KOL415: Commentary on Larken Rose, “IP: The Wrong Question”: Part 1

Kinsella on Liberty Podcast: Episode 415. Last year Larken Rose and I appeared on Patrick Smith's Disenthrall show, (( See KOL389 | Disenthrall, with Patrick Smith and Larken Rose: The Morality of Copyright “Piracy”. )) after Rose had posted some videos criticizing libertarians who pirated the HBO show "The Anarchists" as "poopheads," (( See "Pirating" Poopheads. )) even though he technically opposes IP. Or claims to. According to Rose, you should "throwing a couple dollars towards HBO" or something, to avoid being a poophead. He granted that someone pirating an already-leaked video file is not committing aggression (they have no contract with the creator), but they are a "jerk." Or "poop head." After all, the "creator" of the "content" put his "labor" into it and didn't "want it" to be pirated. And his "business model" depends on people "not pirating it." (( See KOL037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory. )) https://youtu.be/Gt3eZBrXcyE Or something. So you are a "poophead" if you mess up their unrealistic business model. In response, I pointed out that if your goal is to produce content—audio, videos, books, etc.—to promote liberty, then you are a "jerk" if you try to paywall it and make it hard for people to access, since you are limiting your content to only rich westerners. Larken was alarmed by this observation and called me a commie, even though I never said you don't have a right to erect a paywall; only that, if you can say someone engaged in the peaceful behavior of "piracy" (( Itself a dishonest, loaded term. See Stop calling patent and copyright “property”; stop calling copying “theft” and “piracy”. )) is a "jerk," then I can say someone who is pretending to be engaged in trying to spread the ideas of liberty is intentionally blocking people from seeing it, they are also subject to criticism. This apparently blew his mind. When I challenged him, he literally conceded that poor Africans who pirate a video, even if they could never afford to pay for it, are being "jerks." (Listen from around 28 to 31 minutes.) Unbelievable. Well now he's back on this theme. Apparently he's involved in some libertarian film Jones Plantation, what appears to be a low-budget libertarian film along the lines of J. Neil Schulman's Alongside Night or the Atlas Shrugged trilogy; let's hope it's better than those (which were both terrible; see this hilarious evisceration of Alongside Night, which seems to have gotten more views than the movie itself). (I intend to buy a copy—yes, buy a copy—and watch it later.) (Pettifogging, well akshually alert: it's not really "buying" a "copy" in a (libertarian) legal sense, since you can't own information; but it's paying a price to get access to a file download. See "Selling Does Not Imply Ownership, and Vice-Versa—A Dissection," in my forthcoming Legal Foundations of a Free Society—which, yes, will be made available free online; no paywalls, baby.) [Update: as I tweeted, I bought a copy and watched it—and it's surprisingly good! Not the Alongside Night-style disaster I was expecting.] I did this response video to elaborate some aspects of IP and libertarian theory that many people are confused about. My video response took longer than expected so I broke this into three parts. Parts 2–4 to follow: Update: See: KOL416: Commentary on Larken Rose, “IP: The Wrong Question”: Part 2 KOL417: Commentary on Larken Rose, “IP: The Wrong Question”: Part 3 Update: See also Patrick Smith's Disenthrall episode commenting on this matter and also on Eric July's use of DMCA takedowns regarding images from his comics appearing on Twitter, etc. https://youtu.be/8HIoVU3n-bU And one more thing. As I wrote to some friends: Another point just occurred to me, which I forgot to mention in my 150-minute screed. It is this. Larken says he's against copyright and that he would never enforce it, right? So in the movie, does he have a copyright notice, or not? Does he have a statement saying "I don't believe in copyright so would never sue pirates, but I'm not gonna make it easy for you—I'm paywalling it". Or more formally, "This work is published under a CC-BY license." Then he would be making clear that he disagrees with copyright and is disavowing federal copyright protection, right? He could still paywall his stuff. But he would just have a work with no copyright on it (in effect). Now if some user uploads it to youtube, they have permission (the CC license is permission—that's what license means: permission) and youtube would not take it down, even if they got a DMCA notice (I think; I suspect; if they took it down and the user appealed, pointing to the CC license, Youtube might well put it back up). Right? Ie., the only reason Larken is able to say that the user is violating Youtube's terms is because he's maintaining the default copyright status on his work that the FedGov gives him, which is what makes the user in violation of Youtube's policies (which terms are adopted only because of copyright law in the first place!). So if Larken did what he claims he believes—no copyright—and put a CC-BY notice on his work, then he would be unable to get it taken down. Just a thought. But it was bad enough when I said libertarians ought to want their message of liberty spread widely. I guess if I now say libertarians have an obligation to put a CC notice on their published works to disavow this evil federal scheme—I'm yet again a commie poophead. Oh well. Or put it this way: suppose Larken sends a DMCA takedown to Odysee but says "By the way, I would never sue the user, but I want you to take it down." Well then Odysee can say "hmm, well then it doesn't matter if we lose our copyright liability exemption, since there will be no liability for our user that we might be liable for." So... of course Larken would not say this. What if Odysee said, "Wait, you want us to take it down--would you ever really sue the user? Aren't you a libertarian?" What would Larken say? Would he lie, and effectively threaten the user? Or would he concede "no, I would not sue him," in which case Odysee might just say "go pound sand then." So, yes, by sending a DMCA takedown notice, it is in and of itself an implied threat to go after the user for copyright infringement. Update on this last point: it has come to my attention that in his book The Most Dangerous Superstition, Rose includes an odd copyright notice on the last page: A Note About the Copyright ... A “copyright” is usually an implied threat (“Don’t copy this, or else!”). While I hope that anyone who likes this book will buy additional copies from me, if someone does copy this book without my permission, that would not make me feel justified in using force against that person, or, my own or via “government.” I copyrighted the book primarily so that no one else could copyright it and thereby use the violence of the state to prevent me from distributing it. What is odd is that in the audio book version, he added a sentence to that notice. It reads: A Note About the Copyright ... A “copyright” is usually an implied threat (“Don’t copy this, or else!”). While I hope that anyone who likes this book will buy additional copies from me, if someone does copy this book without my permission, that would not make me feel justified in using force against that person, or, my own or via “government.” If, however, someone made piles of money from making and selling "bootlegged" copies, I might get nasty. But I copyrighted the book primarily so that no one else could copyright it and thereby use the violence of the state to prevent me from distributing it. (I have underlined the added text.) So let me respond to the many confusions or unlibertarian aspects of this notice here, in turn (and you will see why I fisked his video in a commentary video instead of in writing; some writings are so confused that it takes 10 times the space to debunk it): A “copyright” is usually an implied threat (“Don’t copy this, or else!”). While I hope that anyone who likes this book will buy additional copies from me, if someone does copy this book without my permission, that would not make me feel justified in using force against that person, or, my own or via “government.” I commend him for this. But then, it makes it even more conspicuous that he did not put such a disclaimer in the Jones Plantation movie. (I am assuming this; otherwise the users who uploaded it to Youtube or Odysee could probably use this to have their copies put back up.) What Rose is saying here is if you copyright something (he's wrong about this; it's automatic; on this, see below) it is a threat—usually. But not in his case since (a) he is stating that he would not feel justified in enforcing it, and (b) he's only doing it to keep someone else from copyrighting it (this is also legally incorrect; see below). But the point is, Larken thinks a copyright notice is a threat. Here he gives an excuse for why he did it and says he would not enforce it. But in the movie, they apparently don't do this. So by his own logic, the movie's copyright is a threat to others. Yet Larken in his video kept saying he would not "punch someone" for pirating it. Well threatening to punch them is also unlibertarian, broheem. If, however, someone made piles of money from making and selling "bootlegged" copies, I might get nasty. This seems to indicate he would be willing to sue someone for copyright infringement if they did more than just copy his book—if they made "piles of money" from it. So here we have a capitalist okay with someone doing something that doens't make money, but if they make money, that's bad! In any case, this seems to be a clear threat to enforce his copyright if he feels he needs to. The other absurd thing about it is the stupid idea that anyone could make "piles of money" from an obscure, amateur screed like this.