Thursday, January 22, 2009

Mises Institute: Do As They Say, Not As They Do?

I'm a bit confused by the Mises Institute stand on copyrights and book publishing.

Lew Rockwell has given the top billing at LRC this morning to a screed, Authors: Beware of Copyright, by Jeffrey Tucker.

In the piece, Tucker warns of evil publishers who take advantage of copyright to lockdown authors. He writes:

Your creation, which copyright is designed to protect, is now the possession of someone else...

Yes, it is done by contract – contract backed by the power of the state...

So I say to all authors: please look at your contracts. Don't sign your life away. Publish on the condition of Creative Commons. Claim your rights back as a creator and an author.
Interesting stand by Tucker since according to Gene Callahan (see the first comment to this link), this is what the Mises Institute has done to him, in relation to his book Economics for Real People:

...they do promote it still, as well they might -- every penny of sales goes to LVMI, not to me. (And I'm not saying they're stealing from me or anything -- I voluntarily signed a contract calling for one up front payment for writing the book.)
Perhaps now that Tucker has supposedly seen the light of the evils of copyright, he will give Callahan the right to print his own edition of Economics for Real People?

But this double standard on copyright seems to be a consistent stand by the Kinsella-Tucker wing at LVMI. Stephan Kinsella, the creator of the "intellectual creations aren't property" stand, recently wrote:

Often we opponents of socialistic, legislatively-created, utilitarian-based,property-redistributing, artificial, arbitrary, inconsistent, irrational, innovation-hampering, monopolistic, anti-competitive, and wealth-destroying intellectual property laws are accused of hypocrisy when we "copyright" our articles and books.
The sly Kinsella explains why he is not hypocritical by arguing that he is trapped by copyright law:

I've pointed out to such people innumerable times, to little avail, that copyright is a noun, not a verb--that you don't "copyright" something--you have a copyright in your original works of authorship as soon as you write them, automatically, courtesy of federal law. No copyright notice is required. No copyright registration is required. You have the right, whether you like it or not.

Well, then, why don't you just "make it public domain," some then, a bit unreflectively, retort. The problem is, there is no clear and good way to do this.
Bull. There is a clear way to do it. "Pull" the copyright. Gary North does it frequently, and has apparently for a long time. He writes of one instance:

In August of 1979, I published the essay by my anonymous Washington analyst, “The Danger Is Defeat, Not Destruction.” By pulling the copyright, I helped get about half a million copies into print. It was widely printed.
By "pulling" the copyright, I take it to mean that North is saying he will not sue anyone for damages who copies the work, even though the state has granted hm the right to do so. Why can't Kinsella do this for all his works. In fact, why can't Kinsella be even more explicit, about his thinking and write:

Although I wrote the following and I am automatically afforded copyright protection, I hold that my written creations are not my property and thus please know that it would be hypocrtical of me to sue you for damages under copyright law, so please print, and broadcast this work in any manner you choose and know that I will not seek damages. In the manner of Gary North, I have "pulled" the copyright. If you would like written permission as to this matter, please send along your name and address and I will send you written permsssion to do as you please with my writings.
If he really believed in his position, I see no reason why he wouldn't do this, and, further, only deal with publishers in the future that will allow him to publish under such conditions. Given his belief that written creations are not property (which by the way I think is an absurd notion), for him to hide behind the "I am trapped into copyright and there is nothing I can do." is nonsense.


7 comments:

  1. So do you think Tucker et al. should, in the interest of consistency, make all of their new books available as free downloads?

    How many people has the LvMI sued for copyright infringement in its history?

    (This is now the 2nd time I have disagreed with your blog posts; not bad.)

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  2. Bob,

    Actually, I am going a step further. Since LVMI holds coypights on a number of books, I am putting together a list of some of those books including Rothbard books, yours, Callahan's and will be asking them permission to publish those books.

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  3. I have just written Jeffrey Tucker for permission to publish, based on his theories, Mises: The Last Knight of Liberalism.

    The Mises Institute holds the copyright.

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  4. Mr. Wenzel,

    You suggest that people who oppose IP ought to "pull" it. I am not sure exactly what kind of advice this is, since you appear to believe in IP, so you seem to be trying to make some kind of consistency advice.

    I have begun to use the CC Atribution 3.0 license--on my journal, Libertarian Papers, for example. This allows others to use the work even for commercial uses, even to create derivative works, etc.--the only condition is attribution. I don't think anyone minds this in the first place.

    Now you seem to suggestion one "ought" (to be consistent?) "pull" the copyright. Well, what else ought I do? I could "attempt" CC0, too--but I've explained here why I don't think this new, experimental technique won't work. "Pulling" the copyright won't work either--just saying you don't have or won't assert a copyright does not mean you don't have copyright, and does not mean you won't assert it. When people re-publish or use a copyrightd work, they need something legally effective that they can rely on. It's not clear that CC0 would work. Some half-assed, layman's amateur attempt to "pull" his copyright also won't work. I suppose I could have a laundry list attempt to get rid of my copyright: I could do Attribution license; a viral Attribution-Share-Alike "copyleft" License; in conjunction with CC0; plus a faux-promise "not to enforce" my copyright, and an email address inviting people to write me. Or, I could simply personally "adopt" the policy of never actually suing people for copyright infringement even if they do it.

    Yes, I could do all this, but it might make things worse--such a confusing situation to deal with and analyze. A simple, clean CC Attribution Only is just fine. Virtually everyone is happy to give attribution credit, so this condition is trivial, thus making CC Attribution the closest reliable thing to a copyright disclaimer.

    As an example, if I were publishing a book and wanted to include article X, I would much rather it be subject to a CC 3.0 Attribution license than CC0 or having some half-assed author-scribbled note on their web page, "I Hereby Exercise My COMMON LAW RIGHTS AS A FREEMAN to PULL my cOPYRIGHT". Why? Because this latter is just a statement; it is likely legally ineffective, except perhaps for setting up an equitable estoppel defense that I might be able to assert as a defense in a lawsuit... and the CC0 might turn out to be ineffective. Since I WANT to put the author's name on it, i.e. give attribution, the CC Attribution license imposes NO real conditions on me at all; I am free to do what I want. I would rather have a CC Attribution license that I can rely on, even if it imposes on me the draconian condition that I provide the author's name! Than a CC0 or poor-man's-crank-license that are legally shaky and unreliable.

    So, thanks for your legal advice, but I think it's wanting.

    I really fail to see how it harms you that some of us are voicing our views as to the problems with IP (problems an increasing number of libertarians and young people are waking up to), or with releasing our works virtually copyright free to the public.

    Respectfully--

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  5. Mr. Kinsella,

    Thank you for your thoughtful legal perspective. I believe you truly are attempting to be consistent.

    Given that I am interested in publishing the book, Last Knight and that the copyright is held by the Mises Institute, where Jeffrey Tucker is aggressively promoting your view on the there being no such thing as "intellectual property", how do you suggest I approach them so that I can start publishing Last Knight without fear of a lawsuit by MI?

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  6. Dear Mr. Wenzel,

    "Given that I am interested in publishing the book, Last Knight and that the copyright is held by the Mises Institute, where Jeffrey Tucker is aggressively promoting your view on the there being no such thing as "intellectual property", how do you suggest I approach them so that I can start publishing Last Knight without fear of a lawsuit by MI?"

    I'm not in the market to obtain more clients at present, so won't be handing out advice here, except to say that in such a case I would just be serious, and not make an eristic demand just to try to score points in an argument.

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  7. Miles Hayward-Ryan NZ lawyerApril 28, 2012 at 2:57 AM

    Copyright strategy
    I am not sure that these posts are being followed any longer but just in case:
    Society and law is never perfect. I always thought that copyright is a matter of legal fiction – a legal creation. Legislation creates the right in copyright just as for patents. The reason is so that originators get a chance to profit from their creation. For patents, the period is generally 20 years. In that time, you are expected to get sufficient profits to make your effort worth-while. For copyright, the period is much longer recognizing that the printed word commands less profits. Society sees the need to allow sufficient reward for originators or else they will produce much less innovation. That would not be good for a laissez faire free market society.
    However there is some utility for society to limit copyright to those who originate it and their family [to be defined but excluding non associated corporations].
    There is less utility in limiting patents to originator and family. Trying to get such alterations to intellectual property law would be problematical. What about paid science employees of pharmaceutical patents? Who should gain the patent benefit? If there was insufficient benefit to the corporation, that would stifle innovation. So the balance is struck.
    The scales of justice for society perhaps should leave patent law alone but limit copyright to originators and family. That encourages the flow of ideas.

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