Re: [dvd-discuss] On "Taking the Copy Out of Copyright"

[microlenz(at)earthlink.net]

This is a multidimensional problem. THere are legal, political, economic, 
moral, technical, societal issues here. All should be examined. All should be 
balanced. An analysis of legal issues is useful and desirable. So it the 
criticism of it from the other viewpoints. Look at how much time was spent 
debating the original copyright in 1790. It is important to realize that there 
are multiple aspects and that any one should not dominate over the others. 
(e.g, what we have today is the monopolistic dominance over the others). ALso 
that the balance will not be optimum for any one aspect..nor should it.

On 2 Jun 2002 at 0:17, Seth Johnson wrote:

Date sent:      	Sun, 02 Jun 2002 00:17:39 -0400
From:           	Seth Johnson <seth.johnson@realmeasures.dyndns.org>
Organization:   	Real Measures
To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	Re: [dvd-discuss] On "Taking the Copy Out of Copyright"
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> 
> While it has the appearance of courage for disavowing the
> notion of copying, it is perfectly concordant with the
> concept of restricting (fair?) information use to the
> private domain.  This much is clear.  Emphasizing the fact
> that it recognizes that "copyright" is a misnomer, doesn't
> obviate the fact that the authors propose an alternative
> that gives creators the same unprecedented right that the
> WIPO treaty cooks up.  If people fail to see what these
> authors are really endorsing, the difference in terminology
> will largely be a quibble over semantics.  People have a
> general misunderstanding of exclusive rights along these
> lines anyway.
> 
> There's no real way around it -- while the paper doesn't
> mention "moral rights" at all, the regime being proposed is
> perfectly concordant with the WIPO treaty, no matter what
> opinions people may adduce regarding whether it's a "moral
> right" or not.
> 
> As I said, the article's shortsightedness is perfectly
> typical as far as legal analysis goes, and it's a very good
> example of why it's so important to undertake a broad
> community-based initiative representing the *public's*
> interests in acknowledging the intrinsic nature of
> information and of technologies that facilitate its full
> use.
> 
> Seth Johnson
> 
> Ernest Miller wrote:
> > 
> > Ouch.
> > 
> > The brief paper mentioned here only deals with the issue of the right of
> > reproduction and right of public distribution.  We do not address the
> > issue of what works are protected or the scope of protection granted
> > those works (i.e., "derivative works").  The paper basically says that
> > your limited rights under copyright should not include the "right of
> > reproduction" (i.e., "copying"), but only the right to control public
> > distribution (not private distribution).
> > 
> > Frankly, I don't see how this paper endorses the issue of "moral rights"
> > for authors at all.  In the paper, it is argued that control of the
> > right to "copy" is tantamount to the ability to control all use of a
> > work.  Therefore, the paper argues, copying should not be a part of
> > copyright.  The paper explicitly makes the case that consumers should be
> > permitted to make whatever use of the work they want, absent public
> > distribution.  This is far greater freedom than current law provides.
> > Moreover, I don't see how this gives credence to any theory of "moral
> > rights."
> > 
> > Seth Johnson wrote:
> > 
> > > This otherwise very useful analysis nevertheless blankly
> > > ignores the most important aspect of information technology
> > > today: that the Internet is a collaborative public space for
> > > participatory engagement.  It provides the capacities to use
> > > and distribute information products with full flexibility to
> > > all citizens, not just to publishers who supposedly may
> > > somehow be demarcated from other people.  The analysis is in
> > > fact a remarkably pure representation of the general
> > > ignorance among "content" stakeholders, of the fact that as
> > > citizens in a free society, we are all information producers
> > > -- not consumers.
> > >
> > > The article basically proposes basing exclusive rights on
> > > the concept of controlling public distribution, rather than
> > > on copying.
> > >
> > > It appears to be an attempt to ally with some recent
> > > initiatives that have been building a truly cognizant
> > > analysis of the relationship between technology and
> > > "exclusive rights" in a free society [represented most
> > > notably recently at http://eldred.cc/news/#brief]. But it
> > > tries to link the analysis of those concerned with
> > > information freedom, with the terms of the recently ratified
> > > WIPO Phonograms and Performances Treaty, which declares an
> > > unprecedented "moral right" of creators to control public
> > > uses of their works.
> > >
> > > This shortsighted perspective is perfectly ordinary from the
> > > standpoint of legal analysis, but in the end it's a very
> > > good example of why it's so important to undertake a broad
> > > community-based initiative representing the public's
> > > interests in confronting the intrinsic nature of information
> > > and of technologies that facilitate its full use.
> > >
> > > Forwarded from DMCA Discussion list,
> > > dmca_discuss@lists.microshaft.org
> > >
> > > Seth Johnson
> > >
> > >
> > > -------- Original Message --------
> > > Date: Sat, 25 May 2002 20:42:08 -0700
> > > From: "Jon O." <jono@networkcommand.com>
> > >
> > >
> > > http://www.cs.yale.edu/homes/jf/MF.pdf
> > >
> > > Taking the Copy Out of Copyright
> > >
> > >
> > > by Ernest Miller and Joan Feigenbaum*
> > >
> > > 1 Information Society Project, Yale Law School,  PO Box
> > > 207286, New Haven, CT, USA 06520 {
> > > ernest.miller@aya.yale.edu }
> > >
> > > 2 Computer Science, Yale University, PO Box 208285, New
> > > Haven, CT, USA 06520 { joan.feigenbaum@yale.edu }
> > >
> > > Abstract.
> > >
> > > Under current U.S. law and common understanding, the
> > > fundamental right granted by copyright is the right of
> > > reproduction -- of making copies. Indeed, the very word
> > > .copyright. appears to signify that the right to control
> > > copying must be a fundamental part of any system of
> > > copyright. Nonetheless, we claim that this assumption is
> > > incorrect. The advent of digital documents has illuminated
> > > this issue: In the digital realm, copying is not a good
> > > predictor of intent to infringe; moreover, copying of
> > > digital works is necessary for normal use of those works. We
> > > argue that the right to control copying should be eliminated
> > > as an organizing principle of copyright law. In its place,
> > > we propose as an organizing principle the right to control
> > > public distribution of the copyrighted work.
> 
> -- 
> 
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