An Open Letter to Chris Dodd

Mr. Dodd, I hear you’ve just given a speech in which you said “Hollywood is pro-technology and pro-Internet.” It seems you’re looking for interlocutors among the coalition that defeated SOPA and PIPA, and are looking for some politically feasible compromise that will do something against the problem of Internet piracy as you believe you understand it.

There isn’t any one person who can answer your concerns. But I can speak for one element of the coalition that blocked those two bills; the technologists. I’m not talking about Google or the technology companies, mind you – I’m talking about the actual engineers who built the Internet and keep it running, who write the software you rely on every day of your life in the 21st century.

I’m one of those engineers – you rely on my code every time you use a browser or a smartphone or a game console. I’m not exactly a leader among them as you would understand the term, because we don’t have those and don’t want them. But I am a well-known philosopher/elder of the tribe (I’ll name two others later in this letter), and also one of our few public spokespersons. In the late 1990s I helped found the open-source software movement.

I’m writing to educate you about our concerns, which are not exactly the same as those of the group of firms you think of as “Silicon Valley”. We have our own culture and our own agenda, usually coincident with but occasionally at odds with the businesspeople who run the tech industry.

The difference matters because the businesspeople rely on us to do the actual technical work – and since the rise of the Internet, if we don’t like where a firm’s strategy is going, it tends not to get there. Wise bosses have learned to accommodate us as much as possible and pick the few fights they must have with their engineering talent very, very carefully. Google, in particular, got its huge market capitalization by being better at managing this symbiosis than anyone else.

I can best introduce you to our concerns by quoting another of our philosopher/elders, John Gilmore. He said: “The Internet interprets censorship as damage and routes around it.”

To understand that, you have to grasp that “the Internet” isn’t just a network of wires and switches, it’s also a sort of reactive social organism composed of the people who keep those wires humming and those switches clicking. John Gilmore is one of them. I’m another. And there are some things we will not stand having done to our network.

We will not have it censored. We built the Internet as a tool to make every individual human being on the planet more empowered. What the users do with the Internet is up to them – not up to Hollywood, not up to politicians, and not even up to us who built it. Whatever else we Internet geeks may disagree on among ourselves, we will not allow our gift of fire to be snuffed out by jealous gods.

Because we will not have the Internet censored, we are also implacably hostile to any attempts to impose controls on it that could be used for censorship – whether or not that is the stated intent of the controls. That is why we were absolutely unanimous against SOPA and PIPA, and a significant reason that you lost that fight.

You speak as though you believe that the technology industry stopped SOPA/PIPA, and that by negotiating with the industry you can set up the conditions for a successful second round. It won’t work that way; the movement that stopped SOPA/PIPA (and is now scuttling ACTA) was much more organic and grass-roots than that. Silicon Valley can’t give you the political firepower or cover you’d need. All you’ll get from them is a bunch of meaningless press conferences and empty platitudes from CEOs who have nothing actually to gain by helping you and really wish you’d go away so they can get back to their jobs.

Meanwhile, the engineers inside and outside those companies will take it as their duty to ensure that you lose that battle again if you try to fight it again. Because there aren’t a lot of us, but the vast mass of Internet users – who do vote in numbers large enough to swing elections – have figured out that we’re on their side and we’re their early-warning system. When we sound the tocsin – as we did, for example, by blacking out Wikipedia – they will mobilize and you will be defeated.

Accordingly, one of the cardinal rules for any politician who wants to have a long career in a 21st-century democracy has to be “don’t screw with the Internet”. Because it will screw you right back. At least two primary challenges to SOPA/PIPA sponsors are in the news right now because they wouldn’t have happened without the popular outrage against it.

Hollywood wants you to screw with the Internet, because Hollywood thinks it has problems it can solve that way. Hollywood also wants you to think we (the engineers) are foes of “intellectual property” and in willing cahoots with criminals, pirates, and thieves. Neither of these claims is true, and it’s important that you understand exactly how they’re not true.

Many of us make our living from “intellectual property”. A few of us (not including me) are genuinely opposed to it on principle. Most of us (including me) are willing to respect intellectual property rights, but there’s a place where that respect abruptly ends. It stops at exactly the point where DRM threatens to cripple our computers and our software.

Richard Stallman, one of our more radical philosophers, uses the phrase “treacherous computing” to describe what happens when a PC, or a smartphone, or any sort of electronics, is not fully under the control of its user. Treacherous computers block what you can see or hear. Treacherous computers spy on you. Treacherous computers cut you off from their full potential as communications devices and tools.

Treacherous computing is our second line in the sand. Most of us don’t actually have anything against DRM in itself; it’s because DRM becomes a vehicle for treachery that we loathe it. Not allowing you to skip the advertisements on a DVD is a small example; not allowing you to back up your books and music is a larger one. Then there was the ironically pointed case of the book “1984″ being silently disappeared from the e-readers of customers who had paid for it…

Some companies propose, in order to support DRM, locking up computers so they can only only run “approved” operating systems; that might bother ordinary users less than those other treacheries, but to us would be utterly intolerable. If you imagine a sculptor told that his new chisel would only cut shapes pre-approved by a committee of shape vendors, you might begin to fathom the depths of our anger at these proposals.

We engineers do have an actual problem with Hollywood and the music industry, but it’s not the one you probably assume. To be blunt (because there isn’t any nice way to put this) we think Big Entertainment is largely run by liars and thieves who systematically rip off the artists they claim to be protecting with their DRM, then sue their own customers because they’re too stupid to devise an honest way to make money.

I’m sure you don’t agree with this judgment, but you need to understand how widespread it is among technologists in order to get why all those claims about “piracy” and lost revenues find us so unsympathetic. It’s bad enough that we feel like our Internet and our computers are under attack, but having laws like SOPA/PIPA/ACTA pushed at us on behalf of a special-interest group we consider no better than gangsters and dimwits makes it much worse.

Some of us think the gangsters’ behavior actually justifies piracy. Most of us don’t agree that those two wrongs add up to a right, but I can tell you this: if you make the technologists choose between the big-media gangsters and the content pirates, effectively all of us will side with the content pirates as the lesser of the two evils. Because maybe both sides are stealing on a vast scale, but only one of them doesn’t want to screw with our Internet or cripple our computers.

We’d really prefer to oppose both groups, though. Our sympathies in this mess are with the artists being ripped off by both sides.

Consider this letter our “Don’t tread on me!”. Our agenda is to protect our own liberty to create and our users’ liberty to enjoy those creations as they see fit. We have no give and no compromise on either of those, but long as Hollywood stays out of our patch (that is, no more attempts to lock down our Internet or our tools) we’ll stay out of Hollywood’s.

And if you’d like to discuss some ways of fighting piracy that don’t involve trampling on us and our users, we do have some ideas.

264 thoughts on “An Open Letter to Chris Dodd

  1. A most excellent summation. You seem to have a good grasp of the issues and the pulse of the community at large. You also seem to have a good knack for being blunt.

  2. Crap. Almost time for the Daily Show, and Senator Dodd still hasn’t commented. Guess I’ll have to subscribe to the feed.

  3. Great open letter, not that I think he’ll care about your opinion even if he does bother to read it.

  4. Great letter, but Chris Dodd will probably never read it. Some staffer might, but then decide not to show it to him. You and he move in different circles. Maybe after more politicians get smacked upside the head, they’ll realize that the techies are more important than they thought….

  5. We need more “safe harbors”, not less.

    We need enhanced rights to tweak, tune, and modify our personal property, not tighter restrictions that prevent innovation.

    Rights are _not_ granted by the Library of Congress. Rights _do_not_ expire after a number of years, and a three year review cycle is pretty damn laughable when we’re talking about consumer technology.

    Also, lest we get any more passengers personally put under lock and key onboard Amtrak or discover any more surprises hidden in the 0bamacare bill well after some intern signs it into law with an autopen, Congress really needs some kind of legislative version control. How about calling it git-sausage? And how about fixing Thomas.gov before you try to “fix” the internet again?

  6. “Members of Congress, please extend your feet. You’re being fitted for tracking anklets. These will also digitally record and transmit everything you say when you aren’t at a GPS location matching the chamber of Congress you serve in.”

    “Attempting to tamper with these anklets will get you removed from Washington so fast you’ll leave body parts behind.”

    “We’re going to have audio records of every meeting you have with lobbyists, everything you do in the bathroom, motel room, or intimate moment with your wife, husband, mistress, or wide eyed intern.”

    “You restrict the rights of the citizenry, they restrict yours. You didn’t listen. Now we will.”

  7. Excellent.

    I can only add that, whether or not Big Entertainment is largely run by liars and thieves, they certainly need to reign in their attack lawyers, who have proven themselves completely unfit to be officers of the court. Said lawyers prompted a rare (for me) multi-hundred dollar donation to something-not-a-501(c)3 charity, namely the Marie Lindor defense fund.

    When ordinary citizens who have no dog in a fight (I never illegally download content or, to my knowledge, violate anybody’s copyright) feel compelled to break open their wallets and give to keep a severe miscarriage of justice from occurring, anybody on the side of those attempting to produce said miscarriage of justice becomes the enemy.

    Chris Dodd, you work for an organization that has proven itself to be my enemy. You might be able to fix that, but as esr has pointed out quite eloquently — it’s up to you to fix. There is no compromise on my part.

  8. >Bravo, and gutsy, too.

    I’m curious why you think that was “gutsy”. It’s not like Chris Dodd has it in his power to do me harm. The only cost speaking the truth has for me is criticism from hackers who think I shouldn’t presume to speak for all of us in public, and I’m quite used to that social cost by now.

  9. “Hollywood is pro-technology and pro-Internet.”

    hollywood has a funny way of showing it.

  10. > hollywood has a funny way of showing it.

    The funny thing is, I can actually believe that they believe this. Or that they did believe it.

    But now they’ve had it explained to them in excruciating detail in many different forums, by many different authors (including our host). If they don’t change their tune, they are either venal or ineducable, or both. Personally I think they’re paid to be ineducable.

  11. Copyright is not property. Copyright is a bargain. We agree not to copy their works for a limited period of time so they can make a LOT of money by selling them. That is mete, right, and proper. But notice the phrase “limited period of time.” Hollywood has broken their end of the bargain. We have consequently ceased to hold up our end (of a bargain that doesn’t exist anymore).

    Hollywood knows what it has to do to restore this bargain. Ball’s in their court.

  12. The word for Holywood’s ills is called “disintermediation”.

    In more classical terms, Holywood’s remedies are to stop the wheel of fortune. But that is what everyone tries to do when the wheel turned to put them in top.

    Good post. Dodd will read it when someone stuffs it in his face, eventually ()

  13. Well written, clear and to the point as usual.

    If you want to make a point to Chris Dodd, the greasy senator’s senator, I suggest that short of taking over his servers and leaving a copy there, this kind of letter will have no significant effect rofl.

    Isn’t he retiring or getting indicted or something ? I thought I read he was moving to his Irish Cottage.
    http://pjmedia.com/files/2010/02/Dodds-Irish-Cottage-300×225.jpg

  14. Who’s going to see Star Wars in “glorious” 3D? :D
    I think that’s one of the funniest things I’ve ever seen. They actually have the nerve to show a series of very old movies in theaters again, in 3D. The trailers don’t actually look 3D but if you remove your glasses it’s still blurry…

    They will probably organize a campaign to remove all pirated copies of the “glorious” 3D Star Wars from any and all torrent trackers to protect their artists’ creativity and hard work.

    These people are really running out of ideas.

    Thank you Eric for being blunt and direct. Your letter will be tweeted and retweeted if you don’t mind of course :).

  15. “To be blunt (because there isn’t any nice way to put this) we think Big Entertainment is largely run by liars and thieves who systematically rip off the artists they claim to be protecting with their DRM, then sue their own customers because they’re too stupid to devise an honest way to make money.”

    Just one example out of many:

    Leaked Audit in Eminem Royalty Suit Highlights Huge Stakes for Record Industry
    http://www.hollywoodreporter.com/thr-esq/eminem-royalty-lawsuit-aftermath-records-fbt-productions-293881

    You’ll also see above that the auditor turned up all sorts of underreported income apart from the digital music issue. It’s claimed, for example, that Aftermath held back too much on vinyl sales of albums including “Slim Shady,” “Marshall Mathers,” “Eminem Show,” “8 Mile Soundtrack,” and “Curtain Call.” The record label also allegedly made accounting errors on units sold at U.S. military bases; allegedly withheld proceeds from litigation wins against Kazaa, Napster, and YouTube; allegedly messed up royalty calculations on tracks said to contain third party contributor like Dido or sampled work from Aerosmith; allegedly deducted too much for Dr. Dre’s production work and the cost of his chartered air travel; and allegedly overstated the cost of doing TV ad campaigns on the “Curtain Call” album.

    That’s just a start. ….

  16. I don’t like the name “intellectual property”. It is severly misleading. These are (following David A Wheeler) “intellectual rights” if you really must conflate several different “limited monopoly” systems, i.e. copyright, patents, and trademarks.

  17. The removal of “1984″ from Kindles is probably not the best example. It was published illegally by a company that did not have the rights to distribute the work after all.

  18. This is a great letter.

    Though I think the biggest problem with SOPA/PIPA is the security risk, which I’m fairly sure Chris Dodd simply doesn’t understand.

    Maybe it’s an overstatement, but I’d almost say as a principle that trying to censor the Internet will break it.

  19. @Tim F
    “The removal of “1984? from Kindles is probably not the best example.”

    It is. And the book exactly describes how literature and history are rewritten in the type of society the “big media” prefer.

    Those who bought the book had done so in good faith. You do not go and forcefully remove books from peoples houses if they turn out to have been printed without the copyright owner’s consent.

    The correct way would have been for the copyright owner to get recompensation from the seller. Going into the appliances of the buyers and delete goods bought and paid for should have been considered a crime.

  20. @Winter “And the book exactly describes how literature and history are rewritten in the type of society the “big media” prefer.”

    Yeah, yeah, yeah, it’s ironic so everyone uses it as an example forgetting the other cases where it was perfectly acceptable. Including “Animal Farm” at the very same time.

    “Those who bought the book had done so in good faith.” And the distributor offered it in bad faith. I’m not trying to defend an industry; I am merely pointing out that the example will be completely unpersuasive to them. They will view the “1984″ and “Animal Farm” removal as an example where the system “worked.”

    “The correct way would have been for the copyright owner to get recompensation from the seller.” What if the copyright owner, or the distributor with the rights to the work, was completely opposed to a low-grade book scan (which it was) of their work being offered and demanded its removal? (Oh, that’s what happened.)

    “Going into the appliances of the buyers and delete goods bought and paid for should have been considered a crime.”

    Baloney. Again, I’m not arguing for the industry; I am merely pointing out that this is a horrible example, grossly overblown by a few, that affected very few people whereas others will and can view it as an example of DRM performing exactly as intended.

  21. Reasonably good. The bit about Google’s market cap is iffy, since there are three or four tech companies with higher market caps that don’t embody the ideals you’re talking about. Why dilute the message?

  22. I don’t think you can just assume that Chris Dodd knows what DRM is or what it stands for.

  23. Too bad Chris Dodd is too stupid, venal and corrupt to even get what you’ve said here Eric.

    Hollywood and the recording industry are fighting to preserve a dying business model. They are doomed, and they know it. They’re hoping they can convince the public to put on handcuffs so that the flow of money won’t stop.

    Someone else said the magic word: disintermediation. We don’t need record companies any more.

  24. Jakub, I’d prefer “Intellectual entitlements” – they’re granted by government action, like other entitlements and can be taken away the same way.

    Like Social Security, or Medicare, or food stamps.

  25. Nice. I do wonder how much this power will remain in those circles, however.
    Areas where the culture is weaker and the government more imposing, such as europe, asia, etc, could produce an effect where everyone else moves to surround the culture.
    This battle is fought across the world, where laws can be passed which cripple the network as a whole. Damage can still be wrought.
    I just hope the culture has enough global sway, as much as it does in the US.

  26. I really think technologists should take the necessary complementary concept to copyright, that of copyduty, and run with it as their battle horse. With it we have a very nice way to counter Big Media’s flawed arguments without the need to go into too many words, as it allows us to get out of defensive talking and step on the attack mode:

    Big Media: “Pirates this and that… IP blah-blah… illegal copies… the Constitution… copyright!”
    Technologist: “Were you fulfilling your copyDUTY, there would be no pirates to begin with!”
    Big Media: “…what? What do you mean?”
    Technologist: “Yes, your DUTY. Because for every right…”

    Well employed, copyduty can become a HUGELY useful rhetorical tool. Let’s start using it!

    In addition, and this is more important for non-Americans, we really should start accusing Big Media’s love for regional restrictions of “geographism”, employing the word with the same connotation of “racism” and other such despicable discriminatory practices. I myself use it together with the made up word “Inamerican” as a way to show how odious it feels for a foreigner to be blocked from consuming something I want to pay for, and the seller wants to sell me, but an unrelated 3rd party doesn’t allow to:

    Publisher: “The ebook is available! Go buy it!”
    Me: “No, it isn’t. It says my location isn’t authorized.”
    Publisher: “We’re an US publisher. We cannot sell to you.”
    Me: “Despicable geographists! So only Inamericans need apply? What’s next? If an author signed a contract with you with a clause that you shouldn’t sell to blacks, you’ll require resellers to follow through?”
    Publisher: “…”

    We need to take the initiative by ashaming them as much as possible. As long as we keep working from a position of weakness, no matter how technically correct our arguments are, we won’t win in any decisive way. Reason alone isn’t enough, as isn’t emotion alone, but by coupling sound reason with a strong emotional pressure we can make it happen.

  27. @Winter “What if the copyright owner, or the distributor with the rights to the work, was completely opposed to a low-grade book scan (which it was) of their work being offered and demanded its removal? (Oh, that’s what happened.)”

    Removing it from the market _is_ appropriate. Removing it from devices is no more acceptable than if it had been a physical book and they’d broken into people’s houses to remove the illegitimate copies.

  28. Pingback: ESR’s open letter to Chris Dodd « Quotulatiousness

  29. There’s a problem with the whole ‘The net interprets censorship as damage’ idea, though. An article in the March issue of Scientific American points out something well known to governments (and industry bigwigs) – most people get on the net via ISPs. They sit at the edges of the cloud, and can’t easily be routed around. We all know about the Great Firewall of China, Iran’s actions, etc. The article discusses mesh networking as a solution, but that may never be practical in the near-term. Any opposition to net control or censorship will have to be political, not technical.

  30. @Alsadius:

    Well said. Out of curiousity, what are your proposed solutions?

    As always, I do not (and will not) speak for another person, but let me suggest a solution. I know “Big Content” — the MPAA, RIAA, etc — will fight any solution that will cut back the length of their copyright, and rather than creep up on “infinity less one day” a decade at a time, let’s just hand them a simple, “indefinite” copyright rule:
    Copyright expires the day the protected product is no longer [legally] available to the general public for a one week period.
    You can view this as an (overly?) simple implementation of @Alexander Gieg’s “copy-duty”: it says as a copyright owner, you have a “duty” to keep the product available. Disney decides that it’s too politically hazardous to make Song of the South available? Lose copyright. Too expensive to keep all the music albums in your library on the market? Lose copyright. Take one day too long in transitioning from movie theaters to DVDs? Whoops, so sad, lose copyright.

  31. A lot of hackers are sympathetic to pirates. Stories of the Pirate Party gaining political traction in Europe and eventually the US are reported positively on Slashdot.

    Ol’ Chris Dodd is not going to point the industry to hackers for advice on how to stop piracy and monetize their content portfolio.

  32. O’ Chris Dodd won’t do anything to risk losing his cushy salary. He’s cashing in on his career in the Senate.

    He’s an example to politicians of how certain policies can pay off after they leave office. (Absolutely not quid-pro-quo!)

  33. Areas where the culture is weaker and the government more imposing, such as europe, asia, etc, could produce an effect where everyone else moves to surround the culture.
    … I just hope the culture has enough global sway, as much as it does in the US.

    If by “the culture” you mean hacker culture, the opposite is happening.

    Copyright maximalism is a U.S.-led effort. Virtually all the pushback on ACTA came from Europe, and virtually all the DMCA- and SOPA-like legislation passed outside the US was due to US pressure. (Pass these restrictive laws, or we’ll put you on our List of Scary Countries That Condone Piracy! Yes, that goes for you too, Canada!)

    So much for the idea that more government control necessarily leads to things like SOPA…

  34. @Tim F.: What bothers me about the 1984 debacle is not that Amazon abused its discretion with respect to whether or not to delete the book from peoples’ Kindles. It didn’t. What bothers me is that Kindle users are locked into a platform in which such an act is even possible.

  35. Mmm, Daniel has it right. The ability is the problem. I mean, Amazon said they screwed up and provided either a $30 credit or a replacement copy of 1984, so there’s not a whole lot of traction there.

    Hm. You know, yeah, I gotta disagree with that portion of the letter. DRM itself /is/ the problem because it provides those capabilities. And once they’re there, they will be used. If you buy a pirated copy of a DVD, the chance that it will get confiscated is directly related to the ease of confiscation. If you declare that copy at customs, they will take it from you. If you just watch it in your home, nothing bad will happen. The presence of DRM makes it very easy to confiscate pirated digital copies. If we think that such confiscation is bad — and I do, in this case, since the purchasers didn’t intend to commit piracy — then it behooves us to cut back on the ability to do so.

  36. @esr I’m curious why you think that was “gutsy”.

    You’re more effective than you realize in marshaling opposition to government “Big Brotherism.” A some point, the boys in the fusion center may get pissed enough to take a run at you.

  37. This is why I refer to the people from the record companies and Hollywood, collectively, as the Music And Film Industry Association of America…the MAFIAA.

  38. Chris Dodd would gain from reading this article and thus educating himself some more.

    We are Anonymous. We are Legion. We do not forgive. We do not forget. Expect us – always.

  39. As a policy matter, my preference has always been for a system where you get to choose either copyright protection measures or technological protection measures, but not both. Thus, if you want DRM-up-the-wazoo, you’re fine, but anybody who manages to break that DRM would be able to distribute the content for free (or for a price). OTOH, if you want copyright protection so as to be able to sue in court for damages, etc., your content must be distributed at all levels to the consumer in an unencumbered, unencrypted form.

    Like that’ll ever happen …

  40. This is an interesting and insightful letter. Alas, it’s probably too long for senator Dodd. To politicians, engineers are but regular voters. Hence, you can expect an attention span of 250 words, maybe even 500, but not 1500. On the bright side though, I think there’s a persuasive amicus brief in there. It will come in handy if a revised ACTA should become law, and when—not if!—that law produces a major First-Amendment case.

  41. @Garrett:

    As a policy matter, my preference has always been for a system where you get to choose either copyright protection measures or technological protection measures, but not both.

    Interesting. Parallels choosing patents or trade secrets. Of course if that were the law, any sane entity would choose copyright. It would be interesting to see what the RIAA/MPAA members would choose…

  42. Interesting. Parallels choosing patents or trade secrets. Of course if that were the law, any sane entity would choose copyright. It would be interesting to see what the RIAA/MPAA members would choose…

    I just read this, imagined Mordin Solus as a legal wonk, and snickered.

  43. “This is a matchless letter.”

    I think you’ll find common cause even with your usual opponents here. I lean left more often than not, but still find this perfectly insightful and accurate. It’s good to see someone with an eloquent public voice make the attempt to speak sanity to power.

    Though I doubt it will make much of an impression, even if he reads it. It’s not like you or most of your readership are potential Democratic voters.

  44. @Daniel Franke

    I’m unsure if you are semantically re-bracketing the argument, in other words — it’s okay to revoke rights that aren’t granted but only if there is no lock-in, and purchasing a Kindle is inherently lock-in, even though you are buying an illicit copy of 1984 when a legitimate option was offered (this was not the case with “Animal Farm” and thus it is a better example than “1984″ despite the lack of irony) and there are innumerable other reasons to not describe ownership of a Kindle as a “lock-in” — or if you are saying something else…

    I’m trying to make two points: (1) rarely (if ever?) does the “good faith” of the end-purchaser grant ownership of an illicitly-acquired good/product/service/ or intellectual property/right/whatever//media (it may be permitted or compromised civilly, but is there any basis for actually assuming a right to ownership if improperly transferred but “in good faith”?). (2) technologists will argue the technological merits of lower pricing and greater permissiveness of reproducibility, but when actually adjudicating the respect of and conformance with the rights of an artist or creator of intellectual property, they will revert to old world analogies (“if it had been a physical book and they’d broken into people’s houses to remove the illegitimate copies.”).

    Again, I just think it is a bad example. At least pick “Animal Farm”; irony is not a good legal argument.

  45. Again, I just think it is a bad example. At least pick “Animal Farm”; irony is not a good legal argument.

    You overlook the fact that notes made on the Kindle copies of 1984 were also disappeared. You can certainly make a reasonable argument that disappearing the unauthorized copies of the book was acceptable; disappearing weeks’ worth of a student’s notes for his term paper, not so much.

  46. @esr Completely off topic but the OSI is insane and IMHO getting very close to irrelevant. They courted CC to submit CC0 for approval then some folks made such a snit on license-review that CC just told them to go pound sand. So you have an open source license (sorta…PD declaration+fallback permissive) that the FSF and CC approved but not the OSI.

    Brilliant.

    I dunno why I’m surprised or annoyed but I am. So I’m blaming you. For something that Bruce did. That seems like the right thing to do and makes me feel better.

    Apologies for going off topic. Well, not completely off topic, you sorta mention the OSI here.

  47. “The presence of DRM makes it very easy to confiscate pirated digital copies.”

    Yes. Why is this bad? I understand that rights owners overreach, but why is this bad? Why shouldn’t rights owners take advantage of technology as well?

    “As a policy matter, my preference has always been for a system where you get to choose either copyright protection measures or technological protection measures, but not both.”

    I would say the owner ONLY has copy rights, and the technological protections must conform to those legal rights. Sometimes those technological protections will overstep individual ownership rights. At which point the consumer can pursue commercial, private, or open source means of circumventing the locks preventing the rights conveyed to them. (I’m willing to accept this burden for a time in the technological progression, because it is seen time and time again that it is not a “burden” to circumvent DRM and that such “protectioned” products do not succeed in the marketplace.) In time, rights owners adjust their technology to reflect that copyright reality — a reality sometimes imposed by the user circumventing or not buying the DRMed material.

    I’m not sure if I see a reason why technology cannot be used as a means of enforcing truly, legal-permitted ownership rights when not in contradiction with rights granted to the end-purchaser.

  48. “You overlook the fact that notes made on the Kindle copies of 1984 were also disappeared.”

    So what. Really. So what. You bought the cheap copy of a 245 page book from a store on a device, even though you can download the same book — because, outside of the US and a couple of other countries, the copyrights have expired — from anywhere in the world in any format you desire and read it on most any device or even your particular device, and you lost your notes. Boohoo.

  49. @tim

    there are innumerable other reasons to not describe ownership of a Kindle as a “lock-in”

    Wait, what? In what way are you not locked into the Kindle ecosystem if you by DRM’d books from Amazon? You can’t read it in any other reader but a Kindle app.

    My preference is for non-DRM’d books from Baen. But I’ll buy from others with the knowledge that any DRM means I’m locked into that ecosystem without removing said DRM. I prefer DRM’d ePubs over Kindle books…AZW is mobi but I don’t think Topaz is used by many others.

  50. By the way, I advocate to rights holders granting technological rights more permissive than copyright — but ideally/only while creating market dynamics where your consumers cleave fairly close to copyrights and promotion of your market. But always better to err on more permissive than restrictive. (I suppose some may even disagree with preserving any individual ownership rights, but it’s already an expansive topic.)

  51. “Wait, what? In what way are you not locked into the Kindle ecosystem if you by DRM’d books from Amazon? You can’t read it in any other reader but a Kindle app”

    I see a vast difference between not being able to read a Kindle-formatted eBook purchased from Amazon on other devices and “locked-in” to the platform.

  52. “I see a vast difference between not being able to read a Kindle-formatted eBook purchased from Amazon on other devices and “locked-in” to the platform.”

    And, yes, that’s a slip — rather than “on other devices” that should be “in other apps.”

  53. “b) The kid didn’t lose his notes. Mind you, Amazon didn’t help him there.”

    Ha! Nice.

  54. b) The kid didn’t lose his notes. Mind you, Amazon didn’t help him there.

    Glad to hear that; I’d never seen the followup.

  55. To be more precise, Nigel, I would defined “locked-in” as having no other choice but to purchase the illicit $.99 cent version of “1984.”

  56. It’s not like Chris Dodd has it in his power to do me harm.

    He probably knows bureaucrats who would fuck with you just for the practice. You’re probably right though, that he wouldn’t call in a favor to get the IRS to persecute you. It would be trivial to put you on the no-fly list, though.

  57. Alex K: That’s not really a solution to piracy, but it is an interesting approach to copyright law more generally.

  58. “You can view this as an (overly?) simple implementation of @Alexander Gieg’s “copy-duty”: it says as a copyright owner, you have a “duty” to keep the product available. Disney decides that it’s too politically hazardous to make Song of the South available? Lose copyright.”

    And if you are the owner of the copyright but don’t have direct control of distribution? (Probably the majority of copyrighted works.)

  59. Pingback: It's Not Magic - More From The Internet Front

  60. @Tim F
    Copyright duty means people have limited rights to make (personal) copies if a work is unavailable. This right exists in many countries but should be modernized.

    There should also come a solution to orphan works that allows publishing all right with a “forced” licence.

  61. I heard someone comment that the problem is not so much people want to pirate content, but rather the way the would like to receive the content. If the Hollywood Money Men would look at the fact that folks would by a DVD or CD if they could load it on their smart phone and laptop and what ever other devices they might enjoy it on they would be more willing to purchase. Also as a side I have heard that Apple is getting ready to make it impossible to load any software other than what is approved by them on any of their hardware. If this is true do their customers now become the brain dead masses in the pews of their 1984 comercial?

  62. @Glendon Blount:

    Also as a side I have heard that Apple is getting ready to make it impossible to load any software other than what is approved by them on any of their hardware. If this is true do their customers now become the brain dead masses in the pews of their 1984 commercial?

    You’re talking about Gatekeeper, right? I’m guessing you aren’t a Mac user. Follow the link to get the correct story. The TL;DR is you can set the security level to one of three levels, the least secure of which is just what you have now: run applications from anywhere.

  63. IIRC there were a few documented cases where making content more available (cheaper, better distribution model) has severly reduced unauthorized copying of cupyrighted content (so called “piracy”).

  64. @Winter I disagree with the idea. What countries have it? I can think of many orphaned works that aren’t due to the creator but are due to a relationship with a distributor or market realities. As far as I can tell, you are suggesting that those creators no longer have recourse to profit from their work. I disagree with that.

  65. @Winter I would argue what you want goes far beyond even arguing against DRM and represents the ultimate entitlement. If Neil Young doesn’t want to offer digital downloads (he does but he hates the quality, just a hypothetical), that’s his priority. Or if the Beatles want to delay a digital transition for a particular anniversary (again hypothetically speaking after the fact). Or if a current artist has a dispute with their label and sabotages their own album in hopes of releasing it under their own vision when they make a label transition that supports them. Or if a modern-day Blake decides to self-publish only a limited edition of 500 printed works rather than an eBook. Or if a Jazz label can only remaster and reissue rare albums now out of print at a pace of 5-20 albums per year, leaving several great albums out of print for years, that’s their priority — not your entitlement.

  66. @Tim F.
    The Netherlands have a limited form. No country has an orphan works provision.

    In my country i am allowed to make a personal copy (on paper) of a work if it is not otherwise available. However, there are more legal restrictions wrt the reasons you might do that. As this has been in the courts only very rarely, I have no idea whether this provision has any practical use.

  67. @Winter More simply without hypotheticals: While greatest availability and permissiveness may lead to the widest audience, a rights holder has every right to restrain their own market and pursue a scarcity strategy if they so desire. End-purchaser’s expectations, hopes, sense of entitlement do not dictate to the rights owners how they must distribute and market their product.

  68. @Winter It seems very unclear if you are actually describing what I thought you were describing. Are you allowed to distribute an out of print album, movie, book? Or can you make a photocopy of a book that is out of print (or do you even need to have owned it, in which case it doesn’t come close to sounding like this notion of “duty”)? Does this only apply to text? Is there an equivalent for audio, visual, other media, and/or other intellectual works such as patents, trademarks, and non-creative use of copyright?

    Basically, I’m not really getting a sense that the rights holder has a duty to maintain an actively distributed form of the work or the people of the Netherlands get to do whatever they want with it, which is what I thought you were suggesting.

  69. @Winter: Maybe I was falsely conflating your comment with Alexander Gieg’s statement. But as far as I can tell, you are simply describing some fair use provisions of copyright. To me the word “duty” is suggesting some level of obligation placed on the rights holder that must be met to preserve those rights. Whereas what you are describing simply sounds like an end consumer’s fair use. Or at the very least, nothing as controversial or radical as what Alexander is describing. Would appreciate hearing more.

  70. You know I have never really been able to form a really good strong position on copyright. I think it is a pretty subtle thing. I find your letter very appealing in many ways, but, just to play devil’s advocate, let me ask you this.

    You claim that the Hollywood and the music producers are abusive in their contracts with artists. I don’t doubt for a second that that is true, though one man’s abuse is another man’s “reaping the reward of high risk investments.” But we live in a world where that no longer needs to be true. An aspiring artist can easily use the Internet as a distribution and advertising mechanism. No contract with nasty RIAA sponsoring jerks required. Although making a movie is a lot harder, that is possible too. And writing a book is certainly straightforward.

    There are certainly some things that these people have managed to lock up access to — movie theaters, Best Buy shelf space, concerts at the Rosemont Horizon — but really there are excellent reasons for all of these things, involving capital formation. And if you form the capital you have a lot of rights over what to do with it.

    So if these contracts are so abusive why is there not a nascent open source music industry that is kicking ass the same way Linux does in the back office? (Maybe there is and I am too mainstream Lady Gaga to know it.)

    Lets look at Eric in particular. You recently indicated that you are thinking about writing a new book. Are you going to sign up to an abusive contract with a publisher, or just type it up pdf it, and sell it through an on demand publisher through Amazon? No nasty contract required.

  71. @Jessica Boxer There are works released under creative commons licenses. I haven’t explored it too much but I satanic ubuntu distributes creative commons metal music along with its distribution.

    The music industry is a bit more complex than what you describe. It’s true that musicians have the tools do distribution and marketing on their own, but many don’t know how to do it. Others don’t have the temperament. Musicians’ expertise is music, not business. Even with the internet, it’s still not trivial for fans and bands to find each other. You can put music up on itunes, but that’s not going to do a lot of good if no one knows it’s there.

    There’s also more to the music industry than bands produce music; band releases a record. You need to find fans for your music. That means gigs, radio play, or demos. Unless you’re a studio band, you need to find ways to get gigs. If you tour, you need to find venues in other cities and then deal with a separate promoter for each city. And that’s all the simple stuff. Add in getting music onto tv shows and movies and you’ve just got yourself into the whole publishing deal. We’ve also completely skipped over all the contracts, trademarks, and incorporation of the band so everyone knows which band members have what sort of ownership over the songs, band name, etc. That’s why bands who want to do more than have a weekly gig at their local bar usually have at least one person who’s business minded and/or at least one person who’s rich enough to fund the band. If they don’t, they either give up or find a manager.

    Ultimately, there’s a huge difference between music and software. Software can be created through large scale collaboration. Music is generally created with a collaboration of only a few people. There’s no real similarity unless you want to stretch and start to talk about the techno scene where djs regularly remix music that’s already created.

    Musicians also have different attitudes towards their work. Some are proprietary and feel that they should get paid for for everything they do, This would be similar to software developers who prefer a proprietary model. Other musicians just want their music out there. This would be similar to software developers who give away their music. One of my roommates back in the days of Kazaa was all about distributing his music for free. He attributes his success to his decision to give away cds. The two different attitudes (I know there’s really more than two, but I’m trying to keep this as simple as possible) are represented across the full spectrum of success. You have well known musicians who don’t care if their music is leaked on Youtube and you have no name bands who worry about people stealing their music. If you want to go back, maybe you can look at the Grateful Dead’s attitude with regards to bootlegging as a version of OSI music.

  72. @Jessica
    I consider all IP as censorship. These laws give other people have a legal right to stop me from saying, writing, performing what I want, or how I use my own appliances in my own house.

    I understand it is all for the common good. But isn’t censorship always for the common good?

  73. >You claim that the Hollywood and the music producers are abusive in their contracts with artists.

    Yes. The music producers are especially bad about this, but Hollywood is notorious for creative accounting practices that generate paper losses on movies that do extremely well.

    >So if these contracts are so abusive why is there not a nascent open source music industry that is kicking ass the same way Linux does in the back office?

    Because nobody yet knows how to generate reliable revenue from music sales in the Internetted world. I mean nobody; the big labels don’t know how and the independents don’t know how either. There are partial solutions that work well for certain edge cases – established artists with extremely loyal fanbases, bands that are willing to tour a lot and use on-line sales as a kind of loss leader on their ticket prices – but there’s no general model that lets an unknown band go from garage to headlining without having day jobs that subsidize giving music away.

    In general, open-source models for art are ideological statements that don’t work very well economically. Open source works for software because there’s a natural market for downstream support; there’s no real analogue of that for music or writing.

    >Lets look at Eric in particular. You recently indicated that you are thinking about writing a new book. Are you going to sign up to an abusive contract with a publisher, or just type it up pdf it, and sell it through an on demand publisher through Amazon? No nasty contract required.

    I haven’t yet decided. I’m thinking about ebook-only self-publishing. But: (a) I don’t expect it to make a lot of money if I go that route, and (b) even if I did, I’m an outlier that makes me a risky example to emulate. I have an exceptionally large and loyal fanbase, much larger than most print authors and probably comparable to some pretty well-known musicians (a good comparison would be a niche musician with a solid reputation and a lot of mileage, like Joe Satriani). This means that if I’m aiming at some threshold level of return that justifies my time investment I can tolerate very low conversion rates and piracy much better than most authors could.

    So, why aren’t musicians at Joe Satriani’s exposure level and up willing to take the kind of risk I’m considering? Basically because their capital investment to produce is much larger than an author’s. All I need is a computer and time to think; Joe needs gear much more expensive than mine, sidemen, and studio time. He needs a much higher conversion rate than I do to pay off his production costs, which lowers his risk tolerance.

  74. > I consider all IP as censorship.

    I don’t think it is the same thing at all, particularly when it comes to copyright. The whole point is that if you “say” something that is identical to something someone else said, then in all probability you are simply copying them. Do you have the right to say it? Sure. Do you have the right to perpetrate a fraud by claiming that you originated the thought? Not at all. Do you have the right to profit from that fraud? No, certainly not. Do you have the right to say something, admit its origin, and profit from that? Well that is where my brain stops working.
    The nature of these types of materials is that they are easy to duplicate. If you create a song and keep it to yourself then it isn’t a problem. However, if you want to sell it, and consequently make the information more widely available, a traditional market doesn’t work very well (since they are mostly designed for non sharable items.) Copyright, I suppose, is a sort of default contract to allow that to happen. IF you buy a song in a legal domain that has copyright there is a sort of tacit agreement that you will accept this default license. Much like when you walk in a restaurant you don’t sign a sales agreement, but you still are obliged to pay the bill when you leave. If you don’t like that you are welcome to not participate. You are not welcome to make up your own rules.

    These laws give other people have a legal right to stop me from saying, writing, performing what I want, or how I use my own appliances in my own house.

    I understand it is all for the common good. But isn’t censorship always for the common good?

  75. > Because nobody yet knows how to generate reliable revenue from music sales

    Steve Jobs did.

  76. > Because nobody yet knows how to generate reliable revenue from music sales

    Oh yeah, and Jeff Bezos too. I think he can help you out with that book of yours too.

  77. >Steve Jobs did.

    Not with the qualification you originally made – that is, open source, no restrictions on redistribution.

  78. @Jessica
    What you say is still censorship. Lying and fraud are not the subject. If an artist paints a designer handbag to criticize Vuiton, she gets censored. That has really happened.

    But the main point is that censorship is censorship, whatever the reason.

  79. @Winter: There was an early court ruling in LV’s favor, but ultimately, the Court decided correctly and the censorship was lifted:

    http://eyeteeth.blogspot.com/2011/05/hague-rules-against-louis-vuitton-in.html

    “But the main point is that censorship is censorship, whatever the reason.”

    Well, no. Your point was that all IP (including copyrights) is censorship, not that censorship is censorship. I also don’t see how, even if successful, one rights holders particularly agressive interpretation of their IP rights remotely approaches all IP is censorship.

  80. Why should we coddle the liberal media who don’t repsect America? Let them use advertizing, and while they are at it, let’s drop this HDTV fiasco and return to regular antenna TV.

  81. > Not with the qualification you originally made – that is, open source, no restrictions on redistribution.

    I don’t know much about iTunes not being an “Apple person”, but if I write a song or album can’t I sell it on iTunes? Even if I can’t, I don’t see any technical reason why not, after all, I can write an app, which amounts to the same thing. For sure Jeff Bezos will let me do it with my up and coming block buster novel.

  82. > What you say is still censorship. Lying and fraud are not the subject.

    But that is like saying that trespass laws violate your right to free movement and association. Lying and fraud really are two of the key points (the other being profiting.)

    > If an artist paints a designer handbag to criticize Vuiton, she gets censored. That has really happened.

    Don’t confuse me with someone who thinks that ever nuance of the copyright law is correct. Absolutely, I think that people have a right to parody and criticize, though this bleeds a little more into trademark law, over which I have much more strongly he

    > But the main point is that censorship is censorship, whatever the reason.

    Not really. That is the problem with copyright, other issues bleed in. The question isn’t can you say it, but must you pay to repeat something someone else said first. There are indeed issues where copyright is used to prevent speech, and I am certainly opposed to those, but that doesn’t mean you can copy Eric’s book, claim it is yours and make money off it.

  83. @Jessica
    Ideas and sppech are not the same as land, bricks, and food. If I tresspass on your land, or steal, I exclude you from physical object. If I say, or write, or sing something in my own garden, that is not like I break into your house.

  84. @Jessica Boxer

    I don’t know much about iTunes not being an “Apple person”, but if I write a song or album can’t I sell it on iTunes? Even if I can’t, I don’t see any technical reason why not, after all, I can write an app, which amounts to the same thing. For sure Jeff Bezos will let me do it with my up and coming block buster novel.

    Absolutely you can put a song an album up on iTunes.You can also put the same album up for sale on Amazon, print and sell your own cds, Youtube, etc., etc. When you talk about open source model for music, I think there’s some confusion. My understanding is that open source with software means that the users of software have a right to the source code with only a nominal charge for it and have the right to modify the software however they please. With music this would be analogous to purchasers of music having the right to demand the sheet music, with only a nominal fee charged for the service, and have the right to create new works based on the music, e.g. cover songs or use samples.

    Or do you mean by open source model that what happens with open source in practice, that the software is given away for free as in free beer, should happen to music where artists should give it away for free and only charge for extra services, e.g. shwag, live concerts?

    Or do you mean that users should have the right to use the music they purchase on any platform they choose? I’m not sure what that would be similar to in the open source world, except that it harks back to one of the reasons for open source: you control your data.

  85. @esr

    Because nobody yet knows how to generate reliable revenue from music sales in the Internetted world.

    To be fair, most musicians don’t know how to generate reliable revenue from music sales offline either. Even well established niche musicians don’t make much more than enough to pay off a credit card bill every so often. Even with brisk sales, most bands aren’t going to sell enough cds to pay for the studio time, the hours spent, and the costs for a minimum run of cds. Lightscribe might change things a bit since local bands could just print their own cds, but that just means you sink time into the project instead of thousands of dollars.

  86. @Winter: You are using terminology even more crudely than any analogy to laws restricting physical objects. After all, the GPL and the most permissive form of CC are forms of IP rights restrictions. Are the GPL and CC licenses of censorship?

  87. @ esr

    As I read your letter, I felt a strong sense of deja vu. You didn’t make any overt threats, but as you made it clear that you were speaking for the people that make the Internet go, and how those people felt about being fucked with. You referred to the day of blackout by Wikipedia, et al. I felt an implied underlying threat –

    “You and your staff expect the web and email to work. If you continue to fuck with us, if you push us too far, we can make a lot more trouble than Wikipedia going black for a day.”

    Back when I was 18, 19, I was deeply into Ayn Rand. It may not be cool now, but from the stifling, “profits are evil” ’70s, when I read “Anthem”, it just blew me away. I read the other books. I was deeply into it for several years.

    Your letter (as I interpreted it) reminded me a lot of John Galts speech (in meaning, not style) – We are the ones who make the world run. If you push us too far, we can withdraw our services and you won’t like it.

    Who is John Galt? Hackers!

  88. Or, I guess it would be more correct to say, it reminded me a lot of the “strike” led by John Galt and his band of people that do actually make the world work.

  89. Winter says:
    > Ideas and sppech are not the same as land,

    C’mon Winter, you know me better than that. I didn’t say they were the same. The point I was making was a general right doesn’t over right a specific right. The right to control your property is not an insult to freedom of movement any more than the right to control what you create is an insult to free speech.

  90. @Winter, and of course no one is getting sued for singing a song in their backyard, or anything like it

  91. Patrick Maupin said:
    > Yeah, but only because suing the girl scouts is a major PR fiasco:

    So you are giving an example of how people don’t get sued for singing in their backyard, or are you claiming that they do but here just dodged the bullet? Society has many mechanisms for fixing the holes in laws, outrage is a powerful one.

    BTW, I find it hard to believe that I am defending the status quo here. The copyright law it royally screwed up. But that doesn’t mean that it is the same as censorship.

  92. >“You and your staff expect the web and email to work. If you continue to fuck with us, if you push us too far, we can make a lot more trouble than Wikipedia going black for a day.”

    Nah, that wasn’t in my mind. The overt threat I made was aimed at politicians: if you fuck with the Internet, we’ll toss you out on your ear.

  93. >>> of course no one is getting sued for singing a song in their backyard, or anything like it

    >> Yeah, but only because suing the girl scouts is a major PR fiasco

    So you are giving an example of how people don’t get sued for singing in their backyard, or are you claiming that they do but here just dodged the bullet?

    I’m claiming that the entertainment industry would quite happily collect royalties (via threat of litigation) on girl scouts singing in the wilderness, which is pretty darn close. Watching too large of a TV could be problematic as well:

    http://arstechnica.com/tech-policy/news/2010/01/will-your-big-screen-super-bowl-party-violate-copyright-law.ars

    Society has many mechanisms for fixing the holes in laws, outrage is a powerful one.

    Sure. But the point is that the outrage is required. The default for the bastards isn’t to be reasonable — they’re like the worst examples of little kids, always testing societal boundaries. Unfortunately, people suffer from outrage fatigue…

    BTW, I find it hard to believe that I am defending the status quo here. The copyright law it royally screwed up. But that doesn’t mean that it is the same as censorship.

    I wasn’t the one arguing that copyright law is same as censorship. But I’ll note that some of those benefiting greatly from copyright law would, in fact, quite happily use it for censorship if they thought that (a) they could get away with it and (b) it would improve their bottom line.

    I will also note that the ability to (theoretically) encrypt DVDs in a way such that they can’t be legally unencrypted even after the copyright period (theoretically — that’s not gonna happen any more) runs out is contrary to the whole copyright bargain.

  94. Nah, that wasn’t in my mind. The overt threat I made was aimed at politicians: if you fuck with the Internet, we’ll toss you out on your ear.

    No, I didn’t actually expect that it was…. the situation just resonated – a polite explanation that is actually a threat by someone representing the people who actually make the world work. I imagined the threat in a crude physical form, but, now at least, the political system can actually (sometimes) work properly and people will “throw the rascals out”.

  95. @Jessica
    But singing copyrighted songs in the pressence of an audience is still illegal. The fact you don’ t get sued doesn’t make it legal. You are at the mercy of the copyright holders.

    Deep down, censorship is curtailing what people can say and how they can say it.

  96. A little OT: Just curious what you think about the latest Linux interface holy-wars and “treacherous computing”. While it’s certainly not in the same league as DRM spyware or government mandates as to what your computer is allowed to do – after all you still have a choice, it’s still a little worrisome in terms of the attitude of some of the distribution developers towards their users and their setup.

    At work, I’ve been using Linux supercomputers with the gnome-2 shell and Redhat. While there are still things about Linux that are still rough edges IMO, there are other things that are really beginning to grow on me in terms of getting things done. The ability to invoke any installed program from the command line is pretty nice. The logic of the filesystem layout is beginning to make more sense. The ability to invoke all sorts of scripts as executables by referencing their various interpreters makes hacking together data processing easy.

    At home, I’ve been playing with Linux off and on (a Fedora-10 LAMMPS server, and Ubuntu desktop that I dual boot to occasionally).

    However, you warned me in time about Ubuntu forcing the unity interface on everyone. I managed to read that article before absentmindedly clicking the update popup that comes up every time I start – as a consequence, Canonical hasn’t randomly bricked my box. The fact that they would even want to force a complete rearrangement of my user interface strikes me as a bit on the treacherous side. While I still have a choice (not to upgrade, or to switch to a different distribution), I’ll always have to wonder if my setup will be there the next time I log in. After all, these guys are busy waxing eloquent about how anyone still stuck on the gnome-2 shell is being a stubborn recalcitrant ox who doesn’t know what’s good for him! (Yay software freedom!)

    I *like* the gnome-2 interface, but both Fedora and Ubuntu are telling us we can’t have it anymore. They could take a lesson from Windows – every damn thing on Windows since NT has been (mostly) backwards compatible. Microsoft has actually bent over backwards to make sure this is the case – ensuring every crazy pointer-walk stack-hack from every two-bit piece of software can still work on some bizzre emulation layer. (How long this will remain the case is up in the air). Linux doesn’t even have an excuse – the basic APIs (for the x-terminal server, for the unix environment) have been extrordinarily stable, and all their software is regularly recompiled from source. So why can’t I have my old un-hip unfashionable desktop shell? What is next? Will all my scripts break when they decide no one needs Python 2.7 anymore?

    (/dev paranoia)

  97. For that matter (and I may be speaking from ignorance here – maybe it isn’t that simple, maybe it’s already possible) – why can’t we have every linux interface on a single distribution to choose from, along with all associated customization utilities? My hard drive is arbitrarily large at this point. It would be nice to be able to play with their shiny interfaces without having to give up the previous ones.

    Distro Developers: Hey look at this shiny new thing! And we’ll even allow you to try it from some virtual machine, or seamlessly with your existing system.
    Me: Awesome!
    Distro Developers: Hey look at this shiny new thing! Unfortunately you’ll have to replace your system to use it.
    Me: Meh – maybe later, on a spare, when I have a free weekend.
    Distro Developers: Hey look at this shiny new thing! We’ll push it to you out of the blue in the next update. You won’t be needing (thing you actually use) anymore. Also, you can’t log-in as root – instead we’ll make your default password the root password. Also, you should only install software from approved open-source sources.
    Me: What?! Hey! Not cool! Get out of my box, fiends!

    (grumble-grumble-grumble)

  98. For that matter (and I may be speaking from ignorance here – maybe it isn’t that simple, maybe it’s already possible) – why can’t we have every linux interface on a single distribution to choose from, along with all associated customization utilities?

    Asking for every desktop environment is a bit of overkill, but openSUSE has top-level checkboxes for GNOME, KDE, and Xfce, and you can still even install KDE 3.5 if you want. Fluxbox, enlightement, and other lightweight WMs are right there in the package manager, too.

  99. Patrick Maupin on Sunday, February 26 2012 at 1:07 am said:
    >I’m claiming that the entertainment industry would quite happily collect royalties (via threat of litigation) on girl scouts singing in the wilderness

    I’m sure they would, however the question isn’t would they but can they (factoring in all the mechanisms of society not just law)? Regardless, whether the present law allows it or not, it is plainly stupid. I don’t know for sure but I suspect that that is why restaurants stopped singing happy birthday and substituted the various dumb ass alternatives, because as you may know “Happy Birthday” is a copyrighted song.

    >I will also note that the ability to (theoretically) encrypt DVDs in a way such that they can’t be legally unencrypted even after the copyright period (theoretically — that’s not gonna happen any more) runs out is contrary to the whole copyright bargain.

    Don’t agree at all. Just because you eventually have the right to copy it doesn’t mean anyone is obliged to make it easy for you.

    Winter on Sunday, February 26 2012 at 3:24 am said:

    @Winter
    >Deep down, censorship is curtailing what people can say and how they can say it.

    Sure, but the very nature of this discussion is not preventing people saying something, but preventing them from saying it again, that is to say, copying what someone has already said. Lets not get lost in the weeds with the details of the particulars of one particular implementation. There is a broader question here which is to what extent do we allow content creators to control that which they have created. Just because the present bargain is screwed up doesn’t mean that it is reasonable for me to take all the work that the songwriter did use it without just compensation. The bargain might be wrong, but that doesn’t mean a bargain isn’t a reasonable expectation.

    Again, I think it is funny that I am arguing a pro IP position, as many of you know I am a huge opponent of IP for the most part.

  100. @Jessica Boxer
    >Or do you mean by open source model that what happens with open source in practice…

    No, I was being sloppy with my words. I was really more thinking of a bazaar type model for the production of art rather than the more traditional cathedral model. People just creating and moving their own songs, movies, music, books from the bottom up rather than “signing a record deal” top down approach.

    I think the parallels are not without merit. I get ESR’s point about capital investment, but really you can produce some pretty awesome music with a few instruments and some decent software. Maybe not at the levels the studios can, but close enough that you can’t tell the difference on your iPod.

    You’d certainly get a different type of music culture and art, but is that a bad thing really? After all, Sturgeon’s law applies here, both to studio produced music and garage bands. Maybe 99.9% of garage band music is crap, but there sure is a lot more of it than the fodder for radio play, and 0.1% of a lot is still quite a lot.

  101. @ams

    I *like* the gnome-2 interface, but both Fedora and Ubuntu are telling us we can’t have it anymore.

    You would enjoy Cinnamon which is a fork of Gnome Shell. The user experience is very similar to Gnome 2. It’s still in the alpha stages but it’s very usable at this point. The developers, who are the same people behind Mint. are focused on providing choices to the users.

    @ams

    why can’t we have every linux interface on a single distribution to choose from, along with all associated customization utilities?

    I almost have this with Mint, which is based on Ubuntu. On my main distribution I have Cinnamon, Gnome Shell (with MGSE extensions), Mate (a fork of Gnome 2 that is compatible with Gnome 3), Gnome Fallback, and Unity (which I added on myself for theme testing purposes and does not normally come with the distribution). If I need to I can switch among Cinnamon, Gnome Shell, and Unity without logging out.

    Mint also comes in KDE, Debian, XFCE, LXDE, and Fluxbox flavors. Of course, you can always add these desktop environments to the main distribution if you really want to since you have access to the Ubuntu repositories but you will have a cluttered applications menu since you’ll have all the applications from multiple distributions on the same menu.

  102. @Jessica
    The rights you want granted to the artist have little if anything in common with copyright law.

    Copyright law has always been about controling printers and publishers. It has been extended to control all distribution channels.

  103. “It has been extended to control all distribution channels.”

    So you’re first statement is wrong: “Copyright law has always been about controling printers and publishers.” Copyright law was only about controlling printers and publishers prior to the invention of other media. As soon as recorded sound, images, and video emerged, copyright began evolving to adjust for the evolving media and has been doing so for virtually as long as it was focused on printed material.

  104. @Jessica Boxer:

    I don’t know for sure but I suspect that that is why restaurants stopped singing happy birthday and substituted the various dumb ass alternatives, because as you may know “Happy Birthday” is a copyrighted song.

    That’s my understanding. It’s also my understanding that the copyright on the song, like the copyright on Mickey Mouse AKA Steamboat Willie, is quite suspect:

    http://www.plagiarismtoday.com/2009/08/13/a-happy-birthday-for-who/

    Just because you eventually have the right to copy it doesn’t mean anyone is obliged to make it easy for you.

    I don’t want them to make it easy. I just want them to make it legal. Not sure about current status (registrar of copyrights, various court cases, etc.) but when the DMCA first came out and was challenged by 2600 magazine, the ruling seemed to indicate fairly clearly tht anybody offering to decrypt such a thing for a third party could be in a heap of trouble.

  105. @ Jessica

    Note: every time below where I say “seems to” or “I believe”, I am just trying to avoid slander. Am I being too paranoid?

    I believe that Winter’s position that “all IP [is] censorship” is nuts. I assume that it’s not that he is a little child that doesn’t understand the words. So… it seems to me that either he is nuts or he is engaging in sport with you; he doesn’t seem to be rationally discussing or arguing.

    In my limited time on “Armed and Dangerous”, I have noticed this happening over and over, you going back and forth with winter – winter defending a position that seems to be nuts and you trying to convince him that he is wrong.

    If you enjoy this, there is certainly nothing wrong with it. You know him better than I do. If it was me, I would be interested in whether
    he is nuts
    he is engaging in “logic sport” (with leaky logic)
    he is actually trying to carry on a rational discussion

    I always seem to get the impression that number 1 is in operation.

    On a different issue, I like your:

    I was really more thinking of a bazaar type model for the production of art rather than the more traditional cathedral model.

    Much of society has been changed by the Internet, but I think that we have barely seen the beginning. The Internet just makes anything that is primarily a matter of data/information transfer so much easier for individual people. Discount online security brokerage, banking online at home, finding cheap airfare, print-on-demand books, and one of my favourites: easily acquiring specialized knowledge about the disease my doctor mentioned or a drug that he prescribes. It’s great.

    Now the discussion is about art, which is usually (sculpture not included) data. The way the game is played has already changed, but mostly for consumers. As you suggest, the ways artists can do their (data) thing, could change a lot.

  106. @Jessica Boxer

    No, I was being sloppy with my words. I was really more thinking of a bazaar type model for the production of art rather than the more traditional cathedral model.

    That’s been around for a while. Bands have always produced their own demos and sold them at shows while trying to make it. I agree with you that it’s a lot easier now for bands to reach a wider audience. The barrier for a band to set up its own indie label is a lot lower now. You may not be aware of the current bazaar model because it’s still hidden behind cathedral terminology. Bands who self-produce and distribute create an indie label which may really just be a collection of their projects. If you’re not a fan, you may never know that a band you hear on the radio

    I think the parallels are not without merit. I get ESR’s point about capital investment, but really you can produce some pretty awesome music with a few instruments and some decent software. Maybe not at the levels the studios can, but close enough that you can’t tell the difference on your iPod.

    Actually, a lot of professional producers work out of their home. A lot of bands have professional level equipment in their home. I haven’t looked at the numbers lately, but if you know what you’re doing you’re probably looking at maybe a range of $1000. Maybe a little less or maybe a little more depending on how diy you want to be. Of course, “know what you’re doing” is key. In practice bands who do rock gigs usually end up with enough equipment to record because there’s a point where they have to provide their own sound equipment at gigs. They still work with a producer for the producer’s expertise to coach them to get the sound right and to make it mix well.

    The problem isn’t even really the investment in equipment. The line between studio band vs garage band is blurred. Labels provide varying level of support. Some labels are just branded printing presses. Other labels provide full level artist management. The real problem is that bands don’t know how to get potential fans to discover their music. Some of that is temperament, e.g. the bands will never want to do the work that is necessary to achieve their goal. Most of it’s lack of knowledge. You may not be aware of how much peer to peer help happens unless you’re a devoted fan of music and/or have the opportunity to talk directly to bands about their experiences.

    Right now the traditional distribution and fan discovery models, i.e. labels, radio, tv, and music stores, have been disrupted and nobody knows how to replace it. This is both a problem for fans, who want to know about bands they would enjoy, and for bands, who want to reach potential fans. Labels, in a broad sense, are supposed to be the intermediaries for band/fan discovery. The formal problem is this: For every band X, there exists in a given population a set of fans Fx={x(1), x(2), … ,x(n)}. For fan Y, there exists a set of bands By = {y(1), y(2), …, y(n)} such that if Y were to know about y(i), Y would be a member of Fy(i). Is there away to make sure that for every band X, there are no fans Y such that if X is in By, Y is also in Fx. Whoever solves that problem will have the “killer app” for labels. There have been attempts, e.g. Pandora, Grooveshark, Reverbnation, Myspace, etc., etc. but nothing that has been completely successful. Every other piece of the music puzzle has been solved and can be done by the bands themselves if they so choose.

  107. @ arms re: new gnome

    For many years, I have been happy with Redhat and then Fedora running Gnome.

    I had to update and I really hate the new Gnome.

    I am very happy with Fedora 16 running XFCE. Some people say that it is ugly and crude. Sure, the windows all have square corners, but to me, that is of no importance whatsoever.

    You might want to consider XFCE on whatever distro you like.

  108. Is there away to make sure that for every band X, there are no fans Y such that if X is in By, Y is also in Fx

    should read

    “Is there a way to make sure that for every band X, there are no fans Y such that if X is in By, Y is not in Fx”

  109. @Brian Marshall
    > I believe that Winter’s position that “all IP [is] censorship” is nuts.

    Just to be clear, I don’t think it is nuts at all. I don’t agree with it, but I come very close to agreeing with it. I think a revulsion to the government stepping in to control what people can do with information is a very healthy thing. I think he goes a step too far down the path, but I am standing on the same path not too far behind him.

    It is certainly the slippery slope, but everything the government does is the slippery slope. We have to deal with that reality and follow that Jeffersonian rule: “The price of liberty is eternal vigilance.”

  110. Oh, and in my reply to Jessica, my first paragraph

    If you’re not a fan, you may never know that a band you hear on the radio

    should have finished

    “If you’re not a devoted fan, you may never know that a band you hear on the radio are on their own label.”

  111. Joe Presley
    >Right now the traditional distribution and fan discovery models, i.e. labels, radio, tv, and music stores, have been disrupted and nobody knows how to replace it.

    You obviously know what you are talking about, and I don’t, but that never stopped me before but I know how to replace it: Twitter, facebook, reddit, google, yelp etc.

    Crowdsourcing I believe is the term the kids are using.

    Of course it doesn’t always produce the same results, but the bug might be in the original system not the new one.

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  113. @Jessica Boxer

    You obviously know what you are talking about, and I don’t, but that never stopped me before but I know how to replace it: Twitter, facebook, reddit, google, yelp etc.

    Those are useful but it’s not trivial a trivial task to manage the social networks. One big problem is social network fatigue; there’s only so many social networks a person can conveniently manage. Then once you have your snazzy social network pages, how do you actually get people to know that you’re there? Once you have the eyeballs, you then have to somehow convince the fans to take action, i.e. spread the word, buy the merch, come to the show, etc. There’s a new jobs called social media manager to do that for people.

    You’re correct though that all of it is an attempt to trigger crowd sourcing. There’s a term called “superfan” which is the type of fan who will essentially do your marketing for you. The goal is to turn “opinion makers” into superfans. If you think about your own group of friends you’ll see that there’s a few people who decide what to do and everyone else follows.

    A lot of bands are already doing that and have some varying level of success. You just don’t hear about it because they’re part of the long tail that most people are never going to know about unless you’re inside a particular bubble. That is a symptom of the problem. Technology has in many ways made the process of discovery more difficult because the crowd has balkanized.

    If you liked underground music, there used be no alternative except to go to local shows, go to the local record store, or listen to college radio. At the local show you’d discover all the other people who enjoyed similar music. Heck, you may not even enjoy the music but as a kid there was nothing else to do. When the internet developed, you then had one mailing list, one website, maybe one irc channel, and maybe a newsgroup. Still very easy to manage and everyone knew about the central community portals.

    Then Livejournal, the rest of Web 2.0 and snazzy entertainment tech came along and upended that model for alternative discovery to the mainstream media. Now people have self sufficient groups that limit discovery outside of the local social bubble. Instead of central communities people interact only within their social group. It’s a lot harder to push music to a whole bunch of separate, smaller social nodes than it is to push music to a few central points. Plus, people have all sorts of alternatives for entertainment, e.g. video games, a bazillion channels on tv, etc., etc. They don’t need to go to the local record store or local shows to consume music because they can buy everything off of the web. Because of the balkanization caused by the social web, they don’t even know exist that there are ratty whole in the walls where they can discover new music and a lot of local record stores have died off.

    So in some ways, it’s good that you can have success outside of the mainstream media channels. On the other hand, the technology that disrupted the mainstream media also disrupted the alternatives to the mainstream media. The difficulty a lot of bands run into is that there are too many alternatives that require a lot of work for only small short term payoff. Tools such as Pandora, Grooveshark, Spotify, and Last.fm are all interesting attempts to solve the problem but we’ll see if they have staying power.

  114. And if you’d like to discuss some ways of fighting piracy that don’t involve trampling on us and our users, we do have some ideas.

    Eric, Is this worthy of a post? This is an interesting thought in a space where A) OSS generally excels (maintaining software security through strongly tested protocols not obscurity) and B) OSS is currently coping a bit of a hiding .

    The problem that I keep getting stuck on comes down to, when all else fails, you can’t beam the media directly into the user’s brain. At some point you have to send it to a video or sound card and at that point you’re screwed. HDCP was a nice theory but the theory was flawed a good 4 years before computer monitors appeared before it and lasted only 6 years before being confirmed broken.

    So i suppose the question comes down to, How does Alice’s Musical Association send music to Eve in such a way that Eve has all the control in the world but can’t send the file to Bob? Even knowing that the Cathedral hasn’t covered itself in glory on this matter either, how would we solve this in Bazaar-o world.

  115. Wow! It’s a shame that Chris Dodd will never realize what you just offered to him on a silver platter. Amazing how dumb people can be and WE elect them into office over and over again.

  116. It is amazing reading this letter and the responses at how little people know about their government.

    “Hollywood is Pro-Internet” as an argument given to a person you think is still in office, but who is now the head of the MPAA, is comedy at its finest.

    Tip Jar? Here is a tip to the author: try reading a newspaper or an online news site once in a while. Read several perhaps. But when you pen a note to someone in office, the first thing in your research should be seeing if they are actually still in office.

  117. “I believe that Winter’s position that “all IP [is] censorship” is nuts. I assume that it’s not that he is a little child that doesn’t understand the words. So… it seems to me that either he is nuts or he is engaging in sport with you; he doesn’t seem to be rationally discussing or arguing.”

    A comment of mine seems to be hold up somewhere.

    Two points:
    1 You might not realize how badly your ideals about artist recompensation match the realities of “IP” law.

    2 The practice of Censorship is distinct from whether it is morally just. You seem all to assume that it is only “Censorship” if you disagree with it. Censoring people can be done with the best of intentions, and might even work out for the well being of all. (eg, libel and slander, privacy issues, certain illegal materials)

  118. Excellent article. Like JonCB I would be interested in hearing your ideas on fighting copyright infringement.

    I produce intellectual property for a living and so am interested in the problems technology introduces in this area.

    However I’m convinced all it takes is some out of the box thinking on business models and we can have a win win for everyone.

    I want to pay for the entertainment and IP I consume, but I also want it too be good value for money and I want to be able to consume that entertainment/IP when, where and in whichever format I want, but most importantly I want to do it legally and in a way the content producers get paid!

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  120. A very useful commentary — starting to rise in political circles if my barometer is right.

    An early comment reveals the real nature of the Internet as a symbiotic relationship between a community of people, computers and communications systems … real food for thought in the implications of that. A later note indicates “we built the Internet…” — more accurately “The Internet has evolved…” — there is an organism here, one that

  121. Nicely said. Are you now done with that other matter you were exclusively committed to, or have you found that this fight is a part of that one?

  122. @Winter:
    > 1 You might not realize how badly your ideals about artist recompensation match the realities of “IP” law.

    But just because a present implementation has many bad features doesn’t mean that the underlying principle is wrong.

    > 2 The practice of Censorship is distinct from whether it is morally just. You seem all to assume that it is only “Censorship” if you disagree with it.

    I challenge you to find a place where I made any such claim. You will find a place where I said that you defend the city walls so you don’t have to defend the King’s bedroom.

    >libel and slander, privacy issues, certain illegal materials

    And do you think that it is legitimate for the government to criminalize, or make tortuous these activities? If so you concede the principle under which I would say they also have a right to get the law involved in copyright too.

  123. It is good to see a pioneer of the FOSS movement and great men like Vint Cerf speaking out against the outrages that are bestowed on the Internet – I salute you for holding the banner high and letting people know your true colours in a time where things are difficult at the very least. I can only concur and add as has been said before – All that is necessary for evil to triumph is for good men to do nothing

  124. >But when you pen a note to someone in office, the first thing in your research should be seeing if they are actually still in office.

    I wasn’t confused. This was an open letter; the intent was for politicians still in office to see it as well.

  125. Well said.
    Too bad Mr.Dodd probably won’t understand any of it.

  126. Eric,

    Mostly this is terrific. I agree with at least 90% of what you say, and as someone who devotes a lot of my career to building open Internet standards, I’m very grateful for you having published it.

    One significant concern I have is your claim, explicit and implicit, that you speak on behalf of all the many technologists and geeks who work to build and defend the Internet. You don’t. You no doubt speak for many, and as I said above, to a significant extent you speak for me, but I’m sure there will be many thoughtful dedicated contributors to Internet technology who disagree with at least some of what you write.

    In over-reaching, and in failing to state more carefully whom you do and don’t represent, you weaken your case. If you had merely said: “I have spoken to and reviewed this note with many, many of the technologists who build the technology of the Internet, including many who are famous or influential and many others who aren’t; almost all of them have expressed strong support for what I write here” your note would be both more appropriate and more convincing.

    Again, thank you for having posted this note. Let’s hope it has some good effect.

  127. @Jessica Boxer

    How is censoring information (unauthorized copies, for instance) not censorship?

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  129. And some people called Atlas Shrugged polemic! But it is all true. It will be completely lost on politicians however who live by one of Ms Rand’s most despised tenants: “In a compromise between good and evil, only evil wins”.

  130. Dang, esr, this letter is much too elevated for the senator to be able to understand!
    He would only understand a plain-old ultimatum… the old fart trying to control our internet…

  131. If perhaps the Senator won’t read this, perhaps we who do might copy and paste this into various more widely read fora? With proper attribution. We need WSJ coverage not just /.

  132. @bigolbiggy
    > How is censoring information (unauthorized copies, for instance) not censorship?

    By not assuming our conclusion.

  133. >One significant concern I have is your claim, explicit and implicit, that you speak on behalf of all the many technologists and geeks who work to build and defend the Internet. You don’t. You no doubt speak for many, and as I said above, to a significant extent you speak for me, but I’m sure there will be many thoughtful dedicated contributors to Internet technology who disagree with at least some of what you write.

    This is worth a blog post. Coming up shortly.

  134. JonCB and James Wright, you may or may not have realised that “fighting piracy” does not automatically equal “fighting pirates”. That is, it is entirely possible to remove the incentive to copy by a better offering for the right price. Even against a “free” offering.

    The usual reflex is that monkey (politician, industry lobbyist, etc.) sees something it dislikes, so monkey wants it banned. But that’s actually often the most expensive option, for it means enforcement, control, all that. Instead take a good look where the deficit is in what you’re offering. Maybe you’ll have to drop the price (cds and dvds are actually quite a lot overpriced, have been for years, and it gets worse in developing countries), maybe you’ll have to quit delaying releases geographically, maybe you’ll have to change the model radically, maybe you need to publish some actual music again, whatever. I’ll leave finding examples as an exercise; there are ample to be found. Point is, they’re not even trying.

    Really, the idea you have to wage war on the things you don’t like is the root of the perception problem. The big corporate “victims of piracy” ooze entitlement and self-righteous indignation. They lack focus on their customers. And for that last bit alone, especially in Capitalist America[tm], they deserve to go bankrupt. Pity about their worker bees, the artists, though.

  135. Here’s a couple who produce recordings out of their home.

    http://www.pomplamoose.com/

    They seem to have a lot of friends. I have no idea how well they do financially, but one of their recordings was used as background in a Toyota commercial.

    http://en.wikipedia.org/wiki/Pomplamoose
    http://www.theatlantic.com/entertainment/archive/2010/05/yeah-toyota-may-be-having-those-accelerator-problems-and-all/39788/
    http://www.google.com/#hl=en&gs_nf=1&cp=5&gs_id=i&xhr=t&q=pomplamoose&pf=p&output=search&sclient=psy-ab&pbx=1&oq=pompl&aq=0&aqi=g4&aql=&gs_sm=&gs_upl=&bav=on.2,or.r_gc.r_pw.r_qf.,cf.osb&fp=5bd2cb753ca5deb7&biw=1136&bih=835

    No, I am not a shill.

  136. Thank you. You have added clarity and focus to my feelings of resentment and discontent regarding this subject. You have also given me hope that the slow, steady grinding away of our dignity, our rights and our freedoms may ultimately fail, or at least never completely succeed. As long as there is an uncensored path of communication there is the hope that truth will out, that the egregious acts of those with power will be exposed and that some degree of justice may be found. I always seek to do what is the right thing; now that I better understand the issues I will do what I can to help.

  137. If they want to call it Intellectual Property then have it taxed like property. Don’t want to pay the tax, then it becomes property of the government which would make it fall into the public domain. Have the owner declare the value. The higher the value the higher the taxes. Have “theft” values limited to a percentage of the value declared. Have an online site with all “Copyright” information escrowed. No item filed, no copyright. Makes everything easy to check and verify.

    Please note, make a clam something is your when it is not, then that is a fraud. If a corporation make a fraudulent claim then the directors are liable for fraud and should be jailed for it.

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  139. @Tim F. – you said the following: “(1) rarely (if ever?) does the “good faith” of the end-purchaser grant ownership of an illicitly-acquired good/product/service/ or intellectual property/right/whatever//media (it may be permitted or compromised civilly, but is there any basis for actually assuming a right to ownership if improperly transferred but “in good faith”?).”

    The problem with your argument is that while you are correct that someone who acquires something improperly may have to return it, there is a legal process required in which the individual who claims ownership must a) prove ownership, b) show cause to have it returned. In the case of a criminal case, there are still forfeiture hearings related to the seizure of materials unless they are explicity illegal (e.g., illegal drugs). In this case, had it been print copies of “1984″ and “Animal Farm”, the publisher who owned the rights would have had to get a court order to reclaim the unauthorized copies; instead, the equivalent action to what happened is that they forced the bookstore that sold the copies to BREAK AND ENTER INTO PEOPLES’ HOUSES to retrieve the book, and then mail them a check after the fact.

    You also say that some people would think that the Kindle incident was one where DRM worked exactly as intended. If you think that’s an acceptable use of DRM, I think that’s an example of why most people hate DRM. There’s an old expression that says “Your right to free speach ends at my ear.” You certainly have the right to tell what restrictions I have to agree to in order for you to give me something; I may or may not agree to them, but if I know what they are in advance I can make an informed decision and choose to accept or not. However, once I accept the rules, and you give me what you said you would, your right to change them or otherwise tell me what to do with it beyond what was agreed to should stop. With DRM, it doesn’t matter what we agreed to, you have the ability to FORCE me to do something different whether I agree to it or not, and I have no recourse or compensation if your changes make what I paid for unuseable or otherwise unsuitable for my purposes.

    That’s not to say DRM can’t be used properly and ethically, the problem is that there’s no way to enforce ethics, and thus DRM can and will be used to the detriment of the consumer at some point. In a perfect world we wouldn’t need to worry about how DRM was used. Then again, in a perfect world, we wouldn’t need DRM either…

  140. +1 for Drew Sullivan’s suggestion. I love that idea — it points out the obvious flaws in the MAFIAA’s current desire to have their cake and eat it too w/r/t copyright enforcement.

    And the fake DMCA requests are RIDICULOUS. I have had to deal with careless DMCA takedown requests on youtube at a former employer (we had legal rights to use a song…but the hired muscle the people we licensed it from didn’t bother to check that first).

  141. “If they want to call it Intellectual Property then have it taxed like property.”

    Revenue earned on IP is taxed.

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  144. @Jessica Boxer

    But how can you enforce copyright without effectively utilizing censorship?

  145. @ Winter and Jessica

    I apologize for saying that Winter’s position that “all IP [is] censorship” is nuts, and for questioning why Jessica would bother arguing the point. After some thought, I decided that it wouldn’t hurt to look in the dictionary.

    I was taking a narrow view of censorship, wherein the government attempts to prevent some knowledge or ideas from spreading in society, including, for example, obscene material, insults to the rulers, information on how to grow dope, and, in general, anything that the government doesn’t want floating around in society. This definition does not intersect with IP.

    However, on Dictionary.com, there was a more general definition wherein the government uses its power to try to prevent or suppress some form of communication – a much broader definition that includes, for example, slander. This definition of censorship does intersect with IP.

    Should slander be a tort? I am afraid that I am too tired to analyse that right now.

  146. @Tim F.:

    Revenue earned on IP is taxed.

    Sure, but in most states real property and business property are both taxed whether whether earning money or not. (But intangible property like patents and copyrights aren’t.)

  147. I wrote:

    > One significant concern I have is your claim,
    > explicit and implicit, that you speak on behalf of
    > all the many technologists and geeks who work to
    > build and defend the Internet. You don’t. You
    > no doubt speak for many, and as I said above, to a
    > significant extent you speak for me, but I’m
    > sure there will be many thoughtful dedicated
    > contributors to Internet technology who disagree
    > with at least some of what you write.

    Esr replied:

    > This is worth a blog post. Coming up shortly.

    Thank you, I look forward to it!

    One other point occurred to me: I think you missed an opportunity to drive home more clearly that even if we wanted to, we typically don’t have the technical means to limit or censor the Internet without simultaneously breaking it in ways that almost everyone agrees to be undesireable. Attempts to mess with DNS registries tend to have unintended consequences, etc.

    I think it’s really important to make this point strongly, because even those who who may believe that tighter limitations are desirable need to understand the unintended costs that are almost sure to follow. Indeed, I think it’s fair to say that among the main reasons “we” won round one on SOPA and PIPA is that the community came to have at least a vague sense of the likely scope of such breakage. I think it’s a compelling point to make, and one that tends to carry weight even with those who have differing “world views”

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  149. >But how can you enforce copyright without effectively utilizing censorship?

    By using a definition of “censorship” that doesn’t assume your conclusion.
    Censorship is essentially about the government preventing people from saying things it doesn’t want said.
    Copyright is about ensuring the originators of a work get paid for their efforts by making it tortuous to do so without a valid license.
    You can call anything you like “censorship,” but if you want to have a discussion with me, we need to have a shared view of what the word means, and we evidently don’t.

  150. “Sure, but in most states real property and business property are both taxed whether whether earning money or not. (But intangible property like patents and copyrights aren’t.)”

    Sure. And land is a fairly unique form of property. It is serviced by the government. But there is no rational argument to say that IP behaves like land. Or simply that is more like land than another form of property. Again, DRM-haters are acting completely afraid of technology or somehow trying to fit it into an old world analogy that doesn’t make any sense.

  151. In my view, copyright enforcement isn’t inherently a free-speech issue, but the danger of copyright enforcement procedures being misappropriated for the suppression of free speech is a real one.

    By the way, Jessica, hilarious choice of avatar.

  152. “Again, DRM-haters are acting completely afraid of technology or somehow trying to fit it into an old world analogy that doesn’t make any sense.”

    It’s not really fair to say that DRM haters are acting the way they are out of “fear of technology” — in the past few years, DRM has more than shown all of us that it is a cumbersome inconvenience even for legitimate users (almost EXCLUSIVELY for legitimate users…since a pirated version would more than likely do away with DRM beforehand). Not only that, but there have been many successes with people who choose to not go the DRM route at all, and instead accept that there will be an element of piracy / illegitimate use in addition to legitimate users.

    In fact, I would go so far as to say that people that it is the PRO-DRM that are the ones “afraid of technology,” simply because they are curmudgeonly refusing to adapt to a changing marketplace, and instead employing medieval restrictions on their products to force consumers to use the product the way that THEY want you to (which kind of disenfranchises the consumer), creating devices and products that are like the ones mentioned in the OP (re: “treacherous computing”).

    With as fast as technology is changing our world, the knee-jerk, yet arguably immature, reaction is to tightly hold on to what is familiar and known; alternately, you can embrace the change and explore what it has to offer and capitalize on that.

    In a related note: There’s a poopstorm going on elsewhere on the Internet right now, regarding “Rumblefish” (the content licensor for music artists) and how they not only inappropriately claimed ownership of someone’s video that contained no music, only birdsongs, but also re-affirmed that claim after it was contested. I have dealt with them personally before and this doesn’t surprise me in the slightest. They are struggling to keep up with the level of content being added to Youtube every day and so the process is automated, to the detriment of producers that are false positives.

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  154. Max E.
    >By the way, Jessica, hilarious choice of avatar.

    Thanks, I was inspired by our friend Morgan Greywolf.

  155. JonCB and James Wright, you may or may not have realised that “fighting piracy” does not automatically equal “fighting pirates”. That is, it is entirely possible to remove the incentive to copy by a better offering for the right price. Even against a “free” offering.

    I don’t disagree and the research i’ve seen certainly backs this up. But hollywood isn’t going to hear that, they’re certainly not going to hear it from a technologist.

    As I said, this IS a difficult area for security to deal with and the guy from Netflix has laid down the gauntlet saying that open source can’t do it. That the only solution is a closed source component.

    Note the parallels here with the “case of the quake cheats” essay from 1999. I’m not really interested in “how to do DRM right”, i’m interested in “what security guarantees can you make when you can’t trust the client”.

  156. @Tim F.:

    Sure. And land is a fairly unique form of property. It is serviced by the government.

    As I pointed out, individuals are familiar with property taxes because their land and buildings are taxed. But businesses usually have almost all their property taxed.

    But there is no rational argument to say that IP behaves like land.

    Many here agree. Although most of those think that “IP” shouldn’t be considered “P” at all.

    Or simply that is more like land than another form of property.

    Again, most business property is taxed in most states. You seem to be studiously ignoring this.

    Again, DRM-haters are acting completely afraid of technology or somehow trying to fit it into an old world analogy that doesn’t make any sense.

    This is absolutely the most twisted thing I’ve read here in a long time, unless you mean it’s the DRM lovers who are afraid of technology or trying to fit it into an old world analogy.

  157. It sounds like a lot of these comments and some of the original blog were written by the nerdy kids at high school who had to suffer through watching the MPAA darling-types like Tom Cruise and Brad Pitt getting all the girls… we’ll sho ’nuff fix them.

    BTW I like the moniker “Sex, software, politics, and firearms. Life’s simple pleasures…” however I would just stick with sex — the others can cause ulcers.

  158. @Jessica Boxer:

    Censorship is essentially about the government preventing people from saying things it doesn’t want said.

    Copyright is about ensuring the originators of a work get paid for their efforts by making it tortuous to do so without a valid license.

    First, a digression: in its strictest form sure, censorship is a form of negative relationship between a government and one or more individuals under its authority. But this strict definition can be generalized to involve not only a government, but anyone in a position of force over someone in a position of weakness, thus becoming something like this: “censorship is some A preventing some B from expressing C by treat of violence”. As such, when, let’s say, a crime lord tells your to shut up about something “or else…”, it’s censorship, no matter that a government isn’t involved. Now, a counterpoint to this definition might be to argue that censorship necessarily involves, if not a fully qualified government, at least some kind of proto-governmental entity, identified as anyone who manage to controls the means of violence over a region, since that entity can (and historically many times do) at some point become the officially recognized government over that region.

    In any case, even with this restriction, the generalized definition of censorship, which I understand to be at the core of bigolbiggy’s argument, still clearly intersects with copyright law, since a copyright holder is so not by himself, but as a protegé of that government which grants him monopoly copying rights. Hence, copyright would be censorship because it’s: “copyright holders, by way of the government” (A) preventing “a copyright infringer” (B) from expressing “a speech in the exact form of an unlicensed copyrighted work” (C) by treat of violence (fines to imprisonment).

    Now, one might argue that a speech is only worthy of protection from censorship if it’s original, but that doesn’t actually solve the problem, quite the opposite, it only adds a degree of separation, since the issue then becomes “requirement of originality is censorship”. And this *is* an issue, because treated in the same manner it empowers not only the moral argument against copyright, but also arguments against trademarks and against authors’ “moral rights” (i.e., for the right to plagiarize).

    I myself side with the most extreme of these consequences. I don’t think there’s merit in laws preventing “absolutely identical speech”, violation of trademarks, or plagiarizing. On the other hand, I think creators should indeed benefit from their creative impulse. How do I reconcile both? With the very old concept of patronage: you seek a patron with a proposal; if he approves, you do the work, get paid, and go after some other opportunity; as for the work, it’s simply there, ready to be copied by whoever desires to do so, the patron himself being the owner of the original, but neither more nor less than that.

    Anything else is, to me, immoral.

  159. Just thought I should say this:

    First of all, @Tim F it is spelled Bologna… not Balony. I do not know how old you are, but I am 16 and saw that when you are probably over the ageof 18, and didn’t. Who says home schooled kids are stupid? (Not implying that anyone in the comments for this post said anything related to home schooled kids are stupid… I have just heard that a lot.)

    Anyway, may I say I love this post/letter! But, I do agree that Chris Dodd will probably never see it, and if he does, will probably use it to start his fireplace.

    In regard to your comment about “1984″ I totally agree… Heres another way to look at it.

    Whenever I find a song I like, I COULD use Real Player to download the song from Youtube. I know someone who does that. But, what I do instead is go to the library, borrow the CD, then import the song into my iTunes.

    Now, say a music atrist finds out that a lot of people are downloading his/her songs illegally. So, the publishing company asks iTunes to remove all songs that weren’t bought on the iTunes store. That would include the song I imported legally. Yes, it would get rid of the illegal ones, but also the legal ones borrowed from the library.

    Now, I know this isn’t an air tight example, but an example non the less.

  160. Eric,
    Thanks for explaining to Chris Dodd in a very clear and cogent way what he needs to hear and understand about the dubious and ridiculous purposes of the SOPA/PIPA/ACTA proposals and intended legislation.

    It is bad enough that Dodd is now an principal official of the motion Picture Association of America (Hollywood) and was heavily financed by the Financial Services Industry who he suposedly fought to control from abuse, but he has the gall to criticize Wikipedia and other web sites for protesting by blackout.

    Chris Dodd cannot and should not attempt to supposedly speak for me about my access to information which he is attemptimg to censor. He also goes to an extreme by insinuating that the millions of people like myself who petitioned against the legislation “have been incited” to oppose these stupid proposals. I needed no additional incentive to fight insanity.

    I fortunately have been involved in the technology and business industry long enught to probably have more facts and knowledge about the real issues than he does, and his patronizing attitude and expressions I find abhorrent and reprehensible.

    Keep it up Raymond.

  161. “I think creators should indeed benefit from their creative impulse…With the very old concept of patronage: you seek a patron with a proposal; if he approves, you do the work, get paid, and go after some other opportunity; as for the work, it’s simply there, ready to be copied.”

    This gives much too much power to the wealthy. We saw the decline of this start with the invention of printing, and continue on down to today where anyone with a computer and an internet connection can publish their work. There’s much more freedom for the common man, but the problem of IP comes along with it. I don’t think we want to return to the days of the Medicis.

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  163. @Jessica
    Simply stating that censorship is something the government does to suppress speech makes it very limited.

    The Catholic church used to have a list of forbidden books. Other religious communities have/had those too. None of these qualify as a “government” for the people they rule. Still, these “indices” of forbidden books did severely limit the availability of these texts. You can argue that the information “was available” because you could get hold of scholarly papers publishing the same information as was expressed in literary form. But to almost all people, this information was inaccessible.

    I do not think limiting the meaning of the word “censoring” to only governments and only suppressing the content of the information elucidates how powerful non-governmental institutions are able to block the expression and distributions of ideas.

    But if we take your definition, how should we then call the practice that Copyright law allows big publishers to kill a musical style, i.e., sampling? Or that the majority of literature, journalism, film, and music of the 20th century is inaccessible because the “owners” think they are better off if they are *not* published by anyone (ie, they do not publish it themselves, and they do not allow others to publish it).

    And when the Coca Cola company bans films that use coke bottles in inappropriate ways, how should we call that? I am curious. The same for banned Fan-fiction.

  164. @LS:

    This gives much too much power to the wealthy. We saw the decline of this start with the invention of printing, and continue on down to today where anyone with a computer and an internet connection can publish their work. There’s much more freedom for the common man, but the problem of IP comes along with it. I don’t think we want to return to the days of the Medicis.

    It doesn’t need to be the wealthy*. Contemporaneous technology offers the means for a large number of people to get together and collectively become a sponsor. It’s the crowdfunding model: http://en.wikipedia.org/wiki/Crowd_funding . If adopted and sufficiently pulverized, the price for an individual to sponsor a piece of intellectual production would be the same, or less, than what he currently pays to get it after the fact. In fact, with a large enough number of crowdfunders there’s even the possibility of a surplus available to fund, after the fact and on grounds of merit, first time authors/singers/etc. for their debut effort, something important given that it’s easier for a known producer with a good set of achievements to get crowdfunded than someone still unknown.

    (*) It should be noted that, from the perspective of someone who’s struggling with his subsistence (needs), anyone with spare money available to fund entertainment (wants) is “wealthy”, a crowdfunding-based patron entity no less than any individual able to become a patron by himself.

  165. > And if you’d like to discuss some ways of fighting piracy that don’t involve trampling on us and our users, we do have some ideas.

    Are there links to the ideas for fighting piracy?

  166. Obviously, I should read before I hit the Post button. The previous should be labelled:
    Birdsong of wild living animals is *claimed to be* copyrighted

  167. @Pgrytdal

    First of all, @Tim F it is spelled Bologna… not Balony. I do not know how old you are, but I am 16 and saw that when you are probably over the ageof 18, and didn’t.

    I don’t think you’re a surrealist performance artist, so:

    (1) If you’re going to criticize someone for not writing correctly, at least glance over your own text; it’s not even parseable.
    (2) When criticizing someone’s spelling, don’t misspell the alleged misspelling, which was “baloney”.
    (3) Finally, “Bologna” is a city and the name of a lunch meat. “Baloney” is a term for hogwash. TimF used the correct one.

  168. @Christopher Smith

    “(1) If you’re going to criticize someone for not writing correctly, at least glance over your own text; it’s not even parseable.
    (2) When criticizing someone’s spelling, don’t misspell the alleged misspelling, which was “baloney”.”

    Sounds like the appeal to hypocrisy fallacy to me. It would help more to spell it correctly, but you don’t need to in order to criticize them for spelling it wrong. He also doesn’t need to write correctly to criticize someone else’s writing.

  169. @Winter
    >The Catholic church used to have a list of forbidden books. Other religious communities have/had those too. None of these qualify as a “government” for the people they rule.

    During the time that that mattered (probably from the 1400s to the late 1700s) the Catholic church really was a shadow government. I don’t really want to get into an argument over the meaning of words, it is always a pointless exercise. The essential difference between “government” and “non-government” to me is the right to choose. If your cell phone provider pisses you off you can unilaterally change it. You can’t do that with your government, and, if you lived in the 1600s you certainly couldn’t change your church.

    > elucidates how powerful non-governmental institutions are able to block the expression and distributions of ideas.

    Right, with the backing of government. However, I certainly think you have a valid point. But that is more an artifact of the current law’s implementation. For example, I can readily express the sentiments in Eric’s letter above in my own words and in my own way. Even if I were not as eloquent as he, I could certainly express the same ideas in a way that would not violate Eric’s copyright on the letter above. But if I use the exact wording Eric did, and claim it is my own, or attempt to profit from it, then he has a legitimate cause for complaint.

    Large corporations (and individuals) can block the very specific expression of an idea, but they cannot, or should not be able to, block the expression of substantially the same idea in a different manner. Perhaps the modern implementation of copyright law might bleed into this second thing too much, but it need not be so (at this point you start bleeding into patents, which I utterly oppose.)

    > But if we take your definition, how should we then call the practice that Copyright law allows big publishers to kill a musical style, i.e., sampling? Or that the majority of literature, journalism, film, and music of the 20th century is inaccessible because the “owners” think they are better off if they are *not* published by anyone (ie, they do not publish it themselves, and they do not allow others to publish it).

    I think it is a fair question. I’d ask you in return how much of that would not have been created in the absence of the protections you are concerned with? I don’t know the answer to that. Here in the USA vast tracts of land are off limits to the use of the general public both because they belong to a private citizen or because they belong to the federal government. Is that a good thing?

    Like I say, I don’t have a good answer on copyright, I think it is the hardest of the IP issues. However, I find the idea that the copyright period should be much shorter, and that there is some obligation to publish, has a definite appeal. I also thing that the restriction on derivative works is really silly. The guy who wanted to produce the Harry Potter encyclopedia (or sampling too) is clearly creating a new thing. My concern is with using a substantial portion verbatim.

    > And when the Coca Cola company bans films that use coke bottles in inappropriate ways, how should we call that? I am curious. The same for banned Fan-fiction.

    I think it is stupid.

  170. @jessica
    >Perhaps the modern implementation of copyright law might bleed into this second thing too much, but it need not be so (at this point you start bleeding into patents, which I utterly oppose.)

    Let me give an example of the difference for clarity. In copyright law I can prevent you from publishing a song that goes: “All you need is love, do, da, do, da, do. All you need is love, love, love is all you need!…” etc. In patent law I can prevent your from writing songs about love.

    (Though to be clear, what I would actually patent are songs about love, and substantially similar emotional states, including affection, desire, sexual gratification, excessive liking, calling people schmoopy, and any other similar technologies that might be created or invented in the future.)

  171. @Jessica
    The Catholic index of forbidden books was effective at least until the 1960s. I am old enough to have spoken with family members who were affected by it. Church initiated book and movie banning is still reported from random villages.

    Fan fiction is illegal everywhere and at the mercy of the copyright holders. And fan fiction is creative by definition.

    I really do not think limiting censorship to be government based only helps us understand the perils facing Free Speech.

  172. @Winter
    > The Catholic index of forbidden books was effective at least until the 1960s.

    Where I live there is an aggressive enforcement of the separation of church and state. Here, you can’t do that. That isn’t to say that the government doesn’t try to impose a secular morality on media, but the American Library Association is often a true champion on these things.

    > Fan fiction is illegal everywhere and at the mercy of the copyright holders. And fan fiction is creative by definition.

    I agree. I believe I gave the example of Harry Potter’s Encyclopedia. My concern is with the substantial verbatim copying of information. Again, please don’t assume that I favor every nuance of the present copyright law just because I think there is some legitimacy to the broader concern for securing the rights of authors.

    > I really do not think limiting censorship to be government based only helps us understand the perils facing Free Speech.

    No, but I think calling all of society’s mechanisms to control the flow of information “censorship” isn’t helpful either. There are multiple issues. Confusing them leads to confusion.

    Here in the USA there is a big court case going on about a guy who secretly filmed his roommate having a homosexual encounter with someone, and then he published the movie. The roommate was so ashamed that he killed himself. I don’t think it is censorship to say that that guy had no right to make that movie public or that the roommate had a legitimate right to stop its distribution. I think calling that censorship is just plain wrong.

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  174. Oh, yeah, and one other thing, I have no problem at all with the Catholic church having an index of banned books. They have the perfect right to give their members advice, and even tell their members that if they don’t follow that advice they can’t be members anymore. It is perfectly legitimate to stop certain information entering in to your brain.

    I remember when Daniel Pearl was murdered by various religious whackos, I came across the video of his murder on line. I sat and looked at the play button for an hour trying to decide whether to click it or not. In the end, I didn’t because I chose not to have that image in my mind. I know what is in there, I don’t need to bloody details.

    The problem comes when the Catholic church says that no-one can have access to Lady Chatterley’s Lover. Then it is not about advice, recommendation and choice, it is about force. And that is where it becomes a problem.

  175. WOW!! Gutsy doesn’t even cover it. BRAVO! BRAVO!! I’m a novice to this site. And I have only one negative criticism of the article. But that is about writing form and style. The author starts talking about DRM. I’m unfamiliar with these initials, or what they stand for. I got the gist of it, from the context. But I’m a stickler. If I’m going to USE initials in anything I write, I always identify them first.

    Until I learn what DRM stands for, I’ll just think of it as Dumb Republican Monsters. I know that couldn’t be too far off. :)

  176. One interesting aspect – nothing provides publicity for a book like banning it (whether it is a government or the Catholic Church).

  177. @Jessica
    “I have no problem at all with the Catholic church having an index of banned books. They have the perfect right to give their members advice, and even tell their members that if they don’t follow that advice they can’t be members anymore.”

    With priests in the boards of everything, from schools to libraries to hospitals to prisons to charities, that was not how it was intended to work. And it did not work that way. (note that they could and did make book shops to drop banned books)

    @Jessica
    “I don’t think it is censorship to say that that guy had no right to make that movie public or that the roommate had a legitimate right to stop its distribution. I think calling that censorship is just plain wrong.”

    If banning libel, slander, and invasion of privacy are called censorship, I am still for banning them. I try to limit my moral judgments to practices, not words. The courts *do* treat all these bans publicaly as assaults on Free Speech. They will decide on a case by case basis whether the ban is justified given the interests of the victim and the public.

    Still, the laws handling libel and privacy are nothing like those handling “IP”. Neither does the word “Property” come ever come up. So I see no reason to conflate the two areas.

    I think the Fan Fiction case is a good exemplar: They are clearly completely illegal and at the mercy of the copyright holders, they are creative speech in every meaning of the word, and their ban makes absolutely no sense at all. A ban on Fan Fiction is purely arbitrary.

    So, how should we treat the illegal status of Fan Fiction? If not as censorship, what else?

  178. >One interesting aspect – nothing provides publicity for a book like banning it
    >(whether it is a government or the Catholic Church).

    Up until the 1950-1960, the influence of the Catholic Church (In Belgium, and presumably in other heavily catholic countries) was such that if they ‘banned’ a book, you’d simply never know it existed – In a “catholic” country, all sources of information would be controlled by the church, not just books ; so where would your publicity come from then ?

  179. I assume that you are right about “heavily Catholic” countries; I admit that I was thinking more of the limited case of the US and Canada.

  180. @ winter

    So, how should we treat the illegal status of Fan Fiction? If not as censorship, what else?

    It is a violation of copyright for an author to use a character created (and copyrighted) by another author. But back to your primary digression…

    You have been trying to put down IP by (incorrectly) claiming that IP is censorship since noon 3 days ago. Is this the only tool you have, here?

    Tossing a word into the ring and then getting the argument focused on the definition of that word generally doesn’t prove anything about the original argument.

  181. @Winter
    > With priests in the boards of everything, from schools to libraries to hospitals to prisons to charities, that was not how it was intended to work.

    Sorry, that is nothing like censorship. Organizations making decisions for their members or users can do whatever they like, even if the decisions are made by proxy. I don’t think a Catholic school should be required to keep the Bible of Satan in their library, and I don’t think the local Muslim school should have Playboy as required reading.

    If that means that there is insufficient market to allow the production of the work, then so be it. Publishing on the internet is virtually free.

    >Still, the laws handling libel and privacy are nothing like those handling “IP”. Neither does the word “Property” come ever come up. So I see no reason to conflate the two areas.

    The conflation was to delegitimize the claim made by some that every mechanism society uses to control the flow of information is necessarily censorship. It isn’t at all. Consequently making an arbitrary claim, as some have, that the government enforcing copyright is necessarily censorship is plainly false.

    > I think the Fan Fiction case is a good exemplar:

    I think I have said this several times — my concern is the control of the substantial verbatim copying of an author’s work. Fan fiction doesn’t meet that requirement as far as I know, and consequently, I am opposed the copyright holders having any rights over fan fiction. (There are a couple of issues related to trademark, but that is a whole other issue.)

    > So, how should we treat the illegal status of Fan Fiction? If not as censorship, what else?

    We shouldn’t, it shouldn’t be illegal.

  182. > I admit that I was thinking more of the limited case of the US and Canada.
    OK,
    but I think the point Winter is making that at if at some point an arbitrary group, be it the government, the Catholic Church, or one of those copyright/DRM entities, can control what information people have access to, that that amounts to censorship, or at least that its effect is indistinguishable from ‘real’, gov-initiated censorship.

  183. Would have been more credible if it were not posted on a blog entitled “Armed and Dangerous
    Sex, software, politics, and firearms. Life’s simple pleasures…”

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  185. I think the point Winter is making that at if at some point an arbitrary group, be it the government, the Catholic Church, or one of those copyright/DRM entities, can control what information people have access to, that that amounts to censorship

    I agree with you. However IP isn’t censorship, no matter how many unrelated side issues winter tries to drag in.

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  188. “…However IP isn’t censorship…”

    The very concept of IP isn’t censorship, and it’s not meant to be, but can be used that way. A story that I keep hearing (though I don’t know if it’s really true), is that Bill Cosby bought the rights to the old Little Rascals films so that the character of Buckwheat would no longer be shown. If true, that’s certainly censorship of racist images, which is a point of view held by many people in times long past.

  189. Bill Cosby bought the rights to the old Little Rascals films so that the character of Buckwheat would no longer be shown. If true, that’s certainly censorship of racist images, which is a point of view held by many people in times long past.

    A private person buying the rights to something so that he controls it isn’t censorship – it is called ownership. (If a government was doing it to try to prevent me from seeing something, THAT would be censorship.)

    Consider: Suppose I was very rich and bought a few housing lots that have a beautiful view behind them because I didn’t want any one to build on those lots. I think your Cosby example is closer to this than to censorship.

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  191. @Brian Marshall: I don’t think you can compare a natural landscape to a film that expresses ideas and opinions. Certainly, buying a lot to prevent me from building does that, but not more than that. It doesn’t stop me from expressing any idea or opinion that I may have.

  192. @Brian Marshal
    “A private person buying the rights to something so that he controls it isn’t censorship – it is called ownership.”

    Ownership over my behavior, my speech, and my art? Stuff *I*did not sell? And ownership over a movie people rightly bought?

    You might object to the word “Censorship”, but you seem not to object against other people claiming ownership over what *you* want to say, draw, do, or perform in your own home using your own stuff.

    All this talk about “verbatim copying” ignores the fact that modern day “IP” laws go way and way beyond that.

    Modern day “IP” claims control over “look-and-feel” and superficial likeness, over mathematics (Software patents), and common words and images, “Apfelkind” child cafe versus “Apple”.
    http://www.dailymail.co.uk/news/article-2055869/German-cafe-Apfelkind-logo-dispute-Apple.html

    And in all this heavy handed control goes together with artists who get an ever smaller part of the pie.

    @Jessica
    “We shouldn’t, [Fan Fiction] shouldn’t be illegal.”

    I agree. But it *is* illegal under current law. That is my whole point. Make “IP” laws that do not curtail people in ways like this, and it is not censorship. But current laws do curtail people quite hefty.

  193. Once an “intellectual property” is released onto the internet, it ceases to be any one’s internet – even if they are respected creators/geeks etc. So any one should be able to take it in any direction they want. “Ownership” in the sense of being responsible for the content and usage rests with everyone.

    Further, I would think that having access to any and every content is not a birthright (in any way equal in importance to say the pursuit and existence of life and liberty or food, clothing and shelter).

    It is clear that some people (and agencies) will always misuse this freedom – to use the internet how they want – to disallow others from viewing what they want. For example, it is said that entire web sites are banned in China. In India – where I come from, apart from filing cases in courts against major web hosting companies, a more insidious form of censorship is adopted. Recently a prominent TV media journalist said that whenever she publishes or tweets against injustice and heavy handedness – or even hosts such focussed and critical episodes on her talk shows, the number of her friends increases. She is spammed more often and unwanted traffic to her handle increases. People have to wade thru noise (crap) to get to content.

    The question for most of us is how do we oppose these oppressive practices?

    An obvious way is to turn it round by friending/signing_up to these persons’ portals etc persons and generating noise (for them). If government and organised pressure groups do this, why not we the unorganised who are part of the 99%? (Or at least those of us who have access to the internet). It’s a free world.

    Further, we the silent, unorganised majority have a duty to take it up independently in the avatar (if I may use the word) of the unorganised, silent 99%. Certainly geeks are friends but our approach should entirely different.

    Whats appropriate and effective?

    OK

  194. Would have been more credible if it were not posted on a blog entitled “Armed and Dangerous. _ex, software, politics, and firearms. Life’s simple pleasures…”

    Sorry. Thats how Mr. ESR presumably is.

    It is up to us the non-geek, non-hacker, non-cracker, 99% majority to cut thru the noise and understand that here is a person who has some good ideas on how not to censor the web while at the same time avoiding piracy of intellectual property – both in letter and spirit.

    OK

  195. Pingback: Censure du Net et DRM ne seront jamais la solution répond ESR à Hollywood | Dico Micro

  196. Great article, Eric!

    Next time Hollywood / Big Media tries to pull another PIPA or SOA, why don’t we think about a nation-wide boycott of their product? Most of what they peddle is mindless dribble, re-rendered and repackaged over and over again like offal turned into animal feed.

    I gave up my cable connection when I moved into my new home four years ago and have never missed it. When I do want entertainment, there is so much good indie stuff out there, I never feel lacking. And don’t forget to tune in and support your local NPR station.

    As consumers we are made to feel like helpless pawns who just keep handing over our money, but we forget the power that we have to vote with our feet and our credit-cards. Let’s remember this next time Big Media tries to pull another PIPA or SOPA or takes a 12-year-old kid to court for downloading “Happy Birthday”. I cannot think of anything that would get Hollywood and Big Media’s attention more than a boycott. It would smack them right on their most sensitive spot – their pockets.

  197. @Anantha

    “It is up to us the non-geek, non-hacker, non-cracker, 99% majority to cut thru the noise and understand that here is a person who has some good ideas on how not to censor the web while at the same time avoiding piracy of intellectual property – both in letter and spirit.”

    That seems highly unlikely. And even legal censorship is still censorship. If you find infringing content, will it be removed? That’s censorship, legal or not.

    I honestly see no ways to avoid piracy while not violating people’s civil rights. Even the laws we have *now* are abusive (the DMCA is continually abused and/or companies are overly paranoid because of it).

  198. I believe the phrase is ‘hit the nail on the head’.

  199. @ LS

    Certainly, buying a lot to prevent me from building does that, but not more than that. It doesn’t stop me from expressing any idea or opinion that I may have.

    Right. I was making use of an analogy.

    For the most part, you can express any idea or opinion that you have. None of the exceptions (ex. “yelling “FIRE” in a crowded theatre”, slander/libel) are related to IP.

    I have
    – serious issues with patent law
    – serious issues with some persecution of copyright law
    – some issues with copyright law
    – no issues that I can think of off-hand with trademark law

    I have not been trying to defend current IP law. I have been taking exception to bad arguments.

    I don’t have any problem with what you suggested Cosby did. The question of whether it was censorship is beside the point. Everything in this blog about “censorship” is beside the point.

  200. @ winter

    I said: “A private person buying the rights to something so that he controls it isn’t censorship – it is called ownership.” in response to something LS said.

    You respond with: “Ownership over my behaviour, my speech, and my art? Stuff *I*did not sell? And ownership over a movie people rightly bought?”

    This isn’t a coherent or, apparently, even meaningful, reply. Are you not aware that Cosby buying the rights to a set of movies doesn’t affect the people that already own any of these movies?

    I am not happy with all IP law. My libertarian bent makes me want to see all of it go away, but there are a few aspects that are not covered by other law that seem to require some law – copying an artist’s art to avoid paying is one of them.

    However…. everything in this blog about “censorship” is beside the point, Beyond the previous sentence, I am not going to argue about what is and is not censorship in relation to IP law or analogies.

  201. @ winter

    I guess there aren’t a lot of owners of the movies Cosby bought. Perhaps his actions will prevent the movies from being shown again.

    So? If they are now his movies, he has the right to not have them shown.

  202. The Church of Scientology uses IP to enforce its censorship. It works as a way to keep its secret documents from being disseminated widely or talked about in the press. IP law allows the lawsuit to go forward even if it has no merits, and by doing so they can impose costs on those who oppose them.

  203. @Rick C, @LS

    I seriously doubt that Mr. Dodd will ever read this letter, because, consistent with the part after “To be blunt (because there isn’t any nice way to put this)”, it is almost certainly above his reading level. I have interpreted that Eric’s conclusion about “Big Entertainment” is the mildest that can be arrived at that is consistent with their behaviour re SOPA/PIPA/ACTA.

    @Larry

    I feel so strongly about these issues that I am actually boycotting the worst offenders. This means I haven’t been inside a movie theater since 2004. I’m also like this with pro-sports. Since the officiating of the National Hockey League went to crap in the 1990s, I’ve no longer been interested in watching hockey, even on TV, even though I was a big fan as a kid. I can no longer even tell the difference between the Toronto Canadiens and the Montreal Maple Leafs. I’m getting that way with movies, too. I don’t give money to those who screw me around. If we all get that way, the MPAA will change their tune _real_ fast. (BTW, the worst offender is Sony BMG, who once installed malware on some of their music album CDs. I’ll miss Vegas, but here, I think the good done by boycotting the entire Sony label will outweigh the good I can do with Vegas instead of someone else’s video editing software.)

    @ Bobby B.

    DRM stands for “Digital Rights Management”, software (usually malware) that prevents the copying and/or distribution of legally acquired software, music, pictures, or video files. The example of Sony BMG malware above (http://en.wikipedia.org/wiki/Sony_BMG_copy_protection_rootkit_scandal) went far beyond standard-issue DRM, however.

  204. @Winter
    > I agree. But it *is* illegal under current law. That is my whole point.

    Actually, here was your original point:

    >I consider all IP as censorship. These laws give other people have a legal right to stop me from saying, writing, performing what I want…

    Not playing gotcha, but this is the point I am arguing against. I am certainly not arguing that the present edifice is defensible as it stands today.

    > Make “IP” laws that do not curtail people in ways like this, and it is not censorship. But current laws do curtail people quite hefty.

    I agree, much of current copyright law is terrible and very oppressive. However, to me there is a kernel of justice in there, and I don’t think throwing the baby out with the bathwater is necessary. However, I will concede this point: if I had to choose between the current situation and absolutely no copyright law at all, I would choose the latter.

  205. @NAME REDACTED
    > The Church of Scientology uses IP to enforce its censorship.

    Google also uses IP to enforce its censorship. The jerks refuse to publish, that is to say they censor, their secret business plans going forward, and anyone who gets them will be sued out of existence.

    Brad Pitt has a secret movie of him having sex with his wife. The jerk uses IP protections to prevent it from getting published, and anyone who would dare do so will just get sued out of existence.

    Or to put it another way, companies, churches, and people have a perfect right to keep their own secrets and share them with whoever they will on whatever terms they will.

  206. @Jessica Boxer:

    Or to put it another way, companies, churches, and people have a perfect right to keep their own secrets and share them with whoever they will on whatever terms they will.

    Sure, but if a secret escapes into the wild and becomes part of popular culture then, as we discussed, the practical ownership of it (as opposed to the theoretical) becomes a lot less. And that is as it should be.

    Everybody sings “Happy Birthday.” It’s a tradition. It may be OK for TV shows to have to pay to show it being sung, and it may be OK for restaurants to be cowed into thinking they’ll be sued if they sing it, but if the common man thinks that the government will let a private party extract a toll from him for singing it, in private or at a public park, all hell will break loose. And that is as it should be.

    Now to tie this back to corporate stuff: A lot of us grew up watching Disney: “Lady and the Tramp,” “Bambi,”, whatever. Disney carefully manages their portfolio to “extract maximum value.” But if someone can’t legitimately buy a copy of a Disney title that they want to see for nostalgia’s sake, and they “pirate” it, heaven help Disney if I’m on that jury…

  207. @Jessica
    >Or to put it another way, companies, churches, and people have a perfect right to keep their own secrets and share them with whoever they will on whatever terms they will.

    yes, they do… until the point at which they enter public discourse (i.e. until they are published by any party). After that point, efforts toward their removal that rely on force or coercion are rightly called censorship.

    I see this as the elusive connection between censorship and IP… the enforcement of IP requires censorship after some initial violation causes the protected work to enter into the free exchange of public discourse. So, suing the employee who leaks trade secrets or an unreleased copy of some upcoming blockbuster is fair – I have no complaints there – but that is where the copyright holder’s right to retaliation and damage control through coercion, threats, and/or force should (in any sane and ethical system) end.

  208. >Sure, but if a secret escapes into the wild and becomes part of popular culture then, as we discussed, the practical ownership of it (as opposed to the theoretical) becomes a lot less.

    If some guy busts into your house and steals your TV, then he sells it to me. Do you have the right to get your TV back from me, even though I am out my cash? The law says yes.

    If someone breaks your confidence in violation of a legitimate agreement you have an absolute right to try to restrict the damage. Perhaps copyright law grants them an excess of rights in this regard, again I am not defending the whole edifice of copyright law. But they have some justification in being peeved, and some right to relief and reversal of the damage insofar as it is possible.

    It is easy to rag on the Scientoligists, they are weird and yucky. But weird and yucky folks have rights too. And if we defend the weird and yucky folks, then it is less likely we have to defend ourselves. To repeat my analogy, we defend the city walls so that we don’t have to defend the King’s bed chamber.

  209. Hmm, I guess I was thinking more about “secrets” like “undiscovered talent.”

    I was discussing things that were deliberately publicized and then abusively monetized; I put those in a completely different bucket than things that were always intended to be secret.

  210. >It is easy to rag on the Scientoligists, they are weird and yucky. But weird and yucky folks have rights too. And if we defend the weird and yucky folks, then it is less likely we have to defend ourselves.

    +1, Jessica. Or as Thomas Paine put it, “He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.”

  211. @Jessica
    “Not playing gotcha, but this is the point I am arguing against.”

    And I stand by it. I used Fan Fiction just as a clearly delineated example. But I do *not* extend this position to libel, slander, or invasion of privacy. I find it perfectly acceptable for anyone to fight the distribution of things filmed in their private home. And I do not care for a moment whether this would fall under the definition of “censorship” or not. But most countries are able to handle this outside copyright law.

    But IP laws are installed to curtail the “intellectual” actions, speech, and creativity of people. That is their sole aim for which they were made into law.

    There are other systems of law that will do the same, but only in extremely limited circumstances and only on a case by case basis. Contract law and privacy laws can do the same for specific individuals in specific circumstances. In each case the “Free Speech” effects are weighted against the individual needs of the victim.

    IP laws are unique in that they curtail your freedom wholesale for whole swats of subjects and this is not based on case specifics.

    @Jessica
    “I agree, much of current copyright law is terrible and very oppressive. However, to me there is a kernel of justice in there, and I don’t think throwing the baby out with the bathwater is necessary.”

    Yes, I do see that the basic idea of “IP” laws (all three areas) has justice. Originally, it was a deal: “the creator adds to the public domain in return for a limited monopoly”. The deal has been broken at both sides. The creator does not add to the public domain anymore and the limits have been lifted from the monopoly. Also, the costs, in terms of limitations, of the deal were initially born only by the publishers, and not by the consumers. Nowadays, the costs have to be born by the consumers directly. Consumers in their own home are now the subject of legal action.

    And a law is as just as its implementation. Any law that says to do something moral and honorable but actually mostly stimulates immoral and dishonorable practices is in the end immoral and dishonorable. If “IP” laws say to stimulate creativity and innovation but instead become the biggest enemy of those who want to be create and innovate, then these laws are oppressive, as they are now.

    If you say there could be good “IP” laws that are not oppressive and indeed stimulate the creative and innovative, be my guest. We could see whether we still could call them censorship and whether we would support them nonetheless. But at the moment we are losing a great amount of freedom in return for only very little support for the creative and the innovative. Every serious economic study found the balance for society to be negative, often extremely so.

    @Jessica
    “Do you have the right to get your TV back from me, even though I am out my cash? The law says yes.”

    Not in Continental Europe, unless you could have known it was stolen. A sale is a sale.

    But texts are not TV sets. Even if you can get your hard-copy back, that does not imply forcing the deletion of all copies is the right thing to legalize.

  212. @Winter
    > But IP laws are installed to curtail the “intellectual” actions, speech, and creativity of people. That is their sole aim for which they were made into law.

    Lets not add trademarks and patents into this mix. There are different types of IP and they are quite different in their nature. We are talking about copyright here, which isn’t so much about intellectual activity as it is about the “right to copy.”

    > IP laws are unique in that they curtail your freedom wholesale for whole swats of subjects
    > and this is not based on case specifics.

    The core meaning of copyright is that you can’t wholesale copy someone else’s work without their permission. That doesn’t seem unreasonable to me. Just because the law is badly implemented doesn’t mean the core principle isn’t good. Here in the USA traffic laws are often extremely stupid. But I am still think that the people who run the roads should set some basic rules of good driving behavior.

    > Yes, I do see that the basic idea of “IP” laws (all three areas) has justice.

    FWIW, I don’t, I think patents are totally bogus.

    > And a law is as just as its implementation.

    This thread isn’t parliament. We are talking about concepts of justice, and in particular if we should apply that word “censorship” a word with huge cultural baggage, to preventing downloading a copy of Katy Perry’s latest album. I haven’t heard a convincing argument that it is, though I have heard lots of people point out flaws in the present implementation of that concept. Hey, they made the traffic light at the end of my street stay WAY to long on red. Perhaps we should get rid of traffic lights?

    > Not in Continental Europe, unless you could have known it was stolen. A sale is a sale.

    Interesting, thanks for the info.

    > But texts are not TV sets. Even if you can get your hard-copy back, that does not imply forcing the deletion of all copies is the right thing to legalize.

    Sometimes the value of something is in its scarcity. If Google’s secret plan to take over the world gets copied through force or fraud, then it might totally undermine their ability to execute the plan, and possibly cost them millions of dollars. They have every right to be pissed, and every right to try to fix the damage, even if it means that your copy, which you shouldn’t have in the first place, needs to get deleted. You are, however, free to write your own plan of how Google can take over the world. Go nuts, they own the verbatim text not the idea or concept.

  213. +1, Jessica. Or as Thomas Paine put it, “He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.”

    No question Scientologists have the same rights as you and I. (And most people below Tom Cruise’s level in Scieno hierarchy are probably less weird and icky than you might suppose.) But the ends to which Scientology has put copyright — restriction of the dissemination of church beliefs to those who have already bought in to them, literally, to the tune of hundreds of thousands of dollars; and silencing those who would openly discuss and critique those beliefs — it calls further into question whether, on the whole, the current copyright regime is appropriate or beneficial.

  214. @Jeff Read
    >And most people below Tom Cruise’s level in Scieno hierarchy are probably less weird and icky than you might suppose.

    To be clear, I don’t find Scientologists’ belief system any weirder or crazier than conventional mainline Christianity. Familiarity with bizarre rituals like the Eucharist, and nutty ideas like transubstantiation merely make the batshit crazy seem warm and fuzzy. In America, because of a residue of crazy religiosity, we cut off a bit of a boy’s penis ten minutes after he gets out of that nice warm and cozy place he has been living. Welcome to reality little guy.

    I promise you, they do some WAY weird shit in the Vatican. I just can’t take the funny hats seriously. And the thing that gets me is that they are all so darned earnest. I keep thinking someone is going to jump out and say “Live from New York, Its Saturday night.” But apparently, all that stuff is not a joke, but deadly serious.

    BTW, I’m not going to mock Islam similarly, because Catholics are nuts but not “cut your throat in your sleep” nuts. I am certainly not going to mention the fact that the highly revered founder of Islam, Muhammad, that his favorite wife was six years old when he “married” her (but don’t worry they didn’t “consummate” the “relationship” until she was nine. There, don’t you feel a lot better now?)

    Because, as we all know, Islam is a “Religion of Peace.”

    > But the ends to which Scientology has put copyright

    It doesn’t seem to me all that good an idea, but it is their stuff and they have the right to disseminate it how they want. If I am a thetan and get access to the inner core stuff, but before I do I sign up to take it to the grave, the Scientology guys have a reasonable expectation that I will follow through, and a reasonable right to try to undo any damage I do if I don’t follow through. Does present copyright law give them more power than they should have to effect this end? Probably, but I’m arguing the principle of copyright, not the particulars.

  215. @Jessica Boxer “The core meaning of copyright is that you can’t wholesale copy someone else’s work without their permission.”

    Absolutely wrong. At the very least, it’s also about adaptations and derivative works. (It’s inseparable because there’s no clear dividing line between “wholesale with a few changes to get around it” and an adaptation/derivative work with real creative input) There wouldn’t be nearly as many Disney animated movies if not for their ability to adapt classic fairy tales like Snow White, Sleeping Beauty, etc. Today, only ABC (owned by Disney) could have made the show “Once Upon a Time” in the form that it is in – it is definitely derivative of the earlier disney interpretations of the stories it adapts. When will their versions similarly become something that anyone else may build on and add their own twists to?

    (One may argue, on the other hand, that it is indeed acceptable for them to keep this exclusivity forever – I don’t agree, but it’s a legitimate position that follows from treating it as an actual property right; property doesn’t expire. – or that it should have in the first place been kept by the heirs of those who originally wrote the fairy tales, but this is most DEFINITELY not just about copying)

  216. Random832
    > > @Jessica Boxer “The core meaning of copyright is that you can’t wholesale copy someone else’s work without their permission.”
    > Absolutely wrong. At the very least, it’s also about adaptations and derivative works.

    “Absolutely?” Wow, that is a degree of certainty I wouldn’t assert without a lot of confidence. I’d have to know a whole heck of a lot about the history of copyrights before I made that claim. But perhaps you do.
    “Derived works” is an outgrowth of this core principle, and you are right, it is not a bright line. Just because the border between Kuwait and Saudi Arabia isn’t entirely agreed upon, Mecca is still definitely in Saudi Arabia.

    > There wouldn’t be nearly as many Disney animated movies if not for their ability to adapt classic fairy tales

    Don’t you think that that once again misses the point? You can write your own Snow White story, just make sure the Dwarfs aren’t called Grumpy, Happy, Sneezy, and Doc.

  217. I changed my quote of you at the last minute from “We are talking about copyright here, which isn’t so much about intellectual activity as it is about the “right to copy.””, and I didn’t quite edit to make it clear. But what I was trying to get across is, there’s no real way to ban _only_ wholesale copying, without also banning _some_ actual creative works, since one person’s creative work is another copyright holder’s “just added a bit to get around it”.

    My point about the disney movies is, if copyright lasted forever (as it seems likely to now), Disney wouldn’t have been able to make their movie in the first place. Shouldn’t people eventually be able to do the same thing with the last century’s new great stories?

  218. I don’t understand the endless dissection of IP legalities on this blog post. At the nuts & bolts level, these issues are most often resolved by attorneys and courts. At the pubic policy level, self-serving politicians and lobbyists frequently determine our fate. At a core level, this topic is just another example of governmental power expansion and the attendant chaos that results from unnecessary complexity and intrusion. Even if the brain trust inhabiting this blog could innovate an optimum “solution” for the many dilemmas associated with IP piracy, we would still be suffering from the cancerous growth of government nannyism.

  219. Random832
    > But what I was trying to get across is, there’s no real way to ban _only_ wholesale copying,

    So? Are you saying that sometimes the law is a blunt instrument? This isn’t a big surprise. There is a threshold point. Tune it left some works deserving protection don’t get it, tune it right and some derivative works get unfairly accused of being unoriginal. As I said there is no bright line. But the absence of a bright line doesn’t mean it isn’t obvious 99% of the time. Hard cases make bad law.

    > My point about the disney movies is, if copyright lasted forever

    But your point is only valid if the copyright law is turned way to the right (in the example above.) If a movie has to be pretty close to identical to qualify as a copyright violation then your point is not right at all. You can go make Snow White as long as you don’t just simply rip off what Disney did.

    If the knob tuned to far to the right? I’m sure it is.

  220. @TomA
    > we would still be suffering from the cancerous growth of government nannyism.

    So? That is true in all of life. That is what governments do. The price of liberty is eternal vigilance.

  221. @Jessica Boxer “The price of liberty is eternal vigilance.”

    It’s a nice slogan, but vigilance alone will just make us spectators to our own demise. A memetic war is playing out behind the scenes in our society, and today we lost a general (Andrew Breitbart). There is clearly a lot of intelligence and knowledge inhabiting this blog. I would hope that this resource could be harnessed in support of a great cause.

  222. @Brian Marschal
    I think you make two reification errors:

    1 Because there exist a term “Intellectual Property”, you assume that there actually exists something in the real world that behaves like a property on non-material, Intellectual concepts. I see “like a plot of land” examples when the behavior of the supposed “IP” could not be more different from a plot of land in every single respect.

    2 Because (your?) English seems to have no word for non-government censorship, you assume there exists no such thing.

    @Jessica
    I still think you should separate the definition of a practice, “Censorship”, from your moral judgement of that practice. There is no reason why some “IP” practices might be morally justified, while it still would consist “Censorship” under a useful definition.

    As you already stated, the law is a blunt instrument, but so are dictionary definitions.

    Btw, I too think the world would be better of without patents. The underlying reasoning was not odd at the time. But somewhere along the line, it crossed the line into pure destruction.

  223. @Winter on
    > 1 Because there exist a term “Intellectual Property”,
    > 2 Because (your?) English seems to have no word for …

    I think Winter is a Whorfian

    @Jessica
    > I still think you should separate the definition of a practice, “Censorship”, from your moral judgement of that practice.

    That is a curious statement. You said that all IP restrictions are bad because they are censorship. And now you tell me I shouldn’t assume all censorship is bad? It seems a kind of circular reasoning to me. “Censorship” is a word that carries with it a spooky evil music track in the background whenever you say it. It is more an emotional word than a word with clearly defined semantics. But I didn’t bring it up, that was you.

    But honestly speaking the propensity of governments everywhere to censor is a really serious and troubling problem. That is why it is a really bad thing to dilute the meaning of the word to claim that prosecutions for downloading the HD version of Avatar is somehow censorship.

  224. Being born & brought up in CT 80 yrs ago, Dodd & his father before him have made careers out of “serving the people”, people in this case, being themselves….Fat chance your msg. will be heard or embraced…………..

  225. It may be time to consider the ultimate weapon – turning the internet off, to get attention. It may be possible to get a number of major nodes to shut down for a short period of time. The network is still run by the community elders.

  226. >The network is still run by the community elders.

    Yes, and this community elder says that shutting down the entire Internet is (a) probably no longer in our power and (b) would be a hideously irresponsible thing to do if it still were.

    I say it’s no longer with our power because we engineered it to be robust against failures, including attacks by technologicaly knowledgeable people, including us. And that’s good.

    I say it would be hideously irresponsible because our economy and civilization now depends on the Internet; shutting it down even transiently would cost staggering amounts of economic losses and probably human lives.

  227. Please, don’t give in to their trick of calling copying “stealing”. It’s not. You’re only giving them credits on this by following.

  228. Great letter although I suspect that Chris Dodd is not likely to understand the concepts being expressed. My solution to Hollywood’s idiotic policies is to simply boycott their products. Considering that 99% of them are crap, this is a very easy thing to do. The last movie I saw in a theater was Jurassic Park and any DVD’s I buy are in the $5 sale bin. I use DCSS to rip the DVD’s to remove offensive ads and this allows me to create a digital copy which I can control access to. Back in the days of VHS movies, every tape of mine would have a time written on the box which was how far one had to fast forward to skip idiotic content that Hollywood wanted purchases of their product to be subject to.

    I refuse to purchase any product that uses DRM and consider it my right to break DRM for purposes of research. Treacherous computing is a danger that needs to be fought vigorously. What ESR didn’t get into was the dangers of software patents which are the most idiotic thing the US Patent Office ever came up with. What has resulted is the patenting of trivia and any decent programmer could independently come up with most of the patented “breakthroughs” given a specific problem and asked for a solution.

    Where the danger lies now is in the US led campaign to introduce legislation equivalent to the US DMCA and similar totalitarian bills in other countries. Canada currently has legislation which takes the worst parts of the US legislation and it’s spurred me to get involved in fighting crap like this again. When not programming, I work as a physician and what has been interesting is that Electronic Medical Records (EMR) in Canada have government funding only for proprietary closed source programs. There are several excellent open source EMR’s available, but such a concept is anathema to totalitarians who feel that they have to control every aspect of peoples existence even if it means costs on the order of $20 K/physician compared to $0 for the open source product. Being someone who reads every line of a user agreement before using a program, I’m pretty much limited to open source products as I can’t agree to license terms for closed source products. All of my computers are store demo models where someone else has agreed to the M$ license terms when windoze was installed so I just had a working system to buy.

    Being both a programmer and a Libertarian, I never thought the time would come when code would become politicized, but it has happened. I’m siding with the forces of freedom and politicians should be scared in a world that depends to such a degree on techies to keep things running. Any techie who’s any good generally believes in unlimited freedom of inquiry; in marked contrast to the statist ideology of limiting inquiry.

  229. Pingback: Digital Life | Pearltrees

  230. @Jessica Boxer

    I apologize for misusing the term “absolute”. However, I strongly suspect that – to extend the analogy a bit – the pointer on the ‘dial’ is sufficiently wide that its right edge will be too far to the right unless the left end is off the scale, unless copyright is interpreted as also inherently referring to creative derived works (in which case your argument that it “isn’t so much about intellectual activity” doesn’t apply)

  231. Direct and articulate, informed open letter. I learned a lot, and will tweet and it will get RT’d.

    Informed, educated and articulate comments as well.

  232. “the phrase “treacherous computing” to describe what happens when a PC, or a smartphone, or any sort of electronics, is not fully under the control of its user.”

    I’m actually less sure about this after seeing it put this way. Your blog’s server isn’t under the control of me or anyone else who is “its user” by posting a comment here. Why is this different, in principle? And if you don’t want to use a device controlled by a media company in your home, why isn’t that something the market can sort out?

  233. >I’m actually less sure about this after seeing it put this way. Your blog’s server isn’t under the control of me or anyone else who is “its user” by posting a comment here. Why is this different, in principle?

    Because your exposure is low, which makes the downside risk more tolerable. Anything you’re posting is intended to be public, so there’s no spying issue. You don’t rely on the blog server to organize or filter your media, so you can’t jerked around by covert censorship or spammed with ads. And the fact that you can’t use it as a general computing device is a red herring because you do in fact have the full power of a general computing device to manage the information it presents you with.

    >And if you don’t want to use a device controlled by a media company in your home, why isn’t that something the market can sort out?

    The market is in fact sorting this out as we speak. My open letter and the response to it are voluntary behaviors and thus part of the market. Android smartphones are heavily outselling iPhones (by a 3:1 margin in the latest month for which we have reliable figures). Media consumers are rejecting the heavy hand of the content cartel with Roku boxes and torrenting.

  234. This open letter is very, very well-written.

    I wish there was a better label than “philosopher/elder” but it’s adequate and I haven’t thought of a better one.

  235. You should have simply called yourself a leader.

    Yes, leading hackers is like leading cats inasmuch as it is nearly impossible to lead cats. However, to an outsider, you in fact are well-positioned to speak for hackers and you in fact do often organize us and tell us what to do. I am a prime example of this although nobody knows it yet. ;)

    Calling yourself our “philosopher/elder” is like qualifying every statement you make about open source by appending “but not all coders agree with me”. To outsiders it only makes you look insecure.

    I say call yourself “a leader” of our group (but not “the leader”) and move on. If you want a certificate to hang on your wall declaring you our official leader I’ll be happy to print one up for you…

  236. >I say call yourself “a leader” of our group (but not “the leader”) and move on.

    The issues around this are more delicate than you may realize. The terminological compromises I’ve arrived at don’t make me entirely happy, but I’ve had to give them a lot of thought since 1998 and I don’t see how to do better.

    You are correct that disclaiming the title of ‘leader’ carries the risk that outsiders will underestimate the scope and nature of the influence I actually have, or of presenting as a lack of confidence in my own stature that can hinder my ability to speak for us effectively.

    However, I also have to deal with internal politics, and the tendency I discussed in Ignoring the 5%. We are so wedded to the idea of unanimous consent that even people who agree with me about things like the Open Letter object on a metalevel to my implicit claim to speak for all hackers.

    Because I know there are many such people – and their objections are theoretically sound! – I cannot do what would be optimal for an outside audience and may I’m a “leader”. To do so would risk a blowback from within the community that would be as damaging, or more so, than the perception of weakness I invite from outsiders by saying “not a leader”.

    It’s a difficult line to walk.

  237. @esr mreoww??

    @Shawn I love that reference. It makes me wonder if maybe we’ll see one in the Halo 4…

  238. Jeff’s link is interesting. It seems Hollywood has persuaded the big ISP’s to voluntarily act as copyright “police”.

    To the extent that this development only affects so-called pirates, I do not see it as a huge problem for freedom.

    Now the big question is: will the ISP’s approach their goal with caution and respect, or will they abuse a bunch of innocent bystanders in their zeal to block actual offenders?

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  242. Not a great fan of ?Eric S. Raymond “politics” generally but he sometimes makes some good points. I found this rant heartening and feel more secure that “the Internet” will win against the Luddites as it appears that the freedom it spread will be protected by geeks from the right as well as the left.

    -T-

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