Subject: Re: Thought crimes
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Thu, 28 Dec 2000 14:44:21 +0900

I doubt Samuelson would be interested in this, but feel free to pass
it on if you think differently, Karsten.

>>>>> "kms" == Karsten M Self <kmself@ix.netcom.com> writes:

    kms> It's fairly clear to me that copyright law is coming full
    kms> circle to secure and protect rights of publishers rather than
    kms> authors and society.

Picking nits: publishers and (when corporate) their owners are people,
too.  Thus members of society.  Note that Prof. Samuelson (if I got
the nested citation straight) specifies "consumers" as those who get
the short end of the stick, not "society."

Nor is there reason why authors or other private citizens can't be
publishers.  Why, look here, samizdat pulled down a whole nuclear
superpower.  How much more power do you want to give authors?  :-)

Furthermore, I do not understand why you exclude authors from those
whose rights are protected.  Publishers, as far as I have heard, are
not to be granted any new rights.  They must negotiate with authors to
acquire them.  What more can you do?  _The author has all the power ab
initio._  All you can do by weakening copyright and associated
technical mechanisms[1] is to _weaken_ authors by making the purchase
of their rights less profitable for publishers.

The point is that unless you get rid of copyright entirely, and thus
void the protections available to authors in principle, impecunious
authors are going to sell their birthright for a mess of pottage, an
ancient if disreputable tradition.

The fact that authors are in a relatively weak[2] negotiating position
reflects that fact that making gobs of money from a publication
requires massive investment in production, distribution, marketing,
and, of course, copyright enforcement.  Unfortunately, "authoring
ability" is personal, and difficult to instill in a corporation that
would have the same power as the corporations that assemble
"production, distribution, marketing, and racketeering[sic]
capability."  An Author's Union is a theoretical possibility[3], but
that would simply end up combining with The Publishing Trust and The
Bureaucracy to screw consumers, not to mention non-union authors.

Prof. Samuelson is quoted:

    Should rightsholders choose to make works available in a form making
    it impossible to make fair uses of them, for example, the White
    Paper sees no reason to be concerned about this development [...]

I note that the White Paper's logic is quite consistent with the logic
by which Stallman consistently refuses to revise the GNU GPL to
prohibit use of modified versions of GNU-licensed software without
redistribution by (eg) ASPs.  Many an ASP is nothing but a way of
preventing the user from making "fair use" (among other less fair
uses) of software.

Stallman certainly can't be accused of "being unconcerned", but he comes to
the same conclusion as the White Paper:  the technical means have to
be admitted.

Prof. Samuelson again:

    The White Paper seems to accept as a natural development that in the
    future the public will have access to works -- whether they are
    protected by copyright or not -- on whatever terms and conditions
    copyright owners choose to make them available.  In its view, the
    law of copyright imposes no responsibilities on rightsholders.

I don't understand this style of statement.  Surely the law says what
responsibilities are imposed on rightsholders?  I find the White
Paper's arguments compelling as to what is imposed on rightsholders.

True, as a citizen (and as an economist! all those tiny fair uses add
up to a lot of value) I find this interpretation of the law, combined
with the direction of technological progress, very disturbing.  But
since when does the law worry about things like that?  The law has its
own reasons, whereof reason does not know.  :-)

I certainly hope that the law will be amended to broaden rights to
fair use as necessary, and that it will not be amended to make
circumvention, as such, of "technical means" illegal.  But if
technical means invulnerable to circumvention were invented, the law,
as described above, seems pretty clear that it's tough titties for
would-be "fair users".  Or is there a grey area, such that if Roger
Ebert calls up Disney and says "I want the clip from 1:02:14 to
1:02:26 of your new movie to use in a review", Disney has to deliver
per "fair use"?  (Seems to me they'd be crazy not to, but crazy folks
have rights, too.)

BTW, are there commonly occurring, plausible examples of "fair use" of
works that can be stored on non-self-revealing media?  Otherwise, the
possibility of invulnerable technical means seems a non-issue.


Footnotes: 
[1]  Unless the technical mechanisms are restricted to members of the
Publisher's Trust by an exclusive patent license.  So bust the trust.

[2]  Depends on your point of view.  My current compensation rate from
reorganizing and selling articles that I've already pretty much
written, and could have been grabbed from the Web, to computer
magazines and book publishers is running in the neighborhood of
$250/hour.  They insisted; who was I to refuse?  Who has the
bargaining power?  I certainly don't feel any lack!

But of course that's not how I feed my family.  I would undoubtedly
feel differently in that case.

[3]  But possibly a violation of the anti-trust laws.

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