Why The Copyright Monopoly Is Quite Unlike Legitimate Restrictions Of Property Rights

In our series about defenses of the copyright monopoly, and why they don’t hold water on scrutiny, today’s article will be about the argument of the copyright monopoly being no different from other restrictions on property rights. Some people would claim that the copyright monopoly is just as legitimate as regulations of land property. This is a false assertion; the copyright monopoly is only legitimate from protectionist or corporativist ideologies.

We’ve outlined in many articles how the copyright monopoly stands in opposition to property rights, being a governmentally-granted private monopoly. We’ve looked at common objections to this observation from those who would attempt to defend the copyright monopoly as legitimate, and how such attempts all fail when confronted with basic facts about the monopoly.

Today, we’ll address a harder point: some people will readily admit that the copyright monopoly is a restriction of property rights, but that it’s no different from other restrictions of property rights, and therefore, they argue it is just as legitimate as the ban against polluting the soil on your land with radioactive waste, or similar regulations that also restrict property rights.

(Some people would be less eloquent and pick worse examples, sometimes much worse – for example, they would point at how you can’t use a hammer to kill a person. That’s most certainly not a restriction of your property rights to hammers, that’s a ban on murdering people.)

In the end, this is all about legitimacy: the legitimacy of the copyright monopoly and its restrictions to our property rights to the copies we manufacture with our own parts and labor and therefore own. Still, on the surface, the claim that the copyright monopoly is like any other restriction on property rights would appear correct. To understand why the argument is false, and doesn’t lend legitimacy to the copyright monopoly, we have to go a bit into philosophy to understand the nature of property rights, and where they come from.

Before we had states with a police that upheld the state’s laws using force, there was still the notion of property. Essentially, you could call that “your property” which you had the means to defend by yourself. This can be easily observed in the animal kingdom, too. Such property fell into three categories: loose objects, territory, and other lifeforms.

We can easily observe in nature how lifeforms behave by these proto-property laws. You will have no problem finding an animal which clearly displays that its considers an object, a territory, or another lifeform their property.

Then, with the construction of states and laws, this became partly institutionalized. You no longer needed to defend all of your property by yourself; the state would defend it for you, but only as long as you complied with the state’s rules. Alas, you would sometimes disagree with the state as to which was your property, and you would be on the losing end of that discussion, so there was a simultaneous loss to the property rights that had been. (We can observe this in taxation, for instance.)

Further, with the invention of the state and the superior firepower resting with it, the rights to own other lifeforms started to gradually disappear, and a new form of property right was conceived: the property right to one’s own body (meaning that no other person could also own it). Thus, gradually, even people born with the wrong set or color of body parts became unownable.

(We can still observe remnants from when women were property in the Christian marriage ritual, where the woman is handed over from her father to her husband: from owner to owner, in what was primarily a property transaction. This is not a ritual we should be proud of, and there’s nothing beautiful about that part of the ritual.)

So we’re arriving at a point where the existence of the state is a precondition for uniform restrictions to property rights, even though restrictions to property rights have existed before, mainly through nonuniform application of force between the citizens themselves. But what about the copyright monopoly, then? Unlike property rights, it cannot exist without the state, for it grants the right to restrict everybody’s property rights to private interests, rather than maintaining it as a function of government.

This is a key difference.

It is quite uncontested that the elected legislature has the right to restrict property rights. I’m not allowed to pour toxic sludge into the groundwater on my own property, for example. It’s also reasonably uncontested that such an elected legislature has the right to delegate a mandate to un-restrict property rights to the executive branch – as long as the default is restricted for everybody, the legislature can delegate the duty of granting exceptions to some authority within government.

Thus, it’s not that the restrictions would apply to some private interests and not to others: property restrictions do apply nonuniformly even under a state of laws. For example, the private defense contractor Applied Nucular Research, LLC may be legally able to purchase metric tons of lithium-6-deuteride, while I may most certainly not. This would be determined by the Radiological Authority or something similarly named, with a delegated mandate from the legislature.

However, when it comes to that copy of Avengers that I bought, and which is my property, it’s not the legislature or their delegate within the government that gets to determine how my property rights are restricted; it’s a private interest. (As we have seen before, my purchase of Avengers is not a contractual agreement; the copyright monopoly stands in opposition to contracting rights and property rights. It’s a pure restriction on property rights, exercised by a private interest.)

So, we’re down to the admission that the copyright monopoly is indeed a restriction of property rights, but we have determined that a key difference between the copyright monopoly and other restrictions of property rights is that the restrictions emanating from the copyright monopoly are controlled by a private interest. How does this affect the copyright monopoly’s legitimacy?

Well, that would depend on which set of eyes you use to judge that legitimacy. At this point, we need to look at which ideologies would support such a construction, and which would not.

The notion that the state can restrict property rights by elected legislature, with exceptions to those restrictions being issued by the government executive, is a well-supported notion in socialism, conservatism, liberalism, and green ideology – all of today’s major political ideals. There are some hardcore libertarians who would argue that nobody has the right to punish you for poisoning the groundwater on your own soil; other than that, this is a pretty much uniform agreement.

However, none of these ideologies support the notion of the legislature delegating the right to restrict property rights to private interests, to delegate the responsibility outside of government of controlling citizen’s property rights. That is a governmentally-sanctioned private monopoly. Such constructions are foreign and horrid to these ideologies – they are…

  • Foreign to socialism, as private monopolies must not exist;
  • Foreign to conservatism, as property rights can’t be limited by governmentally-sanctioned monopolies;
  • Foreign to liberalism, as trade can’t be justly limited by private competing interests;
  • Foreign to green ideology, for the socialism and liberalism reasons.

The only ideologies that properly defend this construction are corporativism (in its corporatocratic meaning) and protectionism:

  • Corporativism: Anything which is good for the currently dominant corporations is good for society, and corporate and legislative powers should ideally meld.
  • Protectionism: The overriding priority is to safeguard our current jobs and industries from influences and developments that threaten them. Anything else is secondary.

Thus, in conclusion,

The copyright monopoly can only be seen as legitimate from a corporativist or protectionist ideology. For socialist, liberal, conservative, or green ideologies, it is a hideous construction.

Therefore, the copyright monopoly is quite unlike other forms of restrictions on property rights, as such restrictions find support in all major political ideologies, which the copyright monopoly doesn’t.

Rick Falkvinge

Rick is the founder of the first Pirate Party and a low-altitude motorcycle pilot.

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  1. Quinn

    Mmm. Actually in ancient traditional Christian marriage, women weren’t property.

    The groom-to-be would give the father of the bride-to-be some money for her hand, and if the father accepted he would make a necklace out of the coins which she would wear during the wedding ceremony. This was to prevent her from being viewed as property.

    Not really the place for the information, but.

  2. Anonymous

    the hard thing to achieve here is changing the minds of those that are viewing copyrighted files, whether digital or otherwise, as not really ‘property’. bloody good luck with that, seeing as how those are the very people that started this view, simply because it assists them in convincing politicians and law enforcement to follow their thinking, rather than the sensible option (you know the one that people in power are supposed to have without being bribed to have it!)

  3. Jeff Rowberg

    It seems to me that this approach to the debate may not make much headway due to the fact that the criteria for “acceptable” vs. “not acceptable” are subjectively defined in relation to public vs. private interest.

    A more foundational question is this: can something which is infinite be owned at all?

    Ownership implies the right to control. Theft is demonstrable by virtue of the fact that when I take something you own, you don’t have it any more. The same is not true of information. Any arrangement of information cannot be moved as such (ignoring the treatment of physical media as information directly, which is not the same thing). Information can only be duplicated, either by manually communicating it from one person to another, or by digitizing and copying it.

    People don’t always retain information themselves, but they certainly do not lose it as a consequence of telling somebody else.

    This puts information in a completely different class from any kind of physical property. It is literally impossible to “steal” information in in the typical sense of the word “steal.”

  4. Ano Nymous

    This is maybe a bit off-topic, but this post reminded me of it.

    Viasat, a satellite TV-company, has a commercial in Swedish TV about their on-demand-service. It is some kind of internet service where one (in exchange for a monthly fee, I think. Propably some privacy too) can see movies and TV programs whenever one wants. It is a streaming service – you do not own the movies (duh, it’s the copyright industry we’re talking about) – propably DRM-ridden, too.
    In that commercial, that has been playing a lot on TV for the last few months, they sing “Power to the people”.

    Hypocrisy hotline 101, how can I assist?