Good Analysis From Dan Gillmor

>From an email from the Interesting People list.

The first half of this article sounds very promising to me, going forward
from the tendency to just focus on the transition to public domain that we
find among many allies and spokespeople in the information freedom fight,
for reasons that are still not extremely clear to me -- I have so far just
assumed that the fact that information is free, that certain types of
information intrinsically cannot be placed under exclusive rights, the
fact/expression dichotomy that stands as the legal expression of this --
that all of these are avoided as sounding too clever or sly, as sounding
like attempts to rationalize things that are being characterized as heinous
and baleful by those who, for instance, call file sharers pirates or try to
bottle up code as "intellectual property."  This tiptoing around the
intrinsic freedom of information as a necessary aspect of a free society, is
very misguided and damaging to the movement.

But while what Dan does in this article doesn't actually go the distance all
the way on that front, one can hear in it the ringing echo of this
fundamental aspect which has been elided in most public discourse by those
who have been abusing exclusive rights for so long now.  Note for instance
his phrasing, "The point of copyright is [. . .] equally [. . .] to get
ideas and inventions -- arts and sciences and scholarship -- first into the
public sphere, and ultimately into the public domain."  Setting aside the
way he uses the term "equally"  -- which is wrong [it is not "equally," but
"first"] -- nevertheless his distinguishing of getting into the public
sphere from the transition to the public domain, is a nod at the intrinsic
freedom of information point.  Also note the way he refers to "fair use" as
"part of the process."  Another oblique, but very exciting nod toward
acknowledging the intrinsic freedom of information.

An additional very positive point to the article is the way it is one of a
few cases that are starting to crop up where commentators are showing a
willingness to state the essential fact that authors don't call the shots --
they only call the shots that Congress allows them to call.

The second half of the article addresses other matters, somewhat related,
but less key in my mind.

Seth Johnson


> http://www.siliconvalley.com/mld/siliconvalley/6364424.htm


Studios demanding too much in their copyright campaign

By Dan Gillmor
Mercury News Technology Columnist
Updated: Wednesday, July 23, 2003

News and views, culled and edited from my online eJournal 
(<http://www.dangillmor.com/>www.dangillmor.com):

COPYRIGHT PIETY, NOT RESPECT: Sony, Disney, AOL and the other big Hollywood
movie studios have set up a cleverly named site,
<http://www.respectcopyrights.org/>www.respectcopyrights.org, as part of a
campaign (also including TV commercials and in-theater pitches) aimed at
convincing us all of a single point -- that it's wrong to infringe on
copyrights.

Well, of course it is, especially when the purpose is to get something of
value for nothing or deprive someone else of what he or she has legitimately
earned. But in its typical overstated way, the film branch of the
entertainment cartel is demanding a whole lot more, too.

The industry insists that its customers bow to copyright holders' absolute
control over how buyers may use what they've bought. It demands a veto on
innovation with entirely benign uses, if that innovation also might be used
to infringe. And it sneers at the bargain that copyright holders once made
with society -- a deal that would reward creativity while constantly
refilling the well of public knowledge and art.

The dishonesty on respectcopyrights.org isn't so much in what it says,
though there are more than a few howlers. It's in what the Motion Picture
Association of America doesn't say.

The site is, as you'd expect, totally slanted in a single direction. It
offers no hint that customers or users of copyrighted materials have any
rights beyond those the copyright holder decides to grant.

The mega-corporations that own the studios, through their MPAA front,
piously quote Article I, Section 8 of the United States Constitution. 
Congress has the 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 . . .'' But the cartel
has turned ``limited times'' into something like perpetuity, and the
exclusivity has always been circumscribed, at least until recently.

The point of copyright is not solely to pay creators. It's equally designed
to get ideas and inventions -- arts and sciences and scholarship -- first
into the public sphere, and ultimately into the public domain, where other
creators build on them to make new art, new science, new scholarship.

Part of the process involves ``fair use,'' the ability to quote in limited
ways from copyrighted works. Fair use, in the modern world, also has come to
include our right to make backup copies of what we have purchased; to ``time
shift'' entertainment so we can watch TV programs when we, not the networks
choose; and (among other things) the right to copy a song we've bought into
a format that plays on another device (such as a car cassette player).

But the cartel believes it has the right to allow or forbid any and all of
those uses if they involve digital copying. It plans to enforce these
regimes through ``digital rights'' (read: ``digital restrictions'')
technology, which has the ugly byproduct of destroying customers' privacy,
and through harsh, frequently abused laws like the rigid Digital Millennium
Copyright Act.

The cartel believes -- and basically says -- that fair use is something
copyright holders may provide or withhold at their whim.

This stance tells customers they have no rights, except to spend or not
spend. This stance abrogates two centuries of tradition and common sense. It
steals from our heritage -- and dims our future.

The cartel wants us to respect copyrights. Fine. But when will the cartel
respect our rights, and the public good, as well?

FENDING OFF THE PUBLIC: The Bush administration's acquaintance with honesty
has always been somewhat tenuous. But the White House is setting new records
with its defense of an e-mail system that seems designed to discourage the
rest of us from offering our opinions.

The New York Times reported that the new message-to-the-president system
requires users to ``navigate as many as nine Web pages'' and say whether
they agree with or oppose the president's position on the issue. This, said
a hapless administration spokesman, was an ``enhancement.''

Baloney. The obvious purposes are to reduce spam and deter letter writers --
understandable, given the volume of e-mail the White House receives. But
calling it an ``effort to be more responsive,'' as the administration told
the Times, doesn't pass the laugh test.

Another, smaller motive for the redesign may be found in the character of
this particular administration. Bush and his people have shown their
disinterest in hearing from people who disagree with what they've already
decided.

I doubt the Clinton crowd paid any serious attention to e-mail, either. But
at least that bunch didn't go out of their way to insult the people who took
the time to express their views.

A REMINDER: As I noted last week, I welcome your views, and you can express
them in public if you wish. Visit my Weblog and tell me why I'm wrong or
right, and what I'm missing. Please join the conversation.

Dan Gillmor's column appears each Sunday, Wednesday and Saturday. Visit
Dan's online column, eJournal at 
<http://weblog.siliconvalley.com/column/dangillmor/>http://weblog.siliconvalley.com/columns/dangillmor/. 
E-mail Dan at <mailto:[email protected]>[email protected]