[A2k] L&E and DRM/ TPMs - parking lot analogy
Arif Jinha
arif@stratongina.net
Mon Apr 27 14:39:01 2009
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I re-wrote my comments on this issue so many times that it is becoming sill=
y, I'll try to be general.
My opinion is that any structure that enables disabled people to participat=
e fully without the need for exceptions, permits, special privileges and ot=
her transaction costs and risks to privacy, is better than one that require=
s such, better for disabled people and better for society. Sometimes a str=
ucture requires this extra privilege for disabled people - like a parking l=
ot, because without privileges gained by identifying disability there can b=
e no reservation of parking spaces.
I think it does not make sense to bring forward a structure that is obstruc=
tive but needn't be, and then grant privileges, because having to gain thos=
e priviliges is more obstructive than a system that is flat in the first pl=
ace. A world with DRM/TPM/strong anti-circumvention that require exception=
s for disabled people is a world more obstructive that an world without it,=
even if it is less obstructive than a world without exceptions.
Article 27 (1) UDHR and Article 15(2) of the ICESCR
'Everyone has the right freely to participate in the cultural life of the c=
ommunity, to enjoy the arts and to share in scientific advancement and its =
benefits.'
The right to participate fully in society bears on all people, but it bears=
particularly on people that are marginalized or prevented from that partic=
ipation by structures that discriminate against them.
The right to material interest of authored works (Article 27(2)-UDHR; Artic=
le 15(3)-ICESCR) is not necessarily in conflict.
General Comment 17 of the Committee on Economic, Social and Cultural Rights=
regarding Article 15
"The right of everyone to benefit from the protection of the moral and mate=
rial interests resulting from any scientific, literary or artistic producti=
on of which he or she is the author is a human right, which derives from th=
e inherent dignity and worth of all persons. This fact distinguishes articl=
e 15, paragraph 1 (c), and other human rights from most legal entitlements =
recognized in intellectual property systems. Human rights are fundamental, =
inalienable and universal entitlements belonging to individuals and, under =
certain circumstances, groups of individuals and communities. Human rights =
are fundamental as they are inherent to the human person as such, whereas i=
ntellectual property rights are first and foremost means by which States se=
ek to provide incentives for inventiveness and creativity, encourage the di=
ssemination of creative and innovative productions, as well as the developm=
ent of cultural identities, and preserve the integrity of scientific, liter=
ary and artistic productions for the benefit of society as a whole."
With privacy, there is a principle that no more information should be gathe=
red and shared than is necessary. From a human rights law standpoint, no mo=
re obstruction should exist than necessary. Necessity in the limitation of=
human rights is justified only in the tension and balance with other human=
rights. If we know that protection of material interest of authors is pos=
sible without these laws (ACTA, DMCA etc.) which are IPR regimes that grant=
entitlements (not human rights), than these laws are not justified if they=
obstruct human rights. Since it is quite possible to create incentives and=
alternative business models and entitlements to authors without those laws=
, than these laws are not justified.
These laws are akin to turning a 'digital parking lot', where we could imag=
ine that every space could be made preferential without obstructing others =
- and disability is not required to be reported - to one more like a parkin=
g lot in the real world where the structure requires exceptions, permits, i=
dentification of disability, than its a reversal of progress for disabled p=
ersons and for society. It's true that it's worse, if there are no means f=
or exceptions in this lot, so IF it is built, it is right that people would=
fight for those exceptions. There are BEST, Second-BEST, and Worse scenari=
os - and these legislations with exceptions are Second-BEST.
----- Original Message -----
From: "Jeffrey A. Williams" <jwkckid1@ix.netcom.com>
To: "Paul Lehto" <lehto.paul@gmail.com>
Cc: "James Love" <james.love@keionline.org>; <a2k@lists.essential.org>; "Ri=
chard M Stallman" <rms@gnu.org>; "Manon Anne Ress" <manon.ress@keionline.or=
g>; "Janet Hawtin" <janet@hawtin.net.au>; "Claude Almansi" <claude.almansi@=
gmail.com>
Sent: Monday, April 27, 2009 7:51 AM
Subject: Re: [A2k] L&E and DRM/ TPMs
> Paul and all,
>
> Nicely argued. I don't see any holes in this rebut argument. I hope
> Jamie will recognize same as well as respect that if access to knowledge
> is righteous enough for the blind, sight impaired or other disabled perso=
ns,
> than it certainly is a good a righteous right for us all and should be
> fought for on that basis as well as for the blind, sight impaired, or
> other disabled. After the voting rights act of 1964 was not just for
> afro americans as a minority, but for including all peoples regardless
> of race, creed, religion, or nationality.
>
> To use Copyright regimes or legal structures that may differ as a means
> to restrict access to relative works is not ethically or morally sound, n=
or
> is it a wise business practice, not to mention bad for international trad=
e,
> especially as such relates to ecommerce. Allowing Guilds, or other IP
> organizations to exert such a regime cannot and must not be allowed to
> stand. The needs and desires of the many must outweigh the needs or
> wishes of the few... On principal and pragmatism alone, DRM's and
> TPM's are an evil that must be eradicated permanently.
>
> Paul Lehto wrote:
>
>> Dear Jamie,
>>
>> Even if I, per your request, set aside the elections issue (despite
>> the lack of any fundamental reason being given to dispute its ability
>> to shed light on the issues here), my point, so far at least, still
>> stands: Once implemented, disability provisions trigger investments
>> (ala Kindle) in circumvention that also happen to co-opt the moral
>> force of arguments for the disabled and then harness that moral force
>> in favor of corporate DRM regimes. DRM is then not only "manageable",
>> it also supports the rights of the disabled and blind. A whole host
>> of talking points can be assembled on this foundation in favor of
>> continuing DRM by DRM advocates, with or without the support of the
>> disabled and blind communities, making it very difficult indeed to
>> further change the status quo.
>>
>> However, I'm inclined NOT to "set aside the elections issue" because,
>> among other things, it's one of the sources of my proof that these
>> political and economic dynamics will in fact result and replicate
>> themselves in new areas (success breeds imitation). That being said,
>> by no means is my argument here limited to "mere" analogy or the
>> process of reason, because this list has ALREADY seen the core
>> arguments made in the specific area of this list that will apply with
>> much more force once DRM is reinforced by provisions intended for the
>> disabled. The clearest example is this is the discussion about the
>> Kindle Swindle.
>>
>> The swindle regardling Kindle shows us the force AGAINST changing the
>> Amazonian (proprietary) status quo, on the grounds that the disabled
>> have already invested in that corporate-controlled regime for
>> accessing knowledge. Now just multiply that globally, and (take your
>> pick) we are dealing with an argument that is either some multiple of
>> the Kindle argument in terms of its force for maintaining the status
>> quo, or is exponentially stronger in terms of its argument in favor of
>> the status quo. (the argument, of course, is that knowledge MUST
>> continue to be supplied in the way that the blind/disabled community
>> has invested in circumventing...)
>>
>> As far as your final point, Jamie, namely that "If people work on a
>> particular campaign different from yours, it doesn't violate your
>> rights" the truth or falsity of this statement depends entirely on the
>> particulars of the campaign. As a general statement, it is false,
>> because a campaign (to use an extreme example) to restrict the right
>> to vote to only those who are landholding males (I rent) is certainly
>> ones that implicate my rights. It's only laziness, I suppose, on my
>> part, plus a wish not to belabor the point, the prevents me from not
>> giving you a hundred counter-examples, though I'll do so for as little
>> as one U.S. dollar per counter-example if anyone wishes such a list.
>> ;)
>>
>> The fact is, and let's start a thread on this particular point if it's
>> disputed, is that Mr. Stallman, myself and many others assert that the
>> rights and interests of the non-disabled are in fact negatively
>> impacted by a campaign focused solely on the disabled, which campaign
>> takes on the weaknesses of special interest legislation. Public
>> interest legislation could well provide for the same or similar
>> rights, but it would also have to address and eliminate the impacts on
>> the non-disabled and thus the public generally. Perhaps such an
>> effort, however framed, could be considered a "public impact
>> statement" analogous to an environmental impact statement.
>>
>> You raise a good point in asking specifically me to clarify "what
>> gives anyone the right to advocate for the continued violation of
>> anybody else's rights?" At least I presume you're hinting that such a
>> principle cuts both ways, and indeed it can or does. That's why the
>> suggestion has been to move forward "shoulder to shoulder" instead of
>> dividing up into separate campaigns and weakening ourselves.
>>
>> Of course, Jamie Love (and everyone else) is free to respond to the
>> appeal to act with unity and solidarity and in the public interest
>> overall with an "to each his or her own campaign" response. I can be
>> invited, with "all due respect," to start my own campaign and
>> micro-organization (relative to some others on this list it would
>> certainly at least start small).
>>
>> But if that is the route that is taken, in whole or in part, then
>> we're acting as special interests scrambling for our own subgroup's
>> piece of the pie. It's everyone's right to do that, but inherent in
>> the commitment to the ideals of this list, as I understand them, is a
>> predisposition in favor of the public interest and in favor of a
>> unified approach/response by asserting that access to knowledge is a
>> universal human right (regardless of whether it is presently
>> recognized as such or not by extant governments).
>>
>> Once again, a meritorious cause (access for the blind/disabled) if and
>> when it takes a micro-approach where each side goes and gets their
>> "own campaign" suffers from the weakness, or the fatal flaw, of
>> considering only the easiest way to achieve its own interests (special
>> interest legislation).
>>
>> The same goal of access for the disabled can be achieved in public
>> interest ways, but the fact that you suggest we all have our own
>> individual campaigns comes perilously close to closing the public
>> interest door, at least when combined with what appears to me to be a
>> less than completely thought-through analysis of the impacts on the
>> non-disabled community. This last point only applies to the extent
>> the response below is indicative of the disabled community as a whole,
>> perhaps there are others willing to listen and learn, on a two way
>> street basis, to find common ground that offers greater
>> "cross-platform" solidarity potential.
>>
>> Paul Lehto, Juris Doctor
>>
>> On 4/26/09, James Love <james.love@keionline.org> wrote:
>> > Dear Paul,
>> >
>> > Let's set aside the elections issue, which no one is debating. This is
>> > about copyright limitations and exceptions, and the cross border shari=
ng
>> > of accessible copies of copyrighted works for people with reading
>> > disabilities.
>> >
>> > Are you saying no one should get the ability to circumvent DRM/TPM
>> > technologies, unless everyone does? Then how does this square with yo=
ur
>> > statement "what gives anyone the right to advocate for the continued
>> > violation of anybody else's rights?"
>> >
>> > I think its a good idea for people to mount various campaigns to have
>> > more freedom to circumvent DRM/TPM, in areas where access is supported
>> > by public policy, or where the DRM/TPM violates rights.
>> >
>> > If people work on a particular campaign different from yours, it doesn=
't
>> > violate your rights. Unless you think it is your right to force peopl=
e
>> > to only work through your campaign. They might not have the time,
>> > mandate, resources, inclination or optimism that others do. If you wa=
nt
>> > people to work on a particular campaign, offer some good reasons for
>> > doing so.
>> >
>> > Jamie
>> >
>> >>Jamie Love: I don't object to the rights of the disabled, but I do
>> >> object to the non-advocacy and continued violation of MY rights. My
>> >> question would be, what gives anyone the right to advocate for the
>> >> continued violation of anybody else's rights?
>> >>
>> >
>> >
>> > On Sun, 2009-04-26 at 12:18 -0700, Paul Lehto wrote:
>> >> I've heard this position Jamie Love advocates, namely an opposition t=
o
>> >> an "all or nothing" approach, sometimes styled as not "allowing the
>> >> perfect to be the enemy of the good" literally thousands of times in
>> >> the area of elections. In that area, the argument is that because
>> >> computerized proprietary voting systems allow more access for the
>> >> disabled (and perhaps some other claimed benefits) we should support
>> >> its continuation -- even though that continuation violates the rights
>> >> of many others...
>> >>
>> >> To answer the above, I always point to the following simple, general
>> >> approach to questions of rights.
>> >>
>> >> (1) Are the rights implicated core rights, or minor ancillary and
>> >> statutory rights?
>> >>
>> >> The preliminary question is whether the rights implicated are core
>> >> rights, or not. If they are core rights, like freedom of speech,
>> >> voting, or freedom from torture, a compromise of the right is nothing
>> >> less than a violation of the right. Examples: If a country such as
>> >> the USA is systematically practicing torture or degrading treatment o=
f
>> >> prisoners on a daily basis, to "compromise" by, say, allowing freedom
>> >> of speech only every other day, or granting weekend breaks from
>> >> torture is not "progress" in the true sense of the word, nor somethin=
g
>> >> we should support because an "all or nothing" approach is not
>> >> something "we are not inclined to wait for."
>> >>
>> >> Is A2K a core right? I believe most or all on this list would answer
>> >> "Yes." Certainly the disabled movement must say so, since it is
>> >> something they can not, or will not, wait for.
>> >>
>> >> (2) If a core right is implicated, may the core rights of some be
>> >> granted, or granted more fully, while continuing to violate the core
>> >> rights of others? Alternatively, would a full or fuller recognition
>> >> of the rights of one group make it more difficult or impossible for
>> >> others to gain recognition of their rights? if so, this is a big
>> >> problem because while one may certainly seek vindication of one's own
>> >> rights, one may not rightfully violate OTHERS' core rights or make
>> >> them substantially more difficult to achieve.
>> >>
>> >> As applied to the issue of access for the disabled, will the
>> >> achievement of fuller rights for them negatively impact others?
>> >>
>> >> Though this last point may perhaps be debated, it seems clear to me
>> >> that achievement of the disabled community's rights without any
>> >> equivalent achievement for all creates a more difficult situation for
>> >> the rights of all.
>> >>
>> >> >From a strategic or tactical position (and "all or nothing"
>> >> incremental positions are just that-- strategic and tactical position=
s
>> >> not anchored FULLY in principle even though they are in part based on
>> >> principle) it puts the A2K community as a whole in a much more
>> >> difficult position to fight from for the following, and other reasons=
:
>> >>
>> >> The DRM-supporting forces, having achieved a wholesale transfer of
>> >> power in their favor, can now effectively neutralize substantial
>> >> portions of the opposition to DRM by pointing to the mercy and
>> >> compassion shown to the disabled, as exemplified by the Blind Union
>> >> treaty language (if adopted) and use that to argue strongly that we
>> >> can not go backwards and, in any event, the DRM regime is just and
>> >> rightful because it does good things for the disabled.
>> >>
>> >> One adopted, the disabled community invests in circumvention
>> >> technologies that it gets to enjoy. If we then are presented with an
>> >> "All" opportunity, the disability community screams about the
>> >> "ultimate Kindle swindle" -- they've invested in an accessibility
>> >> circumvention technology and will now LOSE their ENTIRE investment in
>> >> accessibility if the DRM regime as a whole goes away.
>> >>
>> >> This is how "disability access" effectively functions to incentivize =
a
>> >> "lockdown" of the DRM regime, politically and legally, and divides th=
e
>> >> A2K community into internecine debate between the disabled and
>> >> non-disabled.
>> >>
>> >> Jamie Love: I don't object to the rights of the disabled, but I do
>> >> object to the non-advocacy and continued violation of MY rights. My
>> >> question would be, what gives anyone the right to advocate for the
>> >> continued violation of anybody else's rights?
>> >>
>> >> Would the disability community (if this is even possible) stipulate i=
n
>> >> a binding way that it will not advocate nor countenance the advocacy
>> >> by others of any claim that DRM as a whole should not be done away
>> >> with because blind and disabled folks have invested so much in
>> >> circumvention technologies? Perhaps you've already done so?
>> >>
>> >> Again, the rights of the disabled are quite meritorious, but they
>> >> suffer from all the faults of special interest legislation if they do
>> >> not simultaneously and fully consider the broader impacts on the
>> >> global community as a whole.
>> >>
>> >> Paul Lehto, Juris Doctor
>> >> On 4/26/09, James Love <james.love@keionline.org> wrote:
>> >> > There are several areas where the exclusive rights of authors are
>> >> > subject to
>> >> > limitations and exceptions. To benefit from such L&Es, you may have=
to
>> >> > circumvent TPM regimes. Policy makers are being asked to address t=
his,
>> >> > in
>> >> > several different areas, including but certainly not limited to
>> >> > disabilities. These are normally cases where the freedom to circum=
vent
>> >> > is
>> >> > limited and not general. So far there are few areas where circumve=
ntion
>> >> > is
>> >> > allowed and feasible. While we all await the day when DRM/TPMs are
>> >> > gone,
>> >> > we are inclined to push for expanded areas to circumvent to enable
>> >> > people to
>> >> > benefit from public policies regarding access to works. We are not
>> >> > inclined
>> >> > to wait for all or nothing.
>> >> >
>> >> > Jamie
>> >> > ----------------
>> >> > James.Love@KEIonline.org, http://www.keionline.org
>> >> > Work +1.202.332.2670, US Mobile +1.202.361.3040
>> >> > Geneva Mobile +44.76.413.6584
>> >> > _______________________________________________
>> >> > A2k mailing list
>> >> > A2k@lists.essential.org
>> >> > http://lists.essential.org/mailman/listinfo/a2k
>> >> >
>> >>
>> >>
>> > --
>> > James Love, Director, Knowledge Ecology International
>> > http://www.keionline.org | mailto:james.love at keionline.org
>> > Wk: +1.202.332.2671 | US Mobile +1.202.361.3040 | Geneva Mobile
>> > +41.76.413.6584
>> >
>> >
>>
>> --
>> Paul R Lehto, J.D.
>> P.O. Box #1
>> Ishpeming, MI 49849
>> lehto.paul@gmail.com
>> 906-204-2333
>> _______________________________________________
>> A2k mailing list
>> A2k@lists.essential.org
>> http://lists.essential.org/mailman/listinfo/a2k
>
> Regards,
>
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