In Moral Rights, Endowment Effects, and Things in Copyright Mike Madison exhibits a fair amount of confusion concerning the difference between a privilege such as copyright and moral rights. So, I’ll explain…

It is pretty straightforward.

There are privileges concerning intellectual works, and there are (natural) rights concerning intellectual works.

Copyright is a privilege granted for the benefit of the press (necessarily arising in each original work – a work that involves no copy).

Moral rights refer to the (natural) rights pertaining to an intellectual work and its use.

Unfortunately, in many jurisdictions the understanding of moral rights has been infected by the unnatural aspects of copyright and thus takes up a more proprietary aspect.

For example, instead of a moral right to integrity being a correctly understood as a matter of truth (that a work presented as the author’s is indeed the unadulterated work of the author), it is improperly taken to mean that an author has the power to veto any modifications or derivatives they feel to be insulting to their work or reputation.

In being indoctrinated to believe copyright is a right, people are then confused when confronted with a natural right. For example, people wonder how an author can have a perpetual right to identify themselves as the author of their work when they can only prevent copies of their work for a century or so. This is because the natural right to truth is inviolable and belongs to all, not just the author. Whereas, the privilege of suspending everyone’s right to copy is granted at law and thus arbitrarily limited. Authorship of a work is a fact and is eternal.

As for the ‘doctrine’ of first sale, it’s only called a ‘doctrine’ because some would like to undermine consideration of copies as the property of their purchasers. Copyright only suspends the right to make copies. It does not impinge upon the recognition of an authorised copy as the material and intellectual property of its purchaser. When you buy a book, you retain the natural right to exclude others from it. Only your natural right to make copies or otherwise communicate its expression has been abrogated by copyright. You at least retain the right to exploit and communicate the knowledge therein. So, selling what is your property (since no copying or communication is involved) cannot infringe copyright. What some claim undermines this is if a purchaser performs an act only permitted by a license attached to the work where that license is conditioned upon the purchaser consequently forfeiting ownership of the work. However, since no agreement or exchange actually occurs this is not a valid transfer of property. In any case, sale of the work simply means that the purchaser could not complete the conditions of the license and so has infringed copyright – not ‘disposed of stolen property’ (per inferred agreement to transfer its ownership).

John Bennett in First (free speech) amendment trumps copyright reflects on Mike Masnick’s observation that certain parts of the Emperor’s modesty may be visible from certain angles:

Mike Masnick takes up the question of the conflict between copyright and freedom of expression link here. I have to admit it came as a revelation to me. Is there any way to argue that copyright doesn’t limit one’s freedom of expression? If you think it does as I now do, then your argument conflicts with the First Amendment of the Constitution which says “Congress shall make no law… abridging the freedom of speech….”

This provision clearly conflicts with Article 1 Section 8 which gives Congress the 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;….”

I am no lawyer, but since the first amendment was passed on March 4, 1789 after the Constitution was ratified on September 25, 1789, it would logically override that part giving Congress such power (for dates link here). Of course, there is never any certainty about how the Supreme Court may decide an issue.

Mike recommends a book which I haven’t read yet, but his statement is pretty strong. He says David Lange and Jefferson Powell, the authors of No Law, “spend the first half making the compelling and detailed (if densely written) case that copyright law absolutely violates the First Amendment.” They apparently backslide in the second half.

I do take personal exception to Mike’s comments on the State Department officials toadying to the IP interests. As a middle aged and fairly senior diplomat, I had to try to enforce our IP agreements with the Korean government. I had no option to express an opinion, but instead was told to enforce what I was told was the law.

I reply:

John, as you’ll see in the comments to that article, I argue that there is no conflict whatsoever between the 1st amendment and the clause empowering the securing of an author’s exclusive right to their writings.

The problem is between the unconstitutional legislation of copyright (re-enacting the Statute of Anne in 1790) and the individual’s natural freedom of speech and cultural liberty – from which the natural right to copy was derogated (to grant the privilege of copyright).

Natural rights do not conflict with natural rights. You can have no freedom to speak that which you do not know, nor liberty to make copies of that which you do not have. If an author can naturally exclude you from their writings then they can naturally exclude you from copying them. Such are the natural rights that a government is empowered to secure.

Copyright is nothing to do with such a natural right, it is not even the securing of such. Copyright is the holder’s privilege to prohibit people who have been GIVEN writings, from making copies of what is in their own, legitimate possession – a diminution of their private property comparable to a burglar’s vandalism and so a form of theft.

• Copyright is theft.

• Cultural liberty is copyright infringement.

The doublethink to the contrary (copyright encourages speech, infringement is theft) is so Orwellian purchasers didn’t even blink when copies of his books in ‘electronic’ form were ‘unpublished’ from their private possession due to a copyright licensing issue.

Copyright indoctrination is now so ingrained it constitutes hypnotism or brain damage. And as with subjects of hypnosis, inherent conflicts in what one ‘knows’ to be incontrovertible are impossible to resolve – until the hypnosis is undone, until the indoctrination is deprogrammed.

But for people to confront the possibility that copyright is as much an ethical offence against human rights as slavery¹ is so terrifying, that “No! Copyright must be good. Copyright is good!” snaps people back to the comfort of their programming.

________________________________

¹ Whereas slavery suspends all liberties from a few, copyright suspends a few liberties from all.

I post this here, because ORG’s Jim Killock finds my comment below too offensive to permit to appear beneath his recent blog item entitled When Copyright Goes Bad

Copyright isn’t going bad – it’s always been bad, ever since the privilege was granted to the Stationers’ Guild by Queen Anne in 1710.

What’s going on is that more and more people are discovering that their natural liberty to share and build upon their own culture has been suspended by an iniquitous 18th century anachronism.

It seems ORG doesn’t mind comment as long as it’s ‘on message’, i.e. remains in accord with ORG’s support for copyright. A rather peculiar policy…

Update _{22 Apr 2010 · 1:53pm}

As Ibutton77 kindly brings to my attention, ORG has now relented and permitted my comment to appear. Whether their embargo of my comment would ever have been lifted had I not blogged my comment here is open to conjecture, but a discriminatory embargo isn’t much better than discriminatory ‘moderation’.

Free software engineers have been one of the largest sectors (in the industry of intellectual work) to grok the iniquity of the 18th century privileges of copyright and patent a few decades ago (and contrive a partial remedy), but every day more and more geeks are ‘getting it’. More and more people are realising that something is rotten in the state of Denmark, realising that an unnatural monopoly that criminalises the cultural and technological exchange that has come naturally to people for aeons, indeed has been critical for mankind’s cultural and technological development, cannot be as good as people have been brought up to believe.

Here’s a recent “Copyright is our liberty!” qua ‘Soylent Green is People!’ revelation from a commenter on Slashdot (Hat tip p2pnet):

The Copyright Bubble

by girlintraining on 17:29 09 January 2010 (#30708172)

I’ve posted most of this before on slashdot; This is just a cleanup of previous posts — it has details of why the ACTA is secret.

A Private War

I used to read stuff like this and get upset. But then I realized that my entire generation knows it’s baloney. They can’t explain it intellectually. They have no real understanding of the subtleties of the law, or arguments about artists’ rights or any of that. All they really understand is there is are large corporations charging private citizens tens, if not hundreds of thousands of dollars, for downloading a few songs here and there. And it’s intuitively obvious that it can’t possibly be worth that.

An entire generation has disregarded copyright law. It doesn’t matter whether copyright is useful or not anymore. They could release attack dogs and black helicopters and it wouldn’t really change people’s attitudes. It won’t matter how many websites they shut down or how many lives they ruin, they’ve already lost the culture war because they pushed too hard and alienated people wholesale. The only thing these corporations can do now is shift the costs to the government and other corporations under color of law in a desperate bid for relevance. And that’s exactly what they’re doing.

What does this mean for the average person? It means that we google and float around to an ever-changing landscape of sites. We communicate by word of mouth via e-mail, instant messaging, and social networking sites where the latest fix of free movies, music, and games are. If you don’t make enough money to participate in the artificial marketplace of entertainment goods — you don’t exclude yourself from it, you go to the grey market instead. All the technological, legal, and philosophical barriers in the world amount to nothing. There is a small core of people that understand the implications of what these interests are doing and continually search for ways to liberate their goods and services for “sale” on the grey market. It is (economically and politically) identical to the Prohibition except that instead of smuggling liquor we are smuggling digital files.

Billions have been spent combating a singularily simple idea that was spawned thirty years ago by a bunch of socially-inept disaffected teenagers working out of their garages: Information wants to be free. Except information has no wants — it’s the people who want to be free. And while we can change attitudes about smoking with aggressive media campaigns, or convince them to cast their votes for a certain candidate, selling people on goods and services they don’t really need, what we cannot change is the foundations upon which a generation has built a new society out of.

Culture Connection

Just as we have physical connections to each other, we now have digital connections to one another. These connections actively resist attempts at control because it impedes the development and nature of the relationships we have with one another. People naturally seek the methods which give them the greatest freedom to express themselves to each other. That is a force of nature (ours, specifically) that has evolved out of our interconnectedness. Copyright law has been twisted to serve as a bulwark against the logical result of increasing social interconnectedness between people and computers: Access an ever-increasing amount of humanity’s history, knowledge, and culture. Ultimately, this is a battle they cannot win — they can only delay, building dams and locks to stem the tide, but they will fail. It’s how, when, and where it fails that will decide the fate of economies worldwide.

Every law advantages one group while disadvantaging another. And every engine, be it physical or social, functions because an energy imbalance exists and by moving energy from one potential to another, we can skim some off to do useful work. Laws work the same way — by creating artificial differences between groups of people, society produces goods and services. This is why we will always have new Prohibitions. It’s not a comfortable or politically correct thing to admit, that for societies to function there must necessarily be inequality between people. It is nonetheless true.

This is not a reason to give up hope or be cynical! We are in the middle of a social revolution that has few outward signs. Unlike generations past, the revolution that is happening now exists in fragmentary communications by a collectivistic movement that lacks any real core. It has been created by an unspoken understanding between its participants. That is to say, the participants of the digital community to varying degrees develop the same coping mechanisms to frame their understanding of this environment. These coping mechanisms develop into ideas and beliefs that we then form the basis of our interactions with other members. Put another way, these coping strategies that we interpose between ourselves and our environment form the basis of culture. The interesting part is, this change occurred without any indoctrination or central leadership to accomplish. Mere exposure to the environment alone seems to predispose people to a certain kind of thinking that cuts across barriers of country, culture, sex, and race.

There are no real leaders for the digital culture, yet the culture is there. This is unprecidented. There are very, very few social movements that organize around principals instead of individuals who exemplify those ideals. Whether you live in Iran or America, Africa or Europe, the same values systems are spontaniously developing in reaction to exposure to the digital environment. And while the state of the art has advanced at an incredible rate, our methods of understanding and interacting within the new social spaces created by that aren’t changing that much. It’s a stable environment evolving at rate sufficiently slow to allow culture to form.

That, in and of itself, is amazing. Forget copyright for a moment and consider all the other social advances that are taking place because of our digital interconnectedness — and then realize that there are only a very few friction points in this revolution! That is also unprecidented in modern history.

The Bubble

Copyright won’t end anytime soon, but I’m suggesting we look at the fundamentals here: it is an artificial construct within the digital environment. It’s something we built extraneous to it, and in fact is antagonistic to it. The exchange of information is fundamental to the existance of the internet. Copyright is not. Copyright is an institution, like marriage, the church, the government, etc. Like those things, it has a maintenance cost. It is a coping mechanism. That’s not a judgement on its sustainability nor its justification for existance (or lack thereof).

Copyright is an institution and like all social institutions remain in existance only for as long as its members continue to support it. There is a substantial and growing number of digital identities (people, organizations, projects, etc.) that exist outside of that institution. Why? Because information is very, very cheap to replicate. Production of that information however can vary in cost. Everybody agrees that there must be some compensatory mechanism, however artificial, to reimburse people for the effort invested in the production of the goods and services that copyright protects. If there is no protection at all, many staples of modern life cease to exist. This is the loci of why copyright exists.

The cost to society now outweighs the benefits and we exist within a market bubble right now: A copyright bubble. Large corporations and governments alike have bought into it and driven up its cost. Like any market-driven force however, it will eventually return to equilibrium. We had the dot com bubble, and the housing bubble, but that’s nothing compared to what’s going on right now — we lost billions when that one burst. We stand to lose trillions when this one does. And, ironically, it will be burst by the very forces that businesses are embracing right now — labor capital in the third world.

Which is exactly why, right now, governments around the world are drafting a copyright treaty between themselves in secret. They know that as soon as the lesser-developed countries have come forward a bit more infrastructurally, they’ll be at a point where they can leverage a free flow of history, ideas, and information to dramatically improve their economies. Just as plans for the machinery that powered the industrial revolution was witheld from countries that didn’t have it, so too have the tools to begin the information revolution been witheld.

Let’s face it — less developed countries are not going to pay licensing costs and fork over the money circulating in their economy back to us: They’re going to pour it back into modernization of their own economies. The only way they can do that is by asserting sovereignty and independence from the global copyright framework being developed. That’s why there’s such a push right now to lock them out if they don’t join in the global copyright racket. If this effort fails, the bubble will burst and trillions of dollars will drain out of the economies of the western world like someone pulled the plug out of the bathtub, because the marketplace will be much, much bigger. That’s why if you ask for copies of the Anti-Counterfeiting Trade Agreement, the government will tell you it’s unavailable for reasons of national security. But you don’t need to have the text to know what it intends to do.

The chinese are already producing very cheap material goods. What do you think’s going to happen when they start producing very cheap services as well? Nobody’s going to pay $400 for an operating system; Not when the Chinese have their own that sells for $5 each on a DVD. They have more honor students than we have students — and each will work for dollars a day.

There are always those in pursuit of power who will corrupt the meaning of freedom toward that end.

I am dismayed to read an example of this corruption in a comment by Thomas Lord as blogged by Michel Bauwens in Why We Need Free Network Services, and not just Copyleft.

Freedom is not about having power over someone else (or what someone else has), it’s about oneself (and one’s possessions) being free of someone else’s power.

Copyright and patent are privileges that give holders power over others (and what they may or may not do with their possessions). Copyleft is about restoring the individual’s freedoms suspended by these privileges. Copyleft is not about giving the author, recipient or user of software, power over others or others’ computers.

There is admittedly a misguided movement in pursuit of that end (qv Affero), but instead of corrupting the meaning of the term ‘freedom’ they’d be more honest to label the power they covet as a privilege: to control others’ computers upon which certain software runs and to place constraints and obligations upon the owners of those computers. The means of simulating such a privilege may well be found within the privilege of copyright, but simply because a license that obtains a specific power operates in a similar way to copyleft doesn’t make such a license wholly ethical or solely a pursuit of freedom rather than freedom+power. And the argument that the power sought is ethical because it is socially beneficial is the same as the one used about the power to prevent copying.

In general, simply prefixing a power with ‘freedom to’ doesn’t mean the would be recipient of that power has a natural right to it. This is one of the problems with the term ‘freedom’, it can be abused as a carte blanche entitlement to power, e.g. “I should have the freedom to control the software I run even if it runs on your computer” should actually be read as “I should have the power to control the software I run even if it runs on your computer”. Sadly, ‘freedom’ can be used as a weasel word.

If the term ‘freedom’ is going to be used ethically it should be used to indicate the seeking of escape from someone else’s unnatural power, not to indicate the pursuit of unnatural power over someone else. We often see this when people suggest the BSD is freer than the GPL, e.g. “Unlike the GPL, the BSD license permits me the freedom to re-apply copyright to my derivatives, which is the power to prevent you making copies.”

So, if we don’t start looking a little more deeply into what is meant by ‘freedom’ (escape from another’s privilege) we might as well redescribe copyright in the same corrupt language, e.g. “I should have the freedom to prevent the reproduction and public performance of my original work by those to whom I distribute it”. And, unfortunately, there are many people who would see nothing wrong with granting such privilege, nor anything jarring in the use of the term ‘freedom to’ in place of ‘power to’.

You should be free to do what you are naturally free to do, which is that which you would be free to do but for unnatural privileges granted to others that suspend that freedom. In other words, you should be free from another’s unnatural power over you. For example, you may be prevented from operating someone else’s computer not by any unnatural power they have in the form of a state granted monopoly, but by their natural right to privacy. To seek freedom from someone else’s privilege is the ethical pursuit of liberty, to seek freedom to do something that is prevented by another’s natural right is to seek privilege, and is the unethical pursuit of unnatural power.

But, back to the title of the article. I agree that copyleft is not enough, but what is deficient about it is not its inability to give the individual more power to control the software they use and the computers it’s run on, but its inability to restore the public’s freedom from copyright and patent completely. To completely restore the public’s liberty requires more than a copyleft license, it requires abolition. It requires that those privileges of copyright and patent are abolished.

• If you don’t want someone else to be able to make copies of your work then don’t give it to them.

• If you want to control the software that you use or the computer upon which it is run then run it on your own computer.

You don’t need, and shouldn’t have, any unnatural power to control someone else or stipulate what they can or cannot do with their own property.

Let us say that 35,000 CDs have been released every year since 1980, and will continue to be released.

Let us also say that a CD can generally be represented as a 100MiB MP3 file at an acceptable bit rate.

From the ‘back of envelope’ table below we can estimate that the cost of storing all the CDs ever released on a hard disk drive will fall to about $100 in 2015.

I suggest that the next file sharing application won’t be one that lets people pick and choose which CDs to share or audition. It will simply replicate and distribute EVERYTHING. There won’t even be any point in deleting all the CDs one doesn’t like. The problem will be entirely one of deciding what the heck to listen to.

Even so, once we have discovered the musicians we like there will still be the problem of how to persuade them to make more great music. Even all the music ever released can pale next to one more album from a favourite artist.

Don’t worry. That’s the problem I’m working on – enabling a musician’s fans to exchange their money for the musician’s production of music. It’s not rocket science. You just have to bear in mind that it’s not about enabling CD manufacturers to sell copies, but about enabling musicians to sell their music to their audience – directly instead of via record labels and CD manufacturers.

When you’re selling music instead of digital copies you don’t benefit from a monopoly; on the contrary, you want your music to spread far and wide.

So, if you’re hoping to fill that hard disk you’d probably better get started today.

Assuming a conservative 20Mbps share rate (given an efficient file-sharing system and no network contention) that works out at around 75TiB per year. In other words, all music ever released could be shared via the successor to BitTorrent within two years at such time as it became economic for everyone to store a duplicate set.

Within a decade, those who don’t share published music will be seen as a burden upon everyone else, akin to the way leechers are already perceived today.