Re: [h2o-discuss] "The right to read" by Stallman gets implemented

[Eric Eldred <eldred@mediaone.net>]

another long discussion--let me know if you want to take this
offline....

pheras@acm.org wrote:
> Richard Stallman wrote a tale entitled "The Right to Read". It was
> published in the special issue of Communications of ACM, celebrating
> the 50 anniversary of ACM.

i've copied it from the gnu.org site (or acm) to:
http://eldred.ne.mediaone.net/right-to-read.html
...

> The news is that Buffalo University has implemented what could be
> considered an implementation of this nightmare.
> 
> Perhaps you can do something to stop this nasty future.
> 
> Links:  The Buffalo experience:
>         http://www.reciprocal.com/about/pr_07261999_01_p.html

1.  The Buffalo project appears to be using CD-ROMs as the
distribution vehicle, not the Internet, which the reciprocal.com
website expands on as the destination for its rights management
system.  CD-ROM makers have long been able to control printing and
prevent fair use, but doing this over the Internet would be more
interesting.

2.  The Buffalo project seems to have chosen Adobe PDF (? which
version) and the Adobe Acrobat reader.  It is not clear from
the article whether the printing restrictions are built into
the compiled PDF file (content) or whether they are added by
the rights management software from reciprocal.   

If they are part of the content then it would be hard to
see how the management software could control who could
pay for printing a page or even how to print a page.  Also,
the PDF file would prevent a blind reader using the Adobe
Acrobat accessibility plug-in from printing the file to
a text-to-speech synthesizer or a Braille printer.  Do blind
readers have a "right to read"?

It would seem that the "illegal to read" part must come from
the Digital Millennium Copyright Act (WIPO treaty) and its
threat to make illegal the opening up of such locked code,
assuming that the locks are added by the rights management scheme.
What is the progress on the actual enforcement implementation
of that act?

But if one wants an example of an earlier example of the
criminalization of reading one needn't go far--in fact,
I volunteer myself!  See my long essay, "Battle of the Books," at
http://eldred.ne.mediaone.net/battle.html

The point seems to be subtle, though, and easily missed without
dramatizations such as these.  

Back in 1983 Ithiel de Sola Pool wrote an overlooked book
("Technologies of Freedom," Harvard U.P., ISBN 0-674-87232-0)
that forecast the central role of First Amendment rights as
the information technology moved from the printing press
to electronic networks.  He points out that the broadcast
and cable industries have been regulated by the government,
but the print industries, mostly because they existed in the
time of the writing of the First Amendment, have been immune
from much regulation.

Consequently, I am rather proud to state that by scanning books
and posting them on the World Wide Web I am subject to
criminal penalties that would be inconceivable for a print
publisher doing the same thing.  It has reached the point now
where I could go to jail for an innocent publication on the
Internet that I share with my friends, while a similar
innocent copyright infringement in print would only draw
a cautionary letter from a lawyer.

This whole point of First Amendment rights in Eldred v Reno
was suggested by Jamie Boyle and incorporated by Larry Lessig
in the latest openlaw.  The responses from the government
and from the amicus brief are interesting because they fail
to see the point.  Yes, it is true that I have no right to
publish material that is copyrighted by others.  However, I
should have, in my opinion, the same right as a print publisher
to confront my accusers and settle the matter at a hearing.

The No Electronic Theft Act of 1997 and the Digital Millennium
Copyright Act of 1998 both criminalize copyright infringement
when the matter is digital and computers are used instead of
mere printing presses, and even when there is no monetary
gain, but rather some theoretical "damages" (attributable back
not to the prevention of the copyright owner from publishing,
but rather to the copyright owner's profit from restricting
the rights of others to publish, however that can be assessed).

Both acts together provide for the immunity of the ISP as a
common carrier ONLY if the ISP terminates the service of the
accused infringer.  Thus, any ISP that gets e-mail accusing
a subscriber of copyright infringing would either immediately
cut off the subscriber, or risk helping the infringer defend
herself.  But no ISP believes that any subscriber has a First
Amendment right to publish any material on that system;
instead, the contracts can be terminated at will by the ISP.

Therefore I would have to sue the ISP and try to determine
who is making the accusation.  Then I would have to prove
at a hearing that I was NOT infringing the accuser's copyright.
(Further, I run the risk of having my computers seized as well
--when is the last time you heard of a print publisher having
her printing presses seized--wasn't it the Peter Zenger case
in which a publisher went to jail that moved our law to
disallow claims of criminal libel, which turns out to be
much like criminal copyright infringement?)

This is much harder than having the accuser prove ownership
of a copyright.  Today, all creative expressions are copyrighted
whether or not they carry a copyright notice, whether or not
they carry the owner's name, and need not be registered (except
if you want to collect damages and attorney fees).  It seems to
me quite impossible for the Internet to exist if everyone
insisted on this definition of ownership of intellectual
property.  After all, all readers have to COPY the text of
the information into RAM or disk to read it.  QED, a paradox
("aporia"? in Boyle's fanciful term). (The paradox is not 
original with me--Boyle in "Shamans,
Software, and Spleens," p.52, cites a 1783 expression of it.)

Although ignorance of the law is no excuse, it seems to me
the height of disrespect for the govt to pass laws that
a reasonable and prudent person has no choice but to
routinely violate, and run the risk of what Boyle calls
PRIVATE CENSORSHIP by monopoly media conglomerates, to
control the flow of information necessary for our democracy.

Because you have to look at the ACTUAL state of our economy
and our society to see whether the values of the Constitution
and Bill of Rights are being implemented by new laws.  It
seems to be the case that monopoly corporations are valued
higher in our public laws than little old me with my cable
modem and obsolete PC.  The paradox can be extended:  if
there are sufficient grounds to discriminate against me under
the law, as a publisher, solely because I am one citizen with
a computer, why does not the discrimination carry over against
the large corporation with computers?

Much of the protection of the First Amendment has to do with
an inclination to tilt the balance.  There is and ought to be
a prejudice against interfering with private transactions as
against public ones, against commodifying private rights as
property goods.  Yet the NET and DMCA laws do not make the
proper distinctions.

Recently my daughter, who is a student at Bennington College,
wrote a paper on Ovid.  Another of my daughters attends
the University of New Hampshire, which happens to have in its
library the very books on Ovid that the first daughter needed.
I borrowed the books from the library and sent them to
Vermont.  Suppose instead I had bought the books (sorry, they
are out of print) and sent those copies?  Any difference?
Suppose I had sent photocopies of certain paragraphs from
the books?

Now suppose I scanned the books and emailed the texts to my
daughter?  Suppose I posted the scans on my FTP site for my
daughter to download and read?  Suppose I allowed anyone to
read the text files from my FTP site?  Suppose I put them
on my web site?  Suppose it were a video tape I had made
from broadcast TV?

Where is the right place to draw the line?  Should the
monopoly publishers have a right to draw it anywhere they want?
Which division best preserves the values of promoting
innovation at the same time as preserving the free flow of
information?  All these are questions which, if they please
the Court, are now a matter to decide in Eldred v Reno.

Then, we may hope, it will no longer be a crime to read
and share a book!  (Though the battle doesn't stop there.)

-- 
"Eric"    Eric Eldred      Eldritch Press
mailto:EricEldred@usa.net  http://eldred.ne.mediaone.net/
"support online books!" http://eldred.ne.mediaone.net/support.html