• Portugese translation of Against Intellectual Property;
• KOL070 | Interview on Red Ice Radio (Sweden) about Libertarianism, Property Rights, IP
• KOL069 | Thinking Liberty Interview on IP (2011)
• KOL068 | James Cox: Why Man Made Law Is Slavery!
• KOL067 | Patent and Copyright are Unconstitutional!
• KOL066 | LiveFreeFM with Nathan Fraser
• KOL065 | Guest on The Medical Freedom Report, with Michael Ostrolenk: Patents on Medical Technology and Pharmaceuticals (Feb. 24, 2011)
• KOL064 | The Katherine Albrecht Radio Show, discussing Net Neutrality (Dec. 22, 2010)
• KOL063 | “Live and Let Live” radio show with Gary Johnson discussing IP (Nov. 14, 2010)
• KOL062 | “Intellectual Freedom and Learning versus Patent and Copyright” (2010)
• KOL061 | “How Intellectual Property Hampers Capitalism” (Mises Institute 2010)
• KOL060 | Guest on Ernest Hancock’s Declare Your Independence radio show: intellectual property and libertarianism (2010)
• KOL057 | Guest on The Peter Mac Show: “Capitalism,” Anarchy, IP and other topics (2010)
• KOL 055 | The Voluntary Life Author Interview: Stephan Kinsella on Against Intellectual Property (2010)
• KOL 054 | “Ideas are Free: The Case Against Intellectual Property: or, How Libertarians Went Wrong” (2010, Property and Freedom Society)
• KOL 051 | Discussion with a Fellow Patent Attorney
• KOL 043 | Triple-V: Voluntary Virtues Vodcast, with Michael Shanklin: Bitcoin, Legal Reform, Morality of Voting, Rothbard on Copyright
• KOL 041 | Bad Quaker Interview re (what else?) Intellectual Property
• KOL 040 | INTERVIEW: Alexander Baker: Discussion with a Pro-Intellectual Property Libertarian
• KOL 039 | Renegade Variety Hour (Intellectual Property)

From Rick Falkvinge at Torrent Freak:

The Copyright Monopoly Was Always Intended To Prevent Freedom Of Expression

• Rick Falkvinge
• April 14, 2013

As I was explaining the need for copyright monopoly reform in Dublin this week, an elderly gentleman red-faced with rage exclaimed in the Q&A session that the copyright monopoly was absolutely crucial for freedom of expression. It surprises me that some monopolists still have things this backwards: the monopoly was always a gag on freedoms of speech and expression.

When Queen Mary I created the copyright monopoly onMay 4, 1557, it was a purebred censorship mechanism: in exchange for a lucrative monopoly on printing, the London Company of Stationers agreed to let anything printed first pass by the royal censors.

This was the norm for a long time in England, and the monopoly has been used to prevent freedom of speech since, with the exception of 1695-1710, as the monopoly did not exist during those fifteen years.

The examples are plenty of how the copyright monopoly has been used as a bludgeon against freedoms of speech and expression. From the landmark court case in 1765, when the Entick vs. Carrington case determined that authorities had no right to quell free speech unless the method used is specifically enabled by law, right up until modern times when the Finnish oil company Neste Oil disgracefully used the copyright monopoly to kill a legitimate Greenpeace protest site against the oil company (by threatening to sue the Internet Service Provider, to boot, and not Greenpeace directly).

The fact that the copyright monopoly is a limitation on freedom of expression, and therefore an interference with fundamental human rights, has even been confirmed recentlyby the European Court of Human Rights.

And yet, when you outline this very clear picture, some dinosaurs will insist that the freedom of expression only covers “your own” expressions, and not “other people’s” expressions, in an attempt to defend the legitimacy of the copyright monopoly. This is hogwash of the lowest conceivable quality. There is no such thing as “other people’s expressions” that aren’t covered by freedom of expression when I repeat them in a message of my own.

When I sing “Happy Birthday” to somebody, that is quite obviously a message of my own aimed at somebody having a birthday, despite my singing that song being an illegal violation of the copyright monopoly. It is therefore trivial to see how the copyright monopoly is an illegitimate limitation on freedom of expression.

Oh by the way, the Q&A session in Dublin ended well: after the elderly enraged gentleman had tried to “correct” my highlight of the need for copyright monopoly reform by reciting the entire arsenal of commonly-debunked arguments of the copyright industry, a younger professional took the microphone and calmly explained how pretty much every view I had expressed was perfectly in tune with his generation’s values. Everybody in the room took careful note.

About The Author

Rick Falkvinge is a regular columnist on TorrentFreak, sharing his thoughts every other week. He is the founder of the Swedish and first Pirate Party, a whisky aficionado, and a low-altitude motorcycle pilot. His blog at falkvinge.net focuses on information policy.

Book Falkvinge as speaker?

On This Week in Law #213, the hosts were discussing DRM and the upcoming X-Box One, and speculation, based on a Microsoft patent, about whether that system might move away from standard DRM to  “visual DRM“—an Orwellian system where the Kinect looks around the room with its camera, counts the number of people watching a movie being played, and asks for greater fees if it determines there are “too many” people in the room for a standard consumer/home license (go to around 1:05:13 for the beginning). Peter Biddle of Intel then mentions an experience he had years ago with secure digital music industry (SDMI)  people  trying to implement some kind of DRM for music similar to that used for DVDs and movies. He got frustrated and sarcastically suggested that the group lobby Congress to enact a law requiring every citizen to have a neural shunt embedded into the base of their neck to shut off the person’s eyes and ears when the device detects that they are observing watermarked content that they don’t have a license to watch or listen to. Instead of laughing at the absurd joke, or expressing dismay at the utter evil of this proposal, it generates a buzz of excitement among the music executives, and one of them asks, “can you do that?”

[Update: see various biographical pieces on my publications page, including Alan D. Bergman, Adopting Liberty: The Stephan Kinsella Story (2025).]

I became libertarian in 1982, as a junior in high school, after reading Ayn Rand’s novels and nonfiction books. (See more biographical material here.)

A few years later I was in law school and a nascent anarchist and Rothbardian, having by this time rejected Rand’s attacks on libertarianism and anarchism. And I had always had qualms about her pro-IP arguments.¹

And then in 1992 I started practicing law and soon started specializing in intellectual property and patent law. Hey, that’s where the money was. At the same time, I was starting to publish on various libertarian legal theory issues, such as rights theory. Naturally, given my chosen specialty and my interest in libertarian theory, my interest turned to the IP issue. I had tried for years to find some way to justify patent and copyright law, but by the time I finally started practicing and had passed the patent bar (1994), I had pretty much become a total IP skeptic. I started publishing articles critical of IP around that time, such as my “Letter on Intellectual Property Rights,” IOS Journal 5, no. 2 (June 1995), pp. 12-13, and my “Is Intellectual Property Legitimate?” Federalist Society IP Practice Group Newsletter (Winter 2000),² and then In Defense of Napster and Against the Second Homesteading Rule, LewRockwell.com (September 4, 2000) and “Against Intellectual Property,” Journal of Libertarian Studies (Spring 2001), which won the Mises Institute’s Alford Prize.³

At first I was leery of admitting, as a “respectable” big-firm and IP lawyer, my growing libertarian and anti-IP radicalism. I was worried clients or bosses or partners would not like it. But I gradually realized: none of them care. They just want lawyers who are competent; they don’t care about your personal politics. You want your airplane pilot and your brain surgeon to be competent, not of the same political persuasion as you. So gradually I shed my initial reluctance to reveal my views. In fact I still get contacted by people who want me to help them with patent law or other IP law issues—they don’t care that I hate patents and want the law changed; they seem to assume that I must know my stuff if I am so passionate about it. Odd (but rational, I think).

As I have often mentioned, IP was never my primary interest, either as a lawyer or libertarian theorist. As a lawyer, I enjoyed other types of law more—oil and gas law, international law, even family law (wills, adoptions, name changes, etc.)—but went into IP because in the mid-90s as a young electrical engineer-background lawyer, there was an intense and growing demand in patent law for such highly specialized and technically trained attorneys. Plus, patent law  is a national rather that state-based field of practice, which provides more interstate mobility; you are not locked into one state’s legal system, as you might be in fields like family law, oil and gas law, tort law, and so on. And in terms of libertarian theory, I focused on IP only because the issue nagged at me and I felt I had to figure that issue out and get it out of the way; but I was always more interested in other topics, like philosophy in general, epistemology, rights theory, contract theory, aspects of property theory, Austrian economics, and the like. But of course, as one of the few libertarians with a deep knowledge of IP law, over the years, ever since 2005 or so, whenever I am asked to give a speech or interview or contribute an article, the most requested topic is IP.

I initially felt a tug of annoyance at this pigeon-holing, but finally got over it, for a couple reasons. First, I’ve become convinced that IP is not a marginal issue; that is is one of the top 5 or 6 evils the state foists on us, and crucially important to get this right and to help libertarians, at least, to understand this. (“Where does IP Rank Among the Worst State Laws?“) Second, I’ve discovered that sorting all this out requires one to carefully think about and refine one’s thought on a host of related issues, from the nature and purpose of property rights to issues like fraud, defamation, anarchy vs. minarchy, legislation vs. common law, and contract theory.

So, I guess the IP issue is here to stay—until we can abolish it, that is.

1. Some of this is detailed in “How I Became A Libertarian,” in Legal Foundations of a Free Society. Some people reading this may also be interested in my posts New Publisher, Co-Editor for my Legal Treatise, and how I got started with legal publishing and Advice for Prospective Libertarian Law Students. [↩]
2. This article was based on a version previously published in the Pennsylvania Bar Association Intellectual Property Newsletter 1 (Winter 1998): 3, a newsletter I founded in 1997. [↩]
3. See also Roderick Long Finally Realizes IP is Unjustified. [↩]

A great anecdote from Jerome Tuccille’s hilarious It Usually Begins with Ayn Rand, about one of the stranger kooks in the libertarian movement, Andrew Galambos.¹ I quoted this way back in the Summer 1998 issue of the Pennsylvania Bar Association IP Law Newsletter (which I founded in 1997):

 Around this time I met the Galambosian.

“I am a Galambosian,” he said.

A what? I was beginning to feel like a right-wing Yossarian. All these mothers were out to destroy every principle I believed in! If it wasn’t squarejawed Southwesterners with mixed premises, or Ivy League intellectuals who mouthed off in public like truck drivers, or shifty-eyed carny barkers from the Middlewest, it was an S. J. Perelman character with a pipe and an ascot, telling me he was a Galambosian.

“What the hell is a Galambosian?”

There was this individual, it seems, named Joseph Andrew Galambos who evolved a theory of “primary property rights.”² Apparently, as soon as someone came up with a new idea—whether an invention or an original philosophical concept—the prototype belonged irrevocably to him and was to be regarded forevermore as his primary properly. Somewhere along the line Galambos picked up the notion that Thomas Paine had invented the word “liberty,”³ whereupon he established the Thomas Paine Royalty Fund, and every time he gave a lecture and used the word “liberty” he dropped a nickel into his fund box as a royalty payment to Tom. How he determined that a nickel was the proper measure of homage to Mr. Paine, I have no idea. Legend even had it that Galambos was still diligently searching for Thomas Paine’s descendants so he could turn over moneys due their famous ancestor.

Sometime in the early or middle 1960s, Galambos decided that his name, Joseph Andrew, was actually the primary property of his father. In order to avoid giving his father a royalty payment every time he spoke the name, Galambos reversed the order and sent out notices to all his friends that henceforth his name was Andrew Joseph, and that he was to be addressed as Andy, instead of Joe.

“There are five legitimate functions of government,” said the Galambosian.

“No kidding. What are they?”

“I am not at liberty to say. The theory was originated by Andy Galambos and it is his primary property.”

The Galambosian also informed me that Andy had been introduced to Ayn Rand several years before, and that after five minutes of conversation they had pronounced each other insane.

“Of course, it is Miss Rand who is really insane,” said the Galambosian.

“Why is that?”

“I’m afraid I cannot tell you. The reasoning behind that theory belongs to Andy.”

The most peculiar thing about the whole Galambosian concept was the impossibility of finding out anything about it. Galambos’ disciples were not at liberty to disseminate his philosophy without paying a royalty to their leader—who could not even waive payment, since primary property was an absolute good and could not be given away. You were stuck with it whether you wanted it or not, throughout eternity. Consequently, all the converts were those proselytized by Galambos himself—a time-consuming and self-restricting process, it being physically impossible to convert more than a handful of people at a time.

“If the rest of us were free to discuss his ideas,” said the Galambosian, “there is no question in my mind that Galambosianism would spread throughout the world like wildfire.”

1. For more on Galambos, see Galambos and Other Nuts; Galambosian IP Recursion; Shades of Galambos; Against Intellectual Property, p. 27). [↩]
2. Which he arguably “stole” from one “Stanislas de Bouffler,” haha! Was Galambos an IP Thief? [↩]
3. See Galambos on Paine.  [↩]

From Karl Hess and Robert Anton Wilson Discuss Everything, a Q&A session at a 1987 Libertarian Party convention, an audience member asks them about their opinion on “so-called intellectual property rights,” and Apple’s assertion of IP claims over its computer systems (at 1:13:53).

Hess first replies that he thinks IP rights are “difficult to enforce” and Wilson adds that “they’ll become impossible to enforce very shortly.”

There is then this interchange between Hess and the audience member:

Hess: “They’ve always been sort of crazy, they protect the person who gets there first. … It’s been my understanding all along that libertarians were glorified … by the fact that they very early on had attacked the copyright laws.”

Audience member: “But you’re both authors.”

Hess: “Yeah, sure, … maybe [the copyright laws] protect us in some technical sense, but I’d be happy to sell things in a free market.”

Audience member: “Would you mind if I took Death of Politics and sold it to make a profit without cutting you in?”

Hess: “People are doing it all the time. Look, I made money off that. I mean I figure, somebody bought it, it’s not mine anymore. … And people do it. People do it constantly. And I think it’s fine …  If I were asked to do it again today, I’d say I’ll do it on the condition that a lot of people read it. And this … may help it.”

Interesting article at Strike-the-Root by Lawrence Ludlow, Dante’s Divine Comedy and the Divine Origins of the Free Market, which makes some interesting connections between Dante’s Divine Comedy, the free market, and (anti) intellectual property theory. An excerpt:

In short, Virgil asks Dante to abandon his outmoded economic paradigm of command-and-control economics, where the Diktat of economic viziers can only derail the spontaneous order of things and undermine the natural benefits of a free market. Virgil is telling Dante that the wealth created by the free and spontaneous order is as abundant as the divine light emanating from the sun. One person’s enjoyment of it does not subtract from the enjoyment of another. And please, let’s not over-extend the metaphor by talking about shadows cast by individuals positioned more closely to the sun! We must assume that Dante is referring to a divine sunlight that probably does not cause cancer either! In an analogous way, Stephan Kinsella’s path-breaking work “Against Intellectual Property,” demonstrated that the concept of intellectual property (IP) is inappropriate for a similar reason.

Divine Sunlight, Intellectual Property, and Love

The shared understanding of a concept among more than one person merely expands with the number of people who share that concept. When greater numbers of people appreciate the concept of a wheel and the advantages that a wheel brings to the art of transportation, the sharing of this concept among many minds does not dislodge it from the mind of the person who originally conceived it. One person’s grasp of a concept does not subtract from another’s. In other words, there is no scarcity in the realm of understanding just as there is no scarcity in the availability of divine sunlight to all who are illuminated by it. That is why the concept of IP is an anti-concept and quite destructive. As Kinsella has shown, the concept of property rights was developed to resolve conflicts of ownership that apply to real, or physical, property – not intellectual concepts. Only physical property is afflicted by the burden of scarcity because the limitations of its physical nature imply that it cannot be simultaneously employed by more than one person. In other words, one cannot have one’s cake and eat it, too. But this concept does not apply to intellectual knowledge – which like the sunlight described by Virgil, shares a quality in which “the blaze of Love is spread more widely, the greater the Eternal Glory grows.”

As much light as it finds there, it bestows; (Verse 70)
thus, as the blaze of Love is spread more widely,
the greater the Eternal Glory grows.
As mirror reflects mirror, so, above, (Verse 73)
the more there are who join their souls, the more
Love learns perfection, and the more they love.

In addition, we can perceive here the overwhelming importance of love in Dante’s exposition. Just as the divine sunlight described by Dante’s Virgil is not diminished by its ability to illuminate many darkened minds, and just as Kinsella’s rejection of intellectual property and replacement of that anti-concept by the concept of shared knowledge demonstrates the undiminished capacity of a shared idea to transform countless lives for the better, love itself does not diminish in proportion to its being shared. Instead, it increases and grows tremendously in its impact. This is a powerful message, and it is one we should all consider deeply. From an anarcho-libertarian perspective, the writer Glen Allport has explored the importance of love as a means of emotional connection in his many valuable essays at Strike The Root – most particularly in The Doctrine of Love and Freedom. While I frequently fail in my attempts to incorporate Glen Allport’s approach in my sometimes-snarky essays, these failures cannot diminish the intrinsic value of the important message of free markets or the equally valuable message of love. I hope that this essay does much to make up for the deficit – shortening my own future journey through Purgatory.

From Jeff Tucker at Laissez Faire Today:

Does Innovation Require the Patent Office?

Jeffrey Tucker · May 10, 2013

 Two years ago, I spoke to a gentlemen who had started and sold four companies. He was currently working on a new project that sounded very promising (for all I know, he has already sold that one too). We had just heard a talk in which the speaker told people that the whole key to business success in our time is patent ownership. Without it, no business can really succeed.

Read more>>

From the Insurance Journal, more depressing evidence about the baleful effects of the anti-competitive, anti-property rights fascist patent system:

Patent Claims Causing Firms to Exit Business Lines: Study

May 6, 2013

Patent demands are taking a big toll on technology companies, with results that range from forcing companies to tweak their products to exiting their business altogether, according to a study from the Santa Clara University School of Law.

The study underscores the increasing difficulty of dealing with patent claims. Patents have become a major part of business strategy, with companies like Apple and Samsung battling each other in courts around the world in cases that could result in hundreds of millions of dollars in damages.

The SCU report, “Best Practices in Patent Litigation Survey,” focuses on patent demands from companies that do not themselves make anything. The report calls them “patent assertion entities.”

Many detractors call them “patent trolls.”

While PAEs have a bad reputation among technology firms, many patent litigants who do not make products or develop technology think of themselves in a better light. Many of them represent inventors, sometimes university researchers, who cannot afford to defend patents on their own.

Colleen Chien, an assistant professor of law at SCU, surveyed 116 in-house counsels, largely representing technology companies with more than $100 million in annual revenue.

More than 90 percent reported that patent claims from PAEs had affected them financially or distracted from their core businesses.

More than 80 percent said their customers had received PAE demands because the customers used or implemented products that were accused of violating a patent, and almost 40 percent said the claim had resulted in a change to the product.

About one-quarter of the companies surveyed said claims from PAEs lost them revenue or customers, or caused a delay reaching an operational milestone. About 12 percent said they had to tweak their business strategy as a result of a claim.

Around 8 percent said claims had caused them to delay hiring, or to exit a business line or business altogether.

From MacRumours:

EU Antitrust Ruling Says Google Abusing Patent Position in German Lawsuit Against Apple

Monday May 6, 2013 7:01 am PDT by Eric Slivka

The New York Times reports that Google and its Motorola Mobility unit have been found to be abusing their patent dominance in 3G wireless networking technology by the European Commission. The ruling, which comes in the form of a preliminary finding that could lead to formal antitrust charges but has yet to do so, addresses Motorola’s efforts to bar European sales of Apple’s 3G mobile devices over infringement of “standards essential” patents that Motorola is required to license under reasonable terms. Apple did briefly pull a number of devices from its German online store in February 2012, but they quickly returned after an injunction was lifted and Apple later won long-term protection from sales bans while its appeal in the case is heard. The European Commission’s report today calls Motorola’s efforts to enforce a sales ban based on these standards essential patents “an abuse of a dominant position prohibited by E.U. antitrust rules.”

Read more>>

As I’ve noted in previous threads, this is an example of the insane, mutually conflicting policies of national governments. On the one hand, they enact antitrust statutes to penalize private “monopolies,” even though the only real monopolies that are possible are those created by the state. Then, they create these monopolies by way of patent grants. They thus set up a “tension” between competing government “policies,” and this has to be “balanced.” Hey, I’ve got an idea—get rid of both patent law and antitrust law.

For more, see:

• Government Gives Samsung and Motorola Monopoly Patent Grants; then Probes them for “Patent Abuse”
•  Pro-IP Libertarians Upset about FTC Poaching Patent Turf
• When Antitrust and Patents Collide (Rambus v. FTC)
• The Schizo Feds: Patent Monopolies and the FTC
• IP vs. Antitrust

This type of schizophrenic behavior by the state is not limited to patents vs. antitrust law. It manifests itself in myriad was, e.g. the “tension” between copyright (and patent) and the first amendment (Blackmail, Copyright, Libel and Free Speech; Copyright Censorship versus Free Speech and Human Rights; Excessive Fines and the Eighth Amendment; Copyright is Unconstitutional), and other cases, e.g. Patents and Pot: Feds’ patents say medical marijuana is good, drug war disagrees.

Great find by David Koepsell: A book published in 1869, Recent Discussions on the Abolition of Patents for Inventions in the United Kingdom, France, Germany, and the Netherlands: Evidence, Speeches, and Papers in Its Favour: With Suggestions as to International Arrangements Regarding Inventions and Copyright, ed. by Robert Andrew Macfie (London: Longmans, Green, Reader and Dwyer, 1869; free epub and pdf download).

Too bad they didn’t win the day. And too bad none of the modern statesmen or mainstream scholars will even consider patent abolition, as opposed to tepid reform.

Interesting post from NPR about CERN’s decision in 1993 not to patent the basic protocol of the world-wide web. If they had not done this who knows what would have happened. (It is odd that they contacted law professor Mark Lemley to ask him whether the web could have been patented, as Lemley was never a practicing patent attorney. It’s like asking a podiatrist a detailed question about brain surgery. But what-evs.) CERN might have had a patent, but on what—on a moribund, unused protocol.

This is illustrative of the fact that many current technologies and practices would have been  retarded, more severely distorted, or even obliterated altogether, had IP been enforced as it is “supposed to be.” For a case in point, consider Microsoft’s OS (see Bill Gates’ 1991 Comments on Patents) and other technologies like laser printers and fashion (see Leveraging IP). And future technologies like 3D printing are of course imperiled even now by IP (see The IP War on 3D Printing Begins; Masnick, Don’t Let Patents Kill 3D Printing).

Pro-IP “libertarians” should consider this. The Internet (and the www) is possibly the single greatest tool for freedom in human history, and it has only been around for about 17 years; its existence was for a while tenuous, and could have been retarded, severely distorted, or even extinguished, by a fluke of IP law. This is yet another demonstration that  IP is a blight on humanity, progress, technology, and liberty. (h/t Shayne Wissler)

‘The Single Most Valuable Document In The History Of The World Wide Web’

by JACOB GOLDSTEIN

May 01, 2013 1:00 PM

Twenty years ago this week, researchers renounced the right to patent the World Wide Web. Officials at CERN, the European research center where the Web was invented, wrote:

CERN relinquishes all intellectual property to this code, both source and binary form and permission is granted for anyone to use, duplicate, modify and redistribute it.

It’s a dull sentence from a dull document. But that document marks the moment when the World Wide Web entered the public domain — a moment that was central to creating the Web as we know it today.

I emailed Mark Lemley, an intellectual property expert at Stanford, to ask him about the counterfactual. Could the Web have been patented? And how would the world have been different if it had?

Here’s an excerpt from his reply:

It is entirely possible that the Web could have been patented. A strong patent right would have driven innovation along a different path.

Even in 1993, as the Web was being introduced, scholars and the government interested in data communications were talking about the “information superhighway,” a proposed centralized, government-sponsored broadband network that would have delivered video from TV stations and other approved content. [It is this, and not the Internet, that Al Gore “invented”].

The Web is what happened from the bottom up while government and the telecommunications companies were still figuring out how to build something from the top down. But a patent right could have changed the course of innovation from the decentralized Internet model to a centralized information superhighway model. And we would all have been the poorer for it.

This week, a CERN spokesman called the document “the single most valuable document in the history of the World Wide Web.” There might be a bit of hyperbole in that statement. (It came from a guy sometimes called the half-spin doctor.)

Still, at a moment when the technology world is swamped in patent lawsuits, it does seem worth pausing to appreciate the moment when a group of researchers renounced their intellectual property rights to patent and gave the World Wide Web to the world.

As reported by ars technica, Fox is using federal copyright law and the DMCA process to bully author Cory Doctorow. His novel Homeland has the same title as the Fox television series, but otherwise has nothing to do with it. Having the same title is not a copyright violation as titles are too short to receive copyright protection:

Not that Homeland: Fox sends bogus takedowns for copyright reformer’s book

DMCA takedowns hit a surprising target: writer and activist Cory Doctorow.

by Timothy B. Lee – Apr 22 2013, 5:50pm CDT

Homeland is a television show produced by Fox that debuted in 2011. It’s also the title of an unrelated novel written by author and copyright reform activist Cory Doctorow. And evidently, the system Fox uses to send takedown notices under the Digital Millennium Copyright Act can’t tell the difference between the two.

TorrentFreak first broke the news that Fox has been sending Google takedown notices for URLs like “http://tpb.piraten.lu/tag/Homeland-Doctorow” and “http://torrentreactor.net/torrents/6214335/Homeland-by-Cory-Doctorow.” Not only does Fox not own the copyright for these works, but because Doctorow published his novel under a Creative Commons license, distributing his work on BitTorrent is completely legal. This means that Fox’s carelessness may be causing legitimate content to be removed from search engine results.

“I have made inquiries about the possible legal avenues for addressing this with Fox, but I’m not optimistic,” Doctorow wrote on his blog. “The DMCA makes it easy to carelessly censor the Internet, and it makes it hard to get redress for this kind of perjurious, depraved indifference.”

Read more>>

See also Doctorow’s post Fox sends fraudulent takedown notices for my novel Homeland, and the discussion of this topic on the latest episode of This Week in Law around the 40-45 minute or so mark.

Fox probably did this automatically without reviewing the claim closely, but this just goes to show how federal IP law turns companies into legal bullies who can harm individuals without liability: Doctorow probably has little  redress for any damage caused by the DMCA takedown here, since the statute doesn’t provide one. Fox can just say “oops” and move on. (Though I suppose it is possible Doctorow-as-author may, in the end, benefit from the increased exposure and attention.)

Some people say examples like this just show that the DMCA should be “tweaked” or copyright “reformed.” But given that the pro-copyright movie and music pressure groups despise the DMCA safe harbor that somehow snuck past their radar when it was inserted in 1998, it would be positively scary if Congress were to consider amendments to it, since, if anything, the DMCA safe harbor (which has permitted companies like YouTube to flourish)¹ would be scaled back or eliminated. So: almost nothing positive can be done. We are stuck with an ossified copyright system and its DMCA take down system that permits censorship and legal bullying.

(If we are to have any “improvement” to copyright, it would be: radically reduce the term; get rid of statutory damages and criminal penalties; make the losing copyright plaintiff pay.) ²

Copyright is an abomination and should, of course, be completely abolished. It’s frustrating to have fellow libertarians and civil libertarians who say they are all in favor of patent and copyright “reform” (which never comes—or always comes as a copyright term extension or addition of a DMCA, always making it worse), while saying they are against abolition of copyright because they don’t want to throw the baby out with the bathwater. I say we do want to throw the baby out with the bathwater—if it’s Rosemary’s Baby.

Case in point is the author of this very ars technica piece, Tim Lee, who poses as a copyright reformer but is not opposed to copyright.³ And the same is true even of the victim in this case: Doctorow. See, e.g., copyright abolitionist Nina Paley‘s post Paley & Doctorow argue over Non-Commercial licenses, where Doctorow makes it clear is not in favor of abolishing the state’s power to grant copyright (which he calls “exclusive rights”). As he writes:

I support regulating the entertainment industry’s supply chain. Copyright as presently or traditionally construed might be a suboptimal rule-set for that industry (I think it’s historically tilted to the favor of capital against the interests of labor), but that’s not to say that there shouldn’t or can’t be a set of rules that govern that industry to ensure fair dealing and to redress inherent power and negotiation differences.

…  lots of policy questions are hard to get right; that shouldn’t disqualify them from consideration for regulation (other rules that are hard to get right include finance, building codes, zoning laws, child protection, etc — I’m OK with the state having a go at them, though, because I’ve seen that in the absence of rules, many of the outcomes are very bad indeed).⁴

Copyright permits bullying, distorts culture, leads to literal censorship of books and movies, imposes hideous costs on artists like documentary filmmakers, and is being used by the state to slowly strangle internet freedom in a web of anti-piracy polices and laws. There is not a single good thing about copyright law; it is rotten to the core and totally incompatible with private property rights, freedom, and the free market.⁵

Pro-freedom, pro-technology copyright reformers should come out with guns blaring against the injustice of copyright itself. It’s time to end it, not mend it.

1. See Veoh Wins Important Case Against Universal Music Over DMCA Safe Harbors Again; But Is Still Dead Due To Legal Fees.  [↩]
2. See, e.g.,  How to Improve Patent, Copyright, and Trademark Law; The SHIELD Act doesn’t go far enough: protect victims of all patent aggressors, not just “trolls”; Proposed bill to make losing patent trolls to pay legal fees of victims does not go far enough. [↩]
3.  Tim Lee and Lawrence Lessig: “some punishment” of Swartz was “appropriate”;  Reason‘s Tim Lee on Two Decades of Attempts to Enforce Copyright. [↩]
4. See also Doctorow: What do we want copyright to do?; Libertarian Sci-Fi Authors and Copyright versus Libertarian IP Abolitionists. [↩]
5. See my posts Death by Copyright-IP Fascist Police State Acronym; SOPA is the Symptom, Copyright is the Disease: The SOPA Wakeup Call to Abolish Copyright; Where does IP Rank Among the Worst State Laws?; Should Copyright Be Allowed to Override Speech Rights?; Copyright is Unconstitutional.  [↩]