Property Rights and DRM

Wikipedia defines Libertarianism as:

a political philosophy advocating the right of individuals to be free to do whatever they wish with their persons or property as long as they allow others the same liberty, by not initiating physical force, the threat of it, or fraud against others.

Would it surprise you, then, to know that some Libertarians are strong supporters of IP-maximalism, even to the point of arguing that there is no real difference between physical property and so-called 'intellectual' property? (why this position is absurd: here). We've found one in James DeLong, over at IPCentral, who has been arguing in favor of state-sponsored physical penalties for violating DRM (oftentimes called C.R.A.P.) using extremely weak strawmen. Tim Lee and Jim Harper over at the Technology Liberation Front have done a good job of debunking his arguments.

DeLong's confusion about the differences between physical property and authored creations leads him to some contradictory conclusions:

I certainly agree that it is nice for consumers to be able to space shift by playing DVDs on multiple devices. However, this is a product feature, not a moral imperative that justifies destroying society's ability to nurture creativity.

What's wrong with this? For starters, being able to copy data from one medium to another is not a product feature, it is a fundamental attribute of some property that I own: a computer. What is a computer, but a machine for copying bits from one location to another? Anyone familiar with even introductory computational theory will tell you that if you take away that capability, you no longer have a computer. Or, as Schneier eloquently puts it, "digital files cannot be made uncopyable, any more than water can be made not wet."

So here, then, is the contradiction: If I have built or purchased a machine that copies data, any government mandated restriction on my ability to use said machine results in a violation of my property rights. DRM doesn't actually prevent you, in most cases, from making copies -- it simply prevents those copies from being playable by colluding with the software that can decode and play the data. DRM, in itself, attempts to restrict the effectiveness of copying through technical means. By itself this is not terribly problematic; we can view DRM as a type of one-sided contract between the publisher and purchaser of DRM-crippled works (a contract, I might add, that the purchaser never explicitly agrees to). What is problematic is that the U.S. Federal Government wants to be involved in this private contract, by threatening the purchaser with huge fines and jail time if he attempts to use his computer to copy the media, even if such copying is entirely within the scope of fair use under copyright law, and even though it is entirely within my rights as an owner of a bit-copying computer.

Even more draconian are the clauses of the DMCA which make it a crime to create or distribute tools that can circumvent DRM. If you do this, you will go to jail. It is akin to the government criminalizing the production of locksmith tools, and arresting all locksmiths. Under such a scheme, what would you do if you couldn't access your car because your key has been damaged or lost? According to the MPAA or RIAA, you'd simply buy a new car (or, at the least, a new door, doorframe, etc.) Why would such crazy laws ever be passed? And who would push for them? Well, if the entertainment industry controlled the automobile production/repair industries, they might claim that without such government protection, they wouldn't be able to produce as many cars and that a massive loss of production and mechanic jobs would occur. That is the exact argument they have used to this point in authoring, lobbying for, and defending the DMCA.