Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.

Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of course we are hungry for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded, you can consider yourself subject to a Creative Commons Attribution License.


How to extract money for using copyrighted performances

The New York Times Sunday Magazine ran a long article on enforcing fees for playing copyrighted music as background for bars and other establishments link here. As is so often the case, nothing in the article suggests that doing so is controversial. No reference is made to the constitution's basis for copyright, much less its reason, promoting innovation. Instead it notes only that copyright was amended in 1909 providing for "performance rights" and that the change was blessed by the Supreme Court, quoting Oliver Wendall Holmes, "If music did not pay, it would be given up. Whether it pays or not, the purpose of employing it is profit and that is enough."

The article goes on to quote Larry Lessig with the only dissenting view, and even that is equivocal: "If technology creates efficient ways to charge commercial users of copyright, then that's good, but what I fear is that we evolve into a permission culture, where every single use of music creates an obligation to pay. I wish the line could be as clear as commercial exploitation--you're running a dance club, using it in a movie. The author ought to have the right to be paid for that. But I don't think that that right should translate into the right to control whether my kid uses the music for a collage he makes for a class about his trip to Costa Rica."

The article also fails to note that there has been criticism of how the royalty administering organizations distribute the money and account for what they do, as is clear from the Wikipedia article on ASCAP link here. Instead it is an account of how one of BMI's enforcer's is really very nice and works hard to deal pleasantly but firmly with the poor bar owners and other small businesspeople that use music to attract customers.

To me this simply looks like a lot more lawyers and others with little or nothing to do with the original performance who have found another way to extract money for themselves with no increase in the public good. We are looking at the modern version of the highwayman and asked to admire him.


There was no Constitutional basis for copyright. Madison et al wanted it legislated, and so it was. The Constitution's clause empowering Congress to secure the author's natural right is only INFERRED as sanction for granting a monopoly in literary works.

Lessig fails to exhibit any understanding that CULTURE IS EXCHANGE, that exchange is commerce, that culture is naturally commercial, so the last fricking thing you should try to do is to prohibit commerce on the pretext of encouraging cultural exchange.

The idea that unpaid cultural exchange is good, but if artists dare to get paid for their labour without coughing up dues to the respective protection racket they should be prosecuted, is anathema to the very thing we supposedly aspire to - a market in which artists are free to exchange their labour.

Then again, perhaps the objective remains to contrive a means for the privileged copyright holders to be paid...

Follow the money.


Madison et al. did want copyright to be legislated; but the reason it had to be legislated is that copyright was never part of the common law. IOW, if there had been no copyright legislation at the state level, there would have been no effective copyright law to be enforced. Noah Webster was a key player in getting the states to pass copyright legislation.

Bill, I'm just saying that the Constitution provided no actual basis for copyright's legislation - it did not empower Congress to grant monopolies in literary works.

That those who desired copyright may have had many allegedly good reasons to legislate it is independent of my point.

I may be a bit naive in asking this question, but is what Madison thought really relevant to the question of whether or not copyright is a good idea?

And if it's a bad idea, we should abolish it, even if Madison thought differently.

Nope, not relevant.

Yep, it was a bad idea for the cultural liberty of the American people and should be abolished as soon as possible - preferably before it becomes extremely nasty (some day soon).

What, you mean it hasn't done that already? :P
Suzzle, at the moment it's just very nasty. After ACTA harmonises draconian measures around the world (so there's no escape) and enforcement kicks in you will see what 'extremely nasty' means.

The Network Neutrality aka IP censorship (IP as in both TCP & ©) movement is also doing its bit to bring the Internet under state control at the lower levels (ACTA addressing higher levels).

Softly softly catchee monkey - and the monkey is the slumbering populace.

This site will soon be censored by all ACTA signatories as containing material intended to foment domestic extremism and liable to induce disrespect for intellectual property.

I found Mike Masnick's piece today informative on the history of copyright link here. He sends us to his inspiration link here.

I also went back to the Constitution, Art 1, Sec. 8 which says "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;"

And your point is, John?

What about that clause makes you think it has anything to do with Queen Anne's statute of 1709 that the US plagiarised and enacted in 1790?

Certainly, many repeatedly consolidate the myth that the progress clause empowered Congress to grant monopolies in literary works, but that doesn't mean it did (qv argumentum ad populum).

Crosbie: I have delayed answering, thinking someone else might want to weigh in. I quote the constitution because it is the supreme law and overrides Congressional and State enactments and international treaties. The IP we have now is an abortion built on avarice and monopoly. But in theory we can get rid of it. Otherwise why bother studying and writing about it? We have a huge educational problem. I myself am an object of that education--I always accepted the popular view of IP law until I started looking into it. I owe a lot of you a debt of gratitude for setting me what I now think of as straight.
John, everyone's interpretation of the progress clause is distorted by the surreptitious change in language that has been contrived to name copyright as 'exclusive right' (from privilege/monopoly/legally granted right to exclude others), when this usage of 'exclusive right' was unfamiliar to the likes of the Framers and Founding Fathers such as Thomas Paine (they hadn't grown up with this modern corruption of 'right' from privilege). It is only when we look back in time to the Constitution that we so easily mistake our context for theirs, and yet they had only the individual's (natural) rights to be secured, not the privileges that only in our inverted context already exist. I find it stunning that people can so readily assume that the Constitution intended Congress to secure a monopoly that hadn't yet been granted.

The Constitution does not empower Congress to grant any privileges EXCEPT as military sanctions, during war, against the enemy. I don't know why people are so ready to believe it would empower Congress to grant privileges for a man to use for his own enrichment, in peacetime, against his fellows, and to sell to legally created entities for their exploitation. If it was the Framer's intention to give Congress power to grant monopolies they were very familiar with 'monopolies in literary works' (they didn't call them 'exclusive rights') and would have had no difficulty expressing this (not that the Constitution wouldn't be rendered corrupt by this).

Anyway, it is important that we discuss these things. And that is why I will cease visiting this site if comments are closed down, even just by such as Justin Levine. I wished to comment on his post today, but he appears to have disabled commenting on all his posts.

There is a forest near where I live and a recently erected notice explains that the car park has been closed indefinitely due to graffiti. People (including vandals) can still park on the roadside (as we now do), but I get the impression that the withdrawal of vehicular access to the convenient car park is somehow to act as a punishment. I find the logic on the deficient side. Perhaps game theory experts among the authors of this site can explain it to me?

The New York Times Magazine followed up on its earlier piece about The Copyright Enforcers with four letters from readers link here. Several interesting points are made.

One asserts that The Fairness in Music Licensing Act exempts the smallest enterprises which use recorded music to entertain their customers. However, they have to be very small anmd quite restricted in their uses.

Another, "Musicians, of course, are not paid any of the performance royalties collected by BMI or Ascap (unless they are doubling as songwriters or publishers)." That seems doubtful, although both have been accused in the past of being very slow to account for what they collect or paying, so perhaps the statement is factually correct.

A third criticizes copyright as ever changing and comes up with a Mark Twain quote: "Only one thing is impossible for God to find any sense in any copyright law on this planet." Amen.

I'd post this at


but for some reason that page loads truncated for me, right after the words "Submit Comment", which kinda makes that difficult.

So while you're looking into things on your web server to try to fix the page-truncation issue, I guess I'll just post this here instead since it's gotten the most recent views and attention.

How is it that a movie from 1968 is in the public domain? I thought pretty much nothing since 1920 was public domain except for federal government work product (NASA images, most famously).


There are tons of works in the public domain that date up to 1989. If you want some rules try copying and pasting this address...


Sadly, most of the public domain stuff gets virtually no restoration effort. It gets copied endlessly, but looks like it did on film. I keep hoping someone will clean up and release the entire "Sea Hunt" series. I would pay for a clean copy of the series! But, no takers as yet. Just not enough audience for a show that is now considered obscure.

Also, anything prepared by empolyees of the U.S. Government as part of official duties is in the public domain, except when classified, of course.

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