MESSAGE
| DATE | 2004-12-23 |
| FROM | Ruben Safir
|
| SUBJECT | Subject: [hangout] Lost works from the web
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By Rubin I Safir
The Recording industry of America, and the Motion Picture Industry is
flooding Congress with proposals to combat peer to peer trading of music
and copyrighted material. They want to end what they call 'casual theft'
and to educate you about that is legal and what is right. The proposals
they put together will affect your future for a long time and affect
your life in a very personal way.
We agree with industry that theft is wrong, and that young people need
to learn the difference between theft, copyright violation, fair use,
the DMCA, force contracts, intellectual property, DRM and copyright
abuse.
What is intellectual property?
Intellectual property is bad term which has made it's way into our legal
system which is designed to describe creative works and intentions of
the mind. In the US, all intellectual property, that is music,
recordings, paintings, books, and writings, are owned by the public. The
people, according to the Constitution, are the sole owners of all
intellectual properties. In truth, this is a great insight by our
founding fathers. It's obvious that as a species, we naturally all have
a stake in our shared culture. In fact, culture and intellectual
property is largely interchangeable words. Unless an idea is shared, it
can not become part of our culture. Culture is the fabric of our
existence. And our rights to share equally in our culture is guaranteed
to us through several Constitutional guarantees, including Freedom of
the Press, Free Speech, The Right to Security in our Property, the
Freedom of Religion, and so on. Each of these guarantees assures us
Freedom, the Freedom to participate as equals in our larger society.
Anything that obstructs your Freedom to share in cultural expression is
a hindrance to your equality among men (and women). All intellectual
property is owned by the people.
What is copyright?
Copyright is a limited restriction on the peoples Freedom over the
control of newly created cultural artifacts, in order to promote the
publication of more works. Copyright is an 'exclusive' right of the
creator of a cultural artifact to prevent the distribution of replicates
of a cultural work. Copyright is limited by two principles of American
Law. First, Copyright is restricted by time. Copyright can only be for a
limited time. Congress can not create a law of indefinite Copyright
under the Constitution. Naturally enough, if works remain indefinitely
under 'exclusive' control of a few, then an aggregation of cultural
works are then controlled increasingly by a few major businesses. This
creates an erosion of Freedom, and eventually enslaves society as a
whole, making it a share cropper of our own cultural heritage.
Secondly, copyright is limited by those rights reserved to the people
under the Bill of Rights and other Constitutional Amendments. Copyright,
for example, can not be used to invade private property. You can not use
Copyright to discriminate against people of color by restricting
distribution to only white people. You can not use copyright to prohibit
freedom of speech, especially political speech. All these things limit
the 'exclusivity' of copyright.
What is Fair Use?
Fair Use is a legal doctrine grounded in common law, and later outlined
in section 102 of the copyright act. It's a legal defense against
accusations of copyright violations. While many think of Fair Use as our
protection from Copyright abuses, most legal scholars consider it as a
legal defense only. Copyright holders are not required, for example, to
prove in court that a use under consideration by the court is not a fair
use. The defense needs to prove that a use is fair use.
What is the DMCA?
The DMCA stands for the Digital Millennium Copyright Act of 1998. This
law was designed to give holders of Copyright franchises greater control
of the distribution of Copyrighted cultural artifacts, and to limit
access to these artifacts in society. This law is not only universally
considered to be written poorly, but is controversial because it, in
theory and in practice, encroaches on protections in the Bill of Rights
let for the people. It has led to the arrest of jailing of innocent
people trying to make proper use of their property. It also prevents
ownership of copies of cultural artifacts in digital forms, making
everyone a share cropper to their own cultural heritage.
What is a Sharecropper?
A sharecropper is a person, normally a recently freed slave or a serf,
who owns no property, but rents land, tools, and housing in exchange for
a portion of the produce farmed on the landlords land. They have no
rights to the land, tools or their home.
What is DRM?
DRM stands for Digital Rights Management. DRM is theft. It takes control
of your property, often a computer, but also a DVD player, a MP3
players, a VCR, or a tape recorder, any digital device used to play
media you own, and seizes control of your property by determining when,
where and how use can use it. The purpose of DRM is to make you a
sharecropper to your own media and property. It prevents you from
watching a DVD accept in a pre-approve place and time. It can prevent
you from viewing your media more than a specific number of times. It can
prevent you from fast forwarding through unwanted material, to prevent
printing, and copying for archival reasons in order to share the
information which you own. In addition, DRM can spy on you, and report
information about you to others, prevent you from using the devices or
software of your choosing to view the material, and prevent you from
archiving or using the material for creative processes.
For example, DRM currently prevents you from watching a DVD on anything
other than an approve device or operating system. You can not watch a
DVD with a DMCA approved DRM on the GNU/Linux operating system, or other
new operating systems on the market. Books purchased at universities
which must be brought on DVD turn themselves off at the end of the year
without subscription payments to the publisher. It is legal to sell the
books on the DVD second hand to another student. It prevents ownership
of purchased computers and media by forcing you into a contract after
the cash purchase and without a fairly negotiated contract. This is
called forced licensing. Forced licensing enslaves the purchaser by
forcing them into an economic agreement which they have no control of or
say in.
Without 'special' exemptions in the law, DRM prevents the normal
exchange of ideas and information. For example, lending libraries become
illegal, playing music for a friend on an non-assigned player is
illegal, sharing a research paper with a college is legal, mixing a
collection of music for a party is illegal, sharing a song with a friend
is illegal. With DRM, full control of where, when, and how you use any
book, music or video is the sole discursion of the Copyright Franchise
holder.
What is peer to peer trading?
Peer to peer trading is sharing a file with information between two
private individuals. This is the most fundamental human behavior which
defines us as a species. Our ability to share, communicate and
co-operate is how we develop our culture and define our existence. The
sharing of privately owned and publicly owned copies of information is
the lynchpin of democratic discourse. The peer to peer trading of files
for non-commercial use is legal in every sense of the word. Your
protected by the Bill of Rights in this activity. Your guaranteed
security in your property, freedom of speech, freedom of the press, and
against arbitrary search and seizure without a warrant. These
protections guaranty you the freedom to share music with other
individuals for non-commercial purposes.
For example, recently the House of Representatives took up a bill in the
Intellectual Property sub-committee which proposed that the recording
industry should be allowed to break into your computer and prevent you
from sharing files with others. During the testimony, Congressman Howard
Berman, the sponsored of the Bill proclaimed that, "Nobody is suggesting
that we end the sharing of files between individuals. That would violate
'Fair Use'". However, the recommendations currently being passed by
Congress and proposed by the Cultural Distribution Companies, such as
the record companies, and movie companies, have already done just this.
The recording industry is spending millions of dollars a year trying to
convince you that it is illegal and immoral to share music and other
information. You should know they are wrong. The act of receiving a file
with music, text or video from someone and listening to is not only
legal, but it is one of the most cherished rights of mankind. Our
ability to share information is the foundation of our society and the
basis of the civilization which you are a participant in.
What is Water?
Water is a natural resource available freely to everyone in a civilized
society, and in fact it's delivery and purity is subsidized by the
government.
What is bottled Water?
Water which is put in a bottle, marketed with advertising, and sold
under a trade mark.
What is Culture?
Culture is like Water.
What is a Copyrighted Work?
A copyrighted work is like bottled water. In the US, copyright law says
every new creation is automatically bottled water.
Why is this important to me?
Congress today is trying to pass laws which will end private ownership
of all computers in order to support copyright control. The recording
industry and movie industry resents you as a free person who uses the
culture around you in a natural way. There is serious efforts underfoot
to give the publishing industry preemptive rights in the use of any
media you buy, may it be a book, a video, or music. They want to be the
great gatekeeper of American Culture, dishing it out in small pieces to
those who they think fit.
Just in the last few months Congress has accused an entire generation of
file sharing people thieves. The are trying to impose smart chips which
spy on you into the hardware of your digital music equipment and
computers. They have proposed laws to allow the record industry to hack
into your computer and invade your privacy if they think your sharing
files of copyrighted works, without needing to get a warrant from a
court. They are doing everything they can to prevent you from ripping
music, or copying video. They are trying to turn the interactive
internet into a broadcast stream. They have made it legal for students
who buy required books for school, to have those books turned off at the
end of the semester. They want to end your ability to participate in
society through digital means. They have made this a crime. They have
arrested people for making it possible for owners to read their books,
and for people to watch their movies in their home.
The publishing industry is trying very hard to make you feel you live in
freedom, while simultaneously ending your freedom through digital
control. What is Digital Rights Management? It is the means to digitally
control your behavior in cases where they can not get you to agree to in
a contract. Everything created in the last 100 years is under copyright
control. This means every book report, every letter, and ballet and ever
photo in the 20th and now the 21st century is under copyright today. By
preemptively restricting access to your property because of copyright,
every normal activity is restricted by a third party.
It's been said that their is only "Freedom of the Press" for those who
own a press. Today, we all own a press, and it must remain a Free Press,
univocally owned and under control of the user.
Congressman Conlly of North Carolina, chairman of the IP sub-committee
in the house, stood up at the end of the hearings on the Berman Bill on
pontificated, "Can some here tell me why all this file sharing is not
theft. This is simple Larson." Congressman Conlly is wrong. Some
argument can be made that massive file sharing damages the value of
copyrighted works, and therefore, might be considered Copyright
Infringement. The record companies are afraid, however, to tell it's
public the truth, that in their opinion, you do not own any records, or
recordings. And that you can not use them freely and naturally. While
they tell congress that an entire generation of American's are thieves
and pirated, they refuse to prosecute a single one of them. Because then
everyone would be exposed to the copyright abuses that the law today has
created. It's your future they have shackled, and you can do something
about it now.
What can I do about this, nobody listens to me?
or
What can we do about it, why fight it, everyone in Congress is on the
take.
While fighting for your rights in the digital age is difficult, it is
not impossible. New Yorkers for Fair Use, http://fairuse.nylxs.com, has
fought this battle for over a year, and we have had success. We have
frustrated efforts in the Department of Commerce to impose DRM by
administrative executive action. We have succeeded in fighting against
laws which would allow the recording industry to hack your computer
without a warrant. We have raised on Capital Hill the slogan, DRM is
THEFT, We are the Stakeholders, but we have not done enough. With your
help, we can turn the tide on this battle. We can have the DMCA
repealed, we can put the burden of proof of infringement on the
Copyright Holder. We can make laws which ground the fair use doctrine
properly into the 4th amendment which guarantees individuals protection
in their property, and we can make sure that nobody is forced into a
license for music and information which they actually own.
Join New Yorkers for Fair Use and register to vote. Tell Congressman
Weiner that reserve for ourselves the right to trade files, and to share
information, without oversight of Time-Warner, Disney and Fox. Tell
Congressman Weiner that you will vote on this issue, and they he must
protect our rights. If file sharing is theft, which it isn't, then so be
it. But do not take control of our computers and our media. They are
ours.
NY fair Use is at http://fairuse.nylxs.com
NYLXS is at http://www.nylxs.com
____________________________
NYLXS: New Yorker Free Software Users Scene
Fair Use -
because it's either fair use or useless....
NYLXS is a trademark of NYLXS, Inc
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