On Fri, 22 Jun 2007, Crosbie Fitch wrote:
>> From: aphid
>> Once work reaches a certain age (one that has oft been
>> extended), it falls into the public doman.
>
> Hate to break it to you, but the 'public domain' as 'the place wherein which
> works belong to the public' is a mythical realm. A sort of 'Father
> Christmas' that was invented by IP maximalists to make the public believe
> that there was some kind of reward for having their liberty to share and
> build upon their own culture suspended for so many years, e.g. "If you
> behave yourself over the next century or so, you and your children can have
> this shiny art to play with without having to ask permission or pay for it -
> it will be all yours".
>
> Au contraire:
>
> 1) We have an author's natural, lifelong right to control the use of their
> work.
> 2) We have copyright that protects various aspects of that right and for a
> limited time - which may be transferred.
Crosbie,
I wonder if anyone else on this list agrees with you that authors have a
"lifelong" "natural right" to "control the use of their work". I am
interested to know what makes you feel this is a perpetual natural right.
Everyone, before you stop reading:
To summarize my point for those not interested in reading further, I
understand that the US legal tradition is about *rejecting* this "natural
right".
I want to table the discussion of this, though, because I think we can
focus this list on more useful things. I'm *sure* we're boring many
people on this list to tears. If some such bored person thinks we should
separate philosophy discussion onto a separate list and keep this list for
discussing activities and events instead, then make a suggestion to do
that; otherwise we'll keep discussing philosophy here.
I think that there are a lot of perspectives in how we can improve regimes
that regulate the flow of cultural material, and that by being willing to
work with people who are acting with different reasons in mind from our
own, we can achieve the most good.
-----BEGIN LONG BORING MESSAGE-----
Crosbie,
You wrote about a "natural right" of authors to "control the use of their
work."
>From what I can read, Thomas Jefferson said individuals may choose not to
divulge information they have not published.
But when US law restricts the use of creative work, our Constitution
grants these limited monopolies "for limited times" - and the
justification for that is found in Jefferson's writing.
To make the point that the founding fathers of the United States (where
most of this list is based) don't agree with your perspective, I'll give
you a historical quote from Thomas Jefferson [1]:
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.
Earlier in the same letter, he writes:
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.
The letter continues as an effort to reject this "natural and exclusive
right" notion.
The US tradition is about incentives to create, and it is not based on a
"natural right" but is instead simply a strategy to encourage creating
valuable things for society. This is designed as a "quid pro quo" trade.
Jefferson's feelings about this were not limited to inventions, now the
subject of patents, but literature and the arts also. As discussed at
[2], he argued with Madison over if the state should restrict the flow of
information at all, and finally conceded that a sentence like this in the
Constitution would be acceptable. Notice the phrase "for no other
purpose":
Monopolies may be allowed to persons for their own productions in
literature, and their own inventions in the arts, for a term not
exceeding
___ years, but for no longer term, and for no other purpose.
The American tradition has nothing to do with these "natural rights" to
which you refer.
Finally, I want to make the important point that this isn't Jefferson
alone taking this perspective. Our patent law system, which is based on
the same clause in the Constitution (although I understand that its
workings are very different!) only protects "useful" inventions as
discussed further at [3] with American case law citations, e.g.: "The
basic quid pro quo contemplated by the Constitution and the Congress for
granting a patent monopoly is the benefit derived by the public from an
invention with substantial utility." [4]
> It's also a myth that copyright is used as a quid pro quo, e.g. "We'll give
> you a monopoly for X years, if we get your work for free thereafter".
In the United States, that "myth" is our legal and historical tradition.
>From what I read (*), there may have been a different tradition in England
and the rest of the world, which may be where you're getting your
perspective. But don't be a cultural imperialist and tell me Jefferson's
perspective "is a myth".
Because we disagree on this fundamental point of perspective - you believe
in some "natural right" of authors to prevent the reuse of their ideas,
whereas the American tradition is based on rejecting that notion - can we
please stop fighting over it and talk about something more substantive?
-- Asheesh.
1. http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html
2. http://www.kuro5hin.org/story/2001/7/23/23214/3438
3. http://www.ladas.com/Patents/Biotechnology/USPharmPatentLaw/USPhar04.html
4. http://www.law.uconn.edu/homes/swilf/ip/cases/brenner.htm
P.S. For the record, I also take issue with your complaint that the
"public domain" was created by "IP maximalists".
-----END LONG BORING MESSAGE-----
--
I'm using my X-RAY VISION to obtain a rare glimpse of the INNER
WORKINGS of this POTATO!!
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