We understand almost at an intuitive level that Intellectual Property (IP) is property and that copying is a violation of somebody's right. But it is? Well, no. It is not. We did explain how IPs are nothing more than nonsense in our previous post Intellectual Property Rights Are Dumb. In this post we analyzed them from a religious, legal as well as politico–economic–philosophical point of view. The short version? None of these approaches holds. At the end of that post we also proposed a solution but we did not elaborate too much. We are going to correct that mistake right now.
GOVERNMENTS
IPR's have been described as negative rights. This is, if you own an IP you can prevent a person from using it. You can do so because there are laws promulgated in most countries around the world that allow you to do so (these laws call it "exercising your rights"). This inevitable leads to the conclusion that IPRs only exist because such laws exist but these laws exist only because governments exist. Therefore, in order to analyze how valid are these IPRs, we need to analyze how valid are the governments that promulgated them.
From a practical point of view, governments say that they have the right to promulgate these IPR laws because they "represents" their citizens. However, we have seen in many articles that governments are democratic or they are not. If they are not, they are some sort of dictatorship, in which case they do not represent anybody but themselves and therefore those IPR laws are not worth the toilet paper that was used when they were conceived. On the other hand, if a government is "democratic", we have also showed how in practice a minority of voters (typically in the order of 25% to 35% of the entire population) get to decide what the other 65% to 75% of the population must do. This clearly show that even democratic governments do not represent the majority of the citizenship and are therefore invalid. It then inevitably follows that if governments are indeed invalid, any and all laws that they promulgate are also invalid; this would include IPR laws.
From a theoretical point of view, governments counter that saying that it does not matter how many citizens elected them, what matter is that the majority of those citizens elected them. This is so because governments have valid Social Contracts and as such, the terms of such contract so specify. If people would not want to be represented by governments, all they have to do is to alter the terms of such contracts. This pseudo-rationale is nothing but snake oil. To begin with, no government has an actual, written Social Contract that can be changed, nor they have an opt-out clause. Sure, you can renounce to a citizenship, but then you lose a great deal of rights in that country, even if you have been born in it, have families in it and poses properties in it. This is not a real opt-out clause; this is simply blackmail. The fact that governments have no written Social Contracts is highly convenient for politicians because this becomes a subjective issue that is un-assailable. Politicians can (and do) spin it any way they may want, throwing sentences such as "for the better good" or "moral" or "ethical" which, when strictly analyzed, make no sense whatsoever. In terms of real Social Contract principles (which politicians conveniently always avoid) governments have no validity whatsoever (we have shown this in Social Contracts Are A Scam). In summary, from a theoretical point of view, governments operate on completely invalid theories and propositions. In the end, governments do what governments do simply because politicians can do it and we have no meaningful way to oppose them.
It is for this reason that as Absolute Austro-Libertarians we proposed a fully enforceable Master Contract as the basis that will enable coexistence between people.
We must never forget that, even in the best case scenario (one that involves suspending disbelief and assuming that governments do represent people and that they do indeed have valid Social Contracts), governments have privileges and not rights. We have also written extensively about this topic. As privileges are simply concessions we give to a person or group, they can never trump our rights and can always retract them for whatever reason. As such, any law promulgated by any country is nothing more than a best effort attempt to lay down some rules which we may or may not abide by, at our sole discretion.
Based on all these fact, governments have no standing, no validity in promulgating enforceable by force IPR laws. Let's us emphasize this again. Any law created by any government is simply invalid (it is not illegal - legal simply means that was promulgated by the government which carries no weight).
But if governments are invalid therefore their IPR laws are invalid.
GOVERNMENT INTERFERENCE
Many people are skeptical of the arguments above. Fair enough, we are not trying to convince everyone; we are only trying to convey sufficient information for you to do your homework and educate yourself.
But there is another point of view that is worth exploring. Let's assume for a second that you believe governments and their IPR laws are valid. This creates a large problem in contract law.
As we have seen throughout this site, Contracts Are The Key To Coexistence. Without contracts, the most basic rules for coexistence break down and no society or group or understanding between people can be achieved. This would hint that contracts are indeed important and messing with them does not seem like a good idea. IPR laws do exactly that. They mess with them at a gigantic level. Allow us to explain.
A contract always have parties; one party gives and the other one receives. What exactly is given and what exactly is received is a matter between parties. Even current legal views are of the matter that, whenever possible, the judiciary should abstain from interfering with contracts and contracting parties. This is one of the biggest legal tenets in contract law.
Let's take a simple scenario. Person A buys a copyrighted gadget from person B. Let's further assume that person A signed a non-disclosure / no-copy agreement with person B with regards to the gadget. This means that person A cannot show this gadget to anyone and cannot make any copies of any kind. Let's now assume that person A has a few friends over to the house. Person A places the gadget in his office, locks the door and goes to the party. A friend of A, let's call him C, attend the party and asks A's wife if she had seen C's glasses. The wife says that no but that they may be in A's office. The wife unlocks A's office and lets C in. In searching for his glasses, C spots the gadget, takes a few quick pictures with his phone, grab his glasses and walks away. A few months later on, C is making and selling exact copies of the gadget.
If we look at contract law, we see that A and B have a contract. But A's wife does not and neither has C. If B finds out that A was somehow negligent and therefore A broke the contract, then A is indeed responsible for all damages. But since neither A's wife nor C had any contract with B, they are, in essence, untouchable. They are not liable for anything. This makes sense because the people who sign the contract are the only ones bound by it; this is, A and B. External parties are not bound by it.
If this rule would not be obeyed, then, for example, you could be liable for a defect in the construction of a bridge that happened in a city you never even visited. Or you could be liable for the Ariane 4 rocket disaster in the French Guyana; or you could be liable for the assassination of Duke Ferdinand (which triggered WWI). Of course! none of this makes any sense simply because you were not part of the picture, this is, you were not part of any contracts that the actual parties to these event had.
The most basic rule of contract law is that: you are not responsible for contract terms of conditions of a contract you do not agreed to.
Yet, IPR laws are different. According to IPR laws you are!
In our little example above, A's wife and C are both liable for breaching the non-disclosure and non-copy contract between A and B! How ridiculous is this!?
Of course, government won't call it a breach of contract, they will call it an illegal act because they promulgated IPR laws. In essence, what the government did is to insert a law in a private contract!
Consider this. You go to buy milk to the supermarket. You are about to pay at the register and a person that you have never seen in your life and has no relationship with you nor the supermarket insist that you must pay extra and that money must go into this person's pocket. If you do not do so, those two gorillas over there with guns and badges will kidnap and incarcerate you. How do you feel? Do you think that this third person has any right to do so? Of course not! This is extortion plain and simple. Fork over the money or else!
IPR laws operate on this principle. We (the government) will insert IPR terms and conditions into universal contracts that all citizens must abide by, whether they like it or not… or else!
IPR laws are nothing but brute force interference by governments into personal affairs and agreements (contracts).
Note: please see the Glossary if you are unfamiliar with certain words.
Continue to Knocking Down Intellectual Property Rights - Part 2
