Van Helsing and the Public Domain
bclark at radzone.org
Wed May 12 08:42:14 EDT 2004
Greg, I actually really enjoy your arguments on this list and think you're
one of the great advocates for "Gift Economy" on this list (and we're
getting dangerously off-topic with this thread, I suspect.) But I have some
continuing issues with the argument you're presenting ... and since "we are
what we speak" I think that argument is important.
>Intellectual ideas are naturally PUBLIC PROPERTY.
>It takes a legal structure, such as Section 8
>of the US Constitution, to take what naturally
>occurs as public property and treat it as a
Greg, that's such a strawman argument. "Since it is really protected in the
Constitution, it's not a 'natural right'" seems short-sighted. After all,
one might make the argument that freedom of religion or a woman's right to
vote aren't "natural rights" either -- since it takes a legal structure like
the US Constitution to give them force.
But modern copyright law (however much it might become twisted by corporate
use) still contains, inside of it, the idea that a author/creator does have
a natural right in that creation. That's why the Berne Convention doesn't
require that something be filed for that copyright to apply -- it's based on
the idea of protecting individuals and their creations from being
appropriated by corporations.
>If open content is going to make any real progress,
>it must first speak clearly to undo all the
>damage done by IP holder's "Ministry of Dis-Information".
Among "independent artists" (those of us who are creating and making our own
decisions about how that work makes it to the public), I frequently find
arguments that people who insist that copyrights aren't a "natural right"
extremely alienating -- it lumps independent artists into the same pile with
the Disneys (we're all "IP holders"), which couldn't be further from the
case. It sends the message, "If you aren't here to burn the house down,
you're not really a part of the copyfight movement."
By your own writings on the "gift economy" (which I've read) -- don't you
think you've destroyed the gift economy if artists are no longer
"contributing to it"? Is it still a gift then?
>intellectual entities are NOT naturally private property.
That might be your personal opinion, but that's not the underlying
principles of the Berne Convention:
"The countries of the Union, being equally animated by the desire to
protect, in as effective and uniform a manner as possible, the rights of
authors in their literary and artistic works..."
You might argue that the above just shows that "legal structure" necessary
to create the "private monopoly," but other people argue the "legal
structure" is created to protect the "natural right".
>As long as Intellectual Property is spoken of as a natural right,
>and as long as we keep using language that reinforces that,
>then open content will always occur as a bunch of
>wacked-out, fringe-element, bunch of loons.
Greg, don't get me wrong for a moment -- I'm a "copyfighter". If you asked
me, copyrights should be one 14 year term non-renewable and then straight
into the public domain. I've released "freeware" as a programmer, I've
released "share alike" in text, I've released "open source" in film. I've
also used the "big C" on media as well. I've read your "gift economy"
document and have been an advocate for gift economy thinking for years.
But your arguments -- that copyright isn't a natural right vested as the
moment of creation to the author -- is what makes "copylefters" look like "a
bunch of wacked-out, fringe-element," because your argument assumes that "IP
holders" (ie, the creators of media and invention) are the enemy of the gift
And they're not: they are the very people I'm trying to recruit into the
gift economy for their own good. Would you rather a filmmaker bank their
creative process on the idea that they can sell their work to Hollywood, or
explain to them the more interesting things they can do (for them, for their
audience, for their career, for the message of their work) with their
"natural right" to the work they bootstrap up?
Some of us in the film community might be able to convince some of them that
contributing it to the gift economy is a good thing: I doubt I would be as
successful convincing them that they don't really own that film anyway, they
just have a legal private monopoly for a limited time.
Sorry for taking the discussion further off of the CC license trail: but I
agree with Greg that "we are what we speak" and I think one of the dangers
of what we speak is making the assumption that "intellectual property right
owner" or "copyright holder" is synonymous with "corporate control". The
MAJORITY of IP holders are actually individuals who should be recruited, not
the blog: http://www.radzone.org/bclark/
the news: http://www.indiewire.com
the film: http://www.nothingsostrange.com
the "evil corp": http://www.gmdstudios.com
Date: Mon, 10 May 2004 12:04:36 -0400 (EDT)
From: "Greg London" <email at greglondon.com>
Subject: Re: Van Helsing and the Public Domain
To: "Discussion on the Creative Commons license drafts"
<cc-licenses at lists.ibiblio.org>
Message-ID: <16722.214.171.124.2.1084205076.squirrel at webmail4.pair.com>
At issue is the phrase
"contribute their work to the PD"
(which is verbatim from the original post, btw)
This phrase implies
(1) that copyright is a natural right,
that works naturally are the property of
the Authors, and
(2) that it takes a "contribution"
to place the work in the public domain.
That is SO far from reality.
Intellectual ideas are naturally PUBLIC PROPERTY.
It takes a legal structure, such as Section 8
of the US Constitution, to take what naturally
occurs as public property and treat it as a
When someone on this list speaks of the expiration
of this private monopoly as a "contribution" to the
Public Domain, it reflects just how effective the
Jack Valenti's of the world have been in changing
the world's perception of intellectual property
as being an author's natural right.
Several decades of Intellectual Property propaganda
have gone so far as to warp the speaking of open
intellectual entities are NOT naturally private property.
intellectual property is a legally created monopoly,
allowed by the Constitution only to the extent that
it serves the public good. At the end of copyright term,
the author does not contribute the work to the public domain.
Instead, the legally created monopoly expires because it
no longer serves the public good.
If open content is going to make any real progress,
it must first speak clearly to undo all the
damage done by IP holder's "Ministry of Dis-Information".
As long as Intellectual Property is spoken of as a natural right,
and as long as we keep using language that reinforces that,
then open content will always occur as a bunch of
wacked-out, fringe-element, bunch of loons.
We are what we speak.
Per I. Mathisen said:
> On Mon, 10 May 2004, Greg London wrote:
>> J.B. Nicholson-Owens said:
>> > And yet Disney refuses to contribute their work to the PD from which
>> > continue to draw so much value.
>> It's that sort of naive pseudo-argument that gives
>> Free/Libre/Open/Public groups the image of being
>> some sort of fringe-element community-property
>> bunch of loons.
> Desperately looking for a reason to rant? You deliberately misquote the
> previous poster to make him your strawman which you then tear down with
> rather harsh language.
> What he actually said was...
>> And yet Disney (and probably every other MPAA and RIAA client, if Disney
>> weren't the corporation to be so vocal about supporting the latest
>> copyright term extension) refuses to contribute their work to the PD
>> from which they continue to draw so much value.
> ...which suggests that it is about the refusing to contribute to PD by
> passing copyright term extensions, not what you made it out to be by
> misquoting. I think you owe him an apology.
> - Per
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