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Article:
  Tim O'Reilly Responds to "Freedom or Power?"
Subject:   Copyrights are not really rights
Date:   2001-08-20 17:08:21
From:   guyberliner
Response to: Copyrights are not really rights

You're precisely right, and this explains
precisely why Tim O'Reilly abuses language
to refer to a "freedom of an author to
decide his licensing terms." In fact, such
a freedom is impossible. Ever heard of "void
where prohibited by law"? Licenses are contracts
meant to enforce certain exclusive rights as
secured by copyright & patent laws. Such rights
exist ONLY where secured by these laws.


For what purpose do such laws exist? The US
Constitution makes it very clear, "for the
advancement of the useful arts and sciences,"
"Congress shall have the power to secure for
authors exlusive rights to their works FOR A
LIMITED TIME." There are many differences
between ordinary property rights and the
misnamed "intellectual property rights."


First and foremost, the latter do not preexist.
They exist only at the pleasure of the legislature
and elected officials. Clearly, they exist only
to benefit the public, not the small minority
of people who actually directly earn royalties
as a result of them. Why on earth would the
majority of people direct their representatives
to pass laws guaranteeing big profits to a small minority at THEIR expense, simply because of some fictive "right" that a small, self-interested minority might want to demand?


The idea is that, by enjoying these monopoly
rights, talented authors will be encouraged to
devote more time to their work, and to make it
widely available to the public. This serves
"the advancement of the useful arts and sciences,"
and therefore the interests of the general public
(in theory, at any rate, and only so long as
corrupt influence peddling and monstrosities like
the DMCA don't overtake us, as they already have.)



Unlike ordinary property rights, no one anticipates that any more than a small minority of people could ever in practice exercise such "intellectual" rights. Many people do commendable intellectual work in the course of carrying out many worthy trades -- carpenters, plumbers, etc. But they do not enjoy the privilege of "intellectual property rights."
This is why the Framers of our Constitution gave Congress the power to recognize such rights. But they did not mandate it. And they clearly described the purpose such "rights." And that purpose has nothing to do with those who exercise them themselves.

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  • Copyrights are not really rights
    2001-08-20 17:41:25  guyberliner [View]

    Clarification: The word "right" has at least two meanings that are quite distinct: one is narrow and limited, prescribed, for example, by a contract, or set forth in a law applying for a limited time to certain named parties. An entirely different kind of right is a "natural right," such as the rights set forth in the US Bill of Rights, or the UN's Universal Declaration.

    "Copyrights" are obviously of the former sort. Unfortunately, the ideological hacks who invented the term "intellectual property rights" have done us all the inestimable harm of muddying the waters by confounding a natural right, the right to be safe in one's personal property and effects, with limited, contingent ones: exclusive monopoly rights, AKA "intellectual."