Jacob Tummon has written a very good paper arguing the case for the elimination of copyright (HT Karl Fogel via QuestionCopyright).

Without any authorisation or permission, I have copied his paper verbatim (from LegalTree) and it appears below.

In promoting Jacob and his excellent arguments by copying his published treatise should I be prosecuted for copyright infringement?

STOP PRESS

Jacob has asked me to remove his paper (that appeared here 23/5/07-17/10/07) in order that he can attempt to meet the criteria for it to be re-published in a conventional journal, i.e. that it not be published in any form elsewhere.

This seems a rather outdated and retrograde policy for the journal to persist in maintaining, but if one must jump through old fangled hoops to reach an old fangled audience in order to demonstrate the hoops are an anachronistic folly, well, so be it.

I’m doubtful that this removal can constitute ‘not published elsewhere’ given that publication is an irreversible event. Notwithstanding that, there are situations in which there is a right to withdrawal of published works from distribution in the case of violation of privacy or jeopardy to life, but this doesn’t actually undo the historical event of publication.

For those who’d like to know what originally appeared on this page I recommend the Wayback Machine. Entering the URL of this page gives this page as at 22/07/07.

Free Software has for various reasons been defined in terms of four freedoms (run, study, copy, modify). This is primarily because it was due to curtailment of those freedoms that Richard Stallman decided to set out the principles of software development in the form of a software license called the GPL that would restore those freedoms (for himself as for all).

There is a danger that the free culture movement, lacking any alternative, will simply substitute ‘free culture’ for ‘free software’ and adopt the same principles.

Unfortunately, the FSF definition of free software isn’t particularly sufficient for software, and it would be most unwise to adopt it for culture as a whole. Note that I’m not suggesting the GPL is unethical – it is a most laudable nullification of the unethical privileges granted by copyright and patent law to suspend the liberty of the public. I’m arguing that the ‘four freedoms’ are a flawed foundation for a definition of cultural freedom. And yes, I’d also argue that Roosevelt’s four freedoms, whilst a commendable aspiration, do not constitute a sound basis for defining human rights.

The problem is that Stallman’s four freedoms are a reaction against copyright’s suspension of those freedoms. Whilst they may serve well to mobilise a reactionary movement, they do not suffice as a definition of cultural freedom, whether in the field of computer science or any other art.

For something so critical as the definition of cultural freedom or ‘free culture’ we must go back to first principles, and ignore copyright.

First Principles

Untrammelled freedom constitutes chaos, disorder, and rule by might rather than merit. Hence harmony is created through collective and consensual constraint of this freedom.

In order to define the freedom mankind should enjoy in terms of human culture, you define the minimum necessary constraints on mankind’s freedom in the cultural domain.

Human beings need their lives protected, and their privacy respected (property, territory, space, etc). The truth of their actions and communications with each other must also be demonstrated and upheld. Beyond the protection of life, privacy and truth, no individual’s liberty should be suspended, although it may need fair balance against that of others’.

These are the ethical constraints that delimit mankind’s otherwise absolute freedom. These constraints upon all of our freedom for the protection of each of us are termed rights – often qualified as human rights to distinguish them from mere privileges.

• The right to life
• The right to privacy
• The right to truth
• The right to liberty

These rights are inalienable – not for sale, not to be waived, nor to be compromised for commercial expediency.

Mankind’s cultural activities or communications are subject to the same constraints, and so artists enjoy the same rights – and we are all artists.

However, commercial organisations are not human and are not expected to have precisely the same set of rights. Unfortunately, laws have been made in the past applying to all commercial entities, whether individual or incorporated, with the expectation that they could not abrogate the liberty of the public – on the assumption that only a few nefarious and highly commercialised individuals could meet the law’s criteria, e.g. for large scale manufacturers of contraband.

Essentially, some of these laws were intended to create monopolies among commercial entities – not to suspend the liberty of individual members of the public.

On hindsight, the corporate privilege to a commercial monopoly on art and ideas is the unethical constraint that was imposed upon human cultural freedom a few hundred years ago, in the forms of copyright and patent. This wasn’t widely appreciated at the time because it only affected those few businesses able to afford printers or factories.

So, an antique commercial monopoly has become corrupted today into a suspension of the public’s liberty.

Free software and free culture have arisen in reaction to this, as the effects of copyright’s suspension of our liberty are ever more widely felt – as we all start exploring the readily available software development, printing, recording and publishing facilities that we all have in our homes, and discovering that we are bound by centuries old, rusty manacles.

It is understandable to express this reaction as a demand for the restoration of the liberties thus suspended.

It is forgivable to express this reaction as a demand for the affected freedoms to become rights, but that is an over-reaction that cannot be justifiably maintained.

It is dangerous and invalid to focus on these affected freedoms to the exclusion of all other considerations, despite their clear unethical suspension for the commercially privileged.

This is because people then mistakenly start thinking that the freedoms they seek must become rights, must be absolute freedoms – free of all constraints – free of the constraints that protect our human rights to life, privacy and truth.

Absolute freedom has no constraint. Absolute freedom is unethical.

Without constraint, any freedom is unethical.

Ethical Freedom is Defined by its Constraints

The problem is not that our freedom is constrained, but that our freedom is more constrained than it should be – simply for the sake of commercial interests.

Free culture may be achieved by the removal of unnecessary and unethical constraints, but it is defined by the imposition of necessary and ethical constraints, not in terms of a dogmatic list of absolute freedoms or privileges.

For example, to demand a freedom/privilege to inspect the source materials of a published work to such an extent that you can send stormtroopers to break down the author’s door to obtain them, is evidently a definition of free culture that’s lost sight of ethics in pursuit of disturbingly deficient dogma.

So, when you see copyright’s unethical constraint upon certain activities, you should not mistakenly elevate those activities to be intrinsically sacred, to be protected from any constraint at all costs, such that you demand an absolute freedom to engage in those activities and/or even that the state must ensure that no obstacles prevent such activities from being engaged in.

So, how are we to define free culture?

That is the mission for another article, but the definition I will propose will essentially revolve around the four rights I have already mentioned: life, privacy, truth, and liberty. It will not involve enumerating a set of freedoms or privileges.

Each of us has freedom. Our freedom is like our own country, defined by its borders. We may enjoy our country’s fine scenery, bustling cities, and cultural produce, but our country is not defined by these things that we enjoy within it, but by where it begins and ends, from the natural boundary of a coastline, to the borders we agree with our neighbours.

As long as we respect each other’s rights, we have all the freedom we need.

If there was a succinct copyleft licence I wonder what it would look like?

How about this:

The Libertarian Licence

You are free to take any liberties you wish with my published work, with but one constraint: The liberties you take may not be withheld from those to whom you give my work (or your combined/derivative work), who you must similarly constrain.
_{3rd Revision Apr 5, 4pm}

Improvements? Errors?

As simple as possible, but no simpler…

What are the key arguments against copyright?

Copyright is not a right

Copyright is not a right, but a commercial privilege for the benefit of publishers (it’s simply initially assigned to the author – only a tiny minority of authors such as JK Rowling have sufficient funds to hire their own legal team to enforce it). Publishers are naturally keen to portray copyright as an author’s right, and the only source of income for an author (which is only true if the author only approaches publishers – rather than their audience directly).

An artist’s rights are human rights

Rights are inalienable and to be enjoyed by everyone. It is these rights that form the fundamental constraints against natural, lawless freedom.

Everyone has a right to life, privacy, truth, and liberty (in that order).

As constraints:

• An artist should not produce art that directly endangers or impairs another’s life.
• An artist should not invade or violate another’s privacy in order to produce art.
• An artist should not impair truth in their art, e.g. misattribution, plagiarism, misrepresentation, libel, etc.
• An artist should not otherwise constrain the liberty of anyone.

Copyright is unethical

It is not ethical to suspend the public’s freedom to enjoy, share, or build upon human culture, nor to grievously punish members of the public when they do assert their right to freedom.

A few commercial printers/publishers may have once willingly embraced copyright, but this cannot be extended to the public at large – even if everyone has now become a self-publisher.

Copyright unethically suspends artists’ rights in order to create a privilege for publishers

1. Copyright impairs people’s lives by fines or imprisonment simply for the act of sharing/promoting published works of art.
2. Copyright violates artists’ privacy by prohibiting them making copies or preparing derivative works of art in the privacy of their own homes.
3. Copyright impairs truth by dissuading artists from crediting their influences for fear of being accused of copyright infringement.
4. Copyright constrains the liberty of artists by preventing them publishing works that incorporate or build upon others (unless authorised).

Copyright is not necessary to artists or their audiences

Copyright may have been useful to publishers, but then publishers are no longer necessary.

GPL software is a thriving industry, and yet the GPL is effectively a nullification of copyright.

It is possible for an artist to sell their work directly to their audience – without needing to prohibit their audience against making copies or derivatives.

Copyright is no longer effective

Copyright only worked among a few publishers. When all people are also publishers, any attempt at enforcement is simply shooting fish – unlucky for the fish that get shot, but the fish population remains unaffected.

The Internet is an instantaneous diffusion device. You cannot control distribution, and yet copyright is supposed to enable exclusive distribution privileges.

To attempt to police the duplication of binary digits in the the digital domain is ridiculous.

Any more?

I’m bound to have missed some. Please let me know.

There is some degree of uncertainty when it comes to deciding whether private intellectual property, like any other private property, can be rented.

The simple answer is: “Yes, whilst it remains private property”

That means whilst undisclosed and inaccessible, because privacy delimits private intellectual property. Use does not necessarily compromise privacy.

In the case of digital art this consequently means that if you permit someone access to your art, it is disclosed and cannot therefore remain your exclusive private property. So if you rent a digital video to someone on a DVD, then they have access to make a copy of the DVD, and you cannot effectively rent the digital work upon it. This is because unless you contract the recipient to nondisclosure (a rather disagreeable practice), you have effectively published the work to them.

In order to enable rent, you must therefore physically prevent access to the work and retain ownership of the physical container of the work. However, whatever information the work permits access to is not subject to rental – it has been disclosed to the renter.

So, CDs can be rented in that the physical media must be returned, but this doesn’t rent the music thereon – the music is effectively published to the renter.

Game cartridges can be rented, but the renter can still obtain the software, given access is provided via electrical contacts. If the software is encrypted, the renter is free to apply whatever methods to decrypt it.

Sealed, handheld video players can be rented, and effectively enable rental of the work therein, given that access is only available via the screen – though this can of course be legitimately filmed. What the renter cannot do is physically break into the player in order to access the digital work. This is because it is not their physical property and their rental agreement does not permit damage.

In this case, the video is not private (can be publicly performed and recordings can be redistributed), but the details of its encoding are private. To break in to the unit in order to obtain access to the digital encoding should therefore be considered a privacy violation.

The legitimate alternative is to purchase the unit – in which case damage is a cost borne, and a privilege enjoyed, by the owner.

Rethinking copyright does not so much rethink copyright as provide evidence of how the thinking of copyright has mutated over the years and has effectively become rethought. Only by implication does it really suggest that consequently the reader or society should therefore rethink whatever understanding they had concerning copyright – whether better to accord with its ancient instigators, or perhaps to reform it anew in a new digital age.

So self-evident has copyright appeared to me as a state granted privilege of monopoly (that publication is otherwise the delivery of unencumbered knowledge to the public domain), that I have been astounded to be introduced by Deazley to the revelation that there is a predominant legal thesis to the contrary – that all authors have a natural right to exclusive control of their work howsoever it is diffused in society, and that it is only copyright that suspends this natural right.

One might think that this was in order to sequester some benefit for the public good: that the author only enjoys a dilute form of their natural right for the specified term that copyright allows, and that thereafter their property rights to their work shall be wilfully abandoned from protection by the state in order that spoils may be left to the public.

So from this perspective you can imagine how ethically enlightened the state must appear in extending the term and extent of copyright back to the author as a closer approximation of their natural right – leaving less for the greedy public.

Deazley spends the first half of the book, chapters 1-3, presenting detailed detective work with considerable citation and reference to a well researched historical record in order to show that successive legal treatises have been so selective (I can only conclude as negligence bordering upon dishonesty and commercial bias), they have steadily transformed the well understood natural right of an author to their secrets INTO the author’s ‘natural right’ to govern the use of their secrets even after disclosure – and after they have clearly ceased being secrets.

So, Deazley reduces this contemporary deceit into successive distortions of meaning and interpretation throughout history, whether through imprecise language or wilful conflation, and presents clear evidence that if the law corrects each one of these thousand cuts that it will arrive at the more honest understanding that the law originally recognised copyright as a state granted privilege, and that the natural default was indeed that publication constituted a surrendering of any natural intellectual property rights.

It seems to me that there has always been considerable commercial pressure from printers to institute monopolies, even before copyright. However, this inclination is not enough to demonstrate a natural property right. The teller of a secret may well wish to restrict its circulation, but unlike physical property, a secret once told is transformed from the intellectual property of its owner into the property also of its recipients – as it inevitably becomes public knowledge. The truth of its authorship may be absolute and inalienable, but the control of its circulation and reproduction is lost.

One thing I missed, but I presume Deazley deliberately chose not to address, is how those actors circumscribed by copyright have effectively been transformed from a few printers, able but content to abstain from infringing copyright, into the many members of the public today enthusiastically engaging in it (with the tacit blessing of their peers).

Law that initially had little impact upon the liberties of the public, and had the public benefit at heart, is now almost completely occupied with measures to restrain the public’s baser instincts to compromise and damage publishers’ livelihoods.

History simply whizzes by, and it is as if the law was always written with the intention of indoctrinating our children as how best to respect each other’s ‘natural right’ to determine how their artistic endeavours may be exploited. This is presumably to compensate for nature’s failure to instil such an instinct or power.

Copyright now governs the individual. That it was once intended to govern a select few fortunate enough to own printing presses is a vestigial curiosity.

Deazley doesn’t attempt to judge the distortions that have occurred throughout copyright’s history – or those who have made them. However, he does provide a possible excuse for those culpable. He suggests that it may be an unavoidable consequence of how law evolves, not necessarily merely from precedent, but also from how precedent is observed, and in turn by how observations are interpreted – that law is an aggregation of interpretation perhaps as much as, or more than an aggregation of judgement. And, I infer, those who interpret may not be entirely free of prejudice.

The foundation Deazley so painstakingly arrives at is this: copyright is not, and never has been, a natural right to be protected by common law.

Conversely, the right of first publication, also recognisable as the right of disclosure or divulgence, is a distinct right accruing from the fact that private creations or secrets behave as any physical private property whether incorporeal/intangible or not. This has always been understood as protected by common law – irrespective of whether copyright also recognises it. That a secret may often be divulged or disseminated through the manufacture of copies is a coincidence that, perhaps because of linguistic ambiguity, many people have conflated with copyright – and probably precisely in order to confer the natural right to own secrets as a natural right to invigilate their strict circulation.

Deazley shows that many have argued that if a secret is valuable, it cannot possibly be sustained that if its value results from its interest to the public, that the moment of its publication must necessarily result in the complete loss of this value to its author. I use the word ‘secret’ to clarify my interpretation, as you’ll not find it mentioned in this book. All who claim a natural right for an author to retain the value of their work upon publication emphasise their self-evident natural right to the value of their labour, and that it is the duty of statute to protect this value. No-one is interested in taking any clues from the fact that it is only by this means that value can be preserved at all, i.e. that there is obviously no natural right.

In the second half of the book, chapters 4-6, Deazley begins the process of proposing at least better attention to language, if not its reformation.

He discusses the concept of the public domain, and because the public domain has now been enclosed by a vastness of copyrighted works (that some insist remain within their author’s private domain – despite publication), Deazley sees fit to invent a new term, the ‘Intellectual commons’, and what was once the private domain is now termed the ‘Undisclosed domain’. Published works now fall into overlapping ‘public domain’ and ‘copyright protected’ areas.

Deazley observes that the term ‘public domain’, being the set of works or parts thereof to which the public has liberty, is not so much a legal construct (perhaps intellectual property rights of the public), as a term that has necessarily been created to describe what the law omits to recognise as its subject. Deazley suggests that it may be useful to focus a little more attention in this area, especially with regard to terminology. Perhaps also, that the law fails to embrace the fact that authors’ ‘rights’ do not exist in a vacuum, and that what is reserved for the author’s benefit necessarily removes equivalent liberty from the public – and consequently intellectual property from the public domain, and the public’s benefit.

It seems that Deazley’s key act of sedition, by way of the author appearing over the parapet of the edifice he’s taken such pains to erect, is his proposal that terms such as ‘intellectual property freedoms’ and ‘intellectual property privileges’ are more accurate, less liable to confusion (and misrepresentation), and are more honest with the historical record than arguably pejorative terms such as ‘intellectual property rights’.

And all the while, with a title such as ‘Rethinking Copyright’, I had been expecting the build up to an accusation that the emperor had no clothes…

I have argued in the past that intellectual property is an appropriate term per se, but only if one considers that one necessarily confers shared ownership of intellectual property when one conveys ownership in a copy (of its constituent information).

Thus, intellectual property may be privately shared (by contract), or publicly shared, through copying. It is the voluntary act of conveying the work without contract to a member of public that constitutes publication, given one thus surrenders any natural right to control further disclosure or reproduction by that recipient. Everything else (copyright and patents) that impinges upon this is an unnatural (and I’d say unethical) legal construct for the purposes of commercial expediency (originally supposed to be the public benefit).

I am not really sure Deazley is right that things will be improved by creating new, less ambiguous terms, than in attempting to reclaim original, or more honest meanings of existing terms.

I get the impression that Deazley is fearful to do anything except present all the evidence necessary to dispel any notion that copyright is a natural right. He appears to shy away from actually stating these conclusions, and when mention is made of copyright being a monopolistic privilege, it is not his assertion, but at most his question.

Deazley does check the European convention of human rights, but I don’t think he comes to any clear conclusion as to whether it offers any opinion on whether copyright is a human right. From my reading, I think it rightly indicates that all should have an equal right to protection of any intellectual property they possess. It doesn’t specify what delimits IP, and certainly doesn’t require that humans have the exclusive right to control use of their authored works even after publication. If copyright is abolished tomorrow, I do not see any indication that the convention would require its reinstatement.

This book is a foundation stone upon which I suspect Deazley hopes further enlightened structures and propositions will be built. And whilst some may find the resulting archtecture an apparently radical departure from the present aesthetic, he lays the groundwork to demonstrate that it must actually be a more harmonious reprise of a classic tradition. Hopefully, Deazley lets reformers see where the bedrock of natural right ends and where the faux granite clad timber frame of privilege truly begins.

Another thing I felt the book might have covered a bit more concerns the overreaching nature of copyright. It doesn’t simply concern itself with copies, but also with derivatives. Copyright doesn’t only govern the reproduction of identical copies, but also, because of contagion by provenance, the derivation of new works. This may be in order to prevent a monopoly on perfect copies being circumvented by minor adjustment, but that seems to question the validity of the monopoly in the first place, rather than justify a prohibition on derivation.

There are also the strange differences between patent and copyright. Copyright protects by provenance, whereas patent protects by similarity. Patent embraces public enhancement, whereas copyright prohibits the preparation of derivatives. If these statutes arise out of natural law, why have they been interpreted to behave so differently?

So, why should you read ‘Rethinking Copyright’?

Well, if you need evidence that all is not as some lawyers would have you believe, then you’ll find it here. If you wish to understand how the present law has become such a distorted interpretation of its original incarnations you’ll have eminent pointers.

The biggest revelation for me was in discovering that copyright could possibly be considered a natural right. That in the absence of statutory copyright a stricter regime of a more absolute, natural copyright takes over, seems preposterous to me. However, Deazley gives the case of Naxos as an example where an old work, one might consider entered the public domain, conversely reverted into the protection of the ‘common law copyright’. It seems that it is only philanthropic observers of copyright law who infer that the term of copyright is intended to define the duration before which a work enters the public domain. On the contrary, copyright’s term only governs the period in which a work is subject to copyright’s jurisdiction – after that, all bets are off – the public domain is not recognised, let alone mandated as an inheriting beneficiary.

If you already thought copyright was crooked, this book will persuade you to rethink just how crooked it really is.

Otherwise, this book betrays the motives that give rise to the trajectory of copyright law that so conveniently and coincidentally follows the trajectory of technologies and actors that would otherwise threaten it.

And now, the ultimate threat, the public, threatens a law supposedly made for its benefit. Copyright vs the public – immovable incumbents vs unstoppable mob – not a pretty sight, but one we have to look forward to, and hopefully prepare for.

Inescapably, this book reinforces my suspicions that commerce has biased the evolution of copyright law, and strangely this does not persuade me that the solution to copyright’s conflict with the public lies in revealing this historical bias, but that providing a commercial solution will bias copyright’s reform, and may well be the only thing that can possibly achieve it. At best, the law is a product of well heeled philanthropists. Their less scrupulous successors are commercially financed lobbyists. The supposedly represented people can only revolt, although the Internet should facilitate a more peaceful collective action – such is my hope.

This book was well worth my time and I thoroughly recommend it to anyone wondering how so many lawyers can justify the inequity of copyright.

In Rethinking Copyright, Ronan Deazley does not so much challenge copyright, as demonstrate that it is a privilege that has been rethought as a right, rather than vice versa. It is on this foundation that we may then proceed to question the merit of such a privilege – for we cannot question rights. Let not the language favoured by commerce mutate privileges into rights in order to grant them immunity from challenge.

As the book’s subtitle indicates, history, theory, and language are all critically important aspects as far as copyright is concerned. Only after you apprehend them can you hope to apprehend copyright.

This apprehension begins with the laying of a foundation stone that consolidates the truth of copyright as a privilege. This is Rethinking Copyright.

Rethinking Copyright – History, Theory, Language
ISBN13 978 1 84542 282 0

Ronan Deazley teaches in the School of Law, University of Birmingham, UK

Hat tip: William Patry’s review: Why UK Scholars Eat Our Lunch

1. Once upon a time an enterprising young lass called Gladys bought some GPL source code for printing biorhythms at the princely sum of $5 from a clever chap called Brian.
2. This is because Gladys had the brilliant idea of selling biorhythm charts. So, she goes to a public market, sets up her stall with the now compiled program on her notebook PC and a printer.
3. She sells biorhythm charts to punters for $1 and their DoB (she respects their privacy and does not retain this data).
4. She’s very successful.
5. One day, a punter asks to buy a copy of the GPL program she’s using. She sells a copy for $100. She’s quite happy to enjoy a free market and isn’t interested in a monopoly – she doesn’t think it fair for anyone to be able to send round government funded thugs to force people to get their copies only through authorized vendors.
6. The business goes from strength to strength, and she becomes so busy, eventually, she writes a simple character based user interface to let punters preview their biorhythm on a separate CRT that she plugs into the back of the notebook – along with an additional keyboard (with a few keys missing). This way people can see what they’re getting and only pay her $1 if they really want a printout.
7. In her spare time, Gladys then modifies the program to generate a pseudo-random horoscope along with a biorhythm.
8. She also recodes her UI using HTTP/HTML via a local browser. She finds the punters more familiar with this user interface.
9. She then has the bright idea of letting people use e-cash instead of real cash, so she connects her laptop to a local WiFi access point, and enables payment of the $1 for printouts via PayPal.
10. She can now almost let her biorhythm/horoscope printing service run itself – apart from the occasional cash sale. She can spend most of the time at her market stall making sure no-one runs off with her computer, and generally providing excellent customer service.
11. One day a punter offers her $500 for the biorhythm/horoscope program – she tells them she based her work on a biorhythm program by a chap called Brian and directs them to his website, but says her modifications (including GPL) are for sale at $9,000. The punter declines to purchase.
12. Gladys soon is so busy she starts thinking of setting up three computers, and employing staff to help, but realises it wouldn’t be economic. Instead, Gladys decides to provide the printouts by mail order and let punters interact with her software via a webserver on the Internet.
13. Gladys then discovers click-thru and starts selling advertising space on her web site. Given significant advertising revenue she soon discontinues printout sales. She uses CSS to produce HMTL output in a quality suitable for punters to print their own charts.
14. Eventually Gladys decides to sell up and move into a different line of work. She offers a copy of her software along with GPL license via her website for $20,000.
15. One day, someone offers $15,000 – she accepts. She provides all the software with full source code and the GPL.

The question is: Is there a point at which anyone (a punter, Brian, the FBI) is justified in demanding that Gladys surrenders her modifications free of charge? If so, at what point?

The question arises because unbeknownst to Gladys, Brian had been tipped off about her business at some point and was extremely angry and upset at something that Gladys had done (or failed to do), and had consulted various lawyers with a view to prosecuting Gladys over her exploitation of what turned out to be a something that Brian called a loophole.

The Artist’s Hippocratic Oath _(AHO):
“I will not accept the enslavement of my fellow man, nor any imposition upon his liberty, as reward for the publication of my art”

In a comment upon Tim Cowlishaw’s excellent article Ethics, employment and free software it appears to have been inferred by Terry Hancock here (expanded in his later article) that if an employee takes the Artist’s Hippocratic Oath they will be unemployable by any employer who enjoys the use of copyright or patents.

This is not actually the case.

The AHO only means that the artist will not accept the suspension of the public’s liberty as reward for their publication of their work, it doesn’t mean they won’t accept monetary reward for their private labour (work for hire) – from someone who is willing to accept the suspension of the public’s liberty in exchange for publication.

So as an affiant you do not have to resign simply because your employer is unethically accepting the reward of the suspension of the public’s liberty and exploiting it. Stay there and persuade them to be more ethical, or leave for a more ethical employer.

All the AHO means is that if you have produced a work that you are the copyright holder of (solely or in part), or on the understanding that you will enjoy entitlement to copyright of this work, then you will either keep the work private, nullify its copyright, or deliver it to someone who will (keep it private or nullify its copyright). However, this does preclude selling the work (including the transfer of copyright) to a publisher who is not bound to nullify the copyright.

So, in a way, the typical employment contract absolves you of ethical responsibility since it withholds the entitlement of that responsibility from you, e.g. “As a condition of employment with us, you will not enjoy any title, copyright privileges, patents, or royalties to the works you are involved in producing – though you may receive credit (non-compulsory)”.

So, I hope you’ll soon join me as an affiant to the Artist’s Hippocratic Oath, whether employed or not.