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Why I Prefer Permissive Licenses to Copyleft
Why I Prefer Permissive Licenses to Copyleft
Below I collect my responses to others' criticisms of
Why I Prefer Permissive Licenses to Copyleft.
Robert posted his initial criticisms as a string of comments on Neocities, whereupon I replied in a text file.
Robert posted his second reply, entitled
Of Copyright and Corporations, on his site; my response to this is given below.
Regarding anarchy, it's true that very oppressive authorities, whether it be a single person or a group of persons, can arise from it, and political liberty for all under that authority thereby decreases greatly or even vanishes—but when this has happened, it is no longer anarchy. Anarchy itself, during its existence, before something else replaces it, is undoubtedly the freest form of human existence because, quite simply, there are by definition no authorities making rules, i.e., there are no restrictions, either in the form of law or arbitrary will. The cavemen who inhabited the Earth during the early days of the human race, before the existence of states and governments, were some of the freest individuals who ever lived, and this is because they lived in anarchy.
Of course, this doesn't mean that anarchy is desirable: there would be no method or system to protect individual rights, and hence it would be very dangerous and volatile. I'll readily concede that anarchy is not the most morally desirable form of social organization; this is also why I am not an anarchist, but believe that some (very small) government is desirable. However, I still maintain without hesitation that anarchy is the freest form of social organization, with the highest degree of political liberty; that some despotic ruler or state subsequently arises from it does not in the least invalidate this fact, because by then it is no longer actual anarchy.
Regarding your response to (1), firstly, I am glad to hear that you were once a libertarian. (Why are you no longer one?) Secondly, I acknowledge that government has funded and executed some good things which would never have been realized without it, but still I maintain that its purpose is not to undertake public works; instead, it is merely a tool whereby individuals secure their rights against violations by other individuals. Such public works require taxation for their funding, and hence diminish the freedom an individual possesses over his earnings without contributing anything to the protection of his rights, the last item being the sole legitimate purpose of government and the motivation for its invention.
As for libertarians who accepted (1), the most prominent example is probably Robert Nozick, who in the 1970s presented a defense of the minimal state in Anarchy, State, and Utopia; no doubt many others were convinced of the view by that influential book. Herbert Spencer argued similarly in the 1880s in The Man Versus the State, so this is obviously not an idea merely of the last few years.
Your two separate responses to (2) are quite unfortunate. When I was writing the syllogism I assumed that you would accept (2) and only contest (1) (and we would then debate from there), because I believed that you were also aware that copyright originated as a method simply to promote the production of creative works: the beginning of the long title of the 1710 Statue of Anne is
An Act for the Encouragement of Learning, and its first paragraph declares that it was passed to prevent unauthorized copying of the books/writings of an author because such copying causes them
very great detriment and
too often [ruins] them and their families, and also
for the encouragement of learned men to compose and write useful books—nowhere is there any mention of securing a natural right. The beginning of its second paragraph merely confers, but does not secure, any rights (
the author of any book or books already printed ... shall have the sole right and liberty of printing such book and books for the term of one and twenty years). But an individual/natural right is not conferred by a government: we possess them prior to and regardless of any legislation. Additionally, prior to the Statue of Anne copyright was nothing more than a system of government-granted privileges, printing licenses, and even censorship. The notion that copyright law actually protects any intrinsic right was only (erroneously) tacked on later.
An individual/natural right cannot expire (barring any immoral act on the individual's part), but the term of copyright protection in the U.S., even today, is not perpetual; it's been extended by arbitrary amounts over the years by the government. It would be absurd to imagine my property rights in my car automatically expiring after a set number of years enumerated by statute, and its ownership thereafter passing to the public, because my property rights to the car, once I have acquired it (and assuming I acquired it morally, and do not thereafter commit an immoral act and thereby forfeit them), are natural rights that cannot be taken away or limited by a government—but this is precisely the legal situation with copyright. I don't want to get involved in a discussion about intellectual property in general, because that phrase also includes other concepts like patents and trademarks in which I am far less interested and about which I am far less informed, but in regard to copyright, at least, I deny that it is a natural right. The law surrounding it did not originate to secure/protect any individual right, and even today its functioning is unlike that of any other type of property law.
However, I admit that I could have been clearer in my phrasing of (2), and perhaps expressed it thus:
2. Copyright originated simply as a legal invention/tool intended and designed to promote the production of creative works, and hence is not actually an individual right.
I was quite delighted when you mentioned China in your response to (3). I've traveled to that country a few times, and when I was there I noticed the almost complete lack of enforcement of copyright, yet nobody would seriously maintain that China today is devoid, or even suffers from a scarcity, of cultural/creative works. I was struck by the freedom the Chinese had in this regard: piracy and bootlegging is very common, and not only is practical enforcement lacking, but social acceptance of those things is also widespread. Very frankly, with respect to copyright I believe China got it right, and the West got it wrong. (I admit, though, that there's also an element of ethnic pride: I am actually pure-blooded Chinese, and I take a devilish delight in seeing vigorously pro-copyright Westerners squeal whenever my fellow Chinese completely disregard this foreign concept.)
I think you misunderstood me when I wrote,
This is assuming, of course, that copyright even works as it was intended to—there are arguments even denying its effectiveness: by copyright working
as it was intended to I meant its goal of promoting the production of creative works, and by
arguments even denying its effectiveness I was alluding to the assertion briefly described in the second half of that sentence; I wasn't referring to rulings in courts. I only mentioned that particular argument in passing because I personally don't rely on it as my justification for copyright abolition.
When you ask me to propose an alternative to copyright law, I reply that an alternative solution need not first exist to abolish copyright, since, again, copyright law is not a legitimate function of government. We don't need to first have a viable substitute if the original thing shouldn't even exist in the first place. Nevertheless, if assisting artists in making a living is a goal, then we could establish more sites/institutions like, e.g., Kickstarter and Patreon, implement a system of
voluntary collective licensing, encourage private arts patronage, or establish an online payment system to support artists directly.
I continue to be puzzled by your insertion of the topic of plagiarism into this discussion. Plagiarism is representing another's work or ideas as your own, and thus taking for yourself the credit deserved by someone else; copyright infringement is the violation of someone's rights granted—not secured/protected—by copyright law, and typically includes things like unauthorized copying, modification, and distribution. (If these are not the definitions of these words you have in mind, then please explain your understanding of these concepts; I don't want our debate here to be caused by a mere discrepancy of definitions.) Again, they are separate acts, even if they may sometimes occur together. Your statement that
Plagiarism of a copyrighted work constitutes copyright infringement is also not true in every context: the author of the work could have given permission (e.g. with a permissive license) to the plagiarizer to use it, or the plagiarizer's use could have constituted fair use, and thus there is plagiarism of a copyrighted work without copyright infringement. At one point you equate copyright abolition with
effectively legalizing plagiarism, but plagiarism is already legal—both in the two scenarios just described, as well as in the case of someone representing another's idea (which is not protected by copyright law) as his own and in the case of him representing public domain works as his own.
When you ask how I would contend with plagiarism without copyright law, I reply that there already exist many mechanisms to discourage and punish it, and which have nothing at all to do with that law: those who plagiarize are met with opprobrium and lose much of their respectability, and may also face formal penalties from their school or workplace. If you believe that this is insufficient, then it is also possible to pass legislation specifically prohibiting plagiarism, but that would be an entirely different matter which has nothing to do with our present conversation concerning copyright. Again I emphasize that I disapprove of plagiarism, but am simply confused as to its supposed relevance to copyright.
So? Length doesn't necessarily constitute verbiage, which is defined conditionally. I haven't read the GPL in toto for years, but I don't recall in it any superfluity.
I don't really know what else to tell you here that I have not already stated in the
Longer and More Complex Licenses section of the essay. At this point I suppose that all I can do is urge you to read it again.
I commend you for using FreeBSD, which I know is licensed under permissive terms. In the course of writing the original essay I learned that the most widely used BSD variants (viz., FreeBSD, OpenBSD, and NetBSD) are all permissively licensed, and consequently I even considered using (or at least trying out) one of them myself. I admit that I am genuinely interested; if it will also put a stop to your pestering me on the matter, then perhaps I will look into BSD after all!
This may seem paradoxical to you, but they are defending freedom by preventing others from fettering it.
It's highly paradoxical and counterintuitive, because by applying such licenses to their work they invariably fetter it. Again, I can only point to the
A Strange Definition of Freedom and
Misplaced Attention and Concerns sections of the essay and suggest re-reading.
I'm not bothered when a corporation, for instance, slaps pride flags everywhere on their products or postures in their advertising/social media about how
diverse they are, because their intent there is simply to appeal to a certain demographic and thus increase sales—I really doubt that they actually believe in that nonsense. Of course I am troubled and greatly detest, for example, the censorship of Google and Twitter, but my hostility in those cases is limited only to the specific corporations partaking in it; I don't automatically hate every corporation because of the actions of a few. You should consider each corporation separately, and judge their actions accurately, putting the latter on a scale from the harmless (including fake appeals to progressives in their advertising to increase sales) to the troubling (private censorship on their platforms or firing an employee for not being sufficiently progressive) to the truly inexcusable (supporting legislation, as you claim, pushing a far-left agenda, with such legislation actually passing because of their support), rather than reflexively perceiving every corporation as evil (like a true teenage progressive) because certain ones have acted in such a manner.
Surely you understand that profit is, though not the soul of craft or art itself, among the the principle inducements to human advancement?
Can you understand that millions of individuals partially rely on copyright for their livelihood and artistic recognition?
Yeah, that would minimize, if not eliminate an entire sector of the economy and culture to satisfy the consummation of an extreme and otiose principle. Why, exactly?
These are somewhat related, so I will address them all at once. First, the entire reason I subscribe to the
extreme and otiose principle of limiting the role of government solely to the protection of individual rights is because anything more than this reduces freedom; in fact, even the passing and enforcement of any laws to protect individual rights decreases freedom—recall what I said earlier about anarchy—but this is nevertheless justified because it is an effective means to secure those rights, which ought to be inviolable. Of course I recognize that abolishing copyright will render it more difficult, at least for some time, for many artists to profit from their work and therefore make a living, but I advocate for it because I believe that the benefits will outweigh the costs: with all copyright laws repealed, we can by definition attain maximum freedom in this sphere while simultaneously leaving no natural rights unprotected (recall also that I deny that copyright is a natural right), which is a very great benefit indeed. (However, I admit that I could have been clearer about this point in my previous reply.)
Second, you seem to me to assume that abolishing copyright will lead to a permanent reduction in creative/artistic output, and that artists/authors will never again enjoy the same level of financial incentive currently offered by copyright. You should realize that copyright law is only one among many methods to assist artists and promote creative works, and it is certainly not a sacred or ingenious one (passing laws prohibiting something does not require any extraordinary talent); it's simply a state-granted monopoly, and should not be perceived as a thing special and irreplaceable. It's unfortunate that a group of legislators in Britain a few hundred years ago saw the need to involve the law and the government in order to promote the production of creative works rather than devising a private means to accomplish that aim, and it is even more unfortunate that the practice thereafter spread to other countries and became so entrenched culturally that many, at least in the West, cannot imagine ever abolishing it. Perhaps its disappearance, in addition to the great increase in freedom which would result, would also spur an enterprising person or group of persons to devise their own clever—and private—system to compensate artists and thus fill the gap left by copyright, with the profits to be received from the market offering them the incentive for their undertaking.
Even if you don't accept (1), and even if you also don't accept the theory that copyright is actually a hindrance to creativity, might you accept that abolishing copyright, though it may bring a short-term reduction in creative works, will result in the long term in a return to current levels of production as more private substitutes surely arise in its place? Certainly if there is a chance that we can abolish copyright and hence increase freedom, while also maintaining in the long run the current cultural output and the size of its accompanying market, that we should take it? (Of course, I myself do accept (1), but I direct the foregoing specifically to you.)
In short, this is simply an expression of the attitude, common to many libertarians, that we ought to seek a non-governmental solution to our problems rather than relying on the government to pass ever more laws regulating our behavior and inevitably reducing our freedom. Today we have more tools and methods to support artists and foster creative output, and, indeed, already some private solutions and systems have appeared—e.g., Kickstarter and Patreon—that were not possible just a few decades ago. Copyright law daily appears less essential for promoting creativity.
Also, do not compare me to Marx or his followers. I very strongly believe in property rights as natural rights, but exclude copyright because its nature is fundamentally different from all tangible goods. As I stated earlier, even the copyright law which you defend does not function like property law for physical objects, but instead reflects its origins as a temporary legal monopoly on copying conferred by the government.
Finally, my beliefs are indeed libertarianism; specifically, they're a mixture of minarchism and cyberlibertarianism. My views concerning copyright, I think, are less a product of my age than of my primary interests (computers and the Internet), and of the communities to which I gravitate as a result of those interests: the computer, software, imageboard, and other Internet-based communities have a long cultural tradition of skepticism of, disregard for, and even outright opposition to copyright, as you are probably aware. One of the most basic operations of the computer is copying data, so when copyright laws restrict such a fundamental thing as that, we feel that it's very stifling and even absurd, and believe that a weakening or removal of such restrictions is progress towards more freedom, not retrograde motion. It's clear that you are a film enthusiast, so I can at least understand your support of copyright as being a product of that particular community's values.
Robert's third reply, entitled
Prolixity on Proprietorship, was again posted on his site; the following is my response to this.
Your comparison of communism and anarchy in this regard is likely accurate, but it only concerns the potential end-states into which they may transform; in terms of freedom the two systems themselves—that is, before a tyrannical ruler or state emerges—are as far apart from each other as can be. Also, it's unfortunate for me to hear that freedom is not your greatest good; it has always been mine, subject to the sole—but crucial—constraint that individual rights are not violated.
I was very happy to read that you also champion freedom of expression, association, and self-defense, as well as advocate for non-interventionism; those are all principles which I believe in very passionately. Out of curiosity, of those ideologies known to you, which most closely corresponds to your beliefs?
The reason I insist so strongly on limiting government to the protection of individual rights is because permitting government to do anything more, besides in the first place diminishing freedom without securing any additional rights, in the second place serves as a ready invitation for its growth as it claims that more and more good things must be done, that it is authorized to do them, and that ever more taxes must be collected, departments and agencies formed, and legislation passed in order to realize those ends, thereby reducing freedom even more and possibly also violating individual rights. The United States government was founded on very libertarian principles, but its natural inclination to expand its scope and authority, and our general willingness to allow this so long as it performs some good deeds along the way, has resulted in its growth into one of the most expansive and powerful governments on Earth which constantly attempts to undermine and circumvent the intent of, and protections of individual rights guaranteed by, the Constitution. At one point you write that you are
someone who believes that his government is larger than it should be by orders of magnitude, which is a sentiment I also wholeheartedly agree with—don't you think that its progression to its current enormous size could have been prevented, or at least greatly delayed, if only we had followed more closely the principles of the Constitution? Here I'm reminded of a maxim stated by Hayek in his The Road to Serfdom:
We shall never prevent the abuse of power if we are not prepared to limit power in a way which occasionally may also prevent its use for desirable purposes.
Referencing my copy of Anarchy, State, and Utopia, I can report that Nozick devotes only half a paragraph to the subject of copyright and does not even state his position on it, but merely mentions the disagreement between libertarians on the matter as an example in order to illustrate another point. A cursory Web search on my part also doesn't yield anything pertaining to his views on copyright; if you know of a book or essay in which he expresses those views, might you send it my way? I would be quite interested to read his thoughts on the topic.
Upon inspection, it appears that even the aim of the Copyright Act of 1790 was simply to promote the production of creative works rather than to secure/protect any natural right: the beginning of the act's long title is
An Act for the encouragement of learning, which is the exact same as that of the Statute of Anne; and Section 1 of the act, again like the Statue of Anne, only confers, but does not secure, any rights:
the author and authors of any map, chart, book or books already printed within these United States ... shall have the sole right and liberty of printing, reprinting, publishing and vending such map, chart, book or books ... And that the author and authors of any map, chart, book or books already made and composed, and not printed or published, or that shall hereafter be made and composed ... shall have the sole right and liberty of printing, reprinting, publishing and vending such map, chart, book or books ... (emphasis added)
Again, a natural right, by definition, is not conferred by a government. However, I don't want to focus too much on analyzing the specifics of the phrasing of the act, because the more important thing, I think, is to address the example of the car I provided in my previous response. Of course the law handles even real and personal property differently, and hence to argue that copyright law ought to function the exact same as personal property law is nonsensical—but this was not the point I was trying to make. My point was that a natural right cannot automatically expire after a predetermined amount of time set by statute: they are held by me for as long as I am alive, and cannot be taken away by the government in such a fashion. Such is the case not only with my property rights in my car, but also my property rights in my house, as well as all my natural rights outside of my property rights, like my right to self-ownership, to freedom of speech, to self-defense, to freedom of association, to freedom of religion, etc.: assuming that no immoral act is committed to forfeit them, I hold these rights for the entirety of my life, and the law also reflects this. Yet copyright law lacks this essential characteristic which is present in the laws concerning all these other indisputable natural rights. (However, I admit that I could have mentioned these other natural rights in the previous response so as to clarify my point, rather than only offering the example of the car, which consequently led to this misunderstanding.)
Returning again to the Copyright Act of 1790, even if you ignore the actual language of the act (which, as I showed earlier, indicates that it was passed merely to promote creative works, and not to secure any right), why would the Founding Fathers explicitly set the term of copyright to only 14 years instead of the life of the author if they believed that copyright was a natural right? They didn't set any time limits to the individual rights guaranteed by, e.g., the Bill of Rights, because they must have understood that attempting to do so by statute would have been an absurdity, since those rights cannot just expire. In light of all this, I can only conclude that copyright is not an individual right, and also that copyright law in this country did not originate to protect/secure any individual right—in short, that (2) also holds true for the U.S.
A debate concerning copyright in which the subject of intellectual property is overlooked is as workable as a contestation pertaining to macroevolution that omits any mention of morphology. If you can't defend your opposition to a phenomenon that you don't understand, you've no ethical place to adjudge it.
I don't believe that this is a fair assertion: copyright is a distinct thing, with its own definition and accompanying set of laws that may be understood by themselves, without invoking the concepts of patents, trademarks, and intellectual property in general. We've certainly managed to have a long (and fruitful, I would say) discussion on copyright without venturing into the wider category of intellectual property.
Regarding copyright in China, I'm well aware that legislation formally exists, but we all know that actual enforcement, aside from some exceptions in which the infringement was simply too conspicuous to ignore, is far more lax when compared to the U.S. or other parts of the West. For instance, could you imagine a small store here selling bootlegged DVDs and Blu-rays openly and for any significant length of time, even if all the DVDs and Blu-rays were of non-U.S. origin? Yet from my time in China—including even in Beijing and Shanghai—I can inform you that this is what daily occurs there, and it's not widely considered disreputable. Those sellers, to me, had great freedom in this regard, and I hope that China will always retain this aspect of its culture. Perhaps things have recently begun to change, and enforcement is becoming more common, in which case I can only declare: Keep your foreign idea of copyright out of China, you Westerners!
I only cited Kickstarter and Patreon as examples to be followed in their payment schemes for artists, not in their terms of service. I know that these two platforms are very restrictive, but nevertheless there have been many projects realized and artists compensated through them, thus demonstrating that, at least on the financial side, their models work. All that remains now is for a competitor to imitate their proven payment systems while offering far freer terms of service; the more restrictive Kickstarter and Patreon become regarding what they permit, the larger this demand for a freer alternative grows. Already there is SubscribeStar, which has much looser content guidelines and hosts individuals who are very much critical of progressivism, like YouTube user Carl Benjamin (AKA Sargon of Akkad) and Paul Joseph Watson.
When you say that abolishing copyright will legitimize plagiarism, I reply that far more is required to realize this: we would also need to change prevailing social attitudes concerning plagiarism, i.e., convince people that it's somehow ethically and morally acceptable to plagiarize; simply repealing some laws will not lead to this. Also, I don't know why you state that representing another's idea as your own or representing public domain works as your own is not actual plagiarism. If a friend verbally communicates to me the plot of a novel he has conceived but not yet written, and I thereupon write and publish my own novel based upon the plot, claiming that the whole thing is my original work, have I not committed plagiarism of his idea? And if I compose my own original poetry and decide to compile it into a book, but also include in it a few of Shakespeare's sonnets (which are in the public domain) and then claim that the whole collection was written by myself, have I not also committed plagiarism of his sonnets? (I gave my definition of plagiarism in the previous reply, and you didn't object to it, which is why I wonder how you could deny that these two scenarios are actual plagiarism.)
However, after some consideration, I agree with you that copyright law's effectiveness in guaranteeing proper attribution is important, and that, under current conditions, this particular function of it should not be abolished until a superior private mechanism is developed to replace it. I acknowledge that many people currently rely on this law to secure recognition for their creative efforts, and it would be harsh to suddenly deprive them of something to which they've become so accustomed. I also admit that it would have been extraordinarily difficult for Carpenter and Castle to obtain an indemnity from Besson in the absence of copyright law—but I would only add that, even without that law, Besson would still have suffered damage to his respectability once his plagiarism was exposed.
Note that the BSD and GPL licenses are each freer and more restrictive than one another in different ways ...
I agree, it is paradoxical and counterintuitive, but it's also true: from their restraints eventuates more freedom, and in more propitious conditions.
The whole purpose of the original essay was to argue that permissive licenses (including the BSD licenses) are unconditionally freer than the GPL and other copyleft licenses, and also that the former provide us in the end with more freedom. Alas, not only do we disagree about copyright, but the essay failed even to convince you of this point, which was my motivation for writing the thing in the first place!
Regarding the subject of corporations, I admit that I can now at least understand the deep and often justified hostility that many non-progressives hold towards them. In particular, whenever they support legislation that reduces freedom and infringes upon individual rights for their own benefit, I turn on them as viciously as you or any other reasonable person does; and even when they don't resort to the law, but, e.g., restrain free speech on their online platforms, I still lose much respect for them. The only thing I would caution you against is mistakenly perceiving as evil a genuinely harmless/neutral corporation (and I think you will agree that such corporations do exist), and especially against mistakenly perceiving as evil the truly rare (but still existent) corporation that actually upholds individual rights in both word and deed, like Defense Distributed and NearlyFreeSpeech.net.
I wouldn't know, but your reduction of this matter to its purely pecuniary or productive facets doesn't account for concerns regarding attribution or permission.
Most contemporary copyright legislation is focused first on security, then (when at all) on promotion. Any pretense that these are as concerned as the Statute of Anne for the pauperization of 18th-century British authors, engravers, typecasters, etc. isn't terribly germane.
If this is only a matter of money to you, and you can't fathom the personal and artistic merits of intellectual property as they pertain to recognition and dignity, I can't elucidate this point any more explicitly.
I only focused so heavily on the financial/promotional side of it in my previous reply because I was responding in turn to the emphasis you placed on that subject in your previous response (see the third block quotation in my previous reply), but I also recognize the importance of the attribution issue. Aside from this, however, I am glad to hear that you would be willing to discard copyright law if a private alternative were to arise that could fulfill its functions of compensating artists and guaranteeing them recognition. While I still hold the view that copyright ought to be abolished, after some consideration of your points I concede that it would be too callous to repeal all the laws outright when no true substitute for them yet exists: there are simply too many authors and artists—including very many decent, honest individuals—who have become dependent upon the current legal system of copyright for their income and artistic recognition. Had I been alive in 1790 I would have vigorously urged the Founding Fathers not to pass that year's Copyright Act and instead seek a private means to promote creativity and ensure proper attribution, and my task would have been far easier because I would have needed only to argue from libertarian principles—viz., proposition (1)—and not have had to worry about endangering anyone's livelihood or artistic reputation. Unfortunately, now that copyright law has existed in this country for 230 years, it has become so entrenched, and so many careers and industries depend on it, that I confess that we cannot simply uproot the whole system without major negative consequences.
I still wish to see the eventual abolition of copyright, because I still fully believe that it is not a legitimate function of government, but now I acknowledge that this should only be done once a suitable private substitute exists by which authors/artists can both make a living and receive their deserved attribution. I also fully agree with you that serious reform is needed to reverse the many abuses of copyright law by corporations; we can begin to implement those reforms immediately, and meanwhile we can also work diligently towards developing the private substitute(s) that ultimately will replace it. As more private alternatives inevitably arise in the future, I imagine that we may gradually reduce the scope of copyright, and hence gently wean people off the system, before finally getting rid of the thing altogether.
Why? MP3s and FLACs differ materially from tangible CDs, but both can be either freely or commercially available, and copied in a variety of ways. MP4s and AVIs share these commonalities with DVDs and Blu-rays. Immateriality is picayune when intellectual property has been exhaustively proven to meet every criteria of value.
Again I acknowledge the great value of creative works, but value itself does not elevate something to the status of a natural right. We should employ every private means and method to promote their production and secure attribution for their authors, and I've already conceded that we shouldn't abolish copyright until an equivalent or superior replacement exists, but I have also shown earlier, both in this reply and the previous one, that copyright—even in the U.S.—originated merely as a tool to encourage creativity and innovation, and was not perceived as a natural right.
Lastly, even if my views, as you say, aren't
concordant with the consensus of any broad majority, still you must admit that those specific communities I mentioned in the previous reply are, on the whole, significantly less favorable towards and concerned about copyright than the general population. Many computer programmers release their source code under permissive or copyleft licenses rather than proprietizing it, few people on YouTube during its early (pre-2010) years cared about copyright (except to insult it when their videos got taken down because of DMCA abuse), and images and other media—including original content—are freely and often anonymously shared on imageboards. When the youtube-dl repository on GitHub was temporarily disabled at the behest of the RIAA and much backlash ensued, I slept well at night knowing that, after all these years, the Internet still hates the RIAA.
By the way, I will check out BSD after I publish this.
Below is my response to Robert's fourth reply,
Copyright's Conceptual Cul-de-sac.
I think that freedom is a very worthy goal precisely because its unique character allows every person to pursue his own vision of what is the desirable way to live; this is in contrast with other conceptions of the greatest good, which would inevitably impose one moral vision upon everyone's lifestyle. I was much inspired by Nozick's
framework for utopia, which he elucidated in the final chapter of Anarchy, State, and Utopia: with the government confined only to the protection of individual rights and freedom thus increased to its greatest permissible degree, a system is provided for all individuals to freely form communities in accordance with their moral and ethical values (their own
utopias), and also to freely enter and leave already existing communities. No community would be required to implement the stereotypical libertarian utopia (i.e., one in which each member lives under laissez-faire capitalism, owns two dozen automatic rifles, and may do drugs and visit prostitutes to his heart's content); very restrictive communities, whose rules and values I would very likely strongly disagree with, would arise, and their existence would be permitted, subject only to the constraint that they do not violate rights. Freedom is permitted, but not enforced: nobody would be forced to start or join a community of gun-loving libertarian libertines—that is, that particular community's values and lifestyle are not imposed on everybody, but only for those who wish to enter into it. (In a way, I think, my preference for permissive licenses over copyleft licenses reflects this view: the former permit freedom, while the latter enforce it.)
National liberalism appears to be quite a respectable ideology, and one with which I probably have more agreements than disagreements. I also lament how the meaning of the term liberal has strayed so far from its original, correct definition, and I applaud your correct designation of classical liberalism as actual liberalism.
I will admit that the case of the Louisiana Purchase presented me with a somewhat difficult puzzle. My personal stance is that the Louisiana Purchase was constitutional because the Treaty Clause of the Constitution explicitly authorizes the president to make treaties with the consent of at least two-thirds of the Senate, and the Louisiana Purchase was, in fact, a treaty for which the specified majority vote from the Senate was received, but I know that you were focusing specifically on Jefferson's strict interpretation of the Constitution. In this case I suppose Jefferson was technically incorrect, and his proposal of a constitutional amendment explicitly authorizing the purchase wasn't necessary, but still I must commend him highly for staying true to his principles and hesitating over issues of constitutionality—such an important concern would have seemed very insignificant to any president since FDR (and probably also a few before him). Otherwise, however, we are in full agreement that the continual and very extensive expansion of the government from the Civil War onwards is deeply troubling, and the reasons you cite for this growth give me little hope for reversing it, or even of halting it. (Perhaps strict adherence to a constitution is viable in a non-Western country?)
Moreover, one of the many failings of neoliberal economics (to which too many libertarians subscribe) is its obliviousness to the basic reality that private enterprise grows, consolidates and corrupts in a manner analogous to government, and so must be subject to regulation.
Here I'm inclined to assert that additional regulations on private enterprise are not necessary, because the laws securing individual rights, if they are vigorously enforced, are sufficient to restrain corporations and to punish them should they violate those rights. However, I should add here that if corporations lobby for legislation which infringes upon individual rights, then it's perfectly consistent with my views for the government to impose additional restrictions on them which prohibit this, because in that case it is only acting legitimately in its function as the protector of individual rights.
As for Nozick's brief discussion of copyright in Anarchy, State, and Utopia, in my copy of the book (which is the first edition) it appears on page 141, and is offered as an example to demonstrate the lack of agreement about universal principles among libertarians, which in the absence of a state would render the punishment of offenders extremely contentious and confusing. His words run thus:
Consider for example, the issue of whether full-blooded copyright is legitimate. Some libertarians argue it isn't legitimate, but claim that its effect can be obtained if authors and publishers include in the contract when they sell books a provision prohibiting its unauthorized printing, and then sue any book pirate for breach of contract; apparently they forget that some people sometimes lose books and others find them. Other libertarians disagree. Similarly for patents. If persons so close in general theory can disagree over a point so fundamental, two libertarian protective agencies might manage to do battle over it. One agency might attempt to enforce a prohibition upon a person's publishing a particular book (because this violates the author's property right) or reproducing a certain invention he has not invented independently, while the other agency fights this prohibition as a violation of individual rights.
In addition, at the end of the third sentence of the above quote there is an endnote which reads,
For the first view see Rothbard, Man, Economy, and State, vol. 2 (Los Angeles: Nash, 1971), p. 654; for the second see, for example, Ayn Rand,Patents and Copyrights, in Capitalism: the Unknown Ideal (New York: New American Library, 1966), pp. 125–129.
According to its index, this is the only mention of copyright in Anarchy, State, and Utopia.
If you're so concerned about this, why aren't you apoplectic that freedom of association has been steadily, almost entirely eroded since the mid-'60s?!
But I am: if you are referring here to the Civil Rights Act of 1964, the Civil Rights Act of 1968, and other subsequent federal anti-discrimination legislation, I fully believe that they are all illegitimate laws which plainly violate the right to freedom of association, and hence ought to be repealed immediately—and I say this as a racial minority. It truly bothers me that such absurdities ever managed to become law: not only do they reduce our freedom, but they also infringe a natural right, which is contrary to the whole point of government.
I acknowledge that copyright enforcement in China of creative works of Chinese origin has likely increased in recent years, but in truth I cannot say that I'm comfortable accepting this change. I hope you can understand that, as a pure-blooded Chinese, I wish passionately to preserve the culture of my forebears, and to keep China largely free from foreign influences, whether Western or non-Western. This doesn't mean that China should refrain from importing anything foreign: I would readily embrace, for example, the widespread use of modern Western medicine in China, but in regard to introducing Western (or otherwise non-Chinese) legal concepts and practices (e.g. copyright) into the country I remain far more hesitant. (Even in the case of medicine, I would still maintain that it is important to preserve the knowledge, and maybe also the practice, of traditional Chinese medicine; even if it doesn't work, it still possesses great cultural value for all Chinese and is an irreplaceable part of our heritage.) I am simply wary of China mimicking the West to too great a degree, and thus losing too much of what makes it authentically Chinese.
To me, an obvious solution for SubscribeStar and other similar sites is to introduce cryptocurrency payments instead of relying solely on PayPal and the large credit card processors, thereby freeing them from the whims of the censors and freedom-haters while simultaneously earning them a bit of credibility amongst cyberlibertarians and cypherpunks. Now that cryptocurrencies are more widespread and accessible than they have ever been, I would contend that this is a very feasible option.
Regarding the legal punishment of plagiarists, one possible technique is the inclusion of an anti-plagiarism provision in an individual's publishing or employment contract (if they are, e.g., an author or an academic), violations of which would constitute a breach of contract that could be pursued in court. However, I'm aware that this will likely not be a satisfactory answer for you, as it obviously cannot penalize instances of plagiarism in which no such contract exists (including possibly Besson's case, which, if he had gone unpunished, would have been a great injustice), but it is at least a step towards decreasing our reliance on copyright law. Also, after carefully re-reading your statements concerning plagiarism in your previous reply, I realize that I misinterpreted you, and that you never actually stated that representing others' ideas and public domain works as your own is not actual plagiarism; my apologies.
At the outset, I probably should've clarified that my support for copyright is largely pragmatic, as a way to legally guarantee proper attribution and reasonably profitable conditions. I don't expect piracy (digitally, this is not truly theft, but simply unauthorized access and/or duplication) to end, and I know that it often redounds to positive cultural effect. What I do want is some means of redress when actual plagiarism occurs, and insurance of attribution.
I can't fault you too heavily for supporting copyright for these reasons. In my previous responses I argued extensively against copyright being a natural right, but I readily acknowledge that, even without involving natural rights in any manner, ensuring proper attribution and compensation for artists is undoubtedly an important goal; I merely wish that we had used different means to pursue it, i.e., that we had never gotten the government involved in the matter and thereby caused it to overstep its proper function. (I also commend you for correctly realizing that digital piracy is not theft, but rather is, as you say, nothing more than
unauthorized access and/or duplication.)
I am glad to hear that you don't regard all corporations (or their owners) as inherently evil because of the actions of a certain subset—the seventh footnote of the original essay was a jab directed specifically at those who do believe that all corporations, by their very nature, are evil, and when I was writing it I had in my mind an image of a typical immature progressive. I never denied that there are many malevolent corporations in the world which frequently attempt to erode our individual rights, but I admit that my phrasing of that footnote could conceivably be interpreted as such a denial.
If anything, this highlights the shortcomings of copyright as an instrument to safeguard intellectual property, recognition of which should probably be codified in law—with respect to the technologies that presently render so many facets of copyright unenforceable.
It is inevitable. If you want to rescind copyright, you must replace it with something superior; in doing so, you must acknowledge the conditions and some insurance of intellectual property.
Before I forget to ask, do you believe that ownership of intellectual property should be legally acknowledged as a natural right? If so, our conundrum is: how do we legally address the validity of intellectual property without either copyright or (unenforceable) proscription of plagiarism?
These all touch upon the wider subject of intellectual property, so I will respond to them all at once. In regard to the claim of intellectual property being a natural right, I will say that I am skeptical, and lean more towards denial than acceptance; when my views concerning the proper function of government are also considered, I think that you can figure out whether or not I believe intellectual property should be secured by means of the law. However, as with copyright, I realize that many persons currently rely on patent and trademark law (among others) for their livelihoods, and hence I concede that, even though these other varieties of intellectual property law are very likely illegitimate, we cannot simply repeal them all at once without first having a suitable private substitute.
You mention the DMCA, which makes me curious of your position on it: do you believe that it should be kept unchanged, reformed, or repealed entirely? (I assume that you are reasonable enough to not pick the first option!) Of all the copyright laws in this country that are currently known to me, the DMCA is easily the one I most dislike, because it is the one primarily responsible for bringing serious copyright enforcement to the Internet, which is in direct opposition to my cyberlibertarian desire to keep the medium as free as possible; I especially despise the abuse of DMCA takedown notices as a tool for censorship. The outright repeal of the DMCA, along with the (admittedly highly improbable) dissolution of the MPAA and RIAA and the resulting cessation of all the litigation and lobbying they engage in, are to me the obvious first steps towards the eventual replacement and abolition of copyright in the U.S.
The following is my response to Robert's fifth reply,
Speculation and Solutions.
We are in agreement on many points, so this response will naturally be shorter than the previous ones.
In a way, permitting a society the freedom to form a government however it pleases rather than imposing the minarchist (or otherwise liberal) system of government on it against its will is the freest course of action: for instance, if a society of devout Muslims elects to establish an illiberal, theocratic government and voluntarily surrender many of their individual liberties, then this is their right, and in truth I cannot find any moral justification to prevent them from doing so. I myself certainly wish to live under a libertarian government, but I also believe that the true libertarian attitude demands that I give others even the freedom to be unfree, rather than seeking to impose my preferred model of government on them, even if, in the end, this model provides more freedom for its citizens. (Of course, in the real world many national governments were not formed in such a manner, and routinely violate the individual rights of their citizens against their consent and prohibit them from freely leaving the country; in those cases their moral legitimacy is entirely absent.)
Your condemnation of progressivism is deservedly harsh. I was very apolitical until mid-2012, which is when I first learned of the existence of SJWs (whose beliefs constitute an extreme form of progressivism) while browsing 4chan's /b/, and I found their views and general attitude so repugnant that, for a good year or so afterwards, my political ideology was nothing more than simple anti-SJWism. Later on I became a libertarian, but my contempt for SJWs has never ceased, and over the years I have also grown to greatly dislike progressives in general because of their disregard for my individual freedom; I can readily imagine that a government of progressive zealots—that is, of SJWs—would be as much of an authoritarian nightmare as any fascist government. The progressive ideology in its present form is a virus that originated in and currently afflicts the West, and it must never be permitted to spread outside its current boundaries and infect other countries.
I'm not sure how you'd address this subject, but do you believe that everyone deserves a right to a salutary residential environment?
I don't believe that this is a valid individual right: it strikes me as being simply one component of the more general notion of the
right to health, whose status as an individual right I also deny. Any anti-pollution laws enacted on such a basis, therefore, I would find to be illegitimate, but this does not mean that pollution would go unchecked and unpunished: for example, a chemical company could not dump its waste on your land, for then it would violate your property rights; and a serious polluter whose actions damaged the physical health of one or more persons could be held criminally liable under the same sort of reasoning that an individual who slips poison into another's food is held. As regards the subject of lobbies, I am very hesitant to ban them entirely, though I wouldn't object to narrow restrictions on them which specifically prohibit any lobbying that could potentially erode individual rights.
Your remarks concerning freedom of association are very wise indeed, and I wish that more people would hold such an attitude. Freedom of association necessarily entails the freedom to exclude, even for the most arbitrary and trivial reasons; while such exclusion on the basis of an individual's race feels unpleasant, it's absurd that such feelings somehow managed to transform themselves into legislation which infringes such a fundamental right. Such laws do nothing to alter prevailing attitudes regarding race (which is the far more important thing), and may even result in more tension as individuals are forced to interact with those they would otherwise simply ignore.
... I know of few peoples who've preserved their culture with such enduring or meticulous sedulity. You should be proud to be Chinese: our species' largest family are endowed with incalculable talent, a nearly unrivaled collective intellect and more achievements than most. If anything, Hans may be our planet's best hope for progress at a time when Western Civilization nears its twilight.
Robert, thank you for these very warm and flattering words; you should be lauded for your appreciation of Chinese civilization. Reading them, I am filled once again with great pride for my ethnicity and heritage, which is a wonderful feeling that should not be denied to anybody. I will return the favor here, and state that you, as a Westerner—and maybe also as someone of white and/or European descent, if you so identify—have much to be proud about yourself when the West's innumerable artistic, scientific, technological, intellectual, cultural, etc. achievements are considered. You should not hesitate to take pride in being a (white?) Westerner; I find it pure madness how, in recent decades, such an individual living on the very land of his ancestors will face heavy social disapproval if he should dare to proclaim his pride for his Western heritage, and especially for his white/European ancestry—and, again, I say all this as a person who has not a single drop of white or European blood in him.
I find your views on intellectual property, patents, and trademarks quite interesting: you affirm the first as a natural right, yet question the second and reject the legal validity of the third, despite the latter two being major categories of the first. Very honestly, I was expecting you to defend the legitimacy of both patent and trademark law as staunchly as you had defended copyright law, and so your actual positions on these two topics were somewhat surprising to me. Are you doubtful that patents may properly be considered intellectual property, and fully convinced that trademarks are not? What categories of intellectual property do you believe are valid?
Lastly, I was quite impressed that you devoted the effort to devise a plan for a private system to replace (as far as possible) existing copyright law. I have two remarks:
author's name, date of creation, registration number/date, description) in an online database, and furnish these upon request either to a court or to the author. Perhaps some (or all) of the registrars could also allow the public to freely search their databases for the records describing each work (but not the works themselves, for obvious reasons), either for free or for a small fee: this way, disputes and other uncertainties regarding authorship may be resolved far more quickly and efficiently. The registrars could also provide an option, during the initial submission of a work, for an author to deliberately exclude this information from being publicly searchable, if he is so inclined to preserve his privacy.
refuse service to anyone conclusively guilty of plagiarism or other relevant misconduct or malversation, I assume that this also includes unauthorized sales, so that commercial pirates would have yet another reason to cease their actions. Of course, refusal of service for this reason certainly cannot come close to eliminating commercial piracy, and the law will serve as a far stronger deterrent, but I think that it must count for something, and is at least a small step towards further decreasing our reliance on copyright law.
Otherwise, however, the system you have thus described is already an excellent move towards reducing the scope of copyright law, and is a fine example of cleverly using private industry/methods in combination with other valid functions of government (e.g. enforcing contracts) to accomplish a desirable end, rather than simply passing more legislation. I would be very delighted if your scheme were to be realized, and while it's true that the government is still not out of the matter entirely, its role has nevertheless been greatly reduced—perhaps it is too much, after all, to expect a complete private replacement for the current framework of copyright law to be outlined in a single blog post.
This is my response to Robert's sixth reply,
Omnibus Syntheses and Contentions.
We had briefly discussed on IRC the recent events in Afghanistan, and I will reaffirm here my view on the matter: I'm also very glad to see the collapse of American interventionism in one part of the world as the native inhabitants of a country expel the foreign invaders (as well as the equally foreign doctrine of Western progressivism) and retake their homeland. I certainly wouldn't want to live under a Taliban government, but regardless they must be permitted the freedom to govern themselves as they see fit.
I was quite delighted (but not surprised, recalling your extensive vocabulary) when you used the term baizuo, for reasons which I'm sure you can readily discern. You state that
Asian societies are all but immune to progressivism, and the appearance and widespread use of this word in recent years is one reassuring indicator (among many others) that China, at least, views Western progressives with contempt, and will never succumb to their ideology.
Additionally, in other places you describe progressives and baizuo as
afflicted with a self-loathing, and compare progressivism to religious fundamentalism; all this immediately reminded me of Ted Kaczynski's description of leftists/progressives in his Industrial Society and Its Future, specifically in the chapters
The Psychology of Modern Leftism,
Feelings of Inferiority,
The Danger of Leftism. Kaczynski uses the term leftist rather than progressive, and oversocialized rather than hypersocialized, but in both instances he is largely referring to the same thing. (Note that I have read only the aforementioned chapters, and not the rest of the essay; I mention the former here because they are the most damning things written about progressives I've yet encountered, with the
Feelings of Inferiority chapter being especially merciless.)
Regarding the topic of pollution, even if a tenant could not turn to property law to prevent, e.g., a company from dumping its waste near his place of residence, if such an act consequently injures his health, then I still maintain that he could seek compensation, and the company would also face criminal penalties, for the reason I stated in my previous response—namely, that the company has, in essence, poisoned him; in such cases I would contend that additional anti-pollution laws are not necessary. However, I admit that this method cannot punish all cases of pollution—in particular, it would be extremely impractical for scenarios in which a very large number of entities (either individuals or companies) each produce negligible amounts of pollution that then combine to form a threat to many peoples' health (e.g., smog that arises as the aggregate of individually insignificant amounts of industrial and automobile emissions). In those specific instances, where it's practically impossible to assign blame—and hence penalties—to one or a few entities who are clearly responsible, I concede that some anti-pollution legislation will be necessary—at least until some suitable system of compensation for the victims of such pollution is implemented.
The reason why I am so hesitant to ban all lobbying outright is because lobbying, in principle, is simply the citizens communicating their interests, desires, and concerns to their government so as to attempt to influence its actions; lobbying is thus one component of their right to freedom of speech, and to prohibit it entirely would infringe upon that right. When, for example, you use your free speech to call or e-mail your congressman expressing your disapproval with a piece of legislation and calling for its repeal, this is technically lobbying, and a complete ban on the practice would (I assume) outlaw even this. Even if, later on, you form an organization with other like-minded citizens and work in unison to express your collective disapproval to the congressman, the principle remains the same: in both cases a citizen or group of citizens is merely exercising his/its right to free speech, and directing that speech towards the government.
However, I'm aware that you were focusing specifically on the lobbying performed by advocacy groups on behalf of wealthy organizations/corporations seeking only to exploit the government for their own benefit; in that case I certainly acknowledge that it has corrupted our government and caused it to stray heavily from its proper purpose. Quite honestly, the topic is a large one, and I confess that I am simply unsure of the extent to which specific aspects ought to be restricted, or even banned entirely, while simultaneously permitting lobbying in general and thereby preserving free speech: should corporations be specifically barred from lobbying? Should stringent limits be set on the amount of money which enters the process? In addition, not all lobbying is antagonistic to individual rights: the American Civil Liberties Union, the Electronic Frontier Foundation, and Gun Owners of America, for instance, all engage in lobbying that defends those rights; would a total ban on all lobbying organizations, therefore, be an unconditionally good thing? I will add, though, that I wouldn't be opposed to restricting—or even altogether prohibiting—any lobbying performed by or on behalf of foreign corporations, states, and individuals, for they are not even citizens of the government in question and hence ought not to have any influence in its affairs.
We aren't in too much disagreement with respect to patents. Their function for inventors is quite similar to the one copyright serves for artists—that is, they encourage innovation by securing recognition and compensation—and thus I would approach them in largely the same manner: we can retain the laws for now since they have existed in this country for as long as copyright law has existed, with many individuals consequently having come to rely on them for their reputations and livelihoods, while also moving towards the private replacement(s) that will inevitably arise in the future. (By the way, I personally find patents more tolerable than copyright, mostly because, at least in the U.S., a patent expires after no more than twenty years, whereas a copyright for a work can often last for a century or more.) As for trademarks, I had not previously considered the topic from a free expression perspective; if they are really nothing more than restraints on speech, then we have every reason to oppose them, and to advocate for the abolition of trademark law. (Now that I think about it, however, doesn't copyright law also run counter to freedom of expression? In fact, this is a major argument against it that I have somehow managed to completely neglect up till now!)
As in so many instances, I believe that the solution lies in technology, not politics. I'd exploit the latter as little as possible, and only because judicial involvement is occasionally necessary.
This is a very commendably cyberlibertarian attitude from you. The government and the law should always be the last resort for solving a problem, not the first choice.
I fully concede that some piracy is inevitable. In fact, I don't object to it when it provides what distributors can't or won't. In the mid-'90s through the early aughts, I bought scores of bootlegged videocassettes via eBay of independent, Japanese, German, Korean, Spanish, Hong Kong, and other movies that I simply couldn't obtain elsewhere. Here, attribution certainly wasn't a problem; big names like Tsukamoto, Herzog, Miike, Chen, Imamura, Wong, (Akira or Kiyoshi) Kurosawa, Almodovar, Teshigahara, et al. were blazoned in both the online listings and the tapes' photocopied cards and sleeves. VHS editions were either out of print or were never distributed in North America. DVD and Blu-ray editions of these flicks were years away (though many are still limited to domestic distribution), as were torrents. Neither was money much of a concern, as most of these filmmakers weren't collecting royalties on their works. This was an example of what I consider justifiable piracy.
Your remarks here, along with your openness to a private substitute for copyright law (and especially the fact that you devoted effort to outlining such a substitute) and various other comments you've made in your previous replies where you stated, e.g., that piracy is unauthorized copying rather than theft, that piracy often has positive cultural effects, that some file sharing should be permitted, that the DMCA should eventually be repealed, and that the RIAA and MPAA are awful organizations, all demonstrate that your stance on copyright, even though we disagree on some matters, is on the whole very reasonable. Our exchange has actually moderated somewhat my views on the subject, which I consider a valuable benefit.
Yes, most of the sellers were Chinese!
You're welcome, Robert!
Otaking uploaded, on his YouTube channel The Good Student, a video in which he reads and comments upon the essay, and in which he also indicated that he would write a response.
All written materials on this Web site are my own, and all are released under the Do What the Fuck You Want to Public License Version 2.
This page last modified on 1 September 2021.