I’ve just updated my Copyright/IP policy. No major changes, just some clarification. Let me know if I’ve left in any mistakes.
Hello again, readers. I’m working on a long post, tentatively titled “The Costs of Copyright”, but before that’s ready, I’d like to share with you something that was going to be in the post, but which I removed because it didn’t fit the tone I was going for, but I just couldn’t throw it out, so here it is now: I am taking three people who I’m inclined to disagree with, and finding things that we agree upon.
The three people who disagree with me are J. Neil Schulman (see my disagreements with him here), Alexander Baker (see here) and a mysterious fellow who I know only as Strangerous Thoughts. I haven’t publicly sparred with Strangerous before, but they’ve written posts like The ultimate justification for natural and intellectual property and The economic principles of intellectual property and the fallacies of intellectual communism, so you can see why I am inclined to list them alongside Alexander and Neil. But before I get to disagreeing with these fellows once more, I must first say nice things about them (one of these days, I’m going to say nice things about Jack Valenti).
First, about J. Neil Schulman. Neil wrote a little essay called Human Property, seeking to explain his views on what property is and what it should be. Sadly, early on the essay, he insists: “There is no more of a distinction to be made between “intellectual” property and “stupid” property than there are distinctions between any other kinds of property.” But! Just before Neil says that, he says this:
Nothing in a state of nature is property.
It’s only the application of human intellect to things found in a state of nature that makes anything property.
Why, that’s right! And it’s something that I’ve been overlooking.
As Neil puts it, nothing in nature has the stamp of ownership on it. There is no natural property. So how does property come into being? Quoting Neil:
Then come human beings who look around, put up fences, take stuff and turn it into other — sometimes brand new — stuff, and say to other human beings, “This which I messed around with is mine and not yours. Use it without my permission and there’s going to be big trouble.”
Now, when I read that, I remembered this phrase from Jean-Jacques Rousseau’s Discourse on Inequality:
The first man who, having enclosed a piece of ground, bethought himself of saying This is mine, and found people simple enough to believe him, was the real founder of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: Beware of listening to this imposter; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.
It seems that Mr. Rousseau and Mr. Schulman do not agree on the utility of the idea of “property”. Who is right? I say that J. Neil Schulman is right. To support Neil’s position, I quote Crosbie Fitch:
Tell a bear his cave is not his property because he has no government to legislate it so. Tell a wolf the carcass he’s enjoying is not his property because he has no government to legislate it so.
Property derives from privacy, the individual’s innate power and natural right to exclude others from the spaces they inhabit and the objects they possess. Governments are supposed to secure such exclusive rights – on the basis of equality – as opposed to whoever is the more powerful.
Rousseau saw property as a wicked institution, but Fitch does not agree, and neither does Neil, and neither do I. Animals recognize property just as much as humans. Birds do it (nests), bees do it (hives), even educated fleas do it (citation needed). The idea of property is a functional, useful idea. But it is an idea, and I thank Mr. Schulman for pointing that out to me.
Second, about Alexander Baker. In the comments on this recent post of his, he makes an excellent point, which I shall quote here:
“Use is only interfered with if the thing is physically interfered with.”
You’re free to define “use” that way, but then all you’ve done is smuggled your conclusion into your premise. With that definition, Kinsella could have written a very short book:
Property rights only apply to rivalrous things. Rivalrous means that use by one interferes with use by another. Interference must be physical. Therefore property rights only apply to physical things. QED.
And that is the sum and substance of what Kinsella did, although he goes on for 60 pages.
(Context: he’s responding to a commenter trying to nail down the definition of use, and he references this book by Kinsella.)
Now, to me, that sounds very reasonable! Why not make that a premise? But Mr. Baker is right to point out that it is a premise, and it’s important to question our premises, and it’s especially important to not assume what you’re trying to prove (except in mathematical proofs, but that’s a story for another time).
Finally, about Strangerous Thoughts. They’re new here, but it so happens that I have the nicest things to say about them (sorry, Neil and Alexander). I refer you to this post of theirs: The supply of and demand for rights and the fallacy of natural rights. I agree with the entire thing, and I will be basing this post on the theory that Strangerous offers therein. Here’s Strangerous’s own summary:
The pursuit of natural rights theory is a search for first principles that determine the unarguable right any human possesses at any time in any place. This idea cannot be transposed from theory to reality. In reality, rights only exist if they are enforced, and the enforcement of rights is limited by material scarcity. In a free market society there may be no avoiding positivist rights if costs must be suffered to have rights – each individual must pick and choose what rights to insure himself.
In other words, we cannot guarantee all conceivable rights, so we must economize. For example, we cannot grant ourselves the right to immortality. It’s too expensive! Generations have tried and failed to achieve it, without success, so it’s just not a good idea to try to guarantee it. Of course, none of us are very eager to die, so we grant ourselves the right to not be murdered. This is a much cheaper right, but it still comes at a cost: we must give up the right to murder. Most of us consider this right to be of very little value, so we give it up almost thoughtlessly, but it’s good to recognize that we have given up a right in exchange for a different right. Everything comes at a cost.
Now, all that said, what rights shall we grant ourselves? Here, like most libertarians, I take my cue from the viewpoint of individualism. As an individual, I exist independent of anyone else, and have the power to make my own decisions, just like every other individual out there. The libertarian style of economics, so often called “capitalism”, is better understood as economic individualism:
Economic individualism’s basic premise is that the pursuit of self-interest and the right to own private property are morally defensible and legally legitimate. Its major corollary is that the state exists to protect individual rights. Subject to certain restrictions, individuals (alone or with others) are free to decide where to invest, what to produce or sell, and what prices to charge.
This approach applies to civil rights as well. As Neil put in the title of one of his posts: No, Not Gay Rights — Individual Rights! I couldn’t have put it better myself.
Now let me get back to the subject of economizing rights. Since we’re trying to maximize individual rights, we must ask: “What rights do individuals want most, and what rights can individuals afford?” From here, we can turn to physical reality as our guide, to help us determine which rights an individual needs most to survive and which rights an individual is most able to secure for themselves. Crosbie Fitch, pondering a similar question, came up with this response:
Rights are the vital powers of all human beings. We have rights to life, privacy, truth, and liberty.
- We have a right to life, to protect the health and integrity of our minds and bodies.
– We have a right to privacy, to exclude others from the objects we possess and spaces we inhabit.
– We have a right to truth, to guard against deceit.
– We have a right to liberty, to move and communicate freely.
Regrettably, Fitch calls these “natural rights”, but the term here might be appropriate, because these rights stem from powers that we all naturally possess, and needs that we all naturally have! As such, we can describe them in market terms as high-value, low-cost rights, just the sort of thing that a free market in rights can effectively deliver. Better yet, the enforcement of these kinds of rights is subject to economies of scale: the more people have them and defend them, the easier they are to defend. By cooperating in mutual defense, we can strengthen our claims to these rights, lowering their effective price, which leaves us room in our “rights budget” to secure further rights for ourselves (or, alternatively, to take the time and energy that we used to spend securing our rights, and use it to secure other goods, such as material wealth of leisure time). This is called progress.
That was all going to be in the introduction, but I changed my mind. I hope you don’t mind me putting it here, to stand or fall on its own merits alone.
Today, September 19, is Talk Like a Pirate Day. But I have no need to do anything special for it. “Why not?”, you might ask, to which I reply, “I am already a pirate, and so are you.”
Perhaps you doubt that you are truly a pirate. But it is true! The monopolists who seek to control all life have branded as “pirate” anyone who will not conform to their exact specifications. Consider this news story from TorrentFreak: Copyright Holders Want Netflix to Ban VPN Users. It seems that the copyright holders are upset about people using virtual private networks to circumvent geo-blocking restrictions on services like Netflix. But here’s the thing: the people who use Netflix are all paying customers. They have to be. So the monopolists can’t complain about a lost sale here; these people, who they are calling “pirates”, are all paying to watch the shows. But it is not enough for the monopolists. They insist on having the right to geo-block, to only sell to certain places at certain times, and if you are in an unlucky place, too bad for you. They want your money, of course, but even more than that, they want control. And if you dare to escape from that control, then you are a pirate, even when you pay.
Not for nothing do I call copyright “a law for nobody”. It turns us all into pirates. So feel free to throw the occasional “Avast!” into your conversation, but don’t feel that you have to. If you want to talk like a pirate, all you have to do is talk like someone who values freedom, and you’re well on your way to piracy.
Cracked has been a consistent go-to comedy site for me for a few years now. They consistently deliver all manner of good, silly articles, such as 6 Bizarrely Sexual Easter Eggs Lurking in Kids’ Video Games and The 6 Most Terrifying Theme Park Rides Ever Built. Nice, light-hearted fun.
But lately, they’ve been getting more and more serious, and it’s got me worried. Not for the quality of the site, but rather for the state of the world.
One of the articles that first got me concerned was 5 Apologies to the Cops Who Beat Me Up for No Reason, written in response to one of the writers being raided by the police by mistake. I had heard of this sort of thing happening, thanks to the work of Radley Balko, but it had never happened to anyone I knew, or even anyone I had ever heard of. Then it happened to Soren Bowie. I think that was when the possibility of being attacked by the police as the result of a stupid mistake became real for me. I had seen all the cases documented by Balko, but then Soren laid out exactly what happened to him in that gently sarcastic style I love so much, and I began to emotionally understand the terrible reality. If the cops could bust up one of my favorite comedy writers, then they could bust up anybody.
Alas, this was only the beginning of the bad news coming out of Cracked. They gave me 5 Recent Trends That Make It Hard to Trust the Police (later followed by a Part 2), they told me about The 4 Worst Recent Police Fails in America, they described 5 Terrifying Ways Police Can Legally Screw You Over, they talked about 4 Reasons Police Are Starting to Look Like Supervillains (note that they changed the title of that article. They have a recurring problem with changing titles. And also a problem with inaccurate titles, but unfortunately that problem does not affect the titles I just listed). There’s been plenty of bad news about the police, and the comedians of Cracked have been unable to ignore it.
But just this week, it’s gotten really bad. First came this article, 4 Weird Decisions That Have Made Modern Cops Terrifying (the title and the URL on that one both got changed. I believe the original title referenced storm troopers). The takeaway from that article is that cops are utterly alienated from the people and communities they’re supposed to be protecting, so they have no empathy to prevent them from just attacking citizens. Then came 7 Important Details Nobody Mentions About Ferguson (the original title was all about farts… read the article, it’ll make sense). Farts aside, the takeaway from that article is that the cops in Ferguson just cannot stop lying. They have given us no reason to trust them at all, and they keep arresting journalists and shooting people for no reason.
What I’m getting from all this is that cops don’t trust normal citizens like me, that they can’t be trusted, that they wield vast power over us (both legal power and firepower) and they’re hopelessly clumsy in using that power. This is the state of modern police work in America. There’s no getting away from it.
This is intolerable. If this is the best that our police force can do, then we’d be better off with no police at all. I say it’s time to consider abolishing cops entirely.
I’d like to return, for a moment, to one of my previous posts, Escape the Iron Prison. In that post, I touched briefly on the story of Columba (also known as Columcille, or Colm Cille, meaning “church dove”), 6th-century Christian missionary and book transcriber. But the breadth and length of that post made it hard to focus on any one aspect in particular, and I don’t think I gave Columba the attention he deserves. So today, we’re going to learn a little more about Columba, because he was a cool guy.
Unlike lucky folks like us who get to live in the future, Columba had to live in the past, and living in the past had a tendency to really suck. Instead of having far too many books, people in Columba’s day had far too few. The printing press wasn’t due to arrive in Europe for another 800 years or so, and that meant that if you wanted to copy a book, you had to write it all out by hand. This is not the sort of environment that produces an active file-sharing scene. But true fans will be true fans, and true fans copy and share, and Columba was a true fan of the Word of God.
According to Life of Columcille, Columba went to hang out with Finnian, his old teacher, and borrowed a book from him (specifically, a psalter). Columba thought that the psalter was just swell, and decided to make a new copy. Lacking the power to simply Ctrl+C/Ctrl+V, Columba wrote the new copy himself, and what a glorious writing it was:
On a time Columcille went to stay with Finnen of Druim Finn, and he asked of him the loan of a book, and it was given him. After the hours and the mass, he was wont to tarry behind the others in the church, there transcribing the book, unknown to Finnen. And when evening came there would be candles for him the while he copied, to wit, the five fingers of his right hand blazing like five passing bright lights, so that they lit up and enlumined the whole temple.
– From Life of Columcille, p.177
My hands do not get nearly that magical when I’m copying books. Maybe I’m doing it wrong.
Anyways, Finnian eventually decided that he wanted his book back, so he sent a young man to pick it up. The youth peeked in on Columba doing his copying, and was apparently quite amazed by it, but Columba didn’t like being peeked on, so he sent a crane to pluck out the youth’s eye. Remember, kids: respect people’s privacy… or else! Not surprisingly, this turn of events pissed Finnian off, so after healing the youth’s eye, he insisted that Columba give up the copy he had made. Columba refused and appealed to the local king to settle the matter. Diarmait heard them out and rendered the following famous judgment:
“To every cow her calf, and to every book its copy.”
Columba refused the king’s judgment, which prompted the king to send in an army, so Columba rallied his kinsmen and fought back. According to the legend, Columba even got God to intervene on his behalf, such that none of Columba’s kinsmen died in the battle, thus giving him and his folk a rather solid victory. Diarmait and Finnian went home empty-handed, and Columba kept his copy (the Catach of St. Columba is believed to be the book in question).
What a story! First, a man of God tries to make the word of God more abundant, but his teacher and mentor refuses to let him do so! He appeals to the king for justice, but the king sides with the mentor, so he appeals to God for help, and he triumphs! What a statement – that God is on the side of the copiers! And it’s worth reading Columba’s defense of his actions:
“I hold that Finnian’s book has not decreased in value because of the transcript I have made from it, and that it is not right to extinguish the divine things it contained, or to prevent me or anybody else from copying it, or reading it, or from circulating it throughout the provinces. I further maintain that if I benefited by its transcription, which I desired to be for the general good, provided no injury accrues to Finnian or his book thereby, it was quite permissible for me to copy it.”
The spirit of Kopimism is strong with this one. We need to tell this guy’s story more often.
And that’s why I’m proposing that we make Columba the patron saint of free culture and file-sharing. I’m not a Catholic, so I don’t know how the official system works for making someone a patron saint, but I think that we don’t need to wait for the Vatican to act on this one. Kopimism already has a gospel (provided here by Christian Engström); it’s time it had a patron saint as well. I nominate Columba.
Question for you, readers: would you eat a meal if you did not know the ingredients?
If you’ve got food allergies, the thought is probably enough to make you cringe. There could be anything in that mystery dish in front of you. How do you know it hasn’t got traces of something that will give you hives and diarrhea for the next 3 days? Best not to even touch the stuff. You can’t trust it.
Now, another question: would you eat a meal if you were not allowed to know the ingredients?
And when I say not allowed, I mean Not Allowed. You can’t ask what’s in it, you can’t test what’s in it, and if you try to guess what’s in it, you have to prove you’re not reverse-engineering the food or else you’re liable for infringement. You just have to take the chef’s word that it’s safe… assuming you can trust the chef, of course.
Would you eat this secret food? Would you feed it to your children? Would you even feed it to your dog?
If not, then why are you feeding secret food to your robot?
By “robot”, I actually mean your computer. And what is food for a computer? Software, of course! The code is what makes it go. Now, code is not exactly like food, but it is vital to your machine; it won’t run without it. And what is in this vital code? Chances are, you don’t know and you’re not allowed to know (according to this Wikipedia article, Windows still dominates desktop systems, and even OS X commands more share than Linux). Your computer is running off of secret sauce, and you have little hope of ever knowing what problems there might be with it.
So with this in mind, I think it’s time to take a fresh look at the old “open source” issue. Instead of asking, “Is open source better?”, we should be asking, “Why is closed source even legal?”
The fact is that closed source is a real danger to us, just as much as food allergies. Bugs and flaws in our software leave us vulnerable to attack from crooks and spooks, and trying to hide the source doesn’t slow them down at all (noted security expert Bruce Shneier has addressed this topic over and over and over – there’s no security in obscurity). Closing and locking the source only prevents honest people from finding and fixing the bugs. In addition, closed source software also creates a “lock in” effect, in which the vendor can essentially hold users hostage, because the users stand to lose so much data or productive capacity if they switch products. Monopolies of this kind are very lucrative, which is why closed source software persists, but they are inherently hostile to users, and they do not deserve any of the legal protections they currently enjoy (such as copyrights, patents, trade secrets, and end-user license agreements).
People who try to sell products to you, but insist on keeping secrets concerning the very products they are trying to sell you, are not worthy of your business. Don’t eat food if you don’t know what’s in it, don’t fund an agency if you don’t know what it’s doing, and don’t run software if you can’t see how it’s written. Open source is the only way to go.