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Education Your Rights Online

Copyright as Cudgel 304

Posted by michael from the which-no-man-can-own,-but-only-rent dept.
kongstad writes "In an issue of The Chronicle of Higher Education, Siva Vaidhyanathan has some interesting things to say about the concept of Copyright: 'Back in the 20th century, if someone had accused you of copyright infringement, you enjoyed that quaint and now seemingly archaic guarantee of due process. Today, due process is a lot harder to pursue, and the burden of proof increasingly is on those accused of copyright infringement.'" A very good academic look at the recent expansions of copyright law.
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Copyright as Cudgel More

Copyright as Cudgel

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  • Tell me something I don't know. (Score:3, Insightful)

    by Teknogeek ( 542311 ) <technogeekNO@SPAMgmail.com> on Wednesday July 31, 2002 @04:23PM (#3988677) Journal
    So, the DMCA is, instead of being used to stop illegal hackers, being used by corporations as a tool to stop anyone from criticizing them, finding flaws in their products, or acting as though they aren't the unquestioned lords and masters of all they survey?

    Maybe I'm just cynical, but this isn't really a surprise to me.
    • "Geeks' Day Off!"(TM)
      One day a year (I like March 14.. 3/14 Get it?) when all whose smarts drive the engines of industry show these bastards who's boss by staying home, turning off the phones, pagers, everything.
      Let 'em stew in the hell they hath created for 24 hrs. Maybe they'll think for once. You can't legislate intelligence into existence. We'd have 'em by the balls. We control supply.
      Oh, and also forever refuse to prepare contingency plans for the event after the resounding success of the first one.
      Sorta like Mayday. With teeth!
      It's time, people!

  • Trivia. (Score:5, Interesting)

    by Crusty Oldman ( 249835 ) on Wednesday July 31, 2002 @04:28PM (#3988702)
    Did you know that the man that authored the copyright clause in the U.S. Constitution was the same man who started this nation's first free book lending library?

    Any lights going on out there?

    • I thought that Ben Franklin, not James Madison, started the first US free lending library.

  • Its too bad really... (Score:5, Interesting)

    by Critical_ ( 25211 ) on Wednesday July 31, 2002 @04:28PM (#3988703) Homepage
    The fact of the matter is that our government has been looking for excuses to curtail the freedoms we enjoy for a long time. Why? Well, if its news to you, most politicians make a career out of staying in office. This was something the forefathers never imagined. The constant desire to win the elections leads these politicians to ask for money and the big corporations pony up and cough up the dough. What happens then? Well, poor people like me who can't afford to shell out cash to my congressman gets left out of the political process. Sure, I can vote but if my viewpoints don't come with a dollar figure then they are meaningless. The DMCA is the brain-child of this process we call "democracy" (we should rename it to "big-corp'ocracy").

    So why aren't most people doing anything about it? Since they don't know what is going on. The local 10 o'clock news doesn't carry this stuff. Do you want to take a stab at why? Well, most local tv news stations are owned by big corporation and they cannot afford to criticize the DMCA since they can weild it around so freely. Articles like this are good, but what slashdotters don't understand is that there needs to be a concerted effort to write editorials in the papers constantly to make sure that the rest of America sees this for what it is.
    • It's quite simple--remove government-imposed controls, artificial costs, subsidies, and regulations on businesses. When government is no longer allowed to regulate or subsidize business, businesses will realize it's no longer possible or necessary to buy politicians in order to obtain special favors or exemptions from proposed legislation.

      • Re:How to take care of the situation you describe (Score:3, Insightful)

        by Anonymous Coward
        Sigh. Do you want to live in a country where businesses are allowed to pollute whatever they feel like, lie to the consumer whenever they want, fail to honor warranties (those silly government-imposed rules enforcing contract laws...). While we're at it, why don't we remove government-imposed controls such as real-estate ownership, accounting laws (yes, I know the current ones are full of holes, but they're better than no such controls), intellectual property (these do serve a purpose) and maybe even the requirement that food be fit to eat. Also, let's let anyone use any radio frequency they like. That way I can buy a bigger antenna than the local TV station and broadcast my own stuff over it.

        All of the above are "government-imposed controls". I'm sure you think that some of them are wrong, but, really, are they all wrong? Aren't we better off with some controls?

        My personal take on taking care of the situation described is to make it illegal for any business to contribute a politician. Individuals, sure, but why should businesses be allowed to contribute?

        • make it illegal for any business to contribute a politician
          I'll go one better, from Article 1, section 2 of the US Constitution:
          The Number of Representatives shall not exceed one for every thirty Thousand ~.
          How about we require one representative for every 30k citizens? With the current population [census.gov] at 287,667,120, this gives us 9,588 representatives! Good luck trying to buy them off. The bonus with this plan is that it satisfies the original intent of the Framers: congress is supposed to do very little and take forever to get it done, so they won't mess things up.
          • Odd way of looking at it. I had always figured that more reps was worse than few since, as you point out, they'd end up dickering forever over the slightest thing. It never even occured to me that once the costs of having a government start outweighing the benefits, that inability to make a simple decision might become a Good Thing.

            Ah well, there'd still be lots of Congresscritters who'd follow the carrot right off the cliff. And it'd work both ways; how difficult would it be to get existing bad laws off the books?

            • You're right about the trouble of getting the bad laws off the books, but imagine getting 4,500+ Congresscritters to all agree that the US Patriot act, the DCMA, the Sonny Bono Copyright extention act, and anything Fritz Hollings proposes are all good and need to go through?

              Not bloody likely...and that's the point!

      • No businesses would accept the removal of any number of laws, the most obvious ones being bankruptcy and incorporation laws.

      • Re:How to take care of the situation you describe (Score:5, Insightful)

        by martyn s ( 444964 ) on Wednesday July 31, 2002 @05:44PM (#3989051)
        Oh, I see. So in order to make sure that they don't bribe politicians in order to get their way, we do it their way FOR FREE?? It's a nice libertarian principle, and I used to feel that way, but it just doesn't work. The point of the government is to protect the rights of it's citizens. Why should businesses be the only ones exempt from laws?

        Once upon a time there was a man named Adam Smith. His thesis was that "men working to fulfill their own selfish desires will lead to benefitting society". I guess that's roughly true, but it seems he never heard of game theory.

        Ok, picture this game: There are four people, each with a 100 dollars, and they're playing a game. The game is sponsored by someone. Here are the rules. Each person can put however much money they want towards the pot. Each round the pot is doubled by the sponsor and split amongst them. So if they all put in 20, they end up with 80, doubled equals 160, and split by 4 is 40. So they each end up with double they put in. Now imagine that 3 people put in 20 but the fourth person puts nothing. So the total in the pot is 60, which when doubled is 120, and divided by 4 is 30. So each of them make 10 dollars profit, except for the person who put in nothing, who made 30 dollars profit.

        So what happens when they tried this in real life? Well in the first round they all put in about half their money. But each round they put in succesively less and less until by the last round, they've all learned their lesson, and put in nothing.

        So imagine further, a new rule. Anyone can pay 3 dollars to take away 10 dollars from someone else. So now if the fourth one puts in nothing, the three others pay 3 dollars each and take away all 30 dollars that he won, ending up with a profit of zero, but they each won 7 dollars profit. So this new rule totally changed the nature of the game, and actually, paradoxically, made it easier to trust each other.

        You know what happened in this game? It started out the same...they each bet half of what they had. But each round after that, the slowly bet more and more, till the last round when they all bet the whole pot, and really made a ton of money.

        So what's the lesson here? Changing the rules a little bit can help everybody. That's the governments job. Just because the government is forcing a business to do something doesn't mean they don't want to do it. It might just mean that they want to do it, but they want to make sure the others have to do it too.

        Like software patents. Getting rid of them would definitely help the software industry, but they still hoarde them and prosecute them because they get the same treatment from the others.

        I know, you're a libertarian, so you likely agree with me about software patents, but government is not bad. The US government is bad, they never do anything right, it's shameful. But that shouldn't turn you off to the idea of government. I think you'd agree that certain 'public' things are best taken care of by non-commercial entities. Schools. Libraries. Roads. Public transport.

        Let's look at public transport. Even though the city usually does not recoup money from bus and train fares, it doesn't matter. The city doesn't recoup money for laying and maintaining roads either. Almost anything with very low scarcity, but a high fixed cost should be publicly funded, because it's the most efficient system. If you charge excessively, less people use it, and since there's no scarcity (no marginal cost) the less people who use it, the higher the cost PER use, and hence the lower efficiency.

        "Government" is not inherently bad, you really should consider that possibility.
        • I have no problem with reasonable, responsible government - a government that is truly by the people and for the people. It corrupt government that I can't stand, and there's plenty of corruption to go around in the U.S. - from so-called bribed disguised as "campaign contributions" to loan guarantees, in which the only real guarantee is that the taxpayers will be left holding the bag, while monied scum makes off with a bag of loot.

          The recent passage of the corporate responsibility act is a good thing, but it's only the beginning. It's time to start cleaning house by getting rid of congressional "representatives" that show nothing but contempt toward the notion of fiscal responsibility.
      • *ROFL*

        Ooooo. 'Quite simple really' ;)

        Let me give you a free hint- remove the subsidies FIRST.

        Otherwise, you'll remove the controls and regulations and the corporations will immediately use that new freedom to grab much bigger corporate welfare, have legislation passed to make not using their crap punishable by fines and imprisonment, and will top it off by privatizing some government functions like law enforcement and the penal system :)

        And on the guard towers will be written, Verbrauchen Macht Frei ;)

  • Let's Get Back Our Access to the Courts (Score:5, Interesting)

    by malibucreek ( 253318 ) on Wednesday July 31, 2002 @04:34PM (#3988727) Homepage
    America's system of government is supposed to work on checks and balances. When the executive issues a hair-brained order, or when Congress passes an unconscionable law, people are supposed to have access to the courts to get those rules overturned.

    But for the past 20 years, the right-wing in America, funded by their deep pocketed friends in Big Business(TM), have mounted a legal, political and social assault against individuals' right to sue. Sometimes they use the moniker "tort reform." Othertimes, they talk about "greedy lawyers" and "runaway lawsuits" that inevitably hurt those poor, small business owners out there that can't afford to defend themselves against the tassel loafer set.

    In the real world, it is the small business owner, the independent contrator, the worker and the consumer that gets screwed. When Big Business(TM) infringes upon on traditional rights, we are the ones who need the courts to come to our aid, to make up for the unfair advantage that wealthy campaign-contributing businesses enjoy in the Legislature and with th executive.

    In this case, the minions of Big Business(TM) have enacted a law that places the burder of proof on the accused, rather than the accuser. Which perverts the system of checks and balances, and instead turns the full weight of all three branches of government against the little guy.

    We are almost all in favor of gutting the DMCA on this site. But let's not forget this broader issue the next time some slick Republican starts carrying on about the need for tort reform, judicial appointments and restrictions on lawsuits.

    When Big Business(TM) owns the Congress and the White House, the courts are our only hope don't let them take that away from us, too.

    • "America's system of government is supposed to work on checks and balances."

      Yes, it (the federal government) does work on checks and balances within itself, but the framers of our constitution didn't see that these huge corporations would have the power via money they now have.

      The framers also didn't anticipate institutionalized graft as a political way of life. They thought those running for office would be like them; educated, landed gentlemen with enough self-interest not to sell out their country, its ideals and its future for chump change just to get re-elected every time until they dropped dead.

      Face the music: we're seeing a serious push by big corporations to make an end run around our freedoms so that Disney can keep making money from Mickey Mouse forever. The restrictions on the federal government do not apply to corporations. So what you say? Think which has more impact on your daily life.

      Stephenson wasn't just joking when he painted in Snowcrash a society where the federal government was still functional, just irrelevant in the face of the huge corporations. I really hope we don't go there.

    • Nowdays, legislators only care about the checks... or the unmarked bills...
    • >Sometimes they use the moniker "tort reform." >Othertimes, they talk about "greedy lawyers" >and "runaway lawsuits" that inevitably hurt

      I guess you haven't heard about the fat guy suing McDonalds's for making him fat. :)

      Brian Ellenberger

  • Cudgel...tool...same idea, different slant (Score:5, Interesting)

    by jvmatthe ( 116058 ) on Wednesday July 31, 2002 @04:35PM (#3988729) Homepage
    Don't forget that the GPL [gnu.org] uses copyright as a tool. I believe that Eben Moglen has said that it is precisely this power that makes the GPL as successful as it has been so far. If it weren't for the power of copyright, then the protection from exploitation that much free software enjoys might not be so strong.

    So while I think the title of the blurb here on /. gives some sort of negative slant to copyright using the word "cudgel", I am grateful for the power that it has given to free software, when used as a positive force.

    Of course, there are many people that dislike the GPL, and so might feel that the word "cudgel" is appropriate. :^)

    • Don't forget that the GPL [gnu.org] uses copyright as a tool. I believe that Eben Moglen has said that it is precisely this power that makes the GPL as successful as it has been so far. If it weren't for the power of copyright, then the protection from exploitation that much free software enjoys might not be so strong.

      I don't think that cudgel is metaphorically appropriate in the case of the GPL. This article is about strengthening of copyrights being used to take away traditional rights. The GPL grants more rights than what a default copyright would grant you! Yes, it is the strenght of copyright that makes it different from public domain. But when you get right down to it, the GPL is less restrictive than just publishing something with a copyright notice and no further licence. That doesn't sound to me like using copyright as a cudgel....

      -Rob

    • So while I think the title of the blurb here on /. gives some sort of negative slant to copyright using the word "cudgel", I am grateful for the power that it has given to free software, when used as a positive force.

      "Copyright law is the well spring from which the GPL flows. Without copyright law, the GPL would never have been." - Thulsa Doom

      I would agrue that without copyright law we wouldn't NEED the GPL since content holders wouldn't have exclusive rights on thier 'property'. Which is not to say that copyrights are all bad, but it is an outdated concept that at least needs to be brought up to date with current changes in how content is created and distrubted in the digial age. Just because the GPL is good doesn't mean that copyrights are good.

    • shield ... cudgel ... both tools, different idea.

      the article in no way attacks copyright - it even lauds its protection of fair use, first sale, abstract ideas, and limitations on copyright durations.

      for those who did not ready the article, what the article _does_ attack are the destructive effects that the DMCA and CTEA have on these properties of copyright.

    • That's the genius of RMS. Using the copyright law to fight copyright. You would not expect less from a person who came up with a recursive acronym.

      I suspect it comes from being a lisp programmer.

  • Why does it seem (Score:4, Interesting)

    by Medevo ( 526922 ) on Wednesday July 31, 2002 @04:36PM (#3988735) Homepage
    Why does it seem that when us little people break copyright (and patent) law (accidentally or truthfully), it is getting harder and harder to escape the persecution. Strangely enough when the "little guy" comes up with a new idea or product, copyrights it, but other companies ignore the copyright law and use their lawyers to stall while they make profits (a good example of this is with the finger skateboards, they were created first by one person who copyrighted them and leased the rights to Tyco or somebody, but as soon as his allowed product hit the shelf's, so did 5 or 6 clones, and to this day I believe that they haven't resolved the case).

    I believe inventors should get the ability to be credited for their work, but the current copyright laws just seem to favor the collective might of those with lots of lawyers and good lobbyists.

    IMHO, a better system would be that as soon as something is copyrighted anybody can use the label or product, but the inventor (or creator) should be reimbursed in some way. (This system has inherent problems, but so does our current one)

    Medevo

    • a better system would be that as soon as something is copyrighted anybody can use the label or product, but the inventor (or creator) should be reimbursed

      In the legal world, this is called a "compulsory license". To learn more about limited compulsory licenses that the USA and EU already provide for specific types of works, try this link: compulsory copyright license [google.com]. You brought up a good point; perhaps compulsory licensing could solve some of the problems with copyrights and patents in the USA.

      However, if anybody tried to implement it, you'd hear a lot of b*tching from moneyed IP-holding interests, such as authors and songwriters claiming that "Yes, I'm rolling in dough, but I'm p*ssed off that my name has got attached to this tripe that somebody tries to call a derivative work," big pharmaceutical companies wanting more royalties than the government regulators set for the AIDS drugs, etc.

    • How about this: The inventor could *choose* the value he is reimbursed! Wow. That's a good system.

      Wait. That's our system.

      Copyright works great, it just lasts too long. Laws will always work better for people with lawyers. If that's your only problem with copyright, then your problem is with the entire judicial system.

      • Try *reading* the article: Copyright worked better before the DMCA than after the DMCA. Almost all of the comments in this thread, including yours, are extremely superficial.

        Read, think, post. In that order.

      • Blockquoth the poster:
        The inventor could *choose* the value he is reimbursed! Wow. That's a good system.
        Is it? I'm not sure the premise has been proven... Oh, wait, let me read on:
        Wait. That's our system.
        Oh, that's why it struck me as a problem. Taint by association, I suppose.
        Copyright works great
        I think you'd get some argument here. Copyright works, more or less, but few interested parties seem to think it "works great". And the parts that work the best deal with the analog world, not the digital one.
      • Actually, in our system, the inventor's company gets total control over the patent, while the inventor gets $1 to satisfy legal requirements. But, whatever.
  • ...to copyright law. The difficulties in actually going through due process extends to criminal law as well. More and more cases are brought up under the heading 'Terrorism' simply to avoid Habeus Corpis or any public outcry.

    I vote (heh) we do the same with the goverment that we would with a computer with this much kruft:

    C:\ Format Washington_D_C: /u
    yes yes yes.

    Damn, that would be nice.

    • C:\ Format Washington_D_C: /u

      Umm, I do believe that's exactly what Al Queda is trying to do...

      In wartime, some civil liberties are suspended. Not saying that that's right, but that's simply what happens. Quite frankly, I'm willing to err on the side of caution now that we're dealing with an environment where a city can be detonated completely w/o warning and without handy-dandy flags painted on the airplanes to let us know who did it.

  • Technology is part of the reason for the change (Score:5, Insightful)

    by Henry V .009 ( 518000 ) on Wednesday July 31, 2002 @04:44PM (#3988781) Journal
    In the 20th century it was hard to be a copyright infringer. You had to have a lot of publishing equipment and junk. You had to make that money back by selling pirated goods. The people you sold the goods to weren't thought of as copyright infringers. They weren't thought about at all.

    Today, your average home internet user can be a copyright infringer simply by using a P2P network. It is trivally easy to copy information. Copyright infringement has moved from a public corporate regulation to a private morality issue.

    When copyright law was created, copying was expensive. It was hard to maintain a printing press. That only really changed with the advent of the internet. Even previous technologies such as tape recording could be ignored by lawmakers (more or less) because they did not unite the possibility of easy copying with easy mass distribution. That has changed. Modern law is struggling to keep up.
    • While your arguement is essentially correct, that wasn't the point of the article.

      It wasn't about piracy or illegal reproduction and distribution of I.P. or copyrighted material, it was about fair use, and how the DMCA has squashed it.

      It's about how now everything is 'Intellectual Property' and how anyone using something deemed to be IP, even in a fair use situation, must defend themselves in court. It's about how, because of the DMCA, it becomes a battle of 'our corporate lawyers are better than your court appointed lawyer'.

      • I don't think that I made my point clearly, then. I was suggesting that it had become that way, not because of the DMCA, but because copyright infringement had become an issue of personal morality. When it is just a corporate regulation, then due process is all you need. When you start regulating morality, things get tricky.
        • Ahhhh! Organized religion!

          I don't think they are trying to regulate or legislate morality. At least I hope not!! I believe the easiest way to get us to do what they want us to do, is give us what we want, at a price we're willing to pay (see: capitalism).

          Give us secure, reliable software (see: myths and legends) that we don't have to miss a car payment to buy, and an album with more that 1 good track on it (or bring back the EP) and we'd forget about P2P and warez and spend a little cash.

          • Blockquoth the poster:
            I believe the easiest way to get us to do what they want us to do, is give us what we want, at a price we're willing to pay (see: capitalism).
            What "they want us to do" is surrender time-honored and crucial concepts of fair use, non-commerciality, and the public domain... not to mention free speech itself. There is no price they can offer that makes it a good bargain to "do what they want us to do".

  • the history of media... (Score:4, Interesting)

    by vex24 ( 126288 ) on Wednesday July 31, 2002 @04:57PM (#3988834) Homepage
    I've heard the argument that as the cost of distributing an artform slide towards zero, the profit margin falls off and the art matures, as only those who truly believe in the artform continue to practice it...

    The example is poetry... At one time poets were well paid and could achieve a certain amount of fame and occaisional hefty profits for their work. Nowdays very few poets can "make a living" solely from their art. People still write poems, but the high availability of cheap publishing ensures that they won't make much money at it.

    Music is going through the same kind of schism... rock and roll music is a cheap commodity these days, as proven by the big labels that invent bands from thin air dozens of times a year. Distributing music via the internet is shockingly cheap, so naturally the profit motives will be lessened and the artform thinned out.

    The problem is when the record companies buy laws to stave off the decline of their art as a cash cow. There interference merely delays the evolution of the artform and introduces serious questions about art, freedom, and copyrights.

    Personally, I realize that record companies have legal grounds for trying to stop music sharing, but I don't believe they'll have much success in doing it. They might have an easier time of it searching for a new business model on which to rebuild the artform...

    • Re:the history of media... (Score:3, Interesting)

      by PSC ( 107496 )
      At one time poets were well paid and could achieve a certain amount of fame and occaisional hefty profits for their work.

      Uhm... when exactly was that?

      Historically, only a few poets, who happened to be favoured by their respective sovereign (and had to write in support or at least not in opposition to them) could make a decend living off their art. Otherwise they would die as a pauper. This goes back till the dark ages. Walther von der Vogelweide, medvial "rock star", was paid by souvereigns (several of them, depending who paid the most; and naturally, he would write poems in their favour), because the poor people hanging around on the city's market place - his main audience - could never affort to pay this guy.

      Same goes for music. Haendel was a merchenary of the British crown; Mozart, who wasn't, died a pauper (albeit a famous one).

      Bottom line: at any time and age, only a very few artists could survive by their art alone and make a decend living. This has nothing to do with expensive or cheap distribution channels.

      Otherwise, pre-printing press authors would all have been insanely rich, because copying (manually!) was an enourmously expensive and time-consuming effort. Or just think about the pre-record musicians - they must have been like Rockefeller (or Gates :-) since there were actually NO "pirated" copies! Yeah, right!

      (BTW calling copyright infringement "piracy" is a quite tasteless belittlement of actual piracy, which is accompanied by bloodshed and murder. For copyright infringement, even "theft" is technically incorrect since the producer isn't actually lacking anything they formerly posessed - they lost the chance of one more sell, so in a sense, it's "virtual theft" or "potential theft".)
  • $82.50 per year you too can subscribe [chronicle.com] to The Chronicle of Higher Education, and read articles about how the greedy content industries are screwing us into the ground.

  • Microsoft Lawyer (Score:5, Insightful)

    by Milo Fungus ( 232863 ) on Wednesday July 31, 2002 @04:58PM (#3988846)
    I've read various editorials about copyright law. The basic point of many of them is this: The U.S. Constitution grants congress the right "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" The practice of using copyright law for the hoarding intellectual property is in many ways destructive to "the progress of science and useful arts." Current interpretation of copyright law is, by this arguement, inconsistent with the original intent of the law.

    I was speaking with a friend of mine recently about his law practice. Because of my interest in the free software movement, I asked him if he ever works in copyright law. He does quite a bit. I asked him to explain the original intent of copyright law. He said that it was to protect inventors and authors from having their work stolen from them - to secure to them the rights to receive the benefits of their ideas. He didn't mention anything about "the progress of science and useful arts."

    I told him my reason for asking about copyright and explained the basics of the GNU GPL. It turns out that he's one of the regional lawyers for Microsoft. It was counter-intuitive to him that people would contribute to a product as a peer-production effort without receiving a direct monetary reward. His impression of the open source community was that they are a bunch of hooligan pirates who don't want to pay for anything and will steal intellectual property rather than pay for it.

    This was rather shocking to me because I'm not a pirate. I don't have any illegally-obtained recordings, movies, or software. I don't share my copies with those who ask. I view open source as a superior development model, not as a malicious piracy scheme.

    What I learned from this experience is that we need to do more educating of people. We need to teach people that the free software movement has noble intentions. We have an entirely different business model and product development procedure. We don't do business the same way Microsoft does. That's offputting to people who can imagine nothing but proprietary ownership.

    This post is long, but I'd like to make one more point: Why does fundamental ownership of a creation have to be a problem? I think a programmer who puts his sweat and tears into code has a fundamental right to he benefits of his work. I feel personally attached to songs that I record. Copyleft is about using that fundamental right of ownership to set the creation free and to allow others freedom to use it. In order to be able to set something free, you must first own that something.

    • You sound as if you feel that people have a fundamental right to control the reproduction and use of their ideas. The more I talk to people about these issues, I get the idea that almost everyone agrees with you. I can't really understand where people come up with this natural right. It's practically assumed.

      I don't see why. To my reading, the framers have included copyright provisions in the Constitution as a means of solving the Tragedy of the Commons. That is, they seemed to desire to maximize common good, rather than recognize a natural right. If there was a fundamental right to control the use of your art, I can't imagine why it wouldn't last indefinitely. This could not possibly maximize common good. It would give artists a miniscule increase in projected revenue from their artwork. This would not inspire the creation of better/more artwork.

      Why is copyright a natural right? I just don't get it.

      Anyway. A million /.ers have made my argument before. As the copyright term goes from 40 years to 90 years, artists gain something like .5% in projected return on investment. Further increases are even less beneficial. At some duration, the total public benefit is higher if there is unlimited access to the work. Unless there's a persuasive reason for copyright to be natural, then it's simply too damaging to be so long.

      • Re:Microsoft Lawyer (Score:2, Funny)

        by Anonymous Coward
        As the copyright term goes from 40 years to 90 years, artists gain something like .5% in projected return on investment.

        Yeah, but they're artists...math is a foreign concept to them. They have problems calculating how much change to give me when I buy an extra-value meal. To them, 90 years is (provided they do the math correctly ;) 50 years better than 40.
      • Excellent post. The notion of copyright as a natural right is counterintuitive. Historically, copyright and ownership of ideas made little sense before the Gutenberg printing press. (c. 1450 I think) The first copyright laws were established in England as a means of protecting a printing company's monopoly, in exchange for censorship of material considered seditious. Only one company was legally permitted to publish works and copyright law was intended to protect that monopoly (they even gave the company search and seizure powers usually reserved for the gov't! A model for the BSA perhaps?) Nothing about an author owning his work at all. Of course, US copyright law is based on different notions, but there is no evidence that anyone thought copyright a "natural right" before a bunch of immature egomaniacs found themselves in possession of tons of copyrights in the 20th century as a result of the rise of the music, entertainment, and publishing industries.

        The idea that we should, or even can, exert control over what is done with the thoughts and feelings we publish is a uniquely 20th century concept, tied to a certain confluence of technological and market forces, and I predict that it will not survive the 21st century. That's not to say that we will lose a sense of attribution - the ancient Greeks, for example, had a strong sense of the importance of attributing credit for a thought to the thinker, but the idea that the "original" thinker should be able to control how other people use the original thinker's published work, and in what context they use it, would probably have mystified the Greeks.

  • Naming names (Score:3, Insightful)

    by milo_Gwalthny ( 203233 ) on Wednesday July 31, 2002 @05:00PM (#3988853)
    One of the things I like about this article is that he tells us who to support if we agree: Rep. Rick Boucher, Democrat of Virginia. One of the things I hate about most news items is that they always attribute actions to "Congress" or "a group of Congressmen." How are we supposed to be a representative democracy unless we know who to credit and who to blame?

    So, Virginians, Vote Boucher!

    And let's always credit the good guys and demonize the bad guys by name, party affiliation and voting district!
    • That's agood point, Milo, but it doesn't go far enough.

      Non-Virginians need to show their appreciation of Boucher the old fashioned way: with cash.

      Want Boucher to succeed? Send the guy's campaign fund some cash. In fact, send enough that other politicians sit up and take notice.

      In fact, send a copy of your cancelled check to your own representative. Let him (or her) know why you respect Boucher enough to part with your beer money. And let him (or her) know that you vote, and are capable of sending an equal amount of money to your representative or to his (or her) opponent.

      Send a copy of that letter to ten of your like-minded friends, and exhort them to do what you've just done.

      So? What are you waiting for? Send that check, and send those letters. Now. Before the cops come to confisticate your computer. Before the RIAA sends a million to Boucher's opponent. Before Fritz Hollings or Joe Biden get their bills passed. Now.

  • copyright and the sciences (Score:3, Interesting)

    by margaret ( 79092 ) on Wednesday July 31, 2002 @05:03PM (#3988864)
    As a graduate student in the biomedical sciences, I wholeheartedly agree with what the article says about professional journals and copyright. It's a racket. You have to publish your work to advance, and the most prestigious scientific journals require you to sign the copyright over to them and pay a fee for each page and figure. Then they have the audacity to charge a subscription fee, as well as take in advertising revenue and sell your name to junk mail lists (yes, there is science spam and junk mail too). You're actually supposed to get permission to use one of your own figures in a talk or other type of publication.

    On a brighter note, I was quite pleased last week when I received the first issue of a new journal called The Journal of Biology [jbiol.com]. This publication aims to be a top rank journal on par with Science and Nature, but follows the "open access" approach. Specifically, there will never be a subscription fee, all content is available online for free, and most importantly, authors retain copyright of their papers. I think this is a huge step in the right direction. Harold Varmus, the former director of the NIH, was a big supporter of open access, and I think the time is ripe for this kind of change. This journal's publisher BioMed Central [biomedcentral.com] seems to be leading the way in this direction. Good for them! I hope to be sending lots of papers their way!

    -margaret

    ps if I posted part of this before, I'm sorry. My hand accidentally bumped the enter key. New keyboard.
  • We know what the problem is.

    Tell us how to fix it.
    Where's the online petition? Where are the meetings of these "grassroots" campaigns located? Who do I send money to? Why would a US politician care if I (a Canadian) complained about something? Where can I buy "Activism for Dummies"? etc.

    I think lots of people would like to do something. They just don't know how.


    • Why would a US politician care if I (a Canadian) complained about something?

      Umm.. they wouldn't. And no offense, but they shouldn't. They're supposed to represent *us*. (Me being an American.)

      Not that you can't help, but you'll need to find another way. Launching/assisting with a pettition drive, organizing communication, etc...

      • Why would a US politician care if I (a Canadian) complained about something?

        A US politican won't. A Canadian one will. But since a lot of patent issues are covered by international treaties, a little right thinking Canadian input might do some good here in the States.

  • I wonder if this is worth fighting... (Score:3, Insightful)

    by A nonymous Coward ( 7548 ) on Wednesday July 31, 2002 @05:18PM (#3988927)
    Don't get me wrong. DMCA, SSSCA, DRM, long copyrights, software patents, the whole kit and kaboodle -- I despise them all. But it seems like such a losing proposition, fighting them. I wrote a nice polite letter against the SSSCA, sent it to all 100 senators two months ago, and I haven't heard back from a single one of them. The only response seems to be ever worse legislation.

    I wonder what if, instead of trying to refuse these lemons, we figured out what lemonade to make? Use these stifling constipating laws against those who impose them. Twist them back on the very sponsors.

    Sometimes, when I am battling a program, when the code seems to get uglier with every fix, I feel like it's turning into another C++ morass. That's when I try to step back and look at the big picture from a fresh viewpoint, and redesign the whole thing. (If only a certain B.S. had done so with C++... :-)

    I wonder if that's possible here. Instead of fighting these ridiculous laws, is it possible to enforce them to such an extreme that the sponsors will be hoisted by their own petards? Seems like there has to be something better than beating heads against every new brick wall, like tunnelling underneath or jumping over them.

    I don't know what, it just seems like maybe an idea worth considering.

  • Could any of the lawyers, or law secretaries, or law students, or frequent viewers of Law & Order comment on this as a legal strategy?

    Claiming ones due process rights have been violated after dealing with the after-effects of a DMCA notice? Would it be considered extortion upon the ISP to force them to do something that the normally would not do merely as a result of an accusation (ie, not a motion in court)? Especially since we're dealing with free speech issues?

  • Going about it the wrong way... (Score:5, Insightful)

    by ambisinistral ( 594774 ) <ambisinistral@@@gmail...com> on Wednesday July 31, 2002 @05:52PM (#3989074) Homepage
    Bad kaws get wriiten all the time, but they do frequently get over turned eventually. One of the best means of arguing against a law is to develop a 'literature' of archtypical examples of that law being abused.

    One of the reason thye anti-DMCA and Bono Act forces aren't getting traction with the public is they are doing a poor job of building that 'literature of abuse'. We need to get away from the examples involving hacker groups, cryptologists discussing obscure algorythms and p2p piracy (never allow them to couple p2p with copyright -- two different issues). Instead we need to concentrate on examples that resonate with the mythical Joe Sixpack.

    A week or so ago I had dinner with a couple of journalists... neither of them particularily Tech savy. Some how the conversation turned to these copyright issues. I've reak a lot of the stuff on Chilling Effects [chillingeffects.com] quite carefully. I started out with the stories of the Underwater Gardening mailgroup [salon.com] problems and the poor lady and her Dragon Art [dreslough.com] that got stomped on by Anne McCaffrey. Both of those stories resonatedwith my listeners because they were "little guy getting squashed" stories. We then moved onto the Bona Act and some of the DMCA issues Both of these journalists requested the URL to Chilling Effects so they could read further.

    In short, don't present a non-technical person with technical examples they'll have difficulting sympathizing with. Use some simple marketting and engage them with human interest stories... stories they can relate to. The little guy getting screwed never sits well with the public, we need to build up a literature of those types of stories to redefine the 'spin' of the debate.

  • Raw power struggles (Score:4, Interesting)

    by Aliks ( 530618 ) on Wednesday July 31, 2002 @05:54PM (#3989080)
    I thought at first this would be another piece of guff from a "guru" jumping on a bandwagon. But no, some interesting stuff in the article. Worth reading and looking at the recommended action plans.

    It seems to me that battles over Intellectual Property Rights are part of the continual struggle for power and influence between Big business and the individual / consumer.

    I remember from a discussion with a politics student some 20 years ago that power was defined as the ability to break an agreement/promise with impunity. She thought there were 4 types of power relationship:

    Physical: Give me that valuable resource or I cudgel you!

    Knowledge/Skill: Do as I say, I'm an expert in this area and I can run rings round you

    Positional: I am your line manager and I don't care what I promised, you work for me and don't forget it.

    Systemic: You don't even know that you are losing out because I write the rules of the game and there is no mechanism by which you can protest.

    The first three powers can be held in check, controlled and balanced to some extent, well enough for us all to get some benefit. The last is more of a threat.

    Big Money has always been keen to use systemic power because they can and lest such power be used against them. Setting the terms of trade, aggressive lobbying of government, aggressive use of legal muscle in SLAPP suits(strategic lawsuits against public participation) are all well honed tools.

    It is not clear to me that such battles are winnable. In the end Big Money does have more money and any new development will eventually be brought under control. But . . . . .

    Some have compared the grabbing of IP to the enclosure of common land (dates vary in different countries but it was back in the 18th Century in the UK) but generally land was less productive when held in common. The reverse is true of IP and copyright. When closely held, it produces less wealth for society. The more this is seen to be the case, the less interest Big Whatever will have in pursuing it

    Maybe the aim should be to demonstrate the benefits of free sharing of Knowledge. If a country or group of people share IP freely and reap so much benefit then people will start asking why don't we do this too.

    Lets have some more seminal Cathedral and Bazaar articles!
  • Many people have complained here that they've written to several or dozens of congresspeople. In our system, a congressman (in the house) represents the people of her district. While she is supposed to be concerned with the good of the country as a whole, her actual job is to represent HER DISTRICT.

    So write to YOUR congressman or senators. Only three people in congress represent you, not all of them. And be sure to let them know you live in their district or state.

    (Which is why this sort of thing particularly pisses me off - I live in DC, so I have only one person representing me, and she doesn't even get a vote!)

    • Re:Write YOUR congressman (Score:3, Interesting)

      by Danse ( 1026 )
      I've already written to my senators and rep about various copyright bills as they have come up. When I get a reply from them (usually a couple months later at least), it's always a form letter stating that it's essential that we do whatever is necessary to protect copyrights. The American Way of Life(TM) depends on it! So, I see that it's pointless to try to reason with them. For every letter I send them, there's a dozen corporations handing them thousands of dollars for their next campaign. Who do you think they listen to?
  • They forgot to mention in the Felton section about how he was turning in that paper, because he took part in a contest to break those methoods. A contest RIAA itself started and promoted.

    That's some damn important information to leave out.

    Except for that, this is a great read.
  • It would seem that the simplest solution to corporate power is to write legislation overturning the ruling that corporations are citizens.

  • Siva Vaidhyanathan interviewed on Slashdot (Score:3, Informative)

    by haaz ( 3346 ) on Wednesday July 31, 2002 @11:17PM (#3990242) Homepage
    I had the pleasure of interviewing Siva Vaidhyanathan, which appeared on this very site [slashdot.org]. And I just posted the full, uncut version over here [indymedia.org]. It's a few pages longer than what was posted here.

    Good luck at NYU, Siva!

    -- haaz

    ps - haaz.net is temporarily down.

  • Proposals for the next Congress (Score:5, Interesting)

    by Animats ( 122034 ) on Wednesday July 31, 2002 @11:31PM (#3990276) Homepage
    With Big Business not looking too good right now, it's time to start thinking about some populist proposals for after the fall elections. I suggest the following starting points:
    • Cut copyright terms down to 20 years, the same as patents. This puts a vast amount of out-of-print content in the public domain, which will help to bootstrap the broadband revolution. Just think of all those old TV shows waiting to be downloaded. It's not really a big-ticket item for the content owners, but it's just what's needed to sell all that broadband hardware. And in the end, it will probably be a win for the movie industry; once all that broadband bandwidth is in place, they'll have a new distribution channel.
    • Restrict technical controls on content. If you can't prevent some act under copyright law, you can't protect it by technical means either. This prohibits controls which restrict resale, skipping commercials, etc.
    • Restrict end-user license agreements. Again, if an act can't be prohibited under copyright law, an EULA can't prohibit it either. No benchmarking restrictions, resale restrictions, etc.
    • No protection on broadcast content. If it goes out over the public airwaves, technical protection measures are prohibited. Protected content has to go out over the Internet, cable, or purchased spectrum like DirectTV or MMDS. Anybody can build a PVR, and yes, it can skip commercials.
    That's a strong starting point. It's not unrealistic in the current political climate, either.
    • You first proposal attempts to reduce benefit of current law for an act under the already existing current law.

      Laws are not permitted to be retroactive, if they take something away from you. Such a law is called Ex Pos Facto -- "after the fact".

      This is the same reason that, if you spit on the sidewalk, and they enact a law against that, they can not come arrest you for breaking the law for an act which occurred before the law passed.

      The nominal effect of this is that reducing the terms of copyright protection will only have an effect on works copyroghted after the change to the law. Prior copyright terms can not be reduced.

      In fact, this is the basis for the challenge to the copyright extension act of 1998: by extending the term of the copyright 20 years on works copyrighted before the act became law, the public has been robbed Ex Pos Facto.

      This works because the copyright protection granted works is made *in trade* for the disclosure of the copyrighted information.

      I expect that there is room for challenge for the patent reform act of 1996, which changed patents from 17 years from date of issue to 20 years from date of filing, and grandfathered patents filed but not issued at the time of enactment in law to the later of 20 years from date of filing or 17 years from date of issue. Technically, they are only permitted to take grant date into account on legal reform affecting such patents: the act of filing the patent was the inventor entering into a contract with the public to obtain protection for a limited term in exchange for disclosure to the public.

      What it boils down to is that rewriting a contract without the consent of both parties is illegal. In the copyright extension act case, the argument is that it was done without the consent of the public.

      Effectively, the only way a term can be shortened for a copyright or patent, once the agreement has been entered into, is through the exercise by government of The Right Of Emminent Domain: basically, by siezing the property in the name of the public.

      I'm not adverse to a shortening of terms and siezure of property granted under the pervious terms as a means of making the terms retroactive; however, you should be aware that that's what you are advocating, if your plan is to be workable at all.

      -- Terry
  • The real obvious solution is to quit voting for the same asses that make these illegal laws. Hardly anyone bothers (except big business) to sue these days because no one can afford to. The economy requires that we all work well over 40 hrs per week, and free time to pursue other beliefs/interests are seldom or non-existant. Once a politician gets re-elected a few times, they start learning to manipulate the system for their own benefits. This makes them more powerful and power makes them more likely to get re-elected. I like the idea of term limits, but Congress will NEVER enact them because they NEVER vote for anything that will ultimatley hurt them, like pay raises. A good example is Campaign Finance Reform. CFR is a stand many take but will never act on, understandably! They NEED that money. They are professionals and they make money by being in that position. I activately write letters to my state's U.S. Senators only to receive stupid form letters saying he/she will look into it and vote for whatever is best for the people. Truth is, they will vote for whatever gets them the most contributions. This has got to STOP! We continually vote for 65+ year old politions that probably have never even used as computer, and they are making legistation regarding their uses. That would be like ME making a law outlawing regarding the medical community without knowing a thing about it. Perhaps politions should be required to take a course regarding the subject that he/she is voting on first so they are better informed about the subject. As I said earlier, I am for term limits, but since that will never happen in my lifetime, or probably anyone elses, we just have to quit voting for the Incumbant. Ultimately, voting may be outlawed too, but until then, everyone should vote. It really amazes me that in the time of war, politions are taking advantage of the situation and passing pratically everything the President hands them. The new corporate reform bill, or whatever it's actually called, passed in less than three weeks. We didn't need any new laws for this issue, we only need to start inforcing the laws that were already in place. Why should we believe that the gov. will prosecute under the new laws? We shouldn't. I'd be willing to bet that no one from Enron will get prosecuted! Here's an idea....lets eliminate every law this country has made since 1863 and start over clean. Create a smaller more efficient government, and really allow the states to make their own laws without threats from the federal government (ie. the medical marijuana laws). Then perhaps we should rename the USA to the USSA, Inc. That would more accuratly describe our current state. I am an American, and I love this country, but things are really getting bad, or have you noticed?

  • Did nobody else here learn critical analysis or reasoning?

    • Today, due process is a lot harder to pursue, and the burden of proof increasingly is on those accused of copyright infringement. For the copyright act, in essence, makes the owner of every Internet service provider, content host, and search engine an untrained copyright cop. The default action is censorship.

    There are three mostly separate ideas in that short paragraph.

    1. That due process is "harder to pursue". Unsubstantiated. Following due process means actually taking your case to court. Publishers can do that. Most choose not to. There has been no erosion of due process. In fact, there has been a clarification of what due process is with regard to copyright.
    2. The burden of proof is "increasingly is on those accused of copyright infringement". Why? The DMCA gives a mechanism that obviates the need for proof by either side. It does not assume guilt. In fact, it provides a well defined way for publishers (including self publishers) to robustly assert their innocence prior to entering legal wrangling. If they choose to do that, then they can follow due process. Most choose not to.
    3. "The default action is censorship". True, but unrelated to the other two points. It forms no part of this paragraph or of a consistent argument. There's nothing in the DMCA that says "You must take down the contested material", only "If you choose not to take it down, you will be liable". The reason that the default action is censorship has nothing to do with due process or a change in the burden of proof, it has to do with a change in the burden of liability, a clarification of the process, and a choice to not defend publication.

    You'll notice that I'm heavy on choice here, because that's the issue as I see it. Abuse of the DMCA could be stopped in its tracks right now if publishers chose to fight it. But most don't. They pay a lawyer money to tell them that they will have to pay lawyers lots more money to fight it, and then they cave in. Bad choice. If you believe that the DMCA is wrong then you don't need a lawyer to tell you that, or how much money he'll have to charge you to fight it. If you really believe in fair use, then you can choose to defend yourself (and the court will make allowances for that) and stick to your argument that you made fair use, and that it's up to your accusers to prove otherwise. There's nothing in the DMCA that changed the burden of proof in this regard.

    I fully agree with Vaidhyanathan's sentiments, but his arguments are wooly and slipshod. C-. Could try harder.

  • Comment removed (Score:3, Interesting)

    by account_deleted ( 4530225 ) on Thursday August 01, 2002 @04:59AM (#3990907)
    Comment removed based on user account deletion

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