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Source link: http://archive.mises.org/14441/study-with-the-leader-of-the-resistance/

Study with the Leader of the Resistance

October 31, 2010 by

I am very happy that Stephan Kinsella is finally teaching a class on intellectual property, which is surely one of the most important issues of our time. We need desperately to spread education about this topic, which is a difficult one. It is not one of the “armchair” issues that you can solve without much thought or serious study.

Let me try to give a flavor of what we are dealing with here.

Last week, I had to haggle with an authors’ consortium in Britain concerning a 1946 text. The author had no children and he died before the copyright on the book expired. Someone swept in a renewed the thing, thereby taking it off the market. It hasn’t been in print for some 40 years. A paralegal helped me discover the owner, which turns out to be some scam operation that preys on people who want to reprint books. I asked to distribute the thing online. The consortium never seem to have heard of the internet. They wanted a fee for $1 per book with a contract that lasted 2 years and a limit on our sales. None of this works for us. So we said no. As a result, the book, which is not that mission critical, goes back to its eternal resting place, all because of “intellectual property” which is just so obviously a hoax and a violation of human rights.

This is only one of dozens of cases I’ve dealt with. And there are actually millions of books in this condition, effectively burned and destroyed by IP law. The most exciting innovation in human history is the internet and digital distribution, which offers the ultimate thing, the possibility of universal distribution of knowledge, the dream of every intellectual from the ancient world to the present. And yet this is being stopped by laws administered by fools, in complete violation of the rights of the creators themselves. This strikes me as completely indefensible and yet it is the reality of our times.

Texts published after 1963 and before 1995 when things started going online are as good as gone. By the time these books enter the public domain, their value will be dramatically reduced. Meanwhile, they are being forced into death by the state and its laws, even though we have the technology to liberate them all right now. This is a travesty. Imagine a marauding band of terrorists in the 16th century that smashed every printing press it could find on grounds that it threatened the livelihood of scribes. This is exactly what is going on right now.

The level of ignorance out there concerning copyright is amazing to watch. People hear things on the street and pass them on, while knowing nothing about the actual realities of the law, which is the craziest, mixed up mess of nonsense you will find in the statute books of all human history. There is no one rule that helps you find out what is and what is not available for digitizing. Congress changed its mind every decade or so, to the point that now texts can be tied up in the physical world for as long as 170 years. Authors are constantly tricked into going along with this cockamamie system in the hope of royalties that never arrive. The state has set up a moral hazard and authors keep falling for it.

Authors are often unaware of what they are doing and signing. Just a bit ago, I had an author tell me that all is well because he retained copyright to a book. In fact, this means nothing because when he published, he signed his rights away by making the publisher the administrator of his rights, a status which lasts as long as the book is in print. Guess what? Books never go out of print these days. His book is as good as dead as regards digital media. He had no idea. Even though he is a creator, his rights are being violated in the name of “intellectual property” and he remains totally flummoxed about how this happened.

Most people have no idea just how bad the situation truly is.

Nor have most people considered just how flimsy and ridiculous the foundation of “intellectual property” really is. If the law were actually applied consistently, so that we had to negotiate rights over every idea we use, the whole of society as we know it would come to a screeching halt. Learning and influencing would be against the law. Every generation would start over, having benefited not at all from the experiences of the previous one.

People are constantly fooled over this subject. After my review of Social Network, my in-box filled with questions about my claim that Mark Zuckerberg did not owe the Winklevoss twins anything. The claim is that Zuckerberg took their idea of a Harvard-wide social network, so why should he be forced to pay? Well, consider: what if Zuckerberg’s ideas never really went anywhere and Facebook ended up being a huge financial failure. What Zuckerberg have been able to foist his liabilities off on the Winklevoss twins? If ideas are property and Zuckerberg owed his success to them, it makes sense that they would also bear the liability for failure. But no one seriously suggests this, which tells me that the same people don’t take their claims literally.

I also have to laugh about people who wrote me to say that they saw the movie on my recommendation and liked it but do not agree with Kinsella on IP. Well, wait just a minute: they took my idea and saw the movie, so shouldn’t they be forced to pay me money? Haven’t they robbed me of my idea of seeing a movie? Think about this and see how preposterous this truly is. The reality is that 1) I put my idea out there, 2) ideas can be copied without stealing them, 3) the whole of life itself is made possible via the extraction and application of the ideas of others.

I love the movie Social Network because it shows how real life works in the world of entrepreneurship. Entrepreneurs are specialists in extracting information to inform their judgements about the world. They are great learners, great copier, great implementers of the ideas of others, improving them and testing them against the reality of economic life. Ideas alone pay nothing. Only the doing pays returns (or losses). As Rothbard says, a real entrepreneur is not just a thinker but a capitalist who takes risks.

But you say that Zuckerberg had a contract with the twins to do work for them? In fact, there was no contract, and anyone who says that Zuckerberg did anything wrong wouldn’t last a day in the real world. It is common in every aspect of life, particularly in the world of geeks and code monkeys, for people to agree in principle and then not come through. It happens with four out of five people I approach about working on Mises.org, for example. That’s not contract breaking; it is just the way life is. Zuckerberg had a better idea than to waste time on the twins’ project, and good for him. We are all better off.

Try an experiment sometime. Imagine that ideas really are property, and that every time you learn something or discover something or hear something that influences your later actions, you have to pay some money or else you are a thief. Try it tomorrow when you wake up and just see what happens. You will discover that you will either be bankrupt by noon or rendered senseless and motionless. We cannot get by this way.

The beauty, the glory, the magic, the mystery and magnificence of ideas as versus real property is precisely that they are infinitely copyable, malleable, transferable, and spread in unpredictable ways. They are the very energy and life of civilization itself, the means by which we build, grow, and navigate this world of scarcity in ever more successful ways.

There is no greater illustration of the arrogance and pretensions of the state that it imagines that it can bottle these up and buy and sell them, becoming a global mind reader of everything we see and hear, all in the name of property-rights enforcement. The bitter irony is that the state is doing the opposite of enforcing property rights; it is violating them through its attempt to restrict the unrestrictable.

IP consistently applied can destroy the whole world as we know it. As it is, IP is enforced only intermittently and thank goodness for that. What is troubling is that most people are clueless about where they stand on this issue. They figure that it doesn’t really matter for them, just as slavery didn’t matter to most people in the year 1800, so why should we care? We must care. Everything is at stake in this battle.

But let’s say that you don’t agree with Kinsella that IP is a myth that must be shattered. Will you benefit from this class? Absolutely. It will help you think, and think hard about this subject. He is a world expert, a patent attorney and a great thinker, surely one of the most important living intellectuals today. He has made himself available to you through the Mises Academy. I don’t believe that this class will settle all things but it will help you think and learn and gradually come to a coherent position on this issue.

If we all had our priorities straight, the Mises Institute would need to close the class at 1000 students. I don’t think we will have that many but we should. In 500 to 1000 years, students will be studying our generation and wonder who the dunderheads were who slammed on the breaks of social progress by crushing innovation, burning books, fining innovators, jailing teenage file sharers, prosecuting good learners, smashing art and music, and using government force to prop up losers, scam artists, and reactionary forces in society. They will laugh at us.

At least they will see that some people refused to go along. Kinsella is the leader of the resistance, and he is here for you, willing to be a teacher and helping everyone to understand and see the light.

{ 26 comments }

Lee Kelly October 31, 2010 at 5:13 pm

“In 500 to 1000 years, students will be studying our generation and wonder who the dunderheads were who slammed on the breaks of social progress by crushing innovation, burning books, fining innovators, jailing teenage file sharers, prosecuting good learners, smashing art and music, and using government force to prop up losers, scam artists, and reactionary forces in society. They will laugh at us.”

And bowties will be back in style. Good rant, btw.

Magnus October 31, 2010 at 5:30 pm

Now that’s what I call a good pitch!

Douglas Chalmers October 31, 2010 at 6:01 pm

This is another poor article being misrepresented by Mises as quality journalism – or something, uhh. There are spelling mistakes + erroneous =/or shallow assumptions….. but never mind, the ORIGINAL IDEA still has some worth …..or, perhaps it was stolen + we don’t yet know from whom (Zuckerberg is not an excuse…).

But to the main point: “…there are actually millions of books in this condition, effectively burned and destroyed by IP law….. stopped by laws administered by fools, in complete violation of the rights of the creators themselves….. it is the reality of our times…”>

Well, what do you know, eh? It sounds just like Islam which famously pretends that its 7th century leader/founder is the last prophet, duh. Thus anything that anyone else says subsequently is held to be meaningless or blasphemy. This is actually dictating to God….. despite Muslims conveniently espousing that they have all ‘surrendered to Allah’.

What I am saying could be as irrelevant as much of Jeffrey Tucker’s article here….. but it describes what happens when legalism usurps human creativity or human spirituality, both of which are essentially the same. Man’s laws are NOT God’s laws + no legalist or jurist has ever created anything except obstacles to human progress. They are useless humans occupying positions of excessive power + defended by a contrived false immunity from prosecution for their own professional shortcomings + failures.

DixieFlatline October 31, 2010 at 7:45 pm

Douglas, I read this three times, and I couldn’t figure out what (if any) point you were trying to make.

Paul October 31, 2010 at 9:17 pm

That’s three times too many.

Stephan Kinsella October 31, 2010 at 11:23 pm

according to the IP mentality he owes Dixie monetary damages for foisting this faulty idea on him–strict product liability for a defective thing.

Dane Morgan October 31, 2010 at 6:55 pm

Self publishing through Amazon’s CreateSpace offers an outlet to a large market, affordable publishing and flexibility to other distribution options of your choosing. Their licesne to print your publication is specifically non exclusive and you are free to publish through any other channel.

Lila Rajiva October 31, 2010 at 8:34 pm

The author confuses several issues and conflates MISATTRIBUTION and violation of copyright or ip law.

Among many other fallacies in this piece, Zuckerberg violated a contract, misrepresented that he came up with an idea he didn’t (INTELLECTUAL FRAUD), and leveraged the advantage he gained from other people’s work to cut into market share that would likely have been theirs in his absence.

The fact that certain kinds of IP are probably not defensible out of cost and time contraints or are being misused because of monopoly conditions in the market doesn’t make IP itself invalid.

Jeffrey Tucker October 31, 2010 at 9:33 pm

Lila, if a friend suggests that I help him mow a few lawns for money, and, instead, I start a lawn-mowing company for the entire county, do I now owe him money?

Nicolás P. November 1, 2010 at 4:29 pm

According to Ayn Rand: Yes. And therefore you are no longer my friend.

Seattle October 31, 2010 at 9:37 pm

Zuckerberg violated a contract

What contract?

leveraged the advantage he gained from other people’s work to cut into market share that would likely have been theirs in his absence

You mean he out-competed them?

iawai October 31, 2010 at 10:02 pm

The fact that certain kinds of IP are probably not defensible out of cost and time contraints or are being misused because of monopoly conditions in the market doesn’t make IP itself invalid.

So how do we know what kinds of intellectual privilege are defensible by your utilitarian standards? How does one prevent misuse due to “monopoly conditions”?

To really prove whether any type of intellectual privilege is valid, wouldn’t you require each individual who asserts any type of protect to fund their own enforcement? When this type of competitive system is realized, wouldn’t there truly be no intellectual property except through contractual relation – either explicit and specific to certain works or implicit (with regard to what is protected) and general between actors who agree not to copy anything another has done as long as certain conditions of the creation are met?

I agree that there are some kinds of idea related concepts that would be protected by competing courts (i.e. those required to prove the efficiency of any scheme) – but they would be protected under causes of action that you mentioned in your post, namely fraud (e.g. selling something that you contend is something else). But even then, is the copyist liable for damages to the original creator? No, for the original creator has suffered only “pure economic loss” (legal term of art) and no damage to his own person or property. Only those that were defrauded could recoup damages.

In short, IP itself is the creation by force of law the monopoly conditions that allow the misuse of ideas on the market. The only way to find out what is “real” IP or mere statutory fiat is to detach any and all creation, enforcement, and adjudication of intellectual claims from the monopoly of state power. Thus, the abolition of “IP” should be seen as the real birth of Intellectual protection.

Gil October 31, 2010 at 10:06 pm

“It is not one of the “armchair” issues that you can solve without much thought or serious study.”

Really? For many here the I.P. is easy to solve – there’s only property rights in physically property and no other.

Seattle November 1, 2010 at 12:49 am

This conclusion is non-obvious.

Gil November 1, 2010 at 3:17 am

Aw bull! You’re someone who dismiss I.P. as Imaginary Property. You’re one to say people can’t own ideas and so forth hence to you legitimate property is to be found in physical, tangible property. Hence you should have no problem solving the issue of I.P. in an armchair – it’s not tangible therefore it cannot be property.

Seattle November 1, 2010 at 9:00 am

I’m also one to say there are no integer solutions for x^n+y^n=z^n for any n>2. That we already know that doesn’t make it a simple conclusion.

Gil November 1, 2010 at 8:16 pm

What? Do you need me to cut&paste one of your earlier posts on I.P.? The solution for those who don’t believe in I.P. is simple – have nothing but trademarks and trade secrets while everything is fair game.

Seattle November 1, 2010 at 11:13 pm

Trademarks and trade secrets must go as well.

Gil November 2, 2010 at 9:51 pm

What!? You can any chicken place calling themselves KFC now? Alternatively what’s wrong with Coca Cola having its employees signing a contract that they never reveal what they know of the secret recipe?

P.M.Lawrence November 7, 2010 at 4:24 am

That is incorrect. You also have to stipulate that x, y and z are positive and (I think, but I’m not sure) that n is an integer.

Steve R. November 1, 2010 at 7:49 am

You wrote: “The level of ignorance out there concerning copyright is amazing to watch.” Quite true. But there is also the historical dimension that needs to be emphasized. That is, each incremental change in copyright has moved in the direction of being “stronger”. Yet when analyzing copyright, it tends to be from the perspective that copyright has always been this way.

It hasn’t – it has been a growing incremental “land grab”. In combating the ignorance concerning copyright with education, the historical trend must be recognized too.

———————

You wrote: “There is no greater illustration of the arrogance and pretensions of the state that it imagines that it can bottle these up and buy and sell them, becoming a global mind reader of everything we see and hear, all in the name of property-rights enforcement.” From my perspective, the dynamics of this statement are “wrong”. True, the State makes the laws. But the problem is that these so-called “property-rights” are being “created” by corporate entities suing each other and by buying favorable legislation from the congressional supermarket. I would advocate that if it weren’t for corporate interference the State would have NO interest in “protecting” so-called intellectual property.

Dr. Ignorantia November 1, 2010 at 4:43 pm

The congressional supermarket is entered by rent-seekers through a revolving door.

Perry Mason November 1, 2010 at 3:15 pm

Maybe I am off base here (I admit to not being well read in the area), but my impression is that the founders incorporated the IP clauses in the Constitution for practical reasons, however wrongheaded. That is, the case for early IP was very much a pragmatic case rather than a moral case, at least for the continental Congress.

In which case, it is odd that a system justified largely on pragmatism, and which reflected that pragmatism with much shorter time limits on monopoly grants, has become so morally licit and even morally compulsory.

How do you square that circle?

Publius November 1, 2010 at 4:56 pm

In “The Facebook Effect”, the author states that sixdegrees was a company that worked like Facebook in the 90′s, but was a failure because it was too early. The company went out of business and kept the software patents, which it later used to harass Facebook, and possibly to extort money. According to Wikipedia:
SixDegrees.com was a social network service website that lasted from 1997[1] to 2001 and was based on the Web of Contacts model of social networking. It was named after the six degrees of separation concept and allowed users to list friends, family members and acquaintances both on the site and externally; external contacts were invited to join the site. Users could send messages and post bulletin board items to people in their first, second, and third degrees, and see their connection to any other user on the site. It was one of the first manifestations of social networking websites in the format now seen today. Six Degrees was followed by more successful social networking sites based on the “Social-circles network model” such as Friendster, MySpace, LinkedIn, XING and Facebook.

tesla921 November 8, 2010 at 3:46 am

Does this mean that I can open my own MacDonalds, copy their idea to a tee (golden arches and all), and not pay them a franchise fee? …Are you sure some lawyer didn’t come up with this?

Lila Rajiva December 29, 2010 at 8:50 pm

“Lila, if a friend suggests that I help him mow a few lawns for money, and, instead, I start a lawn-mowing company for the entire county, do I now owe him money?”

I think the Zuckerberg case was spun by Hollywood.

Z was called in to do work on a project that was intended to be a productive, competitive business, not just some thing among friends, and while giving his word he was working for it, he pretended he was giving it his attention and took what he had learned/appropriated from it to start his own competitive business…and then, moreover, slammed and lied about the people he stole from.

And that is not the sole instance of that kind of beh
avior from him.
I think you are getting the pop version of the story.

As long as we glorify and incentivize criminals and not businessman, we will get crime not enterprise…which is precisely what we DO have, no?

I know socialists think capitalism is criminal in its nature. But its a bit thick to find the capitalists think the same thing too…

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