Rights Violations in the Name of Private Property

Business, IP Law, Technology
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[This article is based on a speech I gave at the University of Alabama, Birmingham, December 5, 2011.]

You know that anti-piracy video you sometimes see at the beginning of movies? It explains how you wouldn’t steal a handbag, so neither should you steal a song or movie by an illegal download. Well, it turns out that the guy who wrote the music for that short clip, Melchoir Rietveldt, says that his music is being used illegally. It had been licensed to play at one film festival, not replayed a million times in DVDs distributed all over the world. He is demanding millions in a settlement fee from BREIN, the anti-piracy organization that produced the thing.

Interesting isn’t it? When you have hypocrisy that blatant, criminality this rampant, practices called piracy this pervasive – it reminds you of the interwar Prohibition years – you have to ask yourself if there is something fundamentally wrong with the law and the principles that underlie the law. Yes, people should keep to their contracts. But that’s not what we are talking about here; this case is being treated not as a contract violation but a copyright violation, which is something different. We are dealing with a more fundamental issue. Is it really stealing to reproduce an idea, an image, or an idea? Is it really contrary to morality to copy an idea?

The verdict here is crucially important because ever more of the state’s active intervention against liberty and real property is taking place in the name of intellectual property enforcement. The legislation SOPA could effectively end Internet freedom in the name of enforcing property rights.

If people who believe in liberty do not get this correct – and it no longer possible to stand on the sidelines – we will find ourselves siding with the state, the courts, the thugs, and even the international enforcement arm of the military industrial complex, all in the name of property rights. And that is a very dangerous thing at this point in history, since IP enforcement has become one of the greatest threats to liberty that we face today.

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Semantics and IP Antics

Education, IP Law, Libertarian Theory
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One of the reasons why IP-abolitionists oppose “intellectual property” is because IP monopolies in effect boil down to a restriction on existent ownership rights. To this charge, a common retort heard even from libertarians, is that all property rights are not absolute (i.e. “you can’t shoot your gun wherever you choose”, “the right to swing your fist ends by my nose”, etc.) and so too IP laws can morally and thus justly restrict people from using certain configurations or arrangements of their already owned property.

It occurred to me that this is a mere semantic quibble. If we substitute the word “to” for the word “with”, we no longer have an equivalence between IP and those examples. For argument’s sake, we can even agree with the gist of those examples and suppose that an owner may not always have the right to do certain actions with his property but this wouldn’t contradict a fundamental right to do certain actions to his property, which is more precisely what anti-IP arguers hold.
This retort focuses solely on the restrictionist view in that it’s [morally] just to have laws that restrict existent property rights. But those examples are a flawed comparison to begin with; we would never hold that property rights to a gun would allow the violation of another persons’ property.
This is because ownership isn’t a bundle of certain permissible actions or rights, but rather the totality of  a “negative” quality– a restriction upon others from violating the owner’s right to control. In any given context, violations of property rights is what determines the impermissibility for any given action, not a deficiency in the ownership rights of the hypothetical gun or swinging-fist.

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LSU Football, Trademark, and “Honey Badger”

IP Law, Mercantilism, Protectionism
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Honey BadgerI received three very useful and taxpayer-subsidized degrees from LSU. But I’ve never given them a dime, and never will (I do donate to my private high school, Baton Rouge’s Catholic High School). Up till now, there were two reasons for this. First, it’s a state university. I think they should be abolished. Second, like most modern universities, it is infected with, and propagandizes its students with, a bunch of horrible socialist, leftist, and statist ideas (luckily my two engineering degrees were largely immune from this, since you don’t have time for normative nonsense when trying to figure out electromagnetic fields, digital logic, and semiconductor physics; and even my law studies were mostly practical).

But now I have a third reason. I’m a big LSU football fan, and of course and am enjoying the current season, with LSU at 13-0 and slated to play Alabama (second only to Michigan on the annoying fans index) for the national championship next month. One of LSU’s most impressive players this year is sophomore cornerback Tyrann Matthieu, truly an amazing athlete, who has garnered the nickname “Honey Badger” “for his tenacious ability to play extremely tough football against much larger opponents, as well as his knack for making big plays”. As the Wikipedia entry for Honey Badger notes, “The nickname became popular during the 2011 college football season, when it was often referenced in the national media. ‘He takes what he wants’ said CBS sportscaster Verne Lundquist of Mathieu.” Other expressions used for him are “Honey Badger don’t care”.

Well, according to the “LSU Compliance,” Honey Badger Does Care–if you use “honey badger” without LSU’s permission and paying them an appropriate fee! This claim is surely false, as any permission is granted by, and any fees paid go to, LSU, not Mathieu. Whose nickname is it, anyway?

As the entry specifies:

The LSU Compliance Office has issued several Cease & Desist notifications for products including the name, likeness and/or image of LSU football student-athlete Tyrann Mathieu.

Please be advised that the sale of any products and/or advertisements including the name, likeness or image of this individual or any other LSU student-athlete is in violation of NCAA Bylaw 12.5.2.2 and could have a negative impact on the involved student-athlete’s eligibility.

Apparel or paraphernalia including the phrase “Honey Badger” accompanied by the number 7 or the individual’s name or any other variation thereof (e.g., TM7, TM, HB7, etc.) is prohibited. Because it is a recognizable nickname, “Honey Badger” is considered a likeness of Tyrann Mathieu under NCAA regulations.

?Examples of Impermissible Products/Advertisements ?
The word “Honey Bader” or an image of a Honey Badger accompanied by?: The number 7?
? TM7 (or any other likeness)
? Name of individual
? Image of individual?
? ?LSU

LSU then “helpfully” provides examples of “impermissible items” for which they have issued “Cease & Desist notifications”–just to let you know they mean business.

Truly disgusting, but par for the course for our mercantilist, protectionist, IP-centric form of corporatism in which the powerful state helps big corporations (and socialist state universities) bully individuals and small competitors with pseudo-“property rights” like patent, trademark, and copyright.

I’m sure Alabama pulls the same stunts. Otherwise I might have to hold my nose and pull for them on Jan. 9.

(h/t Skip Oliva)

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Creation and Labor as Sources of Property Rights and the Danger of Metaphors

(Austrian) Economics, IP Law, Libertarian Theory
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Canadian libertarian Michael McConkey has an interesting fictional exchange between himself and Socrates up at My Dinner with Socrates:

The other day I met this sandal-wearing, hipster dude who thought he had all the answers (and questions), but I set him straight when it came to the morality of the state. I thought you might enjoy reading a transcript of our dinner conversation.

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Here is an edited version of a note I sent him about this piece.

Not bad, but I think you go astray by saying creation is a source of ownership. It’s not. This is the mistake people make that leads them to support intellectual property. In fact the only source of ownership is homesteading or original appropriation: finding some unowned thing and appropriating it. And, this implies that there is a second way to own something: by contractual transfer of title from a previous owner. That is it.

It is true that you can create wealth or value by production. But this just means to transform (with creativity and labor) something you already own. To produce you have to already own the thing you rearrange.

Creation is a source of wealth. Not of ownership or property rights.

Likewise, your comment here:

We don’t just use up our life – perhaps we do that when we go for a hike, say – but property is an enduring embodiment of our life. The tomato I grow in my back yard, the book I write, the money I am paid by an employer for the productive work I provide, are all embodiments of my life. My finite time, energy and attention are literally embodied in these things and stuff: tomatoes, books, money, etc.

is imprecise and overly metaphorical. The use of “literally” is wrong. I know what you are getting at but this is not rigorous argument. If I steal from you the loaf of bread you have baked, it is wrong becuase it is your property (or more precisely, you have a property right in the loaf of bread). It’s only a metaphorical way of looking at it to say that I have stolen your “labor”. It’s just literally not true. You don’t own your labor; it is not “in” the bread. Labor is just a type of action. You don’t own your labor any more than you own your actions or your memories or your tendency to procrastinate.

For more on the creation stuff, see my Against Intellectual Property; also Locke on IP; Mises, Rothbard, and Rand on Creation, Production, and “Rearranging”; Libertarian Creationism; Rand on IP, Owning “Values”, and “Rearrangement Rights”; Locke, Smith, Marx and the Labor Theory of Value; this comment to “Trademark and Fraud”; Elaborations on Randian IP; Objectivists on IP.

For the danger of misuse of metaphors, see Thoughts on Intellectual Property, Scarcity, Labor-ownership, Metaphors, and Lockean Homesteading and On the Danger of Metaphors in Scientific Discourse.

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Carrier IQ’s attempt to employ copyright censorship backfires

Business, IP Law, Podcasts, Technology
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As discussed in the Techcrunch post Android Researcher Hit With C&D After Dissecting Monitoring Software, Android security researcher Trevor Eckhart posted about the mobile tracking software from a company called Carrier IQ. As explained in the Techcrunch post:

Carrier IQ pitches themselves as the “leading provider of mobile service intelligence solutions,” and provides their services to a number of players in the mobile space. The company’s main U.S. carrier partner is Sprint, and Eckhart claims that their tracking software appears on Android devices from HTC and Samsung among others.

According to Eckhart’s research, Carrier IQ is capable of monitoring everything from where the phone is to what apps are installed, and even which keys are being pressed. Carrier IQ says that the information is collected to give carriers insight into how the mobile use experience can be improved. It sounds like a noble enough goal, except Eckhart found that the software could run without the user’s knowledge or consent as was the case with the HTC phones he tested.

Carrier IQ’s general counsel then fired off a vicious cease-and-desist letter [PDF] against Eckhart, “claiming that he committed copyright infringement by reproducing some of the company’s training materials in his post and that he made ‘false allegations’ about the nature of their software.” In other words, Carrier IQ was trying to squelch criticism of it by using copyright law to censor its critic. These tactics are one reason I not only despise copyright, but that I have begun to really detest what the legal profession has become: a bunch of arrogant bullies. The C&D letter is outrageous: it gave Eckhart two days to commit to all kinds of groveling, making a public apology, replacing his original blog post with one written by Carrier IQ, and so on. While threatening him with tens of thousands of dollars of damages, if not more, with some dubious claims, as discussed in a recent episode of This Week in Law. For example, according to some of the legal pundits on TWiL, the statutory damages and attorneys’ fees threatened are available only for a registered copyright work, and the material in question did not appear to have been registered. Further, Ekhard would probably have a fair use defense (as the Electronic Frontier Foundation (EFF) argues as well).

In any case, after its threats was noticed and blogged and tweeted about on the Internet, and after Eckhart bravely contacted the EFF for help instead of backing down, Carrier IQ realized what a PR disaster its threats had created, and their CEO retracted their C&D and publicly apologized to the developer. (See Techcrunch’s post Carrier IQ Retracts Their C&D, Apologizes To The Android Researcher They Hassled.) From the release:

As, of today, we are withdrawing our cease and desist letter to Mr. Trevor Eckhart. We have reached out to Mr. Eckhart and the Electronic Frontier Foundation (EFF) to apologize. Our action was misguided and we are deeply sorry for any concern or trouble that our letter may have caused Mr. Eckhart. We sincerely appreciate and respect EFF’s work on his behalf, and share their commitment to protecting free speech in a rapidly changing technological world.

The full text of the release is below. The EFF was truly heroic here (see Eckhart’s post Why I love the EFF; and EFF’s post Carrier IQ Tries to Censor Research With Baseless Legal Threat).

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