[WSIS CS-Plenary] Re: [A2k] Re: [Wsis-pct] IP Justice Comment to IGF on Top PolicyIssuesforAthens

[Seth Johnson]

Taran Rampersad wrote:
> 
> This is my last email in this thread. I could go blue in the face
> explaining that not everyone sees things the same, and have it
> continuously lost in discussion. I see problems being attacked at the
> same level of thinking that created them, and it disturbs me. I won't
> lose sleep, though. :-)
> 
> And again, this started off about the wording of 'DRM' in a software
> license. Instead of using a name which more than likely will change, why
> not attack what's wrong with what it does within the license?
> 
> Seth Johnson wrote:
> >> Some people call these 'rights' 'freedoms', as in the GPL.
> >
> > If you take "rights" in the "as numerous as the sands on the
> > beach" view of human rights, the view that held that enumerating
> > rights by adding the Bill of Rights to the US Constitution would
> > not limit our rights to those alone, then maybe.  The GPL is an
> > instrument for assuring some freedoms that are not enumerated in
> > law -- specific freedoms we should have in code.  I would agree
> > that these are rights, but that's not the world we're living in,
> > so we approximate it with the GPL.
> >
> And thus, one could say that freedoms are being protected by the GPL.
> Is freedom a right? Or is it only for a select few people, Seth?


Who's losing their rights?  Who's losing their freedom?


> But again, this started off about the wording of 'DRM' in a software
> license. Instead of using a name which more than likely will change, why
> not attack what's wrong with what it does within the license?
> >> The use of copyrighted works is a contract. So I was unclear. I'm sorry.
> >
> >
> > Nope.  The use of copyrighted works is not a contract.
> >
> OK, Seth, I'll play: What is the use of copyrighted works, and how does
> it vary from the use of public domain works? Explain that.


You should double check your repeated assertions that copyright
licenses are contracts.  That's fundamental to your
misunderstanding.

There is no consent involved in a copyright license.  The author
declares the terms in accordance with the exclusive rights the
author holds.

There is no exclusive right to use.  I can use a published
copyrighted work quite freely -- that's the whole purpose of
copyright: to publish information, to give us all information to
use.  The exclusive rights of the author apply to their original
expression, not the factual elements of their work.  I have no
need to await the end of the copyright term to make use of a
published, copyrighted work in this manner.  Public domain works
simply are works for which I can also distribute copies of the
author's original expression.

This is basic, traditional copyright.


> But again, this started off about the wording of 'DRM' in a software
> license. Instead of using a name which more than likely will change, why
> not attack what's wrong with what it does within the license?


The license in question does not use the term "digital rights
management."  I stated clearly that "digital restrictions
management" is what's wrong and is a generic term that serves
your concern completely.


> >> Well, there's the author and there's the person who owns the copyright.
> >> The creator isn't necessarily the person or entity who owns the copyright.
> >
> > The copyright holder doesn't actually have the rights that
> > "digital rights management" tries to give them.  "Digital rights
> > management" just makes stuff up.
> >
> I think if we got past how this label sticks in people's minds instead
> of how it's being incorporated, we might negotiate meaning instead of
> arbitrarily defining it by warm fuzzy and cold prickly feelings. You've
> been asking for definitions, but it seems your basis is that what other
> people name something defines what it does, at least for you.


Huh?  I asked for a concrete illustration of what you mean by
"digital rights" -- particularly for copyright.

What people name something confuses many people.


> All I've
> been asking you and others to do is to take 3 steps away from your own
> thoughts and look at the bigger picture when it comes to that phrase.
> I'm not here to argue with you or prove a point; instead I am having
> something I have feared being proven to me. I shouldn't be surprised.


No, let me suggest you stop being all eager to advise people to
learn how to use language.  That only encourages them to show you
your own defects in that area.


> But again, this started off about the wording of 'DRM' in a software
> license. Instead of using a name which more than likely will change, why
> not attack what's wrong with what it does within the license?


Read the freaking license.

> http://gplv3.fsf.org/draft


> >> Umm. I think you misunderstood, or I was not clear. I didn't say that
> >> people would think that they do have rights because of all of that.
> >
> > You said that people think the present implementation defends the
> > user's rights.  You said that by way of introducing your "user
> > digital rights/author digital rights" motif, in response to my
> > pointing out that "digital rights management" could be read two
> > ways, neither of which is normally regarded as about "user
> > rights."
> >
> Would you agree that the instantiation of DRM we see now is nothing more
> than evolved 'copy protection'? That's what 'DRM' has been defined as in
> your mind, I think.


I stated at the outset that the problem with DRM is when it is
applied to copyright.  I specifically recommended that you
separate private interest concerns such as privacy, security and
anonymity from the term, and that this is my position regarding
the technology -- I oppose it as long as it is not distinguished
from copyright.  Instead of preaching all about how people need
to appreciate a bogus term, try addressing what people are
actually saying to you.


> Like religions with sects, there are
> fundamentalists, extremists, and so forth. We could call the present
> implementation of DRM 'extremist' (complete with suicide CDs), an act of
> terrorism, etc... but that doesn't make everything labeled 'DRM' bad, or
> I would hope that it wouldn't.


Oh goodness.  Would you just read the freaking license?


> I suppose it's the easiest way for people
> to handle it, but 'easy' doesn't make something right, even when you
> shave with Ockham's razor. Negotiating human meaning is quite different
> than dealing with a compiler. But again, this started off about the
> wording of 'DRM' in a software license. Instead of using a name which
> more than likely will change, why not attack what's wrong with what it
> does within the license?
> > Hardly anyone thinks "DRM" defends user's rights.  They mostly
> > think that the "rights" being "managed" are the author's.
> >
> This is arbitrary. It was folly of me to bring it up, since the point
> was moot, but I thought I was having a discussion that would allow me to
> get a better feel for what people who are strongly biased against DRM
> feel. As Don said so wittily, there is no middle ground between the pro
> and anti-DRM. But my point is this: The relevance of the WORDS 'DRM' are
> arbitrary. But to you, they have a meaning which (strangely) you are
> defending! But again, this started off about the wording of 'DRM' in a
> software license. Instead of using a name which more than likely will
> change, why not attack what's wrong with what it does within the license?
> 
> >> ********And honestly, everyone is sidestepping the main point that
> >> started this: Next year, people who advocate DRM may be calling it Bob.
> >> Attacking DRM in a software license might work next year, but shall we
> >> draft everything all over again when they call it Bob? Labeling it DRM
> >> and forgetting about it won't work. It will be back. It's got a nice tag
> >> now for what is undoubtedly
> >>
> >>
> >
> > A valid generic term and definition would suffice.  "Digital
> > restrictions management" would pretty much cover it.
> >
> And Digital Restrictions Management in a software license is as
> arbitrary as calling it 'Bob'. The license still doesn't solve the
> problem you are quite vehemently against. But again, this started off
> about the wording of 'DRM' in a software license. Instead of using a
> name which more than likely will change, why not attack what's wrong
> with what it does within the license?


Again.  Read the freaking license.  You are not actually thinking
about what I said.  A generic term takes care of your concern. 
It's right there.


> > Free Software is what it is.  "Octophobia" is not fear of
> > octopuses.
> >
> Ahh. The root of all this is exactly that words and phrases can mean
> more than one thing. If you can't see that, much less agree to it, than
> further discussion is pointless. But again, this started off about the
> wording of 'DRM' in a software license. Instead of using a name which
> more than likely will change, why not attack what's wrong with what it
> does within the license?


Yes, I just don't agree that words and phrases mean more than one
thing.  I don't have a clue about how language works.  I don't
think other people have different points of view.  I'm a
numbskull.

Read the freaking license.  Read what I say, and think, instead
of playing nominalistic games.


> >>>> Perception is a powerful thing. The phrase is not broken out by either
> >>>> side - the people who are for or against. What really are the Digital
> >>>> Rights of people? Of creators? Of users?
> >>>>
> >>> There are no valid "digital rights."
> >>>
> >> So, people don't deserve to be treated equally on the internet? What
> >> about security? The ability to discuss things openly without being
> >> persecuted? The right to freedom of speech? All within a subset of
> >> computers, this could be seen as 'digital rights'.
> >
> >
> > Why do we need "digital" rights?
> >
> Maybe you don't. Brow beating people with other perspectives is a
> wonderful tactic, but generally speaking digital rights are about human
> rights within a digital framework.But again, this started off about the
> wording of 'DRM' in a software license. Instead of using a name which
> more than likely will change, why not attack what's wrong with what it
> does within the license?


I see a pattern here.  Don't let me repeat myself.


> > Give me an example that shows what a "digital right" would be.
> >
> Sure. The right to write something on the internet and not be shoved in
> jail for criticizing the government.


Okay: so what does that have to do with "digital rights
management?"

Why is this notion of a right in a digital context relevant to
your discussion of "the wording of 'DRM' in a software license
[and] Instead of using a name which more than likely will change,
why not attack what's wrong with what it does within the
license?"

If all you mean by "digital rights" is rights exercised in a
digital context (not digital rights of users and digital rights
of authors of copyrighted works), then I would suggest not
talking that way in defense of using the term "digital rights
management."

(Note well: the immediate above is the discussion we should be
having -- though you still haven't suggested how "digital rights"
apply to copyright.)


> If you need more, take a serious
> look around. But again, this started off about the wording of 'DRM' in a
> software license. Instead of using a name which more than likely will
> change, why not attack what's wrong with what it does within the license?


I see a pattern here.  Don't let me repeat myself.


> >> What is digital activism? What is the Digital Divide? Why not Digital
> >> Rights? Or would people be more comfortable with Digital Freedoms? Come
> >> to think of it, they might call what is being implemented as DRM as
> >> Digital Freedom Management next year after DRM is clad in the GPL v3.
> >
> >
> > Anything that speaks of "managing" "freedom" would be
> > "restrictions management."
> >
> But if I use my freedom to curtail the freedom of others, am I not
> infringing on the other people's rights?


Not always.  Authors imagine all sorts of "freedoms" or "rights"
for themselves that need to be curtailed, because they basically
don't actually legitimately have those "freedoms" or "rights."


> Is freedom a right, or is it
> for the select few? If freedom is not for the select few, then it is a
> right. But again, this started off about the wording of 'DRM' in a
> software license. Instead of using a name which more than likely will
> change, why not attack what's wrong with what it does within the license?


Uh huh.


> >> And then people will say, "wow, we never saw that coming!"


Wait til you read the freaking license.


> >>>   Describe a "digital right"
> >>> -- in particular, describe how "digital rights" would work under
> >>> copyright.
> >>>
> >>>
> >> Why does it have to be just copyright for you?
> >
> >
> > Because copyright is the problem.  If digital restrictions
> > management is used for copyright, it's wrong.
> >
> You're moving back and forth to try to maintain your vantage, but when
> you deny that there are 'digital rights' you've been denying that there
> are copyrights.


Oh get real.


> Even the GPL disagrees with that since it's based on
> copyright, and is a copyright license. But again, this started off about
> the wording of 'DRM' in a software license. Instead of using a name
> which more than likely will change, why not attack what's wrong with
> what it does within the license?
> > When are you going to describe a "digital right?"  In particular,
> > please describe how "digital rights" would work under copyright.
> >
> The point is that something has to work. Copy protection - what you call
> DRM - doesn't work. Copyrights were much easier to deal with for
> publishers prior to the internet because they could control the media
> physically. On the internet, they cannot do that so they are trying to
> control the systems which connect to the internet. That's bad.
> 
> But users should have rights as well, and when used in the context of
> the internet or digital media, they could be called digital rights.


They actually have the rights they need.  They're simply being
obstructed.


> And those digital rights, I believe, include fair use which copy
> protection schemes do not allow for (not to mention laws). But again,
> this started off about the wording of 'DRM' in a software license.
> Instead of using a name which more than likely will change, why not
> attack what's wrong with what it does within the license?


Mm-hmm.


> >> Why can't digital rights
> >> be 'freedoms'? I'm not telling you what digital rights are And bear in
> >> mind, that the context of the original discussion was related to the GPL
> >> v3 as related to the Internet Governance Forum, which certainly has a
> >> broader context than the tendril of this discussion about a 'basis of
> >> neologism'.
> >>
> >>>> What is a digital signature? That's much easier, and sheds some light on
> >>>> things. Signature is not confusing to people. 'Rights' is because not
> >>>> only does the average person stutter when questioned what their rights
> >>>> are, they also tend to think of rights as centered around themselves.
> >>>>
> >>>> When I think of digital rights, I think of my rights in a digital world.
> >>>>
> >>>>
> >>>>> You represent the first empirical instance I have encountered of
> >>>>> someone who actually expressed a belief in such a thing.
> >>>>>
> >>>>>
> >> Maybe not. I decided to Google
> >>
> >> http://www.digitalrights.dk/
> >>
> >
> > "Digital Rights is a non-profit civil organisation aimed at
> > raising awareness of rights in the digital world"
> >
> Yes, I read that. So what do they define Digital Rights as, Seth? Did
> you check that?


Nope.  Don't see it.  Got a link?  I see a list of articles
authored by the group.


> >> http://ukcdr.org/
> >>
> >
> > "The Campaign for Digital Rights campaigns for fair and balanced
> > laws for the information society.
> >
> > "We support:
> >
> >     * freedom of speech online
> >     * positive fair use rights for copyrighted material
> >     * narrowing anti-circumvention laws
> >     * honest labelling of copy-protected CDs
> >     * the BBC's Creative Archive
> >
> > "We are a group of citizens who are concerned about control over
> > digital media. In particular, we are worried about proposed laws,
> > regulations and technological systems that will make digital
> > media more expensive, less useful, less diverse and less
> > democratic."
> >
> Yes, I read that. So does this answer some of your question?


It doesn't tell me 1) that they espouse "digital rights" the way
you do or 2) what you mean by the term.


> >> http://news.bbc.co.uk/1/hi/technology/4617176.stm
> >>
> >
> > "The National Consumer Council (NCC) said anti-piracy efforts
> > were eroding established rights to digital media."
> >
> Yes, I read that. But I notice that you didn't post the title.


Wasn't posting titles in general.  Might have been better to have
done so.


> >> http://www.digitalrights.ie/
> >>
> >
> > "Digital Rights Ireland Ltd is a body devoted to defending Civil,
> > Human and Legal rights in a digital age."
> >
> Very good, Seth, this copy and paste thing is really working.


Right.  I'm not going to find a lot of people calling for
"digital rights" as such the way you do.  They're all going to
talk about established rights.


> >> http://www.digital-rights.net/
> >>
> >
> > "Human Rights in the Digital Age"
> >
> > No one specific quote summarizes it well, though it is a
> > compilation of essays about applying human rights in the digital
> > age, and I see none espousing "digital rights."
> >
> Yup, read that too.
> >
> >> http://www.edri.org
> >>
> >
> > "European Digital Rights was founded in June 2002. Currently 21
> > privacy and civil rights organisations from 14 different
> > countries in Europe have EDRI membership. Members of European
> > Digital Rights have joined forces to defend civil rights in the
> > information society. The need for cooperation among European
> > organizations is increasing as more regulation regarding the
> > internet, copyright and privacy is originating from the European
> > Union."
> >
> >
> >> There's 5. If you really decide to look, you'll find that the phrase
> >> 'digital rights' shows up a lot and has different meanings to different
> >> people.
> >>
> >
> >
> > I added one more.  They all appeal to applying recognized human
> > rights in the digital age.  None espouse "digital rights" --
> > though ukcdr might be read as aiming that way, yet still I doubt
> > they would argue for "digital rights" so much as protecting
> > recognized rights in the face of certain policymaking activities.
> >
> > You're the one talking about "digital rights" like they ought to
> > be something on their own.
> >
> > I still haven't heard what a "digital right" would be.
> >
> Read above about not being thrown in jail for criticizing the government
> on the internet. In the context of the internet, where groups are
> focusing on globalization issues related to the internet, the meaning is
> not as well defined as you wish for. Perhaps you could start off with
> stating what rights you have on the internet that you have? Do you have
> no rights when using a computer? A mobile phone? And again, if you claim
> that you support freedom but do not establish freedom as a right, what
> are you really doing?


All of a sudden, when I'm on the Internet, I have no rights any
more.  Guess I need to "manage" some "digital rights."

I have continued the discussion on the bases you have presented:
the right to access the digital world, and the right to criticize
the government on the Internet without being shoved into jail.


> >>> No.  Simply cease encouraging people to confuse these areas,
> >>> using terms that are explicitly designed to get people to confuse
> >>> these areas.
> >>>
> >> I didn't start the fire, Seth. I'm just telling everyone that there is a
> >> fire.
> >
> > No, *I'm* telling *you* there's a fire.  You see smoke, and you
> > say let's work with the fire that must be over there, or work
> > around it, rather than go and put it out, and prevent it from
> > happening again.
> >
> No, Seth, I'm telling you that fire is bad when you stick your hand in
> it, but if you use it wisely you can cook your food.


Well, that's a fire that you probably would have started.


> Fortunately, the branch of society that was screaming about the 'evil
> burning hand flame' probably died, though perhaps a recessive gene still
> haunts us.
> 
> And again, you're mixing two separate discussions to try to support what
> you already believe. You might be surprised that in a lot of ways I
> agree with you, but to be truly circumspect I have to go beyond what I
> believe and see the larger contexts. I'd hope others would do the same.
> Obviously, everyone on the planet doesn't agree on things.


Nope.  I was asking you to start from brass tacks.  I have made
my point with reference to the examples you offered (neither
having to do with copyright, I must add).


> >>>> The right to be treated
> >>>> equally. The right to be allowed to use what you have as you wish, as
> >>>> long as it doesn't adversely affect others. So on, so forth.
> >>>>
> >>> I can use copyrighted works in ways that might be disadvantageous
> >>> to the author.  The author only has a few rights.  None of them
> >>> "digital rights."
> >>>
> >> Oh, enough about copyright already. Copyright isn't the only part of
> >> this, as the links should demonstrate to you.
> >
> >
> > "The right to be allowed to use what you have as you wish, as
> > long as it doesn't adversely affect others" is inappropriate for
> > copyright.  All of the links you point at highlight the fact that
> > copyright is fundamental to the problems we're confronting in the
> > digital age.
> >
> And I never denied that. But if the problem is copyright, why not
> address the problem?
> 
> Tell us, Seth, how do you believe all of this should be run in a manner
> that allows everyone to pay their bills, create things, and not screw
> over users? Maybe something is working for you, or maybe you believe
> something will work in the future, but right now there are entire parts
> of the world that are trying to do the same and are looking for answers.
> Maybe you're in a position where you have all the answers. I don't.


Think about what I've said.  My point is obvious.  Most of the
problems are resolved by applying traditional rights, and most of
the problems are created by bogus notions of copyright --
certainly those associated with the term "digital rights
management."  All the other problems have little to do with
"digital rights management."


> And because I don't have all the answers, I consider it worthwhile to
> allow for a future that I do not expect or believe in. Hallelujahs don't
> feed people. Someone offlisted me a paper about publicly funded works,
> which I like but there are concerns I have about anything that is
> centrally controlled. But at least I got something back from them,
> something of worth and something that allowed me to consider other
> options.What options would you present? How would a poet in Ethiopia,
> with a computer connection, be able to make enough money to pay the
> bills? What's your answer?


Their making money that way is not a given.  First thing I say
is, traditional copyright provides all the guidance we need --
the problems are not with a failure of traditional copyright;
they are that traditional copyright doesn't give the kinds of
control that some are seeking.  Copyright is not a prior
restraint; it's a recourse.

The second thing I would say is, once we get that out of the way,
let's actually talk about whether the traditional royalty system
should be preserved in the interest of things like ubiquitous
filesharing.  But that discussion will take place only once
people stop harping on bogus notions of copyright like those
conveyed by "digital rights management."


> But again, this started off about the wording of 'DRM' in a software
> license. Instead of using a name which more than likely will change, why
> not attack what's wrong with what it does within the license?


Uh huh.


> > "Rights which are related to digital things."
> >
> > "The creator's rights and the user's rights."
> >
> > "What is a digital signature? That's much easier, and sheds some
> > light on things. Signature is not confusing to people. 'Rights'
> > is because not only does the average person stutter when
> > questioned what their rights are, they also tend to think of
> > rights as centered around themselves."
> >
> > "When I think of digital rights, I think of my rights in a
> > digital world."
> >
> > "[. . .] the reason that I've brought [DRM] up is because I
> > believe that people do have rights, we are having discussions on
> > the digital world, and also because like any other thing it could
> > be used sensibly or not. So instead of attacking this from a
> > technical center, let's toss in human rights to the mix. Not just
> > copyright and patent and software. Rights. The right to be
> > treated equally. The right to be allowed to use what you have as
> > you wish, as long as it doesn't adversely affect others. So on,
> > so forth."
> >
> >
> > Nothing stating what a "digital right" would be.
> Maybe because you've decided that you believe that there are no 'digital
> rights' and have been working rather hard to defend your position. I
> don't have the luxury of a trench, but outside of trenches, the horizon
> on all sides encompasses more surface area.


I've been asking you to freaking explain yourself.  You've
started.  But you're not really addressing anything I'm telling
you about copyright or licenses or anything else.


> Again, this started off about the wording of 'DRM' in a software
> license. Instead of using a name which more than likely will change, why
> not attack what's wrong with what it does within the license?


(Freaking license.  Read.)


> Spike the ball on your end of the field if you wish, but I wasn't
> approaching this as a competition. I was trying to raise a little
> awareness.


You wish to discuss the use of the term "digital rights
management."  I ask you to explain your use of the term "digital
rights."  I have answered your questions perfectly reasonably,
and presented my basic position from early on.  If you want to
discuss the term "digital rights management" with me while using
the term "digital rights" you might find it useful to explain how
your use of that term relates to copyright and the phrase
"digital rights management."

Preach to people who have considered these matters extensively
about how to use language instead, and I suggest that you
consider that you may just get the same response again.


> Maybe it worked, maybe it didn't. Time will tell. Maybe
> you'll try to define what rights you have when you're on the internet
> instead of having someone define those rights for you.


See above.  It doesn't seem to me like what I've said about my
position really requires a whole lot more clarification.  You
might need a little more explanation about copyright, licenses
and contracts.


Seth



> And that's a start.
> 
> --
> Taran Rampersad
> Presently in: San Fernando, Trinidad and Tobago
> cnd at knowprose.com
> 
> Looking for contracts/work!
> http://www.knowprose.com/node/9786
> 
> New!: http://www.OpenDepth.com
> http://www.knowprose.com
> http://www.digitaldivide.net/profile/Taran
> 
> Pictures: http://www.flickr.com/photos/knowprose/
> 
> "Criticize by creating." — Michelangelo

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