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Mythologising Copyright · Monday August 11, 2008 by Crosbie Fitch

If the instantaneous diffusion of the Internet reveals copyright as an anachronism, it also helps manifest multifarious creation myths.

Many understand that copyright is a monopoly, and many recognise that the Framers of the US Constitution expressly abhorred monopolies and sought to prevent them. So, it’s quite odd when some even suggest that the Framers specifically wished to sanction monopolies in the Constitution:

Mike Masnick in a recent article of his on copyright comments that “To the framers it was a monopoly right granted for the purpose of incentivizing more content.”

To the Framers there was no copyright. There were no rights to be granted (rights can only be recognised, not granted), and certainly no monopolies to be granted, privileges that would interfere with the recognition that all men are created equal.

The Constitution of 1787 could not recognise copyright, because it was not about recognising reproduction privileges that may have already been legislated in Europe (1709), but about recognising citizens’ natural rights and what power should be granted to the state in protecting these.

The Framers recognised the natural, exclusive rights of authors and inventors, and considered that the state should have the power to secure these rights for limited times, e.g. the lifetime of the author/inventor.

The Framers couldn’t possibly recognise a privilege of copyright since such a statute would have to arrive after the Constitution – it couldn’t occur before it. The Constitution can only recognise what precedes it, i.e. natural rights. It cannot paradoxically recognise the legislation that was based upon itself or that later claimed its sanction. So, the Constitution of 1787 could not recognise the US Copyright enacted in 1790.

Copyright claims constitutional sanction, because copyright clearly helps secure exclusive rights. Unfortunately, copyright does more than this by granting an exclusive reproduction privilege to published works, i.e. a monopoly over reproduction. Published works lie outside of an author’s exclusive right, so any extension is an unsanctioned privilege (for however long a term it is granted). The Framers specifically expressed their abhorrence of monopolies, so copyright clearly exceeds constitutional remit. It is also worth noting that ‘limited times’ applies to the duration for which authors’ exclusive rights are protected, not the duration of any transferable monopolies granted over them (invariably enjoyed by publishing corporations).

So, whilst some of the Framers may have lived to see the first copyright law become enacted (not that any of them were involved in its draughting), it is not copyright that the Constitution sanctioned, but the securing of exclusive rights. The US Copyright of 1790 was heavily influenced by the 1709 Statute of Anne (which also didn’t recognise a reproduction monopoly as a natural right – hence the need to legislate such a privilege).

So, three years after the Framers agreed that monopolies were to be deprecated, good old George Washington rubber stamps copyright – the most egregious monopoly ever invented.

All that had to be done to exceed the power granted by the Constitution was to re-interpret ‘exclusive right’ to include control over works even after those works had clearly been released by their author from his natural, self-evident right, to exclusively control. Magnifying this excess was to name this privilege as if a right, ‘copyright’, and to make it transferable, and thus inevitably conveying monopolies back to the very publishers already recognised as the worst abusers of such.

So, please, let’s not conflate the Framers and their Constitution to protect citizens’ rights, with the legislators of copyright three years later and their desire to reward publishers with transferable monopolies (via initial attachment to original works – that co-incidentally also protected authors’ exclusive rights).

What? said 3212 days ago :

Your logic is seriously flawed and makes assumptions about the intents of the framers that history, letters, etc. don’t support. And most certainly the framers were thinking about monopolies, secured for a limited time, when they drafted that clause. To claim otherwise is to fly in the face of all documentation and letters to the contrary and to deny that the language of the constitution means what it says. I’ve seen similar twisted reasoning in fundamentalists religions that use sacred texts to justify whatever they feel like believing.

Crosbie Fitch said 3211 days ago :

It is clear that those who would enjoy and support the monopolies that were granted a mere three years after the Constitution, as well as their descendant publishing cartels over two centuries later, could only be eager to establish the ‘intended’ interpretation of the ‘power to secure authors’ exclusive rights’ as the ‘power to grant monopolies to publishers’.

I don’t doubt that a more correct understanding of what was meant by ‘exclusive rights’ (by those who knew that rights were invested in man by nature rather than granted by governments) is not going to go down at all well with those monopolists who’d like it believed they have constitutional sanction, rather than a mere statutory privilege granted a few years later.

It is of course academic. Nothing I say is going to affect the course of copyright. Reality is revealing copyright to be both unnatural and unviable. I’m simply observing that those natural rights philosophers who had a hand in draughting the Constitution understood the difference between (natural) exclusive rights and (unnatural) monopolies. Hence why such terms and phrases as ‘copyright’, ‘monopoly’, ‘patent’, and ‘may grant to authors’ are meticulously absent.

Those who draughted the US Copyright legislation a few year’s later however, taking liberty from a constitution now at arm’s length, felt then emboldened to create a reproduction monopoly over published works, call it an exclusive right, and then being a ‘right’ briefly held by the author (before they supernaturally transferred it to a publisher), fraudulently demonstrate this monopoly was a constitutionally sanctioned exclusive right of the author.

So, you can’t have it both ways. Either:
A) it is only recently that we’ve realised that copyright is a monopoly, and the poor Framers and copyright legislators committed a grievous error in thinking it was a natural right,
OR
B) it has always been known that copyright (as granted by Statute of Anne) is a monopoly and the Framers were meticulous in restricting the Constitution to the protection of natural rights and the rigorous exclusion of anything from it that might be interpreted to permit the granting of unnatural monopolies.

If we’re weighing letters and documentation, I think you’ll find a wealth of it that expounds the ills of monopolies, especially when enjoyed by printers. The malaise of monopoly was painfully clear to all at the end of the 18th century – on both sides of the Atlantic. Unfortunately, monopolies are so lucrative to those who enjoy them, one can but marvel at the ingenuity and cunning of those who would manoeuvre them back into the legislation – and today maintain and extend them there.

Willton said 3208 days ago :

The reason the words “patent,” “copyright,” and “monopoly” were not used was because the language of Art. I Section 8 Clause 8 is much broader than those narrowly-defined words, and thus encompases the concept of patent and copyright. The Constitution is designed to be read broadly, not narrowly.

Plus, to say that the Framers were thinking one thing when drafting the Constitution and then thinking another when drafting the Copyright and Patent Acts is illogical. It makes perfect sense that the Framers of the Constitution would then draft legislation consistent with the meaning of the Constitution 3 years later. The language of the Acts is supported by the language of the Constitution. You have no evidence that says otherwise: all you have is your ill-conceived notions on how the world should be.

Crosbie, you’re a lunatic. You have no Constitutional authority to back such an absurd opinion. You interpret the Constitution to mean whatever you think it means, not what the Framers intended it to mean. Follow the plain language of the Constitution; don’t make up meanings for words and phrases that don’t have any legal or normative support.

Crosbie Fitch said 3207 days ago :

It seems that we are getting to the stage where we should simply agree to disagree.

You stand by the received understanding of the last two centuries, by the majority of sane authorities, that the Framers intended ‘power to secure an author’s exclusive rights’ to mean “power to secure an author’s exclusive rights, and to grant them reproduction monopolies or other mercantile privileges that may subsequently be termed ‘exclusive rights’” or alternatively to mean “power to secure an author’s exclusive rights, where ‘exclusive rights’ encompasses their natural exclusive rights as well as any reproduction monopolies or other mercantile privileges that may later be granted to them”.

I on the other hand, argue logically, rationally and coherently that ‘power to secure exclusive rights’ means “power to secure exclusive rights, where ‘exclusive rights’ needs no further explanation because it describes an author’s self-evident and natural exclusive rights to their writings” and is thus not a warrant for the state to grant reproduction monopolies and other mercantile privileges to persuade authors to release their writings from the protection of their exclusive rights (making them public). Though such a warrant was evidently assumed when a grant of a reproduction monopoly over published works (aka copyright) was enacted a mere three years later.

I invite you to post your logical, rational and coherent counter argument to mine on your own blog – arguing why copyright is constitutionally sanctioned.

I recognise that to many people it would appear insane to question constitutional sanction for copyright, but fortunately, neither insanity nor lunacy actually impinges upon the validity of such an argument.

As to authority, this also has no bearing upon an argument’s validity, but only really whether one could expect to be taken seriously. This is why I’m just blogging about this rather than presenting an academic paper at a conference.

Whilst I might hope to persuade you of my sanity, I am clearly unable to do much about my authority. Neither I nor anyone else today is a contemporary of the Framers, but in case it helps, I did live for many years in the same town as Thomas Paine and drank in the same pub as him. You know Thomas Paine? That influential chap who was a contemporary and well known to the Framers, who wrote The Rights of Man? No doubt the obvious interpretation of such a title should lead one to conclude that he wrote about the reproduction monopolies and other mercantile privileges that governments should have the power to grant to men such as him.

Paine emphasizes that rights cannot be granted by any charter because this would legally imply they can also be revoked and under such circumstances they would be reduced to privileges.

Paine writes, “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. ”

Willton said 3204 days ago :

Last I checked, Thomas Paine did not have a hand in writing the Constitution.

Crosbie Fitch said 3204 days ago :

Nevertheless, Thomas Paine was one of The Founding Fathers of the US Constitution who was, as I indicated, a highly influential contemporary of others such as Benjamin Franklin, Thomas Jefferson and James Madison – and other Framers.

Paine had a hand in writing the constitution even if his hand did not literally grasp the pen.

See Wikipedia on Jefferson: Jefferson believed that each individual has “certain inalienable rights.” That is, these rights exist with or without government; man cannot create, take, or give them away. It is the right of “liberty” on which Jefferson is most notable for expounding. He defines it by saying “rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law,’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”34 Hence, for Jefferson, though government cannot create a right to liberty, it can indeed violate it. And the limit of an individual’s rightful liberty is not what law says it is but is simply a matter of stopping short of prohibiting other individuals from having the same liberty. A proper government, for Jefferson, is one that not only prohibits individuals in society from infringing on the liberty of other individuals, but also restrains itself from diminishing individual liberty.

The Framers had a clear understanding of the difference between exclusive rights inalienable to individuals and mercantile privileges of monopoly (over reproduction, utilisation, performance, or anything else) that could be granted as compensation, rewards, or favours (and would be).

Crosbie Fitch said 3204 days ago :

From the Thomas Paine National Historical Association

The Philosophy of Paine
by Thomas A. Edison

June 7, 1925

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

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

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

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

contd.

What is a Rightsholder? · Tuesday February 10, 2009 by Crosbie Fitch

A ‘rightsholder’ is a euphemistic term for someone who is privileged with the suspension of your rights and the commercial exploitation thereof, e.g. as in ‘testiclesholder’ (it is not their goolies they’ve been granted a grip on, but yours).

Thus those who are privileged with the holding of your right to copy or build upon the works of art you may purchase are known as ‘copyright holders’. This is because your natural right to copy was suspended in the 18th century to create this privilege of ‘copyright’. Your right to copy, like all natural rights, is supposed to be inalienable, but such wee technicalities may be pushed aside in the favour of commerce and those merchants who lobby so handsomely.

Let’s see how those who enjoy holding your rights like to allude to a vague justification for their privilege of doing so:

From Copyright.Com

How are “rights” defined?

Under the United States Copyright Act found at Title 17 of the U.S. Code, a creator of original materials is granted a package of exclusive rights, the entire package of which is generally referred to as the creator’s “copyrights.”

Ahem. No. A creator of ‘original materials’ is recognised to have an exclusive right to their work. Moreover, this right isn’t bestowed by a paternalistic state, but is recognised as natural and self-evident by an astute and percipient constitution. Rights cannot be granted. Thus this exclusive right, like any right, should not only be secured, but should remain underogated.

Most critically, ‘exclusive rights’ are not ‘copyrights’.

Copyright may well be a privilege that helps secure exclusive rights, but the privilege of copyright remains a suspension of others’ right to copy. In other words, copyright is not the right to copy but an abrogation of it. Therefore one cannot refer to exclusive rights as copyrights. This is unless, of course, one would like to confuse people into believing that copyright was a right and therefore supposedly natural and self-evident.

Anyway, while there may be many who would nefariously encourage the terming of exclusive rights to be ‘copyrights’ and who would also wish to cement this as the general understanding, those exclusive rights remain rights. They are not privileges, and nor are the privileges that help secure them therefore the rights that are secured.

  • A constitution recognises rights.
  • The legislative enaction of a privilege is a derogation of those rights.

Thus the US copyright act of 1790 shamelessly derogates the natural right to copy (part of the right to liberty and free speech) in order to bestow it as a transferable privilege for commercial exploitation by those who own printing presses – on the pretext that this helps secure an author’s exclusive rights (recognised by the US constitution in 1787).

Once again:

  • Rights are imbued by nature and constitutionally recognised.
  • Privileges are granted by kings and unscrupulous states.

So, an author has a natural exclusive right to their writings.

Whereas printers are granted transferable reproduction privileges (initially assigned to each original work). They are not granted ‘rights’, but the exploitation of others’.

“Hang on, hang on. So what is the difference between an author’s exclusive right and the transferable reproduction monopoly known as copyright that is automatically attached to an author’s original works?”

Good question.

  • An author’s exclusive right is that they may naturally and self-evidently exclude others from access, communication, reproduction, performance, possession, or any other use of their writings, i.e. those in their possession created by themselves (privacy extends this to others legitimately obtained).
  • Copyright is a privilege granting the holder with the power to prosecute anyone who reproduces or publicly performs a particular work (among other uses), i.e. the power to enforce the suspension of the public’s right to copy, to share or build upon the covered works of art in their legitimate possession.

Clearly, copyright helps protect an author’s exclusive right to their writings, but it remains an unethical privilege with far more power than nature originally provided an author.

Nature doesn’t imbue an author with the power to control what the public may do with the writings they give them, but with the power to exclude the public from the writings that the author has. This is also known as the right to privacy – the power to exclude the public from one’s personal space, one’s home and its contents. It is not the power to invade the homes of others nor to suspend their liberty to reproduce or perform published works – the public’s culture.

It is so sad that people will fight so fiercely for our immortal publishing corporations to retain their 18th century privilege of holding our family jewels, our cultural commonwealth, in the misguided belief that this is in our interest…

All rights inalienable, no privilege recognised.

An Author's Exclusive Right · Sunday March 01, 2009 by Crosbie Fitch

Many people confuse ‘copyright’ with ‘exclusive right’ (as recognised by the US Constitution of 1787), and thus presume that copyright is both a natural right and constitutional. Some people even cite the constitution’s recognition of ‘exclusive right’ as equivalent to recognising copyright as a natural right, and so term this the ‘copyright clause’1.

There is also a misguided notion that the constitution can grant rights to US citizens, and that copyright is such a granted right. It can do no such thing, and did not, as it instead only recognises the natural rights that the citizens already have that they empower the government to secure2. Copyright is a mercantile privilege3, enacted after the constitution, supposedly4 to persuade authors to release their writings from the protection of their exclusive rights for the public’s benefit – by granting authors the reward of a potentially lucrative reproduction monopoly over their published works. Thus copyright is a privilege granted by the government – unconstitutionally.

Nevertheless, despite being a mercantile privilege, copyright both helps secure5 an author’s exclusive right to their (unpublished) writings and incentivises the author to publish them (given the monopoly).

To help clear up any confusion between ‘exclusive right’ and ‘copyright’, I will now explain what an author’s exclusive right is, and why it is natural and self-evident, and consequently able to be recognised by the US Constitution.

Exclusive Right vs Reproduction Monopoly

Secondary to a human being’s natural right to life, is their natural right to privacy. This is the individual’s natural interest and ability to exclude others from a space about themselves, their dependents, and their possessions, and from within their larger enclosures thereof such as houses. This space is known as the individual’s private domain, and it is from the individual’s right to privacy (to secure and exclude others from their private domain) that material and intellectual property rights derive.

There are three key mechanisms for obtaining property, which are:

  1. gathering (from one’s environment whether a natural resource or another’s abandonment)
  2. creation (physical or mental labour), and
  3. exchange (from receipt of purchase or gift).

In all cases private property is obtained by introducing objects into one’s private domain (each with a degree of intellectual and material component).

An author’s intellectual works that they fix in a physical medium, especially their original writings, are self-evidently the author’s intellectual property. These writings are what they have a natural exclusive right to, especially given that in the traditional case of writing they must first manifest under the private hand of their author’s body, and from thence to storage elsewhere within their private domain. It is up to the author whether they keep their writings private, exclusive to themselves, or whether they pass them on to others (either included in their confidence, or for public dissemination).

Thus, having the natural right to exclude others from their private domain, an author has the natural right to exclude others from any action concerning their private writings, whether reading, copying, performing, communicating, removing, destroying, or anything else. However, they only naturally have this right over the writings within their private domain. The author has no natural ability and consequently no natural right to control what others may do with the writings the author may have provided to them (whether by purchase or gift)6.

Unfortunately for US citizens, their exclusive rights to their writings, designs or any other of their intellectual works or property are rather poorly protected. Despite being constitutionally empowered to secure them, the state does not police and prosecute those who violate an author’s exclusive right to their writings – as it should (and as it does for their material property).

So, you may now see why I so often argue that it would be better if the unconstitutional reproduction monopoly of copyright was abolished (being intended for exploitation by the press), and was replaced by law that properly secured an individual’s exclusive right to their writings, designs, and other intellectual property. The constitution is supposed to be about equally protecting the natural rights of the individual in a stable and free society, rather than to be a means of privileging commercial corporations above them, to exploit them (irrespective of alleged societal benefits).

Thus ‘exclusive right’ is an individual’s natural intellectual property right that is not properly secured despite constitutional recognition, and ‘copyright’ is an unconstitutional reproduction monopoly that only coincidentally helps the wealthy individual (or their publishing agent) secure their exclusive right, but primarily rewards the publishing corporation at the expense of the people’s suspended cultural liberty.

______________________________________

1 This puts the cart before the horse, given the constitution can only recognise the natural law that precedes it. It can’t recognise the subsequent US copyright law, because that must logically derive from the constitution and have its sanction (it cannot both inform it and derive from it). The constitution is also unable to recognise British copyright (of 1710, which also didn’t recognise copyright as a natural right).

2 From WikiPedia – Rights of Man:

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.

Government’s sole purpose is safeguarding the individual and his/her inherent, inalienable rights; each societal institution that does not benefit the nation is illegitimate — especially the Monarchy, the Nobility, and the Military.

3 Also perniciously termed a ‘legal right’ as some prefer, often dropping the ‘legal’ qualifier to insinuate it has equivalent standing to a natural right (which now tends to need such qualification given contemporary abuse of ‘right’ in place of ‘privilege’). One must thus be careful to distinguish between law made to protect natural rights and law made to grant privileges, i.e. especially such unethical ‘legal rights’ as copyright and patent.

4 It is more likely that copyright was created to benefit printers, coinciding with the state’s interest in obtaining leverage over the press.

5 Being a privilege rather than a right, copyright can typically only be exploited and enforced by wealthy publishers with their expensive reproduction machinery and sizeable litigation budget.

6 They may be granted the privilege of doing so, as a favour from a king perhaps, but that would be inegalitarian, as it suspends this liberty from all in order to reserve it as the exclusive privilege of the favoured subject (or their assigns).

Jim Bursch said 2971 days ago :

I’m interested in an example of poorly protected exclusive right in the U.S., and what would be a good protection.

Say, for example, that I am writing in my private diary at a coffeehouse, and someone looks over my shoulder and sees my brilliant prose and then blogs it for all the world to see. Is that an example of my exclusive right being violated, and therefore should be a criminal act?

Another issue that comes to mind is “expectation of privacy”. Is it reasonable for me, writing in my private diary in a public place to expect a level of privacy that should be protected by law?

Another scenario: A man enters my home with my permission, but without my permission he copies my diary and posts it on the Internet. I imagine that I have civil complaint, but not a criminal complaint. Is that what you mean by poor protection of an exclusive right?

Crosbie Fitch said 2971 days ago :

Given you are in a public place, and your pages are visible should people look over your shoulder, for which you have no physical barrier, then it’s doubtful that this could be considered a significant violation of your privacy. Perhaps this is more an impolite invasion of your personal space? On the other hand if there is an overhead CCTV camera recording your diary that is then transcribed and published, perhaps this becomes significant? These are borderline cases in need of arbitration. One could say that recordings of personal spaces may only be made by persons present with those recording devices in plain sight and in the same positions as their eyes or ears – in order that people can distinguish between innocent reportage and being spied upon for purposes of IP theft or other significant privacy violation.

Anyway, I’m more concerned with privacy and an author’s exclusive right to their writings being a more ethical underlying principle in recognition of intellectual property than the commercial incentive of a reproduction monopoly.

If you permit someone to enter your home then anything not locked up is effectively made accessible to them, and they are free to publish it. The only constraint upon them here is their respect for your confidence in them and their discretion, and potential repercussions to their reputation should they be indiscreet or otherwise break your trust.

Protection of someone’s exclusive right is against theft/copying/communication of their works by unauthorised persons – persons that have not been made privy to their writings (specifically or implicitly).

For example, suppose you have a 200 year old manuscript and a burglar comes in and photographs its pages. Because the monopoly of copyright will have expired (if it ever applied), then copyright doesn’t provide any protection. You instead have to seek some other remedy. In some jurisdictions there are certain works not protected by copyright such as recipes, so if someone steals a copy of your secret cookie recipe even copyright can’t help you.

Even if you have a manuscript that you recently wrote yourself, if a burglar takes copies and publishes them you won’t get much help from the police in finding out the culprit (if they caused no damage and stole no material property), nor will they arrest them for copyright infringement.

So, yes, IP theft should be recognised to be as serious an offense as theft of material work. However, there should be no such thing as a reproduction monopoly – infringement of such is certainly not theft, despite publishers wishing otherwise.

We can police the boundaries of our private domains, but we cannot police others to ensure they do not make or share copies of the works they’ve purchased.

Jim Bursch said 2970 days ago :

Interesting.

Could one enter into a contract that constrains reproduction?

For example, could an author contract with a publisher to produce 100 copies of a work, and then sell those copies under a contract with the buyers that they cannot reproduce the work themselves? Or would this be akin to contracting oneself into slavery (which I presume can’t be done).

Crosbie Fitch said 2968 days ago :

Jim, without copyright, this cannot be achieved – unless slavery was legalised, i.e. people were once again permitted to alienate themselves from their natural, (and what should be) inalienable, right to liberty.

However, you could make non-copying a contractual condition, e.g. “Whilst you and your customers abstain from producing unauthorised copies, I’ll continue to supply new work to you at $5 per copy, however should I find unauthorised copies in circulation I’ll discontinue my supply at that rate, but will consider negotiating a supply at a higher rate”. Though such a condition is unlikely to be particularly effective or beneficial.

Jose_X said 2597 days ago :

I like your explanations. It’s a fairly consistent viewpoint. I also now find interpreting the Promote clause along these lines to be more natural (the meaning of the words seem less foreign and the overall intentions seem more consistent with the overall goals of the Founding Fathers, eg, as you mentioned here www.digitalproductio… ).

At least two things bothered me as I was reading your comments. The first is that you seem to skip the inventors/patent scenario. Does it make sense to talk about protect privacy in this case? The other difficulty I had was that “authors” frequently want to have their works be published. In particular, this would seem to be the case under the context of promoting progress.

Well, I’m glad to say that I think I have resolved the confusion: The securing (the helping to safeguard the privacy) should help promote progress by helping authors/inventors better protect their position of leverage (privacy) prior to making a disclosure to others and to perhaps have redress should that privacy be broken (but redress should not unduly burden others, eg, as you quoted from Jefferson, or fail to promote progress).

It would seem that laws aiming to fulfill this requirement would do things like, at the author’s option, require compensation or sharing of profits should a (eg) publisher make money off a work whose origin they claim they did not know but which turns out to have been a work taken from its author without permission. Also, you could insist on precise works being removed from further publishing, but it seems there is little that could be done to put ideas and anything else gained back in the bag. There could be stiff fines or jail time for those that were found guilty of exposing the works. Etc.

To specifically try to put the cat back in the bag by prohibiting the dissemination of ideas seems considerable overkill because of the attack on liberties. This is particularly true the more that other work differs from the actual literal writing that was exposed; the barring on idea reuse seems very unlike the intention of the Constitution anywhere, and is a sure way to hinder progress.

So it is good to see the Framers of the Constitution likely did not foolishly suppose that monopolies might be a good idea. Now, we just need to get back to the drawing board to help strike a balance that is actually fair to everyone and might conceivably promote the progress.

[BTW, I like the “uncopyright” share-alike like copyright license at the bottom of the page.]

Mark Proffitt said 2595 days ago :

Very well thought out.

I found your article from a comment about my article.

markproffitt.com/200…

Crosbie Fitch said 2593 days ago :

Jose_x, I don’t mean to skip the issue of patents, rather to focus on the more familiar issue of copyright.

Privacy is as relevant to designs as it is to works of literature. That mechanical and literary works occupy distinct industries and means of reproduction may give rise to distinct privileges (patents vs copyright), but the natural exclusive right to an intellectual work is unethically augmented by an unnatural reproduction monopoly either way.

It is industrialists that covet the monopoly, and a prosperous industry that attracts and sustains the parasite that the privilege of a monopoly is. Industrial progress does not result from monopoly, it gives rise to it. It is a convenient illusion of correlation that the inverse causation can be pretended. This is to claim that since patents paralleled the industrial revolution that such monopolies must have promoted progress (instead of progress promoting monopolies). Corporations, being without conscience or scruple, are driven by competition. The pinnacle of competition is to win the grant of a monopoly. Thus when corporations become sufficiently industrious and wealthy they succeed in lobbying for their ‘protective’ legislation. And, as others have observed, when a corporation’s products are no longer competitive in the marketplace, the corporation resorts to the legal weapon of their patents (as Dick Dastardly utilises underhand means to eliminate his faster competition).

Rather than design vs literature, a more fundamental distinction that can be made, is between material and intellectual aspects of works (formed/fixed in a physical medium). And this is simply due to our greater facility at reproducing and communicating information than matter. This could change in the future – if there was a matter replicator/telecopier it would be just as much a privacy violation for a burglar/telespy to make a material reproduction of a private work as a visual one. It is the unauthorised transgression of the physical boundary of the individual’s private domain that is the natural rights violation. Law should assist in the securing of this natural right of the individual, their privacy and exclusive right to their possessions, and the remedy of any violations that do occur, i.e. reversal, restoration, restitution, recompense, reimbursement. etc.

So, an inventor has as much privacy as a vintner, and a poet as much as a potter. None should have their material or intellectual works stolen. All have a natural ability and power to secure their works against burglars (unauthorised access, use, consumption, reproduction, removal, etc.) and consequently a natural right to exclude others from them. Whether comestible, craftwork, design, or literature all works must be recognised by law as private property and products that may be exchanged in a free market. And a free market is a market free of monopoly.

Individuals who create works will be interested either in disseminating them to promote themselves (their skill), or to market them, to exchange them for the money of those interested to receive them.

I appreciate that one cannot ‘put the cat back in the bag’ as it were. However, one can place some degree of embargo upon the dissemination of stolen works (and derivatives), to retain something very similar to copyright except that it applies solely to those works that can be demonstrated to have been stolen (obtained via burglary). This embargo would be automatically lifted the moment any of those privy (having authorised access) to the work decided to publish it (make it available to any person). There are some cases in which violation of privacy is warranted in protection of life, and thus embargoes would not be granted in such cases, e.g. upon the disclosure of secret test results that indicated a drug had dangerous side effects, etc.

Deterrents and remedies for privacy violation are wide open to debate in terms of justice and effectiveness, however, the principle remains that the government should help secure the individual’s natural right to privacy, their exclusive right to all discrete physical objects in their private possession, whatever the degree of their material or intellectual aspect.

Naturally, the securing of individual privacy does not impinge upon the liberty of the public, and that means no monopoly or other privilege should be granted, and any already granted should be abolished.

I think you’re right about going back to the drawing board. We do need to start sketching out what more ethical legislation would look like, i.e. with respect to the protection of all individuals’ natural rights concerning the possession, production and communication of information and intellectual works.

The Monopolists' Con of Constitutionality - part 1 · Saturday August 08, 2009 by Crosbie Fitch

This is the first of a four part series examining the way in which people who should know better maintain and reinforce the con against the US citizen that copyright and patent are sanctioned by the US Constitution.

As should be increasingly obvious in these days of instantaneous diffusion, the US Constitution is being abusively cited in ever more desperate attempts by the incumbent monopolists to demonstrate a solid foundation for copyright and patent. Naturally, the constitution can do nothing of the sort, so the corporate lackeys who resort to such abuse in pretending otherwise are attempting a con. In this way, it is solely a matter of confidence that anyone is able to persuade their audience that copyright and patent are natural rights of the individual and properly recognised by the US Constitution as deserving of protection by a necessarily empowered government.

Upon inspection there are no grounds for such a proposition. All grounds that are proposed materialise from external motives, such as may be inspired by fiscal prudence, e.g. “Monopolies are socially beneficial sacrifices of liberty – well, they certainly benefit us!”.

If you or your audience want to believe that copyright is not only good, but constitutional, perhaps because your business relies upon copyright or its litigation, then it’s not too difficult to kid yourself or your audience that it is.

Perhaps such devout believers rely upon this deceit so they can sleep soundly despite having financially wrecked the lives of Jammie Thomas, Joel Tenenbaum, and Brittany Kruger? If their persecution of such naïfs for sharing music is sanctioned by the constitution then it is surely just and ethical? On the other hand, if copyright is properly recognised as unconstitutional qua unethical, then will more people be prepared to point out the psychotic Emperor’s lack of robes?

Fortunately, lawyers must take pains to avoid lying, so in reading their allusions to the constitutionality of copyright one can sometimes discern the truth – if one shields one’s eyes from contrary insinuation.

Allow me to introduce you to Ms Dale Cendali, Intellectual Property Partner, Kirkland & Ellis LLP and Adjunct Professor, Harvard Law School. Apparently “She is a recognised leader in intellectual property (IP) litigation, who has been described by Chambers & Partners (US law firm) as ‘one of the best lawyers in the country’.”

Here is an example of her apparent confidence that copyright is sanctioned by the US Constitution:

From Copyright and wrongs an Economist.com debate.

From its inception, the United States has been a society of innovators. Americans place a high value on original thought and expression, and have benefited from innovation both in terms of technological advances and by a culture enriched by creative works. It is no coincidence that the constitution itself, inheriting the notion from protections already existing in the UK, seeks to boost creativity by empowering Congress “[t]o 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” (US Constitution, Art. I, Sect. 8, Cl. 8). The concept underlying current copyright law is elegant in its simplicity: In order to achieve “Progress of Science and the useful Arts”, the law protects the ability of an author to recoup his or her investment in creating a work by granting exclusive rights to exploit that work for a limited time. The creation of films, computer programs and other creative works can be very costly and the possibility of returns risky. But individuals and firms are willing to invest resources in these projects in large part because of the prospect of greater future returns.

We can quickly pass over the insult that the Framers wished to inherit the UK’s monopolies of copyright and patent in the US Constitution. That there was enthusiasm elsewhere for those monopolies to be legislated is unsurprising, but that doesn’t mean the clause was inserted precisely so sanction for those monopolies could be misconstrued.

Notice that Dale doesn’t say that the Constitution protects, but that the law (copyright) protects, and that copyright law protects by granting ‘exclusive rights’. Moreover, note that she doesn’t even attempt to say that these ‘rights’ are granted to protect an author’s exclusive right (how can granted rights protect natural rights?), but that the granted ‘rights’ are granted to protect revenue and achieve progress.

Well, the cat’s out of the bag now.

How can the Constitution specify the securing of ‘rights’ that were granted in legislation years later?

It can’t – those legally granted ‘rights’ weren’t in existence at the time of the Constitution and so couldn’t be recognised by it. The Constitution can’t grant power to secure ‘rights’ that don’t yet exist, and the Constitution certainly can’t grant rights, because rights can’t be granted by definition. It can’t even specify the granting of privileges – even if they may only later be termed ‘legal rights’ or simply ‘rights’.

Ms Dale Cendali is expecting her audience to conflate the modern meaning of the term ‘exclusive rights’ (legally granted ‘rights’ aka privileges) with the term exclusive right as used in the Constitution, which can only refer to the individual’s natural exclusive right to their writings/designs, a right that is imbued in man by nature and to be protected by legislation (via power granted to congress for this purpose), not a monopoly granted by legislation. The Constitution does not empower congress to grant monopolies or any other privilege.

The Constitution specifies the securing of an author’s pre-existing, natural exclusive right. It does not say that the privilege of a monopoly (copyright) should be granted such that it may be mischievously described as a ‘legally granted right to exclude others’ from reproduction of one’s published works – or ‘exclusive right’ for short.

The Constitution refers to the exclusive right that already exists, not to a privilege that is yet be created (and to be given a confusingly similar name).

So Cendali segues from “To promote progress, congress is empowered to secure an author’s exclusive right to their writings” into “To promote progress, congress is empowered to grant authors ‘exclusive rights’ defined as a transferable reproduction/performance monopoly to enable considerable profits to be made by their publishing agents at the expense of US citizens’ liberty.”

Clever eh?

As if to add justification for an unjustified misinterpretation she points out that, with the prospect of considerable profits, monopolies encourage risky investments. Sure, but the constitution said nothing about granting monopolies or the need to provide lucrative rewards to authors or inventors (especially not their agents or investors). That monopolies are lucrative to those to whom they are granted is obvious. The problem is the considerable loss of cultural liberty to US citizens, and the fact that monopolies represent a net cost to the economy. Preventing competition in order that higher prices are enjoyed by favoured parties redistributes wealth. It doesn’t contribute any productivity. On the contrary, there is a net loss in productivity due to tax required for policing. Monopolies also impede technological and cultural progress due to reduced knowledge sharing.

Can Dale insinuate anything in support?

The constitutional wisdom in granting creators exclusive rights in order to encourage innovation has resoundingly proved correct.

It almost sounds as if she’s saying that the constitution wisely granted creators ‘exclusive rights’ doesn’t it? It might sound like that, but she isn’t, and it didn’t.

If the ‘exclusive rights’ were granted some years after the Constitution that can’t represent ‘constitutional wisdom’, i.e. wisdom on the part of the Framers.

The ‘exclusive rights’ are not even the same exclusive right that is referred to by the constitution, but privileges granted by later legislation. She is suggesting that whoever legislated those privileges was ‘constitutionally wise’ – a rather dubious contention (given the Constitution sanctioned no granting of privilege).

It would have been wise of the legislators if they had actually adhered to the wisdom of the constitution and restricted themselves to enacting law that secured an author’s and inventor’s exclusive right, rather than completely ignoring that to instead grant a transferable monopoly for the lucrative exploitation of printers and mass producers – making a considerable sacrifice of each US citizen’s liberty.

Are you still confident that the monopolies of copyright and patent encourage innovation? They certainly encourage publishers and industrialists to obtain and exploit these monopolies, but that’s not the same as innovation.

So, aside from issues of veracity, do you feel Ms Dale Cendali wishes her audience to believe that copyright is constitutional? It seems to me that she does.

She doesn’t go so far as to say it is constitutional, but then if it was, do you doubt she’d be at all hesitant in asserting it?

So, we can conclude that precisely because of Ms Dale Cendali’s clear effort to insinuate that copyright and patent are constitutional, without actually going so far as to state anything to that effect, she recognises that there would be no truth in such a contention.

And ye shall know the truth, and the truth shall make you free.

The privileges of copyright and patent are unconstitutional.

Steve R. said 2849 days ago :

I am in agreement that the copyright maximilists have gone way beyond the constitution. Also, this is the first of four parts, so my comments may be premature.

I trust that you will cover the unfortunate Eldrid V. Ashcroft.

Additionally you may be interested in Tom Bell’s: Unconstitutional Copyrights?

Crosbie Fitch said 2849 days ago :

I will not cover Eldred v Ashcroft. That focuses on ‘limited times’. As far as the natural exclusive right goes, being the right of the individual, its term is also logically bound to the individual, i.e. the span of their natural life.

Similarly, Tom Bell focuses on ‘to promote progress’.

Both of these analyses miss the far more fundamental issue of the exclusive right itself. It is not a state granted monopoly, and so my series focuses on that, and how people persistently insinuate that the monopoly of copyright is the natural exclusive right recognised by the constitution.

Copyright is legislation enacted after the Constitution. It may well have been subsequently portrayed as a means of securing (or helping to secure) the author’s exclusive right, but it does so very poorly, if at all. It is also claimed that it was created to benefit the public by encouraging authors to release their works from the protection of their exclusive right – by providing publishers with a lucrative monopoly that they will pay the author handsomely for. Whether the monopoly benefits the public is covered elsewhere ad nauseum. I suggest that copyright was legislated in spite of the Constitution because it benefitted the press and the interests of the state in controlling the press – and yes, its existence in Britain did inform and inspire many in the states to seek its introduction there. However, those who covet monopoly should not be confused with those who recognise the individual’s natural right to liberty and the need for it to be protected by a strictly limited government.

So, I’m just covering the curious issue of why some prefer to call the ‘progress’ clause the ‘copyright’ clause, and resort to other tactics that they hope lend weight to the idea that copyright is constitutional.

Crosbie Fitch said 2848 days ago :

See Moral Panics and the Copyright Wars on Against Monopoly where Stephan Kinsella critiques William Patry’s stalwart loyalty to his pro-copyright position (despite being depressed by its corruption):

Terrible. Sure, he’s right that, as the Amazon description indicates, “copyright is a utilitarian government program—not a property or moral right.” But why does he think that copyright is not a natural or moral right? Because the Supreme Court has said so! As he wrote here, “In the United States, copyright is not a natural right, since the Supreme Court has said so twice, first in 1834 in Wheaton v. Peters, and then in 1932 in Fox Film Corp. v. Doyal”; see criticism here. Just another legal positivist. So he of course would think that, “As a government program, copyright must be regulated and held accountable to ensure it is serving its public purpose.” Whatever

Copyright must be properly recognised as a privilege, and criticised on that basis. It would be a pity for the insinuation that it is a natural right recognised by the Constitution to transform into an incontrovertibly established fact – though it’s pretty close to this already.

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

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

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

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

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

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

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

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

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

A Crescendo of Copyright

Natural Finale and Reprise

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

Abstract

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

Copyright’s 18th Century Overture

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

Copyright’s Confrontation with Cultural Liberty reaches a crescendo

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

Copyright’s finale, and the reprise of natural rights

  • 20?? the prospectus for mankind’s future

Prologue

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

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

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

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

Nothing to do with the printers’ monopolies then…

Let us see the historical accident of copyright in perspective:

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

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

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

18th Century Overture

Privilege

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

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

Principle

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prestidigitation

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

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

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

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

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

From the Thomas Paine National Historical Association

The Philosophy of Paine

by Thomas A. Edison, June 7, 1925

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

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

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

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

contd.

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

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

Article I, Section 8 of the United States Constitution empowers Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In response, Congress created copyright, patent, and trademark law and thus established a framework to govern the protection and exploitation of creative works.

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

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

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

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

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

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

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

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

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

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

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

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

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

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

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

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

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

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

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

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

In Federalist N°43 Madison wrote:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • The granting of copyright was unconstitutional.

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

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

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

A Crescendo of Copyright

Printing

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

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

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

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

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

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

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

Propertisation

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

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

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

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

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

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

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

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

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

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

Piracy

The first use of ‘pirate’ was in their blessing

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

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

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

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

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

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

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

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

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

To learn is to copy

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

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

Gary McCallister puts it a little more poetically:

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

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

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

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

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

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

To promote progress one must encourage copying and improvement.

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

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

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

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

Persecution

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

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

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

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

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

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

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

The Register published the following article in September 2010:

Harrow flicks pirate thrown in slammer

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Natural Finale and Reprise

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

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

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

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

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

Prospectus

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

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

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

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

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

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

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

At the earliest opportunity:

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

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

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

And within 5 years:

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

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

And within 10 years:

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

And within 15 years:

Repeal copyright.

The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

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

irdal said 2172 days ago :

This is a brilliant and inspiring article. WELL DONE!

Crosbie Fitch said 2172 days ago :

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

irdal said 2172 days ago :

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

Crosbie Fitch said 2172 days ago :

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

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

Crosbie Fitch said 2172 days ago :

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

it/is/on said 2161 days ago :

I copy.

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

:)

Crosbie Fitch said 2160 days ago :

Thanks it/is/on,

Probably something like this eh?

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

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

AeliusBlythe said 2137 days ago :

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

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

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

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

Crosbie Fitch said 2134 days ago :

Very good point about the ‘folk’ prefix Aelius.

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

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

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

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

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

KH said 2045 days ago :

Perhaps I’m missing something…

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

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

Crosbie Fitch said 2044 days ago :

KH,

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

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

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

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

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

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

AeliusBlythe said 2044 days ago :

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

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

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

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

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

Crosbie Fitch said 2044 days ago :

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

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

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

Aaeru said 1809 days ago :

Just wanted to add this transcript from Jeffrey Tucker:

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

Derek Bambauer on Copyright Greenwashing · Saturday December 22, 2012 by Crosbie Fitch

Derek Bambauer suggests the cartel’s attempt to frame copyright as ‘a natural right to be secured’ is greenwashing. I suggest it is because they’ve recognised I have a point – the US Constitution did not empower the granting of a privilege. See my argument with Karl

The US Constitution empowers Congress to SECURE the author’s (“solemnly adjudged to be a common law”) right to exclude others from their writings for limited times.

In 1787, in the New World and Old, most of those in the publishing industry were kidding themselves that a reproduction monopoly was a natural right and that the Statute of Anne (and various states’ legislative imitations) was a paltry legal recognition thereof. This is why James Madison (despite Jefferson’s suggestion to explicitly empower the granting of monopolies) knew he only needed to empower Congress to secure a right, in order to grant the monopoly of copyright.

By legislating the first US copyright act (Statute of Anne with minor edits) in 1790, most of those interested would accept this as the securing of a natural right (despite the fact that Madison & Jefferson knew damn well that copyright was the granting of a monopoly, not the securing of a right) – “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”.

Madison (who wanted copyright enacted) knew that a clause empowering Congress to grant monopolies would not have been ratified, hence his insertion of a clause that ‘secured a right’ – a pre-existing right (“endowed by their Creator with certain unalienable Rights”).

The point is, although the clause was APPARENTLY sufficient to enable Madison/Congress to grant copyright (by way of securing a common law right as others would assume) it was not ACTUALLY sufficient. Copyright is the grant of a monopoly and not at all law that secures a common law right.

So, Congress did not have power to grant copyright. It only had power to secure an author’s natural right to exclude others from their writings, i.e. our physical power to exclude burglars from copying our writings, such as our memoirs in our desk drawers (a natural right) – not to exclude those who purchase copies of those memoirs from us, from making and distributing their own copies (a privilege).

So, the cartel, conceding that the US Constitution empowered only the securing of a natural right, must now pretend that a reproduction monopoly is a natural right. And like James Madison, they will lead their audience to believe this without actually asserting it.

drew Roberts said 1595 days ago :

Seems the concept of no taxation without representation has fallen by the wayside a long time ago.

Monsters From The Id · Thursday April 25, 2013 by Crosbie Fitch

On Annemarie Bridy’s Freedom-to-Tinker post Copyrights, Fundamental Rights, and the Constitution a commenter by the name of Mike Lippert seems to think I am claiming that copyright is a natural right.

“Copyrights (and patents) seem clearly legal rights created and enforced by government, not natural rights”

Mike,

It’s good that you, me, and the judiciary recognise and accept that copyright (viz Statute of Anne 1709/1790 onwards) is a privilege created/granted by the state, to be enforced/prosecuted by the holder (albeit relatively recently augmented by state assistance thanks to concerted lobbying), at the holder’s pleasure.

The Constitution empowers Congress to secure the author’s (already existing/natural) exclusive right to their writings. It does not empower Congress to grant a privilege.

If the author already has a right, it’s a right they’re born with – not a ‘legally created right’ granted to them, or one they purchased/inherited/received from another author.

I have not actually equated common law rights with natural rights. However, it would be interesting to enumerate those common law rights that can be distinguished from natural rights, and to analyse precisely how common law is not simply an evolving codification of natural law. But, I digress.

By “aka natural right”, I suggested that Madison, in saying that copyright had been solemnly adjudged to be a common law right, intended his audience to understand that copyright was a natural right (inherent/innate to the author) that, by the proposed clause, Congress should therefore be empowered to secure.

If it wasn’t a common law right, and just another state granted privilege (such as a monopoly or Letters of Marque), then Congress would have to be empowered to grant it – not just empowered to secure a pre-existing right.

Remember, that while copyright/SoA was not unfamiliar to The Framers (or various states’ legislatures), the Constitution could not admit the existence of privileges already granted – in the new or old world. This is why Madison had to suggest that copyright wasn’t a privilege – in order that when he legislated the Statute of Anne as the 1790 US copyright act, people had already been primed to recognise this as law that ‘secures a common law right’ (though it is of course nothing of the sort, but the granting of a monopoly for the benefit of press & state).

The point is, the clause doesn’t actually empower the granting of copyright or patent, despite enabling Madison’s subsequent granting of those monopolies to proceed with little or no protest. We thus have the granting of the monopolies we call copyright and patent as a fait accompli, and today monopoly-loving lawyers bend over backwards to convince everyone that Congress, of course, had the power to grant these monopolies.

It’s all rather academic really. As Annemarie observes, the power of Congress is no longer limited by The Constitution, or at least, by strict readings of it.

James ‘Dr Frankenstein’ Madison chose to unleash Queen Anne’s ‘creatures of statute’ upon the American people, and now they roam the entire planet like Monsters from the Id.

Julián Landerreche said 1494 days ago :

The phrase “to secure the author’s (already existing/natural) exclusive right to their writings” isn’t just a very particular case of “to secure the owner’s (already existing/natural) exclusive right to their belongings”?

Reading that phrase, it’s easy to get confused by the wording (and years of indoctrination) and assume that the “exclusive right to their writings” means something else, like a supernatural power to control what others can do with the copies of his writings.

It says nothing about what others can do with their copies of an author’s writings, which brings me back to the generalization of that particular phrase: “to secure the author’s/owner’s exclusive right to their writings/belongings”.

The issue on that phrase seems to boils down to a misunderstanding of what copyright supporters and freedom supporters interpret as “exclusive rights”.

Crosbie Fitch said 1493 days ago :

Yes Julián, the author clearly has a natural (common law) right to exclude others from their writings.

Per Wheaton v Peters

while the common law undoubtedly protected the right to one’s unpublished writings — e.g. a diary, personal letters

This is why Madison primed his audience to understand the clause as empowering Congress to secure a natural right (by saying that copyright had been adjudged as a common law right), because securing the individual’s (natural) rights was the whole point of instituting a government in the first place.

That to secure these rights, Governments are instituted among Men

So, per the Constitution, Congress has power to secure the author’s exclusive right to their writings, and on the same basis, the inventor’s exclusive right to their designs, but not to grant transferable reproduction/manufacturing monopolies (for immortal corporations to consequently amass into an arsenal). Copyright (nor patent) does not secure a natural (aka common law) right, despite Madison saying copyright (& patent) had been adjudged to be a common law right.

Today, copyright is described as an ‘exclusive right’ precisely in order to hoodwink people into believing it to be the right that the Constitution empowered Congress to secure. But of course, the Constitution cannot empower Congress to secure a right that doesn’t already exist – only to secure one that does, or to grant a privilege (which would have been rejected by other Framers as antithetical).

Thus you will see lawyers carefully seguing from author’s exclusive right to copyright without actually declaring them to be the same thing. You can see Annemarie making statements about ‘Exclusive rights’ (in the sense of legislatively created ‘rights’) and then statements about ‘copyright’, but she didn’t actually say a) that copyright was the exclusive right the Constitution empowered Congress to secure, nor b) that copyright secured an author’s exclusive right to their writings.

It is amazing how many people think the progress clause clearly empowered Congress to grant/create copyright, even though, from Madison’s own explanation, the clause is intended only to empower Congress to secure an author’s common law right – because Madison knew that’s all the power he/Congress would need to legislate copyright/patent – because he’d already primed the other Framers with the understanding that copyright and patent were common law rights.

As Madison explains in Federalist #43

The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.

Hence Congress can secure common law rights – not grant monopolies – even though Madison knew copyright and patent weren’t common law rights and were obviously grants of monopoly.

While Madison may insinuate monopolies are common law rights to Framers en masse, when it comes to discussions with a conspirator, Jefferson, he reveals he knows precisely what he’s talking about, i.e. monopolies, and that they are privileges to be granted:

With regard to monopolies they are justly classed among the greatest nusances in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced? Would it not suffice to reserve in all cases a right to the Public to abolish the privilege at a price to be specified in the grant of it?

Corruption from the start, that even Madison acknowledged, that thanks to his weakness, we enjoy today – cultural and technological gridlock.

 

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