"Long Live Intellectual Property Rights!" (source)
Column by John deLaubenfels, posted on October 20, 2003
Article mirrored with permission of John deLaubenfels
In a recent STR column, Roderick Long argues that, "Either intellectual property means slavery, or it means nothing at all." I would beg to differ.
Let us view the question from the standpoint of the right of individuals to voluntarily engage in private contracts with others. This right is taken as being one of the core inalienable freedoms by virtually all people of a libertarian bent, I believe.
Now suppose that I've written a program which enhances photographs by making the dark areas brighter, without washing out the bright areas (I have, in fact, written such a program). Certainly it's a fine and wonderful thing if I choose to share that program freely, either in executable or source code form, as a gift to the world. But only a statist would claim that I have a moral or legal duty to do so. If I decide to keep the algorithm and everything that flows from it secret, and take them with me to the grave, that is my right.
If I wish to share the program, yet not give it away, one option would be to invite others to send me their photographs, enhance them, and return the enhanced photos, either free or for a fee. I might offer the service for free until a large enough pool of people want more of it, then charge.
Product and Contract
Suppose Bill, whose photos I've enhanced, says, "I'd rather run your program myself, so I can fix pictures on the spot instead of waiting for you to do them." I say, "Well, Bill, I'm afraid that if I send the executable to you, you'll run off copies and give them to others. Then I lose all ability to make money from this thing I've invented."
What's Bill going to answer? Perhaps something like this: "I promise I won't pass a copy of your program along to anybody else, if you'll just share it with me." I respond, "Will you back that promise, in writing, with a large monetary penalty if I can show that you've violated this agreement?" Bill: "Yes I will."
Would Mr. Long make the resulting contract non-binding by government decree? That strikes me as absurd. It is perfectly reasonable and valid for two people (or, by extension, two companies or other entities) to come to such an agreement. I get a lump sum of cash, am relieved of future work on Bill's photos, and Bill gets to enhance his own pix. I can continue to offer enhancement services, and may, if I find willing buyers, sell additional copies of the program under similar terms.
In my view, it is to the benefit of everyone if such contracts are possible, and, when necessary, are backed by whatever mechanism of enforcement the two parties have agreed upon. I need hardly add that no one forces Bill to sign; he may choose to use my services under my terms or forego them. Or, he may decide to try to write, or otherwise acquire, a different program which produces similar, perhaps better, results, and cut me out of the picture. If, on the other hand, Bill voluntarily agrees to contract with me, who is Mr. Long, or anybody else, to say that the contract should not be honored?
The same reasoning applies to other forms of intellectual property: prose, poetry, music, whatever. What's that I hear you say, that books and music aren't "the same" as software? They are different in detail, not in principle. To take Mr. Long's own example, suppose I read you my latest poem. But before I do so, I ask, "Will you agree not to pass this on?" and I wait for your affirmative answer before proceeding. Voila, we have a contract.
Do you object that books and music aren't sold with such an agreement? They most certainly are; it's called copyright law. Now, we might agree that copyrights are a clumsy way to approach the problem, and that people should be left to negotiate their own terms on a case-by-case basis. But this in no way negates the solid principle behind what copyright laws protect.
Some forms of intellectual property are much easier to steal than the source code of my example program, especially if I offer only enhancement services. But the fact that it is easier does not make it any more legitimate. Theft made easy is not theft made moral.
It is often said that a conservative is a liberal who has been mugged. I wonder whether those who argue that intellectual property rights are "slavery" have never had a creation of value stolen from them. Or is it, even worse, a lust to get something for nothing? Whatever the motivation, the assertion is nonsense.