Audio: Intellectual Property Debate at Whittier Law School

by Jacob Huebert on April 16, 2011
in Intellectual Property, Media

Here’s the audio of yesterday’s debate on intellectual property sponsored by the Federalist Society at Whittier Law School:

IP Debate, Whittier Law School Federalist Society, April 14, 2011

I only had 15 minutes to make my opening statement, and of course it’s impossible to make anything close to a complete case for why we should abolish copyrights and patents in such a short time. I could only hope to challenge the students to begin to reconsider whether we need or should have those things. As you can tell from the Q&A at the end, the audience at least found it provocative.

Thanks to my debate opponent, attorney and software developer David Raskin, for making and allowing me to share this recording.

  • Welorf11

    I listened to Mr. Huebert’s portion of the debate. It was a very compelling argument that had elements of structure and elegance about it. Then the person giving the rebuttal, seemed to be 180 degrees opposit of it. I tried listening for a few minutes, however it seemed to be that he was jumping around and trying to avoid directly countering what Mr. Huebert had said. Instead, it appeared that he was trying to appeal to emotion rather than logic.

  • jcox11

    So why does your book state a copyright not just at the publication identification page but at the top and bottom of each of its 254 pages?

  • Jacob Huebert

    The book has a copyright notice because the publisher requires it. I don’t think libertarians are obliged to avoid mainstream publishing until IP is abolished. (The actual book doesn’t have it on every page like that; it has it at the beginning like any other book.)

  • Drani2

    I couldnt listen to the entire response to Huebert’s argument, it entirely inane and devoid of logic. There was no response to Huebert’s points about IP violating REAL property rights and being nothing more than a monopoly privilege that takes advantage of the whole for the profit of the few.

  • Faltacz

    I believe you are referring to the Amazon online preview and not the actual book.

  • JesseJ

    Wow well done! You made a great case!

  • jcox11

    For those of us yet uncertain of the appropriate stand on Intellectual Property, I have a number of questions which might help in the process. Hopefully, you’ll see this as an opportunity to win over doubting Thomases such as myself as surely many of us have had questions such as the following. Since it took Stephan Kinsella and Jeffrey Tucker years to reach their current conclusions (I don’t know about you), you’ll understand the need to help others along.

    Upfront let me state that I have read, Against Intellectual Property as well as the longer volume by Bolden and Levine, Against Intellectual Monopoly. Further I recently read the chapter posted at the Mises site from your book as well as having spent about an hour via Skype with my agent for the Finnish edition of my book discussing my questions. (He’s on your side and I have given [not mine to give?] him my permission to produce the book in Finland under Creative Commons since I haven’t seen any royalties from it there anyway.) Additionally, I listened to your debate with David Raskin. None fully addressed my concerns (or possibly I just didn’t manage to take it all in considering such new ideas). So in a spirit of open inquiry and honest curiosity in considering the views you have on Intellectual Property, please answer the following questions or points for our benefit so that we can possibly trade error for truth regarding IP:

    1. Walk us through what would have taken place as Ayn Rand finished writing Atlas Shrugged or Tom Woods writing Nullification. The author contacts a publisher with a finished manuscript of a book that is widely anticipated and thus has a broad market of eager buyers. Could the publisher take the manuscript and publish it without any compensation to the author since they could just make a copy and return the original to the author? Or would the publisher pay a lesser royalty going in, as the author makes it a condition that they will only share the manuscript—yet to be read by the publisher—for some, again lower payment, than what they receive under IP? Or do you see the process as the author or his/her representative showing the publisher a page at a time while never letting the document out of sight? Please elaborate on all of this.

    2. It’s repeatedly stated that ideas are not scarce in the sense that they are infinitely reproducible. But of course ideas are scarce in the sense that someone has to generate them and that takes massive effort. As a minor author among the universe of authors myself I know how difficult it is to actually complete a book or article—thinking of ideas to write about is easy; it’s the execution that is the hard part! Otherwise, where is Ron Paul’s next book, Tom Woods’ next book, your next book?—they have yet to be written because there is scarcity that has to be overcome. Surely, the prospect of royalties based on copyrights spurs more writers than the absence of such.

    3. With no copyright protection couldn’t a George Soros fund a publication of Mises’s Human Action (and other such books) changing passages such that Mises advocated fractional reserve banking, fiat money, and the theory that underconsumption caused the business cycle and even stamping Mises Institute as the publisher on the title page and book spine (as Kinsella states, “it’s their ink, their paper”) knowing that this version would be the one statist universities, statist bookstore chains, and statist city libraries would stock all in order to confuse anyone with an interest in Mises?

    4. Could a publisher produce a version of any book with any chosen person listed as the author (rather than the one who actually wrote it)? If you say this would be fraudulent and therefore actionable through the courts couldn’t said publisher put in a disclaimer in small print in a long, boring introduction or afterward stating such to cover themselves on this? (And where’s the fraud under a legal regime of “my paper, my ink”—wouldn’t everyone know or be expected to know that this is the standard?)

    5. One button purchasing has been cited as an example of the abuse of copyright, and I agree it is an absurd use of copyright, but isn’t this similar to someone disputing land property rights by pointing out ridiculous examples such as the Kelso Case, zoning, rent controls, wet land exaggerations, etc. as a way of showing the absurdity of these valid rights?

    6. An argument for ending copyright (and patents) you use is that firms end up spending more resources protecting their copyrights (and patents) thereby losing profits from other pursuits and so ending copyrights (and patents) would actually result in more progress, production, and innovation. This seems a strange argument for a champion of free enterprise to make—firms are being so short sighted as to pass up profits and need rescuing from themselves? Doesn’t the entrepreneur’s profit and loss test generate firms that can see their own way through all of this?

    8. Currently, we have IP and thriving book publishing (US 2005: 206,000 books) and movie production (US 2006: 599 released in theatres). These numbers don’t strike me as firms so consumed with protecting copyrights that they fail to innovate. (In my personal experience my book was published under copyright in 1995 and again a 2nd edition in 1997. I had a publisher who contracted with me to produce a Chinese language edition but finally gave up because they could not be assured of copyright in the Chinese system and stated to me that they didn’t see how anyone could make money with book publishing in China. Since then the book has been published, under copyright in Finnish, and under copyright in a forthcoming Korean language edition and in a 3rd edition under copyright here in 2007. From this experience it would seem copyright encourages publication, while the lack of copyright inhibits it.) In the debate, Raskin cited the mouse trap as the most patented item at 4,400 patents. The first was in 1894 so that’s an average of 117 mouse trap patents per year. Again, this number does not strike me as developments being inhibited by IP!)

    9. Without copyrights on movies would any producer fund a high quality, expensive movie such as Avatar ($230-$500 million) when they would know that as soon as it was released copies would proliferate with no costs of filming to recoup? Wouldn’t the end of copyright condemn movie audiences to rather cheap/low quality productions? (This seems a particularly relevant point with all of the whining about the low production values in Atlas Shrugged Part 1. Without the assurance of copyright protection wouldn’t the producers have had even less motivation to invest in its production? A standard tenant of economics in that the lack of secure property rights inhibits development; that is, what would otherwise be scrupulously developed property becomes instead dead capital without secure property rights.)

    10. One of the points against IP is that most authors’/artists’/etc problem is not protecting their works from copiers but obscurity which would be cured by copiers. Doesn’t this miss the mark? An author/artist/etc is always free to allow copies to be made of their work; copyright protects against un-authorized use! (Though I do find it strange that Stephan Kinsella would not agree to allow open copying of his works as has Gary North and Jeff Tucker wouldn’t even give a straight answer to a request to publish a version of The Last Knight!) By analogy, I could complain that my problem with my land property right based business is that not enough people are availing themselves with a visit to me and so I make effort to encourage more drop-ins. This does not mean I want them coming behind the counter to interfere in work or raiding the cash register—again it is un-authorized, not use entirely, that IP appropriately protects! (Your example in the debate Q & A of repeating ideas learned from a professor in a class is an example of authorized use—there is no stipulation that enrolling in a class is done with the contractual agreement not to repeat what you’ve learned. If this stipulation were a part of the agreement then repeating would be a violation. Isn’t this what legal settlements often entail—that the winning party not discloses the agreement?)

    11. Isn’t this view of IP just the view of people who have not had a successful book and see no prospect of ever earning royalties from sales? Are there any successful authors who embrace your view of IP? Does Ron Paul? Does Tom Woods? Does Tom DiLorenzo?

    12. You state, “The book, Libertarianism Today, has a copyright notice because the publisher requires it. I don’t think libertarians are obliged to avoid mainstream publishing until IP is abolished. (The actual book doesn’t have it on every page like that; it has it at the beginning like any other book.)” Do libertarians have an obligation to refrain from buying land condemned via imminent domain actions? Do you suggest boycotts against firms which do (e.g. Wal-Mart)? Since you could have found a publisher which would have produced your book under Creative Commons arrangements (say, the Mises Institute) are you in the same position as that of a land buyer who would only buy with imminent domain compulsions?

    13. You ask, “What difference does it make to an artist if you extend his or her copyright protection for some number of years long after they’re dead?” The same difference it makes to anyone who leaves property to heirs. It is part of the motivation to acquire the property in the first place that one knows that it will be passed on to benefit their offspring. Isn’t this obvious?

    14. Could a notice of copyright be set up as a general statement to anyone acquiring (by purchase or gift or unclaimed) the book that they should proceed only under the understanding of the copyright and thus this becomes a legitimate contractual issue rather than a state granted monopoly privilege—somewhat similar to the sign on restaurant doors of “No Shirt, No Shoes, No Service” wherein one is still free to go shirtless or shoeless, just not here? In other words, the publisher could effectively tell the world at large that their production of the book in question is done only on the grounds that they retain copyright under all circumstances. If you don’t like that condition attached to the work don’t pick it up, don’t open it, don’t read it! (If you don’t like the condition of wearing shoes don’t expect restaurant service.) What you said in the Q &A of the debate (at about 41:00) seems to apply here as well, “people going into things would recognize that risk so its not like it would be unfair in that sense because people would know before they put the effort into it.”

    Thank you for your response to these 14 inquires—I’m sure you have a sizeable audience who are eager to read what you have to say.


    Jim Cox

    (P.S. I sent an earlier version of these questions to Stephan Kinsella a number of months ago but the only response I received was that he didn’t have time to write a response and that some of these questions are answered in the literature.)

  • Jacob Huebert

    I’ll provide some brief responses. I don’t have time to write more than this or to get into a back and forth, so I hope this is helpful to understanding the position.

    1. The author in this case could contract with the publisher to be the first to publish it. There’s no need to only show a page at a time or anything like that. They can just make an agreement in advance that if the publisher likes what it sees and wants to publish it, the publisher will pay an agreed amount and in any event the publisher won’t share it with anyone else in the meantime. Nothing in the anti-IP view stops people from making contracts like this.

    2. Many people write books and articles for little or no pay. Perhaps more people write more books as a result of copyright, but even if that’s so, it doesn’t prove the case for copyright law. After all, we could have even more books written if we gave a government subsidy of money to authors, but I don’t think you would favor that.

    3. You can falsely attribute ideas to people now. For example, Soros could do whatever he wants to the Wealth of Nations, but as far as I’ve noticed, he hasn’t done this. It would be difficult to get away with and surely there are more effective ways of advancing one’s cause.

    4. The fine print wouldn’t be enough because you would have purchased the book based on what it represents itself to be on the cover.

    5. One-click purchasing was protected by a patent, not copyright. In any event, you are correct that an absurd extension of IP law does not in itself prove the case against IP. It can be used to argue that IP has been extended too far, and it can be used as a reductio ad absurdum of the ideas behind IP law.

    6. My argument was not that all firms would make more money if they started disregarding IP now, while the IP regime is in place. Of course there are many kind of rent-seeking behaviors firms will engage in if government privileges are available; that doesn’t mean rent-seeking isn’t economically wasteful.

    7. There is no number 7!

    8. This doesn’t prove anything about whether there would be more or less innovation without IP or about whether IP is legitimate according to libertarian theory.

    9. You may be right that there would be few big-budget blockbuster type movies without IP. It’s not obvious that this is a bad thing. And it certainly isn’t obvious that the movies produced instead would be of low(er) quality. There are people creating high-quality creative works all over the place with little or no expectation of pay.

    10. Yes, people can make their works copyable now, although if they want to work within the existing world of publishing, they may have to give exclusive rights to a publisher, as I have, for example.

    11. This is an ad hominem argument. I can’t speak for those authors that you mention. I do know that each of them has produced many thousands of words for articles and speeches that anyone is free to copy. Anyway, even if they did favor IP, what would this prove? That people who have benefited from an existing system of government privileges favor it — no surprise there. And you’re defining “success” as making money from book royalties; of course that is not the only measure of success.

    12. I don’t tell libertarians what they should or shouldn’t do, except that they shouldn’t advocate or themselves commit aggression.

    13. Sure, it’s a small added benefit, but it’s very unlikely that it makes the difference in whether they’re going to produce things.

    14. The publisher can’t bind the whole world like this; you can only bind someone with whom you’re in privity.

  • jcox11

    Thank you for responding!

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