[free-sklyarov] What I'd like to see: fixing DMCA and IP

Karsten M. Self kmself at ix.netcom.com
Fri Aug 24 11:35:38 PDT 2001

on Thu, Aug 23, 2001 at 07:49:01AM -0700, Stephen R. Savitzky (steve at theStarport.org) wrote:
> I'd like to see it made illegal to sell, distribute, traffic in,
> etc. any file format or software that *prevents* fair use of
> legitimately purchased copyrighted material, that prevents such material
> from reverting to the public domain when its copyright has expired, or
> that restricts in any way the use of public domain material.

I wouldn't.  As noted, this produces serious problems where encryption
is applied.  Would you hold that there are no privacy rights for
encrypted materials, or that there is no time after which those privacy
rights are exhausted?

I'd prefer returning to the situation prior to the passage of the DMCA.
It's possible to apply DRM to media, however, there are no bars on
utilizing first amendment rights (e.g.:  reverse engineering, applied
crypto circ) to practicing Fair Use and other rights.

I've also argued that, should the DMCA continue in force, publishers
have an obligation to provide "best edition" forms of their works on
request that Fair Use rights might be exercised.  One possibility is
that this could be managed through the US Copyright Office, at the
Library of Congress, by revising copyright regulation requirements.  A
requirement that mandated registration for any 1201 claims to be raised,
and required that such registrations be in a non-copy-protected form,
which would then be made generally available to the public through the
library's normal lending practices, would pull most of the teeth out of
the DMCA.  We'd be left with a hollow law whose primary effects are a
criminalization of crypto research, far easier to knock down.

> I'd like to see compulsory mechanical licensing for works distributed
> electronically, at the same rate per copy as works distributed on
> physical media.  [This ought to be extended to compensate performers as
> well as authors.]
>   (For those unfamiliar with the way things work in the music industry,
>   compulsory licensing means that anyone can perform a song, record it,
>   and sell copies: they owe the author and publisher about US$0.065
>   each.  Compensating authors and publishers for electronic distribution
>   has been a solved problem since 1910, when ASCAP was founded.) 

Similar to what I'm suggesting above.

> I'd like to see the term of copyright protection reduced to something
> reasonable, e.g., the same term as a patent.

There's strong economic evidence to suggest that the original terms of
copyright -- 14 years, possible extension -- are about on the money,
give or take ten years.  Which puts us in about patent territory
(currently 20 years from filing, US).

There's little practical market for any materials over 5 years old,
numbers I've seen say 90-95% of all media works sold are newer.  Stephen
Breyer (Supreme Court Justice) wrote an interesting law review article
~1972 titled "The Uneasy Case for Copyright" in which he argues for
doing away with the notion altogether.  Some evidence (the French
Revolution's anarchic era) suggests this isn't the ultimate solution.

Clearly though, life plus 90 years is an utterly unreasonable amount of
time, has no economic basis in present-value terms, and is an
unconcionable distortion of the Constitutional mandate "to authors...for
limited times".

> I'd like to see an international treaty that prohibits any
> juristiction from applying its laws to individuals who are breaking no
> law at their own physical location.  Call it Dmitry's Law.

How about calling it Al Megrahi's Law?  [1]

> Maybe the next step is a "Universal Declaration of [*] Rights"
> comparable to the Universal Declaration of Human Rights.  [*] I don't
> know what word best fills this slot; suggestions will be gratefully
> accepted.  



1.  If that's too obscure, try The Lockerbie Doctrine.

Karsten M. Self <kmself at ix.netcom.com>          http://kmself.home.netcom.com/
 What part of "Gestalt" don't you understand?             There is no K5 cabal
  http://gestalt-system.sourceforge.net/               http://www.kuro5hin.org
   Free Dmitry! Boycott Adobe! Repeal the DMCA!    http://www.freesklyarov.org
Geek for Hire                        http://kmself.home.netcom.com/resume.html
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