An Anarcho-Capitalist Summary of the Impotence of Copyright Law

by Robert Hutchinson

This article aims to illustrate, through a combination of natural law and free market arguments, that any system of copyright similar to those currently enforced by governments worldwide is both ethically indefensible and realistically incapable of being effective.  

Copyright is defined by Merriam-Webster's Collegiate Dictionary as "the exclusive legal right to reproduce, publish, and sell the matter and form (as of a literary, musical, or artistic work)." There are usually two arguments in support of the concept of copyright. The first is in the realm of property rights: those who spend time and effort producing literary, musical, and artistic works have created tangible property, and thus the creators properly have control over such output. The second is a utilitarian argument: those who spend time and effort producing such works expect a return on the labor they've exerted, and without any ability to own such works, the resultant supply will dwarf any profit to be found in the demand.  

The first argument requires an examination of what property is and how it should be treated. Property's definition is in fact rooted in the very nature of the universe. All matter and energy is scarce. Human beings require the ability to use these scarce resources in order to survive. Property is the means by which humanity apportions such resources peacefully. Since no human has any greater claim to unclaimed resources than any other human, the first person to claim a scarce resource is thus properly considered the property owner of that resource. This ownership means that only the original owner may determine what is done with his property, except when the owner transfers ownership to another willingly. (Egalitarian methods of apportioning property are invariably more complex and unwieldy than the preceding system, and by that fact alone are less conducive to each person's survival and are thus inferior.) 

A problem arises when this system is not fully recognized as the sole basis of property rights. Many people become accustomed to "working for a living," and this idea begins to take hold as the actual basis of property; that is, a worker does not rightfully demand payment because he is in control of his own scarce time and resources, but rather because he believes the results of his labor have inherent value. Having dissolved this link, it becomes all too simple to go one step further, to believe that everything which exists (tangible and intangible, scarce and abundant) due to one's labor must therefore be the property of the laborer. This belief becomes even further entrenched through the passage of time, as more and more careers are based in owning (and eventually selling) the full array of the results of one's labor.  

The lack of any logical or ethical basis for such beliefs is easily demonstrated, not only by the preceding trail of logical leaps, but also by examining copyright law itself. If copyright were an efficient basis for ownership, there would be no need for arbitrary copyright terms, ever fluctuating (usually in the addition of years). There would be no need for myriad "fair use" exemptions. Government has established these exceptions and limitations not through any logical "balancing" of the needs of humanity, but merely to prevent the society that feeds the government from grinding to a halt. For if the method of ideas-as-property were carried out to its logical ends, seeking permission to use and reproduce ideas every time the need arose would have a tremendous, exponential cost, both in money and time. This runs counter to the previously stated purpose of property as the simplest and most efficient means of human coexistence and prosperity.  

The second argument has already been touched on somewhat, but it will now be more closely examined. While this author believes that the requirements of natural law must ultimately supersede any utilitarian arguments, there is nevertheless a very effective utilitarian response to be found. Just as a system of copyright is more or less unwieldy in its applications, so must the enforcement of copyright law be, on the whole, more difficult than the protection of proper claims to scarce goods. When an apple is stolen, the proper owner is almost always aware that it is missing, due to the scarce nature of apples. Ideas, on the other hand, are not bound by such tangible limitations. As this article is written, a thousand copies of it could be produced without needing to disturb the original instance of it in any way. The "thief" has failed to leave the most conspicuous calling card of any theft: the absence of the stolen item.  

This means that, most often, copyright holders must rely on secondhand observation to discover that their material has been copied without permission, and furthermore, to discover the identity of the copier(s). This can only be reasonably achieved when the copying is both sufficiently public and local, and here is where we encounter the ever-increasing "realistic" difficulty in catching acts of unauthorized copying: the rapid expansion of both the Internet and highly secure encryption. The apple thief cannot steal an apple found halfway around the world without traveling there physically, but this limitation does not apply to telecommunications. The apple thief also cannot lock the apple inside an unbreakable box, but data can be encrypted so as to make all but its encrypter ignorant of its true nature.  

Thus, despite the desires of those producing creative works to maintain control over them, there is an ever-increasing inability to protect such works from being copied. All the good and noble intentions in the world are for naught if they prove unable to realistically provide control. However, as with all "good" utilitarian arguments, there is a counterresponse to this one: copyright holders are beginning to request that the government nullify these advancements through further legislation. There is a current attempt, along these lines, to cripple technology so that it can only make copies authorized by the copyright holders. While this author is troubled by such attempts, he is encouraged by the astounding and constant advancements made by the free market every day, and he believes that the nature of government prevents it from ever having a chance to overtake these advances in the end.  

December 13, 2001