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Creation Confers Ownership · Wednesday September 24, 2008 by Crosbie Fitch

As Stephan Kinsella points out in a recent Lew Rockwell podcast, there is a degree of confusion, even among libertarians, concerning the idea that creation of an intellectual work confers ownership of that work.

The confusion is really over whether creation confers ownership over a work and all its copies or likenesses.

Naturally, if an author writes a novel, they own that intellectual work. It is their natural intellectual property. However, if they manufacture and sell a copy of the novel as a book, then the purchaser becomes the owner of that book and the intellectual work that is the novel within it. The book is the purchaser’s material and intellectual property, just as the author’s retained original manuscript is the author’s material and intellectual property.

Naturally, an author cannot continue to own the property after they have sold it, whether it is material or intellectual. Conversely, sale of a copy doesn’t relinquish ownership of the original from which it was copied.

However, thanks to the transferable privilege of copyright, the state grants a monopoly over the manufacture of copies to the copyright holder – assuming they are wealthy enough to prosecute its enforcement (generally only large publishing corporations). The author is the initial holder of the copyright to a work.

Nevertheless, even in the presence of copyright, purchasers of books still own the material and intellectual property they represent. They’ve simply had their rightful liberty to manufacture copies suspended in order to reserve this for those privileged by copyright.

This unnatural monopoly confuses some to believe that intellectual property is about an author or creator owning all likenesses of their intellectual works, that simply by being the author they are rightfully able to control the use of their original work and its likenesses or copies wherever they may be, even though they do not own the physical medium in which the intellectual work is fixed. This may well be an attractive idea (and lucrative as far as it can be enforced), but it is unnatural as it presumes an evidently supernatural power of the author, that they must have a reach beyond their own private domain and not only into the global public domain, but also into the private domains of others, far beyond their own neighbourhood and onto the other side of the planet.

An individual self-evidently has a natural control over their private domain, and as this by definition excludes the public, such control cannot impact the liberty of the public in their own affairs. However, to claim control over one’s intellectual work even after one has released it from one’s private domain to publish or privately sell, is a control that necessarily requires a corresponding constraint over others, an unethical suspension of the public’s natural liberty to communicate and build upon the culture they individually and collectively possess.

Thus creation confers ownership of an intellectual work, but it doesn’t spookily confer ownership over all its copies. Each copy exists independently (copyright notwithstanding).

So, when you hear some argue that ‘creation doesn’t confer ownership’, it should really be qualified as “Creation doesn’t confer ownership of all copies and/or likenesses of an intellectual work”.

Putting it simply:

  • Creation confers ownership
  • Purchase(exchange) confers ownership

Both creation and purchase are mechanisms for introducing property into one’s private domain and obtaining ownership thereof.

This applies to intellectual property as much as material property.

If someone creates/manufactures new property (an ‘original’ work or a copy of another item of their property – whether they ‘originated’ that or not) and sells it, the purchaser owns that property. The vendor’s natural rights over their property don’t interfere with what is now the purchaser’s property, nor do the purchaser’s natural rights interfere with the vendor’s- naturally.

Unfortunately, privileges given to filers of ‘novel’ mechanisms and fixers of ‘original’ works, most certainly do interfere with everyone’s natural property rights.

Thus, if people insist on misapplying the term ‘right’ to these privileges, then as Stephan demonstrates, we have to term them unnatural or ‘phony’ rights, thus “Copyright is a phony right”.

However, intellectual property remains natural. The creation of intellectual works confers their ownership to their creator, and the owner of such intellectual property, as with any owner of property, may transfer ownership by physically transferring the property. It is only the privileges pertaining to IP that are unnatural.

It is possible that some IP maximalists who’d like to pretend their privileges aren’t phony rights, but are actually natural, would go further than the legislated privileges they already enjoy and claim that creation/discovery confers ownership over all likenesses. This is plainly supernatural (only a deity or his church could be so bold), and its enforcement is beyond even the superhuman power of the state to achieve – as even some IP maximalists are finally beginning to recognise.

This is why I reject the over simplistic statement that creation does not confer ownership of an intellectual work. It does, as any author or artist instinctively knows. To insist otherwise cannot endear artists to the cause of cultural freedom, where artists are free to exchange and build upon culture, and free to exchange the value of their labour, their intellectual property, in a free market. Authors, artists, inventors, all own the work they create – they always have done and always will.

However, it remains a distinct truism that creation doesn’t confer ownership over all copies and likenesses. In fact, nothing natural can confer ownership over all copies and likenesses, except legitimate possession (one continues to own stolen IP despite it being within a thief’s illegitimate possession). Thus if you wish to own all prints of a watercolour you created then you must go out, repurchase and repossess them from whoever currently owns them. This cannot be done by holy fiat.

In wondering if there are any cases in which even creation fails to confer ownership of an intellectual work, Bill Stepp proposes the obscure thought experiment of whether a burglar can claim ownership of a work they produce in someone else’s private domain using someone else’s materials.

If you think of private domains as bubbles, and that bubbles may exist within others, then the burglar has a tighter private domain about his body even as he invades the looser private domain of another’s house.

A burglar owns the IP they create even in someone else’s private domain. They may not own the materials, and may in the course of their activities cause material damage, but burglary, material theft/damage, has no bearing upon the burglar’s ownership of their IP.

For example, an itinerant poet may burgle into someone’s beach villa, and whilst lazing upon its sunlit veranda sipping a G&T they’ve stolen from the fridge, scribble down a wondrous poem upon some notepaper they’d found in a desk drawer. That poem is nevertheless theirs, their intellectual property, even whilst they violate the material property rights of the villa’s owner. The owners may rightfully claim invasion of privacy, breaking & entry, theft/damage/destruction of notepaper, etc. But, the poem is not forfeit (however valuable), although theoretically, as one of the poet’s assets they may end up needing to realise its value in order to make restitution for their crimes. By way of comparison, just as the poet may steal chewing gum to repair a hole in his old cabriolet’s roof, his car is not automatically forfeit by dint of its proximity or contagion. Theft does not sanction theft, only an arbitrated remedy and failing that, rehabilitation. Another way of looking at it is that if the poet had instead been invited in from the beach by the resident owners of the villa, and had created the poem, it would still have been his IP despite not being his villa, ink or paper.

In conclusion, whilst state granted monopolies are alien to liberty and libertarianism, intellectual property is quite natural (as most authors and inventors recognise). It is only the state granted monopolies of copyright and patent that privilege filers/fixers (‘creators’) of IP that are unnatural.

As for creation, it certainly confers ownership over what one has created, but that ownership does not naturally continue after one has parted with what one has created, e.g. via abandonment, gift, or exchange. Thus one cannot sell the material of a physical work whilst retaining ownership of the intellectual work within it (since parting with the medium parts with the expression). More importantly, creation cannot confer ownership through similarity whether by likeness or through copying. Creating/inventing a novel knot cannot confer ownership over all indistinguishably similar knots and their application, but this doesn’t preclude owning the knots and the secrets of them that are in one’s possession. Purchasers of such secret knots similarly own them.

I hope this reduces any confusion libertarians may have when attempting to understand natural intellectual property and how ownership in intellectual work naturally propagates, and is interfered with by unnatural intellectual property privileges such as patent and copyright.

Tipping Diaspora · Thursday May 20, 2010 by Crosbie Fitch

Diaspora is another snowflake in hell.

It won’t be long before it’s snowing.

Thousands of true fans want the pop group that is the fab four comprising the Diaspora project team to buckle down and do some intellectual work this summer. In exchange for close to $200,000, they expect the copyleft publication of that intellectual work (copyright neutralised).

More facilities like Kickstarter will arise to make such exchanges ever more easier, and to refine the details of those exchanges.

So, who needs copyright? Who needs a monopoly on the sale of copies when you can sell your intellectual work directly to your customers? Answer: Only the traditional publishers utilising anything from Caxton’s press to modern CD and DVD duplication plants. Not intellectual workers.

The intellectual worker does not need a monopoly. Moreover, that’s the last thing they need if they wish their audience and commissioning fanbase to grow in size (and revenue). They must remove the © prohibition against making copies of their work. They also need their work to be exempt from the collection society thugs threatening people for performing their work in public (qv PRS). The modern intellectual worker must restore the public’s liberty to their work, enabling their free promotion, so that many among their audience might just be inclined to commission them to produce more good work.

Anyway, back off the hobby horse and down to Earth.

The first problem the Diaspora team needs to solve in developing a distributed system is the identity/reputation of the participating computers.

Freenet may have some pointers. I’ve also written an introductory article: Ideating Identity.

With that not insubstantial problem cracked they can build from there, optimising the distribution and replication of information according to interest.

On top of that you then have the users’ identity/reputation issues.

And then the icing on the cake (that must come last) are the matters of privacy, secrecy, confidentiality, and discretion.

Privacy is physical and a misnomer in the context of distributed systems – it’s best not to use the term at all (to avoid confusing people).

Secrecy can be contrived to a limited extent via cryptography.

Confidentiality and discretion are inclinations of people, matters of honour/reputation and cannot be enforced through technology (or law). However, they can still be informally measured and incorporated as part of a social reputation metric.

So really, what one ends up with is simply a means of assuring high availability of all the information that anyone is still interested in. Moreover, guarantees will still be expensive. People will have to pay for guarantees of persistence and prevalence – if you don’t pay, and your information is uninteresting, it may degrade to offline storage, ultimately to evaporate.

Amy Lewis said 2686 days ago :

Well, time for me to DELETE my account thee… not ‘deactivate’. I’ve changed over to folkdirect.com which so far is going well and lots more open privacy controls there. As word spreads the community will get bigger and bigger. All good. Worth a try.

Crosbie Fitch said 2686 days ago :

Yes Amy, there are many flowers blooming. Diaspora is by no means the only one, and it’s certainly not the first to aim for a decentralised implementation.

I am amused at the oxymoron of ‘open privacy’. Either you disclose something or you do not. There is no such thing as a ‘circulation control’ that can be applied to human beings, especially when they are in possession of an instantaneous diffusion device. You can ask your ‘friends’ to be discrete, circumspect, prudent, even to respect your confidences and guard any secrets, but you cannot gag them.

Anyway, one day people will recognise that one can prevent indiscretion as easily as copyright infringement, which is to say not at all. The aspiration and attempt is foolish at best and antisocial at worst. There is no privacy or dissemination control in a system designed to efficiently distribute information to and among the public.

Privacy in Business · Monday September 20, 2010 by Crosbie Fitch

Doc Searls asks Do we have to “trade off” privacy?

My simple answer: No, nor can we.

Privacy is a natural right.

Privacy cannot be given away.

Privacy is the individual’s natural ability to exclude others from the spaces they inhabit and can secure – including the material and intellectual possessions within.

What people give away is information about themselves, in their statements to others – other individuals who also have the freedom of speech and a natural right to liberty to communicate that which they have been made privy to.

No individual can alienate a natural right from themselves. Thus a right to privacy is a right to exclude others from what you have not told them, but not to gag them from speaking what you have told them – even if they wanted to surrender their right.

That’s privacy as a natural, human right.

NB Non-disclosure agreements may make continued employment contingent on non-disclosure, but they cannot actually suspend an individual’s liberty to disclose the knowledge they have been made privy to (a corporation, having no such right, can of course be so bound).

Everything else is a matter of confidence and discretion – as it has been since time immemorial. How well confidants can be relied upon to be discreet depends upon how well you know them and how well others do (their reputation). How well they maintain your confidence has repercussions for your trust and their reputation.

It is impossible to do business with someone and have a relationship with them without revealing any information. That said, it is possible for an individual to conceal their human identity, to do business via an artifical identity (with its own trading reputation), thus maintaining a business relationship without necessarily disclosing personal information.

Privacy is about preventing people from knowing what you’ve not disclosed, not about preventing them from disclosing what you’ve let them know.

essay writing service said 2526 days ago :

The right against unsanctioned invasion of privacy by the government, corporations or individuals is part of many countries’ privacy laws, and in some cases, constitutions. [BULK OF TEXT REDACTED]

Crosbie Fitch said 2526 days ago :

‘essay writing service’, please attribute and link to Wikipedia/Privacy rather than plagiarise it.

A War on Piracy is a War on Liberty · Friday November 12, 2010 by Crosbie Fitch

Ahmed Abdel Latif responds to Lessig wondering why WIPO is unable to succeed in its objective of global copyright reform, and whether the remaining need for such can be reconciled with the zealously prosecuted ‘war on piracy’.

How do you tell a child that there is no way of saving the sandcastle they’ve laboured long and hard over from the approaching tide?

Question the assumptions, even the language, and you might get closer to a truer understanding, and realise that a war against piracy is a war against liberty, a war against human nature and natural law.

This is a war that Canute would wage against the tide. The inexorable tide in turn, takes the liberty of eroding the fiat sandcastles of mercantile privilege.

There’s a reason rights holders are so called. These aren’t rights they are born with but rights annulled in all the inhabitants, to be held by a few. In 1709 Queen Anne derogated the right to copy from the individual’s right to liberty, and it is this that publishing corporations purport to hold. But of course, they do not. It is inalienable, and all the privileged hold is the power to persecute the disobedient.

There is no power on Earth that can subjugate the people to refrain from communicating, sharing, developing, copying, learning, or progressing, in order that monopolies may persist unchallenged. Giving them pretexts may smooth the passage of their legislation, but they don’t actually make monopolies do the opposite of what they do. If you want progress or learning you do not put a brake on it – you only do that if you wish to quell or tax an activity.

The only reform that fixes copyright and eliminates piracy is its repeal.

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 2471 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 2471 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 1905 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.

'Controlling Personal Data' & VRM · Monday July 02, 2012 by Crosbie Fitch

In “Your personal data is not worth anywhere near what you think it’s worth” Jerry Neumann ends with “I spent several years of my life trying to build a business that lets people take control of their own data while still leaving a way for marketers to find them. I believe in privacy”

Privacy is not something to be believed in. It has to be self-evident.

If we imagine privacy is the power to control what others do with the ‘personal’ data they collect from their transactions with us, then lacking this power innately, it cannot be obtained – unless the state grants us a privilege to prosecute those who fail to believe we have this power.

Privacy is the right to keep others excluded from that which we have the innate and physical power to exclude others from, e.g. the space about our person, the interior of our walled house, the space about us & those we are having a (private) discussion with, the interior of our physically bounded messages (envelopes), etc. We have no power to buy some cigarettes from someone and prohibit them from revealing this purchase to others (they will be discrete – if they are an individual with a reputation to worry about).

There are still others spending years of their lives trying to perpetuate businesses that rely upon people being able to control the distribution and use of their intellectual works – or rather an 18th century privilege that lets people prosecute those who fail to believe they have this power of control.

We’re not going to get anywhere if we attempt to build things based upon the powers of control we believe we have (or believe we should have), as opposed to the powers of control we do have.

On the Internet there are about two things we control that are relevant: our speech (inalienable) and our property (alienable). That means we can publish what we’re interested in, what we have, and contract to exchange what we have for what we want. This is ample power for VRM (as it has been for business between people since time immemorial).

We can neither surrender nor exchange our freedom of speech concerning our interactions or transactions, nor can we claim the power to constrain others’ freedom of speech respectively. Nevertheless, the faithful will continue to believe otherwise, that people do have the power to “take control of their own data”. If this includes you, read the above again.

 

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