Monday, November 22, 2010

The Level Of Ignorance Concerning Copyright Is Amazing To Watch

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, 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.

Jeffrey Tucker: Study with the Leader of the Resistance


  1. it makes sense that they would also bear the liability for failure.

    This point doesn't make any sense... if someone hurts themselves while robbing your house, you aren't liable for their injuries.

    You know I support IP rights, I just hope you realize I don't support them in their current state. The internet, in particular, will force us to re-evaluate what IP rights are and how they should change, but I think it would be very counter-productive to remove the incentive to be creative.

  2. Bret, you've never explained how an idea can be considered property in the first place.

    but I think it would be very counter-productive to remove the incentive to be creative.

    So before IP, there was no creativity? In fact, there is no support for your notion at all, and further, IP actually restricts endless form of creativity all the time. The situation is the exact opposite of your assertion.

  3. If you don't count copyright, patents and trademarks as IP... then no, we don't need IP.

  4. Bret, I didn't expect you to actually have an answer, so thanks for not disappointing me.


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