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The Copyright Monopoly Stands In Opposition To Freedoms Of Contract

14

Copyright Monopoly

Copyright Monopoly

In our series highlighting misconceptions about the copyright monopoly, we’re arrived at comparing them to contract rights. Several people who defend the monopoly from a libertarian standpoint claim that a sale can be put under any conditions, otherwise known as freedoms of contract. The copyright monopoly stands in opposition to this freedom.

We have previously examined how the copyright monopoly stands in opposition to property rights. This doesn’t, in and of itself, invalidate a mechanism where people transfer exclusive rights (“monopoly rights”) by contract – it just highlights that the copyright monopoly cannot be defended from a standpoint of defending property rights, as the copyright monopoly limits property rights and stands in direct opposition to them.

Once we go beyond property rights and look at the right to transfer exclusive rights in general, we can talk more easily about the right to contract and how it would fit with the exclusive rights we know as the copyright monopoly.

Often enough, the argument is heard that the copyright monopoly is an extension of, or based on, the right to sign contracts voluntarily. It is argued that you can transfer a right (a property right, a monopoly right, or other form of right) under any conditions that you and the buyer agrees on, and that this would be part of the freedoms of contracting.

In other words, “if you don’t agree with the copyright monopoly terms – that is, the terms of sale – don’t buy the DVD.”

But it this really what the copyright monopoly is? Freedom to contract? Let’s look at what happens when Alice sells a DVD to Bob (possibly through an intermediary that, for all intents and purposes, mediates the contract), and the sale includes a written condition to not share the bitpattern on the DVD with anyone else, which Bob even reads, understands, contemplates, and signs.

In this case, Bob would be bound by contract to not share that bitpattern. So far, so good. But let’s assume he does anyway. He shares the bitpattern with Carol, who manufactures a copy of the DVD using her own parts and labor.

In this, Bob would be in breach of contract with Alice. But what about Carol’s copy? Carol has signed no contract with Alice whatsoever, and contracts aren’t contagious in the sense that they follow the original object, concept, idea, or pattern; they require voluntary acceptance from an individual, which Carol has not given. Carol has signed no contract, neither with Bob nor with Alice.

Thus, Carol would not be bound by the original contract in the slightest on a functioning free market, regardless of Bob’s breach, and she would be free to share the bitpattern of her own copy of the DVD as much as she pleased with David, Erik, Fiona, and Gia, who could all manufacture their own copies from the bitpattern that Carol shared, without any breach of contract having taken place.

But the copyright monopoly prohibits this. Carol would be in breach of the copyright monopoly, which is a highly unnatural construction on a free market. Contracts don’t work this way at all, and therefore, we have demonstrated clearly in this example that the copyright monopoly cannot possibly be seen as an extension of the freedom to sign contracts.

But it goes beyond that observation. The copyright monopoly limits Carol’s rights to sign contracts in her turn regarding her property that she manufactured with her own parts and labor – the DVD with the bitpattern: it limits her ability to sign contracts with David, Erik, Fiona, and Gia regarding this piece of property, should she desire to do so. For example, with the copyright monopoly in place, she cannot even legally execute one of the simplest forms of transaction – a transfer of property. She can’t make additional copies of her own property and sell them, or even give them away without any terms whatsoever.

Thus, the copyright monopoly doesn’t just not follow from the freedoms of contract. The copyright monopoly stands in direct opposition to the freedoms of contract.

Therefore, the monopoly cannot be defended from the perspective of the right to apply any terms to a voluntary sale. The monopoly limits such rights.

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About The Author: Rick Falkvinge

Rick is the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. He has a tech entrepreneur background and loves whisky.

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14

  1. 1

    Don’t forget that liberty is inalienable.

    One cannot sign away one’s liberty in a contract.

    That includes signing away one’s liberty to copy a book.

    One can make ‘copying a book’ a condition of a contract, e.g. “I deposit a security of $5, which will be refunded to me after a year, unless it is discovered during that time that I have made unauthorised copies of this book”.

    It is copyright itself that gives people the idea that we can buy and sell our liberty to make copies. We cannot. The legislature can abridge our liberty, to create privileges, and then we can trade those privileges, but contract is not law. We cannot agree to alienate ourselves from our liberty.

    See http://en.wikipedia.org/wiki/Rights_of_Man#Arguments

    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.

    • 1.1
      Steve B.

      This is an excellent comment that for me goes right to the core of the problem: the copyright industry would make us believe that we ought to follow the current copyright laws and their seller contracts because they are “clearly” legal, while, in fact, those laws and contracts are violating our very constitutional rights. I would, personally, disagree with your opinion that rights are granted by “nature” – for me, they are simply granted (even created) by the constitution – but the effect is, incidentally, the same in many countries of the world and certainly in all “western” countries.

      It is worth repeating: current copyright laws, and the contracts based on them, are violating our constitutional rights. From that standpoint, they need to be changed.

  2. 2
    frank

    What if you gat a DVD as a gift? You didn’t get into any contract, and the buyer didn’t copy anything.

  3. 3
    Merlin

    The time has come. Long overdue. We must begin to actively *WORLDWIDE* to begin our own monopoly of REFUSAL. WE must speak with our money and give them no support. Statistics show that people who share are their biggest customers. We keep feeding them and they turn around and oppress the same that buy from them.
    Let’s DO It! NOW

  4. 4
    rockyshaw

    I do not agree with the author because the DVD copy made by Carol is illegal and hence all the copies thereafter will be illegal, when a movie is sold it carries an FBI warning about the resale and illegal recording of the DVD. This gives Carol knowledge that the copy she is making is illegal and not paid for. According to me Bob is ok because he paid for the dvd and shared with his friend the contract between Alice and Bob is unethical. If Bob or Alice try to sell by makind digital copies that is unethical and bad for the economy and development of culture and should be deemed illegal.

    • 4.1

      Objects cannot, by definition, be illegal. Only acts can be illegal.

      The “hence, all following copies are illegal” does not logically follow.

    • 4.2
      harveyed

      “and bad for the economy and development of culture and should be deemed illegal.”

      Hmm. Nope. You are wrong there. Making of culture thrives more than ever with internet änd free publishing.

      Actually several studies have been done on prestigious american universities – that find that a big bag of money is not the key point in creative works.

      A lot of people do creative works for a living during the days – yet they engage in open source projects in their spare time in the evening. And the stuff that is created is clearly as good and creative as the one which they are contracted to get money from.

  5. 5
    Raybarg

    Keep writing Rick, your work is greatly appreciated and I have come to a conclusive belief that when the era of intellectual dark age of humanity is over, your name is written in history textbooks when taught children in school about that era of humanity. The children will not believe what that era was but they will think you as a remarkable guy.

    Sadly, just like with every great works, the real respect comes after ages.

  6. 6

    Rick, could you be bothered to compile this series somehow? Your site doesn’t seem to have any tagging function that I can browse. I’d like to be able to link people to this set of posts.

  7. 8
    Joska

    While I oppose current copyright laws, I must (mostly) disagree with this article. Becouse the law knows the concept of ‘fence’. You buy a bike, you get the property rights for it. Alice steals your bike, directly infringing your property rights. Then she sells it to Bob, who hides it in his own basement and modifies it (so that you wont recognize it so easily) with his own tools and labour. Then he sells it to Alex. Only Alice offended you directly yet all 3 previously mentioned people are violateing your rights – becouse you still hve the property rights of your bike and they have no rights for it at all. Bob is a fence who knowingly purchased a stolen good to resell it for profit (and it doesn’t give him any right that he did some work on it) and thus he is as guilty or probably even more guilty then Alice. Alex is just a sucker who unknowingly bought a stolen good, but he still violates your property rights non the less and is bound to give your bike back to you when he learns it’s yours (becouse the bike is still yours not his, dispite the fact he payed for it, as he payed for it to someone who didn’t own the bike) – but he’s not guilty in the theft itself like Alice and Bob (becouse he didn’t know it’s stolen when he bought it – but if he knew it was stolen he would be a fence too and guilty).
    This same logic can be used when they lease you a movie (becouse that’s what actually happenes when you buy a DVD, you only get the property rights for the disc but not for it’s contents; for the contents you only get some limited useing rights and the property rights remain by the publisher/author!): you copy the contents of your DVD to Carol even though in your leasing contract you were bound not to do it. Carol knows perfectly that this is the case (becouse it’s pretty obvious) but still accepts the copy. So technically now she is a fence becouse she knowingly acquired an unauthorized copy for wich she has no rights whatsoever becouse she didn’t lease it. When she distributes that copy the case will be the same with the further recivers too and this time they all will be fences and not innocent suckers, becouse they too know that the copy they are getting is unauthorized.

    You can argue that this buisniss model is too strict and should be radically changed. But you argued that it’s against property rights and in opposition to freedom of contract, and thats not true – or at least your arguments failed to prove your statement.

  8. [...] to property rights, being a governmentally-granted private monopoly. We’ve looked at common objections to this observation from those who would attempt to defend the copyright monopoly as legitimate, [...]

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