“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.

Alexander, if by putting your faeries in a box you can exclude me from them, then go for it. I’m not really sure you possess any faeries though.

If you can sell me a box of faeries such we can both identify and count how many faeries are within, and we can both exclude others from the faeries in our respective boxes, then that sounds promising.

If we can add and remove faeries to and from boxes, such that several people (in a double blind test) count the same numbers of faeries in a set of boxes (containing differing numbers of faeries), then we’re pretty close to establishing the physical reality of faeries.

The trouble is, we need to distinguish between a ‘faerie’ (a piece of paper shaped like a faerie) and a faerie (a tiny winged humanoid creature, ethereal or otherwise).

You can substitute faerie with triangle, and similarly distinguish between the ‘triangle’ (drawing of) and the triangle (abstract concept). You can put drawings of abstractions in boxes, but you can’t put abstractions in boxes.

You can even substitute ‘intellectual object’, but again, you need to distinguish between its physical description and the imaginary abstraction.

If you reverse this process, you should see that you are effectively trying to argue that faeries are real, and that you believe in their existence.

That the concept of faeries has played a significant part in mankind’s culture is true, but this doesn’t make faeries real, nor property (copyright notwithstanding).

You can physically possess a physical description of an abstraction. You can imagine, but cannot physically possess an abstraction – though thanks to indoctrination by sacred state granted monopolies, many people like to imagine that they can and should be able to possess abstractions (they make do with ‘all physical manifestations thereof’, given the abstract plane is still inaccessible to them).

So, Alexander, do you believe in faeries?

Being intelligent, we can think/imagine in terms of abstractions, and can conceive of a non-existent/abstract plane in which abstract ideas permeate. One might term this an ‘intellectual space’. However, if we start confusing the abstract with the real, and start believing that, despite a lack of physical power within the abstract plane, people have some kind of divine right to exclude others from the abstractions they ‘homestead’ within that abstract plane (or ‘intellectual space’) then we join the ranks of what can be termed ‘religious nutters’.

This is what happens when people are brought up in a world permeated by quasi-religious copyright/patent dogma that transforms ‘state granted monopoly’ into ‘god-given right’. People will dutifully waste their time trying to find ways of arguing the ‘truth’ they have received.

But, if each of us spends a tiny amount of time pointing out to such folk that the law arises from the nature of the people, not vice versa, perhaps such time is well spent?

So this is my tiny amount of time…

…and when the tide of liberty arose about King ©anute’s throne, his courtiers desperately finessed their arguments, that what they were observing was merely a predictable surge, that it would obviously have to occur in the process of obeisance to the king’s command.

When you’ve completed the finessing of your argument, Alexander, we can try it out on the people. I daresay it’ll have a lot of support from those espousing greater respect for copyright, but it’s those pesky delinquent masses you have to convince.

Property is that which one can put in a box, or erect a fence around, that which an individual has a natural and vital power (right) to exclude others from. This is where the law comes from.

Rights and property do not come from the law – however much those desperate to perpetuate state granted monopolies by other means finesse the law’s definitions of property.

That said, if you say that state granted monopolies are recognitions of property in ideas/designs/patterns long enough, you will fool many people into believing that because the protection of property is recognised as a human right so the protection of ‘property’ in ideas must be recognised as a human right.

If you corrupt the language you can corrupt anything, but it still doesn’t change human nature.

You can annul the right to copy from the law, but this does not remove the right to copy from the people.

King ©anute cannot hold back the tide of his subjects’ liberty – however brilliant the legal minds of his courtiers may be.

It doesn’t matter whether it’s an illegitimate concept. What matters is whether property in intellectual works naturally exists – as property in material works naturally exists.

Cavemen didn’t argue with each other as to whether flint stones were scarce or not. Property in their physical possessions was a natural epiphenomenon, not something that, through praxeological debate, cavemen concluded to be a legitimate concept.

If an author has written a manuscript and keeps it in their desk drawer, it’s as much their physical property as a caveman’s flint axe. In 1787 every author instinctively knew that they had an exclusive right to their writings – a natural right to exclude any other, not only from making off with the ink & paper, but also from manufacturing a copy.

What authors may not have realised was that James Madison wasn’t interested in the author’s exclusive right to their writings, but in the lucrative monopolies enjoyed by the British Press at Queen Anne’s pleasure. That is why he suggested copyright was a common law right, and why the first US copyright act was almost identical to the Statute of Anne. But, as we know, the author’s natural right to exclude others from their writings is not at all the same as the grant of a monopoly that annuls the people’s liberty and right to copy (to leave it, by exclusion, in the hands of a few – copyright holders).

The information age doesn’t demonstrate that intellectual property doesn’t exist. It demonstrates that reproduction monopolies in the ‘hands’ of a few corporations cannot co-exist with reproduction technologies in the hands of the people (having a natural liberty and imperative to share and build upon each other’s works).

Authors can, and will always be able to, lock up their manuscripts as their intellectual property, but they cannot, and never could, give their manuscripts to another and alienate from the recipient their liberty to copy them.

Also see my comments on Kinsella’s Debate with Robert Wenzel on Intellectual Property.

That which exists is rivalrous. That which does not exist is non-rivalrous. So what?

As with seawater, air is also something you can put in a bottle and exclude others from (ask a scuba diver). Just because there’s a lot of it, it doesn’t mean it’s non-scarce (in the economic meaning, if not the layman’s meaning) or non-rivalrous.

The point is not whether the rivalrous nature of things that exist is interesting or useful to observe, but that it doesn’t actually justify or explain anything concerning property.

No other animal has ever been interested in excluding others from things that don’t exist. It takes extreme intelligence and stupidity/superstition to start believing that one can – a peculiarly human talent. It is also rather crazy to develop esoteric terms/jargon to discriminate between things that exist and things that don’t, and to claim, tautologously, that because things that exist don’t have the nature of those that don’t, ipso facto we have property rights.

One could also use other terms such as ‘physically manifest’ or ‘enclosable’ instead of ‘exist’, but the good thing about ‘exist’ is that it helps people recognise the absurdity of claiming property in things that don’t exist. And yes, people then have to be reminded that although we may recognise that things that exist may be in the shape of a triangle, this does not mean that the triangle exists. Moreover, just because we can conceive of abstract objects such as triangles, this also doesn’t mean those abstract objects exist – nor does it mean that the abstract thing we call a concept (of a triangle) exists either, though again, we may recognise this concept in arrangements of ink on paper (the arrangement exists – the concept doesn’t).

So, yes, because human beings (as most animals) have a physical and vital ability to exclude others from things that exist, a power to exclude, they have a have a natural and equal right to do so. ‘Rights’ granted by gods, kings, or states, are obviously not natural. Hence the power to prohibit copies granted by Queen Anne in 1709, was only obtained by annulling the people’s natural liberty and right to make copies, such that this right, by exclusion, could be left in the hands of a few – so called ‘copyright’ holders.

A paper manuscript containing ink arranged into a description of a formula or novel can be kept in a box, and others can be excluded from both the material and the intellectual work therein. Others cannot be excluded from that which does not exist, e.g. the abstract pattern of that work that permeates the abstract plane – which is a rather perverse thought to have in the first place.

In other words, drawing a triangle does not give one any natural power over the abstraction or others’ use of it. Conversely, simply because one has no power over the abstraction or its use doesn’t mean one has no natural power to exclude others from one’s drawing. The drawing of the triangle exists. The geometric concept of a triangle does not.

That which exists may be property, but it isn’t property because it exists, but because we have the natural power and right to exclude others from those alienable objects that exist in our possession.

When you have eliminated the impossible, whatever remains, however improbable, must be the truth.

We must abolish copyright.

This is a conclusion anyone can avoid coming to – if they covet copyright’s corrupting power to constrain all others.

B is for Building

Build upon my published work!

Build upon everyone’s published work. You are naturally at liberty to do so.

C is for Copying, not ©

Copy and communicate all published works, yours, mine, everyone’s – to the far corners of the earth.

D is for Derivatives

See Originality.

Nothing is new under the sun. Nothing is 100% original. Everything is derivative in some way. Mankind progresses by building upon what has been done before – through exploration and improvement. There is no wrong in this. Develop derivative works of your own, however similar or dissimilar to those you’ve been inspired by.

E is for Enjoyment

Enjoy your natural liberty. Enjoy your own culture. Enjoy sharing in it with your friends. Enjoy sharing it with everyone!

F is for Funding

Feel free to fund my further work if you fancy more. Feel free to fund any artist whose work you would have more of.

Pay others for what you cannot or would rather not do yourself. Pay artists for their art. Pay printers for prints. If you can make your own copies and prefer to, do so. Ignore any state granted monopolies that prohibit such liberty.

Liberty does not mean artists work for nothing, even if monopolists may not profit so much. Even so, it may sometimes be prudent to give your work away to promote yourself, to win fans, and future funding. Free as in free speech, not as in free beer.

Copying is not a crime, nor does it pilfer pennies from the pockets of the poor – except in the eyes of those who covet copyright.

G is for Gutenberg

Gutenberg started the printing revolution. The Internet put the revolution into hyperdrive.

18th century privileges designed to quell sedition and piracy are running on empty.

Project Gutenberg is helping to demonstrate that paying authors to write novels is not precluded by ending the practice of purchasing books from those privileged by a monopoly or paying them for permission to print copies.

Copyright is a brake on the wheel of the communications revolution. Only the corrupt few can profit from the energy they sap, even as so much progress is lost as a consequence.

Set us free. Set our culture free. See how much faster we go.

H is for Honesty

Honesty is a moral obligation.

While you are at liberty to use any published work as you see fit, such liberty naturally excludes dishonesty, e.g. misattribution or misrepresentation.

As credit is a gift, and citing sources is a mark of respect (though fraught with peril today as it risks inviting copyright litigation), so appropriate attribution is up to you. A lack of attribution is not a priori dishonest. You have no moral obligation to provide attribution, but neither deceive your audience, nor be so neglectful that you cause confusion in this respect.

Misrepresentation would be where you might use an artist’s work in a way such that others are likely to incorrectly infer the artist endorses a product or political point of view.

It is in this aspect that moral rights can be identified and enumerated. Unfortunately, they tend to be corrupted by copyright-based thinking into yet another set of proprietorial privileges. For example, your moral right to integrity is not the power to veto changes another artist may choose to make to your published work, but the other artist’s moral obligation not to misattribute the changes they are at liberty to make to your work as yours, or authorised by you. It is a matter of truth, not of power over others (granted by the state).

I is for Intellectual Property

Intellectual work may be property, but copyright is an unnatural monopoly.

The intellectual work contained within the unpublished manuscript in your desk drawer is undoubtedly your intellectual property, but if you sell or give it to someone, or a copy thereof, it becomes their property – even if it is not their work.

The reproduction monopoly arising in an ‘original’ work, granted by the state, that empowers the copyright holder to sue infringers, is unnatural, nothing to do with property (except in attempts to corrupt the term), and hence an unethical derogation of an individual’s liberty – to copy or communicate that which they’d otherwise be at liberty to.

J is for Justice

Justice is expected through the instrument of government, but its privileges are instruments of injustice.

Wikipedia: 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.

K is for Kickstarter

Kickstarter and other such marketplaces enable artists to exchange their work for money, not a state granted reproduction monopoly for a pittance from a publisher plus their over-hyped possibility of the ‘lottery prize’ they call royalties.

These marketplaces will become more numerous, more sophisticated, and will represent a return to the pre-copyright method of funding. Instead of monopoly profits, a few patrons, or millions of fanatic micropatrons, or simply, fans, will offer funds in exchange for the artist’s art. Art for money, money for art.

It’s not simply ‘give it away & pray’, whether giving away your art to your fans, or giving away your money to your favourite musicians, but as in any market, it’s about coming to an agreement, an equitable exchange.

Don’t forget though, caveat emptor and caveat venditor still apply.

L is for Learning

Learn is from leornian – to tread in another’s footsteps, to copy another’s path.

But, as modern dogma has it, ever since Queen Anne first let slip the pretext that copyright would result in the Encouragement of Learning, we will be more encouraged to learn from each other because we are prohibited from copying each other.

The first question that should spring to mind is “What kind of law is it, that must be preceded by an unfalsifiable excuse?”. What other law, whether it be against theft, violence, kidnapping, or fraud, must have its enactment preceded by a claim that it will be for society’s benefit?

Even copyright’s fiercest critics still accept its pretext, that its purpose is philanthropic, and that the privilege may continue to be judged upon its mythical benefit to society, despite the fact that we have not witnessed the supposedly dystopian society that has long existed with printing, but without the alleged benefit of a privilege prohibiting piracy on its statute books.

How do we know we are benefiting from copyright if we’ve never known what our culture could have become without it? How does a slave know they are benefiting from their master’s care if they’ve never known what it’s like to find employment in a free market? It’s not a matter of benefit, alleged or imagined. People instinctively recognise the liberty they are born with, and are driven by the imperative to exercise it. If some want to pretend they must ask permission for their liberty, that a need to obtain such permission benefits them, then let them indulge in such a pretence, but do not let the state visit such injustice upon all.

If you look into copyright, if you dare question its pretext, then you should learn that its origins were entirely mercenary, in the interests of the state – and the press it would have beholden, and obedient to it.

That copyright encourages our learning, and feeds poor starving authors to so enlighten us, is a fairy tale once told by a wicked queen, and her successors for three successive centuries.

If we all dare admit the empress is naked, her empire ends.

M is for Monopoly

There are three notorious state granted monopolies: Copyright, patent, and trademark. Each monopoly differs somewhat in its concern and modus operandi, however, whilst some may claim they protect natural rights they are wholly unnatural, being unethical privileges enacted for the benefit of the state and the enrichment of those who lobby for them.

Copyright is not designed to help the individual author against the theft of their unpublished manuscript. It is a monopoly provided for the wealthy and powerful publisher to police the marketplace against competition (pirate printers). Contrary to dogma, it does not encourage learning.

Patent is not designed to help to the individual inventor against the theft of their unpublished invention. It is a monopoly provided for the wealthy and powerful manufacturer to police the marketplace against competition (especially foreign). Contrary to dogma, it does not encourage innovation.

Trademark is not designed to help the individual against passing off by unscrupulous competitors. It is a monopoly provided for the wealthy and powerful merchant to police the marketplace against competition (better value for money imitations). Contrary to dogma, it does not protect the public against fraud.

N is for the Nature of Rights

If copyright encourages anyone to do any learning, it’s learning about copyright, learning about its origins, learning the reasons for its injustice, learning about rights, what they are, where they come from, whether they can be granted, bought, sold, or taken away, and who by, e.g. gods, queens, governments, ourselves, mother nature, or accident, etc.

Thomas Paine has written about rights, as have others over the millennia preceding copyright. Obviously, those interested in continuing to enjoy copyright, ‘The Copyright Cartel’ we might call them, have also written about rights – in these last few centuries since 1709.

Depending upon whose writing you read, you will either learn that it is your human right to prevent others making unauthorised copies of your published work, or that it is a right granted by Queen Anne, that may be bought, sold, assigned, licensed, reserved, waived, or any manner of other things. You will also learn that copyright is a good thing, or that it is a bad thing, or even that it is a ‘necessary sacrifice’ for the greater good.

If you don’t want to risk shifting paradigms, and prefer the comfort of ignorance, then stick to the dogma you thus know and love. If you realise there are problems relating to copyright, and want to know whether those problems are with the people who disobey it or the privilege that is used to prosecute them, then learn on.

I’ve written about rights before, recently, and may well do so again soon.

O is for Originality

See Derivatives.

Thanks to copyright’s inculcation, originality may now be a common artistic aspiration, and something copyright lawyers will pretend happens every day, but it is unobtainable. The idea that it exists can be legislated, but then the law is an ass, made so by asses. Of course it shouldn’t be legislated, nor should we wish it to be.

Further reading: The Perfectly Acceptable Practice of Literary Theft: Plagiarism, Copyright, and the Eighteenth Century

P is for Privacy, not Piracy

Privacy is the root of property, and the only natural right an author has to exclude others from their work. One cannot both publish and remain proprietor. In other words, one cannot include AND exclude someone. You cannot tell someone something AND deny them their liberty to tell it to others – much as you might covet such a power.

Predictably, publishers pretending proprietorship will perforce pejoratively proclaim as pirates those folk who would enjoy their natural liberty to make and distribute copies or derivatives – contrary to the usurping proprietor’s presumption of propriety.

Daniel Defoe was there at the beginning of both copyright and piracy, and may even have some posthumous resonance at their ending: shipwrecked in a pirate bay, and naming a party of pirates campaigning to cease copyright’s punishment of individuals who engage in fileharing.

I refer of course, to The Pirate Bay, and The Pirate Party. These are harbinger’s of doom, both for the privilege of copyright, and the idea that those who ignore it are delinquent pirates.

Q is for Queen Anne

Queen Anne established the privilege we call copyright in 1709 – the root of all laws that prohibit one person from copying another. From 500,000BC to 1708AD, Homo Sapiens developed into a civilisation through copying, learning, and improving upon each other’s work. From 1709 onwards, we suffer the legacy of a legislative misadventure, a privilege that should have been abolished along with slavery, not one that should have been re-enacted in 1790 by a government supposedly created to secure its citizens’ liberty and the ending of monopolies (such as established by Britain’s Tea Act).

R is for Reform

Reforms of copyright are generally proposed by those engaged in doublethink – that it is possible to have a monopoly and cultural liberty.

One of the most popular kinds of reform is that of term reduction. This is presumably based on a supposition that if copyright only prohibited the copying of a work for a decade or so, as opposed to a century or so, that people would be more likely to respect the 18th century privilege, obeying it, than to disrespect it, ignoring it.

Piracy has occurred before, and where the state has realised copyright is too clumsy or ineffective (but never unjust), it has introduced compulsory licensing. There are those who suggest this applies to the Internet, and so a compulsory license fee (or mulct) should be levied upon all who use it, to be disbursed to poor starving artists (aka publishing corporations and collecting societies) according to the proliferation of their work. This idea for reform has not gained much ground because no-one has yet figured out how to accomplish it without making it easy for people to see that 99% of the mulct ends up in the pockets of corporations rather than individual artists. Further reading: The nature of intellectual property in the mid-twentieth century

There is, as it happens, one reform of copyright that does make it possible to have a monopoly and cultural liberty. This is where individuals (persons born with liberty) are exempt from copyright, but corporations (artificial entities unethically recognised as persons by law) are not exempt. So, human beings enjoy their natural right to liberty, and corporations enjoy the monopoly they so enthusiastically lobby for.

Generally, copyright reform is a conceptual trap, a means of lumping together those who’d abolish copyright, with those who’d change or replace it, with those who’d extend and enhance it. Reform is always on the cards. The state will get round to listening to people’s concerns in due course – invariably producing legislation that panders to the concerns of the incumbent powers, not those of the subject populace, e.g. The UK’s Digital Economy Act

If you campaign for copyright reform, at best you campaign for nothing, but the status quo, at worst, for the ratcheting up of that which concerns you. Obviously, if you support copyright, ‘best’ and ‘worst’ should be interchanged.

S is for Software Freedom

Software engineers, notably Richard Stallman and the copyleft movement, have helped demonstrate that copyright is socially counter-productive and uneconomic – however lucrative to the few monopolists in a position to exploit it.

Unfortunately, copyleft has also created a perverse dogmatism that the privilege of copyright is necessary for software freedom. I try to present the arguments against this misunderstanding in Copyleft Without Coercion.

T is for Thomas Paine

Thomas Paine provides a good understanding of natural rights, and helps explain why privileges that annul natural rights in the majority (such as our right to copy) in order to leave them, by exclusion, in the hands of a few (copyright holders), are consequently instruments of injustice.

Also see Thomas Edison’s commendation The Philosophy of Paine

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.

U is for University

Universities are supposed to produce and disseminate mankind’s knowledge, not to hoard and guard it, martyring those who would disseminate it – such as Aaron Swartz.

Are you really sure copyright encourages our learning?

V is for Value, not Vendetta

Value is subjective, but don’t confuse the value of the work with the value of the copy. Artistic work is typically expensive and highly skilled. Copies are typically so inexpensive and easily produced that machines can make them by the million.

Pay artists to produce art. Pay printers to produce prints. But for your liberty to make your own copies, pay copyright holders nothing but contempt.

If someone has copied you (without dishonesty/plagiarism), or is selling copies of your work, they are promoting you and to be praised, not to be punished or otherwise persecuted – however much power to do so you imagine copyright says you deserve. Value the contributions of others, don’t be vindictive against them, nor wage vendettas against those the demon of copyright is persuading you are unfairly profiting from your hard work.

W is for Work

Work does not constitute entitlement to payment. One must find those who want the work done, who would pay for it. Being paid for your work is about finding an agreeable, equitable exchange in a free market. Your right is to be at liberty to do so, not to abridge the liberty of others to do so – who may be paid to add value to your work or build upon it.

X is for Xerox

Xerox marked the spot at which making one’s own copies became cheaper than buying them, the moment at which the fate of the 18th century reproduction monopoly became sealed.

Y is for You

You are naturally at liberty to copy – that which you have found, that which you have been given, or that which you have bought. Your natural imperative is to share and build upon your own culture – to ignore copyright. Your natural power and right to copy is in your own hands. That you have been fooled to believe it is instead in the hands of a copyright holder is within your power to remedy. You must snap out of this delusion.

Z is for Zygote

The zygote is a clue that copying and derivation is so much a part of nature that it is essential for the progress of life itself. To copy is in our genes. To copy is human.

That a prohibition on copying, the abridgement of our liberty, is necessary for mankind’s learning and progress, is the lie of all monopolists corrupted by power, from Queen Anne and James Madison to The Estate of Martin Luther King.

Whereas slavery takes all liberties from a few, copyright takes a few liberties from us all.

Learn about liberty, your liberty to learn through copying, your cultural liberty.

The abolition movement continues…

Until, in 1709, Queen Anne re-instituted the monopolies the Stationers’ Company had become dependent on, but instead of making it a temporary, royal grant, she made it law, the law we now call copyright, and by so doing, she annulled mankind’s natural right to copy.

Our right to copy may no longer be recognised by law (save in vestigial form as ‘fair use’), but being innate, it remains within us. By nature, we all have the right and power to share and build upon our culture. It is our imperative to do so.

• Our survival, mankind’s survival, our DNA’s survival depends upon the freedom to copy each other.

Don’t just take my word for it. John Baker has found other voices:

We are all gradually realising that we’ve been indoctrinated with a lie.

Copyright is not an artist’s right, it’s an unethical privilege granted for the benefit of the state (enjoying an enriched, and consequently beholden press).

The artist’s right is to copy.

The scientist’s right is to copy, to learn (from OE leornian, to tread in another’s footsteps, to copy another’s path), to improve mankind’s knowledge, and to share it, freely.

Your right is to copy.

Everyone’s right is to copy.

Sing each other song’s. Tell each other’s stories. Learn each other’s lore. Copy each other’s words. Share them. Build upon them. Don’t let the publishing corporations’ copyright lawyers make you feel ashamed for this ‘sin’, make you attempt to hide your sources. If you are flagrant in naming those you have copied, those who copy you will be flagrant in naming you.

It’s time to bring Queen Anne’s three hundred year old legacy of cultural repression to an end.

Even Stephan seems happy to accept a ‘scaled back’ implementation rather than insist on abolition, by which I suspect he’s still fixated on term reduction – “And this means copyright, which is the engine behind all these things, is wrong, and must fall, or at least be radically scaled back, not strengthened.”

Copyright annuls the people’s right to copy, to leave it, by exclusion, in the hands of a few. See T.Paine

The only way one could ‘fix’ copyright and still keep it (until such time as its brainwashed supporters die out) is to exempt individuals, i.e. copyright is reformed into a monopoly that constrains only unnatural persons – corporations.

A corporation is an artificial entity in the first place, having no natural rights, so subjecting such a legal artifice to the legal artifice of a monopoly offends only economists, not ethicists.

I think Stephan would find this a far better ‘solution’ than the half-baked “Let them share Elvis” idea of a shorter copyright term, which would simply result in far more draconian enforcement, more kids in prison, more families bankrupted, and everyone who suggested a shorter term being ‘the answer’ being treated like a pariah.

Remember, there are no corporations languishing in prison for copyright infringement. That’s not because they are upstanding citizens (able to resist the instinct to enjoy their natural liberty to share and build upon their own culture), but because they have no bodies.

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.

“You could just as well say that property rights would not exist in the free market, because you need a governmental body to identify, assign and defend them. Patents are not arbitrary monopoly privileges granted by the government; they are the government’s recognition of an individual’s creative efforts and his right to the product of those efforts.” William Dwyer

Tell a bear his cave is not his property because he has no government to legislate it so. Tell a wolf the carcass he’s enjoying is not his property because he has no government to legislate it so.

Property derives from privacy, the individual’s innate power and natural right to exclude others from the spaces they inhabit and the objects they possess. Governments are supposed to secure such exclusive rights – on the basis of equality – as opposed to whoever is the more powerful.

No natural being has an innate power to control what others do with their spoor.

People may covet such power, but that doesn’t make it a natural right.

An author has a natural right to exclude others from their writings, as an inventor has to exclude others from their designs, and this right should be secured by Congress. However, should either author or inventor include another (in their confidence or otherwise) they have no natural power or right to control what that other may do. We lose no liberty in receiving a writing or design.

What takes our liberty away is legislative abridgement, specifically Queen Anne’s annulling of our right to copy in 1709 (and James Madison’s re-enactment in 1790), that this right may be left, by exclusion, in the hands of a few – copyright holders.

So, yes, if a ‘creator’ discloses their invention or writing to you, you are naturally at liberty (as you SHOULD be) to reproduce and/or sell copies as you see fit – no permission needed. Only patent and copyright annul your right to do so. And such liberty is inalienable, i.e. you can’t contract away your right to copy that which someone has given you (though you can contract away that which is alienable, e.g. a security deposit, forfeit upon being found to have made copies).

Moral rights derive from natural law, and so are not the privileges tendentiously misnamed as rights, though their legislative recognition often enhances/corrupts them with proprietary/unnatural aspects.

Given that we’re endowed by our creator with rights (nature → natural) and these are inherent and so a priori inalienable (as one’s shadow) then it should not be surprising that they are not transferable as privileges, nor do they exist separately from the human being endowed with them.

Governments are instituted among men to recognise and secure our rights, not to create privileges (by necessarily annulling the respective right in the majority). See The Declaration of Independence of the Thirteen Colonies.

So, authorship is a fact and perpetual. Misrepresenting authorship is a deceit and a violation of each audience members’ right to truth (from our natural/vital ability to apprehend the truth of our senses). The perpetuality of authorship does not arise because law or lawyers claim the author’s moral right is perpetual. Shakespeare is dead and has no right to be violated, but this doesn’t change the truth of who authored his works, nor does it make it open season for others to claim authorship. If one claims to have authored Macbeth one deceives one’s audience. It is not up to Shakespeare’s ghost to sue the fraudster per his ‘moral right’, but up to the government to secure the audience’s right to truth – to provide them with remedies against fraud.

As to divulgation, while an author has a natural right to privacy, to exclude others from their writings, they have no right to gag those to whom they confide their writings. Confidentiality is a matter of trust, not the power to alienate another from their liberty to disclose that which they have been entrusted not to (nor a legally granted power to punish them for their liberty). Obviously, at the natural end of the author’s life, so ends their natural right to privacy. However, those who inherit their belongings have their own privacy, so cannot be forced to disclose what they have inherited.

When you understand natural rights, you can then more easily understand where legislation strays from the path of securing rights to the granting of privileges, and where confusion inevitably arises.

A lot of confusion could be avoided if privileges weren’t pretended to be rights, but then that rather undermines the need to persuade the public that privileges are good things.

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

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

Copyright Is Unprincipled

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ideas as Property

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

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

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

Innate Rights vs Held Rights

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

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

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

Corruption of ‘Right’ as Privilege

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

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

Obligatory Honesty

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

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

Further Reading

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

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

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

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

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

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

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

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

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

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

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

The Declaration of Independence

The Declaration of Independence of the Thirteen Colonies
In CONGRESS, July 4, 1776

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.¹ — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

¹ Per Wikipedia This has been called “one of the best-known sentences in the English language”, containing “the most potent and consequential words in American history.” The passage came to represent a moral standard to which the United States should strive. This view was notably promoted by Abraham Lincoln, who considered the Declaration to be the foundation of his political philosophy, and argued that the Declaration is a statement of principles through which the United States Constitution should be interpreted.

The US Constitution, 1787

Article 1 – The Legislative Branch

Section 8 – Powers of Congress

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

…

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

The US Copyright Act, 1790

Copyright Act of 1790

1 Statutes At Large, 124

An Act for the encouragement of learning, by securing the copies of maps, Charts, And books, to the authors and proprietors of such copies, during the times therein mentioned.

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the passing of this act, the author and authors of any map, chart, book or books already printed within these United States, being a citizen or citizens thereof, or resident within the same, his or their executors, administrators or assigns, who halt or have not transferred to any other person the copyright of such map, chart, book or books, share or shares thereof; and any other person or persons, being a citizen or citizens of these United States, or residents therein, his or their executors, administrators or assigns, who halt or have purchased or legally acquired the copyright of any such map, chart, book or books, in order to print, reprint, publish or vend the same, shall have the sole right and liberty of printing, reprinting, publishing and vending such map, chart, book or books, for the term of fourteen years from the recording the title thereof in the clerk’s office, as is herein after directed: And that the author and authors of any map, chart, book or books already made and composed, and not printed or published, or that shall hereafter be made and composed, being a citizen or citizens of these United States, or resident therein, and his or their executors, administrators or assigns, shall have the sole right and liberty of printing, reprinting, publishing and vending such map, chart, book or books, for the like term of fourteen years from the time of recording the title thereof in the clerk’s office as aforesaid.

“securing the copies … to the authors and proprietors” ? Hang on. Congress only has power to secure rights, rights that people are born with – not to ‘secure copies’ such as the copy of a newspaper against other printers printing further copies of it.

“shall have the sole right and liberty” ? This ‘shall’ is not the recognition of a natural right, but the granting of a privilege, especially as only the holder shall have it instead of ‘all men’. And ‘sole liberty’ provides evidence that this aforesaid unalienable right of Liberty is being alienated from the majority to be left, by exclusion, in the hands of a few.

Isn’t that what Thomas Paine would say? Try his Rights of Man

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.

What eludes many people is that the so called Progress Clause of the Constitution neither grants copyright nor empowers Congress to grant copyright. Madison inserted the clause with copyright in mind – and also felt obliged to prefix it with a glib pretext “to promote the progress…” – but he was unable to explicitly empower Congress to grant that monopoly (though could be explicit when it came to granting “Letters of Marque” further on). He was unable to grant copyright because the grant of a monopoly was anathema² – the most he could do was to empower Congress to secure an author’s exclusive right to their writings. And this was in the hope people wouldn’t notice his/Congress’s later assumption of power to grant the monopoly of copyright – derogating from the citizens’ liberty instead of securing their privacy (their natural and unalienable right to exclude others from their private writings).

Congress has power to SECURE the author’s inalienable, natural, exclusive right to their writings, i.e. to protect their natural right (equal power) to exclude others from their writings. NB We have no natural power to give someone our writings (include them) and then exclude them – as copyright holders are gradually realising today, even with draconian enforcement powers. Congress can only secure the right to exclude others from our writings that we already have (that we were imbued with by our creator/nature).

Congress does not have power to annul its citizens’ natural right to copy, to abridge their liberty to share and build upon their own culture. The Constitution did not stipulate that Congress had the power to grant the privilege of copyright – unlike its stipulation that Congress had the power to grant Letters of Marque.

So, Congress should and can abolish the privilege it had granted without Constitutional power, i.e. the US Copyright act of 1790 and all enhancements thereafter.

_____________

² See Unequal Protection: Jefferson Versus the Corporate Aristocracy

Jefferson and Natural Rights

Back in the earliest days of the United States, Jefferson didn’t anticipate the scope, meaning, and consequences of the Industrial Revolution that was just starting to gather steam in Europe about the time he was entering politics in the Virginia House of Burgesses. He distrusted letting companies have too much power, but he was focusing on the concept of “natural rights,” an idea that was at the core of the writings and the speeches of most of the Revolutionary-era generation, from Thomas Paine to Patrick Henry to Benjamin Franklin.

In Jefferson’s mind “the natural rights of man” were enjoyed by Jefferson’s ancient tribal ancestors of Europe, were lived out during Jefferson’s life by some of the tribal peoples of North America, and were written about most explicitly sixty years before Jefferson’s birth by John Locke, whose writings were widely known and often referenced in pre-revolutionary America.

Natural rights, Locke said, are things that people are born with simply by virtue of their being human and born into the world. In 1690, in his Second Treatise of Government, Locke put forth one of the most well-known definitions of the natural rights that all people are heirs to by virtue of their common humanity. He wrote, “All men by nature are equal…in that equal right that every man hath to his natural freedom, without being subjected to the will or authority of any other man…being all equal and independent, no one ought to harm another in his life, health, liberty or possessions…”

As to the role of government, Locke wrote, “Men being…by nature all free, equal and independent, no one can be put out of his estate and subjected to the political power of another without his own consent which is done by agreeing with other men, to join and unite into a community for their comfortable, safe, and peaceable living…in a secure enjoyment of their properties…”

This natural right was asserted by Jefferson first in his Summary View of the Rights of British America, published in 1774, in which he wrote, “The God who gave us life gave us liberty at the same time; the hand of force may destroy, but cannot disjoin them.” His first draft of the Declaration of Independence similarly declared, “We hold these truths to be sacred and undeniable; that all Men are created equal and independent, that from that equal creation they derive rights inherent and unalienable, among which are the preservation of life, and liberty, and the pursuit of happiness.”

Individuals asserted those natural rights in the form of a representative government that they controlled, and that same government also protected their natural rights from all the forces that in previous lands had dominated, enslaved, and taken advantage of them.

As an example of this phenomenon here’s such a complaint from Bill followed by my response:

Bill January 26, 2012 at 11:17 pm
Crosbie Fitch, I disagree that the intellectual work (that is, the pattern of words) is Sheldon’s property. It is his idea, but not his “property.” The concept of “property” is indeed limited to material things that are scarce. You could call his idea “intellectual property,” but it seems to me that that would just be confusing it with actual property. And note that I don’t think this is just a semantic point. Rather, by calling his idea his “property” (intellectual property) you are implying that it has the characteristics of property. Property owners have the right to exclude others from their property. If you call Sheldon’s idea (the pattern of words in the article he writes) his property, then you false imply that you believe that he has the right to prevent others from using their property (their paper and ink or virtual equivalents) to reproduce the pattern of words that was Sheldon’s idea.

Bill, it seems that just as it is difficult for copyright supporters to understand that their monopoly is not a natural right, so it is difficult for those who have deleted the concept of intellectual work from their minds to understand that there can be such a thing as natural intellectual property.

The product we call intellectual work has precisely the same characteristics as material work save that intellectual work is far more easily decomposed into information (more easily reproduced and communicated). If, unlike copyright supporters, you don’t get too upset by the facility we have for copying intellectual work, then I don’t see why you should get at all upset at recognising intellectual work as property.

The thing I have difficulty understanding is why you can’t then resist inferring that I believe people have a right to prevent others producing anything similar to their own productions. Such a right, if it was imbued in us, would require supernatural power.

I have got a poem written on a piece of paper in my pocket and I can naturally, physically exclude you from it. You cannot read it or copy it without my permission. Now where you get mystical on me is to say that this means I believe I have the supernatural power to prevent you composing a poem that is similar to or indistinguishable from the one I have in my pocket. Of course I don’t. I have no natural power to prevent, or right to prohibit you from doing so.

Of course, once I’ve exchanged the property of my poem with you for an agreed payment you can then produce as many copies as you like – I have no natural power to prevent, or right to prohibit you from doing so.

Although authors may be enlightened to recognise the Statute of Anne as an abomination, I think it’s understandable if they sensibly refuse to recognise their writing as solely the material of the ink and paper it’s comprised of.

Towards a Relational Theory of Copyright Law
Carys J. Craig
Carys J. Craig, LLB (Hons), LLM, SJD, Associate Professor of Law, Osgoode Hall Law School, York University, Toronto, Canada
2011 288 pp Hardback 978 1 84844 839 1
Hardback £65.00 on-line price £58.50

As the synopsis of this book said it argued “that the dominant conception of copyright as private property fails to adequately reflect the realities of cultural creativity” it sounded to me as if this might be a pleasant change from much of the copyright lip service that gets written in academic circles.

So, let’s see how I got on when I started reading between the covers.

1. Introduction (download)

Funnily enough, even before reading the first sentence, my eye is caught by a revelation in the acknowledgements on the preceding page that Carys Craig previously published “Locke, Labour, and Limiting the Author’s Right: A Warning Against a Lockean Approach to Copyright Law“ (2002) 28 Queen’s Law Journal 1-60.

“Oh oh!” is my first thought. An author ‘Against a Lockean approach’ does not bode well.

The first paragraph inoffensively summarises our cultural predicament, but the 2nd paragraph which starts “Copyright law, which creates exclusive rights over intellectual expression, is one such regime” is the first thing that is a little too blithe for my liking. One should find immediately suspect the phrase ‘creates exclusive rights’, since, as we know, rights cannot be created by law.

So what does Carys think copyright is?

“Fundamentally, copyright is no more than ‘the right to multiply copies of a published work, or the right to make the work public and still retain the beneficial interest therein’”

Au contraire. We have a right to multiply copies of a work by nature. Copyright is law that annuls this right to leave it, by exclusion, in the hands of a few – privileged holders of our right to copy. This is why the term ‘holder’ is used (held in the hands of another). If it was the natural right there wouldn’t be any ‘holding’ about it. We don’t hold a right to our own lives, nor do we hold a right to our own privacy. We have the rights we are born with – we don’t hold them. We have the right to copy as much as we have the right to learn or to teach. Only unethical law can state otherwise, that a right we are born with is to be annulled for the benefit of the few to be favoured or privileged.

The author, originating their work in their private possession, has the natural right either to exclude others from it, or to deliver it to all and sundry, to thereby publish their work, but this is irrespective of any privilege. An author does not need a privilege in order to publish their work. A printer needs a privilege in order to prevent others competing with them in printing copies of a published work.

“From a utilitarian or instrumental perspective, the exclusive rights that copyright grants are justified as a means by which to maximise cultural production and exchange by encouraging the production of intellectual works.” Production is encouraged only according to the myth or revisionist pretext that has this as the primary motive for the Statute of Anne. As for justification, utilitarianism has no problem sacrificing the rights of the individual for the ‘greater good’ (aka the interests of the state), so to suggest that privileges such as copyright can be ‘justified’ in those terms insults the justice that recognises individual rights first, and the state second.

Carys Craig states “The overarching theme of this book is the need to discard notions of natural right, individual entitlement and private property in copyright theory, …” Ouch. The problem with this is that copyright has already discarded these notions. Copyright annuls the individual’s natural right to copy. Copyright disregards the individual’s natural, primordial entitlement to cultural liberty. Copyright abridges the individual’s privacy in forbidding infringement even within it. Copyright even elides the fact that it is the individual’s natural right to privacy that gives rise to the exclusive right to their writings, not the granting of the privilege (which insinuates the natural foundation of privacy as legitimacy for the reproduction monopoly extending it into the public domain). So, I suspect that Carys Craig has swallowed the myth that copyright is a natural right or is a consequence of it.

The introduction does not bode well. I worry to proceed.

2. Constructing authorship: The underlying philosophy of the copyright model

Carys Craig well and rightly deconstructs a prevalent notion of author as creator ex nihilo, but still appears to see copyright as a moral defence of this, i.e. a right against imitation. However, copyright was not created for this. It is simply a commercial defence against unauthorised printing/reproduction (of copies or substitutes). This ties in with the prevalent notion that copyright is intended to prevent plagiarism, when it is simply a reproduction monopoly unconcerned with authorship or accuracy in attribution. As to imitation, one can imitate any other author (via their copyright protected works) as much as one wants (risking litigation only when distributing/communicating). However, if the copyright holding publishers of imitated & imitating works come to a commercially agreeable deal, then what the imitated author or their readers think about the imitating work is irrelevant. If the author is offended at being imitated they have to take it up with the copyright holder. Copyright is entirely a commercial privilege devoid of any moral consideration – notwithstanding any legislative lumping together of moral rights with copyright (the annulling of the right to copy).

It is several centuries of royal grant that gave the printers the idea they had a right to printing monopolies, and it is three centuries of a consequently institutionalised monopoly (of necessity arising in each ‘original’ work) that gives authors the idea they have a right to control the use of their work by others. It is not vice versa. Copyright was not created to derogate from the author’s ‘right’ to control their published work in order to serve the public’s interest in receiving it, and a century or so later to one day share and build upon it. Similarly, ad hoc printing monopolies weren’t granted prior to copyright in order that printers could protect the author’s ‘right’ to control who printed their work. We cannot understand the motivations for printing monopolies and copyright in terms of the notions they have engendered in us over the centuries.

So, I fear that Carys Craig mistakes the notions copyright has engendered (or helped perpetuate) as copyright’s basis or misguided mission. I’d suggest that it is only copyright’s supporters that imbue it with an authorial mission. One cannot find such a mission in the legislation itself.

I wouldn’t dispute that the author may have been elevated over the last few centuries coincidentally or as consequence of copyright and book publishing, and this may well lend convenient support to copyright if inveigled as an authorial right, but ultimately copyright was not created to further the author’s interests or protect their rights, nor even the public’s interest in incentivising authorship to promote their own learning as a consequence. One must not confuse purpose with pretext, however much more philanthropically appealing the pretext would appear to be.

“The persuasive force of Romantic authorship makes this an extremely powerful strategy for obtaining and strengthening copyright protection. As such, its function in copyright discourse has altered very little since the occasion of its first deployment in the eighteenth century literary-property debates, where it was an effective ideological instrument used to cloak the economic interests of the booksellers – ‘a stalking horse for economic interests that were (as a tactical matter) better concealed than revealed’”.

Thus Carys Craig must recognise that the Romantic author is not part of copyright’s mission, but used an excuse for it by the monopolist. The last thing the monopolist desires is for the author to be elevated above them within copyright legislation, e.g. to undermine ‘work for hire’ or to be prevented from surrendering their privilege to publishers (reversion is bad enough).

I sense that Carys Craig has failed to recognise that copyright has no sound ethical basis whatsoever, and that this recognition will forever remain out of her reach. Being unable to reach such a conclusion she is forced to ascribe philanthropic motives, aims, or objectives to copyright in order to criticise the legislation’s performance in those terms and to thus suggest that when these criticisms have been remedied, that whatever remains, must logically, however improbably, constitute a just privilege to suspend the public’s cultural liberty.

Despite joining many others who rightly deconstruct authors as producers of purely original work, Carys Craig still concludes that it is the copyright regime (not its supporters and the indoctrinated public) that is wedded to an invalid concept of authorship, instead of to an unethical monopoly (leaving as little as possible to the impotent authors). Moreover, despite paying lip service to the idea of questioning dogma, Carys Craig cannot help but repeat her own dogma that “The societal function of copyright is to encourage participation in our cultural dialogue”. How can Carys Craig uphold such perverse notions when she has just shown us that copyright discourages dialogue? How can participation be encouraged when imprisonment and/or bankruptcy are punishments for any repetition or evolution of another’s speech (to protect the printer’s traditional monopoly over such an act)?

That which encourages participation in our cultural dialogue is an audience of enthusiastic fellow participants engaging in acts of encouragement, e.g. response, cheers, or even payment.

Carys Craig may as well have said that “Prohibiting one person from repeating the words of another encourages discourse between them”. How can anyone let themselves become so brain damaged by copyright indoctrination that they will accept and embrace such statements as logical?

Books on copyright can be divided into four categories:

1. Monopolist: “Copyright is a priori good, but needs reinforcing against a delinquent public.”
2. Reformist: “Copyright is a priori good, but needs significant reform if it is to realign with its original, philanthropic mission.”
3. Neutral: “My analysis/history of copyright”.
4. Abolitionist: “Copyright is, and always has been, an instrument of injustice that should be abolished.”

I suspect this book falls into the second category.

3. Authorship and conceptions of the self: Feminist theory and the relational author

Carys Craig indulges in a rather tedious tract of sophistry by way of proposing a better conception of authorship. To me it’s obvious that we all regurgitate everyone else, our ancestors and environment, but if you need to over-intellectualise it, Carys Craig has ably catered for you.

However, she demonstrates again that she has mistaken privileges such as copyright as natural rights when she suggests that ‘rights’ are weapons: “The notion of the relational self challenges the liberal conception of the autonomous individual as an independent bearer of rights to be wielded against others and the state”.

It is the privilege of copyright that is the weapon, and it is wielded by the one entity powerful enough to wield it: the immortal publishing corporation, and wielded against the mortal individual (often on behalf of the state, interested to suppress sedition).

Rights are what the state was supposedly created to protect – especially to protect the individual against the de facto power of the state, e.g. against being tortured (even if guilty of terrorism, let alone suspected to be), or against being imprisoned without public trial by a jury of one’s peers.

Rights are not weapons to be wielded. Rights are natural boundaries of natural beings.

It is privileges that are the weapons. It is privileges that enable private prosecutions against others’ natural liberties that are the weapons – and they are doubly vicious when held by the legislatively spawned psychopaths we call corporations. A human being may hesitate to resort to litigation when begrudging another’s repetition of their words, for they only have one life and one reputation, but a corporation is immortal, impervious and decisive: it sues for profit without compunction. Corporate PR will ‘manage’ any human misery caused.

Carys Craig persistently uses ‘liberalism’ as a pejorative. I don’t know where she got her notion of liberalism from (perhaps Ayn Rand?) but it is a most illiberal one. She acknowledges that liberals recognise rights as innate to the individual, but then undermines this by suggesting that according to liberals “human relations are cast in terms of clashing rights and interests”. Rights do not clash – and cannot clash, by definition. It is true that a burglar may have an interest in violating another’s right to privacy, but then of course this is an interest clashing with a right. The right is simply the name for the equalised individual’s natural boundary, the natural limit of their natural power to repel others (unwelcome).

Perhaps some liberals believe that copyright is innate to the individual (and so diminish the standing of ‘rights’ and ‘liberalism’), but this doesn’t actually change the fact that copyright is a highly illiberal state granted privilege.

Indeed, if individuals had an innate (and magical) ability to prevent others retelling the stories they’d told, or to prevent others singing the songs they’d sung, then copyright would have been law long before the advent of the printing press and royal grants of exclusive control.

Carys Craig further underlines her rejection of natural rights when she says “Property rights are primarily about relations between persons and not the material thing that is owned. Moreover, there is nothing about property rights that make them intrinsic or pre-social: their significance is entirely dependent upon the rules and guarantees of the state.” So, because she mistakes copyright as a natural right and would reject it as such, she must therefore reject all natural rights – in order to ‘re-imagine’ everything (and copyright too) in terms of her new ‘relational theory’.

On this not uncommon basis of ‘natural rights are nonsense on stilts’ the space that is a bear’s cave is not its property without a state, nor is the object that is a wolf’s dinner (despite nature suggesting otherwise). If a state decides that property need not exist, or indeed should not be tolerated, then human beings subject to the state, unlike bears or wolves, will allegedly gladly abandon any primitive instinct to exert their natural power to exclude others from the spaces they inhabit or the objects they possess, indeed will allegedly be happy to abandon any ability to exchange such spaces or possessions and simply adopt a communistic ideal of free sharing.

Resonant with the dogmatic conclusion of the previous chapter Carys Craig drops another clanger when she concludes with a criticism of “Copyright’s failure to adequately recognise the essentially social nature of human creativity”. Copyright could only fail in this if it actually attempted it. It made no such attempt. It only attempted to effectively reinstate the per-work monopolies that the Stationers’ Company had become reliant upon (and so also remedy the surge in sedition that resulted from not renewing the Licensing of the Press Act).

She says “It makes no sense to talk of the author’s natural rights to own the fruits of her intellectual labour”, but of course I’d disagree. I doubt she’d have been too happy if her publisher had told her that she couldn’t claim ownership to the manuscript of this book and therefore could not claim entitlement to anything from them in exchange.

As naturally as a squirrel has ownership over the acorn in its hands, so an author has ownership of the manuscript in his or her hands, as well as the writing upon it – the result of their intellectual labour. Copyright has nothing to do with this natural exclusive right (except via insinuation and allusion).

So, when she then correctly says “Copyright exists only because it is created and defined by the state, and only to the extent that it is enforceable through state mechanisms” it is her misinformed induction that because she incorrectly believes copyright is a natural right granted by the state, authors have no natural right to own the fruits of their labour, and that therefore all natural rights are invalid because they are all created and defined by the state.

All this confusion could have been prevented if only someone had pointed out to her that copyright isn’t a natural right (and claims over the years that it is have been debunked a few times even in court).

She wouldn’t then redundantly conclude that “A relational theory of copyright thus repudiates any notion of copyright as a natural right of the author”.

I guess she never stopped to consider why a right would be called ‘natural’ if it was something created by the state.

It is further evident that Carys Craig has swallowed the pretext that copyright truly is the state’s mission to incentivise authorship on behalf of the public, and its current form as a reproduction monopoly merely represents its best attempt to do so.

This book is the sort of thing that could have been written by an enthusiastic drinker of copyright Koolaid, i.e. someone who dearly wants to help the state better achieve what they believe is its philanthropic mission to foster our cultural discourse – copyright’s apparent objective.

Oh dearie me.

I don’t know if I can face chapter 4.

4. Against a Lockean approach to copyright

Carys Craig suggests that copyright can be conceived of as a triadic relationship between author, the intellectual work, and the public. However, she bandies the copyright term of ‘protection’ around without reference to precisely how an author’s work is protected (and from what), and seems to believe this is protection of the ownership of the published work as the author’s rightful property. Copyright’s history as a reproduction monopoly destined for exploitation by the press, where it is the monopoly that is protected by that privilege, at the holder of the privilege’s expense (invariably not the author), is omitted from this relationship.

It’s a much simpler relationship that can be expressed without copyright:

• Human being speaks speech to others.
• Individual communicates with other individuals.
• Writer writes writing for readers ready to read.
• Author produces a novel for communication to the general public.
• In exchange for a commission, an intellectual worker produces and delivers intellectual work to their commissioners.

Copyright is an alien interloper wholly unnecessary in such a simple relationship.

If there’s any triadic relationship due to copyright it’s between the privilege holding press, the privilege granting state, and the ever increasing corpus of privilege ‘protected’ works.

In order to have an enriched and consequently beholden press to quell seditious propaganda in the state’s interest, the state grants a reproduction monopoly to arise in all ‘new’ cultural works – at the expense of the public’s cultural liberty (the annulling of the individual’s natural right to copy or communicate the cultural works in their possession or those communicated to them). That the author is the initial holder of a work’s copyright is a mere logical necessity – though a very convenient pretext to pretend as copyright’s raison d’etre. The other pretext is that being obliged to pay authors (as little as possible) for transfer of their monopoly to the press this thus ‘richly’ rewards and incentivises authors to write that which no-one else would otherwise commission, and so therefore amply compensates all authors and readers for their loss of liberty in being able to copy, perform, adapt, translate, or build upon their own* or any other author’s published work, and compensates for the high, monopoly-protected pricing of a non-free market in such.

* Yes, copyright even annuls the author’s right to copy their own work – though they may (if they can afford it) retain the privilege or a license to do so. Carys Craig seems attached to the notion that copyright is a right of the author, and not the privilege of the holder.

Just as she mistook copyright for a natural right, Carys Craig then proceeds to mistake copyright as justified by Lockean labour theory. She seems completely blinded to see the monopoly as the natural property right, when it is nothing of the sort, but a state granted monopoly. Of course an author has a natural property right to their intellectual work, just as they have a natural property right to their material work, e.g. in weaving a basket. But the state does not grant them a monopoly in their baskets that no-one may make copies of a basket they purchase. Without copyright, an author naturally owns the words they weave into writing as much as they’d own the reeds they may weave into baskets. But, without copyright, an author has no power to prevent others making copies of their writing, just as they have no power to prevent others making copies of their baskets – ONCE they’ve given them to others or exchanged them with others.

Locke deprecated the monopolies enjoyed by the Stationers’ Company and it does his name a disservice to suggest that there exists a Lockean justification for copyright.

Carys Craig further consolidates the idea that copyright is the right of the author, not the privilege of its holder. And she also can’t help but repeat the myth that copyright’s purpose is ‘to promote progress in the science and useful arts’. The US Constitution never actually made any statement concerning copyright, despite the canard that it did. “to promote progress in the science and useful arts” states the consequence of the Constitution’s empowering of Congress to secure to authors the exclusive right to their writings (not the consequence of Madison granting copyright for the benefit of the press). Note that this section of the Constitution does not empower Congress to grant the privilege of copyright nor any reproduction monopoly, but it DOES empower Congress to grant Letters of marque and reprisal. Power to secure a right is categorically different from power to grant a privilege, and the latter is not implicit from the former – though it seems Madison found this possible when he later re-enacted the Statute of Anne for the benefit of the US press.

By the end of chapter 4 I’m beginning to suspect that Carys Craig is misrepresenting natural rights as copyright’s justification in order to discredit them and undermine any reference to natural rights as justification for copyright’s abolition. Why else does she persist in the doublethink of holding copyright as a natural right simultaneously with the recognition that it is a privilege created by the state?

Carys Craig must either wrongly believe that Locke posited that baskets forever remain the uncopyable property of the weavers who wove them, or Carys Craig must recognise, as Locke did, the difference between property and a state granted reproduction monopoly. I fear Carys Craig is leaning toward the former.

At least Carys Craig has introduced me to the astonishing news that there exist some people who believe copyright is both a natural right, and that it can be self-evidently recognised as such allegedly according to Lockean labour-acquisition theory (despite being the most complicated and poorly understood law ever to appear and remain on the statute books).

5. The evolution of originality: The author’s right and the public interest

Carys Craig wastes everyone’s time on a wild goose chase in pursuit of originality. This is beating about the bush of:

• Originality for the purposes of copyright is that which can be protected by copyright and via provenance isn’t (or hasn’t been) already protected by another copyright

Copyright isn’t about rewarding originality, it’s about protecting a monopoly. Originality is merely an alternative term for ‘that which is not already protected’. It is a simple consequence of logic that one monopoly cannot protect that which is already protected by another.

Interestingly, copyright is limited to a monopoly over reproduction by provenance, not by similarity (much as many assume). This means it is possible for what appears to be the same work to be protected by two different copyrights.

For example, what happens if two authors, one in the north of a country and one in the south, both coincidentally produce and publish an indistinguishably similar limerick? Both limericks, both being original, are both protected by copyright (neither is a copy of the other). Do the two copyrights collapse into a shared copyright? Or must every copy and derivative of each be careful to demonstrate its lineage? What if one copyright holding author is a laissez faire liberal happy to see their work proliferate naturally among the people and the other has transferred their copyright to a highly litigious publisher? Such are the conundrums that result from unnatural legislation.

6. Fair dealing and the purposes of copyright protection

“I hope to show that a property rights-based model, which focuses on the individual author-owner and overlooks the dialogical nature of expression, is not equipped either to respond to the needs and interests of users or to reflect the importance of downstream, derivative uses of protected works for society”

Firstly, copyright is a privilege that focuses on the corporate holder of our natural right to copy, which by its very purpose doesn’t so much overlook ‘the dialogical nature of expression’, but deliberately abridges it in order to create a monopoly over reproduction or communication of specific works.

Secondly, in terms of mankind’s culture, human beings are not to be relegated into mere users or consumers of ‘protected works’ but must remain recognised as freely communicating individuals – however much this undoes 18th century privileges. Shakespeare was not a ‘derivative’ user of protected works, but well read, culturally fluent and eloquent to boot. He needed no copyright, nor did those he read or derived from, nor did those who read or derived from him, though his printers may well have cherished any printing monopoly they could convince a king to grant them.

Although a monopoly can certainly be a lucrative instrument of commerce, it remains an instrument of injustice. It is not necessary to culture, nor to commerce, but it is of course nonetheless attractive to those who can obtain it. At some point in our state education system we are taught that a weaver who copies and sells another weaver’s basket is a competitor to be praised, but a printer who copies and sells a another printer’s book is a competitor to be imprisoned. And we are taught that this is nothing to do with the history of the printing press and the lucrative privileges granted to it, but the need to remedy nature’s failure to imbue authors with the power to prevent others printing copies of the books they publish, singers with the power to prevent others singing the songs they sing, comedians with the power to prevent others retelling the jokes they tell, fashion designers with the power to prevent others copying the dresses they sell, and shipwrights with the power to prevent others copying the hull shapes they develop (whereas weavers have to make do with selling their baskets in a free market rife with competition).

I remain surprised that Carys Craig maintains that copyright was created for the benefit of society rather than the press (and crown).

Chapter 6 starts off by reviewing fair use/dealing – discretionary ‘wriggle room’ provided to enable judges to deem infringements they consider benign as ‘not infringing’, but which is often sadly mistaken as a clearly defined set of acts concerning any covered work to which people retain their natural liberty. It seems that Carys Craig buys the idea that, re-conceptualised, fair use/dealing “allows the copyright system to advance the public interest in the creation and exchange of meaning, and not simply to guard the rights-bearing author against every unauthorised use”. Yeah, right – if you can afford a lawyer (as Lessig says).

Pretty much all the discussion on fair use/dealing amounts to a confusion between the individual’s obvious need of their natural right to copy (for research, cultural engagement, etc.) and the copyright holder’s interest in it remaining annulled so they can commercially exploit the reproduction/communications monopoly. The vastness of copyright law and books about it is primarily a consequence of this confusion and inherent conflict between the individual’s liberty and the privilege that annuls it (and the insistence on using the term ‘right’ for both). Carys Craig won’t shift paradigms (and write less verbose books) until she ends the doublethink that the 18th century legislative accident known as copyright can continue to coexist with the individual’s natural right to copy that preceded it, continued as ‘piracy’ in spite of it, and will remain after it.

Discussion of fair use/dealing segues into the snake oil that is ‘digital rights management’ and the laws (DMCA, EUCD, C-11, etc.) enacted to persuade people that such DRM ‘technology’ actually works (via punishments that underline that persuasion). Of course, goes the thinking, if people can be pretended to have only controlled access to a copyright protected work, whilst not actually being in possession of a copy, then they can’t even claim any need to make copies that might have fair use/dealing defences – since they have no copy from which to make any further copies.

Carys Craig comes to a rather feeble conclusion – failing to recognise that the DMCA and its ilk come from the same stable as copyright itself – that of the mercenary monopolist, not of the cultural philanthropist.

7. Dissolving the conflict between copyright and freedom of expression

Apparently this chapter is “concerned with the relationship between freedom of expression and copyright law, and more fundamentally, with what this relationship – its conflicts, tensions and purported resolutions – can reveal to us about the nature of the copyright interest”. It sounds promising, but something tells me Carys Craig will fail to recognise the elephant she’s been feeling her way around in all the preceding chapters and conclude that there is no conflict between the individual’s natural right to copy and this 18th century privilege that annuls it (after all, she thinks copyright is a natural right – god knows what she thinks ‘freedom of expression’ is).

Perhaps, Carys Craig wonders, “an absolutist conception of the right of free expression [oh, it’s a right now is it?] could render the Copyright Act unconstitutional. But then, as Nimmer reminds us, the ‘reconciliation of the irreconcilable, the merger of antitheses … are the great problems of the law’”.

Well, yes, legislators need a lot of veneer and PR spin to persuade the populace that the iniquitous privileges that abridge their liberty are not in conflict with it, but indeed enhance it. James Madison could not actually empower Congress to grant the monopoly of copyright, but he had a damn good try, and as it happened, hardly anyone noticed that instead of enacting law to secure the individual’s natural exclusive right to their writings, he simply re-enacted the Statute of Anne to rubber stamp the monopolies that the press in some states had already decided they needed. Strangely, US patent law was not against people copying each other’s designs, but doing anything similar. It’s funny how two monopolies can be so different when notionally sanctioned by the same Constitutional clause. It should be obvious why Madison declined Jefferson’s suggestion to explicitly grant monopolies “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”. Just we today pretend monopolies to be a right, so Madison preferred to infer from ‘power to secure a right’ the power to grant monopolies. An author’s or inventor’s privacy is a natural right (the natural boundary and power to exclude others from seeing or copying their private writings or designs). The privilege of a monopoly, a grant of power against competition, is neither a right nor its securing, but then who cares?

There’s a wee misunderstanding on page 205: “Individual B has the right to prevent A from copying expression substantially similar to B’s copyrighted expression”. Copyright is based on provenance not similarity – irrespective of similarity being used to determine whether copying is likely to have taken place. Of course, in practice, copyright being the privilege to threaten, it doesn’t matter whether an alleged infringement is a matter of similarity through coincidence or provenance.

Carys Craig ultimately fails to disentangle copyright’s supporters’ conflation of the monopoly with the author’s property right. Of course, speech and intellectual works can be physically fixed and bounded and can constitute property, but property is property. Property is not a monopoly that prohibits others from manufacturing copies/imitations of the property they purchase. Yes, copyright as a transferable privilege is a form of legal property, but in that context it is the privilege that is property, not the intellectual work it ‘protects’.

Failing to resolve freedom of expression with its constraint at the hands of the privileged, this chapter concludes, as I suspected it would, by restating the doublethink that “Only by giving sufficient consideration to the public interest that underlies copyright, and by recognising the social values that provide its foundation, can we appreciate the limited nature of the copyright interest, and the room it must leave for the ongoing generation and exchange of meaning”. With that paean to Queen Anne’s putatively philanthropic prerogative Carys Craig flagrantly ignores the monopolist behind the curtain as she serves us her saccharine jugs of ‘Copyright is good for our culture’ Koolaid.

8. Final conclusions

After seven tedious chapters, Carys Craig ends with a damp squib. She has nothing concrete to offer, and can muster at most a recommendation that there is a re-imagination of copyright as something to “facilitate the generation and exchange of intellectual expression such that nobody is denied the right to speak as well as to listen, to respond as well as to receive.”

She adds that “The good news for lawmakers is that this re-imagination, however radical it may appear, is easily within their grasp.”

Carys Craig thus displays her apparent belief that mankind’s laws are made by lawmakers, not mankind’s nature, and that with a mere modicum of imagination, the philanthropic aspirations she presumes Queen Anne had for her Statute can be achieved by legislators quite easily – presumably, if only they would let their imaginations loose and stop thinking in terms of the author’s presumed right to control the use of their published work (she still thinks of copyright as an authorial right, not as a monopoly intended for exploitation by the press).

“Thus reconceived, the protection that copyright grants to creators of intellectual expression is one means by which the State attempts to stimulate social engagement, dialogic participation and cultural contributions, all of which are aspects of the public good inherent in participatory community.”

Amen.

The book is subtitled “Towards a relational theory of copyright law” and appropriately so. There is no well defined theory here. There’s just a vague conjecture that there could be one and that by thinking of copyright with a less proprietary mindset one might move toward it.

Carys Craig’s book does the monopolist manifesto no favours. The most it accomplishes is a demonstration of the contortions a copyright apologist must put themselves through in order to argue that copyright might conceivably be made into the equivalent of its own abolition.

This book could be more coherent if rewritten – for an audience of readers in an alternate universe in which the privilege of copyright had never been granted. However, the only thing that such a book could present as possibly appealing to such an audience is a monopoly’s lottery prizes to the few (and the revenue to the corporations that administer/exploit it). One cannot offer a society used to cultural liberty the benefits of being prohibited from sharing or building upon its own culture of published works. Copyright is something the state enacts as a fait accompli first and finesses as an essential benefit to its people afterwards.

If Edward Elgar should be rewarded to the tune of £65 per copy for publishing any of their books, I suggest it’s “Rethinking Copyright” by Ronan Deazley. If you would reward Carys Craig for her work, I suggest you send that book to her after you’ve read it (that way she’ll presumably get £65 worth of a copy of an intellectual work, as opposed to a typically minuscule royalty if you bought hers instead).

“Copyright, Communication and Culture” by Carys J. Craig is published by Edward Elgar Publishing Limited.

Let’s imagine a country with a billion people, and a movie industry that produces a blockbuster movie for $1b in ‘movie production costs’, and prices it at a bargain price of $10 per copy.

To prevent copyright infringement hurting this highly productive industry, the government nationalises the Internet and freely distributes a copy of this movie to everyone, but deducts its $10 price via taxation. That means the movie industry has an ‘economic output’ of $9b ($10b revenue minus $1b costs).

Whereas, relying upon normal retail channels and good citizens to abstain from illicit file sharing, the movie industry is likely to have lost say $3b through infringement, leaving it with only $6b ‘economic output’.

Of course, anyone with any grasp of economics can readily translate ‘economic output’ as ‘revenue via extortion’, and ‘movie production costs’ as ‘costs at monopoly inflated pricing’.

Many people who propose ‘solving piracy’ with compulsory licensing schemes funded via ISP levies are unwittingly proposing such a scam (some wittingly), i.e. to solve copyright infringement by charging people a mulct via their ISP, and disbursing it back to ‘creators’ (copyright holding corporations) according to the popularity of the work.

Profits achieved via mulct or state granted monopolies are not benign profits such as may be achieved in a free market, but wholesale theft from the people.

In a free market (without monopoly), many movie production companies compete for the money of prospective viewers, i.e. haggling. The result is that there are modest profits, and actual/non-fabricated production costs drastically shrink to uninflated prices. In other words, your $1b blockbuster ends up costing $1m and is paid for by 100,000 fans subscribing at $10 each, and not being subject to copyright there are no reproduction/distribution/retail costs the producer can hide their ‘profits’ in.

Say goodbye to Queen Anne’s 18th century business model of extortion, and let us revert to the free market, as old as it is new. GOTO VODO for a glimpse of a new movie industry based on ancient, free market principles. Pay the artist for their work, not the monopolist for their copies.

Why is there this desperation to describe the infringement of copyright as ‘theft’, especially when nothing resembling theft actually occurs?

To really understand what’s going on you do have to drop down to the rights of the matter, and understand the difference between a (natural) right and a right annulled (privilege). Rights are imbued in human beings by nature and recognised by law. Privileges are granted by the state (Queen Anne, James Madison, etc.) and created by law that annuls the recognition of a right, e.g. people are no longer recognised to have a right to make copies of their possessions, of a certain type, for a certain period.

One either violates a right, or one infringes a privilege (disobeying the annulling of a right).

Theft is the violation of an individual’s right to privacy (their right to exclude others from the objects they possess/spaces they inhabit), by invading it & removing a possession. Moreover, invading someone’s privacy to make a copy of their diary and remove/communicate it without, is an equivalent violation.

So, a burglar copying an author’s private manuscript could indeed be said to be stealing the author’s intellectual property – an act of IP theft (a violation of the author’s exclusive right to their writings). However, this form of rights violation is categorically distinct from the act of making a copy of an eBook for a friend, or uploading an MP3 rip of a CD to a file-sharing site.

By nature, once an author, Shakespeare say, has sold or given you a manuscript or copy thereof, you are at liberty to do whatever you want with your own possession, e.g. destroy it, perform it, translate it, or make and sell as many further copies as you fancy (as you might copy a basket or vase). There is no rights violation in doing so.

In 1709 Queen Anne annulled this natural right of individuals to make & sell copies of their possessions (relating to literary/graphic/printed works). The privilege of ‘copyright’ was thus created (annulling the people’s right to copy, for some arbitrary period, e.g. 14 years from publication).

To disobey this privilege of copyright is an infringement. It violates no right of the individual. On the contrary, it is a liberty and right that the individual is born with, but prohibited by law.

So, applying ‘steal’ or ‘theft’ to copyright infringement is to attempt to elevate the assertion of a natural liberty contrary to privilege into a crime. Similarly, when people claim copyright is a right (as if a natural or human right, as opposed to a legislatively granted quasi-right) this is to pretend a right is being violated, rather than a privilege being infringed.

By derogating from a person’s liberty to utilise their own property in certain ways (in private or in public), it is actually copyright that constitutes theft, not its infringement.

This is why natural rights aren’t taught in school – they undermine the state’s interest in derogating from the people’s rights, and interest in preventing popular challenge to pretexts that privileges so created are in the people’s interest.

If everyone knew that copyright represented a loss of cultural liberty in the people, to provide a monopoly to enrich immortal publishing corporations (and control public communications in the state’s interest), then it is more likely that people would today be discussing copyright’s abolition and the restoration of our cultural liberty than what punishments would best deter infringers/thieves/pirates (see TechDirt).

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

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

What is the most important thing to know about rights?

Rights precede law.

Our rights are not created by law.

Our rights are imbued in us by nature.

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

What are our rights?

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

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

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

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

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

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

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

So, what is copyright?

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

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

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

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

Why was this Statute of Anne wrong?

Privileges are unconstitutional, inegalitarian, and unjust.

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

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

What is the consequence of granting copyright?

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

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

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

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

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

But then why has copyright lasted so long?

In the 18th century the press could be controlled.

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

Why can’t copyright work today?

Today, the press is us, the people

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

We, the people, are the press.

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

What is the current approach to making copyright work?

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

• 2005: Jammie Thomas-Rasset, 28, mother of 4, shared 24 files. Found liable for damages of $1.9m.

• 2005: Joel Tenenbaum, 22, shared 31 files. Found liable for damages of $675,000.

• 2010: Emmanuel Nimley, 22, iPhoned 4 movies and shared them. Sentenced to 6 months’ jail.

• 2011: Anne Muir, 58, shared music collection. Sentenced to 3 years’ jail.

• 2011: Richard O’Dwyer, 23, linked to sources of illicit copies. Faces extradition and prison sentence of up to 10 years.

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

Will we ever learn to respect copyright?

Mankind’s cultural liberty is primordial.

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

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

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

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

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

Is that my mission then, to abolish copyright?

No.

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

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

Or putting it slightly differently:

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

The solution is the question.

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

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

The monopoly of copyright is no longer effective.

Its artificial market of copies has ended.

So, what is copyright’s future?

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

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

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

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

_______________________________________

Have more questions? See QuestionCopyright.org

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

This article was previously published at ORG zine.

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

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

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

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

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

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

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

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

Stephen

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

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

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

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

Update

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

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

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

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

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

Here follows my response to Terry:

He he! =))

Remind me what the contest was again?

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

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

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

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

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

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

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

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

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

As for Creative Commons see: Creative Commons Cultivates Copyright

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

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

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

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

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

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

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

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

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

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

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

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

Without copyright we cannot have freedom?

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

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

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

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

Freedom is the power to compel disclosure?

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

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

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

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

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

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

• Why do people want to coerce others to publish their source code?

• Who are these ‘others’ who will publish binary derivatives without source?

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

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

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

‘Closed source’ is an epiphenomenon of copyright

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

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

As an epiphenomenon, ‘closed source’ falls with copyright

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

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

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

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

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

Freedom needs no coercion, nor derogation of privacy

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

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

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

Compare coerced disclosure with liberty

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The restoration of liberty suffices (copyright & patent abolition)

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

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