Re: DMCA Alternatives

[Seth Johnson <seth.johnson@realmeasures.dyndns.org>]

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.

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.  Here's a Findlaw URL:

> http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=101&page=99

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.

> http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=499&invol=340

The thing I was referring to in my last line was your reading of the
exclusive rights clause in terms of financial incentives for authors,
which talks merely in terms that current statute seems to encourage.  
However, digital information and communications technology have changed
the circumstances such that the option of content control that keeps
getting presented from various quarters, actually works in a manner
contrary to the purpose of the exclusive rights clause, as well as
interferies with numerous other principles embodied in the US
Constitution.

Seth Johnson

Rick Anderson wrote:

> > Information is free, both intrinsically and as a matter
> > of established jurisprudence, wherein the distinction between facts and
> > expression has consistently been upheld.
> 
> In what meaningful sense is information "free," given that
> it exists only as the result of human labor?  I would argue
> to the contrary -- that information is invariably costly,
> and that the rights of those who labor to create it can
> certainly be ignored, but do not disappear simply because
> someone chooses to ignore them.  The same is true of costs
> -- you can shift them, but you can't make them go away.  If
> information exists, someone has paid for it either directly
> or indirectly.  (And what exactly is the "established
> jurisprudence" to which you refer?  Can a legal opinion
> make information come into existence magically, without the
> investment of human labor?  If it can't, then how can it
> make information "free"?)
> 
> > > which it does by making it possible for authors and artists
> > > to profit from their work.  Give people a financial
> > > incentive to create information, and you'll tend to get
> > > more information.  Once it's created, you have to find a
> > > healthy balance between spreading that information around
> > > (which is both necessary and desirable, of course) and
> > > preserving the financial incentive to create. A system that
> > > only honors one side of that balance will fail.
> >
> > This way of looking at the issue is sure to mislead us, since it
> > emphasizes a statutory principle over more essential ones.
> 
> I'm not a very smart person, so I confess that I find this
> statement confusing.  Balancing the incentive to create
> information with the rights of information users "will
> surely mislead us"?  How does such balance necessitate an
> undue focus on statute?  Can't it simply imply a healthy
> recognition that people should be able to profit from their
> work (even when that work involves the creation of
> information) and that people should also have reasonable fair
> use rights?
> 
> -------------
> Rick Anderson
> rickand@unr.edu