Still disagreeing with J. Neil Schulman

A short while ago, before formally quitting Livejournal, I wrote a post in which I took J. Neil Schulman to task for his pro-copyright position (I’ve included the full text below the cut). Since writing it, I’ve had a few thoughts that I’d like to add to it.

First off, one thing that I wanted to include, but couldn’t find a place for, was a link to this response to J Neil Schulman by Kyle Bennett. Kyle opens up with this quote from Neil:

For now I would be entirely satisfied if libertarians and anarchists recognized my property rights in the things I create and respected my right to license copies, using no other enforcement mechanism than social preferencing.

He then makes this observation: “”Rights” to me, and I think to a lot of people, implies things that are legitimately addressed by force.” This, I believe, is the crux of the matter.

You’ve probably seen signs like this one, declaring: “Trespassers will be shot – Survivors will be shot again”. A harsh sentiment, to be sure, but an understandable one. Would you want people breaking into your house? Using force to retain and defend your physical property feels natural to us. We prefer to use social preferencing whenever possible, but when social sanctions don’t work, we have the use of force as a fallback. Like animals defending nests, we build fences around our property, and point guns at anyone who breaks through the fence, and still manage to live with each other.

But what about “intellectual property”? Could you use force to defend that? How would you go about it? Where do you build your fence? Where do you point your gun?

For Kyle Bennett, and for me, the answer is: “Nowhere, unless you want to be a tyrant”. Kyle observes that for all but a small number of edge cases, the only way to enforce copyright and similar IP laws is prior restraint and a guilty-until-proven-innocent legal system. In other words, you have to build your fences across other people’s property and point your guns at everyone, just in case. Quoting Matthew Alexander:

Barring restitution in a tort, the only way I can lose property rights in something is to voluntarily give them away, either in an exchange, as a gift or as a simple renunciation of my claim to the property. IP requires easements on all of the potential property in the universe simply because someone wrote a poem. Under an IP regime, I may have ink and parchment, but as soon as you draw a picture you may prevent me from doing certain things with my ink and parchment. You can also prevent me from chiseling your picture on a rock, or tracing it in the sand and snapping a photo. You would have easements on the property of beings in other galaxies you don’t even know exist. It is obvious, or should be for the libertarian, that Intellectual Property rights and real property rights are subject to a sort of Pauli Exclusion Principle, in that both of them cannot exist at the same time and in the same place.

It is no coincidence that the various technologies people have developed to enforce IP, such as copyright bots, broadcast flags, and trusted computing, all involve either ubiquitous surveillance or locking users out of their own hardware (or both). Schulman can bluster and threaten as much as he likes, but his Smith and Wesson is only good for threatening people who invade his physical space. If he wants to prevent people from copying his novels, he’ll have to invade other people’s physical spaces, and some of those people carry Glocks. And that’s assuming you can find out who’s doing all the copying. One of the perks of private property is that it helps you keep your privacy, and within the privacy of their homes, anyone can copy anything. So how will you know who you’re supposed to shoot, Neil?

My advice is to not shoot anyone, but rather to heed these wise words from Kyle Bennett’s post:

There are viable non-IP business models that can allow good artists to make a living, and mediocre artists to make some money. Find one that does not rely on state-enforced IP. IP, for the arts at least, is a dead letter regardless of what libertarians say. It’s a buggy whip, and the only market for it ten years from now will be sado-masochists. Deal with it and move on, or expect to keep getting smacked around. There is no “safe word” for economic pain.

Now that’s just good advice, even if you’re not libertarian. Embrace the freedom of information, and find something else that people will pay you for.

—–

Copied from LJ: Disagreeing with J. Neil Schulman, Posted on 2014.06.19 at 15:16

There’s a big disagreement currently under way in the libertarian movement over the subject of “intellectual property”. The Technology Liberation Front aptly summarizes our current internal strife near the bottom of the page in this little handy guide. After expressing a unified and consistent viewpoint about six different contentious issues, the TLF has this to say about IP issues:

“Cyber-libertarians are deeply divided over IP issues (especially copyright) and this reflects a long-standing division within libertarian ranks on these issues more generally. Some believe IP rights are a natural extension of traditional property rights and/or a sensible way to incentivize scientific and artistic creativity. Others believe no one has a right to “property-tize” intangible creations or that copyright is simply industrial protectionism. And there are many views in between.”

The second view (contra copyright and IP in general) is the view I sympathize with, and it has many fine advocates. I believe that the most oustpoken anti-IP libertarian is N. Stephan Kinsella, whose book Against Intellectual Property was and is a big influence on my thinking. But the first view has its advocates too, including no less than good old Ayn Rand, who declared: “Patents and copyrights are the legal implementation of the base of all property rights: a man’s right to the product of his mind.” The most prominent pro-IP libertarian that I know of is J. Neil Schulman who advocates a theory of “informational property” that he calls Logorights (after “logos”, Greek for “word” or “thought”).

I hate to disagree with Mr. Schulman, since he’s written some really good stuff, including this defense of Edward Snowden and this defense of Chelsea Manning. While so many others denounce them or dither over what to do about them, Neil calls them heroes and says that the only thing we need to do with them is listen to what they’re trying to tell us. I don’t personally know many people who would be comfortable openly supporting Snowden and Manning like that, so I want to thank Neil for doing so. So Neil, if you’re reading this, let me just say that by openly doing the right thing and supporting the whistle-blowers, you have made it easier for all of us to also do the right thing. I owe you one, and I hope I can pay it forward.

That being said, I still think Neil is wrong on IP, and I cannot rest as long as someone is wrong on the Internet. So, on to the disagreement.

Way back in ye olde 2009, Nina Paley and the good folks at QuestionCopyright.org made a little video called Copying Is Not Theft. Neil disagreed, and wrote a two-part response (part I, part II) in which he declared that copying IS theft, akin to identity theft, or forgery. Do give Neil’s stuff a read, so you can understand where he’s coming from. Got it all read? Good! Now then, please consider the following hypothetical.

Alice is talking to Bob, and Alice asks Bob, “Have you heard of J. Neil Schulman?” “No”, Bob replies, “can you tell me about him?” Alice begins telling Bob all about J. Neil Schulman, and mentions that Schulman has written a book called Alongside Night. Bob asks Alice for more details about Alongside Night. Alice describes Alongside Night to Bob in great detail… in fact, her description includes every word in the book, every punctuation and formatting mark, and even a good description of the cover image. If Bob has a good memory, he now has a full copy of Alongside Night in his mind, and he can use that information to make new copies to give to other people.

Now then, have either Alice or Bob committed identity theft? Have either of them committed forgery, or plagiarism, or counterfeiting, or any other kind of dishonest act? If they have done something wrong, what is the nature of their wrongdoing?

As I see it, the answer to the first two questions is “No!” There has been no dishonesty. Alice told Bob the truth, the whole truth, and nothing but the truth, and Bob simply remembered everything he heard. This behavior is often criminalized under the title of “copyright infringement”, but the substance of the act is simply telling the truth. If we call this a crime, then we are saying that it is wrong to tell too much of the truth. Calling such an action a “forgery” would be equivalent to saying that a high-resolution photo of a painting is a forgery of that painting, which would mean that this massive repository of digitized works is some kind of super-crime, and that this picture of money is a dastardly act of counterfeiting, to say nothing of this huge collection of freely copyable texts. I’m just not seeing the fakery here. So why, then, is Neil saying that it’s bad for Alice to tell Bob all that truth?

Now, under some circumstances, we do consider it wrong to tell too much of the truth. After all, how would you feel if your doctor told the whole world the whole truth about what she discovered during your last proctological exam? There are some things that we prefer to keep private, and when we have to reveal these things to someone, we try to constrain them to keep the information to themselves. I see nothing inherently wrong with this; I like the fact that my banker does not automatically tell everyone about my business with the bank, and that my therapist does not disclose what I talk about during my therapy sessions. But how well does this relate to the situation with Alice and Bob? I don’t think it fits very well at all; when Schulman published Alongside Night, he did so because he wanted the world to read it, and he continues to want the world to read it, as evidenced by the fact that he’s still selling it. So Neil’s not treating this as something private, he’s making it public… but he’s asking Alice and Bob to treat it as private.

No, seriously, look again at what he’s asking for in part I. Neil wants “the sole right to offer copies of things that are part and parcel of my personal identity”. So if Alice wants to tell the whole truth about Alongside Night, Neil says that she can’t because he owns the “logos” to his book, and like his logorights notice says: “This Work is licensed for reading purposes only. All other rights and uses, including the right to make copies, are reserved to its Owner.” But since telling the whole truth constitutes making a complete copy, Alice is denied the right to tell the whole truth, and Bob is denied the right to receive it from Alice.

Now, let me direct your attention to the two articles I linked to earlier, the ones Schulman wrote that say nice things about Snowden and Manning. Consider this: what it is that Edward and Chelsea actually did, that got folks so riled up? They told the truth. They told the whole truth, and they did it without permission. They took facts that powerful people wanted to keep private, and they made them public. The powers that be are trying to privatize the facts again, but the reality is that truth cannot be simultaneously public and private. A thing made public is in the public’s control, and no one has any power, let alone any “right”, to privatize something that has been made public, and this goes double when the person making it public (in other words, the publisher) is the one trying to make it private (by claiming a property right in the information).

It gets even better the deeper you look. Edward Snowden publicly supports EFF and Tor. Judging from some comments he’s made, J. Neil Schulman doesn’t seem to be a big fan of the EFF, and little wonder: the EFF, while not anti-IP, still supports limits on copyright and related rights well beyond anything that Neil is willing to concede in his theory of logorights. Also, while not totally opposed to copyright, the EFF is completely opposed to DRM – in other words, that “copy protection” that Neil puts on his books and movies when he sells them on Amazon, and then gets mad about when people crack it and start making copies. And then there’s the Tor sticker. Tor is a technology that helps people conceal and anonymize their online activity. You know what concealed, anonymous online activity is really great for? Copyright infringement, of course! When no one can see what you’re doing, no one knows what information you’re copying.

So why is Snowden supporting the EFF and Tor? The answer is: because he needed them. The technology that EFF and Tor make available, and the political causes they support, made Snowden’s leaks possible. Without their technical support, Snowden couldn’t have contacted the reporters who helped him spread the word, and without their political support, those reporters couldn’t have shared the truth about what the Five Eyes are doing. Snowden and his allies are still having plenty of trouble, but they would never have accomplished anything at all if not for the help of tools and policies that enable “piracy”. And just to drive the point home, let’s look at the case of Chelsea Manning. She could never have spread the word about war crimes in Iraq and Afghanistan without the help of Wikileaks. And who is it who hosts Wikileaks’s servers? The Pirate Party of Sweden, of course! And why not? Since online piracy consists of telling too much truth (according to the copyright holders), and whistle-blowing consists of telling too much truth (according to the elites), pirates and whistle-blowers are natural allies.

I’m hardly the first person to make this observation, and I’m not even the first one to make this observation in response to Neil’s writing. The pseudonymous dL, with whom Schulman has sparred in the past, wrote up this post: The Enforceable Obligations of IP & Copyright in Political Economy. dL’s point in that piece was that there’s no way to enforce copyright without ubiquitous surveillance. If we successfully abolished the State, but then attempted to enforce copyright or logoright, the resulting enforcement regime would swiftly develop into a new State, equipped with the power to invade privacy, to punish without trial, to control the spread of truth, to cripple our technology, and to tax and restrain competition and trade. No libertarian wants any of that, and even people who hate libertarians hate most of that stuff, too. But all of that is the natural result of copyright enforcement. Any attempt to prevent people from telling too much truth will inevitably hand power over to people who see the truth itself as an enemy.

We cannot risk that happening. We can’t trust anyone with the power to suppress the truth. If we would be free, we must be informed, and if we would be informed, then we must let information flow. We must deny to anyone and everyone the power to control our computers and police our communications. And if that means making copyright or logoright or any other kind of IP completely unenforceable, then that’s the price we have to pay. I’m not willing to let Big Brother watch me whenever I want to watch a movie.

Now at this point, pro-IP folks like Neil bring up economic concerns. Things like this:

“Or, I spend four years of my life and a half million bucks of my family’s dough — including fourteen cuts in an editing bay — making a movie. Then I put it up for sale on Amazon.com as a Video on Demand. Someone with software to get by any copy protection Amazon.com has takes my movie and presses it into DVD’s for sale in kiosks in Hong Kong… and, once again, as a Torrent. Now before I even get the chance to sell my movie for commercial distribution — which might get me back the cash, talent, and time invested in making this movie so I can afford to make another one — people are getting the benefit of my blood, sweat, toil, tears, and cash… and I am prevented from self-financing my next movie.”

Well, if money’s what you’re worried about, there are plenty of folks with good suggestions. Folks like Mike Masnick, Kevin Kelly, and Nina Paley. Nina Paley is especially worth listening to: she made a movie, called Sita Sings the Blues, and went many thousands of dollars into debt making it, and let everyone copy, share, publish, archive, show, sell, broadcast, and remix it without having to ask permission, and somehow still made a net profit! That being said, let me tell you how I really feel when I hear someone ask how they’re supposed to make money from art without the help of copyright:

If you can’t figure out how to earn a living without denying people the right to tell the whole truth, then YOU DO NOT DESERVE TO MAKE ANY MONEY. And if the only motive you have to make art is to make money off of it, then I DO NOT WANT ANY OF YOUR ART.

Now, let me quote one last sentence of Neil’s:

“The first claim of authorship of something I write is my byline attached to the writing. In a novel this is on the cover and title page. I write a dedication and acknowledgments, giving the work a purpose and a pedigree. On the copyright page is a claim of ownership — in land terms the posting of a “No Trespassing” sign, to stake out the boundaries of ownership.”

And finally, let me quote Woody Guthrie:

Was a high wall there that tried to stop me
A sign was painted said: Private Property,
But on the back side it didn’t say nothing —
This land was made for you and me.

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7 thoughts on “Still disagreeing with J. Neil Schulman

  1. I am not an advocate of Intellectual Property and it’s a straw-man argument as far as I’m concerned because I agree that ideas or “what’s in someone’s head” can’t be owned other than by the person whose head it is.

    What I do argue can be property are “media-carried property” — MCP, as I’ve tagged it — unique created objects that can clearly be distinguished from the media on which they are stored or displayed. If they are not unique things there’s nothing to be claimed or owned. If they are unique things, the argument for the propertarian libertarian is already made — and questions regarding how many carriers the “thing” can be carried on and how to best manage the ownership rights in a moral field between supplyer and consumer are secondary issues.

    My best argument for this is to be found in my article “Human Property” at http://jneilschulman.rationalreview.com/2012/06/human-property/ then follow the links at the bottom of the article to other articles I’ve written which discuss these primary concepts.

    I am wearied of arguing this so take what you can from what I’ve written and make what you will of it.

    J. Neil Schulman

    • Let’s consider this “MCP” for a bit, then. How does it apply to my scenario of Alice and Bob? If I understand you correctly, Alice still cannot transmit the information to Bob, because Alice does not own the “media-carried property”. You, the owner of “Alongside Night”, can transmit it to anyone and everyone, but no one else can transmit it, because you own it. In other words, “media-carried property” works almost exactly like copyright, with perhaps a few differences in administration.

      You can say that what you defend is not “intellectual property”, but the onus is on you to show how your MCP is different from IP. As far as I can see, the label of “pro-IP libertarian” fits you to a T. You might as well own it, just as members of the Pirate Party own the label “pirate” (I’m not officially a member, but only because they don’t have a chapter where I live).

      But more importantly, even if something is unique and distinguishable and created by humans, that doesn’t make it ownable. Ownership implies control. You can own your bed, for example, because you control it. If someone else wanted it, they’d have to take it from you, but then you could always take it right back. But information? It can’t be controlled! Information is naturally easy to copy and transmit, and anyone who receives it can copy and transmit it by themselves. Whereas matter can only be in one place at one time, and therefore subject to one owner, information can be everywhere at once. Trying to control information after you’ve made it publicly available is basically trying to homestead the entire world, because that’s the space where your information has spread itself out. You’ll never succeed, even with the power of the State behind you.

      A thing about property that I think you fail to understand is this: we don’t acknowledge property claims because we want to, we acknowledge them because we have to. As beings of matter, existing in space, requiring energy to survive, we NEED property. We need to control physical space and physical objects, just to stay alive. So we acknowledge each other’s needs and work out a way to let everyone get their own space and their own stuff. This is called ‘homesteading’. But in the realm of information, we have very different needs. We do not need exclusivity, which is good because we can’t have it. We do not need to control what others do with information. Instead, what we need is honesty, the transmission of accurate information. We need to tell the truth, and we need for others to tell the truth. But you, J. Neil Schulman, by advocating MCP/logorights, dare to tell the world that you have a right to prevent others from transmitting truths between themselves, because you own those truths, you OWN that information, and you will control it, physics be damned.

      I have no obligation to respect any ownership claim that doesn’t respect other people’s right to tell the whole truth, and I have no obligation to respect any ownership claim that doesn’t respect the rules of physics. It doesn’t matter at all how unique your novel is; since it’s not made of matter, the only way you can “hold” it is to not share it with anyone, and since you’ve already shared it with the world, it’s out of your hands. Bid it goodbye, for the world owns it now.

      Being wearied of arguing is no excuse for not reading my post and not responding to my arguments.

      (Side note: for some reason, my filter marked your comment as “spam”. What the hell, WordPress?!)

  2. Every objection you raise is an old one I’ve already covered exhaustively in my articles I’ve already suggested you read. I write things so I don’t have to immerse myself in endless recapitulation of old fallacies.

    • Let me tell you a little story. It has to do with “Alongside Night”. You will recall, of course, that you used to have a PDF copy available on the book’s official site, but you took it down after about 300,000 downloads. And why not? You didn’t even have to host in the first place; you can put it up or take it down as you please. Well, I wanted a PDF copy, and since you weren’t giving out anymore, I found another way to get one: the Internet Archive’s Wayback Machine.

      The Wayback Machine is an extremely useful website. It takes “snapshots” of websites at discrete points in time, recording all the information on them and making it available for general access. It’s great for finding deleted pages (people like to edit their sites to hide embarrassing information) or for finding pages that have just disappeared (ever have a site you loved that mysteriously went offline? You can find it again!). The Wayback Machine made a recording of your site, exactly the way you had posted it, complete with PDF file. I accessed their copy of your site, and got my PDF.

      At this point, you might be mad at the Wayback Machine, but consider what the machine is actually doing. It is merely recording everything it sees, in as much detail as it can capture, and then making that recording available. It is seeing reality as it is, remembering it, and sharing the memory. It is, in fact, telling the truth. And the truth is that your site had a specific PDF file publically available on it in the past, and the Wayback Machine told me the whole truth about that file, and my computer used that truth to assemble a new copy of the file for me. Voila, my own personal PDF of “Alongside Night”.

      I tell you this story not just to confess to an act of petty piracy, but to illustrate my point: the only way to prevent unathorized copying is to bar people from telling the whole truth. The technology necessary to prevent piracy is technology capable of controlling all communication and suppressing all truth. The technology capable of recording and revealing truth is technology that enables piracy (and by “piracy”, I mean file-sharing, not ACTUAL piracy on the high seas. Just so we’re clear)

      You claim that you have responded to this, but I don’t see so much as a passing acknowledgement of this in any of your posts. And this is a big problem, because frankly, the controlling of information and suppressing of truth is one of the biggest threats to modern liberty. Snowden’s revelations have made this abundantly clear: the State wants to control all communication. If we would be free, then we must have the power to communicate as we please, without the State monitoring or blocking us. To that end, people have developed technologies that allow for free, safe, private communication. But those technologies have proved themselves immensely useful for unauthorized file-sharing. In other words, if we want to be able to know the truth, we have to give people the power to pirate, and the historical record shows that when you give people the power to pirate, they pirate like crazy.

      What I am saying to you, Neil, is that Internet piracy is now a fact of life, and the only way it will ever stop will be if the State succeeds in trapping the world under total surveillance (let us pray that they fail). If the State fails, then people will have the power to copy and share at will. A majority of people will be small-time pirates, a minority will be full-time pirates, and no one will have the power to stop any of it. People will laugh at your claims of MCP, just as they now laugh at copyright notices. You can argue with the pirates until you drop dead of exhaustion, but they will win and you will lose, because physics is on their side.

      I side with the pirates because I want everyone to have the power to know the truth and tell the truth, and if that means that they can copy my words all they want, so be it. I’ll live. You’ll live, too. There are plenty of ways to make money in the absence of copyrights, and some of those ways still involve writing and selling books. So stop worrying about what other people are doing with your novels, and start thinking about what you can do with them to entice folks to buy.

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