Crosbie Fitch 's Techdirt Comments

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  • On the post: Should We Allow Consumers To Sell Their Souls?

    Crosbie Fitch ( profile ), 19 Apr, 2010 @ 09:01am

    Re: Re:

    No, of course nothing prevents payment in advance, but payment doesn't bind the payee to provide service.

    The agreement is that the payment is equitable exchange for the service. Either the service is provided or the payment is returned, but the payee (if an individual) may not be forced to provide the service.

  • On the post: Should We Allow Consumers To Sell Their Souls?

    Crosbie Fitch ( profile ), 19 Apr, 2010 @ 07:18am

    "Contract law is founded on the notion that we are all free and equal individuals left to our own devices to enter into whatever transactions we wish."


    Only if you define 'transaction' as an exchange of what the individual is able to be alienated from, i.e. their property, not their natural rights (life, privacy, truth, liberty).

    NB Labour is a condition to a transaction, it cannot be forcibly extracted (qv slavery). Similarly, people cannot bind themselves to perform future actions with promises since they cannot alienate themselves from their liberty. We can agree that if I wash your car you'll pay me $10, but I cannot promise to wash your car next week (however much you pay me today), since I cannot alienate myself from my liberty not to wash your car (refunding your payment). As far as individuals are concerned, making and keeping promises is purely a matter of reputation, not bondage. Corporations (having no liberty) can of course promise to do what they like in a contract.

    As for purchase of products, if the transaction is clearly portrayed as a simple exchange of money for goods, then it would be deceitful to induce the purchaser's agreement to an additional and unrelated exchange.

  • On the post: What If The Very Theory That Underlies Why We Need Patents Is Wrong?

    Crosbie Fitch ( profile ), 15 Apr, 2010 @ 12:22pm

    Re: Re: Correlation != Causality

    Incidentally, I should have said Correlation!=Causation.

    But, I get the idea you recognise innovation thrives on the liberty to copy and improve, not on the suspension of that liberty (by the privilege of patent).

  • On the post: Copying Is Not Theft

    Crosbie Fitch ( profile ), 15 Apr, 2010 @ 12:06pm

    Re: Re: Violation of natural right vs Infringement of privilege

    If we recognise privacy as the individual's natural ability or power to exclude others from their dwelling and possessions, then this is a natural right - whether protected by law or not.

  • On the post: Copying Is Not Theft

    Crosbie Fitch ( profile ), 15 Apr, 2010 @ 12:03pm

    Re: Re: Violation of natural right vs Infringement of privilege

    I think you're agreeing with me.

    The people who disagree with me believe you can sell copies of your diary and still prosecute people if they copy what they've purchased.

  • On the post: Copying Is Not Theft

    Crosbie Fitch ( profile ), 15 Apr, 2010 @ 12:00pm

    Re: Re: Violation of natural right vs Infringement of privilege

    I agree.

  • On the post: Copying Is Not Theft

    Crosbie Fitch ( profile ), 15 Apr, 2010 @ 09:57am

    Violation of natural right vs Infringement of privilege

    It remains important to bear in mind that the natural right is to privacy.

    Theft is a violation of that right (from which the notion of property derives), through the unauthorised removal of someone's material possessions.

    Problems arise when people infer a natural right as limited to a specific violation. It is just as much a violation of privacy to burgle an individual's house and make and remove a copy their diary as it is to remove their diary. The fact that a burglar may be productive in their act is irrelevant.

    So people do have a natural exclusive right to the intellectual works in their possession, against unauthorised copying as much as removal. This is a natural monopoly that lasts a lifetime.

    It is only the unnatural monopoly of copyright, that 18th century privilege, that inveigles itself as a laudable extension.

    So, copying is not theft, but that doesn't mean that in some cases unauthorised copying can't violate privacy as much as unauthorised material removal. A thief generally seeks to gain. The spiteful burglar seeking to deprive is a rarity.

    In other words, to elevate copying into an intrinsically good act because it is apparently productive, is to lose sight of what makes theft unethical.

    From: http://opendotdotdot.blogspot.com/2010/04/digital-economy-act-built-on-sand.html

  • On the post: What If The Very Theory That Underlies Why We Need Patents Is Wrong?

    Crosbie Fitch ( profile ), 15 Apr, 2010 @ 08:49am

    Correlation != Causality

    "Because we did have patents throughout the industrial revolution, they must therefore have been critical in enabling the industrial revolution"

    So, without patents the industrial revolution would never have occurred...

    Better keep them on the statute books then eh?

    Just to be safe.

  • On the post: Rather Than Considering Information 'Property,' What About Looking At Productive vs. Destructive Uses?

    Crosbie Fitch ( profile ), 15 Apr, 2010 @ 08:22am

    Re: Re: Re: Re: Re: Re: Re: What is clear about the Constitution

    It only seems 'clear' if you want to believe that the Constitution empowers congress to grant monopolies - despite the fact that it doesn't do so.

    You evidently also want to believe the Framers thought granting monopolies was a good idea, though for some strange reason they didn't express this thought in the Constitution.

    You can either take the Constitution literally, as an empowerment of Congress to secure an individual's natural exclusive right, OR you can ignore what it says, and simply believe that despite no clear statement, the Framers intended Congress to have the power to grant monopolies in literary works.

    Why the latter approach is so popular I can only explain as evidence of how seductive monopolies are to those who would exploit them. People need to believe that their privileges have some greater sanction than simply commercial expedience and legislative concession, e.g. "If we can persuade ourselves the Framers thought monopolies were a good idea, well, they must be. It was good they were legislated, and we can carry on suing kids for file-sharing without losing any sleep over it".

    I'll leave you with this snippet I've copied(!) from Wikipedia:

    Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

    It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect - that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few . . . They . . . consequently are instruments of injustice.

    The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

  • On the post: Rather Than Considering Information 'Property,' What About Looking At Productive vs. Destructive Uses?

    Crosbie Fitch ( profile ), 15 Apr, 2010 @ 06:34am

    Re: Re: Re: Re: Re: Re: Re: Re: What is clear about the Constitution

    You know, rights aren't like candy, much as people refer to them that way. People can give each other permission to do things that without it would violate their rights.

    Thus I can permit you into my house to look at my etchings, where if you did so without my permission you'd be violating my right to privacy. However, I cannot grant you the right to violate my privacy since my privacy is inalienable and I cannot part with it (even by contract). Thus I can permit a TV crew into my home, but I cannot sell them the right to enter it. I can sell/vacate my home such that it is no longer my private residence, but then that's not granting any right.

    Copyright is only perceived as a 'natural state of affairs' because people have become used to it (it was established in the 18th century). No doubt the children of plantation owners found slavery a natural state of affairs too.

    What the Internet is revealing to more and more people every day is that copyright is not at all a natural state of affairs - but that the liberty to share and build upon mankind's culture is.

  • On the post: Rather Than Considering Information 'Property,' What About Looking At Productive vs. Destructive Uses?

    Crosbie Fitch ( profile ), 15 Apr, 2010 @ 06:22am

    Re: Re: Re: Re: Re: What is clear about the Constitution

    Perhaps you'd be so good as to demonstrate where in the Constitution it stipulates that congress may grant privileges/monopolies ?

    I concede that MANY people believe that it's CLEAR that it does so, but none of these people tend to do more than cite the clause (that congress should have power to secure an individual's exclusive right).

    There's a bit missing in the leap of interpretation from that clause to the inference that the Constitution empowers congress to grant monopolies in literary works.

    I don't dispute that there are utilitarian arguments for granting monopolies in literary works, and those were no doubt used to persuade copyright's legislation, but the problem is inferring Constitutional sanction for it that doesn't actually exist.

  • On the post: Rather Than Considering Information 'Property,' What About Looking At Productive vs. Destructive Uses?

    Crosbie Fitch ( profile ), 15 Apr, 2010 @ 01:21am

    Re: Re: Rights

    Moral rights are derivatives of the natural right to truth (against impairment). The right to truth is a social right as well as an individual right. It is a matter of fact or veracity. It is not a privilege to be bought or sold. This is why natural rights are inalienable, and in the case of truth, inviolable.

    Truth is also not a matter of control/power. You cannot have a privilege to decide who wrote something (without violating the natural right to truth). An author may be considered to be likely as the most concerned with the veracity of their authorship, but all those interested in someone's writing are also concerned not to be deceived as to a work's authorship.

    Trademark is another kettle of fish (a registry for the purposes of disambiguating authorship), one we can go into another day.

    I think we've agreed that copyright is a privilege. Copyright is fundamentally a violation of the individual's natural right to liberty since it derogates from the individual's liberty to share and build upon mankind's culture, to tell or sing the stories and songs they hear, and modify them. Copyright is so called because it suspends from the public their right to copy, to reserve this as a privilege for the exploitation of the press.

    What remains is that you persist in supporting the received delusion that the Constitution granted the privileges of the monopolies of copyright and patent - instead of simply recognising the individual's natural exclusive right to their intellectual works and the need for this to be secured.

  • On the post: Rather Than Considering Information 'Property,' What About Looking At Productive vs. Destructive Uses?

    Crosbie Fitch ( profile ), 15 Apr, 2010 @ 12:54am

    Re: Rights

    It is precisely due to copyright that 'right' has become known as a (contraction of) 'legally granted right', and that people have lost sight of its primary meaning as a natural right. Because of this, today, people have to qualify right with 'human' or 'natural'. Sadly many people now think human rights are granted as much as privileges such as copyright and can be undone by legislation.

    I really don't know why you're so keen to continually assert that the privileges of patent and copyright are granted in the constitution. They are not. Even you recognise they are 'legal', so at least recognise that they are products of subsequent legislative acts. The Constitution makes no mention of them.

    There is no 'should' about making privileges into rights, because a privilege is a product of man made law, whereas a right is a law of nature (to be protected by a government empowered by its people). One can make a privilege non-transferable as in droit de suite, but this doesn't make it a natural right.

  • On the post: Rather Than Considering Information 'Property,' What About Looking At Productive vs. Destructive Uses?

    Crosbie Fitch ( profile ), 14 Apr, 2010 @ 03:11pm

    Re: Re: Re: Re: What is clear about the Constitution

    The good thing about natural rights is that they are obvious/self-evident. So, obviously, one always naturally has a natural right to do anything one wants with one's own ideas, to keep them to oneself or disclose them - and as you observe, those with whom we share them have the same natural rights to an idea received as one created.

    It is privileges that interfere with our rights. Patent interferes with our natural right to implement any design we may think of.

    AGAIN: the Constitution grants no rights.

    Copyright and patent are legislative acts occuring several years after the Constitution, that by dint of power congress assumed (unconstitutionally) grant privileges to EXCLUDE others from reproducing a literary work or a design.

    It's not too difficult to get from a 'privilege to exclude' to a 'legal right to exclude' to a legally granted 'exclusive right', and consequently to pretend that the 'exclusive right' just legislated is the same exclusive right recognised by the constitution (because the words match). And even to come up with a disgracefully flaky conjecture that the Framers must have been thinking of an 'exclusive right yet to be granted' rather than the exclusive right individuals are imbued with by nature. Because, obviously, a monopoly is far more lucrative to those hoping for the best possible interpretation and the Framers were big fans of monopolies - as everyone knows [sarcasm].

    Yes, it's disappointing how many people think copyright is about preventing copying qua plagiarism rather than copying qua reproduction.

  • On the post: Rather Than Considering Information 'Property,' What About Looking At Productive vs. Destructive Uses?

    Crosbie Fitch ( profile ), 14 Apr, 2010 @ 02:42pm

    Re: Re: Re: What is clear about the Constitution

    Yes, I tried to explain in a comment to Timothy Phillips at http://mimuspolyglottos.blogspot.com/2010/04/justice-stevens.html that congress had no power to grant privileges (or 'legal rights'), only to secure the natural exclusive right already in existence, but he chose not to publish my comment. :-p

    Some people are highly wedded to the idea that copyright is recognised as a natural right by the constitution, rather than simply being the privilege of a monopoly, subsequently granted (unconstitutionally).

    Moral rights mostly concern the natural right to truth (against its impairment), so I have far less of a problem with them, but they still get corrupted by proprietary notions induced by copyright.

  • On the post: Rather Than Considering Information 'Property,' What About Looking At Productive vs. Destructive Uses?

    Crosbie Fitch ( profile ), 14 Apr, 2010 @ 02:29pm

    Re: Re: Re: Re: Re: Re: What is clear about the Constitution

    I have some ideas (of my own) and I own them because you cannot take them from me, you cannot have them unless I choose to give them to you, and I may require something from you in exchange.

    If you read Jefferson's explanation again you might notice a difference between 'ownership' and 'property'.

    You say "Once I read the idea", however, there are vital steps between me writing my idea down and you reading the paper. I have a natural exclusive right to the paper and the idea written upon it. It's remains my property until I decide to sell or give it to you. You can neither read it, copy it, nor use it until that point.

  • On the post: The Future Of Content: Protection Is In The Business Model — Not In Technology

    Crosbie Fitch ( profile ), 14 Apr, 2010 @ 02:16pm

    Re: Comment on business model

    There is an effective business model for protection, it's called the natural right to privacy and the liberty to exchange one's labour in a free market.

    No-one can take your intellectual work from you unless you part with it voluntarily, and in terms of business, in exchange for whatever the market will bear - which if you have a lot of fans can be a considerable sum.

  • On the post: Rather Than Considering Information 'Property,' What About Looking At Productive vs. Destructive Uses?

    Crosbie Fitch ( profile ), 14 Apr, 2010 @ 02:12pm

    Re: Re: What is clear about the Constitution

    Firstly, the Constitution represents the power provided by the people to congress. It's not helpful to talk in terms of the Constitution giving anyone any rights, because it doesn't and cannot. It can only recognise the rights that people already have.

    Ideas may well not be property, but they can be owned by those who have them (you cannot have my idea unless I give it to you). Intellectual works (fixed in a physical medium) are property however, and individuals have a natural exclusive right to their intellectual work, their intellectual property. What they don't naturally have is the power to prevent competitors purchasing their work and then producing further copies - people do not naturally have reproduction monopolies such as copyright or patent.

    So, yes, I do disagree with copyright, as with any other state granted monopoly. I am a copyright abolitionist.

  • On the post: Rather Than Considering Information 'Property,' What About Looking At Productive vs. Destructive Uses?

    Crosbie Fitch ( profile ), 14 Apr, 2010 @ 02:02pm

    Re: Re: Re: Re: What is clear about the Constitution

    Not so simple. I can write my idea down. It still belongs to me alone. I can copy that writing. I still have a natural exclusive right to the copy and the original. It is only when I give you a copy that the intellectual work belongs to you as well as me, but it is still exclusive to both of us.

    Copyright is all about me having the power to prohibit you from making further copies of the copy I've given you - a monopoly. However, the constitution said nothing about this monopoly, only about the individual's natural exclusive right.

  • On the post: Rather Than Considering Information 'Property,' What About Looking At Productive vs. Destructive Uses?

    Crosbie Fitch ( profile ), 14 Apr, 2010 @ 01:43pm

    Re: Re: What is clear about the Constitution

    Sage, the US Constitution could not recognise privileges enacted by legislation in other countries. By definition, it started from a clean slate (of nature, natural law, and natural rights).

    In any case, the Constitution made no reference to British legislation.

    It is only today that 'right' is more familiar to people as an abbreviation of 'legally granted right' (privilege), than 'natural right' as was the meaning used by framers of the Constitution in the 18th century.

    So, 'exclusive right' refers to a natural right of the individual, not one granted by legislation (the constitution gave no power to congress to grant privileges).

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