A is for Abolition

When you have eliminated the impossible, whatever remains, however improbable, must be the truth.

We must abolish copyright.

This is a conclusion anyone can avoid coming to – if they covet copyright’s corrupting power to constrain all others.

B is for Building

Build upon my published work!

Build upon everyone’s published work. You are naturally at liberty to do so.

C is for Copying, not ©

Copy and communicate all published works, yours, mine, everyone’s – to the far corners of the earth.

D is for Derivatives

See Originality.

Nothing is new under the sun. Nothing is 100% original. Everything is derivative in some way. Mankind progresses by building upon what has been done before – through exploration and improvement. There is no wrong in this. Develop derivative works of your own, however similar or dissimilar to those you’ve been inspired by.

E is for Enjoyment

Enjoy your natural liberty. Enjoy your own culture. Enjoy sharing in it with your friends. Enjoy sharing it with everyone!

F is for Funding

Feel free to fund my further work if you fancy more. Feel free to fund any artist whose work you would have more of.

Pay others for what you cannot or would rather not do yourself. Pay artists for their art. Pay printers for prints. If you can make your own copies and prefer to, do so. Ignore any state granted monopolies that prohibit such liberty.

Liberty does not mean artists work for nothing, even if monopolists may not profit so much. Even so, it may sometimes be prudent to give your work away to promote yourself, to win fans, and future funding. Free as in free speech, not as in free beer.

Copying is not a crime, nor does it pilfer pennies from the pockets of the poor – except in the eyes of those who covet copyright.

G is for Gutenberg

Gutenberg started the printing revolution. The Internet put the revolution into hyperdrive.

18th century privileges designed to quell sedition and piracy are running on empty.

Project Gutenberg is helping to demonstrate that paying authors to write novels is not precluded by ending the practice of purchasing books from those privileged by a monopoly or paying them for permission to print copies.

Copyright is a brake on the wheel of the communications revolution. Only the corrupt few can profit from the energy they sap, even as so much progress is lost as a consequence.

Set us free. Set our culture free. See how much faster we go.

H is for Honesty

Honesty is a moral obligation.

While you are at liberty to use any published work as you see fit, such liberty naturally excludes dishonesty, e.g. misattribution or misrepresentation.

As credit is a gift, and citing sources is a mark of respect (though fraught with peril today as it risks inviting copyright litigation), so appropriate attribution is up to you. A lack of attribution is not a priori dishonest. You have no moral obligation to provide attribution, but neither deceive your audience, nor be so neglectful that you cause confusion in this respect.

Misrepresentation would be where you might use an artist’s work in a way such that others are likely to incorrectly infer the artist endorses a product or political point of view.

It is in this aspect that moral rights can be identified and enumerated. Unfortunately, they tend to be corrupted by copyright-based thinking into yet another set of proprietorial privileges. For example, your moral right to integrity is not the power to veto changes another artist may choose to make to your published work, but the other artist’s moral obligation not to misattribute the changes they are at liberty to make to your work as yours, or authorised by you. It is a matter of truth, not of power over others (granted by the state).

I is for Intellectual Property

Intellectual work may be property, but copyright is an unnatural monopoly.

The intellectual work contained within the unpublished manuscript in your desk drawer is undoubtedly your intellectual property, but if you sell or give it to someone, or a copy thereof, it becomes their property – even if it is not their work.

The reproduction monopoly arising in an ‘original’ work, granted by the state, that empowers the copyright holder to sue infringers, is unnatural, nothing to do with property (except in attempts to corrupt the term), and hence an unethical derogation of an individual’s liberty – to copy or communicate that which they’d otherwise be at liberty to.

J is for Justice

Justice is expected through the instrument of government, but its privileges are instruments of injustice.

Wikipedia: Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few… They… consequently are instruments of injustice … The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

K is for Kickstarter

Kickstarter and other such marketplaces enable artists to exchange their work for money, not a state granted reproduction monopoly for a pittance from a publisher plus their over-hyped possibility of the ‘lottery prize’ they call royalties.

These marketplaces will become more numerous, more sophisticated, and will represent a return to the pre-copyright method of funding. Instead of monopoly profits, a few patrons, or millions of fanatic micropatrons, or simply, fans, will offer funds in exchange for the artist’s art. Art for money, money for art.

It’s not simply ‘give it away & pray’, whether giving away your art to your fans, or giving away your money to your favourite musicians, but as in any market, it’s about coming to an agreement, an equitable exchange.

Don’t forget though, caveat emptor and caveat venditor still apply.

L is for Learning

Learn is from leornian – to tread in another’s footsteps, to copy another’s path.

But, as modern dogma has it, ever since Queen Anne first let slip the pretext that copyright would result in the Encouragement of Learning, we will be more encouraged to learn from each other because we are prohibited from copying each other.

The first question that should spring to mind is “What kind of law is it, that must be preceded by an unfalsifiable excuse?”. What other law, whether it be against theft, violence, kidnapping, or fraud, must have its enactment preceded by a claim that it will be for society’s benefit?

Even copyright’s fiercest critics still accept its pretext, that its purpose is philanthropic, and that the privilege may continue to be judged upon its mythical benefit to society, despite the fact that we have not witnessed the supposedly dystopian society that has long existed with printing, but without the alleged benefit of a privilege prohibiting piracy on its statute books.

How do we know we are benefiting from copyright if we’ve never known what our culture could have become without it? How does a slave know they are benefiting from their master’s care if they’ve never known what it’s like to find employment in a free market? It’s not a matter of benefit, alleged or imagined. People instinctively recognise the liberty they are born with, and are driven by the imperative to exercise it. If some want to pretend they must ask permission for their liberty, that a need to obtain such permission benefits them, then let them indulge in such a pretence, but do not let the state visit such injustice upon all.

If you look into copyright, if you dare question its pretext, then you should learn that its origins were entirely mercenary, in the interests of the state – and the press it would have beholden, and obedient to it.

That copyright encourages our learning, and feeds poor starving authors to so enlighten us, is a fairy tale once told by a wicked queen, and her successors for three successive centuries.

If we all dare admit the empress is naked, her empire ends.

M is for Monopoly

There are three notorious state granted monopolies: Copyright, patent, and trademark. Each monopoly differs somewhat in its concern and modus operandi, however, whilst some may claim they protect natural rights they are wholly unnatural, being unethical privileges enacted for the benefit of the state and the enrichment of those who lobby for them.

Copyright is not designed to help the individual author against the theft of their unpublished manuscript. It is a monopoly provided for the wealthy and powerful publisher to police the marketplace against competition (pirate printers). Contrary to dogma, it does not encourage learning.

Patent is not designed to help to the individual inventor against the theft of their unpublished invention. It is a monopoly provided for the wealthy and powerful manufacturer to police the marketplace against competition (especially foreign). Contrary to dogma, it does not encourage innovation.

Trademark is not designed to help the individual against passing off by unscrupulous competitors. It is a monopoly provided for the wealthy and powerful merchant to police the marketplace against competition (better value for money imitations). Contrary to dogma, it does not protect the public against fraud.

N is for the Nature of Rights

If copyright encourages anyone to do any learning, it’s learning about copyright, learning about its origins, learning the reasons for its injustice, learning about rights, what they are, where they come from, whether they can be granted, bought, sold, or taken away, and who by, e.g. gods, queens, governments, ourselves, mother nature, or accident, etc.

Thomas Paine has written about rights, as have others over the millennia preceding copyright. Obviously, those interested in continuing to enjoy copyright, ‘The Copyright Cartel’ we might call them, have also written about rights – in these last few centuries since 1709.

Depending upon whose writing you read, you will either learn that it is your human right to prevent others making unauthorised copies of your published work, or that it is a right granted by Queen Anne, that may be bought, sold, assigned, licensed, reserved, waived, or any manner of other things. You will also learn that copyright is a good thing, or that it is a bad thing, or even that it is a ‘necessary sacrifice’ for the greater good.

If you don’t want to risk shifting paradigms, and prefer the comfort of ignorance, then stick to the dogma you thus know and love. If you realise there are problems relating to copyright, and want to know whether those problems are with the people who disobey it or the privilege that is used to prosecute them, then learn on.

I’ve written about rights before, recently, and may well do so again soon.

O is for Originality

See Derivatives.

Thanks to copyright’s inculcation, originality may now be a common artistic aspiration, and something copyright lawyers will pretend happens every day, but it is unobtainable. The idea that it exists can be legislated, but then the law is an ass, made so by asses. Of course it shouldn’t be legislated, nor should we wish it to be.

Further reading: The Perfectly Acceptable Practice of Literary Theft: Plagiarism, Copyright, and the Eighteenth Century

P is for Privacy, not Piracy

Privacy is the root of property, and the only natural right an author has to exclude others from their work. One cannot both publish and remain proprietor. In other words, one cannot include AND exclude someone. You cannot tell someone something AND deny them their liberty to tell it to others – much as you might covet such a power.

Predictably, publishers pretending proprietorship will perforce pejoratively proclaim as pirates those folk who would enjoy their natural liberty to make and distribute copies or derivatives – contrary to the usurping proprietor’s presumption of propriety.

Daniel Defoe was there at the beginning of both copyright and piracy, and may even have some posthumous resonance at their ending: shipwrecked in a pirate bay, and naming a party of pirates campaigning to cease copyright’s punishment of individuals who engage in fileharing.

I refer of course, to The Pirate Bay, and The Pirate Party. These are harbinger’s of doom, both for the privilege of copyright, and the idea that those who ignore it are delinquent pirates.

Q is for Queen Anne

Queen Anne established the privilege we call copyright in 1709 – the root of all laws that prohibit one person from copying another. From 500,000BC to 1708AD, Homo Sapiens developed into a civilisation through copying, learning, and improving upon each other’s work. From 1709 onwards, we suffer the legacy of a legislative misadventure, a privilege that should have been abolished along with slavery, not one that should have been re-enacted in 1790 by a government supposedly created to secure its citizens’ liberty and the ending of monopolies (such as established by Britain’s Tea Act).

R is for Reform

Reforms of copyright are generally proposed by those engaged in doublethink – that it is possible to have a monopoly and cultural liberty.

One of the most popular kinds of reform is that of term reduction. This is presumably based on a supposition that if copyright only prohibited the copying of a work for a decade or so, as opposed to a century or so, that people would be more likely to respect the 18th century privilege, obeying it, than to disrespect it, ignoring it.

Piracy has occurred before, and where the state has realised copyright is too clumsy or ineffective (but never unjust), it has introduced compulsory licensing. There are those who suggest this applies to the Internet, and so a compulsory license fee (or mulct) should be levied upon all who use it, to be disbursed to poor starving artists (aka publishing corporations and collecting societies) according to the proliferation of their work. This idea for reform has not gained much ground because no-one has yet figured out how to accomplish it without making it easy for people to see that 99% of the mulct ends up in the pockets of corporations rather than individual artists. Further reading: The nature of intellectual property in the mid-twentieth century

There is, as it happens, one reform of copyright that does make it possible to have a monopoly and cultural liberty. This is where individuals (persons born with liberty) are exempt from copyright, but corporations (artificial entities unethically recognised as persons by law) are not exempt. So, human beings enjoy their natural right to liberty, and corporations enjoy the monopoly they so enthusiastically lobby for.

Generally, copyright reform is a conceptual trap, a means of lumping together those who’d abolish copyright, with those who’d change or replace it, with those who’d extend and enhance it. Reform is always on the cards. The state will get round to listening to people’s concerns in due course – invariably producing legislation that panders to the concerns of the incumbent powers, not those of the subject populace, e.g. The UK’s Digital Economy Act

If you campaign for copyright reform, at best you campaign for nothing, but the status quo, at worst, for the ratcheting up of that which concerns you. Obviously, if you support copyright, ‘best’ and ‘worst’ should be interchanged.

S is for Software Freedom

Software engineers, notably Richard Stallman and the copyleft movement, have helped demonstrate that copyright is socially counter-productive and uneconomic – however lucrative to the few monopolists in a position to exploit it.

Unfortunately, copyleft has also created a perverse dogmatism that the privilege of copyright is necessary for software freedom. I try to present the arguments against this misunderstanding in Copyleft Without Coercion.

T is for Thomas Paine

Thomas Paine provides a good understanding of natural rights, and helps explain why privileges that annul natural rights in the majority (such as our right to copy) in order to leave them, by exclusion, in the hands of a few (copyright holders), are consequently instruments of injustice.

Also see Thomas Edison’s commendation The Philosophy of Paine

Tom Paine has almost no influence on present-day thinking in the United States because he is unknown to the average citizen. Perhaps I might say right here that this is a national loss and a deplorable lack of understanding concerning the man who first proposed and first wrote those impressive words, ‘the United States of America.’ But it is hardly strange. Paine’s teachings have been debarred from schools everywhere and his views of life misrepresented until his memory is hidden in shadows, or he is looked upon as of unsound mind.

We never had a sounder intelligence in this Republic. He was the equal of Washington in making American liberty possible. Where Washington performed Paine devised and wrote. The deeds of one in the Weld were matched by the deeds of the other with his pen.

U is for University

Universities are supposed to produce and disseminate mankind’s knowledge, not to hoard and guard it, martyring those who would disseminate it – such as Aaron Swartz.

Are you really sure copyright encourages our learning?

V is for Value, not Vendetta

Value is subjective, but don’t confuse the value of the work with the value of the copy. Artistic work is typically expensive and highly skilled. Copies are typically so inexpensive and easily produced that machines can make them by the million.

Pay artists to produce art. Pay printers to produce prints. But for your liberty to make your own copies, pay copyright holders nothing but contempt.

If someone has copied you (without dishonesty/plagiarism), or is selling copies of your work, they are promoting you and to be praised, not to be punished or otherwise persecuted – however much power to do so you imagine copyright says you deserve. Value the contributions of others, don’t be vindictive against them, nor wage vendettas against those the demon of copyright is persuading you are unfairly profiting from your hard work.

W is for Work

Work does not constitute entitlement to payment. One must find those who want the work done, who would pay for it. Being paid for your work is about finding an agreeable, equitable exchange in a free market. Your right is to be at liberty to do so, not to abridge the liberty of others to do so – who may be paid to add value to your work or build upon it.

X is for Xerox

Xerox marked the spot at which making one’s own copies became cheaper than buying them, the moment at which the fate of the 18th century reproduction monopoly became sealed.

Y is for You

You are naturally at liberty to copy – that which you have found, that which you have been given, or that which you have bought. Your natural imperative is to share and build upon your own culture – to ignore copyright. Your natural power and right to copy is in your own hands. That you have been fooled to believe it is instead in the hands of a copyright holder is within your power to remedy. You must snap out of this delusion.

Z is for Zygote

The zygote is a clue that copying and derivation is so much a part of nature that it is essential for the progress of life itself. To copy is in our genes. To copy is human.

That a prohibition on copying, the abridgement of our liberty, is necessary for mankind’s learning and progress, is the lie of all monopolists corrupted by power, from Queen Anne and James Madison to The Estate of Martin Luther King.

Whereas slavery takes all liberties from a few, copyright takes a few liberties from us all.

Learn about liberty, your liberty to learn through copying, your cultural liberty.

The abolition movement continues…

A Crescendo of Copyright

Natural Finale and Reprise

Rejected by The Rethink Music Conference, April 2011, Berkman Center for Internet & Society, Harvard University

Abstract

• A prologue – mankind’s culture and copyright in perspective

Copyright’s 18^th Century Overture

• 1709 Queen Anne’s privilege of copyright
• 1787 the philosophy of Paine and the (natural) rights of man
• 1790 the prestidigitation in which a privilege is inveigled as a natural right

Copyright’s Confrontation with Cultural Liberty reaches a crescendo

• C19-20 the printing industry’s exploitation of its privilege
• 1990s the propertisation of published intellectual works as an entrenchment
• 2000s the piracy of published intellectual works as a natural liberty
• 2010s the persecution of the people for their piracy (cultural liberty)

Copyright’s finale, and the reprise of natural rights

• 20?? the prospectus for mankind’s future

Prologue

The extent of mankind’s primordial cultural activity stretches back at least half a million years, but thanks to repeated erasure by glaciation we start the notable cultural events calendar at 50,000_BC.

51,709 years later a nascent empire and its pampered press have the impudence to decide that mankind’s cultural commonwealth would be so much better if a law was created to prohibit people from copying each other.

There are a few words for the precursory, unbridled cultural intercourse that still remain in the English language, though they are almost obsolete: ‘folksong’, ‘folkmusic’, ‘folktales’, and ‘folklore’. These primeval springs are still known to a few among us and can be found seeping through the pre-renaissance foundations upon which our modern culture stands.

Today we have the luxury of looking back over the last three centuries of ‘protection’ to see how much richer our culture has become, being effectively manacled and enclosed by corporations such as Disney. Permitted the liberty only to create purely original works, albeit with some tolerance for cultural cross contamination (if not too flagrant), we enjoy a far more creative and diverse culture. Or rather, this is what Queen Anne’s Stationers’ Guild and its descendant publishing corporations would persuade us is the consequence of her wise enactment of law to ‘protect’ published works from the grubby hands and mouths of the great unwashed.

Nothing to do with the printers’ monopolies then…

Let us see the historical accident of copyright in perspective:

65,000,000BC	Primates
2,000,000BC	Homo Erectus
500,000BC	Division into Neanderthal & Homo Sapiens
200,000BC	Homo Sapiens’ ancestral basis
140,000BC	Glacial retreat after 40,000 year long glacial period
50,000BC	Dawn of mankind’s culture: language, music, drawing, etc.
32,000BC	Cave paintings
30,000BC	Neanderthals extinct
20,000BC	Glacial retreat after 50,000 year long glacial period
17,000BC	Lascaux Cave Paintings
10,000BC	Holocene – modern epoch
9,000BC	Jericho
8,000BC	Stonehenge site’s significance
3,100BC	Stonehenge construction begins
2,611BC	First Egyptian Pyramid
753BC	Foundation of Rome
300BC	Library of Alexandria
48BC	Library of Alexandria accidentally destroyed by Julius Caesar
300	Book format outnumbers scroll format
1282	Water powered paper mill
1403	Corporation of London forms Stationers’ Guild
1440	Development and use of printing press begins
1492	Europeans discover New World
1536	Erasmus dies – 750,000 copies of his works sold
1557	Stationers’ Guild granted control over all printing
1572	Fall of Inca Empire
1695	Stationers’ Guild loses control upon expiry of the Licensing of the Press Act 1662
1703	Daniel Defoe endorses commercial piracy of his work – if true copies
1709	Queen Anne Establishes the Privilege of Copyright
1787	US Constitution
1790	Madison re-enacts Statute of Anne (tweaked for the US)
1791	Thomas Paine deprecates privileges
1814	Steam powered printing press
1837	Babbage designs Analytical Engine
1937	Relay computers
1943	Valve/Tube computers
1953	Transistor computers
1969	Internet begins with two nodes
1971	Microprocessor computers
1991	World Wide Web begins
2000	The people obtain the means of mass reproduction and communication
2010	The successors to the Stationers’ Guild seek possession of the Internet via ACTA
2011	Copyright recognised to be ineffective vs the people’s cultural liberty/piracy
2015??	Copyright is reformed to exempt individuals in the digital domain
2020??	Copyright is reformed to exempt individuals
2025??	Copyright is reformed to exempt the digital domain
2030??	Copyright is repealed
2031??	The author’s exclusive right to their writings is properly secured at last – ethically

Seen in a proper perspective, copyright is a legislative misadventure borne of political expediency and commercial self-interest. It is a hiccup in mankind’s history and, in the face of the diffusive nature of information, is coming to an abrupt and natural end.

The future of our culture is one without copyright. It is already dissolved in effect. In terms of law, the precise dates of its repeal are a minor detail. Cultural liberty is in the power and the hands of the people and if not also legislatively restored to them they will throw off Queen Anne’s manacles and revolt against persecution by her now immortal publishing corporations.

18^th Century Overture

Privilege

In 1695 the ‘Licensing of the Press Act 1662’ expired, and in the next decade the Stationers’ Company lobbied for a restoration of their control over all printing and their ability to enforce their established printing monopolies.

With the prospect of rampant sedition looming from an uncontrolled press Queen Anne was persuaded to institute the privilege of a reproduction monopoly in each distinct literary work (Statute of Anne 1709). Although this wasn’t an explicit restoration of control over the press to her Stationers’ Company, it was effectively equivalent. Given that the reproduction monopoly would arise in each original work, it would initially be in the hands of the author (albeit impotent to enforce it) and thus enabled the pretext that this was taking power from the press and putting it back with the author.

Principle

Natural rights are the necessary and imperative abilities/powers that an individual is born with, and all are supposed to have in equal measure: life, privacy, truth, and liberty. Being natural, rights must be self-evident. They are not granted by man himself, but are recognised by all and to be protected by all, especially by any governments that are created to secure them.

It should be self-evident that a human being has a natural right to life – that it is not a privilege or unnatural right granted by the state’s legislature (viz ‘legal right’). Rights precede legislature, not vice versa.

A human being has an innate ability, necessity and imperative to preserve their life, but this is bounded by others’ equal right to their lives. Barring highly peculiar and exceptional circumstances, one person’s life does not depend upon impairing that of another. An equal right to life follows from an inference that an egalitarian society is more harmonious and optimal for human beings as a civilisation than one riven by warfare, inequality, and ‘survival of the fittest’.

Privacy, or the right to exclude others, follows from an individual’s innate ability and necessity to exclude others from the spaces and objects that they possess, occupy, inhabit or can otherwise secure. Human beings may operate better in a harmonious society, but that doesn’t mean all human beings have a disposition toward harmony. An individual needs privacy as a measure of safety and security for their dwelling, family, and possessions necessary for survival – against threats from their less social fellows. Privacy is also necessary for the purpose of exchange, i.e. commerce.

Truth, or the right not to have one’s ability to apprehend the truth be impaired (a right against deceit), is necessary and vigorously pursued to protect rights and harmonious exchange (against fraud – inequitable/involuntary exchange). If life and privacy are necessary and rights, so is the truth of whether either was violated and by whom.

Liberty, or the freedom to do anything, countered by others’ defence of their rights, where only actions that violate others’ rights have repercussions from any government created to secure them, follows from an individual’s innate need and ability to understand, explore, and improve their environment, society, and selves.

The concept of natural rights is ancient. Indeed, it is only the corruption of our language by familiarity with legally granted ‘rights’ over the last century or so that the word ‘right’ now needs qualifying with ‘natural’ to indicate that it is the original meaning of ‘right’ that is being referred to rather than privileges that annul rights in the majority to leave them by exclusion in the hands of a few, i.e. legislatively created rights, ‘legal rights’, or just ‘rights’.

This is what Thomas Paine had to say on the matter of natural rights vs those pretended as granted:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few. If charters were constructed so as to express in direct terms, “that every inhabitant, who is not a member of a corporation, shall not exercise the right of voting,” such charters would, in the face, be charters not of rights, but of exclusion. The effect is the same under the form they now stand; and the only persons on whom they operate are the persons whom they exclude. Those whose rights are guaranteed, by not being taken away, exercise no other rights than as members of the community they are entitled to without a charter; and, therefore, all charters have no other than an indirect negative operation. They do not give rights to A, but they make a difference in favour of A by taking away the right of B, and consequently are instruments of injustice.

Thus, paraphrasing, we can see that the right to copy a work, or to exclude others from copying it, is not a right granted by law, but a right abridged or annulled by law, a privilege.

• The right to copy a work is inherently in all the inhabitants; but charters, by annulling that right, in the majority, leave the right, by exclusion, in the hands of a few – the copyright holder. Such a privilege is consequently an instrument of injustice.

We can observe that an author has a natural right to exclude others from works in their private possession, whether reading or copying them, but this is by dint of their right to privacy. That privacy does not attach to the object of the work or any copies made. It is a right of the individual possessing or occupying it. Once it is voluntarily relinquished by the author from their private possession, once it has been given or exchanged by the author into the private possession of another, then it is the private possession of the recipient. The recipient has a natural right to do with their possessions what they will. Even if they have agreed to return a possession in its original condition after a specific period, this still cannot alienate the individual from their liberty to perform those actions they are self-evidently at liberty to perform, e.g. to study, exhibit or make a copy of a possession.

There are those who will argue that from a utilitarian perspective it is just for a government to abridge its citizens’ liberty if by so doing it will result in some greater benefit, e.g. learning or progress. However, aside from this as little more than post facto endorsement of the pretext for enacting the instrument of injustice, as effective support for lucrative monopolies and the state’s desire to moderate public communications (sedition), it is difficult to see how an expensive system of suppressing people’s liberty to exchange and improve mankind’s knowledge and culture can have the opposite effect. Creating a Stationers’ Company and granting it control over cultural exchange, and latterly instituting an equivalent privilege, may well be lucrative to those able to exploit such privileges, and in the interests of those who would have cultural exchange controlled, but it is not in the interests of the people and their liberty (ability and imperative) to progress their own knowledge and culture.

Today we observe that those notionally delinquent individuals who succumb to the imperative of their cultural liberty, and assert their ability to share and build upon their own culture, are known as pirates, and in these times face bankruptcy or imprisonment – injustice in which the privilege of copyright is instrumental.

Prestidigitation

In 1787 the New World, to become known as the United States of America, drafted and ratified a constitution, a recognition of inhabitants’ natural rights and the empowerment by those individuals of a government created to protect them.

As Thomas Paine says on the matter of individuals and their rights preceding government:

It has been thought a considerable advance towards establishing the principles of Freedom to say that Government is a compact between those who govern and those who are governed; but this cannot be true, because it is putting the effect before the cause; for as man must have existed before governments existed, there necessarily was a time when governments did not exist, and consequently there could originally exist no governors to form such a compact with.

The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

What has Thomas Paine and the concept of natural rights got to do with the US Constitution? This is what Thomas Edison wrote on the matter in 1925.

From the Thomas Paine National Historical Association

The Philosophy of Paine

by Thomas A. Edison, June 7, 1925

Tom Paine has almost no influence on present-day thinking in the United States because he is unknown to the average citizen. Perhaps I might say right here that this is a national loss and a deplorable lack of understanding concerning the man who first proposed and first wrote those impressive words, ‘the United States of America.’ But it is hardly strange. Paine’s teachings have been debarred from schools everywhere and his views of life misrepresented until his memory is hidden in shadows, or he is looked upon as of unsound mind.

We never had a sounder intelligence in this Republic. He was the equal of Washington in making American liberty possible. Where Washington performed Paine devised and wrote. The deeds of one in the Weld were matched by the deeds of the other with his pen. Washington himself appreciated Paine at his true worth. Franklin knew him for a great patriot and clear thinker. He was a friend and confidant of Jefferson, and the two must often have debated the academic and practical phases of liberty.

I consider Paine our greatest political thinker. As we have not advanced, and perhaps never shall advance, beyond the Declaration and Constitution, so Paine has had no successors who extended his principles. Although the present generation knows little of Paine’s writings, and although he has almost no influence upon contemporary thought, Americans of the future will justly appraise his work. I am certain of it. Truth is governed by natural laws and cannot be denied. Paine spoke truth with a peculiarly clear and forceful ring. Therefore time must balance the scales. The Declaration and the Constitution expressed in form Paine’s theory of political rights. He worked in Philadelphia at the time that the first document was written, and occupied a position of intimate contact with the nation’s leaders when they framed the Constitution.

Certainly we may believe that Washington had a considerable voice in the Constitution. We know that Jefferson had much to do with the document. Franklin also had a hand and probably was responsible in even larger measure for the Declaration. But all of these men had communed with Paine. Their views were intimately understood and closely correlated. There is no doubt whatever that the two great documents of American liberty reflect the philosophy of Paine.

contd.

So what are we to make of a US Constitution that reflects the philosophy of Paine, yet is invariably cited as sanction to grant the privilege of copyright – an instrument of injustice?

As The Berkman Center for Internet & Society at Harvard University notes in its call for papers :

Article I, Section 8 of the United States Constitution empowers Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In response, Congress created copyright, patent, and trademark law and thus established a framework to govern the protection and exploitation of creative works.

The obvious question to be asked is not whether Congress did create copyright, but whether it was empowered to do so. In any case, it didn’t create copyright, but simply copied the Statute of Anne, changed a few words, and passed it as a fait accompli.

However, one should observe in passing that this typical use of the term ‘protection’ is protection of creative works only in the sense that those works are able to be ‘protected from being copied’ by a privilege that annuls that right in the majority of the inhabitants. Works aren’t actually harmed by copying, so this is a strange use of ‘protection’, a use more appropriate to protecting a monopoly than protecting an object from damage.

As to ‘exploitation’, if one has lost the liberty to copy a work then one has lost the ability to exploit that liberty, e.g. a carpenter denied the liberty to copy a chair can no longer exploit his skills at making and selling reproduction furniture.

So in response to the Constitution’s recognition of the author’s exclusive right to their writings, Congress has instead granted the privilege of a transferable reproduction monopoly for exploitation by the press – industrial, mass producers of copies.

It is remarkable how easily people mistake power to secure a right as power to grant a privilege, power to annul a right.

How on earth does power to grant a privilege derive from the power to secure an individual’s exclusive right to their material and intellectual works?

It doesn’t. The power is assumed. See Paine:

All power exercised over a nation, must have some beginning. It must either be delegated or assumed. There are no other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.

The Constitution does empower the granting of certain privileges, but being instruments of injustice, only against enemies in times of war:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

A ‘Letter of Marque’ is the privilege of being able to seize property from an enemy in time of war. Congress is empowered to grant that privilege. It is not empowered to grant copyright, The Statute of Anne. Though as we know, it assumed the power, and did so – in 1790.

• (Natural) Rights are secured. Privileges are granted.
• An author’s exclusive Right to their writings is secured.
• An army general is granted a Letter of Marque to seize an enemy’s property.

Congress is empowered to secure an author’s exclusive right, or grant letters of marque. It is not empowered to grant authors a privilege that annuls everyone’s right to copy the author’s works in their legitimate possession. NB Copyright even annuls the author’s right to copy their own works, as they discover when they transfer the privilege into the hands of another – typically a publisher.

A constitution that instructs and empowers a government to protect the liberty of its citizens can hardly simultaneously instruct and empower it to enact privileges that derogate from its citizens’ liberty. It may grant privileges that derogate from the privacy and derived property rights of its enemies, perhaps, but not from the rights of its own citizens.

• Securing a right cannot require annulling another right. A priori, rights do not conflict.

Within their natural right to privacy, an author has a natural exclusive right to their writings. They have a self-evident right to exclude others from copying the writings in their private possession. This right can be secured by law without granting authors any further reproduction monopoly (over production of copies of published works). Authors have a natural monopoly to their private works, and it is this monopoly, and only this monopoly (to which the author has a natural right), that Congress is empowered to secure. Moreover, it should be secured for a time limited to that of the author’s life (or at most their expected lifespan – to deter murder as a means of obtaining an author’s writings).

How then can this ‘progress’ clause in the Constitution and the granting of copyright be reconciled?

James Madison had an affinity for the privilege of copyright, was enamoured of its advantages, and sought to provide Congress with the power to grant it, but recognised that such power could not be provided explicitly. Only the power to secure a right could be specified, not the power to grant such an illiberal privilege. For such granting Congress would have to infer and assume power. Madison foresaw little problem in doing so, as it was he who would likely be the one to enact the privilege of copyright. The clause was phrased as the securing of a right only in order to avoid offending other framers who would ratify the Constitution, who might cleave a little more rigorously to the philosophy of Paine and reject explicit Constitutional sanction to grant copyright. Madison wasn’t exactly shy of assuming power not explicitly provided, as he wrote in the Federalist N°44 that “No axiom is more clearly established in law or in reason than wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power for doing it is included,”. Thus in the case of copyright we can conclude that if Congress was empowered to secure an author’s exclusive right, and Madison felt that annulling the people’s right to copy works in their legitimate possession was necessary to do this, then he had power to do so and could thus enact the privilege of copyright. But, of course, copyright is not necessary, but an assumption of unsanctioned and unsanctionable power to abridge the people’s cultural liberty. Copyright doesn’t even secure the author’s exclusive right, as it enables only a wealthy copyright holder to pursue any burglar or receiving printer, and only then should they actually produce illicit copies.

In Federalist N°43 Madison wrote:

1. A power “to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.”

The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.

• “The utility of this power will scarcely be questioned.”

Madison is effectively saying “As we have seen in the old country and in those states that have already granted them, monopolies are most lucrative to those of our acquaintance who would continue to enjoy them.”

If the utility of power constituted a warrant, then one could equally argue that power to legislate slavery privileges was also warranted on a utilitarian basis.

• “The copyright of authors has been solemnly adjudged in Great Britain, to be a right of common law.”

Madison is effectively saying “The people are thus empowering Congress to secure their natural right (not to grant a privilege such as the military instrument we term ‘Letters of Marque’).”

Madison’s work in the Virginia state legislature (1776–79) no doubt informed him of Donaldson v Beckett (1774), the ruling in the House of Lords that denied the continued existence of a perpetual common law copyright and held that copyright was a creation of statute and could be limited in its duration.

As we know later in Wheaton v. Peters (1834), John McLean, who himself had publishing experience as the founder of an Ohio newspaper, wrote the opinion of the Court. In it, he declared that while the common law undoubtedly protected the right to one’s unpublished writings, e.g. a diary, personal letters – “this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world.”

So Madison is at best uninformed when he claims that copyright is a right of common law. The author has a natural exclusive right to their writings indeed, it is self-evident, but this is categorically different from Queen Anne’s grant of a reproduction monopoly – a privilege and instrument of injustice.

Power to secure the natural right is not power to grant a commercial privilege.

• “The right to useful inventions seems with equal reason to belong to the inventors.”

Madison is effectively saying “A patent is as much a monopoly as copyright, but we’ll sanction them both with the plausible deniability obtained through Britain’s apparent recognition of copyright as a natural right.”

Nothing is so obviously a grant of monopoly as a patent, but to avoid that taint, Madison relies upon the misdirection that copyright is a natural right in order to sanction patents on the same basis (induction through similarity).

It is a pity that copyright’s similarity to patents didn’t instead invalidate copyright, on the grounds that monopolies were among the greatest nuisances in government (though lucrative to their recipients, and in the interests of the state granting them). As Madison said to Jefferson in 1788:

“With regard to monopolies they are justly classed among the greatest nuisances in government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the public to abolish the privilege at a price to be specified in the grant of it? Is there not also infinitely less danger of this abuse in our governments than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many not in the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.”

Madison recognises that a monopoly must sacrifice the liberty of the many to the few, as Paine similarly observes that a privilege annuls the right in the majority to leave it by exclusion in the hands of a few. However, despite recognising this, Madison did not have the Constitutional clause specify such a sacrifice. Madison simply infers it when he later comes to re-enact the Statute of Anne and patent law – notably, quite different sets of legislation; one concerned with provenance (copyright) and the other with similarity (patent).

• “The public good fully coincides in both cases with the claims of individuals.”

Madison continues the utilitarian mandate by effectively saying “Queen Anne used the pretext that granting such privileges would be good for the learning of her subjects, so we’ll elaborate in terms of progress to science as well as the useful arts.”

Yet, despite this allegation that monopolies are good for the people, Madison recognises that monopolies are sacrifices by the many, which is diametrically opposed to the idea that the public good (allegedly so promoted) coincides with individuals’ claims. Individuals may well covet monopolies, but the majority would also have their liberty intact and secured by the government, not abridged in sacrifice for the enrichment of a few.

• “The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.”

Madison understands monopolies only too well in observing that “Obviously these grants of monopoly cannot be properly exploited unless they are enforceable in ALL states”.

So, I suggest we can conclude that Madison was enamoured of the old world’s copyright and patents, and wished to have them legislated for the US, but having to operate within the strictures of Paine’s natural rights philosophy had to limit the Constitutional clause to the securing of the individual’s natural exclusive right (to writings/designs). He was confident this would enable Congress to assume the power to grant the privileges.

However, not all were so confident. Thomas Jefferson observed that monopolies would need explicit granting via an amendment, and so in his letter to Madison in 1789 suggested this could be achieved via the Bill of Rights Madison was producing:

— Art. 9. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding — years but for no longer term and no other purpose.

Madison no doubt realised that explicit sanction for monopolies could more easily be undone, than the power he was intending to assume to enact them – so he did not add this power to grant monopolies to the Bill of Rights.

Moreover, unlike Letters of Marque, and in accord with the philosophy of Paine, the Constitution could not empower Congress to grant monopolies such as Queen Anne’s privilege of Copyright. It could only empower it to secure an individual’s natural exclusive right to their writings. This is why the Constitution is worded as it is.

The people did not create a government to abridge their liberty in the state’s interest to suppress sedition and the printers’ interest in lucrative monopolies, but to protect them and their liberty.

• The granting of copyright was unconstitutional.

In 1790 Madison/Congress assumed the power to grant the monopolies of copyright and patent, thus annulling in the citizens their right to copy literary works, and their right to produce designs similar to those registered for ‘protection’.

The author’s exclusive right to their writings and the inventor’s exclusive right to their designs, as recognised by the Constitution, remained unsecured by legislation.

In the next two centuries publishing and industrial corporations in old world and new would learn how to exploit the instruments of injustice they had been granted by crown and Congress, and in the US, how to insinuate copyright as the natural exclusive right specified by the Constitution in what is consequently referred to as the ‘copyright clause’.

A Crescendo of Copyright

Printing

In the 19^th and 20^th centuries, the golden age of the industrial revolution, the industrial mass production and public communications technologies dramatically advanced.

As these technologies advanced and became ever more economic, the means of production and communication ended up more and more in the hands of the general populace. From photocopiers and tape recorders, to computers and Internet access, the majority had the means to reproduce and took back their liberty to infringe upon the monopolies of the few. Though of course, this infringement was as much a surprise to the naïve proletarian as would have been their breach of etiquette at the royal court. It takes time to learn that one can infringe crown granted privileges in the privacy of one’s home.

Technological advancement made everyone a producer (of designs, software, etc.) and everyone a publisher (of words, music, and now video). But then, we have always been toolmakers and storytellers, advancing and sharing our craft. This is man’s nature. The only new thing in recent times has been the introduction of a law to prevent it.

The means of literary communication to the public went from large, sparse and controllable presses to tiny, ubiquitous, and uncontrollable Internetworked computers.

The end of this period is when the people discover that their cultural liberty, their right to copy and build upon published works, has been annulled. It is also the period when software engineers discover their technological liberty, their right to develop and utilise algorithms (coincidentally patented), has been annulled.

Being told that these rights have been sacrificed and annulled for the greater good, in a social contract made in centuries gone by, can only go so far in allaying public disquiet. The sense that something is rotten in the state of Denmark can only increase, and increase in direct proportion to the efforts of those who would enhance the enforcement of these privileges, these instruments of injustice.

How many innocents must be threatened with bankruptcy? How many who enjoy their cultural liberty must be imprisoned for piracy?

Propertisation

As miniaturisation put more and more reproduction and communications technologies into the hands of the general populace so the privileged press lost their effective monopoly, even as they strove to reinforce the legislation that protected it.

It was only toward the end of the 20^th century that publishing/industrial corporations were migrating their vernacular from terms of copyright and patent (esoteric privileges), to intellectual property.

‘Property’ has a resonance with the natural exclusive right of possession that all individuals instinctively recognise. How much better to spin the protection of monopolies as the protection of property, and how convenient to reiterate the insinuation that to secure an exclusive right is to enforce one’s privilege of copyright?

That copyright is property only in the sense that it is a transferable privilege, and that those lobbying for ever greater enforcement are immortal corporations, are embarrassing details to be elided from the public consciousness.

The inevitable reaction to the ubiquity of reproduction technologies is to spin monopoly vs liberty into property vs theft.

And it’s working. Artists are jealously demanding the public respect their intellectual property. Just as the same artists may have once demanded the artistic freedom they are unwittingly denying to others. What these copyright indoctrinated artists fail to realise is that they have been co-opted into the publishing corporations’ marketing campaigns to further reinforce the penalties for copyright infringement (or inducement/facilitation thereof). One artist’s freedom is another publisher’s infringed monopoly. So that artistic freedom is rebranded as theft and the monopoly is rebranded as the artist’s property (dutifully cared for by their publisher).

Today the people’s cultural liberty is the property of the privileged corporation, and the corporation predictably intends to continue gripping it tightly with their incorporeal hands for periods beyond any mortal lifespan – and it absolutely will not stop.

But, as we know, the corporation is a paper tiger, as ephemeral as the legal artifices it lays claim to.

It is people who have real property, and that real property, whether material or intellectual, is defined by physical possession, by the physical boundary of the individual’s private domain and the agreements they make with others (agreements that cannot surrender inalienable liberty). Governments are to secure the individual’s exclusive right to their material and intellectual property, not to abridge it in favour of immortal publishing corporations – whatever the platitudes or pretexts otherwise.

To claim that copyright constitutes property is to compound an injustice with a calumny.

Piracy

The first use of ‘pirate’ was in their blessing

According to the Oxford English Dictionary one of the first uses of the term ‘pirate’ to describe free reproduction of a published work was penned by Daniel Defoe:

1703 D. Defoe True-born Englishman in True Collect. I. Expan. Pref. sig. B3v, Its being Printed again and again by Pyrates.

It’s almost as if by such selective quotation the OED prefers people to interpret Defoe’s sentiments as “Help! The blighters are pirating my poem! Call the navy!” But, then how could the Oxford University Press possibly be biased in support of copyright and against piracy? Is a university in the business of disseminating knowledge for the benefit of mankind, especially the taxpayers who fund it, or in commercially exploiting its reproduction monopolies?

In 1701 Daniel Defoe published The True-Born Englishman, and then in 1703 in a later edition included an explanatory preface:

As to Answers, Banters, True-English Billinsgate, I expect them till no body will buy, and then the Shop will be shut. Had I wrote it for the Gain of the Press, I should have been concern’d at its being Printed again and again, by Pyrates, as they call them, and Paragraph-Men: But would they but do it Justice, and print it True, according to the Copy, they are welcome to sell it for a Penny, if they please.

So, rather than making a furious complaint, Defoe appears to be saying “If my motive in writing this was to sell it to a printer in exchange for their ‘protected’ royalty, I would have been upset at any illicit reproduction. Instead, people are welcome to sell it for a penny a copy, as long as those copies are fair.”

It sounds like Defoe had a good grasp of a more principled approach to publication. Perhaps we might even deduce that Defoe was the first author to welcome pirates as good for publicity and promotion?

He goes on to recognise that commerce is the objective of pirates, and supposes that if no-one buys then no-one will write. But he then sardonically suggests that this would mean that none of his detractors would publish their response, given no money in it – insinuating his detractors put money before principle.

Defoe therefore effectively recognises that for some purposes some people will write irrespective of reward (and that for others they will not).

To learn is to copy

In her statute of 1709 Queen Anne suggested that prohibiting free copying would encourage the learning of her subjects, and yet this is a contradiction in terms.

Learn, from Old English leornian, Proto-Indo-European *leis- “track.” and Old English læst “sole of the foot”, means to find the track, to tread in another’s footsteps, to copy another’s path.

Gary McCallister puts it a little more poetically:

The plains in their sameness and the forests with their obstruction of sight presented challenges for these sea faring men. As they ranged farther from their beach establishment they sometimes became disoriented and finding their way was difficult. But there is an advantage to the land that the sea does not possess. Their passing leaves a mark on the land: a footprint, a broken branch, a scratch on a rock. By carefully following the tracks that they, or their fellow explorers, had left behind they could find their way again to distant places, or home.

Of course, as they followed one another’s footprints through the forests and meadows the trail soon became clear, then worn, and eventually a depressed path, almost a furrow, marked the way to travel. Their word for footprint, track and furrow was “leis”, obviously taken from “lea”, the word they used for the forest clearing, because a track provides information, similar to shedding light on a subject. They also had a special word that meant to follow the track, to benefit from the knowledge of those that came before, to memorize the way, to study out the way to go. They called the process “leornian”, or “lernen”, the word that became our modern word to “learn.”

As the paths became established, one who had traversed the way many times could describe them to someone who had not been there. Of course, the traveler wouldn’t describe every step, which would be too confusing. But the experienced traveler could tell the major landmarks, where to turn at branches in the trail, about how far to go before you would expect to see the next landmark. Eventually there came to be many paths in the land. Some were worn into deep furrows; some were barely visible except to the sharpest eyes. Some went to one place and some to another. But, of course, hearing about the trail isn’t the same as walking the trail. Knowing where you want to go is the most important step. In the end, if you really want to know, you have to go.

To learn is to copy. We learn by copying. We learn to speak by copying. We learn to write by copying. We (and now computers) communicate by copying.

To engage in cultural intercourse is to copy and share knowledge. To progress is to copy and improve or build upon it.

To encourage learning one must encourage copying. Queen Anne’s pretext for copyright is as corrupt as her statute, concerned with self-preservation not her subjects’ education.

To promote progress one must encourage copying and improvement.

Madison’s aspiration for progress in his Constitutional clause may have appeared noble, but his subsequent legislation of privilege was ignoble and contradictory.

One does not create a privilege to prohibit what is not only fundamental to mankind, but essential to life itself, i.e. DNA is about free copying and improvement – the free and natural selection of what best survives.

Privileges are parasites upon a civilisation and they arise because a burgeoning industry can afford them and those who would be enriched by them can ‘persuade’ legislators to grant them.

Privilege doesn’t help promote progress. Progress helps promote privilege.

Persecution

As the immovable edifice that is the anachronistic privilege of copyright encounters the unstoppable tide of a populace possessing the means and cultural instinct to engage in cultural activities that infringe it, we can not only expect continued extension and expansion of the privilege, but ever greater attempts to mutate infringements of the privilege, via propertisation and theft, into crimes against those incorporeal persons we call corporations.

We are already familiar with the two most widely reported cases of music industry litigation vs culturally liberated individuals selected for that litigation.

• Joel Tenenbaum was just 22 when Sony BMG first contacted him in 2005. He was accused of sharing 31 music files in 2007, found liable for damages of $675,000 in 2009, reduced ten fold in 2010, and with the damages being appealed, this case is still mouldering along.

• Jammie Thomas-Rasset was 28 and a mother of four when the RIAA first contacted her in 2005, sued in 2006 for sharing 24 music files, was found liable for damages of $1,920,000 in 2009, reduced then increased, and this case is still mouldering along.

It is six years on from 2005 and two human beings have had their lives turned upside down for enjoying their liberty and right to copy contrary to its 18^th century suspension (in favour of immortal corporations who have a fiduciary duty to take all necessary measures to continue exploiting this lucrative privilege). And these two are just the tip of the iceberg compared to the many thousands of unsung victims who settle out of court in fear. This is the protection racket that copyright has become, from protecting a monopoly, to protecting/extorting naïve individuals against prosecution for taking natural liberties – “Pay us $2,000 and we’ll protect you against our members who will otherwise sue you for $2,000,000 for sharing music to which they hold the copyright”.

Apparently human beings are not supposed to compete with publishing corporations in the exchange of cultural works. People, those natural beings that created a government to protect them, are instead being persecuted by it thanks to its unethical and unconstitutional creation of two legislative artifices: a privilege and a corporation.

If we create quasi-persons by recognising paper as flesh and not only recognise them as our equals, but elevate them with superior quasi-rights by derogating human rights into privileges, we have created monsters, not servants of we the people, but our masters.

Our surprise should not be at how youngsters have an insatiable desire to share music, but why so many readily believe it to be delinquency – theft from privileged corporations, our cultural overlords, rather than instinctive cultural exploration and engagement.

The Register published the following article in September 2010:

Harrow flicks pirate thrown in slammer

A man from North-West London has been jailed for six months, after admitting to fraudulently filming Hollywood movies at a Vue cinema and then distributing the wares illegally online.

Emmanuel Nimley, 22, of Lincoln Road in Harrow, used his iPhone to take fuzzy recordings of The Crazies, Alice In Wonderland and The Green Zone before he was caught and arrested by police for filming The Bounty Hunter in March this year.

In August Nimley pleaded guilty to 10 charges under sections six and seven of the 2006 Fraud Act, and section 107/1(e) of the 1998 Copyright Designs and Patents Act.

It’s not the first case of its kind, as there have been recent successful court actions against the recording of films in UK cinemas, after prosecutors cited the Fraud Act. However, the Federation Against Copyright Theft (FACT) claimed it was the first time someone had been handed jail time for such an offence in Blighty.

“It may be suggested in some quarters especially among young people that this is harmless fun and film in the cinema is fair game,” said Judge John Anderson of Harrow Crown Court, who sentenced Nimley on 17 September.

“It is not. Your action was a deliberate cheat on the film companies and the film industry. Fraudulently making and distribution of copies for whatever purpose and whatever quality has the effect of depriving the film industry of revenue.

“In current society it’s difficult to imagine an audience wider than the internet having access to such illegal material. Your dishonesty strikes at the heart of that industry.

“This was deliberately planned and carefully executed offending which I have no doubt would have continued if you had not been caught.”

Nimley, who uploaded his poorly-recorded bounty of films onto a website called quicksilverscreen.com, did not actually make any money out of his fraudulent venture, the judge noted.

The UK’s Cinema Exhibitors’ Association’s boss Phil Clapp applauded the sentencing.

“For a long time now, the industry has been lobbying Government for a specific camcording offence. At the same time however, we have been working with colleagues in FACT and various Government Departments, to bring film thieves to book under the existing Fraud Act legislation,” he said.

“The sentence handed down to Emmanuel Nimley, and the judge’s unequivocal condemnation of the impact of film theft, is hugely welcome. I congratulate colleagues at FACT and at Vue Entertainment who worked so had to achieve this result.”

As we previously reported, the CEA and other flick industry bodies have complained that the UK government lags behind Europe and the US because there’s no specific legislation that can be used in a charge such as the one against Nimley.

This comment shows just how confused even the judiciary is by Queen Anne’s privilege of copyright:

“Fraudulently making and distribution of copies for whatever purpose and whatever quality has the effect of depriving the film industry of revenue”

There was no fraud, no dishonesty, no plagiarism. Emmanuel Nimley never pretended his inferior iPhone copies were anything they weren’t. And since when has providing a cheaper albeit inferior alternative product to the marketplace warranted a prison term? Are potential customers now also to be ‘property’?

This is not justice, but injustice. It is not a government protecting its citizens’ liberty, but a government further corrupting its legislature and judiciary to protect its corporations’ monopolies. In turn these immortal corporations are using their instruments of injustice to persecute mortal citizens, as if perhaps they hope to at least educate them out of their delinquency to become upstanding consumers of content (from only licensed producers).

While copyright remains on the statute books, while it continues to annul the people’s right to copy, the people will be at odds with it and those entities that would enforce it – ever more jealously.

Queen Anne’s unnatural artifice and King Canute’s sandcastle of copyright will be repeatedly reinforced and its enforcement will increase in intensity.

The natural tide of the people’s liberty and cultural diffusion is rising and the folk will once again resume sharing their song and tales, their mp3 music files, their movies and e-books, ignoring royal privilege and decree, inexorably eroding copyright’s sandy ramparts.

What has stood for three centuries is soon to be a barely perceptible bump in the flat sands.

When it comes to a battle between crown and people, don’t bet on the king. Out of the two, the people are the only real thing on this planet. Privilege and royal prerogative are as ephemeral as paper tigers in the grand scheme of things. The King and his law, state and legislature, exists at the pleasure of the people, not vice versa. Law is to protect the rights of the people, not the comforts of crown and courtiers. Inveigling a privilege as a right is a folly doomed to failure. Madison’s legislative misanthropy is undone and must be made good. The Constitution can stand, but copyright must fall.

Until then, the cacophony of the conflict between copyright holding corporations and liberty imbued inhabitants is rising to a crescendo.

A Natural Finale and Reprise

The gift of a monopoly granted by copyright has effectively dissolved – copyright can no longer prevent or deter copying by a populace imbued by nature with the right to copy, and enabled by modern technology with the facility to copy.

However, the privilege of copyright as a weapon remains nevertheless, its potency increased, though its thirst for million dollar fines cannot be sated against any except the most wealthy (and most unlikely) of victims.

In the face of ever advancing information and communications technology, and the instantaneous diffusion of the Internet, the legislation of copyright is an anachronism and must be repealed. An immediate repeal would be best, but a staged dissolution is likely to involve less upheaval.

It is nature that has brought an end to copyright, and this is because copyright is unnatural, at odds with people’s primordial need and ability to build, to make tools, to communicate, to progress their own culture and technology.

We must restore proper recognition of people’s natural cultural and technological liberty, but by all means secure the individual’s natural exclusive right to their writings and designs, as all natural rights pertaining to their intellectual works (also known as moral rights).

Prospectus

There are many departures in UK and US legislatures from protecting all individuals’ natural rights equally, toward protecting the interests of those favoured by the state, the powerful, wealthy, and famous, and not least, the methuselaic corporations.

One should consider repealing and replacing trademark with law against passing off (fraud, malicious deception). Concerned industries can create their own registries of branding, trade dress, etc. for precautionary or disambiguation purposes. An identity is a natural monopoly only as far as identity is concerned, and does not entitle any monopolisation of symbols, names, words, colours, smells, etc.

One should also consider repealing laws against defamation and libel. A reputation is an epiphenomenal attribute, not property. Persistent or malicious falsehood, deceit, and fraud are the misdemeanours to be prohibited and remedied.

However, aside from those areas in which monopolies have been explicitly granted (copyright, patent), or are forming (trademark), or in which speech is unethically constrained (non-disclosure agreement), the most pressing need is to repeal the privilege of copyright.

Once privileges are repealed, and individual liberty is restored, we can return to properly recognising and protecting the individual’s natural rights concerning their material and intellectual works.

We have to develop legislation that properly secures the individual’s exclusive right to intellectual works in their private possession, including those they’ve authored, discovered, or invented. NB This does not constitute ownership of ideas, but the individual’s right to control the transport and communication of matter, information, material and intellectual works across the physical boundary of their private domain (without impinging upon the liberty of privy individuals). Thus coincidentally similar authorship, discovery, or invention is not a violation of the exclusive right.

This legislative reform then reprises the Constitution’s representation of the people’s mandate to recognise, and create a government to protect, their natural rights, to life, privacy, truth, and liberty.

At the earliest opportunity:

Exempt individuals for copyright infringement in the public digital domain, i.e. only manufacture and distribution of material copies can constitute an infringement, e.g. printing and distribution of paper books or CDs is not exempt, but file sharing via a network or radio broadcast is exempt (unless of works obtained via burglary – violation of exclusive right).

Legislate the protection of natural rights concerning intellectual works – also known as ‘moral rights’, e.g. that attribution is accurate, that the integrity of any work attributed to an author is preserved, etc.

Corporations remain liable for copyright infringement – including authorising/inducing individuals to do so.

And within 5 years:

Exempt individuals for all copyright infringement in the public domain, e.g. book printing, file-sharing and burning of CDs are exempt, unless of works obtained via burglary.

Corporations remain liable for copyright infringement – including authorising/inducing individuals to do so.

And within 10 years:

Exempt corporations for infringement in the public digital domain, unless of works obtained via burglary.

And within 15 years:

Repeal copyright.

The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

To recognise and ensure that individuals can freely share, build upon, and exchange the intellectual works in their private possession, to engage in commerce thereof, and thus promote the progress of science and useful arts, Congress should abolish any law that unjustly impedes this free exchange, such as a grant of monopoly, and make law to secure the individual’s natural exclusive right to the intellectual works in their private possession, including those they’ve authored, discovered, or invented, for a time no longer than their natural lifespan.

Jon Newton of P2PNet brings my attention to a paper by Jessica A. Wood, The Darknet: A Digital Copyright Revolution, in which she notes that we are in the midst of a digital revolution – or as I’d put it, a veritable civil cyberwar between the aristocratically privileged corporations and the digital natives who would escape their iniquitous yokes of copyright and patent, to assert the restoration of their cultural liberty.

Thus the Darknet is not a den of delinquent thieves, but a community of the culturally liberated. While such liberty is outlawed they will remain outside the law, freely copying, freely creating unauthorised derivatives. The belief that such outlaws should suffer million dollar fines for sharing or remixing music is astonishing not so much in terms of monetary magnitude, but in that so many supposedly good lawyers indignantly affirm the righteousness of their persecution of the culturally self-emancipated – as if the bigger the fine the more right it must be. We are thus not quibbling over the amount, but whether it is right to fine someone even a penny for acts that prior to the 18th century enactment of copyright would have been embraced and cherished as part and parcel of folksong, folk music and mankind’s primordial liberty and necessity to engage in cultural exchange.

The Darknet is a cultural refuge from the instrument of injustice that is the privilege of copyright.

Understanding that the technological refuge of a ‘Darknet’ is as amenable to suppression as rumour or gossip among an insurgent populace is to recognise nature and the individual’s natural right to free speech and cultural liberty. It should not be mistaken as thieves being briefly in possession of superior technology to the state.

The Darknet does not signify defeat for a good law. It reveals that the privilege of copyright was bad law the moment lobbyists for the press convinced legislators to enact a statutory monopoly for their commercial enrichment (not insignificantly beholding them to the magnanimous state) – and on whatever pretext the people would find plausible.

No matter. The tide of nature returns and King Canute can no longer pretend dominion.

However, we have three centuries of copyright indoctrination to deprogram ourselves of, and unlike today’s young file-sharing delinquents, lawyers are up to their necks in it. So, it’s a great achievement for someone such as Jessica Wood to allow the logic of the natural world in front of her to overcome the dogma of the industry and its devout faith that music must forever remain non-copyable, unshareable, culturally untouchable, sterile and perpetually protected property of the privileged.

Even so, in her article I linked to above she is still using much of the publishing industry terminology such as ‘content’ which makes her ability to escape its clutches an even more surprising achievement.

She also falls for one of the more platitudinous pretexts for copyright. It only protects democracy in the sense that it provides the state with a self-regulating press and one beholden to quell sedition. The press became powerful as an effective oligopoly (and threat to the state) and that enabled it to lobby for the monopolies that made its commerce so much simpler and more lucrative (at the expense of liberty).

As to the technology underlying the ‘Darknet’, she appears to waver as to whether distributed systems are more efficient/economic mechanisms for diffusing information than centralised systems (see [24]), but that’s a forgivable wavering. They are fundamentally more efficient in all respects. Their only shortcoming is in being so much more difficult to understand and develop than centralised or part-centralised systems. Their designs and implementations thus end up being influenced and compromised by antagonistic legislation and a lack of resources.

The best thing of all is that even without her recognition of the difference between intellectual work (expensive) and copies (inexpensive) (caused in large part by her conflation of the two – as evinced by the nefarious concept of ‘content’), she still ends up correctly concluding that neither monopoly nor tax represent ‘solutions’. Indeed she concludes that copyright should be abolished as causing more harm than good (at least in the digital domain). I suggest she might also reconsider whether copyright was ever a ‘solution’, except to 18th century printers’ commercial interest. The pretext of it being in the public benefit is a sop to the public, for the public certainly weren’t crying out to donate their cultural liberty to the press.

So, Jessica recognises that far from promoting creativity and cultural exchange, copyright actually attempts the opposite, that it is man’s instinctive need to share and build upon his culture that incentivises extreme technological measures to achieve it, overcoming ever more draconian legislation and futile obfuscations such as DRM (also legislatively protected). How much better then to abolish copyright (saying goodbye to fat and wealthy publishing cartels) and allow the people to take over the task of free cultural exchange, dissemination and promotion…

And this is where Jessica appeared to peter out.

She reaches the unsatisfying conclusion that despite evident demand we are looking at a future where people will no longer pay for content. Content producers will have to sell something else, she suggests.

And that’s because she still has some residual brain damage.

The brain damage is (as I pointed out earlier) caused by her adoption and use of ‘content’ in her thinking – the conflation of intellectual work and copies.

She should take a look at the free software industry to help understand that when you neutralise copyright, ‘content’ decomposes back into intellectual work and copies. Once unbound, the copies are sold independently of the intellectual work, and with a free market in both, the copies are so cheap they’re given away for nothing whereas the intellectual work of the software is so expensive that coders are still paid to produce it. Though it must be said, many coders contribute their labour altruistically, especially to works with primarily community/public benefit. That doesn’t devalue their labour though, and so it doesn’t bring down the market price for software development services. The copies might cost nothing to make, but that doesn’t mean you can pay coders peanuts to develop the software you want developed. Intellectual work remains expensive.

Jessica should thus realise that the future without copyright is a future without the concept of content, but not without culture. Given there are no producers and vendors of containers at monopoly protected prices, there is no market for content nor containers/copies. Without copyright people will not pay for copies (well, not digital ones anyway).

The market for copies has ended – along with the market for content with which to fill them.

However, the market for intellectual work continues unabated.

And this is precisely where Jessica should focus next – the exchange of intellectual work for the money of those who want it produced. Copies are free. Let’s get over that. The only ones interested in selling the manufacture and distribution of copies are going the way of the dinosaur (made redundant by distributed systems and the instantaneous diffusion mechanism it is The Internet’s destiny to become). But the work that people want done, now that always has exchangeable value. Whether it’s a paragraph to put on a shampoo bottle or a three hour long movie, where there’s demand and supply there’s money and production. To say that without a monopoly for publishers no movies will be produced is a failure of imagination. If millions of people want a movie produced they will stump up millions of dollars.

And today the refrain is always “But if people can get it for nothing they won’t even pay a dollar”. And then I say “But we’ve already agreed that they can’t get it for nothing because if the producers don’t get paid they won’t produce it”.

Copyright causes this brain damage.

I daresay a similar conceptual stumbling block faced the inventor of the jukebox when he tried to convince people it would make money. “But, why will anyone put any money in it when everyone can hear it play for nothing?”

The people interested in the production of intellectual work pay for it to be produced. That the public are consequently at liberty to share and enjoy the product does not prevent this exchange from happening. Only copyright conditions people to believe that if anyone receives value from an intellectual work without paying for it that they are a thief. The fundamental economic principle is that you pay for labour. You do not charge for value extracted; you do not suspend liberty (copyright) and charge for its restoration (license).

Anyway, that’s the area I hope Jessica will explore next.

For what she has achieved so far, I can at least say “Well done Jessica! Great paper. May you and your words be found credible by those who need their eyes opened to the nakedness of the Emperor’s corruption.”

Paul Sanders brings my attention to a PlayLouder blog item concerning a speech by Viviane Reding, where she says:

If we do not, very quickly, make it easier and more consumer-friendly to access digital content, we could lose a whole generation as supporters of artistic creation and legal use of digital services.

If we do not stop flogging the dead horse of forcing people to pay for copies they can make themselves for nothing, and start helping people pay artists for the art they want from them, then we’re not doing much to help either artists or their audiences.

Unfortunately, the interests of the artists and their audiences aren’t on the radar of the EU Commissioner for Telecoms and Media.

All lobbying is driven overwhelmingly by manufacturers of copies and others privileged with monopolies over the use of published works (copyright holders).

And the one thing the lobbyists and lobbied cannot even conceive of let alone confront is that the market for copies has ended. Their monopolies, their centralised control over the people and the people’s culture, have become impotent. Fortunately, there’s at least one European I know who Viviane could consult regarding the end of that control.

Viviane does at least reveal some glimmer of recognition of this predicament:

Digital Europe can only be built with content creators on board; and with the generation of digital natives as interested users and innovative consumers.

I suggest that a necessary precursor to this is to first get the publishers and collection societies currently on board to walk the plank. Whilst they still have the ear of the captain the ship will stay lost in the doldrums and eventually sink.

It would also give her lip-service a little more credibility if she stopped using terms such as ‘content creators’, ‘natives’, ‘users’, and ‘consumers’. These are the derogatory terms of publishing corporations and their enforcers (aka policy makers). I recommend less distant and more human terms such as ‘people’, ‘artists’, ‘art’, etc. After all, it is people we’re talking about, innocent families faced with million dollar fines, not producers and consumers of content (whether she means soma or filler is not clear).

It is necessary to penalise those who are breaking the law.

Is it? And what if the law the people are breaking is an unethical 18th century privilege that tramples over the ancient and natural law that predates it by a few ice ages?

People have been copying stone tools, baskets and cave paintings from each other since the year dot. People have been sharing their art and knowledge among each other and building upon it since we had two brain cells to rub together. The policy makers who believe that mankind progresses by enacting laws to prevent this from happening are either brain dead or in the pay of corporations.

Restore to the people their cultural liberty.

Abolish the privileges of copyright and patent.

That will stop people breaking the law.

I am reminded by Improbulus (via ORG) that David Lammy, Minister for Higher Education and Intellectual Property (UK), has launched an Intellectual Property Office initiative on the future direction of copyright:
© the future – Developing a copyright agenda for the 21^st century

It begins “The copyright system is of fundamental importance to the future health and prosperity of our creative industries and our economy”, but a century or two ago a similar initiative might just as well have begun “The trade in slaves and their exploitation is of fundamental importance to the future health and prosperity of our manufacturing industries and our economy”.

Both of these statements demonstrate a lack of imagination, bordering upon a self-interested refusal, to envision a future in which a healthy and prosperous industry can be achieved without suspending individual liberty.

Of course, it is not in dispute that the suspension of individual liberty can be lucrative to those privileged with its suspension, nor that such beneficiaries will be keen to retain it. However, this unethical exploitation is not something to look forward to in the future, but an embarrassment to consign to the history books.

As for the IPO’s request for comments on the future direction of copyright I’d suggest that it can be compared to that of Robert Mugabe’s direction of Zimbabwe. Presumably well intentioned, but all his directions lead Zimbabwe to its doom. Despite everyone else’s attempts to stop the runaway train of his ‘government’, it continues on, inexorably as if in a slow motion crash.

Until people start recognising that copyright is an unethical anachronism, a vestige of a bygone era in which individual liberty was considered secondary to industrial prosperity, then any direction will be the wrong direction.

Copyright has to be abolished. Asking for comments on the future direction of copyright is like asking the same for slavery (with any unenthusiastic comments to be ignored).

Just as with Zimbabwe, the sooner copyright runs out of steam and its crash is complete the better for everyone, when people can rediscover their culture free of its totalitarian yoke and resume the enjoyment of their freedom to share and build upon it.

Attempting to adjust the direction of copyright onto an apparently less damaging course, at best simply postpones its inevitable crash (abolition) and thus extends the duration of its current damage.

The plutocratic publishers (à la Mugabe) do not need my assistance in their lobbied direction of copyright toward abolition – and they are doing an excellent job of making it sooner rather than later.

Unfortunately, until people see the damage that copyright does they will be unable to recognise that it should be abolished. Therefore, Cassandras such as I eventually realise, despite trying, that there’s nothing we can do or say to avert the disaster.

The train wreck that is copyright’s future has to happen.

On the Recording Industry vs The People blog Ray Beckerman asks Have copyright owners gone mad?. He further inquires “Have the content owners gone completely mad? Are they actually trying to destroy our love of music?”.

I respond:

You should seriously start wondering if copyright itself isn’t mad.

It should clearly be insane to grant distribution, performance and reproduction privileges in the same world in which there exists an instantaneous diffusion device (aka The Internet).

Grants of monopoly have long been recognised as unnatural and hence unethical privileges, but that hasn’t stopped those who would benefit from them from enacting them (a mere three years after the ink had dried on the US constitution that gave no sanction beyond the securing of an author’s natural, exclusive right).

When the nature of information and our digital facility with it renders reproduction monopolies unviable, reveals them for the ineffective anachronisms they truly are, then sanity should be credited to those who have divested themselves of copyright.

The future for copyright is abolition, final emancipation for all people from the last vestiges of inegalitarianism.

Ray then replies:

Dear crosbie,

As someone who has been working in copyright law for 34 years, in my opinion, real copyright law isn’t nearly as bad as you think it is.

Always bear in mind that the RIAA’s manufactured version isn’t really the law.

The real radicals here are the RIAA lawyers, who will say anything if you pay them enough, and who lie every day in court.

I don’t know why you want to try to out-radical the radicals.

I then answer the aspersion of radicalism:

Ray,

You are effectively committing the logical fallacy of an ‘appeal to moderation’, i.e. that proponents of anything but compromise are invalidated by their extremism.

It remains plausible, and becomes ever more demonstrable, that a monopoly over the reproduction of published intellectual works is socially detrimental, no matter the length of its term.

You may choose to portray me, or this position as radical or extreme, but that portrayal does not actually add any weight to a counter argument.

Unfortunately, Ray rejected this comment, finding it a tad off topic.

Dear crosbie, I have rejected your last comment — and could have rejected your first comment — on the ground that it is off topic. The subject of the post is abuse of existing copyright law.

If I were one of the PR trolls at the RIAA I would love to have someone like yourself posting comments like that, which deflect attention from the subject at hand, and play the reductio ad absurdum game.

If you’re not actually working for the RIAA, and really do believe that all copyright law is bad, then you’re in the wrong forum; this blog is about real problems going on in the real world.

This blog, on the other hand, is about real solutions to real problems going on in the real world, namely the real problem that is copyright, the interim solution of its licensed neutralisation (aka copyleft), and the real solution of its abolition – not least, the research and development of revenue mechanisms that operate without copyright’s suspension of the public’s cultural liberty.