East of Eben

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, study it, copy it and share it with others. Using the Free-Software definition, these rights should be addressed as Freedom 0-2. 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). 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) 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 1-2? 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, 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 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".