Below, my Mises post is reprinted, along with an update about an interesting proposal of an important EU agency. Archived comments below.
Copyright is very sticky!
JANUARY 14, 2009 by STEPHAN KINSELLA
I’ve pointed out to such people innumerable times, to little avail, that copyright is a noun, not a verb–that you don’t “copyright” something–you have a copyright in your original works of authorship as soon as you write them, automatically, courtesy of federal law. No copyright notice is required. No copyright registration is required. You have the right, whether you like it or not.
Well, then, why don’t you just “make it public domain,” some then, a bit unreflectively, retort. The problem is, there is no clear and good way to do this.If you use a Creative Commons license, you are actually employing the copyright the state grants you–you are putting conditions or limitations on what others may do with your works. Even if you use the least restrictive type, “Attribution,” you are requiring others to do something to avoid being liable for copyright infringement.
Now, some have tried to find ways to let you abandon your copyright, or “dedicate” it to “the public.” Creative Commons has a proposed “Public Domain Dedication“, but: (a) it doesn’t seem easy, at least for the typical user; and (b) there appear to be doubts as to whether it would work–and until it’s clear that it does, it’s worse than a CC license, since publishers would be afraid to rely on it. It is possible that a type of estoppel would apply, preventing the “dedicator” from complaining if someone else relied on his “dedication” to his detriment; but there is “a quirk of U.S. copyright law which grants the author of a work the right to cancel ‘the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright” thirty-five years later, unless the work was originally a work for hire.’” So sayethWikipedia; and it outlines other deficiencies of the “public domain dedication.”
Creative Commons seems to recognize the potential problems with their attempt to set up a “public domain dedication”– first, they say, “Please note that the Public Domain Dedication may not be valid outside of the United States.” Well, that’s no good. We do live in a global, um, world. Last time I checked, the Internet was available even outside America! Second, I had to google their site to even find it–it’s not even listed in theirLicenses page, or in their FAQ. They provide this method with disclaimers and no guarantees, and they bury it on their site. Hmm, tells you something.
So, what’s a libertarian to do? I tend to think the CC 3.0 Attribution license is the most libertarian–it only requires you to say who wrote it–but most people would do this anyway, so that’s not a huge imposition. The “non-commercial” ones prevent people from using it “for profit”–this is still a use of copyright to force people not to publish. And the “Attribution Share Alike” seeks to use one’s copyright threat to force others to use this license too.
(For example, suppose you have a deal with a publisher, and you want to use a CC share-alike licensed work in your book. But the publisher you are using refuses to grant a “share alike” license. So now, you can’t use the CC licensed work. I.e., if you publish your paper with a CC attribution license, the other guy can use it in his book. But if you do a share alike one, he can’t. He’s prevented by your copyright assertion threat.)
The d*mned government imposes this right on us and does not even provide an easy way to opt out of it or get rid of it. Ridiculous.
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Update: In my comments to Roderick Long’s post Steal This Journal!, I noted:
Roderick, If I’m not mistaken, “copyleft” is similar to the Creative Commons “share alike” license. Libertarian Papers, however, uses the Creative Commons Attribution 3.0 License. After thinking about this, it seems to me that the “Attribution” license is more libertarian than “Share-Alike” (or copyleft).
Now the new “CCO“, or “No Rights Reserved,” attempt to make one’s work “public domain” seems the most libertarian of all, but its efficacy looks doubtful to me, and it’s still embryonic as far as I can tell.
In response to Charles Johnson’s (Rad Geek) suggestion that Attribution-Share-Alike (a “viral” type of copyright license, a.k.a. “copyleft”) might be preferable or acceptable from a libertarian perspective, I replied:
Rad, I see the argument, but I think the best policy is just to free it up. It’s a bit too paternalistic, rude, untrusting, to force others to do it like you do, to assume they’ll “abuse” their power. And, it might stop the work from being re-published. We want our libertarian ideas spread far and wide. I want an editor of a book considering reprinting one of our pieces to see no obstacles. A “viral share-alike” provision could be. Let ideas be free.
Update: See Doubts Raised About Legal Soundness of GPL2
Update 2: In my subsequent post Let’s Make Copyright Opt-OUT, I argued “why not reform copyright law to at least legalize creative-commons type licenses, including CC0—let us opt out if we want to”. Now, as noted in Mike Masnick’s Techdirt post European Parliament Committee Calls For Creation Without Copyright To Become EU Policy, the the European Parliament’s International Trade Committee has come out in favor of permitting people to opt out of copyright in the creation of new works (Opinion of the International Trade Committee on a Digital Freedom Strategy in EU Foreign Policy). The report:
Calls on the Member States and the Commission to develop IPR policy in order to continue to allow those who wish to create their own content and share it without acquiring IPR to do so;
As Masnick comments:
Yes, you read that correctly: an official document from the important trade committee of the European Parliament is calling for the option to create without copyright being attached.
Unfortunately:
Of course, the proposal stands no chance of being implemented because EU countries are signatories to the Berne Convention, which requires copyright to be automatic as soon as a work is “fixed,” which means that creation without copyright is not permitted.
As I noted in Let’s Make Copyright Opt-OUT, the Berne Convention also forbids copyright “formalities,” making copyright protection automatic. This means that the US is therefore unable to revise copyright law to make it “opt-in” instead of opt-out, because this would violate international obligations.
January 14, 2009 at 8:10 pm-
Great post in every way. the copyright laws are intervention and it requires intervention to forestall the worst effects of intervention, and so on.
The CC attribution is now 3.0, and you will notice the license on the footer of every page of Mises.org. It is the closest thing to a free market rule that the state will permit.
January 14, 2009 at 8:16 pm-
It’s funny that the state fails to protect legitimate rights (not sufficient protection, no protection, rights ignored, rights criminalized) and gives us (legislative) rights that are contrary to libertarianism and hard to eliminate even voluntarily.
January 14, 2009 at 11:29 pm-
Further to Manuel Lora’s point, here in Australia they have made the “right” to vote compulsory.
January 14, 2009 at 11:55 pm-
You say that the Share-Alike option on a CC license is non-libertarian. Are other copyleft licenses, like the GPL, also non-libertarian?
The goal of using copyleft licenses, at least in theory, is to propagate open code/content, instead of having it get sucked into a proprietary blackhole. Some open source developers I’ve talked to have stated that anybody who puts their code in a non-copyleft license is just asking to have their code appropriated into a closed product. They think it’s crazy. The point of the copyleft license is to ensure that the open code stays open. Without this assurance of openness in perpetuity, many wouldn’t open at all. This includes businesses, who would rather put code in the GPL than BSD because competitors are required to publish changes.
Of course, with content like an article things are a bit different than computer code, which gets hidden in the bowels of a computer while content is widely published. It’s easier to spot violations with public content than source code, perhaps.
Just to reiterate, are copyleft licenses inherently non-libertarian, or do they serve a useful purpose?
January 15, 2009 at 12:50 am-
CC is working on a new tool, called CC0 (CC Zero), that attempts to waive all copyright and related rights it is possible to waive, wherever in the world one happens to be. Yes, copyright is sticky.
See http://wiki.creativecommons.org/CC0
- January 15, 2009 at 12:59 am
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Copyleft does utilize copyright restriction, but I think it is interesting, even from a strictly libertarian perspective.
Essentially one offering software under the GPL or other works under CC ShareaAlike is saying that they won’t user copyright to restrict your freedoms around the licensed work so long as you don’t restrict their freedoms around versions of the same work.
Not perfect, and in many cases a permissive license or better yet the public domain is more appropriate, but still worth understanding and appreciating. I suspect if it were equally as simple to commit to opting out of enforcing other legislation against others who similarly commit, the world would be a very different place.
January 15, 2009 at 4:21 am-
So you are saying that,
You get a an automatic copyright when you produce and publish IP and even though you make it known that the material is free for all, but the government prosecutes anyone that copies the IP you have given away for free.
Here I thought only the owner of the IP can initiate a prosecution against copyright infringement by a formal complaint and if he or she doesn’t, this effectively means there would be no copyrights on certain IP.
January 15, 2009 at 10:31 am-
I see what you’re saying WRT the share-alike license, but I’m still not sure it makes the license unlibertarian.
All it’s saying is “Party B may use the work of Party A, provided Party B does not prevent third parties from copying his own work.” But party B never had a right to prevent third parties from copying his own work in the first place, so I’m not sure whose rights are being violated in this situation.
January 15, 2009 at 12:31 pm-
@Stephan_Kinsella: Puh-leeze. This is just rationalization. You know very well that you can at least take *some* de minimus effort to waive the legal right to prevent others from copying you; the fact that the existing methods are imperfect is no excuse, and that argument certainly doesn’t justify adding a copyright notice.
Also, you and others have gone a lot further by selling your copyrights to publishers. When you do so, you are, by your own standards, authorizing others to commit aggression for you, which is morally equivalent to the aggression itself. Perhaps it’s “hard” to promote the book’s ideas otherwise. I disagree, but regardless, you don’t seem to even try.
You’ve already conceded that your position on IP hinges on wholly arbitrary assumptions you can’t justify. Time to give up this crusade until you can put it on firmer footing.
January 15, 2009 at 9:12 pm-
The goal of using copyleft licenses, at least in theory, is to propagate open code/content, instead of having it get sucked into a proprietary blackhole.
Which is a stupid argument – obviously, nobody has the power to “suck it into a proprietary black hole”. At most, they can utilize it in a proprietary product – and so what? That doesn’t make the existing code cease to exist – it doesn’t affect it in any way whatsoever! So where is the problem, again?
Here I thought only the owner of the IP can initiate a prosecution against copyright infringement by a formal complaint and if he or she doesn’t, this effectively means there would be no copyrights on certain IP.
But how can you ever be sure he won’t? He can say he won’t…and then change his mind a few years down the track when your entire business depends on “infringement” of his “IP”, and hold you to ransom, etc.
January 15, 2009 at 11:13 pm-
Silas: “Puh-leeze. This is just rationalization. You know very well that you can at least take *some* de minimus effort to waive the legal right to prevent others from copying you; the fact that the existing methods are imperfect is no excuse, and that argument certainly doesn’t justify adding a copyright notice.”
Silas, pray tell, how does one “waive” one’s copyright? Are you suggesting that one add, in footnote 13, the text, “I hereby waive my copyright.”? Would that work? Or, are you one of those I described in the first and third paragraphs of my post above?
- January 16, 2009 at 3:38 am
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“Silas, pray tell, how does one “waive” one’s copyright?”
The one, who is the owner of the material, writes somewhere the material is not copyrighted and the one doesn’t go after people who copy it.
Pretty simple really.
January 16, 2009 at 4:58 pm-
@ktibuk: It isn’t that simple, legally you have the copyright no matter what, that is the point of Stephan’s post. While it is true that nothing will happen to the publisher if the copyright owner never takes it upon themselves to sue them, most publishers won’t publish copyrighted material based off of a promise by the copyright holder not to sue them. There is no assurance that the copyright holder won’t change their mind, especially when there is a monetary incentive created by the state to do so.
January 16, 2009 at 5:08 pm
January 20, 2009 at 3:10 am-
The problem with simply saying that a work has no copyright is it would not prevent another from imposing such copyright restrictions on other people.
While there remain IPR laws, Steve’s idea of holding copyright in order for others not to abuse a lack of copyright seems to be the best means of protecting people.
January 29, 2009 at 10:39 am-
Sounds like one could use the WTFPL license:
(may not be appropriate for work/tykes)
-gumnos
January 29, 2009 at 10:54 am-
“I’ve pointed out to such people innumerable times, to little avail, that copyright is a noun, not a verb”
I can’t find any record as to when it happened, but copyright is shown as having a transitive verb usage by both merriam-webster and dictionary.com.
I’m sure it comes as a surprise; I was more that a bit disheartened to learn that my own pet peeve (funnest) is also grammatically correct.
- January 29, 2009 at 12:29 pm
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Mark: “”I’ve pointed out to such people innumerable times, to little avail, that copyright is a noun, not a verb”
I can’t find any record as to when it happened, but copyright is shown as having a transitive verb usage by both merriam-webster and dictionary.com.
I’m sure it comes as a surprise; I was more that a bit disheartened to learn that my own pet peeve (funnest) is also grammatically correct.
”My point was not a semantic or grammatical one. IT’s a legal one. You cannot “copyright” something since there are no steps needed; no action by the author. IT’s just automatical, by federal law. This is what people don’t get; and they imply otherwise when they use it as a verb.
- January 29, 2009 at 2:23 pm
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Ah. Thanks for clearing that up. Good point, and well made. I’m now left wondering whether the verb usage is antiquated or applicable to other cultures. It’s not as though we use the verb when we apply for an extension of copyright. Odd.
- January 29, 2009 at 2:51 pm
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Mark, you used to have to take affirmative steps, like copyright notice or registration. So then it made sense to say you copyrighted something; and if you failed to do this, then you didn’t copyright it. Much like you can “patent” something now, if you file an appliation for it. If you don’t, you don’t get a patent.
I think it’s a bit of a leftover from those days but mostly the usage stems from ignorance of the fact that you dont’ have to put a copyright notice or register or do anything to get a copyright.
- January 29, 2009 at 3:30 pm
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“This does not waive copyright. Stating you do not have a copyright does not make this true.”
This means there are problems with the legislation.
Just because there are rent control laws, doesn’t necessarily mean we should abolish private property when it comes to land.
January 29, 2009 at 3:34 pm-
I’d just like to point out that a “non-commercial” CC license doesn’t mean the work can never be commercially published. It only means the author must be asked permission (and he can even grant it for free at that time).
- January 29, 2009 at 3:49 pm
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ktibuk:
“”This does not waive copyright. Stating you do not have a copyright does not make this true.”
“This means there are problems with the legislation.
“Just because there are rent control laws, doesn’t necessarily mean we should abolish private property when it comes to land.”
This is an evasion. You IP-redistributionist-socialists want to argue we anti-IPers are hypocritical since we don’t “waive” our copyright. 1. This is not hypocritical; our policy beliefs, and how we navigate in the imperfect world you and your kind foist on us, are separate issues, so there is no contradiction; 2. even if we are hypocritical, it does not prove you are right in your IP socialism, so this is just ad hominem; and 3., finally, it is not possible to “waive” copyright, as you claim, so your entire attack disappears. You want to blame us for opposing copyright, and for having copyright, yet the latter is not in our control. It is imposed on us by you and your ilk.
- January 29, 2009 at 8:45 pm
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Outside the US, the CC attribution license comes pretty close to public domain. In Europe there are usually “moral rights” that can never be waived or sold to someone else. These are the right of attribution and the right to the integrity of the work. You cant take a public domain work and claim it as your own, or change it and claim it is as the author intended. These rights last forever, and it is up to the state to make sure they are not infringed after the author is dead and even after the work is in public domain.
December 25, 2009 at 7:11 pm-
Stephen,
I think that you misunderstand the purpose of the GPL. It is not to ‘free code’ in the way you think. Instead it is to make sure that code written under it is always free for the user to modify and run, provided that they pass along the same rights, and contribute back any changes that they distribute.
In effect, by using the GPL, I am saying that you can run and use my code, and the cost of doing so is to contribute any code you write and redistribute back to the project.
Think about it. Microsoft charges for Windows. Linus charges for the Linux kernel. They just do it in different ways (and since I prefer Linus’s way, guess what I use?)
December 25, 2009 at 7:54 pm-
The Mad Hatter, who in this discussion said that the GPL is to “free code”? There is nobody named Stephen in this discussion, and assuming you meant Stephan, I don’t see any comments from him about the GPL. Also, note that this is from almost a year ago.
April 12, 2011 at 5:54 am-
Is copyright imposed by virtue of the author’s nationality or by jurisdiction of publication?
Is there any legal jurisdiction that does NOT subscribe to the Berne Convention? In other words, is there anywhere that one can publish outside the regime and automatically evade automatic copyright?
Related to Nelson Cruz, so how does one avoid violating ‘moral rights’ by creating an adaptation based on a public domain work? Must EVERYTHING be paraphrased?
How is a translation of a public domain (expired copyright) not a copyrighted adaptation? It is a total paraphrase of the original by being translated. If one creates an adaptation based upon a translation of a work with an expired copyright is it a violation of the translator’s copyright?
Furthermore, how ‘bad’ (deviant) must a translation-adaptation be to violate the ‘moral rights’ of a dead author of an expired copyright work?
Is it a violation of the a dead author’s (expired copyright) ‘moral rights’ to include the author’s original work in it’s entirety in his language along side an adaptation from a translation in another language? How could that violate the ‘integrity’ of the original when the two works are clearly distinguishable as being the works of separate authors in separate languages?
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