Page 14 | Cultural Liberty

The Jabberwock, the Bandersnatch, and the Recording Industry · Sunday September 28, 2008 by Crosbie Fitch

As Gerd Leonhard observes with his experienced and perhaps jaded eye, entrepreneurs such as Justin Ouellette (Muxtape) that step foot in the recording industry’s territory with a view to doing business there may well be intrepid, but they may also be foolhardy. If they don’t fall foul of the jaws that bite or the claws that catch, they will at least gain the wisdom that you either beat them on fresh territory, or you join them on theirs. You do not beat them on their turf.

Here’s a fragment of Justin’s Muxtape story:

In May I had my first meeting with a major label, Universal Music Group. I went alone and prepared myself for the worst, having spent the last decade toeing the indie party line that the big labels were hopelessly obstinate luddites with no idea what was good for them. I’m here to tell you now that the labels understand their business a lot better than most people suspect, although they each have their own surprisingly distinct personality when it comes to how they approach the future. The gentlemen I met at Universal were incredibly receptive and tactful; I didn’t have to sell them on why Muxtape was good for them, they knew it was cool and just wanted to get paid. I sympathized with that. I told them I needed some time to get a proposal together and we left things in limbo.

A few weeks later I had a meeting with EMI, the character of which was much different. I walked into a conference room and shook eight or nine hands, sitting down at a conference table with a phonebook-thick file labeled “Muxtape” laying on it. The people I met formed a semi-circle around me like a split brain, legal on one side and business development on the other. The meeting alternated between an intense grilling from the legal side (“you are a willful infringer and we are mere hours from shutting you down”) and an awkward discussion with the business side (“assuming we don’t shut you down, how do you see us working together?”). I asked for two weeks to make a proposal, they gave me two days.

Which provides some context for Gerd’s observations:

It totally amazes (but not surprises) me how much Justin’s story is similar to my own experiences with Sonific, my last digital music startup, and how much it matches with the stories I keep hearing from dozens of brave if maybe somewhat ‘fresh’ digital music entrepreneurs every single day: you bring golden ideas to the record industry and they will act like it’s dirt – simply because it means they will need to share the control. Most of the major label execs will eagerly suck up all the information you can give them only to then a) drop all communications and reverse-engineer what you do b) present you with terms that would make Stalin look like an altruist. Muxtape draws the right conclusion: start from scratch, directly with the artists.

Start from scratch, and on fresh turf not controlled by the industry. Even Justin considered this, though he initially ruled it out:

As I saw it I had three options. The first was to just shut everything down, which I never really considered. The second was to ban major label content entirely, which might have solved the immediate crisis, but had two strong points against it. The first, most visibly, was that it would prevent people from using the majority of available music in their mixes. The second was that it did nothing to address the deeper questions surrounding ownership and usage for everyone else who wasn’t a major label: mid-size labels and independent artists who have just as fundamental a right to address how their content is used as a large corporation, even if they don’t carry quite as big a stick.

It’s plain that Justin has recognised he can’t deal with the barons, but it’s also clear he’s still failed to recognise why in his homesteading forays he could so unwittingly stumble across their now unguarded borders. He also doesn’t appear to recognise this as an indication of the barons’ doom, why their territory must not only cease expanding, but from the disintegration of its imperial overexpansion must soon fade into legend as a land of mythological and invented creatures. Artists never did, do not and never will have a fundamental right to control the use of their ‘content’. Publishing corporations were certainly granted such a privilege by the Queen of Hearts, but this is a supernatural power that even in simulation takes the might of governments to enforce, and the wealth of its commercial exploitation to prosecute. Fortunately, the rude people are yet more massive and mighty – and when they realise the myth of copyright has no greater force than fear, its magical thrall over them disappears. The masses share their music once more and the old matriarch’s monopolies collapse like a house of cards.

Tim Westergren, evidently a mythologically familiar entrepreneur, is inclined to have Pandora open the box of all musicians’ music to the four corners of world. However, he has also struggled in his swordplay and has had to sometimes rest by the Tumtum tree.

It continues to astound me and the rest of the team here that the industry is not working more constructively to support the growth of services that introduce listeners to new music and that are totally supportive of paying fair royalties to the creators of music. I don’t often say such things, but the course being charted by the labels and publishers and their representative organizations is nothing short of disastrous for artists whom they purport to represent – and by that I mean both well known and indie artists.

So that he could once again provide his services in the UK, I suggested to him that Pandora should simply ditch all licensed music (except where copies were already possessed by the listener – the playback of those copies being interleaved with streaming of others) and focus solely on the recommendation/discovery of new musicians who’d had the sense to unilaterally negotiate permanent zero licensing rates (thus neutralising the ability of collection societies to extort money from the promoters among their audience).

Etienne Handman (COO) replied with considerable skepticism as to my suggestion being financially viable (let alone practical). I suspect this is because they’re still focussed on chasing old money (promoters and advertisers), rather than the good coin of the people who actually value their service, i.e. musicians and their audiences.

After all, it is the audience who has the money and the musician who has the music. These are the two parties who have business with each other, who want to exchange music for money, and money for music. This new online world in which artist directly encounters audience is the lush, untrodden turf in which entrepreneurs should look to provide their services, facilitating production, performances, discoveries, and exchanges. This is the new marketplace for music. Moreover, this is no place for the hindrances of old, the anachronistic privileges and unfair monopolies that mollycoddle music publishers at the expense of all music lovers and all but a minority of musicians.

We are already seeing a hint of the entrepreneurs to come. We have library facilities such as Jamendo who’ve recognised the encumbrance of copyright does not help new bands self-promote themselves, and recommendation facilities such as Pandora who’ve recognised that music is better recommended by merit than money (Payola). So, there’s still room for intermediaries between audience and artist, but they’ve really got to add value if they want to earn money, not remove it (DRM, advertising, etc.).

This is why, if you are an entrepreneur in the business of digital art production, I caution you to venture only into the largely undiscovered territory of non-copyright based revenue models. This means steadfastly avoiding incursions into, or contamination from, the established territory of the traditional music industry and its copyright polluted works. Leave them to their anachronistic business of selling snow to Eskimos, selling copies to audiences who can quite easily make copies all by themselves. Pissing on your own product, making the snow yellow (adding DRM) and litigiously biting the hands that feed you are the marks of a senile industry that has reverted to rabid territoriality and reliance upon ever greater state support (DMCA). The old dog may well invite you round for dinner to teach it your new tricks, however its remaining survival instinct is not to learn, but to eat. So beware the jaws that bite, the claws that catch, beware the Jubjub bird and shun the frumious Bandersnatch.

In averting the ending of this post on a sour note let’s look forward to that frabjous day when copyright has been abolished, all musicians and their audiences are free, and we can all chortle in our joy, “Callooh! Callay! The Jabberwock is dead!”

Comment

Creation Confers Ownership · Wednesday September 24, 2008 by Crosbie Fitch

As Stephan Kinsella points out in a recent Lew Rockwell podcast, there is a degree of confusion, even among libertarians, concerning the idea that creation of an intellectual work confers ownership of that work.

The confusion is really over whether creation confers ownership over a work and all its copies or likenesses.

Naturally, if an author writes a novel, they own that intellectual work. It is their natural intellectual property. However, if they manufacture and sell a copy of the novel as a book, then the purchaser becomes the owner of that book and the intellectual work that is the novel within it. The book is the purchaser’s material and intellectual property, just as the author’s retained original manuscript is the author’s material and intellectual property.

Naturally, an author cannot continue to own the property after they have sold it, whether it is material or intellectual. Conversely, sale of a copy doesn’t relinquish ownership of the original from which it was copied.

However, thanks to the transferable privilege of copyright, the state grants a monopoly over the manufacture of copies to the copyright holder – assuming they are wealthy enough to prosecute its enforcement (generally only large publishing corporations). The author is the initial holder of the copyright to a work.

Nevertheless, even in the presence of copyright, purchasers of books still own the material and intellectual property they represent. They’ve simply had their rightful liberty to manufacture copies suspended in order to reserve this for those privileged by copyright.

This unnatural monopoly confuses some to believe that intellectual property is about an author or creator owning all likenesses of their intellectual works, that simply by being the author they are rightfully able to control the use of their original work and its likenesses or copies wherever they may be, even though they do not own the physical medium in which the intellectual work is fixed. This may well be an attractive idea (and lucrative as far as it can be enforced), but it is unnatural as it presumes an evidently supernatural power of the author, that they must have a reach beyond their own private domain and not only into the global public domain, but also into the private domains of others, far beyond their own neighbourhood and onto the other side of the planet.

An individual self-evidently has a natural control over their private domain, and as this by definition excludes the public, such control cannot impact the liberty of the public in their own affairs. However, to claim control over one’s intellectual work even after one has released it from one’s private domain to publish or privately sell, is a control that necessarily requires a corresponding constraint over others, an unethical suspension of the public’s natural liberty to communicate and build upon the culture they individually and collectively possess.

Thus creation confers ownership of an intellectual work, but it doesn’t spookily confer ownership over all its copies. Each copy exists independently (copyright notwithstanding).

So, when you hear some argue that ‘creation doesn’t confer ownership’, it should really be qualified as “Creation doesn’t confer ownership of all copies and/or likenesses of an intellectual work”.

Putting it simply:

Creation confers ownership
Purchase(exchange) confers ownership

Both creation and purchase are mechanisms for introducing property into one’s private domain and obtaining ownership thereof.

This applies to intellectual property as much as material property.

If someone creates/manufactures new property (an ‘original’ work or a copy of another item of their property – whether they ‘originated’ that or not) and sells it, the purchaser owns that property. The vendor’s natural rights over their property don’t interfere with what is now the purchaser’s property, nor do the purchaser’s natural rights interfere with the vendor’s- naturally.

Unfortunately, privileges given to filers of ‘novel’ mechanisms and fixers of ‘original’ works, most certainly do interfere with everyone’s natural property rights.

Thus, if people insist on misapplying the term ‘right’ to these privileges, then as Stephan demonstrates, we have to term them unnatural or ‘phony’ rights, thus “Copyright is a phony right”.

However, intellectual property remains natural. The creation of intellectual works confers their ownership to their creator, and the owner of such intellectual property, as with any owner of property, may transfer ownership by physically transferring the property. It is only the privileges pertaining to IP that are unnatural.

It is possible that some IP maximalists who’d like to pretend their privileges aren’t phony rights, but are actually natural, would go further than the legislated privileges they already enjoy and claim that creation/discovery confers ownership over all likenesses. This is plainly supernatural (only a deity or his church could be so bold), and its enforcement is beyond even the superhuman power of the state to achieve – as even some IP maximalists are finally beginning to recognise.

This is why I reject the over simplistic statement that creation does not confer ownership of an intellectual work. It does, as any author or artist instinctively knows. To insist otherwise cannot endear artists to the cause of cultural freedom, where artists are free to exchange and build upon culture, and free to exchange the value of their labour, their intellectual property, in a free market. Authors, artists, inventors, all own the work they create – they always have done and always will.

However, it remains a distinct truism that creation doesn’t confer ownership over all copies and likenesses. In fact, nothing natural can confer ownership over all copies and likenesses, except legitimate possession (one continues to own stolen IP despite it being within a thief’s illegitimate possession). Thus if you wish to own all prints of a watercolour you created then you must go out, repurchase and repossess them from whoever currently owns them. This cannot be done by holy fiat.

In wondering if there are any cases in which even creation fails to confer ownership of an intellectual work, Bill Stepp proposes the obscure thought experiment of whether a burglar can claim ownership of a work they produce in someone else’s private domain using someone else’s materials.

If you think of private domains as bubbles, and that bubbles may exist within others, then the burglar has a tighter private domain about his body even as he invades the looser private domain of another’s house.

A burglar owns the IP they create even in someone else’s private domain. They may not own the materials, and may in the course of their activities cause material damage, but burglary, material theft/damage, has no bearing upon the burglar’s ownership of their IP.

For example, an itinerant poet may burgle into someone’s beach villa, and whilst lazing upon its sunlit veranda sipping a G&T they’ve stolen from the fridge, scribble down a wondrous poem upon some notepaper they’d found in a desk drawer. That poem is nevertheless theirs, their intellectual property, even whilst they violate the material property rights of the villa’s owner. The owners may rightfully claim invasion of privacy, breaking & entry, theft/damage/destruction of notepaper, etc. But, the poem is not forfeit (however valuable), although theoretically, as one of the poet’s assets they may end up needing to realise its value in order to make restitution for their crimes. By way of comparison, just as the poet may steal chewing gum to repair a hole in his old cabriolet’s roof, his car is not automatically forfeit by dint of its proximity or contagion. Theft does not sanction theft, only an arbitrated remedy and failing that, rehabilitation. Another way of looking at it is that if the poet had instead been invited in from the beach by the resident owners of the villa, and had created the poem, it would still have been his IP despite not being his villa, ink or paper.

In conclusion, whilst state granted monopolies are alien to liberty and libertarianism, intellectual property is quite natural (as most authors and inventors recognise). It is only the state granted monopolies of copyright and patent that privilege filers/fixers (‘creators’) of IP that are unnatural.

As for creation, it certainly confers ownership over what one has created, but that ownership does not naturally continue after one has parted with what one has created, e.g. via abandonment, gift, or exchange. Thus one cannot sell the material of a physical work whilst retaining ownership of the intellectual work within it (since parting with the medium parts with the expression). More importantly, creation cannot confer ownership through similarity whether by likeness or through copying. Creating/inventing a novel knot cannot confer ownership over all indistinguishably similar knots and their application, but this doesn’t preclude owning the knots and the secrets of them that are in one’s possession. Purchasers of such secret knots similarly own them.

I hope this reduces any confusion libertarians may have when attempting to understand natural intellectual property and how ownership in intellectual work naturally propagates, and is interfered with by unnatural intellectual property privileges such as patent and copyright.

Comment

Artist and Audience Alone · Thursday September 18, 2008 by Crosbie Fitch

Dear Digital Artist,

You asked if someone could succinctly explain what the future holds for digital artists.

Let’s have a go:

The market for copies has ended. You will never be able to sell copies again (everyone can make their own at zero outlay and extreme convenience).
People will not pay for what they already have – as a general rule.
However, no-one else can make art like you can. You still have a natural monopoly even if your unnatural one has ended, so exploit it.
Your art is your ambassador (don’t waste money or effort trying to force people to like you or your style). Therefore encourage people to promote your music by playing it, sharing it, building upon it, and ideally letting people know it’s you who produced it. However, don’t get bolshy, demanding credit, or forbidding people from certain honest uses, e.g. making money from your art (you can’t expect funding if you deny it to others).
You don’t sell what you’ve already sold or given away (remember, people don’t pay for what they already have). You sell yourself and the art you’ve yet to produce and publish. Thus you invite your growing audience to patronise your artistic production (commission more work, or specific works).

So what does the future digital art production process look like?

Production – provided by artist, funded by audience: patronage
Promotion – provided by audience: word of mouth and online socialising, blogging, discoveral agencies, etc.
Reproduction – provided by audience: individual and commercial file-sharing
Distribution – provided by audience: individual and commercial file-sharing

From now on, it’s just you and your audience. You make the art, your audience enjoys it and pays for more.

The publisher has disappeared from the value chain.

The copy as a saleable product has disintegrated – there is no copy – there is only art you have released and art you have not.

The market stall, the table across which you and your audience meet to exchange art for money, money for art, is the Internet, with its growing number of facilities that let you engage in agreeable business with each other.

Questions?

Who’s going to facilitate my audience funding me?

I and a few others (see Peers) are working on online facilities to enable direct payment from audience to artist.

What are these ‘discoveral agencies’ you mention?

They are services that help people find artists to their taste, e.g. Last.FM and Pandora help people discover new musicians based on the musicians they’ve already discovered.

Can I afford a commercial file-sharing service?

MiniNova is one that uses advertising to support its free reproduction and distribution service, so that should indeed be quite affordable. Also see alternatives.

I thought everything in the future was going to be funded by advertising?

Advertising is certainly going to play some part in the next few years, but that will diminish as the Internet rebalances communications between vendors and customers (see ProjectVRM). Until that time, yes, advertising can provide some funding. For example, there will be ways for people to redirect their website’s ad revenue as patronage (see JuiceTorrent).

Comment

drew Roberts said 5957 days ago :

“Who’s going to facilitate my audience funding me?

I and a few others (see Peers) are working on online facilities to enable direct payment from audience to artist.”

Please be sure to take into account the “collection” of monies on behalf of a “group” but the disbursement to them as “individuals”.

If this is not clear, please let me know for further discussions.

Also, I am not sure the copies market is completely gone and especially not in the physical realm. (Physically rendered copies of digitally created artworks.)

all the best,

drew
—
zotz.kompoz.com

Comment #000226 at 2008-10-06 16:05 by drew Roberts

Crosbie Fitch said 5956 days ago :

Yes, I do recognise the issue of disbursement, i.e. for artworks with multiple contributors and varying degrees of contribution.

The Contingency Market has been designed to cater for ‘agencies’ (‘agents’ that comprise other ‘agents’, each having a number of shares in any transaction). Other systems may adopt other approaches, e.g. enabling works to enumerate and apportion their contributors.

However, the benefit of a disbursement facility to collectives has to be counterbalanced with the additional administrative costs of supporting collectives (conciliation and arbitration). This is why I suspect disbursement may tend to be identified as a ‘future enhancement’ in most systems.

Of course, when revenue gets to very high levels then disbursement is essential. However, by that point it may be wise for the collective to form a single financial entity, e.g. to incorporate. Otherwise, on the smaller scale, it may tend to be the case that for digital art and other intangible public works a collective has to trust every member as equally able to represent and respect every other member’s interests, i.e. they should pick one member as treasurer.

Also worthy of note is the added complexity of enabling the public to confidently identify each artist, and the authoritative representative of any collective. To some degree this is a task for the artist’s audience, to take care in identifying a work’s producer and patronising the bona fide artist(s), e.g. finding the official websites.

As for the market for material copies, yes, this remains, albeit at prices no longer inflated by monopoly. It can still cost money to buy a retail copy of a GNU/Linux distro – despite being freely copyable. There will always be a market for copies that cannot easily be produced by the audience, e.g. vinyl pressings.

Comment #000227 at 2008-10-06 17:38 by Crosbie Fitch

drew Roberts said 5953 days ago :

“Otherwise, on the smaller scale, it may tend to be the case that for digital art and other intangible public works a collective has to trust every member as equally able to represent and respect every other member’s interests, i.e. they should pick one member as treasurer.”

This may be all well and good when you are a member of one or a few long lasting collectives, but if you take a look at how something like kompoz works, this is not likely to work well. This needs to be solved as a part of the system and be “easy.”

“As for the market for material copies, yes, this remains, albeit at prices no longer inflated by monopoly”

Yes, that is true and is a good thing in my book. However, the prices may still be inflated by “celebrity” and related factors. Check the market for autographed sporting memorabilia for example.

drew

Comment #000228 at 2008-10-09 18:00 by drew Roberts

Crosbie Fitch said 5953 days ago :

If systems such as Kompoz don’t mind taking on the human costs of administering collectives, then they can still utilise the ‘N-shares’ disbursement feature within the ContingencyMarket (if that is sufficient), and make things appear to be “easy”.

The technical aspects of such disbursement are relatively trivial. It’s all the other aspects that are tricky. :)

Of course, if you try really hard, things can still get tricky technically too, e.g. a system that needs to permit continuous recording of wide and varied work inputs throughout a project’s lifetime (across version releases), from individuals and constituent products from other collectives. And no doubt to enable certain kinds of work to have a higher value than other work, and for these values to be adjusted at any time, given collective consultation and approval.

It sounds to me as though you should check out P2PMoney who have been exploring the issue of disbursement and revenue sharing in general.

Comment #000229 at 2008-10-09 19:37 by Crosbie Fitch

Generalism vs Specificity · Tuesday September 16, 2008 by Crosbie Fitch

In his second article concerning the inexorable transformation of American newspapers Vin Crosbie is right on the ball with the necessary change in focus from generalism to specificity that must occur when you no can longer produce one newspaper for a single mass market, a single virtual audience, but have to recognise that there is a vastness of audiences, each with a far more specialised set of interests.

This applies to most forms of art, not just newsprint, e.g. movies. The likes of Disney are focussed on producing a single product with most effort spent on maximising its mass appeal – simply because they have been brainwashed over the years to think this is the way it has to be (given the physical limitations of their reproduction and distribution system). Newspapers also attempt to include something for all the family, something to interest everyone.

However, I think the issue of charging isn’t simply due to the Web providing vast amounts of more specific information (without charge), making general newsprint less valuable in comparison. The value of news to those reading it remains unchanged. What the web demonstrates is that the inability to charge arises from an inability to control supply and distribution, not any change in value. It also demonstrates that this situation is the natural one, and that newspapers enjoyed an unnatural one – thanks entirely to copyright.

Without copyright, newspapers couldn’t charge for their control over supply. They would have to operate on the basis of voluntary subscriptions from readers and/or payments from advertisers.

On the web, copyright is revealed to be wholly inappropriate and unviable as a means of preserving a publisher’s monopolistic control over the use of their news – as Associated Press has recently discovered (see techdirt.com and ravinglunacy.org).

Much of this misadventure in applying anachronistic printing privileges stems from use of paper analogues and metaphors to describe the web, which leads publishers to presume it can be subject to the same anachronistic laws governing copying and thus the same business models. If only people could see past the metaphors they’d realise that underlying the web is an instantaneous diffusion mechanism dedicated to distribution and reproduction of digital information according to interest – with no notion of man-made laws, only the natural laws of information.

So far, only charging (charged reading or subscriptions) and advertising have been explored as a means of funding online news. Charging does not work, and advertising is degrading. Very few are as yet exploring voluntary payment or subscriptions. I’m one of these latter few who believe revenue models for digital productions have to be rethought from the ground up without any notion of copyright or other ability to control use or redistribution of published works.

Comment

The Madness of Copyright · Wednesday August 27, 2008 by Crosbie Fitch

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

I respond:

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

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

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

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

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

Ray then replies:

Dear crosbie,

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

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

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

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

I then answer the aspersion of radicalism:

Ray,

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

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

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

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

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

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

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

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

Comment

Ray Beckerman said 5996 days ago :

No offense intended, crosbie. The RIAA lawyers are constantly seeking to disparage me and frequently cite my blog to the Judges.

I have nothing against ‘radicalism’ or ‘extremism’ in defense of what is right, nor against ‘conservatism’, for that matter, which seeks to preserve what is right.

I am for right and against wrong. And I am not ‘moderate’ about standing up for what I believe in.

If you really believe all copyright law (as opposed to abuse of copyright law, or as opposed to poorly drafted copyright law), is wrong, then go ahead and make your case for that, although I’ve yet to see such a case made by anybody.

I’m in the present struggle not because of passionate feelings about copyright law, but because I am a strong believer in the rule of law itself, and because I detest bullies, extortionists, and collusionists.

I am a practicing lawyer; these are real cases with real people suffering in them; and if the law as it exists were actually being applied, these people would not be suffering and the lawsuits would not exist. And so my mission is to see the law applied.

If it is your mission to abolish the law, that is your case to make, but it is not mine, and not one that will help any living breathing person I know, since it would never happen in our lifetimes.

And I feel no confidence at all that if it were to happen, it would be such a good thing to enable anyone to just rip off the creations of anyone else, without compensation, and without even acknowledgment.

Comment #000221 at 2008-08-27 20:15 by Ray Beckerman

Crosbie Fitch said 5991 days ago :

Ray, it is not my mission to abolish copyright, however its abolition does appear to be an inevitability – given the current alternative of prosecuting the people for enjoying their cultural liberty.

The fact is, the populace at large are engaged in wholesale copyright infringement.

If copyright’s privileging of publishers is to supersede natural law then the likes of RIAA and MPAA are indeed legally entitled to prosecute the people for enjoying liberties that their government had long ago ceded to create copyright. Consequently, if you support copyright law then you should not attempt to frustrate or thwart the RIAA/MPAA in their pursuit of its enforcement.

Either people should be free to share and build upon published works, or they should surrender this liberty to permit the monopoly of copyright to remain viable, and thus permit publishers’ traditional business models to remain viable.

In other words, either copyright is an unethical mercantile privilege, or the people are simply incorrigible pirates.

I can only conclude that copyright, being in opposition to natural law (that people are naturally free to copy, perform, exchange, and build upon published works), and consequently being bad law, is socially harmful, counter-productive, and is ultimately detrimental to innovation and cultural enrichment.

Law is supposed to arise from the people. It is not supposed to represent the interests of publishing corporations in facilitating their commerce with the people.

Whilst I clearly see no benefit in protecting anachronistic monopolies at the expense of a persecuted public, I think we both agree that producers of intellectual works should have their exclusive rights secured, and that owners of such intellectual property should have remedies against theft. Moreover, without the monopoly of copyright, producers of intellectual works should at last be able to exchange their labour in a free and fair market. As for acknowledgement, the respectful crediting of artists whose work one has built upon should be even more forthcoming once the threat of litigation for doing so has been removed. Even with less incentive to falsely claim originality, any wilful misattribution that does occur should be recognised as a misdemeanour.

Rather than subjugate the people to mercantile privilege, let’s improve the law such that it better expresses the natural law of the people.

Comment #000222 at 2008-09-02 08:48 by Crosbie Fitch

Stephan Kinsella said 5990 days ago :

Beckerman: “If you really believe all copyright law (as opposed to abuse of copyright law, or as opposed to poorly drafted copyright law), is wrong, then go ahead and make your case for that, although I’ve yet to see such a case made by anybody.”

Two comments. First, the burden of proof is on someone advocating a bureaucratic, legislated, artificial-rights system that facially infringes property rights. Second, of course principled cases have been made, e.g. by me (I’m a practicing IP attorney), in my Against Intellectual Property.

Comment #000223 at 2008-09-03 02:28 by Stephan Kinsella

Streaming/Downloading Sophistry/Duality · Wednesday August 20, 2008 by Crosbie Fitch

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.

Comment

Ian Betteridge said 6003 days ago :

But Crosbie, producing something which ensures that a product will no longer exist is, in the real world, not improving it. It’s breaking it.

Adults take responsibility for their actions. The scripters do not.

Comment #000217 at 2008-08-21 08:08 by Ian Betteridge

Crosbie Fitch said 6003 days ago :

If you gave one of your neighbour’s kids an MP3 player and later found that they’d been mugged by the bullies at school for it, I can tell you’d blame yourself for being so negligent and irresponsible in causing them such harm.

Privileged corporate bullies may be such an inescapable part of the commercial infrastructure in your world that their bullying is always the fault of the victim (or those that bring the victim to the bully’s attention), but in my world, I believe the bully should be the one to take responsibility for their actions, and for the privileges that so iniquitously empower them to be called into question.

Comment #000218 at 2008-08-21 08:50 by Crosbie Fitch

Ian Betteridge said 6003 days ago :

If I gave my neighbour’s kid an MP3 player, nothing in that act would enable the mugging. If I gave the muggers a knife, it would. See the difference?

Comment #000219 at 2008-08-21 09:11 by Ian Betteridge

Xanthir, FCD said 6003 days ago :

Ian: Correct, it certainly would make a difference. Could you now explain why you are implying that the coders produced a knife rather than an MP3 player, and that they then handed this knife to the RIAA?

The knife the RIAA is holding is copyright law, and it was handed to them by Congress (after excessive begging by the RIAA’s lobbyists). Crosbie is correct in that the coders simply produced something which made Muxtape a more attractive target. They did not produce the weapon used in the assault.

Comment #000220 at 2008-08-21 13:53 by Xanthir, FCD

Mythologising Copyright · Monday August 11, 2008 by Crosbie Fitch

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).

Comment

What? said 6012 days ago :

Your logic is seriously flawed and makes assumptions about the intents of the framers that history, letters, etc. don’t support. And most certainly the framers were thinking about monopolies, secured for a limited time, when they drafted that clause. To claim otherwise is to fly in the face of all documentation and letters to the contrary and to deny that the language of the constitution means what it says. I’ve seen similar twisted reasoning in fundamentalists religions that use sacred texts to justify whatever they feel like believing.

Comment #000209 at 2008-08-11 23:17 by What?

Crosbie Fitch said 6012 days ago :

It is clear that those who would enjoy and support the monopolies that were granted a mere three years after the Constitution, as well as their descendant publishing cartels over two centuries later, could only be eager to establish the ‘intended’ interpretation of the ‘power to secure authors’ exclusive rights’ as the ‘power to grant monopolies to publishers’.

I don’t doubt that a more correct understanding of what was meant by ‘exclusive rights’ (by those who knew that rights were invested in man by nature rather than granted by governments) is not going to go down at all well with those monopolists who’d like it believed they have constitutional sanction, rather than a mere statutory privilege granted a few years later.

It is of course academic. Nothing I say is going to affect the course of copyright. Reality is revealing copyright to be both unnatural and unviable. I’m simply observing that those natural rights philosophers who had a hand in draughting the Constitution understood the difference between (natural) exclusive rights and (unnatural) monopolies. Hence why such terms and phrases as ‘copyright’, ‘monopoly’, ‘patent’, and ‘may grant to authors’ are meticulously absent.

Those who draughted the US Copyright legislation a few year’s later however, taking liberty from a constitution now at arm’s length, felt then emboldened to create a reproduction monopoly over published works, call it an exclusive right, and then being a ‘right’ briefly held by the author (before they supernaturally transferred it to a publisher), fraudulently demonstrate this monopoly was a constitutionally sanctioned exclusive right of the author.

So, you can’t have it both ways. Either:
A) it is only recently that we’ve realised that copyright is a monopoly, and the poor Framers and copyright legislators committed a grievous error in thinking it was a natural right,
OR
B) it has always been known that copyright (as granted by Statute of Anne) is a monopoly and the Framers were meticulous in restricting the Constitution to the protection of natural rights and the rigorous exclusion of anything from it that might be interpreted to permit the granting of unnatural monopolies.

If we’re weighing letters and documentation, I think you’ll find a wealth of it that expounds the ills of monopolies, especially when enjoyed by printers. The malaise of monopoly was painfully clear to all at the end of the 18th century – on both sides of the Atlantic. Unfortunately, monopolies are so lucrative to those who enjoy them, one can but marvel at the ingenuity and cunning of those who would manoeuvre them back into the legislation – and today maintain and extend them there.

Comment #000210 at 2008-08-12 09:24 by Crosbie Fitch

Willton said 6008 days ago :

The reason the words “patent,” “copyright,” and “monopoly” were not used was because the language of Art. I Section 8 Clause 8 is much broader than those narrowly-defined words, and thus encompases the concept of patent and copyright. The Constitution is designed to be read broadly, not narrowly.

Plus, to say that the Framers were thinking one thing when drafting the Constitution and then thinking another when drafting the Copyright and Patent Acts is illogical. It makes perfect sense that the Framers of the Constitution would then draft legislation consistent with the meaning of the Constitution 3 years later. The language of the Acts is supported by the language of the Constitution. You have no evidence that says otherwise: all you have is your ill-conceived notions on how the world should be.

Crosbie, you’re a lunatic. You have no Constitutional authority to back such an absurd opinion. You interpret the Constitution to mean whatever you think it means, not what the Framers intended it to mean. Follow the plain language of the Constitution; don’t make up meanings for words and phrases that don’t have any legal or normative support.

Comment #000211 at 2008-08-15 17:06 by Willton

Crosbie Fitch said 6008 days ago :

It seems that we are getting to the stage where we should simply agree to disagree.

You stand by the received understanding of the last two centuries, by the majority of sane authorities, that the Framers intended ‘power to secure an author’s exclusive rights’ to mean “power to secure an author’s exclusive rights, and to grant them reproduction monopolies or other mercantile privileges that may subsequently be termed ‘exclusive rights’” or alternatively to mean “power to secure an author’s exclusive rights, where ‘exclusive rights’ encompasses their natural exclusive rights as well as any reproduction monopolies or other mercantile privileges that may later be granted to them”.

I on the other hand, argue logically, rationally and coherently that ‘power to secure exclusive rights’ means “power to secure exclusive rights, where ‘exclusive rights’ needs no further explanation because it describes an author’s self-evident and natural exclusive rights to their writings” and is thus not a warrant for the state to grant reproduction monopolies and other mercantile privileges to persuade authors to release their writings from the protection of their exclusive rights (making them public). Though such a warrant was evidently assumed when a grant of a reproduction monopoly over published works (aka copyright) was enacted a mere three years later.

I invite you to post your logical, rational and coherent counter argument to mine on your own blog – arguing why copyright is constitutionally sanctioned.

I recognise that to many people it would appear insane to question constitutional sanction for copyright, but fortunately, neither insanity nor lunacy actually impinges upon the validity of such an argument.

As to authority, this also has no bearing upon an argument’s validity, but only really whether one could expect to be taken seriously. This is why I’m just blogging about this rather than presenting an academic paper at a conference.

Whilst I might hope to persuade you of my sanity, I am clearly unable to do much about my authority. Neither I nor anyone else today is a contemporary of the Framers, but in case it helps, I did live for many years in the same town as Thomas Paine and drank in the same pub as him. You know Thomas Paine? That influential chap who was a contemporary and well known to the Framers, who wrote “The Rights of Man”? No doubt the obvious interpretation of such a title should lead one to conclude that he wrote about the reproduction monopolies and other mercantile privileges that governments should have the power to grant to men such as him.

Paine emphasizes that rights cannot be granted by any charter because this would legally imply they can also be revoked and under such circumstances they would be reduced to privileges.

Paine writes, “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. ”

Comment #000212 at 2008-08-16 10:03 by Crosbie Fitch

Willton said 6005 days ago :

Last I checked, Thomas Paine did not have a hand in writing the Constitution.

Comment #000213 at 2008-08-19 12:59 by Willton

Crosbie Fitch said 6005 days ago :

Nevertheless, Thomas Paine was one of The Founding Fathers of the US Constitution who was, as I indicated, a highly influential contemporary of others such as Benjamin Franklin, Thomas Jefferson and James Madison – and other Framers.

Paine had a hand in writing the constitution even if his hand did not literally grasp the pen.

See Wikipedia on Jefferson: Jefferson believed that each individual has “certain inalienable rights.” That is, these rights exist with or without government; man cannot create, take, or give them away. It is the right of “liberty” on which Jefferson is most notable for expounding. He defines it by saying “rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law,’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”³⁴ Hence, for Jefferson, though government cannot create a right to liberty, it can indeed violate it. And the limit of an individual’s rightful liberty is not what law says it is but is simply a matter of stopping short of prohibiting other individuals from having the same liberty. A proper government, for Jefferson, is one that not only prohibits individuals in society from infringing on the liberty of other individuals, but also restrains itself from diminishing individual liberty.

The Framers had a clear understanding of the difference between exclusive rights inalienable to individuals and mercantile privileges of monopoly (over reproduction, utilisation, performance, or anything else) that could be granted as compensation, rewards, or favours (and would be).

Comment #000214 at 2008-08-19 14:09 by Crosbie Fitch

Crosbie Fitch said 6005 days ago :

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.

Comment #000215 at 2008-08-19 14:53 by Crosbie Fitch

Willing Impartiality, William Patry Disengages · Wednesday August 06, 2008 by Crosbie Fitch

Why has Professor William Patry discontinued his blog?

One possibility (as he alludes to) is an inability to escape the implication that he expresses Google’s views on copyright, or at least biases his views in Google’s favour.

Therefore, I deduce that William has said to himself something like this: “Sorry me, I know I’ve done everything possible to dissociate my blog and opinions from Google’s interests, but this still isn’t preventing significant opinion from understanding otherwise, and so I must ask myself to discontinue my blog”.

Even this could only be a problem if there were powerful maximalist forces tempted to insinuate that Patry’s blog evinced bias from being in Google’s employ, and irrespective of the truth, the plausibility of that being a popular perception and association couldn’t help but implicate bias in Patry’s legal opinions, and thus affect his practice for which a perception of impartiality is a prerequisite.

I suppose that if he’s also seen to entertain copyright abolitionists this exacerbates any perception of bias, whether he considers abolitionists crazy or not.

I’d suggest that whilst it may be professionally critical to evince impartiality (beyond its mere achievement), if this is at the cost of understanding it cannot help but compromise one’s integrity. You cannot improve your judgement of the world (since law evolves from the people), or anyone else’s judgement, if you retreat from engagement with it, the people that comprise it.

So, what would I say? “Come on Bill, get your blog back up, and start publishing my comments again!” And inevitably, some people will suspect I’m biased in this. ;-)

Comment

Kevin Kelly Understands Payment Volition · Saturday August 02, 2008 by Crosbie Fitch

I’m glad to see that Kevin Kelly also recognises that paying for music is what people want to do, but have no means of doing.

All people can do is to pay publishers for copies, and be prosecuted if they make their own.

So, let’s make a way for people to pay musicians for music – directly.

Anyone who adds value, can then be paid for the value they add.

If making a copy adds no value, why should the maker of copies expect any payment?

Comment

It’s good to see Mike Linksvayer query what precisely is protected by copyright, and more importantly, from what and by whom.

Copyright should be understood as a transferable privilege, intended for printers, which accompanies an original intellectual work from the moment of its expression, that reserves the power to exclude others from reproducing the work to the holder of the privilege.

In other words copyright suspends this power (or natural right to copy) from the legitimate owners of intellectual works (and copies thereof) in order to grant it instead to a beneficiary preferred by the state. Copyright thus represents the state’s recognition of the copyright holder’s privilege over the public.

Copyright doesn’t protect an intellectual work from being copied however (though publishing cartels are predictably attempting to transfer such responsibility to the state). It remains up to the copyright holder to prosecute infringers and take action necessary to ‘protect’ their work from being copied by those who would copy it. Copyright simply means the state will recognise that the copyright holder should have the power to exclude others from reproducing their work. So copyright doesn’t really protect anything.

At most copyright could be said to enable a copyright holder to protect their unnatural reproduction monopoly from infringement (by the unprivileged public’s natural right to make copies). Even so, copyright only enables protection, it still doesn’t actually protect. And whatever that protection is from, it is ‘from being copied’, and by the purchasers of copies aka ‘the public’.

Publishers are thus supposedly encouraged to deliver far more of their artists’ intellectual works to the public if it is on the understanding that the public may be sued should they copy or build upon the copies they purchase, although they may at least enjoy, utilise, and learn from them.

Given reproduction and distribution are now effectively without additional cost, the age of the publisher is over of course, and it is now a matter of encouraging artists to deliver their work to the public directly, without encumbrance, and to enable the public to provide that encouragement to artists in the form of enthusiastic payment rather than state enforced suspension of their liberty.

Clearer Understanding

I believe a clearer understanding of powers and protections is obtained by seeing things in terms of natural rights vs unnatural privileges.

Natural rights are self-evident, inalienable, to be constitutionally recognised and protected by the state.

Unnatural privileges are enacted as commercial rewards or favours by the state in misguided pursuit of societal benefits, as they generally require suspending the recognition of individuals’ natural rights in favour of the invariably corporate party to be privileged with them (supposedly for a greater benefit to the party whose right was suspended).

Thus one’s natural right to liberty (to freely express oneself and to copy and build upon published works – as long as one doesn’t compromise truth, privacy, or life) is compromised to reserve the act of copying published intellectual works to the privileged party, i.e. the copyright holder.

Even worse is that one’s natural right to privacy (to exclude all, especially the state, from scrutiny, control, or seizure of materials from one’s private domain except where warranted in the protection of life or arbitration of privacy) is also compromised to privilege the copyright holder. Copyright makes it illegal even to make private copies of your purchased CDs, or to produce compilations or remixes.

Thus the fundamental difference between rights and privileges, is that nature provides rights, whereas the state provides privileges. Both involve power. The individual has the natural power to protect their life and their privacy. The community of individuals has the natural power to protect their consensus of the truth (against impairment by individual members). Liberty is the power of action that remains to each individual. The state is created to protect all, and not, as some believe, to grant unnatural power to provide favours or incentives.

Given that inherent to the right to life is that all lives are considered equal, no living individual may naturally dictate what another may do or not do within their liberty. If this is to be unnaturally obtained, then they must be granted a privilege to have this power over their fellows (such power provided by the state). Thus copyright grants those so privileged the power to dictate whether others may copy or build upon their original works, and patent grants those so privileged the power to dictate whether others may utilise their registered novel designs.

It should be noted that the US constitution does not sanction the granting of such privileges – if one understands that it only recognises natural rights, including privacy, the natural exclusive right authors and inventors can be recognised to have (which logically ends upon publication and the self-evident termination of their natural exclusive right). The constitution says the state shall have the power to secure its citizens’ self-evident, natural, exclusive rights, not to grant them unnatural privileges (however much they may enjoy them – at others’ expense).

Copyright may coincidentally help secure an author’s exclusive right to their writings, but it does not engage the state in the protection of that right, it instead creates an exclusive reproduction privilege – not only granted to private, naturally exclusive works, but also to published, naturally non-exclusive works.

Patent, in the case of ‘first-to-file’, doesn’t even protect an inventor’s natural exclusive rights to their designs at all, but only a time limited, exclusive utilisation privilege for ‘patented’ publicly registered designs. There’s no recognition of any violation of an inventor’s natural exclusive rights to their designs if through espionage these have been implemented and utilised by others whilst they should still remain naturally exclusive to the inventor, i.e. before they have been published or patented.

There may well be arguments in favour of creating the privileges of copyright and patent, but at least it should be recognised that privileges have been created. The exclusive rights that should have been constitutionally recognised and secured have not been, or have been only partially (and then coincidentally).

In conclusion, the privileges of copyright and patent are unconstitutional artifices of dubious merit at best, and unethical anachronisms reminiscent of monarchical excess at worst.

I believe it would be best if the privileges were abolished and the natural exclusive rights properly recognised and secured.

Comment

Darren said 6032 days ago :

Copyright protects a creator’s right to reap the rewards for his or her own work. When applied to creations where the value created isn’t material (like books, music, etc.), that right requires the ability to control the commercial reproduction of their work.

Comment #000202 at 2008-07-22 19:23 by Darren

Crosbie Fitch said 6032 days ago :

I’m interested in this ‘right of a creator to reap the rewards for their work’. Such a right may sound appealing to some, but where does it come from?

From the natural rights to privacy, truth, and liberty, I can see that one can derive a right to free exchange – of labour or products. However, I cannot see how one can derive a right to forcibly collect usage fees from people who have enjoyed, exchanged, or reproduced art that an artist has produced and published ‘on approval’ as it were. I can only see such things as deriving from state granted privileges.

There are many who propose an Internet tax as a means to replace copyright, but neither system derives from any right of artists, but the commercial interests of publishers, and the interest of the state in exchanging its citizens’ liberty (freedom to copy) or labour (tax) to retain control of those publishers.

A tax has a chance, but I suspect the state will gradually realise there’s nothing to be gained by funding and controlling traditional publishers given they are rapidly diminishing in significance. The state may start wishing to control the Internet, but that’s a bigger fish to catch.

Comment #000204 at 2008-07-23 07:16 by Crosbie Fitch

Matijs van Zuijlen said 6028 days ago :

In the US, copyright is actually perfectly constitutional (http://en.wikipedia.org/wiki/United_States_copyright_law).

It’s true that it is recognised as a priviledge, not a right.

In dutch law, as far as i understand it, it seems copyright is considered a natural right.

In neither case however, copyright is a right or priviledge of the publisher, always of the author.

(Your comment form text box is tiny!)

Comment #000205 at 2008-07-27 01:52 by Matijs van Zuijlen

Crosbie Fitch said 6027 days ago :

It is nevertheless misguided to believe that copyright is an author’s privilege. Copyright is a privilege over an original work intended for exploitation by publishers – and hence a publisher’s privilege. Moreover it is only a commercial privilege – it provides no protection. It does not protect any interest an author may have in controlling the use, performance and reproduction of their work. If that was its purpose then it wouldn’t have been transferable, and the state would have protected the author’s ‘right’ to control the use of their work on the author’s behalf, i.e. copyright would have been policed and any violation of the author’s proprietary ‘rights’ would have been considered a criminal offence to be prosecuted by the state.

Of course, copyright being associated with a work, is initially in the possession of the author, but this doesn’t make copyright an author’s privilege. It is only that the author is the initial holder of a publisher’s privilege. This is because copyright is impotent in the hands of all but the most plutocratic of authors. It has always been expected that commercial publishers would assert their privileges of copyright, with the author only involved in selecting the publisher who would enjoy a privilege to their work (often in exchange for consideration or royalty).

The self-publishing author is a very recent entity that copyright legislation did not envisage. And such legislation also did not envisage a future in which readers would be the one’s who’d freely distribute and reproduce a self-publishing author’s works. Both parties without the means to assert or defend any reproduction or performance privileges, as unethical, ineffective, and redundant as we should recognise they are today.

As you point out, how copyright is recognised varies with jurisdiction. I focus on the UK and US. Jurisdictions that elevate copyright into a natural right commit a greater error and affront to nature, than granting copyright holders a privilege over others.

Apologies for the small comment form, but it is small to encourage commenters to compose larger comments offline, to then paste into the form – in case the form submission fails.

Comment #000206 at 2008-07-28 13:31 by Crosbie Fitch

Encouraging Learning, Promoting Progress

The Jabberwock, the Bandersnatch, and the Recording Industry · Sunday September 28, 2008 by Crosbie Fitch

Creation Confers Ownership · Wednesday September 24, 2008 by Crosbie Fitch

Artist and Audience Alone · Thursday September 18, 2008 by Crosbie Fitch

Questions?

Who’s going to facilitate my audience funding me?

What are these ‘discoveral agencies’ you mention?

Can I afford a commercial file-sharing service?

I thought everything in the future was going to be funded by advertising?

Generalism vs Specificity · Tuesday September 16, 2008 by Crosbie Fitch

The Madness of Copyright · Wednesday August 27, 2008 by Crosbie Fitch

Stephan Kinsella said 5990 days ago :

Streaming/Downloading Sophistry/Duality · Wednesday August 20, 2008 by Crosbie Fitch

Xanthir, FCD said 6003 days ago :

Mythologising Copyright · Monday August 11, 2008 by Crosbie Fitch

What? said 6012 days ago :

Willton said 6008 days ago :

Willton said 6005 days ago :

Willing Impartiality, William Patry Disengages · Wednesday August 06, 2008 by Crosbie Fitch

Kevin Kelly Understands Payment Volition · Saturday August 02, 2008 by Crosbie Fitch

Copyright Protects - What? · Tuesday July 22, 2008 by Crosbie Fitch

Clearer Understanding

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Paragons

Protagonists

Proof

Papers

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