Van Helsing and the Public Domain

Brian Clark bclark at
Wed May 12 12:37:33 EDT 2004

>that could be interpreted as an implied "slippery slope"

Granted, I withdraw my slippery slope response to your strawman *wink*

>The supreme court supported the idea that
>copyright is not a natural right in
>1834, Wheaton v. Peters,

Greg, you're misinterpreting an 1834 court decision (which is waaaaaaay
pre-Berne convention)! Wheaton v. Peters established that copyright isn't a
"perpetual natural right". I totally agree that it isn't a perpetual right.

>and I don't believe I ever used such a emotionally
>charged word as "enemy" when talking about
>Market Economies, or "All Rights Reserved".
>If I did, let me know so I can fix it.

You didn't in your document, but you did in this thread:

"Several decades of Intellectual Property propaganda"
"undo all the damage done by IP holder's "Ministry of Dis-Information"

>I never said authors don't own their works.
>I simply said that it's not a natural right,
>its a legally created concept, allowed by
>the Constitution only to the extent that the
>Public Good benefit by the progress it makes
>in Science and useful Arts.

That's a narrow US-centric view. The more appropriate document to be looking
at is the Berne Convention which is a more international view of IP (and
that the US signed.) Not that I disagree with the Constitutional framing.
And I didn't say that you said that authors don't own their works -- you're
just arguing that they only own their works because of Constitutional
clauses (where as I would argue that the Constitutional clauses encourages
them to dissiminate their work rather than "keeping their light under a

>However, the misconcieved notion that IP is a
>natural right, in my opinion, is what's feeding
>the extensions of terms and rights to the point
>where a perpetual monopoly of totalitarian rights
>has been granted to Authors and Inventors.

Well, we can debate that. Because I certainly don't agree with the extention
of terms, the creation of whole new classes of IP, the limitation of "Fair
Use" through legislatively-mandated technologies, etc. I'm just not also
sure that ownership of your own work can be conceived of as a legal concept
divorced from "natural right." I personally like the concept of natural
right ... it protects creators that are illiterate sheepherders in Tibet and
not a part of any legal structure from being ripped off by corporations.
Bathwater, meet baby.

>You can fight the DMCA, the CTEA, and software
>patents, but as long as poeple view IP as a
>natural right, it will be an uphill battle.
>And any "win" could easily be "lost" again
>by future legislation.

I really don't follow that at all, but maybe that's because we're defining
our terms. A natural right to what? I would say copyrights are a natural
right: a natural right to first use and a collection of moral rights to
control how that work is used during that initial time. That natural right
has very little to do with the DMCA and very little to do with CTEA: it
might be a shared cultural antecedant that they cite in defending it, but
the counter argument (at least in the US) is "fair use".

>to use an analogy, CTEA is a symptom of the
>disease called "natural rights of authors".

Where as I would argue that CTEA is a symptom of unbridled capitalism and
the mistaken road of treating a "corporation" as equivalent to a "person" in
some cases and not others.

>You can either fight the symptoms, or you can treat the disease.

As long as you're absolutely sure that disease is causing is symptoms.
Perhaps the disease is really treating corporations as "natural people"
rather than taking "natural rights" away from people who haven't the means
to influence CTEA or Broadcast Flags through lobbying efforts.


Brian Clark
the blog:
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