Scott Carpenter thoughtfully picked me up on my tangential drift yesterday into the ‘freedom to modify’ vs ‘right to privacy’ encounter.

I agree that it is a very natural thing to want to publish and share, and that people should have the right to private modifications. I think we may differ in opinion about how that applies to software used over a network. It seems to me that much of the software of the future will run that way, and should we make a distinction about where the code runs when saying that people should be free to reuse it? At the same time, I wonder if there is a balance here that allows free software to thrive more when companies can use it internally (Google, etc.) and keep private modifications (that are publically offered as a service!) as a competitive advantage?

Scott, ‘free to reuse’ can easily drift into an ‘entitlement to reuse’ and then a ‘right to reuse’ and ultimately a prohibition¹ against non-disclosure of source materials to works published or publicly exploitable (non-disclosure from within the natural enclosure of the private domain).

This is why the dogmatic pursuit of Stallman’s ‘four freedoms’ is so dangerous. It elevates the liberties and property rights suspended by copyright and patent as more than things to be restored, but as new rights to overrule all other considerations.

Copyright suspends your liberty to ‘reuse’ published source code. You can purchase the source code to Windows, but copyright still suspends your liberty to modify/adapt/reproduce/distribute it. There are also laws in some jurisdictions that prevent reverse engineering of computers and/or software. It is this suspension of liberty that is the crime, that those in pursuit of freedom should be demanding the restoration of – not the breaking of ALL constraints, natural as well as unnatural.

The natural law remains: if you want something that someone has, then buy it. Invoking liberty is not a magic ‘Get what you want for free’ card, nor a valid appeal to the founding fathers, viz “Daddy, it’s my turn. Tell him he’s got to give it to me now!”.

Liberty means being able to do what the heck you want with what you have purchased – the jointly voluntary exchange of your money (or property) for someone else’s property. Liberty does not constitute a right of access.

If you want the source code that Google has then buy it. If the price you’re willing to offer isn’t high enough, well, join up with others and you may be able to offer a sufficiently high price. Just because Google is exploiting their private modifications to software someone else published, doesn’t mean they should be forced to publish them. It also makes no difference whether they publish the fruits of their exploitation, or enable the public to interact with their unpublished software.

All published works were once private, and all private works are built upon published works. This is natural. The public doesn’t have a right of access to private work, and private entities do not have a right to control use of published works (only unnatural privileges).

• Copyright and patent represent the unethical suspension of the public’s liberty.

• Privacy represents the ethical boundary of the public domain.

That copyright grants the holder unethical privileges over what people may do in public or private, does not sanctify copyleft licenses should they do anything except nullify these unethical privileges or penalise those who attempt to re-exert them otherwise.

Unfortunately, the fact that free software isn’t worth buying unless source code is available is dangerously transmuting from a ‘caveat emptor’ into a ‘droit morale’ that prohibits the sale or public use of software unless source code is provided. This may seem a subtle or trivial distinction, but it has as far reaching (and I’d say just as unethical) consequences as copyright.

Abolish copyright and do not create any law governing speech, art, software or any cultural work, that violates the private domain or suspends the liberty of those who refuse to allow their private domain to be violated. The right to privacy and publication is not trumped by the public’s curiosity and desire to study or modify. If the public want private property, they can pay for it to be published. Let not their liberty be suspended in lieu, nor their privacy be violated in pursuit.

¹ Yes, I know, some folk will be thinking “Yup. Sounds about right and proper to me!”. This is simply the authorial imperative and proprietary mentality reflected from the corporation to the community. So I say “Live and let live!” The private entity may not dictate terms to the public in use of their published works, and the public may not dictate terms to the private entity in use of their unpublished works. And by ‘use’ I mean ‘use in public or private’.

Bill Hooker commends Scott Carpenter for publishing some photos of pebbles using a PD licence, and terms it a generous impulse

I think it’s worth scrutinising why it could be considered generous.

The act of publishing photos of pebbles is not intrinsically generous. It is simply self-expression.

It can only be considered generous from the point of view of copyright, i.e. ‘Deciding not to selfishly take advantage of the state’s unethical suspension of the public’s liberty to exchange and build upon published art’.

After copyright’s forthcoming abolition, publishing pictures of pebbles will be considered as natural as walking along a beach, picking up a pebble that catches your eye and showing it to those friends who accompany you. For such a natural act of sharing and exchanging the art that we discover constitutes no sacrifice or magnanimity.

However, work that we do, should our talents become valuable, need not be disclosed until we obtain payment. This exchange of money for labour is also natural (and neither selfish nor generous), irrespective of whether the end product also comprises photos of pebbles.

Unfortunately, there is a disturbing idea that is gaining ground in the free culture movement that people should not be allowed to hoard their unpublished art. In other words, because digital art can be freely shared, it could be considered selfish to keep it to oneself. So, expect to see copyleft licenses that prohibit private modifications (that are not published free of charge on demand to any who ask).

Let our publication of the art we discover or create be a voluntary act rather than a compulsory one. It isn’t generous to publish, it isn’t selfish to keep private, it is the artist’s right and choice to decide.

That means that one artist cannot force another to publish what they wish to keep private, nor can they control what another artist does with their published work in private.

Thank goodness the pornography industry got here before the software industry (the attendant disrepute might help kill the ever increasing recognition of clickthru EULAs as consensual contracts).

Here’s the latest wretched revenue mechanism for persuading punters to pay for the porn proactively published to them:

• Punter Wants/Vendor Offers: Vendor’s porn.
• Vendor Wants/Punter Offers: Punter’s money.

Both ‘agree’ to a EULA/‘clickthru contract’ to exchange money for porn, secured by, wait for it:

Surrender of the punter’s PC to the vendor, primarily its operational effectiveness, but also its resources as a node in a pornographic file sharing system.

See MBS Porn Billing

So, what lesson must the law relearn?

Contracts cannot be entered into ‘on approval’ by dint of inaction or ignorance. Both parties must actively demonstrate voluntary, deliberate and special expenditure of effort to make and consummate any contract – in order for the contract to be binding.

• The unwrapping of a package’s shrinkwrap does not constitute special expenditure of effort to enter into a contract beyond or distinct from the purchase of the product already made.
• A DVD player’s forced display of a DVD’s legal notices does not constitute the viewer’s acceptance or recognition of those notices.
• The opening of a book does not constitute agreement to the terms set out in the frontispiece.
• The opening of a door to a publicly accessible gallery and unopposed browsing of works exhibited therein does not constitute acceptance of an entrance fee. However, the gallery may of course deny admission to those unwilling to pay the fee.
• The unopposed web browsing of an image gallery does not constitute special expenditure of effort, irrespective of inferred acceptance of ‘clickthru contracts’.
• The clicking through of hyperlinks (whether in button form or not) does not demonstrate agreement to, reading or understanding of, any attendant terms or conditions.
• Disclaimers may be informative, but they cannot affect any relationship entered into by dint of correspondence or publication. They cannot absolve either correspondent of any responsibility they would otherwise have, nor can they impose a burden or duty upon either. Similarly the lack of a disclaimer cannot impose burdens that could otherwise have been avoided.

As I’ve said before, art worth paying for is art the audience wants to pay for. So you don’t need to trick or con the audience into paying, nor hold their PCs or privacy hostage until they do. This applies to porn as much as any art…

Porn worth paying for is porn the punter wants to pay for.

Rob Myers observes that Dave Winer is wondering if there’s any support for authors against those who infringe their Creative Commons licences.

This should remind us why Free Culture should be about principles (ethics) rather than licences.

Licences still persuade people of their rightful privilege to authorial supremacy in arbitrating what may be done with their work.

Let’s try then to persuade the author away from the delusion they’re king with readers to rule, rather than a parent whose procreated progeny, post-publication, post-privacy, become public property.

An author’s castle and only kingdom is their private home, over and within which they are monarch and absolute dictator concerning their work (subject to others’ right to life).

In the public domain the public hold sway, and their predominant concern is not, as many would pretend, unbridled liberty, but its bridle of truth:

Truth in authorship.
Truth in attribution.
Truth in representation.
Truth in identification.
Truth in integrity.

So, if Dave Winer creates a spec and uniquely names it ‘RSS’, then no-one else (without authorisation) may create a different or derivative spec and name it ‘RSS’ (in an attempt to assert their version as superior), since to do so would impair truth.

This does not depend upon any privilege of commercial monopoly over reproduction, nor any licence.

However, things remain flexible. As with trademarks, the name of a work can become a descriptor for the use of the work or the class of similar works. We may hoover the carpet (and buy a new hoover – made by Dyson), or xerox some leaflets with a Panasonic copier. The use of a work’s name beyond its use as a name for the work does not necessarily impair truth in naming.

RSS as ‘Really Simple Syndication’ also names the entire field of RSS-like protocols and standards.

It is likely to be understood that there may be a wide variety of RSS specifications, and that anyone may create an RSS spec without implicitly pretending it is Dave’s original, nor that it has Dave’s authorisation, nor that it is necessarily the definitive RSS spec (unless it enjoys predominance by dint of popularity).

Simply because an author inspires a new field that inherits the name of their primary work, doesn’t mean they should have any control over the field or the re-use of their work’s name for the field and classification of similar works.

Truth is not a privilege of the author to assert or waive as and when they fancy.

Only patent, copyright, and the licences that moderate them, create these delusions of authorial grandeur.

Karl Fogel makes a great counter to Mark Helprin’s May 20th Op-end piece A Great Idea Lives Forever. Shouldn’t Its Copyright?

However, I picked Karl up on his point here:
“The idea that owning creative works is somehow a natural right thus founders on the rocks of physical reality”.

Here follows our conversation:

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Don’t mistake copyright for IP

_{Submitted by Crosbie Fitch on Mon, 2007-06-04 10:22}

Owning the works one creates is a natural right, and it does not founder on the rocks – only copyright does.

There is a natural right to intellectual property. It is this natural right that has been abused to serve as the illegitimate foundation for copyright.

This is how the abuse goes:
“Nothing is more a man’s property than the product of his mind”: Yes. Absolutely. 100% agree.

“Therefore, unlike any other craftsman, the author should enjoy the ability to stipulate how their works may or may not be used by those who purchase them, and to prevent anyone else subsequently reproducing them”: Eh? Where the heck did this illogical claptrap appear from?

Beware of dissolving intellectual property in your laudable questioning of copyright. The property bit is fine, it’s the copyright that’s claptrap.

The problem with copyright is that it unethically grants the author of creative works a commercial privilege to control use of their property even after they have sold it, i.e. they obtain control over someone else’s intellectual property.

Ditto for patents.

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Re: Don’t mistake copyright for IP

_{Submitted by kfogel on Mon, 2007-06-04 17:20.}

Sorry, but I completely disagree.

After all, what does “property” mean? Why do we have the concept in the first place? We have it because we must make decisions about the allocation and use of limited resources. But when the resource is not limited — when it can be infinitely replicated at virtually no cost — then treating it as property doesn’t make sense; it isn’t useful for society. That’s the premise on which this entire website is based.

I didn’t understand this part:

The problem with copyright is that it unethically grants the author of creative works a commercial privilege to control use of their property even after they have sold it, i.e. they obtain control over someone else’s intellectual property.

What do you mean by “after they have sold it”? What exactly are they selling? When I sell you a sandwich, you actually take a physical object from me in exchange for the money. When I sell you a trademark, you take (and I lose) an exclusive privilege to use certain symbols and phrases in certain contexts. But in the transaction you’re describing above, I can’t tell what is being sold, if not the copyright… In today’s system, when someone sells their copyright, they don’t retain control of the use of the “property” after selling that copyright. Instead, the purchaser now has control.

So, you lost me there… :-)

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Reproducibility does not destroy property

_{Submitted by Crosbie Fitch on Mon, 2007-06-04 18:38.}

The fact that we can copy at insignificant expense does not prevent ideas or intellectual works from being property.

Simply because you could make a copy for ‘no cost’, doesn’t destroy the property rights of the person who owns that which you’d copy.

If you want a copy of some of my intellectual property, perhaps a published recording I have of a singer we both admire, then irrespective of whether you can make a copy of it at no cost, it remains my property and I, and only I, will decide if you can make a copy (or that I make one and supply it to you). I may well ask for $10 for such a copy. Alternatively, I may give you a copy as a gift, but the fact remains that it is entirely my right to determine what use is made of my property.

Of course, once I’ve sold or given this copy to you, it becomes your intellectual property. Similarly, the copy I still posssess remains undauntedly, my intellectual property.

As you know, copyright interposes, suspends our natural property rights (as an incentive to the author) and stipulates that all these copies must be made with the permission of the copyright holder.

Admittedly some people corrupt “intellectual property privileges” into “transferable intellectual property rights” and then contract that into “intellectual property”.

Furthermore, the fact that copyright is transferable can mislead people into thinking that copyright is the intellectual property, but this is a wicked conflation intended to persuade people that copyrighted intellectual works belong to the copyright holder rather than the purchaser.

You buy an authorised copy, you own the copy – but copyright says you can’t copy it yourself without permission.

You buy an intellectual work, you own the intellectual work – it is your intellectual property. But copyright says you don’t necessarily enjoy (ALL OF) your rights to this intellectual property. (SOME OF) your property rights are suspended and to be enjoyed by the copyright holder instead.

But for copyright, as the owner of the intellectual work, you’d enjoy all of your intellectual property rights – none of them would be suspended to be granted (for limited times) to the author.

So, the abolition of the privilege of copyright actually results in the restoration of everyone’s intellectual property rights.

That IP maximalists overreach through copyright and patent and subsume those commercial privileges into the definition of IP does not invalidate IP. We just have to remind people that IP loses that corruption when copyright and patent are abolished.

If you like my basket I’ll weave you a copy for a dozen eggs and it’s yours.
If you like my software I’ll make you a copy of the source code for a chicken and it’s yours.

Whatever it is, physical or intellectual, until you pay for it, it remains my property. And when you’ve bought it, it’s truly your property, without let or hindrance.

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Re: Reproducibility does not destroy property

_{Submitted by kfogel on Tue, 2007-06-05 13:12.}

Hmm. I think I see what you’re saying: that in order for me to copy something from you (or, in the digital age, duplicate a bitstring), you need to make the data available in the first place. But “property” seems like the wrong word to use for this; “access” or “display” might be better.

I must admit, I also don’t see the relevance of this to anything under discussion here. I mean, sure, for person B to copy something from person A, person A must grant access. But weaving a basket is totally different from making a copy of a bitstring: one requires time and effort, the other is essentially zero cost.

You can use the word “property” to describe all these things, if you want, but it’s just going to result in a lot of misunderstanding, since most people will assume that all the other connotations of “property” apply.

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A gift of property may be easy, but ease doesn’t invalidate sale

_{Submitted by Crosbie Fitch on Tue, 2007-06-05 15:01.}

You don’t copy my intellectual property. It’s not yours to copy.

Instead, you ask me to make a copy of my intellectual property and give it to you.

I can automate this such that when you make a request to one of my agents (publishers or webservers) that they make a copy on my behalf, and supply it to you free of charge.

I can also offer copies of my IP for sale.

Just because it’s easy for me to make copies of my property, that doesn’t mean the copies aren’t valuable, nor does it entitle you to appropriate copies of my property without my permission. Indeed, the more keen you are to obtain one of my ‘trivially produced’ copies, the more valuable it is to you (and me), and the more I’ll be interested in realising this value and offering it for sale.

The critical thing to note is that once I’ve given or sold you a copy of my IP, it’s then your IP. Without copyright, I cannot stop you making copies or derivatives of your IP – irrespective of the fact that I authored it.

Relevance?

You say “Treating works of the mind as physical property fails at a basic logical level”. I’m saying that, on the contrary, treating works of the mind as if physical property succeeds at a basic logical level. The only thing that prevents this treatment of intellectual works as property is copyright.

People understand property. It is copyright that people are evidently having a problem with. “Wot? You mean I can’t copy this CD so I can play it in my car? EMI still own it? Flip that, sunshine. I bought it. They can sue me!”

I am evangelising the abolition of copyright so that everyone’s intellectual property rights are restored from notional suspension by copyright and other unethical privileges governing IP.

It’s your CD. It’s your intellectual property, and no-one else can stop you copying it, playing it, mixing it, or being inspired by it.