[-empyre-] license

Christina Spiesel christina.spiesel at yale.edu
Tue Jan 31 05:17:52 EST 2012

Dear All,

I regret that I have been unable to even properly lurk for the last 
couple of weeks and I know we're at the end of -- but not quite closing 
-- the conversation, so I want to throw in two cents. I submit that both 
piracy and stealing are bad terms in IP situations because they reflect 
capitulation to a misrepresentation that has been going on for some time.

The content industries have persuaded government and members of the 
public that their products are simple property. Intellectual property 
has always had a different status than real property and for good 
reason. At least the framers understood that they were granting limited 
monopolies for /short time/ to writers (etc.) and inventors which 
allowed them to exploit their creations before they became part of the 
public domain.  Fair Use exceptions were created because it was 
understood that certain socially valuable activities, like comment and 
education, were impossible to carry out with too restrictive a regime of 
ownership. Through the large corporations' arguments around ideas of 
property, "a movie is just like  a house or car," they have robbed us of 
the public domain. If they all get their way, with the digital domain 
allowing for automatic inspection of packets, tagging, etc. we will be 
subjected to algorithmic automaticity and it will be impossible to 
say/express anything at all.  It is only context that shows whether q 
quotation is plagiarism or proper scholarly citation after all.  Here 
are links to a recent UK case where a judge upheld ownership of an idea 
-- that which has always been excluded from copyright.
News from 
and the
decision is here: http://www.bailii.org/ew/cases/EWPCC/2012/1.html

Right now with the Bono Copyright Act and its extension in the US, no 
work made in my lifetime will enter the public domain. I think if we are 
going t o protect collective making and individual expression, we must 
all do for the public domain what the SOPA and PIPA objectors did last 
week. -- demand a return to appropriate boundaries for IP. And I think 
that the SOPA and PIPA problems are deeply connected to the theft of the 
public domain and that we actually need a new social contract around all 
of this. I believe that corporate content owners are going to extract 
licensing fees small enough to be taken to a small claims court for any 
use at all. This will simply price many people out of the market 
altogether. Creative people all know that the only way the next 
generation learns how to do things is by imitation of or in response to 
existing culture. By extracting seeingly small fees, the corporate 
owners will in effect be able to pick and choose among users (prior 
restraint of speech, really) and they have no concept of public domain. 
We don't have a lot of time but a door has been opened by the rise 
against those pieces of legislation and people who care about this 
should start thinking about how to carry the debate into the public 
sphere. Obviously, creator need compensation for their work and equally 
obviously (I believe) culture is, finally, the properly of the human 
groups that give rise to it, both as makers and as members of audiences,


On 1/30/2012 4:40 AM, adam wrote:
> I agree with most of what you say except one crucial point. I think we 
> should stop calling file sharing of all-rights reserved works piracy. 
> There is some point where it ceases to be useful to use the term 
> piracy and we must call it stealing.
> Piracy is a great marketing strategy for software companies. Many 
> students cannot afford the licenses of the softwares their courses 
> require them to purchase so they steal the software. So the students 
> 'pirate' it which in the end works well for the producers of the 
> software.
> Calling this piracy softens the blow on the proprietary software 
> companies - they are not turning students into pirates (this term is 
> too soft and has too many +ve connotations in many parts of society). 
> The software companies are criminalising the students - turning them 
> into criminals of necessity.
> That is how stupid copyright is and how stupid and blind educational 
> institutions are.
> We need to do the same with books - stop calling it piracy. Call it 
> stealing and start a movement not to 'pirate' but to not steal ie. 
> produce free content. Don't tell a student to pirate a book or 
> software tell them to get involved in a movement requiring and 
> producing free software and free content.
> adam
> On 01/29/2012 06:51 PM, h w wrote:
>> Adam wrote:
>> =========================================
>> We need to get rid of these fears, stop hiding behind licenses,
>> upholding old values and processes of closed culture within free 
>> culture and embrace the values and consequences of free culture no 
>> matter how uncomfortable they might be.
>> =========================================
>> Normally I am a total lurker on this list. I was very active some 
>> years ago. I've been following this discussion, and what I quoted 
>> from Adam above is, IMHO, a really crucial and important point. Simon 
>> (Hi Simon!) asked about the legalistics, and that is also a good 
>> question. I think it is also a question that comes out of the fear 
>> that Adam describes above, and it is a real one.
>> What this discussion is dancing around is Power. The media companies 
>> have it, and the rest of us don't. The media companies get to call 
>> file sharing, "Piracy". I never understood how some 12 year old boy 
>> in the comfort of his mother's basement downloading Katie Perry's 
>> latest offence against 40,000 years of music making is some how 
>> morally equivalent to the forcible seizure of watercraft by a gang of 
>> armed bloodthirsty thugs hellbent on the slaughter and/or 
>> enslavement, rape, and pillaging of the crew, the theft of the boat's 
>> contents, and then the final gleeful burning and murderous sinking of 
>> the vessel and all left on board.
>> So, firstly - it's not PIRACY. It is file sharing or file trading. 
>> Stop calling it Piracy, and if someone calls it Piracy, correct them. 
>> If they insist on calling it Piracy, tell them you will not discuss 
>> the matter until they use your language. That's my beef with the 
>> Pirate Party. By adopting the epithet as an appropriation of a term 
>> to be worn as some badge of honour is a dated tactic and suboptimal 
>> at best. It doesn't help the argument and it obfuscates what is 
>> really going on: file sharing. So, please: It's Not Piracy. Period.
>> Secondly - we need to get over the notion that the Internet is 
>> rhizomatic and flexible. Egypt proved otherwise. Sure, some people 
>> quickly routed around it, but for the vast majority who are not tech 
>> saavy, the internet went dark for them. SOPA and PIPA and C11 and 
>> ACTA are all just more nails in the coffin. The Internet is now 
>> arboretic - it is stiff and lacks flexibility - it is being cut into 
>> planks and nailed together into walled gardens as we speak. That's 
>> the whole point of replacing laptops with mobile devices.
>> Thirdly - people want files. They are easy to copy. My research has 
>> found that most of the pdf files of full length books I've DL'd tend 
>> to be around 5 megs in size. ePubs are smaller - averaging around 
>> 750k to 1 meg. The library at the school where I teach has about 
>> 550,000 books. At 1 meg each, that's 550 GB of ePubs, a few terabytes 
>> of pdfs. As epubs, the entire library would fit on a drive I can buy 
>> this afternoon for $69. I could dupe that drive very quickly via 
>> USB3. Why my university doesn't simply distribute such drives to each 
>> student when they pay their student fees would elude me if it wasn't 
>> for Adam's point about fear...
>> Fourthly - A license that says "use this I don't care" is not a 
>> license. A license has to be enforceable as it is a contract, and a 
>> contract has to be enforceable otherwise it's not a contract. It's 
>> just a proposal or a statement. If it is not enforceable, it is not a 
>> license. This means that without state sanctioned violence that is 
>> necesary for the enforcement of contracts and the disposition of 
>> property you cannot have a "use license". You can make a statement 
>> "Use this I don't care" and that's fine. But anything that has any 
>> restriction must have enforceability and consequences for infraction. 
>> The consequences are backed by state sanctioned violence. Because 
>> that's how civilisation works. The problem isn't license. The problem 
>> isn't even the illusion of property. The problem is this notion of 
>> civilisation, where people live in such density in specific areas 
>> that the importation of resources is REQUIRED. That is where the 
>> violence begins, and this is
>>   the source of the fear that Adam describes.
>> The first step is to re-set our notions of property. That's a 
>> different discussion, and I need to go prepare lunch for my family....
>> _______________________________________________
>> empyre forum
>> empyre at lists.cofa.unsw.edu.au
>> http://www.subtle.net/empyre

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