From Creative Commons’ weblog:
The Netherlands is the first country to bring such a collaboration between a music copyright organization and Creative Commons, a move applauded by Lawrence Lessig, the founder and chairman of Creative Commons International, as “the first step towards more freedom of choice in the field of exploiting music works in the digital world.”

“Freedom of choice”?

Gosh. How laudable.

“Ambassadeur, wiz zese Ferrero Rocher you are really spoiling us!”

Thanks to CC, musicians can now have a free choice in deciding whether to prosecute their fans or let them share their music without such persecution. And so, at last, collection societies can now more easily recognise that some of their members may be a bit limp in the hang ‘em and flog ‘em department.

You see how subtly the sly sinuation slips in? That the manumission of freedom is rightfully given to the copyright holder – not their suffering fans who remain, just as before, shackled not to share and imprisoned if they do – unless of course, the musician they so adore deigns to grant them clemency, if the criminals they catch have made no attempt to profit from their copying.

Remember kids, not all freedom is good. It’s great from the slave owner’s perspective that they get the freedom of choice to decide whether to capitally punish escaped slaves, just let them off with a less severe warning, or even to set them free to reduce overheads during times of drought.

So, why the heck should anyone rejoice that the choice to prosecute is no longer in the hands of the collection society, but the musician?

Sank you professeur Lessig, for letting ze kind musician have ze freedom of choice to prosecute us instead of zeir evil record label. You are really spoiling us.

Let’s rejoice when no-one has the freedom to, let alone freedom of choice to, prosecute fans for sharing a musician’s published works.

So, what, if anything, has actually changed?

Yesterday:

Musicians can publish their music fully copyrighted and receive revenue via collection societies. Their fans share their music with impunity, but insignificant risk of jail terms.

Today:

Musicians can publish their music CC-NC and receive revenue via collection societies. Their fans share their music with impunity, but no risk of jail terms.

I don’t know who is most overjoyed by the news.

Here is my estimated breakdown of enjoyment:

1. Creative Commons 60%
2. Collection societies 30%
3. Musicians 9%
4. Those sharing the music and risking jail terms 1%
5. Those who like the music 0%
6. Those paying the collected fees 0%

As for economic impact, well, 0% really. Why on earth is it going to change?

• Musicians who still believe in copyright, but don’t really want to sue their fans, will continue as before.
• Musicians who wish their music to be promoted far and wide without let or hindrance will continue to do everything possible to escape the predations of record labels and collection societies.

Meanwhile, the board at Buma/Stemra has been persuaded that there are many musicians who continue to believe that bars and other commercial establishments should be prosecuted for promoting their work without paying for the privilege, even if they no longer think their fans should be.

Creative Commons continue to find mugs who still think copyright can be made to work if only it’s kind to kids, but cruel to commerce.

There is of course, no compromise. Either you believe in monopolies or you don’t.

The intermediate solution?

Nullification via licence, e.g. copyleft.

The inescapable conclusion?

ABOLITION.

A Better Allegory

Imagine in the movie Aliens, the adversary is actually publishers’ lucrative copyright legislation that infests human culture, admired by lone lawyers with dollars in their eyes who’d harness it for their own ends:

Ripley: I say we take off and nuke the entire site from orbit. It’s the only way to be sure.
Hudson: Fuckin’ A…
Burke: Ho-ho-hold on, hold on one second. This installation has a substantial dollar value attached to it.
Ripley: They can BILL me.

I, naturally, identify with Ripley, and suggest that Burke can be ably played by Lessig, with every other draconian publisher and their lawyers, the aliens. Let us not forget the innocent families already wiped out, or cocooned and still awaiting digestion by predatory litigation.

Auditions for Hudson’s part are invited from members of this audience.

William Stepp brings our attention to a typical pro-copyright treatise, “The Misunderstood Idea of Copyright” by Karl-Erik Tallmo.

While it seems that Karl-Erik understands copyright quite well, he offers no argument in favour of it except the traditional commercial benefit to authors/publishers, albeit at the expense of public liberty (and persecution by corporations).

He does recognise the goodness of moral rights and the right to privacy, along with the inescapable logic that the fruits of an author’s intellect are their intellectual property. However, these things lend no support to copyright.

What still remains unexplained is the peculiar illogic that one should continue to own one’s property even after one has sold it.

Justifying slavery by rote arguments of its commercial benefits to slave owners may well be unassailable on economic grounds (even if so assailable upon hindsight). However, what we have today, to extend the allegory, is a situation where all slaves have become expert escape artists to rival Houdini. Whilst it’s possible for a slave owner to visit the nearest towns to see if they can find any of their slaves still in the vicinity and obtain the services of the law to assist them reclaim their property, even the stubborn should soon see that despite the economic advantages previously enjoyed, the modern reality can no longer sustain them.

It seems that in the case of slavery, the ethical argument against it surpassed the economic argument in favour. As for copyright, ethical arguments against it are not new, but they have always been impotent against commercial priorities.

It is a mistake to believe that copyright’s contemporary problems and the appearance of arguments against it arise from its misunderstanding.

What we have today is not so much a misunderstanding of copyright, but a misapplication. It could, perhaps a decade or so ago, be effectively applied to a thousand commercial publishers with real commercial benefits to the monopoly holders (notwithstanding the probably greater hidden costs), however it can no longer be effectively applied to a billion online publishers.

It doesn’t matter how well you understand copyright, it is unethical, ineffective, uneconomic, irrelevant, and redundant.

What matters is how well you understand reality.

For the benefit of new readers: while this site evangelises the abolition of copyright, it does promote IP naturalism, i.e. the recognition of intellectual property as a natural right. So, it remains important that the law is coherent when it comes to distinguishing between sale of IP and its rental (or other contracted use).

Completely independent from the issue of the monopoly that is copyright, there is the issue of what happens when IP is retailed.

Surprisingly, whilst one would expect that when a copy was retailed, the copy was sold and that the purchaser could do anything with their copy not proscribed by copyright, there are some who believe that the copyright holder can stipulate in the licence, terms that additionally prevent sale of copies or constrain their use.

Now it is indeed quite possible for a licence to prohibit sale, but only by the licensee. Moreover, a licensee can only become a licensee voluntarily. They can’t become one simply by coming into possession of a copy (even by purchase or gift).

So, if you walk into a shop and purchase a CD, any licence attached to it can be ignored unless you would like to benefit from it.

It is possible that retailers may willingly volunteer to become licensees of the copyrighted works that they would sell copies of, and consequently become unable to sell copies if the licences so stipulate. However, this doesn’t permit the retailers to misrepresent exchange of copies for money as sales instead of rental.

Let us consider the situation where a retailer has not become a licensee or otherwise contracted themselves out of the ability to retail authorised copies of copyrighted works. Let’s use audio CDs as an example.

The Deal

There are only two possible deals the retailer can present to their customers:

1. Purchase/receipt of what is clearly a CD. _{Somewhere inside the CD case may be a little piece of paper on which is written “Special offer – you can obtain a few more exciting privileges if you sign and return the attached contract that signifies your consent to accept certain conditions and restrictions in exchange”}
2. Purchase/receipt of what is clearly a voucher/contract. _{“This voucher, when countersigned by you to indicate acceptance of its terms, entitles you to the indefinite use of a CD that we will loan to you.”}

Sometimes 2 is distorted into something very similar to 1. A disposable CD in a brown envelope is affixed to the voucher, e.g. _{“Not to be opened until voucher is signed”}. It then becomes a conventional CD case and a little piece of paper on which is written _{“The CD to which this voucher is attached must be returned unless you sign this voucher agreeing to terms and conditions that restrict your use of the CD – in all cases the CD remains the property of XYZ Corp.”}

The critical issue is this: is the sale of a voucher being misrepresented as the sale of a CD? If so, the voucher must be void, and it is a sale of a CD.

Better still, legitimate possession of a CD whether provided on indefinite loan or on sale, cannot bind the recipient.

The Licence

Unfortunately, some people believe that even when a copy appears to be retailed, its licence can abrogate the sale the customer might assume had occurred. This is, of course, complete codswallop.

• Firstly, the licence can only apply to purchasers or other owners of the copy. It cannot reach out like some spectral robber baron to coerce passers by as subject to its constraints (even if it appears to bestow liberties in exchange).

• Secondly, the licence cannot demonstrate consent by its victim to be so bound by specifying that should the victim perform an action they are inclined and free to do anyway (even if only authorised by licence) they are therefore signifying acceptance of the licence to mutate into an agreed contract.

• Thirdly, a licence is a ‘licence’. For it to start off as a contract it would have to term itself a ‘contract’ (deposit-paid), and the accompanying contingent good clearly marked as such (subject to contract).

• Fourthly, a licence is a copyright holder’s moderation of the privileges they’ve received via copyright. It does not empower the copyright holder to create their own legislation governing use and sale of copies of their work.

So, the moment before a licence can have any significance, we must have an owner of the copy (to which the licence is affixed). The owner of the copy can ignore the licence (possibly, even in ignorance, benefitting from liberties unilaterally provided by the licence), or they can choose to observe the terms and conditions of the licence as a potential contract in exchange for benefits, or they can consummate the licence’s mutation into a contract by explicit and special agreement (performing an action that could have no other purpose than to express voluntary agreement).

However, none of this is to say that someone cannot agree to a contract in order to use or come into possession of a copy that they do not own, and have no property rights to. In such a case, the contractee is subject to the terms of the contract (which, without authorisation from the copyright holder, cannot violate copyright, or the licence of the copyrighted work – if valid), and cannot otherwise benefit from, or be bound by, any affixed licence.

The Conclusion

If everything leads you to believe you are buying an authorised copy of a copyrighted work, there are only two possibilities:

1. You have exchanged money for a copy that the seller was not authorised to sell to you.
2. You have bought a copy and can ignore the licence if you want – no-matter whether you’ve removed the cellophane, read the licence, or clicked on some whacky button that says “I agree to accept this licence as a binding contract in order to obtain less use of the copy I thought I’d just paid for and was already my own property.”

It doesn’t even matter if you make a backup copy. Nothing on earth can be considered to obtain your voluntary agreement if it holds your own property hostage.

Even if a licence suggests that you are likely to wish to infringe copyright in ways that only the licence can authorise, it doesn’t matter. You always have a choice of committing copyright infringement or accepting the licence (whilst you remain an owner of the copy).

So, this means that yes, you can click all the unavoidable “I agree” check boxes on all the copyright licenses that pop up upon copies of software you’ve purchased without that actually constituting agreement.

1. If you don’t own the copy, you can’t be a licensee and cannot be directly bound by any licence to it.
2. If you do own the copy, any licence to it must be optional. If it appears not to be optional, it cannot obtain your voluntary agreement.

Without Copyright

Without copyright, there are no licences. Either you have rented a copy (subject to voluntarily agreed contract) or you have purchased a copy.

There is no copyright to suspend any of your IP rights for the benefit of the privileged copyright holder who can then licence them back to you.

It is, of course, still possible to exchange money for a copy that the seller was not authorised to sell to you (a rented copy).

However, if you own the copy you have purchased, then given no copyright, you enjoy all your intellectual property rights.

A Corporation And Citizen Isolation Amendment

1. Corporation may not sue citizen
2. Citizen may not sue corporation

Inspiration

The precious flower of the individual needs thorns to protect it against corporate grip.

Moreover

• If a citizen wishes to sue a corporation they can incorporate themselves to do so.
• If a corporation wishes to sue a citizen it can encourage, finance and capitalise the incorporation of the citizen – but, only if the citizen wishes (to have themselves represented by a congruent corporation).
• Corporations may not otherwise sponsor citizens.
• Citizens may not be incorporated against their will
• A citizen may not represent a corporation.
• A corporation may not represent a citizen unless it is specially created to do so.
• The term ‘affiliation of citizens’ may also be substituted in the above for ‘citizen’.

Purpose

ACACIA is a proposal for a constitutional amendment, but can be used as a principle in the interim by those who support it and wish to adhere to it on a conscientious basis.

Motivation

• To prevent citizens sufffering unethical litigation for enjoying their cultural freedom by sharing and building upon published works.
• To at least revert copyright and patent back to their more appropriate status as commercial privileges and monopolies to be enjoyed by corporations against other corporations – not against citizens.
• To provide a simple protocol that can be followed without subjective analysis to improve constitutional protection of civil liberties.
• To rectify the recognition of corporations as distinct entities from human beings, with analogous and alternative privileges to the human rights of citizens, rather than the same rights.
• To help guard against the law being exploited by corporations to subjugate the citizenry.
• To ensure litigation only occurs between entities of equal natures, that constraints and penalties intended for corporations are not levied against citizens, and vice versa.

Application

If you are a lawyer do not take on any cases between corporations and citizens.

By all means encourage citizens to become incorporated.

I am concerned about the elevation of the GPL’s aphoristic pursuit of freedom into holy dogma without due diligence.

My concern is that because the GPL restores the liberty suspended by copyright (which is jolly good) and preserves its restoration (excellent), people think that the GPL is perfect and holy in every respect and should be enshrined in law.

I’m trying to point out that actually, the GPL should only repair copyright’s damage. It should not be used to claim a right to extend ‘liberty’ beyond the public domain into the private domain.

Copyright does cause damage to culture by disincentivising sale of source materials (given a monopoly in functionally equivalent but far less useful derivatives), and the GPL’s compulsory disclosure of source is forgivable in addressing this damage. However, that doesn’t mean that if copyright was abolished we’d still need a legal compulsion to disclose source. A free market provides a quite satisfactory and effective incentive.

So, if the GPL was to be wholly ethical, instead of exploiting copyright’s ability to police the private domain it should completely nullify it. Otherwise, as I’m beginning to notice, there’s a risk of people being seduced into thinking they should indeed have a right to compel disclosure of source.

This is because, despite nullifying it to a large extent, the GPL does reserve a mild privacy violation in terms of its compulsory disclosure of private source code in published derivatives.

Now, this is quite consistent with using copyright against itself, but only if it is directed against those who would seek to re-suspend someone’s liberty or violate their privacy. However, people are beginning to believe that they have a right to seize the source code of anyone who publishes a GPL binary (mostly, the same people who believe copyright is a right rather than an unethical privilege).

This belief in a right to source code also betrays the motivation behind the Affero license and the AGPL which go even further to compel disclosure of source.

Want vs Freedom

There is a difference between:

1. having a published work and not having freedom to it, and
2. not having an unpublished work and yet wanting to have it.

Richard Stallman’s four freedoms should have been called three freedoms and a want.

• Freedom 0: To run/use.
• Want 1: To have the source code
• Freedom 2: To copy/share.
• Freedom 3: To modify.

Copyright doesn’t suspend freedom 0, although some licenses may exchange constraint upon use in exchange for partial restoration of freedom to copy/modify. Copyright only suspends freedoms 2 and 3.

The thing that suspends ‘want 1′ is not copyright, but privacy. The thing to remedy this is not compulsion or confiscation, but purchase (or gift).

This leads us to a somewhat more ethical set of principles concerning freedom:

• Freedom 0: To use purchased/gifted software in any way.
• Freedom 1: To be able to obtain source code for study or modification via a free market in which authors can offer to exchange their source code for money/goodwill offered by those who want it.
• Freedom 2: To copy, share, sell, redistribute purchased/gifted software.
• Freedom 3: To study, reverse engineer, or modify puchased/gifted binaries or source code, and use/share/sell/publish derivatives, etc.

All the above now need make no impairment to truth or privacy, nor should they.

No doubt one could also enumerate several things that arise out of rights to truth and privacy, but that’s for another day.

We can call truth & privacy respecting software that adheres to this revised set of ‘freedoms’ as ‘Ethical Software’.

‘Ethical Software’ as in ‘Software published in a free market by an author who may speak freely, is accurately attributed, and does not have their privacy violated except in order to protect life’.

Unfortunately, until the monopolies of copyright and patent are abolished we won’t have a free market.

Many people readily grasp the purpose of patents, but it’s not so easy to grasp why patents are unethical. It’s as if simply understanding how patents work, is enough to justify them.

The real issue of contention is not our desire to encourage inventors to publish their secrets, but the means by which we encourage them.

It is unethical to offer to tie the hands of all other potential inventors and manufacturers to give the publisher of the invention a commercially lucrative monopoly as compensation.

As with any property that people may desire, it is usual and ethical to invite the inventor to offer their invention (that they would otherwise keep secret) for sale in a free market. If it’s sufficiently desirable, they’ll receive compensation in proportion to its value. If no-one wants it, well, they may as well publish it anyway.

Patents arose in an age in which tieing other people’s hands to exploit their lack of freedom was considered quite an agreeable practice. It’s no longer agreeable to those it affects (the public), and it’s time it ended.

For further reading, I highly recommend Against Intellectual Monopoly by Michele Boldrin and David K. Levine.