A very long disagreement with Alexander Baker

As I’ve mentioned previously, there’s a split in the libertarian movement right now, over the subject of “intellectual property”. Some are against it, some are for it. One of the voices in favor of intellectual property rights (specifically in the area of copyright) is a fellow named Alexander Baker. He writes a blog called Intellectual Space, subtitled: “The Libertarian Theory of Intangible Property”. Here’s his brief explanation of his own blog:

Intellectual Space is a praxeological examination of property rights for intangible objects. I initially began thinking that a rigorous philosophical approach would support the anti-IP position prevalent in libertarian circles. The opposite has occurred.

This is an interesting challenge for me. Alexander Baker appears to share many of the premises I have, yet he arrives at a very different conclusion from mine, and he insists that it is the result of a rigorous philosophical approach. This indicates to me that something, somewhere, has gone wrong. Perhaps we do not share certain as many premises as I thought. Perhaps our logic has gone wrong somewhere. Perhaps we’re just miscommunicating, and we do not truly differ in opinion. Whatever the case, there is a problem somewhere, and this long post is my attempt to tease out that problem and fix it.
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J. Neil Sark wants to rule the Grid

So, back in my old post wherein I disagree with J. Neil Schulman, Schulman himself has dropped by to publicly disagree with me. This is good, because that’s exactly what a comments section is for. Anyways, in the course of insisting that he is right and I am wrong, he reminded me that his preferred term, instead of “intellectual property”, is “media-carried property”, or MCP for short.

MCP… where have I heard those initials before?

Oh, snap! End of Line.

Now, I doubt that Neil intended to reference the tyrannical Master Control Program when he picked the term “media-carried property”, but, nerd that I am, I can’t resist making the connection. And there is a deeper connection, but it is one that Neil has consistently refused to acknowledge.

Neil does not talk much about how to enforce claims of MCP. In his first post insisting that copying is akin to identity theft, he has this to say on the matter:

The questions of how copyrights, trademarks, and patents are currently defined and enforced by States are an entirely separate issue from the arguments I have been making since the 1980’s about property rights in identity and information objects.

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.

And… that’s it. The end! But I am not satisfied. This tells us nothing at all about what happens when social preferencing fails. What then?

Neil’s theories on matter-based property do not suffer from this lack. In the event that someone does not recognize your property rights in the physical world, Neil says that you have the right to shoot them, and he suggests that you carry a gun. He wrote a whole book on the matter, called Stopping Power (I haven’t yet read it, though I expect that I’ll agree with most of what it says). This is good, because you can’t expect social preferencing to always work. You need a backup plan when people break the rules, and carrying a gun is a good backup plan.

But what about when someone takes your media-carried property? What if they break through your copy protection and make it available as a Torrent? What do you do then, Neil? But he has never answered this question. This situation has been presented to him many times, by both friends and enemies, and he hasn’t even acknowledged it. This leaves a big, gaping hole in his theory of property rights in information.

Of course, Neil is not the first person to claim property rights in information. Many people before him have set out to do the same thing, and they have come up with solutions to fill that hole. Solutions like digital rights management, trusted computing, broadcast flags, notice-and-takedowns, ISP policing, and copyright bots. These all work together to do two things: take away people’s privacy, and take away people’s control over their own machines. And this is where Neil’s MCP runs into Tron‘s MCP. The only way to complete Neil’s theory, and provide information owners a means to defend their claims, is to control all communication. The entire network must be monitored and controlled, and any break-ins must be shut down swiftly and decisively. The media companies have known this for a long time, and they have fought to establish that control over the World Wide Web. To a great extent, they have succeeded. Their copy-protection schemes have infected all of our devices, and their monitoring systems hover over their world, ready to cut off and punish anyone who shares information without their permission. Like the Master Control Program, they reach into systems and appropriate programs and insist that they can run things better than we can.

Every time you get a DMCA notice, just imagine it’s from this guy. You’ll feel better.

This is a massive problem for Neil’s theory, because all of these measures invade people’s property and reduce their control over their own lives. Worse, they all work through the mechanism of State power, and they increase the State’s control over us. We can’t accept any of this. But then how can owners of media-carried property protect their property from invasion? Neil’s theory makes no sense anymore, because there’s no way to implement it. It’s as if he were advocating for the right of self-defense but refusing to let people own weapons. How does it work?

And what of the fact that these controlling measures are all being implemented? Here in the real world, the MCP is winning. Copyright laws continue to get stricter, anti-piracy measures continue to get more invasive, and ordinary citizens continue to get squeezed, and J. Neil Schulman, proud libertarian, is silent. If Neil will not fight for our liberty, who will?

Luckily for us, some people are smarter than Schulman. Like Flynn and Tron, they work to create systems where all information is free and open. They create open-source software that will not betray its users to outside controllers. They support laws that protect our privacy and our right to communicate. They find ways to crack DRM and defeat broadcast flags. They give us the power to protect our liberties. They go by many names: copyfighters, free software advocates, cypherpunks, pirates, and so on. But they all have one thing in common: they fight for the Users.

Real programmers do not normally wear cool outfits like this guy’s. Sorry, everyone.

If these people win, no one will be able to control the network. Information will flow freely. And instead of being a glaring contradiction, Neil’s theory of MCP will simply be left incomplete – permanently, fatally incomplete, like a human body without a heart.

And that is why I keep ragging on Neil. He never acknowledges this problem with his theory (that is, that claims to MCP cannot be enforced without the aid of a total surveillance state). He seems to consider the question of enforcement to be totally irrelevant. Well, Mr. Schulman, you’re wrong. No matter how many nerd jokes I make, I still have to live in reality, and in reality, your claims to media-carried property fail. People do not naturally respect such claims, and even when they try, those who do not respect such claims always have the power to ignore them. Even in our less-than-free society, piracy is easy and rampant, in spite of the State’s best efforts to crush it. Do you think that people will just stop pirating when the State is gone?

If the future is libertarian, then it will run on Free Software and distribute Free Culture, all the better to serve free people. So come on, Neil. Get with the program. Fight for the Users.

IP for people who aren’t wonks

After I wrote my recent post singing the praises of “Intellectual Privilege”, my accomplice read it and informed me that she got lost rather quickly. I took some time to explain what I was talking about, and in the process, I realized that I really need to explain myself more, in general. So, if you’re new here, or if you’ve been wondering what I’m going on about, this post is here to answer these specific questions:

What is “intellectual property”? Why are you against it? Why should anyone care?

First off: What is “intellectual property”? “Intellectual property”, or “IP” for short, is actually a rather broad term, which is unfortunate, but when people talk about it, they usually refer to the big four:
1. Patents
2. Copyrights
3. Trademarks
4. Trade secrets

Patents cover practical and scientific inventions. You can patent a mechanical design, a chemical compound, a bit of genetic code…things like that. They last for a short time (usually 20 years) and you have to apply for them to get them. Note that a patent does not give you a right to use an invention, since you have that by default! No, a patent grants you the right to prevent other people from using that specific invention.
Copyrights cover expressive works, like art, literature, sculpture, and such, and also computer programs since those are technically written works. You used to have to apply for copyrights, just like patents, but ever since the Berne Covention was widely adopted, copyrights now apply automatically; if you make an artwork, you have the copyright to it. Copyrights usually last for the life of the artist, plus fifty years (or plus seventy years in some countries, like the USA). Copyrights in some types of work last for less time, but it’s a pretty long time. Like patents, copyrights consist of the right to prevent other people from using the covered information. Copyrights cover both the right to copy the work, in whole or in part, and the right to make “derivative works”. For instance, making a movie based off of a book would be making a derivative work, and under the modern rules of copyright, you can’t do so without the copyright holder’s permission.
Trademarks are marks, designs, or other identifying features that identify a business or service. They help to distinguish a business from other businesses. So you can trademark a name, or a logo, or anything that identifies your service, so long as it’s only for identifying your service (you can’t trademark a useful process, for instance). Trademarks must be registered and periodically renewed, but they can last forever as long as the owner keeps filing the paperwork. Like patents and copyrights, trademarks are the right to prevent other people from using something, in this case an identifying trait.
Trade secrets, unlike the previous three, are not publicly revealed. They are simply valuable secrets, like a secret recipe or formula, that the owner wishes to use but not disclose. You don’t have to apply for them. Unlike the previous three, trade secrets grant you no special right to prevent others from using information. They are simply the right to not disclose useful information you possess. If someone can figure out your information through honest means, such as reverse engineering, then the secret’s out and there’s nothing you can do, but if you suspect that they used dishonest means, such as spying or bribing a confidant, then you have grounds to sue for damages.

There’s a lot more to say about these things, and a few other types of “intellectual property” that I could go into, but I think this is a good introduction. Now on to the next question: Why are you against it?

First off, I am not against trade secrets. I respect people’s right to keep some things secret. I only favor forced disclosure if the secret is something people need to know. I don’t think anyone needs to know the secret formula of Coca-Cola, so I see no reason to make an exception to the normal right to keep secrets. Also, I am not entirely against trademarks. They can be used for evil, but I think they have a good reason for existing – identifying a company or service and distinguishing it from other companies or services. We need to be honest in dealings with our fellow humans, and I think trademarks can be part of that honesty. I favor fixing them over discarding them.

But then we get to patents and copyrights. These are the nasty ones, and these are what I refer to when I say “IP”. These are the ones that must go. There is nothing worth saving in them. I am against them because they consist of the right to prevent people from using useful information that they already know. They stand wholly apart from the human right of secrecy and the human need for honesty. They are all about control of other people, and they exist only when states make such evil control possible. If you want more in-depth criticism of IP, I heartily recommend this short piece by Kevin Carson, or this booklet by Stephan Kinsella. I might also recommend my own writings on the subject, but you might be better off starting with Kevin and Stephan.

And now the important question: Why should anyone care? After all, there’s plenty to worry about in the world today. There are all kinds of problems to solve, and worthy causes to support, and amusing entertainment to watch, and you still have to find time to eat and sleep and maybe have sex. Why should you devote your time and energy to dealing with this “intellectual property” stuff? Well, let me offer a few reasons.

Because IP turns you into a criminal without you knowing it. John Tehranian wrote a paper called Infringement Nation that documents all the ways in which normal people can violate copyright law, peacefully and unknowingly. Under modern IP laws, we’re all crooks, giving the state justification to stalk us, fine us, and jail us. If you don’t like being a criminal in the eyes of the law, you should oppose IP.

Because IP justifies surveillance and spying. Rick Falkvinge, founder of the first Pirate Party, has a good piece here describing the connection between the copyright monopoly and mass surveillance. You can’t control publicly available information without monitoring all information exchanged, so pro-copyright groups have continually called for more monitoring and more control, resulting in less free speech and less privacy. If you like free speech and privacy, you should oppose IP.

Because IP reduces innovation and increases cartelization. You might think that patents spur innovation and reward creativity. They don’t. You might think that copyrights spur greater artistry and creation. They don’t. Instead, patents and copyrights enable the already powerful to exert more control, preventing innovation, reducing competition and harming the consumer. If you like innovation and competition, you should oppose IP.

Because IP will only get worse if we don’t fight against it. Copyright terms keep getting longer. Patentable subject matter keeps getting broader. ‘Anti-piracy’ laws keep getting harsher. New restrictions keep being developed, like database rights. All this keeps happening in spite of the evidence that it’s bad. If you’re not affected by IP yet, you will be soon. If you want to protect the liberties you haven’t yet lost, you should oppose IP.

And there you have it. That’s what IP is, that’s why I oppose it, and that’s why you should oppose it to. Will you join us?

Edit: My accomplice read this post and suggested a few edits, such as clarifying my usage of “intellectual property” vs. “IP” (I tend to switch between the two and assume that everyone can see what I mean) and giving folks a place to go if they want to help (I added a link to the International Pirate Party, and I also recommend checking out EFF and EPIC).

Randy Queen can get bent

I think I have a problem, dear readers. My problem is that Techdirt, one of my favorite websites, keeps bringing me bad news… and I suspect that Techdirt is one of my favorite websites precisely because it keeps bringing me bad news. Well, in case you suffer from the same malady, here’s the bad news.

First, a bit of background. There’s this website called Escher Girls, dedicated to pointing out the ridiculous ways women get portrayed in comics. The name is a reference to M.C. Escher, famous sketcher of twisty structures and impossible building. The implication is that the way these women are drawn is obviously impossible, and that their bodies would have to twist and warp like an Escher building to hold those poses. And when you look at the actual images being criticized…

…I think it’s a fair criticism, and a well-chosen title.

But some people don’t like having their work criticized, which brings me to the bad news. A certain Randy Queen, creator of Darkchylde, didn’t like the treatment he was getting from Escher Girls, and he decided he was going to do something about it. Specifically, he was going to force the site to take down his pictures and stop making fun of them. And thanks to the DMCA, he had the power to do so! And that’s how this happened:

So yesterday I found out that Randy Queen (artist of DarkChylde) filed a bunch of DMCA takedown notices to Tumblr to remove posts of his covers on this blog (the entire posts, not just the images). I’ve also gotten messages from other users that he’s had their stuff removed too (redraws, etc that have been featured here). Non-critical Tumblr posts of his art/covers and those praising his work appear to be unaffected.

DMCA takedowns, oh how I hate them. The world would be better off without the DMCA, and I for one pledge to never use it. But Randy Queen sees nothing wrong with using it, even against people who aren’t “pirating” his work in any way, just poking fun at it. And if that were all that Randy did, I’d still be mad at him. But he didn’t stop there, oh no. He decided to get personal:

Dear Eschergirls and Kim,

I would encourage you to put a stop to all of this. I have no problem getting legal involved for defamation, and for your various allegations on your takedown notice thread, and am happy to send a formal cease and desist letter from my lawyer.

Instead of simply removing the content you do not have the right to electronically distribute, you wish to push further, and publicly challenges my right to protect the perception of my IP as it exists today.

At this point, I will ask you to please move along, as no good will come of this.

Additionally, instead of taking shots at art someone did 18 years ago while they were still learning – which are no longer representative of their current art style or direction for their character – I encourage you to spend your time and energy on creating your own characters and comics which you can make your own personal sacrifices to bring to the world.

Sincerely,
~R

Randy wasn’t satisfied with taking down the posts making fun of him. He decided to take down the post talking about the posts making fun of him. After all, we peons have no right to sully the “perception of [his] IP”, now, do we? We must honor his “personal sacrifices” and refrain from “taking shots”, musn’t we? Move along now, before Randy gets mad and this gets ugly.

Well, I’m not moving anywhere. I don’t like it when people pick on blogs I like, I really don’t like it when people use the DMCA, I really really don’t like it when people threaten to sue someone for criticizing them, and I just hate it when someone does all of these things at the same time. I’m not going to keep quiet about this.

Randy Queen, hear this: the way you draw women makes me wonder if you hate them, and the way you handle criticism makes me want to hate you. The folks at Escher Girls were well within their rights (their legally recognized rights, no less!) to make fun of your work, and your artwork deserves to be made fun of, and if you think you have any special right to “protect the perception of [your] work”, you’re not just wrong, you’re a fool! You’ve abused our legal system, taken away other people’s rights, and made the world a slightly worse place. You owe Ami and everyone else an apology. Grow up, and let people mock your comics in peace.

But I don’t actually expect Randy to wise up any time soon. While I was writing this post, I got more bad news, this time from this post at Popehat. Randy’s now throwing accusations of “harassment” and “character assassination”, and he continues to urge us all to draw our own pictures instead of making fun of his, and also to think of people and animals suffering and dying in the world, and real human rights issues in certain countries (no, really, that’s what he said, go read the letter). Well, guess what, Queen: free speech is a human right, and censorship is a real human rights issue, and you’re censoring. Quit it.

For the sake of preservation, here’s one of the images that Randy ordered Ami to take down:
tumblr_m5smmfNlZF1r34y4ho1_500
And here’s what Ami said in the now deleted post:

One leg is twice as long as the other.

On the other hand, this looks like the best prom ever.

And there’s what Randy is trying to censor. Not this time, Mr. Queen. Not this time.