Intellectual Property

How Writers Coped Without Copyright

What would happen if copyright didn't protect against piracy? The answer can be found in history.

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Without Copyrights: Privacy, Publishing, and the Public Domain, by Robert Spoo, Oxford University Press, 355 pages, $35

What would happen if authors and publishers could not count on copyright to protect them from piracy? History hints at the answer. From the founding of the United States until well into the 20th century, domestic copyright laws generally denied foreign authors any form of legal redress. Yet as the legal scholar Robert Spoo explains in Without Copyrights, they developed other stratagems to recoup the costs of writing, producing, and marketing their works.

It wasn't simple, and it wasn't always pretty, but it kept the American public well supplied with global literature. In Spoo's able recounting, moreover, it gave rise to some entertaining tales of literary brawls and criminal obscenity.

Until the Chace Act was passed in 1891, only citizens and residents of the U.S. could qualify for American copyrights. Even thereafter, for another 60 years or so, domestic laws continued to deny copyrights to non-American authors who first manufactured or published their works abroad, or who failed to satisfy the stringent statutory formalities of U.S. copyright law. Few foreign authors even tried to run that legal gantlet; many who tried nonetheless failed. Through these openly and avowedly protectionist provisions, U.S. copyright law subsidized domestic publishers, typesetters, printers, binders, and readers. It also enriched the public domain with the works of foreign authors.

Spoo provides a considerable service simply in recreating that lost legal world, which cannot fail to seem bizarrely xenophobic to anyone familiar with how the law works now. (For the most part, copyrights automatically apply across national boundaries.) But that merely sets the stage for Spoo's main task: describing how authors and publishers adapted to a land without copyright.

Especially prior to the Chace Act, publishers relied on voluntary and extralegal (but nonetheless quite effective) norms developed under the name of "trade courtesy," a practice through which many of the larger U.S. publishing houses acted as if foreign authors enjoyed domestic copyrights anyway. Reputable publishers would respect any peer's claim—typically made via an advertisement in a trade journal—to have purchased the advance sheets of a new book from its overseas publisher or to have reached an "first publication" agreement with the author.

Punishments for breaching trade courtesy ran from verbal jousting to public shaming (usually via missives in the same trade journals that carried first publication claims) to predatory pricing (by which the rightful publisher would sell at a loss to deny its counterpart any profits) to retaliation (by poaching on the foreign titles claimed by the offending publisher). Notably absent from this list of sanctions: lawsuits.

Trade courtesy developed into a coherent and elaborate system of informal norms, giving U.S. publishers the confidence to risk printing, marketing, and distributing foreign works unprotected by copyrights. It also worked to the advantage of foreign authors, who won payments from U.S. publishers and new readers. Trade courtesy did not afford complete control over unauthorized reproductions, of course; not even copyright can promise that. Rogue publishers flouted the rules and flooded the market with shoddy editions of especially popular works. Though denigrated as pirates by their more respectable counterparts, the cheap reprinters proclaimed themselves as champions of the public against a conspiracy in restraint of trade. Through it all, foreign authors kept writing, domestic publishers kept printing, and the American public kept reading.

Though Spoo does an able job of describing trade courtesy, his real interest lies elsewhere. Trade courtesy declined in the late 1800s due not only to the Chace Act but to the rise of antitrust laws and of literary agents—who, to the chagrin of domestic publishers, helped foreign authors navigate the hazards of U.S. law. Though the informal practices of trade courtesy lived on in diluted form, federal and state laws had a larger impact on foreign modernist authors, such as James Joyce and Ezra Pound, and their U.S. publishers.

The problem, in brief: Though the Chace Act finally allowed foreign authors to enjoy U.S. copyrights, anti-obscenity laws made it especially risky for avant-garde authors to do so. To qualify for domestic copyright protection, foreign authors had to carefully arrange to have their works published at least as early in the United States as abroad and to officially register their works with the U.S. Copyright Office. But by so involving themselves in the local publication of their works, foreign authors and their authorized publishers rendered themselves susceptible to prosecution if their works were obscene under U.S. law. That proved all too likely for modernists, who relished flouting convention.

Spoo spends considerable time laying out the details of this legal conundrum, an exercise that affords the reader many a good tale of elaborate subterfuges, high-profile litigation, and racy publications. Few other works offer so detailed an account of how law and culture interact. Far from just a dry legal scholar, Spoo clearly knows and loves modernist literature, and he convincingly argues that little-known quirks of U.S. law had a powerful impact on how the world came to receive such canonical novels as James Joyce's Ulysses and D.H. Lawrence's Lady Chatterley's Lover.

Spoo's enthusiasm sometimes transports him beyond the patience of lay readers. Only hardcore fans of the poet Ezra Pound will find his somewhat puerile musings on the ideal form of copyright law interesting. Yet we must allow a specialist such as Spoo such liberties. It seems a small price to pay for so complete an account of an unjustly neglected corner of history.

Spoo cannot fully answer the question of what would happen if writers and publishers could not count on copyright to protect them from piracy. After all, the foreign authors Spoo discusses faced the denial of their copyright claims only in the U.S.; in their home countries, they enjoyed all the usual privileges of intellectual property law. There, they and their local publishers could risk putting their works before the public without undue worry that pirates would step in to reap the benefits of their labors. So Spoo's book cannot teach us what would happen if copyright disappeared from the entire world.  It can, however, reveal what happened when it disappeared from some people, in part of the world.

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  1. Snow and ice all over the place in Dallas. Man, do. I love “global warming”!

    1. Hey Dude, Catch up ta modern times, willya? It’s not “global warmerering” any more, it is “climate change”!!! This NEW way, no matter WHAT happens, we can claim it was because of YOU and YOUR excessive effluents of C-O-2 and methane! So it’s too hot? Blame Mike M. ? It’s too cold? Blame Mike M. ? “M” stands for “Methane”, don’t, eh?!?!?! You bin eatin’ too many baked beans, eh?!?!?! I’m ON to you, Dude! STOP that, now, or I will be tellin’ Al Gore on ya!

    2. 29 degrees here in Austin. Was 84 degrees when I arrived 3 days ago.

      So, “climate change”? Very very rapid climate change.

  2. to recoup the costs of writing, producing, and marketing their works.

    Yeah, I’m sure that’s where the costs were, and not in the labor or materials needed to disseminate the writing in a physical form.

    1. Producing and marketing are fine words that cover a lot of ground. Producing covers labor and materials, marketing sits on the throne over distribution.

      1. Fair enough, I didn’t give any thought to what those words included. I did wonder what constituted marketing before TV. The Sears catalog I guess?

        1. Radio, billboards, newspapers, anyplace you could paint or show a picture to someone’s mind.

          1. Plus all the stuff that swirls around those, from the overall campaign to the means of delivery of the product.

          2. Radio, billboards, newspapers,

            I can invent nouns too. Billpapers, Newsboards, etc

            (scrambles to come up with explanation for how I know what a book is but not radio or newspapers….)

            1. Thought you were asking about things before TV, so I gave you a few items. Left out telegraph, because I’ve never really examined that in this context, but I am sure it played a role.

              1. Your mistake was not calibrating your sarcasmometer.

  3. Intellectual property is a violation of natural law.

    The products of my mind and my labor are mine, even if someone else thought them first.

    1. Natural Law is a fiction.

      1. Fiction is covered by copyright law.

      2. It’s only wrong to kill babies because the government said so, don’t ya know?

    2. If someone thought who thought of them first put them in your mind i.e.through a book, then they are not the product of your mind.

      Your assertion is based on a faulty premise.

      1. Your statement is irrelevant to what he said, thoughts are not exclusive to a single person. More than one person can have them without them having been “stolen” from the original thinker. The original thinker’s idea doesn’t disappear from their head.

        1. I’m not well versed in this subject so I’d enjoy a discussion about this.

          My gut reaction is that rob has a good point ? your ideas are your own, assuming that you actually did come up with them originally. Proving that an idea was stolen seems next to impossible in some cases, but certainly not in all. To take an extreme example, the chances of two people writing nearly identical books is effectively zero. So it seems to me that copyright and IP laws have an important place in property rights more generally. But how do you navigate the gray area where originality is harder to prove?

          1. My point is that what some people are calling “stealing” here isn’t stealing in the normal property sense. Usually when we say that I’ve stolen an object from you we’re saying I’ve taken it from you and you no longer have it. No one says that making a copy of, say, your bed is stealing your bed. However when it comes to IP simply copying an idea is called “stealing”, when it doesn’t follow the normal parameters of what “stealing” refers to.

            1. And I think that is a fair point. But ideas can carry value every bit as much as physical objects can. If that idea is exchanged with someone else, it seems right to me that the value accrues to the originator of the idea.

              But I suppose a counter argument could be that the idea only has value insofar as it is acted upon. I have tons of ideas in my head but unless I transfer them, either by acting on them to make a physical object or sharing them with someone else, there is no way to assign them value. In that sense, the person who acts on the idea should rightly profit from it.

              1. The more I think about it, the more the second approach appeals to me (with the qualification that I haven’t thought about it too much). But I don’t think that rules out copyrights or something similar to them. If I transfer an idea to someone, can’t I attach certain preconditions to that exchange via a contract? And couldn’t that include something very similar to copyright?

                1. If I transfer an idea to someone, can’t I attach certain preconditions to that exchange via a contract?

                  Sure. But if I dont sign a contract, I can reverse engineer to my heart’s content.

                  But copyright isnt a contract. Its government force.

                  1. I was more brainstorming a way of getting the protections of copyright laws through contracts. It doesn’t seem unworkable to me at first glance. But I really don’t know enough to say that there would be some huge advantage over the current system.

                    1. I was more brainstorming a way of getting the protections of copyright laws through contracts. It doesn’t seem unworkable to me at first glance.

                      That’s because copyrights and patents are not any type of contract at all.

                      Contracts are voluntary agreements between two or more parties that involve some type of exchange.

                      Copyright and patents are grants of monopoly by a government, that then uses coercion against third parties that violate that monopoly.

                    2. Zildjain has maintained their trade secret since 1623.

                      Their key has been to only pass the secret onto the next generation of owners. They are on the 14th generation now.

                    3. Although to be fair, Sabian probably has their own copy of the special sauce from when the family split up a while back.

              2. Ideas have the same value as coal or other natural resources. Just because someone finds a deposit of coal, doesn’t mean he owns the world’s supply of coal. IP, and copyright laws only make it more difficult for more ideas to get out.

                Coal, in it’s static form is as useless as any other rock, just like an idea that hasn’t been capitalized on. In order to steal, you must first take from someone else. Ideas in and of themselves offer no value. It is what we produce with them that creates value.

            2. However when it comes to IP simply copying an idea is called “stealing”, when it doesn’t follow the normal parameters of what “stealing” refers to.

              The economic jargon for what you are describing is rivalry. Rivalrous goods cannot be used by two or more people simultaneously.

          2. I disagree with the need to even be orginal.

            If I think it, it is mine. The principle of self-ownership demands that all of my thoughts belong to me. Even copying requires thinking of the thought, which makes it mine.

            I do think the argument is stronger (maybe) with labor. If I build a widget, using my material and my labor and my brain to make it, it is mine. And if I then want to sell it, that is fine, because it is my property. Your patent can go fuck itself.

            I do support trademarks, as that is just fraud protection.

            1. I guess I’m not entirely sure what you are arguing for here. That if you read a book, you should be able to print your own copies and sell them without compensating the original author? Because after reading it the words were processed by your brain, and thereby you became owner of them?

              If so, I don’t buy that. I just don’t see how the existence of an idea in more than one mind gives you rights to the idea that are equal to its originator. If you pass the words from one book, through your brain, and then on to many other books, I don’t think I would call that “producing” the idea (to use the term in the comment below). I would view you more as an intermediary for the idea.

              Take this analogy: I put a bunch of widgets in my truck and haul them across country. I own the truck, I own the labor associated with transporting them, but I haven’t created them by delivering them to someone else, and I don’t get to keep all the profits from the sale of the widgets. The fact that there may be identical widgets scattered all over the world doesn’t change that.

            2. I agree. Most of what competing businesses do nowadays is advertise and market themselves to consumers. To the uninformed eye all smartphones are the same ‘idea’, it’s just about who creates the right ad that strikes a cord with consumers that ends up winning the most customers.

        2. He is suggesting that because a collection of thoughts that originated with someone else exists in his head, he can sell them without remunerating the original author because his memorization is “production”, somehow.

          1. Somehow?

            It is.

            And I didnt use the word production, but Im fine with it.

            I own myself and all the products (I guess that is where you got production from) of my brain and hands. It follows from self-ownership. Anything else is a mild form of slavery.

            1. Interesting ideas, robc, but ownership implies some exclusivity. Otherwise it’s communally owned.

              How are my interests advanced by saying that I own the concept that 1+1=2? It seems that I can take full advantage of that concept without going so far as to claim ownership of it. Much like the air I breathe, I can take it into my lungs and let them do their work without the necessity to own the air.

      2. What about the product of Warty’s mind?

        1. Before I learned of warty i thought nothing could exist outside of nature. Everything that existed was material and everything that could happen was constrained by the properties of our material universe.

          Warty changed that forever.

    3. You are the living man!!

  4. A world without copyright is a world without property rights. All property is intellectual property.

    1. A world without copyright is a world without property rights. All property is intellectual property.

      I’ve stolen your words, Cyto! You no longer have them! Oh wait, YOU STILL DO. Copying something isn’t stealing it. An idea isn’t a physical object, and copying that idea doesn’t take anything from the original thinker any more than building a copy of your bed is “stealing” your bed.

      1. Fair enough, but if you go around saying that those words originated with you, would that be a type of fraud?

        Also, is the definition of property “that which can be stolen”?

        1. It would be lying at the least. I usually think of fraud as applying to transactions. Just saying an idea originated from me isn’t fraud, but trying to sell it’s implementation as a “darius404 original work” might be. I think of fraud as a form of stealing, using lies or other deceptions to influence someone into a transaction other than the one they think they’re entering into. If what they’re exchanging their money (or goods) for isn’t what was promised to them, then I’ve stolen from them.

          Also, is the definition of property “that which can be stolen”?

          Hm, maybe. At least, if someone wants to make a philosophical case for IP they can’t rely on concepts of property and theft for justification, as ideas are not the same as physical property and can’t be “taken away” in the same way that physical property can, so it needs to be justified in a different manner (if it can be justified at all). People arguing for IP at least need to acknowledge that it ISN’T analogous to taking a physical object against my will, leaving me without the object.

        2. Probably fraud.

          But if you want to print up the words of cytotoxic and sell them, he doesnt deserve anything.

          If you claim them as your own, thats fraud.

      2. Copying something isn’t stealing it. An idea isn’t a physical object, and copying that idea doesn’t take anything from the original thinker…

        So if I took an engine from the Bugatti factory, that would be theft, because the machines that took the metal and shaped it a certain way gave it value. But if I took the engineering documents related to the engine design – the ideas and drafts that describe how to make an engine function – that wouldn’t be theft, because there were no mystical machines involved to shape the physical object and give it value. Intellectual labor is worthless.

  5. “?2012 Reason Foundation”

    1. Those of us who are anti-IP have never claimed to have Reason on our side.

      1. Or reason, if you ask me…

        1. Who asked you?

  6. Why do we always concern ourselves with concepts related to “enriching the public domain,” if we believe that protecting property rights is one of the only true responsibilities of government.

    1. Libertarians like torrenting stuff.

  7. Emmett (Eugene) Grogan, one of the founders of The Diggers, had a unique copyright enforcement solution in the 1960s. When Abbie Hoffman published “Fuck the System,” a collection of anonymously written free tips on how to panhandle and steal, Grogan raped Anita Hoffman in response.

    1. The tips were from pamphlets written by various Diggers members and distributed free. One of their mottoes was everything should be free. Another was that the top 1% should pay for everybody else.

  8. Libertarians are not against Copyright laws, are they?

    It’s this an enforcement of property rights?

    1. You have to believe that it is property first for that to apply.

    2. Libertarians are not against Copyright laws, are they?

      Libertarians are not a bloc of individuals all thinking pre-screened Approved Thoughts in unison.

      Would you be in favor of copyright laws that ran for 10,000 years?
      Or 0.0 years?

      Or somewhere in between?

      1. I heard that the song “Happy Birthday” has a copyright and one must pay those people if one wanted to use it in a movie or other productions.

        1. There’s some debate about that. http://en.wikipedia.org/wiki/H…..ght_status

        2. The copyright on Waltzing Matilda is even more bizare.

        3. The authors are buried across town from me. As the link above pointed out, the youngest didnt die until 1946.

          I need to take pictures of a bunch of famous graves in their cemetary some time. I think its the same one with Pete Browning, for example.

      2. I vote for 10 (ten) years? S/B enuff fer all of us latest-fashion-addicted morons? And enuff fer the creators to skim their money and GO AWAY afterwards? Otherwise, WHO do we owe money to, when we buy, for example, buy a Bible? Don’t we have enuff ta fight over, w/o getting involved with, WHO do we pay copyright fees to, when GOD supposedly wrote this work?

    3. Re: Alice Bowie,

      Libertarians are not against Copyright laws, are they?

      I am against copyright laws. Wanna make something out of it?

      It’s this an enforcement of property rights?

      Ideas are not property.

  9. Spoo cannot fully answer the question of what would happen if writers and publishers could not count on copyright to protect them from piracy.

    I can tell you: It will be very disruptive – at first. Then, authors and publishers will find new and ingenious ways to maintain their market share even in the face of imitators. People still buy the original Coke even when there are myriads of imitators. People read Reason for free, and yet many (I hope) enthusiasts keep it alive through donations.

    By the way, isn’t spoo a Centauri dish?

    1. +1 last best hope for victory

    2. Couldn’t we just test Spoo’s theory by copying his book and trying to sell it as our own work?

      We’ll call it, “Thoughts on Copyright, edited by the H&R commentariat”

    3. Ironically for your example, recipes aren’t protected by copyright. Hence, Coke’s recipe is a trade secret which they judiciously guard.

    4. authors and publishers will find new and ingenious ways to maintain their market share even in the face of imitators.

      Magic!

      If you don’t support copyrights, don’t support them. But don’t underwrite your support with magic. It’s entirely possible, particularly considering the ease of duplication with modern technology, that authors and publishers would be severely materially harmed and their entire business model destroyed. Shouldn’t matter to you if you don’t think that intellectual labor has value.

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  11. OT: Check out this Libertarian Goddess!!!

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    1. Fail! Try this.
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  12. Though the informal practices of trade courtesy lived on in diluted form, federal and state laws had a larger impact on foreign modernist authors, such as James Joyce and Ezra Pound, and their U.S. publishers.

    Huh? Since when is Ezra Pound (born in Idaho) a “foreign” author?

  13. World without IP would be very amusing. IP restricts distribution ideas in order to promote their generation. A bit of artificial scarcity to make people interested. I don’t know much about copyrights, but patents i’m more familiar with, and if they go away…

    It will kill off long term for profit driven research as it exists now. You could argue that charity or government driven research would pick up the slack, but i’d be skeptical. To the extent that some of that research will continue, it will be protected by trade secret. This will be ironic, because IP opponents charge that IP interferes with idea distribution. Well, trade secrets utterly destroy idea distribution – that’s their whole point.

    Finally, getting a decent job will be a nightmare. I already have to sign non-disclosure agreements as part of my profession. And that’s with patents. Without them, the pressure on employment contracts will be enormous – you won’t be able to quit, you’ll be monitored 24/7, and if you let your tongue slip, your employer will demand the blood sacrifice of your first born and possibly your pet dog. Fun!

    1. IP restricts distribution ideas

      Or, in case of patents, their deployment to practice.

      1. And HURRA! Now with HTML coding.

    2. It will kill off long term for profit driven research as it exists now. You could argue that charity or government driven research would pick up the slack, but i’d be skeptical. To the extent that some of that research will continue, it will be protected by trade secret. This will be ironic, because IP opponents charge that IP interferes with idea distribution. Well, trade secrets utterly destroy idea distribution – that’s their whole point.

      In practice, trade secrets don’t play out that way. Breakfast cereals in the U.S. aren’t substantively protected by intellectual property law, but that doesn’t seem to hamper the innovation of products. Espionage also has a strong tendency to distribute ideas, as a sufficiently motivated group will eventually gain access to information, legally or not. And that’s leaving aside the fact that the research company need not have any ties with distributing company. In a secure research operation, selling licensed information and suing clients for distributing private information protected by contract seems like a viable model.

  14. The American theory of copyright (and patents), as enshrined in our constitution, is possibly anti-libertarian because it’s designed around creating incentives to spur growth. European version? Your property is your property. Utterly libertarian, and a denial of this property right is just straight-up socialist.

  15. Sometimes man you jsut have to roll with it dude.

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  16. I am astonished that this hasn’t been linked, yet.

    Copying is not theft.

  17. I have a hard time seeing how writers, artists, musicians, designers, and other people who make a living from making words, sounds, pictures, etc., would be able to do so in the absence of IP laws.

    Yes, IP laws get abused, and yes, they might not accord with some views of libertarian theory. But on balance, I think they’re a good thing, and do promote the arts and industry, as they were intended to do.

    1. Musicians would be fine – they make the bulk of their money on live performance anyway. Their publishing rights are owned by a record label, not themselves (or at least in the vast majority of cases). Record labels are essentially a musician’s PR arm, for which they collect virtually all of the revenue from publishing. Songwriting copyright is similarly worthless; it just means you get the statutory royalty if somebody else records the song or performs it live in front of people who give a shit about your copyright. In practice, the only person playing your music to your audience is probably going to be you; that’s what your audience wants to see and will pay to see.

      Similar for other arts. How many prints do you think exist of The Scream or Starry Night? Yet the value of an original has not been diminished. Reproductions, even authorized reproductions, have always been nearly worthless.

      Authors would be in a tough spot since there is no performance involved in their craft for which an audience will pay. The experience of reading is pretty much the same whether the source is a $20 official copy from the publisher or a free bootleg download, and there’s really nothing you can add to the experience to extract additional value for the original work.

      1. The people who would really get screwed though are inventors; designers; engineers; those types. The people who actually conceive the ideas that become “hard” property. It’s an unusual position to argue that, say, the source code for Adobe Photoshop can’t be stolen. It is utterly without value. Merely a thought in one mind that could just as easily be produced in another. It is only imbued with value once it’s been etched into a disc by a laser and stuck in a cardboard box with shrink wrap. Those things are property. They are physical; tangible. They can be stolen. Merely reproducing the intellectual labor that makes the program function? Well that’s not theft, because it takes nothing from the author of the software – thoughts have no value because they aren’t tangible. Once he thought those thoughts and put them down where somebody else could read and replicate them in their own mind, they have just as much value when the 2nd, or 2nd billionth person thought them.

        1. “The people who would really get screwed though are inventors; designers; engineers”

          People get screwed out of their livelihoods all the time. It’s called creative destruction. Why do inventors jobs require protective laws to prevent this?

      2. Authors would operate off of a patronage system (private or kickstarter-style) and/or within a network that offers ease of distribution for readers. Something like Itunes, where the convenience of receiving a product for a minimal charge outweighs the hassle of tracking down an illegal mp3 elsewhere.

        1. “Authors would operate off of a patronage system (private or kickstarter-style) and/or within a network that offers ease of distribution for readers.”

          I think distribution is the least of author’s worries. Thanks to internet. Editing and promotion are more problematic. This kind of work was done by publishers previously, and it’s difficult to imagine an author bearing this responsibility lightly.

          1. I would imagine there would be some sort of vetting/editorial system within the distribution network, though the days of the powerful and attentive editor have long since passed with the explosion of literature of all sorts over the past three decades or so. Promotion would be a market thing, as I’d expect publishers to become the rough equivalent of PR people when the world fully embraces digital media and consigns paper to the dustbin.

            The Amazon self-published books are the first tentative step into this territory, so I’m interested to see where it goes.

    2. “I have a hard time seeing how writers, artists, musicians, designers… would be able to do so in the absence of IP laws.”

      I guess you’d be in favour of laws to protect harness makers, wagon wheel makers and chimney sweeps. For the public good of course. And don’t forget the added bonus of all the law suits that will pop up.

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  19. I don’t have any problem with the idea of copyright, but I think that the way that it has been implemented is all screwed up. I don’t understand why someone who invents a cure for cancer only gets protection for that idea for about 20 years, while someone who draws a picture of a mouse gets protection for their lifetime plus 70 years.

  20. So if I started my own web site and called it “Reason” and copied every article on here verbatim while pocketing the ad revenue the folks here would be cool with it? I doubt it.

    1. I’d be fine with it, as would every other anti-IPer.

      If you claimed their writing as your own work in an IP-free society there would be widespread shaming, though, and non-legal social/employment consequences.

    2. Would your website require registration?

      Tell me more.

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  22. Why do libertarians hate intellectual property so much?

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