On Annemarie Bridy’s Freedom-to-Tinker post Copyrights, Fundamental Rights, and the Constitution a commenter by the name of Mike Lippert seems to think I am claiming that copyright is a natural right.

“Copyrights (and patents) seem clearly legal rights created and enforced by government, not natural rights”

Mike,

It’s good that you, me, and the judiciary recognise and accept that copyright (viz Statute of Anne 1709/1790 onwards) is a privilege created/granted by the state, to be enforced/prosecuted by the holder (albeit relatively recently augmented by state assistance thanks to concerted lobbying), at the holder’s pleasure.

The Constitution empowers Congress to secure the author’s (already existing/natural) exclusive right to their writings. It does not empower Congress to grant a privilege.

If the author already has a right, it’s a right they’re born with – not a ‘legally created right’ granted to them, or one they purchased/inherited/received from another author.

I have not actually equated common law rights with natural rights. However, it would be interesting to enumerate those common law rights that can be distinguished from natural rights, and to analyse precisely how common law is not simply an evolving codification of natural law. But, I digress.

By “aka natural right”, I suggested that Madison, in saying that copyright had been solemnly adjudged to be a common law right, intended his audience to understand that copyright was a natural right (inherent/innate to the author) that, by the proposed clause, Congress should therefore be empowered to secure.

If it wasn’t a common law right, and just another state granted privilege (such as a monopoly or Letters of Marque), then Congress would have to be empowered to grant it – not just empowered to secure a pre-existing right.

Remember, that while copyright/SoA was not unfamiliar to The Framers (or various states’ legislatures), the Constitution could not admit the existence of privileges already granted – in the new or old world. This is why Madison had to suggest that copyright wasn’t a privilege – in order that when he legislated the Statute of Anne as the 1790 US copyright act, people had already been primed to recognise this as law that ‘secures a common law right’ (though it is of course nothing of the sort, but the granting of a monopoly for the benefit of press & state).

The point is, the clause doesn’t actually empower the granting of copyright or patent, despite enabling Madison’s subsequent granting of those monopolies to proceed with little or no protest. We thus have the granting of the monopolies we call copyright and patent as a fait accompli, and today monopoly-loving lawyers bend over backwards to convince everyone that Congress, of course, had the power to grant these monopolies.

It’s all rather academic really. As Annemarie observes, the power of Congress is no longer limited by The Constitution, or at least, by strict readings of it.

James ‘Dr Frankenstein’ Madison chose to unleash Queen Anne’s ‘creatures of statute’ upon the American people, and now they roam the entire planet like Monsters from the Id.

Derek Bambauer suggests the cartel’s attempt to frame copyright as ‘a natural right to be secured’ is greenwashing. I suggest it is because they’ve recognised I have a point – the US Constitution did not empower the granting of a privilege. See my argument with Karl

The US Constitution empowers Congress to SECURE the author’s (“solemnly adjudged to be a common law”) right to exclude others from their writings for limited times.

In 1787, in the New World and Old, most of those in the publishing industry were kidding themselves that a reproduction monopoly was a natural right and that the Statute of Anne (and various states’ legislative imitations) was a paltry legal recognition thereof. This is why James Madison (despite Jefferson’s suggestion to explicitly empower the granting of monopolies) knew he only needed to empower Congress to secure a right, in order to grant the monopoly of copyright.

By legislating the first US copyright act (Statute of Anne with minor edits) in 1790, most of those interested would accept this as the securing of a natural right (despite the fact that Madison & Jefferson knew damn well that copyright was the granting of a monopoly, not the securing of a right) – “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”.

Madison (who wanted copyright enacted) knew that a clause empowering Congress to grant monopolies would not have been ratified, hence his insertion of a clause that ‘secured a right’ – a pre-existing right (“endowed by their Creator with certain unalienable Rights”).

The point is, although the clause was APPARENTLY sufficient to enable Madison/Congress to grant copyright (by way of securing a common law right as others would assume) it was not ACTUALLY sufficient. Copyright is the grant of a monopoly and not at all law that secures a common law right.

So, Congress did not have power to grant copyright. It only had power to secure an author’s natural right to exclude others from their writings, i.e. our physical power to exclude burglars from copying our writings, such as our memoirs in our desk drawers (a natural right) – not to exclude those who purchase copies of those memoirs from us, from making and distributing their own copies (a privilege).

So, the cartel, conceding that the US Constitution empowered only the securing of a natural right, must now pretend that a reproduction monopoly is a natural right. And like James Madison, they will lead their audience to believe this without actually asserting it.

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.

This is the first of a four part series examining the way in which people who should know better maintain and reinforce the con against the US citizen that copyright and patent are sanctioned by the US Constitution.

As should be increasingly obvious in these days of instantaneous diffusion, the US Constitution is being abusively cited in ever more desperate attempts by the incumbent monopolists to demonstrate a solid foundation for copyright and patent. Naturally, the constitution can do nothing of the sort, so the corporate lackeys who resort to such abuse in pretending otherwise are attempting a con. In this way, it is solely a matter of confidence that anyone is able to persuade their audience that copyright and patent are natural rights of the individual and properly recognised by the US Constitution as deserving of protection by a necessarily empowered government.

Upon inspection there are no grounds for such a proposition. All grounds that are proposed materialise from external motives, such as may be inspired by fiscal prudence, e.g. “Monopolies are socially beneficial sacrifices of liberty – well, they certainly benefit us!”.

If you or your audience want to believe that copyright is not only good, but constitutional, perhaps because your business relies upon copyright or its litigation, then it’s not too difficult to kid yourself or your audience that it is.

Perhaps such devout believers rely upon this deceit so they can sleep soundly despite having financially wrecked the lives of Jammie Thomas, Joel Tenenbaum, and Brittany Kruger? If their persecution of such naïfs for sharing music is sanctioned by the constitution then it is surely just and ethical? On the other hand, if copyright is properly recognised as unconstitutional qua unethical, then will more people be prepared to point out the psychotic Emperor’s lack of robes?

Fortunately, lawyers must take pains to avoid lying, so in reading their allusions to the constitutionality of copyright one can sometimes discern the truth – if one shields one’s eyes from contrary insinuation.

Allow me to introduce you to Ms Dale Cendali, Intellectual Property Partner, Kirkland & Ellis LLP and Adjunct Professor, Harvard Law School. Apparently “She is a recognised leader in intellectual property (IP) litigation, who has been described by Chambers & Partners (US law firm) as ‘one of the best lawyers in the country’.”

Here is an example of her apparent confidence that copyright is sanctioned by the US Constitution:

From Copyright and wrongs an Economist.com debate.

From its inception, the United States has been a society of innovators. Americans place a high value on original thought and expression, and have benefited from innovation both in terms of technological advances and by a culture enriched by creative works. It is no coincidence that the constitution itself, inheriting the notion from protections already existing in the UK, seeks to boost creativity by empowering Congress “[t]o 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” (US Constitution, Art. I, Sect. 8, Cl. 8). The concept underlying current copyright law is elegant in its simplicity: In order to achieve “Progress of Science and the useful Arts”, the law protects the ability of an author to recoup his or her investment in creating a work by granting exclusive rights to exploit that work for a limited time. The creation of films, computer programs and other creative works can be very costly and the possibility of returns risky. But individuals and firms are willing to invest resources in these projects in large part because of the prospect of greater future returns.

We can quickly pass over the insult that the Framers wished to inherit the UK’s monopolies of copyright and patent in the US Constitution. That there was enthusiasm elsewhere for those monopolies to be legislated is unsurprising, but that doesn’t mean the clause was inserted precisely so sanction for those monopolies could be misconstrued.

Notice that Dale doesn’t say that the Constitution protects, but that the law (copyright) protects, and that copyright law protects by granting ‘exclusive rights’. Moreover, note that she doesn’t even attempt to say that these ‘rights’ are granted to protect an author’s exclusive right (how can granted rights protect natural rights?), but that the granted ‘rights’ are granted to protect revenue and achieve progress.

Well, the cat’s out of the bag now.

How can the Constitution specify the securing of ‘rights’ that were granted in legislation years later?

It can’t – those legally granted ‘rights’ weren’t in existence at the time of the Constitution and so couldn’t be recognised by it. The Constitution can’t grant power to secure ‘rights’ that don’t yet exist, and the Constitution certainly can’t grant rights, because rights can’t be granted by definition. It can’t even specify the granting of privileges – even if they may only later be termed ‘legal rights’ or simply ‘rights’.

Ms Dale Cendali is expecting her audience to conflate the modern meaning of the term ‘exclusive rights’ (legally granted ‘rights’ aka privileges) with the term exclusive right as used in the Constitution, which can only refer to the individual’s natural exclusive right to their writings/designs, a right that is imbued in man by nature and to be protected by legislation (via power granted to congress for this purpose), not a monopoly granted by legislation. The Constitution does not empower congress to grant monopolies or any other privilege.

The Constitution specifies the securing of an author’s pre-existing, natural exclusive right. It does not say that the privilege of a monopoly (copyright) should be granted such that it may be mischievously described as a ‘legally granted right to exclude others’ from reproduction of one’s published works – or ‘exclusive right’ for short.

The Constitution refers to the exclusive right that already exists, not to a privilege that is yet be created (and to be given a confusingly similar name).

So Cendali segues from “To promote progress, congress is empowered to secure an author’s exclusive right to their writings” into “To promote progress, congress is empowered to grant authors ‘exclusive rights’ defined as a transferable reproduction/performance monopoly to enable considerable profits to be made by their publishing agents at the expense of US citizens’ liberty.”

Clever eh?

As if to add justification for an unjustified misinterpretation she points out that, with the prospect of considerable profits, monopolies encourage risky investments. Sure, but the constitution said nothing about granting monopolies or the need to provide lucrative rewards to authors or inventors (especially not their agents or investors). That monopolies are lucrative to those to whom they are granted is obvious. The problem is the considerable loss of cultural liberty to US citizens, and the fact that monopolies represent a net cost to the economy. Preventing competition in order that higher prices are enjoyed by favoured parties redistributes wealth. It doesn’t contribute any productivity. On the contrary, there is a net loss in productivity due to tax required for policing. Monopolies also impede technological and cultural progress due to reduced knowledge sharing.

Can Dale insinuate anything in support?

The constitutional wisdom in granting creators exclusive rights in order to encourage innovation has resoundingly proved correct.

It almost sounds as if she’s saying that the constitution wisely granted creators ‘exclusive rights’ doesn’t it? It might sound like that, but she isn’t, and it didn’t.

If the ‘exclusive rights’ were granted some years after the Constitution that can’t represent ‘constitutional wisdom’, i.e. wisdom on the part of the Framers.

The ‘exclusive rights’ are not even the same exclusive right that is referred to by the constitution, but privileges granted by later legislation. She is suggesting that whoever legislated those privileges was ‘constitutionally wise’ – a rather dubious contention (given the Constitution sanctioned no granting of privilege).

It would have been wise of the legislators if they had actually adhered to the wisdom of the constitution and restricted themselves to enacting law that secured an author’s and inventor’s exclusive right, rather than completely ignoring that to instead grant a transferable monopoly for the lucrative exploitation of printers and mass producers – making a considerable sacrifice of each US citizen’s liberty.

Are you still confident that the monopolies of copyright and patent encourage innovation? They certainly encourage publishers and industrialists to obtain and exploit these monopolies, but that’s not the same as innovation.

So, aside from issues of veracity, do you feel Ms Dale Cendali wishes her audience to believe that copyright is constitutional? It seems to me that she does.

She doesn’t go so far as to say it is constitutional, but then if it was, do you doubt she’d be at all hesitant in asserting it?

So, we can conclude that precisely because of Ms Dale Cendali’s clear effort to insinuate that copyright and patent are constitutional, without actually going so far as to state anything to that effect, she recognises that there would be no truth in such a contention.

And ye shall know the truth, and the truth shall make you free.

The privileges of copyright and patent are unconstitutional.

Many people confuse ‘copyright’ with ‘exclusive right’ (as recognised by the US Constitution of 1787), and thus presume that copyright is both a natural right and constitutional. Some people even cite the constitution’s recognition of ‘exclusive right’ as equivalent to recognising copyright as a natural right, and so term this the ‘copyright clause’¹.

There is also a misguided notion that the constitution can grant rights to US citizens, and that copyright is such a granted right. It can do no such thing, and did not, as it instead only recognises the natural rights that the citizens already have that they empower the government to secure². Copyright is a mercantile privilege³, enacted after the constitution, supposedly⁴ to persuade authors to release their writings from the protection of their exclusive rights for the public’s benefit – by granting authors the reward of a potentially lucrative reproduction monopoly over their published works. Thus copyright is a privilege granted by the government – unconstitutionally.

Nevertheless, despite being a mercantile privilege, copyright both helps secure⁵ an author’s exclusive right to their (unpublished) writings and incentivises the author to publish them (given the monopoly).

To help clear up any confusion between ‘exclusive right’ and ‘copyright’, I will now explain what an author’s exclusive right is, and why it is natural and self-evident, and consequently able to be recognised by the US Constitution.

Exclusive Right vs Reproduction Monopoly

Secondary to a human being’s natural right to life, is their natural right to privacy. This is the individual’s natural interest and ability to exclude others from a space about themselves, their dependents, and their possessions, and from within their larger enclosures thereof such as houses. This space is known as the individual’s private domain, and it is from the individual’s right to privacy (to secure and exclude others from their private domain) that material and intellectual property rights derive.

There are three key mechanisms for obtaining property, which are:

1. gathering (from one’s environment whether a natural resource or another’s abandonment)
2. creation (physical or mental labour), and
3. exchange (from receipt of purchase or gift).

In all cases private property is obtained by introducing objects into one’s private domain (each with a degree of intellectual and material component).

An author’s intellectual works that they fix in a physical medium, especially their original writings, are self-evidently the author’s intellectual property. These writings are what they have a natural exclusive right to, especially given that in the traditional case of writing they must first manifest under the private hand of their author’s body, and from thence to storage elsewhere within their private domain. It is up to the author whether they keep their writings private, exclusive to themselves, or whether they pass them on to others (either included in their confidence, or for public dissemination).

Thus, having the natural right to exclude others from their private domain, an author has the natural right to exclude others from any action concerning their private writings, whether reading, copying, performing, communicating, removing, destroying, or anything else. However, they only naturally have this right over the writings within their private domain. The author has no natural ability and consequently no natural right to control what others may do with the writings the author may have provided to them (whether by purchase or gift)⁶.

Unfortunately for US citizens, their exclusive rights to their writings, designs or any other of their intellectual works or property are rather poorly protected. Despite being constitutionally empowered to secure them, the state does not police and prosecute those who violate an author’s exclusive right to their writings – as it should (and as it does for their material property).

So, you may now see why I so often argue that it would be better if the unconstitutional reproduction monopoly of copyright was abolished (being intended for exploitation by the press), and was replaced by law that properly secured an individual’s exclusive right to their writings, designs, and other intellectual property. The constitution is supposed to be about equally protecting the natural rights of the individual in a stable and free society, rather than to be a means of privileging commercial corporations above them, to exploit them (irrespective of alleged societal benefits).

Thus ‘exclusive right’ is an individual’s natural intellectual property right that is not properly secured despite constitutional recognition, and ‘copyright’ is an unconstitutional reproduction monopoly that only coincidentally helps the wealthy individual (or their publishing agent) secure their exclusive right, but primarily rewards the publishing corporation at the expense of the people’s suspended cultural liberty.

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¹ This puts the cart before the horse, given the constitution can only recognise the natural law that precedes it. It can’t recognise the subsequent US copyright law, because that must logically derive from the constitution and have its sanction (it cannot both inform it and derive from it). The constitution is also unable to recognise British copyright (of 1710, which also didn’t recognise copyright as a natural right).

² From WikiPedia – Rights of Man:

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.

Government’s sole purpose is safeguarding the individual and his/her inherent, inalienable rights; each societal institution that does not benefit the nation is illegitimate — especially the Monarchy, the Nobility, and the Military.

³ Also perniciously termed a ‘legal right’ as some prefer, often dropping the ‘legal’ qualifier to insinuate it has equivalent standing to a natural right (which now tends to need such qualification given contemporary abuse of ‘right’ in place of ‘privilege’). One must thus be careful to distinguish between law made to protect natural rights and law made to grant privileges, i.e. especially such unethical ‘legal rights’ as copyright and patent.

⁴ It is more likely that copyright was created to benefit printers, coinciding with the state’s interest in obtaining leverage over the press.

⁵ Being a privilege rather than a right, copyright can typically only be exploited and enforced by wealthy publishers with their expensive reproduction machinery and sizeable litigation budget.

⁶ They may be granted the privilege of doing so, as a favour from a king perhaps, but that would be inegalitarian, as it suspends this liberty from all in order to reserve it as the exclusive privilege of the favoured subject (or their assigns).

If the instantaneous diffusion of the Internet reveals copyright as an anachronism, it also helps manifest multifarious creation myths.

Many understand that copyright is a monopoly, and many recognise that the Framers of the US Constitution expressly abhorred monopolies and sought to prevent them. So, it’s quite odd when some even suggest that the Framers specifically wished to sanction monopolies in the Constitution:

Mike Masnick in a recent article of his on copyright comments that “To the framers it was a monopoly right granted for the purpose of incentivizing more content.”

To the Framers there was no copyright. There were no rights to be granted (rights can only be recognised, not granted), and certainly no monopolies to be granted, privileges that would interfere with the recognition that all men are created equal.

The Constitution of 1787 could not recognise copyright, because it was not about recognising reproduction privileges that may have already been legislated in Europe (1709), but about recognising citizens’ natural rights and what power should be granted to the state in protecting these.

The Framers recognised the natural, exclusive rights of authors and inventors, and considered that the state should have the power to secure these rights for limited times, e.g. the lifetime of the author/inventor.

The Framers couldn’t possibly recognise a privilege of copyright since such a statute would have to arrive after the Constitution – it couldn’t occur before it. The Constitution can only recognise what precedes it, i.e. natural rights. It cannot paradoxically recognise the legislation that was based upon itself or that later claimed its sanction. So, the Constitution of 1787 could not recognise the US Copyright enacted in 1790.

Copyright claims constitutional sanction, because copyright clearly helps secure exclusive rights. Unfortunately, copyright does more than this by granting an exclusive reproduction privilege to published works, i.e. a monopoly over reproduction. Published works lie outside of an author’s exclusive right, so any extension is an unsanctioned privilege (for however long a term it is granted). The Framers specifically expressed their abhorrence of monopolies, so copyright clearly exceeds constitutional remit. It is also worth noting that ‘limited times’ applies to the duration for which authors’ exclusive rights are protected, not the duration of any transferable monopolies granted over them (invariably enjoyed by publishing corporations).

So, whilst some of the Framers may have lived to see the first copyright law become enacted (not that any of them were involved in its draughting), it is not copyright that the Constitution sanctioned, but the securing of exclusive rights. The US Copyright of 1790 was heavily influenced by the 1709 Statute of Anne (which also didn’t recognise a reproduction monopoly as a natural right – hence the need to legislate such a privilege).

So, three years after the Framers agreed that monopolies were to be deprecated, good old George Washington rubber stamps copyright – the most egregious monopoly ever invented.

All that had to be done to exceed the power granted by the Constitution was to re-interpret ‘exclusive right’ to include control over works even after those works had clearly been released by their author from his natural, self-evident right, to exclusively control. Magnifying this excess was to name this privilege as if a right, ‘copyright’, and to make it transferable, and thus inevitably conveying monopolies back to the very publishers already recognised as the worst abusers of such.

So, please, let’s not conflate the Framers and their Constitution to protect citizens’ rights, with the legislators of copyright three years later and their desire to reward publishers with transferable monopolies (via initial attachment to original works – that co-incidentally also protected authors’ exclusive rights).