From: Jim Choate <ravage@EINSTEIN.ssz.com>
Date: Fri, 14 Feb 1997 06:56:26 -0800 (PST)
To: cypherpunks@toad.com
Subject: Private property & the cypherpunks list(s) (fwd)
Message-ID: <199702141456.GAA07230@toad.com>
MIME-Version: 1.0
Content-Type: text/plain



Forwarded message:

> Date: Thu, 13 Feb 1997 02:08:21 -0800
> From: Greg Broiles <gbroiles@netbox.com>
> 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