| |
| META TOPICPARENT | name="FirstEssay" |
|---|
| |
<
< | East of Eben | >
> |
East of Eben (First essay - first draft)
By UriHacohen - 23 Nov 2014 | | | 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). | | |
\ No newline at end of file | |
>
> |
Shifting to attribution (First essay - second draft)
By UriHacohen - 23 Nov 2014
Introduction
We talked in class about the injustice of maintaining all of human intellectual resources in private rich hands away from the lion’s share of the population, and about the restrictions propertarian models impose on the process of creation. I believe that when addressing these issues, we should not yet rush to abolish property based regime altogether. Maybe, it is enough to condemn the utilitarian approach, while preserving the moral rights rationalization for copyrights legislation. Perhaps we can "promote the progress of [..] useful arts" by preserving moral rights of the creator, while eliminating his economic rights.
In this essay I will argue that open access movements, such as the Free Software movement and Creative Commons organization, are currently forging a shift in the mainstream discourse, when injecting moral values into the utilitarian based debate. This argument is not equally applicable to both movements, so I will address them separately.
Creative Commons
The Creative Commons model offers the creator to redesign the statutory bundle of property rights offered by the copyright act. The Creative Commons licenses enable the creator to choose how many of the exclusive property rights given he or she is willing to “sacrifice” for the purpose of enhancing the public domain. I will attempt to look at these licenses as a scale in which creators express their will to wave economic rights while preserving some or all of their moral rights.
At the first level (licenses CC-BY(/NC)-ND) creators are willing to give up their exclusive right to use the work, run it, study it, copy it and share it with others, while preserving the rest of the exclusive rights given by the law. Creators are giving up only economic rights, meaning the right for monetary compensation for the distribution of their work.
In the second level (licenses CC-BY-NC-(/SA)), creators are giving up, in addition to the rights stated above, the exclusive right for the modification of the creation and the right to make derivative works. Here, creators are continuing to forfeit economic rights, meaning monetary compensation for the right to modify. But, creators are also putting at risk their moral right of integrity, the right to bar intentional distortion of the work.
At the third level (license CC BY-(/SA)), creators are giving up all of their economic rights, some of their moral rights but still holding to the most primal and precious moral right available, the right for attribution. Being the last right on the scale, the right of attribution is present in all Creative Commons licenses. I believe that the Creative Commons model, offers an alternative property rights regime that celebrates creators moral rights as opposed to their economic rights. This is a radical notion having the fact that the United Starts doesn’t have any legislative protection over moral rights at the federal level, accept with regard to visual arts. Moreover, Creative Commons gives a stronger right for attribution than what is usually offered in countries that respects moral rights, since the license offers the creator the option to choose the form of attribution.
Free Software
Viewing Free Software movement as advocating for the promotion of a legal regime based on the preservation of moral rights is far from being straightforward. First, there is no scale here, but freedoms. It seems that there is a fundamental distinction at the core level between the rational governing moral rights and Free Software.
First, moral rights are focused in the creator intrinsic right in his creation where the Free Software community focuses on the public, and the need for open access. Second, it may be argued that while the main interest of the Creative Commons organization is distribution, the main concern of the Free Software community is modification and re-creation. This interest may be inferred from the fact that most of the Free Software Freedoms (1-3) deal with the rights to modify and to share the modified work. Moreover, this the reason for primordial need for the source code to be available. Even if moral rights are not part of the Free Software community’s agenda, it is still possible to find moral rights in Free Software licenses. For example, the right for attribution is there, whether governed by the communal rationalization of attributing modifications to the right programmer, or by the intrinsic right of the modifying programmer himself. The right for discloser is available (Freedom 2) and even the right for integrity, at least in the philosophical sense, by preserving distortion of the source code by failing into propertarian hands (Share Alike).
Conclusion
Along side the declared objective of movements like the Free Software foundation and Creative Commons organization to promote free access and distribution, there is, in my belief, another objective of promoting moral rights. I think that this introduction of moral justification to the utilitarian based discourse in the United State is a valuable trend. I can only hope that with time, and proper education, creators will be more and more dependent on free goods and thus will be obliged legally (Share Alike) and/or morally to contribute their creations into the commons, while preserving the right for attribution. |
|