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The Confusion Of Rights · Wednesday August 08, 2007 by Crosbie Fitch

Luis Villa is losing sight of rights and people, for licences and users

It’s not surprising he finds the coherence of a rights based understanding unpalatable when it is at odds with the confusion caused by the privilege basis of a copyright licence (which lawyers are egregiously taught constitute authorial rights).

What would I say to Luis to try to help him understand where the solution to his confusion lies?

Firstly, don’t forget “All men are created equal”.

Secondly, human beings have rights.

Therefore all human beings have the same rights.
There aren’t different rights for different classes of people, e.g. users vs developers.

Commercial bias will however, attempt to distort privileges into rights to lend them extra (unwarranted) gravitas. Do not be confused by the semantic abuse of the word ‘right’ when ‘privilege’ should actually be used.

You will come unstuck in your “freedom I’m aggressively interested in working towards” if you fail to consider that ‘freedom’ is not actually a right. What is a right, is not to have one’s freedom suspended (by anything other than others’ rights).

So the next step is to discover what are the rights that constrain human freedom.

  • The human right to life.
  • The human right to privacy.
  • The human right to truth.
  • The human right to liberty – which is actually one’s right not to have one’s freedom constrained except by the above.

If you get too obsessed with freedom, you will trample over people’s rights because you’ll fail to notice that they legitimately constrain freedom.

“What’s this barbed wire doing here?! Copyright? Flip that. Knock it down lads!”

“What’s this fence doing here?! Patent? Flip that. Knock it down lads!”

“What’s this granite wall doing here?! Privacy? Flip that. Knock it down lads!”

Oops.

Copyright and patent are privileges that suspend the public’s liberty in order to create commercially lucrative advantages for publishers and manufacturers. They should indeed be knocked down.

However, privacy is a right. Of course it is a constraint upon the public’s freedom. But then that’s because each member of the public has a right to their own privacy, that trumps the freedom of any other member of the public to invade it.

It may appear that privacy’s constraint upon your freedom is as iniquitous as the constraint of copyright that pretends private ownership of public works, but this is because you are simply rebelling against constraint per se, instead of unethical constraint.

It’s not surprising to conflate privacy with copyright, because copyright has itself been conflated with privacy by those IP maximalists who commercially benefit from this conflation and are jealous to preserve and consolidate it. This further reveals the corruption of language the legal profession has been persuaded to adopt to term their commercial paymasters’ privileges as rights in order to give them a veneer of legitimacy.

You would not be the first to mistake privacy as an unnatural and antisocial construct, but it’s been with us for eons compared to the centuries of patent and copyright. I think you’ll find the latter two quite a big enough challenge to your aggressive pursuit of freedom.



 

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