Subject: entrepreneurship, liberty, and U.S. copyright law
From: Tom Lord <lord@regexps.com>
Date: Mon, 10 Sep 2001 04:56:17 -0700 (PDT)


It is surely vital to participate in the political process in such a
way as to help defeat proposed legislation as offensive as SSSCA.

A positive agenda -- implementing alternatives to SSSCA -- is at least
equally important.  Entrepreneurs sympathetic to FSBs have a role to
play.  Here is why.

There is no constitutional promise of "copyright protection".  Rather,
there is this:


       Article 1, section 8:

       The Congress shall have power [...];

       To promote the progress of science and useful arts, by securing for
       limited times to authors and inventors the exclusive right to their
       respective writings and discoveries;


Under both liberal and conservative understandings of judicial power
and truth, the meanings of "exclusive right" and "to promote the
progress of" are never fully known, but rather, our knowledge of their
meaning evolves with circumstance.  (This is not the same thing as
taking a radical pseudo-post-modern position that their meaning is
arbitrary.)  Universal recognition of this aspect of truth and textual
interpretation among the most relevant intellegentsia is one of the
great philosophical and political achievements of the 20th century --
a breathtakingly positive (and recent) advancement in the state of our
society.  (Probably most people haven't even noticed yet; I hope I am
not being politically regressive by mentioning it.)

The technology of digitally recording and distributing information
creates a difficulty in understanding the cited clause of Article 1,
section 8.  Prior to digital technology, it was possible, via
non-totalitarian means, to usefully understand "exclusive right" in
terms of basic copyright protections: the right to reproduce
information, to distribute it, to create derivative works, to make
public display, and to perform works publicly. [1] In the era of
digital information, the basic copyright protections are no longer
(as) enforceable, except by totalitarian means.  Congress does not
have the power to impose totalitarian law [2].

Thus, the digital age has lit the fuse: our understanding of copyright
law is doomed.  We face a copyright "melt-down".  Copyright
protections must inevitably undergo radical reconsideration.  The
SSSCA is simply the latest in a series of offensively unconstitutional
attempts to implement that reconsideration.  (Alas, the enlightened
court is unable to check such laws until specific cases come before
the court; even then, they are limited to the principles most relevant
to the case at hand.  Thus, enemy's of liberty, whether inadvertent or
evil, can cause enourmous amounts of damage to our society with such
laws.)

But what, in the age of digital technology, does "exclusive right"
mean?  Clearly it means _some_ legal right, assignable to authors and
inventors, pertaining to their writings and discoveries, which has the
overall effect of promoting the progress of science and useful arts.
This is a huge degree of freedom -- we have the opportunity to be
quite creative and inventive.

What legal rights are specifically the "exclusive right" of Art. I,
section 8?  Well, it is the limited power of congress to define such a
right.  But they do not make their definitions in a vacuum.  The state
of our society provides the context.  That is where FSBs, and more
recently FIBs ("Free Information Businesses") have a role to play.
Entrerpeneurs take note: you are defenders and implementors of
liberty.

In our current economic circumstance (where both individual poverty
and individual wealth exist), it seems inevitable that the progress of
science and the useful arts is, usually, most effectively promoted by
monetary compensation.  FSBs have begun to demonstrate that the
progress of the useful art of computer programming can be promoted
with quite limited copyright protections (much more can and must be
done).  In defense of liberty, our entrepreneurship must now also be
applied to other categories of digital information.  By discovering
and implementing liberty-preserving means of economically promoting
the progress of science and the useful arts, we can both clarify the
courts' understanding of Article I, section 8, and empower Congress to
give proposed legislation, such as SSSCA, the thorough snubbing it so
obviously deserves.  Perhaps this list should be renamed "fib".

The Free Software Movement is based, in part, in an understanding of
the right to copy (at least some kinds of) digital information as a
Natural Right.  One test of whether or not the exercise of some
ability is a "Natural Right" is (a) whether that exercise can not be
prevented except by totalitarian means and (b) whether that exercise
is, generally speaking, consistent with life in a free society.

No power granted to congress provides them with the power to deprive
us of Natural Rights (the preamble, reinforced by Amendment IX, most
directly expresses this).

The GPL beautifully exercises traditional copyright protections in a
manner consistent with the preamble and Amendment IX, in an era of
digital information, in such a manner as to preserve our Natural Right
to copy source code.  Moreover, the GPL helps to promote the useful
art of computer programming by exercising copyright protections in a
manner that assures access to source code.  FSBs and the
implementation of open source processes have begun to demonstrate that
free (libre) access to source code promotes the useful art of
programming more effectively than the alternative.

Is copying digital "entertainment" content a natural right?  Surely it
is.  Does free access to digital entertainment, and the right to
freely copy it, promote the useful arts?  The myriad uses of sampling,
covering, quoting, and performing suggest that it is so.  But the
tension between that Natural Right and the goal of promoting the
progress of the useful arts opens the door to errors such as the
SSSCA.  Relieving that tension is a matter of implementing economic
means of promoting the progress of the creation of digitally recorded
entertainment content -- the need for FIBs.

The EFF's recent publication of the Open Audio License is a call to
action for FIB entrepreneurs:

       This license is not designed to promote a particular business
       model, but rather is intended to be used as a tool that can
       enable artists to experiment with a variety of new business
       models that best suit their individual needs. [3]

Help preserve liberty.  Help insure that the specification outlined in
our constitution remains implementable.  FSB entrepreneurs of the
world, it is time to start implementing FIBs.


[1] Fishman Stephen, "Software Development, A Legal Guide", Nolo
Press, 1998.

[2] Jefferson et al. "The Constitution of the United States
(preamble)" 1776.

[3] "http://www.eff.org/IP/Open_licenses/20010421_eff_oal_faq.html"