What does free speech have to do with copyright law?

An interesting question from Mises.org:

” What does free speech have to do with copyright law?”

It’s fascinating how this fairly simple set of ideas can exist in the public discourse without understanding the rational foundation upon which the concepts of free speech and copyright are based.

a) Books, magazines, movies, plays, music (at least, in theory, music with lyrics), advertising, speeches, lectures, photographs, works of art, are products that market ideas (largely narratives.) Copyright law attempts to protect narratives from theft just as patents protect manufactured goods, from profiteering by copying and redistributing other people’s inventions.

b) Any of these ‘narrative product’ may contain political speech.(content)

c) Determination of political content is extremely difficult. Harmful or beneficial political content is hard to judge (pornography for example), and therefore the law (as a profession) seeks to avoid having to make those decisions.

d) Free speech as a practical constitutional concept rests on two assumptions:

d.i – that the admitted harm that comes to society from free speech is offset by the protections we obtain from free speech.

d.ii — And to narrow these protections to just those that are overtly political is extremely difficult to the point of practical impossibility.

e) Some products are political by definition, and copyright can be used to deny political works to the market, and especially intellectual products that are purely social and political in nature.

f) copyrights (like patents) should not allow a product to be held from the market, for the purpose of increasing it’s price. (Granted a monopoly.)

So, speech and copyright law are effectively tied-concepts because they are mutually dependent. One cannot have copyright without speech, because all copyright is dependent upon speech. We would have far less speech (content) and experimentation (innovation) without copyrights. The scope of speech that needs protection is untestable, and perhaps unknowable, and it is therefore impossible to regulate by content.

The argument from the Anarchist position is that copyrights AS THEY ARE CONSTRUCTED create a host of reasons for abusive government, regardless of the attempts of the creators of copyright law to prevent just such abuses. But the practical, measurable empirical evidence is that copyrights do improve innovation, wihc in turn, improves competitiveness, which in turn, reduces prices. The Hoppian/Rothbardian solution, even if they would not advocate it, would be to privatize copyright protections, so that we are not burdened by abusive government, or the costs of administering other people’s works.

Again, the fundamental problem here is that it is very difficult to develop criteria by which one thing is equal to another thing, for the purposes of copyright. It is very difficult and expensive to regulate and jury. THe other is that artificially increasing prices of easily reproduced goods is counter to the premise on which the market is based.

I think that the solution, as others have said above, is that reproduction for commercial or self use is different from reproduction for the purpose of distribution and sale. I think personal reproduction, even if it deprives the author of profits is within the speech and copyright objectives. I do not see that there is an argument wherein the authors have the right to prevent you from doing whatever it is once you’ve purchased a commercial product from within the market. I do see that someone concentrating capital for the purpose of profiteering from activity in the market, based upon the innovations of others, without paying a commission for doing so, is simply theft, and is not beneficial. The market political theory requires us to innovate, even if innovation is simply opening up new markets.. I do not see the value in copying. That’s just parasitism. Markets exist and function because of enfranchisement, not parasitism.

I do not think that the market philosophy (even in libertarianism) supports parasitism. I know libertarians do not support rent seeking (parasitism) by the use of organs of the state. Why should we tolerate parasitism in absence of the state? Or is it that we care more about the state than we do about the very market society which we hope to entrust with our social order?

That is the incongruity in Anarchist thought.

Government exists to improve the competitiveness of the market for the purposes of decreasing prices and increasing choices. Without a market, there can be no government. There can be slavery, but no government. We pay for the market by forgone opportunities for violence, for theft. Violence and theft are epistemologically simple tasks. However, markets invite fraud BECAUSE they prohibit violence (retribution for theft).

And as far as I can tell, copyright law is simply fraud protection.

Others are welcome to debate me on this. But I doubt efforts will result in success.

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