[rumori] Re: pho: Battle lines harden over Net copyright (CNET)

From: Don Joyce (djATwebbnet.com)
Date: Sat Jan 27 2001 - 05:28:43 PST

Most of us who might be considered "anti-copyright" are not at all about
eliminating it. In just the same way copyright itself sees "infringers",
those who promote its usage seem to see the copyright reform battle in far
too black and white terms.

Copyright promoters seem to have the greatest difficulty DISTINGUISHING
between what it does well (prohibiting the counterfeiting of works - it's
best and universaly undisputed application) and what it has grown to become
that hurts us all (used to make unearned incomes through lawsuits over
partial usages or even INFLUENCES that in no way affect the source or ITS
income but prohibit or penalize new work - used to withhold from any
commercial copying when many of those potential commercial reuses are
economically harmless, non-competitive, and could even increase the
source's economic potential - used to monopolize an area of IP - used to
fight off and restrict the very idea of being influenced by a source
(another klind of "copying"), etc.)
As you can guess, I think there are MANY more ways that it debilitates the
"culture" of our intellects while it enhances us in basically only one way,
and that WAS NOT the overall intention of copyright's constitutional
mandate. Yet I see no one involved in copyright considerations going in
this direction - to pare the whole mess down to its essentially beneficial
factors and GET RID OF THE REST. I only see them looking towards adding to
this mess a whole lot of new messyness for digital content that appears to
be headed for the VERY SAME debilitations that shame this body of law
already. All the ways owners have found to CREATE trumped up, unearned
incomes off copyright and its many lawsuit gambits (as opposed to using
copyright to protect the honest incomes they already have which stem from
the creation of actual work) could and should be eliminated, but who wants
to go in that direction? Copyright advocates can dismiss us screaming
"anarchy" all they want while further complicating this already ruined law,
but all most of us really want is an artistically just SIMPLIFICATION. And
what would be their argument against that? They don't know, never really
considered it, doesn't seem to be any part of their strictly commercial
interest in copyright "problems."

Because of the Net's technological uniqueness, I think copyright on the Net
might well be restricted to prohibiting the SALE of whole-cloth copying
there, but have NO power there against copying or reuse of any other kind
at all. For everywhere else and with a few more stipulations, I also think
INCOME POTENTIAL? is just about the only justifiable, art income protecting
criteria for infringement. Then all we'ld have to do is to get this
realistically decided by courts which they definitely are not doing today -
another part of the copyright problem - The business law establishment that
finds itself judging these iffy things often appears to be woefully
ignorannt of how art, itself, actually does and/or should work among a
human population, and simply settles for what it CAN understand - the
"rational" analysis of technical mechanisms postulated by vested interest
legal advocates who treat creative works as if they were any other
"product," requiring independent "originality" when, OF COURSE, art itself
has no such requirement at all and never has had any such thing. Far from
it if we ever got honest about it. Reason number 306 why art should never
appear in court. It's absolutely NOT rationally justifiable as a "product"
and will never be able to "prove" that it's perfectly ok to copy to an
esthetically insecure commerce court's satisfaction. I would also like to
see specially dedicated ART COURTS for any cases that involve creative arts
issues, (any prosecutor or defendent could request the Art Court for it's
hearing) and these would actually find judges who have some understanding,
some education in what it's actually all about. Experience in commercial


>Battle lines harden over Net copyright
>By CNET News.com Staff
>January 26, 2001, 12:00 p.m. PT
>Bruce Lehman thinks the digital copyright laws he helped write are in
>trouble, and it's largely the Net's fault.
>Lehman helped author the laws that govern music, video and other digital
>media distribution when he ran the U.S. Patent and Trademark Office in the
>mid-1990s. Now an international intellectual property lobbyist, he says he's
>stepping back into the digital fray, creating a pro-copyright coalition
>aimed at defending his and Congress' work against public attacks.
>The record and movie industries might be winning court battles against
>Napster and other digital enemies, he says. But they're badly failing to
>explain why copyright is necessary and must become stronger for the online
>"I've had a frustration for a long time that it seems like the only voices
>speaking about copyright and the protection of artists right now are those
>who say there shouldn't be any rights," Lehman said Thursday. "I am
>absolutely amazed at the number of people who seem to believe there is a
>morality in that."
>There's a reason Lehman is rejoining the fray more than two years after his
>bill became law. Once-arcane issues of copyright law have suddenly been made
>real to ordinary people, from college students to rock musicians, by the
>fight over file-swapping service Napster. And this is changing the scene of
>the battles.
>No longer is Capitol Hill the center of copyright arguments; lobbyists and
>activists now are fighting for the hearts and minds of a public that can
>veto copyright laws with a single click of Napster's download button.
>As the wider implications of copyright law have come into focus, an
>articulate opposition to portions of the 1998 Digital Millennium Copyright
>Act (DMCA) is finally coalescing, bridging elements of the entertainment,
>technology and free-speech communities. This loose coalition is gaining
>voice as these various constituencies realize they're being drawn together
>and their views are beginning to reach the ears of policy-makers.
>"I agree with Bruce Lehman. I think there is a groundswell of opposition,"
>said Fred Von Lohmann, a copyright attorney with Morrison & Foerster who has
>been a public critic of the DMCA. "In some ways I think he and the copyright
>owners got a free ride before people were really ready to pay attention. Now
>I think people are ready to hear about it."
>Free stuff isn't enough
>It's clear that the force of Napster and other so-called peer-to-peer
>software programs has sparked much of the energy in the debate. By providing
>unlimited access to free music, these services helped crystallize some
>radicals' conception that "information wants to be free."
>This idea--or at least the software that makes it possible--has won millions
>of adherents. Electronic Frontier Foundation (EFF) co-founder John Perry
>Barlow has served as this group's intellectual polar star, writing that
>digital distribution makes copyright irrelevant.
>But this appeal to the basic desire for free stuff didn't prove to be the
>right catalyst for coalition building. The movie studios' fight to stamp out
>software code that can help crack through anti-piracy protections on DVDs
>has proved to be a better rallying point for industry critics, if slower to
>seep into the public's awareness.
>That case illustrates the clash between free speech and copyrights. It has
>re-energized the passionate coalition of programmers, professors and
>free-speech advocates that not so long ago helped tear down the United
>States' ban on posting most software encryption code, which protects e-mail
>or computer files from prying eyes.
>Alongside this group are open-source software aficionados, artists who
>oppose the big record labels, and the more selfish energies of ordinary
>Napster lovers. Many of these say the record labels and movie studios' moves
>toward stronger copy-protection technologies threaten to take away rights
>that consumers have now.
>In the crosshairs
>At the center of the renewed controversy is part of the 1998 DMCA that
>protects almost any copyright holder's attempt to prevent unauthorized
>digital copying. Breaking through copy protection, or even distributing a
>device or information that would help break copy protections, was made
>That rule was largely theoretical until a young programmer from Norway wrote
>a program called DeCSS, which could bypass the copy protections on DVD
>movies and allow them to be copied on computers. The motion picture industry
>reacted quickly, threatening to sue people who posted this code online and
>following through in a few cases.
>In the end, the only person who fought back in court was Eric Corley,
>publisher of hacker-focused magazine 2600. He and his attorneys argued that
>he had a right to post the code as a matter of freedom of speech and freedom
>of the press. They also said he had a right to link to other sites that
>posted the code.
>They lost on both counts. Federal Judge Lewis Kaplan ruled that the code was
>indeed primarily meant for breaking the movie industry's copy protections
>and was thus illegal to post or even link to under the 1998 copyright law.
>A further illustration of the law's power emerged recently, when a group of
>Princeton University, Rice University and Xerox PARC researchers said they
>had broken through all the protection technologies proposed by the Secure
>Digital Music Initiative (SDMI). But they said attorneys had advised them
>that telling the world how they had done it would likely violate the law, so
>they have yet to publish their results.
>"This is not a copyright law," says Columbia University law Professor Eben
>Moglen, who also represents the Free Software Foundation. The same type of
>laws could not apply to a printed lock-pick manual or a book on how to
>burgle houses, he noted. "This is a technology-control law of a particularly
>aggressive kind."
>Reality check
>Lehman agrees up to a point. But he says that in the real world, where real
>artists have to make a living, something had to be done about the
>well-recognized ease of making infinite digital copies.
>"This is a real-life thing. This is not theoretical," Lehman said. "There
>was a philosophy behind this legislation, and that was that the creative
>community must have the tools available to protect their copyrights."
>The big trade organizations also are increasingly worried about the growing
>opposition to what they won in 1998 as their legal rights.
>"There looms the onrush of a collision between copyright rooted in the
>Constitution...and the rowdy, assertive babble of those who are determined
>to shrink and possibly exile the concept of copyright in order to grab
>creative material without paying for it," Jack Valenti, president of the
>Motion Picture Association of America, said in a speech Monday. "I urge the
>Congress and the public to ever remember the huge benefits to the nation's
>economy offered by the copyright industries."
>The as-yet-unnamed group Lehman is forming could prove a powerful voice in
>the copyright debates. For several years, the Recording Industry Association
>of America and the MPAA have been the primary public face for defenders of
>Those trade organizations have consistently appealed to the need for
>protecting artists' rights, and the RIAA has run an education campaign in
>schools on this issue for years. But because they are the trade associations
>for large corporations, rather than directly representing the artists whose
>copyrights the corporations typically own, their arguments have been viewed
>by many as suspect.
>A few groups have recently emerged to speak more directly on behalf of
>artists, including Artists Against Piracy and the Future of Music Coalition.
>For the most part, however, these groups have been more concerned with
>ensuring artists have a voice in the debates rather than in defending
>copyright law made without their participation.
>"The Digital Millennium Copyright Act is very forward thinking in some
>ways," said Noah Stone, executive director of Artists Against Piracy. "But
>it is becoming clear that that particular law does have some things that
>need to be changed to address some things that aren't happening in the
>Some of those changes could come in court. Corley, with the help of the EFF
>and a growing number of supporters, is appealing his case. Other elements of
>the DMCA are also being reviewed by courts in the Napster copyright
>infringement suit and other cases.
>But the ability of the various groups involved to win public sympathy will
>affect the balance of power between artists, big corporations, consumers and
>free speech. By this measure, the forces attacking the DMCA feel they are
>gaining ground.
>"We are heading towards a time when it will no longer be tolerable to say,
>'Those used to be your civil liberties, but now it's digital,'" Columbia
>University's Moglen said.
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