the content commercially, and not making any derivatives of the work, but at the same time “B” is free to share the content with anyone they want provided that the license terms are agreed to by that person, in this case “C”. “C” would be provided with a copy of the license upon receiving the content and would be bound by the terms of the license in the same way as “B” because both have agreed to do so in order to have access to the content. This is how open content licenses (such as Creative Commons) work at the moment.
A creator could add additional conditions to the license, such as a no sharing clause in cases where the creator (“A”) does not want people distributing their work (i.e. they want to collect payment), and a remedy for cases where this clause is breached. For example, “B” agrees to a license that does not permit sharing of content, but they share it with “C” anyway. “B” is in breach of contract. “C” has received the content along with a copy of the license (there are ways of embedding licenses into digital data to ensure they cannot be stripped out, such as in metadata or a blockchain), a license which clearly states that anyone who receives a copy of the content are bound by the contract if they wish to use the content, and if so they must pay “A” for access. For the contract to be binding to “C” they need to access the content first. If they use the content they owe “A” payment. If they dispose of their copy immediately then they are not bound by the contract and owe “A” nothing. This in some ways similar to how Microsoft deals with unauthorised copies of Windows. They essentially restrict the capabilities of the operating system until a license key is entered, which can be purchased from their website. The same sort of thing could be done with other digital content if the technology were developed further. All of this ensures that creators are compensated for their thought and effort.
Some may object to a system of contracts, claiming it is akin to the social contract, which is a fictional document used by the state as an ex post facto justification for their monopoly on force. A license agreement, which is a real contract between two or more parties, is nothing like the social contract. For a contract to be valid it needs a few essential things: An offer, an acceptance of that offer, and consideration by both parties (i.e. both get something of value out of the agreement). Taking these principles and applying them to the previous example of a license agreement, “A” is making an offer to any interested party in the form of access to content they have created, “B” accepts that offer. “A” gets value in the form of money, “B” gets value in the form of access to the content. This is a valid contract, not some imaginary document that only exists in a fantasy world of invalid concepts.
Continuing with the example, if “B” violates the no sharing clause of the contract and hands over the content to “C”, “B” is in breach of contract. However, the offer from “A” is still made to “C” in the form of the license attached to the content. “C” accepts the offer if they access the content, thereby forming a contract between themselves and “A”. Unless “C” makes good on payment to “A” they have not fulfilled the requirement of consideration and can be found liable for that. It would be like sneaking into a cinema knowing full well that one should pay to watch the movie, and then getting caught.
What about if the content is stolen by “D” either by hacking the creator’s computer or stealing a physical storage device? In such a scenario where “D” takes the content without consent, there is still a license attached, so they would need to have accepted the license agreement (assuming they accessed the content first) if they passed it on by posting it on the internet, and therefore be in breach of contract (unless they didn’t access the content, in which case they wouldn’t be in breach but would still be up for answering a charge of trespass on “A’s” property if they hacked their computer, and a charge of theft if they stole something physical). So, the content is now up on the internet, however the offer from “A” is still made to anyone who wants to accept it because the license is still attached to the content been downloaded. The only problem is, “A” needs to chase up every person who grabs a copy of the content, which is an inefficient use of their time. This is where a content restriction system like that used by Microsoft with Windows comes into play.
Suppose that “A” did not license their idea and “D” took it off their computer and proceeded to leak it online. Without a contract, their only recourse against “D” would be to go after them for trespassing on their property (an act which made the leak possible) and demand that they pay for damages commensurate with the value of the content leaked. Additionally, “D’s” insurance would cover the damages if they couldn’t afford to pay outright, and if they didn’t have insurance or it didn’t cover their actions, “D” would be working hard to pay off their debt to “A”. This wouldn’t prevent people from getting a copy of the content, but it would likely act as a deterrent against such trespassing. “A” could also be covered by insurance, so in the event that “D” cannot be tracked down, “A” would still be compensated for loss of income.
There are ways of protecting creators and inventors that do not involve legislation, something that libertarians should support. A purely voluntary and contractual idea for enabling IP to exist, without any of the statist garbage thrown in, is the solution to the problem of state-granted monopoly privilege, not outright abolition.
Unit Six
Resources
