I’ve had a little discussion with Nick R Brown and George Ou on the DigitalSociety.org blog in the comments to Nick’s article “Whoa Shelly Roche…Stealing Does Not Equal Free Speech”. The blog says it is “Pro-Culture, Pro-Commerce”, and that’s what I am, so what could we possibly have to argue about?

Unfortunately, due to copyright restrictions in your country, Nick’s and George’s comments cannot be shown. However, thanks to the sophistry of the so-called idea/expression dichotomy some lawyers believe I still have the liberty to paraphrase another’s words (even though those paraphrasings constitute an act of unauthorised copying, i.e. a copyright infringement, which, if I could afford the spondulicks to take it to court, may be regarded by a judge as fair use/dealing).

I start the ball rolling with an example of the difference between ‘theft of intellectual property’ and ‘copyright infringement’.

27th September 2010 at 11:48am, Crosbie said:

If someone burgles your house, takes a copy of your diary, and then removes it as they abscond, then that is THEFT of intellectual property, but just you try getting the police to help you recover it.

If you publish your memoirs as an e-book and a purchaser thereof makes a few copies to share with their friends, then that is the infringement of an 18th century privilege your publisher enjoys – a reproduction monopoly established by The Statute of Anne in 1710 for the benefit of her Stationers’ Company. This was copied by James Madison and unconstitutionally passed in 1790 as the US Copyright act – the annulling of the right to copy in the majority, to leave it, by exclusion, in the hands of a few – an instrument of injustice (per ‘Rights of Man’ by Thomas Paine).

Preventing copyright infringement is therefore a derogation of the right to free speech.

Securing the author’s natural exclusive right to their writings (against theft or copying by burglars) is NOT a derogation of the right to free speech – we can have no liberty to speak that which we do not know, nor liberty to communicate or copy that which we do not have.

27th September 2010 at 2:29pm, Nick’s comment, paraphrased:

Copyright is the law!
For better or worse, all must obey.

27th September 2010 at 3:15pm, Crosbie said:

Not so long ago Nick, someone liberating a slave was considered to have stolen property from the cotton farmer.

Reclamations of liberty do tend to be perceived as theft by those with privileges derogating from it.

Whereas slavery suspends all liberties from a few, copyright suspends a few liberties from all. So it’s a little more socially tolerable.

Remember that copyright even suspends the author’s liberty to copy their own words. Moreover, if they produce a work for hire or sell their copyright to a publisher, they no longer even have the privilege of copying their own words.

Would you still call it theft for an author to make a copy of their own book – contrary to their employer’s or publisher’s privilege?

Copyright indoctrination corrupts our language into a newspeak Orwell would be unsurprised by. We use ‘right’ in place of privilege, ‘steal’ in place of copy, ‘theft’ in place of infringement, and ‘piracy’ in place of cultural liberty.

Prior to 1710 every individual could share and build upon mankind’s folklore, folktales, and folk song. Today only the likes of Disney are permitted such cultural liberty. Human beings must sit back on their couches, pay through the nose, and consume, but not touch, the content that is delivered to them by multinational publishing corporations. ‘Soma’ as Huxley would term it, but ‘content’ works just as well.

27th September 2010 at 5:16pm, George’s comment, paraphrased:

Copyright is nothing like slavery!
An author doesn’t have to part with their privilege.
You can still derive from Grimm even if not Disney.

28th September 2010 at 5:14am, Crosbie said:

I think I was contrasting the quite different way in which liberty is abridged today than it was a century or so ago.

Instead of brutal coercion by slave owners, today we have the kindness of the judicial system dragging youngsters through the courts to fine them millions of dollars for sharing music, imprisoning cinema goers for pointing their iPhones at the cinema screen, recording industry lawyers’ litigious extortion bankrupting thousands of families unable to afford to defend themselves, and soon, households to be disconnected from the Internet merely upon accusation.

So today, yes, it’s a lot more civilised. The enforcement of copyright’s suspension of individuals’ liberty is removed from the crude agricultural environment and hygienically institutionalised behind closed doors – and there but for the grace of God go us all.

One of the Founding Fathers, Thomas Paine, had this to say about privileges in his book Rights of Man:

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.

28th September 2010 at 5:58am, George’s comment, paraphrased:

Million dollar fines are ridiculous, but settlements are reasonable.
No-one goes to jail for camming in cinemas!
The mob has no right to take wealth from wealthy.

28th September 2010 at 8:47am, Crosbie said:

You can finesse everything I write as hyperbole, as no doubt apologists for injustice would have done in centuries past, but at some point your suspension of belief must give way to the rising tide of reality.

Emmanuel Nimley: Graduate who used iPhone to record blockbusters inside cinema is jailed for six months in landmark ruling. Not everyone is so enthusiastic to mete out Queen Anne’s 18th century ‘justice’, see Why I am not ashamed of Emmanuel Nimley.

This is nothing to do with envy of others’ accumulation of wealth through the exchange of their labour in a free market, but the exploitation of monopolies obtained through the abrogation of everyone’s liberty to share and build upon their own culture, upon mankind’s science, technology, and arts.

28th September 2010 at 3:50pm, George’s comment, paraphrased:

The Nimley case is a one-off.
You’re suggesting copyright enforcement is violation of human rights.
For my views see “A kinder graduated response system”.

28th September 2010 at 5:28pm, Crosbie said:

I cited the Nimley case because it was the most recent.

This has been going on for years.

Try a search:

• Taiwan Movie Pirate Arrested Camcording The Fast and The Furious
• Montreal Police Arrest Man For Camcording In Theatre
• Woman Jailed 2 Days for Filming Movie Screen Sues Theater
• ANOTHER MOVIE CAMCORDER ARRESTED IN HONG KONG
• Teen Arrested for Recording 20 Second Movie Clip

Yes, copyright is an intrinsic “violation of human rights”, I’ve already agreed this, that it’s a derogation of the natural right to copy from the individual’s liberty. Imprisoning people for pointing their phones at films is extremely offensive. Suggesting that people should have their cultural liberty restored to them is rather kind I’d say. What do copyright holder’s lose except an ability to sue, fine, bankrupt, levy, disconnect, or imprison members of the public? Authors and artists retain the right to exchange their labour, their intellectual work in a consequently free market – and if you have a thousand fans commissioning your work at $10 each, that’s a pretty good deal compared to a 1% royalty from a publisher (if you’re lucky).

29th September 2010 at 1:10am, George’s comment, paraphrased:

Do you really think artists can make a living without copyright, on live performances alone?
I maintain there should be reasonable penalties for infringement.

29th September 2010 at 6:37am, Crosbie said:

On the article of yours that you linked to you say “Now I want to be clear that I am not talking about pirates that are making mass illegal duplications and selling them. Those people need to be severely fined and jailed.” It’s a bit of a challenge to reconcile that with “I personally oppose criminal penalties for copyright infringement or outrageous fines”.

Bear in mind that every youngster auditioning artists’ work via BitTorrent is typically engaged in mass illicit duplications and selling them in the sense of exchanging their valuable bandwidth (sale/commerce is exchange).

Civilisation cannot progress if mankind has perversely enacted laws that prohibit cultural or technological exchange.

If copyright and patent holders’ only source of income is obtained through the exploitation of their privileges then they cannot survive without them – so yes, they need to stop being parasites and find something productive to do that people will pay them for willingly, not through extortion, monopoly, or licensing people’s liberty back to them.

Creators, intellectual workers, authors, inventors, sure, the last things these productive people need are laws that prevent them exchanging, improving, or building upon culture and technology. They can then exchange their labour in a free market.

Copyright and patent are the regime. Their absence is the absence of a coercive regime, a restoration of cultural and technological liberty, leaving us only with our natural rights to be protected by law (not privileges).

As for live performances, who said anything about performances having to be live? A musician can perform in a recording studio as well as in a concert hall. A thousand fans can pay $10 a piece for the recording of a studio performance as much as of a live one. The privilege of a monopoly in copies thereof may well be lucrative to whoever can win that favour from their Queen, but it remains an instrument of injustice. The musician is still able to exchange their labour in performing their music for $10,000 from their thousand fans. If they do not have a thousand fans they are in the same predicament as any craftsman with insufficient demand for their products or services. There is no right to be paid for your labour, only to be free to exchange it for whatever the market will bear. I have no right to be paid for my comments here. Indeed, instead of giving them freely I could have withheld them and instead invited you to commission my participation in discussion with you. There’s nothing wrong in commerce concerning intellectual work, only in the grant of mercantile privileges such as monopoly. Have you not heard “Free as in free speech, not as in free beer”?

29th September 2010 at 10:57am, George’s comment, paraphrased:

Taking work is not cultural exchange. It’s theft.
Copyright and patent were enacted to promote culture and technology. Monopolies encourage giving it away.

29th September 2010 at 12:31pm, Crosbie said:

It is strange that I am the one who must convince you how draconian and severe the measures are that copyright holders will resort to. If I can recognise the exchange of bandwidth as commerce do you think industry lawyers will hesitate to do so too?

While the weapon exists the unscrupulous will wield it, and copyright is indeed a weapon, a most iniquitous instrument of injustice.

If you wish to believe that cultural liberty is theft, that prohibitions against people’s use of their own culture and technology constitute incentives to do so, then such doublethink is your choice, but religious dogma will not get you to the moon. For such progress you must abandon your geocentric programming and dare to consider the heresy of heliocentricity.

The comfort of the blue pill, or the paradigm shift of the red pill?

30th September 2010 at 10:08pm, George’s comment, paraphrased:

It seems you hope for more draconian legislation so you can argue for abolition. I support neither extreme.

1st October 2010 at 1:14pm, Crosbie said:

The copyright maximalists WILL take a harder stance: DMCA, ACTA, COICA (and others like INDUCE). There will be more injustice to come. I’m expecting ‘possession of unlicensed copies of copyright protected works’ to become a crime comparable to ‘possession of a proscribed narcotic with intent to supply’. And I’m expecting you to have your work cut out arguing for leniency, shorter jail terms.

This trajectory is not a matter of hope, but inevitability.

I am not in the business of hoping or lobbying for ever more draconian legislation, but in solving apparently intractable problems, inventing what is necessary, and arriving, when the impossible has been eliminated, at what must be the truth (however incredible or ‘extreme’ you might find it).

The monopoly of copyright is at an end. It cannot be resurrected through argument. However, for the sake of fundamentally innocent people the world over, it can be argued to be abolished – sooner rather than later.

In Moral Rights, Endowment Effects, and Things in Copyright Mike Madison exhibits a fair amount of confusion concerning the difference between a privilege such as copyright and moral rights. So, I’ll explain…

It is pretty straightforward.

There are privileges concerning intellectual works, and there are (natural) rights concerning intellectual works.

Copyright is a privilege granted for the benefit of the press (necessarily arising in each original work – a work that involves no copy).

Moral rights refer to the (natural) rights pertaining to an intellectual work and its use.

Unfortunately, in many jurisdictions the understanding of moral rights has been infected by the unnatural aspects of copyright and thus takes up a more proprietary aspect.

For example, instead of a moral right to integrity being a correctly understood as a matter of truth (that a work presented as the author’s is indeed the unadulterated work of the author), it is improperly taken to mean that an author has the power to veto any modifications or derivatives they feel to be insulting to their work or reputation.

In being indoctrinated to believe copyright is a right, people are then confused when confronted with a natural right. For example, people wonder how an author can have a perpetual right to identify themselves as the author of their work when they can only prevent copies of their work for a century or so. This is because the natural right to truth is inviolable and belongs to all, not just the author. Whereas, the privilege of suspending everyone’s right to copy is granted at law and thus arbitrarily limited. Authorship of a work is a fact and is eternal.

As for the ‘doctrine’ of first sale, it’s only called a ‘doctrine’ because some would like to undermine consideration of copies as the property of their purchasers. Copyright only suspends the right to make copies. It does not impinge upon the recognition of an authorised copy as the material and intellectual property of its purchaser. When you buy a book, you retain the natural right to exclude others from it. Only your natural right to make copies or otherwise communicate its expression has been abrogated by copyright. You at least retain the right to exploit and communicate the knowledge therein. So, selling what is your property (since no copying or communication is involved) cannot infringe copyright. What some claim undermines this is if a purchaser performs an act only permitted by a license attached to the work where that license is conditioned upon the purchaser consequently forfeiting ownership of the work. However, since no agreement or exchange actually occurs this is not a valid transfer of property. In any case, sale of the work simply means that the purchaser could not complete the conditions of the license and so has infringed copyright – not ‘disposed of stolen property’ (per inferred agreement to transfer its ownership).

Doc Searls asks Do we have to “trade off” privacy?

My simple answer: No, nor can we.

Privacy is a natural right.

Privacy cannot be given away.

Privacy is the individual’s natural ability to exclude others from the spaces they inhabit and can secure – including the material and intellectual possessions within.

What people give away is information about themselves, in their statements to others – other individuals who also have the freedom of speech and a natural right to liberty to communicate that which they have been made privy to.

No individual can alienate a natural right from themselves. Thus a right to privacy is a right to exclude others from what you have not told them, but not to gag them from speaking what you have told them – even if they wanted to surrender their right.

That’s privacy as a natural, human right.

NB Non-disclosure agreements may make continued employment contingent on non-disclosure, but they cannot actually suspend an individual’s liberty to disclose the knowledge they have been made privy to (a corporation, having no such right, can of course be so bound).

Everything else is a matter of confidence and discretion – as it has been since time immemorial. How well confidants can be relied upon to be discreet depends upon how well you know them and how well others do (their reputation). How well they maintain your confidence has repercussions for your trust and their reputation.

It is impossible to do business with someone and have a relationship with them without revealing any information. That said, it is possible for an individual to conceal their human identity, to do business via an artifical identity (with its own trading reputation), thus maintaining a business relationship without necessarily disclosing personal information.

Privacy is about preventing people from knowing what you’ve not disclosed, not about preventing them from disclosing what you’ve let them know.

John Bennett in First (free speech) amendment trumps copyright reflects on Mike Masnick’s observation that certain parts of the Emperor’s modesty may be visible from certain angles:

Mike Masnick takes up the question of the conflict between copyright and freedom of expression link here. I have to admit it came as a revelation to me. Is there any way to argue that copyright doesn’t limit one’s freedom of expression? If you think it does as I now do, then your argument conflicts with the First Amendment of the Constitution which says “Congress shall make no law… abridging the freedom of speech….”

This provision clearly conflicts with Article 1 Section 8 which gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;….”

I am no lawyer, but since the first amendment was passed on March 4, 1789 after the Constitution was ratified on September 25, 1789, it would logically override that part giving Congress such power (for dates link here). Of course, there is never any certainty about how the Supreme Court may decide an issue.

Mike recommends a book which I haven’t read yet, but his statement is pretty strong. He says David Lange and Jefferson Powell, the authors of No Law, “spend the first half making the compelling and detailed (if densely written) case that copyright law absolutely violates the First Amendment.” They apparently backslide in the second half.

I do take personal exception to Mike’s comments on the State Department officials toadying to the IP interests. As a middle aged and fairly senior diplomat, I had to try to enforce our IP agreements with the Korean government. I had no option to express an opinion, but instead was told to enforce what I was told was the law.

I reply:

John, as you’ll see in the comments to that article, I argue that there is no conflict whatsoever between the 1st amendment and the clause empowering the securing of an author’s exclusive right to their writings.

The problem is between the unconstitutional legislation of copyright (re-enacting the Statute of Anne in 1790) and the individual’s natural freedom of speech and cultural liberty – from which the natural right to copy was derogated (to grant the privilege of copyright).

Natural rights do not conflict with natural rights. You can have no freedom to speak that which you do not know, nor liberty to make copies of that which you do not have. If an author can naturally exclude you from their writings then they can naturally exclude you from copying them. Such are the natural rights that a government is empowered to secure.

Copyright is nothing to do with such a natural right, it is not even the securing of such. Copyright is the holder’s privilege to prohibit people who have been GIVEN writings, from making copies of what is in their own, legitimate possession – a diminution of their private property comparable to a burglar’s vandalism and so a form of theft.

• Copyright is theft.

• Cultural liberty is copyright infringement.

The doublethink to the contrary (copyright encourages speech, infringement is theft) is so Orwellian purchasers didn’t even blink when copies of his books in ‘electronic’ form were ‘unpublished’ from their private possession due to a copyright licensing issue.

Copyright indoctrination is now so ingrained it constitutes hypnotism or brain damage. And as with subjects of hypnosis, inherent conflicts in what one ‘knows’ to be incontrovertible are impossible to resolve – until the hypnosis is undone, until the indoctrination is deprogrammed.

But for people to confront the possibility that copyright is as much an ethical offence against human rights as slavery¹ is so terrifying, that “No! Copyright must be good. Copyright is good!” snaps people back to the comfort of their programming.

________________________________

¹ Whereas slavery suspends all liberties from a few, copyright suspends a few liberties from all.

Intellectual and material work are both naturally property since they both exist physically.

Copyright and patent are privileges, monopolies that suspend people’s liberty to produce copies of their own property or utilise/reproduce certain registered designs. They have nothing to do with making writing or designs the property of their authors or inventors – nature does this, as it imbues those creators with the exclusive right to their work. We have a natural right to exclude others from our private possessions, to prevent others copying or using them, but that doesn’t mean we can control others in the use of their own property, which includes what we sell or give to them.

What people subconsciously infer from copyright and patent is that patterns can be property, that wherever they proliferate/manifest in the universe those patterns must be regarded as the property of those who can claim to have originated or first registered them. That’s the spooky and quite unnatural delusion that so many people have been indoctrinated with – because it is lucrative to exploit such people’s consequent willingness to surrender their liberty (to utilise ‘spookily pervasive’ patterns that someone else has claimed as theirs).

There can be no justification for granting instruments of injustice (aka privileges). That a grant of such a monopoly in literary works might aid the public’s learning is a pretext, not a justification. Copyright was enacted to aid the state via a rewarded and beholden press. This is the same unethical motive behind ACTA, to control the distribution of information to and by the public, for the wealth and power that follows – not for the public benefit. Such corrupt legislation as copyright and patent is made for the benefit of those few in a position to benefit from it today and tomorrow, not for the benefit of generations hence – who having lost their liberty instead reap the cultural and technological deficit.

The wilful infringement of what is typically an immortal corporation’s privilege is today regarded as a venial sin, like sex before marriage. Everyone pays lip service to the censure that those who engage in it are reprobates, but behind closed doors everyone indulges in it – with a wink and nod across the pews after. But who can pretend righteous satisfaction to see delinquent youngsters sued for millions by legally created entities as a lesson to their peers? Who can then still refuse to recognise the definition of copyright as an instrument of injustice? Until people snap out of such complicity, and recognise that cultural intercourse is not only natural and within each individual’s liberty, but is fundamentally vital to mankind’s health and progress, then we work to the beat of the Morlocks’ drum.

Did you know that the definition of ‘public domain’ as ‘the few published works not protected by copyright’ is very recent?

All published works are supposed to be in the public domain. This was the original pretext behind copyright – to incentivise the delivery of novel and educational works into the public domain – for the public’s benefit (albeit at the cost of cultural liberty).

The modern understanding that copyright protected works are NOT in the public domain is a corruption in meaning we have to thank publishing corporations for. They want to stamp out any notions the public might otherwise get that published works somehow belong to them.

So even today, publication is still supposed to be delivery to the public (into the public domain) of knowledge, art, facts, ideas, etc. An intellectual work is supposed to enter the public domain from the moment of its publication. Allegedly, this delivery is incentivised by copyright.

It is only in the 20th century with the growing recognition by the public of the potential to utilise reproduction and communications technology to share and build upon published works that a work’s copyright status enters into the consciousness of the public at large.

Prior to the 20th century only publishers (or those editors/authors expecting to utilise a published work for inclusion, translation, abridgement, or derivation) were concerned about a published work’s copyright, or as we’d esoterically put it today, whether the work’s fixed expression was in the public domain as well as its ideas.

So it’s a very subtle perceptual shift that has occurred – recently. Only recently with a technologically enabled public is it more important to know whether a work’s fixed expression is available to the public than whether its ideas are.

And that’s why it’s only in the 20th century that ‘public domain’ has changed in meaning from ‘All published works and everything otherwise known to or accessible by the public’ to ‘Anything not protected by copyright’.

With such a gradual transition in meaning paralleling a gradual transition in technology (and publishers’ sabre rattling) there is no single point at which the meaning flipped from one to the other.

And so now, instead of all published works being considered in the public domain irrespective of copyright, everyone happily accepts the myth that ‘public domain’ has always meant ‘Anything not protected by copyright’.

The transition of public from ‘consumers’ to self-publishers trespassed upon the traditional publishers’ territory. That’s why the latter’s semantic inveigling of domain boundaries consolidates the ‘correct’ understanding that 99% of what would have been the public’s own culture properly belongs to immortal publishing corporations (what else would seek to extend an 18th century privilege from 14 years to a period far in excess of mortal lifespans?). Now they would have us believe that not even the ideas are in the public domain. All aspects of a copyright protected work now remain entirely the intellectual property of the copyright holder. Published works have now been repossessed, removed from the public’s grubby mitts and re-enclosed in a quasi-private domain (corporations can have no shame in claiming such human rights as privacy).

We, the public, thus find ourselves in possession of mere scraps, the cultural residue not worth appropriating and enclosing for proper and perpetual commercial exploitation.

Copyright is effectively a tax on the public’s cultural liberty. The state may collect a small portion of that tax to spend on the public’s behalf, but the bulk ends up in the corporations’ coffers (largely foreign). So why not abolish copyright and leave 100% of the value of cultural exchange in the public’s own hands? The state then ends up collecting more in tax from the greater cultural prosperity of its own citizens. The only ones to lose out are those immortals hoping to further exploit, enforce and extend monopolies that are increasingly ineffective – an admittedly very powerful lobby.

Effective intellectual property protection and enforcement are essential for electronic commerce to thrive. Existing intellectual property laws need to be applied in the digital environment.
From: Facilitating the Digital Economy A WITSA Position Paper – 5/98

Today the corporate state attempts to persuade us that unless our culture is ‘protected’ by the monopoly of copyright (a privilege granted to the Stationer’s Guild by Queen Anne in 1710), it cannot be commercially exploited, and so cannot therefore be of benefit to the public. What they would discard to the ‘public domain’ thus becomes a refuse heap full of expired and decomposing cultural detritus, picked over only by desperate scavengers and hardy anthropologists.

The ‘public domain as cultural midden’ is a corruption of meaning by corrupt entities borne of corrupt privileges, both spawned by corrupt legislators in the pockets of the unscrupulously wealthy and powerful.

All published works are in the public domain.

Those members of the public who would enjoy their natural right to copy, their cultural liberty to share and build upon their own culture, should do so – irrespective of copyright, irrespective of being pejoratively labelled as pirates. Mankind’s culture belongs to mankind, not immortal corporations. Are you a human being or a corporate slave?

We will help young people to understand intellectual property (IP), both as buyers and as potential producers – for instance when they upload a work of their own to the internet – as a seamless part of their cultural education.
From: Creative Britain – New Talents for the New Economy – 2/08

Jon Newton of P2PNet brings my attention to a paper by Jessica A. Wood, The Darknet: A Digital Copyright Revolution, in which she notes that we are in the midst of a digital revolution – or as I’d put it, a veritable civil cyberwar between the aristocratically privileged corporations and the digital natives who would escape their iniquitous yokes of copyright and patent, to assert the restoration of their cultural liberty.

Thus the Darknet is not a den of delinquent thieves, but a community of the culturally liberated. While such liberty is outlawed they will remain outside the law, freely copying, freely creating unauthorised derivatives. The belief that such outlaws should suffer million dollar fines for sharing or remixing music is astonishing not so much in terms of monetary magnitude, but in that so many supposedly good lawyers indignantly affirm the righteousness of their persecution of the culturally self-emancipated – as if the bigger the fine the more right it must be. We are thus not quibbling over the amount, but whether it is right to fine someone even a penny for acts that prior to the 18th century enactment of copyright would have been embraced and cherished as part and parcel of folksong, folk music and mankind’s primordial liberty and necessity to engage in cultural exchange.

The Darknet is a cultural refuge from the instrument of injustice that is the privilege of copyright.

Understanding that the technological refuge of a ‘Darknet’ is as amenable to suppression as rumour or gossip among an insurgent populace is to recognise nature and the individual’s natural right to free speech and cultural liberty. It should not be mistaken as thieves being briefly in possession of superior technology to the state.

The Darknet does not signify defeat for a good law. It reveals that the privilege of copyright was bad law the moment lobbyists for the press convinced legislators to enact a statutory monopoly for their commercial enrichment (not insignificantly beholding them to the magnanimous state) – and on whatever pretext the people would find plausible.

No matter. The tide of nature returns and King Canute can no longer pretend dominion.

However, we have three centuries of copyright indoctrination to deprogram ourselves of, and unlike today’s young file-sharing delinquents, lawyers are up to their necks in it. So, it’s a great achievement for someone such as Jessica Wood to allow the logic of the natural world in front of her to overcome the dogma of the industry and its devout faith that music must forever remain non-copyable, unshareable, culturally untouchable, sterile and perpetually protected property of the privileged.

Even so, in her article I linked to above she is still using much of the publishing industry terminology such as ‘content’ which makes her ability to escape its clutches an even more surprising achievement.

She also falls for one of the more platitudinous pretexts for copyright. It only protects democracy in the sense that it provides the state with a self-regulating press and one beholden to quell sedition. The press became powerful as an effective oligopoly (and threat to the state) and that enabled it to lobby for the monopolies that made its commerce so much simpler and more lucrative (at the expense of liberty).

As to the technology underlying the ‘Darknet’, she appears to waver as to whether distributed systems are more efficient/economic mechanisms for diffusing information than centralised systems (see [24]), but that’s a forgivable wavering. They are fundamentally more efficient in all respects. Their only shortcoming is in being so much more difficult to understand and develop than centralised or part-centralised systems. Their designs and implementations thus end up being influenced and compromised by antagonistic legislation and a lack of resources.

The best thing of all is that even without her recognition of the difference between intellectual work (expensive) and copies (inexpensive) (caused in large part by her conflation of the two – as evinced by the nefarious concept of ‘content’), she still ends up correctly concluding that neither monopoly nor tax represent ‘solutions’. Indeed she concludes that copyright should be abolished as causing more harm than good (at least in the digital domain). I suggest she might also reconsider whether copyright was ever a ‘solution’, except to 18th century printers’ commercial interest. The pretext of it being in the public benefit is a sop to the public, for the public certainly weren’t crying out to donate their cultural liberty to the press.

So, Jessica recognises that far from promoting creativity and cultural exchange, copyright actually attempts the opposite, that it is man’s instinctive need to share and build upon his culture that incentivises extreme technological measures to achieve it, overcoming ever more draconian legislation and futile obfuscations such as DRM (also legislatively protected). How much better then to abolish copyright (saying goodbye to fat and wealthy publishing cartels) and allow the people to take over the task of free cultural exchange, dissemination and promotion…

And this is where Jessica appeared to peter out.

She reaches the unsatisfying conclusion that despite evident demand we are looking at a future where people will no longer pay for content. Content producers will have to sell something else, she suggests.

And that’s because she still has some residual brain damage.

The brain damage is (as I pointed out earlier) caused by her adoption and use of ‘content’ in her thinking – the conflation of intellectual work and copies.

She should take a look at the free software industry to help understand that when you neutralise copyright, ‘content’ decomposes back into intellectual work and copies. Once unbound, the copies are sold independently of the intellectual work, and with a free market in both, the copies are so cheap they’re given away for nothing whereas the intellectual work of the software is so expensive that coders are still paid to produce it. Though it must be said, many coders contribute their labour altruistically, especially to works with primarily community/public benefit. That doesn’t devalue their labour though, and so it doesn’t bring down the market price for software development services. The copies might cost nothing to make, but that doesn’t mean you can pay coders peanuts to develop the software you want developed. Intellectual work remains expensive.

Jessica should thus realise that the future without copyright is a future without the concept of content, but not without culture. Given there are no producers and vendors of containers at monopoly protected prices, there is no market for content nor containers/copies. Without copyright people will not pay for copies (well, not digital ones anyway).

The market for copies has ended – along with the market for content with which to fill them.

However, the market for intellectual work continues unabated.

And this is precisely where Jessica should focus next – the exchange of intellectual work for the money of those who want it produced. Copies are free. Let’s get over that. The only ones interested in selling the manufacture and distribution of copies are going the way of the dinosaur (made redundant by distributed systems and the instantaneous diffusion mechanism it is The Internet’s destiny to become). But the work that people want done, now that always has exchangeable value. Whether it’s a paragraph to put on a shampoo bottle or a three hour long movie, where there’s demand and supply there’s money and production. To say that without a monopoly for publishers no movies will be produced is a failure of imagination. If millions of people want a movie produced they will stump up millions of dollars.

And today the refrain is always “But if people can get it for nothing they won’t even pay a dollar”. And then I say “But we’ve already agreed that they can’t get it for nothing because if the producers don’t get paid they won’t produce it”.

Copyright causes this brain damage.

I daresay a similar conceptual stumbling block faced the inventor of the jukebox when he tried to convince people it would make money. “But, why will anyone put any money in it when everyone can hear it play for nothing?”

The people interested in the production of intellectual work pay for it to be produced. That the public are consequently at liberty to share and enjoy the product does not prevent this exchange from happening. Only copyright conditions people to believe that if anyone receives value from an intellectual work without paying for it that they are a thief. The fundamental economic principle is that you pay for labour. You do not charge for value extracted; you do not suspend liberty (copyright) and charge for its restoration (license).

Anyway, that’s the area I hope Jessica will explore next.

For what she has achieved so far, I can at least say “Well done Jessica! Great paper. May you and your words be found credible by those who need their eyes opened to the nakedness of the Emperor’s corruption.”