Friday, January 18, 2008

The Natural Rights Issue

Claims that copyright involves human rights or is a property right are based on the theory that copyright is also a natural right -- a right that exists independent of legislative enactment, even if there are legislative enactments. In the United States, copyright is not a natural right, since the Supreme Court has said so twice, first in 1834 in Wheaton v. Peters, and then in 1932 in Fox Film Corp. v. Doyal. Yet, rhetoric based on a natural rights basis for copyright are behind all the claims that those who use copyrighted works without permission are thieves or pirates. If copyright is instead a limited privilege that parcels out limited control to copyright owners, one might view issue differently.

Professor Tom Bell has a draft of a book that takes on these issues and many others, called "Intellectual Privilege: Copyright, Common Law, and the Common Good," available here. There is a lot of good thinking and research, and I encourage others to read it.


Crosbie Fitch said...

I look forward to reading it, but then who needs to read anything except the bottom line?

"This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 Unported License."

The author is thus stating that they may prosecute anyone for making unauthorised copies of their work, unless:

1) They attribute the authorship of such copies.

Credit is usually given as a mark of respect rather than extracted under duress. A lack of credit usually reflects badly upon the person who failed to give it. A threat of prosecution removes all hope of knowing that credit was given with good grace.

2) No copies are exchanged whether for money or labour in kind.

Most craftsmen permit others to recoup whatever value they add to their work, rather than threaten to prosecute them for it unless they get a cut.

3) No copies are used to produce derivative works.

To make one's work part of human culture, but at the same time denying others the liberty to build upon it, is anally retentive and contemptuous of the liberty one has had in building upon the work of others.

Christopher Fulmer said...

Crosbie --

Hmm... That seems better than the default rules, where you would replace the word "unless" with "even if".

You can do more under the CC license than you can with your morning newspaper. Have you stopped reading that as well?

William Patry said...

Crosbie's comment on every issue is consistent and may be reduced to two words; Abolish Copyright. It is a response that has no relevance in the real world.

Crosbie Fitch said...

It certainly has relevance in the virtual world of the Internet.

Privileges designed for ink on paper reproduction have no place in the digital domain.

The nature of information technology betrays the unnatural privilege of copyright.

And so the virtual world becomes relevant to the real world.

William Patry said...

Crosbie, why don't you give some concrete examples?

Crosbie Fitch said...

Concrete examples?

Comprising the fabric of the virtual world are billions of microprocessors, each of which has 99% of its instructions devoted to making billions of unauthorised copies or derivatives per second.

Seamlessly connecting the denizens of this virtual world are billions of ethernet connections distributing and duplicating billions of packets of information each second - without consideration as to whether the information within those packets is 'original' and authorised for distribution or reproduction by its copyright holder.

You have the web as one of the most popular applications of this internetworked infrastructure. However, metaphors from the print world have been introduced to make things appear somewhat familiar. Web 'pages' and page 'views' disguise the fact that the information upon a 'page' is being unavoidably duplicated in order for it to be 'viewed'. Similarly with music, whether streamed or downloaded, the same bits are involved, it's simply given slightly different behaviour to adhere to a different metaphor.

And then we move on to more sophisticated applications, distributed systems, that are designed to distribute and replicate information such that it is most available to those who have the most interest in it. Peer to peer file sharing is such a distributed system (though far more sophisticated and useful examples are yet to come).

The idea that even in this virtual world no 'original' information should be distributed, duplicated, derived from, or performed without evidence of authorisation, indicates that some people have mistaken metaphors for mechanisms.

Of course we can create analogues to paper and printing presses, we can even simulate censorship controls and privileges such as copyright, but only usefully for those who prefer to see the physical and legal constraints of the physical world unnecessarily introduced to the virtual. And it is only to such witting or unwitting believers that such constraints can apply, because it is only they who believe they are subject to such constraints.

For those people who do not need such constraints, who find no comfort or reassurance from them, the raw, uncontrolled, and instantaneous diffusion device that is the Internet offers far greater possibilities and utility.

Ultimately, it comes down to private vs public. What is private you have a hope of keeping private, whether on paper or computer. What you give to the public you cannot hope to control in terms of distribution, reproduction, or use. Once something is in the public domain, uncontrolled diffusion and use is the natural consequence.

The public will not selflessly protect mercantile privilege, especially if it is at unnecessary cost to themselves. What they will protect however are human rights, i.e. liberty, truth, privacy, and life.

So, even with instantaneous diffusion rendering the privilege of copyright moot, the public will still pursue human rights of:
LIBERTY - giving us freedom of expression (free derivation)
TRUTH - assuring accuracy in attribution (against plagiarism)
PRIVACY - protecting intellectual property (against theft)
LIFE - securing us as equals against harm (against violence)

Anonymous said...

Copyright originated in the charter of Stationers' Company in London in 16th century. The company had a monopoly on printing books and also a right to seize "offending books" so basically they were performing censorship. I cannot understand how a tool used to enforce censorship and grant monopoly can be seen as a "natural right".

William Patry said...

Dear Sir, your view is consistent with the late Professor L. Ray Patterson's, but they are I think way too myopic. First, they focus only on Britain, and then only on the book publishing industry in England for a limited period of time, ignoring other forms of subject matter. There were printing privileges in other countries well before the Stationers' Company, nor do I regard what the Stationers Company obtained a copyright right instead, since it had little to do with reproduction of an intangible right, and everything to do with control over physical copies.

Anonymous said...

Dear William, are you referring to the Italian and French printing privileges from the late 15th century? Or do you mean something even earlier?
And isn't the "reproduction of an intangible" based on the "control over physical copies" anyway?

William Patry said...

I was referring to them, but I don't think they referred to reproduction of intangibles.

Crosbie Fitch said...

I've just noticed that Kevin Kelly has written along similar lines to my previous comment.

See Better Than Free.

Dare I post his first few paragraphs without authorisation, and on this site of all places?

The internet is a copy machine. At its most foundational level, it copies every action, every character, every thought we make while we ride upon it. In order to send a message from one corner of the internet to another, the protocols of communication demand that the whole message be copied along the way several times. IT companies make a lot of money selling equipment that facilitates this ceaseless copying. Every bit of data ever produced on any computer is copied somewhere. The digital economy is thus run on a river of copies. Unlike the mass-produced reproductions of the machine age, these copies are not just cheap, they are free.

Our digital communication network has been engineered so that copies flow with as little friction as possible. Indeed, copies flow so freely we could think of the internet as a super-distribution system, where once a copy is introduced it will continue to flow through the network forever, much like electricity in a superconductive wire. We see evidence of this in real life. Once anything that can be copied is brought into contact with internet, it will be copied, and those copies never leave. Even a dog knows you can't erase something once it's flowed on the internet.

This super-distribution system has become the foundation of our economy and wealth. The instant reduplication of data, ideas, and media underpins all the major economic sectors in our economy, particularly those involved with exports -- that is, those industries where the US has a competitive advantage. Our wealth sits upon a very large device that copies promiscuously and constantly.

Yet the previous round of wealth in this economy was built on selling precious copies, so the free flow of free copies tends to undermine the established order. If reproductions of our best efforts are free, how can we keep going? To put it simply, how does one make money selling free copies?