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

[Charles Nesson <nesson@law.harvard.edu>]

eldred

online please

eon

At 06:04 PM 7/29/99 , eldred@mediaone.net wrote:
>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/
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