[free-sklyarov] Another ebook "processor"

[Jeme A Brelin]

On Thu, 16 Aug 2001, Sonja V. Tideman wrote:
> First of all, the opposition against laws such as the DMCA has nothing
> to do with opposition to copyright in general.

As I think I've said on this list before,

Digital distribution
Effective copyright protection
Free speech

Pick 2.

Without the DMCA, we'd still have corporations encrypting their
copyrighted work and distributing it with all kinds of "license
restrictions" and fighting in civil rather than criminal court to suppress
expression that they perceive to be detrimental to profit.  Those civil
suits and the threat of civil suit would do as much to quell free speech
as an outright ban.

> Copyright is a delicate bargain.  The government creates a temporary
> artificial monopoly on a creative work to allow the creator to gain a
> profit.

This is the propaganda of the copyright industry and an absolute lie.

The public (through their agency, the government) restricts, for a limited
time, the natural rights of the majority to distribute copies or
derivatives of individual expressions of an idea and reserves those rights
exclusively, for that same limited time, for the creator of the work AS
LONG AS THE CREATOR MAKES THE WORK PUBLIC.

Without publication, there is no impetus for the public to restrict its
natural rights to distribute the expression.  Publication means making a
work available to the public in a usable form.  Distribution via license
or distribution of an encrypted version of an expression IS NOT
PUBLICATION.  Unless the public retains ALL RIGHTS NOT EXPLICITLY RESERVED
FOR THE AUTHOR, there is no publication.  If a publisher distributes a
work that is specifically designed to prevent the public's exercise of
their rights, there is no publication.

The Berne Convention was a sort of treaty signed by the United States
(among other nations) that contained ideas eventually expressed in the
United States as a rewrite of the Copyright Act.  In particular, the Berne
Convention requires signatory nations to protect copyright on unpublished
expressions and removes the requirement of publication via registration of
a copyrighted expression with the Library of Congress.  This is directly
opposed to the Congressional mandate set forward in the Constitution to
promote progress and directly opposed to the bargain struck between the
public and authors.  The Berne Convention is another example of an
industry, created by a public trust, using its influence to leverage and
subvert the will and benefit of the public.

The copyright bargain is one in which the public gets to use an expression
and an author gets to ensure that the expression remains true to its
intent.  These rights are reserved for only a limited time because it is
the nature of expressions to evolve and it is to the public benefit and
the progress of all mankind that expressions be allowed to
evolve.  Eventually, it is necessary for the public to be able to digest
and regurgitate the expression in other forms not approved by the
author.

It's important to note, I think, that the Constitution of the United
States carefully states that the mandate of Congress is "to promote the
progress of science and the useful arts" with appropriate legislation of a
form that secures "the exclusive rights of authors and inventors to their
respective writings and discoveries".  Modern copyright is only rarely
used to protect the integrity of a scientific work.  Mostly, copyright is
used to protect those practitioners of the fine arts.  It was wise and
insightful of our forefathers to intentionally neglect the fine arts in
their clause.  It is the nature of fine art to feed upon itself.  Fine art
exists, some would argue, to reflect the culture and encourage other
expression in that reflection.  A mirror can infringe copyright and fine
art is a mirror.  If the fine arts (such as painting, poetry,
non-scientific writing, and sculpture; as opposed to the useful arts, such
as carpentry, smithery, and architecture) are not allowed to feed on each
other in a cannibalistic way, it stagnates and becomes dreary or
debauched.  This is the state of the modern fine arts, in my opinion.  And
this state is perpetuated by and was originally brought into being as the
natural outcome of the extension of copyright to the fine arts.

To promote the progress of science and the useful arts, Authors and
inventors are granted some exclusive rights to THEIR RESPECTIVE writings
and discoveries.  This is very precise language to me.  It says two
things:

To promote science, (scientific) authors are granted exclusive rights to
their writings.

To promote the useful arts, inventors are granted exclusive rights to
their discoveries.

Those are the foundations of copyright and patent.  How far we've strayed!

Authors are not granted exclusive rights to their discoveries... IDEAS
cannot be copyrighted or patented, only particular expressions in writing.

Inventors are not granted exclusive rights to the object, only their
DISCOVERY.  Hence, independent discovery is still a right reserved by the
public.

> In return, the public gets the benefit of using, and eventually
> gaining, that piece of work.

This requires, I hope you see, that the work be presented to the public in
a usable form.  An unusable form means that at least the first part of the
bargain is not fulfilled.

The unreasonably long periods of time in current copyright law mean that
the public that grants these exclusive rights to authors will not be alive
to reap the benefits and so that side of the bargain is not fulfilled
either.

> The key part of copyright, the nasty truth that everyone seems so
> ready to forget, is that it is for the benefit of the public.  It is
> NOT for the benefit of business, or even for the creators.

When you state that copyright is there to allow for profit, you are
implicitly relating copyright to business needs.

Remember that copyright protects the individual pamphleteer as well.  And
he is not writing for the sake of mere profit.

> It, of course, hopes to enable the creators to profit from their work,
> but, if copyright ceases to benefit society as a whole, that the
> constitutional basis of copyright is ruined.

It is merely incidental that profit can be gained through exploitation of
copyrights.  It is, albeit, a happy accident in some cases.

> If the damage to society in the support of copyright is greater than
> the benefit, constitutional copyright is again ruined.

Or if both ends of the bargain are not held up in good faith...

> I personally feel that the DMCA destroys any notion of the balance.  

The Berne Convention destroyed balance.  The Sony Bono Copyright Extension
Act destroyed balance.  The Telecommunications Act of 1996 destroyed
balance.

In fact, ever since the fine arts were incorporated into copyright at the
turn of the last century, the balance has been steadily tilting away from
the public.

> It takes away all concepts of fair use.

Well, the Copyright Extension Act takes away all concepts of "limited
times".  And the Berne Convention took away the concept of public benefit
entirely thirty years ago.

> You may mock fair use, but if society does not have certain guarantees
> as to how they may use a copyrighted work, how has society benefited
> from it?

This is a proper question, but there are several more that are required to
retain any real balance.

If the public never receives their rights back in full, how has society
benefitted?

If the expression is never made available to the public, let alone in a
usable form, why should the public restrict its rights and grant them
exclusively to an author at all?

> The DMCA nullifies copyright limits, and allows the creators
> to control every access, every use.

Actually, the DMCA protects publishers much more than creators or even
copyright holders.

> Add to this the fact that the DMCA takes away our freedom of speech,
> and the harm to society has outweighed the benefit.

Copyright as a whole limits free speech.  It was decided some time ago
that the benefit to the public in voluntarily restricting speech was
greater than the benefit of completely free speech.

I personally disagree (especially in the modern age where publication no
longer requires massive captial investment) and think that the First
Amendment to the Constitution was passed to negate any restrictions to the
press under the Copyright Clause.  The courts disagreed at some point and
that decision has not yet been overturned.

As I like to say, 'What part of "Congress shall make NO LAW" don't you
understand?'

> There is no more balance; there is only corporate greed.

Again, the DMCA is only the final straw... it's not enough to pick off
that one straw when the entire camel is burried and broken.  We need a
pitchfork.

> I also find it slightly comical that you suggest that Russia's
> economic troubles stem from weak copyright laws ignoring every single
> fact and analysis of Russia I have ever seen.  Russia has a lot of
> troubles, and I don't think very many of them can be traced back to
> pirated software.

I've always found it very promising that much of the Eastern world has no
concept of OWNERSHIP of something as ephemeral as information.  This shows
the truth in the argument that copyright is not a natural right, but an
artificial one... and that sharing ideas freely and without restriction is
the natural right that deserves protection.

When "y s" suggested that "pirate software" was the result of a lack of
respect for private property, I spit out my water for fear of choking.  
The equation of the exclusive rights granted in copyright or patent to
real property is absurd and misleading.  It implies that information has
the same restricted usability as a physical object; the same inherent
scarcity.  That is simply not true and never will be.

J.
-- 
   -----------------
     Jeme A Brelin
    jeme at brelin.net
   -----------------
 [cc] counter-copyright
 http://www.openlaw.org