Libertarians and Open Networks

by publius

Mark Thompson had a thoughtful response to my longer post on the Comcast case and the brief.  It's worth reading the whole thing, but I had a few thoughts and comments.

First, I think libertarians like Mark should be siding with the FCC—in this case, siding with the government agency best maximizes liberty.

I’m not exactly an expert on the tenets of modern libertarianism.  I assume, though, that reduced government intrusion is a means to an end rather than an end unto itself.  That is, maximizing liberty is the ultimate goal, and limiting government is—generally speaking—the way to achieve that end.  (I’m assuming most libertarians are utilitarians—my argument doesn’t work if you think government action is inherently unfair).

In the world of Internet access, though, this general principle doesn’t work.  Libertarians are going to have to pick their poison.  Either the government must impose some basic foundational regulations upon the physical network provider, or the network provider will impose its own restrictions on the application layer (content providers, innovators, etc.).  Indeed, if Comcast wins, its market-distorting interventions are just the tip of the iceberg to come.

So pick your poison—the government or Comcast.

To me, this isn’t a remotely close question.  Government action in this context furthers the goals of libertarianism many times over by providing the foundation for a nearly infinite number of free markets that have extremely low entry costs and are perpetually contestable.  In this respect, open networks are analogous to basic foundational property rights that (I assume) most libertarians concede are necessary to market freedom.

I also want to respond to a couple of Mark’s more specific points about the broadband “duopoly.”  He writes that we should try to “remove the regulations that ensure and enforce the duopoly.”  That certainly couldn’t hurt—my recommendations would be to provide strong protections for muni broadband and to buy out broadcasters’ spectrum.

But the duopoly (at the physical layer) has deeper structural causes that go beyond regulation.   It’s impossible to construct entirely new networks from scratch—there are various barriers to entry, such as enormous fixed sunk costs coupled with extremely low marginal operating costs.  In fact, the networks we use today—telephone and cable networks—were publicly subsidized monopoly networks that became broadband networks by accident.  It's not something we can repeat today.

For the foreseeable future, then, cable and phone are all we got.  Wireless is nowhere close to competing as a substitute service, and probably never will be.

For this same reason, I tend to be very skeptical of arguments that rely on “new networks” emerging.  If they were economically rational to build, we’d see them.  But they’re not, so we haven’t.  More broadly, these arguments tend to ignore the massive structural barriers to entry that exist even without incumbent-protecting regulations.

Comments

[Jacob Davies]

Since the words "natural monopoly" don't occur in his response, why take any of the rest of it seriously? Regulation doesn't cause the duopoly situation of the cable/telephone companies at all. Of course, monopolies are a profound problem for the central belief of libertarians so they have to pretend they don't exist.

In my experience arguing with libertarians is a process of guiding them to rediscovering the need for government in every micro-situation while being unable to convince them that there is a pattern here. It's like arguing with a child who insists that as a general principle one should agree that oranges are usually not orange. Amusing at first; after the tenth time you've gotten them to reluctantly agree on "lemon", only to be immediately presented with another "yellow orange", it gets a little tiresome.

[Brett Bellmore]

"If they were economically rational to build, we’d see them. But they’re not, so we haven’t."

But, WHY aren't they economically rational to build? Maybe the government's got something to do with that? Monopoly franchises? Seizing the EM spectrum, then parceling it out?

The chief argument for government is that it's the only way to solve certain problems. However, quite frequently you'll find that the government causes those problems in the first place.

[Zach]

Nah, see, to Libertarians, if people are really benefited by net neutrality they will demand it from their Internet providers or else look elsewhere for service because people in general are just as brilliant as Libertarians. The fact that this never works in practice is neither here nor there. The fact that people still buy brandname drugs for literally no reason is certainly not evidence that an unregulated drug market is a really bad idea. Etc.

The obvious probably vis a vis the Libertarian ideal with mass communication in general is that current businesses have built up market share and infrastructure on the backs of massive government subsidies either by land grants or spectral handouts. Allowing Comcast to retain the benefits of past subsidies (which for anyone else are now a barrier to market entry) already perverts any chance at living out the Libertarian dream for the Internet.

And even if you liberalize the issue of local access you still have to deal with possible filtering at the level of the bigger pipes upstream which are owned by the same folks that provide local access. Local wireless isn't really the answer even if it becomes more ubiquitous.

[Nate W.]

I assume, though, that reduced government intrusion is a means to an end rather than an end unto itself.

And that, my friend, is where your theory came off the rails...

[Tyro]

publius, no doubt there are good arguments that honest brokers on the issue can make which can make the terms of the issue more clear.

However, let's fact the facts here: libertarianism is about protecting the rights of wealth holders to use the rules to get more money for themselves. When the structure of the internet and its existence allowed cable providers the opportunity to sell broadband internet access to the public who demanded it, then it was a good thing, because it was a great money-making business opportunity. When providers like Comcast see net neutrality as an impediment to the rent-seeking opportunities they want to exploit, it's a bad thing.

It gets down to this: Comcast wants to charge money for something, but regulations prevent them from charging money for it. Therefore, those regulations are considered bad. There's not too much to the "libertarian" POV. They have a specific formula, and they're sticking to it.

[(TO) Francis]

But, WHY aren't they economically rational to build? [followed by blame-the-government]

gee, Brett, why isn't there competition for retail water service? or sewer service? or trash service? maybe there's enormous bodies of legal and economic analysis on natural monopolies?

don't bother looking it up, you're sure you're right.

[Jesurgislac]

Nate W: And that, my friend, is where your theory came off the rails...

*nods*

It is entirely possible there exist rational libertarians of this ilk: but every self-identified libertarian I've encountered has regarded minimising government as an end in itself, even when minimising government/government influence results in less freedom or no freedom at all.

[Mr. Blah B. Blah.]

Yeah, libertarians are for the most part much more focused on the absolute metaphysical sanctity of property à la Ayn Rand. For them, to own something is to [let me clear my special-effects throat here, ahem:] OWN-WN-wn-wn... it outright and absolute, and no-one, especially the government, can tell you what to do with it.

(For some reason they are nonetheless more interested in Federal than municipal politics.)

To be fair, there are those who value individual liberties beyond the right to own property, and there are those who are aware that corporatism can and will hijack seemingly 'libertarian' stands against regulation. However, assuming that a Libertarian will defend liberty is like assuming that a Freeper will defend freedom.

If you wish to persuade them, just point out that without Net Neutrality, the Rothschilds will be finally able to block all web access to the Ludwig von Mises institute.

[Zach]

@Brett - Do you have a workable alternative to the government auctioning off the EM spectrum? I'd be interested to hear it because as far as I know there isn't one that wouldn't entail massive amounts of wasted power and various other effects that'd amount to shitting all over consumers. Management of the EM spectrum has, in fact, paved the way for entirely new industries - satellite communications, short/medium range radio, etc, and will help make the sort of community wireless that publius is hinting at here actually possible after phasing out the analog television range.

[liberal japonicus]

I always liked the suggestion that in order to be a libertarian, there was a litmus test of drug legalization. If you are willing to put your time and energy behind that, you deserve the title of libertarian, if not, you are just a pretender.

[Anthony Damiani]

"First, I think libertarians like Mark should be siding with the FCC—in this case, siding with the government agency best maximizes liberty."

I think you're confusing "libertarians" with "liberals."

Libertarians seem only concerned by government action that infringes on their freedom; it's definitional. Non-government actors are seen as incapable of infringing on freedom in the same way because they lack the compulsory power of force.

[Anna Blume]

Libertarians are the living remainders of a species that evolved during the agrarian epoch - a time when government was indeed the most dangerous predator. They simply haven't adapted to the monopolistic infrastructure and corporate hegemony that were ushered in with the industrial epoch.

[Point]

Am I wrong here, or do Publius and Mark seem to basically agree in their two posts? (If so, Mark also says "the proper way of viewing the situation would be to view the service providers as quite literally creatures of the State" -- would like to know publius' take on that.)

[publius]

Point -- I think we're pretty close, though he's being tempted by the Dark Side. :)

Seriously, I don't think I'd agree with the "creature of the State". I would SORT OF see them as utilities, but the regulations I have in mind are much much less onerous than those that apply to regulated utilities.

Some people claim that people like me want to restore all common carrier regulation. In truth, I only want to restore one small piece of it. I dont' want, for instance, to require Comcast to submit all their data, and let us review their contracts, etc.

[Point]

Thanks publius

[hilzoy]

I have known good-faith libertarians who had no interest in protecting their own wealth, and who were libertarian even when it was flatly against their interests. But I have never gotten a good response from them on the following set of questions:

(a) The laws that say we can only drive on the right limit our freedom, but they do so in a way that maximizes our effective freedom -- by removing our right to drive on the left at will, they enable us to get where we are going much more quickly and safely. Similarly, traffic lights. Is this justifiable?

(Here I think the only good response is "yes". Libetrtarians who object to traffic lights are, imho, insane.)

(b) If so, do you generally regard limitations on freedom that maximize our effective freedom as justifiable?

(Here I think the only good answer is "yes", if one said "yes" to (1) above.)

If "yes": why do you assume that this is rare? Possible examples of freedom-enhanciong government regulations include, for instance, health care reform of the sort currently under debate -- which would limit people's freedom in some respects, but enhance our effective freedom overall, e.g. by keeping us alive and healthy if we would otherwise be uninsured.

If "no": How do you square your answer with your support of the laws that create the legal institution of private property?

It's a puzzlement.

[CharlesWT]

"Possible examples of freedom-enhanciong government regulations include, for instance, health care reform of the sort currently under debate -- which would limit people's freedom in some respects, but enhance our effective freedom overall, e.g. by keeping us alive and healthy if we would otherwise be uninsured."

You're conflating negative and positive freedoms. Libertarians support negative freedoms, but not positive freedoms since they generally come at the expense of someone's negative freedoms. Health care regulations would fall on the positive side.

[Nombrilisme Vide]

Charles:

I agree Hilzoy is conflating freedom to and freedom from, but if this distinction is the kicker, how do you respond to her question (a)? The government stricture forcing us to drive on the right side of the road is a limitation of negative freedom (the freedom to drive on the left, in the middle, serpentine, etc.); if libertarianism is grounded in defense of negative freedom against government tyranny, it must either admit double standards or cry out against this unjust oppression.

If you refuse to decry it, then you've conceded that negative freedoms (e.g., the freedom to drive as you please) may legitimately be restricted in order to facilitate positive freedoms (e.g., the freedom to travel on roads with relative speed and safety).

[CharlesWT]

Someone's negative freedoms only extend as far as they don't infringe on someone else's negative freedoms. Libertarians have objection to agreeing on which side of the road to drive on and then enforcing that agreement.

[CharlesWT]

Libertarians have [no] objection...

[antrumf]

"Libertarians have objection to agreeing on which side of the road to drive on and then enforcing that agreement."

I'm not sure I understood that. Did you just say libertarians object to traffic laws? Which libertarians? You? If you, care to explain a bit more?

[CharlesWT]

I intended to say, "Libertarians have no objection to agreeing on which side of the road to drive on and then enforcing that agreement."

[CharlesWT]

"(Here I think the only good response is "yes". Libetrtarians who object to traffic lights are, imho, insane.)"

Drachten, a small Dutch city with around 50,000 residents has removed almost all of its traffic lights. Major intersections have been converted to roundabouts, smaller intersections just let drivers work make decisions on their own. Basically, it's anarchy. Anarchy that has completely eliminated dangerous crashes and road fatalities and created a surge in bicycle and pedestrian traffic.

Crashes still happen, but they have all been fender benders. The architect of the project, Dr Hans Monderman explained, "We want small accidents, in order to prevent serious ones in which people get hurt." Instead of relying on a set of hard rules, drivers are asked to take their safety, and the safety of others, into their own hands. The result is that people are more aware, more careful and drive slower, but are far less frustrated while driving. Bikes and walkers now rule the roads and can pretty much travel non-stop around town.
[...]
Traffic Lights Replaced By...Courtesy?

[liberal japonicus]

CharlesWT, there must be a set way to deal with roundabouts. In that sense, 'replacing traffic lights with roundabouts' is not a shift from non libertarian to libertarian but a shift from one kind of traffic management system to another.

Saudi Arabia is a place where traffic laws are more aspirational than actual, and the result has been

"The size of the problem can be shown by comparing accident severity and cost in KSA with those of the USA, as presented in Table 2. The table reveals that the percentage of injury accidents in KSA is almost double that in the USA. The percentage of fatal accidents in KSA is 2.6% and the corresponding percentage for the USA is 0.313. This is more than eight times"

[Jesurgislac]

For fairly obvious reasons, I've never encountered a libertarian who refused to make use of the Internet... even though neither the Internet nor the World Wide Web would exist without government investment and enforcement.

I'm fairly sure I've never encountered a libertarian who refused to use roads and sewers government-built and funded.

And I know of no libertarians who strongly wish they lived in a US where people still died of polio, even though that disease was only wiped out by government intervention.

Government intervention seems to be OK when it is sufficiently past that it's (a) justified its value (b) the libertarian defending it hasn't actually had to pay for it (c) invisible as government work (how many libertarians think to thank the government every time they flush the toilet and their crap goes into the government's sewers?)

[sanbikinoraion]

even though neither the Internet nor the World Wide Web would exist without government investment and enforcement.

Hmm, perhaps it's fair to say that they currently exist because of government investment and enforcement, but can you really claim that someone else wouldn't have come along (Berners-Lee Corp. perhaps?) and started wiring computer together?

Computing is one of the few areas in life, it seems, in which passable-quality standards emerge *without* government intervention. I can certainly imagine a world where a bunch of cable providers get together and say "hey, let's let everyone's PCs talk to each other, there might be some money in it".

[sanbikinoraion]

Also, is it not unreasonable for libertarians to drive on the side of the road that the road-maintainer indicates is safe to drive on? I don't see why there is, necessarily, any requirement of government compulsion. Of course the state would prosecute you for manslaughter if you did drive on the wrong side of the road, and I would have thought that that would be enough of a deterrant.

(NB. I'm not a libertarian, but I'm not sure the people arguing against libertarians here are doing it against actual libertarian viewpoints -- the removal of traffic lights is a pretty common libertarian idea in my experience, and is not really a marker for the truly insane type of libertarian.)

[sanbikinoraion]

Of course the state would prosecute you for manslaughter if you did drive on the wrong side of the road, [and hit another car and killed the occupants] and I would have thought that that would be enough of a deterrant.

[Jesurgislac]

but can you really claim that someone else wouldn't have come along (Berners-Lee Corp. perhaps?) and started wiring computer together?

Yes.

The Internet was not profitable in the business sense for decades after its initial creation. If the World Wide Web had been created with the intent of providing profit to a single corporation, the best case scenario would be something like Windows.

The Internet/the World Wide Web are such a taken-for-granted part of our lives these days that it's easy for people to think "oh some company would have thought of doing it if the government hadn't" - but I think that's classic 20/20 hindsight, Monday morning footballer talk. Through the decades when the Internet was an intrinsically unprofitable information network between government/academic computers, any corporation could have decided to set up their own Internet and start developing something like the World Wide Web.

I worked for IBM in the early 1990s. The company intranet was one of the biggest I have ever encountered. It was an enormous and interesting playground in itself - but IBM put strong restrictions on allowing anyone below senior manager to access the Internet. IBM may have been unusually inward-facing at that time - but other companies I've worked for back then had similiar kinds of restrictions. They didn't want their employees straying off their intranet. Linking up computers that all belonged to their company was of obvious value - but the idea that a private company would spontaneously come up with the idea of cross-connecting virtually all the computers in the world into a global net is complete nonsense.

They could have. No one was stopping them. They didn't.

[Brett Bellmore]

"Gee, Brett, why isn't there competition for retail water service? or sewer service? or trash service?"

Are you really not aware that rural areas typically DO have competing trash services? (While water and sewage is usually handled on an individual basis, with private firms just supplying the equipment.) I just love it when people trash the possibility of competition in areas where there demonstrably IS competition. You're so convinced of the theoretical impossibility of the free market providing most services, that you can't notice it actually providing them in violation of your theories.

[Jesurgislac]

While water and sewage is usually handled on an individual basis, with private firms just supplying the equipment.

Huh. Anyone would think you were entirely unaware of the federal drinking water standard or of state regulation of use of groundwater, or of the issues that arise for all where private enterprise is allowed unregulated use of the common water supply.

Sewage treatment is invariably subject to government regulation in countries where dying of cholera isn't an expected summertime hazard. Private companies may compete for sewage treatment but they must do so within a framework of stringent government regulation. Even libertarians generally prefer not to die of cholera if it can possibly be avoided.

[CharlesWT]

"CharlesWT, there must be a set way to deal with roundabouts. In that sense, 'replacing traffic lights with roundabouts' is not a shift from non libertarian to libertarian but a shift from one kind of traffic management system to another."

I merely meant to point out that there's workable alternatives to traffic lights, not that their absence was somehow libertarian.

[Jesurgislac]

Sewage treatment is actually one of those basic health needs that unhistorically-minded people (who don't pay much attention to anything outside their own country) may think is just a given.

Everybody craps. It's one of those givens. That crap must be disposed of safely, or people will die and streets will stink.

Sometimes, in some areas, it may be simplest to let private enterprise take care of disposing of the people's crap. But whether or not private enterprise steps up to the crap, the crap still has to be disposed of safely: it can't simply be left to decay publicly because it isn't profitable to anyone in particular to remove it.

It would take a very short-sighted person of limited knowledge and experience to think that sewage disposal is an area where private enterprise can be allowed free competition...

[Brett Bellmore]

It would take a very short-sighted person of limited knowledge and experience to think that there wasn't free market competition in trash collection, but see above.

[Jesurgislac]

No response on the sewage issue (so to speak) Brett? And no thoughts on what happens when trash collection isn't subject to government regulation?

[Phil]

JanieM, I believe, had some comments about trash collection when this topic came up previously. She lives in a very rural area that has exactly one firm providing trash collection, and they went out of business. Competitors somehow did not miraculously spring up in its wake. Hopefully she'll comment here to disabuse Brett of some of his more stupid notions. Not that he's capable of learning, but it will be amusing nevertheless.

[Slartibartfast]

That crap must be disposed of safely, or people will die and streets will stink.

See also: the half-dozen or so cholera pandemics of the 1800s, which claimed upwards of 40 million lives worldwide.

[sanbikinoraion]

Let me be clear that I don't want to overstate the strength of my opinion - more conjecture than anything else - but I find it hard to believe that in an alternate universe without a DARPA-funded Internet that we wouldn't have some kind of internetworking capability by now.

Remember that from the mid-70s there was a whole other way of internetworking exemplified by dial-in bulletin boards - it's entirely possible that without the net and WWW that these systems would have continued to develop into something very similar to what we now know of as the internet. I can imagine that maybe there'd be several different networks (how AoL wanted the world to be) but fundamentally, I reckon that we'd still have email, online shopping and so on, just perhaps in a slightly different (and probably more "walled garden") form.

[(Chris) McManus]

I’m not exactly an expert on the tenets of modern libertarianism. I assume, though, that reduced government intrusion is a means to an end rather than an end unto itself. That is, maximizing liberty is the ultimate goal, and limiting government is—generally speaking—the way to achieve that end. (I’m assuming most libertarians are utilitarians—my argument doesn’t work if you think government action is inherently unfair)..

Your argument is dead in the water right here. Libertarians do NOT have an interest in maximizing "effective liberty" or anything like that. They do not accept that the actions of non-state actors can restrict liberty, absent physical coercion. Libertarianism in the European tradition does accept that, and views corporate capitalism as an equally great threat to liberty, and looks a lot like anarcho-syndicalism. But American libertarianism is a completely different thing.

Also, most American libertarians are not utilitarians. They have deontological theory based on natural rights. Robert Nozick, for example, has made clear that he believes free market capitalism is the only morally permissible economic system, and that he would continue to advocate it even if it were empirically proven that some other system works better.

[Slartibartfast]

Coventry for libertarians? It just might be an idea whose time has come.

TANSTAAFL in action. It'd be an interesting experiment, and doubtless one of the more successful reality shows to ever hit the airwaves.

[Slartibartfast]

Clarification: Coventry.

[Jesurgislac]

but I find it hard to believe that in an alternate universe without a DARPA-funded Internet that we wouldn't have some kind of internetworking capability by now.

Suggest you study up on the Internet Protocol Suite. Seriously, I appreciate how much the Internet must look like something that was "bound to happen" - but the more you know about the technological history of the Internet, the more apparent it becomes that it had to be a public enterprise, not a private one, from its inception.

The whole history of private enterprise making use of the Internet has not been such to indicate that it would ever have become the global open-architecture network if it had been entirely the province of private enterprise.

[Zach]

Again, Brett, what's your libertarian alternative to the government divvying up the EM spectrum? My contention is that there isn't one that doesn't entail massive waste or monopoly.

[Slartibartfast]

I imagine something like the Internet would have been cobbled together by academics, but with government funding. Which would effectively be the same thing. See also: CSNET.

No, what we'd have wound up with as a result of corporate activities is pretty much what we did end up with: a spate of dialup BBSes, CompuServe and AOL. I missed most of this era, mostly because I was busy locked up in rooms with vault-doors that deliberately did not have network connection to the outside world.

[Noise Machine]

Net neutrality just promotes copyright infringement. That's what BitTorrent is for. I don't understand the Orwellian definition of "liberty" either. The government must coerce you so that you can be free. OK. That's why people are scared of progressives. (It's also why the progressive movement was involved in racism and eugenics.)

[Noise Machine]

Net neutrality just promotes copyright infringement. That's what BitTorrent is for. I don't understand the Orwellian definition of "liberty" either. The government must coerce you so that you can be free. OK. That's why people are scared of progressives. (It's also why the progressive movement was involved in racism and eugenics.)

[(Chris) McManus]

So, Mr. Machine, child sweat shop workers are "free" because they're oppressed by private entities, rather than governments?

[Jesurgislac]

Net neutrality just promotes copyright infringement. That's what BitTorrent is for.

It's also worth regarding BitTorrent as a means by which fans of a TV series or film will promote it internationally. For free.

Monty Python's Flying Circus's response, in 2006, to three years of "you YouTubers ripping us off, taking tens of thousands of our videos and putting them on YouTube" was to turn the tables on them:

We know who you are, we know where you live and we could come after you in ways too horrible to tell. But being the extraordinarily nice chaps we are, we've figured a better way to get our own back: We've launched our own Monty Python channel on YouTube.

No more of those crap quality videos you've been posting. We're giving you the real thing - HQ videos delivered straight from our vault.

What's more, we're taking our most viewed clips and uploading brand new HQ versions. And what's even more, we're letting you see absolutely everything for free. So there!

And the result? Their sales went up like crazy. (You can hear Eric Idle explain this to you... but the video sound starts almost immediately, so I wouldn't click on it at work, unless you work in an office full of Monty Python fans.)

[Slartibartfast]

Net neutrality just promotes copyright infringement

That's my daily WTF, right there. We have copyright infringement with or without Net Neutrality.

[Noise Machine]

So, Mr. Machine, child sweat shop workers are "free" because they're oppressed by private entities, rather than governments?

They FREELY take those jobs. The alternative is subsistence agriculture. What you call "sweat shops" have raised living standards immeasurably. A company gives a little girl a chance to build toys in a factory and actually have food to eat versus starving to death working in a rice paddy, and you think the company is "oppressing" her?

[Noise Machine]

Jesurgislac,

You're talking about YouTube. What does that have to do with BitTorrent? BitTorrent is actually involved in publius' case, YouTube isn't. (Not that I mind off-topic Monty Python posts.)

Slartibartfast,

You're right in a sense. Copyright infringement is as old as copyright itself. But we can have either more or less of it. BitTorrent gives us more. Forcing Comcast to let the BitTorrent people (read:copyright infringers) hog the whole internet makes the problem a lot worse.

[Jesurgislac]

You're talking about YouTube. What does that have to do with BitTorrent?

Both allow fans to promote their favorite works for free, to the ultimate commercial benefit of the company that produces them.

There are far more complex issues here because with regard to creative works, there's the moral right of ownership (ie, do not file off the name/serial number and pass it off as your own work); there's commercial profiteering (ie, do not re-sell for profit something you do not actually own); and there's giving stuff away for free, which ultimately tends to create a larger market for what you're giving away leading to higher sales.

I speak as someone who never downloaded anything from BitTorrent in my life (though, uh, I have watched on other people's computers what they'd downloaded and urgently recommended...), but there's a clear benefit in sales/commercial popularity to turning a blind eye to BitTorrent and other means of fan propagation.

[sanbikinoraion]

Net neutrality just promotes copyright infringement

Even if it definitely did, amongst the other obviously negative side-effects of garden-walling and competitor-snubbing, is that actually a problem?

Copyright is a means to an end - the end of rewarding people for creating beautiful things. In an age where copying is fantastically easy and stopping it is really hard, it's time to think about different ways to reward artists.

[Noise Machine]

Both allow fans to promote their favorite works for free, to the ultimate commercial benefit of the company that produces them.

You're right that someone could use BitTorrent for that. But the test of copyright infringement is not whether there is some conceivable non-infringing use. Napster tried that defense and it failed. You have to look at the way the technology is used in the real world. Honestly, what percent of BitTorrent downloads do you think have the copyright holder's permission? One percent? Maybe?

[Noise Machine]

Copyright is a means to an end - the end of rewarding people for creating beautiful things. In an age where copying is fantastically easy and stopping it is really hard, it's time to think about different ways to reward artists.

How is that a legal argument? This thread is about the law. You may think you know a better way to organize the retail sales sector, but that doesn't give you the right to throw a brick through a storefront and loot the place.

[Nombrilisme Vide]

CharlesWT:

Someone's negative freedoms only extend as far as they don't infringe on someone else's negative freedoms. Libertarians have [no] objection to agreeing on which side of the road to drive on and then enforcing that agreement.

I'm really not sure what you're saying here is accurate. To my eye, driving as one pleases is a negative freedom (freedom to drive as one sees fit). Driving in a safe and relatively expedient manner is a positive freedom (freedom from accident and impediment). An agreement to promote the positive freedoms of safety and efficiency is just that: an agreement to promote positive freedoms. I cannot see that your claim that traffic laws being mutually consented to represents giving up negative freedoms because they impede the negative freedoms of others; it looks very much like giving up negative freedoms because they impede the positive freedoms of yourself and others.

Or rather, I cannot see that the multilateral yielding of negative traffic freedoms (cast strictly as such, even though it's possible to cast it as a matter of positive freedoms) as being a qualitatively different situation than more commonly considered situations where libertarians refuse to accept a multilateral yielding of negative freedoms. For example, smoking bans. The negative freedom to smoke where one pleases is viewed as being superior to that of choosing to go or work where one pleases (if one is functionally incapable of tolerating a smokey environment). It is viewed as being entirely superior to the positive freedom of being free from breathing secondhand smoke in public spaces (public health). And yet, many of the same arguments for traffic could apply here, but don't. If you wish to drive as you please, you may do so in a non-public space. If people who are by dint of birth or circumstance less capable of driving in a rule-free environment, they can forgo their right to access public thoroughfares, or do so at their own risk.In fact, they can hire drivers to transport them! If their work would require them to drive, they can find other work. And yet, freestyle driving's banishment from public spaces is quite freely accepted.

Which is to say, I think your attempt to cast traffic laws as strictly a matter of avoiding impediments on negative freedoms is disingenuous. It's about creating positive freedoms at the cost of negative freedoms. The major intent of traffic laws is to promote relative freedom from death and delay (public health, to a large degree). I strongly doubt that the overwhelming majority libertarians actually view their acquiescence to them as a concession of the negative freedom to drive without restriction since others claiming that right would impede their own claiming of it; I would strongly suspect that unless they were consciously rationalizing their libertarian acceptance of it they'd view it as a concession of their negative freedom because others claiming it would impede their positive freedom of safety from death and delay on the roads (or a refusal to strip others of that positive freedom).

There's far more going on here than the simple consideration of positive versus negative freedom you present.

[(Chris) McManus]

NV,

I agree with you about traffic laws. But there's nothing in Libertarianism that prohibits exercising positive liberty to restrict negative liberty. It's called contract law. Libertarians are all about enforcing the right to contract. Contracts, by definition, are agreements that restrict liberty.

[Nombrilisme Vide]

Net neutrality just promotes copyright infringement. That's what BitTorrent is for.

Um, no. BitTorrent is for distributing the bandwidth cost of propagating large files. It is used fairly frequently in this respect in a perfectly legal manner; e.g., MMOs will use P2P downloads to avoid swamping their servers' capacities for doling out enormous clients or smaller patches which experience massive simultaneous demand. That it is used more frequently for copyright infringement does not mean that its purpose is to circumvent copyright restriction. Its purpose was and remains decentralizing file distribution overhead.

You're right that someone could use BitTorrent for that. But the test of copyright infringement is not whether there is some conceivable non-infringing use. Napster tried that defense and it failed. You have to look at the way the technology is used in the real world. Honestly, what percent of BitTorrent downloads do you think have the copyright holder's permission? One percent? Maybe?

The same arguments can be (and were) used against e.g., audio cassette tapes. They were generally unconvincing then. Why should they be more convincing now?

[Nombrilisme Vide]

@Chris:

I completely agree. That's what my final line was intending (but apparently failing) to convey. Charles has set up a simplistic (and very pure) libertarian litmus test for when freedom can be permitted restrictions. My point was that there is political ideology well beyond this simple test at work here. Indeed, I'd say your 9:51 comment is decidedly apropos; I very nearly pointed to it in my prior post.

[Jacob Davies]

Libertarians defending copyright law: always funny.

Without strong government coercion, there is no copyright. And copyright represents a fundamental infringement of the natural human right to share information and make copies of useful ideas. The argument supporting copyright is that by restricting that right and giving a limited monopoly on the copying of information goods we can cause more information goods to be produced. It is explicitly a social-engineering do-gooding exercise.

[Noise Machine]

The same arguments can be (and were) used against e.g., audio cassette tapes. They were generally unconvincing then. Why should they be more convincing now?

Because there was a famous http://directhomehere.info/browse.php?u=Oi8vd3d3LnR5cGVwYWQuY29tL3NlcnZpY2VzLyJodHRwOi8vd3d3Lmxhdy5jb3JuZWxsLmVkdS9jb3B5cmlnaHQvY2FzZXMvMjM5X0YzZF8xMDA0Lmh0bSI%2B&b=13 court case about Napster. That decision is legal precedent. In other words, like it or not it's the law.

[Noise Machine]

I messed the link up. The case is A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).

(I thought I could be clever and link directly to Lexis but I messed it up.)

[Noise Machine]

I messed the link up. The case is A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).

(I thought I could be clever and link directly to Lexis but I messed it up.)

[Noise Machine]

Jacob Davies,

I don't know what's funny about it. Libertarians support property rights. That includes intellectual property. All property rights require government coercion for their enforcement. If I trespass on your land, you can call the cops on me. Libertarians have no problem with that. That's the difference between libertarians and anarchists.

[(Chris) McManus]

NV,

I see your point. We're on the same page.

[Nombrilisme Vide]

@Noise Machine:

IANAL, but I'm pretty sure that some key aspects of the Napster finding don't apply here, specifically that the protocol creator would not be able to "control the infringing behavior of users". Looking at the text itself, here's the money quote, and it specifically cites the old Betamax decision:

We are bound to follow Sony, and will not impute the requisite level of knowledge to Napster merely because peer-to-peer file sharing technology may be used to infringe plaintiffs' copyrights. See 464 U.S. at 436 (rejecting argument that merely supplying the "'means' to accomplish an infringing activity" leads to imposition of liability). We depart from the reasoning of the district court that Napster failed to demonstrate that its system is capable of commercially significant noninfringing uses.

It's an architectural issue. BitTorrent as a protocol has very marked difference from the P2P architecture used by Napster, and these differences are highly relevant. It wasn't P2P file sharing that got struck down by the Napster decision; it was the Napster paradigm.

[mattH]

The argument supporting copyright is that by restricting that right and giving a limited monopoly on the copying of information goods we can cause more information goods to be produced. It is explicitly a social-engineering do-gooding exercise.

Not to mention one of the few things explicit in the constitution, including that it must be for a limited time. Further proof of what you say.

[Slartibartfast]

BitTorrent gives us more. Forcing Comcast to let the BitTorrent people (read:copyright infringers) hog the whole internet makes the problem a lot worse.

Are you saying Comcast controls the entire Internet?

[CharlesWT]

The whole thing about traffic laws is a bit of a red herring. Unless you own the road, you have no right, negative or positive, to drive on it. Driving on roads, public or private, is a privilege ceded to you by the owners of the roads. You should expect to have to abide by the rules set by the roads' owners if you drive on them.

[Nombrilisme Vide]

That's a blatant dodge, Charles, and it in no way reflects on your prior reasoning.

The road's owners are, in this context, the government. As we are talking about a representative government, the laws are created by politicians representing the people. Some of these people are libertarians, some of these politicians are libertarians. So do those libertarian people and politicians want traffic laws to remain, or be repealed?

And if so, why do they want them maintained or eliminated?

The question of traffic laws is in no way a red herring unless the roads are privately owned or the government is non-representative.

[Noise Machine]

Are you saying Comcast controls the entire Internet?

If Comcast is your ISP it might as well control the whole internet.

[hilzoy]

"Libertarians support property rights."

So what I want to know is: how is this consistent with the idea that it is not OK to interfere with anyone's negative freedom in order to secure greater "freedom to"?

In a world of perfect negative freedom, we might all hold onto whatever we could hold onto, but the state would not (I would think) be in the business of creating and maintaining an institution of private property, which (as noted) requires government coercion. I am fine with the institution of private property, but that's because I accept the idea of government using its power to try to create the conditions for the effective exercise of freedom for its citizens. The institution of private property greatly expands all our freedom, which is why I take it to be justified. (Nb: I also take it that it can assume a number of different forms, and need not be absolute in a sense that would make, say, taxation equivalent to theft.)

[Noise Machine]

Hilzoy,

Your comment seems to conflate libertarianism and anarchism. Libertarians believe in the existence of the state. The point of the state is to protect natural rights, i.e. negative liberties. The idea that it is proper to create a coercive entity to protect natural rights goes back to Locke. You seem to be voicing a Hobbesian notion that perfect liberty is enjoyed only in a state of violent anarchy, and the only way to abate such violence is to surrender our natural rights. Locke improved social contract theory by introducing a theory of natural rights into the state of nature. In other words, while Hobbes would view raping your neighbor as an exercise of natural right, Locke would not. Locke would view it as a violation of the victim's natural rights. The state exists to protect pre-existing natural rights, including the natural right to private property. But the state does not create the right to private property, anymore than it creates the right to life. Something like the right to vote, on the other hand, would be a positive liberty created by the state, but not property.

[Slartibartfast]

If Comcast is your ISP it might as well control the whole internet.

It doesn't, so I can copyright-infringe all I please.

[Sapient]

"But the state does not create the right to private property, anymore than it creates the right to life."

What? How is it that property even exists? I own land because I staked a claim? I own it because the state allows me to purchase it (or inherit it, or be given it) and call it my own. Who owned it in the first place? (In the U.S., most land was claimed, purchased or owned by the government after being "acquired".) It's the state that sets the parameters for what property is, and how people manage to "own" it. The state could as easily say that there is a property right in health as it does that there is a property right in expression.

[Noise Machine]

How is it that property even exists? I own land because I staked a claim? I own it because the state allows me to purchase it (or inherit it, or be given it) and call it my own. Who owned it in the first place? (In the U.S., most land was claimed, purchased or owned by the government after being "acquired".)

Locke would say you own it because you mixed your labor with it. Intellectual property fits in very well with the general system of Lockean property rights.

The state could as easily say that there is a property right in health as it does that there is a property right in expression.

You do own your own body as a matter of natural law, if that's what you mean. You do have a natural negative right to health, in the sense that others may not injure you. You do not, however, naturally have a positive right to health, in the sense of a right to free health care, as that would imply a right to control the labor of others.

[Nombrilisme Vide]

Locke would say you own it because you mixed your labor with it. Intellectual property fits in very well with the general system of Lockean property rights.

Does it fit well though? Because there is generally no finite physical object involved, intellectual property lawas generally outlaw both the appropriating of one's creative output (copying) and labors wholly devoid of influence by your output that result in a substantially similar product (parallel evolution). There is also the problem of finiteness - nothing in another taking your intellectual property infringes your ability to have it as well. It infringes only your "right" to possess an exploitable monopoly over it. I think that latter follows a bit less clearly than you suggest.

[Noise Machine]

intellectual property lawas generally outlaw both the appropriating of one's creative output (copying) and labors wholly devoid of influence by your output that result in a substantially similar product (parallel evolution).

I think you're right that, from a pure libertarian perspective, genuine parallel evolution should be allowed. The practical problem, of course, is that those who copy will always claim parallel evolution.

[Brian]

Actually, this point was addressed in a copyright class I took while in college: if Alice produces a text T, and Bob independently produces a text T but without any derivation from Alice's T (that is, the words sprang forth de novo into both of their heads), they each should properly have a separate copyright on the text.

The difficulty, of course, is in proving that neither work was derivative of the other. Thus, you get things like the (very expensive) clean room implementations by Compaq of something that was compatible with IBM's BIOS; even if Compaq's source was strongly similar to IBM's, they had the paper trail to show the Compaq engineers involved had not copied anything from IBM's.

Patents, of course, are an entirely different beast; the only thing that independently creating it on your own would do is be an argument for overturning the patent based on its obviousness (obvious inventions aren't supposed to be patentable, although it seems to be routinely ignored when computers are involved).

[Jesurgislac]

You do not, however, naturally have a positive right to health, in the sense of a right to free health care, as that would imply a right to control the labor of others.

Curiously enough, this "right to control the labor of others" never seems to bother libertarians as an improper right except with regard to health care.

[Noise Machine]

Curiously enough, this "right to control the labor of others" never seems to bother libertarians as an improper right except with regard to health care.

What do you mean by that? Libertarians oppose all sorts of government benefits where giving the benefit to A requires confiscating the labor of B.

If by "right to control the others" you mean voluntary employment your point is silly. Of course Libertarians don't oppose people voluntarily doing things for others in exchange for money.

[Jesurgislac]

Of course Libertarians don't oppose people voluntarily doing things for others in exchange for money.

Yet you were arguing that libertarians have a problem with doctors voluntarily doing healthcare for others in exchange for money, when that money is not paid to the doctors directly by their patients, but by the doctors' employer.

What do you mean by that? Libertarians oppose all sorts of government benefits where giving the benefit to A requires confiscating the labor of B

The NHS employs doctors, nurses, and other health-care professionals to provide healthcare for free to all UK legal residents. The issue of "confiscated labor" does not apply in the slightest: the NHS is one of the largest (and one of the most popular) employers in Europe.

Is it possible that you didn't understand that?

[Noise Machine]

Yet you were arguing that libertarians have a problem with doctors voluntarily doing healthcare for others in exchange for money, when that money is not paid to the doctors directly by their patients, but by the doctors' employer.

Where? Are you crazy? I never said I objected to doctors voluntarily treating patients whose medical bills were covered by insurance. How could you possibly write that?

The NHS employs doctors, nurses, and other health-care professionals to provide healthcare for free to all UK legal residents. The issue of "confiscated labor" does not apply in the slightest: the NHS is one of the largest (and one of the most popular) employers in Europe.

And who pays those salaries? Taxpayers. Money is taken from one taxpayer to pay for someone else's health care. That's what libertarians object to. If you want to take your own money and buy health insurance, I and every other libertarian have no objection whatsoever. And who cares about the NHS either, we're not in England.

[Jesurgislac]

I never said I objected to doctors voluntarily treating patients whose medical bills were covered by insurance.

Yet you appear to think that a patient whose medical care is free at point of access is somehow "confiscating the labor of the doctor". It doesn't seem to have occurred to you that a doctor who isn't getting paid directly by the patient, is nonetheless being paid.

And who pays those salaries?

NHS patients. You seem to have a rather random notion that no UK taxpayers are NHS patients. Not so. We are all taxpayers: we are all NHS patients. My healthcare is free at point of access: I pay for it by paying my taxes. So do we all.

Money is taken from one taxpayer to pay for someone else's health care. That's what libertarians object to.

See, that's what's so random. My taxes pay for my healthcare. Healthcare which is free at point of access, because that's the most efficient and the cheapest way of making sure everyone gets the healthcare they need.

If you want to take your own money and buy health insurance, I and every other libertarian have no objection whatsoever.

Then why object to the most efficient health insurance system in the world - the NHS? You still don't seem to get the point: just because the patient isn't handing over their money at the point of treatment, doesn't mean the doctor and the other healthcare professionals aren't being paid.

And who cares about the NHS either, we're not in England.

I live in the UK, with a healthcare system ignorantly defamed by Americans who ignored the death panels of your health insurance companies that kill 22,000 people a year. The right-wing anti-health brigade in the US first brought the NHS into this argument: which was silly of them, because it's a healthcare system so far superior to the US's that comparisons are really unfair.

[Slartibartfast]

the death panels of your health insurance companies that kill 22,000 people a year

Now, there's an outright trollish comment. Is there still a demand for better policing?

[Jesurgislac]

Slarti, you can't both police arguments and join in on them.

You can argue that mentioning the 22,000 thousand people who die each year in the US because they have been denied health insurance and so were unable to get healthcare is "outright trollish". That's joining in the argument, in your usual randomly confusing way, which I would normally ignore.

Or you can avoid joining the arguments and only police them, in which case, trying to claim that a statement of fact which attacks no one personally is "outright trollish" is bad policing.

Take your pick.

[Slartibartfast]

Oh. Well, when I see complaints that someone is trolling, without any personal attacks that go with them, I tend to conclude that the definition of objectionable trolling encompasses patently ridiculous claims designed to create an argument.

Which yours clearly was.

But maybe I've misapprehended, and personal attacks have taken place that I failed to notice. If so, paint me a sign.

[Jesurgislac]

I grant that Irrumator, as a right-wing troll, is obviously not who you're here to police.

[Slartibartfast]

I'm just saying that if you want rules enforcement, that might affect you in ways you might not like. If you don't like trolls, and want us to do something about them, you're going to have to give up trolling.

OTOH if you're experiencing personal attacks from Irrumator, for instance, please point to where that happened and I'll take action on it.

The notion that I tend to ignore trolls that are right-wing is just absurd. I've banned BoB more times than I can count; ditto some of our other right-wing idiots. In fact, I tend to err if anything in the direction of leniency in the other direction, figuring that what our left-of-center readership sees as tolerable ought to be, by definition, tolerated.

[Noise Machine]

Jesurgislac,

You seem to confused about basic aspects of my argument. Perhaps this is understandable as the U.S. libertarian perspective is not often voiced in the UK. I don't want to attribute bad faith on your part, but it seems as if you are purposely distorting what I'm saying in order to stir things up. I don't expect to convince of the merits of a totally different political philosophy, but I do expect that you would at least try to understand what I'm saying before attacking me.

Let's start with the basics. This statement is really off the mark, and is likely the root of the confusion:

Yet you appear to think that a patient whose medical care is free at point of access is somehow "confiscating the labor of the doctor". It doesn't seem to have occurred to you that a doctor who isn't getting paid directly by the patient, is nonetheless being paid.

The most important point here is that I was NOT talking about the labor of the doctor. I understand that NHS doctors are paid salaries by the government. What I was talking about is the labor of the workers whose taxes go to pay those salaries. A portion of their income is confiscated by the government in the form of taxation in order to pay for the NHS.

I also understand that the same workers who pay taxes get health care from the NHS. But the benefits that you get from the NHS are not proportional to the amount of taxes you pay. In other words, everyone gets the same health benefits regardless of what they pay into the system. The result of this is that high income people who pay more taxes end up subsidizing low income people who pay less taxes. Thus, a portion of a high earner's income is being taken from him in order to subsidize a low earner's health care. That's the only point I was making.

If you are not a libertarian, which I'm sure you are not, you are likely to respond, who cares? Those who advocate (modern) liberalism and socialism think that it is good for the government to redistribute wealth through taxation and government spending. Libertarians do not agree, and view such redistribution as a violation of property rights.

If you would like to address this difference in political philosophy I would be happy to hear your perspective. But please avoid distorting what I say and making irrelevant, inflammatory claims about "killing 22,000 people."

[Jesurgislac]

when I see complaints that someone is trolling, without any personal attacks that go with them

Irrumator and Jay Jerome have both been identified as trolls by people other than myself (most recently, Mckinneytexas opened a comment to Irrumator noting that troll-feeding is like falling down the rabbit-hole, or somesuch).

If it matters to you, Irrumator and Jay Jerome have both personally attacked me. (Pericles has too, but I trust he and I have got that sorted out.)

Yet you're coming down on me - and only me - for identifying Irrumator and Jay Jerome as trolls? Is this good policing, or is this you being personally malicious?

[Slartibartfast]

No, I'm asking you to point to a comment that attacks you, personally. I believe I've done that:

OTOH if you're experiencing personal attacks from Irrumator, for instance, please point to where that happened and I'll take action on it.

Identifying someone as a troll isn't grounds for banning that person, or at least it isn't grounds yet.

[Jesurgislac]

Noise Machine: The most important point here is that I was NOT talking about the labor of the doctor.

Fair point. If I'd realized this was just customary libertarian nonsense about how taxes are " confiscation of labor", I wouldn't have bothered to reply. That's old libertarian nonsense - the freeloader's argument that they shouldn't have to pay for the benefits they receive in living in a country with a tax-funded infrastructure.

But I was (mistakenly, I acknowledge) under the impression that you thought free healthcare at point of access meant the doctor was working for free, and that was a new bit of libertarian nonsense to me... so worth responding to.

[Irrumator]

Jesurgislac,

I haven't launched any personal attacks against you. The only thing I've said that could be construed as an attack is that I've called you a troll. I'm not the only one to have done so, either.

But you're going to make everyone's head explode if you keep pushing the logic that I'm a troll because I called you a troll, which makes you a troll for calling me a troll, etc.

[publius]

I agree with Slarti. I think we need to be err on the side of not banning, etc., particularly given that we want to encourage conservative commenters to feel welcome.

That said, either of us will of course step in when necessary.

More broadly, it would be nice to get beyond the "who's a troll" discussion and just debate the points. (though I recognize that sometimes impossible to do)

[evilrooster]

Irrumator,

I think there's a fair argument you crossed into troll territory here; the comment about her mouth is downright stalkeriffic, given your username.

And yes, it wasn't to me personally, but I really would like to hear a defense of that statement that isn't some variant of "I was kidding about wanting to orally rape her!" Because whether you were joking or not, it was entirely inappropriate.

[Jesurgislac]

More broadly, it would be nice to get beyond the "who's a troll" discussion and just debate the points.

It would be great. Unfortunately, trolls like Irrumator and Jay Jerome show up to disrupt discussion - and the only way to avoid their disrupting discussion is to ignore their comments. I watched several discussions go down under Jay Jerome's trolling before I started publicly identifying him as a troll. Irrumator, on the other hand, showed up as a troll from the start, even if it is now doing what someone else identified as "butter won't melt in its mouth" behavior.

Part of the problem is that if the initial poster doesn't have time to police an ongoing discussion, and/or otherwise ignores trolling, discussion won't happen.

The whole point of people calling for better policing was so that discussions could happen - rather than (I like to think) people (or even just me) getting slammed for publicly identifying trolls as trolls.

[Jesurgislac]

and the only way to avoid their disrupting discussion is to ignore their comments.

Sorry - the only way if moderators don't want to police discussions. If the objective is simply to stop trolls being identified as such so that they can continue to troll discussion threads, how is this any different from what's been happening over the past few months?

[Slartibartfast]

the comment about her mouth is downright stalkeriffic, given your username

Yes, that was more than a little creepy. If I'd had any privilege at the time, I'd have said something.

[publius]

Fair enough Jes -- and we're trying to do better on that front.