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The Copyright Bubble · Monday January 11, 2010 by Crosbie Fitch

Free software engineers have been one of the largest sectors (in the industry of intellectual work) to grok the iniquity of the 18th century privileges of copyright and patent a few decades ago (and contrive a partial remedy), but every day more and more geeks are ‘getting it’. More and more people are realising that something is rotten in the state of Denmark, realising that an unnatural monopoly that criminalises the cultural and technological exchange that has come naturally to people for aeons, indeed has been critical for mankind’s cultural and technological development, cannot be as good as people have been brought up to believe.

Here’s a recent “Copyright is our liberty!” qua ‘Soylent Green is People!’ revelation from a commenter on Slashdot (Hat tip p2pnet):

The Copyright Bubble

by girlintraining on 17:29 09 January 2010 (#30708172)

I’ve posted most of this before on slashdot; This is just a cleanup of previous posts — it has details of why the ACTA is secret.

A Private War

I used to read stuff like this and get upset. But then I realized that my entire generation knows it’s baloney. They can’t explain it intellectually. They have no real understanding of the subtleties of the law, or arguments about artists’ rights or any of that. All they really understand is there is are large corporations charging private citizens tens, if not hundreds of thousands of dollars, for downloading a few songs here and there. And it’s intuitively obvious that it can’t possibly be worth that.

An entire generation has disregarded copyright law. It doesn’t matter whether copyright is useful or not anymore. They could release attack dogs and black helicopters and it wouldn’t really change people’s attitudes. It won’t matter how many websites they shut down or how many lives they ruin, they’ve already lost the culture war because they pushed too hard and alienated people wholesale. The only thing these corporations can do now is shift the costs to the government and other corporations under color of law in a desperate bid for relevance. And that’s exactly what they’re doing.

What does this mean for the average person? It means that we google and float around to an ever-changing landscape of sites. We communicate by word of mouth via e-mail, instant messaging, and social networking sites where the latest fix of free movies, music, and games are. If you don’t make enough money to participate in the artificial marketplace of entertainment goods — you don’t exclude yourself from it, you go to the grey market instead. All the technological, legal, and philosophical barriers in the world amount to nothing. There is a small core of people that understand the implications of what these interests are doing and continually search for ways to liberate their goods and services for “sale” on the grey market. It is (economically and politically) identical to the Prohibition except that instead of smuggling liquor we are smuggling digital files.

Billions have been spent combating a singularily simple idea that was spawned thirty years ago by a bunch of socially-inept disaffected teenagers working out of their garages: Information wants to be free. Except information has no wants — it’s the people who want to be free. And while we can change attitudes about smoking with aggressive media campaigns, or convince them to cast their votes for a certain candidate, selling people on goods and services they don’t really need, what we cannot change is the foundations upon which a generation has built a new society out of.

Culture Connection

Just as we have physical connections to each other, we now have digital connections to one another. These connections actively resist attempts at control because it impedes the development and nature of the relationships we have with one another. People naturally seek the methods which give them the greatest freedom to express themselves to each other. That is a force of nature (ours, specifically) that has evolved out of our interconnectedness. Copyright law has been twisted to serve as a bulwark against the logical result of increasing social interconnectedness between people and computers: Access an ever-increasing amount of humanity’s history, knowledge, and culture. Ultimately, this is a battle they cannot win — they can only delay, building dams and locks to stem the tide, but they will fail. It’s how, when, and where it fails that will decide the fate of economies worldwide.

Every law advantages one group while disadvantaging another. And every engine, be it physical or social, functions because an energy imbalance exists and by moving energy from one potential to another, we can skim some off to do useful work. Laws work the same way — by creating artificial differences between groups of people, society produces goods and services. This is why we will always have new Prohibitions. It’s not a comfortable or politically correct thing to admit, that for societies to function there must necessarily be inequality between people. It is nonetheless true.

This is not a reason to give up hope or be cynical! We are in the middle of a social revolution that has few outward signs. Unlike generations past, the revolution that is happening now exists in fragmentary communications by a collectivistic movement that lacks any real core. It has been created by an unspoken understanding between its participants. That is to say, the participants of the digital community to varying degrees develop the same coping mechanisms to frame their understanding of this environment. These coping mechanisms develop into ideas and beliefs that we then form the basis of our interactions with other members. Put another way, these coping strategies that we interpose between ourselves and our environment form the basis of culture. The interesting part is, this change occurred without any indoctrination or central leadership to accomplish. Mere exposure to the environment alone seems to predispose people to a certain kind of thinking that cuts across barriers of country, culture, sex, and race.

There are no real leaders for the digital culture, yet the culture is there. This is unprecidented. There are very, very few social movements that organize around principals instead of individuals who exemplify those ideals. Whether you live in Iran or America, Africa or Europe, the same values systems are spontaniously developing in reaction to exposure to the digital environment. And while the state of the art has advanced at an incredible rate, our methods of understanding and interacting within the new social spaces created by that aren’t changing that much. It’s a stable environment evolving at rate sufficiently slow to allow culture to form.

That, in and of itself, is amazing. Forget copyright for a moment and consider all the other social advances that are taking place because of our digital interconnectedness — and then realize that there are only a very few friction points in this revolution! That is also unprecidented in modern history.

The Bubble

Copyright won’t end anytime soon, but I’m suggesting we look at the fundamentals here: it is an artificial construct within the digital environment. It’s something we built extraneous to it, and in fact is antagonistic to it. The exchange of information is fundamental to the existance of the internet. Copyright is not. Copyright is an institution, like marriage, the church, the government, etc. Like those things, it has a maintenance cost. It is a coping mechanism. That’s not a judgement on its sustainability nor its justification for existance (or lack thereof).

Copyright is an institution and like all social institutions remain in existance only for as long as its members continue to support it. There is a substantial and growing number of digital identities (people, organizations, projects, etc.) that exist outside of that institution. Why? Because information is very, very cheap to replicate. Production of that information however can vary in cost. Everybody agrees that there must be some compensatory mechanism, however artificial, to reimburse people for the effort invested in the production of the goods and services that copyright protects. If there is no protection at all, many staples of modern life cease to exist. This is the loci of why copyright exists.

The cost to society now outweighs the benefits and we exist within a market bubble right now: A copyright bubble. Large corporations and governments alike have bought into it and driven up its cost. Like any market-driven force however, it will eventually return to equilibrium. We had the dot com bubble, and the housing bubble, but that’s nothing compared to what’s going on right now — we lost billions when that one burst. We stand to lose trillions when this one does. And, ironically, it will be burst by the very forces that businesses are embracing right now — labor capital in the third world.

Which is exactly why, right now, governments around the world are drafting a copyright treaty between themselves in secret. They know that as soon as the lesser-developed countries have come forward a bit more infrastructurally, they’ll be at a point where they can leverage a free flow of history, ideas, and information to dramatically improve their economies. Just as plans for the machinery that powered the industrial revolution was witheld from countries that didn’t have it, so too have the tools to begin the information revolution been witheld.

Let’s face it — less developed countries are not going to pay licensing costs and fork over the money circulating in their economy back to us: They’re going to pour it back into modernization of their own economies. The only way they can do that is by asserting sovereignty and independence from the global copyright framework being developed. That’s why there’s such a push right now to lock them out if they don’t join in the global copyright racket. If this effort fails, the bubble will burst and trillions of dollars will drain out of the economies of the western world like someone pulled the plug out of the bathtub, because the marketplace will be much, much bigger. That’s why if you ask for copies of the Anti-Counterfeiting Trade Agreement, the government will tell you it’s unavailable for reasons of national security. But you don’t need to have the text to know what it intends to do.

The chinese are already producing very cheap material goods. What do you think’s going to happen when they start producing very cheap services as well? Nobody’s going to pay $400 for an operating system; Not when the Chinese have their own that sells for $5 each on a DVD. They have more honor students than we have students — and each will work for dollars a day.

Steve R. said 3539 days ago :

Very eloquent narrative.

You wrote on “Against Monopoly” as an illustrative comment that: “The problem with trademark is that holders overreach its purpose to prevent confusion and deceit, and attempt to claim exclusive use of their mark in all contexts.” While the narrative above is not limited to trademark; trademark is only one of many examples were content creators have aggrandized the use so-called intellectual property laws to claim exclusive control even to the point of restricting post-sale use.

Furthermore, the “proof” for infringement seems to increasingly short circuit the legal process itself and the penalty for “infringement” is becoming ever more onerous. A legal system that works only to benefit one segment of society will eventually implode.

Crosbie Fitch said 3539 days ago :

Copyright works only to benefit immortal corporations (evidenced by the immortal span of copyright).

What’s more, corporations aren’t even a segment of society, they’re a legally created golem, a charismatic psychopath with the creator’s mission to ‘profit at all costs’. Human directors are actually prosecuted if they deviate from this mission. So, there’s no point looking to any lesser staff to make the organisation more socially considerate or humane. Any appearance of such humanity is simply a PR strategy – and it fools far too many inside and out.

So it’s not surprising that corporations collaborate in common pursuit of ever greater powers to obtain ever greater profits. That includes overreaching trademark, copyright, patent, or anything else that comprises a grant of unnatural power, especially over people. People are cattle (consumers) to be exploited by corporations.

The solution is obvious. Abolish unnatural privileges and pull the plug on corporate personhood. Change corporations into associations of individuals with collective responsibility for whatever objective they agree to pursue.

Unfortunately, it’s going to require a lot more social depredation on the part of corporations before people are roused into realising such a solution is needed.

Corporate totalitarianism here we come.

Dear Illiberal Undemocrats · Friday March 05, 2010 by Crosbie Fitch

A vendor selling a copy or imitation that is misrepresented as the genuine article is committing a falsehood, a deceit. This has been recognised as something that should be prohibited since time immemorial.

However, a vendor selling a copy or imitation that is honestly represented as a copy, derivative, or imitation of another work is committing no falsehood or deceit. This has also been recognised as something perfectly natural and to be embraced since time immemorial. Man has progressed precisely through a process of sharing knowledge, copying songs, stories, tools and techniques and improving them.

The unnatural law that was introduced in 1710 by Queen Anne was the privilege of a reproduction monopoly granted to printers of literary works, and this at a stroke suspended the public’s right to make copies – a natural right that they had enjoyed as part of their natural liberty since time immemorial.

So, what happens when the public find themselves in possession of ever more powerful reproduction technology?

  • The people are in fundamental conflict with those in possession of the privilege that suspends their liberty.

To say, because the 18th century privilege is still law three centuries later, that it is therefore the law that is right and the people who are in the wrong is to blind yourself to the reality of the conflict, to refuse to recognise the nature of people and information.

The Digital Economy Bill is simply yet another attempt to provide the privileged with additional legal sanctions, to effectively give King Canute yet more extreme powers to hold back the incorrigibly disobedient tide.

The Internet is essentially a system for instantaneously diffusing (distributing & reproducing) digital, intellectual works. A transferable 18th century privilege that requires that no-one distributes or reproduces an intellectual work without permission from the holder of that privilege is at best an anachronism, and at worst an unethical statute that should never have been enacted.

This writing is on the wall. If you hesitate to copy it and freely distribute it among your peers you are not dutifully respecting the privilege and law that suspends your liberty to do so, but committing yourself into ignorance and cultural suicide.

Alex Bowles said 3504 days ago :

About this:

The unnatural law that was introduced in 1710 by Queen Anne was the privilege of a reproduction monopoly granted to printers of literary works, and this at a stroke suspended the public’s right to make copies – a natural right that they had enjoyed as part of their natural liberty since time immemorial.

Are you sure? I believe that the law was actually a considerable liberalization, in that prior to its passage, the freedom to print anything was strictly limited to royally chartered guilds, the output of which was subject to review by the Church.

In other words, even authors didn’t have the right to print their own works. The act of printing itself was monopolized.

In 1709/10, this changed. The right to print (not copy, mind you, but to simply print) was vested in authors, who could subsequently name their own terms when negotiation with the guilds – which were barred from printing new material (i.e. less than 14 years old) without the author’s permission.

I don’t think this changes the thrust of you argument, but it’s important to understand how the law evolved of you want to see in continue its slow but ancient trajectory towards freedom.

Crosbie Fitch said 3504 days ago :

Yes, prior to the Statute of Anne, there were de facto monopolies, and various edicts either permitting or constraining printing (and not just in England). However, 1710 marks the point at which the suspension of the individual’s right to copy published works was permanently established, the final nail hammered in, reserving such copying as the transferable privilege of a copyright holder.

I do not intend to imply that prior to 1710 people were blissfully engaging in free cultural intercourse. Far from it.

Everyone should read up on the history of copyright and all that precedes it to make up their own mind as to whether we are on a trajectory toward freedom or away from it.

Alex Bowles said 3504 days ago :

Um, I think there may be another historical error here – specifically, your suggestion that copyrights were transferable beginning in 1710.

In fact, copyrights were not considered property – at least at the outset. They did not acquire property’s defining characteristic (legally transferable title) until the latter half of the 19th century. This development followed a century of cultural and economic development in which the publishing trade became enormously powerful. Only at this point did the notion of privilege as a function of property value become a matter of serious commercial consideration.

After all, copyright (really, print-right) was initially a mechanism for censorship. It was exercised by the church and crown, and existed not to govern the flow of commerce, but the flow of ideas themselves. Only after this restriction was relaxed could the commercial side of printing really take off. And again, it took more than a century before it was developed enough to demand its own modification to the law (specifically, the transformation of author’s rights into property rights).

Crosbie Fitch said 3504 days ago :

Alex, this is not really the place to argue the minutiae of copyright’s complex history. My point remains that copyright IS a transferable privilege and was ESTABLISHED by the Statute of Anne in the 18th century. It is not inaccurate to describe it as a transferable 18th century privilege.

That various aspects of copyright have changed over the years doesn’t change that essential point. One can also quibble over the nuances and meaning of assignable vs transferable, that the latter term may not have appeared until later acts, but I don’t see that linguistic distinction as important as the one between right qua privilege (legally granted right) and right qua right (natural right).

When you say ‘another historical error’, what was the other one? Do you still dispute the accuracy of the first passage of mine that you quoted?

Here’s a more expansive description of copyright as enacted by the Statute of Anne – I embolden the part about assignablility, that it was not usually the authors who remained holders of the privilege:

During the course of the seventeenth century, copyright became intertwined with politics and censorship. The Company of Stationers, which received its legitimacy from a royal charter, rode through the turmoil of the civil war and restitution of the crown, but the previous arrangements to bring order to the trade slowly changed into arrangements to control the press. The Licensing Act that governed the book trade expired in 1692 and the House of Commons refused to renew it. There were many reasons, but one of them was the belief that the Stationers had abused their monopoly.

Chaos ensued. The book trade went from a tightly regulated enterprise to a wide-open free-for-all. The stationers petitioned Parliament for relief, and it finally came in 1709 with the Statute of Anne. The outcome wasn’t exactly what the stationers wanted.

The Statute of Anne was an attempt to restore order to the book trade and, at the same time, to address perceived abuses by the stationers. It provided two kinds of copyright. For past works, it extended the stationer’s copyright for a period of 21 years. For future works, it gave the author (or any assignee!) the exclusive right to print the work for 14 years, with the stipulation that the right could be extended by an author for another 14 years. There are two important points here. First, the statute allowed people outside the Stationer’s Company to hold the copyright (although it was the assignees rather than the authors who normally held it). Second, the statute attempted to break the monopoly of the stationers by limiting the term of copyright — a radical change for the stationers, who until then had enjoyed perpetual copyright.

From “Copyright and Authors” by John Ewing

Alex Bowles said 3502 days ago :

Really enjoyed Ewing’s essay – thanks for the link.

However, I’m still surprised to see you glossing over what seem (to me at least) to be important details. After all, one of the things I’ve always admired about you is your unwillingness to be anything less than absolutely precise. Your systematic differentiation between rights and privileges is a case in point, and an prime example of the clarity that is so conspicuously absent from most copyright discussions.

That’s why I find your equation between assigning rights (sorry, privileges), and selling them outright to be so remarkable. Put simply, these are not the same. A rough analogy can be made in the difference between renting an apartment and buying one. Sure, you can say the apartment you rent is ‘your’ home, but of course, it isn’t really. Same thing goes for a publisher that has simply been assigned a publication right. Even if the assignment is perpetual, this arrangement can still introduce important limits (equivalent to rules against sub-leasing) that dramatically limit a publisher’s capacity to exploit the work.

From their perspective, this is an enormous difference. It may not be apparent to the author, who sees no practical difference between having to assign his copyright and sell it, especially when both transactions come with equivalent terms and result in the same thing (publisher places a bet by risking the costs of distribution / author gets paid something in the process).

However, when you consider what happens on the other side of the table, you’ll find that the ability to formally own, stockpile, combine, and resell these privileges leads to dramatic changes in their behavior of publishing enterprises (to say nothing of their commercial prospects). This shift is especially pronounced when you move beyond books, images, compositions, and other forms of expression that generally stem from solitary authors, and consider expressive forms that are born from collaboration, such as encyclopedias, films, symphonic recordings, mass media broadcasts, and grand architectural plans.

So again, there’s a vital difference between psudeo-property rights (such as the ability to assign, introduced in 1709), and the ability to flat-out sell, which didn’t come into play until England’s Copyright Act 1842 declared that copyrights were personal property in the fullest sense, and thus (and for the first time) capable of bequest. This significant development didn’t ‘go global’ until 1889, when the Berne Convention harmonized the different copyright laws maintained by its signatories so that they all included this definition of copyright as fully transferable property – nearly 200 years after the Statute of Anne.

On a separate note, while I enjoyed Ewing’s essay, I’m worried that his perspective may suffer from being too narrow, leading to a less nuanced view than the circumstances demand. For instance, while he may be correct to note that the Statue of Anne was not passed due to an abiding concern with author’s well being, it did reflect a (well-placed) concern that the unrestricted power of the Stationers had risen to the level of a national security threat. Ewing made no mention of this larger concern and I think his argument suffers for it.

In truth, matters were far less one-sided. After all, by this point the practical value of the scientific revolution had becoming abundantly clear – particularly with regard to astronomy, navigation, and the resulting conquest, accumulation of wealth, and ability to employ armies.

Even if the Crown didn’t care about individual authors, they recognized that a culture hostile to free inquiry and the liberal circulation of ideas would align them with historic enemies like Spain and Portugal (both in serious decline) and at a disadvantage in relation to powers like France and Holland (both ascendent, scientifically savvy, leery of domination by clerics, with the latter home of the Dutch East India Company).

So yes, the Stationers may have clung to some of their power through all-too-familiar means to do so (“pity the artist!”). And yes, we’re still living with some of the myths they managed to invent. But on the other side of the coin, they were fighting a losing battle against a new kind of progress (scientific) which has also continued unabated, and which, 300 years later, is having the last laugh by decoupling matter and media for good.

It’s a total shitshow, as you recognize better than most. And there’s a lot of deliberate obfuscation as a result – which is why I think it’s unwise to gloss over the exact legal meaning of some of the debate’s most central terms. If the object of the game is to disentangle the myths that persist, then it seem important to note that copyright as property – and not simply assignable privilege – is a 19th Century invention.

Crosbie Fitch said 3502 days ago :

Alex, I’m not trying to belittle the difference between assignability and transferability per se. I’m only saying that quibbling about it may be interesting, but it does not invalidate my original article.

I made no claim regarding this aspect of copyright in the original article. It may well be an interesting historical detail, and I encourage readers to read up the history for such details.

You appear to be suggesting that I’ve made two historical errors. I don’t see that I’ve made any, but you may yet convince me otherwise.

Omitting what you regard as essential historical points may be an editorial shortcoming in your view, but I don’t believe this constitutes historical error on my part.

Do you disagree with any of the following:
1) 1709 is the last year in which the individual’s natural right to make copies of published works remains underogated by legislation.
2) Copyright is a privilege enacted in the 18th century, and therefore can be described as an 18th century privilege.
3) Copyright is a transferable privilege and therefore can be described as a transferable 18th century privilege.

My use of ‘transferable’ is not to focus on the precise manner in which copyright is transferable or can be treated as a legal property, nor to imply that no legislative changes have occurred in its transferability/assignability since 1709.

I’m using ‘transferable’ to add weight to my point that natural rights are inalienable whereas privileges aren’t.
The inalienability of a natural right is a matter of natural law, not legislation. Legislation may stipulate that the holder of a privilege may neither assign nor transfer their privilege (as with droit de suite), but that doesn’t make the privilege an inalienable natural right.

Alex Bowles said 3497 days ago :

CF,

I disagree with all three points, though with some moreso than others.

More importantly, I see the general thrust of this argument – that the 1709 law represented a sudden and sweeping suspension of liberty – as very unsound. Far from being the regressive act that this framing suggests, I see it as a fundamentally liberal proposition, and one that paved the way for greater liberalization – even as it introduced elements that grew into barriers to that larger trend.

When it comes to successfully framing present-day issues (i.e. to do so in a way that persuades more people of copyright’s illiberality), it seems to be critically important that the larger trend be represented correctly.

In response to your specific points, consider the following.

1) When saying “1709 is the last year in which the individual’s natural right to make copies of published works remains underogated by legislation.” You make no distinction between mechanical and non-mechanical copies.

With regard to non-mechanical copies (i.e. transcriptions by hand) I don’t believe the law said anything one way or the other. After all, the process is so labor intensive as to be irrelevant to the act of publishing in any conventional sense of the word.

And with regard to printed copies, the public’s right had been well and truly derogated long before 1709. That was the whole point of the printing guilds – not simply to extend monopoly powers over specific works, but to monopolize the very act of printing. That is to say, prior to 1709, it was illegal to simply own or operate a free press. Moreover, the law that was superseded in 1709 gave specific authority to members of the Stationers guild to hunt down and destroy presses that were not owned and operated by the guild. To suggest that this environment was one in which “individual’s natural right to make copies” was respected is – frankly, absurd. How can a person be ‘free’ to do something when possessing the means of doing that thing is a crime? That’s like saying you’re free to write what you like – just don’t make any use paper, pencil, or ink.

Of course, the ability of anyone to operate a press – even to publish the King James Bible – was, itself, a major liberalization. Prior to the Reformation, vernacular copies of the Bible had been outlawed, as had – at one point – the freedom to even read the Bible. Forget about physically copying (an inconceivable liberty) – simply going to existing sources to create a direct mental impression instead of relying on the interpretations of clergy was considered a no-go.

So sure, the ‘right’ to copy may have existed (indeed, it did, and was well exercised in any number of matters, from agriculture to military strategies). However, like any other human right now widely accepted today, it wasn’t recognized by the prevailing authorities – at least not with regard to printed materials. Indeed, the right to copy anything may not have been regarded as a right at all, and was instead considered (if considered at all) as something reflexive, like the ‘right’ to eat, sleep, or breathe. And again, acceptance of this reflexive freedom had never been extended to books.

So with regard to point 2, no – copyright – in the absolute sense – was not enacted in the 18th Century. Yes, the first example of a law that reflects aspects of our own may have been introduced in the 18th Century (which is why this is called the first modern copyright law), but copyright taken literally – which is to say, the right to make literary copies – was firmly restricted long before 1709.

The importance of the 1709 law (in my view, at least) is that it separated the act of making copies in general from the act of making particular copies. By severely limiting the power of the state to limit the production of copies in general, the market for the making of copies expanded dramatically. The fact that more individuals took advantage of the law’s monopoly protection did not mean that the scope of copyright law changed dramatically. After all, it only applied to books (which has always been subject to limitations) and it only applied for 14 years (a major reduction from the perpetual monopolies that existed prior t 1709).

What we now see at the major expansions didn’t take place until the next century, when the duration of the law’s protection was amplified, along with the number of expressive forms that it covered.

Your larger point, that no true right is transferable – is well taken. Once you adopt the basic view that the rights of man are intrinsic and inalienable, you understand that the definition of a right is something that cannot be granted by law – period. It can simply be recognized and protected. Obviously, something transferable fails this test immediately.

What I find interesting is that the original 1709 law was closer to this original sense of right, as opposed to its more modern incarnation as a simple privilege. Throughout the 18th Century, hiring a printer seems to have been more like hiring an accountant or a lawyer. That it to say, they were authorized to exercise your rights on your behalf, but at no point were they allowed to operate independently, or contrary to your interests.

But once copyright became fully transferable (as opposed to merely assignable), this limited relation between author and agent evaporated. Once a right has been given title and sold off, the author had no further claim whatsoever, and the owner of the right had no obligation outside of the agreement to pay. Of course, some countries accepted the idea of the author’s moral right – allowing them to renounce any work that was altered insufferably – but that didn’t become a universal convention. And again – all this happened in the 19th Century. Even if the seeds of this development were planted a century prior, I think it’s misleading to suggest that they attained their present form immediately, or that the authors of this law actively condoned an interpretation of their act that did not, in fact, develop for another 140 years.

So put simply, Queen Anne predated the idea of copyright as titled and fully transferable property by a long time. While the development of copyright as property may represent a fundamental injustice, it’s unfair to lay it at the feet of people who were dead well before its introduction.

The most important point of all is that recognizing the public’s right to copy is actually a very new development. Because is has – for economic reasons – been considered a privileged (in that very few were privileged enough to afford a press), we’ve not considered whether the act itself is a fundamental right.

Returning – again – to the notion of rights as intrinsic qualities of being human that can’t be granted by law, and can only be recognized by law, it’s only now – when the means to copy and distribute have become so advanced that these acts seem like walking or breathing – do we finally start to consider that, perhaps, we’ve been wrong to ever think of them as privileges. Only now is it dawning on many people that this has always been a fundamental right. For those who measure the progress of history by the extent to which governments first recognize, then accept, and finally protect these rights, the ability to use the internet in the most natural fashion becomes the vanguard of legal development.

My suspicion is that this is truly uncharted territory. Even if the 1709 law did establish the trajectory of current thinking, its grant of privileged hardly overturned a robust and well-established concept of right. To the contrary, recognition of the natural right to copy literary works was so anemic that only now – 300 years later – is is even beginning to be discussed seriously.

To that end, I think the most important step is the reflexive framing of copyright law as a matter of privilege, and not a true right – which cannot be transferred, and can only be limited in response to a specific criminal charge, and the due process of trial in an open court.

Crosbie Fitch said 3478 days ago :

You make many good points Alex, and I would have been more disposed to discuss them had they not been made in support of your claims of two historical errors on my part (of which I remain unconvinced).

I continue to see the three points I posed in my previous comment as correct. That you cannot agree with them helps explain your position that I have made historical errors.

Anyway, here’s another recent post you may be interested in concerning the Statute of Anne and the significance of 1709/10 in copyright’s history: Blawg Review #258

“Obviously the Statute of Anne, having been put in force 300 years ago, almost to this day, is no longer good law in any jurisdiction. In fact, almost immediately after it was enacted it began to be transformed. But it stands as a turning point in the history of English law-based systems by being the first true instance of copyright law as we’ve come to know it.”

Concluding Copyright is Essential · Monday May 17, 2010 by Crosbie Fitch

Unlike many, Bill Rosenblatt has graciously tolerated my engagement with him in a conversation concerning copyright. At the time of writing, his and my comments still appear beneath his Copyright and Technology blog article entitled “William Patry’s War on Copyright”.

“Rosebud...” says News International · Tuesday May 25, 2010 by Crosbie Fitch

News International retreats from the public, disagreeing with the idea that mere readers should be allowed, let alone encouraged to freely read and quote from newspapers, e.g. as I do now from “The Times paywall: An end to sharing” by Rory Cellan-Jones.

A great experiment is about to get under way, and it will tell us much about the future of journalism and the willingness of readers to pay for it. In Wapping last night, News International showed off the new websites for The Times and Sunday Times which have opened to the public this morning. Four weeks from now, a paywall will go up in front of the sites and, by News international’s own calculation, more than 90% of their audience will melt away.

This is of course nothing to do with readers’ willingness to pay journalists for their journalism, but the ability for newspapers to charge each reader for reading it, and prevent anyone who hasn’t paid from doing so. When you can’t sell copies, then selling access seems very similar – if you think like a newspaper, that is.

Rory later reveals:

I asked Danny Finkelstein whether it bothered him that from now on none of his journalism would “go viral”, with the risk that he’d be left invisible on the sidelines as the online debate raged through news sites without paywalls. “No,” he insisted,“I want my employer to be paid for my intellectual property.”

That is Stockholm Syndrome. I would think most journalists care more about being paid for their intellectual work than enabling their employers to charge readers for copies of it at monopoly protected prices – and failing that, to charge readers for access.

If news can be freely distributed to the public, the only thing left to pay for is the journalism – and the readers who want more can pay the journalists directly – to write.

See earlier conversations, with:

Drafting Definitions for Cultural Liberty · Tuesday June 22, 2010 by Crosbie Fitch

Although I’m still focussed on 1p2U.com, some time later this year I hope to set up the website culturalliberty.org – a site dedicated to the restoration of everyone’s cultural liberty, especially from its constraint by anachronistic privileges such as copyright and patent (which should have been abolished along with slavery).

There’ll be a wiki upon which I hope ethical law can be developed (for legislative protection of all individuals’ natural rights concerning the possession, production and communication of information and intellectual works).

So, in getting started, I thought I’d sketch out some definitions, i.e. without explanations or examples (which can come later). Suffice it to say, these definitions will be tweaked.

Definitions

  1. Individuals are human beings, a priori equal.
  2. Human Rights, the rights of all individuals, are naturally: life, privacy, truth, liberty.
  3. Right always and exclusively refers to right in the natural sense, implicitly qualified as natural right.
  4. Life is the naturally optimal functioning of an individual human being, the preservation of its health and integrity, the necessary maintenance and protection of its body’s boundaries, sustenance and environment, and the perpetuation of its operating period.
  5. Privacy describes the individual’s natural ability to exclude others from particular objects, information, and spaces that they possess, occupy, or are otherwise able to physically defend or secure. Privacy may be enjoyed jointly as well as singly.
  6. The right to Truth is against interference with, or impairment of, anyone’s natural ability to perceive, pursue or apprehend it, e.g. against fraud or misrepresentation.
  7. Liberty includes an individual’s freedom of movement, speech, or senses, in their natural habitat among their fellows, and entails that these freedoms remain without physical constraint – until the individual has been found in violation of anyone’s rights, and only then to the least extent possible and necessary for their rehabilitation and the protection of others’ rights.
  8. Freedom is the natural, unconstrained condition of the individual, i.e. one not subject to government. It is delimited by all individuals’ natural power and interest to protect their natural rights – who may collectively empower a government.
  9. Rights are inalienable. That means the individual cannot be parted from them, neither by themselves nor by their government.
  10. Rights take precedence: Privacy must cede to Life (invasion may be warranted in the protection of life). Truth must cede to Privacy (the public’s interest does not outweigh the individual’s interest in excluding it). Liberty must cede to Truth (where its impairment through deceit or fraud risks harm or social disharmony). In this way each right delimits the next, and all rights delimit freedom.
  11. Rights are imbued by nature in all individuals equally. They are not conditional, e.g. on gender, skin colour, religion, payment of taxes, nor good behaviour. If rights are not protected for the pariahs of society they are not protected for the paragons. If a government exempts terrorists from its protection it terrorises its own citizens as a consequence.
  12. A harmonious society is epiphenomenal. It is that which results when a government carefully protects the rights of the citizens that empower it. Their protection is primary – not secondary to protection of society nor to the existence of the government they create, and thus rights should not be derogated in pursuit of social harmony, benefit to society, ‘the encouragement of learning’, ‘progress’, ‘the common good’, nor upon a wish by the people to engage in a ‘social contract’ to surrender, waive or relax their rights to that end, whether in whole or part.
  13. Privileges (legislatively enacted analogues of rights) are always referred to as ‘privileges’, not as some call them: ‘legally granted rights’, ‘legal rights’ or simply ‘rights’. Privileges are instruments of injustice and not to be found in an egalitarian society nor any legislature primarily concerned with the protection of individuals’ natural rights.
  14. A Contract is an equitable agreement (voluntary) between two individuals concerning the conditioned exchange of their property, whether material or intellectual. A contract cannot surrender, abrogate, nor derogate from any individual’s rights – it is not a promise (as would alienate liberty). A government has no power to enforce completion nor penalise incompletion, only to arbitrate in any dispute as to equity or agreeability, and to mandate a remedy to that end as far as is practicable.
  15. A government is created and continuously empowered by its individual citizens, and those individuals are the only source of its power, which may be removed or redirected by them.
  16. A government may be empowered to collect taxes to provide and care for its citizens’ common interest: the protection of their rights, their safety, health, and social well being, e.g. policing, defence, energy, utilities, transport, and communications infrastructure, healthcare, education, environment, etc.
  17. Corporations or any other legally created entity are not individuals nor even comparable let alone equivalent, and being unnatural are not imbued with rights. All such entities should be regulated to ensure their activities and motives are aligned with the common good, i.e. not simply maximisation of share value.

The Corruption of Our 'Public Domain' · Thursday August 05, 2010 by Crosbie Fitch

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

Crosbie Fitch said 3357 days ago :

This article expands upon comments I posted to “Why World War I Recordings Won’t Enter The Public Domain Until 2049” on TechDirt.

NB Those WWI recordings are of course already in the public domain, and have been since they were first published. It is only that they will remain 'protected' by copyright until 2049 - beyond the lifespan of any mortal involved in their production.

Crosbie Fitch said 3357 days ago :

I should also point out the related discussion in the comments to Glyn Moody’s article: “Towards a Commons Taxonomy”.

Aaeru said 2656 days ago :

Excerpt from ‘Sharing and Stealing’, Jessica Littman www

“Thirty years ago, the public domain was far more expansive. In 1974, federal copyright protection was not automatic. To get it, you needed to distribute copies of your work to the public, and the copies needed to be marked with a copyright notice.48 Notice of copyright – the familiar C-in-a-circle, along with the name of the copyright owner and the date the work was first published – secured copyright. Distributing copies without notice caused the work to enter the public domain.49 Indeed, while the copyright system offered authors protection for a limited time as an incentive to encourage them to distribute their works to the public, it also attempted to ensure that most works entered the public domain promptly, so that the public could make unfettered use of them.50 Copyright law was designed to separate works whose authors wanted copyright protection enough to follow a few simple rules for preserving it, from works that would have been created and distributed anyway.51
Thirty years ago, when you saw something you wanted to use or share, the default rule was that you were entitled to do so. Unless the object was marked “do not copy” you were, with some modest exceptions, entitled to assume it was in the public domain, because the absence of a copyright notice ensured that it was in the public domain (even if it hadn’t been before).52 Not only that, but the notice had to be accurate, had to tell you when the copyright was scheduled to expire, and had to tell you to whom you needed to address any request for permission.53 The overwhelming majority of potentially copyrightable works didn’t have this notice and entered the public domain the minute copies were publicly distributed. Of the ones that bore the prescribed copyright notice, only a fraction were registered, and of the fraction that were registered, only 15% were renewed, so for most of the copyright-protected works that had the requisite notice, copyright protection lasted only 28 years.”

Crosbie Fitch said 2656 days ago :

Aaeru, Jessica Littman uses the recent definition of ‘public domain’ as ‘works not protected by copyright’.

The question as to whether a work was or was not protected by copyright was primarily of interest only to publishers. Those individual authors considering the use of a published work in their own publications would either be unaware of the issue or would rely upon their publisher to ‘clear the rights’ for them (assuming it was economic).

So I don’t really agree with Jessica’s portrayal of ‘the public domain’, that people used to understand it as the set of works not protected by copyright. She is examining the past with a heightened sense of copyright awareness peculiar to modern times.

Sin Synopsis · Monday August 09, 2010 by Crosbie Fitch

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.

Essay Writing UK said 3329 days ago :

I do have a question, plagiarism is a venial sin as well. A content was being copy to the legal author but doing rephrasing those words or the content is not a venial sin in the world of “writer” Right?

Sin synopsis – a very well specified that tackles the pattern and form of which property must not be copied.

Crosbie Fitch said 3327 days ago :

Plagiarism is a deceit, the presentation of another’s work as one’s own. So yes, it is morally wrong, unethical. Rephrasing fails to dilute the plagiarism (though it helps hide it).

The wrong is not in making a copy, but in pretending authorship to words and intellectual work not one’s own. Either quote (and copy as much as you wish), ideally with attribution, or comprehend and re-explain, still ideally with attribution of your sources.

There’s nothing deceitful or wrong in paying someone to write an essay per se, e.g. in order to produce and sell copies of it (as long as its authorship is not misrepresented).

However, to pay someone to write an essay, to then claim authorship of that writer’s intellectual work is inherently deceitful, a fraud. Note that the deceit is not committed by the writer of the essay, nor the person who sells that service, but whoever misrepresents its authorship, e.g. a less than scrupulous student with more money than talent who needs to produce an original essay.

Alan Malik said 3323 days ago :

Copyrights and NDA’s are all very good until you cross horns with the Big boys..

In a world where bigger unfortunately means deeper pockets and more expensive lawyers only the burden of proof will suffice. When creating something that you wish to copyright ensure you keep sufficient evidence so that you can prove without doubt that you created it before someone copies it…

Crosbie Fitch said 3323 days ago :

Alan, legal instruments as defence or weapons against ‘the big boys’ are generally worthless to the little guy – unless the little guy expects to be able to find a big boy who’ll be interested in exploiting the little guy’s weapon (in which case, as you suggest, registration, meticulous records and evidence are useful).

Otherwise, rather than hoping to exploit anachronistic privileges (copyright) and unethical pretentions to contract away inalienable liberty (NDAs), little guys are always far better off exploiting word of mouth publicity and promotion through copyleft, and relying upon trust and discretion concerning matters of confidence.

Who wins in court (or out of it) is invariably determined by who has the larger litigation budget. Only in cases where the budgets are of the same magnitude is judicial arbitration likely to be the deciding factor (and worth risking).

Fiercer Privilege Loses to Popular Liberty · Friday December 17, 2010 by Crosbie Fitch

  • People reclaiming their natural liberty renders ineffective the anachronistic privileges that would abridge it to effect monopolies.

When you don’t have a monopoly you have to compete in a free market, and can no longer extort.

A free market doesn’t mean you can’t sell anything, it just means you can’t sell that which people can find far cheaper elsewhere, or even make themselves for nothing. You can still sell music and other intellectual work, you just can’t sell digital copies of it any more.

If you’re a copy manufacturer or record label your business has all but ended.

If you’re a musician you’ve got to wean yourself off of the record label as your customer, and find customers who’ll pay you for your music rather your copyright (so they can sell copies of it at monopoly protected prices).

The artist must rediscover their fans, their true customers.

And please, don’t try selling your fans copies. They can make their own for nothing. You’re not in that business. Your record label was, but you’re not. You’re in the business of making and selling your music – something your fans cannot do, and look to you for.

Invite your fans to book tickets for a studio performance and recording. They don’t attend. Once the work has been done, the studio performance performed, recorded, and produced, you send them files of the digital master in FLAC format. Remember, they’re not buying copies, they’re buying the studio performance and recording thereof. They’ll make their own copies for you and their friends for nothing. It’s free distribution, promotion, etc.

Copyright is defunct. Record labels are defunct. Musicians and their fans are not. So don’t listen to the corporate lackeys who’ll try to persuade you you’re all in the same sinking boat.

Your fans are your greatest customers. Encourage them to copy and share your music. For your own sanity’s sake don’t even think of suing them for doing what comes naturally (copyright is Queen Anne’s curse upon artists and their audiences, not a blessing). Having accepted your fans as promoters, invite them to commission further work from you. That’s how people have been paid since time immemorial – for working, not for the privilege of ransoming people for their cultural liberty.

To Censor or Not to Censor · Sunday March 27, 2011 by Crosbie Fitch

With mouths now being blurred on TV to protect the delicate minds of deaf children who’ve learnt to lip read, it’s refreshing to see Anna’s uncensored sign language rendition of the unbowdlerised version of Cee Lo Green’s Fuck You!

Still, of course, subject to removal from YouTube upon a DMCA copyright takedown notice – should any copyright holders feel so inclined…

This House Proposes To Abolish Copyright · Sunday June 19, 2011 by Crosbie Fitch

The abolition of copyright is now the subject of debate.

It has even been broached at the World Copyright Summit in Brussels 6-8th June 2011:

Neelie Kroes’s EC colleague Reinhard Buscher (Head of Unit for Support for Industrial Innovation, DG Enterprise and Industry, European Commission) was adamant that copyright needed to change to accommodate digital innovation, even hinting that he wouldn’t be completely against abolishing it altogether.

I will be arguing the case for the abolition of copyright at two forthcoming debating events:

  1. June 21st: Has copyright passed its sell-by date?
  2. July 12th: Do we come to bury copyright — or to praise it?

Admitting copyright’s abolition as a subject of debate is comparable to the participants in the Milgram experiment admitting its premature ending as a subject of debate.

It is surprising just how readily juries will observe unjust law and/or level inhuman penalties simply because the law stipulates them, and how much injustice must occur before at least one person will query it.

Just as a tiny few Milgram experimenters dared to ask if 450 volt shocks were really ethical and appropriate as a means of training human beings (with extreme suffering), so some, in our case of draconian copyright enforcement, are beginning to ask if million dollar fines, three year imprisonments, and extradition are ethical measures to help people unlearn their instinctive need to share and build upon their own culture.

Indeed, with copyright we really are in one big Milgram Experiment: immortal publishing corporations demanding that people be educated to respect their anachronistic privilege of copyright, the masses instinctively enjoying their liberty to share their own culture, and the people’s supposedly humanitarian government obediently accepting orders from their corporate lobbyists/sponsors to punish unfortunate infringers as a ‘lesson’ to the rest. The trouble is, it is only those outside the experiment who are desperately screaming at the soundproof windows “For humanity’s sake STOP! But we can’t hear them…

Just how big a shock would you send through a copyright infringer for failing to respect Queen Anne’s annulling of their right to copy in 1709? With the right indoctrination, programming, and authority, it’s quite likely you’d go beyond fines, imprisonment, extradition, even torture, and all the way to execution. As Rick Falkvinge observes, we’ve been here many times before.

  • What we fail to learn from history is that we are doomed to repeat it.

Abolish privilege, abolish copyright.

 

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