Copyright’s Conceptual Cul-de-sac

The following is my reply to Lolwut‘s Third Response.

Your comparison of communism and anarchy in this regard is likely accurate, but it only concerns the potential end-states into which they may transform; in terms of freedom the two systems themselves-that is, before a tyrannical ruler or state emerges-are as far apart from each other as can be. Also, it’s unfortunate for me to hear that freedom is not your greatest good; it has always been mine, subject to the sole-but crucial-constraint that individual rights are not violated.

Any politicized summum bonum should probably be an anathema to me. Politics are in my estimation a necessary evil, the forms of which are preferably governed and determined by ethnocultural morality and ethics. Further, morality in a strictly political context smacks of universalism, which I detest. My remonstrance to your eleutherophilia pertains less to its extremity and more to its disregard of extrapolitical factors.

I was very happy to read that you also champion freedom of expression, association, and self-defense, as well as advocate for non-interventionism; those are all principles which I believe in very passionately. Out of curiosity, of those ideologies known to you, which most closely corresponds to your beliefs?

Probably national liberalism. Alas, like contemporary “conservative” parties, most professed “national liberal” parties of the west are infested with craven white men who are terrified that televised progressives will call them racist, sexist, homophobic, etc. My political principles are predicated on the conciliation of ethnonationalism and “classical” (i.e. actual) liberalism, in consideration of the historic failures of both phenomena. In all verity, I don’t know that this is possible.

The reason I insist so strongly on limiting government to the protection of individual rights is because permitting government to do anything more, besides in the first place diminishing freedom without securing any additional rights, in the second place serves as a ready invitation for its growth as it claims that more and more good things must be done, that it is authorized to do them, and that ever more taxes must be collected, departments and agencies formed, and legislation passed in order to realize those ends, thereby reducing freedom even more and possibly also violating individual rights. The United States government was founded on very libertarian principles, but its natural inclination to expand its scope and authority, and our general willingness to allow this so long as it performs some good deeds along the way, has resulted in its growth into one of the most expansive and powerful governments on Earth which constantly attempts to undermine and circumvent the intent of, and protections of individual rights guaranteed by, the Constitution. At one point you write that you are someone who believes that his government is larger than it should be by orders of magnitude, which is a sentiment I also wholeheartedly agree with-don’t you think that its progression to its current enormous size could have been prevented, or at least greatly delayed, if only we had followed more closely the principles of the Constitution?

Sure, but if Jefferson’s interpretation of Constitutional dictate was strict, the Louisiana Purchase would’ve never happened. The nation itself would’ve been a fraction of its present size, and struggled to outgrow the limitations of its agrarian economy — if it survived long enough to do so.
Jerfferson’s characterization of tyranny as a conspicuously recrudescent phenomenon is one with which I wholeheartedly assent. The trouble with this country was its gainful, nearly exponential governmental expansion from the Civil War through the Second Gulf War. This occurred because western and central Europeans are technologically innovative, but also childishly amenable to the prospect of waging war against those who live differently than they do. Institutional greed and universalism have done nearly so much to realize tyranny as militant Marxism. Adherence to constitutional limitations simply wasn’t possible when white Americans were so disposed to defy it.

Here I’m reminded of a maxim stated by Hayek in his The Road to Serfdom: “We shall never prevent the abuse of power if we are not prepared to limit power in a way which occasionally may also prevent its use for desirable purposes.”

I could concur with this sentiment, but not necessarily the threshold by which we’d inhibit power. Moreover, one of the many failings of neoliberal economics (to which too many libertarians subscribe) is its obliviousness to the basic reality that private enterprise grows, consolidates and corrupts in a manner analogous to government, and so must be subject to regulation.

Referencing my copy of Anarchy, State, and Utopia, I can report that Nozick devotes only half a paragraph to the subject of copyright and does not even state his position on it, but merely mentions the disagreement between libertarians on the matter as an example in order to illustrate another point.

Feel free to post it. I seem to recall that the passage was implicitly denunciatory.

A cursory Web search on my part also doesn’t yield anything pertaining to his views on copyright; if you know of a book or essay in which he expresses those views, might you send it my way? I would be quite interested to read his thoughts on the topic.

Sure, but I can’t imagine when I’ll read him again. Other than Socratic Puzzles, most of Nozick’s subsequent work steps lightly on matters political.

Upon inspection, it appears that even the aim of the Copyright Act of 1790 was simply to promote the production of creative works rather than to secure/protect any natural right: the beginning of the act’s long title is An Act for the encouragement of learning, which is the exact same as that of the Statute of Anne; and Section 1 of the act, again like the Statue of Anne, only confers, but does not secure, any rights:

the author and authors of any map, chart, book or books already printed within these United States … shall have the sole right and liberty of printing, reprinting, publishing and vending such map, chart, book or books … 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 … shall have the sole right and liberty of printing, reprinting, publishing and vending such map, chart, book or books … (emphasis added)

Again, a natural right, by definition, is not conferred by a government. However, I don’t want to focus too much on analyzing the specifics of the phrasing of the act, because the more important thing, I think, is to address the example of the car I provided in my previous response. Of course the law handles even real and personal property differently, and hence to argue that copyright law ought to function the exact same as personal property law is nonsensical-but this was not the point I was trying to make. My point was that a natural right cannot automatically expire after a predetermined amount of time set by statute: they are held by me for as long as I am alive, and cannot be taken away by the government in such a fashion. Such is the case not only with my property rights in my car, but also my property rights in my house, as well as all my natural rights outside of my property rights, like my right to self-ownership, to freedom of speech, to self-defense, to freedom of association, to freedom of religion, etc.: assuming that no immoral act is committed to forfeit them, I hold these rights for the entirety of my life, and the law also reflects this. Yet copyright law lacks this essential characteristic which is present in the laws concerning all these other indisputable natural rights. (However, I admit that I could have mentioned these other natural rights in the previous response so as to clarify my point, rather than only offering the example of the car, which consequently led to this misunderstanding.)

Incidentally, copyright as bestowed in the United States is lifelong, occsionally encompassing the lifespan of the work’s heritor. If you’re so concerned about this, why aren’t you apoplectic that freedom of association has been steadily, amost entirely eroded since the mid-’60s?!

Returning again to the Copyright Act of 1790, even if you ignore the actual language of the act (which, as I showed earlier, indicates that it was passed merely to promote creative works, and not to secure any right), why would the Founding Fathers explicitly set the term of copyright to only 14 years instead of the life of the author if they believed that copyright was a natural right? They didn’t set any time limits to the individual rights guaranteed by, e.g., the Bill of Rights, because they must have understood that attempting to do so by statute would have been an absurdity, since those rights cannot just expire. In light of all this, I can only conclude that copyright is not an individual right, and also that copyright law in this country did not originate to protect/secure any individual right-in short, that (2) also holds true for the U.S.

Your argument that it doesn’t secure a natural right is tenable, but I dont’t expect a legal document to address the ethics or philosophy of its import. If anything, this highlights the shortcomings of copyright as an instrument to safeguard intellectual property, recognition of which should probably be codified in law — with respect to the technologies that presently render so many facets of copyright unenforceable.

A debate concerning copyright in which the subject of intellectual property is overlooked is as workable as a contestation pertaining to macroevolution that omits any mention of morphology. If you can’t defend your opposition to a phenomenon that you don’t understand, you’ve no ethical place to adjudge it.

I don’t believe that this is a fair assertion: copyright is a distinct thing, with its own definition and accompanying set of laws that may be understood by themselves, without invoking the concepts of patents, trademarks, and intellectual property in general. We’ve certainly managed to have a long (and fruitful, I would say) discussion on copyright without venturing into the wider category of intellectual property.

It is inevitable. If you want to rescind copyright, you must replace it with something superior; in doing so, you must acknowledge the conditions and some insurance of intellectual property.

Regarding copyright in China, I’m well aware that legislation formally exists, but we all know that actual enforcement, aside from some exceptions in which the infringement was simply too conspicuous to ignore, is far more lax when compared to the U.S. or other parts of the West. For instance, could you imagine a small store here selling bootlegged DVDs and Blu-rays openly and for any significant length of time, even if all the DVDs and Blu-rays were of non-U.S. origin?

Yeah. I’ve patronized dozens of them, in Chinatowns and elsewhere. I have no problem with bootlegs or filesharing when the creators thereof are deceased, domestic distribution is nonexistent, or the work in question is out of print or otherwise unavailable.

Yet from my time in China-including even in Beijing and Shanghai-I can inform you that this is what daily occurs there, and it’s not widely considered disreputable. Those sellers, to me, had great freedom in this regard, and I hope that China will always retain this aspect of its culture. Perhaps things have recently begun to change, and enforcement is becoming more common, in which case I can only declare: Keep your foreign idea of copyright out of China, you Westerners!

Meanwhile!
Either you accept that China’s government partially and vigorously enforces copyright of works in which Chinese interests and profit are at stake, or you don’t. That’s no more my concern than Chinese vendors peddling classics by Hitchcock or Teshigahara, inter alia. In a low-trust, post-Marxist society, that’s just unavoidable — and it does more good than harm, especially when quality is maintained.
What does irk me are the notions that China could be unduly influenced by western conventions after 1951, or that the exogenous conception of copyright is in any way an inhibition to its adoption throughout east Asia. Come on.

I only cited Kickstarter and Patreon as examples to be followed in their payment schemes for artists, not in their terms of service. I know that these two platforms are very restrictive, but nevertheless there have been many projects realized and artists compensated through them, thus demonstrating that, at least on the financial side, their models work. All that remains now is for a competitor to imitate their proven payment systems while offering far freer terms of service; the more restrictive Kickstarter and Patreon become regarding what they permit, the larger this demand for a freer alternative grows. Already there is SubscribeStar, which has much looser content guidelines and hosts individuals who are very much critical of progressivism, like YouTube user Carl Benjamin (AKA Sargon of Akkad) and Paul Joseph Watson.

SubscribeStar is promising, but its troubles proceed from the simple reality that financial institutions are managed by paranoid, censorial people who hate freedom when it inconveniences them. Until they’re brought to heel (which isn’t possible under the present government wholly beholden to them), these models will always be vulnerable.
The other problem is that due to unregulated immigration, societal decay, widespread anomie and dysgenics across nearly all of its principal demographics, the United States is increasingly becoming a low-trust society — a trend that bodes poorly for any sort of accountability or reliable microeconomic profit.

When you say that abolishing copyright will legitimize plagiarism, I reply that far more is required to realize this: we would also need to change prevailing social attitudes concerning plagiarism, i.e., convince people that it’s somehow ethically and morally acceptable to plagiarize; simply repealing some laws will not lead to this.

My concerns don’t consider societal consensus so much as the occasional rogue plagiarist. Without copyright or some footling outlawry of plagiarism, how do we penalize such a person? That’s less a challenge than an honest question. If there’s a way, I want to know it!
Withal, I define plagiarism very narrowly. Obviously, I’m not at all opposed to people reusing ideas in new ways; plagiarism has to be very blatant for me to concede it.

Also, I don’t know why you state that representing another’s idea as your own or representing public domain works as your own is not actual plagiarism.

That’s because I didn’t. I simply stated that such plagiarism is nugatory. I don’t approve of it, but it’s not terribly significant.

If a friend verbally communicates to me the plot of a novel he has conceived but not yet written, and I thereupon write and publish my own novel based upon the plot, claiming that the whole thing is my original work, have I not committed plagiarism of his idea?

Yeah, and he should’ve kept his mouth shut! I can’t hope to protect unfinished, much less uninitiated works by ingenuous people! (Note that copyright is only enforceable for finished works.)

And if I compose my own original poetry and decide to compile it into a book, but also include in it a few of Shakespeare’s sonnets (which are in the public domain) and then claim that the whole collection was written by myself, have I not also committed plagiarism of his sonnets? (I gave my definition of plagiarism in the previous reply, and you didn’t object to it, which is why I wonder how you could deny that these two scenarios are actual plagiarism.)

Neither do I deny it, nor did I so much as suggest otherwise in my prior post.
To ingeminate: fair use does not cover actual plagiarism.

However, after some consideration, I agree with you that copyright law’s effectiveness in guaranteeing proper attribution is important, and that, under current conditions, this particular function of it should not be abolished until a superior private mechanism is developed to replace it. I acknowledge that many people currently rely on this law to secure recognition for their creative efforts, and it would be harsh to suddenly deprive them of something to which they’ve become so accustomed. I also admit that it would have been extraordinarily difficult for Carpenter and Castle to obtain an indemnity from Besson in the absence of copyright law-but I would only add that, even without that law, Besson would still have suffered damage to his respectability once his plagiarism was exposed.

I’ll grant that much of this is immaterial to this discussion, but French media outlets and his distributors support Besson after six allegations of rape — not in misandrist Sweden or the hysterical United States, but France, where such claims are highly suspect and only investigated when credible. (One example why is mentioned in the opening of my latest review.)
Once again, I’m genuinely interested in alternatives to copyright, but they must afford a means to punish shameless offenders, including those who enjoy biased institutional support.

The whole purpose of the original essay was to argue that permissive licenses (including the BSD licenses) are unconditionally freer than the GPL and other copyleft licenses, and also that the former provide us in the end with more freedom. Alas, not only do we disagree about copyright, but the essay failed even to convince you of this point, which was my motivation for writing the thing in the first place!

As much as I love BSD, I do prefer some of the GPL’s stipulations (you can guess which) absent in the BSD license.
At the outset, I probably should’ve clarified that my support for copyright is largely pragmatic, as a way to legally guarantee proper attribution and reasonably profitable conditions. I don’t expect piracy (digitally, this is not truly theft, but simply unauthorized access and/or duplication) to end, and I know that it often redounds to positive cultural effect. What I do want is some means of redress when actual plagiarism occurs, and insurance of attribution. Creative Commons licenses enable these to a degree, but they haven’t (yet?) the status of legal recognition afforded to copyright registration.

Regarding the subject of corporations, I admit that I can now at least understand the deep and often justified hostility that many non-progressives hold towards them. In particular, whenever they support legislation that reduces freedom and infringes upon individual rights for their own benefit, I turn on them as viciously as you or any other reasonable person does; and even when they don’t resort to the law, but, e.g., restrain free speech on their online platforms, I still lose much respect for them. The only thing I would caution you against is mistakenly perceiving as evil a genuinely harmless/neutral corporation (and I think you will agree that such corporations do exist), and especially against mistakenly perceiving as evil the truly rare (but still existent) corporation that actually upholds individual rights in both word and deed, like Defense Distributed and NearlyFreeSpeech.net.

The biggest problems in the public sector that we must oppose us aren’t corporations, per se, but most oligopolists. When I view one of BLM’s riots, I don’t think, “God, I hate all blacks;” neither do I think, “corporations are inherently evil” when I read about Bezos’s latest fraud or connivance. This doesn’t even apply to all oligarchs, a few of whom are benevolent. However, whether for lucre or power or ethnic advantage, one cannot deny that, in conspiracy with one another and many governments, many multinational corporations have contributed mightily to the soft tyranny that afflicts this country. At present, big pharma’s push to vaccinate everyone by dint of governmental ordinance is the most glaring example.

I only focused so heavily on the financial/promotional side of it in my previous reply because I was responding in turn to the emphasis you placed on that subject in your previous response (see the third block quotation in my previous reply), but I also recognize the importance of the attribution issue. Aside from this, however, I am glad to hear that you would be willing to discard copyright law if a private alternative were to arise that could fulfill its functions of compensating artists and guaranteeing them recognition. While I still hold the view that copyright ought to be abolished, after some consideration of your points I concede that it would be too callous to repeal all the laws outright when no true substitute for them yet exists: there are simply too many authors and artists-including very many decent, honest individuals-who have become dependent upon the current legal system of copyright for their income and artistic recognition. Had I been alive in 1790 I would have vigorously urged the Founding Fathers not to pass that year’s Copyright Act and instead seek a private means to promote creativity and ensure proper attribution, and my task would have been far easier because I would have needed only to argue from libertarian principles-viz., proposition (1)-and not have had to worry about endangering anyone’s livelihood or artistic reputation. Unfortunately, now that copyright law has existed in this country for 230 years, it has become so entrenched, and so many careers and industries depend on it, that I confess that we cannot simply uproot the whole system without major negative consequences.

What’s more, whatever supplants copyright has not only to be designed in order to overlook casual or sensible filesharing, but also to forestall any probability that private entities can popularize restrictive or abusive licensing.

I still wish to see the eventual abolition of copyright, because I still fully believe that it is not a legitimate function of government, but now I acknowledge that this should only be done once a suitable private substitute exists by which authors/artists can both make a living and receive their deserved attribution. I also fully agree with you that serious reform is needed to reverse the many abuses of copyright law by corporations; we can begin to implement those reforms immediately, and meanwhile we can also work diligently towards developing the private substitute(s) that ultimately will replace it. As more private alternatives inevitably arise in the future, I imagine that we may gradually reduce the scope of copyright, and hence gently wean people off the system, before finally getting rid of the thing altogether.

I’ve a certain confidence that this will happen, perhaps inadvertently, as some new online technology or application thereof comes to prominence.

Again I acknowledge the great value of creative works, but value itself does not elevate something to the status of a natural right. We should employ every private means and method to promote their production and secure attribution for their authors, and I’ve already conceded that we shouldn’t abolish copyright until an equivalent or superior replacement exists, but I have also shown earlier, both in this reply and the previous one, that copyright-even in the U.S.-originated merely as a tool to encourage creativity and innovation, and was not perceived as a natural right.

Before I forget to ask, do you believe that ownership of intellectual property should be legally acknowledged as a natural right? If so, our conundrum is: how do we legally address the validity of intellectual property without either copyright or (unenforceable) proscription of plagiarism? Again, I’m not certain that a solution for this problem yet exists.

Lastly, even if my views, as you say, aren’t concordant with the consensus of any broad majority, still you must admit that those specific communities I mentioned in the previous reply are, on the whole, significantly less favorable towards and concerned about copyright than the general population.

I agree, and can’t entirely begrudge them their opinion. Whether informed or ignorant on the subject, you kids have come of age in a time when a handful of corrupt corporations expect that people should be imprisoned or pauperized for doing what comes naturally on the Internet. It was always preposterous.

Many computer programmers release their source code under permissive or copyleft licenses rather than proprietizing it, few people on YouTube during its early (pre-2010) years cared about copyright (except to insult it when their videos got taken down because of DMCA abuse), and images and other media-including original content-are freely and often anonymously shared on imageboards. When the youtube-dl repository on GitHub was temporarily disabled at the behest of the RIAA and much backlash ensued, I slept well at night knowing that, after all these years, the Internet still hates the RIAA.

LOL: I’m using youtube-dl to download [content] as I type this! Really, the problem here is that the silents and boomers who run the RIAA, MPAA, and the publishers and distributors who they represent simply do not understand personal computing. These companies should’ve been selling music online as late as the mid-’90s, and movies by the mid-aughts, with the unspoken concession that piracy will cut into profits — but also help to publicize their products. Instead, they squandered that time in fits of litigiomaniacal lunacy, filing frivolous punitory suits that occasionally ruin lives, and harrassing smaller distributors who know how the world works. Of course, the DMCA is the fruit of this inanity.

Finally, if you want to know what kind of people the RIAA are, check out the skulduggery that its CEO, Mitch Glazier, committed when he was a Congressional staff attorney. A man who heads an organization purportedly dedicated “to protect intellectual property rights and the First Amendment rights of artists” essayed to defraud recording artists for the benefit of their labels. These people are swine.

Author: rbuchanan

I'm an author, lexicographer, cacophonist, ailurophile, bibliophile, cinephile, logophile, inveterate aggregator, dedicated middlebrow, incontestable babe, borderline narcissist, weirdly semi-Mediterranean Native American, and alliterative anastrophe addict. My personality type is superlative INTJ.

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