Julian takes the RIAA to task for a rather silly argument they’ve mustered in favor of a file-swapping crackdown: that the software used to swap music files is also used for swapping kiddie porn. Radley suggests that Julian is being inconsistent, because he has defended the constitutionality and libertarian-compatibility of the national Do Not Call list: “Why is the DNC list a legitimate use of federal power via the Commerce Clause, but federal laws against fileswapping aren't?”
Radley misunderstands Julian’s argument on the file-swapping issue. He notes, correctly, that many of the same points Julian mustered in defense of the DNC list apply here: (1) there is some form of theft involved [assuming you buy the notion of intellectual property], (2) the theft is being perpetrated by means of public utilities, (3) it’s occurring across state lines, and (4) state laws are insufficient to deal with the problem. And these points would be sufficient to show that a file-swapping crackdown would be constitutional and [again, if you buy the notion of intellectual property] libertarian-consistent if done correctly. But that’s not what Julian was trying to prove. He was simply drawing attention to a thoroughly unbelievable statistic implying that 42% of downloadable porn images were kiddie porn. It turns out this statistic was found by seeing how many of the files had titles or descriptions with certain words like “underage” in them, which in no way indicates that the images actually involve children.
As a constitutional matter, the federal government clearly has the power to deal with file-swapping in some manner, because Article I Section 8 of the Constitution gives Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The Commerce clause need not even be invoked here. The constitutional basis for file-swapping legislation is even better than that for the DNC list.
With respect to libertarian-ness, there are those libertarians who think the IP rights are illegitimate grants of monopoly power, but Julian and I am not among them. I think that IP rights, while differing from traditional property rights in many respects, share with traditional property rights the same consequentialist justification: they deal with a positive externality problem that would exist in their absence. I therefore regard IP as just an unusual species of property. Julian, I happen to know, thinks IP rights should not be regarded as true property, but are justifiable nonetheless. Both of us are skeptical about the rent-seeking efforts of organizations like the RIAA to strengthen the enforcement of IP rights whatever the cost, to extend copyright periods indefinitely, and so on.
Aside from constitutionality and libertarianism, there is the additional issue of effectiveness. It’s entirely possible that anti-file-swapping legislation would be utterly incapable of dealing with distributed networks like Morpheus and KaZaA, in which case the legislation would be constitutional but pointless. The logistical problems associated with the DNC list are not nearly so difficult -- though I could still be convinced by evidence that, on net, the DNC was practically not such a good idea after all. Point being, good policy must be constitutional, just, and practical.