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Libertarian Sci-Fi Authors and Copyright versus Libertarian IP Abolitionists
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Libertarian Sci-Fi Authors and Copyright versus Libertarian IP Abolitionists

A recent debate between myself and other anti-IP libertarians, and libertarian sci-fi author J. Neil Schulman1 has led to an exchange between two other libertarian authors, pro-IP Brad Linaweaver and IP skeptic J. Kent Hastings (see post below). Many libertarian novelists seem to be for copyright and IP, such as Schulman, L. Neil Smith,2 Steven Vandervelde, Ayn Rand, John C. Wright, while others are opposed or skeptical, such as Hastings, Cory Doctorow, and Sean Gabb.

The exchange below between Hastings and Linaweaver is confused or flawed in a number of ways. First: it does not even link to the debates it is drawing on and referring to. Second: the debate is characterized as IP versus open source. But not all open source people are opposed to IP, and not all anti-IP people are compelled to support open source. At best there is only an overlap between open source and anti-IP types. So the debate is really between pro-IP and anti-IP people.

Third: What they are getting at is never made quite clear. Some kind of compromise? If so, what is it? Is it to focus on our mutual enemies instead of each other? But that is a tactical or strategic matter. Not one based on substance. It does not have anything to do with whether patent and copyright are justifiable. The tenor of the post seems to be that we libertarians should somehow “compromise” or put this “small issue” aside and focus on the big issues. This is the tone of the concluding comment:

The authors of this statement would like more common sense and less fanaticism on the Internet. LOL! We may be f*cking lunatics, but we are not a threat to fellow libertarians who are just trying to live their lives. What has happened to our priorities in a world of collapsing economies, domestic crackdowns and endless wars?

This implies that IP is a small matter, at best, not a big priority. But anyone following the havoc wreaked on our economy by patents (costing at least $100B a year in waste and distortion and lost innovation),3 and the huge threat to civil liberties and Internet freedom by copyright (the SOPA and ACTA and TPP debacles),4 will realize this is just not so. I’ve argued previously5  that patent and copyright have become among the most evil  and harmful state laws, institutions, and policies, such as:

  • the fed/central banking/fiat money
  • war
  • income tax
  • government schools
  • drug war
  • IP

We can no more let IP libertarians “slide” than we could pro-tax, pro-war, pro-public school, or pro-drug war libertarians. IP is utterly insidious and evil and statist, and horribly damaging to life, liberty, and property. It is thoroughly unlibertarian, even if some utilitarians, minarchists, and Rand-influenced libertarians—and those whose bread is buttered by IP, like novelists—refuse to recognize this.

Fourth: the post refers to “the current libertarian civil war between open source and IP” and “internecine warfare.” But there is really not much of a civil war; most libertarians are becoming hostile to IP, as they should. There is a remnant of stragglers from the Ayn Rand influenced generation of libertarians who are clinging to IP views, but their days are numbered.6 They also allege that “we believe that many seemingly reasonable libertarians have been acting fairly crazy in this internecine warfare”. But the IP opponents are simply opposed to statism of all forms, including anticompetitive monopoly grants of privilege. Our arguments are a natural consequence of very elementary libertarian property and anti-state and pro-free market/competition principles, while the opponents have no coherent arguments at all and resort to death-threats (literally) and repeated question-begging accusations that people who compete or copy are “thieves”.7

Linaweaver says: “I don’t believe [Mises] ever dreamed the day would come when a fellow libertarian would completely deny the very existence of novels.” Now this is not an argument for copyright at all, and the comment is unattributed. Presumably he is implying that I or some other anti-IP types deny novels exist. I do not deny this, even if others might question what such a statement might mean. I simply deny that having a valid concept that has a referent means that the referent is an ownable type of thing. Love exists, for example, and may be said to be a type of “thing,” but is not ownable. Only scarce (rivalrous) resources are ownable for the simple reason that scarcity and the conflict it makes possible is the necessary condition for property rights to arise in the first place, since the very purpose of property rights is to allocate owner to such contestable (rival, scarce) resources so that they may be used peacefully and productively.

Linaweaver also says:

A recent re-reading of Samuel Edward Konkin III’s “Copywrongs” persuades me that the fountainhead of Agorism would be a moderate in today’s IP vs. open source war, the same as Kent and myself. At no point does SEK3 question the nature of individual authorship. At no point does SEK3 confuse works of art with corporate state monopoly patents. At no point does SEK3 confuse artistic creation with scientific discovery.

This is a disingenuous way of putting it. Linaweaver acts like the case against copyright and patent requires one to deny “authorship” or artistic creation or works of art exist. This is not the case. And it is in fact quite obvious that SEKIII did object to the entire notion of patent and copyright, or any alleged “free market” version thereof. I discuss Konkin’s views on IP in The Origins of Libertarian IP Abolitionism. I, as well as others like Lew Rockwell and David Gordon, noted that Konkin, in his 1986 article Copywrongs, clearly came out against IP on the same grounds that I and others do today. As he wrote:

Is not a producer entitled to the fruit of his labor? Sure, that’s why writers are paid. But if I make a copy of a shoe or a table or a fireplace log (with my little copied axe) does the cobbler or wood worker or woodchopper collect a royalty? … A. J. Galambos, bless his anarchoheart, attempted to take copyrights and patents to their logical conclusion. Every time we break a stick, Ug The First should collect a royalty. Ideas are property, he says; madness and chaos result.

There is little doubt that Konkin would have sided with the IP abolitionist libertarians today, despite Linaweaver’s attempt to enlist him on their side. Even Schulman implicitly admits this when he argues that he thinks it’s significant that the anti-IP Konkin “never successfully challenged” Schulman’s Rand-inspired, confused defense of IP. This is an odd negative appeal to authority, but it is based on the recognition that Konkin was, in fact, anti-IP.

Linaweaver also engaged in bizarre, and unsupportable, ad hominem, when he attacks me personally:

I agree with Kent. Cory Doctorow is not a hypocrite. My idea of a hypocrite is Kinsella. If you look up the word hypocrite in a copyrighted dictionary somewhere, there should be a picture of Kinsella.

He doesn’t say why I’m a hypocrite, or the relevance of proving that I am. Presumably this is because I’m a patent attorney and have obtained patents for people in the past. This is implied in Hastings’ tepid defense of me:

Stephen [sic] Kinsella, despite having been involved in the granting of a number of patents, does strongly oppose them now, stating his concern for the freedom of home fabricators being able to 3D print replacement parts as an example. That seems clueful to me, but true repentance requires a sizable donation to the Resilient Freedom Foundation, which will happily issue indulgences for past transgressions against holy anarchy.

First of all, whether I am a hypocrite or not is irrelevant. Patents are either justified or not, whether or not I am in favor of them or work to procure them. One person cannot by their action change the ethical status of a law.

Second, Hastings is a big confused. I opposed patents at least as early as 1995. That means I oppose there being a patent system in place. That does not mean I oppose companies obtaining patents given the current system. In fact it is an unfortunate fact that when the patent system favored by Linaweaver et al. is imposed on companies they have little choice but to waste resources obtaining patents, if only to use defensively in case they are attacked aggressively by another company’s patents. It is true that I would not participate in an aggressive use of patents, but I would not oppose a company using its patents in a countersuit, defensively, against an aggressor. Sure, it’s a waste of money and resources, but this is a consequence of having a patent system. Likewise, companies spend money on tax avoidance strategies, on accountants and tax attorneys, that they would not need to spend in a free society. But it’s not the tax attorney’s fault. And it’s not my fault that some companies need my services. Obtaining patents for companies is akin to selling guns to people: they can be used for good (defensively) or ill (offensively, aggressively). In short, I do not apologize for helping companies obtain patents for defensive purposes, nor for helping them over the years fight off threats from competitors and patent trolls who use patents aggressively against them. (Not that I enjoy patent practice. It’s icky.) My only regret in this regard is that I in my formative libertarian years I did assume that patent and copyright were part of capitalist property rights, say, from about 1978 (junior year in high school) to about 1992 or so, when I had just started practicing patent law. But I’m not too hard on myself about it, as I was taking the word of previous libertarians who were very bad on this issue.

The hypocrisy accusation is a typical tactic of those defending the IP system. They don’t want anyone who knows the system from the inside to be permitted to criticize it. Anyone who knows about the system from the inside is attacked as a hypocrite for not favoring it (like we should impugn the character of any tax attorney or defense attorney who profits from the tax system or drug laws while thinking they are reprehensible, I suppose, or like we should attack the character of an oncologist who profits from cancer even while he wishes it could be wiped out). So the only people left to oppose IP are people who know little about it. That’s what the IP advocates want: to defang the opposition to their monopoly privilege grants.8

Here’s the post.

Nobody Talks About Rights Club

Tom Paine’s Common Sense.
Tom Paine’s Common Sense.
 A preliminary statement by Brad Linaweaver and J. Kent Hastings on behalf of their mutual friend, J. Neil Schulman.

Dear fellow libertarians, for some reason unknown to us, Neil Schulman thinks that our opinions will carry some weight in the current libertarian civil war between open source and IP. Since one of us is a moderate open source person (Kent) and the other is a moderate IP person (Brad), we have been discussing the eventuality of a pamphlet through the Resilient Freedom Foundation that we would entitle RADICAL COMPROMISE. We’re in no rush to finish this assignment since we believe that many seemingly reasonable libertarians have been acting fairly crazy in this internecine warfare. However, that is no excuse for us to stay out of the fray.

We’ll be taking turns making some individually attributed comments, as we take tentative baby steps down this thorny path. First, here are some of my observations.

BRAD LINAWEAVER:
For some time now, I have suspected there are two famous dead Austrian economists who share the same name. One is Ludwig von Mises. Implicit in his work was a concept of private property. He never spelled it all out because it was logically implied. He did not view the State as solely existing for the enforcement of outrageous state-subsidized property claims. He saw the State as the primary threat to legitimate private property.

However, there seems to be another dead Austrian economist with a similar name. He is never referred to as the aristocratic von Mises. He is an egalitarian guy who is simply called Mises. This fellow doesn’t hold much store (play on words) in old fashioned concepts of private property. In common with Ludwig von Mises, this Mises economist has some old fashioned view about contracts; but those contracts seem to be divorced from old fashioned concepts of property. We seem to have a subject for further study.

A recent re-reading of Samuel Edward Konkin III’s “Copywrongs” persuades me that the fountainhead of Agorism would be a moderate in today’s IP vs. open source war, the same as Kent and myself. At no point does SEK3 question the nature of individual authorship. At no point does SEK3 confuse works of art with corporate state monopoly patents. At no point does SEK3 confuse artistic creation with scientific discovery.

Unlike the worst open source fanatics (as bad as IP fanatics), SEK3 has a great sympathy for the travails of the midlist author. There is little doubt that he would have sympathy for some (but not all) of the complaints of Neil Schulman and Neil Smith. After all, he worked with both professionally, as he did with myself. The Neils and I have spent many years as commercial science fiction writers on Planet Copyright. That does not make us war criminals.

Many years ago, Neil Schulman wrote a pamphlet with his Logorights Theory. It was an attempt to deal with artistic creation claims outside of the context of the State. I don’t believe he ever dreamed the day would come when a fellow libertarian would completely deny the very existence of novels.

J. KENT HASTINGS:
I’m an author thanks to my articles appearing in various SEK3 publications and in issues of a magazine, MONDO CULT, published by Brad Linaweaver. I’m also a co-author of a novel with Brad, ANARQUIA. There may be a copyright notice with my name on it somewhere. If so, don’t blame Konkin, it’s all Brad’s fault. Blame HIM!

My stellar career, though it be of diminished magnitude compared to other luminaries in my local cluster, is more technical than literary. It’s tough to decide which sector of the economy is more insane on intellectual property (IP) issues, computer hardware and software firms or the big music and film studios.

I’ve followed the computer side of things closely since I soldered together a couple of Intel 8080A based MCS-80 computer-in-a-briefcase devices as President of my college electronics club in 1978, around the time the Apple II was first released and a few years before the IBM PC. I got my ham license then and followed reports of Microsoft founder Bill Gates running around an early homebrew computer club demanding that its hobbyist members respect his copyright authority on BASIC program games he wrote.

Later there were absurd shrinkwrapped End User License Agreements for software at the brand new personal computer stores. “By opening this package, you agree to the terms specified in the enclosed contract you haven’t read yet.” Right.

A long train of abuses and usurpations (that is catchy, I’m so original!) continues in and beyond Silicon Gulch at a furious pace today, despite the existence of various watchdog groups such as the Electronic Frontier Foundation. Cory Doctorow headed EFF for a while and still supports its activities. Cory somehow manages to eke out a meager living from writing copyrighted novels and editing anthologies (in other words, his sales numbers kick all of our asses.) [Of course, I must admit that Brad Linaweaver and Dafydd ab Hugh did four DOOM novels for Pocket Books that hit the best seller lists. That’s not as great as it sounds when you consider Brad and Dafydd were trapped in the work-for-hire Copyright Dungeon.] The important thing is that Cory has a career despite most of his published works being available in free downloadable editions. Some might view those free copies as marketing publicity.

By the way, works considered open source may have copyright notices. There are “copyleft” legal notices like the GPL and various flavors of “Creative Commons” licenses. These exist to allow copying, sometimes with restrictions, for example forbidding commercial use or the creation of derivative works. These licenses originated to keep public domain code from being locked up inside of proprietary software.

To his credit, Neil Schulman publicly opposes most of the abuses that drive me nuts, such as the way Monsanto uses IP to stop access to its products for safety testing and to destroy the time honored practice of saving seeds, even in neighboring fields of heirloom varieties contaminated by Monsanto’s genetically modified organisms. Yep, patent infringement is the biggest threat to our health.

BRAD LINAWEAVER:
I agree with Kent. Cory Doctorow is not a hypocrite. My idea of a hypocrite is Kinsella. If you look up the word hypocrite in a copyrighted dictionary somewhere, there should be a picture of Kinsella.

But worse than all that is the problem of the libertarian movement deconstructing itself in such dangerous times. We face an economic crisis that was predicted by libertarians. As the Imperial State flails around in a desperate attempt to save itself, it seems a propitious time for reasonable anarchists like Kent, and reasonable minarchists (as I view myself) to reach out to the unconverted. The Ron Paul movement has been doing a very good job in this regard.

I turn 60 this year. Never have I seen a time when the average person so frequently associates common sense with libertarianism. No wonder that Tom Paine’s COMMON SENSE is making a comeback. There is a very good reason that millions of people think liberal and conservative bullshit is not the place to find wisdom. The great advantage of the libertarian movement right now is that normal humans know nothing of the insane debates we are having inside our own Asylum.

Kent and I know that the Neils can provoke greater passions than we ourselves can do. (Amen, brother–Kent) I was disappointed to see the way Libertarian Celebrity Wendy McElroy chose to involve herself in this mess.

The following tangent is not really a tangent: One of the things I despised most about public High School was what would happen to you if you defended yourself against a bully. Other students could testify on your behalf, but it wouldn’t matter one little bit. If you had been abused for weeks and finally gave as good as you got, the “malefactors” would be dragged off to the principal’s office. The bully was usually smart enough not to claim self defense. The worm that turned would invariably claim self defense. The results were predictable, as fair and balanced as Fox News. Both students were to blame and both would be punished equally.

It would be nice if Wendy McElroy could rise to the level of a High School principal by condemning all participants in the regrettable incident. Neil was on the receiving end of incredible insults AND wishes for his violent demise before he returned the favor with equally extreme rhetoric. Swooping down like the dark angel of Liberal Political Correctness, Wendy chided Neil alone.

By the way, I was co-editor of FREE SPACE from Tor Books in which Wendy made no protest against receiving an evil Statist copyright in 1997. To borrow a comment from copyright protected Buzz Lightyear, “to infinity and beyond!” Fair use!

Incidentally, I do not believe that SEK3 would have felt threatened in any way by anything Neil Schulman has said. His ghost does not require Wendy defending him from Neil.

J. KENT HASTINGS:
Stephen Kinsella, despite having been involved in the granting of a number of patents, does strongly oppose them now, stating his concern for the freedom of home fabricators being able to 3D print replacement parts as an example. That seems clueful to me, but true repentance requires a sizable donation to the Resilient Freedom Foundation, which will happily issue indulgences for past transgressions against holy anarchy.

Certain conservative cranks are always warning everyone about an imminent expansion of the Seabed Treaty, created “to establish peace,” and which is the basis of the Moon Treaty. For some reason, these crackpots don’t want the UN to sneak its nose into our national tent, outlaw private property and establish a global or solar-system-wide monopoly of authority.

I’ve been concerned about global IP based power grabs that I call The Law of the (C). ACTA is the latest threat “to fight counterfeiting,” replacing SOPA, PIPA, and maybe BOBA and JANGO in the future. (Star Wars is a trademark of LucasFilm, Ltd.)

Brad is charitable when he says the debate reminds him of High School. The trash talking and threats are the playground antics of grade schoolers. Don’t we have better things to do? By the way, I think Neil Schulman’s ex-wife is hot and he sired a daughter. My diet is often worse than Neil’s, so if those who persecute us Lipo-Americans aren’t careful, they may get smacked in the head by a grocery bag of cookies, cheese, peanuts and frozen bean burritos. NOTE: I do not condone these terrible threats made by my alternate personality. Yes I do! Shut up, they’re reading this.

Brad has an MFA degree and therefore can cite obscure works such as COMMON SENSE by Tom Paine, mistakenly thinking the average person will know what that is. From Wikipedia, “George Trevelyan in his History of the American Revolution had this to say about Paine’s pamphlet:”

“It would be difficult to name any human composition which has had an effect at once so instant, so extended and so lasting […] It was pirated, parodied and imitated, and translated into the language of every country where the new republic had well-wishers. It worked nothing short of miracles and turned Tories into Whigs.”

See? It was pirated. Without permission! And its contents changed without approval for parodies. Oh, the humanity! We all know that means the author was ripped off and languished in obscurity, deprived of royalties in his attack on Royalty. So Tom Paine and his pamphlet were lost to the mists of time, except for snooty academics like Brad.

Too bad Paine failed to secure the lack of piracy that Albert Gallatin enjoyed for the publication of his book, Synopsis of the Indian Tribes of North America (1836). Because royalties were paid, it is one of the most famous works of all time–an indelible stamp on history for its celebrated author!

In my courses at the Brad Linaweaver Lugosi Studies Film School, I’ve learned that there are precisely a shitload of times that unauthorized home video copies of TV episodes or movies became the only surviving copies. Some horrible examples include the intentional destruction of older films when they were doing remakes, taping over masters of original episodes in the bizarre history of television, and lots of material that was allowed to deteriorate when the copyright holders had little demand for their product. In other words, it is only Pirate Men who guard even copyrighted things.

The survival of our culture is a mere utilitarian benefit of piracy. Riffing on a recent Doctorow Boing-Boing post, there are about 40 hours of original video and remixes uploaded to YouTube every second by little people versus 40 hours of studio product put in movie theaters each year. So the clear choice, if we’re going to encourage culture, is to discard all the content by the otherwise disenfranchised masses (I am the Left Libertarian here) in order to protect big studio productions of Bruce Willis running around blowing up office towers.

SUMMARY:
We know that what we’ve said is only the tip of the iceberg when it comes to the problem under debate. We know that personal matters are distorting the ideological discussion. Besides all the sound and fury, there are important issues at stake. The biggest mistake both sides can make is to assume that the libertarian opponent is the worst example of the other side.

Is an author trying to get paid royalties really the same as Monsanto? Is a fan completing his collection with bootlegs of out of print works really the same as Bernie Madoff?

The authors of this statement would like more common sense and less fanaticism on the Internet. LOL! We may be fucking lunatics, but we are not a threat to fellow libertarians who are just trying to live their lives. What has happened to our priorities in a world of collapsing economies, domestic crackdowns and endless wars?

J. Kent Hastings and Brad Linaweaver

This entry was posted on Monday, June 11th, 2012 at 10:34 pm and is filed under Freedom, Health, Peace, Two’s-day. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site. 0digg

One Response to “Nobody Talks About Rights Club”

  1. Kevin Carson Says:
    June 11th, 2012 at 11:50 pm I think you may be guilty of some false equivalency in the “acting crazily” statement. While I’m about as much of an anti-IP absolutist as it’s possible to be, I’ve never threatened to kill anyone who attempts to enforce their so-called “copyrights” against me.
  1. See Schulman: “If you copy my novel, I’ll kill you”. []
  2. See The L. Neil Smith – FreeTalkLive Copyright Dispute; Replies to Neil Schulman and Neil Smith re IP. []
  3. Costs of the Patent System Revisited. []
  4. Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; SOPA posts. []
  5. Where does IP Rank Among the Worst State Laws?Patent vs. Copyright: Which is Worse? []
  6. See The Origins of Libertarian IP Abolitionism; The Four Historical Phases of IP Abolitionism; Absurd Arguments for IP; There are No Good Arguments for Intellectual Property. []
  7. See There are No Good Arguments for Intellectual Property; Schulman: “If you copy my novel, I’ll kill you”. []
  8. For more on similar tactics, see my posts Patent Lawyers Who Don’t Toe the Line Should Be Punished!; Rothbard on Lawyers, Accountants, Locks and Safes–and patent lawyers?; Are anti-IP patent attorneys hypocrites?; An Anti-Patent Patent Attorney? Oh my Gawd!; The Most Libertarian IP Work. []
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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.