Stuart K. Hayashi
Suppose you and I enter into a contractual arrangement. According to our arrangement, first you perform a service for me, and then I pay you for it. The terms being set, you perform the service, and then I say, “Nah, never mind that; I have decided not to enter the deal after all. Hence, I won’t pay you and you don’t have to perform the service.”
You say, “What do you mean? I already performed the service.”
That is comparable to how, when an artist provides others access to her design, she does so on the implicit default contractual understanding that those who access her design pay her the price she asks. Thus, just as reneging on paying you for providing your service means I stole the value of your service, to make an unauthorized duplicate of the design, refraining from paying the designer, is to steal from her the value of the resources the artist inputted into bringing the design into existence, value for which the artist was to be reimbursed by those who chose to make use of the design.
When it comes to the issue of whether making an unauthorized duplicate of a design constitutes theft, Timothy Sandefur pronounces,
In [Thomas] Jefferson’s phrase, a person who lights his candle from mine illuminates himself without darkening me. . . .
One might argue that intellectual property is exclusive because, if a man copies the new mousetrap idea and goes into competition with the inventor, the copier is obtaining market premiums in the form of not having to pay for research and development, which is “stolen” from the inventor [note the sarcastic scare quotes]. But the copying marketer is also taking the economic risk in this circumstance, and if his business failed, he certainly would have no right to sue the inventor for coming up with an unsuccessful idea. So it should not work the other way around. . . . [Ayn] Rand seems to confuse the moral right to one’s earnings with the right to enlist the government’s assistance in assuring that one’s earnings remain as high as they possibly can be — which is, of course, the principle of the (genuine) monopolist.
Examine the premise behind Sandefur’s straw-man argument: that for the law to expect that someone pay the artist the price she asks for access to copies to her design is for the law to be protectionist. That is, if a copyright to an artist’s design allows for the artist to use the law to fight against unauthorized duplication of her design, then it means that those who pirate the design are mere “competitors” to the artist, and that a government crackdown on pirating is merely a government crackdown on “competition” so that the artist, being a rent-seeker, can jack up the price of access to her design.
Those who accept the premise of Sandefur’s assumption are to believe that the grievance on the part of the defender of intellectual property rights is that if many fans and would-be customers of an artist can easily obtain a pirated copy of the design without remunerating the artist, that discourages those fans and would-be customers from entering into contracts in the future wherein they obtain access to the design directly from the artist — contracts that would have been lucrative for the artist.
But no, the defender of intellectual property is making the point that when a designer allows other parties access to her design, the default implicit contractual understanding is that by accessing the design at all, those other parties agree to the designer’s terms of payment.
Again, imagine an artist allows me access to her design, and then I make an unauthorized duplicate of her design without paying her. Also imagine that I provide other parties access to this unauthorized copy.
The injustice is not that my having made the unauthorized duplicate will discourage fans of the artist from going directly to the artist in the future and entering into contractual agreements with her.
The injustice of it is that as soon I accessed the design, I committed myself to paying the artist the price she requested, and my having made an unauthorized duplicate was already a breach in our contractual agreement, constituting theft.
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