Liberty, Anarchism, and Eben Moglen

by on March 18, 2009 · 44 comments

TLF reader mwendy points me to this Eben Moglen paragraph, presumably as evidence of his anti-libertarian agenda:

“…Moreover, there are now many organizations around the world which have earned literally billions of dollars by taking advantage of anarchist production. They have brought their own state of economic dependency on anarchist production to such a high level, that they cannot actually continue operating their businesses without the anarchists’ products. They, therefore, now begin to serve as founders, mentors, and benefactors, for anarchism. They employ our programmers and pay them wages. They assist our programmers in gaining additional technical skill and applying that skill more broadly. They allow me to heavily fund a carefully constructed law firm in New York, to train only lawyers to represent only anarchists on only the payrolls of the big companies which produce the money to pay for the legal representation of anarchism. They have to do that. They need anarchism to be legally solid. They do not want it to fail. They want the anarchist legal institutions that we have created to become stronger over time, because now their businesses depend upon the success of anarchist production.

“In other words, we have reached a very important moment, a moment noticed some hundred years ago by my collaborators Marx and Engels. We have reached the moment at which the bourgeois power sources have turned the crank on invention to the point in which they are actually fueling their own downfall. They have created the necessary structures for their replacement and the forces which are speeding up that replacement are their own forces, which they are deliberately applying because the logic of capitalism compels them to use those new forces to make more money, even though in the long run it speeds the social transition which puts them out of business altogether. This is a very beautiful feeling…”

As I said before, Moglen is not the guy I’d pick to sell free software to libertarians. But I don’t think this passage is as outrageous as mwendy thinks. According to Wikipedia, anarchism “is a political philosophy encompassing theories and attitudes which consider the state, as compulsory government, to be unnecessary, harmful, and/or undesirable.” That certainly sounds like a laudable goal to me. I don’t personally think it’s possible to achieve a stateless society, but there are plenty of self-described anarchists who take fundamentally libertarian policy positions.

Of course, Eben Moglen is not Murray Rothbard, and I’m sure there are plenty of issues where Moglen and I wouldn’t see eye to eye. But aside from his name-checking of Marx and Engels, there’s no evidence of that in this passage. It’s important to remember that libertarians’ objection to Marxism isn’t over Marxists’ desire for a classless society but their willingness to use violence to achieve it. But here it’s very clear that Moglen isn’t advocating the triumph of free software via violent revolution. The process Moglen describes is entirely peaceful and voluntary. Companies are funding the free software movement because it’s in their self-interest to do so. Maybe Moglen is right that in the long run this process will doom the proprietary software industry, but I don’t see how that would be a problem from a libertarian perspective.

I’ve written before that the world is full of left-wingers trying to achieve left-wing goals through peaceful means, and that this is something libertarians should celebrate. Many of these experiments will fail, of course, but the essence of a free society is letting these kinds of experiments run their course. Of course, we can all have opinions about the likelihood that any given experiment will succeed (I’m not expecting co-ops to topple commercial grocery stories any time soon, for example) but there’s nothing particularly libertarian about trying to predict in advance which forms of social cooperation will prove most successful.

When you strip out the left-wing rhetoric, that’s the process Moglen is describing here: a group of people decided to try a new way to develop software based on sharing rather than ownership, and it turns out that it out-performs proprietary alternatives in at least some sectors of the software industry. That’s an interesting result that we need to incorporate into our economic models. And it’s perfectly compatible with libertarianism provided that we understand that being a libertarian means being pro-liberty, not necessarily pro-business.

  • dimitris

    being a libertarian means being pro-liberty, not necessarily pro-business.

    Cannot agree more.

    Another way to remember this is, to (mis)quote The Economist, “supporting Free Enterprise is decidedly not the same, and usually antithetical to, supporting A Specific Enterprise.”

    Therefore “free enterprise” must be treated as a red flag and cause for closer inspection when it comes up in arguments (or – couldn't resist – think tank names), as it can be supporting actions on either side of this bait-and-switch.

  • mwendy

    Tim, facts are a stubborn thing. I (along wth others who traverse this page) sat across Eben before Gail Brewer of the New York City Council, as he and his comrades urged the City to choose only FLOSS in their procurements of software.

    We (as well as others that comment and write here) have labored across the globe to combat Eben's, and RMS' and Andy Updegrove's and Ed Felten's curious form of libertarianism.

    To them, they have elevated FLOSS to a “civil right” (how degarding of real civil rights struggles, wouldn't you agree?), and, well, anything can be justified when you do this. But, key to that, like the TARP bailout, or the Great Society, curiously, government plays a large role…not the free market.

    I'd be fine if they stuck there, with the free market. But, facts being as they are, they don't. They want government to tilt the playin field to their model…only. Ask your Princeton cohort, Ed Felten.

    Thankfully, of the 85,000 jurisdictions worldwide, they have have been “successful” in about, well, 10 (give or take). Pretty good track record for those libertarians, wouldn't you say?

  • http://www.cs.princeton.edu/~tblee Tim Lee

    I don't know who Andy Updegrove is, and I'm not aware of Ed Felten being involved in free software advocacy. Care to elaborate?

  • http://sethf.com/ Seth Finkelstein

    Hee hee hee … “understand that being a libertarian means being pro-liberty, not necessarily pro-business.” Nope. That's a key point of mine, hammered for more than a decade now. Libertarians define “liberty” as “business”. You're having this demonstrated to you extensively.

  • Tom Sydnor

    Tim, gosh, what a shock, you have again created a new thread on the same topic when you were getting killed on the merits in the comments on the last thread. And again, I take great comfort in the company you are keeping in order to find support for your views. In any case, there are profound flaws in the arguments that you are making. Specifically, your premise is false, and your conclusions do not follow.

    You say, “In a world where some of the most popular websites on Earth are built on the LAMP stack, it’s awfully hard to argue with a straight face that creativity will only happen if creators are given [property] rights in their works.” Actually, it’s really easy.

    The LAMP stack consists of creativity that happened because creators were given property rights in their words. The works in that stack are copyrighted, their creators retain property/monopoly rights in them and they enforce them. FSF, in particular, aggressively enforces its copyrights in both GPL software and in the GPL itself. To be sure, developers of FOSS software may exercise their property rights differently than some developers of proprietary software, but the copyright system was intended to provide them with the freedom to do so.

    Indeed, that freedom is why Stallman never had to “run to Congress seeking legal changes” in order to create his compiler or the GPL: copyright laws were intended to let creators keep their creations secret, to sell copies for money, to cross-subsidize their production, etc., all the way down to dedicating them irrevocably and freely, to the public domain. As a result, copyright law requires creators to compete not only to create works, but also to administer and exercise their rights in those works. I think that you are mistaken to call Stallman’s retroactively imposed, TBD-vision of “freedom” a “utopia,” but existing law will empower and enforce at least most of it.

    Nor would your conclusions follow even were your premise valid. You seem to conclude that the “utopia” being built over at the FSF proves that copyright owners do not need any exclusive rights except those utilized in the GPL. For two reasons, that is wrong.

    First, even in the narrow context of application software development, Stallman and Moglen’s “utopia that’s being built has we speak” has hardly swept the field. Developers of proprietary software that license copies for cash are thriving. For example, Adobe’s Photoshop is doing just fine against its FOSS alternative, The GIMP. Why would we settle this ongoing and robust debate about application-software-development methods via Eben Moglen’s “bracing” podcast, rather than market competition between creators who made different choices about how to exercise their talents and administer the resulting rights?

    Second, the fact that the FOSS model still seems viable in the context of application software in no way implies that the same model will work for all the different types of works and industries encompassed by copyrights. Nor does it mean that this one model would remain viable and appropriate over time.

    And that latter point is critical: what works today may not work tomorrow. Were we having this debate in the 1970s, I would be hearing wonderful tales about how ingenious it was for newspapers to use classified advertising to cross-subsidize the production of local news. And that scheme was indeed ingenious—for a while.

    In conclusion, Stallman and Moglen surely do believe that “utopia” is being built right before our eyes at FSF. If so, that’s great: their “utopia” is being built by the “monopoly” provided by existing copyright law.

    But utopia has been built and rebuilt many times by many sincere people. Someone is always building or rebuilding New Harmony, and it usually even works—for a while. And that is why I favor copyright laws that provide creators with a broad array of practically enforceable options for exploiting the results of their own labor, including selling copies to businesses, selling copies to consumers, licensing copies for cash, cross-subsidizing, FOSS, etc.

    But I do not favor the approach championed by Messrs. Moglin and Stallman. They are all too eager to deny other creators the rights to choose and the flexibility that made the FSF vision of “utopia” possible. –Tom

  • Timon

    In other shocking instances of hypocrisy, the Right to Life Foundation lobbied against the provision of public funds for abortions, and the National Organization for the Reform of Marijuana Laws requested an end to funds for enforcing marijuana prohibition.

    A “free market” in, say, taxi medallions would have to start with the abolition of taxi medallions — the underlying “property” being the creation of some forlorn government agency. The argument that a healthy market, whether for taxis or innovation, begins in a bureaucrat's office may be right, but it is not libertarian. As long as the vendors assert patent rights over software (which is a direct attack on the freedom to do math) it is fair to oppose your government buying their products on your behalf, with your money.

  • MikeRT

    Second, the fact that the FOSS model still seems viable in the context of application software in no way implies that the same model will work for all the different types of works and industries encompassed by copyrights. Nor does it mean that this one model would remain viable and appropriate over time.

    Or, to borrow a cliche, correlation is not causation. I've repeatedly pointed this out here too. FOSS works best on infrastructure software, as it levels the playing field. It does not work for software where the revenue is derived from sales, not support, like most desktop software.

  • http://www.cs.princeton.edu/~tblee Tim Lee

    Tom, as usual there seems to be little correspondence between my post and your response. I found it most striking that you felt it was appropriate to alter my words (replacing “monopoly” with “property”) and then put the results in quotation marks and attribute them to me. Let's just say that this isn't how scholarship is normally done.

    Anyway, as best as I can tell we agree about this. I think we agree that Stallman and company are engaged in an entrepreneurial venture to build an alternative to the proprietary software business model, and we should wait and see how well the experiment works. I think I'm more optimistic than you are, but that's for the market to figure out, not either of us.

  • mwendy

    Andy Updegrove is a lobbyist/advocate on the ODF front. He is ubiquitous – whenever state governments are looking for people to talk about ODF for state document archiving policy, he's there. Appears with the Sun and IBM people a lot, though I'm not sure what that connection is (or isn't)..

    Ed Felten is involved on the e-voting front. He advocated for Rush Holt's e-vote bill in the last Congress. That bill has been interpeted by many in the community as being an open source voting technology bill (among other things). In fact, he and Deborah Bowen (California's AG), along with Zoe Lofgren (Chair of the subcommittee in which the Holt bill was being pushed), couldn't say nicer things about how open source was the right, proper and transarent (read – only) way in which e-voting software should be developed. during a hearing two years ago on the Holt bill.

  • MikeRT

    I think we agree that Stallman and company are engaged in an entrepreneurial venture to build an alternative to the proprietary software business model

    The FSF seems to do a lot more lobbying and activism than actual software development these days. The point that you're missing here is that you are making common cause with people who vehemently oppose your worldview; Stallman would rip out the legal foundation of proprietary software in a New York second if he could get support in Congress.

  • http://www.cs.princeton.edu/~tblee Tim Lee

    You keep changing the subject. Advocating government use of open formats is very different from advocating government use of free software. And anyway, as long as the government is procuring software, what's wrong with open source vendors lobbying for their software to be chosen?

    As far as e-voting goes, I don't remember the Holt bill having an open source mandate. But frankly, I would have supported it if it did. The source code to a voting machine is literally the process by which the election results are counted. Governments have an obligation to run elections transparently, and disclosing voting machine source code is just one aspect of transprent elections.

  • mwendy

    Tim, they do both, and ask that it be to the exclusion of other software choices, a policy of exclusion that could not be achieved in the marketplace. Open Standards / ODF is a proxy for open source adoption (look especially at the EC's IDABC's definition of open standards and preference). Eben et al are asking governments to tip the playing field to their advantage. They could just as easily do this in the marketplace (and to some extent they have found some success there), but they have chosen to go in this belt-and-suspenders approach.

    It's a game, Tim. One which they seek to use government laws and policymaking – not the marketplace, or the merit of any given product – to win. I don't associate that with libertarianism.

  • mwendy

    On e-voting, states have an escrow system that allows companies to place their code safely in the hands of state officials (or proxies) to determine if it's not working correctly. This balance allows them to maintain their trade secrets, and provide assurance to officials that the deck ain't rigged. it's disclosed, but not in an open source way (what ever that means).

  • D.H.

    Yes, those trustworthy state officials. Excuse me if your suggestion doesn't fill me with ease about black box voting software.

  • Tom Sydnor

    Tim, I must make three points in reply.

    First, you said, “I think that we agree that Stallman and company are engaged in an entrepreneurial venture to build an alternative to proprietary software….” I cannot agree that Stallman and Moglen are engaged in an “entrepreneurial venture….” Nor do I understand why you would use that term. Perhaps your dictionary defines “entrepreneurial venture” as “an activity intended to makea socially productive activity so unrenumerative that it must be supported and subsidized by federal taxation.” Or perhaps you have, (again, see, e.g., your post Selective Quotation in the Sydnor Paper), failed to review the relevant source material, like Stallman’s early proposals for the long-term viability of GPL-software development. In either case, while I agree that the GPL has supported some “entrepreneurial ventures,” that was the result of accident, not the designs of FSF.

    Second, you say, “I think that we agree that… we should wait and see how well the [GPL] experiment works.” I do agree with that statement, but I also think that it completely contradicts the message of your original post.

    For example, in that post, you noted, (correctly) that Stallman did not have to run to Congress to get permission to create useful software and release under the GPL. One difference between us may be that I may better understand just how critical that freedom—which was conferred upon Stallman by copyright law—really was.

    For example, suppose that Stallman really did have to run to Congress and get legislation enacted in order to be able to create software to be released under the GPL. And suppose also that Stallman had to get such legislation introduced and enacted when I happened to be, as I once was, the Counsel for Intellectual Property and Technology to the Chairman of the Senate Committee on the Judiciary.

    I would have taken the meeting, but its outcome would have been irrelevant. Odds are, I would have simply dismissed Stallman as a crank and pursued the matter no further. But even if I somehow caught GPL-fever upon first exposure, it seems almost incomprehensible that anyone could have been convinced to expend the political capital required to enact the “GPL Act of 2004” in the face of the predictable opposition.

    So far, events suggest that either result would have been destructive. You are right, Tim, I am not “optimistic” about the future of the GPL: I think that many developers fail to realize that they owe Linus Torvalds for more than an OS kernel; he has also deferred some of the more destructive manifestations of Stallman and Moglen’s ideology. Someday, that dam may break. But regardless of whether or when it will, no developer’s ability to do what they think best with their work should turn upon whether it meets with my personal approval.

    And that’s why I tend to believe—strongly—that copyright laws ought to be designed to empower and permit, as a practical matter, all business models that could be socially productive. Those who favor narrowing the range of business models permitted by copyrights seem endowed with a faith in their own powers of prediction that I cannot share.

    Third, and finally, we get to the fun part. You said, “I found it most striking that you felt it was appropriate to alter my words (replacing “monopoly” with “property” and then put the results in quotation marks and [indignant sniffle] attribute them to me.” Note that in the preceding sentence, as in my prior sentence “[property]”, I have used brackets to indicate where I am characterizing, rather than quoting, your words.

    This practice is actually quite common. Here, I used it to very gently critique your implied insult to the intelligence of TLF readers. Since you missed the point, I will be more blunt.

    Tim, I replaced your term “monopoly” with my term “[property]” because I assume that anyone who calls himself a “libertarian” knows that “monopoly right,” “property right,” and “exclusive right” are generally just three different ways to say the same thing. But no need to take my word on this. Let’s hear—not from Stallman or Moglen—but from an actual libertarian, Milton Friedman, from his book Capitalism and Freedom:

    “[Copyrights and Patents] are different, because they can equally be regarded as defining property rights. In a literal sense, if I have a property right to a particular piece of land, I can be said to have a monopoly with respect to that piece of land defined and enforced by the government.”

    So, Tim, why do you insist upon using the term “monopoly right”? Frankly, I suspect that you do so in the hope that it will mislead some TLF readers who are just not quite as clever as you.

    You and I both know that most people, as a result of the term’s specialized meaning within antitrust law, associate “monopoly” with “market power” or even “unreasonable abuse of market power.” Consequently, most who use the term “monopoly right” when discussing copyrights do so because they hope to confuse and mislead the gullible through this oh-so-clever rhetorical device that makes the concept of a “property right” sound sinister and scary.

    Granted, Tim, you may using the term “monopoly right” because you genuinely believe that all copyrights act as economic monopolies within the meaning of antitrust law. So tell me, Tim: Are you asserting that the mere possession of a copyright inevitably confers market power within the meaning of the law of antitrust? Are you going farther, and asserting that the mere possession of a copyright inevitably results in the abuse of market power within the meaning of the law of antitrust?

    These are not rhetorical questions, Tim: If you can, you need to explain your use of this Scary Synonym. And if you insist on adopting the fiction that copyrights are not really “property rights,” (and I advise you to check your sources before you do) then please be so kind as to either concoct some more neutral alternative, or adopt one of those already concocted by others.

    But if you insist upon rhetorical overreach, then why not go whole hog and adopt the Free-Culture-Movement practice of inserting the term “monopoly” into a new acronym that spells out the name of a mythical monster. My personal favorites are G.O.L.E.Ms. (Government-Originated Legally-Imposed Monopolies) and I.M.Ps. (Imposed Monopoly Privileges). These will really scare the dullards, if not the readers of TLF.

    Having explained why I used the brackets, let me admit that as a general matter, I think this sort of rhetoric unpersuasive and ineffective. As a result, if the term “monopoly right” is important to you, Tim, I will faithfully reproduce it when quoting you in the future. Unless, that is, I decide to re-make the points set out above. –Tom

  • http://www.cs.princeton.edu/~tblee Tim Lee

    Tom, brackets are commonly used to either summarize a long paragraph or to make a quotation grammatical in its new context. It's totally inappropriate to use brackets as a way of making an ideological point. Given your history of misrepresenting others' views, I think you should be particularly careful in this respect.

    I choose to call copyright a monopoly right to emphasize that it is a statutory right created by Congress. This is very different from ordinary property rights, which tend to emerge spontaneously and are only recognized and secured by government after they are recognized by civil society.

    And you totally missed my point with regard to Stallman and Congress. The point of the GPL is to ensure that downstream distributors of GPLed software do not use copyright or patent laws to restrict users' freedom to use that software. In a world without copyright, the GPL would likely not be needed because users would have that freedom by default. Certainly, in a world without copyright Stallman wouldn't need Congress's help to create his software.

  • Alex

    Facts:

    http://www.gnu.org/philosophy/copyright-versus-

    <quote>

    RMS: … Meanwhile for software, I suspect that a three year
    copyright would be enough. you see if each version of the programme
    remains copyrighted for three years after its release well, unless
    the company is in real bad trouble they should have a new version
    before those three years are up and there will be a lot of people
    who will want to use the newer version, so if older versions are all
    becoming free software automatically, the company would still have a
    business with the newer version. Now this is a compromise as I see
    it, because it is a system in which not all software is free, but it
    might be an acceptable compromise, after all, if we had to wait three
    years in some cases for programs to become free… well, that's no
    disaster. To be using three years old software is not a disaster.

    [...]

    AM4: The problem with this change in the copyright laws for three
    would be that you wouldn't get the sources.

    RMS: Right. There would have also to be a condition, a law that to
    sell copies of the software to the public the source code must be
    deposited somewhere so that three years later it can be released. So
    it could be deposited say, with the library of congress in the US,
    and I think other countries have similar institutions where copies
    of published books get placed, and they could also received the
    source code and after three years, publish it. And of course, if the
    source code didn't correspond to the executable that would be fraud,
    and in fact if it really corresponds then they ought to be able to
    check that very easily when the work is published initially so
    you're publishing the source code and somebody there says alright
    “dot slash configure dot slash make” and sees if produces the same
    executables and uh.

    So you're right, just eliminating copyright would not make software
    free.

    AM5: Um libre

    RMS: Right.

    </quote>

    http://www.tlug.jp/docs/rms.html

    <quote>

    HY: Hmmm. Then tell me what you think about pirated software.

    RMS: I don't call this copying “piracy”, because that is a propaganda
    word. I don't think it is wrong to copy and share information.
    Governments can pass laws against it, but that does not make it wrong,
    just illegal.

    An unauthorized copy of a proprietary program has the same drawbacks
    as an authorized copy. If you want to make more copies and share them,
    you have to do it in secret; and you cannot get the source code.

    So I think that unauthorized copies are not much better than
    authorized copies. The only good thing about the unauthorized copy is
    that you avoid giving money to the owner. This is good, because the
    owner does not deserve a reward for making software proprietary.

    </quote>

  • Alex

    Forgot to mention…

    ALL, please visit

    http://gng.z505.com/index.htm

    GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG…NGNGNG… and can be said backwards too, whereas GNU cannot.

  • http://www.cs.princeton.edu/~tblee Tim Lee

    That's interesting. I hadn't seen it before.

  • Tom Sydnor

    Tim, you say, “Given your history of misrepresenting others' views, I think you should be particularly careful in this respect.” Tim, I have no history of mischaracterizing other's views. But you do—and you generated this despicable “history” by being too immature, too irresponsible, and too biased to check your sources, (and read them with an unjaundiced eye), before leveling serious accusations at those who disagree with your brilliance. For example, and as my previous post suggested, had you bothered to check sources before just presuming that your college roomate, Julian Sanger’s, account of Lessig’s views was correct, and mine wrong, you would never have authored a post asserting this. But you could not be bothered.

    Check the source materials, Tim. I characterized them correctly. Julian got them wrong. If this is news to you, that is because you chose to sling very serious allegations without confirming their validity. I thus suggest, for the last time, that you belatedly check the relevant source materials, and then apologize—before I lose patience with your childish antics. I take intellectual honesty far more seriously than you ever have, young man.

    And I will now prove that by walking through your excuses, Timothy, and eviscerating them. And let’s be clear, Tim. Since you have again (wrongly and ignorantly) accused me of intellectual dishonesty, I presume that you will—for a change—have the guts to respond substantively to the points that follow. Your habit of intellectual cowardice is most unbecoming, Tim. I expect you to end it now and to face the consequences of your incompetent illogic.

    Next, Tim, you say, “It's totally inappropriate to use brackets as a way of making an ideological point…. Tom, brackets are commonly used to either summarize a long paragraph or to make a quotation grammatical in its new context.” Your views are erroneous, Tim, but that is why I don’t pay much attention to pedantic lectures on English usage delivered by schoolboys.

    To be clear, Tim, I was making “an idealogical point” only in the sense that I was, indeed, mocking your pretentious, misleading rhetoric. But I poked fun at you within the rules of usage. Consequently, you have responded by picking a really stupid fight that you will inevitably lose. Being arrogant, underinformed, overconfident, and unaware of standard English usage, you have stomped self-righteously into the buzzsaw.

    Newsflash, Tim: brackets are also frequently used when one synonym can be fairly substituted for another. I would prove this, Tim, but you are so familiar with this principle that you accept it automatically when doing so does not—directly—make you look stupid. For example, I quoted Milton Friedman, for the following proposition: “[Copyrights and Patents] are different, because they can equally be regarded as defining property rights. In a literal sense, if I have a property right to a particular piece of land, I can be said to have a monopoly with respect to that piece of land defined and enforced by the government.”

    Tim, were you the sort that bothered to check source materials, you would have known that the bracketed text was synonymous with the actual text. In the actual text, Friedman used a pronoun, but its antecedent was “copyrights and patents.” Are you now suggesting that this usage was improper, or that Milton Friedman and I just do not understand the “idealogical” difference between “monopoly rights” and “property rights”? A usage is not “idealogical” Tim, just because you pretend that it is. If the terms “property right” and “monopoly right” are as interchangeable as Milton Friedman suggests, then no wrong was done to you—I simply made fun of your trite rhetoric.

    Next, Tim, you try to excuse your trite rhetoric as follows: “I choose to call copyright a monopoly right to emphasize that it is a statutory right created by Congress. This is very different from ordinary property rights, which tend to emerge spontaneously and are only recognized and secured by government after they are recognized by civil society.” Tim, this pathetic “answer” is nonresponsive—it’s an excuse, not an explanation.

    Tim, had you claimed that “copyrights” were “statutory rights,” we would never have had this debate. Do you really claim that all such “statutory rights” are “monopoly rights”? (And before you answer, Tim, think about net neutrality.)

    Of course you don’t—that’s ridiculous. For example, in U.S. law, those awful “statutory” copyrights actually predated the Constitution in 12 of the 13 orginial States; they appeared in in the original constitution in 1789; and they appeared in federal statutes in 1790—the same year as the Bill of Rights. In effect, Tim, your implausible excuses force you to argue that any “right” merely recognized, but not implemented, by the federal Constitution in 1789 is a mere “statutory” right—and thus, for some inexplicable reason, a “monopoly right.” That’s absurd.

    Cut the nonsense, Tim: you used a misleading Scary Synonym because you arrogantly presumed that your readers could not pace your oh-so-clever rhetoric. I called you on it, and as a result, you now look disingenuous and silly. In time, greater maturity and more serious study of the subject matter will work their usual magic, and you may someday perform a socially useful function by doing the same to me. This is why the marketplace of ideas eventually produces good results: It punishes those who overreach or mislead. Welcome to the market, Timmy.

    So spare me your quivering lip and implausible excuses: this is not “me” being mean to “you,” Timothy. It’s “market discipline” operating within the “marketplace of ideas.” If you find its effects unpleasant, well, that is the point: as soon as you stop overreaching by calling copyrights “monopoly rights”—and by pretending that Eben Moglin is a hero for libertarians—this will stop happening.

    Game over, Tim. And if you think otherwise, then stop running away, turn and face me, and answer the legitimate, fair questions that you continue to dodge: “Are you asserting that the mere possession of a copyright inevitably confers market power within the meaning of the law of antitrust? Are you going farther, and asserting that the mere possession of a copyright inevitably results in the abuse of market power within the meaning of the law of antitrust?”

    And don’t try to pretend, Tim, that you can refuse to answer these questions because you are just too pure, too perfect, and too important to be bothered. You have showed your true colors too clearly: everyone will realize why you are—again—scampering like a baby bunny for the safety of your burrow. So if you chose to keep denying reality, Tim, then stop running away and turn and face the consequences of your own trite rhetoric. Granted, they stink, but that was your choice, not mine.

    Finally, Tim, you made the following silly claim:

    “[Y]ou totally missed my point with regard to Stallman and Congress. The point of the GPL is to ensure that downstream distributors of GPLed software do not use copyright or patent laws to restrict users' freedom to use that software. In a world without copyright, the GPL would likely not be needed because users would have that freedom by default. Certainly, in a world without copyright Stallman wouldn't need Congress's help to create his software.”

    Don’t lie to your readers, Tim. That was NOT the point of your original post—and you know it, young man. I would quote your own words back to you, but your run-and-rethread tactics make that inconvenient, and I would encourage such tactics by compensating for the inconveniences that they impose upon your readers. Run-and-rethread has lost its utility, Tim.

    Indeed, your whole point is absurd. You are claiming that but for copyrights, Stallman would have gleefully put his code into the public domain and let others recompile it into object code that they could then sell. What baloney.

    Stallman—fairly, in my opinion, but not in yours—wanted to ensure that others could use the results of HIS labors ONLY if they were willing to be bound by the TBD-version of “freedom” that Stallman articulates in the current version of the GPL. Had copyrights not existed, Stallman would have needed to get Congress to enact legislation to achieve this result. I know this. You know this. Stop assuming that your readers are too dull to know this, Tim. –Tom

  • http://www.cs.princeton.edu/~tblee Tim Lee

    Tom, I think that whatever his last name, Julian's work speaks for itself. I'll let readers decide who is “disingenuous and silly.”

  • Tom Sydnor

    Tim, again you are running like a scared baby bunny from a clear, explicit challenge to the drivel that passes for your “thought.”

    And as for your comment about “Julian’s work,” your cowardice is inexcusible. I gave you several chances to back away from a mistake. But you are too afraid to even check and see whether I might be right. That’s just cowardice, Tim–intellectual cowardice.

    So let’s be clear, little boy, when you deliver sanctimonious lectures and accuse others of “selective quotation” without checking your sources, you become responsible for any in errors in the second-hand information that you are mindlessly parroting.

    And don’t get me wrong, I am not holding you to the one-mistake-discredits-the-corpus standard that juveniles like you would apply to me. I am a grown-up, Tim, and I know that sooner or later, everyone makes that mistake and fails to check sources or misreads them. Fallible humans inevitably do that–though your prissy lecture certainly suggested that you deemed yourself to be the exception to this rule. Having acquainted yourself with the possibility, nay, inevitability of error, Tim, do be aware that the difference between boys and men is that only the latter own up when they screw up.

    But then there’s you: you don’t even have the guts to read one page of Code to see whether maybe–just maybe–you screwed up and falsely accused me of “selective quotation.” That’s pathetic, Tim–truly pathetic. It reflects a lack of integrity, curiousity, and honesty that is truly depressing.

    So go ahead, run away again, little boy. When confronted with your mistakes and the contradictions in your “analysis,” that seems to be all that you know how to do. But just in case, may I remind you that you have AGAIN refused to respond to perfectly fair questions because you have no answers–at least none that do not involve admitting deceit and error.

    And by the way, Tim, I must correct more misinformation in your preceding post. You say “I choose to call copyright a monopoly right to emphasize that it is a statutory right created by Congress. This is very different from ordinary property rights, which tend to emerge spontaneously and are only recognized and secured by government after they are recognized by civil society.”

    Bad news, Tim. Copyrights are statutory only because Congress chose, in 1976, to preempt the pre-existing common-law copyrights that would otherwise exist (and still do exist) under state law. For example, federal copyright law did not protect sound recordings until 1971, yet for some reason, it is not legal to copy Beatles recordings from the 1960s. Why? Because they are protected by common-law copyrights under state law.

    So, what is your new excuse for “monopoly rights,” Tim? The old one merely advertised your ignorance and made no sense at all. Have fun hopping away. –Tom

  • Tom Sydnor

    Tim, be assured, you are not “disingenuous and silly.” To the contrary, you have proven yourself to be an intellectually dishonest coward. After all, only a dishonest coward, when confronted repeatedly with relatively gentle suggestions that he should stop repeating a mistake that he once made by parroting others, would respond by re-parroting the same questionable source material without confirming that it was fair and accurate. Only dishonest, cowardly little bunnies behave like that, Tim.

    So let me be very clear, young man. Whenever you start delivering pedantic lectures about “selective quotation” based upon the say-so of someone else, you not only become responsible for the accuracy of the claims that you are parroting, you also become the target of your own prissy lecture—if you have failed to confirm the accuracy of the claims that you are parroting. Any adult knows this, Tim. That’s why adults do not deliver such lectures without checking their sources to be very, very sure that they are right.

    And don’t get me wrong: I would never hold you, Tim, to the same, juvenile one-mistake-discredits-the-work standard that you would apply to me. I would never do that because your made-up “standard” is unrealistic. Being an adult, I know that the error that you have made here—parroting without checking source materials—is probably an inevitable flaw in discourse among fallible humans.

    That is why, Tim, I suggested, gently—and very gently, given the seriousness of the accusations of wrongdoing that you were so casually hurling at me—that perhaps you should re-check the sources of your allegations. Your baby-bunny reply was, “whatever his last name, Julian's work speaks for itself.”

    Tim, the cowardice and hubris in that reply is appalling and revealing. Essentially, you claimed that you just can’t be bothered to read one page of Code to see whether—maybe—you were so lazy that you wrongly presumed that your “[ex-roomate’s] work speaks for itself” and mine was inherently unreliable. This speaks eloquently not only to your lack of intellectual integrity, but also to your lack of intellectual curiosity. You, Tim, you have proven that you really just don’t care about truth.

    Grow up, Tim. If you parrot your ex-roomie’s claims, then you assume responsibility for their accuracy. Or, at least, you would have assumed responsibility for their accuracy were you were an adult, rather than a lazy schoolboy who stomps, pouts and refuses to take responsibility even when caught slinging inaccurate and very serious accusations of wrongdoing at others.

    You have thus become the definition of intellectual cowardice, Tim. And if you deny that, little boy, then why don’t you check your sources and report YOUR opinion of their reliability rather that forcing your readers to hopscotch among a book, a paper, and two blogs in order to discover whether your opinions have some reasoned basis?

    That is intellectual cowardice incarnate, Tim. You really don’t care whether you are spouting truth or nonsense. That makes you truly contemptible and pathetic.

    Finally, Tim, I note that you have, for the third time, run away from perfectly fair questions about your use of the term “monopoly rights.” For the last time, I ask that you stop hopping, turn around, and defend—if you can—the misleading rhetoric that I have now repeatedly challenged. Why are you afraid to defend yourself, Tim?

    But, Tim, in the unlikely event that you have the intellectual courage to defend yourself, don’t bother with trite nonsense about “statutory rights.” You forget: unlike you, I actually know something about copyright law. Consequently, I know—as you would have known were you educated and intellectually honest—that modern copyrights are mostly “statutory” because Congress, in 1976, chose to preempt most of the state-law, common-law copyrights that were indispensable during the first 186 years of U.S. copyright law.

    For example, federal copyright laws did not protect sound recordings until 1971, but you would be ill-advised, Tim, to assume that you can thus freely copy and distribute Beatles recordings from the 1960s. Why? Because they are still protected by common-law copyrights. That makes your excuses for your misleading rhetoric look really lame, doesn’t it?

    So, Tim, what is your latest excuse for the obvious attempt to mislead inherent in your use of the term “monopoly rights”? Your last excuse was nonsensical gibberish. What is your new excuse, Tim?

    In any case, feel free to hop away, Tim, that will merely confirm everything that I have just asserted. —Tom

  • http://www.fr33agents.com Greg

    Tom,

    To whom was the above comment directed?

  • Joe Strummer

    Stallman and friends want to make IP creation so unrenumerative that it must be supported and subsidized by federal taxation.

    They do? Wow. Anyway, as it currently stands, the copyright code gives IP creators a ton more in terms of subsidization by creating a ready-made framework – monopoly – over the use, sale, distribution, and enforcement rights over certain properties.

    Being able to sue so-called infringers and having the deterrent effect of those suits is a ton more valuable than some federal tax.

    If Stallman etc. want to create a tax to subsidize content creation and do away with copyright law, more power to them. I might disagree with a tax per se, but it's a hell of a lot transparent than copyright law which lets content creators hide behind the illusion that they are just god-fearing capitalists, when all they are is corporate welfare junkies.

  • Tom Sydnor

    Greg, my comment was directed to Mr. Timothy Lee. Joe, if you are unable to see why a system of private property rights and markets–one that has, by the way, helped make the United States the world's most successful creator and exporter of expression–might be preferable to the use of federal taxation to encourage the production of private expression, then further discussion would probably be unhelpful. And if you fail to realize that content industries tend to be highly entrepreneurial, then you should review the relevant data. I suggest starting with Entertainment Industry Economics, by Vogel. In short, your real quarrel is with James Madison and George Washington, not me. –Tom

  • Tom Sydnor

    Greg, my comment was directed to Mr. Timothy Lee. Joe, if you are unable to see why a system of private property rights and markets–one that has, by the way, helped make the United States the world's most successful creator and exporter of expression–might be preferable to the use of federal taxation to encourage the production of private expression, then further discussion would probably be unhelpful. And if you fail to realize that content industries tend to be highly entrepreneurial, then you should review the relevant data. I suggest starting with Entertainment Industry Economics, by Vogel. In short, your real quarrel is with James Madison and George Washington, not me. –Tom

  • Tom Sydnor

    Greg, my comment was directed to Mr. Timothy Lee. Joe, if you are unable to see why a system of private property rights and markets–one that has, by the way, helped make the United States the world's most successful creator and exporter of expression–might be preferable to the use of federal taxation to encourage the production of private expression, then further discussion would probably be unhelpful. And if you fail to realize that content industries tend to be highly entrepreneurial, then you should review the relevant data. I suggest starting with Entertainment Industry Economics, by Vogel. In short, your real quarrel is with James Madison and George Washington, not me. –Tom

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