Big Head Press

L. Neil Smith's
Number 580, July 25, 2010

"When you've lost the joy, you've lost the cause."

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A response to "Little Criminals" with a challenge...
by Seth Cohn

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Special to The Libertarian Enterprise

Mr Smith, you got it right in Hope, and so SO SO wrong this time. The below challenges you to rethink and rewrite your position.

Ken, please publish this in response. I posted it just now at [this place] Please indent/pullquote the quoted sections below (they are in grey on the post above), and feel free to copyedit, as I notice the occasional stray or missing quote or parentheses in my haste to reply. As a result, it jumps a bit from 3rd person discussion of LNS to first person addressing... but it's out there, and it's clear enough.

Tom, if you'd be so kind as link to this in your daily Rational Review... this is a serious challenge, and I want to it out there so folks will see it and discuss it.

Ian, who I believe is in jail at the moment for unauthorized consumption of beverages in public, please feel free to discuss on FTL.

Lessig, Kinsella, Spider, all cc:ed because your ears are burning, and I'm citing all of you.


Response begins:

Lord knows, Ian and I don't usually agree, despite being on the same side of the fence on many issues... So it's nice when I can clearly side with him on something. L. Neil. Smith, despite all of his years, or perhaps because of all of his years, is plain wrong.

Ok, now that's linked to, let's rip it apart and see what straw horses he owns...

Lately, we have witnessed the rise of a movement—a thuggish crusade wrapped in the tattered robes of academic "respectability" against "Intellectual Property Rights"—dedicated to stripping creative individuals of whatever they create, to expropriate it for some imagined "greater good", and to attack the creators viciously and defame them if they should be so gauche as to object to being stolen from.

Except, despite his assertions, the long history of music, of literature, of science, all benefited from what LNS calls 'stealing', which everyone calls 'building on the past' Lawrence Lessig documents this extensively, and makes the case far better than Ian or I could: And he gives the entire damn book away for free... and lets people remix it, because he knows that's the best way to spread ideas and let the best ones grow, as well.

Their principal "argument" seems to be, now that almost everything is digitized and can be duplicated, manipulated, and transported by means of electronics, that this somehow removes the moral obligation of civilized beings to respect the rights of others and honor their propriety.

Wrong, and LNS clearly doesn't understand the core issues here. He confuses the minor issues of now (the ease of copying), with the long term fundamental problem: "Is an idea a property? Can one man claim to control the spread of an idea once he has shared it, and is it even possible to do that without force?"

I am currently thinking these thoughts, and many more besides, because, when they thought I wasn't looking, a small handful of literary muggers and rapists have taken something that I am fairly famous for having written—my "Covenant of Unanimous Consent"—inflicted alterations on it which they falsely claim makes it a different document, and then fraudulently passed it off as their own work.

Others here on this forum raised an interesting issue: contract law itself is based on the ability to clone contracts, create boilerplate, modify the contract as needed (sometimes with a simple linethru and initials of all parties), etc. LNS ignores that, and want to insist it's a creative work. Ok, without conceding the point (I do believe it's clearly a contract, and thus under the realm of contractual text), let's pretend it is...

"Covenant of Unanimous Consent" (hence CUC) is a expression of an idea. Some felt that the idea expressed did NOT meet their full consent, and felt the need to alter the expression of that idea to better suit them.

The question is them simply: did they have that right? Are they allowed to 'build on the past', and change the expression to suit them better?

In contractual law, yes, clearly. In copyright law, as practiced in 2010, with the absurdities the state now enforces, perhaps not. Having even a few words or notes strung together, it's possible claim a copyright violation. Sampling even a tiny bit of a song is considered infringement, subject to licensing and payment for the rights of use. LNS clearly feels that fine with him. But it's clearly not a valid libertarian position, because the only possible enforcement of such a thing requires a massive system of technology, state power, and/or mandatory contracts. The society required to both create LNS's CUC and also to enforce his desire of copyright is untenable. In fact, I issue a public challenge to him and anyone else who wishes to contend that it's compatible with freedom otherwise: prove it by modeling that society in a work of fiction with all details fleshed out, all criticisms raised answered.

Just as LNS in HOPE pointed out to a RonPaulian figure that abortion prohibition requires a massive statist structure, as seen here. I challenge him that we (and I think the we is quite broad and includes some major names) can and have made the same claims about copyright. If he'd like, I'll be glad to compile a pastiche of the above excerpt substituting 'copyright' for 'abortion', if he would like it so spelt out.

I've seem plagiarism before.

LNS confuses plagiarism with idea modification. The Shire Society did use his CUC as a base, but they openly felt it did not express their desired intent in a variety of ways. So the question becomes 'Do they have the right to modify the document in part, or use lines from it, or essentially use 1%-99% of it. Plagiarism is using 100% of it, and signing your own name to it, and really is a case of misattribution. But that isn't the case here. that, in the end, I was considered the villain of the piece, and called names, simply for having defended my own work from theft.

Ah, but was it theft, LNS? You assume the verdict, and skip the trial. You are so convinced a crime has occurred, you wish to jump to the sentencing.

I'm going to skip the entire issue of 'statist asshole', because of LNS's claim that involving his lawyer didn't constitute involving the state. A very questionable claim, given that even private adjudication requires both parties to agree to there being a problem, and that is far from agreed to, so if he hoped to have some leverage to even get there, he'd have to invoke some form of state based threat.

I have a small bet with myself that if I had informed these opponents of common, civilized behavior that I consider what they have done amounts to an act of initiated force against me—with all of the consequences that entails—intervention on their behalf by the State, most likely in the form of badged and uniformed policemen who could prevent me from dealing with them directly, myself, would suddenly, miraculously appear a whole lot more attractive and morally acceptable.

Actually, knowing the individuals involved (I am neither involved in the Shire Society nor am I signing of it or the CUC), I rather doubt that. I think they'd be laughing their asses off at your claim of initiated force, and requiring you to prove it. And watching you fail even worse.

At some point, I realized that the topic of intellectual property rights (about which I have never before been particularly interested)

Ding Ding Ding. Herein lies the crux of the matter. LNS, having not found it interesting, has never been forced to focus on it, and I expect if he takes the challenge above, will discover, that like Abortion Prohibition, Copyright is not compatible with the Freedom he desires.

The very next thing I knew, I was being defamed, by the leader of these scavengers and parasites, to all sixteen of the listeners to his Internet radio show, and all over the Internet. But, of course, had I decided sue the guy for libel, slander, and defamation,

Both parties, having made insulting and inaccurate remarks about the other, the case is dismissed with prejudice. Moving on....

The first tenet is that there is a distinction between physical property and what some—especially its creators—claim to be "intellectual property."

Indeed. Do you wish to dispute this, LNS? Do you wish to claim that physical property, which has weight, mass, and the singular property of being in one place at a time in the space time continuum, shares that 'property' (using the other sense of the word), with an idea (a story, a concept, a math equation, a melody, the list goes on)? Please to inform the court the weight of a joke, the mass of 'E=MC^2", or the current location of 'Somewhere over the Rainbow'?

They informed me, loftily, that just because I think of an idea, that doesn't mean it belongs to me. That if I don't want something I created stolen, then I shouldn't communicate it to the world. Fine—and if everybody followed this "advice", these creeps wouldn't have any opposition to their thievery, and no stories or books would ever be published, no songs would ever be written, no music would ever be composed.

Except prior to the invention of 'copyright', all of these things existed and were created, so QED, your claim that 'copyright' is what empowers authors and composers (and all idea makers) is incorrect, because they existed first, they did create, and the claim that the world would stop creating without copyright is clearly only a supposition on your part. In fact, as Lessig has documented, the exact argument can be made in reverse: copyright is STOPPING the creation of new stories/books/music. I call Spider Robinson to the stand:

(Please note Mr Robinson's testimony was written 25 years ago, but remains entirely valid today.)
(Please also note Mr Robinson has put his testimony in the form of a Hugo winning short story, which he's licensed (more recently) in an Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 Unported License meaning that he feels fine with folks passing it around, because he understands that ideas can be shared, but like you, LNS, he currently depends on the copyright for his bread and butter, and hates plagiarism as well.)

As an individualist, I'm not generally interested in Utilitarian arguments. However, it is worth noting that the past 300 years have seen the greatest progress in human history, and it's exactly the same era in which copyright has been respected and stringently enforced.

And we can name other 300 year old items... John Locke's writings, Calculus. I would be just as valid claiming that the free spread of Locke's idea, or the development of Calculus lead to the greatest progress in human history. Again, Lessig's work above makes the case that copyright's got benefits and disadvantages... and that a free culture can have those as well.

Besides which, claiming that the stringent enforcement of a law has lead to great progress, and so is justified? Hmm... I smell a bit of fecal matter there, LNS, coming off you?

In this connection it's worth asking, since there is no actual difference between intellectual property and physical property,

Which you haven't answered, just claimed. The other side has made it's case quite clearly. Stephan Kinsella writes a nice summary here: "The Case Against IP: A Concise Guide" Kinsella is a patent law attorney who as he says early in the piece, "I finally realized that IP is incompatible with genuine property rights."

My first observation is that, in a moral context, there is no discernable difference between physical property and intellectual property...

Traditionally in civilized property theory, "mingling your labor with the land", the concepts of "sweat equity", and of "selling little bits of your life" in order to acquire whatever you need or want, abolishes any meaningful difference between physical and intellectual property.

Nobody here is arguing what 'tradition' says. We don't care what 'tradition' says. Tradition is anti-liberty, LNS, in this case. Kinsella demolishes the claims that IP is pro-liberty. If the choice, as you made in Hope, is between Abortion prohibition and Liberty, then the choice is clear: We pick the Liberty.

Almost to a man (if that's not giving these poor creatures too much credit) I have noticed that none of these would-be looters seem to be female

Except I can produce dozens of women who will argue the cause... so let's pretend you didn't go there.

They seem a little unendowed in the imagination department, too. I have spent my entire adult life writing novels about how the mechanics of civilization can be reengineered to exclude the very concept of government.

Thus my challenge: because I am perfectly willing to be proven wrong, if you wish to flesh out a novel or even a short story, to show we're incorrect here. I have provided scholarly works filled with facts about the dangers of copyright, a Hugo winning short story on the stifling effects of copyright, , and a prolific IP law aware pro-liberty lawyer who now says all IP is bad for liberty (his main treatise can be found here (for free). You have only to answer them all, LNS, and be proven correct that your imagination is the better one. Show us the society that is both proliberty and procopyright.

I hereby sentence them to read The Probability Broach, Pallas, and especially Forge of the Elders. Just because the state has protected intellectual property rights in the past, that doesn't mean intellectual property rights don't have to be protected. Just because it's difficult to imagine how, that doesn't relieve us of the moral burden.

Show me a society where Abortion Prohibition can coexist with Liberty.... wait a sec....

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