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Davi Barker

L. Neil Smith is an unapologetic collectivist and I want to take him to private arbitration.

There is currently a dispute over intellectual property raging between Libertarian Author L. Neil Smith and some members of the Shire Society. A complete impartial summary of events can be found in an article by Stephan Kinsella at the Mises blog. If you want to read the entire conflict as it developed, complete with emails between Smith and members of the Shire you can read it here. It's all time stamped, so it's clear who said what when.

I will not claim impartiality in this dispute. As a proud signatory of the the Shire Declaration I recognize that I have a conflict of interest, and if I were asked to arbitrate this dispute, I would recuse myself. But here is a quick summary of what I understand so far. Some members of the Shire Society began with L. Neil Smith's "Covenant of Unanimous Consent" as a template, and had a lengthy discussion masaging it into our founding document. They admit that the Shire Society Declaration is derived and inspired by the The New Covenant, and it is likely this would have been more prominently displayed on our forthcoming website, which has not been launched.

Admittedly, the preamble of the declaration is identical.

L. Neil Smith made a comment on my blog post about the Shire here:

"Shire Society Founders: please contact me immediately by e-mail, as we have important business I’m sure you’d rather discuss privately than in public." I was able to connect him with other free people of the Shire, although I seriously considered responding simply, "Neil... you're the founder of the Shire Society."

What followed was a storm of insults and accusations from both sides. It was a major topic of discussion on the July 13th show of Free Talk Live. Smith, after a few initial emails, withdrew from the conflict promising a "solution" that would "make everyone happy" to be announced on his Sunday edition of the Liberty Enterprise. Well... that has now been published, (Little Criminals: The Context of Consent) and I'd like to respond.

He writes:

"Their principal 'argument' seems to be, now that almost everything is digitized and can be duplicated, manipulated, and transported by means of electronics, that this somehow removes the moral obligation of civilized beings to respect the rights of others and honor their propriety."

No Neil... the principal argument is, if you have an idea, and you share that idea in public, even before the digital age, and that idea comes to rest inside my brain... my brain does not become you're property. Now I have an idea and I am free to share that idea in public.

He continues:

"a small handful of literary muggers and rapists have taken something that I am fairly famous for having written"

So now we are literary muggers and rapists?

"I contacted the plagiarists directly, myself. Imagine my surprise when, instead of apologizing humbly and abjectly, as they ought to have done, and sought to make restitution, they became obnoxious and aggressive."

This is just false on all counts. He didn't contact the plagiarists directly. He contacted me in a blog post. I forwarded the message to the interested parties who immediately responded with a wide spectrum of responses. Some agreed with him, and defended intellectual property. Some absolutely responded with an apology. Many speculated about restitution. All hostility was in response to his contacting a lawyer, which seemed threatening. Smith clarified that he was not involving the state, and apologies were made, even from the most hostile Shire Members. This entire process is a matter of public record here.

I contacted Smith the first day directly with inquiries about restitution. I wrote:

"Mr Smith,

I find it very strange that your chosen method of contact was to comment on my article about the Shire Society. I see I was able to connect you with the relevant parties, although now I feel
somewhat in the middle.

I just want to say that this was a real let down for me. I sincerely felt that something good was coming from
you. I was excited to see a possible collaboration between this
community and you that could be profitable for all parties.

You wrote "My demeanor is far from threatening; it is the natural reaction
of a professional writer to plagiarism." I strongly disagree. I am a
professional writer and artist, and this would not be my reaction. My
wife is an attorney, and I understand greater than most that "lawyering
up" is the proverbial cocking of the gun the room. Though that may not
have been your intention, that is how it is received.

I just had to get that off my chest.

That being said, I fully empathize with your position. Had I been more aware
of all the details I would have made an effort to contact you from the
outset, as I'm sure most of us would. But here we are.

You wrote "I suggest that you get together with your friends and try to figure
out how you're going to make restitution to me." This is not my
understanding of restorative justice. Maybe my understanding is wrong,
but I think the damaged party is responsible for defining the amount of
damage in a complaint. What would make you feel whole? Some measure of
silver? A prominent credit?

Best Regards

As a writer myself, I view the greatest honor that can be bestowed upon an
author is to have inspired actual human action. Imagine if Robert
Heinlein had sought tribute from the Church of All Worlds.

His response was:

Thanks. It all has to do with their collectivist notion that I don't own my own ideas. That makes them badguys, as far as I'm concerned, Ayn Rand style badguys. Things mifht(sic) havebeen(sic) different if they had
informed me that they wanted to use the Covenant. I would not have let
them butcher it, but I might have let them use it.

What do I want? Acknowledgement(sic) that they've acted like socialist scum. They
can't afford to pay in money or any kind. Watch _The Libertarian
Enterprise_ this weekend.


This is why I allege collectivism. He has accused all members of The Shire Society of plagiarism, though many, like myself, were unaware. He has suggested that we all have the same position on Intellectual Property, which we don't. He has alleged that we are all "literary muggers" and "rapists" and "Socialist scum" and "Ayn Rand style badguys" though we all played a different role in the founding of the Shire Society. This Shire Society is not a collective. It is a society of individuals which Smith is treating as a collective, even though it has been explicitly expressed to him by me and others that we are not.

Some have called him a "Statist Asshole" but not all, and not before he called all "Socialist Scum." I do not call him a Statist Asshole. I call him a collectivist. Going back to his article he writes:

"The very next thing I knew, I was being defamed, by the leader of these scavengers and parasites, to all sixteen of the listeners to his Internet radio show, and all over the Internet."

I have explicitly said to Neil that Ian Freeman (host of Free Talk Life, a nationally syndicated radio show, not only an internet show) does not speak for me, and that he is not the leader of the Shire Society. Yet, in his collectivist thinking, Smith refers to us all as scavengers and parasites, and then has the nerve to allege that he has been slandered.

Though he claims that "we" have stolen his work and offered it as "our" own, no one, as far as I know, is claiming authorship of the Shire Society Declaration. It was a group effort, and the entire process is public.

He writes:

They informed me, loftily, that just because I think of an idea, that doesn't mean it belongs to me. That if I don't want something I created stolen, then I shouldn't communicate it to the world. Fine—and
if everybody followed this "advice", these creeps wouldn't have
any opposition to their thievery, and no stories or books would ever
be published, no songs would ever be written, no music would ever be

What a swell world that would be.

And just a few short sentences later writes:

As an individualist, I'm not generally interested in Utilitarian arguments.

"What a swell world that would be" IS a utilitarian argument. Then he writes:

It is worth noting that the past 300 years have seen the greatest progress in human history, and it's exactly the same era in which copyright has been respected and stringently enforced.

No Neil. It's not worth noting, because that's a Utilitarian argument. You may as well say, "It's worth noting that the past 300 years have seen the greatest progress in human history, and the greatest growth in government power, military adventurism, and transgressions of individual liberties." The only argument he has offered for the existence of intellectual property IS a utilitarian argument. And thou he claims the mantle of being an individual, he denies that status to others who he describes. "They" didn't inform him of anything. An individual of that opinion did. Others in the Shire agree with him.

He begins again:

"Since there is no actual difference between intellectual property and physical property..."

And that's where I'm going to stop. Because that is the unproven first premise of his entire argument. That intellectual property and physical property are completely identical. And it's just completely false. And I'll prove it. Neil claims that the labor of the writer on the page is identical to the labor of the farmer on the land, and his wife says, "unless you can go out in a field somewhere and pee me a bicycle without reflecting on it, all property is intellectual property. "




One of those bicycles I created out of my own labor as a writer on the page, and the other I "stole" from your wife. Which is which?

In the end his promised "solution" that will make "everyone happy" is that he "sentenced" us to read some books of his that address intellectual property in a stateless society. So apparently, in Smith's world it is the responsibility of the accused not the accuser to guess at the level of damage, and it is the responsibility of the accuser and not the arbiter to lay a sentence.

I will not be reading your books Neil.

As I stated in the July 13th show of FTL, the answer to this dispute is to once and for all test the theory that conflict can be resolved by voluntary private arbitration. The only good for the liberty movement that can come from this dispute is if we finally begin practicing what we preach and set some precedents in the realm of dispute resolution.

So, I challenge you Neil, step out of your fictional worlds and let's get real. Let's you and me find an impartial third party arbiter and see if you can prove to us all that you have suffered damages at my hand. By your collectivist rhetoric you have included me in the charge. You have called me a thief, a socialist, a rapist, a parasite and a "sticky-fingered little rodent." I have offered to try to make you whole, and you continue to insult ME as an individual. So let's come to an agreement. You and Me. That you can present your case in public. And I can present my case in public. And we will submit to the ruling of a private arbiter. And if he decides that I, as an individual, have injured you, as an individual, I will personally offer restitution to you in whole.

For the Record: All my correspondence with L. Neil Smith

Lounge Daddy Comment by Lounge Daddy on July 19, 2010 at 3:12pm
Wouldn't this be like the estate of John Locke suing the Founding Fathers over the almost identical words of the Declaration of Independence -- "Life, liberty and the pursuit of happiness"?

That's damn close to what Locke had to say about life, liberty, and property.
Lounge Daddy Comment by Lounge Daddy on July 19, 2010 at 3:22pm
As I was wading through the back and forth in the Free Keene forum the other day, I saw the Fountainhead comparison.

Now, I get his bringing up The Fountainhead. I really do. And it helped illustrate how he feels. But ...

No one took copies of his book, altered the text, and then distributed a remixed version of his book. So while I understand it, I don't agree with the Fountainhead comparison at all.

It's pretty sad that he inspired people. And now he is coming across as someone who is being bitter about it, because he didn't give permission to be inspired. So he comes off as an old bitter curmudgeon.

Too bad.
Darian Worden Comment by Darian Worden on July 19, 2010 at 3:32pm
This sounds like a good solution, but I'm not sure who would count as an impartial arbiter. A lot of it hinges on whether intellectual property is valid. Perhaps a panel of arbiters pro-IP and anti-IP. The outcome would depend on who more effectively presented his arguments. But the burden of proof ought to be on the accuser, in this case L. Neil Smith.
Davi Barker Comment by Davi Barker on July 19, 2010 at 3:39pm
I am open to that. The best suggestions I have heard so far is Stephan Kinsella and Stefan Molyneux. If Smith shows any openness to this suggestion I will approach them with the request. For me personally, it would be worth taking a loss to reimburse them just to set the precedent. But so far Smith is all insults and no civility. He wrote to me saying that he would not participate in private arbitration because he doesn't want to give me a taller soapbox. Instead, he will continue to write on his own site without a discussion. His words not mine.
Matthew N. Hunt Comment by Matthew N. Hunt on July 19, 2010 at 4:24pm
The thing is, I could see how L. Neil could be a *little* annoyed if The Shire Society Declaration was an identical document. Then that would be plagiarism as defined by most dictionaries. It's not though. It is similar, but just because something is similar and inspired by your work does NOT make it plagiarism.
Also, I doubt L. Neil was the first one to ever think of this kind of idea.
Matthew N. Hunt Comment by Matthew N. Hunt on July 19, 2010 at 4:34pm
The important question to me is whether he wants to use the Big Gang to enforce his opinion or whether he wants work out a peaceful, libertarian solution to this issue. If the answer is the former, than as far as I'm concerned he can no longer honestly call himself a libertarian.
Davi Barker Comment by Davi Barker on July 19, 2010 at 4:42pm
I agree that he has reason to be annoyed. I am also annoyed, not having realized the extent to which the declarations were the same until this blew up. I said as much in my first email. But that's not the issue anymore. The issue is, why is he completely unwilling to negotiate a peaceful resolution?

I acknowledged the slight. I asking him to explain how I injured him. I asked what would make him feel whole. I offered to resolve the dispute peacefully and the insults continue.

He is now alleging that I am lying when I claim to have hand written the document.
Matthew N. Hunt Comment by Matthew N. Hunt on July 19, 2010 at 4:55pm
Please re-read my post. I didn't say he had reason to be annoyed. I said I could see it *if* etc etc.
Davi Barker Comment by Davi Barker on July 19, 2010 at 4:58pm
Sorry... I see.
J. Neil Schulman Comment by J. Neil Schulman on July 19, 2010 at 7:10pm
If the Covenant of Unanimous Consent is so darned unoriginal and unimportant, then why did you need to copy from it in the first place? If you're a writer with nothing to learn from L. Neil Smith -- as smart and original as L. Neil Smith -- why didn't you start from scratch?

That's the part of this argument I never get. "You suck -- but I want you."


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