“Oh yeah? How would like it if I copy and publish your book under my name?!”: On IP Hypocrisy and Calling the Smartasses’ Bluffs

• J.P. Chandler’s Legal Foundations of a Free Society
• Russell Madden’s “The Death Throes of Pro-IP Libertarianism”

Update: See Are anti-IP patent attorneys hypocrites?, collecting various posts about this topic.

***

A Romanian translation of my monograph Against Intellectual Property, Împotriva Proprietăţii Intelectuale, was recently published. It was with my blessing, but my permission was not needed, since I had released it under a Creative Commons-Attribution Only (CC-BY) license. I would release it under CC0 if this was possible and legally effective. But it’s not. (See Let’s Make Copyright Opt-OUT; Copyright is very sticky!)

Quite often some IP proponent will try the smartass retort, “Oh yeah? Well if you don’t believe in copyright I guess you won’t mind if I slap my name on your book and make a million bucks selling it, hunh?!” I mean, if the book would sell that well, why haven’t I made a million on it…. Why does the pirate think he can profit where I couldn’t? These retorts are never serious, and never coherent. Some of them imply the author is a hypocrite for merely having a copyright in his work, even though it’s automatic and impossible to get rid of. Some of them imply it’s hypocritical even to sell one’s book if one does not believe in copyright, even if the author doesn’t mind others copying it. They seem to think that if they just make this challenge, they can prove that copyright is justified. It’s bizarre. Others argue that I’m a hypocrite because I’m a patent lawyer, and oppose IP—and that if N. Stephan Kinsella is a hypocrite, why, that proves that IP is valid! QED! (See 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.)

The latest example of the smart-ass approach involves the aforementioned Romanian translation. Someone took the translation, stripped off my name, and reposted it on another site, with an Intel-Inside like logo saying “Commie Inside.” Below is the first part of it, with automatic translation from Google Translate:

Against intellectual property

Today I translated this pamphlet in support of communism. You can contact me at the address [email protected] for account details where you can make cash donations (fiat), the physical address where you can send donations and more money (gold), or the destination bitcoin 48NDR15end1glt6flnXfty2isd3LZw4jmK2saQ, noting that when bitcoin system will be broken and their infinite replication will be possible, funds will return to your property (to everyone), obviously the quotations bitcoin today (12/30/2012). Text can be purchased in physical form extremely rare autographed poster for $ 100 (one hundred) RON (edition 2012), Euro, U.S. Dollars $ $ $, Swiss francs or gold grams choice, do not offer credit . I thank Karl Marx brother Groucho idea and for a sense of humor. This text is original.

He seems to think he will anger me by taking my name off, by asking for donations, by calling me a commie, and by dishonestly stating that his “text is original.” Why would I care? Do as you please, Mr. Pro-IP Romanian. I’m happy to call your bluff. I hope you make some money off of this, but I doubt you will. All you did was impose a cost on yourself (time, effort) for no purpose whatsoever, since you made no point at all, and put forth no coherent defense of IP whatsoever. If you are trying to show what horrible things would happen in a copyright-free world … you failed, because this harms no one.

This is not the first time something similar has happened. For example, as I noted in Russell Madden’s “The Death Throes of Pro-IP Libertarianism”,

One “Russel Madden” emailed me the following article, with the note, “SURE. NO SUCH THING AS INTELLECTUAL PROPERTY…” The title of Mr. Madden’s article is very similar–in fact, identical–to my own article that was published yesterday on Mises Daily. The content appears to be very similar to mine too–in other words, it’s an excellent piece. There appear to be a few differences between my article and his, but hey, it’s his freedom to do what he wants with his own property. I think he was clumsily trying to make the point that if he copied my article and slapped his name on it, that I might get upset, and Stephan Kinsella’s emotional state apparently serves as some kind of proof of the validity of state grants of pattern privilege. Or something. Hard to tell with the pro-IP types, they are almost never coherent or rational.

And Mr. Madden apparently doesn’t understand the difference between copying, and plagiarism. Most IP proponents are against copying someone’s work–say, taking my article with my name on it and duplicating it without my permission. They are not so worried about “plagiarism,” which is a different thing altogether. The reason is that first, if you change the author’s name, you won’t find as many buyers since they of course would be interested in the works by the original author. Mr. Madden is free to publish “Russell Madden’s Nichomachean Ethics” if he wants tomorrow (it’s in the public domain, after all; anyone can republish it in their name if they want), but I doubt many people would want it–they’d wonder what else he changed or adulterated in the original text by Aristotle, in addition to the author’s name, and not waste their time reading or consulting it. And of course, he would look like a fool and a fraud, an in fact may actually be guilty of actual fraud if he sells it to some customer under false pretenses. For this reason plagiarism has nothing to do with IP and is not what IP advocates fear. They don’t fear plagiarism, they fear complete duplication. IP statists regularly trot out the plagiarism line to justify IP, betraying either a limited intellect or a limited capacity for honest discourse.

In any case, I wrote Mr. Madden back as follows (slightly revised):

Very nice! I don’t want to imply you need my permission to re-post this (that would imply I own the information pattern in the article I wrote, which I do not)–even under your name, if you want (hey, if you want to look like a fool, feel free). But if you would like my permission, you have it. I do not mind at all. Do WHATEVER YOU WANT with it. Repost it under my name. Repost it under your name. Repost it with no author name on it. Modify and and repost it under your name. Put 5 typos in it. HAVE AT IT. My own article is still up at Mises.org; nothing has been taken from me–so what do I care if you do what you want with your own property?

INTELLECTUAL FREEDOM!!

Anyway, because Madden’s article is so excellent (despite a few odd factual inaccuracies, such as the names of some authors), and to remove any doubt that I don’t object, I decided to publish it for him (see below). Game, set, match.

Another example is in the comments thread to a Mises blog post, The Socialism of Agri-Patents (archive), where a nym, hayeksheroes (March 7, 2011 at 11:51 am) wrote:

I just downloaded Jeffrey’s book, Bourbon before Breakfast. I think I’ll make a copy and re-title it, Whisky before Le petit déjeuner. You’ll be able to get a copy for $10.00 on Amazon. That’s a 50% lower than Tucker’s book.

In response, Doug French, then the President of the Mises Institute, called his bluff, replying (March 7, 2011 at 1:20 pm):

Go for it. See if you can make the numbers work.

Of course it was never done. These guys are never serious. When you call their bluff, they slink away.

Another example can be found in the  comments thread to another Mises blog post (Intellectual Property Advocates Hate Competition), where one “DensityDuck” (July 19, 2011 at 6:05 pm) said:

“Think about what he is saying: it’s too risky to go into a given business because someone else might compete with you.”

Hey, I got an idea. I’ll take all of your columns, put my name on ‘em, then publish them as an ebook. I don’t plan to give you any credit of any kind. I’m sure you won’t mind; after all, you yourself say that one of the risks of business is that someone might compete with you!

Actually, whether I “mind” or not is irrelevant. If I have a nice hardware store and you open up a nicer one across the street I might “mind,” but so what?

The question is whether this would violate my property rights–and it does not. If I reveal information to the world I cannot whine if people use it.

(And as a matter of fact, though it is irrelevant, I would not mind at all. If you want to look like a fool by being a plagiarist, people will soon realize you are just silly. However if you put MY name on them, I would probably thank you and might buy a few to give to friends and relatives as gifts.)

(As a matter of fact my material, such as Mises articles, is generally published under CC-BY which means you are already licensed by me to use it however you wish–you can re-sell it, make derivative works, etc; the only restriction is you have to give attribution but that is not my wish, that is the only reliable CC license that is available; if I could release it to the public domain I would, if I thought CC0 was reliable I would use that. So just to be clear: I hereby give you a license to do whatever you want with any of my Mises columns to which I hold copyright. Put your name on it, if you want–but since you are a nym here and afraid to even use your real name here, I somehow doubt you will. Do it under DensityDuck if you want–I dare you.

Of course—he never did take up the dare.

Later on in the thread, DensityDuck makes the “make a million dollars” “argument” (July 20, 2011 at 12:58 pm):

Jonathan M.F. Catalán July 20, 2011 at 1:03 pm

Please, go ahead and do it. This is the worst kind of response to these types of posts. People make the same point, but we never see any reproductions of the texts in questions (despite the “threats”).

Stephan Kinsella July 20, 2011 at 1:18 pm

it’s not wrong. easy.

DD5 July 20, 2011 at 4:05 pm

Why is it always so easy, apparently according to you pro-IP guys, to “make a million dollars” off copying materials of others, as if the original thinkers never thought of the idea of making the million dollars themselves, or they are too incompetent to figure out a way themselves. It’s always the copycat who is the brilliant businessman making all the money without any effort.

And as Peter Surda (July 20, 2011 at 5:49 pm) wrote (quoting DensityDuck):

In any case, the whole idea behind these trolls’ challenges is preposterous. There are several points to note here. First, they often conflate plagiarism with copying and emulating. But plagiarism and copyright infringement are not the same and do not imply the other. If I publish the Bible or Aristotle’s Nichomachean ethics tomorrow under my name, it is not copyright infringement, but it is a type of plagiarism. But who would it hurt, other than me? I would be seen as a fool. At most, plagiarism is potentially a type of contract breach (e.g., a student in a university who agrees not to plagiarize), or maybe a type of fraud—if you mislead your customer as to who wrote the book he is buying. But how likely is this anyway? Nelson DeMille publishes his latest novel, The Panther; his fans gobble it up. If someone else published a duplicate of it under their name, why would DeMille’s fans want to buy it, even at a cheaper price? If the pirate is willing to change the author’s name, who knows what else he might have fiddled with.

On the other hand, if someone wants to remix or rewrite an existing book, or make a sequel to it—say, Atlas Shrugged, or Gone with the Wind, or Catcher in the Rye—so what? (For more on how the law handled this in the latter two example, see The Patent, Copyright, Trademark, and Trade Secret Horror Files and Book Banning Courtesy of Copyright Law; see also Atlas Hefts: The Sequel!) I might want to read someone’s sequel to Lord of the Rings or Atlas Shrugged, or perhaps a rewrite of the book with a different spin or literary style. As long as the new author is honest about what he has done, whose rights has he violated? No one’s.

And most cases of copyright infringement are not plagiarism: if I distribute a copy of the Lord of the Rings movies, I don’t claim to be the author.

In addition, just as there is a first-mover advantage for any entrepreneur who comes to market with a new product, the same is true of products that are in some ways more easily  imitated, like books or music or movies or even new inventions and technical innovations. One reason for this is that there are so many new artistic and technical creations introduced every year, it is impossible and expensive for pirates to copy them all; they must discriminate and choose the popular ones to knockoff, emulate, or compete with. But that means pirates have to sit back and wait to see which products, music, books, etc., are popular, before they know which ones to try to knock off. Which means, by the time you know which things are worth copying, they have already made a lot of money—that’s how you know they are popular.

Update: Another example, on Robert Wenzel’s blog, “Economic Policy Journal” (whatever that title means): A “Bullshit” Response from Jeffrey Tucker; see also Wenzel’s post Mises Institute: Do As They Say, Not As They Do? and my post Wenzel on Copyright and Patent.