[A2k] L&E and DRM/ TPMs

[Arif Jinha]

That's correct in my view,

This post is long and it is a rant, I am fed up and insomniac so it may not
be for you and forgive me please, I need it!

 But I recall from Utah Phillips that change came from people who were
emotionally engaged, armed only with their sense of degradation could they
sustain the labour movement.  And for whatever we think of unions today, we
should bow in respect to that dedication.  Phillips also passes on a
challenge of 'why can't you young people, with all you've got today, do the
same' ; a challenge that was passed to him and I pass to you all.

I preface this with the Right to Development because I think for all of us,
for the disabled, for educators etc. it is about self-determination.

The General Assembly,
Bearing in mind the purposes and principles of the Charter of the United
Nations relating to the achievement of international co-operation in solving
international problems of an economic, social, cultural or humanitarian
nature, and in promoting and encouraging respect for human rights and
fundamental freedoms for all without distinction as to race, sex, language
or religion,
Recognizing that development is a comprehensive economic, social, cultural
and political process, which aims at the constant improvement of the
well-being of the entire population and of all individuals on the basis of
their active, free and meaningful participation in development and in the
fair distribution of benefits resulting therefrom,

Considering that under the provisions of the Universal Declaration of Human
Rights everyone is entitled to a social and international order in which the
rights and freedoms set forth in that Declaration can be fully realized,

Recalling the provisions of the International Covenant on Economic, Social
and Cultural Rights and of the International Covenant on Civil and Political
Rights,

Recalling further the relevant agreements, conventions, resolutions,
recommendations and other instruments of the United Nations and its
specialized agencies concerning the integral development of the human being,
economic and social progress and development of all peoples, including those
instruments concerning decolonization, the prevention of discrimination,
respect for and observance of, human rights and fundamental freedoms, the
maintenance of international peace and security and the further promotion of
friendly relations and co-operation among States in accordance with the
Charter,

Recalling the right of peoples to self-determination, by virtue of which
they have the right freely to determine their political status and to pursue
their economic, social and cultural development,

Recalling also the right of peoples to exercise, subject to the relevant
provisions of both International Covenants on Human Rights, full and
complete sovereignty over all their natural wealth and resources,

Mindful of the obligation of States under the Charter to promote universal
respect for and observance of human rights and fundamental freedoms for all
without distinction of any kind such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status,

Considering that the elimination of the massive and flagrant violations of
the human rights of the peoples and individuals affected by situations such
as those resulting from colonialism, neo-colonialism, apartheid, all forms
of racism and racial discrimination, foreign domination and occupation,
aggression and threats against national sovereignty, national unity and
territorial integrity and threats of war would contribute to the
establishment of circumstances propitious to the development of a great part
of mankind,

Concerned at the existence of serious obstacles to development, as well as
to the complete fulfilment of human beings and of peoples, constituted,
inter alia, by the denial of civil, political, economic, social and cultural
rights, and considering that all human rights and fundamental freedoms are
indivisible and interdependent and that, in order to promote development,
equal attention and urgent consideration should be given to the
implementation, promotion and protection of civil, political, economic,
social and cultural rights and that, accordingly, the promotion of, respect
for and enjoyment of certain human rights and fundamental freedoms cannot
justify the denial of other human rights and fundamental freedoms,

Considering that international peace and security are essential elements for
the realization of the right to development,

Reaffirming that there is a close relationship between disarmament and
development and that progress in the field of disarmament would considerably
promote progress in the field of development and that resources released
through disarmament measures should be devoted to the economic and social
development and well-being of all peoples and, in particular, those of the
developing countries,

Recognizing that the human person is the central subject of the development
process and that development policy should therefore make the human being
the main participant and beneficiary of development,

Recognizing that the creation of conditions favourable to the development of
peoples and individuals is the primary responsibility of their States,

Aware that efforts at the international level to promote and protect human
rights should be accompanied by efforts to establish a new international
economic order,

Confirming that the right to development is an inalienable human right and
that equality of opportunity for development is a prerogative both of
nations and of individuals who make up nations,

Proclaims the following Declaration on the Right to Development:

Article 1

1. The right to development is an inalienable human right by virtue of which
every human person and all peoples are entitled to participate in,
contribute to, and enjoy economic, social, cultural and political
development, in which all human rights and fundamental freedoms can be fully
realized.

2. The human right to development also implies the full realization of the
right of peoples to self-determination, which includes, subject to the
relevant provisions of both International Covenants on Human Rights, the
exercise of their inalienable right to full sovereignty over all their
natural wealth and resources.

Article 2

1. The human person is the central subject of development and should be the
active participant and beneficiary of the right to development.

2. All human beings have a responsibility for development, individually and
collectively, taking into account the need for full respect for their human
rights and fundamental freedoms as well as their duties to the community,
which alone can ensure the free and complete fulfilment of the human being,
and they should therefore promote and protect an appropriate political,
social and economic order for development.

3. States have the right and the duty to formulate appropriate national
development policies that aim at the constant improvement of the well-being
of the entire population and of all individuals, on the basis of their
active, free and meaningful participation in development and in the fair
distribution of the benefits resulting therefrom.

Article 3

1. States have the primary responsibility for the creation of national and
international conditions favourable to the realization of the right to
development.

2. The realization of the right to development requires full respect for the
principles of international law concerning friendly relations and
co-operation among States in accordance with the Charter of the United
Nations.

3. States have the duty to co-operate with each other in ensuring
development and eliminating obstacles to development. States should realize
their rights and fulfil their duties in such a manner as to promote a new
international economic order based on sovereign equality, interdependence,
mutual interest and co-operation among all States, as well as to encourage
the observance and realization of human rights.

Article 4

1. States have the duty to take steps, individually and collectively, to
formulate international development policies with a view to facilitating the
full realization of the right to development.

2. Sustained action is required to promote more rapid development of
developing countries. As a complement to the efforts of developing
countries, effective international co-operation is essential in providing
these countries with appropriate means and facilities to foster their
comprehensive development.

Article 5

States shall take resolute steps to eliminate the massive and flagrant
violations of the human rights of peoples and human beings affected by
situations such as those resulting from apartheid, all forms of racism and
racial discrimination, colonialism, foreign domination and occupation,
aggression, foreign interference and threats against national sovereignty,
national unity and territorial integrity, threats of war and refusal to
recognize the fundamental right of peoples to self-determination.

Article 6

1. All States should co-operate with a view to promoting, encouraging and
strengthening universal respect for and observance of all human rights and
fundamental freedoms for all without any distinction as to race, sex,
language or religion.

2. All human rights and fundamental freedoms are indivisible and
interdependent; equal attention and urgent consideration should be given to
the implementation, promotion and protection of civil, political, economic,
social and cultural rights.

3. States should take steps to eliminate obstacles to development resulting
from failure to observe civil and political rights, as well as economic
social and cultural rights.

Article 7

All States should promote the establishment, maintenance and strengthening
of international peace and security and, to that end, should do their utmost
to achieve general and complete disarmament under effective international
control, as well as to ensure that the resources released by effective
disarmament measures are used for comprehensive development, in particular
that of the developing countries.

Article 8

1. States should undertake, at the national level, all necessary measures
for the realization of the right to development and shall ensure, inter
alia, equality of opportunity for all in their access to basic resources,
education, health services, food, housing, employment and the fair
distribution of income. Effective measures should be undertaken to ensure
that women have an active role in the development process. Appropriate
economic and social reforms should be carried out with a view to eradicating
all social injustices.

2. States should encourage popular participation in all spheres as an
important factor in development and in the full realization of all human
rights.

Article 9

1. All the aspects of the right to development set forth in the present
Declaration are indivisible and interdependent and each of them should be
considered in the context of the whole.

2. Nothing in the present Declaration shall be construed as being contrary
to the purposes and principles of the United Nations, or as implying that
any State, group or person has a right to engage in any activity or to
perform any act aimed at the violation of the rights set forth in the
Universal Declaration of Human Rights and in the International Covenants on
Human Rights.

Article 10

Steps should be taken to ensure the full exercise and progressive
enhancement of the right to development, including the formulation, adoption
and implementation of policy, legislative and other measures at the national
and international levels.

And.........my rant follows

Rights are inherent, fundamental and are natural law. Copy'right' is not a
right, but  privilege.  Intellectual property rights holders are not rights
holders, they hold privileges. These are misnomers that need correction, and
the words are backwards.   We need to take back the discourse and take back
the balance of power, because we are in fact the rights holders, and
publishers cannot be, though individual authors can and do have a right to
protection of their material interest.  But we are rights holders, not
privilege-seekers.

Why then would we have a system where, as discussed on this list, numerous
groups have to established exceptions to protect them from the law so they
can exercise fair use, accessibility, materials for study and teaching, to
accomplish their public service role as archivists? Why on earth would we
have a system where a black market for scientific journal article copies
exists in the developing world?

Why can we not assume fair use whenever works are shared or copied, and have
the burden on 'rights-holders' (who should be privilege seekers) to show
where exceptions exist and use is unfair.  Is it unfair to listen to music,
read, and study by sharing, borrowing from a library, making a copy from the
real rights holders point of view? No!! That's natural.  Are we
criminalizing joy! Legalize it!

Freedom to share puts those who have few dollars on par with participation
in society with those who have a lot.  And as for right to protection of the
material interest of the author, that can be achieved in a different way
that doesn't confer privileges on them or third-party privilege-holders that
interferes with my right to be human in society.

The truth is, sorry to say to the IP privilege holders, is that there is
oversupply of intellectual property in the market, and undersupply of money.
The richest consumer markets for music, books, dvds and the rest are all in
debt paying usurous fees to credit card companies.  IP is over-valued
becuase the law distorts the market and confers IP privilege holders
excessive market power, and that valuation is contested by open innovation.
The entire market is distorted and in shambles, IP wants to sell beyond what
people can afford but what people can easily share. It can't control the
sharing, so it tries harder and harder to fail.

People who physically labour to produce food for the world to eat have no
market power, their inputs that are IP-laden, their margins are tight, they
are poor.  People who labour to extract minerals are poor, and realize
pennies from a thousand dollar computer.  People who fish are poor.  The
final price of any consumer product typically shows the fat to be in IP,
marketing, adminstration and retail, and next to nothing for producers and
labourers.  The majority of people in the world are too poor to purchase
intellectual property, so they obtain the content by sharing. Even
shopkeepers in the North, as I was told today by one, take contracts from
universities for course packs and pocket the royalties.  Their margins are
tight.  They are desperate. They will go under, they have none of the
protection of IP privilege holders.

I have way more CDs than I should if I lived within my means, but I am a
musician and I need music.  But I'm not going to buy everything I'd like to
hear once or twice.  I'm going to listen to it on Seeqpod (well, not
anymore). I can't afford to see every crap movie that Hollywood makes, but I
can try and see if it's not crap by watching it on Graboid..I'm not going to
buy a CD that I already bought and lost.  I'm not going to pay for a
scholarly article, I'll never again buy a textbook or a coursepack.  I can't
afford it.  But I'm sure as hell not going to let that stop me from
attaining the opportunities that are afforded the wealthy.

This world is messed up.  There's piracy in Somalia but it all started
because Western nations were dumping their toxic waste on the Somali coast
and taking fish out of the mouths of Somali people to sell in Europe,
starving and poisining that country.  Corporations now from South Korea, to
the Oil States and China are secretly buying up Africa's fertile land now
that a food crisis has emerged, they will feed themselves and they will
create famine again in Africa by exporting the food with good profits in a
shortage.  Even though we know from research that Africa's famines in the
past were not natural disasters, but man-made.  China's industrial complex
will use up its water source by 2030 at the current pace.  Climate change is
no longer a worry for the next generation, it's happening now.  An inhabited
island has already sunk, making its people homeless. In Canada, there are
300,000 homeless people from next to nothing in the last three decades
because we wanted a balanced budget, and that was more important than
anything.  In Canada, Aboriginal people are 76th on the HDI while the rest
of us are 4th.  The Asian economic crisis was characterized by bad lending,
crony capitalism, bank deregulation and liberalization of finance.  The
current global economic crisis was characterized by bad lending, crony
capitalism, bank deregulation and liberalizaton of finance.  What has been
learned since the 1970s, really.  Technology is a tool, that is not
learning.  Learning has a meaning.  That meaning is best negotiated by
everyone, not just a few, in this era of collective and systemic risk.

After WWII, we said 'never again'.  We said 'war as a last resort'.  After
2001 we went to war when it was not the last resort, we even invented
pre-emptive war. We are not learning a goddamm thing from the past.  We have
let down the courageous leaders of the past, Martin Luther King, Ghandi, and
even the spirit of the enlightenment that led us to the modern era.  We have
stood by while government was captured by businesss. We have ignored
scientists for twenty years on climate change and still no adequate change.
We will fail to meet the MDG's.  We have undermined the UN as it undermined
itself.  We've failed on every single preventeable disease in the developing
world.  We've witnessed Sierra Leone deteriorate to the point where kids
carry machine guns that say 'War is my Food', where child soldiers are
forced to kill their families after being forcibly addicted to heroin by
injecting under the eye.  We failed to prevent genocide in Rwanda, and are
failing in Darfur.  Every natural disaster that occurs in a poor region
multiplies the human toll several times over.  People in the desert in
California use water for personal indoor swimming pools.

So, do we think that anyone has the right to say to the majority world, to
the disabled, to anyone seeking a way to communicate that they don't have
the right to reach for what they need.  Those who have had privileges in
this world have proven that they cannot exercise their power responsibly
through a monopoly of knowledge, a monopoly of the medium, as discussed by
the famous Canadians Innis and MacLuhan, pioneers in communications
research. Yet there are academics today that cannot grasp the importance of
the Access Principle, do no recognize the reflexivity of the act of
publishing and the decision to make it open.

The rest cannot arrive at equitable power with a means to transform
knowledge and culture in a globalized world whose threats they cannot
escape.  If communication isn't opened in this world there isn't hope.  We
are just recreating the same problem over and over again, donor and
recipient, sufferer and benificient, greedy and dispossessed.

The fact is that the minority world needs the knowledge of the majority
world and vice versa.  The less endowed need equity in the non-tangibles.
The minority world needs to allow the majority world to breathe.  The
minority world has to realize that the zero-sum game is over and we all
lost.  The rich and poor worlds have to realize that the reciprocal-sum game
is on.  Access to knowledg is the reciprocal-sum game.  Thomas Jefferson was
correct, when someone ligths her taper at mine, they increase their light
without darkening mine.  In fact, with knowledge, culture, music, humanities
and communication in general they not only do not darken mine, they increase
it. That is the reciprocal-sum game.  Do you want your children to live in a
world that is more, or less just than today?

It is also said that, 'if you have come to help me, you are wasting your
time, if you have come  because your liberation is bound up with mine, then
let us walk together'.

So, we need access to knowledge, but more than that, we need to share
wisdom.  People have lived on the African continent for 100,000 years.  It
is foolish to think that suddenly a modern society only a second old in the
history of the world has got it together, and all intellectual property is
mostly inheritance within and across culture. Most of the time we have it
backwards.  We have it backwards with rights and privileges.

We have a right to fair use, privileges may be negotiated to protect the
moral interests of the author (not the publisher).Blind people should not
put up with any restriction on their freedom, nor should the poor and
indebted.  It's our right to listen to music, read books, and study.

It is written in 500 BC.

Be aware when things are out of balance

When rich speculators prosper
while farmers lose their land
When government officials spend more money
on weapons instead of cures
When the upper class is extravagant and irresponsible
While the poor have nowhere to turn

All of this is robbery and chaos.
It is not in keeping with the Tao

Lao Tzu, Tao Te Ching XI

.  End of rant.







----- Original Message -----
From: "Seth Johnson" <seth.johnson@RealMeasures.dyndns.org>
To: "Paul Lehto" <lehto.paul@gmail.com>
Cc: <james.love@keionline.org>; <a2k@lists.essential.org>; "Richard M
Stallman" <rms@gnu.org>
Sent: Thursday, May 07, 2009 12:10 AM
Subject: Re: [A2k] L&E and DRM/ TPMs


>
> 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
>
> --
>
> RIAA is the RISK!  Our NET is P2P!
> http://www.nyfairuse.org/action/ftc
>
> DRM is Theft!  We are the Stakeholders!
>
> New Yorkers for Fair Use
> http://www.nyfairuse.org
>
> [CC] Counter-copyright: http://realmeasures.dyndns.org/cc
>
> I reserve no rights restricting copying, modification or distribution
> of
> this incidentally recorded communication.  Original authorship should
> be
> attributed reasonably, but only so far as such an expectation might
> hold
> for usual practice in ordinary social discourse to which one holds no
> claim of exclusive rights.
>
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