# Authorship, Volition, and the Moral Legitimacy of Copyright
### A Hoppean Argumentation Ethics Approach
## Introduction
Modern debates over copyright are often framed as disputes about technology, enforcement, or economic efficiency. Yet beneath these surface disagreements lies a deeper moral conflict—one that concerns authorship, agency, and the legitimacy of negotiating power. In recent decades, especially within libertarian, copyleft, and open-source communities, copyright has increasingly been described not merely as flawed or overextended, but as *intrinsically immoral*. The core accusation is that asserting exclusive rights over non-rivalrous information constitutes unjust enclosure, coercion, or exploitation.
This essay advances a contrary claim: **copyright, understood properly, is not immoral in principle**. Rather, it is best understood as a *codified morality*—an imperfect legal attempt to formalize pre-legal moral claims that arise from human volition, authorship, and assent. Using Hans-Hermann Hoppe’s argumentation ethics as a foundation, refined through a triadic ontology that centers volition, this essay argues that the moral legitimacy of copyright does not depend on scarcity, enforcement, or state power, but on the deeper reality of authorship-based agency and the right of authors to set terms for the use of their work.
The goal is not to defend every instantiation of modern copyright law, nor to deny the reality of abuse, capture, or overreach. Rather, the aim is to show that **the essence of copyright—authorship-based control over terms of dissemination, licensure, compensation, and profit—is morally legitimate**, and that denying this legitimacy rests on unresolved contradictions about agency, guilt, and power.
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## I. Hoppe’s Argumentation Ethics and the Problem of Normative Grounding
Hans-Hermann Hoppe’s argumentation ethics was developed to address a long-standing philosophical problem: how to justify ethical norms without committing the “is–ought” fallacy. Hoppe’s insight was to shift the terrain from abstract moral axioms to the *conditions of rational discourse itself*. Any participant in argumentation necessarily presupposes certain norms, and to deny those norms while engaging in argumentation results in a **performative contradiction**.
At minimum, argumentation presupposes:
1. Exclusive control over one’s body (to speak, write, gesture).
2. Exclusive control over one’s mind (to think, evaluate, and assent).
3. Recognition of interlocutors as agents capable of assent and dissent.
From these presuppositions, Hoppe derives self-ownership and, by extension, property rights. One cannot coherently argue against self-ownership without implicitly exercising it.
While critics have challenged Hoppe’s move from “use” to “ownership,” these critiques often miss the deeper structure of the argument. Hoppe’s true contribution is not the elevation of *argumentation* as a privileged activity, but the identification of **inescapable volitional commitment** as the foundation of normativity.
Argumentation is simply the cleanest exposure point.
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## II. From Argumentation to Assent: Volition as the Deeper Genus
Argumentation is not unique in presupposing agency. What makes it useful is that it cannot be denied without being performed. But the deeper category is **assent**.
Assent occurs whenever an individual binds themselves to a proposition, claim, promise, or refusal that is normatively assessable. One may assent intelligently or ignorantly, confidently or hesitantly—but assent always exposes authorship. It marks the individual as the origin of a commitment.
This matters because **self-ownership does not depend on intellectual sophistication**. Children assent. The uneducated assent. The fearful assent. Moral agency is not a function of reasoning power but of volition.
Hoppe’s argumentation ethics, properly understood, thus rests on this deeper principle:
> Any act of assent presupposes normative agency, and normative agency presupposes authorship.
Argumentation is one instance. Covenant, contract, testimony, promise, refusal, and consent are others. In each case, the agent presents themselves as the author of a commitment and thereby becomes accountable for it.
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## III. Control as Evidence, Not Source
A crucial clarification follows: **control is not the source of ownership; it is the evidence of authorship**.
Hoppe speaks in terms of control because control is empirically observable. One cannot argue, assent, or commit without exercising control over one’s faculties. But control itself is not morally generative. It is a footprint.
The source is volition—the irreducible capacity to originate intent.
Ownership, then, is not a metaphysical substance nor a brute fact of force. It is the **social and moral recognition of authorship**. Self-ownership is the recognition that one is the author of one’s actions. External property rights are extensions of that recognition into the world.
This distinction becomes decisive when moving beyond rivalrous goods.
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## IV. Authorship, Expression, and the Limits of Property Metaphors
Information, unlike land or tools, is non-rivalrous. One person’s use does not exclude another’s. This has led many critics to conclude that information cannot be owned and that copyright is therefore illegitimate.
This conclusion is based on a category error.
Authored works—books, music, software, designs—are not merely information. They are **expressions of volition**, originating in authorship. While the truth content of a work may not be ownable, the *expression* is normatively attributable.
Authorship grounds moral claims not of absolute exclusion, but of:
- Attribution (who authored this?)
- Consent (under what terms may it be used?)
- Integrity (may it be altered or misrepresented?)
- Reliance (were expectations set and relied upon?)
These are not property claims in the rivalrous sense. They are **covenantal claims**—claims arising from the conditions under which the work was created and offered.
Thus, plagiarism is immoral even when copying causes no material loss. Misattribution is immoral even when dissemination is permitted. These wrongs are violations of authorship, not of scarcity.
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## V. Copyright as Codified Morality
Seen in this light, copyright law is best understood as an attempt—often clumsy—to codify these pre-legal moral realities. It is not the source of authorship. It is not the source of moral obligation. It is a legal mechanism that tries to formalize:
- The author’s right to set terms of access.
- The legitimacy of negotiating compensation.
- The expectation that reliance on those terms will not be betrayed in bad faith.
That modern copyright law is overextended, bureaucratic, and frequently captured by corporate interests does not negate its moral foundation. It demonstrates the difficulty of expressing covenantal, volitional realities through blunt statutory tools.
Importantly, **copyright does not derive its legitimacy from enforceability**. Moral obligations exist even when enforcement is difficult or impossible. Confidentiality, fidelity, and good faith are not invalidated by the possibility of breach.
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## VI. Negotiation, Profit, and the Moral Confusion of Copyleft
The strongest moral opposition to copyright today does not come from claims about inefficiency, but from claims about *power*. Profit, asymmetry, and negotiation are treated as morally suspect. Authors are encouraged—sometimes shamed—into relinquishing bargaining power in favor of “free” distribution and post hoc goodwill compensation.
This posture rests on a confusion between **power and coercion**.
Setting terms is not aggression. Refusing access absent agreement is not violence. Negotiating price is not exploitation. These are expressions of agency meeting agency.
Copyleft licensing, particularly in its most restrictive forms, reveals the contradiction clearly. It relies entirely on copyright enforcement while denying the legitimacy of authorship-based control. It often encodes ideological hostility toward profit, substituting guilt and moral pressure for explicit agreement.
Voluntary generosity is morally permissible. But **the claim that it is immoral to negotiate from a position of authorship is not**. That claim denies the very agency it purports to defend.
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## VII. Federalization, Common Law, and Moral Discovery
The embedding of copyright into federal constitutional law short-circuited what likely would have been a common-law evolution. Common law is better suited to questions of intent, reliance, and bad faith. It allows for contextual, proportional remedies.
Federalization froze unresolved moral contradictions into statute and made copyright both rigid and vulnerable to capture. This does not invalidate the moral core of copyright; it explains its dysfunction.
Law cannot resolve contradictions that culture refuses to confront. The modern discomfort with authorship-based power ensures that any legal regime will remain unstable until volition and negotiation are morally rehabilitated.
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## Conclusion
Hoppean argumentation ethics, properly refined, does more than justify self-ownership. When combined with a serious recognition of human volition and assent, it provides a foundation for understanding authorship as a morally significant act—one that grounds legitimate claims over the terms of use, dissemination, licensure, compensation, and profit.
Copyright, at its core, is not an immoral enclosure of information. It is a codified attempt to respect authorship-based expectations in a world where expression can be copied without loss. Its failures are not proof of its illegitimacy, but of the difficulty of translating covenant into statute.
To deny the author’s right to negotiate terms is not liberation. It is a denial of agency dressed as moral purity. The path forward lies not in abolishing authorship-based claims, but in recovering the moral seriousness of volition, authorship, and agreement—without guilt, without coercion, and without illusion.