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Let’s Make Copyright Opt-OUT

From the Mises blog; archived comments below.

If you oppose IP and don’t want a patent–just don’t apply. Unfortunately, someone else might independently invent the same thing, patent it, and shut you down, since your having invented it first, or independently invented it, is no defense. So, you might also want to lower your knickers and reveal your idea publicly, to lower the chance someone else can patent it (this is called defensive patent publishing).1

But if you don’t want copyright, you’re out of luck. Under the current law, copyright is received automatically. Contrary to popular wisdom, you don’t “copyright” something. It’s not a verb. You don’t need to put a copyright notice on your work. You don’t need to register it. It’s automatic. And there’s nothing you can do about it. (See “Copyright Is Very Sticky!“) This makes it often impossible to know who the owner of a given work is or who to approach to ask permission; it contributes to the “orphan works” problem as well–where older works still apparently under copyright fall into obscurity because the copyright owner is unknown or cannot be found for permission to republish.

Thus, some of us would prefer a return to the older law.2  Previously US law required a copyright notice and even registration to obtain copyright. But the US acceded to the Berne Convention in 1989, which forbids such “formalities,” making copyright protection automatic. The US is therefore unable to revise copyright law to make it “opt-in” instead of opt-out, because this would violate international obligations.

But we do not even have an opt-out system, since, as noted, copyright is automatic, and there is no way to get rid of it. Snide commentators sometimes say, “if you are against IP why do you copyright your works?” or “why don’t you just waive your rights?” Well we don’t copyright our works–your system does. And your system does not allow us to waive our rights. There is no way to make a copyright-protected work public domain. The closest thing to it is CC0, but this cannot “guarantee a complete relinquishment of all copyright and database rights in every jurisdiction”.

So why not reform copyright law to at least legalize creative-commons type licenses, including CC0–let us opt out if we want to!

Archived comments:

{ 33 comments… read them below or add one }

Anonymous April 12, 2011 at 2:09 am

Actually, there is no such thing as an “international obligation.” If Congress had the political will, it could repeal the Berne Convention and restore the previous copyright laws. The United States Congress is unable to change the copyright laws so long as they remain part of the Berne Convention, which we can leave at any time.

Although I agree with your opposition to all IP, I would be happy if Congress restored the original Copyright Act, which limited copyright to 2 14-year terms (with a renewal required to get the 2nd term) and limited copyright to specific types of works produced by Americans (works produced by foreigners were automatically public domain in the United States).


nate-m April 12, 2011 at 3:07 am

The treaty itself is what causes the ‘international obligation’.

Having the ability to get rid of the treaty and thus remove the international obligation is hardly the same as having no international obligations at all.


Stephan Kinsella April 12, 2011 at 12:37 pm

exactly. Anon was spouting off. In any case there is no more impetus behind abandoning Berne any more than there is for revising copyright law to re-impose registration. They are just politically unrealistic. They will not permit it to be an opt-in system or fight to abandon the treaty that forbids it.

But it should be politically uncontroversial to make clear the system IS opt out–to provide a clear and reliable way for people to reject the copyright the state gives them. If the state offers me a job, I can say no (well, unless it’s fighting for LBJ or Lincoln or FDR). IF the state gives me a car I can give it away or abandon it or reject it. Why do I have to accept the right-to-sue they give me in copyright law? let me get rid of it if I want to. Who does that hurt? What possible argument could there be to not let me voluntarily choose not to have this copyright the state automatically conferred on me?


John S April 12, 2011 at 4:16 pm

It is not necessary to return to the original Copyright Act (by repealing Berne) to restore balance. We could instead offer limited automatic copyright under Berne with the option to extend copyright through the registration process for a longer period (for example, re-registration every 10 years until some maximum time).

This would ensure that creative works with limited commercial interest enter the public domain relatively quickly, while ensuring that works which have commercial value are maintained. Works which are not re-registered would enter the public domain automatically when the term expires.

This approach also produces the added benefit that expired works are provably and irrevocably in the public domain. This will go far to prevent abuses such as NAB asserting “rebroadcast copyright” over public domain works.


Stephan Kinsella April 12, 2011 at 4:29 pm

John, how do you know this would be compatible w/ Berne? Are you a copyright lawyer, or have you studied this? Can you cite me to the provision of Berne that permits this?


Andras April 12, 2011 at 2:42 am

Don’t be ridiculous. You want even more contradictions in the statute? Your suggestion would be like arbitrary keeping right or left in traffic law. Or in your sacred cow, homesteading, absolutely no rules who claims what. After all, why should I accept your totally arbitrary rules of homesteading. Just because you claim to be the authentic Libertarian?


nate-m April 12, 2011 at 3:05 am

The reality of things like copyright is that there is no fundamental concepts or logic behind it. It’s something born out of censorship and it continues to this day because of a theory that it provides economic benefit to the nation.

It’s nothing but a mess of contradictions and violations of liberty. Adding some more contradictions in a effort to limit the damage that is happening to society is hardly a bad thing to suggest. Obviously scrapping the whole thing would be superior (and thus getting rid of the contradictions and other BS), but that’s not something that is going to happen anytime soon due to the nature of politics and the level of delusion of what really is the effect and purposes of ‘copyright’ that most people seem to operate under.


Stephan Kinsella April 12, 2011 at 12:31 pm

hunh? are you saying the state should give me a copyright and not let me renounce it? say what?


Andras April 12, 2011 at 7:16 pm

Why would you care? If you don’t ask the state to enforce it they won’t. They are not allowed to!


kingcherub April 12, 2011 at 8:25 pm

That may be fine for people who are aware of Stephan’s views on IP. But, if someone isn’t sure who holds the copyright on a given work or their views on IP, how are they going to know if they can use that piece of work or not?


Andras April 12, 2011 at 10:32 pm

They shouldn’t. However, that wasn’t what Stephan addressed above. The system remains intact and he has practically opted out.


Stephan Kinsella April 13, 2011 at 12:47 am

You don’t know what you are talking about. If I sign a license with you, you publish my stuff b/c you can rely on it. You know I cannot change my mind.

That is the purpose of the CC licenses. You want to let people realize that they have the right to use it–that they will not be sued if they do. They cannot be sure, unless they are given an effective license, or the copyright is somehow removed.

It’s obscene the statist IP system will not let people opt out of it.

Andras April 13, 2011 at 12:34 pm

Here you go again. Read my post instead of fighting your demons!
You should not care. No-one forces you to sign anything. Let them do whatever they want with your property. This is your property after all, you can do whatever you want with it.

Peter Surda April 22, 2011 at 4:14 am


homesteading is based on the physical attributes of the world, such as volume or location. IP is based on the subjective human interpretations of the world, such as meaning and value. Of course, we can never avoid arbitrariness fully, just like we need to arbitrarily define the kilogram, meter, Kelvin, second or radian. But that is hardly an argument that one would make to equate astronomy (based on the physical attributes of phenomena) and astrology (based on meaning of those attributes).

Furthermore, the approaches contradict each other.


Dan Q April 12, 2011 at 3:13 am

If there’s one key thing I disagree with Kinsella on it’s CC0. There is nothing wrong with it, there is the license fallback system to protect it, and as for the other Creative Commons licenses, like the GPL you are subject to the will of the organization’s management.

GPL proved this when GPLv3 (at the decision of the Free Software Foundation’s management) came out in 2006 and was forced on people who didn’t think of taking the upgrade clause out of the 1991 GPLv2 template.

Creative Commons does not force an upgrade so they say, but international treaty might force Creative Commons to act, and people will be forced to accept Creative Commons’ then-lawyers and adopt a new license, which perhaps could be not-so-permissive or require an update. What disturbs me the most is recent versions of ShareAlike, which allows Creative Commons Inc. to relicense your works the organization deems “in the spirit of the original licenses” (no such licenses have been chosen, but note the FSF screw-job above)

What exactly do you mean by “legalize” Creative Commons? How are the licenses “illegal”? I would be careful not to give ASCAP any credibility to their bogus claims.


nate-m April 12, 2011 at 3:35 am

and as for the other Creative Commons licenses, like the GPL you are subject to the will of the organization’s management.

The GPL is not a Creative Commons license. Creative Commons licenses are a series of licensing suggestions that a author can choose to adopt different features of for different purposes.


Like there is Creative Common licenses that allow for derivative non-commercial works. There is Creative Common licenses that allow for commercial derivatives, but only if they give credit to the original author. Stuff like that. The ‘CC0′ is a specific version of Creative Commons were the author surrenders as much copyright restrictions as possible.

GPL is not part of that family of licenses.

GPL proved this when GPLv3 (at the decision of the Free Software Foundation’s management) came out in 2006 and was forced on people.

It did nothing of the sort. Programmers were absolutely free to choose whether or not to give FSF discretion on licensing upgrades to the GPL. Nothing was hidden and nothing was forced on anybody. Plenty of people choosing to use ‘GPLv2 only’ proves this.

Your really being ignorant here or are being intentionally misleading.

What exactly do you mean by “legalize” Creative Commons? How are the licenses “illegal”? I would be careful not to give ASCAP any credibility to their bogus claims.

Unless your able to obtain clarification on the license of something that is considered ‘original work’ by USA copyright law then you are forced, due to liability concerns, to assume that everything defaults back to full copyright restrictions.

Gaining clarification can be very expensive and given that ‘derivative works’ tends to be viral this can put people creating complex works, that will invariably incorporate other ‘original works’ from disparate sources, in very difficult position. If they cannot afford to spend the time and money necessary to get clarification on copyrights, or they are unable to determine this even if they did spend the money and time, then they cannot take advantage much of the creative history of works that people have created in the past 75-100 years or so… even if nobody is ever going to seek licensing terms for it.

If your going to have copyright it is much saner to have things ‘default to liberty’ rather then ‘default to liability’.


El Tonno April 12, 2011 at 5:55 am

“Programmers were absolutely free to choose whether or not to give FSF discretion on licensing upgrades to the GPL. Nothing was hidden and nothing was forced on anybody. Plenty of people choosing to use ‘GPLv2 only’ proves this.”

Absolutely correct.


Stephan Kinsella April 12, 2011 at 12:33 pm

are you giving a legal opinion about CC0′s legal validity? Even CC says they cannot ““guarantee a complete relinquishment of all copyright and database rights in every jurisdiction”.”

I don’t think you’re right about being subject to the will of CC’s managment–you adopt a given version, say 3.0. if CC adopts 4.0 later, that’s for other works.

CC is not ideal. I wish it did not have to exist. It exists only b/c copyright exists. If copyright were to go away then so would GNU and CC.


J. Murray April 12, 2011 at 12:52 pm

I agree, it’s not ideal, but CC does have one level that does emulate a libertarian system, and it’s this one.

Based on my understanding of it, that one means that anyone can freely use my work, so long as I’m attributed as an originator, and it forces everyone from that point into infinity to provide the same permissions. It allows for anyone to use the work and profit off of it, but it disallows anyone who uses the work, and all future uses that are remotely derived from it, from ever entertaining a copyright action against someone who uses it in turn.

Of course, you’ve more knowledge than I in this case and may see something that I’ve missed, but it seems to me that if enough authors use this particular CC level then they can effectively destroy the entire copyright system as, eventually, all ideas will be effectively forced to be labeled with that same standard.


Dan Q April 12, 2011 at 2:40 pm

(CC0) Even if the rights waiver and subsequent fallback license and subsequent inability to sue doesn’t work, just the fact that the author is waiving as many rights as possible is sufficient enough to be pro-libertarian and thus should be encouraged wherever possible.

(Other CC licenses) I still don’t understand what you mean by Creative Commons licenses being illegal to use. Please clarify for me.


Stephan Kinsella April 12, 2011 at 2:51 pm

this is why you should not weigh in with legal certainty on matters you don’t get.

The are not illegal. They just may not work. Most licenses are contracts btween A and B, where A gives B a license, and B gives A consideration (payment). In a CC license there is maybe no consideration, esp. for CC0. That is one reason, I think. In other countries they may require more proof, an actual bargain or negotiation, written evidence, or they may say the author has inalienable rights. who knows.

the point is if you do it, but it’s not effecive, it doesn’t bind you, and you can change your mind, and if you do, that means people can’t rely on it, so it’s like having no license at all.

this is a legal matter; I encourage you not to pronounce on these matters in loose cannon faschion if you don’t understand this. Some people have trouble with contract and license law.


Dan Q April 12, 2011 at 3:41 pm

I wasn’t trying to be a lawyer, I was talking about being a libertarian and giving my personal opinion on what was most compatible with libertarianism.


Dan Q April 12, 2011 at 2:45 pm

(CC management) Meaning international treaty might break version 3.0, and so CC reacts with Version 4.0, and CC decides that everything after CC must accept an upgrade. Just the “compatible licenses” clause we have in ShareAlike now is enough to be suspicious.


Dan Q April 12, 2011 at 3:44 pm

mistake: everything after CC->everything after v4.0


BioTube April 13, 2011 at 8:31 pm

In regards to the GPL, the relevant clause is “or (at your option) any later version”; this just means that any GPL-licensed software is effectively multilicensed under the version it was released under and every one after that. There are plenty of projects that strike that clause(such as the bulk of the Linux kernel codebase) and it’s even permissible to strike it after you initially included it.


Peter Surda April 12, 2011 at 6:21 am

I have a better idea. Let’s make the whole IP opt-out. If you support IP, you can use it to “protect” yourself but need to respect other people’s IP too. If you don’t support it, you cannot use it to “protect” yourself but also do not need to respect other people’s IP. Quid pro quo.


Stephan Kinsella April 12, 2011 at 12:33 pm

yes. but they would not go for it any more than social security privatization/opt out.


Briggs April 12, 2011 at 10:08 am

When posting images to sites like Picasa, users can choose among Public Domain and several Creative Commons options. What is the significant difference between PD and CC0?


Stephan Kinsella April 12, 2011 at 12:31 pm

Public domain means its copyright has expired. You can not make the term expire. All you can do is waive your rights by CC0, but there is concern that that is not effective–the contract would not be binding. PD is just a description as to the status of a given work. CC0 is something you attempt to do to it–a license granted while the copyright is in force. for PD there is no copyright left.


Stephan Kinsella April 12, 2011 at 12:34 pm

If Picasal lets you choose PD it’s a mistake, unless they are simply askingy ou to identify it as some old work already in the PD. You can’t “chooose’ PD.


Stranger April 12, 2011 at 8:01 pm

All we have for evidence of that is your own fantastical opinion. Has such a case been brought to a judge?


Stephan Kinsella April 13, 2011 at 12:48 am

it’s just a definition. Public domain *means* works whose copyright term is expired. You cannot make your copyright term expire. Even if CC0 were to work it would not be the same as PD though for some purposes the difference would be trivial.


Anti-IP Libertarian April 13, 2011 at 10:16 pm

You are WRONG: Read about PD and then state if someone can willingly put some new work into PD WORLDWIDE.

Read about copyright laws in the US. And read about copyright laws in EUROPE (and worldwide). For example in Germany you cannot absolutely waive your rights into some work if you are not dead for more than a long period of time. A potential copyright issue for the user exists this way.

So a potential user of some PD work would encounter legal issues because PD does not apply (the same way) everywhere.

  1. See Google’s Defensive Patent Acquisition; Prior User Rights and Patent Reform; Jefferson on Anonymous Defensive Patent Publishing; Defensive Patent Publishing. []
  2. See my Reducing the Cost of IP Law, proposing copyright law be reformed to “Require active registration and periodic re-registration (for a modest fee) and copyright notice to maintain copyright”. []
{ 6 comments… add one }

To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.