The following is an excerpt from Stephen Kinsella's Against Intellectual Property. Obviously, it talks primarily about the utilitarian support for IP, but this argument can be used against any use of utilitarianism. (Emphasis is mine.)
Advocates of IP often justify it on utilitarian grounds. Utilitarians hold that the “end” of encouraging more innovation and creativity justifies the seemingly immoral “means” of restricting the freedom of individuals to use their physical property as they see fit. But there are three fundamental problems with justifying any right or law on strictly utilitarian grounds.
First, let us suppose that wealth or utility could be maximized by adopting certain legal rules; the “size of the pie” is increased. Even then, this does not show that these rules are justified. For example, one could argue that net utility is enhanced by redistributing half of the wealth of society’s richest one percent to its poorest ten percent. But even if stealing some of A’s property and giving it to B increases B’s welfare “more” than it diminishes A’s (if such a comparison could, somehow, be made), this does not establish that the theft of A’s property is justified. Wealth maximization is not the goal of law; rather, the goal is justice — giving each man his due.
Even if overall wealth is increased due to IP laws, it does not follow that this allegedly desirable result justifies the unethical violation of some individuals’ rights to use their own property as they see fit.
Note that this is not the explanation why one may not own information he produced. For that, read Kinsella's monograph or my previous post (after the videos). I may write more about intellectual property and scarcity from Jewish point of view later.
Another comment from the anti-IP thread (for the first part, see this):
The law does not create rights; it recognizes them. When it recognizes the rights that do not exist, the particular law is not a real law, it is a legal fiction. Legal fictions lead to violation of other people’s rights when they are enforced.
For instance, "right" of a husband to relations with his wife is a legal fiction. It has been in place in most "civilized" countries until very recently. In the UK, until early 90s. In the US, until 70s, I think. Its enforcement led to marital rape.
[Incidentally, the Jewish Law strongly forbids spousal rape.]
The same can be said about any unjustified law. For instance, the supposed rights of a book's author to the information in the book contradict the rights of another person to his hard drive on which the electronic version of the book is stored.
Oftentimes, copyright is justified by the claim that "copyright piracy reduces the authors' sales". This argument is based on another pseudo-right, the right of the author to business transactions with his potential clients. What the copyright is saying is that the author owns other people's money even before they exchanged it for the copy of his book, which is clearly ludicrous.
Every application of law needs to be very strictly justified. The law comes in and tells a person what to do or not to do with his hard drive, with his house, with his car, with his body, etc. -- or else (it threatens with force and violence in the case of non-compliance to the law).
It better have a good justification for doing that. One justification I see protection of other people from violation of their rights. In case when this does NOT apply, the law is violating this person's rights needlessly.
That is why the whole approach of "every law is moral unless proven otherwise" is wrong. Every law is immoral unless proven absolutely necessary to protect other people's rights. That is why people who hold to my point of view (which includes the Founding Fathers and approximately one Congressman today) hold to the idea of a limited government.
This is all simply from the moral, rights-based perspective. In reality, as it is usually the cases with most unethical laws, copyright harms the society by stifling creativity and competition and increasing copyright-related lawsuits. History shows that in such areas as art or music, creativity flourished the most during the periods when works of intellect were not protected by monopolies.
I am quoting below my post in a go thread lamenting the widespread "piracy" of go writers' books (most of which are not actually available in many bookstores). I already discussed the non-scarcity argument before (after the videos), but here I also address the arguments "if you pirate my work, my sales will drop" and "the law says this is copyrighted".
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[I wrote the following statement in a previous post: "It is funny that book writers make money from writing about other people's so-called 'intellectual property' (the games they played, the move combinations they invented, etc.) and do not reimburse the players or their families, yet they complain about the 'piracy'. Hypocritical much?"
Someone answered that a particular game played between two people is not recognized by law as intellectual property, while a book discussing that game is. Here is my retort.]
What difference does it make whether some law protects something or not? You are merely saying that a large organization with a lot of guns recognized something arbitrarily as "property" and decided to give monopoly to it. Imagine that my friend is a Russian mafia mobster who "recognizes" all possible piano concerts by all pianists (and sales of tickets to them) in South Brooklyn as his property. He has a lot of guns too (admittedly, not as many as the Federal government). Therefore what?
Whether or not something is legal and whether or not something is moral have nothing to do with each other. There are plenty of cases from history when things were legal but not moral or illegal but moral. For example, American democratically elected state governments at some point recognized slaves as property, protected slavery by law, and recognized assisting slaves to escape as illegal. The first "patents" were actually permissions to rob foreign merchant ships that were granted by European governments at times of war.
Remember, every time you apply a law, you're applying force and violence. You're telling people what to do with their property (such as "you may not use your hard drive and the data on it in this particular way"). When you apply violence/force to someone, you better have a good reason for doing so. The only reason that I see is when you're defending your property or yourself from violence being applied to them. For instance, if I take your pencil, you can use force to take it back. Why? Because the pencil is scarce. Only one of us can use it. So, violence will be applied to one of us. So, let us choose the lesser of two evils and let the force NOT be applied to the one who has a better claim to the pencil.
But information is non-scarce. When I use your idea, that in no way prohibits your use of the same idea. So, scarcity cannot be used as justification.
Your sales will drop if I redistribute the contents of your book for free? Well, you don't own future potential sales. You don't own your potential customers, their money, and their potential custom. If I open a shop right next to yours, I am not "stealing" the customers from you, since you never owned them to begin with. When you're saying that information is property, you're saying that you own potential future business transactions. But that is clearly ridiculous, since it contradicts other people's ownership of themselves and their property.
In general, utilitarian arguments cannot be used as a basis for morality. Such arguments allow nine people to rip a tenth person apart and harvest his organs. [...]
Let me repeat my previous question: does the writer of Kamakura owe nothing to Go Seigen and Kitani Minoru for using their completely new and very specific ideas? Why is it that the specific way of arranging black-and-white letters on paper is "property", but a specific way of arranging black and white stones on a somewhat thicker piece of wood is not?
Mr. Kinsella discusses the opposition to Intellectual Property from libertarian point of view and gives a general introduction of what Libertarianism is.
Ignore the anarchist vs. minirchist stuff. Focus on intellectual property argument. Hear him until the end. I genuinely believe he makes sense after having listened to his essay.
See also an excellent essay “Against Intellectual Property” by Mr. Kinsella (also available as a series of audio-lectures for those who don’t have time to read).
I will quote fully the newest post about copyright idiocy from Mises.org:
Another great institution is being taken down by the copyright terrorists. This one is beyond-belief hilarious/ridiculous/evil because of course we not only own the full rights. We have put the book into Creative Commons and are desperately trying to give the book away to the world.
Observe the insanity!
Dear Ludwig von Mises Institute, We have removed your document "America's Great Depression, by Murray Rothbard" because our text matching system determined that it was very similar to a work that has been marked as copyrighted and not permitted on Scribd.
Like all automated matching systems, our system is not perfect and occasionally makes mistakes. If you believe that your document is not infringing, please contact us at copyright@scribd.com and we will investigate the matter.
As stated in our terms of use, repeated incidents of copyright infringement will result in the deletion of your Scribd.com account and prohibit you from uploading material to Scribd.com in the future. To prevent us from having to take these steps, please delete from scribd.com any material you have uploaded to which you do not own the necessary rights and refrain from uploading any material you are not entitled to upload. For more information about Scribd.com's copyright policy, please read the Terms of Use located at http://www.scribd.com/terms
Sincerely,
Jason Bentley Director of Customer Care jason@scribd.com
I guess this means that the Mises Institute will no longer use Scribd. Who needs this nonsense? And now everyone who ever linked this, embedded it, or sent it to friends is made to look like an idiot, and all the time we wasted getting this on the scribd in the first place is completely wasted.
Oh what a lovely world the copyright police are creating for us! How much better off we are having our own "intellectual property" rammed down our own throats!
Meanwhile, copyright may be unconstitutional. But nobody cares about that particualr document anymore. Almost every single thing that the government is praised for and that it and people working for it consider its main job is unconstitutional. Constitution? Pshh...
