Law in the Internet Society

East of Eben (First essay - first draft)

By UriHacohen - 23 Nov 2014

In his Article "Software as Property: The Theoretical Paradox", Professor Moglen suggested that in an environment where marginal cost is equal to zero, "anarchism (or more properly, anti-possessive individualism) is a viable political philosophy" (The Legal Theory of Free Software).

In the realm of software, Moglen’s facts instruct us that anarchism produces better software than any of our pre-existing propertarian modes. Distribution, it goes without saying, is also inherently bolstered in this regime. With regards to goods that are non-functional and impossible to evaluate by a single set of criteria (herein referred to as “non-evaluable goods”), such as music, art, prose and poetry, Moglen explains, anarchy will deliver superior distribution.

A question arises, if we were to take these assumptions as undisputed facts, can we then derive the conclusion that we must abandon the incentives that copyright law is attempting to promote? In other words, does superior distribution, in the realm of non-functional and non-evaluable goods guarantee the incentive for initiating creation?

When applying the anarchism model into the realm of non-functional and non-evaluable goods, I suggest using different stages of implantation. In the first stage, we nullify the creator’s exclusive right to use the work, run it, study it, copy it and share it with others. Using the Free-Software definition, these rights should be addressed as Freedom 0,2 and the first part of Freedom 1. In this way, we should be able eliminate a lion’s share of economic rights, rationalized by the utilitarian approach, the most dominating justification in the United States for copyright legislation. By eliminating this part of the economic rights, we will remedy a decent share of society’s distributive injustice.

One may ask, will people continue to create without the economic revenues as an incentive? In the software sphere, Moglen’s straightforward answer, we create "because we can" (Because It's There: Faraday's Magnet and Human Creativity), may very well be persuasive enough. However, should we assume the same results in the realm of non-functional and non-evaluable goods? For the purpose of this debate, let us presume that the answer is - yes. It is not inconceivable to assume that a true author will continue to write until the point of starvation, or, perhaps let her audience pay for her bread.

The second stage of implementation will be to terminate the exclusive right for the modification and creation of derivative works (Free-Software Definition - Freedom 3 and the second part of Freedom 1). Justification for these rights will also derive from utilitarian supporters but not without a fair amount of tailwind, provided by the coalition of moral rights supporters. This group will be advocating for the importance of integrity, meaning the creator’s right to bar intentional distortion, mutilation or other forms of modification to their work. Moral justification is not the most prominent of theoretical approaches to copyrights in the United States; it appears in a statutory form, only with regard to visual arts and at the state law level.

The third stage, will be to terminate the other part of moral justification, which is the right for attribution, meaning the exclusive right of the creator to get credit for his work and prevent misattribution (for simplicity, we will call this stage - Freedom 4).

When terminating these moral rights (thus applying Freedoms 3-4 and the second part of Freedom 1) can we still justly assume the outcome will not interfere with the creator’s incentive to create? In the realm of software, Moglen asserts that there is some merit to moral incentives: "famous Linux hackers, the theory is, are known all over the planet as programming deities" (Because It's There: Faraday's Magnet and Human Creativity). In the realm of non-functional and non-evaluable goods, I believe that the merit for these incentives is even more dramatic. Though, an argument can be made, that a true author will write until the point of starvation, rare are the Kafka’s of this world, I believe, that will live and die without the need for attribution.

To frame the question, why shouldn’t we settle for Freedoms 0,2 and the first Part of Freedom 1? To answer, I would argue, that, if Anarchism for non-functional goods, where marginal costs equals zero, yields inherently superior distribution, let us terminate all boundaries for distribution and promote infinite freedom of knowledge. By limiting the discussion to distribution, we will remedy distributive injustice and avoid entering the discourse over the legitimacy of moral rights and whether incentive for creation, ex ante, will enhance or decline at the expanse of attribution and integrity.

One may argue the merits of applying Freedom 3 and the second part of Freedom 1, while preserving only the right of attribution (dis-applying Freedom 4). My intuitive answer would be that, as a practical matter, due to the inherently problematic hybrid outcome of a regime that allows free modification but requires attribution, as in the BSD style license, I suggest avoiding separation of integrity and attribution rights.

In conclusion, I argue that some restrictions, in the form of moral right, might be necessary to incentivize creation. In a world of total annulment of moral rights (when Freedoms 3-4 and the second part of Freedom 1 apply)there will be no lone creators. All creation will become collective, thereby diminishing attribution. And, even if, as was argued in the realm of software, the collective is better suited then the individual to improve creation to perfection, does that model still provide the basic human fundamental incentive for initiating creation in the first place?

"Our species is the only creative species, and it has only one creative instrument, the individual mind and spirit of man. Nothing was ever created by two men. There are no good collaborations, whether in music, in art, in poetry, in mathematics, in philosophy. Once the miracle of creation has taken place, the group can build and extend it, but the group never invents anything. The preciousness lies in the lonely mind of a man".

John Steinbeck, East of Eden

There's a confusion here between the symbolic value of ideas and their actual content. The point you want to make isn't really in dialogue with me, and it would be better framed by leaving me out altogether. Otherwise, you have to deal not with what my ideas symbolize here, but what they actually are. This is a distraction from your real points.

First, the existence of property relations is not even roughly congruent to "there are monetary incentives to create." A moment's thought will convince you that creators are paid to create in systems where no property rights are present in the work, whether you think diachronically about human history, or synchronically about parts of human economic activity currently not part of the "intellectual property" paradigm. So any discussion that really responds to my ideas, the ones you are summarizing here, has to give up at the outset "Moglen means creators don't have to be paid anymore," or some other baloney like that. Arguments erected on that scaffolding are pure hokum from ground level up.

Second, the real outcome of networking the human race ought to be the quantative increase in human creative output by an order of magnitude, as the human race actually is allowed to use all the minds of the people who are poor, to read and write and listen and talk and paint and dance and watch and sing, just like rich people. If you are going to conduct some faux-utilitarian discussion, or write poetic fables, or anything in between, about what we are all doing on this planet, your ideas should be one way or another in contact with that reality.

Either your next draft should leave me out of the story, concentrating on what, in the most carefully thought-through way, you have to say yourself, or it should do me the justice of representing my thoughts the way I think them.

Shifting to attribution (First essay - second draft)

By UriHacohen - 23 Nov 2014


We talked in class about the injustice of maintaining all of human intellectual resources in private rich hands away from the lion’s share of the population, and about the restrictions propertarian models impose on the process of creation. I believe that when addressing these issues, we should not yet rush to abolish property based regime altogether. Maybe, it is enough to condemn the utilitarian approach, while preserving the moral rights rationalization for copyrights legislation. Perhaps we can "promote the progress of [..] useful arts" by preserving moral rights of the creator, while eliminating his economic rights. In this essay I will argue that open access movements, such as the Free Software movement and Creative Commons organization, are currently forging a shift in the mainstream discourse, when injecting moral values into the utilitarian based debate. This argument is not equally applicable to both movements, so I will address them separately.

Creative Commons

The Creative Commons model offers the creator to redesign the statutory bundle of property rights offered by the copyright act. The Creative Commons licenses enable the creator to choose how many of the exclusive property rights given he or she is willing to “sacrifice” for the purpose of enhancing the public domain. I will attempt to look at these licenses as a scale in which creators express their will to wave economic rights while preserving some or all of their moral rights. At the first level (licenses CC-BY(/NC)-ND) creators are willing to give up their exclusive right to use the work, run it, study it, copy it and share it with others, while preserving the rest of the exclusive rights given by the law. Creators are giving up only economic rights, meaning the right for monetary compensation for the distribution of their work. In the second level (licenses CC-BY-NC-(/SA)), creators are giving up, in addition to the rights stated above, the exclusive right for the modification of the creation and the right to make derivative works. Here, creators are continuing to forfeit economic rights, meaning monetary compensation for the right to modify. But, creators are also putting at risk their moral right of integrity, the right to bar intentional distortion of the work. At the third level (license CC BY-(/SA)), creators are giving up all of their economic rights, some of their moral rights but still holding to the most primal and precious moral right available, the right for attribution. Being the last right on the scale, the right of attribution is present in all Creative Commons licenses. I believe that the Creative Commons model, offers an alternative property rights regime that celebrates creators moral rights as opposed to their economic rights. This is a radical notion having the fact that the United Starts doesn’t have any legislative protection over moral rights at the federal level, accept with regard to visual arts. Moreover, Creative Commons gives a stronger right for attribution than what is usually offered in countries that respects moral rights, since the license offers the creator the option to choose the form of attribution.

Free Software

Viewing Free Software movement as advocating for the promotion of a legal regime based on the preservation of moral rights is far from being straightforward. First, there is no scale here, but freedoms. It seems that there is a fundamental distinction at the core level between the rational governing moral rights and Free Software. First, moral rights are focused in the creator intrinsic right in his creation where the Free Software community focuses on the public, and the need for open access. Second, it may be argued that while the main interest of the Creative Commons organization is distribution, the main concern of the Free Software community is modification and re-creation. This interest may be inferred from the fact that most of the Free Software Freedoms (1-3) deal with the rights to modify and to share the modified work. Moreover, this may be the reason for the primordial need for the source code to be available. Even if moral rights are not part of the Free Software community’s agenda, it is still possible to find moral rights in Free Software licenses. For example, the right for attribution is there, whether governed by the communal rationalization of attributing modifications to the right programmer, or by the intrinsic right of the modifying programmer himself. The right for discloser is available (Freedom 2) and even the right for integrity, at least in the philosophical sense, by preserving distortion of the source code by failing into propertarian hands (Share Alike).


Along side the declared objective of movements like the Free Software foundation and Creative Commons organization to promote free access and distribution, there is, in my belief another, even if incidental, objective of promoting moral rights. I think that this introduction of moral justification to the utilitarian based discourse in the United State is a valuable trend. I can only hope that with time, and proper education, creators will be more and more dependent on free goods and thus will be obliged legally (Share Alike) and/or morally to contribute their creations into the commons, while preserving the right for attribution.


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r7 - 24 Nov 2014 - 15:35:55 - UriHacohen
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