The Intellectual Propertarian/Environmentalist Analogy

A restrictive covenant approach would be hard to enforce in a meaningful way. If I buy your book and give it to my friend who prints and sells a thousand copies, you will only know of my friend's activity but you have no claim against him because he has made no covenant with you. I'm the one who has violated the agreement I entered into at time of purchase. But no one has any incentive to reveal that I'm the buyer who renegged. And in a libertarian legal framework, you couldn't use the courts to force my friend to identify me.

It's not enough to bind whoever you sell your repackaged-covenant work to; you also have to bind anyone else who might independently come up with a similar work - people who might honestly have never even heard of you or your ideas, or might have reabsorbed it from some third-generation derivative of your original work. You might think something like Superman is well-embedded into the zeitgeist by now, but no! Someone owns that. Now pay up.

Hence a state, which argues instead that everyone has signed a social contract of some sort with each other. But that wouldn't be very libertarian.

Yep, as others have said here, the problem with restrictive covenants (as compared to the current IP regime) is that third parties cannot be bound by them, and thus liability for infringement will be nigh impossible to assign correctly: only the "original infringer" can be held liable.

Bryan,

I strongly encourage you to at least skim Stephan's own article, "Against Intellectual Property" [.pdf]. Before reading that, I am pretty sure I took the original Rothbardian view that copyrights were justifiable property rights, whereas patents were illegitimate State-enforced monopolies. Stephan's article blew up my framework probably more than any single article in political economy has ever done.

I'm not saying I agree 100% with Stephan's views in the paper, I'm just saying he gives a very persuasive theoretical and empirical case that IP is dumb. He also deals with common objections and things like restricted covenants.

The other problem with restrictive covenants is that once one person breaks them, they're done for.

If I ignore (and delete, if necessary) the covenant on the new Covenant album and upload it to the internet, then without an IP structure broadly similar to the current one there's no legal means to stop people from redistributing the uploaded version. Even if I'm caught and punished, the album is still out there, and that's little consolation to whoever was counting on a monopoly.

Once it's out in the wild, it's out in the wild.

Beyond just the enforceability to third parties, these covenants are barely enforceable to the second party! At least in my conception of libertarianism, you have to be able to enforce the contracts you sign, or else they're useless. I don't believe most IP contracts would be enforceable without a state. (And even with the state, the IP regime is turning out to be less and less enforceable. For all the success of the iTunes Music Store and Hulu, piracy is still rampant among certain age groups...lord only knows what it'll be like when those age groups are the oldest members of society. But I sure as hell can't wait to find out!)

"Consider for example, the issue of whether full-blooded copyright is legitimate. Some libertarians argue it isn't legitimate, but claim that its effect can be obtained if authors and publishers include in the contract when they sell books a provision prohibiting its unauthorized printing, and then sue any book pirate for breach of contract; apparently they forget that some people sometimes lose books and others find them."

Robert Nozick, Anarchy, State and Utopia.

All of the objections to the restrictive covenant scheme Bryan suggests come down to the expected value of the restrictive covenant in view of natural termination of such a covenant, fair use loopholes, &c., &c.

The central question of what balance should be struck between exclusive rights and access to information is a profoundly difficult one, both theoretically and empirically. On my view, the best way to think of IP rights is as a substrate for transactions that would otherwise be much more expensive to complete. I think this view has something in common with the view the protocol theory I see Kling has published.

Here's my libertarian take on IP, which I wrote in part in response to Kinsella's essay in Liberty magazine:

http://athousandnations.com/2009/12/05/why-libertarians-should-stop-worrying-and-learn-to-love-intellectual-property/

To respond directly to Kinsella's quoted remarks, I will say that some IP advocates -- especially musicians and music studios who have suffered through the technological shift in distribution from analog to digital -- do tend to take on the ideological tenor of "religious" environmentalists. In both cases, the passion seems to be driven by a sense of loss.

Kinsella is right, of course, that the sense of loss is (usually!) not derived from any infringement of tangible rights. But so what? People get angry about all sorts of things. I don't see how this matters to the core question of whether IP rights are justified, whether it be on libertarian grounds or other. Sometimes it seems the questions may be too close to home for Kinsella.