A certain type of libertarian might say, and with some authority, that none of these are proper issues for libertarians to care about: You were free when you signed the licensing agreement, you agreed to it, and that’s that. Freedom most certainly does not mean freedom from the consequences of your own bad choices. (Indeed, by many accounts, that’s a plausible antonym to freedom, because the freedom from consequence always entails someone else being made to pick up the tab.)
To which I might say: Close, but not quite. To explain what’s wrong here, let’s imagine two basic types of society. Both have private property, of a kind. But they’re quite different, and increasingly we may have to choose between them.
The first type of society is dominated by fee simple property. Fee simple is the arrangement that the typical American thinks of when he or she hears the phrase “private property.” Fee simple property is alienable with no residuum. Simply put, there are no strings attached. You may use it, or you may let it sit unused. You may gift it. You may sell it. You may exchange it. You may take out a loan and designate your property as collateral, if you can convince a lender to agree. When you die, you may will the property to anyone you like. And when you’ve sold it, or gifted it, or traded it away, you no longer have any interests in it. It’s not yours anymore.
Strings, when they exist, are considered exceptions to the rule. One common string attached to fee simple real estate is the property tax. Another, and not a popular one, is the power of eminent domain. (A still more absolute form of property, allodial title, is not subject to tax or to eminent domain. Rather obviously, states like to keep this kind of property to themselves.)
The point here is that in a fee simple system, strings are few in number. They have to be justified by some very important reason. They are never simply presumed to exist. And they are not generally inheritable: If my father signed a contract, it’s not binding on me. If a property is sold, its former owner no longer has much to say about how it’s used.
The result is a regime of tinkering. Property can be modified. Agreements can be modified. New types of property, and new types of agreements, can both be devised. The dead hand of a former owner almost never gets in the way. Fee simple property allows individuals to respond to particular circumstances with a flexible mix of creativity and common sense.
In the second type of society, the exceptions to fee simple have eaten the rule. These exceptions are numerous and varied. People still own things, as mentioned, but the nominal owners’ use is severely constrained, typically by conditions laid down by the former owner: Only certain crops may be grown, and only in particular ways. From them, a ground rent is due. Houses may be built here, but not there; in this style, but not that. You may bake, but only in particular times, only according to certain recipies, and only in set quantities. When you die, the property you hold reverts to the lord, and when he dies, the property he holds reverts to his lord. And when he dies, he can’t give it to anyone other than his eldest son. When payments fall due, they shall be made in labor, and not in cash. If anyone higher up on the great chain of hierarchical title dislikes what you’re up to, they can probably put a stop to it.
There’s a name for this second type of society. It’s called feudalism.
Abandoning feudal property in favor of fee simple is one of the things that helped the world get modern. And yet, more and more we seem to be sneaking back to the fedual system. As software smears across the fabric of everyday life, the intellectual property that comes with it is making the use of everyday objects look more and more like a strange form of corporate feudalism.
In describing feudalism above, many of my examples came directly from the French Old Regime. And yet many of them apply equally well in our own world. Some of them are true almost without modification as regards commercial activities, and our noncommercial property isn’t far behind. In place of the local lords stand corporations, armed with extensive and invasive intellectual property rights. (We also have increasingly powerful HOAs, planning commissions, and zoning boards, which represent other dimensions of essentially the same problem.) In place of the king we have the federal government, which is about as responsive as Louis XIV ever needed to be, when a peasant had a dispute with his local lord.
Markets, though, have often helped, and there has been some successful pushback. Keurig, for example, backed down from its proprietary approach and has allowed individual owners to brew whatever coffee they like. In general, though, the exceptions are chomping away heartily at the rule, and the ability to tinker is indeed disappearing, in favor of carved‐out intellectual fiefdoms that extract rents and limit choices much like the old ones did.
The fact that we have surrendered voluntarily may satisfy the purists, and yet one ought perhaps to ask just how far the trend will go, and how – if at all – it might be limited. The person who signs himself into serfdom may have cause to regret it, even if he volunteered at the time.
That may seem like a strange worry to have. And it might even seem like nothing too serious to worry about: Again, you did agree to this stuff. Beyond this objection, though, lie some strong libertarian concerns about the nature and extent of intellectual property. The fact that it is coming increasingly to resemble a system that stifled free enterprise – rather than encouraging it – should be a sign that something’s badly off track here.