[free-sklyarov] Libertarian party is not our friends, they are no better then the democrats and republicans.

[Seth David Schoen]

Xcott Craver writes:

> 	I've had baffling discussions
> 	with [self-proclaimed] libertarians, who believe the DMCA is good
> 	because it allows fair use disputes to be resolved by market
> 	forces, rather than by law.  I.e., companies sell restrictive
> 	technologies and consumers "vote with their wallets."  The anti-
> 	circumvention part prevents people from circumventing the market.

Thus the article Declan told us about,

http://www.cfif.org/5_8_2001/Free_line/current/free_line_copyright.htm

and also something Fred von Lohmann found along similar lines:

http://www.cato.org/dailys/08-23-01.html

I was writing a reply in which I maintained that copyright was a
government regulation which interfered with the free market in
creative works.  So there is an exactly parallel argument -- and it's
unlikely that CFIC and Cato would maintain that copyright should
exist because there is a market failure in the absence of regulation.

This leads me to the (unsurprising) conclusion that the most important
thing you can do to get libertarians and trade proponents to oppose
things like the DMCA is to spread the word that copyright is a form of
government regulation.

In the trade world, this could be surprisingly difficult.  I recently
learned that the U.S. government adopted the position that inadequate
intellectual property laws constitute an "unfair trade practice" way
back in 1984, after an intense lobbying campaign by copyright
industries.  This policy decision came years before either copyright
law or international trade law were on the public's radar; at that
time, they were both very obscure and it was hard to imagine that
there would be protests in the street over either.

But there is a long legacy in U.S. trade policy of viewing countries
which don't have U.S.-equivalent copyright laws as somehow deficient
or criminal.  This is strange.  People in the U.S. don't think that a
foreign country is doing something wrong if it doesn't have a Federal
Reserve Bank, if it doesn't have a federal system with states and a
central government, if it doesn't have ZIP codes... but if you don't
follow us on copyright policy, you're a rogue nation!

This policy is only really defensible if you view copyright law _not
as a public policy choice but as a recognition of right and wrong_ --
which is certainly the way libertarians and many other people have
viewed legislation about murder, and frequently about physical
property.  The distinction is more or less equivalent to the archaic
distinction between the malum prohibitum and the malum per se, the
infraction of the law as violation of government policy, or as
inherently evil act.  That's what I was getting at when I wrote that
copyright infringement was like tax evasion rather than like theft.

If infringing copyrights is seen as a malum per se, then almost
everybody will agree that countries which tolerate it or don't crack
down firmly as though they were havens of actual piracy, what the
U.S. alleged of the Barbary States.

If it's a malum prohibitum, then eventually many people will ask why
the U.S. is imposing this legislation on the rest of the world.

This, I think, is the real intellectual battle of the copyright wars.
If copyright is not a form of property (and I pass over the question of
whether anything is really a form of property), then copyright law, as
all legal scholars seem to think, _was made by a legislature, and can
be unmade if the public interest requires_.  But if copyright is a
real right of creators, everywhere and always wrong to infringe,
legislatures are just doing their duty in approximating an ideal of
perfect protection.

That's why I complain about the two pieces mentioned above.  I don't
care whether MOCA passes; I don't care whether we have any particular
scheme of compulsory licensing for on-line music.  I care about
refuting the suggestion that we shouldn't even _propose_ to reform
copyright law, shouldn't even _consider_ reforming it, because to make
any reform at all would violate the property rights of authors.

That is a bad suggestion, but one which underlies huge expanses of
debate in the world today, not to mention U.S. trade policy.

-- 
Seth David Schoen <schoen at loyalty.org> | Its really terrible when FBI arrested
Temp.  http://www.loyalty.org/~schoen/ | hacker, who visited USA with peacefull
down:  http://www.loyalty.org/   (CAF) | mission -- to share his knowledge with
     http://www.freesklyarov.org/      | american nation.  (Ilya V. Vasilyev)