From: Bob Boster (meridiesATdetritus.net)
Date: Thu Aug 15 2002 - 01:55:54 PDT


(a crummy cut and paste for anyone who can;t be bother to hit the link)

you can set the rules, you can win the contest. That's the major reason the
entertainment cartel is winning the debate over copyright in the Digital Age.
Average people are not part of the conversation, not in any way that
matters. To the cartel and its chattel in the halls of political power, we
are nothing but ``consumers'' -- our sole function is to eat what the
movie, music and publishing industries put in front of us, and then send money.
It's long past time for the rest of us to challenge the cartel's
assumptions, actions and overall clout. Over the next few weeks and months
I'll offer some suggestions.
The first thing we can do is stop letting the entertainment companies set
the terms of the discussion. They torture language and logic. Let's restore
some balance.
One of their most noteworthy achievements, notes Stanford law Professor
Lawrence Lessig, is to frame the debate in a way that presents two extreme
choices. Unless Hollywood and its allies gain absolute control over digital
music, movies and other ``content,'' insist the cartel members, there will
be anarchy -- a situation in which no creative person can ever be
compensated for his or her work.
Absolute control means demolishing the rights we users of copyrighted
material have enjoyed for centuries, such as the fair-use right to make
personal copies or quote from copyrighted works. It means carving away
what's left of the public domain, shrinking the public commons from which
so many creative works have emerged in the past.
The entertainment companies don't fear the end of creativity. They fear the
end of the business model that has centralized control over much of our
culture, a system that has produced extortionate profits for companies that
have a remarkable tendency to cheat the artists in the process.
The industry has made it abundantly clear that it isn't interested in a
compromise that preserves traditional rights. By using scare tactics -- the
threat of anarchy and loss of creativity -- the entertainment companies
poison the well and prevent even the possibility of a compromise.
Maybe there can't be a compromise. Maybe technology inevitably creates a
binary choice.
But I'm convinced that we can preserve our rights, if we can only persuade
Congress that they're worth preserving. There's little or no constituency
for fair use and other rights, partly because lawmakers are only hearing
one side. But if the community of readers, listeners, viewers, scholars,
researchers and others who don't ``own'' copyrights doesn't at least
challenge the terms of the debate, it will surely lose.
The copyright industry talks about ``intellectual property'' -- a grossly
misleading expression that turns history and logic upside down.
Property, by tradition and law, is physical. The idea of ``intellectual
property'' is a fairly recent invention by the people who believe they
should be able to own ideas, and totally control their use, with the help
of a compliant Congress.
If you go into a grocery store, pick up an apple and leave without paying
for it, that's stealing. The physical product, the apple, has been
appropriated. If you make a copy of a song you haven't already purchased,
the owner has lost the possibility that you might have paid for it.
I'm not arguing for the wholesale copying and selling of others' works,
such as the kind of thing we see from China-based DVD factories that stamp
out tens of thousands of copyrighted works and sell them for pennies. That
surely is criminal behavior. A personal copy of a CD you've already
purchased, for playing on a computer or in your car, is not piracy no
matter what the record companies want.
And neither is a download from a file-sharing service by someone who wants
the music but sees a chance to avoid paying; that's somewhere in between
the DVD factory and personal copying, but the industry sees everything as
When we think about piracy, we should realize who the biggest pirates are
-- the members of the entertainment cartel themselves.
The nation's founders wanted to encourage inventiveness. The Constitution
explicitly discusses the rights of writers and other creative people in the
context of adding to the public good. Congress, the founders wrote, has the
obligation and power ``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 . . .''
Note the order. The purpose is to promote progress in science and the arts.
The way we do it is to give creators rights for limited times, after which
the material ends up in the public domain -- and, in the meantime, it's
available for others to use.
Congress has tortured this clause, extending copyright terms many times.
Today the term of copyright is so long as to be effectively unlimited --
or, as well-informed cynics have noted, long enough for Disney to extract
every dollar it can get from Mickey Mouse. The irony of the company's
founding -- Walt Disney got rich by using material that had fallen into the
public domain -- is utterly lost on the current operators who run the
When copyright owners extend the copyright terms of existing works, as
they've done repeatedly in the past, they are taking works that would
otherwise enter the public domain and keeping them private. That is a theft
from the public, from you and me, and it surely amounts to tens of billions
of dollars. So who's the real pirate?
To re-establish some balance, we need to re-educate ourselves, to learn the
alternatives to the cartel's offerings. We need to re-educate Congress --
and, in the process, adopt some of the tactics the entertainment industry
uses so successfully.
We need to bolster technology companies' spines. We have to encourage them
not to side with Hollywood and its allies, as too many are doing now, but
rather with the tech industry's customers.
Most of all, this will take your efforts. You can't just sit there. Watch
this space for some specific suggestions. And send me yours. Together we'll
rediscover our rights, and preserve them for our children and their
children. We owe them that much.

Dan Gillmor's column appears each Sunday, Wednesday and Saturday. E-mail
dgillmorATsjmercury.com; phone (408) 920-5016; fax (408) 920-5917.

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