by Dana Blankenhorn
  Volume VI, No. XX

This Week's Clue: Give Me Fair Use (Or Give Me Death)

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For the Week of May 20, 2002

Why is fair use important?

Fair use is based on the assumption that most people are honest. Fair use lets you give a book to a friend, or borrow it from a library. It means you can copy the CD you just bought for your convenience. It means you can zap the ads on your VCR, or mute them with your TV remote control.

Fair use is also based on the commons, the shared knowledge of all, the civitas from which civilization springs.

In contrast to fair use we have the software license. You never own software, you can't see the software you run so you can't fix it and the software company doesn't have to make it work, either. You can only use it as the software company deems fit, on one machine. You may even be forbidden from criticizing the software. All this is detailed in a contract you have no choice in signing - if you don't agree you don't even get a taste of what it can do.

Under the Digital Millenium Copyright Act everything you read, hear and see goes from fair use to a software contract. You can't give a digital book to a friend, you can't move music off the CD, you can't zap ads from the TV. You are licensed to one copy on one machine, you can't see the code that controls the license and if you break the code you're a software pirate - go rot in jail.

When the DMCA was debated it was seen as a balance between fair use on the one hand and the control of digital (perfect) copies on the other. In practice the DMCA, and the WIPO treaty underlying it, are the biggest assaults on the First Amendment ever attempted by corporations and the governments they control.

Fair use simply does not apply in today's digital world. It doesn't apply because of the assumption of the copyright industries. That assumption is that most people are crooks, that you are a crook. Music sales are down because everyone is "stealing" music with Napster, they say. Movie ticket sales are down because of video pirating. And if people don't watch the commercials it's theft.

Thus government is in league with a few huge conglomerates, aiming to destroy fair use in the name of "copyright." The DMCA has thus become the moral equivalent of the English "Stamp Act" of 1765.

Here's proof. A federal judge threw out fair use arguments (actually he ignored them) last week in the trial of Elcomsoft for breaking Adobe's e-book encryption scheme. An e-book, like a CD or a TV show, is a software contract - First Amendment be damned.

Contrary to what the copyright industries claim, however, copyright is not an absolute right, it is not even an ownership right. Copyright is not "property," the way a piece of land is property. It is a very limited right, granted for limited times, with the aim of encouraging content creators to make more stuff. Article One, Section 8, Clause 8. [The Congress shall have power] "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." (How is this for irony. A link to the direct citation from this page is hijacked by to its home page.) Contrast this with the demands of the First Amendment, "Congress shall make no law ... abridging the freedom of speech, or of the press."

There is a conflict there, and all conflicts are supposed to be subject to balancing tests. But there is no such test in the DMCA, how it has been written into software, or how it has been interpreted by the courts. Copyright is no longer a "limited right." Under the 1998 Bono Act (now before the Supreme Court) it extends to 75 years past the death of the author. That's why the grandchildren of "Gone With the Wind" author Peggy Mitchell claimed the right to prevent publication of a parody of a book published in the 1930s, whose author died in 1949! They settled but the fact the suit could even be filed is monstrous.

Consider its assumption. If something is copyrighted, you can't use it without the "express permission" of the copyright holder. And virtually everything, under the Bono Act, is copyrighted. Thus you can't use anything to create new work. Thus free speech is a dead letter. And you can't lend a book, or copy a CD, or watch a DVD as you see fit, or TV as you see fit, because "fair use" has been destroyed and the rights you enjoyed before today's technology have been tossed. Because digital technology allows multiple, perfect copies, you can't make any.

So far this has been an issue for elites, for "civil libertarians" (an honorable phrase conservatives have turned into a curse) and for a few professional whiners (like me). But these elites can't win this battle by themselves. Intellectual elites can't win against financial and political elites.

It's really up to you. You must demand changes to the law. You must also act in the marketplace.

Reject CDs you can't play in a PC - return them and demand a refund. Reject DVDs that force you to watch commercials - return them and demand a refund.

Petition Congress for a redress of these grievances, demand answers to hard questions from every candidate ("will you vote to repeal the DMCA, yes or no"), and work hard against those who resist.

You have a right to read what you want and share your knowledge. You have a right to watch what you want, however you want. You have a right to technology that allows fair use. You have a right to the assumption that you're not a thief.

I'm not a thief. You're not a thief. There, in the boardrooms, the courtrooms, and the cloakrooms, there are the thieves. If you're not willing to use the liberty of the Constitution to defend liberty, you won't retain it. Your children will pay, and pay and pay, for every word they read, every song they hear, every show they see, and every time they read, hear or see it. And they won't be able to satirize or comment on it or criticize it, either. It will all be produced and controlled by a half-dozen companies, with absolute control of the government, and they will tell you what to think. Contracts trump Constitutions.

That's what is at stake here. Your enemies are both Republicans and Democrats, your friends may all be spending time in jail over the next several years. But every generation is called to battle, and usually they're drafted. Consider this your notice.

I know not what course others may take but as for me give me fair use or give me death!


SSP (Shameless Self-Promotion)

You can show how Clued-in you are by downloading the animated .gif file on the upper-left side of our home page , and copying it onto your own Web site. It shows you want your business partners to get a Clue too. (Clicking directly on the graphic leads to our subscription page.)

Want a really good read? You'll find it in "Boom, Bust & Beyond: The Best of Dana Blankenhorn," now available for purchase at DanaBlankenhorn.Com. You can also order my novel, "The Time Mirror," at the same location.

I still write for Boardwatch and BtoB. You can find my old ClickZ columns here (write and demand they hire me back.) If you need some writing, editing, or consulting help don't hesitate to call on me.

The Print on Demand version of "Living on the Internet" is also available for purchase at BookSurge.Com, for $29.99. And you can get the PDF version for just $7.99 (such a deal). The March update to the book is coming, and it's easy to get on the list via e-mail.

Remember that it's journalism that keeps the Clues coming...


Shameless Promotion

The Great Jerry Pournelle said it best. If you don't know what you're doing find someone who does and pay them what they're worth.

This is as true for Web site design as for anything else. Since 1997 I've been doing myself, as a labor of love. While I love the labor, there are some things I'm just no good at.

Fortunately I not only found someone who is good at those things, named Bill Stocking, but I'm able to pay him something less than he's worth, because he's priceless. If you're not a Web site designer and you want better results give him a call.

Bill's also the person who re-designed this newsletter and he did it with only a few hours notice.


Takes on the News

The War Process

Thomas Friedman usually just thinks he's the Secretary of State. This week he decided to be ruler of the world.

His column for May 12, which spends most of its time denouncing the Internet (but is really about satellite TV - he seems to confuse them) is (like those he derides) long on anger, short on action.

The replacement of CNN (which the first Bushies felt was biased against them) by ANN and al-Jezeera (which are by and for Muslims) is the biggest media story of our time. ANN is based in Europe, al-Jezeera is generally free to be itself (unless the dateline is from Qatar) but both spend their money on the Islamic equivalent of Fox News. It's a one-sided, full color view of the Israeli-Palestinian conflict, a biased view that gives legitimacy to Al-Queda and other disasters for U.S. foreign policy.

The result is that towel-wearing dittoheads act toward Israel and U.S. interests the way their U.S. equivalents do (except most get their "Internet views" second or third hand). They hate Jews, they hate Americans, and they all say they're ready to strap bombs to their belts and set themselves off in a shopping mall near you. (Thank goodness most people are cowards.)

Friedman has his nose-out-of-joint over tactics and attitudes that have been common in the U.S. for over a decade, tactics that rule his own government, and which neither he (nor his paper) have ever really confronted. That's why the current President was selected by the Supreme Court - not the people. When victory is all, when you assume that the other side is evil, you'll do anything for power. You don't have to be Robert Mugabe to recognize that stealing an election is better than facing the wrath of the mob - when you whipped it up. It's them, the other, they must be destroyed. And that's the problem.

Friedman has got one thing right. "It can be reversed only with education, exchanges, diplomacy and human interaction." But just as I have a hard time confronting Brazilian farmers over the rain forest when suburban U.S. developers are creating "heat sinks" all over Atlanta by stripping it bare of trees, I have a hard time buying Friedman's high dudgeon over others' hate when he refuses to confront the domestic variety.

It's not just happening over there, and over here, and it's not just about politics. The assumption of evil in the "other" is behind the copyright wars, as I wrote above. This prevents our technology from moving forward, because we're being forced to buy something that's demonstrably worse than what we had before. A "copy-protected" CD is worse than an old CD, a copy-protected e-book is worse than a book - so why move forward if you're really moving backward? And you're being forced backward, again, by fear, and hatred by the industry of its own customer base, an assumption that "they" (meaning you) are to blame for their lack of profits.

It can be reversed with education, exchanges, diplomacy and human interaction. But first someone with the authority to be heard has to stand up on their hind legs and tell everyone "enough!" If I had the power to go on TV and say this, I would. But I don't. And it seems the only people who do are more interested in fanning the flames of hate - against the market, against the other party, against the other side - than in contributing to the human progress this medium makes possible.


Link Hijacking

My lovely wife wanted to go to a movie recently. It was playing in a mall far out of town. I went to the mall's Web site, which mentioned its theater and included a hyperlink, through which (I assumed) I could check show times.

No, Fandango had hijacked all incoming links to its home page, and (apparently) had an exclusive deal with the movie chain in question. In addition its search engine was Clueless. While the theater was in the Atlanta metro area, it was far enough in the exurbs that the search engine didn't list it there. After 20 minutes of scrolling vainly through ad-filled screens, I found, the solution was to go back to the mall's site, find its zip code, and input that into the Fandango search engine.

Fandango isn't alone, of course. An increasing number of sites are using Javascript or simpler methods to defeat "deep" links and redirect them to home pages. Often these home pages have awful search engines and few navigation aids - you may be unable to reach the page someone else was trying to offer you.

When Foxnews did this several years ago, it was forced to reverse itself by the marketplace. Users who were redirected simply didn't come back. But sites like Fandango and Findlaw have exclusive arrangements with data providers (movie theaters and courthouses) - the market can't operate effectively against these contracts.

Ways should be found to do just that.


One for You 19 For Me

When the Web was new the taxman was pushed back for two reasons. First, the technology was too primitive to allow effective tax solutions. Second (and this was the excuse) the industry was so new that taxation (it was said) would strangle it in its crib.

Well, the technology has gotten better. And as the Internet has replaced activities that were previously taxed heavily (especially telephone services) governments have decided to step in and force the issue.

Thus, starting next July 3, all transactions - Internet services included - made to European Union residents will be subject to V.A.T. It doesn't matter if they're purchased from American companies - the Americans will be expected to charge (and pay) the tax as well.

The Bushies will make a big show of complaint, but know this. Texas has the highest state income tax rate in the U.S. You'd better believe Americans will be paying sales taxes on all Internet related transactions very soon. And the whole range of telephone-related taxes (from the whole range of corrupt dictatorships worldwide) are almost certain to follow.

Want a better solution? Find a better way to pay for the government you need, then get your government to adopt it.


Clued-in, Clueless

Clued-in is is Sears' purchase of Lands End for about $1.9 billion. Assuming the Chicago bureaucrats stay on their side of the Illinois line they've bought an Internet strategy that works.

Clueless is the whining of IT people in "Computerworld's" recent feature on unemployment as well as the feature's assumption that the situation is somehow permanent. Don't whine, work. And the steady-state universe hasn't been accepted theory since I was in college...


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