East of Eben

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".

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.