Volume 18, Number 3, September, 2000



Over the past few months, the Napster lawsuit has made many people aware of the social, economic, and legal impact of computers and the Internet. Easy copying of digital musical recordings has had an economic impact in the hundreds of millions of dollars. Such cases will become even mort frequent in the future, as intellectual property becomes a larger share of total wealth and as the means of reproduction become cheaper.

From a libertarian point of view, the legal issues seem simple at first glance. The recording industry's lawyers pointed out that they had intellectual property rights in the music they distributed and that the copying of that music violated those property rights. Napster's creators were not simply making available a program that could be used to do this; they were maintaining a commutations channel for the exchange of music files, a very large share of which were someone else's intellectual property. In other words, their actions were supporting a market for the exchange of stolen goods. The exact extent of the damage was debatable, but clearly it was huge.

But the problem is hardly going to be solved by any legal decision about Napster. The digital exchange of music files is technologically feasible, which means that other software for that purpose can also be written-and in fact has been written. Much of that software does not depend on a central site for music exchanges, but on a network of contacts; and, in fact it is perfectly possible for the software itself to be distributed the same way. In fact the entire process looks a lot like the kind of decentralized system of voluntary cooperation that libertarians normally admire; and any attempt to shut it down seems to require massive governmental regulation in an arena that has so far been blessed by its absence. Whose side should libertarians be on?

In approaching this case and others like it, it may be necessary to look at fundamental questions about intellectual property. Copyright as we know it is not part of the fundamental principles of natural justice that Roman lawyers called ius gentium. It was created during the Renaissance, in response to the development of new technology, the printing press. Now more new technology has emerged, which effectively puts a printing press on every desktop—for example, the one that is producing this issue of Prometheus. Copyright as it is now defined may fit this new technology as poorly as it would have fit the hand-copied texts of ancient Rome.

From a libertarian point of view, there's an undeniable pleasure in seeing a major social issue where one side's case is an appeal to property rights, and where it is widely accepted that that appeal is legitimate. There's also a pleasure in seeing a defense of the rights of individuals to engage in voluntary, decentralized action via the Internet. At least in this case we are choosing between two rights, not two wrongs.

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