RE: DMCA Alternatives

["Rick Anderson" <rickand@unr.edu>]

> Free as in freedom.  Information is inherently the common
> wealth of humanity, the moment it's communicated.  There's
> actually no two ways about that.

Wow, it's hard to know where to start with this.  First of all, "free as
in freedom" is a cute construct, but it's meaningless and it sidesteps my
question: in what way, exactly, is information "free"?  It's not free in
the sense of "freedom," because information is not an agent and has no
will of its own (Mr. Nietzsche, please sit down; I see your hand and I'll
call on you later).  And it's not free in the sense of being without cost,
because it doesn't exist unless someone invests time and energy in its
creation.

As for information being "inherently the common wealth of humanity," this
is, again, a stirring but empty statement.  If I write a novel, that novel
does not instantly become part of humanity's "common wealth," at least not
in any meaningful sense.  If it did, then I wouldn't have the right to
sell the publication rights.  How could I, if the novel is owned equally
by everyone?  Authors' rights are by no means limitless, but to argue that
everyone in the world owns an individual author's work equally is just
silly.

Most of this stuff can be argued about.  But the one thing about which
there really is "no two ways" is the fact that information only exists as
the result of human labor.  If our conversation about rights doesn't begin
with that basic understanding, it will inevitably be very muddled.

> The main legal citation for the facts/ideas vs. expression
> dichotomy is Baker vs. Selden, which I would guess is very
> likely the most commonly cited case of all US copyright
> proceedings, and which has been continually affirmed and
> developed since.

Baker vs. Selden established that there are types of publication
(specifically, in this case, blank account-books) that cannot be
copyrighted.  There's nothing controversial there, and I don't see its
relevance to the question of whether information is "free."  In fact, it
seems to me that Baker vs. Selden went the way it did precisely because
the publications in question were almost entirely _lacking_ in
information.  I'm certainly not arguing that ideas are (or should be)
copyrightable, nor do I hear anyone else making that argument.

> See the more recent Feist Publications decision regarding
> the notion that authors get exclusive rights as a
> consequence of the effort they exert in the production of
> their expressive works (the "sweat of the brow" doctrine).
> Feist Publications discarded that doctrine rather
> resoundingly.

No.  Read it again; Feist actually says just the opposite.  If the book in
question had been an "expressive work," the court would have upheld
Rural's copyright.  With Feist, the court affirmed that copyright law is
specifically meant to protect those who have gone to the effort of
creating original expressive works -- what it struck down was the argument
that a compilation of unoriginal facts (in this case, names and addresses
in a phonebook) is copyrightable, despite whatever "sweat of the brow"
might have gone into the compilation of those facts.  In other words,
copyright is for those who have created new information, not for those who
have merely compiled data.  (In fact, even in this case, the court
specifically pointed out that the plaintiff had legitimate copyright in
the phonebook as a whole, "because it contains some forward text and some
original material in the yellow pages"; the only part that was not
copyrightable was the plain data in the white pages section.)

-------------
Rick Anderson
rickand@unr.edu