Libertarians can’t justify media piracy

Online media piracy presents an existential threat to Libertarians.

On the one hand, they believe that individuals should exercise absolute control over their holdings, that owners should be able to dictate terms of use through voluntary contracts, and that no political arguments to the contrary should be allowed to interfere with these rights.

But on the other hand, Libertarians desperately want votes — and that includes votes from the roughly three quarters of Americans who are fine with stealing music, movies, games and software on the internet. They also want to take advantage of popular approval of file sharing to attack democratic governance. And even prominent Libertarians themselves encourage stealing media.

The impasse here is perfectly obvious. There’s just no getting around the problem of media piracy if you’re going to try to take an absolutist stance in defense of private property. But that hasn’t prevented Libertarians from trying!

Rebels without a copyright

One underappreciated advantage of cult ideology is its flexibility. Popular politics are usually constrained by inertia – their powerful institutions, their histories, their traditions and their adherents tend to police thought into a consistent if rigid orthodoxy. Cults, meanwhile, are characterized by a tendency towards the iconoclastic, the undisciplined, and the esoteric.

“The more absurdly oxymoronic, the greater the leap of faith – the stronger its appeal to cult types,” Mark Ames writes.

So we shouldn’t be surprised to find disagreement among Libertarians about a concept foundational to their entire ideology: the theory of property. The orthodox may cringe, but Libertarian critics of intellectual property think of themselves as intellectual rebels bravely swimming upstream. Thus Roderick Long begins his “Libertarian Case Against Property Rights” with a Hayek quote:

“It would be interesting to discover … a seriously critical view of … copyright … publicly stated in a society…controlled by people who have a vested interest in the existing situation.”

This is not a point about the merits of copyright — it’s a point about how interesting the critics are. Once again, Libertarian contrarians aren’t content to be merely right — they have to be daring freedom fighters waging intellectual war against our totally repressive society.

Libertarians defend property, advocate stealing

So how do Libertarians try to delegitimize intellectual property while defending private property? Not very well!

For example, one approach has been to insist that only physical objects can be understood as property. “Only concrete, physical things were appropriable and, consequently, subject to individual ownership,” David D’Amato writes on the philosophy of Benjamin Tucker.

This, of course, is not a position anyone with a bank account can afford to maintain for very long. As Libertarian gold bugs know perfectly well, much of the money in our current market has no basis in material commodities; our ledger sheets are mostly intellectual abstractions, numbers floating in the ether. But few Libertarians would be comfortable with financial fraud on the grounds that the numbers being manipulated were not themselves physical objects.

Another approach has been to insist that intellectual property is “non-rivalrous in consumption” — that is, it can be used, as Maggiolino writes, “without causing depletion of any direct injury to their original owners.”

But this, too, is completely inconsistent with our basic ideas about property rights. My neighbor, for example, has property rights over his pool. Even if no one else is using it, and even if I clean up any mess I make, I still can’t swim in it without his permission. Considerations about whether I am using up the pool or whether I am somehow harming the owner are obviously irrelevant; his sovereign control of his own holdings trumps such issues.

This is precisely why Libertarians like Rothbard defended copyright: if an author sells access to her work on the condition that it cannot be copied, then as D’Amato puts it, “the resulting copyright protections would be completely legitimate on libertarian grounds.”

The left critique

For the left, of course, intellectual property presents no dilemma at all.

That’s because for the left, “property” is just a concept we invent when we’re trying to create fair and productive public policy. Individual ownership is important in a lot of ways, and so we’ve created a lot of laws to maintain and defend it. But the public good is important too, and we have to take that into consideration as well.

So it’s exceedingly easy for the leftist to say that powerful media corporations have been overcharging consumers for decades, and therefore don’t have a particularly compelling claim on songs being traded through file sharing. This corresponds well with the public’s intuitions and ideas about justice, which is why even Libertarians have a hard time insisting that media piracy is morally wrong.

Meanwhile, the left can still maintain that most people still should have ownership rights to their possessions. That’s because most people haven’t earned insane wealth by exploiting and extorting others.

These are simplifications, of course, but it’s easy to see how the left is able to maintain just, rational and consistent ideas about property. Libertarians, meanwhile, are stuck with a rigid, absolutist notion of private property that gets them into all kinds of trouble as soon as it confronts the real world. And there are few better examples of this than their sad attempt to pander to file-sharers with bizarre, clumsy intellectual contortions over intellectual property.

Photo: The Cato Institute’s Julian Sanchez, one of many libertarians with ridiculous ideas about property. []