Nice things

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.

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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.

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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.

Lightening the mood

Well, folks, it seems that J. Neil Schulman has noticed my antics and decided that enough is enough. After I described to him how I pirated his book, and then compared him to the villains from Tron, he responded… by adding me as a friend on Facebook.

How about that.

I happily accepted. And not as a joke, either. I actually like this Schulman guy. To see why, I recommend that you read this post of his: Mere Anarchy. That post is the sort of thing I wish I had written, but I don’t need to write it now because Neil already did. So yeah, I loudly disagree with Neil on some things, but I agree with him on other things, and I don’t wish to overlook that.

So thank you, Neil, for taking the high ground and extending an olive branch. I’ll probably continue to disagree with you on some things, but when I do, I hope I don’t forget this time, when I spoke to you like an enemy and you still asked to be my friend.

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.

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.

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