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    <title>cmdln.net_2007-09-19</title>
    <expansionState>1,3,4,12,15,19,25,33,45,50,63,76,84,91,92,100</expansionState>
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  <body>
    <outline text="Intro" Offset="00:17"/>
    <outline text="Word of the Week: computron" Offset="04:00">
      <outline text="http://www.catb.org/jargon/html/C/computron.html"/>
    </outline>
    <outline text="Rant: Is Fair Use a Right?" Offset="06:08">
      <outline text="Disclaimers">
        <outline text="I am not a lawyer or a scholar"/>
        <outline text="Trying to understand the issues for myself"/>
        <outline text="Have been studying this for some time, conclusion will not be surprising"/>
        <outline text="May even see this rant as a rationalization, not an exploration"/>
        <outline text="The answers are never as simple as anyone represents"/>
        <outline text="I may have missed important points, questions"/>
        <outline text="If you want to persuade me otherwise, convince me that my interpretations of the original values is wrong"/>
      </outline>
      <outline text="What is a right?">
        <outline text="a moral or legal entitlement to have or obtain something or to act in a certain way"/>
        <outline text="Two kinds, actually"/>
        <outline text="Natural">
          <outline text="Cannot be taken away from the holder"/>
          <outline text="Also cannot be given away"/>
          <outline text="Free speech, freedom of religion"/>
        </outline>
        <outline text="Non-natural, through social contract">
          <outline text="Primarily to enter into contracts"/>
          <outline text="But also right to petition institutions of government"/>
        </outline>
        <outline text="Right to private property expressed in Constitution as natural right"/>
        <outline text="Would expect to be a non-natural right"/>
        <outline text="Property seen as primary means for exercising other natural rights, pursuing happiness"/>
      </outline>
      <outline text="Is copyright a right and, if so, what kind?">
        <outline text="The ability to create works is natural"/>
        <outline text="Copyright say anything about the right or ability to create"/>
        <outline text="It grants the ability to exclude use of something already created"/>
        <outline text="Exclusions are governed by contracts, like non-natural rights"/>
        <outline text="Copyright has become a default contract of exclusion between the creator, public"/>
        <outline text="A means of securing happiness, exercising natural rights"/>
        <outline text="So it can be seen as a right, but a non-natural right"/>
      </outline>
      <outline text="Is fair use a right and, if so, what kind?">
        <outline text="In the absence of copyright, more of a natural right, anyone can re-use creations"/>
        <outline text="Is this &quot;fair&quot; use, though?  Fair implies consideration for creator"/>
        <outline text="Copyright and fair use are definitely mutually limiting"/>
        <outline text="Is fair use also a form of general contract between a creator and society as a whole?"/>
        <outline text="Does condition use, much like clauses of a contract"/>
        <outline text="More open to interpretation, though"/>
        <outline text="As a non-rivalrous good, re-use of creations is more of a natural right"/>
        <outline text="Jefferson quote: He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."/>
        <outline text="Creators can protect their creations by not sharing"/>
        <outline text="Copyright and &quot;fair&quot; use are about rules for sharing"/>
        <outline text="Fair use, as such, then is a non-natural right, balances copyright in re-use for pursuit of happiness, exercise of natural rights"/>
      </outline>
      <outline text="Is the copyright about perfect control?">
        <outline text="Fair use is not the only exception"/>
        <outline text="Original definition was limited in time"/>
        <outline text="First sale doctrine"/>
        <outline text="Hard to argue that at some point, under some circumstances, copyright ends"/>
        <outline text="If copyright is not meant to be perfect control, what value is supposed to balance it?">
          <outline text="Fair use for promotion, criticism while work is commercially active"/>
          <outline text="Public domain eventually as a common good"/>
          <outline text="First sale allows further spread of work"/>
        </outline>
        <outline text="Would indicate the spread, promotion of copyrighted works is a value"/>
        <outline text="Also that public domain is meant to grow, always be making new, free creations available"/>
        <outline text="Strongly resonates with Jefferson's premier quote on the subject"/>
        <outline text="Schemes to effect perfect control, then, defy the idea of a balance between rights"/>
        <outline text="Creator is not meant to be able to exclude all uses"/>
        <outline text="Would you trust a machine to mediate any other kind of contract?"/>
        <outline text="This is why DRM rankles"/>
        <outline text="Argument of alternate access to analog media rings false"/>
        <outline text="If the expression in one form is not perfectly controlled, why would the expression in another form be any different?"/>
      </outline>
      <outline text="Is fair use obsolete?">
        <outline text="Argued that fair use is just an expression of certain values"/>
        <outline text="Is it the only way to express these values?"/>
        <outline text="Micro transactions, Solveig Singleton from TPW, PFF summit"/>
        <outline text="http://www.techliberation.com/archives/042761.php"/>
        <outline text="If fair use is an expression of public good as a value, then economic arguments are insufficient"/>
        <outline text="Why would you pay in order to promote a work?"/>
        <outline text="Main criticism seems to be that fair use is argued after the fact in court"/>
        <outline text="That courts will always lag technology is a given"/>
        <outline text="The alternatives are limited if fair use cannot be machine mediated"/>
        <outline text="Licensing every use, even for promotion and criticism, is inconsistent with imperfect control"/>
        <outline text="I think this argument proceeds from a flawed assumption"/>
        <outline text="Perfect control seems to be a response to perfect, and cheap, copies"/>
        <outline text="Perfect copies have always been possible">
          <outline text="Text is by definition digital--discrete, with printing press and decent proofing, can create perfect copies"/>
          <outline text="Printing presses were not traditionally cheap"/>
        </outline>
        <outline text="Perfect copies already covered, that is an issue of piracy"/>
        <outline text="A disputative framework is all that is left between poles of perfect control, perfect copy"/>
        <outline text="Maybe the criteria could change, be made more clear?"/>
        <outline text="Vested interests on both sides, tons of court rulings"/>
        <outline text="These are not easy to discount"/>
      </outline>
      <outline text="Fair use is a right, a set of values worth protecting">
        <outline text="The only way to judge it is case by case"/>
        <outline text="A rights holder can always give permission in the absence of clear fair use"/>
        <outline text="Recognition of values of promotion, public good should inform rights holders as much as control"/>
        <outline text="http://www.locusmag.com/2006/Issues/09DoctorowCommentary.html"/>
        <outline text="Involvement of organizations, not individuals, dilutes this appreciation of values"/>
        <outline text="Changes in law have eroded the limits on copyright meant to preserve these values"/>
      </outline>
    </outline>
    <outline text="Outro" Offset="33:36">
      <outline text="Contact me">
        <outline text="Email to feedback@thecommandline.net"/>
        <outline text="Web site at http://thecommandline.net/"/>
        <outline text="IM to command.line@skype"/>
        <outline text="Listener comment line is 360-252-7284"/>
        <outline text="del.icio.us tag is &quot;for:cmdln&quot;"/>
        <outline text="http://twitter.com/cmdln"/>
      </outline>
      <outline text="I'd like to thank libsyn.com for AAC hosting and Wouter de Bie for MP3 hosting"/>
      <outline text="These notes and the show audio and music are covered by a Creative Commons license">
        <outline text="http://creativecommons.org/licenses/by-nc-sa/3.0/us/"/>
        <outline text="Attribution, non-commercial, share alike"/>
      </outline>
    </outline>
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