Yes, the but the creator is sacrosanct. I think this is what Bill Gates is (giving him the benefit of the doubt here) trying to get at.

I hope Creative Commons and their ilk believe this as well, but unfortunately they do not make this 100% clear.

For example, Stallman has made the waters murky with his talk about "software must be free".

Yes, all distributors and middlemen (and I will happily say this) should be creatively destroyed or near creatively destroyed if they set up shop more than 10 years ago.

But to do this without falling into the trap of trumpeting the cause of the 'community', we need to (and I include myself) spend more time trumpeting the cause of the creator.

GPL, CC, BSD, etc .. these are not about about rewriting copyright to give more power to the community and users. These are to extend and create *further* incentives for the creator to create.

Most creators understand this. Few consumers of their work do.

Posted by: blaze at January 8, 2005 04:24 PM

No, blaze, the creator isn't sacrosanct. Not in the U.S., at least.

In many (most?) European countries, they have what are called 'moral rights', which are intellectual property rights deemed to be held by the creator (and only the creator -- one cannot typically sell, bargain or trade them) in their creative output. U.S. law does not generally recognize moral rights, except for 'visual art' (paintings, sculpture, drawings, photographs and the like) under the Visual Artists Rights Act. Whether any such rights or analogues exist for other media is murky at best (see: http://www.rbs2.com/moral.htm and http://cyber.law.harvard.edu/property/library/moralprimer.html).

In the U.S., intellectual property law is primarily founded upon Article 1, Section 8 which reads in pertinent part:

"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;"

You'll note that the idea is to 'promote the progress of science and useful arts'. It's a pragmatic bit intended to benefit 'we the people', not a doctrinal bit based on moral, natural, intrinsic or some other sort of 'sacrosanct' right of creators. Indeed, copyright (and other IP law) is riddled with exceptions and limitations (e.g., 'fair use') carved out to preserve the public good.

The whole point of IP law is to maximize the public good. IP law does this by granting limited monopolies on certain uses of creative product (expression in the case of copyright, ideas in the case of patents) in order that the creator may secure to themselves some of the benefit of their creation(s), which ostensibly induces the creators to create more than they otherwise would.

The interests of the creator are in no sense absolute or sacrosanct. It is subject to balancing against the public good. This is true of other forms of property as well: your ownership rights with respect to the land your house sits on (assuming you are a homeowner) are limited by eminent domain, for example.

These limitations are the price you pay for living in a society. Property rights, at their root, are simply the power of exclusion: to 'own' something is to be able to exclude others from the use and enjoyment of that something. Your ability to exclude others is ultimately limited by the amount of coercive force which you can bring to bear: if someone wants to take something from you and can bring a bigger stick/gun/missle than you have, they win. Right or wrong, they win. By participating in a society of laws, you gain the coercive force of the entire society to back up your (lawful) claims of ownership. In return, you accept the fact that society will not back some claims (e.g. claims on unlawfully-obtained goods) and may even bring its coercive force to bear against your claim (e.g. to collect income taxes).

Intellectual property further differs from physical property in that exclusion is much less directly correlated with value than it is with physical property (real property and chattels). The pleasure of listening to a favorite song, for example, is none the less for your being unable to exclude your neighbor from listening to the same song. Indeed, in some ways ideas actually *gain* value from being widely distributed: having listened to the same song may give you and your neighbor something to discuss over the fence row, or your neighbor might be a talented musician who, upon hearing the song, is inspired to create a new one, or even just a new version of the original, that you like as well as the first but for different reasons. Depending on how similar your neighbor's version of the song is to the original, he may well not have diminished the value of the original, but instead created new value through his modifications. Ministry, for example, does an extremely poignant version of Bob Dylan's /Lay Lady Lay/ (and 'poignant' is not a word I'd use to describe much of anything else Ministry has done ;-). It's one of my favorites of their recordings. Yet its existence doesn't diminish my apprecaiation for the original Bob Dylan version one whit -- I own (legal) copies of both, and listen to each for different reasons.

Certainly, there are areas in which notions of basic fairness argue for strong protections for the rights of creators -- the right of attribution, for example -- but they are neither absolute nor 'sacrosanct', and in fact the right of attribution (to name one such) is signed away every day in the U.S. when freelancers and new hires sign 'work for hire' contracts.

The GPL, CC, BSD and so on are indeed about a rebalancing of the interests of creators and the public, but it is not so one-sided as you (or Mr. Gates) suggest.

Posted by: setmajer at January 9, 2005 01:42 PM

Yes, I am aware factually of what patent law is claiming to exist for. There is nothing to argue with what you say and I agree with it all.

However, my statements are not a discussion of what's written in the law books but rather a discussion on how to win the hearts and minds of the people who might just end up deciding on the future of copyright law.

It is my belief that people on both sides can rally to one common ground: that the rights of the creator is sacrosanct.

I think we can all agree that the enemy here is not the folk with the bright ideas, but rather the distributors and the so called 'people skilled managers' making a living off of the backs folks with the bright ideas.

Fortunately, with the internet, blogs, open source processes, and what not we now have processes and organisations which allow the folk with the bright ideas to shine and get their day in the sun without having to deal with the annoying middlemen.

Now some people want to take this a step further and say it's also about giving the community the right to use the content of the bright folk without having to pay for it.

These people are DEAD wrong and I will happily call them anything which will connotate negatively.

This is because I believe the fountainhead of all human progress will be because creators have absolute and complete control over their peaceful content.

Which is what I believe Creative Commons, GPL, BSD, etc is all about. It's about giving creators the ability to flexibly dictate how their content will be used and to do it in a way that they do not have to go through pointless middlemen in order to do it.

It is not about rewriting Copyright law. Copyright law as it stands is find. In fact, it should be made MUCH stronger.

I believe in doing so, other forms of copyright, such as GPL or Creative Commons will become much more effective - thus allowing the important people among us to thrive, the rationally self interested creators of peaceful content.

Posted by: blaze at January 9, 2005 07:04 PM

I am only refering to content btw, in the context of Creative Commons.

As for patents that's a completely different thing as it's not clear at all who created certain processes, especially when they are trivial as is often the case of Software Patents.

Patent law, as it stands right now, does not make the rights of the creator sacrosanct. Rather, it makes the rights of the lawyer sacrosanct.

I am also not talking about monopolies either. There is a different set of philosophies which come into play after a certain level of price control / network effect takes place.

However, I believe that if creators (the original inventors) had more power such monopolies would not come into being.

Posted by: blaze at January 9, 2005 07:13 PM