Rick Falkvinge || 2/13/2013 || Falkvinge.net
Five erroneous assertions have kept appearing in the public debate since 1990 about file-sharing vs. the copyright monopoly. These assertions have persisted for 25 years, despite being obviously false. This is a reference article to link to and point at whenever one of them pops up the next time.
It can seem disheartening that factually false – as in 180-degrees wrong, just-read-the-text wrong – arguments persist for a quarter of a century, but there is a lot of money in perpetuating these untruths. If you have fallen for one of these, you are not alone; the first step to understanding the criticism against the copyright monopoly is understanding what it is.
Therefore, as we uncover these misconceptions, we also learn what kind of legal mechanism the copyright monopoly is. (United States law will serve as an example for this article. Legislation is similar elsewhere.)
1. The copyright monopoly is just that: a monopoly.
The first fact is that the copyright monopoly is not property, but a monopoly. Normally, we hate monopolies and other forms of cartels. We raid their asses at dawn and haul them off to court for price-fixing. Property rights, on the other hand, are the basis for the entire economy. No wonder you try to put everything you do in the “property” camp rather than the “monopoly” camp.
We can observe how the copyright monopoly is enabled in the U.S. Constitution, article 1, section 8, which speaks of giving Congress the right to give authors and inventors an “exclusive right” – a legal term we would call “a monopoly” in everyday language. You can also hear this language between copyright monopoly lawyers – they don’t say “we own”, only PR people and lobbyists use that deceptive and erroneous language. Copyright monopoly lawyers are precise in their language. They say “we hold the exclusive rights”.
US Constitution: The Congress shall have the 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.
(Some people protest this observation by claiming that property rights, too, are exclusive rights, and so this passage could just as well refer to property rights. That’s deceptive and not true, confirmed by the trivial observation that the US Constitution writes property when it means property, such as in the fifth amendment.)
The United States Constitution will have to serve as an example here. Other constitutions are similar.
Another obvious point to make here is that if the copyright monopoly were property, then the copyright monopoly laws would not have been needed in the first place, as property laws would suffice. But the copyright monopoly laws are on the books, and therefore obviously not dealing with property.
The copyright monopoly is actually four different conceptual monopolies. It is commercial monopolies on duplication and public performance, and it is so-called moral rights to be associated with one’s work and to have the right of veto against conceptual violations of it. These are four quite different mechanisms.
You can help spread understanding of the fact that the copyright monopoly is a monopoly by consistently saying “the copyright monopoly”, just like we do here and others do too.
But copyright monopolists keep asserting the copyright monopoly is a form of property, so are they wrong? More than that. The copyright industry tries to whitewash their monopolies by calling them “property” whenever they can, in order to make their monopolies sound more palatable and justified – but using propagandistic words doesn’t change reality. In particular, this applies for the oft-peddled whitewashing term “intellectual property”, which you should never use except for like I do here, to tell people why it is completely wrong – for what it refers to is neither intellectual nor property. At best, it is industrial-era protectionism. (Just because you call a dogshit “lovely-smelling flower” through intense lobbying, that doesn’t make it smell good or actually be a flower. Don’t parrot lobbyist language.)
The copyright monopoly is a governmentally-sanctioned private monopoly that interferes with and limits property rights.
2. Infringements of this duplication monopoly is not theft.
This leads us to the second misconception: Infringements of the copyright monopoly is not theft. Neither factually, nor legally, nor from any conceivable philosophical angle. This is easily observed by seeing that if an infringement were theft, we wouldn’t need the copyright monopoly laws in the first place – ordinary property law would suffice.
Under Swedish law, there are even more nuances that reinforce this trivial observation. The Swedish word for infringement of the monopoly is intrång, and it is the same legal term as for trespassing on somebody’s lawn without their permission – and the same legal severity. (If you take an apple while on the lawn and eat it, it becomes theft. If you also take an unlocked bike, use it to get downtown, and leave it there, there’s a middle term – tillgrepp.) So the legal term for infringement is at least two steps away in seriousness from theft – if the comparison can even be made, as it’s conceptually different.
Something given or shared of free will cannot be described as theft in any philosophy, and somebody else is sharing their copy with you of their free will in a typical file-sharing process as you are manufacturing your own copy. It is, however, infringing a governmentally-sanctioned duplication monopoly, which is a completely different beast than property rights.
3. Copying something outside the monopoly channels is not “taking without paying”. It is manufacturing.
The third misconception is that violating the copyright monopoly is just like “walking into a store and taking things without paying”. This argument, which is wrong on every possible level, is inexplicably still heard 25 years after the public debate started.
Making copies isn’t taking anything in the first place. You are not taking anything without paying, you are manufacturing something without paying the monopoly holder. This is completely different conceptually and morally.
When you are making a copy of media that is under the copyright monopoly, you are not taking property from anybody else. You are using your own property – your computer and gadgets, presumably – to manufacture a copy of a file. That’s not “taking” anything. That’s manufacturing something using your own time and resources. Those are two completely different concepts.
You are not taking something without paying. You are manufacturing something without paying protection money to a monopoly holder, which sounds much less wrong than “taking” things. When using proper language, it becomes all the clearer how this monopoly is in all the trouble it should be in.
4. When buying a book or a DVD, it becomes your property in full.
I have seen some people argue that when you buy a book or DVD, you don’t actually own it; that you would somehow pay money to license a set of rights that include the right to sit down and enjoy its entertainment, but would not include the right to copy it. This is factually and legally wrong. When you buy media, you buy the whole media. It becomes your property in full, including everything encoded onto it.
So if it’s your property, why can’t you copy it freely? That’s because another law – the copyright monopoly – steps in and explicitly takes away those rights from you in regards to your own property. Specifically, the U.S. law (which will have to serve as example again) lists six specific actions that people may not take on their own property, but that are reserved for the holder of the copyright monopoly:
USC Section 17, chapter 1, para 106:
[The copyright monopoly holder…] under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Very, very clear. Six specific actions in the law that are reserved for the holder of the copyright monopoly, regardless of whose property it is.
But we observe here, going back to the original erroneous assertion, that if you were only sold a limited set of rights that did not include copying when buying a book or a DVD, the above piece of law would be wholly unnecessary. It wouldn’t make sense at all. Therefore, the conclusion is trivial that the assertion is wrong to begin with.
When you buy a book, a DVD, or something similar, you obtain full property rights to it, including the right to produce as many copies as you wish in any way you like. But then, another law steps in – the law text quoted above – and takes away those six rights from you, the property owner.
This is an important distinction, as these are rights that are perfectly normal for property, and the copyright monopoly creates an exception to your normal property rights.
5. The copyright monopoly is a limitation of property rights.
Misconception number five goes back to the original point of the copyright monopoly being described as “property”. After point four, we observe that the copyright monopoly is a limitation of property rights. This is a point important enough in itself to list as a fifth misconception: property rights and the copyright monopoly don’t and can’t coexist peacefully. The copyright monopoly actively limits property rights.
Thus, if you take your stance in the safeguarding and upholding of property rights, you cannot defend the copyright monopoly and its limitation of said property rights. That’s like defending death penalty for murder with the justification that all life is sacred. There may be other justifications – but that particular piece of logic just doesn’t connect.