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.

The Comedian and the Cop

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.

Lies Are Bad

In my last post, I noted that Alexander Baker had a rather odd view (in my opinion) of the value of honesty. Quoting from this post:

Is the plagiarist wrong simply because plagiarism is dishonest? No. Lying is only wrong when done to deprive another person of property. Deceiving a robber about the location of your valuables is virtuous.

This acceptance of dishonesty caught me off guard. But it turns out that Baker is hardly the only one arguing such a thing. Here’s Murray Rothbard arguing something very similar in The Ethics of Liberty:

We have therefore affirmed the legitimacy (the right) of Smith’s either disseminating knowledge about Jones, keeping silent about the knowledge, or engaging in a contract with Jones to sell his silence. We have so far been assuming that Smith’s knowledge is correct. Suppose, however, that the knowledge is false and Smith knows that it is false (the “worst” case). Does Smith have the right to disseminate false information about Jones? In short, should “libel” and “slander” be illegal in the free society?

And yet, once again, how can they be? Smith has a property right to the ideas or opinions in his own head; he also has a property right to print anything he wants and disseminate it. He has a property right to say that Jones is a “thief” even if he knows it to be false, and to print and sell that statement.
…
We can, of course, readily concede the gross immorality of spreading false libels about another person. But we must, nevertheless, maintain the legal right of anyone to do so. Pragmatically, again, this situation may well redound to the benefit of the people being libelled.

The thought that keeps running through my head as I read these statements is this: What is WRONG with you people!?

Of course, I’m reacting out of anger, not rational disapproval. But I think I at least have a good reason to be mad. I don’t like being lied to, and here these guys are, saying that lying is not wrong! What gives?

Giving my opponents the benefit of the doubt here, it seems to me that they’re arguing that lies do not necessarily cause harm. Thus, while lies may be disgusting and immoral, we shouldn’t automatically treat them like crimes. Alexander even goes so far as to offer a situation when lying could be considered just and moral.

But I think these guys are missing something. I think that they are missing the fundamental nature of lies. To me, the important point is this: lying is for enemies.

Consider our friends in the animal kingdom. They lie to each other, and they do it quite often. A crab spider, disguised as a flower, is lying to any nearby insects about its true nature. And why not? It’s not trying to cooperate with the bugs, it’s trying to eat them, so open and honest communication would not serve the spider’s agenda in any way.

“Sorry, pal, but you should have read the fine print more carefully.”

It’s not just predators who lie, of course. Prey lie, too. And why not? If a creature is trying to eat you, do you have any obligation to give it an honest account of your true nature?

But Rothbard and Baker are not talking about predator-prey relationships between animals. They’re talking about human relationships. And not just any human relationships, but peaceful human relationships, the sort that we’d like to permit under any circumstances. In situations like these, there should be no enemies. I may not be friends with everyone, but I seek to be an enemy to no one, and I consider that to be a reasonable standard for all people. If someone lies to me, or lies about me, then my default assumption is that they are an enemy to me, and therefore they are an active danger, requiring appropriate response.

The nature of lying becomes more apparent when you look at the sort of lies that people defend. Crosbie Fitch has a particular lie that he likes to use as an example: “There are no Jews in this house”. The implication, of course, is that the liar is speaking to a Gestapo officer or some other anti-Semite, and is concealing the existence of Jews in order to protect their lives. Now tell me this: would you say that the liar has a friendly relationship with the Nazis they’re lying to? Of course not! They’re enemies with the Nazis, and they’re acting like enemies by actively obstructing the Nazis’ efforts to achieve their goals. We say that the lie is just because the liar is justified in treating the Nazis as enemies (hardly a controversial position, to be sure). But in a situation where the questioner is not worthy of being called an enemy, would we still justify the liar?

Now, having said all that, I must concede that there are many, many, many circumstances when punishing a liar is simply not possible, let alone desirable. If I actually had to enumerate when you could and should punish a liar, my position might not be so far from Rothbard’s. But I still think that Rothbard and Baker are far too cavalier about lies and liars.

The fact is that, as humans, we rely on each other. We need the knowledge that other people have, so we count on each other to tell the truth. Thus, we are generally justified in ostracizing liars simply because they lied, even if the lies had no effect. And if the lies did in fact cause measurable damage, then the liar has to pay. Rothbard is right in noting the problems that can come from libel laws (and he’s quite right to reject any right to “reputation”) but he’s wrong to reject libel laws entirely. Lying hurts, and lies are bad, and any society made of humans is going to recognize that.

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.

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.

Check Your (Intellectual) Privilege: a book recommendation

I recently finished reading Intellectual Privilege: Copyright, Common Law, and the Common Good by Tom W. Bell, and I’m glad I did. In the introduction, Tom Bell promises to offer a “libertarian view” of copyright, and this libertarian thinks that Tom delivers the goods.

I was actually surprised by how libertarian the book is. You see, in the publicity for the book (like this video), Tom informs us that the book is covered under what calls a “Founder’s Copyright”, in which he and the Mercatus Center reserve only some rights (the rights specified in the original 1790 Copyright Act), and only for a limited time (28 years, the maximum time offered under the original Copyright Act). This is highly preferable to modern copyright law, but not nearly as good as no copyright at all. With that as introduction, I was expecting a wishy-washy “middle of the road” take on copyright. I was unprepared to read Tom saying things like this:

Copyright thus creates both a legal power to censor and an economic incentive to speak, an uneasy but unavoidable conflict that Neil Netanel, a professor at University of California, Los Angeles, School of Law, has aptly described as “copyright’s paradox.”
Copyright’s paradox reaches beyond mere speech, however. Although often described as a form of property, copyright relies for its very existence on violating property rights – the traditional common-law rights that each of us presumably enjoys in such tangible things as our printing presses, guitars, and throats. – from Chapter 1

Barely two pages into the first chapter, and Tom has already described copyright as a censorship instrument and as a violation of property rights. Tom W. Bell is not kidding around, folks. And it only gets better from there.

In case you don’t believe his assertions, Tom carefully spells out why copyright cannot be a natural right (here’s an excerpt where he explains why copyright fails to fit John Locke’s definition of natural rights, and here’s another excerpt where he explains why copyright fails to fit Randy E. Barnett’s definition of natural rights). He gives us a thorough history lesson that shows that, while America’s Founders often tried to “sell” copyright to the masses as a natural right, they never actually treated it as such. He closes Chapter 3 with this doozy of a sentence:

In sum, we should consider copyright an unnatural statutory privilege that violates our natural rights and can claim only as much justification as can the state itself.

Now that’s what I like to read in a book discussing copyright. And if I were writing the book, that’s about where I’d end it, staying only long enough to write a conclusion urging my readers to “smash the state”.

That’s not where Tom ends things, perhaps because Tom is not an anarchist. But whatever Tom isn’t, I can say what he is: he is very thorough, rather humble, and quite dedicated to finding a solution to our problems with copyright. And he spends much of the book talking about solutions: both ways to make copyright less odious, and ways to make it unnecessary or irrelevant. Since the governments of the world don’t seem likely to crumble any time soon, it’s likely that copyright will be with us for some time to come, so Tom Bell’s pragmatic solutions might be just what we need to deal with it.

To make copyright less bothersome, Tom describes a legal theory called “copyright misuse”. The idea here is that, since copyright is necessarily a violation of common-law rights, anyone who invokes copyright rights does so at the expense of their own common-law rights. In other words, you can either have common-law protection (which covers your person, property, and promises) or copyright protection (which grants you exclusive rights in distributing your expressions), but not both. He discusses several legal cases where this doctrine has developed, and describes how a more general application of this principle would make copyright less noisome. Take DRM and EULAs, for instance. Both of these are limitations on what a user can do with copyrighted information, justified on grounds of property right or contract. Under the theory of copyright misuse, both of these would be illegal; a copyright holder could limit users’ rights either by copyright or by contract, but not both at the same time, so an EULA that ordered anything besides “Don’t violate copyright law” would be null and void unless it didn’t apply copyright at all, and DRM could not be used to prevent a user from doing anything not forbidden under copyright law. As Tom notes, when copyright and common-law rights combine to oppress, “we should respond by limiting the former and respecting the latter” (from Chapter 7). Tom then goes on to propose an addition to the Copyright Act, which he calls section 107(b), and which reads as follows:

It constitutes copyright misuse to contractually limit any use of a copyrighted work if that use would qualify as noninfringing under § 107(a). No party misusing a work has rights to it under § 106 or § 106A during that misuse. A court may, however, remedy breach of any contract the limitations of which constitute copyright misuse under this section.

This would formally recognize the doctrine of copyright misuse in the relevant legislation, and give abused users a firm defense against copyfraud. And I really must tip my hat to Tom Bell, for how thorough he was in drafting this proposed bit of legislation. You’ll have to read Chapter 8 to see just how much thought he put into this. And in Chapter 9: Deregulating Expressive Works, he proposes another expansion to the Copyright Act, section 301(g):

(g) Nothing in this title annuls or limits any common-law restriction on the use of a fixed work of authorship if that work has been dedicated to the public domain.

Tom believes in the strength of common-law protections (and so do I), so Tom wants to encourage artists and innovators to use common-law methods instead of copyright. Section 301(g) would explicitly allow them to do so even after abandoning copyright. Not such a bad way to encourage folks to contribute to the public domain, if you ask me.

But Tom doesn’t stop there. See, Tom takes seriously the idea that there might exist a “market failure” in the production of expressive, creative works. It’s this market failure that copyright supposedly exists to cure. But instead of legislation, Tom Bell proposes that we look for other ways to cure the market, including improved technology and novel common-law solutions. Chapter 11 is titled “Outgrowing Copyright”, and right there, I must give Tom credit for a hopeful vision. While so many copyright reformers talk about finding the right balance in copyright, Tom talks about finding ways to do without it. Rather than ask “How much do we need?”, Tom asks “How can we get to a point where we don’t need any?” I’d love to here more of this kind of talk from Larry Lessig and Cory Doctorow. Step up your game, guys.

In fact, if you’re the sort who thinks that we can and should find the right balance in copyright legislation, I recommend you read Tom Bell’s analysis of the difficulties involved in doing so, found in Chapter 6: Copyright Politics: Indelicately Imbalanced. I think I can sum up the whole chapter nicely in one sentence from it:

Copyright policy combines all the elements of a public choice tragedy: concentrated benefits, diffuse costs, and state power.

In other words, if you’re waiting for the lawmakers to properly adjust the settings on copyright, you’ve got a lot of waiting ahead of you. There’s a reason they’ve screwed it up thus far, and the reason is that they don’t see any reason to bother getting it right. Hoping for a fix of copyright is probably a pipe dream, even with Tom’s proposed additions, so we’d be better off looking for an escape from copyright, instead.

The book’s conclusion is titled “The Packet-Switched Society”, and it includes a brief discussion of what makes the Internet special and how this offers us a way to render copyright superfluous, changing it from a “necessary evil” to just plain evil. It’s a good conclusion to a good book, and I hope you all will read it. Buy a copy, borrow a copy, whatever you must do. There used to be a draft freely available online, but Tom has since taken that down… but thanks to the Internet Archive, you can still read it! So check it out and give it some thought. You’ll be glad you did.

And to any copyright maximalists who are reading this, let me just say: Check Your Privilege!

Against Divided Ownership

There are some libertarians who think that some sort of “intellectual property” is possible; they argue that the practice of privatizing information could survive the free market. Murray Rothbard, may he rest in peace, was one of those libertarians, and he makes an argument for a kind of copyright via contract in chapter 10.7 of Man, Economy, and State:

It is true that a patent and a copyright are both exclusive property rights and it is also true that they are both property rights in innovations. But there is a crucial difference in their legal enforcement. If an author or a composer believes his copy­right is being infringed, and he takes legal action, he must “prove that the defendant had ‘access’ to the work allegedly infringed. If the defendant produces something identical with the plaintiff’s work by mere chance, there is no infringement.” Copyrights, in other words, have their basis in prosecution of implicit theft. The plaintiff must prove that the defendant stole the former’s crea­tion by reproducing it and selling it himself in violation of his or someone else’s contract with the original seller. But if the de­fendant independently arrives at the same creation, the plaintiff has no copyright privilege that could prevent the defendant from using and selling his product.
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We have seen in chapter 2 that the acid test by which we judge whether or not a certain practice or law is or is not consonant with the free market is this: Is the outlawed practice implicit or explicit theft? If it is, then the free market would outlaw it; if not, then its outlawry is itself government interference in the free market. Let us consider copyright. A man writes a book or composes music. When he publishes the book or sheet of music, he imprints on the first page the word “copyright.” This indicates that any man who agrees to purchase this product also agrees as part of the exchange not to recopy or reproduce this work for sale. In other words, the author does not sell his property out­right to the buyer; he sells it on condition that the buyer not reproduce it for sale. Since the buyer does not buy the property outright, but only on this condition, any infringement of the con­tract by him or a subsequent buyer is implicit theft and would be treated accordingly on the free market. The copyright is there­fore a logical device of property right on the free market.

He elaborates on this theory in The Ethics of Liberty:

There is, however, an exception to the right to use and disseminate the knowledge within one’s head: namely, if it was procured from someone else as a conditional rather than absolute ownership. Thus, suppose that Brown allows Green into his home and shows him an invention of Brown’s hitherto kept secret, but only on the condition that Green keeps this information private. In that case, Brown has granted to Green not absolute ownership of the knowledge of his invention, but conditional ownership, with Brown retaining the ownership power to disseminate the knowledge of the invention. If Green discloses the invention anyway, he is violating the residual property right of Brown to disseminate knowledge of the invention, and is therefore to that extent a thief.

Violation of (common law) copyright is an equivalent violation of contract and theft of property. For suppose that Brown builds a better mousetrap and sells it widely, but stamps each mousetrap “copyright Mr. Brown.” What he is then doing is selling not the entire property right in each mousetrap, but the right to do anything with the mousetrap except to sell it or an identical copy to someone else. The right to sell the Brown mousetrap is retained in perpetuity by Brown. Hence, for a mousetrap buyer, Green, to go ahead and sell identical mousetraps is a violation of his contract and of the property right of Brown, and therefore prosecutable as theft. Hence, our theory of property rights includes the inviolability of contractual copyright.

A common objection runs as follows: all right, it would be criminal for Green to produce and sell the Brown mousetrap; but suppose that someone else, Black, who had not made a contract with Brown, happens to see Green’s mousetrap and then goes ahead and produces and sells the replica? Why should he be prosecuted? The answer is that, as in the case of our critique of negotiable instruments, no one can acquire a greater property title in something than has already been given away or sold. Green did not own the total property right in his mousetrap, in accordance with his contract with Brown—but only all rights except to sell it or a replica. But, therefore Black’s title in the mousetrap, the ownership of the ideas in Black’s head, can be no greater than Green’s, and therefore he too would be a violator of Brown’s property even though he himself had not made the actual contract.

Alright, did you follow with that? Because I’m actually having trouble with it.

Rothbard’s hypothetical “copyright” is actually a pretty good description of trade secret and non-disclosure agreements. But modeling such contracts as exchanges of property doesn’t make sense to me. I think it’s more natural to think of them as exchanges of services. An exchange of services can be as simple as “you scratch my back, I scratch yours”. In the case of an NDA, the exchange is: “I tell you this information, you don’t tell anyone else this information”. This is all well and good, but it has some complications. For instance, how long must the receiver keep the information secret? In the case of the backscratchers, there’s very little need to discuss long-term obligations, because you both get your backs scratched right then and there, but when you agree to not do something, how long do you have to not do it?

Rothbard assumes that this sort of contract will be binding “in perpetuity”, but that’s not a safe assumption! Why would a free market decide that you can be bound to eternal silence in exchange for receiving a particular piece of information? I can see why people would want to enforce this contract on others, but I can also see that people wouldn’t want themselves to be bound by such contracts. I think that a true free market would at least try to find a compromise between these extremes. I also think that a true free market wouldn’t automatically assume the inviolability of any contract, let alone contractual copyright. For a good explanation why, I recommend reading The Myth of the Rule of Law by John Hasnas. In that essay, Hasnas explains why there should be a free market in the law itself, and showing that a “one-size-fits-all” approach like we have now is the last thing that a free market in law would produce. As for what a market in law would produce, here’s an excerpt:

Although I have no crystal ball, I suspect that a free market in law would resemble the ancient system a great deal more than the modern one. Recent experiments with negotiated dispute-settlement have demonstrated that mediation 1) produces a higher level of participant satisfaction with regard to both process and result, 2) resolves cases more quickly and at significantly lower cost, and 3) results in a higher rate of voluntary compliance with the final decree than was the case with traditional litigation. This is perhaps unsurprising, given that mediation’s lack of a winner-take-all format encourages the parties to seek common ground rather than attempt to vanquish the opponent and that, since both parties must agree to any solution, there is a reduced likelihood that either will wish to reopen the dispute. Given human beings’ manifest desire to retain control over their lives, I suspect that, if given a choice, few would willingly place their fate in the hands of third-party decisionmakers. Thus, I believe that a free market in law would produce a system that is essentially compositional in nature.

In other words, any contract between seller and buyer would be subject to negotiation and mediation. I doubt that a contract of perpetual silence would survive under such circumstances. (Also, I must point out that Rothbard argued that blackmail should be legal. If that’s the case, then when you tell someone a secret but insist that they can’t share it, don’t they have a right to “blackmail” you into compensating them for keeping the secret? But I digress)

Perhaps Rothbard sensed this problem with contractual copyright, because he tries to explain that what’s really at stake are property rights, not just contractual obligations. He insists that you can sell something in part, as in the example with Brown’s mousetrap. Brown sold Green the right to use the mousetrap, but not the right to copy it (and certainly not the right to sell copies!). J. Neil Schulman elaborates on this in his Logorights essay, saying that rights come in “bundles”, and that you can separate and sell them.

Well, I don’t agree with Schulman, and I don’t agree with Rothbard, either. The fact of the matter is that “rights” are not individual things that can be separated from each other. In fact, rights are kind of nebulous, but if we’re going to understand them and implement them, we have to understand that they are rooted in possession. Rothbard and Schulman both acknowledge this, yet they both still think that rights can be split up, even when possession is not split. This just doesn’t work. For a good explanation why, let me quote from Anthony de Jasay’s piece, Your Dog Owns Your House:

In the broad scheme of things, all this is part of the universal system of exchanges. Some of these exchanges may be involuntary. Such is the case where redistribution, a coercive act, is taking place. We then lose the trace, the precise measure and the assured reciprocity of contributions to wealth and income, but this circumstance can hardly serve to justify the very redistribution that has caused it. However, where exchanges are voluntary, tracing and measuring become, in a strong sense, otiose and irrelevant. For in a voluntary exchange, once each side has delivered and received the agreed contribution, the parties are quits. Seeking to credit and debit them for putative outstanding claims is double counting.
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Most modern theories of how society ought to work rest on some idea of agreement. Almost invariably, however, the agreement is fictitious, hypothetical, one that would be concluded if all men had equal “bargaining power,” or saw things through the same “veil” of ignorance or uncertainty about their future. Or felt the same need for a central authority. The social contract, in its many versions, is perhaps the best known of these alleged agreements. All are designed to suit the normative views of their inventors and to justify the kind of social arrangements they should like to see adopted. Yet the only agreement that is not hypothetical, alleged, invented is the system of voluntary exchanges where all parties give visible, objective proof by their actions that they have found the unique common ground that everybody accepts, albeit grumblingly, but without anyone being forced to give up something he had within his reach and would have preferred. The set of voluntary exchanges, in one word, is the only one that does not impose an immorality in pursuit of a moral objective.

de Jasay is arguing against redistribution, showing how a logical application of it leads to Fido having a property right on your territory, but the same argument works just as well against Rothbard’s proposal of divided ownership. Voluntary exchanges should be brief and well-defined, and property should remain in the control of whoever actually possesses it.

This is the kind of property rights that make sense to us as humans, and the kind of rights that are possible to enforce while still preserving liberty. If I may quote from Neil Gaiman’s argument with his agent:

Her point of view: The Kindle reading you the book-you-just-bought infringes the copyright (or at least, the rights) to the audiobook. We’ve sold audiobook rights and print book rights as separate things. We must stop this.

My point of view: When you buy a book, you’re also buying the right to read it aloud, have it read to you by anyone, read it to your children on long car trips, record yourself reading it and send that to your girlfriend etc. This is the same kind of thing, only without the ability to do the voices properly, and no-one’s going to confuse it with an audiobook. And that any authors’ societies or publishers who are thinking of spending money on fighting a fundamentally pointless legal case would be much better off taking that money and advertising and promoting what audio books are and what’s good about them with it.

In other words, when you own something, you get to own it. You control all of it. If somebody wants to sell me a book but not let me copy it, they can negotiate a mutually advantageous contract with me. If they don’t feel like doing that, then they can either sell me the book outright or just forget about the sale.

We’ve wandered far from this principle, to the point that media companies routinely treat their own customers as enemies. This is inexcusable, especially to libertarians like me. It’s time to drop this nonsense, and stop pretending that we can divide up ownership.

The Inevitable State

It has recently occured to me that as a group, we libertarians are a bunch of peaceniks. We may talk tough about self-defense and bearing arms and forming militias and so on, but really, we don’t want to engage in fights at all, let alone start them. We’ve got better things to do, like discuss philosophy or tinker with 3-D printers or smoke cannabis. As the pseudonymous dL puts it in this post, “Live and Let Live” is a big part of what it means to value liberty. We like life, and we hate war. Oh, how we hate war. As Randolph Bourne put it in The State, “War is the health of the state”, and oh, how we hate the state. One of our more popular sites is Antiwar.com, and they mean business. We libertarians just hate war.

Now, you may be thinking to yourself, “So what? Everyone hates war. You think you’re special for hating it or something? Do you think that non-libertarians like war?” And not so long ago, I’d have said something about how I think you actually hate war just as much as we do, but you just haven’t figured out how to get rid of it. But that was then, and this is now, and in between then and now, I changed my mind. Now, I don’t think you hate war as much as you think you do. I also don’t think I hate it as much as I think I do. And this poses a big problem for all of us.

Escape the Iron Prison

There is a pattern to our thoughts that we do not see, a set of rules that we follow without knowing. It governs what we can or cannot understand, which means that it affects everything we do. The pattern is useful to us in the measure that it approximates reality; a pattern of thought is like a map, and a map is good if it helps us navigate the territory. But if the pattern does not approximate reality, then it does not serve us. It might, however, serve other people; if someone can edit your map without you knowing, then they can hide things from you and lead you astray at their will and pleasure. As a consequence, some people are actively trying to confuse us for their own benefit. This is one of the reasons why it’s hard to understand so many things, and why it’s important to see things as they really are.

You’ve probably already noticed that my favorite topic on this blog is “intellectual property” and its subdivisions, such as patent, copyright, database rights, and so on. I choose to focus on this topic because I believe that it is very important, since the legal rules of IP govern the development and use of technology (which we all use, and we’re using more and more of it) and communication (which we all do, and we’re doing more and more of it). I also focus on IP because I believe that the ways of thinking that define and uphold IP are very, very wrong.