[A2k] L&E and DRM/ TPMs

Thu May 7 05:03:24 2009

Note that the first Supreme Court copyright case in the United States,
Wheaton vs. Peters, made clear that copyright, as given by the US
Federal Constitution, is statutory, not a reflection of common law
traditions inherited from England within the several original
colonies, which differed in any case among them [in particular,
Pennsylvania had no concept of perpetual copyright]. The case is well
worth reviewing in the present context of multinational treaty-making
for so-called "intellectual property" rules [Wheaton v. Peters:
http://supreme.justia.com/us/33/591/case.html].

When we stand up for fundamental rights, we assure our capacity to
govern ourselves. This must be held before our eyes in the global
context right now.

The argument for government of, by and for the people -- which is
largely the same as the basic argument against tyranny -- is the
argument that we hold rights by our nature as humans, before we enact
governments to assure such rights that we cannot perfect in our
individual capacities. The United States is unique in that its
revolution originally made the cause of fundamental rights [properly
understood as rights that are inherent to human beings by their
nature, prior to the governments they institute on earth], the very
basis for rebellion against a government that does not recognize those
rights.

Seth

Paul Lehto wrote:
>
> I've heard this position Jamie Love advocates, namely an opposition to
> 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 of
> 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 something
> 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 positions
> 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 the
> 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 in
> 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
this, in
> > several different areas, including but certainly not limited to
> > disabilities.  These are normally cases where the freedom to
circumvent is
> > limited and not general.  So far there are few areas where
circumvention 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
> >
>
> --
> 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

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RIAA is the RISK!  Our NET is P2P!
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http://www.nyfairuse.org

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