[free-sklyarov] Backlash

Seth David Schoen schoen at loyalty.org
Thu Jul 26 12:22:08 PDT 2001


DeBug writes:

> AD>         I was actually looking for a term for a person who violates the
> AD> Constitutional copyright laws (as opposed to the unconstitutional DMCA).
> What is the difference ?
> Are there really Constitutional copyright laws ? What this term means
> I say you there is NO ANY just copyrights.

The U.S. Constitution says that Congress has power (though not an
obligation) to enact copyright laws.

Some people have argued that the first amendment (which prevents
Congress from making laws "abridging the freedom of speech, or of the
press") subsequently _took away_ that power, so that, after the Bill
of Rights was approved, the Constitution no longer allowed Congress to
enact copyright laws.

I think this argument is reasonable, and all copyright is a restriction
on freedom of speech which might not be accepted today if it were
proposed from scratch.  ("What?  You're going to let corporations _OWN
INFORMATION_?  What are you thinking?")  It's easy to see the amount
of opposition raised by new "intellectual property" laws and new
"protectible subject matter" -- genome patents, business method patents,
"sui generis database rights".

Douglas Hofstadter had a great point in his _Metamagical Themas_ about
the power of tradition.  He made an argument that automobiles would be
disfavored today if they were a new invention and their safety and
environmental risks were well-known -- the number of annual deaths
from automobiles is simply vast and the risks to the average
individual from day-to-day travel grew substantially in most parts of
the world as automobiles were deployed in large numbers.  But because
they are by now traditional, and do provide other benefits, there
isn't overwhelming public sentiment against automobiles.

Since _some kind_ of copyright is very traditional in the U.S. and
there are industries based on it, it's hard to imagine having it go
away altogether.  The argument that copyright is "necessary" for
creative and artistic work is bogus, but obviously the landscape would
be changed dramatically without copyright.

Someone actually tried a lawsuit arguing that all copyright is
unconstitutional.  The Supreme Court's view was that it is not
(although some cases have held that the existence of "fair use" is a
requirement in order for copyright laws not to run afoul of the first
amendment).  As someone with a tendency to first amendment absolutism,
I find it difficult to agree with all the reasoning in these cases.
However, these decisions are well-settled and it doesn't seem that the
Supreme Court will revisit the issues.

What are the biggest harms from copyright today?  It's not that people
have to pay for books and movies!  As long as public libraries are
strong, it's not a big deal that you have to go pay $12 or $20 if you
want your own copy of something.  Yes, certain prices have been
inflated, but the "having to pay for copies" isn't a terrible harm
to the public.

The real harms are the erosion of protections for the public's side of
the copyright bargain -- the attacks on the fair use and first sale
doctrines, for example.  The real harms are when copyright keeps works
out of print, even when somebody wants to buy them (and people like
Eric Eldred are prevented from reprinting them on-line).  The real
harms are when copyright is used to withdraw and suppress a book
(because someone's heirs find it embarrassing).  The real harms are
when copyright is used to prevent criticism and parody -- which
happens all the time, even though the law is supposed to protect
those uses.

The real harms are also where copyright is used as a lever to gain
control in other areas, as where copyright interests try to influence
or control technology.  And again where copyright terms are repeatedly
extended, even retroactively, so that the public domain becomes
impoverished.

All of these things are significant risks which seem to be getting
worse, because some copyright holders have convinced many people,
including themselves, that copyright is a form of property over
information, that certain information really is "their property".
(Seth F.: property in sense of the absolute and unqualified right
to control use and to exclude others, forever.)  Of course,
traditional copyright law doesn't say that; it says that copyright
holders have certain specific enumerated exclusive rights, for a
limited time, and then that's the end of it.  Very different from real
and personal law, where you have _almost_ every possible exclusive
right, forever.

I was really affected by reading Richard M. Stallman's "Re-evaluating
Copyright: The Public Must Prevail" (which is available on the FSF's
web site).  This is a law review article by the founder of the free
software movement.  Stallman argues that, as long as copyrights exist,
_they must exist to serve the public interest_ and not only the
interest of particular copyright holders.  You'd think that would be
common sense, but much debate about copyright proceeds along "how can
we best protect owners?" lines.  It's being forgotten that traditional
copyright in the U.S. was conceived as a (to use my term) public
subsidy to promote creative work; instead, many people think of it as
an inherent right of copyright holders, to which they are
automatically entitled.

I think that changing the terms of the debate will do much more to
mitigate copyright's harms than will eliminating copyright.

> AD> Like people who burn and sell hundreds of CDs (without consent of artists
> AD> and copyright holders) for personal profit.
> So what ? They help the public to satisfy its needs for cheaper price.
> What is wrong with that ?

There is nothing inherently wrong with it; whether the government's law
again it makes it wrong depends on your political philosophy.

I suggested in a letter that copyright infringement is somewhat like
tax evasion:

http://www.loyalty.org/~schoen/copyright-subsidy.txt

If you think evading taxes is wrong, you might also think infringing
copyrights is wrong (because the government has legislated an
obligation for you to pay what the copyright holder demands, in order
to effect a social policy, much the way the government tells you to
pay money in other cases, to be spent to effect other policies).  This
is not to say that people have to think that either of these things is
wrong.

I do think (after Stallman) that infringing copyrights is different
from "stealing", because it doesn't take anything away from the
copyright holder.  But it does say "I don't respect this policy of
compensating people for creative work".

There are a lot of things in modern copyright not to respect, of
course, and as copyright law is expanded over and over again, more and
more people may see it as absurd and irrelevant.  Perhaps if copyright
law were again more "reasonable", more people would feel guilty about
violating it.

> AD>         I didn't mean people who were making personal copies for fair use,
> AD> or watching DVDs they own on "non-sanctioned" players.  This kind of
> AD> behavior is supposed to be protected by US law.
> YOu cant just state the right to use is fare one and
> the right to compete is unfare. These rights go together.

There is some legal background for the distinction in the U.S.  It's
true that the logical difference is not necessarily very profound, so
it's really a matter of legal history.

> AD>         We have to be careful to inform people that we AREN'T AGAINST
> AD> COPYRIGHTS.  We are for the repeal of certain draconian laws overprotecting
> AD> them.  
> That is exactly what i am talking about - I am against ALL COPYRIGHTS
> because any copyright can cause conflict.

So my point for the Free Sklyarov movement is that -- because most
people are not against copyrights, and many respected copyright
supporters, like Brad Templeton, have been doing crucial work here --
it's not _necessary_ to oppose copyright to see why Sklyarov should be
free.  And most people in the movement probably support copyright.

Lawyers in court normally argue the most relevant and least
objectionable theories which will support their clients.  So for
example a lawyer defending Sklyarov might say "17 USC 1201 is
unconstitutional as applied to Sklyarov" rather than "17 USC is
unconstitutional in its entirety on its face".  There is sure a
criminal defense lawyer somewhere in the United States who believes
that, but a court is not going to be very impressed by the broad
claim.

I think the same situation sometimes applies to building movements.
In order to have a united, powerful movement, it's good to focus on
the things with which everyone can agree.  In this movement, that's
probably something like "the DMCA is unjust" and "it was wrong to
arrest Sklyarov", not something like "all copyright laws are unjust".

It's then a tactical question whether you want to make connections
with other movements, to try to get people to see a bigger picture as
you see it.  This might alienate some people.  (For example, a few
people proposed getting in touch with the U.S. National Rifle
Association, which defends the legal right to own guns, and trying to
convince them that, if AEBPR is like a weapon, they should support it.
I think this argument is weak for other reasons, but another point is
that the NRA has an agenda which could alienate some people.)

It's difficult to determine how to choose a focus: different people
see a particular case as part of _different_ big pictures, and if they
want to work together, they will have some conflicts because of that.
I've had trouble appreciating this point in the past, and I think that
getting a better understanding of it is important for me and other
maturing activists.

But in a very broad campaign aimed at a particular goal -- like
freeing Dmitry Sklyarov -- you can often get broader support if you
keep your arguments as narrow and as close to the particular issue as
you're comfortable with.  And that's a point of tactics, not ethics.

-- 
Seth David Schoen <schoen at loyalty.org> | Its really terrible when FBI arrested
Temp.  http://www.loyalty.org/~schoen/ | hacker, who visited USA with peacefull
down:  http://www.loyalty.org/   (CAF) | mission -- to share his knowledge with
     http://www.freesklyarov.org/      | american nation.  (Ilya V. Vasilyev)




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