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Commandments on Creation and Copying · Sunday October 12, 2008 by Crosbie Fitch

I was involved in a wee communication with God the other day, and He told me that actually I had it all wrong, that copyright and patent were wholly justified, had always had His holy blessing, and were pretty much in perfect accord with His almighty will. In fact, He said, He did have a couple of additional commandments that He hadn’t considered Moses would have been quite ready for at the time, but that He would happily pass on to me to convey to the world via my blog – noting that I must of course henceforth obey or face eternal damnation.

As you might expect, He still communicates via an archaic teletype in ‘all caps’, but here are His two commandments that relate to our holy inspiration for patent and copyright:

XI. THOU SHALT MARVEL AT ALL MY CREATION AND IN MY LIKENESS THOU TOO SHALT CREATETHY DESIGN SHALL BE JOINED TO MINE AND ALL UPON EARTH THAT IS MADE IN ITS FORM SHALL BE SUBJECT TO THY WILL, FOR AS LONG AS THEE SHALL LIVE.

XII. THOU SHALT SCRIBE AND SHARE MY WORD, YET THOU MUST NOT SCRIBE, NOR SHARE AMONG A GATHERING, THE WORD OR GRAVING OF THY NEIGHBOUR WITHOUT HIS LEAVE, WHILST HIS BLOOD LAST.

So, there we have it. There are consequently quite a few ramifications for patent and copyright legislation.

Patent is thus supposed to last for the lifetime of the inventor, and is ‘first to invent’, not ‘first to file’. Moreover, it only applies to mortal creations, not the works of God, so at least DNA can’t be patented any more.

As for copyright’s term. This therefore endures until the author’s last remaining descendant dies (which could be a pretty long time, if not immeasurable). On the plus side, at least copyright is not permitted to apply to The Bible.

I did want to explore these ramifications with God a little further and query their feasibility, but unfortunately in a moment of white noise from a passing angel the carrier was lost…

Residual Expectations of Control · Tuesday October 28, 2008 by Crosbie Fitch

The privilege of copyright has been with us for so long (since 1710) that we have come to expect its apparent ability to satisfy our desire to control what other people do with our published work.

Even Creative Commons perpetuates this notion, reassuring us mere authors (as opposed to our corporate publishing agents) that it is at our discretion whether we oblige attribution, collect royalties on commercial use, or govern how other artists may incorporate our art into theirs.

Unfortunately, this reframing of copyright as authorial prerogative simply transfers the mantle of corruption from baron publisher to king author.

The desire for such power may well be a human survival instinct, and commercially valuable if obtained, but in a civilised and egalitarian society power can’t simply be assumed, we need to know where it comes from. Is it inherent (a natural right) or is it unethically extracted from others (a privilege at the expense of others’ rights)?

  1. What power do we actually have by nature as human beings?
  2. Should we collectively invest power in our government to grant additional, superhuman power back to ourselves (some or all of us) in the form of mercantile privilege?
  3. Even if not ethical, is the grant of that superhuman power by the state socially beneficial?

By nature, we can protect our lives and private domains, in concert we can defend the truth, and wilfully we can defend our liberty in all other respects against unnatural constraint.

We grant power to the state in order to protect our rights and those that derive from them.

We do not grant power to the state to grant privileges and boons to those it favours or would be favoured by.

Thus in terms of our intellectual works we should grant the state power to protect our exclusive rights, but we should not grant the state power to privilege our publishers (let alone authors) with reproduction monopolies over published works (however much some of us might hope to indirectly benefit from such a commercially lucrative grant).

The point of this post is to observe that even if one recognises that one has no natural ability to control what someone else does with the art that one has given them, and appreciates that the mercantile privilege of copyright should be abolished, one still retains a few niggling reservations that perhaps there may be some esoteric uses, some obscure situations, in which the power of the state should be brought to bear – to enable the artist to control certain uses in certain situations.

I’m interested to know what these certain uses and situations are.

In what circumstances would an artist sympathetic to cultural freedom wish to retain (even the illusion of) control over the use of their work, e.g. when posting their photos on the web?

Remember:

  1. If it’s an unattributed use, then there’s no hope of control – even publishing cartels are finding it tricky prosecuting the public at large.
  2. If it’s a self-publishing individual user willing to risk prosecution of copyright infringement (with no prospect of a ‘fair use/dealing’ defense), then the self-publishing artist must prepare a significant litigation budget.
  3. If it’s a commercial publisher committing the infringement, then the self-publishing artist must be extremely wealthy, or able to obtain assistance from another publisher or comparable sponsor.

Aside from the privilege of being able to prohibit copies, what rights could potentially constrain use?

  • Life: Your work cannot, or be used to, incite violence or hatred of individuals or a class.
  • Privacy: Your work should not be used, reproduced, or distributed if it has been stolen (removed/communicated from private premises without permission). Your work should not violate the privacy of its subjects.
  • Truth: The artist, their art and any subjects should not be misrepresented, nor falsely implicated, where this impairs the truth.

For example, manipulating a photo to misrepresent a subject as smoking a joint may be fine if overt parody or satire, but not if intended to deceive.

However, when involving taboos of sex or religion things can become a little more controversial.

Superimposing one subject’s head from one photo onto another’s naked body from another photo as a prurient amusement, may be reprehensible, disrepectful, offensive to the subject and their advocates, and bring disrepute to any publishers, but whether it violates anyone’s rights is likely to be highly dependent on the specific work.

Could it incite hatred of the subject or violence against them? Does it violate their privacy by induction? Does it impair the truth by subliminally objectifying the subject in the mind of the viewer?

Things can get tricky when you move from a clear and false implication to a highly viewer subjective, perception of insinuation.

This is why libel laws are highly questionable from a natural rights perspective.

Libel
2 a: a written or oral defamatory statement or representation that conveys an unjustly unfavorable impression b (1): a statement or representation published without just cause and tending to expose another to public contempt (2): defamation of a person by written or representational means (3): the publication of blasphemous, treasonable, seditious, or obscene writings or pictures

Unless it incites violence, violates privacy, or impairs the truth, I understand the concept of ‘freedom of speech’ (and suppose it should be commonly understood) to be speech legally unconstrained by considerations of reputation, obscenity, or other mental offense or anguish to persons or deities.

Fundamentally, the issue is not whether causing unnecessary offense or harm to someone’s reputation is despicable and reprehensible, but whether one has a natural right against it. I don’t know of any evidence that one does. One has no natural power to require that one’s peers discuss oneself only in a positive light and refrain from belittling or derogatory insinuation. One has to rely on opprobrium against unfounded criticism, contempt, and promotion thereof.

I’d be interested if you can give examples of situations or uses that artists should self-evidently retain control over, where those examples don’t involve a violation of the aformentioned rights (life/privacy/truth), nor aren’t simply pursuit of commercial advantage from reproduction monopoly.

The Right to File-Share · Friday November 07, 2008 by Crosbie Fitch

I thought this fairly straightforward exchange on Techdirt put things fairly succinctly:

Anon:

Why should consumers have rights regarding unauthorized file sharing?

CF:

Ahem, people already have the right to liberty (freedom of speech, etc.).

In 1710 (UK) and 1790 (US) the privilege of copyright was created to partially suspend this liberty, specifically the right for members of the public to make copies or derivatives of books that they had purchased. This ‘right to copy’ was then granted to publishers – hence the name ‘copyright’.

So, file-sharers are actually enjoying their natural rights.

Ideally those rights are no longer suspended for the benefit of publishers, but are fully restored to the public, by abolishing copyright.

Anon:

Copyright isn’t bad, in and of itself. The horrible way its been twisted and extended since its initial implementation.. is whats bad. Lets not throw the baby out with the bathwater here. I’m all for people being paid for work, I’m not for the idea of lifetime residuals on a piece of work and complete show stopping powers for derivative work. If people want to sign their rights away and open it up to the public without personal gain, well… thats what CC, GNU, and BSD licenses are for.

CF:

People aren’t signing their rights away, they’re restoring the public’s rights back to them (by neutralising their privilege of copyright to published works and derivatives).

It is actually impossible to sign one’s rights away – this is what is meant by inalienable.

It takes the power of a government to grant privileges that supersede individual rights.

I too am all for people being paid for their work. What I’m not at all for is the people’s liberty being suspended for publishers’ commercial exploitation.

Three Strikes in the Recognition of Fundamental Rights · Tuesday November 25, 2008 by Crosbie Fitch

David Durant via the Open Rights Group brings my attention to Glyn Moody’s post "Three Strikes and You’re Out" Struck Down in which Glynn quotes three salient paragraphs indicating the basis upon which EU Culture Ministers rejected a ’3 strikes’ Internet disconnection penalty for individuals who’d attracted allegations of copyright infringement.

The second paragraph caught my eye:

The EU Culture Council pushed yesterday (20 November) for “a fair balance between the various fundamental rights” while fighting online piracy, first listing “the right to personal data protection,” then “the freedom of information” and only lastly “the protection of intellectual property”.

It at least seems the EU Culture Council has some grasp of ‘fundamental rights’.

However, I wouldn’t have phrased it as a ‘fair balance’ between them.

Firstly:

  • the natural right to privacy delimits the natural right to liberty, of individuals (and anything permitted to corporations).

Secondly:

  • the natural right to liberty precludes the granting or instatement of monopolies that constrain individuals rather than just corporations.

Unfortunately, the EU Culture Council has a very weak grasp of the fundamental rights they appear to be referring to.

  1. ‘Personal data protection’ is presumably a rather oblique reference to privacy and is liable to become confused with the misguided movement to confer unnatural copyright-like constraints over sensitive/personal data post-disclosure.
  2. ‘freedom of information’ is probably a clumsy reference to ‘freedom of speech’ and is liable to become confused with the issue of government transparency.
  3. ‘protection of intellectual property’ is actually a matter of securing natural exclusive rights and primarily concerns the right to privacy. It is commonly abused to refer to the enforcement of mercantile privileges that are granted to the publishers of intellectual works (copyright and patent).

The EU Culture Council would have done far better if they’d stated instead that “Whilst individuals’ privacy rights should remain protected, their right to cultural liberty, to exchange and build upon published works, should not be abrogated by the reproduction monopolies permitted to corporations”.

In other words, laws and regulations governing corporations can do whatever those who would meddle in their markets would like, but only as long as they don’t impinge upon human rights – especially privacy and liberty. Corporations should certainly not be granted monopolies that constrain individuals.

Unsurprisingly, it seems that corporations have a similarly indignant attitude, and believe that human rights are fine as long as they don’t interfere with their state granted monopolies.

So, who’s more important? Corporation or human being?

Which class of entity best keeps EU Culture Ministers in the life to which they would be accustomed?

We’ll find out the answers in due course.

To Communicate is To Copy · Monday January 12, 2009 by Crosbie Fitch

If two joggers wearing portable CD players meet, and one gives the other their CD of Barry Manilow’s Greatest Hits, and the other reciprocates with their CD of Cher’s Greatest Hits, then each jogger still has just one CD each.

However, if two basket weavers meet at a market, and each, in admiring the craftsmanship of the others’ work, agrees to weave the other a replica of the one basket they each have left, then they both end up with two baskets each.

So, clearly, with material handicrafts, exchanges are more productive, whereas with intellectual works and digital technologies they are not.

Well, this is the counter-conclusion to the frequently quoted George Bernard Shaw aphorism: “If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.”

The point about sharing or communicating ideas is that it involves copying. We do not yet have the technology to manufacture copies of apples as easily as we may manufacture copies of baskets.

  • Exchanging intellectual works, or ‘communication’, is typically accomplished by copying rather than movement – because copying is usually cheap.
  • Exchanging material works, or ‘barter’, is typically accomplished by movement rather than copying – because copying is usually expensive.

An exchange simply means that two parties each perform an action as part of what is usually agreed to be an equitable transaction, where each party receives something from the other. Whether copies are produced in the exchange is coincidental, and simply indicates that productive labour took place rather than only transfer of property.

The only peculiarity of ideas (as opposed to any externally fixed intellectual work) is that while they may be copied (given comprehendable explanations), they are almost impossible to remove from the possession of their owners, except perhaps by induced amnesia or hypnosis.

So, apart from the inaccessibility of human minds, there’s no magic in communication (copying) vs barter (moving).

Given the absence of magic in copying, we can instead wonder at the motivation for quoting Bernard Shaw’s aphorism.

The quote is typically used to suggest that intellectual property is an oxymoron or that (given copying is facially productive) there can be no such thing as theft of intellectual property. For example, if you steal my one basket, I have no baskets, whereas if you steal a copy of my CD, I still have it. This is to misunderstand the wrong in stealing. The rights violation is not simply to diminish someone’s property, but to violate their privacy (property derives from the right to privacy). The logical remedy is to undo the violation, i.e. to return the material or intellectual work removed (including any copies manufactured).

Thus if you had instead burgled my private workshop to make a basket with your own materials that copied my new, secret basket design, despite no material theft this would still be stealing, i.e. theft of my intellectual work in my private possession, theft of my intellectual property, violation of an inventor’s exclusive rights to their designs. It doesn’t matter that you are productive in your act of stealing a copy you’ve made.

Just as it is invalid to say that productive theft cannot be stealing, so it is also invalid to say that infringements of privileges are stealing. If you buy a CD recording of a concert you attended and make a copy of what is your own property, you have violated no-one’s privacy. There can be no theft – whether of material or intellectual property. You may be infringing someone’s privilege (of copyright), but that is not theft.

As for the violation of exclusive rights (as recognised of authors and inventors by the US Constitution), this requires removal, communication or copying to occur across the boundary of a private domain (without the owner’s permission), although this can be abetted by further distribution of the intellectual property so stolen.

We should conclude that communication can violate rights in only the following ways:

  1. It constrains another’s liberty (drowns out another’s speech)
  2. It impairs the truth (deceives or misrepresents)
  3. It commits or abets a privacy violation (distributes stolen IP)
  4. It jeopardises life (incites violence)

Communication is the copying of information. Human communication is speech, and moreover the liberty to communicate is a fundamental right not only necessary for the individual, but also for cultural exchange. It cannot be abrogated to create a transferable privilege for the commercial benefit of printers. That said, immortal coporations having no rights may be regulated and subject to such monopolies if a government can demonstrate this as being beneficial to its mortal citizens.

Therefore, as long as no rights are violated, any copyright infringement that occurs in an individual’s communication cannot render their act unethical. Moreover one could say that such copyright infringement is ethical.

Steve R. said 3174 days ago :

Good write-up. Takes a bit of thinking, which is good. This appears to be your central theme: “The rights violation is not simply to diminish someone’s property, but to violate their privacy (property derives from the right to privacy).” Seeing this is very helpful, as most people (including me) normally view property rights as evolving out of scarcity.
You also make a very valuable observation with: “If you buy a CD recording of a concert you attended and make a copy of what is your own property, you have violated no-one’s privacy.” One of the things that has bothered me with ongoing copyright aggrandizement is that copyright holders, in some situations, now claim licensing fees for items that are in public’s view, such as buildings or cars. For example you take a picture where a building is in the background that is incidental to your photo-shoot of a model. The building architect then claims that you own him a licensing fee. If you put something out where the public can see it, you are forfeiting some of your rights.

Crosbie Fitch said 3171 days ago :

Seeing this is very helpful, as most people (including me) normally view property rights as evolving out of scarcity.

Yes, scarcity is a bit of a red herring. Just because it is cheap to tell a secret to the world, or communicate someone’s original art or invention, this does not sanction stealing it, nor does it negate the need for restitution in the event of theft. Moreover, the voluntary sale thereof should be an exchange for money or equivalent goods, not the commercial exploitation of the public’s suspended cultural liberty (nor their taxation).

The scarcity/infinite reproducibility argument, just as copyright, is spawned from focussing too closely on the value of copies or the cost of their manufacture, rather than the ownership and value of the intellectual work so copied.

I believe the best argument concerning intellectual work is to be found by looking at the rights of the matter, primarily the right to privacy of the individual creator/owner of intellectual works (intellectual property), and the right to liberty of the individual to share and build upon their intellectual property (works created, purchased, found, or been given, but not stolen).

If you put something out where the public can see it, you are forfeiting some of your rights.

You never forfeit your rights. Rights are inalienable. Your liberty may be temporarily suspended as a remedial measure if you persist in abusing it to violate the rights of others, but the right remains even so.

As for publicly visible aspects of one’s otherwise private material property, you only have a natural right to control that which is naturally in your private domain, i.e. your material and intellectual property in your physical sphere of influence that you are naturally able to control through your physical possession and bodily power to exclude others from. Logically, if something is naturally visible to the public (with no reasonable expectation for it not to be), its image cannot be private, and no individual can expect to control what any member of the public may do with what they can naturally see (as long as their actions do not violate rights, e.g. to truth). So, there’s no natural right to prevent anyone else copying the look of one’s house, whether architecture or exterior decoration.

Copyright and patent derogate the individual’s right to liberty (and privacy) in order to create commercially valuable monopolistic privileges for the benefit of publishers of authors’ original works and manufacturers of inventors’ novel mechanisms. The problem for publishers and manufacturers is that mass production facilities are now in the hands of the people, and the people are bemused to find their liberty to use their own means of production has already been sold (by a state not empowered to do so). Naturally, the people want their liberty back, and will steadfastly refuse to recognise the validity of the anachronistic privileges of copyright and patent that require its unethical suspension.

Steve R. said 3171 days ago :

My use of language, such as “forfeit” is probably less then precis. I fully agree that:“Logically, if something is naturally visible to the public (with no reasonable expectation for it not to be), its image cannot be private, and no individual can expect to control what any member of the public may do with what they can naturally see (as long as their actions do not violate rights, e.g. to truth).”

Steve R. said 3169 days ago :

Here is an interesting article on the abuse of copyright from TechDirt: HBO Forcing Takedowns Of Privately Filmed Videos Of Obama Inauguration Concert.

Crosbie Fitch said 3169 days ago :

I wonder what president Obama thinks of the idea that citizens should not have the liberty to publish their recordings of his inauguration?

Free speech as long as you have permission from the corporate copyright holder eh?

Laurel L. Russwurm said 2462 days ago :

Since all so called “Intellectual Property” works created by the American government is immediately released into the public domain, how could the Inaugural Committee have given HBO the right to exclusivity of this event?

The inauguration would itself be in the public domain, so even if HBO was granted permission to film the event themselves, it wouldn’t follow that they would have any right to any films made by other citizens.

With the clarity afforded by hindsight, here and now as we near the close of the year 2010, I would venture to suggest President Obama’s vigorous prosecution of ACTA would indicate he probably had no objections to HBO’s actions.

A Natural Right to Sing Billy Bragg's Songs · Sunday October 25, 2009 by Crosbie Fitch

On the new a2f2a website Billy Bragg asks me “Why do you believe you have a natural right to share and build upon the published music you receive without having to seek permission, or pay any tax or royalty?”

To me this is akin to asking me why I believe the Earth is spherical.

It is not an unreasonable question, especially if we simply take what we’ve grown used to at face value as ‘the way things are’. Consequently, for the Earth to be flat doesn’t seem particularly unnatural. However, if you take any time to investigate things in depth, just as you realise that the Earth can’t possibly be flat, you realise that one can’t possibly have a natural right to prevent others making copies of anything that you give to them.

Just as a basket maker has never naturally been able to prevent those who purchase their baskets from making copies or using them to carry silver without a cut, so a songwriter or musician has never naturally been able to prevent those who hear their songs or tunes from singing or performing them, or doing so for money without royalty. It has always taken a potentate and their police force to do such things, e.g. prohibit the wearing of imperial colours or collect a levy on wine. Individuals naturally born as equals are not born with such a privilege of dictating what other people may or may not do with the things they have made, purchased, or discovered (irrespective of similarity to, or provenance from, any other). Even the power of collecting a tithe, levy, tax, or royalty takes the power of a church, baron, or king to achieve.

Natural rights are those powers or abilities to defend their interests that individuals are born with (as equals), i.e. the power to protect their lives (their bodies), their privacy (and the possessions within it), the truth (their apprehension of it against deceit or impairment), and their liberty (against the will of others). Rather than solely relying upon each individual’s physical strength these natural rights are supposed to be additionally and fairly protected by a government empowered by the people precisely for this purpose. Such a government is not empowered to grant privileges (though sadly, by dint of the power they can assume, they do anyway).

In 1710 Queen Anne suspended from individuals’ natural right to liberty their right to copy or perform the original works of others. This right to copy was reserved as a transferable privilege initially attached to each original work, hence ‘copyright’. In effect the individual’s inalienable liberty had been alienated from them by the state to serve both the state’s interest in seeing political expression controlled, and the interest of the stationers’ guild in continuing their members’ monopolies (especially as legally enforceable). Neither state nor guild was interested in their power or profits being undermined by the propaganda or piracy of an uncontrolled press.

Three centuries later, we are still born with the natural right to copy or perform the original works of1 others, but there now exists a privilege known as ‘copyright’ that enables the holder thereof to exclude us from doing so. Government via the police protect our natural rights, but they do not protect privileges. This is why the police aren’t supposed to arrest people for singing songs against the copyright holder’s wishes or making recordings at concerts and selling copies thereof. The responsibility and expense of policing and asserting their privilege is entirely that of the copyright holder. Well, it has been until relatively recently. The publishing corporations are lobbying for their privilege of copyright to become as protected by the state as any natural right of an individual. Such privileges are also known as legal rights, since whilst they appear to recognise a right, that right does not arise in nature (to be protected by law), but arises only from the law itself (protecting the state’s, crown’s, or lobbyists’ special interests).

So, all discussion of the legal rights artists may still need or those that might remain lucrative to them, even if copyright’s ability to exclude unauthorised copies is largely ineffective, are misguided. Ethically, people can only ask for the protection of the natural rights they have, not those privileges they may covet or believe they need to make a living. They should certainly not be tempted to adjust one privilege into another, e.g. if one’s privilege is no longer able to prevent copies made by another, one should be given the privilege of extracting a royalty from another, if their business involves the use of one’s work.

The distinction of natural right from state granted privilege is not new thinking, but was well known even as the US Constitution was being framed in 1787. See the WikiPedia entry concerning the work Rights of Man by Thomas Paine:

Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few . . . They . . . consequently are instruments of injustice.

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.

The US Constitution correctly recognised that authors and inventors have a natural exclusive right to their writings and inventions (where exclusive – deriving from the individual’s natural right to privacy). However, while this right should certainly have been secured, it should never have been extended or substituted with the grant of monopolies. It just goes to show how appealing monopolies are to those interested in them that they were legislated anyway (in 1790), in spite of the Constitution.

What we see today is that copyright is not only a privilege that conflicts with individuals’ natural rights (their cultural liberty and freedom of speech), but a privilege that conflicts with the very nature of information and its communication. It is simply not possible (even for the state, let alone an individual), to remotely constrain the distribution of intellectual works, because it is not possible to remotely constrain the communication and diffusion of information (despite the snake oil that is DRM).

So, it is foolish to suggest either that copyright’s term is shortened (to 28 years, 28 weeks, or even 28 days later), or that those whose business may be seen to benefit from the use of another’s work should pay a share of their earnings. Such privilege is preposterous and an offense against both nature and man. It is a protection racket of those already corrupt and powerful, or of those who have become corrupted by unnatural power.

We earn a living from our work by exchanging it with the work of others, voluntarily. Money=work. There’s nothing wrong in exchanging our labour, in selling the music we make or the copies we make of others’. What’s wrong is in being unnaturally able to prevent anyone else doing so, or being able to demand a royalty. What we have a right to is the free exchange of our work or possessions (liberty). We do not have a right to give our work away and then demand payment for its possession, use, or reproduction. Such a ‘right’ would be appealing, but nature has not seen fit to imbue us with it.

Without unnatural monopoly, we’re still left with the natural ability to sell our music, and the ability to make and sell copies of it. However, there is no market for copies that people don’t need to buy (that a monopoly can no longer prevent being made). The market for musicians is in making music that people want to buy (in preference to, or in addition to, making their own).

The market for copies has ended. The market for music continues unabated. There is neither need nor sanction for monopoly or any other privilege.

I and umpteen thousand others may pay you a penny to write or sing a song, and you may consider that an equitable exchange. However, my audience can also pay me to sing that song and I don’t owe you a penny – naturally. That’s how it used to be, and that’s how it should be. We just have the embarrassment of three centuries in which we put up with a state granted privilege that had it otherwise.

_________________________

1 That’s ‘of’ as in ‘authored by’, not as in ‘owned by’. It is an unfortunate ambiguity of the English language that possessive prepositions and pronouns are used for authorship/paternity as well as ownership or physical possession, especially when there’s considerable interest in some quarters for the meanings to become permanently conflated.

Ibutton77 said 2891 days ago :

(assuming it gets moderated in) I have commented on this thread:
a2f2a.com/2009/10/19…

Say, Billy mentioned making a new thread for discussing copyright. Do you know how one could find that Crosbie? Also, anywhere there did you link back to the answer you supplied here?

Crosbie Fitch said 2891 days ago :

Good comment. The penny rhyme is apposite.

There’s a copyright category and a thread The question of copyright.

I didn’t link back to the answer I supplied here, no.

Against vs For IP - Forever · Monday December 28, 2009 by Crosbie Fitch

I see in IP: The Objectivists Strike Back! that Stephan Kinsella, that notable IP nihilist, is persisting in his indulgent philosophical war against IP maximalists (especially those ‘objectivists’ or Randians who would corrupt the meaning of liberty into its opposite).

I think the dispute will remain interminable when it exists between those IP maximalists who believe intellectual property exists supernaturally (independent of the individual’s physical possession), and those who don’t recognise intellectual property at all (IP nihilists).

Property derives from the individual’s natural right to privacy, from their natural ability to exclude others from their personal space and possessions. Anything more requires power beyond that of the individual (that of a government or god).

So, naturally, intellectual works can be property as much as any material work – when the aspect of ‘property’ is properly recognised as deriving from the individual’s privacy. A novel is the IP of the author by dint of it being created within the author’s privacy. However, unless stolen (violation of privacy), there is no natural means by which the author (or an assign) can claim as their property all copies or derivatives made by others (nor even independently created works coincidently similar).

Only unnatural privileges can attempt such a folly, i.e. copyright and patent.

Unfortunately, IP nihilists and IP maximalists enjoy a tediously symbiotic relationship with each other because both can easily demonstrate the argument of the other as unsupportable (as they clearly are). In failing either to recognise that people naturally own the intellectual works they possess, or to recognise that people cannot have a supernatural ability to retain ownership of all likenesses wherever they may spring into existence in the universe, their conflict will remain interminable, a religious war removed from reality. They only know the other is wrong, but cannot recognise the wrong in their own position.

To resolve the true nature of IP it is necessary to recognise the self-evident existence of an individual’s natural exclusive right to their writings and designs, the obvious power an individual has to protect their intellectual works as their own property, and their natural right to prevent others copying them (which should be recognised and secured by an empowered government). However, even more importantly, it is necessary to recognise that this natural right is NATURAL.

That means an individual only has an exclusive right to that which is naturally exclusive to them. It is an offense against nature, the natural laws of information, and an individual’s freedom of speech to grant a reproduction monopoly to anyone that pretends they can prevent other people copying the works that have been voluntarily disclosed to them, or making and distributing works they have independently created that bear a resemblance to those of the monopoly holder.

There is no ethical sanction to thereby suspend the people’s cultural or technological liberty, even in pursuit of greater industrial prosperity, just as there is no ethical sanction to enslave individuals to the same end.

Creator's Rights? · Wednesday March 10, 2010 by Crosbie Fitch

Jim Killock of the ‘Open’ ‘Rights’ Group (ORG) falls into the trap set by publishers in terming their 18th century privilege of a reproduction monopoly as a ‘right’ (omitting ‘legally granted’ to insinuate ‘natural’).

In his comment of March 10, 2010, 11:57:57, Jim Killock appears to believe copyright is a creator’s right and should revert to that individual artist rather than the record company that they signed with.

On the other hand, I can think of several instances where we’ve backed creator’s rights. In the term extension debate, we strongly argued that rights should revert to artists, not record companies, even within the existing term of sound copyright.

We also argue very strongly for a parody exception in copyright, which to our mind is a ‘creator’s right’, and much of the highly valuable comedy sector would benefit from legal certainty.

In our response to the P2P consultation, we argued that license deals were being blocked by the major rights holders (not the artists themselves), and this is depriving artists of the income they deserve.

I suppose Jim therefore believes that a ‘creator’ could sell their right to make a parody?

It is the right to make a parody that in some jurisdictions is suspended by the privilege of copyright. However, you can’t have it both ways. If you’re going to call copyright a creator’s right then obviously it already includes the ‘right’ to make a parody. So, why make an exception in copyright if copyright is already a creator’s right?

If copyright is a creator’s right then making an exception for parody because that really is a creator’s right seems to be redundant.

Jim is going to be very confused (as is ORG and its members) if it keeps on using the term ‘rights’ for both privileges and rights.

Here are a couple of clues to tell the difference between a ‘right’ and a right.

  • If it can be sold, transferred and/or held then it is a privilege or ‘right’ as some confusingly prefer to term it (qv Rightsholder).
  • If it is something that the individual is born with, that all individuals have equally, that like a shadow no individual can sell or otherwise be alienated from, then it is a (natural) right, e.g. the right to life.

Unscrupulous legislatures can of course still make laws to suspend an individual’s rights (derogation) in order to grant privileges, such as the granting of copyright and patent in the 18th century, and as ACTA requires to be granted in the 21st. Incrimination upon accusation?

I posted an explanatory follow up comment to Jim’s, but at the time of writing it has not yet passed moderation:

Jim, copyright is not a creator’s ‘right’ in the same sense as ‘right’ in ‘human right’. If it was a natural right instead of a legally granted right it would be inalienable and the individual wouldn’t be able to sell it to a record company. There wouldn’t therefore be any conception of it reverting.

Legally granted rights, or privileges, necessarily involve the state’s suspension of the individual’s respective natural right. So copyright (granted for the exploitation of the press) involves the state’s suspension of all individuals’ natural right to copy (even the musician has lost their right to copy their own music – they may choose to retain the privilege to do so of course, instead of selling it).

This is why ORG cannot claim to be about protecting the individual’s rights if it also attempts to protect privileges granted for the purposes of exploitation by manufacturers of copies such as record labels and other publishing corporations.

The right to make copies does not belong to the creator, but to the people – they are the one’s who’ve had their right suspended, and it is to them the right should revert, to be restored. That’s why a lot of people have the idea that copyright should only last a couple of decades – a commercially lucrative monopoly, at the end of which the public’s suspended liberty to make copies would be restored.

You’ve got to recognise the difference between protecting and restoring the individual’s rights, and protecting and reverting privileges attaching to original intellectual works.

Are you the Open Rights & Privileges Group, or the Open Rights Group?

And as Rob suggests, the ‘Open’ bit may need some attention too.

I’ve now added:

We’ve had copyright for such a long time that its proponents’ use of ‘right’ as a contraction of ‘legally granted right’ has conflated and corrupted the original 18th century meaning of right as a natural right.

The following excerpt from Wikipedia’s page on Thomas Paine’s Rights of Man seems to put the difference between ‘right’ and right most succinctly:

Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few . . . They . . . consequently are instruments of injustice.

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.

Thus: The Statute of Anne, by annulling the (natural) right to copy (that is inherently in all the inhabitants), in the majority, leaves that right, by exclusion, in the hands of a few (copyright holders). The privilege of copyright is consequently an instrument of injustice – held in the hands of a few.

You cannot understand copyright in the 21st century in terms of ‘right’ because the term ‘right’ has itself become corrupted by the privilege it is now used to describe.

Tom said 2756 days ago :

You are an extremely lucid thinker and writer, and this is one of a few really worthwhile blogs I’ve come across on this subject. I’d also include openrights.org in that list. Speaking of which I replied to your comment @ www.openrightsgroup….

I look forward to reading your next entry, particularly if it is going to contain more of the meat on your proposed open business model(s).

Questioning Copyright · Thursday August 18, 2011 by Crosbie Fitch

In order to understand the conflict between the publishing industry’s 18th century privilege of copyright and the emancipating cultural liberty of the information age, we need to understand copyright’s history.

But, more important than the history of copyright or the law that created it, we need to understand rights.

Here are some questions for those who have already started to question what they’ve been taught about copyright in school, or elsewhere by the media, music and movie industries, and want to understand.

What is the most important thing to know about rights?

Rights precede law.

Our rights are not created by law.

Our rights are imbued in us by nature.

We, the people, create law to recognise our rights, and create and empower a government to secure them.

What are our rights?

Rights are the vital powers of all human beings.
We have rights to life, privacy, truth, and liberty.

  • We have a right to life, to protect the health and integrity of our minds and bodies.
  • We have a right to privacy, to exclude others from the objects we possess and spaces we inhabit.
  • We have a right to truth, to guard against deceit.
  • We have a right to liberty, to move and communicate freely.

How then did government create a ‘right’ to prohibit copies?

No people creates a government to abridge, annul, or derogate from their rights in the interests of a few – or in Orwellian NewSpeak, the greater good.

However, a government is in a position to assume power beyond that provided to it by the people.

A government can assume power to derogate from the people’s rights in order to privilege a minority.

Indeed, these privileges, so called ‘legal rights’, are now so pervasive in society that we must qualify the rights we were born with as natural rights.

So, what is copyright?

What we call ‘copyright’ is an 18th century privilege.

It was granted by Queen Anne in her statute of 1709 for the ulterior benefit of the crown and its Stationers’ Company, so that the de facto printing monopolies established by the guild during its control of the press could become law.

The Stationers’ Company resumed enjoyment of its lucrative monopolies and effective control of the press.

The crown resumed its ability to quell sedition via indirect control of the consequently beholden press.

Why was this Statute of Anne wrong?

Privileges are unconstitutional, inegalitarian, and unjust.

Paraphrasing from Thomas Paine’s ‘Rights of Man’, the liberty and right to copy is, by nature, inherently in all the inhabitants, but the Statute of Anne, by annulling the right to copy in the majority, leaves the right, by exclusion, in the hands of a few – or, as we term them today, ‘copyright holders‘.

Consequently, copyright, as any privilege, is an instrument of injustice.

What is the consequence of granting copyright?

Copyright is now a cultural pollutant and has effectively created cultural gridlock. Today, individuals face jeopardy in any significant engagement with their own culture.

Morever, copyright fools the very same people into believing they have a natural right to control the use of their work.

Although we have privacy, the natural exclusive right to prevent others copying our work whilst it is in our possession, this does not provide us with the power to prevent others making further copies of what we give to them.

Such unnatural power is only provided by copyright, because that annuls everyone’s liberty and right to copy, leaving it in the hands of the copyright holder to restore by license.

Even so, to prosecute the privilege, to detect and sue infringers, can be very expensive, and tends to require the wealth and economies of scale of a large copyright exploiting publisher.

But then why has copyright lasted so long?

In the 18th century the press could be controlled.

In the last couple of centuries, when printing presses were relatively few and far between, the state and publishers, via their crown granted privilege, could expect to police and control the press.

Why can’t copyright work today?

Today, the press is us, the people

Today, we are all authors, all publishers, all printers.

We, the people, are the press.

To control the press is to control the people – a people supposedly at liberty.

What is the current approach to making copyright work?

The people are being ‘educated’ to respect copyright through draconian enforcement – severe punishments of a few as a deterrent to the many.

  • 2005: Jammie Thomas-Rasset, 28, mother of 4, shared 24 files. Found liable for damages of $1.9m.
  • 2005: Joel Tenenbaum, 22, shared 31 files. Found liable for damages of $675,000.
  • 2010: Emmanuel Nimley, 22, iPhoned 4 movies and shared them. Sentenced to 6 months’ jail.
  • 2011: Anne Muir, 58, shared music collection. Sentenced to 3 years’ jail.
  • 2011: Richard O’Dwyer, 23, linked to sources of illicit copies. Faces extradition and prison sentence of up to 10 years.

Not only are publishing corporations trying to subjugate the people through extortion, intimidation, and fear, but the state is complicit, interested, as ever, in both pleasing their sponsors as well as quelling sedition.

Will we ever learn to respect copyright?

Mankind’s cultural liberty is primordial.

Our liberty, our natural right, our power and need to copy has never left us.

Our right to copy may have been annulled by Queen Anne, but youngsters are finding out every day that they innately possess the ability and instinctive need to share and build upon their own culture.

We will never learn not to copy, because to learn is to copy, and we will never stop learning.

Copyright is a historical accident, a legislative error made in a less principled era.

It is time to rectify that error, not the people.

Is that my mission then, to abolish copyright?

No.

Copyright should be abolished, and the people should have their liberty restored, but my mission is not to abolish copyright.

My mission is, and has always been, to answer this question: “How can artists sell their work when copies are instantaneously diffused upon publication?”

Or putting it slightly differently:

“How can artists exchange their work for money in the presence of file-sharing, which effectively renders the reproduction monopoly of copyright unenforceable?”

The solution is the question.

Artists must exchange their work for the money of their fans directly – in a free market.

Artists can no longer sell their work to printers in exchange for a royalty of profits on monopoly protected prices.

The monopoly of copyright is no longer effective.

Its artificial market of copies has ended.

So, what is copyright’s future?

Copyright is an unethical anachronism. It still works as a weapon with which to threaten or punish infringers (with or without evidence), but even with draconian enforcement, the monopoly has ended.

When privileged immortal corporations collide with a population naturally at liberty, the latter will prevail, however draconian their ‘education’ by the former.

Nevertheless, without copyright, natural rights remain, e.g. an author’s exclusive right to their writings, truth in authorship, etc.

Moreover, the market for intellectual work can continue quite happily without a reproduction monopoly. Indeed, it will thrive.

_______________________________________

Have more questions? See QuestionCopyright.org

Want more answers? See The Surprising History of Copyright and The Promise of a Post-Copyright World by Karl Fogel.

This article was previously published at ORG zine.

Further reading: The 18th Century Overture – A Crescendo of Copyright – Natural Finale and Reprise

Shii said 2220 days ago :

“Our rights are imbued in us by nature.”

What exactly does this mean? It sounds like a bunch of nonsense to me. I can say I have the natural right to a pony if I want, that doesn’t make it true.

Crosbie Fitch said 2220 days ago :

“Our rights imbued in us by nature” means that a right isn’t something we individually or collectively say we have, or decide we should have.

To discover our rights we must examine our own nature, we must determine what power nature has given us individually, and how it is balanced among all individuals in equilibrium (harmony).

A natural right is an individual’s natural power in equilibrium. A right is not the power of a strong man to crush a weak girl, but the equal power of all individuals to protect their lives, their bodies from harm, their dwellings from intruders, etc. Thus, a strong man may have more physical power in his body than a weak girl, but the strong man has the same right to protect his body as a weak girl has.

Powers given to people by the state, or by the crown as with Queen Anne in 1709, do not occur in mankind by nature. Whilst we have the natural power and right to prevent burglars stealing or making copies of our possessions, we are naturally unable to prevent our audience of a thousand singing the songs we sing to them, re-telling the stories we tell them, or making further copies of the pictures we sell to them. Indeed, people have a natural power and right to share and build upon the cultural and technological works they have. It is this right to copy, that we all have by nature, that was annulled by Queen Anne in 1709 to leave it, by exclusion, in the hands of a few – holders of our right to copy – copyright holders.

Julián Landerreche said 2217 days ago :

A few days ago, I were discussing this topics with my brother, and he noted the same sentence that Shii remarked and then he asked a similar question: why (or according to what) does the article’s author consider that this are the natural rights?

Crosbie, in your reply to Shii, you added:

It is this right to copy, that we all have by nature.

Why isn’t this right to copy listed with the other 4 fundamental rights?
May it be because the “right to copy” (and, by extension, the “right to do something that doesn’t violates other’s rights”) is a right derived from the “right to privacy and the right to liberty”?

Crosbie, your reply to Shii definitely shed some light on the topic of natural rights, but it also triggered some new thoughts on me.
I can agree that the 4 natural rights you list are pretty self-evident and very simple in their definitions, although, as most things constructed by words, there is an inherent flaw of semantics & interpretation.
Should that semantic issue be disregarded? Can we set & agree on a common base of significances? Are this 4 natural rights similar to axioms on logic & geometry? Or are we falling into great reductionism?

Julián Landerreche said 2217 days ago :

Crosbie’s reply to Shii also led me to note that, although the 4 natural rights may be imbued in humans by nature, it’s not until the human being reaches some kind of physical (and cultural?) maturity, that the human being can exercise his natural rights and use his natural powers.

It’s also pretty evident that a human baby cannot exercise/protect his natural rights, not even the very basic right to life. The baby must rely on someone else (a human adult, probably one of his parents) to survive during his early years of life.
Of course, this could be seen as a POV issue: the baby exercises his right to life by crying and asking for food.

This led me to two questions:

  • may it be that what we call “natural rights” are just “acquired/developed abilities”?
  • that this “need to rely on parents for survival” is what, eventually and for the whole mass of individuals (society), developed into a “parental state”?

Crosbie Fitch said 2217 days ago :

Julián, to your first comment:

Rights may be enumerated, but the enumeration doesn’t create them, it simply recognises them.

Natural rights are self-evident, i.e. recognisable and demonstrable through an analysis of Homo Sapiens as a gregarious being in equilibrium with his fellows and environment.

The enumeration and nomenclature does not determine rights. We have a right to copy, not because it has previously been named and enumerated, but because it is self-evidently within our vital powers, within our right to liberty. We have been copying each other for aeons, and have evolved to do so, as any animal copies its parent. It is only upon a certain guild’s wish to excise this act from citizens’ liberty that the right to copy is singled out for identification, that it may be annulled in the majority by Queen Anne in 1709.

As to semantics, no. Rights are defined by nature (of the human being), not by the words we use to define them. The enumeration of rights simplifies our understanding and discussion of them. We could collapse life and privacy into a single right, e.g. ‘personal space’. But there is an observable boundary between the interior space of a body and its exterior space, and there is an according change in their nature. It is a sensible demarcation to divide this into life and privacy. As much as there is reductio ad absurdum, so there is entia non sunt multiplicanda praeter necessitatem. Four natural rights from which a panoply of others can be derived enables manageable discussion.

Crosbie Fitch said 2217 days ago :

Julián, to your second comment:

Remember that rights are equalised powers, thus a weak child has as equal a right to life as a strong man.

That a child may be dependent upon their parent does not diminish their rights.

Rights are ‘acquired/developed abilities’ only in as much as Homo Sapiens has evolved from something akin to an amoeba.

One can create a government to protect rights, though anarchists argue that one can protect rights without needing to do so. One can also create a government and through taxation engineer a somewhat paternalistic state, e.g. healthcare, education, etc.

dev said 2182 days ago :

You are on both sides of the fence at once here. We have the natural right to copy, then in a Deazly article there is no natural right to copy. Artist should sell directly to their fans, but the fans are the press now with unlimited right to copy – how is the artist supposed to make any money if the value is instantly voided once the fans get their hands on the first copy and spread it? Give it up, we need copyright. You just don’t like the idea of big corporations owning those rights. Well, if you are an artist don’t sell the rights away. Simple.

Xen said 2071 days ago :

Do not forget that any economic system (or any system of thought) is circular in its reasoning for justifying its principles. This economy is based on separation of property into individual ownership, protection of these boundaries, and animosity between owners in trying to obtain more property. Because we separate our property, we introduce scarcity into the system. Together, we have everything, but individually we often lack. Scarcity is then required to keep the system functioning. If there were abundant supply of anything, prices would drop and we would lose our ability to earn money and thus to survive. Abundance is our enemy. We can only sell our work if there is a limited supply of it, or, in the absence of that, we limit our supply ourselves.

Digital piracy is the key subverter and revealer of this system. Piracy shows that our system is not in line with truth. It cancels our suppositions and reveals them to be false. Abundance is natural and our system is at variance with what is natural.

There will never be a human rights-friendly solution to the copyright issue so long as this economic system, and the mindset that creates it, is in place. Abundance subverts the very foundation of our economy and it is meant to subvert it, because it is truth. Rather than subverting it, it simply cancels it. But the system will fight to protect and prolongate itself. Digital piracy alone is not enough to cause any big dent in the system, because it only pertains to information. But it shows us the path forward.

You can forget about any direct trading system that is based on the same principles that the greater system is based on, for artists to make enough money and earn a decent living. Artists that follow the path of scarcity in their minds and hearts will not thrive when scarcity is unenforcable.

Do not bite the hand that feeds you. First make sure you are being fed by another hand, then bite the old one.

James Rule said 1973 days ago :

so the right of a person to control the revenue generated from work they created, & to control how is copied is subjugated by the rights of the masses to have access to this work?

Your argument re the queen Anne Statue is pure obfuscation. with the enormous number of outlets available today, it is completely irrelevant. It has been whittled away overtime by democracy & free communications. Do people currently abuse copyright? yes, does this make copyright an invalid concept? no.

Crosbie Fitch said 1973 days ago :

James, you may well prefer to believe that the author is born with a right to prohibit copies of their published works and that pirates are trampling it into non-existence. However, an understanding of natural rights and/or the history of copyright will show you that the right to copy is inherently in all the inhabitants, but that the Statute of Anne annulled it in the interests of crown and Stationers’ Company.

We are all born with the right to copy – today as well as prior to 1709. It is merely a law that says otherwise, that this right should be annulled and held, by exclusion, in the hands of ‘copyright holders’ for their commercial exploitation.

It is not that people abuse copyright, but that copyright abuses people. It is an instrument of injustice to be abolished, not to be supported.

Even if the majority vote for slavery this does not make slavery ethical. Natural rights precede government, and unlike government, are not subject to democratic modulation. This is why natural rights don’t tend to appear in educational curricula (they undermine the state’s assumption of power), though you may find reference to them via such things as the US Declaration of Independence

karen said 1828 days ago :

So in other words, the website aims to change the constitution – and any author, artist, musician, inventor, scientist, should not have the rights to their ideas. This is not liberty, this is statism, to say that we have a natural immediate right to other people’s ideas and creations. It’s also unconstitutional.

“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;”
—U.S. Constitution, Article 1, Section 8, Clause 8

Aelius Blythe said 1827 days ago :

@ Karen

And to claim that creators “rights to their ideas” (which NOBODY will contest – I don’t see anyone trying to take away my IDEAS) extends to the the ideas, creations, property, data, and communications of other individuals is statism. That a creator can assert control over every copy and manifestation of their idea in existence is not liberty.

Do not insult creators by implying that our ideas are based on control of others actions and communications (i.e. copyright).

The (un)Nature Of Copyright · Tuesday July 10, 2012 by Crosbie Fitch

If instead of a libertarian you are a devout utilitarian or totalitarian, you are even more likely to be at a loss to understand why the 300 year old privilege of copyright is coming into disrepute and generally being ignored by a delinquent youth apparently unfamiliar with Queen Anne’s great philanthropic gift to mankind. Natural rights libertarianism is fine in itself, but while it may not provide you with your preferred basis for government, it is able to provide an explanation that legislative fiat cannot.

Natural rights explains the dissolution of copyright, because it helps us understand that human beings need their liberty. It is fundamentally vital to them. The state cannot expect the laws it passes to last if they prohibit natural liberties, whatever the pretext or ulterior motive, e.g. to preserve power, profit the plutocracy, or purely pompous purposes.

This brings me to John Baker, who recently e-mailed me with a few questions relating to his struggle to discern the fundamental principles underlying copyright law.

Copyright Is Unprincipled

I have been trying to hash out getting to copyright via first principles and seeing which bits stand up (which isn’t looking like very much so far!!)

No, you can’t get to copyright via first principles. :-)

Natural rights provides the principles. However it is controversial because it undermines the state, and its desire to decide the law irrespective of any fundamental principles. So, despite natural rights having a long history (even informing the Framers of the US Constitution – see Jefferson and Natural Rights), they aren’t taught much at all these days. Even lawyers only have about a cursory hour given to the subject in their law course (if they’re lucky).

A natural right is the natural and vital power of a being in equilibrium with its fellows.

Because we observe equilibrium in any species at large, even if there is power inequality in a few cases, we deduce that equilibrium is the natural/ideal state. This means that in the natural state the power of one individual is equal and opposite to that of another, and hence we use the term right – in which equality is implicit. They are natural rights because the equal power they represent is innate to the individual – not provided by any external agency.

There are physical boundaries that can be observed that delimit the individual’s vital powers or rights (into domains): the skin of the body dividing its interior from its exterior, the personal space (the limit of the body’s immediate reach), the vicinity or walls of the dwelling it inhabits, and the limits of its perception.

The individual’s physical power is their vital (necessary & imperative), physical ability, and thus right to exclude others from within those boundaries (should they need or want to).

The interior of the individual’s body, its life, health and integrity is paramount. The power to exclude others from within the body in order to defend its life, health and integrity is termed the right to life.

The right to exclude others from domains exterior to the body, is termed the right to privacy.

NB ‘others’ includes the actions and consequences of others’ actions.

The individual’s mental power is their vital (necessary & imperative) ability and thus right to understand and apprehend the truth of what they perceive with their senses, and thus the mental power and right to exclude the falsehood of others (or to “eliminate the impossible” as Sherlock Holmes puts it). This is termed the right to truth. It is vital not only to the individual’s survival, but also to detect and establish the truth concerning violations of the right to life & privacy.

What remains to the individual, is the power and vital ability to move and communicate within their natural environment. This is termed the right to liberty.

Natural rights do not conflict. There is no compromise or balancing between rights, although we can observe their descending vitality: life, privacy, truth, then liberty. One right precedes and delimits another.

Because rights represent powers innate to the individual, it is nonsensical to pretend that an individual can divest themselves of their rights (abandon them, or give them to another), and thus rights are a priori inalienable.

Because natural rights represent an individual’s innate and vital powers, the individual is naturally/instinctively aware of their imperative to assert their rights – to defend their right to life, privacy, truth, and liberty against others who may otherwise violate it. In those cases of violation, where one individual chooses not to respect the rights of the other (to take advantage) it will be up to the community to judge and repair/remedy the violation. Understanding the natural rights of all individuals concerned will thus enable justice.

The right to property derives from privacy. The objects private to us, those we possess upon our bodies, within the spaces we occupy or inhabit, are our property – assuming we obtained them by discovery, creation, or exchange – as opposed to theft (violating another’s privacy).

In the case where Fred exchanges/sells a basket to Tom, Tom is at liberty to manufacture a copy of the basket. Fred has no right to deny Tom that liberty, because Tom’s action in making a copy is not impinging upon Fred’s or anyone else’s right to life, privacy, truth, or liberty.

If the community, instead of recognising natural rights in its law, ignores or abridges natural rights and declares that people should no longer have the liberty to make copies of the craftwork they buy from each other, then this privileges craftsmen above their customers. Whenever they find out a copy has been made they can claim their privilege has been infringed and seek reparations against the infringer.

The important thing to note is that people have no natural right to prevent or prohibit others from copying them, from learning by following their example (if they are physically stronger they can attack & punish another for copying them, but remember we’re talking about rights). Moreover, their liberty which includes the power to copy, to learn by following another’s example, is vital to the individual’s survival, to humanity’s survival.

This is why the privilege we call copyright, established by Queen Anne’s statute of 1709, is unethical according to the fundamental principles of natural rights.

Ideas as Property

The only way I can see an idea legitimately being ‘property’ is if you keep it secret or have a means to delete it from your brain when you tell someone which is absurd!

Well, we certainly have the innate power and natural right to exclude others from the ideas in our brains (but not from coincidentally having indistinguishably similar ideas), or from the intellectual works in our private possession. Authors thus have a natural right to exclude others from their writings, but this is evidently easily misunderstood as a privilege to deny others their liberty to make copies of the writings they have purchased.

We don’t have much of a natural ability to deliberately forget something, no.

Innate Rights vs Held Rights

I need a good phrase that represents “RIGHTS BE-ER” rather than “RIGHTS HOLDER”. English language doesn’t make that easy unfortunately.

Rights are ‘held’, if they have been annulled (by law) in the majority, to leave them, by exclusion, in the hands of a few. Thus our right to copy, having been annulled in law (pretending we don’t have it, even though we do), is considered by the law to be held by the consequently privileged ‘right to copy’ holder, who can give it to another. Only rights that have been annulled (alienated from us by law, albeit naturally impossible) can thus be passed around.

Natural rights are innate and inalienable. We are born with them, they remain with us, and we die with them.

Corruption of ‘Right’ as Privilege

It is double think. A popular trick based on exploiting cognitive or linguistic limitation that doesn’t only apply to copyright.

When the term ‘right’ is used both for natural rights and for privileges (quasi ‘rights’ granted by law) then people are going to get confused into thinking copyright is as much a natural or human right as say, privacy.

Obligatory Honesty

The only one of those I can see practical in terms of copyright is an obligation to be honest/truthful. Obligations determine something you can actually ‘be’ if they are practical.

You can still find a hint of natural rights pertaining to intellectual works if you do a Google search for “moral rights”. We are effectively obliged to be truthful when we present another’s work, to avoid implying or misstating it as our work, because to do otherwise would violate the right to truth of the author and the rest of our audience (those to whom we present the work).

Further Reading

Natural rights can be discovered by anyone who cares to look, but this means there will be some terminological diversity.

Some, such as Murray N Rothbard, have, implicitly or explicitly, adopted the Lockean term ‘property’ to refer to the individual’s physical power of exclusion, the self-evident ownership of themselves, the space they inhabit, their possessions and their labour. However, this tends to make ‘property’ into a deus ex machina basis for natural rights, instead of its proper status as a consequence of them. This sometimes then tends to confuse people into thinking in terms of property first, people second, instead of in terms of people and their rights first, and their property second. It is thus safest to reserve the term ‘property’ for alienable objects, that are subject to the exclusionary power (privacy or exclusive right) of the individual that discovers, creates, or has received them (via gift or exchange) into their private domain.

“Natural Law and Natural Rights” By James A. Donald provides an alternative style of introduction to Rothbard’s.

Also see on this blog The 18th Century Overture – A Crescendo of Copyright – Natural Finale and Reprise and its precis Questioning Copyright.

 

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Veracity

Liberty

Censorship

Disclosure

Freedom of Speech

Freedom vs Liberty

Official Secrets Act

Piracy

Property

Apprehensibility

Facility

Identifiability

Copyright

Copyfarleft

Ineffectiveness

Modulation

Neutralisation

Patent

Software

US Constitution

'exclusive right'

Sanction

Contract

Inalienability

Licensing

NDA

Abolition

GPL

Business

Models

Incorporation

Immortality

No Rights

Regulation

Culture

Miscellany

Links

Principles

Amnesty International

Copyleft (Wikipedia)

Electronic Frontier

Free Culture F'n

Free Culture UK

Free S/w Foundation

Pontification

Against Monopoly

One Small Voice

Open...

P2Pnet

Question Copyright

Paragons

GratisVibes

Jamendo

SourceForge

Wikipedia

Protagonists

Downhill Battle

Publishers vs Public

Proof

Rethinking Copyright

Papers

Against Monopoly

Ecstasy of Influence

Libertarian Case

Post-Copyright

Practitioners

Janet Hawtin

Nina Paley

Rob Myers

Scott Carpenter