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

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Kinsella on Liberty Podcast: Episode 415.

Last year Larken Rose and I appeared on Patrick Smith’s Disenthrall show,¹ after Rose had posted some videos criticizing libertarians who pirated the HBO show “The Anarchists” as “poopheads,”² 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.”³

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”⁴ 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.

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. I’ve heard this dumb retort so many times from copyright fascists. “See my post “Oh yeah? How would like it if I copy and publish your book under my name?!”: On IP Hypocrisy and Calling the Smartasses’ Bluffs”, where I wrote:

“Quite often some IP proponent will try the smartass retort, “Oh yeah? Well if you don’t believe in copyright I guess you won’t mind if I slap my name on your book and make a million bucks selling it, hunh?!” I mean, if the book would sell that well, why haven’t I made a million on it…. Why does the pirate think he can profit where I couldn’t? These retorts are never serious, and never coherent.”

In any case, let’s go on:

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.

This is bullshit. Such an argument might make sense for trademarks: for example, if you are using a mark locally and have not registered it in the federal system, then you have local, state-based common law trademark rights, but someone else would file a federal registration on the same mark and prevent you from expanding into other markets. So if you are using a mark it could make sense to file a trademark registration to prevent others from grabbing it and using it against you.

And there is a similar thing for patents. To get a patent you have to be the inventor. So if I fail to patent my invention, no one else can just see it and file a patent on it, as they would not be the inventor. However, independent or simultaneous invention is common, so someone else could get a patent on a similar invention (if they came up with it independently) and then they could prevent you from using the same idea even if you came up with it first (if: you were using it as a trade secret; and if you can’t avail yourself of the 2009 AIA’s “Prior Commercial User” defense).⁵ But getting a patent doesn’t necessarily stop someone else from getting a patent, since they might have filed first (you don’t know because patents are secret for 18 months). What can stop someone from getting a patent on an invention is if it was publicly known before the patent is filed. So suppose I have an invention I am using (in secret, say: as a trade secret). If I merely publish the details of this invention, then this means someone else who independently invents the same thing later cannot patent it because there is prior art already. So if you don’t want to bother with patenting your invention, you just make the details public, to cock-block others from patenting it.

Larken may have heard about these tactics, but they apply to trademark and patent. Not to copyright. Every original work of authorship fixed in a tangible medium of expression automatically has a copyright upon being fixed. The copyright is owned by the author. Period. You do not “copyright” your work. The law grants you a copyright automatically. Ever since the US acceded to the evil Berne Convention in 1989 (after it had been around for a century but America dragged its feed because initially we liked being able to pirate works of foreign authors, like Dickens),⁶ there are no formalities: that is, you don’t have to put a copyright notice on the work; you don’t have to register the copyright with the Copyright Office. You have a copyright even if you don’t. In short, an author never has the choice to copyright or not. It is not an act; copyright is no longer a verb, it is a noun. You do not copyright something; you have a copyright in a work (automatically, by operation of law).⁷

So you don’t copyright something. Larken seems to think his copyright notice creates a copyright (it doesn’t); and that this is a threat (kinda), which he apparently feels guilty about; but he thinks he needs to do it to stop others from “copyrighting” his own work (wrong). Only “the author” has a copyright in a given work. While it’s easy for someone to use the same trademark that I’m using, and it’s quite common for multiple inventors to come up with the same invention at the same time, it’s almost impossible for two authors to come up with the same original work. For example Ayn Rand wrote Atlas Shrugged, but it’s almost impossible for someone else to write the same novel independently. However, if he did, he would have a copyright in Atlas Shrugged (his version), and so would Rand (her version). Rand’s pre-existing copyright would not block someone else from independently writing it and having their own copyright in it (it’s just that no one would believe author 2 had really come up with the same text independently; the odds are a quadrillion to one against this).

So Rose is totally confused about how actual IP law works, but the point is that he recognizes copyright can be a threat, yet he chose not to dial back this threat in the movie, as he sort of did in this book; and that in at least one edition of his book, he reserved the right to enforce copyright against people who “make a pile of money” “off of” .. the fruits of his labor (proto-Marxian Lockean labor property theory bullshit, anyone?).⁸

***

Another update: for those who whine about people who “make money off of” one’s efforts (the implicit view behind the hostility to those who make monetary profit—heaven forfend!—from one’s intellectual works, instead of just… copying it or consuming it for … nonmonetary purposes (money bad! profit bad! commercial use bad!), see Sue Donimus, “How The Free Rider & Leaker Benefit The Author” and this quote from Rothbard:

“… the free-rider argument proves far too much. After all, civilization itself is a process of all of us ‘free-riding’ on the achievements of others. We all free-ride, every day, on the achievements of Edison, Beethoven, or Vermeer.” Murray Rothbard, “The Myth of Neutral Taxation,” also in Economic Controversies, p. 478 et pass.

Update: In his video, Rose says that if you “buy” the movie he doesn’t care if you have a watch party and show it to a group of people. But from the Terms and Conditions page:

The content on the Website, including without limitation, the text, software, scripts, graphics, files, images, photos, sounds, music, videos, interactive features, output text generated by the A.I. chatbot and the like (collectively “Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to DREW MEDIA, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. DREW MEDIA reserves all rights not expressly granted in and to the Website and the Content. You agree not to use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any other purposes whatsoever any Content, including, but not limited to, image, audio, and visual content…

If you can’t display it, how could you have a watch party?

The T&C page also says:

“DREW MEDIA reserves the right in its sole discretion to block access or discontinue services to offenders, and to investigate and take appropriate legal action against anyone who, in DREW MEDIA’s sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities.”

Yet Larken tried to characterize the DMCA takedown as simply getting a website to enforce its own policies, instead of using the threat of copyright law.

I quote here in full the comment about this posted on my third episode video:

@justlolatthisworld7917

6 hours ago

Absolutely phenomenal Stephan. You completely eviscerated his lack of coherent argument (or any argument at all, really. Just a strawman-fest). Been following you for decades now. Love your writings, videos, and other works. You are by far the most prolific and knowledgable intellectual monopoly opponent – not just of our age – but ever. Bar none. Thank you for all that you do.

Just a warning before you or anyone else attempts to “purchase” the film (and I put “purchase” in quotes not only because you can’t own patterns – but because his own website will only let you “stream” it. And that’s bad enough as it – but it gets worse – as we all know that websites don’t stay active, online, and/or functional forever.

Which is incredibly ironic, considering the following two completely contradictory statements from the film’s website.

The “Buy The Film” page says the following:

“Get lifetime streaming access to the film to watch anytime.”

Then the “Terms of Service” page says the following:

“DREW MEDIA reserves the right to discontinue any aspect of the Website at any time.”

Have fun with your completely inaccessible, DRM-ridden deadware!

But that’s secondary to an even bigger problem with Larken & Co. and their film.

Their asinine “Terms of Service” – which they consider to be an “agreement” – literally has you “consent” to having yourself and all of your sensitive personal information be reported to the cops at their “sole discretion”. That’s right – the alleged voluntaryist – is claiming that by even merely visiting his website, you (along with all of your sensitive personal information that you must give in order to see the film) somehow “agree” to be snitched on to the state and their enforcers.

It’s basically a click-wrap – or even worse, a visit-wrap – “contract” with Larken to be reported to the state. Completely and utterly illegitimate – just like the state.

Here’s the comment I posted under one of Larken’s recent videos (though, he appears to have blocked it, which I knew he would).

My comment to Larken:

—–

“DREW MEDIA reserves the right in its sole discretion to block access or discontinue services to offenders, and to investigate and take appropriate legal action against anyone who, in DREW MEDIA’s sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities.”

“THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE WEBSITE. BY USING THE WEBSITE IN ANY MANNER, YOU AGREE TO BE BOUND BY THIS AGREEMENT.”

This is from TJP film’s official website.

In other words, by even simply visiting the website – let alone giving over your sensitive personal information (which is required to access the film) – you are agreeing that those behind the TJP film (i.e. Larken and others) can hand over all of the sensitive personal information they have about you and report you to the cops. And this reporting you to the state can be done whenever they want and for whatever reason they want (“in their SOLE DISCRETION”).

Now, obviously this “agreement” is morally null & void, as the state is a criminal organization – and doesn’t even have the right to exist. Therefore, any “agreement” involving it is inherently illegitimate.

But, as a matter of practical bodily safety, it’s probably best not to “agree” to such an “agreement”, even though it’s completely illegitimate to begin with.

It’s like if I was your neighbour and had a section on my website – a website that required you to give me your sensitive personal information in order to access the content no less – that said:

“By viewing this website, you agree that I, in my sole discretion, can give all of your sensitive personal information to and report you to the gang down the street that kidnaps people in order to hold them hostage and torture them in their basement.”

In fact, it’s actually way worse, since you actually have a decent chance of defending yourself against and/or escaping from this neighbourhood gang. Not so with the gang that calls itself the state.

This threatening to snitch you to the state and its enforcers is all incredibly ironic given the alleged voluntaryist nature of the film’s creators – and particularly ironic given the subject matter of the film.

Just to clarify, people can do what they want, obviously. I am simply letting people know what they are “signing up for”, so to speak.

Cheers,

Chris

—–

This open willingness to use state violence to threaten his own visitors and customers on his own website – explains his sending out of DMCA Takedown Threats. He just doesn’t care. So what if one of those people are the next Aaron Schwarz? They just need to stop being “entitled poopyheads”!

As a side note, that childish ‘mocking’ voice he does – which he does in most of his videos, not just this one – and use of terms like “poopyhead”, is as you mentioned – beyond immature. It’s not funny or clever either.

And just as a final point, I have developed, owned, and managed entire networks of sites over the past couple decades. I have written more ToS and PP than I can count.

I have never once – not once – even MENTIONED “law enforcement authorities”. And he goes way beyond just ‘mentioning’. (Not that there is such a thing as just ‘mentioning’ when it comes to the state and their enforcers.)

But he goes even way beyond that. He’s ACTIVELY THREATENING state violence against his visitors and customers if ever in his “SOLE DISCRETION” he decides he wants to. And he’s presuming your “consent” to this.

Even hardline statist webmasters that I know – which is almost all of them – will usually AT MOST do the whole “if we get a court order we have to follow it blah blah” routine. Which I’m not justifying. But what he’s threatening is 1000x worse than that. And from a supposed voluntaryist on a website promoting a film with a very particular theme. Like I said in my comment to Larken, the irony is palpable.

I don’t normally like to speculate, as ultimately it cannot be definitely proven, but the film’s website reads like a honeypot. I will personally be staying away.

Thanks again Stephan for all that you do. I and many others appreciate it more than you could know.

Cheers,

Chris

My reply:

Bingo. I don’t think this agreement is a binding contract, by the way. You can’t just say “we can modify this at any time and you agree to those changes too.” Moreover, I don’t think just b/c you visit the site it means you were aware of the new terms or that you agreed to them, or that there is any consideration. I mean just because someone announces “you are bound to this if you do X” doesn’t mean that there is an agreement. Just like when supermarkets up a sign in the parking like “cannot be liable for damage to your car.” I mean just announcing something doens’t make it so. And this is a good example of why I have argued that under libertarian contract law, at least, fine print and clickwrap etc. are not always enforceable, valid contracts. See The Libertarian View on Fine Print, Shrinkwrap, Clickwrap https://www.stephankinsella.com/2009/05/the-libertarian-view-on-fine-print-shrinkwrap-clickwrap/

***

Not that this is really relevant, but re his movie, this is from his promotional material:

To get tickets to the August 26th screening of the Jones Plantation:

• https://www.eventbrite.com/e/jones-plantation-dallas-screening-tickets-694267281127
•  To view the movie online: http://www.jonesplantationfilm.com

Here is the video discussed in the earlier podcast (KOL389 | Disenthrall, with Patrick Smith and Larken Rose: The Morality of Copyright “Piracy”),

which had to do with his earlier “poophead” comments here:

Related links:

• “Examples of Ways Content Creators Can Profit Without Intellectual Property,”
• Conversation with an author about copyright and publishing in a free society
  • Kinsella on Protecting Value and Harry Potter (Youtube) and Kinsella on Music Industry Business Model (Youtube)
• Writers Can Prosper Without Intellectual Property,

See also Francis Ford Coppola, copyfighter:

How does an aspiring artist bridge the gap between distribution and commerce?

We have to be very clever about those things. You have to remember that it’s only a few hundred years, if that much, that artists are working with money. Artists never got money. Artists had a patron, either the leader of the state or the duke of Weimar or somewhere, or the church, the pope. Or they had another job. I have another job. I make films. No one tells me what to do. But I make the money in the wine industry. You work another job and get up at five in the morning and write your script.

This idea of Metallica or some rock n’ roll singer being rich, that’s not necessarily going to happen anymore. Because, as we enter into a new age, maybe art will be free. Maybe the students are right. They should be able to download music and movies. I’m going to be shot for saying this. But who said art has to cost money? And therefore, who says artists have to make money?

In the old days, 200 years ago, if you were a composer, the only way you could make money was to travel with the orchestra and be the conductor, because then you’d be paid as a musician. There was no recording. There were no record royalties. So I would say, “Try to disconnect the idea of cinema with the idea of making a living and money.” Because there are ways around it.

1. See KOL389 | Disenthrall, with Patrick Smith and Larken Rose: The Morality of Copyright “Piracy”. [↩]
2. See “Pirating” Poopheads. [↩]
3. See KOL037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory. [↩]
4. Itself a dishonest, loaded term. See Stop calling patent and copyright “property”; stop calling copying “theft” and “piracy”. [↩]
5. See KOL164 | Obama’s Patent Reform: Improvement or Continuing Calamity?: Mises Academy (2011) and The American Invents Act and Patent Reform: The Good, the Meh, and the Ugly.   [↩]
6. See Copyright Kills “Men at Work” Flautist, Greg Ham; “Absurd Arguments for IP.” [↩]
7. See “Let’s Make Copyright Opt-OUT.” [↩]
8. KOL037 | Locke’s Big Mistake: How the Labor Theory of Property Ruined Political Theory. [↩]