According to the BBC a court in Sweden has jailed four men behind The Pirate Bay (TPB), the world’s most high-profile file-sharing website, in a landmark case.

It’s amusing to note that the BBC shows no bias whatsoever in the inferences it would like readers to draw from the fact that “The Pirate Bay’s first server is now a museum exhibit in Stockholm”. Implicitly, The Pirate Bay has ended and has already been consigned to the history books.

However, let’s just have another look at the BBC’s more serious claim that this is a ‘landmark case’.

I wonder if this case has any precedents?

In other words, given that what we fail to learn from history is that we are doomed to repeat it, let’s see if there’s anything in our history that can inform us as to our future.

I’ve got an idea. What would such a case look like if the news story was remixed to make it appear as if it related to issues that would have been familiar around 80 years ago?

A court in New York has jailed four men behind The Bootlegger Bay (TBB), the nations’s most high-profile speakeasy promotions agency, in a landmark case.

Frederik Neij, Gottfrid Svartholm Warg, Carl Lundstrom and Peter Sunde were found guilty of breaking sumptuary law (per the 18th amendment) and were sentenced to a year in jail.

They were also ordered to pay $4,500 in fines.

Temperance Societies welcomed the verdict but the men are to appeal and Sunde said they would refuse to pay the fine.

Speaking to The New York Times, the chairman of coalition body the Anti-Saloon League (ASL) Wayne Wheeler said the verdict sent out a clear message.

“These guys weren’t making a principled stand, they were out to line their own pockets. There was nothing meritorious about their behaviour, it was reprehensible.”

“The Bootlegger Bay did immense harm and the fine doesn’t even get close to due penitence, but we never claimed it did.”

“There has been a perception that imbibing alcohol is OK and that the temperance movement should just have to accept it. This verdict will change that,” he said.

The four men denied the charges throughout the trial, saying that because they did not actually manufacture or distribute any intoxicating liquour, they were not doing anything wrong.

Speaking on WRUC, the assistant judge explained how the court reached its findings.

“The court first tried whether there was any question of consumption of alcohol by persons upon the premises and that has been proved, that the offence was committed.”

“The court then moved on to look at those who acted as a team to operate the Bootlegger Bay speakeasy promotions agency, and the court found that they knew that intoxicating beverage would be distributed but continued to operate the service,” he said.

William H. Stayton, leader of the Association Against the Prohibition Amendment – which is trying to reform laws around alcohol and drinking premises – told the NYT that the verdict was “a gross injustice”.

“This wasn’t a criminal trial, it was a political trial. It is just gross beyond description that you can jail four people for directing thirsty citizens to the places they want to go.”

“There is a lot of anger in New York City right now. Drinking is an institution here and while I can’t encourage people to break the Volstead Act, I’m not following it and I don’t agree with it.”

“Today’s events make the consumption of alcoholic beverages a hot political issue and we’re going to take this to Congress.”

Here’s the history we’re doomed to repeat:

In 1921, 95,933 illicit distilleries, stills, still works and fermentors were seized. in 1925, the total jumped to 172,537 and up to 282,122 in 1930. In connection with these seizures, 34,175 persons were arrested in 1921; by 1925, the number had risen to 62,747 and to a high in 1928 of 75,307 (Internal Revenue, Service, 1921, 1966, 1970: 95, 6, 73). Concurrently, convictions for liquor offenses in federal courts rose from 35,000 in 1923 to 61,383 in 1932.

The law could not quell the continuing demand for alcoholic products. Thus, where legal enterprises could no longer supply the demand, an illicit traffic developed, from the point of manufacture to consumption. The institution of the speakeasy replaced the institution of the saloon. Estimates of the number of speakeasies throughout the United States ranged from 200,000 to 500,000 (Lee, 1963: 68).

Here’s the outcome, and our future:

It is difficult to assess the relative numbers of the wet and dry partisans during the last few years of national prohibition. In terms of strength, however, the wets surely had the edge which less than two decades before had belonged to the drys. The new wet strength showed up at the National Convention of the Democratic party held in Chicago in 1932, where Mayor Cermak of that city filled the galleries with his supporters. And, though Franklin D. Roosevelt had wooed the dry vote for some time, he now came forward on a platform which favored the outright repeal of the 18th Amendment. Accepting his nomination, he stated:

I congratulate this convention for having had the courage, fearlessly to write into its declaration of principles what an overwhelming majority here assembled really thinks about the 18th Amendment. This convention wants repeal. Your candidate wants repeal. And I am confident that the United States of America wants repeal (Dobyns, 1940: 160).

While dry leaders looked on with disgust, Roosevelt was elected president and Congress turned a somersault. The repeal amendment was introduced February 14, 1933, by Sen. Blaine of Wisconsin and approved two days later by the Senate 63 to 23. The House followed four days later, voting 289 to 121 to send the amendment on to the States (Lee, 1963: 231).

And the allegorical analogue of The Pirate Party? The Association Against the Prohibition Amendment (AAPA):

The job of total repeal was accomplished with the help of the determined AAPA during the succeeding year. Their lawyers assisted the states in preparing bills for conventions and release of various forms of political propaganda, thereby enacting a serious satire on the 1919 campaign launched by the Anti-Saloon League. Notwithstanding their high and enduring constitutional principles, on December 31, 1933, with repeal a reality, the AAPA ceased to exist and sent its files to the Library of Congress. “Having attained its objective . . . the Association resisted the temptation to linger on as a ‘sentinel of American liberty’ ‘’, the New York Times observed in the organization’s obituary (Dobyns, 1940: 132).

A ‘sentinel of American liberty’ eh? Would you find such an organisation in the US today? The land of the free?

The Free Software Foundation is close, but it doesn’t campaign for the abolition of copyright (yet).

At least we can take heart that abolition is not far away, that day when the people’s natural right to cultural liberty has been restored, to freely share and build upon published works.

The question is, at what moment in the American Prohibition Era did the allegorical Bootlegger Bay case occur? I suspect it would have occurred around 1925 when by that time in New York City alone there were anywhere from 30,000 to 100,000 speakeasy clubs. Given repeal occurred 8 years later, that puts the date for the abolition of copyright somewhere around 2017.

Not long now…

Freedom of speech means you should be able to say or publish anything at any time – without physical restraint or interference, e.g. censorship.

Liberty means there are repercussions for certain speech, especially authoritative publication, e.g. malicious falsehood, violations of privacy, threats to life.

Thus if you publish the knowledge (obtained by a tip-off from a burglar who snuck into Fred Smith’s bedroom via a poorly secured window and peeked into their sock drawer) that Fred Smith has pink socks, then this is to compound the burglar’s privacy violation.

Fred Smith own’s the colour of his socks, but the colour of his socks is not intellectual property, i.e. it can’t be transferred because it is not identifiable as a distinct/independent work and thus can’t comprise property. However, his socks can be transferred of course, as material and intellectual property, given the sock represents both a material as well as an intellectual work. The colour of the socks comprises part of the intellectual work that the socks represent (their shape, design, weave, fibre, pattern, colour, etc.).

If the burglar had taken a photo of the socks then this would constitute IP theft, since the image of the sock captures a large part of the intellectual work the sock comprises, and is also able to identify the intellectual work.

However, no-one has a natural right to a monopoly, whether in the material design of the sock or its visual appearance. Once you’ve bought Fred Smith’s socks (if he wanted to sell them) you can naturally copy them to your heart’s content – and are also as a consequence able to publicise the fact that Fred sold you some pink socks (if you don’t think your reputation will suffer for such an indiscretion). Then again, if by some coincidence you unwittingly produced a pair of socks that were indistinguishable from Fred’s, well, that’s fine too (however you won’t necessarily know that Fred has a pair just like them).

This is how intellectual property works without monopoly. There are still laws against copying intellectual work, it’s just that they’re restored in alignment with natural law, i.e. you can copy what you privately possess, but not that which someone else privately possesses. Your freedom is not unethically constrained by being prohibited from invading or violating another’s privacy.

But most importantly, your freedom is not constrained due to the granting of unnatural monopolies of copyright and patent to mass producers of copies and devices. Such monopolies are unethical and should be abolished.

Without monopoly, intellectual property is natural, along with natural intellectual property rights.

I’m pleased to be introduced by Jon Newton of P2PNet to Jeff Tucker’s incisive article observing the prohibition era of the 21^st century – illicit distribution of pop the culture rather than of pop the beverage.

So let’s infringe LewRockwell.com’s copyright and thumb our noses at the prohibition of copying another’s published work without their permission:

The Mercantilism of Our Time

by Jeffrey A. Tucker

Someone handed me a book the other day – a cult classic among music geeks – and urged me to read it, and, when I had finished, sign my name in the front cover. That way I could be added to the already long list of readers in the front cover, each of whom add added his or her scrawl to the book after having read it.

How charming!

Except for one thing: this is complete violation of the spirit of intellectual property law. All these readers were sharing the same book instead of buying a new copy. Think of the revenue lost to the publisher and the royalties lost to the author! Why, if this gets out of hand, no one will ever write or publish again! These readers are all pirates and thieves, and they should probably be subject to prosecution.

So goes the rationale behind intellectual property law. It’s what economists call a “producers’ policy,” design to create maximum revenue for one side of the economic exchange, consumers be damned. In that sense, it is exactly like trade protection, a shortsighted policy that stymies growth, robs consumers, and subsidizes inefficiency. It’s Bastiat’s “petition of the candlemakers against the sun” all over again.

Apply the IP principle consistently and it’s a wonder we tolerate public libraries, where people are encouraged to share the same copy of a book rather than buy a new copy. Isn’t this also an institutionalized form of piracy?

The defenders of IP would have to admit that it is. They are often driven to crazy extremes in sticking the claim that copying is a form of theft.

I asked one emphatic correspondent about the ethics of the following case. I see a guy in a blue shirt and like it, so I respond by wearing one too. Is this immoral?

No, he said, because the color blue occurs in nature.

What if a person draws a yellow happy face on the blue shirt? Can I copy that? No, he said, this would be immoral. I must ask his permission and gain his consent. Actually, it’s even worse than this case suggests. If even one person had previously worn a blue shirt with a happy face, no one else on the planet would be able to do that without seeking consent.

It should be obvious that if everyone were required to seek the permission for the use of every infinitely reproducible thing that “belongs” to someone else – every word, phrase, look, vocal inflection, chord progression, arrangement of letters, hair style, technique, or whatever – or if we were really to suppose that only person may possess the unique instant of any of these things, civilization would come to a grinding halt.

Sadly, this is where our laws are tending. Right now, there are laws being considered that would step up IP enforcement to the point of clear absurdity. Just last week, YouTube removed the background music of countless videos for copyright reasons, even though such videos help popularize the music. Even home performances of songs written in the 1930s – young kids playing piano and singing – were taken down at the behest of producers.

People are talking about extending patents to sports moves, extending copyright to story lines, imposing a central plan on computer design to comply with patents, forcing everyone on the planet to obey U.S.-style IP laws by means of military force. Kids are going to jail, institutions are hiring internal police forces to watch for IP violations, and an entire generation is growing up with a deeply cynical attitude toward the entire business of law.

We are at a prohibition-style moment with regard to IP, just as with liquor in the 1920s. The war on the banned thing isn’t working. Those in power face the choice of stepping it up even further and thereby imposing a militarized state in place of anything resembling freedom, or they can admit that the current configuration of law has no future and bring some rationality to the question. Other societies have indeed crushed innovation with this very impulse.

Do you know why we celebrate Columbus Day instead of Cheng Ho Day? Cheng Ho was a great Chinese explorer who, in the early 15th century, took his fleets to Africa and the Middle East, but he was forced to stop when the elites in the home country began to feel threatened by his discoveries. The Chinese government won the war on exploration, and became static and inward. You can win a war on progress but the gains over the long term are few.

In addition to relaying the above story, the authors of Against Intellectual Monopoly, in the last chapter of their fantastic book, make a case for the complete dismantling of the law. “Intellectual property is a cancer,” they write. “The goal must be not merely to make the cancer more benign but ultimately to get rid of it entirely.”

The authors do not leave at that. They are intellectuals of the real world. They first make a case against any more expansions of bad laws, and lay out some reform proposals: shortening patent and copyright terms, changing burden of proof for originality, eliminate ridiculous redundancy trials for drugs, and the like. The authors even volunteer their time to help craft legislation. But the really hard work here is intellectual, since the pro-IP bias is so entrenched. The authors take the pure abolitionist position as a way of shocking us out of our stupor.

Is change possible? Of course. It was thought in the middle ages that most all products required monopoly production. The salt producer would enter into an agreement with the ruler. The ruler would promise a monopoly in exchange for a share of the revenue. It was thought that this would guarantee access to a valuable commodity. How can anyone make a buck without a guarantee that his hard work would be compensated?

Well, it took time but eventually people realized that competition and markets actually do provide, as implausible as it may seem. As the centuries moved on, markets became ever freer, and we no longer believe that the king must confer a special status on any producer. They still do it, of course, but mostly for open reasons of political patronage.

And yet in this one area of “intellectual property,” all the old mercantilist myths survive. People still believe that a state grant of monopoly privilege is necessary for the market to work. The myth has now been crushed with this book. So now the laws can be beaten back and they are being beaten back in the age of digital media.

Realize that for young people today, the initials RIAA and MPAA are the most hated on the planet – the equivalent of the IRS of a past generation. The heck of it is that these are private entities. Think what this means.

Capitalists of the world, please pay attention: you have a serious problem when an entire generation is being raised to HATE private, capitalistic institutions. Now, you and I know that these institutions are doing something illegitimate, namely enforcing “intellectual property,” which is really nothing but state coercion. Still, this besmirches the reputation of free markets. So too is a generation of socialists being raised to hate U.S. foreign policy on the belief that its export of IP is a form of capitalist imperialism.

For these reasons, no one has a stronger interest in abolishing intellectual property than supporters of capitalism.

I said at the beginning of this series that it has taken me fully six years to think through these issues. The book by Boldrine and Levine broke through the reservations I had that remained. In the meantime, I’ve received hundreds of messages to the effect that other readers have made the jump too. Whatever is holding you back, I beg to you read this account. I personally consider it to be one of the most mind-blowing books I’ve ever encountered, and so now I join the armies of people who are demanding an end to a system that threatens our way of life in the most fundamental way.

For this reason, this book is seminal, not only for our times, but for the entire history of liberty. It has clarified a point that has been a source of confusion for many years, and put it front and center in the current debate.

It might need correcting in places and I have my own knits to pick over their neoclassical framework and talk of social costs and the like, but these are petty concerns as compared with the overall framework. What they have done is marvelous and extremely important.

February 9, 2009

Jeffrey Tucker [send him mail] is editorial vice president of www.Mises.org .

It’s good to see Rob Myers observe that freedom is for people – not inanimate objects, not intellectual works, nor the culture formed from them.

It is the human being that is to be free, not their works.

We can chain our books to the shelves of our libraries without compunction for their lack of liberty, but we should not manacle the hands of those we sell them to lest they place what is now rightfully their property in a photocopier.

Rob also enumerates other terms people use and abuse when describing the epiphenomena of cultural liberty, e.g. “Commons”, “Gift Economy”, “Quid Pro Quo”, etc.

I’d suggest that ‘Freedom’ can also be abused as a term (not least ‘free’).

It is not absolute freedom that is the ideal to be pursued, but freedom ethically constrained.

Otherwise, if ‘freedom’ is to be misconstrued as an inherently noble objective, we have such aspirations as “the freedom to choose how my work can be used, and what copyright license I give” and “the freedom to inspect or sequester source code from the author’s premises”.

‘Freedom’ is not a trump card to play when seeking to violate another’s right. It alleges an unethical constraint when asserting one’s rightful liberty against its suspension by the privilege of another.

We may express a desire to have the freedom to park our car on our neighbour’s drive, but the mere citing of an aspiration of ‘freedom’ cannot invoke a right, as if that invocation could then trump our neighbour’s natural right to privacy.

Freedom is a lack of constraint. It is neither intrinsically noble nor inherently ethical.

Ethical freedom is a lack of unethical constraint, and is more succinctly termed ‘liberty’.

We do not have a right to freedom. We have a right to liberty – freedom constrained only by the equal rights of others.