Reddit Cofounder, The Band’s Ex-Tour Manager Debate SOPA, Antipiracy, And Levon Helm’s Legacy [Video]

by Stephan Kinsella on June 22, 2012

From a Fast Company post from a few months ago, an interesting debate between Reddit’s Alexis Ohanian and USC professor Jonathan Taplin (who is now attacking anti-IP artist Nina Paley, as noted by Mike Masnick in Why Do The People Who Always Ask Us To ‘Respect’ Artists Seem To Have So Little Respect For Artists?). Ohanian is great here, explaining how innovative solutions like Kickstarter and the willingness of creators to adapt to changing times and technology are a better solution that taxes and regulation. At the very end of the second clip, an audience member and Taplin try to trap Ohanian by saying that his position on music would imply he would be in favor of pirating or “stealing” the food produced by farmers and giving it to customers for free. He rightly points out that music is nonscarce, unlike food, but that if food were nonscarce—if you could “copy” a carrot and feed lots of people without taking the carrot away from the original farmer—then sure, he would be in favor of this kind of piracy. Fantastic! So many people are starting to “get it” these days—they recognize that copying, learning, sharing information, and competition are good, not bad; but of course, on the other wide, we have the gatekeepers and legacy oligopolists clinging desperately and with state help to their old models, and causing collateral damage as they thrash about in their death throes.

Reddit Cofounder, The Band’s Ex-Tour Manager Debate SOPA, Antipiracy, And Levon Helm’s Legacy [Video]

BY Austin Carr | 04-19-2012 | 6:11 PM

At Fast Company’s Innovation Uncensored conference, things got heated between Reddit and Y Combinator’s Alexis Ohanian and USC professor Jonathan Taplin, director of the Annenberg Innovation Lab, former tour manager of The Band, and friend of its drummer Levon Helm, who died the day after this debate.

On Wednesday, at Fast Company‘s Innovation Uncensored conference, Reddit cofounder and Y Combinator ambassador Alexis Ohanian squared off against professor Jonathan Taplin, director of the USC Annenberg Innovation Lab and former tour manager of The Band. The debate–which covered everything from antipiracy to SOPA to the current state of the movie and music industries–was vigorous, to say the least, with both Ohanian and Taplin passionately arguing their positions.

Lots has developed since the debate. First, Ohanian published an open letter to Taplin, in which he pushes modern solutions to problems between artists and the business models they rely on–in particular, he suggested The Band get back together for one more release. Then on Thurdsay, The Band’s drummer Levon Helm, who became a symbol during the Innovation Uncensored debate for the harsh realities of the music industry in the digital era, died.

We’ll publish Taplin’s response to Ohanian’s suggestion (which was, again, written before Helm’s passing) on Monday. And if the two want to keep the discussion going, we’ll keep providing the forum. In the meantime, catch up on how this all got started with videos from Wednesday’s debate below. The debate really heats up after opening statements, about 11 minutes in.

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The Absurdity of “Owning” Music: or, what do you do with CDs you’ve ripped?

by Stephan Kinsella on June 22, 2012

See also other posts and articles on the impossibility of “owning ideas.“

A recent minor controversy has erupted when a young NPR intern, Emily White, who, as one of her critics put it, “wrote a post on the NPR blog in which she acknowledged that while she had 11,000 songs in her music library, she’s only paid for 15 CDs in her life.” As noted in a post in support of Emily White (by someone coincidentally also named Emil White):

In the post, EW2 talks about how her boss recently moved his entire music library into the cloud (as have I, just like I’ve been moving my businesses into the cloud, making it easily internally accessible to our multi-city team). EW2 doesn’t think any of this is weird, it’s completely the norm to her. Just like when I shipped my massive CD collection home as soon as I digitized it if for any reason other than that I moved apartments quite frequently as a young person and lugging a large physical music collection around was almost impossible. Some music addicts pore over vinyl, others consume as much music digitally as possible because we can’t not (I’m the latter). To each their own. [See In Defense Of Emily White (The NPR Intern).]

This debate provides a good opportunity to illustrate some of the absurdities of the very idea of owning information and copyright law. Those who are in favor of copyright ought to give the following some thought. Copyright advocates—and, sadly, this includes some libertarians—maintain that a “song” (or a novel, painting, design, etc.) is ontologically a “thing” that can be “owned”. And that naturally, the owner should be the “creator.” However, under copyright law, customers who “buy” music do not actually own it. All they own is the concrete, material media which serves as a sort of substrate to embody or carry information, a pattern that can be detected by some mechanical music player to reproduce some pre-recorded sounds with some reasonable fidelity. For example, if I buy a vinyl LP or a CD, I own that physical object, but not the “copyright” in the patterns stored therein. When I buy it, I gain title to the physical stuff, and an implicit “license”, or permission, from the copyright owner, to “use” the item, and the copyright-protected information/patterns/logos therein, for certain purposes—basically, “personal use.” But I may not make copies of it, make a new song “based on” this one (that’s a “derivative work”), and so on. In fact selling or even giving the CD or vinyl LP to someone would be a violation of copyright, if not for the “first sale doctrine” which carves out an exception to normal copyright protection (which doctrine is currently under threat by the gatekeeper copyright monopolists—see Libraries: Prepare to burn foreign books, courtesy copyright law).

Another exception to copyright that has arisen is that owners of CDs and LPs can copy or “rip” the music contained on these media for backup or other personal, “non-commercial” use. So for example if I own a CD of Duran Duran’s Rio album, I own the physical CD and I have a license to use the copyrighted music on it for personal use; and if I copy that music to create MP3 files to load them into iTunes to play it on my computer and on my iphone or ipod, then under various exceptions this copying is generally tolerated, if only begrudgingly.

If I buy a physical media with a song on it, I own the media and have a license to the music on it. I can resell the item under the First Sale Doctrine, and I can copy it and make a digital backup of the file to play on my MP3 player. Now if I “buy” an MP3 or similar music file from Amazon or iTunes, I don’t own anything. I only have a license. So I cannot resell, loan, or even give the MP3 file as a gift to someone. After all, I might still have my own copy. So if I sold it to someone I still have it and so does my buyer.

But consider the case where I own a CD, such as the aforementioned Rio. I buy the CD fair and square. But I want to play it on my iPhone. So I rip it using iTunes. Now I have an AAC or MP3 version. I put the CD in a dusty closet for “backup” or archival purposes, but in all likelihood I will never use it again. Consider the following scenario:

The CD is lost in a fire. Am I able to keep using the MP3 file I ripped from it? I don’t see why not.
The CD is stolen by a thief. Now he has a copy of Rio. Am I still able to keep using my MP3 file? Who knows.
I give the CD to my nephew, a poor college student. Am I supposed to delete my MP3 file now?
I loan the CD to my nephew for a month. Am I supposed to “quarantine” the MP3 file for a month…? Who knows?!
My computer crashes and I lose the MP3 file. Instead of trying to find the dusty CD up in my closet, I find a pirated copy of the album and download it, replacing my formerly legitimate MP3 copy with the pirated one, instead of wasting time re-ripping the CD. Is that a copyright violation? Probably. Does this make any sense at all? No.
In the old days guys would make “mix tapes” for girlfriends. Sometimes you would record tracks off the radio, sometimes from LP’s or other cassettes, onto another analog cassette. Nowadays this or its digital analog would be considered “stealing.” But suppose you want to do this “legitimately.” You want to give your girlfriend an iPod loaded with 1000 great songs. So you have most of the CD’s, but you sense that you can’t rip them a second time, for someone else (you have ripped them all already for your personal use). So you buy 100 CDs, some of them a second time; you laboriously rip all 100 CDs; then you put this music on the iPod for your girlfriend. Now when you give her the iPod you don’t want to hand her a huge cardboard box with 100 CDs in it. She doesn’t want that. Just the iPod. So what do you do with the CDs? You can’t resell them, since that would presumably obligate you to erase her iPod. You don’t want to store them—most are duplicates. The only solution seems to be to destroy them. Have a good old fashioned book burning.

The point of all this is to show what absurdities, waste, and obvious moral outrages result from trying to treat nonscarce things (information and patterns) as if they are ownable, scarce things. This is one reason copyright (and similar things like patent) can never make sense and never be justified.

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Tucker on Spooner’s One Flaw

by Stephan Kinsella on June 15, 2012

I love Lysander Spooner—a great early anarcho-libertarian. But he was terrible on IP. He thought that an individual’s “right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with his right of property in material things … no distinction of principle, exists between the two cases.”¹ The great Benjamin Tucker, in his 1887 tribute/eulogy to Spooner, included in the recently released Laissez Faire Books version of The Lysander Spooner Reader, had this to say about Spooner’s “The Law of Intellectual Property”: it was “the only positively silly work which ever came from Mr. Spooner’s pen.” He’s right.

My friend Wendy McElroy:

Tucker was extraordinarily critical of Spooner’s IP stand. I think the only person he castigated more for IP was Henry George who rejected patents and embraced copyright. Since Spooner was much more extreme on IP than George, I expect the entire difference in Tucker’s response was the general fondness he felt for Lysander and absolute contempt he had for Henry.

Of course, Objectivists would say the opposite: that Spooner was good on IP but bad on anarchy.

Update: Another strikingly bad Spooner quote: “So absolute is an author’s right of dominion over his ideas that he may forbid their being communicated even by human voice if he so pleases.”

Also, on Tucker’s confused argument against IP, see Molinari on IP.

And see Benjamin Tucker and the Great Nineteenth Century IP Debates in Liberty Magazine.

See The Origins of Libertarian IP Abolitionism (“Spooner was out of his gourd on IP (I discuss him briefly in Against Intellectual Property, text at notes 32 and 48)”); Copyright is Unconstitutional: Update (discussing how copyright causes censorship and thus infringes freedom of press and speech, which is protected by the First Amendment, as discussed in an article that cites Lysander Spooner “approvingly on the one issue Spooner was bad on—IP … see Hart’s post 15 Objections to Copyright from 1855“); see also Sheldon Richman’s Takedown of Patent and Copyright: Patent Nonsense; For Liberty, Life and Property….But Not The Ownership of Ideas; The Four Historical Phases of IP Abolitionism (“As detailed by Wendy McElroy in works such as Copyright and Patent in Benjamin Tucker’s periodical Liberty and Contra Copyright, Again, early libertarian and proto-libertarians and anarchists in the late 1800s had vigorous debates on this topic. Lysander Spooner in The Law of Intellectual Property; Or an Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas (1855) had argued for IP but Benjamin Tucker deviated from Spooner, his mentor, and rejected IP”); McElroy’s “Contra Copyright, Again”. [↩]

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Libertarian Sci-Fi Authors and Copyright versus Libertarian IP Abolitionists

by Stephan Kinsella on June 14, 2012

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.

[Update: See also KOL387 | The Great IP Debate of 1983: McElroy vs. Schulman (forthcoming July 6, 2022) and links posted therein.]

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.
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”

Kevin Carson Says:
June 11th, 2012 at 11:50 pmI 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.

***

Update:

This was an email I sent to Neil. Subsequently we made up. See J. Neil Schulman, R.I.P.; “Introduction” to J. Neil Schulman’s Origitent: Why Original Content is Property.

But here it is:

From: Stephan Kinsella <nskinsella@gmail.com>
Date: June 14, 2012 5:48:54 PM CDT
To: “J. Neil Schulman” <jneil@jesulu.com>
Cc: Brad Linaweaver <blinaweaver@yahoo.com>, “J. Kent Hastings” <kh@nvpm.com>, Wendy McElroy <wendy@wendymcelroy.com>, “L. Neil Smith” <lneil@netzero.com>
Subject: Re: Game on

It’s not game on, Neil, because you have never taken this seriously, and never will.

You made a big mistake 30 years ago because of Rand’s confused bullshit, and you will never revisit your premises. It’s too late for you, apparently.

Your ideas are totally impotent in the libertarian community, but not in the statist world, so it is sad you continue to push for this confused, fascist bullshit.

I do not believe you are your comrades, confused by Rand, the criminal “Constitution”, nonAustrian economics, and ad hoc utilitarianism, have a real interest in truth on this issue. You are too invested in your own careers or the way you’ve thought aobut it for so long. Too bad for you. It’s sad, but mostly for you. In the meantime decent people will continue to suffer under the fascist IP systems that is the natural outcome of your totally confused ideas about property rights. I guess it is a testament to the ability of smart humans to compartmentalize that you are good enough on enough issues to actually be a libertarian, while maintaining all this cognitively dissonant nonsense.

My reply on your other FB thread followsl

Stephan Kinsella

Neil, the case against IP is so overwhelming that this is really patehtic. I have been searching for decades for a good argument for it. There are none. You don’t even attempt to provide any. I think, honeslty, what happenes is that in the early stages of a political philosophy, some people gravitate toward it, like you, who have limited ability to articulate its base; you then by a fluke of circumstance try to extend it, and since the movment is in its youth, you have little competition or even opposition. But really, this will no do. You argue by metaphor, analogy, and consequence, in an ad hoc fashion.

It is very clear to any intelligent libertarian who looks, that the IP rights you desire conflict with the standard libertarian rights in scarce means that we all agree with. You really have no way out of this. YOu resort ad hoc and in lurching fashion to utilitarianism, while saying you don’t; to consequentialism; to outmoded natural “law” arguments; etc. I mean here is your argument, neil:

“a novel is a thing. It is unique. Therefore I can use force to censor your speech”

“how can authors make a living in your free society?? i don’t know how!! Therefore…. there must, uh, be monopoly privileges.” Neil: a question is not an argument.

“You are parasites!” Therefore, there are property rights in ideas.

“I put my blood sweat and tears into my novel!” threfore there are property rights in ideas.

I mean this is beneat you, Neil. It is beneath anyone. It is beneath any libertarian. There are no property rights in “logos”. You made a mistake, Neil.You overextended your intellect. Your argument with Wendy back in 1983 soudns, to be honest like somthing some smart grad student would think up for a mock debate, but that he doesn’t really mean. No one, and I mean no one, takes this seriously.

On Jun 14, 2012, at 5:41 PM, “J. Neil Schulman” <jneil@jesulu.com> wrote:

Libertarian Sci-Fi Authors and Copyright versus Libertarian IP Abolitionists
by Stephan Kinsella on June 14, 2012
https://c4sif.org/2012/06/libertarian-sci-fi-authors-and-copyright-versus-libertarian-ip-abolitionists/

4tweets retweet

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 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

From: “J. Neil Schulman” <jneil@jesulu.com>
Date: June 14, 2012 6:02:15 PM CDT
To: Stephan Kinsella <nskinsella@gmail.com>
Cc: Brad Linaweaver <blinaweaver@yahoo.com>, “J. Kent Hastings” <kh@nvpm.com>, Wendy McElroy <wendy@wendymcelroy.com>, “L. Neil Smith” <lneil@netzero.com>
Subject: Re: Game on

I can smell your sweat flops, Kinsella.

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.
<commonsense210.jpg> 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”

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.

See Schulman: “If you copy my novel, I’ll kill you”. [↩]

See The L. Neil Smith – FreeTalkLive Copyright Dispute; Replies to Neil Schulman and Neil Smith re IP. [↩]

Costs of the Patent System Revisited. [↩]

Masnick on the Horrible PROTECT IP Act: The Coming IPolice State; SOPA posts. [↩]

Where does IP Rank Among the Worst State Laws?; Patent vs. Copyright: Which is Worse? [↩]

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. [↩]

See There are No Good Arguments for Intellectual Property; Schulman: “If you copy my novel, I’ll kill you”. [↩]

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. [↩]

J Neil Schulman
https://www.facebook.com/jneilschulman/posts/317947028289389?notif_t=share_comment

19 minutes ago ·

A reply to Stephan Kinsella writing at https://c4sif.org/2012/06/libertarian-sci-fi-authors-and-copyright-versus-libertarian-ip-abolitionists/

Stephan Kinsella misframes the controversy and thereby creates a debate between false alternatives. It is not pro-IP versus anti-IP. It is not pro-copyright or pro-patent versus anti-copyright or anti-patent.

The controversy when correctly stated is, “Do the natural law and natural rights theories that have historically supplied the core premises for libertarians opposing the State provide a rational basis for claims of property rights in the kinds of goods that can simultaneously be enjoyed by multiple users?”

An artisan makes a bed out of materials he owns. No property rights theorist relied on by libertarians argues that the bed-maker does not own the bed he made, and does not have the right either to sell it outright or sell usage rights in it, night by night, hour by hour, or minute by minute; or to sell the bed to someone who then has the right use it or to to sell usage rights in it. If the artisan retains ownership of the bed and merely sells rights to use it for specified periods of time, no property rights theorist relied on by libertarians argues that a user who has purchased a right to use the bed for a specified period of time may carry the bed away as his own.
There is clarity here.

Where clarity fails is in a case where an artisan makes a novel — a specific sequence of words that tells a longish story — made out of describing some elements that exist in the real world, using some elements that are common coin to all storytelling, and adding some elements of character or situation that are unique to this sequence of words; but in all cases resulting in a unique fixed sequence of alphanumeric characters.

There are other cases that can involve fixed sequences of musical tones, or fixed created imagery, or fixed sequences of motion pictures and sound, or new and unique material configurations that perform utilitarian functions, that can also be brought into this discussion; but arguing the case of the novel is clear enough to establish principles that can be applied to the other cases later.

What is in controversy about ownership of a novel — a specific and unique alphanumeric sequence which functions as a storytelling device — is that unlike the bed that can only be used by one or at most several users at the same time, thousands or even millions of users can simultaneously use the novel. If the novel had first been invented in recent times it might well have been called a Massive Multiuser Storytelling Sequence — an MMSS. Certainly, on that weekend in July 2009 when the seventh Harry Potter book was released with fifteen million copies sold in the first 24 hours by purchasers who began reading it immediately, J.K. Rowling’s Harry Potter and the Deathly Hallows was unquestionably an MMSS.

Stephan Kinsella would challenge J.K. Rowling’s exclusive ownership and right to license the use of the thing she made by arguing each “copy” of the novel is a discrete object with nothing in natural law or property rights theory to prevent a purchaser from making as many additional copies as he desires onto his own materials. Kinsella argues that the novel made by J.K. Rowling does not exist as a scarce good and that non-rivalrous use of it negages its possibility of being J.K. Rowling’s private property.

But Stephan Kinsella undercuts his own premise here when he quotes David Hume:

Kinsella: “The obvious truth is that the fundamental fact of scarcity (rivalrousness) is why we need property norms at all. This is not my observation. I mean David Hume realized this http://www.libertarianstandard.com/2012/05/30/the-amazing-hume/ and others have too — see note 57 and near text of Against IP: http://mises.org/resources/3582/Against-Intellectual-Property: ‘A little reflection will show that it is these goods’ scarcity—the fact that there can be conflict over these goods by multiple human actors. The very possibility of conflict over a resource renders it scarce, giving rise to the need for ethical rules to govern its use.'”

But there is such a rivalrous conflict over use of Harry Potter and the Deathly Hallows. Readers were desperate to read it long before J.K. Rowlings and her publishers made it available for their reading pleasure; and in fact Scholastic Books spent ten million British pounds in security measures to prevent what they considered premature release. (See http://en.wikipedia.org/wiki/Harry_Potter_and_the_Deathly_Hallows)

Absolute unavailability against high demand is the very definition of scarcity — and the efforts to maintain that scarcity until the market conditions met the property owner’s demands are the Humean proof Kinsella himself requires for the property-rights theory he tells us he relies on.

To regard the novel Harry Potter and the Deathly Hallows not an ownable trade good because millions of readers benefit by using it is to negate the very reason Hume states for having property rights at all: “The very possibility of conflict over a resource renders it scarce, giving rise to the need for ethical rules to govern its use.”
The ethical rule that applies here is that J.K. Rowling owns novels she makes and I own novels I make.

Kinsella argues to me,

“Neil your mistake is in thinking that you own what you produce. You do realize that normal production just means transforming ALREADY EXISTING resoruces into more-valuable arrangements. You do not deny this, right? The reason you own the thing you ‘produce’ is that you already owned it. So what you do is you say “well if you shape metal into a sword, you own the sword you produced; therefore, I induce from this the general principle that you own whatever you produce.” Of course this is false. This is the core mistake. You own the swod you produce *because you already owned the metal*. I.e, you are engaged in equivocation: using ‘produce’ in two different contexts, but trying to import over implications of one to the other. Divorcing why you own the sword you produce, and just making a general rule: you own what you produce. therefore you own ideas that you produce too. etc. this is just a non-argument, which is why it’s so hard to respond to it in detail or seriously.” [I’ve corrected typoes in this quote, from a discussion at https://www.facebook.com/jneilschulman/posts/3998814969318]

Not only do I not deny that “normal production just means transforming ALREADY EXISTING resoruces into more-valuable arrangements” that is in fact the core of my argument why I own the novel I write. I have formed language into a unique story and set that story into a unique alphanumeric sequence. The novel is now an object that did not previously exist in the marketplace; that object is an object of ownership and trade; and it’s mine becaue I made it. Just like the bedmaker who has the right to determine who may use the bed he makes and under what conditions; the novelmaker has the right to detrmine who may use it and under what conditions — and the novelmaker is entitled to make those decisions to maximize his own benefits as the object’s owner.

The bedmaker’s claim is not over all beds or over all materials beds are made from.

The novelmaker’s claim is not over all novels or over all words novels are made from.

For both the bedmaker and the novelmaker, the claims are specific to the beds and novels he has made — and the property right over those specific objects to determine their use.

On the day J.K Rowling gave her authorization to a final fixed version of Harry Potter and the Deathly Hallows, it existed as a single unique trade good. On the day after fifteen million copies of that trade good were sold, there was still a single unique trade good, and she still owned it 100%, having licensed ONLY the rights for others to read it from media created to perform that function and enact that purpose. She reserved to herself as the novel property all other rights, including for her characters and story to be dramatized as motion pictures.

Additional parties who don’t enter into that contract for limited usage from any authorized dealer or lender don’t even have that limited right of use. The failure to obtain a right of usage does not create a right of usage. That’s why human beings invented the ethical concept of private property. A thing that is owned has its uses defined and agreed to by its owner’s specific grant of permission. Any use not specifically permitted by the owner is a property rights violation as justified by the David Hume quote Kinsella says he relies on.

Stephan Kinsella concedes every single element needed for property ownership of the novel then denies the inevitable conclusion that it is owned. He blusters about how many people agree with him, and how the tides of history are on his side.

He makes a category mistake in not admitting that a novel is a thing apart from the knowledge or imagination needed to form words into a story and record them in a set alphanumeric sequence, or from those things that store and transport that thing, and Kinsella attempts to negate the artisan’s property rights in this thing by falsely claiming non-scarcity and that mere use of something is a transfer of all property rights from its artisan owner to its user/consumer.

Stephan Kinsella’s argument would be obviously false even to a child if the non-rivalrous use of the bed was by Goldilocks when Mama Bear is not using her bed.

Apparently, the category-mistake that blinds Stephan Kinsella to a novel being a separate thing from that paper or computer media that carries it is a type of cognitive dysfunction as common to the current-day libertarian as is the common belief by the recipient of food stamps who is unaware they’re dining at a table laden with food by a taxpayer.

There is just a failure to connect the dots.

I herewith supply the pen to do it.

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Libertarian Sci-Fi Authors and Copyright versus Libertarian IP Abolitionists

c4sif.org

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

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Stephan Kinsella You ignore almost every salient point I make. I am sure that anyone looking at this objectively can see Neil’s manifest errors. You really have no argument whatsoever for your bizarre views.

16 minutes ago ·

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J Neil Schulman ‎Stephan Kinsella wrote, “You ignore almost every salient point I make.”

It’s your opinion that your points are salient. I challenge you on that belief.

Kinsella: “I am sure that anyone looking at this objectively can see Neil’s manifest errors.”

Your certainty is speculative at best, hubristic and megalomaniacal at worst. We shall see.

Kinsella: “You really have no argument whatsoever for your bizarre views.”

Your opinion, and you come across as panicking and resorting to hyperbolic ad hominem because it’s dawning on you for how many decades you’ve been engaging in arguments that are defeated by applying your own premises.

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Keep Calm and Carry On

by Stephan Kinsella on June 13, 2012

Interesting post from my friend Brad Rodriguez, with trademark implications:

Keep Calm and Carry On

I was delighted to find, recently, a T-shirt bearing this image. I think it’s the perfect antidote to the security/terrorism hysteria that has pervaded — or should I say, been inculcated in? — the U.S. since 9/11/01. Rather, this WW II image from the U.K. embodies Bruce Schneier’s repeated advice: “refuse to be terrorized, people!”

It turns out there’s a story behind this image and its rediscovery in 2000. (What fortunate timing!) And even though the image is over 70 years old, and was both created and released into the public domain by the British government, some idiots are trying to trademark the image. (And other idiots may be granting the trademark. Absurd.)

(Image from Wikimedia Commons.)

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Problems with the SOPA opponents’ “Digital Bill of Rights”: A Libertarian counter-proposal

by Stephan Kinsella on June 13, 2012

From ars technica, a report about a proposal from a couple of Congresscritters who opposed SOPA for a “Digital Bill of Rights,” to help maintain a free and open Internet. The proposal calls for these “rights”:

The right to a free and uncensored Internet.
The right to an open, unobstructed Internet.
The right to equality on the Internet.
The right to gather and participate in online activities.
The right to create and collaborate on the Internet.
The right to freely share their ideas.
The right to access the Internet equally, regardless of who they are or where they are.
The right to freely associate on the Internet.
The right to privacy on the Internet.
The right to benefit from what they create.

This has some promise, but it’s both under- and over-inclusive. Under-inclusive in that it doesn’t call for the abolition of copyright, or for a radical reduction in term and penalties. In fact it suggests copyright is some kind of “right” in its call for “The right to benefit from what they create.” But so long as copyright exists, it is impossible to avoid its free-speech and free-press suppressing effects. There will continue to be a “balance” struck between copyright and First Amendment type rights; i.e., free speech will continue to be chilled and suppressed (see my post “Copyright is Unconstitutional”). It is impossible to have “a free and uncensored Internet,” which the new Digital Bill of Rights calls for, so long as there is copyright. You cannot have both free speech, and copyright.

And it is over-inclusive in that it calls for things like “the right to equality on the Internet” and “the right to access the Internet equally, regardless of who they are or where they are.” These and some other proposals are troubling in that they are not clearly limits on government behavior, but potential authorizations to the government to limit private actors. For example these provisions could be used by the state to regulate private companies in the name of “net neutrality” or to provide some kind internet access as a positive welfare right or privilege. (See my posts Net Neutrality Developments and Internet Access as a Human Right.)

Congress should not be declaring “rights,” since it can then serve as a source of power to the feds to regulate private activity, much as the federalizing of the Bill of Rights by way of the Fourteenth Amendment has served not to limit federal power but to extend it to regulating state laws. Congress should do nothing but limit its own power, since it is the federal government that is itself the biggest threat to Internet and digital freedoms.

A better, simpler, more effective, and less dangerous proposal would read something as follows:

Copyright law is hereby abolished [or its term reduce to 5 years and statutory damages eliminated].
Congress shall have no power to regulate or tax activity on the Internet, including gambling or commerce.

Here’s the ars technica piece:

SOPA opponents unveil “Digital Bill of Rights”

Sen. Wyden and Rep. Issa want to protect digital citizens.

by Nathan Mattise – June 12 2012, 3:07pm CDT

SOPA

Analysis: “Cybersecurity” bill endangers privacy rights

Slow learner? MPAA chief hints at talks to revive SOPA

White House IP czar: anti-piracy laws should not block free speech

The “Digital Bill of Rights” debuted at the Personal Democracy Forum in New York City on Monday. The document draft comes from Rep. Darrell Issa (R-CA) and Sen. Ron Wyden (D-OR), two key figures in the battle against SOPA.

Issa and Wyden created the Digital Bill of Rights because they were concerned about what seemed like a legal oxymoron: lawmakers trying to regulate the Internet without understanding how individuals use it.

“Government is flying blind, interfering and regulating without understanding even the basics,” Issa wrote on his website, KeepTheWebOpen.com (you can find a draft of the Digital Bill of Rights there). “Where can a digital citizen turn for protection against the powerful?”

At the conference, Wyden likened this project to a digital version of the “Constitutional convention.” It’s a convention that Issa and Wyden hope Internet users will participate in. On Issa’s site, he openly encourages readers to consider the current draft and suggest revisions (at the publication of this post, several individuals have already logged in to take that offer). Currently, the ten key rights are as follows:

The right to a free and uncensored Internet.

The right to an open, unobstructed Internet.

The right to equality on the Internet.

The right to gather and participate in online activities.

The right to create and collaborate on the Internet.

The right to freely share their ideas.

The right to access the Internet equally, regardless of who they are or where they are.

The right to freely associate on the Internet.

The right to privacy on the Internet.

The right to benefit from what they create.

Have any edits for Issa and Wyden? Contribute directly (sign-up required) or add them in the comments below.

[TLS]

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“Defensive Patent License” created to protect innovators from trolls; probably won’t work

by Stephan Kinsella on June 12, 2012

Update: See the Rational Patent Exchange’s (RPX) Defensive Patent Aggregation Service.

***

From Boingboing. For related ideas, see my posts The Patent Defense League and Defensive Patent Pooling and Twitter Heroically Promises Not to Use Patents Offensively. This is an admirable attempt to deal with the inevitable problems flowing from the invention-monopolies from the patent system favored by IP “libertarians” (interesting how many libertarian sci-fi novelists happen to favor copyright, such as Brad Linaweaver, J. Neil Schulman, L. Neil Smith, and I guess throw in Ayn Rand and John C. Wright; just like most of my fellow patent lawyers favor the patent system, and most public school teachers favor government schooling ….).

As heroic as this effort is, I see problems with it. At best, it’s a way to deter lawsuits, but at a huge cost (obtaining patents in the first place to contribute to the pool). What a waste. And it does nothing to deter patent trolls. And why not let some companies who have no patents buy into the pool for money? If 1 patent gets you in as much as 100 patents does, why can’t you pay some fee to get in? And once you start using the pool, what is your incentive to continue to acquire patents? After all you can just free-ride on the patents others put in the pool, to use in countersuits defensively against possible patent aggressors. So these pooling arrangements can do nothing against patent trolls. At best, they stave off some lawsuits, and only cost tons of money to obtain patents whose only purpose is to ward off other patent suits, and giving rise to oligopolies in the meantime. It’s a horrible system. This idea only puts a little bandaid on it.

The boingboing post says: “It’s a license pool that companies opt into, and members of the pool pledge not to sue one another for infringement. If you’re ever being sued for patent infringement, you can get an automatic license to a conflicting patent just by throwing your patents into the pool. The more patent trolls threaten people, the more incentive there is to join the league of Internet patent freedom fighters.”

I don’t get this. Patent trolls usually don’t make any products, so they are usually not infringing any patents of their victims, or of anyone else. So how can the patent pool give you a “conflicting patent” (presumably, by this term they mean a patent that can be asserted in a countersuit against a patent plaintiff) against a troll–how can the threat of patent trolls give you more incentive to join the league, if the huge pool of patents can’t be used defensively against trolls?

As I wrote in the previous post:

One problem is that the PDL’s pool would be useless against patent trolls. However, patent trolls usually just want money. So they just serve as a kind of tax. But competitors often want to get an injunction to shut down the product lines of their competitors. Having to pay a “tax” to a troll is usually less of an existential threat to a company than is the patent injunction threat from a competitor. So if the PDL deters this kind of patent injunction threat, that is a huge benefit.

Even if these challenges do not prove insurmountable, it’s possible the state would torpedo this as some kind of antitrust violation, or some kind of patent “policy” grounds. Sounds absurd, but then the state does absurd things. On the one had, use of patents seems to be contrary to the spirit of antitrust law. Indeed, as I’ve noted in the past, there is said to be a “tension” between the federal antitrust law (which penalizes the formation of “monopoly power”) and patent law⁵ (which grants monopolies).⁶ And for this reason there has been talk of possible antitrust scrutiny of the Apple-Microsoft-RIM-et al. consortium’s $4.5 billion purchase of Nortel’s patents–the consortium beat out Google’s $3 billion bid, thus depriving Google of a defensive patent shield from patent suits against its Android smartphone platform by these and other competitors.

But one could imagine the state clamping down on the PDL scheme. After all, it’s unfair to let companies have too big of a defense against the patent threat. That would thwart the very purpose of the patent system, heavens to betsy! Or the FTC could jump in and claim that this pooling is anticompetitive, even though the purpose is obviously to permit competition to thrive, to block the anticompetitive effect of aggressive patent lawsuits. Who knows what the schizo feds would do.⁷

Now, as noted above, even if this scheme worked, it would be a huge waste, but maybe a necessary one, given the patent system. Still, it could reduce the barriers to entry and anticompetitive threats posed by patents. Maybe if there were millions of patents held by the PDL and other patent pools and by larger companies, but no one was using them for fear of retaliation, people would wake up and say, hey, why don’t we just get rid of this hundreds-billion-dollar deadweight loss on the economy? If we are not suing each other, why not just do that for free?

The subtitle to the ars technica post says: “The first rule of Patent Club is you do not sue members of Patent Club.” Exactly. But patent trolls won’t join any such defensive club. So how is this supposed to fend them off? Granted, patent trolls cost the economy a lot of money (see Patent Trolls Cost The Economy Half A Trillion Dollars since 1990). But patent trolls are not the real problem. As I note in Washington Post on Patent Trolls, Software Patents, and Patent Reform and Patent Trolls Are Preferable to “Practicing Entities”, the problem is not software patents, or patent trolls (“non-practicing entities”), or even “bad” or junk or low-quality patents. The problem is not incompetent patent examiners. The problem is not ambiguous or arbitrary nonobviousness standards, or inadequate prior art databases or searching capabilities. The solution is not patent reform, or reducing the term of or even getting rid of “software patents.” The problem is the good patents—”legitimate,” hiqh-quality, unassailable patents granted not to patent trolls but to practicing entities who use these patents and the force of law to squelch competition. Even if you get rid of all “bad” patents, all software patents, all trolls, all business method patents–the fundamental problem remains: companies can acquire patents that they can use to squelch competition.

In any case, here’s the Boingboing post:

Defensive Patent License: judo for patent-trolls

By Cory Doctorow at 2:57 pm Tuesday, Jun 12

Ars Technica’s Jon Brodkin has an in-depth look at the “Defensive Patent License,” a kind of judo for the patent system created by my former EFF colleague Jason Schultz (who started EFF’s Patent Busting Project) and my former USC colleague Jen Urban (who co-created the ChillingEffects clearinghouse). As you’d expect from two such killer legal freedom fighters, the DPL is audacious, exciting, and wicked cool. It’s a license pool that companies opt into, and members of the pool pledge not to sue one another for infringement. If you’re ever being sued for patent infringement, you can get an automatic license to a conflicting patent just by throwing your patents into the pool. The more patent trolls threaten people, the more incentive there is to join the league of Internet patent freedom fighters.

“The idea is if you want to be part of this network of defensive patent people, you are committing that all of your patents, every single thing you’ve done, will be available royalty-free to anyone who wants to take a license, if they commit to only practice defensive patent licensing,” Schultz said today in Boston at the Usenix conference on cyberlaw issues. “As long as they don’t offensively sue anyone else in that network, everything’s cool.”

The commitment is both daunting in that it requires submitting all of a member company’s patents to the pool, and forgiving in that members can still sue the pants off non-members. Schultz said his team thought long and hard about the exact implementation of the Defensive Patent License.

The “all-in” provision was put in place to prevent companies from joining the network while only providing their lamest patents. The ability of DPL members to sue non-members, meanwhile, preserves the right to monetize inventions. It also keeps members on a level playing field with non-members.

“Defensive Patent License” created to protect innovators from trolls

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Techdirt: Author Using Kickstarter To Offer His Book To The Public Domain, And Help Other Creators To Do The Same

by Stephan Kinsella on June 7, 2012

Good post by Mike Masnick about one author’s attempt to use Kickstarter for a “patronage” (perhaps it should be called “micro-patronage”) model for funding and rewarding artists, novelists, and other content creators. For related discussions, see my posts: Conversation with an author about copyright and publishing in a free society; Examples of Ways Content Creators Can Profit Without Intellectual Property; The Creator-Endorsed Mark as an Alternative to Copyright.

Author Using Kickstarter To Offer His Book To The Public Domain, And Help Other Creators To Do The Same

from the needs-better-production-values,-but… dept

I was recently alerted to an interesting project and organization seeking to get more new works into the public domain. It’s been started by Aaron Pogue, who self published some books last year, selling well over 100,000 copies, and allowing him to not just quit his job, but to start an entire organization focused on helping content creators get paid to put their works into the public domain. The goal is to use systems like Kickstarter and others to allow fans to support the organization, called The Consortium, to pay them a salary — just like a normal job — for which they can then create content to release into the public domain.

Pogue is kicking this off with an attempt to raise $30,000 for the third book in his trilogy. If he hits the goal, he’ll release the book into the public domain, allowing anyone to do whatever they want with it. Make a movie out of it? Go for it. Do a fan edit of it? No problem. Whatever you want, once it’s in the public domain.

That said, it’s not clear if he’ll make the goal, though it is an interesting project. I’m wondering why it hasn’t raised that much and I have a couple of theories: first, the production quality on the video with the Kickstarter project isn’t great. I know this isn’t always easy, but for some reason, projects with better quality production seem to just do better on Kickstarter. The other thing is that I’m wondering how many of the buyers of Pogue’s first two books in the trilogy even know about this offer. In fact, I wonder if this is one of the limitations of relying on a platform like Amazon — in that it can put a wall between an author and his or her fans.

Either way, I’m really interested in these types of projects. And it’s great to see people like Pogue out there — a successful artist — not just explaining that copyright isn’t “the only” way to make money as a creator, but almost certainly not the best way to make money. And then to take that even further, and to help other artists make money without relying on the crutch of copyright, is a very cool thing to see, whether or not this particular Kickstarter campaign succeeds. In the meantime, though, if you would like to show some support for this type of project, check out the Kickstarter campaign and see if you think it’s worth backing.

51 Comments | Leave a Comment..

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Kinsella and Tucker Discuss Patent Law on Peter Schiff Show

by Stephan Kinsella on June 6, 2012

I was a guest today on the Peter Schiff Show (guest host Jeff Tucker), discussing problems with patent law. Audio file here and streaming below. 1:00:55 to the end (about 20 minutes total).

[podcast]http://www.stephankinsella.com/wp-content/uploads/media/schiff-2012-06-06.mp3[/podcast]

Now podcast at KOL166.

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Schulman: “If you copy my novel, I’ll kill you”

by Stephan Kinsella on June 6, 2012

From a facebook discussion, IP libertarian and novelist J. Neil Schulman says to me:

You and your ilk have a problem with me and L Neil Smith that won’t disappear with the death of the State copyright laws. Make copies of our creative works without our permission and we’ll kill you. “Seno Akta Gamat!” [from The Fifth Element: “Never without my permission!”]

This is even more explicit than his previous, more subtle suggestion along these lines, in his logorights article:

anyone who attempts to violate my property rights in this logos should expect to hear from the legal firm of Smith & Wesson.

As I wrote in The Great IP Debate of 1983:

while Schulman, as an anarchist, to his credit admits that if it could be shown that his version of IP could be enforced only by state law, he would abandon it, he ends his speech with a very unlibertarian threat of murder: to sic the firm of “Smith and Wesson” on those who use the ideas they have learned from him.

And now he is saying he would just murder people who copied his novel without his permission. Ho-kayyyy. Need anything else be said about the lunacy to which the IP mentality leads?

Update: To his credit, Schulman has retracted his comment, after a long facebook discussion:

Stephan Kinsella: I didn’t mean it. It was wrong for me to say it. Of course I wouldn’t kill someone for a copy violation. I’ve never killed anyone and I pray to God that I’m never put into an actual situation where I have to use deadly force against an attacker.

I apologize.

This said, you make me seething mad and that’s why I wrote such emotional rot. The way you toss around the word fascist at lights in the world such as Ayn Rand and Brad Linaweaver is awful.

I think your principles are truly fucked up and I will continue to argue against them. Just more civilly.

Neil

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China “Steals” An Entire Austrian Village

by Stephan Kinsella on June 6, 2012

China elevates the art of KIRF, copies Austrian village of Hallstatt

In Against Intellectual Property, I described some of the absurd results that could flow from a consistent application of IP:

imagine the time when men lived in caves. One bright guy—let’s call him Galt-Magnon—decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins. But the first man to invent a house, according to IP advocates, would have a right to prevent others from building houses on their own land, with their own logs, or to charge them a fee if they do build houses.

Imagine how much worse it would be to copy an entire village! China in fact has done this, constructing “a full size replica of the Austrian village of Hallstatt, a small enclave in the Alps known for its tourism and salt production. The Unesco-recognized World Heritage Site was painstakingly recreated, down to the historic clock tower. All in all, it’s a stunning achievement ….” (China elevates the art of KIRF, copies Austrian village of Hallstatt, Engadget)

But of course, a consistent IP advocate would have to regard this as a massive act of theft. And this is why IP is also threatening the emerging technology of 3D printing, which permits people to fabricate duplicates of objects.¹ Copying, emulation, and “unbridled competition” are the bane of the IP advocates. In fact, some of the Austrian villagers were initially “angry and shocked” at the news that China would copy their village (from this BBC report), or “upset” (from this BBC report), though it’s never made quite clear what exactly they are upset about. But now the prevailing attitude seems to be one of bemusement or pride that their little village was “important enough to get a copy.” The town already hosts thousands of Chinese tourists every year. This publicity will likely only increase the tourism.

Marcin Jakubowski: Open-sourced blueprints for civilization; Pharmaceutical “Printers” and Patents; The IP War on 3D Printing Begins. [↩]

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Quaker “Oaks” Trademark “Thieves”

by Stephan Kinsella on June 5, 2012

Roderick Long followed links in this post and ended up on this post revealing a humorous exchange between a lawyer for Quaker Oats and some actual Quakers who dared sell Christmas trees under the name “Quaker Oaks.” Just another example of IP law gone amok.

Orange County Friends Meeting
Religious Society of Friends (Quakers)

Santa Ana, California

Quaker Oats threatens to sue us

Dear Mr. William Lovett:

I am the attorney at the Quaker Oats Company responsible for trademark matters. As you probably know, our company manufactures numerous food products, the most famous of which is oatmeal. In addition to having used the Quaker Oats name as our company name for close to 100 years, we have registered the Quaker name as a trademark.

It was therefore quite a surprise to discover that you are operating a business under the name “Quaker Oats Christmas Tree Farm.” Your use of our trademark is likely to mislead consumers into believing that your business is associated with the Quaker Oats Company. It is also likely to weaken our very strong trademark. In light of the foregoing, we hereby demand that you immediately stop all use of the “Quaker Oats” name…. While we would like to settle this matter amicably, we will take all steps which are necessary and appropriate to protect our name.

Sincerely
Janet L. Silverberg, counsel

Dear Janet Silverberg:

My breakfast this morning—rolled oats by the way—was interrupted by the arrival of your letter via FedEx, which was delivered to us despite the fact that you have misspelled our company name which is Quaker OAKS Christmas Tree Farm. Our farm was so named because religious services were held outdoors on this farm under a great oak tree until about ten years ago when we were able to move into our new Meetinghouse on another corner of our farm.

Our business is 100% owned and operated by Quakers. I suspect that your firm employs considerably fewer, if any, Quakers. We trace our Quaker ancestors back 320 years and they were mostly farmers, but I don’t know how many of them grew oats for your company. My guess is that you may be selling far more Lutheran oats, Methodist oats, or maybe atheist oats. Could your company be guilty of product source misrepresentation?

We don’t know why you choose to associate your commercial products with our faith, but we supposed you feel there is some marketing value from it. If you were selling machine guns, roulette wheels or some other product offensive to our Quaker faith, we would be upset by the association, but since we find your products wholesome and enjoyable, we consider your use of our name a compliment. We invite you to visit our farm to verify that we are indeed Quaker Oaks Christmas Tree Farm. If you come in December, we’d be happy to sell you a tree!

Sincerely,
William Lovett,
Visalia, California

Trademark law should be abolished. The only part of it that is justifiable is already covered by fraud law. Other examples of trademark insanity are listed here and in The Patent, Copyright, Trademark, and Trade Secret Horror Files.

{ 1 comment }

Economist: Pretty profitable parrots

by Stephan Kinsella on June 3, 2012

Good article at The Economist:

Pretty profitable parrots

For businesses, being good at copying is at least as important as being innovative

{ 1 comment }

Cost to Google to Pre-Screen YouTube Videos to Prevent Copyright: $37 Billion Per Year

by Stephan Kinsella on June 1, 2012

As I noted in Software Industry Needs 2 Million Patent Attorneys and $2.7 trillion per year to avoid infringing software patents, for the software industry to monitor and be sure US software patents are not infringed, it would cost literally trillions of dollars–far more than the entire industry is even worth. And now it appears similar absurd results apply in the case of copyright. As noted by Glyn Moody at Techdirt, it would Google about $37 billion per year to pre-screen YouTube videos to ensure no copyright infringement, about equal to Google’s annual revenue. In other words, for many key industries (I would argue for all) it is literally impossible to comply with these “property rights” and survive. Some property rights.

How Much Would It Cost To Pre-Screen YouTube Videos? About $37 Billion Per Year…

from the copyright-does-not-scale dept

Last week we reported that videos were currently being uploaded to YouTube at the rate of 72 hours every minute, and asked how anybody could expect Google to pre-screen such a deluge. Techdirt Insider xenomancer has gone a little further by working out how much it would cost to screen that material for potential copyright infringement, doubtless something the media industries would love to see imposed.

Most of the calculation is straightforward, but there’s one key variable: the kind of person who will do the screening. You can’t just use random people off the street, or starving artists, or bored software engineers, because the crucial question they must answer is: does too much of this video infringe on somebody’s copyright? Only one class of person is qualified to answer that, and hence to take on this job: judges. Or, more specifically:

horribly underpaid judges who happen to be extremely efficient at determining the copyright status of each video they watch and choose, of the little free will they have, to consider all video uploaded.

Using the fact that the average pay for a judge in Silicon Valley is apparently $177,454, and that based on the volume of uploads and number of hours in a working day, a mere 199,584 judges would be required as screeners, this gives us the final figure for the cost of checking properly those 72 hours per minute:

$36,829,468,840 per year.

Interestingly, Google’s revenue for 2011 was $37,905,000,000.

Absurd as this calculation may be, it does reveal the key problem with unthinking calls for YouTube videos to be pre-screened for possible infringement: only suitably-qualified individuals can do that, and eventually you run out of them. In other words, attempts to police rigorously online materials are doomed to fail by the nature of the copyright system itself. Basically, copyright does not scale.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

{ 2 comments }

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Dear Mr. William Lovett:

Dear Janet Silverberg:

Economist: Pretty profitable parrots

Pretty profitable parrots

For businesses, being good at copying is at least as important as being innovative

Cost to Google to Pre-Screen YouTube Videos to Prevent Copyright: $37 Billion Per Year

How Much Would It Cost To Pre-Screen YouTube Videos? About $37 Billion Per Year…

from the copyright-does-not-scale dept

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One Response to “Nobody Talks About Rights Club”

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from the needs-better-production-values,-but… dept

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Dear Mr. William Lovett:

Dear Janet Silverberg:

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For businesses, being good at copying is at least as important as being innovative

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from the copyright-does-not-scale dept

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