In the early ‘80s, the Los Angeles area was an intellectual feast for libertarians of every stripe because it exploded with supper clubs, student groups, debates, conferences, small magazines, and larger-than-life personalities. The interaction was so politically intimate that a resident wit described libertarians as people “who make a living by selling newsletters to each other.”

One intellectual circle in particular had a profound impact on my intellectual evolution: the anarcho-capitalists and agorists who banded around Samuel Edward Konkin III or SEK3, his preferred moniker. SEK3 exerted the largest influence, by far. The impact was partly because he was the engine of agorism—the philosophy that advocates voluntary exchanges through counter-economics in order to achieve a peaceful revolution. But SEK3’s influence on me came mostly from his stand on intellectual property (IP), which is lesser known. His classic presentation of agorism, New Libertarian Manifesto, overshadows his pioneering article on IP abolitionism, “Copywrongs.” The article concludes, “Copyright has nothing to do with creativity, incentive, just desserts, fruits of labour or any other element of the moral, free market. It is a creature of the State, the Vampire’s little bat. And, as far as I’m concerned, the word should be copywrong.”

SEK3 was one of the earliest voices in the modern libertarian movement to advocate the abolition of intellectual property (IP) in both copyright and patents; his stand could be called agorist anti-IP.

Although rejecting IP is a popular position today, it was almost unheard of then. In the early ‘80s, the default position was to accept IP. Even some who lived in the AnarchoVillage embraced IP. (AnarchoVillage was an apartment complex in Long Beach, California over which SEK3 reigned; it was named after SEK3’s former six-floor walk-up apartment in NYC, which he dubbed the AnarchoSlum.) The main pro-IP AnarchoVillager was the science-fiction writer J. Neil Schulman. Although he and SEK3 were close companions and almost twins ideologically, they parted ways on IP, with Schulman going on to develop his own unique theory of property in ideas. On the other hand, other AnarchoVillagers, like the science-fiction writer Victor Koman were zealously anti-IP. Indeed, I credit Koman with changing a key view I held on copyright during a party where neither of us, fortunately, had consumed too much alcohol to be coherent or to not remember conversations from the night before. He did so by asking me one question, “How can you own something that is in my mind?” Given my deep commitment to self-ownership, I had to answer, “I can’t.”

My Journey to Anti-IP

I was exposed to IP in my mid-teens through the work of Ayn Rand. Capitalism: The Unknown Ideal devotes a chapter to “Patents and Copyrights” in which Rand states her unequivocal support of both as matters of morality and of law. Frankly, I did not give IP much thought since it seemed obvious to a teenaged me that people own what they create, whether the property is tangible or not. This was the only position I had ever heard.

The first crack in my confidence did not come from effective counterarguments but from my doubts about certain IP advocates. Andrew Joseph Galambos is a case in point. A brilliant astrophysicist and philosopher, he lived in the Los Angeles area at the same time I did and had a small but dedicated following. Galambos was an IP absolutist. In his essay “Against Intellectual Property,” the IP attorney and anti-IP scholar Stephan Kinsella notes that Galambos “took his own ideas to ridiculous lengths… dropping a nickel in a fund box every time he used the word ‘liberty,’ as a royalty to the descendants of Thomas Paine, the alleged ‘inventor’ of the word ‘liberty’.” This tale may be apocryphal; it is difficult to judge because those who attended his classes were sworn to secrecy. But the fund-box story represents where the IP argument goes when taken to its extreme.  As SEK3 states in “Copywrongs,” “A. J. Galambos, bless his anarchoheart, attempted to take copyrights and patents to their logical conclusion. Every time we break a stick, Ug The First should collect a royalty. Ideas are property, he says; madness and chaos result.”

About this time, I no longer believed in the extreme IP of Rand. Instead, I swapped in a belief in expiring IP. Even this position made me vaguely uneasy, however, because no other type of property ownership had an expiration date.

A turning point came in my early twenties when I delved into the 19^th-century individualist anarchists. The extreme IP views of Lysander Spooner especially made me sit back in my seat. His pamphlet, The Law of Intellectual Property; or An Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas, states, “So absolute is an author’s right of dominion over his ideas, that he may forbid their being communicated even by the human voice, if he so please.” Spooner explains further, “An author may, if he please, by express contract, restrict the communication of his ideas, beyond the first purchasers of the books, which he himself prints, or licenses to be printed; and thus make it necessary for every man to buy a book, and pay tribute on it to the author, in order to become acquainted with the ideas.”

I admired Spooner. I was predisposed to give him the benefit of the doubt, but there were two obstacles. First, I did not see how an IP contract to not transmit ideas or share a book could work. All it would take is one lost book to be found by a stranger for the IP claim to dissolve, for example. And I have always been suspicious of unenforceable contracts. Second, I began to compile A Comprehensive index: Liberty 1881-1908—an iconic periodical published by Benjamin Tucker. Within the pages of Liberty, IP became a huge debate, with Tucker taking a hardline abolitionist view. (An extensive analysis of this debate is here.)

As I waded into the thick of Tucker’s arguments, my confidence in IP did more than crack; it crumbled in stages. The first stage: I narrowed my belief in IP down to copyright and abandoned the idea that inventions could be owned. I abandoned patents as valid IP. This was the result of Liberty’s patent debate. In the July 7th, 1888 issue, Tucker analyzed an article by Henry George in which George stated that ownership came from production, not discovery. The labor of discovery was the mental effort of working out operating principles of a machine; since the principles existed in nature, they could not be claimed by one man. The labor of production was the construction of a specific machine from raw materials. The specific machine a man produced, such as a wheelbarrow, was his property but any other man could freely produce his own wheelbarrow. For one thing, it was quite possible for two men to discover and implement the same operating principle at the same time. The invention of calculus, for example, is credited to both Isaac Newton and Gottfried Leibniz. Even without simultaneous invention, however, no one had the right to prevent another from applying the laws of nature to raw material.

George rejected patents, describing them as ownership claims on ideas that manipulated the laws of nature through machinery. He wrote, “No man can justly claim ownership in natural laws, nor in any of the potentialities which nature hold for it.” To those who protested that only the specifics of the machine, not natural law, was being claimed, George replied that the principles upon which the machines operated were intrinsic in nature. For example, a wind mill was nothing more than an expression of how the force of wind pushing against a surface could produce power. Thus, every patent reduced to an ownership claim over an expression of nature.

As I mentioned, I abandoned patents.

George then distinguished between patents and copyright, arguing that copyright was a defensible form of IP. The labor expended on writing was not discovery but creation, and it gave the creator an ownership right to the specific arrangement of words, not merely to a specific instance of the arrangement—that is, to a book.

Tucker disagreed. “The same argument that demolishes the right of the inventor demolishes the right of the author.” First, Tucker denied that literature was pure creation rather than a discovery of existing principles. Literature was nothing more than an arrangement of the alphabet according to certain principles; both the alphabet and these principles pre-existed any piece of literature and were available to anyone to use in any manner. No one could reasonably claim ownership in a particular combination of the alphabet or in a particular style of writing.

A difference between the debates on patents and on copyright was the issue of simultaneous invention. The possibility of independently creating a piece of literature that duplicated the words and style of an earlier one was considered beyond possibility. Yet Tucker staunchly defended this possibility. Moreover, he contended that a style of expression was a type of idea in and of itself. Thus, one man had no more right to monopolize the arrangement of words in a poem than he had to claim ownership of the arrangement of raw materials that resulted in a generator. Tucker dismissed the probability of duplication argument with the words, “To discuss the degrees of probability… is to shoot wide of the mark. Such questions as this are not to be decided by rule of thumb or by the law of chances, but in accordance with some general principle….[A]mong the things not logically impossible, I know of few nearer the limit of possibility than that I should ever desire to publish Liberty in the middle of the desert of Sahara; nevertheless, this would scarcely justify any great political power in giving Stanley a right to stake out a claim comprising that entire region and forbid me to set up a printing press.” In short, a question of rights must be determined by the general principles, not by probability.

Others on the anti-IP side of the Liberty debate attempted reductio ad absurdum. A contributor Tak Kak pointed to a large inconsistency in the pro-copyright arguments. “If a printer may not copy new books,” commented Tak Kak, “of course the shoemaker may not copy new shoes.” Such a denial, of course, would be widely considered a violation of the shoemaker’s liberty. “[T]he shoemaker or printer with materials and tools in hand must copy what is in demand or starve. If he be not permitted to use his tools and his material in fashioning any goods that he knows how to fashion, and chooses to fashion, his liberty and his property are frustrated at one stroke.”

Chairs, hairstyles, clothing, flower gardens, room decor and all other forms of expression have unique styles. The style of a flower arrangement may be as unique as the style of a sonnet, yet it was only to the sonnet that special privileges of legal protection were extended. Moreover, to be consistent, the copyright advocate would have to admit that all speech is a unique, personal form of expression. Therefore, a man should be entitled to legally protect every sentence he utters so that no one thereafter can speak this arrangement of words without his consent.

While I was indexing the IP-debate section of Liberty, I brought up some of the arguments I was mulling to SEK3 during one of our lunches. Many people found SEK3 to be a bit annoying in how he argued ideas. There was a persistence and casual assurance about him that irritated some but I found it charming. SEK3 was always available and “up” for gab-sessions that lasted for hours. And he had an uncanny ability to find the strand of thought in your argument which could be reduced to absurdity. Again, some people bitterly resented this ability because they thought he made them look foolish, and he meant to do so. SEK3 now used the technique on me and chipped away at my acceptance of copyright. After a few more discussions and having concluded my indexing of the IP debate in Liberty, I jettisoned IP altogether.

The Great Debate of 1983

Shortly after my conversion experience, I was asked to debate J. Neil Schulman on the topic of copyright at a Westwood supper club. The debate came about largely because both SEK3 and I pushed the IP issue at supper clubs and other gatherings. It was becoming an active issue in Los Angeles in a manner that I do not believe was true of libertarianism in any other city. In a break from the norm, the meeting was held in a hotel rather than a restaurant. The Westwood club scrapped the dinner part of the evening in order to accommodate a longer program of debate, rebuttal, Q&A. (SEK3 may well have been the more logical choice but, as I said, he irritated some people.) The event was a rousing success in several ways. First, the large room was filled beyond capacity, with people choosing to spill out into the hall and to stand for hours rather than leave. Brad (now my husband of over 30 years) attended as the representative of the Society for Libertarian Life. SLL offered 2 buttons: one pro- and one anti-copyright; as I remember, they sold out. SEK3 sat in the front row, grinning as broadly as a man can with a mouthful of pipe. At some points in the debate, I heard his chesty chuckle. What a good mood that man was in!

It was a long evening, partly due to the fact that J. Neil went over his 20-minute time limit by about 30 minutes. But not a single audience member left, and the Q&A was unusually lively. At first, I was disappointed because the questions were overwhelmingly directed toward J. Neil. But, then, I realized it was because few people were arguing with my position. Everyone was taking exception to J. Neil’s presentation of what he called “logorights”–his unique theory of intellectual property. At that point, I relaxed until, finally, the moderator had to cut off questions because the gathering was going beyond the time for which the room had been rented. A group of us adjourned to a Good Earth restaurant to continue the discussion.

1. Neil wrote up his side of the debate and later published it as an article entitled “Logorights” (1990). Since I always write out my presentations, my side required only slight polishing to produce “Contra Copyright” (1985) which appeared in an early issue of The Voluntaryist newsletter. Fortunately, Victor Koman retained a recording of the debate and, at my request many years later, he mastered and mixed it. The recorded debate can be found here.

As parting words, I must credit SEK3 on one other point regarding IP. Several friends and many strangers told me that my position on IP was ridiculous, and it would ruin my reputation if I pursued it. I remember getting into a fight with a friend—something I rarely do—because he publicly announced that anti-IP was the only positively silly thing he had ever heard me argue, and that I should be embarrassed for myself. This is often the general response of people who hear anti-IP arguments for the first time. But I thought I was right, so I kept on being “silly.” Such social censure might have made me flinch, but having SEK3 as a constant back-up and source of encouragement was a godsend. And, oh, how he would have hated to have himself so described.