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Andy Mabbett, aka pigsonthewing · Monday August 15, 2011 by Crosbie Fitch

“I’ve given you the benefit of the doubt and asked you nicely; but to be clear: if you spam this blog again you’ll be blocked”

So says Andy Mabbett in his blog post about The BBC’s fundamental misunderstanding of copyright – fundamental misunderstandings of copyright being a subject I’m especially interested in discussing.

This makes it particularly difficult to respond to other commenters who’ve replied to me or asked me questions, but Andy has a solution : “I see you have a blog. Please kindly use that, and not this one, to promote your esoteric opinions on copyright issues and apparent desire to change the status quo. I trust everyone with an interest in hearing them will join you there.”

So, I will have to answer the following commenter’s reply to me here (I posted it, but it was blocked):

Stephen Booth says:
August 14, 2011 at 11:23 pm
Crosbie,

Copyright law has been around for more than a couple of decades. You admit your self that it was around in the 18th century, I myself have books dating from the early 19th century with copyright notices in the front. Copyright law was only regularised around the world in the 20th by the Geneva Convention on copyright and there are still some countries not adherant. but it’s getting there.

The intent of copyright law is to support the creators of works, to allow them and their dependents to benefit from their work. It originated not from the desire to stop people running off copies at home but to prevent any yahoo with a printing press running of copies of the latest best seller to sell in the streets without making payment to the author.

Whilst it may be understandable that individuals at home may not understand the details of copyright law and how something enters the public domain. It is entirely reasonable to expect that they should know that copyright exists and at least do a Google search if they are doing anything that think might be related. It is entirely unreasonable to expect that the BBC would not, as an organisation, be aware in great detail of copyright law and how something does and does not enter public domain.

Stephen

Stephen, there are pretexts as to what copyright’s intent is, and there are the actual motivations for its legislation – beware of confusing the two. If you find my explanation as to copyright’s origins too ‘spammy’, you can get a second opinion from Karl Fogel.

It is NOT reasonable to expect people to be aware of a law that prohibits their free engagement with their own culture.

It is publishing corporations who insist it is reasonable of course, but as you see, they will only respect the copyright of other publishing corporations with a comparably sized litigation budget.

I suggest that you don’t waste time trying to educate corporations to respect their own privilege (when in the hands of hobbits), but simply disrespect this 18th century anachronism yourself. Share and build upon the BBC’s output freely. As a license payer you have already paid for it anyway.

Update

Then Pongolyn posted a really good comment in reply to Dave Cousin but it was soon deleted/hidden:

Pongolyn says:
August 17, 2011 at 11:10 pm

That’s a noble sentiment (i.e. creative people should be properly attributed and compensated for their work), but unfortunately copyright law ensures nothing of the kind. It was created in the 18th century by publishers (not artists!) as a means of censorship and monopoly on the means of reproduction (i.e., the printing press). On the other hand, creative people were making livings off of their works for centuries before the Statute of Anne—the argument could be made that they did better then than now! There’s since been a huge cultural shift in the perception of “intellectual property” and the place of derivative works and reproductions in our society. Copyright law’s in need of some huge reform, especially now that technology has evolved to facilitate cheap and ubiquitous reproduction of information. It’s a complete falsehood that copyright is needed, or effective, at protecting the livelihood of artists.

Andy Mabbett really must like copyright a great deal if he would block and/or censor those who’d disagree with him. Evidently, a rather different ethical framework in operation.

Concluding the Copyright Debate · Friday July 15, 2011 by Crosbie Fitch

The 1709 blog and IPKat copyright debate has concluded. Summaries by James Firth and Emma Beverland & Sam Bardon are pretty fair.

However, I am amused by Copyhype’s Terry Hart who concludes “It appears that Team Copyright won”

Here follows my response to Terry:

He he! =))

Remind me what the contest was again?

It was a debate. At the conclusion many fence-sitters had been swayed toward ‘praising’ copyright.

Frankly, I’m not surprised. Copyright abolition is pretty scary [to those reliant upon it], and publishing corporations’ offers of help and support to poor struggling artists sure sound nice.

What equivalent proportion of the 18 million french pirates do you think were represented in the audience at Freshfields Bruckhaus Deringer (2nd largest law firm in the world)?

Those interested in copyright tend to be about 100:1 for it vs against it in my experience.

It’s not the ‘abstainers->praisers’ that copyright supporters should congratulate themselves for (they’re easy), but ‘buriers->praisers’ and preventing any ‘abstainers->buriers’. Note that the audience was not asked a show of hands of those who had swung from ‘abstention/praise->bury’.

That more people learn to support copyright every day can mask the increasing numbers of former supporters who become disillusioned.

So, Terry, do you want to hype and praise copyright, or do you want to understand its injustice and the reasons for its inexorable demise?

Crosbie Fitch said 2845 days ago :

Also see N.Dougan’s review: What’s the future of Copyright?

A Principled Constraint of Cultural Freedom · Tuesday July 05, 2011 by Crosbie Fitch

In RANTIFESTO Nina Paley is astute in noticing inconsistency and a lack of coherent principle in the foundations of the free software and free culture movements. I’ve tidied up my comment to her article as follows.

Nina, the ‘four freedoms’ are not fundamental principles: see Flawed Freedoms

I’ve also explained why (in the absence of privilege) there is no need for an unethical grant of power to coerce distributors of binaries to surrender source code (an offer of an equitable amount of money is ample incentive): Copyleft Without Coercion

As for Creative Commons see: Creative Commons Cultivates Copyright

A principled movement is one based on natural rights – these are the fundamental principles of harmonious human life on this planet per natural law.

I suggest this principled movement would be better named the cultural liberty movement, i.e. freedom ethically constrained by everyone’s natural rights. Better than a movement that pursues freedom unconstrained, whether just for software, or all culture in general.

Richard Stallman’s insistence upon ‘no derivatives’ for literary work can be seen to arise from his arbitrary categorisation of intellectual work (further departing from anything resembling fundamental principle): STALLMAN’S CATEGORIES OF COPYRIGHTED WORKS

It was thus a mistake for the Definition of Free Cultural Works to assume ‘four freedoms’ were fundamental principles that could be extended for all culture generally, especially as this conflicts with RMS’s idea that certain categories of intellectual work don’t warrant as much freedom as others.

It is from the category in which ‘opinion’ falls, that RMS mistakes a need for ‘no derivatives’ as a justified means of preventing misrepresentation (a falsehood). This still doesn’t justify bankruptcy and imprisonment for those who distribute unauthorised derivatives – even those that misrepresent the original author.

The natural right here is to truth (against deceit, or ‘against impairment of its apprehension by others’ as I sometimes put it), and this is the same right that applies in the case of accuracy in attribution vs plagiarism.

Principles do not and cannot arise from freedom, they arise from the vital powers of human beings, human bodies, human minds – to life, privacy, truth, liberty. It is these powers that being equalised into rights delimit freedom.

Artists, authors, software engineers, have the liberty (vital power) to create derivatives of published works that they have in their possession, by nature. It takes an edict by a wicked queen to legislatively abrogate this liberty simply to enrich a consequently beholden press – with a pretext of encouraging her subjects’ learning.

Truth on the other hand is vigorously protected by the people. To deceive others against their will is not a vital power of human beings, except in defence of natural rights, e.g. “There are no Jews in this house”, “I did not have sex with that woman”, etc.

The only power people need is that provided to them by nature. We create law to recognise this power as a right to be protected for all, equally. We create and empower governments to protect this law. We do not empower governments to annul rights in the majority to leave them, by exclusion, in the hands of a few, e.g. copyright (annulling the right to copy). We’ve never had the natural power to prevent others copying the works in their possession, whether we’ve authored them or not, and law that grants people such power is unethical.

In terms of a cultural liberty movement, I’ve started the ball rolling. See CulturalLiberty.org

We already have our natural liberty. What we don’t have is law that properly recognises it – law uncorrupted by the anachronistic privileges of copyright and patent.

John Baker said 2487 days ago :

I have noticed an odd thing in that people seem happy with creative commons licensed films and music etc which almost never provide the full source code i.e. unedited footage plus the projects used to put all that together into an edited ‘complete’ piece.

There are a few exceptions where musicians have provided multi-track stems for remixing, but even those are not the original projects, rather selected renders (you still can’t get back to the source material).

Why do people assume this is OK for film but not for software?

Crosbie Fitch said 2487 days ago :

John, artists are focussed on producing art, and are likely to only have a secondary interest in providing their source/intermediate materials. However, crowdfunding (unlike copyright) can encourage artists to provide these things.

Closed source is an epiphenomenon of copyright, but something Richard Stallman hoped to directly remedy via the GPL. It is a peculiarity of software that it can be highly derivative, and the source is vital for this – not the binary result.

In a free market, when there is no jeopardy to artists in publishing their source materials, the source will have its own price along with the finished edit.

So, provision of source is not an ethical issue, but an economic one.

Copyleft Without Coercion · Saturday June 25, 2011 by Crosbie Fitch

Copyleft – the reversal of copyright’s abridgement of mankind’s cultural liberty, the restoration of freedoms suspended by copyright (and by patent to some extent) – is GOOD.

Without copyright we cannot have freedom?

Depressingly, there is an unfortunate tendency for copyleft supporters to conclude that because copyleft relies upon a copyright license to restore freedoms to the general public, that copyright is not only necessary and indispensable for ‘freedom’, but must also therefore be good – and so also to be supported.

Pointing out the irony of supporting a privilege that annuls people’s right to copy in order that a copyleft license can restore it doesn’t appear to ring ‘Internal contradiction detected!’ alarm bells in far too many copyleftists’ minds.

It is a ridiculous situation that people who would restore the freedoms suspended by copyright feel they must retain the very privilege that suspends those freedoms in the first place (in order to restore them). This is why copyright abolitionists receive very little sympathy from those in the free software movement. To be against copyright is to be against the enabler of freedom that is copyleft: the GPL is holy – without copyright there is no GPL – the abolitionist is a heretic.

As an instrument of injustice the privilege of copyright has no justification in the first place. While it is good that we use copyleft to restore freedoms suspended by copyright, it is ridiculous that champions of that freedom would attempt to justify copyright’s continued existence simply in order that the laudably libertarian licenses of copyleft can continue to undo it.

Freedom is the power to compel disclosure?

The best attempt at justification that copyleftists can come up with is the ethically worrying complaint that without copyright there would be no power to force or coerce people who publish binary derivatives to also publish their source code.

So I find it similarly ironic that instead of being at the forefront of a movement to abolish copyright that copyleft supporters assume they must support copyright in order to enjoy its power to coerce people to release source code to their published binary derivatives of other’s work.

Power corrupts. People enjoy too much the prospect of being able to control others, e.g. limit what others can or can’t do with what they publish, or coerce people to publish things they might prefer not to.

That this power to coerce disclosure of source wouldn’t exist without copyright should be a clue that it’s not a natural power and so not ethical.

Why is copyright/copyleft perceived as closed/open source?

We should examine why people think copyleft and the free software movement is more about coercing disclosure of source to binaries than it is about restoring freedom.

  • Why do people want to coerce others to publish their source code?
  • Who are these ‘others’ who will publish binary derivatives without source?

Given every developer espousing free software is evidently quite happy for source code to be publically visible to enable the considerable advantages of an open and collaborative software development process, there can’t be any ‘closed sourcers’ publishing GPL code. In other words, everyone developing free software wants their source code to be published. They don’t need to be coerced. So, who does?

It must be those ‘closed source’ publishing corporations that exploit copyright to sell binary copies at monopoly protected prices.

But why don’t they supply the source code too?

‘Closed source’ is an epiphenomenon of copyright

Copyright prohibits anyone from making unauthorised copies or derivatives, so the source would be of little use to anyone except those who’d like to help the developers pinpoint bugs – or competitors who’d like to reverse engineer the code and produce a cheaper equivalent. So, given how little benefit there is in providing the source (if not considerable disincentive), it shouldn’t be surprising that it isn’t provided. This is especially the case when you consider that copyright is actually pretty ineffective at preventing copies or improved derivatives.

Copyright doesn’t provide a reproduction monopoly to publishers of software binaries on condition the source remains unpublished. Keeping the source unpublished is entirely an option and decision of the binary publisher. But, it should be recognised that the decision not to publish the source is made soley because it is generally against the commercial interests of the vendor of copies. The more they can maximise the strength of their position as monopoly vendor of copies the better. Only they can produce improved binaries and sell copies thereof, because only they have the source. Certainly the source is provided in some cases, but this is usually reserved for wealthy clients who can afford the premium and legal/security overhead.

As an epiphenomenon, ‘closed source’ falls with copyright

It has to be recognised that people have a right to privacy and if there’s anything they don’t want to make public, they don’t have to make it public (unless a greater right, life is at stake). There’s nothing magical about software that makes it any different from a cookie recipe. People have just as much right to produce cookies or binaries and keep their recipe or source secret – even if their product results from their modifications to published recipes or source. ‘Freedom’ cannot be invoked to sequester the recipe or source code from someone who sells a cookie or binary. Privacy delimits such freedom, not copyright – and unlike copyright, privacy is a natural right.

Let’s remind ourselves as to the objective. It is to restore the freedoms suspended by copyright and undo its epiphenomenon of ‘closed source’, not to empower SWAT teams to break down coders’ doors to seize unpublished source code to the binary derivatives they’ve distributed.

A similar error in using copyright as coercion occurs in the Creative Commons licenses that oblige attribution.

It is as much a mistake for the GPL to coerce disclosure as it is for Creative Commons licenses to coerce attribution. Like ‘closed source’, the lack of attribution is an epiphenomenon of copyright. This is because authors and artists who credit their (uncleared) sources open themselves up to copyright infringement lawsuits – by admitting they’ve copied. Without copyright there is no such disincentive. However, with or without copyright, it is ridiculous to threaten people with million dollar lawsuits if they fail to attribute their sources. There is no right to attribution. The right is to truth, to accuracy in attribution – in other words, a right against misattribution (qv plagiarism). Crediting one’s sources is a mark of respect that credits the creditor and credited alike. But you don’t undo copyright’s epiphenomenon of inhibiting attribution by coercing attribution – instead, you remove the threat from copyright that discourages it, by neutralising or abolishing copyright.

Similarly, you don’t undo copyright’s epiphenomenon of disincentivised source code publication by coercing the disclosure of source. What is ethical is to remove unethical constraints – not to contrive what would happen in the absence of privilege through unethical coercion (ends do not justify means).

Freedom needs no coercion, nor derogation of privacy

I contend that you can remove coerced disclosure from the GPL and still find that it undoes copyright’s ‘closed source’ epiphenomenon.

You undo or neutralise copyright and its abridgement of freedom by removing copyright’s constraints, by restoring the liberty they suspend in a license – and copyleft’s genius judo is in obliging the removal of those constraints in derivatives via the same license, thus liberating the public (including the licensor), not just the licensee.

However, you remove an epiphenomenon caused by copyright by removing its cause, the incentives for it, which is already achieved by the former: the removal of copyright’s constraints (ideally abolition). You need no additional coercion.

Compare coerced disclosure with liberty

Let us explore the difference between two copyleft licenses, one that coerces disclosure of source, the GPL, and one that doesn’t, the ncGPL (non-coercing – identical to the GPL except that distributors of binary/obfuscated derivatives don’t have to supply source on demand).

Those in the free software communities WANT to have the source open – or they wouldn’t participate, therefore the coerced disclosure clause of the GPL doesn’t come into play for this class of developer.

The critical example is of a corporation motivated by monopoly profits.

Why is such a corporation going to publish a binary under the ncGPL that it couldn’t under the GPL?

Remember, the ncGPL still breaks copyright’s ability to enjoy monopoly protected pricing.

Therefore the ncGPL holds no attraction to such a corporation – the largest publishers of binaries whose source remains unpublished/confidential.

Here are three of the obvious business models or propositions the ncGPL permits that the GPL does not:

  • “As you can see from the attached binary, I’ve fixed the bug you asked me to. Once I’ve received payment I’ll provide the source.”
  • “You’ll find via BitTorrent a gratis/freely copyable ncGPL binary we’ve developed as a promotional demo to help sell our secret source code (and thus cover our development costs).”
  • “For a small fee we’ll develop a bespoke binary to your spec that you can freely copy or attempt to reverse engineer and modify as per the ncGPL, but because our source code reveals our exclusive technology we won’t let you have the source unless you pay us considerably more (to cover our R&D costs).”

These propositions could be made under the ncGPL or if copyright was abolished. They could not be made under the GPL, or if copyright was abolished and a new (unethical) law made it illegal to convey binaries without source.

There is nothing ethically wrong with them – being given a binary without source does not derogate from your liberty (it is copyright that is unethical, with its consequent epiphenomena antisocial).

These ncGPL business models do not engender copyright’s ‘closed source’ epiphenomenon that we suffer today because the ncGPL, like the GPL, defeats any market for binary copies. Either the binary is of interest to only a specialist client (bespoke), or it is given away as a free demo of the source to be sold. The likes of Microsoft and other sociopathic corporations exploiting the proprietary ‘closed source’ copyright enabled business model would adopt neither of these two ncGPL enabled models, and that’s because the potential revenue is equivalent to the labour expended – as opposed to the orders of magnitude greater revenue that a state granted monopoly can obtain. Moreover, the bespoke ncGPL binary developer must compete with ncGPL competitors who provide similar functionality with source included – a lack of coercion does not imply a lack of commercial incentive.

Practically, GPL code bases could still be in use in both examples anyway, possibly with the binaries supplied without declaring them to be illicit GPL derivatives. Why? Because the developer isn’t egregiously infringing copyright (though the public might). They are not engaged in the manufacture, distribution and sale of copies – the mode of an infringer that copyright law is optimised to prosecute. If the law cracked down on those who prepared and supplied unauthorised derivatives, the police would be waiting at the doors of publishing agencies and record label A&R departments ready to bust budding new authors and artists who’d failed to obtain licenses for their samples, quotes, and clips, etc. Much as publishers might be happy for people to assume, artists do not and cannot practically perform copyright clearance in advance of creating their art (unless extremely wealthy). The same copyright law applies to software developers as applies to any other artist – even if the process is different. And frankly, I do not see GPL copyright holders hiring private detectives to scour the land for binaries that have failed to declare themselves as GPL derivatives, and then hiring expensive lawyers to prosecute the developers for preparing them illicitly.

Finally, bear in mind that the ncGPL is still like the GPL in requiring that no constraints may be applied to preclude anyone privy to the source code from releasing it. The ncGPL simply omits to coerce those who publish binaries into providing the source on request. The ncGPL would instead recommend making source available on demand instead of making it a license condition. Being identical to the GPL in all other respects it maintains the GPL’s condition against preventing recipients of source from copying or otherwise conveying it. Thus any employees of a company developing an ncGPL derivative would remain just as free to release it unilaterally.

I appreciate that it is widely assumed that the GPL is so successful precisely because it coerces publishers of derivatives to publish their source, but I contend that it needs no such coercion, it needs only to remove copyright’s epiphenomenal incentive to keep source unpublished, and that is achieved by neutralising copyright, nothing more. No additional coercion is necessary. The unnatural power of privilege may be undone by using that power against itself, but freedom is not obtained through the use of that power beyond its undoing.

NB The ncGPL is quite different to the BSD in that the ncGPL requires derivatives to be similarly licensed.

If the proprietary ‘closed source’ business model is incompatible with the ncGPL then it is incompatible with copyright abolition. If you can see that the ncGPL would achieve the same source code transparency as the GPL then you need have no fear that copyright abolition would maintain a significant ‘closed source’ incentive.

The restoration of liberty suffices (copyright & patent abolition)

Copyleft is superior both ethically and economically because it restores the public’s liberty, not because it coerces the publishers of derivatives to disclose source code. It is the restoration of liberty, the dissolution of monopoly, that removes the incentive to keep source secret, not the threat or coercion of a license condition.

It is safe for supporters of free software to support copyright and patent abolition unconditioned upon a prerogative to compel source code disclosure.

Julián Landerreche said 2883 days ago :

Thanks again for such a wonderful stream of crystal-clear thoughts.

Would have never thought of the implications of coercion on the GPL.

I think this is the first time I read about the ncGPL, and there may be a good reason: I’ve googled a little about it and couldn’t find any other reference to ncGPL besides this very same article.

Not sure what the plans are, but… are you planning about formalizing this proposed ncGPL into a proper license to be used by developers?

It seems to me that it could be a great way to massively spread the way of thinking promoted by Cultural Liberty and help others to think in terms of copyleft.

I wonder what Richard Stallman would think of ncGPL, as it seems to take the fight for free sofware and liberties one step further.

Crosbie Fitch said 2883 days ago :

Thanks Julián,

The ncGPL is just a hypothetical variation of the GPL. Possibly it might influence GPLv4, or failing that GPLv5, but because this article is heresy to copyleft dogma (that ‘open source’ is only open because of a license obligation to publish source), I doubt this article is going to interest anyone except those who’ve already recognised that power to compel others to publish source code is not exactly natural.

I published this article primarily to prepare an argument on the matter with Mike Linksvayer. We’d exchanged words on Identica and it was agreed more explanation was required on my part.

See: identi.ca/conversation/72676222

Laurel L Russwurm said 2882 days ago :

One of the things that particularly bothers me about licensing, libertarian or otherwise, is that it seems designed to be continue forever. In the first few centuries of copyright, at least the terms were finite and so works would eventually be freed. What concerns me now is that we may be heading into future of perpetual licenses, with nothing ever again going into the public domain.

As a non-programmer, my concern with closed source code is that can turn my work into ransomeware.

If I purchase software to edit video, say, and edit all my home movies in it using the proprietary format, my work is now locked inside that proprietary format.

Which means:

  • I can’t take my partially edited file and work with it in different editing software,
  • if the company goes out of business, or
  • simply decides to stop supporting it

It’s all very well to say that no one should be compelled to publish sourcecode, but I disagree. Once the software is sold and out there, it must be open and accessible for consumer protection.

In the pre-digital world, I could cut my film on a Moviola or a Steenbeck, but was not locked into a relationship with a single manufacturer. Closed source puts consumers, artists and the culture at the mercy of manufacturers.

Crosbie Fitch said 2880 days ago :

Hi Laurel,

If you have a problem with the term of licenses, you have a problem with the term of copyright. And as only licenses can restore the liberties that copyright suspends, if you hope for liberty you’d better hope that such licenses last as long as the copyright (in some cases they don’t).

As for obscure file-formats, these are a further epiphenomenon of copyright. If you can sell copies, then not only don’t you need to sell the source, but you don’t need to sell documentation of the file-format. Whereas, without copyright you have to sell the source (if you want to get paid for writing it), and if the source is published, the file-format is far easier to understand and document – moreover, the person paid for writing the source, is likely to get paid far more if they document the file-format.

Without copyright you might feel you still need the power to break people’s doors down, severely fine them or imprison them if they publish a binary without source, but such power is unnatural and unethical. This article attempts to explain why such power is not needed, indeed why such power could even be removed from the GPL without affecting people’s incentive to publish source code with their GPL derivatives. I suggest that, without copyright, the civilised approach and ethical incentive is to offer software engineers money in exchange for the publication of their work. Do not make it a crime for them to publish a free binary demo of their work in advance of being paid for their work. Similarly, don’t fine musicians for releasing a free MP3 demo file in advance of selling the score and FLAC versions of each component track of their digital master. Demand only your liberty back, don’t deny an artist the privacy that enables them to sell their unpublished work.

If you don’t like closed source then you don’t like copyright. Don’t make the error of inferring that an ephiphenomenon of copyright warrants a new unnatural, power to compel disclosure. Just abolish copyright. Don’t replace one instrument of injustice with another.

Laurel L. Russwurm said 2880 days ago :

Actually, Crosbie, I’m not keen on either closed source or copyright.

But there is a world of difference difference between:

(1) a software engineer publishing “a free binary demo” (or a musician publishing “a free binary demo” of their work) prior to selling a copy of their work,

and,

(2) a software engineer selling me a copy of their work with the source code locked up (or an RIAA corporation selling me anything locked behind DRM).

A publisher of anything generates income by selling copies. No copyright law anywhere in the world does anything to restrain any publisher from giving away free copies, in whole or in part. Nor would they. After all, that has long been one of the primary means a publisher has of promoting their wares.

Copyright uses the force of law to compel restrictions on people’s freedom to enjoy cultural works, just as closed source uses obscurity to compel restrictions on people’s freedom to enjoy software works. [The same software publishers who lock up their source code tend to avail themselves of copyright law and/or software patents to add the force of law to their assault on their customers’ liberty.]

I am in complete agreement with your statement that “It has to be recognised that people have a right to privacy and if there’s anything they don’t want to make public, they don’t have to make it public.”

Frankly, I would never advocate compelling software engineers to publish. Like novelists, software engineers are always free to write their code and hold it close, never publishing it at all. But, of course, like novelists, once software engineers elect to publish their software, they have themselves ventured outside of the private domain.

When I purchase a copy of a book that is “protected” by copyright, I at least have access to its entire contents. The effect of closed source software is akin to selling a copy of a novel, and then, after the customer has paid the agreed price for it, charging the customer a second time for the key to the final chapter. Effectively making closed source code ethically worse than copyright.

Most consumers are not aware we are being sold a pig in a poke. Disingenuous sales practices fool customers into believing we are purchasing software when in fact, thanks to the most outrageous legal legerdemain, we are merely licensing it. Even further, most users would never dream that it is not within our rights to use such software as we see fit, and are unaware they are legally restricted to using such software only according to the dictates of the publisher (who may, or may not, be the software engineer).

Consumer protection laws must at minimum compel a warning to inform consumers what they are getting. Software may be nearly universally adopted but neither software nor licensing is by any means universally understood by users. In the absence of such warnings, customers are essentially being defrauded. Society must be protected, particularly when the pace of innovation unfairly disadvantages human beings.

Still, society allows unfettered infringement of personal liberty only at its own peril, which is why I am disinclined to the idea of legal compulsion beyond consumer warnings. Education and freely available information will take up the slack. Even without such warnings and education, human beings are adaptable, which is why, as more people are becoming aware of the way closed source software infringes on their liberty, more and more are abandoning that Sisyphean treadmill.

If you give me something, like a “free demo,” it is conceivable that there might be strings attached. If you sell me something, even a copy, any imposition of restrictions, by either legal or physical means infringes on my liberty.

drew Roberts said 2879 days ago :

Crosbie,

I am not sure you are taking into account the TIVO’s of the world.

There are certainly current developers of derivatives of GPL software that do not publish their sources and other who take other steps to prevent you from running changed sources even if you have them.

It is of course one thing to have certain freedoms restored in a generally non-free game and another to have a free game restored.

Crosbie Fitch said 2879 days ago :

Good point Drew.

However, where the GPL fails, the ncGPL cannot do better.

Expensive devices (Tivos or games consoles as opposed to binary files) with which binaries are included should still be treated as expensive device plus free software demo (per the ncGPL the binary can still be freely copied).

The source is unpublished because the developer hasn’t yet been paid for it. Offer them an equitable amount of money for the source and per the ncGPL you are at liberty to share it.

If I sell you a black box that does something useful, then without copyright or patent, that box cannot constrain your liberty. Sure, reverse engineering is hard, especially without the source code and designs, but you remain free to do it. That I could make that task easier by giving you further information still doesn’t actually impinge upon your freedom.

Alternatively, if I’d bound you with manacles and omitted to provide you with the 4 digit code to the combination lock, then I’ve bound you, but that’s because the manacles constrain your freedom, not because I’ve omitted to give you the code. Not providing information to someone does not by itself impinge upon their liberty.

I’ve pointed out this error in the ‘four freedoms’ before. See The Seduction of Social Sanctity

Jose_X said 2868 days ago :

Hey Crosbie, you drew me here from an article by Nina Paley where she wonders why some free software developers tend to make exceptions for opinion writings in what licenses they use and in rights they give (as if to preserve the integrity of opinions when they believe in allowing source code modifications). www.techdirt.com/art…

What I tried to explain in a comment there, as relates to this article, was that trade secrets in software are not easy to decipher and can lead to significant “harm”. There are security implications, and it is a path to significant lock in. A major reason to hide source is to facilitate a monopoly. It’s not that competitors want to know roughly how your software works in order to compete, is that potentially without exact duplication (bug for bug), they are at a significant disadvantage in terms of interfacing in important areas, including by understanding precisely the wide range of created user documents or data. A small misunderstanding (think of “Place paragraph in blue, 12 inches down” vs. “Place half of paragraph in red, 56 feet down”), can lead to horrendous results, even if the competing software is otherwise 10X better. We have network effects to deal with at a level that don’t exist for ordinary consumer goods. You can even create extremely complex protocols or security back doors where the details are changed in real-time over the Internet (eg, where the details aren’t known until run time when the missing key bits are downloaded, encrypted and time spread). The evidence can then be removed. It took a long time to decipher the Rosetta Stone. How much easier would it have been if we simply had a manual to the language? The issue with software is not identical to this, but, there are costs, like with any other reverse engineering, and one where the changes may occur very frequently (and compilers can take a tiny change in source code, in logic, and produce a very different iteration of the compilation because the mappings are many to many not one-to-one). Imagine the Rosetta language changing every hour as we are trying to “crack” the code (of the moment).

[some more…] As I mentioned on that thread, I think without copyright, we would come closer to cracking the codes or at least to better determine that the code is changing a lot. The real solution is to have people avoid the monopolies; however, software’s effect is not something we see, and lock in and network effects take hold and create unfair market places. Calling something unfair is a judgement call, but just as brand and past good experiences lead people to avoid many restaurants and go to particular ones, the problem with software is that it has network effects (“everyone” goes to the same ones) and also it really is easier to change food restaurants because you don’t have to invest a lot in learning the new foods or in interfacing with existing foods you’ve eaten in the past.

My decision on copyright: I would like no copyright (as you do) but not if it would only apply to software. My view is that society would gain so much overall from no copyright (or a weak version) that it would make up for risks in software.

Note, that the GPLv2 is “flawed” in at least 4 important ways. Patents are not resolved. We have “tivoization” (v3 issues). We have online hosting companies (AGPL issues). The copyleft creates inflexibility. These problems make it easier to agree that no copyright across the board (culture including) would be the best.

Mike Linksvayer said 2538 days ago :

Hi Crosbie,

Great essay, apologies for taking nearly a year to read it in full. I’m mostly in agreement, but allow me to highlight two fragments that I disagree with.

“power to coerce disclosure of source wouldn’t exist without copyright”

Not necessarily. Regulation, including the variety backed by coercion, could force disclosure. Such could have nothing whatsoever to do with copyright. For example, a medical device regulator could penalize anyone installing medical devices without source disclosure.

“you remove an epiphenomenon caused by copyright by removing its cause”

Yes, but non-disclosure of source is not exclusively an epiphenomenon of copyright. Trade secret is a well-worn strategy that would make sense in some cases, not in others.

I agree that overall copyright and patent abolition would be a boon to software freedom. But it wouldn’t completely eliminate closed source, nor other avenues for requiring disclosure.

I have a post somewhat related to the points made above, see gondwanaland.com/mlo…

It also touches (see note 5) on possibility of a copyleft license that only neutralizes copyright, adding no regulatory conditions, as you’ve dubbed the “ncGPL”.

Congratulations on seeing copyleft more clearly than most who know of its existence. :)

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.

The 18th Century Overture · Monday March 28, 2011 by Crosbie Fitch

A Crescendo of Copyright

Natural Finale and Reprise

Rejected by The Rethink Music Conference, April 2011, Berkman Center for Internet & Society, Harvard University

Abstract

  • A prologue – mankind’s culture and copyright in perspective

Copyright’s 18th Century Overture

  • 1709 Queen Anne’s privilege of copyright
  • 1787 the philosophy of Paine and the (natural) rights of man
  • 1790 the prestidigitation in which a privilege is inveigled as a natural right

Copyright’s Confrontation with Cultural Liberty reaches a crescendo

  • C19-20 the printing industry’s exploitation of its privilege
  • 1990s the propertisation of published intellectual works as an entrenchment
  • 2000s the piracy of published intellectual works as a natural liberty
  • 2010s the persecution of the people for their piracy (cultural liberty)

Copyright’s finale, and the reprise of natural rights

  • 20?? the prospectus for mankind’s future

Prologue

The extent of mankind’s primordial cultural activity stretches back at least half a million years, but thanks to repeated erasure by glaciation we start the notable cultural events calendar at 50,000BC.

51,709 years later a nascent empire and its pampered press have the impudence to decide that mankind’s cultural commonwealth would be so much better if a law was created to prohibit people from copying each other.

There are a few words for the precursory, unbridled cultural intercourse that still remain in the English language, though they are almost obsolete: ‘folksong’, ‘folkmusic’, ‘folktales’, and ‘folklore’. These primeval springs are still known to a few among us and can be found seeping through the pre-renaissance foundations upon which our modern culture stands.

Today we have the luxury of looking back over the last three centuries of ‘protection’ to see how much richer our culture has become, being effectively manacled and enclosed by corporations such as Disney. Permitted the liberty only to create purely original works, albeit with some tolerance for cultural cross contamination (if not too flagrant), we enjoy a far more creative and diverse culture. Or rather, this is what Queen Anne’s Stationers’ Guild and its descendant publishing corporations would persuade us is the consequence of her wise enactment of law to ‘protect’ published works from the grubby hands and mouths of the great unwashed.

Nothing to do with the printers’ monopolies then…

Let us see the historical accident of copyright in perspective:

65,000,000BC Primates
2,000,000BC Homo Erectus
500,000BC Division into Neanderthal & Homo Sapiens
200,000BC Homo Sapiens’ ancestral basis
140,000BC Glacial retreat after 40,000 year long glacial period
50,000BC Dawn of mankind’s culture: language, music, drawing, etc.
32,000BC Cave paintings
30,000BC Neanderthals extinct
20,000BC Glacial retreat after 50,000 year long glacial period
17,000BC Lascaux Cave Paintings
10,000BC Holocene – modern epoch
9,000BC Jericho
8,000BC Stonehenge site’s significance
3,100BC Stonehenge construction begins
2,611BC First Egyptian Pyramid
753BC Foundation of Rome
300BC Library of Alexandria
48BC Library of Alexandria accidentally destroyed by Julius Caesar
300 Book format outnumbers scroll format
1282 Water powered paper mill
1403 Corporation of London forms Stationers’ Guild
1440 Development and use of printing press begins
1492 Europeans discover New World
1536 Erasmus dies – 750,000 copies of his works sold
1557 Stationers’ Guild granted control over all printing
1572 Fall of Inca Empire
1695 Stationers’ Guild loses control upon expiry of the Licensing of the Press Act 1662
1703 Daniel Defoe endorses commercial piracy of his work – if true copies
1709 Queen Anne Establishes the Privilege of Copyright
1787 US Constitution
1790 Madison re-enacts Statute of Anne (tweaked for the US)
1791 Thomas Paine deprecates privileges
1814 Steam powered printing press
1837 Babbage designs Analytical Engine
1937 Relay computers
1943 Valve/Tube computers
1953 Transistor computers
1969 Internet begins with two nodes
1971 Microprocessor computers
1991 World Wide Web begins
2000 The people obtain the means of mass reproduction and communication
2010 The successors to the Stationers’ Guild seek possession of the Internet via ACTA
2011 Copyright recognised to be ineffective vs the people’s cultural liberty/piracy
2015?? Copyright is reformed to exempt individuals in the digital domain
2020?? Copyright is reformed to exempt individuals
2025?? Copyright is reformed to exempt the digital domain
2030?? Copyright is repealed
2031?? The author’s exclusive right to their writings is properly secured at last – ethically

Seen in a proper perspective, copyright is a legislative misadventure borne of political expediency and commercial self-interest. It is a hiccup in mankind’s history and, in the face of the diffusive nature of information, is coming to an abrupt and natural end.

The future of our culture is one without copyright. It is already dissolved in effect. In terms of law, the precise dates of its repeal are a minor detail. Cultural liberty is in the power and the hands of the people and if not also legislatively restored to them they will throw off Queen Anne’s manacles and revolt against persecution by her now immortal publishing corporations.

18th Century Overture

Privilege

In 1695 the ‘Licensing of the Press Act 1662’ expired, and in the next decade the Stationers’ Company lobbied for a restoration of their control over all printing and their ability to enforce their established printing monopolies.

With the prospect of rampant sedition looming from an uncontrolled press Queen Anne was persuaded to institute the privilege of a reproduction monopoly in each distinct literary work (Statute of Anne 1709). Although this wasn’t an explicit restoration of control over the press to her Stationers’ Company, it was effectively equivalent. Given that the reproduction monopoly would arise in each original work, it would initially be in the hands of the author (albeit impotent to enforce it) and thus enabled the pretext that this was taking power from the press and putting it back with the author.

Principle

Natural rights are the necessary and imperative abilities/powers that an individual is born with, and all are supposed to have in equal measure: life, privacy, truth, and liberty. Being natural, rights must be self-evident. They are not granted by man himself, but are recognised by all and to be protected by all, especially by any governments that are created to secure them.

It should be self-evident that a human being has a natural right to life – that it is not a privilege or unnatural right granted by the state’s legislature (viz ‘legal right’). Rights precede legislature, not vice versa.

A human being has an innate ability, necessity and imperative to preserve their life, but this is bounded by others’ equal right to their lives. Barring highly peculiar and exceptional circumstances, one person’s life does not depend upon impairing that of another. An equal right to life follows from an inference that an egalitarian society is more harmonious and optimal for human beings as a civilisation than one riven by warfare, inequality, and ‘survival of the fittest’.

Privacy, or the right to exclude others, follows from an individual’s innate ability and necessity to exclude others from the spaces and objects that they possess, occupy, inhabit or can otherwise secure. Human beings may operate better in a harmonious society, but that doesn’t mean all human beings have a disposition toward harmony. An individual needs privacy as a measure of safety and security for their dwelling, family, and possessions necessary for survival – against threats from their less social fellows. Privacy is also necessary for the purpose of exchange, i.e. commerce.

Truth, or the right not to have one’s ability to apprehend the truth be impaired (a right against deceit), is necessary and vigorously pursued to protect rights and harmonious exchange (against fraud – inequitable/involuntary exchange). If life and privacy are necessary and rights, so is the truth of whether either was violated and by whom.

Liberty, or the freedom to do anything, countered by others’ defence of their rights, where only actions that violate others’ rights have repercussions from any government created to secure them, follows from an individual’s innate need and ability to understand, explore, and improve their environment, society, and selves.

The concept of natural rights is ancient. Indeed, it is only the corruption of our language by familiarity with legally granted ‘rights’ over the last century or so that the word ‘right’ now needs qualifying with ‘natural’ to indicate that it is the original meaning of ‘right’ that is being referred to rather than privileges that annul rights in the majority to leave them by exclusion in the hands of a few, i.e. legislatively created rights, ‘legal rights’, or just ‘rights’.

This is what Thomas Paine had to say on the matter of natural rights vs those pretended as granted:

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. If charters were constructed so as to express in direct terms, “that every inhabitant, who is not a member of a corporation, shall not exercise the right of voting,” such charters would, in the face, be charters not of rights, but of exclusion. The effect is the same under the form they now stand; and the only persons on whom they operate are the persons whom they exclude. Those whose rights are guaranteed, by not being taken away, exercise no other rights than as members of the community they are entitled to without a charter; and, therefore, all charters have no other than an indirect negative operation. They do not give rights to A, but they make a difference in favour of A by taking away the right of B, and consequently are instruments of injustice.

Thus, paraphrasing, we can see that the right to copy a work, or to exclude others from copying it, is not a right granted by law, but a right abridged or annulled by law, a privilege.

  • The right to copy a work is inherently in all the inhabitants; but charters, by annulling that right, in the majority, leave the right, by exclusion, in the hands of a few – the copyright holder. Such a privilege is consequently an instrument of injustice.

We can observe that an author has a natural right to exclude others from works in their private possession, whether reading or copying them, but this is by dint of their right to privacy. That privacy does not attach to the object of the work or any copies made. It is a right of the individual possessing or occupying it. Once it is voluntarily relinquished by the author from their private possession, once it has been given or exchanged by the author into the private possession of another, then it is the private possession of the recipient. The recipient has a natural right to do with their possessions what they will. Even if they have agreed to return a possession in its original condition after a specific period, this still cannot alienate the individual from their liberty to perform those actions they are self-evidently at liberty to perform, e.g. to study, exhibit or make a copy of a possession.

There are those who will argue that from a utilitarian perspective it is just for a government to abridge its citizens’ liberty if by so doing it will result in some greater benefit, e.g. learning or progress. However, aside from this as little more than post facto endorsement of the pretext for enacting the instrument of injustice, as effective support for lucrative monopolies and the state’s desire to moderate public communications (sedition), it is difficult to see how an expensive system of suppressing people’s liberty to exchange and improve mankind’s knowledge and culture can have the opposite effect. Creating a Stationers’ Company and granting it control over cultural exchange, and latterly instituting an equivalent privilege, may well be lucrative to those able to exploit such privileges, and in the interests of those who would have cultural exchange controlled, but it is not in the interests of the people and their liberty (ability and imperative) to progress their own knowledge and culture.

Today we observe that those notionally delinquent individuals who succumb to the imperative of their cultural liberty, and assert their ability to share and build upon their own culture, are known as pirates, and in these times face bankruptcy or imprisonment – injustice in which the privilege of copyright is instrumental.

Prestidigitation

In 1787 the New World, to become known as the United States of America, drafted and ratified a constitution, a recognition of inhabitants’ natural rights and the empowerment by those individuals of a government created to protect them.

As Thomas Paine says on the matter of individuals and their rights preceding government:

It has been thought a considerable advance towards establishing the principles of Freedom to say that Government is a compact between those who govern and those who are governed; but this cannot be true, because it is putting the effect before the cause; for as man must have existed before governments existed, there necessarily was a time when governments did not exist, and consequently there could originally exist no governors to form such a compact with.

The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

What has Thomas Paine and the concept of natural rights got to do with the US Constitution? This is what Thomas Edison wrote on the matter in 1925.

From the Thomas Paine National Historical Association

The Philosophy of Paine

by Thomas A. Edison, June 7, 1925

Tom Paine has almost no influence on present-day thinking in the United States because he is unknown to the average citizen. Perhaps I might say right here that this is a national loss and a deplorable lack of understanding concerning the man who first proposed and first wrote those impressive words, ‘the United States of America.’ But it is hardly strange. Paine’s teachings have been debarred from schools everywhere and his views of life misrepresented until his memory is hidden in shadows, or he is looked upon as of unsound mind.

We never had a sounder intelligence in this Republic. He was the equal of Washington in making American liberty possible. Where Washington performed Paine devised and wrote. The deeds of one in the Weld were matched by the deeds of the other with his pen. Washington himself appreciated Paine at his true worth. Franklin knew him for a great patriot and clear thinker. He was a friend and confidant of Jefferson, and the two must often have debated the academic and practical phases of liberty.

I consider Paine our greatest political thinker. As we have not advanced, and perhaps never shall advance, beyond the Declaration and Constitution, so Paine has had no successors who extended his principles. Although the present generation knows little of Paine’s writings, and although he has almost no influence upon contemporary thought, Americans of the future will justly appraise his work. I am certain of it. Truth is governed by natural laws and cannot be denied. Paine spoke truth with a peculiarly clear and forceful ring. Therefore time must balance the scales. The Declaration and the Constitution expressed in form Paine’s theory of political rights. He worked in Philadelphia at the time that the first document was written, and occupied a position of intimate contact with the nation’s leaders when they framed the Constitution.

Certainly we may believe that Washington had a considerable voice in the Constitution. We know that Jefferson had much to do with the document. Franklin also had a hand and probably was responsible in even larger measure for the Declaration. But all of these men had communed with Paine. Their views were intimately understood and closely correlated. There is no doubt whatever that the two great documents of American liberty reflect the philosophy of Paine.

contd.

So what are we to make of a US Constitution that reflects the philosophy of Paine, yet is invariably cited as sanction to grant the privilege of copyright – an instrument of injustice?

As The Berkman Center for Internet & Society at Harvard University notes in its call for papers :

Article I, Section 8 of the United States Constitution empowers Congress “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.” In response, Congress created copyright, patent, and trademark law and thus established a framework to govern the protection and exploitation of creative works.

The obvious question to be asked is not whether Congress did create copyright, but whether it was empowered to do so. In any case, it didn’t create copyright, but simply copied the Statute of Anne, changed a few words, and passed it as a fait accompli.

However, one should observe in passing that this typical use of the term ‘protection’ is protection of creative works only in the sense that those works are able to be ‘protected from being copied’ by a privilege that annuls that right in the majority of the inhabitants. Works aren’t actually harmed by copying, so this is a strange use of ‘protection’, a use more appropriate to protecting a monopoly than protecting an object from damage.

As to ‘exploitation’, if one has lost the liberty to copy a work then one has lost the ability to exploit that liberty, e.g. a carpenter denied the liberty to copy a chair can no longer exploit his skills at making and selling reproduction furniture.

So in response to the Constitution’s recognition of the author’s exclusive right to their writings, Congress has instead granted the privilege of a transferable reproduction monopoly for exploitation by the press – industrial, mass producers of copies.

It is remarkable how easily people mistake power to secure a right as power to grant a privilege, power to annul a right.

How on earth does power to grant a privilege derive from the power to secure an individual’s exclusive right to their material and intellectual works?

It doesn’t. The power is assumed. See Paine:

All power exercised over a nation, must have some beginning. It must either be delegated or assumed. There are no other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.

The Constitution does empower the granting of certain privileges, but being instruments of injustice, only against enemies in times of war:

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;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

A ‘Letter of Marque’ is the privilege of being able to seize property from an enemy in time of war. Congress is empowered to grant that privilege. It is not empowered to grant copyright, The Statute of Anne. Though as we know, it assumed the power, and did so – in 1790.

  • (Natural) Rights are secured. Privileges are granted.
  • An author’s exclusive Right to their writings is secured.
  • An army general is granted a Letter of Marque to seize an enemy’s property.

Congress is empowered to secure an author’s exclusive right, or grant letters of marque. It is not empowered to grant authors a privilege that annuls everyone’s right to copy the author’s works in their legitimate possession. NB Copyright even annuls the author’s right to copy their own works, as they discover when they transfer the privilege into the hands of another – typically a publisher.

A constitution that instructs and empowers a government to protect the liberty of its citizens can hardly simultaneously instruct and empower it to enact privileges that derogate from its citizens’ liberty. It may grant privileges that derogate from the privacy and derived property rights of its enemies, perhaps, but not from the rights of its own citizens.

  • Securing a right cannot require annulling another right. A priori, rights do not conflict.

Within their natural right to privacy, an author has a natural exclusive right to their writings. They have a self-evident right to exclude others from copying the writings in their private possession. This right can be secured by law without granting authors any further reproduction monopoly (over production of copies of published works). Authors have a natural monopoly to their private works, and it is this monopoly, and only this monopoly (to which the author has a natural right), that Congress is empowered to secure. Moreover, it should be secured for a time limited to that of the author’s life (or at most their expected lifespan – to deter murder as a means of obtaining an author’s writings).

How then can this ‘progress’ clause in the Constitution and the granting of copyright be reconciled?

James Madison had an affinity for the privilege of copyright, was enamoured of its advantages, and sought to provide Congress with the power to grant it, but recognised that such power could not be provided explicitly. Only the power to secure a right could be specified, not the power to grant such an illiberal privilege. For such granting Congress would have to infer and assume power. Madison foresaw little problem in doing so, as it was he who would likely be the one to enact the privilege of copyright. The clause was phrased as the securing of a right only in order to avoid offending other framers who would ratify the Constitution, who might cleave a little more rigorously to the philosophy of Paine and reject explicit Constitutional sanction to grant copyright. Madison wasn’t exactly shy of assuming power not explicitly provided, as he wrote in the Federalist N°44 that “No axiom is more clearly established in law or in reason than wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power for doing it is included,”. Thus in the case of copyright we can conclude that if Congress was empowered to secure an author’s exclusive right, and Madison felt that annulling the people’s right to copy works in their legitimate possession was necessary to do this, then he had power to do so and could thus enact the privilege of copyright. But, of course, copyright is not necessary, but an assumption of unsanctioned and unsanctionable power to abridge the people’s cultural liberty. Copyright doesn’t even secure the author’s exclusive right, as it enables only a wealthy copyright holder to pursue any burglar or receiving printer, and only then should they actually produce illicit copies.

In Federalist N°43 Madison wrote:

1. A power “to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.”

The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.

  • “The utility of this power will scarcely be questioned.”

Madison is effectively saying “As we have seen in the old country and in those states that have already granted them, monopolies are most lucrative to those of our acquaintance who would continue to enjoy them.”

If the utility of power constituted a warrant, then one could equally argue that power to legislate slavery privileges was also warranted on a utilitarian basis.

  • “The copyright of authors has been solemnly adjudged in Great Britain, to be a right of common law.”

Madison is effectively saying “The people are thus empowering Congress to secure their natural right (not to grant a privilege such as the military instrument we term ‘Letters of Marque’).”

Madison’s work in the Virginia state legislature (1776–79) no doubt informed him of Donaldson v Beckett (1774), the ruling in the House of Lords that denied the continued existence of a perpetual common law copyright and held that copyright was a creation of statute and could be limited in its duration.

As we know later in Wheaton v. Peters (1834), John McLean, who himself had publishing experience as the founder of an Ohio newspaper, wrote the opinion of the Court. In it, he declared that while the common law undoubtedly protected the right to one’s unpublished writings, e.g. a diary, personal letters“this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world.”

So Madison is at best uninformed when he claims that copyright is a right of common law. The author has a natural exclusive right to their writings indeed, it is self-evident, but this is categorically different from Queen Anne’s grant of a reproduction monopoly – a privilege and instrument of injustice.

Power to secure the natural right is not power to grant a commercial privilege.

  • “The right to useful inventions seems with equal reason to belong to the inventors.”

Madison is effectively saying “A patent is as much a monopoly as copyright, but we’ll sanction them both with the plausible deniability obtained through Britain’s apparent recognition of copyright as a natural right.”

Nothing is so obviously a grant of monopoly as a patent, but to avoid that taint, Madison relies upon the misdirection that copyright is a natural right in order to sanction patents on the same basis (induction through similarity).

It is a pity that copyright’s similarity to patents didn’t instead invalidate copyright, on the grounds that monopolies were among the greatest nuisances in government (though lucrative to their recipients, and in the interests of the state granting them). As Madison said to Jefferson in 1788:

With regard to monopolies they are justly classed among the greatest nuisances in government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the public to abolish the privilege at a price to be specified in the grant of it? Is there not also infinitely less danger of this abuse in our governments than in most others? Monopolies are sacrifices of the many to the few. Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many not in the few, the danger can not be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.”

Madison recognises that a monopoly must sacrifice the liberty of the many to the few, as Paine similarly observes that a privilege annuls the right in the majority to leave it by exclusion in the hands of a few. However, despite recognising this, Madison did not have the Constitutional clause specify such a sacrifice. Madison simply infers it when he later comes to re-enact the Statute of Anne and patent law – notably, quite different sets of legislation; one concerned with provenance (copyright) and the other with similarity (patent).

  • “The public good fully coincides in both cases with the claims of individuals.”

Madison continues the utilitarian mandate by effectively saying “Queen Anne used the pretext that granting such privileges would be good for the learning of her subjects, so we’ll elaborate in terms of progress to science as well as the useful arts.”

Yet, despite this allegation that monopolies are good for the people, Madison recognises that monopolies are sacrifices by the many, which is diametrically opposed to the idea that the public good (allegedly so promoted) coincides with individuals’ claims. Individuals may well covet monopolies, but the majority would also have their liberty intact and secured by the government, not abridged in sacrifice for the enrichment of a few.

  • “The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.”

Madison understands monopolies only too well in observing that “Obviously these grants of monopoly cannot be properly exploited unless they are enforceable in ALL states”.

So, I suggest we can conclude that Madison was enamoured of the old world’s copyright and patents, and wished to have them legislated for the US, but having to operate within the strictures of Paine’s natural rights philosophy had to limit the Constitutional clause to the securing of the individual’s natural exclusive right (to writings/designs). He was confident this would enable Congress to assume the power to grant the privileges.

However, not all were so confident. Thomas Jefferson observed that monopolies would need explicit granting via an amendment, and so in his letter to Madison in 1789 suggested this could be achieved via the Bill of Rights Madison was producing:

— Art. 9. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding — years but for no longer term and no other purpose.

Madison no doubt realised that explicit sanction for monopolies could more easily be undone, than the power he was intending to assume to enact them – so he did not add this power to grant monopolies to the Bill of Rights.

Moreover, unlike Letters of Marque, and in accord with the philosophy of Paine, the Constitution could not empower Congress to grant monopolies such as Queen Anne’s privilege of Copyright. It could only empower it to secure an individual’s natural exclusive right to their writings. This is why the Constitution is worded as it is.

The people did not create a government to abridge their liberty in the state’s interest to suppress sedition and the printers’ interest in lucrative monopolies, but to protect them and their liberty.

  • The granting of copyright was unconstitutional.

In 1790 Madison/Congress assumed the power to grant the monopolies of copyright and patent, thus annulling in the citizens their right to copy literary works, and their right to produce designs similar to those registered for ‘protection’.

The author’s exclusive right to their writings and the inventor’s exclusive right to their designs, as recognised by the Constitution, remained unsecured by legislation.

In the next two centuries publishing and industrial corporations in old world and new would learn how to exploit the instruments of injustice they had been granted by crown and Congress, and in the US, how to insinuate copyright as the natural exclusive right specified by the Constitution in what is consequently referred to as the ‘copyright clause’.

A Crescendo of Copyright

Printing

In the 19th and 20th centuries, the golden age of the industrial revolution, the industrial mass production and public communications technologies dramatically advanced.

As these technologies advanced and became ever more economic, the means of production and communication ended up more and more in the hands of the general populace. From photocopiers and tape recorders, to computers and Internet access, the majority had the means to reproduce and took back their liberty to infringe upon the monopolies of the few. Though of course, this infringement was as much a surprise to the naïve proletarian as would have been their breach of etiquette at the royal court. It takes time to learn that one can infringe crown granted privileges in the privacy of one’s home.

Technological advancement made everyone a producer (of designs, software, etc.) and everyone a publisher (of words, music, and now video). But then, we have always been toolmakers and storytellers, advancing and sharing our craft. This is man’s nature. The only new thing in recent times has been the introduction of a law to prevent it.

The means of literary communication to the public went from large, sparse and controllable presses to tiny, ubiquitous, and uncontrollable Internetworked computers.

The end of this period is when the people discover that their cultural liberty, their right to copy and build upon published works, has been annulled. It is also the period when software engineers discover their technological liberty, their right to develop and utilise algorithms (coincidentally patented), has been annulled.

Being told that these rights have been sacrificed and annulled for the greater good, in a social contract made in centuries gone by, can only go so far in allaying public disquiet. The sense that something is rotten in the state of Denmark can only increase, and increase in direct proportion to the efforts of those who would enhance the enforcement of these privileges, these instruments of injustice.

How many innocents must be threatened with bankruptcy? How many who enjoy their cultural liberty must be imprisoned for piracy?

Propertisation

As miniaturisation put more and more reproduction and communications technologies into the hands of the general populace so the privileged press lost their effective monopoly, even as they strove to reinforce the legislation that protected it.

It was only toward the end of the 20th century that publishing/industrial corporations were migrating their vernacular from terms of copyright and patent (esoteric privileges), to intellectual property.

‘Property’ has a resonance with the natural exclusive right of possession that all individuals instinctively recognise. How much better to spin the protection of monopolies as the protection of property, and how convenient to reiterate the insinuation that to secure an exclusive right is to enforce one’s privilege of copyright?

That copyright is property only in the sense that it is a transferable privilege, and that those lobbying for ever greater enforcement are immortal corporations, are embarrassing details to be elided from the public consciousness.

The inevitable reaction to the ubiquity of reproduction technologies is to spin monopoly vs liberty into property vs theft.

And it’s working. Artists are jealously demanding the public respect their intellectual property. Just as the same artists may have once demanded the artistic freedom they are unwittingly denying to others. What these copyright indoctrinated artists fail to realise is that they have been co-opted into the publishing corporations’ marketing campaigns to further reinforce the penalties for copyright infringement (or inducement/facilitation thereof). One artist’s freedom is another publisher’s infringed monopoly. So that artistic freedom is rebranded as theft and the monopoly is rebranded as the artist’s property (dutifully cared for by their publisher).

Today the people’s cultural liberty is the property of the privileged corporation, and the corporation predictably intends to continue gripping it tightly with their incorporeal hands for periods beyond any mortal lifespan – and it absolutely will not stop.

But, as we know, the corporation is a paper tiger, as ephemeral as the legal artifices it lays claim to.

It is people who have real property, and that real property, whether material or intellectual, is defined by physical possession, by the physical boundary of the individual’s private domain and the agreements they make with others (agreements that cannot surrender inalienable liberty). Governments are to secure the individual’s exclusive right to their material and intellectual property, not to abridge it in favour of immortal publishing corporations – whatever the platitudes or pretexts otherwise.

To claim that copyright constitutes property is to compound an injustice with a calumny.

Piracy

The first use of ‘pirate’ was in their blessing

According to the Oxford English Dictionary one of the first uses of the term ‘pirate’ to describe free reproduction of a published work was penned by Daniel Defoe:

1703 D. Defoe True-born Englishman in True Collect. I. Expan. Pref. sig. B3v, Its being Printed again and again by Pyrates.

It’s almost as if by such selective quotation the OED prefers people to interpret Defoe’s sentiments as “Help! The blighters are pirating my poem! Call the navy!” But, then how could the Oxford University Press possibly be biased in support of copyright and against piracy? Is a university in the business of disseminating knowledge for the benefit of mankind, especially the taxpayers who fund it, or in commercially exploiting its reproduction monopolies?

In 1701 Daniel Defoe published The True-Born Englishman, and then in 1703 in a later edition included an explanatory preface:

As to Answers, Banters, True-English Billinsgate, I expect them till no body will buy, and then the Shop will be shut. Had I wrote it for the Gain of the Press, I should have been concern’d at its being Printed again and again, by Pyrates, as they call them, and Paragraph-Men: But would they but do it Justice, and print it True, according to the Copy, they are welcome to sell it for a Penny, if they please.

So, rather than making a furious complaint, Defoe appears to be saying “If my motive in writing this was to sell it to a printer in exchange for their ‘protected’ royalty, I would have been upset at any illicit reproduction. Instead, people are welcome to sell it for a penny a copy, as long as those copies are fair.”

It sounds like Defoe had a good grasp of a more principled approach to publication. Perhaps we might even deduce that Defoe was the first author to welcome pirates as good for publicity and promotion?

He goes on to recognise that commerce is the objective of pirates, and supposes that if no-one buys then no-one will write. But he then sardonically suggests that this would mean that none of his detractors would publish their response, given no money in it – insinuating his detractors put money before principle.

Defoe therefore effectively recognises that for some purposes some people will write irrespective of reward (and that for others they will not).

To learn is to copy

In her statute of 1709 Queen Anne suggested that prohibiting free copying would encourage the learning of her subjects, and yet this is a contradiction in terms.

Learn, from Old English leornian, Proto-Indo-European *leis- “track.” and Old English læst “sole of the foot”, means to find the track, to tread in another’s footsteps, to copy another’s path.

Gary McCallister puts it a little more poetically:

The plains in their sameness and the forests with their obstruction of sight presented challenges for these sea faring men. As they ranged farther from their beach establishment they sometimes became disoriented and finding their way was difficult. But there is an advantage to the land that the sea does not possess. Their passing leaves a mark on the land: a footprint, a broken branch, a scratch on a rock. By carefully following the tracks that they, or their fellow explorers, had left behind they could find their way again to distant places, or home.

Of course, as they followed one another’s footprints through the forests and meadows the trail soon became clear, then worn, and eventually a depressed path, almost a furrow, marked the way to travel. Their word for footprint, track and furrow was “leis”, obviously taken from “lea”, the word they used for the forest clearing, because a track provides information, similar to shedding light on a subject. They also had a special word that meant to follow the track, to benefit from the knowledge of those that came before, to memorize the way, to study out the way to go. They called the process “leornian”, or “lernen”, the word that became our modern word to “learn.”

As the paths became established, one who had traversed the way many times could describe them to someone who had not been there. Of course, the traveler wouldn’t describe every step, which would be too confusing. But the experienced traveler could tell the major landmarks, where to turn at branches in the trail, about how far to go before you would expect to see the next landmark. Eventually there came to be many paths in the land. Some were worn into deep furrows; some were barely visible except to the sharpest eyes. Some went to one place and some to another. But, of course, hearing about the trail isn’t the same as walking the trail. Knowing where you want to go is the most important step. In the end, if you really want to know, you have to go.

To learn is to copy. We learn by copying. We learn to speak by copying. We learn to write by copying. We (and now computers) communicate by copying.

To engage in cultural intercourse is to copy and share knowledge. To progress is to copy and improve or build upon it.

To encourage learning one must encourage copying. Queen Anne’s pretext for copyright is as corrupt as her statute, concerned with self-preservation not her subjects’ education.

To promote progress one must encourage copying and improvement.

Madison’s aspiration for progress in his Constitutional clause may have appeared noble, but his subsequent legislation of privilege was ignoble and contradictory.

One does not create a privilege to prohibit what is not only fundamental to mankind, but essential to life itself, i.e. DNA is about free copying and improvement – the free and natural selection of what best survives.

Privileges are parasites upon a civilisation and they arise because a burgeoning industry can afford them and those who would be enriched by them can ‘persuade’ legislators to grant them.

Privilege doesn’t help promote progress. Progress helps promote privilege.

Persecution

As the immovable edifice that is the anachronistic privilege of copyright encounters the unstoppable tide of a populace possessing the means and cultural instinct to engage in cultural activities that infringe it, we can not only expect continued extension and expansion of the privilege, but ever greater attempts to mutate infringements of the privilege, via propertisation and theft, into crimes against those incorporeal persons we call corporations.

We are already familiar with the two most widely reported cases of music industry litigation vs culturally liberated individuals selected for that litigation.

  • Joel Tenenbaum was just 22 when Sony BMG first contacted him in 2005. He was accused of sharing 31 music files in 2007, found liable for damages of $675,000 in 2009, reduced ten fold in 2010, and with the damages being appealed, this case is still mouldering along.
  • Jammie Thomas-Rasset was 28 and a mother of four when the RIAA first contacted her in 2005, sued in 2006 for sharing 24 music files, was found liable for damages of $1,920,000 in 2009, reduced then increased, and this case is still mouldering along.

It is six years on from 2005 and two human beings have had their lives turned upside down for enjoying their liberty and right to copy contrary to its 18th century suspension (in favour of immortal corporations who have a fiduciary duty to take all necessary measures to continue exploiting this lucrative privilege). And these two are just the tip of the iceberg compared to the many thousands of unsung victims who settle out of court in fear. This is the protection racket that copyright has become, from protecting a monopoly, to protecting/extorting naïve individuals against prosecution for taking natural liberties – “Pay us $2,000 and we’ll protect you against our members who will otherwise sue you for $2,000,000 for sharing music to which they hold the copyright”.

Apparently human beings are not supposed to compete with publishing corporations in the exchange of cultural works. People, those natural beings that created a government to protect them, are instead being persecuted by it thanks to its unethical and unconstitutional creation of two legislative artifices: a privilege and a corporation.

If we create quasi-persons by recognising paper as flesh and not only recognise them as our equals, but elevate them with superior quasi-rights by derogating human rights into privileges, we have created monsters, not servants of we the people, but our masters.

Our surprise should not be at how youngsters have an insatiable desire to share music, but why so many readily believe it to be delinquency – theft from privileged corporations, our cultural overlords, rather than instinctive cultural exploration and engagement.

The Register published the following article in September 2010:

Harrow flicks pirate thrown in slammer

A man from North-West London has been jailed for six months, after admitting to fraudulently filming Hollywood movies at a Vue cinema and then distributing the wares illegally online.

Emmanuel Nimley, 22, of Lincoln Road in Harrow, used his iPhone to take fuzzy recordings of The Crazies, Alice In Wonderland and The Green Zone before he was caught and arrested by police for filming The Bounty Hunter in March this year.

In August Nimley pleaded guilty to 10 charges under sections six and seven of the 2006 Fraud Act, and section 107/1(e) of the 1998 Copyright Designs and Patents Act.

It’s not the first case of its kind, as there have been recent successful court actions against the recording of films in UK cinemas, after prosecutors cited the Fraud Act. However, the Federation Against Copyright Theft (FACT) claimed it was the first time someone had been handed jail time for such an offence in Blighty.

“It may be suggested in some quarters especially among young people that this is harmless fun and film in the cinema is fair game,” said Judge John Anderson of Harrow Crown Court, who sentenced Nimley on 17 September.

“It is not. Your action was a deliberate cheat on the film companies and the film industry. Fraudulently making and distribution of copies for whatever purpose and whatever quality has the effect of depriving the film industry of revenue.

“In current society it’s difficult to imagine an audience wider than the internet having access to such illegal material. Your dishonesty strikes at the heart of that industry.

“This was deliberately planned and carefully executed offending which I have no doubt would have continued if you had not been caught.”

Nimley, who uploaded his poorly-recorded bounty of films onto a website called quicksilverscreen.com, did not actually make any money out of his fraudulent venture, the judge noted.

The UK’s Cinema Exhibitors’ Association’s boss Phil Clapp applauded the sentencing.

“For a long time now, the industry has been lobbying Government for a specific camcording offence. At the same time however, we have been working with colleagues in FACT and various Government Departments, to bring film thieves to book under the existing Fraud Act legislation,” he said.

“The sentence handed down to Emmanuel Nimley, and the judge’s unequivocal condemnation of the impact of film theft, is hugely welcome. I congratulate colleagues at FACT and at Vue Entertainment who worked so had to achieve this result.”

As we previously reported, the CEA and other flick industry bodies have complained that the UK government lags behind Europe and the US because there’s no specific legislation that can be used in a charge such as the one against Nimley.

This comment shows just how confused even the judiciary is by Queen Anne’s privilege of copyright:

“Fraudulently making and distribution of copies for whatever purpose and whatever quality has the effect of depriving the film industry of revenue”

There was no fraud, no dishonesty, no plagiarism. Emmanuel Nimley never pretended his inferior iPhone copies were anything they weren’t. And since when has providing a cheaper albeit inferior alternative product to the marketplace warranted a prison term? Are potential customers now also to be ‘property’?

This is not justice, but injustice. It is not a government protecting its citizens’ liberty, but a government further corrupting its legislature and judiciary to protect its corporations’ monopolies. In turn these immortal corporations are using their instruments of injustice to persecute mortal citizens, as if perhaps they hope to at least educate them out of their delinquency to become upstanding consumers of content (from only licensed producers).

While copyright remains on the statute books, while it continues to annul the people’s right to copy, the people will be at odds with it and those entities that would enforce it – ever more jealously.

Queen Anne’s unnatural artifice and King Canute’s sandcastle of copyright will be repeatedly reinforced and its enforcement will increase in intensity.

The natural tide of the people’s liberty and cultural diffusion is rising and the folk will once again resume sharing their song and tales, their mp3 music files, their movies and e-books, ignoring royal privilege and decree, inexorably eroding copyright’s sandy ramparts.

What has stood for three centuries is soon to be a barely perceptible bump in the flat sands.

When it comes to a battle between crown and people, don’t bet on the king. Out of the two, the people are the only real thing on this planet. Privilege and royal prerogative are as ephemeral as paper tigers in the grand scheme of things. The King and his law, state and legislature, exists at the pleasure of the people, not vice versa. Law is to protect the rights of the people, not the comforts of crown and courtiers. Inveigling a privilege as a right is a folly doomed to failure. Madison’s legislative misanthropy is undone and must be made good. The Constitution can stand, but copyright must fall.

Until then, the cacophony of the conflict between copyright holding corporations and liberty imbued inhabitants is rising to a crescendo.

A Natural Finale and Reprise

The gift of a monopoly granted by copyright has effectively dissolved – copyright can no longer prevent or deter copying by a populace imbued by nature with the right to copy, and enabled by modern technology with the facility to copy.

However, the privilege of copyright as a weapon remains nevertheless, its potency increased, though its thirst for million dollar fines cannot be sated against any except the most wealthy (and most unlikely) of victims.

In the face of ever advancing information and communications technology, and the instantaneous diffusion of the Internet, the legislation of copyright is an anachronism and must be repealed. An immediate repeal would be best, but a staged dissolution is likely to involve less upheaval.

It is nature that has brought an end to copyright, and this is because copyright is unnatural, at odds with people’s primordial need and ability to build, to make tools, to communicate, to progress their own culture and technology.

We must restore proper recognition of people’s natural cultural and technological liberty, but by all means secure the individual’s natural exclusive right to their writings and designs, as all natural rights pertaining to their intellectual works (also known as moral rights).

Prospectus

There are many departures in UK and US legislatures from protecting all individuals’ natural rights equally, toward protecting the interests of those favoured by the state, the powerful, wealthy, and famous, and not least, the methuselaic corporations.

One should consider repealing and replacing trademark with law against passing off (fraud, malicious deception). Concerned industries can create their own registries of branding, trade dress, etc. for precautionary or disambiguation purposes. An identity is a natural monopoly only as far as identity is concerned, and does not entitle any monopolisation of symbols, names, words, colours, smells, etc.

One should also consider repealing laws against defamation and libel. A reputation is an epiphenomenal attribute, not property. Persistent or malicious falsehood, deceit, and fraud are the misdemeanours to be prohibited and remedied.

However, aside from those areas in which monopolies have been explicitly granted (copyright, patent), or are forming (trademark), or in which speech is unethically constrained (non-disclosure agreement), the most pressing need is to repeal the privilege of copyright.

Once privileges are repealed, and individual liberty is restored, we can return to properly recognising and protecting the individual’s natural rights concerning their material and intellectual works.

We have to develop legislation that properly secures the individual’s exclusive right to intellectual works in their private possession, including those they’ve authored, discovered, or invented. NB This does not constitute ownership of ideas, but the individual’s right to control the transport and communication of matter, information, material and intellectual works across the physical boundary of their private domain (without impinging upon the liberty of privy individuals). Thus coincidentally similar authorship, discovery, or invention is not a violation of the exclusive right.

This legislative reform then reprises the Constitution’s representation of the people’s mandate to recognise, and create a government to protect, their natural rights, to life, privacy, truth, and liberty.

At the earliest opportunity:

Exempt individuals for copyright infringement in the public digital domain, i.e. only manufacture and distribution of material copies can constitute an infringement, e.g. printing and distribution of paper books or CDs is not exempt, but file sharing via a network or radio broadcast is exempt (unless of works obtained via burglary – violation of exclusive right).

Legislate the protection of natural rights concerning intellectual works – also known as ‘moral rights’, e.g. that attribution is accurate, that the integrity of any work attributed to an author is preserved, etc.

Corporations remain liable for copyright infringement – including authorising/inducing individuals to do so.

And within 5 years:

Exempt individuals for all copyright infringement in the public domain, e.g. book printing, file-sharing and burning of CDs are exempt, unless of works obtained via burglary.

Corporations remain liable for copyright infringement – including authorising/inducing individuals to do so.

And within 10 years:

Exempt corporations for infringement in the public digital domain, unless of works obtained via burglary.

And within 15 years:

Repeal copyright.

The Congress shall have 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.

To recognise and ensure that individuals can freely share, build upon, and exchange the intellectual works in their private possession, to engage in commerce thereof, and thus promote the progress of science and useful arts, Congress should abolish any law that unjustly impedes this free exchange, such as a grant of monopoly, and make law to secure the individual’s natural exclusive right to the intellectual works in their private possession, including those they’ve authored, discovered, or invented, for a time no longer than their natural lifespan.

irdal said 2898 days ago :

This is a brilliant and inspiring article. WELL DONE!

Crosbie Fitch said 2898 days ago :

Thank you irdal, especially for copying and republishing part of my article without seeking permission from its respective copyright holder.

irdal said 2898 days ago :

You are most welcome, and thank you for the generous license you published this essay under, where everyone is “…free to take any liberties you wish with these published works.” A most enlightened and forward thinking license!

Crosbie Fitch said 2898 days ago :

irdal, the libertarian license may be ‘generous’ relative to others, but no-one in receipt of stolen goods can be generous in returning what is not rightfully theirs to its true owner.

I cannot be generous with the people’s liberty – it is not mine to be generous with. The least I can do is to neutralise the privilege that annuls it. Generosity is to do more than is necessary.

Crosbie Fitch said 2898 days ago :

Here’s a paper that provides some background reading to the flagrant copying of the 1709 Statute of Anne, by the US 1790 copyright act: The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant

it/is/on said 2886 days ago :

I copy.

Worth adding to the timeline is the case of Colmcille’s Copybook circa 560AD in Ireland

:)

Crosbie Fitch said 2886 days ago :

Thanks it/is/on,

Probably something like this eh?

560AD:
Colmcille is the first ‘copyright infringer’ (of a comparable prerogative).

560AD:
High King Diarmuid decrees copies of books belong to the owner of the book copied, via “To every cow its calf”.

AeliusBlythe said 2862 days ago :

‘folksong’, ‘folkmusic’, folktales’, and ‘folklore’.

Once known as ‘song’, ‘music’, ‘tales’, and ‘lore’.

I think you’ll have a hard time convincing artists that current copyright goes against natural rights, or that an artists right to his or her own work does not need to come at the cost of another’s right to copy. This is because the industries (music, film…) have done a good job of convincing people that they do exactly this:
“We have to develop legislation that properly secures the individual’s exclusive right to intellectual works in their private possession, including those they’ve authored, discovered or invented.”

I also like that you include a timeline extending into the future, though I’m not sure I agree with everything in it. Has anyone else done anything similar? I think a discussion of precisely how the transformation of the laws should proceed can minimize the knee-jerk reaction of artists hearing “repeal copyright.”

Crosbie Fitch said 2860 days ago :

Very good point about the ‘folk’ prefix Aelius.

I’m not really trying to convince qua convert artists. Having spent time understanding things myself, I provide disillusioned artists with an explanation and understanding of copyright’s demise, that it is not their audience that is delinquent, but their 18th century privilege.

As I also commented on the 1709 blog I do not expect to outdo the copyright industry’s persuasive propaganda.

The future timeline is just to suggest a staged dissolution of copyright, but anything could happen, e.g. the short-lived folly of an Internet tax (compulsory license), simple repeal, or just more and more legislative/enforcement cluelessness. However, despite appearances, the camel’s back is limited in its straw carrying capacity, i.e. the people's tolerance.

I expect others have produced timelines, even ones extending into the future.

I think your last point is right on the button, and one of the key reasons I created the culturalliberty.org Wiki. If copyright must fall, what would law governing intellectual work (distribution, communication, etc.) based on natural rights look like? It’s also interesting to see what exchange mechanisms would look like for commerce without copyright, but then that’s the remit of digitalproductions.co.uk

KH said 2770 days ago :

Perhaps I’m missing something…

But once copyright is completely repealed, how will the creators of content get paid for that content? If an author cannot expect to enjoy exclusive rights to his or her work, how can they afford the opportunity cost of devoting potentially years to writing a book? Would novelists all have to get day jobs?

Your examination of the history is fascinating. But unless I’ve missed something, it seems your conclusion is not very well-thought-out.

Crosbie Fitch said 2770 days ago :

KH,

Copyright is not a means of enabling authors to be paid for their work, but a means of enabling the press to become extremely wealthy (and a means of enabling the state to control the press) – at the cost of suspending the people’s cultural liberty (to share and build upon published works).

Authors may be paid for the state granted monopoly that arises in their work, or they may be paid for their work (their labour in writing it), but be careful not to confuse the two.

An author is born with the exclusive right to their writing (as the US Constitution recognises), but they are not born with a right to prevent others copying their published works (a state granted monopoly). By nature, human beings have the power to prevent burglars copying their work, but no power to prevent their customers making copies of what they buy from them (for that they need a grant of such power from the state).

Without copyright, an author must sell their work instead of the state granted monopoly that arises in it. If an author has a thousand enthusiastic readers (their customers – formerly customers of the press) then it is those thousand enthusiastic readers the author will sell their work to, e.g. by inviting them to commission further work (a commission of $10 each from 1,000 provides $10,000). Obviously, with the author having sold their writing, there is a free market for any printer to print and sell as many copies as they like (or for any reader to fileshare), but at free market prices, not monopoly inflated prices.

Printers do not want a free market in printing copies because it dramatically reduces their profits (they therefore don’t want authors being paid directly by their readers).

But yes, novelists will have to get day jobs until commission from their readers is sufficient to pay the bills. That means writing short stories first, before spending ten years on ‘War & Peace’.

AeliusBlythe said 2770 days ago :

@KH
“…how can they afford the opportunity cost of devoting potentially years to writing a book? Would novelists all have to get day jobs?”

Actually, many authors already DO have day jobs, I’ll admit I don’t have any statistics on hand for that (going to look . . . ), but I’m weblit writer and aspiring novelist and I can tell you it’s not that common to meet someone who can support themselves entirely on their writing. And those who can aren’t exactly living like JK Rowling. Unless they’re JK Rowling.

And if you need to see that authors will write even with a full time job and no sales, look at Jim C Hines’s survey of novelists. The average time spent writing BEFORE a sale was 11 years! People worked all that time with no guarantee of payment, and with no income whatsoever from their novels. And you can also see that most of these people did not have many short storie sales in this time, so they weren’t making their living that way. Here: www.jimchines.com/20…

Or you could just hop over to the NaNoWriMo forums! Go meet all the writers who are squeezing in novels around full-time jobs, families and other obligations. Some of these will see some money for their writing one day. The vast majority will not. And yet, they write.

Also, for freelance, this is a non-issue. Unless magazines and newspapers take to breaking into people houses to steal articles and short stories, they still need to pay their authors up front, copyright or no copyright. So this is and will always be a viable source of support for novelists-in-the-making.

Crosbie Fitch said 2770 days ago :

Thanks AeliusBlythe, for an experienced authors’s perspective – as to what copyright is really worth to a writer (99.9% of which are not ‘best-selling’), as opposed to a publishing corporation.

Too many of those indoctrinated by copyright seem to think that it guarantees authors a minimum wage for each hour they spend writing (and a good chance of Rowlingesque success on top).

All copyright’s ever guaranteed is that printers/publishers can sue competitors/pirates (if they can afford the lawyers).

Aaeru said 2534 days ago :

Just wanted to add this transcript from Jeffrey Tucker:

“A hundred years from now, people are going to look back and go, “what is going on? you know, where the early parts of the 21st century the government was trying to stop progress. What were they doing?” I mean the whole beauty of the digital world is that we are seeing this mass migration from the intrinsic scarcity of the physical world over to this world of infinite copyability embeded in this digital media so that you can use it and I can use it and this can go on for billions and trillions (of uses for infinite people) and unto infinity. So we are seeing this migration of goods and services from the scarce world to the non-scarce world and is leading to this global productivity that is flowering this civilization everywhere.
And what is the State trying to do? It’s trying to stop it. It’s fighting it tooth and nail. It’s trying to turn the digital age back into the analog age, where the State was really running everything. And it’s stupid and it’s embarrassing. I mean as citizens of the world we should be embarrassed by what our governments are doing because it’s aphoristic, it’s silly, it’s no different than if you had a bunch of goon-squads trying to chop up the Gutenberg Presses (printing presses) in the late 15th century. It’s no different from that. It is an attempt to stop progress and to stop the flourishing of civilization and the improvement of the well-being of all of humanity, and at some point people are going to recognize this and go, “well this is just dumb”. What is the thing that causes the State to do this? “Oh it was a mistake. They called it Intellectual Property. They used to think that ideas could be owned.”
It’s just the same way with how today we look back and go, “what were those people thinking that they thought that human beings can be owned or that there can be such a thing as slavery. Isn’t that obviously contrary to human rights?” And we all recognize that now. And in a hundred years from now people are going to go, “what is this thing they called intellectual property, don’t they know that ideas, once they are stated are the common property of everybody? and that’s part of what makes for the flourishing of civilization and part of what makes for progress, in fact isn’t that the motive force and the driving force behind prosperity?”
www.youtube.com/watc…
Start from 30:00~

Rethink Music - Per Tradition · Monday March 28, 2011 by Crosbie Fitch

There is a conference called Rethink Music – held 25-27th April 2011 at the Hynes Convention Center in Boston by the Berkman Center for Internet & Society, Harvard University.

I’ve now realised they are using the newspeak definition of ‘rethink’: To repeat the traditional thinking upon a controversial subject or problem area, as if expecting a different conclusion or solution – but in the knowledge that the outcome will be at most a refinement of that on each previous occasion.

This is distinct from the naive definition of ‘rethink’: To discard all preconceptions and address an apparently intractable problem from first principles, thinking about it afresh.

Obviously, if you keep thinking the same way about something, you’re going to keep reaching the same conclusions. It would be insane to expect anything else.

Anecdotally, I was recently about to argue copyright with someone and the example was to be a book. When I gently insisted that we distinguish between the intellectual work of the novel (by the author) and the material work of the printed copy (by the printer) the other person point blank refused to continue any further. They weren’t yet ready to separate the traditional conflation of book with novel. To them they were one and the same, and so ‘Paradigm shift ahead!’ alarm bells were evidently sounding in their mind. For some, this comfort of thinking of things in the traditional way is preferable to thinking of things in a new and radical, if more accurate way – even if they have an interest in understanding the problems that arise when anachronistic tradition becomes undone by information technology.

I suspect a similar reaction on the part of the Rethink Music conference persuaded them to reject my submission to present the Contingency Market as a facility to enable artists to exchange their intellectual work for the money of their enthusiastic audience (instead of via the sale of monopoly protected copies via traditional publishers). Similarly, my submission of a paper that proposed copyright’s abolition to best remedy law in this area was also rejected. Somehow, I think they’re only interested in minor tweaks. They don’t want anyone to actually do the unthinkable and rethink copyright, that great American tradition that abrogates the people’s liberty to sing each other’s songs or tell each other’s stories.

What will Rethink Music conclude? Will it propose yet again the compulsory licensing of file-sharing on the Internet? I have a hunch there won’t be any proposals to abolish copyright. The most to hope for is that Kickstarter.com gets a mention, but that is perilously close to disintermediating publishers, by exchanging intellectual work (not copies) for money. Let us see…

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…

Privacy is not Subject to Policy · Monday December 20, 2010 by Crosbie Fitch

Just because a corporate website declares a ‘privacy policy’, that should not lead you to believe that your privacy is or can be at all affected by that policy, certainly not to believe that your privacy can be extended into their data-centre.

It should be recognised that your privacy ends at the boundary of your personal space, home and possessions. When you confide your personal data to another person or a corporation it’s governed by very little, certainly not you. Their misnamed ‘privacy policy’ (more properly termed a ‘discretion policy’) just lets you know how indiscreet to expect them to be as a matter of their policy, as opposed to their practice (very indiscreet).

Corporations could be regulated to be so discreet as to attempt to simulate an extension of your privacy, but as we have seen with Wikileaks even highly secretive and unscrupulous superpowers can fail to silence their staff, just as they fail to torture the truth from their suspects. Do not expect a corporation to achieve what a totalitarian state cannot, however steep the fines for regulatory non-compliance.

What the likes of Facebook should teach us is not that privacy has ended, but that they cannot not provide or extend it except as a con. You cannot outsource privacy. It doesn’t work like that. There is no power on earth that can constrain the further dissemination of information that has been disclosed. Sticking a magic symbol © on it doesn’t work either. That information is of a personal nature may increase your desire that your doctor does not disclose it, but it his discretion, not your right to privacy, that determines its non-disclosure (irrespective of professional repercussions). This is natural law. We can make unnatural laws and privileges to the contrary, but that is unethical and futile folly.

Human beings have freedom of speech. It is a fact of nature. You cannot recognise that and covet the power to silence others, those you’d rather not have that freedom.

Here it is in bullets:

The Right

0) Privacy is the natural right to exclude others from a private domain.
  1. A private domain is the physical region surrounding an individual’s or group’s bodies, possessions and spaces they necessarily occupy, inhabit or have secured.
  2. It is a natural right because individual human beings have a natural need for it and an innate ability to achieve it.
  3. Those within (included/privy) have the liberty to include (admit) or privacy to exclude (deny) those without (excluded/not privy)1
1) As a natural right, privacy is unalienable and to be protected by government for all individuals equally.
  1. As a right it is therefore not possible* for privacy to be affected by policy, nor agreement/contract (T&C, EULA, NDA, etc.).
2) A government may unethically enact laws that abridge natural rights such as privacy.
  1. A government may grant privileges such as copyright, and grant holders powers or additional privileges to invade a person’s privacy in order to detect potential infringement.
  2. *A policy that neutralises, or covenants not to exploit, privileges that abridge privacy can restore privacy from their affect.

The Confidence

3) If I am a human being you confide in:
  1. I am a mortal and have natural rights (life, privacy, truth, liberty).
  2. Your privacy delimits my liberty, and so I am not at liberty to invade your privacy, nor you, mine.
  3. Your wish to constrain dissemination cannot derogate from my liberty, nor my freedom of speech.
  4. Your disclosure does not enthrall me, i.e. bringing me into your confidence does not bind me to silence.
  5. If you confide any information (to which you are privy) to me, it is no longer private from me.
  6. I am thus privy to the information (to which you are privy) that you disclose to me. It is now private to both of us.
  7. You must rely entirely upon trust or confidence in my discretion, concerning any desire or plea of yours that your confidences not be further disclosed or disseminated.
  8. If there are no extenuating circumstances supporting it, my indiscretion or disclosure of confidences may have repercussions for my reputation as a trustworthy and discreet individual.
4) If I am a corporation you confide in:
  1. I am a legislatively created entity, unnatural/immortal, and can have no natural rights.
  2. Laws and regulations could constrain me without limit, but are typically lax and expensive to enforce.
  3. I have a fiduciary obligation to place profit above all other considerations and cannot be trusted as a mortal – you are best advised to treat me as an unscrupulous and mercenary psychopath.
  4. I lobby for, amass, and exploit as many state granted privileges (aka ‘legislatively created rights’) as I can – however much these derogate from your rights, such as privacy and liberty.
  5. I will not hesitate to pretend your private domain extends into my domain in order to beguile you into believing your personal data and other confidences that you have disclosed to me still remain private to you (can be treated as if not in my possession).
  6. In order to obtain your confidence it is likely that I will make some attempt to avoid the disclosure/exploitation of your confidences being easy for you to detect.
  7. There are few repercussions in the event you do discover how indiscreet I have been with your confidences – and what few exist are usually ineffective as deterrent or remedy.
  8. The only sense in which your confidences can be said to remain private to you is in the sense that it will not be obvious to you or your agents as to what extent they are processed, disclosed, disseminated, or otherwise exploited.
  9. I am staffed by human beings (some of whom will necessarily become privy to information you confide in me) that I am unable to constrain (see 3).

The Conclusion

5) You cannot both include a human being in your private affairs AND exclude them (or constrain them to exclude others). You must trust in their discretion.
6) Although a corporation is a legal entity, and having no rights can be legally bound to silence or non-disclosure, it cannot be trusted to observe such a binding constraint, especially given that its human staff cannot be so bound.
7) One cannot constrain an individual’s communication, nor hope to constrain a corporation’s.
8) One should only prohibit a communication, and have some expectation of achieving remedy, where it violates an individual’s rights, e.g. where it:
  1. prevents an individual from communicating
  2. impairs an individual recipient’s apprehension of the truth (is fraudulent)
  3. violates an individual’s privacy (discloses information obtained through invasion/burglary)
  4. jeopardises an individual’s life
9) So called ‘privacy policies’, except where they covenant not to compromise privacy through privilege, are generally redundant and misleading, if not dishonest. They’d be better termed ‘personal data processing and communications policies’ or ‘assurances of discretion’.
10) The suggestion by a ‘privacy policy’ that an individual’s private domain can be effectively extended into the purview of a corporation is an abhorrent con.

____________________

1 An author’s exclusive right to their writings derives from the right to privacy and is their right to exclude those not privy from access to, distribution, copying, or communication of them. Naturally, those made privy by the author have equal rights to liberty and privacy, and so, aside from authorship and ownership of any underlying material objects, the same exclusive right to the writings, and the same liberty to disseminate them. NB This shouldn’t be confused with copyright, which is a privilege derogating the right to copy from others’ liberty in order to benefit the holder with a means of enforcing a reproduction monopoly. When people say “Copyright is the right to exclude others from making copies” they are using ‘right’ as a contraction of ‘legislatively created right’ or ‘legal right’, i.e. a privilege – granted and established by Queen Anne in 1709.

Laurel L. Russwurm said 3077 days ago :

You state that “Human beings have freedom of speech. It is a fact of nature. You cannot recognise that and covet the power to silence others, those you’d rather not have that freedom.”

Actually human beings are quite capable of doing an awful lot of illogical things. In my experience most human beings are able to hold two mutually exclusive ideas in our heads (ambivalence), often without realizing it, and thinking that we believe both. Consecutively or concurrently. It’s part of why humanity is so confused.

Which is why it is important to examine and actually think about the views we’ve adopted, whether through training, life experience or osmosis.

Thank you for clarifying this important issue at a time of year so many of us are purchasing gifts like video games for our loved ones. It’s an excellent opportunity to remind our children the best way to safeguard their online privacy is to never give personal information to corporations.

This is the one place that lying becomes ethical as self defense against corporate incursion.

Crosbie Fitch said 3077 days ago :

Yes, Laurel, sadly doublethink is an endemic talent. I have come across a few who at the same time as recognising that copyright should not prohibit them from sharing music without the holder’s permission, fail to recognise that they don’t have a natural right against (and shouldn’t have legal means (NDA) to punish) those who betray their confidences.

I agree that falsehood is not unethical as a protection of one’s privacy, e.g. to respond “No” to “Are you gay?” or “Did you have sex with that woman?” does not necessarily constitute unwarranted deceit. Conversely, if someone’s life depends upon a truthful answer, falsehood may then be unwarranted irrespective of a consequent compromise of one’s privacy.

John Baker said 2510 days ago :

Very good point and another hyper common double speak dissected.

Discretion is a much more accurate way to describe what people mostly refer to as privacy online. Its a matter of “is a choice of trust here wise?”. When people worry about privacy online they are usually mostly concerned about “will my information be used for or against me?”.

Companies like to call it privacy but can always then go against you when convenient to do so because essentially you were on operating their private property!

Online, people are lulled by commercial services into disclosure by cool features they do want to use that require the data to function (i.e. location for convenient mapping app), but there are also ways to use that data if stored at a later date against the person.

Most corporations are in a race to gather data as much as possible in the hope they can find some use for it later and monetize it which obviously they cannot even declare in their “discretion policy”. Also, any subsequent sharing with a third party, they cannot declare what will actually happen with it because they cannot even know.

People call it their ‘privacy’ concerns, but really it is a ‘usage’ concern.

The hugely leaky world online is a problem mainly because its the way the data is used that is key, not the data itself.

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.

 

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