[Promotum] The real threat to freedom

[Edmund A. Hintz]

Thanks to Dan for this excellent writeup on the problems of the SSSCA, 
yet another preposterous pile of so-called legislation that is being 
thrown around Capitol Hill.


from the Lockergnome daily newsletter
http://www.lockergnome.com/issues/daily.html

Resistance is Not Feudal
Scribbled by Jim Girard

http://www.stoppoliceware.com/

A lot of people are excited about the SSSCA, a bill being put forward by 
a 
couple of U.S. senators on behalf of large corporate backers in the 
software and music industry, which would make it a crime (not just an 
actionable civil matter) for end users to copy certain kinds of 
information 
on their computers, or even attempt to read or play it, if the copyright 
holder didn't want it used that way. In company with the DMCA, this bill 
could conceivably make it illegal even to use software that COULD be used 
to accomplish that purpose (including open-source OS's, such as Linux).

If this bill were to be signed into law, it would represent the first 
such 
restriction on the individual use of intellectual property (at least in a 
Western democracy) since the Middle Ages. The medieval church, which was 
the primary institution of its day, comparable to the large corporations 
of 
the industrial era in its ability to influence or even dictate the 
policies 
of governments, controlled what was read and who got to read it. All 
books 
were held in church libraries and copied only by monks, and it was 
necessary to take religious orders even to learn how to read. We call it 
the Dark Ages. Fortunately, culture was being kept alive by the Moslems.

Those in the Holy Land kept having to fend off attacks by ignorant, 
religion-crazed terrorists from Europe, called Crusaders, who believed 
that 
butchering infidels indiscriminately would secure them a place in heaven. 
The invention of moveable type made it possible for writers and readers 
to 
bypass the church's control of information, and communicate with one 
another directly, which made it worthwhile for ordinary people to learn 
to 
read, and sparked the Renaissance. Ordinary people began reading the 
Bible 
for themselves for the first time, which sparked the Reformation.

The SSSCA (along with other measures being put forward by the people who 
now interdict the flow of information, for reasons of profit rather than 
religion) is almost certainly unconstitutional, and unlikely to become 
law. 
Although the current atmosphere, thanks to the destruction of the WTC, 
increases the odds a bit. My guess is that it represents a testing of the 
waters, to see just what degree of control the market will accept—and 
also 
a smokescreen, to divert the attention of those most concerned while less 
dramatic (but more pragmatically effective) measures slide through 
unnoticed, attached to bills ostensibly for other purposes. That's how 
things have been done for a long time now.

The biggest ally the RIAA and other such information middlemen have, 
however, is not their influence in government, but the degree to which 
people on the Internet—precisely the people who ought to know better—are 
willing to accept what these organizations tell them about copyright law 
and the ownership of information without looking into it themselves. It 
seems intuitively reasonable to most people that information property 
should be treated like any other sort of property, and that those who 
hold 
"title" to it (in the form of copyright) enjoy the same kind of absolute 
property rights they do to, say, their cars. But that's not true, never 
has 
been, and in fact is counter to the whole point of copyright law (if it 
weren't, copyright law wouldn't be needed).

If you leave your car in the driveway, with the windows down and the keys 
in the ignition, and someone drives it away, that's still theft. You're 
entitled to get the car back, and the other person can go to jail. Not so 
with copyrighted property. The burden is on the owner of the copyright to 
defend it. If he doesn't, it goes into the public domain (and it stays 
there forever). There is no way to recapture copyright to public domain 
works. If a big company issues a CD of ragtime-era music, the music on 
that 
CD doesn't somehow, magically, become the property of that company. If it 
did, I could reprint all of the novels of Dickens and Twain and claim 
copyright.

Copyright is a concept of the industrial era. It arose late in the 19th 
century, after the book publishers that evolved earlier in the century 
had 
established the basic industrial model that people now take for 
granted—large-scale packagers, distributors and merchandisers purchase 
copyright from those who create information, and resell it to the mass 
market of consumers, controlling the creator's access to his audience, 
determining what works will be available to the market (usually for 
purely 
economic reasons), and dictating prices at both ends of the chain. Like 
moveable type in the late Middle Ages, the Internet has introduced a way 
for the creators and end users of information to bypass that control and 
deal directly with one another.

Copyright did not come into being as a way of protecting inherent 
property 
rights. Quite the contrary. Since the Renaissance, the "natural" 
condition 
of information is that it belongs to society at large. Even under 
copyright 
law, it is not the work itself that is owned—even by its creator—but the 
right to make copies of it. Copyright law came into being to allow 
creators 
of information to support themselves in an industrial economy by 
exercising 
limited, temporary, property-like rights with respect to what they 
created. 
It has failed miserably in that purpose, by the way. Most creators of 
information still cannot support themselves by that alone. Only about 5 
percent of PUBLISHED novelists make enough from that alone to support 
themselves—not get rich, just support themselves. The numbers in the 
music 
industry are comparable. Those people who now say that "information wants 
to be free" are not spouting New Age mysticism. They are citing solid 
western legal and cultural traditions going all the way back to the 
Renaissance. A society requires a free flow of information to survive and 
advance. Cut it off and you get the Dark Ages—or the Soviet Union—a 
stagnant society spiraling into ignorance and poverty.

The members of the RIAA (to use a prominent example) are attempting to 
create the impression that they own all music—and at the same time 
attempting to create technology that makes that a de facto truth, and to 
pass laws enforcing it. The truth is, however, that the members of the 
RIAA 
(like other such entities) only own the copyright to a small minority of 
all musical works in existence or coming into existence. The vast 
majority 
of recorded music is either in the public domain, or the copyright is 
still 
held by the creator. Its members have commercial value in the mass 
market. 
Not the best ones, in any sense. The ones it thinks it can sell the most 
copies of, given the marketing structure it employs.

Make no mistake. There is a war being waged by the existing information 
industries, and it has nothing to do with the actual principles of 
copyright law, the rights of the creators of information, or anything of 
that sort. It has to do with the death of the mass market—the existence 
of 
large corporations who make their money by controlling the availability 
of 
what is available to consumers, and who rely on being able to sell the 
works they select in large quantities, and in the ways most profitable to 
them. The book publishing industry relies on the kind of mass-market 
demand 
generated by national best-seller lists, and is tightly linked to the 
film 
industry.

The big music companies make most of their money by selling songs nobody 
wants—the other songs on the album, apart from the two or three you 
really 
want. They are currently trying to give the appearance of wanting to 
participate in creating some sort of "legal Napster," but the truth is 
they 
only want to destroy that kind of market if they can, because it would 
inevitably mean great losses of profit. Is there any model that would 
induce you to pay the same amount for downloading the two or three songs 
you want, that you would pay in a store for the entire CD?

There is a widespread, mistaken presumption that stronger "digital rights 
management," the kind sought by the various information industries, also 
protects the interests of the creators of the works. It doesn't. I'm a 
published novelist, and all my personal income over the last decade has 
come from the copyrights I own, and I consider myself very lucky to be 
living in a time when I have the means to bypass the big publishers and 
deal directly with my readers. Without the middlemen, I can sell a book 
for 
half the price and make twice the money—but the truth is, I'd be happy to 
give my work away if I knew it was going to the people who really want it 
and appreciate it, and that was the only way I could get it to them.

We don't need these big corporations between us anymore—and they know it, 
and are doing everything they can think of to defend themselves, 
including 
attempting to criminalize the use of other models for the dissemination 
of 
information. A number of well-known recording artists and groups are 
actually opposing the RIAA, in its lawsuits against online organizations, 
by filing amicus briefs. That's because most serious writers, artists 
and—I 
assume—programmers are not doing it primarily to make a living or to get 
rich. It's nice if that happens, but there are lots of easier ways to 
make 
money, if that's all it's about. We do it because it's what we do, and 
the 
real payoff is getting it to the audience that wants it and needs it.

How many people who have worked for months, or years, to perfect a piece 
of 
software that works exactly the way they want it to, and that is unique, 
would sell it, for a million dollars, to someone who intends to destroy 
all 
copies and make sure that nobody else ever sees it or hears of it? Some, 
probably, but not many. And not the best. Would Chris take a million 
dollars to wipe Lockergnome off the face of the earth and agree never to 
create anything like it again? I doubt it. The people who run the 
information industries would pay the million—in a minute—if they thought 
it 
would somehow increase the bottom line. Their interests and ours are not 
the same.



Peace,

Edmund A. Hintz              **|**     "You may say I'm a dreamer,
Mac Techie, Unix Geek,      *  |  *      But I'm not the only one...
Mac/Unix Consultant        *  /|\  *     I hope someday you'll join us,
<ed@hintz.org>              */ | \*      And the world will live as one.
'78 Westy                    *****      Imagine."
                     http://www.hintz.org