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The Calling of Cultural Liberty · Thursday November 06, 2008 by Crosbie Fitch

It’s good to see Rob Myers observe that freedom is for people – not inanimate objects, not intellectual works, nor the culture formed from them.

It is the human being that is to be free, not their works.

We can chain our books to the shelves of our libraries without compunction for their lack of liberty, but we should not manacle the hands of those we sell them to lest they place what is now rightfully their property in a photocopier.

Rob also enumerates other terms people use and abuse when describing the epiphenomena of cultural liberty, e.g. “Commons”, “Gift Economy”, “Quid Pro Quo”, etc.

I’d suggest that ‘Freedom’ can also be abused as a term (not least ‘free’).

It is not absolute freedom that is the ideal to be pursued, but freedom ethically constrained.

Otherwise, if ‘freedom’ is to be misconstrued as an inherently noble objective, we have such aspirations as “the freedom to choose how my work can be used, and what copyright license I give” and “the freedom to inspect or sequester source code from the author’s premises”.

‘Freedom’ is not a trump card to play when seeking to violate another’s right. It alleges an unethical constraint when asserting one’s rightful liberty against its suspension by the privilege of another.

We may express a desire to have the freedom to park our car on our neighbour’s drive, but the mere citing of an aspiration of ‘freedom’ cannot invoke a right, as if that invocation could then trump our neighbour’s natural right to privacy.

Freedom is a lack of constraint. It is neither intrinsically noble nor inherently ethical.

Ethical freedom is a lack of unethical constraint, and is more succinctly termed ‘liberty’.

We do not have a right to freedom. We have a right to liberty – freedom constrained only by the equal rights of others.

Rob Myers said 3124 days ago :

I have been using “freedom” and “liberty” as synonyms despite coming at this via Mill and Berlin. I agree that the word “freedom” can be misused.

“Liberty” has problems as well, though. Libertarians of the Ayn Rayn variety for example.

;-)

Crosbie Fitch said 3124 days ago :

I’d see a pursuit of ‘freedom’ as closer to ‘libertinism’ than a pursuit of liberty as libertarianism, but these words do get stretched a tad.

Given Ayn Rand supported patents and copyright I’d say she was a utilitarian in a libertarian’s clothing.

I’m not saying ‘liberty’ is free of abuse, but it seems a better term than ‘freedom’ if needing to refer to liberty as understood by natural rights libertarianism.

Fire in a Crowded Theater · Wednesday February 11, 2009 by Crosbie Fitch

The example of shouting “Fire!” in a crowded theatre is often used to indicate that free speech should have limits. However, it really needs a little more examination.

We first need to look a little more closely at the difference between freedom of speech and liberty. Freedom is simply a lack of constraint, whereas liberty is freedom subject to a government that protects everyone’s rights equally by prosecuting violations thereof.

So, in a free society the individual is without constraint such that they remain free to violate others’ rights (though obviously not without deterrent or remedial consequence). In a non-free society individuals may be constrained in movement or speech such that their proposed/attempted actions are vetted or censored and may be physically prevented if not approved (such societies also typically make the state privy to the individual’s otherwise private domain).

Back to the example:

  • Free speech = The state does not attempt to prevent you from shouting “Fire!” in a crowded theatre, whether true or false.
  • Liberty = If you shout “Fire!” in a crowded theatre, neglectfully or with malicious intent, you may be prosecuted for endangering others’ lives, or simply for impairing the audience’s apprehension of the truth of a dangerous fire1.

Free speech means you may not be gagged, nor may your speech be censored, even with the objective of protecting others’ rights.

Liberty means that whilst you have the freedom to do or say anything, you may still be consequently prosecuted to remedy any rights you may have violated in the process.

What rights can one violate through speech?

  • The right to life, e.g. endangering another’s safety by maliciously inducing an unnecessary panic.
  • The right to privacy, e.g. revealing another’s secrets obtained via burglary.
  • The right to truth, e.g. misrepresenting another’s actions with intent to deceive.
  • The right to liberty, e.g. drowning out the sound of another’s voice without good reason.

So, freedom of speech means that you can say or publish anything anywhere (without censorship). However the equal protection of everyone’s rights means that there may be legal repercussions for doing so, including the likelihood that you may be required to cease and, if possible, remedy or reverse such speech or publication to avoid further prosecution. Continued violation may of course eventually require some physical constraint for a limited, rehabilitationary period.

Note that the infringement of copyright should be discounted as completely unworthy of prosecution, let alone a justification for censorship. Such privileges are not to be found in a society that believes in equal rights.

___________________

1 If you were aware of a fire, but shouted “Fire!” in a sarcastic way to not only avoid being believed, but also to pre-emptively reduce the credibility of any subsequent discoverers of the fire, then you would still be culpable for endangerment despite being literally truthful.

Freedom of Choice to Enslave · Friday April 03, 2009 by Crosbie Fitch

I occasionally encounter people who’ve latched on to constructing an argument in favour of copyright on the basis that it gives people ‘a greater choice of business model’ when it comes to making money from their art. As if this is self-evidently the best of all possible worlds as it maximises individual choice – and freedom of choice is what it’s all about.

It’s not all about choice!

Fundamentally, it’s all about liberty.

Until recently copyright only effectively constrained commercial printers, thus its suspension of the public’s liberty was not generally noticed – the public had little opportunity to print copies, and so rarely encountered a prohibition against such a liberty.

The ‘free choice’ advocates have this strange notion that ‘choice’ and the ‘freedom to choose’ ethically supercedes ‘liberty’, e.g. “I should have the freedom of choice as to whether to keep slaves. Those who believe they can farm economically without them are free to choose to do so today, but don’t repeal the law and take away my choice to use them.”

So when it comes to copyright, they effectively say “I should have the freedom of choice as to whether I suspend the public’s liberty to share and build upon my published work. Don’t abolish copyright and deny me that choice”. They believe they have a fundamental right to choose whether or not to utilise copyright, and that therefore copyright should remain on the statute books, policed and rigorously enforced.

There is no ethical basis to ‘freedom of choice’. It is an ethically vacuous concept that just happens to have the word ‘freedom’ in it. One might as well propose that ‘freedom to beat my wife’ was intrinsically laudable on the same basis, i.e. “Beating my wife is my choice, and I should have the freedom to make that choice”.

Rather than choice, the ethical basis of liberty is about the minimal/natural constraint of everyone’s freedom in order to protect everyone’s freedom. Indeed, that ‘protected freedom’ is what we call liberty. There is no room in liberty for beating wives or granting monopolies.

As I said, copyright was a monopoly that only effectively constrained commercial printers (at those printers’ general consent). Unfortunately, copyright law is written to apply to all, i.e. individuals as well as printing corporations. And today we are all printers – human beings and immortal corporation alike.

In ignoring copyright, the people are asserting their natural right to liberty – that they’ve always had. So there is no argument as to whether one should be able to continue to use copyright to suspend that right. Ethically, one cannot. Practically, one cannot. The unnnatural and unethical privilege is being ignored and rendered ineffective before our eyes. This is not something to rectify with a good counter-argument (or by educating the masses with draconian prosecutions of random individuals).

The only dicussions concerning copyright that remain useful are ‘Business models that work without copyright’ and ‘Protecting the public from unethical litigation, cultural spite, and privacy invasion, by abolishing copyright sooner rather than later’.

Make the right choice: Do not accept the enslavement of your fellow man, nor any imposition upon his liberty, as reward for the publication of your art.

IP Without Monopoly · Wednesday April 08, 2009 by Crosbie Fitch

Freedom of speech means you should be able to say or publish anything at any time – without physical restraint or interference, e.g. censorship.

Liberty means there are repercussions for certain speech, especially authoritative publication, e.g. malicious falsehood, violations of privacy, threats to life.

Thus if you publish the knowledge (obtained by a tip-off from a burglar who snuck into Fred Smith’s bedroom via a poorly secured window and peeked into their sock drawer) that Fred Smith has pink socks, then this is to compound the burglar’s privacy violation.

Fred Smith own’s the colour of his socks, but the colour of his socks is not intellectual property, i.e. it can’t be transferred because it is not identifiable as a distinct/independent work and thus can’t comprise property. However, his socks can be transferred of course, as material and intellectual property, given the sock represents both a material as well as an intellectual work. The colour of the socks comprises part of the intellectual work that the socks represent (their shape, design, weave, fibre, pattern, colour, etc.).

If the burglar had taken a photo of the socks then this would constitute IP theft, since the image of the sock captures a large part of the intellectual work the sock comprises, and is also able to identify the intellectual work.

However, no-one has a natural right to a monopoly, whether in the material design of the sock or its visual appearance. Once you’ve bought Fred Smith’s socks (if he wanted to sell them) you can naturally copy them to your heart’s content – and are also as a consequence able to publicise the fact that Fred sold you some pink socks (if you don’t think your reputation will suffer for such an indiscretion). Then again, if by some coincidence you unwittingly produced a pair of socks that were indistinguishable from Fred’s, well, that’s fine too (however you won’t necessarily know that Fred has a pair just like them).

This is how intellectual property works without monopoly. There are still laws against copying intellectual work, it’s just that they’re restored in alignment with natural law, i.e. you can copy what you privately possess, but not that which someone else privately possesses. Your freedom is not unethically constrained by being prohibited from invading or violating another’s privacy.

But most importantly, your freedom is not constrained due to the granting of unnatural monopolies of copyright and patent to mass producers of copies and devices. Such monopolies are unethical and should be abolished.

Without monopoly, intellectual property is natural, along with natural intellectual property rights.

Jim Bursch said 2971 days ago :

Can Fred Smith give his pink sox to his girlfriend Sally Jones on the condition that she can never give the sox to Fred’s rival, Joe Anderson?

Jim Bursch said 2971 days ago :

Perhaps a better way to frame the question is, Can Fred Smith write a love poem to Sally Jones and give it to her under the condition that she never share it with Joe Anderson?

drew Roberts said 2969 days ago :

Jim, I think the question is still incomplete.

Do you mean Fred gives it wrapped as a present and inside of the present he has a letter stating his conditions?

Or does he tell her that he has written a love poem for her but that if she wants it, she must sign a contract with him with certain conditions before he will let her see it?

Or something else?

all the best,

drew

Crosbie Fitch said 2968 days ago :

Jim, natural rights are inalienable, whereas property (private objects obtained through gathering, creation, or exchange) is alienable. That means you can’t contract away your liberty, but you can contract away your property. However, you can make any conditions you like in a contract. Even so, much as many people mistake them as such, these conditions are not obligations.

You could say in a contract “If you work for me for 30 years, I’ll give you a gold watch”, however, that ’30 years’ is a condition, not an obligation to work (slavery), it’s also unlikely to be regarded as an equitable exchange (probably being a bonus, additional compensation).

So, in answer to your first question, Fred cannot give his socks to someone in exchange for them surrendering their liberty to give them to someone else. However, he could say, “Here’s some socks, and if after twenty years I never obtain evidence that you’ve given them to Joe, then I will give you a bottle of pink champagne”. Alternatively, Fred could say “I’ll lend you my socks on condition you lend them to no-one else, so if I find out you’ve lent them to Joe I’ll require their immediate return”.

The same applies to the second question. Sally cannot ethically surrender her liberty, or freedom of speech, to share her property. So, Fred can’t place obligations on the use of the gift. Fred can lend her the poem and require its immediate return if he finds out she’s lent it or copied it, but he can’t require the return of the copies she’s made (because naturally they’re her property).

However, because copyright has already suspended the public’s liberty to share (to make copies), Fred can effectively permit Sally every liberty suspended by copyright save that of distributing copies to Joe, which effectively obliges Sally to sublicense her copies similarly. Inevitably Joe will end up with copies from someone, but Fred is likely to have a very tricky time finding out who distributed a copy to Joe and prosecuting them for copyright infringement.

Moreover, because copyright has already alienated the liberty to copy, this liberty can now be the subject of contracts, e.g. “If you give me the exclusive liberty to copy your book, I’ll give you $1 for each copy I make.”

It is precisely because copyright appears to enable people to suspend each other’s liberty (or persuade them to alienate themselves from it), that we then get other contracts such as NDAs that attempt something similar, i.e. persuade people that they can and must alienate their liberty to disclose information. Where they go wrong is in presuming that if copyright effectively alienates people from their freedom to copy or publicly perform original works, then this NDA can alienate people from their freedom to publish any information obtained as a result of their employment. They can’t, or at least they can’t do so ethically. In practice employers and employees (and corrupt/incompetent judges) are easily convinced that subject persons break the law should they break the NDA. NDA’s can of course make unauthorised disclosure grounds for dismissal (since continued employment isn’t a right, and can be conditioned on maintaining confidentiality), but they can’t actually make it grounds for prosecution. Contracts cannot create their own legislation.

Crosbie Fitch said 2968 days ago :

Drew, shrink wrap documents aren’t agreements if the property has already been exchanged without them. They may well be licenses, i.e. provide restoration of liberties (suspended by copyright) not specified in the original exchange (and may be conditional). A license is not a contract. However, a license may be available subject to a further optional agreement that may be contained within. And agreement must be voluntary and explicit. It cannot be inferred by any action, even if that action is only permitted by the license. Even an action specified to constitute agreement can’t be taken as agreement if the person would be inclined to do it anyway, e.g. “By installing or operating this product you have purchased you signify your agreement to pay us $10 per annum”.

One can certainly exchange intellectual property through contract, but (aside from copyright and patent), one cannot exchange someone’s liberty to do with it as they please, after all, if you sell your property to someone it becomes their property.

 

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