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The L. Neil Smith – FreeTalkLive Copyright Dispute

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I have long been a fan of libertarian sci-fi author L. Neil Smith. I’ve read perhaps eight or ten of his novels, my favorites being The Probability Broach and The Gallatin Divergence, both of which I highly recommend. The only one of his I disliked–and I disliked it a lot–was Hope, co-authored with Aaron Zellman. (As I noted in my LRC article “The Greatest Libertarian Books,” other favorites include Heinlein’s The Moon is a Harsh Mistress, J. Neil Schulman’s Alongside Night, and quasi-libertarian John C. Wright’s The Golden Age trilogy.) I’ve also praised Smith’s great speech “Unanimous Consent and the Utopian Vision, or, I Dreamed I Was a Signatory In My Maidenform Bra,” especially for its interesting conclusion about just how much richer we would be in a free society (his answer: at least eight times).

I’ve long been aware that Schulman was pro-IP–he is the author of the “logorights” theory of IP, which I have criticized at length elsewhere (see my comments to Schulman in this post; also On J. Neil Schulman’s Logorights; Reply to Schulman on the State, IP, and Carson; IP: The Objectivists Strike Back!). And Wright is too–he blogged about it on his LiveJournal account a while back, though I can’t find it now–he is for copyright, because he is an author of novels. I had no idea Neil Smith was also pro-IP, but apparently he is, as a minor brouhaha yesterday revealed. Apparently libertarian sci-fi authors, even anarchists like Schulman and Smith, go astray on IP–perhaps, in part, due to the influence of another libertarian novelist, Ayn Rand.

Back in 1985 or so, Smith started circulating “A New Covenant,” a declaration of libertarian principles excerpted from his The Gallatin Divergence novel. Libertarians were encouraged to copy, sign, and mail it in with a $2 “processing and archiving” fee. I myself did this back in 1991. Recently, a group called The Shire Society, which apparently is associated with the heroic, New Hampshire-based FreeTalkLive radio show (hosted by Ian Freeman and Mark Edge) and the NH-based Free State Project, was formed, as noted here: “The Shire Society is a voluntary association of sovereign individuals committed to the ideals peace and liberty. The Shire Society Declaration is intended to announce their non violent withdrawal of consent from the coercive state society.”

The Shire Society Declaration was based on Smith’s New Covenant, but was altered–improved, in the minds of the advocates of the Shire Society. Smith got wind of this and was upset, since he viewed it as plagiarism, theft, and unauthorized modification of his “property.” This led to an escalating exchange of emails between him and Ian Freeman, and others, as can be seen on this thread. After Smith called Freeman “socialist scum,” demanded restitution, cc’d his lawyer, and threatened to take it public, Freeman announced he would take it live to his national radio program that night–last night (July 13, 2010). Which he did. The MP3 file for that night’s show is here (local copy); Ian starts discussing this issue at 1:44:17, until the end of the show, about an hour later. I was asked to call in, and did so, participating from 2:10:15 for a good 15 or so minutes. The thread linked earlier and the podcast discussion is very good and interesting. As I noted, I’m a huge admirer of Smith and what he’s done for liberty. And I can understand him being angry if someone stole from him. But that’s the issue, for libertarians: was he stolen from? Asserting he was stolen from presupposes he has a legitimate property right in a pattern of words; i.e., it presupposes IP is valid. For the libertarian, that is the question itself: is IP legitimate? To assume there was theft is thus question-beggging.

To his credit, Smith has run anti-IP pieces on his site previously; but according to some of Smith’s emails posted by people in the comments in the FTL thread, he intends to write a defense of IP rights on his site, The Libertarian Enterprise, this weekend. I will be interested to see what Smith comes up with, but I can’t see how he can justify IP. First, it requires legislation and the state, and he’s an anarchist so can’t support that. Second, granting rights in nonscarce things always invades rights in already-owned scarce resources. Back in 1991 when I signed Smith’s Covenant, I was not yet anti-IP. If I were, I might have realized the words “we shall henceforward recognize each individual to be the exclusive Proprietor of his or her own Existence and of all products of that Existence” was a Rand-inspired “Creationist” view of property rights that does in fact imply IP rights. And although the framers of the Shire Declaration meant to improve on the New Covenant, they left in the language “we shall henceforward recognize each individual to be the exclusive Proprietor of his or her own Existence and of all products of that Existence.” In my view, the Shire Society Declaration should be further modified to excise or change this language: we are not “proprietors” of all “products” of our “existence”; this is vague, loose, quasi-Galambosian-Randian terminology that is subject to equivocation. Rather, we have property rights in our bodies and in all scarce resources homesteaded by us or ancestors in title, unless and until these rights are altered by an act of aggression or some consensual title transfer. (For more, see my “What Libertarianism Is“; aslo links in this post: Objectivists: “All Property is Intellectual Property”, including The Intellectual Property Quagmire, or, The Perils of Libertarian Creationism, Rand on IP, Owning “Values”, and “Rearrangement Rights”; Libertarian Creationism; Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors; Inventors are Like Unto …GODS….; Intellectual Products and the Right to Private Property; Owning Thoughts and Labor; Elaborations on Randian IP; and Objectivists on IP.)

I’d like to reiterate my respect, admiration, and gratitude for Smith and his heroic libertarian activism and wonderful novels. But I disagree with him–strongly–on IP. We who oppose IP are not collectivists or socialists. In fact it is precisely because of our reverence for property rights and justice, and our opposition to statism and socialism of all forms, that we oppose IP, as explained in my articles “Intellectual Property and Libertarianism” and “The Case Against IP: A Concise Guide.”

Update: FreeTalkLive had further discussion of this on their July 14 show, from about 44:00 on.

Another update: See Guest Comic by The Muslim Agorist: The Revolution will be Plagiarised

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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