The film industry’s latest advertisement in their campaign to prolong their anachronistic privilege of copyright (at the expense of suspending the public’s natural right to cultural liberty) is a bit of an own goal.

The amusing and yet depressing irony about the video clip is that its producer’s cultural liberty to incorporate the original soundtrack from Jaws has been suspended by copyright – and it comes across as if they didn’t fancy the prospect or expense of obtaining clearance – so they substituted something vaguely reminiscent.

This evasion does no credit to John Williams (the composer of the original music to Jaws), and implies that even the producers of the advert have no compunction in hypocritically avoiding paying the royalties they’d presumably otherwise argue he’s due. Isn’t that ‘copyright theft’?

They thus reveal the perverted, illiberal world they’d like us all to live in at the same time as ‘thanking’ people for similarly abstaining from taking natural liberties with the movies they buy. Those poor people the MPAA would thank for not yet having deprogrammed themselves from the brainwashing that it’s wrong to share copyrighted music and movies, and wrong to use copyrighted theme music in your own videos that you upload to YouTube.

On the other hand, when it comes to Knock-off-Nigels, most of us loathe them with good reason, those dishonest types who share inferior quality VHS transfers or videocam recordings and label them as full quality DVD rips when they should have truthfully described them. No-one will mourn Nigel’s passing (he was probably an MPAA employee).

So, come on everyone, let’s be honest. There is no shame in sharing and building upon published culture. Copyright is an unethical constraint on society’s cultural liberty and those societies who choose to remain bound by it choose cultural stagnation and obscurity.

Let’s see this video remixed with the appropriate musical segments from the original Jaws movie and uploaded to YouTube; let’s make John Williams proud that his music isn’t consigned to copyright oblivion to suffer the indignity of crude substitution. Let’s show the film industry what cultural freedom is all about, and how much more culturally vibrant and diverse the world is when artists are free to share and build upon each other’s work.

Don’t forget: that’s free as in free speech, not ‘free’ as in ‘free beer’.

Mike Masnick introduces us to a great new work, the like of which I have not seen since the Grey Album.

Let us wonder why this musician ‘Kutiman’ may not have either prepared his derivative art or even obtained our reward without seeking the permission of all those whose work he sampled.

Even if each of his sampled videos was CC-NC licensed, this mixing artist may not receive a single one of our pennies without theoretically becoming liable to copyright litigation – unless they painstakingly obtain permission from each and every copyright holder.

Why should such permission be required?

Why must this artist’s liberty be so suspended? Why may we not even reward them for their excellent intellectual work? Kultiman has provided attribution and links to each of the constituent works, so it is not as if we’re discouraged in also discovering and rewarding the underlying artists.

Elexis Trinity

Juice Lee

If such art can only be created and rewarded outside the law, then we must look to outlaws for such art, and reward them as outlaws.

Copyright is an unethical constraint on society’s cultural liberty and those societies who choose to remain bound by it choose cultural stagnation and obscurity.

I’m pleased to be introduced by Jon Newton of P2PNet to Jeff Tucker’s incisive article observing the prohibition era of the 21^st century – illicit distribution of pop the culture rather than of pop the beverage.

So let’s infringe LewRockwell.com’s copyright and thumb our noses at the prohibition of copying another’s published work without their permission:

The Mercantilism of Our Time

by Jeffrey A. Tucker

Someone handed me a book the other day – a cult classic among music geeks – and urged me to read it, and, when I had finished, sign my name in the front cover. That way I could be added to the already long list of readers in the front cover, each of whom add added his or her scrawl to the book after having read it.

How charming!

Except for one thing: this is complete violation of the spirit of intellectual property law. All these readers were sharing the same book instead of buying a new copy. Think of the revenue lost to the publisher and the royalties lost to the author! Why, if this gets out of hand, no one will ever write or publish again! These readers are all pirates and thieves, and they should probably be subject to prosecution.

So goes the rationale behind intellectual property law. It’s what economists call a “producers’ policy,” design to create maximum revenue for one side of the economic exchange, consumers be damned. In that sense, it is exactly like trade protection, a shortsighted policy that stymies growth, robs consumers, and subsidizes inefficiency. It’s Bastiat’s “petition of the candlemakers against the sun” all over again.

Apply the IP principle consistently and it’s a wonder we tolerate public libraries, where people are encouraged to share the same copy of a book rather than buy a new copy. Isn’t this also an institutionalized form of piracy?

The defenders of IP would have to admit that it is. They are often driven to crazy extremes in sticking the claim that copying is a form of theft.

I asked one emphatic correspondent about the ethics of the following case. I see a guy in a blue shirt and like it, so I respond by wearing one too. Is this immoral?

No, he said, because the color blue occurs in nature.

What if a person draws a yellow happy face on the blue shirt? Can I copy that? No, he said, this would be immoral. I must ask his permission and gain his consent. Actually, it’s even worse than this case suggests. If even one person had previously worn a blue shirt with a happy face, no one else on the planet would be able to do that without seeking consent.

It should be obvious that if everyone were required to seek the permission for the use of every infinitely reproducible thing that “belongs” to someone else – every word, phrase, look, vocal inflection, chord progression, arrangement of letters, hair style, technique, or whatever – or if we were really to suppose that only person may possess the unique instant of any of these things, civilization would come to a grinding halt.

Sadly, this is where our laws are tending. Right now, there are laws being considered that would step up IP enforcement to the point of clear absurdity. Just last week, YouTube removed the background music of countless videos for copyright reasons, even though such videos help popularize the music. Even home performances of songs written in the 1930s – young kids playing piano and singing – were taken down at the behest of producers.

People are talking about extending patents to sports moves, extending copyright to story lines, imposing a central plan on computer design to comply with patents, forcing everyone on the planet to obey U.S.-style IP laws by means of military force. Kids are going to jail, institutions are hiring internal police forces to watch for IP violations, and an entire generation is growing up with a deeply cynical attitude toward the entire business of law.

We are at a prohibition-style moment with regard to IP, just as with liquor in the 1920s. The war on the banned thing isn’t working. Those in power face the choice of stepping it up even further and thereby imposing a militarized state in place of anything resembling freedom, or they can admit that the current configuration of law has no future and bring some rationality to the question. Other societies have indeed crushed innovation with this very impulse.

Do you know why we celebrate Columbus Day instead of Cheng Ho Day? Cheng Ho was a great Chinese explorer who, in the early 15th century, took his fleets to Africa and the Middle East, but he was forced to stop when the elites in the home country began to feel threatened by his discoveries. The Chinese government won the war on exploration, and became static and inward. You can win a war on progress but the gains over the long term are few.

In addition to relaying the above story, the authors of Against Intellectual Monopoly, in the last chapter of their fantastic book, make a case for the complete dismantling of the law. “Intellectual property is a cancer,” they write. “The goal must be not merely to make the cancer more benign but ultimately to get rid of it entirely.”

The authors do not leave at that. They are intellectuals of the real world. They first make a case against any more expansions of bad laws, and lay out some reform proposals: shortening patent and copyright terms, changing burden of proof for originality, eliminate ridiculous redundancy trials for drugs, and the like. The authors even volunteer their time to help craft legislation. But the really hard work here is intellectual, since the pro-IP bias is so entrenched. The authors take the pure abolitionist position as a way of shocking us out of our stupor.

Is change possible? Of course. It was thought in the middle ages that most all products required monopoly production. The salt producer would enter into an agreement with the ruler. The ruler would promise a monopoly in exchange for a share of the revenue. It was thought that this would guarantee access to a valuable commodity. How can anyone make a buck without a guarantee that his hard work would be compensated?

Well, it took time but eventually people realized that competition and markets actually do provide, as implausible as it may seem. As the centuries moved on, markets became ever freer, and we no longer believe that the king must confer a special status on any producer. They still do it, of course, but mostly for open reasons of political patronage.

And yet in this one area of “intellectual property,” all the old mercantilist myths survive. People still believe that a state grant of monopoly privilege is necessary for the market to work. The myth has now been crushed with this book. So now the laws can be beaten back and they are being beaten back in the age of digital media.

Realize that for young people today, the initials RIAA and MPAA are the most hated on the planet – the equivalent of the IRS of a past generation. The heck of it is that these are private entities. Think what this means.

Capitalists of the world, please pay attention: you have a serious problem when an entire generation is being raised to HATE private, capitalistic institutions. Now, you and I know that these institutions are doing something illegitimate, namely enforcing “intellectual property,” which is really nothing but state coercion. Still, this besmirches the reputation of free markets. So too is a generation of socialists being raised to hate U.S. foreign policy on the belief that its export of IP is a form of capitalist imperialism.

For these reasons, no one has a stronger interest in abolishing intellectual property than supporters of capitalism.

I said at the beginning of this series that it has taken me fully six years to think through these issues. The book by Boldrine and Levine broke through the reservations I had that remained. In the meantime, I’ve received hundreds of messages to the effect that other readers have made the jump too. Whatever is holding you back, I beg to you read this account. I personally consider it to be one of the most mind-blowing books I’ve ever encountered, and so now I join the armies of people who are demanding an end to a system that threatens our way of life in the most fundamental way.

For this reason, this book is seminal, not only for our times, but for the entire history of liberty. It has clarified a point that has been a source of confusion for many years, and put it front and center in the current debate.

It might need correcting in places and I have my own knits to pick over their neoclassical framework and talk of social costs and the like, but these are petty concerns as compared with the overall framework. What they have done is marvelous and extremely important.

February 9, 2009

Jeffrey Tucker [send him mail] is editorial vice president of www.Mises.org .

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.

There is considerable propaganda attempting to mislead the public into believing that downloading is a criminal act on the part of the downloader, e.g. “Illegal downloads caused considerable losses to the music industry last year” or “If you download copyrighted music you are committing a serious crime”.

So, let’s get the legality of downloading established once and for all:

1. Downloading is the act of communicating a file from a supplier’s server computer to a recipient’s client computer, at the latter’s request, and at the former’s consent.
2. Downloading a file (containing or representing an intellectual work) involves the manufacture of a copy.
3. The copy is manufactured by the supplier (by their server) because they (unlike the downloader) are in receipt or possession of the source work, or have access to it.
4. The manufactured copy is communicated by the supplier to the downloader (the recipient) via a computer network (whether electronically, optically, or by radio transmission, etc.).
5. The downloader receives the manufactured copy, but does not participate in its manufacture (impossible without the source) in the download process.
6. It is possible that ephemeral, intermediate copies were produced by the network and other devices during the transmission of the copy and its storage by the recipient.
7. The recipient (their client computer) may have had to assemble the final file if the copy was transmitted in small fragments rather than in one piece, however, the act of such assembly does not constitute copying.

If the intellectual work is not protected by copyright no infringement can occur.

If the intellectual work is protected by copyright, and the supplier is not licensed by all copyright holders to the work to manufacture and distribute copies, then the supplier may infringe copyright in the process of manufacturing and supplying copies to downloaders.

In no case does the downloader, the recipient of a downloaded file, commit copyright infringement.

Having downloaded, the downloader may then commence the manufacture and supply of further copies to others, which is of course a potential infringement.

Culpability for copyright infringement lies not with who requests an act of copying, nor with who receives a copy, but with who performs the critical act of manufacturing a copy (and who distributes/transmits it).

In conclusion:

• Downloading may involve copyright infringement, but this is not an act committed by the downloader.

There was a very good article on the Million Music blog yesterday:
http://millionmedia.wordpress.com/2008/11/20/bloggers-vs-majors

This asked why music bloggers had changed from sympathy and tolerance toward major record labels to outright condemnation, and wondered if this had been due to the labels’ recent ‘assertion of their rights’ by exercising their powers under the DMCA that had resulted in people’s entire blogs being taken down rather than just an offending post.

So I commented thus:

Individuals (human beings) have natural rights. Corporations don’t, they have privileges.

Copyright is a privilege that suspends the natural right to cultural liberty (specifically the right to share and build upon published works) in order to grant a lucrative monopoly to publishing corporations.

The DMCA is simply an enhancement of powers granted to copyright holders.

So, the majors are not asserting their rights, but exploiting their privileges.

If anyone was going to assert their rights it would be individuals asserting their right to share copies of published music recordings.

Unfortunately, most file-sharers and people who publish blogs containing mp3 files don’t realise they have a right to do what they’re doing.

Users of Google’s ‘Blogger’ service are reliant upon Google, so really they should host their blogs themselves on their own PCs if they don’t want them taken down by those privileged by the DMCA.

The blogger agreed in a subsequent comment with my moral viewpoint, but invited my further explanation.

So I then suggested in a second comment that if the labels kept on using the DMCA (or EUCD) as if it were a cultural sniper rifle, that eventually they’d have so many victims that they’d prompt a rebellion, that the worms would turn – if they haven’t started already. Cultural participants will either develop bullet proof vests (defenses against the DMCA) or will shoot back (use the DMCA against the labels).

Shortly afterwards it seems (from my referral logs) that someone from Universal Music found the post and its comments so disagreeable that they’ve ‘persuaded’ the blogger to discontinue publication.

Time: 21 Nov 2008 11:06am
IP: 167.167.136.2
Host: ip-167-167-136-2.ukrom.umusic.com
Page: index.php
Referrer: http://millionmedia.wordpress.com/2008/11/20/bloggers-vs-majors/
Method: GET
Status: 200

Interesting times…

Scott Carpenter has noticed that a Creative Commons license is worth less than the paper it could have been printed on. Indeed, if it had been printed on paper, it might have been worth keeping.

In Free Culture ‘Take Backsies’ on Flickr Scott tells of how a photographer has subsequently removed the CC licenses applying to his photos on Flickr and reverted to undiluted copyright.

Having promoted the photographer in exchange for the liberty apparently provided by his CC license, Scott no doubt has a bad taste in his mouth now that his liberty has apparently been withdrawn – despite theoretically remaining irrevocable.

This is another reason why copyright is unsuited to digital work. You don’t have a piece of paper on which the license is printed (something that was once difficult to counterfeit).

In terms of online publications, one’s only hope in demonstrating that a liberal license was ever provided is the Internet Archive.

Although, copyright licenses are just as ridiculous as copyright in their application to digital works, they do serve as a form of ward against those who still believe copyright is sensibly applied to them. Thus the GPL needs no power against those who don’t believe in copyright, only against those who do.

Really, when championing free culture, the artist has to make a public statement rejecting copyright. A standard license is not something that can really be ‘attached’ to digital works, and it doesn’t hold much weight if the artist is fickle.

Admittedly, avowals against copyright can be implicitly expressed to some degree by wholly neutralising licenses such as the GPL, but then these are effectively recognised and recorded by a large number of deriving coders.

This is why those in the free culture movement (unlike free software) could never really form a consensus endorsement of a license. The manumission of one’s audience cannot be sufficiently performed by permissive licensing (especially given the pollution of CC’s pix’n‘mix). It needs a public statement rejecting the manacles of copyright that bind them. The artist must tell their audience emphatically that they are, and will always be, free.

Of course, copyleft licenses can still be additionally applied to non-s/w works (such as photos), but then with less reuse, there’s less establishment of their copyleft status.

What you’re left with as assurance is the risked reputation of the self-publishing artist.

As we have seen, the artist can piss about with CC licenses, tweaking the terms, even reverting back to full copyright, and not really worry about this fickle behaviour having much affect on their reputation.

This is all in line with Lawrence Lessig’s misguided belief that copyright can and should be wielded by the author as a means of authorial control rather than be reserved for the publishers it was originally intended for.

This is why an artist’s avowal is far more significant than a CC license, and indispensible for those cultural works that may see little reuse.

It gives us a much bigger clue in determining which kind of artist they are:

1. The Lessigite artist who believes they should control what people do with their published work, and the uses to which it may be put. The sort of artist who one day may feel generous in giving their audience a little more liberty, and another day less, and considers this their authorial prerogative. If you can copy their work, it’s because they’ve permitted you to, not because you have any right to.
2. The libertarian artist who believes that no-one, especially themselves, should control what other people do with their published work, and who will not change their mind. Nevertheless, this artist still expects honour and integrity among their audience, for themselves and their work to be truthfully represented, as they truthfully represent those artists and works they build upon.

Being the latter, this is why on my blog I put my reputation on the line. I don’t just piss about with a CC license.

“I will not accept the enslavement of my fellow man, nor any imposition upon his liberty, as reward for the publication of my art”

That means I reject copyright, and will not assert it except as a means to prevent anyone else asserting it, e.g. via copyleft licenses such as the GPL.

Having a single published statement of my rejection of copyright (its grant to me of the public’s suspended cultural liberty) then backs up any copyleft licenses I might provide for those who find them useful.

Ian Betteridge is bothered.

He’s immensely irritated by those ‘assholes’ who give good businesses grief by being big and clever – or not.

In this case, the business suffering from grief – in the form of RIAA’s litigious attention – is Muxtape, an online service that simulates the liberty we used to enjoy in recording great music from the radio receiver or Gramophone records onto Compact Cassette tapes in the privacy of our own homes.

Fortunately, some kind coders realised they could greatly improve the service by enabling people to actually make recordings, rather than just pretend they did. There is no harm in this, after all, Muxtape remains unaffected. The same information is sent to users as normal, it’s just that thanks to neat scripts the users actually get to hold the cassette tapes they so lovingly made in their grubby little hands. The digits in their digits, as it were.

So, strangely, just because of this user enhancement, completely beyond the control of Muxtape, the RIAA is leaning on it. Because the RIAA does that sort of thing – to protect its monopolies concerning who gets to make recordings.

It seems Ian Betteridge blames those who improved Muxtape, rather than those monopolists who would prefer it remained a sham, remained a child’s toy as in “Let’s pretend we’re making recordings”, and “Let’s pretend the cassette tape on the screen is actually real”, rather than a useful tool for adults.

I disagree and suggest that we should not blame those who add value just because it upsets those who’d rather that value not be added.

Moreover, on the subject of assholes, these aren’t those big and clever coders who recognise the technical insignificance of the difference between ‘streaming’ and ‘downloading’, but those luddite legislators who decided that the law should recognise a significant difference. The same digital bits are communicated. The law simply holds that their different names, in indicating a different metaphor, distinguish between the delivery of a copy of a recording and its recordable transmission. This reveals the law to be an ass when it comes to the communication of information. It is folly to shoehorn the Internet into metaphors of inked paper and telegraph.

Revealing this anachronistic sophistry may well upset devout believers in a digital distribution/transmission duality. It is also likely to cause political and litigious grief to those businesses attempting to rely upon it – this technically insignificant, but legislatively critical distinction. However, there’s a greater cause at stake than just avoiding any erosion of a fragile metaphor that might bring little businesses to the bullying attentions of their bigger brothers.

The moral imperative of our time is to abolish these mercantile privileges of monopoly, that not only allow corporate bullying and extortion between businesses, but also allow corporations to persecute individual members of the public should they fail to accept the suspension of their cultural liberty.

Having the streaming/downloading sophistry revealed is an inevitability for all businesses, large or small, YouTube or MuxTape. Those entrepreneurs in this field will be technically astute enough to understand the fragile, technically insignificant, though legally significant, difference between streaming user uploaded works and file sharing. It is not the responsibility of the public to cooperate in maintaining any pretence or archaic law: that, of the music legitimately communicated to them, some bits they may keep, some bits they should discard, some bits they may copy, and some bits they should not.

So, rather than admonish people for pointing out the elephant in the room, they should be commended, for the sooner the law finally recognises it the better.

Free speech is free communication of one’s own or another’s published intellectual works, whether by voice, morse code, or TCP/IP, and whether by physical delivery of paper, piano roll, magnetic tape, acetate discs, or memory stick, and without grant of monopoly over any particular pattern or arrangement of expression.