Private property & the cypherpunks list(s) (fwd)

Forwarded message:

Date: Thu, 13 Feb 1997 02:08:21 -0800 From: Greg Broiles Subject: Private property & the cypherpunks list(s)

Jim Choate wrote:

...

Please explain how making submissions de facto public domain censors anyone?

What the fuck is "de facto public domain"? It's public domain, or it's not.

The same thing as the current 'de facto copyright'. It's copyrighted or it's not. What's your point here?

Your scheme imposes a cost (loss of intellectual property rights) against authors who would like to make themselves heard.

I am taking intellectual property rights from nobody. If anything I am giving unlimited intellectual rights to the material to humankind for posterity. Sorta cypherpunkish, don't you think?

It also prevents a certain class of messages (those messages whose status is "copyright claimed") from being distributed.

Completely untrue. What it does is say "anything published which does not explicity have a copyright related statement on it is public domain". If you want to keep rights to it, that is fine. Just tell 'em that up front. The actual cost to those of us who feel that statements made in such a forum as this are inherently intended for the betterment of mankind, and therefore a priori copyright is not in the best interest of distribution of those ideas, is no different than the cost under defacto copyright to use fair use headers for public domain material. I believe that such an approach would be economicaly helpful as well. It would provide a market for collecting, organizing, and distributing the content of such material for wider distribution. Under the current standard a small business which wanted to connect to the network, archive the material, catalog it, package it, and distribute it would technicaly have to contact the 1,000+ members and get their specific fair use contracts resolved. This way there is nothing to resolve, if there is a copyright notice and doesn't specificaly permit such use that message would be dropped. The rest would be available for wider distribution and storage.

Further, your suggestion that posters be required to include a "fair use header" is compelled speech.

So is requiring me to post a "fair use header" if I want my material public domain by default. You call it 'tomatoe', I call it 'tomahto'. It comes down to what is best for society and what 'best' means. If best in your book equals 'maximize profit potential' then the current standard is best. If, however, your definition is 'spread the idea as far and wide as possible, may it flourish and have many offspring' then we need to go back to the old standard.

That's three flavors of "censorship" right there. I thought that the new list(s) were supposed to allow anyone to say anything they wanted.

None of these qualify as censorship, I am not applying anything to anyone that is not being currently applied now. I am only taking the alternate tack, which was the legal tact until mid-80's.

(Does "no fair use" count as a "fair use header"? It's not legally enforceable, but it seems like the easiest way to specify "minimum fair use required by law". If not, are you planning to moderate the list to make sure that people use only approved fair use headers? Hmm.)

No need to moderate the list, it does it for me. I don't do anything with the messages, simply let them come and go. Those with no header would be fair game for anyone to use for any purpose they chose. I would hold that your position of implied copyright is a censorship because it prohibits persons from using the material without the authors permission (and probably paying a fee, economic censorship). Cypherpunkish? I think not. Mercenary, could be.

Even if the "copyright abandonment by implication" trick works (and I suspect it will not,

It certainly did until the mid-80's. It certainly is no more of a trick than the forcing of copyright on those who don't want it.

given that an assignment or transfer of copyright must be in writing, 17 USC 204;

And I hold that the submission of a subscription request and the acceptance of the subscription notice conditions received as a reply qualify as that written transfer. If they are unacceptable unsubscribe, which is described in detail in the same subscription notice that details the conditions of access.

and abandonment is essentially an assignment or transfer to the public domain), it will not apply to all text sent to the list.

A good thing.

A person cannot abandon or assign something they do not have; so if someone sends a message to the list which contains text whose copyright is held by a third party, that copyright will still be valid.

That is a good thing. A person should not harm another or their property without their prior permission.

So what you've got is a list where you can't be sure that its contents are public domain, and a draconian rule requiring authors to give up their rights to what they've written.

I have not required anyone to give up anything. All I have required is that authors specificaly state that they want to retain rights to the document. This is no more draconian than requiring a person to write a public domain release on their text if that is their choice. What we have now is a list where the messages come flying across my screen and I can't use them anywhere else unless I go and get somebodies permission first. Is that freedom of speech? Freedom of the press? Sounds more like economic strangulation of technological and social progress and the hindering of the spreading of knowledge.

Do you imagine that all of the many-majordomo servers will implement your "public domain only" rule, or only yours?

No, the point was that different servers could have different policies. That hypothesis is now thoroughly proved wrong. We also now have clear evidence that at least some of the Cypherpunk ideals are not real-world. What we have now is the imposition of these implicit regulations across all the remailers, in some cases against their will. This is not compromise but rather capitulation through duress. Implicit copyright is censorship. This realization is the reason that I dropped it for the cypherpunks list. It was clear that pressing for server-dependant policies was not tenable.

If the rule is intended to apply to all servers, and servers aren't going to be allowed into the network

I am amazed at your ability to construe things that were never stated, let alone implied. I was under the impression that a variety of access policies and various filtering schemes was one of the stated goals. I also feel you give me entirely too much credit and not enough to Igor, firebeard, and others who are involved. Whether you know it or not, they are not straw men nor pseudonyms that I employ.

without agreeing to implement it locally, um, tell me again about that "free speech" thing? Aren't you just taking advantage of your position as a person working on the many-majordomos project to impose your ideas about intellectual property on the rest of the list? Is such a strategy compatible with "free speech"?

No more so than the imposition of copyright to hinder the free and unbridled exchange of ideas.

Also, how could a rule like this possibly be compatible with a Usenet gateway? There's no chance at all that you can expand a local rule on your system to all of Usenet through a gateway.

A very good argument on why in our current system de facto copyright actualy hinders free exchange of ideas. Thanks, I hadn't thought of that aspect.

And Declan McCullagh wrote:

...

I forward articles to cypherpunks that are copyrighted by my employers, or magazines like Playboy and Wired for which I write freelance pieces.

I like to think these articles have some value. I will not forward any of them, nor would I be able to, if they magically became "public domain."

Which are good points

Strawman arguments to cover the motives of profit driving them. I suspect that if the magazine (who probably own the actual copyright) agreed to allow them to be presented in total before posting would require that some sort of explicit copyright notice be retained. I am shure the articles have some value, a check was written for them at some point I believe.

- also, don't forget that, from time to time, people have even posted code to the cpunks list, and many software authors like to retain copyright in their code so that they can insist on things like noncommercial distribtion or credit where the code is reused. If a work is truly "public domain", the author has no power to insist on those things.

Certainly they do, put the statement in the code header - just like any programmer with a clue is going to do now. All I am asking is that you give me a fair shot at figuring out what you individualy want done with your material when I see it. Should I save it for later use or simply shit-can it because I don't want to deal with the hassle of getting permission. Currently I shit-can just about everything for this reason unless it has some sort of technical chart or table I can re-arrange or is related to Advanced Squad Leader or Traveller. Does that sound like the ideal atmosphere to expand knowledge? Is that how you want your ideas and commentary to end up? Hell, under the current system I take a completely unwarranted risk if I do nothing more than print out your email and then show it to somebody else. Why? Because I don't know before hand whether that is ok with you or do you really want to retain distribution rights. To be completely safe I need to email you and ask permission to do that. Unacceptable restraint of speech. The only option that leaves me is no speech because I can't afford it. Not very cypherpunkish.

This proposed rule seems to limit postings to those which are perceived by their authors to be without commercial or reputational value. Is that a good idea?

Not if that was what was proposed here, fortunately reality bears no resemblance to your interpretation. What I really find interesting is that in the 3 years SSZ has been up and the 8 mailing lists (with about 300 subscribers total) nobody has ever complained about the public domain policy and nobody has ever put a copyright header on their messages. All these lists are technical and several of them are directly involved with technical development of projects, some for commercial apps. Jim Choate CyberTects ravage@ssz.com