Certain sectors of the Internet are all a-twitter about Mark Helprin's recent essay in favor of perpetual copyright. Much sound and fury has ensued, but a great proportion of it signifies nothing because it does not strike at the root of the argument that Helprin and his ilk make.
And striking at the root means recognizing this: that copyright is not a right.
There is no right to forcibly prevent others from making copies of texts, maps, music, photographs, movies, or any other creative product. There is a government-granted privilege to do so (enforced by the government's police power, which ultimately means the power of a gun), but there is no natural, human right to do so.
It is important to be careful about the language we use. If we accept the terminology that copyright is a right, then most people are going to associate it with the Bill of Rights, with the rights to life, liberty, and the pursuit of happiness, with the rights of man, with human rights, and with all manner of wonderful, positive, humanistic ideas about individual dignity and respectful interaction in a modern, civilized society.
But copyright is about none of those things. Instead, it is at root a government-granted and government-enforced monopoly that was originally created to protect the market access of printers' guilds and publishing companies, and that has been continually extended to cover music, motion pictures, still photography, and just about everything else under the sun. It is an unnatural privilege that has been wrested from the powers that be. It is not now and never has been a natural, human right.
We are up against a deep-seated, long-lived, deliberate twisting of moral and legal concepts -- a misuse and misdirection of our innate respect for individual rights, human dignity, and personal creativity -- a package deal of epic proportions claiming that a coercive monopoly and artificial privilege is a natural, human right. To grace this phenomenon with the noble word "right" was a stroke of genius by those who foisted it upon us in the first place. But I think that those of us who are concerned about perpetual copyright weaken our cause by continuing to grant that copyright is a right at all.
Once we recognize that copyright is in fact a government-granted privilege restricting market access to a single publisher (typically not the creator but instead an agent of the creator who brings a creative product to market), we can have a civil discussion about whether it is good public policy to grant such privileges, and for how long. But as long as that privilege is wrapped in the timeless, universalistic, moral language of rights rather than the temporal, consensus-driven, political language of privileges, we will never make progress in reforming the laws that govern publication of creative products.
(Such products are not "intellectual property", either. But that's a topic for another post...)
Carl Malamud has eloquently challenged C-SPAN president Brian Lamb to put its footage of Congressional hearings back into the public domain. His open letter concludes as follows:
Mr. Lamb, C-SPAN has been a pioneer in promoting a more open government. You created a grand bargain with the Cable Industry and the U.S. Congress. When I created the first radio station on the Internet and was asked why I did so as a non-profit instead of going for the gold like many of my colleagues, my reply has always been that I was inspired by your example.
Your grand bargain has served the American people and the C-SPAN organization well. Holding congressional hearings hostage is not in keeping with your charter, and it is not in keeping with the spirit of that grand bargain you made with the American people. Please re-release this material back into the public domain where it came from so that it will continue to make our public civic life richer.
Why should American taxpayers be forced to pay twice in order to monitor what goes on in the halls of Congress? By what right does C-SPAN put these archival materials behind a paywall? I join with Carl in saying: "Mr. Lamb, tear down this wall!"
In commenting on my essay Who's Afraid of the Public Domain?, Mike Linksvayer raises a practical question: how exactly do you put your creations into the public domain?
On all of the essays and poems I post to the web, I place a "public domain" image (linking to <http://creativecommons.org/licenses/publicdomain/>) and the phrase "no rights reserved" (linking to <http://www.saint-andre.com/me/copyright.html>); I also place a meta tag of <meta name="DC.Rights" content="Public Domain"> in the head of each page. Is that enough? Maybe not. According to this Wikipedia page, we face the following conundrum:
It is controversial, however, whether it is possible for a copyright holder to truly abandon the copyright of their work. Robert A. Baron argues in his essay "Making the Public Domain Public" that "because the public domain is not a legally sanctioned entity," a statement disclaiming a copyright or "granting" a work into the public domain has no legal effect whatsoever, and that the owner still retains all rights to the work not otherwise released. The owner would then have the legal right to prosecute people who use the work under the impression that it was in the public domain. It is certainly true that under some jurisdictions (which ones?), it is impossible to release moral rights, though that is not the case in the United States. A more likely problem may be the lack of factual evidence that the owner has indeed put the work into the public domain.
Some scholars of copyright law, including Lawrence Lessig, agree that it is difficult to put works in the public domain, but not impossible. The Creative Commons website, for example, has a public domain dedication form which produces an electronic receipt which is meant to act as legal backing for the dedication. Even if it is ruled that a work cannot be released into the public domain, a thorough dedication such as this one also releases all rights, so that the author retains only a free-use license. Lessig, however, argues that another licensing option, such as the Creative Commons Attribution-Only license, is a safer choice, and that click-through agreements are insufficient to put works in the public domain.
Hmm. There are several problems here:
American law was modified in 1976 to automatically put works under copyright, thus (seemingly) removing the option to place one's works directly into the public domain. This change supposedly protected creative individuals but in fact restricted their freedom.
The identity of the author is not necessarily clear from a legal perspective. Yes, I own saint-andre.com (look it up in whois), so presumably I have control over what is posted at that domain. But is my assertion that I am the author of, say, Who's Afraid of the Public Domain? legally binding? Well, it appeared at my website first, but it's not digitally signed, so who knows.
To overcome some of these challenges, Creative Commons provides a public domain dedication service whereby the author enters an author name, email address, and work title into a web form and Creative Commons sends an electronic receipt to the author and to Creative Commons. But who says that a given email address can be reliably associated with the author? A stronger method would involve the use of digital signatures, but that is prohibitively difficult for the average creative individual, who doesn't know what a digital certificate is, let alone have the tools that would make it easy to digitally sign documents, images, and the like -- heck, even I don't know how to digitally sign an HTML file with OpenSSL, and (thanks to Thunderbird) I digitally sign the email messages I send!
It's clear to me that we need better tools to enable rights-assignment (including assignment to the public domain) during the authorship phase -- support in word processors, desktop publishing programs, image creation applications, music recording software, and so on. We need better ways to associate electronic files with authors, whether through digital signatures or some other means. We need ways to register public domain works with a neutral third party such as Creative Commons. Then we need to start testing these mechanisms among authors and in the courts of law and public opinion.
In the meantime, I've updated my copyright policy to adhere to the guidelines that Mike mentions, and I've updated my essay to point to some helpful pages at Creative Commons.
I've just posted the initial version of my long-promised essay Who's Afraid of the Public Domain? -- feedback is welcome as always.
Wired has a fascinating article about the fate of "copyright" in Second Life, showing that creative solutions are needed to ensure recognition of creative output in an all-digital world. Check it out.
I got to pondering last night about my yet-to-be-written essay "Who's Afraid of the Public Domain?". Advocates of so-called copyright like to think that it is a natural right of the author. But those who have studied the history of copyright know that it was instituted as a government-granted and coercively-enforced privilege in order to prevent competition and to protect the monopolies of publishers and printers. I don't know about you, but I'm not a big fan of governments, monopolies, coercion, or privileges.
To me, even licenses such as the GNU Free Documentation License and the Creative Commons Attribution License are fine as far as they go, but they don't go far enough, since they still recognize the existence of copyright. But if I were to use such a license, I'd use the CC Attribution License (e.g., the JSF uses it for XMPP Extension Protocols); I happen think it's unnecessary since there are other ways to ensure that one's authorship is recognized (hint: publish early and often), but at least it seems to do little real harm.
NewsForge reports on Open Shakespeare, whose objective is to provide the complete works of Shakespeare in a completely open form. Wait, you ask, isn't all of Shakespeare in the public domain given that he wrote his plays and poems around 400 years ago? Well, not necessarily. The Bard certainly deserves to be open knowledge and the Open Knowledge Foundation is working to make it happen. Kudos!
One of my two favorite talks at OSCON was by Karl Fogel -- The (Surprising) History of Copyright, and What It Means for Open Source. The conclusions that Karl has reached based on his research into the history of copyright comport with mine: that copyright is a mechanism for retricting access to information (it grew out of early attempts at privatizing government censorship) and that it is utterly out of place on the Internet. Karl runs QuestionCopyright.org and has written cogently, even beautifully, on The Promise of a Post-Copyright World. Unfortunately, the myths about copyright are so prevalent and so deeply ingrained that it will take many years to dispel them, despite the emergence of what Karl calls a "free stream" of works that have been released by their creators without effective copyright control. Hearing Karl speak and chatting with him afterwards have inspired me to finally start writing my long-promised essay entitled "Who's Afraid of the Public Domain?" -- so I intend to have a draft of that available before too much longer...
Today I've exchanged a few emails with Brian Skinner of the OpenRecord project, which puts all its code into the public domain. Good for them! I promised Brian that I would finish my essay-in-progress entitled "Who's Afraid of the Public Domain?" so I really must get to work on that...
Tyler Cowan quotes from Richard Lanham's new book The Economics of Attention as follows:
In an economy of stuff, the laws of property govern who owns stuff. In an attention economy, it is the laws of intellectual property that govern who gets attention.
Wrong. What governs who gets attention is who creates interesting, attention-grabbing content (yes, I loathe the word "content", sorry to use it). The laws don't matter. What you create can be in the public domain -- covered and controlled by no laws whatsoever -- and you can still receive plenty of attention (after all, that's exactly what a classic is: an older work in the public domain that continues to garner attention). In fact this blog and my websites are in some ways an existence proof that Lanham is wrong, and I don't even work hard at getting attention, since I'm not particularly interested in that form of currency.
Adam Thierer as quoted at IPCentral (HT: Samizdata):
Almost every young libertarian I come in contact with these days is equally opposed not just to the sort of new copyright protections that the content providers seek, but even to traditional copyright laws and rules that pre-date the 76 Act. And not all of these people are wacko libertarian-anarchist types. Many respected young libertarian minds are turning against copyright. I don't believe that the best strategy is to ignore them. You guys should engage them in debate and defend your views before this extreme anti-IP position becomes more mainstream.
Oh my, hide the children! Extreme anti-IP positions! Wacko libertarian-anarchist types!
James DeLong comments further:
One possible explanation derives from a conversation I had with Don Boudreaux, Chair of the George Mason econ department. He commented that many Libertarians seem focused on the concreteness of physical objects, placing great emphasis on one's ability to possess them in one's own two hands. They distrust the idea of owning an abstraction.
But, he went on, in fact many property rights in physical objects, beginning with real estate, are equally abstract. Easements, leaseholds, life tenancies, remainders, mineral rights and usufructs of all kinds, depend on a substantial capacity for abstraction. Moving on to other kinds of property, many of our current possessions are only electric charges on a hard disk.
Don is clearly right. So there is an odd disconnection between the sophisticaton about the abstractions involved in rights in physical property and the relatively concrete thinking underlying the opposition to intellectual property.
So it seems that anyone who advocates for the public domain, who opposes copyright as a monopolistic system imposed by publishers to benefit themselves and not producers (read the early history of copyright, please), or who distrusts the idea of owning an abstraction (like, say, Thomas Jefferson) is clearly subject to what Ayn Rand used to call the concrete-bound mentality -- the native inability or stubborn unwillingness to grasp the existence of anything more abstract than mere physical objects and raw emotions.
Sorry, I'm not buying it, not least because it is craven psychologizing. If anything, it's the "intellectual property" crowd who mistakenly reify ideas and treat abstractions as if they were the equivalent of physical property, thus committing a serious category error.
Copyrights did not effectively exist before the printing press made publishing a lucrative business. Publishers wanted to enforce monopoly rents, but the industry got too big for their little guilds to enforce their cozy gentlemen's agreements, so they got governments to recognize copyrights and help them make more money for themselves (not the poor writers). It was technologically hard to copy books, so copyrights flourished. Now it is technologically easy to copy text, images, music, video, and the like when they are represented in electronic format. Technology has changed the rules, but the old media want to keep control. What they don't recognize is that the genie is out of the bottle. The key is the creators: will they side with the controlling old media or embrace the possibilities of the new technologies, place their works under Creative Commons licenses or (even better) in the public domain, and creatively seek to make money in this brave new world through advertising, patronage, performance, and the offering of unique products, services, and experiences?
In a letter to Isaac McPherson dated August 13, 1813, Thomas Jefferson wrote as follows:
It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.
U.S. law stipulates that for works produced after March 1, 1989, the copyright ends 70 years after the death of author. Think about that: if you're, say, 30 years old today and expect to live to age 90, anything you place under copyright will not pass into the public domain until the year 2136 (unless the U.S. Congress pulls another Sonny Bono, in which case it might be 2186 or more).
Am I the only one who finds this state of affairs paradoxical? If any works deserve perpetual copyright, it is the foundational works of human culture: Homer, Sophocles, Euclid, Aristotle, Confucius, Shakespeare, Newton, and the like. But those works are all in the public domain. It is the feverish production of today that will never pass into the public domain. Yet life changes ever more quickly, so that the code or text you write today will likely be quite out of date in five or ten years; forty years from now the Singularity revolutions might have already occurred, leading our ephemeral ejecta to be completely obsolete; and in one hundred years all bets will be off. Yet most of our blogs and code projects and essays and such will still be locked up under copyright protection. Is there not something wrong with this picture?
Yes, I understand the argument that ideas are becoming more important all the time (we've moved from an agricultural economy to a manufacturing economy to a knowledge economy) and that therefore ideas require greater protection; but it's also true that ideas are changing more rapidly all the time. So it strikes me that, given the tremendous pace of change today, copyright and patent terms deserve to be shorter than ever, not to be increased willy-nilly by legislators who are beholden to Disney, Warner Brothers, and their ilk.
Naturally, you can avoid gumming up the works for 120+ years by placing your creative output directly into the public domain. But I recognize that's a solution few creative people will embrace because it seems so scary to give up control over what you've produced. I think I'll entitle my forthcoming essay on the topic "Who's Afraid of the Public Domain?"...
Linus Torvalds saith:
... the reason GPLv2 is so successful at fighting the root problem of using copyright to fight restrictive copyrights is that it makes "interesting material" available under a license that forbids further restricting it.
I would suggest that anybody who wants to fight DRM practices seriously look at the equivalent angle. If you create interesting content, you can forbid that _content_ to ever be encrypted or limited.
In other words, I personally think that the anti-DRM clause is much more sensible in the context of the Creative Commons licenses, than in software licenses. If you create valuable and useful content that other people want to be able to use (catchy tunes, funny animation, good icons), I would suggest you protect that _content_ by saying that it cannot be used in any content-protection schemes.
Afaik, all the Creative Commons licenses already require that you can't use technological measures to restrict the rigts you give with the CC licenses. The "Share Alike" license in particular requires all work based on it to also be shared alike, ie it has the "GPL feel" to it.
If enough interesting content is licensed that way, DRM eventually becomes marginalized. Yes, it takes decades, but that's really no different at all from how the GPL works. The GPL has taken decades, and it hasn't "marginalized" commercial proprietary software yet, but it's gotten to the point where fewer people at least _worry_ about it.
As long as you expect Disney to feed your brain and just sit there on your couch, Disney & co will always be able to control the content you see. DRM is the smallest part of it - the crap we see and hear every day (regardless of any protection) is a much bigger issue.
The GPL already requires source code (ie non-protected content). So the GPL already _does_ have an anti-DRM clause as far as the _software_ is concerned. If you want to fight DRM on non-software fronts, you need to create non-software content, and fight it _there_.
I realize that programmers are bad at content creation. So many programmers feel that they can't fight DRM that way. Tough. Spread the word instead. Don't try to fight DRM the wrong way.
I agree on the need to license "content" under less restrictive licenses. But I'm still not convinced that using copyright is the right way to go. In particular, I think that putting your works into the public domain may well be the best avenue to prevent DRM schemes from proliferating. Consider what would happen if someone tried to distribute the works of Shakespeare under DRM. Would that threaten the open nature of Shakespeare's works? No, it would only cause people to laugh at those who attempted to DRM Shakespeare in the first place. IMHO the best protection against those who would close off content is to make it part of the public domain, distribute it as widely as possible, and publicize its existence and its freedom.
Those who would restrict access to ideas hate the open air. Making your ideas free as the air gives those people nothing to lock up and tie down.
On the train to work this morning I finished reading Recognizing the Public Domain by David Lange (originally published in Law & Contemporary Problems, Autumn 1981), which in footnote 20 quotes from Carmen, The Function of the Judge and Jury in the "Literary Property" Lawsuit (42 Calif. L. Rev. 52, 57-59 (1954)) as follows:
Regardless of the variations of terminology occasioned by the limitations of the English language in treating with such evanescent abstractions, the cases generally exhibit a surprising uniformity of approach and conception. The courts wholeheartedly recognize that ideas, new or old, when once disclosed must be kept "free as air" for all to use. They recognize further that the vast accumulation of human experience, the character of man and his world in all its varying phases, and the relationships of each to the other and to other men and other things, not only in the general but the specific, are not and cannot become the "property" of anyone regardless of how they are expressed. These things are the universal heritage, the public commons, from which all may freely draw sustenance and which all may use as seems most satisfactory to them.
Well said.
The other day I criticized the GNU GPL for capitulating to the fundamental model of so-called intellectual property -- i.e., insisting that the creator must assert control (enforced through government) over who may or may not propagate the creator's work. While I contribute all of my personal creations directly into the public domain, all of the protocol specifications I write for the Jabber Software Foundation are licensed under the Creative Commons Attribution License. Plus, I work for a company that releases code only under commercial licenses (though they generously support open standards). Doesn't that make me a hypocrite?
Perhaps. I'm not morally opposed to copyright, I think shareware and payware are fine things, and I'm not about to make a religious issue out of putting code and text into the public domain (I haven't gotten religious about anything since I gave up my youthful Randianism). So while I think there is little reason to be afraid of the public domain, I don't cast aspersions at those who still fear it. These issues are complex, and I don't claim to have definitive answers for all creative people and for all time.
Yet I do think there are plenty of ways to make money (though perhaps not plenty of money) even if you place your creative products in the public domain. Penguin Classics make money by selling books whose text is in the public domain. Theatre companies make money by performing Shakespeare. Folk singers make money by playing folk songs, as do musicians who play Bach, Beethoven, and the boys. These companies and individuals offer products (books and CDs) and experiences (concerts and plays) that have value even if the underlying "code" is free as the air.
The Free Software Foundation has started to work on Version 3 of the GNU General Public License, better known as the GPL (it's easiest to read Tim Bray's cleanly-formatted version). The GPL, which represents the notion of "copyleft" in contrast to copyright, talks a lot about freedom:
When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for this service if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs; and that you know you can do these things.
Yet GPL'd code is not free as the air, breathable without restrictions. Paradoxically, according to the FSF, true freedom entails prohibitions:
To protect your rights, we need to make requirements that forbid anyone to deny you these rights or to ask you to surrender the rights. These restrictions translate to certain responsibilities for you if you distribute copies of the software, or if you modify it.
In particular, consider the ramifications of the following statement:
Developers that use the GNU GPL protect your rights with two steps: (1) assert copyright on the software, and (2) offer you this License which gives you legal permission to copy, distribute and/or modify the software.
So, in order to protect your rights, a developer first must assert the sole and exclusive privilege to control who may propagate the code and under what terms -- a privilege that is ultimately to be enforced through the monopolistic power of a government. The GPL defines "propagate" as follows:
To "propagate" a work means doing anything with it that requires permission under applicable copyright law, other than executing it on a computer or making private modifications. This includes copying, distributing (with or without modifications), sublicensing, and in some countries other activities as well.
Note also that:
All rights granted under this License are granted for the term of copyright on the Program.
Finally, if you modify a GPL'd work:
The modified work must carry prominent notices stating that you changed the work and the date of any change.
Taken together, the terms of the GPL amount to a complete capitulation to "applicable copyright law", no matter what the content of such law. If a legislative body such as the U.S. Congress should decide, whether in its independent wisdom or under the influence of lobbying interests, to modify "applicable copyright law" so that copyright terms shall extend in perpetuity, the GPL would enforce that. If "applicable copyright law" were changed to require a government-issued license (complete with fingerprinting and other invasive measures) in order to modify or propagate a work, the GPL would enforce that.
As I see it, the fatal flaw of the GPL is step number one: the assertion of copyright. Because the assertion of copyright immediately entangles you in the web of copyright law, it implicates you in whatever copyright laws should be promulgated or modified by governments anywhere in the world. Because copyright terms have been extended continuously by governments, the GPL logically implies an acceptance of perpetual copyrights and therefore logically prevents GPL'd works from passing into the public domain of the common stock of knowledge and craft (and we are not far from converting that "logically" into "physically", I think). The GPL cedes the field entirely to government law-making, rather than basing its contracts upon natural law or the free marketplace of ideas (a lex mercatoria for the digital age).
The great worry behind the GPL and other such licenses is that someone will modify your work and fob it off as the original. Yet the answer to that worry is not restrictive licenses (viral or not), but the very act of publication: make your work public, sign it, date it, identify its author, establish its canonical URL, and loudly proclaim its existence to the world. If anyone else should dare to assert ownership over your work, the public record will make it clear whose claim has priority. (And, I think, the resulting publicity will only redound to the fame and repute of your work.)
So-called copyright is not an individual right but a government-granted privilege to control who may propagate ideas. Let not the lofty rhetoric of freedom obscure the basic fact of the matter: copyright is all about control (enforced, ultimately, at the point of a gun). A copyrighted work is not free as the air; only a work in the public domain is.
I've been doing quite a bit of reading lately on copyright, copyleft, trademarks, patents, and the like. I've been meaning to blog on the topic and I'd like to set up a new category for those posts, but what to call the category? I can't call it copyright because I might talk about trademarks and patents. But I don't want to call it "intellectualproperty" because I'm not convinced that there is such a thing -- much of what I want to blog about is questioning the very notion of intellectual property. It's a conundrum. :-)
Update: I've decided to call the category publicdomain.
Near the end of a long and important essay entitled Saving the Net (read the whole thing!), Doc Searls urges:
We need to make clear that the Public Domain is the market's underlying geology--a place akin to the ownerless bulk of the Earth--rather than a public preserve in the midst of private holdings. This won't be easy, but it can be done.
I've been planning for quite a while to write a screed in defense of the public domain, but haven't gotten around to it yet. But it's definitely creeping up my list of priorities! Part of my argument will be that both copyright and copyleft are misguided because they assert ownership over ideas, which in this age of Mickey-Mouse copyright extension means that anything over which you assert copy control today will never go into the public domain. So unless you believe in perpetual ownership over ideas, you need to put your work into the public domain right now (or, if you must, in your will). I've started to do that with all of my essays, dictionary entries, music, poems, blog entries, and the (admittedly insignificant) code I've written. I hope my forthcoming essay will help convince others to do the same, because, as Doc points out, the public domain is the bedrock of the 'net.
For the last few years, I've been thinking about the idea of a public domain press, which would:
Reading Jason Epstein's Book Business: Publishing Past, Present, and Future recently and talking about my idea with some insiders in the publishing industry have led me to realize that starting a publishing company is not a matter to be taken lightly. While I still find the idea intriguing, it probably is something that I will not pursue for a number of years, so I figured I'd finally blog about the idea in case someone else finds it inspiring enough to pursue it.
Wired is running a good article about the Free Culture movement. As I've written before, I think a big part of freeing the culture is convincing people to put their own works directly into the public domain. And the best way to do that is to lead by example.
While at IETF 60 last week, I got to thinking about the ethics of publication. To publish something is, literally, to make it public. Last year, I decided that whenever I publish something I would put it directly into the public domain. This may seem fairly radical: why not just go with the flow and let my works pass into the public domain 70 years after my death? The problem with this line of reasoning is that politicians and pressure groups are quite likely to extend copyrights again and again (you don't think the Sonny Bono Copyright Extension Act was the last such abomination, do you?). In fact, it would not surprise me if some future Congress decided to extend copyrights indefinitely, in which case my works would never pass into the public domain. One solution would be to will all my works into the public domain at my death, but it seems more straightforward to place them into the public domain immediately. To me, the public domain has become an ethical issue: if I ever want my works to pass into the public domain, I must choose to do so now rather than to have their fate driven by oligarchic legislators and corporations.
Chatting in the jdev room yesterday, talios said he was mentioned in an NZ Herald article on weblogs. Following some links, I came across this post on the undue restrictions in Creative Commons licenses (it seems that the Debian community has concluded that the CC licenses violate the Debian Free Software Guidelines). While thinking hard about content licensing last year, I flirted with the CC licenses but just never could get comfortable with them, which is partly why I ended up putting all of my writings and music in the public domain. CC < PD.
The other day, I received an email from Pierre Lemieux, whose essay Of French Caryatids and American Rednecks I continue to admire, and who recently added me to his links page. From his links page I found again the website of François-René Rideau (a.k.a. Faré), with whom I corresponded a number of years ago about TUNES (a project for a free, reflective computing system). It turns out that Faré has written some powerful essays on topics such as the absurdity of patents and a libertarian view on Microsoft. His thoughts on intellectual property (he calls it "information protectionism") are quite congruent with my evolved perspective. One of these days I'll write a manifesto on the importance of the public domain to creative individuals...
Recently, I worried about two things that might happen to works I've created:
I now realize that such worries are overwrought. Sure, someone could do such a thing. But there is no strong reason to think they would. In any case, the best solution is to "publish early and publish often", to make my works public and to make their identity is a matter of public record (which is essentially what I've been doing with my website since 1996) -- so that if anyone attempts to hijack or modify one of my works, the attempt will be open for all to see as an obvious fraud (or, in the terms of open-source software, at least a "code fork").
With the evaporation of this last worry, I am ready to state my opposition to so-called "intellectual property" even more strongly than before, and to entirely cease speaking of "rights" to my works. So I've updated my copyright policy accordingly:
I assert and reserve no rights over any of my works (such as my music, essays, and poems). I believe that copyright laws are an attempt to seek by force a monopoly on publication and performance, and therefore I do not assert copyright over my works. Furthermore, I also assert no exclusive moral right to modify my works. Thus all of my works pass immediately into the public domain upon publication or performance. Feel free to copy, republish, translate, arrange, or make derivative works based on what I have created. I consider it polite for you to contact me if you do so, but my prior permission is not required if you would like to use my works in any way.
The OED saith:
Patent 1. In letters patent, an open letter or document, usually from a sovereign or person in authority, issued for various purposes, e.g., to put on record some agreement or contract, to authorize or command something to be done, to confer some right, privilege, title, property, or office; now, especially, to grant for a statutory term to a person or persons the sole right to make, use, or sell some invention.
And:
Copyright 1. The exclusive right given by law for a certain term of years to an author, composer, designer, etc. (or his assignee), to print, publish, and sell copies of his original work.
The term "right" here is, I think, stretching it. Patents and copyrights are privileges granted and enforced by some authority, i.e., they are government-enforced monopolies.
One often hears the argument that no one would create anything without such government-enforced monopolies. But this does violence to historical experience. Homer and Sophocles, Plato and Aristotle, Dante and Shakespeare, Bach and Mozart, Michelangelo and Da Vinci -- world-historical geniuses all -- did not have the benefit of such monopolies.
Further food for thought regarding "intellectual property rights"...
Speaking of questioning assumptions, last night I read a strong argument against intellectual property rights at Roderick Long's weblog. Since I've long had vague questions about the status of so-called intellectual property (enshrined in my copyright policy), Long's argument makes some sense to me. He writes as follows:
Suppose I compose a poem and recite it to you. As a result, you learn the poem by heart. In effect, there is now a copy of the poem stored in your brain.
Who owns that copy?
The only answer must be: you do. You own yourself; you own your brain and the contents of your brain. If I owned the copy in your brain, then I would be a part owner of your brain, which would make you a partial slave -- which is morally untenable.
Now in addition to owning your brain and the poem stored within, you also own, let's suppose, a pen and some paper. You use your pen to transcribe onto the paper the poem that's stored in your head. Now there are two copies of my poem in your possession: one in your brain and one on the paper. Who owns the second copy?
Once again, you do. You produced that second copy using nothing but factors that you owned: your paper, your pen, and your brain (with your neuron-encoded first copy of my poem). That second copy is yours -- to keep, to burn, or to transfer.
Yes, to transfer. If you give or sell your copy to someone else, or if you use your copy to make a new copy to give or sell to someone else, or if you allow others to use your copy to make new copies, you are making a peaceful use of your own property. You are violating no rights.
There is a longer version of his argument on the web, which I find fairly persuasive on several grounds. One sticking point for me pertains to a "right" I've reserved to myself in my copyright policy: the "right" to modify my works. Yet is this truly a right? I wish that the identity, including the authorial identity, of my works be respected; but wishes don't manufacture rights. In particular I wish to prevent the following scenarios:
Both of these scenarios feel like fraud, theft, or lying to me as author of the original poem. But which is it?
If you claim that you wrote my poem, you're lying, since I wrote it. Naturally you could do this in the privacy of your own brain (commit the poem to memory, delude yourself into thinking that you wrote it, but never communicate that delusion to anyone else). I'm not harmed by your delusion. And you could, along the lines of Roderick's example, write the poem out on a piece of paper in the privacy of your home, but write out the author as you instead of me. Again, no one is the wiser, and I'm not harmed. Now you give or sell this piece of paper to someone else, or read the poem in a public performance, again claiming that you are the author. At this point, any recipient or listener has been defrauded. Perhaps, as in Roderick's example, my rights have not been violated at this point, but the recipient's or listener's rights have; so I could participate in the defrauding and therefore be harmed simply by buying (or receiving) a copy or by listening to the performance.
But the harm done to me seems different from the harm done to the unwitting customer. The customer doesn't know about the fraud until someone who knows the identity of the true author reveals that bit of information to the customer. At that point the customer may be outraged, or may not care a whit. But I certainly will care, because I created the poem. I have, as it were, a special interest in how this poem is presented. Does that special interest grant me special ethical or legal consideration?
Roderick doesn't address the matter of identity. He says it's "tacky" for you to sell copies of my work without telling me or compensating me, but as mentioned in my copyright policy, I don't care about copies, I care about identity. Selling copies does seem sleazy, but changing the author or modifying the poem feels unjust to me -- even if your modifications are an improvement!
I think I'll email Roderick about this and explore the issue out of band...
Tim O'Reilly strikes again, this time with some timely thoughts on file sharing and the fortunes of those who create music, books, and what nowadays people call "content" (ick). And speaking of timely, here's a fascinating article about J.R.R. Tolkien and intellectual property, explaining how he dealt with pirated copies of the Lord of the Rings back in the 1960s.