About social balances

[Marcus Brinkmann]

Hi,

Jonathan, there is no doubt that one goal of the Free Software
movement is to "update" (read: change) the social contract that is the
underpinning of the copyright legislation.  Therefore the objection to
TC and DRM technologies can not solely be understood on the basis of
the current copyright framework.  The same is true, as you pointed
out, for the DRM technologies themselves: Their implementation will
violate the social contract in a number of ways.

I think there is no doubt that currently there is a battle raging in
the information world.  It is a battle over control.  However, the
battle is not between the authors on the one side and the consumers on
the other side.  It is big industry on the one side, and basically
everybody else on the other side.

To put this up front: It is no question if the author should be
compensated for his work or not.  The author should be able to live a
decent life from his contribution to society.  Of course, this does
not differentiate the british pop star from the african grain farmer.
The question of how authors are compensated is orthogonal to the other
questions discussed: There are alternative models that may solve this
question adequately, from micropayment to national funds.  It is a
challenge to make those alternative models of compensation work.  But
it is not a principle impossibility.  In fact, in Germany, we have the
"Verwertungsgesellschaft GEMA" which is a national fund which
compensates authors of musical works for public performances of them.
So, we know for a fact that such things can work.

You raised the issue of control over an author's work.  Should the
author remain in control over the work he produced?  You said that you
"believe that an author should be able to control the use of their
work within the limits and framework of copyright."  It is interesting
that you think so, because this makes you very European :) In European
law, there is a "right by nature" for an author to control the use of
his work.  This right can not be sold or forfeited.  I have not looked
very deep into the historical development of this natural right by
nature, but it seems to be bound to the integrity of the author as a
human and his work as a product of his personality.  However, from
what I know, this is quite special to European law.  In no other
region has society come to the same conclusion.

Ideas and expressions of ideas has usually been proprietarized _after_
it has been commoditized.  The copyright for books has also been a
product of the printing press.  The copyright on music has been a
product of scratching lines into a wax cylinder.  To say it in the
words of Eben Moglen:

  "Thomas Edison made it possible for music, which had been for the
  whole history of human beings an act of communion, a thing
  inherently shared, that music turned into a product, an object, a
  commodity.  And from the commoditization of art grew the belief that
  art could be owned.  Which made sense even when art was bumps on a
  thin piece of tin foil in a plastic disc."

Eben Moglen continues by explaining why this social contract has
eroded:

  "But art has returned to the formlessness from which it came.  It
  has returned to being what it was throughout the history of human
  beings until Edison: it has returned being something that must be
  shared to exist."

In his keynote to the Wizard of OS 3 conference in Berlin, where he
made the above remarks, he concludes that out of the ability to share
without material loss, grows a responsibility to share:

  "Billions of minds hungering for knowledge and for beauty, to whom
  everything can now be given.  In a world where everything is a
  bitstream, where the marginal cost of culture is zero, where once
  one person has something, everything can be given to everybody at
  the same costs that it was given to its first possessor, it is
  immoral to exclude people from knowledge and from beauty.  That is
  the great moral problem that the 20th century has be bequeathed to
  the 21st.  We can eradicate ignorance at the expense of a few.  We
  have to do it.  We cannot permit the voluntary starvation of most of
  the minds on the planet.  We have a duty; we have a joy; we are
  bringing to our colleagues, the human race, everything we know and
  everything we love; there is no higher pleasure than delivering what
  we love to those with whom we wish to share it, there is also no
  deeper moral obligation.

(http://emoglen.law.columbia.edu/)

The Free Software community has very consciously built, on top of
existing copyright law, a system where this promise is fulfilled at
least for a sub-culture.  It's a deeply political action, and
implemented very consciously by many of us.  "It puts us in contention
with power", as Eben expressed it.  This power now reacts, in the case
of the content industry with increasing desperation (the
telecommunication industry is smarter).  DRM and TC are technologies
which are not pushed to protect the consumer, they are pushed to
exploit them.  There may be a marginal industrial interest in enhanced
privacy, but I think if we look at the broad picture (Windows XP
security!?), and where the money goes (deals between Microsoft and
Disney, for example), there is no doubt in anybody of us here what's
going on.

Now, here is the catch: The industrial capitalism has brought this
fate upon itself.  Copying devices are a commodity because of the
ruthless competition that has made these devices cheaper and cheaper,
and ultimatively ubiquitous.  Maybe when all is said and done, we will
be able to say the same about TC.  Maybe we will get ubiquitous
privacy due to the technology now produced.  But if this is the case,
then, this is my predicition, it will be because we picked it up where
"they" dropped it, not because it was "their" intention all along, and
because we won the larger struggle.

You are now asking us to consider to support TC technologies for the
privacy they can achieve if used in a positive way.  We will have to
talk about this in more detail, but I hope that from my description
above it is clear why this is a dangerous game to play for us: Even if
we are completely successful in implementing such a goal, we might
ultimatively fail completely in the bigger struggle.  As an example:
You try to explain to your kid why every other kid in school can watch
the latest Disney smash hit, but at your home protecting your privacy
is more important.

So, it may be that we have a knee-jerk reaction against TC not only
because we fail to identify its potential for bringing privacy to
computer users, but also because between losing the battle or the war,
sometimes it's better to lose the battle, so to speak.

This is not meant to offer a definite and conclusive opinion on TC and
its applications, or on the right strategy in dealing with it.  But it
should offer some background and explanation.  And at least it calls
for some caution in determining which action to take in which context.

Thanks,
Marcus