Archive for April, 2011

Ten Reasons Superman Renounced his American Citizenship

In the 900th issue of Action Comics Superman renounces his American Citizenship.

Here are ten of the Man of Steel’s reasons.

David Letterman, I’m granting you rights to use this for your Top Ten … with attribution, of course.

–J. Neil Schulman

Superman
Superman

10. No more phone booths in America.

9. Smallville seized Kent Farm by eminent domain and sold the land to build a WalMart.

8. Lois Lane became Larry King’s eighth wife.

7. Clark Kent’s rent-controlled Metropolis apartment torn down to build luxury condos.

6. FDA declared Superman’s X-ray vision a medical device needing their approval to use.

5. Lana Lang released old Superboy/Lex Luthor gay sex video on Facebook.

4. EPA-funded study declared Superman the cause of global warming.

3. Donald Trump’s demands to see his long-form Kryptonian birth certificate.

2. Sick of TSA groping every time he flies.

1. Wikileaks revealed his secret identity.

Winner of the Special Jury Prize for Libertarian Ideals from the 2011 Anthem Film Festival! My comic thriller Lady Magdalene’s — a movie I wrote, produced, directed, and acted in it — is now available as a DVD on Amazon.com and for sale or rental on Amazon.com Instant Video. If you like the way I think, I think you’ll like this movie. Check it out!

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Karl Hess Club Talk: Atlas Opened


I was tapped one hour before the scheduled start time to be the replacement program at the April 18, 2011 Karl Hess Club meeting. I chose to give my presentation on the opening, this past weekend, of Atlas Shrugged: Part One. See also First Impressions of Atlas Shrugged: Part 1.

–J. Neil Schulman



Listen Now:
Karl Hess Club Talk:
Atlas Opened

One comparison of the opening weekend I wasn’t able to make with such short notice was to another film that turned out to be a box office success. Both mid-April releases, both made in the same budget range, neither one with star power driving box office, no TV or print ad campaign driving ticket sales on either movie, roughly the same number of screens and roughly the same performance per screen, both successes based on audience word-of-mouth.

My Big Fat Greek Wedding, released April 19, 2002 — exactly nine years ago today.

Here are the comparables:


My Big Fat Greek Wedding

Opening weekend:

Date                   Rank    Sites      Average      Gross
2002 Apr 19            20      108        $5,531       $597,362

USA Theatrical gross: $241,437,427  

Worldwide Theatrical gross: $356,500,000

Atlas Shrugged: Part 1

Opening Weekend

Date                   Rank      Sites      Average      Gross
2011 Apr 15            14        299        $5,639       $1,686,347

My Big Fat Greek Wedding Atlas Shrugged -- Part 1

Every box-office report on Atlas Shrugged: Part 1‘s opening weekend has been a dismissal of the opening weekend as a “train wreck.” You can hear the panic in the writers’ voices — the same dismissive tone critics have been directing at the best-selling sales figures of the novel since 1957. Let them panic now that Atlas Shrugged: Part 1 has an opening weekend twice as good as My Big Fat Greek Wedding.

I wrote my first impression review of Atlas Shrugged: Part One after seeing the midnight show Friday.

I saw Atlas Shrugged: Part 1 Monday 2:00 PM for my second time in Westwood — a weekday during business/school hours. There were 50 people watching this show, and they applauded at the end. A weekday matinee that has more people than a Friday or Saturday night screen for most studio releases.

Speaking personally, the second screening had even more of an emotional impact for me than the first time — maybe because I was no longer waiting for scenes from the novel that weren’t there but was seeing what was on the screen. It’s pure character-driven story-telling. Nobody needs to be familiar with the novel to follow the movie — and the overwhelmingly positive audience reactions on sites like Rotten Tomatoes reflect that. The responses from people responding to my review linked from my Facebook wall have been very positive.

What the critics are missing is that Atlas Shrugged will likely end up being, like My Big Fat Greek Wedding, The Passion of the Christ, The Blair Witch Project, and Napoleon Dynamite — one of those indie blockbusters that are always dismissed as “an exception” because you’re not supposed to be able to have a success without enormous production costs and massive studio P&A spending.

–J. Neil Schulman

Atlas Shrugged: Part 1
Director, Paul Johansson
Screenplay by John Aglialoro and Brian Patrick O’Toole
From the Novel by Ayn Rand
The Strike Productions / Rocky Mountain Pictures
Starring Taylor Schilling, Grant Bowler, Matthew Marsden, Michael Lerner, Graham Beckel, Rebecca Wisocky, Edi Gathegi, Jsu Garcia


My comic thriller Lady Magdalene’s — a movie I wrote, produced, directed, and acted in it — is now available as a DVD on Amazon.com and for sale or rental on Amazon.com Instant Video. If you like the way I think, I think you’ll like this movie. Check it out!

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First Impressions of Atlas Shrugged: Part 1

This will be a briefer first draft of a full review that will appear later this year in Mondo Cult Issue 3. See also Karl Hess Club Talk: Atlas Opened.

–J. Neil Schulman

Atlas Shrugged: Part 1
Director, Paul Johansson
Screenplay by John Aglialoro and Brian Patrick O’Toole
From the Novel by Ayn Rand
The Strike Productions / Rocky Mountain Pictures
Starring Taylor Schilling, Grant Bowler, Matthew Marsden, Michael Lerner, Graham Beckel, Rebecca Wisocky, Edi Gathegi, Jsu Garcia

Atlas Shrugged -- Part 1
Atlas Shrugged — Part 1

There were around thirty ticket-holders at the Torrance, CA midnight showing of Atlas Shrugged – Part 1 last night. I was not the only person in the audience who had driven from Nevada for this showing; there was also a couple from Henderson (Las Vegas adjacent). The audience bonded in lively conversations before the showing, and I discovered that many in the audience were, like me, great admirers of the novel who’d been waiting for this event for many years.

Just before the movie started I heard a soft prayer from behind me: “Please don’t suck.”

Ayn Rand was one of two libertarian novelists who inspired me to follow in their footsteps — the other being Robert A. Heinlein — and Ayn Rand would have fiercely objected to being called a libertarian. Ayn Rand objected to so much of her culture that she even developed a philosophy which she called Objectivism. That’s not what she meant by the term, but her philosophy begins with such a trenchant deconstruction of the proclaimed ideas that much of the human race lives by that my explanation for the term is at least as good as hers.

Ayn Rand did not base her life choices on what other people thought of her. This was a good decision because she spent much of her life pissing people off. Oddly the more closely they agreed with her, the more pissed off they were.

Ayn Rand refused to support the candidacy of the one elected president of her lifetime whose political ideas were closest to her own: Ronald Reagan. Her reason for not supporting Reagan was pure left-wing feminism: Reagan opposed a woman’s right to have an abortion. Yet, did Ayn Rand get any street cred from feminists for this? With exceptions notable for their rarity, no.

Ayn Rand thought the War in Vietnam was a mistake. She opposed the draft. Her individualism was so deeply taken for granted in her philosophy that one of her friends had to bug her to write about how racism was a form of collectivist evil. Her portraits of empowered women in her fiction and drama make Rand far more worthy of having her face minted on a dollar than Susan B. Anthony or Sacagawea.

Rand’s 1957 novel, Atlas Shrugged, was viciously attacked by William F. Buckley’s iconic conservative magazine, National Review. It was universally panned by liberal and left-wing critics as well. The only support for this novel came from millions of readers, and that number continues growing half a century later, at a rate so high it still outsells most novels ranked on best-seller lists.

Rand had her own philosophy of literature and drama which she termed “romantic realism,” and her style was crafted to her own standards, not those of reviewers, critics, or university English departments. Her bold style, the literary equivalent of writing in primary colors, is easily attacked as comic-bookish, and if she were a young writer today you can bet the farm she would have been a star at Comic Con.

So, when the first movie made from Atlas Shrugged hit theaters yesterday it was a no-brainer prediction that film critics would dismiss and attack the movie in terms identical to the literary condemnations of its source material.

Ignore these critics as background noise. They’re not who the movie was made for.

The odd thing about Atlas Shrugged: Part 1 is that based on its actual plot — not all the rhetorical flourishes about capitalism and working for a profit — Michael Moore should love this movie. It’s about honest working people who care about their jobs being foiled by corporate lobbyists conspiring with politicians.

In a scene you’d never see in any other movie, Railroad magnate Dagny Taggart tells a union representative who walks into her office intending to threaten her with a walk-out that all she wants the union members to have is to make their own free choices about whether to work on what’s being called a high-risk job. Boy, is that pro-greed and anti-union.

Let’s address the elephant in the room. Despite Atlas Shrugged‘s status as a super-best-seller for over fifty years, the major studios choked for half a century on making this movie. To make this movie up to studio standards would have cost as much as Avatar and there is no James Cameron in Hollywood today who could love Ayn Rand’s philosophy expressed in Atlas Shrugged enough to put themselves at odds with the rest of the movie industry.

Like a new type of steel, a new petroleum cracking process, a new railroad line in Atlas Shrugged: Part 1, the Atlas Shrugged movie itself could never be a product of business as usual. The movie could only be an indie production, and that means severe budget limitations. Atlas Shrugged: Part 1 is at the upper edge of independent movie financing — approximately $15 million — and an order of magnitude above the costs of most indie films today — which make equity investors shake in their boots if more than $1 million is being spent.

So Atlas Shrugged: Part 1 has both the merits and limitations of an indie film. It has the bold, iconic vision of an indie film that can never exist in studio green-lit productions which are made within the boundaries of cookie-cutter formulas. It therefore had to choose between spending its production funding on building sets and massive CGI, or on A-list star salaries which are often enough higher than this movie’s entire production budget.

With a star director like Steven Spielberg or James Cameron, a star writer like William Goldman, and star actors like Aaron Eckhart and Scarlett Johansson, Atlas Shrugged could have been a perfectly executed movie. That’s what’s made possible when any production roadblock can be solved by throwing gobs of money at it. You get cinematic perfection, even if it has to be re-shot or fixed in post.

That movie could never be made. The people who okay writing checks that enormous share the values of the people Ayn Rand was attacking in Atlas Shrugged. They’re the big businessmen Atlas Shrugged skewers and damns to atheist hell.

So what was possible in the real world was an indie production made without stars, without iconic talent, and which — I can tell you this from my own experience as an indie producer/director — you do the best you can on the day, then the 1st AD says to the director, “It is what it is.” The director says, “We’re done here. Call lunch.” The 1st AD shouts, “Lunch! We’re on the wrong set!”

Given these standards, Atlas Shrugged; Part 1 is as good as it gets for an indie film production from a novel that demands ten times the money it was made for. Blaming it for not being as polished as a studio film shows either ignorance of the movie business or is just a cheap way of cursing at it by people who hate its authorial viewpoint and look for new and better ways to attack it. When you hear a critic lambasting the production values of Atlas Shrugged, they’re lying. They’re attacking the production values of an ambitious indie film because they can’t attack the movie’s content without admitting their bias.

Atlas Shrugged: Part 1 is as faithful an adaptation of Ayn Rand’s half-century old novel as could survive the transition of an epic — and sometimes dated — novel to independent film. It has none of the bombast of Ayn Rand’s literary style; if anything the production look and directing style is nuanced and understated. The storytelling is necessarily economical.

There is, in the movie, a new railroad bridge made out of a new kind of steel — lighter, stronger, and cheaper than steel — and this bridge is elegantly simple.

Atlas Shrugged: Part 1 is that bridge.

If you’ve loved the novel and understand the limits of independent film, you should appreciate the film adaptation.

I love the novel and came out of the theater thinking, “This movie is Atlas Shrugged.”

Industrialist/inventor, Henry Rearden, repeatedly asks one question of a government official who wants to pay him any figure just to protect existing industry from his new product. Rearden repeatedly demands, “Is it good?”

Atlas Shrugged: Part 1 is good.

If you’re not already a fan, be prepared for something you’ve never seen in a movie before: a fundamentally honest depiction of the nature of the struggle between those who pull and those who ride free in this country … and why Ayn Rand, speaking from the grave, has shown us why both honest working for profit and true charity from the heart are destroyed by a malignant virus called “self-sacrifice.”

Atlas Shrugged: Part 1 is not a demented defense of psychopaths like Wall Street‘s Gordon Gekko or Avatar‘s Parker Selfridge, but a demand for freedom from exactly those demented psychopaths who demand that your shoulders be yoked to their plough. We who think we’re called to something higher need to shrug these thugs in business suits off.

If you don’t understand the difference between larceny and production, you need to see this movie. Ayn Rand wrote Atlas Shrugged — John Aglialoro spent fifteen-million dollars of his own money making Atlas Shrugged: Part 1 — so you can see the clear difference that these criminals will pay anything to hide.


My comic thriller Lady Magdalene’s — a movie I wrote, produced, directed, and acted in it — is now available as a DVD on Amazon.com and for sale or rental on Amazon.com Instant Video. If you like the way I think, I think you’ll like this movie. Check it out!

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My Unfinished 30-Year-Old Debate with Wendy McElroy

Three decades ago, at a libertarian meeting in Los Angeles, the program paired me with Wendy McElroy to debate the question, “Is Copyright a Natural Right?” Wendy argued against. Instead of arguing “for” as I’d agreed to I cheated by abandoning defense of copyright and instead offered my own brand-new theory of all property rights, including property rights in the products of authorship and invention.

In the thirty years since Wendy and I have both published on this topic, but in my view she has never gone beyond the original debate question by addressing my actual presentation.

A few days ago Wendy updated her first publication of her side of the debate and published it as “Contra Copyright, Again.”

Reprinted under a creative commons license, here is Wendy’s new article and my new reply.

–J. Neil Schulman

Author Wendy McElroy
Author Wendy McElroy


Contra Copyright, Again

Wendy McElroy

Retrospective

Ernest Hemingway once wrote, “If you are lucky enough to have lived in Paris as a young man, then wherever you go for the rest of your life, it stays with you, for Paris is a moveable feast.” Los Angeles in the early ’80s was like that for libertarians. It brimmed over with supper clubs, student groups, small magazines, debates and conferences. Given the concentration of high-quality scholars and activists in the area, the explosion of activity was inevitable. Although the new-born Libertarian Party was extremely active, the circles in which I ran were generally anti-political or apathetic about electoral politics. They included the cadre gathered around Robert LeFevre, a sprinkling of Objectivists (mostly admirers of Nathaniel Branden), a few Galambosians, and as many Rothbardians as I could meet. And, then, Carl Watner, George H. Smith and I established our own unique circle by creating The Voluntaryist newsletter and re-introducing the term Voluntaryist back into the libertarian mainstream. A libertarian used book store named Lysander’s Books that I co-owned became the center of Voluntaryism.

One intellectual circle in particular exerted a profound influence on the development of my thinking on intellectual property: the anarcho-capitalists who banded around Samuel Konkin III (or, as he preferred, SEK3), many of whom lived in the same apartment complex as SEK3; the complex became known as the anarcho-village. (In truth, it was SEK3 and Victor Koman rather than the entire circle that exerted the influence.)

My first exposure to the theories that constitute intellectual property came from reading Ayn Rand,[1] but I gave the matter little thought. It was not until reading Lysander Spooner that I began to analyze the issue critically. Spooner advocated a rather extreme form of ownership in ideas. He once wrote, “So absolute is an author’s right of dominion over his ideas that he may forbid their being communicated even by human voice if he so pleases.”[2] I had adopted many of Spooner’s ideas wholesale but I balked at his view of intellectual property. Although I did not then question the claim that ideas could be property, I was disturbed by how closely so much of Spooner’s advocacy came to the Galambosian view at which so many of my companions laughed derisively. Galambos famously had a nickle jar into which he would deposit a coin every time he used a word that had been “invented” by someone else and to whom (in his opinion) he owned money for its use. I thought then (and now) that such ownership claims went against the free flow of knowledge required by a thriving society … or a thriving individual, for that matter. In short, Spooner’s approach to intellectual property felt wrong.

At that same time, I was also engaged in indexing Benjamin Tucker’s 19th century periodical Liberty (1881–1908) and, eventually, I progressed into Tucker’s discussion of intellectual property in which he fundamentally disagreed with the views of his mentor, Spooner. The pre-Stirnerite Tucker considered the issue to be his only deviation from Spooner. As I read the very active debate within Liberty, I began to reduce my commitment to intellectual property, to narrow it. For example, I abandoned altogether the belief that inventions could properly be patented. My belief in copyright, however, was more persistent despite the fact that Murray Rothbard—my idol and my friend—was anti-copyright. Frankly, Murray and I never discussed that subject.

But SEK3 and I did. Many people found SEK3 to be a bit annoying in how he argued ideas. There was a persistence and casual assurance about him that irritated some but which I found charming. SEK3 was always available and “up” for gab-sessions that lasted for hours. He had an uncanny ability to find the strand of thought in your argument which could be reduced to absurdity. Some people bitterly resented this ability because they thought he was making them look foolish but it fascinated me and I found it compelling. Indeed, it had been a similar technique of arguing that had made me relinquish my belief in God at the age of sixteen. SEK3 now used the technique on me and, so, chipped away at my acceptance of copyright.[3] The last blow was dealt by the science-fiction writer and SEK3 cadre Victor Koman who asked me a pointed question at an otherwise forgettable party. Vic asked, “Do you really think you own what is in my mind?” As an anarchist who was then reading both Tucker and 19th century abolitionist tracts, one answer alone was possible: “No.” And, yet, if I claimed ownership over an arrangement of words he had read, then I was answering “yes” because that arrangement now resided in Victor’s mind. If I could compel him (as Spooner suggested) not to speak the words aloud, then I was making an ownership claim over another person’s body.

At that moment—and, granted, it took several months of consideration to reach that moment—I abandoned all belief in intellectual property.

One of SEK3’s cadre who never made the same leap was/is the science-fiction writer J. Neil Schulman. Shortly after my conversion experience, I was asked to debate J. Neil on the topic of copyright at a Westwood supper club that scrapped the dinner part of the evening in order to accommodate a longer program of debate, rebuttal, Q&A. (SEK3 may well have been the more logical choice but, as I said, he irritated some people.) The event was a rousing success in several ways. First, the large room was filled beyond capacity, with people choosing to stand for hours rather than leave. Brad (now my husband of over 20 years) attended as the representative of the Society for Libertarian Life. SLL offered 2 buttons: one pro- and one anti-copyright; as I remember, they sold out.

It was a long evening, mostly due to the fact that J. Neil went over his 20-minute time limit by about 30 minutes. Nevertheless, not a single person left and the Q&A was unusually lively. At first, I was disappointed because the questions were overwhelmingly directed toward J. Neil. But, then, I realized no one was arguing with me. Everyone was taking exception to his presentation on what he called “logorights.” At that point, I relaxed until, finally, the moderator had to cut off questions because the gathering was going beyond the time for which the room had been rented. A group of us adjourned to a Great Earth restaurant and continued the discussion.

J. Neil immediately began to write up his side of the debate and later published it.[4] I followed suit. Since I always write out my presentations, this merely required some polishing to produce “Contra Copyright” which appeared in an early issue of The Voluntaryist newsletter. A still more polished revision appears below.


Contra Copyright

Copyright—the legal claim of ownership over a particular arrangement of symbols—is a complicated issue because the property being claimed is intangible. It has no mass, no shape, no color. For the property claimed is not the specific instance of an idea, not a specific book or pamphlet, but the idea itself and all present or possible instances of its expression.

The title of a recent book on intellectual property, Who Owns What Is In Your Mind?, concretizes a commonsense objection to all intellectual property: most people would loudly proclaim that NO ONE owns what is in their minds, that this realm is sacrosanct. And, yet, if the set of ideas in your mind begins “Howard Roark laughed” do you have the right to transfer it onto paper and publish a book entitled The Fountainhead under your own name? If not, why not? To say you own what is in your mind means you have the right to use and dispose of it as you see fit. If you cannot use and dispose of it, if Ayn Rand (assuming a still-living Rand) is the only one who can use and dispose of this specific arrangement of the alphabet, then she owns that sentence within your mind. And if she owns what is in your mind, you have violated her rights in writing or speaking it because you do not have permission to use her property.

I advocate a form of copyright—free market copyright. I view copyright as a useful social convention to be maintained and enforced through contract and other market (voluntary) mechanisms. This is in contradistinction to those who believe copyright can be derived from natural rights; in other words, ideas or patterns are property and their exclusive ownership does not require a contract anymore than preventing a man from stealing your wallet requires a prior contract.

Basically, the debate over copyright—or, more generally, intellectual property—comes down to two questions: What is property? What are the essential characteristics which make something ownable?: and, What is an idea?

Before going on to a discussion of theory, however. I want to address two implications that often lurk beneath criticism of free market copyright.

First: It is said that the marketplace cannot handle intellectual property issues. Those who contend that ten different people would publish Hamlet under their own names and, so, create cut-throated chaos, are using a form of the “market failure” argument which has been applied to everything from medical care to defense. Similarly, it is claimed, the market cannot regulate the publishing industry. The opposite is true. When I co-owned a used book store—a business which is virtually unregulated—I was astonished at how effectively the free market spontaneously set standards. It was not uncommon for stores in L.A. to know the specifics of a stolen book or a forged autograph the day after it had been spotted in New York.

Second, it is said that free market copyright would strip authors of valid protection or credit for their own work. When Benjamin Tucker—a 19th century libertarian opponent of copyright—was accused of stripping authors of protection, he replied: “It must not be inferred that I wish to deprive the authors of reasonable rewards for their labor. On the contrary, I wish to help them secure such, and I believe that there are Anarchistic methods of doing so.”[5] Equally, those who oppose state-enforced copyright are not seeking to victim authors but to use free market mechanisms to offer whatever protection is just.

Returning to theory … The issue of copyright hinges on the question: can ideas be property? Which leads to another question: what are the characteristics of property?

Tucker addressed this issue in fundamental terms. He asked why the concept of property had originated in the first place. If ideas are viewed as problem-solving devices, as answers to questions, then what about the nature of reality and the nature of man gave rise to the idea of property? In a brilliant analysis, Tucker concluded that property arose as a means of solving conflicts caused by scarcity. Since all goods are scarce, there is competition for their use. Since the same chair cannot be used in the same manner at the same time by two individuals, it was necessary to determine who should use the chair. Property resolved this problem. The owner of the chair determined its use. “If it were possible,” wrote Tucker,

and if it had always been possible, for an unlimited number of individuals to use to an unlimited extent and in an unlimited number of places the same concrete things at the same time, there would never have been any such thing as the institution of property.[6]

Yet ideas defy scarcity. Since the same idea or pattern can be used by an unlimited number to an unlimited extent in unlimited locations, Tucker concluded that copyright ran counter to the very purpose of property itself, which was to ascertain the correct allocation of a scarce good.

Copyright contradicts not merely the purpose of property but also the essential characteristics of property, one such characteristic being transferability. Property has to be alienable: you must be able to dispossess yourself of it. The individualist anarchist, James L. Walker, commented, “The giver or seller parts with it [meaning property] in conveying it. This characteristic distinguishes property from skill and information.”[7] When you buy the skill and information of a doctor who gives you a check up, for example, you don’t acquire a form of title, as you would acquire title to a car from a car dealer, because the doctor is unable to alienate the information from himself. He cannot transfer it to you: he can only share it.

It was this point, transferability, that lead Thomas Jefferson to reject ideas as property. Jefferson drew an analogy between ideas and candles. Just as a man could light his taper from a candle without diminishing the original flame, so too could he acquire an idea without diminishing the original one. Jefferson wrote:

If nature has made any one thing less susceptible than all others of exclusive property, it is … an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.[8]

When a poet reads or sells poetry without a contract, when he throws his ideas and patterns into the public realm, the listeners receive information, not property. For the publicized poems to be property they must be transferable, alienable. Yet, as the egoist J.B. Robinson said, “What is an idea? Is it made of wood, or iron, or stone? The idea is nothing objective, that is to say, the idea is not part of the product: it is part of the producer.”[9]

In other words, if the poet claims ownership to the pattern of words in his listener’s head, this reduces to a form of slavery since the ownership claim is over an aspect of the listener’s body: namely, his mind, his knowledge. Such a claim is comparable to saying you own the blood in someone else’s arm. Certainly, you could buy the blood—perhaps for a transfusion—but such a purchase would be contractual and not based on natural right.

Everyone owns the ideas within their own minds. If there is only one instance of a specific idea or arrangement of ideas—e.g. a writer who locks his novel in a desk drawer—then the idea is protected by natural right, by the author’s to self-ownership. He has right to live in peace and silence and maintain a locked desk; no one can properly break into his desk and steal his property. When an author chooses to publicize his ideas without securing protection based on a listener’s or reader’s consent, however, he loses the protection afforded by his self-ownership. He loses what Tucker called ‘“the right of inviolability of person.”

To restate this: I own my ideas because they are in my mind and you can get at them only through my consent or through using force. My ideas are like stacks of money locked inside a vault which you cannot acquire without breaking in and stealing. But, if I throw the vault open and scatter my money on the wind, the people who pick it up off the street are no more thieves than the people who pick up and use the words I throw into the public realm. And, yet, the poet might respond, no one is forced to absorb the poetry floating through the culture. They do so of their own free will. Therefore, says the poet, there is an implied contract or obligation on the part of the listener not to use it without permission.

Victor Yarros, Tucker’s main opponent on copyright in the 19th Century movement argued along these lines. He claimed, “All Mr. Tucker has the right to demand is that these things shall not be brought to his own private house and placed before his eyes.”[10] Tucker responded,

Some man comes along and parades in the streets and we are told that, in consequence of this act on his part, we must either give up our liberty to walk the streets or else our liberty to ideas … Not so fast my dear sir! … Were you compelled to parade on the streets? And why do you ask us to protect you from the consequences?[11]

Moreover, the introduction of an implied contract between the poet and listener is a two-edged sword. To fall back on some sort of implied agreement implicitly admits that copyright is a matter of contract, not of natural law for one does not need to fall back on contract to protect natural rights. If a man steals your money, there is no need to appeal to an agreement—implied or otherwise—to justify a demand for restitution. Restitution occurs because it was your money. Only when you are dealing with those things to which you have no natural right must you appeal to contract.

Historically, copyright has been handled differently than patents. Many people accept copyrights while rejecting patents. The distinction is usually based on two points: (1) literature is considered pure, personal creation as opposed to inventions which rely on the discovery of relationships that already exist within within nature: and (2) independent creation of literature is considered to be impossible. Copyright is said to protect style or the pattern of expression rather than the ideas expressed. By contrast, most people agree that ideas themselves can be independently and even simultaneously created—for example, Walras, Jevons and Menger all separately originated the theory of marginal utility—but they do not agree that style can be independently or honestly duplicated.

The issue of duplication of style raises interesting questions. For one thing, it is not unknown for poetry, especially short poems, to closely resemble each other. Do these chance similarities constitute duplication? Do they violate copyright laws? If they don’t, what prevents me from taking Atlas Shrugged and publishing it under my name after changing one word in each sentence? This would produce a similar pattern but not a duplicate one. If copyright would prevent me from doing this, then it is aimed not only at prohibiting exact duplications but at prohibiting similarities as well. And similarities are quite within the realm of honest possibility, especially when the guidelines of what constitute similarity are vague.

Many advocates of copyright would argue that honest similarities in nature are impossible or highly improbable. But laws should be based on principle, not upon probability. Tucker wrote:

To discuss the degrees of probability is to shoot wide of the mark. Such questions as this are not to be decided by rule of thumb or by the law of chances, but in accordance with some general principle … among the things not logically impossible. I know of few nearer the limit of possibility than that I should ever desire to publish in the middle of the desert of Sahara: nevertheless, this would scarcely justify any great political power in giving someone a right to stake out a claim comprising that entire region and forbid me to set up a printing press.[12]

In short, a question of right must be determined by a general theory of rights, not the likelihood of circumstances.

In regard to the ownership of a form of expression—of what is called “style”—Tucker believed that a particular combination of words belonged to no one; the method of expressing an idea was an idea in and itself and, therefore, “not appropriable.” As long as you are not claiming ownership of a specific instance of a book, but of the abstracted style of every instance of this book, you are claiming ownership of an idea.

Examples of styles or patterns surround us everywhere. In chairs, shoes, hairstyles, gardens, clothes, wallpaper, the arrangement of furniture … patterns are everywhere. And if it is out of respect for style that arrangements of words cannot be duplicated, then for that same reason, a shoemaker cannot duplicate shoes. Women cannot duplicate hairstyles or clothes for, after all, these items express style as much as a sonnet does. Yet it is only with the sonnet, with literature that the originators clamor for special, legal protection. If copyright were not the norm, if all of us had not grown up with it, we might consider it as absurd as a house owner claiming special, legal protection of the pattern of colors with which he had painted his home or the arrangement of rocks in his garden.

Indeed, to be consistent, the copyright advocate has to reduce his position to similar absurdity. For example, not merely writing but all of speech is a personal form of expression; speech is an arrangement of the alphabet in much the same manner as writing is. Therefore, by the advocate’s own standards, a man should be entitled to legal protection for every sentence he utters so that no one thereafter can utter it without his consent. Lysander Spooner, a defender of copyright much quoted by libertarians, seemed to consider this possibility when he wrote, “So absolute is an author’s right of dominion over his ideas that he may forbid their being communicated even by human voice if he so pleases.”[13]

Think about that statement; it is frightening in its implications for the free flow of ideas and knowledge upon which human progress depends. I do not believe state-enforced copyright protects the just profits of an author. I agree with George Bernard Shaw who contended “copyright is the cry of men who are not satisfied with being paid for their work once but insist upon being paid twice, thrice and a dozen times over.”[14] I believe free market copyright would temper the immense profits that can be made from writing, and that they should be tempered because such profits do not reflect just rewards so much as they do a state monopoly.

Moreover, I do not believe that the absence of state enforcement would destroy literature Most of the world’s great authors—Shakespeare for example—wrote without copyright. As for the possible destruction of the publishing industry, Tucker—a publisher—explained:

Why did two competing editions of the Kreutzer Sonata [a book he issued —WM] appear on the market before mine had had the field two months? Simply because money was pouring into my pockets with a rapiditv that nearly took my breath away. And after my rivals took the field if poured in faster than ever.[15]

As a writer I am eager to maximize my profits. I am not so eager. however, that I would claim ownership to what is in your mind. My attitude toward writers and lecturers who throw their products into the streets and, yet, claim legal protection as they do so is the same as that once uttered by Tucker: “You want your invention to yourself? Then keep it to yourself.”[16]

The energy being expended in debating intellectual property would be better used in exploring methods by which the free market could protect the just rewards of intellectual products.

*Wendy McElroy (wendy@wendymcelroy.com) is author of several books and maintains two active websites: wendymcelroy.com and ifeminists.com. This article contains a new introduction and a revised version of McElroy’s “Contra Copyright,” The Voluntaryist 3, no. 4 (June 1985), http://www.voluntaryist.com/toc.html.

Cite this article as: Wendy McElroy, “Contra Copyright, Again,” Libertarian Papers 3, 12 (2011). Online at: libertarianpapers.org. This article is subject to a Creative Commons Attribution 3.0 License (creativecommons.org/licenses). Published by the Ludwig von Mises Institute.

[1]See Ayn Rand, “Patents and Copyrights,” in Capitalism: The Unknown Ideal (1970).

[2]Lysander Spooner, The Law of Intellectual Property; Or an Essay on the Right of Authors and Inventors to a Perpetual Property in their Ideas (1855), p. 125, http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2243&Itemid=27.

[3]SEK3’s views on IP are expressed in Samuel Edward Konkin III, “Copywrongs,” The Voluntaryist (July 1986), http://www.lewrockwell.com/orig11/konkin1.1.1.html.

[4]See J. Neil Schulman, “Informational Property—Logorights,” Journal of Social and Biological Structures, 13 no. 2 (1990), pp. 93–117,

http://jneilschulman.rationalreview.com/2009/12/classic-j-neil-informational-property-logorights/.

[5]For further discussion of Tucker’s views on property and IP, see my article “Copyright and Patent in Benjamin Tucker’s Periodical,” Mises Daily (July 28, 2010), originally published in Wendy McElroy, ed., The Debates of Liberty: An Overview of Individualist Anarchism, 1881–1908 (Lexington, 2003).

[6]“More on Copyright,” Liberty 7 (December 27, 1890): 5.

[7]“Copyright.–IV,” Liberty 8 (May 30, 1891): 3.

[8]Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html.

[9]“A New Argument Against Copyright,” Liberty 8 (May 16, 1891): 5.

[10]“The Right to Authorship,” Liberty 7 (February 21, 1891): 4.

[11]Commentary on “The Right to Authorship,” Liberty 7 (February 21, 1891): 5.

[12]Commentary on Yarros, “More About Copyright,” Liberty7 (Dec 27, 1890): 4, at 5.

[13] Spooner, The Law of Intellectual Property, p. 125.

[14]Quoted in Clarence Lee Swartz, What is Mutualism? (1927), http://www.panarchy.org/swartz/mutualism.5.html.

[15]Commentary on “The Reward of Authors,” Liberty 7 (January 10, 1891): 6.

[16]“The Knot-Hole in the Fence,” Liberty 7 (April 18, 1891): 6.



J. Neil Schulman Reply

I could not blame Wendy McElroy for not being prepared to debate the new theory of property rights I first presented in debate with her, but she’s now had thirty years to debate my theory and she has still never done it. For in that presentation I undercut all the assumptions she was prepared to debate and in effect left her to debate the straw man she brought into the room with her. She is still debating that straw man. She has never debated me.

Wendy was prepared to debate statist copyrights and patents. Wendy was prepared to refute the ownership of ideas. Wendy was prepared to argue that the intangible could not be owned. Wendy was prepared to argue that no one could own what existed only inside someone else’s head.

I rejected all of those assumptions in the first five minutes of my presentation. I rejected both the terms “copyright” and “intellectual property” in the first fifteen minutes.

Maybe Wendy should have taken some notes and actually tried to answer my presentation. Instead, she went on with her pre-prepared speech and left it to the audience to listen and debate with me.

One of the audience members — Robert LeFevre — lent his endorsement to my presentation when I soon published it as a pamphlet. Unfortunately after thirty years LeFevre’s actual words are in a storage locker in a box somewhere, and it will be a while before I can recover them.

What Wendy has never in thirty years addressed is that my logorights theory is not a theory of intellectual property but a new natural-rights theory of property deriving from the concept of “material identity.” Previous theories of property made a distinction between real property — and Locke wrote about ownership arising from a man mixing his labor with land to homestead it — and everything else, which was regarded as ephemeral if not completely intangible. Nineteenth century libertarians divided along a false dichotomy because what property actually was and how it came into being had never been rigorously defined.

That’s the task I took on in my debate with Wendy and in the articles that soon followed.

My argument should not be hard to understand for someone like Wendy who has a familiarity with Ayn Rand’s Aristotelian-based epistemology and ontology.

If an author writes an original work that work is not the materials upon which the work is printed. This might have been a hard concept to understand in the age before computers — although I think Morse and Tesla could easily have grasped it — but an author created something which is objectively real and can be apprehended, as can any real thing, by observing its component properties.

When I completed writing my first novel Alongside Night it was not something intangible existing only in my mind. The process of writing was making something that was objectively real and capable of being seen by others than myself. The whole nature and purpose of authorship is other-directed.

The first medium that carried the novel was typing paper; but over the years this real and new thing I made has existed not just as typescript but also in bound books, on computer disks, as information objects transmitted over media both wired and wireless; and soon to be both an audio dramatization from Sound of Liberty/ARTC and a movie produced and directed by me, from my own screenplay adaptation.

None of these things are ideas. None of these things owe their existence to what is in someone else’s head. All of these things are reflections and usages of a thing I made and the component properties and uses that can be extracted from the whole.

I have used several different terms to explain this over the past thirty years since my first presentation. I have called these things a “logos” and the property rights in them logorights. I have used the terms “informational property” and referred to the “material identity” which makes anything ownable as property.

I specifically addressed the necessity of property, to be an economic good, to be scarce, and explained how a property, to be ownable, does not need to be limited in all dimensions (land ownership, for example, does not own the unlimited sky above it), but only in some dimensions.

I’ve explained how the limits of what a specific logos or information is by the Law of Identity makes it a scarce item of commerce, no matter that there be a single copy or a trillion. The copies being identical to the original, the number of existents vary but the entity — thing — itself remains unique and therefore scarce because copying does not change its defining identity.

As I recently posted elsewhere:

How many copies of Atlas Shrugged exist? Millions. How many Atlas Shrugged‘s are there? One. Atlas Shrugged is just as scarce a commodity as the day Ayn Rand finished the manuscript. It was one Atlas Shrugged then and one Atlas Shrugged now. Atlas Shrugged is a unique thing. Only the number of carriers of that singular and scarce object varies.

I’ve also explained how separating out rights for different uses of that property — and licensing them — is no different than leasing a house or apartment, or dividing use of a space by time (as in a timeshare), or selling a ride in a car as opposed to the car itself — and that the assumption that, in allowing others to observe and make use of a created work of distinct material identity the owner abandons his ownership of the thing, necessarily must annihilate the concept of private property entirely.

Most recently, in an attempt to leave in my rearview mirror the straw-man debates about owning ideas, intangibles, and what is in other people’s minds, I have devised the term Media Carried Property (MCP) as a replacement for the misleading term IP — even when by that abbreviation I meant not Intellectual Property but Informational Property.

MCP says what I mean better and without as much baggage.

Wendy has never addressed any of this. Perhaps she believes one has to be long dead before one’s ideas should be addressed.

Or maybe Victor Koman was just more dashing than I was.

References:

The Libertarian Case for IP

MCP

My comments in reply to Stephan Kinsella’s
The Origins of Libertarian IP Abolitionism


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MCP


In a discussion on the Mises Economics Blog I’ve decided the term “Media Carried Property” (“MCP”) is far more self-explanatory of the concept I’ve been advocating as logorights for three decades than any use of the abbreviation “IP” — either as Intellectual Property or even my own previous usage, Informational Property.

The implications of this debate inevitably extend not to the narrow discussion of “IP” but to all property. This will happen because at some point technology will more than likely enable Star Trek-like transporters in which matter is disassembled then reassembled elsewhere and “material identity” will be the defining feature of all property; or because human beings will enter into virtual realities where, once again, no property has a physical presence other than “material identity.”

The Transporter

In fact, any truly advanced technological civilization, if it has property rights at all, will regard an original “sample” as the only property worth having, since everything else will be replicable.

So, now’s the time to stake out the defining propertarian position for the rest of economic destiny. If the Stephan Kinsellas do manage to wipe out what they call IP and I’ll now be calling MCP, the future will eventually be one with no property rights at all.

References:

The Libertarian Case for IP

Mises Economics Blog: The Origins of Libertarian IP Abolitionism


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